Veras Batista and Minister for Immigration and Border Protection (Citizenship)

Veras Batista and Minister for Immigration and Border Protection (Citizenship) [2018] AATA 679 (2 March 2018)
Division:GENERAL DIVISION
File Numbers: 2017/6258
2017/6259

Re:Ricardo Veras Batista
Patricia Passos Veras Batista
APPLICANTS

AndMinister for Immigration and Border Protection
RESPONDENT

DECISION
Tribunal:Deputy President S Boyle
Date:2 March 2018

Date of written
reasons: 23 March 2018
Place:Perth

The Tribunal in its decision of 2 March 2018 decided that:
1.the Tribunal does not have jurisdiction to consider the applications for review of the Respondent’s decisions both dated 27 September 2017; and
2.the Tribunal dismisses the applications under section 42A(4) of the Administrative Appeals Tribunal Act 1975 (Cth).

...[sgd].............................................................
Deputy President S Boyle
CATCHWORDS
CITIZENSHIP – jurisdiction – decision refusing grant of citizenship – whether the Tribunal’s jurisdiction excluded by requirement that the applicant be a permanent resident – no jurisdiction.
LEGISLATION
Administrative Appeals Tribunal Act 1975 (Cth) – s 42A(4)
Australian Citizenship Act 2007 (Cth) – ss 3, 5, 22(1), 22(1)(c), 22(8), 22(6), 24(1), 52(1), 52(2)
Migration Act 1958 (Cth) – ss 5, 30(1), 37, 72, 73,74, 75, 76, Subdivision AF
Migration Regulations 1994 (Cth) – reg 2.01, Schedule 2
REASONS FOR DECISION
Deputy President S Boyle
23 March 2018
THE APPLICATIONS

On 2 March 2018 the Tribunal decided that it did not have jurisdiction to review the applications and gave its oral reasons at the hearing on that date. On 12 March 2018 the Applicants requested written reasons for the decision made on 2 March 2018. The reasons are set out below.
Application 2017/6258
An application was made by Mr Ricardo Veras Batista on 20 October 2017 to the Tribunal for review of the decision of the delegate for the Minister of Immigration and Border Protection (the Minister) to refuse Mr Veras Batista’s application for Australian citizenship by conferral (T1).
Application 2017/6259
An application was also made by Ms Patricia Veras Batista on 20 October 2017 to the Tribunal for review of the decision of the delegate of the Minister to refuse Ms Veras Batista’s application for Australian citizenship by conferral (T1).
The decisions by the Minister’s delegate to refuse the applications were made under section 24 of the Australian Citizenship Act 2007 (Cth) (the Citizenship Act).
The applications are effectively in identical terms and the considerations for both applications are also, in effect, identical.
BACKGROUND
The Applicants arrived in Australia on 28 June 2011 on Temporary Work (Skilled) visas (subclass 457) visas (T14 in 2017/6258 application and T10 in 2017/6259 application). These visas were renewed.
On 15 December 2016 the Applicants’ subclass 457 visas expired (T14 in 2017/6258 application and T10 in 2017/6259 application).
On 16 December 2016 bridging visas were issued to the Applicants, those being Bridging E (General) (sub-class 050) visas which fell into the visa class of Bridging E (WE) visas (T8 in 2017/6258 application and T7 in 2017/6259 application). These visas are current.
On 1 November 2016 each of the Applicants made an application for citizenship by conferral under section 21 of the Citizenship Act (T3 in 2017/6258 application and T2 in 2017/6259 application).
There was correspondence between the Applicants and the Department of Immigration and Border Protection (the Department) in relation to the provision of certain documents and further information. As part of this process, submissions were made under the provision of section 22(6) of the Citizenship Act, seeking the exercise of the discretion of the Minister to treat certain periods as periods which qualify for the purposes of the general residence requirements provided for in section 21(2)(c) of the Citizenship Act.
On 27 September 2017 the Applicants’ applications for citizenship were refused (T14 in 2017/6258 application and T10 in 2017/6259 application) on the basis that the Applicants did not satisfy the general residence requirement set out in section 22 of the Citizenship Act.
On 20 October 2017 the Applicants made the applications to the Tribunal for the review of the Minister’s decisions of 27 September 2017.
LEGISLATIVE FRAMEWORK
Section 24(1) of the Citizenship Act is in the following terms:
(1) If a person makes an application under section 21, the Minister must, by writing, approve or refuse to approve the person becoming an Australian citizen.
Section 22(1) of the Citizenship Act is in the following terms:
(1) Subject to this section, for the purposes of section 21 a person satisfies the general residence requirement if [original emphasis]:
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.
Section 22(6) of the Citizenship Act provides:
(6) For the purposes of paragraph (1)(c), 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 present in Australia during that period (except as a permanent resident or an unlawful non-citizen); and
b.the Minister is satisfied that the person will suffer significant hardship or disadvantage if that period were not treated as one during which the person was present in Australia as a permanent resident.
The powers for the Administrative Appeals Tribunal to review are set out in section 52 of the Citizenship Act, which relevantly provides:
(1) An application may be made to the Administrative Appeals Tribunal for review of the following decisions:
a. …
b. a decision under section 24 to refuse to approve a person becoming an Australian citizen…
Subsection 52(2) of the Citizenship Act is in the following terms:
(2) However, if:
a.    the Minister makes a decision under section 24 to refuse to approve a person becoming an Australian citizen; and
b.    the Minister's reasons for the decision did not refer to the eligibility ground in subsection 21(8) (about statelessness); and
c.    the person was aged 18 or over at the time the person made the application to become an Australian citizen;
a person (the applicant) cannot apply for review of that decision unless the applicant is a permanent resident. [Original Emphasis]
THE ISSUE
The issue for determination is whether this Tribunal has jurisdiction to review the Minister’s decisions of the 27 September 2017.
CONSIDERATION
At the hearing the Applicants made submissions that the Minister should exercise his discretion under subsection 22(6) of the Citizenship Act to hold that they satisfied the general residence requirements for the purposes of subsection 22(1)(c) of the Citizenship Act.
As set out in paragraph 15 above, subsection 22(6) of the Citizenship Act specifically refers to subsection 22(1)(c) of the Citizenship Act. The opening words of subsection 22(6) are: “For the purposes of paragraph (1)(c)…”
Subsection 22(1)(c) of the Citizenship Act provides that a person satisfies the general residence requirement (for the purposes of subsection 21(2)(c)) if the person was present in Australia as a permanent resident for a period of 12 months immediately before the person made the application, see paragraph 14 above.
The operation of subsection 22(6) of the Citizenship Act is limited only to addressing the issue of the general residence requirement in subsection 22(1)(c) of the Citizenship Act which in turn is defining the general residence requirement for the purposes of subsection 21(2)(c) of the Citizenship Act. It does not address the requirement of the Applicants’ standing under section 52 of the Citizenship Act to bring any applications for review of decisions.
The Minister’s decisions of 27 September 2017 were decisions under section 24 of the Citizenship Act. Accordingly, subsection 52(1)(b) of the Citizenship Act is applicable (see paragraph 16 above). The Tribunal finds that the Minister’s decisions did not refer to the eligibility grounds under section 21(8) (statelessness) of the Citizenship Act (see subsection 52(2)(b) of the Citizenship Act) and that the Applicants are both over the ages of 18 (see subsection 52(2)(c) of the Citizenship Act).
Accordingly, section 52(2) of the Citizenship Act, which precludes a person who is not a permanent resident from making an application to this Tribunal for a review of a decision under section 24 of the Citizenship Act, applies.
The Tribunal finds that the relevant date for determining whether or not an applicant is a permanent resident for the purpose of determining jurisdiction is the date that the application is made to the Tribunal. In the present case both applications to this Tribunal were made on 20 October 2017.
Were the Applicants permanent residents?
Accordingly, the issue is whether the Applicants were, as at 20 October 2017, permanent residents. “Permanent Resident” is defined in section 3 of the Citizenship Act as having the meaning given to that term in section 5 of the Citizenship Act.
Section 5 of the Citizenship Act is in the following terms:
(1) For the purposes of this Act, a person is a permanent resident at a particular time if and only if [original emphasis]:
a. the person is present in Australia at that time and holds a permanent visa at that time; or
…
The Applicants do not fall into the categories as set out in subsections 5(1)(b) and (c) of the Citizenship Act and therefore must satisfy the requirements of subsection 5(1)(a) of the Citizenship Act to be considered permanent residents. In other words, the Applicants must have held permanent visas at 20 October 2017.
A permanent visa is defined in section 3 of the Citizenship Act to have the meaning of that term as set out in the Migration Act 1958 (Cth) (the Migration Act). Section 5 of the Migration Act defines a permanent visa as being defined in subsection 30(1) of the Migration Act. Subsection 30(1) of the Migration Act is in the following terms:
(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.
(2)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.
The visas that were held by both of the Applicants as at 20 October 2017 were Bridging E Class (Class WE) visas under sub-clause 050 of Schedule 2 to the Migration Regulations 1994 (Cth) (the Migration Regulations). The question for determination is whether that class and sub-class of visa is to be treated as a permanent visa or a temporary visa. That issue is answered by section 37 of the Migration Act. Section 37, which is headed “Bridging Visas”, is in the following terms:
There are classes of temporary visas, to be known as bridging visas, to be granted under Subdivision AF.
Subdivision AF of the Migration Act is comprised of sections 72 to 76. The Migration Regulations identify various classes of visa. Regulation 2.01 headed “Classes of Visas” identifies Bridging E (Class WE) visas as being issued under section 37 of the Migration Act, that is, they are temporary visas.
Accordingly, the Tribunal is satisfied that as at 20 October 2017 both Applicants held bridging visas, specifically “Bridging (Class WE)” visas, issued under section 37 of the Migration Act which are, by operation of the provisions identified above, temporary visas.
CONCLUSION
In order to bring an application for review before the Tribunal the Applicants were required to be permanent residents for the purpose of section 52 of the Citizenship Act. To be a permanent resident, as that term is defined in the Citizenship Act (see section 5 at paragraph 27 above), the Applicants would have to have held permanent visas. The Applicants did not hold such visas. Accordingly, they are not, for the purposes of the relevant legislation, permanent residents. In particular, they are not permanent residents as that term is used in subsection 52(2) of the Citizenship Act.
DECISION
By operation of subsection 52(2) of the Citizenship Act the Tribunal has no jurisdiction to hear the applications for the review of a decision of the Minister to refuse to grant citizenship under section 24 of the Citizenship Act.
The Tribunal dismisses the applications under section 42A(4) of the Administrative Appeals Tribunal Act 1975 (Cth).

I certify that the preceding 35 (thirty-five) paragraphs are a true copy of the reasons for the oral decision herein of Deputy President S Boyle

....[sgd]...........................................................
Administrative Assistant - Legal
Dated: 23 March 2018

Date of hearing: 2 March 2018

Applicants: Self-represented

Representative for the Respondent: Mr Gerrard

Solicitors for the Respondent: Australian Government Solicitors

[2018] AATA 679

2 March 2018

Key Legal Topics

Areas of Law

Administrative Law

Immigration

Statutory Interpretation

Legal Concepts

Jurisdiction

Procedural Fairness

Standing

Statutory Construction

Judicial Review

Date of hearing:	2 March 2018
Applicants:	Self-represented
Representative for the Respondent:	Mr Gerrard
Solicitors for the Respondent:	Australian Government Solicitors