Joseph and Minister for Immigration, Multicultural and Indigenous Affairs [2002] AATA 100 (19 February 2002)

Last Updated: 15 March 2002

DECISION AND REASONS FOR DECISION [2002] AATA 100

ADMINISTRATIVE APPEALS TRIBUNAL )

) No Q2001/757

GENERAL ADMINISTRATIVE DIVISION )

Re GARETH JOSEPH

Applicant

And MINISTER FOR IMMIGRATION, MULTICULTURAL & INDIGENOUS AFFAIRS

Respondent

DECISION

Tribunal Mr K L Beddoe (Senior Member)

Date 19 February 2002

Place Brisbane

Decision The Tribunal decides: (a) the decision under review is set aside; (b) the discretion in section 13(4)(b)(iv) of the Australian Citizenship Act 1948 is exercised in the applicant's favour so that the permanent residence test is satisfied; (c) the matter is remitted to the respondent for reconsideration taking into account the said exercise of discretion; and (d) these proceedings have terminated in a manner favourable to the applicant.

. (Sgd) K L Beddoe

Senior Member

Decision No: 100/2002

CATCHWORDS

IMMIGRATION - Citizenship - periods of residence to qualify for permanent residence not satisfied - whether hardship or disadvantage suffered if not granted

Australian Citizenship Act 1948 s 13

REASONS FOR DECISION

19 February 2002 Mr K L Beddoe (Senior Member)

1. The Applicant applied for a grant of Australian citizenship pursuant to section 13 of the Australian Citizenship Act 1948 ("the Act").

2. That application was refused by the respondent (T19) and the applicant applied for review by this Tribunal (T1).

3. At issue in this case is the provisions in paragraphs 13(1)(d) and (e) relating to periods of residence in Australia to qualify as a permanent resident. There is no dispute that these provisions have not been satisfied.

4. However paragraph 13(4)(b)(iv) of the Act relevantly provides that the Minister may, in the Minister's discretion and where the Minister considers that the applicant would suffer significant hardship or disadvantage if a certificate of citizenship is not granted to the Applicant, treat a period during which the applicant was present in Australia as a period during which the applicant was so present as a permanent resident.

5. At the hearing Mr Boccabella appeared for the applicant and Mr Gallo appeared for the respondent. The documents lodged in the Tribunal pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 were before the Tribunal as the T documents and further documents tendered were marked as exhibits. Oral evidence was given by the applicant, his mother and an officer of the applicant's employer.

6. I make the following findings of fact.

7. The applicant is 39 years of age and was born in Sri Lanka. He was granted permanent resident status on 26 June 2001. He has lived in Australia for approximately two years six months, from 14 August 1998 to 6 September 2001 being 903 days residence in Australia out of a possible 1120 days ie approximately 2.5 years residence out of 3 years.

8. In 1979 and 1980 the applicant attended school in Charters Towers for years 11 and 12 education while his mother worked in Papua-New Guinea. The applicant's father died in 1978. The applicant's mother and brother live in Australia and are Australian citizens.

9. The applicant is employed by the Hotel Dynamics Group which conducts loyalty programs for international hotel chains around the world. The Hotel Dynamics Group is an Australian business with business commitments around the world. The applicant is employed as a program manager and is frequently required to travel at short notice on his employer's business.

10. Because the applicant has a Sri Lankan passport it is said, and I accept, that he experiences long delays and also diversions in travel because destination countries have visa issue procedures that apparently discriminate against persons travelling on a Sri Lankan passport. That is the conclusion to be drawn from the material before me. I am, however, aware that many factors may be taken into account before a country decides to issue a visa to a foreign national.

11. The applicant says, as does his mother, and his employer, and I accept, that it is easier to obtain visas to enter certain countries if the person seeking to enter that country has an Australian passport. Whether the table in Exhibit A is correct as to visa requirements I am unsure. It seems however that temporary entry visas obtainable upon entry to a country are more likely to be issued to an Australian passport holder than a Sri Lankan passport holder.

12. The applicant says, and I accept, that he has experienced embarrassing delays in obtaining visas and has also been required to travel to Sri Lanka to obtain a visa. The consequence has been that he has been delayed or unable to travel, in the course of his employment to the detriment of his employer. Further it is likely that he may have his employment with his present employer terminated because of these restraints on his ability to travel overseas at short notice (Exhibit D). In his oral evidence Mr Long, who is a senior program manager with the applicant's employer, said that it is difficult to place the applicant into the programs on a timely basis because of difficulties in obtaining relevant visas. Evidence was also given to the effect that an Indian employee with similar visa problems has had his employment terminated notwithstanding that he was a high performance Manager.

13. I am satisfied that the applicant has settled in Australia as a resident in the ordinary meaning of resident and that he is correctly described as a permanent resident.

Consideration

14. The respondent has issued guidelines which deal, interalia, with the exercise of discretion under paragraph 13(4)(b)(iv). Exhibit E is a copy of the guidelines effective from 1 November 2001. Paragraph 14.3.30 states:

"This discretion enables period of temporary residence in Australia to be counted as periods of permanent residence if the applicant would otherwise suffer significant hardship or disadvantage."

15. That general statement is then qualified in a number of ways but relevant to this case is the following:

"The discretion would normally only be exercised if the applicant has 12 months continuous permanent residence in Australia prior to the date of application."

16. Guidance on hardship and disadvantage is set out at paragraph 4.3.27 of the guidelines of relevance to this case is the first dot point which reads:

"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;"

17. That guidance appears in the context of the discretion in sub-paragraph 13(4)(b)(iii) which allows prior residence outside the five years period to be taken into account. That is not an issue here. It seems likely that the guidelines intend the guidance in paragraph 4.3.27 to also apply to the discretion in sub-paragraph 13(4)(b)(iv). While the guidelines do not say as much in view of the obvious problem with the last dot point in paragraph 4.3.30 it seems a reasonable inference that was the intention albeit that it is unexpressed.

18. I do not understand these guidelines to be intended to fetter the respondent's discretions as conferred on him by the Parliament. Rather they should be seen as guidelines for efficient and consistent administration of the discretions by the Minister's delegates.

19. The Tribunal's position in the context of ministerial guidelines was analysed and discussed in detail by the then President (Brennan J) in re Drake and Minister for Immigration and Ethnic Affairs (1979) 2 ALD 634. While much of what his Honour said is instructive in the context of this case I have had particular regard to the following passages at pages 642-3 as follows:

"It is one thing for the Minister to apply his own policy in deciding cases; it is another thing for the Tribunal to apply it. In point of law, the Tribunal is as free as the minister to apply or not to apply that policy. The Tribunal's duty is to make the correct or preferable decision in each case on the material before it, and the Tribunal is at liberty to adopt whatever policy it chooses, or no policy at all, in fulfilling its statutory function.

In fulfilling its function, the Tribunal, being independent of the Minister, is free to adopt reasoning entirely different from the reasoning which led to the making of the decision under review. But it is not bound to do so. Of course, the Tribunal would be in error to apply an unlawful ministerial policy to cases it decides, for an application of unlawful policy vitiates the consequential decision. That problem does not arise in the present case."

and at page 645:

"These considerations warrant the Tribunal's adoption of a practice of applying lawful ministerial policy, unless there are cogent reasons to the contrary. If it were shown that the application of ministerial policy would work an injustice in a particular case, a cogent reason would be shown, for consistency is not preferable to justice. Injustice, in the context of ss 12 and 13 of the Migration Act, must mean a disproportion between the detriment suffered by those affected by the execution of a deportation order and the benefit which might reasonably be expected to result to the community at large or to particular individuals in the community if the order were affirmed.

In my view, the Tribunal, being entitled to determine its own practice in respect of the part which ministerial policy plays in the making of Tribunal decisions, should adopt the following practice.

When the Tribunal is reviewing the exercise of a discretionary power reposed in a Minister, and the Minister has adopted a general policy to guide him in the exercise of the power, the Tribunal will ordinarily apply that policy in reviewing the decision, unless the policy is unlawful or unless its application tends to produce an unjust decision in the circumstances of the particular case. Where the policy would ordinarily be applied, an argument against the policy itself or against its application in the particular case will be considered, but cogent reasons will have to be shown against its application, especially if the policy is shown to have been exposed to parliamentary scrutiny."

20. In this case I am satisfied that it is more likely than not that the applicant will lose his current employment if he has to continue to rely on his Sri Lankan passport. It is clear to me that the applicant has a real need to be able to travel on an Australian passport. That is not however a sufficient ground for grant of Australian citizenship.

21. The applicant must satisfy the residence requirements himself or obtain a favourable exercise of discretion; in this case the discretion contained in sub-paragraph 13(4)(b)(iv).

22. I am satisfied that the very real prospect of losing employment in Australia is a disadvantage even more so than being refused employment. Where the prospective loss of employment is caused by the fact of not having an Australian passport, which in turn is caused by not being an Australian citizen, then the circumstances are clearly a severe disadvantage if the lack of a passport is the sole cause of the loss of employment.

23. I am satisfied and I find that those circumstances are made out in this case and those circumstances justify a favourable exercise of the discretion in sub-paragraph 13(4)(b)(iv). The applicant's residence in Australia prior to grant of permanent residence status should be taken into account to determine his eligibility for grant of citizenship as at the date of the Tribunal's decision. In coming to that conclusion I am satisfied that I have adopted the intent of the Minister's current guidelines.

24. The decision under review will be set aside. The Tribunal decides that the discretion in sub-paragraph 13(4)(b)(iv) is exercised in the applicant's favour so that, at the date of the Tribunal's decision, relevant periods during which the applicant was present in Australia prior to the grant of permanent resident status are to be treated as a period during which the applicant was present in Australia as a permanent resident.

25. The matter will be remitted to the respondent with a direction to reconsider the claim taking into account the Tribunal's favourable exercise of the discretion in sub-paragraph 13(4)(b)(iv) of the Act.

I certify that the 25 preceding paragraphs are a true copy of the reasons for the decision herein of Mr K L Beddoe (Senior Member)

Signed: .....................................................................................

Associate

Date/s of Hearing 19 December 2001

Date of Decision 19 February 2002

Counsel for the Applicant Mr Boccabella

Counsel for the Respondent Mr Gallo