Kim v Administrative Appeals Tribunal

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.