Yiu and Minister for Immigration and Multicultural and Indigenous Affairs
[2006] AATA 52
•20 January 2006
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2006] AATA 52
ADMINISTRATIVE APPEALS TRIBUNAL )
) No N2005/263
GENERAL ADMINISTRATIVE DIVISION ) Re PATRICK YIU Applicant
And
MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
Respondent
DECISION
Tribunal Senior Member MD Allen Date20 January 2006
PlaceSydney
Decision The decision under review is affirmed.
(Sgd) M D Allen
..............................................Senior Member
CATCHWORDS
CITIZENSHIP – applicant the holder of a permanent resident’s visa – Minister’s discretion – whether applicant engaged in activities beneficial to the interests of Australia – test refers to an existing benefit as opposed to a prospective benefit – decision under review affirmed.
Australian Citizenship Act 1948; s.13
Re Ho & Minister for Immigration and Ethnic Affairs (1994) 34 ALD 664
Minister for Immigration, Local Government & Ethnic Affairs v Roberts (1993) 41 FCR 82
Re McCarthy & Minister for Immigration, Local Government & Ethnic Affairs (1993) 30 ALD 447
Re Pai & Minister for Immigration & Ethnic Affairs (1994) 35 ALD 762
Skoljarev v Australian Fisheries Management Authority (1995) 39 ALD 517
REASONS FOR DECISION
Senior Member MD Allen 1. Doctor Patrick Yiu (the Applicant) is a cardiothoracic surgeon practising in the United Kingdom and holding United Kingdom citizenship. On 30 June 2004, he applied for Australian citizenship which application was refused. On 28 February 2005, he applied to the Administrative Appeals Tribunal for review of that decision.
2. At the time of his application for Australian citizenship, the Applicant had completed a period of 12 months training in his medical speciality at the Royal Prince Alfred Hospital, Sydney (RPA Hospital), and was the holder of a permanent resident’s visa granted in 1995 subsequent to his parents and his sister having migrated to Australia.
3. The relevant legislation is s 13 of the Australian Citizenship Act 1948 (as amended) (the Act). That section reads inter alia:
(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;
…
(1A) The Minister shall not grant a certificate of Australian citizenship to a person under subsection (1) at a time when the person is not present in Australia unless:
(a)The person is a permanent resident; and
(b)The Minister considers that the person is engaged in activities outside Australian that are beneficial to the interests of Australia.
…
(4)For the purposes of the application of subsection (1) in relation to an applicant for the grant of Australian citizenship:
(a)…
(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.
…
4. There is no dispute between the parties as to the facts in this matter. The circumstances of the Applicant were succinctly set out by Mr R B Wilson of Counsel who appeared for the Applicant, in his written submissions, namely:
1.The Applicant is the holder of a permanent resident’s visa granted to him under the Migration Act 1958. His parents and his sister migrated to Australia from Hong Kong. The Applicant’s current visa is limited in that it will expire on 30 June 2009.
2.In September 1975, when the family was still living in Hong Kong, the Applicant’s parents sent him to England to study, at 10 years of age. The Applicant’s sister followed a similar course. In July 1983 the Applicant commenced medical studies in England, graduating with a B.Sc. degree in 1986 and an M.B.B.S. in 1989.
3.In 1989 the family members were granted permission to migrate to Australia. At this time the Applicant had just completed his M.B.B.S. and was undertaking post graduate training in surgery at Basingstoke Hospital. On 27.12.89, the Applicant made a formal entry into Australia so as to comply with his visa conditions. He then returned to England to continue in his post-graduate training position.
4.In 1991, whilst still undertaking post graduate training, the Applicant decided to pursue a career as a cardiothoracic surgeon and attaining the position of a Consultant in this field. This required him to complete his FRCS and then undertake a 6 year training period as a Specialist Registrar. He completed this process in March 2005.
5.Part of this advanced 6 year training program was completed in Australia between July 2003 and June 2004 when the Applicant was offered a post at the Royal Prince Alfred Hospital in Sydney. The Applicant then returned to the United Kingdom to complete the remainder of this 6 year training and examination regime.
5. The Applicant’s mother still resides in Sydney, his father having died in 2004. I accept that the Applicant’s mother’s ill health is a strong incentive for him to take up residence in Australia.
6. Following his period of consultancy training at RPA in 2003 – 2004, the Applicant returned to the United Kingdom. The reasons for this are set out at paragraph 11 of Exhibit A2 and the essential points are that the Applicant was familiar with the system in England and was well known by those who decided whether he be offered particular training programs or not. Positions were available and accessible to him and it was the quickest course to complete his studies and join his parents in Australia. In addition, the Applicant was aware that Australian doctors had in the past come to England to advance their studies and that his medical qualifications were not recognised in Australia without further training and examination save for his consultancy qualifications.
7. In addition, as pointed out by the Applicant, he had received advice that it would maximise his qualifications for an appointment as a cardiothoracic consultant in Australia if he first built up a practice in the United Kingdom and was thus able to demonstrate his competency. As he was offered such a post in the United Kingdom and such posts are not readily available, he took it but is currently making inquiries regarding the obtaining of a similar position in Australia.
8. Exhibit A9 is a Statement of Agreed Facts. It had been proposed to take evidence from the Applicant by telephone, but unfortunately he was engaged in an emergency surgery procedure at the relevant time. Exhibit A9 demonstrates that the Applicant is making ongoing inquiries regarding a position as a cardiothoracic consultant in Australia.
9. In addition to these inquiries, the Applicant has property in Australia and his mother also has property which will pass to him upon her death.
10. That the Applicant and his wife have an intention to take up permanent residence in Australia was not challenged by the Respondent. Whilst I note that the Applicant’s sister is also now resident in the United Kingdom as the holder of a permanent resident’s visa, the Applicant can up until the year 2009, return to Australia without restrictions.
11. The Respondent, very properly, conceded that the Applicant has met the test in paragraph 13(1)(d), namely that he has been in Australia as a permanent resident for a period of not less than one year in the period of two years immediately before his application.
12. Both parties agree that the Applicant has not met the test in paragraph 13(1)(e), namely being present in Australia as a permanent resident for an aggregate period of not less than two years in the period of five years immediately preceding his application for citizenship.
13. It was not in dispute that in all other respects, the Applicant met the qualifications for citizenship.
14. For his part the Applicant states that the Tribunal should exercise the discretion permitted by paragraph 13(4)(b)(i) of the Act, namely that during the time he had permanent resident status and was outside Australia he was engaged in activities that were beneficial to the interests of Australia.
15. Central to the Respondent’s argument is that the discretion should not be exercised is its submission that paragraph 13(4)(b)(i)(C) is in present tense; ie that the activities undertaken overseas are to be beneficial to Australia at the time they are undertaken. It is not sufficient that the activities might benefit Australia at some future time.
16. The Applicant submitted that he had already been engaged in activities beneficial to Australia in that Australian citizens benefited from his training and expertise gained in the United Kingdom when he was a trainee cardiothoracic surgeon at RPA Hospital.
17. I agree that Australian citizens did benefit from his overseas gained training and skills at that time but that is not the test. The test refers to beneficial activities in a period the Applicant was not resident in Australia.
18. As pointed out by Deputy President McMahon in Re Ho & Minister for Immigration and Ethnic Affairs (1994) 34 ALD 664 at 670, the only judicial consideration of the phrase “activities beneficial to Australia” is the discussion by Einfeld J in Minister for Immigration Local Government & Ethnic Affairs v Roberts (1993) 41 FCR 82. At p 87 his Honour said:
It seems to me that the term activities beneficial to the interests of Australia means something in the nature of activities which provide 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.
19. His Honour however went on to add by way of explanation:
… But it is quite another matter as to whether the construction of rigs in the United Kingdom and Brunei represent any such benefit, still less whether Mr Roberts work as a rigger at those places was advantageous to this country. To reach such conclusions, some evidence would have been required demonstrating the benefits propounded. For example, if the person concerned was studying or using new techniques or materials with a view to introducing them to Australian construction, or if he was taking Australian technology to these places, the benefits would be established. If it was established that experiences overseas increased the particular person’s chances for remunerative work and advancement in the industry in Australia, a relevant advantage may well be evidenced. Even if the particular person paid Australian tax on the wages earned in such places, Australia might derive some benefit. …
20. That discussion would seem to indicate a prospective benefit is within subparagraph 13(4)(b)(i)(C). However I consider that these comments are strictly obiter and that the ratio of the case is in the passage first referred to above.
21. That the test in paragraph 13(4)(b)(i)(C) is that the activities undertaken overseas must confer a benefit to Australian interests at the time they are being undertaken has been accepted by decisions of this Tribunal post-Roberts, namely Re McCarthy & Minister for Immigration, Local Government & Ethnic Affairs (1993) 30 ALD 447 and Re Pai & Minister for Immigration & Ethnic Affairs (1994) 35 ALD 762.
22. The use of the words “an objective benefit” by Einfeld J in Roberts (supra) also seems to refer to a present existing benefit rather than a prospective benefit.
23. A reference to the second reading speech of the then Minister when the amended s 13 was introduced into the citizenship Act by the Australian Citizenship Amendment Act 1983, does not throw any light on the question as to whether paragraph 13(4)(b)(i)(C) has a temporal limit.
24. The reasoning of the AAT in the matters of McCarthy and Pai (supra) is consistent with the policy of the Respondent as published in the Australian Citizenship Instructions. At Chapter 4 of those instructions, paragraph 4.3.20 states inter alia:
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.
25. The adoption of policy and in particular departmental policy by this Tribunal has been discussed in numerous cases, see for example the discussion by Davies J in Skoljarev v Australian Fisheries Management Authority (1995) 39 ALD 517 commencing at p521. Suffice it to say that unless cogent reasons exist to the contrary, a policy enunciated in documents such as the Australian Citizenship Instructions should be followed by this Tribunal.
26. Not only the policy of the Respondent but also the authorities in this Tribunal require that any benefit to Australia must accrue at the time the activities are undertaken. Even if a prospective benefit were to be considered at present, that there will be any benefits to Australia is speculative.
27. I accept that the Applicant has applied for positions in Australia but there is no evidence that he has been successful to date. I further accept that he has a present intention to return to Australia but considerable time may elapse before he does manage to obtain a suitable position if at all. It is not inconceivable that the Applicant’s current intention to return to Australia may, through force of circumstances, change. Thus even if a future benefit was to be considered, I find that the Applicant has not shown that the likelihood of any such benefit presently exists.
28. I find therefore that as there is currently no benefit accruing to Australia from the Applicant’s overseas activities nor is there any prospective benefit as an objective fact, the best or preferable decision in this matter is that the decision under review be affirmed.
I certify that the 28 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member M D Allen
Signed: (E.Pope) .....................................................................................
AssociateDate of Hearing 15 December 2005
Date of Decision 20 January 2006
Counsel for the Applicant Mr R.B. Wilson
Solicitor for the Applicant Peter Leung Solicitors
Solicitor for the Respondent Clayton Utz Lawyers
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