Re Lan and Minister for Immigration and Multicultural Affairs - [2001] AATA 362

DECISION AND REASONS FOR DECISION [2001] AATA 362

ADMINISTRATIVE APPEALS TRIBUNAL )

) No N1999/1477

GENERAL ADMINISTRATIVE DIVISION       )
           Re      YEE FONG STEVE JOHN LAN
  Applicant
           And    MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
  Respondent

DECISION

Tribunal Mr M J Sassella, Senior Member

Date3 May 2001
PlaceSydney
DecisionThe Tribunal sets aside the decision under review and remits the matter to the Respondent with the following directions:

the Respondent is to assess the Applicant for a grant of a certificate of citizenship on the basis that he has satisfied s 13(1)(a), (b), (d), (e) and (j) of the Australian Citizenship Act 1948; and
the Respondent is to use its own judgment to assess the Applicant for the grant of a certificate of citizenship in respect of the other paragraphs in s 13 of the Australian Citizenship Act 1948.
[Sgd] M J Sassella
Senior Member
CATCHWORDS
Immigration – application for citizenship – permanent resident – British citizen - overseas activities beneficial to the interests of Australia – attracting investment to Australia - evidence of hardship or disadvantage - nature of overseas activities - personal connections with Australia - Australian Citizenship Instructions - amount of time spent overseas prior to application for citizenship - exercise of Ministerial discretion to waive residency pre-requisite
Australian Citizenship Act 1948, s 13
Minister for Immigration, Local Government and Ethnic Affairs (1993) 41 FCR 82
Re Kao and Minister for Immigration and Ethnic Affairs (1993) 30 ALD 916
Re Chai and Minister for Immigration and Ethnic Affairs (AAT 9933, 23 December 1994)
Re Abraham and Department of Immigration and Multicultural Affairs (AAT 12364, 3 November 1997)
Re Page and Department of Immigration and Ethnic Affairs (AAT 9991, 6 February 1995)
Re Ho and Minister for Immigration and Ethnic Affairs (1994) 34 ALD 664
Re Tsui and Minister for Immigration, Local Government and Ethnic Affairs, (1991) 24 ALD 236
Minister for Immigration, Local Government and Ethnic Affairs v Roberts (1993) 41 FCR 82
Re McCarthy and Minister for Immigration, Local Government and Ethnic Affairs (1993) 30 ALD 447

REASONS FOR DECISION

Mr M J Sassella, Senior Member

This is an application by Yee Fong Lan ("the Applicant") for review of a decision of the Minister for Immigration and Multicultural Affairs ("the Respondent") dated 30 August 1999 not to grant Australian citizenship to the Applicant.
At the hearing the Applicant was represented by Mr R Turner, solicitor, and the Respondent was represented by Ms P Chadderton, an advocate from the Respondent's litigation section.
The documents and supplementary documents lodged pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 were entered as evidence (TD1 and TD2) in addition to the following material:

Exhibit No Description Date
A1 A2 A3 A4 A5 A6 A7 R1 Applicant's Statement of Facts and Contentions Bundle of documents including a statement regarding the financial standing of Inswire Insurance Brokers Pty Ltd, a schedule of recent business introduced by Mr Lan to Inswire, referee's reports and an organisation chart of Western United Group, under cover of letter from the Applicant's representative dated 6 March 2000 Outline of Evidence from Yee Fong Lan Outline of Evidence from Robert Edward White Outline of Evidence from Margaret Ong Letter from Richard Ma to Applicant's representative Corporate documents relating to the Four Seas Group and letter from Calbee to the Applicant Respondent's Statement of Facts and Contentions 28 January 2000 various undated undated undated 8 March 2000 1 January 2000 4 April 2000

LEGISLATION

Section 13 of the Australian Citizenship Act 1948 ("the Act") outlines the qualification criteria for the grant of Australian citizenship. As relevant it provides:
"Grant of Australian citizenship
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:
(a) the person is a permanent resident;
(b)   the person has attained the age of 18 years;
(c)   the person understands the nature of the application;
(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 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;
(f) the person is of good character;
(g)   the person possesses as basic knowledge of the English language;
(h) the person has an adequate knowledge of the responsibilities and privileges of Australian citizenship; and
(j)    if granted a certificate of Australian citizenship, the person is likely to reside, or to continue to reside, in Australia, or to maintain a close and continuing association with Australia.
…
(4) For the purposes of the 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;
…"

History of Application

On 5 August 1998 the Applicant lodged with the Respondent's Department, the Department of Immigration and Multicultural Affairs ("the Department") an application for grant of Australian citizenship (T10). This contained the following relevant information:

The Applicant arrived in Australia on 18 January 1986 on a permanent resident visa.
The Applicant's date of birth was 3 May 1941.
The Applicant is a British citizen.
The Applicant was to leave Australia on 8 August 1998.

The Department calculated Mr Lan's period of residence in Australia as at the date of his application (T11). The result was that he had spent 53 days of the immediate past two years in Australia (and 677 days outside Australia). He had spent 241 days of the previous five years in Australia (and 1,585 days outside Australia).
On 6 August 1998 the Department wrote to Mr Lan informing him of what he would need to do in order to obtain an exemption from the requirements of s 13(1)(d) and (e) of the Act which require a person who applies for a grant of a certificate of citizenship to have been present in Australia as a permanent resident for an aggregate period of one year of the previous two years, and for an aggregate period of two years of the previous five years. A discretionary exemption is available under s 13(4) of the Act so that the Respondent may treat a period during which the Applicant was a permanent resident who was not present in Australia as a period when he was present if, during that period, he "was engaged in activities that the Minister considers beneficial to the interests of Australia".
In its letter to Mr Lan the Department said, amongst other things:

"-Please state and provide evidence of all major assets and investments that you hold in Australia, and Hong Kong.
"-Please provide certified copies of your personal income tax returns for the financial years ending 1996, 1997 and group certificate for 1998.
"-Please provide evidence of any relatives or emotional ties that you may have in Australia, and Hong Kong.
"-For the time spent overseas to be treated as time spent in Australia, the applicant must demonstrate the overseas activities were beneficial to the interests of Australia. In your submission you refer to your activities overseas, being responsible for expanding the customer base in East Asia region. Please provide examples of how you have attracted investment to Australia, and how this has been of benefit to Australia."
-"Please provide evidence of any hardship or disadvantage (e.g. inability to travel internationally, or inability to represent Australia, or gain employment) as a result of not being granted citizenship."

On 7 August 1998 the Applicant provided a list of his Hong Kong stock assets (T13).
On 19 August 1998 the Applicant responded to the letter at T12. Amongst the material in this letter he made the following points:

He owns four properties in Sydney.
He has no property investments in Hong Kong. He has the stock assets listed in T13.
His wife, children and mother are all Australian citizens.
He attracts investment into Australia. He sells marine insurance in China.
He employs three Australians.

On 27 January 1999 the Department wrote to Mr Lan seeking additional information (T16). In part of the letter the writer says:
"You failed to clearly explain the nature of your overseas activities in your letter dated 19 August 1998. For the time spent overseas to be treated as time spent in Australia, you must demonstrate that your overseas activities were beneficial to the interests of Australia. Please state specifically, in accordance with 4.5.6 …, what business activities you were engaged in overseas, and demonstrate how they were of benefit to Australia. You should provide any documentary evidence (eg contracts) which support your claims.
"In your letter dated 19 August 1998, you stated that the Inswire Insurance Brokers account employs 3 Australians and provides a direct benefit to Australia. It is not clear from your statement what activities you were engaged in overseas which were related to the Inswire account, could you please provide further information in relation to this claim."

The reference to "4.5.6" should probably be to "4.5.16" because there is no 4.5.6 quoted in the letter. 4.5.16 is from the Department's Australian Citizenship Instructions. Instruction 4.5.16 reads:
"Some procedures relating to the exercise of this discretion:
"Applicants wishing to be considered against this discretion should submit a statement in writing, with appropriate supporting documentation, demonstrating how they meet the legal and policy requirements outlined above. Applicants should record this information for each period of residence outside of Australia under the following headings:
"departure date;
"return date;
"number of days away;
"brief summary of the purpose of the trip and why the activities abroad were beneficial to Australia; and
"number of days away for personal reasons.
"The statement should also include the total number of days they have resided outside of Australia and be signed and dated by the applicant."

On 28 June 1999 Ashmore Brown and Associates, migration agents, wrote to the Department on behalf of Mr Lan (T20). They made the following points:

Mr Lan has strong personal connections with Australia. His wife Ping Ling Chung Peggy Lan has been an Australian citizen since 23 June 1988. His two children, Apollo Lawrence Lan and Tracey Valerie Lan are also Australian citizens. Copies of their passports are in the Department's records.
Mr Lan's mother, Mrs Wen Cheng Young, is an Australian citizen.
Mr and Mrs Lan have a family residential property in Cammeray which is owned unencumbered. (It seems from paragraph 20 of these reasons that there may now be a mortgage over this property in favour of the State Bank of NSW.) They own three other residential properties in Northbridge, Sydney CBD and Chatswood. These three properties are mortgaged to the St George Bank. (It seems from paragraph 20 of these reasons that these mortgages have been transferred to the Hongkong Shanghai Bank ("HSBC").)
Mr Lan entered into an employment arrangement with Western United Insurance Brokers Pty Ltd ("Western United"), an Australian company located in North Sydney. The company created a special division, Inswire Insurance Brokers ("Inswire"), and appointed Mr Lan as the Vice-President Insurance Brokers.
Inswire was based in the North Sydney office of Western and was staffed with three Chinese speaking staff to attract and service Chinese clients requiring a range of insurance products, including domestic, commercial and shipping insurance. Mr Lan's position was to act in a business development role to attract Chinese clients, who were Australian non-residents living in Hong Kong and China, to Inswire through his extensive connections in those two countries.
Mr Lan had established a large business network in Hong Kong and China over a number of years and as a result Western United appointed him to a full-time position in Hong Kong as an expatriate of the Australian-based company so that he could be close to the market where he would be sourcing new business for them. Since commencing in 1997 Mr Lan has introduced insurance premium income to Inswire in Sydney to a total value in excess of $A2m.
A copy of a letter from Western United appointing Mr Lan to the position of Vice-President – International Business in 1997 with a copy of an employment agreement dated 1 July 1997 was supplied.
Mr Lan is required to live in "that country" [it is unclear whether this refers to Australia or China] as part of the employment agreement.

The letter summarised the benefits Mr Lan's efforts have brought to Australia:
Increased income and profit to the Australian company.
Indirect contribution to the employment of Australians in the Sydney office.
Establishment of a network of business contacts in Hong Kong and China which could not have been established by the Australian parent company without the appointment of Mr Lan to an expatriate position in Hong Kong.
The contribution by Mr Lan's business activities in Hong Kong and China to commercial activity in Australia and the competitiveness of Western United in the local market.
On 30 August 1999 a delegate of the Respondent wrote to the Applicant to inform him that she had decided against exercising discretionary powers under s 13 of the Act and rejecting the Applicant's application for citizenship (T1). With the letter was a "decision record". This made the following points:

Mr Lan would become eligible for a grant of Australian citizenship on 29 April 2000 if he had no further absences from Australia.
The exact nature of the Applicant's role in his company, and the extent to which his work is beneficial to the interests of Australia, is not clearly established. Western United has stated that Mr Lan is Vice-President of its division, Inswire Insurance Brokers. Mr Lan describes Inswire as a financially independent sub-account of Western United. Mr Lan has said that he owns 20% of Inswire. "The relationship between the two companies or the company and its subdivision is not at all clear, nor is it adequately explained in the application and supporting documentation." It appears that Mr Lan was already working in the insurance industry in Hong Kong prior to his appointment to this position. It is not at all clear what is the sum total of his activities overseas. "His work with Inswire may well have simply been tacked on to his existing activities in Hong Kong and China because he was already there and operating in the insurance industry."
There is no suggestion that Mr Lan was working and living primarily in Australia and was subsequently outposted to Hong Kong on behalf of the Australian company. A portfolio statement enclosed from the Hongkong Bank is addressed to Mr Lan, "c/o Swiss Insurance Mgt (HK) Ltd". No explanation is given as to this company's relationship with Inswire or Western United.
There is nothing to substantiate the claims that Mr Lan's Hong Kong work is of commercial benefit to Australia. There is no evidence of a flow of money, investments or income into Australia. There are no financial statements for either company. There is no indication that tax is paid on income generated.
The Applicant's income tax returns have not been provided.
The Applicant has not provided evidence of his major assets and investments held in Australia and Hong Kong.
There is nothing to support Mr Lan's claims that his activities overseas are a direct benefit to the interests of Australia or create employment opportunities in Australia.
There is no evidence that Mr Lan's presence in Hong Kong has established a network of business contacts for the use of the parent company in the years to come, as has been claimed. Any such contacts might be lost if Mr Lan's contract expires.
It is not clear that Mr Lan's work for the Australian company is a full-time activity requiring him to be virtually full-time in Hong Kong.
It is not clear that Mr Lan's work has generated $A2m of premium income into Australia.
It appears that Mr Lan's wife and children no longer live in Australia. In the last three years Mr Lan's daughter spent 10 days in Australia. His son spent less than a week in Australia and that was more than two years ago. Mrs Lan travels in and out of Australia, but spends only a few days here on each visit. They are not a part of the Australian community at this point in time.
Between 5 August 1998 (when Mr Lan applied for citizenship) and 30 August 1999 (the date of the decision) Mr Lan spent about 28 days in Australia. It is not clear that the property in Sydney is used, or intended for use, as Mr Lan's residence in Australia.
Mr Lan's primary country of residence is Hong Kong where he lives and works, albeit with brief visits to Australia to conduct business.
On 27 September 1999 Mr Lan lodged with the Tribunal an application for review of the decision of 30 August 1999 (T1).
The Respondent received after that date certain materials provided to the Tribunal as S documents (Exhibit TD2). These included a copy of extracts from Mr Lan's passport, a portfolio statement for the Applicant from the Hongkong Bank, NSW Land Titles Office search records and search records from the Hong Kong Companies Registry.

Applicant's evidence

The Applicant provided an undated statement (Exhibit A3) in which he made the following points:

He migrated to Australia in 1986.
His wife and children are Australian citizens.
He owns the following properties in Australia:

a)20 Cammeray Road, Castle Cove
b)35 Harden Avenue, Northbridge
c)62/267 Castlereagh Street, Sydney
d)40/22 Devonshire Street, Chatswood

He holds 20% of Inswire. He has always been in the insurance business.
He constantly markets the services of Inswire in Hong Kong and China through established business contacts.
He advises intending migrants to Australia and others on investment opportunities in Australia and recommends that all their insurance needs on their Australian investments should be met by Inswire.
The business he generates supports the employment of three members of Inswire's staff.
Mr Lan's income from Inswire is paid to his family company in Australia, Yanhill Pty Ltd, where it is dealt with in accordance with Australia's taxation laws.

The Applicant gave evidence at the hearing. He explained that he has two addresses. One is his house in Castle Cove, Sydney, where his mother is in residence. The other is a property in Hong Kong rented by the company. His wife and children are Australian citizens living in Hong Kong. His son graduated in medicine at the University of NSW and is training to be a surgeon at Queen Mary Hospital in Hong Kong. His daughter is a graduate who has been working in various financial institutions. Mr Lan owns no Hong Kong real estate.
Mr Lan's activities in Hong Kong revolve around the Zurich Group. He has just been appointed as chairman of the Zurich Financial Service Group for four years. Prior to becoming chairman of the group Mr Lan was CEO of Zurich Insurance, one of the Zurich group, in Hong Kong for over 10 years. From July 2001 Mr Lan will concentrate on building up others who can succeed him. He intends to reside in Australia from July 2001.

Mr Lan's wife and, he expects, his children will return to live in Australia when he does.
Mr Lan assisted the Tribunal with the NSW land titles documents in Exhibit TD2 at folios 6 to 9. The first folio referred to a house property at Chatswood worth an estimated $400,000. There is a mortgage in favour of the HSBC. Folio 7 referred to a property in Castlereagh Street, Sydney worth about a half a million dollars. This is also mortgaged to the HSBC. Folio 8 refers to a house property at Northbridge worth about $900,000, mortgaged to the HSBC. Folio 9 refers to the house property at Castle Cove worth over $1.1m. There is a mortgage to the State Bank of NSW. All of these titles show Mr and Mrs Lan as joint tenant registered proprietors.
Mr Lan then assisted the Tribunal with the company search documents in Exhibit TD2 at folios 11 to 23. These indicate Mr Lan's Hong Kong directorships. He agreed that the records were correct. All of the companies identified, except one, are in the Zurich Group. The other company is Four Seas Food Holdings Limited at folio 15. That is a frozen foods company. Mr Lan is a non-executive director.
Mr Lan was shown Exhibit A6, a letter from Richard Ma & Co, CPA to Mr Lan's solicitor. It was dated 8 March 2000. It concerned a company, Yamhill Pty Ltd. This letter states that the Applicant established Yamhill in 1984. He has used his insurance expertise to generate commission income for Yamhill. In 1998 and 1999 the commission income was $31,117 and $39,550, respectively. Income of $50,000 was projected for the year 2000. The company paid Mrs Lan director's fees of $27,300 and $17,000 in 1998 and 1999, respectively.
Mr Lan explained Inswire. He set up the company 1987 as a branch from Hong Kong. It is owned by and a subsidiary of Western United, an Australian company. Mr Lan owns 20% of Inswire. The company was formerly known as SWIR. It operated as an insurance agent and intermediary. In 1997 the SWIR Group sold all its insurance broking to the Zurich Group. The remainder of SWIR sold to Western United. The name was changed to Inswire and the business began to focus on broking rather than agency work. Inswire obtains work from overseas. The Applicant introduces overseas clients who are served in Australia by Mr White and Margaret Ong. The foreign clients are found through Mr Lan's personal connections, especially those he has with Asian banks and Chinese entities.
Mr Lan described his connection with Australia as very strong. In retirement he intends to live in his Australian house and invest on the Australian stock market. He described his activities in Australia since 1986 as investing in the property market, diversifying his investments, establishing Inswire, employing three Australians and working to further Australia in Hong Kong. He has Hong Kong connections because he was brought up there.
In cross-examination Ms Chadderton elicited certain new material. Inswire is not a corporation. It is a trading name used by Western United. T7 is a letter dated 1 July 1997 from Western United to Mr Lan congratulating him on becoming Vice-President of the Inswire Division of Western United. A two-year period of employment is identified. Attached is an employment agreement. It expired in June 1999 and has continued to be observed although it has not been replaced or renewed.
The Applicant deals with about 2,000 clients for Inswire. It seems that these are almost entirely foreign interests with Australian holdings. Exhibit A2 indicates a sample of annual premiums gathered by Inswire amounting to just over $391.000. Mr Lan pointed out that this was only a sample. It does not include marine insurance. The companies insured who own properties identified in Exhibit A2 are in Australia, Hong Kong, Taiwan and Singapore. The Applicant brings in about 80% of Inswire's work. Over 50% of Inswire's work derives from China, Hong Kong, Taiwan and Singapore. In Exhibit A2 Steve Kerbel, group financial controller, Western United, certified on 11 February 2000 that the annual premiums handled by Inswire are in the range of $1½m to $2m a year producing income of about $300,000 a year.
The Applicant works for others in addition to Inswire. Exhibit TD1, S4, shows that he is managing director of Paofoong Insurance Company (Hong Kong). He is on the board with about seven others. This requires minimal time each week. He attends a meeting of less than hour each week. He approves or rejects large financial items, appointments, managers, etc.
In S4 at folios 13-14 his role is a range of other companies is suggested.

Inter Partner Assistance Hong Kong Limited – He is a director. It takes minimal time. He introduces clients and provides advice.
Modern Overseas Limited and Mutual General Agency Limited ("Mutual") – He is one of five directors. The work involved is a couple of hours a week. He is a 45% shareholder of Mutual on behalf of Zurich.
Swiss Insurance Agency (Hong Kong) Limited and Swiss Insurance Management (Hong Kong) – He does a great deal of work for these companies. These are Zurich's management companies. He is one of between five and seven directors.
Wing Hang Zurich Insurance Company Limited – This is a joint venture between Zurich and the Wing Hang Bank. He works two hours a month. He is on the supervisory board and the investment board.
Zurich Consultants (Hong Kong) Limited – He is a director. He meets with the general manager once a fortnight for two hours. It is a broking company with international clients. Most are in Hong Kong. 20% are overseas. The company has a close link with Inswire for Australian business. It gives broking work to Inswire.
Zurich Insurance Company (Asia) Limited – Mr Lan is a director. This company took over SWIR. Mr Lan was the first CEO from 1989 to 22 May 2000. He was chairman of the group. The company promotes goodwill and fosters connections. It would seek very large clients. This company requires now only five or six hours of the Applicant's time in a week.
Zurich Insurance Holdings (Hong Kong) Limited – This is only a holding company. Mr Lan is a director. He devotes a little time to the company each week.
Zurich Marketing (PL) Limited – This is an insurance company that promotes personal lines business. Mr Lan is a director. He spends two to three hours a week on this company advising it.
Zurich Eagle Star Trustees Limited – This was a trustee company, a compulsory superannuation company. The company has been would up.

At folio 15 is Four Seasons Frozen Food Holdings Limited – Mr Lan attends several short meetings each year.
The Inswire work requires about five hours in total each week. Mr Lan's work is mainly referring foreign businesses to Inswire for Australian insurance. The work he does for Inswire involves communicating with Inswire employees in Australia and meeting and entertaining clients.
Mr Lan deals as a broker in China and London, in addition to Australia and Hong Kong. He has shares in Hong Kong. His wife also has shares in Hong Kong but no other property. Mr and Mrs Lan have no property other than that in Australia and Hong Kong. Mrs Lan helps Mr Lan sometimes with her connections, some of these being in Australia.
Mr Lan's daughter finished university in 1996 and went to Hong Kong when she could not find a job in Australia. Mr Lan's son worked in Wollongong after graduation but could find no Australian post for his surgeon training. He found a place in Hong Kong. He is in the fourth year of a six-year course. He has a Medicare provider number.
Mr Lan has siblings who live in Italy and Hong Kong. Mr Lan likes Hong Kong and earns more there than if in Australia. He pays 15% tax in Hong Kong. He pays no Australian tax.
Mr Lan summarised how his work was of benefit to Australia. He referred to Ms Ong who began as a secretary and has become a full-time insurance executive with Inswire. He has trained a number of people. His Hong Kong clients have often migrated to Australia and obtain advice from the Applicant on insuring and investing.
Evidence from Mr Robert White
Mr White was called by the Applicant to give oral evidence. He is an insurance broker and executive director (operations) for Western United. He provided a statement (Exhibit A4). In that statement he said:

Mr Lan set up Inswire approximately 13 years ago.
Mr Lan currently holds 20% of the shares of Inswire.
The Applicant markets the services of Inswire in Hong Kong and elsewhere in Asia.
Clients introduced by Mr Lan have Inswire insure their properties and other investments in Australia.
"The business introduced to Inswire by Steve Lan is worth approximately $300,000 per year to Inswire and directly employs 3 people."
The business generated by Mr Lan stems from his contacts and network in Hong Kong and Asia who either intend to migrate to, or establish investments in, Australia.

Mr White explained that Mr Lan's "20% of shares in Inswire" means that he has a 20% interest in that division of Western United. He receives 20% of the commissions earned by Inswire. Inswire generates about 4% of Western United's income. Western United would not be interested in Inswire without Mr Lan. Since 1991 Mr Lan has introduced most of the new contacts to Inswire. Mr Lan introduces clients and the three staff, all Australian citizens, Ms Ong, Mr Chang and Mr Choy, handle day to day requirements and deal with referrals from existing clients. Mr Lan ensures that the clients are kept happy with the insurance program devised for them. There would be no Inswire, in Mr White's opinion, without Mr Lan's introductions.
Mr White confirmed that Mr Lan's employment contract had not been renewed after two years. The arrangement was working satisfactorily for both parties and there is a mutual agreement to continue on. Mr Lan's services were retained when Western United took over Inswire because it is common to retain the previous proprietor for a period after a takeover. Mr Lan is free to take on other work such as that for Zurich group.
Mr White considered that Mr Lan's plans to spend more time in Australia from 2001 would be of benefit to Western United.
Evidence from Ms Margaret Ong
Ms Ong is account executive for Inswire. She completed a statement that is Exhibit A5. In that she said that her position requires her to look after the insurance needs of individual clients. 90% of the clients she assists are from Asia and were introduced by Mr Lan. Mr Lan does all the marketing and public relations in Asia.
In oral evidence the only additional facts to emerge were that the 90% of Ms Ong's clientele that are Asian equates to about 2,000 clients. She also said that her Inswire job is a full-time occupation.
Other documentary evidence
In the main the documentary evidence, not otherwise discussed above, consists of testimonials in support of Mr Lan as a candidate for citizenship. This includes a letter signed by Mr White (T9, 4 August 1998), a statement by Mr D T T Chan (Exhibit A2) as to the value of advice given him by Mr Lan and the intensity of Mr Lan's business activities outside Australia, a statement by the head of treasury of the Sydney branch of the Overseas Union Bank (Exhibit A2) to the effect that he is happy to refer clients to Mr Lan for advice and insurance and a statement by Ms L Mon (Exhibit A2) verifying the reliability of Mr Lan's advice. Ms J Low (Exhibit A2) comments on how keen Mr Lan is to recommend Australia to business associates and friends. Mrs M Chack (Exhibit A2 has found Mr Lan helpful in investment decisions over a 20-year period. Mr and Mrs L & S Choy write that Mr Lan was instrumental in their decision to migrate to Australia (Exhibit A2). Mr E Leung (Exhibit A2) writes of Mr Lan's assistance to him in establishing a property portfolio and speaks of how much Mr Lan has done to encourage people to invest in Australia. Mr K M Clement and Ms C Tong write (Exhibit A2) about the help they received from Mr Lan in migrating to Australia and investing here. Finally, Mr F Wong writes (Exhibit A2) of the valuable assistance he received in insurance matters from Mr Lan.
Exhibit A7 is a letter dated 1 January 2000 appointing Mr Lan as an adviser to Calbee Four Seas Co Ltd, a Hong Kong company involved in the manufacture of potato chips. The letter says, "We wish you to assist us to source good quality raw potato in Australia and ship to Hong Kong." This could involve up to 5,500 tonnes of raw potato a year.
Exhibit A2 is a collection of documents provided by the Applicant's solicitor on 6 March 2000. In addition to the testimonial material already described, there is a letter by the Applicant's solicitor which makes several arguments. These are:

The three Australians employed by Inswire as a result of the volume of business Mr Lan generates are Ms Margaret Ong, Mr Hon Wah Joseph Choi and Ms Mary Li. (Several different names were, of course, mentioned by Mr White in the hearing.)
All commissions and other income derived from Mr Lan's introductions are paid to his family company, Yanhill Pty Ltd. Mr Lan's wife is a shareholder of Yanhill. Tax is paid by Yanhill and/or Mrs Lan. Mr Lan does not pay Australian tax himself as he is not an Australian resident for tax purposes.
The writer says, "In my submission, the payment of tax in Australia is not determinative of benefit to Australia. In this case the benefit to Australia is clearly the introduction of overseas business to Inswire and the employment of three people. I note that 'benefit to Australia' is defined in the Migration Regulations. Schedule 2, sub-class 457 as:

(i)'the creation or maintenance of employment for Australian citizens or Australian permanent residents; or

expansion of Australian trade of goods and services; or
the improvement of Australian business links with international markets; or
competitiveness within sectors of the Australian economy.'

"Mr Lan's introductions do all of these things and are clearly of benefit to Australia.
…As Mr Lan has clearly brought, and continues to bring, benefit to Australia in a number of recognised areas he is entitled to the benefit and the grant of Australian citizenship."

Applicant's argument

Mr Turner summarised the Applicant's arguments. He referred to the Australian Citizenship Instructions (extracted at T3). He focused on Instructions 4.5.14 and 4.5.15 which state:
"4.5.14If 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 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 shown 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 normally not be exercised.
4.5.15In 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 or children, residence of spouse, citizenship held by immediate family, business ties, family and friends ties, and general identification).
·'The weight of the applicants' physical and emotional inclinations to Australia should exceed the weight of the applicants' 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 the critical point."

Mr Turner queried whether this material had been put before a Minister since 1985. He queried whether it was necessary for all items to be satisfied. He queried especially paragraph 4.5.15(b). It is inconsistent with s 13(1)(j) of the Act which looks only at future plans to reside in Australia, not at a "prior primary identification with Australia". If paragraph 4.5.15(b) is ultra vires then Instruction 4.5.15 can be of no effect as it amplifies paragraph 4.5.15(b).
Mr Turner referred the Tribunal to some of the evidence discussed already which indicates tangible benefit to Australia. There are examples of clients Mr Lan has introduced to Inswire in Exhibit A2. All but one of these are Australian businesses run by foreign interests. Mr Lan established contacts with the principals overseas and they proceeded to establish Australian companies. This admits foreign investment into Australia via a route that bypasses the Foreign Investment Review Board. Mr Turner reminded the Tribunal of the written testimonials. Mr Turner referred to Mr Lan's significant Australian property-holdings. He intends to spend more time in Australia, and virtually all of his time here, as of July or August 2001. He referred to the evidence of Mr White and Ms Ong as to the centrality of Mr Lan's work in introducing business to Inswire and, through Inswire, Western United.
Mr Turner referred the Tribunal to the case of Minister for Immigration, Local Government and Ethnic Affairs v Roberts (1993) 41 FCR 82 (Einfeld J) as authority for the proposition that the benefit can be to both Australia and the Applicant, it does not have to be just in favour of Australia and there is no bar if some benefit accrues to the individual's private interests. Mr Turner referred to Einfeld J's remark at page 87 of this case where he says, "Even if the particular person paid Australian tax on the wages earned [overseas], Australia might derive some benefit." Mr Turner argued that, although Mr Lan does not pay tax in Australia, equivalent or greater benefits flow from his activities, notably the employment of three people who pay Australian tax and live and consume here. Mr Turner then suggested that questions going to the proportion of time spent by Mr Lan in Hong Kong drumming up business for Australian concerns, as compared to engaging in other activities, were misconceived. He said that:
"one does not need to have spent 8 hours a day or 40 hours in a week for that week or that day to have been part of the process of providing benefit to Australia.
"It may well be, that it takes an amount of time to generate one client. It may well be then take a much lesser amount of time to generate ten clients. If Mr Lan was not in Hong Kong, the evidence is clear that much of that work would not be generated. It can't be said that if a quantifiable benefit can be shown from your time overseas, that you can then do an arithmetic test and say that: well, you only spent 5 hours per week directly working on generating that therefore the only time which we will count as of benefit to Australia is 5 hours in that week. That presupposes that Mr Lan can transpose himself at will from one country to another.
"The fact is, if he were not in Hong Kong for the amount of time that he is in Hong Kong, the work would not be generated. Now, there is another issue that comes about. The work that … Mr Lan does, is through his contacts and network in Hong Kong and other places, directs people to initially invest in Australia – although he may not take part in that decision, but certainly having identified people who either have or wish to invest in Australia from those places, directs them to Inswire /Western United. It is not compulsory in any sense for him to do so.
"There is nothing that says I must insure my property in Sydney in Australia. I could well insure that property with a company overseas or any financial centre. Mr Lan directs his endeavours to ensuring that as far as possible, all of his investments in Australia to which he becomes aware, are insured in Australia by Western United Insurance Brokers Pty Limited through their division Inswire Insurance Brokers. " (Transcript, 90)

Mr Turner referred to the decision in Re Kao and Minister for Immigration and Ethnic Affairs (1993) 30 ALD 916 in which Senior Member Hotop said that the fact that the applicant's private interests benefited from his activities did not mean that those activities could not also benefit the public interest of Australia. He said that the activities were essential to the maintenance of Australian business and that that business employed people in Australia and contributed to the Australian economy. He held that the applicant's activities in promoting and arranging the export of Australian timber were beneficial to the interests of Australia. Although the value of such exports to date was relatively small it was not so small and insignificant that it should be discounted. Further, activities involving the promotion of Australian exports may themselves be presently beneficial to the interests of Australia, quite apart from the value of Australian exports that are actually generated by such promotion.
The case Re Chai and Minister for Immigration and Ethnic Affairs (AAT 9933, 23 December 1994) was cited for the proposition that the Tribunal can consider what an applicant has done to further the interests of Australia since his or her application for citizenship in addition to considering what was done prior to the application. Mr Turner submitted that Mr Lan's actions since his application are "instructive in terms of the genuineness of the activity which he carried out, that is an on-going course of activity and there is no reason to suggest that it will not continue" (Transcript, 91).
The case of Re Abraham and Department of Immigration and Multicultural Affairs (AAT 12364, 3 November 1997) was cited for the remarks in paragraph 29 where the Tribunal (Deputy President McMahon) said:
"I am satisfied that he is now embarking upon a close and continuing employment association with the Australian branch of a foreign company. His activities will be directed towards improving the business of this Australian branch. His senior position within the branch indicates that his continuing association will be a close one. … he complies with both aspects of paragraph (j)."

Mr Turner said this was on all fours with what Mr Lan is doing. He is improving the business activities of an Australian company.
Mr Turner referred to Re Page and Department of Immigration and Ethnic Affairs (AAT 9991, 6 February 1995) where Deputy President Breen said at paragraph 13:
"The applicant in this matter works for the subsidiary of an Australian company. The General Manager of Fujitsu (PNG) wrote in his letter, as previously stated, that the applicant's activities were 'vitally important' to the company and the operation of that company in Papua New Guinea. It can be inferred, therefore, that the applicant's activities in Papua New Guinea are of importance to the promotion overseas of Australian technology and are therefore important to Australia. The Tribunal is of the opinion that the applicant's role remains indisputably an activity that is 'beneficial to the interests of Australia'. It is reasonable to infer that his employer company also makes an important contribution to the economy of Papua New Guinea, and is therefore valued by that country's Government. An harmonious relationship between that Government and the Australian Government must be augmented by the situation."

Mr Turner said that the situation here is analogous to that in Page (supra). That case was about the sale of Australian products overseas. This case is about the sale of Australian services overseas.
The Applicant satisfies s 13(1)(j) because he does intend to reside in Australia after being granted a certificate of citizenship.
Respondent's argument
Ms Chadderton referred to the Tribunal decision in Re Ho and Minister for Immigration and Ethnic Affairs (1994) 34 ALD 664 at pages 670-671 where Deputy President McMahon said:
"It is unlikely that in the application of the Minister's discretion, a period may be treated as a period of presence in Australia only when the applicant is engaged for 24 hours per day, seven days per week in activities beneficial to the interests of Australia. It is more likely that the activities referred to should be substantial activities of the applicant for limited periods, being intervals intended to fill in the gap between actual presence in Australia and the requirements for presence set out in the statute. 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 Chadderton submitted that Mr Lan's activities do not involve exceptional circumstances. His activities for Inswire and Western United are not exceptional. They constitute a tiny percentage of the work time of Mr Lan in Hong Kong. Mr Lan said his Inswire work required about five hours a week in Hong Kong. (Mr Turner in response argued that the circumstances surrounding Mr Lan are exceptional. "In the authorities there is not a case of such direct benefit to Australia as is shown here" (Transcript, 102). He also commented that in fact the requirements of s 13(4) and s 13(1)(d) and (e) are somewhat interchangeable, merely on the basis of statutory interpretation. Mr Turner criticised Ms Chadderton's arguments based on the time spent in Hong Kong on Inswire work. He said that misconceives the nature of the insurance business and any people-related business. Mr Lan has contacts with interests all over the world who consult him. He does not pigeon hole them as Australian contacts but he uses his influence to encourage them to invest in Australia.)
As regards the nature of the work done by Mr Lan in Hong Kong, he is a director of 13 companies in Hong Kong but of none in Australia [the Tribunal notes that he is a director of his family company, Yamhill Pty Ltd]. (Mr Turner responded by explaining that it is common for a CEO of a group like Zurich to hold directorships in other companies in the group. In this regard 13 directorships is a modest number. He submitted that it is wrong to look at the issue arithmetically. In Mr Lan's situation he generates great benefit for Australia from what might seem relatively little investment of time.)
In addition Ms Chadderton said:

Mr Lan's Hong Kong work for Inswire is basically for his personal benefit.
Mr Lan's Australian property holdings benefit him rather than the wider interests of Australia
The commissions and premiums generated by Inswire are largely paid by companies that are Australian registered. (Mr Turner pointed out that these companies are in the main Australian registered because of Mr Lan's work encouraging the company principals to set up in Australia.)
Inswire will be of no continuing interest to Western United once Mr Lan severs connections with it. (Mr Turner commented in response that Mr Lan did not intend to retire from his Australian interests. His intention is to retire from his Hong Kong work.)
Mr Lan's family have spent very little time in Australia in recent years.
Mr Lan's primary residence is Hong Kong where he lives and works, taking the occasional trip to Australia to conduct business.
Mr Lan applied for citizenship only about a year after commencing his employment contract with Western United.

Comment by Applicant

At the conclusion of the hearing Mr Lan asked to make some points himself. He said that the five hours a week he estimated he spends in Hong Kong on Inswire work needs to be seen commercially. The Zurich Group allows him as chairman not to watch office hours. It is interested in his contribution as a whole. He makes contacts doing work for Zurich that are useful in his work for Inswire, and vice versa. He said that his Australian properties are worth over $A3m and he owes less than $A1m on mortgages. He has made a considerable cash investment in Australia.
Findings on material questions of fact with reference to the evidence or other material on which the findings are based
Section 13 (1) of the Act gives the Minister a discretion to grant a certificate of Australian citizenship to a person who fulfils a number of requirements. These are:
The person must have made an application in accordance with the approved form (s 13(1)).

The person must be a permanent resident (s 13(1)(a)).

The person must have attained the age of 18 years (s 13(1)(b)).

The person must understand the nature of the application (s 13(1)(c)).

The person must have 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 two years immediately preceding the date of application (s 13(1)(d)).

The person must have been present in Australia as a permanent resident for a period of, or for periods amounting in the aggregate to, not less than two years during the period of five years immediately preceding the date of application (s 13(1)(e)).

The person must be of good character (s 13(1)(f)).

The person must possess a basic knowledge of the English language (s 13(1)(g)).

The person must have an adequate knowledge of the responsibilities and privileges of Australian citizenship (s 13(1)(h)).

10) The person must be likely to reside, or to continue to reside, in Australia, or maintain a close and continuing association with Australia, if granted a certificate of Australian citizenship (s 13(1)(j)).

The Tribunal finds that the Applicant made an application in accordance with the approved form (s 13(1)) in T10 on 5 August 1998.
The Tribunal finds that the Applicant is and was, on the date of his application for the grant of a certificate of citizenship, a permanent resident. This is noted by the primary decision-maker in the reasons for decision in T1.
The Tribunal finds that the Applicant has attained the age of 18 years. He was born on 3 May 1941 (T10).
The Tribunal makes no finding as to whether the Applicant understands the nature of the application. The Tribunal considers that Mr Lan most probably does satisfy this requirement but, as far as the Tribunal is aware, the primary decision-maker has not yet addressed this matter. As the Tribunal is a review body it would be inappropriate for it to make a decision on a matter not the subject of evidence before it.
The Tribunal finds that the Applicant does not satisfy the requirement that he must have 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 two years immediately preceding the date of application. The evidence is that the Applicant had spent only 53 days in Australia in the two years before the date of his application (T1, decision record; Exhibit TD2, S5).
The Tribunal finds that the Applicant does not satisfy the requirement that he must have been present in Australia as a permanent resident for a period of, or for periods amounting in the aggregate to, not less than two years during the period of five years immediately preceding the date of application. The evidence is that the Applicant spent only 241 days in Australia in the five years before the date of his application (T1, decision record; Exhibit TD2, S5).
The Tribunal makes no finding as to whether the Applicant is a person of good character. As far as the Tribunal is aware, the primary decision-maker has not yet addressed this matter. As the Tribunal is a review body it would be inappropriate for it to make a decision on a matter not the subject of evidence before it.
The Tribunal makes no finding as to whether the Applicant possesses a basic knowledge of the English language. As far as the Tribunal is aware, the primary decision-maker has not yet addressed this matter. As the Tribunal is a review body it would be inappropriate for it to make a decision on a matter not the subject of evidence before it.
The Tribunal makes no finding as to whether the Applicant has an adequate knowledge of the responsibilities and privileges of Australian citizenship. As far as the Tribunal is aware, the primary decision-maker has not yet addressed this matter. As the Tribunal is a review body it would be inappropriate for it to make a decision on a matter not the subject of evidence before it.
The Tribunal will consider below whether the Applicant would, in its view, be likely to reside, or to continue to reside, in Australia, or maintain a close and continuing association with Australia, if granted a certificate of Australian citizenship.
Section 13(4)(b)(i) of the Act may apply where, as here, an Applicant cannot satisfy the residential requirements in s 13(1)(d) and (e). Section 13(4)(b)(i) can assist by permitting the Minister to exercise a discretion to treat a period as if it was a period when the Applicant was present in Australia. The Minister, and the Tribunal standing in his position, can exercise this discretion where:
The Applicant was a permanent resident during the whole of the period (s 13(4)(b)(i)(A).

The Applicant was not present in Australia (s 13(4)(b)(i)(B).

The Applicant was engaged in activities that the Minister considers beneficial to the interests of Australia (s 13(4)(b)(i)(C).

The Tribunal finds that the Applicant was a permanent resident at all relevant times for the reasons given above. The Tribunal has already found that the Applicant was not present in Australia for some of the time from five years prior to when he made application for a grant of citizenship. From this, then the only issues are:
Was the Applicant when not in Australia, on some or all of those occasions between 6 August 1993 and 5 August 1998, engaged in activities that were beneficial to the interests of Australia?

Would the Applicant be likely to reside, or to continue to reside, in Australia, or maintain a close and continuing association with Australia, if granted a certificate of Australian citizenship?

Was the Applicant when not in Australia, on some or all of those occasions between 6 August 1993 and 5 August 1998, engaged in activities that were beneficial to the interests of Australia?

At base the Applicant submits that he performed the following activities beneficial to the interests of Australia when he was outside Australia:

He attracts investment to Australia.

He sells marine insurance in China on behalf of an Australian insurer. He also sells domestic, commercial and shipping insurance to Chinese speaking clients. Since commencing to work for Western United in 1997 Mr Lan has introduced premium income to Inswire valued at over $A2m with income from that figure amounting to about $300,000 a year. He has increased the income and profit of the Australian company, Western United. He deals with about 2,000 clients for Inswire. He brings in about 80%, Ms Ong says 90%, of Inswire's work. Over 50% of Inswire's work derives from China, Hong Kong, Taiwan and Singapore.

He supports the employment of three Australian citizens in Sydney as a result of his selling of insurance, largely overseas.

He develops Australian insurance business by attracting Chinese clients who are not Australian residents and who live in Hong Kong or China. He can do this because of his network of Chinese contacts in both Hong Kong and the People's Republic. His work with outside bodies such as the Zurich group helps to extend and deepen these Chinese contacts.

He has also helped develop the skills of Inswire's staff. When Ms Ong started to work for Inswire she was a secretary. She has developed into a full-time insurance executive.

Mr Lan advises intending migrants coming to Australia on investment opportunities in Australia and recommends that Inswire meet all their insurance needs. The testimonials in Exhibit A2 provide a sample of the people he has assisted in this way.

Against this the Respondent argues, or the Tribunal notes:

Mr Lan has not submitted a document of the type required in Instruction 4.5.16 of the Citizenship Instructions. In particular, he has not identified every trip away and explained, in relation to each absence, the purposes of the trip and how it stood to benefit the interests of Australia. He has not identified days away for personal reasons.

The Applicant does not pay personal income tax in Australia.

Mr Lan's work in Hong Kong for the Australian company, Western United, occupies only a small portion of his week, about five hours.

Mr Lan's work in Hong Kong for Inswire is basically for his own benefit.

The commissions and premiums generated by Mr Lan for Inswire come largely from Australian registered companies.

Western United will not be interested in Inswire once Mr Lan retires. Any arguable benefit to Australia attributable to Mr Lan will not be an enduring benefit.

Mr Lan's Australian property holdings are not beneficial to the interests of Australia. They are for his personal benefit.

Mr Lan's primary residence is Hong Kong.

Mr Lan's citizenship application came quite soon after he entered into an employment contract with Western United.

Looking first at Mr Lan's arguments to the effect that his efforts in Hong Kong have been beneficial to the interests of Australia, it is necessary to consider the authorities.
In the first of these, Re Tsui and Minister for Immigration, Local Government and Ethnic Affairs, (1991) 24 ALD 236 the applicant was a Hong Kong national who, at the time he applied for Australian citizenship, had spent only four days in Australia in the preceding two years. He had spent only 604 days in Australia in the preceding five years. The applicant and his family were granted permanent resident status in Australia in August 1984. The applicant's wife and family had been granted Australian citizenship in 1986 and had returned to Hong Kong some weeks later, remaining there ever since.
The applicant was outside Australia engaged on a major computer project and had told the respondent that he expected not to return to live here until two or three years had passed. He owned a house in Sydney but had no other links with Australia. He had no family members living in Australia. He argued that his employment in Hong Kong which was to result in new computer systems, some of which would be implemented in Australia, would contribute to the improved performance in Australia by the bank which employed him in Hong Kong.
The Tribunal found against the applicant. It regarded any benefit to the interests of Australia resulting from the applicant's overseas activities as remote and open to argument. They were contingent in three respects. First, the applicant's activities would have to benefit his employer. Second, only some of the applicant's activities as adopted by his employer would have any positive impact on his employer's Australian activities. Third, there was a question whether any improved Australian performance by the applicant's employer can be seen as beneficial to the interests of Australia.
In Minister for Immigration, Local Government and Ethnic Affairs v Roberts (1993) 41 FCR 82, Mr Roberts applied for Australian citizenship on 24 April 1991. He had been in Australia from 6 December 1964 until 30 July 1989. He then returned on 2 October 1990. Between December 1989 and July 1990 he worked in the United Kingdom. On 19 November 1990 he left Australia for employment by a United Kingdom company. He returned on 29 March 1991. The applicant could not show that he had spent in Australia at least half of the two years before applying for citizenship. The Tribunal in that matter had found that the Minister's discretion in section 13(4)(b)(i) should be available to the applicant. It decided to water down the accepted requirements in view of the fact that Mr Roberts had lived in Australia for more than 20 years. It held that in his work on oil rigs Mr Roberts had been engaged in activities beneficial to the interests of Australia. Einfeld J in the Federal Court decision quoted the Tribunal (at 86-87) as follows:
"…
At par 30 the Tribunal concluded:
'Coming then to the issue, does the Tribunal consider that Mr Roberts' activities in oil rig construction are relatively beneficial to the interests of Australia? Having regard to –
(i)the importance of oil rig construction in terms of national resource policy;
(ii)       the desirability of having Australian citizens engaged in it;
(iii)       the length of Mr Roberts' prior association with Australia;
(iv)      his strong family connections with this country;
(v)the likelihood of those associations continuing, particularly if he gained citizenship so that he is enabled to readily return to this country to maintain those associations;
the Tribunal considers that Mr Roberts' activities in oil rig construction overseas during the two year period prior to his application were beneficial to the interests of Australia.'
…"

Einfeld J did not endorse this analysis. He said (at 87):
"…
…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 respondent. The section requires some objective benefit to Australia.
The importance to Australia of the Australian oil industry cannot be doubted. Although there was no evidence in this case on the specific importance of the construction of oil rigs, it was reasonably open to the Tribunal to find that oil rig construction, as an intrinsic part of the Australian industry, is itself a benefit to Australia. But it is quite another matter as to whether the construction of rigs in the United Kingdom and Brunei represent any such benefit, still less whether Mr Roberts' work as a rigger at those places was advantageous to this country. To reach such conclusions, some evidence would have been required demonstrating the benefits propounded. For example, if the person concerned was studying or using new techniques or materials with a view to introducing them to Australian construction, or if he was taking Australian technology to these places, the benefits would be established. If it was established that experiences overseas increased the particular person's chances for remunerative work and advancement in the industry in Australia, a relevant advantage may well be evidenced. Even if the particular person paid Australian tax on the wages earned in such places, Australia might derive some benefit…I regret being unable to see the nexus between Mr Roberts' overseas work and our natural resource and employment policies…
Family ties and a close association with Australia are in a similar category. Although relevant to the application by virtue of s 13(1)(j), these matters are in my opinion not relevant to the consideration of whether activities overseas are 'beneficial' to Australia…
…"

In Re Kao (supra) the applicant argued that, when he was absent from Australia, his activities were beneficial to the interests of Australia in that his overseas activities involving business dealings in the timber and furniture industries were commercially essential to the successful operation of furniture companies that he had established in Australia. He also argued that he was involved overseas in promoting and arranging the export of Australia's timber to Japan. He employed 20 people in his Australian furniture companies. He paid personal tax in Australia and his businesses would be liable for Australian tax. The respondent argued that Mr Kao's company activities were for his own benefit and were not beneficial to the interests of Australia. He had sold only $18,000 worth of timber to Japan, an amount too low to justify exercise of the discretion.
As discussed above, the applicant succeeded in Kao (supra). As Mr Turner argued earlier, it is not fatal to an applicant that he or she benefits to an extent from activities overseas that also benefit the interests of Australia. The Tribunal was impressed by the fact that Mr Kao's business generated employment (which benefited the Australian economy) as a result of the overseas activities.
Kao (supra) is also instructive in its attitude to low value export action. Export activities of low value should not be discounted unless so small and insignificant as to be ignored. The point is made that action to promote Australian exports may be presently beneficial to the interests of Australia, quite apart from the value of the exports themselves.
It is not necessary to say a great deal about the Chai case (supra) which was aptly cited by Mr Turner. However, Deputy President McDonald states in paragraph 13:
"Whilst the respondent has urged the Tribunal to look at events occurring in the period prior to the date of application for Australian citizenship, and the Tribunal agrees with this approach, the Tribunal feels that it is justifiable to look at events occurring after that date to see whether there is a consistency of events continued in the post-application period with those occurring prior to the application for citizenship date."

In Re McCarthy and Minister for Immigration, Local Government and Ethnic Affairs (1993) 30 ALD 447, the applicant had been born in Ireland in 1960. He had arrived as a temporary resident in Australia in 1986. He became a permanent resident on 27 February 1989. On 13 May 1989 he left Australia to take up a position in Brunei and had not returned by the time of this appeal. He applied for Australian citizenship on 11 July 1991 by which date he had spent only 75 days in Australia as a permanent resident. The applicant and his Australian employer argued that the Minister's discretion should be exercised in his favour for the following reasons:

In 1989 one of the subsidiaries of the employer won a significant contract to provide engineering design services to Brunei Shell Petroleum. It was the first Australian consulting engineering company to win a contract to provide such services to a major oil and gas producer in the region;
The applicant provided the services under this contract and the project was an unqualified success;
The employer was confident of receiving further work;
A key factor in the employer's success in Brunei is the presence of the applicant to provide expert advice; and
Mr McCarthy's presence in Brunei is of direct benefit to the employer and to Australia.

The Tribunal did not accept these as sufficient to satisfy the statutory requirements. The problems were said to be as follows:

The applicant said that Australia's offshore industry would benefit only upon his return. The statute requires the activities to be beneficial at the time an applicant engages in them;
It was claimed that the applicant's experience would assist him in obtaining further consultancy work. Even if accurate, this would not be a relevant argument because the activities must be beneficial to the interests of Australia rather than to an applicant. Further, the applicant's activities may have provided a future benefit which is intangible. The fact that the three substantial projects referred to in the second letter were to be carried out in the future by the applicant's company was not relevant. What was relevant was whether between 13 May 1989 and 11 July 1991 the applicant was engaged in beneficial activities; and
The claim that the applicant's employer had 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. Further, as in the Tsui case (supra), such activities may be so remote, indirect and speculative as regards Australia's interests that they could not be taken into account.

The McCarthy case (supra) may be difficult to reconcile in some respects with the Federal Court decision in Roberts (supra). The tribunal in McCarthy appears less flexible that the Federal Court in what it will accept as adequate to provide a benefit in the interests of Australia. The Federal Court would seem more tolerant of alleged benefits of the following types:

A benefit of a general or non-specific character; and
An increase in an applicant's "personal capital" that is likely to improve Australia's economic or industrial performance at a later date. The examples in Roberts (supra) of a person studying or using a new technique overseas to bring back to Australia, or enhancing his or her chances for remunerative work and advancement upon returning to Australia, are in turn examples of benefits that might not be recognised by the tribunal in the Tsui (supra) or McCarthy (supra) cases.

These observations would have greater importance in a different case where an applicant satisfies the requirements in the Roberts case (supra) but does not satisfy the McCarthy (supra) requirements. Most notably the Tribunal appeared to reject the personal capital argument discussed in the last paragraph.
In Re Page (supra) much the same situation arose. The applicant, a British citizen, first entered Australia with his wife and two children as migrants. He was given a resident entry permit on 11 February 1976 and took up residence in Sydney on 2 March 1976. The family lived in Australia for about 10 years. The applicant was retrenched in Australia in 1985 and found work in Papua New Guinea. He had worked in Papua New Guinea from then until he applied for citizenship in the early 1990s. He worked in Papua New Guinea for Fujitsu (PNG), a subsidiary of Fujitsu (Australia). His employer wrote a letter to say that it was very necessary that Mr Page remain in Papua New Guinea because of his knowledge and familiarity with the situation there.
The Tribunal earlier quoted Deputy President Breen's words indicating how Mr Page's activities were beneficial to the interests of Australia.
From these authorities and the Ho case (supra) the following principles emerge:
The benefit to the interests of Australia can be commercial or otherwise (Roberts (supra)).

The benefit to the interests of Australia can be of a general or non-specific nature but must be more than the private interests of the applicant (Roberts (supra)). Benefit to both Australia's interests, and to private interests, is permitted to coexist (Kao (supra)).

Construction work overseas, such as oil rig construction in the United Kingdom or Brunei, might be beneficial to the interests of Australia if the applicant working on the construction site is studying or using new techniques or materials with a view to introducing them to Australian construction, or if he or she was taking Australian technology to those places (Roberts (supra)).

It may possibly be argued that an Australian worker overseas who is paying Australian taxation on earnings is acting beneficially to the interests of Australia (Roberts (supra)).

Australian employment attributable to an applicant's activities overseas can indicate that the applicant has been involved in activities beneficial to the interests of Australia (Kao (supra)).

Overseas activities by an applicant that generate Australian exports of low value may be relevant unless the value is so small and insignificant as to be ignored (Kao (supra)). Action to promote Australian exports may be presently beneficial to the interests of Australia quite apart from the value of the exports themselves (Kao (supra)).

An applicant's activities overseas that are of importance in the promotion overseas of Australian technology may be beneficial to the interests of Australia (Page (supra)).

It is not necessary that a period overseas must be spent engaged for 24 hours a day seven days a week in activities beneficial to the interests of Australia. The activities need only be substantial activities of the applicant for limited periods (Ho (supra)).

It is permissible to consider activities of the applicant after the date of the application to see whether there is consistency of action (Chai (supra)).

10) The overseas activities must be beneficial to the interests of Australia at the time when they are engaged in, not at some future time (McCarthy (supra)).

11) The benefits from overseas activities must not be so remote, indirect and speculative as regards Australia's interests that they cannot be taken into account (Tsui (supra), McCarthy (supra)).

Applying these principles to the activities claimed by the Applicant in the present case the Tribunal makes the following findings.
Mr Lan's activities attract investment to Australia. This is clear from the evidence in the form of testimonials in Exhibit A2, from the letter in Exhibit A7 and from the Applicant's statement in Exhibit A3. The Roberts case (supra) held that the benefit to Australia can be commercial or otherwise. The Tribunal finds that this outcome generated by Mr Lan is a relevant commercial benefit to the interests of Australia.
The benefits flowing from Mr Lan's activities in Hong Kong attach to Australia and not just to Mr Lan. He has helped encourage migration and investment in Australia. He attracts insurance business which brings him a percentage of the premium income. However, the sales of those policies, and the disposition of the remainder of the premiums, must be to the commercial benefit of Australia. The Roberts case (supra) and Kao case (supra) held that the activities can benefit the personal interest of the applicant and the broader interest of Australia. The Tribunal finds that the benefits to Australia from Mr Lan's activities, while not enuring exclusively to Australia, are none the less valuable to Australia despite the fact that Mr Lan derives benefit from them also.
While it can be relevant that an Australian worker operating overseas can act to benefit Australia's interests by paying Australian taxation (Roberts (supra)), the evidence was that Mr Lan does not pay Australian tax (Exhibit A2). However, the point was made (Exhibit A2) that Australian taxation is paid on the income from his insurance sales, and Western United would pay company taxes on its operations which are assisted by Mr Lan's activities. The Tribunal finds that the Australian taxes paid indirectly as a result of Mr Lan's activities in Hong Kong are a reflection of overseas activities by the Applicant beneficial to the interests of Australia.
There was convincing evidence, notably from Mr White, that the employment of three Australians is directly attributable to the work brought into Australia by Mr Lan as a consequence of his activities overseas. In the Kao case (supra) it was held that overseas activities contributing to employment in Australia can be accepted as activities beneficial to the interests of Australia. The Tribunal finds that this principle is applicable in Mr Lan's case.
Mr Lan is active in selling Australian insurance policies to some 1,000 foreign-owned companies and to Australian-registered companies established by Asian residents or Asian migrants living in Australia. The evidence given by a variety of sources associated with Inswire and the Western United company is that Mr Lan's work accounts for premiums valued at around $2m, generating commissions worth about $300,000. The Tribunal finds that these activities are beneficial to the interests of Australia in the relevant sense. Considering authorities such as Kao (supra) and Page (supra), the Tribunal finds that Mr Lan's claims are probably stronger. The Tribunal considers the value of the services exported through Mr Lan's efforts to be substantial, rather than low value. The Tribunal finds that Mr Lan's activities can relevantly be described as activities to promote the export of Australian services.
The Tribunal noted the arguments as to the time spent overseas by Mr Lan on activities that can properly be said to be beneficial to the interests of Australia. As he said in his evidence, his weekly work for the Australian company, Western United, amounts to about five hours. This could require that he not be given credit for all of the time he spends in Hong Kong working for the Zurich group and performing other work not related to Western United. This might be so even though the Ho case (supra) allows some flexibility in this regard. The Tribunal has considered this matter and has concluded that Mr Lan was correct when he submitted orally that, even when he is doing his Zurich work, he is engaged in networking that is of direct or indirect benefit to him when he is promoting investment into Australia. The Tribunal finds that this is the case and finds that Mr Lan should be permitted to count all of his time spent in Hong Kong as time spent furthering the interests of Australia.
The Tribunal recognises that in making this decision it has relegated the arguments against Mr Lan put by the Respondent. Some explanation is required for this.
The Tribunal noted that Mr Lan had not provided some of the information required under Instruction 4.5.16 of the Citizenship Instructions. The Tribunal finds that it is not legally essential that an applicant abide by the requirements of that instruction. Many applicants will be able to do so and should do so. It would assist the Respondent to assess their applications more promptly and accurately. However, in this instance the Tribunal finds that it would be impractical for Mr Lan to provide material in the form requested. Instead he and other witnesses have provided a satisfactory explanation of Mr Lan's activities both in Australia and in Hong Kong such that the information sought through the instruction is unnecessary.
The objection that Mr Lan does not pay personal income tax in Australia has been dealt with already.
The objection that Mr Lan spends only a small part of the week on Inswire business in Hong Kong has been dealt with already.
The Tribunal has not accepted the argument that Mr Lan works in Hong Kong for Inswire basically for his own benefit. The Tribunal has found for reasons already explained that a benefit to the interests of Australia has also accrued.
The Tribunal considers that the objection that the commissions and premiums generated by Mr Lan for Inswire come largely from Australian registered companies does not convey the full story. As Mr Lan explained in evidence, many of those companies have been established in Australia on his recommendation and advice. This is corroborated in some of the testimonials.
The Tribunal notes the argument that the benefits to Inswire will cease once Mr Lan retires. The Tribunal sees several problems with this proposition. First, Mr Turner explained that Mr Lan is talking less of retiring than of retreating to Australia from Hong Kong in 2001. He intends still to be commercially active. This seems borne out by Mr White's evidence that Western United would find it advantageous to have access to Mr Lan when he settles full-time in Australia. In addition the Tribunal considers that, through inertia, the business placed with Inswire is likely in large part to remain even after Mr Lan ceases to be active, provided Inswire's service standards are maintained. Finally, the focus in considering s 13(4)(b)(i) is on the period leading up to the date of the application, even if it is permissible to look at the later period to inquire into consistency (Chai (supra)).
It was objected that Mr Lan's property holdings in Australia are for his own benefit. The Tribunal agrees that there may be some force in this submission but, in the Tribunal's view, these property holdings are really relevant only to s 13(1)(j) of the Act and are of limited relevance to s 13(4)(b)(i).
It was suggested that Mr Lan's primary residence is in Hong Kong. The Tribunal is not certain that it accepts this proposition. Mr Lan has no freehold property in Hong Kong, whereas he is a considerable landholder in Australia. However, even if that is correct, the Tribunal notes that it is not a matter of central relevance in assessing whether the Applicant has engaged in activities beneficial to the interests of Australia. The legislation is silent on the matter.
The Tribunal notes that Mr Lan sought Australian citizenship about a year after entering into the employment contract with Western United. The Tribunal does not read anything adverse into this timing. The evidence was, and the Tribunal finds, that Mr Lan's activities after Western United took over Inswire were much as they had been before. The employment contract seems to have been a formal device to put his status on a well-defined footing.
The Tribunal has therefore found that the discretion in s 13(4)(b)(i) of the Act should be exercised in favour of the Applicant so that he is accepted as having engaged in activities
Is the Applicant likely to reside in Australia, or maintain a close and continuing association with Australia, if granted a certificate of Australian citizenship?

This is the requirement in s 13(1)(j) of the Act. The Tribunal finds that the Applicant is likely to reside in Australia if granted a certificate of Australian citizenship. The Tribunal bases this finding on a number of factors. He owns four properties in Sydney. His immediate family members are all Australian citizens who for one or other acceptable reason currently live outside Australia but are said to intend to return to live here. Mr Lan's sworn evidence was that he intends to reside in Australia largely full-time from about July 2001.
Conclusion
The Tribunal has decided that the preferable decision would be to accept that Mr Lan, from 6 August 1993 to 5 August 1998, when overseas, was engaged in activities beneficial to the interests of Australia. In the Tribunal's view there is sufficient evidence before it to find that Mr Lan has satisfied, or can be taken to have satisfied, s 13(1)(a), (b), (d), (e) and (j). To the best of the Tribunal's knowledge the Respondent has not yet inquired into the matters raised by s 13(1)(c), (f), (g) or (h). It will be necessary for the Respondent to proceed to do that.
Decision
The Tribunal sets aside the decision under review and remits the matter to the Respondent with the following directions:
the Respondent is to assess the Applicant for a grant of a certificate of citizenship on the basis that he has satisfied s 13(1)(a), (b), (d), (e) and (j) of the Australian Citizenship Act 1948; and
the Respondent is to use its own judgment to assess the Applicant for the grant of a certificate of citizenship in respect of the other paragraphs in s 13 of the Australian Citizenship Act 1948.
I certify that the 112 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member Sassella
Signed:         .....................................................................................
  Associate
Date of Hearing  14 June2000
Date of Decision  3 May 2001
Solicitor for the Applicant  Mr R Turner
Representative for the Respondent        Ms P Chadderton