Some Temporary Residence May Count For Permanent Residence For Citizenship
Re-capping s. 22(6) states:
Ministerial discretion—person in Australia would suffer significant hardship or disadvantage
(6) For the purposes of paragraph (1)(c), 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 present in Australia during that period (except as a permanent resident or an unlawful non‑citizen); and
(b) the Minister is satisfied that the person will suffer significant hardship or disadvantage if that period were not treated as one during which the person was present in Australia as a permanent resident.
But this only shortens the period of permanent residence in Australia, the total time of presence can not be shortened. There was a similar provision under the old Act and here is a recent case.
In Goddard v MIMA  AATA 896 (22.9.06) the applicant could not get a job commensurate with his qualifications without Australian citizenship. His circumstances were described by the AAT as:
Mr G spent 14 years in the armed forces when in the UK. He has developed skills in high level security, predominantly within the government security field.
He had trouble finding comparable work in Australia, but when he did he was told he needed to be an Australian citizen to get the job. The AAT concluded:
I am satisfied that while Mr G is not an Australian citizen, comparable employment commensurate with his skill level is not available him. Further, I am satisfied that if Mr G is not successful in this application he will lose the opportunity of obtaining a financially rewarding position that is appropriate to his particular skill level.
I am satisfied on the basis of the evidence set out above that Mr G would suffer significant hardship if his application was not granted. To apply the policy guidelines strictly in circumstances such as this would mean that that formality would take precedence over justice.
A similar case to Goddard is Re Joseph (19 February 2002) which concerned a Sri Lankan citizen employed by an Australian international company. He was required to travel overseas regularly as part of his job, but he found enormous difficulty getting visas to the countries he had to go to because of his Sri Lankan passport, so much so that the company was poised to terminate his employment if he continued to experience those difficulties.
Mr Joseph was granted permanent residency on 26 June 2001 and applied for citizenship shortly thereafter. He had lived in Australia as a temporary resident having spent roughly 2.5 years of the previous three in Australia.
The Australian Citizenship Instructions provided:
“The discretion would normally only be exercised if the applicant has 12 months continuous permanent residence in Australia prior to the date of application.”
The AAT considered that it was not bound to follow the ACI, which is the equivalent to the PAM or the MSI. The AAT concluded:
I do not understand these guidelines to be intended to fetter the respondent’s discretions as conferred on him by the Parliament. Rather they should be seen as guidelines for efficient and consistent administration of the discretions by the Minister’s delegates.
The Tribunal’s position in the context of ministerial guidelines was analysed and discussed in detail by the then President (Brennan J) in re Drake and Minister for Immigration and Ethnic Affairs (1979) 2 ALD 634. While much of what his Honour said is instructive in the context of this case I have had particular regard to the following passages at pages 642-3 as follows:
“It is one thing for the Minister to apply his own policy in deciding cases; it is another thing for the Tribunal to apply it. In point of law, the Tribunal is as free as the minister to apply or not to apply that policy. The Tribunal’s duty is to make the correct or preferable decision in each case on the material before it, and the Tribunal is at liberty to adopt whatever policy it chooses, or no policy at all, in fulfilling its statutory function.
In fulfilling its function, the Tribunal, being independent of the Minister, is free to adopt reasoning entirely different from the reasoning which led to the making of the decision under review. But it is not bound to do so. Of course, the Tribunal would be in error to apply an unlawful ministerial policy to cases it decides, for an application of unlawful policy vitiates the consequential decision. That problem does not arise in the present case.”
and at page 645:
“These considerations warrant the Tribunal’s adoption of a practice of applying lawful ministerial policy, unless there are cogent reasons to the contrary. If it were shown that the application of ministerial policy would work an injustice in a particular case, a cogent reason would be shown, for consistency is not preferable to justice. Injustice, in the context of ss 12 and 13 of the Migration Act, must mean a disproportion between the detriment suffered by those affected by the execution of a deportation order and the benefit which might reasonably be expected to result to the community at large or to particular individuals in the community if the order were affirmed.
In my view, the Tribunal, being entitled to determine its own practice in respect of the part which ministerial policy plays in the making of Tribunal decisions, should adopt the following practice.
When the Tribunal is reviewing the exercise of a discretionary power reposed in a Minister, and the Minister has adopted a general policy to guide him in the exercise of the power, the Tribunal will ordinarily apply that policy in reviewing the decision, unless the policy is unlawful or unless its application tends to produce an unjust decision in the circumstances of the particular case. Where the policy would ordinarily be applied, an argument against the policy itself or against its application in the particular case will be considered, but cogent reasons will have to be shown against its application, especially if the policy is shown to have been exposed to parliamentary scrutiny.”
In this case I am satisfied that it is more likely than not that the applicant will lose his current employment if he has to continue to rely on his Sri Lankan passport. It is clear to me that the applicant has a real need to be able to travel on an Australian passport. That is not however a sufficient ground for grant of Australian citizenship.
The applicant must satisfy the residence requirements himself or obtain a favourable exercise of discretion; in this case the discretion contained in sub-paragraph 13(4)(b)(iv).
I am satisfied that the very real prospect of losing employment in Australia is a disadvantage even more so than being refused employment. Where the prospective loss of employment is caused by the fact of not having an Australian passport, which in turn is caused by not being an Australian citizen, then the circumstances are clearly a severe disadvantage if the lack of a passport is the sole cause of the loss of employment.