Natu and Minister for Immigration, Multicultural and Indigenous Affairs

[2005] AATA 1208

Administrative

Appeals

Tribunal

 

DECISION AND WRITTEN REASONS FOR ORAL DECISION [2005] AATA 1208

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No N2005/887

GENERAL ADMINISTRATIVE  DIVISION		)
Re		Ambarish Natu

Applicant

And Minister for Immigration, Multiculutral and Indigenous Affairs

Respondent

DECISION

Tribunal Ms N Bell, Senior Member

Date of Oral Decision:      21 October 2005

Date of Written Reasons for Oral Decision:  2 December 2005

PlaceSydney

Decision The decision under review is affirmed

.........................................

Ms N Bell
  Senior Member

CITIZENSHIP AND MIGRATION - Application for Australian Citizenship – Significant Hardship or Disadvantage Not Demonstrated – Applicant Does Not Meet Residency Requirements Decision of the Minister Affirmed

Australian Citizenship Act 1948 (Cth)

Re Leung v Minster for Immigration and Multicultural Afafirs (1997) 44 ALD 705

WRITTEN REASONS FOR ORAL DECISION

2 December 2005 Ms N Bell, Senior Member

1. Mr Natu, an Indian Citizen, applied for and was refused Australian citizenship. The sole issue for me to determine in this application is whether the Minister’s discretion as provided for in section 13(4)(b)(iv) of the Australian Citizenship Act 1948 (Cth) (the Act) should be exercised in favour of Mr Natu. It is not in dispute that Mr Natu did not have, at the date of his application for citizenship, the two year permanent residency required under section 13(1)(e) of the Act.

2.      The exercise of the discretion in section 13 (4)(b)(iv) requires significant hardship or disadvantage to be suffered by an applicant as a consequence of the certificate not being granted.  In considering this, it is appropriate to have regard to, and rely upon, the Australian Citizenship Instructions, a document containing the policy guiding the exercise of this discretion.  At paragraph 4.3.33 of the Instructions, the situations are described that would ground exercise of the discretion:

“4.3.33           

As a matter of policy, this discretion would usually only be exercised in one of the following situations of hardship or disadvantage:

The applicant can demonstrate that he/she has been refused employment solely on the grounds that the employment is restricted to Australian citizens and that alternative sources of employment are not reasonably available to him/her;

The applicant would be excluded from travelling internationally because he/she cannot obtain a passport or because he/she is excluded from travelling with immediate Australian family; or

The applicant would not otherwise be eligible to represent Australian in an international forum or be selected to represent Australia in a national representative team/group.

An applicant should be of international standard to satisfy this criterion

If citizenship is a prerequisite to selection for a national team, the applicant should be able to demonstrate that their selection depends solely upon being granted citizenship”

3.      The first two of these situations are relevant to Mr Natu. 

refusal of employment on citizenship grounds

4.      Mr Natu gave evidence of three positions he has applied for which require Australian citizenship.  The representative for the Minister contended there is no evidence that Mr Natu would have obtained any of these positions if he did have citizenship, that two of the positions required security clearance and all required success on the basis of merit.  Mr Natu quite rightly pointed out that this was a matter of speculation, but it is a matter of speculation either way.

5.      Mr Natu provided the tribunal with evidence of discussions he had had with a Dr Prandalene.  I do not consider these discussions to constitute a job offer conditional only on Australian citizenship, and so they take the matter no further.  I note that Mr Natu has been rejected in job applications on other grounds, some on the basis that he is overqualified and some on the basis of merit or particular specialisation or specific skills required.

6.      Mr Natu raised a number of other matters such as over qualification, and under qualification (he has not been awarded a PhD), or other specialised skills that he says mean that alternative sources of employment are not reasonably available to him.  The range and number of positions he has applied for are quite small.  Mr Natu has found that, so far, the best fit with his particular expertise is in the realm of defence, but I am not satisfied on the evidence before me that alternative sources of employment are not reasonably available to him.

exlusion from travelling internationally

7.      In relation to exclusion from international travel, there is no evidence that Mr Natu has been so excluded.  I note that the Instruction requires not only exclusion from international travel, but the requirement is that the person be excluded from international travel because he or she cannot obtain a passport.  Mr Natu’s evidence was of international travel on at least two occasions, since being granted permanent residence.  I accept that these arrangements were difficult and cumbersome.  I cannot be satisfied, however, that they amount to exclusion.

decision

8.      It follows then that the decision under review is affirmed.

I certify that the 8 preceding paragraphs are a true copy of the reasons for the decision herein of Ms N Bell, Senior Member

Signed:         .........[Linda Blue].............................
  Associate

Date of Hearing  21 October 2005
Date of Oral Decision                21 October 2005
Date of Written Reasons          2 December 2005
Solicitor for the Respondent     Clayton Utz Lawyers