Re Taechaubol and Minister for Immigration and Multicultural Affairs - [2001] AATA 425

DECISION AND REASONS FOR DECISION [2001] AATA 425

ADMINISTRATIVE APPEALS TRIBUNAL )

) No N1999/848

GENERAL ADMINISTRATIVE DIVISION       )
           Re      SADAWUT TAECHAUBOL
  Applicant
           And    MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
  Respondent

DECISION

Tribunal M J Sassella, Senior Member

Date21 May 2001
PlaceSydney

Decision      The Tribunal sets aside the decision under review and remits the matter to the Respondent with the following directions: 1) 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 2) 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.
  ..............................................
  Senior Member
CATCHWORDS
Australian citizenship - present in Australia for one of the immediate previous two years and two of the immediate five years prior to applying for citizenship - engaged in activities beneficial to the interests of Australia – permanent resident status – having children who are Australian citizens - the discretion to treat time spent outside Australia as if it were time spent in Australia – promotion of Australian business interests in Thailand – substantial investment in Australia – investment in Australia – investment in Asia by Australia – likely to maintain close ties with Australia

Australian Citizenship Act 1948, s 13

Re Tsui and Minister for Immigration, Local Government and Ethnic Affairs (1991) 24 ALD 236
Re McCarthy and Minister for Immigration, Local Government and Ethnic Affairs (1993) 30 ALD 447
Re Singh and Minister for Immigration and Multicultural Affairs (AAT 12855, 3 May 1998)
Re Ho and Minister for Immigration and Multicultural Affairs (1994) 34 ALD 664
Re Chotiprasiddhi and Department of Immigration and Ethnic Affairs (AAT 9688, 23 August 1994)
Minister for Immigration, Local Government and Ethnic Affairs v Roberts (1993) 41 FCR 82
Re Liu and Minister for Immigration and Multicultural Affairs [1999] AATA 251
Tinamisan v Minister for Immigration and Multicultural Affairs (1996) 43 ALD 439
Re Kao and Minister for Immigration and Ethnic Affairs (1993) 30 ALD 916
Re Pai and Minister for Immigration and Ethnic Affairs (1994) 35 ALD 762
Re Page and Department of Immigration and Ethnic Affairs (1995) 36 ALD 481
Re Chai and Minister for Immigration and Ethnic Affairs (1994) 36 ALD 751
Re Rosario and Department of Immigration and Ethnic Affairs (AAT 10802, 27 February 1996)
Re Abraham and Department of Immigration and Multicultural Affairs (AAT 12364, 3 November 1997)

REASONS FOR DECISION

21 May 2001 M J Sassella, Senior Member

History of Application

On 22 October 1998 the Applicant lodged with the Department of Immigration and Multicultural Affairs ("the Department") an application for grant of Australian citizenship (T10). From that application a number of facts can be ascertained:

The Applicant was born on 28 March 1952 in Thailand.

His occupation is businessman.

He is currently a citizen of Thailand.

He arrived in Australia as a permanent resident on 23 October 1983.

In the application it was conceded that Mr Taechaubol could not satisfy s 13(1)(d) and (e) of the Australian Citizenship Act 1948 ("the Act") because he had not been present in Australia for one of the immediate previous two years and two of the immediate five years prior to applying for citizenship. Recourse was had to the concession in s 13(4)(b)(i) of the Act on the basis that "during the five year period prior to him making this application, he was a permanent resident and not present in Australia, and he was 'engaged in activities … beneficial to the interests of Australia', so that this period may be treated as a period during which he was present in Australia as a permanent resident". Reference was made to:

Permanent residence since 1983.

Mrs Taechaubol and three of their four children have been Australian citizens since 1989. The fourth child was born an Australian citizen.

Mr and Mrs Taechaubol bought a family home on Point Piper, Sydney, in 1990.

Mr Taechaubol has bought and sold various properties since he first arrived in Australia.

Mr Taechaubol's business interests in Thailand are substantial and ongoing and have enabled him to participate in a meaningful way in the Australia – Thailand relationship in business terms as well as in a non-commercial way through his influence with the Thai government.

Mr Taechaubol regularly spends time in Australia with his family and for business purposes and has done so over a long time, even if his business commitments prevent him from meeting the usual residence requirements for citizenship.

Mr Taechaubol's business activities are significant in scale and scope, involving joint venture and business relationships with major Australian companies to provide export opportunities and his close relationship with Thai government ministers and officials provides a significant opportunity for promotion of Australian interests.

Also provided were a number of other documents. These included copies of family passports, Australian citizenship certificates for the others in Mr Taechaubol's family, Mr Taechaubol's entry and exit record, a list of business groups and people escorted to Australia by Mr Taechaubol, materials on series of development proposals in Australia and Thailand and material on companies owned or operated by Mr Taechaubol. There was other material provided of less immediate relevance.
The Department ascertained that Mr Taechaubol had been in Australia for 193 days in the two years before the date of his application (and outside Australia for 537 days in that period), and for 409 days in the immediately preceding five years (and outside Australia for 1,417 days in that period) (T4).
On 27 November 1998 the Department wrote to Mr Taechaubol's representatives, AMIS Consultants Pty Ltd ("AMIS") because, in the Department's view, the Applicant had failed to put any activities beneficial to the interests of Australia into any broader context of his overseas activities (T6). He had not said how much of his time overseas was spent on relevant activities. It was also for the Applicant to demonstrate how Australia has gained an objective benefit from the Applicant's overseas activities. This was something he had not yet done.
On 14 January 1999 AMIS responded (T7). The response concentrated on the Applicant's contribution to "the Thai Water Supply Project" with Linden Group and other joint venturers. Reference was made also to Western Metals Limited ("WML"), an Australian zinc lead producer. WML agreed to sell 20% of the company to Thai company, Padaeng Industry Plc. WML increased its shareholding in Padaeng Industry to 45% in July 1998. Mr Taechaubol sponsored these arrangements. Mr Taechaubol has close connections with the chairman of Padaeng Industry, Mr Sarasin. Mr Sarasin was invited to join the Asian advisory board of the Australian Colonial Mutual group. This "is demonstrative of the strategic relationships being formed between Australian companies seeking to operate in Asia. Mr Taechaubol's involvement in this is not peripheral and the benefits to Australia can be measured in more than immediate dollar terms."
Attached was a letter dated 8 January 1999 from Dr John Saunders, chairman of the Linden Group. He made the following points:

Linden is Australian owned and based and is involved in major project development in Asia, particularly Thailand. It structures Australian inputs of engineering, technology, construction and operation.

Late in 1995 Mr Taechaubol appointed Linden to the board of Country (Thailand) Plc ("Country (Thailand)") to identify major infrastructure projects in Thailand of possible interest to Australian countries. Country (Thailand) is one of Mr Taechaubol's group of companies.

A number of projects were shortlisted. Mr Taechaubol spent considerable time in discussions and negotiations with Thai government agencies and potential Thai partners.

The attractive projects included a water supply infrastructure project in Bangkok. During 1996 and 1997 a consortium including Mr Taechaubol, Linden and a number of other Australian interests was set up. It did a significant feasibility study and tendering work for the $A1b project. No decision emerged in Thailand because of the 1997 economic crisis.

Mr Taechaubol spent considerable business time on these activities in an endeavour to achieve an outcome that might still be of considerable benefit to Australian companies.

Mr Taechaubol has spent considerable time supporting the business activities of Country (State) Pty Ltd ("Country (State)"), his company in Sydney.

On 25 February 1999 the Applicant attended an interview with Mr S Brawley of the Department and his own migration agent. A record of the interview is T8. The following new information emerged:

A number of Australian companies who had operated in Thailand for a long time were finding it difficult to win contacts for Thai government infrastructure projects. Dr Saunders approached Mr Taechaubol for assistance on behalf of the Australian companies. He had known Dr Saunders for a long time.

Mr Taechaubol had wanted to diversify the activities of Country (Thailand). He therefore formed the consortium to bid for the Thai Water Supply contract.

In relation to the water supply bid Mr Taechaubol explained the role of each party. His was to liaise with the Thai government. The bid was prepared and submitted. At the interview date the Thai Government had not made a selection. The project is on hold because of the economy. Mr Taechaubol said that he had devoted about 50% of his time to this project in 1996-1997.

Mr Taechaubol claimed he devoted 50% of his time to securing potential projects in 1995.

Mr Taechaubol claimed that for the last two to three years he had been looking for overseas investment opportunities.

Mr Taechaubol's company, Country (Sydney) [this should probably be Country (State)] finds investors for projects in Australia. A property development in Glebe between 1996 and 1998 was financed through a Singapore bank. The project was worth $A30m. Mr Taechaubol assisted his wife in her negotiations with the bank. Country (Sydney) is now involved in a city villa project. Mr Taechaubol has spent six to eight months negotiating with a Singapore bank for finance.

Mr Taechaubol said he was not really involved in the WML activities in South East Asia. He had helped check out the company and gave advice as asked.
A project, Underwater World, was discussed. It is on hold at present. It would involve adding a water theme park to Country Marina City, a resort project owned in Thailand by Country (Thailand). He paid Alliance Technology $A150,000 to do a feasibility study. 90% of the resort project has been completed.

A project, Ocean Port Development, was discussed. It was to happen in Sydney. Mr Taechaubol was involved with Australian interests, especially a Mr Ashford, in this project mainly while present in Australia. From Thailand he was in telephone contact with others involved in the project. Mr Taechaubol had withdrawn as a partner when the economic downturn occurred in Thailand. The project is on hold.

Mr Taechaubol intends to hire Mr Ashford's company to do a feasibility study on the "Riverport Bangkok project". This could be worth $A500,000 to $A1m.

Mr Taechaubol approached an Australian company about building an IMAX cinema in Thailand. This project did not proceed.

Mr Taechaubol approached an Australian company for the manufacture of an indoor snow centre in Thailand. This project is on hold.

Mr Taechaubol had attended the Queensland Boat Show. He may purchase some boats when the Marina City resort in Thailand is completed.

Mr Taechaubol is divorced. He claims no hardship if he is denied Australian citizenship.

On 5 May 1999 Mr Brawley, the Minister's delegate in the Department, wrote to Mr Taechaubol to say that his application for Australian citizenship had not been approved (T9). He had failed to satisfy s 13(1)(d) and (e) of the Act which deal with residence in Australia. It had also been decided not to exercise the discretion in s 13(4)(b)(i) of the Act in Mr Taechaubol's favour. Attached was a "decision record" setting out reasons for the decision. The reasons were as follows:
Mr Taechaubol attended the Sanctuary Cove Boat Show in 1995. He was considering export opportunities to Thailand. There is no evidence that exports eventuated. He has not exported the Australian manufactured "CityCat" for the Riverport development.

Mr Taechaubol may have helped his wife obtain overseas finance for two property developments in Sydney. However, Mr Brawley was not satisfied that he was engaged in this activity for any significant period of time, or that it provided any direct benefit to Australia.

While Mr Taechaubol may promote "Australian interests" through his close association with the Thai Government he has not established that this has led to any objective benefits for Australia.

While Mr Taechaubol may have met with the Minister for Foreign Affairs and Trade (Australia) and officials in that Minister's department, he has not demonstrated any significant benefits to Australia through these meetings.

Mr Taechaubol has made numerous business trips to Australia but he has not demonstrated that these trips provided any direct benefit to Australia.

While Mr Taechaubol is supporting his son, who may be studying business practices in Thailand, and will use this knowledge for Australia's benefit in the future, Mr Taechaubol's current support for his son is not providing any immediate direct benefit to Australia.

Mr Taechaubol has demonstrated that he has explored a number of options for investing in Australia. However, he has failed to demonstrate that he devoted a significant amount of time while overseas to these activities, or that the projects actually eventuated. The Hobart and Sydney projects have stalled.

Mr Taechaubol admitted to a small role in Padaeng Industry's purchase of 20% of WML.

Mr Taechaubol has sought to involve numerous Australian companies in various projects in Asia. However, Mr Brawley was not satisfied that these activities had resulted in any direct benefit to Australia. The Thai infrastructure projects, for which consortia including Australian interests bid, have not led to objective benefits for the Australian public. The Thai IMAX theatre project and indoor ski centre did not proceed.

10) The $A150,000 paid to Alliance Technology for a feasibility study of "Underwater World Development" may have benefited Alliance Technology. It did not appear to benefit the broader Australian community.

On 7 June 1999 the Applicant lodged with the Tribunal an application for review of the decision.
The hearing
A hearing was held before the Tribunal on 6 and 7 July 2000. The Applicant was represented by Mr Collins, QC and Mr Potts of Counsel. The Respondent was represented by Ms Fraser from the Australian Government Solicitor's office. The following material was taken into evidence at the hearing:
Documents prepared pursuant to s 37 of the Administrative Appeals Tribunal Act 1975 Exhibit TD1
Statement of the Applicant filed 29 June 2000   Exhibit A1
Statement of Dr Saunders filed 29 June 2000    Exhibit A2
Applicant's contentions of facts and law dated 24 September 1999   Exhibit A3
Brochure for Citivilla Managed Investment        Exhibit A4
Prospectus for Citivilla Managed Investment     Exhibit A5
Leaflet – work done by Stephen Kitching (Thailand) Co Ltd and Country (Thailand) Co Ltd           Exhibit A6
Agreement for appointment of construction manager b/w Country Thailand and Stephen K (Thailand) Co Ltd     Exhibit A7
Statement of Applicant's involvement in business in Australia Exhibit A8
Respondent's statement of facts and contentions dated 14 October 1999   Exhibit R1

Legislation

The relevant legislation in this matter is the Australian Citizenship Act 1948, in particular s 13:
"13 Grant of Australian citizenship
(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 year 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 a 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:
          (a)       the Minister shall not take into account, as a period during which the applicant has been present in Australia as a permanent resident, any period during which the applicant has been confined in a prison or has been confined in a psychiatric institution by order of a court made in connection with criminal proceedings against the person; and
          (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;
,,,"

Applicant's initial submission

For the Applicant, Mr Collins suggested that the decision-maker had added three impermissible glosses to the legal requirements relating to the discretion to treat time spent outside Australia as if it were time spent in Australia. The first gloss was that Mr Brawley was looking to find activities that produced a direct benefit to Australia. There is no requirement that the beneficial effects be "direct".
The second was that Mr Brawley was looking for benefit to Australia. The legislation speaks of "activities … beneficial to the interests of Australia". The requirement is not for some concrete, palpable benefit. Thus, the Applicant's involvement in projects that did not proceed could have helped raise the profiles in Asia of the Australian companies which had participated in the lapsed projects.
The third was Mr Brawley's emphasis on the benefit having to be to the public interests of Australia. The Act refers simply to the interests of Australia.
Mr Collins cited examples in Mr Brawley's reasoning where he found against Mr Taechaubol on these grounds. These were in his observations such as that Mr Taechaubol never exported the CityCat boat to Thailand, that Mr Taechaubol's relationship with the Thai Government has not brought objective benefits for Australia, that no significant benefits to Australia arose from Mr Taechaubol's meetings with the Australian Minister for Foreign Affairs and Trade, no direct benefit flowed to Australia from Mr Taechaubol's business trips to Australia, Mr Taechaubol's son's possible future contribution to Australia is not a present direct benefit to Australia, the discarding of a number of projects that failed to materialise, the undervaluing of the introductions by Mr Taechaubol of Australian businesses and managers to Asian entrepreneurs and the discounting of the benefits to Australian company, Alliance Technology, as a result of work placed with it by Mr Taechaubol.

Section 13(4)(b)(i) does not require Mr Taechaubol or a decision-maker to identify particular days overseas that can be taken into account as if the Applicant were resident in Australia.
The Applicant satisfies s 13(1)(j) which requires a decision-maker to be satisfied that the Applicant would, if granted a certificate of citizenship, be likely to reside in Australia or maintain a close and continuing association with Australia. Mr Collins put that the Applicant has deeply embedded roots in Australia. He is almost certain to maintain these connections. He owns a building in Castlereagh Street, Sydney worth $A28m. His family trust owns the property at Point Piper worth $11.2m in 1991. His four children are Australian citizens who are fully committed to Australia. At present they live with their mother. The Applicant and his former wife are involved in an ongoing business relationship in Australia.
Applicant's evidence
Dr Saunders
Dr John Saunders, chairman of the Linden Group, gave oral evidence by television link from Singapore. Dr Saunders' curriculum vitae was Exhibit A4. He had made the statement in Exhibit A2. The main points in that statement were:

While now chairman of the Linden Group he had previously been a director-general in the Greiner Government in NSW. The Linden group is actively involved in promoting and participating in infrastructure projects in Asia. One of these related to water treatment in Thailand.

In August 1995 the Applicant approached Dr Saunders with a view to them working together to promote infrastructure projects in Thailand and Asia more generally and in securing Thai investment for Australia. They reached agreement and proceeded.

He has known Mr Taechaubol as a substantial investor from Thailand in Australia.

Dr Saunders and Mr Taechaubol agreed that the Applicant would be based in Thailand and identify projects there and in Asia, negotiate and deal with government authorities and identify private sector participation. Dr Saunders, in Australia, would identify Australian investors for the infrastructure projects and advise as to investment opportunities in Australia for Thai investors. The aim was to provide business for Thai and Australian companies and to bring economic benefits to both Australia and Thailand. They met monthly.

Mr Taechaubol spoke with Thai authorities and canvassed water, rail, road, power, health and telecommunications as possible areas of activity. Out of this it was decided that the proposed water treatment plant project in the western region in Thailand should receive particular attention. This was the Thai Water Supply Project.

Dr Saunders visited Thailand in September 1995 and, through Mt Taechaubol, met ministers and advisers in departments to do with telecommunications, foreign affairs, and the water authority. Mr Taechaubol actively liaised with the relevant ministries as regards the water project in September and October 1995. He also negotiated and discussed with private sector companies to take part in the water project between October and December 1995.

Mr Taechaubol also lined up an array of other groups in Thailand to form a joint venture.

Dr Saunders identified some Australian firms which could assist. Mr Taechaubol contacted them and spiked their interest. The Linden Group was going to participate.

On 12 December 1995 a memorandum of understanding ("MOU") was drafted for the water project. This was later settled by Australian law firm, Corrs Chambers Westgarth .

Mr Taechaubol continued his work on the project in Thailand. The MOU was signed by all parties in April 1996. A revised MOU was signed in December 1996.

The project did not proceed because of the Asian financial crisis. Throughout 1996 and 1997 the Applicant was engaged in liaising with the participants, negotiating with Thai government entities, meeting with Dr Saunders, rearranging the venture when at least one party dropped out and doing many other hands-on jobs in Thailand.

"Taechaubol's continued presence in Thailand was essential for promoting the project and I verily believe this could not have been done by Taechaubol travelling from time to time to Thailand", wrote Dr Saunders.

"The process of arranging and organising the project required continued attention by Taechaubol and myself virtually on a daily basis between September 1995 and July 1997. …"

"Although the water treatment project did not proceed due to Asia crisis, Linden Group has benefited from the contacts established and from the knowledge of the conditions on doing business in Thailand and infrastructure projects and is in a position to be ready to participate and arrange infrastructure and other projects in Thailand once the economy in Thailand improves."

In examination in chief the following new material emerged.
Dr Saunders was Director-General in the Department of State Development for the NSW Greiner Government from 1989 to 1994. He was responsible for all negotiations for inwards and outwards investment involving NSW. He was Deputy Managing Director of AUSTRADE between 1987 and 1989.
He first met Mr Taechaubol in Bangkok in the late 1980s. He met him again in 1995.
Mr Saunders discussed the genesis and development of the Thai Water Supply Project, covering much of what was in Exhibit A2. However he mentioned that Mr Taechaubol was especially useful on the ground in Thailand because of his role as adviser to the Thai Ministry for the Interior. He had a general access card and, especially, access to the Minister. The Applicant was one of only about 100 influential people in the Bangkok private and government sectors. He could set up meetings with government ministers at short notice.
Dr Saunders referred to a number of other projects. The first was the "river tunnel project". This was a traffic tunnel under Bangkok. The Applicant was interested in accessing Australian participation. The Applicant escorted some Thai representatives of Australian interested companies to see Thai government technicians who had done a pre-feasibility study. The project did not proceed. There are potential future benefits for the Australian companies which were involved.
The second was the "rail project", a very fast train ("VFT") from Kuala Lumpur to Bangkok and then on to China. Mr Taechaubol was aware of Australian work on VFTs. Dr Saunders had been involved in this in Australia in 1990-1994. Mr Taechaubol's job was to provide advice to the Thai Government on this project. The Australian contribution would be concept work and civil works. This project also appears to have languished.
There was then the "electricity project". This would have used Australian coal. The Applicant used his influence in attempting to have the boiler technology adopted suitable for the use of Australian coal. The project was deferred. There is now strong competition from Indonesia and South Africa for this project. Even if the infrastructure is foreign-owned, Australian employment should be enhanced through coal exports when the project is finished. Dr Saunders stressed that Australian companies now have a foothold in Thailand. The Applicant has been instrumental in the flow of benefits from Thailand to Australia. Australia has a profile, commitment, skills base and resource base for future negotiations. Without this Australia would be swamped by American and British interests.
The Thai Water Supply Project was discussed fully in Exhibit A2. However, an additional aspect was canvassed orally. One Australian firm in the joint venture, Concrete Constructions, had a poor reputation in Thailand as a result of some unsuccessful building work it had done in Bangkok. Mr Taechaubol worked to ensure that Concrete Constructions would be acceptable as a joint venturer. By 1996 the Applicant had achieved this. Dr Saunders emphasised that the Applicant was very actively involved in the water project up to July 1997. From early in 1997 to July there was frantic activity as the Australian interests wanted greater equity in the project. Negotiations were required to increase the benefits to the Australians at the expense of the Thai participants. Several Thai participants were under pressure from the coming Asian crisis conditions. Senior officers from the Australian companies went to Bangkok every eight weeks to attend meetings convened by the Applicant. The Thais agreed to reduce their equity. The whole project stopped two days before the tenders were due to close. The Applicant was in close communication with the Minister to ascertain what might happen if the IMF came in to "rescue" Thailand. The Applicant recommended that the tender not be lodged because $A30m, a bid bond, would have been at risk if the tender had gone forward.
The "telecommunications project" ran from 1996 to 1997. The Thai Government was issuing mobile telephone licences. Telstra was interested in possible participation. The Applicant wanted an Australian company to be selected to partner Thai interests rather than a German or American provider. Telstra was occupied with Indian and Vietnamese activities. Telstra was retreating from Asia and so this came to nothing.
Dr Saunders reaffirmed that the above work done by the Applicant could not have been successful if done from Australia. The Applicant is known in Bangkok as a promoter of Australian interests in Thailand. It is known that there is no better way for an Australian firm to go forward in Thailand than to attract assistance from Mr Taechaubol.
Ms Fraser cross-examined Dr Saunders. She elicited the following new information.
Dr Saunders understands that personal contacts are still as important as ever in Thailand despite the economic crisis.
The Thai Water Supply Project is being revived but in a phased form.
Asked to describe how the Linden Group has actually benefited from its dealings with Mr Taechaubol, Dr Saunders said,
"Linden as did the other Australian companies became very well known in Thailand at that time. Thailand is a gateway into Indo-China and I began initially on an introduction of Mike Taechaubol, activity in Vietnam, essentially on the same model as Bangkok where I had a heavily based partner to Linden with the same intention, co-ordination between Australia and Vietnam. I'm now chairman of the Australian/Vietnam Business Council. The intensity of that activity in Thailand followed from the work I'd done in government in Australia and in New South Wales, and report to Foreign Affairs in Australia. It was a real life experience of negotiating consortium formation with a Thai coordinator, Thai government, just read Asian government commitment into tenders and outcomes. It was the biggest real life and first real life test of Linden capability to add value into the situation. I visited Bangkok. I have stayed away from Bangkok simply because the presence that I met in my judgment did not warrant the commitment of resources and times to travel back into – to Bangkok, but I had travelled back into Bangkok beginning in April, beginning to investigate, test the situation, investigate other opportunities. I'm also dealing in Bangkok with some companies which are active through our office in Bangkok into Vietnam for example. So for me the Thai water project and the other project to some extent, the Thai water project was the first test of the way in which value can be added between Australia and an Asian country like Thailand and the way in which Linden can in fact operate.
"… I would argue at great length that during '96/'97 those activities in the present tense were beneficial to the interests of Australia. Beyond the companies that were involved they were beneficial to call reserves on skill and infrastructure capabilities that Australia was trying to project and obtain reference projects in Asia." (Transcript, 29-30)

The benefit to Australia from the rail project was that it gave Australia an opportunity to record its substantial expertise in VFT planning. The electricity project was beneficial to the interests of Australia in that it was calculated to involve the importation of Australian coal. The benefit to Australia from the telecommunications project was much as with the others: Australian companies were investigating opportunities and possibilities as a result of Mr Taechaubol's activities. There are intangible, indirect benefits such as a better reputation, higher profile for a brand name, wider knowledge of firms' capabilities. Australian companies, with the exception of Telstra, had been keen to participate in all projects.

Mr Taechaubol

The Applicant had provided a written statement (Exhibit A1). The fresh points made in that document were:

He has been a substantial investor in Australia through his family trust.

He has promoted investment by Australian companies in Thailand and investment by Asian investors in Australia.

In 1994-1995 he diversified from investing in property in Australia to investing in Australian property development. He intended to spend substantial time in Australia to look after the various developments. However in discussions with Dr Saunders in August 1995 it became clear that there were considerable infrastructure project proposals in Thailand and Mr Taechaubol believed he could be instrumental in providing involvement by Australian expertise in these projects. He worked with Dr Saunders to prioritise the possible projects.

Mr Taechaubol covered much similar ground as Dr Saunders did in Exhibit A2. However, Mr Taechaubol mentioned that his ex-wife carried out the day to day work "regarding development from Sydney, Australia, and I could manage the developments from Thailand".

Mr Taechaubol was involved generally daily between September 1995 and August 1997 on the water project. He listed his activities:

Meeting and liaising with ministers and government officers.

Identifying, negotiating and liaising with partners and relevant solicitors involved in the joint venture.

Negotiating the percentages of equity participation of the joint venture investors.

Identifying and negotiating with substitute joint venture investors and communicating the changes to the existing joint venture partners.

Continued discussions and correspondence by telephone, faxes and monthly meetings with Dr Saunders.

Negotiating the MOU.

Negotiating the joint venture agreement.

Renegotiating, restructuring and dealing with two power projects.

Obtaining relevant infrastructure and materials for preparation of plans and surveying.

10)Identifying and surveying suitable land and arranging for options.

In addition to references to other projects covered by Dr Saunders, Mr Taechaubol refers to assistance he gave Stephen Kitching, an Australian architect, to establish an architectural business in Thailand. He introduced Mr Kitching to potential clients and assisted him to obtain projects. Mr Kitching earned substantial fees in Thailand. This assistance took about three weeks work.

He also mentions assistance he gave his son, an Australian citizen, to become a joint venturer in a mobile telephone business in Thailand. Mr Taechaubol promoted the joint venture and assisted in obtaining the relevant approvals.

He referred to visits by Thai business people to Australia to promote investment by each group in the other country. He cited eight visits between 1993 and 1997. Each required some time in Thailand for organisation purposes.

In oral evidence Mr Taechaubol spoke of his family trust's property in Castlereagh Street, Sydney. It was acquired in 1992 for $A30m. It is fully rented. It has 15 storeys. The Point Piper residential property was bought as a family residence in 1990. Mr Taechaubol has bought the adjoining property for $A1.4m. He hopes to build a town house on it for his children at a cost of $A1.7m. He has used an Australian architect to draw up designs. Much of this money is generated from overseas and spent in Australia.
Mr Collins took Mr Taechaubol through his educational qualifications and to the awarding to him by the King of Thailand of the Knight Grand Cross First Class of the Crown of Thailand. This was awarded because of Mr Taechaubol's business success and his public leadership. He was an adviser to the Thai Minister of Commerce for two and a half years to 1996. He is president of some four Thai public companies. He is a member of the board of trustees of the Burapa University.
As regards Mr Taechaubol's business connections with Australia, reference was made to his position as a patron of the Chinese Chamber of Commerce in Sydney, a position he assumed about eight years ago.
The Applicant spoke of the Citivilla Project in George Street, Sydney. It is a renovated building owned by the Applicant or, perhaps more accurately, one of his companies. It is 98% complete. Over $A50m had to be borrowed. Mr Taechaubol could achieve this because of his business success. This project has provided work to other Australian firms such as architects, engineers and a project management company.
Mr Taechaubol discussed his work and connections in Sydney. He has personal Thai and Chinese friends in Sydney. In a professional sense he watches out in Australia for business opportunities. He sees Australia as a second home. He acts as an intermediary for investment into Australia. In reverse, he also acts as an intermediary for Australians interested in investing in Thailand. He mentioned the United Overseas Bank ("UOB") in Singapore. The UOB financed Mr Taechaubol's purchase of his Castlereagh Street, Sydney property. Mr Taechaubol convinced his UOB contacts to begin investing in Australia and they have bought several Sydney hotels. The Applicant said that there were a large number of other examples.
The assistance the Applicant gave Mr Kitching was then discussed. Mr Kitching apparently worked in Thailand for four years as a result of Mr Taechaubol's efforts in getting him there. He was assisted there by other Australian staff, six of whom were senior staff, and three of whom were junior staff. Mr Kitching worked extensively with other Australians on a project called the Country Marina Hotel in Bangkok. He also worked on a range of other projects including Grand Central Plaza ballroom, refurbishment of the Somerset Hotel, the design of Pipat Gardens, the Kata Noi residential development housing project, Savico Apartment Design high rise apartments, the IBY office fitout and work with the Applicant's companies on other residential projects in Thailand.
Mr Taechaubol said he proposes to continue a close association with Australia if he is granted citizenship. His family and children live here all the time. They want to stay here and they and he want everyone to live close together. He proposes to develop significant business and personal interests in Australia. Mr Taechaubol likes Australia's climate, its people, its proximity to Thailand, its educational standards and the fact that it is a land of opportunity if one works hard.
Ms Fraser cross-examined the Applicant. She took him through the various projects mentioned in his application and the T documents. She sought to demonstrate that most of these amounted to nothing at the end of the day and that the benefits to Australia were doubtful.

As regards the Queensland or Sanctuary Cove Boat Show, it seems that the Applicant did not actually attend it. However, he went there several times and was looking at the CityCat boat as a possible export. The Applicant accepted Ms Fraser's proposition that there was no documented benefit to Australia. The Applicant did stress that he might consider developing a boat export company in Australia selling to residents of Country Marina who would want their own river craft. Mr Taechaubol was clear that he favoured buying from Australia.

Another project was "Underwater World". This was a project located in Beijing and Bangkok which would make use of Australian technology. The project has been deferred indefinitely. A feasibility study was done in Thailand but no appropriate land could be found in China. $150,000 was paid to Australia's Alliance Technology for a study. Ms Fraser pointed out that there was no hard evidence of payment having been made to the Australian company.

As regards the Country Marina City project in Bangkok there is no evidence of the time devoted to the project by the Applicant when he has been outside Australia. The Applicant said that the project had occupied the greatest part of his time from 1993 to 1998.

The Ocean Port Development Sydney was pursued in conjunction with the MIRAI Group. The members of MIRAI are listed at folio 269 of the T documents and the list is an international roll call of 16 companies, including at least two Australian companies (there may be others in addition). The Applicant said that he spent comparatively little time on this project and most of that was in Australia. He was involved because of his overseas contacts, especially those useful for obtaining finance. The Applicant's contribution was largely speaking with people. The project ceased in July 1997.

The Riverport Bangkok Project was potentially beneficial to the interests of Australia in that the Applicant had lined up Australian company, Intergrowth, to conduct a feasibility study. The feasibility study did not proceed because of the Asian financial crisis. This project could be revived.

The Applicant was involved in the Oceanport Hobart project as a potential financier. His money was required to acquire the land. At folio 381 of the T documents there is a letter dated 18 November 1997 from the Applicant to the Australian promoters withdrawing from the project.

The Bangkok IMAX project went ahead but with a different developer whom Mr Taechaubol introduced to Australian experts. He believes that the successful tenderer has used Australian expertise in the project.

The indoor snow centre project involved the Applicant in scouting locations. He knew of Australian expertise in snowmaking. The scheme did not proceed. The Applicant put no money into it.

The Thai Water Supply Project brought benefit to Australians in the form of the legal work done by Corrs Chambers Westgarth and the communications between the participants.

The Australian company, Country (State) Pty Ltd, is run day to day by the Applicant's former wife. He is no longer a director. He is on call at all times to assist whether he happens to be in Australia or overseas. He is the lead actor in financial dealings.

Applicant's submissions

After the hearing the representatives provided final submissions in writing. The following is the essence of the Applicant's submission.
The interests of Australia identified by the Applicant as relevant in this application are listed in paragraph 24 of the written submission:
Australia's good relations with its neighbours from the point of view of defence, trade and intercourse.

Investment in Australia.

Investment by Australia in Asia.

Advancement and promotion of things Australian.

Advancement and promotion of exports.

Establishment, advancement and promotion of Australia's reputation.

Advancement of things Australian, for example, Australian schools and universities.

Establishment and advancement of inter-governmental relations between Australia and Asia, particularly Thailand.

Advancement of Australia's position generally in the broader Asian sphere.

10) Establishment of Australia's profile as a potential provider and exporter of expertise.

11) Establishment of Australia's position as a contributor to economic and infrastructure development in South East Asia generally.

There are two findings of fact which the Tribunal should make that have not in any relevant respect been challenged in the slightest by the Respondent. In paragraph 71 of Exhibit A2 Dr Saunders wrote, "The process of arranging and organising the [Thai Water Supply] project required continued attention by Taechaubol and myself virtually on a daily basis between September 1995 and July 1997."
In paragraph six of the Applicant's statement (Exhibit A1) he says, "I have been continually involved and generally on a daily basis between September 1995 and August 1997 in the joint venture water project in Aomni-Aoma Thailand …"
The Applicant stressed the involvement of other Australian companies, CMPS & F Pty Ltd, CGE Australia Pty Ltd and Concrete Constructions Ltd in the Thai Water Supply Project.
The Applicant should be permitted to count the time he spent on the water project from September 1995 towards the one year in two years requirement in s 13(1)(d) of the Act and the two years in five years requirement in s 13(1)(e) of the Act.
When the other activities and projects beneficial to the interests of Australia are included he meets the discretionary requirements easily. These include the assistance given to Steven Kitching, the rail project, the coal – electricity – power station project, the telecommunications project, the snow project, the underwater world project, the CityCat project, the Riverport project and the sponsoring of delegations to Australia. Mr Taechaubol has promoted Australian education by putting his own children through the Australian system and recommending it to his friends.
Mr Taechaubol was able to earn substantial income overseas that was then invested in Australia, boosting the economy and labour market. He generated overseas income that was beneficial to the interests of Australia.
The Applicant's representative suggested that Mr Taechaubol would maintain a close and continuing association with Australia if granted citizenship. This was shown by the following evidence:

His evidence that "Australia is just my second – it's my home now". He also refuted the proposition that he would not retain such a close association. He mentioned that he is building a town house for his children next door to his house in Point Piper.

His long and close association with Australia over almost 20 years.

His deep and extensive roots here. He has four children, all Australian citizens. They intend to live and work in Australia and can be expected to bring up families here. He has a family home at Point Piper. He has business interests here, notably the building in Castlereagh Street, Sydney. He has a desire to invest further in Australian business opportunities. He sees Australia as a second home. He has strong connections with the Chinese business community in Sydney. He has a close and amicable personal and business relationship with his former wife.

Respondent's submissions

The Respondent's written submissions raised the following essential arguments. In relation to the Thai Water Supply Project Dr Saunders said that no bid document was ever submitted. The Applicant said in evidence that he thought one was. There is a lack of documentary evidence of the Applicant's contribution to this project. There is no documentary evidence as to the work carried out in Australia in furtherance of this project. The work done by Australian participants was essentially self-funded. There was no apparent economic benefit to the Australian companies, especially as they had contributed to a project that did not proceed. There is no evidence of any benefit to the interests of Australia at the time when the Applicant was engaged on this project. Dr Saunders suggested that the benefits to Australia from this project were indirect and resulted from a "flow on" effect. They included reputation, brand presence, getting brand names of Australian companies and technologies acknowledged. There was no documentary evidence of any flow on effects. This alleged flow on effect is too remote and speculative to bring the Applicant's activities within the legislation. The cases of Re Tsuiand Minister for Immigration, Local Government and Ethnic Affairs (1991) 24 ALD 236 and Re McCarthy and Minister for Immigration, Local Government and Ethnic Affairs (1993) 30 ALD 447 were cited.
The Respondent submitted that not even indirect or flow on effects emanated from the water project. This was based on comments by Dr Saunders who said there were two steps to success in respect of future tense outcomes. The first is to be a very successful competitor. The next is to "win the gold medal". Success is not marked only by winning. It can be enough to establish serious commitment. This is done by making a bid in a tender process. In the Thai Water Supply Project there was no bid. There was no evidence of serious commitment. This argument is applied by the Respondent to the other projects where the bid stage was not reached. These were the river tunnel project, the electricity project, the telecommunications project and the rail project. The Respondent wrote, "It would be nonsensical to argue that the 'reputation' and 'brand presence' of the relevant Australian based companies was acknowledged, given that each project came to a halt before any bid or formal commitment was put before the Thai government."
In relation to the telecommunications project and coal importation from Australia, no documentary evidence has been provided as to the Applicant's actual assistance as given or of any benefit to Australia's interests.
Any assistance provided by the Applicant to Dr Saunders is as an ancillary activity forming part of the necessary involvement that would be expected of somebody in the Applicant's position given the type of clientele he wishes to attract to his business. The case of Re Singh and Minister for Immigration and Multicultural Affairs (AAT 12855, 3 May 1998) was cited.
The Respondent referred to Re Ho and Minister for Immigration and Multicultural Affairs (1994) 34 ALD 664 and quoted paragraph 25:
"It cannot 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 ameliorative provisions of this paragraph. Something more is necessary, and that something must be of a public character."

The Respondent referred to Underwater World in China and the associated entertainment centre in Bangkok. There was no documentary evidence of the Applicant's work on these projects. There was no documentary evidence of the existence of the project. There was no documentary evidence of any benefit to the interests of Australia. There was no documentary evidence of $A150,000 said to have been paid to Australia's Alliance Technology for a feasibility study. In any event, such a one off payment would not suffice to satisfy the legislation.
As regards the Country Marina City project the Applicant's major claim is that Mr Kitching's company was appointed to act as construction manager for the project. The Applicant has not shown how his involvement with Mr Kitching's company was beneficial to the interests of Australia. The Applicant is chairman of Mr Kitching's company, Stephen Kitching (Thailand) Pty Ltd, and the Applicant's involvement is for his own or his company's financial gain. There is no demonstrable objective benefit to Australia. Paragraph 10 of Re Chotiprasiddhi and Department of Immigration and Ethnic Affairs (AAT no 9688, 23 August 1994) was cited in support. The Singh case (supra) is also referred to for the same proposition as mentioned above. Reference was made also to the Ho decision (supra) and to Minister for Immigration, Local Government and Ethnic Affairs v Roberts (1993) 41 FCR 82 where the Court said that there must be a benefit to more than the private interests of the applicant. There must be some objective benefit to Australia.
There is no documentary evidence of Mr Taechaubol's claim that he was introducing Mr Kitching's company to other Thai promoters. It is also unclear how this would be beneficial to the interests of Australia.
As for the Sanctuary Cove Boat Show, the Applicant has never made a decision to import a boat from Australia into Thailand. At best there may be some future benefit. This is intangible and irrelevant as in the McCarthy case (supra). There is also no evidence that this exercise involved any activities outside Australia.
The Ocean Port Development Sydney project was vulnerable on several fronts as a project in the present context. The financial benefit would be to Country (Thailand), Mr Taechaubol's Thai company; Mr Taechaubol was primarily involved in the project while actually present in Australia; in Thailand he simply maintained telephone contact with an Australian principal; no land was purchased for the project; and Mr Taechaubol eventually withdrew in 1997. Country (Thailand) had not made any financial commitment prior to withdrawing. In any event there are no documents evidencing Mr Taechaubol's work on this project.
Ms Fraser cited Re Liu and Minister for Immigration and Multicultural Affairs [1999] AATA 251 at paragraph 29 where Senior Member Allen said:
"Presently the proposed programme is just that, namely a proposal. Whether it is in fact completed and, if so, the completed project benefits Australia, is completely speculative. At present no benefit to Australia has accrued so it cannot be said that the Applicant was engaged in activities beneficial to the interests of Australia."

Ms Fraser referred to the Oceanport Hobart project and noted that Mr Taechaubol's evidence was that he had been involved in none of the activities surrounding this project. This is another project from which Mr Taechaubol withdrew when the Asian economy declined.
As regards the IMAX cinema in Thailand there is no documentary evidence of the Applicant's alleged indirect involvement with the successful developer behind the project. Any benefit to Australia would at best be a flow on benefit. This would be too remote in accordance with the decision in the Tsui case (supra).
The indoor snow project never proceeded to fruition. The Applicant's evidence was that he spoke to an Australian company about the manufacture of the centre but there is no documentary evidence of this. The Respondent argued that there were no relevantly beneficial activities involving Mr Taechaubol. The McCarthy case (supra) requires that the activities must be beneficial at the time when the applicant engages in them.
Mr Taechaubol claimed a connection with Country (State) Pty Ltd, his wife's Australian company. He invested large sums of money in Australian properties through this company and negotiated large loans for the company. The Respondent submitted that investments in Australian properties and negotiating loans are not activities beneficial to the interests of Australia. These are private financial investments. Deputy President McMahon said in the Chotiprasiddhi case (supra) that mere passive property investment is not a relevant activity. At paragraph 10 the Deputy President said:
"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."

In the Applicant's statement of facts and contentions, at paragraph 13, it is asserted that the Applicant's activities in respect of Country (State) Pty Ltd have resulted in benefits to Australia in that this has provided employment opportunities, use of Australian goods and services and ultimately stimulated the economy. The Respondent countered by arguing that there is no documentary evidence to substantiate the Applicant's claims of past and ongoing activities in respect of Country (State) Pty Ltd projects.
The Respondent said that the Applicant's arguments to the effect that he had provided support to his son in Thailand in relation to his studies and business ventures in Thailand were unsupported by evidence as to how these activities were of public interest to Australia. The argument that what benefits Mr Taechaubol junior also benefits Australia must fail because those activities are so remote, indirect and speculative that they should not be taken into account. The Tsui case (supra) was cited as authority. The case of Tinamisan v Minister for Immigration and Multicultural Affairs (1996) 43 ALD 439 was cited for the proposition that there must be a clear nexus between the activities engaged in overseas and the claimed benefits for Australia.
The Respondent argued that there is no documentary evidence that the Applicant has worked to promote overseas the interests of Australian educational institutions.
As regards the visits to Australia by Thai government and business representatives, there is no documentary evidence of any investments or other transactions implemented as a result of these alleged overseas activities. There is no substantiation of any benefit to the interests of Australia. The Respondent argued that the decisions in ReKaoandMinister for Immigration and Ethnic Affairs (1993) 30 ALD 916 and Re Pai and Minister for Immigration and Ethnic Affairs (1994) 35 ALD 762 are distinguishable. In Kao (supra) the Tribunal found that the applicant's activities, which involved business dealings in the timber and furniture industries, were essential to the maintenance of the Australian business. In Pai (supra) the applicant provided evidence that, through his company he had made five transactions which involved the export of pure beef tallow worth $US1.6m from Australia to Taiwan. The evidence showed that part of these sales secured markets from overseas competitors.
In the instant case, Ms Fraser said, the Applicant had not cleared that first hurdle of demonstrating that his activities were essential to the maintenance of a relevant Australian business.
Ms Fraser also distinguished Re Page and Department of Immigration and Ethnic Affairs (1995) 36 ALD 481. In that case the applicant was employed by a subsidiary of a "fully Australian-based company". The Tribunal held that the applicant's activities were vitally important to the company for whom he worked. As a result of the company's Australian link it could be inferred that the applicant's activities were of importance to the promotion overseas of Australian technology and that they were important to Australia.
Ms Fraser referred also to a claim by the Applicant that he had arranged for a wine industry visit. There was no documentary evidence of this claim and no evidence of any benefit to Australia.
Ms Fraser mentioned that the feasibility study, involving an Australian company and intended as part of the Riverport project in Bangkok, had never occurred. No money had been paid to the Australian company identified. This is at best an intentional benefit that is too remote and speculative to fall within the legislation. The Tsui (supra) and McCarthy (supra) cases are relevant.
Ms Fraser addressed s 13(1)(j) of the Act and submitted that there was no evidence that the Applicant, if granted citizenship, would be likely to reside, or to continue to reside, in Australia or maintain a close and continuing association with Australia. According to both Dr Saunders and the Applicant, he has been based in Thailand as part of an agreement to promote infrastructure projects in Thailand. He continues to act as chairman of his Thai company, Country (Thailand), and has not provided evidence that he intends to relinquish that role.
The Respondent submitted that commercial dealings and property investments are not necessarily indicative of close association with a country. The degree of association with Australia should not be measured in terms of financial investment. In Chotprasiddhi (supra) Deputy President McMahon said at paragraph 14 that the applicant had no present continuing association with Australia except for her investments and her personal contacts with her siblings. There was no evidence that this was a "close association".
The Respondent noted that there was no documentary evidence of the Applicant's connection to the Chinese business community in Sydney.
Applicant's further submission
The Applicant's reply to these submissions concentrated on the proposition that there is no need for documentary evidence in this case where there is uncontradicted sworn evidence of the many matters asserted. In paragraph 10 of the Applicant's reply to the Respondent, the following appears:
"10. The Respondent's submissions may properly be approached and considered from three viewpoints:
(i)A long treatment of a number of activities which in themselves are important and which do substantially advance Mr Taechaubol's application but which are not the central matter relied upon, which is the long term involvement in the water project.
(ii)An attempt to advance a legal proposition along the lines that before section 13 applies it is necessary to point to a precise quantifiable benefit in dollar terms accruing to the Australian economy.
(iii)A submission that Mr Taechaubol is not likely to maintain a close and continuing relationship with Australia.

This latter submission was apparently merely a formal submission and should not trouble the Tribunal further because:
(a) "it did not endeavour to or deal with any of the considerable evidence to the contrary of the submission;
(b) it did not refer to any evidence which contradicted the evidence in the Applicant's case;
(c) it did not attempt to show why the Applicant's evidence was not conclusive of the issue; and
(d) it did not refer to the Applicant's submissions."

At paragraphs 11 –14 the Respondent proceeded to state:
"11.     As to the Respondent's submission referred to in paragraph 10(i) above none of the Applicant's evidence is challenged. It should therefore be accepted.
"12.     That leaves remaining for consideration the submission of the Respondent that the proven activities must be translated into ultimate dollar-measurable terms before it can be said that such activities have been 'beneficial to the interests of Australia'. That is not the law. Moreover, such a submission is contrary to the guiding principles set out in the judgement of Mr Justice Einfeld in Roberts (1993) 41 FCR 82.
"13.     When all is said and done the present case presents a simple question of fact. In answering that question the words of the section must be placed at the forefront of the analysis. If in the words of Mr Justice Einfeld it can be said that Mr Taechaubol's activities 'provide(d) some advantage to Australia, whether commercial or otherwise' then Mr Taechaubol should be permitted to become a full Australian citizen.
"'14.     The concept [activities beneficial to the interests of Australia] necessarily connotes some public interest in 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.'" (per Einfeld J. in Roberts (supra)".

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 22 October 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 communicated in T10 on behalf of the Applicant and was not questioned at any stage.
The Tribunal finds that the Applicant has attained the age of 18 years. He was born on 28 March 1952 (T10).
The Tribunal makes no finding as to whether the Applicant understands the nature of the application. The Tribunal considers that Mr Taechaubol 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 193 days in Australia in the two years before the date of his application (T4).
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 409 days in Australia in the five years before the date of his application (T4).
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)); and

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

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 23 October 1993 and 22 October 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:
Foremost was Mr Taechaubol's work on the Thai Water Supply Project.
A lesser activity was the Applicant's assistance to Mr Kitching.
Similarly subordinate was the work done on the rail project, the coal/electricity/power station project, the telecommunications project, the snow project, the underwater world project, the CityCat project, the river port project and sponsorship of delegations to Australia.
There was Mr Taechaubol's promotion of the quality and benefits of an Australian education.
Mr Taechaubol generated substantial income overseas that was then invested in Australia, boosting the economy and the labour market.
Against this the Respondent argues that, in general, in respect of all of the projects, introductions and assistance to Australians suggested by the Applicant there is a lack of documentary evidence relating to:
his work or contribution; or
any dollar values from such activities that may be used to assess the extent of any benefit to the Australian entity involved, or to Australia's more public interests.
In relation to the Thai Water Supply Project, the centrepiece of the Applicant's case, no bid was ever lodged. This would block the prospect of any flow on effects by way of reputation and brand profile in Thailand. This objection would apply also to the river tunnel, electricity, telecommunications and rail projects.
The Respondent also objected to some of Mr Taechaubol's activities as being no more than ancillary to what would be expected of a person in the Applicant's business with his type of clientele.
Some of Mr Taechaubol's activities were carried out while he was actually present in Australia. These would not qualify for consideration.
Some of the activities amount to merely a proposal to do something that might later benefit Australia's interests.
Looking first at Mr Taechaubol's arguments to the effect that his efforts in Thailand have been beneficial to the interests of Australia, it is necessary to consider the authorities.
In the first of these, Re Tsui (supra), 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 Roberts (supra), 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 –
the importance of oil rig construction in terms of national resource policy;
the desirability of having Australian citizens engaged in it;
the length of Mr Roberts' prior association with Australia;
his strong family connections with this country;
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 ReChai and Minister for Immigration and Ethnic Affairs (1994) 36 ALD 751 in which 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 (supra), 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 applicant succeeded in Re Pai (supra) where Deputy President McDonald wrote at pages 763-764:
"(13)    ….activities involving the promotion of Australian exports may themselves be considered to amount to a present benefit [the Kao case (supra) was cited as authority].
"(14)    Exhibit A shows that Mr Pai and his wife, after coming to Australia, purchased a proprietary limited company (called Maylock Pty Ltd) and subscribed to it a working capital of $1m. The purpose of the company is to trade, in particular, exporting Australian food and food-related products to Asian countries. It is undisputed that a series of five transactions occurring prior to 9 November 1992, were conducted by the applicant through Maylock Pty Ltd and involved the export of pure beef tallow from Australia to Taiwan worth $US1.6m. These transactions were actual sales and not prospective as suggested by the delegate when considering this issue …
"(15)    Documents in ex A, T11, at 108, 113-15 (inclusive) show that part of the sales of Australian beef tallow opened up an export market, which was previously held by the United States. Additionally, the market was under competition from other substitutes exported from Malaysia, Thailand, China and Japan (ibid, see p 108).
"(16)    Apart from the actual sales of pure beef tallow, it was Mr Jones' evidence that the applicant had assisted Australian trade delegations make contacts in Taiwan. As well as his oral evidence, Mr Jones set this out in a letter to the department: see Ex A, T11, at 141.
"(17)    Further, I am satisfied that whilst outside Australia the applicant has also been promoting other Australian products (eg 'presented samples of biscuits, cheese, jerked beef, salamee [sic], etc and made offers to 53 customers', see ex A, T11, at 114).
"(18)    Activities may be considered to be beneficial to an individual as well as to Australia as a whole: they are not mutually exclusive. It is advantageous and, therefore, beneficial to Australia to secure markets from overseas competitors, which brings in foreign currency revenue. Just as it is beneficial to promote Australian products, whether by assisting trade delegations, with contacts or directly approaching prospective purchases. Mr Pai has been engaged in all these activities, and the tribunal is satisfied that a benefit has accrued to the interests of Australia as well as to him.
"(19) The direct benefits to Australia are significant in relation to the exercise of a discretion under s 13(4)(b) of the Act.
"(20) I agree with Mr Grey that less direct benefits, eg the payment of tax, school fees, engagement of accountants and general consumption (ie by the applicant or members of his family) are secondary. They are too remote to be given any weight when considering the exercise of the discretion under s 13(4)(b) of the Act."

In Re Rosario and Department of Immigration and Ethnic Affairs (AAT 10802, 27 February 1996) the applicant argued unsuccessfully that he had engaged in activities beneficial to the interests of Australia on the basis that he worked weekends and an average of two nights a week on Australian Art Forms work. In August 1991 Thornday, a company in which the applicant was a director with his sister, acquired Australian Art Forms for approximately $70,000 from the Victorian Government. The business was originally established by the Victorian Government as a vehicle for promoting Australian art internationally and sold reproductions of Australian art in poster form.
The fact that Malaysia is a Muslim country allowed Mr Rosario to see clients and to conduct the business of Australian Art Forms on Saturday and Sunday. His work for Interface Heuga, for whom he worked in Malaysia, was from Monday to Friday. He said in a statement that he also spent his annual leave hosting a visit to Malaysia of one of his artist clients. Australian Art Forms paid all expenses for the artist to promote the business in Malaysia. In oral evidence he modified this to say that the artist did not visit. Rather, it was the artist's agent who made the visit. The applicant agreed that his primary employment was with Interface, but he was often able to work simultaneously on Art Forms work. The Australian Art Forms business had not developed in Malaysia as he would have wished. He had secured a contract worth $22,000 to supply Australian art prints for a Malaysian hotel. In Australia the company employed three people. The business had made a profit in only one year. The figures on salaries were discrepant in various respects. In paragraphs 20 and 21 of the reasons for decision Deputy President Forrest wrote:
"20. Mr Rosario indicated that the work in which he was engaged on behalf of Australian Art Forms in Malaysia would have a benefit for Australia in the future, as he was developing potential export markets for Australian art through contacts he had made. Intangible future benefits are not normally relevant to the exercise of discretion as the benefit must have accrued to Australia as at the time of application: McCarthy and Minister, Department of Immigration Local Government and Ethnic Affairs (Decision No. 8744, 28 May 1993, unreported); Melloway and Department of Immigration and Ethnic Affairs (Decision No. 9282, 23 December 1993, unreported). However, activities involving the promotion of Australian exports can themselves be seen as having a present benefit to Australia: see Re Kao and Minister for Immigration and Ethnic Affairs (1993) 30 ALD 916 (excerpt) and Re Pai and Minister for Immigration and Ethnic Affairs 20 AAR 342.
"21. I am satisfied, and it was conceded by the respondent, that the activities which Mr Rosario engages in when he is not present in Australia that involve the sale and promotion of Australian art are beneficial to the interests of Australia."

Later, the Deputy President wrote in paragraphs 25-28:
"25. Whilst the respondent conceded that the activity of promoting art overseas is of some present benefit to Australia, Mr Dalton submitted that in context the activity was too small to warrant the exercise of discretion in Mr Rosario's favour and fell well short of the objective benefit required for the exercise of the ministerial discretion.
"26. Mr McDonald submitted that Mr Rosario's activities on behalf of Australian Art Forms constituted his substantial business. It was his long term strategy to develop the image of the company internationally and to develop networks in Malaysia, as well as promoting sales. He had, it was put, invested significant capital in the business and worked assiduously to promote the activities of the business in Malaysia.
"27. The evidence does not in my opinion support this contention. Mr Rosario holds a significant full time position in Malaysia as development manager with a multi national company based in the United States of America. This is his primary activity. He conceded as much. I am satisfied that the demands on his time do not allow for the activities that he undertakes on the part of Australian Art Forms to be viewed as substantial.
"28. I accept that a lot of time and effort may be spent in establishing a new business and the results do not necessarily reflect the extent of that involvement. However, the fact that the level of sales in the Australian Art Forms business has been limited to one sale in the period up to application date tends to suggest on all the evidence before me that Mr Rosario's involvement in the promotion of the business has been an ancillary activity to his employment by Interface. Any plans to expand the business in Malaysia in the future are not relevant to the present application."

Finally, in the case Re Abraham and Department of Immigration and Multicultural Affairs (AAT 12364, 3 November 1997) the applicant left Australia in June 1984 to carry out activities which he described as, on behalf of the Menzies Hotel, Sydney, establishing a U S/California presence. He explained his overseas work as follows.
A number of Australian companies followed the Menzies, including Qantas Holidays, Robyn Thew Fashion Marketing, Beckitt-Bentley & Associates, VVM Marketing, Lee Manfred Public Relations and Tourism and Leisure Corporation (Interwest and Eden Hotels Australia) all with the same need to promote their companies and to market and sell their products and services and provide research. He had known of and worked with these companies and their representatives in Australia and it was these business acquaintances who wanted him to establish connections in the United States and who recognised his abilities in this area and were aware of his specific knowledge of the U S market.
They wanted to utilise his skills and knowledge of the U S market to provide cross-cultural commercial sensitivity and for other aspects of doing business there.
He was approached by Australian Hotel chain, Interwest Ltd, based in Melbourne. They hired him to open an office for them in Los Angeles. He worked for them from 1986 to 1990 on a consultancy basis. At the same time he was also working, on a consultancy basis, for other companies that he was approached by in Australia. He continued to maintain a client base of usually about four or five clients at any one time.
Each client had its own special needs and requirements in Los Angeles. He offered a variety of services for each individual client and these included sales and marketing, research and development and promotional activities. He had also established contacts in the U S with some universities. He used these contacts to assist him in developing marketing and business plans for his clients along with the latest trends in education methods and curriculum. Because his clients required him to be on the spot in Los Angeles and to travel at regular intervals to many different cities in the U S and sometimes Europe it was necessary for him to remain in Los Angeles on a fairly permanent basis. It was extremely expensive and also tiring to travel from Australia to these particular parts of the world on a very regular basis. The type of work that he did could not be done all at once. To maintain contacts and market prominence for his clients he had to be available and in touch with the market on a continuing basis. The clients that he worked for wished to maintain a profile outside Australia for commercial reasons and to maintain a competitive edge in their particular industries. For such companies it is an accepted business practice to have employees based overseas who are required to travel a lot. This gives them access to markets and provides them with a presence in areas that they might otherwise lose their competitiveness.
His job was well paid and his position in the industry well regarded. He said he would very much like to come back to Australia to work permanently and to be able to live here all of the time. However, it was difficult to find employment here with the same level of career opportunity. He had been in regular contact with a "headhunter" in Sydney who had found him some jobs with Australian companies. He had not taken these jobs as they had usually required him to be posted in Asia immediately. This seemed to be the general procedure for people who had the type of experience that the applicant had. He wished to come back to Australia to live in Australia on a permanent basis. If he was offered a similar type of job that required him to remain in Australia he would certainly take it. He would like to be able to find employment at the level that he had achieved. He had worked hard at his career and it was important to him to that he obtained employment that reflected his achievement.
The Tribunal found in favour of the applicant and Deputy President McMahon said in paragraph 16:
"The fact that the applicant was directly involved in activities directed to the furtherance of exports of travel services and fashion goods was apparently accepted as a sufficiently public benefit activity to qualify the applicant under this sub-paragraph. Although I may not have reached the same conclusion myself, I consider that, for the sake of consistency, I should accept the concession which the respondent has made. The activities of Mr Abraham certainly contain as many public benefit elements as those of the applicant in Re Chai and Minister for Immigration & Ethnic Affairs (1994) 36 ALD 751. It is appropriate that there be uniformity of approach within this Tribunal."

The Tribunal has undertaken this extensive review of the authorities because the legal principles that have emerged in this context are subtle in their impact and application. All subsequent cases attempt to interpret the fairly general remarks of Einfeld J in the Federal Court decision in Roberts (supra). In doing this the subsequent tribunals have been clearly influenced by the presentation and particular facts of each case. Nevertheless, it is necessary to try and distil some general propositions from the authorities to see whether they lead to any particular conclusion in the present appeal. If they do not, then the Tribunal is free to exercise its discretion and provide its reasons for that exercise. The Tribunal has decided that the following general propositions can be discerned from the authorities:
The benefit to the interests of Australia can be economic, cultural or social (Singh (supra)), commercial or otherwise (Roberts (supra)). Activities to promote Australian art overseas (Rosario (supra)) or to produce television programs to promote Australia overseas (Liu (supra)) could be activities beneficial to the interests of Australia.

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), Ho (supra), Singh (supra)). Work to promote the interests of one or two Australian companies is not the sort of activity of a public nature contemplated by the section (Ho (supra)). Benefit to both Australia's interests, and to private interests, is permitted to coexist (Kao (supra), Pai (supra)). However, activities predominantly in furtherance of the private interests of the applicant and his or her employer are not activities beneficial to the interests of Australia (Tinamisan (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)). However, in Pai (supra) it was said that paying tax, paying school fees, providing work for Australian accountants and generally acting as a consumer in Australian society would not be activity beneficial to the interests of Australia.

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)). However, again in the Pai decision (supra), there is some doubt cast on this proposition.

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 example may be assisting Australian trade delegations visiting foreign countries by providing contacts or approaching prospective purchasers (Pai (supra)). However, it was not enough simply to hold a position as finance director of a foreign company that imported livestock from Australia to Thailand (Chotriprasiddhi (supra)). The activities must also be substantial (Rosario (supra), Tinamisan (supra)).

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

An applicant's activities overseas that are of importance in the promotion overseas of Australian technology (Page (supra)), Australian art (Rosario (supra)), or work overseas for an Australian company (Tinamisan (supra)) may be beneficial to the interests of Australia.

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)). A mere proposal to engage in a project that might provide future benefits to Australia does not suffice (Liu (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)).

12) Ancillary activities such as with the Australian chamber of commerce in Hong Kong or providing assistance to the Australian International School Foundation, while laudable, are part of the necessary involvement expected of one with a particular business or clientele and are of no account as activities beneficial to the interests of Australia (Singh (supra)).

13) A mere passive property investment in Australia is not an activity beneficial to the interests of Australia (Chotriprasiddhi (supra)).

The Applicant provided a list of Australian interests he said he was furthering by his activities. How do these mesh with what the authorities have said?

Australia's good relations with its neighbours from the point of view of defence, trade and intercourse. This interest appears to be supported by propositions 1 and 2 above.

Investment in Australia. This interest appears to be supported by propositions 1 and 2 but the activity must not be predominantly in furtherance of private interests, must be substantial and must be engaged in as substantial activities for limited periods (to satisfy propositions 2, 6, 7), and must be more than passive property investment (proposition 13).

Investment by Australia in Asia. By itself this "interest" is not recognised in any of the general propositions.

Advancement and promotion of things Australian. This interest seems recognised in propositions 1, 2, 6 and 8 above.

Advancement and promotion of exports. This interest seems recognised in propositions 6 and 8 above.

Establishment, advancement and promotion of Australia's reputation. Propositions 1, 2 and 8 would support this alleged interest.

Advancement of things Australian, for example, Australian schools and universities. This interest may be supported by proposition 1 unless it is an ancillary activity such as those listed in proposition 12.

Establishment and advancement of intergovernmental relations between Australia and Asia, particularly Thailand. This interest may be supported by proposition 1.

Advancement of Australia's position generally in the broader Asian sphere. This interest may be supported by proposition 1.

Establishment of Australia's profile as a potential provider and exporter of expertise. This interest is recognised in propositions 6 and 8.

Establishment of Australia's position as a contributor to economic and infrastructure development in South East Asia generally. This interest may be supported by proposition 1.

The Tribunal can therefore largely agree with the Applicant's proposition that these are relevant interests of Australia if it can be said that Mr Taechaubol's activities were in furtherance of them.

As the Applicant recognised, his strongest claim in support of having engaged while overseas in activities beneficial to the interests of Australia was his work on the Thai Water Supply Project. This project could serve the interests of Australia in a number of ways:

As Dr Saunders said, Mr Taechaubol introduced Australian money and know how into a high profile Thai project much needed by Thailand. This could serve to enhance Australia's relations with Thailand politically and economically.

The contribution by Australian interests to preparing and promoting the bid that was to be lodged in the tender process was seen by the Applicant and Dr Saunders as for the advancement and promotion of things Australian. It would have enhanced the reputation of Australian enterprise for its know how. It would have reinforced brand names. It indicated the capabilities of the Australian firms participating with Thai firms in the project.

For similar reasons it could be said that the work put into the water project by Australian companies would serve to promote those companies as possible sources of goods and services in Thailand. This would advance and promote Australian exports generally, and exports of expertise in particular.

For similar reasons the work contributed by the Australian entities could well have served to establish, advance and promote Australia's reputation in Thailand. Again, Dr Saunders took this view.

The Australian contribution to such an infrastructure project, and the evidence that the Australian enterprises could deliver, if part of the successful bid, would enhance Australia's position as a contributor to economic and infrastructure development in South East Asia generally.

The Respondent's criticisms of these claims require attention.
The first of these was that the project did not lead to a bid. The Respondent quoted from Dr Saunders to suggest that this precluded any argument that Australian participants had benefited from enhanced reputation and similar advantages. Ms Fraser elicited from Dr Saunders an agreement to two propositions. One was that one step to success would be demonstrated by putting in a bid for a project. From this it could be expected that advantages to the promoter's reputation would flow. However, Dr Saunders was also adamant that indirect and intangible benefits had flowed to the Australian parties involved in preparing to bid for the project. Ms Fraser's question at page 43 of the transcript was a closed question, "That's by putting in a bid. When there's a tender process you put the bid in and then you've established serious commitment." Dr Saunders answered, "Yes, I'd say yes to that."
In the Tribunal's view, had Dr Saunders been asked whether the work done in this case, leading to an expected bid which was reconsidered at the last minute, could also indicate serious commitment, Dr Saunders would have answered in the affirmative. This is clear from paragraph 72 of his statement in Exhibit A2 where he refers to the benefits accruing to the Linden Group from its work on the water project. He wrote, "Linden Group has benefited from the contacts established and from the knowledge of the conditions on doing business in Thailand and infrastructure projects and is in a position to be ready to participate ad arrange infrastructure and other projects in Thailand once the economy in Thailand improves."
This may appear to be a mere future potential benefit as in Liu (supra) and so not a relevant benefit to the interests of Australia. However, the Tribunal's concluded view is that this is closer to the scenario in Roberts (supra) where it was said that construction work overseas might be beneficial to the interests of Australia if the applicant working on the construction site is studying or learning new techniques with a view to introducing them to Australian construction, or if the applicant was taking Australian technology to those places. Linden Group and other participants have added to their knowledge of the Asian or Thai modus operandi in infrastructure projects. This is a present benefit to them that equips them to compete better on an international scene.
It may be objected that these are essentially benefits limited to the companies involved in the project. This brings the Tribunal to the second reason why it believes that Dr Saunders' view is that benefits to Australia flowed to Australia despite the ultimate decision not to bid on the water project. At page 42 of the transcript Dr Saunders said:
"In other words, a considerable amount of economic activity by those [Australian] companies and the companies named are listed in the Australian industry sectors that we're talking about. They are part of a cluster of capabilities in Australia and are recognised by that by governments. So I think, I am only making that point to say I think the benefit here is to the companies but it's also to the cluster and hence Australia.
"… Reputation, brand presence, getting the brand name of Australian companies, getting the capability of Australian companies and technologies acknowledged, these are critical things to project outcome."

These benefits are broader than the direct benefit to a participating company. Dr Saunders is saying that the work done on this project has demonstrated something about Australian infrastructure capabilities in general. Dr Saunders was prepared to make these arguments in respect of a number of projects that concluded much earlier in their respective histories than the water project. The Tribunal reads Dr Saunders' comments as to what can be divined from lodging a bid as non-exclusive. Certainly the making of a bid solidifies commitment and impresses observers. However, even if a bid does not eventuate, there may be other activities, as here, representing serious commitment and demonstrating Australian capabilities.
The Tribunal takes note also of the peculiar situation in Thailand in September 1997. What was effectively a force majeure in the form of the Asian economic crisis intervened without warning to make it commercially foolhardy to lodge a bid. To have done so could have resulted in a loss of some $A30m. The evidence of both the Applicant and Dr Saunders suggested that a bid would have been lodged but for the crisis.
The Tribunal notes the Respondent's submissions to the effect that there is no documentary evidence regarding such matters as the work done by Australian companies, the Applicant's contribution or the intangible benefits to the Australian participants. The Tribunal accepts the counter-submission put for the Applicant. The Tribunal considered both the Applicant and Dr Saunders honourable and truthful witnesses and accepts that they did their best to state the facts, and their opinions as honestly as possible when giving oral evidence.
The Tribunal has therefore found that the Applicant's work between September 1995 and July 1997 involved him substantially in activities beneficial to the interests of Australia. The Tribunal accepts the evidence of Mr Taechaubol and Dr Saunders that the Applicant was engaged on work to further this project virtually daily during that period. The Tribunal relies on the remarks in the Ho case (supra) to the effect that the Applicant need not have engaged in work on this project 24 hours a day, seven days a week. Indeed, Mr Taechaubol said it took about 50% of his time. The Tribunal finds, in accordance with the Ho case (supra) and Rosario (supra) that the relevant activities were substantial activities of the Applicant on an almost daily basis. Therefore, the Tribunal finds that the entire period can be taken into account.
The Tribunal is inclined to accept the Respondent's submissions as regards the ancillary projects raised in support of Mr Taechaubol. These vary as regards the arguments that might be made as to the benefits they brought Australia. They vary as to how much work, and what type of work, was done by Australian companies in furtherance of them. The Tribunal could consider each and explain why it fails the requirements, but essentially it is for the reasons, other than lack of documentation, cited by the Respondent. In view of the findings in the Applicant's favour in relation to the Thai Water Supply Project it is not necessary to examine the ancillary projects further.
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?
The Applicant's representative as much as suggested that there should be no doubt that the answer to this question is "yes". The evidence was summarised earlier in paragraph 53.
The cases make certain comments on this requirement set out in s 13(1)(j) of the Act.

In Abraham (supra) at paragraph 28 the Deputy President says, "The evidence indicates that Mr Abraham is likely to reside in Australia on and from 10 December 1997 [five weeks after the date of the decision]. It is true that it is unlikely he will have sold his house in Los Angeles by then and that it will be let. Nevertheless, the paragraph does not require ownership of a residence. It is necessary to demonstrate only a likelihood of residence soon after the grant of the Certificate of Citizenship."

In Ho (supra) the Deputy President wrote at pages 671-672 in paragraphs 30 and 31:

"(30) Mr Ho has demonstrated close links with Australia through the settlement of his family and friends in this country and through the acquisition of assets. If he were able to satisfy the residential requirements, I have no doubt that he would be welcome as a citizen of this country. However, he chooses to live abroad. His plans for future residence are quite uncertain. I am not satisfied that he would meet the requirements of s 13(1)(j). This requires the minister (and therefore this tribunal) to be satisfied that 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 relationship with Australia. I am satisfied that he would maintain a close and continuing association with Australia through his family. I am not, however, satisfied that he is 'likely to reside' within the meaning of the terms of the paragraph.
"(31) It can not mean 'likely to take up residence in 18 months or two years time' or 'likely to reside some time in the indefinite future if economic conditions permit and if a suitable job can be found'. The juxtaposition of the phrase with the opening phrase of the paragraph, indicates that the minister must be satisfied that the applicant is likely to reside in Australia immediately, or very soon after, being granted a certificate of Australian citizenship."

In Rosario (supra) the Deputy President wrote in paragraphs 31 and 32:

"I am not satisfied that Mr Rosario has established an identification with Australia which outweighs that which he may have with any other country.
"32. Mr Rosario was born in Pakistan and was educated in Singapore and the United States of America. He owned a business and lived for a number of years in the United States of America. Since 1992 he has lived in Malaysia. He is a British citizen and holds a passport of the United Kingdom of Great Britain and Northern Ireland. He is married to a Swiss national. He has parents and siblings who reside in Australia. He has permanent residency status in Australia and has acquired, basically with borrowed funds, a fifty per cent ownership in the business, Australian Art Forms, which leases premises in Melbourne. He has an interest in an apartment in Australia that he and his sister have bought for his parents to live in. Mr Rosario has led an international lifestyle and his ties to any particular country are tenuous."

In Chai (supra) Deputy President McDonald wrote in paragraphs 14 and 15:

"It is plain that at that time in 1991, Mr Chai's expressed intention to re-establish in Australia was demonstrated by a strong financial commitment. He has been filing tax returns in Australia (for the year ending 30 June 1992 (exh A, T7, p 71) and 30 June 1994 (exh B, doc 13)).
"15. Given that Mr Chai's children are obviously well-settled in Australia and, given his long exposure to Australia as a young man such that Mr Chai's business associate, Mr Courtney, was able to describe Mr Chai as being 'just like my next door neighbour', with the other matters outlined earlier, satisfies the Tribunal that Mr Chai has established a 'prior primary identification' with Australia. The Tribunal is satisfied that it is his intention to live in Australia and, in the meantime, through his business associations, his wife and his children, as well as the result of purchasing a house in Australia, he maintains a close and continuing association with Australia (see section 13(1)(j))."

From these decisions it seems that, if reliance is to be placed on actual continued residence in Australia, an applicant, having commenced ongoing residence by the time of the decision, the applicant satisfies s 13(1)(j). If he or she intends to take up residence in the future, that has to occur immediately or very soon if s 13(1)(j) is to be satisfied. However, s 13(1)(j) appears to be satisfied in the alternative if the applicant intends no more than to "maintain a close and continuing association with Australia".
A close association might be demonstrated by an applicant having friends and family in Australia and through the acquisition of assets (Abraham (supra)). It might also be shown by "a strong financial commitment" by an applicant (Rosario (supra)). In Rosario (supra) there was a constellation of indicators: the applicant's children were well settled in Australia; a business associate described the applicant as just like a next door neighbour; there was the existence of Australian business associations; his wife and children were in Australia; he owned a house in Australia.
The Tribunal is satisfied that the Applicant would be likely to maintain a close and continuing association with Australia if granted a certificate of Australian citizenship. The Tribunal has accepted the arguments advanced and the supporting evidence on behalf of the Applicant in reaching its state of satisfaction.
Conclusion
The Tribunal's finding that from September 1995 until July 1997 the Applicant was involved in activities beneficial to the interests of Australia has the following implications for s 13(1)(d) and (e) of the Act, the provisions with which the Applicant does not literally comply.
The Applicant applied for Australian citizenship on 22 October 1998. He must show that he was present in Australia, or deemed to have been present in Australia, for one year between 22 October 1996 and 22 October 1998. During that period he was actually present in Australia for 193 days. He has to be deemed to have been in Australia for an additional 172 days if he is to satisfy s 13(1)(d). Between 22 October 1996 and 31 July 1997 the Applicant was in Australia for 44 days. He was involved on the Thai Water Supply Project and performing activities beneficial to the interests of Australia for 237 days. In the two years to 22 October 1998 the Applicant is found by the Tribunal to have spent 193 days actually in Australia and he is deemed to have spent an additional 237 days in Australia. This totals 430 days. This is more than one year. In fact it is 65 days in excess of one year.
The Applicant applied for Australian citizenship on 22 October 1998. He must show that he was present in Australia, or deemed to have been present in Australia, for two years between 22 October 1993 and 22 October 1998. During that period he was actually present in Australia for 409 days. He has to be deemed to have been in Australia for an additional 321 days if he is to satisfy s 13(1)(d). Between September 1995 and July 1997 the Applicant was in Australia for 119 days. He was involved on the Thai Water Supply Project and performing activities beneficial to the interests of Australia for 699 days. In the five years to 22 October 1998 the Applicant is found by the Tribunal to have spent 409 days actually in Australia and he is deemed to have spent an additional 580 days in Australia. This totals 989 days. This is more than two years. In fact it is 259 days in excess of two years.
The Tribunal has also found in Mr Taechaubol's favour in respect of s 13(1)(j) of the Act.
In the Tribunal's view there is sufficient evidence before it to find that Mr Taechaubol 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 163 preceding paragraphs are a true copy of the reasons for the decision herein of Mr M J Sassella, Senior Member.
Signed:         .....................................................................................
  Associate
Date of Hearing  6, 7 July 2000
Date of Decision  21 May 2001
Counsel for the Applicant  Mr Collins QC, Mr Potts
Solicitor for the Applicant  Dominic David Stamfords
Solicitor for the Respondent  Australian Government Solicitor
Advocate for the Respondent                   Ms Fraser