Brian Plunkett and Minister for Immigration and Border Protection
[2014] AATA 828
•5 November 2014
[2014] AATA 828
Division GENERAL ADMINISTRATIVE DIVISION File Number
2014/2913
Re
Brian Plunkett
APPLICANT
And
Minister for Immigration and Border Protection
RESPONDENT
DECISION
Tribunal Ms N Isenberg, Senior Member
Date 5 November 2014 Place Sydney The decision under review is affirmed.
.........................[sgd]...............................................
Ms N Isenberg, Senior Member
CATCHWORDS
CITIZENSHIP – Application for Australian Citizenship – General Residence Requirements not satisfied – Whether administrative error – No administrative error – No significant hardship or disadvantage – Decision under review affirmed
LEGISLATION
Australian Citizenship Act 2007 (Cth), ss 5(1), 21(2)(c), 22(1), 22(1)(c), 22(5), 22(6), 22(1B)
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, Chapter 5, paragraph 5.16
REASONS FOR DECISION
Ms N Isenberg, Senior Member
5 November 2014
BACKGROUND
Dr Brian Plunkett, the Applicant, is a citizen of New Zealand who was granted a Skilled -Onshore Independent New Zealand Citizen (Permanent) (Subclass 861) visa on
10 January 2008. That visa permitted the Applicant to leave and return to Australia for a period of five years. The travel facility on the Applicant's Subclass 861 visa therefore ceased on 9 January 2013.
On 14 July 2013 the Applicant departed Australia to attend a family wedding in New Zealand. On his return, on 18 July 2014, because his subclass 861 visa had expired, he was granted a Special Category (Temporary) (Subclass 444) visa which permits the holder to remain in Australia while the holder is a New Zealand citizen. On
28 February 2014 the Applicant was granted a Five Year Resident Return (Permanent) (Subclass 155) visa.By application dated 30 March 2014 the Applicant applied to become an Australian citizen pursuant to s 21 of the Australian Citizenship Act 2007 (Cth) ('the Act') but his application was refused on the basis that he failed to meet the general residence requirement.
The Applicant seeks review of that decision.
RELEVANT LEGISLATION
A person is eligible to become an Australian citizen if the Minister, or the Tribunal on review, is satisfied that the person fulfils the general residence requirement:
s 21(2)(c) of the Act.
Subsection 22(1) of the Act relevantly provides:
Subject to this section, for the purposes of section 21 a person satisfies the general residence requirement if:
…
(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.
"Permanent resident” is defined by s 5(1) of the Act which, states that a person is a permanent resident at a particular time if, and only if, the person is present in Australia at the time and holds a permanent visa at that time.
ISSUES
There are two primary issues for determination by the Tribunal in this application:
i.Did the Applicant meet the general residence requirement?
ii.If not, was that due to an administrative error?
CONSIDERATION
The Applicant gave evidence that he arrived in Australia on 18 January 2002 with the intention of permanent migration. Dr Plunkett is a medical practitioner, and at the time of his arrival in Australia he transferred the registration of his specialist medical training position in Cardiothoracic Surgery from New Zealand to Australia as a commitment to his intention to remain permanently in Australia.
He has lived in Australia continuously since 2002, except for very brief sojourns offshore for conferences, exams and the occasional holiday.
In August 2007 he applied for permanent residency which was granted on
10 January 2008. On 19 April 2008 he married an Australian citizen, with whom he has had two daughters, who are also Australian citizens. The Applicant has gone on to complete his specialist medical training in Cardiothoracic Surgery, all based entirely in Australia.
The Applicant has been offered an 18 month Surgical Fellowship in Canada to commence in January 2015, after which he intends to return to Australia to live and work as a consultant within the specialty. He submitted that when he takes up the Fellowship his eligibility for Australian citizenship will be further delayed because he will not be able to meet the general residence requirements until, he estimates, 2020.
At the hearing, the Applicant expressed his extreme disappointment that despite being a model citizen, with a long history of proven professional and personal commitment to establishing a life and family in Australia, he has been thwarted from realising this goal by what appears to be a simple error of communication with respect to his visa status. The Applicant accepted his own failings in this process, but is acutely aware that had he been notified at that time, this appeal would not be necessary. The Applicant also thinks this case has implications for all future New Zealand applicants for Australian Citizenship.
(i) Did the Applicant meet the general residence requirement?
In the period 12 months immediately before the day that the Applicant made his application for citizenship he was present in Australia as a permanent resident for the following periods:
i.from 29 March 2013 to 14 July 2013, as the holder of a Subclass 861 visa
(108 days); andii.from 28 February 2014 until 29 March 2014, as the holder of a Subclass 155
(30 days).The Applicant therefore was only present in Australia as a permanent resident for the period of 138 days in the 12 months immediately before the day he made his application for citizenship. At all other times, he was either not present in Australia (albeit for only a few days) or was present in Australia, but as the holder of a temporary visa.
I find that the Applicant does not meet the general residence requirement provided by s 22(1) of the Act.
(ii) Was the Applicant’s failure to meet the general residence requirement due to an administrative error?
Section 22(5) of the Act relevant provides that:
For the purposes of paragraph (1)(c), the Minister may treat a period as one in which the person was present in Australia as a permanent resident if the Minister considers the person was present in Australia during that period but, because of an administrative error, was not a permanent resident during that period.
In considering the meaning of ‘administrative error’ in the context of an application for citizenship by conferral, Chapter 5 of the Australian Citizenship Instructions (ACIs) provides a decision maker with some relevant guidance. Whilst I am not bound to apply policy guidelines of the kind referred to in the ACIs (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.Paragraph 5.16 of the ACIs which relates to administrative error relevantly provides that:
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:
• 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 ...
Decision makers must be satisfied that an administrative error has in fact occurred.
The Applicant contended that he was not notified that the travel facility of five years which permitted him to travel to and enter Australia as the holder of a Subclass 861 visa had ceased.
The Applicant said he was surprised when his application for citizenship was rejected in May 2014 on the grounds that he did not have permanent residency. The Applicant also expressed surprise and that his permanent residency had lapsed on 10 January 2013, being five years since it was granted. He said he had initially been aware it was for a period of five years and that it was incumbent upon him to renew it. He acknowledged that his visa had lapsed because he had overlooked renewing it. Due to his workload over the last three to four years he had failed to notice the approaching, and then subsequent expiry, of his permanent residency period. I therefore do not find that there was any administrative error on the part of the Respondent which led to the Applicant’s loss of his permanent residence status, rather, that it was the Applicant’s own lack of attention to his visa status that led to the loss of his permanent resident status.
Significant hardship or disadvantage
Section 22(6) of the Act permits the Minister (and the Tribunal on review) to treat a period as one in which the person was present in Australia as a permanent resident if the person was present in Australia during that period (except as a permanent resident or an unlawful non-citizen); and the person will suffer significant hardship or disadvantage if that period were not treated as one during which the person was present in Australia as a permanent resident.
The Applicant submitted that he was disadvantaged by not being notified of his change in residency status until his failed application for citizenship. The Applicant contended that had he been aware of his change in status, he would have applied for his permanent residency sooner than February 2014. The Applicant was apparently mistaken as to some timing issues. He applied for permanent residence in February 2014, but his application for citizenship was not made until a month later. I therefore do not accept that the Applicant was unaware of his change of visa status until after his citizenship application had been refused in May 2014. Further, in the written statement he submitted, the Applicant notes that following his return to Sydney after the three-day visit to New Zealand with his family he was informed by border control that his visa had been changed to a special category visa (SCV) status.
Nonetheless, the Applicant claimed that his visa status had been ‘unknowingly changed’ to a temporary visa. Yet, it is apparent there was no ‘change’ as contended by the Applicant, rather his previous visa had expired. Had he not been granted a SCV on his return to Australia, he would not have been permitted into the country at all.
The Applicant said he had been informed that New Zealanders had a default SCV available to them. The Applicant submitted that if he had been a resident of another country without access to a SCV, he understood that his expired permanent residency would have held him at border control, he would have been informed of the expiration of his visa, and entered on a temporary visa with instruction to renew his permanent residency. He therefore claims that as a New Zealander he was disadvantaged. I do not accept that access to a SCV represented any disadvantage to the Applicant.
The Applicant could point to no hardship he would experience as a result of his application’s refusal, other than his citizenship being delayed. He agreed his job offer in Canada was not dependent on him being an Australian citizen.
A further application for citizenship?
Section 22(1B) of the Act provides that a permanent resident may be absent from Australia for less than 90 days in the 12 months immediately before the day of the application; and still meet the general residence requirement.
The Respondent noted that, presuming that Dr Plunkett continues as a permanent resident, he would satisfy the general residence requirement provided by s 22(1)(c) on
28 February 2015, that is 12 months after he regained permanent resident status. Unfortunately, on 7 January 2015 he leaves the country to take up the Fellowship. Notwithstanding that, by 28 February 2015 he will have had less than 90 days overseas and s 22(1B) will apply. As discussed at the hearing there is a ‘window’ during which the Applicant can take advantage of s 22(1B). Whether he does so, is entirely a matter for him.I observe that a citizenship application must be made onshore. While I accept that it may be bothersome to the Applicant to have to return to Australia to make his application, I do not consider it to give rise to significant hardship or disadvantage.
DECISION
The decision under review is affirmed.
I certify that the preceding 30 (thirty) paragraphs are a true copy of the reasons for the decision herein of Ms N Isenberg, Senior Member ........................................................................
Associate
Dated 5 November 2014
Date of hearing 16 October 2014 Applicant In person Solicitors for the Respondent Mr M Bock, Clayton Utz
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