Kim and Minister for Immigration and Citizenship
[2013] AATA 568
•15 July 2013
[2013] AATA 568
Division GENERAL ADMINISTRATIVE DIVISION File Numbers
2013/0561 and 2013/0562
Re
Jae Min Kim and Jae Won Kim
APPLICANT
And
Minister for Immigration and Citizenship
RESPONDENT
DECISION
Tribunal Ms N Bell, Senior Member
Date 15 July 2013 Place Sydney The Tribunal affirms the decision under review.
......[Sgd]..................................................................
Ms N Bell, Senior Member
CATCHWORDS
IMMIGRATION AND CITIZENSHIP – application for citizenship by conferral - non- permanent resident – whether applicants held a permanent visa – applicants held temporary visas – decision under affirmed
LEGISLATION
Australian Citizenship Act 2007 (Cth), ss 21, 21(5)
Migration Act 1958 (Cth), ss 30, 37, 73
REASONS FOR DECISION
Ms N Bell, Senior Member
14 August 2013
At the conclusion of the hearing of this application the terms of the decision intended to be made and the reasons for it were stated orally. After service upon the parties of a copy of the decision that was made, the Respondent, pursuant to subsection 43(2A) of the Administrative Appeals Tribunal Act 1975, requested that the Tribunal furnish it with a statement in writing of the reasons of the Tribunal for the decision.
The following statement of reasons, amended and reordered to better exhibit the Tribunal’s reasoning, is drawn from the transcript of the proceedings by Merrill Corporation, the Commonwealth Reporting Service.
Jae Min Kim and Jae Won Kim, brothers, seek review of the decision of the Minister to refuse their applications for Australian citizenship. Both were under 18 years of age when they applied for Australian citizenship on 18 January 2013.
Section 21(5) of the Australian Citizenship Act 2007 (Cth) requires that persons under the age of 18 be permanent residents at the time of making the application for citizenship, at the time of the Minister’s decision, and, it follows, at the time of this Tribunal’s decision making.
Section 5 of the Citizenship Act, provides that a person is a permanent resident at a particular time if the person is present in Australia at that time, and holds a permanent visa.
Section 3 of the Citizenship Act defines “permanent visa” as having the same meaning as it has under the Migration Act 1958 (Cth).
Section 30(1) of the Migration Act provides:
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.
Section 30(2) of the Migration Act provides:
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.
Jae Min and Jae Won Kim have bridging visas, requiring them to “depart by a specified date”.
Relevantly, section 37 of the Migration Act provides:
There are classes of temporary visas, to be known as bridging visas, to be granted under Subdivision AF.
Section 73 of the Migration Act provides:
If the Minister is satisfied that an eligible non-citizen satisfies the criteria for a bridging visa as prescribed under subsection 31(3), the Minister may grant a bridging visa permitting the non-citizen to remain in, or to travel to, enter and remain in Australia:
(a) during a specified period; or
(b) until a specified event happens.
Mrs Kim, the mother of Jae Min and Jae Won Kim said that she has been living in Australia for more than 10 years, and that this indicated permanent residence which would flow to her sons. However, she also holds a bridging visa.
She sought to advance an argument that the use of the word “may” in sections 30(1) and (2) indicates a discretion to regard a bridging visa as a permanent visa. I do not accept this submission. Bridging visas are clearly classed as temporary visas in section 37 of the Migration Act.
The combined effect of the provisions of the Citizenship Act and the Migration Act, extracted above, is that for a person under 18 years to be eligible for Australian citizenship, the person must hold a permanent visa. The bridging visas held by Jae Min and Jae Won Kim are not permanent visas. It follows that they are not eligible for Australian citizenship.
DECISION
The Tribunal affirms the decision under review.
I certify that the preceding 15 (fifteen) paragraphs are a true copy of the reasons for the decision herein of SM Bell. ......[Sgd]..................................................................
Associate
Dated 14 August 2013
Date of hearing 15 July 2013 Advocate for the Applicant Mrs O Kyong Shin Solicitors for the Respondent S Kikkert, DIAC In- house Litigation
0
0
0