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

This matter concerned an application for Australian citizenship by conferral by Mr Fatovic, a Croatian citizen and internationally recognised water polo coach. Mr Fatovic sought to rely on the special residence requirement under section 22A of the *Australian Citizenship Act 1948* (Cth) as he did not meet the general residence requirement. The Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs had refused his application. The Administrative Appeals Tribunal was required to determine whether Mr Fatovic met the special residence requirement.

The Tribunal was asked to consider three issues: first, whether Mr Fatovic was seeking to engage in an activity specified under subsection 22C(1) of the Act; second, whether his engagement in that activity would be of benefit to Australia; and third, whether Mr Fatovic needed to be an Australian citizen to engage in the activity. The Minister argued that the role of a coach was not encompassed by the specified activity of "participation in an Australian team" and that the Citizenship Policy, which stated an applicant must be "required" to be an Australian citizen, was determinative.

The Tribunal found that the term "participation" in an Australian team was not limited to active competitors but included those who formed part of the team, such as a Head Coach. It reasoned that a narrow interpretation, as suggested by the Minister, was not justified by the wording of the Act. Furthermore, the Tribunal held that a government policy could not amend an Act of Parliament, and therefore, the Citizenship Policy's use of "required" instead of the Act's "needs to" was unlawful. The Tribunal concluded that Mr Fatovic met the requirements of subparagraphs 22A(1)(a)(i), (ii), and (iii) of the Act.

Consequently, the Tribunal set aside the decision to refuse Mr Fatovic's application for Australian citizenship by conferral and remitted the matter to the Minister for reconsideration in accordance with the Tribunal's reasons.