Guntupalli and Minister for Immigration and Citizenship

[2008] AATA 521

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2008] AATA 521

ADMINISTRATIVE APPEALS TRIBUNAL                No.  2007/4703

GENERAL ADMINISTRATIVE DIVISION
Re		SIVA RAMA KRISHNA PRASAD GUNTUPALLI

Applicant

And MINISTER FOR IMMIGRATION AND CITIZENSHIP

Respondent

DECISION

Tribunal: G.D. Friedman, Senior Member

Date:23 June 2008

Place:Melbourne

Decision: The Tribunal affirms the decision under review.

(sgd) G.D. Friedman

Senior Member

CITIZENSHIP ‑ application for Australian citizenship ‑ failure to satisfy residence requirements - information technology professional - resident in India - whether activities outside Australia beneficial to the interests of Australia - exercise of discretion - intention to live in Australia  

Australian Citizenship Act 2007  s 21, 21(2)(g)

Australian Citizenship (Transitionals and Consequentials) Act 2007 Item 7 of Schedule 3

Minister for Immigration, Local Government & Ethnic Affairs v Roberts (1993) 41 FCR 82

Re Drake and Minister for Immigration and Ethnic Affairs (No.2) (1979) 2 ALD 634

Re Fraser and Minister for Immigration, Local Government and Ethnic Affairs (AAT No. S91/205, 15 October 1991) 

Re Ho and Minister for Immigration and Ethnic Affairs (1994) 34 ALD 664

Re McCarthy and Minister for Immigration, Local Government and Ethnic Affairs

(1993) 30 ALD 447

Re Nensey and Minister for Immigration and Multicultural Affairs [2001] AATA 723

Re Pai and Minister for Immigration and Ethnic Affairs (1994) 35 ALD 762

Re Singh and Minister for Immigration and Multicultural Affairs (AAT 12855, 5 May 1998)

Re Tsui andMinister for Immigration, Local Government and Ethnic Affairs (1991) 24 ALD 236

REASONS FOR DECISION

23 June 2008  G.D. Friedman, Senior Member

1.      Prasad Guntupalli is an Indian citizen and Australian permanent resident who is based in Bangalore, India where he heads an Indian information technology (IT) company that is owned by an Australian company.  His application for citizenship was refused because he does not satisfy the normal residence requirements and his business activities were held to be of insufficient benefit to Australia. 

ISSUES

2.        The issues before the Tribunal are:

·What is the legislative and policy background?

·Should the discretion to treat periods outside Australia as periods in which Mr Guntupalli was present in Australia be exercised?

·Is Mr Guntupalli likely to reside in Australia or maintain a close relationship with Australia?

WHAT IS THE LEGISLATIVE AND POLICY BACKGROUND?

3.        The Australian Citizenship Act 2007 (the Act) came into operation on 1 July 2007. As Mr Guntupalli lodged his application on 23 October 2006 (prior to the commencement of the Act) but a decision had not been made by 1 July 2007, under Item 7(2) of Schedule 3 of the Australian Citizenship (Transitionals and Consequentials) Act 2007 (the Transitionals Act) the application became a new application which was taken to have been made under s 21 of the Act.

4. Sub-item 7(8)(1) of Schedule 3 of the Transitionals Act provides:

(8)In applying section 22 of the new Act to a new application covered by subitem (2), subsections 22(1) to (2), (4A) and (5A) of the new Act do not apply and the following subsections of section 22 of the new Act apply instead:

(1)For the purposes of section 21, a person satisfies the residence requirement if the person has been present in Australia as a permanent resident for:

(a)a total period of at least 1 year in the period of 2 years before the day the person made the application; and

(b)a total period of at least 2 years in the period of 5 years before that day.

Sub-Item 7(4) of Schedule 3 of the Transitional Act provides:

(4)The Minister may treat a period as one in which the person was present in Australia as a permanent resident if:

(a)the person was engaged in activities during that period that the Minister considers to be beneficial to Australia; and

(b)the person was not present in Australia during that period but was a permanent resident during that period.

5. The relevant policy is contained in Chapter 5 of the Australian Citizenship Instructions (ACI).  The Tribunal should have regard to these instructions unless there is good reason not to do so (Re Drake and Minister for Immigration and Ethnic Affairs (No.2) (1979) 2 ALD 634). In relation to the discretion in sub-item 7(4) of Schedule 3 of the Transitionals Act, Chapter 5 of the ACI provides:

Periods during which the applicant was a permanent resident and was outside Australia engaged in activities beneficial to the interests of Australia may be treated as periods in which the applicant was present in Australia as a permanent resident.  This discretion applies to both residence requirements (ie both “2 years in the last 5” and “1 year in the last 2”).

As a matter of policy:

·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; and

·a permanent resident during any of the periods counted; and

·the applicant must have been engaged in a series of activities, not just a one-off transaction; and

·the activities must also be during the relevant period/s under consideration; and

·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.

Policy also states that 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 by either;

-     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).

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 parent company and Australian companies in general, falls short of demonstrating that 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 AAR case of McCarthy).

6.        Section 21(2)(g) of the Act provides:

(2)A person is eligible to become an Australian citizen if the Minister is satisfied that the person:

…

(g)is likely to reside, or to continue to reside, in Australia or to maintain a close and continuing association with Australia if the application were to be approved;

SHOULD THE DISCRETION TO TREAT PERIODS OUTSIDE AUSTRALIA AS PERIODS IN WHICH MR GUNTUPALLI WAS PRESENT IN AUSTRALIA BE EXERCISED?

7. Mr Guntupalli conceded that at the date of his application for citizenship he had spent 62 days in Australia in the preceding two years, and 349 days in the preceding five years, so he does not meet the residency requirements of the Transitionals Act. However he told the Tribunal that his activities outside Australia have been beneficial to the interests of Australia and warrant the exercise of the discretion. He stated that he was granted permanent residency on 15 October 2003 and since 2004 he has been living in India as Resident Director and Chief Executive Officer of Attra Infotech Private Limited (Attra Infotech), incorporated in India, of which Attra Pty Ltd (Attra Australia), an Australian company, owns 80 per cent of share equity.

8.        Mr Guntupalli stated that Attra Australia sought to take advantage of global IT opportunities and the company asked him to head Attra Infotech because of his 21 years’ experience in IT and his proven ability to build and develop businesses.  He said that the aim is to gain market share internationally while protecting Australian revenue and jobs by combining High End Australian Small/Medium Enterprise (SME) skills with the market potential offered by the scale of the Indian market.  Mr Guntupalli emphasised that the growth of offshore IT businesses was harming the SME IT sector in Australia, so the most appropriate strategy was to take Attra Australia’s business directly to the Indian IT market and use its expertise to increase the scale of Attra Australia’s operations.   He said that for these reasons he accepted Attra Australia’s offer to move to Bangalore.

9.        In respect of benefits to Australia, Mr Guntupalli stated that his work offshore has resulted in substantial benefit that goes beyond personal benefit to himself, Attra Australia and Attra Infotech.  He said that:

·he has secured $2 million in overseas investment for an Australian IT company;

·75 jobs were created by his promotion of a development centre for excellence in Melbourne;

·he helped to facilitate the visit to India of a Minister of the Australian Government;

·he served on a committee to improve the quality process for Australian companies;

·Attra Australia has grown and has retained Australian customers;

·20 staff are working in India on a project with an Australian bank;

·revenues for the Australian subsidiary have grown markedly;

·he facilitates a global strategy for the organisation;

·he has helped open offices in Singapore and the USA;

·he has assisted Australian companies to pursue global strategies; and

·he has assisted Attra Australia to attract high calibre IT professionals to work in Australia under the skilled migrant program.

10.      In oral evidence Mr Guntupalli explained that the decision by Attra Australia to adopt a more global approach resulted from the rapid changes in the international IT industry.  He said that the success of Attra Infotech has led to more jobs in Australia and has established an Australian brand in the international IT community.  Under cross-examination he agreed that at this stage no profits have been remitted from Attra Infotech to Australia, but he emphasised that his efforts and the activities of Attra Infotech have increased the potential for the export of Australian functional skills in the global market.

11.      In a written statement dated 26 February 2008 (Exhibit A2) Mr A. Gammampila, Chief Executive Officer, Attra Australia, said that Mr Guntupalli has built Attra Infotech single-handedly over the last three years and is a key member of the global leadership team, having been instrumental in winning new business in Singapore.  Mr Gammampila stated that Mr Guntupalli’s activities in managing Attra Infotech have benefited not only Attra Australia as the Australian parent company, but Australia more generally because of revenue generation flowing into Australia with consequent employment growth and opportunities in the Indian and global markets.  He said that Mr Guntupalli’s business acumen has been instrumental in Attra Australia’s success and the recruitment of IT staff to Australia.  In oral evidence Mr Gammampila explained that the activities of Attra Infotech promote Australian IT expertise.  Under cross-examination he agreed that at this stage no profits have flowed from Attra Infotech to Attra Australia.            

12.      In a written statement dated 1 March 2008 (Exhibit A3) Mr N. Roach, businessman, said that he is Chairman Emeritus of the Australia India Business Council and has known Mr Guntupalli for eight years professionally and as a family friend.  He stated that the work that Mr Guntupalli is undertaking in India is of significant benefit to Attra Infotech, Attra Australia, the Australian IT industry and to Australia generally, because Attra Infotech has established a business in India that competes for IT services globally and builds a strong resource base of IT specialists.  Mr Roach said that Mr Guntupalli has an extensive knowledge of the industry in India and Australia, and is required to remain in India until suitable staff may be trained to fulfil the role in the future.  He said that the benefits to Australia include a strong company in Australia, a profitable investment in India and the building of a strong capability in the global delivery of services, which will enhance Australia’s IT industry because other Australian companies can emulate Attra Australia’s success.

13.      In oral evidence Mr Roach explained that Austrade, the Australian Government agency that promotes Australian exports, has used Attra Infotech in promotional material as a case study of a successful company that has identified its market and has focused on opportunities in IT consultancies.  He said that Australia’s image abroad as a provider of IT services has been enhanced through its connections with the Indian market, and that opportunities for other Australian companies have been promoted.

14.      In relation to whether Mr Guntupalli has engaged in activities outside Australia that are beneficial to the interests of Australia, the Tribunal notes there must be some objective public benefit to Australia, rather than the private interest of the person (Minister for Immigration, Local Government & Ethnic Affairs v Roberts (1993) 41 FCR 82); and the benefit should be largely as a result of an applicant’s activities at the time they were undertaken, rather than a time in the future and should not be remote, indirect or speculative (Re McCarthy and Minister for Immigration, Local Government and Ethnic Affairs (1993) 30 ALD 447). In Re Fraser and Minister for Immigration, Local Government and Ethnic Affairs (AAT No. S91/205, 15 October 1991) the Tribunal held that activities beneficial to the interests of Australia refers to the public interests of Australia such as activities that will achieve recognition of Australia or increase international respect and goodwill for Australia.

15.      In Re Ho and Minister for Immigration and Ethnic Affairs (1994) 34 ALD 664 the Tribunal held that the discretion was not intended to be an alternative to the residence requirements, and that some flexibility was required. In Re Nensey and Minister for Immigration and Multicultural Affairs [2001] AATA 723 the Tribunal held that in relation to a golf resort project in India, Australian staff associated with the project obtained an entry into the Indian market that would not otherwise have arisen, and the opportunity to gain experience and contacts enabled them to secure further international contracts. In Re Singh and Minister for Immigration and Multicultural Affairs (AAT 12855, 5 May 1998) the Tribunal stated at [11]:

While the business, no doubt, provides a service to such Australians, its overriding purpose is to return a profit to Chatyon's proprietors, including the applicant. There is little activity which arises from the business that the Tribunal can, with any confidence, identify as fulfilling a "public interest" benefit to Australia of the sort contemplated by Einfeld J in Robert's case.

16.      The Tribunal acknowledges that Mr Guntupalli is a highly-regarded and experienced IT professional who has been instrumental in developing the business of global IT services in the competitive Indian market for the benefit of his employer (Attra Infotech).  He has contributed significantly to the growth of Attra Infotech.  However the Tribunal takes into account that Attra Infotech is an Indian company, although it is owned 80 per cent by Attra Australia.  Mr Guntupalli’s activities are of direct benefit to the Indian company, with some flow-on to the Australian parent company.  Despite Mr Guntupalli’s success in developing Attra Infotech, there is no close nexus between Mr Guntupalli’s overseas activities as an IT executive for that company and subsequent benefit to Australia (Re Tsui andMinister for Immigration, Local Government and Ethnic Affairs (1991) 24 ALD 236).

17.      In applying the ACI the Tribunal is required to assess Mr Guntupalli’s activities during the relevant period and not some time in the future.  Consequently the evidence that Mr Guntupalli is contributing to the potential growth in the activities and profits of Attra Infotech and Attra Australia is of limited assistance.  As an employee of Attra Infotech Mr Guntupalli receives remuneration through salary, and his activities may properly be characterised as furthering his private interests, rather than some objective benefit to Australia.  The Tribunal takes into account the evidence of Mr Roach that the Australian brand in the field of IT has been enhanced, but there is no persuasive evidence that Australia’s reputation has been enhanced beyond commercial success of an Australian company that has flowed from that company’s Indian subsidiary.

18.      In respect of the Austrade documents the Tribunal considers that the reference in the agency’s literature to Attra Infotech as a case study highlights the importance of understanding the market and meeting market needs, but does not point to any tangible benefit to Australia of the activities of the Indian company.  The Tribunal notes further that the ACI state that the discretion will usually only be exercised if the applicant is in Australia, and there is no dispute that Mr Guntupalli has been living in India since 2004.  The Tribunal is satisfied that Mr Guntupalli was not required to work overseas by…a private employer as he moved to his home city in India by agreement with his employer.  Additionally,  his activities overseas were not of a social, cultural, economic or political nature which are clearly beneficial to the interests of Australia and are widely recognised as such… .

19.      For these reasons the Tribunal finds that at the date of his application for citizenship Mr Guntupalli was not engaged in activities outside Australia that were beneficial to the interests of Australia. As a result the discretion in sub-item 7(4) of the Transitionals Act to treat the period he was not in Australia as a period that he was in Australia should not be exercised.

IS MR GUNTUPALLI LIKELY TO RESIDE IN AUSTRALIA OR MAINTAIN A CLOSE RELATIONSHIP WITH AUSTRALIA?

20.      Mr Guntupalli told the Tribunal that he intends to live in Australia and satisfies s 21(2)(g) of the Act.  He said that he spent six years in Australia and purchased a house in Sydney, which he has rented out while he is living in India.  He said that although his siblings and extended family live in Bangalore he has developed a network of friends in Sydney and Melbourne and wishes to live in Australia permanently.  Mr Guntupalli explained that he has visited Australia for business and holidays several times in the last three years.  He said that he is unable to predict when he would return to Australia, but expected that twelve to eighteen months might be an appropriate estimate.  He acknowledged that he has a son aged eight years who lives with him in Bangalore, and stated that he is unsure whether his son would accompany him to live in Australia.  He said that his former wife would not object to such a move.

21. In view of the Tribunal’s findings in relation to the exercise of the discretion in sub-item 7(4) of the Transitionals Act, there is no necessity to make a finding on s 21(2)(g) of the Act, as Mr Guntupalli is unable to satisfy the criteria for the grant of citizenship.

DECISION

22.      The Tribunal affirms the decision under review.

I certify that the twenty-two [22] preceding paragraphs are a true copy of the reasons for the decision of:

G.D. Friedman, Senior Member

(sgd) Mara Putnis

Associate

Date of hearing:  13 June 2008

Date of decision:  23 June 2008

Counsel for the applicant:            Mr G. Gilbert

Solicitor for the applicant:            Clothier Anderson & Associates

Advocate for the respondent:       Ms A. Linacre       
Solicitor for the respondent:         Clayton Utz