Gowda and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Citizenship)
[2020] AATA 4416
•7 October 2020
Gowda and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Citizenship) [2020] AATA 4416 (7 October 2020)
Division:GENERAL DIVISION
File Number(s): 2020/3483
Re:Nihaarika Vaishnavi Gowda
APPLICANT
AndMinister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
RESPONDENT
DECISION
Tribunal:Senior Member M J McGrowdie
Date:7 October 2020
Date of written reasons: 4 November 2020
Place:Sydney
For the reasons given orally at the conclusion of the hearing of this matter, the Tribunal affirms the decision under review dated 4 June 2020.
....................................[sgd]....................................
Senior Member M J McGrowdie
CATCHWORDS
CITIZENSHIP – application for citizenship by conferral – whether the applicant holds a permanent visa – whether or not Special Category (TY-444) visa should be regarded as a permanent visa – Special Category (TY-444) visa not to be regarded as a permanent visa – applicant does not hold a permanent visa – decision under review affirmed
LEGISLATION
Australian Citizenship Act 2007 (Cth) ss 3, 5(2), 21(5) and 24(1)
Migration Act 1958 (Cth) ss 20, and 30(1)-(2)
Social Security Act 1991 (Cth)CASES
Abdillahi and Minister for Home Affairs [2019] AATA 205
Fattah v Minister for Home Affairs [2019] FCCA 2640
Jiang and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] AATA 977
Visvanathan and Minister for Home Affairs [2018] AATA 3541REASONS FOR DECISION
Senior Member M J McGrowdie
4 November 2020
This is the decision in matter number 2020/3483, of Nihaarika Gowda and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (the Minister). The applicant made an application to the Administrative Appeals Tribunal on 9 June 2020, seeking a review of a decision by the Delegate of the Minister made on 4 June 2020, refusing to approve the applicant’s application for Australian Citizenship by conferral, pursuant to subsection 24(1) of the Australian Citizenship Act 2007 (Cth) (the Citizenship Act).
The applicant is a minor, having been born in 2009 in India. According to the applicant’s parents, both were permanent residents of Australia, and because of their personal circumstances, it appeared that the applicant’s mother travelled to India for support and to give birth to her daughter. At the time of her birth, the applicant’s father, Mr Madhu Gowda, was working extremely hard, finding it difficult financially to pay rent and trying to establish himself in Australia. He later became an Australian citizen, as did his wife.
The applicant has, following her birth, lived most of her life in Australia. When the applicant arrived in Australia for the first time, she came into the country as a citizen of New Zealand. At the time, the applicant’s father was also a citizen of New Zealand. The applicant currently holds a Special Category (TY-444) visa granted on 11 July 2019.
The issue to be determined in these proceedings is whether the applicant is entitled to citizenship under the Citizenship Act. In a determination made by the Minister’s Delegate on 4 June 2020 (the Determination), the Delegate determined that they were not satisfied that the requirements of section 21(5)(b) of the Citizenship Act were met as they considered that the applicant was not a permanent resident at the time that the application for citizenship was made.
The application for citizenship was made on 2 February 2020. In addition to the submissions filed by the respondent on 21 September 2020, I sought further submissions from the Minister via a Telephone Directions Hearing concerning whether or not the applicant’s Special Category (TY-444) visa should be regarded as a permanent visa.
The written submissions from the respondent, and the further information obtained at the Telephone Directions Hearing were received and formed part of the evidence in these proceedings.
The applicant’s father also provided evidence as to why it was reasonable for the applicant to become a citizen. At the time of his daughter’s birth, he was living in Australia and it was only through the personal circumstances of himself and his wife that his daughter was born overseas.
The applicant’s father is a committed, hardworking and law-abiding Australian citizen. He feels his daughter has been done an injustice. I have ventilated with Mr Gowda that there was a possibility of him applying, or rather for his daughter to apply with his assistance, for a Permanent visa, such as a Child visa. However, he appears reluctant to adopt that course because of perceived delays and costs involved.
There is nothing in the evidence to suggest that the applicant’s father or mother are anything but very decent Australian citizens who regard Australia as their home, and are able to travel—albeit for short periods—on their Australian passports, whereas the daughter is not presently an Australian citizen.
From a policy perspective, Parliament has made laws in relation to the governing of the conferral of Australian citizenship on persons. There are general policy grounds for this to be the case in terms of those persons who want to obtain citizenship by conferral. Section 21(5) of the Act provides that a person is eligible to become an Australian citizen if the Minister is satisfied that the person is under 18 at the time they make the application, and is a permanent resident of Australia both at the time of the application and the decision by the Minister. Certainly, the first requirement is met. The second requirement is therefore the question of whether the applicant was, at the time of making the application, a permanent resident.
It was the Minister’s submission that the Special Category (TY-444) visa was a temporary visa, permitting the holder to remain in Australia where the holder is a New Zealand citizen. It is not a permanent visa under section 30 of the Migration Act 1958 (Cth) (the Migration Act).
There is a determination which was made under subsection 5(2) of the Citizenship Act that certain ‘protected Special Category visa holders’ for the purposes of the Social Security Act 1991 (Cth) are also permanent residents for the purposes of the Citizenship Act. However, for that to apply, that requires the visa holder to have been present in Australia on or around 26 February 2001. It follows then that the applicant was not a person to have the benefit of the Determination under subsection 5(2) of the Citizenship Act.
Section 3 of the Citizenship Act provides that a ‘permanent visa’ has the same meaning as it does in the Migration Act. Section 30 of the Migration Act provides in subsection (1) that ‘a 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’. In subsection (2) it is provided that ‘a 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 for the person to remain in Australia during a specified period; or until a specified event happens; or where the holder has a specified status’.
A Special Category (TY-444) visa is dependent on the applicant remaining a citizen of New Zealand, and if that citizenship is lost then the visa comes to an end, given that a specific event has occurred. It has been held that a Special Category visa is a temporary, not a permanent visa. In Fattah v Minister for Home Affairs [2019] FCCA 2640, a decision of the Federal Court, consideration was given as to whether a Special Category (TY-444) visa was a permanent visa or not. It was there held that it was not a permanent visa.
Similar determinations have been made previously in the Administrative Appeals Tribunal. These cases include Visvanathan and Minister for Home Affairs [2018] AATA 3541. It was specifically held that such a visa was not a permanent visa. Similar determinations were made in the cases of Abdillahi and Minister for Home Affairs [2019] AATA 205 and Jiang and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] AATA 977. In that latter case, it was determined by the Administrative Appeals Tribunal that whilst it was accepted that the applicant had been the holder of a visa since birth, the important point was that the special category visa is a temporary visa, and it is therefore the case that the applicant is no longer, nor has she ever been the holder of, a permanent visa in Australia.
Mr Gowda feels most distressed that these provisions can act against his daughter’s application. He makes a very strong case for a determination in his daughter’s favour. However, as I have indicated to Mr Gowda, there are provisions in the legislation that must be followed. These provisions, which I have previously referred to, govern the determination of whether applicants meet the requirements to become a citizen of Australia.
If the applicant possessed a permanent visa, then the requirements of section 21(5) would have been met. There are provisions that govern such applications for citizenship and among them, there is no general discretion not to apply the provisions of the legislation.
For the reasons I have given, I am not satisfied that the applicant was the holder of a permanent visa at the time of her application for citizenship by conferral. If she had such a visa, then the requirements of section 21(5) would be met. Mr Gowda might regard it as extremely unfortunate that his daughter’s temporary visa could not be regarded as a permanent visa, she having lived most of her life in Australia and is now a student and will go on to become an employed person in Australia, and liable to pay taxes. Both her parents’ lives are in Australia and they are committed to being Australians and remaining in Australia, except for short visits taken from time to time overseas. It would certainly not appear that the applicant’s parents could otherwise be regarded as being good citizens of Australia.
However, I feel compelled to find against the applicant in respect of this application for Australian citizenship. That does not preclude a further application for citizenship to be made, provided that the requirements of the legislation are met.
Accordingly, the determination of the Administrative Appeals Tribunal is to affirm the decision of the Delegate dated 4 June 2020, refusing to approve the applicant’s application for Australian Citizenship by conferral, pursuant to subsection 24(1) of the Citizenship Act.
I certify that the preceding 20 (twenty) paragraphs are a true copy of the reasons for the decision herein of Senior Member M J McGrowdie
...................................[sgd].....................................
Associate
Dated: 4 November 2020
Date(s) of hearing: 7 October 2020 Advocate for the Applicant: Mr M Gowda Solicitors for the Respondent: Mr A Zhang
0
4
0