Ho and Minister for Immigration and Ethnic Affairs [1994] AATA 516 (31 May 1994)

Last Updated: 19 September 2008

CITIZENSHIP - refusal of grant of citizenship - residential requirements - insufficient time spent in Australia - discretion to treat as present in Australia - guidelines - whether engaged in activities beneficial to Australia - more than private interests of individual - need for public interest - whether assistance to Australian company sufficient - beneficial activity must be substantial activity - spouse of Australian citizen - whether significant hardship or disadvantage - whether applicant “likely to reside” in Australia

Australian Citizenship Act 1948 s 13

Man Bun Lo and Department of Immigration and Ethnic Affairs Decision _ 9196, 21 December 1993
Re Lee and Department of Immigration and Ethnic Affairs 10 AAR 270
Minister for Immigration, Local Government and Ethnic Affairs v Roberts [1993] FCA 80; 113 ALR 151
Chen and Department of Immigration and Ethnic Affairs Decision _ 9336.2 March 1994
Re Dainty and Minister for Immigration and Ethnic Affairs 6 AAR 259

AAT Decision No 9509

ADMINISTRATIVE APPEALS TRIBUNAL )
) N93/751
GENERAL ADMINISTRATIVE DIVISION )

Re: JACKSON YEE TAK HO
Applicant

And: MINISTER FOR IMMIGRATION AND ETHNIC AFFAIRS
Respondent

DECISION

Tribunal : Mr BJ McMahon (Deputy President)

Date : 31 May 1994

Place : Sydney

Decision : The Tribunal affirms the decision under review.

BJ McMahon

Signed ..........................

BJ McMahon

ADMINISTRATIVE APPEALS TRIBUNAL )
) N93/751
GENERAL ADMINISTRATIVE DIVISION )

Re JACKSON YEE TAK HO

Applicant

And MINISTER FOR IMMIGRATION AND ETHNIC AFFAIRS

Respondent

REASONS FOR DECISION

31 May 1994 Mr BJ McMahon (Deputy President)

1. This is an application to review a decision made under s 13 of the Australian Citizenship Act 1948 ("the Act") on 5 October 1993 refusing the applicant's application for Australian citizenship.

2. Requirements for a grant of that status are set out in s 13(1) of the Act. The applicant complies with all the paragraphs of that sub-section, except for paragraphs (d) and (e) which set out the residential stipulations. These require presence in Australia as a permanent resident for periods amounting in the aggregate to not less than one year during the 2 years immediately preceding the date of application for citizenship, and a similar presence for periods amounting in the aggregate to not less than 2 years during the period of 5 years immediately preceding the date of application. At the time he made his application, Mr Ho had been present in Australia for 120 days in the previous 2 years and 207 days in 2 out of the previous 5 years.

3. Sub-section 13(1A) provides that the Minister is not to grant a certificate of Australian citizenship to a person who is not present in Australia, unless the person is a permanent resident and the Minister considers that the person is engaged in activities outside Australia that are beneficial to the interests of Australia. As the proceedings before this Tribunal are in the nature of a rehearing, and as Mr Ho was present during those proceedings, I consider that sub-section 13(1A) has no application to the present circumstances.

4. A similar test, however, arises under paragraph (b) of sub-section 13(4) which is in the following terms -

"sub-section 13(4) .....

(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."

5. The Minister has indicated the way in which his discretion under this sub-section will normally be exercised. The relevant guideline appearing in the publication "Australian Citizenship Instructions" is in the following terms -

"3.8.3 The Minister has decided that citizenship will normally not be granted to people seeking the application of his discretion under section 13(4)(b)(i) while they are overseas. Periods of overseas residence will only be treated under this section, as if they were periods spent in Australia, provided applicants are able to satisfy the Minister or his delegate that :

(a) either for an extended period or on a regular short term basis, they were required to work overseas by a Federal or State Department, semi-government authority or private employer, or they were self-employed and frequent travel abroad was essential to the successful operation of their business; or

(b) they were 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 by prominent persons associated with their field of endeavour e.g. people engaged in aid programs, artists and entertainers of world standing; and

(c) they had established a prior primary identification with Australia and intend to continue to live in Australia. Relevant factors in determining whether they identify permanently with Australia include whether they can show they have commitments here such as substantial assets, close ties with the business community, or family members established in the country and that those commitments outweigh those which they have in any other country."

6. There are regulations made under the Act which, being in a disallowable instrument, would have been subject to the scrutiny of appropriate Parliamentary committees. The "Australian Citizenship Instructions" from which this passage has been quoted appears to be no more than Departmental instructions to officers dealing with applications. The limitations of this particular guideline and the extent to which it departs from the statute were discussed in Man Bun Lo (Decision _ 9196, 21 December 1993). In accordance with the observations I made in that decision, I will be sparing in applying its provisions literally.

7. Mr Ho also seeks the exercise of the Minister's discretion under sub-section 13(9) as he is the spouse of an Australian citizen. As was pointed out by Gray J in Lee 10 AAR 270 the discretion contained in this sub-section is quite separate and distinct from the discretionary powers found in s 13(1) so that the requirements of sub-section (1) do not have to be satisfied by an applicant for citizenship under sub-section (9). Guidelines for the exercise of the discretion contained in this sub-section are in the following terms -

"4.2.7 Spouses, widows and widowers of Australian citizens.

The Minister's policy is that applicants in this category (section 13(9)(c)) must satisfy a delegated officer that :

• they are in Australia with resident status (see 6.2 for grant of citizenship to spouses overseas);
  
• where they are the widow or widower of an Australian citizen, the marriage was subsisting (ie the parties were living together as husband and wife) at the time the spouse died;
  
• where their Australian citizen spouse is alive, the marriage is subsisting (see definition above). A declaration to this effect must be signed by both parties (see Annex 4.1 this declaration has been included in revised form M124 of 3/88). Any claim that a marriage is subsisting where the parties are not living together should be referred for decision to an officer ASO 6 level or higher;
  
• they are of good character;
  
• if granted Australian citizenship, they are likely to reside, or to continue to reside, in Australia, or to maintain a close and continuing association with Australia;
  
• they have a basic knowledge of the English language and an adequate knowledge of the responsibilities and privileges of citizenship, unless the Australian citizen partner already has fulfilled these requirements and it is evident that there will be on-going support for the applicant spouse in these matters;
  
• they have been present in Australia as a permanent resident for 2 years in the 5 years immediately prior to the date of lodging their application, 12 months of which must have been within the 2 years immediately prior to that date, unless :
  

- they have lived in Australia as a lawful permanent resident continuously for the past year (an aggregate period of 4 weeks outside Australia during this period may be counted towards meeting this requirement); and

- they satisfy the delegated officer that they would suffer significant hardship or disadvantage if not granted citizenship.

4.2.8 Significant hardship or disadvantage.

The normal tests to be applied to establish significant hardship or disadvantage are that the applicant spouse :

• can establish that he/she has been refused employment solely on the grounds that the employment is restricted to Australian citizens and can demonstrate that alternative sources of employment are not reasonably available to him/her; or
  
• would be excluded from travelling internationally because he/she cannot obtain a passport or because he/she is excluded from travelling with immediate Australian family by reason of the nationality of the passport/travel document he/she holds or is entitled to hold; or
  
• would not otherwise be eligible to represent or be selected to represent Australia in a national representative team/group because Australian citizenship is a prerequisite to selection."
  

8. The applicant has had Australian permanent residence status since September 1990. Most of his time, however, has been spent in Hong Kong where he owns and lives in a small flat close to his place of employment, and where, as her only child, he looks after his widowed mother in her separate flat. The basis upon which the applicant seeks a favourable exercise of the Minister's discretion stems from his employment.

9. For some years he has been Ground Services Manager with the Hong Kong Aircraft Engineering Company Ltd (HAECO). HAECO is engaged in the business of commercial aircraft overhaul and maintenance. It is a substantial company, its principal shareholders being Cathay Pacific Airways Limited and Swire Pacific Limited. In 1992 it had a turnover in excess of HK$2billion and employed some 5400 people. Mr Ho's position of Ground Services Manager is a senior position within HAECO. At the time of his application, he was responsible for 300 staff. That number has since been reduced because of economic conditions to 200. He is also responsible for overseeing the operation and servicing of all ground services equipment including power units, trucks, scissor lifts and aircraft tractors. His immediate supervisor is Mr Rowden, Director of Engineering and a member of HAECO's board of directors.

10. Mr Ho asserts that in the course of his employment, he was engaged in activities beneficial to the interests of Australia. Part of his duties involves inviting, considering and recommending tenders for the purchase of aircraft ground service equipment. Mr Ho says that this aspect of his employment is beneficial to Australia as he has used his position to invite and recommend tenders from 2 Australian companies, Bliss Fox Manufacturing Limited and Simon Abbey Pty Limited. The total value of the purchases made by HAECO from these companies as a result of Mr Ho's recommendations is said to be US$674,333.

11. Until he decided to come to Australia, he said that he was not aware that Australian built equipment was available in his field. He was pleased to invite these companies, particularly Bliss Fox, to tender as it introduced an element of competition amongst HAECO's suppliers. About 35 per cent of his time at HAECO is spent on the tendering processes and in purchasing equipment. He has, of course, many other duties to perform in the senior position which he holds with the company. The value of Australian purchases is only a fraction of the value of purchases made by HAECO from other countries. The total value of aircraft ground services equipment purchased by HAECO over the same period during which the purchases from Bliss Fox and Simon Abbey were made was approximately A$9million. Mr Rowden said in a letter that the purchase of Australian equipment by HAECO came as a direct result of Mr Ho's evaluation and recommendations.

12. The second type of activity which Mr Ho says has been beneficial to the interests of Australia is the work he has done for Bliss Fox and Simon Abbey outside his normal work for HAECO. Evidence was given that he provided technical advice on the manufacture of aircraft tendering equipment to Bliss Fox. A new type of tractor without a tow bar is being developed. In giving Bliss Fox details of the trends in this type of equipment, he has been of assistance to that company and has enabled it to make other sales. He arranged for the establishment of an agency for Bliss Fox with HAECO's sister company, Associated Engineers Limited (AEL). This company is now the representative of Bliss Fox Manufacturing in China and Hong Kong. As a result of this agency arrangement, Mr Ho is credited by Bliss Fox with providing introductions into export markets in Asia which have led to Bliss Fox securing contracts for the sale of equipment in several Asian countries as well as to the provincial airlines in China. Written evidence was tendered from Bliss Fox detailing sales of tractors to Malaysian Airlines, China Airlines and Singapore Airlines. In fact the evidence from Mr Stinson of Bliss Fox Manufacturing was that Mr Ho's association with his company had helped it to gain approximately 30 per cent of the South East Asian aircraft tow tractor market.

13. It was submitted on behalf of the applicant that these activities of Mr Ho were beneficial to the interests of Australia because they resulted in technical improvements to Australian manufactures, introductions to export markets, export orders of about A$4million, establishment of important Asian agency arrangements, a significant change in the buying practices of his own employer in favour of Australian equipment, and expansion of Australian manufacturing activity. It was submitted that one could reasonably assume some local employment growth as a consequence.

14. Mr Stinson gave evidence on the hearing of the application. His company is Australian owned and based and has some 80 employees. It carries out automotive engineering at its Adelaide plant. In Sydney, it manufactures aircraft handling equipment, the sales from which represent some 40 per cent of the company's annual turnover of $50million.

15. He gave evidence of the way in which his relationship with Mr Ho had developed. He had previously approached AEL to act as the company's agent in China, but it was not until Mr Ho's representations made on behalf of Bliss Fox that AEL agreed to undertake this agency. As a result of Mr Ho's assistance, Mr Stinson estimated that some 40 to 50 Australian jobs that would otherwise have been lost during the recession, were saved. He said that his company has a commercial arrangement with AEL but that he has no formal arrangement with Mr Ho. Mr Ho's activities, he said, were based on friendship and on the satisfaction that Mr Ho derived in obtaining competition for the tenders to his company. Not only has Mr Ho served the interests of Bliss Fox assiduously, he said that he had given Mr Ho's name as a reference to new buyers and that many new contacts had arisen as a result of his association with Mr Ho.

16. Mr Ho in evidence said that outside his job with HAECO, he spends most of his Saturdays and Sundays and non office hours helping to sell Bliss Fox products. This involves entertaining Chinese delegates and executives from other airlines. He travels with AEL executives to China frequently on weekends and in the evenings, when all his expenses are paid. He said that he knows most of the airlines staff and can easily talk to them. He considers himself an independent consultant. Both he and Mr Stinson denied that he received any commercial benefit from all these efforts made on behalf of Bliss Fox, although he agreed that there was a possibility of his being employed by Bliss Fox when he finally took up actual residence in Australia. He was aware of the possibility of a conflict of interest and therefore avoided any suggestion of payment. He had, in fact, discussed this with the personnel manager of his company and was told that so long as there was no corruption and that the reputation of HAECO was not put at risk, the company would have no objection to his extra curricular activities. AEL has the same chairman and directors as HAECO. Any work which Mr Ho did on behalf of AEL, he felt, at the same time benefited his direct employer.

17. A suggestion was made by the advocate for the respondent, that Mr Ho's position was in some way compromised and that irrespective of his dealings with officers of AEL and with his own personnel manager, he was in a conflict of interest position which tarnished the value that might be attributed to any work he did. It was submitted that it could not be beneficial to the interests of Australia to have somebody benefiting an Australian company in such a way. I consider that there is no substance in this submission. The test of whether activities are beneficial to Australia is an objective test. If Mr Ho was motivated by possible employment in the future by the Australian company, then that does not detract from the value of any activity based upon such hopes, if indeed that activity was beneficial to the interests of Australia. Similarly it was suggested that in relation to the exports by Bliss Fox to HAECO the purchases were made for the benefit of HAECO in the course of Mr Ho's duties as that company's employee. If it should be found that his commercial activities were in fact "beneficial to the interests of Australia", it seems to me that it matters not whether they were also beneficial to the interests of his employer. As this is a public enquiry, I consider it important to state, in any event, that there is no evidence of any impropriety on Mr Ho's part in the way in which he has encouraged purchases by his own company from Bliss Fox and in representation of that Australian company by AEL. There is no evidence that his activities were carried out without the knowledge and approval of his employer, or that those activities constituted conduct which, in any way, departed from the commercial standards obtaining in Hong Kong and which were described by Mr Ho in his evidence.

18. The other basis upon which Mr Ho seeks a favourable exercise of the Minister's discretion is in the terms of sub-section 13(9)(c).

19. Mr Ho's wife, Lucy, his daughter, Elsie aged 21, and his son, Freddie aged 15, are all Australian citizens, having obtained a grant in June 1993. Mr & Mrs Ho own a house at 19 Manchester Road, Gymea, which is now valued at approximately $330,000 and is subject to a mortgage of approximately $120,000. In that home, live Mrs Ho and the 2 children. Elsie matriculated from Gymea Technology High School in 1992 and is currently a science student at the University of Technology. Freddie is currently in Year 11 at school in Gymea. Mr & Mrs Ho also own a unit at 5/43 Tullarra Road, Gymea, which is valued at approximately at $150,000 and which is subject to a mortgage for $90,000. A calculation of the value of their assets in Australia compared with the net value of Mr Ho's assets in Hong Kong shows that more than 90 per cent of the family assets are situated in Australia. Neither Mr nor Mrs Ho have any assets outside of Australia or Hong Kong.

20. Mr Ho does not propose to return to Australia until "possibly the end of 1995 or the beginning of 1996". Because of economic conditions, he has failed to obtain a job in Australia comparable with his own with either Qantas or Ansett. His is a specialised job and he would not want to be downgraded if possible. He is a member of the Institute of Automotive Mechanical Engineers in Australia. He is studying for his Australian private pilot licence to facilitate his integration into the Australian aircraft industry. He said that even if he is unable to obtain a job with Bliss Fox, he will come in the years stipulated. He finds it inconvenient being separated from his family and communicating only by telephone and fax each day. Nevertheless he feels obliged to look after his elderly widowed mother who, at the age of 80, is suffering from failing eye sight. He also of course wishes to retain his present position with HAECO.

21. Mrs Ho has many relatives in Australia, including 3 cousins and an uncle. Mr Ho has no relatives either in Australia or in Hong Kong, except for his mother. He said that he has many friends in this country, a large number of whom had migrated from Hong Kong. He regards Australia as his home, even though he is not physically present here for most of the time. He would, he said, suffer a psychological hardship if he is deprived of a grant of citizenship. He is the only member of his family without that status. He does not feel confident when promoting Australian products because he is not carrying an Australian passport and does not feel that he is speaking on behalf of Australia. He has no difficulty, however, in entering China and has a continuing re-entry permit. He travels with AEL executives into that country quite regularly.

22. I will deal first with the request for the Minister's discretion to be exercised in Mr Ho's favour under paragraph 13(4)(b). The meaning of the phrase "activities beneficial to the interests of Australia" was discussed briefly by Einfeld J in Minister for Immigration, Local Government and Ethnic Affairs v Roberts [1993] FCA 80; 113 ALR 151 at 156. His Honour there 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."

23. So far as I am aware, this is the only judicial consideration which the phrase has received and it therefore has the force of law. To the extent that the guidelines are inconsistent with these observations, they must be disregarded.

24. I pointed out in Chen (Decision _ 9336 2 March 1994 at paragraph 27) that the context of the Act indicates that s 13(1)(d) is intended to ameliorate the application of s 13(1) but only in exceptional circumstances. As His Honour has pointed out, the exception must be the engaging in some activity of a public interest nature. The activities upon which Mr Ho relies, namely the securing of contracts for Bliss Fox with HAECO and the work done in representing Bliss Fox in his spare time, can hardly be said to be work having a public interest in that sense, even a public interest of a general or non-specific character. There is implicit in his efforts on behalf of the company an expectation (or a possibility as he put it) that when he finally takes up residence in Australia, he will be employed by Bliss Fox. Whether or not he has a personal interest in the work carried out on behalf of that company, it seems to me that the nature of the work, involving as it does, the promotion of the private fortunes of Bliss Fox is not the sort of activity of a public nature contemplated by the section.

25. It is not necessary to resort to the guidelines, the inadequacies of which I discussed in Man Bun Lo, to come to the conclusion that the activities carried out by Mr Ho were essentially of a private nature. It can not be said that commercial activities designed to promote the sales of one or two companies are activities of a kind intended to be covered by the ameliorative provisions of this paragraph. Something more is necessary, and that something must be of a public character.

26. A submission was made on behalf of the respondent that, in any event, Mr Ho's activities could not fall within the scope of those contemplated by the paragraph as his work on behalf of the 2 Australian companies (Simon Abbey only to a quite minor extent see the letter from that company on page 79 of the s 37 documents) took up only a fraction of his working time. The evidence was that only some 35 per cent of his time with HAECO was spent in the tendering process and of that time, only a small amount was spent in connection with tenders from the Australian company. Not all his weekends and evenings were spent on Bliss Fox's behalf. As Mr Ho put it, he was available and ready to carry out promotional work for the Australian company if called upon during those times.

27. The paragraph is intended to provide some flexibility in the calculation of the periods referred to in paragraphs 13(1)(d) and (e). It is unlikely that in the application of the Minister's discretion, a period may be treated as a period of presence in Australia only when the applicant is engaged for 24 hours per day, 7 days per week in activities beneficial to the interests of Australia. It is more likely that the activities referred to should be the substantial activities of the applicant for limited periods, being intervals intended to fill in the gap between actual presence in Australia and the requirements for presence set out in the statute. The discretion contained in sub-section 13(4) is not intended to offer an alternative method of complying with paragraphs 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.

28. The wording of sub-section 13(9) gives no indication of the basis upon which the Minister's discretion ought to be exercised in the case of a person who is a spouse of an Australian citizen. The "instructions" however, set out quite detailed rules that must serve for guidance. As the wording of the section is so sparse, it can not be said that any of the guidelines relating to this particular sub-section are in conflict with the Act. I see no reason why the weight normally given to guidelines should be withheld in the present circumstances. In those cases where the guidelines were found to be unsuitable (for example,, Roberts and also Re Dainty 6 AAR 259) the circumstances were quite anomalous. There is nothing in the present facts to indicate that a departure from the guidelines would be appropriate.

29. The guidelines require continuous residence for one year, together with a demonstration of significant hardship or disadvantage. None of the material put before me can be said to amount to significant hardship or disadvantage. Any personal inconvenience that Mr Ho feels through the separation from his family is an inconvenience of his own choosing. So also is the fact that he has not lived in Australia for a year prior to his application, or even for a year prior to the hearing of this application before the Tribunal. Since the application for citizenship was made in September 1993, he has been in this country only for another 30 days. A finding that the Minister's discretion ought not to be exercised in his favour in the present circumstances does not preclude him from reapplying for citizenship when he does have the necessary residential qualifications. There is no reason to regard his situation as so exceptional as to dispense with a requirement which is seen by the Act to be basic to entitlement to citizenship.

30. Mr Ho has demonstrated close links with Australia through the settlement of his family and friends in this country and through the acquisition of assets. If he were able to satisfy the residential requirements, I have no doubt that he would be welcome as a citizen of this country. However, he chooses to live abroad. His plans for future residence are quite uncertain. I am not satisfied that he would meet the requirements of paragraph 13(1)(j). This requires the Minister (and therefore this Tribunal) to be satisfied that 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. I am satisfied that he would maintain a close and continuing association with Australia through his family. I am not, however, satisfied that he is "likely to reside" within the meaning of the terms of the paragraph.

31. It can not mean "likely to take up residence in 18 months or 2 years time" or "likely to reside some time in the indefinite future if economic conditions permit and if a suitable job can be found". The juxtaposition of the phrase with the opening phrase of the paragraph, indicates that the Minister must be satisfied that the applicant is likely to reside in Australia immediately, or very soon after, being granted a certificate of Australian citizenship. In my view, that has not been shown in this case. Indeed the positive evidence of Mr Ho is that this requirement, as I understand its meaning, will not be met. This in itself is a bar to the grant of Australian citizenship to him. There is no Ministerial discretion directed to the application of paragraph 13(1)(j), apart from the general discretion to be found in the opening words of the sub-section, which is reflected in "Instructions" prepared within the Department. Notwithstanding anything contained in these instructions, the evidence would not permit any degree of satisfaction concerning the likelihood of Mr Ho's residing in this country immediately after the grant of a certificate of Australian citizenship or within any reasonable time thereafter.

32. The decision under review is therefore affirmed.