Lin and Minister for Immigration and Citizenship [2009] AATA 44; (2009) 106 ALD 211 (22 January 2009)

Last Updated: 3 November 2010

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2009] AATA 44

ADMINISTRATIVE APPEALS TRIBUNAL )

) No 2008/1347

GENERAL ADMINISTRATIVE DIVISION		)
	Re		MINGCHI LIN

Applicant

And

MINISTER FOR IMMIGRATION AND CITIZENSHIP

Respondent

DECISION

Tribunal

Ms Robin Hunt, Senior Member

Date 22 January 2009

Place Sydney

Decision

The decision under review is affirmed.

...................[Sgd]....................
Ms Robin Hunt
Senior Member

CATCHWORDS

IMMIGRATION – citizenship – application made under 1948 Act but not decided prior to commencement of 2007 Act – permanent residency visa holder – periods of presence in Australia as permanent resident less than required for citizenship – consideration of discretion where engaged in activities beneficial to Australia – nature of overseas activities – applicant’s overseas activities not beneficial to Australia – decision under review affirmed.

Australian Citizenship Act 1948 s 13(4)(b)

Australian Citizenship Act 2007 ss 21, 22

Australian Citizenship (Transitionals and Consequentials) Act 2007 Items 7(2), 7(7), 7(8)(1), 7(8)(4) of Part 1 of Schedule 3

Australian Citizenship Instructions Chapter 5

Minister for Immigration, Local Government and Ethnic Affairs v Roberts [1993] FCA 80; (1993) 41 FCR 82

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

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

REASONS FOR DECISION

22 January 2009

Ms Robin Hunt, Senior Member

INTRODUCTION

1. The applicant, Mingchi Lin, has held an Australian permanent resident’s visa since 2 May 2004 and wishes to become an Australian citizen. A delegate of the Minister, on 1 March 2008, refused his citizenship application as he had spent much of his time out of Australia and the delegate was not satisfied that Mr Lin spent time overseas on activities that were beneficial to Australia.

ISSUES

2. Did Mr Lin engage in activities beneficial to Australia so as to justify exercise of discretion in his favour to treat periods during which he was not present in Australia as periods during which he was present?
3. If so, should Mr Lin be granted Australian citizenship?

BACKGROUND FACTS

4. The background facts are not disputed. Mr Lin was born on 6 December 1959 and is a citizen of the People’s Republic of China. He became a permanent resident of Australia on 2 May 2004 and lodged an application for conferral of Australian citizenship on 29 June 2007. Mr Lin’s application was refused as he had not met requirements related to periods of actual presence in Australia. He had not spent two years in Australia as a permanent resident in the five years immediately before applying for citizenship on 29 June 2007. Mr Lin also had not spent one year in the two years before his application in Australia.
5. When Mr Lin made his application, on 29 June 2007, he had spent 63 days in Australia in the two years preceding the application and 83 days in Australia in the five years preceding the application. At the time of lodging his application he was physically present in Australia.
6. The Minister’s statement of facts and contentions set out dates during which Mr Lin was present in Australia. Departmental movement records show that Mr Lin visited Australia every year from 2004 to 2007. His visits were short, with his longest stay being 14 days in February to March 2007. When Mr Lin made his application, he had arrived in Australia on the previous day, 28 June 2007, and then departed on 30 June 2007. He was in Australia for the tribunal hearing on 31 October 2008 and gave oral evidence.

REVIEWABLE DECISION

7. On 1 March 2008, a delegate of the Minister found Mr Lin did not meet the residency requirements of subitem 7(8) of Schedule 3 to the Australian Citizenship (Transitionals and Consequentials) Act 2007 (‘the Transitional Act’). The delegate then considered the exercise of discretionary powers available under subitem 7(8)(4) of the Transitional Act but considered Mr Lin still did not meet necessary criteria. The criteria involved Mr Lin’s demonstrating that during his time overseas he was engaged in activities which were beneficial to Australia.
8. The delegate found Mr Lin’s activities from late November 2006 were beneficial to Australia but was not satisfied as to previous activities because of lack of supporting evidence. He therefore concluded that, even if time since November 2006 was treated as time spent in Australia, it was insufficient time for the discretion to operate in Mr Lin’s favour. Mr Lin therefore did not succeed in his application.

LAW APPLYING TO APPLICATION

9. Mr Lin applied for citizenship under subsection 13(4)(b) of the Australian Citizenship Act 1948 (‘the old Act’). His application had not been decided when the Australian Citizenship Act 2007 (‘the new Act’) came into effect on 1 July 2007. As Mr Lin applied for citizenship on 29 June 2007 and the delegate decided the result of his application on 1 March 2008, the new Act and the Transitional Act applied. The new Act repealed the old Act and the Transitional Act introduced special provisions in respect to applications outstanding when the new Act commenced.
10. Item 7 of Schedule 3 to the Transitional Act contains provisions affecting applications made under the old Act.
11. Subitem 7(7) reads:

Assessing new applications under the new Act
(7)        In assessing a new application under the new Act, a reference in the new Act to the time the person made the application is taken to be a reference to the time the old application or the old declaration, as the case requires, was made under the old Act.

12. A ‘Note’ below this provision points out that the new application will be assessed under the provisions of the new Act, and goes on to say the effect of this subitem is that some of those provisions will be applied at the time the old application was made under the old Act.
13. Pursuant to subitem 7(2), if an application had not been decided before the new Act came into effect, it must meet particular requirements of the new Act, as follows:

(2)        If a person's application (the old application) made under section 13 or 23D of the old Act had not been decided immediately before the commencement day, the old application is, on and from the commencement day, taken to be an application (a new application) to become an Australian citizen made under section 21 of the new Act.

14. As Mr Lin applied under section 13 of the old Act, it must be taken as an application made under section 21 of the new Act pursuant to subitem 7(2) of the Transitional Act. Subitem 7(2) is followed by a note that adds reference to further subitems:

Note:    The new application will be assessed under Subdivision B of Division 2 of Part 2 of the new Act. Subitems (7) and (8) are also relevant to this assessment.

15. Mr Lin’s application must satisfy the residency requirements of sections 21 and 22 of the new Act by virtue of subitems 7(2) and 7(8) of Schedule 3 to the Transitional Act. Subitem 7(8) reads:

In applying section 22 of the new Act to a new application covered by subitem (2), subsections 22(1) to (2), (4A) and (5A) of the new Act do not apply and the following subsections of section 22 of the new Act apply instead:
            
(1)  For the purposes of section 21, a person satisfies the residence requirement if the person has been present in Australia as a permanent resident for:
(a)  a total period of at least 1 year in the period of 2 years before the day the person made the application; and
(b)  a total period of at least 2 years in the period of 5 years before that day.
...
(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.

16. It is possible to satisfy the residence requirement although not present in Australia for the lengths of time set out in the above provisions. Periods spent overseas may be treated as periods of residence in Australia where, during those periods, an applicant was engaged in activities beneficial to Australia. Mr Lin contended he had engaged in such activities when in China and therefore should be accorded citizenship.

CONSIDERATION AND FINDINGS

17. The periods at issue for Mr Lin involve his activities while overseas from mid 2002 (two years out of five requirement) and mid 2005 (one year out of two requirement), as Mr Lin applied for citizenship on 29 June 2007. As can be seen from the above provisions, in considering Mr Lin’s application, I may have regard to a lesser period of physical residence in Australia in accordance with subparagraphs (4)(a) and (b) of subitem 7(8) of the Transitional Act. This discretionary treatment of the relevant period(s) is further explained by policy guidelines outlined in Chapter 5 of the Australian Citizenship Instructions (‘ACI’) current at 1 July 2007 and at the time of the reviewable decision.
18. Mr Lin’s written submissions related to subsection 13(4)(b)(i) of the old Act as he applied under that provision. The new provisions and policy are similar to that applying at the date of his application and apply to matters not finalised when the new Act and the Transitional Act came into effect. The relevant ACI reads, in part:

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.
  

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)

...
In assessing whether activities are beneficial to the interests of Australia, consider the following:

• It requires “something in the nature of activities providing 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).
  

19. Mr Lin meets the first criterion of being a permanent resident during the periods in issue. A copy of Mr Lin’s passport and departmental movement records confirm that Mr Lin has engaged in frequent overseas travel. Movement records show that, in the five years before making his application, Mr Lin was present in Australia for 83 days, with 63 of those days being in the two years before his application. He therefore needs to show that he has spent the remainder of his time during those periods in activities which were beneficial to Australia.
20. Mr Lin says he meets the requirement of subitem (7)(8)(4) of the Transitional Act, which allows periods in which he was not present in Australia to be counted as if in Australia, as he was engaged in “activities that are beneficial to the interests of Australia.” He also says that he was self-employed and frequent travel abroad was essential to the successful operation of his business. Although he operated through a company vehicle, he was responsible for and maintained or carried out its operations.
21. At the tribunal hearing, Mr Lin gave evidence about his various business interests and his activities overseas in the time leading up to his application for citizenship. He conceded that he had spent little time in Australia since he was granted permanent residency but spoke of his close links to Australia and his activities while overseas which were beneficial to Australia. Mr Lin is married and two of his children became Australian citizens in late 2006. His wife is a permanent resident of Australia but travels with him when he is on business.
22. In oral evidence and a written statement, Mr Lin described various business interests in China. He said he was involved in the travel industry, real estate, strata title type developments and shopping centre developments. Although there had been some discussion in the reviewable decision about the business of Tara Holidays Australia and wine exports, Mr Lin did not wish to rely heavily on these activities as he said they were later activities. Mr Lin wished to rely on earlier activities which he said were beneficial to Australia. In his statutory declaration sworn on 15 July 2007, Mr Lin states:

Many of the commercial opportunities that I wished to develop however required me to spend significant periods of time overseas establishing and maintaining relationships with buyers, clients and government agencies...

23. When asked why he wanted to be an Australian citizen, Mr Lin espoused the good environment, democracy, investment opportunities, family and friends in Australia. Some of the disadvantages for him involved continuing to do business in China. He would have to transfer some business to a Chinese operator or partner and could remain a shareholder but not own land personally. It was difficult to invest in China without being a Chinese citizen. His Chinese companies could continue to own land and do business however. He said he was continually looking for business opportunities involving Australia and intended to move to Australia.

Activities in 2004

24. Mr Lin concentrated in oral evidence on activities since early 2004. He said he and his family moved to the suburb of Gordon in May 2004 and he bought a house in Killara in early 2006, which was now the family home. He has five children, two of whom are Australian citizens and who live in this house.
25. On 5 May 2004, Mr Lin registered an Australian proprietary company, Australian Mingsheng International Group Pty Ltd, ACN 108 957 179. He is the majority shareholder (95%) and the business has a licence to export wine, brandy and grape spirit. Mr Lin conceded that he discovered the quality of Australian wine later in his business operations and that wine exports from Australia did not pick up until November 2006. Before that, he was investigating business opportunities.
26. He submitted that he was to all intents and purposes self-employed in operating the business of this company. Mr Lin said this is his main Australian business vehicle. In view of his majority shareholding and evidence of his activities for the company, I find that he has been self-employed in this business from at least 5 May 2004. Mr Lin gave further evidence about his involvement in the business day-to-day, although he found it difficult to quantify time spent exclusively in this business because of his competing involvement in the four or five business concerns he said he had in China.
27. In view of his evidence, I am satisfied that Mr Lin is self-employed in the business of Australian Mingsheng International Group Pty Ltd and find he has been personally engaged in the conduct of this business since inception. I also accept that it has been necessary for Mr Lin to travel overseas in order to find a market for Australian products such as wine he exports and also Australian services. I also accept that Mr Lin developed a business relationship in 2007 which resulted in export of Australian sandstone. However, without evidence of further activity overseas involving this business which has been beneficial to Australia, Mr Lin’s activities for the periods he was absent from Australia do not satisfy the test that his activities overseas during 2004 have been beneficial to Australia.

Activities in 2005

28. Mr Lin also has a role in Lung Hang Industry Pty Ltd, an Australia registered company, which was first registered in 1999 and trades as Tara Holidays Australia. Mr Lin told the tribunal he was offered the opportunity and did invest in and become a director of this business on 16 September 2005. He remains a director and has a 40% shareholding. According to Mr Lin’s oral evidence, his involvement in this business resulted in many Chinese businessmen travelling to Australia but he could not supply names. He said he organised and introduced business people who were interested in such travel but handed over the planning and care of the business trips undertaken. There were 7 or 8 people in each group of travellers and 5 or 6 groups. In a written statement dated 28 June 2006, which appears on the tribunal documents, Mr Lin described five trips he generated in late 2005 and early to mid 2006, ranging in length from 6-8 days.
29. Mr Lin told the tribunal he has four or five businesses in China, including two travel agencies, a real estate development company and a shopping centre which is presently under construction. In this endeavour, he said he was a director and works with the general manager looking for business opportunities. He gave oral evidence that he commenced this activity in March 2005.
30. Mr Lin said he had three main real estate projects underway in China at present: a European style resort, a resort and golf course, and a residential and hotel complex. Mr Lin produced a contract dated 18 June 2005 between Changsha Huiminshen Property Co Ltd and W & B Design International Pty Ltd. The contract stipulated the persons who comprise the Australian design team and described their standing. Mr Lin explained that this is one of the development projects in which he is involved and that he looked forward to continuing his co-operation with the Australian company, design team and architects named in the contract for this huge project. He gave further evidence to the effect that Australian architects and designers would earn fees of RMB5m or more for the first stage of this project alone. It was worth at least US$10m. He added that apart from the design fees, Australian businesses would benefit in other ways including supplying a fleet of big motor boats that would be bought for use in the resort as well as other Australian goods and products.
31. After describing some of his business contacts and activities in Australia and China, Mr Lin asked me to find he had been personally engaged in the conduct of his businesses. I consider that the tourism and export activities Mr Lin described were generated through his personal efforts. In the case of the various real estate and development projects, I have decided that it is more apt to credit these activities to the Chinese entities or companies such as Changsha Huiminshen Property Co Ltd which has entered into a contract with an Australian design company. As Mr Lin is not a party to this arrangement, even if I accept his having a role in the entity and in generating the arrangement, I find the potential benefit to Australia is attributable to the Chinese entity rather than attributable to Mr Lin personally. I find further reason to reach this conclusion as Mr Lin has not called anyone from the Australian design company or any of the Australian architects and persons involved to confirm his personal endeavours in recruiting them to the project.
32. Overall, in my opinion, Mr Lin’s activities for the periods he was absent from Australia in 2005 do not satisfy the test that his activities overseas were beneficial to Australia.

Activities in 2006 and 2007

33. Mr Lin’s activities during 2006 were similar to those during 2005 until his businesses expanded towards the end of 2006. The delegate considered that Mr Lin’s activities from late November 2006 were beneficial to Australia but was not satisfied as to previous activities because of lack of supporting evidence. I agree with this aspect of the reviewable decision. In the period since November 2006, Mr Lin has been responsible for significant exports detailed in the Minister’s statement of facts and contentions. I also accept that he has been involved in tourism activities and has been working towards developing more business links. He already has close links to Australia through his family and property ownership.

BENEFITS TO AUSTRALIA

34. Mr Lin’s evidence shows that he has been personally engaged in activities overseas beneficial to the interests of Australia since late 2006 and not just for the benefit of one of the companies or organisations for which he works. He has also been involved in a series of transactions, not just a one-off transaction. The same cannot be said for his activities during the five years, or two of the five years, preceding his application.
35. While Mr Lin, on 5 May 2004, registered an Australian proprietary company, Australian Mingsheng International Group Pty Ltd, and had plans to create business through this vehicle, he has not succeeded in demonstrating to my reasonable satisfaction that he spent at least two of the previous five years during his time overseas in activities beneficial to Australia through this vehicle or otherwise. The leading case about what is meant by “activities beneficial to the interests of Australia” is Minister for Immigration, Local Government and Ethnic Affairs v Roberts [1993] FCA 80; (1993) 41 FCR 82. Einfeld J held the phrase meant activities which provide some advantage to Australia whether commercial or otherwise. Mr Lin has tried to demonstrate a mainly commercial stream of benefit although he has personal links to Australia as well through his children. I acknowledge that Mr Lin has taken steps towards benefiting Australia but he has not demonstrated that he spent much of his time on activities that benefit Australia while he was overseas during the five years before his application.
36. The activities for Changsha Huiminshen Property Co Ltd, which resulted in a substantial involvement of Australians in a major project, are more in the nature of activities Mr Lin performed for this private entity in my view. He has not produced convincing evidence that he was personally responsible for or largely engaged in activity which brought about this result. Activities for an employer do not satisfy the requirements although an exception may be made in instances such as those for an entity wholly or substantially owned and controlled by an applicant: see Re Tinamisan and Minister for Immigration and Multicultural Affairs (1996) 43 ALD 349. Exports are not intrinsically beneficial to Australia although I have accepted that Mr Lin’s significant exports in late 2006 onwards were beneficial: see Re McCarthy and Minister for Immigration, Local Government and Ethnic Affairs [1993] AATA 166; (1993) 30 ALD 447.
37. Even if the contract with the Australian design company were taken as an export of services, the contract is with an entity in which Mr Lin plays only a part. Mr Lin’s evidence about the time he spent on activities that involved his Australian business interests and development of business ties also did not create an impression that he spent the bulk of his time on these matters. He divides his time among his several business enterprises in China and Australia, and merely pressing his Australian contacts when talking to Chinese business interests is not sufficient to establish activities beneficial to Australia and which comprised a large proportion of his time. As I am not satisfied that Mr Lin engaged sufficiently in activities that were beneficial to Australia from mid 2002 for two years out of five or from mid 2005 for one year out of two, leading up to his application on 29 June 2007, Mr Lin has not met the residency requirements of subitem 7(8)(1) and (4) and cannot be granted citizenship on this basis.
38. I have also considered whether Mr Lin is likely to reside, or to continue to reside in Australia or to maintain a close and continuing association with Australia if his application were to be approved. This is a requirement of subsection 21(2)(g) I am not convinced by the evidence before me, on balance, that Mr Lin is likely to increase his stays in Australia than previously, despite two of his children being Australian citizens. Mr Lin, in my view, is still heavily engaged in his various businesses in China and the tenor of his evidence was that his presence would be required there in connection with property developments in which he is involved.
39. As Mr Lin has not spent the requisite time in Australia, being two years out of five and one year out of two preceding his application, and has not demonstrated that his activities during time spent overseas were beneficial to Australia, he cannot succeed in his present application. His absences overseas mean he does not satisfy the residence requirements of sections 21 and 22 of the new Act pursuant to subitems 7(2) and 7(8) of the Transitional Act. It may be that he will meet criteria eventually if he continues with and expands his activities which benefit Australia, however, as at the date of his application Mr Lin was not entitled to conferral of Australian citizenship.

DECISION

40. The decision under review is affirmed.
    

I certify that the 40 preceding paragraphs are a true copy of the reasons for the decision herein of Ms Robin Hunt, Senior Member

Signed: .........................[Sgd]............................

Jennifer Wong, Associate

Date/s of Hearing 31 October 2008

Date of Decision 22 January 2009

Solicitor for the Applicant Mr C Levingston

Solicitor for the Respondent Ms P Nandagopal, DLA Phillips Fox