Tang and Minister for Immigration and Multicultural and Indigenou S Affairs

[2003] AATA 756

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2003] AATA 756

ADMINISTRATIVE APPEALS TRIBUNAL          Nº V2002/1135

GENERAL ADMINISTRATIVE  DIVISION

Re:            XU MING TANG

Applicant

And:         MINISTER FOR IMMIGRATION
  AND MULTICULTURAL AND

INDIGENOUS AFFAIRS

Respondent

DECISION

Tribunal:       M.J. Carstairs, Member

Date:6 August 2003

Place:Melbourne

Decision:The Tribunal affirms the decision under review.

(sgd) M.J. Carstairs
  Member

CITIZENSHIP ‑ application for Australian citizenship ‑ failure to satisfy residence requirements ‑ employment by Australian company overseas ‑ whether activities outside Australia beneficial to the interests of Australia ‑ exercise of discretion

Australian Citizenship Act 1948 s13(1)(d), 13(1)(e), 13(4)(b)(i), 13(9)(c)

Minister for Immigration, Local Government and Ethnic Affairs v Roberts (1993) 29 ALD 656

Re Ho and Minister for Immigration and Ethnic Affairs (1994) 34 ALD 664

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

Re McCarthy and Minister for Immigration, Local Government and Ethnic Affairs

(1993) 30 ALD 447

Re Singh and Minister for Immigration and Multicultural Affairs [1998] AATA 329

Re Tinamisan and Minister for Immigration and Multicultural Affairs (1996) 43 ALD 349

Re Tsui and Minister for Immigration, Local Government and Ethnic Affairs

(1991) 24 ALD 236

REASONS FOR DECISION

6 August 2003  M.J. Carstairs, Member

1.      This is an application by Xu Ming Tang (the applicant) for review of a decision of the Minister for Immigration and Multicultural and Indigenous Affairs (the respondent) dated 23 September 2002 to refuse to grant Australian citizenship to the applicant.

2.      At the hearing of this matter on 21 July 2003 Mr P. Smith, registered migration agent, represented the applicant, and Mr B. Wee, solicitor with the Australian Government Solicitor, represented the respondent.

3. The Tribunal received into evidence the documents lodged under s37 of the Administrative Appeals Tribunal Act 1975 (T1-T8).

BACKGROUND

4.      The applicant was born on 24 August 1963 and is a citizen of the People’s Republic of China.  He arrived in Australia on 27 October 1999 as the holder of a permanent subclass 126 visa. Since 15 March 2000 he has been employed as a chief sales representative in the Shanghai office of Oceania Brothers Trade and Investments Pty Ltd (the company), an Australian exporter of wool and wool products.

5.      On 8 April 2002 the applicant lodged an application with the respondent for the grant of Australian citizenship.  In the five years before the application he spent 135 days in Australia and in the two years before the application he spent 114 days in Australia.  On 23 September 2002 a delegate of the respondent refused the application on the grounds that the applicant did not meet the residence requirements under the Australian Citizenship Act 1948 (the Act).  The delegate was not prepared to exercise the discretion under s13(4)(b)(I) of the Act, which permits the Minister to treat a period spent outside Australia, while engaged in activities beneficial to Australian interests, as a period during which the applicant was present in Australia as a permanent resident.

6.       On 22 October 2002 the applicant sought review by the Tribunal.

EVIDENCE

7.      The applicant told the Tribunal that he works full‑time and his duties and responsibilities with the company include promoting Australian wool, completing sales, securing and keeping contact with customers, conducting market research and providing quality assurance.  He said that there are three other employees in the Shanghai office, and he supervises their work .  He said that they   either have Australian citizenship or permanent residence status.  The applicant stated that he has achieved considerable success by exercising his skills and his knowledge of the Chinese market, business culture, commercial practices and laws.  He said that since he joined the company its turnover has increased from A$119,845 in 1999/2000 to A$3,151,852 in 2000/2001.  He said that neither he nor the company took part in co‑operative ventures with other Australian companies in China,  for example, in Australian wool promotions.  He said that he  focuses on  his company's business.

8.      The applicant emphasised that although he intends to remain living in China, his wife and daughter are Australian citizens, who live in Melbourne.  He said that his wife has established a Mandarin language school, and his daughter is a secondary school student.  He stated that the family owns the family residence, an investment property and a motor vehicle in Melbourne..  He has recently sold a property that he owned in Shanghai and intends to rent in the future.  He owns a motor vehicle in Shanghai.  In relation to his continuing residence in China since 2000, the applicant said that he was aware that he did not spend the requisite amount of time in Australia in the two years and the five years immediately before his application for Australian citizenship.  He explained that he was in Australia at the time he lodged his application for Australian citizenship in April 2002, but was then required by the company to work in China.  He said that it is good for the future of the company  that he remains in China.  He said that he has made a number of visits to Australia to spend time with his family and considers Australia  his home.  He agreed that he does not pay personal income tax in Australia because of the length of his absences overseas. 

9.      In a letter dated 16 October 2002 (T1) in support of the application, Mr H. Wang, Managing Director of the company stated:

…He is directly involved in all business negotiations with wool buyers from China.  He has directly contributed to the company’s wool exporting business.  Since his employment with our company, the company has exported Australian wool with a total value in excess of 5 million Australian Dollars.  It is teamwork that has led the company to reach such growth in turnover.  Mr. TANG is one of the key personnel in the team.

…

Mr Wang added that the applicant has made a great contribution to the company and to the Australian wool exporting business.

10.     In oral evidence, Mr Wang said that the business commenced in about 1999.  He said that it was necessary for the applicant to be personally involved in the business in China because of his special skills and local knowledge.

CONSIDERATION OF THE ISSUES

11.     Under s13(1) of the Act:

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:

…

(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;

…

12. Where an applicant fails to meet the criteria in s13(1)(d) and (e) of the Act, he or she may be assessed under s13(4) of the Act:

13(4)       For the purposes of an 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;

…

13.     Under s13(9) of the Act:

13(9)  Subject to subsection (11), 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:

…

(c)who is a permanent resident and is the spouse, widow or widower of an Australian citizen;…

14.     Chapter 4 of the Australian Citizenship Instructions (the Instructions) sets out the policy guidelines which are to be applied by the respondent's delegates in assessing applications for the grant of a Certificate of Australian Citizenship under the provisions of s13 of the Act.  The relevant Instructions are at clauses 4.3.14 to 4.3.25:

4.3.14Periods in which the Applicant was a permanent resident and was outside Australia engaged in activities beneficial to the interests of Australia may be counted towards the residence requirements.  This discretion applies to both residence requirements (ie, both “2 years in the last 5” and “1 year in the last 2”).

…

4.3.16Under Ministerial policy, 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).

…

15.     Clause 4.3.17 provides that if the applicant is overseas, the discretion will not normally be exercised.  Clause 4.3.20 provides the decision-maker with guidance in assessing whether the activities are beneficial to Australia.   

16. Mr Smith acknowledged that the applicant does not satisfy the residence requirements of s13(1)(d) and s13(1)(e) of the Act, but submitted that the Tribunal should exercise the discretion provided for in s13(4)(b)(i)(C) of the Act in the applicant’s favour and grant Australian citizenship to him. Mr Smith said that, in the period since he left Australia, the applicant has been engaged in activities...beneficial to the interests of Australia.  He said that the applicant’s promotion of Australian wool exports to China and his success in increasing the company’s turnover significantly since joining the company are activities which have provided objective economic and commercial benefit to Australia.  In this sense, they have furthered the public interest of Australia and not only the private interests of the applicant.  The Tribunal was referred to Minister for Immigration, Local Government and Ethnic Affairs v Roberts (1993) 29 ALD 656 in which Einfeld J said at 660:

…

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 [person applying for citizenship]..  The section requires some objective benefit to Australia.

…

17.     In relation to the Instructions, Mr Smith submitted that the Instructions contain interpretations of the Act that are more rigid and demanding than the interpretation of the Act by the Federal Court in Roberts..  He said that, in any event, the applicant has satisfied the criteria set out in the Instructions by his direct and personal involvement in business activities that have generated commercial benefits for Australia throughout the relevant period by improved business turnover of an Australian company and increased exports of Australian wool products.  Mr Smith acknowledged that the applicant has received personal benefits by way of salary and bonuses, but said that the increased exports were objective benefits to the Australian economy achieved by the applicant.  Mr Smith stated that there was no legal requirement to support the policy directive that the discretion will only be exercised if the applicant is in Australia, and noted that the applicant was required by the company to work in China.

18.     Mr Smith submitted that economic benefits to the interests of Australia have been direct, ascertainable and immediate, and not indirect, intangible or speculative (Re McCarthy and Minister for Immigration, Local Government and Ethnic Affairs (1993) 30 ALD 447), because the applicant is employed directly by an Australian company to undertake activities for the company overseas. He said that the applicant’s activities also maintain employment of Australians in China and generate indirect employment to Australians involved in primary production of Australian wool, and to Australians providing the company with business services such as accountancy. He said that the Tribunal should take into account that members of the applicant’s immediate family are Australian citizens and are resident in Australia. He said that it would ordinarily be the case that an applicant for citizenship who has engaged in activities beneficial to the economic or commercial interests of Australia will also have enjoyed some personal commercial benefit or advantage from those activities.

19.     Mr Wee referred the Tribunal to relevant authorities and submitted that the benefit to Australia can be economic, cultural or social (Re Singh and Minister for Immigration and Multicultural Affairs [1998] AATA 329), commercial or otherwise (Roberts), but must be more than the private interests of the applicant (Roberts, Re Singh, Re Ho and Minister and Ethnic Affairs (1994) 34 ALD 664) and the employer (Re Tinamisan and Minister for Immigration and Multicultural Affairs (1996) 43 ALD 349). He said that the benefits to Australia must not be so remote, indirect and speculative as regards Australia’s interests that they cannot be taken into account (Re Tsui andMinister for Immigration, Local Government and Ethnic Affairs (1991) 24 ALD 236, Re McCarthy).  He submitted that the applicant’s case was similar to Re Lan and Minister for Immigration and Multicultural Affairs [2001] AATA 362, where the Tribunal granted citizenship though the applicant was not in Australia, and was not paying Australian tax, but was engaged for limited hours per week in activities that promoted the export of Australian services.

20.     Mr Wee submitted that while the applicant’s activities overseas during the relevant period may have or will further the private interests of the company, these activities will not necessarily benefit the interests of the Australian community at large or stimulate the Australian economy.  Mr Wee noted that the applicant does not pay personal income tax in Australia due to the length of his absences overseas, and said that there is little evidence of objective public benefit to the whole of Australia or to an increase in international respect or goodwill for Australia arising from the applicant’s activities.  He stated that there are several Australian employees in the Shanghai office of the company, and apart from the Managing Director’s comments that the applicant is one of the key personnel in the team and has made a great contribution to the Australian wool exporting business, the applicant has not provided evidence that the growth of the company’s turnover was attributable directly to him, or that he has an extensive or crucial personal involvement in the activities of the company.  

21.     In relation to the promotion of Australian companies and export earnings, Mr Wee submitted that there is no evidence that the company or the applicant have secured export markets for Australian companies against overseas competitors.  He added that there is no evidence that the applicant would suffer hardship if the decision is affirmed, because the applicant would retain his status as a permanent resident of Australia.  His wife and daughter would not be affected adversely, and his continued employment would not be in jeopardy.

22.     In reaching its decision the Tribunal takes into account all relevant matters including documents, oral evidence and written and oral submissions, and does not apply the Instructions in isolation.

23. There was no dispute that the applicant did not meet the residence requirements of s13(1)(d) and s13(1)(e) of the Act. In relation to s13(4)(b)(i)(C) of the Act, the Tribunal agrees that the wording is plain and unambiguous. The Tribunal notes that in Roberts Einfeld J said at 660:

…all factors that are relevant should be taken into account and their consideration should not be denied because they fall outside guidelines which have been prepared...

24.     In relation to activities beneficial to the interests of Australia the Tribunal has weighed up whether the applicant’s activities primarily were to his private benefit or achieved recognition for Australia and were beneficial to the public interests of Australia.

25.     The Tribunal notes that in Re Ho the Tribunal considered the application of the discretion in s13(4)(b)(i) of the Act. Deputy President McMahon stated at 671:

…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.

…

26.     The Tribunal takes into account the comments of Deputy President McMahon in Re McCarthy at 448:

… 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.

27.     The Tribunal accepts the applicant’s evidence that he has assisted the company to increase its turnover since commencing employment in March 2000.  The Tribunal also accepts Mr Wang’s evidence that the applicant is a valued employee who occupies an important position in the Shanghai office, and that the teamwork at that office has contributed to growth in the company’s business.  However, the Tribunal takes into account that the applicant does not pay personal income tax in Australia, he works exclusively in China and has not expressed a desire to live in Australia in the foreseeable future.  Although the company holds him in high regard, there is no evidence of the relative contribution made by him in comparison to other employees. Nor is there evidence that direct benefits by way of increased Australian exports of wool products or the development of additional market opportunities have necessarily flowed from the applicant’s activities.        

28.     Therefore, in applying the guidelines in Roberts to these matters , the Tribunal accepts the submission by Mr Wee that there is no evidence that the applicant’s activities have brought objective benefit to Australia or have enhanced Australia’s international respect or goodwill, rather than the private interests of the applicant or the company.

29.     For these reasons the Tribunal finds that during the relevant period the applicant was not engaged in activities that the Minister considers beneficial to the interests of Australia under s13(4)(b)(i)(C) of the Act. So this period should not be treated as a period during which the applicant was present in Australia as a permanent resident.. Consequently, the Tribunal finds that the discretion under s13(4)(b)(i) of the Act should not be exercised in favour of the applicant.

30. In relation to the discretion under s13(9)(c) of the Act, to grant a certificate of citizenship to a person who is a permanent resident and the spouse of an Australian citizen, the Tribunal takes into account clause 4.5.2 of the Instructions. The Tribunal notes that the applicant has not been present in Australia as a permanent resident for at least two out of the five years immediately before his application, and he does not have one year of continuous permanent residence immediately prior to the date of lodgment of his application. The applicant has not made any claims under this provision and has not produced any evidence that he would otherwise suffer significant hardship or disadvantage. In the circumstances the Tribunal finds that this discretion should not be exercised in favour of the applicant.

DECISION

31.     The Tribunal affirms the decision under review.

I certify that the thirty‑one [31] preceding paragraphs are a true copy of the reasons for the decision of:

M.J. Carstairs, Member

(sgd)    Olympia Sarrinikolaou

Clerk

Date of hearing:  21 July 2003
Date of decision:                   6 August 2003
Advocate for applicant:         Mr P. Smith, Registered Migration Agent
Solicitor for respondent:        Mr B. Wee, Australian Government Solicitor