Owoeye and Minister for Immigration and Border Protection (Citizenship)

[2018] AATA 72

Owoeye and Minister for Immigration and Border Protection (Citizenship) [2018] AATA 72 (18 January 2018)

Division:GENERAL DIVISION

File Number(s):      2017/3800

Re:Dr Olasupo Owoeye

APPLICANT

AndMinister for Immigration and Border Protection

RESPONDENT

DECISION

Tribunal:Senior Member A. Nikolic AM CSC

Date of Decision:               18 January 2018

Date of Written Reasons:      25 January 2018

Place:Melbourne

The decision under review is affirmed.

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

Senior Member A. Nikolic AM CSC

CITIZENSHIP – application for citizenship by conferral – applicant a university law lecturer – applicant unable to satisfy general residence requirements due to extended absences overseas – whether applicant satisfies special residence requirement – whether applicant a Scientist employed by an Australian university who has obtained a PhD in his field of specialty and is undertaking research and development of benefit to Australia – decision affirmed

WORDS AND PHRASES – “Scientist”

LEGISLATION

Acts Interpretation Act 1901; ss 15AA & 15AB
Administrative Appeals Tribunal Act 1975; s 43
Australian Citizenship Act 2007; ss 21, 22, 22B, 22C, 24
Legislation Act 2003; s 13

Minister for Immigration and Citizenship, Australian Citizenship Act 2007 – Specification under Section 22C – Special Residence Requirement, IMMI 13/056, 29 May 2013

CASES

Kuzmanovski v New South Wales Lotteries Corporation [2010] FCA 876; (2010) 270 ALR 65

Negri v Secretary, Department of Social Services [2016] FCA 879; (2016) 246 FCR 1

SECONDARY MATERIALS

Second Reading Speech to the Australian Citizenship Amendment (Citizenship Test Review and Other Measures) Bill 2009

Lesley Brown (ed), The New Shorter Oxford English Dictionary (Clarendon Press, 4^th ed, 1993)

The Hon. Michael Kirby, ‘Statutory Interpretation: The Meaning of Meaning’ (2011) 35(1) Melbourne University Law Review 113

REASONS FOR DECISION

Senior Member A. Nikolic AM CSC

25 January 2018

1. On 13 April 2017 Dr Olasupo Owoeye applied for Australian Citizenship by conferral.[1] His application was refused on 5 June 2017 by a delegate of the Minister for Immigration and Border Protection, because the delegate found Dr Owoeye did not satisfy the residence requirement under section 21(2)(c) of the Australian Citizenship Act 2007 (the Act).[2] Dr Owoeye has applied to the Tribunal for review of the delegate’s decision.[3]

   [1] T-documents numbering 163 pages filed 8 August 2017 (Exhibit R1), pp.92-160.

   [2] Exhibit R1, pp.7-12.

   [3] Exhibit R1, pp.1-6.

2. The hearing was held on 18 January 2018, at the conclusion of which I made my decision ex tempore. On 22 January 2018 Dr Owoeye requested a statement in writing of the reasons for my decision. These are the reasons requested, which accord with the requirements of section 43 of the Administrative Appeals Tribunal Act. In providing them I have had regard to the decision of Bromberg J in Negri v Secretary, Department of Social Services [2016] FCA 879; (2016) 246 FCR 1, which considered the extent to which the Tribunal could elaborate upon its oral reasons when producing written reasons. His Honour stated at 9:

   ‘...As long as the reasoning remains consistent, there can be no objection to the provision of a more-elaborate exposition of the same reasoning that was orally explained. What is not permissible is altered or new reasoning. The Tribunal is not permitted to substantially divert from the reasoning upon which its decision was made, but is permitted to explain that reasoning differently and, in doing so, is required to address the matters specified in s 43(2B).’

3. For the reasons that follow, the decision under review is affirmed.

   BACKGROUND

4. Dr Owoeye was born in Nigeria in 1983 and is a citizen of that country.[4] He first arrived in Australia on 3 July 2011[5] as the holder of a temporary Student Visa (subclass 574). He became a permanent resident on 14 October 2014 when granted a permanent Skilled Independent Visa (subclass 189).[6] He is married with two children, both of whom were born in Australia.

   [4] Exhibit R1, pp.92-93

   [5] Exhibit R1, p.94.

   [6] Exhibit R1, p.7.

5. In August 2014 Dr Owoeye was awarded a Doctor of Philosophy (PhD) by the University of Tasmania (UTAS).[7] His research was undertaken within the UTAS Law Faculty and after receiving his PhD, he continued to work as a law lecturer both in Australia and overseas.

   [7] Exhibit R1, p.143.

6. Dr Owoeye states in his citizenship application that his occupation is ‘University Lecturer.’[8] After completing his PhD he worked as a law lecturer at RMIT University in Vietnam from November 2014 to June 2015,[9] and as a research fellow within the Law Faculty of the University of Augsburg in Germany.[10] Since 16 January 2017 he has been employed by RMIT University as a ‘Senior Lecturer, Law’ within its Graduate School of Business and Law.[11]

   [8] Exhibit R1, p.93.

   [9] Exhibit R1, p.127.

   [10] Exhibit R1, p.125.

   [11] Exhibit R1, p.115.

7. Dr Owoeye’s citizenship application was made under the general eligibility provisions of the Act, in which he seeks the exercise of a residence exemption or discretion, stating:

   ‘I apply as a special residence requirements applicant. I am a social scientist with a PhD in my field and I work for an Australian University.’[12]

   [12] Exhibit R1, p.94.

8. In his application to the Tribunal, Dr Owoeye submits that the Act does not contain a definition of the term ‘scientist’ and that the delegate’s decision ‘is wrong because a Law Lecturer is a social scientist and the word ‘scientist’ is broad enough to include social scientists.’[13] He submits that the term ‘Scientist’ should be ‘interpreted broadly and in accordance with the ordinary…meaning of the world (sic) in line with the literal rule of statutory interpretation.’[14]

   [13] Exhibit R1, pp.4-5.

   [14] Applicant’s Written Submissions filed 9 August 2017 (Exhibit A1), para 15.

   LEGISLATIVE FRAMEWORK

9. Section 24(1) of the Act provides that: ‘If a person makes an application under section 21, the Minister must, by writing, approve or refuse to approve the person becoming an Australian citizen.’ Section 24(1A) of the Act provides that the Minister (or a person delegated by the Minister under section 53 of the Act), ‘…must not approve the person becoming an Australian citizen unless the person is eligible to become an Australian citizen under subsection 21(2), (3), (4), (5), (6), (7) or (8).’

10. Section 21(2) of the Act requires that to be eligible for conferral of Australian citizenship, a person must satisfy eight general eligibility requirements. Relevantly for this matter, section 21(2)(c) requires that an applicant satisfies the general residence requirement (s 22), the special residence requirement (ss 22A or 22B), or the defence service requirement (s 23), at the time the person made the application.

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

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

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

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

12. Section 22(1A) provides that a person is taken to have been present in Australia for the purpose of section 22(1)(a), if their total period of overseas absence in the four years immediately before the day they made an application for citizenship was not more than 12 months. Section 22(1B) states that a person is taken to satisfy s 22(1)(c) if the total period of any absence during the 12-month period immediately before the day they made their application was not more than 90 days and they were a permanent resident during each period of absence.

13. It is not contested that Dr Owoeye is unable to satisfy the general residence requirement under section 22 of the Act due to his extended absences overseas. The Department of Immigration and Border Protection estimates those absences to be approximately 543 days in the four year period immediately prior to his application.[15] This was not contested by Dr Owoeye.

    [15] Exhibit R1, p.9.

14. If a person is unable to satisfy the general residence requirement, section 22B(1)(a) of the Act provides that:

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

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

    …

15. Section 22C(3) of the Act enables the Minister to specify certain kinds of work, through the issuing of a legislative instrument (the Instrument),[16] that enable an applicant to satisfy the special residence requirement. Schedule A of the Instrument relates to employment in a position requiring a certain level of security vetting, or participation in a listed Australian sporting team. Schedule B lists senior membership of certain sporting organisations, departments or agencies. Relevantly for Dr Owoeye’s matter, Schedule C details particular kinds of work for the purpose of section 22B(1)(a), requiring regular travel outside of Australia as follows:

    [16] Minister for Immigration and Citizenship, Australian Citizenship Act 2007 – Specification under Section 22C – Special Residence Requirement, IMMI 13/056, 29 May 2013.

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

    (a)       a member of the crew of a ship; or

    (b)       a member of the crew of an aircraft; or

    (c)       engaged in work on a resources installation or a sea installation; or

    (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; or

    (f)       a Scientist employed by:

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

    (ii)Commonwealth Scientific and Industrial Research Organisation;[17] or

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

    (g)a medical specialist, internationally renowned in their field, who is a fellow of an organisation listed in Schedule 4 – Part 1 of the Health Insurance Regulations 1975 (Cth) and holds a relevant qualification in relation to the organisation;

    (h)a person who is a writer or is engaged in the visual or performing arts and who is the holder of, or has held, a Distinguished Talent Visa.

    (*emphasis added)

    [17] CSIRO.

    ISSUE FOR DETERMINATION

16. It is not contested that Dr Owoeye has attained a PhD in his field of specialty or that he is employed by an Australian university. The key issue for determination is whether Dr Owoeye is a ‘Scientist’ undertaking research and development of benefit to Australia.

    CONTENTIONS OF THE PARTIES

    Applicant

17. Dr Owoeye gave evidence at the hearing and was cross-examined. He disagrees that the term ‘Scientist’ within the Instrument should be narrowly construed as applying only to people working in the physical and natural sciences. He submits that ‘people involved in scientific research in any discipline are considered scientists’[18] and that the Instrument ‘is designed to cover every researcher involved in ‘scientific’ research and employed by an Australian university.’[19]

    [18] Applicant’s Statement of Evidence filed 20 September 2017 (Exhibit A2), para 12.

    [19] Ibid, para 6.

18. In seeking to apply a broader definition to the term ‘Scientist,’ Dr Owoeye submits:

    A systematic study of the nature and behaviour of the material and physical universe covers both the nature and behaviour of the physical world. The definition thus covers behavioural science which is defined in the Australian Standard Classification of Education (ASCED) as “the study of the causes of behaviour as a result of individual differences, experience and environment, and the modification of that behaviour”.

    Behavioural science is also recognised as a social science in ASCED. As a matter of fact, law is substantially a behavioural science and there is an inundating volume of literature on behavioural sciences in law.[20]

    [20] Applicant’s Statement of Facts and Contentions (ASFIC) filed 18 October 2017, paras 7-8.

19. Dr Owoeye considers that even if the definition is limited to the natural and physical sciences, he still meets the requirement, because his expertise covers issues in both social and natural sciences as evidenced by his current ‘high level research on the intersection between law and the natural sciences.’[21] In support of his claims, Dr Owoeye submits that:

    [21] Ibid, para 21.

    (a)the following reference to ‘policies’ in the Australian National Science Statement, supports his view that the term ‘Scientist’ encompasses a broader category of people:

    What is meant by science?

    Natural, physical and life sciences, including medical and health sciences, mathematics, engineering and technology-related disciplines.

    This includes the full spectrum from basic to applied scientific research in both the public and private sectors, and the infrastructure, skills, institutions knowledge and policies that make it possible.[22] (*emphasis added)

    (b)given his research relates to the regulatory framework for patenting drugs, biologics and the ethical issues raised, ‘it is practically impossible to do this without some sound understanding of life sciences and pharmaceutical manufacturing processes.’[23]

    (c)he has ‘passed physical and natural science subjects, with a distinction in Biology, in the ordinary level certificate in education examination;’[24]

    (d)his Bachelor of Laws degree included courses taken in the natural and physical sciences;[25]

    (e)his PhD research was on ‘bioethics and the general legal issues involved in drug patenting,’ and that ‘bioethics is internationally recognised as a life science field that combines both natural science and social science methods;’[26]

    (f)papers he has published in the Bulletin of the World Health Organisation and other journals are ‘significantly scientific’ in that they contain ‘expositions on infectious diseases, pharmaceutical manufacturing processes and the ethical and legal issues arising from them;’[27] and

    (g)journal articles published in his name or with other authors ‘are of benefit to Australia.’[28]

    [22] Exhibit A2, page 53.

    [23] ASFIC, para 29.

    [24] Ibid, para 22.

    [25] Ibid, para 23.

    [26] Ibid, paras 24-25.

    [27] Ibid, paras 30-31.

    [28] Exhibit R1, p.111.

20. Dr Owoeye further contends that:

    (a)the Respondent’s submission about considering the word ‘Scientist’ in the context of the other words in subparagraph 1(f) of the Instrument is ‘misleading;’

    (b)it can be inferred from the use of the disjunctive conjunction ‘or’ within the Instrument regarding the three employment options for a Scientist,’ that they can ‘come from varying disciplines that may not be in the natural or physical sciences;’[29]

    (c)the Respondent’s reliance on a separate categorisation of ‘university lecturers’ and ‘scientists’ in the Australian and New Zealand Standard Classification of Occupations (ANZSCO) is ‘misconceived’ in suggesting they are mutually-exclusive occupations. That logic, he argues, would mean a university lecturer in medicine, biology or chemistry would not be considered a scientist under ANZSCO, because they were concurrently a university lecturer;[30]

    (d)application of the term ‘scientist’ to Australian permanent residents working in Australian universities after acquiring a PhD would only cover a negligible proportion of the population even when applied to all fields of study;[31]

    (e)the Instrument sets a ‘very high threshold that cannot be easily met by most scientists living in Australia, irrespective of their discipline;’[32] and

    (f)‘The interpretation favoured by the Respondent seems to be designed to render it impossible, for the negligible class of people who may still qualify, to use the system.’[33]

    [29] ASFIC, para 11.

    [30] Ibid, paras 13-14.

    [31] Ibid, para 16.

    [32] Ibid, para 17.

    [33] Ibid, paragraph 18.

    Respondent

21. The Respondent submits that law and science as ordinarily understood are distinct fields.[34] Key contentions of the Respondent are that:

    [34] Ibid, para 29.

    (a)as the term ‘Scientist’ is not defined in the Instrument or the Act, my task is largely one of statutory construction, requiring that I first construe the term in accordance with the usual principles of construction and then apply it to the Applicant’s individual circumstances;[35]

    (b)in construing the term, the Tribunal ought to have regard to the purpose of the Instrument and section 22B of the Act, the ordinary meaning of the word ‘Scientist’, and the context in which the word appears.[36] The Respondent submits that the ordinary meaning of ‘Scientist’ is ‘a person who has expert knowledge of the systematic study of the nature and behaviour of the material and physical universe.[37] In that context, it is limited to someone engaged in the natural or physical sciences;

    (c)the text of the Instrument relating to ‘Scientist’ and contextual analysis of its usage, intends that it be narrowly applied to a particular occupation or type – namely, in relation to physical or natural science. If the object of this provision was ‘every researcher involved in ‘scientific’ research’ as Dr Owoeye contends, the term ‘researcher’ would have been used instead;

    (d)guidance can be obtained from the wording of the remainder of subparagraph 1(f) of Schedule C, which provides for Scientists employed by the CSIRO or a medical research institute with membership of AAMRI;[38]

    (e)the Tribunal should have regard for extrinsic material to confirm the ordinary meaning of the term ‘Scientist,’ including the Australian and New Zealand Standard Classification of Occupations (ANZCO),[39] which reinforces that law and science are ordinarily understood as distinct fields;

    (f)Dr Owoeye’s submissions fail to consider the context in which the word ‘Scientist’ appears or the purpose of the Instrument;[40]

    (g)much of the material Dr Owoeye relies upon does not support his proposition and as a consequence, he relies on a strained interpretation of ‘Scientist’ that is inconsistent with the ordinary meaning of the word;[41]

    (h)by virtue of his previous education, employment and current role at RMIT, Dr Owoeye conducts research in his field of expertise, being law. In this regard his published research relates to intellectual property, patents, free trade and access to goods, which, although published in interdisciplinary journals, is not illustrative of his being other than a legal academic;[42] and

    (i)Dr Owoeye’s academic activities and publications do not relate to natural or physical science, which supports a finding that he is not a ‘Scientist’ for the purposes of the Act or Instrument.[43]

    [35] Statement of Facts and Contentions of the Respondent (RSFIC) filed 5 October 2017, paras 19-20.

    [36] Ibid, para 21.

    [37] Ibid, para 27.

    [38] Ibid, paras 35-36.

    [39] Supplementary T-Documents numbering 37 pages filed 5 October 2017 (Exhibit R2), pp.19-37.

    [40] RSFIC, para 46.

    [41] Ibid, para 50.

    [42] Ibid, paras 52-53.

    [43] Ibid, para 53.

    EVIDENCE OF DR OWOEYE

22. In his oral evidence, Dr Owoeye highlighted key aspects of his case and tendered his written submissions[44] and statement of evidence.[45] He submitted that for the purposes of the Act and Instrument, ‘some knowledge of science is sufficient’, that ‘every person with a PhD is doing scientific work,’ that ‘the scientist provision shouldn’t be limited to a particular group,’ and ‘systemised knowledge in general is broad enough to encompass all academics with a PhD.’ He drew my attention to various journal articles and a submission he had contributed to with three others relating to compulsory licencing and access to medicines.[46] Dr Owoeye also drew my attention to a 2014 journal article by South African legal academic MC Roos titled Is Law Science?,[47] which explores the theoretical justification for this question.

    [44] Exhibit A1.

    [45] Exhibit A2.

    [46] Exhibit R1, pp.138-142.

    [47] Exhibit A2, pp.12-49.

1. During cross-examination, Dr Owoeye said he currently taught a single course in Intellectual Property at RMIT and undertook research. He said the nature of that research was essentially up to him and that he published articles in journals, some of which were interdisciplinary and others that were not. In relation to his articles in the Bulletin of the World Health Organisation, he said it was a public health journal.

2. Dr Owoeye agreed that much of his work related to policy and regulation, often at the intersection between regulation and legislation. He also agreed that he normally lists his occupation as ‘university lecturer’ and had never listed his occupation as ‘Scientist.’  In relation to his earlier reference to behavioural science, Dr Owoeye said he had never contended that he was a behavioural scientist, only that ‘lawyers undertake behavioural science.’

3. In his closing submissions, Dr Owoeye submitted that the Instrument did not define or limit the definition of ‘Scientist’ and that ‘disciplines can’t be put into separate compartments.’ He invited me to conclude that the ordinary definition of science includes any systemised science or research, and that if the Instrument had intended to limit the provision to natural and physical science, it would have done so more specifically.  Consequently, he said that a broader category of persons, encompassing social scientists like law lecturers, should be able to rely on the provision. He submitted that the CSIRO employs persons undertaking research in areas other than natural or physical science, contending that the sort of research he undertook into regulatory frameworks relating to natural and physical science should qualify him under the special residence requirement.

4. In response to questions, Dr Owoeye discussed some of his research achievements, stating that he had applied for projects consistent with Australia’s current science and research priorities as specified by the Australian Research Council. He said the approval process was lengthy and as yet incomplete. He is not currently undertaking research in relation to those priorities or the attendant Practical Research Challenges that aim to guide investment and activity where the Australian Government considers Australia must maintain a strong research and innovation capability.

   CONSIDERATION

   What is a ‘Scientist’ Within the Meaning of the Act?

5. The term ‘Scientist’ is not defined in the Act and is used as a proper noun within the Instrument, signifying reference to a specific category of employment, rather than a more generic meaning or broader categorisation of employees or work. The Macquarie Dictionary defines ‘scientist,’ as:

   ‘noun: someone with an expert knowledge of science, especially someone professionally qualified in one of the physical or natural sciences.’[48]

   [48] Exhibit R2, p.4

6. The New Shorter Oxford English Dictionary defines ‘scientist’ as:

   ‘1.  A person conducting research in or with expert knowledge of a (usu, physical or natural) science;...’[49]

   [49] Lesley Brown (ed), The New Shorter Oxford English Dictionary (Clarendon Press, 4^th ed, 1993) p.2717.

7. The Macquarie dictionary defines ‘science’ as:

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

   2.  a particular branch of this.

   3.  systematised knowledge in general.

   4. Obsolete skill; proficiency.’[50]

   [50] Exhibit R2, p.5.

8. 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.’

9. 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 195 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) 36 CLR 60 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.’

10. 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. Former Justice of the High Court of Australia, Michael Kirby, has outlined the High Court’s elaboration of principles necessary to the accurate reading of legislation.[51] Amongst the most important of these is:

    ·‘that 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;[52]

    ·that the overall objective of statutory construction is to give effect to the purpose of Parliament as expressed in the text of the statutory provisions;[53] and

    ·that 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.’[54]

    [51] The Hon. Michael Kirby, ‘Statutory Interpretation: The Meaning of Meaning’ (2011) 35(1) Melbourne University Law Review 113, 116.

    [52] See, eg, PottervMinahan (1908) 7 CLR 277, 304 (O’Connor J); BrophovWesternAustralia (1990) 171 CLR 1, 17–18 (Mason CJ, Deane, Dawson, Toohey, Gaudron and McHugh JJ); CocovTheQueen (1994) 179 CLR 427, 437 (Mason CJ, Brennan, Gaudron and McHugh JJ); RvSecretaryofStatefortheHomeDepartment;ExparteSimms [2000] 2 AC 115, 130 (Lord Steyn)…

    [53] 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.

    [54] CollectorofCustomsvAgfa-GevaertLtd (1996) 186 CLR 389, 396–7 (Brennan CJ, Dawson, Toohey, Gaudron and McHugh JJ), quoting RvBrown [1996] 1 AC 543, 561 (Lord Hoffmann); MinisterforImmigrationandMulticulturalAffairsvKhawar (2002) 210 CLR 1, 36 [109] (Kirby J); SGHLtdvFederalCommissionerofTaxation (2002) 210 CLR 51, 91 [88] (Kirby J).

    Purpose of the Act / Instrument

11. Section 13(1)(a) of the Legislation Act 2003 provides that, unless the contrary intention appears, the Acts Interpretation Act 1901 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 1901 provides that 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.

12. 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. In accordance with section 15AB of the Acts Interpretation Act 1901, interpreting the purpose of the special residence requirement is assisted by consideration of extrinsic material. For example, the limiting effect of the provision is clearly reflected in the speech by the then Minister for Immigration and Citizenship, when the special residence requirement was introduced in the Australian Citizenship Amendment (Citizenship Test Review and Other Measures) Bill 2009:[55]

    ‘I hasten to stress that these provisions are designed for a small group of people who might be incapable of meeting the other requirements. It is not envisaged that they will be used for a large group…

    …

    …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 requirements…I think Ms Julie Bishop raised the issue with me regarding a scientist in the Antarctic…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…

    [55] Exhibit R2, pp.16-17.

13. Use of the proper noun ‘Scientist’ within the Instrument and the three employment avenues that follow, serves to intentionally limit the category of people able to access the special residence requirement. In a similar vein, the context of the surrounding words immediately following the words ‘a Scientist employed by,’ does not assist Dr Owoeye’s contention that the special residence requirement provides for a broader category of PhD-qualified academics. That’s because the conditions that must be satisfied under the special residence provision are very specific. They require an applicant to be a Scientist employed by an Australian university, with a PhD in their field of specialty, and undertaking research and development of benefit to Australia. Only two additional categories of employment are provided for under this provision; a Scientist employed by the CSIRO; or a Scientist employed by a medical research institute with membership of AAMRI. If it were the case, as Dr Owoeye contends, that the object of the provision provides for ‘all academics with a PhD,’ a different term to ‘Scientist’ and perhaps additional employment options may have been provided for. In relation to Dr Owoeye’s reliance on the Australian Science Statement, this document is a public information document released by the Federal Government to inform the Australian people about the long term importance of science to the nation's economy and society. It has no role in the legislative drafting process for the special residence requirement, or subsequent assessments about who may qualify under its provisions. On the evidence before me I find that the special residence requirement does not contemplate the broadened definition of ‘Scientist’ proposed by Dr Owoeye, and is only of assistance to Scientists within the common meaning of that term, who are undertaking work specifically provided for in the Instrument.

    In What Role is Dr Owoeye Employed? 

14. Dr Owoeye is employed within RMIT’s College of Business, which is one of three academic colleges within RMIT’s organisational structure in Melbourne. The other two are the College of Design and Social Context, and the College of Science, Engineering and Health. Different degrees are awarded for courses undertaken in each College and RMIT offers employment that distinguishes between the work expected to be undertaken within them. In Dr Owoeye’s case, he has accepted RMIT’s offer of employment as a ‘Senior Lecturer, Law,’ which is clearly distinguishable from roles that might be offered in the College of Science, Engineering and Health. Key aspects of Dr Owoeye’s role at RMIT follow:

    Position Summary

    The Senior Lecturer will contribute to the teaching and research efforts of the School in disciplines related to their field of expertise. The incumbent is to make a significant contribution to the delivery of programs and to be actively involved in research, consulting and other professional activities. The Senior Lecturer will develop, engage in and lead high quality research projects that are aligned with the University’s research focus areas to achieve success in attracting research funding and to produce high quality outputs. The Senior Lecturer will have an important research leadership role in embedding their research expertise into the life of the School and will be required to develop high-quality, productivity-driven networks across RMIT and with local, national and global, internal and external partners. The Senior Lecturer may have responsibility for program management.

    …

    Key Selection Criteria

    1. Demonstrated ability to coordinate large courses and prepare and delivery programs including online delivery at undergraduate and post-graduate levels, including high quality curriculum and program materials and ability to implement innovative approaches to student-centred learning and quality improvement in one or more of the required fields of expertise of: Property Law, Company law, Contract law, Insolvency & Competition and Consumer Law.

    2. Ability to manage a large program or a number of small programs.

    3. Demonstrated ability to support student issues related to effective learning.

    4. Emerging nationally recognised research track record including substantial record of research outputs in high quality outlets in one or more of the following areas: Governance, Accountability and the Law.

    5. Extensive experience in research leadership with the ability to build and develop collaborative research teams, mentor academic staff to deliver high quality outcomes, attract and secure external research funding to sustain research effort and manage funded research projects including complex budgets and reporting requirements.

    6. Extensive experience in supervising higher degree by research candidates to maximise research performance.

    7. Demonstrated ability to manage academic program and program team, supporting scholarly development of less experienced academic staff.

    8. Demonstrated understanding of and commitment to financial, governance and quality management systems within a university.

    9. Demonstrated high level of interpersonal, communication and negotiating skills including the ability to consult with senior executives, external bodies, produce executive reports, negotiate agreed directions, outcomes and targets within a collaborative environment.

    10. Demonstrated ability and willingness to teach in global locations and multi-cultural environments.[56]

    [56] Exhibit A1, first attachment.

15. The term ‘science’ or ‘Scientist’ does not appear in Dr Owoeye’s position summary, key selection criteria, or contract of employment with RMIT.  His role is to teach and undertake research in his field of specialty, which is law. Dr Owoeye highlighted a translated document relating to his research fellowship at the University of Augsburg’s Law Faculty in 2015, which refers to his ‘previous scientific work.’[57] Although there is no provenance to the translation of this letter (unlike the certificate that follows[58]), I consider that use of the word ‘scientific’ relates to its broad meaning in a research context. It does not constitute evidence that Dr Owoeye is a ‘Scientist’ within the meaning of the Instrument or Act. Moreover, the unspecific reference to Dr Owoeye’s ‘previous work’ as a research fellow in Germany does not assist consideration of whether he is undertaking research and development of benefit to Australia in the context of his current employment within an Australian university.

    [57] Exhibit R1, pp.123.

    [58] Ibid, p.125.

16. I note the distinction between occupational groupings made in the ANZSCO,[59] which is a skill-based classification system for occupations and jobs in the Australian and New Zealand labour markets. Scientists are classified under the broad group Design, Engineering, Science and Transport Professionals, then within a sub-group titled Natural and Physical Science Professionals.[60] University Lecturers and Tutors on the other hand are categorised in an entirely different group, clearly distinguishable from scientists.[61] ‘Social scientist’ is not a recognised occupation within ANZSCO.

    [59] Exhibit R2, pp.19-37.

    [60] Ibid, pp. 28-29.

    [61] Ibid, pp.31-32.

17. Dr Owoeye’s reliance on the article Is Law Science? by a South African legal academic is of little assistance in any determination regarding a person’s eligibility pursuant to a Ministerial Instrument under Australian law. The same can be said of Dr Owoeye’s reliance on ‘A Background in Science,’ commissioned by the Australian Council of Deans of Science in April 2012.[62] In light of the scope (examining the ‘reach of science in Australia’ and the way ‘people draw upon their science backgrounds’), method (qualitative survey of 800 university graduates) and the disconnected nature of the report with the application currently before me, it does not assist my deliberations in this matter.

    [62] Exhibit A2, pp.93-125.

    CONCLUSION

18. The word ‘Scientist’ is not defined in the Act but is an ordinary English word and should be given its ordinary meaning in the context intended by the Act and Instrument. It should be read as referring to a person employed as a ‘Scientist,’ who is undertaking the specific work in the Instrument. As instructed by section 15AA and 15AB of the Acts Interpretation Act 1901 (Cth), that construction should be preferred over the broadened definition advanced by Dr Owoeye.

19. Dr Owoeye’s PhD research was supervised by the UTAS Faculty of Law. His subsequent work as a university lecturer and research fellow has also been in the field of law. His current position is Senior Lecturer, Law within RMIT’s College of Business – not its College of Science, Engineering and Health. To say Dr Owoeye’s work at RMIT is that of a ‘Scientist,’ would be inconsistent with the available facts and the intent of the Instrument and Act. Dr Owoeye’s submissions misinterpret the intent of the special residence requirement and the context of this provision within the Instrument and Act. I find that the work he undertakes is not a kind of work provided for at Schedule C of the Instrument for the purpose of section 22B(1)(a) of the Act.

20. Given the finding above, it is not necessary to determine if Dr Owoeye is undertaking research and development of benefit to Australia. For completeness, however, it does not follow that any research or development undertaken at an Australian university is of benefit to Australia within the meaning of the Act and Instrument. Dr Owoeye’s evidence is that his PhD expertise centres on ‘bioethics and the general legal issues involved in drug patenting.’ I have noted the journal articles and other materials he relies upon and while the research he has authored or contributed to may generally contribute within his field of expertise, the evidence does not support a finding that it is of benefit to Australia within the meaning of the Act or Instrument.

    DECISION

1. It follows that the decision under review is affirmed.

I certify that the preceding 43 (forty-three) paragraphs are a true copy of the reasons for the decision herein of Senior Member A. Nikolic AM CSC

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

Associate

Dated: 25 January 2018

Date(s) of hearing:	18 January 2018
Applicant:	In person
Advocate for the Respondent:	Ms Kylie McInnes
Solicitors for the Respondent:	Australian Government Solicitor