Von Horsten and Minister for Home Affairs (Citizenship)
[2019] AATA 3610
•16 August 2019
Von Horsten and Minister for Home Affairs (Citizenship) [2019] AATA 3610 (16 August 2019)
Division: General Division
File Number(s): 2018/6596
Re:Grant Von Horsten
APPLICANT
AndMinister for Home Affairs
RESPONDENT
DECISION
Tribunal:Dr N A Manetta, Senior Member
Date of oral reasons: 16 August 2019
Date of written reasons: 13 September 2019
Place:Adelaide
For the reasons given orally at the conclusion of the hearing of this matter, the Tribunal:
1.Sets aside the decision under review and substitutes a decision that the applicant satisfied s 22B(1)(a) and (b) of the Australian Citizenship Act 2007 (Cth) at the time of his citizenship application; and
2.Remits the matter to the respondent for further consideration of the remainder of sections 22B and 21 of the Act in connection with the applicant’s application.
..................................[sgnd].............................
Dr N A Manetta
Senior Member
CITIZENSHIP – special residence requirements – s 22B(1)(a) – s 22B(1)(b) – whether applicant’s employment required regular travel outside Australia – meaning of “required to regularly travel outside Australia because of that work” – where applicant’s contract of employment obliged him to travel regularly outside of Australia – where applicant regularly travelled outside of Australia for part of the four years preceding application for citizenship – decision under review set aside and decision substituted that applicant satisfied ss 22B(1)(a) and 22B(1)(b) – remitted to respondent for consideration of remaining criteria.
Legislation
Act's Interpretation Act 1901Australian Citizenship Act 2007
Cases
Hudson v Minister for Immigration and Citizenship (2010) 272 ALR 605
Nilant v Macchia (2000) 178 ALR 371
Secondary Materials
D C Pearce and R S Geddes, Statutory Interpretation in Australia (LexisNexis Butterworths) 8th ed, 2014
REASONS FOR DECISION
Dr N A Manetta, Senior Member
At the conclusion of the hearing of this matter, I delivered my decision and gave oral reasons. The Respondent requested a statement in writing of my reasons under s 43(2A) of the Administrative Appeals Tribunal Act, 1975.
I have reviewed the transcript of my oral reasons asnd made minor amendments to it. I formally adopt the transcript as amended as a written statement of my reasons in answer to the Respondent’s request. I attach a copy of the transcript as amended.
I certify that the following thirty-one (31) paragraphs are a true copy of the reasons for the decision herein of Dr N A Manetta, Senior Member. ..................[sgnd]......................
Legal and Administrative Assistant
Date of hearing: 2 July 2019
Applicant: In person Respondent’s Representative: Ms N. Rostron, Australian Government Solicitor ORAL DECISION OF SENIOR MEMBER N A MANETTA
SENIOR MEMBER: This is an application by Mr Grant Von Horsten seeking a review of a decision of a delegate of the respondent, the Minister for Home Affairs.
The delegate refused Mr Von Horsten's application for citizenship. His application for citizenship was rejected because it was decided that Mr Von Horsten did not satisfy either the “general residence requirement” or the “special residence requirement”, which are referred to in section 21(2), paragraph (c) of the Australian Citizenship Act 2007. Mr Von Horsten accepts that he does not meet the general residence requirement but submits that he did satisfy the special residence requirement.
The sole issue before me is whether Mr Von Horsten satisfied the special residence requirement, which is set out in section 22B, at the time he lodged his application. I must decide that matter by reaching the correct or preferable decision on the basis of the evidence adduced before me. I need not find any error in the decision of the respondent's delegate. At the hearing before me Mr Von Horsten represented himself; Ms Rostron appeared for the Respondent.
In my opinion, Mr Von Horsten did meet paragraphs (a) and (b) of subsection (1) of section 22B of the Act. Paragraphs (c) to (g) of that subsection were not addressed in the evidence before me.
I now set out certain background facts and the reasons for the conclusion I have just stated that paragraphs (a) and (b) of subsection 22B(1) were satisfied.
Mr Von Horsten gave evidence before me. He was born in Zimbabwe in July 1977. He grew up in South Africa and completed his schooling there. He married in 2000 in South Africa. He has two children, born in 2004 and 2005.
Mr Von Horsten's professional vocation involves the supervision of mining operations. He obtained tertiary qualifications in South Africa in his area of expertise. Mr Von Horsten wished to return to Australia after his first trip here in 2003 and did so in 2008 where he worked in Western Australia for the Australian subsidiary of a Canadian company, Barrick Gold. He was the company's principal reliability engineer. He was living in Perth at that time. The position, which he held for some three years, involved travel outside Australia. As I understood his evidence, Mr Von Horsten visited mines in Papua New Guinea and North and South America.
In 2011 Mr Von Horsten joined Newcrest Australia and regularly flew to Papua New Guinea. In early 2015 Mr Von Horsten joined Iluka, a company which mined mineral sands, zircon and rutile. He was based in their Perth office. He travelled in Australia, but not overseas. He finished up with Iluka in July 2017 and joined a company called DMSA. Until the end of 2017, Mr Von Horsten travelled in and out of Madagascar where DMSA operated a nickel mine.
From 3 January 2018 until September/October 2018, Mr Von Horsten and his family lived in Madagascar. He left DMSA in November of 2018 to join Nyrstar, which operates a smelter in Port Pirie. He is engaged there as a maintenance manager, engineering manager, and project manager. He continues at the present time to work for this company in Port Pirie.
Mr Von Horsten is a citizen of South Africa. He wishes to become an Australian citizen. He filed his application for Australian citizenship on 22 April 2017. His application was declined because it held he did not specified residence requirements.
Before turning to those requirements as set out in the Act, I should give more explicit detail concerning Mr Von Horsten's movements outside Australia. Going back four years from 22 April 2017 (when Mr Von Horsten filed his application), Mr Von Horsten was employed by Newcrest. From April 2013 to April 2014 he travelled eight times out of Australia. From April 2014 to February 2015 he travelled three times out of Australia. He began work with Iluka in February 2015. From February 2015 to 22 April 2017 (the date of his citizenship application), Mr Von Horsten made no trips outside Australia that were work-related.
It was agreed by Ms Rostron that Mr Von Horsten was expected as part of his conditions of employment to travel frequently to Iluka operations both within and outside Australia. In a letter from a Mr Holben of Iluka (which was part of exhibit A1), Mr Holben indicates that frequent travel was expected, but did not eventuate due to “changes in the [company’s] business priorities and structure at the time”.
It is now convenient to consider the relevant legal requirements governing citizenship by conferral under section 22B. Section 22B(1)(a) and (b) provide as follows:
(1) Subject to this section for the purposes of section 21 a person satisfies the special residence requirement, if
(a)at the time person made the application the person is engaged in a 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 two years during the period of four years immediately before the day the person made the application;
(ii) for the whole or part of that four year period when the person was engaged in that kind of work, the person regularly travelled outside Australia because of that work; and
(c)… .
So far as paragraph (a) is concerned, Ms Rostron accepted that Mr Von Horsten's work was of a kind specified under subsection 22C(3) because Mr Von Horsten was engaged in work on a resources or sea installation. I refer to paragraph 1(c) of schedule C of the instrument signed by the Minister on 29 May 2013 (IMMI 13/056).
Ms Rostron submitted however, that Mr Von Horsten was not “required to regularly travel outside Australia” because he did not travel outside Australia for work while employed with Iluka. It will be recalled that Mr Von Horsten worked for Iluka from February 2015 to April 2017. Ms Rostron's submission in respect of paragraph (a) is that it is implicitly required by that paragraph that a person be engaged in regular travel outside Australia at the time of his or her application. Ms Rostron further submitted that paragraph (b) did not apply.
So far as paragraph (a) is concerned, I note that the wording of paragraph (a) is not: “the person is regularly required to travel outside Australia”. That form of drafting would support Ms Rostron's submission that I should look at the fact of travel. The adverb regularly would qualify required in such a case.
Rather paragraph (a), as it is drafted, specifies that the person should be “required to regularly travel” and the adverb regularly clearly qualifies the verb travel in this case. The text of paragraph (a) suggests to my mind that a person may satisfy paragraph (a) because he or she is under a legal obligation under an employment of contract to travel regularly outside Australia in connection with that work. Such a person may be said to be required by the contract “to regularly travel” outside Australia.
The evidence before me suggests that Mr Von Horsten was legally required under his contract of employment with Iluka to regularly travel outside Australia. I have referred to the relevant part of exhibit A1; and Ms Rostron very fairly did not suggest this was not the case. Mr Holben refers to occasions when Mr Von Horsten was expected to travel overseas as part of his work with Iluka. Indeed Mr Von Horsten instanced one occasion of a work trip, which was booked by Iluka, and which he took as a pleasure trip with his family when Iluka cancelled it shortly beforehand.
In my opinion, on the evidence before me, Mr Von Horsten was required by his contract of employment “to regularly travel outside Australia” but Iluka’s priorities changed and anticipated trips did not in the event come up. If I am correct in my reading of paragraph (a), paragraph (a) is satisfied in Mr Von Horsten's case.
Paragraph (b)(i) is satisfied because Mr Von Horsten was engaged in the relevant type of work for all of the four years before his application was made. Paragraph (b)(ii) provides that for the whole or part of the four-year period when the person was engaged in work of that kind, the person regularly travelled outside Australia because of that work.
Mr Von Horsten was engaged in “work of that kind” for the whole of the four-year period preceding the application for citizenship. Did Mr Von Horsten regularly travel outside Australia for the whole or part of the four-year period immediately preceding his application? It is certainly the case, in my opinion, that he regularly travelled outside Australia while he was with Newcrest and that is a significant part of the four year period, almost 50 per cent. One difficulty of interpretation that arises is whether it is necessary for a person to travel regularly outside Australia for the whole of the four-year period where that person was engaged in work of a kind specified under subsection 22C(3) for all of the preceding four years or whether on the other hand it is sufficient for the person to regularly travel for part only of that period.
This gives rise to a question of interpretation and paragraph (b)(ii) is ambiguous in this regard. In cases of ambiguity of this type I believe the Tribunal should approach the construction of this section in a way that promotes the purpose of the legislation: see section 15AA of the Acts Interpretation Act 1901.
Section 22B was intended to provide an exception in a specific context to the general residence requirement because the general residence requirement would be hard to satisfy. I would construe paragraph (b) to be applicable to a person in Mr Von Horsten's position. Provided it can be said that he regularly travelled outside Australia for a part of that four-year period, Mr Von Horsten does qualify under paragraph (b).
I am reinforced in this view by the overall context of the section. Paragraph (c) and (d), for example, provide for physical presence requirements in Australia of 480 days in the four-year period immediately preceding the application and 120 days in the 12 months immediately preceding the application. The intention in these paragraphs is to specify minimum physical presence requirements of approximately four months in the preceding 12 months and 16 months in the preceding four years for those engaged in particular kinds of work which require travel outside Australia and who actually do regularly travel outside Australia for the whole or part of the four-year period preceding the application.
Mr Von Horsten falls into this category. It cannot be said that he is seeking to avoid the requirements of the section or to avail himself of some loophole in the regulatory regime. In any event I am inclined to the view that for the whole of the four-year period Mr Von Horsten did regularly travel outside Australia. It does not matter that the trips all occurred in the first half of the four-year period. Taking the four-year period as a whole Mr Von Horsten travelled 11 times during that period and that qualifies in my opinion as regular travel over the entire period.
In my opinion also, although it is not necessary for me to decide, section 22(b)(1) paragraphs (a) and (b) should generally be given what is called a “beneficial construction” in accordance with the rules of interpretation that apply to what is called remedial or beneficial legislation. I note that in paragraph [9.2] at page 360 of the 8th edition of Pearce and Geddes Statutory Interpretation in Australia there is reference to the Federal Court decision of Hudson[1] and to paragraph [42] of that decision where the authors say that the Federal Court has held the Australian Citizenship Act is not beneficial legislation.
[1] Hudson v Minister for Immigration and Citizenship (2010) 272 ALR 605.
I am not sure that paragraph [42] of that decision does stand for that proposition but quite apart from that I note that it is clear that individual provisions within an Act that might not be described generally as beneficial can be beneficial in their own right and therefore interpreted as generously as the language of the section allows. That is acknowledged in Pearce and Geddes at pages 358 to 359 referring to, for example, the decision of his Honour Justice Weinberg in Nilant v Macchia.[2]
[2] Nilant v Macchia (2000) 178 ALR 371.
In my opinion, section 22B is clearly intended to be a provision that relaxes the general residence requirement because the latter was thought to operate unfairly in respect of those engaged in overseas work and because it was thought desirable to include a more generous provision in relation to specific types of workers.
I do believe section 22B should be given a beneficial construction in accordance with normal principles but I do not need to finally decide that question as it seems to me that a purposive construction leads to the same result.
It follows in my opinion that section 22B(1)(a) and (b) are satisfied and that I should substitute a finding to this effect. The Minister's delegate should now proceed to assess Mr Von Horsten's application by reference to the remaining paragraphs of section 22B(1) and to assess the application against section 21(2). I would remit the matter to the Respondent for his or her further consideration. An order will be drawn up accordingly.
Finally, I do wish to acknowledge Ms Rostron's very fair conduct of the hearing before me. She quite properly and helpfully kept the hearing to the essential issue and did not take unnecessary points. She conducted herself most commendably in accordance with the model litigant rules.
END OF ORAL DECISION
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