Lee and Minister for Immigration and Citizenship

[2007] AATA 1982

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2007] AATA 1982

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No  2007/3183

GENERAL  ADMINISTRATIVE  DIVISION		)
Re		LAI CHEE LEE

Applicant

And MINISTER FOR IMMIGRATION AND CITIZENSHIP

Respondent

DECISION

Tribunal Mr John Handley, Senior Member

Date23 November 2007

PlaceMelbourne

Decision The decision under review is affirmed.

(Sgd)  John Handley
Senior Member

  

CITIZENSHIP – applicant unable to satisfy residency requirements – discretion sought under s 13(4) of 1947 Act – applicant sold 14 software packages between 2001 and 2006 manufactured by an Australian company to clients in Asia – activities of the applicant not beneficial to the interests of Australia – decision affirmed

Australian Citizenship (Transitionals and Consequentials) Act 2007 (Cth)

Australian Citizenship Act 1948 (Cth) s 13(4)

Australian Citizenship Act 2007 (Cth)

Minister for Immigration, Local Government and Ethnica Affairs v Robers (1993) 29 ALD 656

Re Lan and Minister for Immigration and Multicultural Affairs [2001] AATA 362

Re Singh and Minister for Immigration and Multicultural Affairs [1998] AATA 329

REASONS FOR DECISION

23 November 2007   Mr John Handley, Senior Member

1.      Ms Lee was granted permanent residency of Australia in December 1988.  She has lived in Singapore since approximately 1993.  By this application she seeks review of a decision which denied application for Australian Citizenship.

2.      This application is to be determined under the provisions of the Australian Citizenship Act 1948 (the 1948 Act).  That Act was repealed by the Australian Citizenship Act 2007 (the 2007 Act) which commenced operation on 1 July 2007.  The Australian Citizenship (Transitionals and Consequentials) Act 2007 (the Transitionals and Consequentials Act) provides that rights accrued continue to apply as if the new Act had not been made. The citizenship application was made on 2 March 2006. Accordingly the 1948 Act only will be considered in this review.

3.      Ms Lee concedes that she cannot satisfy s 13(1)(d) and (e) of the 1948 Act because the aggregate periods of time spent in Australia in the last two and five years respectively have been well short of the statutory minimum requirement.  In the two years prior to lodgement of the application Ms Lee resided in Australia for 35 days and in the period of five years prior to lodgement she resided in Australia for 44 days.  Accordingly this review is concerned with the discretionary provisions under s 13(4) of the 1948 Act which permits the deeming of a period of time where an applicant was not present in Australia as a period of time where that person was present, if the person was engaged in activities that the Minister considers beneficial to the interests of Australia.

4.      Ms Lee said at the hearing that she had been a student in Australia in the 1970's and then returned to Singapore.  In 1988 she, her husband and infant child migrated to Australia where they resided permanently for five years.  Her husband was transferred by his employer to Singapore where they have subsequently resided.  Ms Lee's daughter is a full time student in Melbourne and is currently completing VCE.  She intends to attend University in Melbourne next year.  Ms Lee also has a sister who resides in Melbourne and is an Australian citizen.  Ms Lee and her husband previously owned real estate in Australia and her husband's superannuation investments are maintained here.  She said that she makes application for citizenship because she has a sense of belonging and loyalty to Australia.

5.      Unfortunately, Ms Lee's past history and her sentiments are not considerations permitted under the legislation.  By reason of her circumstances, especially the absence of a residency qualification over the last two and five years respectively, this review will be confined to s 13(4) of the 1948 Act.

summary of the facts

6.      Ms Lee is the sole proprietor of the business Max Tech Computer Services which is registered in Singapore.  The business employs one part time employee.  Ms Lee said that Max Tech is the sole distributor of software products manufactured by Princeton Softech Australia Pty Ltd which is registered in New South Wales.

7.      Ms Lee said that she has negotiated with a number of corporate clients (Hong Kong Stock Exchange, Singapore Airlines, Hong Kong Port Authority, Hitachi and Fed Express) to purchase and install the software products, which assist the productivity of her corporate clients.  She also negotiated and contracted with those clients to purchase in each of 12 years a maintenance subscription which may include the production of another software product which would update the product initially purchased.  Ms Lee described her role as consulting with the clients and being available to assist them.  She said that by promoting, selling and supporting the products made by Princeton, she was exposing it into the ASEAN region.  Consequently Princeton employed people in Australia and paid taxes.  She submitted her association with Princeton therefore was an activity which was beneficial to the interests of Australia.

8.      Ms Lee also contracts from Singapore with Computer Power, another corporation registered in Singapore.  She markets and sells products made by it to other clients in Singapore and Malaysia.

9.      Ms Lee said that in the last five years she has contracted with Princeton to provide maintenance software only with respect to the software products previously installed.  On the occasions that maintenance software has been provided, Princeton would pay her 50 per cent of the software cost.  Between pages 76 and 92 of the T‑documents are a number of invoices from Princeton to Max Tech.  Ms Lee said that the invoices represented the totality of the transactions between Max Tech and Princeton in the same five year period.  The date of each invoice and the amount received by Princeton, net of the 50 per cent fee paid to Ms Lee are summarised below and expressed in US dollars:

Date	$US	Client
01/04/2006 to 31/03/2007	3,660.50	Singapore Airlines Ltd
01/04/2006 to 31/03/2007	3,834.60	Singapore Airlines Ltd
01/04/2005 to 31/03/2006	3,486.00	Singapore Airlines Ltd
26/11/2004 to 25/11/2005	5,610.00	Hong Kong Exchange
01/04/2004 to 31/03/2005	3,486.00	Singapore Airlines Ltd
26/11/2003 to 26/11/2004	6,322.00	Hong Kong Exchange
01/04/2003 to 31/03/2004	3,486.00	Singapore Airlines Ltd
01/04/2002 to 31/03/2003	4,150.00	Hitachi Asia Ltd
01/04/2002 to 31/03/2003	3,486.00	Singapore Airlines Ltd
26/11/2001 to 25/11/2002	6,613.00	Hong Kong Security
31/08/2001 to 30/08/2002	1,746.00	MPA Singapore
01/04/2001 to 31/03/2002	3,486.00	Singapore Airlines Ltd
01/04/2001 to 31/03/2002	4,263.00	Hitachi Data Systems
15/02/2001 to 14/02/2002	2,370.00	Federal Express

conclusion and reasons for decision

10.     For reasons which will follow I am not satisfied that Ms Lee can demonstrate that she has been engaged in activities that are beneficial to the interests of Australia, within the meaning of the legislation or relevant case law or the Minister's Policy Guidelines.

11.     It was put by her that by contracting with Princeton, its profile in ASEAN countries was enhanced.  Additionally by contracting with Princeton it earned revenue which permitted it to employ Australian persons and pay taxes.

12.     The evidence concerning the activities of Princeton and its operations was scant.  Despite it being described as an Australian company it has recently been acquired by IBM.  I do not understand that by contracting with Princeton to supply software products to ASEAN countries that it would amount to an activity beneficial to the interests of Australia within the meaning of s 13(4) of the 1948 Act.  Any benefit surely would be in the interests of Princeton, and probably IBM (a multinational corporation) and those interests are of a private nature.

13. With respect to relevant case law, the decision of Einfeld J in Minister for Immigration, Local Government and Ethnica Affairs v Robers (1993) 29 ALD 656 remains the leading authority on the interpretation of the language of s 13(4) of the 1948 Act. His Honour decided that the phrase activities beneficial to the interests of Australia were intended to mean activities that provided some advantage to Australia whether commercial or otherwise; activities which were in the public interest of Australia whether general or non-specific in character; activities which provide an objective benefit to Australia; activities which are not in the private interests of the applicant for citizenship.

14.     In Re Lan and Minister for Immigration and Multicultural Affairs [2001] AATA 362 the Tribunal decided that the applicant was engaged in activities beneficial to the interests of Australia. The applicant attracted investment into Australia by selling insurance services to overseas corporations. He employed three persons on a full time basis in Australia. The value of premiums sold by him exceeded $2M. It was found that the nature of his activities were in the nature of investment into Australia. Despite him being a resident of Hong Kong it was also found that his commercial activities were in the nature of furthering Australia's interests overseas. Those circumstances are very different to the activities described by Ms Lee.

15.     In the present case, and without any disrespect to Ms Lee, her sole connection to Australia, other than her daughter attending a school in Melbourne as a boarder and a sister who is an Australian citizen, is to engage, at least in recent years, with an Australian company to provide 14 maintenance software packages between 15 February 2001 to 1 April 2006.  In those circumstances I would be obliged to find 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 Roberts' case (refer Re Singh and Minister for Immigration and Multicultural Affairs [1998] AATA 329 at paragraph 11).

16.     I would be obliged also to find that the activities of the applicant are inconsistent with Ministerial Policy, particularly that appearing at paragraphs 4.3.21 (refer T‑documents, p33).  The applicant is not required to work overseas, she does not frequently travel abroad (but resides almost exclusively in Singapore), she is not engaged in activities of a social, cultural, economic or political nature which are widely recognized as being in the beneficial interests of Australia, as recognized by the Australian community or by persons prominently associated with the applicant's field of endeavour.

17.     For the above reasons I am satisfied that the decision under review must be affirmed.

I certify that the 17 preceding paragraphs are a true copy of the reasons for the decision herein of:
Mr John Handley, Senior Member

Signed:         Grace Carney, Personal Assistant

Date of Hearing  16 November 2007
Date of Decision  23 November 2007
Solicitor for the Applicant          Self Represented
Solicitor for the Respondent     Australian Government Solicitor