Lee and Minister for Home Affairs (Citizenship) - [2019] AATA 3365

Lee and Minister for Home Affairs (Citizenship) [2019] AATA 3365 (29 August 2019)
Division:GENERAL DIVISION
File Number: 2018/3984
Re:Poh Kait Lee
APPLICANT

AndMinister for Home Affairs
RESPONDENT

DECISION
Tribunal:Senior Member Linda Kirk
Date:29 August 2019
Place:Sydney

The decision under review is affirmed.
.............................[sgd].............................
Senior Member Linda Kirk
CATCHWORDS
CITIZENSHIP – application for citizenship by conferral – whether Applicant satisfies the special residence requirement under section 22B of the Citizenship Act 2007 (Cth) – whether Applicant engaged in the work of ‘a member of the crew of an aircraft’ – statutory construction – legislative purpose and context of special resident requirement – decision under review affirmed
LEGISLATION
Acts Interpretation Act 1901 (Cth) ss 15AA, 15AB
Australian Citizenship Act 2007 (Cth) ss 21, 22, 22A, 22B, 22C, 24
Civil Aviation Act 1988 (Cth)
Civil Aviation Safety Regulations 1998 (Cth)
Legislation Act 2003 (Cth) s 13
CASES
HLLL and Minister for Immigration and Border Protection [2018] AATA 771
Re Owoeye and Minister for Immigration and Border Protection [2018] AATA 72
SECONDARY MATERIALS
Australian Citizenship Amendment (Citizenship Test Review and Other Measures) Bill 2009, Second Reading, Tuesday 15 September 2009, Senate Hansard
Macquarie Dictionary, Seventh Edition (2017)
Minister for Immigration and Citizenship, Australian Citizenship Act 2007 - Special Residence Requirement (Section 22C), Legislative Instrument IMMI 13/056, 29 May 2013
Second Reading Speech to the Australian Citizenship Amendment (Citizenship Test Review and Other Measures) Bill 2009
The Hon. Michael Kirby, ‘Statutory Interpretation: The Meaning of Meaning’ (2011) 35(1) Melbourne University Law Review 113
REASONS FOR DECISION
Senior Member Linda Kirk
29 August 2019
INTRODUCTION AND BACKGROUND

Mr Poh Kait Lee (‘the Applicant’), a citizen of Malaysia, first entered Australia on 1 April 2000 as the holder of a visitor (subclass 976) visa. The Applicant is a permanent resident, and was most recently granted a subclass 186 (permanent) visa on 3 August 2015.
On 21 October 2017, the Applicant applied for Australian citizenship by conferral (‘citizenship application’)[1] under s 21 of the Australian Citizenship Act 2007 (Cth) (‘the Act’). Relevantly, in his citizenship application, the Applicant stated that he sought an exemption from the general residence requirement on the basis of being “engaged in work of a particular kind requiring regular travel outside of Australia”.[2]
[1] T-documents T4 at p. 43.
[2] T-documents T4 at p. 47.
On 17 February 2018, a delegate of the Minister for Home Affairs (‘the Respondent’) refused the citizenship application on the basis that the Applicant did not meet the general residence requirement under s 22(1) of the Act, as he was present in Australia for:
a)less than 4 years immediately before the day he made the application (per s 22(1)(a)); and
b)less than 12 months as a permanent resident immediately before the day he made the application (per s 22(1)(c)).
The delegate did not accept that the Applicant satisfied the special residence requirement under s 22B of the Act, in particular on the basis that the Applicant was not “engaged in a kind of work specified under subsection 22C(3)”, in particular, as a “member of the crew of an aircraft or as a Chief Executive Officer/Executive Manager of an S&P/ASX200 listed company”.[3]
[3] T-documents T2 at p. 24.
On 17 July 2018, the Applicant lodged an application for review of this decision by this Tribunal.
The matter was heard in Sydney on 5 June 2019. The Applicant attended the hearing in person and was self-represented.
The following documents were before the Tribunal:
·Applicant’s amended statement, undated (Exhibit A1);
·Applicant’s amended statement dated 1 November 2018 (Exhibit A2);
·Applicant’s statement dated 14 September 2018 (Exhibit A3);
·T documents (T1- T7 pages 1- 167) (Exhibit R1).
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.[4] 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.
[4] 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.
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:
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; and
b)The following apply:
(i)The person was engaged in that kind of work for a total of at least 2 years during the period of 4 years immediately before the day the person made the application;
(ii)for the whole or part of that 4 year period when the person was engaged in that kind of work, the person regularly travelled outside Australia because of that work…;
Subsection 22C(3) states that the Minister may, by legislative instrument, specify kinds of work for the purposes of s 22B(1)(a) of the Act. The relevant instrument is IMMI 13/056 (‘the Instrument’).¹
The Instrument 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’.[5]
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)    …
d)    a Chief Executive Officer of an S&P/ASX All Australian 200 listed company; or
e)    an Executive Manager of an S&P/ASX All Australian 200 listed company
[5] Minister for Immigration and Citizenship, Australian Citizenship Act 2007 - Special Residence Requirement (Section 22C), Legislative Instrument IMMI 13/056, 29 May 2013.
ISSUES FOR DETERMINATION
It is not in dispute that at the time of making his application, the Applicant did not satisfy the general residence requirement specified in s 21(1) of the Act.
The issue for determination is whether the Applicant satisfies the special residence requirement under s 22B of the Act. This requires that all of the following are satisfied:
a)At the date of application, the Applicant was engaged in work of a kind specified under s 22C(3) of the Act – first limb of s 22B(1)(a);
b)Because of that work, he was required to regularly travel outside Australia – second limb of s 22B(1)(a);
c)The Applicant was engaged in that kind of work for a total of at least 2 years during the 4 years immediately before lodging the application – first limb of s 22B(1)(b); and
d)For the whole or part of the 4 year period when the Applicant was engaged in that kind of work, he regularly travelled outside Australia because of that work – second limb of s 22B(1)(b).
EVIDENCE BEFORE THE TRIBUNAL
Applicant’s employment and role with Air Canada
The Applicant has been employed by Air Canada as Director, International Sales, Asia Pacific region since April 2016. Prior to joining Air Canada, he was employed by Malaysia Airlines in a similar executive sales role. His primary responsibility as Director, International Sales with Air Canada is to increase international sales to and from Australia on Air Canada flights. He also works to build relationships between the airline and stakeholders in both countries, including airports, tourism bodies, travel agencies and hoteliers, with the intention of building traffic from North America to Australia. The airline also works with government authorities, including the Department of Immigration, the Department of Foreign Affairs and Trade, and the Civil Aviation Authority in Australia.
As part of his role, the Applicant regularly travels to Canada, China, Japan, Korea, New Zealand and Taiwan. He travels to Canada for meetings at the airline’s headquarters and to other destinations to meet with colleagues and stakeholders. This travel benefits the Australian economy because these are markets that connect Australia with North America and the Asia Pacific region and this encourages more tourists to come to Australia.
Applicant’s duties and tasks on board Air Canada flights
During cross-examination, the Applicant was asked about the following concession he made in his undated statement:
However, I’m neither a pilot nor flight attendants (sic) which can meet the special residence requirement clause.[6]
[6] Exhibit A1.
He agreed that he is not a pilot, nor a flight attendant nor cabin crew.
The Applicant told the Tribunal that when on board Air Canada flights flying between destinations, he engages with the crew to make sure that they are observing standard operating procedures, and interacts with passengers to ensure the airline is continuing to improve its services on board and to receive their feedback. He considers that whenever he travels he has duties as a member of the crew of the aircraft.
The Applicant was questioned about his statement dated 14 September 2018. He explained that as part of his role and responsibilities when on board the aircraft he observes and ensures that safety standards are complied with at all times.[7] He was asked whether he undertakes the safety briefing to the passengers and he said he does not. He agreed that he does not operate the aircraft nor does he test its safety features. He is trained in CPR and how to use the emergency chute, but he is not certified to perform these functions.
[7] Exhibit A3 at para [4].
The Applicant was asked about his statement that he supervises flight attendants administratively and provides feedback.[8] He said that he advises flight attendants when they are not complying with standard operating procedure, for example, in their personal grooming or in their interaction with passengers. He was also asked about his statement that he monitors the health and morale of the crew on board flights.[9] He said that he is permitted to go into the cockpit and speak to the pilots when they are on autopilot and to ensure that they are observing standard operating procedures and are in good health.
[8] Exhibit A3 at para [6].
[9] Exhibit A3 at para [13].
He was questioned further about his interaction with passengers on board the flight. He said that he introduces himself and chats to them to ensure they are enjoying their experience and encourages them to complete the feedback form. He also talks to them about future business opportunities. When there is a very, very important passenger (‘VVIP’) on board, he makes sure that he meets and speaks with them.
The Applicant explained that it is part of the company’s policy that whenever executives travel they have a list of items they need to accomplish. For example, they need to record meal wastages, that is when the flight is over-catered, and also how much water is uplifted into the aircraft as this affects the weight of the plane and has an impact on fuel costs.
The Applicant was asked about his statement that he has ‘the authority and empowerment to resolve some of the service breakages’.[10] He said that as a travelling executive he is able to compensate a passenger, for example, by giving them a future discount for travel or a cash voucher, in circumstances in which their experience on board the flight has not been up to standard. He explained that this is part of his management role.
[10] Exhibit A3 at para [8].
He was questioned about his statement that he is involved in ‘handling and resolving complaints from crew or passengers on board, if it requires executive decisions’.[11] He explained that he has the authority to upgrade or provide a refund to a passenger in circumstances in which they have made a complaint about the service on board.
[11] Exhibit A3 at para [7].
The Applicant was asked about his authority on board when a passenger is unruly, misbehaving or a safety or security threat. He said that a determination must be made as to whether to offload the person and this is made by the pilot. However, if the pilot knows he is on board then the pilot would consult him in making this decision.
The Applicant explained to the Tribunal that he is identifiable as a staff member of Air Canada by his corporate pin. He does not wear a uniform when on board a flight. He introduces himself to the crew when he boards the flight, and will update them on current company strategy.
He was asked about the type of ID card he carries when he travels. He explained that he carries the ID issued to airline staff to go in and out of the airport.[12] This is only issued following a very stringent and comprehensive background check. He also has an APEC card which allows him to use the express lane in countries where a visa is required.
CONTENTIONS
[12] Exhibit A1.
Applicant
The Applicant has very unique work in that he is not a pilot nor cabin crew, but he performs tasks to ensure that standard operating procedures are complied with when he is on board a flight.
The definition of ‘a member of the crew of an aircraft’ for the purposes of the Act is not the same as that for aviation safety and licensing under the Civil Aviation Act 1988 (Cth) and the Civil Aviation Safety Regulations 1998 (Cth) (‘Aviation Safety Regulations’). The Act recognises that some people like him have a close relationship to Australia, but their work requires extensive travel, yet produces huge benefits to the country. The civil aviation legislation is strictly for the purpose of licensing and training. The citizenship legislation should protect people like him and a broader interpretation of ‘a member of the crew of an aircraft’ should be adopted and not limited specifically to pilots or cabin crew.
The Applicant is actually a part of the crew operating the flight when he is on board. He has crew duty, like engaging with the crew, making sure standard operating procedures are observed, engaging with customers, ensuring that services are continually improved, and receiving feedback. This is critical information to allow the airline to improve its business and its services and sustain its operations in Australia. Whereas Air Canada and Malaysian Airlines are not ASX registered companies in Australia, they are very substantial in the Australian market.
Respondent
The Tribunal should not be satisfied that the Applicant’s work for both Air Canada and Malaysian Airlines was work as ‘a member of the crew of an aircraft’. The Applicant does not man the aircraft when he is on board. He is not engaged in the operation of the aircraft: he does not fly it, nor does he undertake the safety briefing as do the cabin crew. His presence is not required on the flight in order for the aircraft to operate safely. His presence on board the flight is a ‘bonus’ in that he can address complaints, greet VIP passengers, give feedback to the cabin crew and check on their welfare. If the Applicant were not on board the flight it would not affect the operation of the aircraft. The tasks he undertakes on board are incidental to his role as Director, International Sales. But it is not work that is of a nature that would fall within the meaning of ‘a member of the crew of an aircraft’.
The tasks performed by the Applicant on board a flight do not meet the definition of ‘cabin crew member’ and ‘flight crew member’ in the Aviation Safety Regulations. There is no evidence to suggest that the Applicant is involved in work as a member of the aircrew as contemplated by Part 61 of the Aviation Safety Regulations.
The Applicant does not travel outside Australia in order to engage in the work of ‘a member of the crew of an aircraft’. The reason he travels is to meet with colleagues at Air Canada offices in Canada and in other locations, engage with stakeholders, enter commercial agreements and build commercial relationships, all with the intention of increasing the airline’s sales and revenue, sustaining and increasing flight routes and growing its market share. These are the reasons for his travel, not for the purposes of work as ‘a member of the crew of an aircraft’. He boards the aircraft for passage to other countries and whilst on board he may undertake some incidental tasks. He does not travel because he is required to be on board the aircraft; he travels to get to his destination.
Section 22B provides an exhaustive list of the kinds of work that fulfil that criteria, and there is no discretion to have regard to other matters such as the Applicant’s contribution to the Australian economy or culture.
CONSIDERATION AND REASONS
Is the Applicant engaged in work of a kind specified under s 22C(3) of the Act?
The primary question for determination is whether the Applicant was during the relevant period engaged in work of a kind specified under s 22C(3). The Instrument relevantly specifies in Schedule C that the kinds of work that satisfy s 22B(1)(a) of the Act include (b) a member of the crew of an aircraft; and (d) a Chief Executive Officer of an S&P/ASX All Australian 200 listed company; or (e) an Executive Manager of an S&P/ASX All Australian 200 listed company.
The Schedule provides an exhaustive list of the kinds of work specified for the purposes of s 22B(1)(a) of the Act, and there is no discretion to have regard to other factors, such as the Applicant’s economic or other contributions to Australia.
Neither Air Canada nor Malaysia Airlines are listed on the Australian Stock Exchange (ASX) and they are not ASX200 listed companies for the purposes of sub-paragraphs (1)(d) and (e) of the Instrument. Accordingly, the Applicant cannot meet the special residence requirement in s 22B on the basis that he is engaged in work of the kind specified in these sub-paragraphs.
Is the Applicant engaged in the work of ‘a member of the crew of an aircraft’?
What is the meaning of ‘a member of the crew of an aircraft’?

The phrase ‘a member of the crew of an aircraft’ is not defined in the Act or in the Instrument. In accordance with the general rules of statutory interpretation, it is appropriate for the Tribunal in construing this phrase to consider the ordinary and everyday meaning of the phrase, but also to have regard to the intent and context of the provision.
The Macquarie Dictionary defines ‘crew’ as:
Noun
3. The persons operating an aircraft in flight.
In the context of aircraft and crew licensing and safety regulation, the Aviation Safety Regulations provide the following definitions in Part 1:
Cabin crew member, in relation to an aircraft, means a crew member, other than a flight crew member, who performs, in the interests of the safety of the aircraft’s passengers, duties assigned by the operator or the pilot in command of the aircraft.
Flight crew member means a crew member who is a pilot or flight engineer assigned to carry out duties essential to the operation of an aircraft during flight time.
Approach to statutory construction
Former Justice of the High Court of Australia, the Hon. Michael Kirby, extra-judicially outlined the High Court’s elaboration of the principles relevant to statutory construction.[13] These include:
·where the applicable law is expressed in legislation the correct starting point for analysis is the text of the legislation and not judicial statements of the common law or even judicial elaborations of the statute;[14]
·the overall objective of statutory construction is to give effect to the purpose of Parliament as expressed in the text of the statutory provisions;[15] and
·in deriving meaning from the text, so as to fulfil the purpose of Parliament, it is a mistake to consider statutory words in isolation. The proper approach demands the derivation of the meaning of words from the legislative context in which those words appear. Specifically, it requires the interpreter to examine at the very least the sentence, often the paragraph, and preferably the immediately surrounding provisions (if not a wider review of the entire statutory context) to identify the meaning of the words in the context in which they are used.[16]
[13] The Hon. Michael Kirby, ‘Statutory Interpretation: The Meaning of Meaning’ (2011) 35(1) Melbourne University Law Review 113, 116.
[14] See, eg, Potter v Minahan (1908) 7 CLR 277, 304 (O’Connor J); Bropho v Western Australia (1990) 171 CLR 1, 17–18 (Mason CJ, Deane, Dawson, Toohey, Gaudron and McHugh JJ); Coco v The Queen (1994) 179 CLR 427, 437 (Mason CJ, Brennan, Gaudron and McHugh JJ); R v Secretary of State for the Home Department; Ex parte Simms [2000] 2 AC 115, 130 (Lord Steyn).
[15] See, eg, ProjectBlueSkyIncvAustralianBroadcastingAuthority (1998) 194 CLR 355, 381[69](McHugh, Gummow, Kirby and Hayne JJ). Cf Justice Michael Kirby, ‘Towards a Grand Theory of Interpretation: The Case of Statutes and Contracts’ (2003) 24 Statute Law Review 95, 99.
[16] [54] Collector of Customs v Agfa-Gevaert Ltd (1996) 186 CLR 389, 396–7 (Brennan CJ, Dawson, Toohey, Gaudron and McHugh JJ), quoting R v Brown [1996] 1 AC 543, 561 (Lord Hoffmann); Minister for Immigration and Multicultural Affairs v Khawar (2002) 210 CLR 1, 36 [109] (Kirby J); SGH Ltd v Federal Commissioner of Taxation (2002) 210 CLR 51, 91[88] (Kirby J).
In Re Owoeye and Minister for Immigration and Border Protection [2018] AATA 72 (‘Owoeye’), Senior Member Nikolić said, at [30]-[32]:
[30] 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.’
[31] 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.
This approach was recently endorsed by Senior Member Morris in HLLL and Minister for Immigration and Border Protection (Citizenship) [2018] AATA 771 (‘HLLL’) at [41].
Having regard to the above authorities, the Tribunal finds that it should not be limited by the dictionary definition of ‘crew’, or indeed the definitions contained in the Aviation Safety Regulations, in determining the meaning of the phrase ‘a member of the crew of an aircraft’. It is necessary for the Tribunal to consider the purpose and context of the special residence requirement, which requires consideration of the statutory text and reference to relevant extrinsic materials.
Legislative purpose and context
Section 13(1)(a) of the Legislation Act 2003 (Cth) provides that, unless the contrary intention appears, the Acts Interpretation Act 1901 (Cth) (‘Acts Interpretation Act’) applies to any Instrument as if it were an Act and as if each provision of the Instrument were a section of the Act.
Section 15AA of the Acts Interpretation Act provides:
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 accordance with section 15AB of the Acts Interpretation Act, the Tribunal’s determination of the purpose of the special residence requirement is assisted by consideration of relevant extrinsic material.
In Owoeye, in considering the proper construction of the special residence provisions, the Tribunal had regard to the second reading speech of the then Minister for Immigration and Citizenship, the Hon. Senator Chris Evans, in relation to the introduction of the Australian Citizenship Amendment (Citizenship Test Review and Other Measures) Bill 2009.[17] The Minister stated:
The amendments seek to introduce a special resident requirement for a small group of people who did not have a pathway to citizenship due to work related travel requirements. While such people remain in those occupations, they will never be able to meet the current residence requirement for Australian citizenship. … This is an issue where people basically cannot, as a result of their occupation and being out of the country for long periods, get access to citizenship. They are Australian permanent residents—that is, people who have made their lives here. As we know, we live in a global economy now and people work in quite unusual arrangements.
…
… professionals such as international airline pilots and offshore oil rig workers often do not meet the residency requirements for Australian citizenship because they travel extensively outside Australia as part of their employment … Many people in this category have partners who are Australian citizens and children who are Australian citizens and attend Australian schools and it is simply because of their professional travel commitments that they have not become Australian citizens. Their partner and their kids may be Australian citizens, but they are prevented from qualifying. This effectively excludes a cohort of permanent residents who are 100 per cent committed to Australia. We do not believe that the general residency requirement as applied to this group is fair. We think it is an artificial barrier that ought to be fixed.
… Specialist professionals such as oil rig workers and airline pilots will need to: have been lawfully resident in Australia for the four years immediately before applying for Australian citizenship, with at least 16 months physically in Australia; travel extensively in the course of their work; and have their citizenship application supported by their current employer. One person in this category I was approached by was an Emirates pilot. He was unable to qualify because of the nature of his shifts.
(emphasis added)
[17] Australian Citizenship Amendment (Citizenship Test Review and Other Measures) Bill 2009, Second Reading, Tuesday 15 September 2009, Senate Hansard page 6540.
In Owoeye, the Tribunal noted the ‘limiting effect of the provision’ as reflected in the Minister’s speech, and concluded at [34]:
The purpose of the special residence requirement is to enable a pathway to citizenship for a relatively small group of people undertaking specific kinds of work, who are otherwise unable to meet the general residence requirement.[18]
[18] Cited with approval in Vidal-Fernandez and Minister for Home Affairs (Citizenship) (22 November 2018) [2018] AATA 4355 at [22].
In HLLL, Senior Member Morris observed in relation to the Instrument:
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.[19]
(emphasis added)
[19] HLLL and Minister for Immigration and Border Protection (Citizenship) [2018] AATA 771 at [46].
The evidence before the Tribunal is that the Applicant is employed by Air Canada as Director, International Sales, Asia Pacific. His occupation is that of a sales executive and his primary duties are those typical of a person engaged in this type of employment. His role with the airline is to increase Air Canada’s sales within the region, maintain and increase its flight routes and grow its market share. This requires him to travel extensively from Australia to Asia and to Canada to meet with colleagues and stakeholders. When on board Air Canada flights en route to a place where he will meet with colleagues or stakeholders, the Applicant is engaged in tasks related to his role as a sales executive, including checking that passengers are receiving good standards of service, and interacting with VIP and business class customers, to ensure their ongoing business and to increase sales. Incidental to his role as a sales executive, the Applicant engages with the cabin crew to update them on the airline’s business and strategy, and speaks with the flight crew when necessary about customer service related issues.
The Applicant concedes that he is not a pilot or member of the flight or cabin crew. He contends that he has cabin crew duties while on board flights, and therefore he satisfies s 22B(1)(a) as he is engaged in the kind of work specified in the Schedule C Instrument, (b) ‘a member of the crew of an aircraft’.
Having regard to the Minister’s second reading speech and the interpretations of the special residence provisions adopted by the Tribunal in Owoeye and HLLL, the Tribunal finds that the special residence provisions are intended to provide a pathway to citizenship for a limited number of people who, because of their specific occupation or category of employment, are required to be absent from Australia for extended periods such that they are unable to meet the general residence requirement. The second reading speech of the Minister indicates that the intention of Parliament was that it is the occupation of the person, or the category of employment to which they belong, that determines whether they can benefit from the special residence provisions. The Instrument restricts these to a very limited number of categories of employment being those whose members it has been determined are disadvantaged by the general residence requirement.
The Applicant’s occupation is that of a sales executive and, as Director, International Sales, he is responsible for increasing flights and sales revenue for Air Canada in the Asia Pacific region. He regularly flies from one destination to another so that he can perform his duties as a sales executive for the airline, namely meeting with colleagues and stakeholders in the Asia Pacific region and Canada. His presence on board numerous Air Canada flights for the purpose of passage from one destination to another allows the Applicant to communicate with passengers and crew to obtain and convey feedback and other information relevant to his role as Director, International Sales. The tasks the Applicant undertakes while on board flights are related to his position as the executive responsible for increasing international sales for the airline in the Asia Pacific region. Whereas many of these tasks are customer-focussed and service-related, and therefore have similarities with some of the duties performed by the cabin crew, the Applicant’s occupation or category of employment is sales executive not a flight or cabin crew member. A person whose occupation is a member of the flight or cabin crew of an aircraft is engaged in the operation of the aircraft while it is in flight to ensure its safe arrival at its destination.
The Tribunal finds that the Applicant’s role with Air Canada as Director, International Sales, Asia Pacific, and his previous executive sales role with Malaysian Airlines, do not fall within the meaning of “a member of the crew of an aircraft”, for the purposes of paragraph 1(b) of Schedule C.
The Tribunal accepts that the Applicant’s employment, like that of many other permanent residents, requires him to travel overseas regularly, and this makes it difficult for him and others to meet the general residence requirement for Australian citizenship. However, the list of occupations or categories of employment specified in the Instrument is restricted such that only a very small number of individuals may benefit from the special residence exemption. The Tribunal has no discretion to expand this list to allow a wider group of individuals to so benefit.
The Tribunal finds that the Applicant was not at the relevant time “engaged in work of a kind specified under s.22C(3)” of the Act, and therefore he does not satisfy the first limb of s 22B(1)(a) of the Act.
To meet the special residence requirement the Applicant must meet both limbs of s 22B(1)(a) and the criteria in s 22(1)(b). As the Applicant does not satisfy the first limb of s 22B(1)(a) he cannot meet the special residence requirement under s 22B.
CONCLUSION
For the reasons stated above, the Applicant does not satisfy the special residence requirement in s 22B as during his absences from Australia in the relevant period he was not engaged in work as ‘a member of a crew of an aircraft.’
As the holder of a permanent resident visa the Applicant is eligible to re-apply for citizenship at a future time, and if he then 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 65 (sixty-five) paragraphs are a true copy of the reasons for the decision herein of Senior Member Linda Kirk

...........................[sgd]..........................
Associate
Dated: 29 August 2019

Date(s) of hearing: 5 June 2019

Date final submissions received: 25 June 2019

Applicant: In person

Solicitors for the Respondent: Ms K Dunlop, Sparke Helmore Lawyers

Date(s) of hearing:	5 June 2019
Date final submissions received:	25 June 2019
Applicant:	In person
Solicitors for the Respondent:	Ms K Dunlop, Sparke Helmore Lawyers