Case: Re Tinamisan and Minister for Immigration and Multicultural Affairs (1996) 43 ALD 349
Outcome: cited
Tribunal then went on to consider the remaining activities in which the applicant was involved in the period 2005 2007 and, at [36] [39] of its reasons, said the following: 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. 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 2 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. 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. 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. The Tribunal then affirmed the delegate's decision. At the commencement of the hearing before me, the applicant sought leave to amend his Notice of Appeal. There was no opposition by the respondent to the amendments sought. Accordingly, I granted leave to the applicant to amend his Notice of Appeal in the manner sought by him. Counsel for the Minister also submitted that, for the elements of subitem (8)(4)(a) of Item 7 to be satisfied, there needs to be some objective benefit to some public interest of Australia and that this means more than the private interests of the applicant (see Re Tinamisan and Minister for Immigration and Multicultural Affairs (1996) 43 ALD 349 ; and Roberts [1993] FCA 80 ; 41 FCR 82). The Third and Fourth Questions of Law and Grounds 2 and 3