Girgis Girgis and Minister for Immigration and Citizenship
[2013] AATA 481
[2013] AATA 481
Division GENERAL ADMINISTRATIVE DIVISION File Number(s)
2012/4934
Re
Girgis Girgis
APPLICANT
And
Minister for Immigration and Citizenship
RESPONDENT
DECISION
Tribunal Deputy President RP Handley
Date 9 July 2013 Place Sydney The decision under review is affirmed.
.............................[SGD]..........................
Deputy President RP Handley
CATCHWORDS
IMMIGRATION - citizenship – failure to meet general residence requirement – period of unlawful residence in Australia - whether Applicant was an unlawful non-citizen due to an administrative error - whether discretion to treat a person as lawful if unlawfully present – no discretion - decision affirmed
LEGISLATION
Australian Citizenship Act 2007 ss 21, 22, 24
CASES
Chaudhary and Minister for Immigration and Citizenship [2010] AATA 1006
Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634
Macdonald and Minister for Immigration and Citizenship [2012] AATA 733Sever and Minister for Immigration and Citizenship [2011] AATA 449
SECONDARY MATERIALS
Australian Citizenship Instructions
REASONS FOR DECISION
Deputy President RP Handley
Date: 9 July 2013
Mr Girgis has applied for a review of a decision of a delegate of the Minister for Immigration and Citizenship (the Minister) to refuse his application for Australian citizenship by conferral on the ground that Mr Girgis was present in Australia as an unlawful non-citizen from 17 September 2010 to 7 October 2010 and, as a result, did not meet the residence requirements for citizenship. The issue for the Tribunal is whether there is a discretion to disregard this period and, if so, whether the discretion should be exercised.
BACKGROUND
Mr Girgis was born in Egypt and is presently an Egyptian citizen. He arrived in Australia on 8 June 2008 holding a Vocational Education and Training Sector – Temporary Visa, issued on 22 April 2008 and expiring on 5 August 2008. On 5 August 2008, Mr Girgis was issued with a similar visa with an expiry date of 16 September 2010. Thereafter, Mr Girgis had no valid visa and was, therefore, an unlawful non-citizen until he was issued with a Bridging Visa C on 8 October 2010, expiring on 12 November 2010. Since then, Mr Girgis has been issued with further visas and is currently the holder of a protection visa permitting him to remain in Australia permanently.
On 30 July 2012, Mr Girgis made a valid application for Australian citizenship by conferral. By letter dated 17 October 2012, a delegate of the Minister notified Mr Girgis that his application for Australian citizenship had been refused because he did not meet the general residence requirement in s 22 of the Australian Citizenship Act 2007 (the Act) as a result of his being an unlawful non-citizen within four years of the date of his application.
On 1 November 2012, Mr Girgis applied to the Tribunal for a review of this decision.
RELEVANT LAW AND POLICY
Section 21(1) of the Act provides that a person may make an application to the Minister to become an Australian citizen. Section 24(1) states that if a person makes such an application, “the Minister must, by writing, approve or refuse to approve the person becoming an Australian citizen”. Section 21(2) states the general eligibility criteria which apply in Mr Girgis’ case:
(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.
The ‘general residence requirement’ referred to in s 21(2)(c) is set out in s 22(1):
(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.
Other subsections of s 22 provide a limited discretion in relation to strict adherence with the s 22(1) requirements. The only discretion that could potentially be relevant in Mr Girgis’ case is s 22(4A), which states:
(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.
The Australian Government has developed policy in the form of the Australian Citizenship Instructions (the Instructions) to provide guidance to decision makers. The introduction to the Instructions states that their role is:
… to support the Australian Citizenship Act 2007. The instructions provide guidance on policy in relation to the interpretation of, and the exercise of powers under, the Act and the Regulations. Decision makers should be mindful that policy must not be applied inflexibly. Policy cannot constrain the exercise of delegated powers under the Act.
Decision-makers should generally apply policy such as the Instructions unless the policy is unlawful or its application produces an unjust result in the circumstances of a particular case: Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634.
The Instructions provide relevantly:
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 2 parts, namely:
·there must be an 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 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, specific examples include the following:
othe applicant may have been granted a permanent visa but the decision maker accidentally recorded the grant of a temporary visa in ICSE
othe applicant was advised by the Department that they were a lawful non-citizen when in fact they were unlawful
othe 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 merits or administrative 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.
In order for this discretion to be applied, the onus is on the applicant to provide evidence that an administrative error has indeed 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. Advice can be sought from the Citizenship Help Desk, National Office.
ISSUES FOR THE TRIBUNAL
The first issue is whether Mr Girgis was an unlawful non-citizen from 17 September 2010 to 7 October 2010 because of an administrative error. If the answer to this question is ‘Yes’, the second issue is whether the discretion in s 22(4A) of the Act should be exercised in Mr Girgis’ favour.
MR GIRGIS’ CASE
Mr Girgis said that in September 2010 he was suffering from mental problems, about which he was seeing a psychologist, and, as a result, his visa expired without him realising this. However, Mr Girgis believed that he had another 28 days after the expiry of his visa within which he could apply for a new visa. This belief was derived from a letter he had received from the Department, from information on the Department’s website and from advice he received from migration agents.
Mr Girgis also provided the Tribunal with a copy of a Departmental form ‘Applying for a Student Visa’. On the last page of this form under the heading ‘Withdrawal of application’, the form states, referring to withdrawing an application for a further student visa in Australia:
You can withdraw your application in writing at any time before a decision is made. Any charges that you paid at the time you lodged your application are usually non-refundable.
If you applied for a student visa in Australia, you were most likely granted a bridging visa at the time you made your application. If you withdraw your application, that bridging visa will cease to be in effect 28 days after the date of withdrawal. As a result, you will become an unlawful non-citizen 28 days after the withdrawal if you have not departed Australia within that time and you do not hold another visa.
Mr Girgis said when he realised his visa had expired, he went to see a solicitor, Sam Issa, who told him not to worry and that he had 28 days within which to make an application for a new visa. He applied for a new visa within this time and his visa was granted.
Mr Girgis said if he had known that by allowing his visa to expire he would become an unlawful non-citizen after the expiry of his visa and before the end of the following 28 day period, he would have acted sooner. He was not aware of his being an unlawful non-citizen until he lodged his application for Australian citizenship. When he went to the Department’s office in Sydney and asked about the effect of applying for a new visa after his old visa had expired but within 28 days of its expiry, the officer to whom he spoke did not know what effect this might have. Mr Girgis feels it is unfair to refuse his application for citizenship because of being three weeks late in renewing his visa when this was within the 28 day period allowed for this.
DISCUSSION
The Respondent submits that there is no discretion in Mr Girgis’ case to disregard the period during which he was an unlawful non-citizen and, in particular, no ‘administrative error’ which would enliven the discretion in s 22(4A) of the Act.
The meaning of the words ‘administrative error’ have been discussed in a number of Tribunal decisions including by me in Chaudhary and Minister for Immigration and Citizenship [2010] AATA 1006, which I followed in Macdonald and Minister for Immigration and Citizenship [2012] AATA 733. In Chaudhary, at [32], I said:
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. 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 is 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.
A similar view was expressed in Sever and Minister for Immigration and Citizenship [2011] AATA 449, at [39]. Senior Member Redfern said, referring to the Instructions (quoted above):
This guidance, and the ordinary meaning of the words, suggests there will only be “administrative error” where there is error or mistake resulting from procedures adopted or implemented by the Department or others.
She said that a failure or an oversight by the applicant’s lawyers was not, in her view, an administrative error within the meaning of s 22(4A).
I am not satisfied from the evidence that there was an ‘administrative error’ within the meaning of those words in s 22(4A) in Mr Girgis’ case that caused him to become an unlawful non-citizen. I accept that he was suffering from mental problems at the time his visa expired on 16 September 2010, and he has provided a letter dated 3 May 2012 from a psychologist, Onsy Mattar, to substantiate this. However, there is no discretion in such an instance to disregard the period of Mr Girgis’ being an unlawful non-citizen.
Mr Girgis may also not have been aware of his status as an unlawful non-citizen after his visa expired and in the 28 day period during which he lodged an application for a new visa. However, this was not, in my view, the result of any administrative error by the Department. I understand that Mr Girgis may have been misled by the Departmental form ‘Applying for a Student Visa’ into believing that he would only become an unlawful citizen 28 days after the expiry of his visa. However, this form is about the withdrawal of an application for a further student visa where the application was made before the person’s existing visa had expired. This is a different situation to that of Mr Girgis who did not make an application for a further visa before his existing visa had expired and was not subsequently withdrawing an application.
I also note Mr Girgis’ evidence that when he asked a Departmental officer about the effect of his lodging his application for renewal after his visa had expired but within 28 days of its expiring, at the time that he lodged his application for citizenship, the officer did not know what effect this might have. While this is regrettable, it was not an administrative error that was the cause of his becoming an unlawful citizen which is what is required by s 22(4A).
Thus, there being no relevant administrative error, the discretion in s 22(4A) may not be exercised in Mr Girgis’ case. I understand that Mr Girgis will be upset by this outcome. However, there is no other relevant provision in the Act that permits the exercise of a discretion in his case. It should also be noted that it will be open to Mr Girgis to make a fresh application for citizenship, and it would appear that he may satisfy the general residence requirement in s 22(1) once a period of four years has passed since 8 October 2010, that is on 8 October 2014.
DECISION
The decision under review is affirmed. This means that Mr Girgis’ application to the Tribunal is unsuccessful.
I certify that the preceding 23 (twenty-three) paragraphs are a true copy of the reasons for the decision herein of Deputy President RP Handley. .................................[SGD]......................
Associate
Dated 9 July 2013
Date(s) of hearing 2 July 2013 Date final submissions received 2 July 2013 Applicant In person Advocate for the Respondent L Weston, solicitor Solicitors for the Respondent Minter Ellison
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