|
|
[Home]
[Databases]
[WorldLII]
[Search]
[Feedback]
Administrative Appeals Tribunal of Australia |
Last Updated: 26 May 2009
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2009] AATA 379
ADMINISTRATIVE APPEALS TRIBUNAL )
) No 2008/0636
Applicant
Respondent
DECISION
...................SGD...........................
Ms N Bell, Senior
Member
IMMIGRATION – Citizenship – discretionary powers –whether applicant engaged in activities overseas that are beneficial to the interests of Australia – decision under review is affirmed.
Australian Citizenship Act 2007
Australian Citizenship (Transitionals and Consequentials) Act 2007
Australian Citizenship Instruction
Minister for Immigration Local Government and Ethnic Affairs v Roberts [1993] FCA 80; (1993) 41 FCR 82; 29 ALD 656;
McCarthy v Minister for Immigration Local Government and Ethnic Affairs [1993] AATA 166; (1993) 30 ALD 447;
Re Tsui and Minister for Immigration, Local Government and Ethnic Affairs (1991) 24 ALD 236
REASONS FOR DECISION
5. This discretion is to be exercised with regard to the policy recorded in the Australian Citizenship Instructions. In summary, that policy provides, relevantly, that the applicant for citizenship must have been personally engaged in the relevant activities and must have been required to work overseas. In addition, the Instructions provide that, for the activities to have been beneficial to the interests of Australia, they must be in the public interest of Australia, be more than the private interests of the applicant and must produce some objective benefit to Australia; they must achieve recognition of Australia or its achievements, some commercial advantage for Australia, or some increase in international respect or goodwill for Australia; they must go beyond the enhancement of the reputation of an Australian company or companies in general. The Instructions also provide that there must be a close nexus between the overseas activities of the applicant and the subsequent benefit to Australia. Further, they instruct that the benefit should be largely as a result of the applicant’s activities and must not be residual, remote, indirect or speculative. I note that the Instructions draw on and refer to judgments of the Federal Court and decisions of this Tribunal including Minister for Immigration Local Government and Ethnic Affairs v Roberts [1993] FCA 80; (1993) 41 FCR 82; 29 ALD 656; McCarthy v Minister for Immigration Local Government and Ethnic Affairs [1993] AATA 166; (1993) 30 ALD 447 and Re Tsui and Minister for Immigration, Local Government and Ethnic Affairs (1991) 24 ALD 236.
6. In determining the central issue of whether Ms Bao was, during the relevant time, engaged in activities that were beneficial to the interests of Australia, I will have regard to the matters set out in the Citizenship Instructions.
WAS MS BAO PERSONALLY ENGAGED IN THE ACTIVITIES?
7 Ms Bao’s evidence was that she was engaged by Woodhead to liaise on behalf of the company with the Chinese in Beijing. She noted that when the office was established in 2005 there were only two architects and herself and she was the only person with knowledge of the relevant cultural issues. She said it was her job to look at all contracts for business, to do the public relations work and to secure projects for the company. She described herself as making decisions in tandem with the boss, Geoffrey Lee, Managing Principal of Woodhead International Pty Ltd and Chairman of Woodhead, China, who she said was the Western face of the company. She also described herself as being the person with the connection with Austrade and responsible for dealings with that office.
8 Mr Lee’s, evidence was that Ms Bao was his “right hand person” and was employed as an Administration and Business Development Manager because of her legal qualifications and good English skills. He said that Ms Bao worked with him in talking to clients, negotiating contracts and fees, attending meetings and translating. He said that without her help he could not have functioned. He described Ms Bao as having knowledge of the marketplace in Beijing and as having introduced prospective clients and projects to the company, but said she was not the only avenue by which Woodhead gained clients or projects. He said that the major project that Woodhead achieved, Terminal 3 of Beijing Capital International Airport, did not come to Woodhead via Austrade.
9 Ms Lucy Luo, a Business Development Manager - Infrastructure at Austrade in Beijing wrote an open letter (undated) on Austrade letterhead stating that Austrade had alerted Woodhead and other companies about the Terminal 3 project and Ms Bao had been very “responsive” and won the job. She went on to describe Ms Bao in glowing terms, including a statement that “Without the involvement of Miss Bao, Woodhead International would not have made the progress it has made today in China”. The letter also makes a number of assertions about Woodhead’s improvement of “bilateral relations” between Australia and China, Woodhead’s “contribution to the Australian Community” and Woodhead’s generation of “further economic benefit back home for Australian (sic) economy”.
10 In oral evidence, Ms Luo said that Ms Bao was the major contact point for Austrade with Woodhead in Beijing. She said she did not understand why Mr Lee would have said that Austrade did not introduce Woodhead to the Terminal 3 project.
11 Later in her evidence she said that her assertions were entirely her own and not made on behalf of Austrade. She said that notwithstanding her use in the letter of the word “we” in a manner suggestive of representations on behalf of Austrade, she was speaking only on her own behalf. She was unable to provide any specific details or examples of Ms Bao’s contribution to Woodhead’s progress or of Woodhead’s beneficial contribution to Australia.
12 I consider that, while Ms Bao may have been very useful to the newly established Beijing office of Woodhead, she may have somewhat overstated her direct contribution to decision making and expansion of the company. I find Ms Luo’s description of Ms Bao’s impact to be considerably more overstated. I prefer the description given by Mr Lee who as Head of the company’s operations, had an overview of the company’s activities in Beijing. On that basis, I find that Ms Bao was an important member of the Beijing office and played a significant role as described by Mr Lee. To that extent she was personally engaged in the activities of Woodhead in Beijing.
WAS MS BAO REQUIRED TO WORK OVERSEAS?
13 Ms Bao’s evidence was she applied to work with Woodhead in Beijing because it was an Australian company and she wished to eventually settle in Australia. I note from Mr Lee’s evidence that Ms Bao was in Beijing when Mr Lee arrived there in 2005 and began hiring staff for the office. She said that, although she had completed her Master’s degree in Australia, there were more job opportunities in China. She also said the Beijing office was very busy and because of that she had no opportunity to return to Australia.
14 Mr Lee’s evidence was that Ms Bao was employed by Woodhead in China on a long term basis and she made it known that she wished to be in Australia and said she wanted to work for Woodhead because it gave her an introduction to an Australian company. When asked whether Ms Bao would have been given a transfer to Australia had she applied for one, he said it would have been possible. He said that Ms Bao went on leave in about April 2008, the Beijing office having closed in January 2008, and that she and Woodhead have an agreement to discuss her future at a later date but no particular job is being held for her.
15 On the basis of this evidence, I find that Ms Bao chose to work in China and applied for her position with Woodhead there. I also find that, although the office in Beijing was busy, had she applied for a transfer to Australia, it would have been possible. I conclude that Ms Bao was not required to work overseas.
WHAT WAS THE NATURE OF ANY BENEFIT PRODUCED BY MS BAO’S ACTIVITIES?
16 In essence, Ms Bao contended that her activities contributed to the profitability of Woodhead and that, in turn, was beneficial to Australia through enhanced reputation and increased employment.
17 Ms Bao relied on financial reports of the company to show that during the 2006 – 2007 financial year 8.5% of total revenue was derived from China, with roughly one third of that revenue coming from the Beijing office and two thirds from the Shanghai office. This was confirmed by Mr Lee. I note that Mr Lee also said that Ms Bao was not the only source of introductions to prospective customers and contracts.
18 Ms Bao also said that she introduced other Australian firms, including painters and timber merchants whose names but for one (Australia Yangtze Pty Ltd) she could not recall and URS, an American company with an office in Australia, to the Terminal 3 project. However, she said she learned of these companies from Austrade.
19 Mr Lee also said that Woodhead had begun operations in China in 1994, had established an office in Shanghai in 2001 and opened the Beijing office in 2005. There were 10-15 staff already in Shanghai when the Beijing office opened. He said that by 2007 the Beijing office had expanded to 15 staff and Shanghai had grown to 20. He said there was also an increase in Australian staff working in Australia because of a general growth in the economy and some of those were working on Chinese projects. He said the increase was for “multi-faceted” reasons and the analysis of those reasons is not simple.
21 Mr Lee also said there are other architectural firms working in China, but Woodhead is one of the longest operating in China. He described recent and ongoing litigation against a former employee of Woodhead who is alleged to have operated an architectural firm under the guise of Woodhead and allowed that it has impacted on the company in that it has experienced embarrassment and difficulty.
22. Ms Luo’s letter, written on Austrade letterhead but conceded by her to be wholly on her own behalf, makes a number of statements, referred to above, about Woodhead’s contribution to bilateral trade relations, its contribution to the Australian community, Australia’s strong economic tie to China and its encouragement of Australian companies to engage in business activities with China and generate further economic benefit in Australia. When asked as to the basis for these statements, she said it was “just commonsense” and said she had no specific information on which to base them.
23. I consider that to say that Ms Bao, as one of 15 people working in the Beijing office, should have attributed to her a 3% growth in Woodhead’s revenue and then to attribute to that 3% growth a growth of employment in Australia is something of a stretch. While I accept that Ms Bao’s contribution to the operations of the Beijing office was significant, and that the contribution of the Beijing office’s operations to Woodhead was some 3% growth and that may be significant to Woodhead, it does not follow that it was significantly or even insignificantly beneficial to Australia. There is no evidence of an objective benefit to Australia other than Mr Lee’s non specific assertion that there was an unquantified increase in employment in Woodhead in Australia and some of those employees performed work relating to projects in China – which may have been in connection with the Beijing office’s projects or with those of the office in Shanghai, with which Ms Bao did not work. No close nexus between Ms Bao’s activities and any growth in Australian employment has been established.
24. As to whether Ms Bao’s activities produced recognition of Australia or its achievements, some commercial advantage for Australia, or some increase in international respect or goodwill for Australia, there is no evidence to support this and scant evidence of such a benefit for Woodhead itself or other companies in general. To assert a benefit of this kind for Australia and even for Woodhead is merely speculative.
CONCLUSION
25. I have found that Ms Bao was not required to work overseas; that, although she played a significant role in the activities of the Beijing office of Woodhead, there is no close nexus between those activities and any growth in Australian employment; that there is no evidence of an objective benefit to Australia other than an unspecified increase in Woodhead’s staff in Australia which may or may not be attributable in part to Ms Bao’s activities in China and, if so, to an indeterminable extent. An increase in Woodhead’s profits in one year does not automatically translate into a benefit to Australia of the kind envisaged by the Act and by the Citizenship Instructions.
26. I have also found that there is no evidence of recognition or an increase in recognition of Australian achievements or international goodwill towards or respect for Australia.
27. I have also turned my mind to the question of whether, beyond the considerations contained in the Citizenship Instructions, there are any other matters that would lead me to the view that Ms Bao was engaged in activities beneficial to Australia during the relevant period.
28. In Ho and Minister for Immigration & Ethnic Affairs (1994) 34 ALD 664 Deputy President McMahon 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.”
30. I consider that there is no evidence before me that establishes circumstances so exceptional or requiring such flexibility as to make the exercise of the discretion appropriate or desirable.
31. On this basis, I do not consider that Ms Bao was engaged, at the relevant time, in activities that were beneficial to Australia and I do not consider this to be an appropriate case for exercise of the discretion to treat a period overseas as a period of presence in Australia as a permanent resident.
DECISION
32. The decision under review is affirmed.
I certify that the 32 preceding paragraphs are a true copy of the reasons for the decision herein of Ms N Bell, Senior Member
Signed:........................SGD..........................
Associate: Felicia Daniele
Date/s of Hearing 15 January and 4 February 2009
Solicitor for the Applicant Mr L Tang & Co Lawyers
Solicitor for the Respondent Ms L Weston, DLA Phillips Fox
AustLII:
Copyright Policy
|
Disclaimers
|
Privacy Policy
|
Feedback
URL: http://www.austlii.edu.au/au/cases/cth/AATA/2009/379.html