Cho and Minister for Immigration and Citizenship

[2007] AATA 1173

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2007] AATA 1173

ADMINISTRATIVE APPEALS TRIBUNAL        N2005/1285

GENERAL ADMINISTRATIVE DIVISION

Re:          CHO SHIH HSIUNG

Applicant

And:MINISTER FOR IMMIGRATION AND CITIZENSHIP

Respondent

DECISION

Tribunal:       Ms G Ettinger, Senior Member

Date:27 March 2007

Place:Sydney

Decision:      The Tribunal affirms the decision under review.

…..…..[sgd]………
  Ms G Ettinger
  Senior Member

CATCH WORDS

Citizenship – refusal to grant citizenship – Applicant does not meet residency requirements-  exercise of Ministerial discretion –Applicant’s business activities do not satisfy the test of beneficial to the interests of Australia – no significant hardship – decision under review affirmed.

Australian Citizenship Act 1948 ss 13(1)(d), 13(1)(e), 13(4)(b)(i) - 13(4)(b)(iv)

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

Re Ho and Minister for Immigration and Ethnic Affairs (1994) 34 ALD 664

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

Drake v Minister for Immigration and Ethnic Affairs full citation (1979) 2 ALD 60

REASONS FOR DECISION

27 March 2007Ms G Ettinger, Senior Member

BACKGROUND

1. Mr Cho Shih Hsiung who arrived in Australia on 29 September 1998 on an “AD 131” visa, which grants him permanent residence (granted 7 September 1998), is seeking to obtain Australian citizenship. He applied for citizenship on 9 June 2005, and was refused by the Department of Immigration and Multicultural and Indigenous Affairs in a decision dated 21 September 2005, in which the Delegate held that Mr Cho did not meet the residency requirements, and that his circumstances did not meet the criteria necessary for the Minister to exercise his discretion pursuant to sections 13(4)(b)(i) to 13(4)(b)(v) of the Australian Citizenship Act 1948 (the Act).  On 6 October 2005, Mr Cho applied to this Tribunal for review of that decision.

2.      In a letter of 17 July 2006, Mr Cho’s representative, Mr S Lee, wrote to the Tribunal saying that Mr Cho would not be available in person for the hearing listed for 20 July 2006 due to business commitments overseas, but that he would attend by telephone from Taiwan. The matter came before me on 20 July 2006, and notwithstanding Mr Cho having stated that he did not require an interpreter, it was clear he would not be able to participate adequately without one. Accordingly, I adjourned the hearing. It was resumed on 28 September 2006.  On that occasion we were assisted by Mr Fu Siu-Wan, interpreter in the Mandarin language. However, despite many efforts, Mr Cho could not be contacted on the telephone number which he had given the Tribunal. He wrote to the Tribunal on 22 January 2007, informing us that due to the grave illness his sister suffers, he has been preoccupied, and accordingly made an error in calculating the time difference between Taiwan and Australia on the day of the hearing. Subsequently both parties agreed, and I accepted the matter could be determined on the papers. Neither party wished to make further submissions.

3. I am mindful it is undisputed that Mr Cho does not meet the residency requirements pursuant to sections 13(1)(d) and (e) of the Act. I am not satisfied that I should exercise the discretion pursuant to sections 13(4)(b)(i) to 13(4)(b)(v) of the Act to grant Mr Cho Australian citizenship. My reasons follow.

ISSUES FOR DETERMINATION 

4. Mr Cho wants to obtain Australian citizenship. Given that it is agreed he does not meet the residency requirements pursuant to sections 13(1)(d) and (e) of the Act, the issues for determination are whether:

·     during his absences from Australia in the years immediately preceding his application for Australian citizenship, the Applicant had been engaged in activities beneficial to the interests of Australia (section 13(4)(b)(i) of the Act) ; and

·     whether the applicant would suffer significant hardship or disadvantage if refused citizenship (section 34(b)(iv) of the Act).

LEGISLATIVE CONTEXT

5. At the time of his application for citizenship, Mr Cho had spent 34 days in the two years prior to his application, in Australia as a permanent resident, and 183 days in the five years prior to the application. Hence he failed to comply with sections 13(1)(d) and (e) of the Act. Exhibit R2 which is a document detailing movement details provided by the Respondent, also indicates that Mr Cho last travelled to Australia in October 2005.

6. It was undisputed that the applicant failed to satisfy section 13(1)(d) and (e) of the Australian Citizenship Act 1948 (the Act), which state:

(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:

(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 the aggregate to, not less than 2 years during the period of 5 years immediately preceding the date of the furnishing of the application.

7.      Further, the Minister shall not grant a certificate of Australian citizenship to a person under subsection 13(4)(b)(i)(C) at a time when the person is not in Australia unless the person is a permanent resident and the Minister considers that the person is engaged in activities outside Australia that are beneficial to the interests of Australia.

8. There is a discretion to consider Mr Cho’s application for citizenship, and that may be considered pursuant to sections 13(4)(b)(i) to (iv) of the Act which provide:

For the purposes of the application of subsection (1) in relation to an application for the grant of a certificate of Australian citizenship:

…

(b)       …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;

(ii)  treat a period ending before the period of 5 years referred to in paragraph (1)(e), being a period during which the applicant was present in Australia as a permanent resident, as a period within that period of 5 years;

…

(iv)if the Minister considers that the applicant would suffer significant hardship or disadvantage if a certificate of Australian citizenship were not granted to the applicant – treat a period during which the applicant was present in Australia…as a period during which the applicant was present in Australia as a permanent resident.

…”

9. In considering the discretion to grant Mr Cho’s application for citizenship pursuant to sections 13(4)(b)(i) to (iv) of the Act, the Australian Citizenship Instructions (“the Instructions”), whilst not binding, provide guidance. Pursuant to the principles enunciated in Drake v Minister for Immigration and Ethnic Affairs (1979) 2ALD 60 the Tribunal would, in the absence of any contrary compelling reasons, ordinarily apply the policy formulated by the Minister.

10.     The relevant clauses of the Instructions follow;

(d) Discretions applying to the residence requirements (s 13(40(b))

4.3.17Section 13(4)(b) provides for discretion to waive part or all of the residence requirements in certain circumstances, outlined below. 

…

Residence discretion: Residence outside Australia (s 13(4((b)(i))

4.3.19Periods during which the applicant was a permanent resident and was outside Australia engaged in activities beneficial to the interests of Australia may be counted towards the residence requirements.  This discretion applies to both residence requirements (ie. both “2 years in the last 5” and “1 year in the last 2”)

4.3.20 The legislation is interpreted as requiring the following:

·     the applicant must have been a permanent resident (see 1.4) during any of the periods counted;

·     the periods spent outside Australia to be counted must be:

-within the last 5 years for the 2 years in the last 5 years requirement; and

-within the last 2 years for the 1 year in the last 2 years requirement; 

·     the applicant must have been personally engaged in activities overseas beneficial to the interests of Australia, not just, for example, the company or organisation for which the applicant worked;

·     the applicant must have been engaged in a series of activities, not just a one-off transaction;

·     the activities must also be during the relevant period/s under consideration;

·     the activities must have been ‘beneficial to the interests of Australia’ during the relevant period/s.  It is not intended that the provision apply where there are no current benefits irrespective of whether benefits may accrue in the future.

4.3.21Under ministerial policy, the discretion will usually only be exercised if the applicant is in Australia and was either:

·     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, whether for an extended period or on a regular short-term basis; or

·     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 the applicant’s field of endeavour (for example, persons engaged in aid programs, artists and entertainers of world standing).

4.3.22  If the applicant is overseas, the discretion will normally not be exercised.

…

Activities beneficial to the interests of Australia

4.3.26In assessing whether activities are beneficial to the interests in Australia, consider the following:

·     It requires “something in the nature of activities providing 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 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)

·     “There should be a close nexus between 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).

11.     There is also well established case law relevant to the exercise of the discretion.

12.     The test of whether activities are beneficial to Australia is an objective one  (Re Ho and Minister for Immigration and Ethnic Affairs(1994) 34 ALD 664). In Re Ho, at paragraph 25, Deputy President McMahon emphasised that the activities to which section 13(4)(b) refers must be of a public character; and at paragraph 27, that the circumstances in which the discretion may be exercised must be exceptional.  Deputy President McMahon stated:

“It cannot be said that commercial activities designed to promote the sales of one or two companies are activities of a kind intended to be covered by the ameliorative provisions of s13(4)(b). Something more is necessary, and that something must be of a public character

…

The discretion contained in s 13(4) is not intended to offer an alternative method of complying with s 13(1)(d) and (e).  It is intended to allow some flexibility, in exceptional circumstances, when specific activities, which are the applicant’s substantial activities during specific periods, can be demonstrated.  The presence of the applicant in Australia for specific periods is one of the prerequisites to a grant of citizenship.  It is not an optional requirement interchangeable with certain activities outside Australia.”

13.     There are other cases which have provided guidance in the exercise of the discretion in section 13(4)(b) of the Act, such as, Minister for Immigration, Local Government and Ethnic Affairs v Roberts (1993) 29 ALD 656 at 660, where Einfeld J said:

“It seems to me that the term “activities beneficial to the interests of Australia” means something in the nature of activities which provides 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.”

14.     In Re McCarthy and Minister for Immigration, Local Government and Ethnic Affairs (1993) 30 ALD 447 at 448, Deputy President McMahon said the applicant’s activities must provide a tangible benefit to Australia. DP McMahon found that the benefit should be largely as a result of the applicant’s activities, and must not be residual, remote, indirect or speculative. In that case, the claim that the applicant’s employment by a subsidiary of an Australian company, in another country, was of direct benefit to that company and Australia, fell short of demonstrating the applicant’s activities were beneficial to the interests of Australia.

THE APPLICANT’S CASE

15. I had before me documents lodged pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 (“the T-documents”), which included documents relating to Mr Cho and his family, including his application for citizenship, the decision of the Respondent, personal financial documents relating to Mr Cho and his family, and financial statements regarding the business he has been conducting.

16.     I noted that in his initial application for citizenship dated 9 June 2005, Mr Lee wrote on behalf of Mr Cho that he is married to Mrs Jui-Li Hsieh, and that both his wife and two children, after satisfying residency requirements, became Australian citizens on 24 February 2003. Mr Lee argued on behalf of Mr Cho, that he would suffer significant hardship or disadvantage if he were not granted citizenship.  At T5 (dated 9 June 2005), Mr Lee wrote on behalf of Mr Cho that in the six years since settling in Australia, “Mr Cho has been required to travel extensively for his Australian business. According to Ms Hsieh, that makes her very depressed and worried because she believes that her spouse would not have a similar level of protection as an Australian citizen ‘if something happens’ to Mr Cho whilst he is overseas. This feeling is especially strong when the relation between China and Taiwan was really bad over the last few years….”

17.     Mr Lee wrote that the Applicant’s absences from Australia since gaining permanent residence in 1998 relate primarily to his business interests. Mr Lee argued that Mr Cho’s activities while overseas were beneficial to the interests of Australia in the terms required by the Citizenship Instructions.

18.     I noted that Mr Cho registered an Australian company, Simon & Family Pty Ltd on 6 December 2001. Since 26 November 2002 the company has been known as S&C (Australia) Pty Ltd.

19.     Mr Lee wrote in his submissions of 9 March 2006, (Exhibit A1) that during the two year period preceding the lodgement of Mr Cho’s application for citizenship, being 1 June 2003 to 31 March 2005, Mr Cho’s Australian company exported waste paper to the value of $3,770,835. He had attached material from the Department of the Environment and Heritage printed off the internet which deals with environmental protection in Australia, one document being a professional development manual for teachers. There was no information regarding any of Mr Cho’s business activities for the years 2000 to mid 2003 which are relevant to the five year period contemplated in the legislation.

20.     In a further document Exhibit A2, dated 10 April 2006, Mr Lee attached material relating to recycling and the environmental impact of pulp and paper mill effluents and emissions. He submitted that Mr Cho’s involvement in recycling, while overseas, were beneficial to the interests of Australia.

21.     On 17 July 2006, (Exhibit A3), Mr Lee wrote in response to the Respondent’s Statement of Facts and Contentions.  He explained that certain transactions Mr Cho made were with third countries involved, but that that was in the establishment period, and that the relevant period for purposes of the application commenced on 1 June 2003.  He stated: “Business activities should not be measured by transactions because transaction are only the result of business activities.”  Mr Lee referred to the financial accounts of Mr Cho’s business activities, (Financial Report for the year ended 30 June 2005), which are before the Tribunal as part of Exhibit A3.  The Company Tax Return for 2005 which was also attached indicated that the main business activity was “paper or paperboard containers wholesaling (sic)” and indicated that the net taxable income was $25,720.  

22.     Mr Cho wrote in his letter of 22 January 2007 that “over the years from 1/7/02 to 30/6/05 my company in Australia has successfully exported over $4.3 million worth of waste paper to China. This is good to Australia because it helps environment protection, improves Australian business links with international markets, and enhances the competitiveness of the recycling industry. These are for the public interests of Australia and exceed the personal interests of myself or my company because the waste paper export business has a very low margin and I could not make much profit from it.”

RESPONDENT’S SUBMISSIONS

23.     The Respondent’s submissions were made in his Statement of Facts and Contentions. A summary follows.

24.     The Respondent noted that a number of Mr Cho’s company’s export transactions (T118-119), indicate that a substantial number of the transactions concern waste which has no connection with Australia, and was sourced from the USA and New Zealand, destined for China.  The Respondent argued that accordingly, the cost savings argument referred to in the Applicant’s submissions of 9 March 2006 was fundamentally flawed, as neither the purchase nor sale of that waste could be of benefit to Australia.

25.     The Respondent also submitted that he could not see how the export of Australian waste avoids “traffic congestion” and “saves” the Australian community from “hidden transport” and “road maintenance costs”, because the export of waste would involve transport to ports.

26.     The Respondent noted in his submissions that from the documentation, the first export of Australian waste occurred on 4 July 2003 (T118,T155), and that the last transaction recorded was on 24 March 2005.  The Respondent submitted that this indicated Mr Cho’s Australian company was involved in the export of Australian waste for only one year and eight months prior to the lodgement of his citizenship application. This meant, the Respondent submitted, that the period fell short of the “two in five years” requirement, so that even if the Tribunal held that the exports were beneficial to the interests of Australia, the time period was insufficient.

27.     The Respondent also made submissions about the Applicant’s assertion that the waste paper exported by him assisted with environment protection because that product would otherwise have gone into landfill. The Respondent disagreed with that proposition because of what he submitted were the benefits of the recycling industry in Australia. He cited various phrases from the Applicant’s submissions in support of his argument, arguing that the recycling of Australian waste paper supports local industry, and generates employment opportunities for Australian residents and citizens. The Respondent also indicated that in any case, the amount of activity in the Applicant’s company in the relevant period was so insignificant that it did not satisfy the “objective public benefit” test as contemplated by the Federal Court in Roberts (supra).

28.     The Respondent also submitted that there was nothing “exceptional” about the Applicant’s overseas activities in his capacity as a director of his Australian company. Further if commercial benefit were considered, it was obvious the amounts were very small, net operating profits of the Australian company for 2004 being $3,771 (T119). He noted that the company paid no salary or wages to anyone, including Mr Cho.

29.     In conclusion he submitted that Mr Cho’s time overseas is spent on activities or endeavours unconnected with any benefit to Australia.

THE TRIBUNAL

30.     I have noted the registration of Mr Cho’s Australian company took place in 2001.  At Exhibit A3, Mr Lee submitted that accordingly Mr Cho’s business activities commenced in December 2001.  I do not have evidence that business activities commenced in 2001 and cannot be satisfied that they did, because there was no trading until the first six shipments of waste paper commenced in April 2003.  The registration of a company does not necessarily equate with the commencement of business activities, and that was the situation in Mr Cho’s case. 

31.     I note further that the early shipments shown as part of the argument that Mr Cho’s activities were beneficial to the interests of Australia, were not connected with Australia at all, in that they were exports of waste organised by Mr Cho from the USA and New Zealand to China. I have noted what I understand to be Mr Lee’s argument that the early exports from the USA and New Zealand were to establish Mr Cho’s market presence, but I am satisfied that it would not be possible to class that activity as beneficial to the interests of Australia.

32.     I have noted that even when exports of waste paper were made from Australia, the extent of Mr Cho’s business activities as seen in the documents before me was very limited, particularly before the application for citizenship. Mr Cho stated that the returns were small. Further he has no staff and no payments of wages. I have also noted Mr Lee’s argument that I should not put too much weight on the relatively small quantities involved, and that I should note from the financial accounts for the year ended June 2005, that Mr Cho’s business is on-going.

33.     I have accepted the argument for the Respondent that Mr Cho’s Australian company was involved in the export of Australian waste for only one year and eight months prior to the lodgement of his citizenship application, (July 2003 to March 2005). I have no information regarding trading in the period 2000 to mid 2003, so that the period accordingly fell short of the “two in five years” requirement.

34.     As to the consideration of whether Mr Cho’s activities are beneficial to the interests of Australia, Mr Lee attached various public documents (Exhibits A1 & A2), available on the internet, to his submissions. They included material from the Department of the Environment and Heritage which deals with environmental protection in Australia, one document being a professional development manual for teachers, and material relating to recycling and the environmental impact of pulp and paper mill effluents and emissions. I am mindful of the Applicant’s arguments regarding products exported not ending up in landfill, but am not satisfied that I have any information regarding whether the small amount of waste paper which Mr Cho exported from Australia would have ended up in landfill or would have been recycled, or indeed which may have been more desirable in the circumstances.  I am mindful of what Einfeld J stated in Roberts (supra) regarding the objective public benefit and find that the small amounts of waste paper exported would not represent any objective public benefit even if it had been demonstrated that export was preferable to local recycling.

35. I do not have information before me regarding Mr Cho’s activities overseas other than those in the waste paper industry which he has supplied (see the T-documents), and Mr Lee’s submissions. In order to satisfy me that those activities serve some public interest of Australia, as opposed to the Applicant’s private interests, and even if the period of time required (Instructions 4.3.20), had been satisfied, there is nothing exceptional in any of Mr Cho’s activities which would persuade me to exercise the discretion in his favour (Ho (supra) and (Roberts (supra)).

36. I am satisfied that the Applicant has failed to establish grounds for the exercise of the Ministerial discretion pursuant to s 13(4)(b)(i) of the Act. I accept the Respondent’s contention that the applicant’s activities overseas cannot be classified as “beneficial to the interests of Australia” as that term is used in the legislation.

37.     However, before drawing a final conclusion, I am also required to consider the claim of hardship under section 13(4)(b)(iv) of the Act. If hardship can be established, there is a discretion which enables periods of temporary residence in Australia to be counted as periods of permanent residence.

38.     In relation to hardship or disadvantage, the Instructions state:

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

·     the applicant can demonstrate that they have been refused employment solely on the grounds that the employment is restricted to Australian citizens and that alternative sources of employment are not reasonably available to them

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

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

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

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

39.     In that regard, I had before me what Mr Cho said in his application for citizenship (T5/67). I noted his submission that his wife has anxieties about his safety while travelling because he is not an Australian citizen, and would accordingly not be afforded the protections of an Australian citizen, and that it would be more convenient for him if he were an Australian citizen.

40.     I have considered those submissions and also considered the legislation and Instructions at 4.3.33, which I have reproduced above. I am satisfied from the evidence before me that Mr Cho’s situation does not fall within the circumstances anticipated in the Instructions as hardship or disadvantage.

41.     Mr Cho has permanent residence, and an Australian family, and I am satisfied that he can carry on his business or the Australian aspect of his life in the same way as he has to the present. There was no indication from what I had before me that he intends to move himself or any other part of his business to Australia.

42.     I am not satisfied that a refusal of Australian citizenship in the circumstances would impose “significant hardship or disadvantage” to Mr Cho in terms of the legislation.

43.     I note further from the information before me that Mr Cho has not returned since he last departed Australia in October 2005. He has not indicated he wishes to return to live or work here, although I am mindful of his stated commitment to assist his sister who is ill in Taiwan. 

44.     I am mindful that a certificate of citizenship may not be granted if the Applicant is not present in Australia unless I am satisfied that Mr Cho is engaged in activities outside Australia which are beneficial to the interests of Australia. As I do not have such information, I am further precluded from exercising the discretion in his favour.

45. I am not satisfied from the evidence before me that the discretion pursuant to section 13(4)(b)(i) to (iv) of the Act should be exercised in Mr Cho’s favour.

46.     Of course if Mr Cho’s situation or intentions change in future years, he may be able to reapply.

DECISION

47.     The Tribunal affirms the decision under review.

I certify that the 47 preceding paragraphs are a true copy of the reasons for the decision of Ms G Ettinger, Senior Member

signed:              [sgd]

Associate

Date of hearing:  Decision made on the papers

Date of decision:  27 March 2007
Advocate for the Applicant:      Mr S Lee, S & L Consulting Pty Ltd
Solicitor for the Respondent:   Phillips Fox