Carr and Minister for Immigration and Border Protection (Citizenship)

[2017] AATA 1361

Carr and Minister for Immigration and Border Protection (Citizenship) [2017] AATA 1361 (25 August 2017)

Division:General Division

2016/5430File Number:           

Re:CARR, Catherine  

APPLICANT

Minister for Immigration and Border ProtectionAnd  

RESPONDENT

DECISION

Tribunal:Dr Gordon Hughes, Member 

Date:25 August 2017

Place:Melbourne

The Tribunal finds that the Applicant was not a permanent resident at the time she lodged her Application and accordingly the Tribunal has no jurisdiction to review the delegate's decision.

......................[sgd]..................................................

Dr Gordon Hughes, Member

Catchwords

CITIZENSHIP – Application for Australian citizenship – whether applicant was permanent resident at time of citizenship application and citizenship decision – Australian Citizenship Act – applicant did not meet permanent residency requirements of sections 21(2)(b) – applicant did not meet general residency requirements of section  22 – Tribunal has no jurisdiction to review decision in respect of a non-permanent resident

Legislation
Australian Citizenship Act 2007 sections 5, 21, 22, 24, 51, 52
Social Security Act 1991 sections 7(2E), 7(2F)

Secondary Materials
Australian Citizenship Instructions
Australian Citizenship (Permanent Resident Status) (IMMI 07/037), Schedule 1(1)

Citizenship Policy, chapter 7A

BACKGROUND

1. The Applicant in these proceedings, Ms Catherine Carr, seeks review of a decision made by a delegate of the Respondent to refuse her application for Australian citizenship.

2. The issue in contention is whether the Applicant satisfied the eligibility requirements for Australian citizenship set out in section 21 of the Australian Citizenship Act 2007 ("the Act"), that she was a permanent resident at the time of the citizenship application and citizenship decision.

   LEGISLATION

3. Section 5 of the Act, provides, relevantly:

   (1)  For the purposes of this Act, a person is a permanent resident at a particular time if and only if:

   (a)the person is present in Australia at that time and holds a permanent visa at that time; or

   (b)both:

   (i)     the person is not present in Australia at that time and holds a permanent visa at that time; and

   (ii)    the person has previously been present in Australia and held a permanent visa immediately before last leaving Australia; or

   (c)the person is covered by a determination in force under subsection (2) at that time.

   (2)  The Minister may, by legislative instrument, determine that:

   (a)persons who hold a special category visa or a special purpose visa; or

   (b)persons who have held a special category visa; or

   (c)persons who are present in Norfolk Island or the Territory of Cocos (Keeling) Islands;

   and who satisfy specified requirements are, or are during a specified period, persons to whom this subsection applies.

4. Section 21(1) of the Act provides:

   A person may make an application to the Minister to become an Australian citizen.

5. Section 21(2) of the Act provides, relevantly:

   A person is eligible to become an Australian citizen if the Minister is satisfied that the person:

   (a)is aged 18 or over at the time the person made the application; and

   (b)is a permanent resident:

   (i)     at the time the person made the application; and

   (ii)    at the time of the Minister's decision on the application; and

   (c)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

   …

6. Section 22(1) provides:

   Subject to this section, for the purposes of section 21 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 4 year period; and

   (c)the person was present in Australia as a permanent resident for the period of 12 months immediately before the day the person made the application.

7. Section 24 of the Act provides, relevantly:

   (1)If a person makes an application under section 21, the Minister must, by writing, approve or refuse to approve the person becoming an Australian citizen.

   Note:    The Minister may cancel an approval: see section 25.

   (1A)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).

8. Section 52(2) of the Act provides:

   [I]f:

   (a)the Minister makes a decision under section 24 to refuse to approve a person becoming an Australian citizen; and

   (b)the Minister'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 the application to become an Australian citizen;

   a person (the applicant ) cannot apply for review of that decision unless the applicant is a permanent resident.

9. Section 7(2E) of the Social Security Act 1991(“Social Security Act”) provides:

   A person who is residing in Australia and is in Australia may apply to the Secretary for a determination under this subsection stating that:

   (a)the person was residing in Australia on 26 February 2001, but was temporarily absent from Australia on that day; or

   (b)the person commenced, or recommenced, residing in Australia during the period of 3 months beginning on 26 February 2001.

10. Section 7(2F) of the Social Security Act provides:

    If a person makes an application under subsection (2E), the Secretary must make the determination if:

    (a)the Secretary is satisfied that paragraph (2E)(a) or (2E)(b) applies to the person; and

    (b)the application was made within whichever of the following periods is applicable:

    ...

    (i)     if paragraph (2E)(a) applies to the person--the period of 12 months beginning on 26 February 2001;

    (ii)    if paragraph (2E)(b) applies to the person--the period of 3 years beginning on 26 February 2001.

    the Secretary must give a copy of the determination to the person.

    DISCUSSION

11. The application for review was made in accordance with section 52(1)(b) of the Act which allows applications to be made to the Tribunal for review of a decision made under section 24 of the Act. Section 52(2) provides, however, that an applicant cannot apply for review of a decision to the Administrative Appeals Tribunal unless the applicant is a permanent resident.

12. The Applicant, a citizen of New Zealand, first entered Australia on 25 February 1996 as the holder of a temporary special category (sub clause 444) Visa ("SCV"). She subsequently spent various periods outside Australia, itemised by the Respondent as follows:

    ·Applicant departed Australia on 21 June 1995.

    ·Applicant arrived in Australia on 2 July 1995.

    ·Applicant departed Australia on 7 December 1998.

    ·Applicant arrived in Australia on 28 December 1998.

    ·Applicant departed Australia on 1 May 1999.

    ·Applicant arrived in Australia on 30 May 2001.

    ·Applicant departed Australia on 7 January 2008.

    ·Applicant arrived in Australia on 20 January 2008.

    ·Applicant departed Australia on 17 July 2014.

    ·Applicant arrived in Australia on 6 August 2014.

    ·Applicant departed Australia on 22 August 2014.

    ·Applicant last arrived in Australia on 1 September 2014.

13. Upon arrival on each occasion, the Applicant was granted a new SCV. She currently holds a SCV which was issued upon arrival on 1 September 2014.

14. The Applicant applied for Australian citizenship on 6 July 2016, and the decision of the delegate to refuse the application was made on 28 September 2016. The delegate's decision was made on the grounds that the Applicant did not satisfy the permanent residency requirement in section 21(2)(b) of the Act, and did not satisfy the general residency requirement in section 22(1)(c) of the Act.

15. The Tribunal must therefore determine whether the Applicant met the permanent residency requirement in section 21(2)(b) of the Act and whether she met the general residency requirements in section 22 of the Act.

16. The Respondent contended that the Applicant was not a permanent resident within the meaning of the Act and therefore does not meet the eligibility requirements to become an Australian citizen.

17. Pursuant to section 24(1)A, the Minister must not approve an application for citizenship pursuant to section 21(1) unless the person is eligible to become an Australian citizen under section 21(2),(3),(4),(5),(6),(7) or (8) of the Act. Section 52(2) provides that if the Minister refuses an application under section 24, the Applicant cannot apply to the Tribunal for a review of that decision unless that Applicant is a permanent resident.

18. Section 5 of the Act defines "permanent resident", and section 5(2) provides that the Minister may by legislative instrument determine that persons holding a SCV and who satisfy specified requirements are permanent residents.

19. Relevantly for the purposes of this application, legislative instrument IMMI 07/037 – Australian Citizenship (Permanent Resident Status) Schedule 1(1) ("the legislative instrument") - provides that a New Zealand citizen is determined to be a permanent resident if he or she:

    (a)was outside Australia on 26 February 2001 as the holder of a special category visa; or,

    (b)was outside Australia on 26 February 2001 but was in Australia as the holder of a SCV for a period of, or periods that total, not less than one year in the two years immediately before that date; or,

    (c)has a certificate, issued under the Social Security Act 1991, that states that the citizen was, for the purposes of that Act, residing in Australia on a particular date, regardless of the date certified or when the certificate is issued.

20. The certificates mentioned in the legislative instrument are issued pursuant to sections 7(2E) and 7(2F) of the Social Security Act 1991 (Cth), reproduced above.

21. Relevant to the general residence requirement, section 21(2)(c) provides that the person must satisfy the requirements of section 22, set out above.

22. Guidance on the application of the residence requirement is contained in chapter 7A of the Citizenship Policy, and further guidance is provided by the Australian Citizenship Instructions dated 1 July 2014. The Citizenship Policy specifies that New Zealand citizens who hold a SCV are not considered permanent residents for Australian citizenship purposes, unless they satisfy the requirements of Schedule 1.1 of the Legislative Instrument.

23. The Respondent relied upon two broad grounds in support of its contention that the Applicant could not be considered a permanent resident within the meaning of the Act.

24. First, the Respondent contended that the Applicant did not meet the general eligibility requirements in section 21(2)(b) because she was not a permanent resident at the time of application or decision. Movement records confirm that she was not present in Australia on 26 February 2001 as the holder of a SCV and therefore did not satisfy schedule 1(1)(a) of the Legislative Instrument. The Applicant was in Australia for a period of 65 days in the 2 year period prior to 26 February 2001, less than the required one year cumulative requirement, and therefore does not satisfy schedule 1(1)(b) of the Legislative Instrument. The Respondent further contended that the Applicant would have had the option to obtain a certificate under section 7(2E) of the Social Security Act but was now precluded because she was out of time.

25. Secondly, the Respondent contended that the Applicant did not satisfy the general residence requirement in sections 21(2)(c) and 22 of the Act because she was not a permanent resident, within the definition contained in section 5(2) of the Act, for a period of 12 months immediately before the date of her application.

26. The Tribunal accepts the Respondent's submissions in this regard.  The relevant considerations are factual and not contentious.  The Respondent's contentions were not seriously challenged by the Applicant at the hearing.  Apart from reiterating that her most recent visit to New Zealand was for a funeral in August 2014, she essentially left it to the Tribunal to rule on the Respondent's submissions.

    DECISION

27. For the reasons set out above, the Tribunal concludes that the Applicant was not a permanent resident at the time she lodged her Application for review. Accordingly the Tribunal does not have jurisdiction to review the delegate's decision pursuant to section 52 of the Act.

I certify that the preceding 27 (twenty-seven) paragraphs are a true copy of the reasons for the decision herein of Dr Gordon Hughes, Member

.........................[sgd]...............................................

Associate

Dated: 25 August 2017

Date(s) of hearing:	27 April 2017
Applicant:	In person
Advocate for the Respondent:	Ashley Allan
Solicitors for the Respondent:	SPARKE HELMORE