Milner and Minister for Immigration and Multicultural and Indigenous Affairs [2002] AATA 719 (23 August 2002)

Last Updated: 23 August 2002

DECISION AND REASONS FOR DECISION [2002] AATA 719

ADMINISTRATIVE APPEALS TRIBUNAL )

) No Q2002/205-206

GENERAL ADMINISTRATIVE DIVISION )

Re MARTIN MILNER LATA MILNER

Applicants

And MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

Respondent

DECISION

Tribunal Dr EK Christie, Member

Date 23 August 2002

Place Brisbane

Decision The decisions under review are affirmed. This means the applications for review by Martin and Lata Milner are unsuccessful.

(Sgd) EK Christie

Member

CATCHWORDS

CITIZENSHIP - application for Australian citizenship - whether "permanent resident" requirement satisfied - whether activities outside Australia beneficial to the interests of Australia - exercise of discretion

Australian Citizenship Act 1948 ss 13(1)(a); 13(1)(d), 13(4)(b)(i)(C), 13(4)(v)

Australian Citizenship (Permanent Resident Status) New Zealand Citizens Declaration 2001

Migration Act 1958 s 5A

Re Dainty and Minister for Immigration and Ethnic Affairs (1987) 12 ALD 416

Re Lien and Minister for Immigration and Multicultural Affairs (1996) 43 ALD 699

Re Minister for Immigration, Local Government and Ethnic Affairs v Roberts (1993) 29 ALD 656

Re Pai and Minister for Immigration and Ethnic Affairs (1994) 35 ALD 762

Patman v Fletcher's Photographics Pty Ltd & Anor (1984) 6 IR 471

REASONS FOR DECISION

23 August 2002 Dr EK Christie, Member

1. This is an application for the review of a decision of a delegate of the Minister for Immigration and Multicultural and Indigenous Affairs, made on 18 January 2002, which refused an application for the grant of Australian citizenship by Martin and Lata Milner ("the applicants").

2. The delegate refused to exercise the discretion to grant the applicants a certificate of Australian citizenship in accordance with subsection 13(1) of the Australian Citizenship Act 1948. The basis for the delegate's decision was that each applicant had not satisfied the Minister that they were a "permanent resident" of Australia as provided for in subsection 13(1)(a) of the Australian Citizenship Act 1948.

3. At the hearing, the applicants were represented by Mr Esef Mirascija, a Registered Migration Agent with Steindl Bell Lawyers. Mr Benjamin Cramer, a Solicitor with Blake Dawson Waldron Lawyers, represented the respondent. Martin and Lata Milner gave oral evidence to the Tribunal.

4. At the hearing, the Tribunal had before it documents lodged pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 (the "T" Documents") [Exhibit 1 (Martin Milner); Exhibit 2 (Lata Milner)] and the various documents tendered by the parties.

Facts

5. The general facts were not in dispute and may be stated briefly. Mr Milner was born in New Zealand. His wife, Ms Lata Milner, was born in India.

6. The applicants were both New Zealand citizens. The applicants were residents of Papua and New Guinea ("PNG") where they both carried on separate professional businesses. Consequently, both Martin and Lata Milner were also PNG citizens.

7. The applicants first arrived in Australia on 17 August 1990. They had travelled between PNG and Australia many times, from this date, whilst carrying PNG and New Zealand passports.

8. A Declaration made on 16 February 2001, by the Minister under the Australian Citizenship Act 1948, varied the provisions for certain New Zealand citizens taken to be Permanent Residents: the Australian Citizenship (Permanent Resident Status - New Zealand Citizens Declaration 2001. The Declaration commenced on 27 February 2001.

9. The applicants arrived in Australia from PNG on 13 January 2001. They departed Australia on 2 July 2001.

10. The applicants applied for Australian citizenship on 13 November 2001.

Issues to be Decided

11. The central issue for the Tribunal to decide was whether the applicants, as New Zealand citizens, came within the statutory framework to be granted Australian citizenship at the time of their application on 13 November 2001.

Statutory Framework

12. The grant of Australian citizenship is provided in accordance with the Australian Citizenship Act 1948 (Part 3, Division 2). Section 13 is the relevant provision in the circumstances of this application for review.

13. Section 13 provides for "Grant of Australian Citizenship".

"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 and continuing association with Australia.

...

(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 presented 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;

... 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."

14. Section 5A of the Australian Citizenship Act is also relevant as it provides for circumstances for "certain non-citizens to be Permanent Residents for the purposes of the Act":

"5A(1) A person who is not an Australian citizen shall be taken to be, or to have been, a permanent resident for the purposes of this Act:

...

(bb) in relation to a period on or after 1 September 1994 if:

(i) the person was present in Australia and held a permanent visa; or

(ii) a declaration under subsection (2) applied to the person;

...

(2) The Minister may, by instrument in writing, declare that persons included in a specified class of persons, being persons (other than Australian citizens) who:

...

(d) are holders of special category visas or special purpose visas; or

...

shall be taken to be, or to have been during a specified period, persons to whom this subsection applies. [Tribunal emphasis]

15. The provisions for "Special Category Visas" are contained in section 32 of the Migration Act 1958 and are relevant in this application for review given both applicants are New Zealand citizens:

"(1) There is a class of temporary visas to be known as special category visas.

(2) A criterion for a special category visa is that the Minister is satisfied the applicant is:

(a) a non-citizen:

(i) who is a New Zealand citizen and holds, and has shown an officer, a New Zealand passport that is in force; and

(ii) is neither a behaviour concern non-citizen nor a health concern non-citizen; or

(b) a person declared by the regulations, to be a person for whom a visa of another class would be inappropriate; or

(c) a person in a class of persons declared by the regulations, to be persons for whom a visa of another class would be inappropriate."

16. A Declaration made by the Minister for Immigration and Multicultural Affairs on 16 February 2001 under subsection 5A(2) of the Australian Citizenship Act 1948: the Australian Citizenship (Permanent Resident Status - New Zealand Citizens Declaration 2001 (or the "Declaration"), commenced on 27 February 2001 and varied the provisions for "Certain New Zealand Citizens Taken to be Permanent Residents" (section 5A, Australian Citizenship Act 1948).

"5 Certain New Zealand citizens taken to be permanent residents (Act s5A)

(1) This section applies to the following persons:

(a) a New Zealand citizen who was in Australia on 26 February 2001 as the holder of special category visa;

(b) a New Zealand citizen who was outside Australia on 26 February 2001 but was in Australia as the holder of a special category visa for a period of, or periods that total, not less than 1 year in the 2 years immediately before that date;

(c) a New Zealand citizen not mentioned in paragraph (a) or (b) who has a certificate, issued under the Social Security Act 1991, that states that the citizen was, for the purposes of that Act, residing in Australia on a particular date."

Evidence of Martin Milner

17. Mr Milner said that in order to do business in PNG, a holder of a New Zealand passport required a working visa which was normally renewed every three years. Because of the amount of overseas travel he and his wife did whilst living in PNG, they both thought it appropriate to apply for PNG citizenship and, as a result, held dual citizenship.

18. During overseas travel, the practice of his wife and himself was to carry both PNG and New Zealand passports and they "made a condition that whenever we entered or left a country we just presented both passports". He further confirmed, in re-examination, that their regular procedure was to always present both passports on entry.

19. However, under cross-examination, Mr Milner acknowledged that he arrived in Australia on 13 January 2001 and that he held a Tourist Visa (CAT: TR-676) on his PNG passport.

20. Mr Milner gave the following oral evidence in examination-in-chief, in relation to his business activities in PNG:

(a) Five years after moving to PNG he established a graphic art and printing business (Qwila Graphics) in PNG and offered technical services not available at that time in PNG. To set up this business he had brought up specialist consultants from Australia together with the necessary equipment (computers, lithographic printing press) from Australia.

(b) Mr Milner stated that he used three main Australian companies to support running his business. Heidleberg Australia was the biggest source of equipment and machinery. He had also obtained a light-weight printing machine from Printing Technologies, Brisbane; their main supplier of consumables (printing paper, inks) was CPI Graphics, Brisbane.

(c) Mr Milner said as time went on, because:

"...we could only run a certain size of machinery, we could only print a certain size of paper on the equipment that we had. We subcontracted to a number of Australian companies and the biggest one here was the Inprint Group based in Geebung and they did all of our high quality type work which was brochures, pamphlets, large poster type work. We also did a deal with two label printing companies, one based here in Brisbane, Mr Labels; and the other one in Cairns, which was Spicers Labels, and we actually probably became their Papua New Guinean agents as well."

(d) Mr Milner stated that prior to 1995, Japan was probably their main supplier of consumables for the first twelve months. Thereafter, infrequency of shipments and earthquake damage to two of his suppliers at Kobe resulted in all of his suppliers coming from Australia. He said that although cheaper consumables could have been obtained from Indonesia, he never used this source because "the quality was inferior".

(e) Mr Milner stated his business supported a turnover of $A7-8m with all his consumables and equipment imported from Australia.

(f) Mr Milner stated that he had been provided with advice in setting up his business in PNG by AUSAID.

(g) Qwila Graphics was about the third largest printing business in PNG and "printed a wide range of products for a number of companies". He said that "a lot of those companies were Australian based".

21. Mr Cramer elected to not cross-examine Mr Milner on these issues.

Evidence of Lata Milner

22. Ms Milner was a solicitor in New Zealand who moved to PNG in 1984. She said that she commenced work in PNG as a solicitor, became a partner in the firm and later purchased the business in 1992.

23. Ms Milner said that the reasons for her taking PNG citizenship were related to (a) the trust accounting laws which operated at the time she owned the law firm, (b) the needs to facilitate her business, and (c) the amount of overseas travel she did with, and without, her husband.

24. Ms Milner described her regular practice on entering Australia, or any other country, as follows:

"When we came in and out of Papua New Guinea it was very critical for us to have our PNG passport or prior to getting citizenship we had to have a New Zealand passport with the appropriate visa, which was a work permit visa. When we became citizens, to travel out of Papua New Guinea we would show our PNG passports. When we entered Australia we always produced both passports, or even when we travelled to America where my family live, we always produced both passports. Nine times out of ten they would stamp the New Zealand passport. Occasionally they would stamp the PNG passport and this was very much so when I came into Australia when I had sold my law office back in May 2000. I can clearly recall specifically handing both passports to the Customs Office and telling them that I was coming in now to reside in Australia permanently."

and

"I can say that I entered Australia [13 January 2001] with both passports. I have no idea why the department stamped one and not the other but certainly I was here with a valid passport and I was residing here. I've been residing here since May 2000."

25. Ms Milner acknowledged that she was working in Australia on 26 February 2001, that she held a valid New Zealand passport and was in "perfect health".

26. Under cross-examination, Ms Milner was questioned whether she had been granted a "Special Category" visa on entering Australia on 13 January 2001. She responded:

"I had no idea what a special category visa even was at that time. All I know is that as normal practice we would always give the customs officer, produce both passports to him."

27. During further cross-examination, Ms Milner gave the following response for the reason she held a visa in her PNG passport on entering Australia on 13 January 2001:

"....whilst we were living in Papua New Guinea we made several trips to America because my family live there and in order to get out of the country we had to produce evidence that we had a visa to leave to go to America so we had to have a visa in our PNG passport."

28. At the end of the hearing, the Tribunal invited supplementary submissions on the application of subsection 13(1) of the Australian Citizenship Act 1948 to all of the oral evidence and information already before the Tribunal. The primary reason for this direction was based on the need for procedural fairness - as well as for better informed decision-making, given the respondent's submissions had only focussed on subsection 13(1)(a). Accordingly, the Tribunal has only considered the supplementary submissions that were based on evidence before the Tribunal as at the date of the hearing and subject to evaluation by cross-examination for its reliability. Supplementary submissions were received from the applicant on 24 June 2002 and from the respondent on 14 June 2002 and 27 June 2002.

Contentions and Submissions of the Parties

29. It was contended by Mr Mirascija that at all relevant times Martin and Lata Milner were New Zealand citizens who held valid New Zealand passports. Moreover, their evidence indicated that they had always carried both PNG and New Zealand passports in their overseas travels and had shown both passports to an officer on arrival in Australia on 13 January 2001. On 26 February 2001, both Martin and Lata Milner were in Australia as New Zealand citizens, and each the holder of a valid New Zealand passport. Neither Martin nor Lata Milner were a "behaviour concern" or a "health concern" non-citizen.

30. It was submitted by Mr Mirascija that the Tribunal should exercise its discretion under subsection 13(4)(b)(i) of the Australian Citizenship Act because Martin and Lata Milner were engaged in activities beneficial to the interest of Australia. Furthermore, it was contended that their work in promoting Australian technology in PNG was in the public interest and did not merely represent a private interest. It was submitted that the activities of the applicants in PNG made an important contribution to the PNG economy and that this contribution facilitated good relationships with Australia.

31. Finally, it was conceded by the applicants that Martin and Lata Milner had not been present in Australia for the required one year during the period of two years - or two years during the period of five years, immediately after their date of application for Australian citizenship. However, it was then submitted by Mr Mirascija that the Tribunal should exercise its discretion and treat the period, in which they were permanent residents and not present in Australia, as a period in which they were present.

32. Mr Cramer for the respondent contended that the requirements for a grant of Australian citizenship, as set out in subsection 13(1) of the Australian Citizenship Act were cumulative requirements. Moreover, because the applicants were not permanent residents under subsection 13(1)(a) of the Australian Citizenship Act, it was not necessary for the Tribunal to decide whether the applicants satisfied further requirements of the Australian Citizenship Act, for the purposes of exercising the discretion to grant certificates of Australian citizenship. The basis for this contention was that on 26 February 2001, Martin and Lata Milner were in Australia as holders of temporary 676 - Tourist (Short Stay) visas as citizens of PNG under their PNG passports. Accordingly, the circumstances of the applicants did not bring them within the provisions of the Declaration and so be regarded as permanent residents for the purposes of the Australian Citizenship Act.

33. Mr Cramer further contended that both Martin and Lata Milner were unable to meet the requirements of subsection 13(1)(d) and (e) of the Australian Citizenship Act. Both Martin and Lata Milner, it was contended, failed to satisfy the statutory residency requirements for both the two year period and five year period prior to their application for Australian citizenship on 13 November 2001.

34. Finally, it was Mr Cramer's contention that discretion under subsection 13(4)(b)(i) of the Australian Citizenship Act could not be exercised because the activities of Martin and Lata Milner in PNG could not be considered as having been "beneficial to the interests of Australia". Rather, Mr Cramer contended the activities of Martin and Lata Milner should be regarded as merely a furthering of private commercial interests and did not contain any recognisable public benefit.

35. Mr Cramer referred to Martin Milner's evidence in relation to the activities of Qwila Graphics (see paragraph 20) and contended that these activities did not satisfy the common law test for "public interest" or "public benefit" because:

(a) the applicants had not produced any evidence of an increased demand for the printing goods they had been buying and selling that could be beneficial to the interests of Australia;

(b) the applicants and the players in the Papua New Guinea printing industry were the beneficiaries;

(c) the applicants set up the business to provide additional printing services to Papua New Guinea;

(d) the business and set up was possible through the help of Aus-Aid volunteers;

(e) the applicants had not produced any evidence of job creation, either present or future, arising from their activities overseas that could be beneficial to the interests of Australia; and

(f) no objective benefit to Australia had been demonstrated. Any benefits from the applicants' activities did not extend beyond the private interests of themselves and their Qwila Graphics business.

36. Mr Cramer further submitted that there was insufficient evidence before the Tribunal to determine how Lata Milner's own legal firm in PNG was "beneficial to the interests of Australia".

Consideration of the Issues

37. The first question for the Tribunal to consider is the approach to the interpretation of the various subsections of section 13 of the Australian Citizenship Act. In Patman v Fletcher's Photographics Pty Ltd & Anor (1984) 6 IR 471, Priestley JA made the following observation (at 474) in relation to interpretation of a number of subsections in a statute:

"I have already remarked that if s.4(1) is read on its own then there is some plausibility in the defendant's contention. Obviously, however, it cannot be read on its own. Moreover, I see no reason why the Act should not be read in the ordinary way in which a document is read, that is, from the beginning onwards."

38. Applying this approach to the interpretation of the various subsections of section 13 of the Australian Citizenship Act, the Tribunal firstly considers the application of subsection 13(1)(a) of the Act to the factual circumstances of this application for review.

39. The reference in section 13 of the Australian Citizenship Act to "permanent resident" involves consideration of section 5A of the Migration Act which, in the view of Davies J in Re Dainty and Minister for Immigration and Ethnic Affairs (1987) 12 ALD 416:

"defines the circumstances in which a person shall be taken to be a permanent resident for the purposes of the Act....The material aspect of this section is that a person is deemed not to be a permanent resident if his continued presence in Australia is subject to any limitations as to time imposed by law."

40. Accordingly, the Tribunal must decide whether Martin and Lata Milner entered into Australia on temporary entry permits and so did not come within the statutory meaning of "permanent resident".

41. Given that Martin and Lata Milner were both physically present in Australia on 26 February 2001, in order for them to be treated as "permanent residents" for the purposes of the Australian Citizenship Act, they would each need to be holders of a special category visa; this visa would permit them to remain in Australia as long as they were New Zealand citizens. This is the effect of the Australian Citizenship (Permanent Resident Status) New Zealand Citizens Declaration 2001, including the transitional provisions.

42. Furthermore, in meeting this requirement, the effect of the application of "permanent resident" under section 5A of the Migration Act would enable Martin and Lata Milner to hold a permanent visa or a special category visa with respect to their physical presence in Australia on 26 February 2001 and to reside in Australia as long as they remained a New Zealand citizen.

43. A special category visa would have been granted to Martin and Lata Milner as holders of valid New Zealand passports on their entry into Australia on 13 January 2001 on presentation of a valid New Zealand passport to a Departmental Clearance Officer at the airport. Such a presentation would be evidenced by a stamp in each passport. However, the result of a situation where only the PNG passport was presented and stamped on entry into Australia would be the grant of a defined category of temporary visa - rather than a permanent or special category visa.

44. The Tribunal has considered the evidence of Martin and Lata Milner that they always presented both PNG and New Zealand passports on all occasions that they entered Australia. The Tribunal could accept, as plausible that a situation might arise that because of some form of administrative error on entry, only one of the two passports presented may have been stamped.

45. However, such a conclusion cannot be reconciled with the factual situation [viz, the frequency of entry and the category of visa issued] over the two years preceding their application for citizenship, 13 November 1999 - 13 November 2001. Over this period, Martin Milner entered Australia nine times. On all nine occasions he entered on his PNG passport (Exhibit 1, T7). In Lata Milner's case, she entered Australia eight times over the same period. On only one of these occasions (15 June 2000) was her New Zealand passport stamped and a sub-class 444 Special Category Visa granted (Exhibit 2, T5).

46. Applying the statutory requirements for the meaning of "permanent citizen", together with the category of visas issued in the above factual circumstances, the Tribunal can make no other conclusion that neither Martin nor Lata Milner satisfied the results of the Declaration to be granted a special category visa on their entry into Australia on 13 January 2001 - and given that they were both physically present in Australia on 26 February 2001.

47. Accordingly, the Tribunal finds that Martin and Lata Milner do not satisfy the statutory requirements to be holders of special category visa or to come within the transitional provisions of the Declaration. The Tribunal has no option other than to find that Martin and Lata Milner were not "permanent residents" under the Declaration. Consequently, subsection 13(1)(a) of the Australian Citizenship Act is not satisfied.

48. Based on the principles for statutory interpretation outlined in Patman's case, the Tribunal has also considered whether discretion may arise under succeeding provisions of the Australian Citizenship Act. The residence periods prescribed by the Australian Citizenship Act [subsections 13(1)(d) and (e)] are central to the exercise of such discretion.

49. The specific provision of the Australian Citizenship Act in issue is the application of subsection 13(4)(b)(i): whether activities of Martin and Lata Milner in PNG are "activities beneficial to the interests of Australia". The oft quoted benchmark for the legal meaning of this phrase is the decision of Einfeld J in Minister for Immigration, Local Government and Ethnic Affairs v Roberts (1993) 29 ALD 656:

"....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..."

50. Clearly, the evaluation of this phrase, in each case must turn on its own merits and in accordance with established legal principles.

51. The Tribunal has adopted such an approach and concludes that the activity of Martin Milner with Qwila Graphics in PNG is not an activity that is "beneficial to the interests of Australia" for the following reasons:

(i) Whilst there may be some ancillary benefit to Australia, the activities of Martin Milner were clearly commercial in nature. No public interest element could be recognised for the Australian community, generally, as flowing from these activities in PNG. That is, whilst these activities may have furthered the private interests of the Australian companies supplying Qwila Graphics, it does not necessarily follow that these activities benefit the interests of the Australian community or stimulate the Australian economy: see Re Lien and Minister for Immigration and Multicultural Affairs (1996) 43 ALD 699; and

(ii) There is no evidence that the activities of Martin Milner in PNG through promotion may have, or have, led to a new export market(s) opening up, or to provide new contacts or new international commercial opportunities for Australian technology. The Tribunal is unable to infer that Martin Milner's activities in PNG were vitally important to the promotion and export of Australian technology overseas: see Re Pai and Minister for Immigration and Ethnic Affairs (1994) 35 ALD 762.

52. The Tribunal further finds that there is no evidence before the Tribunal as to the extent of Lata Milner's involvement and control of day-to-day operations of Qwila Graphics. Nor is there any evidence before the Tribunal as to how Lata Milner's legal firm in PNG was "beneficial to the interests of Australia".

53. Based on the above findings the Tribunal finds that Martin and Lata Milner do not satisfy the requirements of subsection 13(4)(b)(i)(C) of the Australian Citizenship Act. In addition, based on the frequency of the entry of Martin and Lata Milner into Australia over the two year period (November 1999 - November 2001) relative to the actual passport stamped and the category of visa granted (see paragraph 45), the Tribunal cannot find any basis to conclude that some form of systematic administrative error could have occurred on so many occasions.

54. Accordingly, discretion cannot be exercised under subsection 13(1)(d) with respect to the periods of permanent residency in Australia immediately prior to their application for citizenship.

55. For all of the above reasons, i.e. a failure to satisfy the requirements of subsections 13(1)(a) and 13(1)(d) of the Australian Citizenship Act, the Tribunal finds that the applications for review by Martin and Lata Milner are unsuccessful. The Tribunal must therefore affirm the decisions under review.

I certify that the 55 preceding paragraphs are a true copy of the reasons for the decision herein of Dr EK Christie, Member

Signed: Sarah Oliver

Associate

Date of Hearing 4 June 2002

Date of Decision 23 August 2002

Solicitor for the Applicant Mr Esef Mirascija, Registered Migration Agent

Solicitor for the Respondent Mr B Cramer, Blake Dawson Waldron