Harvey and Minister for Immigration, Multicultural and Indigenous Affairs

[2005] AATA 839

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2005] AATA 839

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No  Q2005/251

GENERAL ADMINISTRATIVE DIVISION		)
Re		BARBARA HARVEY

Applicant

And MINISTER FOR IMMIGRATION, MULTICULTURAL AND INDIGENOUS AFFAIRS

Respondent

DECISION

Tribunal Senior Member B J McCabe

Date31 August 2005

PlaceBrisbane

Decision The Tribunal does not have jurisdiction to hear the application for review. The appeal is dismissed.

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

SENIOR MEMBER

CATCHWORDS

IMMIGRATION AND CITIZENSHIP – Citizenship – grant of citizenship – “permanent resident” – permanent residency in issue – New Zealand citizen not in Australia on 26 February 2001 – holder of special category visa in Australia for less then one year in the two years prior to 26 February 2001 – applicant unable to produce certificate of permanent residency issued under the Social Security Act 1991 - applicant not a permanent resident under the legislation.

PRACTICE AND PROCEDURE – Application for review – no jurisdiction to hear application for review under enabling legislation in the circumstances.

Australian Citizenship Act 1948 (Cth) ss 13, 52A

Australian Citizenship (Permanent Resident Status – New Zealand Citizens) Declaration 2001

Social Security Act 1991 (Cth) s 7

REASONS FOR DECISION

31 August 2005  Senior Member B J McCabe

1. On 22 April 2005 a delegate of the Minister for Immigration, Multicultural and Indigenous Affairs refused to grant the applicant Australian citizenship. Citizenship was refused under s 13(1)(a) of the Australian Citizenship Act 1948 (the Act) on the basis that the applicant is not a permanent resident. The applicant appealed to this Tribunal on the strength of advice contained within the respondent’s decision.

2. The respondent submitted the Tribunal does not have jurisdiction to review this decision pursuant to s 52A of the Act. Section 52A relevantly states:

52A Review of decisions

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

…

(a)decisions of the Minister under section 13 or subsection 23D(1) refusing an application;

…

(2)A person is not entitled to make an application under subsection (1) for review of a decision under section 13 (other than paragraph 13(9)(a) or (b)) unless the person is a permanent resident.

3.      The respondent says Mrs Harvey is not a permanent resident. Mrs Harvey is currently resident in Australia pursuant to a Special Category (subclass 444) Visa.

4.      Mrs Harvey has been married to Mr Harvey, a British National, for 37 years. In October 2000 Mr Harvey was granted permanent residency in Australia as the spouse of a New Zealand National. Mr Harvey was granted Australian Citizenship on 11 February 2005.

5.      The Australian Citizenship (Permanent Resident Status – New Zealand Citizens) Declaration 2001 (the Declaration) describes the categories of New Zealand citizens who are “permanent residents” for Australian citizenship purposes. The Declaration was made on 27 February 2001 pursuant to subsection 5A(2) of the Australian Citizenship Act 1948 (Cth). Under subsection 5(1) of the Declaration the following classes of New Zealand citizens are taken to be “permanent residents”:

(a)a New Zealand citizen who was in Australia on 26 February 2001 as the holder of a special category visa;

(b)a New Zealand citizen who was outside Australia on 26 February 2001 but was in Australia as the holder of a special category visa for a period of, or periods that total, not less than 1 year in the 2 years immediately before that date;

(c)a New Zealand citizen not mentioned in paragraph (a) or (b) who has a certificate, issued under the Social Security Act 1991, that states that the citizen was, for the purposes of that Act, residing in Australia on a particular date.

6.      At the hearing the applicant agreed she was not in Australia on 26 February 2001. The applicant also accepted she was in Australia as the holder of a special category visa for a period or periods that total less than 1 year in the 2 years immediately before 26 February 2001.

7. The certificates mentioned in subsection 5(1)(c) of the Act are issued pursuant to s 7(2E) of the Social Security Act 1991 (Cth). Section 7(2E) provides:

7(2E) A person who is residing in Australia and is in Australia may apply to the Secretary for a determination under this subsection stating that:

(a) the person was residing in Australia on 26 February 2001, but was temporarily absent from Australia on that day; or

(b) the person commenced, or recommenced, residing in Australia during the period of 3 months beginning on 26 February 2001.

8. Section 7(2F) continues:

7(2F) If a person makes an application under subsection (2E), the Secretary must make the determination if:

(a) the Secretary is satisfied that paragraph (2E)(a) or (2E)(b) applies to the person; and

(b) the application was made within whichever of the following periods is applicable:

(i) if paragraph (2E)(a) applies to the person—the period of 12 months beginning on 26 February 2001;

(ii) if paragraph (2E)(b) applies to the person—the period of 3 years beginning on 26 February 2001.

9.      Mrs Harvey told the Tribunal of her various efforts to obtain a residence certificate from Centrelink, but she was too late. The rejection decision of the Centrelink Authorised Review Officer stated the applicant first contacted Centrelink by phone to apply for a residence certificate on 4 March 2005 – over three years from 26 February 2001. The applicant did not dispute this evidence at the hearing.

10.     Mr and Mrs Harvey expressed their dismay at the rigidity of the legislation. Mr Harvey stated it was absurd that Mrs Harvey could not obtain citizenship simply because she was absent on one day of the year and subsequently failed to obtain a form from Centrelink. In written submissions Mr Harvey noted that he and his wife were unaware of the changes to the citizenship legislation.

11.     Mrs Harvey may have been entitled to a certificate from Centrelink under the relevant provisions of the Social Security Act 1991 (ss 7(2)-7(2D) had she sought one in time. Sadly, that did not occur and I do not have the power to make an exception to the legislation. The applicant is precluded from obtaining a determination under s 7(2F) because her application to Centrelink was out of time.

12. I am satisfied the applicant is not a permanent resident under the provisions laid out in subsection 5(1) of the Declaration. It follows the applicant is not a permanent resident for the purposes of s 13(1)(a) of the Australian Citizenship Act 1948. Section 52A(2) requires applicants for review of decisions refusing to grant citizenship to be permanent residents. The applicant is therefore not entitled to make an application for review to this Tribunal.

13.     The legislation is drafted very tightly. The Tribunal has no jurisdiction to hear this application.

I certify that the 13 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member B J McCabe.

Signed:         .....................................................................................
  Associate:      Sam J Appleton

Dates of Hearing  7 July 2005
  15 July 2005
Date of Decision  31 August 2005
The applicant was represented by Mr R Harvey.
The respondent was represented by Ms Gretchen Bennett, solicitor.