Naidu and Minister for Immigration and Multicultural and Indigenous Affairs

[2005] AATA 1260

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2005] AATA 1260

ADMINISTRATIVE APPEALS TRIBUNAL     Nº V2005/49, V2005/69, V2005/70

GENERAL ADMINISTRATIVE DIVISION

Re:      POOVENTHIRAN NAIDU,

IRENE NAIDU and LETITIA NAIDU

Applicants

And:MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS      AFFAIRS

Respondent

DECISION

Tribunal:       G.D. Friedman, Senior Member

Date:             20 December 2005

Place:            Melbourne

Decision:The Tribunal affirms the decisions under review.   

(sgd) G.D. Friedman
  Senior Member

CITIZENSHIP ‑ application for Australian citizenship ‑ failure to satisfy residence requirements - business interests in South Africa - promotion of Indian culture - whether activities outside Australia beneficial to the interests of Australia ‑ exercise of discretion

Australian Citizenship Act 1948 s 13(1)(d), 13(1)(j), 13(1A), 13(4)(b)(i), 13(9)

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

Re Fraser and Minister for Immigration, Local Government and Ethnic Affairs (AAT No. S91/205, 15 October 1991 (unreported)

Re Ho and Minister for Immigration and Ethnic Affairs (1994) 34 ALD 664

Re McCarthy and Minister for Immigration, Local Government and Ethnic Affairs

(1993) 30 ALD 447

Re Pai and Minister for Immigration and Ethnic Affairs (1994) 35 ALD 762

Re Taechaubol and Minister for Immigration and Multicultural Affairs (2001) AATA 425

Re Tsui andMinister for Immigration, Local Government and Ethnic Affairs (1991) 24 ALD 236

REASONS FOR DECISION

20 December 2005  G.D. Friedman, Senior Member

1.      Pooventhiran Naidu is a businessman who lives in Durban, South Africa with his wife Irene, daughter Letitia and son Leelan.  The family (except Leelan) is seeking Australian citizenship after living in Melbourne as permanent residents on business skills visas from 14 May 2000 to 30 December 2002, when they returned to South Africa.  Letitia had returned on 14 December 2001.

2.       The family does not satisfy the normal residence requirements for citizenship. Therefore the issues before the Tribunal are whether the family members were engaged in activities outside Australia that were beneficial to the interests of Australia or otherwise justify exercise of the discretion in the Australian Citizenship Act 1948 (the Act) in their favour.

WERE THE APPLICANTS ENGAGED IN ACTIVITIES BENEFICIAL TO THE INTERESTS OF AUSTRALIA?

3.      Mr Naidu said that he arrived in Australia in 2000 with his family as the holder of a subclass AD 127 (Business Skills Migrant) visa.  He said he established a business as a property developer, building several houses in Melbourne, which resulted in the creation of employment in Australia and an increase in the economic activity of the building industry.  However, he acknowledged that the business is conducted by Burbank Homes and he has little, if any, day-to-day involvement.  He explained that because of health problems Letitia returned to South Africa in 2001 to complete the last three years of her secondary schooling.  However, in 2002 the family decided to re-locate to Durban so that they could be together until Letitia finished school.  Mr Naidu stated that in November 2002 he visited the respondent’s office in Melbourne to enquire about applying for Australian citizenship, and was told, incorrectly, that first he had to complete a 36-month survey of his business activities.

4.      The remaining family members returned to South Africa in December 2002 and he submitted the survey in August 2003.  He said that he resumed business activities in Durban, including property development and the manufacture of roof trusses.  In addition, he began to import high-quality Madison Architectural Doors (the doors) from Australia and sell them through his showroom.  However, after one shipment he realised that because of currency fluctuations the doors became too expensive, and importation ceased.

5.      Mr Naidu told the Tribunal that he visited the Australian High Commission in Pretoria, where he lodged the citizenship applications on 28 November 2003.  His application included Leelan.  He said that at the time he believed that he satisfied the residence requirements, and blamed High Commission staff for the delay in lodgement of the applications which prevented him from meeting the residence requirements by a small margin (about 4 days).

6.        Mr Naidu stated that he has been engaged in a consistent pattern of activities that are beneficial to the interests of Australia, particularly the importation of the doors, and he described himself as an exporter of Australian goods.  He also referred to the advertising of the products in Durban newspapers and display at his showroom.  He said that on return to South Africa he built six houses, and intends to invest the profit in his Australian property development business when he returns to Australia.  Mr Naidu stated that he owns a house in Australia, and encourages other people to invest in Australia, which he promotes as an immigration destination.

7.        Mr Naidu explained that he has investigated other business opportunities, such as importing Australian pineboard panels for kitchen furniture and Australian earthmoving equipment, although neither proposal has progressed to the implementation stage.  Under cross-examination he agreed that for business reasons he did not disclose in his advertising material that the doors are manufactured in Australia.  He also agreed that he would be able to return to Australia as a permanent resident, but emphasised that citizenship for himself and the family would be more beneficial to them if something happened to him in the future.

8.        Ms Naidu and Letitia stated that they have been involved in activities that are beneficial to the interests of Australia because they are learning about South African and Indian culture, which will add to the cultural diversity of Australia when they return.  Ms Naidu described herself as a housewife and explained that the family is anxious to return to Australia, particularly because of the crime situation in South Africa and the greater opportunities for the children in Australia, but conceded that she has not made any preparation for moving the family to Melbourne.  She said that she encourages professional people in South Africa to migrate to Australia.  Letitia said that she is keen to transfer to Monash University on her return to Australia, although she admitted that she has not made any inquiries about enrolment or transferring from her current university. 

9.        In relation to whether the applicants have engaged in activities outside Australia that are beneficial to the interests of Australia, the Tribunal notes that there must be some objective benefit to Australia (Minister for Immigration, Local Government & Ethnic Affairs v Roberts (1993) 41 FCR 82); and the benefit should be largely as a result of an applicant’s activities (Re McCarthy and Minister for Immigration, Local Government and Ethnic Affairs (1993) 30 ALD 447). In Re Fraser and Minister for Immigration, Local Government and Ethnic Affairs (AAT No. S91/205, 15 October 1991) the Tribunal held that activities beneficial to the interests of Australia refers to the public interests of Australia such as activities that will achieve recognition of Australia or increase international respect and goodwill for Australia.

10.      The Tribunal acknowledges that on his return to South Africa Mr Naidu prepared advertisements and brochures for the doors with an intention to sell the imported items from his showroom, although he did not disclose publicly that the doors were manufactured in Australia.  The only tax invoice provided by Mr Naidu relating to the sale of the doors during the relevant period totals $9246.60, a relatively small amount.  Therefore, the sale of the doors may have been an activity of benefit to him and his private business interests, but was of no demonstrable or tangible interest to Australia, such as the promotion of export sales or development of overseas markets (Re Pai and Minister for Immigration and Ethnic Affairs (1994) 35 ALD 762), the creation of employment or enhancement of the reputation of Australian companies or the Australian building industry.

11.      At the time of Mr Naidu’s application for citizenship (Re McCarthy), there was little activity that can be identified as fulfilling a public interest benefit to Australia.  In addition, there is no close nexus between Mr Naidu’s overseas activities and subsequent benefit to Australia (Re Tsui andMinister for Immigration, Local Government and Ethnic Affairs (1991) 24 ALD 236).

12.      The 2003 Profit and Loss statement for Mr Naidu’s property development company in Australia shows exports of $447.00.  The company operates only in Australia, and is managed wholly by another company.  The company made a loss of $43,827.00 in 2003.  There is no evidence that the business has contributed, in any significant way, to increased employment or economic activity in Australia.

13.      Ms Naidu and Letitia claim that their activities in learning about South African and Indian culture will add to the cultural diversity of Australia when they return.  However any such benefit is intangible, has not yet accrued and may be described as residual, remote, indirect or speculative (Re McCarthy).  Similarly, there is no demonstrable benefit from Ms Naidu’s claim that she is encouraging professional people to migrate to Australia. 

14.      For these reasons the Tribunal finds that during the relevant period the applicants were not engaged in activities outside Australia that were beneficial to the interests of Australia (s 13(1A) of the Act).

ARE THERE ANY OTHER MATTERS THAT WOULD JUSTIFY THE EXERCISE OF THE DISCRETION?

15. As the family decided to return to South Africa for personal reasons, such as Letitia’s schooling and her health, the absence from Australia does not constitute an exceptional circumstance that would justify the exercise of the discretion in s 13(4)(b)(i) of the Act (Re Ho and Minister for Immigration and Ethnic Affairs (1994) 34 ALD 664).

16.      Although the family owns a house in Melbourne, there is no evidence that they have made any realistic plans for moving to Australia such as enrolling the children in school or university or even making basic inquiries.  Nor is there evidence that the family would reside in Australia immediately, or very soon after, the grant of citizenship (Re Taechaubol and Minister for Immigration and Multicultural Affairs (2001) AATA 425). For these reasons the Tribunal is not satisfied under s13(1)(j) of the Act that, if granted citizenship, the family is likely to reside, or continue to reside, in Australia, or to maintain a close and continuing association with Australia.

17. As Mr and Ms Naidu are not Australian citizens the discretion in s 13(9) of the Act is not applicable to the applicants.

OTHER MATTERS

18. There was no dispute that Mr Naidu failed by a small margin to meet the residence requirement, but the Tribunal does not accept that the number of days involved is a relevant factor in determining whether to exercise the discretion in s 13 of the Act. As conceded by the applicants’ counsel at the hearing, there is no basis for a claim that the doctrine of estoppel applies to prevent the respondent from relying on the provisions of s 13(1)(d) of the Act concerning residence requirements.

DECISION

19.      The Tribunal affirms the decisions under review.

I certify that the preceding nineteen [19] paragraphs are a true copy of the reasons for the decision of G.D. Friedman, Senior Member

(sgd)         Lydia Zozula

Associate

Dates of hearing:  9 November 2005, 8 December 2005

Date of decision:  20 December 2005
Counsel for the applicants:                 Mr J. Gibson
Solicitor for the applicants:                  Tan and Tan
Advocate for the respondent:             Ms E. Arduca
Solicitor for the respondent:                Australian Government Solicitor