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

This matter concerned an appeal by Mrs Faltas against the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs' refusal to grant her Australian citizenship by conferral. The central dispute revolved around whether Mrs Faltas met the general residence requirement stipulated in section 22(1)(b) of the *Citizenship Act 1948* (Cth) at the time of her application, specifically whether she was an unlawful non-citizen in Australia during the relevant four-year period. The Administrative Appeals Tribunal (AAT) was tasked with determining this issue and considering whether Ministerial discretion could be exercised to overcome any period of unlawful status.

The legal issues before the Tribunal were twofold: firstly, whether Mrs Faltas satisfied the "general residence requirement" under section 22(1)(b) of the *Citizenship Act* at the time of her citizenship application; and secondly, if she did not, whether the Minister could exercise discretion under section 22(4A) of the Act, which allows for the period of unlawful non-citizenship to be disregarded if it was due to an administrative error. Section 21(2) of the Act outlines the general eligibility criteria for citizenship, including the satisfaction of the general residence requirement as defined in section 22. Section 22(1)(b) explicitly states that an applicant must not have been present in Australia as an unlawful non-citizen during the four-year period preceding their application.

The Tribunal found that Mrs Faltas did not strictly satisfy section 22(1)(b) of the *Citizenship Act* because she was present in Australia as an unlawful non-citizen for a period on 22 February 2017, between the expiry of one bridging visa and the grant of another. The Tribunal noted that even a brief period of unlawfulness ordinarily prevents an applicant from meeting this requirement. However, the Tribunal also found that misleading information provided to Mrs Faltas's son and migration agent, which resulted in an administrative error leading to her unlawful status, meant that Ministerial discretion under section 22(4A) should be exercised in her favour.

Consequently, the Tribunal set aside the decision under review and remitted the matter to the Minister with a direction that the discretion under section 22(4A) of the *Citizenship Act* be exercised to disregard the period of unlawful non-citizenship on 22 February 2017. This enabled Mrs Faltas to be considered as satisfying the general residence requirement for the purposes of her citizenship application.