Goodman and Minister for Immigration and Multicultural Affairs [2002] AATA 40 (14 January 2002)

Last Updated: 5 February 2002

DECISION AND ORAL REASONS FOR DECISION [2002] AATA 40

ADMINISTRATIVE APPEALS TRIBUNAL )

) No S2001/166

GENERAL ADMINISTRATIVE DIVISION )

Re DOUGLAS PETER GOODMAN

Applicant

And MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

Respondent

DECISION

Tribunal Senior Member WJF Purcell

Date 14 January 2002

Place Adelaide

Decision For the reasons given orally at the hearing of this matter, the Tribunal affirms the decision under review.

(SIGNED)

..............................................

WJF PURCELL

(Senior Member)

CATCHWORDS

IMMIGRATION & CITIZENSHIP - Residency requirements - Activities beneficial to the interests of Australia

Section 31 Australian Citizenship Act 1948

Re McCarthy and Minister for Immigration, Local Government and Ethnic Affairs (1993) 30 ALD 447

Fraser v Minister for Immigration, Local Government and Ethnic Affairs S91/205

Minister for Immigration, Local Government v Ethnic Affairs v Roberts (1993) 41 FCR 82

DECISION AND ORAL REASONS FOR DECISION

14 January 2002 Senior Member WJF Purcell

1. This is an application for review of a decision of a delegate of the respondent (the Department) dated 4 April 2001, which refused a grant of citizenship to the applicant pursuant to the Australian Citizenship Act 1948 (the Act) on the basis that the applicant did not satisfy the residency requirements of section 13(1)(d) and (1)(e) of the Act.

2. The evidence before the Tribunal comprised the documents lodged pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 (the T documents), together with exhibits tendered by the applicant, who appeared on his own behalf with the assistance of his father, Dr Goodman. Mr Telfer appeared for the Department.

3. The applicant was born on 31 July 1974 in the United Kingdom and continues to be a citizen of the United Kingdom. He came to Australia with his parents in July 1976, when he was two years old. He remained permanently in Australia until September 1996, when he travelled to New Zealand to undertake Veterinary Science studies. He is a permanent resident of Australia, and holds a resident return visa valid until 12 June 2005.

4. The applicant is a graduate of Flinders University in science, and was unable to obtain a place in a mainland university to pursue a second degree. Although not a citizen of Australia he could not be regarded as an overseas fee paying student. The only alternative available to him was to obtain a place at a New Zealand university. He completed his degree in December 2001, and returned to Australia on 21 December 2001.

5. On 5 September 2000 the applicant lodged an application for the grant of Australian citizenship.

6. The applicant had applied for consideration of the resident's exemption under section 13(4)(b)(i) of the Act and sought the exercise of the Minister's discretion to treat periods of residence outside Australia as periods during which he was engaged in activities "beneficial to Australia", and therefore as a period during which he was present in Australia for the purposes of Section 13(1) of the Act.

7. Section 13(1) of the Act provides:

"(1) Subject to this section, the Minister may, in the Minister's discretion, upon application in accordance with the approved form, grant a certificate of Australian citizenship to a person who satisfies the Minister that:

(a) the person is a permanent resident;

(b) the person has attained the age of 18 years;

(c) the person understands the nature of the application;

(d) the person has been present in Australia as a permanent resident for a period of, or for periods amounting in the aggregate to, not less than one year during the period of 2 years immediately preceding the date of the furnishing of the application;

(e) the person has been present in Australia as a permanent resident for a period of, or for periods amounting in the aggregate to, not less than 2 years during the period of 5 years immediately preceding the date of the furnishing of the application;

(f) the person is of good character;

(g) the person possesses a basic knowledge of the English language;

(h) the person has an adequate knowledge of the responsibilities and privileges of Australian citizenship; and

(j) if granted a certificate of Australian citizenship, the person is likely to reside, or to continue to reside, in Australia, or to maintain a close and continuing association with Australia."

"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 Australia that are beneficial to the interests of Australia."

8. Section 13(4)(b)(i) of the Act provides:

"(4) For the purposes of the application of subsection (1) in relation to an applicant for the grant of a certificate of Australian citizenship:

...

(b) subject to paragraph (a), the Minister may, in the Minister's discretion:

(i) treat a period during which the applicant:

(A) was a permanent resident;

(B) was not present in Australia; and

(C) was engaged in activities that the Minister considers beneficial to the interests of Australia;

as a period during which the applicant was present in Australia as a permanent resident;

..."

9. A delegate of the Department refused the application on 4 April 2001, on the basis that the applicant did not meet the residence requirements of the Act. In the course of her Statement of Reasons the delegate stated in part:

"Mr Goodman has applied for consideration of the residence exemption under section 13(4()(b)(I).

Mr Goodman claims that his qualification gained overseas will be beneficial to Australia by way of his contributions to future Australian employers and consequently, to Australia (given the lack of veterinarians willing to practise in rural areas of Australia). 4.5.11 of the policy guidelines provides that the activities must have been 'beneficial to the interests of Australia' during the relevant period/s. The provision will not apply on the basis of future benefits potentially accruing to Australia (McCarthy AAT case). Any future benefits arising from Mr Goodman's overseas studies cannot therefore be considered for the purposes of section 13(4(b)(i).

Citizenship policy provides that when assessing whether activities are beneficial to the interests of Australia, the following should be considered:

It requires '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...and means more than the private interests of the applicant. The section requires some objective benefit to Australia'. (Federal Court in Roberts).

I find that this overseas study Mr Goodman has undertaken over a number of years is wholly and principally for his own reward and benefit. Not for the benefit of Australia. This is not the sort of activity of a public nature contemplated by section 13(4)(b)(i) of the Citizenship Act.

...

I understand that Mr Goodman has had a long association with Australia having arrived in Australia at the age of two in 1976. His period of residence overseas during the past five years is only temporary in nature. The fact remains that the residence requirements are contained in the Citizenship Act and to count the period of residence overseas as time spent in Australia, the applicant must have been engaged in activities beneficial to the 'interests of Australia'. This is also a legislative requirement and therefore not flexible.

I have also considered this application under section 13(4)(b)(ii) of the Act - that is, to count periods of residence earlier than five years before application.

Whilst Mr Goodman would not meet the policy requirements for this decision, considering his lengthy association with Australia, I would recommend that this discretion be used 'outside of usual policy guidelines'. This discretion however can only be used towards the '2 years in 5' residence requirement. This discretion does not apply to the '1 year in 2' residence requirement. Mr Goodman would therefore still not satisfy section 13(1)(d).

This application does not meet sections 13(1)(d) and 13(1)(e) of the Australian Citizenship Act 1948.

I am not satisfied, on the evidence presented, that Mr Goodman has been and is currently involved in activities outside of Australia which are beneficial to the interests of Australia." [T1/12-13]

10. The applicant contends that the necessity for him to travel overseas to pursue a second degree was a direct result of his permanent residency status in Australia; as he could not qualify as an overseas fee paying student. At no time was he given any information by the Department regarding his rights to apply for citizenship, and it was only when he applied for citizenship in September 2000, after 24 years in the country, that he became aware of the residency requirements.

11. The applicant submits further that Australia is desperately short of veterinarians, and the newspaper articles he has tendered would support this claim. His activities in New Zealand, his studying of New Zealand Veterinary Science, will be of benefit to Australia. He paid Australian taxation on the money he earned in New Zealand; became an ambassador, creating goodwill for Australia in New Zealand, and in general terms, his education in New Zealand is for the long term benefit of Australia.

12. The Department maintains that the applicant does not satisfy section 13(1)(d)(i) of the Act, (the 1 in 2 year residency requirement), falling short of this requirement by 256 days. He does not satisfy section (13(1)(c)(ii) of the Act, (the 2 in 5 year residency requirement), falling short of this requirement by 63 days. In addition, for the discretion outlined in section 13(4)(b)(i) of the Act to be exercised, the applicant must show that his New Zealand studies in veterinary science are 'beneficial to the interests of Australia' during the relevant period, namely, the 5 years and/or 2 years prior to the application; and the discretion does not apply on the basis of future benefits potentially accruing to Australia. The benefit identified by the applicant, namely, a shortage of veterinary surgeons in rural Australia is a future benefit to Australia and not one which attracts the exercise of the discretion. It relies on McCarthy v Minister for Immigration, Local Government and Ethnic Affairs (1993) 30 ALD 447.

13. The Department submits finally, that in order for activities to be beneficial to the interest of Australia they must be beneficial to the public interests of Australia. The applicant must demonstrate this in an objective manner. It relies on Sydney Fraser v Minister for Immigration, Local Government and Ethnic Affairs S91/205 and Minister for Immigration, Local Government v Ethnic Affairs v Roberts (1993) 41 FCR 82.

14. It is not in dispute that the applicant fulfils the remaining requirements of section 13(1) of the Act. The interpretation of the expression: Activity......beneficial to the interests of Australia was addressed by Einfeld J in Roberts in the following terms, at page 87,

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.

The importance to Australia of the Australian oil industry cannot be doubted. Although there was no evidence in this case on the specific importance of the construction of oil rigs, it was reasonably open to the Tribunal to find that oil rig construction, as an intrinsic part of the Australian industry, is itself a benefit to Australia. 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. Unlike the Tribunal, I regret being unable to see the nexus between Mr Roberts' overseas work and our natural resource and employment policies. I therefore cannot agree that the two conclusions reached by the Tribunal in this connection addressed relevant issues as defined by the statute.

15. In this matter, the activities undertaken overseas were undergraduate studies, completed successfully in December 2001. Despite Dr Goodman's earnest submissions as to the benefit his son's course of study will bring to the straightened veterinary science field in Australia, I do not consider that the activities undertaken by the applicant can be regarded as "activities beneficial to Australia" in accordance with Roberts. The course of study, now completed, has an immediate benefit to the applicant, who can seek employment in this selected field. The activities carried out overseas, in my view, have been of benefit to the applicant personally, but have not been of benefit to Australia, as contemplated by the legislation.

16. Dr Goodman submitted that his son is disadvantaged now, because of his lack of citizenship, and that, in effect, when his son left and returned to Australia on occasions, some Department official should have brought it to his son's attention that he could apply for citizenship. The applicant has been able to apply on his own behalf, for citizenship, since he turned 18 years of age in July 1992. He does not maintain that he made any inquiries of the Department as to the possibility of obtaining citizenship, and it is unfortunate that the matter was not given any consideration until some 8 years later, by which time he was already pursuing his studies in New Zealand, and unable to satisfy the residency qualifications despite having lived in Australia since the age of 2.

17. I am satisfied on the evidence that the applicant has not satisfied section 13(1) of the Act, and it was appropriate therefore that his application for citizenship be refused.

18. For these reasons, the Tribunal affirms the decision under review.

I certify that the 18 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member WJF Purcell

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

Personal Assistant

Date/s of Hearing 14 January 2002

Date of Decision 14 January 2002

Council for the Applicant in person

Solicitor for the Applicant

Counsel for the Respondent Mr Jim Telfer

Solicitor for the Respondent Sparke Helmore