Collins and Minister for Immigration and Citizenship

[2008] AATA 564

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2008] AATA 564

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No 2007/0321

GENERAL ADMINISTRATIVE DIVISION		)
Re		RICHARD COLLINS

Applicant

And MINISTER FOR IMMIGRATION AND CITIZENSHIP

Respondent

DECISION

Tribunal Dr Gordon Hughes, Member

Date2 July 2008

PlaceMelbourne

Decision The decision under review is affirmed.

....................[Sgd].....................

Dr Gordon Hughes
  Member

MIGRATION - Application for Australian citizenship – decision made under Australian Citizenship Act 1948 Act prior to 1 July 2007 – whether appeal can be heard under Australian Citizenship Act 2007 Act – Decision under review Affirmed

Acts Interpretation Act 1901 section 8

Australian Citizenship Act 1948 section s 13(1), s 13(4), s 52A

Australian Citizenship Act 2007 s 22

Australian Citizenship (Transitionals and Consequentials) Act 2007 Schedule 3 Item 7, Item 10

Esber v Commonwealth of Australia (1992) 174 CLR 430,

Grylls and Department of Immigration and Citizenship [2007] AATA 2085

REASONS FOR DECISION

2 July 2008 Dr Gordon Hughes, Member

1. This is an application for review of a decision by the delegate of the Respondent to refuse to grant the Applicant a Certificate of Australian Citizenship. The decision was made pursuant to section13 of the Australian Citizenship Act 1948 (the 1948 Act). The Applicant contended that his application for citizenship should have been determined pursuant to the Australian Citizenship Act 2007 (the 2007 Act).

2.      At the hearing before the Tribunal on 18 February 2007 the dispute was confined to the question of which Act should form the basis for determination. The Applicant did not contest the correctness of the delegate's determination pursuant to the criteria to be applied under the 1948 Act. Rather he contended that his application was more likely to have been successful under the 2007 Act and that there was no obvious reason why the more recent legislation should not be applied.

3. The Application was refused by the delegate under the 1948 Act on 3 January 2007. It was refused on the basis that the Applicant did not satisfy the residence requirements set out in section 13(1)(d) or section 13(1)(e) of the 1948 Act.

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(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;

4. At the hearing before the Tribunal, the Applicant did not dispute the delegate's interpretation of section 13(1) of the 1948 Act, nor did he pursue the argument that the discretion available under section 13(4)(b)(i) should be exercised in his favour on the basis that his time spent out of Australia involved activities beneficial to the interests of Australia.

5.      The Applicant sought to bring his appeal under the 2007 Act, mindful that there was a strong prospect that time spent out of Australia in the company of his Australian de facto spouse could, at the Minister's discretion, be counted towards the minimum Australian residency requirements pursuant to section 22(9)(d) of the 2007 Act.

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(9)If the person is the spouse, widow or widower of an Australian citizen at the time the person made the application, the Minister may treat a period as one in which the person was present in Australia as a permanent resident if:

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(d)the Minister is satisfied that the person had a close and continuing association with Australia during that period.

6.      Unfortunately for the Applicant, the 2007 Act does not apply to these proceedings and accordingly the application must fail.

7. Schedule 3 Item 7 of the Australian Citizenship (Transitionals and Consequentials) Act 2007 (the Transitional Act) provides that an application under the 1948 Act will be taken to be an application under the 2007 Act if the application has not been decided immediately before the commencement date. The commencement date was 1 July 2007. As the Applicant's application was refused on 3 January 2007, the requirement of the Transitional Act is not satisfied in this regard.

8.      The Tribunal does not have the option to hear the appeal under the 2007 Act. Section 52 of the 2007 Act does not permit a person to make an application to the Tribunal for review of a decision under the 1948 Act.

52 Review of decisions

(1)An application may be made to the Administrative Appeals Tribunal for review of the following decisions:

(a)a decision under section 17 to refuse to approve a person becoming an Australian citizen;

(aa)a decision under section 19D to refuse to approve a person becoming an Australian citizen;

(b)a decision under section 24 to refuse to approve a person becoming an Australian citizen;

(c)a decision under section 25 to cancel an approval given to a person under section 24;

(d)a decision under section 30 to refuse to approve a person becoming an Australian citizen again;

(e)a decision under section 33 to refuse to approve a person renouncing his or her Australian citizenship, except a refusal because of the operation of subsection 33(5) (about war);

(f)a decision under section 34 or subsection 36(1) to revoke a person’s Australian citizenship.

9. Despite the repeal of the 1948 Act, Schedule 3 Item 10 of the Transitional Act provides that section 52A of the 1948 Act continues to apply in relation to applications made under that Act, assuming a decision was made before 1 July 2007.

10. It is appropriate to note that s 8 of the Acts Interpretation Act 1901 provides that the repeal of an Act will not affect any right accrued under the repealed Act. The right to apply for merits review of a decision made under a repealed Act is an accrued right to which s 8 applies: Esber v Commonwealth of Australia (1992) 174 CLR 430, at 440.

11.     Having determined that the 1948 Act applies, it is not necessary for the Tribunal to further consider the merits of the delegate's decision under that Act as the accuracy of the delegate's finding was not challenged by the Applicant.

Decision

12.     For the above reasons, the decision under review is affirmed. The Applicant of course is free to commence a fresh application for Australian citizenship under the 2007 Act.

I certify that the 12 preceding paragraphs are a true copy of the reasons for the decision herein of Dr Gordon Hughes, Member.

Signed:         ...............[Sanjiv Shah].......................
  Associate

Date of Hearing  18 February 2008
Date of Decision  2 July 2008

Solicitor for the Respondent     Katie Miller