HBTG and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Citizenship)
[2022] AATA 260
•15 February 2022
HBTG and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Citizenship) [2022] AATA 260 (15 February 2022)
Division:GENERAL DIVISION
File Number(s): 2021/3954
Re:HBTG
APPLICANT
AndMinister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
RESPONDENT
DECISION
Tribunal:Chris Puplick AM, Senior Member
Date:15 February 2022
Place:Sydney
The decision under review is affirmed.
..............................[sgd].......................................
Chris Puplick AM, Senior Member
CATCHWORDS
CITIZENSHIP – refusal of a citizenship application – where the applicant does not satisfy the 12-month residence requirement – whether the decision-maker should use its discretion to treat a period of time as one where the applicant was resident – whether the applicant would have satisfied the 12-month residence requirement but for an administrative error – no administrative error – possible error by professional peak body – whether the applicant would suffer significant hardship or disadvantage as a result of not being considered a resident for a period – no significant hardship or disadvantage – decision affirmed
LEGISLATION
AUSTRALIAN CITIZENSHIP ACT 2007 (CTH) SS 21, 23A, 24 AND 26
MIGRATION ACT 1958 (CTH)
Migration Regulations 1994 (Cth) schs 2 and 6D
Social Security Act 1991 (Cth) s 593
CASES
BTJ21 V MINISTER FOR HOME AFFAIRS (NO 2) [2022] FCA 24
CHAUDHARY AND MINISTER FOR IMMIGRATION AND CITIZENSHIP [2010] AATA 1006
CHIRENDA AND MINISTER FOR IMMIGRATION AND BORDER PROTECTION [2015] AATA 64
DAINTY AND MINISTER FOR IMMIGRATION AND ETHNIC AFFAIRS (1987) 12 ALD 416
DRAKE AND MINISTER FOR IMMIGRATION AND ETHNIC AFFAIRS (NO 2) (1979) 2 ALD 634
GOLDIE V MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS (2002) 121 FCR 383
MACDONALD AND MINISTER FOR IMMIGRATION AND CITIZENSHIP [2012] AATA 733
MARTINDALE AND MINISTER FOR IMMIGRATION AND BORDER PROTECTION [2017] AATA 2554
PARK AND MINISTER FOR IMMIGRATION AND CITIZENSHIP [2010] AATA 886
PARKER V MINISTER FOR IMMIGRATION AND BORDER PROTECTION (2016) 247 FCR 500
Petrovski v Minister for Immigration and Ethnic Affairs (1996) 67 FCR 531
SECONDARY MATERIALS
CPI 8 – Residence Requirements and Discretions
CPI 12 – Assessing significant hardship, disadvantage or detriment for the purposes of Australian citizenship
Department of Home Affairs, Citizenship processing times: < Australia, A Guide to Australian Government Payments (1 January 2022 to 19 March 2022)
REASONS FOR DECISION
Chris Puplick AM, Senior Member
15 February 2022
PROCEEDINGS
HBTG (the Applicant) is a citizen of the Islamic Republic of Tehran who is seeking to acquire Australian citizenship by conferral.
The Applicant first arrived in Australia on 12 September 2016 as the holder of a Skilled – Recognised Graduate (Subclass 476) visa and subsequently was granted a permanent Skilled – Independent (Subclass 189) visa on 11 February 2021.
His application for citizenship was lodged just four days later, on 15 February 2021 but refused by a Delegate of the Minister (the Respondent) on 15 May 2021.
On 11 June 2021 the Applicant applied to this Tribunal for a review of that refusal decision and the matter was heard on 27 January 2022 using the Microsoft Teams platform and in accordance with the Tribunal’s COVID-19 protocols.
There was an assertion made in the Respondent’s Statement of Facts, Issues and Contentions (SFIC) which was challenged by the Applicant as to its accuracy. At the conclusion of the hearing the Respondent was directed by the Tribunal to provide a further written submission (by 31 January 2022) which, in effect conceded that the claim in the SFIC was indeed inaccurate. The Applicant was given until 3 February 2022 to make his own further submission in response thereto and did so. The Tribunal took these further submissions into consideration in making its final determination.
RESPONDENT’S POSITION
The basis of the refusal of the application was the Delegate’s finding that the Applicant did not meet a specific requirement (paragraph 22(1)(c)) of the Australian Citizenship Act 2007 (Cth) (the Act) which requires that an applicant be a permanent resident of Australia for a period of 12 months prior to the lodging of any such application.
Summary: The passage of time
The Applicant is seeking is citizenship by conferral. What the Respondent is asserting is that the Applicant’s application was refused because he did not have 12 months residency at the time of the application.
As he was granted permanent residency on 11 February 2021 that 12-month period will conclude by 12 February 2022, that is 16 days after the date of the Tribunal hearing and just 8 days after the date approved for final submissions. On that date the requirements of paragraph 22(1)(c) of the Act will be met.
An antecedent case
On 23 May 2018 the Applicant was invited to apply for a Skilled – Independent (Subclass 189) visa under the relevant provisions of the Migration Act 1958 (Cth). He applied on that date. The granting of such a visa depends upon an applicant meeting to requirements of a “points test” which are set out in the Migration Regulations 1994 (Cth).
On 21 September 2018 a Delegate of the Minister refused to grant the Subclass 189 visa on the basis that the Applicant did not satisfy the requirements of the points test.
The Applicant appealed that decision to the Migration and Refugee Division of this Tribunal (MRD) which, on 23 September 2020 set aside the Delegate’s decision and directed that the Applicant was to be taken as having satisfied the requirements of the points test.[1]
[1] Tribunal documents (T-documents) at 32-39.
The Subclass 189 visa was thereafter granted on 11 February 2021.
LEGISLATIVE FRAMEWORK
The Act provides that a person may make an application to the Minister for citizenship by conferral.[2] The Minister must either approve or refuse the application.[3]
[2] Act s 21(1).
[3] Act s 24(1).
An applicant must meet certain qualifications as specified in the Act[4] and, if they do, they must then undertake and pass the Citizenship Test[5] (unless they are exempted from so doing).[6] Once that is complete, a qualified applicant must make the Pledge of Commitment[7] (unless they are exempted from so doing) before their citizenship is finally granted.
[4] Act s 21(2).
[5] Act s 23A.
[6] Act ss 21(3)(d), (4)-(8).
[7] Act s 26.
There are also certain other constraints on the Minister’s power to grant citizenship which touch upon matters of national security, residential status and breaches of the law.[8] None of which is relevant in this present application.
[8] Act ss 24(4)-(6).
In order to qualify for citizenship by conferral an applicant must satisfy a number of requirements which are set out in subsection 21(2) of the Act. The qualifying criteria are enumerated in paragraphs 21(2)(a) to (h).
(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.
Paragraph 21(2)(c) references section 22 of the Act which provides:[9]
22 General residence requirement
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.
[9] Sections 22A, 22B and 23 of the Act are not relevant in these proceedings.
There is no contesting the fact that the Applicant meets the requirements of paragraphs 22(1)(a) and (b).[10]
[10] T-documents at 87-88.
Returning to subsection 21(2), in this instance the Delegate was satisfied the Applicant met the requirements of paragraphs (a) and (b) but not paragraph (c). Having reached that point the Delegate did not then proceed to assess the remaining paragraphs (d) to (h).
It should be noted that in the event this Tribunal sets aside the decision in relation to residential qualifications, all it can do is remit the matter to the Department with an instruction relating to that paragraph (c) qualification because the other criteria in subsection 21(2) remain to be assessed.
The discretionary power of the Minister to set aside the provisions of paragraph 21(2)(c) are to be found in subsections 22(5) and 22(6) of the Act which provide (emphasis added):
(5) For the purposes of paragraph (1)(c), the Minister may treat a period as one in which the person was present in Australia as a permanent resident if the Minister considers the person was present in Australia during that period but, because of an administrative error, was not a permanent resident during that period.
(6) For the purposes of paragraph (1)(c), the Minister may treat a period as one in which the person was present in Australia as a permanent resident if:
(a) the person was present in Australia during that period (except as a permanent resident or an unlawful non-citizen); and
(b) the Minister is satisfied that the person will suffer significant hardship or disadvantage if that period were not treated as one during which the person was present in Australia as a permanent resident.
THE CITIZENSHIP POLICY STATEMENT AND THE CPIS
In deciding whether or not an applicant satisfies the criteria in subsection 21(2), a decision-maker must have regard to the Act, the Australian Citizenship Policy Statement (Citizenship Policy Statement) and the Citizenship Procedural Instructions (CPIs).
The Citizenship Policy Statement came into effect as of 27 November 2020, replacing the previous Citizenship Policy document. Relevant to this matter, CPI 8 deals with matters of citizenship by conferral related to “Residence Requirements and Discretions”.[11]
[11] CPI 8 – Residence Requirements and Discretions (CPI 8).
The Tribunal notes that the Citizenship Policy Statement and CPIs have been published by the government as a guide to decision-makers in the interpretation of, and exercise of powers under, the Act. The role of such policy is as an indicative guide only and the Tribunal is not strictly bound to apply it. Although the Tribunal is not bound to apply it, it is government policy, and the Tribunal should consider it if it is consistent with the Act and unless there are cogent reasons not to do so.[12]
[12] Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634at 640.
APPLICANT’S POSITION
The Applicant contends that the Minister should use his discretion under subsection 22(5) of the Act to override the provisions of paragraph 22(1)(c) and accept that the Applicant’s period of permanent residency commenced in 23 September 2020,[13] being the date of the Tribunal’s decision which led to the grant of his Subclass 189 visa. He does so on the basis that the 2018 decision to refuse his visa application resulted from an “administrative error” on the part of the Respondent.
[13] Applicant’s submission dated 22 September 2021.
The Applicant claims that, but for this “administrative error” in the determination of his May 2018 application for the Subclass 189 visa, he would have attained the status of permanent residency in 2018 and hence would have satisfied the 12-month requirement of paragraph 21(2)(c) of the Act.
In the alternative, he seeks to have the Minister exercise a similar discretion under subsection 22(6) of the Act on the basis that not treating the period beginning September 2020 as one where the Applicant was a permanent resident (and the resulting refusal of his citizenship application) is subjecting him to significant harm or disadvantage.
A subsequent submission by the Applicant gives a different proposed date for the proposed commencement of his citizenship, namely 2 October 2018.[14] In his evidence to the Tribunal the Applicant indicated that this date reflected his understanding of needing a four-year period of residency to qualify under the Act for certain social security entitlements (see paragraph 71 of this decision).
[14] Applicant’s submission dated 13 December 2021.
It is on this basis that the Tribunal has proceeded to consider the application.
ADMINISTRATIVE ERROR: SUBSECTION 22(5)
Consideration of the Applicant’s claims leads back to a re-examination of the decision-making process involved in the Delegate’s determination of September 2018 to refuse the Applicant’s Subclass 189 visa application.
The Applicant possesses significant qualifications and experience working in the area of computer technology and software engineering. Assessment of his claim required, among other things, assessment of his educational qualifications and his relevant overseas working experience.
In order to be granted such a visa any applicant must be assessed on a points score as provided by schedule 2 paragraph 189.224 of the Migration Regulations. The exact details of this system do not need to be explicated in detail, suffice to say that the applicant was, in this instance, required to attain a score of 75 points.
The Delegate’s assessment awarded the Applicant 65 points and thus determined that his application had failed.[15]
[15] T-documents at 16-17.
When the matter was reconsidered by the Tribunal on 23 September 2020 its assessment was that the Applicant should have been awarded 80 points and thus qualified.[16]
[16] Ibid at 38.
The difference in the two assessments relates to two of the specified criteria:
(a)overseas employment experience: for which the Delegate awarded 5 points and the Tribunal 15 points, and
(b)educational qualifications: for which the Delegate awarded 10 points and the Tribunal awarded 15 points.
In making their assessment of the Applicant’s overseas employment experience, one of the documents submitted by the Applicant, and taken into account by the Delegate was “a skills assessment issued from ACS (Australian Computer Society) Reference: A-197356, dated 26 October 2017.”[17]
[17] Ibid at 20.
The AAT in its determination notes:
14. The applicant provided documents at the time of application indicating he had worked for [MHA] in Iran from June 2006 to August 2016, and from January 2018 to June 2018 as a Software Engineer. A work reference was provided and, in addition, a favourable skills assessment from Australian Computer Society (ACS), as specified in the relevant instrument for the nominated occupation, dated 18 September 2017 and valid for 24 months. The applicant has provided the Tribunal with a further favourable skills assessment from ACS, dated 8 October 2018, also valid for 24 months; that is, to 8 October 2020.[18]
[18] Ibid at 34.
What is important in this passage, and what was confirmed by the Applicant in his oral evidence, was that the Applicant himself provided the ACS document of 18 September 2017.
It was with consideration of this submission that, on this criterion the Delegate made an award of 5 points.
At some later – the document is undated but apparently was received on or about 8 October 2018 – the Australian Computer Society issued a letter, over the signature of Paul Skills (Operations Manager) in the following terms:
“Dear [HBTG]
I am writing to you in relation to your assessment letter A-197356. This email is in response to adjusting an administrative error.
·ACS had an oversight in assessment A-197356, dated 23/10/2017 due to which [HBTG’s]… Bachelor's Degree in Information Technology Engineering from [ASM] University, Iran was assessed as comparable to AQF Associate degree.
·This was later corrected in the subsequent assessment A-241217, carried out on 07/10/2018. The correction had resulted in a suitable skills assessment under ANZSCO occupation 261313 (Software Engineer)
·Please be advised our assessments remain valid for 24 months from the date of assessments.
Please advise if you require any other details”.[19]
[19] Attachment to Applicant’s submission dated 13 December 2021.
This information was clearly before the Tribunal as noted above because at paragraph 15 of its September 2020 decision it states:
On the basis of the evidence provided by the applicant, the Tribunal is satisfied that he was employed outside Australia in the nominated skilled occupation of Software Engineer (ANZSCO 261313). Relying on and giving weight to the finding expressed in the ACS skills assessment in this applicant’s case, the Tribunal is satisfied that the applicant’s overseas employment, with [MHA], after June 2012, equates to work at an appropriately skilled level relevant to the nominated occupation of Software Engineer (ANZSCO 261313), or more than 60 months in the 10 years immediately before the date of the invitation to apply for the visa, 23 May 2018.[20]
[20] T-documents at 34.
It was on the basis of “[r]elying on and giving weight to the finding expressed in the ACS skills assessment” that the Tribunal awarded the Applicant 15 points on this criterion.
The gravamen of the Applicant’s case is thus to the effect that had the correct ACS assessment been before the Delegate they would have awarded 15 points and not 5 points on this criterion. This (regardless of the educational qualifications criterion) would have given the Applicant an overall score of 75 points which would have satisfied the requirements for the grant of the Subclass 189 visa he applied for in May 2018.
In its SFIC the Respondent in effect claims that the decision of the Tribunal in awarding 15 points for the overseas qualification was in error and argues in respect of the employment qualification, that no administrative error was made by the Delegate in its original decision.[21]
[21] See discussion at paragraphs [59] to [66] below.
To examine this claim the Tribunal must start with the provisions of Part 6D.3 of the Migration Regulations which set out the criteria for the awarding of points in the “Overseas employment experience” criterion:
Overseas employment experience qualifications
Number of points
At the time of invitation to apply for the visa, the applicant had been employed outside Australia in:
(a) the applicant's nominated skilled occupation; or
(b) a closely related skilled occupation;
for a period totalling at least 36 months in the 10 years immediately before that time.
5
At the time of invitation to apply for the visa, the applicant had been employed outside Australia in
(a) the applicant's nominated skilled occupation; or
(b) a closely related skilled occupation;
for a period totalling at least 60 months in the 10 years immediately before that time.
10
At the time of invitation to apply for the visa, the applicant had been employed outside Australia in
(a) the applicant's nominated skilled occupation; or
(b) a closely related skilled occupation
for a period totalling at least 96 months in the 10 years immediately before that time.[22]
15
[22] Table in Migration Regulations 1994 (Cth) sch 6D reproduced.
The Respondent then claims as follows:[23]
“26. Relevantly, the delegate awarded 5 points to the applicant for his overseas employment experience. In order to be awarded 5 points, the applicant must have been employed outside Australia in his nominated skill occupation for 36 months in the 10 years prior to being invited to apply for the visa.
…
29. In its decision dated 24 September 2020, the Tribunal assessed the applicant’s circumstances and attributed 80 points in total for the permanent visa. As this score was above the 75 points required by the Regulations and the Act, the Tribunal remitted the matter back to the delegate for reconsideration on the basis that the applicant should be granted the permanent visa.
30. The Tribunal awarded the applicant 15 points for his overseas employment experience, which is 10 more points than that granted by the delegate. The Tribunal considered the applicant’s evidence that he had worked for [MHA] in Iran from June 2006 to August 2016 (when he arrived in Australia) and again from January 2018 to June 2018 (although based on the applicant’s travel movement records the applicant was in Australia during that time. The Tribunal also accepted the skills assessment provided by the Australian Computer Society, and was satisfied that the applicant’s overseas employment with [MHA] after June 2012 equates to 60 months in the 10 years prior to the date the applicant was invited to apply for the visa, being 23 May 2018:
31. The period between the applicant’s recognised start date for his overseas employment (June 2012) and his arrival in Australia (August 2016) is 50 months. Even if it is accepted that the applicant worked for [MHA] between January 2018 and June 2018, the total number of months worked still falls short of the 60 months required to attain 15 points. As such, the delegate’s decision to grant 10 points for the applicant’s overseas employment experience was the correct finding, and no error (administrative or otherwise) has been made by the Department.
32. The Tribunal also awarded 15 points for the applicant’s education, which differs from the 10 points awarded by the delegate. The Tribunal considered a further skills assessment from the Australian Computer Society dated 8 October 2018 in its decision to grant 15 points. The delegate’s decision pre-dates the skills assessment dated 8 October 2018. It was therefore open to the delegate on the evidence before him to award 10 points for the applicant’s education, and no error (administrative or otherwise) was made in this respect.”
[23] Citations omitted.
There is of course an obvious error in this submission at paragraph 31 where the Respondent claims the Delegate awarded 10 points on the overseas employment criterion and not 5 points as rightly noted at paragraph 26. The Respondent also erred in suggesting that 60 months of overseas employment would qualify the Applicant to receive 15 points, however both errors were corrected by the Respondent in oral submissions to the Tribunal.
Regardless of this, the Respondent’s submission amounts to a claim that the Tribunal was incorrect in its calculations and assessment. If this was the case it seems hard to explain why the Department then acted to grant the Applicant a Subclass 189 visa based on the Tribunal’s direction rather than appeal that decision as being in error.
However, for the purposes of this application, that is a matter which it is not necessary for the Tribunal to resolve.
CPI 8 (at 3.3) states:
“For the purposes of paragraph 22(1)(c) of the Act, the Minister may treat a period as one in which the person was present in Australia as a permanent resident if the Minister considers the person was present in Australia during that period but, because of an administrative error, was not a permanent resident during that period.”
For the purposes of subsection 22(5) of the Act, it is accepted that an administrative error must be the root cause of an erroneous decision (here, one which prevented the Applicant from potentially becoming a permanent resident. However, CPI 8 makes it clear that a court or tribunal, by simply setting aside the erroneous decision, does not necessarily establish that the root cause was an administrative error as defined.[24]
[24] CPI 8 at 3.3; Respondent’s SFIC at [24].
The Tribunal accepts that there was an error on the part of the Australian Computer Society in that they provided to the Department an assessment which undervalued the Applicant’s qualifications which may have been a material factor in the Delegate awarding the Applicant fewer points than might otherwise have been justified.
Strictly speaking, the error on the part of the ACS was not an “administrative” error – it was an error of fact. An administrative error is basically a failure of process, not an error of fact.
The authorities establish that the term “administrative error” is one capable of wide and often divergent meaning. In Goldie, Carr J held that, in consideration of matters under the Administrative Appeals Tribunal Act 1975 (Cth):
I would construe the word ‘error’ as including administrative error but extending beyond mere administrative error.[25]
[25] Goldie v Minister for Immigration and Multicultural Affairs (2002) 121 FCR 383 at [73].
Deputy President Handley addressed the issue directly in relation to section 22 of the Act, saying:
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.[26]
[26] Chaudhary and Minister for Immigration and Citizenship [2010] AATA 1006 at [32].
The Applicant in his submission relies upon the last words of that paragraph, “although not necessarily by the Department itself”[27] to suggest that the error of the ACS was an administrative error but he fails to understand that the error must still be made by “the administrative or executive arm of government”. Although it is not entirely clear what may be encompassed in that description, it manifestly does not include the Australian Computer Society.
[27] Applicant’s submission of 13 December 2021 referencing the quotation of the Chaudhary decision in Macdonald and Minister for Immigration and Citizenship [2012] AATA 733.
In part, the Applicant himself recognises this distinction between the error of the ACS and the determination made by the Delegate in his visa refusal decision when he writes in his Statement of 13 December 2021:
“…my visa application for permanent residency was refused due to an administrative error of the Australian Computer Society.”
In his further submission by email dated 3 February 2022 he again recognises:
“I have been suffering dramatically for nearly four years since my visa was rejected in 2018 due to an administrative error by the Australian Computer Society and an immediate visa rejection by the department.”
Even if the original Delegate had before them the amended statement of the ACS and awarded the Applicant 15 rather than 10 points for the education criterion, there is no guarantee that they would have come to the same conclusion as the Tribunal in awarding 15 points rather than 5 points on the other contested issue, the overseas employment criterion. Had they not, this would still have resulted in the Applicant only scoring 70 out of the 75 points required.
The Applicant has not suggested that there was any “administrative error” arising from the award of 0 points on the specialist educational qualifications, and it does not appear that the Delegate referenced the ACS document in making their assessment on this criterion.[28]
[28] T-documents at 26-27.
Again, this is not a matter for the Tribunal to seek to resolve or determine.
It is also clearly the case that the Delegate relied upon a document from the ACS as it was provided by the Applicant. The Respondent was entitled to take this at face value and had no obligation to seek further information from the ACS or to call into question the validity of accuracy of its submission. Whether or not the Applicant was aware of the “administrative error” of the ACS in its submission of 18 September 2017 or only became aware of it at a later date (presumably after reading the reasons for rejection) is moot point. The Respondent acted, in good faith, at the time of decision-making, upon what the Applicant submitted.
In a somewhat analogous situation, the Court has held that even where an initial decision or assessment is overturned on appeal by a superior court, the issue to be determined is the correctness of the decision made in the first instance on the basis of the information before the primary decision-maker [29] and whether or not the “exercise of power miscarried at the time of its exercise”.[30]
[29] BTJ21 v Minister for Home Affairs (No 2) [2022] FCA 24.
[30] Parker v Minister for Immigration and Border Protection (2016) 247 FCR 500 at [77] per Mortimer J.
In this instance the decision-maker at the time had every reason to assign the points score as they did on the basis of the information supplied primarily by the Applicant.
Thus, it cannot be demonstrated that there was any “administrative error” on the part of the Respondent leading to the refusal of the Subclass 189 visa, and hence the potential commencement of permanent residency, in 2018.
In the absence of administrative error on the part of the original decision-maker there is no basis for the exercise of Ministerial discretion under subsection 22(5) of the Act.
SIGNIFICANT HARDSHIP OR DISADVANTAGE: SUBSECTION 22(6)
CPI 8 states:
“Under subsection 22(6) of the Act, periods of lawful residence, other than permanent residence, can be treated as periods of permanent residence for the purpose of meeting the 12 month permanent resident requirement if the applicant can demonstrate that they would suffer significant hardship or disadvantage if those periods were not treated as periods of permanent residence.
Applicants seeking the exercise of this discretion must provide a supporting statement concerning the significant hardship or disadvantage that they would suffer if the discretion was not exercised.”
The Applicant has submitted that he faces significant hardship if the discretion available in subsection 22(6) is not exercised in relation to the facts that:
·as a permanent resident, he is ineligible to seek assistance from the First Home Loan Deposit Scheme when purchasing a property;
·as a permanent resident of less than 12 months, he is unable to claim social security benefits;
·as a permanent resident, he is unable to access HECS-HELP; and
·as a permanent resident, he has been unable to obtain employment due to a requirement that he be an Australian citizen.
These matters should be considered with some care to determine if they establish a degree of “hardship” or “disadvantage” which would enliven the exercise of discretion under subsection 22(6) of the Act.
Home Loan Deposit Scheme:
On 12 February 2022 the Applicant will qualify for access to this scheme on the basis of his permanent resident status. Furthermore, his ability to meet any other of its requirements is a matter entirely independent from this application.
Social Security benefits:
In his application for review in this Tribunal the Applicant wrote:
“Granting my citizenship is of critical importance for me. After five years of work in Australia, I lost my job due to the pandemic. Sadly, now that I need the Centrelink support, they say I need to wait for a year after my PR date to be eligible for the benefits while this one year could already be passed in 2019 if my visa was not refused for a reason that was out of my control.”[31]
[31] T-documents at 5.
In its SFIC, the Respondent asserts that the Applicant is eligible for social security payments,[32] including Jobseeker payments because he holds a permanent resident visa and resides in Australia.[33] Specifically, the Respondent asserts (citations omitted):
“45. …Section 593(1)(g)(ii) of the Social Security Act 1991 provides that, in order to qualify for Jobseeker (which is presumably the payment the applicant would be seeking), a person must be an Australian resident or is exempt from the residence requirement within the meaning of subsection 7(7). Section 7(2)(a) and s 7(2)(b)(ii) provide that an Australian resident is a person who resides in Australia and is the holder of a permanent visa.
46. The applicant continues to hold his permanent visa. There is therefore no impediment to him applying for a social security benefit if he has lost employment due to the COVID-19 pandemic.”
[32] Social Security Act 1991 (Cth) s 593(1)(g)(ii).
[33] Respondent’s SFIC at 45.
On the other hand, the Applicant has provided a letter from Centrelink dated 27 April 2021 which states, inter alia:
“We cannot pay you JobSeeker Payment because you must have been in Australia as an Australian resident for four years to meet the residence requirements of this payment.”
The current Guide to Australian Government Payments states, in relation to JobSeeker “Residence requirements”, inter alia:
·the applicant must be an Australian resident; and
·Jobseeker is available to newly arrived migrants after 208 weeks in Australia as an Australian resident (some exemptions may apply).[34]
[34] Services Australia, A Guide to Australian Government Payments (1 January 2022 to 19 March 2022) at 23.
The Applicant’s travel record shows an initial arrival in Australia in September 2016; thereafter four trips out of the country for relatively shorts periods of time;[35] and no departures since his last arrival on 27 August 2019.
[35] T-documents at 78-88.
The response of Centrelink is also curious when viewed against the concession by the Respondent that the Applicant has the necessary four years’ residence in Australia as required by paragraph 22(1)(a) of the Act.
In order to resolve what appears to be something of a dilemma here the Tribunal requested the Respondent to provide a further submission in relation to the Applicant’s qualification for the receipt of JobSeeker or other social security benefits. This helpful submission was received on 31 January 2022. In this submission the Respondent examined the provisions of social security legislation as it relates to “Australian residents” who are not citizens and conceded that:
“The consequence of the above is that the applicant would be the subject of a waiting period from the date he was granted his permanent visa (i.e. 11 February 2021 until at least 6 February 2025). He would not be eligible for job seeker during that period.”[36]
[36] Respondent’s Further Written Submissions dated 31 January 2022 at [8].
In other words, the Applicant’s original submission on this point was correct and the Respondent’s SFIC was in error.
Nevertheless, the problem facing the Applicant is that while he may currently be unemployed (as was his submission and as he submitted in his JobSeeker application) there is nothing to suggest that he is incapable of finding a job and not needing to rely on social security payments. In this respect there is nothing particularly special or unusual about the Applicant’s position, and in that respect, nor does the level of hardship amount to being significant.
Access to HECS-HELP:
There is no doubt that it would be of benefit to the Applicant were he able to obtain a student loan (available only to citizens) to offset the cost of any course in which he might be contemplating enrolment, namely a part-time PhD.[37] This matter has been considered in prior decisions of the Tribunal. In Park the Tribunal concluded:
However, the fact that it would be financially advantageous for her [the applicant) to acquire citizenship – because she would be eligible for a secondary school scholarship and would not have to pay higher university fees as an overseas student – is not very unusual or exceptional and it is not a reason to confer citizenship.[38]
[37] Applicant’s Submission dated 22 September 2021.
[38] Park and Minister for Immigration and Citizenship [2010] AATA 886 at [29].
Citing this decision, in Chirenda the Tribunal concluded in similar terms:
Mr Chirenda points to his ineligibility for a university HECS-HELP loan as a form of hardship that he will suffer if he is refused Australian citizenship. The fact that it would be financially advantageous if Mr Chirenda could acquire Australian citizenship, including because he would not have to pay the higher university fees applicable to overseas (non-citizen) students, is not unusual or exceptional amongst applicants for Australian citizenship and is not, by itself, a reason to confer citizenship.[39]
[39] Chirenda and Minister for Immigration and Border Protection [2015] AATA 64 at [38].
The Applicant’s disadvantage in this regard may be relatively short-term given that on 12 February 2022 he meets the residency requirements of the Act and it is then a matter of how long the processing of his application for citizenship takes.[40] In the words of the Respondent’s SFIC:
“The applicant has not provided evidence to show that he will suffer hardship if he waits mere weeks to apply for HECS-HELP, when it appears that he will qualify for citizenship.”[41]
[40] The current application before the Tribunal took three months to assess being lodged on 15 February 2021 and refused on 15 May 2021.
[41] Respondent’s SFIC at 49.
Barrier to obtaining employment:
The Tribunal recognises that there are many jobs in which the holding of Australian citizenship is a necessary qualification. It may also be the case that in the Applicant’s specialist field of computers and software development some of those positions require an Australian government security clearance not available to non-citizens. The Applicant has supplied evidence of jobs for which he might have applied and been qualified had he been an Australian citizen.
These are not however, the only jobs in the market and the Respondent has provided a comprehensive list of positions in the Applicant’s preferred field of employment and consonant with his qualifications which do not require Australian citizenship.[42] It is also noted that the two examples provided by the Applicant himself, of jobs he might have considered applying for, are jobs (at KPMG and IBM) neither of which actually require Australian citizenship as a prerequisite. The IBM position rates it as “highly desirable” and the KPMG position requires it as an alternative to being able to obtain a “government security clearance.”
[42] Respondent’s Tender Bundle at 1-20.
Again, with reference to both Park and Chirenda the Tribunal in Martindale stated:
(29) In other cases the Tribunal has found there was no “significant hardship or disadvantage” where:
(a) alternative employment was available;
(b) an applicant’s desires were personal wants and work aspirations, rather than a personal need;
(c) there was no financial hardship; and
(d) it would simply be financially advantageous to acquire citizenship.[43]
[43] Martindale and Minister for Immigration and Border Protection [2017] AATA 2554 at [29]. Citations omitted.
Discussion of Hardship or Disadvantage
CPI 8 (at 3.3) directs a decision-maker, in relation to assessing matters of hardship or disadvantage/detriment to consider the definitions in CPI 12[44] that state that “[t]he hardship or disadvantage/detriment must be significant and of consequence to the person”.
[44] CPI 12 – Assessing significant hardship, disadvantage or detriment for the purposes of Australian citizenship.
The qualifying adjective “significant” is important. Naturally, the term is not defined in the Act or the CPIs. However, examples are given of “common scenarios” regarding examples of hardship, including:
“The person claims they cannot access educational opportunities until they become an Australian citizen.
For example, the person claims they will not be able to afford to pay the higher fees imposed on some non-citizens and will suffer significant hardship or disadvantage as a consequence, or they claim they will suffer significant hardship or disadvantage if they pay the fees.”
Another scenario refers to:
“Claimed inability to obtain work in Australia on the grounds that the employment is restricted to Australian citizens, and that comparable or alternative employment is not reasonably available.”
It can be seen in these examples that while there might be a suggestion of the Applicant suffering significant hardship, the educational example is ameliorated by the fact that the Applicant’s exclusion from HECS-HELP might be only of limited duration and the lack of some employment opportunities is qualified by the existence of genuine alternatives.
Nevertheless, in addressing a similar issue (length of residency in relation to a citizenship application) Davies J as President of the AAT stated:
A rigid application of policies which purport to exhaustively define the circumstances of hardship where the discretion should be exercised is to raise acceptable guidelines to the unacceptable level of a fetter on what is otherwise a significant and flexible discretion.[45]
[45] Dainty and Minister for Immigration and Ethnic Affairs (1987) 12 ALD 416 at 417.
A level of “significant harm” was found by the Federal Court in Petrovski where it said:
In this instance, the applicant appears to have suffered significant hardship which is related to the refusal of his application for citizenship. He has been unable to visit his wife and her daughter whom he considers to be his own, as he has been unable to travel outside of Australia. Furthermore, even within the limited confines of departmental policy, he appears to have found it difficult to obtain work due to his uncertain citizenship status.[46]
[46] Petrovski v Minister for Immigration and Ethnic Affairs (1996) 67 FCR 531 at [33].
The Tribunal accepts that the Applicant will face a degree of hardship or difficulty in not being able to present himself as an Australian citizen in a number of circumstances but, because some of these disadvantages will only be temporary and others do not rise to a level of being “significant”, there is no basis upon which to make such a finding in relation to this application and hence no basis upon which the discretionary provisions of subsection 22(6) can be enlivened.
CONCLUSIONS
No administrative error committed on the part of the Department or any agency of government has been found to have occurred.
The fact that the Applicant is not (yet) an Australian citizen, although he is a permanent resident and entitled to the benefits which attach to that status, does not impose upon him any burden which could be regarded as causing him significant hardship or disadvantage.
As a result of such findings, the discretionary provisions of neither subsections 22(5) nor 22(6) can or should be enlivened.
STATUS OF THE APPLICATION
It may well be that the Applicant could have been awarded Australian citizenship had his application in 2018 been approved, but it was not. The failure to approve it was not the fault of the Respondent which acted in good faith on the basis of material submitted (without qualification) by the Applicant. The remedy for this unfortunate scenario does not lie with this Tribunal in these proceedings.
It is unfortunate that, in his zeal to become an Australian citizen, the Applicant, who the Tribunal adjudges would make a fine addition to the Australian community, then made his citizenship application within four days of receiving his permanent residency instead of waiting the required 12 months to do so. Had he been less impatient it is likely that he would have been just about ready to lodge his application form within the next few weeks.
It is only at the hurdle of paragraph 21(2)(c) that the Application has faltered, having clearly satisfied the requirements of paragraphs 21(2)(a)and (b).
Although, as noted above, the Applicant’s citizenship application has not yet been assessed in relation to paragraphs 21(2)(d)-(h), the Tribunal takes it that the Respondent does not perceive these requirements to be problematic for the Applicant. His language skills are considerable (paragraphs (d), (e) and (f)); his residential intentions are clear (paragraph (g)) and there is, at least before the Tribunal, no indication of character concerns (paragraph (h)).
The Tribunal put to the Respondent at the hearing the question of whether or not, if the current application were rejected and the original decision affirmed, the Applicant would have to commence the entire citizenship application process de novo and was advised that (unfortunately) that indeed would be the case.
The Respondent’s own website makes it clear that there is a considerable backlog of applications for citizenship conferral awaiting processing and that time delays can be up to two years,[47] although this is not necessarily the case where applications do not invite a heightened level of scrutiny and assessment.
[47] Department of Home Affairs, Citizenship processing times: <>
During this waiting period the Applicant’s problems with access to home loan and student support schemes will have resolved with the effluxion of time. He is not precluded from seeking gainful employment in a sector where he is clearly qualified. His continued exclusion from certain social security benefits may well impose some hardship on him but the Tribunal does not find those to meet the threshold of being “significant”.
Even so, in many respects this would be an unfortunate outcome of these proceedings given all the circumstances, and while the Tribunal has no powers of direction in this regard, it would hope that the Department might consider giving some degree of expedition to any renewed citizenship application.
In the event that it does not, the Applicant will find himself where he should have been in the first instance, ready on 12 February 2022 to have completed his 12 months of residency and ready to take the next step on his journey to Australian citizenship. The Tribunal wishes him well.
DECISION
The decision under review is affirmed.
I certify that the preceding 105 (one hundred and five) paragraphs are a true copy of the reasons for the decision herein of Chris Puplick AM, Senior Member
........................................[sgd]................................
Associate
Dated: 15 February 2022
Date(s) of hearing: 27 January 2022 Date final submissions received: 3 February 2022 Applicant: In person Solicitors for the Respondent: Ms K Gawidziel, Australian Government Solicitor
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