Shringapure and Minister for Immigration and Multicultural and In digenous Affairs [2003] AATA 38 (10 January 2003)

Last Updated: 7 February 2003

DECISION AND REASONS FOR DECISION [2003] AATA 38

ADMINISTRATIVE APPEALS TRIBUNAL )

) No N2002/567

GENERAL ADMINISTRATIVE DIVISION	)
	Re	Deepika Dinesh Shringapure

Applicant

And

Minister for Immigration and Multicultural and Indigenous Affairs

Respondent

DECISION

Tribunal

P.J. Lindsay, Senior Member

Date 10 January 2003

Place Sydney

Decision

The Tribunal affirms the decision under review.

............................

Senior Member

CATCHWORDS

Citizenship - application for grant of Australian citizenship - permanent residency requirement - whether Applicant's activities out of Australia beneficial to the interests of Australia - whether to exercise discretion to count periods spent outside Australia - decision affirmed

Australian Citizenship Act 1948 ss 13(1), 13(1A), 13(4)

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

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

Re Lau and Minister for Immigration and Multicultural Affairs (1996) 43 ALD 425

Chung and Minister for Immigration and Multicultural Affairs [2001] AATA 274 (5 April 2001)

REASONS FOR DECISION

Senior Member Lindsay

1. This is an application by Ms Deepika Dinesh Shringapure (the Applicant) for review of a decision by the Minister for Immigration and Multicultural and Indigenous Affairs (the Respondent) dated 9 April 2002 refusing to grant Australian citizenship to her because she did not satisfy the residence requirements of s.13(1) of the Australian Citizenship Act 1948 (the Act).

2. At the hearing, the Applicant was represented by her friend Mr Ravindra Bhagwat and Mr A. Mullins, solicitor, appeared for the Respondent. The Applicant gave telephone evidence from India. There were no other witnesses. Documents lodged pursuant to s.37 of the Administrative Appeals Tribunal Act 1975 were accepted in evidence.

BACKGROUND

3. The Applicant, who is 38 and a citizen of India, has held a Permanent Resident Visa Class 105 since February 1994. She arrived in Australia, with her husband and son, in October 1994 intending to settle here permanently (T6). While in Australia, her husband came across a business opportunity involving the company Rexam Australia Pty Ltd (Rexam Australia). Mr Shringapure's investigations convinced him that the metallised paper products manufactured by Rexam Australia could be converted into a unique, decorative laminate product, through the application of a novel process that he and associates in India had devised. Mr Shringapure, together with the Applicant and their son, went back to India on 11 January 1995 to get the new business venture off the ground, with a particular focus on developing a market in India for the new paper based laminate. Since then, the Applicant has come back to Australia for three stays as follows: arrived 20 October 1997 and departed 17 December 1997 (58 days in Australia); arrived 23 November 2000 and departed 29 December 2000 (36 days); and arrived 22 May 2001 and departed 17 May 2002 (360 days). In the two years before submitting her application for a grant of Australian citizenship on 2 October 2001, the Applicant was present in Australia for 170 days, and in the five years before lodging her application, she spent 229 days here.

4. On 9 April 2002, a delegate of the Respondent refused the application on the grounds that the Applicant had not been present in Australia as a permanent resident for the required periods laid down in s.13(1)(d) and (e) of the Act. The delegate decided the Applicant's circumstances did not warrant the exercise of the discretion that would allow periods outside Australia to be counted towards these residence requirements (s.13(4)(b)(i)) or the discretion to count prior periods of permanent residence towards the residence requirements (s.13(4)(b)(ii)). The Applicant has sought review by the Tribunal of the delegate's decision of 9 April 2002.

EVIDENCE

5. The Applicant told the Tribunal that she holds the degree of Bachelor of Science from the University of Bombay. Until she married in 1988, she had worked as a pathologist, with specialisations in endocrinology and biochemistry. She said she left that employment out of choice when she married, so she could become a housewife and support her husband Mr Dinesh Shringapure. Their only child, a son, was born in May 1989.

6. Mr Shringapure is in business with two associates in a firm called Sandish Marketing. They have also set up a number of companies, Sandish Sales Corporation and Sandish Sales Pvt Limited (T12). The Sandish businesses (Sandish) developed technology, which Mr Shringapure described as a "revolutionary application" (T11 p.93), that enables metallised paper to be converted into laminate. The Applicant said that Rexam Australia is the only manufacturer of metallised paper that is suitable for such conversion to laminate.

7. On her return to India on 11 January 1995, the Applicant said she helped her husband in progressing the business opportunity afforded by discussions with Rexam Australia. During this period the Applicant said a lot of research was carried out in India into the unique conversion process. She gave her husband strong emotional support and was with him a lot of the time but in addition she said she was associated with the office work. She looked after telephone enquiries and was responsible for the correspondence. It was not only office administration, the Applicant said, but also handling product and market development and preparing brochures. She said her role was crucial in the beginning of the venture with Rexam Australia, and she gave her husband a lot of moral support. Mr Shringapure was involved in everything from marketing to finance. Rexam Australia formalised its arrangement with Mr Shringapure and Sandish in February 1996, and appointed Sandish Sales Corporation as its exclusive sales agent in India on 12 September 1996 (T11 p.72). Later, the agent's territory was extended to other countries. The agent's responsibilities were to solicit orders for the sale of Rexam Australia's metallised paper products and the agent received a commission for orders obtained for the sale of those products. Although the Applicant was unable to comment in any detail about the trading results for Sandish from 1996 to 2001, she said it was a profitable enterprise and turnover has increased.

8. Mr R. George, general manager of Rexam Australia's metallising division, wrote to the Department of Immigration and Multicultural Affairs (the Department) in November 1997 in support of Mr Shringapure (T11 p.80). He described the background to, and nature of, the commercial arrangements between Rexam Australia and Sandish as follows:

Rexam Metallising is one of 230 operating units of Rexam Plc in England. Our business units are widely spread over the world. Our group turnover is 2.277 billion pounds sterling.

The Metallising Division of which we operate in Sydney is part of 6 units (2 in USA, 1 Germany, 1 UK, 1 Brazil and 1 Australia) manufacturing metallised paper for the Packaging Industry. We have an export strategy and limited success already for our Australian Operations with sales to China, Germany, UK, America, New Zealand, South Korea, Japan and India.

... we are currently working with an Indian company, M/s Sandish Sales Corporation who have developed a revolutionary application for the metallised paper manufactured by our Australian factory. One of the partners of the Indian company, Mr Dinesh Shringapure, along with his other two partners has developed a process for manufacturing decorative laminates in silver and gold colours. Mr Shringapure had visited our factory in February 1996 to formalise our arrangement and apprise us of this unique development by him.

Metallic laminates are currently being manufactured by using anodised aluminium foil worldwide which makes the laminates very expensive. The process of manufacturing them using our paper can bring the manufacturing cost to one-third the present cost beside giving the possibility of a very wide range of colours which cannot be offered in metallic foil. Needless to say, there is a huge potential for these laminates worldwide.

This concept has recently been introduced in India and we have already made trial supplies to a couple of manufacturers. ... Although we have manufacturing plants all over the world, only the Australian paper can withstand the high temperature and pressure during laminate manufacturing and hence the success in the Indian market will give us a possibility of supplying the paper worldwide to all laminate manufacturers.

Consequently it is vital for Rexam that Mr Shringapure continues to be available for us in India. His presence there will result in a very large export business from Australia, not only India but all over the world for our Lambrite products.

9. It would appear that the parties' original expectations were not fully realised, for Mr George wrote in a letter addressed `to whom it may concern' on 28 September 2001 (T7):

Mr Shringapure and his company, Sandish Marketing have developed a unique application for one of our products using their knowledge and contacts in India. ...

We can only penetrate market opportunities within India in particular, but other parts of the world generally with Mr Shringapure's technical expertise and skill. It is his presence in India which has made it possible for us to not only find this new application, but to continue to support it.

Whilst our relationship has been developed since 1996, the huge potential has not been realised by capacity constraints at our factory in Australia. We now have increased our capacity to support our Indian representative and help unlock the market potential that will result in increased export sales from Australia.

Mr Shringapure is of the same general view about prospects for the future, having written the following, probably in the latter part of 2001 (T12 p.224): "We [the Sandish businesses] expect to get continued business for Rexam in the few months to come from these countries [Germany, UK and USA] we have worked hard towards this over the last 5 years and now the time has come to convert the same into regular business and thereby income for Sandish as well as Rexam".

10. When cross-examined, the Applicant explained that, as a wife, she helped her husband in establishing his new business venture and provided family support, but added she also worked in the office. She was involved in the research into the unique conversion process and in that regard occasionally visited laboratories and attended product exhibitions. The business had an office, originally in Mumbai but now in Pune, where ten to twelve people worked. The Applicant said she would work there five to six hours a day. She received what she called a very minimum income or a token salary, but that did not bother her since she said she wanted her husband to establish "his" business. She said it is a family business and her's was not a job as such. Her role was to help out in everything. Her husband now does most of the marketing work for Sandish. He finds potential buyers of the new laminate, thereby securing orders for Rexam Australia's paper. Asked why she was not formally a member of the business, the Applicant explained that for technical reasons the business consisted of only three members including her husband. Such an arrangement did not concern her because, as a member of her husband's family unit, she saw no need for her name to be included. By being in the office, she felt that she was giving him proper support, especially emotional support. The Applicant's answers demonstrated little knowledge of the financial arrangements between Sandish and Rexam Australia, or of the volume of business that Sandish has secured for Rexam Australia.

11. When she came back to Australia in October 1997, she extended her visa. She left again on 17 December 1997 to go back to India because she said her office work and the needs of her son required her to do so. The Applicant is no longer working for Sandish, having ceased in February 2001. She returned to Australia in May 2001 with her son, but her husband did not come with them. While back in Australia she applied for a number of jobs but said she was unsuccessful because she is not an Australian citizen. Eventually, in October 2001, she secured a position working for Westpac Financial Services' call-centre and stayed with them until she returned to India with her son in May 2002. The Applicant decided to go back then because she felt her son needed to be with his father. She explained that her son had started puberty early. The year coordinator at his high school had contacted her earlier in 2002 to discuss his behaviour at school, such as refusal to participate in various activities. The Applicant felt that at this stage in her son's development, he would benefit from being closer to his father.

12. As for the future, the Applicant said that she plans to return to Australia with her son sometime early in 2003. She had not yet made firm arrangements to do so. It is their intention that her husband will come with them, and perhaps open an office here and be involved in marketing, as he has done in India for Sandish. She said that he may still have to visit India to assist in developing more marketing opportunities.

13. Neither the Applicant nor her husband has owned a property in either Australia or India. The Applicant said that she was interested in buying a property in Australia and had approached Westpac Financial Services for a staff loan, but was told that she was not then eligible since she had not been an employee for the required period. The Applicant's elderly mother lives in Australia and the Applicant wishes to come back here and be with her. The Applicant emphasised that she has over forty relatives in Australia. She believes that her son's development in sport and music would be enhanced in Australia as there are no facilities available to him in India.

LEGISLATION AND POLICY

14. Under s.13(1) of the Act, the Respondent, if satisfied of certain matters, may grant the Applicant a certificate of Australian citizenship. In this proceeding, the relevant matters are found in s.13(1)(d) and (e):

(1) Subject to this section, the Minister may, in the Minister's discretion, upon application in accordance with the approved form, grant a certificate of Australian citizenship to a person who satisfies the Minister that:

...

(d) the person has been present in Australia as a permanent resident for a period of, or for periods amounting in the aggregate to, not less than one year during the period of 2 years immediately preceding the date of the furnishing of the application;

(e) the person has been present in Australia as a permanent resident for a period of, or for periods amounting in the aggregate to, not less than 2 years during the period of 5 years immediately preceding the date of the furnishing of the application;

The Minister has a discretion under s.13(4) of the Act as follows:

(4) For the purposes of the application of sub-section (1) in relation to an applicant for the grant of a certificate of Australian citizenship:

...

(b) subject to paragraph (a), the Minister may, in the Minister's discretion

(i) treat a period during which the applicant:

(A) was a permanent resident;

(B) was not present in Australia; and

(C) was engaged in activities that the Minister considers beneficial to the interests of Australia;

as a period during which the applicant was present in Australia as a permanent resident;

(ii) treat a period ending before the period of 5 years referred to in paragraph (1)(e), being a period during which the applicant was present in Australia as a permanent resident, as a period within that period of 5 years;

...

(iv) if the Minister considers that the applicant would suffer significant hardship or disadvantage if a certificate of Australian citizenship were not granted to the applicant--treat a period during which the applicant was present in Australia otherwise than as a prohibited immigrant, as a prohibited non-citizen, as an illegal entrant, as an unlawful non-citizen, or in contravention of a law of a prescribed Territory, as a period during which the applicant was present in Australia as a permanent resident; or

As the Applicant is presently residing overseas, s.13(1A) is also relevant:

(1A) The Minister shall not grant a certificate of Australian citizenship to a person under subsection (1) at a time when the person is not present in Australia unless:

(a) the person is a permanent resident; and

(b) the Minister considers that the person is engaged in activities outside Australia that are beneficial to the interests of Australia.

15. There are government policy guidelines in Chapter 4 of the Australian Citizenship Instructions (the Instructions) for reference by the Respondent's delegates when they are making decisions on applications for grants of citizenship. In relation to the residence requirement in s.13(4)(b)(i) the Instructions note:

4.3.17 Periods during which the applicant was a permanent resident and was outside Australia engaged in activities beneficial to the interests of Australia may be counted towards the residence requirements. This discretion applies to both residence requirements (i.e. both "2 years in the last 5" and "1 year in the last 2").

4.3.18 The legislation is interpreted as requiring the following:

...

* 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;

...

4.3.19 Under Ministerial policy, the discretion usually will only be exercised if the Applicant is in Australia and was either:

...

* self-employed and frequent travel abroad was essential to the successful operation of their business, whether for an extended period or on a regular short-term basis; or

* engaged overseas in activities of a social, cultural, economic or political nature which are clearly beneficial to the interests of Australia and are widely recognised as such either by:

- the Australian community generally; or

- prominent persons associated with the applicant's field of endeavour (for example, people engaged in aid programs, artists and entertainers of world standing).

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

16. As for whether an applicant is engaged in activities beneficial to the interests of Australia, the instructions set out a number of matters that are said to be relevant:

4.3.26 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, 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).

17. With regard to exercising the discretion on the basis of s.13(4)(b)(iv), the Instructions state:

4.3.33 As a matter of policy, this discretion [referring to both ss.13(4)(b)(ii) and 13(4)(b)(iv)] would usually only be exercised in one of the following situations of hardship or disadvantage:

* the applicant can demonstrate that he/she has been refused employment solely on the grounds that the employment is restricted to Australian citizens and that alternative sources of employment are not reasonably available to him/her;

* the applicant would be excluded from travelling internationally because he/she cannot obtain a passport or because he/she is excluded from travelling with immediate Australia family; or

* the applicant would not otherwise be eligible to represent Australia in an international forum or be selected to represent Australia in a national representative team/group. ...

FINDINGS AND CONSIDERATION

18. For the Applicant, Mr Bhagwat submitted that the Minister's discretion in s.13(4)(b) should be exercised. In relation to s.13(1)(b)(i) the following passage from the Applicant's letter of 29 September 2001 to the Respondent is relevant "Since our return from Australia for the last 5 years was for getting business for an Australian company and thereby offering significant business and exports to the Australian economy, since we have been engaged in trying to promote and procure business which has helped the Australian exports to a very big extent." (T6). Similarly, the following from the Applicant's letter of 25 November 2001 to the Department is relevant (T11 p.57): "My husband Dinesh is in India for promoting the Rexam activity which he is continuously doing for last many years. The reason I went back with him because my son was still very small & he needed the presence of both his parents. That time as a family we had to be together then to promote this new venture. As a wife it was my duty to support him emotionally and be his strength when he started this new revolutionary project which has opened a huge export market for Australia. We strongly believe that husband and wife are one strong team in whatever they do. We have always worked as a team in promoting this huge project. But because of technical reasons my name could not be added." Mr Bhagwat contended that the Applicant's cultural and religious beliefs should be taken into account because they explained why she is not formally recognised as an owner in Sandish and why she has spent time in India supporting her husband, and more recently in assisting her son. In relation to the Applicant's interests in the business, Mr Bhagwat referred to the Hindu "undivided family" law which he said recognises the interests of all family members in a business which is held only in the name of the husband as head of the family. He stressed that the Applicant and her family have migrated to Australia, and that she has many relatives here including her mother, her only sibling and uncles and aunts. She has had to return to India at various times because of her duty to help her husband on commencement of his undertaking with Rexam Australia and with the ups and downs in the business, and more recently due to the emotional breakdown of her son.

19. Mr Mullins submitted for the Respondent that the Applicant had not satisfied the residence requirements in s.13(1)(d) and (e) of the Act. Further, it was submitted that the Applicant could not establish that her activities in India, whether as a wife and mother or for Sandish, were activities that were `beneficial to the interests of Australia' as discussed by Einfeld J in Minister for Immigration, Local Government and Ethnic Affairs v Roberts (1993) 41 FCR 82. He referred to the following from Einfeld J's judgment (at 87):

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

Mr Mullins also referred to the decision of Deputy President McMahon in Re Ho and Minister for Immigration and Ethnic Affairs (1994) 34 ALD 664 to the effect that the discretion in s.13(4) is not intended to offer an alternative method of complying with ss.13(1)(d) and (e), rather it is intended to allow flexibility in exceptional circumstances. The Applicant's activities for Sandish were said to be exclusively private in nature. Mr Mullins emphasised that there was no evidence about any benefit to Australia from Sandish's activities, whether in job creation or developing local industry, and he submitted its activities were not to be considered the Applicant's activities in any event. Mr Mullins referred to the decision of Deputy President Chappell in Re Lau and Minister for Immigration and Multicultural Affairs (1996) 43 ALD 425 and submitted that any public benefit to Australia from the Applicant's activities was too remote and speculative to be relevant.

20. In coming to a decision in this matter, the Tribunal has taken into account the Applicant's evidence at the hearing, the relevant documents and submissions. In addition to the case law, the Tribunal has had regard to the policy guidelines contained in the Instructions in deciding whether the Applicant's activities while in India were beneficial to the interests of Australia. As the citizenship application was made on 2 October 2001, the relevant periods under assessment are the two years from October 1999 and the five years from October 1996. The Tribunal finds that the Applicant was present in Australia for only 170 days during the two years preceding her citizenship application and for 229 days during the five year assessment period and accordingly, she does not satisfy the conditions in ss.13(1)(d) and (e).

21. The Applicant's letters to the Department and the Tribunal (T1, T6 and T11) have emphasised her role in India as a wife and mother. She asserted that such support for her family has contributed to Sandish's commercial success. Her evidence at the hearing, however, went further by referring to the number of hours she worked and the activities she performed for Sandish. She said she had worked daily in the family business for up to six hours, performing various office and promotional duties. Against that the Tribunal notes that the Applicant described her role as "not a job as such" and she was happy to be paid token wages because she wanted to help out and support her husband in building "his" business. The Applicant showed very little knowledge about the financial side of Sandish or the contribution, if any, that Sandish had made to Rexam Australia's operations and sale of its products. Her evidence was that her husband was the key person who looked after marketing and finance. On balance, the Tribunal is satisfied that the Applicant's activities were not carried out as an employee, but in a family or domestic context primarily to assist her husband's private business interests. Nevertheless, the Tribunal accepts that until February 2001 her activities in assisting her husband promote and market the technology, indirectly helped Sandish.

22. The next issue is whether the Applicant's indirect assistance for Sandish amounts to her being engaged in activities that could be considered beneficial to the interests of Australia. The Applicant's evidence was that Rexam Australia, Sandish's main client, is now able to sell its products into new markets as a consequence of its use of Sandish's technology. The Tribunal notes that the technology for pressing and converting metallised paper was developed by Mr Shringapure and his associates, and is not Australian technology. An increase in Rexam Australia's sale of paper products does not result in the promotion of Australian technology. Her uncontradicted evidence was that Sandish obtained a lot of orders for Rexam Australia's metallised paper, but there was no evidence of an increase in employment in Australia, gains in productivity or other public benefit. While the Tribunal may accept the Applicant's assertion that Rexam Australia's turnover in metallised paper has increased in India, the evidence points to her being involved in activities that merely supported the private interests of her family and Sandish and, to a lesser extent, an Australian subsidiary of a UK conglomerate. Moreover the Tribunal is satisfied that her activities were merely indirectly connected with the increase in turnover. There is no suggestion, let alone evidence, of an objective public benefit to Australia from her activities. The Tribunal accepts the Respondent's submission based on the decision of Deputy President Wright Q.C. in Chung and Minister for Immigration and Multicultural Affairs [2001] AATA 274:

[25] To be engaged in activities which may be regarded as beneficial to the interests of Australia, it is necessary to show more than the pursuit of a private commercial enterprise overseas which may produce a small financial return to an Australian resident which may then in turn be the source of payment of money as income taxation to the Commonwealth Treasury. In my opinion there is a clear element of public service required even though the benefit produced may not be measurable in economic or other quantitative terms.

Any advantage derived by her husband, Sandish and Rexam Australia from her involvement was a private, commercial advantage. In the Tribunal's view, if any benefit were to accrue from an expansion in Rexam Australia's production in Australia, it is not sufficiently broadly based to meet the public benefit requirement. Accordingly, the discretion in s.13(4)(b)(i) should not be exercised.

23. As to ss.13(4)(b)(ii) and (iv) the evidence established that the Applicant obtained satisfactory employment in October 2001 which continued right up to her departure for India in May 2002. The Applicant said that her residency status caused her no difficulties when travelling overseas. There is no basis, therefore, to exercise the discretion in either ss.13(4)(b)(ii) or (iv) since there is no evidence that the Applicant will suffer hardship or disadvantage from being denied a certificate of citizenship.

24. The decision under review ought be affirmed.

I certify that these 24 paragraphs are a true copy of the decision and reasons for decision herein of P.J. Lindsay, Senior Member:

Signed:

.........................................................................................................................

Associate

Date of Hearing 27 November 2002

Date of Decision 10 January 2003

Applicant's Representative Mr Ravindra Bhagwat

Solicitor for Respondent Blake Dawson Waldron