Singh and Minister for Home Affairs (Citizenship)

[2018] AATA 1633

Singh and Minister for Home Affairs (Citizenship) [2018] AATA 1633 (12 June 2018)

Administrative Appeals Tribunal

ADMINISTRATIVE APPEALS TRIBUNAL              )
  )         No: 2017/3348
GENERAL DIVISION  )

Re: Kalwant Singh
Applicant

And: Minister for Home Affairs
Respondent

CORRIGENDUM TO THE DECISION

TRIBUNAL:     Mr. A. Maryniak QC, Member

DATE of CORRIGENDUM:              19 June 2018

PLACE:             Melbourne

The Tribunal directs the Registrar, pursuant to subsection 43AA(1) of the Administrative Appeals Tribunal Act 1975, to alter the text of the decision in this application as follows:

1)At paragraph [23], replace ‘Jackson’ with ‘Groves’;

2)At page 10, replace ‘Melinda Jackson’ with ‘Laura Groves’.

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

Member

Division:                  GENERAL DIVISION

File Number:          2017/3348

Re:Kalwant Singh

APPLICANT

AndMinister for Home Affairs

RESPONDENT

DECISION

Tribunal:Mr. A. Maryniak QC, Member

Date:12 June 2018

Place:Melbourne

The Tribunal decides to:

1.set aside the decision of a delegate of the Respondent dated 16 May 2017 to refuse the Applicant’s citizenship application of 6 March 2017; and

2.remit the matter to the Respondent with a direction that the Applicant satisfies the ‘special residence’ requirement as provided for in s 21(2)(c) of the Australian Citizenship Act 2007.

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

Mr. A. Maryniak QC, Member

CATCHWORDS

CITIZENSHIP – application for conferral of Australian citizenship – special residence requirement – whether the Applicant is an ‘Executive Manager of an S&P/ASX All Australian 200 listed company’ – Applicant employed as an External Base Maintenance Operations Manager with Qantas – meaning of ‘Executive Manager’ – Applicant an Executive Manager – decision under review set aside and remitted with direction that the Applicant meets the special residence requirement

WORDS AND PHRASES – ‘Executive Manager’

LEGISLATION

Australian Citizenship Act 1948; s 13
Australian Citizenship Act 2007; ss 21, 22, 22A, 22B, 22C, 24 & 53
Australian Citizenship Amendment (Special Residence Requirements) Act 2013
Corporations Act 2001

Migration Act 1958; s 245AQ

CASES

Commissioner for Corporate Affairs v Bracht (1989) VR 821
Jacques v AIG Australia Ltd [2014] VSC 269
Re Lee and Department of Immigration and Ethnic Affairs (1988) 10 AAR 270

SECONDARY MATERIALS

IMMI 13/056

Explanatory Memorandum to the Australian Citizenship Amendment (Special Residence Requirements) Bill 2013

ABC AM, Fawad Ahmed on Ashes fast-track alert as Parliament moves for citizenship law changes (30 May 2013) ABC News (online) < News Room, Changes to Qantas Group Executive Team (28 August 2017) < FOR DECISION

Mr. A. Maryniak QC, Member

12 June 2018

INTRODUCTION

1. Mr Kalwant Singh (the Applicant) was born in 1953 in Perak, Malaysia.  The Applicant first arrived in Australia on 4 July 1989 and has been granted multiple Resident Return Visas (subclass 155) since, the most recent being granted on 24 October 2014.

2. The Applicant applied for Australian citizenship on 6 March 2017.  On 16 May 2017 a delegate of the then Minister for Immigration and Border Protection (the Minister), now the Minister for Home Affairs, refused the application.  The application was refused on the basis that the Applicant did not satisfy the residence requirement under s 21(2)(c) of the Australian Citizenship Act 2007 (the Act).  By way of application lodged with the Tribunal on 9 June 2017, the Applicant sought review of the decision made by the delegate to refuse his Australian citizenship application.

3. In summary, the Tribunal finds that the Applicant is employed as an Executive Manager for the purposes of the non-defined phrase, being a specified part of the ‘special residence’ requirement set out in s 22B(1)(a) of the Act. Accordingly, the decision under review is set aside and remitted to the Respondent with a direction that the Applicant meets the special residence requirement.

   EVIDENCE BEFORE THE TRIBUNAL

4. Since 17 April 2002 the Applicant has been employed by Qantas Airways Limited (Qantas), which is an S&P/ASX All Australian 200 listed company.  His initial role was that of Crew Leader Maintenance on Boeing 747 aircraft at Avalon, Victoria.

5. His next role was that of Aircraft Check Coordinator.  Over time, Qantas moved all of its heavy maintenance bases and work overseas.  In late 2015 Qantas advertised for External Base Maintenance Operations Managers.  Only five of these managers oversee Qantas’ entire fleet of aircraft worldwide.

6. The Applicant’s External Base Maintenance Operations Manager role is located at Mascot and the Applicant is employed in that role in what Qantas described as an ’executive contract.’[1]  As is evident from the Job Description[2], and from the Applicant’s evidence, the Applicant’s job involves a substantial managerial element, requiring him to execute a range of responsibilities.  He has ultimate responsibility for each heavy maintenance project which he heads up, which involves a complete heavy maintenance overhaul of one Qantas aircraft per project.

   [1] Exhibit A1, Qantas External Base Maintenance Operations Manager advertisement, closing date 15 December 2015.

   [2] Exhibit A1.

7. Each project lasts for weeks and involves about 300 subcontractors and about five Australian based Qantas employees.  At the completion of each project the Applicant must sign a delivery certificate certifying the safety of the aircraft and he usually flies home to Australia on that certified plane with the crew, returning it to service in Australia.

8. The Applicant has an office in Mascot, Sydney, but lives in Melbourne with his family.  The overseas maintenance projects he manages occur in bases in Hong Kong, Dubai, Singapore, Manila and Abu Dhabi.

9. As part of his job, the Applicant participates (by invitation) in the Qantas Manager Incentive Plan and has access to an executive motor vehicle through the Executive’s remuneration package.[3]  His job is also variously described as ‘Manager External Maintenance – Executive’, ‘External Base Maintenance Operations Manager’ and, in a 20 April 2017 letter from Mr Brian Riley (Manager Human Resources Qantas Engineering) to the Department of Immigration and Border Protection, as an ‘Executive (Management) level role’ with Qantas.

   [3] T-Documents (Exhibit R1); T7 at 143-154.

10. The Applicant stated and the Tribunal finds that his role at Qantas is at a very senior level.  Although he does not sit on the Board of Qantas, nor is he part of the ‘Qantas Group Executive Team’ as self-described in a 2017 Qantas press release[4], he does manage each maintenance project at the highest level, has key performance indicators (KPI’s) and has a budget to meet. He also has an ongoing input into relevant KPI’s and budgets regarding the heavy maintenance projects mentioned above.  He also has ongoing input into Engineering policy by reviewing it and providing feedback on a continuing basis.

    [4] Exhibit R2, Qantas News Room, Changes to Qantas Group Executive Team (28 August 2017) < FRAMEWORK

11. Division 2 of Part 2 of the Act provides for the acquisition of Australian citizenship by application.  Section 21(1) provides that a person may make an application to the Minister to become an Australian citizen.  Section 24(1) 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) provides that the Minister (or a person delegated by the Minister under s 53), ‘…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).’

12. Except in the case of eligibility under s 21(8), which effectively applies to a person born in Australia but who would otherwise be a stateless person, the Minister’s decision to approve the person’s becoming an Australian citizen is a discretionary one.  That follows from s 24(2) which provides:

    The Minister may refuse to approve the person becoming an Australian citizen despite being eligible to become an Australian citizen under subsection 21(2), (3), (4), (5), (6) or (7).

13. 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, s 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.

14. A person satisfies the general residence requirement under s 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.

15. 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.

16. It is common ground between the parties that the Applicant does not satisfy the general residence requirement. That is so because the Applicant was absent from Australia for total of 570 days in the four year period prior to making his application for citizenship. It is also common ground that the Applicant does not meet the defence service requirement.

17. If a person is unable to satisfy the general residence requirement, s 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

    …

18. Section 22C(3) of the Act enables the Minister to specify certain kinds of work, through the issuing of a legislative instrument, that enables an applicant to satisfy the special residence requirement under s 22B(1)(a).  The relevant instrument is IMMI 13/056, dated 29 May 2013 (the Instrument).  Schedule C of the Instrument relevantly details particular kinds of work for the purpose of s 22B(1)(a), requiring regular travel outside of Australia as follows:

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

    …

    (e)an Executive Manager (emphasis added) of an S&P/ASX All Australian 200 listed company; or

    ….

    CONSIDERATION

19. The Minister contends the following:

    (a)It is accepted that Qantas is an S&P/ASX All Australian 200 listed company.  However, the Applicant is not an Executive Manager at Qantas;

    (b)The phrase ‘Executive Manager’ is not defined by the Act; nor is it defined in the relevant regulations, legislative instruments or Ministerial determinations.

    (c)In the circumstances, the Tribunal should have regard to the ordinary meaning of the term ‘Executive Manager’ in determining whether the Applicant is an ‘Executive Manager’ for the purposes of s 22B(1)(a) and IMMI 13/056.

    (d)The ordinary dictionary definition of ‘Executive’ includes ‘a person or body having administrative authority as in a company.’[5]  The ordinary dictionary definition of ‘Manager’ includes ‘a person who manages … a business, organization, institution etc.; a person with an executive or supervisory function within an organization.’[6]

    (e)The question of whether a person is an ‘Executive Manager’ is an objective, rather than subjective enquiry, and the title ascribed to the employee is not determinative of the issue.  The relevant enquiry is into whether the person performs the duties of an ‘Executive Manager’.

    (f)The term ‘Executive Manager’ connotes an employee who has more than mere managerial functions within a company, and is responsible for the overall administration of the company.  In that context, the inclusion of the word ‘executive’ necessarily incorporates a reference to the highest level of management of a company, and includes responsibility for decisions that are important and central to the direction and drive of the company.

    [5] See Jaques v AIG Australia Ltd [2014] VSC 269 at [18] citing the Macquarie Dictionary, (5th Ed.), definition 2 and 4.

    [6] Oxford English Dictionary, online edition (accessed on 23 January 2018), definition 4, Annexure B to the Respondent’s Statement of Facts, Issues and Contentions.

20. The Minister also submitted that the Tribunal would be assisted by ‘understandings of executive level responsibility in other contexts’ as supporting his proposed definition. To that end, the Minister submitted that the Tribunal should have regard to the definitions of ‘executive officer’ in the context of the Migration Act 1958[7] and the Corporations Act 2001.[8]

    [7] See s 245AQ.

    [8] See Commissioner for Corporate Affairs v Bracht (1989) VR 821 at 830.

21. The Tribunal does not find the definition of the expression of ‘Executive Officer’ in the context of either the Migration Act 1958 or Corporations Act 2001 to be of any real assistance in defining a different expression in a different Act of Parliament.

22. Further, there is some tension in the Minister’s argument that the Tribunal should pay no (or very little) attention to the ‘subjective’ descriptor of the Applicant’s job by Qantas, yet at the same time the Tribunal should note that the Applicant is not part of Qantas’ ‘Executive Team’ (as self-described) and that the latter, it is contended, means he cannot be described as an ‘Executive Manager’ for the purposes of the Act.

23. Ms Jackson, solicitor for the Minister, conceded quite properly that the Tribunal could not ignore altogether the use of words by Qantas in describing the Applicant’s job as discussed in paragraph [9] above.

24. Section 22A(1A) of the Act was inserted with effect from 21 June 2013[9], whereby the Minister has a personal discretion in certain circumstances to determine that the special residence requirements in paragraphs (d) to (g) of s 22A(1) do not apply in relation to an applicant.  This amendment was made for the purpose of providing:

    an alternative pathway to Australian citizenship for a small number of people in certain circumstances … where a person has spent some time in Australia and has demonstrated an ongoing commitment to Australia.[10]

    [9]Australian Citizenship Amendment (Special Residence Requirements) Act 2013

    [10] Explanatory Memorandum to the Australian Citizenship Amendment (Special Residence Requirements) Bill 2013 at [42]-[43]

25. Interestingly the government of the day was interested in securing Australian citizenship for Fawad Ahmed, a Pakistani-born spin bowler, in time for the 2013 Ashes cricket series in England.[11]

    [11] ABC AM, Fawad Ahmed on Ashes fast-track alert as Parliament moves for citizenship law changes (30 May 2013) ABC News (online) <>

    Historically the special residence concession in the Australian Citizenship Act 1948 (the 1948 Act) was more flexible than the 2007 Act provisions.  Section 13(4)(b)(i) of the 1948 Act allowed the Minister to treat a period during which the applicant was a permanent resident and not present in Australia, and was engaged in activities that the Minister, considered beneficial to the interests of Australia, as satisfying the residence requirement.[12]

    [12] Re Lee and Department of Immigration and Ethnic Affairs (1988) 10 AAR 270 at 271-273.

26. Such background is only instructive but not determinative even though s 22B operates in a like manner, providing an alternative residence requirement for persons engaging in particular kinds of work (as per s 22C(3)) requiring regular travel outside Australia.  If an applicant satisfies s 22B they need not satisfy the general residence requirement in s 22.

27. As indicated earlier in these reasons, the Applicant is the key executive with respect to each Qantas aircraft maintenance project he is involved with, has KPI’s to meet, has to ensure adherence to budgets, has input into maintenance policy and provides feedback regarding it and is considered by Qantas itself as an executive. After considering all of the evidence in this matter and the legislative provisions and background to them, the Tribunal finds that the Applicant is an Executive Manager for the purposes of the Act and is entitled to Australian citizenship.  As one of only 5 individuals in executing that role for Qantas in respect of its entire worldwide fleet of aircraft the Tribunal finds that such a role is sufficiently senior to be properly described as an Executive Manager, both subjectively by Qantas and objectively by the Tribunal.

28. Accordingly, the Tribunal sets aside the decision of the delegate of the Respondent dated 16 May 2017 refusing the Applicant’s citizenship application of 6 March 2017. The Tribunal remits the matter to the Respondent with a direction that the Applicant satisfies the special residence requirement in s 21(2)(c) of the Act.

I certify that the preceding 29 (twenty-nine) paragraphs are a true copy of the reasons for the decision herein of Mr A. Maryniak QC, Member

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

Associate

Dated: 12 June 2018

Date of hearing:	30 April 2018
Applicant:	In person
Advocate for the Respondent:	Ms Melinda Jackson
Solicitors for the Respondent:	Australian Government Solicitor