Cheng and Minister for Immigration and Multicultural Affairs

[2006] AATA 548

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2006] AATA 548

ADMINISTRATIVE APPEALS TRIBUNAL          № V2005/802

GENERAL ADMINISTRATIVE DIVISION

Re:            NING CHENG

Applicant

And:MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

Respondent

DECISION

Tribunal:       Mr Egon Fice, Member

Date:23 June 2006

Place:Melbourne

Decision:The Tribunal affirms the reviewable decision dated 4 July 2005.

(sgd) Egon Fice

Member

MIGRATION – citizenship application – applicant not present in Australia at time of application – activities outside Australia beneficial to the interests of Australia

Australian Citizenship Act 1948 s 13

Minister for Immigration, Local Government & Ethnic Affairs v Roberts (1993) 113 ALR 151

REASONS FOR DECISION

23 June 2006  Mr Egon Fice, Member

1.      Mr Cheng applied for a grant of Australian citizenship on 19 November 2004.  On 4 July 2005 a delegate of the Minister for Immigration and Multicultural and Indigenous Affairs (the Minister) refused Mr Cheng’s application.  Because Mr Cheng was not present in Australia, he was required to demonstrate that he was engaged in activities outside Australia that are beneficial to the interests of Australia.  According to the Minister, Mr Cheng has failed to meet this requirement.  Mr Cheng seeks a review of that decision.

BACKGROUND

2.      Mr Cheng, a citizen of the People’s Republic of China, first arrived in Australia on 1 December 2001.  He had been granted a permanent residence visa on 16 August 2001.

3.      Mr Cheng, left Australia on 26 December 2003 and moved to Shanghai after obtaining employment with Philips Domestic Appliances and Personal Care (Phillips).  He has resided in Shanghai since that date, save for one brief visit to Australia in March 2005.  He lodged his application for the grant of Australian citizenship while outside Australia.  Mr Cheng is married to Ms Liyu Shen who is also a citizen of the People’s Republic of China.  Ms Shen holds a permanent residence visa for Australia. 

CONSIDERATIONS

4.      The grant of Australian citizenship under the Australian Citizenship Act 1948 (the Act) is dealt with in Division 2 of Part III of the Act. The grant of Australian citizenship to an applicant is subject to the Minister’s discretion where an applicant is able to satisfy the Minister that he or she meets the conditions set out in s 13(1) of the Act. Section 13(1) provides:

13 Grant of Australian citizenship

(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.

…

5. Subject to the character assessment under s 13(1(f)), the Minister accepts that Mr Cheng does satisfy the requirements of s 13(1). However, because Mr Cheng has not been present in Australia since 18 March 2005, s 13(1A) applies to his application. It provides:

13(1A) The Minister shall not grant a certificate of Australian citizenship to a person under subsection (1) at a time when the person is not present in Australia unless:

(a)the person is a permanent resident; and

(b)the Minister considers that the person is engaged in activities outside Australia that are beneficial to the interests of Australia.

…

6.      Mr Cheng’s problem is that in order to be eligible for a grant of citizenship, he must demonstrate that he is engaged in activities outside Australia that are beneficial to the interests of Australia. The phrase ‘beneficial to the interests of Australia’ was considered by Einfeld J in Minister for Immigration, Local Government & Ethnic Affairs v Roberts (1993) 113 ALR 151, where he said, at 156:

It seems to me 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 interests of the respondent.  The section requires some objective benefit to Australia.

7.      Mr Cheng was not able to put forward any objective evidence that his activities as an employee of Philips, based in Shanghai, are of any benefit to Australia.

8.      Mr Cheng, who gave evidence by telephone from Shanghai, suggested that his work as a manager for Philips had some beneficial effect for Australia as he was concerned with markets generally in the South East Asia region.  However, in my opinion, that activity does not satisfy the test.  That activity is engaged in for his personal interest and, in any event, he was not able to point to any objective evidence of activities which are beneficial to the public interest of Australia.  Mr Cheng also suggested that he was considering, in conjunction with his uncle, Mr Charles Cheng, the possibility of the establishment of a business between Australia and China.  Other than having considered such a proposition, there was no evidence that he had done anything concrete which would benefit the public interests of Australia.  I accept the Minister’s submissions that even if successful business activities eventuated, any benefit to Australia would be residual, remote, indirect and speculative, and would not have occurred at the time of the application.

CONCLUSIONS

9. It is clear that the grant of Australian citizenship depends significantly on the applicant meeting the residency requirements set out in s 13(1) of the Act. It contemplates a person being present in Australia as a permanent resident for certain qualifying periods and it also requires that the person is likely to reside or to continue to reside in Australia if granted the certificate. Section 13(1A) provides for an exception where a person is not present in Australia but is able to satisfy the Minister that the reason for his or her absence from Australia is that he or she is engaged in activities that are beneficial to the interests of Australia. An applicant relying on that exception needs to demonstrate, by objective evidence, that the activities which have compelled him to remain outside Australia are beneficial to the public interest of Australia. Mr Cheng has been unable to produce any objective evidence that his activities are beneficial to the public interests of Australia. Accordingly, his application must fail.

10.     The decision of the Minister made on 4 July 2005 should be affirmed.

I certify that the ten [10] preceding paragraphs are a true copy of the reasons for the decision herein of

Mr Egon Fice, Member

(sgd)       Olympia Sarrinikolaou

Clerk

Date of Hearing:  26 May 2006

Date of Decision:  23 June 2006
Solicitor for the applicant:          Nil – self‑represented

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