Barik and Minister for Immigration, Citizenship and Multicultural Affairs (Citizenship)

Barik and Minister for Immigration, Citizenship and Multicultural Affairs (Citizenship) [2023] AATA 2479 (11 August 2023)
Division: GENERAL DIVISION
File Number(s):2022/9045
Re:Nayan Kishor Barik
APPLICANT

AndMinister for Immigration, Citizenship and Multicultural Affairs
RESPONDENT

DECISION

Tribunal:Senior Member B J Illingworth
Date:11 August 2023
Place:Adelaide

The decision under review is affirmed.

.........................[Sgnd].........................................
Senior Member B J Illingworth

Catchwords

CITIZENSHIP – Australian citizenship by conferral – failure to pay application fee – refusal to approve citizenship – residence requirement not satisfied – residence prohibition applies –discretion to treat an applicant as satisfying the general residence requirement – lawful non-citizen – unlawful non-citizen – decision under review is affirmed

Legislation
Australian Citizenship Act 2007 (Cth)
Migration Act 1958 (Cth)
Cases
Chaudhary and Minister for Immigration and Citizenship (2010) 119 ALD 632
Secondary Materials
Citizenship Policy Instruction (CPI) 8 – Residence Requirements and Discretions
REASONS FOR DECISION
Senior Member B J Illingworth
11 August 2023
INTRODUCTION

On 3 November 2022, a delegate of the Minister for Immigration, Citizenship and Multicultural Affairs (“the Respondent”) (“Respondent’s Delegate”) refused Mr Nayan Kishor Barik’s (“the Applicant”) application for Australian citizenship by conferral, on the basis he did not satisfy s 21(2)(c) of the Australian Citizenship Act 2007 (Cth) (“the Act”).
The Applicant’s application for Australian citizenship was dated 1 April 2022, and lodged on 6 April 2022,[1] at which time the Applicant was the holder of a Distinguished Talent (subclass 858) visa, which was granted on 19 February 2021.[2]
[1] Exhibit A, p 28.
[2] Exhibit A, p 10–13.
The Respondent’s Delegate was satisfied the Applicant had been an ‘unlawful non-citizen’ in Australia, as defined by s 14(1) of the Migration Act 1958 (Cth) (“Migration Act”), for a period during the four years immediately preceding his application for Australian citizenship, namely, between 15 September 2020 when his temporary Postgraduate Research Sector (subclass TU–574) visa ceased, and 17 September 2020 when his Bridging E (class WE) (General) (subclass 050) visa (“Bridging visa E”) was granted. Accordingly, he was an ‘unlawful non-citizen’ for one day on 16 September 2020, and therefore, did not meet the general residence requirement in s 22(1)(b) of the Act.[3]
[3] Exhibit A, p 28–30.
Section 22(4A) of the Act grants the Respondent a discretion to treat an applicant as satisfying the general residence requirement in s 22(1)(b) where that person was an ‘unlawful non-citizen’, and present in Australia, during that four-year period immediately prior to lodging an Australian citizenship application, if, the person was present in Australia during that period because of an administrative error by the Respondent.
The Applicant argued the reason he was an ‘unlawful non-citizen’ was because of administrative error of the Respondent. The Respondent’s Delegate did not accept that argument.
In the application for review now before the Tribunal, the Applicant again argues the reason he was an ‘unlawful non-citizen’ was because of an administrative error by the Respondent, enlivening the discretion in s 22(4A) of the Act, and he should, therefore, be treated as a person who was a ‘lawful non-citizen’ present in Australia as defined by s 13(1) of the Migration Act.
The Applicant was self-represented. The Respondent was represented by Ms Baras-Miller (“Respondent’s Counsel”) on the instructions of Mr Keith Sypott from the office of the Australian Government Solicitor. The Tribunal received into evidence the documents as listed in the exhibit list, held on the Tribunal file.
LEGISLATION
Section 21(1) of the Act provides that a person may apply to become an Australian citizen.
The eligibility requirements for Australian citizenship are contained in s 21(2) of the Act which relevantly read as follows:
“(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 satisfies the defence service requirement (see section 23), at the time the person made the application; …”
A permanent resident is defined in s 5 of the Act. It is not in dispute the Applicant was, at the time of his application for Australian citizenship by conferral, a permanent resident.
The general residence requirements in s 22(1) of the Act relevantly provides:
“(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. …”
Section 22(4A) of the Act provides a Ministerial discretion as a consequence of administrative error; it reads:
“(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.”
Section 13 of the Migration Act states a ‘lawful non-citizen’ is:
“(1) A non-citizen in the migration zone who holds a visa that is in effect is a lawful non-citizen.
(2) An allowed inhabitant of the Protected Zone who is in a protected area in connection with the performance of traditional activities is a lawful non-citizen.”
Section 14 of the Migration Act additionally provides a ‘unlawful non-citizen’ is:
“(1) A non-citizen in the migration zone who is not a lawful non-citizen is an unlawful non-citizen.
…
BACKGROUND
The Applicant was born on 4 May 1982. He married on 28 February 2012 and has a child, aged approximately 4 years.
On 19 February 2016, the Applicant arrived in Australia, from India, on a temporary Postgraduate Research Sector (subclass TU–574) visa, which visa ceased on 15 September 2020.[4]
[4] Exhibit A, p 29, 33, 94.
The Applicant’s wife and child left Australia, for India, in about February 2020 and were unable to return to Australia because of COVID–19 pandemic travel restrictions. The restrictions also prevented the Applicant leaving Australia at the time his visa was to cease and thereby avoid becoming an ‘unlawful non-citizen’ at the time his visa expired.
On 8 September 2020, the Applicant’s wife sent an email to the Respondent advising she had submitted her application (offshore) for the ‘Global Talent Program (Advance Manufacturing)’ on 17 August 2020 and had not yet received a unique identification number.[5] She also advised her visa expired on 15 September 2020 and due to the COVID–19 pandemic travel restrictions, she and her baby were in India and unable to return to Australia. She advised she had been separated from her husband who was in Australia running his own business. She expressed her worry that her husband would not have a visa to stay in Australia. His visa also expired on 15 September 2020.
[5] Exhibit A, p 16.
On 9 September 2020, the Respondent replied to the Applicant’s wife confirming receipt of the expression of interest (EOI) and advised:
“We are experiencing delays in responding to Expressions of Interest received via the Global Talent contact form. Clients who intend to remain in Australia and whose visa is about to expire should consider other visa options in case EOI processing delays extend beyond their visa expiry date.”[6]
[6] Ibid.
On 9 September 2020, the Applicant’s wife lodged a Student (subclass 500) visa application in which she included the Applicant as a dependent.[7] The Respondent sent the Applicant’s wife a letter confirming receipt of her Student visa application.[8]
[7] Exhibit B, ST1k p 3–24.
[8] Exhibit A, p 14–15.
On 11 September 2020, the Applicant’s wife was sent a Notification of invalid application for a Student (Temporary) (class TU) Student (subclass 500) visa letter, for her Student visa application made on 9 September 2020. She did not pay her application fee. She was advised she had to relodge a new application.[9]
[9] Exhibit B, ST1l p 25–27.
On 11 September 2020, the Respondent replied at 1:18AM to an email from the Applicant’s wife and advised that to be eligible for a Bridging visa E a person must no longer hold a valid visa or be a current holder of a Bridging visa E.[10] The author wrote, “I cannot provide you with specific advice however I will provide you with general information.” The Author then wrote:
“If a person still holds a valid substantive visa which is due to expire and they cannot depart, it is recommended they investigate whether they are eligible to make an onshore visa application – refer to our Department’s website for visa options…”
The author provided the webpage link and said, “or seek advice from a Migration Agent”.[11] The author also wrote:
“If a person no longer holds a valid visa then they are eligible to apply for a Bridging visa E but must meet certain criteria to be granted (for example, making arrangements to depart)”
The author provided another web page link.
[10] Emphasis added.
[11] Exhibit C, FST–1 p 1–2.
In the Applicant’s statement, dated 3 November 2022, the Applicant stated he should never have been an ‘unlawful non-citizen’ because, in respect of the Student visa lodged on 9 September 2020:
“We were told that we didn’t need to pay the $620 for the student visa application as this was going to be covered as we were receiving full funding under a training scheme approved by the Commonwealth government of Australia.”[12]
[12] Exhibit A, p 93 [5].
The Applicant also said in his statement that on 14 September 2020 they paid the $620 fee and were told by the immigration office that they did not need to do anything further.[13]
[13] Exhibit A, p 93 [6].
On 15 September 2020, the Applicant said he received a call from the Respondent advising payment of the $620 was not reflected in the Respondent’s records and he needed to lodge a Bridging visa E application that same day to remain a ‘lawful non-citizen’.[14]
[14] Exhibit A, p 93 [7].
On 16 September 2020, the day after his temporary Postgraduate Research Sector (subclass TU–574) visa expired, the Applicant lodged an application for a Bridging visa E, and on 17 September 2020 that visa was granted.[15]
[15] Exhibit B, ST1n p 37.
On 10 January 2021, the Applicant was granted a Distinguished Talent (subclass 858) visa, which was a permanent visa within the meaning of the Act. He held that visa at the time he applied for Australian citizenship by conferral.[16]
[16] Exhibit A, ST1k p 10–13.
On 6 April 2022, the Applicant lodged his application for Australian citizenship by conferral.[17]
[17] Exhibit A, ST1m p 31.
ISSUES TO BE DETERMINED BY THE TRIBUNAL
The only issue to be determined by the Tribunal is whether there was an administrative error by the Respondent that enlivened the discretion in s 22(4A) of the Act and consequently the Applicant should be treated as a person who was not present in Australia as an ‘unlawful non-citizen’ in the period of four years immediately before the day the Applicant made the application for Australian citizenship by conferral.
THE EVIDENCE
The only witness called in the application before the Tribunal was the Applicant. His wife was studying in America at the time of the hearing.
On 17 January 2023, the Tribunal gave directions to the Respondent to provide to the Tribunal and the Applicant information about the Respondent’s online payment system detailing credit cards used by the Applicant, and any evidence of lodgement of a fee for a Student visa application.
The Tribunal received into evidence an email from the Respondent, dated 24 January 2023, advising the Respondent identified three online payments made through the Applicant’s wife’s ImmiAccount,[18] “for various applications between 23 December 2020 and 3 April 2022” and the Respondent provided the credit card details.[19] No payment was made through the ImmiAccount for a Student visa application, lodged on 14 September 2020, or any other Student visa application.
[18] Note: this is an online portal that enables a person to apply for a visa and pay the fee by credit card.
[19] Exhibit H.
On 7 March 2023, the Tribunal gave directions for the Respondent to provide to the Tribunal and Applicant copies of any records of telephone conversations between the Applicant’s wife and the Respondent around September 2020.
The Tribunal received into evidence an email from the Respondent, dated 8 March 2023, advising the Respondent did not hold any records of telephone conversations with the Applicant’s wife in regards payment of a Student visa application fee.[20]
[20] Exhibit I.
The Applicant’s Evidence
The Applicant said his wife came to Australia in 2016 as a student. She was granted a temporary Postgraduate Research Sector (subclass TU–574) visa and the Applicant was her named dependent. That was the visa that was to expire on 15 September 2020.
In February 2020, the Applicant’s wife and child went to India, they were unable to return due to COVID–19 pandemic travel restrictions. They remained in India for 13 months. The Applicant said his wife made the various visa applications to the Respondent when she was offshore in India. He took no part in the process.
The contents of the Applicant’s statements, insofar as they detailed what happened with regards the lodging of applications on 17 August 2020; the follow-up communication on 8 September 2020; the communications on 9 September 2020 between his wife and the Respondent and the lodging of a Student visa application that same day; together will the communication on 11 September 2020 and 14 September 2020, was information provided to the Applicant by his wife. He had no communication with the Respondent. The only documents he provided to his wife in support of the visa applications were his driver’s licence and passport, which he sent to her in India so she could complete the 9 September 2020 Student visa application.
Insofar as he said in his statement, they were told they did not have to pay the student visa application fee of $620, he said in evidence that was information given to his wife in India by someone at the university. It was not something he or his wife were told by the Respondent. He had no evidence to support the ascertain that no fee was payable.
In regards the payment of the $620 fee for the Student visa application, his wife attempted to make the payment by credit card from India. The transaction would not go through. No payment was ever received by the Respondent for that application. The Applicant said he did not arrange to pay the money himself. His wife was doing this because she was the primary visa applicant. They never paid the $620 to the Respondent.
The only communication the Applicant had with the Respondent was when he was telephoned on 15 September 2020 and was advised no payment was received for the Student visa application. The Respondent recommended he make an application for a Bridging visa E.
In evidence, the Applicant said he made the application for the Bridging visa E on 15 September 2020. The Tribunal referred the Applicant to his statement, dated 3 November 2022, in which he said he applied for the Bridging visa E the following day on 16 September 2020.[21] He then agreed the statement was correct. He was unable to apply for a Bridging visa E until such time he no longer held a valid visa. That was consistent with the information provided in an email from the Respondent to the Applicant, dated 11 September 2022.[22] The Applicant also checked the webpage link provided in the email which was consistent with the information provided in the email about when the Bridging visa E could be made.
[21] Exhibit A, p 93 [7].
[22] Exhibit B, ST1j p 1.
The Applicant said his Bridging visa E was to be granted on 16 September 2020. He said he spoke to the Respondent but could not say who he spoke to and could not give accurate detail about the conversation.
When asked by the Tribunal what was the administrative error by the Respondent that enlivened the discretion in s 22(4A), he replied, “because there was a one-day delay”. He said the mistake was the failure to grant the Bridging visa E on the same day he applied for the visa, namely, 16 September 2020. He said because of COVID–19 travel restrictions he could not leave Australia and be lawful.
At the time of the Bridging visa E application, the Distinguished Talent (subclass 858) visa, which the Applicant and his wife had previously applied for, was still being processed. That was the visa they were subsequently granted on 19 February 2021.
In cross examination, the Applicant was referred to the Notification of invalid application for a Student (Temporary) (class TU) Student (subclass 500) visa,[23] which advised the application was finalised as invalid and a new application would need to be lodged.[24] The Applicant confirmed no new application was lodged.
[23] Exhibit B, ST1I p 25–27.
[24] Exhibit B, ST1l p 26.
The Applicant agreed he had not provided any record of the attempt to pay the $620 on 14 September 2020. He did not disagree with the email from the Respondent to the Tribunal, dated 24 January 2023, that no monies were paid to the Respondent in payment of a Student visa application.
The Respondent’s Counsel referred the Applicant to the email, dated 11 September 2020.[25] The Applicant said he subsequently telephoned the Respondent and was told there was no onshore visa application he could make, and hence, he filed the Bridging visa E when he no longer held a valid visa.
[25] Exhibit C, FST–1 p 1.
Closing Submissions
The Applicant said his wife was in America at the time of the hearing, which the Tribunal accepts. He submitted he and his wife were left with no option due to the impact of the COVID–19 pandemic. He could not leave Australia due to travel restrictions and thereby avoid becoming an ‘unlawful non-citizen’. The Tribunal accepts that evidence.
The Applicant submitted he had no control over the decision with regards his visa application and as properly understood, his criticism of the Respondent was the failure to grant his Bridging visa E on the same day he filed the application with the Respondent, namely, 16 September 2020, and thereby avoid being an unlawful non-citizen.
The Respondent relied on their Statement of Facts, Issues and Contentions. It was noted the Applicant concedes he was an ‘unlawful non-citizen’ for one day, which he says is the result of an administrative error by the Respondent.
However, the Applicant has failed to identify any administrative error on the part of the Respondent that resulted in him becoming an ‘unlawful non-citizen’.
He failed to produce evidence in regards the attempted payment of the $620 Student visa application fee. The Applicant was on notice the visa application was invalid. He never lodged a fresh application.
The Respondent’s Counsel referred to the Respondent’s “CPI 8” and the reference to administrative error.[26] Having regards to the CPI 8, it could not be said the fact the Applicant was granted the Bridging visa E on 17 September 2020 is evidence of unreasonable delay or error. To the contrary, it demonstrates efficient processing of the application filed the day before.
[26] Exhibit C, FST–2 p 7 [5.1].
CONSIDERATION

The statements of the Applicant about the engagement in the process of applying for various visas in August and September 2020 are based almost entirely upon what his wife said occurred. She was the person responsible for engaging with the Respondent to obtain new visas which process she undertook from India.
In his statement, dated 3 November 2022, the Applicant said, “we were told we didn’t need to pay the $620”.[27] His evidence was significantly different when he said it was the Applicant’s wife who was informed by someone from a university when she was in India that no fee was payable. The fact the Applicant’s wife relied on information provided by someone, other than the Respondent, or a Migration Agent, is troubling. The Applicant failed to produce any evidence in support of the suggestion no fee was payable, which was plainly wrong.
[27] Exhibit A, p 93 [5].
In his statement, dated 3 November 2022, he said,
“We received a letter from the department of immigration on Friday 11 September 2020 regarding a “Notification of invalid application for a Student (Temporary) (class TU) Student (subclass 500) visa” as the basic application charge of $620 was not paid.”[28]
He then said,
“Upon receiving this letter, we paid the $620 basic application fee on the Monday 14 September 2020 and were told by the immigration office that we did not need to do anything further.”[29]
This again was something told to the Applicant by his wife. He then said on 15 September 2020 he was advised by the Respondent the payment wasn't reflected in the system, and he had to apply for a Bridging visa E.
[28] Exhibit A, p 93 [6].
[29] Ibid.
That statement, dated 3 November 2022, does not accurately reflect what occurred. There is no evidence from the Applicant’s wife about her attempt to pay the fee. There are no banking records or other documents produced by the Applicant in support or that attempted payment. The Respondent advised the Tribunal and the Applicant, by email, on 24 January 2023, there were no relevant payments made in or about September 2020 in regards a Student visa application. It was the first time, when giving evidence, the Applicant explained his wife was unable to process the payment and no monies were received by the Respondent. Further, the Respondent’s records do not record any conversation with the Applicant’s wife in relation to payment of the Student visa application fee. Hence, the statement they paid the $620 and were told they “didn’t need to do anything further” is not evidence the Tribunal accepts.
There is no evidence that indicates any administrative error by the Respondent which resulted in the non-payment of the Student visa application fee. There is no evidence that provides a satisfactory basis upon which the Applicant, or his wife, could have reasonably concluded no fee was payable. There is no satisfactory evidence the Applicant’s wife attempted to pay the $620 visa application fee, or that the payment was not received. There is no satisfactory evidence the Applicant’s wife was told they did not need to do anything further. The evidence about the Student visa application is wholly unsatisfactory. The failure by the Applicant to obtain a Student visa or extension of the existing Student visa, where the Applicant was named by his wife as a dependent, is not infected with administrative error by the Respondent.
The complaint by the Applicant he did not receive his Bridging visa E on the day he made the application is not evidence of any administrative error by the Respondent. It is true, that if he was granted the Bridging visa E that same day the Applicant would not have been an ‘unlawful non-citizen’, but that does not demonstrate an administrative error by the Respondent. The fact it was granted the next day tended to demonstrate the Respondent’s efficiency in the process of granting the Bridging visa E.
The Tribunal is satisfied the Applicant received an email, dated 11 September 2020, saying the Respondent could not give advice, but gave some guidance on what to do. The Applicant acted upon the contents of that email and after speaking with the Respondent lodged his Bridging E visa application as soon as he no longer held a valid visa. There is no satisfactory evidence before the Tribunal that the Respondent gave any indication the visa would be granted on the day the Bridging visa E application was lodged.
CONCLUSION
Having regard to the evidence, the Tribunal is not satisfied there was any administrative error by the Respondent that resulted in the Applicant becoming an ‘unlawful non-citizen’, and accordingly the discretion in s 22(4A) of the Act in not enlivened.
It follows that the Applicant was an ‘unlawful non-citizen’ on 16 September 2020, which is within the four-year period prior to the Applicant’s application for Australian citizenship by conferral. Accordingly, the Applicant did not satisfy the general eligibility requirements in s 21(2)(c), and the general residence requirement in s 22(1)(b) of the Act.
DECISION
The decision under review is affirmed.

I certify that the preceding sixty-three (63) paragraphs are a true copy of the reasons for the decision herein of Senior Member B J Illingworth
............................[Sgnd].......................................
Associate

Date of Decision: 11 August 2023

Date of Hearing: 1 August 2023

Applicant: Self-represented

Solicitor for the Respondent: Mary Basas-Miller (Australian Government Solicitor)

[2023] AATA 2479

11 August 2023

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Date of Decision:	11 August 2023
Date of Hearing:	1 August 2023
Applicant:	Self-represented
Solicitor for the Respondent:	Mary Basas-Miller (Australian Government Solicitor)