Sever and Minister for Immigration and Citizenship [2011] AATA 449 (28 June 2011)

Last Updated: 29 June 2011

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2011] AATA 449

ADMINISTRATIVE APPEALS TRIBUNAL )

) No 2010/4892

GENERAL ADMINISTRATIVE DIVISION		)
	Re		IBRAHIM SEVER

Applicant

And

MINISTER FOR IMMIGRATION AND CITIZENSHIP

Respondent

DECISION

Tribunal

Ms J L Redfern, Senior Member

Date 28 June 2011

Place Sydney

Decision

The decision under review is affirmed.

......................sgd...........................

Ms J L Redfern

Senior Member

CATCHWORDS

IMMIGRATION – Citizenship – failure to meet residence requirements – period of unlawful presence in Australia – effect of bridging visa provisions where there are applications for merit and judicial review – discretion to treat a person as lawful if unlawful by reason of administrative error – no administrative error – decision affirmed

Australian Citizenship Act 2007 s 20, 21, 22 and 24

Migration Act 1958: s 73

Migration Regulations 1994 reg 2.21A, Item 010.511 and 010.513 of Sch 2

Australian Citizenship Instructions

SZKUO v Minister for Immigration and Citizenship (No 2) [2009] FMCA 498

SZKUO v Minister for Immigration and Citizenship [2009] FCAFC 167; (2009) 180 FCR 438

REASONS FOR DECISION

28 June 2011	Ms J L Redfern, Senior Member
BACKGROUND

1. Mr Ibrahim Sever arrived in Australia on a temporary visa on 28 May 2005. He applied for a permanent residence visa before he came to Australia and was granted the visa, after initial refusal and subsequent reviews, remittals and judicial reviews, on 3 August 2009. On 21 September 2010 Mr Sever made an application for Australian citizenship.
2. Mr Sever’s application was refused on the basis that he was not lawfully present in Australia during part of the relevant period and therefore did not satisfy the residence requirements of the Australian Citizenship Act 2007 (the Citizenship Act). Mr Sever denies that he was not lawfully present and seeks a review of that decision.

LEGISLATIVE AND POLICY FRAMEWORK AND THE ISSUES

3. Section 20 of the Citizenship Act provides that a person will become an Australian citizen if the Minister decides to approve an application under subs 24(1) of the Citizenship Act. This is known as citizenship by conferral.
4. An application for citizenship by conferral may be made where a person meets the eligibility requirements under s 21 of the Citizenship Act.
5. The Minister must not approve an application unless the person is eligible to become an Australian citizen (subs 24(1A) of the Citizenship Act).
6. Relevantly, subs 21(2) of the Citizenship Act provides:

“(2) A person is eligible to become an Australian citizen if the minister is satisfied that the person:

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

(b) is a permanent resident:

(i) at the time the person made the application; and

(ii) at the time of the Minister’s decision on the application; and

(c) satisfies the general residence requirement (see section 22) or the special residence requirement (see section 22A or 22B), or has completed relevant defence service (see section 23), at the time the person made the application; and

(d) understands the nature of an application under subs (1); and

(e) possesses a basic knowledge of the English language; and

(f) has an adequate knowledge of Australia and of the responsibilities and privileges of Australian citizenship; and

(g) is likely to reside, or to continue to reside, in Australia or to maintain a close and continuing association with Australia if the application were to be approved; and

(h) is of good character at the time of the Minister’s decision on the application.”

7. It is common ground that Mr Sever does not satisfy the special residence requirements under ss 22A or 22B, nor has he completed the relevant defence service to qualify under s 23 of the Citizenship Act. As such, to satisfy subs 21(2)(c) of the Citizenship Act Mr Sever must satisfy the general residence requirement.
8. The general residence requirement is set out in subs 22(1) and provides as follows (no emphasis added):

“(1) Subject to this s, for the purposes of s 21 a person satisfies the general residence requirement if:

(a) The person was present in Australia for the period of 4 years immediately before the day the person made the application; and

(b) The person was not present in Australia as an unlawful non-citizen at any time during that 4 year period; 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.”

9. The Minister has discretion in respect of subs 22(1)(b) where there has been “administrative error” as set out in subs 22(4A), which provides:

“For the purpose of paragraph (1)(b), the Minister may 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.”

10. The Australian Citizenship Instructions (ACI) are issued by the Department from time to time to provide guidance to decision-makers. Chapter 5 of the ACI provides guidance on the requirements and eligibility for becoming a citizen by conferral and deals with “administrative error” as follows:

The concept of ‘administrative error’ embraces a range of administrative actions and is not limited to actions by the Department. In broad terms it will extend to administrative mistakes and circumstances in which incorrect information is provided.

11. The Migration Act 1958 (the Migration Act) provides for visas permitting non-citizens to enter or remain in Australia and the Migration Regulations 1994 (the Regulations), made under the Migration Act, prescribe certain matters which are “necessary or convenient to be prescribed for carrying out or giving effect to the [Migration] Act”. Those matters include provisions in respect of the criteria for and effect of bridging visas. Section 73 of the Migration Act provides that if the Minister is satisfied that an eligible non-citizen satisfies the criteria for a bridging visa as prescribed by the Regulations, the Minister must grant a bridging visa permitting the non-citizen to remain in, or to travel to, enter and remain in Australia;
12. Regulation 2.21A provides for the granting of a bridging visa (known as a Bridging A (Class A) visa) without application, pending an application for merits review where the applicant has made an application for a certain class of “migrant” visa as identified in the Regulation, the application is refused or withdrawn and the applicant held a temporary visa immediately before the refusal or withdrawal. This visa may only be granted once in respect of the withdrawal or refusal.
13. Schedule 2 of the Regulation contains provisions “with respect to the grant of subclasses of visas” and sets out the criteria to be satisfied at the time of application for a bridging visa. Relevantly, Item 010.5 sets out when a bridging visa is in effect as follows:

“010.511 In the case of a visa granted to a non-citizen who has applied for a substantive visa – bridging visa:

(a) coming into effect:

(i) on grant; or

(ii) when the substantive visa (if any) held by the holder ceases; and

(b) permitting the holder to remain in Australia until:

(i) if the Minister's decision in respect of the substantive visa application is to grant a visa – the grant of the visa; or

(ii) if the Minister's decision in respect of that application is to refuse to grant a visa – 28 days after the holder is notified of that refusal; or

(iii) if the substantive visa application is refused and the holder applies for merits review of that refusal – 28 days after notification of the decision of:

(A) the review authority; or

(B) if the holder has the right to apply to another review authority for merits review of the decision of that review authority and so applies – 28 days after notification of the decision of that other review authority; or

(iv) the grant of another bridging visa to the holder in respect of the same substantive visa application; or

(v) if the holder withdraws his or her application for a substantive visa or an application to a review authority – 28 days after that withdrawal; or

(vi) if the substantive visa (if any) held by the holder is cancelled – that cancellation; or

(vii) if the holder is notified by Immigration that the substantive visa application is invalid – 28 days after the notification; or

(viii) if a review authority remits the application for
the substantive visa to the Minister for reconsideration – permitting the holder of the bridging visa to remain in Australia in accordance with the relevant provision of this paragraph.

010.513 In the case of a visa granted to a non-citizen on the basis of judicial review of a decision – bridging visa:

(a) coming into effect:

(i) on grant; or

(ii) when the substantive visa (if any) held by the holder ceases; and

(b) permitting the holder to remain in Australia until:

(i) subject to paragraph (c), 28 days after the judicial review proceedings (including proceedings on appeal, if any) are completed; or

(ii) the grant of another bridging visa to the holder in respect of the same application for judicial review; or

(iii) if the holder withdraws his or her application for judicial review – 28 days after that withdrawal; or

(iv) if the substantive visa (if any) held by the holder is cancelled – that cancellation; and

(c) if a court remits a matter to which the judicial review proceedings relate to a review authority, or to the Minister, for reconsideration – permitting the holder to remain in Australia in accordance with the relevant provision of paragraph 010.511 (b).”

14. The effect of these provisions is that if a substantive application of a certain class of visa is refused, the applicant will be given a bridging visa without the need to make an application and the bridging visa will remain in effect until 28 days after notification of the decision of the review authority. If there are subsequent merits or judicial reviews after this first review, it will be necessary for the applicant to make an application for a bridging visa to cover each review because this visa will only have effect for the period of that particular review process. If an application is made and granted on the basis of an application for judicial review, the provisions of Item 010.513 apply and the visa holder will be permitted to stay in Australia for 28 days after the judicial review proceedings are completed. However, if the court remits the matter to a review authority, the visa holder will be entitled to remain in Australia until 28 days after notification of the decision of the review authority.
15. It is not in dispute that Mr Sever was present in Australia for a period of four years immediately before his application and was present as a permanent resident for a period of 12 months immediately before his application. He therefore satisfies the requirements of subs 22(1)(a) and (c). However, a delegate of the Minister refused his application on the basis that Mr Sever was not lawfully present in Australia in the period 1 November 2008 to 24 February 2009 and does not satisfy subs 22(1)(b).
16. Mr Sever denies he was unlawfully present in Australia and contends he had the benefit of bridging visas during the period of his various reviews and remittals. He was ultimately successful on those reviews. Alternatively, he submits it was not his fault that an application for a bridging visa was not made when he made his final application for judicial review - neither his lawyer nor the Department of Immigration and Citizenship (the Department) told him his previous bridging visa had ceased to have effect.
17. The issues for the Tribunal are:

(a) Was Mr Sever present as an ‘unlawful non-citizen’ in the four year period before his application?

(b) If so, was this because of any administrative error and is there a discretion available under s 22(4A) of the Citizenship Act? If there is discretion, how should it be exercised?

BACKGROUND FACTS

18. Mr Sever applied for a Partner (Migrant) (Class BC) visa on 25 May 2005. This was a permanent residence visa. He was granted a temporary visa on 22 August 2005 and arrived in Australia on this visa on 28 August 2005. His application for permanent residence was refused by a delegate of the Minister on 10 October 2006. On this same date Mr Sever applied for review to the Migration Review Tribunal (MRT).
19. By reason of Regulation 2.21A Mr Sever was granted a bridging visa from 10 October 2006.
20. On 13 February 2007 the MRT found it had no jurisdiction to review the application and published its reasons on 14 February 2007 (the first MRT decision). These were sent to Mr Sever’s migration agent at the time and deemed to be notified on 20 February 2007.
21. Mr Sever applied for judicial review of the decision of the first MRT decision on 14 March 2007.
22. Under the provisions of Item 010.511(b)(iii)(A) of Sch 2 to the Regulations the bridging visa ceased on 20 March 2007, which was 28 days after notification of the first MRT decision, and Mr Sever applied for a further bridging visa, which was granted on that day.
23. The Federal Magistrates Court quashed the first MRT decision and remitted the matter to the MRT for reconsideration. The MRT affirmed the decision of the delegate and refused Mr Sever’s application for a permanent residence visa on 24 September 2008 (the second MRT decision). The MRT published its reasons on 3 October 2008 and Mr Sever’s lawyers were notified on this day.
24. Mr Sever applied for judicial review of the second MRT decision but did not apply for a further bridging visa to cover this review process. It appears from correspondence to the Department dated 8 September 2010 in relation to Mr Sever’s present application for citizenship, his lawyers had formed the view that the original Bridging Visa A covered all periods of review from 10 October 2010 until 3 August 2009, when the application was finally determined in Mr Sever’s favour.
25. On 18 February 2009 the Federal Magistrates Court quashed the second MRT decision and again remitted the matter to the MRT for reconsideration.
26. On 24 February 2009 Mr Sever applied for and was granted a bridging visa, being a Bridging Visa E (which is a subclass of bridging visa that applies where a person is not lawfully present in Australia at the time of application) and subsequently a further Bridging Visa A on 6 April 2009.
27. The MRT considered Mr Sever’s application and on 18 May 2009 remitted the matter to the Minister for reconsideration (the third MRT decision). A delegate of the Minister granted Mr Sever’s application for a permanent residence visa on 3 August 2009.
28. There is no evidence about the circumstances in respect of which Mr Sever, or his lawyers, applied for bridging visas on 20 March 2007 or 24 February 2009. Mr Sever was initially represented by migration agents for the first review but after this was represented by lawyers. Mr Sever submits that he did not know he needed to apply for a bridging visa to cover the second judicial review process and that if his lawyer or the Department had advised him of this he would have made an application. The Minister does not contest this and I accept this to be true.

WAS MR SEVER PRESENT AS AN UNLAWFUL NON-CITIZEN DURING THE RELEVANT PERIOD?

29. Mr Sever had a bridging visa in place to cover the first merits review and this visa expired on 30 March 2007. Mr Sever applied for a further bridging visa to cover the judicial review process on 30 March 2007, which suggests those representing him understood the initial bridging visa had ceased to have effect on this day.
30. Under the provisions of Item 010.513(c) of Sch 2 to the Regulations, incorporating the provisions of Item 010.511(b)(iii)(a) for the remittal to the MRT, the bridging visa ceased on 31 October 2008, which was 28 days after notification of the second MRT decision.
31. It is not in dispute that neither Mr Sever nor his lawyers applied for a further bridging visa on 31 October 2008 to cover the second judicial review process, although an application was made about a week after the Federal Magistrates Court quashed the second MRT decision.
32. Given the operation of these provisions, I find that Mr Sever did not hold a valid visa as at 1 November 2008 until he applied for and was granted a bridging visa on 24 February 2009.
33. The Minister properly raised for the Tribunal’s consideration whether the fact that the second MRT decision was quashed by the Federal Magistrate’s Court on 18 February 2009 had any effect on the operation of the bridging visa made on 20 March 2007.
34. This issue was considered by Emmet FM in SZKUO v Minister for Immigration and Citizenship (No 2) [2009] FMCA 498. Emmet FM stated at [65] as follows (no emphasis added):

“The scheme of the provisions makes clear that a reference to notification of the decision is a reference to a decision by a tribunal, whether or not the decision is later found to be affected by jurisdictional error. Regulation 010 .511(b) of the Regulations does not require that the decision of which notification has been given must be a valid decision. It refers, relevantly, only to notification of the decision of the review authority, in this case, the Refugee Review Tribunal. Notice of that decision, even though it may be affected by jurisdictional error, has been given.”

35. On appeal the Full Court (SZKUO v Minister for Immigration and Citizenship [2009] FCAFC 167; (2009) 180 FCR 438) considered the construction of Item 010.511(b)(iii)(A) of Sch 2 and stated as follows at [33]:

“... As the Minister submits, the provision, properly construed, operates only when notice (meaning a valid notice) has been given. The provision, however, does not require that the decision of which notice has been given to have been validly made. The word "decision", in this specific context, means all types of decisions provided for in the Act whether purported decisions or not.”

36. Given the decisions in SZKUO, I accept the Minister’s contention that the decision of the Federal Magistrates Court on 18 May 2009 quashing the second MRT decision had no bearing on the date on which the bridging visa granted on 30 March 2007 ceased to have effect.
37. I therefore find that Mr Sever was present in Australia as an unlawful non-citizen in the period 1 November 2008 to 24 February 2009.

WAS THERE ADMINISTRATIVE ERROR AND IS THERE DISCRETION?

38. Mr Sever contends the Department should have told him his visa had no effect after 31 October 2008 and that he should make a new application for a bridging visa. The Minister contends there is no obligation on the Department to give such advice to an applicant and the onus is on the applicant to make their own enquiries about visas. The Department provides information about visas on its website with translation services and also offers dedicated telephone enquiry lines for this purpose.
39. The meaning of “administrative error” for the purposes of subs 22(4A) is not defined in the Citizenship Act. However, guidance can be found in the ACI, which provides examples of instances where the discretion may apply. This guidance, and the ordinary meaning of the words, suggests there will only be “administrative error” where there is error or mistake resulting from procedures adopted or implemented by the Department or others.
40. There is no evidence the Department failed to follow procedures requiring staff to advise Mr Sever about the need to apply for a further bridging visa. Indeed, the Minister contends there is no such obligation. Nor is there any suggestion Mr Sever was discussing these matters with the Department at the time or that he was given incorrect information by staff. Mr Sever had lawyers acting for him and the lawyers were Accredited Specialists in Immigration Law with the New South Wales Law Society. He relied on them and while I accept the operation of the bridging visa provisions is complicated, the failure to apply was either an oversight or a mistaken understanding by his lawyers about the need to apply for a bridging visa to cover the second judicial review process. In my view, this is not administrative error within the meaning of subs 22(4A).
41. If there had been incorrect information provided to Mr Sever by the Department about the need for a visa and, on the basis of this incorrect information, Mr Sever had refrained from obtaining a bridging visa that he would otherwise have been granted, Mr Sever may have had some cause to complain. However, there is no such evidence.
42. In the absence of administrative error there is no discretion to treat the period of unlawful presence as lawful. This is no doubt very frustrating for Mr Sever given that he was successful in his application for permanent residence after numerous merits and judicial reviews over a period of nearly three years. He may still become an Australian citizen but will now have to wait until February 2013 before he can re-apply.

CONCLUSION

43. Mr Sever does not satisfy the general residence requirement of subs 21(2)(c) of the Citizenship Act and is not eligible to become an Australian citizen. His application therefore must be refused.
44. I am satisfied that the decision under review is correct and should be affirmed.

I certify that the 44 preceding paragraphs are a true copy of the reasons for the decision herein of Ms J L Redfern, Senior Member.

Signed: ........sgd..........................................................................

Casey Comans, Associate

Date of Hearing 21 June 2011

Date of Decision 28 June 2011

Solicitor for the Applicant Self-represented

Solicitor for the Respondent Ms Alexandra Collins, Clayton UTZ