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

This matter concerned an application for Australian citizenship by conferral made by Mr Somai. The Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs refused the application on the basis that Mr Somai did not meet the permanent resident requirement at the time he made the application. The Administrative Appeals Tribunal was required to determine when Mr Somai's application for citizenship was considered to have been "made" for the purposes of the eligibility criteria.

The primary legal issue before the Tribunal was the interpretation of the phrase "at the time the person made the application" as it appears in section 21(2)(b)(i) of the *Australian Citizenship Act 2007* (Cth). This required the Tribunal to determine whether the application was "made" when it was posted by the applicant or when it was received by the Department. A related issue was whether Mr Somai held permanent resident status at the time the application was made, given his departure from Australia with an expired travel facility.

The Tribunal found that Mr Somai's status as a permanent resident ceased when he departed Australia on 19 April 2018, as his underlying visa's five-year travel facility had expired. Therefore, as of 20 April 2018, he was not a permanent resident and thus ineligible for citizenship. Regarding the timing of the application, the Tribunal considered analogous case law, including *North West Traffic Area Licensing Authority v Brady*, which held that an application is "made" when it is posted, not when it is received, particularly where the legislation is to be construed in favour of the applicant. Applying this principle, and noting that the application was posted on or about 16 April 2018 but received and date-stamped on 20 April 2018, the Tribunal concluded that the application was made on 16 April 2018.

The Tribunal set aside the decision under review and remitted the matter to the Department for reconsideration of Mr Somai's eligibility for citizenship by conferral, having found that he was a permanent resident at the time his application was made.