Douw and Minister for Immigration and Border Protection (Citizenship)
[2017] AATA 2181
•10 November 2017
Douw and Minister for Immigration and Border Protection (Citizenship) [2017] AATA 2181 (10 November 2017)
Division:GENERAL DIVISION
File Number: 2017/2178
Re:Amatus Douw
APPLICANT
AndMinister for Immigration and Border Protection
RESPONDENT
DECISION
Tribunal:Member D K Grigg
Date:10 November 2017
Place:Brisbane
The Tribunal affirms the decision under review.
.................................[Sgd].......................................
Member D K Grigg
CATCHWORDS
CITIZENSHIP – whether unlawful non-citizen – whether discretion in section 22(4A) applies – decision under review affirmed
LEGISLATION
Australian Citizenship Act 2007 (Cth)
Migration Act 1958 (Cth)
CASES
Drake v Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634
SECONDARY MATERIALS
Citizenship Policy, Department of Immigration and Border Protection, 1 June 2016
REASONS FOR DECISION
Member D K Grigg
10 November 2017
BACKGROUND
Mr Douw was born in Indonesia in 1980. He came to Australia on March 2006 and was granted a Temporary Protection (Subclass 785) Visa. Mr Douw was then granted a Resolution of Status (Subclass 851) Visa on 31 December 2008 which had a travel facility in effect for 5 years. Mr Douw departed Australia on 30 November 2014 and returned on 7 December 2014. When Mr Douw departed Australia, the travel facility associated with his Resolution of Status (Subclass 851) Visa was no longer in effect and, as a result, the Visa ceased. When Mr Douw arrived in Australia on 7 December 2014 he was granted a Temporary Border (Subclass 773) Visa (“December Temporary Border Visa”)[1] to facilitate his re-entry which expired on 6 January 2015.[2]
[1] Exhibit 2, Respondent’s Statement of Facts, Issues and Contentions dated 15 September 2017, Annexure 1, Visa Grant Notice dated 7 December 2014.
[2] Exhibit 1, T Documents, T8, page 50, Visa records.
By the time the December Temporary Border Visa expired Mr Douw had not applied for another Visa.
Mr Douw departed Australia again on 8 March 2015.[3] Upon Mr Douw’s return to Australia on 17 April 2015 he was again granted another Temporary Border (subclass 773) Visa (“April Temporary Border Visa”) to facilitate his re-entry which was valid for 30 days.[4]
[3] Exhibit 1, T Documents, T7, page 45, Movement records.
[4] Exhibit 1, T Documents, T7, page 45, Movement records.
As at 17 May 2015, when the April Temporary Border Visa expired, Mr Douw had not applied for another Visa. Mr Douw did not apply for a Resident Return (Subclass 155) Visa until 2 June 2015. Therefore, between 6 January 2015 and 17 April 2015, and 17 May 2015 and 2 June 2015 Mr Douw was present in Australia without a visa.[5]
[5] Exhibit 1, T Documents, T6, pages 34 – 43, Email from DIBP to Mr Douw and Notification of Refusal of an Application for Australian Citizenship by Conferral dated 12 April 2017.
Mr Douw applied for Australian citizenship by conferral on 16 December 2013 and this was refused on 25 September 2015.[6]
[6] Exhibit 1, T Documents, T6, page 36, Email from DIBP to Mr Douw and Notification of Refusal of an Application for Australian Citizenship by Conferral dated 12 April 2017
On 9 February 2017 Mr Douw again applied for Australian citizenship by conferral (“Citizenship Application”).[7] However, on 12 April 2017 the Department of Immigration and Border Protection (“DIBP”) advised Mr Douw that he did not meet the general residence requirement under section 22 of the Australian Citizenship Act 2007 (“the Act”) (“DIBP Decision”).[8]
[7] Exhibit 1, T Documents, T4, pages 9 – 27, Application for Australian Citizenship dated 30 January 2017.
[8] Exhibit 1, T Documents, T6, pages 34 – 43, Notification of Refusal of Application for Citizenship from DIBP to Mr Douw dated 12 April 2017.
Mr Douw has sought a review of the DIBP Decision by this Tribunal.[9]
[9] Exhibit 1, T Documents, T1, pages 1-8, Application for Review of Decision dated 15 November 2016.
ISSUES FOR DETERMINATION
The issues for determination by the Tribunal are whether:
(a)Mr Douw satisfies the residence criteria at section 21(2)(c) of the Act; or, alternatively
(b)the discretion in section 22(4A) of the Act should be exercised to “treat a period as one in which Mr Douw was not present in Australia as an unlawful non-citizen” if the unlawful non-citizenship was “because of an administrative error”.
The Tribunal has jurisdiction to review the DIBP Decision pursuant to section 52(1)(b) of the Act.
LEGISLATIVE REQUIREMENTS
A person may apply to the Minister to become an Australian citizen.[10] However, pursuant to section 24(1A) of the Act, the Minister “must not approve” a person’s application to become an Australian citizen “unless the person is eligible to become an Australian citizen under subsection 21(2), (3), (4), (5), (6), (7) or (8)” of the Act.
[10] Section 21(1) of the Act.
Section 21(2)(c) of the Act relevantly provides that:
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) … at the time the person made the application…
Section 22 of the Act sets out the general residency requirements. It provides:
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.
Overseas absences
(1A) If:
(a) the person was absent from Australia for a part of the period of 4 years immediately before the day the person made the application; and
(b) the total period of the absence or absences was not more than 12 months;
then, for the purposes of paragraph (1)(a), the person is taken to have been present in Australia during each period of absence.
(1B) If:
(a) the person was absent from Australia for a part of the period of 12 months immediately before the day the person made the application; and
(b) the total period of the absence or absences was not more than 90 days; and
(c) the person was a permanent resident during each period of absence;
then, for the purposes of paragraph (1)(c), the person is taken to have been present in Australia as a permanent resident during each period of absence.
…
(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.
(My emphasis)
In order for Mr Douw to be eligible to become an Australian citizen, Mr Douw needs to meet the requirements of section 22 of the Act. Alternatively, section 22(4A) of the Act provides that the Minister may exercise a discretion to “treat a period as one in which the person was not present in Australia as an unlawful non-citizen” if the unlawful non-citizenship was “because of an administrative error”.
WAS MR DOUW PRESENT IN AUSTRALIA FOR THE PERIOD OF 4 YEARS IMMEDIATELY BEFORE THE DAY HE MADE THE APPLICATION FOR CITIZENSHIP: SECTIONS 22(1)(a), 22(1A)?
In the four years prior to lodging his Citizenship Application (between 9 February 2013 and 9 February 2017) Mr Douw was absent from Australia for 73 days.[11] This means that Mr Douw would not meet the criteria in section 22(1)(a) of the Act. However, because the periods of time spent overseas were less than 12 months, section 22(1A) of the Act provides that Mr Douw is taken to have been present in Australia during his periods of absence.
[11] Exhibit 1, T Documents, T6, page 36, Notification of Refusal of Application for Citizenship from DIBP to Mr Douw datedTherefore, Mr Douw satisfies the criteria in section 22(1)(a) of the Act.
WAS MR DOUW PRESENT IN AUSTRALIA AS AN UNLAWFUL CITIZEN AT ANY TIME DURING THE PERIOD OF 4 YEARS IMMEDIATELY BEFORE THE DAY HE MADE THE APPLICATION FOR CITIZENSHIP: SECTIONS 22(1)(b)?
In order to satisfy section 22(1)(b) of the Act, Mr Douw must not have been present in Australia as an unlawful non-citizen at any time during that 4-year period prior to his Citizenship Application.
It is not in dispute that in the four years prior to making his application for citizenship, Mr Douw was present in Australia on 2 occasions without holding a visa. The first occasion was between 6 January 2015 and 8 March 2015, and the second occasion was between 17 May 2015 and 2 June 2015. During these time periods, Mr Douw did not have a valid visa to remain in Australia. On both occasions Mr Douw failed to apply for a Resident Return (subclass 155) Visa prior to his Temporary Border (subclass 773) Visa expiring.
Does this mean that on those occasions Mr Douw was an “unlawful noncitizen”? The meaning of an “unlawful non-citizen” is defined in section 3 of the Act as having the same meaning as in the Migration Act 1958 (“Migration Act”). Section 14(1) of the Migration Act provides that a non-citizen in the migration zone who is not a lawful non-citizen is an unlawful non-citizen. Section 13(1) provides that a non-citizen in the migration zone who holds a visa that is in effect is a lawful non-citizen.
Therefore, because Mr Douw was present in Australia on 2 occasions without a visa, he was, during those periods, an unlawful non-citizen and therefore does not satisfy section 21(2)(b) of the Act.
The issue becomes whether the discretion under section 22(4A) should be exercised.
MINISTERIAL DISCRETION: SECTION 22(4A)
Before the Minister can exercise the discretion provided for in section 22(4A) it must be found that the only reason Mr Douw was an unlawful non-citizen was because of “administrative error”.
What is meant by “administrative error”?
“Administrative error” is not defined in the Act.
However, the Minister referred the Tribunal to the Citizenship Policy which provides guidance to the DIBP in relation to the exercise of the discretion under section 22(4A) of the Act. The Tribunal is not bound to apply the Citizenship Policy but it may, and it should, apply it in exercising its discretion unless it is unlawful or “tends to produce an unjust decision”.[12]
[12] Drake v Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634, at 645.
The Citizenship Policy states:[13]
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.
The 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.
[13] Citizenship Policy, pages 27-28.
Mr Douw gave evidence before the Tribunal that:
· it was difficult to understand the law;
· when he flew in and out of Australia no one at Migration told him that the Temporary Border Visas would expire;
· someone at Migration should have told him he would be in Australia illegally if he did not apply for a visa;
· hHe did not understand that the expiration of his temporary visa would affect his residency status or his Citizenship Application.
There is no evidence before the Tribunal that:
(a)the DIBP gave Mr Douw incorrect information. In fact, the Visa Grant Notice provided to Mr Douw in relation to his Temporary Border visas specifically states that:[14]
If you remain in Australia without a visa you will be an unlawful non-citizen and there may be serious consequences, including possible detention and removal from Australia.
(a)a decision maker incorrectly recorded the nature of Mr Douw’s visas at the relevant times;
(b)Mr Douw was given incorrect advice about his status;
(c)Mr Douw followed incorrect advice given to him by an officer of the DIBP;
(d)Mr Douw 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 DIBP; or
(e)tThere was a delay in processing Mr Douw’s application for a visa. In fact his returning residency visa was granted the day Mr Douw applied for it.[15]
[14] Exhibit 2, Respondent’s Statement of Facts, Issues and Contentions dated 15 September 2017, Annexure 1, Visa Grant Notice dated 7 December 2014.
[15] Exhibit 1, T Documents, T8, page 52, Visa records.
There is simply no evidence of any error.
In the circumstances the Tribunal finds that Mr Douw was not an unlawful non-citizen, during the relevant periods, because of an administrative error and therefore the discretion in section 22(4A) of the Act is not enlivened.
Whether the discretion should be exercised
I have found that Mr Douw does not meet the criteria in section 22(4A) of the Act and as a result it is not necessary for me to consider whether the discretion contained in that section should be exercised in Mr Douw’s favour.
DECISION
Mr Douw does not satisfy the general residence requirement in section 22 of the Act and therefore is not eligible for citizenship under section 21(2)(c) of the Act.
Mr Douw’s application therefore must be refused.
As a Permanent Visa holder, Mr Douw may reapply for citizenship in the future when he satisfies the general residence requirement in the Act.
The decision under review is affirmed.
I certify that the preceding 33 (thirty-three) paragraphs are a true copy of the reasons
for the decision herein of Member D K Grigg................................[Sgd]....................................
Associate
Dated: 10 November 2017
Date of hearing:
6 November 2017
The Applicant:
By telephone
Solicitors for the Respondent
Mr Jake Kyranis
Sparke Helmore
:
12 April 2017.
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