Tribunal: Senior Member Andrew Nikolic AM CSC

The applicant’s Australian Citizenship application was refused by a delegate of the Minister for Immigration and Border Protection. On 18 January 2018, the Administrative Appeals Tribunal affirmed the decision under review.

Section 21(2) of the Australian Citizenship Act 2007 (the Act) requires that to be eligible for conferral of Australian citizenship, a person must satisfy eight requirements. This matter concerns the residence requirement at section 21(2)(c) of the Act.[1]

The applicant was unable to satisfy the general residence requirement due to extended absences overseas. He therefore relied upon section 22B(1)(a) of the Act, which enables  satisfaction of a ‘special residence requirement’ if a person is engaged in a kind of work specified under section 22C(3) and regularly travels outside of Australia because of that work. Section 22C(3) allows the Minister to specify, by legislative instrument, certain kinds of work within this category. Schedule C of the Ministerial Instrument relevant to this matter provides for: ‘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.’

The applicant had attained a PhD in his field of specialty and was employed by an Australian university. The key issue for determination was whether he is a ‘Scientist’ undertaking research and development of benefit to Australia.

The applicant submitted that he is a ‘Scientist’ within the meaning of the Act. He contended that the term should not be narrowly construed, and if the Ministerial Instrument had intended to limit the provision to natural and physical science, it would have done so more specifically.

In coming to its decision, the Tribunal noted the dictionary definitions relied upon by the parties, but considered it was more important to reflect on the intent and context of the Act. The Tribunal relied on principles necessary to the accurate reading of legislation, outlined by former Justice of the High Court of Australia, Michael Kirby.[2] This broadly required an examination of the sentence, often the paragraph, and preferably the immediately surrounding provisions (if not a wider review of the entire statutory context) to identify the meaning of the words in the context in which they are used. Also, Section 15AA of the Acts Interpretation Act 1901 provides that in interpreting a provision of an Act, the interpretation that would best achieve the purpose or object of the Act is to be preferred.

The Tribunal noted 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 limiting effect of the provision is apparent from the Minister’s speech when introducing the relevant bill in 2009 and in the use of the proper noun ‘Scientist’ within the Ministerial Instrument.  Moreover, the context of the surrounding words did not assist the applicant’s contention that the special residence requirement can be relied upon by a broader category of PhD-qualified academics.

The Tribunal held that the special residence requirement is only of assistance to Scientists within the common meaning of that term, who are undertaking work specified in the Ministerial Instrument. The applicant’s background and current role relate to teaching and research in his field of specialty, which is law.  This is not a kind of work that satisfies the special residence requirement.

Given that the applicant is not a Scientist within the meaning of the Act, it was not necessary to determine whether he was undertaking research and development of benefit to Australia. For completeness, however, the Tribunal held that it does not follow that any research or development undertaken at an Australian university is of benefit to Australia. While the research authored or co-authored by the applicant may generally contribute within his field of expertise, the evidence did not support a finding that it is ‘of benefit to Australia’ within the meaning of the Act or Instrument.

Read the full written decision on Austlii.

 

[1] Found in section 22(1)(a) of the Act, the applicant must have been present in Australia for the period of 4 years immediately before the day the application was made.

[2] The Hon. Michael Kirby, ‘Statutory Interpretation: The Meaning of Meaning’ [2011] MelbULawRw 3; (2011) 35(1) Melbourne University Law Review 113, 116.