Marasli and Minister for Immigration and Multicultural and Indige Nous Affairs

[2003] AATA 1093

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2003] AATA 1093

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No N2002/1955

GENERAL ADMINISTRATIVE DIVISION		)
Re		GUZIDE MARASLI

Applicant

And MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

Respondent

DECISION

Tribunal Michael Sassella
Senior Member

Date31 October 2003

PlaceSydney

Decision The decision under review is affirmed.

(sgd) M.J. Sassella

Senior Member

CATCHWORDS

IMMIGRATION – Citizenship – application for grant of Australian citizenship – applicant not permanent resident for required period before date of application for grant of citizenship – whether applicant not a permanent resident for a period because of administrative error – whether respondent should exercise discretion to regard applicant as permanent resident – whether delay in administration of application constitutes administrative error

Australian Citizenship Act 1948 s 13(1)(d), (e), (4)(b)(v)

Al-Mughrabi and Secretary, Department of Immigration and Multicultural Affairs, Re [1999] AATA 164

Ji Xian Liu and Department for Immigration and Ethnic Affairs. Re (1996) 41 ALD 589

Lai and Minister for Immigration and Ethnic Affairs, Re (1987) 11 ALD 535

REASONS FOR DECISION

31 October 2003 Michael Sassella
Senior Member     

RESULT

1.      The tribunal has decided that there was no administrative error involved in the processing of Ms Guzide Marasli’s application for permanent residence such that the Minister for Immigration and Multicultural and Indigenous Affairs should have exercised a discretion to regard Ms Marasli as having been permanently resident in Australia at any time earlier than 12 November 2002.  This means that Ms Marasli has not succeeded in her application to the Administrative Appeals Tribunal (“AAT”).

BACKGROUND

2.      Ms Guzide Marasli (“the applicant”) (also known as Mrs Guzide Muslu as she was married to Mr Arif Muslu) wished to become an Australian citizen.  On 3 December 2002 she lodged with the Department of Immigration and Multicultural and Indigenous Affairs (“the department”) an application for grant of Australian citizenship (TD1/T5)[1].  The department, as delegate of the Minister for Immigration and Multicultural and Indigenous Affairs (“the respondent”) refused to grant Ms Marasli’s request (TD1/T2).

[1] A list of the tribunal exhibits appears in Schedule 1 to these reasons.

ISSUES

3. The department denied Ms Marasli a grant of citizenship because she had been made a permanent resident on only 12 November 2002 (TD1/T5) and s 13(1)(d), (e) of the Australian Citizenship Act 1948 (“the Act”)[2] requires that an applicant for citizenship must have been a permanent resident at the date of application for at least one of the two years preceding that date and for at least two of the five years preceding that date.  Ms Marasli had arrived in Australia on 2 December 1997 (TD1/T6) and she applied for permanent residency on 28 September 2000 (TD1/T1/4).  It took the department over two years to grant permanent residency. 

[2] Relevant legislation is reproduced in Schedule 2 to these reasons.

4. Section 13(4)(b)(v) of the Act permits the respondent Minister a discretion in certain circumstances allowing him or her to treat an applicant for permanent residency as having been a permanent resident during a period when the applicant was in Australia but the grant of permanent residency was delayed by reason of “administrative error”.

5.      The issue in this case is whether there was administrative error on the part of the department such that Ms Marasli should be treated as having been a permanent resident from 28 September 2000 or from some other date between then and 12 November 2002.

FINDINGS ON MATERIAL QUESTIONS OF FACT WITH REFERENCE TO THE EVIDENCE AND OTHER MATERIAL IN SUPPORT OF THOSE FINDINGS

6.      The department had a number of reasons explaining the delay in processing Ms Marasli’s application for permanent residence.  One stemmed from confusion surrounding Ms Marasli’s relationship with a Mr Ibrahim Altunbigak first noted in 1997 (TD2/S3).  Mr Altunbigak had applied for permanent residence and provided the same address as Ms Marasli.  Ms Marasli’s father was interviewed by departmental officers and denied any knowledge of Mr Altunbigak.  Subsequently it became clear that Mr Altunbigak was Ms Marasli’s son.  In October 2002 Mr Muslu explained to a departmental officer that the reason for not declaring Mr Altunbigak as Ms Marasli’s son in her application for permanent residence was fear of delays in processing the application.  Mr Muslu had advised Ms Marasli not to declare Mr Altunbigak as her son because he was 26 years old, he was not dependent on Ms Marasli and he was in Australia as having overstayed his visa at the time (TD2/S11).

7.      There was also a denunciation letter from November 1997 suggesting that Ms Marasli’s marriage to Arif Muslu was a contrived marriage (TD2/S1).  Ms Marasli applied for citizenship on grounds of marriage to an Australian citizen (TD1/T6/25).  By 17 October 2002 the department was satisfied that the marital relationship was genuine (TD2/S11). 

8.      The department had made serial requests for factual information in September 1999 (TD2/S4), August 2000 (TD2/S6) and August 2002 (TD2/S10).  It seemed to the tribunal that some of this material was not acted on promptly when the department received it and some of the requests required the updating of earlier provided data. 

9.      The department has enunciated policy relating to exercise of the Minister’s discretion in the Australian Citizenship Instructions (TD1/T4/20).  Instructions 4.3.39, 4.3.40 and 4.3.41 have the following effects:

·     Examples of administrative error relevant to exercise of the discretion are unlawful cancellation of a visa, grant of a temporary visa to a permanent visa holder and double processing of a visa application.

·     Administrative error is not established merely because an applicant is successful as a result of seeking a review on the merits, as in the AAT.

10.     In itself this policy is not very enlightening.  However, its meaning and operation becomes clearer after consideration of several relevant case authorities.  The first of these was Re Lai and Minister for Immigration and Ethnic Affairs (1987) 11 ALD 535. In this matter Ms Lai entered Australia in May 1984. She applied for permanent residency in about June 1984. The department processed the application in Brisbane and in March 1985 noted on her file that all requirements had been met. The department wrote to Ms Lai seeking her passport so that it could be stamped with the appropriate visa. Ms Lai had moved to Sydney and did not receive the letter. The department located her some months later and she provided her passport. However, the department in NSW received Ms Lai’s file on transfer from Brisbane as Ms Lai was then living in NSW. The department recommenced processing Ms Lai’s application. Ms Lai was aware of this and was surprised as she had already received approval. However, the department’s letter discouraged contact with the department and Ms Lai refrained from querying the processing arrangement. Ms Lai eventually became a permanent resident in January 1986. She sought a grant of citizenship in May 1986.

11. The tribunal held that Ms Lai’s application for permanent residence had been delayed by administrative error under s 13(4)(b)(v) of the Act. There was no statute or regulation requiring the reprocessing of an application when an applicant for permanent residence moved from one State to another. In the actual case this did not assist Ms Lai because the grant by the Brisbane office had not occurred early enough to satisfy the time requirements in any event.

12.     The second of these was Re Ji Xian Liu and Department for Immigration and Ethnic Affairs (1996) 41 ALD 589. In that case there were three applicants with similar histories. They had entered Australia and were granted temporary entry visas. They were from the Peoples Republic of China and claimed refugee status. The department denied them this. They successfully appealed to the Refugee Review Tribunal (“RRT”). Because of the need to apply to the RRT they each achieved permanent resident status later than they would have done if the department had accepted them as refugees in the first place. This meant that the period of residence of each as a permanent resident was too short for an early conferral of citizenship when each applied for a grant of citizenship. They each contended that the department made an administrative error by not finding that they were refugees in the first instance.

13.     The AAT held that a decision as to status arrived at after considering relevant material, set aside following an appeal process, is not a deviation from accuracy or correctness or a mistake pertaining to administration.  The error must be as to the processing of an application, not to the outcome of that processing.  This decision had no relevance in the present case.  The applicant’s complaint was that the processing of her permanent residence application was unnecessarily protracted.

14.     The third case was Re Al-Mughrabi and Secretary, Department of Immigration and Multicultural Affairs [1999] AATA 164. Mr Al-Mughrabi was born in Syria. He arrived in Australia on 4 December 1996 and was given a bridging visa on 13 December 1996. He applied for a protection visa as a refugee. This was denied him and he appealed successfully to the RRT which upheld his appeal on 7 April 1998. On 2 June 1998 the department granted him a protection visa. This accorded him permanent residence status. On 25 June 1998 Mr Al-Mughrabi applied for citizenship. He argued that the almost two-year delay between his application for a protection visa and the grant of that visa should be regarded as a period during which he was a permanent resident.

15.     The AAT rejected Mr Al-Mughrabi’s application.  It cited the AAT decision in the Liu case (above) and went on to say that, even if a period of time elapsed between the date of the original application for the protection visa and the date of grant of the visa, there was no evidence of any fault on the department’s part being responsible for the overall lapse of time. There was said to be no error within the meaning of s 13(4)(b)(v) of the Act.

16.     In the present case the tribunal had the benefit of hearing evidence from Mr Anthony Glenn D'Cruz, an officer from the department.  He had been a permanent residence assessor when Ms Marasli applied for permanent residence.  He provided an affidavit dated 24 July 2003 (ex R2) in which, among other things, he said:

·     He was responsible for processing Ms Marasli’s application from 4 September to 18 December 2000 and later from 17 August 2001 until 1 July 2002.  In oral evidence he explained that he had been redeployed on other duties between December 2000 and August 2001.

·     It was only in September 2000 that Ms Marasli declared to the medical examination authorities the existence of a 29-year-old son.  Mr D’Cruz noted from the file at that time that there were allegations that Ms Marasli’s marriage to Mr Muslu was contrived, that Ms Marasli had gained an entry visa on the basis of inaccurate information and that Ms Marasli’s father admitted at interview that incorrect information had been given to the department.  This required the initiation of further investigations.

·     In November 2000 Mr D’Cruz reviewed the file.  He decided that he needed to see the file relating to Ms Marasli’s son for crosschecking purposes.  The file arrived six days later.

·     On 18 December 2000 Mr D’Cruz was reassigned and Ms Marasli’s file was sent to a general pool for next action.  Mr D’Cruz had not decided whether there were grounds for cancellation of Ms Marasli’s entry visa at that time. 

·     The file was reallocated to Mr D’Cruz on 17 August 2001.  It seems that nothing was done on the file in the intervening period. 

·     Ms Marasli did not inquire regarding progress during the processing period.

·     Ms Marasli was asked for additional information in August 2002 and was interviewed on 17 October 2002.  The required information arrived on 24 October 2002 and the permanent residence visa was granted on 12 November 2002.

17.     In his oral evidence Mr D’Cruz advised that Ms Marasli’s son’s visa was approved in April 2002.  He explained the period of apparent inaction by the department as caused by waiting for Ms Marasli’s son’s visa application for crosschecking.  It had to come from overseas.  Mr D’Cruz advised that one problem was that Ms Marasli did not agitate to have her file activated.  Files sent to the general pool are reviewed periodically, however there was no indication regarding any reviews that may have occurred relating to Ms Marasli’s file. 

18.     Mr D’Cruz did not consider that there had been delay in this case in processing Ms Marasli’s visa application.  There was no statutory time frame and there had been no deliberate intention to delay Ms Marasli’s application.  The tribunal would add that, perhaps unusually for a Commonwealth agency, there is no stated commitment to prompt processing in the department’s Client Service Charter[3].

[3] The tribunal considered that there had not been administrative error in this case such as s 13(4)(b)(v) requires. The remarks of Deputy President Purvis of the AAT in Re Liu (above) were cogent.  There must be something in the way the actual administration of the application is carried out that is erroneous, as was the case in Re Lai (above) where the department embarked on an unnecessary reprocessing of the application that delayed the stamping of the relevant passport with the permanent residence visa. It might be that s 13(4)(b)(v) requires an act that is both a positive and an erroneous act before there can be said to be administrative error. That was not the situation here.

20.     The tribunal was conscious also that Ms Marasli and those assisting her were less than forthright and candid in their dealings with the department.  As Mr D’Cruz pointed out in his affidavit, a letter was sent to Ms Marasli dated 14 November 1997 reminding her of her obligation to advise the department at all times of any incorrect information in the department’s possession.  This letter was included as S2 in ex TD2 and was the letter advising Ms Marasli that she had been granted a temporary visa.  Much of the need for subsequent checking arose from the evasive and false answers Ms Marasli and her relatives gave the department about Mr Altunbigak’s status.  This checking process contributed a good deal to the time taken to finalise the application for permanent residence.

21.     The tribunal considered that there was a period of inactivity affecting Ms Marasli’s file from December 2000 until August 2001.  Mr D’Cruz suggested that this would have been reduced if Ms Marasli had inquired during this period regarding progress.  While the tribunal is reluctant to sanction such an official or unofficial policy regarding action on departmental files, it did not seem to the tribunal that that particular period of inactivity was overly excessive in the overall history of this matter.  The tribunal was conscious too that Mr D’Cruz’s assessment was probably no more than a realistic reflection of much of public administration in Australia at this time.  Public service organisations are now required to do more with fewer resources and they have to arrive at priorities in achieving outputs.  It stands to reason that a person affected who is assertive in querying delays is going to move up the administrative queue faster than one who remains silent.

DECISION

22.     The decision under review is affirmed.

SCHEDULE 1

23.     The tribunal took into evidence and marked as exhibits the following documents:

Exhibit TD1 – Section 37 Statement and associated documents (exhibits TD1/T1 – T6) provided by the respondent.

Exhibit TD2 – Supplementary section 37 documents (exhibits TD2/S1 – S14) provided by the respondent.

Exhibit TD3 – Supplementary section 37 documents (exhibits TD2/S1 – S2) provided by the respondent.

Exhibit A1 – Letter dated 18 March 2003 from Booth Partners to the Administrative Appeals Tribunal.

Exhibit R1 – Respondent’s statement of facts and contentions, 17 April 2003.

Exhibit R2 – Affidavit of Anthony Glenn D’Cruz, 24 July 2003.

SCHEDULE 2

24. The relevant provisions of the Act are:

Grant of Australian citizenship

13       (1)       Subject to this section, the Minister may, in the Minister’s discretion, upon application in accordance with the approved form, grant a certificate of Australian citizenship to a person who satisfies the Minister that:

(a)       the person is a permanent resident;

(b)       the person has attained the age of 18 years;

(c)       the person understands the nature of the application;

(d)the person has been present in Australia as a permanent resident for a period of, or for periods amounting in the aggregate to, not less than one year during the period of 2 years immediately preceding the date of the furnishing of the application;

(e)the person has been present in Australia as a permanent resident for a period of, or for periods amounting in the aggregate to, not less than 2 years during the period of 5 years immediately preceding the date of the furnishing of the application;

(f)        the person is of good character;

(g)       the person possesses a basic knowledge of the English language;

(h)the person has an adequate knowledge of the responsibilities and privileges of Australian citizenship; and

(j)if granted a certificate of Australian citizenship, the person is likely to reside, or to continue to reside, in Australia, or to maintain a close and continuing association with Australia.

…

(4)For the purposes of the application of subsection (1) in relation to an applicant for the grant of a certificate of Australian citizenship:

…

(b)       subject to paragraph (a), the Minister may, in the Minister’s discretion:

…

(v)if the Minister considers that an applicant who is a permanent resident was, by reason of an administrative error, not a permanent resident during a period during which the person was present in Australia - treat the period as a period during which the applicant was present in Australia as a permanent resident.

I certify that the 24 preceding paragraphs are a true copy of the reasons for the decision herein of Michael Sassella
Senior Member

Signed:         .......................................................................................
  Associate

Date of hearing  21 August 2003
Date of decision  31 October 2003
Advocate for the applicant        Mr Arif Muslu
Solicitor for the Applicant          Booth Partners, Certified Practising Accountants
Counsel for the respondent      Ms Louise Stone
Solicitor for the respondent      Blake Dawson Waldron Lawyers