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Administrative Appeals Tribunal of Australia |
Last Updated: 2 February 2011
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2011] AATA 44
ADMINISTRATIVE APPEALS TRIBUNAL )
) No: 2010/4062
Applicant
Respondent
DECISION
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Decision
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The Tribunal affirms the decision under review.
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..(sgd) C Walsh......
Senior Member
CATCHWORDS
Immigration - citizenship – general residence requirement – unlawful non-citizen- bridging visa A-bridging visa B - when visas cease to be in effect – administrative error discretion
LEGISLATION
Migration Act 1958 (Cth)
– section 13 – section 14 – section 82(8)
Australian
Citizenship Act 2007 (Cth) – section 21(2) – section 22(1) - section
22(4A) - section 24
CASES
Re Melhem and Minister for Immigration and Citizenship
[2010] AATA 993
Minister of Immigration and Ethnic Affairs v Petrovski
[1997] FCA 154; (1997) 73 FCR 303
Re Liu & Department of Immigration & Ethnic
Affairs (1996) 41 ALD 589
Dranichnikov v Centrelink [2003] FCAFC
13
Waajer and Minister for Immigration and Citizenship [2010] AATA
913
REASONS FOR DECISION
WAS THE MINISTER’S DECISION TO REFUSE MR RAIS’ APPLICATION FOR AUSTRALIAN CITIZENSHIP THE CORRECT OR PREFERABLE ONE?
“(a) the person was present in Australia for the period of 4 years immediately before the day the person made the application [for Australian citizenship]; and
(b) the person was not present in Australia as an unlawful non-citizen at any time during that 4 year period [i.e. before the application for Australian citizenship]; and
(c) the person was present in Australia as a permanent resident for the period of 12 months immediately before the day the person made the application.” [Emphasis added].
7. Section 3 of the Citizenship Act states that the expression "unlawful non-citizen" has the same meaning as in the Migration Act 1958 (Cth) (Migration Act). Section 14(1) of the Migration Act defines “unlawful non-citizen” to mean a non-citizen in the “migration zone” (which expression is defined in section 5 of the Migration Act as broadly meaning Australia) who is not a “lawful non-citizen”. Section 13(1) of the Migration Act defines “lawful non-citizen” to mean a non-citizen in the “migration zone” (i.e. Australia) who holds a visa that is “in effect”.
8. Ordinarily, when a person applies for a substantive visa, such as a Subclass 457 visa, that application also constitutes an application for and the grant of a BVA: see items 1223A(1)(ba)(iv) and 1301(1) of Schedule 1 of the Migration Regulations 1994 (Cth) (Migration Regulations). When Mr Rais applied for his Second Subclass 457 visa on 22 October 2008, his application also constituted an application for and resulted in the grant of a BVA.
9. A bridging visa is a temporary visa that allows a non-citizen to remain lawful in certain circumstances where they do not hold a substantive visa. The circumstances in which a bridging visa may be granted include where a non-citizen has made an application for a substantive visa which has not yet been decided by the Department. There are five classes of bridging visa. Relevant for present purposes are a BVA and a Bridging Visa B (BVB). The purpose of a person being granted a BVA, is to enable that person to remain in Australia ‘lawfully’ pending his or her application for a substantive visa being processed by the Department. A BVA generally has the same work conditions as the substantive visa that the applicant holds. Further, a BVA is a visa "permitting the holder to remain in Australia" until certain events occur: see subclause 010.511(b) of Schedule 2 of the Migration Regulations. Importantly, BVA which permits a non-citizen holder to “remain in Australia” but it is not a visa which entitles a non-citizen holder to "travel to and enter Australia", as may be the case in relation to a substantive visa issued to a non-citizen: refer to section 29(1)(a) and (b) of the Migration Act. In contrast, a BVB (referred to by the Department as the ‘travel visa’) is the only bridging visa which permits a non-citizen to return to Australia Bridging Visa B (BVB) once that non-citizen has departed Australia (i.e. a BVA ceases if the non-citizen leaves Australia). A BVB is for those non-citizens who have a BVA (or an existing BVB) and have substantial reasons for travelling overseas while their substantive visa application is processed. A BVB has the same work conditions as the BVA (or BVB) held by the applicant at the time.
10. Circumstances in which a BVA "ceases to be in effect" are set out at section 82 of the Migration Act. Relevant for present purposes is section 82(8) of the Migration Act which states:
“A visa to remain in, but not re-enter, Australia that is granted to a non-citizen in Australia ceases to be in effect if the holder leaves Australia”. [Emphasis added]
11. In the case of Mr Rais, the BVA which was granted to him on 22 October 2008 in connection with his application for his Second Subclass 457 visa “ceased to be in effect” upon his departure from Australia on 10 December 2008 pursuant to section 82(8) of the Migration Act. That caused Mr Rais to become an “unlawful non-citizen” as defined in section 13 of the Migration Act for the period from 9 January 2009 (i.e. after his First Subclass 457 visa expired on 8 January 2009) to 3 February 2009 when he applied for a Class VE visa and was granted a BVA accordingly. Since the period in which Mr Rais was an “unlawful non-citizen” fell within the period 4 years prior to his citizenship application, he failed to satisfy the “general residence requirement” in section 22(1)(b) of the Citizenship Act and, it follows, the general eligibility criteria in section 21 of the Citizenship Act.
SHOULD THE ADMINISTRATIVE ERROR DISCRETION IN SECTION 22(4A) OF THE CITIZENSHIP ACT APPLY TO MR RAIS?
12. For the purposes of the ‘general residence requirement’ in section 22(1)(b) of the Citizenship Act, the Minister has a discretion under section 22(4A) of the Citizenship Act to:
“...treat a period as one in which the person was not present in Australia as an unlawful non-citizen if the Minister considers the person was present in Australia during that period but, because of an administrative error, was an unlawful non-citizen during that period.” [Emphasis added]
13. That is, section 22(4A) of the Citizenship Act allows the Minister to treat periods spent in Australia by a person as an “unlawful non-citizen” as a result of an “administrative error” as a period of lawful permanent residence.
14. The expression “administrative error” is not defined in the Citizenship Act. However, the Australian Citizenship Instructions 2009 provide examples of “administrative errors”, including unlawful cancellation of a visa, grant of a temporary visa to a permanent visa holder and double processing of a visa application.
15. Some further interpretative guidance as to what constitutes “administrative error” is provided by the Australian Citizenship Instructions (Old Instructions) which relate to section 13(4)(b)(v) of the Australian Citizenship Act 1948 (Cth), the predecessor of the Citizenship Act (Old Citizenship Act). Section 13(4)(b)(v) of the Old Citizenship Act had the same effect as section 22(1)(c) of the Citizenship Act. The Old Instructions state (at 3.9.7) that instances of an “administrative error” are as follows:
“(a) a temporary entry permit was issued to the holder of a migrant visa and there was no reason not to issue a permanent entry permit.
(b) the holder of a migrant visa passed through immigration control at the port of arrival in Australia without an entry permit being stamped in his/her travel document.
(c) an application for change of status has been approved and the applicant is not issued with an entry permit.”
16. The Old Instructions also provide that the delegated officer must in every case be satisfied that actual error on the part of administration has occurred. For instance, it cannot be assumed that the issue of a temporary entry permit to the holder of a migrant visa is always incorrect or that approved applicants for resident status do not themselves fail to comply with departmental requests.
17. In Re Liu & Department of Immigration & Ethnic Affairs (1996) 41 ALD 589 President Purvis made the following comments (at 595) regarding what constitutes "administrative error" for the purposes of the Old Citizenship Act:
“This tribunal would, with respect, agree that the examples of administrative error given by the instructions are not comprehensive or exhaustive. They are not intended so to be. An “error” is defined in the Macquarie Dictionary as a deviation from accuracy or correctness, a mistake, and “administrative” as pertaining to administration; executive; administrative ability, problems etc.”
18. Further, in Re Melhem and Minister for Immigration and Citizenship [2010] AATA 993, Senior Member Toohey, in considering the meaning of "administrative error" for the purposes of section 22(4A) of the Citizenship Act, referred to the decision in Dranichnikov v Centrelink [2003] FCAFC 13: refer also to Waaijer v Minister for Immigration & Citizenship [2010] AATA 913. In Dranichnikov, the Court stated (at [62]) that it was not possible to formulate a meaning of “administrative error” that would cover every case that might arise, but said:
“Essentially, however, the concept is one where the error or mistake arises as a result of the procedure that has been adopted. An obvious example would be payment of a benefit where the decimal point was wrongly located. An error made by Centrelink or the Australian Taxation Office acting on its behalf in its administration of the law will generally be an administrative error. On the other hand, a decision made, for example, on a question of legal entitlement to a benefit while no doubt made in the course of administration of the law would not be an administrative error.”
19. On 21 September 2010, after receiving the Minister’s decision (dated 2 September 2010) to refuse his citizenship application, Mr Rais wrote a lengthy letter to the Manager of the Perth Citizenship Branch of the Department expressing his grievance at the alleged misinformation that he had obtained from the Department in relation to his eligibility for citizenship. The Manager responded to that letter on 29 September 2009 with a letter which sought to explain to Mr Rais why he had become an “unlawful non-citizen” in the relevant period. That letter also stated:
“....I would like to apologise if you were given incomplete information when you first approached the Department enquiring about your eligibility in applying for a Citizenship application. I apologise if you were provided with inconsistent information from departmental officers.................
Technically, there has been no administrative error and as such we could not approve your application because you did not meet the lawful in Australia general residence requirement (Section 22(b)).”
20. Mr Rais informed the Tribunal that he had been living in Australia since 15 July 2005 and that he “had no reasons at any stage during [his] stay in Australia to become unlawful and spoil [his] opportunity that would come [his] way as an Australian citizen.” He claimed that he had become ‘unlawful’ as a result of the misguidance of and misinformation provided to him by the Department. In particular, Mr Rais asserted:
“2. The time duration under debate here and my actions associated in getting to this state (unlawful in the country) were purely based on the guidance provided by the Department personnel. I was misguided to believe that I had no actions to take prior to the expiry of my visa at the time.
3. It is not that I failed to understand the instructions to be followed in regards to the state of unlawfulness but it is the department representatives who provide false and inaccurate information. Examples of which are my previous communications with the department during the possession of sponsorship visas.
21. Mr Rais also claimed that he was verbally misled by the Department twice concerning his eligibility for Australian citizenship prior to its rejection of his application. According to Mr Rais, he was told by departmental officers that he was eligible to become an Australian citizen on 1 August 2010 first on 19 March 2010 and again on 4 August 2010 and that on “both [those] occasions the confirmation was given by the officers after consulting their computer data base”. There is no written evidence of such advice being provided to Mr Rais by the Department.
22. Further, Mr Rais contended that he went into to the Department before departing Australian on 10 December 2008 to ensure that his visa status was “accurate and up to date” so that he would be able to travel out of and back into Australia without any visa problems. He submitted that the Department failed to inform him, at that time, about bridging visa requirements and that had he known that he could have applied for and obtained a BVB before departing Australia (which would have enabled him to travel out of and back into Australia without causing him to become an “unlawful non-citizen”) he would have done so. There was no written evidence of Mr Rais’ conversations with the Department prior to him leaving Australia in December 2008 or that he had been misguided by the Department in any way. Mr Rais said that he has been shown written inter-division communication “which highlighted the fact that [he] was notified ‘various times through written communication sent via registered mail’, of the fact that [he was] required to apply for a bridging visa” before he departed Australia but that he had never received that mail. Mr Rais asserted that non-citizens like him have a right to be provided with correct information by the Department and that the Department should train their staff better so that they do not misguide or misinform people.
23. Mr Rais also advised the Tribunal that upon his return to Australia his employer made enquiries with the Department via the internet concerning his visa status and that as his employer received e-mail confirmation that Mr Rais’ visa status was current, he thought that he did not have to take any further action. He believes that the Department should have advised him to apply for his Class VE visa immediately upon his return to Australia on 2 January 2009. That way, he would have been granted with a BVA at the same time such that when his First Subclass 457 visa expired on 8 January 2009, he would not have become an “unlawful non-citizen” and thereby delay his eligibility to become an Australian citizen.
24. Further, Mr Rais advised the Tribunal that he was no longer employed as the “psychological stress and mental strain” associated with the refusal of his citizenship application had caused him to underperform at work and ultimately to lose his job. He believes that, as a consequence, he should either be granted citizenship or be compensated (a minimum of $25,000, equivalent to 4 month’s salary) by the Department.
25. In contrast, the Minister contended that the onus falls on the non-citizen applicant, in this case Mr Rais, to ensure that they have an effective visa in place and that even if Mr Rais’ allegations regarding misinformation or misguidance on the part of the Department were true, they do prevent the Minister from applying the legislation as it stands and refusing Mr Rais citizenship. The Minister submitted that it is well established that there can be no estoppel against the exercise of a statutory discretion: Minister of Immigration and Ethnic Affairs v Petrovski [1997] FCA 154; (1997) 73 FCR 303. The Minister further argued that even if the Department told Mr Rais that he was entitled to leave Australia without having to apply for a BVB, this does not constitute an “administrative error” and, in any event, when Mr Rais left Australia he held a valid Subclass 457 visa which entitled him to re-enter Australia and which remained effective until 8 January 2009. In other words, technically Mr Rais did not have to apply for a BVB to leave and re-enter Australia hence the Department did not misguide him in any way. The Minister also asserted that if Mr Rais needed assistance in understanding the complexities of the Citizenship Act and the Migration Act he could, as many others in his position have, sought the help of a migration agent rather than relying solely on the advice provided to him by the Department staff.
26. It is most regrettable that Mr Rais’ entitlement to become an Australian citizen has been delayed because he did not know or was not advised by the Department to either: (i) apply for a BVB before departing Australia for Pakistan in December 2008; or (ii) to apply for his Class VE visa (and with it a BVA) upon his return to Australia on 2 January 2009 and before the expiration of Second Subclass 457 visa on 8 January 2009.
27. However, the Tribunal agrees with the Minister that that does not change the fact that, as a matter of law, as a consequence of leaving Australia in December 2009 Mr Rais’ BVA became ineffective such that when his First Subclass 457 visa expired on 8 January 2009 he became an “unlawful non-citizen” and consequently ineligible to become an Australian citizen under the Citizenship Act. Unfortunately for Mr Rais, his claims regarding his dealings with the Department do not constitute “administrative error” as that expression is understood to mean and as such section 22(4A) has no application in his case: Re Liu, Re Melhem, Dranichnikov and Waaijer applied. As regards Mr Rais’ claim for compensation for the alleged misguidance of and misinformation provided by officers of the Department, such a claim is outside the Tribunal’s jurisdiction and Mr Rais would need to explore such a claim in a different forum.
28. For the above reasons, the Tribunal affirms the decision under review. Specifically, the Tribunal affirms the decision made by a delegate of the Minister on 2 September 2009 to refuse Mr Rais’ application for Australian Citizenship.
I certify that the 28 preceding paragraphs are a true copy of the reasons for the decision herein of C WALSH, SENIOR MEMBER
Signed:.. sgd ( T Freeman)..............
Associate
Date/s of Hearing 21 January 2011
Date of Decision 31 January 2011
Representative for the Applicant Mr B Rais (Self-represented)
Solicitor for the Respondent Mr D Estrin
Australian Government Solicitor
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