Daniel Todd v Minister for Immigration and Citizenship
[2011] AATA 851
•1 December 2011
[2011] AATA 851
Division GENERAL ADMINISTRATIVE DIVISION File Number
2011/1803
Re
Daniel Todd
APPLICANT
And
Minister for Immigration and Citizenship
RESPONDENT
DECISION
Tribunal Justice Downes, President
Date 1 December 2011 Place Sydney 1. Decision set aside.
2. Matter remitted for grant of citizenship.
.......................[sgd].................................................
Justice Downes, President
CATCHWORDS
CITIZENSHIP AND MIGRATION –bridging visas – visas ceasing to be in effect – departure and re-entry under substantive visa – bridging visa A not affected
LEGISLATION
Australian Citizenship Act 2007 (Cth) s 22
Migration Act 1958 (Cth) ss 5, 68, 82
CASES
Melhem and Minister for Immigration and Citizenship [2010] AATA 99
Pousti and Minister for Immigration and Citizenship [2011] AATA 456
Rais and Minister for Immigration and Citizenship [2011] AATA 44
Rogers and Minister for Immigration and Citizenship [2011] AATA 592
Visa Cancellation Applicant v Minister for Immigration and Citizenship [2011] AATA 690 Zamani and Minister for Immigration and Citizenship [2011] AATA 713Waaijer and Minister for Immigration and Citizenship [2010] AATA 913
REASONS FOR DECISION
Tribunal Justice Downes, President
Date 1 December 2011
Daniel Todd, a citizen of the United Kingdom, came to Australia in 2006 on a business (long stay) visa (subclass 457). The visa permitted him to leave Australia and re-enter. In October 2009 Mr Todd did just that. He was out of Australia for one week.
Shortly before leaving Australia Mr Todd applied for an employer nomination (residence) visa (subclass 856). That application automatically amounted also to a bridging visa application (subclass 010 Bridging A). The bridging visa was granted immediately to operate during any period between the expiry of the business visa and the making of a decision on the residence visa application.
By January 2011 Mr Todd had qualified for, and applied to become, an Australian citizen. The application was refused on the grounds that Mr Todd’s departure from Australia for one week had revoked his bridging visa, that there was a gap of 11 days in December 2009 between the expiry of the business visa and the granting of the residence visa, that Mr Todd had been an unlawful non-citizen for 11 days and that he was accordingly not entitled to citizenship. This decision was made notwithstanding the fact that his departure from Australia and return were lawful and in no way related to the grant of the bridging visa. However, it is said that Mr Todd’s lawful departure revoked the bridging visa and that when, two months later, his business visa lapsed he became, for the 11 day period, an unlawful non-citizen because the bridging visa did not support his residence in Australia during that period.
This decision was made notwithstanding the fact that the bridging visa was only to “come into effect” when the business visa ceased, so that it was not in effect at any time during Mr Todd’s trip, and the provision relied upon as revoking the visa only provided that a visa such as a bridging visa “ceases to be in effect if the holder leaves Australia” (Migration Act 1958 (Cth) s 82(8)).
Mr Todd was entitled to reside in Australia. While lawfully here he lawfully left and returned to Australia. He was subsequently granted a residence visa. In due course he became entitled to Australian citizenship. Yet he was denied that entitlement because of a suggested technical operation of the legislation. I am glad to say that I can see no substance in any technical or any other argument that the words of the Act caused the bridging visa to cease to be in effect or to prevent it from coming into effect. Nor can I see any argument that construing the legislation in its context leads to that result. I cannot even see any rational policy ground on which such a result could be based. Counsel for the Minister could not say what precise policy basis there might be, although he did assent to my proposition that there appeared to be some implied notion that persons present in Australia who are awaiting consideration of a visa application should wait here while the application is considered, in case, perhaps, they are required for interview. If there be such a policy, I cannot see how it could apply to a person who merely lawfully uses a permission, which the person already has, to leave and return.
The Minister relies on the following words in the notification of the visa:
A bridging visa has been granted to each of the applicants currently in Australia. This visa allows you to remain lawfully in Australia while the application is being processed. The bridging visa will only come into effect when any other visa you hold ceases and will remain in effect until 28 calendar days after you are notified of the decision on your application. The bridging visas will cease if you leave Australia. If you need to travel outside Australia while your application is being processed, please contact the department before you travel.
I cannot see how those words would warn someone in Mr Todd’s position, who held a visa which expressly permitted him to leave and return to Australia, to think that that right would be affected by his departure.
A primary goal of government decision-making is good government (Visa Cancellation Applicant v Minister for Immigration and Citizenship [2011] AATA 690 at [52] ff). The goal applies alike to primary decision-making and to decision-making in this Tribunal. I do not think the decision under review is an example of good decision-making. I regret to say that this is only one of a number of decisions of a like nature that have been made by the department. Unfortunately, some of those decisions have been upheld in this Tribunal; in most cases, however, without argument, or where the parties have accepted the asserted consequence (Pousti and Minister for Immigration and Citizenship [2011] AATA 456; Rais and Minister for Immigration and Citizenship [2011] AATA 44; Melhem and Minister for Immigration and Citizenship [2010] AATA 993; Waaijer and Minister for Immigration and Citizenship [2010] AATA 913). There are two decisions of the Tribunal which have rejected the Minister’s argument (Zamani and Minister for Immigration and Citizenship [2011] AATA 713; Rogers and Minister for Immigration and Citizenship [2011] AATA 592).
What surprises me most about the argument presented on behalf of the Minister is that it adopts a position that conduct authorised under one visa (namely departure and return) is said at the same time to be disqualifying conduct which causes the termination of another visa. It would never be good administration for a Minister to authorise activity on the one hand and to penalise a person who takes advantage of the authorisation on the other.
The Minister’s representatives presented a number of unconvincing arguments in support of the decision under review. However, notwithstanding this lack of persuasiveness, I should deal with them.
There is, of course, no doubt that persons present in Australia as unlawful non-citizens during the four year period immediately prior to an application for citizenship fail to satisfy the residency requirement for citizenship (Australian Citizenship Act 2007 (Cth) s 22). The question is whether Mr Todd ever was an “unlawful non-citizen”. If he was, he may also have undertaken other unlawful activity such as continuing in employment. One would not, accordingly, readily find a resident otherwise with a valid visa to be an unlawful non-citizen unless the position was clear.
The Minister relies particularly on s 68 of the Migration Act:
When visa is in effect
(1) Subject to subsection (2), a visa has effect as soon as it is granted.
(2)A visa may provide that it comes into effect at the beginning of a day, being a day after its grant:
(a) specified in the visa; or
(b) when an event, specified in the visa, happens.
(3) A visa can only be in effect during the visa period for the visa.
(4)A bridging visa (the reactivated bridging visa), held by a non-citizen, that has ceased to be in effect under subsection 82(3), will come into effect again during the visa period for the visa if:
(a)the non-citizen does not hold a substantive visa that is in effect; and
(b)either:
(i) the non-citizen does not hold any other bridging visa; or
(ii)the reactivated bridging visa is determined, in accordance with the regulations, to be the most beneficial of the bridging visas held by the applicant.
The Minister also relies upon the definition of “visa period” in s 5
visa period, in relation to a visa, means the period:
(a) beginning when the visa is granted; and
(b) ending:
(i)in the case of a visa other than a bridging visa – when the visa ceases to be in effect; or
(ii)in the case of a bridging visa – when the visa ceases to be in effect otherwise than under subsection 82(3).
Finally, the Minister relies upon certain parts of s 82:
When visas cease to be in effect
(1)A visa that is cancelled ceases to be in effect on cancellation.
…
(3)A bridging visa held by a non-citizen ceases to be in effect if another visa (other than a special purpose visa or a maritime crew visa) for the non-citizen comes into effect.
…
(8)A visa to remain in, but not re-enter, Australia that is granted to a non-citizen in Australia ceases to be in effect if the holder leaves Australia.
It is clear that if a person, whose right to remain in Australia depends on a bridging visa of the class in question in this case, namely a bridging visa A, departs Australia, the visa, which will not permit re-entry, ceases to be in effect (s 82(8)). This means the visa period comes to an end and the visa can no longer later come into effect. However, Mr Todd’s departure and return and his presence in Australia before and after his trip had no reference to his bridging visa.
Counsel for the Minister mounted an elaborate argument that if leaving Australia did not cancel a bridging visa in cases such as the present, the visa could lie dormant, virtually perpetually. Such a consequence, if it occurs, is not, to my mind, based upon any departure from Australia, but simply upon the effect of the visa. The argument seems to be that visas must come into effect on grant for some purposes, such as to be subject to the operation of s 82(8), because otherwise the visa might be open ended. Assistance for this construction is sought from the definition of “visa period”, which provides that the visa period begins when the visa is granted and that a visa can only be in effect during the visa period (s 68(3)). However, rather than compelling the visa period to be co-extensive with the period of effect of the visa, the Act seems to me to provide that a visa may cease to be in effect before the visa period ends, although it cannot survive its end.
The ultimate argument is that a bridging visa must always come to an end when a substantive visa is granted (s 82(3)) or some other event occurs which would bring the visa to an end if it was otherwise in effect (eg s 82(8)). A bridging visa will be subject to this consequence from the date of grant, because that is when the visa period begins (s 5 “visa period”(b)(ii)). This argument seems to me to be altogether too technical to stand against the simple words of the Act, particularly when the consequence of the argument, as this case shows, seems to me to be much more adverse than the consequence postulated on behalf of the Minister. After all, a bridging visa is just that. It is very likely to come to an end quickly, usually because the substantive visa which it anticipates either is or is not granted. The circumstance that may lead to its having a longer life is not departure from Australia, but grant of a new substantive visa before the old substantive visa expires. That problem does not, however, depend upon any departure from Australia and is quite independent of it. The argument also appears to ignore the fact that a visa can be cancelled. When cancelled it “ceases to be in effect” (s 82(1)), but cancellation must also prevent it from coming into effect. The sub-section speaks specifically of cancellation, whereas the sub-section relied on in the present case speaks only of a visa ceasing to be in effect (s 82(8)).
The Minister’s apparent additional argument that “in effect” in s 82(8) in the Act means “capable of coming into effect” as well as “in effect” is simply not sustainable either as a matter of literal meaning or as a matter of meaning determined from purpose and context.
The decision will be set aside and the matter remitted for the grant of citizenship.
I certify that the preceding eighteen (18) numbered paragraphs are a true copy of the reasons for decision herein of the Honourable Justice Downes, President.
S. Robson, Associate:
Dated: 1 December 2011
Date of hearing 14 November 2011 Date final submissions received 15 November 2011 Counsel for the Applicant Mr S Lloyd SC with Ms V Bosnjak Solicitors for the Applicant Fragomen Global Counsel for the Respondent Mr J.A.C Potts Solicitors for the Respondent Clayton Utz
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