Akram and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Citizenship) - [2024] AATA 2576

Akram and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Citizenship) [2024] AATA 2576 (22 July 2024)
Division:GENERAL DIVISION
File Number: 2024/0736
Re:Muhammad Akram
APPLICANT

AndMinister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
RESPONDENT

DECISION
Tribunal:Senior Member D. J. Morris
Date:22 July 2024
Place:Hobart

Pursuant to s 43(1)(a) of the Administrative Appeals Tribunal Act 1975, the Tribunal affirms the decision under review.
..................................[signed]......................................
Senior Member D. J. Morris
Catchwords
CITIZENSHIP – Australian citizenship by conferral – applicant is a citizen of the Islamic Republic of Pakistan – applicant first arrived in Australia as unauthorized maritime arrival – visa history – applicant held Safe Haven Enterprise (subclass 790) visa – applicant sought ministerial intervention to enable him to apply for a visa with a pathway to permanent residency – applicant sought ministerial intervention under one part of Migration Act - minister decided to intervene to grant applicant Former Resident (subclass 151) visa under different part of Act – Department advised applicant he needed to consent to have his visa cancelled – applicant agreed – Notice sent to applicant alerted him that cancellation of visa will make him unlawful non-citizen in Australia – applicant confirmed he understood consequences of cancellation – applicant invited to attend Department – visa cancelled – applicant held in administrative detention – minister intervened and granted fresh visa – applicant later lodged application for Australian citizenship by conferral – general residence requirement – has applicant been unlawful non-citizen in four year period before applying for citizenship – applicant found to have been unlawful non-citizen in Australia for period of approximately two and a half hours – no distinction between administrative detention and detention – has there been administrative error – choice of discretionary power exercised by minister – administrative process followed by Department – no administrative error – other exemptions not relevant to applicant – no other discretion available to decision-maker – decision under review is affirmed
Legislation
Administrative Appeals Tribunal Act 1975 (Cth)
Australian Citizenship Act 2007 (Cth)
Cases
Chaudhary and Minister for Immigration and Citizenship; Re: [2010] AATA 1006
Rogers and Minister for Immigration and Citizenship; Re: [2011] AATA 592
Severs and Minister for Immigration and Citizenship; Re: [2011] AATA 449
Secondary Materials
Parliament of the Commonwealth of Australia – House of Representatives – Explanatory Memorandum – Australian Citizenship Bill 2007
Revised Citizenship Procedural Instructions (CPIs) – CPI 8 – Residence Requirements and Discretions (Reissued 1 July 2023)
REASONS FOR DECISION
Senior Member D. J. Morris
xx July 2024
OPENING SUMMARY

The Applicant, Mr Muhummad Akram, applied for Australian Citizenship by conferral. He met all the requirements that were assessed by an officer of the Department of Home Affairs (‘the Department’) considering his application – except one. Because of that, the officer ceased assessing the other requirements and rejected the citizenship application.
In May 2022, by arrangement, Mr Akram had attended the Department’s Melbourne offices. At his request, the visa he held was cancelled. He waited in a meeting room and then was told, about two and a half hours later, that the Minister had intervened personally and granted him a new visa. That visa gave him permanent residency. Eighteen months later in December 2023, the Applicant applied for citizenship. His application was refused on the basis that he had been an unlawful non-citizen in Australia at some time in the four years before he applied for citizenship. Mr Akram sought review of that decision by the Tribunal.
HEARING
A hearing was held by video on 18 July 2024, as permitted under s 33A of the Administrative Appeals Tribunal Act 1975 (‘the AAT Act’). The Applicant represented himself. Ms Felicidade Lay of Minter Ellison represented the Respondent. The Applicant made submissions and was cross-examined. No other witnesses were called.
The Tribunal had regard for a Statement of Facts, Issues and Contentions (‘SFIC’) from the Applicant, dated 2 July 2024 with annexures. The Respondent also lodged a SFIC, dated 18 June 2024.
The Tribunal also admitted the following documents into evidence:
(a) Volume of documents submitted under s 37 of the AAT Act (‘TD’) (Exhibit R1);
(b)Volume of supplementary documents submitted under s 38AA of the AAT Act (‘ST’) (Exhibit R2);
(c)Annexures to Applicant’s SFIC (Exhibit A1);
(c) Applicant’s submission dated 2 April 2024 (Exhibit A2);
(d) Applicant’s supplementary submission dated 23 May 2024 (Exhibit A3);
BACKGROUND
Recent visa history
The following is common ground. The Applicant is a citizen of the Islamic Republic of Pakistan. He arrived in Australia in July 2012 as an unauthorised maritime arrival. In 2016 he was granted a Temporary Protection Visa. In April 2021 he was granted a Safe Haven Enterprise (subclass 790) visa (‘SHEV’).
At the end of April 2021, Mr Akram made a request for ministerial intervention under s 46A(2) of the Migration Act 1958 (‘the Migration Act’), to enable him to apply for a visa listed in the SHEV pathway to permanent residency. In July 2021, the Applicant lodged a further request for the minister to intervene under s 46A(2) of the Migration Act (TD, p 105). Section 46A allows the Minister to issue a notice permitting an unauthorised maritime arrival to apply for a visa specified in the Minister’s determination.
On 16 May 2022, the Department contacted Mr Akram and advised that it had initiated a ministerial intervention request under s 195A of the Migration Act (TD, p 107). The papers before the Tribunal reveal that the Minister’s office had directed them to do so, in response, it appears, to representations made by, and on behalf of, Mr Akram (ST, pp 1-2).
On 17 May 2022, an officer the Department telephoned the Applicant to advise him that the Minister had decided to intervene and grant him a new visa. The officer discussed arrangements for Mr Akram to attend the Department’s Melbourne offices on 19 May 2022 at 9.00 am. An officer then emailed the Applicant along the following lines at 1.48 pm on 17 May 2022 (TD, p 112):
Dear Mr Akram
I am writing regarding your request for the Minister to intervene in your case.
The Minister will be intervening on 19 May 2022. You will shortly receive appointment details from Status Resolution.
Part of the process for the Minister to intervene is that you need to be unlawful. This means, you will need to provide consent to have your SHEV (subclass 790) voluntarily cancelled.
To initiate the process, I would be grateful if you can please respond to this email with the following:
- confirmation that you consent to the Department communicating with you via this email address so we can issue you with a Notice of Intention to Consider Cancellation.
- written confirmation that you are requesting the voluntary cancellation of your current SHEV (subclass 790).
Once this has been received, we will get the process underway ahead of Thursday’s scheduled appointment.
On 17 May 2022, Mr Akram provided the Department with written consent to (a) receive email correspondence and (b) requested the voluntary cancellation of his SHEV (TD, p 113).
Later on 17 May 2022, the Department emailed a Notice of Intention to Consider Cancellation (‘Notice’)(TD, p 114). The Notice relevantly stated that there are some consequences for a person when their visa is voluntarily cancelled in a circumstance where they are waiting for the outcome of a pending visa application. The Notice relevantly stated (TD, pp 116-119):
If your current visa is cancelled [,] you will become unlawful. Becoming unlawful will not affect your pending visa application, however, it may delay future applications such as applying for Australian Citizenship.
…
For these reasons, we strongly recommend that you consult a migration agent about your options before confirming that you wish to proceed with cancellation of your current visa.
…
If you wish to proceed with the cancellation, you will need to respond to the Notice of Intention to Consider Cancellation (the Notice), attach a copy of your passport and state that you fully understand the consequence of the cancellation and wish to waive the response timeframe in an email to [email address redacted].
If you do not wish to proceed with the cancellation, you will need to respond to the Notice clearly indicating that you do not want to proceed with the visa cancellation in an email to [email address redacted].
…
You must provide your response in writing within five (5) working days after you are taken to have received this letter…
A little less than an hour after this email was sent to the Applicant, he replied to the Department stating that he had read the Notice, that he fully understood the consequences of the cancellation, and that he wished to waive the response timeframe (TD, p 115). He attached to his response the Notice, a copy of his travel document and his current ‘immicard.’
On 19 May 2022, Mr Akram attended the Department. He arrived around 9.00 am. He states an officer took him to a meeting room. The Respondent submits that Mr Akram was notified at 12.59 pm that his SHEV was cancelled, and that the cancellation occurred at 9.34 am. The Applicant disagrees with this. He says it was around 15 minutes after he had been left in the meeting room that the officer came back into the room and informed him that his SHEV had been cancelled and he would receive the cancellation notice by email.
Mr Akram submits that the officer told him that, as his SHEV had been cancelled, he had become an unlawful non-citizen and, therefore, was in administrative detention and was not permitted to leave the meeting room until the Minister intervened and granted him a visa.
Mr Akram submits that, at around 12.30 pm, the officer returned to the meeting room and told him the Minister had intervened in his case and granted him a Former Resident (subclass 151) visa. The officer said the Applicant was no longer an unlawful non-citizen and he was free to go, and that the Department would email him the visa grant letter later that day.
The Applicant said he does not remember the time he left the Department offices, but believes it was around 12.35 pm, based on an Uber record of his travel which has him leaving the Lonsdale Street address at 12.39 pm (Exhibit A1).
It is common ground that, at 12.59 pm, Mr Akram received an email from the Department with the notice of decision and decision record for the cancellation of his SHEV, under s 116 of the Migration Act (TD, pp 127-129).
It is also common ground that, at 3.23 pm the Applicant received an email from the Department with the outcome of the ministerial intervention, notifying him he had been granted a Former Resident (subclass 151) visa on that day, 19 May 2022.
Citizenship applications
On 17 October 2022, Mr Akram lodged an application for Australian citizenship by conferral. At the time he requested the exercise of ministerial discretion under s 22(6) of the Act due to significant hardship and disadvantage in his case. He submits that at the time he lodged his application, he was not aware that the few hours he was an unlawful non-citizen on 19 May 2022 would affect the four-year general residence requirement.
On 1 February 2023, a delegate of the Respondent refused Mr Akram’s application for citizenship.
On 14 February 2023, Mr Akram lodged a fresh application for Australian citizenship by conferral. He also provided a statutory declaration and a submission setting out the administrative error he considered had been made by the Department in his case. He urged that the discretion be exercised under s 22(4A) of the Act to treat the short time he was an unlawful non-citizen as that he was present lawfully at that time.
On 1 February 2024, a delegate of the Minister refused the application. The delegate found that the Applicant satisfied ss 22(1)(a) and (c) of the Australian Citizenship Act 2007 (‘the Act’) but was not satisfied that he satisfied s 22(1)(b) of the Act.
Section 22(1)(a) of the Act requires that in order to satisfy the general residence requirement, a person applying for citizenship must have been present in Australia for the period of four years immediately before applying. The delegate found Mr Akram satisfied this requirement. On the evidence, the Tribunal agrees with this finding.
Section 22(1)(c) of the Act requires that the person must also have been present in Australia as a permanent resident for the period of 12 months immediately before applying for citizenship. The delegate found Mr Akram satisfied this requirement. On the evidence, the Tribunal agrees with this finding.
The delegate noted that the Applicant was ‘an unlawful non-citizen between 9.37 am to [sic] 2.59 pm on 19 May 2022’ and therefore made a finding that Mr Akram was present in Australia as an unlawful non-citizen for a period in the four years immediately prior to lodging his citizenship application.
The delegate further found that ministerial discretion under s 22(4A) was not available because Mr Akram’s SHEV was cancelled at his request, and that 22(5) of the Act did not apply because the Applicant satisfied s 22(1)(c) of the Act.
The delegate did not assess the requirements for citizenship set out in ss 21(2)(e) to (h) of the Act or the prohibitions at ss 24(4), 24(4A), 24(6) and 24(7) of the Act. As a result of this, if the Tribunal were to find in favour of the Applicant, the matter would be returned to the Respondent’s Department for consideration of the other mandatory requirements for Australian citizenship by conferral.
THE APPLICANT’S CONTENTIONS
Mr Akram submitted that the ministerial discretion in s 22(4A) of the Act should apply because he became an unlawful non-citizen for approximately three hours on 19 May 2022 because of an administrative error made by the Department. He submitted that the administrative error occurred in the ministerial intervention process which was adopted and implemented by the Department.
The Applicant said that the Notice he was given in relation to cancellation of his SHEV was ambiguous because it states that becoming unlawful ‘may delay’ future applications such as applying for Australian citizenship. Mr Akram said it should state that it ‘will delay’ future applications for citizenship. He further submitted that the Notice does not clearly state how long such a delay will be, and that this is an important factor for a person to fully understand the severity of the impact if the person applies for citizenship.
Mr Akram submitted that he has been a lawful non-citizen in Australia since March 2013 and a delay of four years in being granted citizenship disregards his residency of almost a decade. He stated that, had he known this, he would not have agreed to the cancellation of his SHEV, and would instead have pursued his request for ministerial intervention under s 46A(2) of the Migration Act.
Mr Akram noted that the Notice strongly recommends that he consult with a migration agent about his options, but countered that he was not given the opportunity to do that as an officer of the Department had specifically asked him on a telephone call to act quickly in response to instructions and respond to the Notice on the same day, in order for them to get the process underway ahead of a scheduled appointment for ministerial intervention on 19 May 2022.
He submitted that he told the officer that he did not have a migration agent or a lawyer and specifically asked about the consequence of voluntary cancellation of his SHEV. He submitted that the Department officer told him he would be granted a different visa, most likely a permanent visa.
Mr Akram said he understands the objective of the provisions in the Act relate to an individual who does not maintain their lawful status in Australia, for instance failing to lodge a valid visa application before their current visa expires or failing to depart Australia on the expiry of their visa. He submits that he became an unlawful non-citizen at the instigation of the Department for approximately three hours because of the ministerial intervention process so that the Minister could personally exercise his power under s 195A of the Migration Act.
Mr Akram submitted that it is an ‘unjust and unintended consequence’ of s 22(1)(b) of the Act if it applies to a period of approximately three hours that he was an unlawful non-citizen at the instigation of the Department.
The Applicant noted that citizenship would allow him to become a formal member of the Australian community and fully participate in Australian society. He submitted that despite the challenges relating to his migration background, he has worked hard in Australia and has become a chartered accountant, achieving a bachelor’s degree at the University of Adelaide, a graduate diploma from the professional body of chartered accountants, and a graduate diploma in tax from the University of Melbourne. He works as a senior associate in a major Australian and international accounting firm. Separately from his professional career, the Applicant is a board member of The Victorian Foundation for Survivors of Torture (Foundation House) and has participated in other community service activities.
The Applicant submitted that the Tribunal should find that the discretion in s 22(4A) of the Act should be exercised. That subsection states:
(4A) For the purposes 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.
In support of his contention that there had been administrative error, the Applicant cited a number of previous Tribunal decisions. In Re: Chaudhary and Minister for Immigration and Citizenship [2010] AATA 1006 (‘Chaudhary’), DP Handley said, at [32]:
In my view, as Deputy President Purvis said in Liu, the ordinary meaning of the words ‘administrative error’ in the context of s 22 of the Act should be interpreted as a reference to a mistake or error made by the administrative or executive arm of government which, in this instance, affected the lawfulness of the person’s residence in Australia. The extrinsic material, which the Department has identified and to which reference can be made for the purposes set out above, are the Instructions… I note the Instructions indicate the words should be interpreted broadly but the examples given and the tenor suggest, nevertheless, that the error should be interpreted as one made by the administrative or executive arm of government, although not necessarily by the Department itself.
In Re: Sever and Minister for Immigration and Citizenship [2011] AATA 449 (‘Sever’), SM Redfern said, at [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, suggest there will only be “administrative error” where there is an error or mistake resulting from procedures adopted or implemented by the Department or others.
Mr Akram also drew the Tribunal’s attention to the decision of DP Jarvis in Re: Rogers andMinister for Immigration and Citizenship [2011] AATA 592 (‘Rogers’), where he said at [39]:
…It is incumbent on the Department to provide clear advice to applicants, who in many cases will have language difficulties, and will generally be unaware of the complex requirements of the Migration Act and Regulations. If a Department’s communication is incomplete, internally inconsistent, inexact or inaccurate, this of itself might well constitute an administrative error within the meaning of s 22(4A)…
THE RESPONDENT’S CONTENTIONS

The Respondent submitted that it was not in dispute between the parties that the Applicant meets ss 22(1)(a) and (c) of the Act. Section 22(1)(a) provides that a person satisfies the general residence requirement if the person was present in Australia for the period of four years immediately before the person applied for citizenship by conferral. Section 22(1)(c) provides that the person must be present in Australia as a permanent resident for the period of 12 months immediately before the day the person made the application.
However, the Respondent contended that Mr Akram does not meet s 22(1)(b) of the Act. Section 22(1)(b) states:
(b) the person was not present in Australia as an unlawful non-citizen at any time during the 4 year period; …
The Respondent submits that s 22(4A) of the Act does not apply because the Applicant did not become an unlawful non-citizen because of an administrative error, and that the Notice he was sent explicitly made him aware that, for the Minister to intervene, he must be ‘unlawful’, so he was required to voluntarily consent to his SHEV being cancelled. The Respondent submitted that Mr Akram received a further warning that the cancellation of his SHEV would not affect his pending visa application, but may delay future applications such as applying for Australian citizenship.
The Respondent submitted that the Applicant’s unlawful status was not due to an administrative error, but due to his own choice, informed by the Department as to the legal consequences of that choice.
The Respondent submitted that the information provided to Mr Akram about the legal consequences of the cancellation of his SHEV was not incomplete or misleading and that he was on notice that he would become an unlawful non-citizen. The Respondent said the Tribunal should not accept the Applicant’s submissions that he was ‘rushed’ to respond to the Department’s correspondence and therefore did not have time to obtain legal advice.
ORAL EVIDENCE
Mr Akram agreed that he had read the Notice sent to him on 17 May 2022 (TD, p 114). When asked whether he understood the consequences of the cancellation of his SHEV, he responded that he read that it would not affect any pending visa application but may delay an application for Australian citizenship. Mr Akram said:
I was called by an officer of the Department on 17 May. The officer told me I needed to respond the same day because the ministerial intervention was set for 19 May. I said I had no migration agent or lawyer. She said, ‘you will be granted a different visa. As you have been given a SHEV it may be that you will be granted a permanent visa. You will come to the office with your visa. It will be cancelled, and you will leave the office with a new visa.’
Ms Lay asked the Applicant if he understood consenting to the cancellation of his SHEV meant he would become unlawful. He responded, “Yes. I was told I had to become unlawful for the Minister to exercise his personal power under s 195A.”
Ms Lay asked if Mr Akram thought about contacting a migration agent or doing his own research. He responded, “They said I must respond the same day. I didn’t do any further research. I understood there would be no serious consequences. I would go in with one visa and go out with another visa.”
In answer to a further question from the Respondent, Mr Akram agreed that he knew he would become an unlawful non-citizen.
In response to direct questions from the Tribunal that his appointment was at 9 am on 19 May 2022 but the Uber receipt he had submitted had him arriving at the Department’s Lonsdale Street offices at 9.20 am, Mr Akram responded, “I remember I arrived at the office on time, I do not think I was late.”
Mr Akram said he was taken to a meeting room by an officer. No one else was present. The officer told him his SHEV would be cancelled. Around 15 minutes later the officer returned and told him his SHEV had been cancelled and he was now in administrative detention. He said later the officer returned and told him a new visa had been issued and he was allowed to go, which he did at 12.30 pm. He said he then went to have lunch, because he had the day off work for the appointment, and it was a big day for him.
The Tribunal asked the Respondent if there was any dispute about the timing the Applicant had set out in his written submissions and reiterated in his oral evidence. Ms Lay said that there was not.
Closing submissions of Applicant
In his closing submissions, Mr Akram said that the Notice sent to him (TD, p 116) was a generic notice with template paragraphs. He said if it had been explained to him the effect on a future application for citizenship, he would have declined the offer for ministerial intervention, remained on his SHEV and pursued intervention under s 46A of the Migration Act.
Mr Akram said he understood English and had lived, at that time, in Australia for 10 years. He was familiar with obligations of visa holders, having held several classes of visa in his time in Australia and having been before the Refugee Review Tribunal and the Administrative Appeals Tribunal on three occasions.
Mr Akram submitted that the objective of s 22(1)(b) of the Act was not for people in his category, who became unlawful at the instigation of the Department. He said the provision related to persons who had allowed their visas to lapse, or had been knowingly in Australia without a valid visa. He said he was not in either of those two categories. He submitted that it was an unjust and unintended consequence for him to now have to wait another four years before he could apply for Australian citizenship.
Closing submissions of Respondent
Ms Lay submitted that while she understood the Applicant’s submissions that he became unlawful at the instigation of the Department, the Minister’s power to intervene was non-compellable and it was open for Mr Akram to have declined. She submitted that there was no administrative error in the Notice or other correspondence sent to the Applicant and that the Applicant was told on two occasions in writing that he would become an unlawful non-citizen as part of the intervention process.
CONSIDERATION
What happened on 17 May 2022?
The Tribunal is satisfied that on 17 May 2022 an internal email (ST, p 1) recorded that the Minister’s private office had indicated that it would like the Applicant included in the ‘s 195A MI [i.e. ministerial intervention] signing scheduled on 19 May 2022‘. The Tribunal interprets this to mean that a submission was being prepared for the Minister’s consideration on 19 May for him to intervene in relation to the status of certain non-citizens with a view to them being granted fresh visas. Ms Lay confirmed this understanding at the hearing.
It is important to note that s 195A of the Migration Act is headed ‘Minister may grant detainee visa (whether or not on application)’ and s 195A(1) states: ‘This section applies to a person who is in detention under s 189.’
A person who is an unlawful non-citizen must be detained under s 189 of the Migration Act. The Migration Act provides at s 14 that a non-citizen in the migration zone who is not a lawful non-citizen is an unlawful non-citizen. A lawful non-citizen is defined in s 13 as a non-citizen in the migration zone who holds a visa that is in effect.
While this is a bit convoluted, what it means in plain language is that every person in Australia who is not a citizen (excepting only the Sovereign) must hold a valid visa, otherwise the person is in Australia unlawfully and liable to be detained.
For the Minister to intervene under s 195A to grant Mr Akram a permanent visa (in this case a Former Resident visa), it was a precondition that he had to be in detention. As a consequence, he had to surrender the SHEV he previously held.
There are three records, one an email and the others notes of telephone conversations between the Applicant and an officer of the Respondent’s Department. The first is recorded at 12.57 am on 17 May 2022. The Department officer informed another part of the Department that the Minister’s private office had indicated they wanted Mr Akram’s name added to a submission to the Minister for intervention scheduled for 19 May 2022. The officer relevantly stated (ST, p 1):
Mr AKRAM confirmed to me a few minutes ago that he now lives in Melbourne…He is holding a valid SHEV (XE790) with expiry date 13/04/2026. Note that prior to today, MO has liaised directly with Mr AKRAM informing him to be available to attend his local Home Affairs officer this Thursday 19 May. In my brief call to him this morning (to confirm state he resides in), I mentioned that Stat Res officer will touch base further to provide him details of required process, location to go to etc. for the s 195A signing. Appreciate if your team can please assist with securing the client’s attendance for the required administrative detention and assist explain [sic] the process for the quired voluntary cancellation of his SHEV.
At ST p 4 are file notes of what appear to be two further telephone conversations with the Applicant on 19 May 2022. The first was at 1.30 pm and states:
Called client (Mr AKRAM Muhammed) on [redacted], No need for interpreter. Advised/explained that the Minister has decided to intervene in your case and grant you a visa. Required to attend Melb office (2 Lonsdale St) on Thursday 19/05/2022 at 9am. Client stated will present on the day. Explained QFLOW and email for request for Voluntary Cancellation and Consent to communicate electronically…
The time of the second call is not recorded, but the file note states:
Phone call to Mr Akram re changes to circumstances.
Mr Akram provided the following updates:
-    He relocated to Victoria in December 2021 after securing a scholarship from the University of Melbourne to study a Masters in Taxation.
-    He became a qualified Chartered Accountant in March 2022.
-    Since 19 April 2022, he has been employed by [redacted] as a full-time senior analyst.
-    He claims to be single.
I am satisfied on the evidence of the emails, telephone call notes and Notice sent to Mr Akram that he knew the process that was being followed. I am satisfied that he was given a Notice by email on 17 May 2022 which set out what was to occur and that it was open to him to decline to voluntarily consent to the cancellation of his visa. He did consent, quite rationally, on the basis of the advice that he says he received from a Department officer that (a) the Minister was intervening in his case and (b) that it would be likely he would be issued with a permanent visa. That is what in fact occurred.
I am satisfied that the Applicant knew that there were consequences to him consenting to the cancellation of his visa. He knew that he would be in administrative detention for a short period, between the time of the cancellation of the SHEV he held, and the grant of the new visa. The precise timing that the delegate has described in his decision record in regard to the cancellation of the SHEV and the grant of the fresh visa is incorrect, but nothing particularly turns on that. What is relevant is that there was a temporal period between the cancellation of one visa and the grant of another one. The Tribunal is satisfied that there was a period of around 160 minutes from when Mr Akram’s SHEV was cancelled to when the Minister himself had granted the fresh visa.
I am further satisfied that, in particular, the Applicant was specifically on notice that there may be consequences for him in terms of Australian citizenship if he consented to the cancellation of his visa. The Applicant takes issue about the word the word ‘may’ and said this was an error because it ‘would’ have a consequence. I do not consider this was an error. As I remarked in the hearing, the word ‘may’ is properly used in the Notice in this sentence because it cannot be speculated that a person would apply for Australian citizenship, and in particular it cannot be speculated that the person would apply within the next four-year period. Such decisions are personal ones for an eligible non-citizen on the citizenship pathway. The Notice correctly alerted the recipient to a potential effect on a future application for citizenship.
In regard to Mr Akram’s submission that the Notice sent to him on 17 May 2022 (TD, pp 112-119) was ‘generic’, I do not accept that. I agree with him that some of the paragraphs were template paragraphs, but the Notice itself is sufficiently tailored to the Applicant’s personal circumstances not to be labelled ‘generic.’ It refers to the SHEV and when it was granted, and that he had provided a written request asking that the SHEV be cancelled. There is a highlighted and emboldened paragraph on page 2 of the letter (TD, p 117) which states:
What you can do
If you wish to proceed with the cancellation, you will need to respond to the Notice of Intention to Consider Cancellation (the Notice), attach a copy of your passport and state that you fully understand the consequence of the cancellation and wish to waive the response timeframe in an email…
I have some sympathy with the Applicant’s contention that he felt ‘rushed’ and did not have time to consult a migration agent. It is clear on the papers that Mr Akram had been told on 17 May 2022 that the Minister was considering intervening in his case two days later, on 19 May 2022. He knew that from telephone calls and from being sent the Notice and the covering letter on 17 May 2022. Although there is no evidence from the Respondent of this conversation, I accept the Applicant’s evidence that he was told he had to respond to the Department that day, in order for the intervention paperwork (with his name included) to be put before the Minister on 19 May 2022.
Had he wanted to consult a migration agent or a lawyer, however, Mr Akram could have told the Department he needed to do so (which would mean his name would not have gone to the Minister in the submission). It was his own decision to email the Department in reply within around an hour agreeing to the Notice consenting to cancellation of his SHEV.
There is a tension between the Respondent’s submissions, on the one hand, that it was open to the Applicant to consult with a migration agent or a lawyer and, on the other hand, him being told by a Department officer to act within the day, if he wanted his name included in the list of persons going before the Minister for intervention. It is understandable that, not wanting to miss this opportunity for a permanent visa, Mr Akram acted promptly.
Mr Akram cited three previous Tribunal decisions which considered the administrative error provisions in s 22(4A) of the Act. In Chaudhary there had been an error by a Department officer in processing a visa application fee which had serious consequences, and the Tribunal found the administrative error discretion should be exercised in favour of the applicant. In Sever, the applicant contended that he did not know he had to apply for a bridging visa and should have been told by the Department or by his lawyers. The Tribunal in that case said that if there had been incorrect information provided to Mr Sever about the need for a visa and he had acted, or not acted, on the basis of such incorrect information, he may have some case, but there was no such evidence. In Rogers, the Tribunal made a factual finding about whether Miss Rogers’ bridging visa was still in effect, and considered the Department’s advice somewhat obscure for a person who was not adept in English, but she did not satisfy the general residence requirement in any event when she applied for citizenship.
What happened on 19 May 2022?
Mr Akram attended the Department in Lonsdale Street, Melbourne, according to the appointment that had been arranged. The Tribunal finds that the SHEV visa was cancelled at 9.34 am by a delegate of the Minister (TD, p 133) while Mr Akram was waiting in a meeting room at the Department’s Melbourne offices. The cancellation was at his request. He thereby entered into administrative detention.
At some time in the approximately 160 minutes thereafter, the Minister, acting personally, decided to exercise his public interest power under s 195A of the Migration Act to grant the Applicant, as a detainee, a Former Resident (subclass 151) visa. Ms Lay said she did not dispute the timings set out by the Applicant in his submission. She said she had no evidence of the precise time the new visa was granted to the Applicant.
The best that the Tribunal can glean is that the grant of the visa was around 12.15 pm on 19 May 2022 and communicated by the Minister’s office to the Melbourne office of the Department immediately thereafter. I am satisfied that decision was notified to Mr Akram by an officer around 12.30 pm at the Melbourne offices of the Minister’s Department and he was allowed to go, i.e. released from administrative detention.
The timing the Tribunal has found for the grant of the visa is based on the Applicant’s Uber receipt (Exhibit A1) which satisfies the Tribunal that the Applicant had been released from administrative detention at 12.30 pm and departed the Department at 12.39 pm. He could not have been released from administrative detention by an officer if the officer knew or reasonably suspected Mr Akram did not have a valid visa (see the obligation on officers in s 189(1) of the Migration Act).
Formal advice of the grant of the Former Resident visa was emailed to the Applicant at 3.23 pm that same afternoon (TD, pp 120-124).
Summation
For completeness, it was not asserted by either party that the special residence requirements found in s 22A of the Act or the special residence requirement for persons engaged in particular kinds of work requiring regular travel outside Australia, found in s 22B of the Act, are relevant in the Applicant’s case. In addition, the other provisions which may affect assessment of general residence, such as confinement in prison or a psychiatric institution (s 22(5A)); where the person would suffer significant hardship or disadvantage (s 22(6)); where the person is a spouse or de facto partner or a surviving spouse or de facto partner (ss 22(9) and (10)) or where the person is in an interdependent relationship (s 22(11)) are not relevant in Mr Akram’s circumstances.
The Tribunal has sympathy with the Applicant in terms of the harshness of the effect of the decision under review. He was ‘unlawful’ for a period of only 160 minutes in the four-year period before applying for Australian citizenship. That is 160 minutes in a total time lawfully in Australia, then, of around 10 years.
Was there administrative error in this case?
Mr Akram says that the reason he was unlawful was at the instigation of the Department. That is not quite correct. It is true that the Department had instigated the process for him to voluntarily surrender his SHEV, but that was in response to the Applicant’s own representations to the Minister, which had borne fruit. The reason he became an unlawful non-citizen was because he had requested his SHEV be cancelled, albeit in the knowledge that the Minister was about to intervene to grant him a new visa, and which he rightly understood to be part of the process.
The Tribunal does not accept that the correspondence the Applicant received from the Department was ‘incomplete and inexact,’ to use his contention. The Tribunal concludes that he is an intelligent person with a very good grasp of English, as is clear from his comprehensive submissions before the hearing. Unlike the applicant in Rogers, Mr Akram is not someone who finds English a challenge, but I do accept he could not be expected to have an intricate knowledge of the Migration Act and regulations.
The Tribunal finds that the Notice sent to Mr Akram about consenting to the cancellation of his visa was clear, and did flag that surrendering the visa might have a consequence for a future citizenship application. The Tribunal considers that the Applicant’s response was with his ‘eyes wide open.’ He had been properly alerted to the consequences of giving up his visa, that he would be in detention (albeit administratively) for a short period, and then he would be granted some category of visa, likely to be a permanent one.

The Tribunal considered whether the cancellation of the SHEV and the grant of the Former Resident (subclass 151) visa could be seen to have been done uno actu, i.e. in a single action, in the same way that, for instance, the act of Royal Assent transforms a Bill into an Act of Parliament. However, even if the Minister had acted more swiftly than the 160 minutes that the Tribunal has found elapsed in this case, there had to be, in law, a temporal break, because the Minister could not intervene under s 195A unless Mr Akram was a detainee, and he could not be in detention if he had a valid visa.
The Applicant submits that there was an administrative error by the Minister or the Department because he had requested ministerial intervention under s 46A(2) of the Migration Act and, had the Minister used that power, there would not have been a period when he was an unlawful non-citizen.
The Tribunal rejects this argument. Simply because the Minister decided to use one power in a beneficial way in relation to the migration status of the Applicant and not a different power, this choice cannot be categorised as an ‘administrative error.’ Both of the powers under s 46A and s 195A are within the ministerial discretion of the Minister of the day, and which power the Minister chose to use is a matter entirely for him or her. While Mr Akram might have had a preference, there was no ‘error’ in the way the Minister intervened. In fact, the intervention was objectively to the benefit of Mr Akram. There being no evidence of administrative error, the Tribunal finds that the discretion in s 22(4A) of the Act is not available to the decision-maker.
Is there any other discretion that could be exercised?
The Tribunal finds there is no other discretion in the Act that would help the Applicant. Section 22(1)(b) is plain: to satisfy the general residence requirement, a person cannot have been present in Australia (in this sense meaning geographically Australia and its Territories) as an unlawful non-citizen at any time during the four-year period immediately before the day the person applied for citizenship. My view on the strict nature of this provision is reinforced by the wording of the Explanatory Memorandum for the Australian Citizenship Bill 2007 which relevantly states:
If the person has been an unlawful non-citizen at any time, that person will need to spend 4 years in Australia since last ceasing to be an unlawful non-citizen before meeting the residence requirement for citizenship.
Section 22(1)(b) imposes, therefore, a rigid and somewhat unsparing requirement. The disappointing consequence for Mr Akram is that the clock for him to satisfy the general residence requirement was reset on 19 May 2022, when he ceased the very short period during which he was in detention in Australia as an unlawful non-citizen. The four-year period commenced on 20 May 2022.
The Tribunal notes the impressive work history of the Applicant, his excellent academic record from the University of Adelaide, a very favourable reference from a director of a major accounting firm he then worked for in support of the original grant of the SHEV, his subsequent postgraduate qualifications, and his altruistic work in the community for survivors of torture. Mr Akram is clearly a positive contributor to Australian society. His achievements are only more impressive given the perilous circumstances in which he arrived in Australia as a refugee seeking protection.
The Tribunal understands that Mr Akram’s desire is to complete his integration into this country by being conferred Australian citizenship. Even though the officer halted assessment on finding the general residence requirement was not met, there is nothing before the Tribunal that would lead to a conclusion that he would not satisfy the other mandatory requirements, at this stage, for citizenship.
The Tribunal notes that in his opening submission, Mr Akram said his career goal was to work for a government agency such as the Department of the Treasury or the Australian Taxation Office. Although he did not specifically say this, the Tribunal inferred that this goal would be more achievable if he were an Australian citizen. The Tribunal understands that point.
The Tribunal considers that it is unfortunate in cases such as this that there is no distinction between ‘administrative detention’ and ‘detention.’ Detention is, in the general run of things, a sanction against a non-citizen who has no visa and who is thereby in Australia unlawfully. The process used to facilitate ministerial intervention requires that the person for whom the Minister is beneficially intervening must be a ‘detainee,’ but it is a blunt tool where the person is someone like Mr Akram, who on the evidence has been punctilious about ensuring he abides by the migration laws of this country. A legislative change to the Act would be necessary to not count a short period in administrative detention as a period where a person is an unlawful non-citizen.
However, the Tribunal cannot find that there was an error that would activate the discretion in s 22(4A) of the Act, nor any other power that might be available to provide relief to the Applicant. This is an insurmountable barrier to him satisfying the general residence requirement at the time he made his citizenship application, and the Minister is precluded from granting citizenship by conferral to a person who cannot (the other specified exceptions not being relevant in Mr Akram’s case).
Accordingly, the decision brought to the Tribunal for review will be affirmed. This decision will have no effect on Mr Akram’s current status as an Australian permanent resident, nor his ability to apply for citizenship after 20 May 2026.
DECISION
Pursuant to s 43(1)(a) of the AAT Act, the Tribunal affirms the decision under review.

I certify that the preceding 93 (ninety-three) paragraphs are a true copy of the reasons for the decision herein of Senior Member D. J. Morris

...................................[sgn].....................................
Associate
Dated: 22 July 2024

Date(s) of hearing: 18 July

Applicant: Self-Represented

Counsel for the Respondent: Ms Felicidade Lay of Minter Ellison

Solicitors for the Respondent: Minter Ellison
ANNEXURE TO REASONS
Schedule of exhibits
Section 37 (TD) documents Exhibit R1
Section 38AA (ST) documents Exhibit R2
Appendices to Applicant’s Statement of Facts, Issues,
and Contentions  Exhibit A1
Submission dated 2 April 2024  Exhibit A2
Supplementary submission dated 23 May 2024  Exhibit A3

Date(s) of hearing:	18 July
Applicant:	Self-Represented
Counsel for the Respondent:	Ms Felicidade Lay of Minter Ellison
Solicitors for the Respondent:	Minter Ellison