Clegg and Minister for Immigration and Multicultural and Indigenous Affairs
[2005] AATA 1247
•16 December 2005
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2005] AATA 1247
ADMINISTRATIVE APPEALS TRIBUNAL Nº V2005/194
GENERAL ADMINISTRATIVE DIVISION
Re: PHILLIP MICHAEL CLEGG
Applicant
And: MINISTER FOR IMMIGRATION AND
MULTICULTURAL AND INDIGENOUSAFFAIRS
Respondent
DECISION
Tribunal: G.D. Friedman, Senior Member
Date: 16 December 2005
Place: Melbourne
Decision:The Tribunal affirms the decision under review.
(sgd) G.D. Friedman
Senior Member
CITIZENSHIP ‑ application for Australian citizenship ‑ whether applicant is permanent resident - entry before 2 April 1984 - deeming provisions - army service
Australian Citizenship Act 1948 s 5A(1), 13(1)(a), 13(3)
Migration Act 1958 s 5, 9
REASONS FOR DECISION
16 December 2005 G.D. Friedman, Senior Member
1. This is an application by Phillip Michael Clegg (the applicant) for review of decision of a delegate of the Minister for Immigration and Multicultural and Indigenous Affairs (the respondent) dated 16 February 2005 to refuse to grant Australian citizenship to the applicant.
2. Under s 34J of the Administrative Appeals Tribunal Act1975 (the AAT Act) and with the consent of the parties, the Tribunal decided to review the decision by considering the documents or other material lodged with the Tribunal and without holding a hearing.
3. The Tribunal received into evidence the documents lodged under s 37 of the AAT Act (T1‑T16) plus two exhibits (Exhibits A1 and A2) lodged on behalf of the applicant.
BACKGROUND
4. The applicant was born in Port-of-Spain, Trinidad, on 6 November 1936 and lives in Sussex, United Kingdom. He entered Australia on 26 December 1955 and served in the Australian Army from 9 October 1957 to 30 June 1960, comprising National Service (9 October 1957 to 24 December 1957) and service in the Citizen Military Forces (CMF) (25 December 1957 to 30 June 1960).
5. In 1966 the applicant departed Australia and has not returned. On 27 October 2004 he lodged an application with the Department of Immigration and Multicultural and Indigenous Affairs (DIMIA) for the grant of Australian citizenship. On 16 February 2005 a delegate of the respondent refused the application on the grounds that the applicant was not a permanent resident under the Australian Citizenship Act 1948 (the Act).
6. On 7 March 2005 the applicant sought review by the Tribunal.
7. The issue before the Tribunal is whether the applicant is eligible for Australian citizenship by satisfying the criteria for permanent resident of Australia.
EVIDENCE
8. In a statutory declaration dated 10 September 2004 (T5, page 45) the applicant stated that he migrated to Australia with his family in 1955 and was required to undertake National Service in 1957. He said that after his discharge in 1960 he remained in Australia until 1966, when he travelled to Trinidad before settling in the United Kingdom. He stated that he wished to return to Australia but for a long period believed that he did not satisfy the criteria. The applicant stated that a friend told him that completion of National Service before a certain date would result in exemption from the residence requirements and would entitle him to Australian citizenship.
9. In a witness statement dated 4 October 2005 (Exhibit A1) the applicant stated that when his family arrived in Australia they received a promise of permanent residence. He said that he was under 21 years of age at the commencement of National Service, which demonstrated that he had been included in Australian records as a permanent resident from the time of his arrival.
CONSIDERATION OF THE ISSUES
10. Under s 13(1) of the Act:
(1) Subject to this section, the Minister may, in the Minister’s discretion, upon application in accordance with the approved form, grant a certificate of Australian citizenship to a person who satisfies the Minister that:
(a) the person is a permanent resident;
…
…
(d)the person has been present in Australia as a permanent resident for a period of, or for periods amounting in the aggregate to, not less than one year during the period of 2 years immediately preceding the date of the furnishing of the application;
(e)the person has been present in Australia as a permanent resident for a period of, or for periods amounting in the aggregate to, not less than 2 years during
the period of 5 years immediately preceding the date of the furnishing of the application;
…
(3)Paragraphs (1)(d) and (e) do not apply in relation to:
(a)a person who has completed not less than 3 months’ relevant defence service; or
(b)a person who has been discharged from relevant defence service, before completing 3 months of that service, as medically unfit for service or further service and who became medically unfit by reason of the person’s relevant defence service.
11. Under s 5A(1) of the Act certain persons are deemed to be permanent residents for the purposes of the Act:
5A Certain non-citizens to be permanent residents for the purposes of Act
(1) A person who is not an Australian citizen shall be taken to be, or to have been, a permanent resident for the purposes of this Act:
(a)in relation to a period before 2 April 1984 during which the person was present in Australia (other than a prescribed Territory), if:
(i)the person’s continued presence in Australia (other than a prescribed Territory) was not, during that period, subject to any limitation as to time imposed by law;
(ii) the person was not, during that period, a prohibited immigrant; and
(iii)the person was not, during that period, a person who, if an event of the kind referred to in paragraph 8(3)(a), (b), (c) or (d) of the Migration Act 1958 as in force from time to time during that period had occurred, would have become a prohibited immigrant by virtue of subsection 8(3) of that Act as so in force, or, in a case where he or she was such a person, he or she was, during that period, a person to whom a declaration in force under subsection (2) applies;
(b)in relation to a period on or after 2 April 1984 and before the prescribed date during which the person was present in Australia (other than a prescribed Territory), if:
(i)the person’s continued presence in Australia (other than a prescribed Territory) was not, during that period, subject to any limitation as to time imposed by law;
(ii) …
(iii) …
(ba)in relation to a period on or after the prescribed date and before 1 September 1994 during which the person was present in Australia (other than a prescribed Territory), if:
(i)the person’s continued presence in Australia (other than a prescribed Territory) was not during that period, subject to any limitation as to time imposed by law;
(ii) …
(iii) …
(bb) in relation to a period on or after 1 September 1994 if:
(i) the person was present in Australia and held a permanent visa; or
(ii) a declaration under subsection (2) applied to the person;
(c)in relation to a period during which the person was present in a prescribed Territory, if:
(i) …
(ii) …
(d)in relation to a period during which the person was not present in Australia, if the person was, during that period:
(i) the holder of, or deemed to be included in:
(A)a valid visa that is in a class of visas prescribed for the purposes of this sub-subparagraph or a return endorsement that was in force; or
(B)a document or endorsement in force under a law of a prescribed Territory, being a document or endorsement that, under the regulations, is to be treated as, or having been during a specified period, the equivalent of a visa referred to in sub-subparagraph (A) or a return endorsement during that period; or
(ii)a person included in a class of persons declared by the regulations to be, or to have been during a specified period, permanent residents for the purposes of this Act, being persons who have, or have had, an association with a prescribed Territory.
12. In his Statement of Facts and Contentions dated 2 June 2005 the applicant submitted that he arrived in Australia on a Permanent Entry Permit (PEP) and falls within the definition of permanent resident in s 5A(1)(a) of the Act. He stated that the current regime within the Act provides for the grant of permanent visas which continue indefinitely, and in particular the definition of visa in s 5 of the Migration Act1958 (the Migration Act) includes a reference to old visa which includes the PEP issued to the applicant. The PEP gives the applicant the right to enter and remain in Australia, within a time limit (currently five years), although holders have a right to remain in Australia at the expiry of the period.
13. The Statement of Facts and Contentions stated that the PEP has not been cancelled or otherwise stopped being in effect, but the part of the PEP that allows travel to Australia has ceased, so that the applicant still holds a visa that allows him to live in Australia but not to enter Australia for that purpose. The main argument was that the applicant’s position comes within the definition of permanent resident in s 5 of the Act. The Statement drew the Tribunal’s attention to paragraph 1.4.2 of the Australian Citizenship Instructions (the Instructions) which states:
In relation to periods spent in Australia (excluding Norfolk Island and the Cocos (Keeling) Islands), a person is a permanent resident if s/he:
· holds a permanent visa (from 1/9/94) or held a permanent entry permit (prior to 1/9/94);
14. In addition to the legislation, the Statement referred to the booklet Special Migration (T13, pages 65-87) produced by DIMIA in 2004. Under the heading Basic requirements there is a category Former resident (T13, page 71) which provides.
You must be living outside Australia and either:
…
2. Have:
(a)at any time prior to 19 January 1981 completed 3 months service in the Australian Defence Forces (but not as a member of the Reserve Defence Force or the Emergency Defence Force) of the Commonwealth;
15. The applicant stated that this supports his position as the holder of a current permanent visa. He also said he is presently entitled to a Former Resident (subclass 151) visa, and on that grant of this visa he would immediately satisfy s 13(1)(a) of the Act. He submitted that Parliament would not have intended that ex-service personnel would need to make an application for a permanent visa and then make an application for Australian citizenship.
16. The applicant, in a Statement of Facts and Contentions dated 7 November 2005, submitted that the ordinary meaning of shall be taken to be, or to have been, applies the words to the time at which the issue occurs; so that the decision-maker may deem a person to be a permanent resident now or to have been in the past.
17. The Tribunal made its decision after considering the documents including written submissions. The Tribunal agrees with the respondent’s submissions, that the various sub-paragraphs of s 5A(1) of the Act outline different considerations for the deeming of permanent residence for different time periods. From the wording of s 5A(1)(a) of the Act, it is clear that that the provision is intended to operate to deem permanent residence in relation to periods before 2 April 1984 only, and cannot operate to deem a person to be a current permanent resident for the purposes of s 13(1)(a) of the Act. The Tribunal noted that s 5A(1)(a) of the Act has remained in the Act as a result of changes in the definition of categories of exclusions under the Act, such as unlawful non-citizen, prohibited immigrant, prohibited non-citizen and illegal immigrant.
18. The Tribunal finds that s 5A(1)(a) of the Act cannot operate to deem the applicant to have been a permanent resident after his departure from Australia in 1966 because he was not present in Australia as required by that section. Where a person is outside Australia, s 5A(1)(d) of the Act can deem a person to be a permanent resident, if he or she holds permission to return as a permanent resident. However, the applicant has conceded that this does not apply in his case. In respect of the circumstances of the applicant’s entry into Australia in 1955, there is no evidence that he arrived as the holder of a PEP, as at that time the migration legislation did not provide for the grant of PEPs; and in 1958 s 9 of the Migration Act provided that any entry permit held by a person in the applicant’s position lapsed on the person’s departure from Australia.
19. In respect of the words shall be taken to be or to have been in s 5A(1)(a) of the Act, the Tribunal concludes that, when viewed in its entirety, some of the sub-paragraphs in s 5A(1)(a) of the Act have present application (s 5A(1)(bb)(c) and (d)) and require the use of to be, while others have past application (s 5A(1)(a), (b) and (ba)) and require the use of to have been. The Tribunal finds that s 5A(1)(a) has past application only, as it operates only in respect of periods before 2 April 1984.
20. In respect of the applicant’s claim that his defence service exempts him from the residence requirements, the Tribunal notes that in s 13(3) of the Act the residence requirements specified in s 13(1)(d) and (e) are additional to the requirement in s 13(1)(a) of the Act, that the person is a current permanent resident. Therefore, this provision does not assist the applicant.
21. The Tribunal finds that there is no evidence to support the applicant’s claim that he would be entitled to a visa such as a Resident Return visa; and, in any case, the wording of the Act demonstrates that the usual path to citizenship is the grant of permanent residence for all applicants, including ex-service personnel.
22. For these reasons, the Tribunal concludes that the applicant is not a permanent resident of Australia and is not eligible for Australian citizenship.
DECISION
23. The Tribunal affirms the decision under review.
I certify that the preceding twenty-three [23] paragraphs are a true copy of the reasons for the decision of
G.D. Friedman, Senior Member
(sgd): Lydia Zozula
Associate
Date of hearing: Not applicable: decision on the papers
Date of decision: 16 December 2005
Advocate for the applicant: Mr J. Woods
Solicitor for applicant: Woodsman Consultants Group
Advocate for the respondent: Ms S. Law
Solicitor for the respondent: Australian Government Solicitor
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