Re Wolstenholme and Minister for Immigration and Citizenship - [2010] AATA 315

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2010] AATA 315

ADMINISTRATIVE APPEALS TRIBUNAL )

) No: 2009/4872

GENERAL ADMINISTRATIVE DIVISION )
ReRobert Paul Wolstenholme

Applicant

AndMinister for Immigration and Citizenship

Respondent

DECISION

TribunalMr RP Handley, Deputy President
Date30 April 2010
PlaceSydney
DecisionThe decision under review is set aside and a decision substituted that Mr Wolstenholme’s application for Australian citizenship is approved.
....................[sgd]......................
Mr RP Handley
Deputy President

CATCHWORDS

IMMIGRATION & CITZENSHIP - refusal to grant citizenship by conferral – applicant married to Australian citizen - applicant does not meet residence requirements – application of Australian Citizenship Instructions – decision under review set aside

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RELEVANT ACTS

Australian Citizenship Act 2007: ss 21,22A, 22B, 23, 24

Australian Citizenship (Transitionals and Consequentials) Act 2007: Sch 3, item 5B

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CITATIONS

Hneidi v Minister for Immigration and Citizenship [2010] FCAFC 20

Drake v Minister for Immigration and Ethnic Affairs (1979) 2 ALD 60; (1979) 24 ALR 577; (1979) 46 FLR 409

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

Re Kanwaljit Singh and Minister for Immigration and Citizenship [2010] AATA 103

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OTHER AUTHORITIES

Australian Citizenship Instructions, Chapter 5

Australian Citizenship Bill 2005 Explanatory Memorandum

Australian Citizenship Bill 2005 Second Reading Speech, 9 November 2005

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REASONS FOR DECISION

30 April 2010

Mr RP Handley, Deputy President

Robert Paul Wostenholme has applied to the Tribunal for a review of a decision of a delegate of the Minister of Immigration and Citizenship to refuse his application for Australian citizenship by conferral on the ground that he did not meet the residence requirements. The issue for the Tribunal is whether this is the correct or preferable decision.

Background

Mr Wostenholme was born in 1962 in the United Kingdom where he is a citizen. He and his wife, Karen Wolstenholme, were married in 1993. On 17 November 2004, he entered Australia with a Skilled – Designated Area Sponsored (permanent) (subclass 139) visa together with his wife, who was granted a secondary visa. On 2 July 2007, Mrs Wolstenholme was granted Australian citizenship by conferral. They reside at a jointly owned property at Valla, NSW.
On 22 January 2009, Mr Wostenholme lodged an Application for Australian Citizenship by Conferral, which was refused by a delegate of the Minister on 10 August 2009.

the legislative framework and policy

Section 21(1) of the Australian Citizenship Act 2007 (the Act) provides that a person may make an application to the Minister to become an Australian citizen. Section 24(1) states that if a person makes such an application, “the Minister must, by writing, approve or refuse to approve the person becoming an Australian citizen”. Section 21(2) states the general eligibility requirements:
(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 general residence requirement (see section 22) or the special residence requirement (see section 22A or 22B), 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.

Thus, s 21(2)(c) requires that the applicant must either satisfy the residency requirement set out in ss 22, 22A or 22B or have completed the relevant defence service described in s 23. However, because Mr Wostenholme was a permanent resident at the time of the commencement of the Australian Citizenship (Transitionals and Consequentials) Act 2007 (the Transition Act) on 1 July 2007 and lodged his application prior to 1 July 2010, the residency requirement set out in s 22(1) of the Act does not apply to him and, instead, he has to satisfy the residency requirement set out in item 5B of Schedule 3 of the Transition Act:
5BCitizenship by conferral - persons who are permanent residents at commencement
(1)This item applies if:
(a)a person is a permanent resident (worked out under the old Act) immediately before the commencement day; and
(b)the person makes an application under subsection 21(1) of the new Act within the period of 3 years beginning on the commencement day.
(2)In applying section 22 of the new Act to an application covered by subitem (1), subsections 22(1) to (2), (4A) and (5A) of the new Act do not apply and the following subsections of section 22 of the new Act apply instead:
(1)For the purposes of section 21, a person satisfies the general residence requirement if the person has been present in Australia as a permanent resident for:
(a) a total period of at least 1 year in the period of 2 years before the day the person made the application; and
(b) a total period of at least 2 years in the period of 5 years before that day.
…

Section 22(9) and (10) of the Act state:
(9)If the person is the spouse, de facto partner or surviving spouse or de facto partner of an Australian citizen at the time the person made the application, the Minister may treat a period as one in which the person was present in Australia as a permanent resident if:
(a)the person was a spouse or de facto partner of that Australian citizen during that period; and
(b)the person was not present in Australia during that period; and
(c)the person was a permanent resident during that period; and
(d)the Minister is satisfied that the person had a close and continuing association with Australia during that period.
(10) In subsection (9):
surviving spouse or de facto partner of a person who has died means a person who was the person's spouse or de facto partner immediately before the person died and who has not later become the spouse or de facto partner of another person.

The Government has developed policy in the form of the Australian Citizenship Instructions (the Instructions) to provide guidance to decision-makers. The introduction to the Instructions states that their role 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.

The Instructions provide in respect of s 22(9):
Policy is that this discretion would usually only be exercised if the applicant was overseas with their Australian citizenship spouse or de facto partner.

There is no dispute about the time Mr Wolstenholme has spent in Australia in the period prior to lodging his application for citizenship on 22 January 2009. The Department of Immigration and Citizenship’s records show that he spent 827 days in Australia in the previous five years and 274 days in Australia in the previous two years. He therefore does not meet the general residence requirement in item 5B(2) of Schedule 3 of the Transition Act.
However, because (1) from 2 July 2007 his wife was an Australian citizen and therefore on 22 January 2009 when Mr Wolstenholme lodged his application for citizenship, (2) he was a permanent resident in the relevant period, and (3) the respondent is satisfied that he had a close and continuing relationship with Australia during these periods (see the delegate’s decision of 10 August 2009), s 22(9) applies and the Minister has a discretion to treat a period from 2 July 2007 during which Mr Wolstenholme was not present in Australia as one in which he was present in Australia as a permanent resident.
The issue for the Tribunal, therefore, is whether the Minister’s discretion in s 22(9) should be exercised in Mr Wolstenholme’s case.

Mr Wolstenholme’s Evidence

Mr Wolstenholme gave oral evidence at the hearing. He is a professional engineer who, after graduating from Newcastle University in the UK, served as an officer in the British Army in the Royal Engineers from 1984 to 1994. Since leaving the Army, he has engaged in rehabilitation and reconstruction work in post natural disaster and post conflict zones throughout the world. These have included Montserrat (following the volcanic eruptions), Kosovo and Bosnia (after the Balkans conflict), Mozambique (after disastrous flooding), Palestine (arising from the conflict with Israel), Banda Aceh (following the tsunami), Pakistan (arising from the conflict with the Taliban), Ethiopia (upgrading health centres for the treatment of HIV and TB), and Afghanistan (arising from the conflict with the Taliban). Mr Wolstenholme has been employed as an independent contractor in this work by a variety of agencies including the UN, and the US, UK and Australian Governments. He has a high-level security clearance to enable him to undertake this work.
Mr Wolstenholme said that because he is generally employed as an independent contractor on short-term contracts, no provision is made for him to be accompanied by dependants. Commonly, he works at least a six day week and long days, and he lives in very basic accommodation, often with poor sanitation and hygiene, where security is a major concern. It would not be appropriate for him to be accompanied by his wife and this would not be permitted by his employer.
Mr Wolstenholme said his motivation for undertaking this kind of work is his belief that those of us living in developed countries are privileged when compared with those living in the third world. He wants “to give something back” and use his skills and education to assist others in achieving a better life.
Mr Wolstenholme described the nature of the conditions in which he has served in the past 10 years. Most recently, he has returned after completing a nine-month project in Afghanistan where he worked as an infrastructure adviser to the military in Helmand province. The security situation there is very dangerous and he lived in a military camp. He was not allowed to leave the camp except in a two‑vehicle convoy, and he was required to wear body armour for his own protection. He provided a photograph of him taken by a colleague near an airfield they were upgrading, showing the accompanying close protection vehicles. Dependants were not allowed. Even in Kabul, Embassy staff are not permitted to have accompanying dependants and the security situation in Helmand province is worse. He will probably be returning to Afghanistan in the third week in April when current negotiations for his re-engagement are concluded.
Prior to Afghanistan, in the two year period prior to lodging his citizenship application, Mr Wolstenholme served for over a year in Ethiopia (30 October 2006 to 1 December 2008) working on a US Government project upgrading health centres to enable the better treatment of HIV and TB. Although based in the capital, Addis Ababa, his work required that he travel to six regions of Ethiopia. The accommodation varied from very basic (a bed and sometimes hot running water) to more reasonable hotel accommodation (equivalent to a one‑ or two‑star Western-style hotel). In relative terms, these were some of the best conditions in which he has worked and Ethiopia was safer than other places where he has worked. However, because of security concerns, he was only permitted to travel in safer parts of the country.
Mr Wolstenholme said he would not have wanted his wife to accompany him because he was constantly working – “work came first” – and because of the health and hygiene situation. He said that while diplomats in Ethiopia are permitted to have accompanying dependants, he was engaged as an individual contractor on a short-term contract and there was no provision for dependants. In his opinion, it was not appropriate for his wife to have travelled with him and, generally, she would not be able to put up with the conditions he does. She would not want to and, moreover, she would not wish to leave their farm and her animals in Australia where she has a healthy standard of living. Members of both his and his wife’s families have gone overseas to work during the course of their careers and so they are familiar with this way of life. The only time his wife has joined him overseas was when, in 2000, he was undertaking emergency relief after the devastating floods in Mozambique, and he was entitled to a return ticket to the UK for a two‑week holiday. He cashed in his UK return ticket to enable her to join him for a two‑week holiday in South Africa.
Mr Wolstenholme said he was paid US$550 per day – the short-term consultancy rate – for this work under the terms of his US Government contract. He was exempted from paying tax on these overseas earnings by the Australian Taxation Office (ATO). Ultimately, he spent 380 working days in Ethiopia.
Mr Wolstenholme said that after working in Ethiopia, he worked in Gaza for about two months (December 2008 to January 2009) engaged by the European Union to assess damage there caused by the conflict between Israel and Palestine. “It was very dangerous”.
Mr Wolstenholme also described a short-term deployment of nine weeks in Pakistan for the UK Government where, although based in Islamabad, he travelled to Kashmir and the (former) North‑West Frontier Province adjacent to the border with Afghanistan. He was only allowed to travel if accompanied by an armed escort provided by the British Embassy and his office and living quarters were under 24‑hour guard. Dependants were not permitted under the terms of his consultancy, and he worked seven days a week and long hours. He would not have even considered having his wife with him there because of the security situation.
Mr Wolstenholme described his work in Banda Aceh where, after the Indian Ocean tsunami of 26 December 2004, “everything was destroyed” and he wanted to help. He was engaged by the charity RedR (Registered Engineers for Disaster Relief) Australia as a consultant, initially for a period of three months but later extended to six months (from 30 July 2005 to 7 February 2006), to supervise reconstruction along the western coast of Sumatra, funded by the UN High Commissioner for Refugees (UNHCR) and AusAID, the Australian Government’s overseas aid program. For this work, he was paid a salary at an annual rate of $55,000 calculated on a daily basis for each day of the contract period. Thus, he would have been paid about half that amount for the six months’ work. Mr Wolstenholme said he spent 60 per cent of the time living in a tent (he provided a photograph) with no sanitation. It was “totally unviable for his wife to accompany him”.
Mr Wolstenholme also described his work in Kosovo managing the repair and reconstruction of court and penitentiary facilities, in Mozambique after the devastating floods of 2000, in Bosnia managing the upgrading of buildings and communication facilities, and in Palestine where he served in the war zone in constant danger. In Palestine, he was subject to harassment by the Israeli military, by whom he was shot at and illegally detained and by whom one of his colleagues was killed (see Press Release from the UN Relief and Works Agency (UNWRA) dated 23 May 2004). He was also subject to threats from Palestinian armed militia. Mr Wolstenholme said this period (9 November 2002 to 2 September 2004) was very stressful.
Mr Wolstenholme provided a copy of a photograph taken of him with President Yasser Arafat, when the President thanked him personally for his work in Palestine. Mr Wolstenholme also provided copies of other presentations recognising his work and spoke of other expressions of gratitude he has received. His recent work in Afghanistan has been assessed as outstanding.
Mr Wolstenholme said he has maintained a high level of security clearance necessary to undertake such projects. Without this, he would be precluded from undertaking certain work. If he allows his present clearance to lapse, it will take some time to renew. It has taken a long time to establish his reputation, and work now finds him. If suitable opportunities arise, he will take them. He intends to continue with the work he has undertaken in recent years until he does not need to do it anymore once his and his wife’s farm is generating a profit. This will probably take another seven years. Being an Australian citizen would allow him to undertake work for AusAID. Such work will require a security clearance, which he cannot obtain unless an Australian citizen.
Mr Wolstenholme said traditional construction companies in Australia consider him an oddity because of his unusual skills and experience and seem to be “scared” by what he does. However, he is registered with six or seven principal development practitioners in Australia who undertake developmental work. He has been nominated in two tenders for work with development‑based organisations and went through a selection process before being nominated. Neither tender was successful.
Mr Wolstenholme said that on coming to Australia, his intention was to undertake some agricultural activity and use his skills as appropriate. After entering Australia on 17 November 2004, he first went overseas to Banda Aceh on 30 July 2005. He did this in the aftermath of the tsunami and only accepted the post about a week before he left. At that time, he was undertaking a TAFE diploma in agriculture, of which he had completed about 40 per cent, and was working on a colleague’s macadamia farm to gain experience. Ultimately, he did not finish the diploma because he felt he had learned what he needed to know.
Mr and Mrs Wolstenholme jointly own their farm at Valla. Mr Wolstenholme said they invested the proceeds from the sale of their house in England in the property which they purchased in late 2006. The property comprises 100 acres which they are developing as a macadamia farm. It is likely to take eight or nine years from commencement until the farm begins to show a profit. Thus, the investment is a long‑term one which they regard as their collective pension plan.
Mr Wolstenholme said he is registered in Australia for tax purposes and his only taxable income is in Australia. However, his primary income is from his work overseas, which is paid into his and his wife’s joint account to support them both. The accounts for the farm are in his wife’s name on the advice of their accountant. She manages the farm as well as working as a freelance riding instructor. When he is at home, essentially he is a farm labourer – erecting fences, planting trees, cutting the grass and undertaking any physical work necessary to support the development of the business. Mr Wolstenholme said Australia and the farm are his home and he intends to continue investing in the farm.
Mr Wolstenholme said his wife works on the farm most days of the week. There is so much to do, and it always requires somebody to be doing something. To his recollection, they have never both been away from the farm for more than two or three days when they have attended dog shows. In the two years prior to his citizenship application, he did not travel anywhere except to Ethiopia and to the UK where he went for a security vetting interview and to attend a course. His wife did not accompany him.

Mrs Wolstenholme’s Evidence

Mrs Wolstenholme also gave oral evidence at the hearing. She works as a riding instructor three or four days a week (including two days unpaid work for the pony club) from which she earns on average about $150 per week. When she finishes her work as a riding instructor, she works on the farm. Mrs Wolstenholme has only been absent from the farm for two weeks since they purchased it and her husband was there during her absence. When her husband is away overseas, she remains and attends to the farm.
Mrs Wolstenholme described her husband’s work as a consultant in post disaster/war reconstruction. He has done this work for about 16 years since he left the Army. When they came to Australia, whether he would continue with such work was left open. Mr Wolstenholme knows how to deal with difficult situations and thrives on it. She has never accompanied him on such work and his employers would not encourage her. Even if this was permitted, and if she did accompany him, she would probably be confined to secure compounds which she would not be able to leave without someone to protect her. She never considered accompanying her husband to Ethiopia and his employers did not give her this option. There is “no way” she would have accompanied him on his recent assignment in Afghanistan. While there, he lived in a “Portacabin” and could not leave the compound without a protection team. When Mr Wolstenholme was in Mozambique in 2000, she went to South Africa for two weeks to have a holiday with him, but was not allowed to visit him in Mozambique because of the health situation there.
Mrs Wolstenholme said she and her husband jointly own the farm where they live, on which they are developing a macadamia plantation that she manages. When Mr Wolstenholme is at home, he “works like a Trojan”, for example, planting 1,200 trees over Christmas. They intend to continue developing the farm and have no intention of ceasing to operate it or selling it. Mrs Wolstenholme said the only family she has in Australia is a cousin in Melbourne whom she speaks to on the phone about once a month and sees about twice a year when her cousin is en route to the Gold Coast.

submissions

As stated above, the issue in this case is whether the Minister’s discretion in s 22(9) of the Act should be issued in Mr Wolstenholme’s case. The representatives of the parties discussed relevant authorities and made submissions to the Tribunal on its treatment of policy – in this case, the Instructions. Mr Reynolds, for Mr Wolstenholme, submitted that the Instructions provide guidance on how to exercise the discretion in s 22(9) but that such policy should not be applied inflexibly. Section 22(9) confers a broad discretion on the decision-maker and allows a range of factors to be taken into consideration.
Ms Weston, for the respondent, submitted that the policy set out in the Instructions reflects the intention of Parliament in passing the Act and referred to passages from the Explanatory Memorandum for the Australian Citizenship Bill 2005 and from the Minister’s Second Reading Speech on the Bill on 9 November 2005 in which reference was made to the exception from the residence requirements where an accompanying spouse of an Australian citizen working overseas has difficulty in meeting the residence requirements for Australian citizenship by conferral. Mr Reynolds submitted that neither the Explanatory Memorandum nor Second Reading Speech could be used to fetter the discretion in s 22(9). There is no ambiguity in the meaning of the legislation requiring reference to extrinsic material for the purpose of interpreting that meaning.
Ms Weston referred to the use of the word ‘usually’ in the Instructions, noting that the circumstances in Mr Wolstenholme’s case are the reverse of the situation identified in s 22(9)(a)of the Act. There it is the person seeking citizenship who may benefit from the exercise of the discretion when accompanying an Australian citizen spouse or de facto partner who is not present in Australia during the relevant period of required residency. Mr Wolstenholme was not accompanying an Australian citizen spouse overseas. He went overseas to work of his own volition. Ms Weston noted that pursuant to subitem 5B(2) of Schedule 3 of the Transition Act, it was only the two‑year period prior to Mr Wolstenholme’s citizenship application that is relevant here since it is accepted that he meets the residency requirement in respect of the five years before lodgement of his application. Thus, she submitted, it is only the period he spent in Ethiopia in the two years before lodgement that is relevant here and not the work he undertook in other countries.
Ms Weston noted that Mr Wolstenholme acknowledged that conditions in Ethiopia were not as bad as those in other countries in which he has worked, and contended that Mrs Wolstenholme did not want to go to Ethiopia with her husband, preferring to remain in Australia and work on their farm. She submitted that the facts are similar to those in the recent decision in Re Kanwaljit Singh and Minister for Immigration and Citizenship [2010] AATA 103 (Singh), and that decision should be followed.
Mr Reynolds submitted that the decision in Singh should be distinguished on its facts. In that case, the applicant made a deliberate decision to establish a business in Dubai as a money‑making venture. In Mr Wolstenholme’s case, his motivation is different and although he is paid for his work, this is not the principal motivation. Moreover, Mrs Wolstenholme’s reasons for not wishing to accompany her husband and remain in Australia to manage their farm, even if she had the option of accompanying him, are understandable given the unhygienic and dangerous locations in which her husband worked.
Mr Reynolds said the discretion in s 22(9) permits a broad range of factors to be considered. Relevant matters here are the nature of Mr Wolstenholme’s humanitarian work, which is random in nature - for example, his work in Banda Aceh ‑the fact that financial considerations are not his principal motivation, the fact that his contracts of engagement do not provide for an accompanying partner/spouse and that, even if this was allowed, this is not the practice with such contracts, the fact that his wife does not want to accompany him because of health and security concerns, the strength of his connections with Australia – in particular, the farm that he and his wife jointly own and their long‑term commitment to and work in developing it ‑ his frequent returning to Australia, and that, in relation to subitem 5B(2), he satisfies (b), the two‑years‑in‑five test, and is only 91 days short of satisfying (a), the one‑year‑in‑two test.
Ms Weston submitted that if the Tribunal determines that the discretion in s 22(9) should be exercised in Mr Wolstenholme’s favour, then the matter should be remitted to the Department to consider whether he satisfies the other requirements of s 21(2) and, in particular, whether he “is likely to reside, or to continue to reside, in Australia or to maintain a close and continuing relationship with Australia if the application were to be approved” (g), and whether he was “of good character at the time of the Minister’s decision on the application” (h).
Mr Reynolds said the applicant’s preference is for the Tribunal to determine the application for citizenship as a whole. The delegate of the Minister found and there is no dispute that Mr Wolstenholme has “close and continuing ties to Australia” during the relevant time. Mr Wolstenholme’s evidence is that he intends to stay in Australia with his wife in the long term and their evidence is that they are developing their farm for this purpose. Mr Wolstenholme is also resident in Australia for tax purposes. With regard to his character, there is relevant evidence before the Tribunal as to his character. He is not known to police, does not have a criminal record, and holds a high‑level security clearance. There is nothing to suggest that Mr Wolstenholme is of anything other than good character.

Discussion

In making its determination, the Tribunal should have regard to the Instructions, and in particular the policy set out above, that the discretion in s 22(9) of the Act “would usually only be exercised if the applicant was overseas with their Australian citizenship spouse or de facto partner”.
The application of government policy such as the Instructions by decision-makers has been the subject of consideration in a number of cases. The seminal authority on this matter, the Full Federal Court decision in Drake v Minister for Immigration and Ethnic Affairs (1979) 24 ALR 577 (Drake), and other relevant authorities such as Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634, were recently reviewed by the Full Federal Court in Hneidi v Minister for Immigration and Citizenship [2010] FCAFC 20 (Hneidi). The Court, referring to the judgment of Bowen CJ and Deane J in Drake at 590-591, stated:
41.For present purposes, four relevant propositions emerge from their Honours’ consideration of that question. The first is that the decision-maker is entitled, in the absence of specifically defined criteria for the exercise of the discretion, to take into account "government policy". Thus, where the Tribunal is not under a statutory duty to regard itself as bound by the policy, it is entitled to treat the policy as a relevant consideration.
42.Second, in the absence of a specific statutory provision (which would no doubt be unusual) the Tribunal is not entitled to abdicate its function of determining whether the decision under review was, on the material before the Tribunal, the correct or preferable one, to a more passive function of determining whether the decision conformed to the relevant policy.
43.Third, it is not desirable to frame a general statement of the part which government policy should ordinarily play in the determinations of the Tribunal. That is a matter for the Tribunal to determine in the context of the particular case, informed by considerations of the desirability of consistency of administrative decisions but balanced against the ideal of justice in the individual case.
44.Fourth, the borderline between cases in which the Tribunal has abdicated its functions to those of an unthinking application of "government or Ministerial policy" to the facts may sometimes be blurred. But where the Tribunal considers that the correct or preferable decision results from the application of such a policy, it should make it clear that:
“... it has considered the propriety of the particular policy and expressly indicates the considerations which have led it to that conclusion”

Thus, the Tribunal, while having regard to relevant policy and the desirability of consistency in administrative decision-making, must not abdicate its function of determining whether the decision under review was, on the material before it, the correct or preferable one having regard to the justice of the outcome in the individual case.
There is no dispute that Mr Wolstenholme was not overseas with his wife at the relevant times and so does not satisfy the usual policy requirement for the exercise of the s 22(9) discretion. What then is the correct or preferable decision having regard on the one hand to the desirability for consistency in decision-making and on the other to achieving a just outcome on the particular facts of Mr Wolstenholme’s case?
In my view, this case should be distinguished from that in Singh which involved the applicant establishing and developing a business in the United Arab Emirates. I am satisfied from Mr Wolstenholme’s evidence that his motive in undertaking rehabilitation and reconstruction work in post‑natural disaster and post-conflict zones around the world is primarily a humanitarian one. He is highly regarded for such work. By their nature, such situations arise randomly and Mr Wolstenholme has responded and utilised his professional expertise where appropriate. Whilst the particular period in issue is, by virtue of subitem 5B(2), the period of two years before he made his citizenship application on 22 January 2009, the other consultancy work Mr Wolstenholme has undertaken in the period before this is relevant in establishing the motive for his conduct, the nature of his work and the terms under which people are engaged in such work.
During the two years prior to 22 January 2009, Mr Wolstenholme was engaged for a period of 13 months (from 30 October 2006 to 1 December 2008) on a US Government project in Ethiopia upgrading health centres for the treatment of HIV and TB. While the conditions in which he worked were, in relative terms, better than those prevailing in other situations in which he has been engaged in rehabilitation and reconstruction work, I am satisfied from Mr Wolstenholme’s evidence that under the terms of his engagement, no provision was made for accompanying dependants, that this was not appropriate given the nature of his work, and that anyone considering accompanying a person undertaking such work would have valid health and security concerns.
Given that Mr Wolstenholme had been undertaking similar work over the 12 years prior to this engagement, I accept that he and his wife had reached what appears to have amounted to an unspoken understanding that she would not accompany him on such work for similar reasons to those stated above in relation to his Ethiopian engagement. I also accept that given the nature of the business in which Mr and Mrs Wolstenholme had latterly become involved in Australia, Mrs Wolstenholme preferred to remain in Australia in order to manage the ongoing development of their farm and for lifestyle reasons.
In terms of the exercise of the s 22(9) discretion, I note that Mr Wolstenholme is 91 days short of the one year required to satisfy subparagraph (a) in subitem 5B(2), and that his work, in which I accept his evidence that he is held in high regard, involves responding to random situations where humanitarian assistance is required. In my view, the Australian community would applaud such work and Australia’s reputation in the international community would be enhanced by its citizens undertaking such work.
As I have stated above, I accept that Mr Wolstenholme’s motivation in undertaking such work is primarily humanitarian and that no provision is made for accompanying spouses or partners. I am also satisfied from Mr and Mrs Wolstenholme’s evidence that Mr Wolstenholme has a long term commitment to Australia and that he regards Australia as his home, returning here after completing overseas engagements.
In conclusion, in my view, having regard to the above matters, this is an unusual case where, because of its particular facts, the s 22(9) discretion should be exercised in Mr Wolstenholme’s favour so that he satisfies the residency requirements for citizenship arising from s 21(2)(c).

Other Eligibility Requirements for Citizenship

Because the focus in this matter has been on whether Mr Wolstenholme satisfies the residency requirements arising from s 21(2)(c), the other eligibility requirements in s 21(2) have largely been ignored. However, of the other requirements for Australian citizenship, it appears that possibly only two – s 21(2)(g) and (h) – remain in issue: in particular, Mr Wolstenholme appears to satisfy s 21(2)(a), (b), (d), (e) and (f). My view, therefore, was that it was appropriate to invite written submissions from the parties on whether Mr Wolstenholme satisfies s 21(2)(g) and (h) so that if I exercised the s 22(9) discretion in his favour, I could then, standing in the shoes of the original decision-maker, decide whether to exercise the Minister’s power under s 24(1) to approve or refuse to approve Mr Wolstenholme becoming an Australian citizen.
The parties have now provided me with written submissions on these additional matters in response to my invitation.
First, I note that in her decision dated 10 August 2009, the delegate said she was satisfied that during the times spent offshore, Mr Wolstenholme “has close and continuing ties to Australia”. While, this finding appears to have been made in relation to s 22(9)(d), the Minister, nevertheless, accepts that s 21(2)(g) is satisfied. Thus, the only outstanding issue is whether Mr Wolstenholme satisfies s 21(2)(h), that is, whether he is of good character.
Ms Weston referred the Tribunal to the Instructions which state:
the words ‘good character’ should be taken to be used in their ordinary sense, namely, a reference to the enduring moral qualities of a person, and not to the good standing, fame or reputation of the person in the community. The former is an objective assessment apt to be proved as a fact while the latter is a review [of] subjective public opinion.

The Instructions state further:
An applicant may be presumed to be of good character unless there is evidence to the contrary. In most cases, such evidence would be in the form of a serious criminal record. However, general conduct and associations may also be relevant.

The Instructions also state that applicants who have spent 12 months or more overseas after the grant of a permanent visa should be asked to provide overseas penal clearance certificates.
Ms Weston submitted that if the Tribunal finds that Mr Wolstenholme satisfies the residence requirements by reason of s 22(9) of the Act, the matter should be remitted to the Minister to determine whether Mr Wolstenholme satisfies the remaining eligibility criteria. She said there is no evidence before the Tribunal going to the question whether he has a criminal record in Australia.
Mr Reynolds submitted that the evidence before the Tribunal is sufficient to establish that Mr Wolstenholme is of good character. Mr Wolstenholme has provided overseas certificates showing that he has not been convicted of offences while working overseas, together with evidence of his international humanitarian aid work and of awards/commendations for such work, and also evidence as to his farming enterprise in Australia. The evidence overwhelmingly suggests that Mr Wolstenholme is of good character. The Minister has access to online police checks for Australia to which the Tribunal does not have access, but has not adduced any evidence going against Mr Wolstenholme’s character. In all the circumstances, the correct or preferable decision is that the issue of character should be determined in Mr Wolstenholme’s favour.
I have reviewed the documentation submitted by Mr Wolstenholme with his application for citizenship and note that it includes police/criminal record certificates from Indonesia, Ethiopia, and Pakistan. He also provided evidence at the hearing of commendations for his work in Palestine and Montserrat and spoke of an assessment of his recent work in Afghanistan as being outstanding. He has a high-level security clearance issued by the British Government enabling him to undertake rehabilitation/reconstruction work in conflict zones around the world.
In my view, the evidence before the Tribunal clearly establishes that Mr Wolstenholme is of good character and has been of good character at all relevant times, thereby satisfying s 21(2)(h). Thus, I find that Mr Wolstenholme satisfies the eligibility requirements in s 21(2) of the Act and the correct or preferable decision is that his application to become an Australian citizen should be approved.

Decision

The decision under review is set aside and a decision substituted that Mr Wolstenholme’s application for Australian citizenship is approved.

I certify that the 61 preceding paragraphs are a true copy of the reasons for the decision herein of Mr RP Handley, Deputy President

Signed: ..........[sgd]..............................................................
Associate

Date of Hearing: 31 March 2010
Date of Decision: 30 April 2010

Applicant representative: Milne Berry Berger Freedman

Applicant counsel: Mr P Reynolds
Respondent representative: Ms L Weston, DLA Phillips Fox