Angus Macdonald and Minister for Immigration and Citizenship
[2012] AATA 733
•24 October 2012
Administrative Appeals Tribunal
ADMINISTRATIVE APPEALS TRIBUNAL )
) No: 2012/1277
General Administrative Division )Re: Angus Macdonald
Applicant
And: Minister for Immigration and Citizenship
RespondentDIRECTION
TRIBUNAL: Deputy President RP Handley
DATE: 15 January 2013
PLACE: Sydney
The Tribunal directs the Registrar, pursuant to subsection 43AA(1) of the Administrative Appeals Tribunal Act 1975, to alter the text of the decision in this application as follows:
- The time period in paragraph 8 should read four years, not 12 months.
.......[sgd]...................................
RP Handley, Deputy President
[2012] AATA 733
Division GENERAL ADMINISTRATIVE DIVISION File Number
2012/1277
Re
Angus Macdonald
APPLICANT
And
Minister for Immigration and Citizenship
RESPONDENT
Decision
Tribunal Deputy President R P Handley
Date 24 October 2012 Place Sydney Decision Summary
The decision under review is set aside and the matter remitted to the Respondent to assess the remaining eligibility criteria for citizenship with the direction that Mr Macdonald satisfies the general residence requirement in s 22(1) of the Australian Citizenship Act 2007.
..........[sgd]...................................
Deputy President R P Handley
CATCHWORDS
CITIZENSHIP – Application for Australian citizenship by conferral – Application refused on grounds Applicant does not meet residence requirement under Australian Citizenship Act 2007 (Cth) – Applicant arrived in Australia on an assisted migrant visa in 1969 – Applicant told on return flight from United Kingdom in 2009 that he did not have a valid visa – Visa issued to Applicant on payment of fee – visa issued by airline official only valid for three months – No documentation provided to the Applicant at time of being issued his visa as to its duration – No entry made in Applicant’s passport at time of issue of his visa – Applicant an unlawful citizen due to misapprehension of the duration of the visa he was issued – Whether administrative error occurred – Ministerial discretion under s 22(4A) of Australian Citizenship Act – Whether discretion should be exercised – Decision under review set aside and remitted to Respondent
LEGISLATION
Australian Citizenship Act 2007 (Cth)
CASES
Chaudhary and Minister for Immigration and Citizenship (2010) 119 ALD 632
Melhem and Minister for Immigration and Citizenship [2010] AATA 993
Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634
Sever and Minister for Immigration and Citizenship [2011] AATA 449
SECONDARY MATERIALS
Australian Citizenship Instructions
REASONS FOR DECISION
Deputy President R P Handley
Mr Macdonald has applied for a review of a decision of a delegate of the Minister for Immigration and Citizenship (the Minister) to refuse his application for Australian citizenship by conferral on the ground that Mr Macdonald was present in Australia as an unlawful non-citizen from 19 December 2009 to 11 February 2011. The issue for the Tribunal is whether there is a discretion to disregard this period and, if so, whether the discretion should be exercised.
BACKGROUND
Mr Macdonald was born in Scotland in 1943 and is aged 68. He is a British citizen. He first arrived in Australia in late 1969 as an assisted migrant, and, since then, has only departed Australia for occasional overseas holidays.
On 10 May 2004, Mr Macdonald was granted a Subclass 155 (Five Year Resident Return) (Class BB) permanent visa. Its visa label states: “Granted 10MAY04. Multiple Travel. Must Not Arrive After 10MAY09 (sic). Holder(s) Permitted to Remain in Australia Indefinitely” (original capitalisation).
On 26 August 2009, Mr Macdonald departed Australia for a holiday in the United Kingdom. On checking in for his return flight to Australia on 16 September 2009, Mr Macdonald was told he could not board his flight as he did not have a valid visa. He asked what he could do, and was directed to another counter where an application for an electronic visa was made on his behalf, he paid the required fee, and he was granted a visa. He said he did not know what type of visa it was, and was more worried about catching the plane. He believed an administrative error had caused the problem.
On 16 September 2009, Mr Macdonald was, in fact, granted a Subclass 976 (Electronic Travel Authority (Visitor)) (Class UD) temporary visa, rather than a new Subclass 155 visa. The duration of this Subclass 976 visa was 3 months. It came into effect on his arrival into Australia on 18 September 2009 and expired on 18 December 2009.
Prior to Mr Macdonald travelling overseas again in 2011, he applied for a visa to enable him to return to Australia and was granted a new Subclass 155 visa on 11 February 2011. However, from 19 December 2009 until 11 February 2011, Mr Macdonald was present in Australia as an unlawful non-citizen.
On 7 March 2012, Mr Macdonald made a valid application for Australian citizenship by conferral to the Minister.
By letter dated 22 March 2012, a delegate of the Minister notified Mr Macdonald that his application for Australian citizenship had been refused because he did not meet the general residence requirement under s 22 of the Australian Citizenship Act 2007 (the Act) as a result of his being an unlawful non-citizen within four years of the date of his application.
RELEVANT LAW AND POLICY
Section 21(1) of the Act provides that a person may make an application to the Minister to become an Australian citizen. Section 24(1) states that if a person makes such an application, “the Minister must, by writing, approve or refuse to approve the person becoming an Australian citizen”. Section 21(4) states the eligibility criteria for persons aged 60 and over which applies in Mr McDonald’s case:
Person aged 60 or over or has hearing, speech or sight impairment
(4) A person is eligible to become an Australian citizen if the Minister is satisfied that the person:
(a) is:
(i) aged 60 or over at the time the person made the application; or
(ii) aged 18 or over at the time the person made the application and is suffering from a permanent loss or substantial impairment of hearing, speech or sigh at that time; 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) understands the nature of the application at the time the person made the application; and
(d) 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
(e) 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
(f) is of good character at the time of the Minister’s decision on the application.
The ‘general residence requirement’ is set out in s 22(1):
(1) Subject 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.
However, s 22(4A) 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.
Prior to the hearing, the Minister conceded that at the time Mr Macdonald made his citizenship application, he satisfied subsections 22(1)(a) and (c) of the Act. However, the Minister contends that Mr Macdonald does not satisfy s 22(1)(b) of the Act because he was present in Australia as an unlawful non-citizen between 19 December 2009 and 11 February 2011.
The Australian Government has developed policy in the form of the Australian Citizenship Instructions (the Instructions) to provide guidance to decision makers. The introduction to the Instructions states that their role is:
… to support the Australian Citizenship Act 2007. The instructions provide guidance on policy in relation to the interpretation of, and the exercise of powers under, the Act and the Regulations. Decision makers should be mindful that policy must not be applied inflexibly. Policy cannot constrain the exercise of delegated powers under the Act.
Decision-makers should generally apply policy such as the Instructions unless the policy is unlawful or its application produces an unjust result in the circumstances of a particular case: Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634 (Drake).
The Instructions provide relevantly:
The discretion can only be exercised on condition that the legal status is absent ‘... because of an administrative error’. The condition can be divided into 2 parts, namely:
·there must be an administrative error (in other words, an error of a particular kind) and
·the error must be the reason why the person lacks the necessary legal status (in other words, the error is the cause).
The concept of ‘administrative error’ embraces a range of administrative actions. In broad terms it will extend to administrative mistakes and circumstances in which incorrect information is provided. While each case will need to be assessed on its own merits, specific examples include the following:
othe applicant may have been granted a permanent visa but the decision maker accidentally recorded the grant of a temporary visa in ICSE
othe applicant was advised by the Department that they were a lawful non-citizen when in fact they were unlawful
othe applicant had been entitled to a permanent visa but made an application for a temporary visa as a result of incorrect advice from an officer of the Department.
A delay in processing an application does not constitute an administrative error in itself. Where an adverse decision on an application is subject to merits or administrative review and the decision is subsequently overturned, this is still considered within the normal parameters of an application process and does not constitute an administrative error.
In order for this discretion to be applied, the onus is on the applicant to provide evidence that an administrative error has indeed occurred. All reasonable efforts should be made by the decision maker to verify the applicant's claims. The Department may on its own initiative take action where the Department can identify a clear case of administrative error and apply this discretion on the applicant's behalf.
Decision makers must be satisfied that an administrative error has in fact occurred. Most cases of administrative error will require examination of client records relating to the relevant visa. Advice can be sought from the Citizenship Help Desk, National Office.
ISSUES FOR THE TRIBUNAL
The first issue is whether the discretion under s 22(4A) is enlivened. This requires that the Tribunal decide whether, in Mr Macdonald’s case, an administrative error was made. If an administrative error was made, the second issue is whether or not to exercise discretion under s 22(4A) in Mr Macdonald’s favour.
Mr Macdonald’s case
Mr Macdonald said he arrived in Australia as an assisted migrant in 1969 and has been a permanent resident ever since. He has been in continuous employment and has only ever left Australia for short overseas holidays. He said that on arrival in Australia, he was told that, after two years, he could vote and travel freely in and out of Australia. It was on this basis that he left Australia for a three week holiday on 26 August 2009. He was never informed of any change in his situation. He said many assisted migrants still believe that they have an unfettered right to permanent residency in Australia and to travel without restraint.
Mr Macdonald said that in 2004, his ex-wife took legal action against him to try and prevent him taking their daughter overseas. She refused to give him access to his passport which was in the former matrimonial home, and he was therefore obliged to apply for a new British passport to enable him to travel. It is probably for this reason that he applied for and obtained a Subclass 155 visa in 2004 although, he said, he has no recollection of doing so. Mr Macdonald conceded that had he read the terms of the Subclass 155 visa in his passport, he would have realised that it was not valid for entry into Australia after 10 May 2009. However, at that time, he still believed he had an unfettered right to permanent residency and to travel.
Mr Macdonald said that when, on 16 September 2009, he checked in at Glasgow airport for his return flight to Australia, he was informed by the airline’s official that he did not have a valid visa. He asked what he should do and was directed to another counter where an electronic application for a visa was made on his behalf, he paid a fee and he was told he had been granted a visa enabling him to board the flight and return to Australia. Mr Macdonald said he was not aware of what type of visa it was. He was not given any documentation about the new visa and there was nothing inserted in his passport. He was stressed and the time within which he needed to board the flight was extremely limited. Had there been more time and he had been less stressed, he might have questioned the official about why he needed a visa and could have ascertained what type of visa had been issued. As it was, he did not do so and, when he arrived back in Australia, the Immigration officer at Sydney airport merely stamped his passport “Arrived” and nothing more was said to him.
Mr Macdonald said had he realised that he was travelling on a temporary visa he would have attended to this immediately on his return to Sydney. He never realised that he had become an unlawful non-citizen after 19 December 2009 and he certainly did not intend this. Mr Macdonald said he was never informed that the visa issued to him on 16 September 2009 was a temporary visa, and he contended that it was an administrative error for the Department of Immigration and Citizenship (the Department) not to have done so when they had his address and telephone number and could have contacted him. He argued that upholding the decision to deny him citizenship would be a denial of natural justice.
Mr Macdonald said it is no comfort to him to be told there is no reason why a new application for citizenship in February 2015 would be rejected. He is making plans to retire as soon as possible and hopes to do some travelling, perhaps spending a month or two in the UK. He said it is absurd that he has been denied citizenship after more than 40 years as a permanent resident and was treated as a newly arrived person in Australia who had overstayed their visa. At a pre-hearing conference, the Departmental representative said to Mr Macdonald that he (Mr Macdonald) “had slipped between the cracks” which, Mr Macdonald said, indicated that there must have been an administrative error for this to occur.
Mr Macdonald referred to the last sentence of paragraph 1.1 of the Department’s Procedures Advice Manual (PAM) and noted Mr Kikkert’s evidence, discussed below, that the Department has recently changed its procedures and now sends information to Electronic Travel Authority (ETA) holders information explaining the conditions of the ETA. He contended this amounts to tacit acknowledgement by the Department that it was in error for not formerly doing so.
The Department’s case
At my request, Mr Kikkert, for the Department, sought instructions on the process by which a Subclass 976 (Electronic Travel Authority (Visitor)) (Class UD) temporary visa is granted. He said that such visas are commonly applied for electronically by travel agents or airlines on behalf of their clients. If granted, the visa is electronically attached to a person’s passport. However, there is no visa information entered into the physical passport itself. What happens is that when the person bearing the passport presents it to an Immigration officer on entry into Australia, the Immigration officer will scan the passport electronically and this will connect the passport with the electronic visa. Assuming any other requirements have been satisfied, the Immigration officer will then stamp the passport with an Immigration Australia “Arrived” stamp stating the date of arrival and the port of entry. The stamp does not make any reference to the person’s electronically issued visa or, in particular, to the date of expiry of the visa or conditions attached.
Mr Kikkert referred to the relevant part of the PAM relating to Electronic Travel Authorities (ETAs). This states in paragraph 1.1 that ETAs are electronically issued and stored authorities for travel to Australia for short term tourism or business visits:
The ETA, which is available to passport holders from a number of countries and regions and is used by approximately 80% of short term visitors to Australia, is available via the internet or from participating travel agents and airlines or from departmental offices overseas.
The ETA differs from normal visitor visas in that:
·there is no application form to complete
·without exception, no visa label is issued
·less stringent visa criteria apply.
Unlike other visitor visas, however, ETAs are subject to additional mandatory conditions – see section 20 ETA conditions. Officers need to be aware of these conditions when providing advice about ETAs, as ETA holders in breach of visa conditions risk visa cancellation on arrival in immigration clearance.
Paragraph 1.2 describes the three types of ETAs, including relevantly the Subclass 976 visitor ETA which permits a maximum three month stay on entry. PAM paragraph 2.1 states:
Form 1147 (Information for ETA holders) provides information about ETA validity and conditions. It is on the departmental website.
The department recommends to participating travel agents and airlines that they give this form to persons who are granted an ETA.
Mr Kikkert said enquiries made by the Department in Mr Macdonald’s case indicate that it was an airline official at Glasgow airport who assisted him in obtaining a Subclass 976 visitor ETA. Mr Kikkert said the Department is aware that travel agents are likely to give clients the Form 1147 but airlines often do not. Mr Macdonald’s evidence is that he did not receive any information from the official who assisted him in obtaining an ETA. Mr Kikkert noted that the Department has changed its procedures in the past two or three weeks and now automatically sends those granted an ETA an email explaining the conditions of the ETA.
Mr Kikkert referred the Tribunal to four recent Tribunal decisions in which the meaning of the words ‘administrative error’ was discussed, referred to below. He contended that the words should, in this instance, be interpreted as meaning an error made by the Department in performing its administrative functions. He submitted that there was no such administrative error in this case which caused Mr Macdonald to become an unlawful non-citizen. Here, any error was by the airline official who assisted Mr Macdonald in obtaining a Subclass 976 visitor ETA and not by the Department. Moreover, the Subclass 155 visa granted on 10 May 2004 clearly stated “Must Not Arrive After 10MAY09”: as a non-citizen, Mr Macdonald had a responsibility to ensure his lawful status while in Australia, and should have been aware of his legal status at the time he departed Australia on 26 August 2009.
In the alternative, Mr Kikkert submitted that if the Tribunal were to find that there was an administrative error, thereby enlivening the discretion in s 22(4A), then the discretion should not be exercised in Mr Macdonald’s favour because: (1) he did not take personal responsibility to ensure his legal status while present in Australia; (2) he is not prevented from applying for citizenship again when he satisfies the general residence requirement (seemingly in February 2015); (3) he has not provided sufficient evidence to establish that he would suffer hardship or disadvantage if he is not granted citizenship at this time; and (4) he now has a visa (a Subclass 155 visa granted on 11 February 2012) which entitles him to enter Australia until 11 February 2016.
DISCUSSION
As stated above, the first issue for the Tribunal is whether the discretion in s 22(4A) of the Act is enlivened: was Mr Macdonald present in Australia as an unlawful non-citizen during the period 19 December 2009 to 11 February 2011 because of an administrative error? The Instructions (see paragraph 15, above) state that “each case will need to be assessed on its own merits”, but non of the three examples provided are similar to the situation in Mr Macdonald’s case.
In Chaudhary and Minister for Immigration and Citizenship (2010) 119 ALD 632, at [28] - [33], I discussed the meaning of ‘administrative error’ in s 22(4A) of the Act. At [32], I said:
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, the relevant part of which is included at paragraphs [16] and [17] above. I note that the instructions indicate that the words should be interpreted broadly but the examples given and the tenor of the text 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.
Mr Kikkert also referred me to three other Tribunal decisions in which the meaning of the words ‘administrative error’ in this context was discussed. In Sever and Minister for Immigration and Citizenship [2011] AATA 449, at [39], Senior Member Redfern said, referring to the Instructions,
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.
She said that a failure or an oversight by the applicant’s lawyers was not, in her view, an administrative error within the meaning of s 22(4A). See also Melhem and Minister for Immigration and Citizenship [2010] AATA 993, at [37].
In Rogers and Minister for Immigration and Citizenship [2011] AATA 592 (Rogers), at [39], Deputy President Jarvis noted:
… It is incumbent on the Department to provide clear guidance 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).
Mr Macdonald’s evidence is that he was provided with no information about the terms of the visa he was granted at Glasgow airport and nothing evidencing the grant of the visa was entered in his passport. He was not informed and did not know he had been granted a visitor visa valid for only three months. At that time, he still believed that as an assisted migrant he had an unfettered right to permanent residency in Australia and to travel without restraint. When informed by an airline official on 16 September 2009 that he did not have a valid visa, he assumed that a mistake had been made because, he said, he had never been informed of any change in his status. When he arrived back in Australia and his passport was stamped ‘Arrived’ by an Immigration official, Mr Macdonald thought nothing more of it. Mr Macdonald said had he realised that he was travelling on a temporary visa he would have attended to this immediately on his return to Sydney.
While it was an airline official at Glasgow airport who assisted in obtaining the ETA for Mr Macdonald, in my view it was an administrative error, for which the Department was ultimately responsible, not to have ensured that Mr Macdonald was properly informed of the terms of his visa. Without any documentary information being provided to him, and there being no relevant entry in his passport, either at the time of issue of the visa or on his arrival back in Australia, it was not unreasonable in circumstances where he had been a permanent resident of Australia for 40 years, for Mr Macdonald not to realise that the visa he had been granted was only of limited duration. As Deputy President Jarvis noted in Rogers, it is incumbent on the Department to provide clear guidance to applicants who will generally be unaware of the complex requirements of the Act and Regulations. This did not happen in Mr Macdonald’s case. Moreover, it is notable that the Department has recently changed its procedures so that ETA holders are automatically sent an email explaining the conditions of their ETA.
Thus, I am satisfied that Mr Macdonald was in Australia as an unlawful non-citizen during the period 19 December 2009 to 11 February 2011 because of an administrative error and the discretion in s 22(4A) is therefore enlivened.
The second issue is whether to exercise the discretion in Mr Macdonald’s favour to treat the period 19 December 2009 to 11 February 2011 as one in which Mr Macdonald was not present in Australia as an unlawful non-citizen. I note that when Mr Macdonald discovered a problem with his status in 2011 he took steps to address that problem by obtaining a further Subclass 155 visa. He has now been a permanent of Australia for about 43 years and, at the age of 68, he wishes to retire and hopes to do some travelling. Understandably, he wishes to sort out his status before doing so and does not want to wait more than two years until February 2015. For these reasons, I am satisfied that the discretion in s 22(4A) of the Act should be exercised in his favour and that this is the correct or preferable decision in all the circumstances of this case. Thus, s 22(1)(b) is satisfied and, in light of the Respondent’s concession that at the time Mr Macdonald made his application for citizenship on 7 March 2012, he also satisfied s 22(1)(a) and (c), he therefore satisfies the general residence requirement in s 22(1) of the Act.
DECISION
The decision under review is set aside and the matter remitted to the Respondent to assess the remaining eligibility criteria for citizenship with the direction that Mr Macdonald satisfies the general residence requirement in s 22(1) of the Act.
I certify that the preceding 37 (thirty seven) paragraphs are a true copy of the reasons for the decision herein of Deputy President R P Handley.
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Associate
Dated 24 October 2012
Date of hearing 10 October 2012 Date final submissions received 10 October 2012 Applicant In person Advocate for the Respondent Sean Kikkert
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