Ross and Minister for Immigration and Citizenship

[2007] AATA 1956

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2007] AATA 1956

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No   2007/2662

GENERAL ADMINISTRATIVE DIVISION		)
Re		JOHN ROSS

Applicant

And MINISTER FOR IMMIGRATION
AND CITIZENSHIP

Respondent

DECISION

Tribunal J.W. Constance, Senior Member

Date13 November 2007

PlaceCanberra

Decision 1.     The decision under review is set aside and in substitution it is decided that Mr Ross’ application for Australian citizenship be granted.

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J.W. Constance. Senior Member

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TRANSCRIPT OF PROCEEDINGS

O/N 67938
DRAFT DECISION  [2.59 pm]
ADMINISTRATIVE APPEALS TRIBUNAL
By J. CONSTANCE, SENIOR MEMBER
Matter No A2007/2662
JOHN ROSS and MINISTER FOR IMMIGRATION AND CITIZENSHIP
CANBERRA, 13 NOVEMBER 2007-11-13

MR CONSTANCE:   Good afternoon.  I can indicate that my reasons are being recorded.  So we will obtain a transcript and make that available to you so you will have a record of the reasons.

RECORDED : NOT TRANSCRIBED

This matter is of John Ross v the Minister for Immigration and Citizenship, number 2007/2662 for decision. Mr Ross has applied for review of a decision of the Minister for Immigration and Citizenship made 7 February 2007 which refused his application for a certificate of Australian citizenship under section 13 of the Australian Citizenship Act 1948 of the Commonwealth. For the reasons which follow, the decision under review will be set aside and in substitution it will be decided that Mr Ross’s application for a Certificate of Australian Citizenship be granted.

Looking to the facts of the matter, I accept Mr Ross is a truthful witness. I make the following findings of fact on the balance of probabilities. These findings were based on Mr Ross’s evidence and on the basis of the documents tendered at the hearing. And I note that those documents included all of the documents filed pursuant to section 37 of the Administrative Appeals Tribunal Act and that those documents were exhibit A1.

Turning to the facts of the matter, I at the outset acknowledge the very considerable assistance which the respondent and his representatives provided in this matter.  Mr Ross was unrepresented, and that always is a matter of concern for the Tribunal, that an applicant in those circumstances not be disadvantaged, and the provisions of the documents by the respondent and the way the matter was presented was certainly of considerable assistance, and that’s appreciated.

And I have relied considerably on the respondent’s facts and contentions in summarising the facts, although I am satisfied of those facts, having separately looked at the evidence and in particular the documents.

Mr Ross was born in Canada in 1962 and first entered Australia in 2002 for a very short time.  He entered Australia again in August 2003 on a prospective marriage temporary visa, and in February of 2004 he married Ms Halliday, an Australian citizen.  He left Australia for only about a week in February of 2004.  In June of 2005 Mr Ross’s son, Matthew Edward Ross, was born.  On 13 July 2006 Mr Ross was granted a spouse resident’s visa and from that time he became a permanent resident.  On 12 October 2006 Mr Ross applied for Australian citizenship, and it’s this application which is the subject of these proceedings.

By a decision of 7 February 2006, which is the reviewable decision in this matter, Mr Ross’s citizenship application was refused.  However, Mr Ross was incorrectly advised by a delegate of the respondent that he would be eligible to apply for a grant of citizenship on 12 July 2007.  In fact that date should have read 12 July 2008.

Mr Ross has a university degree which he obtained in Canada in 1986.  It’s a degree in human resource management and political science, and he obtained later qualifications in 1996.  His work history is set out in detail in exhibit A1, but I can summarise it by saying that whilst in Canada he worked in the areas of computer, providing technical support for about a year, but the majority of his working life in Canada, a period of about eight-and-a-half years, was spent in the public sector working in claims management in the workers compensation area.  He also undertook some survey work for the government.

Since he has lived in Australia, since 2003, he has again worked in the computer area, particularly working on help desks, a call centre, and in various areas providing support for computer networks.  He has also worked as a policy officer with various government and private organisations.  And his last employment, in fact his current employment, is with the Department of Industry, Tourism and Resources.

Exhibit A2 is a letter from that department of 29 August 2007 notifying Mr Ross that he had been selected for engagement under section 22(2) of the Public Service Act 1999: “You have been engaged as an ongoing employee” at the classification set out in the letter.  The letter also attached a notice of APS employment which sets out the conditions of engagement.  The letter advised Mr Ross that he should carefully read the notice and if he agreed with the specified conditions, sign and return it to the writer of the letter.

It’s important to note that the notice that’s attached to the letter included this condition, and I quote the relevant part:

The engagement of John Ross is subject to conditions and requirements outlined in this notice of engagement:

(a) Citizenship.  To be eligible for employment with the department the employee must be an Australian citizen.

Despite that statement, it appears that Mr Ross has been employed by the department but his future in that employment is something with which I will deal later in these reasons.

Mr Ross has taken up employment with the department.  He is a level 5 policy officer in the area of Energy and Efficiency.  He gave evidence, and I accept, that he has been advised that he requires a security clearance and until that security clearance is obtained he is uncertain as to his position and has been advised that his position is in jeopardy without that clearance, and to obtain that clearance he requires citizenship.  Mr Ross said in evidence, and I accept, that he wishes to remain in that position.

I also accept Mr Ross’s evidence that until the present position that he holds, he has held various positions on contract and that periods of employment under contract vary between about two weeks and up to two-and-a-half months. He has also applied for many positions, and there is evidence in the section 37 documents to support this, and that application had been made and rejected. He gave evidence, which I accept, that in his time working under these various contract employments, he has spent approximately 10 months unemployed, in various shorter periods of times but totalling around 10 months.

Mr Ross has also applied for various jobs in the public sector, but he is of the view that based on his work experience, he is better suited and more likely to obtain employment in the public sector.  He does not have the necessary qualifications for some of the IT positions in the private sector and has not been successful.  He has been advised and it is his own belief that he generally has more opportunity in the public sector.

In relation to his present position, he said in evidence, and again I accept, that when he applied, he believed on the basis of the information he’d been given, that he would in fact obtain citizenship in the near future, and even after the letter rejecting his application, he believed that there was still a chance that he would obtain this position.

In relation to Mr Ross’s personal situation, as I’ve already indicated, he is married and has one child.  He and his wife have purchased a home in Canberra, which they did in March 2006, and it is their intentions to remain in Canberra.  He and his wife have a mortgage on the property.  His wife is working full time and he is dependent on his wife’s income when he does not have employment.  His wife has a medical condition which does require her to take some time off work, and as one would expect, there are times when one or both of them need to take time off work to care for their child.  Mr Ross’s working in contact positions means that up till now he has not had some of the benefits of full-time employment, such as paid leave.

Turning now to the law that is applicable in this matter. The relevant legislation is, firstly, in section 13 of the Migration Act and this Tribunal has jurisdiction to review the decision of the delegate by virtue of subsection 52A of the Act. Section 13 of the Act in effect provides, in subsection 13(1), that the Minister may, in his discretion, upon application, grant a certificate of Australian citizenship to a person who has been present in Australia as a permanent resident for not less than one year in the period of two years immediately preceding the date of the application, and for a period of two years during the period of five years immediately preceding the date of furnishing the application.

Subsection (4) of section 13 provides the Minister with a discretion if he considers that the applicant would suffer significant hardship or disadvantage if a certificate is not issued. To treat the period during which the applicant was present in Australia otherwise and as a prohibited immigrant, as prohibited non-citizen, as an illegal entrant or as an unlawful non-citizen or in contravention of a law of prescribed territory, is a period during which the applicant was present in Australia as a permanent resident. I note that none of those exceptions apply to Mr Ross.

There is a second discretionary power in subsection (9) which the relevant part reads that:

Subject to subsection (11) the Minister may in the Minister’s discretion upon application in accordance with the approved form, grant a certificate of Australian citizenship to a person subsection (c) who is a permanent resident and is the spouse, widow or widower of an Australian citizen.

I am satisfied that Mr Ross does not meet the residency requirements and that is not in issue.  This matter then requires determination of whether either of the two discretions which have been set out in the legislation and to which I have referred should be exercised in Mr Ross’s favour.  It’s also necessary to look at the Australian citizenship instructions, which is a statement of policy which has been issued to provide guidance in the exercise of the Minister’s discretion under the Act.  I will come back to the particular provisions of this policy in relation to Mr Ross’s situation shortly.

But turning to the manner in which the Tribunal - of the Tribunal’s role - sorry - in reviewing the exercise of this discretionary power, I considered two decisions, the first being the matter of re Drake v the Minister for Immigration and Ethnic Affairs (1979) 2 ALD 634. In that matter, Brennan J, then president of this Tribunal, referred to the importance of consistency in decision making and went on to say:

If consistency in decision making is sought, as it ought to be, the standards and values which a minister expresses in a statement of lawful policy can be a constant reference point for each of the presidential members of the Tribunal in exercising a discretion in particular cases.  Ministerial policy can be an aid to consistency among Tribunal decisions and to consistency between the decisions of the Tribunal and those of the Minister.

Decisions made under a statutory power and reviewed by the Tribunal are but a proportion of the decisions made under that power and it would be a regrettable anomaly if the decisions which were not reviewed revealed different standards and values from those made on review.  These considerations warrant the Tribunal’s adoption of a practice of applying lawful ministerial policy, unless there are cogent reasons to the contrary.  If it was shown that the application of ministerial policy would work an injustice in a particular case, a cogent reason would be shown, for consistency is not preferable to justice.

In my view the Tribunal being entitled to determine its own practice in respect of the part which ministerial policy plays in the making of Tribunal decisions, it should adopt the following practice.  When the Tribunal is reviewing the exercise of a discretionary power reposed in a minister and the Minister had adopted a general policy to guide him in the exercise of the power, the Tribunal will ordinarily apply that policy in reviewing the decision, unless the policy is unlawful or unless its application tends to produce an unjust decision in the circumstances of the particular case.

End of quote.  I have also considered what was said in the decision of re Paul Noel Dainty v the Minister for Immigration and Ethnic Affairs (1987) AAT A3331. Again this was a decision of a president of the Tribunal, this time Davies J, who stated - I quote:

In the present case it would in my opinion be wrong to treat the Minister’s guidelines as binding criteria.  The discretions conferred by section 13(4)(b)(iv) and section 13(9)(c) establish for themselves guides to the matters to which attention ought to be given.  Section 13(4)(b)(iv) looks to significant hardship or disadvantage.  It would be wrong in my view to apply strictly a guideline which admits contemplation of business hardship and disadvantage.  The discretion moreover looks to periods of presence in Australia which ought to be treated as periods of permanent residence.

In my opinion this requires attention to be given to the nature or character of the presence in Australia, that is to say the family, social and business connections which give rise to the presence in Australia, the place of the analogy between the periods of presence in Australia and the permanent residence therein, the more readily a discretion may be exercised.

End of quote.  Whilst that latter quote dealt with the situation in relation to business, it was directly dealing with the discretions under 13(4)(b) and 13(9).  And I take into account those principles.

Turning now to the discretion in 13(4)(b)(iv).  Chapter 4 of the Australian citizenship instructions relevantly provides in paragraph 4.3.34 that this discretion enables periods of temporary residence in Australia to be counted as periods of permanent residence if the applicant would otherwise suffer significant hardship or disadvantage.

The provision then goes on to say that:

The applicant still has to satisfy the normal resident requirements of two years in five and one year in two and must be a permanent resident at the time of application.  It is said the discretion would normally only be exercised if the applicant has 12 months continuous permanent residence in Australia prior to the date of the application.  And there are guidance on hardship or disadvantage.

Those latter guidelines are in paragraph 4.3.33 and provides as a matter of policy, this discretion would usually only be exercised in one of the following situations of hardship or disadvantage and as the applicant can demonstrate that he/she has been refused employment solely on the grounds that the employment is restricted to Australian citizens and that alternative sources of employment are not reasonably available to her.

I also note paragraph 4.3.37, which provides that:

However, decision makers will need to continue to assess each application under 13(4)(b)(iv) on its own merits, as there may be other circumstances which warrant use of the discretion within our outside of normal policy.

In relation to this particular discretion, I have considered the evidence as to whether I am satisfied as to that Mr Ross has been refused employment solely on the grounds that employment is restricted to Australian citizens. I am satisfied of that based on the evidence in exhibit A1, which is the section 37 documents. At page 65 of those documents, in a letter to the Department of Immigration, Mr Ross has stated, and I accept, that - I quote:

I have on several occasions been interviewed and successful for positions, only then to find out that I was unable to take up the job offers as I was not an Australian citizen.

End of quote.  There are a number of other emails within exhibit A1 which certainly indicate that the lack of Australian citizenship has been a problem for Mr Ross, although they do not indicate that he has failed to obtain a particular position.  However I should note that even if I was not satisfied that he had failed to obtain a position, I would have still made the same decision based on the justice of the situation.

I will come to the situation of the significant hardship or disadvantage in relation to both discretions.  I should also add that I have taken into account the various arguments put by the respondent in the statement of facts and contentions filed on 31 October 2007.  And again I express my appreciation for the manner in which they have been set out.

The discretion in relation to section 13(9)(c) is set out in paragraphs 4.5.1 to 4.5.5 of the instructions. These paragraphs provide guidance to decision makers as to when this discretion should usually be exercised in the applicant’s favour. Four point five point two indicates it is the Minister’s policy to exercise the discretion in an applicant’s favour in circumstances where, I quote:

The applicant has been present in Australia as a permanent resident for at least two years in the five years immediately before the application, at least 12 months of which must have been within the two years immediately prior to that date, unless the applicant has been a permanent resident in Australia continuously for the 12 months immediately prior to the application and would otherwise suffer significant hardship or disadvantage.

Again it’s not in dispute that Mr Ross does not meet the permanent resident’s requirements for the period of 12 months immediately prior to the application.

So this matter then comes to be determined on whether the Tribunal is satisfied there has been significant hardship or disadvantage to Mr Ross in these circumstances, should his application for citizenship not be granted.  As I indicated at the outset, I am satisfied that in the circumstances the discretion in both instances should be exercised in Mr Ross’s favour.  I have taken into account that he has clearly attempted to obtain work since he took up residence in Australia and that he in fact has on many occasions been able to obtain contract work.  However despite what I believe is his best endeavours, he has still spent approximately 10 months unemployed between periods of contract.

I am satisfied that he is committed to Australia and to his family.  He and his wife have purchased a home in Canberra, have taken out a mortgage and they have the responsibility of a young child.  I also take into account the difficulties which arise from Mr Ross being under contract work, as he was up until his present position.  That provides, as he indicated, and I accept, uncertainty as to his and his family’s financial situation and provides him with less benefits than he would obtain in permanent employment.

I also take into account his wife’s health, although that is, on the evidence, not of great relevance but is a matter to be considered.  And I take into account the shared need between Mr Ross and his wife to care for their child.  Mr Ross has now the opportunity of a permanent job in a field in which he wishes to work and which is, it seems, suitable for his experience.  That needs to be compared with the contract work that he has been able to undertaken up until his present position.

I am satisfied on all of the evidence that on the balance of probabilities Mr Ross will lose this position should he not obtain citizenship. As I have referred earlier in the reasons, despite the fact that Mr Ross appears to have been employed, the terms and conditions indicate that citizenship is required. As has been pointed out to me on behalf of the respondent, the Public Service Act gives a discretion to the head of each department as to whether citizenship is a necessary requirement of employment within a particular department. But in view of the terms and conditions of employment, I am satisfied in this case that citizenship is a requirement and that if Mr Ross does not obtain citizenship, it is unlikely that his position will be held until he can obtain it.

This is given some support in exhibit A2 at page 77, where there are a number of emails which Mr Ross has received in relation to his various job applications.  And in one email at page 77, from an employment agency, it refers to a situation in which the department in which Mr Ross is now employed where someone had been placed who did not have Australian citizenship, and the indication is - and I quote:

Her manager was happy to keep her but when the security area found out, they said she had to leave.

Close quote.  And I’m satisfied that that would b the position with Mr Ross.

In all of these circumstances I am satisfied that it would be an injustice to apply the policy strictly, to the extent that Mr Ross would lose the benefit of a permanent position and would have to return, it would seem, to the prospect of contract positions until around August of next year.  I take into account in reaching this decision that there has been no suggestion and there is nothing in the evidence before me to suggest that Mr Ross would not be successful in an application for citizenship after July of 2008.  In these circumstances, to the extent that Mr Ross does not meet the policy guidelines, I do not apply that policy.

The formal decision which we will issue will be that the decision under review is set aside and in substitution it is decided that Mr Ross’s application for Australian citizenship be granted.

RECORDED : NOT TRANSCRIBED

If I referred to that, I withdraw that, I’m sorry. I amend those reasons. I certainly didn’t intend to apply the Migration Act. I applied the Citizenship Act. Thank you.

Anything further?  Thank you for your attendance and as I said, we will issue a copy of the transcript.

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