Jiang and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Citizenship)

Jiang and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Citizenship) [2020] AATA 977 (27 April 2020)
Division:GENERAL DIVISION
File Number(s): 2019/2654
Re:Jilinna Jiang
APPLICANT

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

DECISION
Tribunal:Mrs J C Kelly, Senior Member
Date:27 April 2020
Place:Sydney

The decision under review is affirmed.
...........[sgd].............................................................
Mrs J C Kelly, Senior Member
CATCHWORDS
CITIZENSHIP – Refusal of Australian citizenship by conferral – applicant is a New Zealand citizen – applicant holds TY 444 Special Category temporary visa – whether applicant was a permanent resident at the time the citizenship application was made – whether the applicant was a permanent resident at the time the decision was made – citizenship by birth – citizenship policy – reviewable decision affirmed
LEGISLATION
Administrative Appeals Tribunal Act 1975 (Cth) – s 37
Australian Citizenship Act 2007 (Cth) – ss 5, 5(2)(a), 12(1)(b), 17, 19D, 21(5), 21(5)(b), 24(1), 24(1A), 25, 30, 33, 34, 36(1), 37(1), 52
Migration Act 1958 (Cth) – ss 30, 30(2), 32(1), 32(2)
Migration Regulations 1994 (Cth) – sch 2, cl 189.21, 189.23
Social Security Act 1991 (Cth) – ss 7, 7(2A), 7(2B), 7(2C), 7(2D
SECONDARY MATERIALS
Department of Immigration and Border Protection, Citizenship Policy (1 June 2016)
Department of Immigration and Border Protection, Australian Citizenship (Permanent Resident Status) Instrument (1 October 2017)
REASONS FOR DECISION
Mrs J C Kelly, Senior Member
27 April 2020

The applicant, Jilinna Jiang, is 16 years old. She was born in Australia in March 2004 but is a national of New Zealand and has held a TY 444 Special Category visa (the visa) since birth. The applicant’s father is a New Zealand national, and her mother is a Chinese national.
The applicant’s mother applied for Australian citizenship by conferral on 31 May 2017. She included the applicant in that application. The application was refused by a delegate of the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (the respondent) on 9 May 2019. The applicant applied for review of that decision in this Tribunal on 14 May 2019. She was represented by her mother.
The delegate decided that the applicant does not satisfy the two requirements for Australian citizenship set out in s 21(5)(b) of the Australian Citizenship Act 2007 (Cth) (the Act), for a person aged 18 and under. Those requirements are that she was a permanent resident:
(i)at the time the citizenship application was made (s 21(5)(b)(i)), and
(ii)at the time the decision is made (s 21(5)(b)(ii)).
The delegate noted that the applicant had never obtained permanent residency in Australia.
The “time the decision is made” is the time the Tribunal makes its decision.
THE ISSUE TO BE DECIDED
The issue to be decided is whether the applicant satisfies the two requirements in s 21(5)(b) of the Act.
THE EVIDENCE
The applicant provided the following evidence: an email from the applicant’s mother dated 10 January 2020 attaching copies of the applicant’s Year 10, Semester 1 2019 school reports and a copy of the applicant’s New Zealand passport issued on 26 April 2017, and emails from the applicant’s mother dated 9 August 2019 and 12 August 2019.
In addition to the documents produced pursuant to s 37 of the Administrative Appeals Tribunal Act 1975 (Cth), the Respondent provided a copy of the applicant’s Movement Records which show that she travelled overseas in 2006 and 2018.
CONSIDERATION
Section 24(1) of the Act provides that Minister must approve or refuse a person becoming an Australia citizen. Relevantly, section 24(1A) of the Act provides that the Minister must not approve the person becoming an Australian citizen unless the person is eligible to become an Australian citizen under subsection 21(5) (emphasis added).
The Citizenship Policy provides that, for applications received on or after 9 November 2009, a person under the age of 18 years applying for Australian citizenship by conferral under s 21(5), must be a permanent resident (that is, they must have activated their permanent visa by entering Australia or by being granted the permanent visa while onshore) at the time of application and at the time of decision to be eligible for Australian citizenship. (Emphasis added.)
Section 32(1) of the Migration Act 1958 (Cth) provides that:
There is a class of temporary visas to be known as special category visas (emphasis added).
Section 32(2) of the Migration Act 1958 sets out various alternative criteria that the Minister must be satisfied of in order to grant a special category visa. It is unnecessary to detail the criteria. The applicant has satisfied them.
Section 30(2) of the Migration Act 1958 (Cth) provides guidance as to what constitutes a temporary visa:
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, to remain:
(a) during a specified period; or
(b) until a specified event happens; or
(c) while the holder has a specified status.
It is accepted that the applicant has been the holder of the visa since birth. The important point is that the special category visa is a temporary visa. Therefore, the applicant is not now the holder of, nor has she ever been the holder of, a permanent visa in Australia.
Relevantly, s 5 of the Act defines a permanent resident as follows:
(1)    For 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
c)the person is covered by a determination in force under subsection (2)   at that time.
(2)    The Minister may, by legislative instrument, determine that:
a)persons who hold a special category visa or a special purpose visa; or
…
and who satisfy specified requirements are, or are during a specified period, persons to whom this subsection applies.
The Minister has made a legislative instrument pursuant to s 5(2)(a) of the Act but it does not apply to the applicant. The Australian Citizenship (Permanent Resident Status) Instrument (the Instrument) commenced on 1 October 2017. Schedule 1 of that Instrument details circumstances when certain holders of the visa are determined to be permanent residents. Relevantly, clause 1 of the Instrument provides that a holder of the visa is a permanent resident if they are:
A New Zealand citizen who is a protected SCV holder within the meaning of section 7 of the Social Security Act 1991
Section 7 of the Social Security Act 1991(Cth) defines a protected SCV holder as a person within the meaning of ss 7(2A), (2B), (2C) and (2D), which provide as follows:
(2A) A person is a protected SCV holder if:
a)the person was in Australia on 26 February 2001, and was a special category visa holder on that day; or
b)the person had been in Australia for a period of, or for periods totalling, 12 months during the period of 2 years immediately before 26 February 2001, and returned to Australia after that day.
(2B) A person is a protected SCV holder if the person:
a)was residing in Australia on 26 February 2001; and
b)was temporarily absent from Australia on 26 February 2001; and
c)was a special category visa holder immediately before the beginning of the temporary absence; and
d)was receiving a social security payment on 26 February 2001; and
e)returned to Australia before the later of the following:
(i) the end of the period of 26 weeks beginning on 26 February 2001;
(ii) if the Secretary extended the person's portability period for the payment under section 1218C--the end of the extended period.
(2C) A person who commenced, or recommenced, residing in Australia during the period of 3 months beginning on 26 February 2001 is a protected SCV holder at a particular time if:
a)the time is during the period of 3 years beginning on 26 February 2001; or
b)the time is after the end of that period, and either:
(i) a determination under subsection (2E) is in force in respect of the person; or
(ii) the person claimed a payment under the social security law during that period, and the claim was granted on the basis that the person was a protected SCV holder.
(2D) A person who, on 26 February 2001:
a)was residing in Australia; and
b)was temporarily absent from Australia; and
c)was not receiving a social security payment;
is a protected SCV holder at a particular time if:
d)the time is during the period of 12 months beginning on 26 February 2001; or
e)the time is after the end of that period, and either:
(i) at that time, a determination under subsection (2E) is in force in respect of the person; or
(ii) the person claimed a payment under the social security law during that period, and the claim was granted on the basis that the person was a protected SCV holder.
The applicant cannot satisfy ss 7(2A), (2B), (2C), or (2D) of the Social Security Act 1991 (Cth) because she was born on 30 March 2004, and was not present in Australia on or before 26 February 2001.
For the above reasons, the applicant was not a permanent resident at the time of her application for citizenship, or at the time of the decision on the application.
Applicant’s argument in relation to eligibility for permanent residency via Skilled Independent (class 189) (New Zealand) visa
In her statement dated 10 January 2020, the applicant’s mother put the following argument:
According to the additional new pathway for New Zealand citizens, which was available from 1/7/2017, New Zealand citizens who were granted the Special Category Visa subclass 444, who were already residents in Australia on or before 19/2/2016 and who have been a resident in Australia for at least five years, can apply be Australia citizenship without requiring a permanent resident visa and if their children were under 16 years old, they can apply for a citizenship with their parents via conferral form.
As of 1 July 2017, holders of the TY 444 visa are eligible to apply for permanent residency in Australia by applying for the Skilled Independent (class 189) (New Zealand) visa (the 189 visa) if they satisfy certain criteria, including that they have resided in Australia for 5 years, and have a taxable income at or above an income threshold for all 4 income years before lodging an application.[1]
[1] See cl 189.21 and 189.23 of the Schedule 2 of the Migration Regulations 1994 (Cth).
The applicant is not the holder of a 189 visa. There is no evidence that she would satisfy the requirements for the 189 visa. She is a school student. There is no suggestion in the evidence that she would satisfy the taxable income requirements needed for the 189 visa.
There is no evidence that the applicant has applied for or has been granted a 189 visa as a member of the family unit. Her mother is a Chinese national and does not hold New Zealand citizenship. There is no evidence that the applicant’s father, who is a New Zealand citizen, holds, or has ever applied for, a 189 visa.
This “pathway” is not available to the applicant at this time.
Citizenship by birth
During the conferencing process, the issue of citizenship by birth arose. The issue was helpfully addressed in the Respondent’s Statement of Facts, Issues and Contentions. Section 12(1)(b) of the Act sets out the requirements for citizenship by birth:
(1) A person born in Australia is an Australian citizen if and only if:
……..
(b) the person is ordinarily resident in Australia throughout the period of 10 years beginning on the day the person is born.
The applicant may satisfy the requirements for citizenship by birth. The respondent accepted that the applicant has been ordinarily resident in Australia throughout the period of 10 years beginning on the day she was born. The Travel Movement Records of the applicant demonstrate that is so.
A person may make an application to the Minister for evidence of the person’s Australian citizenship pursuant to s 37(1) of the Act. The Minister may give the person a notice stating that the person is an Australian citizen at a particular time.
As discussed during the hearing, it is open to the applicant to make an application pursuant to s 37(1) of the Act for evidence of her Australian citizenship. Ms Gawidziel who represented the Minister said at the hearing that Form 119 is the appropriate application form.
Also as discussed at the hearing, there is no right of review to this Tribunal if an application to the Minister pursuant to s 37(1) of the Act is unsuccessful. Section 52 of the Act provides that an application for review may be made to the Administrative Appeals Tribunal in relation to decisions made under ss 17, 19D, 24, 25, 30, 33, 34 or 36(1) of the Act. Section 37 is not included. The Tribunal has no jurisdiction to hear such review. The relevance of that discussion was that legally, the Tribunal could not consider whether the applicant satisfied the requirements for citizenship by birth.
CONCLUSION
For the above reasons, the applicant has never held a permanent visa. She was not a permanent resident at the time of her citizenship application and is not a permanent resident at the time of this decision. She does not satisfy the requirements of s 21(5)(b) of the Act. The effect of s 24(1A) of the Act is that the Minister, and the Tribunal on reviewing the delegate’s decision, must not approve the applicant becoming an Australian citizen
Therefore, the decision under review is affirmed.

I certify that the preceding 31 (thirty -one) paragraphs are a true copy of the reasons for the decision herein of Mrs J C Kelly, Senior Member

........................[sgd]................................................
Associate
Dated: 27 April 2020

Date(s) of hearing: 7 April 2020

Advocate for the Applicant: Ms Junhua Jiang

Solicitors for the Respondent: Ms K Gawidziel-Australian Government Solicitor

[2020] AATA 977

27 April 2020

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Jurisdiction

Procedural Fairness

Statutory Construction

Standing

Date(s) of hearing:	7 April 2020
Advocate for the Applicant:	Ms Junhua Jiang
Solicitors for the Respondent:	Ms K Gawidziel-Australian Government Solicitor