FSDH and Minister for Immigration and Border Protection (Citizenship) - [2018] AATA 1844

FSDH and Minister for Immigration and Border Protection (Citizenship) [2018] AATA 1844 (22 June 2018)
Division:GENERAL DIVISION
File Number: 2017/7650
Re:FSDH
APPLICANT

AndMinister for Immigration and Border Protection
RESPONDENT

DECISION
Tribunal:Member S Burford
Date:22 June 2018
Place:Perth

By operation of subsection 52(2) of the Australian Citizenship Act 2007 (Cth) the Tribunal has no jurisdiction to hear the application for the review of a decision of the Minister to refuse to approve the Applicant becoming an Australian citizen under subsection 24(1) of the Australian Citizenship Act 2007 (Cth).
The Tribunal dismisses the application under subsection 42A(4) of the Administrative Appeals Tribunal Act 1975 (Cth) as the Tribunal is satisfied that the decision is not reviewable by the Tribunal.
......[sgd]..................................................................
Member S Burford
CATCHWORDS
Citizenship application – jurisdiction – visa cancellation – whether the applicant is a permanent resident – application dismissed
LEGISLATION
Administrative Appeals Tribunal Act 1975 (Cth) – ss 35(3) – ss 42A(4)
Australian Citizenship Act 2007 (Cth) – s 3 – s 5 – ss 5(1) – s 21 – ss 21(1) – ss 21(2) –
ss 21(8) – s 24 – ss 24(1) – ss 24(2) – s 52 – ss 52(1)(b) – ss 52(2)
Australian Citizenship (Transitionals and Consequentials) Act 2007 (Cth) – item 7(2) of Schedule 3
Migration Act 1958 (Cth) – s 5 – s 30 – ss 30(1) – s 501
Migration Legislation Amendment Act (No.1) 2008 (Cth)
CASES
McGrath and Secretary, Department of Social Services [2017] AATA 2422
REASONS FOR DECISION
Member S Burford
22 June 2018
THE APPLICATION
An application was made by FSDH (the Applicant) on 24 December 2017 to the Administrative Appeals Tribunal (the Tribunal) for review of the decision of the delegate for the Minister of Immigration and Border Protection (the Minister) to refuse the Applicant’s application for Australian citizenship by conferral on 12 December 2017 (the Decision).
The Decision of the Minister’s delegate to refuse the application was made under section 24(2) of the Australian Citizenship Act 2007 (Cth) (the Citizenship Act).
MATERIAL
The Tribunal has considered the material before it including:
·the Applicant’s written submissions on jurisdiction including attachments, received by the Tribunal on 23 February 2018 (the Applicant’s submissions);
·the Applicant’s further written submissions received on 6 March 2018 (the Applicant’s further submissions); [1]
·the Applicant’s supplementary written submissions including attachments, received by the Tribunal on 2 April 2018 (the Applicant’s supplementary submissions);
·the Respondent’s written submissions on jurisdiction, received by the Tribunal on 22 February 2018 (the Respondent’s submissions); and
·the Respondent’s supplementary written submissions on jurisdiction including attachments, received by the Tribunal on 23 March 2018 (the Respondent’s supplementary submissions).
[1] While the Applicant’s further submissions were not identified as being on the matter of jurisdiction, the Tribunal has taken them into consideration in this matter.
The interlocutory hearing on jurisdiction was held in Perth on 12 March 2018. The Applicant attended the hearing by telephone. The Respondent was represented by a Senior Lawyer at Australian Government Solicitor, who also attended by telephone.
At the hearing an order for confidentiality was made pursuant to subsection 35(3) of the Administrative Appeals Tribunal Act 1975 (Cth) (the AAT Act). The Respondent did not object to the order being made.
Oral submissions were made by both parties. The Applicant answered questions put to him by the Tribunal to clarify his position on submissions made by the Respondent. The Applicant also confirmed his understanding of the Respondent’s submissions.
The Tribunal directed the Respondent to file supplementary submissions that detailed the Minister’s position on the Applicant’s migration status. These submissions were subsequently filed. The Applicant filed supplementary submissions in response.
The Tribunal has reviewed the relevant material before it. The Tribunal is satisfied that both parties, either orally or in writing were provided an opportunity to address evidence and relevant matters in issue.
BACKGROUND
The Applicant is challenging the Decision of a delegate of the Minister, dated 12 December 2017, that refuses to grant the Applicant Australian citizenship. The application was refused on the basis that the Applicant did not satisfy the ‘good character’ requirement or the requirement to be a permanent resident as specified in the Citizenship Act (T2 59 – 72).
The Applicant entered Australia in the 1970’s as the holder of a Permanent Transitional (subclass BF-C) visa, as a dependent on his mother’s foreign passport. According to the Respondent’s submissions, the Applicant is a citizen of his birth country (Respondent’s submissions, paragraph 2).
In late 1978, the Applicant lodged an application for Australian citizenship (the 1978 Citizenship Application). The Respondent maintains that the 1978 Citizenship Application was not finalised at the time due to several requirements remaining outstanding (Respondent’s written submissions, paragraph 3).
In early 1983, the Applicant lodged a further application for Australian citizenship (the 1983 Citizenship Application) and attended an interview with Departmental officers in early 1983. The Respondent submits that during the interview the Applicant was requested to provide additional information to support the application (Respondent’s written submissions, paragraph 4).
The Respondent submits that in mid 1983 the Department wrote to the Applicant requesting that he provide a police certificate. As at 19 October 1983, the requested documents had not been provided and the application was not finalised at that time due to outstanding requirements (Respondent’s submissions, paragraph 5).
The Applicant has a series of convictions for relatively minor offences between the early 1970’s and the early 2000’s. In late 2003, the Applicant was convicted of 21 sexual offences committed against a minor child over a 13 year period. He received a cumulative sentence of 11 years and four months in prison for these convictions (Respondent’s submissions, paragraph 6).
As a result of the convictions against him, the Applicant’s permanent visa was cancelled in late 2004, pursuant to section 501 of the Migration Act 1958 (Cth) (the Migration Act) (T2 62; see Respondent’s supplementary submissions, paragraph 7).
The Applicant sought review of the visa cancellation decision which was subsequently affirmed by the Tribunal in early 2005 (Respondent’s submissions, paragraph 8).
In early 2013, the Applicant was detained on his release from prison on the basis that he was an unlawful non-citizen (Respondent’s submissions, paragraph 9).
In mid 2013, a delegate of the Minister refused the 1978 Citizenship Application (Respondent’s submissions, paragraph 10).
In late 2017, the Applicant lodged an Application for Evidence of Australian Citizenship. That application was refused in late 2017 (Respondent’s submissions, paragraph 12).
In late 2017, the Department wrote to the Applicant inviting him to provide information in relation to the 1983 Citizenship Application to assist the Department in deciding whether or not the application should be approved (Respondent’s submissions, paragraph 11).
The delegate refused the 1983 Citizenship Application on 12 December 2017 (Respondent’s submissions, paragraph 1) and the Applicant filed an application for review of that decision with the Tribunal on 24 December 2017 (T1 1-6, Respondent’s submissions, paragraph 3 -13).
THE ISSUE
The issue for determination is whether this Tribunal has jurisdiction to review the Minister’s Decision, dated 12 December 2017, to refuse the Applicant’s application for Australian citizenship by conferral.
The Respondent contends there are two issues before the Tribunal and two reasons the Application should fail:
18.1Firstly, because the applicant did not meet and cannot meet the requirement in section 21(2)(b) of the Act that he is a permanent resident at the time he made the application and at the time of the Minister’s decision on the application; and
18.2 Secondly, because the applicant is specifically precluded from applying for review of this decision in this Tribunal pursuant to section 52(2) of the Act as he is not a permanent resident (Respondent’s submissions, paragraph 18).
(Original emphasis.)
Further the Respondent submits that:
the applicant is highly unlikely to satisfy the Tribunal that he meets the good character requirement in light of the nature of his convictions. However, the respondent accepts that it is open to the Tribunal to reach a different conclusion than the delegate in respect of the finding that the applicant has not met the good character requirement in section 21(2)(h) (Respondent’s submissions, paragraph 19).
While noting the Respondent’s submissions, the Tribunal regards the question of whether the Applicant is able to seek review as a threshold question to be determined prior to turning to issues to do with his capacity to meet citizenship requirements, or as the Applicant contends, which citizenship requirements apply.
Thus the issues to be determined by the Tribunal on the question of jurisdiction are:
(a)Whether the applicant is precluded from applying for review of the decision in this Tribunal pursuant to subsection 52(2) of the Citizenship Act on the basis that he is not a permanent resident.
(b)If the Applicant is not precluded from applying for review, whether the requirements in subsection 21(2)(b) of the Citizenship Act apply to the 1983 Citizenship Application.
(c)If subsection 21(2)(b) of the Citizenship Act applies, whether the applicant met or did not meet the requirement in subsection 21(2)(b) of the Citizenship Act that he is a permanent resident at the time he made the application and at the time of the Minister’s decision on the application.
In the Tribunal’s view if the Applicant is precluded under subsection 52(2) of the Citizenship Act from seeking a review of the decision, the Tribunal lacks jurisdiction to hear the application. Accordingly, it would be unnecessary to determine issues arising under subsection 21(2)(b) of the Citizenship Act.
LEGISLATIVE FRAMEWORK AND SUBMISSIONS
The Tribunal notes that the 1983 Citizenship Application was made prior to the commencement of the current Citizenship Act (the Citizenship Act). Item 7(2) of schedule 3 to the Australian Citizenship (Transitionals and Consequentials) Act 2007 (Cth) provides:
if the person’s application (the old application) made under section 13 or 23D of the old Act had not been decided immediately before the commencement day, the old application is, on and from the commencement day, taken to be an application (a new application) to become an Australian citizen made under section 21 of the new Act [Citizenship Act].
Section 21(1) of the Citizenship Act provides that:
a person may make an application to the Minister to become an Australian citizen.
Accordingly, the Respondent submits that the Applicant’s 1983 Citizenship Application is taken to have been made under section 21 of the Citizenship Act, notwithstanding the fact that the Applicant’s application was made prior to the commencement of the Citizenship Act.
Subsection 24(1) of the Citizenship Act provides that:
10If a person makes an application under section 21, the Minister must, by writing, approve or refuse to approve the person becoming an Australian citizen.
The Tribunal’s review powers are set out in section 52 of the Citizenship Act, which relevantly provide:
1An 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…
Subsection 52(2) of the Citizenship Act provides:
2However, if:
(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.
(Original emphasis.)
Subsection 42A(4) of the AAT Act states:
4The Tribunal may dismiss an application without proceeding to review the decision if the Tribunal is satisfied that the decision is not reviewable by the Tribunal.
The Respondent submitted that the Minister’s Decision on 12 December 2017 was a decision under subsection 24(2) of the Citizenship Act. Accordingly, subsection 52(2) of the Citizenship Act applies to the Applicant’s application and the availability of review.
The Applicant submitted that subsection 21(2)(b)(ii) of the Citizenship Act did not apply to his application for citizenship as it was filed prior to the commencement of those provisions of the Citizenship Act (which were introduced by amendments made in 2008[2]). He based this submission on information he says was provided by an officer of the Department in correspondence relating to the 1983 Citizenship Application (T20 256-257, Respondent’s submissions on jurisdiction, paragraph 12). The Respondent’s submissions argue that subsection 21(2)(b)(ii) of the Citizenship Act does apply to the Applicant’s 1983 Citizenship Application, by operation of the Australian Citizenship (Transitionals and Consequentials) Act 2007 (Cth).[3]
[2] Migration Legislation Amendment Act (No.1) 2008 (Cth).
[3] The Tribunal notes that the delegate’s decision suggests the requirement for the Applicant to have been a permanent resident at the time of the decision on his 1983 Citizenship Application was applied as a matter of policy.
While the Tribunal notes the submissions in relation to the application of the ‘time of decision’ requirements of subsection 21(2)(b)(ii) of the Citizenship Act to the Applicant’s 1983 Citizenship Application, the question of whether subsection 21(2)(b) of the Citizenship Act applies relates to the issue of eligibility for citizenship and not the ability to apply for review. In light of the Tribunal’s findings on jurisdiction, which are outlined below, it is not necessary for the Tribunal to make a finding on the application of this subsection.
CONSIDERATION
The Tribunal accepts the Respondent’s submissions that pursuant to the provisions of the Australian Citizenship (Transitionals and Consequentials) Act 2007 (Cth), the Applicant’s 1983 Citizenship Application is taken to have been made under section 21 of the Citizenship Act. While certain special provisions apply to applications made prior to the commencement of the Citizenship Act, principally in relation to the residence requirement provisions, these do not impact on the criteria for review of a decision made under

section 24.
The Tribunal is satisfied that the application is for review of a decision made under section 24 of the Citizenship Act to refuse a person becoming an Australian citizen:

subsection 52(2)(a) of the Citizenship Act. In considering subsection 52(2)(b) of the Citizenship Act, the Tribunal is satisfied that the Minister’s reasons for decision do not refer to the eligibility grounds under subsection 21(8) of the Citizenship Act (statelessness). Further, the Tribunal finds that the Applicant was over the age of 18 at the time the 1983 Citizenship Application was made: subsection 52(2)(c) of the Citizenship Act. Therefore, subsection 52(2) of the Citizenship Act applies.
Subsection 52(2) of the Citizenship Act precludes a person who is not a permanent resident from making an application to this Tribunal for a review of a decision made under section 24 of the Citizenship Act. The question then arises as to whether the Applicant was a permanent resident or whether subsection 52(2) of the Citizenship Act precludes him from making an application for review to this Tribunal.
The Tribunal finds that the relevant date in determining whether or not an Applicant is a permanent resident for the purpose of determining jurisdiction is the date that the application is made to the Tribunal. In the present case the application to this Tribunal was made on 24 December 2017.
Was the Applicant a permanent resident?
Applicant’s submissions on visa status
The Applicant’s central claim in relation to the review is that he is an Australian citizen. The Applicant maintains that he became an Australian citizen by virtue of an application for Citizenship lodged by his mother in 1975. The Applicant claims to have taken an oath of allegiance in December 1975 or September 1978. On this basis the Applicant denies he is an unlawful non-citizen. In his submissions the Applicant notes that he is seeking a declaratory order to the effect that he is an Australian citizen (Applicant’s submissions and supplementary submissions).
The Applicant’s history in relation to his citizenship applications is undoubtedly complex. According to the material submitted to the Tribunal and the submissions of both parties, his mother applied for Australian citizenship in 1975. The Tribunal’s review of the materials suggests there may be some question as to the date that the mother’s application was made and whether the Applicant was under 18 years of age at the time. The Respondent states that the mother’s application was made in late 1975, when the Applicant was over 18 years of age. The Applicant submits that the application was made in early 1975 and approved by the Minister in late 1975.
While there is some support in the materials before the Tribunal for the Applicant’s account of the dates, there is nothing in the material to suggest that the Applicant was included in the citizenship application or certificate issued to his mother (which was provided to the Tribunal) (Applicant’s submissions and Respondent’s supplementary submissions, paragraph 10 and 11). The Applicant has not provided any other proof that he is an Australian citizen.
In any event, in relation to the Applicant’s claims that he is an Australian citizen, the Respondent submits that:
2the Applicant is not an Australian citizen;
3This Tribunal does not have jurisdiction to make a declaratory order to that effect; and
4Such a claim does not remedy the Tribunal’s lack of jurisdiction in this matter (Respondent’s supplementary submissions, paragraph 3).
The Tribunal accepts the Respondent’s submissions.
The Applicant’s visa history is complex and his citizenship applications have, on any measure, taken a substantial amount of time for the Minister to resolve. This has no doubt created some confusion in the mind of the Applicant as to his immigration and citizenship status, and options for resolving his current situation. However, there is no evidence before the Tribunal that the Applicant is an Australian citizen.
The Tribunal’s powers are limited. The Tribunal’s jurisdiction is defined by statute. Unlike the courts it does not have inherent jurisdiction (see for example McGrath and Secretary, Department of Social Services [2017] AATA 2422). As noted above, the Tribunal’s powers of review with respect to citizenship matters are governed by section 52 of the Citizenship Act. Those powers do not include the power to declare that a person is an Australian citizen.
If it is declaratory relief that the Applicant seeks then he needs to seek that relief in a different jurisdiction. Further, if the Tribunal were to accept or find that the Applicant is an Australian citizen, it would still lack jurisdiction in the Applicant’s case because the Applicant would then be a citizen, and not a permanent resident as required under section 52(2).

In any event, there would be no reviewable decision before the Tribunal. As the Respondent notes in their submissions:
As a matter of logic an Australian citizen cannot be granted Australian citizenship (Respondent’s supplementary submissions, paragraph 18.3).
Or, as is the case of the decision which is the subject of the Applicant’s application, a Minister cannot ‘refuse to grant’ citizenship to a person who is already an Australian citizen (see Respondent’s supplementary submissions, paragraph 18).
For these reasons, the Tribunal finds that notwithstanding the Applicant’s claims that he is an Australian citizen, the issue to be determined by the Tribunal remains whether the Tribunal has jurisdiction under section 52(2) of the Citizenship Act to review the decision to refuse the Applicant’s citizenship application.
Permanent residency
In order to determine whether the requirements of subsection 52(2) of the Citizenship Act are met, the Tribunal must determine whether the Applicant met the definition of permanent resident at the time the application for review was made.
Accordingly, the issue is whether the Applicant was, as at 24 December 2017, a permanent resident. “Permanent Resident” is defined in section 3 of the Citizenship Act as having the meaning given to that term in section 5 of the Citizenship Act.
Subsection 5(1) of the Citizenship Act is in the following terms:
1For 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 the 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.
(Original emphasis.)
The Applicant did not fall into the categories as set out in subsections 5(1)(b) and (c) of the Citizenship Act and therefore must satisfy the requirements of subsection 5(1)(a) of the Citizenship Act to be considered a permanent resident. In other words, the Applicant must have held a permanent visa on 24 December 2017.
A permanent visa is defined in section 3 of the Citizenship Act to have the meaning of that term as set out in the Migration Act 1958 (Cth) (the Migration Act). Section 5 of the Migration Act defines a permanent visa as being defined in subsection 30(1) of the Migration Act. Section 30 of the Migration Act is in the following terms:
1A visa to remain in Australia (whether also a visa to travel to and enter Australia) may be a visa, to be known as a permanent visa, to remain indefinitely.
2A visa to remain in Australia (whether also a visa to travel to and enter Australia) may be a visa, to be known as a temporary visa, to remain:
(a)during a specified period; or
(b)until a specified event happens; or
(c)while the holder has a specified status.
The Applicant’s permanent visa was cancelled by the Minister in late 2004 under section 501 of the Migration Act 1958 as a result of the convictions against him. That decision was affirmed by the Tribunal in mid 2005 (T14 222 – 230; Respondent’s supplementary submissions, paragraph 5).
The Applicant has been detained as an unlawful non-citizen since his release from prison in 2013 (Respondent’s submissions, paragraph 9).
Taking into account the material before it, the Tribunal finds that the Applicant is an unlawful non-citizen and does not hold a permanent visa. Therefore the Applicant is not a permanent resident as defined under section 5 of the Citizenship Act.
CONCLUSION
In order to bring an application for review before the Tribunal the Applicant is required to be a permanent resident for the purpose of section 52 of the Citizenship Act. To be a permanent resident, as defined in the Citizenship Act, the Applicant would have to have held a permanent visa at the time the application for review was made. The Applicant’s permanent visa was cancelled in late 2004. Accordingly, he is not a permanent resident for the purposes of subsection 52(2) of the Citizenship Act.
As the Tribunal has determined the Applicant is not a permanent resident, the Tribunal does not have jurisdiction in relation to the application. Accordingly, it is not necessary to deal with the other ground of dismissal raised in the Respondent’s submissions.
DECISION
By operation of subsection 52(2) of the Citizenship Act, the Tribunal has no jurisdiction to hear the application for the review of a decision of the Minister to refuse to grant citizenship under section 24 of the Citizenship Act.
The Tribunal dismisses the application under section 42A(4) of the Administrative Appeals Tribunal Act 1975 (Cth).

I certify that the preceding 63 (sixty – three) paragraphs are a true copy of the reasons for the decision herein of Member S Burford

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Administrative Assistant - Legal
Dated: 22 June 2018

Date of hearing: 12 March 2018

Applicant: In person

Representative for the Respondent: Arran Gerrard

Solicitors for the Respondent: Australian Government Solicitor

Date of hearing:	12 March 2018
Applicant:	In person
Representative for the Respondent:	Arran Gerrard
Solicitors for the Respondent:	Australian Government Solicitor