Anand and Minister for Immigration and Citizenship

[2008] AATA 89

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2008] AATA 89

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No  2007/1608

GENERAL  ADMINISTRATIVE  DIVISION		)
Re		RAJNISH ANAND

Applicant

And MINISTER FOR IMMIGRATION AND CITIZENSHIP

Respondent

DECISION

Tribunal Mr John Handley, Senior Member

Date4 February 2008

PlaceMelbourne

Decision The decision under review is affirmed.

(Sgd)  John Handley
Senior Member

  

CITIZENSHIP – off-shore application for Australian citizenship by a permanent resident – activities in Australia undertaken or initiated by applicant on behalf of his employer – not engaged in activities beneficial to the interests of Australia – decision affirmed

Australian Citizenship Act 1948 (Cth) s 13 (1) and s 13 (4) (b)

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

REASONS FOR DECISION

4 February 2008   Mr John Handley, Senior Member

1.      The applicant, Mr Anand, is a citizen of the Republic of India, currently residing in Singapore and who also enjoys permanent residency status of Australia.  By this application he applies to review a decision made by the respondent denying him Australian citizenship.

2.      The hearing was convened on 17 January 2008.  Mr Anand gave his evidence by telephone from Singapore.  He was unrepresented.  He did not call other persons in support of his application but did rely on a number of documents which will be referred to in these reasons.  Mr Forsaith appeared on behalf of the respondent.

3.      The applicant first arrived in Australia in February 1995.  But for some temporary absences he remained in Australia, initially on a student visa and then by other visas issued to him, until 4 July 2004.  On 22 July 2003 he was granted permanent residency.  He left Australia in July 2004 by a decision mutually agreed with his employer to manage its Singapore office.  He has remained living and working in Singapore since 2004 but for some temporary visits to Australia.

4. The applicant cannot satisfy s 13 (1) of the Australian Citizenship Act 1948 (the Act)  because he has not been, as a permanent resident, present in Australia for periods amounting to an aggregate of not less than one year during the period of two years preceding the date of the making of his application for citizenship (23 August 2006) nor has he been present in Australia as a permanent resident for a period aggregating not less than two years in the period of five years immediately preceding the date of the making of his citizenship application.  But for the criteria of good character (which was not assessed), the applicant otherwise satisfied all other parts of s 13 (1) of the Act.

5. This review is concerned principally with whether the applicant can satisfy s 13 (4) (b) of the Act and then, more particularly, whether it can be found that the applicant, was engaged in activities that the Minister considers beneficial to the interests of Australia during the period of time that he was a permanent resident but was not present in Australia.

the employer

6.      The applicant is employed by Marcus Evans which is described in its web page as an International Business Events and Information Company.  The applicant agreed with other data appearing within web pages namely, that Marcus Evans employs more than 3500 people in 32 countries.  Its product range includes the convening of summits, conferences and congresses.  The summits are described as high level business and economic sector products for the world's leading business decision makers.  The conferences are described as providing strategic business information, best practice and networking opportunities for senior decision makers.  The congresses are described as creating the opportunity for companies to explore new markets and to identify the latest developments in their industries breathing new life into one of the most effective sales, marketing and communication opportunities.

7.      Additionally, the web information promotes Marcus Evans as also providing executive education, language training, financial and accountancy training, corporate hospitality and business information.  (Refer

the applicant

8.      The applicant lived in Australia between 1995 and 2004.  He completed a double degree and eventually obtained employment with Marcus Evans in its Australian office.  In July 2003, permanent residency was granted and in July 2004, the applicant agreed to a transfer to the Marcus Evans office in Singapore to take up a position as General Manager.  In Australia the applicant was employed as a Senior Sales Manager.

9.      The applicant said that he intends to return to Australia and pointed to his links with this country namely, a number of close friends and associates, his fiancé being an Australian citizen and the recent purchase by him of real estate in Sydney.

10.     In his application for citizenship lodged with the Australian High Commission in Singapore (T‑docs, pp57 – 58) the applicant recorded that he had been involved in activities beneficial to Australia and the economy whilst residing outside Australia and maintaining strong ties with Australia.  As the General Manager for Singapore, he described his responsibilities as strategically working with our Australian production and operation teams – further expanding, developing and positioning Marcus Evans (Australia) as a leading provider of tech expo, defence and summits in Australia.  By reason of the growth of the Marcus Evans entity and by the applicant undertaking daily conference calls, he was able to formulate and deliver a platform which further strengthened business relations and encouraged new business initiatives through events between Australia and the rest of APAC especially Singapore.

11.     In evidence the applicant said that the events scheduled and produced by Marcus Evans attracted the attendance of persons from the Asia Pacific region which therefore positions Australia in the region.

12.     In cross-examination the applicant said that his work in Singapore was similar to the work that he undertook in Australia namely, training teams for the sales, production, topic generation and development of the Marcus Evans products being conferences, summits and congresses.  Additionally, in Singapore he was also responsible for human resource matters.  He reported to the Marcus Evans General Manager in the Asia Pacific region.

13.     The applicant said that the production and scheduling of conferences, summits and congresses in Australia encouraged good business relationships between Australia and the Asia Pacific, which raises the profile of Australia, it benefits the Australian economy, adds value to Australian businesses and creates exposure for Australian businesses to other global markets and initiatives.  The applicant said that he added value to both Marcus Evans and to Australia because the scheduling of the Marcus Evans products caused persons to travel to Australia which benefited the local economy by monies being spent on airfares, hotels and hospitality.  Australian persons in positions of responsibility with Australian corporations would be able to develop contacts and discuss business practices with overseas persons.  These features he said combined to increase the profile of Australia which was to its benefit.

14.     An example of the Marcus Evans events currently being produced for Australia involve conferences on the topic of climate change and practices in the mining industry.  (An examination of the Marcus Evans website indicates that conferences presently scheduled in Australia concern the topics of emissions trading, product development, product innovation and management for maintenance excellence.  At, or about the time that the applicant made his application for citizenship, there was a conference in Melbourne – in May 2006 – on the topic of RFID (Radio Frequency Identification) Project Management, and in November 2006 a conference on Urban Warfare in the Asia Pacific.  I also note that in August 2006, Marcus Evans convened the Second Annual Countering IED's (Improvised Explosive Devices) Asia Pacific 2006, promoted as combining technology and training with best practices to defeat IED threats.  Whilst the latter conference was convened in Singapore a number of the advertised guest speakers were from Australia and held high ranking positions in either the military or law enforcement agencies.  The products referred to in this part are recorded as an example of the diverse nature of the topics conceived by Marcus Evans as worthy of convening as conferences, congresses and summits.

conclusion and reasons for decision

15.     I acknowledge that the applicant intends eventually to return to Australia and I note from his letter lodged with the High Commission in Singapore that he still calls Australia home.  I acknowledge that he owns property in Sydney and frequently travels to Australia to visit friends and family members.

16. However, for reasons which follow, I am not satisfied that the applicant satisfies s13 (4) (b) of the Act.

17.     Having regard to the applicant's age of 31 years, it would appear that he is highly regarded by his employer.  That he was asked to leave Australia where he was a permanent resident to manage the Singapore office of his employer and be given additional responsibilities, indicates to me, that he is proficient and highly qualified to undertake and complete the duties required by his employer.  But it would appear that those activities are of a private nature undertaken as an employee and exclusively for the benefit of his employer, an international corporation.  I also note that the corporation Marcus Evans Pty Ltd was deregistered from the ASIC index of corporate and business names on 23 July 2006 and had not been re‑registered.  This latter fact was put to the applicant in evidence and whilst he acknowledged that Marcus Evans had an Australian office he was apparently not aware that it had been deregistered.

18.     Nonetheless, whilst the events produced by Marcus Evans no doubt attract senior persons from management, commerce and defence related industries, the benefit to Australia is, in my view, speculative and remote.  Indeed the applicant's Chief Operating Officer, Mr Conway in a letter of 14 July 2006 (T‑docs p53) records in part:

We confirm that he is engaged in activities beneficial to the interests of Marcus Evans (Australia) . . .

The letter continues:

. . . his services are of value to Australia whilst working on [sic] overseas are in the following categories.

1.Training – he is able to train staff and provide input in the development of members of the Asia Pacific sales teams that are particularly relevant to the Australian market;

2.In producing and developing products for utilisation in the Australian market;

3.Many of the product and services areas that he works on overseas are of direct relevance for onward sale in the Australian market.

19.     The leading authority continues to be Minister For Immigration, Local Government and Ethnic Affairs v Roberts (1993) 29 ALD 656 (Roberts) where Einfeld J decided 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 interest of the respondent. The section requires some objective benefits to Australia.

20.     There are a number of features of this application which have influenced me in the decision which will ultimately be made.  The first is the absence of any personal involvement or engagement by the applicant in his activities whilst overseas which have been to the benefit of the interests of Australia.  It seems to me that the applicant has been personally engaged whilst overseas in activities which benefit his employer.  The second feature is the absence of any evidence or references or testimonials by any persons who have attended any of the summits, conferences or congresses which record that attending such events has been to the benefit of that person or their company or organisation which in turn has been to the benefit of Australia.  For example, it would not be difficult to envisage the benefit to Australia of attending the Urban Warfare Asia Pacific conference in November 2005, it being a conference concerned with the risk of international and domestic violence and terrorism.  The absence however of any evidence from any person who attended that conference and the consequent absence therefore of evidence of the benefit to Australia by those persons attending such a conference, fails to satisfy me that the applicant, personally, was engaged in activities, by that conference and similar other initiatives, that were beneficial to the interests of Australia. 

21.     In Roberts the applicant asserted that his work overseas, involving Australian industry was of benefit to Australia.  His Honour recorded . . . to reach such conclusions, some evidence would have been required demonstrating the benefits propounded.  Those sentiments, in my view, apply in the present application.  Additionally, there is nothing which points to Australia being promoted or Australian businesses being strengthened, or new business initiatives being identified (refer paragraph 10 earlier). The evidence of the applicant does not satisfy me that he meets the standards required at s 13 (4) (b) of the Act. At its highest, the beneficial interest to Australia by his activities on behalf of his employer are no more than hypothetical. In concluding this part, there is nothing which satisfies me that training of Australian staff (by conference telephone) and their activities in Australia are beneficial to Australia's interests.

22.     In conclusion, I also note that the applicant does not satisfy the Ministerial Guidelines to the extent (paragraph 4.3.21) that he was required to work overseas by a private employer.  The applicant said in evidence that the decision to move to Singapore was mutually agreed.  That is to say, he was not required to work in Singapore.  Additionally his activities overseas were not 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 or prominent persons associated with the applicant's field of endeavour.  For reasons given earlier, I am not satisfied that the applicant's activities are clearly beneficial, there was no evidence of his activities being widely recognised by the Australian community generally or by prominent persons associated with the applicant's field of endeavour.

23.     Consistent also with Ministerial Guidelines 4.3.22 a discretion would normally not be exercised if the applicant for citizenship is overseas.  Perhaps this Guideline intends to fetter the discretion against granting citizenship for a person who, having been granted permanent residence, decides to live overseas and make application for citizenship offshore.

24.     For the above reasons the decision under review will be affirmed.

I certify that the 24 preceding paragraphs are a true copy of the reasons for the decision herein of:
Mr John Handley, Senior Member

Signed:         Grace Carney, Personal Assistant

Date of Hearing  17 January 2008
Date of Decision  4 February 2008
Solicitor for the Applicant          Self Represented
Solicitor for the Respondent     Mr J Forsaith, Australian Government Solicitor