Kim and Minister for Immigration and Ethinic Affairs
[2002] AATA 102
•31 January 2002
DECISION AND REASONS FOR DECISION [2002] AATA 102
ADMINISTRATIVE APPEALS TRIBUNAL )
) No N2001/1536
GENERAL ADMINISTRATIVE DIVISION )
Re HYOUNG JIN KIM
Applicant
And MINISTER FOR IMMIGRATION AND ETHNIC AFFAIRS
Respondent
DECISION
Tribunal Senior Member M D Allen
Date31 January 2002
PlaceSydney
ADMINISTRATIVE APPEALS TRIBUNAL ) No N2001/1536
)
GENERAL ADMINISTRATIVE DIVISION )
Re: HYOUNG JIN KIM
Applicant
And: MINISTER FOR IMMIGRATION
AND MULTICULTURAL
AFFAIRS
Respondent
DECISION
Tribunal Senior Member M D Allen
Date 31 January 2002
Place Sydney
DecisionFOR the reasons given orally at the conclusion of the hearing in this matter, the decision under review is SET ASIDE and the Tribunal substitutes in lieu thereof its decision, namely THAT:
This matter is to be remitted to the Respondent with the direction that discretion in paragraph 13 (4) (b) of the Australian Citizenship Act 1948 be exercised in the Applicant's favour.
(Sgd) M.D. ALLEN
.............................
Senior Member
CATCHWORDS
CITIZENSHIP – Application for grant of Australian Citizenship in abridged time on basis of activities outside Australia which were beneficial to Australia. Individual circumstances of Applicant considered.
Australian Citizenship Act 1948 ss13(4)
Daintey v Minister for Immigration and Ethnic Affairs 6 AAR 259 followed
Minister for Immigration Local Government and Ethnic Affairs v Roberts 41 FCR 82 applied
McCarthy v Minister for Immigration etc 30 ALD 447
Pai v Minister for Immigration etc 20 AAR 342
Chai v Minister for Immigration etc 36 ALD 751
REASONS FOR DECISION
Senior Member M D Allen
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 Respondent of a copy of the decision that was in fact made, the Respondent pursuant to Sub-section 43(2A) of the Administrative Appeals Tribunal Act 1975 requested the Tribunal to furnish to the Respondent a statement in writing of the reasons of the Tribunal for its decision.
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.
The said transcript is annexed hereunto and furnished to the Respondent and to the Applicant 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:
..................................................................................……………………………….Associate
Date of Hearing 31 January 2002
Date of Decision 31 January 2002Solicitor for Applicant Mr R. Turner, Yandell Wright Stell Lawyers
Solicitor for Respondent Ms C. Bateup, Blake Dawson Waldron
DRAFT DECISION
ADMINISTRATIVE APPEALS TRIBUNAL
Matter No N2001/1536
By MR M.D. ALLEN, Senior Member
KIM and MINISTER FOR IMMIGRATION AND ETHNIC AFFAIRS
SYDNEY
THURSDAY, 31 JANUARY 2002MR ALLEN: In this matter, pursuant to an application lodged 8 October 2001, the applicant seeks review of a decision to refuse him his application for Australian citizenship. The real question in the matter devolved around a consideration of paragraph 13(4)(b)(I)(C) of the Australian Citizenship Act 1948, which reads inter alia:
For the purposes of the application of subsection 1 in relation to the applicant for the grant of a certificate of Australian citizenship.
(b) Subject to paragraph (a) the Minister may in the Minister's discretion - (1) treat a period during which the applicant (A) was a permanent resident, (B) was not present in Australia, (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 has not been disputed in this particular case that the applicant is a permanent resident of Australia, but has not been present in Australia for the requisite periods in which to automatically entitle him to a grant of citizenship.
As stated earlier, the whole question devolves around whether the period the applicant has spent outside Australia and in Korea, in his case, and during that period he engaged in activities which would then widen the Minister's discretion. How the particular provisions should be applied are set out in instructions issued by the Minister, those instructions - the relevant parts - can be found at page 22 of the documents prepared for the Tribunal pursuant to section 37 of the Administrative Appeals Tribunal Act 1975, and read inter alia at paragraph 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 usually only be exercised if all of the following requirements are satisfied:
(a) The applicant was engaged in overseas activities of an economic nature which are clearly beneficial to the interests of
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8Auscript Pty Ltd 2002Australia, and are widely recognised as such by either the Australian community, prominent persons associated with their field of endeavour.
(b) The applicant has established a prior primary identification with Australia, 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.
At the outset, so far as relates to those instructions as has been pointed out by the Tribunal in re Daintey v Minister for Immigration and Ethnic Affairs 6 AAR 259, they are not binding on this Tribunal, although certainly regard must be had to them.
I will say here and now that the applicant has been involved in activities of an economic nature. He has commitments here and he has family members established in the country. Dealing briefly with the applicant's background, it would seem that he came to Australia at aged 16 in January 1991 with his family. He attended Normanhurst Boys High School and after leaving that institution returned to Korea as he wished to undertake further studies in Korean history. His father is an Australian citizen as are his two sisters. His parents own a property in suburban Sydney and my understanding from the evidence is that is their normal place of abode.
Whilst resident in Korea, as a result of an introduction by mutual acquaintances, he engaged in employment with an Australian company Orient Industries Pty Ltd. The principal of that company is a Mr Cho. It would seem that Mr Cho who impressed me as a very astute business man, identified an opening for exports in Korea when the World Trade Organisation forced a loosening of that country's markets. His company, Orient Industries Pty Ltd, is now engaged in the export of Australian mozzarella type cheese to Korea. That cheese is apparently sold in South Korean supermarkets and more importantly is used in the making of pizzas. Interestingly enough, Mr Cho pointed out, pizzas are a form of western food which are becoming increasingly popular with the younger generation of Koreans.
The agreement between Orient Industries Pty Limited and the applicant is set out at document T14 page 60 of the section 37 documents. I note it bears the date 11 February 1999 and although it refers to the applicant having specialist skills it would appear that those skills relate more in his ability to integrate into Korean culture and knowledge of the language and mores of that country than any specific marketing skills.
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8Auscript Pty Ltd 2002As Mr Cho pointed out, you have to understand the business culture of the country to do business there and in particular a lot of the business is done on a personal basis and certainly on a face to face basis. In this regard the applicant Mr Kim can be described as Mr Cho's alter ego. Indeed, at one stage of his evidence without at all being disparaging to the applicant Mr Cho referred to him as his boy there. I gathered from Mr Cho's evidence that he requires anybody who represents him in Korea to be somebody in who he has implicit trust.
He has this regarding the applicant having been introduced by mutual acquaintances, in other words the applicant coming to him recommended and he has now observed him in his work. As Mr Cho said, I don't want to employ a new person but if it is impossible for the applicant to go back to Korea then I will have to find someone else. In the interim since July of 2001, Mr Cho has through his company supported the applicant back in Australia and it is the intention of both the applicant and Mr Cho that if the applicant is granted Australian citizenship the applicant will return to Korea and continue in the task he was doing.
It might be mentioned that the applicant's seeking of Australian citizenship is not entirely altruistic, it arises from the fact that although he has permanent residency in Australia as a citizen of South Korean he has now reached the age of when he is liable for compulsory military service. As an Australian he would be excused this. Another document which is to be taken into account is an agreement between Orient Industries Pty Limited and a Mr Chung of Haejin International Corporation which is dated 14 December 1998. That document points Mr Chin as:
One of its representatives in Korea for the purpose of conducting on behalf of the company market research and promotional activities.
Interestingly enough, clause 5(2) of the said agreement states with effect from 1 February 1999:
The company agrees to reimburse the marketing representative up to a monthly maximum of US$4000 for certified salary, overtime and other statutory remuneration benefits to be paid to himself and selected personnel to be located in the office for the purpose of promoting the products to be supplied by the company.
I deduce from that that the time of the agreement between Orient Industries Pty Limited as personified by Mr Cho and Mr Chung it was contemplated that there would be other persons to advance the
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8Auscript Pty Ltd 2002interest of Orient Industries Pty Limited in Korea. There is real evidence that there has since the applicant has been appointed in Korea an increase in the value of exports of cheese established by Orient Industries. In the financial year 1998 to 1999 there was exported some $4.57 million worth of dairy products. In the year 1999 to 2000 in the financial year, that rose to $6.5 million, that is to say a 40 per cent increase, whereas in the financial year 2000 to 2001 exports reached the sum of $11 million.
This cheese is sourced from Dairy Farmers Co-Operative in Toowoomba, Queensland. As I said during the course of argument, I am taking official notice sitting here of the fact that in states such as Queensland, the dairy industry following deregulation is depressed and of my own knowledge of Toowoomba an increase in the through put of a milk factory in that town would benefit the wider community. Since Mr Kim has returned to Australia in order to avoid his military obligations there has been, according to Mr Cho, an 11 per cent decrease in exports. That 11 per cent could in effect be higher when seasonal adjustments are made.
It would appear, as I said, that the task of Mr Kim is to act as Mr Cho's alter ego, he reports to him twice a day and it is his duty to liaise with customers to take on board any complaints and report back as to what they are to see the customers are being served and generally to obtain increases in market share where he can but more importantly by dent of personal contact maintain the market share obtain by Orient Industries Pty Limited.
The term in the Act "activities beneficial to the interests of Australia" has received judicial interpretation in Minister for Immigration, Local Government and Ethnic Affairs v Roberts 41 FCR 82 where at page 87 Einfeld J said:
It seems to me that the term "activities beneficial to the interests of Australia" means something in the nature of activities which provide some advantage to Australia whether commercial or otherwise. The concept necessarily connotes some public interest of Australia even if of a general or non specific character and means more than the private interests of the respondent. The section requires some objective benefit to Australia.
Now there have been very many cases in the tribunal where individual circumstances have been considered. As was pointed out by Deputy President McMahon in re McCarthy v Minister for Immigration, Local Government and Ethnic Affairs 30 ALD 447 at 448, for example:
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8Auscript Pty Ltd 2002A claim that the applicant's employer has enhanced the
reputation of its Australian parent company and Australian companies in general must be regarded as falling short of demonstrating activities in which the applicant was engaged were beneficial to the interests of Australia.
Similarly as has been pointed out, the private interests of the respondent are not such as to benefit Australia therefore the simple reason that a company increases its profit and thereby pays more tax has been held not to be activities beneficial to the interests of Australia as stated by Einfeld J, "there must be objective benefit". As was pointed out by Deputy President McDonald in re Pai v Minister for Immigration, Local Government and Ethnic Affairs 20 AAR 342 at 344:
The benefit must have accrued to Australia at the time of application that is to say it must be more than just a promise of future benefit. However, activities involving the promotion of Australian exports may themselves be considered to amount a present benefit.
Deputy President McDonald returned to the same theme in the case of Chai v Minister for Immigration, Local Government and Ethnic Affairs 36 ALD 751 at 758 where he said:
It is clearly in Australia's interests to promote and achieve exports and technology and manufactured goods to Southeast Asia and China.
In this matter it was strongly argued by the respondent that the applicant's activities were not sufficiently broadly based and the applicant himself did not engage in activities beneficial to Australia in that he did no more than act according to instructions given to him by Mr Cho. I agree that the applicant Mr Kim was no more than a foot soldier in the enterprise however, it seems to me that on the figures provided and the evidence of Mr Cho as the way business is done in Korea that there has been a real effort on the part of the applicant and it can be said that his work has made a difference and has at the very least lead to a maintenance of the value of exports.
So far as benefit to the wider Australian community is concerned, certainly the benefits to Orient Industries Pty Limited whatever that might entail would not be sufficient however, in this matter it seems to me that the applicant through Mr Cho has been able to point to a wider benefit namely the contract with Dairy Farmers and the increased production of that particular firm and the Darling Downs area. So that although this is a matter which falls narrowly within the concepts I do find that the applicant has engaged in activities which benefit Australia.
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8Auscript Pty Ltd 2002The decision under review will therefore be set aside and this matter remitted to the respondent with a direction that the discretion in section 34(B) of the Australian Citizenship Act be exercised in the applicant's favour. I would only add that it is highly desirable that a decision be made on this matter as soon as possible as the applicant as his employer are desirous that he take up his position in Korea as soon as possible.
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