Visvanathan and Minister for Home Affairs (Citizenship)
[2018] AATA 3541
•19 September 2018
Visvanathan and Minister for Home Affairs (Citizenship) [2018] AATA 3541 (19 September 2018)
Decision Date: 19 September 2018
Administrative Appeals Tribunal
ADMINISTRATIVE APPEALS TRIBUNAL )
) No: 2018/1202
GENERAL DIVISION )
Re: Anjali VisvanathanApplicant
And: Minister for Home Affairs
Respondent
DIRECTION
TRIBUNAL: Senior Member K Raif
DATE: 27 September 2018
PLACE: Sydney
IT IS DIRECTED, in accordance with subsection 43AA(1) of the Administrative Appeals Tribunal Act 1975 (Cth), that the text of the decision in this application is to be altered such that reference to:
- the clerical error in paragraphs 12 and 13 of the decision is corrected such that the date “26 January 2001” is amended to read “26 February 2001”.
........................[SGD]...........................................
Senior Member K Raif
Division:GENERAL DIVISION
File Number(s): 2018/1202
Re:Anjali Visvanathan
APPLICANT
AndMinister for Home Affairs
RESPONDENT
DECISION
Tribunal:Senior Member K Raif
Date:19 September 2018
Place:Sydney
The Tribunal affirms the decision under review.
..............................[SGD]..........................................
Senior Member K Raif
CATCHWORDS
CITIZENSHIP – New Zealand citizen – subclass 444 Special Category (Temporary) visa – citizenship by conferral – applicant not a permanent resident at time of application – decision affirmed
LEGISLATION
Australian Citizenship Act 2007 (Cth) ss 5, 17, 21
Social Security Act 1991 (Cth)
SECONDARY MATERIALS
Legislative Instrument IMMI 07/037, Australian Citizenship Act 2007 - Determination under subsection 5(2) - Australian Citizenship (Permanent Resident Status) - June 2007
REASONS FOR DECISION
Senior Member K Raif
19 September 2018
APPLICATION FOR REVIEW
This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 7 March 2018 to refuse to confer Australian citizenship to the applicant under the Australian Citizenship Act 2007 (Cth) (the Act).
The applicant is a national of New Zealand, born on 29 January 2000. She first entered Australia on 31 March 2001. The applicant was most recently granted a subclass 444 Special Category (Temporary) visa (the Special Category visa) on 8 January 2015. The applicant applied for the Australian citizenship by conferral on 22 March 2017.
On 7 March 2018 a decision was made to refuse the application for Australian citizenship by conferral because the delegate was not satisfied that the applicant was a permanent resident when the application was made and also at the time of the decision as required by s. 21 of the Act. The applicant seeks review of the delegate’s decision.
The issue before the Tribunal is whether the applicant meets the eligibility requirements for the conferral of the Australian citizenship. For the reasons that follow, the Tribunal has concluded that the applicant does not meet these requirements and that the decision under review should be affirmed.
RELEVANT LAW
Section 21 of the Act deals with the general eligibility to become an Australian citizen. Section 21(5) relates to persons aged under 18. Relevantly, it provides that a person is eligible to become an Australian citizen if that person is a permanent resident at the time the person makes the application and at the time of the Minister’s decision on the application.
The term ‘permanent resident’ is defined in s 5 of the Act. Section 5(1) requires an applicant to be, or to have been, a holder of a permanent visa or be covered by a determination made under subsection (2). Legislative Instrument IMMI 07/037 provides that certain holders of Special Category visas are determined to be permanent residents.
IS THE APPLICANT ELIGIBLE TO BECOME AN AUSTRALIAN CITIZEN?
The applicant was born in January 2000. As the application for the citizenship was made in March 2017, the applicant was under the age of 18 at the time of the application. The Tribunal finds that the applicant does not meet s. 21(2), (3) and (4).
There is no evidence before the Tribunal to indicate that the applicant’s parent had ceased to be an Australian citizen under s. 17 of the Act before the applicant’s birth. The Tribunal is not satisfied the applicant meets s. 21(6) of the Act. As the applicant was born after September 1975 and not born in Papua, she cannot meet s. 21(7). The applicant was born outside of Australia and is a national of New Zealand. She does not meet s. 21(8) of the Act.
As the applicant was under the age of 18 when the application was made, the applicant relies on s. 21(5) of the Act. As noted above, that provision requires the applicant to be an Australian permanent resident at the time of application and decision.
The applicant has been a holder of the Special Category visa since 2015. Clause 444.511 of the Migration Regulations states that the Special Category visa is a temporary visa permitting the holder to remain in Australia while the holder is a New Zealand citizen. It is not a permanent visa. The Tribunal is not satisfied that at the time of the application or at the time of the decision, the applicant is, and has been, a permanent resident of Australia.
Schedule 1 of the Legislative Instrument IMMI 07/037 provides that certain holders of Special Category visas are determined to be permanent residents.
Item (1)(a) refers to a New Zealand citizen who was in Australia on 26 January 2001 as a holder of the Special Category visa. The applicant entered Australia on 31 March 2001 and there is no evidence to indicate that she was in Australia on 26 January 2001. The Tribunal finds that the applicant does not meet this provision.
Item (1)(b) refers to a person who was outside of Australia on 26 January 2001 but was in Australia as a holder of the Special Category visa for a period of, or periods that total, not less than 1 year in the 2 years before that date. The applicant was born on 29 January 2000, less than one year before the specified date. There is no evidence to indicate that she was the holder of a Special Category visa for a period of not less than 1 year in the 2 years before 26 January 2001. The Tribunal finds that the applicant does not meet that provision.
Item (1)(c) refers to a certificate issued under the Social Security Act 1991 (Cth) that states that the citizen was residing in Australia on a particular date. Although the applicant has presented a certificate in relation to her mother, Ms Saroja Visvanathan, issued on 6 November 2009, there is no evidence that such a certificate was issued in relation to the applicant. In oral evidence the applicant and her father suggested that they had made contact with Centrelink but that a certificate cannot be reissued in respect of the applicant because so many years have passed. However, there is no evidence to indicate that a certificate was ever issued with respect to the applicant or that the applicant was entitled to a certificate. As there is no certificate in relation to the applicant, the Tribunal finds that the applicant does not meet that provision.
There is no evidence that the applicant was present in Norfolk Island or the Territory of Cocos (Keeling) Islands.
The Tribunal finds that the applicant cannot be determined to be a permanent resident in accordance with Legislative Instrument IMMI 07/037. She was not a permanent resident when she made the application for conferral of the Australian citizenship and at the time the decision was made. The Tribunal is not satisfied the applicant meets the eligibility requirements of s. 21(5) of the Act.
The applicant’s father spoke about the applicant’s potential contribution to Australia and her present studies. The Tribunal acknowledges that evidence but has no discretion in relation to the issue that arises on review.
CONCLUSION
Having found that the applicant does not meet the eligibility requirements for conferral of Australian citizenship, the Tribunal affirms the decision under review.
I certify that the preceding 18 (eighteen) paragraphs are a true copy of the reasons for the decision herein of Senior Member K Raif
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Associate
Dated: 19 September 2018
Date(s) of hearing: 18 September 2018 Applicant: In person Solicitors for the Respondent: S Gaussen - Sparke Helmore
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