Chung and Minister for Immigration and Multicultural Affairs

[2001] AATA 274

DECISION AND REASONS FOR DECISION [2001] AATA 274

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No Q2000/1151

GENERAL ADMINISTRATIVE  DIVISION       )       
           Re      HAN-HUI CHUNG  
  Applicant
           And    MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS          
  Respondent

DECISION

Tribunal       Hon. CR Wright QC, Deputy President  

Date5 April 2001

PlaceBrisbane

Decision The Tribunal affirms the decision under review.           

(Sgd)   Hon. CR Wright QC
  DEPUTY PRESIDENT
CATCHWORDS
IMMIGRATION – citizenship – whether time spent overseas should be counted as time resident in Australia – whether overseas business activities were "beneficial to the interests of Australia"

Australian Citizenship Act 1948 s 13
Minister for Immigration, Local Government and Ethnic Affairs v Roberts (1993) 29 ALD 656
Re McCarthy and Minister for Immigration, Local Government and Ethnic Affairs (1993) 30 ALD 447

REASONS FOR DECISION

5 April 2001   Hon. CR Wright QC, Deputy President              

1. The applicant applies for review of a decision of the respondent's delegate made on 16 November 2000 whereby the applicant was refused a grant of Australian citizenship. That decision was based upon Mr Chung's failure to satisfy the delegate that a discretion should be exercised in his favour under subsection 13(4)(b)(i) of the Australian Citizenship Act 1948 ("the Act").

2. It was clear from the evidence that the applicant did not meet the residency requirements of subsection 13(1)(e).

3. This matter was heard before me in Brisbane on 2 April 2001.  At the hearing the applicant was represented by Mr CH King and the respondent Minister was represented by Mr B Cramer, Solicitor of Messrs Blake Dawson Waldron.  The following documents were taken into evidence:

• Exhibit 1            "T" Documents

• Exhibit 1A          Financial Accounts for the year ended 30 June 2000 – Chung's

  Pty Ltd ATF Chung's Family Trust

• Exhibit 2A          Certificate of Australian Citizenship of Andy Chung

• Exhibit 3A          Certificate of Australian Citizenship of Kevin Chung

1. The applicant, Mr Chung, is a 54 year old male person, a Taiwanese citizen and an Australian resident.

2. Mr Chung was granted a permanent residence visa on 30 June 1998 and arrived in Australia on 6 July 1998.

3. On 1 April 1999, Mr Chung set up a family business Chung's Pty Ltd ("Chung's" which was registered and of which Mr Chung was appointed director).

4. In the period after his arrival in Australia, up to the time Mr Chung lodged his application for a grant of Australian citizenship to which this application relates, Mr Chung travelled back and forth between Australia and Taiwan on a number of occasions for the purpose of, among other things, exporting goods ("the goods") to individuals in Taiwan through his family company, Chung's.  Those goods were purchased from Chinatown Duty Free, Australia Asia Souvenir Pty Ltd and The Natural City.  The first sale is dated 5 July 1999.

5. On 11 July 2000 Mr Chung lodged an application for a grant of Australian citizenship with the respondent ("the application").

6. In support of the application, Mr Chung stated that his two sons were about to obtain Australian citizenship themselves and it was for that reason that he had decided to make Australia his home.  Mr Chung also cited his investments in a family home and car, in Northern Territory Government Treasury Bonds and a fixed term deposit with the Commonwealth Bank as further support of his intention to reside permanently in Australia.

7. The respondent's delegate accepted that Mr Chung met the residence requirements of subsection 13(1)(d) as a result of his being in Australia as a permanent resident for a period of not less than 1 year during the period of 2 years immediately prior to the date of the furnishing of the application.

8. However, on 16 November 2000, the respondent's delegate refused to exercise the respondent's discretion to grant Mr Chung Australian citizenship, in accordance with subsection 13(1) of the Act, on the basis that Mr Chung failed to satisfy the residence requirements set out under subsection 13(1)(e) as a result of his being in Australia as a permanent resident for a period of less than 2 years in the period of 5 years immediately prior to the date of the furnishing of the application. Furthermore, it was considered that the material provided by Mr Chung, in support of the application, was insufficient to warrant the exercise of the respondent's discretion under subsection 13(4)(b)(i) of the Act ("the decision").

9. The relevant provisions of Section 13 are as follows:

   "Section 13  Grant of Australian citizenship

   (1)Subject to this section, the Minister may, in the Minister's discretion, upon application in accordance with the approved form, grant a certificate of Australian citizenship to a person who satisfies the Minister that:

   (a)the person is a permanent resident;

   (b)the person has attained the age of 18 years;

   (c)the person understands the nature of the application;

   (d)the person has been present in Australia as a permanent resident for a period of, or for periods amounting in the aggregate to, not less than one year during the period of 2 years immediately preceding the date of the furnishing of the application;

   (e)the person has been present in Australia as a permanent resident for a period of, or for periods amounting in the aggregate to, not less than 2 years during the period of 5 years immediately preceding the date of the furnishing of the application;

   (f)the person is of good character;

   (g)the person possesses a basic knowledge of the English language;

   (h)the person has an adequate knowledge of the responsibilities and privileges of Australian citizenship; and

   (i)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.

   ……

   (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…."

1. It is clear that the applicant fails to meet the residence requirements set out in subsection 13(1)(e) of the Act. Mr Chung had been a permanent resident in Australia for a total of 368 days (ie less than 2 years) in the 5 year period immediately prior to the date of the furnishing of the application.

2. Accordingly, the respondent's delegate, not being satisfied of the requirements of subsection 13(1)(e) having been met, was entitled to refrain from exercising the discretion to grant Australian citizenship to the applicant.

3. However, the respondent has a discretion under subsection 13(4)(b)(i) to treat a period in which the applicant was a permanent resident and was not present in Australia, as a period in which the applicant was present in Australia, if the respondent considers that the applicant was, during such period, engaged in activities beneficial to the interests of Australia.

4. Therefore, the question to be determined by the Tribunal is whether Mr Chung's activities in travelling to and from Taiwan for the purpose of exporting goods to individuals in Taiwan through his family company, Chung's, is sufficient to qualify as an activity beneficial to the interests of Australia.

5. The phrase "beneficial to the interests of Australia" was considered by Einfeld J in Minister for Immigration, Local Government and Ethnic Affairs v Roberts (1993) 29 ALD 656, as:

   "….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…"

1. In addition, the activities of the applicant which are said to be beneficial to the interests of Australia must be so beneficial at the time they occur.  In Re McCarthy and Minister for Immigration, Local Government and Ethnic Affairs (1993) 30 ALD 447, Deputy President McMahon said:

   "…There are a number of reasons why it must be said that these facts cannot be regarded as evidence that the applicant was engaged in activities beneficial to the interests of Australia.  Firstly, the applicant says that Australia's offshore oil industry will benefit only upon his return.  The statute requires the activities to be beneficial at the time at which the applicant is engaged in them.  Secondly, it is claimed that his experience should assist in obtaining further consultancy work.  These claims, even if they could be supported, would not bring the applicant within the operation of the sub-paragraph.  The legislation requires an applicant to be engaged in activities beneficial to Australia.  In his case, his activities may provide a future benefit which is intangible…."

1. Mr Chung claims that by buying Australian goods and selling them overseas, he is promoting Australian goods and creating an awareness of such goods overseas.  He also claims to have created jobs for Australian people in that by increasing the demand for the goods he is selling, Australian companies will have to produce more product to meet the demand, thereby creating more jobs.

2. The respondent contends that the applicant's overseas business activities do not amount to the creation of a tangible benefit to Australia and are not beneficial to the interests of Australia as required by the legislation. 

3. Counsel for the respondent pointed out that there was no evidence of job creation in this country produced either directly or indirectly by the applicant's activities.  There was no evidence that the Australian goods sold overseas by the applicant were difficult to obtain from suppliers or that his activities had increased the demand for such goods overseas.

4. Indeed, his evidence clearly showed that competition between his company's goods and those supplied to the Asian market by other entrepreneurs was particularly fierce, leading to the company's acceptance of a very small profit margin to maintain its market share.  From receipts of about $50,000 the company has made a gross profit of only about $5,000.

5. The applicant has a substantial sum of money invested in Northern Territory securities which provide him with a moderate income to support himself and his family which is perhaps just as well because it seems clear that the company has not yet reached a position of making a net profit or declaring a dividend.

6. In my opinion, it is clear that the applicant's activities in conducting the family business overseas did not create or lead to the creation of some objective advantage to this country before, during or after the relevant residency period.  Undoubtedly, the applicant has shown some initiative in furthering the private financial interests of the company and it is possible that in the future it may expand and become highly profitable.  That, in my opinion, falls far short of conduct benefiting the interests of Australia.

7. To be engaged in activities which may be regarded as beneficial to the interests of Australia, it is necessary to show more than the pursuit of a private commercial enterprise overseas which may produce a small financial return to an Australian resident which may then in turn be the source of payment of money as income taxation to the Commonwealth Treasury.  In my opinion there is a clear element of public service required even though the benefit produced may not be measurable in economic or other quantitative terms.  Although there must be some recognisable public benefaction, it need not be to the whole of the Australian public in general.  The benefit claimed to exist here was tenuous, speculative and remote at best.

8. Having reached this conclusion, it is unnecessary for me to consider the remaining arguments addressed to me by Counsel for the respondent dealing with paragraph 4.5.14 of the policy document "Australian Citizenship Instructions".

9. The applicant's Advocate, Mr King, suggested that if the applicant's citizenship application is refused he may cease his residency in this country and return to Asia.  That, of course, is up to him but I would point out that if he continues to live here it is only a matter of time before he satisfies the residential requirements of Section 13.

10. For the above reasons, my decision is that the application for review is refused and the determination of the respondent's delegate is affirmed.

I certify that the 28 preceding paragraphs are a true copy of the reasons for the decision herein of Hon. CR Wright QC, Deputy President

Signed:         Emma Oettinger
  Associate

Date/s of Hearing  2.4.01
Date of Decision  5.4.01
Rep. for the Applicant              Mr CH King
Solicitor for the Respondent    Mr B Cramer, Messrs Blake Dawson Waldron