Vukaj and Minister for Immigration and Multicultural Affairs
[2006] AATA 1075
•13 December 2006
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2006] AATA 1075
ADMINISTRATIVE APPEALS TRIBUNAL )
) No S2006/308
GENERAL ADMINISTRATIVE DIVISION ) Re RREZARTA VUKAJ Applicant
And
MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
Respondent
DECISION
Tribunal Senior Member L Hastwell Date13 December 2006
PlaceAdelaide
Decision The Tribunal sets aside decision under review and substitutes the decision that the applicant should be granted a Certificate of Citizenship.
..............................................
L HASTWELL
(Senior Member)
CATCHWORDS
IMMIGRATION AND CITIZENSHIP – application for citizenship – Albanian citizen – spouse application not considered by delegate – significant hardship or disadvantage not made out – delegate can also treat the application as a spouse application – Citizenship Instructions considered – residency requirements not yet satisfied – underlying policy of connection with Australia satisfied – special circumstances in this case justify departure from usual policy regarding residency requirement – decision set aside
Australian Citizenship Act 1948 ss 13, 52A(a)
Administrative Appeals Tribunal Act 1975 s 43(1)
Isaacs v Commissioner of Taxation [2005] FCA 832
ASIC v Donald (2003)136 FCR 7
Re Dainty and Minister for Immigration and Ethnic Affairs (1987) 6 AAR 259REASONS FOR DECISION
13 December 2006 Senior Member L Hastwell 1. Rrezarta Vukaj (the applicant) was born on 1 January 1985. She married Toma Ljuldjuraj in Italy in 2004. She is an Albanian National who has lived in Italy for a number of years on a provisional resident’s visa. Toma is an Australian citizen who was born in Australia and has lived all his life in this country.
2. The applicant arrived in Australia on 25 July 2004 and was granted a subclass 309 spouse (provisional) visa. This gave her a right to temporary residence in Australia.
3. Due to her father suffering an unexpected and serious illness that required surgery, she returned to Italy to spend some time with him in April 2006. She returned to Australia after 5 weeks.
4. She was granted an Australian subclass 100 spouse visa on 28 July 2006. This gave her a right to permanent residence in Australia.
5. On 16 August 2006 the applicant made application for a certificate of Australian citizenship. On 25 August 2006 the application was refused by the Minister’s delegate on the grounds that she has not satisfied the requirements as to permanent residence for a total period of 2 years in the 5 years preceding the application and for 1 year in the 2 years immediately prior to lodgement.
6. The applicant seeks a review of the decision to this Tribunal.
7. The Tribunal is empowered to review the delegate’s decision by virtue of s 52A(a) of the Australian Citizenship Act 1948 (the Act).
relevant legislation
8. Section 13 of the Act sets out the requirements for a grant of citizenship. A grant remains a discretionary matter for the Minister once the requirements set out in s 13 of the Act are satisfied.
9. The relevant provisions for the purposes of this review are ss 13(1), 13(4)(b)(iv) and 13(9)(c) of the Act. They provide as follows:
“13(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:
(a) the person is a permanent resident;
(b) the person has attained the age of 18 years;
(c) the person understands the nature of the application;
(d)the person has been present in Australia as a permanent resident for a period of, or for periods amounting in the aggregate to, not less than one year during the period of 2 years immediately preceding the date of the furnishing of the application;
(e)the person has been present in Australia as a permanent resident for a period of, or for periods amounting in the aggregate to, not less than 2 years during the period of 5 years immediately preceding the date of the furnishing of the application;
(f) the person is of good character;
(g) the person possesses a basic knowledge of the English language;
(h)the person has an adequate knowledge of the responsibilities and privileges of Australian citizenship; and
(j)if granted a certificate of Australian citizenship, the person is likely to reside, or to continue to reside, in Australia, or to maintain a close and continuing association with Australia
…
(4)For the purposes of the application of subsection (1) in relation to an applicant for the grant of a certificate of Australian citizenship:
…
(b)subject to paragraph (a), 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;
(ii)treat a period ending before the period of 5 years referred to in paragraph (1)(e), being a period during which the applicant was present in Australia as a permanent resident, as a period within that period of 5 years;
(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 otherwise than as a prohibited immigrant, as a prohibited non-citizen, as an illegal entrant, as an unlawful non-citizen, or in contravention of a law of a prescribed Territory, as a period during which the applicant was present in Australia as a permanent resident; or
(v)if the Minister considers that an applicant who is a permanent resident was, by reason of an administrative error, not a permanent resident during a period during which the person was present in Australia—treat the period as a period during which the applicant was present in Australia as a permanent resident.
…
(9)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:
…
(c)who is a permanent resident and is the spouse, widow or widower of an Australian citizen; or
…”
10. The Minister has also issued the Australian Citizenship Instructions (the Instructions) for the guidance of officers who are required to undertake duties in connection with the Act. The relevant parts of the Instructions for the purposes of this hearing are 4.3.33, 4.3.34 and 4.5 which provide:
“4.3.33 As a matter of policy, this discretion would usually only be exercised in one of the following situations of hardship or disadvantage:
• 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 him/her;
• the applicant would be excluded from travelling internationally because he/she cannot obtain a passport or because he/she is 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.
Residence discretion: Residence other than permanent residence (s13(4)(b)(iv))
4.3.34 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 applicant still has to satisfy the normal residence requirements of “2 years in 5” and “1 year in 2” and must be a permanent resident at the time of application.
• The discretion would normally only be exercised if the applicant has 12 months continuous permanent residence in Australia prior to the date of application.
• The discretion is only available for periods spent lawfully in Australia.
• This discretion is not available for periods when the applicant was in contravention of a law of a "prescribed Territory".
• See 4.3.33 for guidance on hardship or disadvantage.
…
4.5 Spouses, widows and widowers of Australian citizens s 13(9)(c)
4.5.1 Section 13(9)(c) gives a discretion to grant a certificate of Australian citizenship to a permanent resident who is the legal spouse, widow or widower of an Australian citizen.
4.5.2 Applicants are usually required to meet all of the following requirements:
• the applicant is a permanent resident;
• the parties are living together as husband and wife unless:
- the Australian citizen spouse has died; in this case, the couple must have been living together at the time the spouse died; or
- the applicant and the Australian spouse are estranged because of domestic violence.
Note: If the parties are not living together but claim that the marriage exists, the case should be decided by an officer at APS6 level or higher.
• the applicant is of good character (see Chapter 5);
• if the applicant is overseas, he/she intends to travel to Australia to live with the Australian citizen spouse;
• the applicant is likely, if granted a certificate of Australian citizenship, to reside, or to continue to reside, in Australia, or to maintain a close and continuing association with Australia (see 4.2.18 – 4.2.20);
• the applicant has a basic knowledge of the English language and an adequate knowledge of the responsibilities and privileges of citizenship, unless:
- the Australian citizen spouse has fulfilled these requirements and it is evident that there will be on-going support for the applicant spouse in these matters; or
- the applicant is estranged from the Australian citizen spouse because of domestic violence and it is evident that there will be on-going support for the applicant from an Australian citizen friend or relative who has fulfilled these requirements.
Note: If the applicant does not have this knowledge, the responsibilities and privileges of Australian citizenship (see 4.2.14 – 4.2.17) should be explained during the citizenship interview. If necessary, this should be done through an interpreter.
• the applicant has been present in Australia as a permanent resident for at least 2 years in the five years immediately before the application, at least 12 months of which must have been within the 2 years immediately prior to that date unless:
- the applicant has been a permanent resident in Australia continuously for the 12 months immediately prior to application and would otherwise suffer significant hardship or disadvantage (see 4.3.33 for guidance on hardship or disadvantage).
4.5.3 Spouses of Australian citizens who live overseas with their Australian citizen spouse, and are permanent residents of Australia may have difficulty meeting the residence requirements for citizenship. The primary policy objective underpinning the residence requirements is the development and maintenance of close and continuing ties with Australia. This policy objective can be achieved through the applicant's relationship with their Australian citizen spouse, children if any, extended family, and through return visits to Australia.
4.5.4 Spouses of Australian citizens would usually be eligible for grant of citizenship if they:
- are permanent residents of Australia;
- live or have lived overseas with their Australian citizen spouse because of the Australian citizen's work; and
- would have been eligible for citizenship if they were residing in Australia during that period.
4.5.5The occupation of the Australian citizen spouse is not relevant. However, evidence of the Australian citizen's spouse overseas employment is required, such as, a letter from the employer, including a statement that the non citizen spouse is accompanying them.
issues
11.The issues to be determined in this case are:
·Whether the applicant should be granted a Certificate of Citizenship even though she has not yet satisfied the residency requirements under s 13(1)(d) of the Act.
·Whether the applicant will suffer any significant hardship or disadvantage as a result of the refusal to grant citizenship such that a period of temporary residence should be treated as a period of permanent residence pursuant to s 13(4)(b)(iv) of the Act.
·Whether the Tribunal has the jurisdiction to consider the applicant’s application under the more general discretionary provision of s 13(9)(c) of the Act, even though the delegate did not refer to or consider that provision in making the decision.
·The extent to which the decision-maker is bound to abide by the Instructions in making a determination.
contentions
12. The applicant contends that the application for citizenship was a spouse application which should have been considered under the provisions of s 13(9)(c) of the Act and that the Tribunal has the discretion to now do so even though the delegate did not consider that provision.
13. The applicant contends that the Tribunal is not bound by the Instructions as they are a guide only and that in this case the Tribunal should use its discretion to grant citizenship to the applicant on the basis that she satisfies all but one of the criteria set out under the Instructions, that the underlying policy that an applicant establish a close and genuine connection with Australia is satisfied in this case and that there are circumstances in this case that would permit a departure from policy.
14. The respondent (the Department) focused on the issue of the applicant’s failure to fulfil the residency requirements provided for in s 13(1) of the Act. The Department contends that there can be no exception made to the residency requirements in this case as the applicant does not satisfy the requirement of s 13(4)(b)(iv) of the Act, namely “significant hardship or disadvantage” that enables a decision-maker to treat a period of temporary residence as a period of permanent residence for the purpose of satisfying s 13(1).
15. The Department accepted the applicant’s contention that the Tribunal could also consider the application under s 13(9)(c) of the Act. However, in that event the Department contends that there is nothing in this case that would allow the Tribunal to disregard the Instructions and the applicant fails to satisfy the residency requirements set out in part 4.5.2 of the Instructions.
16. There was no dispute with respect to the facts as outlined in paragraphs 1-5 (supra). It is common ground that the applicant satisfies all requirements for the grant of a Certificate of Citizenship save for the residency requirement.
the hearing
17.The applicant gave evidence as did her husband.
18. The applicant adopted as part of her evidence a statement signed by her and dated 3 November 2006. This document was received as Exhibit A1. The statement is comprehensive. It outlines her personal and family history, details of her life in Italy and how she came to be living there on a provisional resident visa. It deals with her relationship with her husband, her life in Australia and the difficulties that she has experienced since leaving Italy when travelling on her Albanian passport.
19. She elaborated on some of these matters in her oral evidence. She described how she was dealt with by the Italian tourist police when first departing Italy to travel to Australia in 2004. She described their attitude as quite hostile. She was singled out from other departing passengers. They demanded to see her Italian visa and made it clear to her that she could not return to Italy without a new visa as her existing visa was cancelled by her departure.
20. Upon arriving in Australia she was thoroughly searched at Customs. Her passport was taken away from her for a short while by Customs officials and she was questioned at length about the matters that she had already been questioned about at the consulate in Italy when she applied for her entry visa to Australia.
21. In early 2006 the applicant’s father was diagnosed with a brain tumour that required surgery. The applicant described a particularly close relationship with her father and she told him she would travel back as soon as possible to spend some time with him. She was initially advised that she must apply for a Schengen visa through the Italian Embassy in Albania. Because she holds only an Albanian passport, she has no right to an electronic visa that is automatically available to an Australian citizen travelling to Italy.
22. The difficulties she experienced in obtaining the visa are outlined in paragraphs 43 to 48 of her statement (Exhibit A1). It took approximately 3 weeks from the date of her application to receive the visa.
23. Because of her previous experience with the Italian tourist police she was apprehensive about travel. Her experiences upon departing Australia and upon arrival in Italy are outlined in paragraphs 52 and 53 of her statement.
24. Upon her return from Italy the Australian authorities singled her out for special attention and she was questioned and thoroughly searched.
25. She told the Tribunal that would like to be able to leave Australia at short notice and return to spend time with her family in Italy in the event of her father becoming seriously ill. He is no longer able to work and remains in poor health. The brain tumour, although benign, may move and there is the possibility of her father experiencing a sudden stroke or needing emergency surgery. Paragraphs 58 onwards of Exhibit A1 deal with that particular issue. A medical report that was an annexure to that exhibit confirms that the applicant's father is still not in good health. She has made a promise to her father that if he requires further surgery, she will ensure that she can be in Italy with him.
26. Since shortly after arriving in Australia the applicant has been in employment. She speaks four languages, and she would ultimately like to obtain employment with the Department of Immigration and Multicultural Affairs where she would hope to use her language skills.
27. She described the close ties that she has with her husband’s family in Australia. Her husband’s father remarried the applicant’s aunt and so she has familial links that go beyond marital links with her husband’s family. Her husband’s father, stepmother and siblings reside in Adelaide and his mother resides in Darwin.
28. She has no desire to ever return to Albania to live and she has no close family remaining in Albania. She has not been there for many years as her family moved to Italy when she was an early teenager.
29. Her husband, Toma, also gave evidence. He confirmed the applicant’s evidence about her experiences with border officials in Australia and Italy. He was present with the applicant on each occasion. He told the Tribunal that on each occasion, border police or customs officials showed no interest in him, but only in his wife as she was travelling on an Albanian passport.
30. He emphasised the extent to which his wife has become part of his extended family in Australia and how she also has developed close friendships with a number of his friends. He described the relationship between his family and his wife as being “ideal”.
31. He is currently working in the insurance industry. He described himself as ambitious and keen to progress his career. He has lived all his life in Australia.
findings of fact
32. The Tribunal had no hesitation in accepting as truthful the evidence of the applicant and her husband.
33. The Tribunal makes the following findings of fact in addition to the matters set out in paragraphs 1-5 (supra):
·Because the applicant travels on an Albanian passport she is subjected to greater scrutiny at the borders of Australia and Italy. Sometimes this scrutiny can be quite intimidating and the applicant feels insecure travelling on her Albanian passport.
·The applicant has a very close relationship with her father and she is genuinely concerned to be able to return to Italy on short notice, if required, to spend time with her father.
·If the applicant wishes to travel to Italy at present she must obtain a Schengen visa, and based on past experience it can take 3 weeks to obtain such a visa.
·Travellers with an Australian passport are entitled to enter Italy without obtaining a visa in advance. An automatic 60 or 90 day visa electronically issues upon their entry into Italy.
·The applicant has assimilated well into the Australian community and has a close and loving relationship with her husband and his family.
·The applicant has shown a commitment to developing a meaningful career in Australia. She works through an employment agency and she has regular full-time employment at the Commonwealth Bank where she is involved with settlements.
·The applicant has no close sense of connection with Albania having left there many years ago. She sees her future as being with her husband in Australia. She has no immediate family in Albania.
·The applicant’s father suffers from a condition that is severely affecting his health and which could result in him suffering a stroke at any time.
consideration
34. In this case the delegate determined the application under s 13(1) of the Act and spent some time considering whether the applicant’s failure to comply with the permanent residency requirement in s 13(1)(d) of the Act could be overcome by the use of the provisions in s 13(4). The delegate determined that the difficulties faced by the applicant were not sufficient to come within the phrase “significant hardship or disadvantage”. The Tribunal is satisfied, based on all the available evidence, that the delegate was correct in finding that the applicant could not argue “significant hardship or disadvantage” in this case.
35. The Tribunal is satisfied that the delegate should have considered the application under s 13(9)(c) of the Act. The applicant is the spouse of an Australian citizen and in her application at part F (T5/51) she indicated that her application was on “spouse grounds”.
36. The Tribunal is satisfied that although the decision-maker did not consider the application by reference to s 13(9)(c) of the Act, the Tribunal is entitled to do so.
37. Section 43(1) of the AAT act provides inter alia:
“For the purpose of reviewing a decision, The Tribunal may exercise all the powers and discretions that are conferred by any relevant enactment on the person who made the decision …”
38. Counsel has referred to authorities on that point and to the review of the authorities carried out by Conti J in Isaacs v Commissioner of Taxation [2005] FCA 832. It is established authority that once the Tribunal stands in the position of the decision-maker it has in the words of Kenny J in ASIC v Donald (2003)136 FCR 7:
“… all the powers and discretions that are vested in the original decision maker, provided that their exercise is only for the purpose of reviewing a decision that the Tribunal has power to review. …”
39. The Tribunal notes that s 13(1) confers a discretion that only arises upon certain criteria as set out in s 13(1) being satisfied. Section 13(9) does not contain a list of criteria and it is expressed in more general discretionary terms. Nevertheless the Instructions, the policy guide for the decision-maker, sets out a number of factors that should “usually” be satisfied before a spouse application is granted. A number of these factors are a repetition of aspects of s 13(1) of the Act.
40. Paragraph 4.5.2 of the Instructions is the relevant part for a delegate who is considering a citizenship application by reference to s 13(9) of the Act. There are seven bullet points under paragraph 4.5.2 of the Instructions. Paragraph 4.5.2 opens with the following statement:
“ Applicants are usually required to meet all of the following requirements …”
The use of the word “usually” indicates to the Tribunal that the Minister does not consider the policy requirements to be other than a guide to the criteria that the policy-maker should consider in such applications. By implication, the use of the word “usually” acknowledges that an applicant will not always satisfy the criteria.
41. In this case the applicant satisfies six of the seven criteria. The only one that she does not satisfy is the residence requirement which, although not specifically articulated in s 13(9), is contained in the Instructions. It a repetition of the residency requirement in s 13(1) of the Act.
42. In paragraph 4.5.3 of the Instructions there is a reference to the fact that spouses of Australian citizens who live overseas may have difficulty meeting the residence requirements for citizenship. Although that is not what the Tribunal is dealing with in this case, it is interesting to note the following policy statement as contained in paragraph 4.5.3:
“… The primary policy objective underpinning the residence requirements is the development and maintenance of close and continuing ties with Australia. This policy objective can be achieved through the applicant's relationship with their Australian citizen spouse, children if any, extended family, and through return visits to Australia.”
43. Policy statements are not binding on this Tribunal. The Tribunal must take policy into account and give appropriate weight to that policy. In Re Dainty and Minister for Immigration and Ethnic Affairs (1987) 6 AAR 259 Davies J commented [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.”
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.
45. The Tribunal is satisfied that in this particular case, it is acceptable to make an exception to the usual residency requirement that is seen to be an objective indicator of connection with this country.
46. The only country apart from Australia to which the applicant has any sense of connection is Italy. She left Albania many years ago and has only distant relatives in Albania. She has not visited Albania for many years and she has no reason to do so. Her immediate family reside in Italy and her teenage years were spent in Italy. By making the decision to marry and come to Australia she has lost the right to reside in Italy and must obtain a visa to visit Italy. It is currently easier for her Australian husband to gain entry to Italy than for her.
47. The applicant presents as a person of good character who is committed to her life in Australia, to her husband and to her extended family in Australia. She has settled well into the Australian community. She quickly found employment and has maintained full-time employment since shortly after coming to Australia. She presents as an intelligent woman with good linguistic skills. She appears to be ambitious about establishing a good career in Australia. In due course she hopes her language skills may result in her obtaining employment with the Government.
48. Her father, to whom she is devoted, is seriously ill. Her family are former refugees from Albania living in Italy. They are a close family. It was a wrench to her to leave her parents and siblings in Italy and move to Australia. She and her husband consider that their future prospects are better served in Australia. Her husband does not speak Italian and has an established career in Australia. She speaks fluent English and was able to find employment here, whereas her husband would not have had the same ease of transition into life in Italy.
49. The Tribunal is satisfied that the underlying policy objectives of the Instructions are satisfied in this case in that the applicant has established a real and close connection with Australia. The particular circumstances of her case including the possible need to return to Italy at short notice because of her father's illness and the current difficulties that she faces in travelling to Italy at short notice justify a grant of a Certificate of Citizenship in her case even though the residency requirements are not yet satisfied.
50. In the circumstances the Tribunal sets aside decision under review and substitutes the decision that the applicant should be granted a Certificate of Citizenship.
I certify that the 50 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member L Hastwell
Signed: ..............J Coulthard..........................................
AssociateDate of Hearing 28 November 2006
Date of Decision 13 December 2006
Counsel for the Applicant Mr S Ower
Solicitor for the Applicant Matthew Thompson & Associates
Counsel for the Respondent Mr P d'Assumpcao
Solicitor for the Respondent AGS
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