Kanis and Minister for Immigration and Border Protection (Citizenship)

Kanis and Minister for Immigration and Border Protection (Citizenship) [2018] AATA 3222 (5 September 2018)
Division:GENERAL DIVISION
File Number(s): 2017/3473
Re:Mathias Kanis
APPLICANT

AndMinister for Immigration and Border Protection
RESPONDENT

DECISION
Tribunal:Senior Member Linda Kirk

Date:5 September 2018
Place:Sydney

The decision under review is affirmed.
.........................[sgd].................................
Senior Member Linda Kirk
CATCHWORDS
CITIZENSHIP – application for citizenship by conferral – permanent resident – unable to satisfy general residency requirement or special residency requirement – ministerial discretion sought to consider applicant the de facto partner of an Australian citizen – applicant’s absences did not relate to de facto relationship – special residence requirement – whether Applicant is the member of crew of an aircraft – whether Applicant is required to travel outside Australian because of work – flight simulation instructor – not satisfied – decision affirmed
LEGISLATION
Interpretation Act 1901 (Cth)
Australian Citizenship Act 2007 (Cth)
Australian Citizenship Act 1948 (Cth)
CASES
HLLL and Minister for Immigration and Border Protection (Citizenship) [2018] AATA 771
Kumar and Minister for Immigration and Border Protection [2014] AATA 944
Kumar v Minister for Immigration and Border Protection [2015] FCA 446
Minister for Immigration and Border Protection v Han [2015] FCAFC 79
Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634
Taher v Minister for Immigration and Border Protection [2013] AATA 917
Water Conservation and Irrigation Commission (NSW) v Browning (1947) 74 CLR 492
Yang and Minister for Immigration and Border Protection [2017] AATA 364
SECONDARY MATERIALS
Department or Home Affairs Citizenship Policy (1 June 2016)
Explanatory Memorandum to the Australian Citizenship Bill 2005 (Cth)
Minister for Immigration and Citizenship, Australian Citizenship Act 2007 - Special Residence Requirement (Section 22C), Legislative Instrument IMMI 13/056, 29 May 2013
REASONS FOR DECISION
Senior Member Linda Kirk
5 September 2018
BACKGROUND

Mr Mathias Kanis (‘the Applicant’) was born in 1977 and is a citizen of Germany.
He first arrived in Australia on 13 December 2003 as the holder of an Electronic Travel Authority Visitor Visa, subclass 976. On 15 July 2010 he was granted a subclass 310 Interdependency visa and subsequently a subclass 100 Partner (Migrant) visa on 9 November 2012.[1] These visas were granted on the basis of the Applicant’s relationship with his partner, Mr Pedro Virgil (‘the Applicant’s partner’) which commenced on 6 March 2008.[2]
[1] Tribunal Documents at p.15.
[2] Tribunal Documents at pp.79. 81.
On 9 May 2016 the Applicant lodged an application for Australian citizenship by conferral under s21 of the Australian Citizenship Act 2007 (Cth) (‘the Act’).[3] In his application he sought an exemption under the special residence provisions in s22B of the Act and on 28 April 2017 he made further submissions requesting the exercise of the Ministerial discretion in s22(9) of the Act.
[3] Tribunal Documents at p.180.
Movement records held by the Minister’s Department show that the Applicant was present in Australia for 605 days (and absent for 856 days) in the four years before his citizenship application was made, that is, between 9 May 2012 and 9 May 2016[4] (‘the relevant period’).
[4] Tribunal Documents at pp.166-167.
On 31 May 2017 a delegate of the Minister for Immigration and Border Protection (‘the Minister’) refused the application on the basis that the Applicant did not satisfy the residence requirements under s 21(2)(c) of the Act and could not benefit from the discretion in s22(9) of the Act, nor did he satisfy the special residence requirement in s22B.[5]
[5] Tribunal Documents at pp. 14- 25.
On 14 June 2017 the Applicant lodged an application for review of this decision by this Tribunal.
The matter was heard in Sydney on 28 June 2018. The Applicant attended the hearing by telephone from Germany.
THE LEGISLATIVE FRAMEWORK
Section 21(1) of the Act provides that a person may make an application to the Minister to become an Australian citizen. The Minister must, by writing, approve or refuse to approve the person becoming an Australian citizen.[6] Section 24(1A) of the Act states that the Minister must not approve a person becoming an Australian citizen unless he or she is eligible to become an Australian citizen under one of various specified subsections. For present purposes, the relevant subsection is s 21(2), which sets out the general eligibility criteria.
[6] Australian Citizenship Act 2007 (Cth), s 24(1).
Under paragraph (c) of s 21(2), the Minister must be satisfied that the Applicant satisfies one of a number of specified requirements. In the present case, both the general residence requirement (section 22) and the special residence requirement (section 22B) are relevant.
Section 22(1) provides that, for the purposes of s 21, a person satisfies the general residence requirement 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.
Subsections (1A) and (1B) of s 22 deal with the treatment of overseas absences. Subsection (1A) provides that where the person was absent from Australia for a part of the period of four years immediately before the day the application was made and the total period of absence or absences was not more than 12 months, then, for the purposes of s 22(1)(a), they are taken to have been present in Australia during each period of absence. Subsection (1B) contains a similar provision in respect of absences during the 12 month period referred to in s 22(1)(c), provided the total period of the absence or absences was not more than 90 days.
Subsection 22(9) of the Act affords (subject to certain preconditions being satisfied) a discretion to the Minister (or the Tribunal on review, as in this case) to effectively excuse non-compliance with the general residence requirements by applicants who are spouses or de facto partners of Australian citizens:
Ministerial discretion – spouse, de facto partner or surviving spouse or de facto partner of Australian citizen
(9) If the person is the spouse, de facto partner or surviving spouse or de facto partner of an Australian citizen at the time the person made the application, the Minister may treat a period as one in which the person was present in Australia as a permanent resident if:
(a) the person was a spouse or de facto partner of that Australian citizen during that period; and
(b) the person was not present in Australia during that period; and
(c) the person was a permanent resident during that period; and
(d) the Minister is satisfied that the person had a close and continuing association with Australia during that period.
Section 22B of the Act provides that a person may satisfy the special residence requirement in s 21(2)(c) if their absences from Australia are as a result of their employment in a particular field, which requires them to travel regularly outside Australia.
Section 22B(1)(a) provides:
(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;…
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. This relevantly includes ‘a member of the crew of an aircraft’.[7]
1. The kinds of work are those undertaken as part of their duties in which a person is:
(a) …
(b) a member of the crew of an aircraft; or
(c) …
[7] Minister for Immigration and Citizenship, Australian Citizenship Act 2007 - Special Residence Requirement (Section 22C), Legislative Instrument IMMI 13/056, 29 May 2013.
ISSUES FOR THE TRIBUNAL
It is not in dispute that at the time of making his application, the Applicant did not satisfy the requirements specified in s 21(2)(a) of the Act. He was not present in Australia for four years immediately preceding the day he made his application. The provisions in subsection 22(1A) do not assist him given the total period of his absences was more than 12 months.
Consequently, the Applicant will only satisfy the general residence requirement for Australian citizenship if satisfies one of the exemptions in s 22 of the Act.
Subsection 22(9) contains four preconditions that need to be satisfied before the discretion can be enlivened. It is not in dispute that the Applicant satisfies those listed in paragraphs (b), (c) and (d) of the subsection: he was not present in Australia during those periods; he was a permanent resident during those periods and he had ‘a close and continuing association with Australia’. The only precondition which is contentious is that in paragraph (a), namely whether during those periods of absence, he was a spouse or de facto partner of an Australian citizen.
In relation to s 22B, it is not in dispute that the Applicant worked as ‘a member of crew of an aircraft’ while employed as a pilot which is work of a kind specified under s 22C(3) of the Act. The parties are divided on the question of whether he was ‘required to regularly travel outside Australia because of that work’.
The issues for the Tribunal’s consideration are:
(a)whether the Applicant meets the requirement in s 22(9)(a), that during the periods of his absence he was the de facto partner of an Australian citizen;
(b)if so, whether the discretion under s 22(9) is enlivened; and
(c)
if the discretion is enlivened, whether it should be exercised by the Tribunal in

the Applicant’s favour; or
(d)whether the Applicant meets the special residence requirement in s22B.
CONSIDERATION
Was the Applicant the de facto partner of an Australian citizen during the periods of absence?
Before considering whether the Applicant was the de facto partner of an Australian citizen it is necessary to consider the meaning of this phrase for the purposes of the Act.
Definition of ‘de facto partner’ for the purposes of the Citizenship Act
The Act does not include a definition of ‘de facto partner’. The Acts Interpretation Act 1901 (Cth) (‘Interpretation Act’) provides the following definition of ‘de facto relationship’ in section 2F:
De facto relationships
For the purposes of paragraph 2D(b), a person is in a de facto relationship with another person if the persons:
(a) are not legally married to each other; and
(b) are not related by family (see subsection (6)); and
(c) have a relationship as a couple living together on a genuine domestic basis.
(2) In determining for the purposes of paragraph (1)(c) whether 2 persons have a relationship as a couple, all the circumstances of their relationship are to be taken into account, including any or all of the following circumstances:
(a) the duration of the relationship;
(b) the nature and extent of their common residence;
(c) whether a sexual relationship exists;
(d) the degree of financial dependence or interdependence, and any arrangements for financial support, between them;
(e) the ownership, use and acquisition of their property;
(f) the degree of mutual commitment to a shared life;
(g) the care and support of children;
(h) the reputation and public aspects of the relationship.
(3) No particular finding in relation to any circumstance mentioned in subsection (2) is necessary in determining whether 2 persons have a relationship as a couple for the purposes of paragraph (1)(c).
(4) For the purposes of paragraph (1)(c), the persons are taken to be living together on a genuine domestic basis if the persons are not living together on a genuine domestic basis only because of:
(a) a temporary absence from each other; or
(b) illness or infirmity of either or both of them.
The Citizenship Policy (‘Policy’) provides guidance to decision-makers on the interpretation and exercise of the powers under the Act. The Tribunal is not bound to strictly apply the Policy, as it is not law. As the Tribunal stated in Re Aston and Secretary, Department of Primary Industry (1985) 8 ALD 366 Re (6 November 1985) at [21]:
Policy is not law. A statement of policy is not a prescription of binding criteria.
However, policy should be given due and proper consideration and weight unless there are cogent reasons not to do so: Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634 at 645 per Brennan J.
The Policy sets out the evidence required to be provided by applicants who are seeking the exercise of the residence requirement ministerial discretion under s 22(9). This includes, in circumstances where the Applicant is the de facto partner of an Australian citizen, evidence in relation to eight factors. These are the factors listed in section 2F(2)(a)-(h) of the Interpretation Act.
The submissions on behalf of the Applicant and those of the Minister centred on the factors relevant to determining whether the Applicant and his partner were in a de facto relationship at the relevant time. These factors and the parties’ submissions and witness evidence in relation to each are summarised as follows:
Duration and nature of the relationship
Nature and extent of their common residence
The Applicant is a pilot and was employed with Air Berlin from July 2006 to October 2014.[8] He commenced employment as a First Officer with Tigerair on 7 October 2014.[9] He took leave without pay from Tigerair to return to work for Air Berlin as a First Officer on 1 October 2016. He was on unpaid leave until 1 July 2017 and has now tendered his resignation.
[8] Tribunal Documents p. 211.
[9] Tribunal Documents pp. 212-219.
The Applicant’s partner is an international status photographer whose work requires him frequently to travel interstate and overseas, including a regular assignment as the official photographer for a television series filmed in the Caribbean.
Applicant’s evidence is that he and his partner commenced a de facto relationship in 2008, which continued throughout the relevant period 9 May 2012 to 9 May 2016 (‘the relevant period’). They lived together at an address in Redfern until March 2012.
From late 2012 to mid 2013 the Applicant lived in Berlin when he was employed as a pilot with Air Berlin. The Applicant’s evidence is that his partner stayed with him in Berlin during the following periods:
·20 November 2012 to 29 April 2013
·7 May 2013 to 13 August 2013
When the Applicant returned to Sydney in January 2014 he stayed in the spare room of a friend in Kirribilli. From October to December 2014 the Applicant lived in Melbourne when he was undertaking flight training for Virgin. From 1 January 2015 to 12 July 2016 the Applicant had a tenancy at a property in Kirribilli. He then returned to live in his flat in Berlin where he continues to live.
The Applicant and his partner were together in Australia for extended periods in 2015 and 2016. The following periods are those during which the Applicant was in Australia and which overlap with the dates his partner was in Australia:
·3 October 2014 to 18 June 2015
·19 August 2015 to 1 September 2015
·10 September 2015 to 12 July 2016
The Applicant’s partner was in Australia during the following periods:
·11 February 2015 to 26 August 2015;
·19 November 2015 to 13 June 2016.
During the periods when the couple were both in Sydney – February to August 2015 (six months) and November 2015 to June 2016 (seven months) – they did not have a shared residence. The Applicant’s partner stayed with his mother in Greenacre in early 2015 and from November 2015 he was renovating her house. The Applicant’s partner’s mother was involved in car accident and he stayed with her to look after her during her recovery.
The Applicant’s evidence is that during these periods the couple would stay together one or two nights per week at his rental property in Kirribilli. The Applicant did not stay with his partner at his mother’s house in Greenacre because the house is small and many cats also lived there. The Applicant’s partner kept his photographic equipment at his mother’s house and therefore for work reasons it was most convenient for him to stay at Greenacre most nights of the week.
When the couple were apart due to their work commitments, they would stay in touch via Facebook messenger, Skype and What’s App. Their relationship was monogamous and they provided each other with emotional support and took an interest in one another’s lives and careers. The geographical locations and time differences that separated them were challenging but they ‘made it work’.
Financial arrangements
The couple were financially independent due to their respective successful careers. They did not pool their resources nor did they have a joint bank account. When they were together in Australia or overseas they often would pay for each other’s dinners and entertainment and the Applicant would pay for flights for his partner.
Mutual commitment to a shared life
Reputation and public aspects of the relationship
A number of witnesses provided statements of support and gave evidence to the Tribunal. The Applicant’s mother (Ms Margaret Grund), who resides in Berga, Germany, confirmed that she has known her son and his partner to be a committed couple since July 2009 and she met his partner when they were both living in Berlin. They ‘have been dedicated to stay in touch and have undergone lots of effort to still see each other’.
Mr Anthony Whitlock confirmed he had known the Applicant since 2004 and first met his partner in 2010. He observed them to be in a very committed relationship and he would often socialise with them when they were both living in Sydney, including at their homes in Redfern and Kirribilli. Mr Darren Burzynski confirmed he has known the Applicant and his partner to be a committed couple since January 2013. He has stayed with the couple during his visits to Europe, including at the Applicant’s house in Berlin and on joint holidays with the couple. He most recently saw the couple together at the Applicant’s 40^th birthday party in Berlin in July 2017. The witnesses all confirmed that the Applicant and his partner were a close and devoted couple during the relevant period and from his observations they were in a genuine, loving and committed relationship.
In addition to the oral evidence of the Applicant and the witnesses, the Tribunal was provided with a large number of photos of the couple taken between 2011 and 2017, screenshots of What’s App and Facebook messenger messages between the couple during the period 10 March 2015 to 12 December 2016, and joint invitations to two weddings.
Is the discretion enlivened?
On the basis of the evidence before it, the Tribunal is satisfied that the Applicant and his partner were in a de facto relationship at the time he made his citizenship application. The Tribunal makes this finding having regard to the eight factors listed in the Policy to be considered in determining the existence of a de facto relationship.
In relation to the duration and nature of their relationship, the Tribunal finds that the couple were in a genuine and committed relationship. The periods of time they spent apart was a necessary consequence of their work commitments and careers, both of which by their very nature required them to travel overseas on a regular basis and spend long periods away from home. The Tribunal finds that the fact that the couple did not share a common residence does not detract from the nature of their relationship. When the couple were both in Berlin they lived together for a period of nine months at the Applicant’s home. The circumstances of the couple when they were both living in Sydney were such that the Applicant’s partner, for professional and personal reasons, chose to reside with his mother and the Applicant rented a property where he and the Applicant would stay together when they were able to do so.

In relation to the financial arrangements of the couple, they had no joint assets or other property and did not pool resources or have a joint bank account. The Tribunal finds however that this does not detract from the nature of the couple’s relationship. They are both young, well-paid professionals and are not reliant or dependent on the other for financial support. They are not at the stage of life where they want to settle down in one place and, for example, buy a house, or enter into a long-term lease, and therefore it is not unexpected that they do not own joint property or other assets.
In relation to their mutual commitment to a shared life together and the reputation and public aspects of their relationship, the evidence of the Applicant and the independent evidence of witnesses who are family members or friends of the couple is that the Applicant and his partner were in a genuine, committed and long-term relationship to the exclusion of all others.
For the above reasons, the Tribunal is satisfied that the Applicant was at the time of application the de facto partner of his Australian citizen partner for the purposes of s 22(9) of the Act.
Should the discretion be exercised in the Applicant’s favour?
Having found that the requirements in s 22(9) of the Act are satisfied and the discretion enlivened, the Tribunal must consider whether the discretion should be exercised in the Applicant’s favour.
In Kumar v Minister for Immigration and Border Protection, Senior Member McCabe (as he then was) stated that this ministerial discretion is ‘… in reality an exceptional power, a power to relieve someone of the consequences of failing to comply with the general rule.’[10] On appeal to the Federal Court, Justice Edmonds in Kumar v Minister for Immigration and Border Protection found that the discretion reposed in the Minister by s 22(9) is ‘unconfined’ and the Act ‘does not set out criteria that govern the exercise of the discretion’.[11] He agreed with the Tribunal that, ‘having regard to the purpose of s 22(9), to be discerned from its text, and contextually from the text of the other provisions of s 22’, it ‘offers what amounts to an alternative way of satisfying the general residence requirement in s 21’.[12] The use of the word ‘may’ allows the Minister to have regard to any matters, either in favour or against treating a period as one in which the person was in Australia as a permanent resident provided these matters are not ‘definitely extraneous to any objects the legislature could have had in view.’[13]
[10] Kumar and Minister for Immigration and Border Protection [2014] AATA 944 at [18].
[11] Kumar v Minister for Immigration and Border Protection [2015] FCA 446 at [20] citing Dixon J in Water Conservation and Irrigation Commission (NSW) v Browning (1947) 74 CLR 492, 505.
[12] Kumar v Minister for Immigration and Border Protection [2015] FCA 446 at [22].
[13] Kumar v Minister for Immigration and Border Protection [2015] FCA 446 at [23] citing Dixon J in Water Conservation and Irrigation Commission (NSW) v Browning (1947) 74 CLR 492, 505. See also Yang and Minister for Immigration and Border Protection [2017] AATA 364 at [76].
In Taher v Minister for Immigration and Border Protection, Senior Member Fice stated:
It is difficult to ascertain the objects or purpose of s. 22(9) simply by reading that section alone. All that can be said from reading the section is that there may be circumstances where a spouse or de facto partner of an Australian citizen has not met the general residence requirement for a reason associated with their relationship with the Australian citizen, but not simply because they have that relationship.[14]
[14] Taher v Minister for Immigration and Border Protection [2013] AATA 917 at [26] emphasis added.
Senior Member Fice went on to briefly examine the provisions in the Australian Citizenship Act 1948 (Cth) which s 22(9) replaced.[15] The relevant provision was set out in s 13(9) which conferred on the Minister a broad discretion to grant citizenship to a person who is a permanent resident and a spouse of an Australian citizen, regardless of the duration, if any, of the person’s residency in Australia:
(9)           Subject to subsection (11), the Minister may, in the Minister’s discretion, upon application in accordance with the approved form, grant a certificate of Australian citizenship to a person:
(a)          …
(b)          …
(c)          who is a permanent resident and is the spouse, widow or widower of an Australian citizen; or…
[15] Taher v Minister for Immigration and Border Protection [2013] AATA 917 at [29] See also consideration of the legislative history of this provision in Minister for Immigration and Border Protection v Han [2015] FCAFC 79 at [49].
The Explanatory Memorandum to the Australian Citizenship Bill 2005, explained the purpose of the proposed new subsection 22(9):
This new subsection amends the Act by requiring that spouses of Australian citizens meet the same criteria as other adult applicants for citizenship. This reflects current policy, and the modern expectation that adult applicants should qualify in their own right rather than relying on a spousal relationship with another person.
However, it is recognised that in some circumstances the spouse of an Australian citizen may have difficulty meeting the residence requirements, for example if they are accompanying their Australian citizen spouse overseas (for example, spouses of Australians working overseas for international organisations). As a result this subsection introduces a new discretion to waive part or all of the residence requirements for the spouse of an Australian citizen who can demonstrate a close and continuing association with Australia.[16]
[16] Explanatory Memorandum Australian Citizenship Bill 2005 (Cth) 29.
The clear intention of the inclusion of the Ministerial discretion in s 22(9) in the Act was to allow a spouse of an Australian citizen who is unable to meet the general residency requirements in the Act to be relieved of doing so if they can demonstrate a ‘close and continuing relationship’ with Australia. However the satisfaction of the ‘close and continuing’ requirement is not of itself a sufficient basis for the exercise of the discretion. In Taher Senior Member Fice summarised this as follows:
If I am correct in my understanding of the object or purpose of s. 22(9) of the Citizenship Act, then, simply demonstrating a close and continuing association with Australia is not a valid basis for the exercise of the discretion. It is merely a precondition which must be met to enliven the discretionary provision. One then needs to look at the circumstances and reasons why the applicant is unable to meet the general residence requirements. If those reasons arise out of the spousal relationship with the Australian citizen, there may be a compelling reason to exercise the discretion. However, if the reasons why an applicant for citizenship is outside of Australia for lengthy periods of time are not related to the spousal relationship but rather a matter of personal choice, such as the ability to earn substantially more income in another country, there appears to be no reason to exercise the spousal discretion.[17]
[17] Taher v Minister for Immigration and Border Protection [2013] AATA 917 at [36] emphasis added.
The Tribunal notes that this understanding of the object and purpose of s 22(9) is reflected in the requirement in the Policy that applicants seeking exercise of the discretion provide ‘evidence that they were overseas with their Australian citizen spouse or de facto partner …’[18]
[18] Citizenship Policy (1 June 2016) p. 96.
In the Applicant’s case, there is no dispute that he maintained a close and continuing relationship with Australia during the relevant period and the Tribunal has found that he was the de facto partner of an Australian citizen.
However the Tribunal finds that the discretion, while unconfined, must only be exercised in circumstances consistent with the objects and purposes of s 22(9). The legislative history of the discretion indicates it was not intended to relieve a person from satisfaction of the general residency requirements merely on the basis of their spousal relationship with an Australian citizen. There must be a reason or reasons, associated with the spousal relationship, for the person’s absences from Australia that provide a justification for the exercise of the discretion.
In the Applicant’s circumstances, there is no evidence to support a finding that the reason for the Applicant’s absences from Australia was related to his de facto relationship with his partner. The Applicant’s absences overseas were for the purpose of undertaking paid work in his occupation as a pilot. These absences were not associated with his spousal relationship with his partner. Accordingly, the Tribunal finds that this is not a circumstance in which the discretion in s 22(9) should be exercised.
Does the Applicant meet the special residence requirement in section 22B?
There is no dispute that the Applicant worked as ‘a member of crew of an aircraft’ whilst employed as a pilot, which is work of a kind specified under s 22C(3) of the Act. The point of difference between the parties is whether the Applicant’s work as a pilot required him to travel regularly outside Australia as required by s 22B(1)(a).
The evidence before the Tribunal is that the Applicant was absent from Australia during the relevant period as follows:
·9 May 2012 to 27 January 2013
·10 March 2013 to 24 January 2014
·11 March 2014 to 3 October 2014
·18 June 2015 to 19 August 2015
·1 September 2015 to 10 September 2015
During the relevant period, the Applicant was employed with Air Berlin from 9 May 2012 to 1 October 2014 and with Tigerair from 7 October 2014 to 9 May 2016. Tigerair commenced flying internationally in August 2015 however the Applicant did not and was not asked to undertake any international flights for the company. He states that he had to be ‘ready’ for an overseas posting at any time.[19] In June 2016 the Applicant took extended leave of absence from Tigerair to return home to Germany to care for his mother. He has now resigned from Tigerair, but is actively looking for work as a pilot with a number of companies including Qantas, Virgin and Cobham Aviation Services.
[19] Tribunal Documents at p. 142.
The evidence before the Tribunal is that the Applicant was also employed by a company called Cockpit4u where he worked as a contracted flight instructor in Berlin ‘partly or wholly’ during the following periods:
·2012 – January, February, April, May, June, July, August, September, October, November
·2013 – January, March, April, May, June, July, September, October, November
·2014 – March, May, June, July, August, September
·2015 – July, August
·2016 – July, August, September[20]
[20] Tribunal Documents at p.143.
The Applicant told the Tribunal that between 2012 and 2014 he was unable to find a job as a pilot in Australia and therefore had to return home to work in Europe so as to ensure that he could maintain his EU licence. This licence has to be renewed every year and therefore he needed to return to Europe annually for this licence renewal. It is an essential qualification in Europe and is highly regarded worldwide, including in Australia. When he joined Tigerair they were impressed by his international flight experience even though at that stage they were not flying international routes and the Applicant was not required to do so at any stage during his employment with Tigerair.
The Applicant explained to the Tribunal the work he did as a flight instructor with Cockpit4u. He demonstrates to students via a simulator the skills required for them to fly an aircraft. It is essential ‘hands on’ training for trainee pilots. A separate qualification is required to undertake this work in addition to a pilot’s licence. He has undertaken this work as a contractor with Cockpit4u since 2008.
The Applicant argued that this flight instructor role is as ‘a member of the crew of an aircraft’ and therefore the work he undertook for Cockpit4u during 2012-2016 should be considered for the special residency exemption.
The Respondent argued there are three elements to s 22B that the Applicant must satisfy namely :
a)He is ‘a member of the crew of an aircraft’; and
b)He is required to travel outside Australia;
c)Because of his work as ‘a member of the crew of an aircraft’.
The Tribunal accepts that the Applicant’s employment in Germany at Air Berlin was as ‘a member of the crew of an aircraft’. It does not accept that his work as a flight instructor for trainee pilots with Cockpit4u is encompassed by the phrase ‘a member of the crew of an aircraft’ as this role has a teaching or instructing focus and does not involve actual travel (flight) from one location to another with other members of the crew of an aircraft.
In HLLL and Minister for Immigration and Border Protection (Citizenship) [2018] AATA 771 (29 March 2018), Senior Member Morris observed in relation to the legislative instrument that lists the occupations specified under s 22C(3):
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.[21]
[21] HLLL and Minister for Immigration and Border Protection (Citizenship) [2018] AATA 771 at [46].
In determining the legislative intention behind s 22B, particularly the phrase ‘and the person is required to regularly travel outside Australia because of that work’ the Tribunal has had regard to section 15AA of the Acts Interpretation Act 1901 (Cth) which 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.
In HLLL, Senior Member Morris observed:
… 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. [22]
[22] HLLL and Minister for Immigration and Border Protection (Citizenship) [2018] AATA 771 at [70] emphasis added.
Against this background, the Tribunal finds that the phrase ‘and the person is required to regularly travel outside Australia because of that work’ should be read to apply to circumstances where an individual regularly travels from Australia to another country and this travel is a specific duty of their employment. Travel associated with obtaining and maintaining skills and licences associated with the person’s occupation (as opposed to their employment), or extended periods of employment in the person’s occupation in another country, are not consistent with the objects and purposes of the special residence requirement. This interpretation is consistent with the wording of IMMI 13/056 which refers to the ‘kinds of work are those undertaken as part of their duties.’
On this basis, the Applicant does not meet the special residence requirement as he was not required to travel outside of Australia as a specific duty or requirement of employment. His absences from Australia to undertake employment in Germany with Air Berlin and with Cockpit4u allowed him to earn an income when he was not otherwise employed as a pilot in Australia, but this travel was not a required duty of his employment.
CONCLUSION
For the reasons outlined above, although the discretion in s 22(9) is enlivened in the Applicant’s circumstances, because his absences from Australia were not associated with his spousal relationship with his partner this is not a circumstance in which the discretion in s 22(9) should be exercised.
Furthermore, for the reasons above, the Applicant does not satisfy the special residence requirement in s 22B as his absences from Australia were not required travel for his work as ‘a member of a crew of an aircraft.’
As the holder of a permanent resident visa the Applicant will be eligible to re-apply for citizenship again, and if at this time he satisfies the general or special residence requirements under the Act and the other criteria for the grant of citizenship, he will be welcomed as a full member of the Australian community.
DECISION
The decision under review is affirmed.

I certify that the preceding 73(seventy–three) paragraphs are a true copy of the reasons for the decision herein of Senior Member Linda Kirk

...........................[sgd].......................................
Associate
Dated: 5 September 2018

Date(s) of hearing: 28 June 2018

Solicitors for the Applicant: Mr P Hense

Solicitors for the Respondent: Mr T Hillyard

[2018] AATA 3222

5 September 2018

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Natural Justice

Standing

Date(s) of hearing:	28 June 2018
Solicitors for the Applicant:	Mr P Hense
Solicitors for the Respondent:	Mr T Hillyard