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

[2020] AATA 1774

Fedorov and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Citizenship) [2020] AATA 1774 (16 June 2020)

Division:GENERAL DIVISION

File Number:          2019/1803

Re:Evgeny Fedorov

APPLICANT

AndMinister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

RESPONDENT

DECISION

Tribunal:Senior Member C.J. Furnell

Date:16 June 2020

Place:Melbourne

The Tribunal sets aside the decision under review and remits the matter to the Respondent in accordance with the direction that the Applicant be considered to satisfy the criteria in s22B(1)(a) and s22B(1)(b)(i) of the Australian Citizenship Act 2007.

..........[sgd]..........................................................

Senior Member C.J. Furnell

Catchwords

CITIZENSHIP – residency requirements – special residency requirement – whether person engaged in work on a resources installation – nature of duties as production technician on floating liquefied natural gas facility – facility located beyond Australia’s coastline – person required to regularly travel outside of Australia – decision set aside and remitted

Legislation

Acts Interpretation Act 1901
Australian Citizenship Act 2007
Customs Act 1901
Excise Act 1901
Migration Act 1958
Passenger Movement Charge Act 1978
Quarantine Act 1908

Seas and Submerged Lands Act 1973

Cases

CPCF v Minister for Immigration and Border Protection [2015] 255 CLR 514
Ruddock v Vadarlis (2001) 110 FCR 491

Syrett and Minister for Immigration and Border Protection (Citizenship) [2019] AATA 107

Secondary Materials

LexisNexis, Halsbury’s Laws of Australia

Minister for Immigration and Citizenship (Cth), Special Residency Requirement (section 22C), (IMMI 13/056, 29 May 2013)

REASONS FOR DECISION

Senior Member C.J. Furnell

16 June 2020

1. On 6 March 2019 a delegate of the Respondent decided not to approve Mr Fedorov’s application for citizenship. Certain criteria for eligibility to become an Australian citizen were considered not to have been met in his case.

2. Mr Fedorov has applied to the Tribunal for review of that decision.

3. In the course of this review the focus of each party’s submissions has been on the criteria which the Respondent’s delegate considered had not been met.

4. Put briefly, I have concluded that those criteria are met. Accordingly, I have decided to set the delegate’s decision aside and remit the matter to the Respondent for reconsideration in accordance with a direction requiring that the relevant criteria be considered to have been met.

5. My reasons for this decision are outlined below. Before getting to those reasons, however, I should first say something about the factual and legislative context.

   FACTUAL AND LEGISLATIVE CONTEXT

6. Mr Fedorov first arrived in Australia in 2007 and has held a Permanent Employer Nomination Scheme visa (subclass 186) since 8 April 2015.

7. On 12 February 2018 he applied for citizenship by conferral.

8. Under s24(1A) of the Australian Citizenship Act 2007 (the Act) the Respondent was obliged not to approve that application unless Mr Fedorov was eligible to become an Australian citizen under subsection 21(2), (3), (4), (5), (6), (7) or (8) of the Act.

9. In this matter it is not suggested that any provision other than 21(2) of the Act could apply.[1]

   [1] Section 21(3) concerns incapacity; s21(4) concerns applicants over 60 or impaired; s21(5) concerns applicants under 18; s21(6) concerns applicants with an Australian citizen parent; s21(7) concerns applicants born in Papua; s21(8) concerns applicants born in Australia and stateless.

10. Under s21(2) of the Act, Mr Fedorov would have been eligible to become an Australian citizen if the Minister had been satisfied that he met a number of cumulative criteria, one of which is a residency requirement.

11. The residency requirement is assessed at the time of the relevant application. Mr Fedorov would be considered to have satisfied that requirement if, at that time, he satisfied the general residence requirement (set out in s22 of the Act), a special residence requirement (set out in s22A or 22B of the Act) or the defence service requirement (set out in s23 of the Act).

12. There is no suggestion that Mr Fedorov satisfies the special residence requirement of s22A or the defence service requirement of s23.

13. This leaves the issue of whether he meets the general residence requirement of s22 or the special residence requirement of s22B.

14. As for the general residence requirement, Mr Fedorov concedes that he does not satisfy it. He was right to do so. He was absent from Australia:

    ·For more than 12 months of the four-year period immediately before making his application for citizenship on 12 February 2018 (see ss22(1)(a) and 22(1A) of the Act);[2] and

    ·For more than 90 days of the 12-month period immediately before making his application for citizenship on 12 February 2018 (see ss22(1)(c) and 22(1B) of the Act).[3] 

    [2] Mr Fedorov accepts that he was absent from Australia for a total of around 758 days in the 4-year period.

    [3] Mr Fedorov accepts that he was absent from Australia for a total of around 155 days in the 12-month period.

15. The real questions in issue in this proceeding concern the application of the special residence requirement set out in s22B of the Act.

    Special residence requirement: s22B

16. A number of criteria need to be met in order to satisfy this requirement.

17. As applied to Mr Fedorov those criteria include that:

    ·At the time he made his application for citizenship (12 February 2018), he was engaged in work of a kind specified under s22C(3) of the Act and was required to regularly travel outside Australia because of that work (s22B(1)(a) of the Act); and

    ·For a total of at least two years during the period of four years immediately before he made his application for citizenship (12 February 2018) he was engaged in that kind of work (s22B(1)(b)(i) of the Act). 

18. In the decision the subject of review it was these criteria that the Respondent’s delegate concluded had not been met.

19. Section 22C(3) of the Act empowers the making of legislative instruments specifying kinds of work for the purpose of s22B(1)(a). Such an instrument has been so made, being instrument IMMI 13/056 dated 29 May 2013[4] (and effective from 29 June 2013) (the May 2013 instrument).

    [4] T3, 50.

20. Work of a kind specified in the May 2013 instrument includes work undertaken “as part of …[the relevant person’s] duties in which …[the person] is…engaged in work on a resources installation or a sea installation.” 

21. Accordingly, in order to assess whether Mr Fedorov meets the special residence requirement set out in s22B, it is first necessary to understand the kind of work he engaged in, both at the time he applied for citizenship and in the four-year period preceding his application.

    Kind of work engaged in by Mr Fedorov

22. By letter dated 9 February 2018[5] an “HR Account Manager” of Shell Australia Pty Ltd advised that Mr Fedorov:

    ·Had been employed since 20 April 2015;

    ·Had been “mobilised” to South Korea between 16 July 2015 and 31 August 2017, being part of “the operations team on Prelude, a ‘resource installation’ under the Migration Act”;

    ·Transitioned to an Australian contract as from 1 September 2017; and

    ·Was currently employed by Shell Australia FLNG Pty Ltd as a production technician, a role to be “performed solely from Australia from this point onwards.”

    [5] T4, 153.

23. While the letter of 9 February 2018 refers to Mr Fedorov’s current employment as a production technician, Mr Fedorov’s uncontested evidence was that he had been continuously employed in that capacity since April 2015 by members of the Shell group of companies in relation to the Prelude FLNG project.[6]   

    [6] Exhibit R4: applicant’s statement of evidence of 2 October 2019 (statement of evidence). The Respondent accepts that Mr Fedorov has been so employed: see its Statement of Facts, Issues and Contentions of 6 December 2019 (R SFIC) at [6].

24. The contract under which Mr Fedorov was said to have mobilised to South Korea in July 2015 is set out in a letter of 8 July 2015 outlining an offer of employment by Shell Korea Limited.[7]  The title of the job on offer was said to be “Production Technician – LNG in the Prelude department”.

    [7] Exhibit R3.

25. The Australian contract to which Mr Fedorov was said to have transitioned as from 1 September 2017 is set out in a letter of 5 May 2017 outlining an offer of employment by Shell Australia FLNG Pty Ltd, an offer accepted by Mr Fedorov on 22 May 2017 (his “current contract”).[8]  It describes his position as “production technician”.[9] 

    [8] Exhibit A1.

    [9] Current contract, schedule 1.

26. The nature of the work he undertook in his capacity as a production technician in relation to the Prelude FLNG project is identified in a Shell Australia Pty Ltd, undated, job description document.[10]  In it:

    ·The project was described as one involving a Floating Liquefied Natural Gas facility (the Prelude facility).

    ·The role as production technician LNG was said to be located, during the Project phase, onboard the facility in a shipyard in South Korea and, during the Operations phase, offshore Western Australia.

    ·In terms of the Project phase, main duties and responsibilities were described as involving, amongst other things, participating in offshore facility construction, commissioning and yard operation and participation in offshore construction.

    ·In terms of the Operating phase, main duties and responsibilities were described as involving, amongst other things, carrying out first line maintenance tasks and assisting in continuous safe and efficient operation. 

    ·International travel readiness was said to be required, with the position requiring regular domestic and international travel.

    [10] Exhibit A2.

27. Given this job description, it is apparent that Mr Fedorov’s duties as a production technician would have required him to engage in work onboard the Prelude facility, both before and after construction completion. I also note that when Mr Fedorov was undertaking his duties during the Project phase the facility would have been offshore.

28. From these facts I infer that, for so long as Mr Fedorov has been involved with the Prelude facility, it has been either a vessel or a floating structure.

29. I turn now to consider how Mr Fedorov’s role as a production technician fits in with those of the s22B special residence requirement criteria I mentioned earlier.

    Was that kind of work on a resources installation?

30. In order to satisfy s22B of the Act, Mr Fedorov was required to have been engaged in work of a kind specified in s22C(3) on 12 February 2018 and in at least two of the four years preceding 12 February 2018.

31. Given the terms of the May 2013 instrument, he would satisfy that requirement at a particular time if the work he undertook at that time in his role as a production technician was undertaken “as part of …[his] duties in which …[he] is…engaged in work on a resources installation or a sea installation.”

32. Put another way, he would satisfy that requirement at a particular time if his work duties as a production technician in relation to the Prelude facility at the time necessitated that he engage in work on a resources installation.

33. In his statement of evidence[11], Mr Fedorov described the Prelude facility as a “floating liquefied natural gas platform that was built in South Korea”, construction of which officially started in October 2012. It was said by Mr Fedorov to have arrived on site in Western Australian waters in July 2017, with production commencing in December 2018 (albeit that offloading of cargo from the facility did not occur until June 2019).

    [11]  Exhibit R4.

34. Subject to one qualification to which I will return later, I accept this description. The Respondent did not take issue with it and, indeed, the RSFIC attached material corroborating aspects of it.

35. Further, (as stated earlier) I infer that at all times relevant to Mr Fedorov’s role with respect to the Prelude facility it was either a vessel or a floating structure, a vessel or structure that was in South Korea until around July 2017.[12]

    [12] Exhibit R2: press release announcing the departure of the Prelude facility form South Korea on 29 June 2017.

36. Does the Prelude facility so described constitute a “resources installation” for the purposes of the May 2013 instrument?

37. The instrument does not contain a definition of the term. At the time when it was made, however, only five Commonwealth Acts employed it (not including amending Acts).

38. The Customs Act 1901 contained a definition of the term in s4. It refers to a resources industry fixed structure and a resources industry mobile unit. The latter concept is defined in that Act so as to encompass a vessel, or a structure that is able to float and move or be floated and moved, that is used, “or to be used,” offshore wholly or principally in certain activities. The activities of relevance include exploiting natural resources by drilling the seabed or its subsoil with equipment on or forming part of the vessel or structure or by obtaining substantial quantities of material from the seabed or its subsoil with equipment of that kind, or operations associated with such activities.[13] 

    [13] Customs Act 1901 ss4(6)-(9A).

39. Each of the Excise Act 1901[14] and Passenger Movement Charge Act 1978[15], while employing the term “resources installation,” simply adopted the definition of it found in the Customs Act 1901.

    [14] Excise Act 1901 ss4A(4), 87A.

    [15] Passenger Movement Charge Act 1978 s3.

40. The Quarantine Act 1908 (no longer in force) employed the term. While not adopting the Customs Act 1901 definition, it nevertheless gave to the term the same meaning as is given it in the Customs Act 1901.[16] 

    [16] Quarantine Act 1908 ss5(1), (3), (4).

41. Lastly, the Migration Act 1958 reflected the Quarantine Act 1908 approach. While not adopting the Customs Act 1901 definition of it, the definition it gave to the term reflects that given in the other four Acts I mentioned.[17] Indeed, in its SFIC of 6 December 2019 at [46], the Respondent contended that the Migration Act definition afforded guidance as to the meaning to be applied in the circumstances.

    [17] Migration Act 1958, ss5(1), (10)-(13).

42. Hence, a uniform meaning has been given to the “resources installation” term in Commonwealth legislation. This uniformity forms part of the context within which the May 2013 instrument ought be construed. It suggests that a similar meaning was intended to have been given to the term when it was employed in the instrument, a suggestion reinforced by the absence from the May 2013 instrument of any indication of an intent to give to the term a meaning different from the meaning uniformly given it when employed in other legislative contexts.

43. Accordingly, and as, to an extent, intimated by the Respondent, I find that the meaning to be given to the term “resources installation” when used in the May 2013 instrument corresponds to the meaning given it in legislation such as the Migration Act 1958.

44. Giving that term that meaning when employed in the May 2013 instrument has the Prelude facility constituting a resources installation for the purposes of the instrument. At all relevant times the facility was either a vessel or a structure able to float and move, one used “or to be used” wholly or principally in the relevant activities.

45. I say that this is the case “at all relevant times”. It is clear that this is so when the issue is considered at the time Mr Fedorov applied for citizenship. By February 2018 the Prelude facility had moved from South Korea and was floating off the Western Australian coast. It is also the case, however, when the issue is considered at the time of Mr Fedorov’s involvement with the facility during its Project phase, that is, when he was involved in its construction in South Korea. At that time Mr Fedorov’s role was apparently one to be undertaken “onboard” the facility, while it was offshore. Indeed, the Respondent characterised Mr Fedorov’s role at that time as one which “involved offshore construction”.[18]  As I indicated earlier, from this I infer that at the time of Mr Fedorov’s involvement with it during its “Project phase” the facility was either a vessel or a floating structure, one that was clearly intended “to be used” in the relevant activities.

    [18] RSFIC [7].

46. I note that having the May 2013 instrument apply at a time when a vessel or structure is “to be used” in relevant activities but is not then being so used is inconsistent with a conclusion arrived at in the 2019 decision of the Tribunal in Syrett.[19] There it was said that a facility had to be operational before a person working on it could be considered to be working on a resources installation.[20] Hence, in that case, a person who had been working on the construction of a facility was not considered to have been engaged in working on a resources installation.

    [19] Syrett and Minister for Immigration and Border Protection (Citizenship) [2019] AATA 107 (“Syrett”).

    [20] Syrett at [21]-[22].

47. The legislative uniformity of approach to the meaning of “resources installation” would not appear to have been brought to the attention of the presiding Senior Member. Instead, the conclusion he arrived at in Syrett was, in large part, based on there being no express reference in the May 2013 instrument to construction, both in relation to resources installations and in relation to other kinds of work identified in the instrument (such as work undertaken as part of a person’s duties in which the person is a member of the crew of a ship or of an aircraft).[21]  

    [21] Syrett at [20].

48. An express reference to construction in the May 2013 instrument would certainly have served to clarify the position in one direction. Any uncertainty engendered by the absence of such a reference, however, is not determinative of a result in the other direction. This is especially the case in a context where:

    ·The uniform meaning given to the resources installation term in legislative instruments had it encompassing vessels and structures “to be used” to exploit natural resources; and

    ·No rationale for favouring operating phase workers over those involved in project construction or commissioning is evident.

49. Support for the conclusion arrived at in Syrett was also said to be found in the express reference to “offshore oil rig workers” in the second reading speech of the Bill which inserted s22B into the Act.[22] I do not, however, consider that this reference affords any material support for that conclusion. There is no suggestion that the speech was intended to identify exhaustively the kinds of work to which the section was intended to apply. Indeed, the specification of those kinds of work was left to be defined by instrument under s23C of the Act. Further, the speech was made in 2009 while the May 2013 instrument was not made until (surprisingly) May 2013.

    [22] Syrett at [23].

50. Any inconsistency that would appear to result from having the May 2013 instrument apply to those undertaking the construction of, for example, an offshore oil rig, but not to those involved in the construction of a ship or aircraft is addressed (or, at least, substantially ameliorated) by other aspects of the instrument.

51. First, the concept of resources installation is, in a relevant sense, limiting. It only applies to a vessel or a structure able to float and move or be floated and moved. Hence, preliminary design or construction work with respect to something intended to become a vessel or intended to become such a structure would not be work on a resources installation.

52. Second, such preliminary work would not be work “on” a resources installation. As the Respondent submits,[23] this requires work to be undertaken at the physical location of the installation, that is, at the physical location of the relevant vessel or structure that is able to float and move or be floated and moved. As contended by the Respondent (and not disputed by Mr Fedorov), the requirement for work to be undertaken “on” a resources installation can only be met by work that is spatially connected to the location of the installation, “much like work on a ship or work on an aircraft as a crew member”.[24]

    [23] RSFIC at [49].

    [24] RSFIC at [54].

1. At all relevant times Mr Fedorov’s work was at the physical location of the Prelude facility. As is clear from the job description I previously outlined, during the Project phase of the Prelude facility Mr Fedorov’s role required that he be onboard the facility. After the Prelude facility was moved from South Korea and Mr Fedorov became subject to his current contract, his work was required to be performed “on the Facility”.[25] His position was to be permanently located offshore requiring that he work a rotating cycle “on the Facility”.[26]

   [25] Current contract, schedule 1, “initial work location”.

   [26] Current contract, schedule 2.

2. Given that Mr Fedorov commenced his work in relation to the Prelude facility in April 2015 (that is, roughly 34 months before he made his application for citizenship) or July 2015[27]  (that is, roughly 31 months before he made his application for citizenship) and given my conclusion that the Prelude facility was at all relevant times a resources installation on which Mr Fedorov was engaged in work, s22B(1)(b)(i) of the Act is satisfied. For a total of at least 2 years during the period of 4 years immediately before he made his application for citizenship (12 February 2018) he was engaged in the requisite kind of work.

   [27] T4, 153: Shell Australia letter of 9 February 2018 stating Mr Fedorov was mobilised to South Korea between 16 July 2015 and 31 August 2017.

3. Similarly, that aspect of s22B(1)(a) of the Act that requires that he have been engaged in the requisite kind of work when he made his application for citizenship is satisfied. Mr Fedorov was engaged in work of that kind on12 February 2018.

4. Contrary to what the Respondent would appear to be contending,[28] acceptance of the proposition that working “on” a resources installation requires that work be undertaken at the physical location of the installation does not mean that Mr Fedorov had to have been physically located on the Prelude facility when he applied for citizenship.

   [28] RSFIC [30]-[31]

5. Mr Fedorov’s physical location at the time of his application is irrelevant, just as it would have been if his application had been based on him being a member of the crew of a ship or aircraft. As I have stated, the May 2013 instrument includes a kind of work undertaken “as part of …[the relevant person’s] duties in which …[the person] is…engaged in work on a resources installation or a sea installation.”  As I construe the instrument, this encompasses a kind of work the duties of which include a requirement that work be engaged in “on” a resources installation. Hence, the question of whether Mr Fedorov’s work is of the requisite kind at the time he applied for citizenship is one to be assessed by reference to the nature of his duties at that time. In this regard, it is clear from the production technician job description previously outlined and from the terms of the current contract that, on 18 February 2018, Mr Fedorov’s duties as an employee did require that work be engaged in “on” the Prelude facility, that is, the duties did require that work be undertaken at the physical location of the Prelude facility.

6. Accordingly, as I have found that the Prelude facility was then a resources installation, Mr Fedorov satisfies the s22B(1)(a) requirement that, at the time he made his application for citizenship, he was engaged in work of a kind specified under s22C(3) of the Act.

7. Some support for this focus on duties rather than actual activities at the time an application for citizenship is made is found in the terms of s22B(1)(a) of the Act. That section calls for an assessment not only of the kind of work engaged in by the applicant but also an assessment of the applicant’s travel requirements. The latter assessment is of requirements that applied when the citizenship application was made, not an assessment of what was actually taking place when the application was made. As I see it, a focus on whether an applicant was required to travel (as opposed to whether the applicant was, in fact, travelling) at the relevant time is consistent with a focus on work duties of the applicant (as opposed to actual work activities of the applicant) at the relevant time. Moreover, it seems to me that it would be inconsistent on the one hand to require that an applicant be required to travel while on the other hand to insist that an applicant be at a particular physical location when making his or her citizenship application.

8. I turn now to address that travel aspect requirement.

   Required to regularly travel outside Australia?

9. I mentioned earlier that I have accepted Mr Fedorov’s description of the Prelude facility subject to one qualification.

10. The qualification concerns the statement that the Prelude facility was in Western Australian waters as from July 2017. That statement was echoed by the Respondent who contended that Mr Fedorov was not required to work outside Australia after July 2017 because he was then working on the Prelude facility which, according to the Respondent, was then in Australian waters. The Respondent’s perspective would seem to be one shared by Mr Fedorov’s employer, given Shell Australia’s view that Mr Fedorov’s role under the current contract is one to be “performed solely from Australia”[29] (albeit that 4.1 of the current contract clearly stipulates that “you may be required to work…overseas”).

    [29] T4, 153: Shell Australia letter of 9 February 2018.

11. The underlying proposition is that the Prelude facility was, at least as from July 2017, in Australia. I do not accept that proposition.

12. I appreciate that the question of whether a facility (or person) is or is not in Australia may well be affected by the legislative context in which the question arises. For example, under the Customs Act 1901[30], the Excise Act 1901[31]  and the repealed Quarantine Act 1908[32], certain resources installations are deemed to be part of Australia. Under the Migration Act 1958, the area of certain resources installations is deemed to comprise part of Australia’s migration zone[33] and a resources installation will be deemed to have entered Australia[34] when it becomes attached to the Australian seabed (a concept defined in a way that goes beyond simply Australia’s territorial sea).[35]  

    [30] Customs Act 1901 s5C.

    [31] Excise Act 1901 s4A.

    [32] Quarantine Act 1908 s16AA.

    [33] Migration Act 1958 s5(1).

    [34] Migration Act 1958 s5(6).

    [35] Migration Act 1958 s5(1).

13. All these examples are of matters specific to the legislation under which they arise. Hence, the Respondent might well be correct in contending that, after July 2017, the Prelude facility was in Australian waters, at least for the purposes of, for example, the Migration Act 1958.

14. In this proceeding, however, we are dealing with the Act and, for its purposes, Australia is defined simply so as to include the external Territories.[36] While this enlarges to some extent what would normally be considered to be the geographical extent of Australia, it does so only by inclusion of the external Territories.

    [36] The Act s3.

15. What would normally be considered to be the geographical extent of Australia is clarified in the Acts Interpretation Act 1901. Pursuant to s2B of that Act a reference to “Australia” in any Act is said to mean the Commonwealth of Australia and, when used in a geographical sense, includes Norfolk Island, the Territory of Christmas Island and the Territory of Cocos (Keeling) Islands, but does not include any other external Territory. This meaning is then expanded upon in s15B. Pursuant to that section, a reference in an Act to Australia is taken to include a reference to the coastal sea of Australia, being the territorial sea of Australia and the sea on the landward side of the territorial sea (and including the airspace over, and the seabed and subsoil beneath, any such sea).

16. Hence, paraphrasing, the ordinary meaning of “Australia” in a statute extends to certain external territories (and, in the Act, all the external Territories) and the “territorial sea”.[37] 

    [37] Ruddock v Vadarlis (2001) 110 FCR 491 at [45].

17. Australia’s territorial sea is “a belt of sea adjacent to its coast”.[38] The width of that belt was expanded by proclamation under the Seas and Submerged Lands Act 1973 so that, on 20 November 1990, it increased from three nautical miles to 12 nautical miles.[39] 

    [38] LexisNexis, Halsbury’s Laws of Australia, 215 Foreign Relations, ‘3 Territory and Jurisdiction’ [215-185] (at 3 January 2018).

    [39] Ibid [215-160].

18. Accordingly, ignoring the external Territories, a person or facility outside that 12 nautical mile limit would not fall within the territorial sea and, as such, would not be in Australia, given its ordinary statutory meaning.

19. A person or facility might be located in an area over which Australia may exercise some authority or has asserted limited sovereignty, but this does not mean the person of facility is in Australia.

20. In its contiguous zone[40] Australia may “exercise the control necessary to … prevent infringement of its customs, fiscal, immigration or sanitary laws and regulations within its territory or territorial sea”.[41] That zone is not, however, part of Australia.[42]

    [40] See Seas and Submerged Lands Act 1973, Division 2A.

    [41]LexisNexis, Halsbury’s Laws of Australia, 215 Foreign Relations, ‘3 Territory and Jurisdiction’ [215-240] (at 3 January 2018).

    [42] CPCF v Minister for Immigration and Border Protection [2015] 255 CLR 514 at [78] per Hayne and Bell JJ.

21. Australia has asserted sovereignty for the purposes of exploration and exploitation of its natural resources over the continental shelf adjacent to Australia’s coast but outside its territorial waters.[43]  While, as a result, Australia may have jurisdiction to explore for and exploit natural resources in the continental shelf, the sovereignty so asserted is not expressed to extend to the airspace over it, unlike the expression of sovereignty with respect to the territorial sea.[44] Indeed, according to the learned authors of Halsbury’s Law of Australia, this assertion of sovereignty does not “affect the status of the waters above the shelf, or of the airspace above the waters.”[45] Hence, for example, a person travelling in a helicopter over the continental shelf would not be travelling in Australia, as its geographical extent is generally understood in the context of Commonwealth legislation.

    [43] Seas and Submerged Lands Act 1973, s11 wherein the sovereign rights of Australia as a coastal State in respect of the continental shelf of Australia, for the purpose of exploring it and exploiting its natural resources, are vested in and exercisable by the Crown in right of the Commonwealth.

    [44] Compare Seas and Submerged Lands Act 1973, s6 to s11. Section 6 states that “It is by this Act declared and enacted that the sovereignty in respect of the territorial sea, and in respect of the airspace over it and in respect of its bed and subsoil, is vested in and exercisable by the Crown in right of the Commonwealth”.

    [45] LexisNexis, Halsbury’s Laws of Australia, 215 Foreign Relations, ‘3 Territory and Jurisdiction’ [215-160]; [215-265] (at 3 January 2018).

22. A Shell International media relations press release of 29 June 2017[46] stated that the Prelude facility was to be located at the Prelude offshore gas field “475 kilometres (295 miles) north-north east of Broome, Western Australia.” From this I infer that the facility is located more than 12 nautical miles offshore from the Western Australian coast, an inference corroborated by maps indicating the location of the facility.[47] I also infer that, in his regular trips to and from the Prelude facility, Mr Fedorov regularly found himself located more than 12 nautical miles offshore from the Western Australian coast.  

    [46] Exhibit R2.

    [47]See, for example, these images:

    <>

    On the basis of each of these inferences I find that, when he made his application for citizenship on 12 February 2018, Mr Fedorov was required to regularly travel outside Australia because of his work on the Prelude facility. This is because, as I see it, if a person or facility is beyond Australia’s coastline by more than 12 nautical miles, the person or facility is (for the purposes of the Act) outside Australia.

    SUMMARY AND CONCLUSION

23. I find that Mr Fedorov satisfies the criteria in s22B(1)(a) and s22B(1)(b)(i) of the Act. In particular:

    ·At the time he made his application for citizenship, he was engaged in work of a kind specified under s22C(3) of the Act and was required to regularly travel outside Australia because of that work.

    ·For a total of at least two years during the period of four years immediately before he made his application for citizenship he was engaged in that kind of work.

24. Accordingly, I have decided to set the decision the subject of review aside and remit the matter to the Respondent for reconsideration in accordance with the direction that the foregoing criteria are to be considered satisfied.

I certify that the preceding 77 (seventy-seven) paragraphs are a true copy of the reasons for the decision herein of Senior Member Chris Furnell

.......[sgd]......................................

Associate

Dated: 16 June 2020

Date of hearing:

25 May 2020

Advocate for the Applicant:

Solicitors for the Applicant:

Yulia Moiseeva

Yulia Moiseeva and Associates

Advocate for the Respondent:

Rachel Noronha

Solicitors for the Respondent:

Clayton Utz