Sharma and Minister for Home Affairs (Citizenship)

Sharma and Minister for Home Affairs (Citizenship) [2020] AATA 3803 (29 January 2020)
Division:GENERAL DIVISION
File Number:2018/6208
Re:Piyush Sharma
APPLICANT

AndMinister for Home Affairs
RESPONDENT

DECISION
Tribunal:Member S Barton
Date:29 January 2020
Place:Perth

The Reviewable Decision, being the decision of a delegate of the Respondent dated
19 October 2018, is affirmed.
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Member S Barton
CATCHWORDS
CITIZENSHIP – refusal of application for Australian citizenship by conferral – general residence requirements – whether special residence requirements met – whether the Applicant is a Scientist – decision is affirmed
LEGISLATION
Australian Citizenship Act 2007 (Cth) – ss 21(2), 22, 22(1), 22(1A), 22(1B), 22A, 22B, 22B(1), 22C, 22C(3), 24, 24(1)
Acts Interpretation Act 1901 (Cth) – s 15AA
CASES
Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634
HLLL and Minister for Immigration and Border Protection (Citizenship) [2018] AATA 771
Owoeye and Minister for Immigration and Border Protection [2018] AATA 72
Vidal-Fernandez and Minister for Home Affairs (Citizenship) [2018] AATA 4355
SECONDARY MATERIALS
Minister for Immigration and Citizenship (Cth), Immi 13/056 (29 May 2013) – schs A, B and C
REASONS FOR DECISION
Member S Barton
29 January 2020
BACKGROUND

This is an application for the review of a decision (the Reviewable Decision) of a delegate of the Respondent (the Delegate). The Reviewable Decision, made on

19 October 2018, refused the Applicant’s application for Australian citizenship by conferral (citizenship application) under s 24(1) of the Australian Citizenship Act 2007 (Cth) (the Act). The citizenship application was refused because the Applicant did not satisfy the residence requirements under s 22 of the Act.
OVERVIEW
Professor Piyush Sharma (the Applicant), was born in 1966. In January 2014, the Applicant moved to Western Australia from Hong Kong to take a position with the Curtin University Business School, in the School of Marketing (Exhibit A2, page 2; Exhibit R1, page 206). Since 6 January 2015, he has been the holder of an Employer Nomination Scheme visa.
On 31 January 2018, the Applicant lodged his citizenship application. On 19 October 2018 the Delegate refused the citizenship application on the grounds that the Applicant did not satisfy the general residence requirement under s 22 of the Act.
Section 21(2)(c) of the Act requires that to be eligible for conferral of Australian citizenship, an applicant must satisfy the general residence requirement under s 22 or the special residence requirement under s 22A.
Section 22 of the Act sets out the general residence requirements, which are as follows:
22 General residence requirement
(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.
(Original emphasis.)
The Act also makes allowances for persons being overseas during those periods in s 22:
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.
(Original emphasis.)
Under these provisions, a person is deemed to have fulfilled the residency requirement if they were not absent from Australia for more than 12 months during the four years immediately before the day of their application for Australian citizenship and were not absent from Australia for more than three months in the 12 months immediately before the day of their application.
The Applicant was absent from Australia for a total of 462 days in the period of four years prior to the day of his application for Australian citizenship, and was absent for 145 days in the 12 months immediately before the day of his application. As a result, the Applicant does not meet the general residence requirement, a fact he does not contest.
On 26 October 2018, the Applicant applied to the Tribunal for a review of the Reviewable Decision on the basis that he satisfies the special residence requirements of s 22B of the Act, because he was engaged in work of kind specified in sub-s 22C(3).
Section 22B 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
…
(Original emphasis.)
Subsection 22C(3) enables the Minister, by Minister for Immigration and Citizenship (Cth), Immi 13/056 (29 May 2013) (the Instrument), to specify the kinds of works for the purpose of 22B(1)(a). The purpose of this subsection is to allow an applicant, regularly overseas for the purpose of those kinds of work, to satisfy the special residence requirement necessary for the conferral of Australian citizenship.
Schedule A of the Instrument relates to a person engaged in employment for a Commonwealth body requiring a security clearance at or higher than Negative Vetting 2 (NV2) or a member of certain Australian sporting teams. Schedule B relates to persons employed in specified sporting organisations. Of relevance to this matter is Schedule C of the Instrument, which details the following:
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; 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.)
The Applicant’s appeal rests on his contention that he is a Scientist employed by an Australian university, with a PhD in his field of speciality, undertaking research and development of benefit to Australia.
JURISDICTION
The application for review is made in accordance with s 52(1)(b) of the Act, which allows applications to be made to the Tribunal for the review of a decision made under s 24 of the Act.
MATERIAL BEFORE THE TRIBUNAL
The hearing took place on Thursday 24 October 2019. The Applicant appeared in person and was self-represented.
The Respondent was represented by Mr Ashley Burgess of Sparke Helmore Lawyers, who appeared in person.
The Applicant gave oral evidence.
The Tribunal admitted the following documents into evidence at the hearing:
(a)
Applicant’s Submission, dated 14 June 2019 including annexures 1 - 4

(Exhibit A1);
(b)Applicant’s letter to the Administrative Appeals Tribunal (the Tribunal), dated
5 April 2019 (Exhibit A2);
(c)support letter from Professor Nigel de Busy, Curtin University Pro Vice Chancellor, dated 5 April 2019 (Exhibit A3);
(d)secondment offer from Curtin University for position of Dean of Faculty of Business, Curtin Malaysia, dated 1 April 2019 (Exhibit A4);
(e)Applicant’s curriculum vitae (Exhibit A5);
(f)
Respondent’s Statement of Facts, Issues and Contentions (SFIC), dated

17 May 2019 (Exhibit R1);
(g)further materials in relation to the definition of scientist for the purpose of item 1(f) of Schedule C to IMMI 13/056 (Exhibit R2); and
(h)section 37 documents (T- documents) numbered T1 to T10 comprising 310 pages (Exhibit R3)
ISSUE
The issue before the Tribunal is whether the Applicant is a Scientist employed by an Australian university, with a PhD in their field of speciality, undertaking research and development of benefit to Australia and therefore satisfies the special residence requirements under s 22B of the Act.
THE CONTENTIONS OF THE APPLICANT
The Applicant and his family arrived in Australia in January 2014 after his appointment as a Professor and Distinguished Research Fellow in the Curtin University School of Marketing. Since that time the Applicant says he and his family have “made a significant monetary and non-monetary contribution to the Australian society in the last five years that we have been here” (Exhibit A2, page 2). His child has become an Australian citizen and his wife, at the time of his correspondence, was awaiting the results of her application for conferral of Australian citizenship. The Applicant is seeking Australian citizenship so he and his family might “enjoy the benefits and privileges of Australian citizenship as well as share its responsibilities together” (Exhibit A2, page 2).
The Applicant contends that his application differs from previous matters heard by the Tribunal relating to the use of the term “Scientist” and s 22B, specifically
HLLL and Minister for Immigration and Border Protection [2018] AATA 771 (HLLL), Owoeye and Minister for Immigration and Border Protection [2018] AATA 72 (Owoeye), and Vidal-Fernandez and Minister for Home Affairs [2018] AATA 4355 (Vidal-Fernandez).
In HLLL the applicant was a civil engineer, in Owoeye the applicant was a legal academic, and in Vidal-Fernandez the applicant was an economist. In all three matters, the Tribunal found the applicants were not Scientists in the terms of the Instrument.
The Applicant argues that, as a full professor and distinguished research fellow, his contribution differs “from the three people in these cases who are in the early stages of their academic careers and employed as lecturers or senior lecturers” (Exhibit A2,
page 2). The Applicant continues that he was specifically appointed by Curtin University to improve its scientific reputation.
The Applicant states that his field of marketing is a scientific discipline and the nature of his work is scientific, which also sets him apart from the applicants in HLLL, Owoeye and Vidal-Fernandez (discussed above). The Applicant maintains that marketing has been recognised as a science for a long period of time, citing the establishment of the United States based Marketing Science Institute in 1961, the Academy of Marketing Science in 1971 and the Journal of the Academy of Marketing Science in 1972, of which he is a member of the editorial review board (Exhibit A2, page 3).
The Applicant is a member of the Academy of Marketing Science and has presented at its various conferences, and has published two papers in the Journal of the Academy of Marketing Science (Exhibit A2, page 3).
The Applicant also provided an extensive list of publications and conference papers (Exhibit A5, pages 2 - 6), noting that there are 21 separate references to ‘marketing science’ in the journal articles, conference papers or journal titles.
In support of his argument, the Applicant also included a reference from Professor Nigel de Busy, Pro Vice-Chancellor, Faculty of Business and Law at Curtin University
(Exhibit A3). In his reference, Professor de Bussy wrote that the Applicant:
…could not satisfy the general residence requirement… mainly due to his work-related overseas visits, which accounted for about 345 days in the four year period and about 122 days in the twelve month period, prior to his application for Australian Citizenship on 31 January, 2018.
In this context, I would like to confirm Professor Sharma’s status as an internationally renowned scholar in the fields of marketing and management, which involves frequent overseas travel…
Finally, I would like to confirm the scientific nature of Professor Sharma’s work, which is evident from the scientific research methods and advanced analytical techniques used by him…
In his written submission, the Applicant also made reference to an offer Curtin University made to him for the role of ‘Dean - Faculty of Business’ at it’s Malaysian campus for two years. He stated he was not sure he could accept the offer, unless he had Australian citizenship, because he would “have to restart the entire qualification process and meet the general residence requirement all over again” (Exhibit A2 page 3). During the hearing, the Applicant advised he had turned down the university’s offer.
On 14 June 2019, the Applicant provided the Tribunal with a further submission (Exhibit A1) in response to the Respondent’s SFIC, dated 17 May 2019 (Exhibit R1).
In this submission, the Applicant took issue with the Respondent confusing the number of days the Applicant was in Australia with the number of days the Applicant was absent from Australia. The Respondent mistakenly stated the Applicant was absent from Australia for 999 days during the four years immediately before his application for Australian citizenship, when this was actually the number of days he was in Australia. Additionally, the Respondent mistakenly stated the Applicant was absent from Australia for 220 days in the 12 months prior to his application for Australian citizenship, when this was the number of days he was in Australia.
The Applicant requested a “complete dismissal” of the rest of the submission by the Respondent (Exhibit A1 page1).
The Applicant then returned to the comparison of his circumstances with those of HLLL, Owoeye, and Vidal-Fernandez, noting, again, that they were in the “early stages of their academic careers” compared to his position of having a “global reputation as a renowned scholar in the field of marketing…” (Exhibit A1, page 2).
The Applicant detailed what he saw as his economic contribution to Australia as a permanent resident and taxpayer, his contribution to the higher education sector and restated his contention that his fields of specialisation had clearly been established as scientific disciplines.
The Applicant argued that the Respondent was using “unclear, obscure and outdated definitions of the terms Science and Scientist” which was “totally out of step with the realities of the academic and scientific world outside Australia.” The Applicant states (Exhibit A1, page 3):
More importantly, it is quite clear that ‘the term “Scientist” is not defined in the Instrument or the Act’, as admitted by the respondent in the case ‘Owoeye 2018’ referred to in its letter dated 17 May 2019. Hence, the respondent’s reliance on the “ordinary” meaning of the term “Scientist” as “someone engaged in the natural or physical sciences” should be rejected outright by the AAT or it should recommend this term to be defined more clearly in the said Instrument or Act.
In response to the Respondent’s contention that he had not provided evidence that he was required to travel overseas, the Applicant provided letters from Curtin University detailing approval for his overseas travel.
The Applicant concluded by stating that the refusal of Australian citizenship would create potential hardships for him, stating that ‘due to the unique nature of my role, which requires frequent travel, I would possibly never be able to apply for Australian citizenship!’ (Exhibit A1, page 4).
THE CONTENTIONS OF THE RESPONDENT
The Respondent states that the Applicant does not meet the general residence requirements outlined in s 22(1)(a) of the Act. Notwithstanding the error confusing the period of time in Australia with the period of time absent from Australia, this is correct. The Tribunal notes the Applicant does not dispute that he does not meet the general residence requirements.
The Respondent notes that in order to satisfy s 22B of the Act, the Applicant must be engaged in the kinds of work specified in Schedule C of the Instrument made by the Minister under s 22C of the Act. These kinds of work include “…a Scientist employed by an Australian university who has attained a PhD in their field of speciality and is undertaking research and development of benefit to Australia…” (Exhibit R1, page 5).
The Respondent accepts the Applicant has a PhD in his field of speciality and is employed by an Australian university. The Respondent also notes some of the Applicant’s overseas travel in the period in question, based on letters from Curtin University, is work related, though there is further travel for which there is no further independent evidence to support the purpose of this travel (Exhibit R1, page 6).
The Respondent contends that notwithstanding the above, the Applicant is not a Scientist and therefore does not meet the resident requirement in s 22B(1)(a) of the Act. This contention is informed by the reasoning the Tribunal applied in Vidal-Fernandez, Owoeye and HLLL.
The Respondent cites the Tribunal decision in Vidal-Fernandez, where the Tribunal found that engaging in scientific methodologies in the course of the Applicant’s work was not a sufficient basis on which to find the Applicant was a Scientist for the purposes of the Instrument. The Tribunal did not support the broadened definition of Scientist, concluding that had the legislature intended to include economists, the Applicant’s field of study, it would have done so.
In Owoeye [at 17], the Tribunal rejected the Applicant’s contention that “…the Instrument was designed to cover every researcher involved in ‘scientific’ research employed by an Australian university.” In HLLL, the Tribunal also found that engaging in science during the course of research did not make one a Scientist.
Applying this reasoning, the Respondent notes that the Applicant received a PhD from the Department of Marketing at Nanyang Technological University. ‘Science’ or ‘Scientist’ does not appear in correspondence from Curtin University and ‘there is no evidence to indicate that the work he is employed to do is the type of work that someone professionally qualified in one of the natural or physical sciences would do’

(Exhibit R1, page 7). Moreover, the Applicant is employed in the School of Marketing, within the Faculty of Business and Law.
The Respondent also noted that the Australian and New Zealand Standard Classification of Occupations (ANZSCO) did not recognise the Applicant’s field as that of a Scientist, noting that Scientists and University Lecturers are classified under separate groups.
The Respondent concluded that should the Tribunal find the Applicant is a Scientist undertaking research and development of benefit to Australia for the purposes of the Act, the Applicant has not established that, in accordance with s 22B(1)(b)(ii) of the Act, he regularly travelled outside Australia for that work.
IS THE APPLICANT A SCIENTIST?

It is clear to the Tribunal that the Applicant is a well-established and active academic in his chosen field of study, who travels regularly in the course of his duties. However, the question before the Tribunal is whether a sound case can be made that he is a Scientist within the meaning of the Instrument.
The Tribunal, though not bound by the previous Tribunal decisions discussed above, has found them a useful guide in defining what equates to a Scientist. The Tribunal is also informed by Section 15AA of the Acts Interpretation Act 1901 (Cth), which states, “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.”
As Senior Member Nikolic noted in Owoeye at [27], the term Scientist is not defined in the Act. Senior Member Nikolic addressed the issue of how this term might be defined. The Macquarie Dictionary, he noted, defined a ‘scientist’ as ‘someone with an expert knowledge of science, especially someone professionally qualified in one of the physical or natural sciences.’ Senior Member Nikolic, however, was mindful of not deferring to one particular definition from a dictionary, but to also give due regard to the intent and context of the statutory provisions (Owoeye at [32]).
Senior Member Nikolic noted at [34] that the intent and context of the special residence requirement of the Act, 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’. This, he said, was reflected when the Minister introduced this requirement to Parliament. Senior Member Nikolic quoted the Minister as follows:
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…
…These 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…
Senior Member Nikolic reasoned that the use of the term ‘Scientist’ in the Instrument, “serves to intentionally limit the category of people able to access the special residence requirement.” They are, as he noted, very specific: they must “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”, or, they must be a Scientist employed by the Commonwealth Scientific and Industrial Research Organisation or a medical research institute, which is a member of the Association of Australian Medical Research Institutes.
Senior Member Nikolic at [35] concludes that the special residence requirement is “only of assistance to Scientists within the common meaning of that term, who are undertaking work specifically provided for in the Instrument.”
Senior Member Morris in HLLL agreed with the approach taken by Senior Member Nikolic in Owoeye, and with regard to the matter before him, stated at [48] “Had the Minister intended to include engineers in that particular designation of the ‘kind of work’ that would satisfy the special residence requirement, my view is that the Instrument would expressly state that”’ Senior Member Younes, accepting the reasoning of Senior Members Nikolic and Morris, made a similar point in Vidal-Fernandez, finding at [32] that “had the legislature intended to include economists (whether research or teaching), the legislature would have expressly stated so.”
The Tribunal agrees with the approach taken by Senior Members Nikolic, Morris and Younes. The kinds of work specified in Schedule C of the Instrument are precise and unambiguous. The ordinary definition of scientist as ‘…someone with an expert knowledge of science, especially someone professionally qualified in one of the physical or natural sciences’ (see Owoeye, per Senior Member Nikolic quoting the Macquarie Dictionary at [27]) is consistent with the way in which the other kinds of work are specified and the purpose of the legislation and Instrument that it apply to a “relatively small group of people (see Owoeye, per Senior Member Nikolic at [34]).
The Applicant contends that as a professor and distinguished research fellow, the particulars of his case was quite different to the Applicants in the above matters of Owoeye, HLLL and Vidal-Fernandez. However, the Tribunal does not find this relevant to the question of whether he is a Scientist.
The Tribunal recognises that in the course of his studies and research, the Applicant uses what might reasonably be called ‘scientific methods’, involving the development of hypotheses, systematic study, observation, measurement and presentation of those findings. The Tribunal accepts that at times the Applicant’s work may be said to be scientific in nature. This is not unique to marketing as a discipline; these methods are employed in a range of academic areas including the social sciences, commerce and business, and to a certain degree, in the humanities. However, the application of scientific methods does not make one a Scientist in the common meaning of the term.
Moreover, it should be noted that the Applicant is employed by Curtin University as Professor in the School of Marketing which sits in the Faculty of Business and Law. His discipline, marketing, does not reside in Curtin University’s Faculty of Science and Engineering. If marketing were considered a science, it would be reasonable to assume that it would sit in an organisational sense under the Faculty of Science and Engineering rather than the Faculty of Business and Law.
The Applicant contends that the definition of Science or Scientist adopted by the Respondent was “unclear, obscure and outdated” (Exhibit A1, page 3). The Tribunal recognises that in academic work there can be a degree of cross discipline collaboration and sharing of methods and procedures. However, this does not change the commonly understood definition of Scientist.
The Applicant states that his field of marketing is a scientific discipline and the nature of his work is scientific, citing the establishment of the United States based Marketing Science Institute in 1961, the Academy of Marketing Science in 1971 and the Journal of the Academy of Marketing Science in 1972. Little weight can be given to this in establishing marketing as a science. The use of the term science, as with the Academy of Marketing Science and the Journal of the Academy of Marketing Science, does not make it a ‘science’, rather, it points to the use of scientific methods in the service of that discipline, as with, for example, the Australian Academy of Social Science or the Australian Journal of Political Science.
The Applicant advocates for a broader definition of Scientist; in essence, he holds that the term Scientist might be applied to an academic employed by an Australian university, who uses scientific methods in the course of their research. This broader definition runs counter to the intent and purpose of the Act and the Instrument. To paraphrase Senior Member Morris in HLLL, had the legislature intended to include academics in the Instrument they would have done so (see above paragraph [52]).
CONCLUSION
The Tribunal finds that the Applicant does not undertake a kind of work provided for in Schedule C of the Instrument for the purposes of s 22B(1)(a) of the Act. The Tribunal recognises this will be disappointing to the Applicant; however, the Tribunal needs to apply the law as it is, not as the Applicant thinks it should be.
Given that the Tribunal has found that the Applicant is not a Scientist, it is not necessary to determine if his research and development was to the benefit of Australia.
The Reviewable Decision, being the decision of a delegate of the Respondent dated
19 October 2018 is affirmed.

I certify that the preceding 62 (sixty-two) paragraphs are a true copy of the reasons for the decision herein of Member S Barton

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Associate
Dated: 29 January 2020

Date of hearing:

24 October 2019

Applicant:

Representative for the Respondent:

Self-represented

Mr Ashley Burgess

Solicitors for the Respondent:

Sparke Helmore Lawyers

[2020] AATA 3803

29 January 2020

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Jurisdiction