Chang and Minister for Immigration and Citizenship [2009] AATA 14 (12 January 2009)

Last Updated: 12 January 2009

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2009] AATA 14

ADMINISTRATIVE APPEALS TRIBUNAL )

) No 2007/6265

GENERAL ADMINISTRATIVE DIVISION		)
	Re		ANN NEE CHANG

Applicant

And

MINISTER FOR IMMIGRATION AND CITIZENSHIP

Respondent

DECISION

Tribunal

Ms G Ettinger, Senior Member

Date 12 January 2009

Place Sydney

Decision

The Tribunal affirms the decision under review.

............[sgd]...................
Ms G Ettinger
Senior Member

CATCHWORDS

Citizenship – application for Australian Citizenship made under the 1948 Act, and determined under 2007 Act – held that there was no discretion to consider application other than under 2007 Act – Applicant working in HK – present in Australia for only 1 day in 2 year period prior to application and only 23 days in 5 years prior to application – held that Applicant’s activities not beneficial to Australia - held that Applicant not likely to reside in Australia or to maintain a close and continuing association with Australia if application were to be approved – decision under review affirmed.

Australian Citizenship Act 2007, ss 21(2), 22(1) and (9)

Australian Citizenship (Transitionals and Consequentials) Act 2007, Items (2), (7) and (8) of Part 1 of Schedule 3

Australian Citizenship Instruction, Chapter 5

Drake v Minister for Immigration and Ethnic Affairs (1979) 2 ALD 60

Minister for Immigration, Local Government and Ethnic Affairs v Roberts [1993] FCA 80; (1993) 29 ALD 656

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

Re McCarthy and Minister for Immigration, Local Government and Ethnic Affairs [1993] AATA 166; (1993) 30 ALD 447

Re Shen and Minister for Immigration and Citizenship [2008] AATA 906

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

REASONS FOR DECISION

12 January 2009	Ms G Ettinger, Senior Member
BACKGROUND

1. The Applicant, Ms Ann Nee Chang, a Chinese citizen of Hong Kong has been a permanent resident of Australia during two periods, from 4 March 1999 to 4 May 2004, and ongoing from 2 June 2005. She seeks citizenship, and accepts that she cannot meet the residency requirements, so sought to convince the Minister for Immigration and Citizenship that she qualified under the discretion under which the Minister and the Tribunal, standing in his shoes, may treat a period of absence as one in which Ms Chang was in Australia. Ms Chang claims she has been engaged in activities beneficial to Australia.
2. In support of her application at the Tribunal for review of the decision of the Minster, she described certain business activities and connections her company in Hong Kong, Luckyland Development Ltd (Luckyland), has with Albox Pty Ltd, (Albox), an Australian company. The activities include the signing of three Memoranda of Understanding between the two companies in 2003 and 2004 and the purchase of shares and provision of capital amounts to the company by Ms Chang. She also promotes Albox products in Europe and Asia.
3. We were mindful that Ms Chang lodged her application for citizenship during the currency of the Australian Citizenship Act 1948, but that that legislation has now been amended, and pursuant to the transitional provisions for the Australian Citizenship Act 2007, the application has to be decided under the new regime.
4. I accepted that Ms Chang did not meet the residency requirements, and considered whether her activities and those of Luckyland could be classified as being engaged in activities beneficial to Australia or that she 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.
5. I was not so satisfied, and the application must fail. My reasons follow.

ISSUE TO BE DECIDED

6. The issue before me was whether Australian citizenship can be conferred on Ms Chang.
7. Ms Chang, who is a permanent resident of Australia, accepts that she cannot meet the tests of residency for citizenship. Accordingly, I had to consider whether to exercise the discretion in the legislation to treat a period of absence as one in which Ms Chang was present in Australia as a permanent resident, and to consider whether I am satisfied that she was engaged in activities during that period that I consider to be beneficial to Australia.
8. I also considered whether Ms Chang is likely to reside, or to continue to reside, in Australia or to maintain a close and continuing association with Australia.

THE LEGISLATIVE CONTEXT

9. The Australian Citizenship Act 2007 (the 2007 Act) and the Australian Citizenship (Transitionals and Consequentials Act) 2007, (the Transitional Act), came into effect on 1 July 2007. The 2007 Act repealed the Australian Citizenship Act 1948 (the 1948 Act). Section 7(2) of Schedule 3 of the Transitional Act provides that applications made under section 13 of the 1948 Act which were not yet decided at the commencement of the 2007 Act shall be taken to be an application to become an Australian citizen made under section 21 of the 2007 Act.
10. Ms Chang applied for citizenship on 26 June 2006, and the decision of the delegate refuse her was made on 28 November 2007. Accordingly, the 2007 Act and the Transitional Act apply.
11. The Australian Citizenship Instructions 2007 (the Citizenship Instructions) provide guidance in relation to the interpretation of, and the exercise of powers under the 2007 Act, and are applied as such.

CONSIDERATIONS

12. I have already noted above that Ms Chang’s application must be determined under section 21 of the 2007 Act which follows as relevant:

“(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).
...”

13. Subsections 21(2)(a), (b) and (h) are not in contention in Ms Chang’s case; subsections 21(2)(d), (e) and (f) do not apply to Ms Chang, so that the only relevant subsections in contention are 21(2)(c) and (g).
14. I was mindful that the Citizenship Instructions provide guidance in regard to the decision I have to make.

“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.”

Residency Requirements

15. Ms Chang accepts that she cannot meet the test for the residency requirements, because she was in Australia only 23 days as a permanent resident in the five years prior to her application for citizenship, and one day in the two years prior to the date of application (Exhibit R2), and sub-item 7(8)(1) of Schedule 3 of the Transitional Act (section 21 of the 2007 Act). Accordingly I had to consider the discretion in sub-item 7(8)(4) and section 22 of the 2007 Act.
16. Item 7(8)(4) of the Transitional Act states as follows:

“Item 7(8)(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.”

“Beneficial to Australia” and “beneficial to the interests of Australia”

17. Mr Galloway, Ms Chang’s representative, pointed out that in the 2007 Act, the reference is to: “the person was engaged in activities during that period that the Minister considers to be beneficial to Australia” as compared to the equivalent phrase in section 13 of the 1948 Act, which was: “engaged in activities that the Minister considers beneficial to the interests of Australia”. He referred to the changed phrase in the amended legislation, and the use of the previous wording in the policy guidelines and Citizenship Instructions which still refer to the phrase, “beneficial to the interests of Australia”.
18. He submitted that the new Act imposes something less of an onus on the Applicant to demonstrate that she is serving the overall interests of Australia. He also submitted that the Citizenship Instructions did not take account of the subtle change in language in the 2007 Act, and that accordingly, the departmental decision maker had not assessed the matter in accordance with the current legislative regime.
19. I am mindful of Mr Galloway’s submissions and note that the hearing before this Tribunal is de novo, and that I must decide the matter on the law and all the evidence before me, and applying the 2007 Act. There is no good reason why I would not take the Citizenship Instructions into account, and I shall do so (Drake v Minister for Immigration and Ethnic Affairs (1979) 2 ALD 60).
20. In coming to a decision, I am also mindful of the Respondent’s argument which was that the new Act does not contain a discretion to treat a period as one in which an applicant was present in Australia where that person was not in fact present, but was engaged in activities beneficial to Australia. The revised Explanatory Memorandum to the Transitional Act states that by inclusion of sub-item 7(8) it was intended that:

"...people who have made an application, which is undecided, need only meet the residence requirements contained within the Australian Citizenship Act 1948."

21. Therefore, the Respondent contended that the inclusion of sub-item 7(8)(4) of the Transitional Act was only intended to preserve the same test as was in place under the 1948 Act, and that it was not intended to create a new lesser onus on an Applicant.
22. Ms Weston who appeared for the Respondent contended that the word “interests” in the discretion in the 1948 Act did not infer anything more than “benefit to Australia”, as is seen by the use of both the phrase “benefit to Australia” and “beneficial to the interests of Australia” interchangeably in cases such as Minister for Immigration, Local Government and Ethnic Affairs v Roberts [1993] FCA 80; (1993) 29 ALD 656:

“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 section requires some objective benefit to Australia...” (emphasis added)

23. The Respondent further contended that this construction is supported by the Citizenship Instructions which refer to a number of cases concerning the residence requirements in the 1948 Act as guidance for the interpretation and application of the provisions of the Transitional Act which apply to applications made, but not decided before 1 July 2007.
24. I have consulted the legislation and the Explanatory Memorandum, and have found the Respondent’s argument persuasive. I am satisfied that the two phrases, activities which are “beneficial to Australia” and “beneficial to the interests of Australia” are very similar, and that the former is not intended to, and does not import a lesser test, (sub-item 7(8) of the Transitional Act and Roberts).

Consideration of Whether the Applicant’s Activities are “Beneficial to Australia”

25. I was mindful that in considering whether Ms Chang’s activities are “beneficial to Australia”, I would take into account as a guide, the Citizenship Instructions which state as follows in relation to “Activities beneficial to the interests of Australia”:

“In assessing whether activities are beneficial to the interests of Australia, consider the following:
It requires ‘something in the nature of activities which provide some advantage to Australia, whether commercial or otherwise. The concept necessarily connotes some public interest of Australia...and means more than the private interests of the (applicant). The section requires some objective benefit to Australia’ (Federal Court in Roberts.)
It requires ‘something in the nature of activities which achieve recognition of Australia or of Australian achievements or commercial advantage for Australia...(I) 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).”

26. In support of her case the Applicant gave evidence about her studies in Australia, being a Bachelor of Commerce with a major in accounting. She told me that she is a CPA, and certified information systems auditor in Hong Kong. She met her husband, a fellow student, also from Hong Kong, in Australia, while they were at University here. He now contracts to Australian companies from time to time, and was at the time of the hearing, in Australia for a period of some weeks.
27. Ms Chang argued that her activities with Albox Australia Pty Ltd (Albox), were beneficial to Australia. She submitted as follows in her Statement of Facts and Contentions.

1) Albox Australia Pty Ltd (“Albox”) is an Australian owned and operated product development company specializing in the design of leading edge records management products - office, archival and photographic. Albox holds several patent applications, such as nylon mechanisms for ring binders and storage boxes. Polypropylene is used in most of its products. Marketing of Albox products was focused in Australia towards the local consumer market. The Albox management team is led by Darby Johns the founder of the company. He is a former Senior Trade Commissioner with the Australian Government and also former Chair of the State Record Council of South Australia. Neil Eckermann is the National Sales Manager and Mervyn Taylor is Administration Manager. Richard Tyrcha was the ex-National Sales Manager.

2) Luckyland Development Ltd (“LDL”) of Hong Kong is a supplier, importer and exporter of office supplies and stationery. LDL has solid experience in international sales and marketing married with extensive networks in China and technical expertise in polypropylene products. LDL is led by Ms Annie Chang the Managing Director. Mr. Andrew Chang is the Chairman. Shareholders include Annie Chang, Andrew Chang (Annie’s father) and Larry Young (Annie’s husband). Please see T5 and pages 130-138.

After a meeting between Darby John, Annie Chang and Andrew Chang, in Hong Kong, on 3 December 2003 an Memorandum Of Understanding [MOU] was signed between Albox and LDL [See T5 page 144]. LDL then began to market Albox’s product internationally. LDL has over 20 years export experience, enabling them to assist Albox to explore the international market, and extending Albox’s market segment.

Per the further MOU of November 2004 [See T5 page 142 and 143], LDL now represents Albox in the Asian market and LDL is authorized to sell Albox’s product internationally. LDL marks up on sales as a return to Albox. Annie Chang of LDL has since attended numerous international trade shows to promote Albox’s products [see T5 and page 39 and Folder A references].

On 21 Dec 2004, Annie Chang personally took up 500 shares in Albox to support the working capital of the company [see T5 page 97]. The share price was at a premium of AUD$55 (as opposed to Nett Asset Value of AUD$23).

After the trade fair LDL [per a Memorandum Of Agreement [MOA] of 21 March 2005 [see T5 and page 140-141] and an Addendum of 18 April 2005 [see T5 and page 139]] loaned interest free the full amount of a new storage box’s mould costs for orders received during the trade fair. LDL provided this interest free loan to Albox for the full amount of the mould costs. Otherwise, the export orders generated during trade fair could not be realized. The loan was to be repaid by deducting returns to Albox. LDL has also loosened its credit terms in respect of this arrangement to enhance shipment flexibility.

Ms Chang has continued to work vigorously for the Australian business as per the evidentiary materials enclosed particularly the 1298 pages of email correspondence on the CD [see page 5 of the T documents index; and the list of activities detailed in T5 and pages 413-423].

28. Ms Chang told me that she is a 20% shareholder in her family company Luckyland, which was founded by her father some 20 years ago. Ms Chang said that it has a simple structure, and that her father is the Chairman. She told me that she has changed the focus of the company from mainly wholesale activities to international marketing. She told me that it is focused on stationery products, and on promoting Albox products in the Middle East, Asia and Europe.
29. Ms Chang told me that back in 2003, she wanted involvement in Australia, and was searching for an Australian business, so made contact with Albox at that time. She emphasised she is actively involved in marketing Albox products, and travels to China and other places to attend to this business as well as attending trade fairs such as Paperworld in 2004, 2005 and 2006, and other fairs and exhibitions in China as well as the Hong Kong International Stationery Fair 2005.
30. I was satisfied from the evidence that when Ms Chang attends trade fairs and exhibitions, she promotes both Luckyland and Albox products. However, the signage on the front of the booth in several cases has clearly indicated Luckyland as the booth holder (both in Chinese and in English), with Albox signs and products displayed inside, and no mention of Australia, so that the commercial aspects of Luckyland are the foremost consideration. Ms Chang told me that Luckyland bears the cost of the advertising which I accept it has done on behalf of Luckyland and Albox, and that she conducts direct mail campaigns. I am not critical of any of those activties, but make comment that those are indicia of private interests, and that there is not even a hint of any benefit to Australia.
31. Ms Chang gave evidence about receiving royalties from Albox. I do not find that of great significance in the decision I have to make, but note from the Albox Annual Report for 2005, and the Statement of Financial Performance for that year, that until 2005 Albox still had UK and Hong Kong subsidiaries.
32. As to contact with Albox; Ms Chang told me that she emails and telephones Mr Darby Johns at Albox regularly. Ms Chang was however unable to indicate what percentage of her time she spends on Luckyland, and what percentage of her time she spends on Albox business. In that regard I note also that Ms Chang tendered a disc with a large number of emails which is Exhibit A3. I gave her the opportunity of submitting further details of the content of Exhibit A3, which she did shortly after the hearing, by producing a list of certain of the emails, and by providing photographs of her attendance at trade fairs. I find that she may email quite often, but my understanding is that the communications are short and do not take much of her working time.
33. In the interests of procedural fairness, I gave the Respondent the opportunity of making any submissions it wished in regard to the Applicant’s further documents. Ms Weston informed the Tribunal that the Respondent did not wish to make submissions on the further documents.
34. Ms Chang also gave evidence that she researches the market, keeps an eye on quality control, and takes customers to the factory making Albox products in China. Ms Chang said that as a result of that promotion, Albox now has customers in the Middle East, Europe and Japan.
35. Ms Chang told me that she has provided financial support to Albox, (incorporated in Australia in 1989), by way of a personal investment of 500 shares in the company at $55 each, which she made in November 2004. This was to assist the company because it had cash flow problems. She also provided funds used to pay for moulds in China. Ms Chang has had no dividend payout, and is not an employee of Albox. She noted it is running at a loss, but said that when a profit was made, she would receive a dividend.
36. No one from Albox gave evidence at the hearing. However, I had before me a statement of Mr Darby Johns, the Managing Director dated 23 May 2008 as Exhibit A1. In it, Mr Johns praised Ms Chang’s assistance to his business, told me that the Albox Archive Box won an Australian Industry Design Award in 2003, and that Ms Chang had assisted with obtaining customers in Portugal, Italy, the UK, and China. He indicated his focus was on environmentally friendly products. His written evidence was not challenged in any way by the Respondent.
37. In reply to questions regarding how she, personally, and her activities achieved recognition of Australia or of Australian achievements, or commercial advantage for Australia. Ms Chang replied that Albox’s environmentally friendly products made of polypropylene which she promotes internationally, assist Australia. Ms Chang also indicated when questioned that market acceptance internationally of Albox products had not yet grown significantly. Mr Galloway who appeared on her behalf submitted that the benefit to Australia was in the environmental, green image, and submitted that even though the volume of sales for Albox products was modest, there was no requirement as part of Ms Chang’s argument, that it be of a certain size.
38. I was mindful that it is the Applicant’s personal contribution rather than that of an employer or company which is of relevance in the assessment of what is “beneficial to Australia”. I was satisfied that in this case Ms Chang is a member of a small family company, and that she is in fact the Managing Director, so that her contribution and Luckyland’s may be virtually synonymous. I am satisfied that that aspect of things is not a big issue in this case.
39. Ms Weston who appeared for the Respondent submitted that the activities of the Applicant have been predominantly in the interests of herself and her Hong Kong company Luckyland. She referred to Re Tinamisan and Minister for Immigration and Multicultural Affairs (1996) 43 ALD 349, where I noted the Tribunal held that Mr Tinamisan was not entitled to Australian citizenship. I noted that in contrast to Ms Chang, Mr Tinamisan had spent considerable time in Australia, and moved to Cambodia in 1995 with his banking job through which he claimed he assisted Australian business people and in the reconstruction of Cambodia. I noted he was held to have been engaged predominantly in the private interests of his employer and himself, and not provided any objective benefit to Australia.
40. Ms Weston also referred me to a leading authority on the interpretation of the phrase, “beneficial to the interests of Australia”, being the Federal Court decision of Minister for Immigration, Local Government and Ethnic Affairs v Roberts where Einfeld J said:

“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...” (emphasis added)

41. I noted also from the Citizenship Instructions that to qualify, it requires "something in the nature of activities which provide some advantage to Australia, whether commercial or otherwise. The concept necessarily connotes some public interest of Australia...and means more than the private interests of the (applicant). The section requires some objective benefit to Australia" (Roberts).
42. Ms Weston submitted that this statement had been considered and applied by the AAT on a number of occasions, and submitted that the following propositions were relevant to the decision under review.
    • 1.1 Benefits to both Australia’s interests, and to private interests, are permitted to coexist (Kao and Minister for Immigration and Ethnic Affairs [1993] AATA 360; (1993) 30 ALD 916). However, activities predominantly in furtherance of the private interests of the Applicant and his or her employer are not activities beneficial to the interests of Australia (Tinamisan v Minister for Immigration and Multicultural Affairs (1996) 43 ALD 349).
    • 1.2 Cases such as McCarthy v Minister for Immigration Local Government and Ethnic Affairs [1993] AATA 166; (1993) 30 ALD 447 and Tinamisan (supra) have rejected the broad notion that export activities are by their very nature beneficial to the interests of Australia. A person seeking the exercise of the discretion must "demonstrate, by specific evidence what those benefits to Australia were, and establish a nexus between the activities and the benefits said to have been gained" (see for example Tinamisan, per Deputy President Chappell at [28]).
      
43. Ms Weston noted that the Applicant submitted a significant body of evidence purporting to show that whilst in Hong Kong, she has been engaged in activities which are beneficial to Australia. She contended on behalf of the Respondent that Ms Chang’s activities had been predominantly in the interests of herself, and her Hong Kong company, Luckyland. She submitted that there was very little evidence of any clear nexus between the Applicant's overseas activities and the claimed benefit to Australia in this case. She submitted further that the environmental consciousness of Albox was too remote from the Applicant's activities to be considered to be an aspect of the activities the Applicant had engaged in. Furthermore, Luckyland's involvement with Albox was principally designed to benefit Luckyland, not the Australian environment.
44. Unfortunately, I could only find from the evidence before me that the Applicant, in carrying on the business of Luckyland, spent a small part of her time and effort on the marketing of Albox products, and was satisfied that this was in the interests of Ms Chang and Luckyland, rather than Australia. In that regard I noted, for example, a press release prepared by Ms Chang for Paperworld 2006 regarding various stationery products which is at page 171 of the T-documents, and acts as further confirmation that it is Luckyland which is Ms Chang’s major interest. The last three sentences read as follows: “The education market is naturally very concerned about our environment. They will be pleased to learn that no tress (sic, trees) were cut down and no animal by-products are used in the manufacture of our recyclable products. The Albox’s products are marketed internationally and manufactured by Luckyland Development.” Ms Weston submitted, and I agreed that the thrust of the press release was to imply environmental benefit to Luckyland, and not in any way to Australia. Further, the press release contained inaccuracies and was misleading because from the evidence I had before me, Luckyland does not manufacture Albox products as stated in the press release. There is a further press release in Chinese on the previous page which was not translated at the hearing, so I make no comment on that.
45. Ms Chang also argued that because she had studied in Australia and spoke both English and Chinese and understood multiculturalism, that was beneficial to Australia. I consider rather that that is beneficial to Ms Chang and her family, and for the purposes of conducting business. The Applicant holds shares in Albox because she must have seen some benefit to prop Albox up and provide funds to it when it faced cash flow problems, which I understand from the evidence it still does. That is a private concern, and of no particular benefit to Australia. I can discern only a private, rather than a public interest.
46. I noted that in Re McCarthy and Minister for Immigration, Local Government and Ethnic Affairs [1993] AATA 166; (1993) 30 ALD 447, Deputy President McMahon as he then was, found that the Applicant there, who argued that the activities beneficial to Australia were projected by his consultancies into the future, did not meet the test for engaging in activities beneficial to the interests of Australia. I find that Ms Chang who has been engaged with Albox since 2003/4, spends a certain part of her time (which she could not quantify), promoting Albox products, but acknowledges that the uptake of Albox products overseas is still small.
47. A future benefit to Australia might arise if and when the company is able to promote a green, environmentally desirable product for Australia. For the moment, however, I am satisfied that any such benefit, if it exists at all, is very remote, and is not something in the nature of activities which achieve recognition of Australia or of Australian achievements, or enhance the reputation of the Australian parent company or Australian companies in general. I am satisfied that the activities of Luckyland and Albox are a private interest, do not promote the public interests of Australia, and cannot satisfy the criteria required for being designated as being beneficial to Australia.
48. In the terms of Roberts, I am not satisfied that the business generated between Ms Chang, Luckyland, and Albox was of benefit to Australia in an objective sense. The claims that Australia would benefit from the green image of Albox products may in the future become a public interest, but I am not satisfied that Ms Chang, Luckyland and Albox have made any such mark yet.
49. The connection and business between the two companies is purely a commercial one in the private interests of Ms Chang, and does not qualify as being beneficial to Australia. The case law suggests that just because there are exports, they are not by their very nature not accepted as beneficial to Australia (Tinamisan).
50. The only other factor requiring consideration in section 21 of the 2007 Act in relation to Ms Chang is section 21(2)(g).

Australian Citizenship Act 2007 (Cth) Section 21(2)(g) - Likelihood of Residing or Maintaining Close and Continuing Connection with Australia

51. I have already held in the paragraphs above that Ms Chang does not meet the tests for section 21(2)(c) of the 2007 Act, and I am satisfied that her activities are not beneficial to Australia in terms of the discretion afforded in Item 7(8) of the Transitional Act. However for the sake of completeness, I am considering section 21(2)(g) of the 2007 Act which states as follows:

"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;”

52. Ms Chang told me that she visits Australia almost every year, but deferred applying for citizenship because of the Asian financial crisis some years ago. She says that she has close ties to Australia because she has a multicultural education and focus, and speaks both Chinese and English. I accept that she has had a long association with Australia, that is, since she was a student. Her husband was also a student in Australia, and contracts to Australian companies. She told me that she has $50,000 in a bank account in Australia and holds a gold driver’s licence, but does not own any real estate and stays in a hotel when she visits. Ms Chang said that her plans were to migrate to Australia with her children in two to three years time when they were school age. She claims as discussed in the section above, that her close association is her continuing business interest in Australia and frequent communication with Albox.
53. Ms Weston submitted that it is clear from the tendered material that the Applicant spends the vast majority of her time in Hong Kong, and she has at no point resided in Australia. Moreover, there has been no evidence provided to suggest that she would be likely to do so in the future. I am mindful that as a student Ms Chang spent time in Australia but, as noted above, has spent only a few days here in the relevant period.
54. Ms Weston submitted that the Applicant has a husband and daughter in Hong Kong, and that this makes it even less likely that she will reside in Australia in the future. There has been no evidence provided to suggest that her husband or daughter are Australian citizens, nor that they have any visa on which might allow them to reside in Australia.
55. I have noted that the 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....”

56. The Respondent contended that there was a complete absence of evidence in relation to the likelihood of the Applicant residing in, or maintaining a “close and continuing association” with Australia. She submitted that the only link to Australia was Ms Chang’s company's business relationship with the Australian company Albox. She submitted that on the evidence the Applicant had failed to satisfy section 21(2)(g) of the 2007 Act, and that the application should be refused on that basis.
57. I am mindful that in Re Shen and Minister for Immigration and Citizenship [2008] AATA 906, at [23], the Tribunal stated that:

“The expression ‘likely to reside’, in the context of the 1948 Act has been held to mean ‘likely to reside in Australia immediately, or very soon after being granted a certificate of Australian citizenship’: Re Ho and Minister for Immigration and Multicultural Affairs [1994] 34 ALD 664 at [31] as applied in Taechaubol and Minister for Immigration and Multicultural Affairs [2001] AAT 425 at [153] and in Alavian and Minister for Immigration and Multicultural and Indigenous Affairs [2005] AATA 421 at [28] and [29].

58. Mr Galloway submitted that Shen was concerned with a different factual situation because he was an academic, and that Ms Chang worked off shore for the benefit of Australia, and that this should be recognised.
59. I have considered the submissions of both parties, and the evidence Ms Chang has given regarding her intentions to move to Australia with her children (one as yet unborn), in a few years time, and that she has not yet decided whether it would be to Sydney or to Adelaide. I am satisfied that does not signify as indicated in Re Ho and Minister for Immigration and Ethnic Affairs (1994) 34 ALD 664, an intention to reside immediately or very soon after being granted a certificate of Australian citizenship.
60. I have also considered the indicia raised in the Citizenship Instructions and taking those into account, am satisfied that Ms Chang cannot be held to have a close and continuing association with Australia. On the positive side, she has studied in Australia, is a CPA and has a bank account. However she has spent very little time here in the relevant period, has no family members who are citizens, no extended family here, does not have any employment here, and does not own any real estate.
61. I am not satisfied that Ms Chang satisfies the tests for section 21(2)(g) of the 2007 Act. I shall also however briefly refer to the appropriate exercise of the discretion.

Appropriate exercise of the discretion

62. I note that 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.”
...”

63. I note that in Re Ho and Minister for Immigration and Ethnic Affairs, Deputy President McMahon, as he then was, when looking at the residency requirements in the Australian Citizenship Act 1948 , 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.”

64. For the reasons given above, the Respondent contends that Re Ho and Minister for Immigration and Ethnic Affairs and other such case law concerning when it is appropriate to exercise the discretion in section 13(4), should be considered by the Tribunal when applying sub-item 7(8) in this case.
65. Ms Weston submitted that the residence requirements contained in the 1948 Act, which were preserved by the Transitional Act, were designed to ensure prospective citizens have spent a reasonable period of time in Australia before applying for citizenship. She submitted that the Applicant had spent no more than two percent of the required days in Australia in the last five years. Ms Weston contended on behalf of the Respondent that sub-item 7(8)(4) should not be applied in these circumstances, as it involved an unacceptable circumvention of the mandatory residency requirements.
66. I accept the submissions of the Respondent and Deputy President McMahon’s views as expressed in Re Ho and Minister for Immigration and Ethnic Affairs. Further, in applying the Ministerial policy, I noted that Ms Chang is not based in Australia, not required to work overseas by anyone, does not have to frequently travel abroad for the successful operation of her business, and is not engaged overseas in activities of a social, cultural, economic or political nature which are clearly beneficial to the interests of Australia. She is not a prominent person, and she lives overseas, which pursuant to the Ministerial policy indicates the discretion would normally not be exercised.
67. Accordingly, having noted that Ms Chang does not meet the tests in section 21 of the 2007 Act, in particular, sections 21(2)(d) and (g), and she does not meet the indicia for the Ministerial policy, means I cannot exercise the discretion to grant citizenship. It therefore follows that, for these reasons, the reviewable decision must be affirmed.

DECISION

68. The Tribunal affirms the decision under review.

I certify that the 68 preceding paragraphs are a true copy of the reasons for the decision herein of Ms G Ettinger, Senior Member

Signed: ............[sgd]...............................................................

Associate

Date of Hearing 9 December 2008; further documents filed 16 and 17 December 2008

Date of Decision 12 January 2009

Applicant’s representative Mr J Galloway, Migration Agent

Solicitor for the Respondent Ms L Weston, DLA Phillips Fox