Tan and Minister for Immigration and Multicultural and Indigenous Affairs
[2004] AATA 830
•6 August 2004
CATCHWORDS – CITIZENSHIP – grant of citizenship – whether engaged in activities beneficial to Australia – whether applicant likely to reside in Australia – decision set aside.
Australian Citizenship Act 1948 s. 13
Minister for Immigration, Local Government and Ethnic Affairs v Roberts (1993) 113 ALR 151
Re Ho and Minister for Immigration and Ethnic Affairs (1994) 34 ALD 664
Re Manbir Singh and Minister for Immigration and Multicultural Affairs [1998] AATA 329
Re Lusan and Department of Immigration and Multicultural Affairs [2000] AATA 687
Re Gulati and Minister for Immigration and Multicultural and Indigenous Affairs [2004] AATA 446
Re McCarthy and Minister for Immigration, Local Government and Ethnic Affairs (1993) 30 ALD 447
Drake v Minister for Immigration and Ethnic Affairs (1979) 2 ALD 60
Re Drake and Minister for Immigration and Ethnic Affairs (No. 2) (1979) 2 ALD 634
DECISION AND REASONS FOR DECISION [2004] AATA 830
ADMINISTRATIVE APPEALS TRIBUNAL )
) S2003/577
GENERAL ADMINISTRATIVE DIVISION )
Re SIEW WEE TAN
Applicant
AndMINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
Respondent
DECISION
Tribunal: Deputy President S A Forgie
Date: 6 August, 2004
Place: Adelaide
Decision:The Tribunal:
1.set aside the decision of the respondent dated 8 October, 2003; and
2.substitute a decision that the applicant be granted a certificate of Australian citizenship pursuant to s. 13 of the Australian Citizenship Act 1948.
S A FORGIE
Deputy President
ADMINISTRATIVE APPEALS TRIBUNAL )
) S2003/577
GENERAL ADMINISTRATIVE DIVISION )
Re:SIEW WEE TAN
Applicant
And:MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENIOUS AFFAIRS
Respondent
Tribunal: Deputy President S A Forgie
Place: Melbourne
Date: 16 September 2004
CORRIGENDUM TO DECISION [2004] AATA 830
The Tribunal amends its decision and reasons for decision published on 6 August 2004 as follows:
Decision
delete paragraph 2 of the decision; and
insert “2. Remit the matter to the respondent for reconsideration with a direction that the applicant has met the requirements in subsection 13(d), (e) and (j) of the Australian Citizenship Act, 1948.”
S A FORGIE
Deputy President
REASONS FOR DECISION
On 23 October, 2003, the applicant, Mr Siew Wee Tan, applied for review of a decision of a delegate of the respondent, the Minister for Immigration and Multicultural and Indigenous Affairs (“Minister”) dated 8 October, 2003. That decision was to refuse to grant Mr Tan Australian citizenship pursuant to s. 13 of the Australian Citizenship Act 1948 (“Act”).
At the hearing, Mr Tan was represented by his solicitor, Mr Riggall, and the Minister by Ms White. The documents lodged pursuant to s. 37 of the Administrative Appeals Tribunal Act 1975 (“T documents”) were admitted in evidence. Also admitted on behalf of Mr Tan were a letter dated 20 April, 2004 from the South Australian Government Representative Office to Mr Tan, Entrée Card to a State Dinner in March, 2003, a copy of the Certificate of Title relating to land owned by Ms Wai Ning Michelle Chan in Queensland, a copy of the first page of the passport of Ms Chan, a list of employees of Dover Fisheries, a statement of Mr Tan, a copy of a rates notice sent by Mosman Municipal Council in relation to property held by Tanasian Investments Pty Ltd (“Tanasian”) in New South Wales, company details relating to Tanasian, Mr Ted Kurauskas’s business card, a statement by Mr Ted Kurauskas, a letter dated 1 June, 2004 from Mr Richard Heyneman, of the Department of Primary Industries and Resources Australia, regarding Dover Fisheries and a statement of Mr Chris Madsen. Oral evidence was given by Mr Tan in support of his case together with Mr Edgar Roma Kurauskas, Mr Richard Trevor Heyneman and Mr Christian Madsen.
THE ISSUE
The issue in this case is whether Mr Tan is entitled to be registered as an Australian citizen pursuant to s. 13(1) of the Act. That raises two issues. The first arises under s. 13(4)(b)(i) in relation to ss. 13(1)(d) and (e). Has Mr Tan been engaged in activities that are beneficial to the interests of Australia so that the periods during which he has been doing that are treated as periods during which he was present in Australia as a permanent resident? The second arises under s. 13(1)(j). Is Mr Tan a person who is likely to reside, or to continue to reside in Australia, or to maintain a close and continuing association with Australia should he be granted a certificate of Australian citizenship.
BACKGROUND
Several aspects of the case were not in dispute between the parties. In light of that and on the basis of the evidence, I have found a number of facts which I will set out in the following paragraphs.
Mr Tan’s residency in Australia
Mr Tan applied for Australian citizenship on 11 July, 2003. At that time, he had been in Australia for 35 days during the two years immediately preceding the date of his application. In the five years immediately preceding that date, Mr Tan spent 101 days in Australia.
Mr Tan’s early life in Australia
Mr Tan was born on 25 August, 1962 in Singapore. He came to Australia to undertake his tertiary studies. He went first to Monash University where he completed a science degree. Mr Tan then moved to Queensland where he completed a PhD by research into the extraction of gold using bacterial aids. He believes that technique is now used by Mount Isa Mines. While studying in Queensland, he also taught at the University of Queensland.
On 28 August, 1987, Mr Tan obtained permanent residency. He was granted a subclass 155 – Five Year Resident Return Visa on 11 September, 1997. It was valid until 11 September, 2002 and was renewed on 2 September, 2002 for a further five years until 2 September, 2007.
Mr Tan met his wife, Wai Ning Michelle Chan, during his time in Queensland. She was born on 8 December, 1972. On 5 May, 1993, she became an Australian citizen. They married in Queensland on 15 October, l994 and have one child, Esther Song Wen Tan, who was born on 25 December, 1998. They are expecting another child. The family lives in Singapore. Esther, who is an Australian citizen, attends kindergarten and is enrolled in the Australian International School, which follows the New South Wales school curriculum.
Tai Say
Mr Tan’s father also obtained Australian permanent residency during the late 1980s. He established a factory at Kadina in South Australia to can abalone and leased it to an Australia company to run. He had also established a company in Singapore and an office in Malaysia. That company is called Tai Say Import & Export Pte Ltd (“Tai Say”). Mr Tan’s father died unexpectedly at the age of 56 leaving Mr Tan to accept responsibility for its continued operation. He left his work in Australia to do so.
Mr Tan is the director of Tai Say, which operates from Singapore. He has a 93% shareholding in that company with the remaining interests held by his brother and cousins. Mr Tan is a director. It employs 18 to 20 staff and is engaged in distributing foodstuffs.
Dover Fisheries – its operation
Dover Fisheries Pty Ltd (“Dover Fisheries”) was established in 1976 by the Fowler family and processes marine products. Mr Madsen has been involved with the company since 1983 and is now the Managing Director. On the basis of Mr Madsen’s evidence, I find that, in 1995, Mr Madsen, interests associated with Mr Tan and others purchased Dover Fisheries from the Fowler family. Shortly after the purchase was completed, Dover Fisheries faced very serious financial difficulty. Mr Tan and his family company contributed over $1m. Mr Tan is now the Executive Chairman of Dover Fisheries and his wife a Director.
In the main, Dover Fisheries cans, packages in heat sterilised vacuum packs or freezes abalone harvested in South Australia, Tasmania, Victoria and Western Australia. Dover Fisheries also produces abalone shells, abalone power and other abalone by-products. In addition, Dover Fisheries contract packs fish for approximately ten Australian companies and one New Zealand company. Those companies either market the product themselves or Dover Fisheries buys it from them. It is approved by the Australian Quarantine and Inspection Service (“AQIS”) to AQA standard and is also a quality endorsed company certified to international standards ISO 09002 and ISO 9001/2000.
Dover Fisheries does not own quota permitting it to harvest the abalone itself and must purchase it from divers in those States. Although it has a 6% share in the Streaky Bay Abalone Farm, it is competing in the market place against processors who hold quota and so do not have to purchase it, or all of it, from divers. In order to be competitive, it has to be efficient and it uses its margin for research instead of giving it back to its shareholders. As part of its research, Dover Fisheries has developed the heat sterilised vacuum packs that enable the customer to see and feel the product before purchasing it. It comprises five layers that prevent oxygen from permeating the product. Competitors have now adopted the pouch pack. Dover Fisheries has striven to be at the forefront of technology and, with the help of a government grant, is now developing a rigid can made out of specialised plastic. As part of its being competitive, Dover Fisheries also keeps talking with the buyers and building relationships with them. It has been given export awards by the Hong Kong Bank and the Australian Institute of Export and has won research grants from the Australian government.
Dover Fisheries is based in South Australia and has an office in Singapore and another in Hong Kong. On its staff are 15 permanent staff and 40 casual staff. Positions include factory and process workers, fishermen, packers and office workers. Dover Fisheries pays company tax and has paid $790,348 for that tax in the years from 1998 to 2002. The earnings of Dover Fisheries since between 1998 and 2002 and the amount received from sales in its export markets in Asia, Japan, the United States of America (“USA”) and Europe have been:
| Year | Total Sales | Export Sales | % Export Sales |
| 1998 | 19,571,129 | 13,935,502 | 71.2% |
| 1999 | 18,292,218 | 13,546,858 | 74.1% |
| 2000 | 21,405,126 | 18,701,609 | 87.4% |
| 2001 | 23,228,711 | 25,297,704 | 89.6% |
| 2002 | 23,938,092 | 21,094,768 | 88.1% |
(Exhibit E, paragraph 23)
Dover Fisheries’ main competitors are located in Australia, South Africa, New Zealand and Mexico. Mexican abalone are considered the best and Mexico is an aggressive marketer in the Asian region. It is important for Dover Fisheries to have a good relationship with its customers if it is to be able to compete against such a competitor and to retain its margins.
Dover Fisheries – its ownership and management
Shares are held in Dover Fisheries by: Mrs Chan (52%), Mr Tan’s family company (15%), a Singapore investor (15%), Mr Lou (Taiwanese investor) (2.5%), Streaky Bay Abalone Farm (5%), a diver (7%), Mr Lee (Singapore investor) (3%) and Mr Madsen (0.5%).
Currently, Dover Fisheries has a Managing Director responsible for the day to day running of the business. That is Mr Madsen. As the Executive Chairman, Mr Tan provides the general direction for him to follow. As well as English, Mr Tan speaks both Mandarin and Cantonese together with several dialects. Cantonese is the language of trade in southern China. Dover Fisheries also has a Marketing Manager, Mr Guangyi Fan, who resides in Adelaide and who is a Chinese born Australian citizen. He looks after the customers in Japan, mainland China and in Taiwan and speaks both English and Mandarin. When he moves to Australia to live, Mr Tan intends that Mr Fan will take over part of his customer base in Asia.
Property of Mr Tan, his family and associated entities
I have already found that Mrs Chan owns 52% of Dover Fisheries and Tai Say owns 15% while Mr Tan has a 93% ownership of Tai Say. I also find that Mrs Chan owns a house property in Brisbane. That house is not rented out but is used by Mr Tan and his family and by his wife’s parents from time to time.
I also find that Tanasian owns a commercial property comprising half a block in Mosman, a suburb of Sydney. Of the 100 shares issued in Tanasian, I find that Mr Tan owns 20 and his late father’s estate owns 40.
Mr Tan owns a house in Singapore and the remaining property in that country is in his wife’s name. They also own an apartment in Paris but have never seen it. They bought it before the introduction of the Euro when the price was quite low and they were exempt from value added tax.
LEGISLATIVE FRAMEWORK
Part III of the Act sets out the circumstances in which a person acquires Australian citizenship. In general terms, Australian citizenship may be acquired by birth, adoption or descent or by a grant. In this case Australian citizenship acquired by a grant is relevant and that is the subject of s. 13. It provides that, subject to the section itself and provided a person applies in accordance with an approved form:
“… the Minister may, in the Minister’s discretion, … 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.”
Sections 13(2) to (8) qualify the operation of s. 13(1). In particular, s. 13(4) qualifies the operation of ss. 13(1)(d) and (e) relating to the period during which the person has been a permanent resident in Australia. Of relevance in this case is s. 13(4)(b)(i):
“(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”.
THE EVIDENCE
Mr Tan’s work on behalf of Dover Fisheries
Mr Tan said that he had developed personal relationships with overseas purchasers of Dover Fisheries products. This involves a lot of personal contact, face to face meetings and discussion as well as a lot of dining and wining. Some of the people with whom he has developed these relationships are customers inherited from his father’s company in Singapore, Tai Say, and some were Dover Fisheries’ own customers. A lot of those who purchase from Tai Say also purchase abalone.
Mr Tan said that he currently spends two weeks out of every four travelling away from Singapore. He visits Indonesia, Malaysia, mainland China, Taiwan, Japan and Hong Kong. When he is travelling, he tries to meet as many people as possible. If he were in Hong Kong, for example, he would meet a number of people, whom he named, important companies and representatives of Maxim’s Restaurants, which is a very big chain of restaurants in Hong Kong and south China. He would also visit supermarkets.
Mr Tan said that personal relationships in Asia are very important in business. Buyers like to know the person with whom they are dealing. Furthermore, they like to know the person as a friend and to know his family. A lot of time needs to be spent with them. There are so many people from whom they could buy so it is important to have that relationship with them.
Mr Tan said that he would receive up to 30 emails each day from Mr Madsen. He starts early so that he is working when work starts in Australia and finishes at 11.00 or 11.30 pm. At the moment, he works for both Tai Say and for Dover Fisheries. Selling abalone, he said, takes a lot more work as it takes more work to sell than to buy, which is his task for Tai Say on his trips. When he is buying, it is those who sell who have to do all the talking and not he. In most instances, those to whom he sells and from whom he buys are in the same group of people. An exception to that are the restaurant owners. They are not trying to sell him anything but he wants them to purchase abalone. Mr Tan estimated the division of his labour between Tai Say and Dover Fisheries as 40:60.
Mr Tan believes that he needs to be in Australia as that is required for the day to day operations of Dover Fisheries. Were he to move to Australia, Mr Tan said that he would pass a large part of his responsibilities in Asia to the Marketing Manager of Dover Fisheries. That is so even though the Marketing Manager does not have his personal relationships with the customers. He would see himself as then travelling for a week each quarter. The Marketing Manager, Mr Fan, would maintain the personal relationships in between his visits. He is already undertaking some of the visits.
Mr Tan’s activities in promoting Dover Fisheries
Mr Tan said that he promotes Australia as a good place to invest and points to his success. Two whom he has encouraged have ultimately invested in Australia. One has invested in property and the other bought a fish farm in Tasmania.
Mr Tan said that he has received recognition for his role in Dover Fisheries and his promoting South Australia as a consequence. That has come in the form of his being invited, for example, to a State Dinner on 21 March, 2003 and to the Clipsal State Dinner and Car Racing Events in Adelaide in 2004. The invitation to the Clipsal State Dinner was addressed to him as the Managing Director of Tai Say.
Mr Kurauskas has been a consultant since 2003 but was employed during the previous eight years as a senior business manager with the South Australian Department of Industry and Trade and its predecessor, the Economic Development Department (“Department”). That Department’s role is to promote South Australian industry and exports and to encourage external investment. It has offices in China, Singapore and Hong Kong and has assisted Dover Fisheries in promoting its export activities.
Mr Kurauskas said that his role was to promote South Australia’s exports and to gain international investment for the State. He had a particular focus on aquaculture in the Asian market. South Australia has a good reputation in the Asian market for its aquaculture products. In assisting Dover Fisheries, Mr Kurauskas said that he had come to know Mr Madsen and Mr Tan well. He regards them as key players in aquaculture production and at the leading edge in packaging abalone. Dover Fisheries has expanded with the investment of further capital.
Mr Kurauskas described Dover Fisheries as:
“6. … an important South Australian value added export business which has derived substantial success and increase in size and capacity as a result of marketing success in Asia.
…
8. … It also set an example for potential investors in South Australia from the Asian region and Dover was always upheld as a good case study for successfully investing in South Australia. … ” (Exhibit I, paragraphs 6 and 8)
Mr Kurauskas also said that, during his time with the Department, Mr Tan “… was deemed by the State Government as a significant asset to South Australia. He was seen to add value to and contribute a good commercial benefit to Australia” (Exhibit I, paragraph 10) He also said in giving his evidence that South Australia is regarded as the “rust belt State”. Therefore, it is important to promote its aquaculture as often as it can. Therefore, the Department instructed its Singapore office to assist Mr Tan in the promotion of abalone. Dover Fisheries is one of a cluster of companies engaged in aquaculture in South Australia but it is a flagship. Dover Fisheries is relevant to the Department’s work in promoting South Australia as success breeds success, Mr Kurauskas said. It is the company that the Department likes to show to other interests in Asia. The Department underpins its success by supporting its marketing. Only those who are in the top 50 value adding companies to South Australia are invited to the Clipsal State Dinner.
The Department recognised that abalone is a difficult market; it needs both capital and expertise. The South Australian government can assist those engaged in it through opening doors regarding licences and resolving environmental issues, Mr Kurauskas said. The Department’s role is to ensure that those engaged in the market can continue to value add to the abalone.
Mr Kurauskas said that personal relationships are very important in the Asian market. They are fostered over many years but it is understood that people have to move on. A father hands on to his son and it is accepted that a person who is at the top of a company has to hand on to someone, such as a Marketing Manager, if he cannot hand it on to his son. The person introduces the new person, who is asked to take the responsibility and the culture is that the new person will be respected because he is introduced by that person.
Mr Heyneman is the Manager of the Sector Development, Food South Australia in Primary Industries and Resources SA and the Office of Economic Development. He wrote in a letter dated 1 June, 2004:
“The abalone industry is an important part of SA’s aquaculture industry and Dover Fisheries has been a significant part of the industry development, being a long established processor in South Australia and exporting over 85% of its output, employing 42 people and with sales of approximately $30 million.
The company has a very close working relationship with a number of abalone businesses as Dover contract processes their requirements as well. This arrangement is important for the industry, as Dover provides a full processing, warehousing packaging/labelling and despatch service for the abalone farmers and growers.
Dover has demonstrated industry leadership through innovative projects and responding to changing market demands and opportunities. This has included the identification of new packaging and new product development opportunities for target markets, notably Hong Kong and China, which are very important markets for abalone.
Dover Fisheries have made a significant capital investment to develop the new product range and the innovative clear plastic pack and received a Commonwealth Food Grant (New Industries Development Program) to assist in the development and commercialisation.
The company have been one of the leaders in the South Australian seafood industry, working strategically for company growth, have strong relationships within the supply chain, not only growers, but packaging, transport and allied industries.
With Dover’s position to develop new products and market segments, they are improving the financial and long-term sustainability for the abalone farmers. The co-operate openly and support both the industry and state development initiatives to compete in export markets.” (Exhibit J)
Mr Madsen said that, without the injection of some $1m of capital shortly after Dover Fisheries was purchased from the Fowler family, Dover Fisheries would not be operating today.
Mr Madsen underlined the importance of relationships in doing business. As abalone is a Chinese food and historically used for medicinal purposes, the market for abalone is to those of Chinese descent. In that market, relationships come first and business second, he said. He and Mr Tan had first travelled together in Asia in 1995. Mr Madsen has noticed that people in Asia had a very high regard for Mr Tan’s father and who paid that same regard to Mr Tan. Many of the favours owed to his father are repaid to him. This has the effect, Mr Madsen said, of opening doors to Mr Tan that would not have been opened to him as a “gweilo”, or “white face”. Mr Tan’s contacts have led to a new market being opened to them in France even though it is a limited market due to the high standards that have to be met and the number of non-tariff barriers. The beneficial effect for Dover Fisheries’ exports are substantial as a result. There is a consequential maintenance and growth of employment at Dover Fisheries as well as its suppliers.
The future management of Dover Fisheries
Mr Madsen said that he will be 67 years of age in December, 2004 and wishes to retire from Dover Fisheries. It is his intention that Mr Tan take over the day to day operations and that the position of Managing Director is dispensed with. If Dover Fisheries is to run efficiently, Mr Madsen said, Mr Tan will need to spend more time in Australia. He is progressively handing over more and more local control to Mr Tan. Mr Madsen described his present position as requiring him to be present to make decisions regarding all aspects of the business.
Mr Madsen described Mr Tan as forward thinking and young. He keeps up to date with the latest food trends and has pointed Dover Fisheries in new directions for marketing opportunities and product ranges. It was Mr Tan who said that the Australian quality standards met by the company were not internationally recognised. Meeting international standards has proved very profitable. He now tells them that they have to establish that they not only meet international standards but that they produce their products responsibly.
Mr Madsen regards Dover Fisheries’ steady growth in its exports as being due in a considerable degree to Mr Tan’s efforts. It is time for Mr Tan and a younger team to take over from him. Mr Madsen said that he and Mr Tan are in constant contact by means of telephone calls, facsimile messages and emails. He copies everything to Mr Tan and, over the next six months, he will be in even greater contact. Mr Tan also keeps him constantly informed about what is happening with regard to the business in Asia. That information includes that about new products, markets, labelling, ingredients and consumer complaints. Mr Madsen said that he would step back into the role of consultant at the end of the year.
Mr Madsen said that there were tax issues determined by whether or not Dover Fisheries was regarded as an Australian or a foreign company. Until recently, he was the only Australian director. There are now two but there needs to be an Australian at the top of the company.
Intentions as to the future
Mr Tan said that he and his family plan to live in Adelaide permanently so that they can live without the high pressures of life in Singapore. They have not yet purchased a house in which to live but are looking for a suitable property. His daughter, Esther, is enrolled in the Australian International School so that she will fit easily into the Australian education system when they move to Australia. Esther suffers from asthma when in Singapore but does not when she is in Australia. He said that his wife wants to live in Australia because the lifestyle is quite different from that in Singapore.
In cross-examination, Mr Tan agreed with Ms White that he intended to live in Australia once his overseas’ interests had been looked after. He is talking to a man who is interested in becoming a partner in Tai Say and who would take over the running of the business. Those discussions are at quite an advanced stage. Mr Tan would be left with an interest in the business but his role in it would be very small. That would be important so that Tai Say’s customers would know that he is a part of the company. He would have to spend some time in the region in order to maintain his profile but would coordinate that with the travel he undertakes for Dover Fisheries. The remaining work that he now does for Tai Say can be undertaken by his new partner.
Mr Tan said that he has maintained friendships in Australia and named those with whom he worked and studied. He maintains his contact with them through letters, telephone calls and visits. Mr Tan’s mother lives in Singapore as do his sister and her husband. Another brother lives in Thailand. Were he to live in Australia, he would continue to visit them but just not as often.
CONSIDERATION
Is Mr Tan engaged in activities beneficial to the interests of Australia?
I am satisfied that Mr Tan does not meet the residency requirements in ss. 13(1)(d) and (e). That raises the issue whether, in accordance with s. 13(4)(b)(i), Mr Tan has been engaged in activities considered beneficial to the interests of Australia. If he was, then a further issue arises under that provision. It is whether the discretion should be exercised to recognise the period for which he was engaged in those activities as a period during which he was present in Australia as a permanent resident and be counted towards those periods set out in ss. 13(1)(d) and (e).
Beginning with the first issue, the expression “beneficial to the interests of Australia” have been considered by Einfeld J in Minister for Immigration, Local Government and Ethnic Affairs v Roberts (1993) 113 ALR 151 where he said:
“ It seems to me that the term ‘activities beneficial to the interests of Australia’ means something in the nature of activities which provide some advantage to Australia, whether commercial or otherwise. The concept necessarily connotes some public interest of Australia, even if of a general or non-specific character, and means more than the private interests of the respondent. The section requires some objective benefit to Australia.” (at 156)
Deputy President McMahon said of s. 13(4)(b) in Re Ho and Minister for Immigration and Ethnic Affairs (1994) 34 ALD 664 that the:
“… context of the Act indicates that … [it] is intended to ameliorate the application of s 13(1) but only in exceptional circumstances. As his Honour has pointed out, the exception must be the engaging in some activity of a public interest nature. …” (at 670)
Later, he explained:
“(27) The paragraph is intended to provide some flexibility in the calculation of the periods referred to in s 13(1)(d) and (e). It is unlikely that in the application of the minister’s discretion, a period may be treated as a period of presence in Australia only when the applicant is engaged for 24 hours per day, seven days per week in activities beneficial to the interests of Australia. It is more likely that the activities referred to should be the substantial activities of the applicant for limited periods, being intervals intended to fill in the gap between actual presence in Australia and the requirements for presence set out in the statute. The discretion contained in s 13(4) is not intended to offer an alternative method of complying with s 13(1)(d) and (e). It is intended to allow some flexibility, in exceptional circumstances, when specific activities, which are the applicant’s substantial activities during specific periods, can be demonstrated. The presence of the applicant in Australia for specific periods is one of the prerequisites to a grant of citizenship. It is not an optional requirement interchangeable with certain activities outside Australia.” (at 670-1)
Deputy President McMahon went on to conclude that Mr Ho had engaged in commercial activities designed to promote the sales of one or two companies. Without something more of a public character, he did not regard those activities as being activities beneficial to the interests of Australia. Einfeld J had formed a similar view of Mr Roberts’ activities as a rigger in Brunei in Minister for Immigration, Local Government and Ethnic Affairs v Roberts (at 156-7) (and see also Re Manbir Singh and Minister for Immigration and Multicultural Affairs [1998] AATA 329 (Deputy President McDonald), Re Lusan and Department of Immigration and Multicultural Affairs [2000] AATA 687 (Senior Member Ettinger) and Re Gulati and Minister for Immigration and Multicultural and Indigenous Affairs [2004] AATA 446 Senior Member Sassella). In Re McCarthy and Minister for Immigration, Local Government and Ethnic Affairs (1993) 30 ALD 447, Deputy President McMahon considered Mr McCarthy’s work as a structural engineer in Brunei with a subsidiary of an Australian company. Mr McCarthy’s employer had written to explain the relevance of his expertise in winning three substantial projects in Asia. Deputy President McMahon concluded:
“(11) There are a number of reasons why it must be said that these facts can not be regarded as evidence that the applicant was engaged in activities beneficial to the interests of Australia. Firstly, the applicant says that Australia’s offshore oil industry will benefit only upon his return. The statute requires the activities to be beneficial at the time at which the applicant is engaged in them. Secondly, it is claimed that his experience should assist in obtaining further consultancy work. These claims, even if they could be supported, would not bring the applicant within the operation of the subparagraph. The legislation requires an applicant to be engaged in activities beneficial to Australia. In his case, his activities may provide a future benefit which is intangible. The fact that the three substantial projects referred to in the second letter are to be carried out in the future by the applicant’s company is not relevant. What is relevant is whether between 13 May 1989 and 11 July 1991 the applicant was engaged in the beneficial activities. One calculates back from the date of the application in determining whether residence should be deemed to be residence through the exercise of the minister’s discretion. Thirdly, having regard to the observations of Einfeld J in Roberts, the claim that the applicant’s employer has enhanced the reputation of its Australian parent company, and Australian companies in general, must be regarded as falling short of demonstrating activities in which the applicant was engaged that were beneficial to the interests of Australia. Furthermore, having regard to the observations of Senior Member Gibbs in Re Tsui (1991) 24 ALD 236, it might also be said that such activities are so remote, indirect and speculative in relation to the beneficial interests of Australia that they could not be taken into account.” (at 448)
The meaning of the expression “beneficial to the interests of Australia” is one thing but it is interesting to note that s. 13(4)(b)(i) is not concerned with activities that are beneficial in an objective sense. They are activities that “the Minister considers beneficial”. Therefore, the element of discretion is introduced into the assessment. Australian Citizenship Instructions (“ACI”) have been prepared to provide guidelines regarding the exercise of the Minister’s discretion under the Act including s. 13(4)(b)(i):
“4.3.19 … the discretion will usually only be exercised if the applicant is in Australia and was either:
required to work overseas by a Federal, State or Territory Department, semi-government authority or private employer; or
self-employed and frequent travel abroad was essential to the successful operation of their business, whether for an extended period or on a regular short-term basis; or
engaged overseas in activities of a social, cultural, economic or political nature which are clearly beneficial to the interests of Australia and are widely recognised as such either by:
-the Australian community generally; or
-prominent persons associated with the applicant’s field of endeavour (for example, people engaged in aid programs, artists and entertainers of world standing).
4.3.20If the applicant is overseas, the discretion will normally not be exercised.”
There is no evidence as to the provenance of the ACI but I have assumed for the purposes of this case that they have been cleared by the Minister. In accordance with the principles set out in Drake v Minister for Immigration and Ethnic Affairs (1979) 2 ALD 60 at 70 per Bowen CJ and Deane J and at 80 per Smithers J and Re Drake and Minister for Immigration and Ethnic Affairs (No. 2) (1979) 2 ALD 634 at 640-1 (Brennan J, President), policy cleared at Ministerial level is a matter to which I give considerable weight in exercising the discretion under s. 13(4)(b)(i). I am also mindful of the warning given by Davies J as President of the Tribunal when he said of policies developed by the Minister:
“… He has the experience and advice and the power to formulate such policies and he is able to take responsibility in Parliament should the policies be found wanting.
But to say that, is not to say that the Tribunal ought to treat policy as more than policy. Policy is not a legislative prescription and, though in many cases it will be appropriate to apply policy in all or almost every case, there are circumstances where it is not appropriate to decide a matter merely by reference to a policy which has been laid down.” (Re Dainty and Minister for Immigration and Ethnic Affairs (1987) 6 AAR 259 at 266)
The guidelines are carefully drafted so that they do not purport to be a legislative prescription and allow due consideration to be given to each applicant’s circumstances. They certainly state when the discretion will and will not normally be exercised but their choice of the word “normally” allows for the case that is outside the ordinary.
In this case, I am satisfied that Mr Tan’s activities have been beneficial to the interests of Australia in the two and five years immediately preceding his application for citizenship lodged on 11 July, 2003 as they are the years referred to in ss. 13(1)(d) and (e) respectively. I will start, though, with his activities in 1995. It was then that Mr Tan’s wife and family company purchased a 67% interest in Dover Fisheries. Shortly after that purchase, Mr Tan contributed $1m to the company. I accept Mr Madsen’s evidence that, had Mr Tan not done so, Dover Fisheries would not have been able to continue to operate. Had it not been able to operate, it would not employ approximately 15 permanent and 40 casual staff. At the time, Mr Tan’s contribution was of considerable benefit to the people of South Australia for, although some may regard it has having only a small number of employees, every job is important. That is particularly so in South Australia where employment opportunities can be few and far between. To use Mr Kurauskas’ words, some describe it as the rust belt State. Maintaining the operation of Dover Fisheries at the time also had a flow through effect to other persons.
Mr Tan’s injection of capital occurred well outside the five year period of s. 13(1)(e) but it showed his commitment to Dover Fisheries. I am satisfied that his activities in the subsequent years up until 11 July, 2003 have been directed at maintaining the viability of Dover Fisheries. As I am satisfied on the basis of Mr Madsen’s evidence that it operates on a very low 2% margin, I am also satisfied that it has to maintain its competitive edge by being innovative and by maintaining and developing its markets. I am satisfied that Mr Tan has been an essential part of Dover Fisheries’ maintaining its competitiveness and, with the exception of 2002, steadily increasing its export earnings since 1998.
Looking first at its markets, I am satisfied that its main market for abalone is among those of Chinese ancestry. This means that Asia is a major market for its products. I am also satisfied on the evidence of Mr Madsen and Mr Tan that personal relationships are at the heart of the way business is done in Asia. I accept that Mr Tan was able to take advantage of a strong network of personal relationships nurtured by his late father when he operated Tai Say and has been able to build on those. Certainly, I accept that many that he relies on in relation to Dover Fisheries are common to Tai Say but that does not detract from the fact that he has used them to the advantage of Dover Fisheries. I accept Mr Madsen’s evidence that many people to whom Dover Fisheries has been introduced would not have been available to it without Mr Tan’s introduction and his fostering the relationship.
In so far as innovation is concerned, I again accept Mr Madsen’s evidence that Mr Tan has been at the forefront of the company in taking it in new directions to become more competitive in the international market. The projects have been ongoing. They included obtaining recognition that Dover Fisheries met international quality standards and leading their competitors in packaging; first with the plastic pouch for abalone and now with the rigid plastic can.
Certainly, Mr Tan’s activities benefit Dover Fisheries, which is privately owned. They benefit Mr Tan, through the interest he holds in the family company and they benefit his family as his wife benefits from the improved financial position of Dover Fisheries. I am satisfied though, that Dover Fisheries’ continuation, improving export sales exceeding $21m in 2002 and showing improvement over the last five years, benefit South Australia. Dover Fisheries provides employment to South Australians and its improved marketing, quality standards and product packaging ensures that it continues to be a viable competitor and so continue to provide that employment. Those who are employed are then able to make their own contribution to the economy. The benefit to South Australia and so to Australia is not indirect or intangible but direct and immediate. They are benefits that are recognised by the State Government both at the bureaucratic level but also at the highest level by the Premier himself. That comes in the form of invitations to State functions including the Clipsal State Dinner at which only the leading 50 value adding companies are invited. I am satisfied, therefore, that Mr Tan’s activities are beneficial to the interests of Australia.
That brings me to the second issue and that is whether the discretion inherent in s. 13(4)(b)(i) should be exercised in favour of Mr Tan. He was a resident of Australia for approximately ten years when he was studying. I find on the basis of his evidence that he returned to Singapore on the death of his father. It was not part of his plan to do so as he was working for Mount Isa Mines at the time and was following a path very different from that of working in Tai Say. His wife did not wish to leave Australia but his father’s death was premature and unexpected and so Mr Tan’s life took a very different course from that he had set out upon. These matters are not directly relevant but they do show a commitment to Australia in Mr Tan’s earlier days in Australia. He has continued to show that commitment to Australia while taking on his responsibility to his father’s company, Tai Say even though he has spent quite short periods of time in Australia over the years. Since 1995, he has shown his commitment by devoting his time to both Tai Say and Dover Fisheries and working long hours to do both. On the basis of his evidence, I am satisfied that he devotes more than half of his time to Dover Fisheries and is making arrangements to divest himself of the major part of his responsibilities to Tai Say and devote himself more fully to Dover Fisheries by the end of 2004. That is a move which I find on the basis of Mr Madsen’s evidence and that of Mr Tan has been planned for some time and will occur with Mr Madsen’s retirement in December, 2004.
In view of these matters, I consider that the discretion should be exercised in favour of treating Mr Tan’s activities in the past two or five years as the case may be as periods during which Mr Tan was present in Australia as a permanent resident. I do not consider it necessary to select specific periods within those two or five years as I am satisfied that Mr Tan’s activities have been continuous over the period. Therefore, I am satisfied that, by virtue of the operation of s. 13(4)(b)(i), Mr Tan should be treated as fulfilling the requirements in ss. 13(1)(d) and (e).
Is Mr Tan likely to reside in Australia or to maintain a close and continuing relationship with Australia?
As Mr Tan is clearly not residing in Australia at the date of the hearing, I have not considered whether he is likely to continue to reside in Australia within the meaning of s. 13(1)(j) of the Act. Is he “likely to reside in Australia”? Section 13(1)(j) does not specify a time frame but in Re Ho and Minister for Immigration and Ethnic Affairs, Deputy President McMahon said that the words “likely to reside” cannot mean:
“… ‘likely to take up residence in 18 months or two years time’ or ‘likely to reside sometime 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.” (at 671-672)
As Ms White submitted, Mr Tan did say that he intended to live in Australia once his overseas business interests could be managed by a competent successor and that he intended to spend more time in Australia as his business commitments allow. I also accept that Mr Tan and his wife have spent very little time in Australia. Since their marriage in October, 1994, she has spent approximately 236 days with her last visit ending 24 December, 2003.
There is, however, further evidence. That lies partly in Mr Tan’s own evidence. His discussions with a person to come into partnership with him in Tai Say are well advanced. It is his plan that he be left only with a small percentage in the company. Tai Say, I am satisfied, represents his business interests overseas other than those associated with Dover Fisheries. As far as Dover Fisheries is concerned, I am satisfied on the basis of the evidence of both Mr Tan and Mr Madsen that they are working towards Mr Madsen’s handing day to day control of the company to Mr Tan at the end of 2004. Mr Madsen has been with the company over 20 years and he is coming to the end of his 67th year. I am satisfied that he wants to move from Dover Fisheries and to leave it to a younger man with a younger team to take it forward. Mr Tan, I am satisfied, wants to accept that responsibility. He is a man who owns, or whose family owns, property in Singapore but I am also satisfied that he seeks a different life for himself and his family. He is making arrangements to divest himself of the majority of his interest in Tai Say and the majority of his responsibilities in relation to it. He has placed his daughter in the Australian International School in Singapore so that she will be able to slot easily into Australia. That could be simply to take advantage of the Australian education system but, taken with Mr Tan’s work with Dover Fisheries and the acquisition by his family and Tanasian of property in Australia, I find that he has done so in order to make easier her transition to Australia. He and his wife are looking to purchase a house in Adelaide as part of the family’s transition.
I find on the basis of Mr Tan’s evidence that he would have to visit Singapore from time to time to visit relatives and presumably to act as a consultant to Tai Say and would have to visit other countries on behalf of Dover Fisheries. I am satisfied on the basis again of the evidence of Mr Madsen and of Mr Tan that the majority of the travel to Asia on behalf of Dover Fisheries would be conducted by its Marketing Manager, Mr Fan. Mr Tan would only visit for a week or so each quarter.
Taking all of these matters into account, I am satisfied that Mr Tan is likely to reside in Australia were he granted a certificate of Australian citizenship. That means that he satisfies s. 13(1)(j) and I do not need to consider whether Mr Tan is likely to maintain a close and continuing association with Australia. I note, however, that I consider that he is likely to do so. His history has been one of a close association and his move towards taking on even greater responsibility for Dover Fisheries and its day to day operations and his arrangements for his family and their interests to gain further property in Australia as well as their intention to live and preparations to carry that intention out shows that he is likely to maintain a close and continuing association with Australia.
For the reasons I have given, I:
1.set aside the decision of the respondent dated 8 October, 2003; and
2.substitute a decision that the applicant be granted a certificate of Australian citizenship pursuant to s. 13 of the Australian Citizenship Act 1948.
I certify that the sixty four preceding paragraphs are a true copy of the reasons for the decision herein of
Deputy President S A Forgie
Signed: .....(sgd. R. Crook).......................
R. Crook Associate
Date/s of Hearing 2 June, 2004
Date of Decision 6 August, 2004Counsel for the Applicant Mr D. Riggall
Solicitor for the Respondent Ouwens Lawyers
Solicitor for the Respondent Ms C. White
C/- Sparke Helmore
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