Rasmini and Minister for Home Affairs (Citizenship)
[2018] AATA 3465
•14 September 2018
Rasmini and Minister for Home Affairs (Citizenship) [2018] AATA 3465 (14 September 2018)
Division:General Division
File Number: 2018/1680
Re:Ni Kadek Rasmini
APPLICANT
AndMinister for Home Affairs
RESPONDENT
DECISION
Tribunal:Deputy President S A Forgie
Date:14 September 2018
Place:Melbourne
Upon being satisfied that the applicant’s application lodged on 4 April 2018 for review of a decision by a delegate of the respondent dated 16 March 2018 under the Australian Citizenship Act 2007 has no reasonable prospect of success, the Tribunal decides to:
dismiss the application under s 42B(1)(b) of the Administrative Appeals Tribunal Act 1975.
[sgd]
S A FORGIE
Deputy President
PRACTICE AND PROCEDURE – JURISDICTION – whether application made to the Tribunal for review within the prescribed time – determination of date on which the respondent’s decision was deemed to have been received by applicant – application not made within prescribed time and no power to extend that time.
Legislation
Administrative Appeals Tribunal Act 1975 ss 42B, 42B(1) and 42B(1)(b)
Australian Citizenship Act 2007 ss 3, 5(1), 5(1)(a) to (c), 5(2), 21, 21(1), 21(2)(c), 21(3) to (8), 22, 22(1), 22(1)(a), 22(1)(c), 22(1A), 22(1B), 22(1B)(a), 22(1B)(b), 22(9), 22A, 22B and 23
Migration Act 1958 ss 5(1), 29(1), 29(2), 29(3), 30(1), 30(2), 31, 31(1), 31(2), 79 and 82(6)
Migration Regulations 1994 rr 1.07, 2.01 and 2.01(1)(a); Schedule 1, Item 1201; Schedule 2, Items 100.511, 100.611 and 773.511
Cases
Re Merante and Secretary, Department of Employment [2017] AATA 1178
REASONS FOR DECISION
Deputy President S A Forgie
On 11 June 2007, Ms Rasmini first entered Australia as the holder of a permanent visa, being a permanent Partner visa (subclass 100) (Partner visa). She first applied for conferral of Australian citizenship in December 2017 but was advised by the Department of Home Affairs (Department) that she needed to obtain a new birth certificate and translations of certain documents. On her application, she stated that she was leaving Australia on 1 February 2018 for a visit of approximately 14 days so that she could visit her family. Ms Rasmini’s three children travelled with her and, as planned, they all returned to Australia on 19 February 2018 to rejoin her partner and the children’s father, Mr Rodney Kean. On her return at Sydney Airport, an officer of the Department advised her that she could not re-enter Australia as she had not applied for a Resident Return visa (Subclass 155) (RRV) before she left. An RRV is a travel facility for those who are Australian permanent residents but must be renewed each five years. Ms Rasmini was given a 30 day border visa[1] at the airport so that she could rejoin Mr Kean and to apply for an RRV.
[1] I understand this to be a Border (Temporary) (Class TA) (subclass 773) visa: Migration Regulations 1994; Schedule 1, Item 1201.
On 13 March 2018, Ms Rasmini again applied for Australian citizenship by conferral. A delegate of the Minister for Home Affairs refused her application on 16 March 2018 as she did not satisfy the general residence requirement set out in s 22 of the Australian Citizenship Act 2007 (AC Act) and as required by s 21(2)(c). In particular, Ms Rasmini did not satisfy the mandatory requirement under s 22(1)(c) that she was present in Australia as a permanent resident for the period of 12 months immediately before the day she made her application. Ms Rasmini lodged an application for review of the delegate’s decision on 4 April 2018.
On behalf of the Minister, Mr Wilson submitted that I should dismiss Ms Rasmini’s application under s 42B of the Administrative Appeals Tribunal Act 1975 (AAT Act) on the ground that it is misconceived and has no reasonable prospects of success. Mr Kean argued that I should not take that course. Although he did not challenge the conclusion that Ms Rasmini had not been a permanent resident while she held a border visa, Mr Kean protested about the way in which that had come about. She should not have lost her Partner visa simply because she did not obtain an RRV before she left Australia. Mr Kean said that he had not been able to find the email advising them that would be the case. The Department had not advised them when Ms Rasmini told them when making her first application for citizenship that she would travel to Bali. The Department has the records and it should have flagged the issue, Mr Kean submitted.
At the hearing of the Minister’s application for dismissal, I explained to Mr Kean how Ms Rasmini came to be in the situation that she was not a permanent resident for a period of time. I also explained that I had no discretion in the matter and that there was no conclusion open on the matter other than that Ms Rasmini did not satisfy the general residence requirement. As satisfaction of the general residence requirement was mandatory, her application for Australian citizenship could not succeed even if she met all of the other criteria for eligibility under s 21. Neither the Minister and his delegate nor the Tribunal has any discretion to consider the circumstances in which Ms Rasmini came to lose her permanent visa for the period between her departure from Australia on 1 February 2018 and her being granted an RRV on 9 March 2018. Therefore, I was satisfied that her application for review of the delegate’s decision had no reasonable prospects of success and, relying on s 42B(1)(b) of the AAT Act, decided to dismiss it. I said that I would put my reasons in writing so that Mr Kean could raise his concerns with the Ombudsman as he indicated he wished to do.
ADMINISTRATIVE APPEALS TRIBUNAL ACT 1975
Section 42B(1) of the AAT Act provides, in so far as it is relevant to the circumstances of this case:
“The Tribunal may dismiss an application for the review of a decision, at any stage of the proceeding, if the Tribunal is satisfied that the application:
(a) …
(b) has no reasonable prospect of success;
(c) …”
In Re Merante and Secretary, Department of Employment,[2] I considered principles relating to what it means for an application to have no reasonable prospect of success.[3] I adopt that reasoning but, for the present case, it is enough to refer to a broad conclusion that I drew that, in considering an application under s 42B(1)(b), it is not:
“… appropriate to undertake a full scale consideration of the merits of the application [for review of the decision]. If, on the facts as asserted by the applicant on a view of the law that is arguable - or that at least leaves open some room for doubt as to whether it is correct or not - the applicant would have some measure of success in varying or setting aside the decision under review, it cannot be said that an applicant has no prospect of success. It does not matter at this stage whether the assertions of fact are supported by evidence or not. Evidence is a matter for any substantive hearing.”[4]
[2] [2017] AATA 1178
[3] [2017] AATA 1178 at [12]-[17]
[4] [2017] AATA 1178 at [17]
With that principle in mind, I have considered whether Ms Rasmini’s application for review of the decision refusing her application for Australian citizenship had a reasonable prospect of success. I have accepted the facts as given to me without question.
AUSTRALIAN CITIZENSHIP ACT 2007
The general residence requirement
Division 2 of Part 2 of the AC Act provides for the acquisition of Australian citizenship by application. A person may make an application to the Minister to become an Australian citizen.[5] The delegate has not made any assessment as to whether Ms Rasmini’s circumstances come within the specific circumstances that are the subject of ss 21(3) to (8). He or she determined Ms Rasmini’s application solely by reference to s 21(2)(c) of the AC Act. Section 21 sets out the general eligibility criteria that Ms Rasmini must satisfy before being eligible to become an Australian citizen. The only criterion in issue in this matter is whether she satisfies the “general residence requirement” as required by s 21(2)(c) at the time she made her application.[6]
[5] AC Act; s 21(1)
[6] Satisfaction of the special residence requirement under ss 22A or 22B or of the defence service requirement under s 23 would also satisfy s 22(1)(c) but there was no suggestion that Ms Rasmini’s circumstances satisfy them and I find that they do not.
The “general residence requirement” is set out in s 22 of the AC Act. Section 22(1) provides:
“Subject to this section, for the purposes of section 21 a person satisfies the general residence requirement if:
(a)the person was present in Australia for the period of 4 years immediately before the day the person made the application; and
(b)the person was not present in Australia as an unlawful non-citizen at any time during that 4 year period; and
(c)the person was present in Australia as a permanent resident for the period of 12 months immediately before the day the person made the application.”
Of these criteria, a delegate of the Minister has accepted that Ms Rasmini is taken to have fulfilled ss 22(1)(a) and (c). The only criterion of which the delegate was not satisfied is that specified by s 22(1)(c). He or she was not satisfied because the records held by the Department of Home Affairs recorded that Ms Rasmini had not held a valid permanent resident visa between 1 February 2018 and 9 March 2018.
Amelioration of the permanent residence requirement
The operation of s 22(1) is ameliorated by ss 22(1A) and (1B). In this instance, only s 22(1B) is relevant for it relates to s 22(1)(c). Section 22(1B) provides:
“Overseas absences
…
(1B)If:
(a)the person was absent from Australia for a part of the period of 12 months immediately before the day the person made the application; and
(b)the total period of the absence or absences was not more than 90 days; and
(c)the person was a permanent resident during each period of absence;
then, for the purposes of paragraph (1)(c), the person is taken to have been present in Australia as a permanent resident during each period of absence.”
It is not in issue that Ms Rasmini met ss 22(1B)(a) and (b) but it is in issue whether she was a permanent resident during each period of absence.
The Minister is given a discretion by s 22(9) to treat certain periods as periods within which Ms Rasmini was in Australia as a permanent resident. In so far as it applies to her circumstances, s 22(9) provides:
“If the person is the … defacto partner … of an Australian citizen at the time the person made the application, the Minister may treat a period as one in which the person was present in Australia as a permanent resident if:
(a)the person was a … defacto partner of that Australian citizen during that period; and
(b) the person was not present in Australia during that period; and
(c) the person was a permanent resident during that period; and
(d)the Minister is satisfied that the person had a close and continuing association with Australia during that period.”
Section 22(9) would only assist Ms Rasmini if she were outside Australia but a permanent resident. The whole issue in this case turns on whether she was a permanent resident.
What is a “permanent resident”?
The expression “permanent resident” has the meaning given by s 5(1) of the AC Act,[7] which provides:
[7] AC Act; s 3
“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
(b)both:
(i)the person is not present in Australia at that time and holds a permanent visa at that time; and
(ii)the person has previously been present in Australia and held a permanent visa immediately before last leaving Australia; or
(c)the person is covered by a determination in force under subsection (2) at that time.”
Section 5(2) authorises the Minister to make a legislative instrument determining that persons who hold certain specified visas and who satisfy specified requirements are, or are during a specified period, persons to whom that subsection applies. Ms Rasmini’s Partner visa is not one of the visas that has been specified. That means that Ms Rasmini is not a person who satisfies the requirements of s 5(1)(c). If she is to meet the requirements of ss 5(1)(a) or (b), she must hold a permanent visa.
What is a permanent visa?
Section 29(1) of the Migration Act 1958 (Migration Act) provides that the Minister may grant a non-citizen permission, which is known as a “visa” to do travel to and enter Australia or to remain in Australia or both. Without limiting s 29(1), the visa may be one to travel to Australia during a prescribed or specified period and to remain in Australia either for a prescribed or specified period or indefinitely but only if the person enters Australia during that first mentioned prescribed or specified period.[8] The expression “permanent visa” has the meaning given by the Migration Act.[9] Section 5(1) of that legislation provides that the expression has the meaning given by s 30(1). 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.”
[8] Migration Act; s 29(2)
[9] AC Act; s 3
Regard should also be had to s 79 of the Migration Act which provides:
“If the holder of a visa leaves Australia the holder may only re-enter Australia because of the visa if:
(a)the visa is permission for the re-entry; and
(b)the visa is in effect on re-entry.”
There are prescribed classes of visa[10] as well as classes of visa provided for in the Migration Act.[11] In so far as it is relevant to the circumstances of this case, r 2.01 of the Migration Regulations 1994 (Migration Regulations) provides that, for the purposes of s 31 of the Migration Act, the prescribed classes of visa are those set out in the respective items in Schedule 1 to those regulations.[12] Part 1 of Schedule 1 sets out permanent visas. A reference to a visa of a particular subclass, as is the visa held by Ms Rasmini, is a reference to a visa granted on satisfaction of the criteria for the grant of the visa as set out in the Part of Schedule 2 bearing the number of the subclass.[13] In this case, that is the Part headed “Subclass 100-Partner”. That is the Part under which Ms Rasmini was granted her Partner visa.
[10] Migration Act; s 31(1)
[11] See Migration Act; s 31(2)
[12] Migration Regulations; r 2.01(1)(a)
[13] Migration Regulations; r 1.07
In addition to setting out the criteria that must be met before a Partner visa may be granted, the Part sets out when the visa is in effect and the conditions that attach to it. In particular, Item 100.511 provides that the Partner visa is a:
“Permanent visa permitting the holder to travel to and enter Australia for a period of 5 years from the date of the grant.”[14]
This is a provision of the sort referred to in s 29(3) that I have set out at [15] above. If the applicant for a Partner visa is outside Australia at the time of grant, first entry must be made before the date specified by the Minister for that purpose.[15] A Partner visa is a visa that permits its holder both to remain in Australia and to leave and re-enter Australia but only in the terms in which the visa is granted i.e. to leave Australia during the period of five years from its grant and to travel to, and re-enter Australia, within that same period of five years.
[14] Migration Regulations; Schedule 2, Item 100.511
[15] Migration Regulations; Schedule 2, Item 100.611
That means that, the holder of a Partner visa may remain in Australia indefinitely provided he or she does not leave the country. If its holder wishes to leave the country and return, he or she may do that at any time within five years from the date of the grant. In Ms Rasmini’s case, that meant that she could remain in Australia for ever. She could also leave at any time in the five year period from the date on which she was granted the visa being some time before her first entry as the holder of that visa on 11 June 2007, and re‑enter the country. When she left Australia outside that five year period in January 2017, however, the Partner visa gave her no right or entitlement to enter the country on her return. That was clear from the terms of the Partner visa itself.
Once Ms Rasmini left Australia after the five year period, her Partner visa ceased to be in effect. That follows from s 82(6) of the Migration Act when it provides:
“A visa to travel to and enter Australia (whether also a visa to remain in Australia) during a particular period or until a particular date ceases to be in effect if the holder leaves Australia after that period or date.”
What were the consequences of Ms Rasmini’s being granted a border visa?
A Subclass 773 border visa is a temporary visa granted to Ms Rasmini to enable her to re‑enter Australia and to remain for a period not exceeding 30 days from the date of its grant.[16] It enabled her to remain in Australia so that she could apply for a Resident Return visa.[17] Her Partner visa no longer gave her the right or entitlement to remain in Australia because it had ceased to be in effect by virtue of s 82(6). Her right or entitlement to remain in Australia rested entirely on a temporary visa in the form of a Subclass 773 border visa.
[16] Migration Regulations; Schedule 2; Item 773.511
[17] The expression “temporary visa” is defined in s 30(2) of the Migration Act.
That meant that Ms Rasmini did not hold a permanent visa in the period between her leaving Australia on 1 February 2018 and her being granted an RRV on 9 March 2018. Her Partner visa had ceased to be of effect and the Subclass 773 border visa was a temporary visa. Therefore, she did not satisfy the requirements of s 5(1) of the AC Act and could not be regarded as a permanent resident. The AC Act neither expressly nor implicitly confers a discretion on either the Minister or on the Tribunal to change that outcome. Therefore, Ms Rasmini could not satisfy the requirements of s 22(1)(c) of the AC Act because she had not been present in Australia as a permanent resident for the period of 12 months immediately before she lodged her application for citizenship on 13 March 2018.
DECISION
In view of my conclusion, Ms Rasmini’s application cannot succeed on the law. Therefore, I decided to dismiss it under s 42B(1)(b) of the AAT Act on the basis that I am satisfied that it did not have a reasonable prospect of success.
| I certify that the preceding twenty three [23] paragraphs are a true copy of the reasons for the decision herein of Deputy President S A Forgie. |
...........[sgd]......................................................
Personal Assistant
Dated: 14 September 2018
| Date of hearing: | 27 July 2018 |
For the Applicant | Mr Rodney Kean |
| Solicitor for the Respondent: | Mr David Wilson Australian Government Solicitor |
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