Jaimee-Anne Khan and Minister for Immigration and Border Protection
[2014] AATA 898
•4 December 2014
[2014] AATA 898
Division GENERAL ADMINISTRATIVE DIVISION File Number
2013/6986
Re
Jaimee-Anne Khan
APPLICANT
And
Minister for Immigration and Border Protection
RESPONDENT
DECISION
Tribunal G.D. Friedman, Senior Member
Date 4 December 2014 Place Melbourne The Tribunal dismisses the application for lack of jurisdiction.
............................[Sgd].....................................
Senior Member
CATCHWORDS
MIGRATION – jurisdiction question – whether applicant permanent resident – whether letter constitutes a certificate certifying residency
LEGISLATION
Administrative Appeals Tribunal Act 1975 s 42A(4)(b)
Australian Citizenship Act 2007, ss 5(1), 5(2)(a), 21(2)(b), 21(2)(c), 22(1), 22A, 22B, 23, 52(2)
Australian Citizenship Instructions, Sch 1, Pt 14
Australian Citizenship (Permanent Resident Status) Determination IMMI 07/037Social Security Act 1991, ss 7(2B), 7(2E), 7(2F), 7(2G)
CASES
Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634
REASONS FOR DECISION
G. D. Friedman, Senior Member
4 December 2014
The matter before me is an application for a review of a decision by the respondent dated 28 November 2013, in which the respondent refused to grant citizenship by conferral because the applicant was not a permanent resident under the Australian Citizenship Act 2007 and, therefore, could not satisfy ss 21 2(b) and 2(c) of that Act.
Under the Act, a decision made to refuse an application for the conferral of citizenship requires a permanent residency decision in order to seek review by this tribunal, under section 52(2) of the Australian Citizenship Act 2007 (Citizenship Act). Consequently, if the applicant is not a permanent resident for the purposes of the Citizenship Act, then the tribunal does not have jurisdiction to consider an application for review.
Whilst I have to consider the substantive matter of whether the decision was a correct or preferable decision to refuse to grant citizenship to the applicant, it is also really a question of jurisdiction. As was conceded by the applicant's representative at the hearing, Ms Hamilton, if I find against the applicant in terms of the permanent residency status, then the Tribunal will have to dismiss the application for lack of jurisdiction.
There is no dispute about the facts. That is, the applicant, Ms Khan, was born in December 1988 and is of New Zealand citizenship. She holds a visa
sub-class 444, special category visa, and there is no dispute as to her movement in and out of Australia. She first made trips in 1996 and has made a number of trips to Australia, arriving on 5 April 2001 until 27 April 2001; and arriving on 13 October 2001 and departing on 29 September 2003.She made her application to the relevant department on 7 October 2013. She attached to her application a letter from Centrelink dated 9 July 2013, which formed the basis of her application today, a certificate for the purposes of the Social Security Act 1991 (Social Security Act). The delegate of the respondent refused the application because of the failure to satisfy the general residency requirements under the Citizenship Act. On 31 December 2013, the applicant applied to this tribunal for review and this brings the matter before me today.
The relevant legislation, which I've already referred to, is the Australian Citizenship Act 2007, which commenced on 1 July of that year. Section 21(2)(b) requires a person to be a permanent resident at the time of application and at the time of decision. The time of decision would be the delegate's decision to refuse. It might ordinarily be today but if I find that there's no jurisdiction, then there won't be a decision made by me along those lines. So the relevant dates would be the date of application and the date of the delegate's decision.
Section 21(2)(c) of the Citizenship Act says a person is eligible to become an Australian citizen if the Minister is satisfied that the person:
Satisfies the general residence requirement (section 22) or the special residence requirement (sections 22A or B) or has completed relevant defence service at the time the person made the application.
The latter section does not apply in this particular case. Under section 22(1) of the Citizenship Act:
A person satisfies the general residence requirement if:
(a) the person was present in Australia for a period of 4 years immediately before the day the person made the application;
(b) the person was not present in Australia as an unlawful non-citizen …; and
(c) … was present … as a permanent resident for a period of 12 months immediately before the day the person made the application.
Section 5(1) of the Citizenship Act provides that:
a person is a permanent resident under the Act if:
…
(c)the person is covered by determination in force under subsection 5(2) at a particular time.
Section 5(2)(a) states:
The Minister may, by legislative instrument, determine that:
(a) persons who hold a special category visa;
…
and who satisfy specified requirements are, or are during a specified period, persons to whom this subsection applies.
There is no dispute between the parties that in relation to section 5(2) of the Act, there is a legislative instrument that was made on 27 June 2007 by the then-Minister, and that it is legislative instrument IMMI 07/037. That determines that:
Persons holding a special category of visas, who satisfy the requirements mentioned in Schedule 1 are taken to be persons to whom section 5(2) of the Act applies during any period while the person satisfies the requirements.
Item 1 of Schedule 1 of that legislative instrument specifies that such requirements are met by a New Zealand citizen who:
(a) was in Australia on 26 February 2001 as a holder of a special category visa; or
(b) was outside Australia on 26 February 2001 but was in Australia as a holder of a special category visa for a period of or periods in total of not less than one year in the two years immediately before that date; or
(c) 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, regardless of the date that's certified or when the certificate is issued.
There is no dispute that the relevant paragraph of Schedule 1 of that legislative instrument is paragraph (c), and that it requires that a person has the certificate under the Social Security Act. I note the Australian Citizenship Instructions, which were referred to by Mr Knowles on behalf of the respondent, are a commentary on the relevant provisions of special category visa holders in relation to the certificate requirement in Item 1(c) of Schedule 1.
I note that even though it is commentary, I would describe that document as a policy document and the Tribunal is required to take into account policy unless there are cogent reasons not to, as in Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634. In my view there are no cogent reasons why I should not take policy into account in this particular case. The relevant policy is the Australian Citizenship Instructions, Chapter 14, which deals with citizens of New Zealand in Australia.
In the overview it refers to relevant dates, the most relevant of which is from 27 February 2001 until the present time when the legislative requirements or the arrangements for granting citizenship to New Zealand citizens changed. A lot of the matters that were put to me today refer to those dates and the transitional requirements that flow from the decisions made in respect of the period after 27 February 2001.
Parts 14.2.4 and 14.2.3 of the Australian Citizenship Instructions refer to the period 27 February 2001, and Part 14.2.4 deals specifically with Centrelink certificates. It states that:
A Centrelink certificate provides evidence that the person whose name and other particulars appear on the certificate falls under the transitional provisions and is deemed to be a permanent resident for citizenship purposes (on or after 27/2/01) in Australia.
There's a table that refers to the transitional arrangements. On
26 February 2001, if there is a holder of a special category visa, that person could be considered a permanent resident for citizenship purposes only if the person is a resident:(1) in Australia as the holder of a special category visa for a period totalling 12 months in the previous 2 years; or
(2) [has] a Centrelink certificate stating that they were residing in Australia.
The transitional provisions referred to are provisions within the Social Security Act. In particular, Part 14.2.4 of the Australian Citizenship Instructions gives a summary of the relevant transitional provisions in section 7(2E) and (2G) of the Social Security Act under which the determinations are made.
Reference has been made to the Social Security Act and under section 7.2 of that Act, Australian resident is defined as a person who:
(a) resides in Australia; and
(b) is one of the following:
(i) an Australian citizen;
(ii) the holder of a permanent visa; and
(iii) a special category visa holder who is a protected special category visa holder.
The Social Security Act goes on to talk about protected special category visa holders. There is no dispute between the parties that the applicant cannot be classified as a protected special category visa holder at the time. This means that, in effect, to be successful in the application before me today, the applicant must demonstrate that she has the relevant Centrelink certificate as I have already described for the purposes of the Social Security Act. A certificate refers specifically to a determination made under section (2E) or (2G) as I have already stated.
There is a template certificate that has been provided to the Tribunal. The template shows that, for the purposes of the Social Security Act in relation to applications for the grant of Australian citizen, the document is:
A certificate stating that the certificate is issued for the purpose of possible future claims for social security payments, and the certificate will also be required in any application for the grant of Australian citizenship.
Then the certificate on the second page contains the determination under s 7(2E) and (2G), and examples of both. An example states:
This certifies that -
and it gives the person's name and address -
is a New Zealand citizen whose date of birth is -
specified –
and whose passport number is -
specified -
was residing in Australia on 26 February 2001 in accordance with section 7(3) of the Social Security Act, but was temporarily absent from Australia on that day.
Subsection 7(2E)(b) refers to the person commenced, or recommenced, residing in Australia in accordance with section 7(3) of the Social Security Act, during the period of 3 months beginning on 26 February 2001.
Those are the examples that have been provided to the Tribunal in the form of templates. The actual examples of letters are examples of the certificates that are generally provided in the circumstances set out in the circumstances where a person was not residing in Australia on 26 February 2001 but for particular periods after that. I take note of those templates and the examples that are set out there.
When making the decision to refuse citizenship to the applicant, the delegate considered whether the applicant was a permanent resident and assessed the requirements of Item 1 of Schedule 1 of the instrument that I have already referred to. The applicant was not in Australia on 26 February 2001 and was not in Australia during the two year period prior to that date, and according to the delegate, did not provide evidence to suggest that she had been issued with a certificate under the Social Security Act that she was a resident of Australia on 26 February 2001.
The letter that was provided by the applicant stating that the applicant was residing in Australia since 13 November 2001 was not considered by the delegate to be a relevant Centrelink certificate. Therefore, the applicant was not found to satisfy s 21(2)(b) of the Citizenship Act, could not satisfy the resident requirements in s 22A, 22B or 23 and, therefore, could not satisfy the residency requirement.
What I have to determine is whether in fact the letter that was provided by the applicant in support of her application, that is the letter dated 9 July 2013, is a Centrelink certificate for the purposes of Item 1(c) of Schedule 1 of the Legislation Instrument IMMI 07/037.
I have also before me, and I have determined that this will be Exhibit R1, an affidavit from Ms Dara Maree Bartulin dated 4 August 2014. Ms Bartulin is employed by the Commonwealth Department of Human Services, in the Older Australians and International Branch of the Disability Carers and Older Australians Division. She has a lot of experience in this particular area of International Programs for Centrelink. She is the Senior Program Officer in the International Program Team, specialising in residence related to policy and processes for Centrelink customers.
She has been working for the Centrelink International Services area since February 2001 and has been in the International Program Team since July 2003. In her affidavit she set out the residence determinations for the purposes of the Social Security Act, most of which I have already outlined. She noted that the applicant, Ms Khan, is and at all times had been a citizen of New Zealand and a holder of a temporary visa class 444. Ms Bartulin stated that she examined the relevant files of Centrelink and Human Services, and those relating to the applicant and the applicant's mother. She said that:
The files include information about Ms Khan's citizenship status, moving in and out of Australia, and nothing in those files suggests that the applicant in this proceeding, Ms Khan, ever applied for determination pursuant to section 7, paragraph (2E), and any such application would have to be made by, at the latest, 26 February 2004.
She said:
In any event, any such determination would have related to resident of Australia on a date or date between 26 February 2001 and 26 May 2001. Nothing in the relevant file certifies or states that during this period of time Ms Khan was ever residing in Australia.
It is part of the notes that:
The Secretary must otherwise make a determination under section 7, paragraph (2G) if the person is a protected special category visa holder.
It has already been established that that does not apply to Ms Khan. She further states that her:
Examination of the relevant files of Centrelink and the Department of Human Services has not disclosed any determination for the purpose of section 7, paragraph (2G), of the Act.
She said:
Save for section 7, there is, as far as I'm aware, no other provision in the Social Security Act concerned with a person's status as an Australian resident and, in particular, whether or not the person is, "residing in Australia". To my knowledge, there is no other statutory power conferred by the Social Security Act for the making of a determination about a person's residence in Australia. To my knowledge, there is also no statutory power conferred by that Act for the issue of a certificate about a person's residence in Australia on a particular date.
In relation to Centrelink certificates in particular, Ms Bartulin said:
It is my experience that determinations issued under section 7(2E), (F) and (G) are often described within Centrelink and the Department of Human Services as certificates.
She has attached a copy of letters and sample letters from Centrelink enclosing such certificates and sample certificates. She said that:
Each of the letters and samples state that the enclosed certificate is intended to serve two purposes. First, it establishes a person's residence status under the Social Security Act. Second, it establishes that the person is a permanent resident for the Australian Citizenship Act and each "certificate" reflects the terms of a determination issued under section 7(2E), (F) or (G) of the Social Security Act.
She said that this accords with her experience and:
Only a person who is a protected special category visa holder can ever be issued with such a certificate.
She said:
I've never heard of such a "certificate" being issued to a person who is not a protected special category visa holder.
She said:
To my knowledge, there is no legal requirement of administrative reason why any "certificate of residence" be issued for the purposes of the Social Security Act.
Then she said:
On the other hand, certificates for the purposes of determination to protect special category visa holders are issued by staff in the International Services section of Centrelink.
She noted that she, herself, does not make decisions or issue certificates in relation to special category visa holders, and she said that her role is to assist Centrelink International Services with the processes and policy advice. She referred to the involvement of Ms Khan, the applicant in this matter, with Centrelink and the Department of Human Services. She noted that:
On some occasions a claim for welfare benefits made before 26 February 2004 has been treated beneficially be Centrelink or the Department of Human Services as an application under section 7, paragraph (2E) of the Social Security Act.
She said:
In this instance it was not treated this way. I note, in any event, that if it had been treated this way for the reasons set out in paragraph 18 above –
and that is in her affidavit -
the application would not have been successful.
Paragraph 18 stated:
In any event, such determination would have related to residents in Australia on a date or dates between 26 February 2001 and 26 May 2001.
In her affidavit, Ms Bartulin stated that the letter in question, that is the letter dated 9 July 2013 to her from the Department of Human Services, stated that:
This letter is to confirm that for the purposes of the Social Security Act you are recorded on Centrelink records as residing in Australia on 13 November 2001. This is recorded under your child Centrelink reference number –
and then it gives the reference number.
This is an information service given under family assistance law.
Ms Bartulin went on to say:
The records of the relevant files do not contain –
and that is from Centrelink and the Department of Human Services -
do not contain any information explaining why the letter was sent.
She said that she:
spoke with the writer of the letter and inquired whether he had any recollection of sending the letter to Ms Khan on or about 9 July 2013, and the reply was the author said he had no recollection in that specific case.
Ms Bartulin went on to say that in her view:
The letter was not a determination under section 7 of the Social Security Act.
She said:
Among other things, it does not refer to Ms Khan residing in Australia on 26 February or in the three month period after that date.
She also said:
Nor is the letter a "certificate" about the applicant's residence in Australia. It does not certify anything. The letter simply purports to confirm what was recorded on Centrelink's records.
She concluded her affidavit by saying:
I am unaware of information notices issued under social security law. Those notices require customers to provide information to the Department of Human Services. My understanding is that the words "an information notice" are not included in correspondence where the Department of Human Services provides information to a customer on their request. The letter states that it is a notice "given under family assistance law". Family assistance law does not provide for such a notice, therefore, the reference is erroneous.
So that's the opinion of Ms Bartulin. On behalf of the applicant, Ms Hamilton submitted that the letter that I have just referred to and read out is or could be considered to be a certificate, as that term is generally understood. She said that although it does not refer to itself as a certificate, it is an authoritative document verifying the facts as stated therein for the purposes of the Social Security Act, which comes under the administration of Centrelink benefits.
She said, secondly, the certificate meets the requirements of the legislative instrument that I've already referred to, IMMI 07/037. She says that it meets the requirements of that instrument because it states that the applicant was, for the purposes of the Social Security Act, residing in Australia on a particular date. She says that that particular legislative instrument expressly does not limit the effectiveness of the certificate by reference to the date certified or when the certificate was issued. She said that Centrelink has the power to issue such a document to verify any person's status under the Social Security Act. Ms Hamilton went on to say that the certificates were issued under the transitional provisions of the relevant legislation.
So, basically, Ms Hamilton is saying that because the applicant received a letter dated 9 July 2013, that letter complied with the legislative requirements and, therefore, Ms Khan satisfies the provisions for permanent residency and should have been granted citizenship.
Mr Knowles, on behalf of the respondent, stated that the only documents that can satisfy the requirements of Item 1, paragraph (c) of Schedule 1 of IMMI 07/307 are the certificates set out in the template document that was referred to me earlier, and also the examples quoted by me and attached to Ms Bartulin's affidavit. He said that under Item 1, paragraph (c), document certificates issued under the Social Security Act contain determinations made under section 7(2E) or (2G) certifying that the applicant is residing in Australia on a particular date.
He said that the applicant has not provided evidence that she was issued with a determination under either of these provisions, and that she conceded that she was not the subject of a determination by the Secretary. Mr Knowles also referred to the Australian Citizenship Instructions, which I have already mentioned, that provide that in some cases eligible people are not aware that an assessment, being an assessment as to receive a determination under section 7(2E) or (2G) was undertaken, and where appropriate Centrelink will issue or reissue certificates to people who are assessed as eligible for a determination before a relevant date.
Mr Knowles went on to submit that as admitted by the applicant, she was not issued with a determination and cannot obtain the necessary certificate as she does not satisfy the criteria in section 7(2E) or (2G). Although she visited Australia for two short periods in 1996 and between 5 April 2001 and 27 April 2001, she did not commence residing in Australia until after her return to Australia in October 2001. Further, social security benefits were not claimed by her mother until after she commenced residing in Australia after returning in October 2001.
So it was submitted that as a consequence of that, the applicant is not eligible to be issued with a determination on section 7(2E)(a) as she was not residing in Australia, but temporarily absent on 26 February 2001; or under subsection (b) of section 7(2E) as she did not commence or recommence residing in Australia during the period of three months beginning on 26 February 2001; or under section 7(2G) as she was not an existing social security recipient who was residing in Australia as at 26 February 2001 but temporarily absent on that day and returned to Australia within 26 weeks of that date, as required by section 7(2B). It was submitted that, as a consequence, the applicant could not satisfy Item 1, paragraph (c) of Schedule 1 and was, therefore, not a permanent resident.
Having listened to the arguments and considered all the material before me, I am greatly assisted by the affidavit of Ms Bartulin in the sense that she is an experienced officer of Centrelink and the Department of Human Services, who has dealt with matters in this area for a long period of time, and I find that her description of the relevant legislation and the relevant procedures is persuasive. In relation to what is the basic issue before me, and that is the letter of 9 July 2013, I acknowledge that the letter says that:
This is to confirm that for the purposes of the Social Security Act 1991 you are recorded -
I agree with Mr Knowles and also the proposition put by Ms Bartulin in this affidavit, that merely stating "for the purposes of the Social Security Act 1991," in that letter does not, in my view, demonstrate that the letter is for the purposes of section 7 of the Social Security Act, which is the relevant section and in my view is required to be specified, in a certificate under the legislation. I note that the word "certificate" is not defined in the Act but I looked in the Macquarie Dictionary and the Macquarie Dictionary defines certificate as, among other things:
A writing on paper certifying to the truth of something or to status, qualifications, privileges -
The verb "to certify" among other things, the Macquarie Dictionary defines it as:
To guarantee, assert and to give reliable information of. To testify or to vouch for in writing to assure or inform with certainty.
So in addition to my view that that letter could not be construed as a letter under section 7 of the Social Security Act, which is required for a certificate in relation to an application for Australian citizenship, I agree with the respondent that there is nothing in that letter to indicate that the letter is certifying anything. It is merely making a statement that Ms King, as she then was or she was referred to in that letter, was recorded on Centrelink records as residing in Australia. To me, that certainly falls short of what is required as a document certifying the truth of what is required to be certified.
It merely states that Ms Khan, or Ms King as she was, was recorded on Centrelink records as residing in Australia on that particular day. So, in my view, merely stating that she is recorded on Centrelink records is not a certification, for the purposes of a determination. In addition to that, I note that as I have already stated, Ms Bartulin referred to the last sentence in that letter:
This is an information notice given under family assistance law.
Whilst nothing definitive comes from that sentence, I take into account Ms Bartulin's final paragraph of her affidavit where she says:
Generally speaking I am aware of information notices issued under social security law. These notices require customers to provide information to the Department of Human Services. My understanding is that the words "an information notice" are not included in correspondence where the Department of Human Services provides information to a customer on their request.
The inclusion of the sentence, "this is an information notice" suggests to me that it has not been provided by request under the relevant provisions of the legislative instrument, and also the reference to "given under family assistance law" suggests to me that the letter is not specifically in reference to a possible application for citizenship. In fact, there is no reference to citizenship in the letter, and the writer of the letter was unable to provide any assistance to Ms Bartulin regarding the circumstances of the letter being provided.
For those reasons, I conclude from that letter and looking at the letters that are included as templates, that the letter of 9 July 2013 is not a formal certificate and, therefore, is not a certificate of residence and is not issued for the purposes of section 7 of the Social Security Act. Therefore it cannot be a certificate under the legislative instrument, Item 1, paragraph (c) of Schedule 1 of that instrument being IMMI 07/037.
As a consequence, the applicant cannot be given a determination under section 7(2E) or (G) of the Social Security Act. Therefore, as she does not satisfy
Item 1, paragraph (c) of Schedule 1 of the Legislative Instrument, she is not a permanent resident under the Australian Citizenship Act 2007. Consequently, I find that under section 52 of the Australian Citizenship Act 2007, there is no provision for Ms Khan to make application to the Tribunal for review of the decision. I find that the Tribunal does not have jurisdiction to hear the application and, therefore, I dismiss the application under section 42A(4)(b) of the Administrative Appeals Tribunal Act 1975.
DECISION
The Tribunal dismisses the application for lack of jurisdiction.
I certify that the preceding 65 (sixty-five) paragraphs are a true copy of the reasons for the decision of G.D. Friedman .............................[Sgd].....................................
Associate
Dated 4/12/2014
Date of hearing 21 November 2014 Advocate for the Applicant Ms G Hamilton Solicitors for the Applicant Hamiltons Migration Law Counsel for the Respondent Mr R Knowles Solicitors for the Respondent Australian Government Solicitor
Key Legal Topics
Areas of Law
-
Immigration & Refugee Law
Legal Concepts
-
Jurisdiction
-
Res Judicata
-
Immigration Status
0
0
0