Somai and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Citizenship)
[2020] AATA 4087
•14 October 2020
Somai and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Citizenship) [2020] AATA 4087 (14 October 2020)
Division:GENERAL DIVISION
File Number(s): 2019/2430
Re:Adil Somai
APPLICANT
AndMinister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
RESPONDENT
DECISION
Tribunal:Emeritus Professor P A Fairall, Senior Member
Date:14 October 2020
Place:Sydney
The Tribunal sets aside the decision under review and remits the matter to the Minister for further processing on the basis that the applicant was a permanent resident when the application for citizenship was made.
................................[SGD]..........................................
Emeritus Professor P A Fairall, Senior Member
CATCHWORDS
CITIZENSHIP – eligibility – where application for Australian citizenship by conferral is refused – failure to meet permanent resident requirement – where applicant departed Australia before application was received by Department – issue of when the application was made –meaning of the phrase ‘at the time the person made the application’ – whether when posted by applicant or when received by Department - decision under review set aside and remitted
LEGISLATION
Acts Interpretation Act 1901(Cth) ss 36, 37
Australian Citizenship Act 2007 (Cth) ss 3, 5, 21(2), 22, 46
Migration Act 1958 (Cth) ss 5, 30(1), 79, 82(6)
CASES
Camden London Borough Council v ADC Estates (1990) 88 LGR 956
North West Traffic Area Licensing Authority v Brady [1981] RTR 256
Project Blue Sky v Australian Broadcasting Authority [1998] HCA 28
Rasmini and Minister for Home Affairs (Citizenship) [2018] AATA 3465
Secretary, Department of Family and Community Services v Haagar [2001] FCA 1284
Secretary, Department of Family and Community Services v Rogers (2000) 104 FCR 272
SZICV v Minister for Immigration & Anor [2006] FMCA 1063
Wang and Minister for Immigration and Border Protection (Citizenship) [2017] AATA 730
REASONS FOR DECISION
Emeritus Professor P A Fairall, Senior Member Paul Fairall
14 October 2020
INTRODUCTION
This case involves a decision by a delegate of the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (the Minister), rejecting the applicant’s application for citizenship on the ground that he was not a permanent resident at the time he made the application.
The background to the case is as follows. The applicant is married to Mrs Natacha Somai. On 6 February 2013, the applicant and Mrs Somai were granted visas under the Migration Act 1958 (Cth) (the Migration Act).[1] Mrs Somai was granted a Skilled (Migrant) (class VE); subclass 176 (Skilled Sponsorship) Permanent visa. The applicant is named as the Secondary applicant on Mrs Somai’s visa.[2] The details of their respective visas are listed in the Visa Grant Notice attached to the letter of 6 February 2013, and includes the following:
About your visa
You have been granted a permanent visa which allows you to remain in Australia indefinitely. This visa allows you to travel to and enter Australia as many times as you want until 06 February 2018. If you wish to travel to Australia after this expiry date, you will need to apply for, and be granted a Resident Return Visa (RRV). Further information is available on our website…[3].
[1] ST3/4.
[2] ST3/6.
[3] ST3/8.
The five-year travel facility therefore ran from 6 February 2013 to 6 February 2018.
On 24 April 2013, the applicant and Mrs Somai arrived in Australia to take up permanent residence.[4]
[4] T2/6.
During 2017, the applicant completed an Application Form (F1300t) for Australian citizenship. The Form 1300t is signed and dated ‘15 September 2017’ in various places.[5]
[5] Part G – Character: T3/26; Part H - Supporting documents: T3/27; Part M - Declaration, T3/29.
It appears that the application for citizenship was sent by Mrs Somai to the Department a few days before the applicant and Mrs Somai left for a short holiday in Thailand.[6] According to immigration records, the applicant departed Australia at 5:22am on 19 April 2018.[7]
[6] T3/12, 13.
[7] Applicant’s movement records dated 23 August 2019, 1.
On 1 May 2018, the Department sent a letter to the applicant by email acknowledging receipt of the application, and indicating the date of receipt as 20 April 2018.[8]
[8] ST2/2.
The respondent has submitted the Application Form in evidence and I note that the first and second pages of the Application Form are marked as Received, twice by the DIBP (Department of Immigration and Border Protection); and once by the Department of Home Affairs, Parramatta, NSW.[9] The date stamp in each case is 20 April 2018.
[9] T3/12, 13.
On 17 April 2019, a delegate within the Department refused the application.[10] The following grounds were provided to the applicant:
(a) Departmental records indicate that your subclass 176 (Skilled Sponsored) permanent visa ceased at the time of departure from Australia on 19/04/2018. Therefore, you were not a permanent resident at the time of application on 20/04/2018.[11]
(b) Departmental records indicate that your subclass 176 (Skilled Sponsored) permanent visa ceased at the time of departure from Australia on 19/04/2018 which means you were not present as a permanent resident for the period of 12 months immediately before applying for citizenship. Therefore, you do not meet the requirements of paragraph 22 (1)(c) of the Act.[12]
[10] T2/4.
[11] T2/7.
[12] T2/7.
On 1 May 2019, the applicant applied to the Tribunal for review of the delegate’s decision. On 7 May 2020, the Tribunal heard the application by telephone.
Mrs Somai gave oral evidence to the Tribunal. She said she posted the application form by registered post using Australia Post. She did so before she left the country with her husband on 19 April 2018. She said she had misplaced the tracking number. She had tried without success to recover the details from Australia Post. At the time of the hearing, she was not sure of the exact day she posted the letter, but stated confidently that it was a few days before they went on holiday. She also stated that when they left for their holiday they were unaware of the significance of the five-year travel facility. They did not appreciate its significance until they returned to Australia, at which point they were informed that their permanent residence visa had lapsed. They were granted temporary visas, so that they could apply for a Resident Return Visa, which they did immediately.
It is perhaps not surprising that the applicant and his wife fell into this trap. The visa grant letter of 6 February 2013 was poorly worded in one respect. Under the heading
Living in Australia
Congratulations! You have been granted a permanent visa which allows you to travel to and remain in Australia indefinitely.
The reference to ‘travel to’ may well have created an impression that the right to ‘travel to’ continued indefinitely.
As noted above, the Department received the application, according to the date of receipt stamp, on 20 April 2018. The date of receipt is consistent with Mrs Somai’s evidence that she posted the letter before she and her husband departed the country on 19 April 2018.
Mr Eskerie, for the Minister, recognised that: “It is of course likely that he (sic) posted the application before the 20th April since it was by post and he only missed out on the requirement by a day”.[13]
[13] See Transcript 23.54.
I have set out the relevant legislative provisions in the Appendix to these reasons.
Evidence before the Tribunal consists of documents filed under section 37 of the Administrative Appeals Tribunal Act 1975 (Cth) (the T documents); and a separate bundle consisting of the applicant’s visa history, the receipt of application, and the Visa Grant Notice (the Supplementary T documents).
CONSIDERATION
The Skilled (Migrant) (class VE) visa authorised the holder to remain indefinitely in Australia, even after the expiration of the five-year period. However, any departure from the country after the expiration of the five-year travel facility period automatically brought this authorisation to an end.
Sometime on 19 April 2018, the applicant left Australia with an expired travel facility. His underlying visa gave him no right or entitlement to re-enter the country on his return, due to the expiration of the five-year travel facility associated with the visa grant.[14] His status as a permanent resident ceased the moment he left Australia on 19 April 2018. His right to return and reside in Australia was from that moment subject to the grant of a Resident Return Visa. As of 20 April 2018, he did not have the status of a permanent resident, and therefore was ineligible for a grant of citizenship by conferral: Australian Citizenship Act 2007 (Cth) (the Citizenship Act), s 21(2)(b)(i).
[14] See Rasmini and Minister for Home Affairs (Citizenship) [2018] AATA 3465, per Deputy President Forgie, at para [19].
When was the application made?
I turn, therefore, to the critical issue: When was the application made?
Mr Eskerie submitted that an application is ‘made’ within the meaning of section 21(2)(b)(i) when it is received, not when it is posted. The only evidence as to the time of receipt was the date stamp of 20 April 2018 marked on the Application Form, together with the letter of 1 May 2018, which referred to 20 April 2018 as the Date of Receipt.[15] There was simply no evidence before the Tribunal to support a finding that the application was received before 20 April 2018, but not stamped until that date. It is, of course, hard to see how an applicant could ever acquire such evidence.
[15] ST2/2.
The evidence before the Tribunal supports the following findings:
(a)Mrs Somai, acting on the applicant’s behalf, posted his application form for citizenship by registered mail on or about 16 April 2018;
(b)The applicant and Mrs Somai departed Australia on Thursday 19 April 2018, and cleared immigration at 5:22am on 19 April 2018, as noted in the Movement Record;
(c)The Application Form was received by the Department and date stamped on Friday 20 April 2018.
I agree that there is no evidence before the Tribunal to support a finding that the Application was received on or before 19 April 2018.
The case therefore turns on the meaning of the phrase ‘at the time the person made the application’ in section 21(2)(b)(i) of the Citizenship Act. Mr Eskerie informed the Tribunal that this provision has not been the subject of judicial interpretation. He helpfully provided the Tribunal with some analogous English and Australian case law.
The English Court of Appeal decisions
In North West Traffic Area Licensing Authority v Brady [1981] RTR 256 (Brady), the relevant legislation provided that the holder of a heavy vehicle licence was required to re-sit a practical driving test, unless an application for an exemption was ‘made during 1976’. Mr Brady posted his application during 1976 but it was not received until 1977. The Court of Appeal held unanimously that an application received in 1977 was ‘made during 1976’ if it were posted in 1976. Griffiths LJ said in respect of the statutory provision (at 268, 270):
What is meant by those words? It is really a point of construction of first impression. As I would read them, a lorry driver, wishing to take advantage of the provision, complies with it if he posts his application for a licence before the end of 1976. I see no warrant for construing the words ‘is made’ as equivalent to ‘has been received by’ as is the contention of the licensing authority…I think that the choice really is between construing this provision so as to do justice to lorry drivers and construing it for the administrative convenience of the authority. I choose to adopt the former construction. Accordingly, for my part, I would hold that this application was made in time, having been made before the end of 1976; it was made at the time it was posted, and there was no requirement that it should be received by the authority before the end of 1976.
Purchas LJ said (at 271):
Mr Mackay submits that in the case of ambiguity the section ought to be construed broadly in favour of the applicant and not narrowly in favour of restricting the licensing authority from carrying out their function of issuing licences. I agree with this submission. However, I doubt whether there is an ambiguity at all. In the context of making an application of this sort the words ‘the application … is made during 1976’ given their ordinary meaning, mean that when the documents are prepared, the medical certificate obtained, and all are put together and posted to the authority, the process of making the application is complete. In this case that process had been completed before the end of 1976; …(emphasis added)
Although the wording of the legislative provisions is not identical, this decision tends to favour the applicant in these proceedings.
In Camden London Borough Council v ADC Estates (1990) 88 LGR 956 (Camden), the Court of Appeal distinguished Brady in relation to an application for planning approval. The relevant planning legislation had effect ‘in relation to the refusal or conditional grant of planning permission on any application made after 23rd January 1985’. The case stated for the Court found that the application was signed and dated by the architects and posted on 22 January 1985, but not received by Camden Council until 25 January 1985.
The narrow question for the Court was: when was the application for planning permission made? The Court held that it was made when it was received, that is, on 25 January 1985. Purchas LJ, who was part of the court which heard the earlier case of Brady, (at 15D) distinguished that case as follows:
The basis of the decision in Brady’s case was that, in order to qualify as a member of a class, the applicant had to make his application within a certain period of time. This was a matter entirely personal to the applicant and did not affect the position of the authority as recipient of the application, only in determining in which class the applicant should be when that authority came to deal with the application. Thus the court was able to reach the conclusion which it did reach and which, in the words from the judgement of Griffith L.J. (as he then was) the court clearly felt it should in all reasonableness reach if it could. However, that case should be considered as having been decided on its own special facts and, in my judgement, is not of assistance in construing the meaning of the phrase ‘made to’ when used in the planning legislation.
Again, although the legislative provision is not identical, the decision in Camden tends to favour the Respondent in these proceedings.
Australian case law
The most useful Australian decision to which the Tribunal was referred is a decision by the Federal Court of Australia in Secretary, Department of Family & Community Services v Haagar [2001] FCA 1284 (Haagar), a case dealing with section 1185G of the Social Security Act 1991 (Cth) (the Social Security Act). The provisions in question provided a mechanism for supporting farmers by allowing certain family dispositions to be subtracted from the asset pool, thus potentially increasing an eligible person’s social security entitlement. Under the scheme, the date on which the request was made, and the date upon which the disposition was made, were each critical.
The case involved interpreting the words ‘make a request’ in section 1185G of the Social Security Act. Cooper J held that a request was made when it was received by the Secretary. The learned judge said (at para [9]):
The meaning of the phrase “make a request” in s 1185G of the Act is to be determined by the application of the ordinary principles of statutory construction which require that the words be given their ordinary meaning in the context where they appear having regard to the statutory objects sought to be achieved by the words in that context: Collector of Customs v Agfa-Gevaert (1996) 186 CLR 389 at 401 - 402. The use of cases as to the meaning of the same or similar words in another statutory context is of little, if any, assistance and is wont to mislead where the statutory contexts are different.
Cooper J treated the application as a mechanism for bringing information to the attention of the Secretary. This was analogous to giving ‘notice’. He stated (at para [25]):
Once it appears that the statutory scheme contemplates the giving of notice of the request, including the contents of the request, to the Secretary and for it to be acted upon by the Secretary, it is difficult to avoid the conclusion that the legislature intended that the request would be made for the purpose of s 1185G when a request in the statutory form was at the latest received by Centrelink for consideration by the Secretary and that no request was made, in the sense of being complete, until it was received by or on behalf of the Secretary as the person empowered to grant the request.
Cooper J then referred to his previous comments in Secretary, Department of Family and Community Services v Rogers (2000) 104 FCR 272, at 284:
A notice is a notification, a making known, a communication of some matter from one person to another. In the statutory context, the statute identifies the matter to be notified by the notice. Notice is given when it is received by the person to whom the notice is to be given: the giving and receiving of the notice are two aspects of the same action and are simultaneous. Consequently, the giving of notice ordinarily will require that the person to be given notice actually receives notification of the matter to be communicated. Of course, whether by statute or contract, this two-sided act of giving and receiving of notice may be deemed to be done by some act other than actual receipt of the notification by the recipient: Sun Alliance and London Assurance Co Ltd v Hayman [1975] 1 WLR 177 (CA) at 183, 184, 185.
The learned judge thought that these observations were applicable to the scheme in question. Cooper J therefore distinguished Brady and applied Camden.
Mr Eskerie also referred to section 46 of the Citizenship Act, which sets out the formal requirements for an application for citizenship. Mr Eskerie argued that one could infer from the section an implication that the application is taken to be made when it is received.[16] He referred to the passing observation to that effect in Wang and Minister for Immigration and Border Protection (Citizenship) [2017] AATA 730. With respect, I am not persuaded that section 46 carries this implication. When the Application Form is placed in the post, assuming that the Application Form is in a proper state and complies with the requirements of section 46, including the inclusion of the appropriate fee, the applicant has at the time of posting done all that is required to engage a process of determination resting upon the Secretary or delegate. It is not clear why the statement of formal requirements in section 46 should be treated as favouring the theory that an application for citizenship is taken to be made only when it is received. With respect, I do not find reliance on section 46 to be compelling. Indeed, in a section setting out certain formal requirements, the absence of an explicit statement, to the effect that the application is deemed to be made when received, may be seen to count against this argument.
[16] See, for example, Wang and Minister for Immigration and Border Protection (Citizenship) [2017] AATA 730, where the Tribunal stated: ‘Considering s 46 of the Australian Citizenship Act 2007 (Citizenship Act), the application is taken to be made when it is received by the Department on behalf of the Minister and the prescribed fee is paid.’
In the absence of binding authority, the Tribunal is required to identify the legal meaning of the provision in question.
In arriving at a conclusion, I note the following:
(a)The word ‘made’ should not be considered in isolation. The phrase to be construed is the composite expression ‘at the time the person made the application’;
(b)Section 37 of the Acts Interpretation Act 1901 (Cth) provides that a reference to time shall, unless it is otherwise specifically stated, be deemed in each State or part of the Commonwealth to mean the ‘legal time’ in that State or part of the Commonwealth. This provision suggests that the legislature contemplated that it might be necessary to calculate the precise moment of time with a degree of specificity greater than that involved in nominating a day. Section 36 provides that if the ‘period of time’ is expressed to end at, on or with a specified day, then the period of time includes that day;
(c)The reference to ‘time’ in the composite expression serves to pinpoint a moment in time with some precision. I note by contrast that section 22(1)(c) of the Citizenship Act refers to ‘day’.
(d)There is no shortage of examples where the statutory provision refers to a particular day or date, as opposed to a specific time.[17] The expression ‘at the time the person made the application’ appears in various contexts within the Citizenship Act.[18]
(e)A requirement to ‘make an application’ cannot be regarded in all cases as equivalent to a requirement to give notice. Word such as ‘notice’, ‘claim’ or ‘request’ more easily convey an implication that the recipient of the notice, claim or request has some awareness thereof. The word ‘application’ standing by itself appears to be somewhat more neutral. The statutory context is all important;
(f)The legal meaning may be different from the grammatical meaning: see Project Blue Sky v Australian Broadcasting Authority [1998] HCA 28, where McHugh, Gummow, Kirby and Hayne JJ at para [78] said:
The context of the words, the consequences of a literal or grammatical construction, the purpose of the statute or the canons of construction, may require the words of a legislative provision to be read in a way that does not correspond with the literal or grammatical meaning;
(g)An application for monetary payment may more readily be regarded as made at the time when the authority becomes aware of a valid claim, that is, when the application is received: see Haagar;
(h)It is established that an application to a court or tribunal is made when it is received: see Rasmini and Minister for Home Affairs (Citizenship) [2018] AATA 3465. In SZICV v Minister for Immigration & Anor [2006] FMCA 1063, at [65], per Smith FM. In Haagar, Cooper J distinguished certain decisions of the Federal Court as dealing with this context.[19]
[17] See for example, Social Security (Active Participation for Disability Support Pension) Determination 2014 (Cth), Schedule 5, section 5(1)(a)(ii) refers to the ‘36 months ending immediately before the date of claim’.
[18] See, for example, Minister for Immigration and Border Protection v VDQS [2018] FCA 574, at [7], where the terms of sections 16 of the Act were under consideration. The subsection contemplates a period between the person making the application and the Minister’s decision on the application. ‘(c) if the person is or has ever been a national or a citizen of any country, or if article 1(2)(iii) of the Stateless Persons Convention applies to the person, and the person is aged 18 or over at the time the person made the application—the Minister is satisfied that the person is of good character at the time of the Minister’s decision on the application.’
[19] Secretary, Department of Family & Community Services v Haagar [2001] FCA 1284, at para [11], referring to Kiss and Donohoe and the Repatriation Commission (1995) 38 ALD 443; Re Bowen v Repatriation Commission (1994) 32 ALD 700; Re Purnell and Repatriation Commission (1990) 14 AAR 63 and Roberts v Repatriation Commission (1992) 27 ALD 408 (on appeal before Full Court of Federal Court: 111 ALR 436). His Honour noted that these decisions are “concerned with, and are limited to, the question of when an application is ‘made’ within the meaning of s 29 of the AAT Act and/or ss 175 and 177 of the VE Act.
The applicant’s travel facility expired at midnight on 6 February 2018. The event that crystallised his change of permanent resident status was neither the expiration of the travel facility, nor, for that matter, his departure from Australia, but his departure from Australia after the expiration of the travel facility.
When the applicant departed from Australia with an expired facility, his status changed, in that he was no longer a permanent resident. An application made after that time was doomed, on the ground that he was not a permanent resident ‘at the time [he] made the application’.
From that precise point of time, recorded in the Border Force record at 5:22am on 19 April 2018, he was ineligible to apply for citizenship.
It is therefore necessary to identify the moment of time that he made the application with some precision, given that his status as a permanent resident, and his eligibility for Australian citizenship, changed at a particular moment of time.
One practical difficulty with the ‘receipt’ model is that the Department does not record the exact time of receipt. The document is merely date stamped. Given the time critical nature of certain matters received by the Department, it would be desirable, as a matter of administrative efficiency, if not necessity, that the time of receipt be marked on the application.
I would like to underline this point. On the receipt theory, eligibility will depend on whether the application is received before or after the applicant departed Australia. A department that records only the date of receipt, rather than the time, may treat a person as eligible even though they have departed Australia at the time the application is actually received and stamped. This could happen, for example, if the applicant departed Australia on the same day the Department received the application. This undermines the integrity of the Citizenship Act, and can only be addressed by accurate time recording. Or, in the present context, by abandoning the receipt model in favour of the ‘made when posted’ model.
Of equal concern, there are no means available to an applicant, or to the Tribunal, to identify exactly when a letter posted to the Department is received. There may be a significant period of time between the actual acquiring of possession, and the marking of the letter with a date stamp. Indeed, inordinate processing delays are not unheard of in government departments, and citizenship applications are no exception.[20]
[20] See Thongpraphai v The Minister for Immigration & Multicultural Affairs [2000] FCA 1590, per O’Loughlin J at [23].
This suggests a deeper issue, and it is to both linguistic and epistemic. The word ‘made’ is an active verb, suggestive of agency. It suggests action by the maker. If an application is made when it is received, an applicant has no way of knowing when she made the application. If the applicant is asked ‘What time did you make the application?’ she would have to say, ‘I can’t say. I know when I put my application in the registered post, because I have the exact time of my receipt, but I don’t have any knowledge as to when it was received by the department, and therefore, I can’t say when the application was made’. Given that, on the receipt theory, the time of receipt is governed by the internal workings of a government department, it is hard to see how a claimant could ever answer a question which appears, on its face, to relate to his or her own actions.
I do not think it is a sound exercise in statutory interpretation to translate a simple question as to the time at which an application is made into something that is essentially unknowable from the applicant’s standpoint.
The notion that it is for the Department to say when the applicant made his application is such a strained use of language that I would be reluctant to embrace it, unless required by binding authority to do so.
Fixing the time of application by reference to the consignment of a registered letter, which is recorded with precision, rather than the imprecise time concealed rather than revealed by a date stamp, will aid administrative efficiency, and will provide greater certainty to those seeking Australian citizenship. It will serve the interests of justice.
As to the authorities cited by Mr Eskerie, I do not think that the decision in Haagar governs this case. That case was concerned with monetary claims upon social security, and is distinguishable.
The present application is more closely aligned with the situation in Brady, where the claimant sought to bring himself within a class of persons seeking to exercise some privilege – in Mr Brady’s case, the privilege of driving a heavy vehicle without requalifying; in this case, the privilege of qualifying for citizenship by conferral.
Therefore, I do not think that the decision under review is consistent with the statutory formulation. The receipt theory does not serve the orderly and efficient administration of the Citizenship Act. Indeed, I think that applying this theory would lead be an unjust result, and in the absence of some compelling reason, I prefer an interpretation that will avoid considerable inconvenience and, dare I say, injustice to the applicant. There was no suggestion that transmission by registered mail was not a reasonable or suitable means of sending an application to the Department.
I therefore conclude that, where an application for citizenship is made by registered post, the application is made when a valid application form is put into the care of the postal service.
In the present case, it is not disputed that the applicant was a permanent resident immediately before clearing immigration at 5:22am on 19 April 2018. It must therefore follow that he was a permanent resident a few days prior, when his wife posted his application by registered letter. There is no evidence to suggest that the applicant had ceased to be a permanent resident following the expiration of the travel facility on 7 February 2018, and prior to departing Australia on 19 April 2018.
I therefore find that the correct and preferable decision is to find that the applicant was a permanent resident when the application for citizenship was made.
DECISION
The Tribunal sets aside the decision under review and remits the matter to the Minister for further processing on the basis that the applicant was a permanent resident when the application for citizenship was made.
APPENDIX
A. Citizenship Act
Section 46 of the Citizenship Act states:
Application requirements
(1) An application under a provision of this Act must:
(a) be on the relevant form approved by the Minister for the purposes of that provision; and
(b) contain the information required by the form; and
(c) be accompanied by any other information or documents prescribed by the regulations; and
(d) be accompanied by the fee (if any) prescribed by the regulations.
Section 21(2) of the Citizenship Act provides:
General eligibility
Section 21(2) provides:
(2) A person is eligible to become an Australian citizen if the Minister is satisfied that the person:
(a) is aged 18 or over at the time the person made the application; and
(b) is a permanent resident:
(i) at the time the person made the application; and
(ii) at the time of the Minister's decision on the application; and
(c) satisfies the residence requirement (see section 22), or has completed relevant defence service (see section 23), at the time the person made the application; and…
Section 22 of the Citizenship Act provides for the general residence requirement.
22 General residence requirement
(1) Subject to this section, for the purposes of section 21 a person satisfies the 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.
The term ‘permanent resident’ is defined in section 5 of the Citizenship Act as follows:
5 Permanent resident
(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
(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 3 of the Citizenship Act provides that ‘permanent visa’ has the same meaning as in the Migration Act 1958 (Cth) (the Migration Act).
B. Migration Act
Section 5 of the Migration Act provides that ‘permanent visa’ has the meaning given by subsection 30(1), and the latter provides:
Kinds of visas
(1) 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 79 of the Migration Act states:
Effect on visa of leaving Australia
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.
Section 82(6) of the Migration Act states:
(6) 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.
I certify that the preceding 64 (sixty four) paragraphs are a true copy of the reasons for the decision herein of Emeritus Professor P A Fairall, Senior Member
..................................[SGD]......................................
Associate
Dated: 14 October 2020
Date of hearing: 7 May 2020 Advocate for the Applicant: Mrs N Somai Solicitors for the Respondent: Sparke Helmore Lawyers
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