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Tribunal: Senior Member P Fairall

An application for citizenship was rejected by a delegate of the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs on the basis that the applicant was not  a permanent resident when the application was made. 

The application was sent to the Department by registered post a few days before the applicant and his wife left for a short holiday in Thailand.  The application was received the day after the couple left for Thailand.

The applicant held a visa which included a five year travel facility. This allowed multiple re-entries into Australia, up until the date of expiration. This travel facility expired prior to the applicant’s departure, but he remained a permanent resident until he departed Australia. The question was therefore whether he was a permanent resident when the application was “made”.  If his application was “made” only when it was received, that is, after his departure from Australia, then he was ineligible for citizenship.

The Tribunal noted that the time of posting was recorded with exact precision, unlike the time of receipt, which was marked only with a date stamp. In the absence of binding authority, the Tribunal construed the relevant provision in favour of the applicant, finding that the application was “made” when the registered letter was time receipted by the postal service.

In passing, the Tribunal also noted that the letter providing details about the travel facility was poorly drafted.  The letter stated: “Congratulations! You have been granted a permanent visa which allows you to travel to and remain in Australia indefinitely.” This sentence did not capture the finite nature of the travel facility associated with the applicant’s visa.

The Tribunal found that the applicant was a permanent resident at the time the application was made and remitted the matter to the Department for further processing.

Read the full decision