Re Sapronov and Minister for Immigration and Citizenship
[2011] AATA 126
•25 February 2011
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2011] AATA 126
ADMINISTRATIVE APPEALS TRIBUNAL )
) No 2010/0467
GENERAL ADMINISTRATIVE DIVISION ) Re MAXIM SAPRONOV Applicant
And
MINISTER FOR IMMIGRATION AND CITIZENSHIP
Respondent
DECISION
Tribunal Mr Egon Fice, Senior Member Date25 February 2011
PlaceMelbourne
Decision The Tribunal sets aside the Minister’s decision dated 12 January 2010 and remits the matter to the Minister to determine Mr Sapronov’s eligibility to become an Australian citizen taking into account the Tribunal has found, in exercising the discretion provided for in s 22(9) of the Australian Citizenship Act 2007, that Mr Sapronov satisfies the general residence requirement in s 22(1) of the Act. ............[sgd] Egon Fice].............
Senior Member
CITIZENSHIP – Temporary Residence Visa – Employer Nomination Scheme Visa – general residence requirement – Australian Citizen – overseas absences – Ministerial discretion – spouse or de facto partner – permanent resident – departmental policy – ministerial policy - explanatory memorandum – Australian citizenship instructions – accompanying a spouse overseas – close and continuing association with Australia
Acts Interpretation Act 1901 ss 15AA, 15AB
Australian Citizenship Act 1948 s 13(9)(c)
Australian Citizenship Act 2007 ss 21(2), 22, 22(1), 22(1A), 22(1B), 22(9), 22(10), 24(1), 52,
Australian Citizenship Bill 2005 c 22
Migration Act 1958
CIC Insurance Ltd v Bankstown Football Club Ltd (1997) 187 CLR 384
Drake v Minister for Immigration and Ethnic Affairs (1979) 2 ALD 60
Hneidi v Minister for Immigration and Citizenship [2009] FCA 983
Hneidi v Minister for Immigration and Citizenship (2010) 114 ALD 26
Moradian v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 81 ALD 565
Port of Brisbane Corporation v Deputy Commissioner of Taxation (2004) 81 ALD 549
Re Becker and Minister for Immigration and Ethnic Affairs (1977) 1 ALD 158
Stringer v Minister of Housing and Local Government [1970] 1 WLR 1281
Australian Citizenship Bill 2005 Explanatory Memorandum
Australian Citizenship Bill 2005 Minister’s Second Reading Speech on Wednesday, 9 November 2005
Australian Citizenship Instructions 1 January 2011
Shorter Oxford English Dictionary
REASONS FOR DECISION
25 February 2011 Mr Egon Fice, Senior Member 1. Mr Maxim Sapronov is a citizen of the Russian Federation. On 28 November 2003 Mr Sapronov was granted a Subclass 457 Temporary Residence Visa. He has been in a de facto relationship with Ms Alla Zheleznova for in excess of 15 years and they have one child who is now 14 years of age. Mr Sapronov and his family moved to Melbourne in January 2004 where he took up the position of the Sales and Marketing Director in the head office of an Australian company, World Wide Exporters Pty Ltd (WWE). He became a director and secretary of that company in March 2004. He holds one third of its issued share capital.
2. Mr Sapronov was granted permanent residence on 22 October 2007 under a Subclass 856 Employer Nomination Scheme Visa. He lodged an application for Australian Citizenship by conferral with the Department of Immigration and Citizenship (the Department) on 27 May 2009.
3. Ms Zheleznova and her son were granted Australian citizenship which was conferred on 22 April 2009.
4. In a letter dated 12 January 2010 Mr Sapronov was informed by the Department that his application for Australian citizenship had been refused. This was because Mr Sapronov did not meet the residence requirements set out in the Australian Citizenship Act 2007 (the Act).
5. Mr Sapronov lodged an application for review by this Tribunal, pursuant to s 52 of the Act, on 4 February 2010.
6. The material facts in this matter are not in dispute. Mr Sapronov accepts that he does not satisfy the general residence requirement in s 22(1) of the Act. The only issues in this case are whether:
(a)Mr Sapronov satisfies the conditions for the exercise for ministerial discretion set out in s 22(9) of the Act; and
(b)if the answer to (a) is in the affirmative, whether the ministerial discretion should be exercised in Mr Sapronov’s favour.
ELIGIBILITY FOR CITIZENSHIP BY CONFERRAL
7. Subdivision B of Part 2 Division 2 of the Act deals with citizenship by conferral. A person becomes an Australian citizen under subdivision B if:
(a)the Minister decides under s 24(1) of the Act to approve the person becoming an Australian citizen; and
(b)if the person is required to make a pledge of commitment to become an Australian citizen, the person makes the pledge.
8. The general eligibility criteria for citizenship are set out in s 21(2) of the Act. It provides:
General eligibility
(2)A person is eligible to become an Australian citizen if the Minister is satisfied that the person:
(a)is aged 18 or over at the time the person made the application; and
(b)is a permanent resident:
(i) at the time the person made the application; and
(ii) at the time of the Minister’s decision on the application; and
(c)satisfies the residence requirement (see section 22), or has completed relevant defence service (see section 23), at the time the person made the application; and
(d)understands the nature of an application under subsection (1); and
(e)possesses a basic knowledge of the English language; and
(f)has an adequate knowledge of Australia and of the responsibilities and privileges of Australian citizenship; and
(g)is likely to reside, or to continue to reside, in Australia or to maintain a close and continuing association with Australia if the application were to be approved; and
(h)is of good character at the time of the Minister’s decision on the application.
(2A)Paragraphs (2)(d), (e) and (f) are taken to be satisfied if and only if the Minister is satisfied that the person has, before making the application:
(a)sat a test approved in a determination under section 23A; and
(b)successfully completed that test (worked out in accordance with that determination). …
9. In this matter, we are concerned primarily with the general residence requirement set out in s 22 of the Act. Insofar as it is relevant, s 22 provides:
(1)Subject to this section, for the purposes of section 21 a person satisfies the residence requirement if:
(a)the person was present in Australia for the period of 4 years immediately before the day the person made the application; and
(b)the person was not present in Australia as an unlawful non-citizen at any time during that 4 year period; and
(c)the person was present in Australia as a permanent resident for the period of 12 months immediately before the day the person made the application.
Overseas absences
(1A)If:
(a)the person was absent from Australia for a part of the period of 4 years immediately before the day the person made the application; and
(b)the total period of the absence or absences was not more than 12 months;
then, for the purposes of paragraph (1)(a), the person is taken to have been present in Australia during each period of absence.
(1B)If:
(a)the person was absent from Australia for a part of the period of 12 months immediately before the day the person made the application; and
(b)the total period of the absence or absences was not more than 3 months; and
(c)the person was a permanent resident during each period of absence;
then, for the purposes of paragraph (1)(c), the person is taken to have been present in Australia as a permanent resident during each period of absence.
…
10. It is common ground between the parties that Mr Sapronov was not present in Australia for the period of four years immediately before he lodged his application for citizenship on 27 May 2009. He had a number of overseas absences between 27 May 2005 and 26 May 2009 due to his work commitments. In order to meet the general residence requirement, Mr Sapronov was required to be present in Australia for no less than 1095 days in that four year period prior to his application for citizenship. This takes into account the ameliorating provision for overseas absences in s 22(1A) of the Act. Although the calculations by the Minister do not agree with the calculations made on behalf of Mr Sapronov, the discrepancy is not significant because Mr Sapronov agrees he was not present in Australia for 1095 days during that four year period. According to his calculation, he spent 1043 days as a lawful resident in Australia during that period. According to the Minister, he spent some five days less than that in Australia. It matters not which is correct as Mr Sapronov is either 52 days or 57 days short of meeting the first residence requirement.
11. Section 22(1B) ameliorates the requirement in s 22(1)(c) that the person be present in Australia for a period of 12 months immediately before the day the person made the application. The person can satisfy that requirement as long as the total period of absences overseas during that 12 month period was not more than 90 days.
12. According to the Minister, Mr Sapronov was absent from Australia on 185 days during that 12 month period. According to Mr Sapronov, he was absent for 159 days during that 12 month period. Again, it matters not which party is correct. Both agree that Mr Sapronov was not present in Australia for at least 275 days in the 12 month period immediately prior to his application for citizenship being lodged. It follows that Mr Sapronov does not meet the general residence requirement set out in s 22 of the Act. For that reason, Mr Sapronov relied on s 22(9) of the Act which allows the Minister to exercise discretion and treat a period as one in which the person was present in Australia if four conditions are met. Sections 22(9) and (10) provide:
Ministerial discretion—spouse, widow or widower of Australian citizen
(9)If the person is the spouse, widow or widower 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 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.
(10)For the purposes of subsection (9), spouse includes de facto spouse.
THE EXERCISE OF MINISTERIAL DISCRETION
13. There was no dispute about the fact that Ms Zheleznova was an Australian citizen at the time Mr Sapronov made his application for citizenship. There was also no dispute about the fact that Mr Sapronov was the de facto spouse of Ms Zheleznova when he made his application for citizenship. Therefore, the Minister’s discretion provided for in s 22(9) will be enlivened if Mr Sapronov is able to meet the four prerequisites set out in that section.
was mr sapronov the spouse of ms zheleznova during the relevant period
14. The first question which arises is what is meant by the expression: a spouse of that Australian citizen during that period in the context of s 22(9). In order to understand that expression, it needs to be read in the context of all of the subsections set out under s 22 of the Act. The section deals with general residence requirements and it provides for two overlapping periods of time during which an applicant’s presence is required in Australia. The first period of four years refers simply to the person being present in Australia, irrespective of that person’s residence status. The second period, which is the 12 month period immediately before the applicant makes his or her application, requires the applicant’s presence as a permanent resident. The length of these two periods is ameliorated by s 22(1A) and (1B) where the applicant has overseas absences during those periods.
15. In effect, an applicant satisfies the general residence requirement provided he or she is not absent from Australia for more than 365 days immediately before the day on which the person made the application for citizenship, whether during that period the person was a permanent resident or was merely present in Australia on a temporary visa; and not more than 90 days in the 12 months immediately preceding the day on which the citizenship application is made, as a permanent resident. Therefore, as I understand the legislation, the reference in s 22(9) to a period is a reference to any period of time during the four years immediately preceding an application for citizenship, provided that an applicant was a permanent resident during any period which he or she wishes to have deemed to be a period in which they were present in Australia (s 22(9)(c)).
16. Mr Sapronov became a permanent resident on 22 October 2007. Therefore, any period of time which he spent outside Australia after 22 October 2007 may be taken to be a period when Mr Sapronov was present in Australia if he satisfies all of the four factors required to enliven the Minister’s discretion.
17. Mr Sapronov’s movements details record discloses the following absences overseas while he was a permanent resident of Australia.
ABSENCE OVERSEAS
DAYS
31 January 2008 – 11 February 2008
12
28 March 2008 – 2 April 2008
15
29 May 2008 – 21 July 2008
54
18 September 2008 – 20 October 2008
34
23 October 2008 – 22 November 2008
31
4 January 2009 – 16 January 2009
13
10 February 2009 – 8 April 2009
58
TOTAL DAYS
217
18. Although the exact number of days outside of Australia varied slightly according to each party, it is clear that Mr Sapronov did not meet the requirement to be present in Australia for four years immediately before the application was made, allowing for an absence of 12 months. As far as presence as a permanent resident for the period of 12 months immediately before his application is concerned, allowing for a permissible absence of 90 days, Mr Sapronov failed to meet the general residence requirement by about 69 days. Given that he spent at least 217 days overseas while a permanent resident of Australia, if Mr Sapronov satisfies the four requirements under s 22(9) of the Act, he would satisfy the general residence requirements under s 22(1) of the Act if the discretion were exercised in his favour.
19. There was no question that Mr Sapronov was the de facto spouse of an Australian citizen while he was overseas and a permanent resident of Australia. However, Mr Rhys Bower, who appeared on behalf of the Minister, submitted that s 22(9) should be read such that it is the Australian citizen who was not present in Australia during the relevant period and the person applying for Australian citizenship was overseas because they were accompanying their Australian citizen spouse. Mr Bower relied on the Explanatory Memorandum to the Bill and the Second Reading Speech of the Minister to support that interpretation. In addition, Mr Bower submitted that the Department had developed a policy regarding the exercise of the discretion in s 22(9) of the Act which should be applied by this Tribunal. That policy statement is contained in the Australian Citizenship Instructions (ACIs), the current document being published on 1 January 2011. The introductory paragraph of the ACIs states:
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.
20. As for the operation of s 22(9), the ACIs state:
Under s 22(9), periods spent overseas by a permanent resident who is the spouse, de facto partner or surviving spouse or de facto partner of an Australian citizen at the time of making an application, can be counted as periods of permanent residence in Australia.
The discretion to treat periods spent overseas by an applicant as periods during which the applicant was present in Australia as a permanent resident can only be applied to periods when:
·the applicant was the spouse or de facto partner of a person who was an Australian citizen, and
·the applicant was a permanent resident and
·the applicant had a close and continuing association with Australia (see below).
If the applicant is the surviving spouse or de facto partner of an Australian citizen, they can only count time while their Australian citizen spouse or de facto partner was alive.
Policy is that this discretion would usually only be exercised if the applicant was overseas with their Australian citizen spouse or de facto partner.
interpretation of section 22(9)
21. Mr Bower submitted that the Explanatory Memorandum and the Second Reading Speech to the Australian Citizenship Bill 2005 (the Bill) support an interpretation of s 22(9)(a) that requires the applicant to be the spouse of an Australian citizen during the relevant periods, rather than the spouse of a person who subsequently becomes an Australian citizen.
22. The reference in s 22(9) to the person is plainly a reference to the person applying for Australian citizenship. That is precisely what is stated in the opening sentence of that section of the Act. The only relationship referred to is that the applicant be the spouse or de facto spouse of an Australian citizen. There is nothing in any part of that section of the Act which might suggest that it only applies to a person who is accompanying a spouse who is an Australian citizen whilst overseas. A plain reading of the section indicates that it applies to any spouse or defacto spouse of an Australian citizen who, although a permanent resident of Australia, is outside of the country for a substantial period of time and might need to rely on that period to be treated as a period of time when that person was present in Australia for the purpose of meeting the general residence requirement.
23. In support of his submission, Mr Bower referred to the Explanatory Memorandum to the Bill when the new Citizenship Act was introduced into the Parliament in 2005. The use of extrinsic materials to aid the interpretation of statutes is now principally governed by s 15AB of the Acts Interpretation Act 1901 (the Interpretation Act). Section 15AB, insofar as it is relevant, provides:
15AB Use of extrinsic material in the interpretation of an Act
(1)Subject to subsection (3), in the interpretation of a provision of an Act, if any material not forming part of the Act is capable of assisting in the ascertainment of the meaning of the provision, consideration may be given to that material:
(a)to confirm that the meaning of the provision is the ordinary meaning conveyed by the text of the provision taking into account its context in the Act and the purpose or object underlying the Act; or
(b)to determine the meaning of the provision when:
(i) the provision is ambiguous or obscure; or
(ii) the ordinary meaning conveyed by the text of the provision taking into account its context in the Act and the purpose or object underlying the Act leads to a result that is manifestly absurd or is unreasonable.
(2)Without limiting the generality of subsection (1), the material that may be considered in accordance with that subsection in the interpretation of a provision of an Act includes:
(a)…
(b)…
(c)…
(d)…
(e)any explanatory memorandum relating to the Bill containing the provision, or any other relevant document, that was laid before, or furnished to the members of, either House of the Parliament by a Minister before the time when the provision was enacted;
(f)the speech made to a House of the Parliament by a Minister on the occasion of the moving by that Minister of a motion that the Bill containing the provision be read a second time in that House; …
24. I am not certain whether Mr Bower’s reference to the Explanatory Memorandum was based on s 15AB(1)(a) or s 15AB(1)(b). Although I am of the view that s 22(9) is inelegantly phrased, and the reference to a person being present in Australia as a permanent resident appears to be repeated, its provisions are not ambiguous or obscure, nor would the ordinary meaning conveyed by the text in the context of the Act and taking into account the purpose or object underlying the Act lead to a result that is manifestly absurd or unreasonable. It does not appear to me to fall within s 15AB(1)(b) of the Interpretation Act.
25. Without reference to the Explanatory Memorandum, the purpose of s 22(9) of the Act seems to be to permit the spouse of an Australian citizen to treat periods spent outside Australia, while that person is a permanent resident of Australia, as periods which may go towards satisfying the general residence requirements in s 22(1) of the Act. It does not state that the reason for being overseas must be to accompany the Australian citizen spouse. On its face, it applies whether the person is or is not accompanied.
26. The Explanatory Memorandum may, however, be used to confirm that the meaning in s 22(9) is the ordinary meaning conveyed by the text of the provision taking into account its context in the Act and the purpose or object underlying the Act.
27. Section 15AA of the Interpretation Act commands that Acts should be construed to give effect to their purpose or objects. Section 15AA provides:
15AARegard to be had to purpose or object of Act
(1)In the interpretation of a provision of an Act, a construction that would promote the purpose or object underlying the Act (whether that purpose or object is expressly stated in the Act or not) shall be preferred to a construction that would not promote that purpose or object.
28. The Explanatory Memorandum to the Bill, insofar as it is relevant, states at clause 22:
This new subsection [9] amends the act by requiring that spouses of Australian citizens meet the same criteria as other adult applicants for citizenship. This reflects current policy, and the modern expectation that adult applicants should qualify in their own right rather than relying on a spousal relationship with another person.
However, it is recognised that in some circumstances the spouse of an Australian citizen may have difficulty meeting the residence requirements, for example if they are accompanying their Australian citizen spouse overseas (for example, spouses of Australians working overseas for international organisations). As a result this subsection introduces a new discretion to waive part or all of the residence requirements for the spouse of an Australian citizen who can demonstrate a close and continuing association with Australia.
29. The first thing to note about the Explanatory Memorandum is that the new subsection is intended to make the criteria for Australian citizenship the same for all adults, not permitting them simply to rely on a spousal relationship. Under the Australian Citizenship Act 1948 (the Old Act), the Minister had discretion to grant Australian citizenship to a person who was a permanent resident and who was the spouse, widow or widower of an Australian citizen (s 13(9)(c)). There was no requirement for the spouse to meet either the residency requirement or the close and continuing association with Australia requirement which applied to other applicants.
30. However, now that the Act requires all applicants, including spouses, to meet the residence and close and continuing connection with Australia requirements, it appears the Minister recognised that this may cause additional problems as far as spouses or de facto spouses were concerned. For example, they may be accompanying their Australian citizen partner overseas and therefore are not present in Australia for the required residence periods. However, to suggest that the amelioration of the residence requirements was intended to only apply to spouses of Australian citizens working overseas is simply wrong. The fact that the Explanatory Memorandum cites such a circumstance as an example necessarily implies that it is only one of a number of possible situations in which the ameliorating provisions should apply.
31. In my opinion, the Explanatory Memorandum in fact confirms that one should not read into the text of s 22(9) of the Act, anything further than is stated in that provision. Its purpose is to require spouses to meet the residency and close and continuing association with Australia requirements during the period they are absent from Australia subject to some relaxation of the residence requirement where they meet the criteria set out in s 22(9)(a) – (d); and where the Minister forms the view that the discretion should be exercised in that person’s favour.
32. Mr Bower also referred to the Minister’s Second Reading Speech made on Wednesday, 9 November 2005. Mr John Cobb, the then Minister for Citizenship and Multicultural Affairs, said:
However, as announced in July 2004, spouses of Australian citizens will need to meet the same requirements as other applicants. And, as announced by the Prime Minister on 8 September, the residential qualifying period of not less than two years in Australia in the previous five years is being extended to three years. There will be no change to the requirement to have spent one year in Australia in the two years immediately prior to making the application. …
The residence exemptions are being strengthened and made more equitable. …
In the future, up to two years spent outside Australia as a permanent resident or in Australia as a temporary resident may be treated as time spent in Australia as a permanent resident, provided the person has been involved in activities beneficial to Australia. [the provisions dealing with activities beneficial to Australia were subsequently not included in the act]. …
There will only be two circumstances in which a person will be exempt from the requirement to spend at least 12 months as a permanent resident.
The first circumstance involves a spouse of an Australian citizen. Some spouses have very close family and other connections with Australia but find it difficult to accumulate the necessary time as a permanent resident in Australia because they accompany their Australian family overseas – for example, in association with their spouse’s employment. Definition of ‘spouse’ for the purpose of this provision will include a de facto spouse.
33. Again, the Second Reading Speech refers simply to some spouses who find it difficult to accumulate the residence time required to meet s 22(1) of the Act and the Minister cited, as an example, a person travelling overseas in association with their spouse’s employment. This explanation adds nothing to the Explanatory Memorandum. It simply emphasises that the accompanying spouse problem is an example of the reason why a person may not meet the residence requirements, but nevertheless meets the close and continuing association with Australia requirement. Such a person should not be excluded from Australian citizenship only because they have not been able to meet the residency requirements.
34. It would seem that the resort to extrinsic materials to ascertain the purpose or object of an Act under the Interpretation Act would only be permissible when used in conjunction with s 15AB(1)(b) of the Interpretation Act. This was explained by Gray J in Moradian v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 81 ALD 565 at 574. However, the High Court of Australia decision in CIC Insurance Ltd v Bankstown Football Club Ltd (1997) 187 CLR 384 affirmed the Common Law principle that resort could be had to explanatory memoranda to determine the mischief which was intended to be remedied by a statute. Brennan CJ, Dawson, Toohey and Gummow JJ said, at 408:
It is well settled that at common law, apart from any reliance upon s15AB of the Acts Interpretation Act 1901 (Cth), the court may have regard to reports of law reform bodies to ascertain the mischief which a statute is intended to cure(46). Moreover, the modern approach to statutory interpretation (a) insists that the context be considered in the first instance, not merely at some later stage when ambiguity might be thought to arise, and (b) uses "context" in its widest sense to include such things as the existing state of the law and the mischief which, by legitimate means such as those just mentioned, one may discern the statute was intended to remedy(47).
35. Using the extrinsic material I have referred to above to determine the mischief which was intended be remedied by the Act, it appears the mischief was that under the Old Act, spouses were able to seek the Minister’s discretion for the grant of Australian citizenship where they were simply a permanent resident and the spouse of an Australian citizen. As the Explanatory Memorandum states, the Act now requires those citizens to meet the same criteria as other adult applicants for citizenship. As for the discretion to waive all or part of the residence requirements for the spouse of an Australian citizen, as the Explanatory Memorandum states, those citizens only need to demonstrate a close and continuing association with Australia. Accordingly, I find that Mr Sapronov is entitled to rely on the ameliorating provisions in s 22(9) of the Act if he meets the four conditions set out in that provision.
36. Mr Bower also contended that although the Minister accepted that Mr Sapronov was the de facto spouse of an Australian citizen at the time he made the application, because his spouse, Ms Zheleznova, only became an Australian citizen on 22 April 2009, she was not an Australian citizen during the relevant period as required under the Act. With respect, I have difficulty understanding this submission.
37. The opening sentence of s 22(9) of the Act simply states that the person must be a spouse or de facto spouse of an Australian citizen at the time the person made the application. It appears the Minister accepts this provision is met. Section 22(9)(a) requires the applicant (the person) to have been a spouse or de facto spouse of the Australian citizen during the residency period which is sought to be included by reason of the section. I can see nothing in that section of the Act which requires Ms Zheleznova to have been an Australian citizen throughout the four year period preceding the application. I cannot therefore accept Mr Bower’s submission that Mr Sapronov cannot satisfy s 22(9)(a) of the Act.
38. Mr Sapronov was the de facto spouse of Ms Zheleznova for some 15 years prior to lodging a citizenship application. When he lodged his application, Ms Zheleznova was an Australian citizen. Therefore, I find that Mr Sapronov satisfies the requirements in s 22(9)(a).
39. There was no issue about s 22(9)(b) and (c) of the Act. The Minister accepted that Mr Sapronov met those requirements. The final requirement is that in s 22(9)(d) of the Act.
close and continuing association with australia
40. The Minister accepted that Mr Sapronov had established a close and continuing relationship with Australia during the four year period immediately prior to his application for Australian citizenship. Although the Minister has accepted that Mr Sapronov meets the requirements set out in s 22(9)(d) of the Act, I need to say something further about his association with Australia because, in my view, these factors also go to whether the discretion should be exercised in Mr Sapronov’s favour.
41. Mr Sapronov and his spouse, Ms Zheleznova, together with their son Demitry moved to Australia in January 2004 when Mr Sapronov took up the position of Sales and Marketing Director for WWE. Mr Sapronov has been a partner of that company since 1998, setting up the Russian office at Vladivostok. He became a director and shareholder in 2004. WWE is involved in the export of red meat from Australia to Russia, Europe and Korea. The majority of its exports are to Eastern Russia. Mr Sapronov was responsible for conducting the business of the company in Vladivostok which was the retail outlet for the exports of WWE in Russia. WWE also exports some Australian dairy products, primarily to Russia. The meats exported to Russia are essentially used in the production of smallgoods. Those meats include kangaroo meat and wild pig products. WWE’s head office is in Melbourne and it has seven fulltime employees, all of which but two, including Mr Sapronov, are Australian citizens.
42. Mr Sapronov was the person responsible for developing the Russian market. Prior to coming to Australia to take up his position in Melbourne, his work for WWE was to create new markets and business opportunities in Russia. He was able to train a successor to head the Russian office, Mr Serduk, who managed the office for many years. It was for that reason that Mr Sapronov was able to move to Australia. Despite that, his position requires him to frequently travel to Russia, Europe and Korea. Mr Sapronov testified that the company has expanded rapidly and it has between 10 and 12 Australian producers who provide it with red meat in Australia. The company currently has a turnover of between $25 and $28 million per year. The company has survived the global financial crisis despite substantial difficulties in the market for red meat.
43. Tragically, in October 2008, Mr Serduk suddenly died. That resulted in Mr Sapronov making frequent trips and spending time in Russia because of his knowledge of operations in Vladivostok. Mr Sapronov said that although he was looking for another person to train and make familiar with the Vladivostok operation, this was taking some time and much of his time since 2008 has involved marketing activities in Russia, Europe and Korea.
44. In the course of its operations, WWE has received grants from Austrade. Mr Sapronov said he would obtain a number of advantages if he were granted Australian citizenship, particularly when travelling throughout Europe. It would obviate the need for him to obtain visas which can cause delays, particularly as he travels on a Russian passport. There are also problems when he travels with his son and Ms Zheleznova because they are both Australian citizens.
45. Mr Sapronov and Ms Zheleznova jointly own the house in which they generally reside at Caulfield South, Victoria. Ms Zheleznova has studied since arrival in Australia and has successfully completed a Certificate Four in English and a Certificate Two in Information Technology. She is currently enrolled in a photography course at the Photography Studies College. She said she was hoping to start a photography business after completing her studies. Their son, Demitry, is well assimilated into Australian culture and is at high school in Brighton. Mr Sapronov and Ms Zheleznova have also purchased an investment property in Bentleigh which they plan to develop and build two townhouses in the near future.
46. Mr Sapronov and Ms Zheleznova have joint bank accounts with the Westpac Bank. Mr Sapronov has paid Australian taxes in the 2006, 2007 and 2008 financial years. Those are the only assessments which were before me in evidence. There may be others.
47. Mr Sapronov indicated that when a replacement could be found to take charge of the Vladivostok office of WWE, he would expect to spend far more time in Australia with his spouse and child. In fact, despite Mr Sapronov’s extensive travel and periods outside Australia since 2008, he nevertheless almost satisfies the general residence requirement in s 22(1) of the Act.
48. I also had in evidence a number of statements from other persons who know Mr Sapronov through WWE. In particular, the Managing Director of Australian Meats Pty Ltd (Australian Meats) has described his company as one of the leading processes of game meat in Australia. He said that Australian Meats has developed a strategic alliance with WWE to the extent that Russia has now become its largest market with a strong and stable demand for Australian game meat. He said that 80 per cent of Australian Meats’ production of game meat products is exported to Eastern Russia. This has resulted in an increase of revenue for Australian Meats of some 60 to 65 per cent over the past seven years. Australian Meats currently employs 45 workers. There are letters from other close friends who have known Mr Sapronov and Ms Zheleznova for some years and those persons speak highly of Mr Sapronov and Ms Zheleznova. They also speak of Mr Sapronov’s close and continuing association with Australia during the period since taking up residence in Melbourne.
49. The above evidence, in my opinion, clearly establishes that Mr Sapronov has a close and continuing association with Australia and that association will continue into the future. I find he clearly satisfies the requirements set out in s 22(9)(d).
EXERCISE OF DISCRETION
50. As I have found that Mr Sapronov satisfies the prerequisites for the exercise of discretion which is set out in s 22(9) of the Act, the only remaining question is whether that discretion should be exercised in Mr Sapronov’s favour. According to Mr Bower, the critical reason why the Minister should not exercise his discretion in favour of Mr Sapronov is because of ministerial policy which is set out in the ACIs. According to Mr Bower, I should apply that policy unless there are very sound reasons for not doing so. I need to make a number of points regarding that submission.
51. The stumbling block, according to Mr Bower, is the fact that the ACIs state that the discretion under s 22(9) of the Act would usually only be exercised if the applicant was overseas with their Australian spouse or de facto spouse. My reading of all of the documents in evidence before me indicates that the policy is framed on the basis of the Explanatory Memorandum and the Minister’s Second Reading Speech. In both of those documents, an example is given of a spouse accompanying an Australian citizen in the course of that citizen’s employment overseas. In my opinion, there is a very grave problem with the departmental policy regarding the discretion in s 22(9) of the Act.
52. I should begin this analysis by acknowledging what the Full Court of the Federal Court said in Drake v Minister for Immigration and Ethnic Affairs (1979) 2 ALD 60. While that court was dealing with ministerial policy and not departmental policy, as I explain below, the difference may not be significant. Bowen CJ and Deane J in their joint reasons for decision were concerned that the Migration Act 1958 offered little guidance on the criteria and rules which the Tribunal should apply when performing its task of reviewing administrative decisions. Their Honours pointed out that the Tribunal is not at large to proceed as it wishes. Rather, it is obliged to act judicially, that is, with judicial fairness and detachment. It is subject to the general constraints which the administrative officer whose decision under review was subject, namely, the power must not be exercised for the purpose other than for which it exists. Their Honours said at 69 -70:
In a matter such as the present where it was permissible for the decision-maker to take relevant government policy into account in making his decision, but where the Tribunal is not under a statutory duty to regard itself as being bound by that policy, the Tribunal is entitled to treat such government policy as a relevant factor in the determination of an application for review of that decision. It would be contrary to common sense to preclude the Tribunal, in its review of a decision, from paying any regard to what was a relevant and proper factor in the making of the decision itself. If the original decision-maker has properly paid regard to some general government policy in reaching his decision, the existence of that policy will plainly be a relevant factor for the Tribunal to take into account in reviewing the decision. On the other hand, the Tribunal is not, in the absence of specific statutory provision, entitled to abdicate its function of determining whether the decision made was, on the material before the Tribunal, the correct or preferable one in favour of a function of merely determining whether the decision made conformed with whatever the relevant general government policy might be.
53. On the remittal of Drake’s case to the Tribunal, which was then constituted by Brennan J (President), his Honour made a number of statements in his reasons for decision which have frequently been cited in cases where the exercise of ministerial discretion is required. Although they are well known to lawyers who work in this field, I shall quote some passages which are of assistance to me, standing in the shoes of the Minister, having to exercise the s 22(9) discretion.
54. Brennan J quoted from Stringer v Minister of Housing and Local Government [1970] 1 WLR 1281, where Cooke J said:
… that a Minister charged with the duty of making individual administrative decisions in a fair and impartial manner may nevertheless have a general policy in regard to matters which are relevant to those decisions, provided that the existence of that general policy does not preclude him from fairly judging all the issues which are relevant to each individual case as it comes up for decision.
55. Brennan J then went on to state the following, at 640:
There are powerful considerations in favour of a Minister adopting a guiding policy. It can serve to focus attention on the purpose which the exercise of the discretion is calculated to achieve, and thereby to assist the Minister and others to see more clearly, in each case, the desirability of exercising the power in one way or another. Decision-making is facilitated by the guidance given by an adopted policy, and the integrity of decision-making in particular cases is the better assured if decisions can be tested against such a policy. By diminishing the importance of individual predilection, an adopted policy can diminish the inconsistencies which might otherwise appear in a series of decisions, and enhance the sense of satisfaction with fairness and continuity of the administrative process.
56. However, his Honour cautioned that policy must be consistent with the statute. He said, at 640:
His discretion cannot be so truncated by a policy as to preclude consideration of the merits of specified classes of cases. A fetter of that kind would be objectionable, even though it were adopted by the Minister on his own initiative.
57. As to the Tribunal’s duty, Brennan J said, at 642-643:
The Tribunal’s duty is to make the correct or preferable decision in each case on the material before it, and the Tribunal is at liberty to adopt whatever policy it chooses, or no policy at all, in fulfilling its statutory function. In fulfilling its function, the Tribunal, being independent of the Minister, is free to adopt reasoning entirely different from the reasoning which lead to the making of the decision under review. But it is not bound to do so. Of course, the Tribunal would be in error to apply an unlawful ministerial policy to cases it decides, for an application of unlawful policy vitiates the consequential decision.
58. It has been suggested that different weight should be accorded to ministerial policy when compared with departmental policy. Brennan J, as President of the Tribunal, alluded to this distinction in Re Becker and Minister for Immigration and Ethnic Affairs (1977) 1 ALD 158. Prior to setting out the distinguishing factors between the two types of policies, his Honour made it clear that where a decision‑maker forms a policy to govern or affect the exercise of his statutory discretion, the policy must conform to law (at 162). He made it clear that a Tribunal which reviews a decision taken pursuant to an unlawful policy could not affirm the decision. His Honour also pointed out that whenever a reviewable decision involves considerations of policy, it is essential that the Tribunal be fully informed as to the policy and the reasons for it. Otherwise, the decisions of the Tribunal may intervene incongruously to disrupt the due course of administration. He then said, at 163:
A distinction will necessarily be drawn between policies of different kinds. Some policies are clearly made or settled at the political level, others at the departmental level. …
The difference between the factors to be taken into account in the two kinds of policy provides one ground of distinction between them; the difference in parliamentary opportunity to review the two kinds of policy provides another. Some policies are basic, and are intended to provide the guideline for the general exercise of the power, other policies or procedural practices are intended to implement a basic policy. Different considerations may apply to the review of each kind of policy, and more substantial reasons may have to be shown why basic policies — which might frequently be forged at the political level — should be reviewed. There may, of course, be particular cases where the indefinable yet cogent demands of justice require a review of basic or even political policies, but those should be exceptional cases and this is not one of them.
As I understand his Honour, where the Tribunal is dealing with a departmental policy which is intended as a procedural practice guide to implement basic policy, it would require different considerations to that which may apply to a ministerial policy. That of course does not mean that it should be given different weight, but rather that different considerations may apply when dealing with departmental guidelines.
59. In fact, Besanko J in Hneidi v Minister for Immigration and Citizenship [2009] FCA 983 (2 September 2009) was required to deal with the ACIs and he referred to the introductory paragraph to the ACIs which I have quoted above. Besanko J then simply stated that the ACIs were a form of departmental policy being approved by a senior departmental officer, and not the Minister or Parliamentary Secretary.
60. When Mr Hneidi appealed the decision of Besanko J to the Full Court of the Federal Court (Hneidi v Minister for Immigration and Citizenship (2010) 114 ALD 26, that Court) Spender, Emmett and Jacobson JJ dealt with the distinction between ministerial policy and departmental policy. The first thing the Court noted was that the Full Court in Drake did not draw any distinction between departmental policy and ministerial policy. That was probably for the good reason that the Full Court in Drake was dealing only with ministerial policy. However, the Full Court concluded by saying, at 33:
[58] It is true that a number of authorities to which the learned primary judge referred may be thought to be authority for the proposition that “great weight” ought to be given by the Tribunal to policies developed in the political arena: see Re Aston and Secretary, Dept of Primary Industry (1985) 8 ALD 366 at 380; Federal Commissioner of Taxation v Swift (1989) 18 ALD 679 at 692 (Swift). But that is not to say that lesser weight must be given, regardless of the factual circumstances, to statements of departmental policy.
As I understand that statement, lesser weight may be given to departmental policy, depending on factual circumstances, but that is not necessarily so.
61. The first point to note about the ACIs is that the introduction states they provide guidance in relation to the interpretation of the Act. Of course, while that may be so as far as departmental officers are concerned, I should make it clear that I understand the Tribunal must not use guidelines or departmental policy to assist in the interpretation of the Act. As Moore J said in Port of Brisbane Corporation v Deputy Commissioner of Taxation (2004) 81 ALD 549, at 550:
[26] The decision of Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634 concerned a deportation order under the Migration Act 1958 (Cth). The then president of the tribunal, Brennan J, discussed the role of ministerial policy in the exercise of the discretionary power to deport. His Honour concluded that while the tribunal was not bound to apply that policy, it should only depart from it cautiously and sparingly, particularly if parliament had in fact scrutinised and approved the policy. That case does not suggest (nor does any other case of which I am aware) that guidelines or policy documents which express a view about the scope or meaning of legislation provide a tool or aid in construing the legislation.
His Honour found that in relying on a bulletin published by the Australian Taxation Officer, the Tribunal erred in law when it used that bulletin in aid of interpreting a taxation statute.
62. Section 22(9) of the Act was introduced for the purpose of requiring spouses of Australian citizens to meet the same criteria as other adult applicants for citizenship. Adult applicants were now required to qualify in their own right rather than relying on only a spousal relationship with an Australian citizen which was sufficient under s 13(9)(c) of the Old Act. It also contained an ameliorating provision where the spouse of an Australian citizen was having difficulty in meeting the residence requirements. A proper reading of s 22(9) leads to the conclusion that it is structured as is stated by the Minister in his Second Reading Speech and as is set out in the Explanatory Memorandum. There is nothing in that section at all which requires it to be read down in the way in which the ACIs suggest.
63. In my opinion, the way in which the policy is described in the ACIs clearly imposes a fetter on the exercise of the general discretion provided for in that section. The word fetter, when used as a verb, is defined in the Shorter Oxford English Dictionary as: to impose restraint upon; to confine, to impede. To state, as the ACIs do, that the discretion would usually only be exercised if the applicant, which is described as the person in s 22(9), was overseas with their Australian citizen spouse or de facto spouse is plainly to impose a restraint upon or to confine or impede the operation of that section. The use of the discordant expression, usually only, underscores the unhappy way in which the policy is expressed.
64. It seems to me that the Department has fixed on the example set out in the Explanatory Memorandum, and the reference to it by the then Minister in the Second Reading Speech as highlighting what was intended by s 22(9). In my opinion, this is incorrect. Because it is expressly stated to be an example of where the section might operate, the necessary implication is that the section will have operation in other circumstances. There is not so much as a suggestion that it should only or usually operate in those circumstances. Furthermore, a plain reading of the section in the context of the Act makes it clear that s 22(9) is not confined to the accompanying spouse example. Nor is there any other reason why the discretion would usually only be exercised in the accompanying spouse situation. If there are other circumstances in which applicants find themselves where they are able to satisfy the prerequisites for the exercise of the discretion in s 22(9), then, unless there is some other reason why the discretion ought not be exercised, it should be. That, in my opinion, would give effect to what was intended by the section.
65. In Mr Sapronov’s case, other than the difficulty he has experienced in meeting the presence in Australia requirements, particularly in the 12 months preceding his application for Australian citizenship, there is nothing which causes me to form the view that the Minister’s discretion should not be exercised in his favour. In fact, when one examines Mr Sapronov’s contribution to this country’s economy, as well as the fact that his son and Ms Zheleznova are also Australian citizens and have resided here since 2004, I find that the discretion should be exercised and the period he was outside Australia between 2006 and 27 May 2009 should be regarded as a period in which he was present in Australia as a permanent resident. It follows that I find Mr Sapronov satisfies the general residence requirement to be eligible to become an Australian citizen in accordance with s 21(2)(c) of the Act.
CONCLUSION
66. Because Mr Sapronov was unable to meet the general residence requirement set out in s 22 of the Act, his application for Australian citizenship was rejected by the Minister. However, Mr Sapronov contended that s 22(9) should be applied to his circumstances.
67. I have found that Mr Sapronov satisfies the prerequisites for the exercise of the discretion provided in s 22(9) of the Act. I have also found that the discretion should be exercised in his favour. In exercising that discretion, I have found that the period of time that Mr Sapronov was not present in Australia while he was a permanent resident should be regarded as time in which he was present in Australia in accordance with s 22(9) of the Act. Therefore, I have found that Mr Sapronov meets the general eligibility requirement which is set out in s 21(2)(c) of the Act.
68. There was no dispute that Mr Sapronov met the requirements set out in s 21(2)(b) and (g) of the Act. Section 20(2)(d), (e) and (f) will only be satisfied after Mr Sapronov has successfully completed the test approved in a determination under s 23A of the Act. The only remaining requirement is that set out in section 21(2)(h) which refers to the applicant being of good character at the time of the Minister’s decision on the application. While I have no reason to doubt Mr Sapronov’s good character on the evidence before me, that is not a decision which I can make at this time.
69. Accordingly, I find that the Minister’s decision made on 12 January 2010 was not the preferable decision. I set aside that decision and remit the matter to the Minister to determine Mr Sapronov’s eligibility to become an Australian citizen taking into account I have found, in exercising the discretion provided for in s 22(9) of the Act, that Mr Sapronov satisfies the general residence requirement in s 22(1) of the Act.
I certify that the sixty-nine [69] preceding paragraphs are a true copy of the reasons for the decision herein of
Mr Egon Fice, Senior MemberSigned: .........[sgd] Elise Montalto............................................
AssociateDate/s of Hearing 12 November 2010
Date of Decision 25 February 2011
Counsel for the Applicant L. De Ferrari
Solicitor for the Applicant H. Tran, AJH Lawyers
Solicitor for the Respondent R. Bower, Clayton Utz
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