Ip and Minister for Immigration and Multicultural Affairs

[2001] AATA 357

DECISION AND REASONS FOR DECISION [2001] AATA 357

ADMINISTRATIVE APPEALS TRIBUNAL      )

)     No  n2000/1768

GENERAL ADMINISTRATIVE DIVISION          )          

Re      MUI  KING  (YVONNE)  IP        

Applicant

And    MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

Respondent

DECISION

Tribunal       Senior Member M D Allen

Date5 April 2001

PlaceSydney

ADMINISTRATIVE APPEALS TRIBUNAL  )         No   N2000/1768
  )  
GENERAL ADMINISTRATIVE DIVISION     )

Re:     MUI KING (YVONNE) IP

Applicant

And:     MINISTER FOR IMMIGRATION

AND

MULTICULTURAL AFFAIRS

Respondent

DECISION

Tribunal              Senior Member M D Allen

Date  5 April 2001

Place                   Sydney

DecisionFOR the reasons given orally at the conclusion of the hearing in this matter, the decision under review is AFFIRMED.

(Sgd)  M.D. ALLEN

.............................

Senior Member
CATCHWORDS
CITIZENSHIP – Application for grant of citizenship notwithstanding failure to meet residency requirements.  Applicant submitted she had engaged in activities beneficial to the interests of Australia.  Those activities beneficial to the Applicant's employer but not to Australia.  Application refused.

Australian Citizenship Act 1948 - s13

Minister for Immigration, Local Government and Ethnic Affairs v Roberts 29 ALD 656
Ho v Minister for Immigration & Ethnic Affairs 34 ALD 664

REASONS FOR DECISION

Senior Member M D Allen

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

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

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

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

Senior Member M D Allen

Signed:         Kwai-Ling Wong
          ..................................................................................……………………………….

Associate

Date of Hearing  5 April 2001
Date of Decision  5 April 2001

Representative for Applicant     Applicant was self-represented
Advocate for Respondent          Ms H Dejean,
  Australian Government Solicitor's Office

DRAFT DECISION  

ADMINISTRATIVE APPEALS TRIBUNAL

Matter No 2000/1768
By Mr M.D. Allen, Senior Member
MUI KING YVONNE IP and MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS
SYDNEY, THURSDAY, 5 APRIL 2001

MR ALLEN: In this matter the applicant, pursuant to an application lodged with the Tribunal on 27 November 2000, sought review of a decision by a delegate of the respondent, which decision refused her claim for Australian citizenship. The reason for the failure of the applicant to obtain the grant of Australian citizenship was that she did not meet the criteria set out in paragraphs 13(1)(d) and 13(1)(e) of the Australian Citizenship Act 1948 (as amended). Those subparagraphs require an applicant for Australian citizenship to have resided in Australia for a period of one year during the preceding two years before application and a period of two years during the preceding five years.

The application in this case was made on 11 March 2000. The relevant period assessment therefore spans the period March 1995 to March 2000. It is, as I understand, conceded by the applicant that she does not meet the criteria in paragraphs 13(1)(d) and 13(1)(e). It can be seen more particularly in the chronology tendered by the respondent which became exhibit R2 in these proceedings and which was not challenged by the applicant.

Basically the chronology sets out that the applicant was granted permanent residence in Australia on 20 March 1996, she then arrived in Australia on 15 June 1996 and on 22 June 1996 departed for Hong Kong where she took up employment in the Hong Kong office of HIH Insurance Limited.  Apart from a short visit to Australia in 1997 for both work purposes and for holidays the applicant did not return to Australia until 2 September 1999 and she again recommenced employment with HIH Insurance Limited in November 1999 where she now holds a senior position.

The applicant's claim today is that her employment by HIH Insurance Limited in Hong Kong was such that it was for the benefit of Australia and she therefore comes within the ameliorating provisions of subsection (4) of section 13 of the Australian Citizenship Act and that the Minister, hence his delegates, should exercise their discretion to grant citizenship notwithstanding non compliance with paragraphs 13(1)(d) and (e). Subsection (4) of section 13 reads, inter alia:

For the purposes of the application of subsection (1) in relation to an applicant for the grant of a certificate of Australian citizenship:

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(a)the Minister shall not take into account, as a period during which the applicant has been present in Australia as a permanent resident, any period during which the applicant has been confined in a prison …

That subsection obviously doesn't apply here but subsection (b) then goes on to provide:

(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 …

It is this discretion that the applicant seeks to have exercised in her favour.  The original claim was accompanied by a letter from solicitors acting on the applicant's behalf and set out the details of her employment with HIH Insurance Limited Hong Kong.  I would also more particularly refer to the applicant's submission made to the Tribunal today and which became exhibit A1 in these proceedings.  In that document the applicant states:

I, so does my employer HIH Insurance reckon that the activities I engaged during my secondment in Hong Kong office did bring benefits to Australia.  These benefits are economical, tangible and immediate and are beneficial to the public interest of Australia.  Information and evidence are clearly stated in my application for citizenship, employer's letter, and application for review of decision.

She there sets out the tangible benefits that there were new positions created in Australia as a result of her work in the Hong Kong office.  There was an extra revenue inflow into Australia; that of course had a spin off in that there was extra tax paid by HIH Insurance Limited on that revenue and that tax itself was of a benefit.  Plus there was the creation of insurance business for an Australian company.  More particularly, in an earlier document which accompanied her application to this Tribunal, the applicant said that her employment in HIH Hong Kong offices led to:

1.The creation of several new positions in HIH Sydney office (not just creation of employment opportunity.

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2.Revenue flow to Australia (several million dollars)

3.Increase taxation contribution to Australia

Accompanying her original application there was a letter in support by HIH Insurance which states, inter alia:

In support of her application, we certify that Ms Ip was employed by HIH Insurance Limited and required to work in the company's Hong Kong office in the position of Re-insurance/Financial Controller from 23 June 1996 to 28 February 1999.

In this capacity Ms Ip made a significant contribution to the success and revenue growth of the Australian company.  As a result, Ms Ip was engaged in activities that were clearly beneficial to the interests of Australia.  Ms Ip's activities contributed directly to the revenue flow of the company and to creating employment opportunities here in Australia.

Ms Ip's considerable and unique range of skills and experience were being used to the advantage of the company thereby benefiting the Australian economy and the country as a whole throughout the period of her assignment in Hong Kong.

There is one point, however, where the facts stated by the applicant today seem to diverge and that is that at the time of accepting her position with HIH Insurance the applicant was not only employed by another insurance company in Hong Kong but she stated she was a director of that company.  I infer from that that she was in fact resident in Hong Kong when she applied for and obtained the position with HIH.  That is to say it was not a case of an employee of HIH Insurance Limited in Australia who had certain skills and was sent because of those skills to the Hong Kong office, rather it was a fact that the person in Hong Kong gained employment because of her skills with HIH Insurance Limited and those skills were to be utilised in Hong Kong.  As the applicant said:

The position was negotiated over the telephone and I was then resident in Hong Kong.

I have no doubt, however, that the activities of the applicant did benefit her employer in its business in that she was responsible for and contributed to growth of the company's business in Hong Kong.  That of course did have, to use a colloquialism, spin offs in that extra staff were no doubt employed in Australia to cope with that work, the company gained extra revenue and as a result of the extra revenue tax was paid.

However, it is not a simple matter of that there must be benefit to an Australian citizen and I use the term citizen to refer to an incorporated body, ie HIH Insurance Limited can be regarded as an Australian corporate citizen.

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The requirement is that the activities must be beneficial to the interests of Australia.

That term was originally discussed by his Honour Einfeld J in Minister for Immigration, Local Government and Ethnic Affairs v Roberts 29 ALD 656 at 660. That case, incidentally, concerned a person who had been resident in Australia since the age of 4 years but in his 20s had left the country to work on oil rigs overseas. He had never, for whatever reason, taken out Australian citizenship. It was held that his working on oil rigs, although it would have gained him skills which he could have utilised back in Australia, was not in the public interest. At page 660 his Honour said:

It seems to me that the term "activities beneficial to the interests of Australia" means something in the nature of activities which provide some advantage to Australia, whether commercial or otherwise.  The concept necessarily connotes some public interest of Australia, even if of a general or non-specific character, and means more than the private interests of the respondent.  The section requires some objective benefit to Australia.

That particular passage was taken up by Deputy President McMahon in Ho v Minister for Immigration & Ethnic Affairs 34 ALD 664. At paragraph 27 of his decision, which is at page 670, Deputy President McMahon says of subsection (4) of section 13, paragraph (b):

The paragraph is intended to provide some flexibility in the calculation of the periods referred to in s 13(1)(d) and (e).  It is unlikely that in the application of the minister's discretion, a period may be treated as a period of presence in Australia only when the applicant is engaged for 24 hours per day, seven days per week in activities beneficial to the interests of Australia.  It is more likely that the activities referred to should be the substantial activities of the applicant for limited periods, being intervals intended to fill in the gap between actual presence in Australia and the requirements for presence set out in the statute.

I would only interpose here that that really has been complied with in this case in that it is clear that the applicant had a continual working presence in Hong Kong for the Australian company.  However, the gravamen of the Deputy President's decision occurs in the following where he continues in the passage which is paragraph 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.

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The crux, it seems to me, of that passage is that it is the allowance of flexibility in exceptional circumstances and again averting back to the decision of Deputy President McMahon account must be taken of paragraph 25:

It can not be said that commercial activities designed to promote the sales of one or two companies are activities of a kind intended to be covered by the ameliorative provisions of this paragraph.  Something more is necessary, and that something must be of a public character.

Earlier the Deputy President had referred to and applied the passage from Minister for Immigration, Local Government and Ethnic Affairs v Roberts referred to above.

In this matter it is quite clear on the evidence before me that the applicant was a valued employee of HIH Insurance Limited and her activities contributed manifestly to the success of that company's Hong Kong subsidiary.  However, all of the activities strike me as activities which conferred a very definite benefit upon HIH Insurance Limited and its shareholders.

I concede that an increase in tax payable is of some benefit to the treasury of the Commonwealth of Australia but what is required of the activities of the applicant is that somehow they must be some objective benefit and must be of a public character.  To me the activities are not of a public character as opposed to the private and domestic advantage of HIH Insurance Limited.

It seems to me that on the facts of the matter the case for the exercise of the discretion has not been made out and I therefore affirm the decision under review.

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