Abdillahi and Minister for Home Affairs (Citizenship) - [2019] AATA 205

Abdillahi and Minister for Home Affairs (Citizenship) [2019] AATA 205 (15 January 2019)

Administrative Appeals Tribunal
ADMINISTRATIVE APPEALS TRIBUNAL )
)No: 2018/5809

General Division )

Re: Ahmed Yusuf Abdillahi
Applicant

And: Minister for Home Affairs
Respondent
CORRIGENDUM TO DECISION
TRIBUNAL:  Senior Member D. J. Morris
DATE OF CORRIGENDUM: 25 February 2019
PLACE:           Melbourne
The Tribunal directs the Registrar, pursuant to subsection 43AA(1) of the Administrative Appeals Tribunal Act 1975, to alter the text of its written reasons for decision dated
21 February 2019 as follows:
Substitute the words ‘section 41A(4)’ with ‘section 42A(4)’.
........[sgd]...............................................
Senior Member
Division:GENERAL DIVISION
File Number:          2018/5809
Re:Ahmed Yusuf Abdillahi
APPLICANT

AndMinister for Home Affairs
RESPONDENT

Decision
Tribunal:Senior Member D. J. Morris

Date:15 January 2019
Date of written reasons: 21 February 2019
Place:Melbourne

The application is dismissed under section 41A(4) of the Administrative Appeals Tribunal Act 1975 because the Tribunal is satisfied that the decision is not reviewable.
.................[sgd].......................................................
Senior Member D. J. Morris
Catchwords
PRACTICE AND PROCEDURE – application for Australian citizenship - jurisdiction of the Tribunal – jurisdiction not inherent – applicant is holder of temporary visa – citizenship applicants must be permanent residents – enactment specifically precludes application for review – Tribunal dismisses application for want of jurisdiction – oral decision given – written reasons requested
Legislation
Administrative Appeals Tribunal Act 1975 (Cth), ss 3, 25, 37, 42A, 43
Australian Citizenship Act 2007 (Cth), ss 5, 22, 52
Migration Act 1958 (Cth), s 32
Social Security Act 1991 (Cth), s 7
Migration Regulations 1994, Sch 2, clause 444.511
Cases
Negri v Secretary, Department of Social Services (2016) 70 AAR 103
Secondary materials
Australian Citizenship Act 2007 – Determination under section 5(2) – Australian Citizenship (Permanent Resident Status) – IMMI 17/108 (dated 1 October 2017)
REASONS FOR DECISION
Senior Member D. J. Morris
21 February 2019

Mr Ahmed Yusuf Abdillahi is a citizen of New Zealand. He applied for Australian citizenship on 24 January 2018. He is currently the holder of a Class TY Subclass 444 Special Category (Temporary) visa, granted to him on 25 January 2017. On

21 September 2018 a delegate of the Minister for Home Affairs (the Minister) wrote to

Mr Abdillahi and advised him that his application for citizenship had been refused because the delegate had assessed him as not meeting the general residence requirement in section 22(1)(c) of the Australian Citizenship Act 2007 (the Citizenship Act) which requires that the person was present in Australian as a permanent resident for the period of 12 months immediately before the day the person made the application.
On 8 October 2018 Mr Abdillahi lodged an application for review, dated 2 October 2018, asking that the Tribunal review the delegate’s decision to refuse him Australian citizenship.
The Respondent sought an interlocutory hearing to make submissions to the Tribunal on the question of the Tribunal’s jurisdiction to consider Mr Abdillahi’s application for review.
The interlocutory hearing was held on 15 January 2019. Mr Abdillahi participated and the Respondent was represented by Ms Shauna Roeger of the Australian Government Solicitor. Both parties made submissions to the Tribunal. The Respondent tendered a volume of documents lodged under section 37 of the Administrative Appeals Tribunal Act 1975 (the AAT Act), (T-documents) and a bundle of supplementary documents (ST-documents) which were taken into evidence. The Respondent also submitted a Statement of Facts, Issues and Contentions dated 14 December 2018.
At the conclusion of the hearing, the Tribunal dismissed the application under section 42A(4) of the AAT Act because it was satisfied that the decision is not reviewable by the Tribunal. The Tribunal gave oral reasons for its decision under section 43(2) of the AAT Act and after the hearing the Applicant lodged a request for written reasons in accordance with section 43(2A) of the AAT Act. The Tribunal therefore provides reasons in writing for the decision which, in accordance with section 43(2B) of the AAT Act, include findings on material questions of fact and a reference to the evidence or other material on which those findings were based.
Consistent with the Federal Court decision in Negri v Secretary, Department of Social Services (2016) 70 AAR 103, these written reasons are consistent with the oral decision given and do not contain altered or new reasoning, but it is hoped that they explain in a fuller way the reasons why the Tribunal decided it could not consider Mr Abdillahi’s application for review.
The Applicant’s migration background
Mr Abdillahi was born in Somalia and was a citizen of that country from his birth until 2001. He acquired New Zealand citizenship on 14 September 2004. He first arrived in Australia on 6 November 2004, using a New Zealand passport. As such, he was automatically granted a temporary Special Category visa (class 444), which is a visa granted to New Zealand citizens.
On 29 December 2011 Mr Abdillahi was granted a Permanent Spouse visa (Subclass 801). This permanent visa had a 5 year travel facility which means that it was valid for multiple re-entries to Australia for a period of 5 years from the date of grant, in this case until 29 December 2016.
The delegate of the Minister states that Mr Abdillahi departed Australia on 8 December 2016 and Mr Abdillahi advises (T7, p 166) in his application for citizenship lodged with the Department of Home Affairs (the Department) that he arrived in Dubai, the United Arab Emirates, on 9 December 2016. He travelled first to Somalia to visit family there, and then to Dubai for a holiday, before returning to Australia on 25 January 2017.
Because Mr Abdillahi was not present in Australia on 29 December 2016, his permanent spouse visa ceased by operation of law. However, because he is a citizen of New Zealand, on his re-entry to Australia, Mr Abdillahi was automatically granted a fresh temporary Special Category visa (subclass 444). The ST-documents, at pages 194 to 201 show a screenshot from the Department of Home Affairs (the Department) computer system recording Mr Abdillahi’s visa history.
The application for Australian citizenship
On 24 January 2018 Mr Abdillahi applied for Australian citizenship. The delegate of the Minister who considered the application was satisfied that Mr Abdillahi met a number of the requirements of the Citizenship Act in relation to identity, time in Australia and not being an unlawful non-citizen in Australia for the previous four years.
However, the delegate found that Mr Abdillahi did not satisfy the requirement of being a permanent resident for the period of 12 months before applying for citizenship. This is because Mr Abdillahi’s status as a permanent resident, that is holding a permanent visa, ceased by operation of law on 29 December 2016 because he was not in Australia on that date and his Permanent Spouse visa expired.
The Special Category visa (subclass 444) is a temporary visa permitting the holder to remain in Australia while the holder is a New Zealand citizen (see cl. 444.511 of Schedule 2 of the Migration Regulations 1994). A subclass 444 visa is not a permanent visa. In certain special circumstances if a New Zealand citizen was in Australia on

26 February 2001 on a subclass 444, visa or had been in Australia for periods totalling 12 months in the two years prior to 26 February 2001, the person may be regarded as fulfilling the general residence requirements under the Citizenship Act. These special circumstances are set out in section 7 of the Social Security Act 1991 (Cth) and in a Determination made by the Minister which took effect on 25 September 2017 (IMMI 17/108). However, these specific exceptions unfortunately provide no relief for

Mr Abdillahi, because he entered Australia for the first time in November 2004 (ST p 195).
The powers of the Tribunal
This Tribunal does not have an inherent review power. The power to review certain government decisions must be conferred by an enactment (see sections 3, 25 and 43(1) of the AAT Act). In this case the relevant enactment is the Citizenship Act.
The Citizenship Act explicitly sets out at section 52 that where a person is seeking review of a decision relating to citizenship by conferral, the applicant for review must be a permanent resident, meaning under section 5(1) of the Citizenship Act, that the person holds a permanent visa:
Section 52
(1)An application may be made to the Administrative Appeals Tribunal for review of the following decisions
.....
(b) a decision under section 24 to refuse to approve a person becoming an Australian citizen
….
Citizenship by conferral decision
(2)However, if
(a) the Minister makes a decision under section 24 to refuse to approve a person becoming an Australian citizen; and
(b) the Minster’s reasons for the decision did not refer to the eligibility ground in subsection 21(8)(about statelessness); and
(c) the person was aged 18 or over at the time the person made representation to become an Australian citizen;
a person (the applicant) cannot apply for review of that decision unless the applicant is a permanent resident.
Section 5 of the Citizenship Act states that, for the purposes of that Act, a person is a ‘permanent resident’ at a particular time if, and only if (relevantly in Mr Abdillahi’s case), the person is present in Australia at that time and holds a permanent visa at that time.
The Tribunal found that Mr Abdillahi was not a permanent resident on 8 October 2018, the date he lodged his application for review. He was at that time the holder of a Special Category visa (subclass 444). A subclass 444 visa is a temporary visa by force of

section 32(1) of the Migration Act 1958 and Schedule 2 of the Migration Regulations 1994.
Therefore, because Mr Abdillahi was not a permanent resident when he lodged his application for review, the Tribunal does not have jurisdiction to consider the Department’s decision to refuse his application for citizenship. As set out above, the Citizenship Act explicitly precludes a person who is not a permanent resident from seeking review of a decision relating to refusal of Australian Citizenship by conferral in the Tribunal.
However, for the purposes of explanation, even if the Tribunal were to have such jurisdiction, the facts of the matter are that Mr Abdillahi was not the holder of a permanent visa when he made his application to the Department for Australian citizenship by conferral in January 2018. The Tribunal was satisfied that the limited discretions that apply in the Citizenship Act, and by force of the ministerial instrument made on 25 September 2017 by the Minister, are not applicable to Mr Abdillahi’s circumstances.
It therefore follows that, even if the Tribunal did have the power to review the delegate’s decision, Mr Abdillahi did not satisfy the general residence requirements. The Tribunal would find that there are no reasonable prospects of success because his permanent visa ceased in December 2016 when he was, on his own evidence, in the United Arab Emirates and absent from Australia.
The Tribunal is not unsympathetic to Mr Abdillahi’s situation. It would appear that he overlooked the fact that his being absent from Australia on the fifth anniversary of the grant of his Permanent Spouse visa meant that visa ceased. The import of this was perhaps not apparent to the Applicant because when he re-entered Australia at the conclusion of his holiday, as a New Zealand citizen he obtained a subclass 444 visa which is granted electronically, in this case at the airport immigration post.
It may be reasonably concluded that Mr Abdillahi did not fully appreciate that his migration status had consequently changed. He moved from being a person holding a permanent visa, which provides a pathway to Australian citizenship, to being a person holding a temporary visa, which does not.
A solution for Mr Abdillahi is to apply for a permanent visa. While this is not a matter for this consideration, it would seem that the particular circumstances that apply to him may warrant the discretion being exercised to reinstate his Subclass 801 Permanent Spouse visa: that, however, is a matter he should take up personally with the Department.
Once he has a permanent visa, Mr Abdillahi may then test his eligibility for Australian citizenship by making a fresh application which satisfies section 22(1)(c) of the Citizenship Act, once he has held that permanent visa for a period of at least 12 months immediately prior to applying for citizenship. He would naturally also have to satisfy the other requirements of the Citizenship Act at the time of any fresh application.
The decision of the Tribunal is that, as the Applicant does not have the right of review because he was not a permanent resident at the time of his application for review within the meaning of section 52(2) of the Citizenship Act, the application is dismissed for want of jurisdiction.
DECISION
The application is dismissed under section 41A(4) of the Administrative Appeals Tribunal Act 1975 because the Tribunal is satisfied that the decision is not reviewable.

I certify that the preceding 26 (twenty-six) paragraphs are a true copy of the reasons for the decision herein of Senior Member D. J. Morris

............[sgd]............................................................
Associate
Dated: 21 February 2019

Date(s) of hearing: 15 January 2019

Applicant: In person

Advocate for the Respondent: Ms Shauna Roeger

Solicitors for the Respondent: Australian Government Solicitor

Date(s) of hearing:	15 January 2019
Applicant:	In person
Advocate for the Respondent:	Ms Shauna Roeger
Solicitors for the Respondent:	Australian Government Solicitor