Fatovic and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Citizenship)

Fatovic and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Citizenship) [2020] AATA 2792 (7 August 2020)
Division: General Division
File Number(s): 2019/3161
Re:Elvis Fatovic
APPLICANT

AndMinister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
RESPONDENT

DECISION
Tribunal:Deputy President J W Constance
Date: 7 August 2020
Place:Sydney

The decision made on 3 May 2019 to refuse Mr Fatovic’s application for Australian citizenship by conferral is set aside and the matter is remitted to the Minister with a direction that it be reconsidered in accordance with these reasons for decision.
..............................[SGD]..........................................
Deputy President J W Constance
Catchwords
CITIZENSHIP – citizenship by conferral – general residence requirement – special residence requirement – activities which are of benefit to Australia – participation in an Australian team – whether the Applicant needs to be an Australian citizen to engage in the activity – decision set aside and remitted
LEGISLATION
Australian Citizenship Act 2007 ss 21, 22, 22A
CASES
Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634
SECONDARY MATERIALS
Citizenship Policy
REASONS FOR DECISION
Deputy President J W Constance
7 August 2020
A. INTRODUCTION

Mr Fatovic is a citizen of Croatia who has applied for Australian citizenship by conferral in accordance with the Australian Citizenship Act 2007 (Cth) (the Act). He is also the Head Coach of the Australian Men’s Water Polo Team.
By reason of his absences from Australia during the four years before he applied, Mr Fatovic does not meet the general residence requirement to be eligible for a grant of citizenship. This raises the question of whether Mr Fatovic meets the special residence requirement in section 22A of the Act relating to persons engaging in activities that are of benefit to Australia.
On 3 May 2019 a delegate of the Minister decided that Mr Fatovic did not meet the special residence requirement and refused his application (the reviewable decision). Mr Fatovic has applied to the Tribunal to review the reviewable decision.
For the reasons which follow the reviewable decision will be set aside and the matter will be remitted to the Minister to be reconsidered in accordance with these reasons.
B. LEGISLATION AND POLICY
Australian Citizenship Act 2007 (Cth)
Subsection 21(2) of the Act provides:
(2) A person is eligible to become an Australian citizen if the Minister is satisfied that the person:
(a) is aged 18 or over at the time the person made the application; and
(b) is a permanent resident:
(i) at the time the person made the application; and
(ii) at the time of the Minister's decision on the application; and
(c) satisfies the general residence requirement (see section 22) or the special residence requirement (see section 22A or 22B), or satisfies the defence service requirement (see section 23), at the time the person made the application; and
(d) understands the nature of an application under subsection (1); and
(e) possesses a basic knowledge of the English language; and
(f) has an adequate knowledge of Australia and of the responsibilities and privileges of Australian citizenship; and
(g) is likely to reside, or to continue to reside, in Australia or to maintain a close and continuing association with Australia if the application were to be approved; and
(h) is of good character at the time of the Minister's decision on the application.
Subsection 22A(1) provides:
(1) Subject to this section, for the purposes of section 21 a person (the applicant) satisfies the special residence requirement if:
(a) the following apply:
(i)      the applicant is seeking to engage in an activity specified under subsection 22C(1);
(ii)      the applicant’s engagement in that activity would be of benefit to Australia;
(iii)     the applicant needs to be an Australian citizen in order to engage in that activity;
(iv) in order for the applicant to engage in that activity, there is insufficient time for the applicant to satisfy the general residence requirement (see section 22); and
(b) the head of an organisation specified under subsection 22C(2), or a person whom the Minister is satisfied holds a senior position in that organisation, has given the Minister a notice in writing stating that the Applicant has a reasonable prospect of being engaged in that activity; and
(c) the applicant was present in Australia for a total of at least 180 days during the period of 2 years immediately before the day the applicant made the application; and
(d) the applicant was present in Australia for a total of at least 90 days during the period of 12 months immediately before the day the applicant made the application; and
(e) the applicant was ordinarily resident in Australia throughout the period of 2 years immediately before the day the applicant made the application; and
(f) the applicant was a permanent resident for the period of 2 years immediately before the day the applicant made the application; and
(g) the applicant was not present in Australia as an unlawful non-citizen at any time during the period of 2 years immediately before the day the applicant made the application.
Legislative Instrument IMMI 13/056
In the exercise of a power given by section 22C, the Minister has made Legislative Instrument IMMI 13/056 which provides, in part:
Schedule A – Activities specified for the purposes of subparagraph 22A(1)(a)(i) of the Act
…
2. Participation in an Australian team in the following competitions:
…
(c) the Olympic Summer Games; including qualifying events for the Games;
…
Schedule B – Organisations specified for the purposes of paragraph 22A(1)(b) of the Act
…
2. Australian Olympic Committee (AOC);
…
Australian Citizenship Policy
The Policy provides, in part:
A person only meets this special residence discretion if they are required to be an Australian citizen in order to engage in the relevant activity (s22A(1)(a)(iii) …
C. EVIDENCE AND FINDINGS OF FACT
Unless stated otherwise the following findings of fact are based on the evidence given by Mr Fatovic at the hearing. I am satisfied that he was an honest witness who gave his evidence to the best of his recollection.
Mr Fatovic’s background and position as Head Coach
Mr Fatovic was born in 1971 in Croatia and is a citizen of that country. He has been a professional water polo player since he was 18 years of age. Water polo is the national sport of Croatia. He is recognized internationally as a Head Coach of water polo teams.
Mr Fatovic first came to Australia in 2000 as the holder of a temporary visa. In 2013 he was granted a 457 working visa and, in 2016, a distinguished talent visa. The latter visa was granted by reason of his successful sporting career and having been awarded three Olympic gold medals as a member of three different national teams. He has received awards for his achievements as a coach.
Since March 2013 Mr Fatovic has been employed by Water Polo Australia as the Head Coach of the Australian Men’s Water Polo Team. His present contract expires in September 2021. Since he commenced in his present role his contract has been renewed in consideration of the success he has achieved, mostly with amateur players, and his ability to assist players in obtaining overseas contracts to develop their skills.
During the past seven years Mr Fatovic has coached the Australian team at the 2016 Olympic Games, World League, World Championships, World Cup and national events. Under his coaching the Australian players have received international recognition and the sport has been promoted nationally.
Role as a member of the team
Mr Fatovic travels extensively with the Australian team. Had it not been for restrictions imposed by reason of the COVID-19 pandemic, during 2020 the team would have travelled to the USA for training in March/April, to Europe for the World League in June and to Japan for the Olympic Games in July. When restrictions are lifted the team will travel for similar periods each year. Mr Fatovic is required to travel extensively to ensure the team is as well prepared for international competitions as it can be.
In the past Mr Fatovic has travelled on his Croatian passport. At present it is expected that the team will be able to travel overseas next year and will take part in the Olympic Games in 2021. It is important that Mr Fatovic be able to travel with an Australian passport along with the other team members. If he does not, there is a risk that he will be subject to different travel restrictions to the rest of the team. Team bonding and residing with the team when overseas are important to achieve the best performance.
Success at the Olympic Games is important in several ways, as it increases the promotion of the sport in Australia, the extent of government funding and the available training opportunities.
During matches Mr Fatovic plays a vital role in communicating with referees and players.
Representation of Australia on FINA
I accept the following, verified by Mr Fatovic:
Mr Fatovic is the only Delegate representing Australia on the Coaches Committee of Federation Internationale de Natation (‘FINA’). FINA is the international peak body for swimming, diving, and water polo and aims to establish unified rules for these sports at Olympic Games and other international competitions; to verify work records and maintain a list of world records; and mange swimming competitions at the Olympic Games. [1]
Mr Fatovic has held this position since July 2017.
[1] Applicant’s Statement of Issues, Facts and Contentions filed 23 October 2019.
The powers and duties of the Coaches Committee are:
- in coordination with the Development Committee, to fulfil FINA development programme requirements,
- to participate in the Coaches Certification programme for each discipline,
- to bring the coaches experience and requirements with occasion of FINA Competitions to the respective Management Committee of the event,
- to be in contact with and bring forward recommendations and proposals from the coaches around the world, and
- to advise on any proposal or amendments to Technical Rules for each discipline.[2]
[2] Exhibit A3.
Correspondence from the Australian Olympic Committee
A letter from the Committee dated 19 December 2018 and signed by Mr Carroll AM, Chief Executive Officer, stated in part:
Mr Fatovic is a world class water polo coach, having also been an elite athlete with his career spanning over many years with the Croatian National Team in Croatia. Since his appointment we have witnessed a significant improvement in our Senior Men’s results with the most recent being 2nd place at the 2018 World Cup, defeating Croatia (see attached results).
We confirm that:
a) Mr Fatovic will be part of the Australian team for the Tokyo 2020 Olympic Games, including qualifying stages which are played internationally from 18-23 June 2019.
b) Elvis’ engagement as the Head Coach of the Australian Men’s Water Polo Team would be of benefit to Australia.
c) For reasons of continued leadership and commitment to the sport; the overall team morale and connectedness to the Australian team which he coaches, it would be most beneficial if Mr Fatovic were to be an Australian citizen. As the peak body for the Australian sporting community, it is our intention to extend to Elvis the support and opportunity for Elvis to become an Australian citizen in recognition of his efforts to have the Australian Men’s Water Polo Team be placed in the top ten rankings worldwide.
d) As noted above, the qualifying stages for the Tokyo 2020 Olympic Games commence on 18 June 2019. There is insufficient time for Elvis to meet the general residence requirement by this time, solely due to the fact that he has had obligations towards the Australian Men’s Water Polo Team to train and complete (sic) internationally throughout his tenure. It would therefore seem unjust that his “distinguished talent” and commitment to Australia through his coaching, are in fact the reasons that he cannot become an Australian citizen.
It is desirable to ensure that Mr Fatovic remains part of the long-term strategy for the Australian Men’s Team and associated development squads towards Tokyo and beyond.[3]
[3] Exhibit R1, 61.
In a second letter dated 30 January 2020,[4] Mr Carroll wrote, in part:
In furtherance to the AOC’s letter dated 19 December, enclosed for your reference, Mr Fatovic in his role as Head Coach of the Australian Senior Men’s water polo team, is at the very heart of the Team. His leadership has contributed to a vastly improved performance by the team and is central to ensure the Team’s success in a number of high-profile competitions in 2020, most notably, the Tokyo Olympic Games scheduled in July-August 2020.
Whilst not strictly required that Mr Fatovic be an Australian citizen in order to participate in his coaching role, Australian citizenship will greatly empower Mr Fatovic to provide the guidance and leadership to the team so they can represent Australia to the best of their ability. Mr Fatovic’s experience, skill set and connection to the Team is one that cannot be easily replaced.
[4] Exhibit A1.
D. ISSUES FOR CONSIDERATION
Mr Fatovic acknowledges that he does not meet the general residence requirement set out in section 22 of the Act. The question which then arises is whether he meets the special residence requirement in accordance with section 22A.
The issues argued before me and which arise for determination are:
(1)is Mr Fatovic seeking to engage in an activity specified under subsection 22C(1)?
(2)would Mr Fatovic’s engagement in the activity be of benefit to Australia?
(3)does Mr Fatovic need to be an Australian citizen to engage in the activity?
E. REASONING
E1: Is Mr Fatovic seeking to engage in an activity specified under subsection 22C(1)?
As set out in paragraph 7 above, one of the specified activities is participation in an Australian team in the Summer Olympic Games, including qualifying events. I have found that Mr Fatovic is seeking to engage in the position of Head Coach of the Australian Men’s Water Polo team at the 2021 Olympic Summer Games. On the basis of the evidence of Mr Fatovic and the letter of 19 December 2019 from Mr Carroll, I am satisfied that Mr Fatovic has been the Head Coach for the team in the qualifying events for the Olympics
The Minister argues that “[T]here is no specified activity that is directly concerned with membership of an Australian sporting team, or with performing the role of a coach of an Australian sporting team.”[5] It is contended that in his role as Head Coach Mr Fatovic would not be engaged in participation in the Australian team when it competes in the 2021 Summer Olympics.
[5] Respondent’s Statement of Facts, Issues and contentions dated 28 February 2020, [29].
I do not accept this argument.
The Oxford English Dictionary defines participation to include:
the action or fact of having or forming part of something.
The effect of the Minister’s argument is to restrict the benefit of the provision of the section to those who actively compete in the Olympics. There is no justification for such a narrow interpretation. The activity referred to by Mr Fatovic when describing his role of Head Coach when the team is competing is action forming part of the team. Had Parliament intended to restrict the application of the section in the manner proposed by the Minister it would have said so by referring to athletes seeking to compete in the Games.
E2: Would Mr Fatovic’s engagement in the activity be of benefit to Australia?
The Minister did not argue that the activity in which Mr Fatovic seeks to engage would not be of benefit to Australia. Based on the evidence of Mr Fatovic and the correspondence on behalf of the Australian Olympic Committee, I am satisfied that Mr Fatovic’s engagement as Head Coach of the team would be of benefit to Australia. My reasons for reaching this conclusion are:
·Mr Fatovic’s role as Head Coach will increase the chances of the Australian team being successful at the next Summer Olympics;
·success at the Olympics would promote water polo within Australia;
·success at the Olympics would increase the opportunities of Australian players to obtain experience overseas.
E3: Does Mr Fatovic need to be an Australian citizen to engage in the activity?
The Minister argues that Mr Fatovic does not need to be an Australian citizen to engage in the activity to participate in the Australian team in the Olympics and the qualifying events.
The Minister’s reasons are stated as follows:
Although the letter indicates that qualifying events for the Olympic Summer Games were to take place from 18-23 June 2019, and that '[i]t is desirable that Mr Fatovic remains part of the long-term strategy for the Australian Men's Team and associated development squads towards Tokyo and beyond', there is nothing in the more recent material submitted by the applicant that indicates that he has not been able to participate in the qualifying events or remain part of the long-term strategy for the team. Nor has any information been submitted that shows that the applicant will be unable to perform the role of coach of the team at the Olympic Summer Games if he is not an Australian citizen.
The Minister contends, therefore, that it is not the case that the applicant 'needs' to be an Australian citizen to participate in the Olympic Summer Games (or in qualifying events for the Games) in the role of coach of the Australian men's water polo team. Hence, the applicant does not satisfy the requirements of s.22A(1)(a)(iii), and does not satisfy the special residence requirement at s.22A.[6]
[6] Respondent’s Statement of Facts, Issues and Contentions dated 28 February 2020, [34]-[35].
Referring to the definition of need in the Macquarie Dictionary, the Minister contended that “there is an element of ‘requirement’ that must exist between engagement in a relevant activity and the Applicant being an Australian citizen.”[7] The Citizenship Policy supports this interpretation in providing that, in order for an applicant to have the benefit of this provision, he or she must be required to be an Australia citizen.
[7] Respondent’s Statement of Facts, Issues and Contentions dated 28 February 2020, [37].
The Macquarie Dictionary defines the noun need to include “a case or instance in which some necessity or want exists” [emphasis added]. The verb need includes “to have need of; require”. The definition of “to require” is “to make demand; to impose obligation or need”.
I agree with the argument put on behalf of the Minister that Mr Fatovic must show more than a desire to have citizenship. On the other hand, to interpret subparagraph 22A(1)(a)(iii) to impose a requirement for an applicant to have citizenship is to place an obligation on an applicant which is not in accordance with the ordinary meaning of the words used.
It is clear, from the context in which the words “the applicant needs to be an Australian citizen” are used, that subsection 22A(1) is intended to alleviate hardship which may arise from the application of the general residence requirement in section 22. The subsection is only applicable where an applicant is proposing to engage in an activity which would be of benefit to Australia.
While the Minister emphasises the element of “requirement” in the definition of need, the definition also has an element of want. Had Parliament intended that the exemption provided by the subsection would only apply if an applicant was obliged or required to be a citizen it would have said so in simple terms. It would have been sufficient to provide that “the applicant is required to be an Australian citizen to engage in the activity”.

Parliament chose not to use the word “required”, with its connotations of obligation. In addition, it also added the words “in order” to engage in the specified activity. These words must be given meaning. The Macquarie Dictionary defines “in order to” as meaning “as a means to”. This supports an interpretation of the subparagraph which does not impose an obligation for citizenship, but which requires an applicant to show more than just a personal want.
Mr Fatovic has established that he needs Australian citizenship in order to engage in the activity of coaching the team at the 2021 Summer Olympics as:
·it will assist him in bonding with the team and thereby improving its chances of success;
·it will assist overall team morale;
·it will reduce the risk of his being subject to different travel restrictions to other team members when travelling internationally;
·by assisting in the ways referred to, it will enable him to meet the expectations of his employer as outlined in the copy correspondence set out in paragraphs XXXX above.
I have not applied the Citizenship Policy in reaching my conclusion on this issue. A government policy cannot amend an Act of Parliament. By providing that an applicant must be “required” to have Australian citizenship for subparagraph 22A(1)(a)(iii) to apply, it seeks to change the words “needs to” used by Parliament to the words “is required to”. This a policy maker cannot do.[8]
[8] Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634, 640.
F. CONCLUSION
For the reasons set out above I am satisfied that Mr Fatovic meets the requirements of subparagraphs 22A(1)(a)(i), (ii) and (iii) of the Act.
The decision made on 3 May 2019 to refuse Mr Fatovic’s application for Australian citizenship by conferral will be set aside and the matter will be remitted to the Minister with a direction that it be reconsidered in accordance with these reasons for decision.

I certify that the preceding 41 (forty -one) paragraphs are a true copy of the reasons for the decision herein of Deputy President J W Constance

.................................[SGD].......................................
Associate
Dated: 7 August 2020

Date(s) of hearing: 5 June 2020

Solicitors for the Applicant: L Omidvar, Playfair Visa and Migration Services

Solicitors for the Respondent: S Prasad, Minter Ellison

[2020] AATA 2792

7 August 2020

Key Legal Topics

Areas of Law

Administrative Law

Immigration

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Remedies

Date(s) of hearing:	5 June 2020
Solicitors for the Applicant:	L Omidvar, Playfair Visa and Migration Services
Solicitors for the Respondent:	S Prasad, Minter Ellison