Paul and Minister for Immigration and Citizenship

[2008] AATA 851

Administrative Appeals Tribunal

DECISION AND WRITTEN REASONS FOR ORAL DECISION [2008] AATA 851

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No 2008/2274

GENERAL ADMINISTRATIVE  DIVISION		)
Re		GOUTAM PAUL

Applicant

And MINISTER FOR IMMIGRATION AND CITIZENSHIP

Respondent

DECISION

Tribunal   Mrs Josephine Kelly, Senior Member

Date of decision                18 August 2008

Date of written reasons   23 September 2008

Place  Sydney

Decision

The reviewable decision is affirmed.

The Tribunal notes:

1. The undertaking given by the Minister for Immigration and Citizenship (the Respondent) that if Mr Paul re-applies in February 2009, (when he will have satisfied the requirements relating to residence if he does not leave the country in the mean-time), his application will be dealt with expediently (sic).

2. That the Respondent has confirmed that the decision will not take seven months to make because Mr Paul has already satisfied the majority of the criteria contained in s 21 of the Australian Citizenship Act 2007.

3. That, if Mr Paul re-applies within three months of meeting the residency requirements, it is likely that he will not have to pay the application fee, as the Citizenship Regulations allow the Department to waive that fee.  

...................[sgd].......................

Senior Member
  Mrs Josephine Kelly

CATCHWORDS

CITIZENSHIP – Application for – Applicant Bangladeshi citizen – Refugee – Permanent residence period not satisfied – Whether discretion to treat period of residence as permanent should be exercised - Whether applicant would suffer significant hardship or disadvantage – Applicant’s circumstances and evidence considered - Held no hardship or disadvantage - Reviewable decision affirmed

Administrative Appeals Tribunal Act 1975, 43

Australian Citizenship Act 2007, s 21, 22

Australian Citizenship (Transitional and Consequentials) Act 2007, Schedule 3

Migration Legislation Amendment Bill (No 1) (2008)

Australian Citizenship Instructions (2008)

REASONS FOR DECISION

23 September 2008 Mrs Josephine Kelly, Senior Member      

1. On 18 August 2008 I decided to affirm the reviewable decision in this application. The Applicant requested written reasons for the Tribunal’s decision pursuant to s 43(2A) of the Administrative Appeals Tribunal Act 1975, which I now provide.

2.      Mr Goutam Paul wishes to obtain Australian citizenship.  His application was refused because he did not satisfy the residence requirements.  He claims that he will suffer significant disadvantage and hardship such that I should exercise a discretion, which the Minister for Immigration and Citizenship argued is available as a matter of policy, which would allow Mr Paul to satisfy the residence requirement.

THE ISSUE

3.      The issue is will Mr Paul suffer significant hardship or disadvantage such that the discretion should be exercised which would allow Mr Paul to satisfy the residence requirement.

MR PAUL’S CASE

4.      Mr Paul's elderly mother lives in Bangladesh, about 300 kilometres from the capital, Dacca. There is conflicting evidence of her age, however it seem clear that she is between 70 and 80 years of age.  Mr Paul said that birth certificates are not issued in Bangladesh, or at least at the time of his mother's birth.  He says that his mother is in ill health and that he wishes to take her to be treated in India for at least three months.  He has property and financial resources in Bangladesh that he will use.

5.      Mr Paul has refugee status in Australia and has a Convention Travel Document (Titre De Voyage).  However he claims that the Indian and the Nepali governments have been unwilling to issue a visa on the basis of that document.   He says that he was told by an officer at the Indian Consulate in Sydney that he could get a visa within a couple of days if he had an Australian passport.   However, an application made on the basis of a Convention Travel document has to be considered by the relevant government department in Delhi.   He lodged his application with the Indian consulate in July 2007 and has been waiting for a decision ever since.  An application to the Nepal consulate would also have to be sent to Nepal to be decided. 

CONSIDERATION

The Relevant Law

6.      The Australian Citizenship Act 2007 (the 2007 Act) and the Australian Citizenship (Transitional and Consequentials) Act 2007 (the Transitional Act) set out the law which applies in this case because Mr Paul  applied within 3 years of the commencement of the 2007 Act, within the meaning of Item 5B of Schedule 3 of the Transitional Act.  It is relevant to my consideration that Ms Nandogopal, who appeared for the Minister, stated that Mr Paul will satisfy the residency requirement on 27 February 2009.  He obtained permanent residence on 28 February 2007, having arrived in Australia on 22 May 2005.

7.      Ms Nandogopal explained that there is what she referred to as an inconsistency between the Transitional Act and the 2007 Act.  It seems to me that the "inconsistency" is a drafting oversight which failed to incorporate in the Transitional Act the discretion conferred by s 22(6) of the 2007 Act which provides:

Ministerial discretion—person in Australia would suffer significant hardship or disadvantage

(6)  For the purposes of paragraph (1)(c), 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 present in Australia during that period (except as a permanent resident or an unlawful non-citizen); and

(b)  the Minister is satisfied that the person will suffer significant hardship or disadvantage if that period were not treated as one during which the person was present in Australia as a permanent resident.

8.      However, as a matter of policy, the Minister has determined to implement the Transitional Act as if it does include the discretion (see Chapter 5, paragraph 11 of the Australian Citizenship Instructions (ACIs)).  A bill to amend the Transitional Act to overcome this problem has been prepared (see Migration Legislation Amendment Bill (No1) (2008)).  Accordingly, I am asked to consider whether I am satisfied that Mr Paul will suffer significant hardship or disadvantage if the relevant period "were not treated as one during which the person was present in Australia as a permanent resident".

9.      The ACIs provide policy guidance on what would ordinarily constitute significant hardship or disadvantage. Relevantly, Attachment B of the ACIs refers to difficulty of international travel because the person cannot obtain a passport from their country of nationality/citizenship, or are unable to use a passport issued by that country for safety or similar reasons.

Mr Paul’s Evidence

10.     Mr Paul gave the following evidence.  He explained that he is an only son, and has four sisters.  According to Hindu tradition, only a son will inherit property and he is obliged to care for his mother.  Daughters become part of their husband's family, and are not obliged to look after their mother. From time to time since he has been in Australia, he has telephoned one or more of his sisters to ask them to assist their mother.

11.     The evidence discloses that one of his sisters was living with their mother for some of the period since he left Bangladesh.  Mr Paul stated that his sister had since returned to live with her husband and family.

12.     He stated that he had not planned to get Australian citizenship but found that when he applied to bring his mother to Australia, she had to have a medical certificate stating that she was fit to travel, because she is over 60 years or age.  Apparently she was unable to obtain such a certificate.   His plans are to have her treated in India so that she will be able to satisfy the certificate requirement and then he can bring her to Australia.

13.     Mr Paul recounted that his mother had been attacked and tortured in 2006 by some Muslim cadres of the Bangladesh National Party, suffering various injuries.  Mr Paul referred me to copies of local newspaper articles from Bangladesh. Some were written in Bengali, and were interpreted at hearing. He alleged that the articles indicated that, during 2006, his mother was in danger and the victim of politically motivated violence that required her hospitalization. In 2006, Mr Paul was sent advice from the Department of Immigration and Citizenship about humanitarian assistance programs available to his mother if he believed her  life or liberty was in danger.

14.     Mr Paul has been warned against using his Bangladeshi passport. I understand that if he used that passport he would lose his refugee status.

15.     Mr Paul described various medical problems that he thinks his mother has, including pain in the spinal cord, heart problems, high blood pressure from which she may die, and degeneration in the bones and joints, and problems with her eyes. The only medical evidence Mr Paul relied on about the state of his mother's health which suggested what her condition might be was an X-ray report dated 13 February 2006.  The report stated that an X-ray of the right knee joint showed osteoporotic change, the "Impression" was "osteoporosis".  The comment about the X-ray of the lower spine also noted "Impression:  Osteoporosis with loss of lordosis". An X-ray report does not provide information about the clinical signs a patient is experiencing, although I infer that Ms Paul was probably suffering some symptoms which caused her to be referred for X-rays to be carried out.

16.     Although Mr Paul said that he speaks to his mother and sisters by telephone, he seemed to have little knowledge about the actual state of her health and hence the treatment she may need.  Mr Paul argued that the treatment she needs is not available in Bangladesh.   There is insufficient evidence to enable me to determine whether Ms Paul needs any treatment, let alone whether or not the relevant treatment is available in Bangladesh or only available in India. 

17.     Other material about Ms Paul's medical condition had been sent to the Tribunal from Bangladesh, however, when the Ms Nandogopal tendered evidence  from medical practitioners in Bangladesh which raised doubts about the genuineness of that material, Mr Paul decided not to rely on it.  He said that he had asked a friend in Bangladesh to get the evidence but he had not seen it, and did not know what it said.  In short, he disavowed responsibility for it.

18.     Near the end of the hearing Mr Paul also described his own anxiety and worry about his mother's health.  He believes that his mother will live longer and many of her problems abate if he is with her.   

CONCLUSION

19.     I understand that Mr Paul wishes to see his mother and to take care of her.  However, he has been in Australia since 2005, his mother was tortured in 2006, and she is still living in Bangladesh, assisted by one or more of her daughters from time to time.  The evidence of her state of health was unpersuasive.  I take into account  that Mr Paul will satisfy the residence requirements in February 2009.  In my opinion, another few months apart from his mother will not cause Mr Paul to suffer "significant hardship or disadvantage" such that I should exercise the discretion.

DECISION

20.     The reviewable decision to refuse Mr Paul’s application for Australian citizenship is affirmed.

The Tribunal notes:

1. The undertaking given by the Minister for Immigration and Citizenship (the Respondent) that if Mr Paul re-applies in February 2009, (when he will have satisfied the requirements relating to residence if he does not leave the country in the mean-time), his application will be dealt with expediently) (sic).

2. That the Respondent has confirmed that the decision will not take seven months to make because Mr Paul has already satisfied the majority of the criteria contained in s 21 of the Australian Citizenship Act 2007.

3. That, if Mr Paul re-applies within three months of meeting the residency requirements, it is likely that he will not have to pay the application fee, as the Citizenship Regulations allow the Department to waive that fee.

I certify that the 20 preceding paragraphs are a true copy of the reasons for the decision herein of Mrs Josephine Kelly, Senior Member.

Signed: ……..[sgd]….……

Steven Mulipola, Associate

Date of hearing:  13 August 2008

Date of decision:  18 August 2008

Date of written reasons:                 23 September 2008

Representative for the Applicant: Self-represented

Solicitors for the Respondent:      DLA Phillips Fox