Case: Minister for Immigration Local Government and Ethnic Affairs v Roberts [1993] FCA 80 ; (1993) 41 FCR 82
Outcome: followed
[34] [39] of its reasons, the Tribunal considered the question of whether the activities undertaken by the applicant in the period from 5 May 2004 to 29 June 2007 were activities beneficial to the interests of Australia. At [35] of its reasons, the Tribunal referred to the decision of Einfeld J in Minister for Immigration Local Government and Ethnic Affairs v Roberts [1993] FCA 80 ; (1993) 41 FCR 82 and then said: 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 5 years before his application. 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 The phrase beneficial to Australia was explained by Einfeld J in Roberts [1993] FCA 80 ; (1993) 41 FCR 82 at 87 as follows: 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 respondent. The section requires some objective benefit to Australia. I agree with his Honour's observations. However, I wish to add some observations of my own. The advantage or benefit to Australia contemplated by the language of subs (4)(a) must be real and not merely potential or hypothetical. That advantage or benefit must be identifiable and not de minimis. It must also be remembered that what is required by that subsection is that the Minister consider that the activities are beneficial to Australia. This imposes a requirement that the Minister act both honestly and rationally in forming the view which he or she is required to form. In my view, it is perfectly appropriate for the Minister to have regard to the ACI in considering whether or not the relevant activities are beneficial to Australia. I will now turn to the questions of law raised in the appeal and the application of the above principles to the facts and circumstances of the present case. The Present Case and the Questions of Law Raised in the Appeal The first question of law, as amplified by particular (a) to Ground 1, does not, in my view, arise in the present case. I do not think that the Tribunal proceeded upon the basis that activities undertaken through and on behalf of a corporation could never qualify as activities engaged in by the citizenship applicant for the purpose of subs (4)(a) of the transitional s 22. In its reasons, the Tribunal quoted extensively from the ACI. The ACI does not specifically refer to a dichotomy of the kind about which the applicant complains in this appeal and the general tenor of its language suggests that individuals may take the benefit of activities carried out by them (ie through their personal efforts) even though those activities were carried out during the course of their employment by a corporation. Further, at [26] of its reasons, the Tribunal expressly stated that it would regard the applicant's efforts in the business of Australian Mingsheng as activities which might count as activities of the relevant kind for the purposes of subpar (a) of subs (4) of the transitional s 22, should the remaining criteria prescribed by subs (4) be satisfied. At [27] of its reasons, the Tribunal held that the relevant activities in 2004 had not been established as being beneficial to Australia with the consequence that the applicant could not take the benefit of them personally for the purposes of subs (4) of the transitional s 22. The rejection of the applicant's claims in this regard was not on the basis that the activities were for the benefit of the corporation (Australian Mingsheng) but rather on the basis that they had not been proven to be beneficial to Australia. In respect of the later periods of time with which the Tribunal expressly dealt, the reasoning of the Tribunal manifested a similar approach.