Zhuryn and Minister for Immigration and Multicultural and Indigen Ous Affairs

[2003] AATA 882

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2003] AATA 882

ADMINISTRATIVE APPEALS TRIBUNAL      )

)           No   W2002/443

GENERAL ADMINISTRATIVE DIVISION		)
Re		AIGUL ZHURYN

Applicant

And MINISTER FOR IMMIGRATION MULTICULTURAL AND INDIGENOUS AFFAIRS

Respondent

DECISION

Tribunal   Ms G Ettinger, Senior Member

Date8 September 2003

Place  Perth

Decision  The Tribunal affirms the decision under review.

.......…...(sgd. G Ettinger)......................

Senior Member 

CATCHWORDS

IMMIGRATION AND CITIZENSHIP - Citizenship - Discretion to grant citizenship to spouse of Australian citizen - Nature and purpose of discretion in s 13(9) - Ministerial policy guidelines for the exercise of the discretion - Whether Applicant has close connection with Australia - Length of residence in Australia - Whether Applicant intends to reside in Australia - Whether significant hardship or disadvantage if not granted citizenship.

LEGISLATION

Australian Citizenship Act 1948 - ss 13(1), 13(9)(c)

Australian Citizenship Instructions

CASE LAW

Re Wong and Minister for Immigration and Ethnic Affairs (1996) 41 ALD 672

Re Dainty and Minister for Immigration and Ethnic Affairs (1987) 6 AAR 259

Street v Queensland Bar Association (1989) 168 CLR 461

Australian Iron and Steel Pty Ltd v Banovic (1989) 168 CLR 165

Styles v Secretary, Department of Foreign Affairs and Trade and Another (1988) 16 ALD 234

Re Lee and Department of Immigration and Ethnic Affairs (1988) 10 AAR 270

Taechaubol and Minister for Immigration and Multicultural Affairs [2001] AATA 425

Witham v Witham [2000] WASC 236

Commonwealth v Verwayen (1990) 170 CLR 394

Re Abdel-Razek and Department of Immigration and Ethnic Affairs (AAT 10653, 12 January 1996)

Raymond Sze Ling Tan and Department of Immigration and Multicultural Affairs [1998] AATA 890

Re Ho and Minister for Immigration and Ethnic Affairs (1994) 34 ALD 664

Re Liu and Minister for Immigration and Multicultural Affairs [1999] AATA 251

Re Hou and Minister for Immigration, Multicultural and Indigenous Affairs [2002] AATA 242

Re Ishri and Minister for Immigration and Ethnic Affairs (AAT 9748, 16 September 1994)

Sacharowitz v Minister for Immigration, Local Government and Ethnic Affairs (1992) 33 FCR 480

Eskaya v Minister for Immigration, Local Government and Ethnic Affairs (1989) 18 ALD 217

Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634

Re Kao and Minister for Immigration and Ethnic Affairs (1993) 30 ALD 916 (excerpt) (AAT 9162, 7 December 1993)

REASONS FOR DECISION

8 September 2003  Ms G Ettinger – Senior Member

1. The application before the Administrative Appeals Tribunal (“the Tribunal”) was that of Ms Aigul Zhuryn (“the Applicant”), for review a decision of a delegate of the Department of Immigration, Multicultural and Indigenous Affairs, (“the Respondent Department”), dated 23 October 2002 (T4), refusing to exercise its discretion in favour of a grant of citizenship to her, pursuant to section 13(9) of the Australian Citizenship Act1948 (“the Act”). The Applicant sought the exercise of the discretion in that section of the Act on the basis of being the spouse of an Australian citizen.

2.       Ms Zhuryn who did not attend the hearing, was represented by her husband, Mr Anthony Nat Manzi, and the Respondent by Ms C Wallwork, solicitor of Blake Dawson Waldron Lawyers. 

ISSUE BEFORE THE TRIBUNAL

3. The issue before the Tribunal was whether the discretion in section 13(9) of the Act to grant Australian Citizenship should be exercised in Ms Zhuryn’s favour because of her marriage to an Australian citizen.

4. In determining this, the Tribunal had to have regard to the relevant provisions of the Act, and the Ministerial Policy which guides the exercise of this discretionary power.

LEGISLATIVE CONTEXT

5.Section 13 of the Act provides, as far as relevant:

“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 or continuing association with Australia.

...

13(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:

(a)        ...

(b)        ...

(c)who a permanent resident and is the spouse, widow or widower of an Australian citizen; or

(d)        ...”

australian citizenship instructions

6.The Australian Citizenship Instructions (“the Citizenship Instructions”) set out policy guidelines (“the Guidelines”) approved by the Minister which have been prepared to assist delegates of the Respondent in exercising powers under the Act.

“4.5     SPOUSES, WIDOWS AND WIDOWERS OF AUSTRALIAN CITIZENS s 13(9)(c)

4.5.1Section 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 partner 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 lived in Australia as a lawful permanent resident for one year and would otherwise suffer significant hardship or disadvantage (see 4.3.33 for guidance on hardship or disadvantage).

4.5.3Spouses of Australian government officials overseas, who if not for the posting overseas would have been eligible for grant of Australian citizenship would usually be eligible for grant of citizenship under this provision (ie, decision makers may be able to treat periods spent overseas as a permanent resident towards this residence requirement).

4.5.4The occupation of the spouse is not relevant except where it might relate to the points above – eg, suffering significant hardship or disadvantage.

4.3.16The legislation provides for discretion to waive part or all of the residence requirements in certain circumstances, outlined below.

4.3.33As 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.

(j)        Likely to reside etc (s 13(1)(j))

4.2.18The applicant must be likely, if granted citizenship, to reside or continue to reside in Australia or to maintain a close and continuing association with Australia (s 13(1)(j)).

4.2.19If an applicant expects to leave Australia within 12 months after applying for grant of citizenship, the decision maker should ascertain how long the applicant intends to be away from Australia.

•If the absence is likely to be more than twelve months, the applicant should be asked to indicate the reason for the intended absence and how they intend to maintain their association with Australia, eg, family, employment, business or other interests.

•The length of the applicant's period of residence in Australia to date should be taken into consideration.

4.2.20If the decision maker is not satisfied that the applicant meets this requirement, the application should be deferred or refused as appropriate. (see 3.4(c) - 3.4(d)).

(k)       Applicants outside Australia (s 13(1A))

4.2.21Subsection 13(1A) provides that the Minister shall not grant a certificate of Australian citizenship to a person under s 13(1) at a time when the person is not present in Australia unless:

•          the person is a permanent resident (see 1.4); and

•the Minister considers that the person is engaged in activities outside Australia that are beneficial to the interests of Australia.  Guidance on assessing this is given in 4.3.17.

4.2.22In certain circumstances, a spouse of an Australian citizen (see 4.5) or an adopted child of an Australian citizen (see 4.4) may also be granted Australian citizenship while overseas.

4.2.23An applicant overseas might also seek the use of the discretion in s 13(4)(b)(i) to treat periods spent overseas as a permanent resident towards the residence requirements. This discretion will not normally be used while the applicant is overseas (see 4.3.20).

4.2.24Except in the above circumstances, if an application is made in Australia and the applicant departs before it is decided, the application should be deferred under s 14, unless there are other reasons for refusing the application such as failure to meet the residence requirements (see 3.4(d)).”

THE EVIDENCE

7. The Tribunal had before it the documents provided by the Respondent pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 as Exhibit R1, and the following other Exhibits.

Item	Date	Exhibit
Applicant's Statement of Facts and Contentions	21 February 2003	Exhibit A1
Applicant's Supplementary Statement of Facts and Contentions	1 May 2003	Exhibit A2
Applicant's Outline of Oral Argument	5 May 2003	Exhibit A3
Supplementary documents pursuant to section 37 of the Administrative Appeals Tribunal Act 1975	Exhibit R2
Respondent's Statement of Facts and Contentions	25 March 2003	Exhibit R3

8.       The Tribunal also had before it a document dated 7 May 2003, prepared by Mr Manzi, and headed “Applicant’s Reply to the Authorities Cited by the Respondent at the Hearing dated 5 May 2003”, and a letter dated 19 May 2003 in which the Respondent indicated it did not intend to reply to the above-named submission of Mr Manzi.

BACKGROUND

9.       Ms Zhuryn did not attend the Hearing as she was not in Australia at the time of the Hearing.  She was represented by her husband, Mr Manzi.

10.     The Tribunal noted from the documents that Ms Zhuryn, whose date of birth is 1 February 1968, and who is a citizen of the Republic of Kazakhstan, married Mr Manzi on 8 January 1999.  On the basis of this marriage, Ms Zhuryn was granted a permanent resident visa (Sub-Class 100), on 10 December 2001, (T15).  At the time of the Hearing, she had spent only 81 days in Australia since 2001.  Ms Zhuryn applied for a grant of citizenship on 9 May 2002  (T8 and T15), which was refused on 23 October 2002 (T4).

11.     The Applicant appealed to the Tribunal on 15 November 2002, (T2), submitting in an accompanying document that the Respondent had failed to give genuine and realistic consideration to the merits of her case, and alleging that the application of the Guidelines was inappropriate. Submissions put on behalf of Ms Zhuryn alleged further that the Guidelines were discriminatory to a class of Australian spouses (and applicant spouses), who resided outside Australia and were not Australian Government officials overseas. In that document, Ms Zhuryn also raised both emotional and financial hardship upon which Mr Manzi elaborated both in his oral and written submissions.

THE APPLICANT’S CASE

12.     Taking into account both the extensive written material (including case law) which Mr Manzi presented, and his oral evidence and submissions, the Tribunal understands the case presented by Mr Manzi on behalf of Ms Zhuryn to be as follows:

·     The Respondent failed to give proper and realistic consideration to the merits of the Applicant’s case which is an unusual case, and has given reasons which are “misconceived and/or untenable”.

·     The Respondent failed to demonstrate a readiness to depart from policy, “applying instead, a series of fairly precise requirements which constitute a fetter on the exercise of the discretion …”.

·     The Respondent failed to direct himself properly in law by calling his own attention to matters which he is bound to consider.

· Section 13(9)(c) of the Act looks primarily not to hardship or disadvantage as set out in the Citizenship Instructions, but to family connections. Family connections are very relevant to the exercise of the discretion in section 13(9)(c) of the Act. (Re Wong and Minister for Immigration and Ethnic Affairs (1996) 41 ALD 672 and Re Dainty and Minister for Immigration and Ethnic Affairs (1987) 6 AAR 259).

·     Mr Manzi argued that the primary case the Applicant was making was one of discrimination, in particular as related to what he termed the discriminatory residency criteria required for a grant of Australian citizenship. Mr Manzi argued that it was “indirect or adverse effect discrimination”, (Street v Queensland Bar Association (1989) 168 CLR 461 and Australian Iron and Steel Pty Ltd v Banovic (1989) 168 CLR 165), in particular as applied to his and his wife’s situation which mirrored that of a class of persons living and working overseas. He argued that he had been practicing his engineering profession overseas for some 17 years, and continued to do so from his base in London. He emphasised the importance of his assignments, papers he had written, and conferences attended, and said that he had been required to travel to Kazakhstan in connection with an oil industry project in 1996, and it was there that he had met his wife. Mr Manzi gave evidence that neither he nor his wife had permanent residency in England, nor owned real estate there, and that he had significant financial obligations in Australia arising from his previous marriage (divorce having taken place in 1998), which he expected would continue for the next few years. In connection with the discrimination argument, Mr Manzi cited statements of Government Ministers and case law (Exhibit A3). Mr Manzi submitted that the law on the issue of discrimination was stated in Styles v Secretary, Department of Foreign Affairs and Trade and Another (1988) 16 ALD 234 and in Australian Iron and Steel Pty Ltd v Banovic (supra).  Mr Manzi also submitted, by reference to Re Lee and Department of Immigration and Ethnic Affairs (1988) 10 AAR 270, that the individual circumstances of each case had to be considered, noting that Gray J had stated in that case, that “the circumstances of a particular case may render it inappropriate to apply a policy which may be applied without difficulty in the majority of cases.”

·     Mr Manzi submitted that his wife had a close and continuing relationship with Australia, as detailed in the Supplementary Statement of Facts and Contentions (Exhibit A2). In reply to questions asked in cross examination, Mr Manzi told the Tribunal that he had not lived in Australia since 1985, as he had been recruited in that year to undertake an important airline assignment in Hong Kong.  After 1989/90 and the end of his first marriage, his children were his priority, he said. Mr Manzi said that his children had met Ms Zhuryn on one occasion in London, and once at his mother’s funeral in Australia. In support of the issue of family relationships, Mr Manzi said that he and Ms Zhuryn stayed with his father whenever they visited Perth.  He referred to paragraph 5 of Exhibit A2 in which he had mentioned the case of Taechaubol and Minister for Immigration and Multicultural Affairs [2001] AATA 425, a case where the Tribunal had exercised the discretion favourably to grant citizenship, because the Applicant had family in Australia. Ms Zhuryn was similarly placed through his own family, he submitted.

·     Mr Manzi submitted that both Ms Zhuryn and her Australian husband would suffer significant hardship or disadvantage if she were to be denied Australian citizenship.

·     As an alternative to the argument alleging discrimination, Mr Manzi submitted that he and his wife would suffer significant hardship or disadvantage if citizenship were not granted to her. He submitted that his work and his financial commitments meant that he had to live in London, and given their domicile in England, the couple was subject to significant expense, stress, anxiety and inconvenience as they were required to travel to Australia every six months so that Ms Zhuryn could obtain a visa to be able to continue to live with her husband in London. There was always a risk the visa might not be granted, he submitted, and the alternative of a two-year separation was unthinkable in view of the couple’s relationship, and their plan to start a family, he said. Mr Manzi told the Tribunal that he had to accompany Ms Zhuryn to Canberra to assist her with her application, which was costly, noting also that the Applicant was undertaking English studies in London. Mr Manzi agreed in reply in cross-examination that Ms Zhuryn could apply for a visa for England by returning to Kazakhstan instead of to Australia. When asked regarding Ms Zhuryn’s plans if the couple should return to Australia, Mr Manzi said that their first priority was to have children, (and they had been trying for two to three years without success yet), noting also that his wife would like to continue her work as a classical pianist, and perhaps teach music. There were however currently no plans to relocate to Australia.

·     Mr Manzi said that he too had to leave England  and re-enter in order to obtain a visa. He cited Witham v Witham [2000] WASC 236 and Commonwealth v Verwayen (1990) 170 CLR 394 as cases where it had been held that an inconvenience could amount to a detriment or significant disadvantage. Mr Manzi told the Tribunal in reply to cross-examination that he was away from home in London on business approximately 50 percent of the time, and that his wife accompanied him approximately 90 percent of the time.

· Mr Manzi cited the following cases where he noted that the discretion to grant citizenship had been exercised pursuant to section 13(9)(c) of the Act: Re Dainty and Minister for Immigration and Ethnic Affairs (supra), Re Lee and Department of Immigration and Ethnic Affairs (supra), Re Abdel-Razek and Department of Immigration and Ethnic Affairs (AAT 10653, 12 January 1996).

THE RESPONDENT’S CASE

13.The Respondent submitted as follows:

· The Guidelines were relevant to the exercise of the discretion to refuse Ms Zhuryn’s application for citizenship pursuant to section 13(9) of the Act.

·     Noted the citing by the Applicant at paragraph 21 of Exhibit A1 of the case Re Lee and Department of Immigration and Ethnic Affairs (supra), in particular the statements of Gray J regarding the separate discretionary powers in section 13(1) and 13(9) of the Act. Gray J stated (pages 275-276):

“… it is open to the Minister or his delegate to consider whether an applicant under s 13(9) has such a close connection with Australia as to warrant the grant of citizenship. In considering that question, the Minister or his delegate may take into account quite properly questions such as whether the applicant has lived in Australia, and if so for what period or periods, and whether applicant would suffer hardship or disadvantage if not granted citizenship. In that sense, some of the considerations expressed elsewhere in the section may be taken into account properly in the exercise of the discretion under s 13(9).

There can be no sound objection to a policy requiring such matters to be taken into account. A policy which sets inflexible criteria, however, would constitute a fetter upon the discretion under s 13(9), if the Minister or his delegate took the view that he or she was bound by the policy. The circumstances of each case must be taken into account, an a decision-maker must always be ready to accept the proposition that the circumstances of a particular case may render it inappropriate to apply a policy which may be applied without difficulty in the majority of cases.  To require every applicant under s 13(9)(c) to have lived in Australia as a lawful permanent resident continuously for one year, as a condition of the grant of citizenship, would be an inappropriate way of determining whether every such applicant’s connection with Australia was sufficiently close.”

·     Ms Wallwork cited paragraph 22 of Raymond Sze Ling Tan and Department of Immigration and Multicultural Affairs [1998] AATA 890 submitting that there were no circumstances in relation to Ms Zhuryn which would indicate a departure from the situation as noted therein. Paragraph 22 of Tan (supra) follows as relevant:

“I noted that in Re Ho (supra) Deputy President McMahon stated at paragraph 28 in relation to sub-section 13(9) of the Citizenship Act:

“The wording of section 13(9) gives no indication of the basis upon which the minister’s discretion ought to be exercised in the case of a person who is a spouse of an Australian citizen. The “instructions” however, set out quite detailed rules that must serve for guidance. As the wording of the section is so sparse, it cannot be said that any of the guidelines relating to this particular subsection are in conflict with the Act. I see no reason why the weight normally given to guidelines should be withheld in the present circumstances. In those cases where the guidelines were found to be unsuitable … the circumstances were quite anomalous. There is nothing in the present facts to indicate that a departure from the guidelines would be appropriate.”

· Ms Wallwork submitted that Ms Zhuryn did not meet the residential requirements of section 13(1) of the Act, but that, pursuant to section 13(1)(A), activities beneficial to Australia could be taken into account, emphasising, however, that none had been demonstrated by Ms Zhuryn.

·     Ms Wallwork submitted that the Citizenship Instructions at ST1/22, dealt with the situation of spouses of Australian citizens. She indicated however that the evidence had been that Ms Zhuryn had no intention of coming to live in Australia, and was not likely to reside in Australia within the next two to three years. In that connection she referred to paragraph 31 of Re Ho and Minister for Immigration and Ethnic Affairs (1994) 34 ALD 664 where Deputy President McMahon had affirmed the decision not to grant citizenship on the basis that Mr Ho did not meet the requirements of section 13(1)(j) of the Act because he could not be satisfied that if granted citizenship, Mr Ho was likely to reside, or continue to reside in Australia, or to maintain a close and continuing association with Australia. Ms Wallwork submitted that on the basis of the evidence, (meeting Mr Manzi’s children once in England and once at the funeral of his mother in Australia), Ms Zhuryn had virtually no association with Australia. Ms Wallwork submitted it was questionable whether Mr Manzi himself had a close relationship with Australia. She conceded that it was feasible Mr Manzi could assist Ms Zhuryn with her English.

·     Ms Wallwork submitted that where the Applicant could not meet the residential requirements, then hardship could be a ground for the exercise of the discretion to grant citizenship. She referred the Tribunal to paragraph 31 of Re Liu and Minister for Immigration and Multicultural Affairs [1999] AATA 251 where the Tribunal had held that no significant hardship or disadvantage had been demonstrated in a case where the Applicant had had to obtain visas for travel.

·     Ms Wallwork referred to Mr Manzi’s submission that emotional hardship had not been addressed by the decision-maker who refused Ms Zhuryn citizenship, and indicated to the Tribunal that the issue had been addressed at page 8 of Exhibit R1.  She noted that hardship had also been addressed in the cases of Re Wong (supra), Re Hou and Minister for Immigration, Multicultural and Indigenous Affairs [2002] AATA 242 and Re Liu (supra).  Ms Wallwork submitted that it was Mr Manzi’s choice that he travelled 50 percent of the time in connection with his work, and suggested he could incorporate trips to Canberra within that.

·     As to the issue of discrimination; Ms Wallwork submitted that any separation the couple might experience was a choice of lifestyle, did not qualify for hardship within the ambit of the legislation, and did not arise from the lack of grant of Australian citizenship.  She asked that the Tribunal affirm the decision under review.

THE TRIBUNAL

14.     In coming to the correct and preferable decision regarding whether the discretion to grant Ms Zhuryn Australian citizenship should be exercised, the Tribunal had to take into account the documents before it, the oral and written evidence and submissions, as well as the relevant case law and legislation.  In that regard the Tribunal noted from Mr Manzi’s extensive and detailed written submissions that he had cited many cases from the international arena, several from industrial jurisdictions which do not have direct application in Ms Zhuryn’s case.  Accordingly those considered irrelevant to this matter have not been addressed in these reasons for decision.

application of the citizenship instructions and guidelines

15.     The Tribunal first considered the issue of the Citizenship Instructions and Guidelines, noting that they have been relied on in a number of cases in this Tribunal. (See Re Ho (supra), Re Ishri and Minister for Immigration and Ethnic Affairs (AAT 9748, 16 September 1994) and Re Abdel-Razek and Department of Immigration and Ethnic Affairs (AAT 10653, 12 January 1996)).

16. The Tribunal noted that Ms Zhuryn’s application was made pursuant to section 13(9) of the Act because as accepted by Mr Manzi, she could not qualify for the residency requirements of section 13(1) of the Act.

17.     The Tribunal noted the submissions made by Mr Manzi and his referral of the Tribunal to the decision of Sacharowitz v Minister for Immigration, Local Government and Ethnic Affairs (1992) 33 FCR 480 in which Burchett J considered policy guidelines relating to the then s 6A(1)(b) of the Migration Act1958..  In the course of that decision, Burchett J referred to the judgment of Fox and Franki JJ in Howells v Nagrad Nominees Pty Ltd (1982) 66 FLR 169 which contained the following statement:

“The interface between policy and discretion in the exercise of statutory powers is a difficult one ... No one test can be articulated for all cases.

Where the power given relates to the consideration of individual cases, it is not to be denied that the predominant aspect must be the consideration of the particular case.  The merits of that case must be considered genuinely and realistically; there must always be a readiness to depart from policy.  The policy does a dis-service to those who have to measure it against the individual situation if it is expressed in dogmatic or mandatory terms. 

The term “policy” is itself difficult of definition.  What it does not include is a series of fairly precise requirements.”

18.     Mr Manzi’s submission continued, stating that in Sacharowitz (supra), Burchett J found that the policy guidelines there under consideration contained a series of fairly precise requirements which, in applying the law as declared by the Full Federal Court in Howells (supra), had to be read down if possible. Mr Manzi submitted that Burchett J suggested that the guidelines in paragraph 4.2.7 of the Citizenship Instructions should be read down and regarded as validly setting out matters of policy rather than requirements which would fetter the exercise of the discretion. Mr Manzi added that Burchett J considered that the decision-maker should exhibit a readiness to depart from policy, and not impose a hurdle on an applicant to get over, of which the Act said nothing.

19.     Mr Manzi also referred the Tribunal to the case of Eskaya v Minister for Immigration, Local Government and Ethnic Affairs (1989) 18 ALD 217 in which he submitted Lee J set aside a decision which treated a policy as having a more compelling effect than which was contained in the statement which follows:

“A statement of policy may not be applied in the same manner as a statutory list of disqualifying events without regard to the Act or the merits of the case. Normally, such statements of policy are intended to operate as guidelines under which a range of significant matters to be addressed by decision-makers is detailed and some indication is given as to the weight that may be attached to certain elements.”

20.     The Tribunal was mindful also of the submissions of the Respondent that the Citizenship Instructions and Guidelines be applied, and its reliance on Raymond Sze Ling Tan v Department of Immigration and Multicultural Affairs (supra), and Re Ho and Minister of Immigration and Ethnic Affairs (supra).

21. The Tribunal noted the submissions of the parties and was mindful that the nature of the discretion conferred by section 13(9)(c) of the Act was discussed by Gray J sitting as a Presidential Member of the Tribunal in Re Lee and Department of Immigration and Ethnic Affairs (supra). Gray J stated (at page 275):

“There can be no doubt that the two discretionary powers found in s 13(1) and s 13(9) are separate and distinct.  Each subsection from (2) to (8) makes it clear that one or more of the requirements of subs (1) is being modified.  Subsection (9) is in the form of a new discretion ... Whereas subs (1) commences with the words “subject to this section”, subs (9) is expressed only to be “subject to subsection (11)”.  This is a clear indication by the legislature that the requirements of subs (1) do not have to be satisfied by an applicant for citizenship under subs (9). ...

It is also clear that s 13(9) involves an exercise of discretion.  The mere fact of marriage to an Australian citizen does not give a right to a grant of Australian citizenship; it only gives a right to seek the exercise of the discretion.”

22.     The Tribunal agreed and was guided by Re Lee and Department of Immigration and Ethnic Affairs (supra), noting that the discretion in section 13(9)(c) of the Act is an independent and unfettered discretion. The Tribunal considered it therefore appropriate that the Minister has developed Guidelines in relation to the exercise of that discretion. In Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634, Brennan J expressed the reasons for adopting guiding policies, and the need for the policy to be consistent with the statute at 640 and 641:

“There are powerful considerations in favour of a Minister adopting a guiding policy.  It can serve to focus attention on the purpose which the exercise of the discretion is calculated to achieve, and thereby to assist the Minister and others to see more clearly, in each case, the desirability of exercising the power in one way or another.  Decision-making is facilitated by the guidance given by an adopted policy, and the integrity of decision-making in particular cases is the better assured if decisions can be tested against such a policy. ...

Of course, a policy must be consistent with the statute.  It must allow the Minister to take into account the relevant circumstances, it must not require him to take into account irrelevant circumstances, and it must not serve a purpose foreign to the purpose for which the discretionary power was created.  A policy which contravenes these criteria would be inconsistent with the statute ... .

… There is a distinction between an unlawful policy which creates a fetter purporting to limit the range of discretion conferred by a statute, and a lawful policy which leaves the range of discretion intact while guiding the exercise of the power.”

23. To assess whether the policy guidelines are consistent with the Act in relation to the exercise of the discretion in section 13(9)(c), it is necessary to determine the purpose of the discretion.

24. Section 13(9)(c) of the Act requires the Minister to determine whether or not to grant a certificate of Australian citizenship to the spouse of an Australian citizen. The purpose of the discretion and the matters to be considered in the discretion were noted by Gray J in Re Lee and Department of Immigration and Ethnic Affairs (supra). Gray J said (at 275):

“…it is open to the Minister or his delegate to consider whether an applicant under s 13(9) has such a close connection with Australia as to warrant the grant of citizenship. In considering that question, the Minister or his delegate may take into account quite properly questions such as whether the applicant has lived in Australia, and if so for what period or periods, and whether the applicant would suffer hardship or disadvantage if not granted citizenship. In that sense, some of the considerations expressed elsewhere in the section may be taken into account properly in the exercise of the discretion under s 13(9).”

25. The purpose of the section 13(9)(c) discretion was also considered by Davies J, sitting as President of this Tribunal, in Re Dainty and Minister for Immigration and Ethnic Affairs (supra). He said at 268, “s 13(9) looks primarily not to hardship or disadvantage as set out in the Ministerial guidelines but to family connections.” Davies J summarised the family connections of the applicant in that case and then stated:

“Such matters are not mentioned by the guidelines but they are, in my opinion, relevant and weighty matters for the purpose of the s 13(9) discretion.”

26.     The Tribunal was satisfied applying the law as stated in Re Drake and Minister for Immigration and Ethnic Affairs (supra), and Re Lee and Department of Immigration and Ethnic Affairs (supra), that it could apply the Citizenship Instructions and the Guidelines, and that it could go beyond these in considering the exercise of the discretion under section 13(9)(c) of the Act. The Tribunal was mindful also that the individual circumstances of each case had to be taken into account (Re Lee and Department of Immigration and Ethnic Affairs (supra)). Accordingly, the Tribunal had to take into account those factors which it considered relevant to the exercise of the discretion in this particular case, including the Applicant’s family, social and business connections in Australia, as well as the matters referred to in the Guidelines, to decide whether or not the Applicant has established such a case as to warrant the grant of citizenship. To this end, following the approach of Gray J in Re Lee and Department of Immigration and Ethnic Affairs (supra), some of the considerations expressed elsewhere in section 13, and particularly s 13(1) were able to be taken into account.

exercise of the section 13(9)(c) discretion in the applicant’s circumstances

27. The Tribunal considered section 13(9)(c) of the Act, and the Citizenship Instructions, in particular the clauses from 4.5 on which deal with the situation of spouses of Australian citizens.

28. In that regard, and in consideration of the conditions stated in clause 4.5.2 of the Citizenship Instructions, the Tribunal was mindful that Ms Zhuryn has had the status of permanent resident of Australia since December 2001, and that she lives with her husband, Mr Manzi in London, and travels with him. She has never resided continuously in Australia since the grant of permanent residence (or at all). Indeed from December 2001 to the time of the Hearing, Ms Zhuryn had spent only 81 days in Australia, and accordingly, the Tribunal was satisfied that the Applicant has spent considerable periods of time outside Australia, and cannot qualify for citizenship pursuant to section 13(1) of the Act.

29.     It was not questioned by the parties, and accepted by the Tribunal that Ms Zhuryn is of good character.  The Tribunal accepted also that Ms Zhuryn had some knowledge of English, is studying English in London, and that in any case, Mr Manzi would provide support to and for her.

30.     However, with regard to a return to Australia; Mr Manzi told the Tribunal that the couple did not have plans to return to Australia in the next few years, because of the nature of his work, and the lesser income he could earn here as compared to that he earned outside of Australia. He indicated he had commitments with regard to his first marriage which he willingly assumed, at least for the next few years.

31.     The Tribunal noted Mr Manzi’s evidence that although the couple resides in London, they do not own real estate there. Mr Manzi told the Tribunal that he travels 50 percent of the time and that his wife accompanies him approximately 90 percent of the time.  However, (even though Ms Zhuryn could renew her visa in Kazakhstan), they return to Australia every six months in order for her to renew her visa in Canberra, and they stay with Mr Manzi’s father whenever they are in Perth.

32. Accordingly, the Tribunal considered whether Mr Manzi or Ms Zhuryn’s business or social activities contribute to Australia or enhance their ties with Australia, noting that Senior Member Hotop (as he then was), considered this question in relation to the discretion found in s 13(4)(b)(i) of the Act. In Re Kao and Minister for Immigration and Ethnic Affairs (1993) 30 ALD 916 (excerpt) (AAT 9162, 7 December 1993), he stated:

“The Tribunal accepts that activities involving the promotion and arrangement of the exportation of Australian commodities are beneficial to the Australian national economy and are, accordingly, beneficial to the public interest of Australia as a whole.”

33.     Unfortunately, from the evidence he gave, the Tribunal could only conclude that Mr Manzi’s work is for his own benefit, and not Australia’s.

34.     The Tribunal noted that Deputy President Purvis in Re Wong (supra), recognised that the Applicant in that case had strong family connections in Australia (his wife and children were domiciled here), and decided that Mr Wong was engaged in activities in Hong Kong which in a general way could be said to be of benefit to Australia.  However, Deputy President Purvis noted that despite the strong family connections, the Applicant had spent considerable periods of time outside Australia, and had the intention to continue to do so over the next few years.  The Applicant in that case did not satisfy the Tribunal that he would suffer any significant hardship or disadvantage if not granted Australian citizenship, and was refused the grant.

35.     The Tribunal noted Mr Manzi’s reference to Taechaubol (supra) as to close relationships with Australia, and found that that case could be distinguished on the facts given Mr Taechaubol had his family in Australia, owned real estate, and did business in connection with Australian principals. The Tribunal could not on the basis of the evidence given of Ms Zhuryn having met Mr Manzi’s children twice, and on the basis of short visits to Perth when they stayed with his father, find that Ms Zhuryn had a close relationship with Australia. Indeed it would be hard to consider Mr Manzi himself had, although of course that does not need to be determined because he is an Australian citizen.

36.     The Tribunal also considered the submissions made on behalf of the Applicant alleging significant hardship or disadvantage.  The Tribunal looked to the case law and clause 4.3.33 of the Citizenship Instructions with regard to the interpretation of hardship or disadvantage.

37.Hardship or disadvantage in clause 4.3.33 is characterised as follows:

·     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 to be selected to represent Australia in a national representative team/group;

·     ...

38.     The Tribunal considered clause 4.3.33 as to hardship or disadvantage to Ms Zhuryn, noting Mr Manzi’s submissions regarding the stress, cost and uncertainty of travelling either to Kazakhstan or Australia every six months to re-apply for a visa for England. The Tribunal noted, applying clause 4.3.33, that there was no question of discrimination in employment due to Ms Zhuryn being a non-citizen of Australia, neither that she had restrictions travelling with her present passport, and was mindful that the issue of representing Australia in a national team was irrelevant to this application. There was no evidence before the Tribunal that the Applicant suffers any discrimination when travelling with her family overseas as a result of the difference in their nationalities.  Even if such evidence had been brought, it cannot be said that having to wait longer at an overseas airport or having to apply for a visa amounts to anything more than inconvenience (Re Wong (supra)).

39.     On the basis of the above, the Tribunal concluded that no evidence was presented that the grant of Australian citizenship would relieve any hardship or disadvantage which the Applicant may suffer, and that it was the couple’s choice to live outside Australia.

40.     As to discrimination against a class of persons living and working overseas; the Tribunal noted the arguments put by Mr Manzi, and concluded it had applied the legislation and Ministerial Policy without fetter, and taking into account the particular circumstances of Ms Zhuryn’s case. The Tribunal noted that cases such as Australian Iron and Steel Pty Ltd v Banovic and Others (supra), and Secretary Department of Foreign Affairs and Trade v Styles and Another (supra), were cases dealing with employment, and had no application here. Based on the material before it, the Tribunal was unable to discern any discrimination as claimed, and of course the Tribunal must apply the law as it stands. Any changes to legislation must be made by the Parliament.

DECISION

41. On the balance of the material presented to the Tribunal, the Tribunal was not satisfied that the discretion in section 13(9)(c) of the Act should be exercised favourably in the Applicant’s case.

42.     The Tribunal affirms the decision under review.

I certify that this and the 42 preceding pages are a true copy of the decision and reasons for decision herein of the Senior Member, Ms G Ettinger

Signed:          C. Gregson

Associate

Date/s of Hearing  5 May 2003
Date of Decision  September 2003
Representative of Applicant            Mr Anthony Nat Manzi (husband)

Solicitor for the Respondent  Ms C Wallwork, Blake Dawson Waldron  Lawyers