Grylls and Department of Immigration and Citizenship
[2007] AATA 2085
•21 December 2007
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2007] AATA 2085
ADMINISTRATIVE APPEALS TRIBUNAL )
) No S 200700052
GENERAL ADMINISTRATIVE DIVISION ) Re JEVAN MARTYN GRYLLS Applicant
And
DEPARTMENT OF IMMIGRATION & CITIZENSHIP
Respondent
DECISION
Tribunal Senior Member R W Dunne Date21 December 2007
PlaceAdelaide
Decision The Tribunal sets aside the decision under review and substitutes a decision that the applicant’s application for Australian citizenship be granted.
..............................................
R W DUNNE
(Senior Member)
CATCHWORDS
IMMIGRATION & CITIZENSHIP – grant of Australian citizenship – presence in Australia as a permanent resident – engaged in activities beneficial to the interests of Australia – exercise of discretion to treat period outside Australia as presence in Australia – decision set aside
Australian Citizenship Act 1948 ss 13(1)(d), (e), (1A), (4)(b)
Australian Citizenship (Transitions and Consequentials) Act 2007, Items 10 and 12 of Part 1 of Schedule 3, Item 42 of Part 2 of Schedule 1
Acts Interpretation Act 1901 s 8
Australian Citizenship Act 2007
Esber v the Commonwealth of Australia and Anor (1992) 174 CLR 430
Dai Xing Yao v Minister for Minister for Immigration and Ethnic Affairs (1996) 69 FCR 583
Minister for Immigration, Local Government and Ethnic Affairs v Roberts (1993) 29 ALD 656
Re Pai and Minister for Immigration and Ethnic Affairs (1994) 35 ALD 762
Re Ho and Minister for Immigration and Ethnic Affairs (1994) 34 ALD 664REASONS FOR DECISION
21 December 2007 Senior Member R W Dunne 1. On 14 February 2007 a delegate of the Minister for Immigration and Citizenship (“respondent”) determined that Mr Jevan Grylls (“applicant”) did not meet the residency requirements for a grant of citizenship. He had not completed an aggregate period of 2 years permanent residence in Australia in the 5 years immediately prior to the lodgement of his application, as required by s 13(1)(e) of the Australian Citizenship Act 1948 (“Act”). The discretion available to the respondent in s 13(4)(b) of the Act was not exercised in the applicant’s favour. On 27 February 2007 the applicant applied to this Tribunal for a review of the respondent’s decision.
2. At the hearing, Mr Grylls appeared on his own behalf and Mr Paul d’Assumpcao appeared on behalf of the respondent. The Tribunal received into evidence the T documents (Exhibit R1) lodged pursuant to s 37 of the Administrative Appeals Tribunal Act 1975.
issues for the tribunal
3. The issues for the Tribunal are:
·whether the applicant was 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 his application for grant of Australian citizenship;
·whether the applicant was not present in Australia as a permanent resident and was engaged in activities beneficial to the interests of Australia, such that the discretion allowed in s 13(4)(b)(i) of the Act should be exercised in his favour.
legislation and citizenship instructions
4. The Australian Citizenship Instructions (“Citizenship Instructions”) provide policy guidance to departmental officers who undertake duties in connection with the Act, including the exercise of the discretion available to the respondent pursuant to s 13(4)(b).
5. The provisions of the Act that relevantly apply to the issues before the Tribunal are as follows:
“13 Grant of Australian citizenship
(1)Subject to this section, the Minister may, in the Minister's discretion, upon application in accordance with the approved form, grant a certificate of Australian citizenship to a person who satisfies the Minister that:
…
(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;
…
(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.
…
(4) For the purposes of the application of subsection (1) in relation to an applicant for the grant of a certificate of Australian citizenship:
…
(b) subject to paragraph (a), the Minister may, in the Minister's discretion:
(i) treat a period during which the applicant:
(A)was a permanent resident;
(B) was not present in Australia; and
(C) was engaged in activities that the Minister considers beneficial to the interests of Australia;
as a period during which the applicant was present in Australia as a permanent resident;
…”
6. The Citizenship Instructions that are relevant to this application are:
“4.3 THE RESIDENCE REQUIREMENTS IN S 13(1)
…
(d) Discretions applying to the residence requirements (s 13(4)(b))
…
Residence discretion: Residence outside Australia (s 13(4)(b)(i)
4.3.19Periods during which the applicant was a permanent resident and was outside Australia engaged in activities beneficial to the interests of Australia may be counted towards the residence requirements. This discretion applies to both residence requirements (ie, both ‘2 years in the last 5’ and ‘1 year in the last 2’).
4.3.20 The legislation is interpreted as requiring the following:
· the applicant must have been a permanent resident (see 1.4) during any of the periods counted;
· the periods spent outside Australia to be counted must be:
- within the last 5 years for the 2 years in the last 5 years requirement; and
- within the last 2 years for the 1 year in the last 2 years requirement;
· the applicant must have been personally engaged in activities overseas beneficial to the interests of Australia, not just, for example, the company or organisation for which the applicant worked;
· the applicant must have been engaged in a series of activities, not just a one-off transaction;
· the activities must also be during the relevant period/s under consideration;
· the activities must have been ‘beneficial to the interests of Australia’ during the relevant period/s. It is not intended that the provision apply where there are no current benefits irrespective of whether benefits may accrue in the future.
4.3.21Under Ministerial policy, the discretion will usually only be exercised if the applicant is in Australia and was either:
· required to work overseas by a Federal, State or Territory Department, semi-government authority or private employer; or
· self-employed and frequent travel abroad was essential to the successful operation of their business, whether for an extended period or on a regular short-term basis; or
· engaged overseas in activities of a social, cultural, economic or political nature which are clearly beneficial to the interests of Australia and are widely recognised as such either by:
- the Australian community generally; or
- prominent persons associated with the applicant’s field of endeavour (for example, people engaged in aid programs, artists and entertainers of world standing).
…
4.3.26In 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).”
7. In considering the provisions of the Act, the following provisions of the Australian Citizenship (Transitions and Consequentials) Act 2007 (Items 10 and 12 of Part 1 of Schedule 3 and Item 42 of Part 2 of Schedule 1) and the Acts Interpretation Act 1901 are necessarily relevant:
Australian Citizenship (Transitions and Consequentials) Act 2007
Items 10 and 12
“10 Review of decisions made under the old Act
Despite the repeal of the old Act made by item 42 of Schedule 1, section 52A of the old Act continues to apply in relation to a decision made under that Act, as it that repeal had not been made.
…
12 Section 8 of the Acts Interpretation Act 1901
This Part does not limit the operation of section 8 of the Acts Interpretation Act 1901 in relation to the repeal of the old Act.
…”
Item 42
“Australian Citizenship Act 1948
42 The whole of the Act
Repeal the Act.”
Acts Interpretation Act 1901
“8. Effect of repeal
Where an Act repeals in the whole or in part a former Act, then unless the contrary intention appears the repeal shall not:
…
(c)affect any right privilege obligation or liability acquired accrued or incurred under any Act so repealed; or
…
(e)affect any investigation legal proceeding or remedy in respect of any such right privilege obligation liability penalty forfeiture or punishment as aforesaid;
and any such investigation legal proceeding or remedy may be instituted continued or enforced, and any such penalty forfeiture or punishment may be imposed, as if the repealing Act had not been passed.”
background and evidence of applicant
8. The background facts were introduced by Mr d’Assumpcao in his opening and were not disputed. Mr Grylls is a citizen of the United Kingdom and Canada. On 15 June 2004 he was granted an Employer Nomination (Migrant) (Class AN) subclass 121 permanent visa which permitted him to travel to and enter Australia for a period of 5 years from the date of grant. On 16 September 2004 he arrived in Australia as a permanent resident and, since then, has frequently travelled overseas for extended periods. On or about 28 September 2006 the respondent received the applicant’s application for citizenship and, shortly thereafter, a letter in support of an application for an exemption to the residence requirements pursuant to s 13(4)(b)(i) of the Act. Annexed to the letter was a table of the applicant’s movement details, and a letter from his employer (Thermo Electron Corporation operating as Thermo Gamma-Metrics Pty Ltd and Thermo Ramsey Pty Ltd) was also provided in support of the application for citizenship. The employer’s letter (Exhibit R1, T6 at page 49) reads:
“Jevan Grylls is and has been employed by the Thermo Electron Corporation (operating as Thermo Gamma-Metrics Pty Ltd) since his arrival in Australia in 2004. Prior to his transfer to Australia, Jevan was employed by this company, in a similar role, in San Diego, California, USA.
Jevan is employed as a Customer Support Engineer and is involved in the installation, commissioning and servicing of Thermo products on a global basis. These products are manufactured here in Adelaide principally for the minerals, coal and cement industries. Consequently, his employment frequently takes him outside of Australia. The type of skills required to fill the role of Customer Support Engineer are in very short supply in Australia. The role that Jevan plays is critical to the successful on-going operations of this company which is the global market and technological leader for in-line analysers for the mining industry.
…”
9. In response to a request for further information about his absences from Australia, the applicant said (Exhibit R1, T12 at page 59):
“… I work as a ‘Customer Support Engineer’ and frequently travel to international destinations to commission (connect, calibrate, and train mining personnel) equipment (online X-ray analysers and particle size analysers) that is manufactured in Adelaide.
I fully intend on keeping Australia my home and in fact have purchased my residence in Henley Beach last June. I have included a photocopy for your information as well.
…”
10. The applicant has been with his present employer for 6 years, although during this time there have been several name changes. The employer is now called Thermo Fisher Scientific. His role in the past 6 years has been to work on different analysers that are used in the mining industry – servicing and commissioning and training people on-site in the use of the analysers. When asked about the specific analysers he worked on, he said:
“The equipment I have worked on is X-ray machines, particle size analysers, for which you use a different technology. Another one called a PGNA pro gamma neutron activation analysis and these analysers are quite specific. In fact the first company I worked for was involved in a lot of the technology so it is more or less, you know, current technology and consequently I am in demand for this role. When I go to a mine site it is not just a matter of making sure it is pointing correctly, there is an in depth component of ensuring that the machine works properly before I leave which I think is important in this decision – the actions I am doing are important for Australia and I think if this job that I have done, if it isn’t done correctly, then the job can’t be completed and in fact a lot of the financial money aspects depends on getting the machine up and running correctly for the party. So I know I saw in some of the reference – the reference to developing markets overseas and I think that is maybe, from what I deduce, may be a bit of a more accepted reason for going overseas and being out of Australia but if I could propose that part of that development, if my role isn’t done, then the consequences would be devastating for those markets.” (Transcript, pages 12-13)
11. Thermo Gamma Metrics was a company incorporated in Australia and was wholly owned by Thermo Fisher Scientific. The particle size analyser (or PSM400) analysed slurry (iron ore with water added) for its particle size, which was an important parameter for grinding in the mining industry. The PSM400 was designed and built in the United States until 3 years ago, when the technology was brought to Adelaide for manufacture. Part of the basis for the applicant’s immigration to Australia was his skill set and his knowledge of the PSM400, and the analyser had gone through a revision, in terms of its design, since its arrival in Australia. It was used by companies in Australia, but mostly in other countries, and was now in some 600 sites, world-wide. The PGNA (pro gamma neutron activation analyser) was also being manufactured in Adelaide and the applicant was involved in the operations of that equipment. Most of the analysers manufactured in Adelaide were exported, although a lot of the X-ray systems were used in Australia. The applicant’s role was to make sure the customer understood how the analyser worked and how to make it work, and this was why what he did was called installation and commissioning, as opposed to training or connection. He described his work in more detail when he said:
“… Arriving at a site, I might have to advise where to place the machine, what type of … you need to provide the machine in order for it to be representative. In terms of connecting to their computer system, you might have to look for a standard – talk to various people on their site. It’s a lot of interfacing with the personnel. Then there’s the training of the mechanical, electrical and metallurgical sides as well, so I suppose one of my points would be if – you know, if that role isn’t done, it’s a critical role to – you can’t just sell the machine and say, ‘Okay, that’s it’. You have to go to the site to make it work so it’s, like, part of, I guess, developing the international market because if that didn’t happen, then – you know, it’s a worldwide market. The mining industry can be perceived as small. The news carries fast, and you just couldn’t continue in this business, I don’t think.” (Transcript, page 15)
12. In cross-examination by Mr d’Assumpcao, Mr Grylls said that he no longer worked for Thermo Fisher Scientific, but had resigned in January 2007. He had set the record in the company’s history for the number of days away and he felt it was time to get more balance in his life. He had not worked since then, but had left the country visiting family and travelling on vacation. As a mining engineer, he could return to work for the same company or could choose to work at a mine site. When working overseas, he would often be away for months at a time, sometimes at the same site or at different sites on each occasion. When at a site, he would be installing the equipment and training mining personnel – engineers, mechanics and others. He said he was not directly involved in sales of the analysers, but understood when and what spare parts were needed. When based in Australia, approximately 10 or 15 percent of his time was involved in attending to sales of spare parts. Eighty-five to 90 percent of his time overseas was devoted to connecting, calibrating and training. He would often talk to the mine manager or the mine superintendent and give direct feedback on how the equipment was working. He would also have to make recommendations on the purchase of the equipment. However, when questioned further, he acknowledged that the predominant purpose of his travel overseas was to calibrate and to be there as a customer support engineer, as opposed to sales and recommendations for spare parts. He said he was a necessary component of his company employer. The customer would not pay for all the equipment until the installation was completed correctly and would hold back a proportion of the price until this was done. Although he was the only customer support engineer in Australia, there were others in South America and Mexico. When asked by Mr d’Assumpcao whether the analysers were more recognised as United States products than Australian products, he said:
“No, not with the rebranding. Most of the engineers that – for example, in Peru, where I worked in November/December, most recently, all the engineers – I was there – there were programmers from Australia too, so probably three or four engineers were Australian, and three or four new hires were from either Chile or Peru. So the perception, I think, is more Australian for this division because, really, there’s no manufacturing in the United States for this equipment. It’s all based here and all of the international calls eventually get funnelled back to Adelaide so, yes.” (Transcript, page 21)
13. Then, when asked by the Tribunal why his employer-company had set up in Australia he said:
“Well, all the engineers are here. All the ideas come from Australia. A lot of the products are sold in Australia. By chance, not the ones that I was working on but, for example, a lot of the X-ray machines are sold to Western Australia – a lot of equipment.” (Transcript, page 21)
When asked further about the setting up of his employer in Australia, he said manufacturing costs were cheaper because of significant re-designing that took place. Because of his site experience, he had input into the re-design process.
14. The Tribunal referred the applicant to the Citizenship Instructions and, when asked to comment, he said:
“I want to make a go of it. The predicament – I could foresee the predicament I’d be in with these rules, which I got before, of never being able to get citizenship and that was a bit of a worry to me. If I don’t have citizenship, I’m going to be in a situation where I’m continuously applying for visas and, as I own property, I don’t want to take the risk of not being able to come back [to] the country that I choose to live in. In terms of the decision that the Immigration Department made, originally I had one concern about the hastiness of the decision. I had one case officer that was on it until right near what I thought was the end, and she was eight months pregnant, and there was a change of case officer at the very last minute. At that time, I was under the understanding that the decision would be made in a few months. I came back and talked to the new case officer who said – I said, ‘Well, do you have a copy of all the documentation?’ and she hadn’t. That might explain why some of the documents are a bit poor in quality. I provided them again from my copy. I wanted to follow up. The decision was made only three days later. I was on the phone when I got the letter in the mail, so I felt it was kind of a hasty decision …” (Transcript, page 24)
consideration
15. During the course of his opening, Mr d’Assumpcao raised the issue of the applicability of the Act to Mr Grylls’ application. The point raised was whether, as a result of the repeal of the Act by the Australian Citizenship (Transitions and Consequentials) Act 2007 (“Transitional Act”) and the commencement of the Australian Citizenship Act 2007 (“2007 Act”) on 1 July 2007, the 2007 Act should apply in the determination of Mr Grylls’ application for review. On 27 February 2007 when he made his application for review, the Tribunal had jurisdiction to hear the matter pursuant to s 52A(a) of the Act and this was preserved by virtue of Item 10 of Part 1 of Schedule 3 to the Transitional Act. Then, Item 12 of Schedule 3 provided that Part 1 did not limit the operation of s 8 of the Acts Interpretation Act 1901 (“Interpretation Act”) in relation to the repeal of the Act. Section 8 of the Interpretation Act relevantly provides:
“Where an Act repeals in the whole or in part a former Act, then unless the contrary intention appears the repeal shall not:
…
(c)affect any right privilege obligation or liability acquired accrued or incurred under any Act so repealed; or
…
(e)affect any investigation legal proceeding or remedy in respect of any such right privilege obligation liability penalty forfeiture or punishment as aforesaid;
and any such investigation legal proceeding or remedy may be instituted continued or enforced, and any such penalty forfeiture or punishment may be imposed, as if the repealing Act had not been passed.” [emphasis added]
Mr d’Assumpcao submitted that the making of an application for review created an “accrued right” within the meaning of s 8 of the Interpretation Act. He referred to the decision of the High Court in Esber v the Commonwealth of Australia and Anor (1992) 174 CLR 430 where the majority of the Court said (at 440):
“Once the appellant lodged an application to the Tribunal to review the delegate's decision, he had a right to have the decision of the delegate reconsidered and determined by the Tribunal. It was not merely ‘a power to take advantage of an enactment’. Nor was it a mere matter of procedure; it was a substantive right. Section 8 of the Acts Interpretation Act protects anything that may truly be described as a right, ‘although that right might fairly be called inchoate or contingent’. This was such a right. It was a right in existence at the time the 1971 Act was repealed. That being so, and in the absence of a contrary intention, the right was protected by s.8 of the Acts Interpretation Act and was not affected by the repeal of the 1971 Act.”
He also referred to the decision of the Full Federal Court in Dai Xing Yao v Minister for Minister for Immigration and Ethnic Affairs (1996) 69 FCR 583, where the Court said (at 590):
“…Esber has been seen by some members of this Court as establishing that s 8(c) preserves to an applicant the benefit of the whole range of pre-repeal avenues of review so long as the applicant has set the review process in train by making an initial application. Thus the fact that the relevant statute is repealed immediately after the making of an initial application for review will not prevent an applicant availing himself of the whole gamut of review and appeal procedures even though nothing has yet been decided against him.”
16. The Tribunal accepts Mr d’Assumpcao’s submission and finds that Mr Grylls’ application should be determined under the provisions of the Act.
Does s 13(1)(d) of the Act apply?
17. Section 13(1)(d) of the Act requires that Mr Grylls be present in Australia for a period or periods amounting in total to not less than one year during the period of 2 years immediately preceding the making of his citizenship application. On the evidence (which was accepted by the respondent), Mr Grylls had been present in Australia for periods totalling approximately 367 days at the time he made his application. In these circumstances, he has satisfied the requirements of s 13(1)(d).
Does s 13(1)(e) of the Act apply?
18. Section 13(1)(e) of the Act requires that Mr Grylls be in Australia for a period or periods totalling not less than 2 years during the period of 5 years immediately preceding the making of his citizenship application. On the evidence (which Mr Grylls accepts) he did not satisfy the residence requirement and, in the circumstances, s 13(1)(e) does not apply.
Should the discretion in s 13(4)(b)(i) of the Act be exercised?
19. The critical issue in Mr Grylls’ case was whether, when he was outside Australia, he was engaged in activities beneficial to the interests of Australia. His evidence was that, whilst overseas in the period between 16 September 2004 and 28 September 2006 (when he made his application for citizenship), he was employed by a company called, most recently, Thermo Fisher Scientific Corporation (“TFS”). TFS had previously been called Thermo Electron Corporation and appears to have operated in Australia as Thermo Gamma-Metrics Pty Ltd and Thermo Ramsey Pty Ltd. His role with TFS was as a customer support engineer and he worked on different analysers that were used in the mining industry – servicing and commissioning and training people on-site in the use of the analysers. Specifically, he worked on X-ray machines, particle size analysers and pro-gamma neutron activation analysers. He said his work was important for Australia because, if it wasn’t done correctly, the consequences would be devastating for the Australian markets overseas. In the case of the PSM400 analyser, it was designed in the United States, now manufactured in Australia and had been modified here since. The analysers were used by mining companies in Australia, but mostly overseas. They were used at a large number of sites, numbering in the hundreds, world-wide. In the case of the PGNA, they were used in Australia, but mainly exported.
20. In relation to determining whether an applicant was engaged in activities beneficial to Australia, the respondent has issued the Citizenship Instructions (Exhibit R1, T4). The respondent’s Decision Record in the case of Mr Grylls’ application (Exhibit R1, T2 at pages 6-12) refers to the factors that were considered relevant to the assessment in his case. The factors were those contained in paragraphs 4.3.19, 4.3.20, 4.3.21, 4.3.22 and 4.3.26. In Minister for Immigration, Local Government and Ethnic Affairs v Roberts (1993) 29 ALD 656, in commenting upon the efficacy of policy guidelines, Einfeld J said (at 659):
“16. … In my opinion the Tribunal erred in its interpretation of the Ministerial Policy in finding that paragraph 3.8.3(a) and (b) were merely discretionary factors. However, this is not the end of the question, as the Tribunal is not bound to apply a practice or a policy adopted by a decision-maker. This issue was considered by Justice Davies when President of the Tribunal in Re Dainty v the Minister for Immigration, Local Government and Ethnic Affairs (1987) 6 AAR 259 where his Honour stated (at 267):
‘I accept that, in the exercise to 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 in 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.’
17. Therefore all factors that are relevant should be taken into account and their consideration should not be denied because they fall outside guidelines which have been prepared. That is not to say, however, that any factors can be taken into account - the Tribunal and indeed any decision-maker is necessarily constrained by the legislation itself. Whether the legislation is satisfied is a question of law and not a matter of discretion.”
21. Later, Einfield J analysed the expression “activities … beneficial to the interests of Australia” in s 13(4)(b)(i)(C). He said (at 660):
“21. 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.
22. The importance to Australia of the Australian oil industry cannot be doubted. Although there was no evidence in this case on the specific importance of the construction of oil rigs, it was reasonably open to the Tribunal to find that oil rig construction, as an intrinsic part of the Australian industry, is itself a benefit to Australia. But it is quite another matter as to whether the construction of rigs in the United Kingdom and Brunei represent any such benefit, still less whether Mr Roberts' work as a rigger at those places was advantageous to this country. To reach such conclusions, some evidence would have been required demonstrating the benefits propounded. For example, if the person concerned was studying or using new techniques or materials with a view to introducing them to Australian construction, or if he was taking Australian technology to these places, the benefits would be established. If it was established that experiences overseas increased the particular person's chances for remunerative work and advancement in the industry in Australia, a relevant advantage may well be evidenced. …”
22. In cross-examination by Mr d’Assumpcao, the applicant said that, in terms of spare parts for the analysers, he was directly involved with customers in assessing need and in retrieving quotations. However, he admitted that he had only spent 10 to 15 percent of his time outside Australia attending to sales of spare parts, whereas 85 to 90 percent of his time was devoted to commissioning (ie connecting and calibrating) equipment. Later, he frankly admitted that the predominant purpose for his presence overseas was to act as a customer support engineer, which was his role. Then, when asked whether there had been a sharing of profits of some kind between the United States parent company and the Adelaide based company, he said it seemed that a lot of money arising from the manufacture of the analysers stayed in Australia. He believed that, with rebranding, the analysers were more recognised as Australian products than United States products. Most of the engineers and programmers working overseas on the analysers were Australian, so that the perception was that the manufacturing base for the analysers was Australia and not the United States. Although the companies operating in Australia were wholly owned United States subsidiaries, all the engineers working on the analysers were in Australia, all the ideas came from Australia and a lot of the products were sold in Australia. In relation to the PSM400 that he was involved with, it had gone through major re-design and modification in Australia.
23. Mr d’Assumpcao submitted that Mr Grylls’ case was an appropriate one to apply the Citizenship Instructions. The Tribunal can see no reason why the weight normally given to the Instructions should be withheld in the present circumstances. In doing so, the Tribunal notes that Mr Grylls was required to work overseas by a private employer (paragraph 4.3.21). In looking at activities that have been “beneficial to the interests of Australia”, activities may be considered to be beneficial to an individual as well as to Australia as a whole. They are not mutually exclusive (see Re Pai and Minister for Immigration and Ethnic Affairs (1994) 35 ALD 762 per Deputy President G L McDonald at paragraph (18)). Moreover, if Mr Grylls’ activities were in fact “beneficial to the interests of Australia”, it matters not that they were also beneficial to the interests of his employer (see Re Ho and Minister for Immigration and Ethnic Affairs (1994) 34 ALD 664 per Deputy President B J McMahon at paragraph [17]). However, the Tribunal is conscious of the warning also given by Deputy President McMahon in Re Ho, when he said at paragraph [27]:
“27. … 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.”
conclusion
24. In the respondent’s Decision Record, the decision-maker has identified Mr Grylls’ presence in Australia as 366 days in the 2 year period preceding the date of his citizenship application, with 421 days spent outside Australia. In the 5 year period immediately preceding the date of his application, he was present in Australia for 378 days and spent 364 outside Australia. Mr Grylls has satisfied the requirements of s 13(1)(b), but he is unable to satisfy the provisions of s 13(1)(e) in the same way, However, as was the case in Re Pai, if the discretion is to be exercised, it should not be exercised in a mechanical way. An overall view, weighing all factors, must be taken. Having reviewed and considered the evidence, the Tribunal is satisfied that, on balance, the discretion allowed within s 13(4)(b)(i) of the Act should be exercised in the applicant’s favour.
decision
25. For the reasons above, the Tribunal sets aside the decision under review and substitutes a decision that the applicant’s application for Australian citizenship be granted.
I certify that the 25 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member R W Dunne
Signed: .....................................................................................
AssociateDate of Hearing 27 August 2007
Date of Decision 21 December 2007
Advocate for the Applicant Self represented
Advocate for the Respondent Mr P de'Assumpcao
Solicitor for the Respondent AGS
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