Kim v Administrative Appeals Tribunal

Federal Court of Australia|2014-03-18|Before: Farrell J

REASONS FOR JUDGMENT 1 By originating application filed on 14 August 2013, the applicants sought judicial review under s 476A of the Migration Act 1958 (Cth) (Migration Act) of a decision of the Administrative Affairs Tribunal (Tribunal) made on 15 July 2013. However, pursuant to orders of this Court made on 19 September 2013, the applicants are instead taken to have lodged an appeal on a question of law pursuant to s 44 of the Administrative Appeals Tribunal Act 1975 (Cth) (AAT Act). The appeal is made against a decision of the Tribunal to affirm decisions of a delegate (Delegate) of the second respondent (Minister) made on 24 January 2013 to refuse their applications for Australian citizenship made on 18 January 2013.

Background 2 The applicants are brothers who were born in the Republic of Korea. They arrived in Australia in December 2002 on subclass 976 Electronic Travel (Visitor) visas at the ages of six and four respectively. On 7 December 2012, the applicants were each granted a subclass 050 Bridging (General) visa (bridging visa) that was valid until 26 January 2013. A condition of the visa was that the holder departs Australia by a specified date (26 January 2013) [CB 81]. As they were both under the age of 18 years on 18 January 2013, the applicants applied for Australian citizenship under section 21(1) of the Australian Citizenship Act 2007 (Cth) (Citizenship Act). 3 The Delegate made separate decisions to refuse the applications on the basis that s 21(5)(b) of the Citizenship Act requires that a person under the age of 18 be a permanent resident both at the time of making the application for citizenship and at the time of the Minister's decision on the application. The Delegate decided that the applicants did not satisfy that requirement because they held bridging visas which he said were not permanent visas and therefore the applicants could not be permanent residents. 4 Section 5 of the Citizenship Act provides that a person is a permanent resident at a particular time if and only if (relevantly) "the person is present in Australia at that time and holds a permanent visa at that time". Section 3 of the Citizenship Act defines 'permanent visa' as having the same meaning as that ascribed to it under the Migration Act. 5 Section 30(1) of the Migration Act provides: 30 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. 6 Section 37 and 73 of the Migration Act stipulate, respectively: 37 Bridging visas There are classes of temporary visas, to be known as bridging visas, to be granted under Subdivision AF. … 73 Further applications for bridging visas If the Minister is satisfied that an eligible non-citizen satisfies the criteria for a bridging visa as prescribed under subsection 31(3), the Minister may grant a bridging visa permitting the non-citizen to remain in, or to travel to, enter and remain in Australia: (a) during a specified period; or (b) until a specified event happens.

The Tribunal Decision 7 After setting out the relevant provisions of the Citizenship Act and the Migration Act, the Tribunal's statement of reasons for its decision, given at the end of its proceedings on 15 July 2013, went on to say: 12. Mrs Kim, the mother of Jae Min and Jae Won Kim said that she has been living in Australia for more than 10 years, and that this indicated permanent residence which would flow to her sons. However, she also holds a bridging visa. 13. She sought to advance an argument that the use of the word "may" in sections 30(1) and (2) indicates a discretion to regard a bridging visa as a permanent visa. I do not accept this submission. Bridging visas are clearly classed as temporary visas in section 37 of the Migration Act. 14. The combined effect of the provisions of the Citizenship Act and the Migration Act, extracted above, is that for a person under 18 years to be eligible for Australian citizenship, the person must hold a permanent visa. The bridging visas held by Jae Min and Jae Won Kim are not permanent visas. It follows that they are not eligible for Australian citizenship.

The Present Appeal 8 The grounds of appeal are as follows: 1. The Administrative Appeals Tribunal failed to interpret a correct law in relation to the Australian Citizenship Act. 2. The Administrative Appeals Tribunal failed to consider relevant facts that are related to intrepset [sic] the relevant laws. 9 The applicants' mother is known as Ms Ok Kyung Shin (Ms Shin) but was referred to as Mrs Kim in the Tribunal's statement of reasons. She represented the applicants at the hearing and did not provide written submissions. The Minister's representative appeared at the hearing and provided written submissions. 10 Ms Shin relied on the legal arguments which had been raised before the Tribunal. 11 The Minister submits that the clear import of s 30 of the Migration Act is that permanent and temporary visas are distinct categories of visa, and a permanent visa "entitles the holder to remain in Australia indefinitely": see Re Patterson, Ex parte Taylor (2001) 207 CLR 391 at [161] per Gummow and Hayne JJ, Anand v Minister for Immigration and Citizenship [2013] FCA 1050 at [9] per Katzmann J. 12 The Minister further submits that bridging visas (as defined in s 37 of the Migration Act) are temporary visas which do not confer the right to permanent residency: see Islam v Minister for Immigration and Citizenship [2012] FCA 201 at [18] per Jagot J. Their status as temporary visas is confirmed by the terms of s 73 which confers on the Minister the power to grant bridging visas but only for a specified period or until a specified event; that is inconsistent with the concept of a right to remain indefinitely. Further, the heading of Schedule 1 Part 2 of the Migration Regulations 1994 (Cth) is instructive: it refers to "Temporary visas (other than bridging visas)". Part 1 is headed "Permanent visas" and Part 3 is headed "Bridging visas". The Minister submits that this is consistent with a Bridging Visa being a type of temporary visa. 13 The Minister also submits that Mrs Kim's argument before the Tribunal that the status of a person holding a bridging visa is "indefinite" because on its expiry the Minister may decide to grant a fresh visa (of the same or a different class) is untenable; bridging visas are only issued for a specified time or until the happening of a specified event and therefore do not confer the right to remain indefinitely. 14 In relation to ground two, the Minister says that the only "relevant facts" are that the applicants are under 18 years of age and they are not permanent residents because, as the holders of bridging visas, they do not hold permanent visas. These are the "facts" relevant to eligibility for citizenship under s 21(5) of the Citizenship Act.

Consideration 15 The use of "may" in s 30(1) is curious and it is, interpreted in accordance with s 33(2A) of the Acts Interpretation Act 1901 (Cth), indicative of a discretion. However, the interpretation contended for by Ms Shin cannot be sustained. It is the scheme of the Migration Act to differentiate between permanent visas, which confer a right to remain indefinitely in Australia without the need for a further decision by the Minister and other visas, called temporary visas, which are limited to a specified time, the happening of a specified event or have effect while a person has a specified status. At the end of the specified time, upon the happening of a specified event or upon a change of the specified status, the right to remain in Australia ends. A new decision of the Minister is required to establish the basis of the right of a non-citizen to remain in Australia and therefore a visa which is subject to a specified constraint as to time, event or status cannot be said to confer an indefinite right to remain in Australia and it cannot be a permanent visa as required to satisfy the definition of "permanent resident". As a result, the requirements of s 21(5)(b) of the Citizenship Act are not satisfied as the applicants do not hold permanent visas and did not at the time they applied for citizenship.

Conclusion 16 For the reasons submitted by the Minister, I am satisfied that the Tribunal did not err in reaching its decision at [14] of its statement of reasons. The appeal should be dismissed and Ms Shin should pay the costs of the Minister as agreed, or failing agreement, as assessed. The name of the second respondent should be amended to "Minister for Immigration and Border Protection". I certify that the preceding sixteen (16) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Farrell.

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