Re Sadiq and Minister for Immigration and Multicultural and Indigenous Affairs

[2006] AATA 75

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2006] AATA 75

ADMINISTRATIVE APPEALS TRIBUNAL          № V2005/494

GENERAL ADMINISTRATIVE  DIVISION

Re:            muhammad sadiq

Applicant

And:minister for IMMIGRATION and multicultural and indigenous AFFAIRS

Respondent

DECISION

Tribunal:       Mr E. Fice, Member

Date:1 February 2006

Place:Melbourne

Decision:The decision of the Minister is affirmed.

(sgd) Egon Fice

Member

CATCHWORDS – Australian citizenship – exercise of discretion – Australian Citizenship Instructions – fetter on the exercise of discretion – beneficial to the interests of Australia – close connection with Australia – married to Australian citizen – current intention to live in Australia – hardship or disadvantage

Australian Citizenship Act 1948 ss 13(1), 13(4)(b)(i), 13(9)(c)

Re Lee and Department of Immigration and Ethnic Affairs (1988) 10 AAR 270

Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634

Howells and Another v Nagrad Nominees Pty Ltd (1982) 43 ALR 283

Sacharowitz v Minister for Immigration and Local Government and Ethnic Affairs (1992) 25 ALD 245

Re Wong and Minister for Immigration and Ethnic Affairs (1996)41 ALD 672

Minister for Immigration, Local Government & Ethnic Affairs v Roberts (1993) 113 ALR 151

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

REASONS FOR DECISION

1 February 2006  Mr E. Fice, Member

1.      Mr Muhammad Sadiq, a Pakistani national, applied for and was granted a Permanent Resident Visa (PRV) sub‑class 105 on 24 April 2000 on the condition that he first entered Australia no later than 27 August 2000.  PRVs were also granted to Mr Sadiq’s wife, Mrs Sadia Sheikh, and their four children on the same condition.  Mr Sadiq and his family arrived in Australia on 8 August 2000.  However, he did not remain in Australia for any length of time.  Mrs Sheikh and her children were granted Australian citizenship in 2003.  Mr Sadiq’s application for citizenship was refused by the Minister for Immigration and Multicultural and Indigenous Affairs (the Minister) on 12 May 2005.  Mr Sadiq seeks a review of that decision.

BACKGROUND

2.       Mr Sadiq was born in Pakistan on 20 March 1954.  He holds a Pakistani passport.  His qualifications are said to be the equivalent of those of a chartered accountant and his recent employment has been as a finance manager or financial controller for a number of companies based in Pakistan, the Sultanate of Oman, Saudi Arabia and, at present, in Kuwait.  All of the companies are involved in oil drilling and exploration. 

3.      Although Mr Sadiq was granted permanent residency in April 2000, he has never worked in Australia.  In the five years prior to applying for citizenship, Mr Sadiq had spent 87 days in Australia as a lawful permanent resident and 1607 days off‑shore.  He currently holds the position of Financial Controller of Kufpec Foreign Exploration Co. (Kufpec) based in Kuwait.  According to Mr Sadiq, Kufpec is a Kuwaiti government owned company, involved in very substantial oil exploration and production projects in Australia jointly with a number of Australian companies.  Mr Sadiq also claimed that the investment and revenue for both Kufpec and Australia are very large. 

4.      Mr Sadiq and his wife jointly purchased the house in Bundoora, Victoria where his wife and four children reside permanently.  Mr Sadiq’s eldest children are currently undertaking tertiary education while his two younger children attend high school in Melbourne.  Mr Sadiq and his wife have been married for twenty‑three years.  Although working overseas, he has supported his family by remitting approximately $120,000 per annum to his family.  Mr Sadiq claimed that he continued with his overseas employment rather than seek employment in Australia because he is able to earn a considerably greater income there than he could in Australia in similar employment.

CONSIDERATIONS

5.      The grant of Australian citizenship under the Australian Citizenship Act 1948 (the Act) is dealt with in Division 2 of Part III of the Act.  Most significantly, the grant of Australian citizenship to an applicant is subject to the Minister’s discretion, where an applicant is able to satisfy the Minister that he or she meets the conditions set out in s 13(1) of the Act.  It is common ground between the parties that Mr Sadiq does not meet the requirements of s 13(1)(d), in that he has not been present in Australia as a permanent resident for periods amounting, in the aggregate, to not less than one year during the period of two years immediately preceding the date of making the application.  It is also common ground between the parties that Mr Sadiq does not meet the requirements of s 13(1) (e), in that he has not been present in Australia as a permanent resident for periods amounting, in the aggregate, to not less than two years during the period of five years immediately preceding the date of application.  It is not disputed that Mr Sadiq spent 39 days in Australia in the two years prior to his application for citizenship and 87 days in the five years before making his application. 

6.      Because Mr Sadiq is unable to meet the requirements which would enable the exercise of the Minister’s discretion under s 13(1) of the Act, Mr Sadiq made his application pursuant to s 13(4)(b)(i) and s 13(9)(c) of the Act.  These sections of the Act provide that:

...

13(4)For the purposes of the application of subsection (1) in relation to an applicant for the grant of a certificate of Australian citizenship:

...

(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;

...

13(9)Subject to subsection (11), 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:

...

(c)who is a permanent resident and is the spouse, widow or widower of an Australian citizen;

...

7.      The effect of s 13(4)(b)(i) is to modify the requirements of s 13(1)(d) and (e) of the Act (Lee and Department of Immigration and Ethnic Affairs (1988) 10 AAR 270 at p 275).  It does this by including the period during which a permanent resident was not present in Australia but engaged in activities considered to be beneficial to the interests of Australia as a period during which an applicant was present in Australia as a permanent resident.

8.      The discretionary power contained in s 13(9)(c) is  independent and unfettered, separate and distinct from the discretionary power found in s 13(1) (Lee’s case and Re Wong and Minister of Immigration and Ethnic Affairs (1996) 41 ALD 672 at p 678).  As Gray J explained in these cases, this is a clear indication by the legislator that the requirements of s 13(1) do not have to be satisfied by an applicant for citizenship under s 13(9).   Gray J also said that it is clear that s 13(9) involves an exercise of discretion and that the mere fact of marriage to an Australian citizen does not provide a right to a grant of citizenship, but rather, it gives rise to a right to seek the exercise of the discretion. 

9.      Given that the exercise of the powers under s 13(4)(b)(i) and s 13(9)(c) involve the exercise of discretion, as Purvis J in re Wong said, it is appropriate that the Minister has developed policy guidelines in relation to the exercise of that discretion. The relevant policy is contained in Chapter 4 of the Australian Citizenship Instructions (ACI) and is titled “Grant of Australian Citizenship: Criteria for Grant”.  The guidelines in respect of s 13(4)(b)(i) provide:

Residence discretion: Residence outside Australia (s 13(4)(b)(i))

4.3.19 Periods 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").

4.3.20 The 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 requirement; 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.

4.3.21Under Ministerial policy, the discretion will usually only be exercised if the applicant is in Australia and was either:

•required to work overseas by a Federal, State or Territory Department, semi-government authority or private employer; or

•self-employed and frequent travel abroad was essential to the successful operation of their business, whether for an extended period or on a regular short-term basis; or

•engaged overseas in activities of a social, cultural, economic or political nature which are clearly beneficial to the interests of Australia and are widely recognised as such either by:

-the Australian community generally; or

-prominent persons associated with the applicant’s field of endeavour (for example, people engaged in aid programs, artists and entertainers of world standing).

4.3.22If the applicant is overseas, the discretion will normally not be exercised.

The Guidelines regarding the exercise of discretion under s 13(9)(c) provide:

4.5  Spouses, Widows and Widowers of Australian Citizens s 13(9)(c)

4.5.1Section 13(9)(c) gives a discretion to grant a certificate of Australian citizenship to a permanent resident who is the legal spouse, widow or widower of an Australian citizen.

4.5.2Applicants are usually required to meet all of the following requirements:

•the applicant is a permanent resident;

•the parties are living together as husband and wife unless:

-the Australian citizen spouse has died; in this case, the couple must have been living together at the time the spouse died; or

-the applicant and the Australian spouse are estranged because of domestic violence.

Note: If the parties are not living together but claim that the marriage exists, the case should be decided by an officer at APS6 level or higher.

•the applicant is of good character (see chapter 5);

•if the applicant is overseas, he/she intends to travel to Australia to live with the Australian citizen spouse;

•the applicant is likely, if granted a certificate of Australian citizenship, to reside, or to continue to reside, in Australia, or to maintain a close and continuing association with Australia (see 4.2.18 – 4.2.20);

•the applicant has a basic knowledge of the English language and an adequate knowledge of the responsibilities and privileges of citizenship, unless:

-the Australian citizen spouse has fulfilled these requirements and it is evident that there will be on-going support for the applicant spouse in these matters; or

-the applicant is estranged from the Australian citizen spouse because of domestic violence and it is evident that there will be on-going support for the applicant from an Australian citizen friend or relative who has fulfilled these requirements.

Note: If the applicant does not have this knowledge, the responsibilities and privileges of Australian citizenship (see 4.2.14 – 4.2.17) should be explained during the citizenship interview. If necessary, this should be done through an interpreter.

•the applicant has been present in Australia as a permanent resident for at least 2 years in the five years immediately before the application, at least 12 months of which must have been within the 2 years immediately prior to that date unless:

- the applicant has been a permanent resident in Australia continuously for the 12 months immediately prior to application and would otherwise suffer significant hardship or disadvantage (see 4.3.33 for guidance on hardship or disadvantage).

4.5.3Spouses of Australian citizens who live overseas with their Australian citizen spouse, and are permanent residents of Australia may have difficulty meeting the residence requirements for citizenship. The primary policy objective underpinning the residence requirements is the development and maintenance of close and continuing ties with Australia. This policy objective can be achieved through the applicant's relationship with their Australian citizen spouse, children if any, extended family, and through return visits to Australia.

4.5.4Spouses of Australian citizens would usually be eligible for grant of citizenship if they:

-are permanent residents of Australia;

-live or have lived overseas with their Australian citizen spouse because of the Australian citizen's work; and

-would have been eligible for citizenship if they were residing in Australia during that period.

4.5.5The occupation of the Australian citizen spouse is not relevant. However, evidence of the Australian citizen's spouse overseas employment is required, such as, a letter from the employer, including a statement that the non citizen spouse is accompanying them.

While it is appropriate that the Minister has developed these policy guidelines in respect of the exercise of the discretion, some care needs to be taken in the way in which those guidelines are used.  Brennan J in Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634 at pp 640-641 made the following points:

(a)decision-making is facilitated by the guidance given by an adopted policy;

(b)the integrity of decision-making in particular cases is better assured if decisions can be tested against policy;

(c)policy can diminish inconsistencies which might otherwise appear in a series of decisions;

(d)a policy must be consistent with the statute.  In order to do so, it must allow the Minister to take into account relevant circumstances, it must not require him to take into account irrelevant circumstances and it must not serve a purpose foreign to the purpose for which the discretionary power was created;

(e)discretion cannot be so truncated by a policy as to preclude consideration of the merits of specified classes of cases;

(f)policy must leave the Minister free to consider the unique circumstances of each case;

(g)the policy must not be applied so rigidly as to reject an applicant without hearing what he or she has to say; and

(h)the Applicant is entitled to put forward reasons urging that the policy should be changed or setting out reasons why it should not be applied to him or her.

10.     Smithers, Fox and Franki JJ in Howells and Another v Nagrad Nominees Pty Ltd (1982) 43 ALR 283 at p 307 said:

Where the power given relates to the consideration of individual cases, it is not to be denied that the predominant aspect must be the consideration of the particular case. The merits of that case must be considered genuinely and realistically; there must always be a readiness to depart from policy. The policy does a dis‑service to those who have to measure it against the individual situation if it is expressed in dogmatic or mandatory terms.

11.     In following the decision in Howells, Burchett J in Sacharowitz v Minister for Immigration and Local Government and Ethnic Affairs (1992) 25 ALD 245 at p 248 pointed out that the policy guidelines with which he was dealing in that case purported to contain “a series of fairly precise requirements”.  He said that to the extent that they did so, the law as declared by the Full Court in Howells case demanded that they be read down.  Purvis J in re Wong noted some problems with the policy guidelines in respect of s 13(9)(c) due to the manner in which they were expressed, seemingly setting out mandatory requirements in order for the discretion to be exercised favourably.  The same criticism can be levied at the guidelines dealing with s 13(4)(b)(i), although the current guidelines for exercise of discretion under s 13(9)(c) do not suffer from the same problem.  Mindful of what the Federal Court has said about the application of policy guidelines, I am of the view that the way in which the guidelines in respect of s 13(4)(b)(i) are drafted may constitute a fetter on the exercise of discretion.  However, when the guidelines are read down in the way suggested in Howells case, it is my view that they are consistent with the statute and express relevant considerations to be taken into account. 

12.     Mr Sadiq’s claim under s 13(4)(b)(i) is dependent essentially on a finding that he was, during the period of five years prior to his application for citizenship, engaged in activities which were “beneficial to the interests of Australia”.  The phrase, “beneficial to the interests of Australia”, was considered by Einfeld J in Minister for Immigration, Local Government & Ethnic Affairs v Roberts (1993) 113 ALR 151, where he said at p 156:

It seems to me that the term ‘activities beneficial to the interests of Australia’ means something in the nature of activities which provide some advantage to Australia, whether commercial or otherwise. The concept necessarily connotes some public interest of Australia, even if of a general or non-specific character, and means more than the private interests of the respondent. The section retires some objective benefit to Australia.

13.     The facts relied on by Mr Sadiq to support his application under s 13(4)(b)(i) are two‑fold.  First, Mr Sadiq submitted that the fact that he remitted the sum of approximately $120,000 per year to Australia for the support of his family constituted a significant contribution to the Australian economy.  He said that the purchase of goods and services by his family, including everyday necessities as well as education and maintenance of the family home, all benefited the Australian economy in general.  Secondly, Mr Sadiq submitted that currently his position as financial controller of Kufpec causes him to spend approximately 50 per cent of his time working on Australian oil exploration and production projects because of the association that company has with Australian companies involved in oil exploration and production projects in Australia.  Furthermore, according to Mr Sadiq, if he were granted Australian citizenship, Kufpec would probably assign him to live and work in Australia, as the company maintains an office in Perth.  He said that it was the company’s policy only to employ Australian citizens in the Perth office and if he were transferred to Perth, his ability to benefit Australia would be greatly enhanced.  I was also invited to take account of the fact that the involvement of Mr Sadiq’s children in Australia at school and in various activities, and the involvement of his wife and children at a formal level by their becoming Australian citizens, is also in the interest of Australia.  However, in my opinion, that is not a relevant consideration for the exercise of discretion pursuant to s 13(4)(b)(i) of the Act.  As Einfeld J said in Roberts case at p 156:

Family ties and a close association with Australia are in a similar category. Although relevant to the application by virtue of s 13(1)(j), these matters are in my opinion not relevant to the consideration of whether activities overseas are ‘beneficial’ to Australia. These aspects are only important considerations if the Act says so. Paragraphs (d) and (e) of s 13(1) are designed to address the ‘association’ question but there is no reference to ‘family connections’. Without specific evidence, I can see no benefit to Australia, as distinct from some happiness and contentment of the family concerned, and perhaps the general desirability of permanent residents undertaking the obligations of citizenship, from Mr Roberts becoming a citizen as distinct from a permanent resident.

14.     In my view, the remittance of approximately $120,000 per year by Mr Sadiq from Kuwait to Australia to support his family is not an activity beneficial to the interests of Australia.  As Einfeld J pointed out in Roberts case, the concept of an activity beneficial to the interests of Australia necessarily connotes some public interest of Australia.  The remission of the $120,000 per year has been for the personal use of and sustenance of his family.  It involves his private interests and there was no evidence of any objective benefit to Australia’s public interest. 

15.     There are also a number of difficulties with Mr Sadiq’s claim that he could benefit Australia in the oil exploration and production industry, were he granted citizenship and transferred to the Perth office of Kufpec.  The first problem is that the guidelines require the Applicant to have been personally engaged in activities overseas beneficial to the interests of Australia and not just benefits for the company or the organisation for which the Applicant works.  Furthermore, the guidelines state that the discretion would usually only be exercised if the Applicant is in Australia and is either required to work overseas by his employer or, if self‑employed, required to travel abroad frequently to ensure the successful operation of his or her business.  Although, Mr Sadiq was in Australia when he was granted permanent residency, the evidence indicates that he continued to work overseas immediately subsequent to being granted a PRV.  Paragraph 4.3.22 of the AIC specifically states that if an applicant is overseas, the discretion will normally not be exercised.  As for Mr Sadiq’s claim that there will be future benefits which will accrue to Australia if he is granted citizenship, there are at least two things that should be said about that.  The first is that Mr Sadiq admitted in evidence that even if he were granted Australian citizenship, it would not necessarily follow that he would be transferred to the Perth office of Kufpec.  In fact, he said that there was no current vacancy at that office and he subsequently agreed that his chances of being transferred to the office were not better than 50/50.  The second point is that paragraph 4.3.20 of the Guidelines requires that the activities which are beneficial to the interests of Australia must occur during the relevant period or periods, which are the residence periods set out in s 13(1) of the Act.  The Guidelines expressly state that s 13(4)(b)(i) should not apply where the benefits are not current, irrespective of whether benefits may occur in the future.  In my opinion, that is a relevant consideration given that the section itself involves substituting the relevant activities overseas for the mandatory period of residence in Australia.  It follows that Mr Sadiq’s contentions that his ability to benefit Australia will be enhanced, should citizenship be granted, is not a relevant consideration. 

16.     The second limb of Mr Sadiq’s application is based on s 13(9)(c).  In Lee’s case at p 275, Gray J noted that:

In considering that question [whether an applicant under s 13(9) has such a close connection with Australia as to warrant the grant of citizenship], the Minister or his delegate may take into account quite properly questions such as whether the Applicant has lived in Australia, and if so for what period or periods, and whether the Applicant would suffer hardship or disadvantage if not granted citizenship.  In that sense, some of the considerations expressed elsewhere in the section may be taken into account properly exercised of the discretion under s 13(9). 

17.     Also, Davies J, sitting as President of the Tribunal in Re Dainty and Minister for Immigration and Ethnic Affairs (1987) 12 ALD 416 said at pp 417-418:

… s 13(9) looks primarily not to hardship or disadvantage as set out in the Ministerial guidelines but to family connections. …

In that case, Davies J took into account the fact that the Applicant was married to an Australian citizen who had lived in Australia all of her life; that the matrimonial home had been in Australia for five years; that the Applicant and his spouse had two children in Australia who are Australian citizens; that they intended to remain in Australia; and that the centre of their family, social and business affairs was in Australia. 

18.     No issue was taken regarding whether Mr Sadiq is a permanent resident.  Although Mr Sadiq and his wife are not living together as husband and wife, there is no doubt whatsoever from the evidence that a marriage exists and that there is a very strong bond between Mr Sadiq, his wife and his children.  Family ties are maintained by frequent telephone discussions and via email between Mr Sadiq and his wife and children.  Also, Mr Sadiq’s wife and their children have visited Mr Sadiq overseas from time to time, particularly during school holidays.  He has also visited Australia, again, mainly during school holidays.  It was also clear to me during the course of the hearing that the separation between Mr Sadiq and his wife and children was causing them considerable distress.  The evidence also clearly indicated that Mrs Sadiq and her children had become well established in the Australian community and have participated in community activities in their neighbourhood and the schools attended by their children.  There is no question that Mr Sadiq is of good character.

19.     The real problem in this case is the reason for Mr Sadiq’s absence from Australia and whether the grant of Australian citizenship would result in him coming to Australia to reside.  Although the stipulated periods of residence which are a prerequisite to the grant of Australian citizenship pursuant to s 13(1) of the Act are varied or modified by ss (1)-(8) of the Act, the essential themes underlying the grant of Australian citizenship throughout the Act and the ACIs are residence and a close continuing association with Australia.  While there are modifications to the period of residence required for the ordinary grant of Australian citizenship, residence and presence in Australia are of paramount importance when considering whether to exercise a discretion under s 13(9)(c).

20.     Although Mr Sadiq entered Australia on 8 August 2000 following the grant of a PRV, he has never been employed in Australia, nor has he resided in Australia.  He departed Australia on 18 August 2000 and from that day to 10 July 2004, he had made six visits to Australia.  At the time he was granted a PRV, he was working in the Sultanate of Muscat and Oman.  On 1 February 2001, Mr Sadiq was transferred to Saudi Arabia and he then joined Kufpec on 26 August 2002, being based in Pakistan and then subsequently in Kuwait.  Mr Sadiq said that he continued to work overseas after being granted permanent residency in Australia because it would be extremely difficult for him to obtain similar employment in Australia at the same level of remuneration.  His evidence was that he did make one approach to BHP Limited in about 2000 regarding the possibility of employment in Australia and was told that there was absolutely no prospect of him being employed with that firm as the firm had a policy of recruiting vertically rather than laterally.  Mr Sadiq did not produce any evidence to support that statement.  He did concede that he has made no other attempts to obtain employment in Australia since 2000.

21.     Mr Sadiq’s evidence was that the prospect of losing a hundred thousand dollars per year in annual income has deterred him from seeking employment in Australia.  This is despite the fact that he has made no serious attempts to obtain employment in Australia, such as contacting employment agencies.

22.     As far as Mr Sadiq’s intention to travel to Australia to live with his wife is concerned, that would only happen if Australian citizenship were granted and if he was subsequently successful in obtaining a transfer in his current employment to Perth.  Therefore, as far as the AICs are concerned, it is clear that the grant of Australian citizenship will not necessarily result in Mr Sadiq residing in Australia and he has no current intention to travel to Australia to live with his wife.  On the other hand, I am satisfied that Mr Sadiq has strong ties with his wife and children, whose lives are essentially based in Australia.  Because of those ties, Mr Sadiq will more likely than not maintain a close and continuing association with Australia. 

23.     Mr Sadiq also claims that to deny him Australian citizenship because of his failure to meet residence requirements would cause him to suffer significant hardship or disadvantage.  However, paragraph 4.3.33 of the AICs sets out the situations of hardship which, as a matter of policy, the Minister would consider.  None of the three situations discussed under that paragraph apply to Mr Sadiq. 

CONCLUSIONS

24.     It is clear that Mr Sadiq does not meet the requirements for the exercise of discretion under s 13(4)(b)(i) of the Act.  His activities in the five year period prior to his application for Australian citizenship cannot be described as “beneficial to the interests of Australia”.  In addition, Mr Sadiq could not be said to have resided in Australia for any length of time since the grant of a PRV.  The reasons for this have nothing whatsoever to do with activities beneficial to the interests of Australia; but rather Mr Sadiq has not been prepared to risk a substantial reduction in income in attempting to find employment of a similar standard and remuneration to that which he is able to command overseas.  In fact, given that he has made no serious enquiries about obtaining employment in Australia since 2000, I am of the view that Mr Sadiq is prepared to put his financial interests ahead of the interests of Australia.

25.     While it is true that he continues to maintain strong family connections with his wife and children who are Australian citizens, he has spent most of the time in the last five years outside of Australia and he intends to continue to do so unless, upon the grant of Australian citizenship, and a position becoming available in the Perth office of Kufpec, he is able to move to Australia as an employee of that company.  I accept that his separation from his family causes distress.  However, that distress can be alleviated by Mr Sadiq seeking employment in Australia.  In any event, the grant of Australian citizenship may not alleviate his distress if Mr Sadiq cannot obtain a transfer to his company’s Perth office.  Other than that distress, I am not satisfied that Mr Sadiq will suffer any significant hardship or disadvantage if he is not granted Australian citizenship.

26.     Therefore, on the balance of the evidence before me, I am not satisfied that the discretion in either s 13(4)(b)(i) or s 13(9)(c) should be exercised in favour of Mr Sadiq.  The decision of the Minister should be affirmed.

I certify that the twenty‑six [26] preceding paragraphs are a true copy of the reasons for the decision herein of

Mr E. Fice, Member

(sgd)     Catherine Lake

Clerk

Date of Hearing:  16 December 2005

Date of Decision:  1 February 2006

Counsel for the applicant:         Mr A. Krohn

Solicitor for applicant:               Zolis Lawyers

Solicitor for respondent:            Mr N. Arora, Clayton Utz Lawyers