Oldfield and Minister for Immigration and Border Protection (Citizenship)
[2017] AATA 1619
•4 October 2017
Oldfield and Minister for Immigration and Border Protection (Citizenship) [2017] AATA 1619 (4 October 2017)
Division:General Division
File Number(s): 2017/3206
Re:Christopher Oldfield
APPLICANT
AndMinister for Immigration and Border Protection
RESPONDENT
DECISION
Tribunal:Deputy President S A Forgie
Date:4 October 2017
Place:Melbourne
The Tribunal decides to:
1. set aside the decision of a delegate of the respondent dated 30 June 2017 to refuse the applicant’s citizenship application of 2 March 2017; and
2. substitute a decision that:
(1)for the purposes of s 22(1)(c) of the Australian Citizenship Act 2007, the 12 month period before the applicant lodged his application for Australian citizenship by conferral on 2 March 2017 be treated as a period during which he was present in Australia as a permanent resident; and
(2)the applicant satisfies the general residence requirement as provided for in s 21(2)(c) of the Australian Citizenship Act 2007.
.......[sgd]............................................................
Deputy President S A Forgie
Catchwords
CITIZENSHIP – applicant arrived in Australia to play soccer professionally – limited number of Visa Players - general residence requirement – applicant not permanent resident 12 months immediately preceding application – Ministerial discretion - whether significant hardship or disadvantage – decision set aside
Legislation
Acts Interpretation Act 1901 s 13
Australian Citizenship Act 2007 Preamble; ss 21, 22, 22A, 22B, 22C, 24
Australian Citizenship Act 2007 – Special Residence Requirement (Section 22C)
Football Federation Australia National Registration Regulations cl 5.2
Hyundai A-League & Foxtel National Youth League Player Contract Regulations 2016/17
Cases
Alexandra Private Geriatric Hospital Pty Ltd v Blewett (1984) 2 FCR 368; 56 ALR 265
Drake v Minister for Immigration and Ethnic Affairs (1979) 24 ALR 577; 2 ALD 60
Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40; (1986) 162 CLR 24; 66 ALR 299
Re Dainty and Minister for Immigration and Ethnic Affairs [1987] AATA 7
Re Drake and Minister for Immigration and Ethnic Affairs (No.2) (1979) 2 ALD 634
Secondary Materials
Australian Citizenship Legislation Amendment (Strengthening the Requirements for Australian Citizenship and Other Measures) Bill 2017
Citizenship Policy
REASONS FOR DECISION
Deputy President SA Forgie
Since he was a young lad in the United Kingdom, Mr Oldfield has trained to be a professional soccer player and, in particular, to be a goal keeper. He trained with the Liverpool Football Club (Liverpool FC) and continued to play with them until he was playing at the Reserve level. When he was 18½ years of age, his contract was not renewed. Mr Oldfield was spotted by an Australian sports agent and encouraged to continue his career in Australia. He moved to Australia in 2012 and has played semi-professional football with, in the main, the Hume City Football Club (Hume City FC). His skills are widely recognised in Australia’s eastern States.
Mr Oldfield initially held a Working Holiday (Subclass 417) (Temporary) visa on 4 February 2012 and entered Australia a few days later on 8 February 2012. On 14 November 2016, Mr Oldfield was granted a Partner (Subclass 801) (Permanent) visa. Although he had not been present in Australia as a permanent resident for the period of 12 months immediately before he made his application, Mr Oldfield applied on 2 March 2017 to the Minister for Immigration and Border Protection (Minister) for Australian citizenship under the Australian Citizenship Act 2007 (AC Act) under s 21. That meant that he was unable to satisfy the general residence requirement under s 22. As he could not satisfy the special residence requirement under ss 22A or 22B either, Mr Oldfield could not satisfy the residence requirements of s 21(2)(c).
Mr Oldfield asked the Minister to treat the eight or so months before 14 November 2016 as a period during which he had been in Australia as a permanent resident meaning that he would be treated as having met the general residence requirement of s 22(1)(c). He submitted that he would suffer significant hardship or disadvantage if the period were not treated as a period during which he was present in Australia as a permanent resident. The Minister declined Mr Oldfield’s request but I have decided that the discretion should be exercised in his favour. In outline, Mr Oldfield will be at a significant disadvantage if he is unable to pursue the only work for which he is trained and qualified i.e. as a professional footballer. He is unable to pursue it without Australian citizenship because professional clubs, being those playing in the A-League, will not offer a Visa Position to a goal keeper even though they recognise Mr Oldfield’s high level skills as a goal keeper and his dedication to the game of soccer and to young Australians who play it.
BACKGROUND
Evidence was given by both Mr Oldfield and his player agent, Mr Richard Rudzki from The Onside Agency Pty Ltd. The evidence that they gave was not challenged. On the basis of their evidence and of the documentary material, to which I will refer, I make the findings set out in the following paragraphs.
Mr Oldfield was born in the United Kingdom in 1991 and holds British citizenship. Since his very early years, his life has been focused on playing soccer. At eight or nine years of age, Mr Oldfield was selected to join the Liverpool Football Club Academy (LFC Academy). From that point, his whole focus was upon become a professional soccer player. He progressed through each age group at the Academy until he was 16 years of age. At that stage, the LFC Academy offered him a place on its scholarship programme for the following two years. As a participant in the scholarship programme, Mr Oldfield focused on training and playing soccer for five days each week with a small amount of schooling on the side. At the completion of those two years, the LFC Academy discarded 95% of the participants but the Liverpool Football Club (Liverpool FC) offered the remaining participants professional scholarships in the form of an eighteen month contract with the club. Mr Oldfield was offered a professional scholarship and played with the LFC Reserves. As a Reserve player, he practised and played against the senior side. All that came to an end when his contract was not renewed at the end of the eighteen months. At the age of 18½ years, Mr Oldfield was left to find a path to carry on with the only skilled occupation he knew.
In 2011 and 2012, Mr Rudzki was instrumental in opening up an opportunity for Mr Oldfield with Hume City FC in Australia. Hume City FC was then a Victorian Premier League (VPL) club. That is to say, it played at a State level and a level below that of the Hyundai A-League (A-League), which is a national competition. Mr Oldfield was granted a Working Holiday (Subclass 417) (Temporary) visa on 4 February 2012 and entered Australia a few days later on 8 February 2012. He played semi-professional football with Hume City FC for the next two years. In the meantime, he met the woman who was to become his wife. They now have twin sons aged eighteen months. On 14 November 2016, Mr Oldfield was granted a Partner (Subclass 801) (Permanent) visa.
On 2 March 2017, Mr Oldfield applied for conferral of Australian citizenship under s 21(2) of the AC Act. He followed this with a request that the Minister exercise his discretion under s 22(6) to provide an “exemption from the requirement of being an Australian permanent resident for 12 months” on the basis that he would suffer significant hardship or disadvantage if citizenship were not conferred.
A delegate of the Minister refused Mr Oldfield’s application on 30 June 2017. The delegate found that Mr Oldfield did not satisfy the residence requirement in s 22(1)(c) and declined to exercise the discretion under s 22(6).
AUSTRALIAN CITIZENSHIP ACT 2007
Division 2 of Part 2 of the AC Act provides for the acquisition of Australian citizenship by application. Section 21(1) provides that a person may make an application to the Minister to become an Australian citizen. Section 24(1) provides that, if a person makes an application under s 21, the Minister must, by writing, approve or refuse to approve the person’s becoming an Australian citizen. The Minister must not approve the person’s becoming an Australian citizen unless that person is eligible under ss 21(2), (3), (4), (5), (6), (7) or (8).[1] Except in the case of eligibility under s 21(8), which effectively applies to a person born in Australia but who would otherwise be a stateless person, the Minister’s decision to approve the person’s becoming an Australian citizen is a discretionary decision. That follows from s 24(2) when it provides:
“The Minister may refuse to approve the person becoming an Australian citizen despite being eligible to become an Australian citizen under subsection 21(2), (3), (4), (5), (6) or (7).”
[1] AC Act; s 24(1A)
General eligibility for Australian citizenship is the subject of s 21(2). A person is eligible to become an Australian citizen if the Minister is satisfied of each of the criteria set out in that provision. Among those criteria is the criterion in s 21(2)(c) requiring the Minister to be satisfied that the person:
“satisfies the general residence requirement (see section 22) or the special residence requirement (see section 22A or 22B), or satisfies the defence service requirement (see section 23), at the time the person made the application”.
The general residence requirement
Section 22(1) provides:
“Subject to this section, for the purposes of section 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.”
The circumstances in which the criteria specified in s 22(1) may, or may not, be met are dealt with in ss 22(1A) to (11). Only that set out in s 22(6) may apply to Mr Oldfield’s circumstances. It provides:
“For the purposes of paragraph (1)(c), 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 present in Australia during that period (except as a permanent resident or an unlawful non-citizen); and
(b)the Minister is satisfied that the person will suffer significant hardship or disadvantage if that period were not treated as one during which the person was present in Australia as a permanent resident.”
The special residence requirement
There is no basis put forward for Mr Oldfield’s meeting the special residence requirements in ss 22A or 22B but, for the sake of completeness, I will outline their requirements. Section 22B is concerned with persons engaged in particular kinds of work requiring regular travel outside Australia. Section 22A is concerned with persons engaged in activities that are of benefit to Australia. Seven criteria must be met in order to satisfy s 22A(1). One of those criteria is that the applicant is seeking to engage in an activity specified under subsection 22C(1).[2] By a legislative instrument dated 29 May 2013, the then Minister for Immigration and Citizenship specified, among others, the following activities as those that would be of benefit to Australia within the meaning of s 22C(1):
[2] AC Act; s 22A(1)(a)(i)
“Participation in an Australian team in the following competitions:
(a)the Olympic Winter Games, including qualifying events for the Games;
(b)the Paralympic Winter Games, including qualifying events for the Games;
(c)the Olympic Summer Games, including qualifying events for the Games;
(d)the Paralympic Summer Games, including qualifying events for the Games;
(e)the Davis Cup Competition, including qualifying events for the Competition;
(f)the Fed Cup Competition, including qualifying events for the Games; and
(g)any men’s or women’s International Cricket Match, being any:
(i)International Test Match;
(ii)International One Day Match;
(iii)Twenty20 International Match;
(iv)Match played as part of an International Cricket Council (ICC) Event, or
(v)Other matches organised or sanctioned by the ICC from time to time to which the ICC deems it appropriate that the ICC Regulations should apply.”
International competitions, such as the FIFA World Cup, the Rugby World Cup and the Hockey World Cup, in which Australia also competes, have not been specified. The Explanatory Statement to the legislative instrument does not give any explanation why some international competitions are included and others not. The explanation cannot lie in the competitions relating to a range of sports for, while that is true of the Olympic Games in their various forms, it is not true of the Davis Cup Competition and the Fed Cup Competition, which are solely focused on tennis.
THE MINISTER’S DISCRETION
The parameters
The Preamble[3] to the AC Act sets the tenor of the provisions that follow:
“The Parliament recognises that Australian citizenship represents full and formal membership of the community of the Commonwealth of Australia, and Australian citizenship is a common bond, involving reciprocal rights and obligations, uniting all Australians, while representing their diversity.
The Parliament recognises that persons conferred Australian citizenship enjoy these rights and undertake to accept these obligations:
(a) by pledging loyalty to Australia and its people; and
(b) by sharing their democratic beliefs; and
(c) by respecting their rights and liberties; and
(d) by upholding and obeying the laws of Australia.”
[3] The Preamble is part of the AC Act: Acts Interpretation Act 1901; s 13(2)(b).
Rights are conferred on the conferral of Australian citizenship but conferral remains a privilege. That this is so is apparent from the fact that the Minister is not obliged to grant Australian citizenship even though a person meets the relevant criteria specified in the AC Act. Instead, s 24(2) expressly states that the Minister “may refuse” to approve a person’s becoming an Australian citizen despite that person’s eligibility under, in this case, s 21(2) (emphasis added). That means that the Minister’s decision is discretionary but s 24(2) itself does not place any boundaries around the circumstances in which the Minister may make that decision but there are boundaries nonetheless. Those boundaries are found in the AC Act under which the decision is to be made. They are identified by reference to the subject matter of the enactment under which the decision is made as well as from its object and underlying policy.[4]
[4] Alexandra Private GeriatricHospital Pty Ltd v Blewett (1984) 2 FCR 368; 56 ALR 265 at 375; 272 per Woodward J and see also Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40; (1986) 162 CLR 24; 66 ALR 299; Gibbs CJ, Mason, Brennan, Deane and Dawson JJ at 39-40; 308-309 per Mason J with whom Gibbs CJ and Dawson J agreed
The Citizenship Policy
The Minister has issued a document known as the “Australian Citizenship Instructions” (ACIs). Before 1 June 2016, the ACIs were intended to provide guidance on the interpretation and administration of the Act and of the regulations made under it. That guidance has been replaced by the Citizenship Policy, which came into operation on 1 June 2016. From that date, the ACIs detail only the citizenship operational instructions.
The Citizenship Policy sets out a number of general propositions relevant in determining whether a person would suffer significant hardship or disadvantage under, among other provisions, s 22(6). Omitting references to detriment, it begins with the following general statements:
“In making an assessment of whether a person would suffer significant hardship … , the words have their usual dictionary meaning. The Macquarie Dictionary Fifth Edition makes the following definitions:
§ significant – important; of consequence
§hardship – a condition that bears hard upon one; severe toil, trial oppression, or need
§disadvantage – absence or deprivation of advantage; any unfavourable circumstance or condition
§economic – relating to the production, distribution, and use of income and wealth.
Personal needs and personal wants
There is a difference between personal needs and personal wants in respect of whether a person’s circumstances constitute ‘significant hardship or disadvantage’.
Personal needs
Personal needs relate to situations which would give rise to significant hardship or disadvantage if a person could not meet that need. For example, if a person could not find any employment, and was unable to adequately financially support themselves or their family.
Personal wants
Personal wants are aspirations and generally do not constitute hardship (that is, the right to vote, election to Parliament, eligibility for HECS-HELP, representing Australia internationally in academics or sport).
…
For conferral
People would normally be required to demonstrate some or all of the following circumstances:
§inability to gain employment on the grounds that the employment is restricted to Australian citizens, and that comparable or alternative employment is not reasonably available
§difficulty of international travel because the person cannot obtain a passport from their country of nationality/citizenship, or are unable to use a passport issued by that country for safety or similar reasons or cannot obtain an alternative travel document
§academic (for example, research, academic scholarship) or other (sporting, etc.) potential is being limited or restricted, because the opportunities to reach that potential is available only to an Australian citizen, to the extent that it causes significant hardship.
Applicants would need to demonstrate that not having citizenship is the only or major cause for the significant hardship or disadvantage. Each application will need to be assessed on its merits with reference to the evidence provided and all the circumstances of the case to determine whether the person’s lack of Australian citizenship is the only or major cause of the significant hardship or disadvantage.
Evidence is required that a person’s lack of Australian citizenship is the cause of the:
§ significant hardship
or
§ disadvantage …
For example, a letter from a potential employer, scholarship, sporting body stating that the person’s citizenship status is the only reason they have not been selected, plus a statement in writing from the applicant, with appropriate supporting documentation, evidencing the significant hardship or disadvantage this has caused.
…’[5]
[5] T documents; T14115-116
The role of the Citizenship Policy
The guidelines set out in the Citizenship Policy set out the way in which the Minister interprets the AC Act and the considerations that should be taken into account in the exercise of any discretion conferred on him. As the Introduction to the Citizenship Policy recognises, policy cannot constrain the exercise of delegated powers under the Act or regulations made under it. In so far as it relates to the interpretation of statutory and regulatory provisions, the Tribunal is bound to apply the law as it is has been passed by Parliament or made under the AC Act. The law lies in the statutory text rather than in the policy.[6] The exercise of discretionary powers under the AC Act and regulations made under it is a different matter. It follows that regard can only be had to the Citizenship Policy if, and to the extent that, they are consistent with the Act.
[6] Drake v Minister for Immigration and Ethnic Affairs (1979) 2 ALD 60 at 69-70 per Bowen CJ and Deane J
In Re Drake and Minister for Immigration and Ethnic Affairs (No. 2)[7] (Drake (No 2), Brennan J, President, said that the decision-maker:
“… is equally free, in point of law, to adopt such a policy in order to guide him in the exercise of the statutory discretion, provided the policy is consistent with the statute.”[8]
This is consistent with the earlier judgments of the Full Court of the Federal Court in Drake v Minister for Immigration and Ethnic Affairs[9] and Smithers J.[10] Brennan J explained in Drake (No 2) the reason for adopting a policy in relation to decision-making:
“… It can serve to focus attention on the purpose which the exercise of the discretion is calculated to achieve, and thereby to assist the Minister and others to see more clearly, in each case, the desirability of exercising the power in one way or another. Decision-making is facilitated by the guidance given by an adopted policy, and the integrity of decision-making in particular cases is the better assured if decisions can be tested against such a policy. By diminishing the importance of individual predilection, an adopted policy can diminish the inconsistencies which might otherwise appear in a series of decisions, and enhance the sense of satisfaction with the fairness and continuity of the administrative process.”[11]
[7] (1979) 2 ALD 634
[8] (1979) 2 ALD 634 at 640
[9] (1979) 24 ALR 577; 2 ALD 60 at 590; 70 per Bowen CJ and Deane J
[10] (1979) 24 ALR 577; 2 ALD 60 at 602; 80
[11] (1979) 2 ALD 634 at 640
While acknowledging the importance of policy, Smithers J had said in Drake v Minister for Immigration and Ethnic Affairs:
“ In the performance of the Tribunal’s function it is essential that a policy adopted by an administrator should be under review to the same extent as his evaluation of relevant matters and his general process of reasoning, not for the purpose of deciding whether it was reasonable for the administrator to make the decision he did, but for the purpose of deciding whether, by the objective standard of good government it was the right decision to make.”[12]
[12] (1979) 2 ALD 60; 24 ALR 577 at 80; 602
The views of Smithers J were consistent with those of Bowen CJ and Deane J and developed by Brennan J in Re Drake (No. 2):
“ Of course, a policy must be consistent with the statute. It must allow the Minister to take into account the relevant circumstances, it must not require him to take into account irrelevant circumstances, and it must not serve a purpose foreign to the purpose for which the discretionary power was created. A policy which contravenes these criteria would be inconsistent with the statute (see Murphyores Incorporated Ltd v The Commonwealth (1976) 136 CLR 1; Drake’s case, supra, at 589, and the cases there cited). …
That is not to deny the lawfulness of adopting an appropriate policy which guides but does not control the making of decisions, a policy which is informative of the standards and values which the Minister usually applies. There is a distinction between an unlawful policy which creates a fetter purporting to limit the range of discretion conferred by a statute, and a lawful policy which leaves the range of discretion intact while guiding the exercise of the power. (see British Oxygen Co
v Board of Trade [1971] AC 610 at 625 and 631). Lord Denning referred to the distinction in Sagnata Investments Ltd v Norwich Corporation [1971] 2 QB 614 at 626, where he said:‘I take it to be perfectly clear now that an administrative body, including a licensing body, which may have to consider numerous applications of a similar kind, is entitled to lay down a general policy which it proposes to follow in coming to its individual decisions, provided always that it is a reasonable policy which it is fair and just to apply. Once laid down, the administrative body is entitled to apply the policy in the individual cases which come before it. The only qualification is that the administrative body must not apply the policy so rigidly as to reject an applicant without hearing what he has to say. It must not “shut its ears to an application”: see [1971] AC 610, 625 per Lord Reid. The applicant is entitled to put forward reasons urging that the policy should be changed, or saying that in any case it should not be applied to him. But, so long as the administrative body is ready to hear him and consider what he has to say, it is entitled to apply its general policy to him as to others.’”[13]
[13] (1979) 2 ALD 634 at 640-641
The role of policy in the exercise of the Minister’s discretion was considered by Davies J as President of the Tribunal in Re Dainty and Minister for Immigration and Ethnic Affairs[14] (Dainty). He did so in the context of whether the Minister should exercise his discretion under the then s 13(4)(b)(iv) of the Australian Citizenship Act 1948 permitting the Minister to treat periods of temporary residence as permanent residence if an application would suffer significant hardship or disadvantage if he were not to do so. A delegate had refused Mr Dainty’s application because he did not fit the guidelines established by the Minister for the exercise of his discretion.
[14] [1987] AATA 7
Davies J found that none of the circumstances set out in the guidelines applied to Mr Dainty’s situation but that, nevertheless, he would suffer significant hardship or disadvantage were the discretion not exercised. The President noted that it was apparent from the face of the guidelines that they would not be appropriate in all circumstances. It spoke, for example, of periods of entry into Australia under temporary entry permits as if all such entries had the quality or characteristics of temporary entries only. In Mr Dainty’s case, his entries did not have that quality for he had been continuously resident in Australia for at least the previous seven years.
As for significant hardship and disadvantage, Davies J said:
“… If significant hardship or disadvantage is established, that is a matter that ought to be considered whether or not it would be a disadvantage or hardship of the type set out in paragraphs (a), (b) or (c) of clause 2 of the guideline. Those paragraphs are irrelevant to Mr Dainty’s circumstances. He would suffer significant business hardship or disadvantage if a certificate of citizenship were not granted. His relevant circumstances ought to be considered and given weight.”[15]
[15] [1987] AATA 7 at [16]
Without Australian citizenship, Mr Dainty would lose the opportunity to acquire AM radio station 3XY as citizenship was essential under the Broadcasting and Television Act 1942. There would be financial consequences resulting from breach of warranties contained in the agreement between Paul Dainty Properties Pty Ltd and Station 3XY Pty Ltd. The loss of opportunity, financial consequences of the breach of warranties and the loss to Mr Dainty’s reputation arising from his inability to complete the agreement were all matters taken into account by Davies J in finding that he would suffer significant hardship or disadvantage were he not granted Australian citizenship. Mr Dainty’s group of companies had owned and operated the Comedy Theatre in Melbourne since 1978 and regularly brought top entertainers and shows, including sports events, to Australia as well as supporting Australian artists. His wife was an Australian citizen as were their children and they had made a home in Sydney where the children were booked into Sydney schools.
Davies J concluded:
“ In the circumstances, I am of the view that the Ministerial guidelines are not appropriate to Mr Dainty’s circumstances. Mr Dainty relies upon factors which are relevant and should be taken into account. A consideration of these ought not to be denied because they fall outside guidelines which have been prepared for the purpose of consideration of the ordinary and different type of case. …
In the present case, it appears to me that the circumstances under consideration fall outside the provisions of the guidelines and ought to be considered on their own merits. I agree with the comment made in a memorandum to the Minister that Mr Dainty’s case should not be regarded as a general precedent but may be looked upon as an individual case. In these circumstances, no reason remains why the general guidelines, which are not appropriate to it, should be applied to it.
I should add that a decision favourable to Mr Dainty would not, in my view, mean that his application would be advanced unfairly to others. I do not see this as a case of queue jumping by Mr Dainty. He has had lengthy and sufficient ties with Australia. No reason other than the guidelines has been put forward as to why he should not now be granted a certificate of citizenship. There is no reason for delay other than the application of the guidelines, which as I have said, I think ought not to be applied in his case.”[16]
[16] [1987] AATA 7 at [30]-[32]
THE EVIDENCE
Mr Rudzki said that Mr Oldfield was a youngster with a lot of potential when he came to Australia. Since coming to Australia, he has distinguished himself while playing in the A-League. Three times in the past five years, Mr Oldfield has been voted goal keeper of the year while playing in the VPL. That is to say, he has been voted the best goal keeper outside the A-League in those three years. While he was playing with Hume City FC, it met A-League team, Melbourne Victory, in a Football Federation of Australia (FFA) Cup semi-final in October 2015.[17] Hume City FC lost its match to the Melbourne Victory but a report in the Hume Leader dated 10 November 2015 praised Mr Oldfield’s efforts:
[17] Article, 15 December 2015: T documents; T9 at 69
“ Oldfield put in an impressive shift against Victory, keeping the A-League champions at bay for much of the FFA Cup contest at AAMI Park.
Goals to Besart Berisha, Kosta Barbarouses and Jason Geria sealed Victory’s progression to the final, but it took two strikes in the final six minutes to confirm the result.
Oldfield denied Jesse Makarounas in the 15th minute and drew praise for a sharp double-save which denied the Victory midfielder and Barbarouses during the second half.
…
Hume City coach Lou Acevski lauded Oldfield’s performance against Victory, adding he was ready for the A-League.
‘He kept us in the game with some great saves and he’s one that I believe can step up immediately and make a difference in the A-League,’ Acevski said.”[18]
[18] T documents; T9 at 70
Mr Rudzki said that, had Mr Oldfield been an Australian citizen, he would have been asked to join the A League. The A League has existed for the past 13 years and ten teams take part in it. In giving his evidence, Mr Oldfield said that he would be able to play at the standard required of an A-League goal keeper as he has played at that standard in the United Kingdom but that he would need a little time to return to it. The usual place for a goal keeper to start is as the second goal keeper. Just before Christmas 2016, Mr Rudzki said, Mr Oldfield received a call from the Sydney Football Club (Sydney FC), which is an A-League club. Sydney FC had a major problem with its second goal keeper and asked whether Mr Oldfield could fill the position. Mr Oldfield did so and filled the position for seven weeks. Mr Rudzki said that Sydney FC thought Mr Oldfield good enough to be playing with them. In addition to the approach by Sydney FC, Mr Oldfield said that he has been approached by almost every A-League club to train with them. The winner of the A-League each year qualifies to play in the Asian Champions League.
When Mr Oldfield started playing with the Hume City FC, which is a VPL club, Mr Rudzki said, the VPL was administered by the Football Federation of Victoria (FFV). There were no restrictions imposed by FFV on the number of players who could play in the Premier League without being Australian citizens or permanent residents. In 2015, the VPL became the Victorian Premier Leagues when it joined the National Premier Leagues (NPL) administered by the FFA. It was at that time that the rules changed for those playing in the VPL. Under cl 5.2(c)(iii) of the National Registration Regulations issued by the FFA (NRR), the Competition Rules may specify additional rules for Visa Players including “any maximum number of Visa Players per Club per Season.” A “Visa Player” is defined as:
“… a Player that is not a citizen or resident of Australia and who requires a valid visa or work permit to enter Australia, whether to play football as an Amateur or Professional.”[19]
[19] NRR; cl 18.1; Supplementary T documents; ST1 at 28
Mr Rudzki said that the maximum number of Visa Players had been set at five for the A-League competition but, for the 2017/18 A-League Season, that is now four. This is set out at cll 7.3 and 7.4 of the Hyundai A-League & Foxtel National Youth League Player Contract Regulations 2016/17. To avoid classification as a Visa Player, a player must now be an Australian citizen and not simply a permanent resident. From 2015, only two Visa Players are permitted in the VPL, Mr Rudzki said.
Several players and administrative staff have written in support of Mr Oldfield. The first is from Mr Dean Hennessy, who is the Technical Director, Hume City FC. He has known Mr Oldfield for approximately five years since he started playing for Hume City FC. At the time, Mr Hennessy was coaching at a different club in the VPL and had the opportunity to observe him. It was immediately evident to him, Mr Hennessy said, that Mr Oldfield had been trained and developed in a professional environment from his early years and through to senior football at Liverpool FC. His assessment of Mr Oldfield’s talents was that:
“… he is a very accomplished goalkeeper, and more than capable of further development through playing at a higher level than he is playing at present.
Over the 5 seasons Chris has been playing in Victoria, I believe he has been awarded Goalkeeper of the Year in Victoria on three occasions, and has consistently been the first name mentioned by pundits within the game and the media when discussions take place regarding Goalkeepers capable of moving up to the A league. I would personally agree with these sentiments, as I have no doubts at all that Chris Oldfield would make a very big impression if playing in the Australian A league. I believe that the reason he has not been able to step up to play at this level is because he does not possess Australian Citizenship, so the game of football at national level has been denied a very good goalkeeper who would contribute to game overall and indeed, maybe even compete for a position in the National team.
In the 2015 season, Chris equalled a world record that was initially set in the early 70s, where he saved 4 penalties out of four attempts in a penalty shootout in a cup game, and he was also instrumental in cementing Hume City FC in the national landscape when he played exceptionally well in every round of the FFA Cup helping Hume City reach the semi finals of that trophy, only to lose to eventual winners Melbourne Victory f.c.”[20]
[20] T documents; T8 at 10
Mr Hennessy moved to be the Technical Director of Hume City FC for the 2015 and 2016 seasons and remained in that position for the 2017 season. Over those seasons, he has seen and worked with Mr Oldfield at close quarters and got to know him both on and off the field. During that time, Mr Oldfield has spent a lot of time helping out with the coaching of junior goal keepers and, Mr Hennessy added, “… has made an enormous impact on the development of these young players.”[21]
[21] T documents; T8 at 61
Mr Ivan Franjic holds a position as Defender at the Melbourne City Football Club (Melbourne FC), which is an A-League club. Mr Franjic has represented Australia as a member of the Australian National Soccer Team (Socceroos) on 20 occasions and has played close to 200 professional A-League games. He has also played for Torpedo Moscow where he spent a year. Mr Franjic believes that Mr Oldfield will be an asset to Australian Football and the A-League in the senior ranks as well as in developing younger players. He explained his reasons for coming to that view:
“Over the years I have attended many of Chris Oldfield’s games where I was very impressed by his ability as a goalkeeper. Having trained and played with Australian and international goalkeepers, I believe Chris has what it takes to be as good or close to that standard. In Australia it is known that there is a shortage of up and coming goalkeepers to replace current goalkeepers in the A-League. I believe if Chris had his Citizenship he would have currently played a minimum of 2 years in the A-League. Chris is one of the next generation of skilled and highly talented goalkeepers to enter the A-League. With A-League clubs such as Melbourne City we do a lot of community coaching sessions in schools and privately therefore Chris would supply a very unique type of training for goalkeepers as it is a very specific and specialised position. As mentioned previously there is a shortage of goalkeepers due to being a specialised position, coaching from players like Chris is vital for the future of the sport. A-League clubs will provide Chris the opportunity to support the community with the coaching services they offer.”[22]
[22] T documents; T8 at 62
Mr John Hutchinson has held the position of Assistant Senior Coach with the Central Coast Mariners with whom he had previously played and, for three years before his retirement as a player, captained. In a playing career spanning 21 years, Mr Hutchinson played professionally in both Victoria and New South Wales with ten of those years spent playing in the A-League with the Central Coast Mariners.
Mr Oldfield had trialled with the Central Coast Mariners for several weeks and the club had wanted to sign him as one of its goal keepers. Unfortunately, Mr Hutchinson wrote, the club did not have a spare visa position allowing it to do that. He has known Mr Oldfield for close to two years and concluded that:
“Chris is a positive, friendly, hardworking individual and has a true talent as a goal keeper, which is a desirable quality in Australian football due to the growing shortage of good goalkeepers in the Australian ‘A’ league. During the time he spent trialling at C.C.M., Chris showed his true worth as he proved to be a fantastic mentor for our younger players who looked up to him and learnt much from him. I believe he would be a great asset to any club, not only as a player, but also as someone who has enormous talent with youth development and community engagement.
If football is to continue to grow in Australia, then the game needs the help of good players and goalkeepers who are willing to perform well and give all of themselves, and Chris is definitely one of these types of desirable players that is required in our sport.”[23]
[23] T documents; T8 at 63
Mr Nick Montgomery is the current Captain of the Central Coast Mariners, with whom he has played for the past four years. He came from the Sheffield United Football Club where he played over 400 games in the top two tiers of English football. Mr Montgomery said that he believes that Mr Oldfield:
“… is a fantastic Goal Keeper and without doubt good enough to be first choice at any of the 10 A league clubs. I originally came across Chris when he came to the Mariners for a trial period. In this short period of time I could see Chris was a class act and after discussing with management at the time the club wanted to sign Chris and as club captain I was fully behind the decision. Unfortunately we did not have any visa spots available so it did not come to fruition.
I have no doubt if Chris was in the A league he would bring great experience from his time at Liverpool FC and would help share this knowledge and expertise with the young Australian children. There is a distinct lack of good young Australian Goal keepers so this would only benefit football in Australia. He is also a great character and person and no doubt would be a great asset for any club and community he was based in.”[24]
[24] T documents; T8 at 64
Mr Terry McFlynn is the Football Manager at Sydney FC, which is an A-League club. He referred to Sydney FC’s having employed Mr Oldfield on a short term contract as cover for its second goal keeper. The club was able to engage Mr Oldfield in a Visa Position as it tries to keep at least one of those positions open at all times in case special circumstances arise. The special circumstances arose when Sydney FC’s second goal keeper was signed off for medical reasons. Mr McFlynn explained what happened at the end of the contract:
“After a 6 week period, when Chris’s short term contract expired, we decided we would not re-sign Chris to a longer term playing contract and the main reason for this was that an Australian Goal Keeper became available. Had this not happened in that time frame, I can confidently state that Chris would have been in very serious consideration for securing a playing contract with Sydney f.c., albeit, his status as a permanent resident (Visa player), rather than an Australian Citizen would have presented a major challenge for us.
As it was, fortunately for us, an experienced Australian goalkeeper became available quite unexpectedly and we were able to sign him and hence maintain our club’s strategy of trying to preserve one Visa position available at all times.
Chris did a fantastic job for us during his time with Sydney FC, and I have no doubt that Chris can play and excel at A-League level. He impressed all the key coaching and management staff with his excellent abilities and very professional outlook.”[25]
[25] T documents; T8 at 67
As for Mr Oldfield’s future, Mr McFlynn noted that:
“It is a very difficult position that Chris finds himself in, as history has shown that in the 12 year history of the competition, only 2 clubs have signed foreign goalkeepers (Non Australians). All persons involved in coaching and management at our club have few doubts that Chris would be a very valuable addition to the Australian “A” league and enhance its playing ranks in the goalkeeping position, and we would certainly be very interested in securing his services if he became an [sic] non visa player and a suitable opportunity became available. It has to [sic] stated however, that the opportunities to achieve this playing status would currently be severely restricted due to his status as a ‘visa’ player.”[26]
[26] T documents; T8 at 67
Mr Rudzki also wrote a letter dated 30 January 2017 in which he reflected, in part, on the difficulties faced by Mr Oldfield as a Visa Player:
“The reason that he has not moved up into the A league is quite simply because at this moment in time, Chris is still regarded as a visa player, and A league clubs have historically demonstrated that they are not inclined to offer playing contracts to a still developing goalkeeper who would take up a highly prized and sought after visa spot which are strictly limited by A league regulations. There is little doubt that if Chris Oldfield became an Australian citizen, he would enhance his football career very quickly. As his player agent/manager, I had under estimated the value that the A league clubs placed upon their available visa spots, which history has shown to favour overseas players who have generally enjoyed a high profile and successful career overseas and were also capable of attracting larger crowds to their games.
This has substantially held back Chris’s football career in Australia, and I’m absolutely certain that he would quickly attract an offer from an ‘A’ league club once he becomes an Australian citizen, and he should go on to develop a fully professional and successful career at club and maybe even at national level.”[27]
[27] T documents; T8 at 66
Mr Oldfield explained his personal and family circumstances. He said that his whole life for the past 14 years has been devoted to football. It is all that he knows and all that he has been trained for. Although he has found regular work as an unskilled builder’s labourer working on domestic construction sites, it is not the life that enables him to do the work for which he is trained for. If he were able to do the work that he is trained for, he would be able to make a very good living and to support his family.
Mr Oldfield is married with infant twin sons. His wife is a teacher who teaches the preparatory grade at primary school. Since the birth of their sons, she is only able to work two days each week. On those two days, their maternal grandparents look after them as Mr Oldfield and his wife cannot afford to pay childcare fees. Those arrangements cause Mr Oldfield concern as his parents in law have their own difficulties as they have the full-time care of their 20 year old daughter, who suffers from cerebral palsy and frequent seizures and is bed ridden. His father in law was made redundant from the Ford factory a year ago and has been unsuccessful in obtaining further work. His mother in law works part time in the kitchen of a restaurant. Their youngest daughter is a full-time University student who lives at home. All three are carers but Mr Oldfield’s wife is called upon to assist as well. This is particularly so if her mother and sister are not in the house as her father is not comfortable in attending to his adult but bed ridden daughter’s personal needs. The family does not have support from outside agencies and does not look for it as it has found previous experiences with outside help to be unsatisfactory.
CONSIDERATION
The Citizenship Policy has set out the ordinary meanings of the individual words used in the expression “significant hardship or disadvantage”. I have set them out at [18] above and I adopt them. The Citizenship Policy goes on to distinguish between need and wants with the underlying proposition that unfulfilled needs may give rise to significant hardship or disadvantage but that unfulfilled aspirations generally do not. As a general proposition, I do not have a difficulty with that. The same is true of the three instances given under the heading “For conferral” and set out at [18] above but I do have some hesitation over the words introducing them i.e. “People would normally be required to demonstrate some or all of the following circumstances …”. My hesitation arises if insufficient attention were to be given to the word “normally”. The three instances may well be common examples of circumstances in which a person has been able to demonstrate significant hardship and disadvantage. For the reasons given by Davies J in Dainty, however, they should not be read as a statement of the only circumstances in which the discretion may be exercised in favour of a person who seeks Australian citizenship. To do that would be to read the Citizenship Policy in place of s 22(6) of the AC Act.
In this case, I find that Mr Oldfield is trained to be a professional footballer, who plays soccer. He has trained for that career since he was a young boy and his training has been at the expense of his schooling both at the primary and secondary level. Apart from football, he has no particular skills in the employment market. At the moment, Mr Oldfield is working as an unskilled builder’s labourer. He receives income as a result and also receives $110 for each soccer game in which he plays.
Mr Oldfield’s wife also earns an income by working as a preparatory teacher two days each week. There is, therefore, income coming into the family unit but, given the nature of Mr Oldfield’s work in the domestic building industry and his wife’s part time work, I accept his evidence that their financial situation is tight. I also accept Mr Oldfield’s evidence of the difficulties that his family cannot look to his parents in law for assistance beyond the childcare they now offer. Indeed, it is a situation in which both his family and that of his parents in law look to each other for support.
On the basis of the written references to which I have referred and the written and oral evidence of Mr Rudzki as well as of Mr Oldfield himself (none of which has been challenged), I accept that Mr Oldfield is unable to fulfil his potential as a soccer player, or footballer, by his lack of Australian citizenship. He has come to Australia with the expectation that he would be able to play in the A-League without Australian citizenship on the basis that he would be offered a contract as a Visa Player. Mr Rudzki takes responsibility for Mr Oldfield’s expectation as he had thought, mistakenly as it turned out, that the A-League clubs would be prepared to use one of their Visa Player positions for a young goal keeper who has trained and played with a top English soccer club and has great potential. It is clear from the letters written by Mr McFlynn, the Football Manager at Sydney FC that an A-League club has only given Visa Positions to goal keepers twice in the history of the competition. Mr Hutchinson, who was previously with the Central Coast Mariners, was of the same view. The references and letters also make it very clear that the failure to offer Mr Oldfield a Visa Position has nothing to do with his ability. Each one praises his skills and sees his future in the A-League competition. Their evidence supports the earlier report in the Hume Leader of Mr Oldfield’s skills in the semi-final game against Melbourne City who went on to win the championship in 2015. The failure to offer him a Visa Position has everything to do with the clubs’ selection of the players to whom it wants to offer Visa Positions. I accept Mr Rudzki’s evidence that the clubs want to use their quota of Visa Positions for players with an established reputation overseas. Those players draw in the crowds.
Having regard to the same evidence, I also accept that, but for his lacking Australian citizenship, it is highly likely that Mr Oldfield would have been offered a contract with an A-League club before now. He has been invited to train with a number of them and was given a short term contract with one of them; Sydney FC. It was not for lack of skill that his contract was not extended by Sydney FC but lack of Visa Positions.
Even though his financial situation is such that he and his family have to manage money very carefully, I do not find that Mr Oldfield is suffering significant financial hardship to bring him within the terms of s 22(6) of the AC Act. I do, however, find that he is suffering a significant disadvantage when regard is had to his inability to use his skills and talent in the only area of work for which he has trained and in which he has worked for a number of years. His playing career is necessarily finite and his opportunities to secure a position in the A-League become more limited as he grows older. If he is unable to secure an A-League position, his opportunities to become involved in coaching younger players and coaching generally after he has stopped playing are also diminished. These are areas in which Mr Oldfield has already made a considerable contribution in the years he has been in Australia. As Mr Rudzki explained, soccer’s governing body offers assistance to former A-League players in developing their post-playing careers. It is not assistance available to non A-League players. These are matters of significant disadvantage to Mr Oldfield. They might not be thought to be of disadvantage to many Australians but, as Davies J found in Dainty, I must have regard to Mr Oldfield’s particular circumstances. For him, I find that he is suffering a significant disadvantage. It is not a disadvantage that can be alleviated by waiting a few more months to acquire Australian citizenship for, at the age of 26 years, he is growing older and needs to get a foothold in the A-League if he is to be able to undertake the one job for which he has the skills and training.
Given the past practice of the A-League clubs not to use their Visa Positions for those playing the goal keeper position and their reasons for taking that course, it might be argued that Mr Oldfield is disadvantaged by their practice. While that may be true, there will be more positions that are not Visa Positions than Visa Positions given that there are 11 players on the field at any one time and a number of other players ready to go on as substitutes. Mr Oldfield is not qualified to be given a contract for any of those positions as matters stand at the moment. On the evidence that I have, I am satisfied that the thing that is preventing his being offered a contract is his lack of Australian citizenship. His lacking Australian citizenship is, therefore, the reason for his suffering a significant disadvantage.
I have paid no regard to the announcement made on 20 April 2017, and so after Mr Oldfield made his application under s 22(6), that the requirement for one year of permanent residency at the time of lodgement of an application for Australian citizenship by conferral would be changed to four years. The announcement was followed by the introduction of the Australian Citizenship Legislation Amendment (Strengthening the Requirements for Australian Citizenship and Other Measures) Bill 2017. That Bill is yet to be debated. Mr Oldfield submitted that the change would affect his career significantly but, consistently with the submission made by the Minister, I have given no weight at all to the stated policy change or to the introduction of the Bill. Unless and until it becomes law, it plays no part in my consideration under s 22(6).
It follows that I am satisfied that Mr Oldfield would suffer significant disadvantage, although not hardship, if a further period backdated to March 2016 were not treated as a period in which he was a person present in Australia as a permanent resident. Therefore, I set aside the decision under review and substitute a decision that, for the purposes of s 22(1)(c) of the AC Act, the 12 month period before Mr Oldfield lodged his application on 2 March 2017, is to be treated as a period during which he was present in Australia as a permanent resident. I also substitute a decision that he satisfies the general residence requirement in s 21(2)(c).
| I certify that the preceding fifty one (51) paragraphs are a true copy of the reasons for the decision herein of Deputy President Forgie |
.....[sgd]................................................................
Associate
Dated: 4 October 2017
| Date of hearing: | 15 September 2017 |
| Applicant represented by: | Mr R Rudzki Player Manager, The Onside Agency Pty Ltd |
| Solicitor for the Respondent: | Mr J Grant Sparke Helmore |
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