HLLL and Minister for Immigration and Border Protection (Citizenship)

[2018] AATA 771

HLLL and Minister for Immigration and Border Protection (Citizenship) [2018] AATA 771 (29 March 2018)

Division:GENERAL DIVISION

File Number(s):      2017/2780

Re:HLLL

APPLICANT

AndMinister for Immigration and Border Protection

RESPONDENT

DECISION

Tribunal:Senior Member D. J. Morris

Date:29 March 2018

Place:Melbourne

The Tribunal affirms the decision under review.

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

Senior Member D. J. Morris

CITIZENSHIP – application for citizenship by conferral – applicant unable to satisfy general residence requirement – whether special residence requirements met – scope of delegate’s decision – requirements not met – decision affirmed

Legislation

Administrative Appeals Tribunal Act 1975, ss 35, 37
Australian Citizenship Act 2007, Preamble, ss 3, 21, 22, 22A, 22B, 24, 53

Acts Interpretation Act 1901, ss 15AA, 36

Cases

Re Owoeye and Minister for Immigration and Border Protection [2018] AATA 72
Re Ravi and Minister for Immigration and Border Protection [2016] AATA 1022
Re Drake and Minister for Immigration and Ethnic Affairs (No 2) [1979] AATA 179

Secondary Materials

Department of Immigration and Border Protection Citizenship Policy, June 2016

Macquarie Dictionary, Seventh Edition (2017)

REASONS FOR DECISION

Senior Member D. J. Morris

29 March 2018

Preliminary

1. The Tribunal has made an order in this matter under section 35 of the Administrative Appeals Tribunal Act 1975 (the AAT Act) prohibiting the publication of the name of the Applicant in this matter or any material that might tend to identify the Applicant.  The Applicant will be referred to by a randomly-generated acronym ‘HLLL’.

2. HLLL is a citizen of Iran.  HLLL arrived in Australia in March 2009 on a Permanent General Skilled Migration (subclass 136) visa and is presently the holder of a Resident Return (subclass 155) visa.

3. On 7 September 2015 HLLL applied for Australian citizenship by conferral.  On 15 March 2016 this application was refused by a delegate of the Respondent on the grounds that the Applicant did not meet the residence requirement of section 21(2) of the Australian Citizenship Act 2007 (the Act).  The delegate found that the Applicant did not satisfy the general residence requirement under section 22 of the Act as HLLL did not satisfy sections 22(1)(a) and 22(1)(c) of the Act.  The delegate further found that HLLL did not satisfy the special residence requirement under section 22B of the Act because he did not satisfy the ‘ordinarily resident’ requirement under section 22B(1)(e).

4. On 27 August 2016, HLLL again applied for Australian citizenship by conferral.  The Applicant sought consideration under section 22B(1)(e) of the Act and, in relation to the delegate’s finding in relation to the decision on his first citizenship application, HLLL requested that the ministerial discretion available under section 22B(1A) be exercised in the Applicant’s favour.  On 19 April 2017 the delegate refused HLLL’s second citizenship application, on the basis that the delegate was again not satisfied that the Applicant met the residence requirement under section 21(2)(c) of the Act.  It is this decision of 19 April 2017 that is the subject of this review.

5. The hearing was held on 1 December 2017. The Applicant represented himself, made submissions and gave evidence, and was cross-examined by Mr Jamie Grant, representing the Respondent. Parties each lodged statements of facts, issues and contentions and the Respondent lodged documents under section 37 of the AAT Act, which were, together with other documents submitted, taken into evidence.

6. After the hearing, at the Tribunal’s request, both parties made further submissions in relation to HLLL’s employment at the time he made his citizenship application.  All this material was taken into account.

   The law

7. Section 24(1) of the Act provides that if a person makes an application under section 21, the Minister must, in writing, approve or refuse to approve the person becoming an Australian citizen.  Section 24(1A) of the Act says that the Minister or a person delegated by the Minister under section 53 of the Act:

   …must not approve the person becoming an Australian citizen unless the person is eligible to become an Australian citizen under subsection 21(2), (3), (4), (5), (6), (7), or (8).

8. Section 21(2) of the Act sets out that to be eligible for Australian citizenship by conferral, a person must satisfy eight eligibility requirements.  Section 21(2)(c) of the Act sets out that an applicant must satisfy the general residence requirement in section 22, the special residence requirement in section 22A or 22B or the defence service requirement in section 23 at the time he or she makes the application.

9. A person satisfies the general residence requirement under section 22(1) of the Act if:

   (a)the person was present in Australia for the period of 4 years immediately before the day the person made the application; and

   (b)the person was not present in Australia as an unlawful non-citizen at any time during that 4 year period; and

   (c)the person was present in Australia as a permanent resident for the period of 12 months immediately before the day the person made the application.

10. Section 22(1A) of the Act provides that if the person was absent from Australia for a part of the period of four years immediately before the day the person made the application and the total period of the absence or absences was not more than 12 months, then for the purposes of section 22(1)(a) the person is taken to have been present in Australia during each period of absence.  In addition, if a person was absent from Australia for a part of the period of 12 months immediately before the day the person made the application, and the total period of the absence or absences was not more than 90 days, and the person was a permanent resident during each period of absence, then for the purposes of section 21(1)(c) of the Act, the person is taken to have been present in Australia as a permanent resident during each period of absence.

    Contentions of the Applicant

11. In this matter, the delegate found that HLLL did not satisfy the general residence requirement in section 22 because the Applicant did not satisfy sections 22(1)(a) and 22(1)(c) of the Act because he was absent for 621 days in the four year period before applying for citizenship.  Therefore the delegate found that section 22(1A) was not satisfied because it only allows for absences of up to 12 months.  The delegate found that HLLL also did not meet section 22(1)(c) of the Act as the Applicant was absent for 245 days in the 12 month period immediately before applying for citizenship, thus failing to satisfy section 22(1B) of the Act which, as set out above, only allows absences of up to 90 days in this period.

12. HLLL did not contest this part of the delegate’s decision.  The Applicant argued that he should be found to satisfy the special residence requirements provided for in the Act.

13. Section 22B(1)(a) of the Act states:

    (1) Subject to this section, for the purposes of section 21 a person satisfies the special residence requirement if:

    (a) at the time the person made the application, the person is engaged in work of a kind specified under subsection 22C(3) and the person is required to regularly travel outside Australia because of that work; ….

14. Section 22C(3) of the Act gives a power to the Minister to specify certain kinds of work that enable an applicant to satisfy the special residence requirement by making a legislative instrument.  On 29 May 2013 the Minister made such an Instrument, IMMI 13/056, which was before the Tribunal (T19, p 85).  This instrument sets out certain categories of employment or participation in specific Australian sporting teams which may satisfy the Minister that a person has met the special residence requirement, which are not relevant in this consideration. 

15. Schedule C of the Instrument is headed ‘Kinds of Work Specified for the purposes of paragraph 22B(1)(a) of the Act’.  HLLL drew the Tribunal’s attention to item 1(f) of IMMI 13/056 which states:

    The kinds of work are those undertaken as part of their duties in which a person is:

    […]

    (f)          A Scientist employed by:

    (i)an Australian university who has attained a PhD in their field of speciality and is undertaking research and development of benefit to Australia; or

    (ii)       Commonwealth Scientific and Industrial Research Organisation; or

    (iii)a medical research institute which is a member of the Association of Australian Medical Research Institutes (AAMRI).

16. HLLL conceded that the power under section 22B(1A) may only be exercised by the Minister personally, not by a delegate of the Minister.  This is set out in section 22B(6) of the Act.  HLLL also conceded that the Minister does not have a duty to consider whether to exercise the power under section 22B(1A), whether he or she is required to do so by the person (i.e. the person applying for citizenship) or by any other person.  HLLL submitted that his application met the prerequisite under section 22B(1A)(a) for the discretion under section 22B(1A) to be exercised.

17. HLLL contended that:

    “…the concept of “Scientist” in IMMI 13/056 is a broad and more inclusive one.  In other words, these provisions are not a merit only for those scientists employed in pure/basic science areas.  Moreover, according to different sources of definition, engineering itself is a branch of applied science and has a very close relationship with mathematics, physics and mechanics for solving real world problems.  Hence a research fellow who is doing a cutting edge research in engineering should not be regarded as a practicing [sic] engineer engaged in this profession as first respondent contends in a very strict sense.  Moreover, the applicant contends that his research is mainly about developing advanced mathematics models for solving sophisticated engineering problems which is evidenced by his papers published in the prestigious scientific journals and certified by his supervisor at [name of university].  Further it should be noted that the official academic positions in Australian universities are either research only, which are called research fellow positions, or those which include teaching as well, called lecturing positions.  However for further confirmation of the scientific nature of his work at [name of university], the applicant provided a recent support letter from his supervisor certifying that he is a scientist, a copy of which was presented in the first Tribunal conference…”

18. HLLL further submitted that, “because of the nature of [his] scientific work which demands regular travels to attend conferences, initiate bilateral collaborations, etc, [he] cannot meet the general residence requirement.”  The Applicant conceded that all of his regular travel for work since 2009 has been “to Iran, his home country” but contended that choosing his home country for enhancing his research collaboration is “very reasonable, more convenient and accessible”.

19. HLLL told the Tribunal that he first began seeking employment in Brisbane in 2010.  He lived for a time in Sydney and was short-listed for a position at the University of Wollongong, but missed out on that post.  He was subsequently engaged by a university in Victoria with a contract lecturer position from September 2013 (T9, p 71), in a position funded by an Australian Research Council grant.  The funding for that position ceased at the end of March 2016 and since then he said he has been employed on a casual basis at the same institution as a research fellow.  He told the Tribunal his field of expertise is predicting the remaining life of significant public infrastructure; he develops models which can be applied to bridges, tunnels and similar structures.

20. HLLL told the Tribunal he thought his casual employment started in June or July 2016.    He said he did not sign a casual employment form because there was no requirement for him to do so.  He said he was initially employed as a lecturer but was told his competencies would be better utilised if he were re-designated as a research fellow.  HLLL told the Tribunal that while he had permission to travel, the head of the school to which he was responsible did not require him to travel as part of his duties in this position.

21. HLLL said he had an ex-wife who lives in Australia; his marital relationship ended around the end of 2015, early 2016.  In terms of what specific research he was undertaking in August 2016 when he lodged his (second) citizenship application, HLLL said he was undertaking work on mathematical stochastic process and was publishing papers for the American Society of Engineers.  He told the Tribunal he was in Iran from October 2015 to January 2016 lecturing and assisting in the translation of academic textbooks.

22. HLLL said he was engaged in a special kind of work as a Scientist and had been living in Australia for 840 days in the four year period leading up to his application.  He said for part of that period he was living with his spouse (now his ex-wife), that he was a member of an Australian engineers professional body and he paid tax, which he said shows he has ties with Australia.  He said that his application should have been assessed against the special residence requirements.  HLLL submitted, at T1, p 5:

    Scientists are one of the qualified group of applicants who should be assessed on the grounds of special residency requirements.  Clearly the Act does not intend to give special merit to the scientists active in pure sciences hence this should be an inclusive definition of scientist not exclusive.  In fact I think that engineering science as an area of applied sciences has a very close relationship with basic/pure sciences such as physics and mathematics.  By definition an applied scientist conducts research with the aim of developing new technologies and practical methods.

    …

    There should not be discrimination between those scientists who are active in pure science with others active in engineering and applied science areas.   They both may need regular travels for enhancing their knowledge, networking, collaborating and presenting their scientific work findings in international conferences, workshops, etc.  The Act intends to facilitate citizenship to all those applicants who due to the nature of their work can not meet the general residence requirements, eg crew of a ship or an aircraft or a worker on a resources installation or a sea installation.

    Contentions of the Respondent

23. The Respondent contended that HLLL is a civil engineer and is not a Scientist (in the terms set out in IMM 13/056) and, further, that the Applicant was not for the whole or part of the four year period prior to making his application for citizenship when engaged in that work “required to regularly travel outside Australia for that work”.

24. The Respondent conceded that the ARC grant HLLL was employed under was of benefit to Australia but there was no evidence that, at the time of his citizenship application, he was engaged in work to Australia’s benefit.  Mr Grant submitted that HLLL’s work may be of relevance to all countries with heavy infrastructure but was not specifically tailored to Australia and that it cannot be said that “any research” undertaken in Australia is, by that fact alone, of benefit to Australia.  He said that HLLL’s own evidence was that his Australian university employer did not require him to travel, nor pay for the travel, and that the Applicant travelled to develop and manage his own academic networks.

25. The Respondent also submitted that, even if HLLL were able to satisfy the special residence requirements of sections 22B(1)(a) and (b) of the Act, he does not meet section 22B(1)(e) of the Act which requires that he was ordinarily resident in Australia throughout the four year period before his citizenship application.  In support of this contention, Mr Grant submitted the fact that HLLL has maintained a permanent abode in Iran throughout the period and, since his marriage break up, he has not maintained a permanent residence in Australia, instead staying with friends.

26. The Respondent said that HLLL was in Australia for brief periods between 26 March and 9 April 2009 and 22 to 29 October 2010 while living in Iran.  HLLL did not move to Australia to live and work until March 2013, so was not ordinarily resident for about the first six months in the four year period prior to the application.

27. The Respondent also noted that the discretion conferred on the Minister in relation to section 22B may only be exercised by the Minister personally and submitted that the Citizenship Policy document issued by the Department of Home Affairs (at the time the Department of Immigration and Border Protection) and used by officers, including delegates of the Minister in assessing applications, “confirms” that section 22B(1A) gives the Minister, in the Respondent’s words a “personal, non-compellable power” which has not been delegated by the Minister.  Accordingly, the Respondent submitted that the delegate had no power to consider the exercise of the section 22(1A) discretion and did not err by failing to consider this and that the Tribunal likewise has no power to exercise the discretion, or to require the Respondent to consider whether to exercise the discretion.

    Consideration

    General residence requirement

28. In reviewing whether the decision to refuse HLLL’s citizenship application was the correct decision in law and, if a discretionary power was exercised, whether that discretion was exercised in a preferable way, the Tribunal must first examine whether HLLL met the residence requirements.

29. As HLLL’s citizenship application was made on 27 August 2016, the Tribunal first examines the four year period before this day. Applying Item 5 in section 36(1) of the Acts Interpretation Act1901 (the Interpretation Act), this period commences on 26 August 2012. HLLL’s movement records were before the Tribunal (T16, p 108-111). They show that HLLL was absent from Australia on 26 August 2012, having departed Australia on 29 October 2010. He did not return to Australia until 18 March 2013. The movement record calculation is that HLLL was in Australia for 840 days in the four year period prior to applying for citizenship and absent from Australia for 621 days. This is greater than the period of absences of up to 12 months in four years which section 22(1A) permits an applicant to be treated as not being absent from Australia. In addition, HLLL was in Australia for 121 days in the 12 months immediately before applying for citizenship but absent for 245 days, which greatly exceeds the 90 days of absence that is allowed for in section 21(1)(c) of the Act.

30. The Tribunal finds that HLLL did not satisfy the general residence requirement of the Act in relation to the application he lodged on 27 August 2016.

    Special residence requirement

31. The Act includes provisions for a person to satisfy the special residence requirement if at the time the person made the application that person is engaged in work of a kind specified under section 22C(3) and the person is required to regularly travel outside Australia because of that work, and the requirements of section 22B(b), (c), (d), (e), (f) and (g) are met.

32. Therefore, before examining whether HLLL satisfies the requirements set out in section 22B, it is first necessary to decide whether he was engaged in “work of a kind” specified under section 22C(3) because, fulfilling that requirement is necessary before going on to consider whether he satisfies the other relevant parts of section 22B. 

33. Section 22B(1)(a) says:

    (1)  Subject to this section, for the purposes of section 21 a person satisfies the special residence requirement if:

    (a)At the time the person made the application, the person is engaged in work of a kind specified under subsection 22C(3) and the person is required to regularly travel outside Australia because of that work;…

1. IMMI 13/056 sets out, at item 4, that the Minister specified the “kinds of work” in Schedule C for the purposes of section 22B(1)(a) of the Act, as set out earlier.

2. HLLL contended that he is a Scientist employed by an Australian university who has attained a PhD in his field of speciality and is undertaking research and development of benefit to Australia. The Respondent did not contest that HLLL has attained a PhD in Civil Engineering – Construction Engineering and Management.  The Tribunal notes that (at T62) there is translated testamur, certified by the National Accreditation Authority for Translators and Interpreters, that HLLL fulfilled the requirements of his doctorate of philosophy from a university in Tehran in February 2011.

3. The Tribunal also had before it a letter dated 14 December 2016 from The Institution of Engineers Australia confirming that HLLL was admitted to that body in October 2013 and is a current member.  The Institution stated that HLLL is ‘positioned in the occupational category of Professional Engineer’ and is currently a member of the Civil College.

   Is HLLL a Scientist?

4. A question I have to consider is whether to accept the Applicant’s submissions that he should be regarded as a ‘Scientist’ in the terms intended in the Minister’s instrument specifying kinds of work.

5. The word ‘Scientist’ in the instrument is capitalised, but there is no definition of the term elsewhere in IMM 13/056 or in the Act.  Accordingly, following the general rules of statutory interpretation, in construing this term the Tribunal must look at the ordinary and everyday meaning of the word, but must then couple that with the meaning of the word in the context in which it is used and with the purpose of the instrument and section 22B of the Act. 

6. The Macquarie Dictionary (2017 Edition) defines ‘scientist’ as follows:

   scientist noun someone with an expert knowledge of science, especially someone professionally qualified in one of the physical or natural sciences.

   The Macquarie Dictionary defines ‘science’ as:

   science noun 1.

   a.The systematic study of the nature and behaviour of the material and physical universe, based on observation, experiment, and measurement, often leading to the formulation of laws to describe the results of such procedures in general terms.

   b.The knowledge so obtained.

   2.                 a particular branch of this.

   3.                 systemised knowledge in general.

   ..

7. In Re Owoeye and Minister for Immigration and Border Protection [2018] AATA 72, Senior Member Nikolić said, at [31]:

   Both the Applicant and Respondent invited me to make conclusions and inferences arising from dictionary definitions within their submissions. I note in this regard the judgement of Rares J in Kuzmanovski v New South Wales Lotteries Corporation [2010] FCA 876; (2010) 270 ALR 65, where he held at 76 that:

   The meaning of a word used in ordinary speech or writing is a question of fact. Dictionaries provide a useful and often important source or aid from which the answer to that question of fact can be determined. However, it is not legitimate to defer to one particular usage in one dictionary as the only meaning for a word.’

   His Honour went on to say at 77:

   ‘In a passage quoted with approval by Black CJ, Jacobson and Perram JJ in Polo/Lauren Co LLP v Ziliani Holdings Pty Ltd (2008) 173 FCR 266; [2008] FCAFC 194 at [24] Mason P, with whom Stein and Giles JJA agreed, said (House of Peace at [28]):

   [28] A dictionary may offer a reasonably authoritative source for describing the range of meanings of a word, including obsolete meanings. Dictionaries recognise that usage varies from time-to-time and place-to-place. However, they do not speak with one voice, even if published relatively concurrently. They can illustrate usage in context, but can never enter the particular interpretative task confronting a person required to construe a particular document for a particular purpose.  In Provincial Insurance at 560-561, Mahoney JA engaged in a valuable discussion about the use of dictionaries in construing words used in documents and statutes. He observed, and I agree, that dictionaries are not a substitute for the judicial determination of the interpretation and the construction of words used in such instruments: citing Life Insurance Co of Australia Ltd v Phillips [1925] HCA 18 at 78; 31 ALR 206 at 214 per Isaacs J. Mahoney JA also stated that there is no single authoritative dictionary and the Court would improperly restrict itself if it referred to only one dictionary and not another. He went so far as to say that it is “dangerous, in interpreting or construing a document, to confine attention to a single dictionary”: Provincial Insurance at 561.’

   [32] It follows that although dictionaries can assist in determining questions of fact, deference to a particular usage in a single dictionary is unhelpful. In the current matter, it is more important to consider the intent and context of the contested statutory provisions.

8. I respectfully agree with this approach.  It is clear to the Tribunal from the evidence of the Applicant that an element of what he does in his academic work involves the application of mathematics and some of the sciences and, in particular, that the specialised field of study and research in which he is involved, namely assessing the longevity of public infrastructure, logically involves application of physics and chemistry (HLLL gave evidence to the Tribunal about the effect, for example, of rust on the operational life of bridges and tunnels). 

9. The Tribunal had before it a copy of HLLL’s contract of employment with the university for the period 1 November 2013 to 18 March 2014.  He was employed in the School of Civil, Environmental and Chemical Engineering.  That School is under the umbrella of a broader grouping in the university which includes health, engineering and science.  The Tribunal finds it significant that HLLL’s employing university itself separates engineering and science into different schools.

10. At T9 p 71 was a letter from the Head of School at the university dated 3 August 2016 which certified HLLL’s employment at that time and that his papers published in journals are “of the highest quality according to the ERA (Excellence in Research for Australia) and world class rankings”.

11. The Applicant also provided a further letter dated 10 July 2017 signed by the same Head of School which referred to HLLL being “employed as a research scientist in the School of Engineering” at the university.  The letter further said “I can endorse [HLLL’s] capabilities in science areas” and “I believe [HLLL] is [a] very talented scientist.”  However, during the hearing the Tribunal asked the Applicant who wrote this letter, given it was not on the university’s letterhead and the signature block at the foot differed from the earlier letter.  HLLL readily conceded that he wrote the letter and asked his professor to sign it.  As it is clearly written by HLLL himself and simply signed by the Head of School (who it is noted did not use the words ‘scientist’ or ‘science’ once in his August letter), the Tribunal gives it little weight as a third party view in this assessment.

12. Section 15AA of the Interpretation Act states:

    Interpretation best achieving Act’s purpose or object

    In interpreting a provision of an Act, the interpretation that would best achieve the purpose or object of the Act (whether or not that purpose or object is expressly stated in the Act) is to be preferred to each other interpretation.

13. The purpose of IMMI 13/056 is to provide a special pathway to persons who, because of their specific occupations, have trouble satisfying the general residence requirements for citizenship by establishing categories of employment that may nevertheless be found to satisfy the special residence requirements.  The use of the phrase ‘special residence requirements’ in the Act is quite specific.  In this the Parliament was distinguishing between the usual, or general residence requirements, so the framework that should be adopted when construing the meaning of the terms in the instrument should be directed towards special cases.

14. The university where HLLL was employed has a School of Science which undertakes research across the natural and physical sciences, mathematics, biological sciences and computer science.  It is persuasive to me that HLLL has not been employed in this school at any time, but in a separate school of Civil, Environmental and Chemical Engineering.

15. While I understand, and even accept, certain submissions made by the Applicant that he must, and does, engage with the sciences in his academic work, that is not enough for me to be satisfied that he is a ‘scientist’ in the way that word is used in the instrument.  He was manifestly not employed at the university as a scientist, nor working in that school; he was instead employed first as a Lecturer in Civil Engineering and then as a research fellow in the Engineering School.  Had the Minister intended to include engineers in that particular designation of the ‘kind of work’ that would satisfy the special residence requirement, my view is that the instrument would expressly state that.  Relevantly, the instrument does separate out ‘medical specialists’ in another provision, another category of persons who, like HLLL, could mount an argument that they engage in ‘scientific’ work.

16. The Tribunal finds that HLLL is not a ‘Scientist’ in the terms that word is used in the instrument made under the Act.

    If so, was HLLL employed by an Australian university at the time of his application?

17. It is not strictly necessary for the Tribunal to go on to consider this question, but for completeness, I will do so.  During the hearing the question was raised about what was HLLL’s employment status on 27 August 2016, the day of his application.

18. HLLL provided two employment contracts from the university, one for the period 1 November 2013 to 18 March 2014 as a Lecturer in Civil Engineering and a second contract for the period 1 April 2014 to 31 March 2016 as a Research Fellow.  He also provided a casual engagement advice form stamped ‘School of Engineering’ at the university which was signed on 29 August 2017.

19. At the conclusion of the hearing, the Tribunal gave leave to the parties to make further submissions on whether HLLL was employed at the time of his application.  HLLL provided some further material but no definitive evidence that he was employed by his university (or any other Australian university within the scope of the Instrument).  The Tribunal does take into account that it can be the practice of universities to engage academic staff on a somewhat ad hoc basis, but the Applicant did undertake to provide a casual employment contract for the relevant period (i.e. covering the application date), and did not do so.

20. Accordingly, given the absence of proof, the Tribunal is unable to make a positive finding that HLLL was employed by an Australian university on 27 August 2016.

    If so, is the research and development being undertaken by HLLL of benefit to Australia?

21. It is not essential for the Tribunal to go on to consider this question.  The Respondent argued that not all research can, intrinsically, be regarded to be “of benefit to Australia”.  However, the Tribunal noted the 3 August 2016 letter from the Head of School which stated:

    He has successfully contributed to the development of novel time dependent reliability methods for risk based infrastructure asset management which is one of the top priorities of [name of university] and is essential for sustainable development of Australia.  The problems of deteriorating infrastructures of Australia is ever increasing, multifaceted and very challenging which needs intensive research to develop innovative methodologies.

22. The Tribunal also had before it endorsements of HLLL’s professional contribution to infrastructure protection and management outside the university which, while outside the scope of the instrument, illustrate that the work he is doing is of benefit to Australia.  The Tribunal therefore concludes that this work is of benefit to Australia and does not necessarily accept the narrower submissions of the Respondent that this part of the instrument should be interpreted to exclude work that might also have a benefit elsewhere in the world.  On the contrary, the Tribunal believes that IMMI 13/056 is couched precisely to accommodate certain categories of persons who are undertaking work of benefit to Australia and, possibly, broader benefit as well.

    The person is required to regularly travel outside Australia because of that work

23. Although, as I have found, it is strictly not necessary to consider the second limb of section 22B(1)(a) because I have found that HLLL was not engaged in “work of a kind” specified under section 22C(3), for completeness there was no evidence before the Tribunal that HLLL had been “required” to regularly travel outside of Australia because of his work.  The movement records show that he has regularly travelled outside of Australia since being granted permanent residency, but on his own evidence that has exclusively been to his home country and it has been for a mixture of work (lecturing, tutoring and translating academic textbooks) and seeing his family in Iran. 

24. HLLL had a collaboration with Stanford University but said that he did not travel to the United States in connexion with that.  He agreed that the university which employed him in Victoria did not require him to travel for work, nor did they fund his travel.  HLLL travelled outside of Australia for the reasons set out above and to keep in contact with his professional network back in Iran.  This is an important part of section 22B(1) because it is designed to allow special consideration for certain categories of persons who are required to travel in their work (for instance, as the Applicant himself cited, air and ship crews), not for people like HLLL who choose to travel, albeit for understandable academic reasons.

    Does the Applicant satisfy the ‘ordinarily resident in Australia’ requirement?

25. As mentioned above, HLLL was not in Australia on 26 August 2012, the day four years immediately before the day he made his citizenship application.  This is not necessarily fatal to the application.  A document called Citizenship Policy is used by officers of the Department as a manual to guide them when carrying out their duties under the Act.  It states in the Introduction:

    The role of Citizenship Policy is to support the Australian Citizenship Act 2007 (the Act).  Citizenship Policy provides guidance on the interpretation of, and the exercise of powers under, the Act and the Australian Citizenship Regulations (the Regulations).  Policy cannot constrain the exercise of delegated powers under the Act or the Regulations.

26. Extracts from this manual were tendered by the Respondent (T18).  It relevantly states:

    Where a person was outside Australia on the day four years immediately before applying, but had previously been in Australia as the holder of a permanent visa, they may still use the day four years immediately before applying as a start date (for the purposes of being eligible to satisfy the four year lawful requirement), provided that on that day they held a permanent visa.

27. Decision-makers (such as the Tribunal in this case) should generally apply policy such as the Citizenship Policy unless there are cogent reasons not to, such as the policy is unlawful or its application produces an unjust result in the circumstances of a particular case (Brennan J in Re Drake and Minister for Immigration and Ethnic Affairs (No 2) [1979] AATA 179, at [645]).

28. Although HLLL was out of Australia on 26 August 2012, the delegate stated that he was on that day the holder of a permanent visa that was in effect (T2, p 6).  The Tribunal notes that HLLL declared in his application that he was granted a permanent visa on 30 October 2008 and first arrived in Australia on that permanent visa on 26 March 2009.

    Was HLLL ‘ordinarily resident’ in Australia in the terms in section 22B(1)(e) of the Act? 

29. Section 3 sets out the definitions used in the Act and defines ‘ordinarily resident’ as:

    ordinarily resident: a person is taken to be ordinarily resident in a country if and only if:

    (a)He or she has his or home in that country; or

    (b)That country is the country of his or her permanent abode even if he or she is temporarily absent from that country.

    However, the person is taken not to be so resident if he or she resides in that country for a special or temporary purpose only.

30. At T3, HLLL listed his previous residential addresses.  From 31 January 2010 to 17 March 2013 he said he was residing at an address in Tehran.  He told the Tribunal that address is a small apartment which he owns.   HLLL said that this apartment is furnished and that, when he is in Australia, it is locked up and not used by anyone else.

31. From March to September 2013 he lived at an address in Balmain.  HLLL told the Tribunal he went to Sydney to be close to Wollongong, where he hoped to secure an academic position at the university there, and worked at this time for a university in Sydney.  From September 2013 to January 2015 HLLL resided at an address in South Yarra with his then wife, and then with her at an address in Preston from July to September 2015.  He said he left Australia and returned to Iran and his wife decided to discontinue their marriage.  He told the Tribunal he left all the household goods with her at that time.  He briefly lived again in South Yarra in a serviced apartment in January 2016.  He said he stayed with a friend in Reservoir from March to July 2016, and has subsequently moved into a property at Mill Park, a share house where he has a room. 

32. I am not satisfied that HLLL satisfies the requirement in section 22B(1)(e) of being ordinarily resident in Australia in the four years before his citizenship application.  He had no Australian address on the day 26 August 2012 and was, on his evidence, residing at the apartment he owned (and still owns) in Iran at that time, and did not arrive back in Australia until 16 March 2013, that is 29 weeks later, or around 7 months.  His absence on this occasion had commenced at the end of October 2010, more than two years before.  HLLL provided a document to the Tribunal (exhibit A4) which states that he was working as an Assistant Professor at a University in Iran at this time and “actively seeking and applying for very competitive academic positions in Australia”.

33. HLLL then worked at the university in Victoria until the end of January 2015 and from January to July 2015 was back in Tehran collaborating with an academic colleague at a different university there.  He returned to Victoria for a little over two months, from July to late September 2015.  HLLL returned to Iran in September 2015 for three weeks’ holiday and to visit his family.  He returned to Australia for 10 days and then from October 2015 to January 2016 “decided to continue my scientific collaboration” at a university in Iran where he said he had developed a close relationship.  He returned to Australia for 10 days at the end of January 2016, and from 1 February to 17 March 2016 was back in Iran.  He then returned to the university in Victoria for 25 days before going back to Iran for 87 days until the beginning of July 2016.

34. I conclude, taking into account the very frequent and long absences from Australia in Iran, coupled with the fact that at least since about September 2015 HLLL has not maintained a permanent residence in Australia, instead staying with friends, that the Tribunal is not satisfied that the Applicant was ordinarily resident in Australia in the four year period, which as section 22B is to be read conjunctively, he must also satisfy in order to avail himself of the special residence requirement.

    Conclusion

35. HLLL’s application for citizenship cannot succeed, because he was not ordinarily resident in Australia.  He cannot seek relief from the general residence requirements through the special residence requirements available in section 22B because at the time he made the application the Tribunal cannot be satisfied that he was engaged in work of a kind specified under section 22C(3) and was required to regularly travel outside Australia because of that work. 

1. Even if the Tribunal were to conclude that HLLL did satisfy the ingredients set out for the special residence requirements to be met, the decision under review is the decision of the delegate, who did not consider the exercise of this discretion.  Section 53(3) of the Act explicitly prevents the Tribunal from exercising the non-delegable power of the Minister to exercise a discretion in sections 22A(1A) and 22B(1A).  A useful discussion on this particular part of the Act may be found in the reasons of Deputy President Forgie in Re Ravi and Minister for Immigrationand Border Protection [2016] AATA 1022, at [18] to [38].

2. This will be a disappointing outcome for HLLL.  However, he must realise that the purpose of Australian Citizenship is, as the Preamble to the Act sets out, to enable people to become full members of the community of the Commonwealth of Australia.  That is why an applicant must show a commitment to reside here for more than the bare majority of the time.  There are special provisions that may be relevant to particular applications but they hinge on a person being unable because of their specific kind of work to otherwise satisfy the requirements set out in the Act.  They are not intended to allow another pathway to citizenship where an applicant chooses (that is, is not required) to be absent from Australia for long periods of time.  That is why, for the reasons set out above, HLLL’s application cannot succeed.  This is not to reflect on his undisputed academic qualifications and the productive research and practical work that he has been doing.  But the solution is in HLLL’s hands.  He has a permanent resident visa and, on the material before me, would seem otherwise to satisfy the requirements for citizenship.  What he must do is also satisfy the general residence requirements under the Act.

   DECISION

3. The reviewable decision is affirmed.

72.     I certify that the preceding 71 (seventy-one) paragraphs are a true copy of the reasons for the decision herein of Senior Member D. J. Morris

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

Associate

Dated: 29 March 2018

Date of hearing:	17 November 2018
Applicant:	In person
Solicitors for the Applicant:	Mr Jamie Grant
Solicitors for the Respondent:	Sparke Helmore