WATAGODAKUMBURA And MINISTER FOR IMMIGRATION AND CITIZENSHIP

[2010] AATA 738

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2010] AATA 738

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No 2010/1478

GENERAL ADMINISTRATIVE DIVISION		)
Re		CHANDANA WATAGODAKUMBURA

Applicant

And MINISTER FOR IMMIGRATION AND CITIZENSHIP

Respondent

DECISION

Tribunal G. D. Friedman, Senior Member

Date6 September 2010

PlaceMelbourne

Decision The Tribunal affirms the decisions under review.

...................[signed].....................

Senior Member

ADMINISTRATIVE

APPEALS TRIBUNAL

MR G. D. FRIEDMAN, Senior Member

No. 2010/1478

WATAGODAKUMBURA

and

MINISTER FOR IMMIGRATION AND CITIZENSHIP

EXTRACT OF TRANSCRIPT OF PROCEEDINGS

MELBOURNE

MONDAY, 6 SEPTEMBER 2010

MR C. WATAGODAKUMBURA appears in person
MR W. SHARPE appears for the respondent

EXTRACT OF TRANSCRIPT OF PROCEEDINGS

MR FRIEDMAN:  The application before me is an application by the applicant, Dr Watagodakumbura, to resume Australian citizenship; and his application was refused by a delegate of the Minister, and he has sought review of that decision.  The relevant legislation is section 29(1) of the Australian Citizenship Act 2007 [the Act].  [Section] 29(1) states:

A person may make an application to the Minister to become an Australian citizen again.

And where a person ceased to become an Australian citizen under the current legislation rather than under the previous Act, which was the Australian Citizenship Act 1948, the relevant section is section 29(2) which provides that:

A person is eligible to become an Australian citizen again [under this Subdivision] if:

(a)       the person ceased to be an Australian citizen under:

(i)section 33 (about renunciation) in order to acquire or retain the nationality or citizenship of a foreign country, or to avoid suffering significant hardship or detriment…

And there is another subsection 2 which isn’t relevant, and that applies to children.  So the issue before me is whether the applicant satisfies subsection a(i) of subsection 29(2); in other words, did he renounce his citizenship of Australia to avoid suffering significant hardship or detriment?  That is the issue.

There is no dispute about the facts relating to the applicant’s background.  He came to Australia in 1998.  He had obtained a Bachelor’s degree in Sri Lanka.  When he came to Australia he studied a Master’s degree.  He went on to do a PhD in computer systems.  He studied at RMIT, and in between he did some work and then he studied full-time.  At the end of five years he had finished his PhD.  He worked at Monash University as a permanent ongoing employee at that university until in 2007.  There was a downsizing of the Faculty of Information Technology at Monash and he was made redundant.

Before this occurred, on 24 August 2006 he was granted Australian citizenship along with his family.  He looked for work after being made redundant from Monash University and the only position he could find was a 12-month contract in Cyprus; and in August 2007 he left Australia to take up that position in northern Cyprus.  He said that it wasn’t a totally satisfactory position in Cyprus, mainly because the language was Turkish and his older daughter, who was born in 2004, had some difficulty coping with the Turkish language.  He said that he completed ten months of the contract and from there moved to Sri Lanka in June 2008.

He said that he had become disillusioned with Australia because of the difficulty in finding work in Australia, and he knew he could find work in Sri Lanka which he did within a couple of weeks.  So from 1 July 2008 he took up a position with a university in Kandy, and that was his hometown where he had grown up and where he still had his parents, his wife’s parents and other family members present.  He said that he had some savings but his position as senior lecturer paid not a very high salary, and he calculated it was about $330 … dollars, Australian equivalent, in Sri Lankan rupees.

The applicant provided extensive evidence in writing and also giving oral evidence today that he found great difficulty in making ends meet in Sri Lanka.  Not only was his salary relatively low, but he said about 50 per cent of his monthly take home salary went on repayment of a car, even though it was a cheap car, a Chinese made 800cc hatchback car.  He said petrol was expensive.  Car insurance was expensive.  He also had to pay insurance, life insurance premium which was more than three months’ of his take home salary but he said, because there was no equivalent social security benefit in Sri Lanka, it was important that he take out this policy.

He also said things like utility bills – water, electricity, telephone, Internet – was about 25 per cent of his monthly salary, and he also had to pay 18 per cent of his salary for Montessori school fees for his older daughter; and, all in all, he found great difficulty in paying his bills.

This was notwithstanding that he didn’t have any rent to pay because he spent the first part of his time in Sri Lanka with his parents, and then the rest of the time with his wife’s parents so he didn’t have any rent to pay and, as I understand it, his parents and his wife’s parents contributed to his expenses and his wife and children’s expenses by way of giving them things, and food, and that sort of thing.  So he had family support and he had a full-time senior lecturer’s salary but he said that he still had great difficulty in meeting his basic expenses.  His wife was not able to work because of the age of the children at the time, and there was no family tax benefit or anything else of a similar nature he would have enjoyed had he been living in Australia.

He said that, as a consequence of his financial difficulties, he decided that he needed to access his superannuation in Australia.  The amount of super was about $50,000, and to do that he was told he had to renounce his Australian citizenship.  And on 2 December 2008 he made application to renounce his citizenship and he said in his application:

I am permanently residing in Sri Lanka and have no intention of returning to Australia.  As a result, I want to obtain my superannuation funds in Unisuper.

On 13 January 2009 his application to renounce his citizenship was approved and he obtained the proceeds of $50,000.  He said that of that, $10,000 was taken up in tax so he really only had $40,000 which he said he used to help his expenses, although he did concede that when he came back – he spent about $10,000 of that in Sir Lanka and [of] the rest of the money he lost some in currency conversion of about $8,000, and when he came back to Australia eventually he didn’t have much of the original $50,000 left.

He said that in August 2008 he applied for a permanent position, that is his own position which had been temporary, and he said six months had gone by and there was no interview for the position, and he decided to resign from the position.  He said in the meantime he had been working seven days a week and had been doing other jobs, weekends, as an academic, taking whatever work he could find in Sri Lanka.  However, he said that there was some difficulty in filling the position permanently with a – I think he described it as some politics within the university, which is not unknown in academic institutions, but he decided to resign from the job and look for other work in Sri Lanka.  And he said, coincidentally or not coincidentally, soon after he resigned they decided to interview for the position and he said that he was number one candidate and would probably have obtained the job.

However, by this time he had resigned and he did not feel that it was in his interests to pursue his application.  And he said, even had he been successful in gaining a full-time position, the one that he had been working on a casual basis or not – a temporary basis, rather, that would have involved a 25 per cent pay rise but he said even that would not have been sufficient.  Based on all the figures that he had provided to me, he said it would not have been sufficient to maintain the proper lifestyle in Sri Lanka.

So he decided with his family in August 2009 to return to Australia.  He said not only was it difficult to find a job, a proper job, in Sri Lanka but the social security system was better in Australia, and the children’s education would be far better in Australia, and he felt it was important for them to learn English which obviously they could do in Australia, but he said the public schools in Sri Lanka only taught Sinhalese and he said that was not satisfactory; and he said that, in fact, was the reason he sent his older daughter to a Montessori school at great expense to him so that she could at least learn English.

Now, when he returned to Australia in October 2009, he initially lived in Sydney with a family member but found the rent was too high in Sydney so he moved to Melbourne and looked for casual work, and he found some work and at the moment has a number of casual positions where he is working for several universities.  His wife has resumed her studies for her Master’s degree.  She is not working at the moment because the younger child is about three years old and is at home with her mother, and the older child has started school, primary school, in Craigieburn.

He applied for resumption of his Australian citizenship on 28 October 2009 and the Minister’s delegate refused his application on 27 March 2010.  In answer to a question from me about what he would do if his application today was unsuccessful, he said that he had been told by an officer of the Department of Immigration and Citizenship that he could make a new application in October 2010, which is about a month away, but whether he would meet the eligibility requirements is something that he is not sure about and, indeed, Mr Sharpe, representing the respondent today, wasn’t sure about; and it is certainly not appropriate for me to pursue that at this stage because it’s not for me to determine something that is a matter for the department.  But it seems clear that at least the applicant is able to lodge a new application in October this year.

Now, applying the facts of this matter to the relevant legislation, which I have already said was section 29(2)(a)(i), about whether he renounced citizenship to avoid suffering significant hardship or detriment, I was taken to the explanatory memorandum for the legislation which gives a background of the previous Act which was section 23AA, AB, A and B, and the explanatory memorandum says:

The resumption provisions within the old Act … have been combined into … subclauses (2) and (3).  The eligibility [criteria] under these subsections has been expanded from the old Act to provide for those who renounce[d] the[ir] Australian citizenship for reasons of hardship or detriment (for example, in order to obtain … security clearance to secure employment in the country of their other residence) to resume their Australian citizenship.

And I have also been taken to two relevant decisions of this Tribunal:  Re Skase[and Minister for Immigration and Multicultural and Indigenous Affairs] [2005] AATA 308, and Re Postiglione[and Minister for Immigration and Multicultural Affairs] [2002] AATA 37. In the case of Re Skase, the Tribunal noted that in interpreting the power under the relevant section of the Act one must look at the context of the Act as a whole.  And in Re Postliglione, the Tribunal said that in exercising the discretion, the decision-maker had to look at the subject matter and the scope of the legislation, and also refer to the significance of holding Australian citizenship.

So the question really is, does the applicant in this case meet the provisions of significant hardship and detriment?  I say at the outset that there is nothing in the applicant’s evidence today that has been really contested in a significant way in terms of the costs of living in Sri Lanka at the time, and there is no reason for me to doubt the figures provided by the applicant for the cost of the car and the cost of the life insurance and the cost of the Montessori School were wrong, and I accept those figures.

And although it might seem surprising to someone in Australia that a senior lecturer with a PhD, working full-time in his own country, would have financial difficulties, it seems a little hard to comprehend but I accept the applicant’s evidence to the extent that things weren’t easy.  Whether it was because of the conflict in Sir Lanka at the time or just the fact that the cost of living had gone up, I accept that life was difficult for him notwithstanding that he was living with parents the whole time he was there and had their ongoing support by way of accommodation and other things that they were doing to help the family.

I also take into account that, although the applicant in this case wanted his child to attend Montessori School for a perfectly reasonable reason, that was a choice that he made; to send his child to the Montessori School.  It was fairly expensive but it was nevertheless a discretionary expenditure on his part, and that’s a decision that he and his wife made at the time to send the child to a school that taught English but, in my view, it was a choice that they made.

Similarly, although I accept the applicant’s evidence that getting from his home in Kandy to the university would have been difficult by bus, far more difficult than … in Australia getting the same distance, it is, once again, a decision he made to buy the car and to maintain the car at a significant expense.  And I accept his evidence that buying a second-hand car in Sri Lanka is fraught with difficulties because there is probably limited warranties, if any, and the cost of maintaining a second-hand car might prove to be more expensive than a new car; I accept that.  But given the financial situation that the applicant found himself in, then, in my view, buying a car at all was a discretionary expenditure that he chose to make.

And, once again, I have already said I can understand the reason that he bought a car, but he was in financial difficulty and buying a car for the costs that have been put to me was a choice that he made and, even though it might have taken longer on the bus to get to work, it would have been possible to get to work.  In my view, the word “significant” as in “significant hardship and detriment” needs to be looked at in terms of the Australian citizenship instructions, and the examples given in the instructions are:

-   a requirement to pay higher taxes;

-   denial of, or significant difficulty in obtaining, permanent employment;

-   denial of, or significant restrictions on access, to social security benefits;

-   inability to access loans from financial institutions;

-   [ineligibility] to purchase or retain property;

…

Now, they are not an exhaustive list but I am required to take into account, obviously, where appropriate – and, in my view, the policy in the Australian citizenship instructions is appropriate – and none of those matters apply in this case and I don’t believe, on all the evidence before me I don’t believe that the financial circumstances that the applicant found himself in could be categorised as significant hardship.  And, once again, I appreciate that he didn’t find it easy but, given that he was working full-time and he had the family support, it seems to me that he wasn’t suffering significant hardship, bearing in mind, once again, that those discretionary expenditures that I have just referred to were made by him.

I also note that, in answer to a question from me, the applicant stated that he spent $10,000 of his superannuation in Sri Lanka so he didn’t spent all his superannuation.  That, to me, indicates that he must have been able to manage, at least to some degree.  If he wasn’t able to, then it seems to me he would have spent all his money which he didn’t do … but that’s not the only consideration I have to take into account.

As pointed out by Mr Sharpe, representing the respondent, and looking at the cases that have been cited to me, Australian citizenship is an important thing to have and it’s not something that is given away lightly and that is to me, looking at the whole of the legislation which I believe I am required to do, giving up Australian citizenship needs to look at the precise provisions of the Act.  And the reason that the applicant gave for renouncing citizenship was to access his superannuation and, in my view, that is a separate step from using the money to avoid significant financial hardship or detriment.

So that when you look at the reasons set out in the legislation and in the explanatory memorandum, and the Australian citizenship instructions, this provision of the Act about resuming citizenship requires the applicant to have renounced his citizenship in order to avoid the suffering of the financial hardship or detriment, and I don’t believe that accessing the superannuation comes within that.  To me, an example of the application of this section of the Act would be where a country says to a person, “You cannot get a job, you cannot get a house, and you cannot do a number of things after what is listed in the Australian citizenship instructions because you have citizenship of, say, Australia.”  Thereby renouncing citizenship would be a way of avoiding the significant financial hardship and detriment that would flow from the suffering that a person would endure by holding Australian citizenship.

So it’s not just a question, in my view, of saying, “Well, I am in financial difficulty, I will renounce my citizenship to get some money to reduce my financial difficulty.”  It is stronger than that.  It is a matter of saying, “Well, I had to renounce my citizenship because, without that, I would have suffered so much by reason of not being able to do certain things.”  In this case, although I found that the applicant was in financial difficulty, that, to me, is not sufficient to say that it comes within the provisions of the Act.  And as I have said, furthermore, I don’t believe that he suffered significant financial hardship or detriment anyway.

So for those reasons – that is his reason for renouncing citizenship being to access his superannuation which I believe is too remote from his financial position; and, secondly, because I don’t believe he was suffering significant financial hardship or detriment, despite his difficulty financial circumstances; and, thirdly, because the Act says, quite specifically in my view, that renunciation has to be to avoid the suffering which I don’t believe he would have complied with in any case – I find that he does not satisfy subsection 29(2)(a)(i) of the Act and, consequently, there is no reason for me to consider subsection 30 of the Act which gives discretion to grant citizenship.  And for those reasons, I affirm the decision under review.

END OF EXTRACT