F (name redacted) and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Citizenship) [2020] AATA 2792 (7 August 2020)
1. Mr. F is a citizen of Croatia who has applied for Australian citizenship by conferral in accordance with the Australian Citizenship Act 2007 (Cth) (the Act). He is also the Head Coach of the Australian Men’s Water Polo Team.
2. Since March 2013 Mr. F has been employed by Water Polo Australia as the Head Coach of the Australian Men’s Water Polo Team. His present contract expires in September 2021. Since he commenced in his present role his contract has been renewed in consideration of the success he has achieved, mostly with amateur players, and his ability to assist players in obtaining overseas contracts to develop their skills.
3. During the past seven years Mr. F has coached the Australian team at the 2016 Olympic Games, World League, World Championships, World Cup and national events. Under his coaching, the Australian players have received international recognition and the sport has been promoted nationally.
4. By reason of his absences from Australia during the four years before he applied, Mr. F does not meet the general residence requirement to be eligible for a grant of citizenship. This raises the question of whether Mr. F meets the special residence requirement in section 22A of the Act relating to persons engaging in activities that are of benefit to Australia.
5. On 3 May 2019, a delegate of the Minister decided that Mr. F did not meet the special residence requirement and refused his application (the reviewable decision). Mr. F has applied to the Tribunal to review the reviewable decision.
What is the General Residence Requirement (s22 of the Australian Citizenship Act 2007)?
At the time you apply you must have been:
living in Australia on a valid visa for the past 4 years
a permanent resident or eligible New Zealand citizen for the past 12 months away from Australia for no more than 12 months in total in the past 4 years, including no more than 90 days in total in the past 12 months
What is Special Residence Requirement (s22A or s22B of the Australian Citizenship Act 2007)?
Subsection 22A(1) provides:
(1) Subject to this section, for the purposes of section 21 a person (the applicant) satisfies the special residence requirement if:
(a) the following apply:
(i) the applicant is seeking to engage in an activity specified under subsection 22C(1);
(ii) the applicant’s engagement in that activity would be of benefit to Australia;
(iii) the applicant needs to be an Australian citizen in order to engage in that activity;
(iv) in order for the applicant to engage in that activity, there is insufficient time for the applicant to satisfy the general residence requirement (see section 22); and
(b) the head of an organisation specified under subsection 22C(2), or a person whom the Minister is satisfied holds a senior position in that organisation, has given the Minister a notice in writing stating that the Applicant has a reasonable prospect of being engaged in that activity; and
(c) the applicant was present in Australia for a total of at least 180 days during the period of 2 years immediately before the day the applicant made the application; and
(d) the applicant was present in Australia for a total of at least 90 days during the period of 12 months immediately before the day the applicant made the application; and
(e) the applicant was ordinarily resident in Australia throughout the period of 2 years immediately before the day the applicant made the application; and
(f) the applicant was a permanent resident for the period of 2 years immediately before the day the applicant made the application; and
(g) the applicant was not present in Australia as an unlawful non-citizen at any time during the period of 2 years immediately before the day the applicant made the application.
Is Mr Fatovic seeking to engage in an activity specified under subsection 22C(1)?
6. Mr Fatovic is seeking to engage in the position of Head Coach of the Australian Men’s Water Polo team at the 2021 Olympic Summer Games.
7. The Minister is contended that in his role as Head Coach Mr Fatovic would not be engaged in participation in the Australian team when it competes in the 2021 Summer Olympics.
8. The Tribunal member did not accept the Minister’s contention that there is no justification for such a narrow interpretation. The activity referred to by Mr Fatovic when describing his role of Head Coach when the team is competing is action forming part of the team. Had Parliament intended to restrict the application of the section in the manner proposed by the Minister it would have said so by referring to athletes seeking to compete in the Games.
Does Mr. F need to be an Australian citizen to engage in the activity?
9. The Minister argues that Mr. F does not need to be an Australian citizen to engage in the activity to participate in the Australian team in the Olympics and the qualifying events.
10. The Minister contends, therefore, that it is not the case that the applicant 'needs' to be an Australian citizen to participate in the Olympic Summer Games (or in qualifying events for the Games) in the role of coach of the Australian men's water polo team. Hence, the applicant does not satisfy the requirements of s.22A(1)(a)(iii), and does not satisfy the special residence requirement at s.22A.
11. Referring to the definition of need in the Macquarie Dictionary, the Minister contended that “there is an element of ‘requirement’ that must exist between engagement in a relevant activity and the Applicant being an Australian citizen.”
12. The Macquarie Dictionary defines the noun need to include “a case or instance in which some necessity or want exists”
13. Mr. F has established that he needs Australian citizenship in order to engage in the activity of coaching the team at the 2021 Summer Olympics as:
a. it will assist him in bonding with the team and thereby improving its chances of success;
b. it will assist overall team morale;
c. it will reduce the risk of his being subject to different travel restrictions to other team members when travelling internationally;
d. by assisting in the ways referred to, it will enable him to meet the expectations of his employer as outlined in the copy correspondence
14. The Tribunal member does not apply the Citizenship Policy in reaching his conclusion on this issue. Government policy cannot amend an Act of Parliament. By providing that an applicant must be “required” to have Australian citizenship for subparagraph 22A(1)(a)(iii) to apply, it seeks to change the words “needs to” used by Parliament to the words “is required to”. This policymaker cannot do.
Conclusion
15. For the reasons set out above the Tribunal is satisfied that Mr. F meets the requirements of subparagraphs 22A(1)(a)(i), (ii) and (iii) of the Act.
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