Chaudhary and Minister for Immigration and Citizenship - [2010] AATA 1006

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2010] AATA 1006

ADMINISTRATIVE APPEALS TRIBUNAL )

) No: 2010/2851

GENERAL ADMINISTRATIVE DIVISION )
ReRajat Chaudhary

Applicant

AndMinister for Immigration and Citizenship

Respondent

DECISION

TribunalMr R P Handley, Deputy President
Date15 December 2010
PlaceSydney
DecisionThe decision under review is set aside and the matter is remitted to the Department with the direction that the discretion in s 22(4A) of the Australian Citizenship Act 2007 should be exercised in favour of Mr Chaudhary to disregard the period 1 May to 7 May 2007 when he was an unlawful non-citizen in Australia. Mr Chaudhary therefore satisfies the general residence requirement referred to in s 22(1)(b) of the Act.
......................[sgd]......................
Mr R P Handley
Deputy President

CATCHWORDS

IMMIGRATION & CITZENSHIP - refusal to grant citizenship by conferral – Ministerial discretion - administrative error - Australian Citizenship Instructions – error in processing visa application fee – application invalidity - Procedures Advice Manual – mistake on part of departmental officer – serious consequences – decision under review set aside and remitted

RELEVANT ACTS

Australian Citizenship Act 2007: ss 21,22, 24

Australian Citizenship Act 1948 (repealed)

Migration Act 1958: s 46

Administrative Appeals Tribunal Act 1975: s 42A

Acts Interpretation Act 1901: s 15AB

CITATIONS

Re Lai and Minister for Immigration and Ethnic Affairs (1987) 11 ALD 535

Re Liu and Department of Immigration and Ethnic Affairs (1996) 41 ALD 589; (1996) 22 AAR 381

Re Al-Mughrabi and Secretary, Department of Immigration and Multicultural Affairs [1999] AATA 164

Minister for Immigration and Ethnic Affairs v Petrovski (1997) 73 FCR 303; (1997) 45 ALD 16; (1997) 154 ALR 606; [1997] FCA 154

Re Marasli and Minister for Immigration and Multicultural and Indigenous Affairs [2003] AATA 1093

Goldie v Minister for Immigration and Multicultural Affairs (2002) 121 FCR 383; (2003) 72 ALD 652; (2002) 36 AAR 238; [2002] FCAFC 367

OTHER AUTHORITIES

Australian Citizenship Instructions, Chapter 5, in effect 1 July 2010

Department of Immigration and Citizenship Procedures Advice Manual 3: “GenGuideA”, 1 July 2010

REASONS FOR DECISION

15 December 2010

Mr R P Handley, Deputy President

Rajat Chaudhary has applied to the Tribunal for a review of a decision of a delegate of the Minister of Immigration and Citizenship (the Minister) to refuse his application for Australian citizenship by conferral on the ground that he did not meet the residence requirements.

The Facts

Mr Chaudhary first arrived in Australia on 17 March 2004 having been granted a subclass 574 Postgraduate Research sector (temporary) visa. He was granted further subclass 574 visas until 30 April 2007, when his then subclass 574 visa expired. He did not hold a valid visa between 1 May and 7 May 2007. On 8 May 2007, Mr Chaudhary was granted a bridging visa.
Mr Chaudhary states that on Wednesday 25 April 2007 he attended the Sydney office of the Department of Immigration and Citizenship (the Department) in person to lodge his application for a further student visa. He took with him a letter from the University of Sydney, dated 17 April 2007, which he had obtained the previous week for the purpose of confirming with the Department his enrolment in a Master of Philosophy research degree in the Faculty of Architecture. (At this time, Mr Chaudhary had submitted his thesis and was awaiting comments from the external examiner.) Mr Chaudhary was told by a departmental officer that he had to provide a ‘Confirmation of Enrolment’ from his educational institution confirming his enrolment and his application was not accepted.
Mr Chaudhary states that when he returned to the University to ask for a Confirmation of Enrolment, he was told that because he had finished his course, the requirement for a ‘Confirmation of Enrolment’ was not applicable to him and the letter already issued by the University was sufficient. On Thursday 26 April 2007, Mr Chaudhary again attended the Department’s offices to lodge his application and told the departmental officer who attended him what had happened. The officer accepted the application which is date stamped 26 April 2007.
Mr Chaudhary said that he had attended the Department’s Sydney office on a number of previous occasions in order to renew his visa. On each occasion, he had paid the visa application fee in person by direct debit from his bank account using EFTPOS. On Thursday 26 April 2007, the counter officer asked whether he would like to pay the fee using a credit card. As Mr Chaudhary had recently obtained a credit card, he gave the officer his credit card details to facilitate a credit card payment. Mr Chaudhary said he was a bit nervous about the fact that it was close to the expiry date for his then current visa, and he told the officer of its pending expiry. The officer’s attitude was very casual about the processing of Mr Chaudhary’s application. He told Mr Chaudhary he would automatically go on a bridging visa. Mr Chaudhary asked the officer “Is that it?” and the officer replied, “That’s it.” Mr Chaudhary therefore assumed he had done everything required of him for the renewal of his visa and left the Department’s office. He did not really understand what a bridging visa was but thought some sort of visa would automatically “kick in” on the expiry of his student visa.
The Department did not process Mr Chaudhary’s visa application until the next day, Friday 27 April. When it did so, Mr Chaudhary’s credit card provider declined to accept the transaction, and the Department apparently sent Mr Chaudhary a letter dated 27 April 2007 informing him that his application for a visa had been refused. The Department’s computerised record system records the fact of a letter being sent to Mr Chaudhary on that day but the Department has been unable to provide a copy of this letter despite this being requested by the Tribunal. Mr Chaudhary said he did not keep a copy because he was subsequently granted permanent residence and had no idea that this issue would arise again when he applied for citizenship. The wording of the letter is therefore unknown.
Mr Chaudhary said he received this letter a few days later – he thinks on Tuesday 1 May, which was after his visa had expired. He immediately telephoned the Department to enquire what he should do to rectify his situation and was told that he was in “a lot of trouble” and should approach an immigration agent for advice. Never having been in this situation before, Mr Chaudhary asked among his friends for the name of a person whom he could approach for advice. He was given immigration lawyer Simon Jeans’ name and he phoned Mr Jeans and subsequently went to see him. Mr Jeans confirmed it was a serious matter and wrote a letter on his behalf which Mr Jeans personally took to the Department’s office.
The Department’s computerised records show that Mr Chaudhary was granted a bridging visa on 8 May 2007. The Tribunal requested a copy of the Department’s records detailing Mr Chaudhary’s contact with the Department on 25 and 26 April 2007 and of his telephone call in response to his having received the letter dated 27 April 2007. It appears the Department has no records of his contact with the Department at these times and nor is his visa application lodged on 26 April 2007 available except for a copy of the first page of the application and a copy of a letter from the University of Sydney dated 17 April 2007 stating that Mr Chaudhary’s ‘M Phil’ thesis was currently being examined. Thus, for example, the Tribunal was unable to check the information provided by Mr Chaudhary to the counter officer in relation to payment of the application fee by credit card.
Mr Chaudhary produced a copy of the relevant statement for his everyday bank account and credit card. He said at that time in April 2007, he had four different bank accounts: an everyday account, a credit card account, a savings account and a joint account with his partner. He would transfer funds between the accounts as required via his computer. Mr Chaudhary’s recollection of what occurred in relation to his everyday account and credit card account was hazy, it being more than three and a half years since the events in question. He said that on the morning of 27 April 2007 he probably mistakenly transferred $3,100 out of his credit card account into his everyday account, later that day realised that he done so in error and immediately transferred $3,100 back into his credit card account.
Mr Chaudhary surmises that the Department probably tried to process his visa application fee on 27 April 2007 after he had transferred $3,100 out of his credit card account at a time when, as a result, the ‘debit’ balance in his account exceeded his credit card limit and the credit card provider therefore declined to process the transaction. Had the Department sought to process the application fee later that day, after Mr Chaudhary had transferred the $3,100 back into the account, the problem would presumably not have arisen.
Mr Chaudhary was subsequently granted a further subclass 574 visa on 4 September 2007. On 5 August 2008, Mr Chaudhary was granted a subclass 885 Skilled – Independent (permanent) visa.
On 28 September 2009, Mr Chaudhary passed the Citizenship test and on 16 April 2010, he lodged an application for citizenship by conferral. On 15 June 2010, a delegate of the Minister refused to approve Mr Chaudhary’s application for citizenship by conferral on the ground that he did not meet the residence requirements because he had been an unlawful non-citizen from 1 May to 7 May 2007. On 12 July 2010, Mr Chaudhary applied to the Tribunal for review of the decision of the delegate.

Relevant Legislation

Section 21(1) of the Australian Citizenship Act 2007 (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(2) states the general eligibility requirements:
(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 has completed relevant defence service (see section 23), at the time the person made the application; and
(d)understands the nature of an application under subsection (1); and
(e)possesses a basic knowledge of the English language; and
(f)has an adequate knowledge of Australia and of the responsibilities and privileges of Australian citizenship; and
(g)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
(h)is of good character at the time of the Minister's decision on the application.

The general residence requirement in s 22 provides relevantly:
22 General residence requirement
(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.
…
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 an unlawful non-citizen during that period.
(5)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 Mr Chaudhary’s case, the Department contends that he did not satisfy s 22(1)(b).
The 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.

The Instructions provide relevantly in respect of s 22(4A) and 22(5):
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 and is not limited to the actions by the Department. 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:
·the applicant may have been granted a permanent visa but the decision maker accidentally recorded the grant of a temporary visa in ICSE
·the applicant was advised by the Department that they were a lawful non-citizen when in fact they were unlawful
·the 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 the processing of the application does not constitute an administrative error in itself. …
Most cases of administrative error will require examination of client records relating to the relevant visa. …
The question for the Tribunal is whether by reason of an administrative error Mr Chaudhary was present in Australia as an unlawful non-citizen for the period 1 May to 7 May 2007.
At the Tribunal’s request, the Department provided a copy of its Procedures Advice Manual (PAM) 3: “GenGuideA” relating to the processing of a visa application fee. The Department states that while there is no specific advice on this matter, the PAM does provide advice on how a person should be notified in a case of application invalidity. This states:
46       NOTIFYING THE PERSON
46.1     Overview
Persons who make an invalid application should be informed in a timely manner that the application is not valid and given details of the requirement that has not been met.
Generally this can be done by phone or letter or, provided the client has consented to DIMA communication with the electronically, the client can be informed by electronic means. (However, if the application invalidity relates to the absence of a personal identifier – see section 29.3 Personal identifiers – for guidelines see MSI: Personal identifiers: Collection from visa applicants & non-citizens (except immigrations detainees). Officers should ensure that the applicant is aware that no consideration can be given to the application and alert them to any possible consequences regarding the ceasing of their current visa. …
46.2     Notifying the person in writing
A standard letter is available to officers electronically. Officers may tailor the letter to their needs to notify the persons that their visa application is invalid.
If the applicant can easily overcome the reason for the invalid application (but see section 47 Certain cases are to be treated as invalid), for example, the applicant had enclosed insufficient payment for the visa application charge or has failed to specify the visa class for which they are applying, it would be more appropriate to seek to resolve the situation by phone (or by electronic means if the client has given their consent).
The standard letter should be sent if none of these is possible because, for example, the applicant:
·cannot be contacted by phone
·cannot immediately provide the additional payment by use of credit card facilities over the phone
·cannot meet the requirement at all (for example if the onshore and have lodged an application for an offshore visa) or
·insists on lodging the application form at the counter despite having been counselled at the counter.

Mr Chaudhary’s Case

Mr Chaudhary contends that the departmental officer who received his application on 26 April 2007 made an administrative error by failing to process the fee payment while Mr Chaudhary was present at the counter as had happened on all previous occasions when he had lodged an application for renewal of his visa. Mr Chaudhary described the officer’s attitude as “nonchalant” despite Mr Chaudhary telling him that his then current visa would expire on 30 April 2007. Mr Jeans, who wrote to the Department on Mr Chaudhary’s behalf on 15 April 2010, noted that the officer did not receipt Mr Chaudhary’s application:
This is an error because he should not have accepted the form without also receiving the payment. This is bad administrative practice. It opens itself up to the type of problem that occurred in this case where there was a declined credit card payment.
Mr Chaudhary submitted that the concept of administrative error embraces a wide range of administrative actions and can include an administrative mistake of the kind that he contends was made by the departmental officer by failing to process the fee payment. Had the officer processed the fee payment while Mr Chaudhary was present, if payment had been declined by his credit card provider (which it probably would not have been on 26 April), then Mr Chaudhary could have paid the fee using EFTPOS which was what he first proposed to the counter officer before accepting the officer’s offer to allow Mr Chaudhary to pay by credit card instead. Mr Chaudhary said the failure to process the fee payment at the time the application was lodged compromised the application in the not uncommon event that the electronic payment were to fail, which can occur for a range of reasons. This was especially the case in circumstances where Mr Chaudhary had made known to the officer his concern over the imminent expiry of his visa on 30 April.
Mr Chaudhary also contends that the departmental officer who processed Mr Chaudhary’s application on 27 April 2007 made an administrative error by reason of his failure to notify Mr Chaudhary by phone or email (details of which were known to the Department) that his credit card provider had declined payment of the fee in circumstances when the officer should have been aware that there remained only one further business day before the expiry of the visa during which Mr Chaudhary could rectify this. The officer should have been aware that by instead writing to Mr Chaudhary, it was likely that there would be serious consequences for Mr Chaudhary by reason of his inability to rectify the problem before the expiry of his visa.

Having received a copy of the relevant provisions of the PAM relating to notification (set out above), Mr Chaudhary contended that he was not informed of the invalidity of his application in a timely manner as required by the PAM. He notes this was an issue of particular significance given that 27 April 2007 was the last working day of the week and the second last working day before his visa expired. Mr Chaudhary said he had provided the Department with his office telephone number, mobile phone number and email address, and it was incumbent on the Department to alert him to the possible consequences of the expiry of his visa, which it did not do. He submitted the departmental officer’s conduct was clearly not consistent with the PAM.

The Department’s Case

The Department contends that there was no administrative error on the part of departmental officers in this case. Mr Johnson, for the Department, said that the fact that Mr Chaudhary’s visa application was processed a day after lodgement does not give rise to any error. With regard to payment of the visa application fee, it is a matter for the applicant to ensure that payment of the fee would be processed in order to effect the required payment. There was no error in the Department writing to Mr Chaudhary to inform him that his credit payment had been declined. This was one of the methods recommended in the PAM for communicating with Mr Chaudhary. Mr Johnson submitted: “At its most basic, the PAM is no more than a procedural guideline to assist Departmental officers in the performance of the discharge of their statutory functions.” There was no imperative for the Department to telephone Mr Chaudhary about his credit card payment having been declined. The only error in this matter was that made by Mr Chaudhary in providing for a credit card payment that was declined.
Mr Johnson noted that pursuant to s 46(1) of the Migration Act 1958, an application for a visa is valid only if, among other things, “(c) any fees payable in respect of it under the regulations have been paid”. He referred the Tribunal to a number of decisions in which the term ‘administrative error’ has been discussed: Re Lai and Minister for Immigration and Ethnic Affairs (1987) 11 ALD 535 (Lai), Re Liu and Department of Immigration and Ethnic Affairs (1996) 41 ALD 589 (Liu) (followed in Re Al-Mughrabi and Secretary, Department of Immigration and Multicultural Affairs [1999] AATA 164), Minister for Immigration and Ethnic Affairs v Petrovski (1997) 73 FCR 303; [1997] FCA 154 (Petrovski), and Re Marasli and Minister for immigration and Multicultural and Indigenous Affairs [2003] AATA 1093 (Marasli), all of which concerned decisions under the (now repealed) Australian Citizenship Act 1948; and Goldie v Minister for Immigration and Multicultural Affairs (2002) 121 FCR 383; [2002] FCAFC 367 (Goldie), a decision on the meaning of the word ‘error’ in s 42A(10) of the Administrative Appeals Tribunal Act 1975 (the AAT Act). The meaning of ‘administrative error’ is discussed below.
Mr Johnson submitted that Mr Chaudhary’s mistake in not ensuring there were sufficient funds in his credit card account to enable the payment to be processed could not constitute an administrative error because the word ‘administrative’ qualifies the word ‘error’ by requiring that the error relate to the processing of the visa application. An administrative error could not, in this context, extend to actions on the part of the person who is seeking the exercise of the discretion.

Discussion

As stated above, the question for the Tribunal is whether by reason of an administrative error Mr Chaudhary was present in Australia as an unlawful non-citizen for the period 1 May to 7 May 2007. If there was such an error, then, pursuant to s 22(4A) of the Act, the Tribunal, standing in the shoes of the decision maker, has a discretion to disregard the period 1 May to 7 May 2007 when Mr Chaudhary was in Australia as an unlawful non-citizen for the purpose of s 22(1)(b).
The first issue is whether there was an ‘administrative error’ within the meaning of that term in s 22(4A). I have noted above those cases to which Mr Johnson referred him in which the Tribunal and the Federal Court considered the meaning of the term in the context of the now repealed Australian Citizenship Act 1948. Of those cases, I found the decision of Deputy President Purvis in Liu particularly useful. He said, at [26], referring to the decision in Lai:
This Tribunal would, with respect, agree that the examples of administrative error given by the Instructions are not comprehensive or exhaustive. They are not intended so to be. An "error" is defined in the Macquarie Dictionary as a deviation from accuracy or correctness, a mistake, and "administrative" as pertaining to administration; executive; administrative ability, problems etc. A decision as to status arrived at after considering relevant material, set aside on an application for review pursuant to an appeal process, is not a deviation from accuracy or correctness or a mistake pertaining to administration, to executive, to administrative ability or problems. The Australian Citizenship Instructions further state that "the delegated officer must in every case be satisfied that actual error on the part of administration has occurred." The use of the word "administration" here implies that the purpose of the section is to remedy an error made during the processing of an application in regard to a person's status ...
These remarks were also cited in Marasli, where, at [19], the Tribunal commented:
There must be something in the way the actual administration of the application is carried out that is erroneous, as was the case in Re Lai (above) where the department embarked on an unnecessary reprocessing of the application that delayed the stamping of the relevant passport with the permanent residence visa.
In Goldie, the Full Federal Court considered the meaning of the word ‘error’ in s 42A(10) of the AAT Act. Wilcox and Downes JJ concluded, at [35], that it was erroneous to place any limitation on the ‘error’ referred to in s 42A(10) by, for example, importing the word ‘administrative’ into the subsection. Carr J said, at [73] “I would construe the word ‘error’ as including administrative error but extending beyond mere administrative error.”
The Tribunal must first consider the ordinary meaning of the words ‘administrative error’ in the context in which they are used. Reference to extrinsic material can be for the purpose of confirming the ordinary meaning conveyed by the text of the provision taking into account its context, or to determine the meaning of the provision when its meaning is ambiguous or obscure, or if the ordinary meaning conveyed by the text of the provision taking into account its context and the purpose or object underlying the Act leads to a result that is manifestly absurd or unreasonable (s 15AB(1) of the Acts Interpretation Act 1901).
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.
It follows that I accept the Department’s submission that an applicant’s administrative error, such as Mr Chaudhary’s moving funds out of his credit card account by mistake so that his credit card provider declined payment of the visa fee, is not an administrative error of the kind contemplated by s 22(4A).
Was there such a mistake in Mr Chaudhary’s case and, if so, did this result in his being an unlawful non-citizen for the period 1 May to 7 May 2007? Mr Chaudhary contends that there were two administrative errors which led to that outcome. First, the departmental counter officer’s failure to process payment of Mr Chaudhary’s visa application fee while he was present on 26 April 2007 and, second, the failure of a departmental officer processing his application on 27 April 2007 to contact Mr Chaudhary by telephone or email to inform him that his credit card provider had declined payment of the application fee so that he could rectify this prior to the expiry of his visa.
In my view, the departmental counter officer’s failure to process payment of Mr Chaudhary’s visa application fee while he was present on 26 April 2007 was a mistake on the part of the officer. Mr Chaudhary’s evidence is that he told the officer of the impending expiry of his visa on 30 April 2007 and, given that there were only two business days before its expiry, the responsible course and good administrative practice would have been for the officer to at least process the application fee in Mr Chaudhary’s presence in case there were any glitches in procuring payment as, I agree with Mr Chaudhary, not uncommonly occurs with electronic transactions for a variety of reasons.
In my view, the counter officer having not processed payment of the application fee, it was an administrative error on the part of the departmental officer processing Mr Chaudhary’s application not to have contacted him by telephone or email when payment of the application fee was declined. It should have been obvious to this officer that to notify Mr Chaudhary by post of the payment having been declined, in circumstances where there was only one business day before the expiry of Mr Chaudhary’s visa, could have serious consequences for him because he might not receive the letter until after the then current visa had expired. The appropriate course for a responsible departmental officer, realising Mr Chaudhary’s situation, would have been to try and contact him by telephone or email, these contact details already being in the possession of the Department.
To have adopted this course would have been consistent with the PAM, at [46.2], quoted above, where an applicant might easily be able to overcome the reason for the credit card provider declining payment of the visa fee. In such a situation, serious consequences would flow from the expiry of the applicant’s visa, and it was more appropriate to seek to resolve the situation by phone or email, which in the circumstances was entirely possible.
I also note it appears that the departmental officer who attended Mr Chaudhary on 25 April 2007 may not have been correct in rejecting Mr Chaudhary’s application because of his failure to provide a ‘Confirmation of Enrolment’ given that Mr Chaudhary produced a letter from the University of Sydney dated 17 April 2007 confirming his status. However, I make no finding about this given the lack of information available to me about departmental requirements.
Did an administrative error lead to Mr Chaudhary being an unlawful non-citizen for the period 1 May to 7 May 2007? The answer to this question is, in my view, ‘yes’. I note that Mr Chaudhary impressed me as a conscientious person who wished to ensure that he had at all times the requisite visa enabling him to be in Australia lawfully. He admitted to having made a mistake on 27 April 2007 when transferring funds out his credit card account, a mistake that he rectified as soon as he became aware of it a little later that day. Having seen the statement for his everyday bank account for the relevant period, I am satisfied that he had the necessary funds to pay the visa application fee and, had he been aware of the mistake, he would have taken immediate steps to ensure that the fee was paid.
The failure by a departmental officer to try and contact Mr Chaudhary promptly by phone or email, contrary to the PAM, had very serious consequences for Mr Chaudhary and should be considered an administrative error. I am satisfied that the administrative error had the consequence that Mr Chaudhary was an unlawful non-citizen during the period 1 to 7 May 2007, and that the discretion in s 22(4A) of the Act should therefore be exercised to treat that period as one in which Mr Chaudhary was not present in Australia as an unlawful non-citizen. Thus, Mr Chaudhary satisfies the general residence requirement referred to in s 22(1)(b) of the Act.
It is appropriate to record my concern at the lack of relevant departmental records available on this review. I have not been provided with a full copy of the visa application (only the first page was provided) or a copy of the letter dated 27 April 2007 sent to Mr Chaudhary, and there is apparently no file record of Mr Chaudhary’s contact with the Department on 25 April, 26 April (other than the fact of the visa application having been received and date stamped 26 April 2007) or on about 1 May 2007 when he telephoned the Department having received the letter dated 27 April 2007.
The paucity of the departmental record does not sit well with the comment in the Instructions: “Most cases of administrative error will require examination of client records relating to the relevant visa.” Despite my request for the records referred to above, I was advised that they could not be located or, in the case of some file records, that they did not exist. Whilst I recognise that the Department is a large organisation handing a very large number of visa applications, my experience, for example, of superior record maintenance in Centrelink, also a very large organisation and making millions of decisions every year, suggests that the record‑keeping in Mr Chaudhary’s case was less than adequate.

Decision

The decision under review is set aside and the matter is remitted to the Department with the direction that the discretion in s 22(4A) of the Act should be exercised in favour of Mr Chaudhary to disregard the period 1 May to 7 May 2007 when he was an unlawful non-citizen in Australia. Mr Chaudhary therefore satisfies the general residence requirement referred to in s 22(1)(b) of the Act.

I certify that the 43 preceding paragraphs are a true copy of the reasons for the decision herein of Mr R P Handley, Deputy President.

Signed: ..............[sgd]..........................................................
A Veness, Associate

Date of Hearing:  17 November 2010
Date of Decision:  15 December 2010
Applicant representative:                   Self-represented

Respondent representative: Mr G L Johnson, DLA Phillips Fox