Lusan and Department of Immigration and Multicultural Affairs - [2000] AATA 687

DECISION AND REASONS FOR DECISION [2000] AATA 687

ADMINISTRATIVE APPEALS TRIBUNAL )

) No N2000/20

GENERAL ADMINISTRATIVE DIVISION       )
           Re      HUNG LO SHAN LUSAN
  Applicant
           And    DEPARTMENT OF IMMIGRATION AND MULTICULTURAL AFFAIRS
   Respondent

DECISION

Tribunal Ms G Ettinger, Senior Member

Date10 August 2000
PlaceSydney

Decision      The Administrative Appeals Tribunal affirms the decision under review of the Department of Immigration and Multicultural Affairs dated 8 December 1999 which found that the discretionary powers pursuant to section 13(4)(b)(i) of the Australian Citizenship Act 1948 ("the Citizenship Act") should not be exercised to approve Australian citizenship for Ms Hung Lo Shan Lusan.
  ..............................................
   Ms G Ettinger
  Senior Member
CATCHWORDS
Citizenship - residency requirements not met - whether discretion should be exercised to find that Ms Hung's activities outside Australia are beneficial to the interests of Australia during the relevant periods - decision affirmed

LEGISLATION
Australian Citizenship Act 1948 ss. 13(1), 13(1A) and 13(4)(b)(i)
Australian Citizenship Instructions 1997

CASES
Manbir Singh and Minister for Immigration and Multicultural Affairs (AAT 12855, 5 May 1998)
Minister for Immigration, Local Government and Ethnic Affairs and Roberts (1993) 113 ALR 151
Re Drake and Minister for Immigration and Ethnic Affairs (No.2) (1979) 2 ALD 634
Re Ho and Minister for Immigration and Ethnic Affairs (1994) 34 ALD 664
Re McCarthy v Minister for Immigration, Local Government and Ethnic Affairs (1993) 30 ALD 447
Tse and Department of Immigration and Multicultural Affairs (AAT 8378, 13 November 1992)
Re Tsui and Minister for Immigration, Local Government and Ethnic Affairs (1991) 24 ALD 236

REASONS FOR DECISION

10 August 2000 Ms G Ettinger Senior Member

The decision under review before the Administrative Appeals Tribunal ("the Tribunal") was the decision of the Department of Immigration and Multicultural Affairs ("the Department") dated 8 December 1999 (T1/14) which decided that the discretionary powers pursuant to section 13 of the Australian Citizenship Act 1948 ("the Citizenship Act") should not be exercised to approve Australian citizenship for Ms Lusan Lo Shan Hung, the Applicant in these proceedings.
The Applicant was self represented and attended with her husband, Mr Victor Geok Hong Tan. The respondent was represented by Ms P Chadderton, advocate of the Department. Oral evidence was given by Ms Hung, Mr Tan and Mr Thomas Corkhill, partner of Grant Thornton Hong Kong, Chartered Accountants ("Grant Thornton").
ISSUE BEFORE THE TRIBUNAL
The issue before the Tribunal was whether the discretion available pursuant to section 13(4)(b)(i) of the Citizenship Act should be exercised to treat the period in which the Applicant was a permanent resident although not present in Australia as a period in which the Applicant was present in Australia as a permanent resident because she was engaged in activities that the Minister considers beneficial to Australia, so that the Applicant, Ms Lusan Lo Shan Hung, should be granted Australian citizenship.
LEGISLATIVE FRAMEWORK
The relevant legislation in this matter is section 13 of the Citizenship Act, which follows as relevant.
Section 13(1) provides that:
"13 (1)     Subject to this section, the Minister may, in the Minister's discretion, upon application in accordance with the approved form, grant a certificate of Australian citizenship to a person who satisfies the Minister 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 2 years immediately preceding the date of the furnishing of the application;
(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 2 years during the period of 5 years immediately preceding the date of the furnishing of the application;
…
(1A)     The Minister shall not grant a certificate of Australian citizenship to a person under subsection (1) at a time when the person is not present in Australia unless:
(a)       the person is a permanent resident; and
(b)the Minister considers that the person is engaged in activities outside Australia that are beneficial to the interests of Australia."
Where an Applicant fails to meet the criteria in subsections 13(1)(d) and (e), he or she may be assessed under subsection 13(4) of the Citizenship Act. Subsection 13(4) as relevant, provides:
"For the purposes of an application of subsection (1) in relation to an applicant for the grant of a certificate of Australian citizenship:
…
(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;
…"
I was mindful of the decision of Brennan J in Re Drake and Minister for Immigration and Ethnic Affairs (No.2) (1979) 2 ALD 634 in relation to the role of ministerial policy in guiding decision-makers including this Tribunal.
The Australian Citizenship Instructions 1997 ("Australian Citizenship Instructions") which I considered, follow as relevant.
"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 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 Australian parent company and Australian companies in general, falls short of demonstrating the applicant's activities were beneficial to the interests of Australia." (AAT in McCarthy.)

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 usually 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 successful 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 either by:
the Australian community generally; or
prominent persons associated with their field of endeavour (for example, people engaged in aid programs, artists and entertainers of world standing).
(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…
(c) The applicant is in Australia. If the applicant is overseas, the discretion will not normally be exercised.
4.5.15 In assessing (b) above:
The primary identification should be evidenced by reference to matters prior to the application for citizenship.
Relevant factors include 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 of 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 more 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 a critical point."

EVIDENCE BEFORE THE TRIBUNAL

The Tribunal had before it documents lodged pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 and the following exhibits:
ITEM   DATE NAME
Document 2 in the documents provided by the Applicant                   Exhibit A1
Document 4 in the documents provided by the Applicant                   Exhibit A2
Document 3 headed "Family Ties" together with death certificate of the Applicant's father  Exhibit A3
Document 1 headed Chronology – Travel Summary               Exhibit A4
Document 5 - first six pages in the documents provided by the Applicant               Exhibit A5
Document 6 of the documents provided by the Applicant                   Exhibit A6
Statement of Thomas Corkhill      12 April 2000 Exhibit A7
Analysis of Tribunal Documents              Exhibit R2

EVIDENCE OF THE APPLICANT MS HUNG LO SHAN LUSAN

Ms Hung, whose date of birth was 15 June 1966, and who is married, lodged an application for Australian citizenship on 26 March 1999 (T1/21-24) with the Department.
The Applicant's claim for citizenship was rejected by the Department on 8 December 1999 (T1/15-20) on the grounds that she did not fulfil Australian residency requirements. Discretion was not exercised pursuant to section 13(4)(b)(i) of the Citizenship Act to include periods where the Applicant was a permanent resident but not present in Australia as periods where the Applicant was present in Australia on the grounds that her activities were not beneficial to the interests of Australia. She appealed to the Tribunal on 1 January 2000, and in her oral evidence and documents sought to deal with the various heads which may be considered pursuant to the Citizenship Act and the Australian Citizenship Instructions.
family ties
Ms Hung gave evidence that since her father died on 6 January 1997 (Exhibit A3), she has had no substantial family ties in Hong Kong. She said that while she did keep in contact with an aunt on her father's side, she has not kept in contact with either her mother or brother and was unaware where they were currently living. She also said that neither of her sisters resided in Hong Kong. She gave evidence that her elder sister Yvonne has since 1996, lived in Tsingdao, China with her family, while her second sister Anne, an Australian citizen, and married to an Australian, lived in Tokyo, Japan. She also said that her sister Anne maintained a home in the Blue Mountains.
The Applicant said that during her six years in Australia as a student, she only visited Hong Kong once even though her family lived there. She also said that she made a number of friends in Australia at high school, university and through other social circles including Dragon Sports Associations and the Chinese Youth League (Exhibit A5). Ms Hung said that when she left in 1990, she applied for permanent residence, reflecting her desire to return.
real estate investments
The Applicant said that she purchased a one-bedroom apartment at Neutral Bay in Sydney in 1994 with the intention of living in it when she returned to Australia. She said that she engaged an Australian solicitor, Sonya Feltman, to conduct the conveyance, and the ANZ Bank to finance the loan and establish a banking relationship. Ms Hung also said that she engaged Peter Wong of P&G Mode Realty to manage the property. All the people she engaged to handle her affairs were Australians, Ms Hung said, emphasising that it was in her view a benefit to Australia.
Ms Hung said that her repayments included interest that went back into the Australian economy, and that she charged the tenant a low rent. Ms Hung said that the tenant had been there for some years, and she felt he would look after the property for her. She emphasised that the purchase and sale were not for capital gain purposes, but that the only reason why she sold was that there were disputes between the tenant and others in the building, and she did not want to be involved in litigation.
Ms Hung said that she had not previously owned any other real estate and did not own any at present.
other investments
Ms Hung said that she held a fixed term deposit at the National Australia Bank for the period November 1995 until to March 1997. However, when cross-examined about her investments, Ms Hung said that although she continued to have a savings account with the National Australia Bank and Commonwealth Bank, she had moved her investments to Merrill Lynch who now held her investments in the USA in Australian bonds. Ms Hong also gave evidence that she had at one time invested in the Australian Stock Market and said that she had no shares or securities on the Hong Kong Stock Exchange.
nature of ms hung's employment
Ms Hung said that she joined Grant Thornton Hong Kong in 1993 as an assistant manager, and became a salaried partner (tax) in April 1999. Ms Hung said that she had worked for the firm in the USA from November 1995 to January 1997. When questioned about her position at Grant Thornton since becoming a salaried partner, Ms Hung said that her duties had not changed and she was still required to deal with Australian clients looking to move into the Hong Kong market and Hong Kong clients looking to move into Australia. She also said that the focus of her work was client based rather than the day-to-day administration of a particular department in the firm, and that as a partner, she dealt directly with clients.
Ms Hung said that she was primarily involved in consulting work rather than compliance, addressing client problems as they arose. She was unable to give an estimate on the number of clients she would deal with each week as her work was dictated according to the needs of the client. However, she said that she had a portfolio of a few hundred clients of which 50 were Australians.
The reason Ms Hung gave for specialising in clients whose interests were with Australia, was that her qualifications were obtained in Australia and that due to the importance of appropriate tax advice, one would generally have clients in the area of one's expertise. The Applicant said that both she and Mr Corkhill who is Australian, dealt with clients whose business was directed to and from Australia. The other 25 people in the team dealt with the non-Australian aspects of the business she said.
Ms Hung said that her work at Grant Thornton included advice on investments and establishing subsidiaries. When questioned about her role in tax minimisation, Ms Hung said that she provided advice to her clients about tax efficient structures, however, would not recommend anything illegal. Ms Hung said that if her clients did not pay high tax due to her advice, they would receive high returns that could be reinvested back into Australia.
Ms Hung said that at one time she had considered a return to Australia but financial constraints had forced her to change her plans. She had discussed employment opportunities with Grant Thornton Australia she said because it was her intention to return to live in Australia.
involvement in professional associations
The Applicant said that she had joined the Institute of Chartered Accountants in Australia – Hong Kong Branch ("ICAA") in 1997, and in 1998 was formally appointed as the Public Relations Officer. Ms Hung said that to be eligible for membership, one was required to have obtained qualifications in Australia and that it was basically a forum organised by expatriates to maintain networks and share information.
Her role as the Public Relations Officer involved the organisation of social functions and Ms Hung said that she had organised a number of events for the ICAA including a cocktail party to introduce the Chairman to the Australian community in Hong Kong. Ms Hung also said that she had tried to maintain a focus on Australian products when organising social events.
In cross-examination, Ms Hung agreed that she had gained Australian clients through her participation with the ICAA and that she had represented both the ICAA and Grant Thornton at social events.
Ms Hung when asked about her involvements in other professional organisations said that she was a member of the Support Australia Group ("SAG") through her membership of the ICAA as it was an official member. Ms Hung said that there was no direct relationship between Grant Thornton and SAG and it did not benefit from her involvement in the SAG. She said that SAG met once every two months and had organised events to fundraise for the Australian International School. She had for example been involved in organising a production of a musical called 'Chicago'.
jl business consulting pty limited
Ms Hung gave evidence about her attempt to establish an "Australian mode" school in Beijing, China. When cross-examined about her role in its establishment, Ms Hung said that while her company JL Business Consulting Pty Limited was not a large financial contributor, it had brought all the parties together and contributed expertise where appropriate and that she, particularly, had contributed tax advice. Ms Hung said that she had tried to establish an Australian school in China for the children of expatriates and the offspring of local families in conjunction with Pittwater House School.
In response to questions about the failure of the school project, Ms Hung said that whilst cognisant of the difficulties with the Chinese legislation, she was confident that a school could still be established in China. She said that although Pittwater House recognised that there were difficulties, this was not an indication that they wanted to discontinue the project but rather that it was not feasible at that time. Ms Hung also said that with any business agreement, there were always changes and developments.
seminar presentations
I noted that from the evidence before the Tribunal at T1/11, the Applicant had worked closely with Bob Lunney of the Grant Thornton Brisbane Office to prepare an article for the University of Queensland Association in Hong Kong on the Goods and Services Tax.

Ms Hung also gave evidence regarding a talk delivered in 1997 updating participants of an Australian tax conference on Hong Kong. She said that Mr Corkhill attended the following year, 1998.
EVIDENCE OF MR THOMAS CORKHILL - PARTNER OF GRANT THORNTON HONG KONG
Mr Corkhill whose statements of 12 April 2000 (Exhibit A7), 23 March 2000 (T1/30 and T22/149) were before the Tribunal, also gave oral evidence. He said that Grant Thornton Hong Kong, where Ms Hung was a partner, was part of an international accounting firm with affiliated companies all over the world, including Australia. He said that both he and the Applicant were accountants specialised for the Asia Pacific Region.
Mr Corkhill described the role of the Applicant in the company as facilitating a two-way flow, assisting those clients looking to move into Australia or the Australian market, and those Australian clients looking to establish themselves in Hong Kong or use Hong Kong as a base for entering the global market.
When questioned about the connection between Grant Thornton and the partners' involvement in professional associations, Mr Corkhill said that while it was beneficial for Grant Thornton to be involved in different professional organisations and groups, and that it was hoped that a by-product of such involvement would be new clients and business, it was also an opportunity for the individual to raise his or her profile. The role and responsibility of the partners of the firm, he said, was to promote the firm and develop their own persona in the business community.
When asked about his experience with expatriate investment, Mr Corkhill said that a typical expatriate tended not to retain investments in Australia because the tax regulations did not make such investments an attractive option. However, he said that it was quite usual that those expatriates would return home and then use the funds which they had accumulated outside Australia.
Mr Corkhill also said that it was common that expatriates would travel to Australia infrequently, preferring to travel internationally on short breaks as opposed to using their four weeks holiday per year to visit Australia. Generally, he said, expatriates would combine their business travel to Australia with a personal trip.
EVIDENCE OF MR VICTOR GEOK HONG TAN – THE APPLICANT'S HUSBAND
The Applicant's husband, Mr Tan, gave evidence before the Tribunal that he fully supported his wife's application for Australian citizenship. He said that although he was born in Malaysia, he had left in approximately 1986-1987 to study and work in the United Kingdom, and that he had no intention of returning to Malaysia to live.
He said that he was interested in obtaining Australian citizenship when he started going out with the Applicant, and had subsequently applied in view of his wife's ongoing application. Mr Tan also said that Australia was his ideal choice given the Applicant's strong ties to, and close relationship with Australia.
Mr Tan said that this was his first visit to Australia although he had completed a Masters in Advanced Finance at Macquarie University as an external student.
SUBMISSIONS AND CONCLUSIONS
Having heard the evidence, I had to take it and the parties' submissions into account, as well as the legislation and case law to make the correct and preferable decision in relation to whether Ms Hung would be granted Australian citizenship. The discretion available pursuant to section 13(4)(b)(i) of the Citizenship Act was to treat a period during which the applicant was a permanent resident but not resident in Australia, as a period which had been spent in Australia, provided I was satisfied that she had been engaged in activities that the Minister would consider beneficial to the interests of Australia.
I noted that as the Applicant had applied for Australian citizenship on 26 March 1999, the activities which could be considered in accordance with the discretion pursuant to section 13(4)(b)(i) of the Citizenship Act, were those activities falling within the five years prior to the application, 25 March 1994 up to and including 26 March 1999.
There was no dispute and I accepted that Ms Hung did not qualify for citizenship pursuant to section 13(1)(d) and (e) of the Citizenship Act because she did not meet the residency requirements, having spent 13 of the 717 days in the two years prior to the application in Australia, and 39 of the 1087 days in the five years prior to the application.
The phrase "activities beneficial to the interests of Australia" has been considered in cases before the Tribunal and the Federal Court of Australia, and I have considered some of these, and the guidelines set out in the Australian Citizenship Instructions in coming to a decision. I have weighed up whether Ms Hung's activities were to her private interests or achieved recognition for Australia and were beneficial to the public interests of Australia.
I acknowledge that Ms Hung was educated to a tertiary level in Australia, and has lived here. I acknowledge that she has expressed a desire to be an Australian citizen, and also that she prepared very detailed documents for the hearing of her application. They have been of assistance in the preparation of these reasons for decision.
residency requirements
Ms Chadderton submitted for the Respondent that there was no dispute that at the time Ms Hung's application for Australian citizenship was made on 26 March 1999, she failed to meet the residency requirements pursuant to section 13(1)(d) and (e) of the Citizenship Act, as she had spent only 13 days in Australia in the last two years and only 39 days of the last five years.
Ms Chadderton referred me to the case of Re Ho v Minister for Immigration and Ethnic Affairs (1994) 34 ALD 664 where the Tribunal had considered the application of the discretion in section 13(4)(b)(i) of the Citizenship Act. Deputy President McMahon had stated at 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. The presence of the applicant in Australia for specific periods is one of the prerequisites to a grant of citizenship. It is not an optional requirement interchangeable with certain activities outside Australia."
Ms Hung acknowledged that she did not meet the residency requirements pursuant to section 13(1)(d) and (e) the Citizenship Act, but submitted that for the reasons outlined below, she was entitled to the exercise of the minister's discretion pursuant to 13(4)(b)(i) of the Citizenship Act.
I was mindful of and persuaded by the Deputy President's interpretation of the discretion in the Citizenship Act, and moved to consider the other indicia as discussed in the case law and Australian Citizenship Instructions.
ACCOUNTANCY WORK WITH GRANT THORNTON HONG KONG
Ms Hung submitted that her professional involvement in projects involved the contribution of her knowledge and experience to help Australians establish investments in Hong Kong and non-Australians looking to move into the Australian market. Her commitment to the Australian organisations was indicative of her commitment to Australia as a whole, and she submitted that no one would do such a good job were they not interested in the country.
On that point Ms Chadderton submitted:
"…this work cannot be considered to be an activity of a public nature but rather the promotion of the private interests of the firm and its Australian clients by looking after their private interests overseas."

It did not therefore, she submitted, fall within the requirements of section 13(4)(b)(i) of the Citizenship Act.

In this respect, I noted the comments of Deputy President McMahon in Re McCarthy and Minister for Immigration, Local Government and Ethnic Affairs (1993) 30 ALD 447 at 448 that: the claim:
"… 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 that were beneficial to the interests of Australia. Furthermore, having regard to the observations of Senior Member Gibbs in Re Tsui (1991) 24 ALD 236, it might also be said that such activities are so remote, indirect or speculative in relation to the beneficial interests of Australia that they could not be taken into account."
In the instant case, Ms Hung's employment with Grant Thornton can be likened to the work undertaken by Mr McCarthy with Damit Worley Engineering, a subsidiary company to Wholohan Grill and Partners Australia. Ms Hung at Exhibit A1 said that Grant Thornton Hong Kong, an affiliate of the Grant Thornton International group:
"had the closest ties with Australia and has been an ambassador for Australia particular (sic) in the promotion of all "things" Australian here in Hong Kong … [Because] … the company … is not incorporated in Australia [it] does not necessarily mean that it is not providing benefits to Australia."
The Applicant, as a partner of Grant Thornton, may have been involved in the promotion of "things" Australian, however, such a promotion can not be viewed as providing actual or direct benefit to Australia. Deputy President McMahon in outlining the intent of the legislation said:
"The legislation requires an applicant to be engaged in activities beneficial to Australia. In … [Mr McCarthy's] case, his activities may provide a future benefit which is intangible".
To fulfil the requirement of the legislation, Ms Hung must be engaged in activities beneficial to Australia. While acting as an ambassador for Australia and the promotion of "things" Australian may provide a future benefit to Australia, they are yet intangible and therefore, not relevant to the consideration of the exercise of the Minister's discretion under section 13(4)(b)(i) of the Citizenship Act.
Ms Hung also said at T1/8 that in her employment with Grant Thornton, she had been:
"… referring clients to the Brisbane, Melbourne, Sydney and Perth offices of Grant Thornton in Australia. Fees resulted from these clients would be retained by the respective offices which rendered the services. I am also serving clients based in Australia and assist them in making corporate decisions when expanding their businesses overseas. The assistance that I provided resulted in better business management and hence, operational results of these clients. The cross referrals and the assistance rendered to the Australian corporations have brought direct benefits to the Australian community."

I noted that Ms Hung is remunerated by her employer for the assistance she gives to Australian clients looking to expand their business and that her contribution to any benefits that flow to the Australian community as a result of the better business management and operational results, are "so remote, indirect or speculative in relation to the beneficial interests of Australia that they could not be taken into account." Re Tsui (supra).
I was also mindful of Ms Hung's evidence that her professional advice, whether she had been applying for citizenship or not, would have remained focused on Australia and the two-way flow of business between Hong Kong and Australia. I considered this to be so because Ms Hung did her studies in Australia, lived in Australia for six years between 1984 and 1990, and could be considered to have expertise in relation to Australian business, tax and accountancy issues. There was no public interest of Australia involved in these activities. They were, in my view, normal private commercial activities.
PERSONAL TIES with australia
Ms Hung submitted that although she had physical ties to Hong Kong and presently resided there, this did not indicate that she wanted to stay in Hong Kong. In fact, she was keen to return to Australia, she said. She gave evidence that she had previously applied for employment in Australia between 1991 and 1993 but had been unsuccessful in securing employment at that time. Ms Hung also said that she would ultimately like to settle in Australia, however, business/employment opportunities with Grant Thornton required that she live outside Australia at the present time.
Ms Hung further submitted that she had intended her ties with the Australian community to continue, and that this was demonstrated by her application for permanent residence following her departure from Australia in 1990 on completion of her education and attainment of her professional qualifications.
Ms Chadderton submitted that the evidence of the Applicant about her personal ties with Australia, namely her close friends, her familial ties to a sister who is an Australian citizen and currently residing in Japan, and the fact that she has maintained a driver's license, Medicare and assorted charge cards were purely private in nature and therefore, irrelevant to any consideration of the exercise of the Minister's discretion pursuant to section 13(4)(b)(i) of the Citizenship Act.
I noted Ms Chadderton's submissions, and accepted that while Ms Hung has friendships in Australia which were made during the time she spent here in 1994 to 1990, her familial ties in Australia at present are remote. Her sister, an Australian citizen, is currently living and working in Japan. Ms Hung also gave evidence that she maintained a driver's licence, Medicare and assorted charge cards. I consider that a driver's licence and charge cards are really for personal convenience, and as a permanent resident Ms Hung may well be entitled to a Medicare card. I am therefore not satisfied that her personal ties were in this respect sufficient to warrant the exercise of the Minister's discretion pursuant to section 13(4)(b)(i) of the Citizenship Act.
I also noted Ms Hung's stated intention to reside in Australia, and Mr Tan's evidence that he would also like to become an Australian citizen. I further noted that Mr Tan had also enrolled in and completed a postgraduate masters in Advanced Finance as an external student at Macquarie University. However, I was mindful also that neither made any attempt to date their intention to return to Australia, and that Ms Hung stated that her work at Grant Thornton kept her in Hong Kong at present.
community activities
Ms Hung submitted that her ties with Australia could be demonstrated by her involvement in community activities namely that she was engaged in the Dragon Sports Association and the Chinese Youth League (Exhibit A5) and that she had represented Australia in dragon boat racing in 1989 when she was living and studying in Australia.
I noted that these dated back many years to when Ms Hung was living in Australia completing her studies.
professional associations
Ms Hung submitted that her involvement in professional groups and organisations was not a compulsory requirement of her position as a salaried partner of Grant Thornton but rather that she voluntarily contributed her time to professional organisations. She also said that she had tried to affiliate herself with Australian professional groups and had been appointed Public Relations Officer of the ICAA Hong Kong Group in 1998.
Ms Chadderton on the other hand, submitted that the membership of various organisations was simply a way of networking and obtaining business for Grant Thornton Hong Kong.
Specifically, Ms Chadderton argued that while the Applicant may have lifted the "profile of the ICAA by establishing ties with many of the other Australian organisations" (T1/11), her involvement in the ICAA and by implication SAG was a feature of her position as a partner within Grant Thornton.
Ms Chadderton further submitted that the Tribunal had considered the relevance of involvement with organisations such as the ICAA in Manbir Singh and Minister for Immigration and Multicultural Affairs (AAT 12855, 5 May 1998). I noted that Deputy President McDonald (as he then was) had held at page 9-10, that the Applicant's activities:
"… whilst in themselves, laudable, form part of the necessary involvement that could be expected by somebody in the applicant's position given the type of clientele which he wishes to attract to his business. They do not in themselves or in combination with other business activities conducted through Chatyon provide sufficient evidence to support a finding of 'a social, cultural or economic nature' at a level which would qualify for the exercise of the discretion in his favour."

Ms Chadderton submitted that Ms Hung's involvement with the ICAA and SAG could be considered in the same way, laudable, but a necessary feature of her employment, and therefore, outside the scope of those matters considered beneficial to the interests of Australia.
I was mindful of the submissions of each party, and the way involvement in professional associations had been approached by (former) Deputy President McDonald in Manbir Singh (supra). I was impressed by Ms Hung's enthusiastic participation in her professional association both in Hong Kong and in Australia, but have to agree that I too would view this as a marketing and personal profile exercise for Ms Hung and her employer. I noted that this accorded also with the view of Mr Corkhill who fully supported Ms Hung's application for Australian citizenship, but also expressed in his evidence that membership and activities in professional associations were part of the job.
jl business consulting pty limited
I noted the Applicant's evidence about her involvement in the establishment of an Australian mode school in Beijing, China and her submissions that such activities would be beneficial to the interests of Australia in providing western style teaching methods for the children of Australian expatriates.
Ms Chadderton argued that the Applicant's attempts to set up an Australian mode school in Beijing, China through her company JL Business Consulting Pty Limited was undertaken not for the benefit of Australian interests but to "advance the commercial interests of the company". (Respondent's written submissions). Furthermore, Ms Chadderton said that the initial aim of the school was to introduce students to western education methods with a view to assisting them to study overseas in the United Kingdom, United States and Canada. Even if it were to be deemed beneficial to Australian interests, she submitted that there could be no suggestion that the Applicant intended to provide such a benefit initially. It was pointed out that Australia had not even been included as a target country until a revised report was completed.
Ms Chadderton also submitted that the eventual failure of the project was due to the:
"…tightening of the PRC education system; and … a realisation by the major financial supporter of the project … that the aspiration of educating Chinese students in the Australian method was unfeasible … in these circumstances, the project cannot be considered to have advanced Australia's interest nor to have been beneficial to Australia's interests, because it never went into operation. Even if it had done so, it would have been in the nature of a private commercial undertaking by the company rather than an activity of a public interest nature."
I noted that the above mentioned project had not gone forward due to changes in China's education policies, and find there was no evidence before me to conclude that the project was commenced for other than commercial purposes. It would be a long stretch to find that Ms Hung commenced activity to set up a school in China in 1994 simply to benefit Australia.
investments
Ms Hung submitted that she had had a number of investments in Australia including fixed term deposits, and between 1994 and 1998, an investment property in Neutral Bay in Sydney. She said that she had intended to live in the property at a future date. She contended that she had paid taxes on her investments and had engaged a number of Australian firms to manage her Australian investments, which provided direct benefits to Australia.

Ms Chadderton contended that the Applicant, in purchasing a property in Neutral Bay in 1994, did not provide any benefit to Australia, rather she received considerable personal gain from its sale in 1998 in the amount of $114,500 less expenses. Her actions of engaging Australian banks, lawyers and real estate agents was not contributing to the Australian economy as alleged by the Applicant, but rather a means to facilitate the investment.
Similarly, the bank accounts, securities and shareholdings held by the Applicant, according to Ms Chadderton, were a purely personal and private concern. They fell short of the "activities beneficial to Australia" as envisaged in Minister for Immigration, Local Government & Ethnic Affairs v Roberts (1993) 113 ALR 151.
In summation, Ms Chadderton submitted that the nature of the "beneficial interest" to be considered by the Tribunal in the instant case which would warrant the exercise of the discretion had already been considered by Einfeld J in Roberts (supra). His Honour had held at 156 that:
"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 nature, and means more than the private interests of the respondent. The section requires some objective benefit."

Ms Chadderton submitted that in relying on the interpretation of Einfeld J above, none of Ms Hung's activities overseas provided an objective benefit to Australia, and that she would not, therefore, qualify for the exercise of the discretion pursuant to section 13(4)(b)(i) of the Citizenship Act.
I was mindful of Einfeld J's statements in Roberts (supra), and was unable to find that any of Ms Hung's activities provided an advantage to Australia, whether commercial or otherwise. I noted his Honour's reference to the concept of a potential citizen contributing to the public interest of Australia. I have weighed up the very detailed evidence and submissions of the Applicant, and considered whether her activities and the results of those meant more to Australia than to the private interests of the Applicant. In each case, I found that Ms Hung's activities were related to her normal professional life. Her connections, both physical and financial are in Hong Kong where she works and lives with her husband. I have noted that Ms Hung has two sisters, one of whom is married to an Australian. I noted also that in the past Ms Hung had some monetary investments in Australia and some real estate. Although she told me that she does not own real estate in Hong Kong, she has neither investments nor real estate in Australia at present. I am also mindful the test is an objective one.
further conclusions
I noted the comments of the Applicant regarding the Department's delay of over eight months in processing her application (Exhibit A6) and I can accept her enthusiasm in wanting to move the application forward. I am, however, unable to take any delay Ms Hung may have experienced into consideration in deciding whether discretion to grant her citizenship should be exercised pursuant to section 13(4)(b)(i) of the Citizenship Act.
Taking into account all the evidence, legislation, case law, and Australian Citizenship Instructions, I preferred the submissions of the Respondent and find that the activities of the Applicant outside of Australia cannot be viewed as activities the Minister would consider beneficial to Australia's interests. In this respect, I noted that the exercise of the Minister's discretion pursuant to section 13(4)(b)(i) of the Citizenship Act requires an objective assessment of the activities carried out by the Applicant. While I find Ms Hung's substantial involvement in the ICAA and SAG and her attempts to develop an Australian International School in Beijing admirable, they do not satisfy the objective test as envisaged by the Citizenship Act and elucidated in Australian Citizenship Instructions. Thus it follows that I cannot find that Ms Hung's activities can be considered as beneficial to Australia to the extent that the discretion pursuant to section 13(4)(b)(i) of the Citizenship Act should be exercised to award Australian citizenship to the Applicant.
I therefore affirm the decision of the Department of Immigration and Multicultural Affairs of 8 December 1999 not to exercise its discretion under section 13(4)(b)(i) of the Citizenship Act to treat time spent by the Applicant overseas as a permanent resident as having been time spent in activities beneficial to the interests of Australia.
However, I note that the Applicant is not precluded from reapplying for Australian citizenship if and when she is able to meet the residency requirements required pursuant to sections 13(1)(d) and (e) of the Citizenship Act.
DECISION
The Tribunal affirms the decision under review of the Department of Immigration and Multicultural Affairs of 8 December 1999 which found that the discretionary powers pursuant to section 13(4)(b)(i) of the Citizenship Act should not be exercised to approve Australian citizenship for Ms Hung Lo Shan Lusan.

I certify that the 84 preceding paragraphs are a true copy of the reasons for the decision herein of Ms G Ettinger Senior Member
Signed:         .....................................................................................
  Associate
Date/s of Hearing  20 June 2000
Date of Decision  10 August 2000
Counsel for the Applicant        N/A
Solicitor for the Applicant         N/A
Counsel for the Respondent    N/A
Solicitor for the Respondent    Ms P Chadderton