Sabbah and Minister for Immigration and Multicultural Affairs

[2007] AATA 1035

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2007] AATA 1035

ADMINISTRATIVE APPEALS TRIBUNAL           №V2006/678

GENERAL  ADMINISTRATIVE DIVISION

Re:           HANI SABBAH

Applicant

And:MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

Respondent

DECISION

Tribunal:       Dr Gordon Hughes, Member

Date:31 January 2007

Place:Melbourne

Decision:The Tribunal affirms the decision under review.

(sgd) Gordon Hughes

Member

Citizenship – refusal to grant citizenship- exercise of Ministerial discretion – whether employment in a third country is beneficial to the interests of Australia – whether financial disadvantage constitutes significant hardship

Australian Citizenship Act 1948 s 13(1)(d), 13(1)(e), 13(4)(b)(i), 13(4)(b)(iv), 13(9)

Minister for Immigration, Local Government and Ethnic Affairs v Roberts (1993) 29 ALD 656

Re Ho and Minister for Immigration and Ethnic Affairs (1994) 34 ALD 664

Re McCarthy and Minister for Immigration, Local Government and Ethnic Affairs (1993) 30 ALD 447

Re Kao and Minister for Immigration and Ethnic Affairs (AAT 9162, 7 December 1993)

REASONS FOR DECISION

31 January 2007  Dr Gordon Hughes, Member

1.       This matter was heard by the Tribunal on 30 November 2006.  Mr Tarek Ayoubi, a friend of the applicant, appeared for the applicant.  Mr David Brown, solicitor, from the Australian Government Solicitor appeared for the respondent.

2.       The applicant was seeking a review of a decision by the respondent to refuse his application for Australian citizenship.

3.       The applicant travels on a Jordanian passport.  He arrived in Australia on 21 February 2004, having been granted a permanent visa while off shore.  His application for citizenship was made on 26 April 2006 and refused on 25 July 2006.

4. It was not contested that the applicant failed to satisfy s 13(1)(e) of the Australian Citizenship Act 1948 (the Act), which states:

(1)  Subject to this section the Minister may, in the Minister’s discretion, upon application in accordance with the approved form, grant a certificate of Australian citizenship to a person who satisfies the Minister that:

…

(e)the person has been present in Australia as a permanent resident for a period of, or for periods amounting the aggregate to, not less than 2 years during the period of 5 years immediately preceding the date of the furnishing of the application.

5. The applicant had spent 496 days in Australia in the course of the preceding 5 years when he made his application for a grant of citizenship and hence he failed to comply with s 13(1)(e).

6. The application for citizenship was nevertheless considered under s 13(4)(b)(i) and (iv) of the Act which provides:

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

…

(b)       …the Minister may, in the Minister’s discretion:

(i)treat a period during which the applicant:

(A)was a permanent resident;

(B)was not present in Australia; and

(C)was engaged in activities that the Minister considers beneficial to the interests of Australia;

as a period during which the applicant was present in Australia as a permanent resident;

…

(iv)if the Minister considers that the applicant would suffer significant hardship or disadvantage if a certificate of Australian citizenship were not granted to the applicant – treat a period during which the applicant was present in Australia…as a period during which the applicant was present in Australia as a permanent resident.

…

7.       The issues for determination, therefore, are whether, during his absences from Australia in the 5 years immediately preceding his application for Australian citizenship, the applicant had been engaged in activities beneficial to the interests of Australia; and whether the applicant would suffer significant hardship or disadvantage if refused citizenship.

8.       The applicant’s absences from Australia since gaining permanent residence in February 2004 related principally to his employment as a branch manager with the International Union Insurance Group in Kuwait.  He was working in Kuwait under a Kuwaiti residence visa.

9. The applicant would meet the requirements for s 13(1)(e) of the Act if he remained continuously in Australia until 1 February 2007. He was reluctant to do so, however, because his Kuwaiti visa would expire if he was absent from Kuwait for a period of more than 6 months. He planned to keep working in Kuwait following the granting of his Australian citizenship.

10.     The applicant claimed that his activities in Kuwait were beneficial to the interests of Australia because they provided him with the means to develop local contacts which would assist in the establishment of local business ventures with the capacity to employ Australian citizens.  He also intimated that his current job in Kuwait provided him with an opportunity to save money and, presumably, would better position him for a more productive career in Australia when he eventually settled here, following the granting of his citizenship.

11.     In relation to the creation of business opportunities for Australians in Kuwait, the applicant relied on the fact that, on 14 August 2006, he had registered the business name H & T Business Consultant.  He also registered a partnership with the Australian Taxation Office and acquired an Australian Business Number (ABN) and a Tax File Number (TFN).  The ABN and TFN were in the joint names of the applicant and his representative in these proceedings, Tarek Ayoubi.

12.     The applicant further claimed that a refusal to grant citizenship would cause him hardship on the grounds that he would suffer financial disadvantage as a result of losing his job in Kuwait.  Also, he felt embarrassed by the fact that the rest of his family had acquired Australian citizenship while he had not.  He argued generally that his quality of life and job prospects would improve if he had the advantage of Australian citizenship.

13. The Australian Citizenship Instructions (the Instructions) provides guidance in the exercise of discretion under s 13(4)(b)(i) in the following terms:

4.3.17Section 13(4)(b) provides for discretion to waive part or all of the residence requirements in certain circumstances, outlined below. 

4.3.18If the applicant is assessed as eligible for exercise of the discretions under s 13 (4)(b)(i), (ii), (iv) or (v), the decision to grant Australian citizenship must be reviewed by an officer at a higher level, prior to the grant of Australian citizenship (ie. before the delegate approves the application).  This is to ensure that use of these discretions is appropriate and the potential for fraud is minimised.  The second officer review must be recorded in ICSE by the review officer.

4.3.19Periods during which the applicant was a permanent resident and was outside Australia engaged in activities beneficial to the interests of Australia may be counted towards the residence requirements.  This discretion applies to both residence requirements (ie. both “2 years in the last 5” and “1 year in the last 2”)

4.3.20 The legislation is interpreted as requiring the following:

-the applicant must have been a permanent resident (see 1.4) during any of the periods counted and

-          the periods spent outside Australia to be counted must be:

-within the last 5 years for the 2 years in the last 5 years requirement; and

-within the last 2 years for the 1 year in the last 2 years requirement and

-the applicant must have been personally engaged in activities overseas beneficial to the interests of Australia, not just, for example, the company or organisation for which the applicant worked and

-the applicant must have been engaged in a series of activities, not just a one-off transaction and

-the activities must also be during the relevant period/s under consideration and

-the activities must have been ‘beneficial to the interests of Australia’ during the relevant period/s.  It is not intended that the provision apply where there are no current benefits irrespective of whether benefits may accrue in the future.

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

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

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

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

-          the Australian community generally or

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

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

4.3.26In assessing whether activities are beneficial to the interests in Australia, consider the following:

-It requires “something in the nature of activities providing some advantage to Australia, whether commercial or otherwise.  The concept necessarily connotes some public interest of Australia…and means more than the private interests of the (applicant).  The section requires some objective benefit to Australia”. (Federal Court in Roberts)

-It requires “something in the nature of activities which achieve recognition of Australia or of Australian achievements or commercial advantage for Australia, or increase the international respect and goodwill for Australia…(it) refers to the public interests of Australia”.  (AAT in Fraser)

-“The claim that the applicant’s employer has enhanced the reputation of its Australian parent company and Australian companies in general, falls short of demonstrating the applicant’s activities were beneficial to the interests of Australia”. (AAT in McCarthy)

-“There should be a close nexus between overseas activities and the subsequent benefit to Australia to exercise the discretion” (AAT in Tsui).  The benefit should be largely as a result of the applicant’s activities and must not be residual, remote, indirect or speculative (see, for example, the AAT case of McCarthy).

14.     Mr Brown directed the Tribunal to pertinent case law and this is summarised below.

15.     The test generally adopted when considering the exercise of the discretion provided in s 13(4)(b) is that set out by the Federal Court in Minister for Immigration, Local Government and Ethnic Affairs v Roberts (1993) 29 ALD 656 at 660, where Einfeld J said:

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

16.     The test of whether activities are beneficial to Australia is an objective one (see Re Ho and Minister for Immigration and Ethnic Affairs (1994) 34 ALD 664).

17.     In Re Ho, at paragraph 25, Deputy President McMahon emphasised that the activities to which s 13(4)(b) refers must be of a public character; and at paragraph 27, that the circumstances in which the discretion may be exercised must be exceptional.  Deputy President McMahon stated:

…

The discretion contained in s 13(4) is not intended to offer an alternative method of complying with s 13(1)(d) and (e).  It is intended to allow some flexibility, in exceptional circumstances, when specific activities, which are the applicant’s substantial activities during specific periods, can be demonstrated.  The presence of the applicant in Australia for specific periods is one of the prerequisites to a grant of citizenship.  It is not an optional requirement interchangeable with certain activities outside Australia.

18.     In Re McCarthy and Minister for Immigration, Local Government and Ethnic Affairs (1993) 30 ALD 447 at 448, Deputy President McMahon said the applicant’s activities must provide a tangible benefit to Australia. That is, the benefit should be largely as a result of the applicant’s activities and must not be residual, remote, indirect or speculative. In that case, the claim that the applicant’s employer had enhanced the reputation of its Australian parent company and Australian companies in general fell short of demonstrating the applicant’s activities were beneficial to the interests of Australia.

19. The respondent pointed out, however, that the Tribunal has acknowledged that in order to come within s 13(4)(b)(i) of the Act, it is not necessary that the relevant overseas activities benefit the public interest of Australia exclusively – such activities may simultaneously benefit the public interest of Australia and the private interests of the person engaged in those activities: see Re Kao and Minister for Immigration and Ethnic Affairs (AAT 9162, 7 December 1993) at 17 where the Tribunal found that the applicant’s activities, which involved business dealings in the timber and furniture industries, were essential to the maintenance of the Australian business.

20.     The respondent contended that the applicant’s work for a local insurance company in Kuwait served his private interests only, and did not amount to personal involvement in activities beneficial to the interests of Australia.

21.     The respondent further contended that H & T Business Consultant partnership was only formed in August 2006, and that its business activities are at a very preliminary stage of development.  The applicant remained employed on a full‑time basis by International Union Insurance Group in Kuwait; and in any event it was unclear what direct contribution the applicant was making to the operations of the H & T Business Consultant venture.  Finally, the respondent contended that the partnership was not engaged in activities beneficial to the interests of Australia during the period immediately prior to the application for a grant of Australian citizenship, as it was not then in existence.

22. The Tribunal considers that the applicant has failed to establish grounds for the exercise of Ministerial discretion pursuant to s 13(4)(b)(i) of the Act. The Tribunal accepts the respondent’s contention that the applicant’s activities in Kuwait cannot be classified as beneficial to the interests of Australia as that term is used in the legislation.  The Tribunal agrees with the respondent that the H & T Business Consultant partnership was formed after the application for citizenship and is therefore of limited relevance in the current proceedings.  While the Tribunal would have been prepared to consider evidence of substantial preparatory work by the applicant in Kuwait prior to the formation of the partnership, there was in fact little evidence of sustained or successful activity of this nature; and, even if there had been, there is limited evidence at this point of time as to whether the business opportunity is well conceived, whether it is sustainable and whether in fact it does represent a genuine, viable and ongoing source of opportunity for Australian citizens.  Beyond the applicant’s initiative in establishing the H & T Business Consultant partnership, his employment in Kuwait in the insurance business cannot be categorised as being beneficial to the interests of Australia – there is nothing inherent in that employment which could be said to generate commercial advantage or recognition for Australia or which could be said to serve some public interest of Australia, as opposed to the applicant’s private interests.

23.     Similarly, the Tribunal is not satisfied that the applicant will suffer significant hardship or disadvantage through the rejection of his application for citizenship.

24. In relation to the claim of hardship under s 13(4)(b)(iv), the Instructions state:

4.3.33As a matter of policy, this discretion would usually be exercised only in one of the following situations of hardship or disadvantage:

-the applicant can demonstrate that they have 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 them

-the applicant would be excluded from travelling internationally because they cannot obtain a passport or because they are excluded from travelling with immediate Australian family or

-the applicant would not otherwise be eligible to represent Australia in an international forum or be selected to represent Australia in a national representative team/group:

-An applicant should be of international standard to satisfy this criterion.

-If citizenship is a prerequisite to selection for a national team, the applicant should be able to demonstrate that their selection depends solely upon being granted citizenship.

25.     The applicant’s circumstances do not fall within the circumstances outlined in the Instructions.  In any event, the Tribunal does not accept that a refusal of Australian citizenship in the circumstances would impose on the applicant significant hardship or disadvantage as that term is used in the legislation.  The refusal to grant citizenship might be detrimental to the applicant’s commercial activities and might be a source of ongoing discomfort or disruption in his domestic affairs; but clearly the legislation contemplates a material disadvantage of a far more threatening, discriminatory or material nature.

26. Finally, the respondent raised, for the sake of completeness, the question of whether the applicant might have an entitlement under s 13(9) of the Act. The Tribunal does not consider it necessary to consider this argument further, however, as the applicant fails to meet the pre-qualification in s 13(9)(c) of being a permanent resident.

27.     For the above reasons, the Tribunal affirms the decision under review.

I certify that the twenty‑seven [27] preceding paragraphs are a true copy of the reasons for the decision of:

Dr Gordon Hughes, Member

signed:     Olympia Sarrinikolaou

Clerk

Date of hearing:  30 November 2006

Date of decision:  31 January 2007
Advocate for the applicant:           Mr T. Ayoubi
Solicitor for the respondent:         Mr D. Brown, Australian Government Solicitor