Han and Minister for Immigration and Citizenship [2007] AATA 1710 (3 August 2007)

Last Updated: 30 August 2007

Administrative Appeals Tribunal

DECISION [2007] AATA 1710

ADMINISTRATIVE APPEALS TRIBUNAL )

) No 2007/0709

GENERAL ADMINISTRATIVE DIVISION		)
	Re		YOUNG CHEOL HAN

Applicant

And

MINISTER FOR IMMIGRATION AND CITIZENSHIP

Respondent

Tribunal

G.D. Friedman, Senior Member

Date 3 August 2007

Place Melbourne

Decision

For reasons given orally at the hearing the Tribunal affirms the decision under review.

(sgd) G. D. Friedman
Senior Member

CITIZENSHIP - residence requirements - discretion regarding temporary residence - whether applicant would suffer significant hardship or disadvantage

Acts Interpretation Act 1901 s 8

Australian Citizenship Act 1948 ss 13(1)(d), 13(1)(e), 13(4)(b)(iv), 52A

Australian Citizenship Act 2007

Australian Citizenship (Transitionals and Consequentials) Act 2007 Schedule 3

Drake v Minister for Immigration and Ethnic Affairs (No.2) [1979] AATA 179; (1979) 2 ALD 634

Esber v Commonwealth [1992] HCA 20; (1992) 174 CLR 430

REASONS FOR DECISION

3 August 2007 G.D. Friedman, Senior Member

1. Young Cheol Han is a South Korean citizen who came to Australia in 2002 and was granted a permanent residence visa on 11 October 2006. On 12 December 2006 he applied for Australian citizenship but was refused because he did not satisfy the residence requirements.
2. The issue before the Tribunal is whether the discretion to grant citizenship should be exercised in Mr Han’s favour on the basis that he would suffer significant hardship or disadvantage if citizenship is not granted.

WHAT IS SIGNIFICANT HARDSHIP OR DISADVANTAGE?

3. Section 13(1) of the Australian Citizenship Act 1948 (the Act) provides that Australian citizenship may be granted to a person who has been in Australia as a permanent resident for not less than one year during the 2 years immediately preceding the date of application (s 13(1)(d)); or not less than 2 years during the 5 years immediately preceding the date of application (s 13(1)(e)).
4. Section 13(4)(b) of the Act gives the Minister discretion to grant citizenship when the residence requirements are not met:

...

(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;

Chapter 4 of the Australian Citizenship Instructions (ACI) provides guidance on the application of s 13 of the Act. The Tribunal is required to have regard to these Instructions unless there are cogent reasons for not doing so (Drake v Minister for Immigration and Ethnic Affairs (No.2) [1979] AATA 179; (1979) 2 ALD 634).

5. The relevant paragraphs of the ACI are 4.3.33 and 4.3.34:

4.3.33 As a matter of policy, this discretion would usually be exercised only in one of the following situations of hardship or disadvantage:

- the applicant can demonstrate that they have 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 them.

- The applicant would be excluded from travelling internationally because they cannot obtain a passport or because they are excluded from travelling with immediate Australian family or

- the applicant would not otherwise be eligible to represent Australia in an international forum or be selected to represent Australia in a national representative team/group:

- An applicant should be of international standard to satisfy this criterion.

- If citizenship is a prerequisite to selection for a national team, the applicant should be able to demonstrate that their selection depends solely upon being granted citizenship.

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

The applicant still has to satisfy the normal residence requirements of “2 years in 5” and “1 year in 2” and must be a permanent resident at the time of application.

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

The discretion is available only for periods spent lawfully in Australia.

This discretion is not available for periods when the applicant was in contravention of a law of a “prescribed Territory”.

See 4.3.33 for guidance on hardship or disadvantage.

6. On 1 July 2007 the Australian Citizenship Act 2007 (the 2007 Act) came into effect. Schedule 3 of the Australian Citizenship (Transitionals and Consequentials) Act 2007 provides transitional arrangements for matters that commenced before the operation of the 2007 Act. Item 10 provides that despite the repeal of the previous Act, section 52A of the previous Act (from which the Tribunal derives its jurisdiction) continues to apply in relation to a decision made under that Act, as if that repeal had not been made. Section 8 of the Acts Interpretation Act 1901 provides that a repealed Act shall not affect any accrued rights under the repealed Act. Therefore Mr Han’s application, which was lodged under the previous Act, is to be determined according to that Act (Esber v Commonwealth [1992] HCA 20; (1992) 174 CLR 430).

WOULD MR HAN SUFFER SIGNIFICANT HARDSHIP OR DISADVANTAGE IF HE IS NOT GRANTED AUSTRALIAN CITIZENSHIP?

7. Mr Han conceded that he does not satisfy the residence requirements for Australian citizenship, but told the Tribunal that he would suffer extreme hardship or disadvantage if he is not granted Australian citizenship. He said that since arriving in Australia with his wife he has been working for Australian Relief and Mercy Services Ltd (ARMS) which is part of Youth With A Mission, Melbourne (YWAM), a Christian welfare organisation. Mr Han explained that his duties have included co-ordination of outreach programs, facilitation of Christian prayer meetings, assisting the hospitality section, and the provision of pastoral care for visiting outreach teams. He stated that currently he is involved in a project which is investigating ways to assist the Republic of North Korea by providing emergency aid such as housing, agricultural, medical and developmental aid. He said that to ascertain the most pressing needs and the most appropriate use of resources he needs to visit North Korea personally so that he may assist with setting up and managing the project.

8. Mr Han stated that he has completed the necessary training for deployment to disaster areas, but that as a citizen of South Korea he is unable to obtain permission from the Government of North Korea to visit North Korea. He said that such a visit would also cause difficulties with the South Korean Government. He stated that, for these reasons, he needs Australian citizenship which would enable him to obtain a visa to visit North Korea. He said that he has already made contact with the North Korean Embassy in Canberra, which has viewed the proposed aid project favourably. Mr Han agreed that he has visited several countries on his South Korean passport, and is able to visit countries such as Thailand, East Timor and Indonesia in the course of his work.

9. Mr Han provided letters of support from the national director of ARMS and financial supporters of YWAM (Exhibits A2 and A3) together with documents outlining the North Korea aid project. Mr M. Collwell, missionary, YWAM, gave evidence supporting Mr Han’s application. He said that Mr Han’s language skills and work on the North Korea project have been invaluable, and that any delay in Mr Han visiting North Korea would cause delays to the implementation of the project.

10. The Tribunal accepts that Mr Han is held in high esteem by ARMS and that his work is viewed favourably by the organisation. Mr Han has already made a valuable contribution to the community in his pastoral role and in the development of the North Korea project, which aims to provide valuable assistance to the people of North Korea. Mr Han’s work would be assisted greatly if he is able to visit North Korea in the near future, although his continuing employment with ARMS does not depend on such a visit.

11. There is no dispute that Mr Han does not satisfy s 13(1)(d) or 13(1)(e) of the Act. He will satisfy these sections on 10 October 2008 if he does not depart Australia before that date. In relation to s 13(4)(b) of the Act and in applying paragraphs 4.3.33 and 4.3.34 of the ACI, the Tribunal notes that Mr Han has not demonstrated that he has been refused employment because of a lack of citizenship, or that he is prevented from travelling to other countries. There is no suggestion that he is otherwise prevented from representing Australia in an international forum or a national representative team or group.

12. Although the implementation of the North Korea project might be delayed by the inability of Mr Han to visit North Korea until he fulfils the residence requirements of the Act for the grant of Australian citizenship, the Tribunal is satisfied that any hardship or disadvantage suffered by Mr Han is the result of a decision by the North Korean Government to refuse him entry, and is not the result of a refusal to grant him Australian citizenship, and is not significant hardship or disadvantage. For these reasons the Tribunal finds that the discretion contained in s 13(4)(b)(iv) of the Act should not be exercised to grant him citizenship.

DECISION

13. For reasons given orally at the hearing the Tribunal affirms the decision under review.

I certify that the thirteen [13] preceding paragraphs are a true copy of the reasons for the decision of:

G.D. Friedman, Senior Member

(sgd) Lydia Zozula

Associate

Date of hearing: 3 August 2007

Date of decision: 3 August 2007

Advocate for applicant: Self-represented

Advocate for respondent: Ms K. Miller
Solicitor for respondent Australian Government Solicitor