Yang and Minister for Immigration and Citizenship

[2008] AATA 459

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2008] AATA 459

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No 2007/3375

GENERAL ADMINISTRATIVE DIVISION        )

Re             Song YANG

Applicant

AndMinister for Immigration and Citizenship

Respondent

DECISION

TribunalProfessor GD Walker, Deputy President

Date3 June 2008

PlaceSydney

DecisionThe decision under review is set aside and remitted to the respondent for reconsideration in relation to s 21(2)(g) of the Australian Citizenship Act 2007 (Cth).

.....................[sgd].........................

Professor GD Walker
  Deputy President

CATCHWORDS - IMMIGRATION – Citizenship – discretionary powers – activities beneficial to the interests of Australia – decision under review set aside and remitted.

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RELEVANT ACT/S:

Australian Citizenship Act 1948 (Cth) (the Act): ss 13

Australian Citizenship Act 2007 (Cth) (the new Act): s 21, 22

Australian Citizenship (Transitionals and Consequentials) Act 2007 (Cth) (the Transitional Act): Item 7(8)

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CITATIONS

Minister for Immigration, Local Government and Ethnic Affairs v Roberts (1993) 41 FCR 82

McCarthy v Minister for Immigration, Local Government and Ethnic Affairs (1993) 30 ALD 447

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

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OTHER AUTHORITIES

Australian Citizenship Instructions (the ACI): Chapter 5

Migration Regulations 1994 (Cth) (the Migration Regulations): s 155.212

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REASONS FOR DECISION

3 June 2008	Professor GD Walker, Deputy President
Basic facts

1.      The applicant Mr Song (Alan) Yang was born in the Peoples’ Republic of China in 1980.  He first came to Australia in 1997 as a pupil at St Paul’s Grammar School, Penrith, New South Wales, where he completed his secondary schooling in 1998.

2.      From December 1998 to January 2003, he worked with an electronics supplier importer, SAST (Aust) Pty Ltd in Sydney, rising to the position of sales manager for Australia.  In January 2003 he became operations manager for Ming Yuan Fish Farm (Ming Yuan), in Dalian, China, a large agriculture business growing fish for the China market.  The business is owned by the applicant’s parents-in-law and employs about 35 staff.

3.      The applicant obtained permanent residency on 28 June 2002 and applied for Australian citizenship on 4 September 2006.  At the time he applied for citizenship, the applicant had spent the following amounts of time in Australia as a permanent resident:

§12 days present in Australia in the two years preceding the application. He thus did not meet the requirements of s 13(1)(d) [of the Australian Citizenship Act 1948 (Cth) (the Act)].

§376 days present in Australia in the five years preceding the application.  Again, he did not meet the requirements of s 13(1)(e).

4.      Consequently, he sought the exercise of the discretionary powers outlined in s 13(4)(b)(i) of the Act, and the relevant policy as detailed in the Australian Citizenship Instructions (the ACI).

5.      A delegate of the Minister rejected the applicant’s application for citizenship on 3 July 2007, and on 23 July the applicant applied to this tribunal for a review of that decision.

6.      As a result of his experience with Ming Yuan, the applicant formed the view that opportunities existed for Australian fish food exports to the Chinese agriculture market.  Following some negotiations with Mr Jian Xin Jiang, he became a director and shareholder of a Sydney based company, Sydney Bay Fisheries Corporation Pty Ltd (now known as SBF), trading as Opal Fish Feed. 

7.      Six months later, a branch was established in Dalian, Liaoning Province, China, under the name Sydney Bay Fisheries (Dalian) Co Ltd, with the applicant as the legal representative.  It operated as a foreign company branch in China.  At its peak, the Dalian company employed 12 staff, divided between its office in Dalian and its warehouse in Shandong.  Supplies were purchased from Skretting Pty Ltd, Australia’s largest manufacturer of fish feed, which operates in Cambridge, Tasmania. 

8.      On 9 August 2007 the delegate’s decision was re-published, amending the reference to the former Act by referring to the Australian Citizenship (Transitionals and Consequentials) Act 2007 (Cth) (the Transitional Act), which was the applicable legislation in force at the time of the delegate’s decision, with respect to the residency requirements for Australian citizenship. On 1 July 2007, the Australian Citizenship Act 2007 (Cth) (the new Act) and the Transitional Act came into effect. The new Act repealed the old one, but the Transitional Act provided that certain criteria adopted from the former Act were to be applied when considering the application.

Issues

9.      The issues for determination under the present application are:

(a)Whether the applicant meets the residency requirements under s 13(1)(d) and (e) of the Act; and

(b)Whether, if he did not meet those requirements, the discretionary powers available under s 13(4)(b)(i) of the Act should be exercised in the applicant’s favour.

Relevant legislation

10. On 1 July 2007 the new Act and the Transitional Act came into effect. The new Act repealed the old Act, but the Transitional Act provided that certain criteria adopted from the former Act were to be applied when considering the application.

11. The applicant applied for citizenship on 4 September 2006 and the delegate made his decision on 3 July 2007. Accordingly, the new Act and the Transitional Act applied.

12.     Chapter 5 of the current ACI is relevant:

The Act and Regulations

Australian Citizenship Act 2007—Section 21

Application and eligibility for citizenship

(1)A person may make an application to the Minister to become an Australian citizen.

Note 1: Subsections (2) to (8) deal with eligibility.

Note 2: Section 46 sets out application requirements (which may include the payment of a fee).

General eligibility

(2)A person is eligible to become an Australian citizen if the Minister is satisfied that the person:

(a)is aged 18 or over at the time the person made the application; and

(b)is a permanent resident at that time; and

(c)satisfies the residence requirement (see section 22), or has completed relevant defence service (see section 23), at that time; and

(d)understands the nature of an application under subsection (1); and

(e)possesses a basic knowledge of the English language; and

(f)has an adequate knowledge of Australia and of the responsibilities and privileges of Australian citizenship; and

(g)is likely to reside, or to continue to reside, in Australia or to maintain a close and continuing association with Australia if the application were to be approved; and

(h)is of good character at the time of the Minister’s decision on the application.

(2A)Paragraphs (2)(d), (e) and (f) are taken to be satisfied if and only if the Minister is satisfied that the person has, before making the application:

(a)sat a test approved in a determination under section 23A; and

(b)successfully completed that test (worked out in accordance with that determination).

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Australian Citizenship (Transitionals and Consequentials) Act 2007—Item 7(8)

In applying section 22 of the new Act to a new application covered by sub-item (2), subsections 22(1) to (2), (4A) and (5A) of the new Act do not apply and the following subsections of section 22 of the new Act apply instead:

(1)For the purposes of section 21, a person satisfies the residence requirement if the person has been present in Australia as a permanent resident for:

(a)a total period of at least 1 year in the period of 2 years before the day the person made the application; and

(b)a total period of at least 2 years in the period of 5 years before that day.

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(4)The Minister may treat a period as one in which the person was present in Australia as a permanent resident if:

(a)the person was engaged in activities during that period that the Minister considers to be beneficial to Australia; and

(b)the person was not present in Australia during that period but was a permanent resident during that period.

Australian Citizenship Instructions current at 1 October 2007 – Chapter 5

The legislation is interpreted as requiring the following:

·the applicant must have been a permanent resident (see 1.4) during any of the periods counted and

·the periods spent outside Australia to be counted must be:

·within the last 5 years for the 2 years in the last 5 years requirement; and

·within the last 2 years for the 1 year in the last 2 years requirement and

·the applicant must have been personally engaged in activities overseas beneficial to the interests of Australia, not just, for example, the company or organisation for which the applicant worked and

·the applicant must have been engaged in a series of activities, not just a one-off transaction and

·the activities must also be during the relevant period/s under consideration and

·the activities must have been ‘beneficial to the interests of Australia’ during the relevant period/s. It is not intended that the provision apply where there are no current benefits irrespective of whether benefits may accrue in the future.

Under 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, persons engaged in aid programs, artists and entertainers of world standing)

If the applicant is overseas, the discretion will normally not be exercised.

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In assessing whether activities are beneficial to the interests of Australia, consider the following:

·It requires “something in the nature of activities providing 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).

Chapter 5 of the current Australian Citizenship Instructions in relation to section 21(2)(g) provide as follows:

Factors that may contribute to a close and continuing association with Australia include: Australia citizen spouse; Australian citizen children, if any; length of relationship with citizen spouse; extended family in Australia, if any; return visits to Australia; periods of residence in Australia; intention to reside in Australia; employment in Australia (eg public or private sector); ownership of property in Australia; evidence of income tax payment in Australia; and current bank accounts, if any, in Australia.

·If at interview an applicant advises that they are intending to leave Australia within the next 12 months, the decision maker should ask about the purpose and the extent of the planned absence from Australia.

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Applicant’s evidence

13.     In his statement (Exhibit A3) and in his oral evidence at the hearing, the applicant stated that he married Chun Yun Lin (his second marriage) in Sydney on 26 January 2003 and they have a child, Yilin Yang, born in China on 1 July 2004.  His wife and child, who are not Australian permanent residents or citizens, are currently residing with him in Dalian, China.  They are not included in his application. 

14.     Since the collapse of the demand for food for breeding turbot in 2007, which is detailed in Mr Jiang’s evidence, he has been supporting himself and his family from his operations in the farming of sea cucumber, which is grown in sea cages and takes between three and five years, depending on the weather, to reach suitability for harvesting.  The company also has some stocks of Opal Fish Feed that can be sold for the production of other kinds of fish.  The sea cucumber absorbs nutrients from the water and requires no fish feed.

15.     The applicant became involved with SBF in about mid-2003 when Mr Jiang came to visit him at the fish farm he was managing, Ming Yuan.  The applicant has expertise in the raising of turbot, a high-quality fish that commanded a high price in China and raised the prospect of good business opportunities in the supply of feed.

16.     He took up a senior management appointment with the organisation when it became SBF, and later obtained a 25 per cent shareholding and became a director of that company.

17.     He was responsible for researching the agriculture market for fish food exports and establishing an operation in Dalian as SBF’s legal representative.  He was responsible for employee relations, market research and also accounting.  He established the Dalian company’s warehouse in Shandong, which had eight full-time staff, with the Dalian office employing a further four.  The staff employed at the warehouse are still there, but the Dalian office staff are not.

18.     He had daily contact with the other directors in Sydney, Mr Craig Wood, Mr Denis Harsanyi and Mr Jian Sing (John) Jiang.  He emailed them daily, weekly and monthly reports. 

19.     The applicant considers that his main achievements with SBF are obtaining the import licence for Opal Fish Feeds and developing the company’s customer base in the Chinese fish farming industry.  He was principally responsible for applying for, and obtaining, the import licence, as he had developed many contacts with PRC officials, an important matter in China.  He also had numerous contacts among fish feed wholesalers.  He travelled weekly to Beijing for discussions with his official contacts.  Obtaining an import licence is a process that normally takes two to three years, but was completed in April or May 2005 after six months, mainly because of his government contacts, including the Mayor of Laizhou City (Shandong Province) (T p 171).

20.     It was the applicant who organised and managed the Dalian company, being responsible, in particular, for accounting and finance, sales, marketing, delivery, money collection and banking.  He was working a seven-day week and was paid 10,000RMB per month, or about $1,500 to $1,600.  Imports totalled a few hundred tonnes, with shipments every two to three months between 2005 and 2007.  Their customers comprised nearly 20 fish feed wholesalers and, by law, the Dalian company is the sole holder of the right to import under the licence.  The company became profitable and remitted about $500,000 to Australia using the KVB funds transfer company. 

21.     The applicant said he has a close association with Australia and, in the longer term, would wish to relocate here and sponsor his wife and child.  He wishes to be an Australian citizen, as he studied in Australia and loves this country.  Australian agriculture technology is of the highest standard and he envisages undertaking other projects in this field later.  He has many friends and relatives here and feels he would fit in well.  His assets here consist of his investment in SBF, but later he would expect to buy a house.  Currently, he owns an apartment in China. 

22.     In the course of cross-examination, the applicant said that he began working part-time with SBF in 2003 and became full-time in mid 2004.  His commitment to the fish farm became a part-time matter from the start of 2004.  As his father-in-law owned the farm, he was not in a position to sever his obligations to it completely.  He had to provide assistance whenever he was needed, but about three months after September 2003 [ie December 2003] he became full-time.  As the fish farm was only about 30 or 40 minutes’ drive from Dalian, it was not a major problem to go there to provide assistance, especially at weekends.  At other times he would often give advice or make decisions by telephone.

23.     In his statement (Exhibit A1) and oral evidence, Mr Jian Xin (John) Jiang, a director and 25 percent shareholder in SBF, stated that the applicant was instrumental in the establishment of SBF.  His activities on behalf of SBF commenced in June 2003 when Mr Jiang received an enquiry from him while he was visiting China.  Finding the applicant’s proposal interesting, he discussed it with Mr Wood on his return to Australia.  Mr Wood being interested also, Mr Jiang returned to China to negotiate with the applicant.  They discussed setting up the company because of Australia’s high technology and quality standards in relation to fish feed. 

24.     The applicant began his activities on behalf of SBF in June 2003, before the company was registered, and was very largely responsible for developing the business from the outset.  His activities included investigating the feasibility of establishing a fish feed export business from Australia to China, negotiating with PRC authorities to obtain the import licence, establishing the Dalian office and Shandong warehouse, negotiating exclusive distribution contracts with relevant Chinese businesses and authorities, managing SBF’s Dalian operations as legal representative, and marketing and promoting the export of Australian fish feed.

25.     Before SBF began importing Opal products, the largest-selling brand of fish feed sold in China was supplied by a Norwegian company.  It was not generally known that Australia could supply the product. 

26.     At that time there were also some smaller local companies producing a cheaper fish feed within China, but the higher price of the imported product was acceptable because turbot commanded such a high price, about 130RMB per 500 grams.  The local producers, however, sold a cheaper feed incorporating excessive amounts of chemicals, which damaged the fish and caused consumers to become sick.  After the problem was criticised in the media, turbot could not be sold at any price, whether in China itself or in Hong Kong.  The episode destroyed the market and both SBF companies had to cease the fish feed export business in mid 2007.

27.     Mr Jiang believes that there is still a large potential market in China.  The company is operating one farm for sea cucumber but, as that is a government-subsidised operation, it is open only to Chinese citizens and foreign investment is excluded.  Consequently, the business is operated in the applicant’s own name.

28.     The Opal Fish Feed name is still well known and SBF holds the import licence for five years.  At the end of that period, it will be able to renew it by formal application, without meeting the testing requirements necessary for an initial application.

29.     The preparations for establishing the company, including undertaking research on the number of fish farms, the type of feed required, the structure of the fish feed business and price patterns, occupied a year.  The applicant was involved in that process full-time.  The Dalian company was established in 2005 and the applicant reported to SBF on a daily, weekly and monthly basis. 

30.     The Dalian company remitted funds to Sydney, but as China still has exchange control laws, processing the payments through the banks was too slow and took over a week.  The company found a quicker way of remitting the funds through a specialised currency transfer company, KVB Kunlun, which specialises in funds transfer to China, Hong Kong and Japan.  KVB maintains a PRC currency account in China into which the funds to be sent to Australia are deposited.  KVB then faxes SBF informing it of the deposit, and KVB immediately credits SBF’s Sydney account in Australian currency.  The process, which is quite lawful, takes about half an hour and is offered at a good exchange rate. 

31.     Australia has benefitted through the applicant’s work in promoting the Australian fish feed industry and Opal in particular.  Australian fish feed products are now known and have a good reputation.  The import licence is important, as it is difficult to open the door into Chinese imports.  Mr Jiang had himself tried to get permission to export dairy products to China, but without success. 

32.     Despite the reverses since 2007, the fish feed market retains potential.  SBF knows the China market already, as does the factory in Tasmania.  The applicant was the person mainly responsible for obtaining the licence, a very stringent process in which an unsuccessful applicant is not given a second chance.  The applicant had ceased working for the fish farm (Ming Yuan) in about August or September 2003.

33.     SBF exported fish feed to the value of $US300,000 pursuant to one order, and there had been smaller orders before that.  The Australian SBF company has three directors and one part-time employee, but also shares some of the 30 staff of Mr Jiang’s other companies that are based at Alexandria, New South Wales.

34.     A statement by the managing director of SBF, Mr Craig Wood, was filed in the Tribunal.  It is identical in terms with Exhibit A1.  As it is unsigned and was not tendered, it does not add a great deal to the evidence of Mr Jiang.

Applicant’s submissions

35.     Mr Henry submitted that the applicant satisfies the requirements of the legislation and policy, as he was required to work overseas by his employer, and his activities were beneficial to Australia.  He also expects to relocate to Australia within two or three years.  Even if he did not settle here, he would still have a close association with this country.

36.     The beneficial activities with which the applicant has been involved include:

§undertaking market research in the China market for Australian exports;

§developing export market opportunities;

§facilitating Australian export activities;

§successfully establishing a wholly-owned foreign enterprise of SBF in China;

§assisting Austrade in advising Chinese and Australian business delegations about doing business in Australia and China; and

§forwarding substantial remittances to the Australian company.

37.     His contribution was recognised by the Commonwealth government.  The business had received an export market development grant, and had been commended by the Austrade representative in Dalian. 

38.     Further, the fact that the applicant was recently granted a resident return visa, for which the requirements are almost identical with those for citizenship, on discretionary grounds on the same day as the application was lodged, was significant.  The arguments advanced for that visa were similar to those in the present application.

39.     The respondent maintains that the applicant was about 55 days short of the requirement for activities for Australian business reasons, but had conceded that some of his time overseas should be counted.  It was not disputed that his activities were beneficial, and the dispute was only about the number of days covered. 

40.     As regards the authorities relied on by the respondent, Minister for Immigration, Local Government and Ethnic Affairs v Roberts (1993) 41 FCR 82 is a leading authority establishing that an objective benefit is a pre-requisite for the exercise of discretion. The examples the judge used, however, set a low threshold and indicated that work overseas, even for a foreign company, need not be discounted simply because it improved the applicant’s chances of work advancement in Australia. Benefits to the applicant and his or her employer are no disqualification, provided that they are not to the exclusion of benefits to Australia.

41.     McCarthy v Minister for Immigration, Local Government and Ethnic Affairs (1993) 30 ALD 447 was distinguishable because the applicant in that case had spent only 75 days in Australia and his employer’s activities were too remote from the benefits said to have been obtained. That was not the case here – there were real benefits that were not merely in prospect, and which could be revived in the future. Here there is, thus, a clear nexus with the benefit to Australia. That benefit was a modest one, but there was no requirement for substantiality. The applicant was not seeking an alternative method of complying with s 13(1)(d) and (e) as in Re Ho and Minister for Immigration and Ethnic Affairs (1994) 34 ALD 664.

42.     Further, in Roberts, the judge had applied a test of benefit to Australia’s interests, which was broader than a direct benefit.

Respondent’s submissions

43.     Pursuant to the transitional provisions, in order to satisfy the residence requirement for citizenship, the applicant, for the purposes of the present application, needs to show that he was resident in Australia for 352 days in the two years preceding the day on which he applied for citizenship.  The Tribunal might treat a period as one in which the person was present in Australia as a permanent resident, if the person was engaged in activities in that period that the Tribunal considers to be beneficial to Australia (Transitional Act, Item 7(8)). 

44.     In McCarthy, the Federal Court had made it clear that the benefit to Australia must have been realised at the time, and not be merely projected for the future.  In Re Ho, Deputy President McMahon pointed out that the discretion was not intended to be an alternative method of complying with the residence requirements.  It was intended to allow some flexibility in exceptional circumstances.  Residence was not an optional requirement, interchangeable with certain activities outside Australia.  Further, in Roberts, Einfeld J said the benefit had to be related to a public interest of Australia, not merely the private interests of the applicant or of an isolated group.

45.     The evidence quantifying the value of the export sales in this case was inconsistent, Ms Quinn submitted, but appeared to lie somewhere between $250,000 and $500,000.  There was some beneficial effect from the viewpoint of the Dalian company and the Australian company, as well as the Tasmanian manufacturer, but no evidence concerning, for example, the number of Tasmanian employees affected.  The benefit was limited to a particular brand of product exported to the PRC.  Consequently, it accrued to two isolated groups in Australia, not to the general community.  The import licence was restricted to particular parties, and was not generally open to others.

46.     The applicant’s marketing activities had produced some broader benefit by opening an important market to an Australian product, and that fact had been acknowledged by Austrade.  It was unclear, however, how far those efforts benefited other companies.  Even if the proportion amounted to half, those activities did not account for the 351 days before the date of the application.

47.     The export development grant from Austrade (T p164), was awarded to SBF in recognition of its work in opening Chinese markets and, consequently, assisted the applicant’s case to some extent.  Not all SBF’s activities were for the general benefit, however, as was made clear by the terms of the grant decision itself.  The sea cucumber farm, on which the applicant had spent time since the collapse of the turbot feed market, conferred no benefit on Australia.

48.     The requirements for a resident return visa, which the applicant had been granted, were different from those applicable to a citizenship application.  The greater importance of citizenship mandated stricter pre-conditions.  Applicants for a resident return visa were required to show “substantial business, cultural employment or personal ties with Australia which are of benefit to Australia” (s 155.212(3), Migration Regulations 1994 (Cth) (the Migration Regulations), Schedule 2). For citizenship, however, the Transitional Act requires activities specifically beneficial to Australia during a particular period. In this case, some benefit had been shown, but no clear general benefit for the requisite period of time.

49.     The respondent submitted that the applicant also fails to satisfy the general eligibility requirements of the new Act, s 21(2)(g), namely, that he “is likely to reside, or to continue to reside, in Australia or to maintain a close and continuing association with Australia if the application were to be approved”.  The applicant stated that he intended to take up residence in Australia, but his plans were vague, and it was difficult to see how he could do so if the Dalian company were re-established.  SBF is not now trading and the applicant is engaged in the domestic cultivation of sea cucumbers.  There is thus little evidence in relation to this criterion, and it was not dealt with by the delegate in the decision under review.  Consequently, if the decision were set aside, it would be preferable to remit the matter to the respondent so that the close and continuing association requirement could be considered.

Consideration

50.     The evidence shows that the applicant was primarily responsible for the establishment and operation of SBF's Dalian subsidiary, both preparing the way for its establishment and operating it once it commenced business.  He researched the China fish feed market, the needs of fish farms and the activities of competitors.  He established and managed the Dalian company as the PRC subsidiary of the Australian company, working at least part of the time a seven-day week.  He obtained the necessary government import licence in six months instead of the usual 12 months, largely by making effective use of his government contacts.

51.     Those activities involved substantial benefits to Australia.  The applicant opened the PRC market for Australian fish feed, when previously the market had been dominated by a Norwegian company and it was not widely known that Australia produced fish feed at all.  He developed a substantial customer base including approximately 20 fish feed wholesalers.  Under his management the company imported significant quantities of goods from Tasmania and remitted funds to the Sydney parent company.  While the authorities indicate that exports are not necessarily to be treated as benefits per se, in this case it is not the quantum of exports that is relevant but the applicant’s success in opening a market for Australian products that had not previously existed.  The actual financial benefits were relatively modest, but the cessation of imports was no fault of SBF or the applicant and exports could resume in the future.  Both Mr Jiang and the applicant were confident that the PRC market returns potential for SBF, especially given that the Opal Fish Feed name has established a good reputation.

52.     The letter of support from the Dalian Austrade office is significant, noting that the applicant, “as a very successful private businessman, enjoys very high prestige in the regional market”.  Austrade also notes that “he has given great support to [the Dalian] and the other Australian exporters in the market” (T p140).  The applicant’s efforts were also recognised by the award of an export market development grant (T p164).

53.     The applicant was working full-time for the Dalian office from no later than mid-2004 until imports ceased in mid-2007.  In relation to the period before that, the evidence shows that he was working part-time, probably about 50 percent of his time, on preparing to establish the company after about June 2003.

54.     There is thus a tangible, realised benefit to Australia, including the employees of the Tasmanian supplier, as well as potentially to others, now that this category of Australian agricultural product has gained a foothold in China.

55.     A proportion of the benefits generated by the applicant's efforts have accrued to himself and SBF, but as was indicated above, that does not exclude them from consideration provided that the benefits are not predominantly of a private or isolated group nature.  If one takes the figures set out in the export market development grant as a rough guide, one could reasonably conclude that about half the benefit has accrued to Australia generally.  At the very least one could not say that the benefits are predominantly private or to the account of isolated groups.

56. The applicant did not attempt to quantify the number of days to be credited to him pursuant to Item 7(8) of the Transitional Act. The respondent’s estimate that the applicant required an additional 55 days was based on the delegate’s calculations, which credited the applicant only with the days that accrued after the Dalian company was established. In my view, however, the applicant’s work in preparing the way for the opening of the Dalian company, including the challenging task of obtaining an import licence, cannot be separated from the period after the company was established. As he was at that stage working part-time on the project, I think it reasonable to conclude that half of the time between mid-2003 and the establishment of the Dalian company should be treated as activities beneficial to Australia within in the meaning of Item 7(8). On that basis the applicant satisfies the residence requirement.

57.     As the respondent pointed out, however, the evidence in relation to s 21(2)(g) of the new Act (likelihood that the applicant will reside in, or maintain a close and continuous association with, Australia) is vague and conjectural.  It does not fit easily with the applicant’s expressed intention to re-establish the Dalian business.  As Ms Quin submitted, I think the preferable course is to remit the application to the respondent for reconsideration in relation to that issue.

58.     The decision under review is thus set aside and remitted to the respondent for reconsideration in relation to s 21(2)(g) of the new Act.

I certify that the 58 preceding paragraphs are a true copy of the reasons for the decision herein of Professor GD Walker, Deputy President

Signed:   ......................[sgd]................................................
               Renee Wallace, Associate

Date/s of Hearing:  14 April 2008
Date of Decision:  3 June 2008
Solicitor for the Applicant:                  Stirling Henry
Solicitor for the Respondent:             Therese Quinn