Siddique Abu Jafar and Minister for Immigration and Citizenship
[2012] AATA 577
[2012] AATA 577
Division GENERAL ADMINISTRATIVE DIVISION File Number
2011/4471
Re
Siddique Abu Jafar
APPLICANT
And
Minister for Immigration and Citizenship
RESPONDENT
DECISION
Tribunal Regina Perton, Member
Date 30 August 2012 Place Melbourne The Tribunal affirms the decision under review.
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Regina Perton, Member
Citizenship – application for citizenship by conferral – permanent resident – did not meet required time in Australia in the year prior to application due to overseas work commitments – working for Australian company – overseas entry visas more difficult to obtain with Bangladeshi citizenship than Australian citizenship – Ministerial instrument - lack of discretion – decision affirmed.
Australian Citizenship Act 2007 sections 21, 22, 22A, 22B, 22C, 24
Ministerial Legislative Instrument IMMI 09/095 issued pursuant to section 22C of the Australian Citizenship Act
Australian Citizenship Act 1948 section 13(4)(b)REASONS FOR DECISION
Regina Perton, Member
30 August 2012
Mr Siddique Abu Jafar is a 62 year old citizen of Bangladesh. He is a permanent resident who was sponsored for migration by his employer. On 17 August 2011 Mr Jafar applied for Australian citizenship.
On 12 September 2011 a delegate of the Minister for Immigration and Citizenship (the Minister) refused the application on the basis that Mr Jafar did not meet the prescribed residence requirements. Mr Jafar works for an Australian company. His role requires frequent overseas travel. His wife, who applied for citizenship at the same time as her husband, was granted Australian citizenship on 8 September 2011. On 14 October 2011 Mr Jafar lodged an application for review of the decision with this Tribunal.
The issue before the Tribunal is whether Mr Jafar satisfied the residence requirements at the time of his application for citizenship. As he did not, the Tribunal will consider if it has any discretion to waive those requirements.
RELEVANT LEGISLATION
Section 21(1) of the Australian Citizenship Act 2007 (the Act) sets out the eligibility criteria for citizenship:
(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.
Section 22(1) of the Act provides that:
(1) Subject to this section, for the purposes of section 21 a person satisfies the general 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;
(b) the person was not present in Australia as an unlawful non-citizen at any time during that four 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
Section 22(1B) of the Act provides for some overseas absences:
(IB) If:
(a) the person was absent from Australia for 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 90 days; 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 absence.
Section 22(6) of the Act provides for ministerial discretion if the person in Australia would suffer significant hardship or disadvantage:
(6) For the purposes of paragraph (1)(c), 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 present in Australia during that period (except as a permanent resident or an unlawful non-citizen); and
(b) the Minister is satisfied that the person will suffer significant hardship or disadvantage if that period were not treated as one during which the person was present in Australia as a permanent resident.
Section 22(9) of the Act provides:
Ministerial discretion--spouse, de facto partner or surviving spouse or de facto partner of Australian citizen
(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.
Section 22A of the Act provides:
22A Special residence requirement - persons engaging in activities that are of benefit to Australia
(1) Subject to this section, for the purposes of section 21 a person (the applicant) satisfies the special residence requirement if:
(a) the following apply:
(i) the applicant is seeking to engage in an activity specified under subsection 22C(1);
(ii) the applicant’s engagement in that activity would be of benefit to Australia;
(iii) the applicant needs to be an Australian citizen in order to engage in that activity;
(iv) in order for the applicant to engage in that activity, there is insufficient time for the applicant to satisfy the general residence requirement (see section 22); and
(b) the head of an organisation specified under subsection 22C(2), or a person whom the Minister is satisfied holds a senior position in that organisation, has given the Minister a notice in writing stating that the applicant has a reasonable prospect of being engaged in that activity; and
(c) the applicant was present in Australia for a total of at least 180 days during the period of 2 years immediately before the day the applicant made the application; and
(d) the applicant was present in Australia for a total of at least 90 days during the period of 12 months immediately before the day the applicant made the application; and
(e) the applicant was ordinarily resident in Australia throughout the period of 2 years immediately before the day the applicant made the application; and
(f) the applicant was a permanent resident for the period of 2 years immediately before the day the applicant made the application; and
(g) the applicant was not present in Australia as an unlawful non‑citizen at any time during the period of 2 years immediately before the day the applicant made the application.
Section 22B of the Act provides:
22B Special residence requirement—persons engaged in particular kinds of work requiring regular travel outside Australia
(1) Subject to this section, for the purposes of section 21 a person satisfies the special residence requirement if:
(a) at the time the person made the application, the person is engaged in work of a kind specified under subsection 22C(3) and the person is required to regularly travel outside Australia because of that work; and
(b) the following apply:
(i) the person was engaged in that kind of work for a total of at least 2 years during the period of 4 years immediately before the day the person made the application;
(ii) for the whole or part of that 4 year period when the person was engaged in that kind of work, the person regularly travelled outside Australia because of that work; and
(c) the person was present in Australia for a total of at least 480 days during the period of 4 years immediately before the day the person made the application; and
(d) the person was present in Australia for a total of at least 120 days during the period of 12 months immediately before the day the person made the application; and
(e) the person was ordinarily resident in Australia throughout the period of 4 years immediately before the day the person made the application; and
(f) the person was a permanent resident for the period of 12 months immediately before the day the person made the application; and
(g) the person was not present in Australia as an unlawful non‑citizen at any time during the period of 4 years immediately before the day the person made the application.
Section 22C of the Act provides:
22C Special residence requirement—legislative instruments
(1) The Minister may, by legislative instrument, specify activities for the purposes of subparagraph 22A(1)(a)(i).
(2) The Minister may, by legislative instrument, specify organisations for the purposes of paragraph 22A(1)(b).
(3) The Minister may, by legislative instrument, specify kinds of work for the purposes of paragraph 22B(1)(a).
On 22 September 2009, the Minister issued a legislative instrument, IMMI 09/095.
SCHEDULE A - ACTIVITIES SPECIFIED FOR THE PURPOSES OF SUBPARAGRAPH 22A(1)(a)(i) OF THE ACT
1. Employment in a position which requires a high-level security clearance in a Department, an Executive Agency, or a Statutory Agency of the Commonwealth.
2. Participation in an Australian team in the following competitions:
(a) the Olympic Winter Games, including qualifying events for the Games;
(b) the Paralympic Winter Games, including qualifying events for the Games;
(c) the Olympic Summer Games; including qualifying events for the Games;
(d) the Paralympic Summer Games; including qualifying events for the Games;
(e) the Davis Cup Competition, including qualifying events for the Competition; and
(f) the Fed Cup Competition, including qualifying events for the Competition.
SCHEDULE B - ORGANISATIONS SPECIFIED FOR THE PURPOSES OF PARAGRAPH 22A(1)(b) OF THE ACT
1. A Department, an Executive Agency, or a Statutory Agency of the Commonwealth;
2. Australian Olympic Committee (AOC);
3. Australian Paralympic Committee (APC); and
4. Tennis Australia.
SCHEDULE C - KINDS OF WORK SPECIFIED FOR THE PURPOSES OF PARAGRAPH 22B(1)(a) OF THE ACT
1. The kinds of work are those undertaken as part of their duties in which a person is:
(a) a member of the crew of a ship; or
(b) a member of the crew of an aircraft; or
(c) engaged in work on a resources installation or a sea installation
Section 24(1A) of the Act provides that the Minister must not approve an application for citizenship unless the person meets the criteria set out in sections 21(2), (3), (4), (5), (6), (7) or (8) of the Act.
DID MR JAFAR SATISFY THE RESIDENCY REQUIREMENT AT THE TIME OF HIS APPLICATION FOR CITIZENSHIP?
It is agreed by both parties, and the Tribunal concurs, that Mr Jafar did not meet the residential requirements for the grant of citizenship that are set out in sections 22(1)(a) and 22(1)(c) of the Act at the time he lodged his application.
Mr Jafar, an engineer, is employed by the Snowy Mountain Engineering Consultancy (SMEC). SMEC, originally a government entity, was sold in the 1990s and is now employee owned. Mr Jafar is the Acting Chief Operating Officer for the South Asia Division of SMEC. Mr Jafar migrated to Australia at the suggestion of SMEC’s management. He has worked for SMEC for some 20 years.
Mr Jafar provided details of the difficulties he and his company have faced as a result of his holding a Bangladeshi passport rather than an Australian one as he undertakes his role. There have been a number of occasions where he has been unable to obtain quick entry or any entry at all to places which he needed to enter on short notice as a result of still holding a Bangladeshi passport. Mr Jafar stated that Australian passport holders can obtain visas for Central Asian countries at the airport. Bangladeshi citizens are unable to do so. He has to travel to another country such as India or Dubai to obtain a visa for those countries. He also has to get a visa to enter the country to obtain the visa for the third country.
Mr Jafar said that he has not been outside Australia so regularly because of holidays or the like. His absences have been because SMEC needed him to travel to various places, often at short notice, as part of his role.
Mr Barry Norman, Managing Director of SMEC International Pty Ltd gave oral and written evidence. In a statement dated 13 March 2012, Mr Norman stated:
…
In my role as Managing Director of SMEC International Pty Ltd (an Australian company), Mr Jafar reports to me in his role as Acting Chief Operating Officer to South Asia Division. He has worked for SMEC for almost 20 years and progressed from a Country Manager role in Bangladesh to Acting Chief Operating Officer for the whole of South and Central Asia and part of Africa, which for SMEC includes the following countries and comprises of close to 2,000 staff:
India Sri Lanka Kazakhstan Uzbekistan Madagascar
Bangladesh Pakistan Kyrgyzstan Bhutan Mauritius
Nepal Afghanistan Tajikistan Maldives
Because of his senior position in the Company, we have elected for him to be based in Australia so he can interface with, and be a part of, the Executive Management Team. From a management perspective, and for the development of his skills, the move to Australia has been most successful.
However, his role requires very regular and consistent travel to the above region and, on occasions, to other parts of SMEC’s operations in Africa, Asia Pacific and the Middle East. The fact that he currently travels on a Bangladeshi passport creates considerable hardship and inconvenience to both Mr Jafar and SMEC due to the constraints and issues associated with obtaining the numerous Visa’s necessary to satisfy his travel requirements.
Specific details have been outlined in his initial review application.
As your records will show, Mr Jafar’s family have recently been granted Australian Citizenship and I understand that his application has been penalised due to the time he spent out of Australia satisfying his work commitments.
He and his family are all very reputable, solid citizens and I am very supportive of his application not merely to assist in his travel, but also to welcome them as “Australians”.
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In his oral evidence, Mr Norman described how SMEC had benefitted from Mr Jafar taking on his current role. He stated that Mr Jafar had put the company’s needs ahead of his own. He confirmed that Mr Jafar’s travel has all been company related. Mr Norman also stated on some occasions there is really no option but for Mr Jafar to travel to overseas locations to address issues arising at particular SMEC projects. Mr Norman described occasions where Mr Jafar had to travel to other countries to try and obtain a visa which he would have been able to obtain in Australia if he had Australian citizenship. Mr Norman produced an APEC Card which Australian citizens could obtain to facilitate entry into a number of countries. As a Bangladeshi citizen, Mr Jafar is unable to obtain an APEC card and hence is unable to have the ease of access accorded to Australian citizens.
Ross Hitt, Managing Director and Chief Executive Officer of SMEC also provided a written statement dated 13 March 2012. He stated that Mr Jafar had joined SMEC in 1992 and was appointed to his current role in 2010.
… He is responsible for management and coordination of company operation in South Asia and Central Asia with 6 subsidiaries including organisational revenue/expense and balance sheet reports, development and monitoring of organisational and contract/grant budgets for our entire operation in South Asia. He is accountable for over 20% of our total revenue from international market. This is an amount well over $70 million in Australian currency per year. He has over 35 years industry experience in structural design, construction supervision, quality control and project monitoring for large-scale civil engineering projects, which has been an instrumental leadership asset in achieving SMEC’s financial milestone in South Asian and Central Asia region.
Mr. Jafar is a key member of SMEC’s Executive Committee and in order to perform his duty he needs to travel frequently to different south Asian and Central Asian countries. At present he (Mr. Jafar) holds Australian permanent residency and in order to travel to different countries, he needs to apply for business visa, which occasionally cause delay in achieving our financial goal. An Australian citizenship will allow Mr. Jafar to plan his travel with less administrative preparation and will ultimately contribute to SMEC’s revenue growth.
…
Mr. Jafar and SMEC have experienced significant hardship and disadvantage, while Mr Jafar undertook his frequent overseas travel for business, in obtaining timely visas to him in the absence of holding an Australian passport.
…
DO ANY OF THE DISCRETIONARY PROVISIONS ASSIST MR JAFAR?
The Tribunal has examined the very limited discretion available in the Act for a person in Mr Jafar’s situation.
Section 22(9) allows for limited discretion where a person was the spouse or surviving spouse of an Australian citizen at the time of the application. That does not apply to Mr Jafar as his wife had not yet become an Australian citizen when Mr Jafar lodged his application for citizenship in August 2011. She became a citizen in September 2011. The Tribunal cannot take her citizenship into account as it must consider whether Mr Jafar met the legislative requirements on the date of application.
Under previous legislation, namely the Australian Citizenship Act 1948, section 13(4)(b) allowed the decision maker to treat a period during which a permanent resident was outside Australia as if he was in Australia if the person was engaged in activities that the Minister considers beneficial to Australia. It allowed the decision maker some flexibility in individual cases. However the current legislation does not give such broad discretion. Section 22B only applies where the Minister has specified certain circumstances in a legislative instrument. IMMI 09/095, the relevant instrument, does not cover Mr Jafar’s situation. Therefore the Tribunal is unable to take into account Mr Jafar’s activities while undertaking work for SMEC overseas.
None of the other provisions in section 22 are relevant to Mr Jafar. Therefore the Tribunal has no option but to refuse Mr Jafar’s application.
DECISION
The Tribunal affirms the decision under review.
I certify that the preceding 25 (twenty five) paragraphs are a true copy of the reasons for the decision herein of ............................[sgd]............................................
Assistant
Dated 30 August 2012
Date of hearing
12 June 2012
Advocate for the Applicant
Mr S K Dhar
Advocate for the Respondent
Mr D McLaren
Solicitors for the Respondent
Sparke Helmore
Key Legal Topics
Areas of Law
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Administrative Law
Legal Concepts
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Judicial Review
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Administrative Decisions (Administrative Law)
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