MUHAMMAD SALEEM and MINISTER FOR IMMIGRATION AND CITIZENSHIP

[2009] AATA 992

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2009] AATA 992

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No 2007/3496

GENERAL ADMINISTRATIVE DIVISION		)
Re		MUHAMMAD SALEEM

Applicant

And MINISTER FOR IMMIGRATION AND CITIZENSHIP

Respondent

DECISION

Tribunal Ms N Bell, Senior Member

Date24 December 2009 

PlaceSydney

Decision The decision under review is affirmed. 

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

Ms N Bell, Senior Member   

CATCHWORDS – IMMIGRATION AND CITIZENSHIP – residency requirements - beneficial to the interests of Australia

Australian Citizenship Act 2007

Australian Citizenship (Transitionals and Consequentials) Act 2007

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

Lin v Minister for Immigration and Citizenship [2009] 176 FCR 371

REASONS FOR DECISION

Ms N Bell, Senior Member

1.      

Muhammad Saleem, a citizen of Pakistan, applied for Australian citizenship in June 2006.   He had arrived in Australia in 1976 and was granted permanent residence in July 2002 but, after a series of events, his permanent resident visa was cancelled in December 2002.  After an unsuccessful appeal to the Migration Review Tribunal, and pending an appeal to the Federal Court, Mr Saleem left Australia in

November 2003. After success in the Federal Court and remittal to the Migration Review Tribunal, Mr Saleem’s visa was reinstated. However, Mr Saleem had already returned to Pakistan.

2.      In the two years prior to the application, Mr Saleem spent just 21 days in Australia, residing overseas and, from November 2004, living and working in Pakistan as a Director of his family company, Sufi Weaving Pty Limited. In the five years prior to the application he spent 527 days in Australia.  

3.      The relevant provisions of the Australian Citizenship Act 2007 (and the Australian Citizenship (Transitionals and Consequentials) Act 2007) require an applicant for citizenship to satisfy, among other things, a residency requirement. That requirement is for presence in Australia as a permanent resident for one year in the two years prior to the application for citizenship and a total of two years in the five years prior to the application. However, the legislation provides for a discretion to treat a period in which a person resided overseas as one in which the person was present in Australia as a permanent resident, if the person was engaged in activities overseas that were beneficial to the interests of Australia.

4.      Mr Saleem seeks the exercise of the discretion in section 7(8)(4) of the Australian Citizenship (Transitionals and Consequentials) Act 2007 to treat the period that he resided in Pakistan where he worked as a Director of Sufi Weaving Pty Limited, from November 2004 until the date of Mr Saleem’s citizenship application in June 2006, as a period during which he was present in Australia as a permanent resident. He seeks the exercise of the discretion on the basis that he was engaged in activities that were beneficial to the interests of Australia.

5.      

The central issue for me to consider is whether Mr Saleem’s activities overseas were beneficial to the interests of Australia. As part of that consideration,

I must have regard to the policy guidelines contained in the Australian Citizenship Instructions concerning the exercise of the discretion. If I find that Mr Saleem’s activities do not fall within the descriptions contained in the Instructions, I am asked by Mr Saleem to consider whether his circumstances are so unusual as to make it appropriate to find, beyond the circumstances described in the Instructions, that his activities were beneficial to the interests of Australia.

Do Mr Saleem’s activities fall within those described in the Instructions?

6.      The Instructions provide relevantly:

Residence discretion: Residence outside Australia (s 13(4)(b)(i))

4.3.19Periods during which the applicant was a permanent resident and was outside Australia engaged in activities beneficial to the interests of Australia may be counted towards the residence requirements. This discretion applies to both residence requirements (ie, both "2 years in the last 5" and "1 year in the last 2").

4.3.20The legislation is interpreted as requiring the following:

• the applicant must have been a permanent resident (see 1.4) during any of the periods counted;

• the periods spent outside Australia to be counted must be:

- within the last 5 years for the 2 years in the last 5 years requirement; and

- within the last 2 years for the 1 year in the last 2 years requirement; 

• the applicant must have been personally engaged in activities overseas beneficial to the interests of Australia, not just, for example, the company or organisation for which the applicant worked;

• the applicant must have been engaged in a series of activities, not just a one-off transaction;

• the activities must also be during the relevant period/s under consideration;

• the activities must have been "beneficial to the interests of Australia" during the relevant period/s. It is not intended that the provision apply where there are no current benefits irrespective of whether benefits may accrue in the future.

4.3.21 Under Ministerial policy, the discretion will usually only be exercised if the applicant is in Australia and was either:

• 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, whether for an extended period or on a regular short-term basis; or

• 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 the applicant’s field of endeavour (for example, people engaged in aid programs, artists and entertainers of world standing).

4.3.22 If the applicant is overseas, the discretion will normally not be exercised.

7.      There is no dispute that Mr Saleem was personally engaged in the activity of manufacturing and exporting sheets, towels and other woven products to Australia; that he did so on a continuous basis; and that he did so during at least part of the relevant period of two years prior to his application for citizenship.

8.      However, the Instructions provide that the discretion will usually only be exercised in the three circumstances set out in paragraph 4.3.21 of the Instructions.

9.      Mr Saleem submitted, while acknowledging the weakness of the submission, that he was “required to work overseas by … a private employer”.  He submitted that because he had to work and the cancellation of his visa meant that he could not work in Australia he was constructively required to work overseas by a private employer, the employer being Sufi Weaving.  This argument strains the words of the Instructions and there is no evidence of any requirement that he work for that particular private employer, notwithstanding it is his family company.  I am not persuaded by it.

10.     Mr Saleem also submitted that he was self employed and that frequent travel abroad was essential to the successful operation of the business, whether for an extended period or on a regular short term basis. I note that Mr Saleem’s absence from Australia was due to the cancellation of his visa. He was abroad regardless of any considerations affecting his business. In addition, there is no evidence before me that frequent travel abroad was essential to the successful operation of the business which, according to his evidence, centred on the manufacture of goods made to Australian specifications and for consumption in Australia.

11.     It was also Mr Saleem’s evidence that it was his wife’s health and the birth of their two children that kept him in Pakistan. He said that his visa was reinstated at the end of December 2005 but he was not able to return to Australia because he had married in October 2005 and they were expecting their first child in February 2006. He described it as “not the best time” to leave his wife alone and come back to Australia. He described her as having had a difficult pregnancy, a difficult delivery and in need of care following the birth. He also said she suffered similarly during her second pregnancy and the birth of their daughter in September 2007.

12.     I am not satisfied that extended travel abroad was essential to the successful operation of Mr Saleem’s business. Rather, Mr Saleem said in his evidence that were it not for his family obligations he would have been on the first plane to Australia once his visa was reinstated.

13.     There is no evidence, nor any submission made, that Mr Saleem was 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.

14.     On the basis of these conclusions, Mr Saleem’s activities do not fall within the circumstances described in the Instructions.

Were Mr Saleem’s activities nevertheless beneficial to the interests of Australia?

15.     The use of the word “usually” in the first line of paragraph 4.3.21 of the Instructions lends itself to the view that there may be instances in which the discretion may be exercised even though none of the three circumstances set out in the paragraph arise. Nevertheless, the activities must still, in accordance with the Act, be beneficial to the interests of Australia. I will deal with this essential requirement first.

16.     

The phrase “beneficial to the interests of Australia” was explained by Einfield J in Minister for Immigration, Local Government and Ethnic Affairs v Roberts (1993)

41 FCR 82 at 87:

“It seems to me that the term “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.”

17.     In Lin v Minister for Immigration and Citizenship [2009] 176 FCR 371, Foster J added to Einfield J’s observations that the advantage or benefit must be real and not merely potential or hypothetical and that it must be identifiable and not de minimis.

18.     Mr Saleem described his family business as including making yarn out of cotton, weaving fabric from the yarn, dyeing the fabric and cutting and sewing it into products including sheets. He described his role in the business as encompassing everything to do with the Australian market including marketing, ordering, costing, procuring, design, checking sampling, production control and packaging including packing material, bar codes and washing instructions.

19.     Mr Saleem said he did US$1.05 million in transactions with Australia last year and is on track to meet that figure again. He described the Australian market as very quality conscious and as having very high standards. He described himself as having extensive knowledge of the Australian market and its preferences as a result of having lived in Australia.

20.     A large volume of transaction records were tendered in evidence, the contents of which were not disputed. These records support Mr Saleem’s oral evidence of business from 2006 and of Mr Saleem’s assertion that, to date, he has conducted a total of US$2,826.607.88 in transactions with Australian purchasers. There is no dispute as to this volume or amount.

21.     

Mr Aspi Bulsara, Commercial Manager for an indenting company

Datum Limited, gave evidence that he had made approximately US$500,000 worth of transactions with Mr Saleem from August 2006 to June 2008. Mr Bulsara said he obtains mattress covers from Mr Saleem for Australian clients including Fantastic Furniture, Clark Rubber, Sleeping Giant, Sleep City and others, which were made to order according to his client’s specifications. Mr Bulsara described having an excellent and mutually beneficial business relationship with Mr Saleem who has been very helpful to Datum’s business and to Datum’s clients.

22.     In cross examination, Mr Bulsara said that Mr Saleem is not the only supplier of mattress covers to Australia. Mr Bulsara outlined that, over the last eight years, textile manufacturing in Australia has dwindled along with closures of businesses and losses of jobs in the Australian textile industry to the extent that now no-one is manufacturing low end textiles in Australia. However, he said that his business and that of Mr Saleem has suffered no decrease.

23.     Mr Neil Samuel, Director of Dryen Australia, gave evidence of changes in the textile industry over the last 20 years. Dryen Australia is an importer and distributor of domestic bedlinen for Australian department stores and chain stores. Mr Samuel said that Dryen had been a manufacturer of textiles until the mid 1980s when the textile industry in Australia suffered severely as a result of the reduction of import duty and the elimination of import quotas. Following this, production moved offshore to countries like China, India and Pakistan. Smaller companies closed down and Dryen moved its manufacturing operations offshore.

24.     Mr Samuel initially said there are not many suppliers of bed linen for the Australian market because it is considered to be a relatively small market with high standards. Mr Samuel said that Mr Saleem understands the Australian market and understands how to meet its requirements. However, Mr Samuel said he had 10 to12 suppliers from Pakistan out of 20 overseas suppliers overall. Mr Samuel said he obtains approximately 5 to 10 % of his total product from Mr Saleem although some other suppliers from Pakistan supply as much as or more than Mr Saleem. He, like Mr Bulsara, described a very good and mutually beneficial business relationship with Mr Saleem.

25.     Mr Samuel said the current global economic crisis has rendered the bed linen market a buyers’ market. As a result, many international manufacturers who are suffering financially are now willing to supply the Australian market. Mr Samuel outlined that the usual mark-up to determine the retail price for Mr Saleem’s products is a factor of 5 for US$. He also said that from August 2006 to June 2008 the products supplied to Dryen by Mr Saleem generated purchase orders for Dryen in the sum of US$675,334.

26.     

I note that letters written by each Mr Bulsara and Mr Samuel express the opinion that Mr Saleem’s activities in Pakistan, in his family business, are beneficial to the interests of Australia. I note that the content and paragraphs of each of their letters are identical. The opinions were confirmed in their oral evidence. The opinions were largely based on perceived benefit to Australian consumers by having

Mr Saleem’s goods made available to them.

27.     Evidence was given of the profit generated for Australian retail stores such as K Mart arising from Mr Saleem’s business with Mr Samuel’s company.. There is generally a 500% mark up by retailers on goods supplied by Mr Saleem. This, on its face value, is advantageous to the retailers concerned. However, I have no evidence of its impact on the consumers of the goods who fund this advantage to the retailer.  There is no evidence before me of an increase in employment as a result of this retail mark up and any argument that there has been is speculative. It was submitted by Mr Saleem that the profit generated by this mark up also results in dividends to shareholders and in the payment of tax to the Commonwealth government which in turn represents a measurable addition to the gross domestic product of Australia. I have not been presented with any evidence of this and so I have no basis on which to conclude that the mark up imposed by retailers on goods supplied by Mr Saleem is a benefit, or generates a benefit, of the public kind contemplated by Einfield J in Roberts.

28.     The only asserted benefit that remains is the availability of Mr Saleem’s goods to Australian consumers.

29.     

I am concerned that by accepting the mere availability of goods to Australian consumers as being in the beneficial interests of Australia, the door would be opened to any exporter of benign goods to Australia to be characterised as involved in activity that would give rise to the exercise of the discretion. Given the provisions of the Act and the opinions expressed by the Federal Court in Roberts and in Lin,

I consider this would strain the words of the statute.

30.     It must be a question of degree. At one end of the scale there are goods, such as life saving medication, that may, by their mere availability, confer great benefit on Australia and its people. At the other end of the scale are goods of a frivolous nature. Mr Saleem’s goods fall somewhere in the middle of this continuum. Another factor would be availability or supply. On this scale there may be scarce goods, supplied only by the particular applicant for citizenship. At the other end there may be goods that are ubiquitous and supplied by many others. The evidence is that Mr Saleem is and was by no means the only supplier of mattress covers and bedlinen to Australia from Pakistan. Such goods are imported from other parts of the world as well. The goods supplied by Mr Saleem are useful but not essential and they are also supplied by many others.

31.     I do not think this degree of benefit to Australian consumers is sufficiently substantial or significant so as to place it in the realm of the public benefit contemplated by Einfield J in Roberts.

32.     For these reasons I find that the activities engaged in by Mr Saleem were not beneficial to the interests of Australia within the meaning of section 7(8)(4) of the Act. Such a conclusion in relation to this statutory requirement renders unnecessary any further consideration in respect of the provisions in the Instructions.

33.     It follows that Mr Saleem does not meet the residence requirements for a grant of citizenship.

decision

34.     The decision under review is affirmed.

I certify that the 34 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member Bell

Signed:...........................[sgd].................................................
  Associate: Lloyd Doherty

Dates of Hearing  15 October 2009
16 October 2009

Date of Decision  24 December 2009
Date of written reasons  24 December 2009     
Representative for the Applicant  Mr Brett Slater, Solicitor
Representative for the Respondent                  Mr Brendan O’Brien, Solicitor