Ng and Anor and Minister for Immigration and Multicultural and in Digenous Affairs

[2003] AATA 1221

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2003] AATA 1221

ADMINISTRATIVE APPEALS TRIBUNAL      )

)              N2003/105
  N2003/106

GENERAL ADMINISTRATIVE DIVISION

)

Re

Wai Hon NG

Mei Yee CHU

Applicants

And  Minister for Immigration and Multicultural and Indigenous Affairs

Respondent

DECISION

Tribunal  Ms N Isenberg, Member

Date4 December 2003

PlaceSydney

Decision The Administrative Appeals Tribunal affirms the decision under review.

[Sgd] Ms N Isenberg, Member

CATCHWORDS

CITIZENSHIP – application for Australian citizenship under section 13 of the Act – application refused on basis that the Applicant failed to meet criteria in subsections 13(1)(d) and (e) – issue whether discretion should be exercised that the Applicant was engaged in activities beneficial to the interests of Australia – Applicant submitted that it was inconsistent that their permanent visas were extended on the basis of their ‘substantial business ties with Australia which are of benefit to Australia’ – subclause 155.212 of Migration Regulations 1994 and section 13(4) of the Act are different – discretion under section 13(4) is to be applied only in exceptional circumstances – alternative test – decision affirmed

LEGISLATION

Australian Citizenship Act 1948

Migration Regulations 1994

Australian Citizenship Instructions, Chapter 4 (No5)

CASE LAW

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

McCarthy v Minister for Immigration, Local Government and Ethnic Affairs (1993) 30 ALD 447

Minister for Immigration, Local Government and Ethnic Affairs v Roberts 29 ALD 656 at 660

Chotiprasiddhi and Department of Immigration and Ethnic Affairs (AAT 9688 23 August 1991)

Tinamisan v Minister for Immigration and Multicultural Affairs (1996) 43 ALD 349

Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634

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

Re Lam and Department of Immigration and Ethnic Affairs (1995) 39 ALD 469

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

Re Kow v Minister for Immigration and Ethnic Affairs 30 ALD 916

Hai Wang Ge and Minister for Immigration and Multicultural and Indigenous Affairs [2003] AATA 514

REASONS FOR DECISION

4 December 2003 Ms N Isenberg, Member

DECISION UNDER REVIEW

1. The decision under review was the decision of the Minister for Immigration and Multicultural and Indigenous Affairs (“the Respondent”) dated 13 December 2002 to refuse Mr Wai Hon Ng and Ms Mei Yee Chu’s (“the Applicants”) application for Australian citizenship under section 13 of the Australian Citizenship Act 1948 (“the Act”).

APPEARANCES

2.      A hearing was held before the Tribunal on 29 and 30 September 2003 at which the Applicants appeared without representation, but assisted by Ms O Sit, their migration agent.  The Respondent was represented by Ms E Warner, solicitor, of the Australian Government Solicitor’s.

BACKGROUND

3.      Mr Ng was born in Hong Kong on 23 June 1956 and Ms Chu, his wife, was born in Hong Kong on 31 July 1961.  On 22 August 1993, they arrived in Australia, holding permanent resident visas.

4. On 14 May 2002, the Applicants lodged applications for Australian citizenship under section 13 of the Act, but these were refused on 13 December 2002. The basis of the decision was that they failed to meet the criteria set out in subsections 13(1)(d) and (e) of the Act.

5.      Those subsections require an applicant for Australian citizenship to have resided in Australia for a period of one year during the preceding two years before application, and a period of two years during the preceding five years (‘the residency requirements’).  At the date of application, Mr Ng had been present in Australia for 28 days in the previous two years, and 57 days in the previous five years.  Ms Chu had been present in Australia for 116 days in the previous two years, and 248 days in the previous five years.

6.      There was no dispute that the Applicants do not comply with the residency requirements.

ISSUE BEFORE THE TRIBUNAL

7. When an applicant for citizenship cannot meet the residency requirements of section 13(1)(d) and (e), subsection 13(4)(b)(i) provides a discretion to treat a period of absence as a period during which an applicant was present in Australia as a permanent resident, provided that the applicant was engaged in activities “beneficial to the interests of Australia”.

8.      The Applicants relied upon their involvement with Domsonss Pty Limited (“Domsonss”), an Australian incorporated company of which they were the sole directors and shareholders.  Their activities involved exporting and marketing Australian opals and emu leg skins purchased by Domsonss from an Australian based supplier, Double Life Pty Limited (‘Double Life’). 

9.      There was no dispute that the Applicants cannot meet the residency requirements and the issue before the Tribunal is therefore whether the discretion should be exercised on the basis that the activities of the Applicants were beneficial to the interests of Australia..

AUSTRALIAN CITIZENSHIP INSTRUCTIONS

10. Chapter 4 of the Australian Citizenship Instructions (‘the Instructions’) sets out the policy guidelines which are to be applied by the Respondent in assessing applications for the grant of a Certificate of Australian Citizenship under the provisions of section 13 of the Act. The Instructions in operation at the date of the application were those which came into effect on 1 November 2001, ‘No 5’.. By the date of the decision under review (13 December 2002) new Instructions had been issued but, to the extent relevant, were the same.

EVIDENCE: Documents

11.     The Tribunal had before it documents lodged pursuant to section 37 of the Administrative Appeals Tribunals Act 1975 ("the T-documents"), which the Tribunal took into evidence.

12.     In addition, the following documents were tendered:

Exhibit	Document	Date
A1a	Statement of Facts & Contentions for DOMSONSS Pty Ltd	28 April 2003
A1b	Financial Statements of Domsonss for the year ended 30 June 2002	28 April 2003
A1c	Domsonss Pty Ltd business plan	28 April 2003
A1d	Domsonss Pty Ltd business profile	28 April 2003
A1e	Domsonss Pty Ltd company profile	28 April 2003
A1f	Supporting document for review of decision for granting of Australian citizenship	28 April 2003
R1	Respondent’s Statement of Facts & Contentions	30 June 2003
R2	Movement details of Applicants

13.     Written submissions were also provided by both parties.

EVIDENCE: the Applicants

14.     The Applicants gave evidence and were cross-examined on behalf of the Respondent.  I also asked them questions.

15.     They said that they first came to Australia in 1993 and decided then that they wanted to settle here, so applied for permanent resident visas.  At the time, however, Mr Ng’s mother was elderly and unwell.  Consequently, she could only be left for short periods.  As the eldest son Mr Ng had a responsibility to care for her.  In any event, all other members of the family lived either in Australia or New Zealand. 

16.     In 1993 in order to care for his mother, Mr Ng left his job as export manager for the company he had worked with for 12 years which had sold items like toys and stationary to European and US interests.  He took on part time work with his uncle who had a factory in China, also exporting toys and stationary.  The family owned two apartments; they lived in one and rented out the other.

17.     In 1996, Ms Chu left her job as a management consultant, her training being in commerce and economics.  She came to Australia for 5 months, staying with her sister who was a student.  Her eldest child was born here.

18.     During that time, Mr Ng visited twice, otherwise remaining in Hong Kong to care for his mother and to attend to his part time work in his uncle’s factory.

19.     In 1997, Ms Chu came to Australia again, for about seven days, and again stayed with her sister.

20.     It was not until 2000, when one of Mr Ng’s sisters returned to Hong Kong to take over caring for their mother, that the Applicants were able to progress their consideration of a move to Australia.  Ms Chu came to Sydney with their children, renting a flat in Pitt St, and remained here for 8 months.  The elder child went to day care because, she said, she wanted her children to have an understanding of Australian culture.

21.     Because they did not know what sort of work they might do when they came to Australia permanently, Ms Chu undertook internet research and had discussions with suppliers about possible business opportunities.  They were shown by suppliers how to select opals and how they could be made into finished products.

22.     In February 2000 a company was incorporated, Domsonss Pty Limited, of which they are the sole shareholders and directors (Exhibit A1f).  The registered office of the company, an address in Blacktown, is the home of a friend who forwards mail to the Applicants in Hong Kong.

23.     Mr Ng prepared a catalogue and a brochure (T7) and took samples with him on his return.  He was confident of finding a market in view of his experience in sales and because he had friends in business in China.  While gold is popular in Chinese culture the Applicants considered that opals might have a market, initially because of novelty, but when coupled with the traditional gold, as a prestige ‘western’ item.

24.     The company made its first purchase of opals in May or June 2000 and regularly re-ordered every two to three months by telephone or fax, from their supplier Double Life.  Last year exports were of about 50 kgs of raw opals.

25.     The raw opals are supplied by Double Life to Domsonss, which exports them, in that form, to Hong Kong.  The Applicants then arrange for the gems to be cut and polished and set to client specifications.  About 40 percent of the opals require polishing and this costs about $A 5000.  When asked to demonstrate where in the accounts (Exhibit A1b) the expense of the cutting, polishing and setting appeared, the Applicants were unable to do so and said they had ”sent everything to the accountants”.  They said it must have been included in the ”directors fee” or, in the most recent accounts, (Exhibit A1b) in ”commissions”.

26.     Invoices were referred to (T7).  When asked why the price included Australian dollars, when the entire transaction took place in Hong Kong, Mr Ng said that that was ”for accounting purposes”.

27.     Mr Ng said that about two or three years ago he noticed that Double Life also supplied emu leg skins.  He recalled that in Hong Kong he had seen emu eggs decorated with Chinese characters.  He thought that the emu leg skins might have some appeal for making items such as uniforms, shoes, bags and belts because it is so hard-wearing.  Emu leg skins also have been ordered at two - three monthly intervals.

28. It was suggested to the Applicants in cross-examination that, as they retain permanent resident visas valid to May 2006, they could continue to come and go as they please, until they meet the residence requirements of the Act. In response they said that they were doing something good for Australia. Also it was said that their customers would have more confidence in their products if they were being sold by them as Australian citizens, and that it was a business advantage to know Australia well.

SUBMISSION: Applicants

29.     In support of their contentions the Applicants provided a statement (Exhibit A1f) and submissions.  It was contended that Domsonss had contributed to stimulating economic growth and attracted foreign investments in Australia.  The company’s business objectives (Exhibit A1c) are to export good quality Australian products to the Asia-Pacific Region and to promote the use of Australian products internationally.

30.     China has long been an important country for Australian exports and the Applicants submitted that their business has further strengthened the relationship between Australia and China.

31.     The Applicants contended that their business has also generated income, job opportunities and production facilities and all these have brought about economic, social and cultural benefits to Australia.  Trading of opals and emu leg skin has helped Australia to become more competitive in the international market place and this in turn has raised the general status of Australian products. In addition, the trading of different types of Australian products can deliver diversity to Australian’s national income, widening its markets and reducing its vulnerability to global economic downturn.

32.     It is the Applicant’s intention to expand the business in the Asia Pacific region, especially in cities of China.  The increased scale of export was said to be able to bring substantial income and benefits to Australia.

33.     The Applicants submitted that they have succeeded in raising the Chinese people’s awareness of the Australian products, particularly opals.  The image of Australia has been enhanced through export of high quality Australian products.

34.     Several of their business partners and clients have shown interest in establishing businesses in Australia and have asked for advice on investment in Australia.  The Applicants submitted that, through their business, they have successfully promoted the attractiveness of the Australian market to foreign investors.

35.     The Applicants explained the importance of cultivating personal relationships with their business partners and customers so as to promote Australian products and to be able to offer the most competitive price.

36.     To meet the needs of customers it was necessary to monitor the cutting, polishing and fabricating process so as to guarantee quality.  They also help customers design their own pieces and arrange for a jeweller in Hong Kong to create the finished product. 

37.     The running of a showroom to display the finished products of opals and emu leg skins has proven to be a successful marketing strategy.  Direct contact with trading firms at the showroom has enabled them to expand the sales network.

38.     The Applicants submitted that through their marketing efforts, they have successfully ‘paved the way’ for exporting goods from Australia to Hong Kong and China.  This has encouraged their company to be more innovative in product design and in the use of new technology in manufacturing end products.  They have established a good reputation in trading good quality Australian goods to clients.  A number of firms in China have approached them to discuss exporting more types of Australian goods (eg. red wine, lamp chops, ostrich meat, etc.) to China in partnership with their company.

39.     The Applicants also submitted that it was inconsistent of the Respondent to have extended their permanent resident visas on the basis of their ‘substantial business ties with Australia which are of benefit to Australia’ and to subsequently determine that the business is not ‘beneficial to the interests of Australia’. 

SUBMISSION: Respondent

40. It was the Respondent’s submission that the Applicants were not at the relevant times engaged in activities that were beneficial to the interests of Australia. The discretion under subsection 13(4)(b)(i) of the Act should therefore not be exercised in their favour.

41. Ms Warner submitted that the discretion under section 13(4)(b)(i) of the Act should be used sparingly, as it is intended to be applied only in exceptional circumstances and that the discretion provides an exception to the rule that certain periods of residence in Australia are required before citizenship can be granted. (Ho v Minister for Immigration and Ethnic Affairs (1994) 34 ALD 664)

42. Ms Warner submitted that the terms of section 13 of the Act necessarily infer that some inherent quality of an applicant’s activities can be described as ‘beneficial to the interests of Australia’.. Ms Warner submitted that the Applicants’ activities in Hong Kong were primarily of a commercial nature, aimed at maximising income and profits for their commercial enterprise as well as assuring substantial personal income. Their activities were predominantly to promote their private interests through Domsonss, a company of which they were the sole directors and shareholders.

43.     Ms Warner further referred me to the accounts of the Applicants’ company (T7, p.57) which demonstrate that sales by Domsonss during the 2001 financial year totalled $234,093.  The net trading profit amounted to $27,473, of which $6,000 was payable as tax to the Australian Taxation Office (T7, p.59). Sales increased in 2002 to $364,075(Exhibit A1b).  In the same period directors fees/’commissions’ increased from $100,000 to $204,390.50.

44.     Any claimed revenue flow to Australia was therefore said to be tenuous.  There was nothing more than a commercial enterprise in the business of maximising profit to its directors/shareholders and minimising payouts to Australian suppliers in order to secure overall profit.  Any flow on to Australia in monetary terms was an incidence of ordinary business only.  Any tax payments made were nothing more than an observance of the laws of Australia.

45.     Ms Warner said that if any benefit flowed to Australia, it was too insignificant and remote to warrant a favourable exercise of the discretion conferred by that subsection (see McCarthy v Minister for Immigration, Local Government and Ethnic Affairs (1993) 30 ALD 447).

46.     Ms Warner submitted that there must be a demonstrated public interest and referred me to the Minister for Immigration, Local Government and Ethnic Affairs v Roberts 29 ALD 656. At 660, on the question of “activities beneficial to the interests of Australia’, Einfeld J stated:

“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.” [emphasis added]

47.     In Chotiprasiddhi and Department of Immigration and Ethnic Affairs (AAT 9688 23 August 1991) at paragraph 10, DP McMahon made the following comments:

“The applicant’s previous activity in importing liquids and powders would not be regarded as activity of a public interest nature.  The fact that the applicant is finance director of a company which imports livestock from Australia into Thailand, also can not be said to be activity having a public interest.” ([emphasis added]

48.     Ms Warner also referred to Tinamisan v Minister for Immigration and Multicultural Affairs (1996) 43 ALD 349, which found that there must be a clear nexus between the activities in which an applicant engages overseas, and the claimed objective benefits to Australia.

49.     In relation to the Applicants submissions that it was inconsistent to extend their permanent residence applying the ‘same test’, namely that under subclause 155.212 of the Migration Regulations 1994 (“the Regulations”) they had “substantial business …. ties with Australia which are of benefit to Australia”, Ms Warner submitted that the scale of the Applicants’ export business was so small that it ought not to have satisfied the delegate that they met the requirements.  In any event, the Tribunal is not bound to agree with the delegate’s finding in this regard, nor can any question of estoppel arise.

FINDINGS

50.     In coming to the correct and preferable decision, I took into account all the evidence, submissions, case law, the relevant legislation and the Instructions.

51. There was no dispute that the Applicants did not meet the residency requirements of section 13(1)(d) and section 13(1)(e) of the Act. It remained for me to consider if the Applicants were engaged in activities [the Respondent] considers benefit to the interests of Australia.

52.     I turn first to the Instructions, as these had been relied on by the delegate of the Respondent in reaching the decision under review.

53.     In Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634 Brennan J at page 642 decided that the Tribunal:

“is as free as the Minister to apply or not to apply that policy.  The Tribunal’s duty is to make the correct or preferable decision in each case on the material before it, and the Tribunal is at liberty to adopt whatever policy it chooses, or no policy at all, in fulfilling its statutory function.”

54.     However His Honour later recorded (page 643)

“If the Tribunal applies Ministerial policy it is because of the assistance with which the policy can furnish in arriving at the preferable decision in the circumstances of the case as they appear to the Tribunal.  One of the factors to be considered in arriving to the preferable decision in a particular case is its consistency with other decisions in comparable cases and one of the most useful aids in achieving consistency is a guiding policy.  An appropriate guiding policy should thus be applied….”

55.     At page 645 His Honour decided;

“When the Tribunal is reviewing the exercise of a discretionary power reposed in a Minister and the Minister has adopted a general policy to guide him in the exercise of the power, the Tribunal will ordinarily apply that policy in reviewing the decision unless the policy is unlawful or unless its application tends to produce an unjust decision in the circumstances of the particular case.  Where the policy would ordinarily be applied, an argument against the policy itself or against its application in the particular case will be considered, but cogent reasons will have to be shown against its application, especially if the policy is shown to have been exposed to parliamentary scrutiny.”

56.     The Applicants themselves referred me to McCarthy (supra) as authority for my following the Instructions.

57.     In my view, the policy is consistent with the discretion to be exercised and I see no reason to depart from it.

58.     In referring to the Instructions I have adopted the numbering referred to in the decision under review.

59.     The first element of 4.5.12 of the Instructions restates the leading case of Roberts (supra) in which Einfeld J said at 660:

“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 character, and means more than the private interests of the [person applying for citizenship].  The section requires some objective benefit to Australia.”

60.     Whether an applicant for citizenship has been engaged in activities beneficial to the interests of Australia is to be assessed objectively. 

61.     The second element of 4.5.12 of the Instructions refers to Re Fraser and Minister of State for Immigration, Local Government and Ethnic Affairs (unreported AAT, Decision No S91/205, 15 October 1991) :

…the tribunal stated that the term “means 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 of Australia.”

62.     In relation to activities beneficial to the interests of Australia I had to weigh up whether the Applicants’ activities were primarily to their private benefit or achieved recognition for Australia and were beneficial to the public interests of Australia.

63.     Ms Warner had referred me to Re Ho (supra) where the Tribunal considered the application of the discretion in section 13(4)(b)(i) of the Act. Deputy President McMahon stated at 671:

“…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.” [emphasis added]

…

64.     And again at paragraph 670:

“It can not be said that commercial activities designed to promote the sales of one or two companies are activities of a kind intended to be covered by the ameliorative provisions of this paragraph.  Something more is necessary, and that something must be of a public character.”  (emphasis added)

65.     See also Re Lam and Department of Immigration and Ethnic Affairs (1995) 39 ALD 469; Tinamisan (supra)).

66.     Paragraph 4.5.13 of the Instructions requires that:

“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)”

67.     The benefits to Australia must not be so remote, indirect and speculative as regards Australia’s interests that they cannot be taken into account (Re Tsui andMinister for Immigration, Local Government and Ethnic Affairs (1991) 24 ALD 236).

68.     The paragraph continues that the benefit should be largely as a result of the applicant’s activities and must not be residual, remote, indirect of speculative, which adopts the decision in Re McCarthy.  The activities must be of benefit at the time the Applicant is engaged in them.  The Applicants had contended that their business can in future widen Australia’s markets and reduce Australia’s vulnerability to global economic downturn.  They propose to expand their business in the Asia Pacific region, which they hope will bring substantial increased income to Australia.  It was said that business associates have shown interest in establishing businesses in Australia, but there was no evidence that the Applicants’ efforts have in fact brought about investment by third parties.  In all these matters any benefits to Australia remain in futuro.

69.     Paragraph 4.5.14 of the Instructions provides:

“If the discretion is available then, as a matter of Ministerial policy, the discretion will usually only be exercised if all of the following requirements are satisfied:

-         The applicant, either for an extended period or on a regular short-term basis was:

-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;

-the applicant 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 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);”

70.     The Applicants submitted that they needed to be overseas to meet the needs of customers by supervising the finishing process so as to guarantee quality.  They also assist customers in the design phase.  Further, they said they needed to run a showroom to display the finished products.  Neither Applicant however has experience in jewellery design and manufacture.  They have staff in Hong Kong and I do not accept that their personal supervision is required in the design or finishing stage.  Similarly a showroom is just that, a place where products are displayed and viewed.  While I do not doubt that marketing any product overseas requires frequent travel to potential markets, virtual permanent attendance overseas is not what is intended in the Instructions.

71.     It should be noted however that there is nothing in Roberts (supra) to say that the fact that an applicant has a made a profit in regard to his activities is a disentitling factor.  The fact that the Applicants benefited from their activities does not mean that their activities could not also benefit the public interest of Australia. (Re Kow v Minister for Immigration and Ethnic Affairs 30 ALD 916). This view was adopted recently by the Tribunal in Hai Wang Ge and Minister for Immigration and Multicultural and Indigenous Affairs [2003] AATA 514. However there was no evidence that the Applicants had generated income, job opportunities and production facilities in Australia as had been contended.  Indeed the evidence was of employees and of factories in Hong Kong..  Curiously, the profit and loss statement showed no expenses for purchase of the raw materials, nor the cost of staff to undertake the polishing etc.  As to income, the company made minor profits of less than $30,000 in each of 2000/1 and 2001/2, but the Applicants had paid themselves $100,000 and over $200,000 in ’commission’..  I consider that in the context of overall economic activity in Australia the contribution of the Applicants would be so inconsequential that it could not be labelled as beneficial.

72.     For completeness, there was no evidence pointing to activities, which are “widely recognised” by the Australian community or by “prominent persons associated with the applicant’s field of endeavour”. Additionally there were no activities undertaken by the Applicants in Hong Kong, which were of a “social cultural economic or political nature”. 

73.     Therefore, in applying the Instructions and the decision in Roberts (supra) to these matters, I accept that there is no evidence that the Applicants’ activities have brought objective benefit to Australia or have enhanced Australia’s international respect or goodwill, rather than the private interests of the Applicants or their company.

74.     I am unable to find that the Applicants were engaged in activities beneficial to the interests of Australia.

Inconsistency argument

75. Neither party was able to provide the written reasons for the granting of the Subclass 155 visas to the Applicants. I do not therefore know on what basis the delegate came to his or her view. The Applicants may have satisfied the delegate that they met the requirements of subclause 155.212 of the Regulations in that they had “substantial business, ties with Australia which are of benefit to Australia”, viz., the business activities conducted by the Applicants through Domsonss. Although it is unlikely, they may have satisfied the delegate of cultural, employment or personal ties.

76. Irrespective of whether the Applicants should have satisfied the delegate or not in relation to their business ties, subclause 155.212 of the Regulations and section 13(4) of the Act are, in fact, different.

77.     As has been noted, in Ho (supra) the discretion in section 13(4) does not offer an alternative method of complying with section 13(1)(d) and (e). It is to be applied only in exceptional circumstances. This is in marked contrast to the terms of subclause 155.212(3), which is clearly expressed as an alternative test. It states:

“(3)     The applicant meets the requirements of this subclause if the applicant is outside Australia, and the Minister is satisfied that the applicant has substantial business, cultural, employment or personal ties with Australia which are of benefit to Australia,…”

78.     I note the Tribunal in Seang Yoon Lee and Department of Immigration and Multicultural Affairs [1998] AATA 13366, said:

“It has to be said again that subsection 13(4)(b) is an ameliorative provision. It is not, and was never intended to be, the standard path to the achievement of Australian citizenship. It was intended to deal only with anomalies where the public interest would otherwise be denied if an applicant were refused a grant of citizenship. The subsection is not intended as a readily available shortcut to citizenship.”

79. I am not bound by the decision of the delegate in coming to his or her view about the Applicants for the purposes of subclause 155.212 of the Regulations and for the reasons given above, do not consider that during the relevant period the Applicants were engaged in activities that were beneficial to the interests of Australia under section 13(4)(b)(i)(c) of the Act. The period outside Australia should not be treated as a period during which they were present in Australia as permanent residents. Consequently, I find that the discretion under section 13(4)(b)(i) of the Act should not be exercised in favour of the Applicants.

80.     In coming to this view, I was mindful that the Applicants saw Australian citizenship as giving them an advantage in the eyes of their customers, in marketing Australian products, that they were themselves Australian citizens.  It appears they want Australian citizenship in order to promote personal, rather than Australia’s, interests.

DECISION

81.     The Administrative Appeals Tribunal affirms the decision under review.

I certify that the 81 preceding paragraphs are a true copy of the reasons for the decision herein of Ms N Isenberg, Member

Signed:         A. Krilis
  Associate

Date/s of Hearing  29 September 2003; 30 September 2003
Date of Decision  4 December 2003
Representative for the Applicant    Ms O Sit
Solicitor for the Respondent          Ms E Warner