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

This matter concerned an application for Australian citizenship by conferral made by a New Zealand citizen who held a Special Category visa (subclass 444). The applicant sought review of the Minister's decision to refuse her application. The Tribunal, presided over by Senior Member Mrs J C Kelly, was required to determine whether the applicant met the eligibility requirements for citizenship by conferral, specifically whether she was a permanent resident at the time of her application and at the time of the decision.

The central legal issue was whether the applicant, as a holder of a Special Category visa, qualified as a "permanent resident" for the purposes of the Australian Citizenship Act 2007 (Cth). This required the Tribunal to consider the definition of permanent resident under section 5 of the Act and the nature of the Special Category visa under the Migration Act 1958 (Cth). The Tribunal also had to consider the relevant Citizenship Policy, which stipulated that applicants under 18 must be permanent residents at both the time of application and decision.

The Tribunal reasoned that a Special Category visa is classified as a temporary visa under section 30(2) of the Migration Act 1958. Consequently, the applicant had never held a permanent visa in Australia. Section 5 of the Citizenship Act defines a permanent resident as a person present in Australia who holds a permanent visa, or who is covered by a legislative determination. While a legislative instrument exists that can deem certain Special Category visa holders as permanent residents, the Tribunal found that this instrument did not apply to the applicant. Therefore, the applicant did not satisfy the definition of a permanent resident under the Act.

As the applicant did not meet the permanent residency requirements stipulated in section 21(5)(b) of the Citizenship Act, and section 24(1A) of the Act mandates that the Minister must not approve citizenship unless the person is eligible under section 21(5), the Tribunal affirmed the decision under review. The Tribunal also noted that it lacked jurisdiction to consider citizenship by birth, as applications made under section 37 of the Act are not reviewable by the Administrative Appeals Tribunal.