Reddy and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Citizenship) - [2020] AATA 4958

Reddy and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Citizenship) [2020] AATA 4958 (27 November 2020)
Division:GENERAL DIVISION
File Number:2020/1269
Re:Anandhan Reddy
APPLICANT

AndMinister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
RESPONDENT

DECISION
Tribunal:Member D Mitchell
Date:27 November 2020
Place:Brisbane

The Tribunal affirms the decision under review.
...................[SGD].............................................
Member D Mitchell
CATCHWORDS
CITIZENSHIP – Australian Citizenship Act 2007 (Cth) – citizenship by conferral – whether the discretions in section 22 apply - whether the Applicant meets the special residence requirements – section 22A – whether the Applicant was engaging in activities that are of benefit to Australia – section 22B – whether the Applicant was engaging in a particular kind of work requiring regular travel outside of Australia that are of benefit to Australia – requirements of IMMI 13/056 not met – decision under review affirmed
LEGISLATION
Australian Citizenship Act 2007 (Cth)
Australian Citizenship Regulations 2016 (Cth)
Citizenship (IMMI 13/056: Australian Citizenship Act 2007 – Specification under section 22C – Special Residence Requirement) Instrument 2013
CASES
Drake v Minister for Immigration and Ethnic Affairs (1979) 46 FLR 409
FXYV and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Citizenship) [2020] AATA 4231
Re Drake and Minister for Immigration and Ethnic Affairs (No. 2) (1979) 2 ALD 634
SECONDARY MATERIALS
Department of Immigration and Border Protection, Citizenship Policy
Department of Immigration and Border Protection, Citizenship Procedural Instructions
REASONS FOR DECISION
Member D Mitchell
27 November 2020
INTRODUCTION

Mr Anandhan Reddy (the Applicant) is a citizen of the United Kingdom.[1] He began residing in Australia on 29 January 2012 after being granted a temporary 457 visa.[2] On 24 February 2016, the Applicant became a permanent resident when he was granted a permanent 186 visa.[3]
[1]     Exhibit 1, T Documents, T4, page 11, Application for Australian Citizenship by Conferral.
[2]     Exhibit 1, T Documents, T7, page 76, Decision Record.
[3]     Exhibit 1, T Documents, T7, page 76, Decision Record.
On 20 June 2018, the Applicant made an application for Australian citizenship by conferral pursuant to section 24(1) of the Australian Citizenship Act 2007 (Cth) (the Citizenship Act).[4]
[4] Exhibit 1, T Documents, T4, pages 10-43, Form 1290: Application for Australian Citizenship by Conferral – General Eligibility 1300t (Electronic lodgement).
On 5 February 2020, a delegate of the Respondent refused the Applicant’s application for Australian citizenship by conferral. The delegate’s decision was made on the basis that they were not satisfied that the Applicant met the general residence requirements or satisfied any of the available discretions or special residence requirements.[5]
[5] Exhibit 1, T Documents, T7, pages 74-84, Notification of Refusal for Australian Citizenship by Conferral and Assessment of Application attaching the Decision Record and Review Rights.
On 28 February 2020, the Applicant applied to the Tribunal for review of the Respondent’s decision.[6] As part of his reasons for seeking review, the Applicant provided:[7]
……..
Unfortunately, it seems that the Citizenship Officer did not take into consideration that the work I am engaged in is on appointment, as the Managing Contactor, by the Australian Government’s Department of Foreign Affairs and Trade (DFAT) and is of benefit to Australia.
Find attached my employment letter of confirmation, for your perusal, which demonstrates that I do satisfy the requirements of Section 22A (persons engaging in activities of benefit to Australia) and 22B (persons engaged in particular kinds of work requiring regular travel outside Australia) of the Act.
[6] Exhibit 1, T Documents, T2, pages 3-8, Application for Review of Decision.
[7] Exhibit 1, T Documents, T2, page 7, Application for Review of Decision.
ISSUES
The issues before the Tribunal are:
(a)Whether the Applicant satisfies the general residency requirement in section 22 of the Citizenship Act?
(b)If not, whether the Applicant satisfies any of the Ministerial discretions set out in sections 22(4A), (5), (5A), (6), (9) or (11) of the Citizenship Act?
(c)If not, whether the Applicant satisfies the special residence requirement in section 22A of the Citizenship Act?
(d)If not, whether the Applicant satisfies the special residence requirement in section 22B of the Citizenship Act?
THE LAW
Section 21 of the Citizenship Act sets out that a person may make an application to the Minister to become an Australian citizen and provides the eligibility requirements. Relevantly to this application, section 21 outlines the following eligibility requirements:
General eligibility
(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
(d)understands the nature of an application under subsection (1); and
(e)possesses a basic knowledge of the English language; and
(f)has an adequate knowledge of Australia and of the responsibilities and privileges of Australian citizenship; and
(g)is likely to reside, or to continue to reside, in Australia or to maintain a close and continuing association with Australia if the application were to be approved; and
(h)is of good character at the time of the Minister’s decision on the application.
Section 22 of the Citizenship Act provides the general residence requirements as follows:
(1) 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.
Overseas absences
(1A)If:
(a)the person was absent from Australia for a part of the period of 4 years immediately before the day the person made the application; and
(b)the total period of the absence or absences was not more than 12 months;
then, for the purposes of paragraph (1)(a), the person is taken to have been present in Australia during each period of absence.
(1B)If:
(a)the person was absent from Australia for a part of the period of 12 months immediately before the day the person made the application; and
(b)the total period of the absence or absences was not more than 90 days; and
(c)the person was a permanent resident during each period of absence;
then, for the purposes of paragraph (1)(c), the person is taken to have been present in Australia as a permanent resident during each period of absence.
Confinement in prison or psychiatric institution
(1C)Subject to subsection (5A), the person is taken not to satisfy paragraph (1)(a) if, at any time during the 4 year period mentioned in that paragraph, the person was:
(a)confined in a prison; or
(b)confined in a psychiatric institution by order of a court made in connection with proceedings for an offence against an Australian law in relation to the person.
Partial exemption—person born in Australia or former Australian citizen
(2)Paragraphs (1)(a) and (b) do not apply if the person:
(a)was born in Australia; or
(b)was an Australian citizen at any time before the person made the application.
Ministerial discretion—administrative error
(4A)For the purposes of paragraph (1)(b), the Minister may treat a period as one in which the person was not present in Australia as an unlawful non‑citizen if the Minister considers the person was present in Australia during that period but, because of an administrative error, was an unlawful non‑citizen during that period.
(5)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 the Minister considers the person was present in Australia during that period but, because of an administrative error, was not a permanent resident during that period.
Ministerial discretion—confinement in prison or psychiatric institution
(5A)The Minister may decide that subsection (1C) does not apply in relation to the person if, taking into account the circumstances that resulted in the person’s confinement, the Minister is satisfied that it would be unreasonable for that subsection to apply in relation to the person.
Ministerial discretion—person in Australia would suffer significant hardship or disadvantage
(6)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.
Ministerial discretion—spouse, de facto partner or surviving spouse or de facto partner of Australian citizen
(9)If the person is the spouse, de facto partner or surviving spouse or de facto partner of an Australian citizen at the time the person made the application, the Minister may treat a period as one in which the person was present in Australia as a permanent resident if:
(a)the person was a spouse or de facto partner of that Australian citizen during that period; and
(b)the person was not present in Australia during that period; and
(c)the person was a permanent resident during that period; and
(d)the Minister is satisfied that the person had a close and continuing association with Australia during that period.
(10)In subsection (9):
surviving spouse or de facto partner of a person who has died means a person who was the person’s spouse or de facto partner immediately before the person died and who has not later become the spouse or de facto partner of another person.
Ministerial discretion—person in an interdependent relationship
(11)If, at the time the person made the application, the person:
(a)holds a permanent visa granted to the person because the person was in an interdependent relationship with an Australian citizen; and
(b)is in that interdependent relationship;
then, 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:
(c)the person held that visa during that period and the person was in that interdependent relationship during that period; and
(d)the person was not present in Australia during that period; and
(e)the person was a permanent resident during that period; and
(f)the Minister is satisfied that the person had a close and continuing association with Australia during that period.
Sections 22A and 22B of the Citizenship Act provide special residence requirements for persons engaging in activities that are of benefit to Australia and either require them to be Australian citizens or undertake work requiring regular travel outside of Australia. Sections 22A and 22B relevantly provide:
22A Special residence requirement—persons engaging in activities that are of benefit to Australia
(1)Subject to this section, for the purposes of section 21 a person (the applicant) satisfies the special residence requirement if:
(a)the following apply:
(i)the applicant is seeking to engage in an activity specified under subsection 22C(1);
(ii)the applicant’s engagement in that activity would be of benefit to Australia;
(iii)the applicant needs to be an Australian citizen in order to engage in that activity;
(iv)in order for the applicant to engage in that activity, there is insufficient time for the applicant to satisfy the general residence requirement (see section 22); and
(b)the head of an organisation specified under subsection 22C(2), or a person whom the Minister is satisfied holds a senior position in that organisation, has given the Minister a notice in writing stating that the applicant has a reasonable prospect of being engaged in that activity; and
(c)the applicant was present in Australia for a total of at least 180 days during the period of 2 years immediately before the day the applicant made the application; and
(d)the applicant was present in Australia for a total of at least 90 days during the period of 12 months immediately before the day the applicant made the application; and
(e)the applicant was ordinarily resident in Australia throughout the period of 2 years immediately before the day the applicant made the application; and
(f)the applicant was a permanent resident for the period of 2 years immediately before the day the applicant made the application; and
(g)the applicant was not present in Australia as an unlawful non‑citizen at any time during the period of 2 years immediately before the day the applicant made the application.
…….
22B Special residence requirement—persons engaged in particular kinds of work requiring regular travel outside Australia
(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
..……
For the purposes of section 22C of the Citizenship Act the Minister by legislative instrument Citizenship (IMMI 13/056: Australian Citizenship Act 2007 – Specification under section 22C – Special Residence Requirement) Instrument 2013 (IMMI 13/056) specified activities, organisations and kinds of work for the purposes of sections 22A(1)(a)(i), 22A(1)(b) and 22B(1)(a).
Relevantly, for the purposes of section 22A(1)(a)(i) of the Citizenship Act, Schedule A of IMMI 13/056 specifies the following activities:
1.Employment in a position which requires a Negative Vetting 2 or higher security clearance in a Department, an Executive Agency, or a Statutory Agency of the Commonwealth.
Relevantly, for the purposes of section 22A(1)(b) of the Citizenship Act, Schedule B of IMMI 13/056 specifies the following organisations:
1.A Department, an Executive Agency, or a Statutory Agency of the Commonwealth;
….
Relevantly, for the purposes of section 22B(1)(a) of the Citizenship Act Schedule C of IMMI 13/056 specifies that 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; 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.
Section 24 of the Citizenship Act provides that the Minister must approve or refuse to approve a person’s application to become an Australia citizen and sets out the circumstances where the Minister may or must not approve such an application. Relevantly:
(1)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.
(1A)The Minister 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).
The Department has put in place policies, procedures and instructions to assist decision makers by providing guidance on the interpretation of, and the exercise of powers under the Citizenship Act and the Australian Citizenship Regulations 2016.
The Tribunal was referred to relevant Chapters of the Citizenship Policy and the Revised Citizenship Procedural Instructions (CPIs).
Rather than reproduce whole chapters of these policy documents, relevant exerts include:
Citizenship Policy
Chapter 7A – Residence Requirement[8]
[8]     Exhibit 1, T Documents, T8, pages 85-101, Citizenship Policy Chapter 7: Residence Requirements.
Special residence requirement - activities of benefit to Australia (s22A)
A person meets the s22A special residence requirement (persons engaging in activities that are of benefit to Australia) if they are seeking to engage in an activities specified in the Minister’s instrument under s22C(1) and have the support of an organisation specified in the Minister’s instrument under s22C(2). Currently the actives are limited to:
·     employment which requires a high-level security clearance in a department, an executive agency or a statutory agency of the Commonwealth or
·     participation in the Olympic games (including the winter, summer and Paralympic competitions and qualifying events) or
·     participation in the Davis Cup or Fed Cup competitions, including qualifying events.
The organisations currently specified for the purposes of s22A(1)(b) include:
·     Any department, executive agency or statutory agency of the Commonwealth
·     The Australian Olympic Committee
·     Australian Paralympic Committee and
·     Tennis Australia.
For the purposes of s22A(1)(b), a holder of a senior position in a Commonwealth agency should be at SES Band 2 level or above.
If a person is seeking to engage in an activity that is not listed in s22C(1), or does not have the support of an organisation specified for the purposes of 22A(1)(b) that is listed in the instrument, they do not meet the special residence requirement.
A person only meets this special residence discretion if they are required to be an Australian citizen in order to engage in the relevant activity (s22A(1)(a)(iii)), and there is insufficient time for them to meet the general residence requirement before they can engage in the activity (s22A(1)(a)(iv)).
These requirements would normally be confirmed in their letter of support from the relevant organisation.
…….
Special residence requirement - work requiring regular travel outside Australia (s22B)[9]
[9]     Exhibit 1, T Documents T8, page 96, Citizenship Policy Chapter 7: Residence Requirements.
A person is eligible for the s22B special residence requirement (persons engaged in particular kinds of work requiring regular travel outside Australia) if they are engaged in work of a kind specified in the Minster’s Instrument under s22C(3). If a person is engaged in work which is not of a kind specified in the Minister’s Instrument under s22C(3), they do not meet this special residence requirement.
….
[emphasis added]
Citizenship Procedural Instructions (CPI)
CPI 8 – Residence Requirements and Discretions[10]
[10]    Exhibit 1, T Documents, T9, pages 102-116, CPI 8 – Residence Requirements and Discretions.
3.4 Special residence requirements – section 22A – Persons engaging in activities that are of benefit to Australia[11]
…..
Assessing applications where person is seeking employment in a position
requiring Negative Vetting 2 or higher in a Department, Executive Agency or
Statutory Agency of the Commonwealth
This provision essentially covers people employed under the Australian Public Service Act and does not cover:
·employment by State or Territory governments;
·employment by a business that provides services to a Department, an Executive Agency or a Statutory Agency of the Commonwealth.
[11]    Exhibit 1, T Documents T9, page 109, CPI 8 – Residence Requirements and Discretions.
…..

While the Tribunal is not bound by policy, to aid consistency, it will usually be taken into account and followed unless there are cogent reasons not to.[12]
[12] Drake v Minister for Immigration and Ethnic Affairs (1979) 46 FLR 409; Re Drake and Minister for Immigration and Ethnic Affairs (No. 2) (1979) 2 ALD 634 at 639-645.
It is noted that with respect to whether the Tribunal should apply policy, in Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634, Brennan J stated at page 645:
In my view, the Tribunal, being entitled to determine its own practice in respect of the part which ministerial policy plays in the making of Tribunal decisions, should adopt the following practice.
When the Tribunal is reviewing the exercise of a discretionary power reposed in a Minister, and the Minister has adopted a general policy to guide him in the exercise of the power, the Tribunal will ordinarily apply that policy in reviewing the decision, unless the policy is unlawful or unless its application tends to produce an unjust decision in the circumstances of the particular case. Where the policy would ordinarily be applied, an argument against the policy itself or against its application in the particular case will be considered, but cogent reasons will have to be shown against its application, especially if the policy is shown to have been exposed to parliamentary scrutiny.
APPLICANT’S EVIDENCE AND CONTENTIONS
The Applicant is an Engineering Manager employed by a private company who is contracted to the Department of Foreign Affairs and Trade (DFAT) to deliver the ANGAU Memorial Hospital Redevelopment Project in Papua New Guinea (PNG).
In written submissions, the Applicant provided that in completing his application for Australian citizenship he was aware of the residence requirements and the 90-day limit on absences outside of Australia in the 12 months prior to making an application. At the time of commencing his application he was within that timeframe. However, prior to being able to lodge his application he was notified by his employer that he was required to immediately fly to PNG, as DFAT required the company to undertake mobilisation activities without delay. It was this trip to PNG that put him over the 90-day threshold and that is why he sought approval pursuant to section 22A and 22B of the Citizenship Act.[13]
[13] Exhibit 3, Applicant Statement, pages 17-18.
The Applicant provided that:[14]
The ANGAU Memorial Redevelopment Project, as I understand it, is the largest Australian Aid project currently. Apart from the understanding between Australia and Papua New Guinea to further bilateral cooperation on health, education and law and order, it also serves as an important part of changing the Geo political dynamics strategy with …..
[14] Exhibit 3, Applicant Statement, page 18.
In a letter dated 19 June 2018, the Applicant’s employer provided:[15]
This letter serves as confirmation that [the Applicant] is on assignment as Area Manager on the ANGAU Memorial Hospital Redevelopment Project, which is being delivered on behalf of the Government of Australia – Department of Foreign Affairs and Trade (DFAT) in Papua New Guinea.
……
[The Applicant] is a key member of [our] site management team, overseeing the delivery of the Project, and as such is required to travel regularly outside Australia, to the Project in PNG, on a roster arrangement. [The Applicant’s] employment base is Brisbane, Queensland, Australia. As he’s based in Brisbane [the Applicant] will fly in and out of Brisbane, returning to Brisbane on his Rest and Relaxation (R&R) breaks.
[We] understand that [the Applicant] is in the process of applying for his Australian citizenship, and can confirm that he is a permanent resident of Australia and has been employed with [us] in Australia, since 2012. He is an Australian tax payer [TFN provided] and, whilst on ANGAU Memorial Redevelopment Project, his salary will be paid and taxed in Australian dollars.
[15] Exhibit 3, Applicant Statement attaching Letter: Confirmation of Employment, page 32.
At Hearing the Applicant was self-represented, appeared by Microsoft Teams and gave evidence under affirmation. The Tribunal considers that the Applicant was open and honest in presenting his evidence to the Tribunal. The Applicant told the Tribunal he understands the requirements of the Citizenship Act and he seeks that the Tribunal exercises it discretion to change the reviewable decision on compassionate grounds.
The Applicant told the Tribunal:
·He understands that he did not meet the general residence requirements, however only by 11 days which is technically he understands is a prescriptive requirement, however 11 days is not excessive.
·He had a long-term association and connection with Australia.
·He has resided in Australia since 2012 and during this time he has paid tax in Australia and has been involved in a number of community based programs. For example, he is a facilitator and mentor in the Career Tracker Program.
·The work he does in PNG is for the benefit of Australia and he is being put at a disadvantage because that work is situated outside of Australia. The project he is working on is an important aide and humanitarian program for Australia.
·That the meaning of the letter he provided, which is Exhibit 4 provides evidence that DFAT have given an assurance that in the event that there is a reason that he (and other employees of his employer) need to leave PNG quickly they are guaranteed to be evacuated as part of any ADF evacuation. This is important as an expatriate based in PNG. Travel restrictions led many to people to leave, however, they were asked by DFAT to remain in PNG to continue with the project.
·He was preparing his citizenship application before his work project started and he was required to deploy early due to a request made to his employer by DFAT. He did not at the time think assisting as requested would affect him adversely as he associated his work as being for the benefit of Australia.
·He did not require a security clearance to undertake his job, he just required a PNG visa.
·He did not need to be an Australian citizen to undertake his job.
·He did not contend that his job fit into the kind required to satisfy section 22B(1)(a).
·The section 22A and 22B residence requirements were the closest ones to his situation.
·While he is a contractor, he is representing DFAT and Australia at all times while he is in PNG and that is how he is seen there.
·Given the timeframe for the project to finish and that he has been asked to work on another project overseas when it concludes, if his present application for citizenship is not approved it may be another 3 to 5 years before he would be able to meet the current legislative requirements.
·He had been asked to work on these projects as a result of his skills and experience and willingness to work offshore and on a fly-in fly-out basis – which is not easy for employers to find.
·Being an Australian citizen is important to him because his goal is to settle in Australia, he is a permanent resident, was looking to purchase a property, and works for an Australian company.
·He sees Australia as home.
·There is a big difference between permanent residency and being a citizen – he wants to feel like an Australian, his allegiance is to Australia.
·He agrees he does not meet the requirements, however 11 days is not excessive and he went to PNG to benefit Australia.
·He is asking that the Tribunal look at his application in a compassionate way.
RESPONDENT CONTENTIONS
The Respondent contended that the Applicant does not meet the general residence requirement, criteria for the ministerial discretions to be exercised or the special residence requirements.[16]
[16] Exhibit 2, Respondent’s Statement of Facts, Issues and Contentions, pages 8-10, paragraphs 23-26.
At the Hearing the Respondent contended that there is no provision within the Citizenship Act that provides a general discretion to grant Australian citizenship on compassionate grounds. The Respondent submitted that section 24(1A) of the Citizenship Act provides that the Minister must not approve a person becoming an Australian citizen unless the person is eligible to become an Australian citizen under sections 21(2), (3), (4), (5), (6) or (7) of the Citizenship Act.
The Respondent further drew the Tribunal’s attention to the decision of FXYV and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Citizenship) [2020] AATA 4231 where Senior Member Polar said at [30]:
However, the statutory requirements in s22(1)(c) and s22(1B) of the Citizenship Act are explicit; there are no waiver provisions regarding compassionate circumstances. It is clear on the evidence before the Tribunal that the Applicant did not meet these requirements of the Citizenship Act as part of their application for citizenship by conferral.
CONSIDERATION
In considering this matter the Tribunal acknowledges that the work being undertaken by the Applicant is important work and is of benefit to Australia. Further, the specialist skills held by the Applicant, his willingness to work in PNG on behalf of Australia and the clear connection he has built and feels towards Australia is admirable.
Based on the evidence before the Tribunal and the submissions provided by the Applicant and Respondent at Hearing it is not in dispute that the Applicant did not meet the general residence requirement set out in section 22 of the Citizenship Act nor did any of the Ministerial directions set out in sections 22(4A), (5), (5A), (6), (9) or (11) apply. The Tribunal agrees with this evidence and submissions.
In relation to the special residence requirement set out in section 22A of the Citizenship Act the Tribunal accepts that the Applicant’s engagement in his work is of benefit to Australia. However, based on the evidence before it, the Tribunal finds that the Applicant does not meet the requirements set out in section 22A as he is employed by a private company and as such his employment cannot be considered an activity of a type specified in Schedule A of IMMI 13/056. Further the Applicant confirmed that he does not require a security clearance or Australian citizenship to undertake his role.
As set out above, it is settled legal principle that policy will be followed unless there are cogent reasons for it not to be followed. To that extend the Tribunal notes that the Policy and CPIs make it clear that employment by a business that provides services to a Department, an Executive Agency or a Statutory Agency of the Commonwealth does not fall within the kind of activities that would satisfy section 22A of the Citizenship Act.
In relation to the special residence requirement set out in section 22B of the Citizenship Act the Tribunal accepts that the Applicant’s engagement in his work is of benefit to Australia and requires him to regularly travel outside of Australia. However, based on the evidence before it, the Tribunal finds that the Applicant does not meet the requirements set out in section 22B as the duties of his work are not of a kind that fall within Schedule C of IMMI 13/056. The Applicant does not dispute this fact.
In relation to the Applicant’s contention that the Tribunal take a compassionate approach to considering his application, the Tribunal acknowledges the Applicant’s position. The Tribunal however is unable to find any discretion in the Citizenship Act that would allow it to find that the Applicant could have been considered to have met the residence requirements. To that end the Tribunal agrees with the findings of Senior Member Pola as outlined above. The Citizenship Act is clear and there are no waiver provisions in the Citizenship Act in relation to the residence requirements.
The Tribunal considers this to be a case that has arisen as a result of an unfortunate timing issue caused by the Applicant’s work requirement to travel outside of Australia.
CONCLUSION
For the reasons set out above the Tribunal finds that at the time of making his application for Australian citizenship he did not meet the general residence requirements, nor did any of the Ministerial discretions apply, nor did he meet the special residence requirements.
Accordingly, the decision under review is affirmed.

I certify that the preceding 36 (thirty-six) paragraphs are a true copy of the reasons for the decision herein of Member D Mitchell

..........[SGD]...............................
Associate
Dated: 27 November 2020

Date of Hearing: 12 November 2020

Representative for the Applicant:

Solicitor for the Respondent:

Mr Anandhan Reddy

Mr Jake Kyranis

Sparke Helmore