Ranasinghe and Minister for Immigration and Border Protection (Citizenship)

Ranasinghe and Minister for Immigration and Border Protection (Citizenship) [2019] AATA 227 (20 February 2019)
Division:GENERAL DIVISION
File Number: 2018/0389
Re:Kithsiri Jayanath Ranasinghe
APPLICANT

AndMinister for Immigration and Border Protection
RESPONDENT

DECISION
Tribunal:Deputy President Boyle
Date:20 February 2019
Place:Perth

The Tribunal affirms the decision under review.
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Deputy President Boyle
CATCHWORDS
CITIZENSHIP – Australian Citizenship Act 2007 (Cth) – whether the applicant meets the special residence requirement – s 22B(1)(b) – whether the applicant was engaged in that kind of work for a total of at least two years during the period of four years immediately before the day the person made the application – “that kind of work” – decision under review affirmed
LEGISLATION
Australian Citizenship Act 2007 (Cth) – ss 21(2), 22, 22(1)(a), 22A, 22B, 22B(1)(a), 22B(1)(b), 22B(1)(b)(i), 22B(1)(b)(ii), 22C(3), 22C(3)(b), 23, 24, 24(1), 52(1)(b)
SECONDARY MATERIALS
Minister for Immigration and Citizenship, Australian Citizenship Act 2007: Special Residence Requirement (Section 22C) Instrument (IMMI 13/056, 29 June 2013) – Sch C
REASONS FOR DECISION
Deputy President Boyle
20 February 2019
THE APPLICATION

The applicant seeks review of the decision of the delegate of the respondent made on

8 January 2018 under s 24(1) of the Australian Citizenship Act 2007 (Cth) (the Act) to refuse the applicant’s application for Australian citizenship (T11).
The application for review is made in accordance with s 52(1)(b) of the Act, which allows applications to be made to the Administrative Appeals Tribunal (the Tribunal) for review of a decision made under s 24 of the Act.
The application was heard on 13 November 2018.
BACKGROUND
The applicant was born in 1966. He is a citizen of Sri Lanka and first arrived in Australia on 27 May 2009. He was initially granted a Temporary Work (Skilled) visa (subclass 457) and an Employer Nomination Scheme (subclass 186) Permanent visa on 26 June 2013.
From 15 March 2012 to 17 April 2014 the applicant was engaged as a senior project engineer employed by Leighton Contractors on the construction of the Gorgon LNG jetty and marine structures on Barrow Island (the Gorgon Project) off the coast of Western Australia (applicant’s witness statement dated 25 April 2018).
From 9 November 2014 to 29 September 2016 (the date of the application for citizenship) the applicant was engaged in work for AMEC on a four week on/four week off, fly in/fly out basis out of Perth on an oil rig off the coast of Abu Dhabi (T2 at 31).
On 29 September 2016 the applicant applied for conferral of Australian citizenship (T4).
On 12 July 2017 the delegate of the respondent wrote to the applicant noting that the application was being reviewed under the special residence requirement based on the applicant’s employment in the resources industry because he did not meet the general residence requirement of s 22 of the Act (T7).
On 17 July 2017 the applicant provided documents in support of his application (T8-T9).
On 8 January 2018 the applicant’s citizenship application was refused (T11).
The applicant’s application was refused on the basis that the applicant did not meet the residence requirement under s 22(1)(a) of the Act because in the four years immediately before making the application the applicant was absent from Australia for a total of 489 days (T11 at 143). The delegate also concluded that there was no evidence to suggest that any of the exemptions or discretions contained in ss 22, 22A, 22B or 23 of the Act were satisfied. In particular, the delegate noted that the applicant had provided an employment contract from AMEC which stated that the applicant had commenced employment on 9 November 2014. The delegate noted that the applicant had only worked in this position for 22 months prior to lodging the application and therefore did not meet the requirement in s 22B(1)(b)(i) of the Act.
LEGISLATIVE FRAMEWORK
Section 21(2) of the Act sets out the general eligibility criteria for becoming an Australian citizen. Relevantly, that section provides:
(2)A person is eligible to become an Australian citizen if the Minister is satisfied that the person:
(a)is aged 18 or over at the time the person made the application; and
(b)is a permanent resident:
(i) at the time the person made the application; and
(ii) at the time of the Minister’s decision on the application; and
(c)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; and
….
It is, correctly, not contended by the applicant that he satisfies the general residence requirement of s 22, the special residence requirement of s 22A or the defence service requirement of s 23 of the Act.
Section 22B of the Act, relevantly, provides:
(1)Subject to this section, for the purposes of section 21 a person satisfies the special residence requirement if:
(a)at the time the person made the application, the person is engaged in work of a kind specified under subsection 22C(3) and the person is required to regularly travel outside Australia because of that work; and
(b)the following apply:
(i) the person was engaged in that kind of work for a total of at least 2 years during the period of 4 years immediately before the day the person made the application;
(ii) for the whole or part of that 4 year period when the person was engaged in that kind of work, the person regularly travelled outside Australia because of that work; and …
Section 22C(3) of the Act provides:
(3)The Minister may, by legislative instrument, specify kinds of work for the purposes of paragraph 22B(1)(a).
By Instrument IMMI 13/056 effective from 29 June 2013 the Minister specified kinds of work for the purposes of s 22B(1)(a) of the Act. Schedule C to this instrument provides:
1.The kinds of work are those undertaken as part of their duties in which a person is:
…
(c)engaged in work on a resources installation or a sea installation;
…
THE ISSUE
The only residence requirement that the applicant could meet is the special residence requirement under s 22B of the Act. The applicant does not contend otherwise.
The respondent identifies the issues as follows (respondent’s statement of facts, issues and contentions (SFIC) para. 11):
11.The issues for the Tribunal in this matter is:
a.Whether the applicant satisfies the special residence requirements of s.22B? This will require consideration of the following questions:
Subsection 22B(1)(a)
i.       At the date of application, was the applicant engaged in work of a kind specified under s.22C(3) of the Act; and
ii.      Because of that work was he required to regularly travel outside Australia?
Subsection 22B(1)(b)
i.       Was the applicant engaged in “that kind of work” for a total of at least 2 years during the 4 years immediately before lodging the application?
ii.      For the whole or part of that 4 year period when the person was engaged in that kind of work, did the applicant regularly travel outside Australia because of that work?
The Tribunal agrees that these are the issues for determination by the Tribunal.
The respondent concedes that the work in which the applicant was engaged at the time of the application for citizenship:
(a)was on an offshore oil rig which would come under the definition of a sea installation for the purposes of s 22B(1)(a) of the Act (respondent’s SFIC para. 19); and
(b)that his work roster required him to regularly travel outside of Australia (respondent’s SFIC para. 20).
The respondent therefore concedes that the requirements of s 22B(1)(a) of the Act are met. The Tribunal finds likewise.
The only point in contention is whether the requirements of s 22B(1)(b) of the Act, in particular the requirement of s 22B(1)(b)(i) of the Act, are met.
The applicant’s case
The applicant was engaged in that work in Abu Dhabi for some 22 months (November 2014 to September 2016). That falls short of the two year requirement in s 22B(1)(b)(i) of the Act. The applicant argues that prior to that 22 month period, within the four year period stipulated in s 22B(1)(b)(i) of the Act, he was engaged in work that would satisfy the requirement of s 22B(1)(b)(i) of the Act, namely the work on the Gorgon Project.
The applicant argues that if you included the work on the Gorgon Project he will have been engaged in the specified kind of work for greater than two years over the four years leading up to his application for citizenship thereby satisfying the requirement of

s 22B(1)(b)(i) of the Act.
The respondent’s case
The respondent submits that the work on the Gorgon Project cannot be included in the work under s 22B(1)(b)(i) of the Act because it does not fall into the category of “that kind of work” because the applicant was not required to regularly travel outside of Australia.
The difference between the parties is that the applicant contends that the phrase “that kind of work” in s 22B(1)(b)(i) of the Act only refers to the kind of work specified under

s 22C(3) of the Act and that the phrase does not import the full provisions of s 22B(1)(a) of the Act, in particular it does not include the travel requirement. The respondent contends that the phrase “that kind of work” when used in s 22B(1)(b)(i) of the Act imports all of the preceding subsection (a) with the effect that there is also a requirement that the applicant is required to regularly travel outside Australia for that work for a period of at least two years.
CONSIDERATION
The Tribunal finds the respondent’s construction to be the correct one. It is the construction that gives the words their ordinary and natural effect. In the context in which it is used in subsection (b)(i), the phrase “that kind of work” would be taken to mean the kind of work described in the immediately preceding subsection, namely subsection (a), with which subsection (b) is conjoined with the word “and”. The description of the work in subsection (a) is “work of the kind specified under subsection 22C(3) and the person is required to regularly travel outside Australia because of that work”. The full description of the work has two elements, the first being that the work is of the kind specified in s 22C(3) of the Act and the second that that work requires the person to travel outside Australia. There is no reason why the second element or characteristic of the work, namely that it requires the person to travel outside Australia, should not be included in “that kind of work” for the purposes of subsection (b).
The construction argued for by the respondent also makes more sense in light of
s 22B(1)(b)(ii) of the Act. Subsection (b) has two elements, namely that in subsection (b)(i) the work in which the person is engaged is of the kind described and that the person has been engaged in that work for a total of at least two years in the last four years; and subsection (b)(ii) that, as a matter of fact the person has travelled outside Australia for the whole or part of those four years because of that work. That is, not only does the person have to have been employed in work that required him to travel outside Australia for two years, but, as a matter of fact, he has also had to travel outside Australia because of that work for the whole or part of the four year period. Again, subsection (b)(ii) when referring to “that kind of work”, like subsection (b)(i), is referring to work which requires the person to travel outside Australia.
As the applicant had worked only for 22 months in the job that required him to travel outside Australia in the four years leading up to his application for citizenship he did not meet the special residence requirement under s 22B of the Act.
DECISION
The Tribunal accordingly affirms the decision under review.

I certify that the preceding 30 (thirty) paragraphs are a true copy of the reasons for the decision herein of Deputy President Boyle

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Associate
Dated: 20 February 2019

Date of hearing: 13 November 2018

Applicant: In person

Representative for the Respondent: Mr A Burgess

Solicitors for the Respondent: Sparke Helmore

[2019] AATA 227

20 February 2019

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Statutory Construction

Procedural Fairness

Natural Justice

Jurisdiction

Date of hearing:	13 November 2018
Applicant:	In person
Representative for the Respondent:	Mr A Burgess
Solicitors for the Respondent:	Sparke Helmore