Muzahid and Minister for Immigration and Multicultural Affairs

[2006] AATA 816

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2006] AATA 816

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          N2006/628     

GENERAL ADMINISTRATIVE DIVISION		)
Re		FIROZ AL MUZAHID

Applicant

And MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

Respondent

DECISION

Tribunal Senior Member M. D. Allen

Date28 August 2006

PlaceSydney

Administrative

Appeals

Tribunal

 

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          N2006/628     

GENERAL ADMINISTRATIVE DIVISION		)
Re		FIROZ AL MUZAHID

Applicant

And MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

Respondent

DECISION

Tribunal Senior Member M. D. Allen

Date28 August 2006

PlaceSydney

DecisionFOR the reasons given orally at the conclusion of the hearing, pursuant to subsection 29(7) of the Administrative Appeals Tribunal Act 1975, it is ordered that the decision under review is affirmed.

[Sgd] M.D. Allen

Senior Member

CATCHWORDS

Claim for the grant of Australian citizenship - Meaning of the term ‘activities beneficial to the interests of Australia’ – Spouse is an Australian citizen - Discretion of the Minister under subs 13 -  Interpretation of The Australian Citizenship Instructions as to what constitutes hardship.

Australian Citizenship Act 1948 – subs 13(1) and subs 13(4)

Local Government and Ethnic Affairs v Roberts (1993) 41 FCR 82

Re Wong v Minister for Immigration and Ethnic Affairs (1996) 41 ALD 672

REASONS FOR DECISION

Senior Member M.D. Allen

1. At the conclusion of the hearing of the above matter the terms of the decision intended to be made and the reasons therefore were stated orally. After service upon the Respondent and the Applicant, through their solicitors, of a copy of the decision that was in fact made, the Respondent, pursuant to subsection 43(2A) of the Administrative Appeals Tribunal Act 1975, requested the Tribunal to furnish to him a statement in writing of the reasons of the Tribunal for its decision.

2.      The oral reasons for decision have been transcribed by Auscript, the Commonwealth Reporting Service. Whereas those oral reasons may reflect the inelegance of an extempore decision, they are in fact the reason for the said decision.

3.      The said transcript is annexed hereunto and furnished to the Respondent and to the Applicant as it is the reason for the Tribunal’s decision.  

I certify that this and the preceding pages are true copies of the decision and reasons for the decision herein of:

Senior Member M. D. Allen

Signed:  ………………………………………………………

Associate

Dates of Hearing  28 August 2006
Date of Decision  28 August 2006
Applicant  Firoz Al Muzahid
Solicitor for the Respondent    Avinesh Chand, Clayton Utz  

O/N26780

DRAFT DECISION  [12.09pm]
ADMINISTRATIVE APPEALS TRIBUNAL
Matter No N2006/628
By MR M.D. ALLEN, Senior Member
FIROZ AL MUZAHID and MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
SYDNEY, 28 AUGUST 2006

MR ALLEN: By application made 29 May 2006 the applicant sought review of a decision by a delegate of the respondent made 1 May 2006 refusing his claim for the grant of Australian citizenship. The applicant has held a permanent residency visa since 23 September 1995. The criteria for the grant of Australian citizenship are set out at section 13 of the Australian Citizenship Act 1948, namely subsection (1):

The Minister may, in the Minister's discretion, upon application in accordance with the approved form grant a certificate of Australian citizenship to a person who satisfies the Minister that:

(a) the person is a permanent resident;
           (b) the person has attained the age of 18 years;
           (c) the person understands the nature of the application;

(d) the person has been presented in Australia as a permanent resident for a period of or for periods amounting in the aggregate to not less than one year during the period of two years immediately preceding the date of the furnishing of the application;

(e) the person has been present in Australia as a permanent   resident for a period of or for periods amounting in the aggregate to not less than two years during the period of five years immediately preceding the date of the furnishing of the application;

(f) the person is of good character;
           (g) the person possesses a basic knowledge of the English language;

(h) the person has an adequate knowledge of the responsibilities and privileges of Australian citizenship; and
(j) if granted a certificate of Australian citizenship the person is likely to reside or to continue to reside in Australia or to maintain a close and continuing association with Australia.

No dispute exists that the applicant meets all the criteria except those in paragraphs 13(1)(d) and (e).  The periods the applicant has in fact spent in Australia were immediately preceding the date of the furnishing of his application, 55 days in the last five years and 12 days in the last two years. 

Notwithstanding the provisions of subsection (1) of section 13, paragraph 13(4)(b)(i) of the Australian Citizenship Act grants a discretion to relieve from the provisions of subsection (1) of section 13, namely:

The Minister may, in the Minister's discretion, treat a period during which the applicant:

(a) was a permanent resident;
           (b) was not present in Australia; and

(c) was engaged in activities that the Minister considers beneficial to the interests of Australia as a period during which the applicant was present in Australia as a permanent resident. 

The term "beneficial to the interests of Australia" was discussed in Minister for Immigration, Local Government and Ethnic Affairs v Roberts (1993) 41 FCR 82 at 87, namely:

The term "activities beneficial to the interests of Australia" means something in the nature of activities which provide some advantage to Australia whether commercial or otherwise.  The concept necessarily connotes some public interest of Australia even if of a general or non‑specific character and means more than the private interests of the respondent.  The section requires some objective benefit to Australia.

The decision went on to say:

It is quite another matter as to whether the construction of rigs in the United Kingdom and Brunei represent any such benefit, still less whether Mr Roberts work as a rigger at those places was advantageous to this country.  To reach such conclusions some evidence would have been required demonstrating the benefits propounded.

A further discretion to grant citizenship is to be found in subsection (9) of section 13 of the Act, which reads:

The Minister may, in the Minister's discretion, upon application and in accordance with the approved form grant a certificate of Australian citizenship to a person (a) who has not attained the age of 18 years, (b) who has attained the age of 18 years, and (2) has made application before attaining that age, or (c) who is a permanent resident and is the spouse of an Australian citizen.

In this case, as stated earlier, the applicant is a permanent resident and his wife is an Australian citizen. 

The Australian citizenship instructions give some guidance as to what might constitute hardship for the purposes of subparagraph (c), subsection (9) of section 13, but of those instructions Deputy President Purvis, in re Wong v Minister for Immigration and Ethnic Affairs (1996) 41 Administrative Law Decisions 672 at paragraph 23 said:

The Tribunal is satisfied that it should go beyond the citizenship instructions, that is the Ministerial policy in considering the exercise of the discretion under paragraph 13(9)(c) of the Act.  The Tribunal must take into account those factors which it considers relevant to the exercise of the discretion, including the applicant's family, social and business connections in Australia as well as the matters referred to in the guidelines, and decide whether or not the applicant has established such a case as to warrant the grant of citizenship.  To this end, following the approach of Grey J in Le Supra some of the considerations expressed elsewhere in section 13 and particularly subsection (1) of section 13 may be taken into account.

But at paragraph 24 the learned Deputy President then took into account the period of time the applicant had spent outside Australia.  The citizenship instructions themselves state at paragraph 4.5.2 that requirements the applicant is usually required to meet are that:

The applicant is likely, if granted a certificate of Australian citizenship, to reside or to continue to reside in Australia or to maintain a close and continuing association with Australia -

I would simply interpose that I consider that the applicant would have a close and continuing association with Australia as his wife and child continue to reside here.  But para 4.5.2. went on to say that:

A requirement which should usually be met is  that the applicant has been present in Australia as a permanent resident for at least two years in the five years immediately before the application, at least 12 months of which must have been within the two years immediately prior to that date unless the applicant has been a permanent resident in Australia continuously for the 12 months immediately prior to the application and would otherwise suffer significant hardship and disadvantage.

Paragraph 4.3.33 of the instructions refers to hardship and states:

As a matter of policy the discretion would usually only be exercised in one of the following situations of hardship or disadvantage, namely that the applicant can demonstrate that he has been refused employment solely on the grounds that the employment is restricted to Australian citizens and that the alternative sources of employment are not reasonably available to him, the applicant would be excluded from travelling internationally because he cannot obtain a passport, or is excluded from travelling with immediate Australian family, or the applicant would not otherwise be eligible to represent Australia in an international forum, or be selected to represent Australia in a national representative team or group.

I might state that the evidence is quite clear that the last of those provisions does not apply.  Likewise there is no evidence that the applicant would be excluded from travelling. 

The applicant is currently and has been for some time employed in the maritime industry by a Singaporean‑based company.  His duties with that company involve him having to fly to points all around the globe at short notice.  He is, however, experiencing visa difficulties by virtue of the fact that he must now travel on a Bangladeshi passport.  If he had an Australian passport a number of these difficulties would no longer exist.  Currently the applicant is under pressure from his employers to obtain a passport which would be more favourably viewed by more countries, especially the European Union.  He is, however, entitled to apply for a Singaporean passport, but would prefer to maintain his links with Australia.

The applicant's wife and child are Australian citizens and reside in Sydney.  They did spend some three years in Singapore with the applicant but could not fully adapt to that island's lifestyle and returned to Australia where the applicant's son is continuing his education.  It was thought by the family that his chances of entering university would be better in Australia as opposed to Singapore. 

Even if granted Australian citizenship the applicant intends to stay in Singapore for at least two years as then he will be entitled to superannuation.  The applicant has applied for jobs in Australia but has been unsuccessful.  However, there is no evidence before me that he has been refused employment solely because he is not an Australian citizen, although I do acknowledge that it is a requirement for applying for Department of Defence employment.  There is no specific evidence that he has actually applied for employment with the Department of Defence, although I accept that he has genuinely sought work in Australia. 

So far as the applicant's current employment is concerned I note it has relevance to shipping and the oil industry and environmental questions arising therefrom, but I can find no evidence that it is currently of benefit to Australia.  Moreover I do not regard the applicant as suffering hardship because of a failure to obtain Australian citizenship.  He has permanent residency and in reality wants Australian citizenship to facilitate his employment.  As was pointed out by Deputy President Purvis in re Wong supra that in that case there was no evidence before that Tribunal that the applicant suffered any discrimination when travelling with his family overseas as a result of the difference in their nationalities, but the learned Deputy President went on to stress:

Even if such evidence had been brought it cannot be said that having to wait longer at an overseas airport or having to apply for a visa amounts to anything more than inconvenience.

Likewise here I am not satisfied that his difficulties by travelling on a Bangladeshi passport and having to obtain visas and a more restrictive visas amount to significant hardship in his case and certainly not to the stage of entitling the grant of Australian citizenship.

The decision under review is affirmed.

_____________________