Alif Namaan; Ali Namaan; Kalim Namaan; and Rania El Kurdi and Minister for Immigration and Border Protection
[2014] AATA 834
•5 November 2014
[2014] AATA 834
Division GENERAL ADMINISTRATIVE DIVISION File Number(s)
2014/0567; 2014/0569; 2014/0570; 2014/0571
Re
Alif Namaan; Ali Namaan; Kalim Namaan; and Rania El Kurdi
APPLICANT
And
Minister for Immigration and Border Protection
RESPONDENT
DECISION
Tribunal Ms N Isenberg, Senior Member
Date 5 November 2014 Place Sydney The decisions under review are affirmed.
..................[SGD]......................................................
Ms N Isenberg, Senior Member
CATCHWORDS
CITIZENSHIP — Application for Australian Citizenship — General Residence Requirements not Satisfied — Whether the Applicants were present in Australia as unlawful non-citizens due to an administrative error — Whether the discretion to treat a period as one in which the Applicants were not present in Australia as an unlawful non-citizens should be exercised — Children’s applications for citizenship — Decisions affirmed
LEGISLATION
Australian Citizenship Act 2007 – ss 21(2)(c); 22(1)(b);
Migration Act 1958 – ss 13; 14; 195A
CASES
Drake v Minister for Immigration and Ethnic Affairs (1979) 2 ALD 60
Minister for Immigration, Local Government and Ethnic Affairs v Roberts (1993) 41 FCR 82
Re Dainty and Minister for Immigration and Ethic Affairs (1987) 12 ALD 416Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634
SECONDARY MATERIALS
Australian Citizenship Instructions, 1 July 2013
REASONS FOR DECISION
Ms N Isenberg, Senior Member
5 November 2014
BACKGROUND
On 17 December 2013 Mr Afif Naaman, a Lebanese citizen, lodged an application for Australian citizenship for himself, and on behalf of his two children, Karim and Ali. His wife, Ms El Kurdi, also lodged an application on the same day. On 24 January 2014, a delegate of the Department of Immigration and Border Protection (the Department) refused the applications on the basis that the applicants did not meet the general residence requirement at s.22(1)(b) of the Australian Citizenship Act 2007 (the Act). The applicants seek review of those decisions.
It was agreed that the applications of the children were dependent upon their parents’ applications, so in this decision the term ‘the applicants’ refers to Mr Naaman and Ms El Kurdi, unless otherwise addressed. ‘The primary applicant’ refers to Mr Naaman.
RELEVANT LEGISLATION AND POLICY
A person is eligible to become an Australian citizen if the Minister, or the Tribunal on review, is satisfied that the person satisfies the general residence requirement: s.21(2)(c) of the Act.
Section 22 sets out the general residence requirement:
1Subject to this section, for the purposes of section 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,
Section 22 of the Act provides discretion to the Minister, and Tribunal on review, to waive the general residence requirements in certain circumstances.
Sections 13 and 14 of the Migration Act 1958 provide the following relevant definitions:
Lawful non-citizens: A non-citizen in the migration zone who holds a visa that is in effect is a lawful non-citizen...
Unlawful non-citizens: A non-citizen in the migration zone who is not a lawful non-citizen is an unlawful non-citizen...
The Australian Citizenship Instructions (ACIs) are issued by the Minister to provide guidance on policy in relation to the interpretation of, and the exercise of powers under, the Act and the Regulations.
Whilst I am not bound to apply policy guidelines (see Drake v Minister for Immigration and Ethnic Affairs (1979) 46 FLR 409) I may do so and, indeed, the Tribunal will usually apply the guidelines unless there are cogent reasons in a particular case for not doing so: see Re Drake and Minister for Immigration and Ethnic Affairs(No 2) (1979) 2 ALD 634 at 639-645; Re Dainty and Minister for Immigration and Ethic Affairs (1987) 6 AAR 259 at 267; and Minister for Immigration, Local Government and Ethnic Affairs v Roberts (1993) 41 FCR 82 at 86.
ISSUES
·Do the applicants meet the general residence requirement?
·If not, was that due to an administrative error?
·Should the discretion be exercised in the applicant’s favour?
CONSIDERATION
Do the applicants meet the general residence requirement?
The applicants are citizens of Lebanon and presently hold permanent resident visas valid until 19 November 2017.
To meet the general residence requirement set out in s.22(1)(b) of the Act the applicants must not have been 'present in Australia as … unlawful non-citizens at any time' during the 4 years preceding their applications for citizenship, that is, at any time between 17 December 2009 to 17 December 2013.
The respondent contended that, according to its records, during the following periods the applicants did not hold visas and should therefore be found to have been present in Australia as unlawful non-citizens during those periods:
·21 March 2010 to 8 April 2010
·11 March 2011 to 1 April 2011
·19 November 2012
There was no dispute that the applicants did not hold visas during those periods. As such they were unlawful non-citizens.
Consequently, they do not meet the general residence requirement.
As the applicants do not meet the general residence requirement, did their presence in Australia as unlawful non-citizens occur due to an administrative error, and if so, should the discretion be exercised in the applicants’ favour?
Section 22(4A) of the Act provides:
Ministerial discretion-administrative error
(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 not an unlawful non-citizen during that period.
Each of the periods in which the applicants were unlawful non-citizens needs to be considered. If there was no administrative error in respect of any of the periods, or if the discretion should not be exercised, then the applicants must fail in their application for review.
21 March 2010 to 8 April 2010
Mr Naaman came to Australia on a 457 visa which was granted on 20 March 2006. During the visa period he attempted, without success, to obtain sponsorship.
Two days before his visa was to expire – on 18 March 2010 – he consulted a person who he understood was a migration agent. She advised him to apply for a protection visa and said that would secure him a bridging visa until his protection visa application was determined. She told him that she would send in his application the following day. No application was received by the Department until 7 April 2010. The primary applicant said that the ‘migration agent’ is now being pursued by the Australian Federal Police.
There had been no previous explanation for the primary applicant’s failure to apply for a new visa after the 457 visa ceased on 20 March 2010. I accept that Mr Naaman may have made an application for a protection visa on advice from a person who had claimed to be a migration agent. That application was made on his behalf after the expiry of his 457 visa.
Notwithstanding the incompetence of the migration agent, it was incumbent upon the applicant to manage his own visa status, and to monitor his compliance with conditions and to review his status well in advance of the expiry of the visa. I did not understand the primary applicant to suggest that he had made plans to leave the country on the expiry of the 457 visa which was only 2 days after he first consulted the ‘migration agent’.
The primary applicant did not allege Departmental administrative error in relation to this period, and I find there was no administrative error in respect of that period.
11 March 2011 to 1 April 2011
In relation to the period 11 March 2011 to 1 April 2011, there was no previous explanation, excuse or claim of administrative error on the part of the Department to excuse the failure to apply for a new visa before the visa that ceased on 10 March 2011.
The primary applicant said that the Refugee Review Tribunal heard his application for a protection visa in February 2011 and his application was refused in March 2011. He said that he was then sent a letter which called him and his family in to attend the Department and he then applied for another bridging visa.
19 November 2012
The respondent’s records demonstrate that the applicants’ visas were cancelled on 19 November 2012, and that they were granted new visas on the same day. Prior to that time the applicants had been on a series of bridging visas, following the failure of the primary applicant’s protection visa application.
Mr Naaman said that he received a call ‘from the Department’ and was told to attend with his family and to bring their passports. He said they were taken to an interview room and told that they were being offered permanent residence, and that, as it was not possible to hold two visas simultaneously, they had to ‘apply to cancel’ their bridging visas. He said he asked if it would ‘affect things later’ and was told that it would not. As a result, the applicants requested that their bridging visas be cancelled on that date because their clear preference was to obtain permanent residence. Otherwise they would have to leave the country at the expiry of their bridging visas. They were taken into another area, which was ‘technically detention’.
The Respondent’s solicitor explained that the applicants had requested that their visas be cancelled, to allow the Minister to exercise the discretion under s.195A of the Migration Act 1958 and to grant a different visa. The discretion in s.195A can only be exercised when the person is not the holder of a valid visa and is in detention. In short, had they not signed the cancellation request, they could not be considered for permanent residence.
The applicant submitted that he ‘had no choice’ but to accept the offer of permanent residence and to some extent, I accept this to be the case. The alternative to not seeking cancellation of the bridging visa (and thereby even momentarily becoming an unlawful non-citizen) was to leave the country when the bridging visas expired.
As to the claimed representation that he would not be adversely affected by signing the request for cancellation, from Mr Naaman’s contention that he ‘had no choice’, I do not consider his decision was affected by what he was told.
In any event, the discretion in s.22(4A) of the Act can only apply to circumstances where, because of an administrative error, the person was present in Australia as an unlawful non-citizen during a period. Consequently, even if such a representation were made, it did not result in the applicant not being present in Australia as an unlawful non-citizen.
I find there was no administrative error in respect of the period - albeit brief - on 19 November 2012, when the applicants were unlawful non-citizens.
Therefore the discretion under s.22(4A) of the Act does not apply to any of the 3 periods referred to above. Section 22 identifies other circumstances where the Minister, and Tribunal on review, has a discretion in relation to the general residence requirement. None of those circumstances are applicable here.
In particular I note that s.22(6) contains a discretion if a person will suffer significant hardship or disadvantage if the period were not treated as one during which the person was present in Australia as a permanent resident. The applicant gave evidence that he had been refused at least one job because he is not an Australian citizen, and any jobs in the ADF are closed to him because he is not an Australian citizen, notwithstanding his skills in metallurgy. He is also unable to vote. I accept that he may feel disadvantaged. However, the discretion in s.22(6) is not available where a person has been an unlawful non-citizen.
The children
The ACIs set out guidelines in respect of children’s applications for citizenship:
5.12.5 Children under 16 applying individually in their own right
Children under 16 applying individually in their own right would usually not be approved under s24 unless they are permanent residents at the time of application and decision and also meet the following policy guidelines:
are under 16 when applying and living with a responsible parent who is an Australian citizen and who consents to the application or
are usually resident in Australia with a permanent resident responsible parent who consents to the application, and that responsible parent would meet the residence requirement but has decided not to apply for Australian citizenship because they would lose the citizenship of another country or
are under 16 when applying, living with a responsible parent who is not an Australian citizen and consents to the application, and the child would otherwise suffer significant hardship or disadvantage - see section 5.18 Ministerial discretion - significant hardship or disadvantage (s22(6))
...
However, having regard to my decision in relation to the parents in that they do not meet the Australian residence requirement, the children do not meet the guidelines under the ACIs for grant of citizenship to applicants who are under 16 and in responsible care.
The decisions under review are affirmed.
I certify that the preceding 34 (thirty -four) paragraphs are a true copy of the reasons for the decision herein of Ms N Isenberg, Senior Member ......................[SGD]..................................................
Associate
Dated 5 November 2014
Date(s) of hearing 17 October 2014 Advocate for the Applicant Australian Immigration Solutions Solicitors for the Respondent Australian Government Solicitor
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