Tan and Minister for Immigration and Multicultural and Indigenous Affairs
[2003] AATA 695
•24 July 2003
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2003] AATA 695
ADMINISTRATIVE APPEALS TRIBUNAL )
) No V03/283
GENERAL ADMINISTRATIVE DIVISION ) Re POH CHUAN TAN Applicant
And
MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
Respondent
DECISION
Tribunal Mrs Joan Dwyer, Senior Member Date24 July 2003
PlaceMelbourne
Decision The Tribunal sets aside the decision under review and remits the matter to the respondent for reconsideration in accordance with the directions:
(i) That under s 13(4)(b)(i) of the Australian Citizenship Act 1948 (“the Act”) the period from June 2000 to 27 March 2002 is to be treated as a period during which Dr Tan was present in Australia as a permanent resident; and
(ii) Accordingly Dr Tan satisfies the requirements of s 13(1)(d) and (e) of the Act.
(Sgd) Joan Dwyer
Senior Member
CITIZENSHIP – whether residence requirements for Australian Citizenship are satisfied – applicant not present in Australia for periods specified in s 13(1)(d) and (e) – whether engaged in activities while outside Australia that the Minister considers beneficial to the interests of Australia – activities in Singapore enabled Australian company to win order for Telstra and Reach – its international subsidiary – in relation to billing of international telecommunications systems – enhanced efficiency and competitiveness of Australian Telecommunications network – relevance of government ownership of Telstra – decision set aside
Australian Citizenship Act 1948 s 13
Minister for Immigration, Local Government and Ethnic Affairs v Roberts (1993) 41 FCR 82; 29 ALD 656
Re Kao and Minister for Immigration and Ethnic Affairs (1993) 30 ALD 916
Re Fraser and Minister for Immigration, Local Government and Ethnic Affairs (AAT Decision No S91/205, 15 October 1991)
Re Chiu and Minister for Immigration and Multicultural and Indigenous Affairs [2002] AATA 604
Re McCarthy and Minister for Immigration, Local Government and Ethnic Affairs (1993) 30 ALD 447
Re Tsui and Minister for Immigration Local Government and Ethnic Affairs (1991) 24 ALD 236
REASONS FOR DECISION
24 July 2003 Mrs Joan Dwyer, Senior Member 1. This is an application by Dr Tan for review of a decision of a delegate of the Minister for Immigration and Multicultural and Indigenous Affairs ("the Minister"), made 3 February 2003 refusing to grant him Australian citizenship. The point in issue is whether during certain periods when he was not present in Australia, Dr Tan was “engaged in activities . . . beneficial to the interests of Australia”.
2. Dr Tan appeared and gave evidence at the hearing. Mr Tim Sweeney, the Senior Program Manager with Hewlett-Packard (“HP”) Australia also gave evidence on his behalf. Ms J Greaves, a solicitor with Blake Dawson Waldron appeared for the Minister. The Tribunal had before it the documents ("T documents") lodged pursuant to s.37 of the Administrative Appeals Tribunal Act 1975 and the exhibits tendered during the hearing.
BACKGROUND
3. I make the findings of fact set out in the following paragraphs.
4. Dr Tan was born in Malaysia. He came to Australia as a student in early 1979. He did his VCE in Melbourne and then studied Engineering at Melbourne University. He graduated with a Second Class Honours degree in 1984. In 1985 he started a Masters degree at Monash University. After a short time he converted to a Ph.D and received his Ph.D in 1988.
5. Dr Tan was married in Melbourne on 4 July 1987. His wife was also born in Malaysia. They have two children, Stephanie born on 8 August 1991, and Benjamin born on 4 July 1993. Both children are Australian citizens and have Australian passports.
6. In 1989 on completion of his Ph.D, Dr Tan obtained employment in Australia with an engineering company. He also applied for permanent residency in Australia.
7. Dr Tan’s application for permanent residency was successful. Dr Tan holds a Class BB Resident Return Visa Sub Class 155 which permits him to remain in Australia indefinitely (Tdocs p34).
8. In mid 1994 Dr Tan obtained a position with HP Singapore. After a year in that position he applied for a position with HP Australia. He was successful and returned to Australia in August 1995.
9. While working with HP Australia, Dr Tan’s work specialty focussed particularly on what he describes as “the architecture and design” of billing systems for telecommunications networks. That work led him to have many discussions and much contact with Telstra staff and consultants.
10. In April 1999 Dr Tan transferred from HP Australia to HP Singapore on an expatriate’s employment contract until August 2004. The contract provided him with travel and housing assistance. The posting was to allow him to work on a project in Beijing China with which he had become involved from late 1998. He worked in Beijing on the particular project until August 1999 when it was almost completed. He was then posted to Singapore.
11. Since August 1999 Dr Tan has lived in Singapore. When his current contract with HP Singapore terminates in August 2004, he expects to return to live in Australia. He is looking at schools for his children to attend in Melbourne from August 2004. In Singapore they attend an Australian International School, so that they will be able to adjust back to the Australian educational system. Dr Tan owns a home in Melbourne which is currently tenanted and two investment properties. He lodges Australian Tax Returns.
THE ISSUE
12. The relevant provisions of the Australian Citizenship Act 1948 (“the Act”) are as follows:
13.(1) Subject to this section, the Minister may, in the Minister's discretion, upon application in accordance with the approved form, grant a certificate of Australian citizenship to a person who satisfies the Minister that:
(a)the person is a permanent resident;
(b)the person has attained the age of 18 years;
(c)the person understands the nature of the application;
(d)the person has been present in Australia as a permanent resident for a period of, or for periods amounting in the aggregate to, not less than one 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.
(1A) The Minister shall not grant a certificate of Australian citizenship to a person under subsection (1) at a time when the person is not present in Australia unless:
(a)the person is a permanent resident; and
(b)the Minister considers that the person is engaged in activities outside Australia that are beneficial to the interests of Australia.
. . . .
(4) For the purposes of the application of subsection (1) in relation to an applicant for the grant of a certificate of Australian citizenship:
. . .
(b)subject to paragraph (a), the Minister may, in the Minister's discretion:
(i)treat a period during which the applicant:
(A) was a permanent resident;
(B) was not present in Australia; and
(C) was engaged in activities that the Minister considers beneficial to the interests of Australia;
as a period during which the applicant was present in Australia as a permanent resident;
. . . .
The only aspects of s 13(1) which the Minister’s representative contended were not met are those found in s 13(1)(d) and (e). Ms Greaves acknowledged that it was conceded that Dr Tan satisfies all the other requirements of s 13(1) of the Act.
13. There is no dispute that Dr Tan, at the time he lodged his application for citizenship on 27 March 2002, had not been present in Australia so as to satisfy the residence requirements of paragraphs (d) and (e) of s 13(1) of the Act. The issue before the Tribunal is whether it is appropriate to exercise the discretion conferred by s 13(4)(b)(i) of the Act, in his favour, so as to treat a period during which Dr Tan was not present in Australia, as a period during which he was present in Australia as a permanent resident. That discretion may only be exercised if the Tribunal is satisfied that while Dr Tan was not present in Australia, during the relevant periods specified in s 13(1)(d) and (e) of the Act, he was “engaged in activities that the Minister considers beneficial to the interests of Australia”.
14. However before discussing that concept it is necessary to consider the evidence as to the relevant periods specified in s 13(1)(d) and (e) of the Act. The reviewable decision states (Tdocs p13):
Mr Tan entered Australia as the holder of a migrant visa on 27 October 1988. In the five years prior to lodgement of his application, Mr Tan has spent 515 days in Australia, and in the past two years 11 days.
Mr Tan does not meet Section 13(1)(d – (1 in 2 years residence requirement). Applicant falls short of meeting this requirement by 354 days. Mr Tan does not satisfy Section 13(1)(e) – (2 in 5 years residence requirement). He falls short of meeting this requirement by 215 days.
. . .
Furthermore Departmental record shows that Mr Tan has not been holding a resident return visa since 20 June 2002.
15. The accuracy of those calculations is of course an important part of the decision-making in a matter of this nature. Unfortunately those who prepared and checked the recommendation and the decision-maker seem to have made at least three significant errors.
16. First, as to the requirements of s 13(1)(d) (1 in 2 years residence requirement), the decision states that Dr Tan was present in Australia for only 11 days between 27 March 2000 and 26 March 2002 and thus fell short of the requirement by 354 days. Dr Tan pointed out that he had been in Australia for two weeks (in fact 15 days) over December/January 2001/2 and that visit was not included in the movement records. Ms Greaves confirmed that such a visit is established by the passport visas at Tdocs pp34 and 35, but for some reason it is not recorded at T9 or acknowledged in the calculations. The correct period by which presence in Australia falls short is therefore 339 days.
17. Secondly, as to the relevant five year period from 27 March 1997 to 26 March 2002, the decision states that Dr Tan fell short of meeting that requirement by 215 days. I found that puzzling in the light of his evidence that he had lived in Australia until April 1999, i.e. for the first two years of the relevant five year period. I therefore reviewed the movement records at T9. They confirm his evidence that he lived in Australia, with only short trips away until 14 March 1999 (rather than April as Dr Tan stated).
18. A calculation of the days Dr Tan was present in Australian between 27 March 1997 and 26 March 2002 shows that he was in Australia for 666 days of the required 730, thus leaving a shortfall of 64 days and not 215 days as stated in the decision at Tdocs p13. That error was also repeated at paragraph 5 of the respondent’s Statement of Facts and Contentions.
19. The third error in the decision is the statement that Dr Tan had not been holding a resident return visa (and therefore would not have been a permanent resident) since 20 June 2002. Ms Greaves acknowledged that the person who wrote the recommendation seemed to have overlooked the visa at Tdocs p34 showing that a Class BB resident return visa was granted to Dr Tan on 13 December 2001 allowing him to arrive until 13 December 2006.
20. There may be some problems with the systems used within the Department of Immigration and Multicultural and Indigenous Affairs (“the Department”) to glean relevant information from movement records and photocopies of passports. It is important that accurate information is obtained and placed before decision-makers. For that reason I propose to ask the District Registrar to forward a copy of these reasons to the Secretary of the Department.
ACTIVITIES . . . BENEFICIAL TO THE INTERESTS OF AUSTRALIA
21. The meaning of the concept of “activities . . . beneficial to the interests of Australia”, has been considered in decided cases and by the Minister in Guidelines in relation to the exercise of discretions conferred by s 13 of the Act, as set out in the Australian Citizenship Instructions promulgated by the Minister (T12).
22. The leading authority is the Federal Court decision of Minister for Immigration, Local Government and Ethnic Affairs v Roberts (1993) 41 FCR 82; 29 ALD 656 where Einfeld J, at p87 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.
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. Unlike the tribunal, I regret being unable to see the nexus between Mr Roberts' overseas work and our natural resource and employment policies. I therefore cannot agree that the two conclusions reached by the tribunal in this connection addressed relevant issues as defined by the statute.
23. That passage, as would be expected, has been often cited since 1993. As Ms Greaves said the decisions depend on the facts of the particular cases.
24. The Minister’s Guidelines (T12) do not really add to the decided cases. In fact they add some confusion. Ms Greaves stated that the relevant part of the Guideline was at 4.3.26. It states (Tdocs p119):
In assessing whether activities are beneficial to the interests of Australia, consider the following:
·It requires “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… and means more than the private interests of the (applicant). The section requires some objective benefit to Australia.” (Federal Court in Roberts.)
·It requires “something in the nature of activities which achieve recognition of Australia or of Australian achievements or commercial advantage for Australia, or increase the international respect and goodwill for Australia… (it) refers to the public interests of Australia.” (AAT in Fraser.)
·“The claim that the applicant’s employer has enhanced the reputation of its Australian parent company and Australian companies in general, falls short of demonstrating the applicant’s activities were beneficial to the interests of Australia.” (AAT in McCarthy).
·“There should be a close nexus between the overseas activities and the subsequent benefit to Australia to exercise the discretion” (AAT in Tsui). The benefit should be largely as a result of the applicant’s activities and must not be residual, remote, indirect or speculative (see, for example, the AAT case of McCarthy).
25. The confusion arises because Ms Greaves contended that Guidelines produced by Dr Tan, and received by the Tribunal as part of his Statement of Facts and Contentions, were irrelevant. They were No. 28.1 to 28.4 extracted from the DIMEA Procedures Advice Manual 3 dealing with the concept of “Benefit to Australia”.. Ms Greaves stated that they related to Business Skills Visas and not citizenship. However the Guidelines (T12, 4.3.25), first bullet point under the heading “Business skills visa applicants”, do refer to the s 13(4)(b)(i) residence discretion. That is the same discretion as applies in this matter.
26. However, so as not to venture into contentious areas, I have decided not to consider the extract from the DIMEA Procedures Advice Manual. I will consider paragraph 4.3.26 relied on by Ms Greaves.
27. Deputy President Hotop said in Re Kao and Minister for Immigration and Ethnic Affairs (1993) 30 ALD 916 at para 11:
11. Although the Tribunal is not obliged to apply a policy formulated by a decision-maker (Drake v Minister for Immigration and Ethnic Affairs (1979) 46 FLR 409), it should ordinarily do so in the absence of cogent reasons against the application of the policy in question (such as illegality or injustice) - especially where, as in this case, the policy has been adopted by a Minister of the Crown: Re Drake and Minister for Immigration and Ethnic Affairs (No.2) (1979) 2 ALD 634 at pp.639-645; Re Dainty and Minister for Immigration and Ethnic Affairs (1987) 6 AAR 259 at p.266; Minister for Immigration, Local Government and Ethnic Affairs v Roberts (1993) 41 FCR 82 at p.86. There is no reason why the relevant Ministerial policy guideline quoted in paragraph 10 above should not be applied by the Tribunal in the present case.
28. I respectfully agree with Deputy President Hotop, although the current Guideline is not identical to that in 1993.
THE EVIDENCE
29. Dr Tan gave evidence that while he has been living in Singapore and working for HP Singapore he has in his opinion been substantially engaged in “activities . . . beneficial to the interests of Australia”.. He explained that from the time he was posted to Singapore from Beijing in about August 1999, he has been leading a small team of people specialising in solutions in the field of business intelligence. From about August 1999 to April 2000 the team worked on proposals to gain contracts for business support projects in telecommunications and customer relationship management domains.
30. Dr Tan said that he had maintained the contacts he had formed with Telstra, from 1996, when he was working in Australia. From April or June 2000 his work focus became actively involved in supporting HP Australia. He started directly managing a team which provided second line support for a maintenance support contract between HP Australia and Telstra International (“Telstra”), a Telstra subsidiary. The contract gave HP Australia responsibility for ensuring that the Telstra Bill Maintenance Program was working well. Dr Tan explained that first line support was provided by HP Australia but if staff in Australia could not resolve a problem, then Dr Tan’s team in Singapore provided second line support.
31. The evidence was somewhat technical, but in substance Dr Tan and Mr Sweeny explained that the project on which Dr Tan worked for HP Australia from April or June 2000 concerned the collection of data from switches to bill private clients and international telecommunication carriers. Dr Tan said that project took approximately 20% of his time from mid 2000 until May 2001. At that time the supplier of the hardware advised that the system would be made obsolete.
32. From May 2001 until March 2002 Dr Tan was very much involved in active discussions with Telstra and Reach Australia (“Reach”), which Mr Sweeny stated “is a Telstra subsidiary, responsible for all of Telstra’s international voice and data traffic with major operations in UK, US, Japan and Hong Kong”.. Reach is a joint venture between Telstra and an Asian telecommunications company. Dr Tan was responsible for preparing a proposal to re-engineer the billing maintenance program to replace the obsolete system. He said that after much planning and work a formal proposal and quotation was delivered in October 2001. That was followed by further discussions and workshops. In January 2003 HP Australia won the order from Reach. Dr Tan was the Solutions Delivery Manager and Mr Sweeny of HP Australia managed the Australian end of the project.
33. Dr Tan pointed out that the intimate knowledge he had gained of Telstra’s work when he worked in Australia from 1995 to 1999 and the contacts he had made then, meant that he was well placed to understand the needs and systems of Telstra and Reach so as to offer them the most appropriate system. He said that he had worked very intensively on the project from May 2001 to January 2002 when the order was obtained, and again from January 2002 to April or May 2002. He estimated that he had spent 70-80% of his time on the project in early 2002 and almost the same proportion of time in the preparation of the proposal from May 2001 to January 2002.
34. Dr Tan stated that there were benefits to Australia in the creation of positions within HP Australia dealing with the project on which he worked. He also referred to the benefit to the interests of Australia provided by the activities which assisted Telstra and Reach to compete efficiently and successfully in the international telecommunications network.
35. In answer to questions from the Tribunal, Dr Tan explained that the work he has done for Telstra and Reach could not have been done in Australia because the software he uses in Singapore is supported by the team in Singapore. He said there are no competitors with that expertise and software and equipment in Australia. The competitors for the contract HP Australia won in January 2002, were IBM and a Finnish Telecommunications company. There were no Australian competitors. Australia does not have the focus competency to do the work. He said that when he came back to Australia in 1995 he was the only person focussed on that area of work, but now other members of the team have developed competency in Australia and in Singapore. Dr Tan said his team’s work allows Reach to be efficient and competitive with international telecommunication companies such as ATM in the international market and to compete within Australia against international competitors who seek to increase their share of the Australian market.
36. Dr Tan said that the fees paid by Reach are paid to HP Australia. HP Singapore only charges HP Australia for the costs incurred. HP Singapore is a costs centre. It does not make profits but exists to provide a service to other HP entities such as HP Australia to assist them in their work. Mr Sweeny said that after HP Australia has paid all expenses, the nett profit is retained by HP Australia, except for a small percentage, he thinks of about 12%, which is paid to HP International.
37. Dr Tan did not claim that he has ever spent 100% of his time on Australian projects. As set out above, he said that at times he spent up to 70 to 80% of his time on the proposal and implementation of the Reach Universal Mediation System. He said he has also been engaged with major projects for Digital in the Philippines and for KDDI in Japan. He said that in the period from mid 2000 to May 2001 he probably spent about 20% of his time on the provision of second line support to ensure the Telstra Billing Maintenance Program was running well.
38. The Tribunal asked Dr Tan what would be the effects for Australia if he did not do the work he is now doing in Singapore. He said Australia does not have the expertise to do the work. If it were not done competently and efficiently Australia and Reach would suffer a loss of competitive edge, and if the billing mediation system did not function well, Reach and Telstra would lose income.
39. Mr Sweeny’s evidence was very helpful. His outline of evidence (A2) described four projects he has managed for HP Australia, in each of which Dr Tan has played a leading role in enabling HP Australia to provide contracted services to Telstra and Reach. Mr Sweeny explained how the projects have relied on Dr Tan’s expertise and how the success of each project has lead to more work for HP Australia in providing services for Telstra and Reach. The total fees paid to HP Australia in respect of the four projects are in the vicinity of $10M over the period June 2000 to the present time.
40. Mr Sweeny stated in his outline of evidence as to the second project:
1.Dr. Tan played a key role in winning the UMS [Universal Mediation System] project for HP Australia which resulted in significant commercial and economic activity for HP Australia. This project also helped in creation and maintenance of employment in Australia. He led the business development activities starting in May 2001, which resulted in a proposal being submitted on 29 October 2001. Following the proposal submission, Dr. Tan was instrumental in leading the bid for HP Australia to win the order for the Reach UMS project in January 2002. For the 6 months, preceding the order, Dr. Tan was focused pre-dominantly on this project.
2.Subsequent to the order, from January 2002 to November 2002 (10 months), Dr. Tan was the Solution Delivery Manager, directly managing and leading the HP team in Singapore and working closely with HP Australia and Reach Australia, to implement the Reach Australia UMS System.
3.This was a mission critical project for Reach Australia, to ensure Reach – Telstra’s International telecommunications gateway operator, was able to increase Telstra’s domestic and international competitiveness in the international and wholesale voice and data services. The UMS system implemented by the HP team, has increased the competitiveness and reliability of the revenue collection system, as well as Reach Australia’s overall operational efficiency.
41. The third and fourth projects referred to by Mr Sweeny were later in date than 27 March 2002, but they do show the ongoing beneficial effects for HP Australia and for Telstra and Reach, as a result of Dr Tan’s work in obtaining the order for project 2, and ensuring it functioned well
42. As set out in paragraph 36 above, Mr Sweeny’s evidence was also helpful in explaining that the substantial part of the profits HP Australia derived from these projects, comes back to Australia. Part of the costs of the projects of course also cover salaries of HP Australia employees.
43. The Tribunal asked Mr Sweeny if he could explain why Telstra had joined with an Asian telecommunication company to form Reach. He reminded the Tribunal that the Asian market has a very large population and that Telstra wanted a partner to help it enter that market.
CONCLUSION
44. Applying the often cited test from Roberts (see para 22 of these reasons), I find that while he has been working for HP Singapore, from June 2000, Dr Tan has been engaged in activities “that are beneficial to the interests of Australia”.. His activities do provide some commercial advantage to Australia. They have allowed Telstra and Reach to compete successfully in the global telecommunications market and in the Australian market. His activities have also ensured that the major part of the profit derived from the fees paid by Telstra and Reach returns to HP Australia, which is an Australian company.
45. I find that because Telstra is still 50 percent government owned and because it is one of two partners in Reach, there is some benefit to a public interest of Australia. I consider it appropriate to infer that Telstra and Reach which are both substantially owned by the Australian government, would not be paying fees amounting to something in the vicinity of $10M to HP Australia unless the services provided offered “some objective benefit to Australia”.. Further there was evidence demonstrating the benefits and commercial advantage to the Australian international telecommunications industry in the sense of enabling it to function efficiently and retain its competitive edge. I accept that the Australian telecommunications industry is important to Australia.
46. It is however appropriate to consider also the aspects of other cases referred to in the Guidelines set out in paragraph 24 of these reasons.
47. First, as to 4.3.26, bullet point one, I accept Dr Tan’s contention that the fact that there are private benefits for Dr Tan and for HP Australia does not contradict his claim that his activities are also beneficial to the interests of Australia. There is benefit to “more than the private interests of” Dr Tan, and HP Australia.
48. The second bullet point in 4.3.26 refers to the concept of commercial advantage for Australia, as explained by Einfeld J in Roberts. I have already found that Dr Tan’s activities in the relevant period did provide “some commercial advantage to Australia”. I see no reason for the inclusion in the Guidelines of a reference to the decision in Re Fraser and Minister for Immigration, Local Government and Ethnic Affairs (AAT Decision No S91/205, 15 October 1991) which, as I pointed out in Re Chiu and Minister for Immigration and Multicultural and Indigenous Affairs [2002] AATA 604 at para 45, was an oral decision and is not readily accessible.
49. The third bullet point asserts that it is not sufficient for Dr Chiu to claim that his employer has enhanced the reputation of an Australian parent company and Australian companies in general. Dr Tan did not rely on such a claim. In Re McCarthy and Minister for Immigration, Local Government and Ethnic Affairs (1993) 30 ALD 447, the work Mr McCarthy was performing in Brunei had no direct commercial benefit for Australia. The facts there were substantially similar to those in Roberts.
50. I find that all the aspects of the last bullet point are also satisfied. There is a close nexus between Dr Tan’s overseas activities and benefit and commercial advantage to Australia, Telstra, Reach and HP Australia. The Guideline states that the benefit should be largely as a result of the applicant’s activities. I find that is the case in this matter. It is Dr Tan’s specialised expertise which has allowed HP Australia to win and hold the contracts for provision of services which are of commercial benefit to Australia.
51. The Guidelines also refers to Re Tsui and Minister for Immigration Local Government and Ethnic Affairs (1991) 24 ALD 236 as authority for the view that the benefit should not be “residual, remote, indirect or speculative”. In this matter there is clear evidence of direct benefit. The facts are distinguishable from Re Tsui where there was only vague evidence that some of Mr Tsui’s computer system developments had been adopted by Chase AMP and may have led to improved performance of the Australian company and thus have been beneficial to the interests of Australia. In this matter the evidence was that the major activity had been developed for Telstra and Reach and enabled them to bill for calls efficiently, accurately and promptly. I find that, as Dr Tan stated, his work “enhanced the international competitiveness of Reach Australia, the Telstra subsidiary responsible for Telstra’s international and wholesale voice and data gateway services”.
52. The evidence focussed mainly on the period from May 2001 to 27 March 2002, when Dr Tan was working intensively on the proposal for the new Universal Mediation System for Reach, and then providing the expertise as Solution Delivery Manager to ensure that the system functioned well and enhanced the competitiveness and reliability of Reach’s revenue collection system, as well as Reach’s overall operational efficiency. However there was also evidence that during the period from June 2000 Dr Tan was the Delivery and Support Manager for Telstra’s International Billing Maintenance Program. He directly managed the Second Line Support Team for Telstra’s International gateways exchange. Mr Sweeny wrote in his outline of evidence:
This provided Telstra Australia, and its subsidiaries in New Zealand and UK, with a highly reliable CDR collection system, increasing Telstra’s competitiveness in the international and wholesale voice market.
53. I find that even though Dr Tan, in the period from June 2000 to May 2001, spent less time on activities beneficial to Australia than he did in the period from May 2001, he was still engaged in activities outside Australia that were beneficial to the interests of Australia. Thus I find, under s 13(4)(b)(i) of the Act, that the period from June 2000 to 27 March 2002 is to be treated as a period during which Dr Tan was present in Australia as a permanent resident. That finding means that Dr Tan satisfies the requirements of s 13(1)(d) and (e) of the Act.
54. The decision under review will be set aside. The matter will be remitted to the respondent for reconsideration in accordance with the direction that under s 13(4)(b)(i) of the Act the period from June 2000 to 27 March 2002 is to be treated as a period during which Dr Tan was present in Australia as a permanent resident and accordingly Dr Tan satisfies the requirements of s 13(1)(d) and (e) of the Act.
I certify that the 54 preceding paragraphs are a true copy of the reasons for the decision herein of
Mrs Joan Dwyer, Senior MemberSigned: Grace Carney
Personal AssistantDate of Hearing 21 July 2003
Date of Decision 24 July 2003
Solicitor for the Applicant Self Represented
Solicitor for the Respondent Ms J Greaves
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