Vidal-Fernandez and Minister for Home Affairs (Citizenship)
[2018] AATA 4355
•22 November 2018
Vidal-Fernandez and Minister for Home Affairs (Citizenship) [2018] AATA 4355 (22 November 2018)
Division: GENERAL DIVISION
File Number(s): 2018/1064
Re:Marian Vidal-Fernandez
APPLICANT
AndMinister for Home Affairs
RESPONDENT
DECISION
Tribunal:Senior Member Antoinette Younes
Date:22 November 2018
Place:Sydney
The decision under review is affirmed.
................................[sgd].............................
Senior Member Antoinette Younes
CATCHWORDS
CITIZENSHIP – eligibility – citizenship by conferral – residence requirement not satisfied – overseas absence from Australia greater than 12 months – whether applicant meets the special residence requirement – whether applicant meets the definition of a scientist as contemplated by the legislative instrument IMMI 13/056 – whether applicant engaged in particular kinds of work requiring regular travel outside Australia – decision under review affirmed
LEGISLATION
Acts Interpretation Act 1901 - s 15AA
Australian Citizenship Act 2007 - ss 21, 21(2), 22, 22A, 22B, 22C
Australian Citizenship Amendment (Citizenship Test Review and Other Measures) Bill 2009Minister for Immigration and Citizenship (Cth), Special Resident Requirement (Section 22C), IMMI 13/056, 29 May 2013
CASES
HLLL v Minister for immigration and border protection (citizenship) [2018] AATA 771
Owoeye v Minister for immigration and border protection (citizenship) [2018] AATA 72
SECONDARY MATERIALS
Macquarie Dictionary, 7th edition, March 2017
REASONS FOR DECISION
Senior Member Antoinette Younes22 November 2018
APPLICATION FOR REVIEW
This is an application for review of a decision made by a delegate of the Minister for Home Affairs (the Minister) on 8 February 2018 to refuse the application for Australian citizenship by conferral, which the applicant lodged on 7 June 2017.
The delegate refused the application on the basis that the applicant did not satisfy relevant requirements of the Australian Citizenship Act 2007 (the Act). Specifically, the delegate found that the applicant did not meet the residence requirements of subsection 21(2)(c) of the Act.
For the following reasons, the Tribunal has concluded that the delegate’s decision should be affirmed.
RELEVANT LEGISLATION
Subsection 21(1) of the Act provides that a person may make an application to the Minister to become an Australian citizen. In accordance with subsection 24(1) of the Act, the Minister must in writing, approve or refuse to approve the person becoming an Australian citizen. Subsection 24(1A) of the Act, provides that 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).
Subsection 21(2)(c) provides, amongst other things, that a person is eligible to become an Australian citizen if the Minister finds that the person 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.
Under s 22(1), 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 four year period; and
(c)the person was present in Australia as a permanent resident for the period of 12 months immediately before the date the person made the application.
Subsection 22(1A)(a) provides that if a person is absent from Australia for a part of the four-year period specified in s 22(1)(a) and the total period of the absence or absences is no more than 12 months pursuant to s 22(1A)(b), then the applicant is taken to have been present in Australia during the absence(s). Section 22(1B) provides a similar exemption in relation to absences during the 12 months period referred to in s 22(1)(c) provided the total period of absence(s) is no more than 90 days: s 22(1B)(b) of the Act.
Section 22A provides, amongst other things, that a person may satisfy the special residence requirement in s 21 if the person is seeking to engage in a specified activity, which engagement would be of benefit to Australia, the person needs to be an Australian citizen in order to engage in that activity and in order for the person to engage in that activity, there is insufficient time for the person to satisfy the general residence requirement. The activities are specified by the Minister in a legislative instrument under subsection 22C(1). These activities are currently specified as:
(i)Employment in a position which requires a high level security clearance in a department, an executive agency, or a statutory agency of the Commonwealth.
(ii)Participation in an Australian team competing in specified competitions.
Section 22B provides that a person may satisfy the special residence requirement in s 21 if, amongst other things, 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.
Relevant to the current matter, s 22C in turn refers to a legislative instrument for the purposes of this provision and in this instance, that instrument is IMMI 13/056 (Instrument). The kinds of work specified are:
(a)a member of the crew of a ship; or
(b)a member of the crew of an aircraft; or
(c)engage 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 companies; or
(e)an Executive manager of an S&P/ASX All Australian 200 listed companies; or
(f)a Scientist employed by:
(iii)an Australian university who has attained a PhD in the field of speciality and is undertaking research and development of benefit to Australia; or
(iv)Commonwealth scientific and industrial research organisation; or
(v)a medical research Institute which is a member of the Association of Australian Medical Research Institutes (AAMRI).
(g)a medical specialist, internationally renowned in the 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.
The applicant’s contentions
The applicant is a national of Spain who was born in Barcelona. She holds a Doctor of Philosophy (PHD) in Economics from Boston University, completed in 2011. She has extensive research experience and has notable publications. She has delivered academic papers in Australia and international venues.
On 17 June 2010, she was granted a subclass 121 (permanent employer-sponsored) visa, subsequent to being sponsored by the University of New South Wales for the position of Lecturer in the School of Economics. Since July 2015, she has been employed by the University of Sydney as a Senior Lecturer in the School of Economics.
The evidence[1] before the Tribunal indicates that the applicant’s interval calculator shows that she was absent from Australia for a total of more than 12 months during the four years immediately before the day she lodged her citizenship application. She therefore does not meet the general residence requirement in s 22(1)(a).
[1]Supplementary T-Documents pp. 296-297
The applicant is seeking to meet the special residence requirements in ss 22A and 22B of the Act. The applicant’s permanent residence commenced when she arrived in Australia in August 2010. She is currently the holder of a subclass 155 resident return visa which was granted on 20 April 2015.
In her application for review, the applicant indicated that her title of Lecturer is confusing because most of her work is devoted to research and she only devotes 25% of her time to teaching[2].
[2] T documents, p 5
The applicant contended that she meets the two exceptions to the residence requirement on the basis that:
·Most Australian universities provide six months for overseas study leave to research active scientists. It is therefore impossible to comply with the four-year residence requirement when being research active.
·She has published and participated in scientific committees. She has been invited to present her work internationally.
·She works for the benefit of Australia by teaching and supervising Australian PhD and honours students. Although the title of her position is lecturer, most of her work is devoted to research. Her teaching time is only 25%. She is a scientist as defined at an Australian university.
The applicant argued that she is a scientist and due to research commitments, she has been required to travel outside of Australia regularly which has made it impossible for her to comply with the four-year residence requirement.[3]
[3] Ibid, p 5
In support, the applicant provided substantial material including, but not limited to:
·Letter of support from Professor Harmon of the University of Sydney, dated 6 June 2017 referring, amongst other things to the applicant’s research around microeconomics particularly labour economics and human capital. Professor Harmon commented on the applicant’s research being integral to the Australian Research Council Centre of Excellence in Life Course Research.
·Reference from Rebecca Edwards, the University of Sydney, dated 11 September 2018.
·Invitation to the applicant from Antonio Miralles Asensio of the Universitat Autonoma de Barcelona, to spend mid-June to mid-July 2017 at the university to explore collaborative research partnership.
·Email of 20 March 2015 to the applicant from Dr Martin Karlsson from the University of Duisburg-Essen, Germany, referring to the selection of the applicant’s paper at a conference.
·Letter to the applicant from Osea Guintella, University of Oxford, Nuffield College, in fighting the applicant to a seminar.
·Letter dated 14 March 2017 to the applicant from Dr Ana Nuevo-Chiquero, the University of Edinburgh inviting the applicant to attend the school of economics at the University in June 2017.
·Journal article titled Dynamic and heterogenous effects of sibling death on children’s outcomes, which the applicant co-authored and published on 2 January 2018.
·The applicant’s CV.
·Documents relating to the applicant’s involvement in the Sydney Women’s Mentoring Program Selection Committee.
ISSUE FOR DETERMINATION
Whether or not the applicant is a scientist as contemplated by IMMI 13/056 (Instrument)?
The Tribunal accepts that applicant holds a PhD in her field of specialty and that she is employed by an Australian university, namely the University of Sydney. The central issue to be determined is whether the applicant is a scientist for the purpose of the Instrument.
In essence, the applicant contends that she is actively involved in research employing scientific methodologies and her work has been published in reputable scientific journals, including the Proceedings of the National Academy of Sciences (PNAS). In a letter to the Tribunal provided on 12 June 2018, the applicant noted that she uses “large datasets and sophisticated statistical models” and that as a social scientist, she relies on evidence-based evaluations.
The respondent has contended that the applicant does not meet the definition of a scientist as contemplated by IMMI13/056. The respondent relied on the decisions of Owoeye[4] and HLLL[5] where the Tribunal (differently constituted) adopted a narrow construction of the term scientist.
[4] Owoeye v Minister for immigration and border protection (citizenship) [2018] AATA 72 (Owoeye).
[5] HLLL v Minister for immigration and border protection (citizenship) [2018] AATA 771 (HLLL).
In Owoeye, the applicant disagreed that the term scientist referred to in the Instrument should be narrowly construed as applying only to those working in the physical and natural sciences. The applicant in that case submitted that those involved in scientific research in any discipline are considered to be scientists and that the Instrument is designed to cover every researcher employed in the University and involved in scientific research. However, this was not accepted by the Tribunal; the Tribunal found that the purpose of the special residence requirement was to enable a pathway to citizenship for a “relatively small group of people undertaking specific types of work” and that the use of the proper noun scientist within the Instrument and the three employment avenues that followed, served to intentionally limit the category of people able to access the special residence requirement[6].
[6] Owoeye at paras [34]-[35].
In HLLL, the applicant contended that the term scientist in the Instrument is broad and inclusive and should capture engineering, the applicant’s field. This argument was rejected by the Tribunal. The Tribunal found that the applicant is not a scientist in terms of the Instrument.
The applicant contended that both Owoeye and HLLL related to different fields, namely law and engineering, different from her field of economics. The respondent argued that the reasoning in both decisions ought to be followed by the Tribunal.
What is a scientist?
The term scientist is not defined in the Act or in the Instrument. The term is used as a proper noun within the Instrument in reference to a specific category of employment rather than a generic term which would capture a wide range of professionals.
In accordance with the general rules of statutory interpretation, it is appropriate for the Tribunal in construing this term to consider the ordinary and everyday meaning of the word but also to defer to the intent and context of the provision.
The Macquarie Dictionary (2017 Edition) defines scientist and science as:
scientist noun someone with an expert knowledge of science, especially someone professionally qualified in one of the physical or natural sciences.
Science noun 1.
(a)The systematic study of the nature and behaviour of the material and physical universe, based on observation, experiment, and measurement, often leading to the formulation of laws to describe the results of such procedures in general terms.
(b)The knowledge so obtained.
2. a particular branch of this.
3. systemised knowledge in general.
4. Obsolete skill: proficiency.
Section 15AA of the Acts Interpretation Act 1901 states that:
Interpretation best achieving Act's purpose or object
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.
The Tribunal in the decision of Owoeye referred to the special residence requirement provision which was introduced in the Australian Citizenship Amendment (Citizenship Test Review and Other Measures) Bill 2009 and its limiting application was highlighted as follows[7]:
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 would be used for a large group…
…
… The amendments seek to introduce a special resident requirement for a small group of people who did not have pathway to citizenship due to work-related requirements… I think Ms Julie Bishop raised the issue with me regarding scientist in the Antarctic… This is an issue where people basically cannot, as a result of their occupation and been out of the country for long periods, get access to citizenship. They are Australian permanent residents…
[7] Ibid at para [34].
The Tribunal accepts the evidence that as part of her academic work, the applicant is involved in research using scientific methods. She has argued that she is a social scientist. However, the Tribunal is of the view and consistent with HLLL that engaging in scientific methodologies in the course of the applicant’s work is insufficient to ground a finding that she is a scientist for the purposes of the Instrument. It is clear on the evidence before the Tribunal that she is not employed at the University of Sydney as a scientist, nor was she employed at the University of New South Wales as a scientist. The applicant is employed as a Senior Lecturer undertaking research, as well as, having a teaching component of 25% of her duties. In her citizenship application, the applicant identified her occupation as University Lecturer.[8] The Tribunal gives weight to the respondent’s submissions that the Australian and New Zealand Standards Classification of Occupations (ANZSCO) does not recognise the applicant’s field of expertise as that of a scientist; scientists are classified by ANZSCO under a different subgroup to university lecturers, distinguishable from one another by their respective groupings and tasks.
[8] T documents p 56.
In the matter of HLLL, the applicant was employed as a lecturer in civil engineering and then as a research fellow in the engineering school. The Tribunal in that matter did not accept that the applicant’s work would fall within the kind of work contemplated by the Instrument.
On the evidence, the Tribunal is satisfied that the applicant’s contentions are not supported when considered in the context where the term scientist appears and for the purpose of the Instrument. The Tribunal is satisfied that the purpose of the special residence requirement 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. The Tribunal is of the view that had the legislature intended to include economists (whether research or teaching), the legislature would have expressly stated so. The Tribunal finds that the special residence requirement does not contemplate the broadened definition used by the applicant.
Although the Tribunal is not bound by other decisions of the Tribunal, they are highly persuasive. The Tribunal accepts the reasoning in HLLL and Owoeye that the use of the noun scientist within the Instrument and the three employment avenues that follow, serve to intentionally limit the category of people able to access the special residence requirement. Accordingly, the Tribunal finds that the applicant is not a scientist as contemplated by IMMI/13/056.
CONCLUSION
In conclusion, the Tribunal has found and for the stated reasons that as the term scientist is not defined in the Act, it should be given its ordinary meaning in the context intended by the legislation and the relevant Instrument.
For the stated reasons, the Tribunal finds that the applicant does not meet the requirements of subsection 22B(1)(a) of the Act. In light of that finding, the Tribunal does not need to consider whether the applicant is undertaking research and development of benefit to Australia.
There is no evidence before the Tribunal suggesting that the applicant meets other residence requirements.
DECISION
For those reasons, the Tribunal affirms the delegate’s decision to refuse the application for Australian citizenship.
I certify that the preceding 34 (thirty-four) paragraphs are a true copy of the reasons for the decision herein of Senior Member Antoinette Younes
............................[sgd]............................
Associate
Dated: 22 November 2018
Date(s) of hearing: 13 September 2018 and 6 November 2018 Applicant: In person Solicitors for the Respondent: Mr A Keevers, Sparke Helmore Lawyers
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