Mautner and Minister for Immigration and Citizenship

[2008] AATA 1041

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2008] AATA 1041

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No   2007/4439

GENERAL ADMINISTRATIVE DIVISION		)
Re		PETER MAUTNER

Applicant

And MINISTER FOR IMMIGRATION AND CITIZENSHIP

Respondent

DECISION

Tribunal Mrs Josephine Kelly, Senior Member

Date20 November 2008

PlaceSydney

Decision The reviewable decision is affirmed.  

....................[sgd]........................

Senior Member
  Mrs Josephine Kelly

CATCHWORDS

IMMIGRATION AND CITIZENSHIP – Application for citizenship – Refusal – Applicant permanent resident – Residence requirement not met – Transitional provisions - Whether discretion should be exercised – Whether engaged in activities beneficial to Australia during periods outside Australia – Held not engaged in activities beneficial to Australia during relevant period – Discretion not exercised - Decision affirmed

Australian Citizenship Act 2007, ss 21, 22

Australian Citizenship (Transitionals and Consequentials) Act2007, Schedule 3, Item 7

Australian Citizenship Instructions (2007), Chapter 4

Minister for Immigration, Local Government and Ethnic Affairs v Roberts (1993) 41 FCR 82

REASONS FOR DECISION

20 November 2008 Mrs Josephine Kelly, Senior Member      

1.      Mr Peter Mautner arrived in Australia from Austria with his parents in 1958 when he was 7 years old.  He holds an Austrian passport and currently spends most of his time in Bangkok, Thailand. Mr Mautner’s application for Australian citizenship, lodged on 16 February 2007, was refused by the Minister for Immigration and Citizenship (the Minister) on 16 August 2007.  Mr Mautner seeks the review of that decision. 

2.      It is not in dispute that:

(a)  Mr Mautner is a permanent resident of Australia, having been first issued a resident return visa in 1997, and

(b) he does not satisfy the residence requirement that he must have spent a total period of at least 1 year in the period of 2 years before the day he made his application and a total period of at least 2 years in the period of 5 years before that day (Item 7(8)(1) of Schedule 3 of the Australian Citizenship (Transitionals and Consequentials) Act 2007 (the Transitional Act)).

THE ISSUE

3. The issue is whether I should exercise the discretion conferred by item 7(8)(4) of Schedule 3 of the Transitional Act and treat the period when Mr Mautner was engaged in activities in Thailand, as periods in which he was present in Australia as a permanent resident because those activities were beneficial to Australia.

LAW AND POLICY

4.      Mr Mautner’s application for citizenship had been made but not decided when the Australian Citizenship Act 2007 (the 2007 Act) commenced on 1 July 2007. His application is therefore governed by Item 7(2) of Schedule 3 of the Transitional Act which has the effect that his application is taken to be an application under s 21 of the 2007 Act. Section 21(2) of the 2007 Act provides that a person is eligible to become an Australian citizen if the Minister is satisfied, among other things, that the person is a permanent resident at the time and satisfies the residence requirement under s 22. However s 22 of the 2007 Act does not apply to Mr Mautner's application, which is governed by Item 7(8)(1) of Schedule 3 of the Transitional Act, the residence requirement set out above.

5. Item 7(8)(4) of Schedule 3 the Transitional Act confers a discretion where, as in Mr Mautner's case, the residence requirement specified in Item 7(8)(1) is not satisfied. Item 7(8)(4) provides:

The Minister may treat a period as one in which the person was present in Australia as a permanent resident if:

(a)  the person was engaged in activities during that period that the Minister considers to be beneficial to Australia; and

(b)  the person was not present in Australia during that period but was a permanent resident during that period.

6. Critically, Items 7(8)(1) and 7(8)(4) of the Transitional Act require me to look at Mr Mautner's activities in the specified time periods of 2 and 5 years before he made the application for citizenship on 16 February 2007, that is from 16 February 2002 to 16 February 2007.

7.      In Minister for Immigration, Local Government and Ethnic Affairs v Roberts at 87 Einfeld J said that the term ‘activities beneficial to the interests of Australia’ (as it appeared in similar provisions in the former citizenship legislation):

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.

8.      The Australian Citizenship Instructions (ACIs) 1 July 2005 - 30 June 2007 set out policy guidelines that apply to the exercise of the discretion. Relevantly, Chapter 4 of the ACIs provide that the discretion should only be exercised if the Applicant was:

● self-employed and frequent travel abroad was essential to the successful operation of their business, whether for an extended period or on a regular short-term basis.

9.      The ACIs further provide that the applicant must have “personally engaged in activities overseas beneficial to the interests of Australia, not just, for example the company or organisation for which the applicant worked.” Furthermore, “activities” also means “a series of transactions, not just a one-off transaction.”

THE CASE FOR MR MAUTNER

10.     Mr Withers, counsel who appeared for Mr Mautner, contended the discretion should be exercised as Mr Mautner was engaged in activities beneficial to the interests of Australia while overseas. He relied on the policy guideline in Chapter 4 of the ACI which is set out above.

11.     Following is a summary of the facts relied on by Mr Withers to support this proposition. 

12.     Mr Mautner has over 30 years' experience in the retail sector, particularly focussing on the retailing of food products. Mr Mautner has developed a strong relationship with Woolworths Australia, Coles Australia, and a number of other large food outlets. Mr Mautner has utilised his experience and connections with Australian food retailers to develop a business importing organic products into Australia from Thailand.

13.     The business has taken several years to develop, beginning in 1999 when Mr Mautner visited Thailand for the first time. In 2003 Mr Mautner decided that in order to ensure the business succeeded he would need to establish an office in Bangkok.

14.     He has continued to maintain a residence in Australia at Roselands, NSW.

15.     Mr Mautner now supplies significant quantities of organic coconut milk to Woolworths and other retailers.

16.     In the period 2005-2007 Mr Mautner has achieved sales revenues from the importation of his company’s products in the amount of $1,107,421, and Mr Mautner declares income and pays income taxes in Australia.

17.     It is necessary for Mr Mautner to reside in Thailand in order to carry out his business Aussie Thai Foods (ATF).  He maintains a commercial relationship with a company named Merit Food Products Co Ltd, Thailand (Merit Foods) from which he sources organic coconut milk for export to Australia.  Merit Foods operates at a factory at Chonburi in Thailand where the product is canned.  Much of Mr Mautner’s time is spent travelling to the Chonburi factory where he attends to the despatch of products to Sydney and, among other things, ensures that (a) Woolworths' quality assurance audit specifications are met and (b) that the product complies with the standards set down by the Australian Certified Organic (ACO) organisation, a body which accredits organic products.

18.     Mr Mautner is usually engaged for forty to fifty hours per week in activities directly connected to the operation of his business and returns to Sydney approximately every eight to nine weeks in order to deal with matters relating to the business.

19.     Mr Mautner intends to build his business to a sustainable level so that he can employ appropriately trained staff to run the business for him.  Once he has done that he intends to return to Australia permanently.  At the time of the hearing he planned to move back to Australia within four years – to semi-retire in two years and to be fully retired after four years.

20.     The evidence of Mr Laurie Cavallo, Business Manager for Woolworths, establishes that the organic coconut milk imported into Australia by Mr Mautner’s business is in very strong demand by Woolworths' customers, and demand is increasing, driven in part by consumer consciousness of health issues, and the desire to acquire products perceived as being free from pesticides or other toxic elements..

21.     Merit Foods is the only Thai supplier that has ACO accreditation, an essential requirement for Woolworths to accept the product.  The organic coconut milk supplied by Mr Mautner’s company is superior to anything else that can be sourced from other Asian countries and Mr Mautner’s presence in Thailand ensures quality and reliability of the supply of the product without which there would likely be a higher cost base for the product.

22.     In summary, Mr Withers submitted that the criterion for the exercise of the discretion is satisfied because Mr Mautner’s organic coconut milk product is unique, and his only reason for being in Thailand since about 2003 was to develop the import business with Merit Foods.  Since 2005, Mr Mautner has imported into Australia  products worth $1.1 million.  He is importing a product that is otherwise unavailable here. Moreover, Mr Mautner has declared and paid income tax on the business and purchasers have paid goods and services tax on the product.

CONSIDERATION

23. In addition to the documents filed pursuant to s 37 of the Administrative Appeals Tribunal Act 1975, the evidence before me included oral and written evidence from Mr Mautner and Mr Laurie Cavallo, some taxation records for Mr Mautner, a bundle of invoices, a certificate of compliance issued to Merit Food Products from ACO, and a certificate of attainment issued to Merit Food Products from Woolworth’s Quality Assurance.  

24.     Ms Quinn, who appeared for the Minister, tendered an internet printout from a Coles web site which showed an organic canned coconut milk product for sale. She argued that the product imported by Mr Mautner was not unique. 

25.     Mr Mautner stated in written evidence that he has been in contact with large retail outlets in Thailand, including Tesco, Lotus, and Carrefour, with a view to importing health and beauty products from Australia for sale in those outlets. A test order of skin creams was to arrive in Bangkok in June 2008, and he was optimistic the retailers would begin to market the products. There was no corroborative documentary evidence of this order.

26.     Mr Mautner said he had a warehouse manager and a company who handle his work in Australia, Global Branding. They attend to orders made by Woolworths on Mr Mautner’s behalf when he is not in Australia. He pays Global Branding about $36,000 a year. Mr Mautner rents a warehouse for $1,200 per month.  There was no corroborative documentary evidence of these matters.

27.     Mr Laurie Cavallo gave evidence supporting Mr Mautner, as already outlined.  However there was no reference from Mr Laurie Cavallo lodged when Mr Mautner made his application for citizenship on 16 February 2007.  A reference from a Mr Joe Cavallo was lodged.  His reference, and one from Mr Cronk refer to Mr Mautner's working to develop export markets in Asia, which I understand means markets in Asia for Australian products.  In the application Mr Mautner described his occupation as owner import/export business.

28.     Mr Laurie Cavallo's written evidence quantified imports from Mr Mautner's company during the calendar year 2007 only. He had reviewed Woolworths' records which showed that Woolworths sourced 400,000 cans of organic coconut products in the calendar year 2007 from ATF and In addition, Woolworths imported through ATF in the order of 1,200,000 cans.   His evidence was that his first interaction with Mr Mautner's company was three or four years ago. He would email Mr Mautner, or his staff, two to seven times a week to discuss the business. He was not aware of any other retailer who stocked the product. There was no corroborative documentary evidence of the purchases by Woolworths.  I am also uncertain what the 1,200,000 cans contained, but I infer that it was not certified organic coconut milk.

29.     The earliest dated organic certification for a specified coconut plantation in the name of  Merit Food Products Co Ltd, Thailand, was 5 June 2008, and is valid until 31 July 2009.  A certification for Merit Food for canned coconut milk which met the requirement of Woolworths Quality Assurance (WQA) Standard was valid until April 2008, but no issue date was apparent on the document.

30.     Mr Mautner registered the business name “Aussie Thai Food” in NSW on 16 January 2004, as a food provider.

31.     Mr Withers placed considerable emphasis on the fact that, while Mr Mautner has been overseas, he has paid income tax in Australia and Woolworth's customers have paid goods and services tax when purchasing the product. I take this into account, however, the evidence of tax paid by Mr Mautner for the year ending 30 June 2007 does not disclose the source of that income. There was no evidence of the amount of income tax paid before 2006 or the source of income.

32.     Mr Mautner's written evidence included a table headed "Sales Made into Australia for the period 2003-2007 inclusive" which actually provided figures only for the period 2005 to 2007. The total sales for those years were  $1,107,421.00. He also provided a bundle of tax invoices from "Peter Mautner" to Safeway and Woolworths, the earliest dated 25 June 2005 and the last being 19 December 2007.  The tax invoices were printed using a software package, MYOB. There was no contemporaneous documentary evidence such as orders, receipts, or shipping records, to corroborate the transactions.

33.     Having considered all the evidence before me, I am not persuaded that Mr Mautner's activities in terms of exporting organic coconut milk or any other product to Australia have been as extensive in terms of value or time as he contends.   There is no corroborative documentary evidence of imports before the calendar year 2007. The certifications relied on are from 2008.  Mr Cavallo's evidence supports no sales before some time in the calendar year 2007. Mr Mautner's application was refused on 16 August 2007.  The references lodged with Mr Mautner's application emphasise his promotion of exports from Australia rather than imports into Australia.  That evidence, and the dearth of independent evidence corroborating Mr Mautner's claims of activity since 1999, reinforce my conclusion.   

34. I am not satisfied that, during the periods Mr Mautner was not present in Australia in the five year period prior to making his application on 16 February 2007, he was engaged in activity which was beneficial to Australia. I am not persuaded that during that five year period Mr Mautner was working towards the importing of the coconut milk product from Thailand, or imported that or any other product from Thailand. Rather, the evidence suggests that a burst of activity occurred after the application had been refused. I am therefore not persuaded to exercise the discretion conferred by Item 7(8)(4) of Schedule 3 of the Transitional Act.

DECISION

35.     For the above reasons, the reviewable decision is affirmed.

I certify that the 35 preceding paragraphs are a true copy of the reasons for the decision herein of Mrs Josephine Kelly, Senior Member.

Signed: ……..[sgd]………..

Steven Mulipola, Associate

Date of hearing:  16 July 2008

Date of decision:  20 November 2008

Counsel for the Applicant:             Mr C Withers

Solicitors for the Applicant:           Carneys Lawyers

Solicitors for the Respondent:      DLA Phillips Fox