Chinonye Adediran and Minister for Immigration and Citizenship
[2013] AATA 482
[2013] AATA 482
Division GENERAL ADMINISTRATIVE DIVISION File Number(s)
2012/5216
Re
Chinonye Adediran
APPLICANT
And
Minister for Immigration and Citizenship
RESPONDENT
DECISION
Tribunal Ms A F Cunningham (Senior Member)
Date 10 July 2013 Place Hobart The decision under review is set aside and the matter remitted to the Minister for Immigration and Citizenship to assess the remaining eligibility criteria for citizenship with the direction that Ms Adediran satisfies the general residence requirement in section 22(1) of the Australian Citizenship Act 2007.
[Sgd Ms A F Cunningham]
Ms A F Cunningham (Senior Member)
IMMIGRATION AND CITIZENSHIP – application for citizenship by conferral – residence requirements not met on the basis applicant in Australia as unlawful non-citizen for six days, Ministerial discretion - whether administrative error – visa lodgement procedure not fully explained – reason for unlawful residence period – discretion exercised – decision under review set aside
Australian Citizenship Act 2007, ss 3, 21(2)(c), 22(1), 22(4A), 24
Migration Act 1958, s 5, 13(1), 14
Australian Citizenship Instructions, 5.16
MacDonald and Minister for Immigration and Citizenship [2012] AATA 733
Rogers and Minister for Immigration and Citizenship [2011] AATA 592
REASONS FOR DECISION
Ms A F Cunningham (Senior Member)
Ms Adediran has applied to the Tribunal for a review of a decision of a Delegate of the Minister for Immigration and Citizenship (the Minister) to refuse her application for Australian citizenship by conferral. The reason for refusal was that she did not meet the residence requirements in that she was in Australia as an unlawful non-citizen between 28 January 2011 and 2 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
Ms Adediran was born in Nigeria and first arrived in Australia on 09/02/2006. On 27 January 2011 her Subclass 457 - Business (Long stay) visa expired. Three days later, on 30 January 2011 Ms Adediran lodged an application for a Subclass 857 - Regional Sponsored Migration Scheme visa.
As a consequence of her application for the Subclass 857 visa, Ms Adediran was granted a bridging visa on 2 February 2011 which remained in effect until she was granted the Subclass 857 visa on 17 June 2011.
On July 2012, Ms Adediran lodged an application for Australian citizenship by conferral. Her application was refused by a Delegate of the Minister on 29 October 2012 on the basis that she did not meet the general residence requirement in section 21(2)(c) of the Australian Citizenship Act 2007 (the Act) in that she was in Australia as an unlawful non-citizen during the four-year period immediately prior to the date of her application.
Ms Adediran said that she was aware of the date of expiration of her 457 visa. She said that as early as October 2010 she had requested her employer, Calvary Health Care to lodge her nomination with the Department of Immigration and Citizenship. She understood that her employer had been busy and she was concerned about the delay and the effect on her residency status. Because she was concerned that her visa would expire before the employer nomination had been received, Ms Adediran went to the offices of the Department of Immigration and Citizenship for advice in mid-January 2011.
It was Ms Adediran’s evidence that at this meeting she was informed by a Departmental officer that her employer's application must be received prior to the expiration of her visa. During her evidence Ms Adediran used the words “nomination” and “application” interchangeably but when questioned seemed to understand the meaning of each term. She said that it was her understanding following her consultation with the Departmental officer, that provided her employer's nomination was received prior to the expiration of her visa, she would retain her legal residency status in Australia.
Following her meeting with the Departmental officer, Ms Adediran said that she "intensified her discussion with her employer" to ensure that the nomination was received by the Department prior to 27 January 2011. She said that her employer offered to post the nomination to the Department of Economic Development however Ms Adediran decided to personally deliver the document to ensure that it was received prior to the expiration of her visa.
Ms Adediran was consequently surprised to receive a telephone call from a Departmental officer on around 28 January 2011 informing her that she was an illegal resident as her visa had expired on 27 January 2011. The Departmental officer confirmed that Ms Adediran’s employer’s nomination had been received on 24 January 2011 however advised that Ms Adediran was required to submit her own application prior to the expiration of her visa on 27 January 2011.
Following the submission of her application for an 857 Permanent Residency visa Ms Adediran received a letter from the Department requesting that she explain the circumstances in which her earlier visa had expired. After providing the explanation her application for an 857 visa was approved. After approximately one year she lodged an application for citizenship and was subsequently informed that her application had been unsuccessful on the basis that she had been an illegal resident for a period of time during the four years immediately preceding her application.
Ms Adediran subsequently lodged a Freedom of Information request for the following documents:
"Documentation of evidence of my visits and enquiries I made @ the Immigration Office in Hobart Tasmania as well is the responses given to me between 1/7 2010 and 30/01/2011".
One document was released which contained the following:
"Applicant fronted counter 19/1/11 advising they are in the process of lodging a regional sponsored visa via the Department of Economic Development. Advised the applicant that as their 457visa ceases 27/1/11 they would need to lodge the application prior to this date. Recommended applicant advise the Depart of E & D to lodge this visa application (if they are doing so on a/n's behalf) prior to the 27/1/11."
APPLICANT'S CASE
It was the applicant's argument that she understood from the conversation that she had had with the Department officer on 19 January 2011, that provided her employer lodged an application prior to the expiration of her visa on 27 January 2011, she would retain her legal residency status pending the lodgement of her application which she understood could be submitted sometime thereafter.
RESPONDENT'S CASE
Mr Kikkert on behalf of the respondent, submitted that Ms Adediran’s status as an unlawful non-citizen for a six-day period from 28 January 2011 until she was granted a bridging visa on 2 February 2011, was not due to an administrative error made by the Department. It was instead due to Ms Adediran’s incorrect understanding of the information provided to her by the Department. He further noted that in correspondence Ms Adediran had acknowledged her personal responsibility for the delay in applying for another visa.
Mr Kikkert submitted that the file note released pursuant to the Freedom of Information request does not reveal administrative error on the part of the Department and it is apparent from the file note, that Ms Adediran was advised that she would need to lodge her application prior to the expiration of the 457 visa. Mr Kikkert contended that the file note does not give any basis for an understanding that a nomination by an employer could be considered a defacto application in respect of an applicant.
LEGISLATION
Ms Adediran’s application for Australian citizenship was made pursuant to Subdivision B of the Act "citizenship by conferral". Under section 24, the Minister must approve or refuse to approve the application, but must not grant approval unless the person is eligible to become an Australian citizen under one of the relevant subsections of section 21.
Subsection 21(2)(c) requires that an applicant for Australian citizenship either satisfy the general residence requirement, the special residence requirement or the defence service residence requirement at the time of application. Only the general residence requirement is relevant to the applicant's case. The general residence requirement provisions are set out in section 22, subsection 1 of which relevantly provides:
(1) Subject to this section, for the purposes of section 21 a person satisfies the general residence requirement if:
The person was present in Australia for the period of 4 years immediately before the day the person made the application; and
The person was not present in Australia as an unlawful non-citizen at any time during that 4 year period; and
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 3 of the Act provides that "unlawful non-citizen" has the same meaning as in the Migration Act 1958. Section 5 of the Migration Act 1958 defines “unlawful non-citizens” by reference to section 14 which in turn provides that a non-citizen in the migration zone who is not a lawful non-citizen is an unlawful noncitizen. Section 13(1) states that a lawful non-citizen is a non-citizen in the migration zone who holds a visa that is "in effect".
Subsection 22(4A) provides for a Ministerial discretion on the basis of administrative error and reads as follows:
“(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”.
The Tribunal was referred to the Australian Citizenship Instructions (Instructions) with respect to the exercise of the discretion to treat a period as one in which a person was not present as an unlawful non-citizen. Specifically paragraph 5.16 of the Instructions which state:
"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. 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”.
CONSIDERATION
There was no issue as to Ms Adediran’s identity or that she met the qualification provisions of subsection 21(2). The basis for the rejection of her application for citizenship was that she failed to satisfy the general residence requirement in that she was present in Australia as an unlawful citizen for a period of six days during the four-year period that immediately preceded her application.
Ms Adediran does not dispute these findings but contends that a ministerial discretion should be exercised in her case on the basis that she was provided with incorrect information by the Department regarding the requirements for the lodgement of her 857 visa application. Ms Adediran contends that her unlawful residence in Australia for a period of six days between the expiration of her subclass 457 visa and lodgement of her application for a Subclass 857 visa, is a direct consequence of the incorrect information provided. Ms Adediran maintains that the Departmental officer informed her that provided the employer’s application was received prior to the expiration of her 457 visa, her legal status would be preserved.
The issues for the Tribunal to determine are firstly, the nature of the advice given to Ms Adediran on the occasion when she attended the offices of the Department of Immigration and Citizenship to enquire about her visa application; secondly, whether the advice constitutes administrative error within the meaning of subsection 22(4A) of the Act; thirdly, whether that advice was the cause of her unlawful non-citizen status during the relevant period; and fourthly, whether the discretion should be exercised in Ms Adediran’s favour;
The meaning of "administrative error" has been considered by the Tribunal in a number of recent decisions. Deputy President Handley in MacDonald and Minister for Immigration and Citizenship [2012] AATA 733 considered the submissions made on behalf of the Department that the word should be interpreted as meaning an error made by the Department in performing its administrative functions and referred to a number of other authorities that had considered the meaning of this phrase. The Deputy President referred to Deputy President Jarvis’ consideration in Rogers and Minister for Immigration and Citizenship (2011) AATA 592 where he said at paragraph 39:
"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 the Department’s communication is incomplete, internally inconsistent, inexact or in accurate, this of itself might well constitute an administrative error within the meaning of S 22 (4A)."
Deputy President Handley accepted Mr MacDonald’s evidence that he was provided with no information about the terms of the visa he was granted at Glasgow Airport and that nothing evidencing the grant of the visa had been entered in his passport. He was not informed and did not know that he had been granted a visa that was valid for only three months. Although it was an airline official at the Glasgow Airport who had assisted Mr MacDonald in obtaining his ETA, the Deputy President considered that the Department was ultimately responsible for not ensuring that Mr MacDonald was properly informed of the terms of his visa which constituted an administrative error. The Deputy President did not consider that it was unreasonable for Mr MacDonald not to realise in circumstances where he had been a permanent resident of Australia for 40 years that the visa he had been granted was only of limited duration.
At paragraph 34 Deputy President Handley stated”
“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 e-mail explaining the conditions of their ETA”.
The Departmental file note which was disclosed in accordance with Ms Adediran’s Freedom of Information request records that she attended the office on 19 January 2011 and advised that she was in the process of lodging a regional sponsored visa via the Department of Economic Development. The note goes on to state that Ms Adediran was advised that as her 457 visa would expire on 27 January 2011 the application needed to be lodged prior to that date. The note stated: "Recommended applicant advise the Depart of E and D to lodge this visa application (if they are doing so on a/n's behalf) prior to the 27/1/11”.
Mr Kikkert sought leave to seek further instructions with respect to the concluding sentence in the note. He subsequently informed the Tribunal that a regional sponsored visa application can be lodged by the applicant's employer on the applicant’s behalf.
As I have noted above, although Ms Adediran said that she understood the distinction she referred to the terms “nomination” and “application” interchangeably. It was her evidence that following her consultation with the Departmental officer on 19 January 2011, she understood that provided an application was lodged by her employer prior to the expiration of her visa, she was able to lodge her application at a subsequent date and she would still remain a lawful resident.
The file note recording the contents of the discussion with Ms Adediran on 19 January 2011 is very brief but accords with her evidence that she attended for advice with regard to the lodgement of the visa application shortly prior to its expiration. She said that she was concerned because despite her several approaches to her employer several months earlier, her employer had still not lodged the required nomination in support of the visa application. She was aware of the cessation date of her 457 visa and was enquiring about the process to ensure that she remained a lawful resident. Ms Adediran said that she was not aware that both the employer's nomination and her application were required to be submitted before the expiration of her visa on 27 January 2011.
It was Ms Adediran’s understanding following her enquiry of the Department for Immigration and Citizenship that it was imperative for her employer to lodge the nomination prior to the expiration date of her visa. She did not seem to be aware that it was open to the employer, ie the Department of Economic Development to lodge her visa application on her behalf. The file note only refers to the lodgement of the visa application and does not record any advice regarding the lodgement of the employer's nomination. Yet this was the reason stated by Ms Adediran for her visit to the Department on the 19 January 2011. Ms Adediran was familiar with the sponsored migration visa program and the requirement for the employer nomination to be lodged in support of her visa application.
Whilst there is provision for an employer to lodge a regional sponsored migration application on behalf of an employee, Ms Adediran was not aware of this and thus would not have been seeking such advice at her meeting on 19 January 2011. The information sought was with respect to the lodgement of her employer's nomination however there is no written record of what advice she was given on this issue.
Included in the T Documents was a copy of a letter written to the Department of Immigration and Citizenship dated 20 May 2011 from Calvary Healthcare Tasmania Ltd in which it is stated that they had contacted the Department of Immigration general enquiries telephone service on 2/12/2010, 23/12/2010 and in early 2011 and were advised of the requirement to submit a Form 1054, however no advice was given regarding the mandatory requirement for Ms Adediran to submit a form 857. The letter concludes by stating that they believed the visa expiry "was a result of communication barriers between all parties regarding documentation requirements".
It is apparent that Ms Adediran’s failure to lodge her application for an 857 visa within the required timeframe, that is by 27 January 2011, arose solely because of her misunderstanding of the advice that she sought and received from a Departmental officer on 19 January 2011. It is clear that she was concerned that her employer had delayed the preparation of the nomination in support of the visa application and she sought advice as to the consequences if the nomination was not received prior to the expiration of her 457 visa. The note records that she was advised that the employer must lodge the visa application prior to the 27 January 2011. Mr Kikkert informed the Tribunal that this advice related to the visa application and not the employer nomination. However Ms Adediran was not aware that her employer could lodge her visa application on her behalf. It is thus reasonable to conclude that Ms Adediran understood that this advice related to the employer nomination rather than the visa application itself. Also of relevance is Ms Adediran’s reference to the word “application” on several occasions during the course of her evidence when she was in fact referring to the employer “nomination”. This confusion was evident to the Tribunal and it is surprising that the Departmental officer was not also aware of Ms Adediran’s failure to distinguish an “application” from a “nomination”.
In this context I refer to the statement of Deputy President Jarvis in the Rogers decision outlined above at paragraph 22. I consider that in this case the Department failed to provide the advice sought by Ms Adediran. The advice provided was with respect to the lodgement of a visa application by the employer on behalf of Ms Adediran.
The Immigration Instructions note that the concept of administrative error embraces a range of administrative actions and extends to administrative mistakes in circumstances in which incorrect information is provided and further, that each case needs to be assessed on its own merits. In the present case there is no specific evidence of an administrative mistake or incorrect information. I find that the information provided as evidenced by the Departmental file note and Ms Adediran’s own evidence was however, unclear and did not accurately respond to the advice sought by Ms Adediran.
Given the significant consequences of the failure to lodge a further visa application prior to the expiration of the current visa, I consider that it was incumbent upon the Department to ensure that Ms Adediran fully understood the lodgement requirements both for the employer nomination and her own application. This was the very reason for her attendance at the Department’s offices on 19 January 2011. Ms Adediran left the office with an incorrect understanding of the application requirements and the requisite timeframe. I consider that this could have been avoided if the procedure had been fully explained and Ms Adediran’s understanding of the advice given checked and confirmed by the Departmental officer. Ms Adediran’s knowledge and understanding of the English language appeared to be reasonable during the course of her evidence. I am satisfied that if the procedure had been explained in more detail and clear guidance provided, Ms Adediran’s consequential unlawful residence for a six-day period would have been avoided. As Deputy President Jarvis noted, the requirements of the Migration Act and Regulations are somewhat complex and unknown to the applicants unless carefully explained.
The communication that Ms Adediran received on 19 January 2011 in response to her request for advice as to the procedure for lodgement of her employer’s nomination and her own application was in my opinion incomplete and misleading. As such I am satisfied that it constituted administrative error within the meaning of section 22 (4A) of the Act. The administrative error was the reason Ms Adediran became an unlawful resident for the six-day period from 28 January 2011 until 2 February 2011 when she was granted a bridging visa. This rendered her ineligible for citizenship under section 22(1) of the Act. Ms Adediran did not deliberately violate Australian Immigration Law in fact she took all reasonable steps to ensure that her 857 visa application would be lodged within the requisite timeframe prior to the expiration of her 457 visa. I find that in the circumstances it is reasonable to exercise the Ministerial discretion available pursuant to section 22(4A) of the Act.
For the above reasons the decision under review is set aside and the matter remitted to the Minister for Immigration and Citizenship to assess the remaining eligibility criteria for citizenship with the direction that Ms Adediran satisfies the general residence requirement in section 22(1) of the Australian Citizenship Act 2007.
I certify that the preceding 37 (thirty -seven) paragraphs are a true copy of the reasons for the decision herein of Ms A F Cunningham (Senior Member) [Sgd]
Associate
Dated : 10 July 2013
Date(s) of hearing 17 June 2013 Solicitor for the Applicant Applicant on her own behalf
Solicitor for the Respondent Mr S Kikkert, In-House Litigation Section, Department of Immigration and Citizenship
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