Singh and Minister for Immigration [2010] AATA 103 (4 February 2010)

Last Updated: 12 February 2010

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2010] AATA 103

ADMINISTRATIVE APPEALS TRIBUNAL )

) No 2009/2852

GENERAL ADMINISTRATIVE DIVISION		)
	Re		KANWALJIT SINGH

Applicant

And

MINISTER FOR IMMIGRATION

Respondent

DECISION

Tribunal

M.D. Allen, Senior Member D. Letcher QC, Senior Member

Date 4 February 2010

Place Sydney

Decision

The decision under review is AFFIRMED.

....................[sgd]..........................

M D Allen, Presiding Member

CATCHWORDS

IMMIGRATION AND CITIZENSHIP: Application for grant of Australian Citizenship. Applicant not usually in Australia but manages his business in the United Arab Emirates. Wife and children Australian citizens. Excuse of discretion. Decision under review affirmed.

LEGISLATION

Australian Citizenship Act 2007 Ss22(9)

Australian Citizenship (Transitionals and Consequentials) Act 2007. Schedule 3 item 5B.

CASES

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

REASONS FOR DECISION

11 February 2010

M.D. Allen, Senior Member D. Letcher QC, Senior Member

1. At the conclusion of this hearing of the above matter the terms of the decision intended to be made and the reasons therefor were stated orally. After service upon the Applicant and Respondent of a copy of the decision that was in fact made, the Respondent, pursuant to subsection 43(2A) of the Administrative Appeals Tribunal Act 1975, requested that the Tribunal furnish to them a statement in writing of the reasons of the Tribunal for the decision,
2. The oral reasons for the decision have been transcribed by Auscript, the Commonwealth Reporting Service. Whereas those oral reasons may reflect the inelegance of an extempore decision, they are in fact the reason for the said decision.
3. The said transcript is annexed hereunto and furnished to the Applicant and to the Respondent as it is the reason for the Tribunal’s decision.
   

I certify that this and the following paragraphs are a true copy of the reasons for the decision herein of Senior Member M D Allen

Signed: ..........................[sgd]..............................................

K. Lynch, Associate

Date of Hearing 4 February 2010

Date of Oral Decision 4 February 2010

Representative for the Applicant Mr Kanwaljit Singh (self)

Representative for the Respondent DLA Philips Fox

EXTRACT OF TRANSCRIPT OF PROCEEDINGS:
MR ALLEN: By application made the 23rd day of June, 2009, the applicant sought review of a decision by the Department of Immigration and Citizenship to refuse the Applicant’s application for the grant of Australian citizenship. The Applicant was granted permanent residence in Australia on the 4th day of February, 1995, and lodged this current application for citizenship on 30 June 2008. On 1 July 2007, the Australian Citizenship Act 2007 and the Australian Citizenship (Transitionals and Consequentials) Act 2007 (“The Transitional Act”) came into effect. In this matter, the Transitional Act determines the residence requirements to be applied to the current application. Section 21 of the Australian Citizenship Act provides general eligibility requirements for citizenship by conferral.

It includes a requirement that the Applicant either satisfy the resident requirements in section 22, or has completed relevant Defence Service described in section 23. It is not in dispute that the Applicant does not satisfy the Defence Service provisions. The residence requirements in section 22(1) of the Australian Citizenship Act have been modified by item 5B of schedule 3 of the Transitional Act, which relevantly provides subsection (1):

This item applies if:

(a) person is a permanent resident, worked out under the old Act, immediately before the commencement day; and

(b) the person makes an application under section 21(1) of the new Act within a period of three years beginning on the commencement day.

The commencement day being the 1st day of July, 2007. Subsection (2) of item 5B then reads:

In applying section 22 of the new Act to an application covered by sub-item (1), subsections (1) to (2), 4A and 5A of section 22 of the new Act do not apply, and the following subsections of section 22 of the new Act apply instead:

(1) for the purposes of section 21, a person satisfies the resident requirement if the person has been in Australia as a permanent resident for:

(a) a total period of at least one year in the period of two years before the day the person made the application; and

(b) a total period of two years in the period of five years before that day.

It is again clear in this particular matter that the Applicant does not meet the resident requirements, as he has had extended periods outside Australia. However, subsection (9) of section 22 goes on to provide:

If the person is the spouse, widow or widower of an Australian citizen at the time the person made the application, the Minister may treat a period as one in which the person was present in Australia as a permanent resident if:

(a) the person was a spouse of that Australian citizen during that period; and

(b) the person was not present in Australia during that period; and

(c) the person was a permanent resident during that period; and

(d) the Minister is satisfied that the person has a close and continuing association with Australia during that period.

The Applicant in these proceedings maintains that the ministerial discretion referred to in subsection (9) of section 22 should be applied in his case. Again, it is not disputed by the Respondent that the Applicant was the spouse of an Australian citizen during the relevant period, and that the Applicant was a permanent resident during that period. The Applicant on his part, as I understand, does concede that he was not present in Australia during that period in that he didn’t fulfil the total resident requirement. In exercising any discretion under section 22, this Tribunal should apply the policy laid down in the Australian Citizenship Instructions 2007. So far as policy is concerned, we would refer to what Davies J, sitting as President of this Tribunal, said in Re Dainty v Minister for Immigration and Ethnic Affairs (1987) 6 AAR 259 at 266. His Honour there, after referring to the seminal case of Re Drake v Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634 at 639, said:

‘I accept that in the exercise to discretions under the Australian Citizenship Act 1948, the Tribunal ought generally to apply guidelines or policies which have been established by the Minister of State for Immigration and Ethnic Affairs. Such policies can only be adopted by the Minister. He has the experience and advice, and the power to formulate such policies and he is able to take responsibility in Parliament should the policies be found wanting. But to say that, is not to say the Tribunal ought to treat policy as more than policy. Policy is not a legislative prescription, and though in many cases it will be appropriate to apply policy in all or almost every case, there are circumstances where it is not appropriate to decide a matter merely by reference to a policy which has been laid down.’

In this matter, chapter 5 of the Australian Citizenship Instructions refers to citizenship by conferral. In speaking of the discretion under subsection (9) of section 22, it refers to factors that may contribute to a close and continuing association with Australia. We note, however, the instruction says that “those factors may include.” In other words, the listing of the particular factors in the Citizenship Instructions are not limiting in any way, the Tribunal is free to find other factors. Having regard to the factors therein set out, we find the Applicant, indeed, has Australian citizen children; he has had a long standing marriage with his wife who is an Australian citizen. He said in his evidence he has extended family in Australia being relatives, as we understand it, on his wife’s side.

The Applicant has been returning to Australia on frequent occasions and has had periods of residence in Australia. He owns property in Australia, and although he has only had a short period of employment in Australia and left Australia to seek further employment, his daughter is employed in the NSW Public Service of Australia, and his son is currently at university. On balance, we find that the Applicant does have a close and continuing association with Australia. That being so, the discretion set out in subsection (9) of section 22 is enlivened. In having regard to that discretion, we must consider the Applicant’s circumstances as given in his evidence.

What the Applicant said is that after a short period of employment in Australia which, in many ways, was not commensurate with his qualifications, he and his wife had the opportunity to commence business in the United Arab Emirates in the Free Zone. The Applicant is an engineer by profession and the business set up was one where he was converting various machines into machines that were managed by a computer. In the interim, his family has resided in Australia whilst he, and at times with assistance from his wife, has grown the business in the Free Zone of the United Arab Emirates.

Following the Amending Act, policy as stated in the Australian Citizenship Instructions now reads that the discretion would usually only be exercised if the Applicant was overseas with their Australian citizen spouse or de facto partner. That change of policy is considerable as relates to the situation of the Applicant as it is clear that, for the balance of the time he was overseas, he was not accompanied by his wife. She did accompany him on occasions, but the policy really refers to a different concept where it is the Australian citizen who is overseas and accompanied by the Australian citizen Applicant. This is the reverse of that. That does not end the matter, however, because there is still a general discretion as we see it. In exercising that discretion, we take into account that it was a deliberate decision by the Applicant to set up and continue the business in Dubai. The very fact of that business involved lengthy absences from Australia.

In his solicitor’s letter to the Department of Immigration supporting his application for citizenship, a reference was made to hardship, but the Applicant disavowed hardship in his address to the Tribunal today. In any event, we can see no evidence as to any restrictions now or in the future regarding his Permanent Residency. What is of particular note to us, however, is that the applicant is very much concerned in the management of his business in Dubai. There is no current likelihood of that business being relocated to Australia, and the Applicant gave reasons for that, and it seems to us that, as exists at the time of the application and as exists now, the Applicant has no current intention to reside in Australia as opposed to visiting his family from time to time whilst conducting his business in Dubai. In those circumstances, we find that it is inappropriate to exercise the discretion in his favour. Consequently, the decision under review is AFFIRMED.

END OF EXTRACT