Perego and Minister for Immigration and Citizenship

[2008] AATA 119

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2008] AATA 119

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No 2007/2293

GENERAL ADMINISTRATIVE  DIVISION		)
Re		ANDREA PEREGO

Applicant

And MINISTER FOR IMMIGRATION AND CITIZENSHIP

Respondent

DECISION

Tribunal Mr S E Frost, Member

Date15 February 2008

PlaceSydney

Decision

The Tribunal decides as follows:

(i) Mr Perego satisfies all the criteria in subsection 13(1) of the Australian Citizenship Act 1948.

           (ii)       The matter is adjourned to 15 August 2008, to be listed for   resumed hearing before me on that date.

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

Mr S E Frost
  Member

CATCHWORDS

CITIZENSHIP – decision under review made before repeal of Australian Citizenship Act 1948 – whether old or new Act applies to the review of the original decision – relevant date for satisfaction of the criteria for the grant of a certificate of Australian citizenship – applicant satisfies criteria in subsection 13(1) of the Australian Citizenship Act 1948 – applicant not present in Australia – close and continuing association with Australia – activities that are beneficial to the interests of Australia – applicant’s recent activities characterised as being remote, indirect and speculative so far as the interests of Australia are concerned – certificate of citizenship cannot be granted to the applicant in the current circumstances while the applicant is not present in Australia – matter adjourned

Australian Citizenship Act 1948 – section 13

Australian Citizenship (Transitionals and Consequentials) Act 2007 – Schedule 3, Part 1, item 10

Administrative Appeals Tribunal Act 1975 – section 43

Special Broadcasting Service Act 1991 – section 6

Re Singh and Minister for Immigration and Citizenship [2007] AATA 2023

Re McCarthy and Minister for Immigration, Local Government and Ethnic Affairs [1993] AATA 166

REASONS FOR DECISION

15 February 2008 Mr S E Frost, Member        

Introduction

1.      Andrea Perego applied for a certificate of Australian citizenship on 11 December 2003.  Shortly after lodging his application and attending a departmental interview, he unexpectedly left Australia to care for his elderly mother in Italy.  When the application was finally determined Mr Perego was still in Italy caring for his mother. Because he was out of the country, he could be granted a citizenship certificate only if the Minister considered that Mr Perego was “engaged in activities outside Australia that are beneficial to the interests of Australia”.  It is not clear what, if any, consideration was given to this requirement, there being no written record of the decision of the Minister’s delegate available to the Tribunal.  The Minister’s delegate refused the application on 25 January 2005.  When Mr Perego became aware of the refusal (in May 2007), he applied to this Tribunal for review of that decision.

2.      The refusal decision was made under the Australian Citizenship Act 1948 (“the 1948 Act”) and, although that Act has now been repealed, the review in this Tribunal is to be undertaken under that Act, and not under the new Australian Citizenship Act 2007. This is mandated by item 10 in Part 1 of Schedule 3 to the Australian Citizenship (Transitionals and Consequentials) Act 2007.

The relevant legislation

3.      The relevant provisions are in section 13 of the 1948 Act. 

4.      The primary criteria for the grant of a certificate of Australian citizenship are in subsection (1), which provided as follows:

(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.

5.      In addition to those nine primary criteria, there is the following limitation placed on the Minister by subsection (1A):

(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.

6. At the commencement of the hearing, Mr O’Brien, for the Minister, accepted that Mr Perego satisfied all the criteria in paragraphs (a) to (h) of subsection 13(1), but not the one in paragraph (j). He also contended that, because Mr Perego’s application was determined at a time when Mr Perego was not present in Australia, the Minister could not grant a certificate of citizenship unless the Minister considered that Mr Perego was “engaged in activities outside Australia that are beneficial to the interests of Australia” (paragraph 13(1A)(b)). The Minister considered that not to be the case – both at the time when the application was determined, and on a continuing basis up to the date of the hearing.

Issues

7.      I have three issues to determine.  They are:

1)    Am I limited to considering whether Mr Perego satisfied the criteria in section 13 at the date of the original decision, or should I consider whether he satisfies the criteria at the date of my decision? 

2)    Did he, or does he, satisfy the criteria?

3)    If I find that he did, or does, satisfy the criteria, what is the appropriate decision for me to make?

Issue No. 1 – What is the relevant date for satisfaction of the criteria?

8.      On behalf of the Minister, it was noted that this very question had recently been considered by the Tribunal in Re Singh and Minister for Immigration and Citizenship [2007] AATA 2023.

9.      In that case Deputy President Forgie, after noting the distinction that has been drawn in a number of cases between “cancellation” decisions and “entitlement” decisions, said at [33]:

A decision under s 13 is a decision that falls into the class of decision conferring a right, privilege, benefit or entitlement of some sort.  Section 13, under which the decision was made, does not link the person’s meeting the criteria it sets out in s 13(1) to any particular time period.  It does not, for example, provide that the person must meet them at the time of making an application for a grant of Australian citizenship.  Had it been an essential step, Parliament could have provided for it just as it provided in s 13(1), in effect, that the Minister’s power to make a decision was only enlivened once an applicant had made an application in accordance with an approved form.  All that s 13(1) requires is that the person satisfies the Minister that he or she meets the criteria.  Applying the principles to which I have referred, that means that the Tribunal should, on any review, consider whether Australian citizenship should be granted not only at the date of the application under s 13 but also up to the time of its decision.

10.     I agree, with respect, with Deputy President Forgie’s analysis.  It follows that I am not limited to considering whether Mr Perego satisfied the criteria at the time of the original decision.  I need to consider whether he satisfies them on the date on which I make my decision.

Issue No. 2 – Does Mr Perego satisfy the relevant criteria?

11. The Minister has no issue in relation to the criteria in paragraphs (a) to (h) of subsection 13(1), and I find that Mr Perego satisfies each of these requirements.

12.     As to paragraph (j), Mr Perego gave the following evidence by telephone from Italy (Transcript pages 12, 18, 19, 20):

[Page 12]

… I was living in Australia permanently at the time [when I applied for citizenship] and I was not expecting to come back so soon to Italy which was February 2004, because of my mother, and it was absolutely the right time for me to apply because I was there expecting to stay there frankly forever and then this problem happened with my mother.  I mean I’m still expecting to come back to Sydney and live there forever.  …

[Pages 18-19]

… I have chosen Australia as my home, because that’s home for me, as much as Italy is home for me, because I have come and I have chosen to live in Australia.  I have a partner in Australia, I have a job in Australia, and I hope I’m going to have another job in Australia, maybe the same as I used to have.  Having the citizenship, becoming an Australian, would make things that much easier for me because I know that I’m going – I’m coming backwards and forwards from Australia, between Australia and Italy in my future.  At least as long as my parents are in this state, I cannot decide to live here or there, I cannot come to Australia and say, okay, I’m going to live here forever without going back to Italy.  But Australia is my home now and has been home for me for the last eleven years, because I came to Australia in ’96 for the first time.  And I knew it was going to become my second home, or my first home, because I have a – my second family is there. …

[Page 19]

…I have chosen Australia as my home, as you know.  And so I think it’s my life to complete this, I genuinely in my mind, [can] become actually a citizen of Australia as I am a citizen of Italy, because I do feel like I’m a citizen of the two countries.  And so it would make my life just much easier knowing that I’m an Australian citizen, and knowing that I can come and go from Australia at any time when I want, because I feel like I’m Australian by now. …

[Page 20]

… I’ve always felt welcomed by Australia.  And I had a great time there, and I hope I’m going to have a great time there again in my future.  I do want to live there because it’s a country where they gave me so much and I feel grateful to Australia as I’m grateful to Italy, of course, because I’m Italian, I was born in Italy, and my first family is here, but second family is there and it’s my second home.  I do love Australian lifestyle, I do love the freedom and the simplicity of life of Australia and the way people live and the way they relate [to] each other, and the way usually things go, that’s why is sounds so – I mean, I’m grateful of the country and everybody. …

13.     This evidence was uncontradicted.

14.     Mr Perego has a close and continuing association with Australia through his affinity with the country, which is evident from these extracts from his oral evidence; through his identification of Australia as his home, or his second home; through his longstanding and continuing relationship with his partner; through his relationship with his previous employer, the Special Broadcasting Service (SBS), a relationship which has continued intermittently during his period of absence since early 2004; and through his acceptance of and empathy with the Australian lifestyle.

15. I find that Mr Perego currently satisfies all the criteria in subsection 13(1) of the 1948 Act. I also find, in the absence of any significant changes in his circumstances, that he has continuously satisfied all the criteria from the time he made his application for citizenship in December 2003 up to now.

Issue No. 3 – What is the appropriate decision for the Tribunal to make?

16. It has been observed on many occasions that when conducting the review of a decision, the Tribunal stands in the shoes of the original decision-maker. This characterisation is sourced in subsection 43(1) of the Administrative Appeals Tribunal Act 1975 (“the AAT Act”) which states in part:

For the purpose of reviewing a decision, the Tribunal may exercise all the powers and discretions that are conferred by any relevant enactment on the person who made the decision …

17. The corollary of the empowerment provision in subsection 43(1) of the AAT Act is that all limitations that are placed by an enactment on an original decision-maker are also placed on the Tribunal. This means that, in terms of subsection 13(1A) of the 1948 Act, I am prevented, just as the Minister is prevented, from granting a certificate of citizenship to a person “at a time when the person is not present in Australia” unless both paragraphs 13(1A)(a) and (b) are satisfied.

18.     I now turn to the second of those provisions, noting that Mr Perego has at all times satisfied paragraph 13(1A)(a), the “permanent resident” requirement.

19.     When Mr Perego first went to Italy to look after his mother, he was on leave from SBS – first on a paid basis for about six months, and then on unpaid leave until he finally resigned in the first half of 2005.  During the early part of that time he was involved on a reasonably regular basis in recording audio segments which he sent back to Australia for broadcast on SBS radio programs.  They were segments that dealt with cultural events in Italy, and on one occasion he sent back an interview with a politician in Italy.  They were evidently considered by SBS to be of interest to its audience in Australia. 

20. Given that the principal function of SBS – described in section 6 of the Special Broadcasting Service Act 1991 as its “Charter” – is “to provide multilingual and multicultural radio and television services that inform, educate and entertain all Australians, and, in doing so, reflect Australia’s multicultural society”, one could conclude on a broad view of the words in paragraph 13(1A)(b) of the 1948 Act that Mr Perego was at that time “engaged in activities outside Australia that are beneficial to the interests of Australia”.

21.     On that basis, it could also be concluded that, had the Minister’s delegate sought and considered information concerning Mr Perego’s activities in Italy, the decision in January 2005, in relation to the grant of a certificate of Australian citizenship, might easily have gone in Mr Perego’s favour.

22.     However, the activities that Mr Perego has undertaken in Italy since that time have not been as regular, nor as focused, nor so immediately attuned to “the interests of Australia”, as the activities he undertook in his first nine to twelve months in Italy after his return there in February 2004. 

23.     He still considers that there are opportunities to showcase Australia in Italy, such as through a festival of Australian cinema.  He also considers that each of the two countries has a genuine interest in the culture of the other.  This has created in him a desire, for example, to stage an exhibition of Australian contemporary art in Italy – and for maximum effect, he would do that in one of Italy’s “very old”, or “ancient”, buildings.

24.     Despite his very articulate description of the opportunities, and his obvious passion for bringing the two cultures together, I find that Mr Perego’s recent activities have not been “beneficial to the interests of Australia” in the context of paragraph 13(1A)(b), but are more aptly described as “remote, indirect and speculative” – see Re McCarthy and Minister for Immigration, Local Government and Ethnic Affairs [1993] AATA 166, at [11].

25.     As I have taken the view that the relevant time for Mr Perego to satisfy the criteria for the grant of a certificate of citizenship is the date on which I make my decision, his possible satisfaction of the requirement in paragraph 13(1A)(b) at some earlier date does not advance his case.

26. Nevertheless, the merits of Mr Perego’s case are so clearly in his favour – for the reason that he does, and at all relevant times did, comfortably satisfy all the criteria in subsection 13(1) of the 1948 Act – that his temporary (although lengthy) absence from Australia cannot be allowed to stand in the way of his being allowed to take Australian citizenship. That outcome would do no justice to a worthy candidate.

27. However, since Mr Perego is still “not present in Australia”, and given my finding that he does not satisfy paragraph 13(1A)(b), I am prevented from granting him a certificate of Australian citizenship at this time. In the circumstances, I consider it appropriate to adjourn the matter for six months, to 15 August 2008. This will allow Mr Perego, if he wishes and if he is able, to return to Australia so that the hearing of the matter can resume without the added complication of his absence from the country. At that time the Tribunal will need to determine whether Mr Perego continues to satisfy all the criteria in subsection 13(1) of the 1948 Act.

28.     I encourage Mr Perego to notify the Tribunal should he return to Australia before 15 August 2008 so that the hearing can be resumed at an earlier date if convenient to both parties.

Conclusion

29.     I therefore decide as follows:

(i)I find that Mr Perego satisfies all the criteria in subsection 13(1) of the 1948 Act.

(ii)The matter is adjourned to 15 August 2008, to be listed for resumed hearing before me on that date.

I certify that the 29 preceding paragraphs are a true copy of the reasons for the decision herein of Mr S E Frost, Member

Signed:         .....................................................................................
  Associate

Date of Hearing  26 November 2007
Date of Decision  15 February 2008
Solicitor for the Applicant          Self-represented
Solicitor for the Respondent     Mr B O'Brien, DLA Phillips Fox