Dalton and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Citizenship) - [2020] AATA 141

Dalton and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Citizenship) [2020] AATA 141 (11 February 2020)
Division:                  General Division
File Number(s):      2019/1122
Re:  Ross Dalton
APPLICANT

AndMinister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
RESPONDENT

DECISION

Tribunal:                  Dr N A Manetta, Senior Member
Date:  11 February 2020
Place:  Adelaide

The Tribunal affirms the decision under review.
..............................[sgnd].................................
Dr N A Manetta
(Senior Member)

Catchwords
CITIZENSHIP – Meaning of permanent resident – meaning of permanent visa – where applicant holder of Special Category visa (subclass 444) visa that allowed him to stay in Australia indefinitely while he was a citizen of New Zealand – where applicant outside Australia on 26 February 2001 – decision under review affirmed.
Legislation
Australian Citizenship Act 2007 (Cth)
Migration Act 1958 (Cth)
Social Security Act 1991 (Cth)
Secondary Materials
IMMI17/108 Australian Citizenship (Permanent Resident Status)

REASONS FOR DECISION
Dr N A Manetta, Senior Member
11 February 2020

This is an application by Mr Ross Dalton, a citizen of New Zealand, seeking a review of a decision of the Respondent’s delegate that he is ineligible to be granted citizenship in respect of an application he made in that regard in November 2017. The delegate decided Mr Dalton was not a “permanent resident” of Australia at the time he made his application. At the hearing before me, Ms Roeger appeared for the respondent and Mr Dalton represented himself.
Hearing the matter afresh on the evidence before me, I must decide whether Mr Dalton was a permanent resident at the time he made his application. That is the only issue I need to determine.
STATEMENT OF CONCLUSION
I have decided that Mr Dalton was not a “permanent resident”, as defined, at the time he made his application. I shall affirm the decision under review. I set out below the background facts and my reasons for this conclusion. Since Mr Dalton was not legally represented, I shall try to express my reasons plainly.
BACKGROUND FACTS
Mr Dalton gave careful and honest evidence, which I accept. He is a citizen of New Zealand, as I have already noted, who was born in 1951. Although Mr Dalton was not entirely sure of the dates, he believes he first came to Australia in the mid-1970s aged about 25. He stayed until 1997, approximately 20 years. He is justifiably proud that during this time he was self-reliant, never claimed a welfare payment, and forged successful and varied careers in construction, plastering, and road-house management.
In 1997, Mr Dalton left Australia and returned to New Zealand to look after his mother. He was accompanied by his then wife and children. He did not return to Australia at any time until 2004 according to the departmental travel records that were in evidence before me.[1] As I understand his evidence, Mr Dalton divorced whilst he was in New Zealand, and after his mother’s death in 2007, he decided to resettle in Australia permanently. He returned to Brisbane, where his son, his niece, and his niece’s husband were living. Mr Dalton is presently engaged as an auditor, trainer and assessor in respect of occupational health and safety issues arising on work sites.
[1] Ex R1, p.132.
In November 2017, Mr Dalton lodged an application for citizenship, and he said that in late 2018 he was advised that he was not eligible because he did not have a permanent resident’s visa.
REASONS
The only issue before me is whether Mr Dalton was a permanent resident at the time he made his citizenship application. This is clearly stipulated to be an eligibility criterion: see section 21(2)(b)(i) of the Australian Citizenship Act 2007.
To be clear about the limits of the Tribunal’s review function, I note that in respect of this eligibility criterion, it would not assist Mr Dalton were he to have become a permanent resident at some point after he made his application. I note also that it is irrelevant to my review whether Mr Dalton would be granted a permanent resident’s visa today if he were to apply for one. Rather, I must be satisfied that Mr Dalton was a permanent resident at the time he made his application for citizenship in November 2017.
Mr Dalton is not legally trained and was not able, understandably, to assist me with the legal complexities of the Migration Act 1958 and the visas issued under it. He did make the salient point, however, that whenever he has entered Australia, he has been required at most to fill in a card and has always been granted entry. As matters stand, he is also entitled to stay in Australia to the end of his life, and he pointed to his eligibility to claim social welfare benefits and to access the Medicare system.
The Australian Citizenship Act 2007 regulates the conferral of citizenship on New Zealand citizens, among others, who wish to apply for it. As I have indicated, section 21(4)(b)(i) requires an applicant to be a permanent resident at the time the application for citizenship is made.
A “permanent resident” is defined in section 5 of the Australian Citizenship Act 2007. I shall not set out the definition in these reasons: the concept is elaborated in three paragraphs in subsection (1).
The first paragraph (paragraph (a)) defines a “permanent resident” to be a person present in Australia and who holds a permanent visa at the time in question. A “permanent visa” is defined in section 3 to have the same meaning as in the Migration Act 1958.
The Migration Act 1958 defines a “permanent visa” in section 30(1). It says that “a visa to remain in Australia may be a visa, to be known as a permanent visa, to remain indefinitely”. Section 30(2) refers to “temporary visas”, so called, to remain in Australia during a specified period or until a specified event happens or while the holder has a specified status.
I accept Ms Roeger’s submission that section 30 of the Migration Act 1958 draws a clear distinction between two mutually exclusive categories: permanent visas, so called, and temporary visas, so called. It may seem odd that a citizen of New Zealand who enters and may remain here until the end of his or life has a “temporary” visa only; but it is not necessary to consider any limits in the power under section 30(2) to prescribe temporary visas. For the purposes of conducting my review, I need only conclude that Mr Dalton has never held a “permanent visa” so called. At the time of his application, Mr Dalton held a visa that was “temporary” only, not “permanent”. The visa permits him to remain in Australia while he is a New Zealand citizen[2] and was issued, ostensibly, under s 30(2) of the Migration Act. It follows that Mr Dalton is not a “permanent resident” as defined for the purposes of section 5(1)(a) of the Australian Citizenship Act.
[2] See Special Category Visa Subclass 444.
The second way a person may be a permanent resident is specified in section 5(1)(b) of the Australian Citizenship Act. It is not relevant and I need not consider it.
The third way is prescribed in paragraph (c) of section 5(1). For this paragraph to apply, a person “must be covered by a determination in force under subsection (2)” of section 5. Amongst other things, subsection (2) permits the Minister (by legislative instrument) to determine that persons who hold or who have held a “special category visa” in the past are “permanent residents”.
I agree with Ms Roeger’s submission that this paragraph does not assist Mr Dalton. I need only set out my reasons briefly in this regard. An instrument has been promulgated.[3] It does apply to New Zealand citizens, but it requires Mr Dalton to be a “protected special category visa holder” within the meaning of section 7 of the Social Security Act 1991. This latter definition requires Mr Dalton to have been present in Australia on 26 February 2001 (or alternatively around that time).[4]
[3] IMMI17/108 Australian Citizenship (Permanent Resident Status) reproduced in Ex R1 at pp52ff.
[4] See Item 1 of Schedule 1 of IMMI17/108 and the definition of a “protected SCV holder” in s 7 of the Social Security Act 1991. The abbreviation “SCV” stands for “special category visa”.
It is clear Mr Dalton was residing in New Zealand on that date and had been for some years, and that he did not return to Australia until 2004. In my opinion, therefore, Mr Dalton does not satisfy Item 1 of Schedule 1 of the promulgated legislative instrument as he is not a “protected SCV holder” within the meaning given to that term in section 7 of the Social Security Act 1991. It follows in my opinion, that section 5(1)(c) does not assist Mr Dalton.
From these conclusions it follows that Mr Dalton was not a “permanent resident”, as defined, at the time he made his citizenship application in November 2017 although he may continue to live here indefinitely. It also follows in my opinion that his citizenship application was properly rejected by the delegate. I note that this conclusion is consistent with decisions in this Tribunal to which Ms Roeger referred me. In the circumstances, I need not set them out.
FORMAL DECISION
I shall affirm the decision under review.

21.     I certify that the preceding twenty (20) paragraphs are a true copy of the reasons for the decision herein of Dr N A Manetta, Senior Member.

...................[sgnd]........................
Administrative Assistant Legal
Dated 11 February 2020
Date of hearing:   20 December 2019
Applicant:  In person
Respondent’s representative:            Ms S Roeger, Australian Government Solicitor