Needham and Minister for Immigration & Multicultural & Indigenous Affairs - [2003] AATA 276

Administrative

Appeals

Tribunal

DECISION AND REASONS FOR DECISION [2003] AATA 276

ADMINISTRATIVE APPEALS TRIBUNAL Nº V2002/932

GENERAL ADMINISTRATIVE DIVISION

Re: CARL TERENCE NEEDHAM

Applicant

And:MINISTER FOR IMMIGRATION
AND MULTICULTURAL AND
INDIGENOUS AFFAIRS

Respondent

DECISION

Tribunal: Mr W.G. McLean, Member

Date: 26 March 2003

Place: Melbourne

Decision:The decision under review is set aside and the matter is remitted to the respondent with the direction that the applicant be given a grant of Australian citizenship.

(sgd) W.G. McLean
Member

IMMIGRATION AND CITIZENSHIP ‑ applicant is a British citizen who has resided most of his life in Australia and was transferred by his employer to work in Thailand ‑ whether applicant has been personally involved in activities during the period under consideration that are beneficial to the interests of Australia ‑ whether residency requirements of the Act are satisfied ‑ whether discretion to be favourably exercised to treat periods when applicant was not in Australia as periods when he was present in Australia ‑ decision set aside ‑ grant of citizenship permitted

Australian Citizenship Act 1948 ss13(1), ss13(1A), ss13(4)(b)(i)(C)

Minister for Immigration, Local Government and Ethnic Affairs v Roberts

(1993) 41 FCR 82

Re Abraham and Department of Immigration and Multicultural Affairs (1997) 50 ALD 611

Re Dainty and Minister for Immigration and Ethnic Affairs (1987) 12 ALD 416

Re Tinamisan and Minister for Immigration and Multicultural Affairs (1996) 43 ALD 349

REASONS FOR DECISION

26 March 2003 Mr W.G. McLean, Member

The Tribunal considered an application from Mr Carl Terence Needham (the applicant) for review of a decision of the Minister for Immigration and Multicultural and Indigenous Affairs ("the respondent") made on 25 July 2002. The respondent decided not to approve an application for the grant of Australian Citizenship.
The Tribunal received into evidence the documents lodged pursuant to s.37 of the Administrative Appeals Tribunal Act 1975 and also other documents provided by the applicant (Exhibit A1).
The applicant was self‑represented. The respondent was represented by Ms J. Greaves, solicitor with Blake Dawson Waldron.
The applicant provided the Tribunal with the following written submission:
The decision to deny me citizenship is not correct for the following reasons.
The company I work with Intrepid travel and I do clearly engage in activities that provide benefit to Australia in a social, cultural and economic way and are recognised by prominent people in many fields.
Intrepid travels core philosophy is to promote cultural understanding to all our travellers and to promote mutual respect between all cultures. One of my primary roles is to educate our travellers and local Thai and Lao operators in the cultural differences and the need to understand and accept these differences. This has been acknowledged by the awarding of awards from the Tourism Authority of Thailand
We have travellers from all over the world travelling together with the majority being Australian. People from all social economical backgrounds travel together. People are able to create friendships thus providing benefit to the Australian community by way of greater understanding between all social and
I have assisted Australian NGO ECPAT (End Child Prostitution and Trafficking) in promoting NO Child Sex Tourism policies and have been involved in training local Thai hotel and tourism operators on ECPATs Child Wise educational program. These activities are recognised as creating a "Good Name" for Australian companies and will make it easier in the future for other Australian companies to operate in the countries we work in
I have assisted in the setting up of community based tourism programs and worked with local NGO and government agencies creating cross cultural understanding.
Intrepid travel has won the Friends of Thailand award for its contribution to tourism in Thailand. They have also won the tourism for tomorrow award from British Airways in recognition of the contribution to worldwide responsible tourism
Intrepid travel is a significant exporter for Australia and over the past 5 years has received an AUSTRADE export grant in recognition of our contribution to the Australian economy
In conclusion all of the above clearly demonstrates my absents from Australia as an employee for Intrepid travel has been "beneficial to the interests of Australia". It is quite clear from the number of awards our company has been awarded and the activities we carry out as a company that we are creating and cross cultural understanding which is beneficial to Australia especial so in the present political climate
My work not only enhances Intrepid Travels reputation but Australia's reputation in the region and helps to create a greater understanding of Australia and Australians by our neighbours.
The applicant provided the following personal reference from Juliet Coombe of La Belle Aurore Agency, London, United Kingdom (UK), in support of his application.
…
To whom it may concern,
I have known Carl Needham for over six years and during this time he has assisted me on numerous media related projects in Thailand. These have ranged from political travel programmes for Lonely Planet and Sky television to facilitating unusual press trips ranging from a traditional Thai homestay to going on a rice barge to Ayuthaya in the old capital. These media related travel stories have appeared in various newspapers and magazine around the world. In particular for the Herald Sun and Courier Mail travel sections in Australia, who pride themselves on taking an active involvement in the issues of sustainable tourism and responsible travel. Something Carl is particularly interested in as a Ground manager for intrepid Travel in Thailand, Cambodia and Malaysia.
This extremely challenging position requires not only the management of up to 45 tour leaders in the field at anyone time, but also the setting up of trips and the continual monitoring of their impacts. on local cultures. An area Carl is vigilant about from both an operator and media advisors perspective. He has been a key player in numerous responsible travel pieces that have appeared in the Australian media, because of his excellent language skills and ability to create a cultural bridge.
Recently Carl has helped me in the production of an ECPAT/Child Wise training video in Thailand and Cambodia, which has been all about producing a tool for the travel industry so they know how to deal with the delicate issue of Child prostitution. A programme that looks for solutions to the increasing numbers of children being forced into this illegal and tragic trade.
Yours faithfully
[sgd Juliet Coombe]
Juliet Coombe
The applicant also provided the Tribunal with the following letter from his employer Intrepid Travel Pty Ltd (Intrepid) dated 21 November 2002, in support of his application.
To Whom It may Concern.
Re: Intrepid Travel, Thailand and Carl Needham.
Intrepid Travel is an Australian company operating small group adventure holidays in Asia. Our trips are designed, operated and led by full time Australian staff who are based in Asia for long periods. The type of trips we operate require that we have our own staff in place in Asia and we have strong Responsible Tourism philosophies that aim to create bridges between different cultures. *These aims are best achieved through use of Australian staff.
*Intrepid have been operating in Thailand since 1989 and in 2001 carried 5,000 travellers to Thailand from 35 countries. In 1996 we were recipient of the Friend of Thailand award for our contribution to Thai Tourism. We are a significant exporter for Australia as indicated by our Austrade Export Market Development Grant that we have been recipient of for the past 5 years. (Austrade contact details can be provided if required) Intrepid also received a Governers Export Award in °1998. (State winner and Australian finalist.)
Carl Needham was employed by Intrepid travel in Melbourne in April 1997. We sent Carl to Thailand as a part of his employment to lead trips on a full time basis for Intrepid. In 1999 Carl became our Ground manager in Thailand, which required that he remain based in Bangkok - where he will remain for the foreseeable future. I understand that Carl's employment has compromised his ability to gain Australian Citizenship ‑ an unintended consequence for which we would very much appreciate a solution. This is particularly the case as we may require Carl to return to our Australian Head Office at some stage due to his particular skills that have been acquired from being our Ground Manager in Thailand for many years. A lack of citizenship would constrain his ability to return to Australia to continue his employment ‑ and ironic situation when his employment was the issue that led to this situation.
We would very much appreciate any assistance in resolving this issue.
Should you require any further information about Carl, his employment, or Intrepid travel, please do not hesitate to contact me.
Yours sincerely,
[sgd] Darrell Wade
Chief Executive Officer
Intrepid Travel Pty Ltd
The applicant was born in Manchester, UK, on 3 November 1966 and is a British citizen. He migrated to Australia with his mother, father, a sister and a brother and first arrived in Australia from the UK on 4 July 1970. He was then only 3 years of age. He said that his parents and his brother and sister are now Australian citizens.
The applicant attended school in Western Australia and completed his secondary education in year 10 at North Lakes Senior High School where he received an achievement certificate (T7). Mr Needham subsequently completed a TAFE foreign language course. The applicant owns a property situated at 6 Regan Street, Coolbelup, Western Australia, which is mortgaged to United Credit Union (T9).
The applicant resided in Australia continuously from 1970 until 1999, excepting for an occasional short trip overseas. In April 1997 he was employed in Melbourne by Intrepid and in April 1997 Intrepid transferred him from Melbourne to work in its Thailand office. In 1999 Mr Needham was promoted by Intrepid to the position of Ground Manager in Thailand. He said that he is very happy working in Bangkok at the present time and expects to be employed in Thailand for the next few years due, in some degree, to his foreign language skills. However, the applicant expects to be eventually relocated by Intrepid from Thailand back to Intrepid's Melbourne head office. Mr Needham desires to live in Australia on a permanent basis, following his relocation back to Australia by Intrepid.

Mr Needham has an Australian Resident Return (subclass 155) Visa which, he said, expires in approximately two and one half years from the date of the hearing. He is concerned that should his visa not be renewed on expiry, he would not be able to return to Australia and resume his life as it was prior to his work transfer to Thailand.
The following letter dated 29 August 2001 was written by the Australian Embassy Immigration Section, Bangkok, Thailand as a record of interview and the Embassy's recommendation concerning Mr Needham's application for grant of Australian citizenship:
APPLICATION FOR GRANT OF AUSTRALIAN CITIZENSHIP
APPLICANT
Name:  Needham, Carl Terrence
Date of Birth:             3 November 1966
Nationality:                British citizen
Marital status: Single
INTERVIEW
Mr Needham migrated to Australia from the UK with his parents and siblings when he was 3 years old. His parents, siblings and grandparents all live in Australia. He lived in Australia continuously until he was 25 years of age. He has travelled considerably since then. According to Movement Check applicant has been travelling at least since 1992 on a Resident Return (subclass 155) visa.
Applicant owns property in Western Australia. He is currently employed by Intrepid Travel Pty Ltd of Victoria, Australia (an Australian registered company) as the Thailand Ground Manager. His work requires him be based in South East Asia on a full time basis and travel to Australia as required. Applicant's wages are paid into an Australian Bank in Australia.
Applicant states that it is his long term intention to reside in Australia but work commitments preclude him from doing so at present.
RECOMMENDATION
Mr Needham has established a prior primary identification with Australia. He states that he intends to continue to live in Australia and can show that he has commitments here. He owns a house and has family members established in the country. He is also currently engaged in activities that could be considered as being beneficial to the interests of Australia. It is recommended that consideration be given to him being granted an Australian citizenship on the basis that he satisfies s.13 Australian Citizenship Act 1948.
[sgd] Wilson Johnson
Senior Migration Officer
Bangkok

The following legislation is provided by the Australian Citizenship Act 1948 (the Act):
13(1)    Subject to this section, 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 present 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 2 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 2 years during the period of 5 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.
(1A)     The Minister shall not grant a certificate of Australian citizenship to a person under subsection (1) at a time when the person is not present in Australia unless:
(a)       the person is a permanent resident; and
(b)the Minister considers that the person is engaged in activities outside Australia that are beneficial to the interests of Australia.
(4)       For the purposes of the application of subsection (1) in relation to an applicant for the grant of a certificate of Australian citizenship:
(a)the Minister shall not take into account, as a period during which the applicant has been present in Australia as a permanent resident, any period during which the applicant has been confined in a prison or has been confined in a psychiatric institution by order of a court made in connection with criminal proceedings against the person; and
(b)       subject to paragraph (a), the Minister may, in the Minister’s discretion:
(i)        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;
(ii)treat a period ending before the period of 5 years referred to in paragraph (1)(e), being a period during which the applicant was present in Australia as a permanent resident, as a period within that period of 5 years;
(iv)if the Minister considers that the applicant would suffer significant hardship or disadvantage if a certificate of Australian citizenship were not granted to the applicant—treat a period during which the applicant was present in Australia otherwise than as a prohibited immigrant, as a prohibited non-citizen, as an illegal entrant, as an unlawful non-citizen, or in contravention of a law of a prescribed Territory, as a period during which the applicant was present in Australia as a permanent resident; or
(v)if the Minister considers that an applicant who is a permanent resident was, by reason of an administrative error, not a permanent resident during a period during which the person was present in Australia—treat the period as a period during which the applicant was present in Australia as a permanent resident.
The applicant does not dispute the respondent's contention that in the 2 years prior to lodgement of his application for grant of Australian citizenship on 4 July 2001 he spent a total of only 61 days in Australia. Nor does the applicant dispute the respondent's contention that in the 5 years prior to his application he spent a total of only 388 days in Australia.
Also, the applicant does not dispute the respondent's resultant calculations and findings of fact that:
(a)he does not satisfy subsection 13(1)(d) of the Act because he falls short of the statutory requirement by 304 days; and
(b)he does not satisfy subsection 13(1)(e) of the Act because he falls short of the statutory requirement by 342 days.
Subsection 13(1A) of the Act provides that the respondent shall not grant a certificate of Australian citizenship to a person under subsection 13(1) of the Act at a time when the person is not present in Australia unless:

13(1A) …
(a) the person is a permanent resident; and
(b)the Minister considers that the person is engaged in activities outside Australia that are beneficial to the interests of Australia.

Subsection 13(4)(b)(i)(C) of the Act provides that for the purposes of subsection 13(1), in relation to an applicant for the grant of a certificate of Australian citizenship, the respondent may, at the respondent's discretion, treat any period during which the applicant was engaged in activities that the respondent considers beneficial to the interests of Australia, as a period during which the applicant was present in Australia as a permanent resident. In this case the applicant relies upon his contention that during his absence from Australia in Thailand his employment with Intrepid and his personal work in Thailand and Laos should be considered as being beneficial to the interests of Australia, for the reasons discussed by him in his above written submission. He contends that Intrepid is a significant exporter for Australia and over the past five years has received an Austrade export grant in recognition of its contribution to the Australian economy. He also indicates that he has assisted Australian NGO ECPAT (End Child Prostitution and Trafficking) in promoting No Child Sex Tourism policies and has been involved in training local Thai hotel and tourism operators on ECPAT's Child Wise educational programme. He says that these activities are recognised in Thailand as creating a "good name" for Australian companies and will make it easier in the future for other Australian companies to operate in the countries in which he has worked. Mr Needham has assisted in setting up community based tourism programmes and has worked with local non‑government organisations and local government agencies creating cross cultural understanding.
As may be seen from the above personal reference from Ms Coombe of La Belle Aurore Media Agency in London, the applicant is highly regarded for the assistance he has given to numerous media related projects in Thailand involved in issues of sustainable tourism and responsible travel. Ms Coombe says that Mr Needham has been a "key player" in numerous responsible travel pieces that have appeared in the Australian media, because of his excellent language skills and ability to create a cultural bridge. He has helped Ms Coombe in the production of an ECPAY/Child Wise training video in Thailand and Cambodia, which is about producing a tool for the travel industry so that it knows how to deal with the delicate issue of child prostitution and "looks for solutions to the increasing numbers of children being forced into this illegal and tragic trade".

At the time of the application for grant of Australian citizenship by the applicant, certain guidelines were in existence indicating the way in which the Minister may exercise the discretion provided to him pursuant to subsection 13(4)(b)(i)(C) of the Act. They were as follows:
Residence discretion: Residence outside Australia (s 13(4)(b)(i))
4.3.17Periods during which the applicant was a permanent resident and was outside Australia engaged in activities beneficial to the interests of Australia may be counted towards the residence requirements. This discretion applies to both residence requirements (ie, both "2 years in the last 5" and "1 year in the last 2");
4.3.18The legislation is interpreted as requiring the following:
·   the applicant must have been a permanent resident (see 1.4) during any of the periods counted;
·   the periods spent outside Australia to be counted must be:
-within the last 5 years for the 2 years in the last 5 years requirements; and
-within the last 2 years for the 1 year in the last 2 years requirement;
·   the applicant must have been personally engaged in activities overseas beneficial to the interests of Australia, not just, for example, the company or organisation for which the applicant worked;
·   the applicant must have been engaged in a series of activities, not just a one‑off transaction;
·   the activities must also be during the relevant period/s under consideration;
·   the activities must have been "beneficial to the interests of Australia" during the relevant period/s. It is not intended that the provision apply where there are no current benefits irrespective of whether benefits may accrue in the future.
In the reasons for decision in the matter of Re Abraham and Department of Immigration and Multicultural Affairs (1997) 50 ALD 611, Deputy President McMahon said:
…
21. It will be seen that the terms of both sets of guidelines bear little resemblance to the words of the statute in paragraph 13(4)(b)(i). This was pointed out in Re Lo and Department of Immigration & Ethnic Affairs (1993) 32 ALD 235, Re Chai (1994) 36 ALD 751 and in a number of other cases.
22. The guidelines purport to add requirements additional to those of the statute. All that an applicant need show in order to enliven the discretion, is that he was engaged in activities beneficial to the interests of Australia. In deciding whether the discretion will then be exercised benignly, it seems to me that it is not open to the Minister to tack on further preconditions. Guidelines indicating the way in which a discretion will be exercised can be particularly useful to departmental officers and to applicants. The discretion to be exercised, however, is created by the terms of the statute and must be exercised consistently with the scope and purpose of the creating legislative phrase. Guidelines are appropriate in this case, where they indicate the way in which the Minister will view periods spent in permitted activities. I do not consider that they are appropriate when they go beyond the terms of the statute and add qualifications which applicants must meet, which have not been considered by Parliament. One of the requirements of both versions of the guidelines, for example, is that the applicant ‘intends to continue to live in Australia.’ There is no such requirement in the legislation. Paragraph 13(1)(j) permits an alternative form of association with this country, rather than residence. The guidelines, furthermore, introduce concepts not found elsewhere. In particular, the requirement that the applicant establish a ‘prior primary identification with Australia’ appears to be quite outside the bounds of the statute.
The respondent noted that the phrase "engaged in activities outside Australia that are beneficial to the interests of Australia" was considered by Einfeld J in Minister for Immigration, Local Government and Ethnic Affairs v Roberts (1993) (1993) 41 FCR 82. His Honour noted that the words "beneficial to the interest of Australia" are not defined in the legislation and must be construed according to the ordinary meaning.
The respondent concedes that the applicant is required to work overseas by a private employer. However, it is contended by the respondent that the applicant’s roles and work in Thailand does not result in an objective benefit to Australia. It is also contended by the respondent that, while the applicant’s employer may have won awards for its contribution to tourism in Thailand, this is not evidence of the applicant’s engagement in activities beneficial to the interests of Australia.
The decisions and reasons for decision in the following matters were also considered by the Tribunal in reaching a decision in respect of this matter Re Dainty and Minister for Immigration and Ethnic Affairs (1987) 12 ALD 416 and Re Tinamisan and Minister for Immigration and Multicultural Affairs (1996) 43 ALD 349. In Dainty, the focus by Justice Davies was, principally upon s.13(4)(b)(iv) of the Act, on the hardship caused to the applicant in not granting citizenship. In the matter of Re Tinamisan, Deputy President Chappel said that there must be a clear nexus between broad public interest and the benefits that accrue to Australia and the specific activities of the person seeking the exercise of Ministerial discretion. He opined that the situation might have been different if Mr Tinamisan had been working for an Australian company or banking organisation rather than a French owned bank.
In this case the evidence is that the applicant’s employer Intrepid is a significant exporter of services for Australia and over the past five years has received an Austrade export grant in recognition of its contribution to the Australian economy. The applicant’s employment as Intrepid's Ground Manager in Thailand has significantly engaged him in Intrepid's activities outside Australia that are beneficial to the interests of Australia. The Tribunal also finds that Mr Needham has been personally involved in Thailand and Laos in a series of activities, during the relevant period under consideration, that will have improved the feelings of goodwill of Thailand's non‑government and government agencies for Australia. In particular, Mr Needham is to be commended for the personal contribution made by him and explanations provided by him, both in Thailand and internationally, regarding the initiative propounded via the Australian NGO ECPAT programme. The Tribunal feels that Mr Needham's personal activities have promoted community good will in Thailand and Laos that are beneficial to the interests of Australia.
The Tribunal notes the written recommendation of the Australian Embassy Immigration Section, Bangkok, Thailand on 29 August 2001, regarding Mr Needham's application for grant of Australian citizenship. Mr Wilson Johnson, senior migration officer, stated that Mr Needham has established a prior primary identification with Australia. He also stated that:
…
He is also currently engaged in activities that could be considered as being beneficial to the interests of Australia. It is recommended that consideration be given to him being granted an Australian citizenship on the basis that he satisfies s13 Australian Citizenship Act 1948.
The only outstanding matter for consideration concerns the applicant’s compliance with subsection 13(1)(j) of the Act. The evidence is that Mr Needham, if granted Australian citizenship, is likely to continue to reside in Australia when he returns and shall maintain a close and continuing association with Australia until then, while he is working in Thailand.
The applicant’s father and mother and his sister and brother are all Australian citizens residing in Western Australia and the applicant owns a property in Western Australia. There is no doubt, based upon the evidence, that it is Intrepid's intention to return the applicant from Thailand to Australia in the future to work in Intrepid's Melbourne head office, and that a lack of Australian citizenship would constrain Mr Needham's ability to return to Australia to continue his employment. The applicant regards Australia as his home and that his current relocation by Intrepid to Thailand as being only a temporary relocation by his employer. The Tribunal finds that the applicant is most likely to reside in Australia when he returns from Thailand and that until he is relocated back by his employer from Thailand to Australia he shall continue to maintain a close and continuing association with Australia pursuant to subsection 13(1)(j) of the Act.
The Tribunal finds that the applicant is deemed to have complied with subsections 13(1)(d) and 13(1)(e) of the Act as a result of the exercise of discretion conferred by subsection 13(4)(b)(i)(C) of the Act.
The decision under review is set aside and the matter is remitted to the respondent with the direction that the applicant is to be given a grant of Australian citizenship.

I certify that the twenty‑eight [28] preceding paragraphs are a true copy of the reasons for the decision herein of

Mr W.G. McLean, Member

(sgd) Catherine Thomas

Clerk

Date of Hearing:  19 February 2003
Date of Decision:  26 March 2003
Advocate for the applicant:          Self‑represented
Solicitor for the respondent:         Ms J. Greaves, Blake Dawson Waldron