Tanko and Minister for Immigration and Citizenship
[2011] AATA 122
•24 February 2011
Administrative Appeals Tribunal
ADMINISTRATIVE APPEALS TRIBUNAL )
)No: 2010/3276
General Administrative Division )
Re: Mohammed Tanko
Applicant
And: Minister for Immigration and Citizenship
RespondentTRIBUNAL: Senior Member R W Dunne
DATE: 8 March 2011
PLACE: Adelaide
Submissions have been made on behalf of the respondent in relation to the form of the order made by the Tribunal in the decision in this matter.
Following consideration of these submissions, pursuant to s 43AA(1) of the Administrative Appeals Tribunal Act 1975 the TRIBUNAL DIRECTS the Registrar to alter the text of the reasons for decision in this matter by substituting the following for the order on page 1 and in paragraph 23 of the decision:
“The Tribunal sets aside the decision under review and remits the matter back to the respondent with a direction that the applicant satisfies s 21(2)(c) of the Australian Citizenship Act 2007 (Cth).”
……………………………………
R W DUNNE
(Senior Member)
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2011] AATA 122
ADMINISTRATIVE APPEALS TRIBUNAL )
) No 2010/3276
GENERAL ADMINISTRATIVE DIVISION ) Re MOHAMMED GOMA TANKO Applicant
And
MINISTER FOR IMMIGRATION AND CITIZENSHIP
Respondent
DECISION
Tribunal Senior Member R W Dunne Date24 February 2011
PlaceAdelaide
Decision The Tribunal sets aside the decision under review and substitutes the decision that the applicant should be granted Australian citizenship.
..............................................
R W DUNNE
(Senior Member)
CATCHWORDS
IMMIGRATION AND CITIZENSHIP – permanent resident – application for citizenship – residency requirements not met – transitional provisions – exercise of discretion – period spent overseas by permanent resident who was spouse of Australian citizen at time of application – Australian Citizenship Instructions – discretion not exercised by delegate – decision under review set aside
Australian Citizenship Act 2007 (Cth) ss 21(1), 21(2), 22(1), 22(9)
Australian Citizenship (Transitionals and Consequentials) Act 2007 (Cth) Schedule 3, Item 5B
Australian Citizenship Instructions
Hneidi v Minister for Immigration and Citizenship (2010) 182 FCR 115
Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634
Re Dainty and Minister for Immigration and Ethnic Affairs (1987) 6 AAR 259
Re Vukaj and Minister for Immigration and Multicultural Affairs [2006] AATA 1075Re Hneidi and Minister for Immigration and Citizenship [2008] AATA 923
REASONS FOR DECISION
24 February 2011 Senior Member R W Dunne introduction
1. The applicant (Mohammed Tanko) became a permanent resident of Australia on 14 July 2005. On 14 July 2009, he applied for conferral of Australian citizenship. His wife acquired Australia citizenship on 17 October 2007. At the time of lodgement of his application he resided overseas and did not meet the relevant residency requirements set out in the Australian Citizenship Act 2007 (“Act”) and the Australian Citizenship (Transitionals and Consequentials) Act 2007 (“Transitionals Act”). To overcome those requirements, he applied for a Ministerial discretion on the basis that the periods he spent overseas should be counted as periods of permanent residence in Australia. On 25 June 2010, Mr Tanko’s application for citizenship was refused by the delegate. He now seeks review of that decision by this Tribunal.
2. At the hearing, Mr Tanko represented himself and Mr P d’Assumpcao appeared for the respondent. I received into evidence the T documents (Exhibit R1) lodged pursuant to s 37 of Administrative Appeals Tribunal Act 1975.
issues for the tribunal
3. The issues for the Tribunal are as follows:
(a) Should the discretion be exercised to treat periods spent overseas by the applicant as periods during which he was present in Australia as a permanent resident?
(b)Should the applicant be granted Australian citizenship?
legislative and policy background
4. The Act came into operation on 1 July 2007 and s 21(2) sets out the general eligibility criteria for a person to become an Australian citizen. The section relevantly reads:
“21 Application and eligibility for citizenship
…
General eligibility
(2)A person is eligible to become an Australian citizen if the Minister is satisfied that the person:
(a)is aged 18 or over at the time the person made the application; and
(b) is a permanent resident:
(i) at the time the person made the application; and
(ii)at the time of the Minister’s decision on the application; and
(c)satisfies the residence requirement (see section 22), or has completed relevant defence service (see section 23), at the time the person made the application; and
(d)understands the nature of an application under subsection (1); and
(e) possesses a basic knowledge of the English language; and
(f)has an adequate knowledge of Australia and of the responsibilities and privileges of Australian citizenship; and
(g)is likely to reside, or to continue to reside, in Australia or to maintain a close and continuing association with Australia if the application were to be approved; and
(h)is of good character at the time of the Minister’s decision on the application.”
Section 21(2)(c) makes it an eligibility criterion for the person to meet the residence requirement set out in s 22(1) of the Act. However, if a person was a permanent resident of Australia before the commencement of the Act, the residence requirement does not apply and Schedule 3, Item 5B of the Transitionals Act applies. Item 5B relevantly provides:
“5B Citizenship 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.
…”
5. Where a person does not satisfy the time requirements in Item 5B of Schedule 3, the Transitionals Act allows for a discretion, provided in s 22(9) of the Act, which reads:
“22 Residence requirement
…
(9)If the person is the spouse, widow or widower of an Australian citizen at the time the person made the application, the Minister may treat a period as one in which the person was present in Australia as a permanent resident if:
(a)the person was a spouse of that Australian citizen during that period; and
(b) the person was not present in Australia during that period; and
(c) the person was a permanent resident during that period; and
(d)the Minister is satisfied that the person had a close and continuing association with Australia during that period.”
6. The current Australian Citizenship Instructions (“Instructions”) provide guidance in relation to the exercise of the discretion in s 22(9) of the Act. The relevant paragraphs of the Instructions are set out in Chapter 5 and read:
“Under s22(9), periods spent overseas by a permanent resident who is the spouse, de facto partner or surviving spouse or de facto partner of an Australian citizen at the time of making an application, can be counted as periods of permanent residence in Australia.
The discretion to treat periods spent overseas by an applicant as periods during which the applicant was present in Australia as a permanent resident can only be applied to periods when:
• the applicant was the spouse or de facto partner of a person who was an Australian citizen, and
• the applicant was a permanent resident and
• the applicant had a close and continuing association with Australia (see below).
If the applicant is the surviving spouse or de facto partner of an Australian citizen, they can only count time while their Australian citizen spouse or de facto partner was alive.
Policy is that this discretion would usually only be exercised if the applicant was overseas with their Australian citizen spouse or de facto partner.
Factors that may contribute to a close and continuing association with Australia include:
• Australian citizen children
• length of relationship with Australian citizen spouse or de facto partner
• extended family in Australia
• return visits to Australia
• periods of residence in Australia
• intention to reside in Australia
• employment in Australia (eg public or private sector)
• ownership of property in Australia
• evidence of income tax payment in Australia and
• current bank accounts in Australia.
…”
background and evidence of applicant
7. The material facts in this case are not in dispute. Mr Tanko holds Nigerian citizenship and currently resides in the United Arab Emirates. He is married and has five children aged between 3 years and 21 years, all of whom are Australian citizens.
8. On 4 July 2008, Mr Tanko made an application for Australian citizenship. A delegate of the Minister refused the application. In her reasons, the delegate found that the applicant did not meet the residency requirements under Item 5B of Schedule 3 to the Transitionals Act and that the applicant’s case did not fall within the policy framework for the exercise of a discretion under s 22(9) of the Act. When he again applied for citizenship on 14 July 2009, a letter supporting the application said that he owned a property in South Australia, was continuing his studies at Curtin University in Western Australia for a doctorate degree, was a member of both the South Australian Teachers’ Board and the Western Australian College of Teaching and spent his holidays in Australia with his wife and children.
9. In his evidence, Mr Tanko said that he had been unable to secure a teaching position in Australia and, as the main breadwinner for the family not wanting to go on the “dole”, he had been forced to work overseas. Although his wife and children resided in Australia, they supported his decision to live and work outside Australia. His wife had visited him in Dubai but, from a cultural perspective, it was necessary for a parent to always be present with their children in Australia. Mr Tanko had applied for many teaching positions in Australia. He had qualifications that were recognised in Australia, including a masters degree in the United Kingdom, and he would finish his doctorate degree this year. Once he obtained his doctorate degree, he was confident that he could obtain a position at Curtin University.
10. In cross-examination by Mr d’Assumpcao, Mr Tanko said that he had looked for employment in Australia through the Department of Education. He had applied for more than 30 positions, the last one being seven months ago. In one of his employment applications, it was suggested that he may have been too qualified for the position he was seeking. Although he was being paid more in the United Arab Emirates than he would receive in Australia, because of the tax free remuneration and accommodation, he would prefer to work in Australia. Although he was still working in the United Arab Emirates, he was only there on a work visa which could be cancelled at any time by his employer. He said he would come to Australia as soon as he could obtain employment here, even if it was only a part-time position. If he was able to come to South Australia, he would complete his doctorate degree here.
consideration
Should the discretion be exercised to treat periods spent overseas by the applicant as periods during which he was present in Australia as a permanent resident?
11. Mr Tanko made application for citizenship under s 21(1) of the Act within the period of three years of the commencement of the Act. As he did not satisfy the residency requirements in s 21(1), Item 5B of the Transitionals Act applies to his personal circumstances. However, on the evidence, he does not satisfy the general residency requirements in Item 5B(2) of the Transitionals Act.
12. Mr Tanko has sought the application of the Ministerial discretion in s 22(9) of the Act to meet the residency requirements. That provision is expressed in simple terms and no criteria are set out in the Act to govern exercise of the discretion. Mr Tanko satisfies most of the criteria in s 22(9). However, if the discretion is to be exercised, the Minister (or upon review, the Tribunal standing in the shoes of the Minister) must be satisfied that Mr Tanko had a close and continuing association with Australia during the period that he was not present in Australia.
13. In considering s 22(9) of the Act, the Tribunal is to take into account the Instructions and give them appropriate weight (Hneidi v Minister for Immigration and Citizenship (2010) 182 FCR 115, at paragraph 61). However, the overarching principle is that the Tribunal must make an independent assessment on the material before it (Hneidi, at paragraph 59). The Instructions provide guidance in relation to the operation of s 22(9) of the Act. The Tribunal should have regard to the Instructions unless there are cogent reasons not to do so. As was said by Brennan J (as His Honour then was) in Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634 at pages 644-645:
“… 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 were 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. …”
14. In Re Dainty and Minister for Immigration and Ethnic Affairs (1987) 6 AAR 259 and Re Vukaj and Minister for Immigration and Multicultural Affairs [2006] AATA 1075, citizenship applications were granted even though the guidelines set out in the Instructions were not satisfied. In Re Hneidi and Minister for Immigration and Citizenship [2008] AATA 923, the guidelines set out in the Instructions were not satisfied, and Dr Hneidi’s citizenship application was rejected.
15. In Re Dainty, Davies J said (at page 266):
“I accept that, in the exercise of discretions under the Australian Citizenship Act, the Tribunal ought generally to apply guidelines or policies which have been established by the Minister of State for Immigration and Ethnic Affairs. Such policies can only be adopted by the Minister. He has the experience and advice and the power to formulate such policies and he is able to take responsibility in Parliament should the policies be found wanting.
But to say that is not say that the Tribunal ought to treat policy as more than policy. Policy is not a legislative prescription and, though in many cases it will be appropriate to apply policy in all or almost every case, there are circumstances where it is not appropriate to decide a matter merely by reference to a policy which has been laid down.”
16. In Re Vukaj, the Tribunal said (at paragraph 44):
“44. The policy underlying a grant of citizenship is evident in the Instructions. The criteria are designed to ensure that an individual can establish a genuine and close connection with Australia, a commitment to Australia and be of appropriate character to become a citizen with all the rights and responsibilities associated with that grant of citizenship. The Instructions endeavour to provide guidance to the decision-maker in determining whether that link is established. The use of the word "usually" in the Instructions reinforces the Tribunal's view that these factors are a guide only.”
17. In Re Hneidi, the Tribunal said (at paragraphs 90 and 92):
“90. In the Tribunal’s view, the present case is distinguishable from that of Re Vukaj and Re Dainty. The flaw in the argument that Dr Hneidi should become an Australian citizen (and the Tribunal has no doubt that he would prove to be an exemplary citizen) lies in the complete lack of certainty about his future plans and his failure to satisfy any of the residency requirements, along with his lack of personal and genuine connection with Australia. It appears likely that the current application has been motivated by a sense of fear and insecurity experienced by this family in 2006 when they discovered that the Australian Embassy would not provide the same support to the non Australian citizen members of the family as it would to the Australian citizen members of the family.
…
92. The Tribunal cannot see that there is a sufficient basis in this case to depart from the Instructions. Dr Hneidi has had the opportunity for some time to come to Australia and live and work in Australia. It will undoubtedly be to Australia’s advantage if he does so. However, his inability to extricate himself from Lebanon, despite the expressed wish to do so over many years, must cast some doubt over when and if he will ever come to Australia. He has had the opportunity to increase his association and connection with Australia for many years, but has not availed himself of that opportunity.”
18. In Mr Tanko’s case, the Instructions (set out in paragraph 6 above) provide some guidance as to the exercise of the discretion in s 22(9) of the Act. The Instructions restate what is required in s 22(9) for the exercise of the discretion, namely, that during the period that he was not present in Australia, Mr Tanko must have had a close and continuing association with Australia.
19. The Instructions also state, in part:
“Policy is that this discretion would usually only be exercised if the applicant was overseas with their Australian citizen interdependent partner.” [emphasis added]
On a literal reading, the Instructions require that Mr Tanko must be overseas with his wife during the relevant period. However, the use of the word “usually” suggests to me that the policy expressed in the Instructions is only to be used as a guide and that it may be appropriate in some cases to depart from what is the normal approach (see Re Vukaj (supra) at paragraph 40). Mr Tanko’s case is one of them.
20. Mr Tanko’s evidence was that he had sought employment in Australia on numerous occasions, but had been forced to work overseas to support his large family, all of whom were Australian citizens. It was his preference that he and his family would live in Australia, but that he would not remain here in receipt of social security benefits. He was well qualified as a mathematician and, as a sponsored skilled migrant to South Australia, his hopes were high that he would obtain a teaching position here. In giving his evidence, he said that there would be cultural difficulties in allowing his older children, aged 21 years and 19 years and attending university, to remain in Australia without his wife being present. In my view, there are cogent reasons why the Instructions should be departed from in Mr Tanko’s case. Obvious financial detriment would flow if the Instructions were applied in his case and he was forced to live in Australia on unemployment benefits. As a teacher, he says he strongly supports Australia’s education system and believes it is in the best interests of his family that his children be educated in Australia and not overseas.
21. As I have found that there are cogent reasons that warrant departure from the Instructions to the extent I have indicated, I turn to the requirement that Mr Tanko should have a close and continuing association with Australia during the relevant period overseas. On the facts of his case, I am of the opinion that Mr Tanko satisfies the following factors that are set out in the Instructions:
(a) he has Australian citizen children;
(b)he has been married to his spouse, who is an Australian citizen, for over 22 years;
(c) he returns to Australia for visits during school holidays;
(d) it is his intention to reside in Australia with his family;
(e)he is studying and will obtain a doctorate degree from Curtin University later this year;
(f) he now owns or has an interest in property in Australia; and
(g)on the evidence, it appears he has banking facilities or current bank accounts in Australia.
22. Based on the factors in paragraph 21, and although he may have spent only 203 days in Australia since 2005, I am nevertheless satisfied that Mr Tanko had a close and continuing association with Australia during the relevant period. The discretion in s 22(9) of the Act should be exercised in his favour.
decision
23. For the reasons outlined above, the Tribunal sets aside the decision under review and substitutes the decision that the applicant should be granted Australian citizenship.
I certify that the 23 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member R W Dunne
Signed: ............J Coulthard.......................................
AssociateDate of Hearing 1 February 2011
Date of Decision 24 February 2011
Advocate for the Applicant Self-represented
Advocate for the Respondent Mr P d'Assumpcao
Solicitor for the Respondent AGS
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