Zarandi and Minister for Immigration, Citizenship and Multicultural Affairs (Citizenship)

[2023] AATA 1916

Zarandi and Minister for Immigration, Citizenship and Multicultural Affairs (Citizenship) [2023] AATA 1916 (28 June 2023)

Division:GENERAL DIVISION 

File Number(s):      2023/1882

Re:Davood Zarandi  

APPLICANT

AndMinister for Immigration, Citizenship and Multicultural Affairs

RESPONDENT

File Number(s):      2023/1886

Re:Masoumeh Rezaei  

APPLICANT

AndMinister for Immigration, Citizenship and Multicultural Affairs

RESPONDENT

DECISION

Tribunal:Mr S. Webb, Member

Date:28 June 2023

Place:Canberra

Applications dismissed.

.................[SGD]............................
Mr S. Webb, Member

Catchwords

PRACTICE AND PROCEDURE – jurisdiction – application for conferral of citizenship refused – permanent resident – permanent visa – temporal considerations – temporary visas – conflict in records – right to apply for review not established – decisions dismissed

Legislation
Administrative Appeals Tribunal Act 1975, ss 27A, 29, 42A
Australian Citizenship Act 2007 (Cth), ss 3, 5, 21, 24, 52
Migration Act 1958, s 30

REASONS FOR DECISION

Mr S. Webb, Member

28 June 2023

1. Davood Zarandi and Masoumeh Rezaei each applied for conferral of Australian citizenship. A delegate of the Minister refused their applications on grounds Mr Zarandi and Mrs Rezaei were not permanent residents. Mr Zarandi and Mrs Rezaei applied for review of these decisions by the Tribunal.

2. Their applications raise 2 interlocutory issues which must be determined before the applications can proceed. The first issue is whether the Tribunal has jurisdiction to review the decisions to refuse conferral of Australian citizenship on Mr Zarandi and Mrs Rezaeri. The second is whether the applications were lodged outside the time allowed and, if so, whether it is appropriate in all the circumstances to grant extensions of time for the lodging of each application.

3. It is convenient to deal with both applications in this decision. Each application turns on the same issues. Furthermore, Mr Zarandi and Mrs Rezaei are family members: Mrs Rezaei is Mr Zarandi’s mother.

   Facts

4. Mrs Rezaei and Behrooz Zarandi (father) have 4 children, including Davood. They are Iranian citizens.

5. Davood was born in July 2004.

6. The family arrived in Australia on 12 November 2012 without valid visas.

7. On 20 August 2013, the family members were granted Temporary Safe Haven class UJ-449, subclass WE-050 bridging visas.

8. On 10 March 2016, the father and family members, including Ms Rezaei and Mr Zarandi, lodged applications for the grant of further visas.

9. On 6 January 2017, Mrs Rezaei and Mr Zarandi (and other family members) were granted Safe Haven class XE-790 visas.

10. On 15 June 2021, the father and other family members, including Mrs Rezaei and Mr Zarandi, applied for further visas. On 16 June 2021 the applications were notified as valid and were recorded as applications for Protection (XD) Temporary Protection (Subsequent)(subclass 785) visas.

11. On 15 September 2022, Mrs Rezaei and Mr Zarandi (and other family members) applied for conferral of Australian citizenship.

12. On 13 January 2023, a delegate of the Minister decided to refuse their applications under s 24(1) of the Australian Citizenship Act 2007 (Citizenship Act). The delegate found Mrs Rezaei and Mr Zarandi were not eligible for conferral of Australian citizenship as they did not meet the residence requirements set out in s 21(2)(b) of the Citizenship Act.

13. On 27 March 2023 Mrs Rezaei and Mr Zarandi lodged applications for review of the delegate’s decision by the Tribunal.

14. On 6 April 2023, the Tribunal sent letters to Mrs Rezaei and Mr Zarandi inviting them to explain why they consider the refusal decisions are reviewable by the Tribunal.

15. On 12 and 17 April 2023, Mrs Rezaei and Mr Zarandi provided further information and submissions in support of their applications.

16. On 26 May 2023, the Minister provided detailed written submissions in reply.

    Jurisdiction

17. The Tribunal’s jurisdiction to review a decision in respect of conferral of Australian citizenship is conferred by s 52(1)(b) of the Citizenship Act:

    (1)  An application may be made to the Administrative Appeals Tribunal for review of the following decisions:

    (a)  …;

    (aa)  …;

    (b)  a decision under section 24 to refuse to approve a person becoming an Australian citizen;

    (c)  …

    …

    Citizenship by conferral 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.

18. As can be seen, where a decision to refuse conferral of Australian citizenship is made in respect of a person who is over 18 years of age and who is not stateless, the person may only apply for review of the decision by the Tribunal if the person is a permanent resident. This bar aligns with the bar in s 24(1A) on conferring citizenship on a person who does not meet the eligibility requirements under, relevantly, s 21(2):

    (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.]

19. The term permanent resident is given meaning in s 5:

    (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.

    (2)  The Minister may, by legislative instrument, determine that:

    (a)  persons who hold a special category visa or a special purpose visa; or

    (b)  persons who have held a special category visa; or

    (c)  persons who are present in Norfolk Island or the Territory of Cocos (Keeling) Islands;

    and who satisfy specified requirements are, or are during a specified period, persons to whom this subsection applies.

20. There is no material before the Tribunal which establishes Mrs Rezaei or Mr Zarandi are within the terms of a determination of the Minister for the purposes of s 5(2). Consequently, in order to determine if Mrs Rezaei and Mr Zarandi meet the threshold of permanent resident, it is necessary to determine of each holds a permanent visa at the time they applied for conferral of Australian citizenship and presently.

21. Under s 3 of the Citizenship Act, the term permanent visa has the same meaning as in the Migration Act 1958 (Migration Act). The term is given meaning in s 30:

    (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.

22. The Visa Grant Notices issued to Mrs Rezaei and Mr Zarandi on 6 January 2017 set out the following information:

23. As can be seen, the visas granted to Mrs Rezaei and Mr Zarandi are for a fixed period, commencing on 6 January 2017 and ceasing on 6 January 2022. The visas Mrs Rezaei and Mr Zarandi were granted are not permanent visas within the meaning of that term under s 30 of the Migration Act.

24. I note the information set out in the Visa Entitlement Verification Online (VEVO) Visa Details Check records for Mrs Rezaei and Mr Zarandi the Period of stay as indefinite. This is not consistent with the Visa Grant Notice issued on 6 January 2017.

25. The outcomes of the visa applications Mrs Rezaei and Mr Zarandi made on 15 June 2021 are not clear on the available materials. It is possible they were granted ‘indefinite’ visas within the meaning of permanent visa, but this is not presently established by probative materials.

26. The available materials and information before the Tribunal do not establish Mrs Rezaei or Mr Zarandi are permanent residents for the purposes of s 21(2) of the Citizenship Act. That being so, by operation of s 52(2) of the Citizenship Act, Mrs Rezaei and Mr Zarandi are not entitled to apply for review of the 13 January 2023 decisions made under s 24(1), refusing each conferral of Australian citizenship.

27. From this it follows the Tribunal does not have jurisdiction to review the 13 January 2023 decisions of the Minister’s delegate and the applications will be dismissed under s 42A(4) of the Administrative Appeals Tribunal Act 1975 (AAT Act).

    Extension of time

28. It is not necessary to proceed further to address issues arising under s 29(2) or (7) of the AAT Act in respect of time. No grant of time can overcome the jurisdictional hurdle which results in dismissal of each application.

29. It is appropriate, nonetheless, to make two observations.

30. Firstly, the prescribed time for lodging an application for review of a reviewable decision is 28 days following the giving of a notice of the decision, setting out factual findings and the reasons for the decision. On the present materials there is a factual question about when the 28-day period commenced for Mrs Rezaei and Mr Zarandi. This is conditioned by the date or dates on which notice of each decision was given to them or is taken to have been given to them.

31. Secondly, the notice of each decision on 13 January 2023 sets out information about review by the Tribunal. This information does not specify the prescribed time within which Mrs Rezaei or Mr Zarandi were entitled to lodge an application for review. Without provision of information about the existence of a time limit for the lodging of an application for review, it may be argued the notices given to Mrs Rezaei and Mr Zarandi may not fully comply with the requirements of s 27A of the AAT Act. At the minimum, the failure to provide such information could be a relevant matter to consider when deciding if the discretion to extend time under s 29(7) should be exercised in all the circumstances.

32. As I have said, this does not assist Mrs Rezaei or Mr Zarandi in the present circumstances where the available materials do not establish they hold permanent visas and I am not satisfied they are permanent residents who are entitled to apply for review of the 13 January 2023 decisions.

    Decision

33. Applications dismissed.

I certify that the preceding 33 (thirty-three) paragraphs are a true copy of the reasons for the decision herein of Mr S. Webb, Member.

...................[SGD].......................

Associate

Dated: 28 June 2023

Applications heard on the papers
Date final submissions received	26 May 2023
Applicants:	Self-represented
Solicitor for Respondent:	Ms Subasha Prasad, MinterEllison