Raniga and Minister for Immigration and Multicultural Affairs [2002] AATA 56 (1 February 2002)

Last Updated: 4 February 2002

DECISION AND REASONS FOR DECISION [2002] AATA 56

ADMINISTRATIVE APPEALS TRIBUNAL )

) No Q2001/944

GENERAL ADMINISTRATIVE DIVISION )

Re ODHAUJI RANIGA

Applicant

And MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

Respondent

DECISION

Tribunal Mr R G Kenny, Member

Date 1 February 2002

Place Brisbane

Decision The Tribunal affirms the decision under review.

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

R G Kenny

Member

CATCHWORDS

DEPARTMENT OF Immigration, Multicultural and Indigenous Affairs - refusal to grant Australian citizenship - Australian Citizenship Instructions

Australian Citizenship Act 1948 ss 13(1)(d), 13(1)(e), 13(4)(b) and 13(9)(c)

Casarotto v Australian Postal Commission (1989) 17 ALD 321

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

Drake v Minister for Immigration and Ethnic Affairs (1979) 46 FLR 409

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

Re Greenham and Minister for Capital Territory (1979) 2 ALD 137

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

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

Re Thompson and Export Development Grants Board (1985) 2 AAR 428

REASONS FOR DECISION

1 February 2002 Mr R G Kenny, Member

Hearing

1. This statement of reasons relates to the hearing by the Administrative Appeals Tribunal (the Tribunal) of an application to review a decision, dated 2 October 2001, of a delegate of the Minister for Immigration, Multicultural and Indigenous Affairs (the Minister and respondent) in which an application by Odhauji Raniga (the applicant) for a grant of Australian citizenship was not approved.

2. The matter was heard in the absence of the parties in accordance with section 34B of the Administrative Appeals Tribunal Act 1975 which reads:

"34B Circumstances in which hearing may be dispensed with

If:

(a) it appears to the Tribunal that the issues for determination on the review of a decision can be adequately determined in the absence of the parties; and

(b) the parties consent to the review being determined without a hearing;

the Tribunal may review the decision by considering the documents or other material lodged with or provided to the Tribunal and without holding a hearing."

3. At a conference held on 11 December 2001, both parties indicated that they would consent to the matter proceeding without a formal hearing and written confirmation of this was forwarded to the Tribunal by the applicant on 11 December 2001 and by the respondent on 19 December 2001. Being satisfied in accordance with the terms of section 34B of the Administrative Appeals Tribunal Act 1975 that the parties had consented and that the review could be adequately determined in the absence of the parties, the Tribunal proceeded on that basis.

Evidence

4. In evidence before the Tribunal were the T documents prepared for the application and statements of facts, issues and contentions submitted by the parties.

Background

5. An "Application for grant of Australian citizenship" was completed by the applicant on 1 October 2001 and lodged with the Department of Immigration, Multicultural and Indigenous Affairs (the Department) on that date (T7). On 2 October 2001, an officer of the Department determined that the applicant did not meet the relevant requirements for a grant of citizenship as set out in the Australian Citizenship Act 1948 (the Act) and advised the applicant that his application had not been approved (T2).

6. On 16 October 2001, the applicant lodged an application for review of that decision by the Tribunal (T1-4).

Applicant's case

7. In his initial application, the applicant stated that he was born in India in 1926, that he was a citizen of Fiji and that he had first come to Australia from Fiji as a permanent resident on 4 May 1987. In his written submission to the Tribunal, he stated that he had lived in Australia for a substantial part of the previous 10 years and that his wife, Dhan Kuar Raniga, and his sons, Bhisma and Satish Raniga, were Australian citizens. He also said that he had been eligible for a grant of Australian citizenship in 1992 but had elected not to seek citizenship at that time because he decided to return to Fiji to continue his business interests there as an insurance agent. He had conducted a business in Australia but he described this as a "complete failure" necessitating him to sell his two residential properties to repay loans. Rather than stay in Australia and become dependent on social security benefits, he returned to Fiji to earn his living. He also stated that, at the age of 75 years, he had now decided to retire form the workforce and to live in Australia once he is able to sell his residence and business in Fiji. He also said that the economic circumstances in Fiji were contributing to the difficulty in arranging for the sale of his business.

Respondent's case

8. The decision not to approve the application for a grant of citizenship was made on the basis that the applicant had not fulfilled the minimum residence requirements of sections 13(1)(d) and (e) of the Act. These were referred to as requiring the applicant to have completed a total of 2 years permanent residence in Australia in the 5 years immediately prior to the lodgement of the application, including a total of 1 year in the 2 years immediately prior to such lodgement. In the respondent's written submission, it was conceded that the applicant had been in Australia for 193 days in the 2 years prior to lodgement of the application and for 232 days in the 5 years prior to that date. It was determined that those periods within Australia were not sufficient to meet the minimum permanent resident requirements.

9. In its written submission dated 26 October 2001, the respondent also made reference to an alternative basis on which a grant of citizenship might be made as set out in sub-section 13(9) of the Act. This was where an applicant is the spouse of an Australian citizen. The respondent made reference to the Australian Citizenship Instructions and stated that this document detailed the Minister's policy to be applied in deciding whether or not a grant of citizenship may be made under sub-section 13(9) of the Act. Nevertheless, the respondent stated that the applicant's circumstances were not assessed under sub-section 13(9) of the Act and declared that this was because the applicant had made no claim under that provision. The respondent, however, noted that the applicant was the spouse of an Australian citizen but "gave little weight to this fact due to the total lack of claims and lack of supporting evidence". In a submission, dated 29 January 2002, from the respondent's legal representative, it was conceded that the applicant's spouse is an Australian Citizen.

Legislation and Ministerial policy

10. A grant of Australian citizenship may be made in accordance with the terms of sub-section 13(1) of the Act which reads:

"13 Grant of Australian citizenship

(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."

11. It is not in dispute in this case that the applicant meets the requirements of that provision with the exception of paragraphs 13(1)(d) and (e) which relate to the length of periods of residence in Australia. Sub-section 13(4) is relevant to the application of those provisions. It reads:

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

(a) the Minister shall not take into account, as a period during which the applicant has been present in Australia as a permanent resident, any period during which the applicant has been confined in a prison or has been confined in a psychiatric institution by order of a court made in connection with criminal proceedings against the person; and

(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;

(ii) treat a period ending before the period of 5 years referred to in paragraph (1)(e), being a period during which the applicant was present in Australia as a permanent resident, as a period within that period of 5 years;

(iii) if the applicant was, immediately before 16 September 1975, the holder of, or deemed to be included in, an entry permit (not being a temporary entry permit) and has continued to be the holder of, or to be deemed to be included in, such an entry permit, treat:

(A) a period ending before 16 September 1975 during which the applicant was ordinarily resident in Papua or New Guinea; or

(B) a period commencing on or after 16 September 1975 and ending before 16 September 1978 during which the applicant was ordinarily resident in the

Independent State of Papua New Guinea;

as a period:

(C) within the period of 5 years referred to in paragraph (1)(e); and

(D) during which the applicant was present in Australia as a permanent resident;

(iv) if the Minister considers that the applicant would suffer significant hardship or disadvantage if a certificate of Australian citizenship were not granted to the applicant--treat a period during which the applicant was present in Australia otherwise than as a prohibited immigrant, as a prohibited non-citizen, as an illegal entrant, as an unlawful non-citizen, or in contravention of a law of a prescribed Territory, as a period during which the applicant was present in Australia as a permanent resident; or

(v) if the Minister considers that an applicant who is a permanent resident was, by reason of an administrative error, not a permanent resident during a period during which the person was present in Australia--treat the period as a period during which the applicant was present in Australia as a permanent resident."

12. Another basis for granting citizenship is set out in sub-section 13(9) of the Act which reads:

"(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) who has not attained the age of 18 years;

(b) who:

(i) has attained the age of 18 years; and

(ii) has made the application before attaining that age;

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

(d) who:

(i) has attained the age of 16 years; and

(ii) is a permanent resident and the spouse of a person who has been granted a certificate of Australian citizenship but has not yet acquired Australian citizenship by virtue of the operation of section 15."

13. Sub-section 13(11) of the Act provides limitations to the application of sub-section 13(9) which are not material in this matter.

14. As sub-sections 13(1) and (9) of the Act indicate, the granting of Australian citizenship under either of those provisions is a matter for the discretion of the Minister. To assist delegates of the Minister in making decisions under the Act, a statement of Ministerial policy has been published by the Minister entitled the "Australian Citizenship Instructions" (the Instructions). The Tribunal, whilst not bound to apply policy guidelines of the kind published in the Instructions (see Drake v Minister for Immigration and Ethnic Affairs (1979) 46 FLR 409), may do so and, indeed, will usually apply the guidelines unless there are cogent reasons in a particular case for not doing so: see Re Drake and Minister for Immigration and Ethnic Affairs (No.2) (1979) 2 ALD 634 at 639-645; Re Dainty and Minister for Immigration and Ethnic Affairs (1987) 6 AAR 259 at 267; and Minister for Immigration, Local Government and Ethnic Affairs v Roberts (1993) 41 FCR 82 at 86. There is no reason why the relevant policy in the Instructions should not be applied by the Tribunal in the present case.

15. Paragraph 4.5.14 of the Instructions relates to the exercise of discretion in sub-paragraph 13(4)(b)(i) of the Act concerning the treatment of periods of absence from Australia as periods when a person is present in Australia. It reads:

"...the discretion will usually only be exercised if all of the following requirements are satisfied:

(a)The applicant was:

(i) either for an extended period or on a regular short-term basis:

* required to work overseas by a Federal, State or Territory Department, semi-government authority or private employer; or

* self-employed and frequent travel abroad was essential to the successful operation of the business; or

(ii) engaged overseas in activities of a social, cultural, economic or political nature which are clearly beneficial to the interests of Australia and are widely recognised as such either by:

* the Australian community generally; or

* prominent persons associated with their field of endeavour (for example, people engaged in aid programs, artists and entertainers of world standing).

(b) The applicant has established a prior primary identification with Australia, intends to continue to live in Australia and can show that he or she has commitments here such as substantial assets, or has close ties with the business community, or has family members established in the country.

(c) The applicant is in Australia. If the applicant is overseas, the discretion will normally not be exercised."

16. Paragraphs 4.5.17 and 4.5.18 of the Instructions relate to the exercise of discretion in sub-paragraph 13(4)(b)(ii) of the Act concerning the treatment of periods within Australia which occurred prior to the 5 year period referred to in paragraph 13(1)(e) of the Act. They read:

"4.5.17 There is a discretion to count permanent residence earlier than 5 years before application towards the "2 years in 5" residence requirement. This discretion does not apply to the "1 year in 2" residence requirement.

4.5.18 As a matter of policy, this discretion would usually only be exercised in certain situations of hardship or disadvantage, namely any of the following:

* The applicant can demonstrate that he/she has been refused employment solely on the grounds that the employment is restricted only 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/shecannot obtain a passport or because he/she is excluded from travelling with immediate Australian family by reason of the nationality of the passport/travel document he/she holds or is entitled to hold.

* The applicant would not otherwise be eligible to represent or be selected to represent Australia in a national representative team/group because Australian citizenship is a pre-requisite to selection. This should be applied uniformly to all sports. People should be of international standard and able to demonstrate that their selection for a national team depends solely upon being granted citizenship."

17. Paragraphs 4.2.1, 4.2.2 and 4.5.18 of the Instructions, which relate to the application of sub-section 13(9) of the Act, read:

"4.2.1 Paragraph 13(9)(c) of the Act 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.

4.2.2 For applicants in Australia, current policy is to follow the guidelines approved by the then Minister in April 1986 that such applicants are usually required to meet all of the following requirements:

*The applicant is a permanent resident (this is a legal requirement).

*The parties must be living together as husband and wife:

If the parties are not living together but claim that the marriage exists, the case should be decided by an officer at AS06 level or higher.

In the case of a widow or widower, the couple must have been living together at the time the Australian spouse died.

*The applicant is of good character (see 4.8 below);

*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 further 4.4(h) below;

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 already has fulfilled these requirements and it is evident that there will be on-going support for the applicant spouse in these matters.

If the applicant does not have this knowledge, the responsibilities and privileges of Australian citizenship [see 4.4(g) below] should be explained to him or her 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 application, at least 12 months of which must have been within the 2 years immmediately prior to that date, unless:

the person has lived in Australia as a lawful permanent resident continuously for the past year (an aggregate period of 4 weeks outside Australia during this period may be counted towards meeting this requirement); and

the person satisfies 4.5.18 below (relating to certain situations of hardship or disadvantage if not granted citizenship).

4.5.18 (See paragraph 16 of this decision)"

Discussion of Evidence

18. Taken together, paragraphs 13(1)(d) and (e) of the Act require a total of 2 years permanent residence in Australia in the 5 years immediately prior to the lodgement of the application for citizenship as well as a total of 1 year of such permanent residence in the 2 years immediately prior to the lodgement of the application. Given that the date of lodgement was 1 October 2001, the relevant period of 2 years commenced on 30 September 1999 and the relevant period of 5 years commenced on 30 September 1996.

19. In evidence before the Tribunal were certified copies of documents from the Department detailing the movements between Australia and Fiji of the applicant in the period from December 1982 until October 2001 (T5). These include periods of absence from Australia from 23 May 1996 until 10 May 1997, from 26 May 1997 until 24 October 1998, from 14 November 1998 until 23 January 2000, from 29 January 2000 until 17 April 2000, from 5 August 2000 until 2 December 2000 and from 6 February 2001 until 23 September 2001. The movement records also show that the applicant again left Australia for Fiji on 14 October 2001.

20. On the basis of those records of absences from Australia, the Tribunal finds that the applicant was a permanent resident in Australia for 193 days in the 2 years prior to lodgement of the application and for 232 days in the 5 years prior to that date. Indeed, the applicant has not disputed those findings which are in accordance with the submissions of the respondent. The Tribunal also finds that the applicant was permanently resident in Australia for various periods prior to the commencement of the 5 year period which preceded the lodgement of his application.

21. Sub-section 13(4) of the Act enables certain periods of absence from Australia to be treated as periods of being present within Australia. The only components of that provision which have potential relevance to the applicant are sub-paragraphs 13(4)(b)(i) and (ii) of the Act.

22. Sub-paragraph 13(4)(b)(i) applies if the applicant was engaged in activities beneficial to the interests of Australia. In Minister for Immigration, Local Government and Ethnic Affairs v Roberts (1993) 41 FCR 82, the Federal Court of Australia (Einfeld J) noted that the phrase "beneficial to the interests of Australia" was not defined in the Act and said that it must be construed according to the ordinary meaning of the words. His Honour continued (at 86, 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 [applicant for citizenship]. The section requires some objective benefit to Australia."

23. As noted above, paragraph 4.5.14 of the Instructions provides guidance for the application of that provision. In this case, the Tribunal is reasonably satisfied that those guidelines are not met, in that there is no evidence that the applicant was working other than in a private capacity, that frequent travel abroad was essential to his insurance business or that those business activities were beneficial to the interests of Australia in the sense that that phrase was explained in Roberts' case.

24. Sub-paragraph 13(4)(b)(ii) applies if the applicant would suffer one of the three forms of hardship or disadvantage nominated in the provision. There is no evidence that the applicant has been refused employment on the basis referred to therein, that there have been exclusions from international travel or that there has been preclusion form eligibility for selection in any national representative team or group.

25. All of the elements of sub-section 13(1) of the Act must be met before a grant of Australian citizenship may be made under that provision and the Tribunal's findings in relation to the periods of the applicant's presence in Australia mean that the applicant does not satisfy the requirements of paragraphs 13(1)(d) or (e) of the Act. It follows that a grant of citizenship cannot be made to the applicant on the basis of sub-section 13(1) of the Act.

26. As the Tribunal reads his initial application form, and contrary to the submission of the respondent, the applicant sought to rely on his wife's Australian citizenship as the basis for the grant of that status to him. In that application form, the applicant responded affirmatively to the following question:

"Are you applying for Australian citizenship on the grounds of being the spouse of an Australian citizen?"

27. Although the respondent did not make the decision to reject the application on the basis of spousal citizenship, the matter under review by the Tribunal is the decision concerning citizenship rather than the reasons given for that decision: see Drake v Minister for Immigration and Ethnic Affairs (1979) 46 FLR 409, Re Greenham and Minister for Capital Territory (1979) 2 ALD 137 at 141 and Casarotto v Australian Postal Commission (1989) 17 ALD 321 at 325. Clearly, the parties need to be aware of any different basis of reasoning that the Tribunal may consider: see Re Thompson and Export Development Grants Board (1985) 2 AAR 428 at 432. However, as noted above, both parties in this case are aware of the spousal citizenship basis for the granting of citizenship and both have made reference to in their documentation.

28. Apart from the applicant's assertion of his wife's citizenship, which has not been challenged by the respondent, there is no other evidence before the Tribunal on which a finding may be made on whether or not she is an Australian citizen and the Tribunal makes no finding on that matter. However, if the applicant's wife met that requirement, paragraph 13(9)(c) of the Act would be relevant. The Act provides no guidance on the way in which that provision, which is expressed in broad terms, is to be applied. The only stated criterion is the spouse's citizenship. Clearly, the mere fact of marriage to an Australian citizen does not, in itself, bestow a right to a grant of Australian citizenship; rather, it gives the applicant a right to seek the exercise of discretion in his favour: see Re Lee and Department of Immigration and Ethnic Affairs (1988) 10 AAR 270 at 275. As noted above, the Instructions have been published to assist in the exercise of that discretion.

29. The requirements of paragraph 4.2.2 of the Instructions are stated in a cumulative manner so that all of the nominated elements must be met. In relation to some of those elements, there is no evidence before the Tribunal. However, for one of those elements, a residential requirement is listed. Subject to some exceptions, the applicant must have been present in Australia as a permanent resident for at least 2 years in the five years immediately before application, at least 12 months of which must have been within the 2 years immmediately prior to that date. That is expressed in the same terms as paragraphs 13(1)(d) and (e) of the Act and the Tribunal has found that the applicant does not meet the terms of those provisions. The Tribunal also finds that the applicant does not satisfy the time-frames listed in the residential requirements of paragraph 4.2.2 of the Instructions.

30. Two exceptions to the residential requirement are listed in paragraph 4.2.2 of the Instructions. For the first of these, it will be sufficient if the applicant has lived in Australia as a lawful permanent resident continuously for a year prior to the lodgement of the application. The applicant's absences from Australia in that period are noted above and he does not satisfy the terms of the first exception.

31. A second exception arises if the applicant satisfies paragraph 4.5.18 of the Instructions which refers to nominated forms of hardship or disadvantage. However, there is no evidence that the applicant has been refused employment on the grounds referred to in that policy guideline or that the passport limitations stated in the policy guidelines are applicable to him.

32. The applicant does not meet the requirements for the grant of Australian citizenship under paragraph 13(9)(c) of the Act.

Decision

33. The Tribunal affirms the decision under review.

I certify that the 33 preceding paragraphs are a true copy of the reasons for the decision herein of Mr R G Kenny, Member

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

Associate

Date of Decision 1 February 2002

Hearing on the papers