Sayed and Minister for Immigration and Citizenship
[2007] AATA 1508
•5 July 2007
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2007] AATA 1508
ADMINISTRATIVE APPEALS TRIBUNAL )
) No A2007/41
DIVISION ) Re KHALED ABDELAZIM ABBAS SAYED Applicant
And
MINISTER FOR IMMIGRATION AND CITIZENSHIP
Respondent
DECISION
Tribunal Mr S. Webb Date 5 July 2007
Place Canberra
Decision The decision under review is affirmed.
.................signed.............................
Mr S. Webb, Member
CATCHWORDS
Citizenship – permanent residency – periods in Australia – requirement not met – discretion – meaning of ‘activities’ ‘beneficial to the interests of Australia’ – academic and consultancy activities – research and development – personal and professional interest – benefit not contemporaneous with absence – decision affirmed
Australian Citizenship Act 1948 s13
Minister for Immigration Local Government and Ethnic Affairs v Roberts (1993) 41 FCR 82
Re Ho and Minister for Immigration and Ethnic Affairs (1994) 34 ALD 664
Re Natu and Minister for Immigration and Multicultural Affairs [2006] AATA 753
Taechaubol and Minister for Immigration and Multicultural Affairs [2001] AATA 425
Re McCarthy and Minister for Immigration, Local Government and Ethnic Affairs (1993) 30 ALD 447
Liu and Minister for Immigration and Multicultural Affairs [1999] AATA 251
Re Yiu and Minister for Immigration, Multicultural and Indigenous Affairs[2006] AATA 52
REASONS FOR DECISION
5 July 2007
1. Khaled Abbas Sayed is an eminent traffic planner, with an international reputation. He is an Egyptian citizen and holds an Australian Permanent Residence visa. He took up employment with the Snowy Mountains Engineering Corporation (‘SMEC’) in November 2005 and applied for grant of Australian citizenship. His application was rejected.
2. The matter proceeded before me on the basis that Mr Sayed is unable to satisfy the statutory criteria for grant of citizenship. On the materials before me that is plainly so. In the period from the activation of his permanent resident status on 17 August 2002 to the date of his application for Australian citizenship on 10 October 2006, Mr Sayed spent 283 days in Australia.[1]
[1] T8 folio 146 refers.
3. Mr Sayed proceeded on the basis that Ministerial discretion should be exercised in his case. In his submission, during the period from July 2004 to November 2005 he was engaged in activities that were beneficial to the interests of Australia. He says that during this period he conducted academic research and developed new ‘know-how’, and developed skills and a network of contacts while expanding his international reputation and affiliations. Mr Sayed submitted that he intended to transfer these benefits to Australia when he took up an appointment with SMEC in November 2005. In his submission, the benefits to Australia were accrued prospectively and are sufficient to warrant exercise of discretion to grant him Australian citizenship.
4. As will appear, I do not agree.
5. Grant of Australian citizenship is governed by Division 2 of the Australian Citizenship Act 1948 (‘the Act’). The criteria for grant of citizenship are set out at subsection 13(1). Essentially, an applicant must be a permanent resident who has been present in Australia for periods in aggregate of not less than 1 year in the 2 years prior to application and not less than 2 years in the 5 years preceding the application. There is discretion in the Minister to grant citizenship in certain circumstances (subs 13(9)). None of those circumstances apply in Mr Sayed’s case. Subp 13(4)(b) confers discretion to treat a period in which an applicant was overseas as a period in which he or she was in Australia as a permanent resident in certain circumstances, that is, relevantly in this case, if the person was a permanent resident and was engaged in activities beneficial to the interests of Australia while overseas (subp 13(4)(b)(i)).
6. Whether activities are beneficial to Australia is an objective test requiring probative evidence. What is meant by the term ‘activities … beneficial to the interests of Australia’ is not defined or circumscribed by the Act. Einfeld J considered the meaning of the term in Minister for Immigration, Local Government and Ethnic Affairs v Roberts (1993),[2] and proceeded on the basis that such activities “provide some advantage to Australia, whether commercial or otherwise” and “some objective benefit to Australia”, necessarily connoting “some public interest of Australia, even if of a general or non-specific character” and thus, “more than the private interests” of an applicant.[3] Deputy President McMahon stressed the public character of the activities to which subp 13(4)(b) refers in Re Ho and Minister for Immigration and Ethnic Affairs (1994).[4] Furthermore, the Deputy President stated that the discretion is not intended as an alternative method of complying with the requirements of subps 13(1)(d) and (e), but:
It is intended to allow some flexibility, in exceptional circumstances, when specific activities, which are the applicant’s substantial activities during specific periods can be demonstrated. The presence of the applicant in Australia for specific periods is one of the prerequisites to a grant of citizenship. It is not an optional requirement interchangeable with certain activities outside Australia. [5]
[2] 41 FCR 82.
[3] Ibid, at 87.
[4] 34 ALD 664, at 670.
[5] Ibid, at 671.
7. What can be discerned from the settled cases was discussed by Deputy President Purvis in Re Natu and Minister for Immigration and Multicultural Affairs [2006],[6] at paragraph 15:
[6] AATA 753
(a)
The discretion contained in s.13(4) of the Act is not intended to offer an alternative method of complying with s.13(1)(d) and (e) of the Act. It is intended to allow some flexibility in exceptional circumstances when specific activities which are the Applicant’s substantial activities during specific periods can be demonstrated (Re Ho and Minister for Immigration and Ethnic Affairs (1994) 34 ALD 664 at 671).
(b)
The presence of the Applicant in Australia for specific periods is not an optional requirement interchangeable with certain activities outside Australia (Re Ho (supra)).
(c)
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 (Minister for Immigration Local Government and Ethnic Affairs v Roberts (1993) 41 FCR 82).
(d)
The concept "activities beneficial to the interests of Australia" connotes some public interest of Australia even if of a general or non-specific character and means more than the private interests of the Applicant. The section requires some objective benefit to Australia (Roberts (supra)).
(e)
Benefit to both Australia’s interests and to private interests is permitted to coexist (Taechaubol and Minister for Immigration and Multicultural Affairs [2001] AATA 425).
(f)
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 (Taechaubol (supra)).
(g)
The overseas activities must be beneficial to the interests of Australia at the time when they are engaged in, not at some future time (Re McCarthy and Minister for Immigration, Local Government and Ethnic Affairs (1993) 30 ALD 447).
(h)
A proposal to engage in a project that might provide future benefits to Australia does not suffice (Liu and Minister for Immigration and Multicultural Affairs [1999] AATA 251).
(i)
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 (Re McCarthy (supra)).
(j)
The activities undertaken overseas must confer a benefit to Australian interests at the time they are being undertaken (Re Yiu and Minister for Immigration, Multicultural and Indigenous Affairs [2006] AATA 52).
8. Chapter 4 of the Australian Citizenship Instructions (ACI) issued by the Minister provides policy guidance on the application of discretions concerning the criteria for grant of citizenship.[7] However it is not necessary to resort to the terms of the ACI in order to conclude that Mr Sayed’s activities were of a private nature, for his own benefit or for the benefit of his prospective employer.
[7] See T3 folios 62-66; Department of Immigration and Citizenship, ‘Chapter 4: Grant of Australian Citizenship: Criteria for Grant’ in Australian Citizenship Instructions, 1 July 2005, ss 4.3.19 to 4.3.22 and 4.3.26 to 4.3.31.
9. The facts of Mr Sayed’s case are as follows. Mr Sayed has over 20 years experience in transportation consultancy, research, training, education and networking. He has an international reputation and is eminent in his field. Mr Sayed obtained a PhD in Transport Engineering and Operations from the University of Newcastle upon Tyne in 1991. His credentials and his Curriculum Vitae were not challenged and are accepted.[8]
[8] See Exhibit A1.
10. In December 2001, Mr Sayed was granted a Skilled Independent (Subclass 136) Visa. He travelled to Australia on 17 August 2002 with his wife and two children, but departed again on 25 August 2002.[9] Counsel for the Minister accepted that Mr Sayed has Australian permanent residence from the date his visa was activated on 17 August 2002, and I will proceed on that basis. Thereafter, Mr Sayed was employed as a Professor of Transport Planning at the King Faisal University, Saudi Arabia, until November 2005. During the period from 2002 to 2005, Mr Sayed undertook a variety of transport planning consultancy projects, including a traffic impact assessment for the (then) proposed Savola Hypermarkets in Dammam, Saudi Arabia, and development of local area action plans for Dammam, Qatif and Ras Tanura.[10] During this period Mr Sayed published seven academic research papers:[11]
[9] T7 folio 135.
[10] Exhibit A1, Curriculum Vitae, p2; T6 folio 107.
[11] T6 folios 104-106.
·Developing a Conceptual Model for Sustainable Management of Traffic Safety. Part 1: Methodology
·In-depth Statistical Analyses of Accident Databases. Part 2: A Case Study
·Framework for Assessing Traffic Impacts Generated by Megaplexes: A case Study of San Stefano Grand Plaza, Egypt
·Logistics Chain Analysis of Upper Egypt Wheat Milling Company: A Basis for Developing Efficiency Models for Transport Activities
·Reinventing Government Role in Transport Sector: The Way Forward
·Experts Judgement: A Basis for Developing Integrated Programs for Mitigating Traffic Problems in Mega Cities
·Developing a Generic Algorythm for Assessing Financial feasibility of build-Operate-Transfer Road Projects
He was appointed as a Programme Committee Member for the Transport and Traffic Safety stream within the 2004, 2005 and 2006 European Transport Conferences. In 2004 he was appointed to the editorial board of Advanced Transportation Study, a journal published by the University of Rome. Since 2004 Mr Sayed has reviewed papers presented to the international Journal of Logistics: Research and Application published by Taylor & Francis.[12]
[12] T6 folios 106-107.
11. On or about 20 May 2004, Mr Sayed received a verbal offer of employment as a Principal Transport Planner with SMEC. He signed and returned a written SMEC employment contract in June 2004.[13] However, he negotiated a delayed commencement to his employment and continued in employment at the King Faisal University. In fact he did not take up the appointment until 7 November 2005.[14] In the months prior to commencing his employment with SMEC, Mr Sayed agreed that his name could be used in tender documents and consultancy proposals. On taking up his appointment, Mr Sayed transferred his affiliations to SMEC,[15] and was instrumental in a number of tenders and consultancies for his employer. Much of Mr Sayed’s evidence concerned the value to SMEC following commencement of his employment in November 2005, of the skills, contacts and research he undertook during preceding months and years. That may be so, but it does not, in my mind, place him within the terms of the discretionary provisions.
[13] T1 folio 9.
[14] T1 folio 9.
[15] See Exhibit A1, document bundle ’11.’
12. It can be accepted that there is a public interest in transport planning and engineering in Australia. Thus, tangible benefits may accrue from activities in that area of interest. Mr Sayed is a professional transport planner with a long academic record and international reputation in this area. I do not doubt that his work is valued by his employer or that his employer has obtained tangible benefits from his employment. However, I am not satisfied that the activities in which Mr Sayed was engaged in the period from August 2002 to November 2005 resulted in any tangible public benefits to Australia during that period. In short, any benefit was prospective and directly related to the business of his prospective employer.
13. It is possible that indirect benefits of a public character may flow as a result of the employer’s business, in the form of improved transport sustainability for example. However, there is no evidence that any such benefit flowed contemporaneously. Furthermore, I am not persuaded by Mr Sayed’s submission that public benefit to Australia flows prospectively from the new ‘know-how’ or methodologies he developed, or from research he conducted prior to his arrival in Australia in November 2005. The products of Mr Sayed’s research efforts were published at large in the public domain. There is no evidence that he was commissioned by any Australian entity to undertake particular research in the years immediately preceding his arrival in Australia. Nor is there any evidence that the results of his research were taken up or utilised or that he was directly involved in activity to the benefit of any tangible Australian interest at the time. His consultancy work during this period was not in Australia and was devoid of any Australian involvement. Nevertheless, Mr Sayed maintains that he conducted research with the intention of increasing his ‘value’ to his prospective employer, in terms of ‘know-how’, skills and contacts that he would transfer on commencement. In Re Roberts, Einfeld J observed “if the person concerned was studying or using new techniques or materials with a view to introducing them to Australian construction… the benefits would be established”.[16] Even though these remarks imply that benefits may accrue prospectively, and one can accept that in certain circumstances such benefits may be appropriately considered as having accrued at the time, these observations are strictly obiter and are not binding. The ratio of the case is, it seems to me, is in the passage quoted at paragraph [6], above. The terms of the provision are cast in the present, in relation to the particular activities engaged in (see Re Yiu and Minister for Immigration and Multicultural Affairs [2006][17]). Furthermore, importantly, as Einfeld J made clear, there must be a nexus between the activities engaged in and the Australian public interest purportedly benefited. That case is not made out on the evidence before me. Something more than the private interests of Mr Sayed or his (then) prospective employer, is required.[18]
[16] Supra n 2, at 87.
[17] AATA 52, at paragraphs 21 to 24.
[18] See Re Natu, supra n 6, at paragraph 15; Roberts, supra n 2, at 87; and Re Ho, supra n 4, at 670.
14. There is no compelling evidence before me that any contemporaneous public benefit to Australia resulted from any activity in which Mr Sayed was engaged prior to his arrival in Australia in November 2005.
15. Thus, I am reasonably satisfied that the discretion is not properly preconditioned in this case.
16. Furthermore, the benefits that Mr Sayed says arose from his research and other activities in the period from August 2002 to November 2005 were not of a public character at the time or subsequently. At the time, any benefit asserted was intangible, remote, indirect and speculative in relation to any public interest of Australia. The benefits pressed by Mr Sayed may have held the promise of future benefit to SMEC and the future development of that corporation’s transport planning business, but that is not sufficient to enliven the discretion. The particular ownership of SMEC, and any public interest therein, does not compel a different conclusion on the facts and the evidence. Any public benefit that may have resulted from Mr Sayed providing data to Murdoch University (on request by Mr I. Cameron) is indirect, intangible and remote. Any public benefit that Mr Sayed asserts accrued from his training development activities prior to November 2005[19] was not manifest at that time. While Mr Sayed’s training activities may presently be beneficial to Australia any nexus to activities in which he was engaged before his arrival in Australia is indirect and intangible, and insufficient for present purposes.
[19] See Exhibit A1, document bundles ‘9’, ‘10’, ‘11’, ‘12’, and ’13.’
17. Mr Sayed sought to rely on the Australian Citizenship Instructions at paragraph 4.3.21,[20] and tendered many letters and documents concerning his reputation, recognition and standing in his field. Letters from Mr T. Hahn[21] and Mr M. Dunning,[22] who are both employed by SMEC at levels senior to Mr Sayed, concern the value of Mr Sayed’s research and training activities to SMEC, and confirm that SMEC has used Mr Sayed’s research papers and expertise in pursuing project and business development. That is perhaps not surprising as Mr Sayed is employed as a Principal Transport Planner by SMEC. Other correspondence, including a letter from Ms L. Scarlett, Conference Manager, Association for European Transport;[23] email communications with Dr A. Attiyah;[24] and the documents at Exhibit A1; are not evidence that any activities undertaken by Mr Sayed are recognised as “clearly beneficial to the interests of Australia”. The letter from Mr I. Cameron, Murdoch University, concerning data provided by Mr Sayed in 2004,[25] may imply a benefit. However, even if it did, the specific activity from which the benefit may derive is one in which Mr Sayed provided data that he had previously collected for other purposes. The specific activity of providing data is temporally insignificant in terms of Mr Sayed’s deferred presence in Australia for present purposes.
[20] Supra n 7.
[21] T1 folios 8, 9-11 and 12.
[22] Exhibit A1, document 15.
[23] T1 folios 14-15.
[24] T1 folios 16-18.
[25] Exhibit A1, document 14.
18. Mr Sayed explained why he applied for the grant of Australian citizenship before satisfying the requirements in the ordinary way. I note that Counsel for the Minister informed me that presently it is expected that Mr Sayed will satisfy these requirements in February 2008. Mr Sayed explained that Australian citizenship would permit him to travel on an Australian passport and to apply for appointments in the United Nations and the Department of Transport and Regional Services that were presently not available to him as a non-citizen. Having heard Mr Sayed’s submissions on this point, I am not persuaded that his circumstances are in any way exceptional to the extent that it would be appropriate to exercise the discretion in his favour, even if the preconditioning factors were made out, which they are not.
19. Thus, in conclusion, the decision under review is affirmed.
I certify that the 19 preceding paragraphs are a true copy of the reasons for the decision herein of Mr S. Webb, Member
Signed: Jane Gribble
AssociateDate of Hearing 22 June 2007
Date of Decision 5 July 2007
Representative for the Applicant Self
Solicitor for the Respondent Mr Tigiilagi Eteuati
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