Glonek and Minister for Immigration and Multicultural and Indigen Ous Affairs
[2003] AATA 1275
•8 December 2003
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2003] AATA 1275
ADMINISTRATIVE APPEALS TRIBUNAL )
) No S2002/471
GENERAL ADMINISTRATIVE DIVISION ) Re PHACHNEE GLONEK Applicant
And
MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
Respondent
DECISION
Tribunal Deputy President D G Jarvis Date8 December 2003
PlaceAdelaide
Decision The Tribunal affirms the decision under review. D G Jarvis
(Signed)
Deputy President
CATCHWORDS
AUSTRALIAN CITIZENSHIP - requirement of presence in Australia for relevant periods not satisfied - engaged in activities beneficial to the interests of Australia - permanent resident status - discretion to treat time spent outside Australia as if it were time spent in Australia - promotion of Australian business interests in Thailand – Ministerial policy guidelines for exercise of discretion - spouse of Australian citizen – no significant hardship or disadvantage if not granted citizenship – meaning of “significant hardship or disadvantage” - maintaining a close and continuing association with Australia – refusal of application for citizenship affirmed.
Australian Citizenship Act 1948, s 13(1), s 13(1A), s 13(4)(b)(i) and s 13(9)(c)
Australian Citizenship Instructions
Re Taechaubol and Minister for Immigration and Multicultural Affairs [2001] AATA 425
Re Drake and Minister for Immigration and Ethnic Affairs (No.2) (1979) 2 ALD 634
Re Dainty and Minister for Immigration and Ethnic Affairs (1987)12 ALD 416; 6 AAR 259
Drake v Minister for Immigration and Multicultural Affairs (1979) 2 ALD 60
Re Aston and Secretary, Department of Primary Industry (1985) 8 ALD 366
Minister for Immigration, Local Government and Ethnic Affairs v Roberts (1993) 41 FCR 82
Re Ho and Minister for Immigration and Ethnic Affairs (1994) 34 ALD 664
Re Lee and Department of Immigration and Ethnic Affairs (1988) 10 AAR 270
McVeigh v Willara Pty Ltd (1984) 6 FCR 587
Bailey v Forestry Commission of New South Wales (1989) 67 LGRA 200
Man Ki Kim v Minister for Immigration and Ethnic Affairs (1995) 37 ALD 481REASONS FOR DECISION
8 December 2003 Deputy President D G Jarvis Introduction
1. The applicant, Phachnee Glonek, applied for Australian citizenship on 31 January 2002. Her application was refused by a delegate of the respondent on 11 November 2002. She applied to this Tribunal for review of that decision pursuant to s 52A of the Australian Citizenship Act 1948 (the “Act”). I have decided to affirm the decision under review, for the reasons set out in detail below.
2. Ms J McGrath of McDonald Steed Lawyers represented the applicant and Mr T Fell, a solicitor employed by the Australian Government Solicitor, represented the respondent.
3. The applicant, her husband, Jonathan Amos Nicolas Glonek, her mother-in-law, Judith Glonek, and John Angove gave evidence in person in support of the applicant’s case, and Neil Thomas Paulett, Dana Caron, Mark Cawley and Kathy Lindsay gave evidence by telephone.
4. The Tribunal received in evidence the documents lodged pursuant to s 37 of the Administrative Appeals Tribunal Act 1975, and also a number of other documentary exhibits, including letters from various persons relating to the activities of the applicant in Thailand in promoting the recognition, marketing and sale of Australian wine in Thailand. I will refer later to the contents of a very comprehensive and helpful booklet of witness statements and other material submitted by Ms McGrath, which was admitted in evidence as exhibit A2.
Background
5. The background facts, which are not in dispute, are as follows. The applicant was born on 12 February 1960. She first entered Australia in 1988 as the holder of a student visa and married her husband Jonathan Amos Nicolas Glonek, an Australian citizen, in 1992. The applicant was granted a permanent resident visa on 12 May 1992, and currently holds a resident return visa sub-class 115 which expires on 3 August 2005 (T6, page 62). This entitles the applicant, during the currency of the visa, to remain in Australia indefinitely pursuant to s 30 of the Migration Act 1958.
6. In July 1994 the applicant and her husband commenced work with a Thai company, Bangkok Wine Cellars, to undertake research and development of the wine business and to arrange the export of wine from Australia to Thailand. They subsequently registered their own company, Bangkok Fine Wine Company Limited (“Bangkok Fine Wines”) in 1995, and this company has similarly engaged in the importation and distribution in Thailand of Australian wine, and also small quantities of wine from other countries. The applicant has been directly involved in these activities, and I refer in detail below to the nature and extent of her involvement. The applicant and her husband have continued to live in Bangkok since 1994, except for periodic visits to Australia, and except for a period between June and November 1998, when they returned to Australia because of a severe downturn in their business in Thailand due to the Asian economic crisis.
Issues for Determination
7. Under s 13(1) of the Act, the Minister for Immigration and Multicultural and Indigenous Affairs has a discretion to grant Australian citizenship to a person who satisfies the Minister of the various criteria set out in that section. The applicant does not satisfy the criteria referred to in s 13(1)(d) and s 13(1)(e), which require an applicant to be present in Australia as a permanent resident for a period of, or for periods amounting in the aggregate to, not less than
· (in the case of s 13(1)(d)), one year during the period of two years immediately preceding the date of the application for citizenship, and
· (in the case of s 13(1)(e)), two years during the period of five years immediately preceding the date of the application for citizenship.
8. Where the applicant does not satisfy s 13(1)(d) or (e), the Minister has a discretion, under s 13(4)(b)(i), to treat a period during which an applicant (being a permanent resident who was not present in Australia) 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 issues before the Tribunal are whether the applicant’s activities are considered to be beneficial to the interests of Australia, and if so, whether the discretion conferred by s 13(4)(b)(i) should be exercised in favour of the applicant.
9. In addition, the respondent’s delegate did not make any determination in respect of s 13(1)(j) of the Act, under which the applicant was required to satisfy the delegate that if her application was granted, she was likely to reside, or to continue to reside, in Australia, or to maintain a close and continuing association with Australia. It is common ground that the applicant satisfies the remaining criteria in s 13(1).
10. It is also necessary to consider whether the Minister should grant Australian citizenship to the applicant pursuant to s 13(9)(c) of the Act on the grounds that she is the spouse of an Australian citizen. This, in turn, involves considering whether the applicant would suffer significant hardship or disadvantage if she is refused Australian citizenship, as this would constitute an exception to the residential requirements under the applicable Ministerial policy.
Legislation
11. Section 13(1) of the Act confers on the Minister for Immigration and Multicultural and Indigenous Affairs a discretion to grant a certificate of Australian citizenship to a person who satisfies the criteria enumerated in that subsection. These criteria include the following requirements (see s 13(1)(d), (e) and (j)):
“(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;”
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.”
Section 13(1A) provides as follows:
“(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.”
Section 13(4) provides as follows:
“(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)… 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 …”.
Under s 13(9)(c) the Minister has a discretion to grant a certificate of Australian citizenship to a person “who is a permanent resident and is the spouse, widow or widower of an Australian citizen”.
12. When considering the discretions which are conferred by s 13 of the Act, it is also necessary to consider the Australian Citizenship Instructions issued by the Minister (the “Instructions”). Chapter 4 of the Instructions relates to the grant of Australian citizenship. The overview of this chapter says that it “sets out the legislative requirements and also the policy which gives guidance on how to apply discretions. … Section 13(1) gives the Minister a discretion to grant citizenship if certain statutory criteria are satisfied. The rest of s 13 sets out exemptions to those requirements and discretions to vary the requirements.” I will set out the relevant parts of the Instructions later in these reasons.
The Evidence Before the Tribunal
Phachnee Glonek
13. Mrs Glonek provided a signed statement dated 14 May 2003. That statement was tendered as part of exhibit A2, and Mrs Glonek supplemented her statement with oral evidence to the Tribunal. In her statement Mrs Glonek said that she was raised and educated in Betong Yala Province. She speaks Mandarin, Cantonese, Thai, English and Hakka (a Chinese dialect). She worked as a Chinese to Thai translator for approximately 3 years after completing secondary schooling in Bangkok, and she went on to secretarial studies at a Bangkok college.
14. After short periods of employment as a tour guide and selling insurance, Mrs Glonek returned to her home town of Yala when she was approximately 27 years old. Mrs Glonek then decided to travel and study in order to improve her English language skills and upon researching her options, she decided to travel to Australia.
15. Mrs Glonek came to Australia in 1988 on a Student Visa. She said she lived in Melbourne, enjoyed her lifestyle there and made friends easily, many of whom she is still in contact with. She eventually completed a Diploma in Hotel Management.
16. Mrs Glonek met her husband whilst she was a student in Melbourne, and they were married in December 1992. Mrs Glonek described her marriage as one in which she and her husband care about each other, they want to share their lives together and, in fact, do share their lives and work in their business together. She said they are together almost constantly.
17. At the time that they met, Mr Glonek was a violinist for the Melbourne Symphony Orchestra but after their marriage, Mr and Mrs Glonek began to look for a small business to run. Thai giftware importation was the first business they considered, but the market was already very competitive and they decided against it. Mrs Glonek said that although they both liked Melbourne and wanted to run a business from there, the opportunity to import wine into Thailand arose after one of her brothers indicated that he wanted to invest in a wine business. In 1994 Mr and Mrs Glonek established a relationship with a Thai wine distributor, Bangkok Wine Cellars. That company distributed wine from all over the world. The Gloneks eventually acquired a 10% interest in that business and moved to Thailand in July 1994 to give the business all of their attention.
18. After about one year, Mr and Mrs Glonek decided to take advantage of the opportunities they saw in Thailand and registered their own business, Bangkok Fine Wines, in Thailand in 1995. That business still operates in Thailand and Mrs Glonek said that it presently employs 7 people on a full-time basis. The business went through significant financial difficulties as a result of the Asian economic crisis in 1997. Mrs Glonek said the economic situation led to an increase in import tax in Thailand from around 120% in 1994 to 400% in 1997. Mrs Glonek recounted that the Thai government increased import tax on luxury items and wine is one such item. She said that the import tax was still at a very high level, but she had heard that the import tax may be reduced after an APEC meeting in October 2003. High import tax and an unfavourable exchange rate caused significant financial loss for Bangkok Fine Wines. Mr and Mrs Glonek paid all of their Australian wine suppliers and came back to Australia in February 1998 with the intention of remaining in Australia on a long term basis.
19. They then resided in Melbourne and looked for employment in Australia but could not find positions that were commensurate with their skills and experience. Mrs Glonek told the Tribunal that she was very happy in Melbourne as she was able to spend time with her friends and Mr Glonek’s family. While they were in Australia in 1998, Mr and Mrs Glonek received information which led them to believe the wine market in Thailand was recovering. In particular, Mrs Glonek said that they became aware of a company in Thailand which needed a distributor to market and sell a large quantity of Australian wine. They came to an arrangement that included purchase of the stock at a significant discount, and again departed for Thailand in November 1998.
20. Since then Mr and Mrs Glonek have rejuvenated their business and promote and import Australian wines, though they also stock and distribute small quantities of wines from South Africa, America, New Zealand and Chile, which that they purchase from another importer in Thailand called The Wine Gallery. Mrs Glonek said that they only import Australian wines and the majority of their sales consist of Australian wines. She listed Angove’s and Pauletts as two of the business’s Australian suppliers.
21. Mrs Glonek said that her role in the business consisted of marketing, accounting and translating, particularly when Mr Glonek conducts lectures on wine at Thai hotels. She also produces materials that are used in the lectures, such as an Australian map, videos and information about the wines. Mrs Glonek told the Tribunal that she carries out negotiations with, and translates for, local purchasers and suppliers. Bangkok Fine Wines employs an assistant manager, administrative staff, messenger, delivery boy and two sales staff. The business stations sales staff at supermarkets where they promote and sell the wines. Mrs Glonek explained that Bangkok Fine Wines also supplies wines to restaurants, companies and hotels. Mr and Mrs Glonek have also paid for customers to travel to Australia and take winery tours. To date, 15 people have been flown to Australia in two groups. Bangkok Fine Wines paid for the airfares and accommodation for these people, most of whom represent hotels and supermarket chains. Mrs Glonek said the purpose of these visits was to facilitate a better understanding of Australian wine and to associate the clean air and good food with the quality of Australian wine. These people were taken to a vineyard in Western Australia. It was Mrs Glonek’s evidence that she and her husband have worked tirelessly to raise the profile of Australian wine in Thailand and that their activities are highly beneficial to Australia.
22. Mrs Glonek explained that the long-term plans for Bangkok Fine Wines involve establishing a manager in Bangkok to look after the business while Mr and Mrs Glonek live in Australia permanently. Mrs Glonek said they would like to put more effort into an Australian company formed by Mr Glonek, Steiner Global Services Pty Ltd (“Steiner”), by expanding its business so as to export Australian wine to more countries than Thailand alone. Mrs Glonek said her language skills could be put to excellent use if the business were to expand into other Asian countries. However, before Mr and Mrs Glonek could leave the Bangkok Fine Wines business in the hands of local staff, Mrs Glonek acknowledged that the staff would need more training in management skills and responsibilities, and on the qualities of Australian wines, and in the skills necessary to market Australian wines by themselves.
23. Mrs Glonek said that culturally and emotionally she identifies as an Australian. She said that she and her husband have very strong ties to the Bangkok Australian Embassy and Austrade. Bangkok Fine Wines sometimes sponsors embassy functions and also sells to the American Chamber of Commerce in Thailand. The fact that Mrs Glonek is married to an Australian has caused her difficulties in Thailand. She said that it affects her ability to own land and that she is not allowed to own property while she is married to a foreigner. She said that this was the reason why she did not register the marriage in Thailand though it is registered in Australia.
24. On cross-examination, Mrs Glonek conceded that she had lived in Thailand since 1994, other than for 6 months in Australia in 1998. A record of Mrs Glonek’s travel as at 20 May 2002 indicates that after she departed from Australia on 19 December 1991, she arrived in and departed from Australia in the period until 20 May 2002 as follows (T12, pp 217-221).
Arrive Australia 30/01/1992 Arrive Australia 22/02/1998 Depart Australia 24/12/1992 Depart Australia 21/05/1998 Arrive Australia 15/01/1993 Arrive Australia 20/06/1998 Depart Australia 21/09/1993 Depart Australia 20/11/1998 Arrive Australia 02/11/1993 Arrive Australia 12/01/2002 Depart Australia 29/07/1994 Depart Australia 23/01/2002 Arrive Australia 24/07/1995 Arrive Australia 04/03/2002 Depart Australia 29/07/1995 Depart Australia 08/03/2002
She agreed that were it not for external factors, such as the economic crisis, she would not have lived in Australia for almost 10 years. The respondent pointed out that Mrs Glonek’s present visa allows her to travel freely in and out of Australia, and referred to the fact that Mrs Glonek had booked the flight to come to Australia on the Monday before the Thursday hearing without difficulty. Mrs Glonek confirmed she was not a shareholder or proprietor of the Australian business, Steiner, but that that company was involved in the locating, packaging and shipping of wines for Bangkok Fine Wines. She also said that she could not guarantee that Bangkok Fine Wines would be sufficiently independent within 6 months so as to enable Mr and Mrs Glonek to return to Australia. Mrs Glonek nominated the present world security crisis and the desire to be able to come back to Australia at any time with her husband, without the need to ensure a valid visa was in force, as the reason for her application for Australian citizenship. She supported her concerns by reference to the Australian Embassy’s warning that Australian citizens in Thailand should return to Australia immediately.
Jonathan Amos Nicolas Glonek
25. Mr Glonek also provided a signed statement dated 14 May 2003, which was tendered as part of exhibit A2 and was supplemented by oral evidence at the hearing. Mr Glonek was born in Adelaide where he also attended college and university. He studied and worked internationally and subsequently gained a position as a violinist with the State Orchestra of Victoria, and some five months later commenced employment with the Melbourne Symphony Orchestra in the first violins section.. Mr Glonek remained in that position on a full time basis for around 4 years, but for various reasons, he was dissatisfied with that work.
26. Mr Glonek confirmed that he and his wife live and work closely together and share a mutual commitment to a life together as husband and wife. He said it was difficult for Mrs Glonek to get employment when they were in Melbourne, though she enjoyed an active social life there. Mr Glonek left the Melbourne Symphony Orchestra after his marriage to Mrs Glonek but he did not make enough money from his musical work, and he realised that a business could provide the independence and economic security they were seeking.
27. Mr Glonek confirmed that he and his wife subsequently decided that importing Australian wine into Thailand was a unique business opportunity which was open to them. They did not conduct any market research but, rather, they wrote to South Australian wineries and spoke to the wineries directly. He said they had a good feeling about the chances of success for the venture and have never regretted entering the wine business.
28. An opportunity arose to commence importing Australian wines into Thailand in July 1994 and, in conjunction with business partners, the Gloneks began importing through Bangkok Wine Cellars. When it became apparent that the business partners in Thailand were not able to adequately market the stock the Gloneks moved to Thailand to help with the business. They believed it was only a temporary measure at the time, and Mr Glonek confirmed that they withdrew from the partnership and that they established their own business, Bangkok Fine Wines, in 1995.
29. When Bangkok Fine Wines commenced importing and selling Australian wine it became apparent to Mr and Mrs Glonek that Australian wine was without profile in Thailand and that they would have to build a market for the product. Mr Glonek said that building a market involved educating people about wine production in Australia, explaining why Australian wine has a different taste to the French and American wine which was popular at the time, and promoting the particular vineyards which supplied the Australian wine. He said that no-one else imported boutique Australian wines into Thailand at that time and each bottle was promoted and sold personally by hand. In order to develop press relations, Mr Glonek said that he and his wife “had to be everywhere” offering tastings, building events around which to promote the wines, entertaining customers at dinner and intensive staff training.
30. In explaining what was involved in staff training, Mr Glonek said many of the hotel staff have minimal English skills and while Mr Glonek can speak Thai, he is not able to convey the detail and structure of the wine lectures with the same effect as his wife. Mr and Mrs Glonek are unique in their ability to instruct Thai people about wine in this fashion and he said that he is the only Australian selling Australian wine in Bangkok.
31. Mr Glonek stated that the business only carries a small stock of non-Australian wines. Exhibit A3 comprises invoices from Wine Gallery to Bangkok Fine Wines and evidences purchases of non-Australian wines. The invoices are written in Thai with English handwritten notes as to the country of origin of each product. In his evidence, Mr Glonek said that the average yearly amount of non-Australian wine purchased by Bangkok Fine Wines is approximately 30 cases from New Zealand, 120 cases from the United States of America, 100 to 120 cases from Chile and around 30 to 40 cases from South Africa. Exhibit A5 records that AUD$264,625.20 was spent by Bangkok Fine Wines on importing Australian wines and other products into Thailand and the total volume of wine imported was 61,085 litres (excluding one of the customers listed on that exhibit). In cross-examination, Mr Glonek estimated that around 8% to 10% of Bangkok Fine Wine sales consists of non-Australian wines. He agreed that Australian wines constituted 90% of the sales; 60% being Brokenhills Estate Wines and 30% comprising assorted Australian wines.
32. Item 21 of exhibit A2 is a record of Australian wine exports to Thailand. It shows that in the financial year 2001-2002 the total volume of wine exported to Thailand was 875,419 litres. The percentage of wine imported by Bangkok Fine Wines was accordingly approximately 7% of total wine imports into Thailand.
33. Mr Glonek said that customers of Bangkok Fine Wines include Tesco, Foodland and Villas and hotels such as the Sheraton, Marriot, Central, Hilton, Regent and Hyatt hotel groups. He said this provides a national profile for the Australian wines promoted by Bangkok Fine Wines. Central Hotels also have properties in Vietnam and Timor and they use the Brokenhills Estate Wine as the house wine by the glass and another six Bangkok Fine Wines are on their preferred wine list. He confirmed that Bangkok Fine Wines have taken hotel representatives on promotional wine tours to Australia. He provided a list of names of persons who have travelled to Australia on a Bangkok Fine Wines promotional tour as reproduced below:
1. Mr and Mrs Wuttisak Pichayagan (Food and Beverage Mgr Central Hotels) 2002
2. Mr Nappadon (Food and Beverage Mgr, Central Hotels) 2002
3. Ms Supannee (Manager, Foodland) 2002
4. Pairach Intapuch (Food and Beverage Mgr, JW Marroit) 2002
5. Mr Ed Thompson (Food and Beverage Mgr, Mariot Hua Hin ) 2002
6. Mr Doug Harrison (Owner, Bourbon St Restaurant) 2003
7. Mr Mark Cawley (Food and Beverage Mgr, JW Marriot) 2003
8. Mr David Wong (Food and Beverage Mgr, Marriot) 2003
9. Mr Manoon (Food and Beverage Mgr, Central) 2003
10. Mr Ed Thompson (Marriot Hua Hin) 2003
11. Mr and Mrs Florence Dolle (EAM Conrad Hotel Bkk) 2003
12. Mr Dana Caron (President, Food and Beverage Assoc. Thailand) 2003
In particular, Mr Glonek said they have focussed on building a relationship with the food and beverage managers of the hotels and this relationship continues when the managers transfer to new positions and even new countries. In this way, Bangkok Fine Wines has extended the market for their products and for Australian wines.
34. The events in 1998 that led to Mr and Mrs Glonek returning to Australia were described by Mr Glonek and he said they traded out of their difficulties but returned to Australia due to severe cash flow problems. Mr and Mrs Glonek suspended the business in Thailand, but it took six months for realistic job opportunities to present themselves in Australia. During those six months Mr and Mrs Glonek decided to create their own label to market. In order to facilitate this, Mr Glonek registered Steiner in 1999 and he remains the sole proprietor of that company. Steiner is an Australian company which organises the design and packaging for Brokenhills Estate Wines and coordinates the export of Australian wines to Bangkok Fine Wines and Wine Gallery in Thailand. Mr Glonek credits the Brokenhills Estate Wines with turning the business of Bangkok Fine Wines around and, in his estimation, that label now accounts for 60% of their sales. He said all Brokenhills Estate Wines come from South Australia and it is a product that is moving towards being able to “sell itself”. A further product from the McLaren Vale region in South Australia is presently in production.
35. Mr Glonek is concerned about the potential for acts of terrorism in Thailand including, in particular, the impact of any such acts upon the business and the personal safety of himself and his wife. He also referred to the restrictions placed upon non Thai property owners under s 94 of the Land Code (see exhibit A2 at item 17) and his consequential inability to inherit land from Mrs Glonek. It appears from exhibit A6 that this law and policy prescribe the circumstances in which a Thai female with an alien spouse may hold or own property, or pass that property on to her spouse in her will. However, Mr Glonek acknowledged that there is an exemption, albeit subject to the approval of the Minister, provided for by the Act Amending Land Code (Land Ownership of Foreigners) (No. 8) B.E. 2542 (1999) which applies where a minimum of 40,000 Baht is invested by a foreigner.
36. In his statement, Mr Glonek said that he and Mrs Glonek have always worked co-operatively and respectfully. He concedes that he is a good violinist who has learnt to sell wine, but he could never be part of a successful wine business in Thailand were it not for his wife’s presence and contributions. In particular, he referred to Mrs Glonek’s contribution in administering the company and negotiating business in Thailand. Mr Glonek said Mrs Glonek manages the accounts for the business, something he said he is incapable of doing. Mr Glonek said Mrs Glonek is vital to the management of the staff and that the foreign customers enjoy interacting with her because she is unlike other Thai women. She is also able to assist with marketing difficulties and is unique in her English language abilities and understanding of Australian culture.
37. In the course of cross-examination, Mr Glonek explained that in a typical day Mrs Glonek’s role in the business included going to the bank, running the office, interacting with, and translating for, clients and entertaining customers at dinner. He said Mrs Glonek had trained him in some aspects of the business but conceded she spends more time on the administrative aspects of the business than he does. Mr Glonek said he believed the business would eventually be able to run itself without their involvement in every aspect, provided there were arrangements in place, such as finance and automatic business processes. He thought those types of business processes would insulate the business when a local manager eventually takes over the day-to-day activities of the business.
Neil Thomas Paulett
38. Mr Paulett is the Winemaker Manager of Paulett Wines of the Clare Valley, South Australia. Mr Paulett gave evidence by telephone and had previously provided a signed letter dated July 2003 that was tendered as part of exhibit A2. He explained that Paulett Wines is a smaller winery producing quality wines. As it is such a small venture it does not have the cashflow or staff to market its wines. Mr Paulett said that in this regard the winery relied completely upon its distributors to the point that the distributors were critical to the development and expansion of the brand. He felt optimistic about the future of Australian wine in Thailand, and he described any development as “extremely significant”. He said that he travelled to Thailand in 1995 and saw the Gloneks carrying out their business. Mr Paulett described the efforts of Mr and Mrs Glonek as constantly ongoing, and recounted being present for numerous tastings, including one with the Australian Ambassador and a television interview. He said these activities were used as an opportunity to market Paulett Wines and Bangkok Fine Wines.
Dana Caron
39. Mr Caron is the Director of Food and Beverage at the Bangkok International Trade and Exhibition Centre (“BITEC”), the President of the Food and Beverage Association Thailand, the Chairman of the AmCham Travel and Tourism Committee and Vice President of the Trade and Exhibition Association (Thai). He provided oral evidence by telephone, and a letter from Mr Caron dated 19 May 2003 is part of exhibit A2. Mr Caron explained that the main business of BITEC is to provide a venue for exhibitions and he estimated around 22 exhibitions are held by BITEC each year. BITEC is also involved in special events and provides for business meetings and corporate parties. There is also a banquet section and a 400 seat restaurant for which BITEC uses two wines from Bangkok Fine Wines as its house wine. Mr Caron explained that BITEC has held the largest food show in Thailand and attendance has included 8,000 to 10,000 international visitors and a further 25,000 local attendees. He agreed that any wine made available through BITEC would receive a reasonable profile through the usual business of the exhibition centre. It was his evidence that there had been a shift in the Thai wine market and that in the last six years wine from Australia has come to dominate what was a French wine market. Mr Caron agreed that Mr and Mrs Glonek have contributed to this shift in the market and he referred to their practice of taking people to Australia to learn more about Australian wine. He has been on one such trip to Western Australia himself and found it to be instructive. He said that in Asia, it is who you know that is crucial to business, and he said that that was where Mrs Glonek fitted into the business of Bangkok Fine Wines. In his letter of 19 May 2003, Mr Caron refers to Mrs Glonek as “a true ambassador of Australian wines” and, in his capacity as chairman of the American Chamber of Commerce Traveland Tourism Committee, he writes that he would view Mrs Glonek and Bangkok Fine Wines as a tremendous asset to Australia. In the course of cross-examination, Mr Caron explained that Mr and Mrs Glonek brought wines to his attention rather than waiting for him to request a particular wine, and it was also Mr and Mrs Glonek’s practice to attend and sponsor association dinners where they would promote their wines.
John Angove
40. Mr Angove is the Chairman and Managing Director of Angoves Pty Ltd (“Angove’s”). He provided a letter dated 12 May 2003 which was tendered as part of exhibit A2, and he gave oral evidence to the Tribunal over the telephone. Mr Angove’s letter describes Angove’s as the 10th largest winery in Australia and the 9th largest wine exporter by volume. Angove’s is the supplier of wine and production facilities for Bangkok Fine Wine’s Brokenhills Estate and this has been the case since 1999. His letter explains that the Brokenhills Estate label consists of a colombard chardonnay and a cabernet shiraz.
Mr Angove’s letter also records that both Mr and Mrs Glonek have visited the winery plant and vineyards in order to expand their knowledge of the wine products and the Australian wine industry in general.
In his evidence, Mr Angove explained that distributors were vital to the sales of wine in Australia as the winery was “dead in the water” without someone to represent the wine in the market; he said this is especially so in non-Western markets. He described Bangkok Fine Wines as absolutely essential to the development of the Brokenhills Estate brand in Thailand. Mr Angove said he predominantly dealt with Mr Glonek, but he thought that Mr Glonek’s knowledge of the Australian wine industry and Mrs Glonek’s local knowledge of Thailand made for a “terrific combination”.
Judith Glonek
41. Dr Judith Glonek is Mr Glonek’s mother and she attended the Tribunal and gave evidence in person. Dr Glonek is a philosopher and described having Mrs Glonek in the family as “enriching”.. She said Mr and Mrs Glonek always stayed with her when they came to Adelaide. Dr Glonek said she spoke to Mr and Mrs Glonek by telephone and communicated almost daily by email. She described Mrs Glonek’s relationship with the whole family as good.
Mark Cawley
42. Mr Cawley is presently the Director of Food and Beverage of the JW Marriot Hotel in Bangkok. He provided evidence by telephone, and a letter written by Mr Cawley dated 14 May 2003 was tendered as part of exhibit A2. Mr Cawley has been on wine tours in Australia which were paid for and arranged by Bangkok Fine Wines. He said Bangkok Fine Wines had trained his staff, during which Mrs Glonek trained the staff in Thai, and that the business was involved in ongoing wine panels. He explained that Mr and Mrs Glonek use a map to illustrate where the wines come from and that while he deals with Mr Glonek in the main, his Thai manager deals with Mrs Glonek. In cross-examination, Mr Cawley said that Mr and Mrs Glonek were not involved in training or wine parties where wines that they did not supply were being promoted.
Kathy Lindsay
43. Ms Lindsay is currently the Communications Manager of the Business Council of Australia. From 1997 to 2001 she was a consultant to the Australia Thai Business Council in Bangkok. She gave evidence by telephone and confirmed that she met Mr and Mrs Glonek while she was living in Thailand. She said that Bangkok Fine Wines distributed wines to hotels and supermarket chains in Thailand.. Ms Lindsay told the Tribunal that the Australian Government sees the export of Australian wines to Thailand as a very important business and that prior to her involvement with the Australia Thai Business Council, Australia had implemented programs to promote Australian wine in the Thai wine market. She said that she had been involved with Bangkok Fine Wines in the course of Australian Chamber of Commerce functions. In cross-examination, Ms Lindsay said that to her knowledge Bangkok Fine Wines only promoted Australian wines at these functions, and that they only promoted wines which were sold by them.
Other Evidence
44. The applicant also supplied letters from the following persons, which were tendered as part of exhibit A2.
1.Peter Prendiville, owner of Sandalford Wines, Western Australia, undated.
2.Edward Thompson, Chef, Food and Beverage Manager of Marriot Resort and Spa, dated 11 May 2003.
3.Winifred Hanche, Food and Beverage Operations Manager of Central Hotels and Resorts, dated 12 May 2003.
4.John Angove, Managing Director of Angove’s Winemakers and Distillers, dated 15 May 2003 (see paragraph 40 above).
5.Douglas B Harrison, Managing Director and owner of Texxan Co. Ltd, dated 12 May 2003.
6.Cavan Hogue, past Australian Ambassador to Thailand (1994-1997), dated 13 May 2003 (unsigned).
7.David Wong, Director of Food and Beverage of Sheraton Grande Laguna, Phuket, dated 13 May 2003.
8.David Good, Group Director of Operations of Central Hotels and Resorts, dated 13 May 2003.
9.Mark Cawley, Director of Food and Beverage of JW Marriot Hotel, Bangkok, dated 14 May 2003 (see paragraph 42 above).
10.Dana Caron, Director of Food and Beverage of Bangkok International Trade and Exhibition Centre (BITEC), President of the Food and Beverage Association Thailand (FBAT), Chairman of AmCham Travel and Tourism Committee and Vice President of Trade and Exhibition Association (Thai) (TEA), dated 19 May 2003.
11.WN Fisher, Australian Ambassador to Thailand (1997-2000), dated 19 May 2003.
12.Linda Bowes, Chief Executive of the SA Wine and Brandy Industry Association, dated 20 May 2003.
13.Elizabeth L. Creese, Orchestra Resources Manager of the Melbourne Symphony Orchestra (relevant to Mr Glonek only).
14.Peter K. Narroway, Administrator of the State Orchestra of Victoria, dated 15 June 1988 (relevant to Mr Glonek only).
15.Neil Paulett, Winemaker Manager of Paulett Wines, South Australia, dated July 2003 (see paragraph 38 above).
16.Alister Purbrick, Managing Director of Tahbilk Wineyard Vineyard, dated 24 April 2003.
45. Relevantly, Mr Prendiville refers to how impressed he is by the professionalism and diligence of the Gloneks and the fact that the Gloneks have been joint sponsors at numerous press, tasting and dinner events at their own cost. He confirms that Bangkok Fine Wines has funded visits by numerous people involved in the Thai hospitality industry and that doing so assisted not only Bangkok Fine Wines, but also introduced valuable contacts to Sandalford Wines. Mr Prendiville also refers to Mrs Glonek’s excellent attributes as a marketer and administrator. Mr Purbrick refers to the value of Mrs Glonek’s good standing in the Thai community. Mr Thompson credits Bangkok Fine Wines with a doubling of his Australian wine sales, which now amount to 50% of the total amount of the wines he sells. He also refers to Mrs Glonek as an ambassador for Australia and attributes the strength and commitment of Bangkok Fine Wines to Australian wine to her. Messrs Hanche, Wong, Good and Harrison refer to the value of Bangkok Fine Wines training and tasting events and to their practice of sending customer representatives on promotional tours in Australia. Mr Hogue attests to the important contribution of Mr and Mrs Glonek towards the expansion of the wine market and the promotion of Australian wine in Thailand, and the value of the enterprise to Australia in general.
46. At the request of the applicant, the Tribunal attempted to contact Mr Peter Prendiville and Mr Winifred Hanche so that they could give evidence by telephone, but they were not available when called.
Consideration of Issues Arising
47. It is common ground that the applicant is a permanent resident, in that she holds a resident return visa sub-class 115 expiring on 3 August 2005 (T6, p62). As such, the applicant has the right to enter, leave or stay in Australia at will until the expiration of her visa. The grant of Australian citizenship would, however, confer on the applicant certain further rights, including the right to apply for an Australian passport, the right to vote in Government elections, the right to apply for any public office or stand for election as a member of Parliament, the right to apply for certain Government positions and the right to register any children born overseas as Australian citizens. She would also have the right to claim the protection of Australian diplomats while overseas.
48. As mentioned above, the applicant has not satisfied the criteria referred to in s 13(1)(d) and (e) of the Act. In the last two years prior to furnishing the application, she has been present in Australia for periods amounting in aggregate to only 12 days. In the last five years preceding the date of her application, she has been present in Australia as a permanent resident for periods amounting in aggregate to only 255 days. However, under s 13(4)(b)(i), there is a discretion to treat a period during which the applicant was a permanent resident and was not resident in Australia and was engaged in activities considered “beneficial to the interests of Australia” as a period during which the applicant was present in Australia as a permanent resident.
49. Counsel for the applicant, Ms McGrath, submitted that during the applicant’s time in Thailand over the last five years she was engaged in activities which should be considered beneficial to the interests of Australia, and so this period should be treated as a period during which the applicant was present in Australia as a permanent resident. In support of this submission, Ms McGrath referred to the extent of the activities undertaken by the applicant personally, and contended that the applicant had played a most active and essential role in Bangkok Fine Wines and in the sale and promotion of Australian wine in Thailand. She referred to the applicant’s activities from a management, strategic, financial, marketing, promotion and training perspective, as well as her role in negotiating contracts with Thai suppliers. Counsel further referred to the applicant’s attendance at various functions and events, and the importance of those in promoting awareness in sales of Australian wine. She referred, in particular, to the Australian Chamber of Commerce, the Australia-Thai Chamber of Commerce and the American Chamber of Commerce functions. She submitted further that it was proper for the Tribunal to take into account the activities of Bangkok Fine Wines itself because of the applicant’s key role in that business. She referred to the role which the applicant and (through her involvement) Bangkok Fine Wines had played in raising the profile of Australian wine in Thailand. This meant that Bangkok Fine Wines was a vehicle for introducing smaller wineries in Australia to the Thai market, and because of their limited resources, such wineries would not otherwise have been able to gain access to this market. Counsel pointed out that Mr Glonek had acknowledged that without the applicant's assistance he would not have lasted very long at all in his endeavours to market and distribute Australian wine in Thailand. Counsel further referred to the provision by Bangkok Fine Wines of Australian wine at various events in Bangkok and to its promotion in supermarkets, and to the applicant’s roles of employing and training staff and liaising with hotels.
50. Ms McGrath also made reference to Mrs Glonek’s understanding of Thai culture as a native Thai person, her ability to speak the Thai language, her understanding of the business culture in Thailand, and the assistance she had provided in developing personal relationships that were established to the benefit of the market in Thailand for Australian wine. Ms McGrath submitted that these matters constituted activities of the applicant personally in the development of an export market for Australian wine in Thailand, and that the fact that Mr Glonek and Bangkok Fine Wines also engaged in such activities did not detract from her role. Ms McGrath accordingly submitted that the applicant’s activities were beneficial to the interests of Australia, and that the period in which she engaged in these activities should be treated as a period during which she was present in Australia as a permanent resident so as to satisfy the residence requirements of s 13(1)(d) and (e).
51. Ms McGrath also referred to the analysis of relevant decisions set out in the decision of Senior Member Sassella in Re Taechaubol and Minister for Immigration and Multicultural Affairs [2001] AATA 425 at paragraph 138. This very useful summary incorporates reference to various principles which emerge from the large number of decisions analysed by the Senior Member earlier in his decision, and also includes a brief reference to some of the facts of the various matters referred to. Ms McGrath also referred to the following decisions as examples of matters where the “residence waiver” provisions were involved notwithstanding that the applicant was not resident in Australia at the relevant time:
Kim and Minister for Immigration and Ethnic Affairs [2002] AATA 102
Needham and Minister for Immigration & Multicultural & Indigenous Affairs [2003] AATA 276
Li and Department of Immigration and Multicultural Affairs [1999] AATA 897
Ming Nan Kao and Minister for Immigration and Ethnic Affairs (1993) 30 ALD 916
Lan and Minister for Immigration and Multicultural Affairs [2001] AATA 362
Ahi Min Wang and Department of Immigration and Multicultural Affairs (AAT No 12747, 6 March 1998)
She submitted that on these authorities, it was not appropriate in the present matter to apply the stipulation in clause 4.3.20 of the Instructions to the effect that the discretion in s 13(4)(b)(i) would normally not be exercised where the applicant is overseas.
52. I now turn to the submissions of counsel for the respondent, Mr Fell. He first referred to the relevance of the Instructions to achieving a uniform approach to decision making in these matters unless the application of the relevant policy would produce substantial injustice in a particular case, and relied upon the decision of Brennan J in Re Drake and Minister for Immigration and Ethnic Affairs (No. 2) (1979) 2 ALD 634. His Honour said (at page 645):
“When the Tribunal 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, but cogent reasons will have to be shown against its application, especially if the policy is shown to have been exposed to parliamentary scrutiny.
The general practice of the Tribunal will not preclude the Tribunal from making appropriate observations on ministerial policy, and thus contributing the benefit of its experience to the growth or modification of general policy; but the practice is intended to leave to the Minister the political responsibility for broad policy, to permit the Tribunal to function as an adjudicative tribunal rather than as a political policy-maker, and to facilitate the making of consistent decisions in the exercise of the same discretionary power.
The general practice will require the Tribunal to determine whether the policy is lawful, not in order to supervise the exercise by the Minister of his discretion, but in order to determine whether the policy is appropriate for application by the Tribunal in making its own decision on review.”
53. In a similar vein in Re Dainty and Minister for Immigration and Ethnic Affairs (1987) 6 AAR 259 at 266, Davies J stated:
“I accept that, in the exercise to (sic) discretions under the Australian Citizenship Act 1948, the Tribunal ought generally to apply guidelines or policies which have been established by the Minister of State for Immigration and Ethnic Affairs. Such policies can only be adopted by the minister. He has the experience and advice and the power to formulate such policies and he is able to take responsibility in Parliament should the policies be found wanting.
But to say that, is not to say that the tribunal ought to treat policy as more than policy. Policy is not a legislative prescription and, though it many cases it will be appropriate to apply policy in all or almost every case, there are circumstances where it is not appropriate to decide a matter merely by reference to a policy which has been laid down."
54. I also refer to Drake v Minister for Immigration and Multicultural Affairs (1979) 2 ALD 60 where Bowen CJ and Dean J emphasised the need to examine the merits of the individual case under consideration. Their Honours said (at page 70):
“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.”
55. Similar guidance is afforded by Re Aston and Secretary, Department of Primary Industry (1985) 8 ALD 366 at 375-8, and I refer in particular to the following passage (at page 376):
“Policy is not law. A statement of policy is not a prescription of binding criteria. By conferring a discretion upon the decision-maker, the law requires that all matters relevant to the exercise of the discretion shall be taken into account.”
56. It has not been suggested by either party that any of the sections of the Instructions which are relevant to the present matter are invalid, and I can see no basis for any such contention. In accordance with the principles referred to in the cases cited above, I will use the Instructions as a guide to reaching the correct or preferable decision unless there are cogent reasons not to do so, such as the production of an unjust result in the circumstances of this matter. Further, I will not regard the Instructions as a fetter on the range of circumstances which may be taken into account as relevant to this matter, or as a fetter on the exercise of the discretions conferred by s 13 of the Act.
57. After referring in general terms to the relevance of the Instructions, counsel for the respondent then drew attention to clause 4.3.17 of the Instructions which relate to the exercise of the “residence discretion” under s 13(4)(b)(i). He next referred to clause 4.3.18 of the Instructions which reads:
“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.”
58. As to this, counsel referred to Minister for Immigration, Local Government and Ethnic Affairs v Roberts (1993) 41 FCR 82 at 87, 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 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.”
59. Mr Fell also emphasised the word “personally” in the extract from clause 4.3.18 set out above. He said that the Tribunal was required to consider the applicant’s activities, and not the activities of her husband. He pointed out that in a number of instances, the material presented to the Tribunal referred to the activities only of Mr Glonek, and not the applicant. Counsel further submitted that the bulk of the promotional work was done by Mr Glonek, and if any of the activities qualified as activities beneficial to the interests of Australia, it was the work which he did.
60. Counsel for the respondent next referred to clause 4.3.20 of the Instructions, which provides: “If the applicant is overseas, the discretion will normally not be exercised”, and submitted that this clause should be applied, and would not result in substantial injustice. I note in this regard that clauses 4.3.19 and 4.3.28 also contemplate that the applicant will be resident in Australia.
61. Counsel then referred to clause 4.2.26 of the Instructions, which reads as follows:
“4.3.26 In 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 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 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).”
He submitted that Mrs Glonek’s activities served her own private interests, and those of Bangkok Fine Wines, and this was not sufficient to satisfy the requirements of s 13(4)(b)(i)(C). He also referred to the evidence to the effect that on occasions, Bangkok Fine Wines also promoted wine which was imported into Thailand from countries other than Australia.
62. Mr Fell next referred to clause 4.3.30 of the Instructions. This reads as follows:
“4.3.30 Relevant considerations for applicants who are self-employed may include:
-employment of Australian citizens or permanent residents;
-payment of significant taxes;
-generation of revenue from exporting Australian products;
-production of goods which replace imports;
-advancement of Australian technology.”
He submitted that the only one of the above considerations which was relevant in the present matter was the generation of revenue from exporting Australian products. However, the activities of Bangkok Fine Wines, on the evidence, only accounted for some 7% of the Australian exports of wine to Thailand, and the applicant did not satisfy any of the other considerations.
63. Counsel for the respondent next submitted that in any event, on the approach of Deputy President McMahon in Re Ho and Minister for Immigration and Ethnic Affairs (1994) 34 ALD 664 (to which I will refer later), it was necessary for the Tribunal to consider as a matter of discretion, whether or not the residence requirements should be waived. He pointed out that except for short term visits over the last nine years, the applicant has not worked or lived in Australia, except for a period of approximately six months, and she has elected of her own free volition not to do so. He submitted that whilst Mr and Mrs Glonek hoped that the business of Bangkok Fine Wines would mature to the point where their involvement in Thailand would not be necessary and other people could carry the business on there, enabling Mr and Mrs Glonek to return to Australia to live, the Tribunal could not find on the evidence that this was likely to occur in the foreseeable future, and there was no likelihood of the applicant coming to Australia to live permanently in the near future. He submitted that there would be nothing to stop the applicant making a new application for citizenship at an appropriate later time, but that the Tribunal should not at this stage exercise its discretion in favour of the applicant under s 13(4)(b)(i), because the evidence did not indicate that there were exceptional circumstances justifying the Tribunal departing from the policy contained in the Instructions.
64. In answer to the submissions of Ms McGrath referred to in paragraph 51 above, counsel for the respondent referred to the following decisions, which were adverse to the applicants on the issue of whether the applicants’ activities were beneficial to the interests of Australia.
Re Ho and Minister for Immigration and Ethnic Affairs (supra)
Tang and Minister for Immigration & Multicultural & Indigenous Affairs [2003] AATA 756
Minister for Immigration, Local Government and Ethnic Affairs v Roberts (supra).
Findings and Conclusions
65. I have read the reasons for decision in each of the matters referred to in paragraphs 51 and 64. Clearly, s 13 of the Act contemplates that Australian citizenship can be granted to an applicant who is not resident in Australia (see s 13(1)(j) and s 13(1A)), but this does not mean that the decision-maker should not have regard to all relevant factors when exercising the discretion to waive the residence requirements of s 13(1). As counsel for the applicant said in her written submissions, cases involving a consideration of the “residence waiver” provisions entail differing fact situations, in terms of the applicant’s previous residence in Australia, the strength of the applicant’s ties with Australia, and the nature of the applicant’s offshore activities. For this reason, and because decisions on the relevant provisions also involve a determination of whether or not it is appropriate to exercise the discretion conferred by s 13(4)(b)(i) (thus entailing the decision-maker’s weighing up the relative importance of a wide range of factors which differ from one matter to another), I do not regard any of the examples referred to by either counsel as determinative of the present matter. However, I make the general observation that those cases where the “residence waiver” provisions were applied are distinguishable from the present matter because the applicants’ connections with Australia were stronger than those of Mrs Glonek as a result of one or more of a number of factors, namely the length of time for which applicants had lived in Australia prior to engaging in activities overseas, the residence in Australia on a permanent basis of spouses and/or children, the ownership of property in Australia, the carrying on in Australia by the applicants of Australian businesses involving the payment of taxation in Australia or the employment of persons in Australia, the significance of export earnings from Australia attributable to the applicants’ activities, or a more definite or imminent intention to return to Australia to live at the conclusion of overseas work activities.
66. I accept the evidence of the applicant and all of the evidence of the witnesses called by the applicant, and find that the relevant facts are as recounted in paragraphs 5, 6 and 13 to 46 above. I note that there is much more ample evidence before the Tribunal in relation to the activities of the applicant than was available to the original decision-maker in this matter.
67. On reviewing the evidence before me, I accept the submissions of counsel for the applicant in preference to those of counsel for the respondent as to the extent of Mrs Glonek’s role in promoting the export of Australian wine in Thailand, and as to the essential part she personally plays in the activities of Bangkok Fine Wines. While Mr Glonek’s role appears to be equally important, he and his wife operate as a team, and I accept the assessment by Mr Glonek and also the other evidence and material produced by the applicant as to the significance of the applicant’s role in the promotion and marketing of Australian wines in Thailand. I further find that whilst the applicant’s activities no doubt also served her own private interests and those of Bangkok Fine Wines, they nevertheless facilitated the export of Australian wine to Thailand, particularly by smaller wineries, and I refer in this respect to the evidence of Messrs Angove and Paulett. I accordingly find that the applicant’s activities in Thailand have been beneficial to the interests of Australia, in that they have assisted in the promotion of the export of an important Australian product.
68. However, whilst the conditions precedent to the exercise of the discretion conferred by s 13(4)(b)(i) have therefore been satisfied, the question remains as to whether, in the exercise of the Tribunal’s discretion, the relevant period during which the applicant has been engaged in activities beneficial to the interests of Australia should be treated as a period during which the applicant was present in Australia as a permanent resident, so as to excuse the applicant from compliance with s 13(1)(d) and s 13(1)(e). In Re Ho and Minister for Immigration and Ethnic Affairs (above), Deputy President McMahon said (at page 671):
“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.”
69. On my above findings, the criteria referred to in s 13(4)(b)(i) have been fulfilled in that the applicant has been engaged overseas in activities of an economic nature which are beneficial to the interest of Australia. Further, as required by clause 4.3.19 of the Instructions, these activities have been widely recognised as such by prominent persons associated with the applicant’s field of endeavour (see paragraphs 38-45 above). However, as mentioned above, the Instructions provide that the discretion will not normally be exercised if the applicant is overseas. On the authorities to which I have referred, it is necessary to consider whether there are other circumstances which make it appropriate for the Tribunal to exercise its discretion in favour of the applicant notwithstanding that she is resident overseas. In this regard, the following matters are, I think, pertinent.
(a)The applicant and her husband have a strong marriage, and also work very closely together. She has a good and close relationship with her husband’s family in Australia, and keeps closely in touch with them. She has kept in contact with a number of friends in Australia, and has a very strong regard for Australia and the lifestyle in Australia.
(b)She has satisfied the conditions precedent to the exercise of discretion, including the requirement to have engaged in activities beneficial to the interests of Australia during her period of residence outside Australia.
(c)As against the above matters, however, the applicant has spent little time in Australia since 1994. As mentioned above, over the five years preceding her application, she has only spent 255 days in Australia and over the two years preceding her application, she has only spent 12 days in Australia.
(d)Further, the applicant has not satisfied four of the five examples of relevant considerations set out in clause 4.3.30 of the Instructions (see paragraph 62 above).
(e)The applicant does not own property or own or carry on any business in Australia.
(f)Although, in my opinion the applicant’s activities were in the beneficial interests of Australia during the relevant periods, the extent to which Bangkok Fine Wines has developed the market in Thailand for Australian wines is not very significant, in that Bangkok Fine Wines only enjoys 7% of the market in Thailand. The total Thai export market is also insignificant when compared with the total export market for Australian wine (see exhibit R1).
(g)The applicant has held a permanent resident visa since 12 May 1992, and her visa is current until 3 August 2005. Under this visa, the applicant is free to travel to and from Australia as she pleases, and to stay in Australia at will. In my opinion, she will not suffer any undue hardship, and no injustice will result, if her application is not granted at this time. I refer further to the issue of hardship in paragraphs 73 and 74 below.
(h)Whilst the applicant and her husband wish to return to Australia in the future to live, they are not in a position to do so now because their continued presence in Thailand is essential to the successful operation of Bangkok Fine Wines. They are endeavouring to establish their business to a mature position where their staff can carry the business on and the products they distribute will have developed and established a reputation and mature market, so that the business can then be run by employees of the company based in Thailand, but that position has not yet been reached. I further find on the evidence before me that that position will not be reached in the reasonably near future. It is accordingly not likely that the applicant will reside in Australia for some time yet.
Having regard to the above matters, I consider on balance that there is no cogent reason not to apply the Instructions, and that it is not appropriate in the present matter for the Tribunal to exercise its discretion to treat the period during which Mrs Glonek was engaged in her marketing and promotional activities in Thailand as a period during which she was present in Australia as a permanent resident.
70. It is next necessary to consider whether Australian citizenship should be granted to the applicant under s 13(9)(c) of the Act, that is because the applicant who is a permanent resident is the spouse of an Australian citizen. In this regard, it was pointed out by Gray J in Re Lee and Department of Immigration and Ethnic Affairs (1988) 10 AAR 270 at 275 that the discretion conferred by s 13(9)(c) of the Act is an independent and unfettered discretion, although some of the considerations expressed elsewhere in s 13 may properly be taken into account in the exercise of that discretion.
71. Clause 4.5 of the Instructions relates to the exercise of discretion under s 13(9)(c). In applying the Instructions in relation to s 13(9)(c), I am again mindful of the principles referred to in paragraphs 52 to 56 above, and I will approach the exercise of this further discretion in accordance with those principles. Clause 4.5.2 relevantly provides as follows:
“4.5.2 Applicants are usually required to meet all of the following requirements:
· the applicant is a permanent resident;
· the parties are living together as husband and wife unless …
· the applicant is of good character (see chapter 5);
·if the applicant is overseas, he/she intends to travel to Australia to live with the Australian citizen spouse;
·the applicant is likely, if granted a certificate of Australian citizenship, to reside, or to continue to reside, in Australia, or to maintain a close and continuing association with Australia (see 4.2.18 - 4.2.20);
·the applicant has a basic knowledge of the English language and an adequate knowledge of the responsibilities and privileges of citizenship, unless …
·the applicant has been present in Australia as a permanent resident for at least 2 years in the five years immediately before the application, at least 12 months of which must have been within the 2 years immediately prior to that date unless:
-the applicant has lived in Australia as a lawful permanent resident for one year and would otherwise suffer significant hardship or disadvantage (see 4.3.33 for guidance on hardship or disadvantage).”
72. Because the applicant has not fulfilled the residential requirement in respect of the periods of five years and two years immediately prior to lodging her application, it is necessary to consider whether she can be excused from this requirement on the grounds that she would suffer significant hardship or disadvantage. Clause 5.2.2 contains a cross-reference to clause 4.3.33 of the Instructions, which provides relevantly as follows:
“4.3.33 As a matter of policy, this discretion would usually only be exercised in one of the following situations of hardship or disadvantage:
· the applicant can demonstrate that he/she has 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 him/her;
· the applicant would be excluded from travelling internationally because he/she cannot obtain a passport or because he/she is 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 …”.
This part of the Instructions refers to s 13(4)(b)(ii) of the Act, and is not relevant to applications for citizenship on the basis of marriage to an Australian citizen. I think that wider considerations would be relevant when considering spousal applications. Another difference between the two clauses is that clause 4.5.2 refers to “significant” hardship or disadvantage, but this additional qualification does not apply to clause 4.3.33. In other contexts, the word “significant” has been interpreted as “important”, “notable”, “of consequence” (see McVeigh v Willara Pty Ltd (1984) 6 FCR 587 at 596, where the issue related to evaluating the “significant Australian content” of a film), “important”, “notable”, “weighty” or “more than ordinary” (see Bailey v Forestry Commission of New South Wales (1989) 67 LGRA 200 where the issue was whether an activity was likely to significantly affect the environment). I refer also to the further authorities summarised in Re Trusswell and Minister for Communications and the Arts (1996) 42 ALD 275 at 294-295. The use of the adjective “significant” clarifies the concept dealt with by clause 4.5.2 of the Instructions, because the word “hardship” is itself a relative term (see Man Ki Kim v Minister for Immigration and Ethnic Affairs (1995) 37 ALD 481 at 487) as is the word “disadvantage”.
73. Counsel for the applicant referred to the difficulties which arise from the applicant’s inability under Thai law to hold property. However, the applicant has apparently overcome this difficulty by not registering her marriage in Thailand, and in any event there is no evidence before the Tribunal that any inability to own property in Thailand in itself is or has been a hardship to the applicant. It appears also that some relief is available if the consent of the relevant Minister is obtained (although it is not clear whether this would assist Mrs Glonek or only Mr Glonek - see paragraph 35 above).
74. It was further contended on behalf of the applicant that as an Australian citizen, the applicant would be able to travel more readily and be better protected from risks affecting persons overseas resulting in particular from terrorist activities. Having regard to the applicant’s position as the spouse of an Australian citizen, it seems likely that she would be in a position through him to receive travel advisories or advice of other security risks, and that she would receive the benefit of any priority travel arrangements which might be afforded to Australian citizens in the event of some emergency in Thailand or elsewhere. There was no evidence to the contrary, or to support the applicant’s concerns. In my opinion, the applicant’s concerns either separately or in combination do not constitute hardship or disadvantage as contemplated by clauses 4.3.33 or 4.5.2 of the Instructions. Further, the applicant is able to travel to and from Australia and to stay in Australia during the currency of her permanent resident visa, and apart from the matters already referred to no other relevant hardship or disadvantage has been suggested because she is unable to exercise the rights or privileges of Australian citizenship. I accordingly find that the applicant would not suffer significant hardship or disadvantage so as to be excused from the relevant requirement of the Instructions.
75. The applicant accordingly does not, in my view, meet all of the requirements of clause 4.5.2 of the Instructions. In considering whether the application of this aspect of the Instructions would produce an unjust result in the circumstances of this matter, I also have taken into account other matters relevant to the exercise of discretion under s 13(1) of the Act, as set out in paragraph 69 above. After having regard to those matters, including in particular the matters referred to in paragraphs 69(a) and (b), but balancing against those matters the fact that Mrs Glonek is not resident in Australia, as well as the absence of an intention to reside in Australia in the reasonably near future, the short duration of the time she has been in Australia over the last five years and also the fact that she has no close relatives in Australia apart from her husband’s relatives, and the lack of any significant hardship or disadvantage if her application for Australian citizenship is refused, I consider that there is no cogent reason not to apply the Instructions, and that it is not appropriate in this matter for the Tribunal to exercise its discretion in favour of the applicant under s 13(9)(c).
76. I have also considered the criterion referred to in s 13(1)(j) of the Act, even though on my above determinations this criterion is not relevant. The applicant does not satisfy the first part of this criterion, because she is not likely to reside or to continue to reside in Australia, at least in the near future, and I refer to my above findings in this regard. However, I consider that the applicant satisfies the second aspect of this criterion, in that she is likely to maintain a close and continuing association with Australia, for the reasons referred to in paragraph 69(a) above, and because she is so directly involved in a business involving Australian suppliers. I am mindful that this issue is also relevant to the exercise of the discretions conferred by s 13(4)(b)(i) and s 13(9)(c), but I do not think that a finding in the applicant’s favour on this aspect of s 13(1)(j) is determinative of whether or not the discretion should be exercised under those other sub-sections, even where the requirements of sub-paragraphs (A), (B) and (C) of s 13(4)(b)(i) have been found to exist. I consider that the maintenance of a close and continuing association with Australia, whilst relevant to the exercise of the above discretions, has to be considered in conjunction with the Instructions, and also weighed with other relevant factors which I have identified in paragraphs 69 and 75 above.
77. Finally, for the sake of completeness, I consider that the Tribunal would not be precluded by s 13(1A) of the Act from granting Australian citizenship to the applicant, because the applicant is a permanent resident, and I consider that she is engaged in activities outside Australia that are beneficial to the interests of Australia. I again refer in this regard to my findings in paragraph 67 above. These findings are directed not to the time when citizenship might have been granted to the applicant but to a different period of time, namely the period of two years and five years respectively immediately preceding the application for citizenship, but it appears from the evidence before me that the applicant continues to be engaged in activities outside of Australia which are beneficial to the interests of Australia, and intends to continue to do so. Whilst the application is not therefore foreclosed by s 13(1A), it does not, of course, follow that the discretions conferred by other parts of s 13 should therefore be exercised in favour of the applicant.
78. Whilst I have decided that in the present circumstances it is not appropriate to exercise the Tribunal’s discretion in favour of the applicant, I hope that these reasons for decision will be of assistance in the determination of any future application for citizenship if the applicant’s circumstances change. In my opinion, if the applicant continues to engage in the activities in which she is currently engaged in developing the export of Australian wine to Thailand and if, as Mr and Mrs Glonek hope, the business of Bangkok Fine Wines matures to the point where they will be able to live in Australia, the applicant will have a strong case for the exercise of discretion in her favour pursuant to s 13(4)(b)(i) if she applies at that stage for Australian citizenship, notwithstanding that she may not satisfy the residence requirements of s 13(1)(d) and (e). Alternatively, if (as counsel suggested could be the case) the applicant encounters difficulty in obtaining a renewal of her current visa when it expires on 3 August 2005, the applicant may be able to demonstrate at that stage that she would suffer significant hardship or disadvantage within the meaning of the final paragraph of clause 4.5.2 of the Instructions, depending, however, on whether she can obtain any other suitable visa which would enable her to visit Australia with her husband in order to maintain her close association with her husband’s family and her friends in Australia, and in order to continue to carry out her activities in relation to the promotion of Australian wine.
79. For the above reasons the decision under review is affirmed.
I certify that the 79 preceding paragraphs are
a true copy of the reasons for the decision herein
of Deputy President D G JarvisSigned: .......................................................................................
N Quirke AssociateDate/s of Hearing 14 and 15 August 2003
Date of Decision 8 December 2003
Counsel for the Applicant Ms J McGrath
Solicitor for the Applicant McDonald Steed Lawyers
Advocate for the Respondent Mr T Fell
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