Yang and Minister for Immigration and Multicultural Affairs

[2001] AATA 176

DECISION AND REASONS FOR DECISION [2001] AATA 176

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No Q00/1011

GENERAL ADMINISTRATIVE  DIVISION       )       
           Re      I-WEN YANG          
  Applicant
           And    MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS          
  Respondent

DECISION

Tribunal       Deputy President DP Breen, Presidential Member      

Date2 March 2001

PlaceBrisbane

Decision      The Tribunal sets aside the decision under review and in substitution therefor determines that the discretion under subsection 13(4)(b)(i) of the Australian Citizenship Act 1948 should be exercised in favour of the applicant so that her time spent outside of the country on business be deemed to be time spent within Australia.  The Tribunal further determines that the discretion under subsection 13(1) of the said Act should be exercised in favour of the applicant so that she is granted Australian citizenship.         
  (Sgd)          DP BREEN
  PRESIDENTIAL MEMBER
CATCHWORDS
IMMIGRATION - citizenship - residency requirements - whether activities carried on outside of Australia were beneficial to Australia - whether time spent outside Australia should be countered as time spent within Australia.

Australian Citizenship Act 1948 ss 13

REASONS FOR DECISION

2 March 2001          Deputy President DP Breen, Presidential Member                  

1. This was an appeal against a decision of the Minister for Immigration and Multicultural Affairs dated 4 October 2000 which refused to grant citizenship to the applicant, I-Wen Yang.  The refusal was on the basis that Ms Yang had not satisfied the residency requirements under subsections 13(1)(d) and (e) of the Australian Citizenship Act 1948. The Minister had refused to exercise his discretion under subsection 13(4)(b)(i) of the Act to deem the time spent outside Australian within the relevant period as time spent within Australia.

2. The matter was heard by me in Brisbane on 3 March 2001.  Mr W Chen, Migration Agent, represented the applicant.  Mr H Copley, Solicitor of Messrs Blake Dawson Waldron, represented the respondent Minister.

3. Oral evidence was given by Ms Yang and the following documents were taken into evidence:

• Exhibit 1            "T" Documents

• Exhibit 2            Movement records of the applicant

1. At the conclusion of the hearing an oral decision was given.  These are the reasons for that decision.

2. Ms Yang is a Taiwanese citizen who has permanent resident status in Australia.  She is a Director and Shareholder of a company called Domini International Co Ltd.  This company is involved in assisting migration and study exchanges for Taiwanese students to English-speaking countries such as Australia, New Zealand and the United States of America.

3. Ms Yang oversees the recruitment of students for English courses and University programmes in both Australia and New Zealand.  Her knowledge of the Australian education system assists her in carrying out this task.

4. As part of her work, Ms Yang travels to Taiwan two to three times a year to run recruitment drives throughout the country.  She was principally engaged in recruiting students for the Staftson International College, a part of the University of New England, which is based in Brisbane.  Her time in Taiwan would be spent overseeing the management of the office, advertising, co-ordinating and running seminars for potential students and liaising with the parents and students to facilitate their relocation to Australia.  She would promote not only the particular courses at the college, but also the general area of Brisbane to both the students and their parents.  In the last two years Ms Yang has been responsible for recruiting 200 students to study at the college.

5. The Australian Government has a policy which strongly promotes the export of Australian education to the rest of the world, particularly South-East Asia.  Ms Yang's activities in Taiwan are directly related to achieving that aim and are beneficial to Australia.  The 200 students benefit both the college, through the payment of fees, and also greatly benefit the local economy, through their general spending and their parents visiting them for holidays.

6. The mere fact that Ms Yang's husband resides in Taiwan, and her visits there allow her to see him, does not reduce the benefit of her activities to Australia.

7. Therefore, it is the Tribunal's view that the discretion under subsection 13(4)(b)(i) should be exercised in favour of the applicant. The periods of time she spent in Taiwan on business should be treated as a period during which she was present in Australia as a permanent resident.

8. This means that subsection 13(1)(d) is satisfied.  The Tribunal went on to consider the rest of the requirements under subsection 13(1).

9. The applicant is a permanent resident and is over the age of 18 years.  Although Ms Yang used an interpreter for the Tribunal proceedings, it was clear that she had a basic understanding of English and often answered questions unaided by the interpreter.  Ms Yang presented well and there was no suggestion that she was other than of good character.  It was her evidence that she intends to continue to reside in Australia and to purchase her primary place of residence in this country in the near future.  Ms Yang appeared to have a clear understanding of the nature of her application and what it meant to be a citizen.  Therefore, there is no reason why Ms Yang should not be granted citizenship.

10. For the above reasons, the Tribunal sets aside the decision under review and in substitution therefor determines that the discretion under subsection 13(4)(b)(i) of the Australian Citizenship Act 1948 should be exercised in favour of the applicant so that her time spent outside the country on business be deemed to be time spent within Australia.  The Tribunal further determines that the discretion under subsection 13(1) of the Act should be exercised in favour of the applicant so that she is granted Australian citizenship.

    I certify that the 13 preceding paragraphs are a true copy of the reasons for the decision herein of Deputy President DP Breen, Presidential Member

    Signed:         Emma Oettinger
      Associate

    Date/s of Hearing  2.3.01
    Date of Decision  2.3.01
    Rep. for the Applicant              Mr W Chen, Migration Agent
    Solicitor for the Respondent    Mr H Copley, Messrs Blake Dawson Waldron