Kumar and Minister for Home Affairs (Citizenship)

This matter concerned Mr Kumar's application for Australian citizenship by conferral, which was refused by the delegate of the Minister for Home Affairs. The refusal was based on Mr Kumar's alleged failure to meet the general residence requirement, specifically that he was present in Australia as an unlawful non-citizen during the four years prior to his application. Mr Kumar argued that any period of unlawful non-citizenship was due to administrative error and should be disregarded.

The court was required to determine three issues: first, whether Mr Kumar had been present in Australia as an unlawful non-citizen in the four years preceding his citizenship application; second, if he had been, whether this period of unlawful non-citizenship was a result of administrative error; and third, if it was due to administrative error, whether the Minister's discretion should be exercised to disregard that period for the purposes of the general residence requirement.

The court found that the delegate's decision to proceed with the cancellation of Mr Kumar's 457 visa, without first considering his pending application for a 187 visa which had been lodged over six months earlier, constituted an administrative error. This error led to Mr Kumar being in a position where he could not avoid a period of unlawful non-citizenship, despite his diligent efforts to maintain legal status by applying for a bridging visa and subsequently a Class E Bridging Visa. The court was satisfied that the discretion available under section 22(4A) of the *Australian Citizenship Act 2007* should be exercised in Mr Kumar's favour. Consequently, the court decided not to determine the precise period Mr Kumar may have been an unlawful non-citizen, as both parties proceeded on the basis that he was for a brief period between 29 and 30 March 2016.