Ge and Minister for Immigration and Multicultural and Indigenous Affairs

[2003] AATA 514

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2003] AATA 514

ADMINISTRATIVE APPEALS TRIBUNAL      )

)     No  N2002/1419

GENERAL ADMINISTRATIVE DIVISION )

Re HAI WANG GE

Applicant

And MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

Respondent

DECISION

Tribunal Senior Member M D Allen

Date21 May 2003

PlaceSydney

ADMINISTRATIVE APPEALS TRIBUNAL   )         No N2002/1419

)  

GENERAL ADMINISTRATIVE DIVISION     )

Re:     HAI WANG GE

Applicant

And:     MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

Respondent

DECISION

Tribunal              Senior Member M D Allen

Date  21 May 2003

Place                   Sydney

DecisionFOR the reasons given orally at the conclusion of the hearing in this matter, the decision under review is SET ASIDE and this matter is remitted to the Respondent for further consideration in accordance with the Tribunal’s reasons for decision.

(Sgd)         M.D. ALLEN
  ..............................
   Senior Member

CORRIGENDUM  TO  DECISION

Tribunal        :       Senior Member M D Allen

Date               :      11 June 2003

Place             :      Sydney     

The Tribunal’s decision in this matter dated 21 May 2003 is amended as follows. At the conclusion of the Reasons for Decision:

1.    Delete the name and firm given for the Solicitor for Applicant and substitute the words “Mr J Cameron, Johninfo Lawyers”.

2.    Delete the name and firm given for the Solicitor for Respondent and substitute the words “Mr G Peek, Australian Government Solicitor”.

(Sgd)            M D ALLEN

..........................................
  Senior Member

CATCHWORDS

CITIZENSHIP – application for grant of Australian citizenship where Applicant not resident in Australia – were activities in acting as a travel agent in Shanghai promoting tours to Australia activities beneficial to Australia – fact primary purpose profit not a disentitling factor.

Australian Citizenship Act 1948 – s13

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

re Ho and Minister for Immigration and Ethnic Affairs 34 ALD 664

re Taechaubol and Minister for Immigration and Multicultural Affairs [2001] AATA 425

REASONS FOR DECISION

Senior Member M D Allen

1. At the conclusion of the hearing of the above matter the terms of the decision intended to be made and the reasons therefor were stated orally. After service upon the Respondent of a copy of the decision that was in fact made, the Respondent pursuant to Sub‑section 43(2A) of the Administrative Appeals Tribunal Act 1975 requested the Tribunal to furnish to the Respondent a statement in writing of the reasons of the Tribunal for its decision.

2.      The oral reasons for decision have been transcribed by Auscript, the Commonwealth Reporting Service.  Whereas those oral reasons may reflect the inelegance of an extempore decision, they are in fact the reasons for the said decision.

3.        The said transcript is annexed hereunto and furnished to the Respondent and to the Applicant as it is the reasons for the Tribunal's decision.

I certify that this and the preceding page are a true copy of the decision and reasons for decision herein of:

Senior Member M D Allen

Signed:         
          ....................................................................................……………………………….

Associate

Date of Hearing  21 May 2003

Date of Decision  21 May 2003

Solicitor for Applicant                   Mr G Peek, Australian Government Solicitor

Solicitor for Respondent              Mr J Cameron, Johninfo Lawyers

ORAL REASONS FOR DECISION
ADMINISTRATIVE APPEALS TRIBUNAL
Matter No N2002/1419
By M.D. ALLEN, Senior Member
GE and MINISTER FOR IMMIGRATION,
MULTICULTURAL AND INDIGENOUS AFFAIRS
SYDNEY, 21 MAY 2003

MR ALLEN: In this matter pursuant to an application lodged with the Tribunal on the 24th day of September 2002 the applicant seeks review of a decision by a delegate of the Minister for Immigration, Multicultural and Indigenous Affairs made on the fourth day of September 2002 that he did not qualify for the grant of Australian citizenship. I note that the actual formal decision and the reasons for decision which are dated 26 August 2002 are set out at pages 173 to 175 of the documents prepared for the Tribunal pursuant to s37 of the Administrative Appeals Tribunal Act 1975.

Section 13 of the Australian Citizenship Act 1948 as amended reads:

(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;

In this matter it is agreed between the parties that the applicant is a permanent resident, having achieved that status on 26 October 1999.  He is over the age of 18 years and although no evidence was led on the part, presumably he understands the nature of the application.

It is also agreed that the applicant did not meet the residency qualifications as set forth in paragraphs (d) and (e) of ss(1) of 13. 

Section 1A of the Act reads:

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

(a)       the person is a permanent resident; and

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

Paragraph 13(4)(b) of the said Act then goes on to provide that the Minister may, in his discretion, treat a period during which the applicant A, was a permanent resident and 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.

Now, in this matter the decision of the delegate reads inter alia:

As you did not meet the residency requirements your application was considered for the exercise of discretionary powers available under ss13(4)(b)(i) of the Act.  However, a decision was made not to exercise these discretionary powers in your case.

At paragraph 2.2.3 the delegate gave reasons for not exercising the said discretion and the matter before me today devolved down to a question of whether the applicant’s activities outside Australia could be said to be of benefit to Australia in the sense referred to in paragraph 13(4)(b)(i) of the Citizenship Act.

I will just mention here that ss(1) of s13 goes on to provide the following criteria for the grant of Australian citizenship, namely:

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

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

(j)if granted a certificate of Australian citizenship, the person is likely to reside, or to continue to reside, in Australia, or to maintain a close and continuing association with Australia.

None of those matters was addressed by the delegate and although some evidence on matter (j) was led before me today it is a matter regarding which I have been urged to remit should I find in favour of the applicant and I agree that this is a proper course as the case before me today was fought purely on the basis of activities beneficial to Australia. I note also that the delegate appears not to have addressed the ameliorating provisions in paragraph 13(9)(c) of the Citizenship Act.

The binding authority on me as to what are activities beneficial to the interests of Australia is the Federal Court decision of Minister for Immigration, Local Government and Ethnic Affairs v Roberts 29 ALD 656 where at 660 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 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.

In Re Ho v Minister for Immigration and Ethnic Affairs 34 ALD 664 Deputy President McMahon said:

I pointed out in Re Chen v Department of Immigration and Ethnic Affairs that the context of the Act indicates that s13(1)(d) is intended to ameliorate the application of s13(1) but only in exceptional circumstances.

It would be noted however that there is nothing in Roberts to say that the fact that an applicant has a made a profit in regard to his activities is a disentitling factor.  It would seem in some ways that by promoting his own interests an applicant may at the same time also be promoting benefits to Australia and Australian companies.  The matter was stated in Re Kow v Minister for Immigration and Ethnic Affairs 30 ALD 916 by Senior Member Hotop as he then was in the following terms. Namely, the fact that the applicant's private interests benefited from his activities did not mean that those activities could not also benefit the public interest of Australia.

The learned Senior Member went on to say that:

The applicant’s activities in promoting and arranging the export of Australian timber were beneficial to the interests of Australia.  Although the value of such exports to date was relatively small it was not so small and insignificant that it should be discounted.  Furthermore, activities involving the promotion of Australian exports may themselves be presently beneficial to the interests of Australia quite apart from the value of Australian exports that are actually generated by such promotion.

In Taechaubol v Minister for Immigration and Multicultural Affairs (2001) AATA 425 Senior Member Sassella at paragraph 138 attempted to summarise various cases and deduce from them certain propositions. Although this extrapolation of cases I found helpful, it must be remembered that the leading authority is Roberts supra and each case must depend upon its own facts.  What Senior Member Sassella did state is that: the cases lead to the following propositions.  Namely that the benefit to the interests of Australia can be economic, cultural or social, commercial or otherwise.  The benefits can be of a general or non specific nature but must be more than the private interests of the applicant.  Australian employment attributable to an applicant’s activities overseas can indicate that the applicant has been involved in activities beneficial to the interests of Australia.  The overseas benefits must be beneficial to the interests of Australia at the time they are engaged in not at future time and must not be so remote, indirect or speculative as regards Australia's interests that they cannot be taken into account.  On the other hand, activities such as promotion of Australian art or work overseas for an Australian company may be beneficial.

Having referred to those particular points I now turn to this particular applicant.  It would appear, given the evidence before me today, that the applicant had experience in the airline industry and had been based in Australia from August 1996 to August 1998 as the representative of a Chinese company, Chinese Eastern Airlines.  He there made the acquaintance of Mr Zhang who is the managing director of AWL Travel Services which is the name pursuant to which Mr Zhang's company, All Rise Enterprise Pty Ltd trades.

As a result of his contacts with Mr Zhang the applicant entered into employment with AWL Travel Services and his first posting with that company was to Singapore where he acted together or in concert with a Singapore registered company to provide the services of a travel agent including directing tourists from Singapore to Australia.  There was then an alliance entered into with a Chinese company, China Merchant International Travel and the applicant relocated to Shanghai the idea being that with his contacts he would build up the business so as to increase the flow of tourists from China to Australia.

In his statutory declaration which is contained in exhibit A3 the applicant says:

In the first year the China office was started tourists came mostly from Shanghai.  The majority of these tourists were from companies and government delegations whom I had good associations with.

He then added:

In the second year we had a huge increase.  Turnover of inbound tourists from China became approximately $3 million.  This was because of the introduction of the approved destination status.  In the third year our turnover from the Shanghai office was approximately $5 million.  At this time AWL and myself agreed to develop the Singapore market to expand the company's market share.

That latter statement which seems somewhat in contrast to the applicant's evidence today which I understood was that he first started in Singapore.  However, I put no real store in that.  What I do note is that in cross-examination he said that he thought that his firm had 90 per cent of the market of tourists leaving China to travel to Australia.  The one market he doesn't have is the backpacker market.

In the 2001 year he estimates that there were 7000 to 8000 Chinese travellers who came to Australia whereas in the year 2002 there would have been about 18,000.  Specifically asked, he said without our company half of those tourists would not have come to Australia.  He further added:

I can say the increase was due to the marketing activities of our company.

In exhibit A3 is a statutory declaration from Mr Zhang who, as I said, is the managing director of All Rise Enterprise Pty Ltd, but trades under the name of AWL Travel Services.  In that statutory declaration he says, paragraph 21 and 22:

As you can see from these financial reports, with proper exposure and access to the Shanghai marketplace we managed to increase our sales income to $A14,495,869 and $A17,155,308 respectively.  As is evident from our most recent 2002 financial reports the company now achieves a turnover in excess of $A20 million.  I attribute this success to our establishment of an efficient network in China.  Through Mr Ge we have been able to establish these networks as well as arrange many official and non-official delegations of Chinese government officers.

At paragraph 25 he said:

Through Mr Ge's efforts AWL Travel Service has become an ambassador to Australian travel options for Chinese tourists.  We actively market Australian tourism as the best choice for tourists and are successful in competing against other countries whose agents all have attractive tourism packages.

He added:

I sincerely believe that without a physical presence in China it is impossible to compete with other countries who are physically marketing their tourism itineraries and products to potential tourists in China.

In a market development report contained in exhibit A3 the applicant reported to his principals as follows:

The number of travellers from China to Australia is greater than expected. Through the effort of our Shanghai office over the past the Chinese market has realised the reliability and quality of our service.  The number of Chinese tourists to Australia is expected to be more than 10,000 this year.

And that is dated 5 January 2002.

In exhibit A2 there is a series of documents, annexure C thereof shows that there was arranged between the applicant a visit to Australia by agreement dated 6 November 2002, 29 delegates from the Information Centre of Taxation Department of State, Peoples' Republic of China.  A further document there in annexure C shows an agreement to bring to Australia 34 delegates from the Bheijing Founder Aode Computer System Limited Company in March 2002 whereas on 21 October 2002 a further 27 delegates from the Information Centre of Taxation Department of State, Peoples' Republic of China were to come to Australia through the arrangements entered into by the applicant.

Mr Huang, on 20 October 2002 stated in a memo that due to the applicant’s influence the number of parties from China was increasing.  Indeed he says the increase is 80 to 100 per cent.  It is, from what I have said from the cases earlier, very much a matter of fact and degree what are activities beneficial to the interests of Australia but in the present state it seems to me that by bringing tourists into Australia there is an economic benefit to Australia.  When one looks at the government bodies that have come in there is an additional benefit to Australia by arranging and encouraging the visit to Australia of representative of departments of government of the Peoples' Republic of China and it is a benefit which it flows not only to the Australian economy but it might be said to Australia's international relations.

For these reasons therefore I consider that the applicant’s activities, although certainly they have as their main purpose, as one might expect, the achievement of profit to his company, at the same time created benefit to Australia and that the ameliorating provisions of ss1A and 4, s13 have been made out in his case. As I stated earlier, other provisions of ss(1) of s13 have not been addressed and I consider that they in this case raise real questions as to the eligibility of the applicant but as requested by the applicant's solicitor I remit that matter to the respondent.

The decision of the Tribunal will be that the decision under review is SET ASIDE and this matter remitted to the respondent for further consideration in accordance with these reasons.