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

This matter concerned an application for Australian citizenship by conferral made by the Applicant, who was born in 1982. The Applicant arrived in Australia in February 2016 on a temporary visa which expired on 15 September 2020. Due to COVID-19 pandemic travel restrictions, the Applicant was unable to depart Australia before his visa expired, resulting in him becoming an unlawful non-citizen from 15 September 2020. The Applicant subsequently applied for a Bridging visa E on 16 September 2020, which was granted on 17 September 2020. The Minister for Immigration, Citizenship and Multicultural Affairs refused to approve the Applicant's citizenship application. The Administrative Appeals Tribunal reviewed this decision.

The primary legal issues before the Tribunal were whether the Applicant satisfied the general residence requirement for Australian citizenship, and if not, whether a discretion existed to treat him as satisfying that requirement. Specifically, the Tribunal had to determine if the Applicant's status as an unlawful non-citizen for a period within the four years preceding his citizenship application meant he failed to meet the general residence requirement under section 22(1)(b) of the *Migration Act 1958* (Cth). The Tribunal also considered whether the Applicant's unlawful status was a result of administrative error by the Respondent, which could enliven a discretion under section 22(4A) of the Act to deem him as satisfying the residence requirement.

The Tribunal reasoned that the Applicant was an unlawful non-citizen on 16 September 2020, a date falling within the four-year period immediately prior to his citizenship application. This status meant he did not satisfy the general residence requirement as stipulated in section 22(1)(b) of the Act. The Applicant argued that his unlawful status was due to administrative error by the Respondent, contending that this should trigger the discretion under section 22(4A) to treat him as a lawful non-citizen. However, the Respondent's Delegate had not accepted this argument, and the Tribunal affirmed that the Applicant had not provided sufficient evidence to establish that his unlawful status arose from an administrative error on the part of the Respondent.

Consequently, the Tribunal affirmed the decision under review. The Applicant was found not to have met the general residence requirement for Australian citizenship by conferral, and the discretion to treat him as having met that requirement was not enlivened.