Donnelly and Minister for Immigration and Border Protection (Citizenship)
[2016] AATA 752
•28 September 2016
Donnelly and Minister for Immigration and Border Protection (Citizenship) [2016] AATA 752 (28 September 2016)
Division
GENERAL DIVISION
File Number
2015/5732
Re
Dr Cyril Donnelly
APPLICANT
And
Minister for Immigration and Border Protection
RESPONDENT
DECISION
Tribunal Brigadier AG Warner, Member
Date 28 September 2016 Place Perth The Tribunal affirms the decision under review.
..........[Sgd]..............................................................
Brigadier AG Warner, Member
CATCHWORDS
IMMIGRATION AND CITIZENSHIP – citizenship – application for Australian citizenship by conferral – application refused – period as unlawful non-citizen – whether administrative error caused period as unlawful non-citizen – administrative error not established – discretion-administrative error not enlivened – general residence requirement not satisfied – decision under review affirmed
LEGISLATION
Australian Citizenship Act 2007 – s 21(2)(c) – s 21(2)(h) – s 22 - s 22A(1)(a)(i) – s 22B – s 22B(1)(a) – s 22B(1)(g) – s 22B(5) – s 22C(3)
Migration Act 1958 – s 14 – s 82(7)
University of Western Australia Act 1911 (WA)
CASES
Chaudhary and Minister for Immigration and Citizenship (2010) 119 ALD 632; (2010) 53 AAR 561; [2010] AATA 1006
Melhem and Minister for Immigration and Citizenship [2010] AATA 993
Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634; [1979] AATA 179
Re Liu and Department of Immigration and Ethnic Affairs (1996) 41 ALD 589; (1996) 22 AAR 381
SECONDARY MATERIALS
Citizenship Policy (effective 1 June 2016)
REASONS FOR DECISION
Brigadier AG Warner, Member
28 September 2016
INTRODUCTION
On 2 September 2015, a delegate of the Minister for Immigration and Border Protection refused to grant Dr Donnelly Australian citizenship. The delegate found that Dr Donnelly did not satisfy the general residence requirements in the Australian Citizenship Act 2007 (the Citizenship Act) because he had been outside Australia for more than 90 days in the last year, had been outside Australia for more than 12 months in the last 4 years, and was not lawfully resident in Australia for all of the last 4 years. The delegate also stated that there was no evidence that Dr Donnelly satisfied the special residence requirements or had completed relevant defence service. The delegate noted that Dr Donnelly’s current period of lawful residence in Australia commenced on 18 March 2013 (T2/8-9).
On 27 October 2015, the Tribunal granted Dr Donnelly an extension of time to 3 November 2015 to apply for review of the delegate’s decision dated 2 September 2015 (ST18/259).
On 3 November 2015, Dr Donnelly applied to the Tribunal for review of the delegate’s decision, stating his reasons for seeking review as:
1. The information provided was not appropriately taken into account. I feel I clearly documented my work related travel as an internationally recognised academic. I therefore should have been approved for special residence requirements.
2. A different decision (special consideration) should be made regarding my period of unlawfulness. The reason I did not hold a valid visa for three months was due to an unfortunate administrative error between the University supporting my application and the Australian immigration department. I have attached letters of support from HR and my supervisor (T1/2).
BACKGROUND
Dr Donnelly was born in 1981 and is a citizen of Canada. He first arrived in Australia on a tourist visa in 2007 and has frequently departed and re-entered Australia since then (ST25/273-276).
On 17 December 2010, Dr Donnelly was granted a Class UC Temporary Business Entry (Subclass 457) visa (the first 457 visa), valid 17 December 2010 to 9 January 2013, on the basis of a nomination lodged by the University of Western Australia (UWA) on 30 November 2010 and approved on 2 December 2013 in respect of a position of University Lecturer (ST6/197, ST19/260, 262).
On 18 December 2012, UWA lodged a second nomination in respect of a position of University Lecturer, and the Department of Immigration and Border Protection (DIBP) approved this nomination on 19 December 2012 (ST22/265).
On 9 January 2013, Dr Donnelly re-entered Australia on the first 457 visa. At midnight that night of 9 January 2013 Dr Donnelly’s first 457 visa ceased and he became an unlawful non-citizen within the meaning of s 14 of the Migration Act 1958 (the Migration Act).
On 18 March 2013, Dr Donnelly lodged an application for a 457 visa and was granted a bridging visa. In his application documents, Dr Donnelly advised that he only became aware of his unlawful non-citizen status on 15 March 2013 (ST9/236-237).
On 2 April 2013, Dr Donnelly was granted a 457 visa (the second 457 visa).
On 22 January 2014, Dr Donnelly was granted an Employer Nomination Scheme (Subclass 186) permanent visa (ST19/261).
On 22 May 2015, Dr Donnelly lodged an application for Australian citizenship by conferral (T5/107).
On 2 September 2015, a delegate of the Minister refused to grant Dr Donnelly Australian citizenship.
ISSUES
The relevant issues before the Tribunal are:
·Did Dr Donnelly meet the general residence requirements in s 22 of the Citizenship Act at the time of his application for Australian citizenship;
·Did Dr Donnelly meet the special residence requirement in s 22B of the Citizenship Act regarding work requiring regular travel outside Australia; and
·Was Dr Donnelly present in Australia during a relevant period but, because of an administrative error, was an unlawful non-citizen during that period, and if so should the discretion in s 22B(5) of the Citizenship Act be exercised.
RELEVANT LEGISLATION AND POLICY
Section 21(2)(c) of the Citizenship Act relevantly provides:
(2)A person is eligible to become an Australian citizen if the Minister is satisfied that the person:
…
(c) satisfies the general residence requirement (see section 22) or the special residence requirement (see section 22A or 22B), or satisfies the defence service requirement (see section 23), at the time the person made the application;
…
Section 22 of the Citizenship Act (reproduced at T3, p17 – 20) sets out the general residence requirement.
Section 22B(1) of the Citizenship Act provides:
22B Special residence requirement – persons engaged in particular kinds of work requiring regular travel outside Australia
(1)Subject to this section, for the purpose of section 21 a person satisfies the special residence requirement if:
(a) at the time the person made the application, the person is engaged in work of a kind specified under subsection 22C(3) and the person is required to regularly travel outside Australia because of that work; and
(b) the following apply;
(i) the person was engaged in that kind of work for a total of at least 2 years during the period of 4 years immediately before the day the person made the application;
(ii) for the whole or part of that 4 year period when the person was engaged in that kind of work, the person regularly travelled outside Australia because of that work; and
(c) the person was present in Australia for a total of at least 480 days during the period of 4 years immediately before the day the person made the application; and
(d) the person was present in Australia for a total of at least 120 days during the period of 12 months immediately before the day the person made the application; and
(e) the person was ordinarily resident in Australia throughout the period of 4 years immediately before the day the person made the application; and
(f) the person was a permanent resident for the period of 12 months immediately before the day the person made the application; and
(g) the person was not present in Australia as an unlawful non-citizen at any time during the period of 4 years immediately before the day the person made the application.
Section 22C(3) of the Citizenship Act provides that the Minister may, by legislative instrument, specify kinds of work for the purposes of paragraph 22B(1)(a) of the Citizenship Act.
Legislative Instrument IMMI13/056 (Schedule A – Activities Specified for the Purposes of Subparagraph 22A(1)(a)(i) of the Act), a copy of which is attached to Exhibit R1, sets out the kinds of work specified under s 22C(3), and relevantly states at item 1(f) to Schedule C:
1The kinds of work are those undertaken as part of their duties in which a person is:
…
(f) a Scientist employed by:
(i) an Australian university who has attained a PhD in their field of speciality and is undertaking research and development of benefit to Australia;…
Citizenship Policy
DIBP has developed policy in the form of the Citizenship Policy (the Policy) to support the Act. The Policy replaced the Australian Citizenship Instructions from 1 June 2016.
Decision-makers should generally apply the guidance contained in documents such as the Policy unless such application is unlawful or its application produces an unjust result in the circumstances of a particular case: Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634; [1979] AATA 179. The Tribunal considers that there are no cogent reasons why it should not have regard to the Policy in this matter.
EVIDENCE
The Tribunal had before it the following evidence:
·The “T Documents” (T1-7, pp 1-157);
·Supplementary “T Documents” (ST1-27, pp158-282);
·Cyril J Donnelly email dated 11 March 2016, including attachments, total of 46 pages (Exhibit A1);
·UWA Letter – Professor Timothy Ackland dated 23 June 2016 (Exhibit A2);
·Respondent’s Statement of Facts, Issues and Contentions dated 8 April 2016 (Exhibit R1); and
·The oral evidence of the applicant.
CONSIDERATION
The respondent’s written submission to the Tribunal dated 8 April 2016 contains the following summary of the respondent’s assessment of Dr Donnelly’s position at the time of his application for Australian citizenship:
28.Having regard to the material provided by the applicant, and item (f)(i) of Schedule C to IMMI13/056, the minister accepts that at the time of his application for Australian citizenship the applicant:
28.1. was engaged in work of the kind specified under subsection 22C(3) of the Citizenship Act (namely the work set out in item 1(f) of Schedule C to IMMI13/056) and therefore satisfied part of s 22B (1)(a);
28.2. was engaged in that work for at least 2 years during the 4 years before 22 May 2015 and therefore satisfied s 22B(1)(b)(i); and
28.3 Satisfied s 22B(1)(c) to (f) of the Citizenship Act.
29. However, the Minister does not accept that:
29.1. the applicant was ‘required to regularly travel outside Australia because of’ his work (s 22B(1)(a));
29.2. that during the whole or part of the 4 year period when he was engaged in work specified under s 22C(3), he regularly travelled outside Australia because of that work (s 22B(1)(b)(ii); or
29.3. that the applicant satisfies s 22B(1)(g) (Exhibit R1 paras 28-29).
At the start of the hearing the respondent submitted that, as a consequence of the receipt and consideration of further evidence (Exhibit A2) addressing Dr Donnelly’s qualifications and travel being a requirement of his work, the assessment in the preceding paragraph had been revised. In referring to Exhibit A1, the respondent submitted:
Having reviewed that, my client’s instructions are that we accept that he meets those aspects of the section 22B discretion. So as you say it is really just an issue as to whether there is an administrative error and if so whether that discretion in section 22B(5) should be exercised to excuse what I think is an agreed period of unlawful non-citizenship, non-residence period by the applicant.
Section 22B(1)(g) of the Citizenship Act provides that, in order to satisfy the s 22B special residence requirement, the following must be satisfied:
(g) the person was not present in Australia as an unlawful non-citizen at any time during the period of 4 years immediately before the day the person made the application.
The relevant four year period for Dr Donnelly was 22 May 2011 to 22 May 2015. Dr Donnelly’s first visa was valid until 9 January 2013 (ST19/260) and he was not granted another visa (a bridging visa) until 18 March 2013 (ST19/260). The evidence before the Tribunal shows, and the parties do not disagree, that pursuant to the definitions of unlawful non-citizen set out in s 4 of the Citizenship Act and ss 13 and 14 of the Migration Act, Dr Donnelly was an unlawful non-citizen during that part of the relevant four year period 10 January 2013 to 18 March 2013 because he did not hold a valid visa.
Section 22B(5) of the Citizenship Act details that:
For the purposes of paragraph (1)(g) of (1A)(f), 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 following relevant policy guidance on the concept of ‘administrative error’ is contained in pages 27-28 of the Policy:
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, some examples include:
·the applicant may have been granted a permanent visa but the decision maker accidentally recorded the grant of a temporary visa on the department’s system.
·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 processing an application does not constitute an administrative error in itself. Where an adverse decision on an application is subject to formal review and the decision is subsequently overturned, this is still considered within the normal parameters of an application process and does not constitute an administrative error.
Tthe onus is on the applicant to provide evidence that an administrative error has occurred. All reasonable efforts should be made by the decision maker to verify the applicant’s claims. The department may on its own initiative take action where the department can identify a clear case of administrative error and apply this discretion on the applicant’s behalf.
Decision makers must be satisfied that an administrative error has in fact occurred. Most cases of administrative error will require examination of client records relating to the relevant visa.
Applicant’s argument regarding alleged administrative error
In a letter to DIBP dated 17 March 2013, Dr Donnelly explained his period as an unlawful non-citizen, stating:
…In 2012 I was appointed to the position of Assistant Professor by UWA, where my contract was extended for another three years. With the new contract, I informed our HR department at UWA I would like to be nominated for Permanent Residency (PR). To accommodate this request the HR department informed me they would first nominate me for a second 457 visa, then nominate me for PR. On Wednesday December 19, 2012, prior to my Christmas holiday back to Canada I was told by Ms. Laura Aldersea via email that my 457 sponsorship was approved. When the University re-opened on January 9th, 2013 she informed me that she would send in my nomination for PR. It should be noted that our human resource officer did not inform me that I was also meant to submit a 457 application with this nomination. I was operating under the premise that both my nominations for a 457 visa and then a nomination for PR served as a bridging visa until the PR process was complete. Upon return to Australia in January 2013, I was capable of passing through immigration without issue, solidifying my thoughts that I held a valid visa. Upon my return to work on January 9th, 2012 (sic) I contacted Ms. Laura Aldersea my UWA HR officer to nominate me for PR. This nomination was delayed as Ms Laura Aldersea was in the process of leaving UWA HR department. Ms Sasha Lightfoot another HR officer took over my case. This is where I believe the majority of the issues arose, as during this process I believe there was a miscommunication with the transfer of my contract and visa nomination between UWA HR officers…
Due to the nature of my unique situation, I hope the Australian immigration department agrees that I meet the schedule 3 requirements on the following grounds:
1.I was provided insufficient information from our HR department on the PR nomination process (verified with letter attached to this application).
2.During the transfer of my contract and visa nomination between UWA HR officers there was a significant miscommunication that likely led to my visa being deemed illegal (verified with letter attached to this application) (ST9/236-237).
In his written submission and before the Tribunal, Dr Donnelly argued that the Tribunal should exercise the discretion in s 22B(5) of the Citizenship Act because his period as an unlawful non-citizen was due to an error by human resources (HR) staff at UWA who should be identified as extensions of DIBP for 457 work visa and permanent residency applications among university employees (civil servants), and because DIBP made an error by allowing him to pass through immigration without a valid visa on 9 January 2013.
Before the Tribunal Dr Donnelly argued that there was ambiguity in the date/time of expiry of his first 457 visa. Dr Donnelly stated:
When going through this case I’ve been reading a lot about the ambiguity of the English language in clarity of specific meanings of words and how they can be interpreted in different ways, and I think this could apply in this scenario what it means by “expired on”, in addition to the Government document that I intended to stay past the date that I would’ve assumed – well, I didn’t assume, it was the date that my visa would’ve expired. So it expired on the 9th, so my interpretation, if I open up my fridge and I say the milk expires on 9 January 2013, I’m not going to drink that milk because it has expired.
So when re-entering the country – and this is going to be the next part, with the advice of my Human Resource Office, which is their primary job is to deal with international scientists to verify these visas. I knew my visa expired on the 9th, that’s when the new visa would’ve kicked in for the 457. So when I arrived and submitted my document to the person stamping your passport and I said I was intending to stay for one more year, I don’t know why that wouldn’t be flagged as a non-entry. Why wouldn’t that be questioned? So the terminology that’s supplied after the fact. It’s midnight, so valid until 11.59. I thought that it would be the day that I arrived, that is the expiration of the visa. So it’s the ambiguity and your interpretation of what you mean by “expired by” and I don’t think that’s clearly stated on the original visa application, and I think that is where I can say there is ambiguity where I got caught in the middle.
When questioned by the Tribunal as to whether, at the time he was returning to Australia on 9 January 2013, he was conscious that his visa expired on 9 January 2013, Dr Donnelly replied: “Was I conscious at that time, no”.
Dr Donnelly contended that following advice from the HR staff at UWA, he understood that he was not required to apply for a second 457 visa and that a bridging visa was in effect after 9 January 2013. Dr Donnelly argued that this circumstance constituted a relevant administrative error which the Tribunal should use to exercise the discretion in section 22B(5) of the Citizenship Act. He further argued that the UWA staff were acting as, or were extensions of the federal government, and in particular DIBP. Dr Donnelly’s evidence before the Tribunal included the following:
With being in the Federal Government, and the Department of Immigration and Border Protection being in the Federal Government, I thought that – well, I do know that universities have special standing for applications for visas, and I thought they would be an extension to the Department of Immigration and Border Protection because there’s people employed to do that function within the federal institution… All university employees are federal government. They’re under that because of our funding laws. So that’s like, are they an executive in the Department of Immigration and Border Protection?
Relevant cases
The Tribunal notes the following cases which consider the concept of administrative error and are relevant to the present matter.
In Re Liu and Department of Immigration and Ethnic Affairs (1996) 41 ALD 589; (1996) 22 AAR 381 at ALD 595-596 (26) (Liu) DP Purvis made the following comments regarding the concept of ‘administrative error’ in s 13(4)(b)(v) of the Australian Citizenship Act 1948 (after referring to Re Lai and Minister for Immigration and Ethnic Affairs (1987) 11 ALD 535 at 540):
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…
In Chaudhary and Minister for Immigration and Citizenship [2010] AATA 1006 at [32] (Chaudhary) DP Handley stated in relation to the administrative error discretion in s 22(4A) of the Citizenship Act (which is relevantly identical to the discretion in s 22B(5) of the Citizenship Act):
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.
In Melhem and Minister for Immigration and Citizenship (2010) AATA 993 (Melhem), SM Toohey stated at (46) that: “s 45(1) of the Migration Act makes clear that a person who wants a visa must apply for one. The onus was on him and not on the Department” before finding that the Department’s failure to advise the applicant that his bridging visa would cease if he went overseas was not a relevant administrative error under s 22(4A) of the Citizenship Act.
Consideration – alleged error by DIBP
On 17 December 2010, DIBP advised Dr Donnelly that the first 457 visa had been granted (ST6/197). The correspondence included the following:
Visa validity period: 17 December 2010 – 09 January 2013
IMMIGRATION STATUS
Once your visa ceases your permission to remain in Australia ends. You will need to obtain another visa or depart Australia. If you remain in Australia without a visa you will be an “unlawful non-citizen” and there will be serious consequences including possible detention and removal from Australia. If you are removed from Australia in this way there may be consequences should you wish to return to Australia in the future.
VISA EVIDENCE FOR VISA HOLDERS IN AUSTRALIA
You will not have a visa label placed in your passport. Our visa and passport details are electronically recorded. If during the period of your visa you depart Australia and wish to return, when you check in to fly to Australia, the airline staff will electronically confirm that you have authority to travel to Australia.
CHECKING YOUR VISA DETAILS
VEVO is a free internet service available 24 hours a day, seven days a week. It allows you to view your visa details online and it provides greater details about your visa than on a label. You can see all the details of your current visa, including subclass, visa description, grant date, period of stay, grant number, entries allowed and conditions that apply to your visa.
Section 82 of the Migration Act 1958 prescribes when visas cease to have effect. Relevantly s 82(7) states: “A visa to remain in Australia (whether also a visa to travel to and enter Australia) during a particular period or until a particular date ceases to be in effect at the end of that period or on that date.”
Having regard to all the evidence before it, the Tribunal remains unclear as to Dr Donnelly’s knowledge and understanding of the status of the first 457 visa at the time he re-entered Australia on 9 January 2013. However, it is clear from the evidence that Dr Donnelly was an experienced traveller, that he was familiar with visa processes, and that he had been given appropriate information on the terms of his first 457 visa including the period of its validity.
In relation to the alleged error by DIBP, the respondent’s written submissions conclude:
62.The applicant’s evidence suggests that he was aware from at least December 2012 that he had been nominated for a second 457 visa (ST9, p236). There is nothing to indicate that the applicant’s travel to Canada in December 2012 and January 2013 prevented him from contacting the Department to enquire regarding the status of any second 457 visa application prior to 9 January 2013.
63.Further, contrary to the applicant’s assertion, the applicant was not allowed to re-enter Australia without a valid visa. The applicant returned to Australia at 3.59 pm on 9 January 2013 (ST24, p270) at which time his first 457 visa was still in effect.
64.There was no positive obligation on the Department to inform the applicant, either prior to or during his re-entry into Australia on 9 January 2013, that his first 457 visa would expire on 10 January 2013. This being the case, no relevant ‘administrative mistake’ or ‘circumstances in which incorrect information (was) provided’ of the type contemplated by the ACI’s is evident from the applicant’s re-entry into Australia on 9 January 2013. Further, there is nothing to suggest that the applicant made enquiries with the Department regarding his visa status during his re-entry into Australia on 9 January 2013, or that the Department failed to provide accurate or clear information in response to any enquiries (Exhibit R1, paras 62-64).
The Tribunal is reasonably satisfied that the evidence supports the respondent’s submissions in the preceding three paragraphs and consequently accepts them.
The evidence before the Tribunal does not establish that Dr Donnelly’s period as an unlawful non-citizen was caused by an error by DIBP.
Consideration – alleged administrative error by UWA human resources staff
UWA was established under, and is governed by, the University of Western Australia Act 1911 (WA). There was no evidence before the Tribunal of any contract, agreement, delegation, oversight or control by which HR staff at UWA could have been construed to be a part of the executive branch of the federal government or an extension of DIBP in the sense described above in Liu and Chaudhary.
Relevant to this alleged administrative error by UWA HR staff, a letter dated 6 August 2015 from the Director Human Resources states:
In the months leading up to the expiry of his 457 visa (9 Jan 2013) there was some miscommunication between Dr Donnelly and the former HR representative looking after his appointment…The correspondence between the HR Officer and Dr Donnelly led him to believe that he was working legally, and whilst I understand it was Dr Donnelly’s responsibility to understand the terms of his visa, his assumptions were based on misinformed information he was provided with which was thought to be from a dependable source (ST15/254).
A letter from the Head of the School of Sport Science, Exercise & Health dated 8 August 2015 relevantly states:
However, due to unfortunate and unique administration errors between Dr Donnelly, our University’s HR section and ultimately, Australian Immigration, Cyril continued to work at the university for a short period without a visa (ST16/255).
The Tribunal accepts that although these two letters may point to difficulties and errors within UWA in relation to Dr Donnelly and his visa status, they do not provide probative evidence such that an error under s 22B(5) is established.
In his letter to DIBP dated 17 March 2013, and quoted above, Dr Donnelly employed the phrase: “Upon my return to work on January 9th….”(ST9/236). Dr Donnelly clarified this detail before the Tribunal, advising that he did not go to his university office that afternoon. Rather, he “would’ve attended to the emails that were stacking up over my leave period”. Any errors or miscommunications within the UWA HR department on or after 10 January 2013 and after Dr Donnelly’s return to work could not have caused Dr Donnelly to become an unlawful non-citizen, as he was already an unlawful non-citizen at that time.
Relevant to this this alleged error, in Exhibit R1 the respondent submits:
56. It is unclear why the applicant, having applied for and granted his first 457 visa, considered that he was not required to apply for his second 457 visa. As noted by SM Toohey in Melhem, pursuant to s 45(1) of the Migration Act it was for the applicant to do so. There is no clear evidence that the applicant’s failure to do so was caused by incorrect information provided by UWA’s HR section and in any event, in light of Liu and Chaudhary, any such incorrect information cannot amount to administrative error for the purposes of s 22B(5) of the Citizenship Act (Exhibit R1, para 56).
The evidence before the Tribunal does not establish that Dr Donnelly’s period as an unlawful non-citizen was a result of an error by HR staff at UWA. Nor is there evidence that DIBP provided incorrect information to UWA HR staff with respect to Dr Donnelly such that an administrative error under s 22B(5) is established. As previously stated, there is no evidence to support a proposition that in the present matter concerning Dr Donnelly, UWA HR staff were part of the executive branch of the federal government or acting as an extension of DIBP.
Consequences of Dr Donnelly not being granted citizenship
Dr Donnelly provided no evidence to the Tribunal that he would suffer hardship or disadvantage if not successful in the present proceeding. Before the Tribunal, Dr Donnelly confirmed his commitment to gaining Australian citizenship, and in relation to this proceeding said: “I think this is one of the reasons I want to be an Australian is you have these systems in place”.
Relevantly, in Exhibit R1, the respondent stated:
The applicant is not prevented from re-applying for Australian citizenship in March 2017 when he is able to satisfy s 22(b) of the Citizenship Act;
absent any further lengthy absences from Australia (such as a further sabbatical), and having regard to the permitted absences set out in s 22(1A) and a 22(1B) of the Citizenship Act, the applicant may be able to meet the general residence requirements even taking into account any further overseas travel for the purpose of attending conferences, visiting academic institutions (Exhibit R1, para 65.2-3).
CONCLUSION
Having regard to all the evidence and relevant factors, including guidance contained in the Policy, the Tribunal is satisfied that there is insufficient evidence that Mr Donnelly’s period as an unlawful non-citizen was caused by an administrative error by DIBP of the kind required by s 22B(5) of the Citizenship Act. Accordingly, the Ministerial Discretion – Administrative Error under 22B(5) is not enlivened.
Dr Donnelly is unable to satisfy s 22B(1)(g) and, consequently, s 21(2)(c) of the Citizenship Act.
DECISION
For the above reasons, the Tribunal affirms the citizenship decision dated 2 September 2015.
I certify that the preceding 53 (fifty-three) paragraphs are a true copy of the reasons for the decision herein of Brigadier AG Warner, Member .....[Sgd]...................................................................
Administrative Assistant
Dated 28 September 2016
Date of hearing 30 June 2016 Applicant In person Representative for the
RespondentMr D Carroll Solicitors for the Respondent
Australian Government Solicitor
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