Chiu and Ors and Minister for Immigration and Multicultural and Indigenous Affairs - [2002] AATA 604

DECISION AND REASONS FOR DECISION [2002] AATA 604

ADMINISTRATIVE APPEALS TRIBUNAL )

) No V01/1230

GENERAL ADMINISTRATIVE DIVISION       )          V01/1231      V01/1232
           Re      MICHAEL CHIU JUDY CHIU MUN DR. SHUNG CHOU CHIU
  Applicant
           And    MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
  Respondent

DECISION

Tribunal Mrs Joan Dwyer, Senior Member

Date22 July 2002
PlaceMelbourne

Decision      The Tribunal affirms the decisions under review.
  (Sgd) Joan Dwyer
  Senior Member
AUSTRALIAN CITIZENSHIP – application for Australian citizenship – failure to satisfy residence requirements – discretion to treat period when applicants not present in Australia as a period in which they were present if engaged in activities beneficial to interests of Australia – meaning of "beneficial to the interests of Australia" – relevance of policy Guidelines – significance of "prior primary identification with Australia" or commitment to Australia – decisions affirmed.
Australian Citizenship Act 1948 s 13(1) and (4)

Drake v Minister for Immigration and Multicultural Affairs (1979) 2 ALD 60

Re Fraser and Minister for Immigration, Local Government and Ethnic Affairs (AAT Decision No S91/205, 15 October 1991).

Re Kao and Minister for Immigration and Ethnic Affairs (1993) 30 ALD 916

Re McCarthy and Minister for Immigration, Local Government and Ethnic Affairs (1993) 30 ALD 447,

Re Wang and Department of Immigration and Multicultural Affairs (AAT 12747, 6 March 1998)

REASONS FOR DECISION

22 July 2002 Mrs Joan Dwyer, Senior Member

This is an application for review of decisions of a delegate of the Minister for Immigration and Multicultural and Indigenous Affairs made on 23 August 2001 to refuse the applications of Dr Shung Chou Chiu, Mrs Judy Mun Chiu and Michael Chiu for grant of Australian citizenship. The decisions were made under s 13 of the Australian Citizenship Act 1948 ("the Act").
At the hearing Mr Goetz of Counsel appeared for the applicants. Mr Wood, a solicitor with Blake Dawson Waldron, appeared for the Minister for Immigration and Multicultural Affairs. The Tribunal had before it the documents ("the T documents") lodged pursuant to s 37 of the Administrative Appeals Tribunal Act 1975 ("the AAT Act") and also the exhibits tendered during the hearing.
The requirements for a grant of Australian Citizenship are set out in s 13(1) of the Act:
13. (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 18 years of age;
(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 possess 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.
The only aspects of s 13(1) as to which there is any issue are paragraphs 13(1)(d)(e) and (j). Paragraphs 13(1)(d) and (e) are modified by s 13(4)(b)(i) which provides:
(4)For the purposes of the application of subsection (1) in relation to an applicant for the grant of a certificate of Australian citizenship:
(b)subject to paragraph (a), the Minister may, in the Minister's discretion:
(i)treat a period during which the applicant:
(A)was a permanent resident;
(B)was not present in Australia; and
(C)was engaged in activities that the Minister considers beneficial to the interests of Australia;
as a period during which the applicant was present in Australia as a permanent resident;
The respondent's Statement of Facts and Contentions submitted at paragraphs 7 and 8:
The Act requires at the outset that an applicant has spent a significant amount of time in Australia in the years preceding the application. The legislature clearly views physical presence in Australia of a permanent resident to be a priority. Citizenship of Australia involves links to and commitment to Australia in a real and personal way.
The legislation provides for an exception to the general rule regarding periods spent in Australia. However, this exception is discretionary and still requires the decision maker to focus on an equivalent period spent overseas on activities which may have been beneficial to the interests of Australia. The discretion turns on the 'period' during which these activities were engaged. It is not enough to consider only the nature and extent of the activity without taking into account the first applicant's time spent on the activity. In this case, the period for the purposes of section 13(4) is April 1995 to April 2000 (the "relevant period"). It is only activities undertaken during this period which are relevant to the application.
The evidence is that Dr and Mrs and Michael Chiu are residents of Hong Kong. The applicants' Statement of Facts and Contentions states at paragraph 5:
The Chiu family migrated to Australia on 21 December 1991 and their Australian permanent residence status will expire on 27 February 2005.

There was no evidence as to how the Chiu family obtained "permanent residence status." The stamps on the passport entries in the T documents at pp.80-81 do not clarify the matter. Both Dr Chiu's and Mrs Chiu's passports have stamps stating:

Class BB Resident Return Sub Class 155 Conditions Mig. Regs. Sched.8 Nil.
Granted 07 Feb 00. Multiple travel. Must Not Arrive After 07 Feb 05. Holders Permitted to Remain in Australia Indefinitely.

Dr Chiu in his evidence explained the factors which had led him to explore the possibility of leaving Hong Kong and moving to either the USA or Australia. He said that over the last ten years there had been an oversupply of doctors and changes in government policy to provide a better public health service. He said this affected his income and his patient numbers. I have some doubt about the reliability of that evidence in view of other evidence Dr Chiu gave to the effect that he only works two hours a day in his medical practice and still sees 20 patients a day and earns AUD$15,000.00 a month. The other factor to which he referred was the political situation once China determined to take back Hong Kong. Dr Chiu said he had a horror of Communism and began to think of emigration then, but it was not practical for him in the early 1980s.
In 1986 Dr Chiu was ready to apply for permanent residency in other countries. He was not eligible to apply to Australia at that time. He and Mrs Chui applied for permanent residency in the USA, where Mrs Chiu has a brother. They obtained that status in 1999, but having twice spent a week in the USA he decided the lifestyle there did not suit him. As a result, Dr and Mrs Chiu relinquished their USA Lawful Permanent Resident Status in 1999 (T docs pp 451-455).
In 1990 the Australian immigration requirements changed and Dr Chiu said he contemplated migrating here. He and Mrs Chui applied for permanent residence visas. I was informed that their applications were granted in 1991. Dr Chui gave evidence that the Chui family migrated to Australia in 1993, intending to settle in Adelaide, as that was the only State which recognised his medical degree. Dr Chiu said that he could not find employment as a doctor in a hospital. As he felt that was necessary to learn how to practice medicine in Australia and as he could not sell his practice in Hong Kong for a price he considered acceptable, he returned to Hong Kong. In answer to a question from the Tribunal Dr Chiu said that he took rented accommodation in Adelaide for about six weeks.
The respondent did not dispute the assertions in paragraph 5 of the applicants' Statement of Facts and Contentions. The evidence does not support the assertion that Dr and Mrs Chiu "migrated" to Australia on 21 December 1991 as claimed in the applicants' Statement of Facts and Contentions. Exhibit R1 shows that they did not enter Australia until 27 December 1991 and on that visit they stayed only seven days. They did not return until more than 12 months later when they stayed for four days. There is no evidence that they have ever made their home in Australia. The applications for grant of Australian Citizenship were lodged by their solicitor by hand, by letter dated 27 April 2000. At that time both Dr Chiu and Mrs Chiu were present in Australia. They arrived on 26 April and left on 28 April 2000.
At the Tribunal's request the parties prepared and lodged, as exhibit R1, an agreed statement setting out Dr and Mrs Chiu's arrivals and departures since they were first granted Australian permanent resident visas. The exhibit contains a number of repetitions. When it is corrected and the information is analysed to show the number of days in Australia on each visit the information is as follows:

Dr Shung Chou Chiu – Travel Movement Details to and from Australia
Note: number of days is inclusive of days of arrival and departure

Entry Arrival Departure No of days in Australia
1991/92 (first entry) 27/12/91 02/01/92 7

1992 29/01/92 01/02/92 4
27/12/92 30/12/92 4

1993 02/08/93 09/08/93 8

1994 13/08/94 21/08/94 9

1995 31/01/95 06/02/95 7
05/07/95 09/07/95 5

1997 27/12/97 29/12/97 3

1998 15/08/98 19/08/98 5

2000 06/02/00 12/02/00 7

2000 26/04/00 28/04/00 3 (applications for citizenship lodged during this visit)

2002 30/06/02 NA NA (Tribunal hearing held on 1 July 02)

Mrs Chiu did not travel with her husband on his January 1992, 1997 and 1998 visits. She has not made any visits without Dr Chiu since 27 December 1991.

When the Tribunal received the information it had requested as to arrivals and departures, it was apparent that Dr Chiu had not stayed in Adelaide for six weeks, or for anything like that period. In 1993 he was in Australia for one week only, even counting both the day of arrival and the day of departure as days present in Australia. Even if he was confused, and was referring to 1994, he spent only a maximum of nine days in Australia and that is the longest period he has ever spent here since obtaining his permanent resident status. Mr Goetz conceded that Dr Chui's evidence on that issue had been mistaken.
The relevant two years for paragraph 13(1)(d) are the two years from 26 April 1998 to 26 April 2000. During that period, paragraph 13(1)(d) requires presence in Australia for periods amounting in the aggregate to not less than one year. In respect of paragraph 13(1)(e) the relevant period is from 26 April 1995 to 26 April 2000. During that time, presence in Australia for periods amounting to two years is required. The total time Dr Chiu has spent in Australia since he was granted a permanent resident visa more than ten years ago, is 62 days. As to paragraph 13(1)(d) of the Act, he has been present in Australia as a permanent resident for 13 days instead of one year in the relevant two year period. He has been present in Australia for 21 days instead of two years in the relevant five year period prescribed by s 13(1)(e). Mrs Chiu has been present in Australia as a permanent resident for eight days instead of one year in the relevant two year period, and 13 days instead of two years in the relevant five year period.
Dr Chiu sought to have the period he was engaged in activities as a director of a family company, Sambest International Pty Ltd ("Sambest"), and of two companies in the Pacific Fish Group, Pacific Fish (QLD) Pty Ltd and Pacific Fish (SA) Pty Ltd ("Pacific Fish"), treated as a period during which he was present in Australia as a permanent resident pursuant to s 13(4)(b)(C). Mrs Chiu made a similar claim although she has never been a director of Pacific Fish.
The evidence is that Sambest was engaged in two forms of activity, property development and export of Australian products, mainly fruits and wines. Pacific Fish is engaged in the export of live coral trout and lobster to Hong Kong and mainland China.
The interpretation of the term "activities that the Minister considers beneficial to the interests of Australia" was considered by Einfeld J in Minister for Immigration, Local Government and Ethnic Affairs v Roberts (1992) 113 ALR 151 at p156-157. His Honour said:
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.
The importance to Australia of the Australian oil industry cannot be doubted. Although there was no evidence in this case on the specific importance of the construction of oil rigs, it was reasonably open to the tribunal to find that oil rig construction, as an intrinsic part of the Australian industry, is itself a benefit to Australia. But it is quite another matter as to whether the construction of rigs in the United Kingdom and Brunei represent any such benefit, still less whether Mr Roberts' work as a rigger at those places was advantageous to this country. To reach such conclusions, some evidence would have been required demonstrating the benefits propounded. For example, if the person concerned was studying or using new techniques or materials with a view to introducing them to Australian construction, or if he was taking Australian technology to these places, the benefits would be established. If it was established that experiences overseas increased the particular person's chances for remunerative work and advancement in the industry in Australia, a relevant advantage may well be evidenced. Even if the particular person paid Australian tax on the wages earned in such places, Australia might derive some benefit. Unlike the tribunal, I regret being unable to see the nexus between Mr Roberts' overseas work and our natural resource and employment policies.
Even with the assistance given by the decision of Einfeld J in Roberts, it can be difficult to apply s13(4)(b)(i). There are published criteria giving some indication as to the activities considered beneficial to the interests of Australia. Mr Wood did not assist the Tribunal by explaining their role. They are found in Australian Citizenship Instructions Chapter 4 – Grant of Australian Citizenship – Criteria for Grant ("the Guidelines") at paragraphs 4.5.10-4.5.13 (T19). The relevant paragraphs read as follows:
4.5.10Periods in which the applicant was outside Australia and engaged in activities beneficial to the interests of Australia may be counted towards the residence. This discretion is available for both residence requirements (ie both "2 years in the last 5" and "1 year in the last 2").
4.5.11The legal preconditions for use of this discretion are as follows:
·the periods concerned must be within the relevant period (ie the 5 years and/or 2 years before application);
·for any periods counted, the applicant must be a permanent resident (see 1.4 above);
·the applicant must have been engaged in activities overseas (not just, for example, the company or organisation for which the applicant worked);
·the applicant must have been engaged in activities as opposed, for example, to a one-off transaction;
·the activities must be during the relevant period/s under consideration;
·the activities must have been "beneficial to the interests of Australia" during the relevant period/s. The provision will not apply on the basis of future benefits potentially accruing to Australia (McCarthy AAT case).
4.5.12In assessing whether activities are beneficial to the interests of Australia, consider the following:
·It requires "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…and means more than the private interests of the [applicant]. The section requires some objective benefit to Australia." (Federal Court in Roberts.)
·It requires "something in the nature of activities which achieve recognition of Australia or of Australian achievements or commercial recognition of Australia or of Australian achievements or commercial advantage for Australia, or increase the international respect and goodwill for Australia… [it] refers to the public interests of Australia." (AAT in Fraser.)
·"The claim that the applicant's employer has enhanced the reputation of its Australian parent company and Australian companies in general, falls short of demonstrating the applicant's activities were beneficial to the interests of Australia." (AAT in McCarthy.)
4.5.13"There should be a close nexus between the overseas activities and the subsequent benefit to Australia to exercise the discretion" (AAT in Tsui). The benefit should be largely as a result of the applicant's activities and must not be residual, remote, indirect or speculative (see, for example the AAT case of McCarthy).
4.5.14If the discretion is available, current policy is that decision-makers should normally follow the guidelines approved by the then Minister in August 1985 that the discretion will usually only be exercised if all of the following requirements are satisfied:
(a)The applicant was:
(i) either for an extended period or on a regular short-term basis:

required to work overseas by a Federal, State or Territory Department, semi-government authority or private employer; or
self-employed and frequent travel abroad was essential to the successful operation of their business; or
(ii) engaged overseas in activities 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 generally; or
prominent persons associated with their field of endeavour (for example, people engaged in aid programs, artists and entertainers of world standing).
(b)The applicant has established a prior primary identification with Australia, intends to continue to live in Australia and can show that he or she has commitments here such as substantial assets, or has close ties with the business community, or has family members established in the country. See further 4.5.15 below.
(c)The applicant is in Australia. If the applicant is overseas, the discretion will not normally be exercised.
4.5.15In assessing (b) above:
The primary identification should be evidenced by reference to matters prior to the application for citizenship.
Relevant factors include whether they can show they have commitments here such as substantial assets, close ties with the business community, or family members established in the country and that those communications outweigh those which they have in any other country.

The applicant's physical and emotional ties with Australia should be weighed against ties in any other country (for example residence, house, schooling of children, residence of spouse, citizenship held by immediate family, business ties, family and friends ties, and general identification.)
"The weight of the applicant's physical and emotional inclinations to Australia should exceed the weight of the applicant's inclination to any other country. Physical inclinations are assets and time spent in residence. Emotional inclination can be assessed by taking into account the record of the applicant's supportive actions directed towards the citizens of the country (usually family) and towards the enhancement of activities which constitute the public policy of the country." (AAT in Tse.)
More weight should be given to emotional inclinations as emotional ties tend more to bond the individual to a country. Emotional bonding leads to a higher level of identification with a country than physical or material transactions because physical links can be more easily engineered to demonstrate commitment.
Usually the strongest identifying factor to a place is having friends and relatives living there. Home is the critical point.

The evidence is that Sambest engaged in construction of six units at 5 and 5A Lovell Road, Eastwood, NSW. Dr and Mrs Chiu were in Hong Kong while the development was being built. By Deed dated 30 November 1995 Sambest engaged a project manager for the construction (T docs pp 719-733). There was no emphasis on this activity. It does not satisfy the test in Roberts. There is no evidence that the development provided any advantage to the public interest of Australia.
The other activity in which Sambest was engaged during the relevant period was the export of canned abalone, fruits and Australian wines. At paragraph 9 of the applicants' Statement of Facts and Contentions the value of those exports is shown as follows:
Financial Year         Export Value (AUD)
(a)       1999/2000      48,004.00
(b)       1998/1999      76,800.00
(c)       1997/1998      80,950.00
(d)       1996/1997      105,817.00
(e)      1995/1996      5,274.00
(f)        1994/1995      180,760.00
(g)       1993/1994      29,116.00 $526,721.00

The T documents, at T12-14, contain 500 pages of documents lodged by the applicants' solicitors in support of their applications. Some pages relate to the export of Australian wines and fruits by Sambest. So far as I was informed, no analysis of these pages had been made by or on behalf of either the applicant or the respondent. They establish that Sambest did indeed make some sales of abalone, fruits and vegetables and Australian wines to Hong Kong (Tdocs pp 603-642).
The only ways in which the activities of Dr and Mrs Chiu on behalf of Sambest were submitted to be activities beneficial to the interests of Australia were that Sambest introduced Australian produce to Hong Kong purchasers and brought export dollars to Australia. There was no evidence as to whether the quantity of sales achieved by Sambest made any appreciable difference to the Australian market. The evidence on that issue falls far short of satisfying the test in Roberts. There was no evidence as to whether the Australian wine and fruit industries benefited by the sales negotiated by Mrs Chiu on behalf of Sambest. There was no evidence that those markets were not adequately serviced by other suppliers, or that Sambest sales had been in any way innovative or particularly significant to Australia.
I do not find that the activities in which Dr and Mrs Chiu were engaged on behalf of Sambest were activities beneficial to the interests of Australia.
There was a better case in regard to the activities of Pacific Fish of which Dr Chiu was one of, he said, 10 founding directors. The return of directors at T docs pp 220-221 shows that, as at 7 February 2000, he was one of 13 directors.
Dr Chiu said that because Sambest did not bring in much income he discussed another project with friends. They came up with the idea of selling live lobsters and fish to restaurants in Hong Kong and mainland China. He said because it would require a great deal of money he formed two companies, Pacific Fish (SA) Pty Ltd, to sell live lobster, and Pacific Fish (Qld) Pty Ltd, to sell live coral trout. The T documents at p 236 indicate that there are at least two more related companies. Dr Chiu said the companies were formed in 1997 and started trading in 1998, but the trade was low that year.
The applicants' Statement of Facts and Contentions at paragraph 12 stated:
On 30 June 2000
(a)Pacific Fish (QLD) Pty Ltd exported AUD5.4 million of live fish to Hong Kong and China; and
(b)Pacific Fish (SA) pty Ltd exported AUD3.4 million live rock lobsters to Hong Kong and China.
In opening Mr Goetz said that in the two subsequent years those figures have increased substantially. He tendered as exhibit A3 profit and loss accounts for the years ended 30 June 2001 and 30 June 2002 for Pacific Fish (Qld) Pty Ltd, and profit and loss accounts for the year ended 30 June 2001 for Pacific Fish (SA) Pty Ltd. They show that in the year ended June 2001 Pacific Fish (Qld) exported AUD 5 million of live fish and in the year ended June 2002 the figure had risen to AUD 9.7 million. For Pacific Fish (SA) the figure for the year ended June 2001 was AUD 4.1 million.
Mr Wood submitted that the Tribunal should not accept into evidence the documents showing the Profit and Loss figures for the Pacific Fish companies for the years ended 30 June 2001 and 30 June 2002. He submitted that they relate to a period after the relevant period. The Tribunal rejected that submission on the ground that accounts and Profit and Loss figures for a company in subsequent years can show the beneficial nature of the activities of the company in the preceding years, when the company was building the base for its profitable performance in subsequent years. That approach was adopted by Deputy President Gerber in Re Wang and Department of Immigration and Multicultural Affairs (AAT 12747, 6 March 1998) in which he stated at paragraph 17:
It was further submitted, in purported reliance on several authorities, that the term "beneficial to Australia" must result in an immediate benefit to this country, as distinct from some time in the future. I indicated during the hearing that I could see nothing in the Act which would support such a proposition, hazarding the view that it must be a rare event where an export drive for any product would result in immediate benefits to the exporting country.

I agree with that analysis which is consistent with that in Re Kao and Minister for Immigration and Ethnic Affairs (1993) 30 ALD 916; Re Pai and Minister for Immigration and Ethnic Affairs (1994) 35 ALD 762; and Re Chai and Minister for Immigration and Ethnic Affairs (1994) 36 ALD 751. I prefer that approach to the view expressed in Re McCarthy and Minister for Immigration, Local Government and Ethnic Affairs (1993) 30 ALD 447, at p 448, that the activities which enliven the Minister's discretion must be demonstrated to be beneficial at the time at which the applicant is engaged in them. As explained in Re Chai, it depends on the nature of the activities in each case, whether the results of beneficial activities will be immediately apparent.

For the same reason I rejected Mr Wood's related submission that if the Tribunal accepted the accounts for the years ending 30 June 2001 and 2002, it should place little weight on the accounts for the period after 27 April 2000. I consider it is appropriate to note not only the value of the exports in the relevant years, but also the profit or loss. The accounts show that Pacific Fish (Qld) made a net loss of $169,300.07 in 2001, but a profit of $212,744.97 in 2002, and that Pacific Fish (SA) made a net loss of $154,556.24 in 2001. No figures were provided for Pacific Fish (SA) in 2002.
The T documents do not include any accounts for Pacific Fish prior to the year ending 30 June 2000. From the summary of sales at Tdocs pp 237-244, it appears that is because sales only commenced on 2 October 1999. If achieving high levels of export sales is an activity beneficial to the interests of Australia, then Pacific Fish had done so by 30 June 2000 (Tdocs pp 233-244).
Dr Chiu in evidence explained the technical difficulties of shipping live seafood. He produced and explained photographs (A1) showing the tanks used for transporting live coral fish and the packing in cartons of live lobster. He explained that through trial and error Pacific Fish had learnt that fish mortality is reduced if the fish are kept in tanks in a factory in Cairns for a day before being airfreighted. He said "we gathered information from fishermen, technicians and electricians", as to matters such as the amount of oxygen required in the tanks and the ideal temperature and acidity. Bearing in mind the very limited number of days Dr Chiu spent in Australia in 1996, 1997 and 1998, namely no days in 1996, three days in 1997 and five days in 1998, I find the part Dr Chiu played in the gathering of information personally from Australian fishermen, technicians and electricians could not have been great. That is relevant to the issue of his general involvement in the activities of Pacific Fish. However it is Dr Chiu's involvement in Pacific Fish activities when he is not present in Australia, which is relevant to the issues for determination.
Dr Chiu explained the work he claims he personally performs in Hong Kong for Pacific Fish. He said he finds potential buyers and he goes to the airport almost daily to check the condition of the live seafood on arrival. His major task is checking on the mortality of fish delivered. He said that, for deliveries to Hong Kong, he goes to restaurants and he and the buyer check the deliveries together. He produced samples of record sheets on which agreed weights and quality and mortality figures are entered (A4). None of those record sheets related to the relevant period. The earliest was 18 May 2002. Dr Chiu said there were no similar sheets relating to the relevant period. In regard to deliveries which go to mainland China he does a mortality check at the Hong Kong airport, but other checks are done on a less frequent basis by another director of the company in mainland China. Dr Chiu said he keeps in contact with the buyers, and checks that they are happy with the quality. He makes up orders and writes out invoices and also chases up payment for products delivered. Mrs Chiu helps with some of those activities. Dr Chiu said she assists with collecting payment. She said she also went with Dr Chiu to the airport.
Dr Chiu said that he has cut back the hours he spends in his specialist medical practice to two hours a day, and now spends approximately one to two hours a day on paperwork for Pacific Fish and two to three hours a day on collecting fish. Deliveries arrive in Hong Kong on Wednesdays, Thursdays and Saturdays and sometimes more frequently and he also devotes additional time in the evenings to Pacific Fish, having meetings and dinner with buyers.
One difficulty with all the evidence Dr Chiu gave as to the activities he performs on behalf of Pacific Fish, is that neither Mr Goetz nor Mr Wood endeavoured to establish a time frame for those activities. They did not establish when Dr Chiu started finding potential buyers for Pacific Fish, or when he started going to the airport to check the condition of live seafood on arrival in Hong Kong, and checking deliveries with restaurant owners. If, as is suggested by paragraph 12 of the applicants' Statement of Facts and Contentions and by the documents headed "Customer Sales Summary 2/10/99 through 30/6/00" (T docs pp 237-241) and "Item Purchases Summary 2/10/99 through 30/6/00" (T docs pp 242-244), export sales only commenced from 2 October 1999, then Dr Chiu would not have performed any of the duties he described, other than perhaps seeking to find future buyers, until October 1999. Similarly, the fact that there are no sales record sheets before May 2002 was not explored with Dr Chiu. Nor was evidence given as to when Dr Chiu claimed to have reduced the hours he spends in his medical practice to two hours a day, so that he can be active in duties relating to receiving air freight and delivering live fish and lobsters to restaurants. On the evidence before me I find that this would not have occurred before 2 October 1999.
The activities in which Pacific Fish is engaged may satisfy the criteria suggested by Einfeld J in Roberts. According to Dr Chiu's unchallenged evidence the company utilises new techniques and technological knowledge, which could be Australian based, although the evidence did not clarify this point. The cost of the exports would appear to be large, that may indicate that the activities are beneficial to the interests of Australia and in particular to the Australian fish industry. In cases like Re McCarthy and Re Tinamisan and Minister for Immigration and Multicultural Affairs (1996) 43 ALD 349, the broad argument that any export activities by Australian companies were by their very nature beneficial to the interests of Australia was rejected.
In Re Tinamisan Deputy President Chappell said at p 354 paragraphs 28 and 30:
The principal difficulty with the case advanced by the applicant, according to Mr Sullivan was to show that there was some objective benefit to Australia, to use Einfeld J's words, from the activities undertaken by Mr Tinamisan in Cambodia. Mr Sullivan said that the Tribunal, in cases like Re McCarthy and Minister for Immigration, Local Government and Ethnic Affairs (1993) 30 ALD 447 had rejected the broad argument that any export activities by Australian companies were by their very nature beneficial to the interests of Australia. Much more was needed to satisfy the requirements of section 13(4)(b)(i). The applicant had to demonstrate by specific evidence what those benefits to Australia were and establish a nexus between the activities and the benefits said to have been gained.
Turning to the specifics of the case and the evidence presented on behalf of the applicant, Mr Sullivan said the following:
Mr Tinamisan has given evidence that he is part of an organisation that has facilitated the rehabilitation of Cambodia. Mr Tinamisan's organisation is a commercial one. That organisation is dictated to by a French company which fully owns that company. Mr Tinamisan's activities and, indeed, the activities of Banque Indosuez may well be beneficial to the interests of Cambodia... Banque Indosuez is a profitable organisation. Its activities are run on the basis of generating profits for its shareholders. There is nothing, I would suggest, in its charter or in its mission in Cambodia which specifically says one of your objectives is the rehabilitation of the Cambodian economy. Were a commercial decision to be made in respect of Banque Indosuez activities in Cambodia, that decision would be made based on the benefit to the shareholders in France, not in terms of whether it would have an adverse or positive effect in respect of the Cambodian economy. The effect on the Cambodian economy no doubt would be taken into account but if the net benefit, if the Cambodian economy actually was to suffer some adverse consequences but the net benefit to the French company was in fact established, then I would suggest that the decision would be made in that respect and I would suggest that this is the dangerous aspect of the arguments.
You have a broad brush statement from the Minister for Foreign Affairs and Trade that the rehabilitation of the country is in Australia's interests. You then have an assumption made that the activities of Banque Indosuez in Cambodia must necessarily be for the rehabilitation of the company with very little evidence to show that that is in fact true and we are just asked to accept that. This is the problem with the very broad approach that is taken in this case with no access to objective facts regarding the benefit, direct benefit to Australia and the nexus to the activities (transcript at 29-30).
Having given very careful consideration to the submissions made by both Mr Jones and Mr Sullivan, and to the evidence before it, the Tribunal is of the opinion that the applicant has failed to advance sufficient evidence that his activities in Cambodia did provide "some objective benefit to Australia" in the way that term has been defined by Einfeld J in Roberts, above. The activities which were engaged in by Mr Tinamisan would seem to have been predominantly in the private interests of his employer, and himself.
On the other hand in Re Wang and Re Li and Department of Immigration and Multicultural Affairs [1999] AATA 897, the Tribunal accepted that activities developing markets for Australia exports were beneficial to the interests of Australia. In Re Wang, the Tribunal said at paragraphs 8 and 10:
[S]ince the Minister does not consider exports over a two year period, worth in excess of $A1m, achieved solely as a result of Mrs Wang's absences from Australia, to be sufficiently "beneficial to Australia" to justify the exercise of his discretion to grant her Australian citizenship, I must ask myself what business migrants must do to satisfy the "beneficial to Australia" test.
Mrs Wang explained her frequent absences from Australia persuasively on the basis that it is essential for her to be in the countries to which she seeks to export Australian goods, and that being physically on the spot is the only way to develop her export business, a process involving dealing with, and entertaining, numerous business people as well as seeing various government authorities in Hong Kong, Taiwan and China. She is currently engaged in complex negotiations for the export of wool to China and elevators for a 15 story building which is to be erected in one the Chinese provinces. If either of these negotiations succeed, it will result in substantial export earnings for this country. In addition, she is presently negotiating for a contract involving the sale of power generating equipment to Nin Xia ( a province of China) which, if it were to succeed "could be worth $A100m [in export earnings]" to this country. Both the elevators and power generating equipment are long-term projects which will not earn export income in the immediate future; indeed, her negotiations may not even succeed. However, I do not believe that to be the test.

In Re Li the Tribunal was considering the activities of a company engaged in the export of tallow and sheepskins from Australia to China. It said at paragraph 15:

The benefit of Mr Li's activities is not confined to the obvious and direct benefit to Mr Li and Five A but extends to a wider community. It is reasonable to infer that by developing markets of the kind secured by Five A, there is a flow on benefit to primary production in the form of returns to livestock producers and the meat industry generally in Australia. China is Australia's 5th largest trading partner: Austrade OnLine - Overseas Markets.

Some assistance in deciding whether or not activities are beneficial to the interests of Australia is derived from the Guidelines. The Act in s 13(4) refers to "activities that the Minister considers beneficial to the interests of Australia". There was no direct evidence before the Tribunal as to how the Minister or a delegate arrives at a decision as to whether or not he or she considers activities to be beneficial to the interests of Australia. The extract at T19 from the Guidelines does not indicate by what authority those instructions have been published, nor to whom they are addressed. Mr Wood did not explain whether there is any Ministerial endorsement or approval of those instructions.
In Re Dainty and Minister for Immigration and Ethnic Affairs (1987) 12 ALD 416 Davies J, President, referred to policy guidelines under the Act. They were not identical to those in T19. His Honour decided not to apply them to the matter before him. He said at pp 417-8:
In the present case, it would, in my opinion, be wrong to treat the Minister's guidelines as binding criteria. The discretions conferred by s.13(4)(b)(iv) and by s.13(9)(c) establish for themselves guides to the matters to which attention ought to be given. S.13(4)(b)(iv) looks to "significant hardship or disadvantage". It would be wrong in my view to apply strictly a guideline which omits contemplation of business hardship and disadvantage. The discretion, moreover, looks to periods of presence in Australia which ought to be treated as periods of permanent residence. In my opinion, this requires attention to be given to the nature or character of the presence in Australia, that is to say to the family, social and business connections which gave rise to the presence in Australia. The closer the analogy between the periods of presence in Australia and permanent residence therein, the more readily the discretion may be exercised.
Likewise, s.13(9) looks primarily not to hardship or disadvantage as set out in the Ministerial guidelines but to family connections. In the purview of this discretion, it is relevant that Mr Dainty is married to an Australian citizen who has lived in Australia all her life, that the matrimonial home has been in Australia for 5 years, that they have two children in Australia who are Australian citizens, that they intend to remain in Australia and that the centre of their family, social and business affairs is in Australia. Such matters are not mentioned by the guidelines but they are, in my opinion, relevant and weighty matters for the purpose of the s.13(9) discretion.
In the circumstances, I am of the view that the Ministerial guidelines are not appropriate to Mr Dainty's circumstances. Mr Dainty relies upon factors which are relevant and should be taken into account. A consideration of these ought not to be denied because they fall outside guidelines which have been prepared for the purpose of consideration of the ordinary and different type of case. I would not criticize the course taken in Re Peng Au-Yong and Minister for Immigration and Ethnic Affairs (decision No. 3028, 18 November 1986) and Re Peter Bettels and Minister for Immigration and Ethnic Affairs (decision No. 3062, 3 December 1986) in which cases the guidelines were applied in circumstances to which they were appropriate.
In the present case, it appears to me that the circumstances under consideration fall outside the provisions of the guidelines and ought to be considered on their own merits. I agree with the comment made in a memorandum to the Minister that Mr Dainty's case should not be regarded as a general precedent but may be looked upon as an individual case. In these circumstances, no reason remains why the general guidelines, which are not appropriate to it, should be applied to it.
I should add that a decision favourable to Mr Dainty would not, in my view, mean that his application would be advanced unfairly to others. I do not see this as a case of queue jumping by Mr Dainty. He has had lengthy and sufficient ties with Australia. No reason other than the guidelines has been put forward as to why he should not now be granted a certificate of citizenship. There is no reason for delay other than the application of the guidelines, which as I have said, I think ought not to be applied in his case. (emphasis added)

Deputy President McMahon expressed views as to the application of the Guidelines in a number of decisions. In Re Lo and Department of Immigration and Ethic Affairs (1993) 32 ALD 271 at paragraphs 24-27, Deputy President McMahon questioned whether the Guidelines extend beyond the decision-making power by adding requirements additional to those in the Act, such as that activities must be clearly beneficial and widely recognised as such. He decided, as the matter was not argued before him, to assume that the Guidelines were valid, and to apply them with care. I do not see any problem with the use of the highlighted words. I consider that the explanation of their use is that they are found in paragraph 4.5.14 and relate to the issue of whether or not the discretion will be exercised, "If the discretion is available."
In Re Abraham and Department of Immigration Multicultural Affairs (1997) 50 ALD 611 at paragraph 22, Deputy President McMahon referred to his earlier comments and noted that although new Guidelines had been issued, they repeated the terms he had earlier emphasised as possibly going beyond the statute. He added that the Act did not expressly require a "prior primary identification" with Australia before exercise of the discretion. He also criticised the fact that the Guidelines do not expressly have Ministerial authority.
Neither Mr Wood nor Mr Goetz addressed the Tribunal on the issue of how the Guidelines should be used. The whole document, or at least sufficient to understand the origin and status of the document and the persons to whom it is addressed, should have been put before the Tribunal. There should have been evidence as to the authority of the Guidelines.
The Guidelines should be given respect as expressions of government policy. In Drake v Minister for Immigration and Multicultural Affairs (1979) 2 ALD 60 at pp 69-70, Bowen CJ and Deane J held :
In a matter such as the present where it is permissible for the decision-maker to take relevant government policy into account in making his decision, but where the Tribunal is not under a statutory authority to regard itself as being bound by that policy, the Tribunal is entitled to treat such government policy as a relevant factor in the determination of an application for review of that decision. It would be contrary to common sense to preclude the Tribunal, in its review of a decision, from paying any regard to what was a relevant and proper factor in the making of the decision itself. If the original decision-maker has properly paid regard to some general government policy in reaching his decision, the existence of that policy will plainly be a relevant factor for the Tribunal to take into account in reviewing the decision. On the other hand, the Tribunal is not, in the absence of specific statutory provision, entitled to abdicate its function of determining whether the decision made was, on the material before the Tribunal, the correct or preferable one in favour of a function of merely determining whether the decision made conformed with whatever the relevant general government policy might be. It is not desirable to attempt to frame any general statement of the precise part which government policy should ordinarily play in the determinations of the Tribunal. That is a matter for the Tribunal itself to determine in the context of the particular case and in the light of the need for compromise, in the interests of good government, between, on the one hand, the desirability of consistency in the treatment of citizens under the law and, on the other hand, the ideal of justice in the individual case. It may be that the Tribunal concludes, on the material before it, that a particular government policy which had been applied by an administrative officer in making a decision which the Tribunal was reviewing was, in itself, unobjectionable and that the need for consistency in the particular area of administrative decision-making was such that, in the circumstances of the case, the correct or preferable decision was that which resulted from the application of that policy to the facts of the matter before it. An example of an area of decision-making where such an approach might, in the particular case, be appropriate is that involving the discretionary grant of statutory licences in circumstances where no statutory guidelines are laid down and the personal qualifications or characteristics of the prospective licensee are unimportant. Such a decision, even though it involves the application of government policy to the relevant facts, is the outcome of the independent assessment by the Tribunal of all the circumstances of the particular matter. It is to be contrasted with the uncritical application of government policy to the facts of the particular matter which represents an abdication by the Tribunal of its functions. In practice, the borderline between the two classes of decision may well be blurred and it is inevitable that there will be cases in which it is difficult to discern, from the published reasons of the Tribunal, on which side of the border the particular decision of the Tribunal lies. It is, however, desirable that, in any case where the Tribunal reaches the conclusion that the particular circumstances are such as to make the correct or preferable decision that which results from an application of some government or ministerial policy to the particular facts, the Tribunal makes it clear that it has considered the propriety of the particular policy and expressly indicates the considerations which have led it to that conclusion. This is particularly so in matters such as the review of a deportation order where no two cases will be identical and where personal liberty will commonly be involved.
Examination of the reasons for decision of the learned Deputy President in the present matter indicates that the decision which he reached was the result of the application by him of ministerial policy to his careful assessment of the factual material before him. We have experienced considerable difficulty in deciding whether that application of policy was the result of an independent assessment of its propriety and an independent determination that the circumstances of the case were such that the correct decision was that resulting from the application of that policy to the relevant facts. Smithers J has analysed the reasons for decision of the learned Deputy President. The matters to which he has pointed have ultimately led us, on balance, to conclude that the published reasons of the Tribunal indicate that the Tribunal failed to make such an independent assessment and independent determination and that, in the result, it failed properly to perform its function of reviewing the Minister's decision that a deportation order be made in respect of the plaintiff.
The Full Court has thus indicated that while the desirability of consistency in the making of decisions is important, it is even more important to ensure that justice is achieved in the individual case. Thus the Court emphasised that in any case where the Tribunal concludes that the particular circumstances are such as to make it appropriate to reach the decision which results from the application of the Guidelines or policy, the Tribunal should make it clear that it has considered the propriety of the particular policy, and should explain why it has reached a decision consistent with the policy.
In this matter the Guidelines cover a number of relevant issues. First, at paragraph 4.5.11 they set out the legislative requirements with a gloss favouring the Tribunal decision in Re McCarthy, rather than the three decisions I prefer, as set out in paragraph 24 of these reasons. I do not consider it appropriate to adopt the Re McCarthy approach, even though it is endorsed by the Guidelines.
At paragraph 4.5.12 the Guidelines adopt the words of Einfeld J in Roberts and add reference to the decision in Re Fraser and Minister for Immigration, Local Government and Ethnic Affairs (AAT Decision No S91/205, 15 October 1991). I see no problem with the application of those parts of the Guidelines except that Re Fraser was an oral decision and is not readily accessible. The third bullet point at paragraph 4.5.12 may be contentious in some fact situations, but it has no relevance to the matter currently before the Tribunal, so it is not appropriate to comment on it at this time. Similarly no difficulty arises on the facts in this matter with the words of paragraph 4.5.13 of the Guidelines.
Applying those Guidelines, which, so far as they are relevant to the facts of this matter simply explain Roberts, I find that the activities in which Pacific Fish was engaged from perhaps August 1997, but certainly from October 1999 to April 2000 could be activities beneficial to the interests of Australia, in that exports valued at large amounts and therefore providing commercial advantage were made between October 1999 and April 2000. Further the market was prepared for even larger exports in the following years. It was Dr Chiu's evidence that the process used did involve new techniques or technology to airfreight live seafood in tanks of water to Hong Kong. The evidence did not make it clear whether that was Australian technology.
I would have felt more confident in making a finding that the activities of Pacific Fish were beneficial to the interests of Australia if there had been evidence from the Australian Fish Industry or from Australian Fisheries Management Authority ("AFMA") or some similar body to confirm that the activities are beneficial to the interests of Australia. There could be issues as to depletion of resources which may mean that the large volume of sales is not altogether beneficial to the interests of Australia. There was no evidence on this matter, one way or the other. Nor was the point raised by Mr Wood.
I would also have found it easier to make a finding that the activities of Pacific Fish are beneficial to the interests of Australia if someone involved with the accounts side of the company had explained the accounts. It appears from the Profit and Loss Statement and Balance Sheet of Pacific Fish (Qld) (T docs pp 233-236) that the company as at 30 June 2000 had insufficient assets to meet its liabilities. The major liabilities seem to have been to other companies in the Pacific Fish Group but this was not explained. If the company had a net profit of only $77,984.37 from sales income of $3,417,111.62, the business may not be sufficiently profitable to survive. If that were so, the building up of the business may not be beneficial to the interests of Australia. However that point also was not considered by the decision-maker in the decision under review. Nor was it addressed during the hearing.
Another concern I have is that the business may not be opening up new markets. Dr Chiu says there is a major competitor with greater sales than Pacific Fish. He said that whether Pacific Fish or its competitor attracts buyers, he sees the building up of awareness of the Australian live fish industry as a benefit to Australia. There was no evidence other than his opinion on this issue.
The concerns I have set out as to the gaps in the evidence were not raised at the hearing. I raise them as matters which I would expect an applicant to address in making future applications of this nature. Similarly they are matters which the respondent or his delegate should consider in deciding whether or not to grant Australian citizenship under s 13(4)(b) of the Act. I am prepared to find on the unchallenged evidence before me, that the activities of Pacific Fish in the period at least from October 1999 to April 2000 were beneficial to the interests of Australia.
However there are significant problems raised by the evidence, in considering whether while Dr Chiu was not present in Australia he personally was engaged in activities beneficial to the interests of Australia. That is what is required to enliven the discretion in s 13(4)(b)(i)(C). On the view most favourable to Dr Chiu, those periods would cover the one year from 26 April 1999 to 26 April 2000 for paragraph 13(1)(d), and the two years from 26 April 1998 to 26 April 2000, less five days, for paragraph 13(1)(e). So far as the evidence reveals, according to T documents pp 237-244 and paragraph 12 of the applicant's Statement of Facts and Contentions, there were no sales, or no significant sales, prior to 2 October 1999. Thus most of the evidence Dr Chiu gave as to his activities on behalf of Pacific Fish is referable to the period after October 1999 only. Dr Chiu gave no evidence as to the nature and scope of his activities in Hong Kong on behalf of Pacific Fish before it started making deliveries to Hong Kong.
The evidence did not explain how the developmental stage of the business was carried out. Dr Chui was only one of many directors. There was no evidence as to what responsibilities he personally undertook in Hong Kong between April 1998 and October 1999, when deliveries to Hong Kong commenced. That is the sort of evidence which would have been required to allow me to reach the stage of finding that the discretion in s 13(4)(b) was available to Dr Chiu.
I find that until October 1999 Dr Chiu's main activity in Hong Kong was working in his specialist medical practice. He did not give any date as to when he reduced his hours to two per day. The fact that he was still earning AUD15,000.00 a month from his practice, working only two hours a day at the time of the hearing shows that the practice is still busy. It does not support a finding that the reduction of hours is anything but recent. There would have been no reason for Dr Chiu to reduce his medical practice so substantially before there were frequent deliveries to be picked up and checked at the airport and at restaurants.
I am not satisfied and do not find that for the two years, less five days, from 26 April 1998 to 26 April 2000, or even for the one year from 26 April 1999 to 26 April 2000, when he was not present in Australia Dr Chiu personally was engaged in activities beneficial to the interests of Australia.
This conclusion means that the discretion in s 13(4)(b) is not available to Dr Chiu. Nor is it available to Mrs Chiu who had less involvement in Pacific Fish. The decisions under review will be affirmed. However, as I have reached the conclusion that, even if I had found that the discretion in s 13(4) had been available, I would not have found it appropriate to exercise the discretion, I will proceed to explain why I have reached that conclusion.
The Guidelines, at paragraph 4.5.14, address the exercise of the discretion under s 13(4)(b) "If the discretion is available." The first suggested criteria is that the applicant was required to work overseas by an employer or if self-employed, frequent travel was essential to the successful operation of the business. I am prepared to assume that at certain times Dr Chiu's presence in Hong Kong has been important, even if not essential, to the successful operation of Pacific Fish. There is no evidence that it was so required for the whole of the prescribed one or two years.
The next criteria suggests that the beneficial nature of the activities should be clear and widely recognised. As Deputy President McMahon pointed out in Re Lo those requirements add to the requirements of the Act. However, as I explained in paragraph 39 of these reasons, it is clear from the fact that they appear in paragraph 4.5.14 which applies, "If the discretion is available", that the Guidelines indicate that a decision maker should consider the degree or extent of the beneficial nature of the activities, when deciding whether or not to exercise the discretion. If the activities are "clearly beneficial to the interests of Australia and are widely recognised as such", the discretion is more likely to be exercised than if the beneficial nature of the activities is slight and not widely recognised. I do not see any problem with a decision being made taking those issues into account, although clearly the examples given should not be treated as exhaustive.
In this matter there was, in any event, evidence which went some way towards satisfying the requirement of recognition. The Tribunal received evidence and copies of certificates and a newspaper article showing that Pacific Fish has been a finalist and has won an award for fostering trade between Hong Kong and Australia in the category of export services. There was no evidence as to the standing of the Hong Kong Australia Business Association, other than that the article referring to Pacific Fish having won the 2001 Victorian award for Export Services, stated as to the NSW awards (A2):
Judging of the Awards is entrusted to an independent panel chaired by Mr Henry Tsang OAM, MLC, Chairman of the NSW-East Asia Business Advisory Council. The panel include senior representatives of Austrade, the Hong Kong Trade Development Council and HSBC, the principal sponsor.
The aspect of the Guidelines which I consider shows that the discretion should not be exercised in Dr Chiu's favour is that referred to in paragraph 4.5.14(b), namely, identification with and commitment to Australia. The Guidelines at paragraph 4.5.14 and 4.5.15 advise how that requirement should be assessed. Before considering those particulars it is necessary, as explained in Re Drake, to explain why I consider that the concept outlined in paragraph 4.5.14(b) is a concept which it is appropriate to apply, even if not precisely as laid down in paragraphs 4.5.14(b) and 4.5.15.
It is clear that s 13(1)(d) and (e) of the Act look to residence in Australia as a permanent resident for a substantial period in the two and five years immediately preceding the date of the application for citizenship, as a qualification for citizenship. Section 13(4)(b) provides an ameliorative provision which the Minister may, in the Minister's discretion, exercise in the applicant's favour. It is not an automatic right.
It seems to me appropriate that the policy should require that the strength of an applicant's demonstrated personal and emotional commitment to Australia during the relevant period, be taken into account in deciding whether or not to exercise the s 13(4) discretion. The length and nature of an applicant's residence in Australia is one way of showing commitment to and identification with Australia. That was recognised by Davies J in Re Dainty when he said, in the passage emphasised at paragraph 34 of these reasons:
The closer the analogy between the periods of presence in Australia and permanent residence therein, the more readily the discretion may be exercised.
I have set out in paragraphs 10 and 11 of these reasons details showing the infrequent and short visits Dr and Mrs Chiu have made to Australia during the relevant one and two year periods. I have explained why I have not accepted that they ever "migrated" here. I also do not accept that they ever became "usually resident in Australia". The statement to that effect in the letter from their solicitor in support of their applications at T3 (p.35) was false, as was the address given for Dr Chiu as a director of Pacific Fish at T10 (p.221) and in evidence. There was no explanation as to whose address that really is. It may be an Australian mailing address but I find that it is not Dr and Mrs Chiu's residential address.
Dr Chiu said that if granted Australian citizenship he, Mrs Chiu and Michael would come to live in Australia. He explained that the position is now different from 1993 when he said he had migrated to Australia and then returned to Hong Kong after six weeks, when he could not find hospital employment as a doctor. As already set out earlier, the stay in Australia in 1993 was conceded to be one week not six weeks. He said the reasons things are different now are:
(i)His practice has dropped off dramatically so that if he can not sell it he will just close it.
(ii)The Pacific Fish business is improving so he can change his career from that of a specialist paediatrician to a businessman. In answer to a question from the Tribunal he said he would become a salaried director of Pacific Fish if he came to live here.
(iii)His son has completed his secondary schooling in Hong Kong and he would like to accompany him to Australia for his university education.
(iv)He is now 58 years old and is reaching retirement age. He is thus more prepared to reside in Australia. He pointed to the fact that he has joined two clubs, the South Sydney District Rugby League Football Club and the South Sydney Rugby League Club, to meet new friends and for health and exercise and to gain new interests.
(v)Pacific Fish has other directors resident in Hong Kong who could perform the activities he and his wife have been performing or, if this was not able to be arranged, an employee could be engaged. Dr Chiu expressed a preference for the work to be done by a director.
(vi)He said he was paying income tax in Australia as well as Hong Kong because he recognised his obligations to do so as a responsible permanent resident.

There was evidence which causes me to place little reliance on those matters. As to (i), Dr Chiu still has a medical practice in Hong Kong. The practice is clearly valuable. He may still be reluctant to sell or close it. As to (ii), he gave no evidence that the directors of Pacific Fish had agreed that he should become a paid director and the balance sheets do not establish that there would be money available for payment of a director's salary. As to (iii), Dr Chiu gave a great deal of evidence as to his commitment to his 17 year old son and his desire to oversee his education. In contrast he did not mention the existence of his 22 year old daughter, who resides in Hong Kong, until he referred to her by chance in response to an unrelated question from the Tribunal. As to (iv), there was no evidence that Dr Chiu has ever attended either of the clubs. The membership cards are in the T documents, but merely joining a club does not show that the club has become a part of one's social life. As to (vi), so far as I can see from the T documents, although Dr and Mrs Chiu have lodged Australian tax returns, they have always shown losses. Mr Goetz did not dispute that when I referred to it during the hearing. Thus Dr Chiu has not paid tax in Australia. His evidence that he does so because he sees that as an obligation to Australia, is again not reliable. Other inaccuracies in the material before the Tribunal were the omission from tax returns of the properties Dr and Mrs Chiu own in Hong Kong.
The Guidelines, as to assessing paragraph 4.5.14(b), state in paragraph 4.5.15 that primary identification with Australia should be evidenced by matters prior to the application for citizenship and that both emotional and physical ties are important, but more weight should be given to emotional ties because physical links can be more easily engineered to demonstrate commitment. The final statement in the Guidelines is:
Usually the strongest identifying factor to a place is having friends and relatives living there. Home is the critical point.
The matters specified in paragraph 4.5.15 are all relevant matters to consider in deciding whether or not to exercise a discretion, where the discretion is available.
Dr and Mrs Chiu do have substantial assets here, as set out in paragraph 16 of their Statement of Facts and Contentions. They own two units in Liverpool Street, Sydney and two in Lovell Road, Eastwood. In total the units are worth about $1.5 million. They also have bank deposits and Government bonds in Australia totalling over $1.5 million. As to family members in Australia, they have one relative, Mrs Chiu's brother who is a naturalised Australian and they said they have friends here.
On the other hand, in Hong Kong they also own two flats, one in their own names and one through a private family company. More importantly their daughter and Dr Chiu's sister and her five children live in Hong Kong. Another sister lives in Macau. Dr Chiu also has a number of relatives in mainland China and three brothers in Canada. Mrs Chiu has two brothers, two sisters and two nieces in Hong Kong and her mother lives in Hong Kong. She also has a brother who lives in the USA and now works in Singapore. Dr and Mrs Chiu also have friends in Hong Kong, although both said that many of their friends have moved to Australia.
Dr Chiu and Mrs Chiu said that their son Michael who was educated in the Hong Kong is now applying for University entrance in Australia, presumably for next year. No documentation was produced to prove that assertion, but I do not regard it as outweighing the fact that Michael and the daughter both had all their schooling in Hong Kong and the daughter will remain in Hong Kong in any event.
I find that Dr and Mrs Chiu have not established any prior primary identification with Australia. They have never lived in Australia, and have spent only a few days here. Dr Chiu has made 11 brief visits since being granted permanent residence on 27 December 1991, none of which have exceeded nine days. In the same time Mrs Chiu has made eight visits none of which have exceeded nine days. Although they own a property which they say they intend to one day use as their home, it is currently let on a monthly tenancy. They have never lived in it. There was no evidence as to where they stay when they are in Australia. They have considerable investments here but as they are not happy with the political situation in Hong Kong, that does not necessarily indicate an emotional bond. It is equally readily explained by the fact that they have looked to make investments in other countries because of their concern about Hong Kong's uncertain future.
The discretion under s 13(4)(b) only arises once s 13(4)(b)(i)(C) is satisfied. I have already found that s 13(4)(b)(i)(C) is not satisfied, but even if it were, the balance would not be in favour of the exercise of the discretion. The very short periods Dr and Mrs Chiu have spent in Australia at any time, and in particular during the relevant five and two year periods and the lack of any evidence of a primary or strong identification with Australia would not support the exercise of the discretion in their favour. As Michael's application was dependent on those of his parents, his application cannot succeed.
The decisions under review will be affirmed.
I certify that the 72 preceding paragraphs are a true copy of the reasons for the decision herein of Mrs Joan Dwyer, Senior Member
Signed:         .....................................................................................
  Associate
Date/s of Hearing  1 and 3 July 2002
Date of Decision  22 July 2002
Counsel for the Applicant        Mr Goetz
Solicitor for the Applicant         Jonathon Wong
Counsel for the Respondent    Nil
Solicitor for the Respondent    Mr Wood, Blake Dawson Waldron