Watkins and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Citizenship) - [2021] AATA 1700

Watkins and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Citizenship) [2021] AATA 1700 (11 June 2021)
Division:GENERAL DIVISION
File Number(s):2021/0549
Re:Lucy Watkins
APPLICANT

Minister for Immigration, Citizenship, Migrant Services and Multicultural AffairsAnd
RESPONDENT

DECISION
Tribunal:Mr S. Webb, Member
Date:11 June 2021
Place:Canberra

Application dismissed.
……………..[sgd]…………….
Mr S. Webb, Member
AUSTRALIAN CITIZENSHIP – application for conferral refused – permanent resident requirement not met – decision does not refer to statelessness eligibility provision – applicant not a permanent resident at time of application for review – no application for review can be made – no discretion – application made for an extension of time in which to make a further application yet to be decided – extension of time application not material - application dismissed
Legislation
Administrative Appeals Tribunal Act 1975 ss 25, 29, 42A.
Australian Citizenship Act 2007ss 4-5, 21-22, 24, 52.
Migration Act 1958 ss 5, 30.
Cases
Damsaz and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Citizenship) [2020] AATA 735.
FSDH and Minister for Immigration and Border Protection (Citizenship) [2018] AATA 1844.
Singh and Minister for Immigration and Multicultural Affairs [2007] AATA 2023.
REASONS FOR DECISION
Mr S. Webb, Member
11 June 2021

Lucy Watkin applied for Australian citizenship by conferral. A delegate of the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Minister) refused her application. Ms Watkins applied to this Tribunal for review.
The sole issue for determination, presently, is whether her application should be dismissed on grounds that the Minister’s decision is not reviewable by this Tribunal.
Ms Watkins is represented by a migration agent, Ben Watt. Mr Watt concedes that “Ms Watkin’s very likely did not have standing to lodge the purported review on 3 February 2021,”[1] Mr Watt asserts that an application for an extension of time in which to make a further application against the Minister’s decision was made on 3 May 2021 under s 29(7) of the Administrative Appeals Tribunal Act 1975 (AAT Act). In Mr Watt’s submission, the question of dismissing Ms Watkins’ application for review and her purported application for an extension of time in which to make a further application for review should be considered at the same time. The reason for this appears to relate to a concern about possible procedural implications, should her present application be dismissed. Mr Watts refers to the approach adopted by the Tribunal in Singh and Minister for Immigration and Multicultural Affairs (Singh).[2] He also refers to the approach adopted by the Tribunal in Damsaz and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Damsaz).[3]
[1] Applicant’s written submissions, 7 June 2021.
[2] [2007] AATA 2023.
[3] [2020] AATA 735.
The Minister asserts that the invalidity and consequent dismissal of Ms Watkins’ present application for review and her purported application for grant of an extension of time in which to make a further application for review of the Minister’s decision are separate issues. In the Minister’s submission, her present application is invalid and it should be dismissed forthwith under s 42A(4) of the AAT Act. The Minister argues that the purported application for an extension of time should be considered and determined separately, once a proper application under s 29(7) of the AAT Act has been made and the parties have been heard on the matter.
The relevant facts are not in dispute and they can be shortly stated.
At all relevant times, Ms Watkins was over the age of 18 – she was born in 1981.
Ms Watkins is married to an Australian citizen.
She first arrived in Australia on 12 September 2007 under an Electronic Travel Authority (Visitor) (subclass 976) visa.
On 23 December 2015, Ms Watkins was granted a subclass 186 (Employer Nomination Scheme) visa. This visa allowed for permanent residence.
On 1 April 2018, Ms Watkins departed Australia.
On 19 November 2020, she applied for conferral of Australian citizenship.
On 23 December 2020, Ms Watkins’ subclass 186 (Employer Nomination Scheme) visa expired.
On 7 January 2021, a delegate of the Minister decided to refuse Ms Watkins’ application for conferral of Australian citizenship (Minister’s decision).[4] The Minister’s decision was made under s 24 of the Australian Citizenship Act 2007 (Citizenship Act). and it does not refer to the eligibility requirement in respect of statelessness that is set out in s 21(8) of that Act.
[4] T3.
On 3 February 2021, Ms Watkins applied to the Tribunal for review of the Minister’s decision.
On 3 May 2021, Mr Watt referred to requesting grant of an extension of time in which to make a further application for review of the Minister’s decision. This was not formalised or crystallised into an actual application, and it was not dealt with.
The Tribunal understands that subsequently Ms Watkins was granted and now presently holds a Resident Return (subclass 155) visa – a permanent residence visa.[5]
[5] Respondent’s written submissions, 24 May 2021, page 3.
On 7 June 2021, Ms Watkins lodged a further application for review of the Minister’s decision and made an application for grant of an extension of time in which to do so.
On 8 June 2021, the Minister’s dismissal application was listed for hearing before me on the papers. As of that date and presently, the Minister has not provided any response to Ms Watkin’s application for grant of an extension of time in which to lodge a further application for review of the Minister’s decision.
From these facts, two important findings can be made.
Firstly, Ms Watkins was absent from Australia when she applied for conferral of Australian citizenship and, secondly, the visa that allowed for permanent residence expired while she was absent from Australia and before the Minister’s decision was made.
For Australian citizenship to be conferred, an applicant must meet the requirements set out in s 21 of the Citizenship Act. The permanent resident requirement set out in s 21(2)(b) is of particular relevance in Ms Watkins’ case –
(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 general residence requirement (see section 22) or the special residence requirement (see section 22A or 22B), or satisfies the defence service requirement (see section 23), at the time the person made the application; and
(d) understands the nature of an application under subsection (1); and
(e) possesses a basic knowledge of the English language; and
(f) has an adequate knowledge of Australia and of the responsibilities and privileges of Australian citizenship; and
(g) is likely to reside, or to continue to reside, in Australia or to maintain a close and continuing association with Australia if the application were to be approved; and
(h) is of good character at the time of the Minister’s decision on the application.
[Emphasis added].
The term ‘permanent resident’ is given meaning in s 5 of the Citizenship Act, relevantly –
(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.
The term ‘permanent visa’ is given meaning in s 4(1) of the Citizenship Act –
permanent visa has the same meaning as in the Migration Act 1958.
Under s 5(1) and s 30(1) of the Migration Act 1958 (Migration Act), ‘permanent visa’ means –
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.
(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.
On the present evidence, Ms Watkins did not hold a permanent visa after 23 December 2020 – although it appears she has subsequently been granted a Resident Return (subclass 155) visa.
As was said in FSDH and Minister for Immigration and Border Protection[6], the date at which permanent resident status is to be assessed for the purposes of s 52(2) of the Citizenship Act is the date on which the person applies for review by the Tribunal.
[6] [2018] AATA 1844 at [41].
Ms Watkins was not a ‘permanent resident’ as of 23 December 2020 as she was absent from Australia at that time and the visa on which her permanent resident status depended expired on that day.
Consequently, by operation of s 52(2) of the Citizenship Act, Ms Watkins cannot validly apply for review of the Minister’s decision –
(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.
This provision does not confer discretion on the Tribunal to step over or around the bar on applying for review.
It is for this reason, as I understand Mr Watt’s argument, Ms Watkins has made a new application for review of the Minister’s decision, with an application for the grant of an extension of time in which to do so. I do not propose to say anything about this other than to observe that there is no bar to Ms Watkins making a new application for conferral of Australian citizenship without proceeding with a further application to the Tribunal that is well out of time. Of course, those are matters for her to decide, and I accept that she may have her own reasons for doing so. Should she proceed in the manner foreshadowed by Mr Watt, the new application will be determined on its merits should an extension of time be granted.
With regard to Mr Watt’s submissions regarding Singh’s case, that case is not determinative of Tribunal procedure – it simply sets out the procedure that was followed in the circumstances, applying the law as it stood at the time. That said, I would agree, in principle, with what the Tribunal said in paragraph 33 about the time at which the grant of Australian citizenship is to be decided on review – this is up to the date of the Tribunal’s decision.
With regard to Damsaz’s case, it is clearly distinguished on its facts. Mr Damsaz was a permanent resident when he applied for review, but his permanent resident status changed in the course of the Tribunal proceedings. Ms Watkins was not a permanent resident when she applied to the Tribunal for review of the Minister’s decision.
Mr Watt argues that the discretion conferred by s 22(9) of the Citizenship Act may be applied, generally, and in the specific terms of Ms Watkins’ case to treat her as a permanent resident during the period in which she was absent from Australia without a permanent resident visa.
This submission is misconceived for two reasons. Firstly, the discretion is conferred in relation to the general residence requirement for the purposes of s 21(2)(c) of the Citizenship Act. No broader application is available or authorised. Secondly, for the discretion to be enlivened, the essential preconditions must be satisfied –
(9) If the person is the spouse, de facto partner or surviving spouse or de facto 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 spouse or de facto 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.
[Emphasis added].
It is very clear that Ms Watkins does not satisfy the precondition in s 22(9)(c).
From this it follows that Ms Watkins cannot apply for review of the Minister’s decision.
Put differently, under s 52 of the Citizenship Act and s 25 of the AAT Act, the Tribunal has no power or jurisdiction to review of that decision.
In those circumstances, the only proper course is for the application to be dismissed under s 42A(4) of the AAT Act.
With regard to the further application for review of the Minister’s decision, for this to proceed an extension of time is required under s 29(7) of the AAT Act. When considering whether it is appropriate to exercise discretion to allow the application by grant of additional time, the Tribunal must afford procedural fairness to each party. The application for grant of an extension of time in which to lodge a further application for review of the Minister’s decision cannot be decided, presently, because the parties have not been heard on issues relevant to exercise of the discretion conferred by s 29(7) of the AAT Act.
In the circumstances of this case, there is no utility in delaying this decision in respect of the Minister’s application for dismissal of Ms Watkin’s initial application for review, pending resolution of the new application she has made and the attendant application for an extension of time under s 29(7) of the AAT Act. Resolution of the determinative issues in the former is not contingent upon or affected by resolution of the issues to be decided in the latter.
Decision
Application dismissed.

I certify that the preceding 41 (forty one) paragraphs are a true copy of the reasons for the decision herein of Mr S. Webb, Member.

...............................[sgd]..................................
Associate
Dated: 11 June 2021