LNRD & RFKS and Minister for Home Affairs (Citizenship)
[2019] AATA 4247
•18 October 2019
LNRD & RFKS and Minister for Home Affairs (Citizenship) [2019] AATA 4247 (18 October 2019)
Division:GENERAL DIVISION
File Numbers: 2018/7477 & 2018/7478
Re:LNRD & RFKS
APPLICANT
AndMinister for Home Affairs
RESPONDENT
DECISION
Tribunal:The Hon. John Pascoe AC CVO, Deputy President
Date:18 October 2019
Place:Sydney
2018/7477
The reviewable decision of the Minister’s delegate dated 29 November 2018 to refuse to grant the first applicant, LNRD, Australian citizenship by conferral is affirmed.
2018/7478
The reviewable decision of the Minister’s delegate dated 29 November 2018 to refuse to grant the second applicant, RFKS, Australian citizenship by conferral is set aside and remitted to the Respondent to be reconsidered in accordance with the findings of the Tribunal.
.................................[sgd].......................................
The Hon. John Pascoe AC CVO, Deputy President
CATCHWORDS
CITIZENSHIP – application for citizenship by conferral – refused as applicant did not satisfy general residence requirement - whether applicant was present in Australia as an unlawful non-citizen – where visa was cancelled under s 140 of the Migration Act due to the applicant being part of a family unit – where Tribunal set aside original visa cancellation – administrative error – decision affirmed
CITIZENSHIP – application for citizenship by conferral – where applicant is under 18 years – where eligibility criteria satisfied – whether discretion to refuse application under s 24(2) of Australian Citizenship Act should be exercised – decision set aside and substituted
LEGISLATION
Administrative Appeals Tribunal Act 1975 (Cth) – ss 24Z, 43
Australian Citizenship Act 2007 (Cth) – ss 21, 22, 24
Migration Act 1958 (Cth) – ss 13, 14, 109, 114, 116, 140
CASES
Kim v Minister for Immigration and Citizenship [2008] FCAFC 73
SECONDARY MATERIALS
Australian Citizenship Policy
Convention on the Civil Aspects of International Child Abduction (Signed 25 October 1980, entered into force 1 December 1983)
REASONS FOR DECISION
The Hon. John Pascoe AC CVO, Deputy President
18 October 2019
The first applicant (‘the Applicant’) in this matter, who has been given the pseudonym LNRD, seeks a review of a decision by the Minister’s delegate dated 29 November 2018 refusing to grant the Applicant Australian citizenship by conferral. The delegate found that the Applicant failed to satisfy the general residence requirement under section 21(2)(c) of the Australian Citizenship Act 2007 (Cth) (‘the Act’) because she was present in Australia as an unlawful non-citizen for a short period of time between the 20th and 21st of October 2016.
The second applicant, who has been given the pseudonym RFKS, is the daughter of the first applicant. The Applicant on her daughter’s behalf seeks a review of the decision of the Minister’s delegate to refuse to approve the application for citizenship under section 24(2) of the Act, despite finding that the daughter satisfied the requirements for citizenship by conferral under section 21(5) of the Act.
BACKGROUND
The Applicant is a citizen of Lebanon, born in 1980. The Applicant arrived in Australia on 13 June 2013 and was granted a subclass 457 Temporary Work (Skilled) visa on 28 May 2013 as a member of a family unit.
In February 2016 the Applicant’s relationship with her husband broke down as she allegedly found out that in fact he was having relationships with several different women, one of whom was already his wife at the time he claimed to have been free to marry the Applicant. Significant domestic violence was alleged to have occurred in the relationship. She also became aware that her husband was planning to remove her daughter from her care and take the daughter to Europe and Lebanon using his Lithuanian passport. The Applicant gave evidence that her husband told the Australian immigration department that he no longer had any relationship with her. Although the father was said to be able to return to Lebanon at any time, the Applicant could not return to Lebanon because of fears for her personal safety and that of her daughter, especially if the father were there. Accordingly she sought and was granted orders by the Federal Circuit Court in its Family Law jurisdiction which restrained the father from applying for a Lebanese passport for the daughter. Evidence was also given that her daughter’s name was put on an airport watch list.
On 29 February 2016, the Applicant was sent a notice of intention to consider cancellation of the 457 visa as the primary visa holder, her former husband, may have breached a condition of that visa.
On the same day the Applicant lodged an application for a subclass 866 protection visa which included her infant daughter, the second applicant in these proceedings.
On 20 October 2016, the Applicant was sent a copy of a notice of cancellation of the 457 visa which had been cancelled under section 140 of the Migration Act 1958 (‘the Migration Act’). This was because the primary visa holders visa had been cancelled under section 116 of the Migration Act and as a member of a family unit, the Applicant’s visa and that of her daughter were consequentially also cancelled.
On the following day, 21 October 2016, the Applicant went to an office of the department and was granted a bridging visa.
On 27 January 2017, the Migration and Refugee Division of the Administrative Appeals Tribunal set aside the decision of the delegate to cancel the Applicant’s husbands 457 visa and substituted a decision to not cancel the husband’s visa. The Tribunal noted that at the time of its decision the status of the Applicant and her daughter was somewhat unclear, but it was not a matter to which the Tribunal afforded any weight.
On 28 July 2017, the Applicant and her daughter were granted protection visas. Subsequently, on 31 July 2018 the Applicant lodged an application for Australian citizenship on behalf of herself and her daughter.
On 29 November 2018 a delegate of the Minister refused to grant the application because the Applicant had failed to satisfy the general residence requirement under section 22 of the Act on the basis that she was present in Australia as an unlawful noncitizen for a short period of time between the 20th and 21 October 2015. The delegate found as follows:
Departmental records indicate that your subclass 457 (Temporary Work) visa was cancelled on 20/10/2016. On 21/10/2016 you were granted a subclass 050 (Bridging visa E) which means you were present in Australia as an unlawful non-citizen for a short period between 20/10/2016 and 21/10/2016 which falls within the 4 years immediately prior to lodging your citizenship application. Therefore, you do not meet the requirements of paragraph 22(1)(b) of the Act.
On 19 December 2018 the Applicant applied to the Tribunal for review of the delegate’s decision.
The Issues
The issues for determination by the Tribunal in relation to the Applicant are:
1. whether the Applicant was an unlawful non-citizen during a brief period between 20 October 2016 and 21 October 2016, and
2. if so, whether there is any discretion which may be exercised.
If the decision in relation to the Applicant is affirmed then the Tribunal must determine whether to exercise the discretion conferred on decision-makers under section 24(2) of the Act to refuse to grant citizenship in relation to the daughter, having regard to the Citizenship Policy.
RELEVANT LEGISLATION AND POLICY
Subsection 21(2) of the Act establishes the requirements for general eligibility for Australian citizenship. It relevantly provides:
General eligibility
(2) A person is eligible to become an Australian citizen if the Minister is satisfied that the person:
………………….
(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
…………………..
Subsection 22(1) sets out the general residence requirement which must be satisfied as follows:
General residence requirement
(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.
Subsection 14(1) of the Migration Act 1958 (Cth) (‘Migration Act’) defines an ‘unlawful non-citizen’ as follows:
Unlawful non-citizens
(1)A non-citizen in the migration zone who is not a lawful non-citizen is an unlawful non-citizen.
Subsection 13(1) of the Migration Act defines a ‘lawful non-citizen’ as follows:
Lawful non-citizens
(1) A non-citizen in the migration zone who holds a visa that is in effect is a lawful non-citizen.
Subsection 22(4A) of the Act allows the Minister to exercise a discretion to treat a period as one in which a 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.
Subsection 21(5) of the Act establishes the eligibility criteria for the granting of citizenship by conferral to people under the age of 18 years:
Person aged under 18
(5) A person is eligible to become an Australian citizen if the Minister is satisfied that the person:
(a)is aged under 18 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.
Subsection 24(2) of the Act confers the decision-maker a discretion to refuse to grant a person citizenship despite them being meeting the eligibility criteria of subsections 21(2), (3), (4), (5), (6) or (7).
The Citizenship Policy issued by the Minister provides guidance to decision-makers when considering applications for citizenship. Chapter 7 relevantly provides the following in relation to applications made by people under the age of 18:
The discretion in s24(2) to refuse to approve an applicant becoming an Australian citizen despite being eligible under s21(5) would usually be exercised where the applicant meets the legislative eligibility criteria under s21(5) (being aged under 18 years and being a permanent resident at the time of application and decision), but does not meet the policy guidelines. In making a decision whether to refuse or approve an application, the primary considerations that need to be taken into account are the legislative requirements, the best interests of the child and the policy guidelines set out in this chapter.
DISCUSSION
Issue 1: Was the Applicant an unlawful non-citizen during the period of 20 October 2016 to 21 October 2016?
The Respondent argued that the Applicant was an unlawful non-citizen for a period of hours between the 20th and 21st October 2016. The Respondent drew the Tribunal’s attention to section 21(2) of the Act and in particular the provisions of section 22(1)(b) and claimed that the Applicant failed to meet the requirements of this section because of the gap in time between her being notified of the cancellation of her husband’s 457 visa (and consequentially her own visa), and the granting of her bridging visa the following day.
The Applicant did not dispute that there was a period of time during which she did not have a visa and gave evidence that she had only received notification of the cancellation of her husband’s 457 visa late in the afternoon and had been unable to go to the offices of the Department until they opened at 9:00am the following morning. She also noted that the Department had communicated the cancellation to her migration agent rather than directly to her. However, in my view nothing turns on this evidence.
Accordingly, it was common ground that there was a delay between the Applicant receiving notice of the cancellation of her visa and the granting of a bridging visa.
If this were the only relevant factor, the outcome would be clear. However, it is in my view relevant to consider the circumstances relating to the cancellation of the husband’s 457 visa and the later decision by the Migration and Refugee Division of this Tribunal (‘the MRD’) to set aside that cancellation and substitute its decision for that of the original decision-maker.
The Respondent argued that the MRD decision did not have any retrospective effect, that is, it applied only from the date on which it was made.
In support of that argument, counsel drew the Tribunal’s attention to the provisions of section 114(1) of the Migration Act which states that in circumstances where there is a cancellation of a visa pursuant to section 109, and there was a decision of the Federal Court, the Federal Circuit Court or the Administrative Appeals Tribunal to set aside that cancellation, the visa is taken to never have been cancelled.
Counsel argued that because there was no similar provision in relation to cancellation under section 116 of the Migration Act, the visa should be taken to have been cancelled during the period between the delegate’s decision to cancel the visa and the Tribunal’s decision to set it aside.
The Respondent’s argument appears to be in line with the Department’s Migration Policy which relevantly states as follows:
The Act does not expressly deal with the effect of a court or tribunal’s decision to set aside a s116 cancellation. It is departmental policy, however, that:
- if a s116 cancellation decision is set aside by a court, the visa is taken to never have been cancelled. Any consequential s140 cancellation would be treated in the same manner. That is, any visa that was consequentially cancelled under s140 would be taken to never have been cancelled, but
- if a s116 cancellation decision is set aside by a tribunal, in the absence of a provision comparable to s114 in respect of s109 cancellation decisions set aside by a review tribunal, the s116 cancellation decision is operative until the date of the tribunal's decision and is set aside only after this date……
Although not raised by either party, I considered the application of section 43 of the Administrative Appeals Tribunal Act 1975 (Cth) (‘the AAT Act’) in relation to the decision to set aside the cancellation of the visa held by the Applicant’s ex-husband. It is clear however from section 24Z of the AAT Act that the provisions of section 43 do not apply to decisions made by the MRD.
There is limited Federal Court authority in relation to this issue, but the following comment of Tamberlin J in Kim v Minister for Immigration and Citizenship [2008] FCAFC 73 at [33] is directly applicable:
………The respondents’ argument is consistent with the proposition that an affirmation is different from a new decision because the affirmed decision operates from its original date of decision, whereas a new decision by the Tribunal operates prospectively in the absence of the exercise of any power to back-date the decision.
In the absence of any other legislative power to backdate the Tribunal’s decision, it is clear that for the period between the cancellation of the ex-husband’s 457 visa and the granting of a Bridging visa to the Applicant, she was an unlawful non-citizen present in Australia for the purposes of subsection 22(1) of the Act.
On the face of it, this appears unfair to the Applicant. I note however that the Applicant can apply for citizenship next year and it would seem appropriate for her citizenship application to be expedited.
Issue 2: Was there any administrative error?
The Applicant raised concerns about the fact that the Department had failed to send an email dated 29 September 2016 in relation to the potential cancellation of her visa to the correct email address – which she says she gave to the Department the day before the email in relation to the intended cancellation was sent.
It appears however that on 4 October 2016 the Applicant emailed the Department and confirmed that she had read their email in relation to the potential visa cancellation. Further the notice of cancellation of her visa sent by the Department on 20 October 2016 was in fact sent to the correct email address which was that of her migration agent, who had taken over the conduct of the matter on her behalf.
The mere fact that the email from the Department dated 20 October 2016 giving notice of the cancellation of her visa was sent late in the day to the Applicant’s migration agent and that she may not have had a chance to read it immediately, does not constitute administrative error.
As there is no evidence of any administrative error by the Department, the discretion under subsection 22(4A) of the Act does not apply.
Issue 3: Should the discretion conferred by subsection 24(2) of the Act be exercised to refuse the Applicant’s daughter citizenship?
It was accepted that the Applicant’s daughter met the requirements of subsection 21(5) of the Citizenship Act, but that the delegated decided to use the discretion under subsection 24(2) of the Act to refuse her citizenship application, on the basis of the Citizenship Policy.
Although the first Applicant did not meet the requirements for citizenship, there are particular circumstances in relation to her daughter which merit further consideration, having regard to the Policy.
I accept the evidence of the Applicant, which I have no reason to discount, that her ex-husband claimed that he was able to remove the daughter from Australia, despite orders of the Federal Circuit Court, because he had other passports and claimed he had means to get a Lebanese passport for the child.
Although the evidence was never tested, there appear to be serious questions as to whether the father committed bigamy at the time he married the Applicant and further whether he has engaged in significant domestic violence and threats to abduct the child. Certainly, there was sufficient evidence for the Federal Circuit Court to make Orders under the Family Law Act 1975 designed to protect the child from abduction to Lebanon.
I note that Lebanon is not a party to the Hague Convention on the Civil Aspects of International Child Abduction. Thus if the child were to be abducted and taken to Lebanon there would be serious doubt as to whether the child would be able to return to Australia.
The Citizenship Policy itself makes it clear that the ‘prevention of the illicit transfer and non-return of children abroad’ is an important factor in considering the best interests of the child, as is the protection of the child from ‘physical or mental violence’, which would include exposure to domestic violence.
The Applicant gave evidence as to why she could not return to Lebanon, even to see her daughter, if the child were abducted and taken to that country. I accept her evidence. Australia has a significant and explicitly recognised obligation in relation to the safety of this child and the child’s ongoing relationship with her mother who is the primary carer.
The mother is in danger if she returns to Lebanon. The status of the child is different if she is taken to Lebanon in that, if the evidence of the mother is to be accepted, the father would have much more control over, and rights in relation to the child than is the case in Australia, where the parents have equal rights.
Although I accept the Respondent’s argument as to the level of protection the child receives under her current status as a permanent resident, it cannot be disputed that there is an additional layer of protection for her in being an Australian citizen. This is particularly important where the child is in danger of being abducted to a country that is not party to the Hague Convention on the Civil Aspects of International Child Abduction. It is clearly in the child’s best interests that she is an Australian citizen with all of the important rights and privileges which are part of Australian citizenship.
Given that the delegate found that the child satisfied the criteria for citizenship by conferral pursuant to subsection 21(5) of the Act, and in light of the evidence presented to the Tribunal which may not have been before the original decision-maker, it follows that it would be against the child’s best interests to withhold her citizenship.
DECISION
The reviewable decision of the Minister’s delegate dated 29 November 2018 to refuse to grant the first applicant, LNRD, Australian citizenship by conferral is affirmed.
The reviewable decision of the Minister’s delegate dated 29 November 2018 to refuse to grant the second applicant, RFKS, Australian citizenship by conferral is set aside and remitted to the Respondent to be reconsidered in accordance with the findings of the Tribunal.
I certify that the preceding 50 (fifty) paragraphs are a true copy of the reasons for the decision herein of The Hon. John Pascoe AC CVO, Deputy President
.................................[sgd].......................................
Associate
Dated: 18 October 2019
Date of hearing: 8 August 2019 Applicant: In person Advocate for the Respondent: Ms A Nanson Solicitors for the Respondent: Australian Government Solicitor
Key Legal Topics
Areas of Law
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Administrative Law
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Immigration
Legal Concepts
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Judicial Review
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Procedural Fairness
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Jurisdiction
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Statutory Construction
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