Hou and Minister for Immigration Multicultural and Indigenous Affairs - [2002] AATA 242

DECISION AND REASONS FOR DECISION [2002] AATA 242

ADMINISTRATIVE APPEALS TRIBUNAL )

) No N2001/1386

GENERAL ADMINISTRATIVE DIVISION          )
           Re      Kang Hou
  Applicant
           And    Minister for Immigration Multicultural and Indigenous Affairs
  Respondent

DECISION

Tribunal Mr R P Handley

Date12 April 2002
PlaceSydney

Decision The Tribunal affirms the decision under review.

..............................................
R P Handley
Deputy President
CATCHWORDS
CITIZENSHIP – application for grant of Australian Citizenship – need to satisfy the requirement for permanent residency – discretion that may be applied if period of residency is not satisfied – commitment to Australia as shown by beneficial business activities or by physical and emotional ties – discretion will not normally be exercised if applicant is overseas – held there are insufficient grounds to exercise discretion in favour of applicant.
Australian Citizenship Act 1948 ss 13(1) (4) (9), 13(1)(d) (e), 13(4)(b), 13(4)(b)(i), 13(9)(c),
Australian Citizenship Instructions
Ho and Minister for Immigration and Ethnic Affairs (1994) ALD 664
Lusan and Department of Immigration and Multicultural Affairs [2000] AATA 687
Mambir Singh and Minister for Immigration and Multicultural Affairs [1998] AATA 329
Minister for Immigration, Local Government and Ethnic Affairs v Roberts (1993) 29 ALD 656
Re McCarthy andMinister for Immigration, Local Government and Ethnic Affairs (1993) 30 ALD 447
Re Tinamisan and Minister for Immigration and Multicultural Affairs (1996) 43 ALD 349
Re Tsui and Minister forImmigration, Local Government and Ethnic Affairs (1994) 24 ALD 236
Wong Fan Chor and Minister for Immigration and Ethnic Affairs (AAT 10830, 27 March 1996)

REASONS FOR DECISION

April 2002 Mr R P Handley

This is an application by Kang Hou ("the Applicant") for a review of a decision of a delegate of the Minister for Immigration Multicultural and Indigenous Affairs ("the Respondent") made on 27 August 2001 to refuse a grant of Australian citizenship to Mr Hou. At the hearing, the Applicant represented himself and the Respondent was represented by Sadie Hamer, Solicitor, of the Australian Government Solicitor's Office. The evidence before the Tribunal comprised the documents produced pursuant to s 37 of the Administrative Appeals Tribunal Act 1975 ("the T Documents"). Oral evidence was given by telephone by the Applicant.
BACKGROUND
The Applicant, Mr Hou, was born in the People's Republic of China on 14 July 1960 and is aged 41. Mr Hou is married to Chun Lei Liu, who was born on 12 March 1960 and is aged 42. They have one child, Peter Zi Ming Hou, who is aged 11. Ms Liu and Peter Hou are both Australian citizens. [
Mr Hou first came to Australia in 1988 on a visitor visa and then, in July 1992, entered on a student visa to undertake a Master of Commerce degree at the University of Wollongong. Having completed that program, he undertook a diploma in business information management at a commercial college in Rockdale and, in 1994, applied for skilled migration to Australia. He was granted permanent residence on 24 February 1995. Mr Hou became a registered migration agent in 1996 and, in that year, returned to China to set up a migration consultancy business in Guangzhou, assisting Chinese citizens to prepare and submit applications for visas to enable them to live and work in Australia. In 1999, Mr Hou expanded his business by setting up branches in a number of northern cities in China.
Initially, after Mr Hou returned to China in 1996, his wife and son continued to live in Sydney. However, in 1997, they returned to China to join him and, apart from occasional visits to Australia, have remained there since. In the two years before submitting his application for a grant of Australian citizenship on 25 January 2001, Mr Hou spent 21 days in Australia, and in the five years before lodging his application, he spent 174 days in Australia. Mr Hou was also accredited by the National Accreditation Authority for Translators and Interpreters (NAATI) as a translator in the English and Mandarin languages on 1 April 1994 and was admitted as a Professional National Accountant of the National Institute of Accountants on 8 August 2001.
On 27 August 2001, Mr Hou's application for Australian citizenship was refused by a delegate of the Respondent on the grounds that he had not satisfied the residential requirements required for citizenship. On 14 September 2001, Mr Hou lodged an application with the Tribunal for a review of this decision.
RELEVANT LAW AND POLICY
Section 13(1) of the Australian Citizenship Act 1948 ("the Act"), provides that the Respondent may grant Australian citizenship to a person who satisfies the Respondent of certain matters set out in that subsection. Relevantly, the Minister must be satisfied 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 two years immediately preceding the date of the furnishing of the application; and
(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 two years during the period of five years immediately preceding the date of the furnishing of the application;
However, pursuant to s13(4), the Minister may, in his or her 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;
(ii)treat a period before the period of 5 years referred to in paragraph 1(e), being a period during which the applicant was present in Australia as a permanent resident, as a period within that period of 5 years;
Pursuant to s 13(9), the Minister also has a discretion to grant a certificate of Australian citizenship to a permanent resident who is the legal spouse, widow or widower of an Australian citizen.
The Government's policy with regard to the exercise of these discretions is set out in the Australian Citizenship Instructions. With regard to s 13(4)(b)(i), the Instructions provide as follows:
4.5.12 in assessing whether activities are beneficial to the interests of Australia, consider the following:

It requires "something in the nature of activities which provides 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.)
4.5.13 "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).

4.5.14 If the discretion is available, current policy is that decision-makers should normally follow the guidelines approved by the then Minister in August 1985 that the discretion will only be exercised if all of the following requirements are satisfied:
(a) The Applicant was:
(i) either for an extended period or on a regular short-term basis:

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 operation of their business; or
(ii)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 …
(b)The applicant has established a prior primary identification with Australia, and intends to continue to live in Australia and can show that he or she has commitments here such as substantial assets, or has close ties with the business community or has family members established in the country. See, further 4.5.15 below.
(c)The applicant is in Australia. If the applicant is overseas, the discretion will not normally be exercised.
4.5.15 In assessing (b):
The primary identification should be evidenced by reference to matters prior to the application for citizenship.
Relevant factors show whether they can show they have commitments here such as substantial assets, close ties with the business community, or family members established in the country and that those commitments outweigh those which they have in any other country.
The applicant's physical and emotional tie with Australia should be weighed against ties in any other country (for example residence, house, schooling of children, residence of spouse, citizenship held by immediate family, business ties, family and friends ties, and general identification).
"The weight for the applicant's physical and emotional inclinations to Australia should exceed the weight of the applicant's inclination to any other country. Physical inclinations are assets and time spent in residence. Emotional inclination can be assessed by taking into account the record of the applicant's supportive actions directed towards the citizens of the country (usually family) and towards the enhancement of activities which constitute the public policy of the country." (AAT in Tse.).
More weight should be given to emotional inclinations as emotional ties tend to bond the individual to a country. Emotional bonding leads to a higher level of identification with a country than physical or material transactions because physical links can be more easily engineered to demonstrate commitment.
Usually the strongest identifying factor to a place is having friends and relatives living there. Home is the critical point.

4.5.17There is a discretion to count permanent residence earlier than 5 years before application towards the "2 years in 5" residence requirement. This discretion does not apply to the "1 year in 2" residence requirement.

4.5.18As a matter of policy, this discretion would usually only be exercised in certain situations of hardship or disadvantage, namely any of the following:

…
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 by reason of the nationality of the passport/travel document he/she holds or is entitled to hold.
…

The Australian Citizenship Instructions also refer to the exercise of the Minister's discretion in s 13(9)(c) relevantly as follows:

4.2.1Paragraph 13(9)(c) of the Act gives a discretion to grant a certificate of Australian citizenship to a permanent resident who is the legal spouse, widow or widower of an Australian citizen.

4.2.3.For applicants outside Australia, s 13(9)(c) is available, but still requires that the applicant is a permanent resident (ie is the holder of a valid resident return visa or equivalent). As a matter of Ministerial policy, spouses overseas are usually required to meet all of the following requirements:

The applicant can establish that he or she is being prevented from travelling to Australia because he/she lacks Australian citizenship and so cannot get an exit visa from the country of residence.
The Australian citizen spouse is living abroad with the applicant.
The applicant and the Australian citizen spouse intend to travel to Australia for residence.

APPLICANT'S EVIDENCE

Mr Hou said he first came to Australia in 1988 and had travelled to Australia on business and visitor visas. His son, Peter Hou, was born in Sydney on 14 August 1990 while Mr Hou was here on a business visa. His wife had a medical visa on the grounds of childbirth at that time. In July 1992, he arrived in Australia on a student visa to study a one year full-time Master of Commerce degree at the University of Wollongong, accompanied by his wife and son. After completing that degree, he enrolled in a one year diploma in business information management at a commercial college in Rockdale. However, he did not complete that program. Mr Hou applied for skilled migration in 1994 which was approved in 1995. He returned to China in 1996 to establish a migration consultancy, having been registered as a migration agent in Australia.

Initially after returning to China, Mr Hou returned to Sydney about every three months because his wife and son were still living there. In 1997, his wife and son moved to China to be with him. Since that time, he has returned to Australia on a regular basis. Although he has no other relatives in Australia, he has friends with whom he is in regular contact, and he also returns to Australia for holidays and for business purposes. He returned to Australia twice in 2001: in August on a short visit for business and to see some friends, and in November/December to attend a migration agents professional development seminar in Adelaide and to attend the Tribunal for a preliminary conference.
Mr Hou established his migration consultancy in 1996 in Guangzhou. In 1999, he expanded his business by establishing branches in a number of northern cities of China. He said that while there are now a number of migration agents operating in Guangzhou, he is the only Australian migration agent in some northern cities of China. Overall, he now has one of the largest Australian migration consultancies operating in China. Mr Hou said when he moves his base in Sydney, he will run the business from Sydney but will employ a manager in China.
In the course of his business, Mr Hou works to promote Australia including presenting seminars to persuade potential applicants that Australia is a good destination. He has successfully assisted more than 100 skilled applicants to migrate to Australia and he has another 300 applicants whose applications are currently being processed. Mr Hou referred the Tribunal to information provided by him, giving the example of eight specific migrants, including two migrants working in the field of computers and information technology. However, Mr Hou said he does not have further information about what his successful applicants actually end up doing after they migrate to Australia because he does not maintain contact with them. Nevertheless, he believes such migrants are making a significant contribution to Australia. Mr Hou said his business is beneficial to Australia in that successful migrants whom he assists are bringing economic benefits to Australia.
Mr Hou said he lived in Australia for over four years before he returned to China to set up his business. Early next year, he and his family want to return to Australia, and base themselves there. Their intention is to buy a house in New South Wales and Mr Hou intends setting up a company in Australia with a view to investing in property development. Currently, he and his wife have a registered business name in Australia and he has a cheque account with the Commonwealth Bank which has an average balance of over $10,000. His wife also has Commonwealth Bank shares and he has a Commonwealth Bank account with $8,000 deposited.
Mr Hou said his principal business is as a migration consultant. He charges between $4,000 - $5,000 for his services if an application is successful. He does not charge if an application is unsuccessful. In 2001, he assisted over 100 applicants, most with skilled migration visas. Mr Hou has saved money earned from his business in China to bring back to Australia with a view to buying a house and making other investments. This money is now deposited in a bank in China. Mr Hou said he also has invested approximately $40,000 in a lanolin business based in Shanghai. He is a passive investor in this business which imports barrels of lanolin from Australia to Shanghai for local sale.
Mr Hou said all of his family live in China except a brother who lives in the United States. However, his parents are applying for migration to Australia. He probably has more friends in Australia than in China where most of his contacts are of a business nature. He has strong emotional ties with Australia: he was educated there, his son was born there, he worked there and he wants to make his home there.
Mr Hou said his ability to travel has been limited due to his being a Chinese passport holder. The United States and Japan require that Chinese passport holders who are seeking business visas must lodge a letter from a company sponsoring their visit with the application for a visa. Mr Hou has wanted to visit the United States and Japan to see if there are opportunities for exporting Australian lanolin there. Because of the nature of such an exploratory visit when he would not have a sponsor, he would be excluded from travelling because he would be unable to meet the precondition of a sponsor. Mr Hou acknowledged that he has not actually applied for a business visa but said that there is no point in doing so, given that he was excluded by the requirement for a sponsor.
Respondent
Ms Hamer, for the Respondent, submitted that Mr Hou does not meet the residential requirements of s 13(1)(d) or (e) insofar as he has spent only 21 days in Australia in the last two years, and 174 days in the last 5 years, before lodging his application for citizenship. Mr Hou therefore relies on the exercise of the Minister's discretion pursuant to s 13(4)(b). Ms Hamer referred the Tribunal to departmental policy with regard to the exercise of this discretion set out in the Australian Citizenship Instructions, the relevant sections of which are included above. In Ho and Minister for Immigration and Ethnic Affairs (1994) ALD 664 at paragraph 25, Deputy President McMahon emphasised that the activities to which s 13(4)(b) refers must be of a public character and, at paragraph 27, he said that the circumstances in which the discretion may be exercised must be exceptional. As Deputy President McDonald recognised in Mambir Singh and Minister for Immigration and Multicultural Affairs [1998] AATA 329 at paragraph 6, the test generally adopted when considering the exercise of the discretion provided in s 13(4) is that set out by the Federal Court in Minister for Immigration, Local Government and Ethnic Affairs v Roberts (1993) 29 ALD 656 where, at 660, Einfeld J said:
It seems to me that the term "activities beneficial to the interests of Australia" means something in the nature of activities which provides some advantage to Australia, whether commercial or otherwise. The concept necessarily connotes some public interest of Australia, even if of a general or non-specific character and means more than the private interests of the respondent. The section requires some objective benefit to Australia.

In Re Tsui and Minister for Immigration and Local Government and Ethnic Affairs (1991) 24 ALD 236, the Tribunal said that the evidence must demonstrate a strong connection between the applicant and Australia.

In Mambir Singh (supra), Deputy President McDonald found that a business, while providing a service to Australian expatriates working and living in Hong Kong, had as its overriding purpose, the return of a profit to the proprietors of the business, including the applicant. Deputy President McDonald said, at paragraph 11:
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.

Ms Hamer submitted that there is no demonstrated public interest in Mr Hou's everyday business. The focus of his activities is promoting his own private business interests. Similarly, in Re Tinamisan and Minister for Immigration and Multicultural Affairs (1996) 43 ALD 349, Deputy President Chappell found that there must be a clear nexus between the Applicant's activities in Cambodia and "a perceived and objective benefit to Australia". In Re McCarthy and Minister for Immigration Local Government and Ethnic Affairs (1993) 30 ALD 447 at 448, Deputy President McMahon said the Applicant's activities must provide a tangible benefit to Australia.
Ms Hamer said the Respondent therefore contends that the discretion in s 13(4)(b) should only be exercised in exceptional circumstances where there is a direct nexus between the activities engaged in overseas and a benefit to Australia. In Mr Hou's case, the Respondent says there is no direct evidence of a benefit provided to Australia by his efforts – the only evidence is of a general nature in relation to the economic benefits brought by migrants. With regard to the list of skilled applicants who have been clients of Mr Hou to whom visas have been granted, Ms Hamer said it is not clear whether those clients actually came to Australia or provided Australia with a benefit. With regard to the further submission made by Mr Hou providing a list of eight migrants who have arrived in Australia and are working, only one of those eight migrants is in an occupation which is in a "demand category".
Ms Hamer said Mr Hou is one of 23 registered migration agents operating in China of which five are in Guangzhou. If Mr Hou was not operating in China, it would still be open to potential visa applicants to go to one of the other migration agents for assistance.
With regard to Mr Hou's financial interest in a lanolin business importing lanolin from Australia into China, Ms Hamer said there is no direct benefit to Australia from this business.
With regard to s 13(9)(c) and the Minister's discretion to grant Australian citizenship to a person who is a permanent resident and spouse of an Australian citizen, the Australian Citizenship Instructions indicate that for applicants outside Australia, the Applicant is usually required to establish that he or she is prevented from travelling to Australia because he or she lacks Australian citizenship and so cannot get an exit visa from the current country of residence. While the Respondent acknowledges that Mr Hou may have experienced some inconvenience in not having an Australian passport and therefore being reliant upon his Chinese passport when travelling, he has not been excluded from travelling, and with respect to his proposed travel to the USA and Japan, he has not actually applied for visas to visit those countries. Ms Hamer referred the Tribunal to the decision in Wong Fan Chor and Minister for Immigration and Ethnic Affairs, (AAT 10830, 27 March 1996), where Deputy President Purvis found that the inconvenience of having to wait longer at overseas airports or having to apply for visas, amounted to no more than inconvenience and was not sufficient to satisfy the Tribunal that the Applicant would suffer any significant hardship or disadvantage if he was not granted Australian citizenship.
Ms Hamer referred the Tribunal to the departmental policy with regard to the exercise of the Minister's discretion under s 13(4)(b) at paragraph 4.5.14(b) of the Australian Citizenship Instructions in relation to an Applicant's identification with Australia. Ms Hamer submitted that Mr Hou has closer ties with China than with Australia, although she acknowledged that Mr Hou said in evidence that he loves Australia. Mr Hamer referred the Tribunal to the decision in Lusan and Department of Immigration and Multicultural Affairs [2000] AATA 687, where the Applicant had friends in Australia, investments in Australia but no familial ties. Ms Hamer said the Respondent submits that Mr Hou's situation is similar. She noted that he made two visits to Australia in 2001, the later visit in November to attend a continuing professional development seminar in order to maintain his registration as a migration agent. Ms Hamer submitted that the discretion is not generally exercised in favour of an applicant if the applicant is not actually present in Australia.
Applicant
Mr Hou submitted that his activities as a migration agent do provide a public benefit to Australia. He referred the Tribunal to the list of applicants for skilled migration whom he has advised and said it is now well established that skilled migration stimulates economic growth and provides an economic benefit to the receiving country. The Report of the Review of the Independent and Skilled Australian Linked Categories, dated February 1999 (T p29), indicates the expected rise in the skill level of the work force and in living standards per person as a result of that migration. The public benefit to Australia is direct, tangible, quantifiable and of a public nature. This was recognised by the Minister in a press release dated 27 April 2001 (T p38). With regard to the occupations in demand in Australia, Mr Hou said he has attracted quite a number of information technology experts to Australia.
Mr Hou disagreed with the Respondent's contention that his activities only provide a personal benefit to himself. He has operated his business in China since 1996 when there were very few migration agents operating in Guangzhou. Mr Hou said he is the only registered migration agent operating in the northern part of China and, overall, is one of the largest migration agents operating in China. He seeks to promote Australia as a destination for skilled migrants through conducting seminars at which he speaks about the attractions of Australia. He has provided evidence from applicants for skilled migration whom he has assisted and who have been impressed by the service which he has provided them. Mr Hou said all of this, together with the clear public benefit which the Minister himself recognises, is sufficient to support his contention that he provides a public benefit to Australia.
With regard to exceptional circumstances, Mr Hou said that for the past six years he has been working full-time running his migration business. Essentially, this has required that he spend most of his time in China. He asked the Tribunal to take into account that he has lived in Australia for over four years since 1992, including for almost a year after he became a permanent resident. He has a close association with Australia and is not only a registered migration agent but is also a professional accountant and a NAATI accredited interpreter. His wife and son are Australian citizens and his parents are also seeking to migrate to Australia. Moreover, although his business currently requires his presence in China, he and his family are planning to return to Australia, from where he hopes to run his migration business. He also plans to develop other business interests in Australia. Mr Hou said he is strongly committed to Australia and will continue to serve Australia's interests in the future.
With regard to the disadvantage that Mr Hou finds from travelling without an Australian passport, Mr Hou said he was unable to apply for a visa to travel to Japan and the USA on his Chinese passport because he could not meet the precondition of a business sponsor in those countries. There was therefore no point in his applying. It is not merely a matter of inconvenience. Essentially, he is excluded from travelling in those countries.
APPLICATION OF THE LAW AND FINDINGS
There is no dispute that Mr Hou is not qualified for a grant of Australian citizenship pursuant to s 13(I) of the Act as a result of his not having the necessary period of residence in Australia. The issue, therefore, is whether to exercise the Minister's discretion to grant him citizenship pursuant to s 13(4)(b) or s 13(9). For an exercise of the Minister's discretion under s 13(4)(b), the applicant must have been "engaged in activities that the Minister considers beneficial to the interests of Australia". It is clear from previous decisions of both the Tribunal and the Federal Court, that the activities need to be of a public character and beneficial to the public interest, and not merely to an applicant's private business interests. Moreover, there must be a clear nexus between the activities engaged in overseas and a tangible benefit to the Australian public. It is also apparent that the circumstances need to be exceptional. 32. The Tribunal also notes the Government Policy with regard to the exercise of the discretion in s 13(4)(b) as set out in the Australian Citizenship Instructions. In particular, paragraph 4.5.14(b) requires that the applicant show his or her commitments in Australia such as substantial assets or close ties with the business community or family members established in the country. Furthermore, according to paragraph 4.5.14(c), the applicant should be in Australia: "If the applicant is overseas the discretion will normally not be exercised". In considering these matters, the decision-maker, pursuant to paragraph 4.5.15, is also to have regard to the Applicant's physical and emotional ties with Australia when weighed against his or her ties in any other country.
The Tribunal finds that Mr Hou was granted permanent residence on 24 February 1995 having spent approximately two years here as a student and previously having visited Australia for business and tourist reasons. Following the grant of permanent residence, Mr Hou remained in Australia for approximately a year before going to China to establish his migration consultancy business. Mr Hou was registered as an Australian migration agent in April 1996 and was admitted as a Professional National Accountant of the National Institute of Accountants on 8 August 2001. He was also accredited by NAATI as a translator in the English and Mandarin languages on 1 April 1994.
Since 1996, Mr Hou has been based in China running his migration consultancy business, advising potential applicants for migration to Australia and assisting them in completing the necessary visa application requirements. From Mr Hou's account, it appears his business has proved successful and he has expanded his operations from his home city of Guangzhou to a number of cities in northern China where he states he is the only Australian registered migration agent operating. The Tribunal accepts Mr Hou's evidence that, in the course of his business, he organises seminars at which he expounds on the advantages of Australia as a destination for skilled migration. Mr Hou has provided a list of applicants whom he has assisted in obtaining visas and a further list of those whose applications are currently being processed. He has also provided the names of eight clients who have successfully migrated to Australia and are working in skilled occupations or professions.
Mr Hou has submitted evidence of the net economic benefits to Australia of skilled migration, and the Tribunal, in turn, recognises such benefits. However, in the Tribunal's view, while Mr Hou's business no doubt generally contributes to skilled migration, his motive in running the business is primarily one of promoting one of his private business interests. Moreover, while skilled migration is to the benefit of Australia, in the Tribunal's view, the nexus between Mr Hou's activities and a direct and tangible benefit is too remote for the purpose of the exercise of the s 13(4)(b) discretion.
The Tribunal notes Mr Hou's evidence that he is emotionally committed to Australia and is intending to return to Australia in early 2003 in order to establish a base for his business activities here, to purchase a home for his family, and to lay the groundwork for making other investments. In the Tribunal's view, his present financial commitment to Australia is relatively small, comprising two Commonwealth Bank accounts, with a balance of about $8,000 and $10,000 respectively, and some Commonwealth Bank shares owned by his wife. Mr Hou also has an investment in a lanolin importing company based in China but, at the present time, aside from promoting Australian exports, Mr Hou's investment in this company, which is a passive one, does not involve any direct investment in Australia and, the Tribunal assumes, is primarily focused on providing an economic benefit to its proprietors and those who work in that company.
Otherwise, the Tribunal notes that Mr Hou's wife and son are residing with him in China at the moment, that his home is there, and that the source of his income and most of his financial resources are there. He gave evidence that he and his family intend returning to Australia early in 2003 and the Tribunal notes that both his wife and son are Australian citizens. Mr Hou has no other family members in Australia, although he said that his parents intend applying to migrate here. However, the Tribunal notes his evidence that he has friends here.
In the Tribunal's view, after weighing up all these matters, it is not appropriate to exercise the Minister's discretion under s 13(4)(b) on the ground that Mr Hou does not satisfy the requirement of being "engaged in activities that the Minister considers beneficial to the interests of Australia", as interpreted in the decisions of the Federal Court and Tribunal cited above.
Mr Hou has also sought to rely on the exercise of the Minister's discretion under s 13(9)(c). The Tribunal notes the Australian Citizenship Instructions, paragraph 4.2.3, which requires that spouses overseas are usually required to meet the requirements set out in that paragraph, quoted above. Of the three requirements specified there, Mr Hou meets the second and third but fails to meet the first requirement, in so far as he is not being prevented from travelling to Australia because of a lack of Australian citizenship. Mr Hou's evidence is that he has been excluded from obtaining visas to travel to the USA and Japan by reason of the need for him, if travelling on a Chinese passport, to provide a letter from a sponsor when making his application for a visa. However, he has not actually applied for such visas. The Tribunal accepts that the need to provide a letter from a sponsor in such circumstances would be an inconvenience when his wife and son, travelling on Australian passports, would not be subject to such a requirement. However, the Tribunal views this as no more than an inconvenience and insufficient grounds for supporting an exercise of the Minister's discretion either under s 13(9)(c) or in relation to s 13(4)(b).
For these reasons, the Tribunal is not persuaded that there are sufficient grounds to support the exercise of the Minister's discretion to grant a certificate of Australian citizenship to Mr Hou under subsection 13(4)(b) or subsection 13(9)(c). However, it should be noted that this does not prevent Mr Hou reapplying for Australian citizenship in the future, and if he and his family return to Australia early in 2003 and re-establish their residence here, and if he makes Australia the base for his business operations, then he would be in a position to support a new application for Australian citizenship in the future.

I certify that the 40 preceding paragraphs are a true copy of the reasons for the decision herein of
Signed:         .....................................................................................
  Associate
Date/s of Hearing  13 March 2002
Date of Decision  12 April 2002
Representative for the Applicant              Self represented
Representative for the Respondent        Ms S Hamer, Solicitor