Fan and Minister for Immigration and Multicultural Affairs and in Digenous Affairs
[2003] AATA 625
•1 July 2003
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2003] AATA 625
ADMINISTRATIVE APPEALS TRIBUNAL )
) No V2002/1005
GENERAL ADMINISTRATIVE DIVISION ) Re DONG FAN Applicant
And
MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
Respondent
DECISION
Tribunal Mr John Handley, Senior Member
Mr W G McLean, Member
Date1 July 2003
PlaceMelbourne
Decision The decision under review is affirmed. ...............................................
Senior Member
Citizenships: periods of residency not satisfied; whether discretion under s13(4) can be exercised; Ministerial policy; whether attributes of applicant beneficial to the interests of Australia.
Australian Citizenship Act 1948 s 13(1) (d) (e); (4) (b) (i)
Re Ho and Minister for Immigration and Ethnic Affairs (1994) 34 ALD 664
Re Lam and Department of Immigration and Ethnic Affairs (1996) 39 ALD 469
Re Tinamisan and Minister for Immigration and Multicultural Affairs (1996) 43 ALD 349
Minister for Immigration Local Government and Ethnic Affairs v Roberts (1993) 29 ALD 656
REASONS FOR DECISION
1 July 2003 Mr J Handley, Senior Member Mr W G McLean, Member 1. Ms Fan applies to review a decision of Mr J Hopkins, a delegate of the respondent, made on 10 September 2002 to refuse to grant her Australian Citizenship.
2. The hearing was convened on 26 May. Ms Yang appeared on behalf of Ms Fan. Ms Arduca appeared on behalf of the respondent. Documents lodged by the respondent pursuant s37 of the Administrative Appeals Tribunal Act 1975 were received into evidence. We were also assisted by comprehensive statements of facts and contentions lodged by both parties. Ms Fan only gave evidence.
3. In its primary decision, the respondent decided to refuse citizenship by reference to s13(1)(d) and (e) and s13(4)(b)(i) of the Australian Citizenship Act 1948 (“the Act”). Those sub-section are relevantly reproduced as follows;
Section 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:
(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
(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.
4. The applicant arrived in Australia on 3 April 1999 from the Peoples’ Republic of China and was granted permanent residence status on 20 April 1999. She departed from Australia on 20 April 1999. Ms Fan returned to Australia in May 2001 and departed Australia on 6 October 2001. At that stage she had been a resident of Australia for 17 and 159 days respectively. The applicant returned to Australia 16 June 2002. She purchased a home in Cheltenham in suburban Melbourne and has been residing in that home subsequently. The application for citizenship was made on 1 July 2002. With regard to the above periods of residence in Australia, the applicant cannot satisfy s13(1)(d) or (e). This is conceded by the applicant. Accordingly, Ms Fan needs to satisfy the discretionary provisions available under s13(4)(b)(i).
5. The Minister has published a policy with respect to an application for qualification under s13(4)(b)(i) in the following terms;
4.3.17Periods 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”).
4.3.18The 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.
4.3.19Under 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 aboard 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, people engaged in aid programs, artists and entertainers of world standing).
4.3.20If the applicant is overseas, the discretion will normally not be exercised.
6. In her application for citizenship (T5 page 28) Ms Fan submitted that she was employed by an Australian corporation – David Glory Group Pty Ltd (“David Glory”) – in it’s China office. She submitted that she was employed as the “Marketing Manager in charge of marketing Australian tourist attractions and organising tourist in-bound groups to Australia as well as marketing Australian schools and universities for overseas students recruitment which are both for education export and tourism export for Australia”.. Ms Fan explained that she returned to Australia in May 2001 where her second child was born in July. She later returned to China to continue employment. Additionally she submitted “due to the reason I need to stay for more than two years in Australia I am back to Adelaide. But I believe that I can contribute more to Australia in China than staying in Australia therefore I am applying for being granted Australian Citizenship with exceptions to resident’s requirements”.
7. Ms Fan submitted that her connection with Australia was established as follows;
(a)her self funded retired parents in law resided in Australia; her second child was born in Australia; she and her husband frequently returned to Australia to visit his husband’s parents and it was intended that they would reside in Australia when the second child commences school.
(b)Savings and investments in Australia comprise of $1 million Australian dollars held in Australian banks, real estate of $500, 000, being a residential property in which her husband’s parents live and an investment property in Central Adelaide valued at $300,000; $6,200 of Telstra shares and managed funds of $100,000.
(c)Commercial and business interests in Australia and China being a Director of Auyong Investment Pty Ltd being a family trust company which imports to and exports from Australia and being an employee of David Glory.
8. In her application Ms Fan recorded the following with respect to her employment with David Glory:
During my employment for the above Australian company, China office, I have used my contacts in China with Governments, enterprises and schools and have organised different groups, including tourist groups, government groups, school groups to tour around Australia and created tourism export for Australia. My other duties are to introduce the Australian language centres, schools and universities such as Melbourne College of English, Eltham College, South Australian universities and have recruited more than 50 students so far, this has created education export for Australia.
9. In evidence Ms Fan said that when she was residing in China she was required to attract students and other tourist groups to come to Australia. She said that she contributed to the Australian economy and without her “contribution the Australian company cannot achieve groups to come to Australia”. Ms Fan said that she was an important member in China of Glory Group because she held close connections with Government officials and other relevant persons whom she would consult when arranging tours to Australia.
10. In cross-examination Ms Fan said that she was personally involved in recruiting persons to travel to Australia. She said that in the three years of her employment with the David Glory she recruited approximately 50 students. She said that she achieved this by placing newspaper advertisements and later meeting with the students and their parents and persuading them that Australia held better education opportunities than the United States or England.
11. Ms Fan was then taken to a number of photographs which she attached to her Statement of Facts and Contentions. The photographs were taken in Australia and depict persons whom have travelled to Australia as organised by Ms Fan. Some Australian politicians appear in the photographs. Some photographs depict a Provincial Mayor in the AusTrade office in Melbourne and at the Melbourne Language Centre each in the presence of the former Victorian Minister for Education. Other photographs were taken at the Carey Grammar School, at the Tourism Victoria Office and at a dinner in Hobart attended by the Vice Governor of the Liaoning Province.
12. The latter photograph was taken in the presence of the Australian Prime Minister. Ms Fan said that her involvement in the delegations which gave rise to the events depicted in the photographs were as the organiser of the tour groups that travelled to Australia. She said that she did not know what work or discussions were taken in Australia and had no involvement in the travel or movement of the delegates when in Australia.
13. In China she said that her work comprised of identifying events or projects in Australia which might benefit Chinese persons and then by use of her “contacts” in China she would arrange tours. She may prepare a tour documents and other brochures by way of promotion but essentially all contact with tour delegates and arrangements for them was undertaken by members of the David Glory staff in Australia.
14. By way of example, the tour to Tasmania (refer above) arose from the proposed construction in China of a tunnel, which was regarded as a major project. Ms Fan became aware of tenders which were offered in China and she sourced companies in Australia which may wish to tender. When she learnt of these corporations she then arranged a delegation of persons from the Province of Liaoning (where the tunnel was intended to be built) to travel to Australia to meet with persons who may wish to tender. Ms Fan said that the tours which she would organise were beneficial to Australia because of the opportunity being given to Australian companies to successfully tender for overseas projects.
15. Additionally, Ms Fan submitted in her Statement of Facts and Contentions that her family trust imported produce to Australia from China and exported produce from Australia to China. She said that these activities also contributed beneficially to the Australian economy. The produce imported to Australia from China was scallops and peanuts in May 1999. The produce exported was 24075 kilos of lamb in August 1998 (page 54).
16. Ms Fan said that she was aware that China had been “opened up” in recent years to “outsiders” which had the effect of “improving Chinese people”. Additionally, Chinese persons became curious of produce from other countries and because “Australian lamb is famous”, she introduced lamb to the Chinese diet. She found a Chinese buyer and made arrangements to have the above shipment exported from Australia.
17. In answer to some questions from us, Ms Fan acknowledged that she was principally involved with David Glory in China as a travel consultant. We noted a brochure attached to her Statement of Facts and Contentions which refers to the “David Glory Tour Centre”. Ms Fan agreed that David Glory would earn an income from tours to Australia by commissions from hotels and airlines.
18. When asked when she intended to continue to reside in Australia if citizenship was granted or whether she intended to return to China, Ms Fan said that it would “depend on whether they (David Glory) would need me”. She said that she would be prepared to return to China “for a short time” but did intend to return to Australia so that her children may receive an education here. She said that she was seeking a grant of citizenship to permit her children to be educated in Australia and because her permanent resident visa expires in February 2004. She said that she was at risk beyond that date – in the absence of citizenship – from not being permitted to return to Australia should she travel overseas. (However, it was learnt at the hearing that accrual of the periods of residency by Ms Fan in Australia will permit her to qualify for citizenship in December 2003).
Submissions
19. Both parties relied on their Statement of Facts and Contentions. Ms Arduca on behalf of the respondent also submitted that on the evidence heard, little weight should be given to the applicant’s evidence. It was submitted that if the tours and projects spoken by Ms Fan were beneficial to Australia supporting documentation should have been provided. Ms Arduca submitted that if citizenship was to be granted, the activities of Ms Fan should be seen as being beneficial to the Australian economy and to the Australian public as opposed to the benefit of a private corporation. It was submitted that the work undertaken by Ms Fan was capable of being undertaken by a part time person in China and none of the activity could be understood as providing any tangible or quantifiable benefit to Australia. Indeed it was submitted that Ms Fan being a permanent resident of Australia since October 2002, could not be seen as contributing to David Glory because her employment was not being undertaken in China. Indeed she had not worked with David Glory since June 2002.
Conclusion and Reasons for Decision
20. Section 13(4)(d) of the Act permits the Minister to exercise a discretion to deem certain periods of time where an applicant is not present in Australia as being a period within which the applicant was present, as a permanent resident, if that person was engaged “in activities that the Minister considers beneficial to the interests of Australia”.
21. A policy has been formulated and published intending to assist the manner in which the discretion shall be exercised (refer earlier).
22. In Re Drake and Minister for Immigration and Ethnic Affairs (2) (1979) 2 ALD 634 Brennan J at page 642 decided that the Tribunal “is as free as the Minister to apply or not to apply that policy. the Tribunal duty is the make the correct or preferable decision in each case on the material before it and the Tribunal is at liberty to adopt whatever policy it chooses or no policy at all in fulfilling its statutory function”.
23. However His Honour later recorded (page 643)
“If the Tribunal applies Ministerial policy it is because of the assistance with which the policy can furnish in arriving at the preferable decision in the circumstances of the case as they appear to the Tribunal. One of the factors to be considered in arriving to the preferable decision in a particular case is its consistency with other decisions in comparable cases and one of the most useful aids in achieving consistency is a guiding policy. An appropriate guiding policy should thus be applied….”
24. At page 645 His Honour decided;
“When the Minister is reviewing the exercise of a discretionary power reposed in a Minister and the Minister has adopted a general policy to guide him in the exercise of the power the Tribunal will ordinarily apply that policy in reviewing the decision unless the policy is unlawful or unless its application tends to produce an unjust decision in the circumstances of the particular case. Where the policy would ordinarily be applied an argument against the policy itself or against its application in the particular case will be considered the cogent reasons will have to be shown against his application especially if the policy is shown to have been exposed to Parliamentary scrutiny”.
25. In our view the policy is sound, is consistent with the discretion to be exercised and we see no reason to depart from it.
26. Whether an applicant for citizenship has been engaged in activities beneficial in the interests of Australia is to be assessed objectively (refer Ho and Minister for Immigration and Ethnic Affairs (1994) 34 ALD 664; Re Lam and Department of Immigration and Ethnic Affairs (1996) 39 ALD 469; Re Tinamisan and Minister for Immigration and Multicultural Affairs (1996) 43 ALD 349).
27. In Minister for Immigration Local Government and Ethnic Affairs v Roberts (1993) 29 ALD 656 Einfeld J said that the expression “activities beneficial to the interests to Australia” amount to activities providing commercial or other advantage to Australia. His Honour decided that the concept was in the nature of the public interest of Australia and more so than the private interests of an applicant.
28. The applicant submitted that her connection to Australia was partly evidenced by her real estate investments in Australia and monies invested. These features are obviously in the nature of private and not public interests and cannot be understood as being in the beneficial interests of Australia.
29. Ms Fan pointed to the import and export activity of Auyong Investment Pty Ltd however the lamb exported to China occurred in June 1998 being almost four years before the application for citizenship was made and the import of scallops from China to Australia occurred in May 1999 being almost three years before the application for citizenship was made. There is nothing which points to any activity by that company at or about the date of application for citizenship or subsequently which amounts to activity beneficial to the interests of Australia.
30. The substantial part of the applicant’s claim for citizenship was based on her employment by David Glory in China sourcing persons to travel to Australia for educational or commercial reasons. It was said that this activity was beneficial to Australia because it provided “tourism export for Australia”.. It was also submitted by Ms Fan that she was important to the activities of David Glory in China because she had a close connection to Government officials and other persons and was eminently placed to locate persons who would travel to Australia.
31. Having read the documents lodged and having heard Ms Fan in evidence we are not satisfied that the persons that were sourced by her to travel to Australia establishes any beneficial interest to Australia. Whilst Ms Fan clearly did have skills enabling her to organise tours to Australia, her value as an employee in China is not (with respect) at the level that she asserted. She has not worked for David Glory since June 2002 (whilst she has been resident in Australia) and her position has been filled by a part time person.
32. We are satisfied that the activity in China was in the nature of organising group tour travel to Australia through the David Glory Tour Centre. Certainly the activity might produce foreign currency revenue but we are satisfied that the number of tours organised by Ms Fan have been overstated.
33. Additionally we have some reservations concerning the number of students that Ms Fan herself arranged to travel to Australia in her three years of employment. We note a letter from David Glory Group Pty Ltd dated 31 July 2002 found at page 70 and 71 of the T documents gives a history of student travel which differs from Ms Fan’s submissions.
34. On balance and for the above reasons we are not satisfied that viewed objectively, the activities of Ms Fan on behalf of David Glory or on behalf of her family trust, collectively or singularly, has been beneficial to the interests of Australia. It is our view that any benefit to be obtained by her activities has been enjoyed by her privately or by her employer.
35. Nothing points to her activity which has been “widely recognised” by the Australian community or by “prominent persons associated with the applicant’s field of endeavour”. In the context of overall economic activity in Australia the contribution of Ms Fan on behalf of the David Glory would be so minuscule that it could not be labelled as beneficial. Additionally there were no activities undertaken by Ms Fan in China which were of a “social cultural economic or political nature (refer Policy earlier). We cannot find that Ms Fan was engaged in activities beneficial to the interests of Australia because of the absence of commercial or other advantage to the public of Australia (refer Roberts earlier).
36. In the circumstances we are satisfied that the decision under review should be affirmed.
I certify that the 36 preceding paragraphs are a true copy of the reasons for the decision herein of Mr J Handley,
Senior MemberSigned: Elsa Genovese
Personal AssistantDate/s of Hearing 26 May 2003
Date of Decision 1 July 2003
Representative for the Applicant Ms L Yang
Solicitor for the Respondent Ms E ArducaAustralian Government Solicitor
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