Khettouch and Minister for Immigration and Border Protection (Citizenship)
[2015] AATA 717
•16 September 2015
Khettouch and Minister for Immigration and Border Protection (Citizenship) [2015] AATA 717 (16 September 2015)
Division
GENERAL DIVISION
File Number(s)
2015/0967
Re
Najat Khettouch
APPLICANT
And
Minister for Immigration and Border Protection
RESPONDENT
DECISION
Tribunal Professor R Deutsch, Deputy President
Date 16 September 2015 Place Sydney The decision under review is affirmed.
................................[sgd]........................................
Professor R Deutsch, Deputy President
CATCHWORDS
Citizenship – Applicant present in Australia as an unlawful non-citizen – whether period Applicant present in Australia as an unlawful non-citizen the result of administrative error – no administrative error – decision affirmed
LEGISLATION
Australian Citizenship Act 2007, ss 21, 22
Migration Act 1958, ss 13, 14
CASES
Re Drake and Minister for Immigration and Multicultural and Ethnic Affairs (No 2) (1979) 2 ALD 634
Re Rogers v Minister for Immigration and Citizenship [2011] AATA 592
SECONDARY MATERIALS
Australian Citizenship Instructions
REASONS FOR DECISION
Professor R Deutsch, Deputy President
16 September 2015
INTRODUCTION
Mrs Khettouch lodged an application for Australian citizenship by conferral on 19 January 2015.
A delegate of the Minister decided to refuse the citizenship application on the ground that the Applicant was not a permanent resident at the time of the application or at the time of the decision as required by s 21(2)(b), and because she did not satisfy the residence requirement in section 21(2)(c) of the Australian Citizenship Act 2007 (Cth) (the Act). The delegate also found that the Applicant was present in Australia as an unlawful non-citizen for a period of over 3 months, namely from 16 November 2014 until 25 February 2015.
The Applicant has applied to this Tribunal for a review of that decision.
For the reasons set out below the decision under review is affirmed.
FACTUAL BACKGROUND
The Applicant arrived in Australia as the holder of a Subclass 676 (Temporary) tourist visa on 16 March 2005.
On 22 August 2009, the Applicant was granted a Subclass 100 Spouse (Migrant) visa which provided a return facility. This Permanent visa was valid for five years.
On 8 July 2014, some 8 weeks before the expiry of her Permanent visa, the Applicant departed Australia for Morocco.
On 22 August 2014 the Applicant’s Permanent visa expired.
On 15 October 2014, almost 2 months after the expiry of her Permanent visa, the Applicant departed Morocco for Australia. At the time of her departure at the airport in Morocco she was informed that her Permanent visa had expired, but that she was nonetheless permitted to return to Australia.
When she arrived in Sydney on 16 October 2014, the Applicant was granted a Border (Temporary) (Class TA) (subclass 773) visa granted in immigration clearance. That Temporary visa was expressed to be valid for 30 days.
According to the Applicant’s evidence, the piece of paper recording the Temporary visa was lost almost immediately and she never read it. This course of events is also reflected in the Applicant’s statement referred to below.
On 15 November 2014, the Applicant’s Border (Temporary) (Class TA) (subclass 773) visa expired.
On 18 November 2014 the Applicant telephoned the Department. A Departmental file note of the call was tendered as evidence to the Tribunal and marked as Exhibit R4. It reads as follows:
‘Client rang the SSC re RRV renewal as she forgot to do it within the 30 days. Sent RRV hotlink. Promoted online lodgement. Informed renewal will affect citizenship as she missed renewal and is currently unlawful.’
On 19 January 2015, the Applicant applied for Australian citizenship. This application was refused on 2 February 2015 on the basis that the Applicant was not a permanent resident at the time of the application, and did not satisfy the residence requirements.
On 20 February 2015, the Applicant applied for a Resident Return visa (class BB Subclass 155) (RRV) which was granted on 25 February 2015.
On 2 March 2015 the Applicant sought review of the delegate's decision to refuse her application for citizenship by this Tribunal.
RELEVANT LEGISLATION
Eligibility Criteria
To be eligible to become an Australian citizen, an applicant must satisfy at least one of the 7 eligibility criteria set out sequentially in s 21(2) to (8) of the Act.
There is no evidence before the Tribunal that the Applicant would meet the eligibility criteria within the following sub-sections of s 21 which are broadly summarised by the short hand headings below:
(3) - Permanent or enduring physical incapacity;
(4) - Person aged 60 or over or has hearing, speech or sight impairment;
(5) - Person aged under 18;
(6) - Person born to former Australian citizen;
(7) - Person born in Papua;
(8) - Person who is stateless
Therefore the Minister submits and I accept that the relevant provision for the Applicant in this matter is whether they meet the general eligibility requirement in s 21(2) set out below:
(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.
In the decision under review, the delegate refused the application for Australian citizenship by conferral as the Applicant did not meet the requirements in s 21(2)(b) and s 21(2)(c).
In order to meet the general eligibility criteria at s 21(2), the Applicant must meet the general residence requirement at s 22.
Residence requirement
Section 22(1)(b) of the Act specifies that a person must not have been present in Australia as an unlawful non-citizen at any time during the 4 year period immediately before the day of the application for citizenship to satisfy the general residence requirement.
Section 3 of the Act states that ‘unlawful non-citizen’ has the same meaning as in the Migration Act 1958 (the Migration Act) which in turn (at s 14) states that an unlawful non-citizen is a ‘non-citizen in the migration zone who is not a lawful non-citizen’. Section 13 of the Migration Act states that a non-citizen in the migration zone who holds a visa that is in effect is a lawful non-citizen.
Discretion for reasons of ‘administrative error’
Under section 22(4A) of the Act, periods spent in Australia as an unlawful non-citizen as the result of an administrative error may be treated as periods ‘in which the person was not present in Australia as an unlawful non-citizen’.
‘Administrative error’ is not defined in the Act, however subchapter 5.16 of the Australian Citizenship Instructions (ACIs) provides that:
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:
·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.
The ACIs state that the onus is on the applicant to provide evidence that an administrative error has occurred.
The ACIs are not binding on the Tribunal but it is accepted that the Tribunal should apply the ACIs unless there are “cogent reasons to the contrary”: Re Drake and Minister for Immigration and Multicultural and Ethnic Affairs (No 2) (1979) 2 ALD 634 at 64.
ISSUES
The issues before the Tribunal are:
(a)Was the Applicant an unlawful non-citizen at any time in the four year period prior to the day of her application for citizenship?
(b)If so, was the period in which she was an unlawful non-citizen the result of an ‘administrative error’?
If it was the result of administrative error, the discretion in s 22(4A) of the Act would be enlivened and would cover the whole of that period with the effect that the Applicant would be treated as though she was present in Australia during that period as a lawful non-citizen.
If it was not the result of administrative error, there would be a substantial period of time (ie some 3 months) during which the Applicant was present in Australia as an unlawful non-citizen.
THE APPLICANT’S CONTENTIONS
The Applicant lodged a statement with the Tribunal on around 28 April 2015 in which the she claims that upon her return from Morocco to Australia on 16 October 2014:
On my and daughter’s return to Australia from Casablanca International Airport, during check in at the airport Emirates counter, they told me that I was not allowed to travel to Australia. As the visa sticker in the passport showed expired. They called the Australian Immigration support for assistance. The response came back 30 minutes later that I was a permanent resident and was allowed to return to Australia. I transited at Dubai airport and rechecked and boarded the aircraft to Australia.
On arrival I went through immigration counter and the officer sent me to see someone in another office nearby. A lady from immigration took my passport and went back inside her office and closed the door.
15 minutes later she came out holding my passport and a 1 white sheet of paper which was placed inside the passport. / asked her why am being stopped here and being questioned in Morocco at the airport when I am an Australian permanent resident. She replied stating that I was a permanent resident but my sticker label in the passport expired and I need to renew if I needed to travel overseas again.
After I finished with her I proceeded to the pick up my back and at customs handed my passport with immigration card and the paper. The passport was handed back to me and never noticed the paper being missing.
I did not know what was in the paper or the reason for having it. As I did not think that it had any substance as I had no intention of travelling overseas in the near future.
The Applicant also contended at the hearing that she had misplaced her passport at the critical time namely from 18 November 2014 up until the time she applied for citizenship and that this prevented her from seeking an RRV as suggested by the Departmental officer as per the record of the phone conversation reflected in Exhibit R4.
THE MINISTER’S CONTENTIONS
The Minister contends that the Applicant was given clear and unambiguous information on three separate occasions as follows:
·On 22 August 2009 the Applicant was sent a letter stating that she had been granted a Subclass 100 Spouse (Migrant) Visa. The letter clearly stated that the visa was granted on 22 August 2009, and that it allowed her “to travel in and out of Australia as a permanent resident for a period of five years from the date it was granted”. The letter also informed the Applicant that “once this five year visa expires and if you have not become an Australian citizen, you can apply for a Resident Return visa (RRV) if you wish to travel outside Australia”. In other words, the Applicant was informed of the date the visa was granted, the length of the visa, and what she should do once the visa expired. A copy of the letter was tendered to the Tribunal as part of the Minister’s evidence and was marked as Exhibit R2.
·The Border (Temporary) (Class TA) (subclass 773) visa that was granted to the Applicant in immigration clearance when she returned to Australia on 16 October 2014 was clearly marked temporary and indicated that and it expired in 30 days with a cessation date marked twice on the front page of the notice.
It should be noted that the Department does not maintain individual files with copies of the visa notice grant of such visas issued in immigration clearance. Instead, the grant of this visa is recorded electronically on an individual’s records maintained by the Department. As such the notice given to the Applicant was not available; however the template of the visa grant notice was provided to the Tribunal and marked as Exhibit R3.
·The Applicant was reminded of the need to apply for her RRV when she telephoned the Department on 18 November 2014. The officer confirmed that as she had missed the renewal date, she was currently unlawful (Exhibit R4, as quoted in para [13] above).
The Minister contends that at each stage the Applicant was given clear and accurate information from the Department.
First, the information provided to her upon the grant of her visa in October 2009 expressly informed her that the visa, and its return facility, expired in 5 years. As the Applicant acknowledged in her statement (see above), the expiry date also appeared in the visa sticker attached to her passport.
It is accepted by the Applicant that she forgot to apply for the RRV, and that her Permanent visa expired while she was overseas. This fact was drawn to her attention at the airport in Morocco. The expiry of her Permanent visa cannot be said to have flowed from an administrative error.
The Applicant’s second encounter with the Department was upon her arrival in Australia, when she was granted a Border (Temporary) (Class TA) (subclass 773) visa in immigration clearance, valid for 30 days.
The Minister’s contends that the Applicant’s version of what she was told verbally by the officer in that encounter should not be accepted. There is no reason why an officer of the Department would give information to the Applicant to the effect that the Temporary visa which was being issued to her was anything other than that, temporary. It was a visa with a specific expiry date 30 days hence. There is no reason why the officer issuing that visa would give verbal information contrary to the clear terms of visa grant notice (Exhibit R3).
The Minister further contends that the Applicant’s claim that the visa grant notice given to her by the officer of the Department was lost when the Applicant was collecting her bag and passing through Customs clearance should not be believed. The more likely explanation is that the Applicant was aware that she needed to renew her Permanent visa before the expiry date of the Temporary visa, and that the story that this document was lost before the Applicant even had a chance to read it, was concocted to explain the Applicant’s alleged lack of awareness of the need to renew her Permanent visa. The Minister asserts that it should be inferred from the fact that the Applicant telephoned the Department on 18 November 2015, that she was aware of the need to renew her visa, and that she was aware she had been granted only a Temporary visa upon her return to Australia on 16 October 2014.
Even if the Tribunal were minded to believe that the Applicant was given oral information by the Department officer in immigration clearance that was contrary to the clear terms of the visa grant notice (see Exhibit R3) which the officer issued to her, and that the visa grant notice was somehow lost, or fell out of the Applicant’s passport while she exited the Airport, this does not explain the events that followed.
Having had it clearly explained to her in a telephone conversation with a Departmental officer on 18 November 2014 that she had missed the renewal date because her Temporary visa had expired, and that she should renew her visa (‘Sent RRV hotlink. Promoted online lodgement’), the Applicant chose not to do so at that time.
Instead the Applicant knowingly remained in Australia, without a valid visa, and was not the holder of a current visa at the time she applied for Australian citizenship on 19 January 2015. The Applicant did not apply to renew her Permanent visa until 20 February 2015.
CONSIDERATION
In Re Rogers v Minister for Immigration and Citizenship [2011] AATA 592, Deputy President Jarvis stated at [39]:
“It is incumbent on the Department to provide clear guidance to applicants, who in many cases will have language difficulties, and will generally be unaware of the complex requirements of the Migration Act and Regulations. If a Department’s communication is incomplete, internally inconsistent, inexact or inaccurate, this of itself might well constitute an administrative error within the meaning of s 22(4A).”
The Tribunal is willing to accept that Exhibits R2 and R3 are not as clear as they could or should be having regard to the fact that these documents of necessity are often addressed to people with language difficulties. It would, for example, be preferable if critical dates and timeframes were inserted in bold capital letters along the lines of
THIS VISA EXPIRES IN 30 DAYS
and for that to appear right at the beginning of the letter etc perhaps under the heading.
Having said that, I find the Applicant’s evidence that she lost or misplaced both the notification containing the terms of the Temporary visa and her passport at a critical time unconvincing and largely inconsistent with her actions. For example, the Temporary visa in question expired on 15 November 2014 and she rang the Department on 18 November 2014 but claims not to have seen or known what was on the paper at any time. In those circumstances it is surprising that she made a phone call to the Department on the 18th when she claims never to have seen or understood that her Temporary visa expired on the 15th.
Finally, even if I were to accept the Applicant’s version of the lost/misplaced visa notification and passport, the screenshot at Exhibit R4 indicates in very clear terms that it was explained to her that she was now in a position where she was unlawful and that it will affect citizenship. During the hearing the Applicant was taken through the narrative in Exhibit R4 and did not contradict or deny the accuracy of any aspect of the contents.
It seems clear to this Tribunal that the Applicant chose not to concern herself with the lack of an RRV from 15 November until 20 February 2015 and instead chose to press on with her citizenship application. This is not a case where an administrative error has resulted in the Applicant lacking the necessary legal status.
CONCLUSION
As the Applicant was present in Australia as an unlawful non-citizen at a time during the 4 years prior to applying for citizenship and this did not arise as a result of administrative error, the Applicant is unable to satisfy the general residence requirement at s 22 of the Citizenship Act. Consequently the Applicant did not satisfy s 21(2)(b) and s 21(2)(c) at the time of her application, and thereby was not eligible to become an Australian citizen.
DECISION
The decision under review is affirmed.
I certify that the preceding 49 (forty –nine) paragraphs are a true copy of the reasons for the decision herein of Professor R Deutsch, Deputy President .................................[sgd].......................................
Associate
Dated 16 September 2015
Date(s) of hearing 7 August 2015 Advocate for the Applicant Mr M Hawatt Solicitors for the Respondent Australian Government Solicitor
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