Nii-K Plange and Minister for Immigration and Citizenship
[2013] AATA 837
Administrative Appeals Tribunal
ADMINISTRATIVE APPEALS TRIBUNAL )
) No: 2012/4300
General Administrative Division )
Re: Nii-K Plange
Applicant
And: Minister for Immigration and Border Protection
Respondent
DIRECTION
TRIBUNAL: Ms N Bell, Senior Member
DATE: 26 November 2013
PLACE: Sydney
The Tribunal directs the Registrar, pursuant to subsection 43AA(1) of the Administrative Appeals Tribunal Act 1975, to alter the text of the decision in this application as follows:
- The Respondent is the Minister for Immigration and Border Protection not the Minister for Immigration and Citizenship.
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Ms N Bell, Senior Member
[2013] AATA 837
Division GENERAL ADMINISTRATIVE DIVISION File Number
2012/4300
Re
Nii-K Plange
APPLICANT
And
Minister for Immigration and Citizenship
RESPONDENT
Decision
Tribunal Ms N Bell, Senior Member
Date 25 November 2013 Place Sydney The Tribunal sets aside the decision under review and decides instead that Dr Plange, having had a close and continuing association with Australia as a permanent resident during the four years prior to his application for citizenship and thereafter and continuing, should be considered as having been present in Australia during that period in accordance with the discretion provided for in section 22(9) of the Australian Citizenship Act 2007.
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Ms N Bell, Senior Member
Catchwords
IMMIGRATION AND CITIZENSHIP – permanent resident – application for citizenship – applicant married to Australian citizen – Applicant aged over 60 years of age – applicant does not meet residence requirements – exercise of discretion – application of Australian Citizenship Instructions – whether applicant has a close and continuing association with Australia – decision under review set aside
Legislation
Australian Citizenship Act 2007 (Cth), ss 21,21(4), 22(1), 22(2), 22(9)
Cases
Singh v Minister for Immigration and Citizenship [2011] FCA 685
Secondary Materials
Australian Citizenship Instructions, Chapter 5
REASONS FOR DECISION
Ms N Bell, Senior Member
Nii-K Plange is a Ghanaian born citizen of Ghana. He also holds Canadian citizenship. He first arrived in Australia on 6 July 1990 on a temporary visa. He became a permanent resident on 9 September 2005.
Dr Plange lodged an application for Australian Citizenship by conferral on 12 September 2011. From January 2009 he worked as an Advisor to AusAID, based in Port Moresby, Papua New Guinea, providing guidance and technical assistance on the PNG-Australia HIV and AIDS Program. His current work with AusAID is with the Pacific HIV Response Fund. Mr Plange is an expert in the field of HIV and AIDS policy. He previously worked with the United Nations in the same field in both PNG and Geneva.
Dr Plange is married to a Fijian born Australian citizen with whom he has an Australian born citizen child.
The difficulty for Mr Plange, in his application for citizenship, is that over the last four years he has been present in Australia for only 131 days. This means that he does not satisfy the general residence requirement in the Australian Citizenship Act 2007 (section 22(1)). I must therefore consider whether the discretion provided for in section 22(9) of the Act should be exercised in his favour.
issues
Section 22(9) of the Act provides for a discretion in some circumstances to treat a period as one in which a person was present in Australia as a permanent resident:
(9) If the person is the spouse, de facto partner or surviving spouse or de facto partner of an Australian citizen at the time the person made the application, the Minister may treat a period as one in which the person was present in Australia as a permanent resident if:
(a)the person was a spouse or de facto partner of that Australian citizen during that period; and
(b)the person was not present in Australia during that period; and
(c)the person was a permanent resident during that period; and
(d)the Minister is satisfied that the person had a close and continuing association with Australia during that period.
There is no dispute that Ms Salote Bogitini Plange is an Australian citizen, that she and Dr Plange married in January 1998 and that he became a permanent resident in 2005. Therefore the only issues are whether Dr Plange had a close and continuing connection with Australia during the four years before his application for citizenship, and, if so, whether the discretion in section 22(9) should be exercised.
Did Dr PLANGE Have a Close and Continuing association with Australia?
The Australian Citizenship Instructions contain the following introduction:
The role of the ACIs is to support the Australian Citizenship Act 2007. The instructions provide guidance on policy in relation to the interpretation of, and the exercise of powers under, the Act and the Regulations. Decision makers should be mindful that policy must not be applied inflexibly. Policy cannot constrain the exercise of delegated powers under the Act.
In relation to the discretion contained in section 22(9) of the Act, the Instructions say:
Policy is that this discretion would usually only be exercised if the applicant was overseas with their Australian citizen spouse or de facto partner.
In all cases, applicants must provide evidence that they maintained a close and continuing association with Australia while overseas. Factors that may demonstrate this close and continuing association with Australia include but are not limited to:
· Australian citizen children
· long term relationship with Australian citizen spouse or de facto partner
· extended family in Australia
· regular return visits to Australia
· regular periods of residence in Australia
· intention to reside in Australia
· employment in Australia where the person has been on leave to accompany their spouse or partner overseas
· ownership of property in Australia
· evidence of income tax payment paid in Australia over the past four year and
· evidence of active participation in Australian community based activities or organisations.
In assessing whether a person has a close and continuing association with Australia for the purposes of 22(9)(d),it is policy that more weight should be given if the person has been lawfully and physically present in Australia for at least 365 days in the 4 years immediately before making an application for Australian citizenship (including at least 90 days as a permanent resident). Less weight should be given if they have not been present in Australian for at least this period.
Dr Plange and his Australian citizen wife have been married for 14 years. Together they have an Australian born child, also a citizen of Australia.
Dr Plange’s nephew, a physician, lives in Ballarat with his wife and three children. He is close to this nephew and he is Dr Plange’s physician. Mrs Plange’s parents live in Australia as does her brother. Dr Plange said he has contact with his wife’s family whenever he is in Australia and celebrates Christmas with them.
Dr Plange has entered Australia many times. The duration of each of his stays has varied but the longest stays have been around the Easter and Christmas/New Year periods.
The Minister provided information on the time spent by Dr Plange in Australia in the relevant period, indicating that he was present for 131 days.
Dr Plange described life in PNG as very rough. He said the high crime rate necessitates living in a compound with guards – particularly in Port Moresby. This description is supported by the Country Information sourced by the Minister’s representative from Amnesty International and elsewhere. That information notes that violence against women and girls is particularly high with “incidents occurring at every level of society – in the home, community and institutional settings”. Similarly, a download from the “Smartraveller” site of the Australian Department of Foreign Affairs and Trade warns Australian travellers to exercise a high degree of caution in PNG because of the high levels of serious crime, particularly in Port Moresby and in parts of the Highland provinces. Particular mention is made of car-jacking and sexual assault including gang rape, with foreigners having been targeted.
Dr Plange said he did not wish to have his wife and daughter live in PNG for these reasons. He, on the other hand, must remain there for the duration of the program he works on. He said he has only been able to get away during statutory holidays and for longer periods around Christmas and New Year. He said that over the years he has made some trips to Fiji, has visited Ghana twice for funeral ceremonies following the death of his mother and to Geneva for the wedding of his older daughter, but the vast bulk of his travel from, first, Geneva, and then PNG has been to Australia.
He said his wife has developed a second hand clothing business which she operates between Fiji and Australia, buying items in Australia which she then sells in a shop in Fiji. Their daughter resides with his wife. When possible, the whole family reunites in Australia and when Dr Plange’s wife cannot get away she sends their daughter to Australia to be with Dr Plange.
The movement records for Mrs Plange for the relevant period, provided by the Minister, show that she spent 161 days in Australia.
Dr Plange does not own real estate in Australia but he has for 14 years, with his wife, held a lease on a unit in Belmore that is kept for the sole use of the family and is where they stay when they are in Australia. He holds bank accounts with the ANZ bank together with an investment account in the sum of approximately $50,000. He also has an Esanda investment facility in the sum of approximately $30,000. His daughter also has a Commonwealth Bank account.
Dr Plange also holds Australian private health insurance. His payment from AusAID is not taxed, given that he is a non-citizen..
Dr Plange described the pattern of life for those who work at a high level in international aid. He said it is commonplace to spend the bulk of one’s life away from spouse and children with only periodic reunions. He remarked on the contradiction involved in requiring that he be present in Australia for the amount of time required by the Act and the competing demands of his work with AusAID, an Australian government agency employer. He noted that these circumstances are beyond his control, given the nature of his qualifications and his field of work.
Dr Plange said he intends to reside in Australia in a more conventional way in the future, although he considers that he resides here now because that is where his home is. He said he plans to set up an office in Australia and work with others on Pacific issues from an Australian base, tendering for work in his field in the Pacific area. He said that eventually he wants to look at the impact of HIV and AIDS on the Pacific Islander community in Australia. He said he plans to work through the Seventh Day Adventist Church and its networks to design and find funding for the project. He said he will continue to take consultancies in his field in the Pacific such as the one he has recently undertaken and noted that, as a consultant, one works away for short bursts of time, as distinct from an Adviser where one is required to remain on site continuously. He said he expects to spend more time in Australia as he develops his central project.
Dr Plange also said he would like to become involved in politics in Australia.
The Minister contended that because Dr Plange was not overseas with his Australian citizen spouse then the discretion should not be exercised. The Instructions provide that the discretion that may be exercised should be exercised “mindful that policy must not be applied inflexibly. Policy cannot constrain the exercise of delegated powers under the Act.” The Federal Court in Singh v Minister for Immigration and Citizenship [2011] FCA 685, referring to the Instructions, said:
policy considerations referred to in the 2005 explanatory memorandum were not intended to govern the exercise of the discretion but to set out circumstances when applications would “usually be approved”, thereby leaving the appropriate decision to the decision maker. The Instructions are not intended to dictate how the discretion under s 24(2) is exercised (Budilay v Minister for Immigration and Citizenship [2011] FCA 508 at paragraph [11], per Buchanan J)
The fact that Dr Plange’s wife was not in PNG with him is not a bar to the exercise of the discretion.
The Minister also submitted that “it cannot be established that the conditions in Papua New Guinea were the reason that Mrs Plange did not reside with Dr Plange.” Much was made of Mrs Plange’s business in Fiji and it was submitted that it is “likely that Mrs Plange’s business commitments would have precluded her from residing with Dr Plange in any case”. No evidence before me supports that conclusion. Rather, the clear evidence is of conditions in PNG that would make settlement of Dr Plange’s wife and daughter there extraordinarily difficult and dangerous. That Mrs Plange found constructive and profitable activity elsewhere in these circumstances should not, to my mind, weigh against the exercise of the discretion.
Dr and Mrs Plange spent the vast majority of their time in separate countries during the relevant period. Must this mean that those who undertake international aid work on behalf of Australia are precluded from citizenship? I see nothing in the provisions of the Act or in the Instructions that would require that outcome.
The Minister also submitted that the following passage from the AusAID Adviser Remuneration Framework Version 3 – February 2012 definition of “Advisers” indicates that Adviser positions are classified as “international” where “the required expertise cannot be sourced locally, either because the local market is not mature enough or the required skills being transferred to the beneficiary country can only be obtained from abroad”. The Minister sought to infer that this fell short of supporting an association with Australia. Unfortunately, the Minister did not refer me to the sentence that immediately follows on page four of that document:
It is important to note that this classification does NOT relate to the nationality of the adviser.
The Minister also submitted that I should, in accordance with the Instructions, give less weight to Dr Plange’s evidence of a close and continuing association with Australia because he spent only 131 days in Australia in the relevant period. Again, this is no bar to qualification for citizenship. I should have regard to this length of presence in Australia and its relative shortness. However, I consider I should also have regard to the reasons for this absence, that is, Dr Plange’s employment by AusAID, undertaking Australian international aid work at a remote site.
I consider that the combination of Dr Plange’s long marriage to an Australian citizen, his Australian born and citizen child, the peculiar demands of the work he undertakes on behalf of AusAID, the fact of his continuing to undertake work on behalf of an Australian international aid agency, the extraordinarily difficult conditions in the site of that work, his long established abode in Australia, his banking and financial investments in Australia, the frequency and regularity of his returns to Australia, his well thought out and ambitious plans for a future based in Australia and the magnitude of the contribution he hopes to make to Australian society, all point to a continuing association with Australia of considerable depth and purpose.
Should the Discretion be Exercised?
Having reached the conclusion that Dr Plange had a close and continuing association with Australia throughout the relevant period, I see no reason not to exercise the discretion in his favour.
Decision
The Tribunal sets aside the decision under review and decides instead that Dr Plange, having had a close and continuing association with Australia as a permanent resident during the four years prior to his application for citizenship and thereafter and continuing, should be considered as having been present in Australia during that period in accordance with the discretion provided for in section 22(9) of the Australian Citizenship Act 2007.
I certify that the preceding 30 (thirty) paragraphs are a true copy of the reasons for the decision herein of Ms N Bell, Senior Member. .......[Sgd].................................................................
Associate
Dated 25 November 2013
Date of hearing 30 September 2013 Date final submissions received 28 October 2013 Applicant In person Solicitors for the Respondent S Kikkert, Enforcement & Citizenship Litigation Section, Department of Immigration and Border Protection
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