HWALLA and MINISTER FOR IMMIGRATION AND CITIZENSHIP

[2011] AATA 387

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2011] AATA 387

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No 2011/0192

GENERAL ADMINISTRATIVE  DIVISION		)
Re		KARIM HWALLA

Applicant

And MINISTER FOR IMMIGRATION AND CITIZENSHIP

Respondent

DECISION

Tribunal Mr S. Webb, Member

Date6 June 2011

PlaceCanberra

Decision The decision under review is affirmed.

........................[sgd]......................

Mr S. Webb, Member

CATCHWORDS

CITIZENSHIP - application for citizenship by conferral - absences from Australia - illegal non-citizen for a period - discretions not enlivened or exercised - not present in Australia as a permanent resident for 12 months prior to application - general residence requirement not satisfied - decision affirmed

Australian Citizenship Act 2007 (Cth) ss 21, 22

REASONS FOR DECISION

6 June 2011 Mr S. Webb, Member         

1.Karim Hwalla is a permanent resident. He applied for Australian citizenship, but his application was rejected. He is not happy with this result and applied for review.

2.The issue, broadly, is whether or not Mr Hwalla qualifies for the grant of Australian citizenship by conferral under the Australian Citizenship Act 2007 (the Act). More specifically, the dispute is whether Mr Hwalla satisfies the general residence requirements under sections 21(2)(c) and 22 of the Act. Issues of character have not yet been assessed and were not agitated in these proceedings. The central issue is whether Mr Hwalla was ‘not present in Australia as an unlawful non-citizen’ at any time during the 4-year period immediately prior to the day on which he made the application for Australian citizenship.

3.The key facts are not controversial. Mr Hwalla holds a Lebanese passport. He first arrived in Australia in 2004 having been granted a TU-572 visa on 1 July 2004[1]. On 12 August 2005 he was granted a TU-573 visa which expired on 30 September 2007[2].

[1] Exhibit 2.

[2] Exhibit 2; T6 folio 62.

4.Mr Hwalla asserts that he engaged in a telephone conversation with an officer of the respondent Minister’s Department on or about 30 September 2007. There is no evidence other than Mr Hwalla’s account of this conversation, and Mr Hwalla could not recall precisely when the conversation occurred or its specific contents. He could not recall the name of the person with whom he spoke, but thought that the person may have been female. He could not recall whether he contacted the Department, or whether a departmental officer contacted him. On Mr Hwalla’s evidence he required additional documents from Lebanon for the purpose of obtaining a further visa and these documents were not in his possession when his TU-573 visa expired. He says that the Departmental officer informed him that if the documents arrived in a couple of days he could then make a further application.

5.On 2 October 2007 Mr Hwalla lodged an application for a student visa[3]. He was granted a Bridging Visa A. On 12 October 2007 this decision was “reversed” and, instead, he was granted a Bridging Visa C[4]. On 31 October 2007 he was granted a TU-573 visa and on 19 March 2010 a VB-885 permanent resident visa was granted.

[3] Exhibit 2.

[4] Exhibit 3.

6.On 7 August 2010 Mr Hwalla married his present wife, an Australian citizen[5].

[5] T9 and T10.

7.On 7 January 2011 Mr Hwalla lodged an application for Australian citizenship[6].

[6] T5; T6 to T14 refer.

8.Mr Hwalla does not dispute the fact that his TU-573 visa expired on 30 September 2007. He says that the Departmental officer with whom he spoke on or about that date made an administrative error that resulted in him becoming an illegal non-citizen from 1 October 2007 until a new visa was granted on 2 October 2007. In his submission, as I understand it, the Departmental officer erred by not informing him of the possible ramifications of the expiry of his TU-573 visa or by informing him that he would not be illegal in the period prior to the issuing of a new visa.

9.This error, Mr Hwalla asserts, is sufficient for the Ministerial discretion in section 22(4A) of the Act to be enlivened and exercised in his favour.

10.I do not agree.

11.The present evidence is not sufficient to establish that Mr Hwalla became an illegal non-citizen on 1 October 2007 ‘because of an administrative error’.

12.By Mr Hwalla’s own account, Australian citizenship was not discussed in his conversation with a Departmental officer on or about 30 September 2007 – it was simply not in his mind or his ambition at that time. It is entirely consistent with the known facts for a Departmental officer to provide information to Mr Hwalla, as alleged, concerning visa processes without canvassing issues relating to citizenship.

13.There is no evidence from the Minister’s Department concerning the telephone conversation Mr Hwalla recounted in his evidence; nor was his evidence on this point seriously challenged. I was informed by the Minister’s representative that searches had been conducted by Departmental officers and no file notes or other record of any such conversation had been found. No evidence was adduced on this point. Mr Hwalla expressly declined to pursue this point. The poor state of the evidence concerning Mr Hwalla’s account of this telephone conversation does not render it likely that any further searches would be productive of relevant probative evidence on this point. I decided, therefore, having heard the parties, that no further searches would be ordered.

14.Mr Hwalla’s assertion that he became an illegal non-citizen because of an administrative error is not made out. It follows that the discretion conferred by section 22(4A) of the Act is not enlivened, and it cannot be exercised in Mr Hwalla’s favour in the circumstances.

15.I have carefully considered other sections of the Act of possible relevance and I am satisfied that no other discretion exists that may apply in the particular circumstances.

16.Mr Hwalla does not satisfy the requirements of section 22(1)(b) of the Act.

17.Furthermore, I note that Mr Hwalla does not satisfy the requirements of section 22(1)(c) – he was not present in Australia as a permanent resident for the period of 12 months immediately prior to the day on which he lodged his application for Australian citizenship. His citizenship application was lodged on 7 January 2011. He became a permanent resident on 19 March 2010. From 7 January 2010 he was present in Australia.

18.The grant of a permanent resident VB-885 visa on 19 March 2010 was not attended by administrative error. The discretion conferred by section 22(5) is not enlivened.

19.There is no evidence that Mr Hwalla suffered significant hardship or disadvantage in the period from 7 January 2010 to 18 March 2010, and I am reasonably satisfied that he did not. The discretion conferred by section 22(6) is not enlivened.

20.For these reasons, Mr Hwalla’s application for conferral of Australian citizenship cannot succeed. It is not necessary to proceed further to consider other aspects of his case.

21.The decision under review must be affirmed.

I certify that the 21 preceding paragraphs are a true copy of the reasons for the decision herein of Mr S. Webb, Member

Signed:         .....................[sgd].........................................................
           H. Choi (Associate)

Date of Hearing  27 May 2011
Date of Decision  6 June 2011
Representative for the Applicant               Self Represented

Solicitor for the Respondent  Mr S Moloney, Clayton Utz