Syrett and Minister for Immigration and Border Protection (Citizenship)

[2019] AATA 107

Syrett and Minister for Immigration and Border Protection (Citizenship) [2019] AATA 107 (7 February 2019)

Division:GENERAL DIVISION

File Number:           2017/7023

Re:Adam Syrett

APPLICANT

AndMinister for Immigration and Border Protection

RESPONDENT

DECISION

Tribunal:Senior Member Theodore Tavoularis

Date:7 February 2019

Place:Brisbane

The decision under review is affirmed.

............................[SGD]............................................

Senior Member Theodore Tavoularis

CATCHWORDS

CITIZENSHIP – residency requirements – whether Applicant resided in Australia for four years prior to his application for citizenship – whether Applicant resided in Australia as a permanent resident for the 12 months prior to his application for citizenship - whether Applicant satisfies the special residence requirements for citizenship in circumstances  where Applicant was required by work to fly in and out of Australia to work on a liquefied natural gas project – decision under review affirmed

LEGISLATION

Citizenship Act 2007 (Cth) ss 21, 22, 22A, 22B, 22C

Legislative Instrument IMMI 13/056

SECONDARY MATERIALS

Commonwealth, Parliamentary Debates, House of Representatives, 16 September 2009, 9821.

REASONS FOR DECISION

Senior Member Theodore Tavoularis

7 February 2019

BACKGROUND AND INTRODUCTION

1. Although this is a case about Australian citizenship, it is also, in a way, a case about how technological advances and changes in commercial practice can import ambiguities into once-clear legislation. Mr Adam Syrett (“the Applicant”) is a highly-trained individual. Born in England, he has since July 2008 had permanent residency in Australia and presently holds a Resident Return (subclass 155) visa. He now seeks Australian citizenship.

2. The Applicant works as a contractor on the Chevron Gorgon Liquefied Natural Gas project. Since 2011, he has been contracted directly be a number of firms to work on this project. The Applicant’s work has frequently caused him to travel outside of Australia, particularly to Ulsan, South Korea. There, he worked for a number of years on an eight weeks on, two weeks off basis. On the Respondent’s submission, this work has caused him to spend some 882 days overseas in the four-year period prior to the lodgement of his application for Australian citizenship on 22 December 2016.[1] 33 of those days of absence were in the one-year period prior to his application.[2]

   [1] Exhibit 2, Respondent’s Statement of Facts, Issues and Contentions (“SFIC”) dated 16 March 2018, [10].

   [2] Ibid.

3. The difficulty confronted by the Applicant is that the Citizenship Act 2007 (Cth) (“the Act”) sets out residence requirements on individuals seeking Australian citizenship. Under         s 21(2)(c), there are three different ways an individual may satisfy these residence requirements. The first is the “general residence requirement”, which is that an applicant must be present Australia for the entirety of the four years immediately before the day on which the applicant lodged their application for Australian citizenship, the last 12 months of which was spent as a permanent resident.[3]

   [3] Citizenship Act 2007 (Cth), s 22(1).

4. Sections 22(1A) and 22(1B) of the Act set out exceptions to the strict rules of the general residence requirement. They are, respectively, where the total period of absence is less than 12 months in the four years before the lodging of the application, and where the absence is within the 12 months immediately prior to the lodging of the application and is for not more than 90 days.

5. It is clear on the facts of this case that the Applicant does not satisfy the general residence requirements. Although s 22(1B) would apply to the Applicant in this case, his issue is the period of time he spent outside of Australia in the four years prior to lodging his application. His absence runs considerably over 24 months in the four-year period before he lodged his application for citizenship. This is well over the period of absence allowed under s 22(1A). Accordingly, I am satisfied that the Applicant does not satisfy the general residence requirements.

6. There are two additional “special residence requirements” which allow a person to satisfy the residence requirements under s 21(2)(c). First, there is s 22A, which refers to “persons engaging in activities that are of benefit to Australia”. There is also s 22B, which refers to “persons engaged in particular kinds of work requiring regular travel outside Australia”. The kinds of activities or work a person must engage in to satisfy the special residence requirements are provided in legislative instruments created pursuant to s 22C.

7. The Minister has, pursuant to s 22C, issued Legislative Instrument IMMI 13/056 (“the Legislative Instrument”), which sets out a number of activities or work a person can engage in to meet the special residence requirements. The kinds of activities listed for the purposes of s 22A include participating in an Australian team in “the Olympic Winter Games, including qualifying events for the Games”, and “any men’s or women’s International Cricket Match…”.[4] It is accepted by both the Applicant and the Respondent that the Applicant did not participate in any of the listed activities for the purposes of           s 22A. It follows that he cannot satisfy that special residence requirement.

   [4] Legislative Instrument IMMI 13/056, Schedule A, [2].

8. The question requiring rather more attention is that of whether or not the Applicant satisfies the special residence requirement in s 22B, as augmented by the Legislative Instrument. Under Schedule 3 of the Legislative Instrument, the kinds of work which meet the requirements of s 22B(1)(a) include, inter alia, “kinds of work… undertaken as part of their duties in which a person is… (c) engaged in work on a resources installation or a sea installation”.

9. The question before the Tribunal is whether, in his employment in Ulsan, the Applicant was “engaged in work on a resources installation or a sea installation”.

   WHAT WAS THE NATURE OF THE APPLICANT’S WORK?

10. The Applicant accepts that he was not, as the Respondent would have it, an offshore oil rig worker. Rather, he operated on an eight week on, two week off basis, flying between his work in Ulsan and Australia. While there, he worked on the construction of the Chevron Gorgon Liquefied Natural Gas project. Essentially, Chevron was building an enormous resources installation at Barrow Island off the coast of Western Australia to harvest liquefied natural gas fields adjacent to the island.

11. As I understood the evidence, Chevron accomplished this by building modules in Ulsan and transporting them by barge to Barrow Island. There, the modules were put together to become Chevron’s resources installation.

12. The Applicant’s work was done on the modules before they were transported to Barrow Island. In Ulsan, he was a “Quality Assurance Inspector”, ensuring all coatings, cryogenic insulation and passive fire protection systems complied with both the system specifications and quality assurance regime.[5] There can be no doubt that this was an important role in the overall construction of the installation, even if it was not undertaken during the final assembly stage of construction.

    [5] Exhibit 1, Applicant’s Statement of Facts, Issues and Contentions (“SFIC”) dated 12 February 2018, [3],

13. I will now turn to the ultimate question of this case: was the Applicant was “engaged in work on a resources installation or a sea installation”?

14. While of course this is an interpretive question, it is also in some ways a metaphysical one, and in other ways a line-drawing question. This derives from the multitudes of meanings of the word “on”. As observed by the Applicant, the Macquarie Dictionary contains some 54 definitions of the word.[6] These definitions vary from “position above and in contact with a supporting surface” to “with continuous procedure: to work on”.[7] Put another way, the Applicant submitted that “on” could encompass a number of different relationships with the installation, ranging from being physically upon it, to operating it, to constructing it. Indeed, while not submitted by the Applicant, there is little doubt that the engineers and draughtsmen who drew up the plans for the installation would certainly describe themselves as having worked “on” it, even if they never laid their eyes on it or any of its components.

    [6] Ibid, [14].

    [7] Ibid, [15]-[16].

15. The Respondent, meanwhile, contends that “on” is conditioned by “resources installation”. In its submission, a resources installation is best understood as a physical location.[8] Assuming that the Respondent’s interpretation of installation is correct, regardless of the work one is doing, working “on” a resources installation takes on the same meaning as saying working ‘at the airport’ – the installation is the place the work is done, not the item upon which the work is done. Presumably, the use of “on” as opposed to “at” is a matter of syntax rather than meaning.

    [8] Exhibit 2, Respondent’s SFIC dated 16 March 2018, [33].

16. In this context, the first line I must draw is thus: when does something become a resources installation? Is it when the prospective installation is under construction? Or is it when it is completed but being assembled or installed? Or is it only after installation?  While a reading of the words alone might lead me to one construction, I must look at their meaning in their legislative context.

17. Section 1 of Schedule C to the Legislative Instrument provides:

    1The 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.

18. The examples of crewmembers of a ship or an aircraft are particularly enlightening. The Minister did not include shipbuilders or aircraft manufacturers on the list. Instead, he chose to limit the individuals whose employment allowed them to take advantage of the special residence requirement in s 22B to those who worked on the ships or aircraft once they were operational.

19. Of course, sea or resources installations are not perfectly analogous to ships or to aircraft. Particularly in the age of enormous Liquefied Natural Gas (“LNG”) installations and projects like the Gorgon LNG project, the manufacturing or construction of resources installations is truly international in a way the more traditional shipbuilding or aircraft manufacturing industries cannot be.

20. However, that practical reality is not, to my mind, reflected in the text or intentions of the Legislative Instrument. While it was only enacted in May 2013, the nature of resources installations has changed significantly since that time. The kinds of international fly-in-fly-out work in which the Applicant engages have only come into existence relatively recently. In the absence of a reference to the construction of a resources installation, and in the context of other provisions which clearly exclude individuals working on constructing ships or aircraft from the provision, I struggle to stretch this definition to cover individuals engaged in the construction of a resources installation.

21. Further, the specific use of the word “on” in relation to resources or sea installations is less indicative of a broader range of jobs an eligible person may undertake and more representative of the fact there is no specific word for people who work on resources or sea installations. While ships and aircraft have crews and S&P/ASX All Australian 200 listed companies have Chief Executive Officers or Executive Managers, there is no corresponding word for those who work on resources installations. Rather, a wide range of specific jobs exist on such installations, ranging from engineers to, presumably, cooks. To my mind, the breadth of the phrase “engaged in work on a resources installation” reflects this.

22. Consequently, both contextually and textually, the phrase “engaged in work on a resources installation” does not take on the breadth and meaning promoted by the Applicant. Rather, it is a reference to the fact that individuals who work on operational resources installations may undertake different forms of work whilst on the resources installation, in a way that is not the case for a ship or aircraft’s crew. I am further satisfied that the installation must be operational for those working on it to fall within the ambit of this provision. Put simply, it is not enough for a person to be engaged in the construction of a resources installation for them to be working on it.

23. Both the Applicant and the Respondent drew my attention to the second reading speech of the Bill which inserted s 22B into the Act. In it, an explicit reference was made to “offshore oil rig workers” as a class of individuals to whom the special residence requirements applied.[9] This only reinforces my conclusion that “engaged in work on a resources installation” should not be read to include those who help construct the resources installation.

    [9] Commonwealth, Parliamentary Debates, House of Representatives, 16 September 2009, 9821 (Laurie Ferguson).

24. Accordingly, I find that the Applicant was not engaged in work on a resources installation or sea installation. It follows that the Applicant cannot take advantage of the special residency requirements in s 22B of the Act.

    CONCLUSION

25. I must therefore affirm the decision under review.

I certify that the preceding 25 (twenty -five) paragraphs are a true copy of the reasons for the decision herein of Senior Member Theodore Tavoularis

............................. [SGD]........................................

Associate

Dated: 7 February 2019

Date of hearing:	31 May 2018
Advocate for the Applicant:	Troy Sanders
Solicitors for the Applicant:	Troy Migration
Advocate for the Respondent:	Eleanor Cannon
Solicitors for the Respondent:	Clayton Utz