Faltas and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Citizenship)

Faltas and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Citizenship) [2020] AATA 1862 (22 June 2020)
Division:GENERAL DIVISION
File Number(s):2019/4254
Re:Magda Angly Said Faltas
APPLICANT

AndMinister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
RESPONDENT

DECISION
Tribunal:Ms Anna Burke AO Member
Date:22 June 2020
Place:Melbourne

The decision under review is set aside and the matter is remitted to the Minister with the direction that the discretion in s 22(4A) of the Citizenship Act should be exercised in favour of Mrs Faltas to disregard the period 22 February 2017 when she was an unlawful non-citizen in Australia, and that Mrs Faltas therefore satisfies the general residence requirement referred to in s 22(1)(b) of the Citizenship Act.
.....[sgd]..............................................................
Ms Anna Burke AO Member
Catchwords
CITIZENSHIP – refusal to grant citizenship by conferral - whether applicant met the general residence requirement at the time she applied for Australian citizenship – whether the applicant was an unlawful non-citizen in Australia during the four year period of residency requirement – whether an administrative error lead to the applicant being unlawful – whether Ministerial discretion is enlivened – decision under review set aside and remitted
Legislation
Administrative Appeals Tribunal Act 1975
Australian Citizenship Act 2007
Migration Regulations 1994 (Cth) as amended by Customs and Migration Legislation Amendment (2016 Measures No. 1) Regulation 2016
Cases
Chaudhary and Minister for Immigration and Citizenship [2010] AATA 1006
Dranichnikov and Centrelink (2003) 75 ALD 134
Farag and Minister for Immigration and Border Protection [2014] AATA 927
Secondary Materials
Department of Immigration and Border Protection, Citizenship Policy (1 June 2016)
REASONS FOR DECISION
Ms Anna Burke AO Member
22 June 2020
INTRODUCTION

Mrs Faltas (the applicant) is a 73-year-old Egyptian national who first arrived in Australia on 25 June 2008. She returned on a Tourist visa on 20 January 2013 and subsequently applied for an Onshore Protection visa. On 21 November 2017, Mrs Faltas was granted a Former Resident Subclass 151 (Permanent visa).
On 10 May 2019, Mrs Faltas lodged an application for Australian citizenship by conferral and sought Ministerial discretion on the grounds of administrative error.
On 19 June 2019, a delegate of the Minister for Home Affairs (the Minister) refused to grant Mrs Faltas Australian citizenship under s 24(1) of the Australian Citizenship Act 2007 (the Citizenship Act), on the basis that she did not satisfy the "general residence requirement" in s 22 of Citizenship Act as required by s 21(1)(b) of the Citizenship Act. The delegate found:
Departmental records indicate that you did not hold a valid visa during the following periods:
• between the expiry of your Bridging Visa A on 21 February 2017 and the grant of a Bridging Visa E on 23 February 2017; and
• between the expiry of a Bridging Visa E on 6 November 2017 and the grant of your subclass 151 visa on 21 November 2017.
These periods of residence without a valid visa mean that you were present in Australia as an unlawful non-citizen in the 4 years immediately prior to lodging your citizenship application.
…
In support of your request for Ministerial discretion you have provided evidence that you were an inpatient at Angliss Hospital on 21 February 2017. Your Bridging Visa A expired on 21 February 2017 and you next held a valid visa on 23 February 2017, following the grant of a Bridging Visa E. Whilst I acknowledge that you were not able to attend the Department due to your rehabilitation, these circumstances do not fall within the scope of administrative error, and the discretion set out in subsection 22(4A) cannot be applied to this period.
I have also considered whether this discretion can be applied in relation to the second period during which you were present in Australia without a valid visa, which occurred following the cessation of a Bridging Visa E on 6 November 2017. You next held a valid visa upon the grant of your subclass 151 visa on 21 November 2017. You have not provided any evidence, nor is there any information on departmental records, that demonstrates that this period is attributable to administrative error. The discretion set out in subsection 22(4A) can therefore not be applied in relation to this period.
I have considered whether any of the other residence discretions in subsections 22(5), (5A), (6), (9) and (11) can be applied to your application.
Based on the information available, I am not satisfied that any of the partial exemptions or Ministerial discretions to the residence requirement apply to you.
On 15 July 2019, Mrs Faltas applied to the Administrative Appeals Tribunal (AAT) for a review of the Decision. In her application for review she stated:
The refusal of an application for Australian citizenship by conferral
was based on two periods of time I was not lawfully staying in Australia
- First one because I was unlawfully in Australia between 21 Feb to 23 Feb 2017
- Second one unlawfully in Australia between 6 NOV 2017 to 21 NOV 2017
So in fact for the second period, I was lawfully and having a visa number [redacted visa number]
Starting from 03 Nov 2017 to 05 Jan 2018
Now back to the first one which I believe that there is an administrative error
Because of on 21 feb 2017 at around 12:30 pm My son and my immigration agent at that time was (Fadi Malek ) Met [name of case officer] who was my case officer in his office to apply for bridging visa for me and my son, and I didn't go with them because I was at the Angliss hospital for rehabilitation after knee replacement surgery so my agent ( Fadi ) asked the case officer to grant me a visa to be lawfully in Australia, and my son ( PETER ) offered to bring me to the department by ambulance
He said No don't bring her just send me a medical C RT and I will grant her a Bridging Visa E
- After my agent Fady sent the Medical C rt to him, he responds by email saying that he forgot to mention that he should see me at least once to grant me bridging visa E
My son ( Peter Said ) and my daughter ( Nermin Faltas ) called him again to ask him for a visit to the hospital or to wait for us until we can go to his office by ambulance as I was not able to move and I want to be lawfully in Australia,
My son, My daughter and my agent called him by phones and emails many times to try to get a visa for me and told him that they don’t want me to be unlawfully in Australia even for one day to secure her opportunity with citizenship, He responds by emails saying she will be affected anyway as anyone come to his office should become unlawfully first to be granted bridging visa E, and she cannot apply for citizenship before 5 years after the permanent resident visa, so no need to do all of these my son called him again to get an appointment with him on this (22- Feb -2017 ) day so we can go by ambulance he told him I don’t have time today and I will come to her tomorrow in the rehabilitation on (23 -Feb -2017 )
Finally, I don't know what else we could do at that time to be able to stay lawfully in Australia if [the case officer] requested to see me from the first appointment with my son and my agent on ( 21 - Feb - 2017 )I would be able to go by Ambulance meet him as I had to move to medical scans and tests when needed by ambulance during this period. but he gave us the impression that he was able to give me the BVE [Bridging Visa E], if we just sent the medical certificate to him then he said I can't; I should see her first
(all sic)
The application was heard on the papers on 6 May 2020. Mrs Faltas was represented by Mr Amir Awad, of Xary Lawyers, and Ms Eleanor Elliott, of Sparke Helmore Lawyers, represented the Respondent.
ISSUES FOR THE TRIBUNAL
The issues for the Tribunal are:
(a)Did Mrs Faltas meet the "general residence requirement" in s 22(1)(b) of the Citizenship Act at the time of the application for Australian citizenship?; and
(b)If not, can Mrs Faltas receive Ministerial discretion under s 22 of the Act, specifically under s 22(4A) that the Minister is satisfied that Mrs Faltas was present in Australia but because of an administrative error was an unlawful non-citizen during that period?
LEGISLATIVE AND POLICY BACKGROUND
Section 24 of the Citizenship Act states:
Minister's decision
(1) If a person makes an application under section 21, the Minister must, by writing, approve or refuse to approve the person becoming an Australian citizen.
...
(1A) The Minister must not approve the person becoming an Australian citizen unless the person is eligible to become an Australian citizen under subsection 21(2), (3), (4), (5), (6), (7) or (8).
Section 21(2) of the Citizenship Act provides:
General eligibility
(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 satisfies the defence service requirement (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.
Section 22 of the Citizenship Act refers to the “general residence requirement” in the following terms:
(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.
Section 22(4A) of the Citizenship Act provides the following Ministerial discretion because of administrative error:
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 Department of Immigration and Border Protection (the Department), which became the Department of Home Affairs in December 2017, developed the Citizenship Policy (the Policy) to support the Citizenship Act. The introduction to the Policy provides the following guidance regarding its role:
The role of Citizenship Policy is to support the Australian Citizenship Act 2007 (the Act). Citizenship Policy provides guidance on the interpretation of, and the exercise of powers under, the Act and the Australian Citizenship Regulations 2007 (the Regulations). Policy cannot constrain the exercise of delegated powers under the Act or the Regulations.
The Policy defines administrative error in the following terms:
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
….
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 claim. 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.
The Policy outlines the Minister’s discretion to count, for the purposes of 22(1)(b), periods spent in Australia where the necessary legal status was absent, provided certain requirements are met:
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 two parts:
· there must be 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 Migration Regulations 1994 (Cth) as amended by Customs and Migration Legislation Amendment (2016 Measures No. 1) Regulation 2016 (the 2016 Regulations), which were in force at the relevant time, refer to general provisions for granting a Bridging Visa, stating:
Subclass 050—Bridging (General)
050.1—Interpretation
Note: Compelling need to work and criminal detention are defined in regulation 1.03. For eligible non-citizen see regulation 2.20. Tribunal is defined in subsection 5(1) of the Act. There are no interpretation provisions specific to this Part.
050.2—Primary criteria
Note: All applicants must satisfy the primary criteria.
050.21—Criteria to be satisfied at time of application
050.211
(1) The applicant is:
(a) an unlawful non-citizen; or
(b) the holder of a Bridging E (Class WE) visa; or
(c) the holder of a Subclass 041 (Bridging (Non-applicant)) visa.
(2) The applicant is not an eligible non-citizen of the kind set out in subregulation 2.20(7), (8), (9), (10), (11) or (17).
050.212
…
(5B) An applicant meets the requirements of this subclause if the applicant:
(a) is a person to whom section 48A of the Act applies; and
(b) has made a request to the Minister to determine under section 48B of the Act that section 48A of the Act does not apply to prevent an application for a protection visa by the applicant; and
(c) has not previously sought, or been the subject of a request by another person for:
(i) a determination under section 48B of the Act; or
(ii) the exercise of the Minister’s power under section 345, 351 or 417 of the Act
Regulation 2.25 of the 2016 Regulations outlines the interview requirement for granting of a Bridging E (Class WE) visa (BVE) without application:
(1) This regulation applies to:
(a) a non-citizen who is in criminal detention; or
(b) a non-citizen who:
(i) is unwilling or unable to make a valid application for a Bridging E
(Class WE) visa; and
(ii) is not barred from making a valid application for a Bridging E (Class WE) visa by a provision in the Act or these Regulations, other than in item 1305 of Schedule 1.
(2) Despite anything in Schedule 1, the Minister may grant the non-citizen a
Bridging E (Class WE) visa if the Minister is satisfied that, at the time of
decision:
(a) the non-citizen satisfies:
(i) the criteria set out in clauses 050.211, 050.212, 050.223, 050.224 and 050.411 of Schedule 2; and
(ii) the interview criterion; or
(b) the non-citizen satisfies the criteria set out in clauses 051.211, 051.212,
051.213, 051.221 and 051.411 of Schedule 2.
(3) The non-citizen satisfies the interview criterion if an officer who is authorised by
the Secretary for the purposes of subclause 050.222(1) of Schedule 2 has either:
(a) interviewed the non-citizen; or
(b) decided that it is not necessary to interview the non-citizen.
EVIDENCE
The evidence before the Tribunal included documents provided pursuant to s 37 of the Administrative Appeals Tribunal Act 1975, referred to as the “T documents” and various statements from Mrs Faltas, her son and her former migration agent.
On 22 February 2017, Mr Fadi Malek, Mrs Faltas’ migration agent at the time of her BVE application in 2017, sent an email to the case officer stating:
…further to our meeting yesterday, kindly find letter from the hospital stating that Mrs Magda Falta is an inpatient and has not been discharged yet, she cannot leave the hospital anytime soon, kindly proceed with the BVE application, Thanks
(all sic)
Attached to the email was a medical certificate from Angliss Hospital dated 21 February 2017 which states:
Magda Faltas…was transferred to rehabilitation at the Angliss Hospital on the 18.02.2017 and has been an inpatient for optimisation of mobility following an elective total knee replacement that was performed at Box Hill Hospital on the 15.02.2017. Given the nature of her current condition and her physical size, she is still requiring assistance for ambulation and transfers. She is currently not safe for discharge as she would be at high risk of falling and it would also pose a high OHS (Occupational Health And Safety) risk to staff and family who are providing assistance in her transfers.
In an email to Mr Malek dated 22 February 2017, the case officer stated:
I forgot to mention yesterday that to grant the initial BVE we need to sight the client at least once – so I’ll need to wait until she comes into the office, but I’ll put a note on her file to that effect.
Because she has a pending MI case she is eligible for the grant of a BVE, so this puts her in a different scenario to someone who goes UNC but has nothing pending.
An email from the case officer to Mrs Faltas children dated 3 May 2019 stated:
I have compiled what relevant information I have available regarding Magda’s circumstances – some documents have been attached but others are just notes on file.
Health
Magda had surgery on her knee 15/02/2017 at Box Hill Hospital relating to severe osteoarthritis – she was then transferred to the rehabilitation ward of Angliss Hospital – Upper Ferntree Gully on the 18/02/2017.
“Interview #1 Date:23/02/2017 …
Interview conducted through site-visit at Angliss Hospital. Client presented with daughter Nermin and son Peter.
Case officer… also present
Client was in pain due to gastrointestinal issues – her children assisted for most of the interview.
Medicare status letter provided to client – children asked for clarification on whether Magda status (becoming UNC for one day) would adversely affect her eligibility for Citizenship.
I was contacted by phone multiple times by Peter, Nerim and their Migration Agent regarding this concern on the 22/02/2017, as they believed that Magda would be disadvantaged as a result of CSRS’s actions in not granting Magda a BVE without first sighting her. Their agent threatened to take the matter to court, stating I had personally caused an administrative error which would affect his client.
I explained to all three callers anyone who is granted BVE would have their Citizenship eligibility date affected (with relation to needing to not be unlawful in the five years prior to applying for citizenship) – and this was through no fault or action of any Compliance staff. If I had granted a visa without physically seeing her, her eligibility date would have to be at least five years from the date of her first BVE grant – as Bridging Visa E’s can only be granted to Unlawful clients not holding a Visa. I counselled clients that their mother was also affected by condition 8503 - No Further Stay - and suggested they seek advice from their agent as to how to address this issue.
BVE granted to Magda (MI guidelines met)…
(all sic)

Mr Peter Said, Mrs Faltas’ son, provided the following statement dated 7 October 2019:
I went on 21/2/2017 with our agent Mr. Fadi Malek to meet [the case officer], the immigration case officer to get a bridging visa for both myself and my mum as we had applied for ministerial intervention in our case.
My mum was at Angliess rehabilitation recovering from a knee surgery,
Mr. Fadi was the immigration agent for both of us at this time.
[The case officer] granted me a bridging visa at this day and for my Mum he asked us to provide a medical certificate so he can grant her a visa.
I had a problem myself back in 2015 when my student visa was cancelled and the immigration department refused my protection visa I spent 2 days unlawfully in Australia before being told by one of the lawyers that this two days will affect my citizenship application if I got the permanent visa any day in the future.
That's why I didn’t want my mum to be in the same situation and I offered [the case officer] to bring my Mum to the department by ambulance but he said no need for that just send me the medical certificate and I'll grant her a bridging visa ..
I confirmed twice with [the case officer] the he will grant her bridging visa when we sent the Medical certificate.
I was already worried and trying to avoid what happened to me in the past to happen again with my mum,
After we sent [the case officer] the medical certificate he told my agent Mr. Fadi that he forgot to mention that he needed to see her for at least the first time and he will schedule a time to visit her in the rehab center
so I called him to tell him that I don’t want my mum to be staying unlawfully in Australia his answer was :- anyone become unlawful before getting bridging visa and if she get a permanent visa one day she will have to wait 5 years to apply for citizenship so no need to do anything now and I will visit her on 23/2/2017 to grant her the visa at the rehab center .also he sent the same response in his email to Mr. Fadi dated 22/ 2/ 2017
(all sic)
Mr Malek, provided the following statement dated 9 October 2019:
I have been representing Mrs Faltas and her son Mrs Said for their Ministerial Intervention request.
On the 21st of Feb 2017; I met with Mr Peter Said at the compliance office with the intention of lodging two BVE applications for both of them;
·     after some time we were called by [the case officer] an officer of the department.
·     [The case officer] introduced himself and invited us to an interview room,
·     l had a chance to introduce Mr Said and explained the situation of Mrs Faltas, in the same time I present [the case officer] with the signed application forms for both Mr Said and Mrs Faltas,
·     [The case officer]continued with his interview for Mr Said and during the that time he was collecting information on Mrs Faltas situation,
·     During the interview Mr Said offered to transport his mother - Mrs Faltas - using the hospital ambulance and get her to come if that was required by [the case officer].
·     [The case officer] refused and explained that there is no need for her to come and that he will have a note on the file explaining her medical condition.,
·     By the end of the interview [the case officer] gave us the impression that he is satisfied with the applications and that he is proceeding with the grant of the visa, still he requested for a copy of the hospital letter to have it on record,
·     While it is part of the visa criterion namely sub-Reg 050.222(1) for the applicant to be interviewed; Reg 2.25(3) consider the criteria satisfied if the officer decided that is not necessary to interview the applicant,
·     up to this point of time I was under the impression that [the case officer] is exercising the power of Reg2.25(3)and waving the interview criterion and granting Mrs Faltas the visa.
·     by the end of the business day we did not receive any communication from [the case officer],
·     the next day I sent the requested certificate to [the case officer] and received an email from him stating the following;
…
“I forgot to mention yesterday that to grant the initial BVE we need to sight the client at least one - so I’ll need to wait until she comes into the office, but while a note on her file to that effect.
Because she has a pending MI case she is eligible for the grant of a BVE, so this puts her in a different scenario to someone who goes UNC but has nothing pending.”
I was surprised to get that email as it shows that [the case officer] was not aware of visa criterion under Sub-Reg 050.222(1) despite the fact that Mr Said offered to transport Mrs Faltas for a personal interview, and
Secondly; that [the case officer] was not aware of the operation of Reg 2.25 and Reg 2.25(3) that will satisfies the interview criterion 050.222(1) if the authorised officer has interviewed the person or has decided it is not necessary to interview the applicant.
I called [the case officer] directly after that email and raised my concern that Mrs Faltas became unlawful for circumstances that out of her control.
[The case officer] sent me another email stating the following;
''HiFadi,
As discussed- anyone who comes into our space (Compliance) - MUST become unlawful to be granted a BVE. This means regardless of when the BVE is granted, the client in question is affected in terms of eligibility dates for Citizenship.
So even if I grant her a BVE at this very second, she is still affected. I appreciate your concern for your client, but she would have been affected regardless.”
I strongly believe that [the case officer] could have managed the case in a better way and that Mrs Faltas is effected by an administrative error for the following reasons;
1. [The case officer]’s lack of understanding of the operation of sub-Reg 0S0.222(1), while Sub Reg 050.222(1) requires the applicant for BVE to be interviewed by the authorised officer, nothing in the criterion requires the applicant to be interviewed in person, the relevant policy explains that the interview can be conducted by telephone,
The fact that [the case officer] did not offer the opportunity for Mrs Faltas to be interviewed by telephone and that he sent that email dated 22nd of Feb stating that he forgot to mention that he needs to interview Mrs Faltas only will lead to one conclusion that on 21st of Feb when I submitted an application on behalf of Mrs Faltas - [the case officer] was under the impetration that he does not need to interview Mrs Faltas,
2. On the 21st of Feb when Mrs Faltas lodged the application for BVE; [the case officer] was not aware of the operation of Reg 2.25 and Reg 2.25(3)that would allowed him to grant Mrs Faltas the visa on the same day, in his second email dated 22nd of Feb he stated; so even if I grant her a BVE at this very second, she is still affected. I appreciate your concern for your client, but she would have been affected regardless which shows that he was not aware of the fact that he can grant her the visa without a personal interview.
(all sic)
Mrs Faltas provided the following statement dated 27 March 2020:
I applied for Australian Citizenship and I was refused because of mistakes the case officer made; I have always obeyed the visas I have had and this situation about refusing my citizenship application has made me very distraught. I have never had trouble in Australia, and I am very upset that this has happened to me.
I have previously applied and been successful in obtaining multiple Bridging Visas and a Former Resident Visa.
On the 21/02/2017 my son, Peter Said and my Immigration Agent at the time, Mr Fadi Malek attended a meeting at the Department of Home Affairs to grant myself a Bridging Visa E. As I was very sick at the time and I suffer some memory loss, they helped me by handling my affairs. I was not able to attend this meeting as I was in rehabilitation at the time, recovering from a knee replacement surgery I had on the 15^th of February 2017.
I was very unwell while I was having my surgery, and I was unable to walk and I had very bad pain all over my body. I was in rehab for some time after my surgery, as I was in really bad pain.
My son and Fadi had attended the meeting and they explained to the case officer why I was not able to attend. I was told that the case officer told my son that there was no need for me to come to the meeting. My son even offered to bring me to the interview by ambulance and the case officer said there was no need to as he could still grant my visa even though I wasn't there.
I never spoke to the case officer directly, he never contacted me to talk about my bridging visa even though I was in rehabilitation. Fadi said the case officer told him in an email that he will come to the rehab grant me the visa but he came after the expiry date.
If the case officer gave me the choice to attend the meeting in an ambulance, I would have been more than happy to come even though was in a lot of pain.
I am very distressed about the whole situation; I have been in Australia for a very long time and have never done anything wrong. I have always obeyed my visa rules since I came to Australia in 2008 and I want nothing more than to become an Australian Citizen.
(all sic)
CONSIDERATION
As the Minister has conceded that Mrs Faltas held a valid visa during the second period identified by the delegate, being 6 November 2017 to 21 November 2017, the Tribunal finds she was lawfully present in Australia at this time.
The parties do not dispute that Mrs Faltas was in Australia on 22 February 2017 as an unlawful non-citizen between the expiration of her Bridging Visa A (BVA) and the grant of her BVE. On the evidence before it the Tribunal finds that Mrs Faltas does not satisfy the requirements of s 22(1)(b), regardless of the fact that the issue in dispute is one day. It is well-settled that even a brief period of unlawfulness means that an applicant will not satisfy s 22(1)(b) of the Citizenship Act. The Minister’s representative argued that the unambiguous language of s 22(1)(b) makes it clear that the question posed by this section of the Citizenship Act is binary, a person was either in Australia lawfully or unlawfully and the Tribunal concurred with this view.
Therefore the critical issue before the Tribunal is whether Mrs Faltas remained in Australia as an unlawful non-citizen for one day because of an administrative error, which would enliven the Minister’s discretion in s 22(4A).
As the Tribunal can determine from the evidence, Mrs Faltas went into hospital on
15 February 2017 for a total knee replacement and was then transferred to rehabilitation on 18 February 2017 where she remained for some time. On 21 February 2017 Mrs Faltas’ BVA expired, and her son and then migration agent attended the Department of Home Affairs’ Melbourne office to apply for a BVE. The BVE was sought as their substantive visa applications (onshore protection) had been rejected and they were awaiting the outcome of a Ministerial intervention. The case officer issued Mr Said’s visa at the interview and then two days later issued Mrs Faltas’ visa following a site visit to Angliss hospital.
Applicant’s contentions
Mrs Faltas’ representative contended she became an unlawful non-citizen because of an administrative error. They argued that incorrect information provided by the case officer dealing with her BVE application caused her to be classified as an alleged unlawful resident. Mrs Faltas’ representative did not contest the Department’s decision to not classify her medical state as an administrative error, however, arguing that it was the incorrect and misleading information provided which gave rise to the claim of an administrative error.
Mrs Faltas’ representative contended the administrative errors made by the case officer caused a delay in the processing of her BVE which in turn caused her to not satisfy the necessary legal status requirements for the granting of citizenship by conferral.
The administrative errors contended by Mr Faltas’ representative were as follows:

(a) the case officer made mistakes and provided incorrect advice to the Applicant’s son and representative at the time; and
(b) the case officer made an incorrect statement via an email stating that in order to be granted a BVE the Applicant must be classified as unlawful.
Mrs Faltas’ representative contended that the administrative error was specifically regarding the representation made by the case officer stating that the BVE could not be granted without first seeing the client in person. Mrs Faltas’ representative claimed that in the meeting on 21 February 2017, attended by Mr Said and Mr Malek, the case officer stated that there would be no need for Mrs Faltas to attend in person and that a medical certificate was the only thing required to grant her BVE. This misled the attendees at the interview as they had been led to believe the interview criterion under r 2.25(3) of the 2016 Regulations had been waived, and that the case officer had granted Mrs Faltas a visa without requiring an in-person interview. Mrs Faltas’ representative drew the Tribunal’s attention to the decision of Chaudhary and Minister for Immigration and Citizenship (Chaudhary) where the member found the words “administrative error” should be interpreted as a mistake or error by the administrative arm of government which affects the lawfulness of the person’s residence in Australia.
Mrs Faltas’ representative contended that the administrative error was compounded when Mr Malek sent the requested medical certificate to the case officer, and received the following reply: “Sorry I forgot to mention that I need to see her”. They contended that had the case officer provided the correct information initially, Mr Said would have been able to organise transport for his mother from the hospital to attend the meeting. This would have allowed her to see the case officer in person on the day and her BVE would have been able to be granted on that day.
Mrs Faltas’ representative contended that the subsequent administrative error of the provision of incorrect information provided to the Applicant was misleading as she was not required to be an unlawful citizen for the purpose of granting the BVE. The representative argued this information was indeed incorrect. Mrs Faltas’ representative drew the Tribunal’s attention to a previous AAT decision of Farag and Minister for Immigration and Border Protection (Farag) arguing that in that case the Tribunal determined that the error may be the provision of incorrect information, including information which is misleading because it is incomplete.
Respondent’s contentions
At the outset the Minister’s representative believed it would be instructive to first set out the confines of what can be considered an administrative error. They noted the concept of an administrative error used in s 22(4A) of the Citizenship Act is broad, observing that the ordinary meaning of the term “error” is “a deviation from accuracy or correctness, a mistake” and the only qualification of the word error is that it be “administrative” in nature. They took the Tribunal to a different statutory context in the decision of Dranichnikov and Centrelink, where Hill J (with whom Kiefel and Hely JJ agreed) said of the term “administrative error” at [62]:
It is neither possible nor appropriate to attempt a meaning of the words “administrative error” which would accurately cover every case for much will turn upon the circumstances. Essentially, however, the concept is one where the error or mistake arises as a result of the procedure that has been adopted.
The Minister’s representative also cited Chaudhary, where Deputy President Handley said at [32]:
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 I 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.
The Ministers representative contended that there was no administrative error on the part of the case officer, nor any basis for the Tribunal to exercise the discretion under s 22(4A) of the Act, arguing that:
(a)Based on the email evidence, they accepted that Mrs Faltas’ agent met with a Departmental case officer on 21 February 2017 in relation to a BVE application for her, but that there is no independent evidence to support the assertion that the case officer stated that there was no need for Mrs Faltas to attend in person and a medical certificate was the only thing required for him to grant the BVE.
(b)In relation to the alleged incorrect statement that in order to be granted a BVE Mrs Faltas must be classified as unlawful, the Minister noted that the case officer stated that “anyone who comes into our space (Compliance) – MUST become unlawful to be granted a BVE.” The Minister contended that the discretion in s 22(4A) is not enlivened in the circumstances of this case. The Minister also contended that it was for Mrs Faltas to ensure she remained lawful in Australia and that her unlawfulness was a result of her own actions, or those of her migration agent, rather than any action taken by the Department.
(c)At the relevant time, Mrs Faltas was represented by a registered migration agent, Mr Malek. On the evidence provided on behalf of Mrs Faltas, Mr Malek attended the Department of Home Affairs' compliance office on 21 February 2017 with the intention of lodging a BVE application for the applicant. The Minister contends that the BVE application was misconceived to the extent it was relied upon in order to ensure Mrs Faltas would not become an unlawful non-citizen. As such, even if there was an administrative error (which was not conceded), it would not have been the cause of the applicant’s unlawful status.
(d)On 21 February 2017, Mrs Faltas did not meet the criteria to be granted a BVE and the case officer’s statement that in order to be granted the BVE, she had to become unlawful was not incorrect or misleading. To the extent the applicant argues that the statement was incorrect because an applicant can be granted the visa if they meet the criteria in cl 050.211(b)-(c) and as such is not required to be unlawful, in the applicant’s case she did not meet that criteria at the relevant time and as such the case officer was correct that she was required to become an unlawful non-citizen to be granted the BVE.
(e)The applicant asserted that the case officer made an incorrect statement that there would be no need for the applicant to attend in person and a medical certificate was the only thing required for him to grant the BVE. Mr Said also stated that the case officer indicated he would grant the applicant the BVE when they sent the medical certificate. The Minister noted that the applicant’s representative did not provide the medical certificate until 22 February 2017, at which point the applicant had already become an unlawful non-citizen.
(f)The applicant asserted that the case officer misled the attendees at the interview by purportedly waiving the interview criterion under r 2.25(3) of the 2016 Regulations, making them believe he granted her a visa without personally interviewing the applicant. Mr Malek stated that he was “under the impression that [the case officer] [was] exercising the power of Reg 2.25(3) and waiving the interview criterion”. The Minister submitted that r 2.25 did not apply to the applicant by virtue of r 2.25(1) and Mr Malek’s misunderstanding of the 2016 Regulations cannot be said to be an administrative error in the relevant sense.
(g)The applicant contended that the alleged administrative errors caused a delay in the processing of the BVE thereby causing her not to satisfy the necessary legal status required to satisfy the Citizenship requirements. A failure to grant the applicant’s BVE application on 21 February 2017 could only amount to an error if there was some obligation on the Department to process such applications on the same day. There is no such obligation in the Migration Act 1958 or the 2016 Regulations.
(h)It is relevant that the present case is not a case, for instance, where the applicant had filed her BVE application some days or weeks prior to the expiration of her BVA, which, due to some error on the part of the Department, remained undetermined. Rather, the evidence indicates that she applied for the BVE on the day on which her BVA was to expire. If there was no duty for the Department to process and grant her application on the same day on which it was lodged, it cannot be an “error” in the relevant sense; there was no deviation from accuracy or correctness, nor a mistake. In any event, the Policy at page 27 states that “a delay in processing an application does not constitute an administrative error in itself”. In circumstances where the Policy expressly states that delay in itself does not constitute administrative error, and it cannot be said that the Department delayed the applicant’s application by any significant amount of time, if at all, there can be no error in the relevant sense.
Was there an administrative error?

The Tribunal started from the premise that "administrative error" is not defined in the Citizenship Act but is canvassed in the Australian Citizenship Instructions which state that "administrative error" extends to "circumstances in which incorrect information is provided" and concurred with the Respondent’s view that the concept of “administrative error” was broad. Noting the often quoted statement of Deputy President Handley in Chaudhary at [32], the ordinary meaning of the words “administrative error” in the context of s 22 of the Citizenship 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. Additionally the Tribunal noted the correlation made by Deputy President J W Constance in Farag at [32]:
I agree with this statement but add that, in my view, the error may be the provision of incorrect information, including information which is misleading because it is incomplete. In this regard it is necessary to look to the words used in the statute. The only qualification of the word "error" is that it must be "administrative".
The Tribunal must assess if an administrative error or mistake, including provision of misleading or incorrect information, was made in respect of Mrs Faltas’ visa claim and, if so, whether this resulted in her being an unlawful non-citizen on 22 February 2017. The first claimed error was the Department’s provision of advice that Ms Faltas need not attend an interview and that instead that receipt of a medical certificate would suffice in order for her visa to be issued. The second claimed error was the Department’s provision of advice that Mrs Faltas needed to become an unlawful non-citizen in order to be granted the BVE.
The Minister claimed that Mrs Faltas made an error in leaving her application to the day her visa expired and should have had no expectation her visa would be granted on that day. Further, that her agent’s action in seeking a BVE on her behalf was misconceived especially if he was seeking to ensure Mrs Faltas would not become an unlawful non-citizen.
The Tribunal has found the Department’s lack of documentary evidence provided in this matter concerning, observing that the only evidence of the actual events from the Department is a scant email from the Department to Mrs Faltas’ children in May 2017 which they requested, this being a short compilation of the Department’s file notes and emails between the parties. No witness statement was provided by the Department to put the case officer’s view of the actual information provided during the interview of 21 February 2017. Whilst the Tribunal notes the Respondent may contend this is irrelevant, as the actions on the day did not lead to Mrs Faltas becoming a non-citizen by virtue of the 2016 Regulations, the Tribunal does not concur.
The Tribunal finds that an administrative error resulted in Mrs Faltas being an unlawful non-citizen on 22 February 2017 as the Department had provided misleading and incorrect information in respect of her requirement to attend an in-person interview. Additionally, as noted in Chaudhary at [36], the standard applied for determining when a course of conduct constitutes a mistake or error was whether the conduct concerned would be regarded as the “appropriate course for a responsible departmental officer”. In this case the evidence of Mrs Faltas, her son and previous agent would indicate that the Department had not adopted the responsible course or good administrative practice.
The Tribunal accepts, based on the evidence before it, that there had been a discussion at the interview on 21 February 2017 about the need for Mrs Faltas to attend an interview on that day, and that it had been conveyed to her son and previous agent that all that was required was to furnish a medical certificate indicating her incapacity to attend. The subsequent correspondence between all the parties indicates to the Tribunal that this was the result of those discussions and it did create the impression that the Department had waived the need to conduct an in-person interview for the BVE to be granted.
The Tribunal accepts the Department did not provide incorrect information in respect of the need for Mrs Faltas to be unlawful to be eligible to be granted a BVE, but finds the Department did not adopt an appropriate course of action by failing to highlight this requirement with Mrs Faltas’ son or agent during the interview on 21 February 2017. Whilst the Tribunal accepts it was Mrs Faltas’ agent’s responsibility to have appropriately informed his clients of the various visa requirements, it does appear to the Tribunal that the issue of citizenship was a significant concern raised at the interview. This indicates to the Tribunal that the Department should have, in accordance with good administrative practices, canvassed these concerns at the interview stage and not after the event in an email, where the error resulted in Mrs Faltas becoming a non-citizen. The Tribunal was at a loss to determine what visa was indeed open to Mrs Faltas at this time that would not result in her being an unlawful non-citizen, as from the evidence before the Tribunal the only option available to Mrs Faltas was a BVE, as she was awaiting a Ministerial Intervention outcome.
The Tribunal accepts that Mrs Faltas and her agent may have compounded the situation by not seeking to renew her visa before its expired date, but as there is no documentary evidence in respect of the sequence of events prior to the interview the Tribunal could not determine more on this point. The Tribunal observes that it would seem unlikely the interview was a result of a walk-up on the day. The Tribunal did note the fact Mr Said was granted his visa on the day of the interview, so it was possible that if the family had conveyed Mrs Faltas to the Department on that day a visa could have been issued.
The Tribunal accepts that Mrs Faltas’ previous agent was also a source of misleading information to his client, but that does not mitigate against the misformation and lack of information provided by the Department that constituted administrative error resulting in her being an unlawful non-citizen.
The Tribunal did not find the Department had deliberately mislead Mrs Faltas but that misleading information had been provided to her son and agent which led to an administrative error that resulted in her being a unlawful non-citizen. As such, Ministerial discretion should be exercised in accordance with s 22(4A) of the Citizenship Act.
DECISION
The decision under review is set aside and the matter is remitted to the Minister with the direction that the discretion in s 22(4A) of the Citizenship Act should be exercised in favour of Mrs Faltas to disregard the period 22 February 2017 when she was an unlawful non-citizen in Australia, and that Mrs Faltas therefore satisfies the general residence requirement referred to in s 22(1)(b) of the Citizenship Act.

I certify that the preceding 47 (forty-seven) paragraphs are a true copy of the reasons for the decision herein of Ms Anna Burke AO, Member.

.....[sgd]..............................................
Associate
Dated: 22 June 2020

Dates of hearing: 6 May 2020

Advocate for the Applicant: Mr Amir Awad

Solicitors for the Applicant: Xary Lawyers

Advocate for the Respondent: Ms Eleanor Elliott

Solicitors for the Respondent: Sparke Helmore Lawyers

[2020] AATA 1862

22 June 2020

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Procedural Fairness

Natural Justice

Statutory Construction

Remedies

Dates of hearing:	6 May 2020
Advocate for the Applicant:	Mr Amir Awad
Solicitors for the Applicant:	Xary Lawyers
Advocate for the Respondent:	Ms Eleanor Elliott
Solicitors for the Respondent:	Sparke Helmore Lawyers