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

[2022] AATA 5256

ZJJM and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Citizenship) [2022] AATA 5256 (28 March 2022)

Division:GENERAL DIVISION

File Number(s):      2021/5356

Re:ZJJM

APPLICANT

AndMinister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

RESPONDENT

DECISION

Tribunal:Senior Member B J Illingworth

Date:28 March 2022

Date of written reasons:        14 April 2022

Place:Adelaide

The Applicant has lodged an application for a review of a decision dated 28 July 2021. For the reasons given orally at the conclusion of the hearing of this matter, the Tribunal finds that the applicant does not satisfy the eligibility requirements to be granted Australian Citizenship and the decision under review is affirmed.

.............................[Sgnd].....................................

Senior Member B J Illingworth

Catchwords

CITIZENSHIP – refusal to grant Australian citizenship – whether applicant is a permanent resident for the purposes of section 5 – permanent residency requirements not met – Australian Citizenship Act 2007 – decision under review affirmed

Legislation

Australian Citizenship Act 2007 (Cth)

Migration Regulations 1994 (Cth)

AMENDED REASONS FOR DECISION

Senior Member B J Illingworth

14 April 2022

1. At the conclusion of the hearing of the above matter, the terms of the decision intended to be made and the reasons therefore were stated orally. After the giving of the oral reasons, the Applicant, pursuant to subsection 43(2A) of the Administrative Appeals Tribunal Act 1975, requested the Tribunal to furnish a statement in writing of the reasons of the Tribunal for its decision.

2. The oral reasons for the decision have been transcribed by Epiq. Some minor amendments have been made to that transcript. Whereas those oral reasons, as amended, may reflect the inelegance of an extempore decision, they are in fact the reasons for the said decision.

3. The said transcript is annexed hereunto and furnished to the Applicant and to the Respondent as it is the reasons for the Tribunal’s decision.

I certify that the preceding three (3) paragraphs are a true copy of the reasons for the decision herein of Senior Member B J Illingworth.

…………[Sgnd].………………

Associate

Dated: 5 June 2023

Date of hearing:	28 March 2022
Applicant’s Representative:	Applicant’s Father
Representative for the Respondent:	Lucinda Taylor, Minter Ellison

ORAL DECISION OF SENIOR MEMBER ILLINGWORTH        [10.41 am]

1.    SENIOR MEMBER:  On 28 July 2021, a delegate of the respondent refused the applicant's application for Australian citizenship by conferral because she did not meet the requirements of section 21(5)(b) of the Australian Citizenship Act 2007 (the Act), because she was not a permanent resident of Australia both at the time she made the application for citizenship and at the time of the decision of the respondent's delegate.

2.    The applicant was born on 14 June 2005 and is a citizen of Russia.  She is currently aged 16 years and residing in the Russian Federation.  The application for review of the delegate's decision was brought by her representative, namely her father, which was received by the Tribunal on 6 August 2021. 

3.    The applicant's father appeared on her behalf at the hearing of the application for review, and the respondent was represented by Ms Taylor of MinterEllison Lawyers.

Issues

4.    The only issue for the Tribunal is whether the applicant satisfied the requirements of section 21(5) of the Act and was a permanent resident of Australia, both at the time she made the application for Australian citizenship, and at the time of the respondent's delegate's decision.  The applicant’s father also raised the hope that further other remedies may be available to him, which I will deal with in a moment.

The legislative framework

5.    Section 21(1) of the Act provides that a person may make an application to the Minister to become an Australian citizen.  Section 24(1) of the Act provides that where the Minister receives such an application the Minister must approve or refuse to approve the person becoming an Australian citizen.

6.    Section 24(1A) of the Act provides that the Minister must not approve a person becoming an Australian citizen unless the person is eligible to become an Australian citizen under subsections 21(2) - 21(8) of the Act.

7.    An application for citizenship made by a person aged under 18 years, which relevantly applies in this matter, is governed by section 21(5) of the Act and reads as follows:

A person aged under 18 years:

(5) A person is eligible to become an Australian citizen if the Minister is satisfied that the person:

(a)is aged under 18 at the time the person made the application; and

(b)is a permanent resident:

at the time the person made the application; and

at the time of the Minister's decision on the application.

8.    Permanent resident is defined in section 5 of the Act and reads as follows:

(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.

9.    The applicant is not covered by a determination in force under section 5(2) of the Act and so the issue is whether the applicant satisfies the definition of permanent resident referred to in sections 5(1)(a) or (b) of the Act. 

10.  More particularly, as the applicant was not present in Australia at the time of the application for citizenship, the issue is whether she satisfied the requirements of permanent resident at the time of the application for citizenship and the decision of the delegate within the meaning of both sections 5(1)(b)(i) and 5(1)(b)(ii) of the Act.

Background

11.  As I have said, the applicant was born in the Russian Federation on 14 June 2005 and is a Russian citizen.  The Department of Home Affairs movement history indicates that the applicant arrived in Australia on 18 December 2006, aged approximately 18 months and departed Australia on 1 April 2007. She returned on 10 January 2018 aged 13 ½ years and departed 1 February 2018 and thereafter remained offshore.

12. At the time of her departure on 1 February 2018, the applicant was a holder of a Visitor (Subclass 600) visa. As the respondent correctly observed in the Statement of Facts, Issues and Contentions, a Visitor (Subclass 600) visa is a temporary visa under Schedule 2 – Provisions with Respect to the Grant of Subclass of Visas of the Migration Regulations 1994 (the Regulations).  Hence, at that time the applicant last left Australia, she was not the holder of a permanent visa.

13.  In the application for review under the section headed, "Reasons for application", the applicant's father submitted that in February 2020, the applicant applied for a Permanent Resident (child visa subclass 101) and was given an indicative time for the processing of the application of nine to 12 months.  This, he said, potentially gave the applicant enough time to return to Australia and apply for Australian citizenship before she turned 16 years of age. However, due to COVID restrictions, the Department of Home Affairs took more than 16 months to process the permanent visa application, which was granted on 2 June 2021, 12 days before her 16th birthday. 

14.  On 9 June 2021, one week after the grant of her permanent visa, and five days before her 16th birthday, the applicant applied for Australian citizenship.  She was still living in the Russian Federation.

15.  This morning, the applicant’s father has repeated those submissions and very eloquently detailed the difficulties that were faced by him and his daughter in pursuing the application for citizenship and the significance of the delays caused by the Department failing within the normal period of time to grant her visa application, and then, enable the applicant to come to Australia.  It had been intended that she would have come to Australia well before her 16th birthday and when she was approximately 14 years of age.  However, the unfortunate consequences of the COVID‑19 pandemic, and also of concern to the Tribunal, now the war that is causing much worldwide consternation is going to have a significant effect on this young lady moving forward.

16.  The question for the Tribunal is whether the applicant was, at the time of both the application for citizenship and the decision of the Minister (by a delegate), a permanent resident within the meaning of section 5(1) of the Act. 

17.  The applicant was not present in Australia at the time of her application for citizenship or the delegate's decision, and therefore, she cannot satisfy the definition of permanent resident in section 5(1)(a) of the Act, namely that she was present in Australia at the time and held a permanent visa.

18.  As the applicant was outside of Australia at the time of her application for citizenship, and the decision of the delegate of the Minister, it is necessary to determine whether the applicant satisfies the definition of permanent resident in sections 5(1)(b)(i) and (ii) of the Act.  Importantly, both the requirements in section 5(1)(b), that (i) the applicant is not present in Australia at that time and holds a permanent visa at that time, and (ii) that the applicant had previously been present in Australia and held a permanent visa immediately before last leaving Australia, must be satisfied to meet the definition of permanent resident.  It is not sufficient that only subsection (i) or subsection (ii) are satisfied.

19.  In the 4 months and 1 week during which the applicant resided in Australia, and at the time the applicant last departed Australia on 1 February 2018, she was not the holder of a permanent visa, but was a holder of a temporary visa, namely a Visitor (Subclass 600) visa.

20.  In the application for review, the applicant's father asserts that the applicant has been seriously disadvantaged by the COVID‑19 restrictions which resulted in the delay in processing her application for a permanent visa, which in turn impacted upon her ability to return to Australia before turning 16 years of age as the holder of a permanent visa, and then apply for Australian citizenship.

21.  Further, he submits, that because the applicant was unable to return to Australia prior to her 16th birthday, she has been disadvantaged because policy considerations are different for a child aged 16 to 17 years of age.  The applicant's father further submits that the applicant is willing to migrate to Australia and study and live in Australia, but her inability to obtain Australian citizenship renders her ineligible for education and financial programs, including HECS‑HELP.

22.  The applicant's father submits that due to COVID‑19 restrictions, and indeed, the war currently raging in Europe, the applicant has been seriously disadvantaged in not being able to obtain Australian citizenship and asked the Tribunal to exempt the applicant from the requirement to be physically present in Australia due to her inability to travel.  Or in the alternative, extend for 18 months the policy considerations available to a 15‑year‑old child.

Conclusion

23.  The Act provides a legislative framework for the grant of Australian citizenship by conferral, including in respect of children under 18 years of age.  Hence, when considering the applicant's application, as she is a person under the age of 18 years, the applicant's eligibility to become an Australian citizen requires her to satisfy the provisions of section 21(5) of the Act (referred to above in paragraph 7) namely that she was under 18 years of age at the time she made the application and was a permanent resident.

24.  First, the applicant must satisfy the age requirement. The age of the applicant is not in dispute. She is a person under the age of 18 years, and accordingly, satisfied section 21(5)(a) of the Act.

25.  Second, the applicant must be a permanent resident, both at the time she made the application and at the time of the Minister's decision.  In determining whether the applicant was a permanent resident, she must satisfy the definition in section 5(1) of the Act.

26.  Section 5(1) makes it very clear that, for the purpose of the Act, the definition of permanent resident is satisfied if and only if the provisions of the section are satisfied. The Tribunal is not vested with any power or discretion within the legislative framework to vary the definition requirements. 

27.  To satisfy the definition of permanent resident, the applicant must satisfy one of the two possibilities.  First in section 5(1)(a), or second, section 5(1)(b)(i) and 5(1)(b)(ii) of the Act.

28.  The applicant, albeit the holder of a permanent visa, was not a permanent resident in Australia at the relevant time, and therefore, does not satisfy the definition of permanent resident in section 5(1)(a) of the Act.

29.  Turning to the second alternative, the applicant was at the relevant time residing in the Russian Federation and held a permanent visa, which satisfies section 5(1)(b)(i) of the Act. However, she had not been present in Australia and held a permanent visa immediately before leaving Australia. She held a temporary visa. Therefore, the applicant does not satisfy 5(1)(b)(ii) of the Act.  Accordingly, she does not satisfy both 5(1)(b)(i) and 5(1)(b)(ii) of the Act, and therefore, she does not meet the definition of permanent resident. 

30.  Hence, because the applicant does not satisfy the definition of permanent resident, she is not a person who is eligible to become an Australian citizen.

31.  The applicant's father has invited the Tribunal to exempt the applicant from the requirement to be physically present in Australia as required by section 5(1)(a) of the definition of permanent resident, or alternatively, extend for 18 months the conditions available to 15‑year‑old children as contained within the Policy considerations. 

32.  The Tribunal's powers and discretions are provided within the legislative framework, in this case, the Act.  That includes any discretionary powers to grant the exemptions that the applicant's father is requesting of the Tribunal. As the respondent has correctly observed in the Statement of Facts, Issues and Contentions, the Act does not give any discretion to the Tribunal to vary or exempt a person from the obligation to satisfy the statutory definition of permanent resident.  There is also no power granted to the Tribunal to extend the legislative provisions or policy considerations so that a child of 16 years or more can still be considered as if he or she is an applicant under the age of 16 years.

33.  The legislative scheme simply does not empower the Tribunal to give consideration of the hardship or disadvantage provisions to a person who does not meet the permanent resident provisions of the Act.

34.  Accordingly, the applicant does not satisfy the eligibility requirements to be granted Australian citizenship and it is the decision of the Tribunal that the decision under review is affirmed.

END OF ORAL DECISION  [11.00 am]