MAZDAK ZAMANI and and MINISTER FOR IMMIGRATION AND CITIZENSHIP
[2011] AATA 713
•14 October 2011
Administrative Appeals Tribunal
ADMINISTRATIVE APPEALS TRIBUNAL )
) No 2011/0962
GENERAL ADMINISTRATIVE DIVISION ) Re MAZDAK ZAMANI Applicant
And
MINISTER FOR IMMIGRATION AND CITIZENSHIP
Respondent
CORRIGENDUM
Tribunal Egon Fice, Senior Member Date14 October 2011
PlaceMelbourne
Senior Member Fice made a Decision under s 43 of the Administrative Appeals Tribunal Act1975 (the Act) on 14 October 2011.
In accordance with s 43AA(1) of the Act, the Tribunal directs that the text in the reasons for decision be altered in the following way:
1.deleting the following words in the certification box:
forty-five [45]
and replacing them with
forty-six [46]
............[sgd] Egon Fice................
Senior Member
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2011] AATA 713
ADMINISTRATIVE APPEALS TRIBUNAL )
) No 2011/0962
GENERAL ADMINISTRATIVE DIVISION ) Re MAZDAK ZAMANI Applicant
And
MINISTER FOR IMMIGRATION AND CITIZENSHIP
Respondent
DECISION
Tribunal Egon Fice, Senior Member Date14 October 2011
PlaceMelbourne
Decision The Tribunal finds that the decision made by the Minister for Immigration and Citizenship dated 1 March 2011 refusing Dr Mazdak Zamani’s application for Australian citizenship on the ground that he did not meet the residence requirements in the Australian Citizenship Act 2007 (Cth) was incorrect. The Tribunal sets aside the decision and remits the matter to the Minister to determine Dr Zamani’s eligibility to become an Australian citizen taking into account that the Tribunal has found he satisfies the residence requirements of s 22 of the Australian Citizenship Act 2007 (Cth). ..........[sgd] Egon Fice...........
Senior Member
CITIZENSHIP – Application for Citizenship – Subclass 462 visa – Bridging Visa A –General eligibility criteria – Residence criteria – Meaning of ceases to be in effect – When a visa is in effect – Visa period – In Australia as an unlawful non-citizen – Overseas travel
Australian Citizenship Act 2007 (Cth) ss 21, 22, 22(1), 24, 52(1)(b)
Migration Act 1958 (Cth) ss 5(1), 13, 14, 29(1), 30, 31(1), 31(3), 31(4), 33, 34, 35, 38, 38A, 68, 68(2), 68(3), 68(4), 73, 76, 77, 82(3), 82(4), 82(8), 504
Migration Regulations 1994 (Cth) reg 010.411, 010.511
Lesi v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 134 FCR 27
Re Melham and Minister for Immigration and Citizenship [2010] AATA 993
Re Pousti and Minister for Immigration and Citizenship [2011] AATA 456
Re Rais and Minister for Immigration and Citizenship [2011] AATA 44
Re Rogers and Minister for Immigration and Citizenship [2011] AATA 592
Re Waaijer and Minister for Immigration and Citizenship [2010] AATA 913
REASONS FOR DECISION
14 October 2011 Egon Fice, Senior Member 1. Dr Mazdak Zamani, an Iranian citizen, lodged an application for Australian citizenship on 15 October 2010. In a letter dated 1 March 2011 an officer from the Department of Immigration and Citizenship notified Dr Zamani that his application for Australian citizenship had been refused. The reason given by the officer was that Dr Zamani had been present in Australia as an unlawful non-citizen during the four year period immediately prior to him lodging his application for citizenship.
2. Dr Zamani’s application was made pursuant to s 21 of the Australian Citizenship Act 2007 (the Citizenship Act). The decision made by the Department of Immigration and Citizenship officer pursuant to s 24 of the Citizenship Act was made under delegation from the Minister for Immigration and Citizenship (the Minister). On 15 March 2011 Dr Zamani lodged an application with the Tribunal seeking review of the Minister’s decision in accordance with s 52(1)(b) of the Citizenship Act.
3. The issues which arise for my consideration are:
(a)whether Dr Zamani had spent time in Australia as an unlawful non‑citizen at any time during the four year period immediately prior to lodgement of his application;
(b)the operation of a Bridging Visa A (BVA); and
(c)whether the Minister made an administrative error in refusing Dr Zamani’s application for citizenship.
DR ZAMANI’S RESIDENCE IN AUSTRALIA
4. To be eligible for Australian citizenship, an applicant must meet the general eligibility criteria set out in s 21 of the Citizenship Act. Amongst the numerous matters set out in that section is the need for the applicant to satisfy the residence requirement set out in s 22 of the Citizenship Act at the time of making the application for citizenship. The residence requirements applicable to Dr Zamani’s application are those set out in s 22(1) of the Citizenship Act which provides:
(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.
5. There was no dispute between the parties that Dr Zamani was present in Australia for a period of four years immediately before the day he made his application and that he was present in Australia as a permanent resident for a period of twelve months immediately before the day he lodged his application for citizenship. He was granted permanent residence on 15 September 2009. However, according to the Minister, Dr Zamani was present in Australia as an unlawful non-citizen for three days in June 2008 because, although he had been granted a BVA following the expiry of his then Subclass 462 (Work and Holiday) visa, because he had travelled overseas between February and March 2008, his BVA had ceased to be in effect. In order to understand how the Minister arrived at this conclusion, I need to set out in more detail the events which gave rise to Dr Zamani being regarded as an unlawful non-citizen for a period of three days in the four year period prior to him making his application for citizenship.
6. Dr Zamani first arrived in Australia on 7 May 2006 on a Subclass 462 visa which expired on 7 May 2007. He did not travel overseas during the period 7 May 2006 to 7 May 2007. Dr Zamani had applied for a further Subclass 462 visa prior to its expiry and he was granted a BVA which came into effect on 7 May 2007 and ceased to be in effect on 20 June 2007 when his further Subclass 462 visa was granted. The second Subclass 462 visa expired on 20 June 2008. Prior to the expiry of his second Subclass 462 visa, on 5 February 2008 Dr Zamani applied for a third Subclass 462 visa in anticipation of the expiry of his second Subclass 462 visa on 20 June 2008. As is the normal practice of the Department of Immigration and Citizenship, Dr Zamani was issued with a second BVA on 5 February 2008 in conjunction with his application.
7. On 22 February 2008 Dr Zamani departed Australia, returning on 26 March 2008. At the time he arrived back in Australia, his second Subclass 462 visa plainly remained valid and in effect. However, the Minister contended that because Dr Zamani departed Australia after he had been granted his second BVA on 5 February 2008, that BVA ceased to be in effect as at 22 February 2008. Therefore, when his second Subclass 462 visa expired on 20 June 2008, the BVA issued to him on 5 February 2008 had ceased to be in effect and, until Dr Zamani was granted a further BVA on 24 June 2008, he remained in Australia for those three days without any valid visa. In other words, he was present in Australia for that period of three days as unlawful non-citizen.
8. For the sake of completeness, I should point out that Dr Zamani was granted a third Subclass 462 visa on 31 July 2008, which expired on 31 July 2009. On that day he was granted an Employer Sponsored visa which was valid until 15 September 2009 when Dr Zamani was granted permanent residency. Dr Zamani also had four further overseas trips between May 2009 and August 2010 although they were for relatively short periods of time and do not affect his residence requirements. That is because s 22(1A) of the Citizenship Act provides that if the total period of absences in the four year period immediately prior to lodgement of the citizenship application was not more than 12 months, the applicant is taken to have been present in Australia during each period of absence.
THE OPERATION OF A BRIDGING VISA A
9. The success or otherwise of Dr Zamani’s claim depends entirely on the correct interpretation of the Citizenship Act, the Migration Act 1958 (the Migration Act) and the Migration Regulations 1994 (the Migration Regulations).
10. A person is an unlawful non-citizen if that person meets the definition set out in s 14 of the Migration Act. Section 14(1) provides:
(1)A non‑citizen in the migration zone who is not a lawful non‑citizen is an unlawful non‑citizen.
11. Section 13(1) of the Migration Act describes a lawful non-citizen as:
(1)A non‑citizen in the migration zone who holds a visa that is in effect is a lawful non‑citizen.
12. The important words in s 13(1) are a visa that is in effect. Section 68 of the Migration Act explains when a visa is in effect. It provides:
68 When visa is in effect
(1)Subject to subsection (2), a visa has effect as soon as it is granted.
(2)A visa may provide that it comes into effect at the beginning of a day, being a day after its grant:
(a)specified in the visa; or
(b)when an event, specified in the visa, happens.
(3)A visa can only be in effect during the visa period for the visa.
(4)A bridging visa (the reactivated bridging visa), held by a non‑citizen, that has ceased to be in effect under subsection 82(3), will come into effect again during the visa period for the visa if:
(a)the non‑citizen does not hold a substantive visa that is in effect; and
(b)either:
(i) the non‑citizen does not hold any other bridging visa; or
(ii) the reactivated bridging visa is determined, in accordance with the regulations, to be the most beneficial of the bridging visas held by the applicant.
13. The expression visa period is a defined term in the Migration Act. Section 5(1) defines the expression in the following way:
visa period, in relation to a visa, means the period:
(a) beginning when the visa is granted; and
(b) ending:
(i)in the case of a visa other than a bridging visa—when the visa ceases to be in effect; or
(ii)in the case of a bridging visa—when the visa ceases to be in effect otherwise than under subsection 82(3).
14. Section 68(4) of the Migration Act provides a good example of what is intended by the Act when the expression regarding a visa being in effect is used. Two concepts appear to be in play. A bridging visa can have effect as soon as it is granted. That means that the visa is valid at the time it is granted and remains so until its expiry date or an event occurs which causes the visa to cease to be in effect. It creates a legal right for the holder of the visa to enter or to remain in Australia. However, if a bridging visa ceases to be in effect for the reason that a non-citizen obtains another substantive visa which comes into effect, it nevertheless remains a valid visa for the visa period, but at that time, it has no legal operation because the other visa does. However, if the substantive visa ceases to be in effect, the bridging visa is reactivated in that it comes into effect again for the remainder of the bridging visa’s visa period.
15. The Full Court of the Federal Court in Lesi v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 134 FCR 27 dealt with the expression a visa ceases to be in effect in the context of s 82(4) of the Migration Act.
16. In that case, Mr Lesi, who held a permanent residence visa, was deported from Australia under the Migration Act after having been sentenced to four years imprisonment for possessing heroin for sale. Some 18 months after he was deported, the Administrative Appeals Tribunal (AAT) set aside the deportation decision and in substitution decided that Mr Lesi not be deported from Australia. On deportation, s 82(4) of the Migration Act was enlivened to cause his permanent visa to cease to be in effect. The Minister in that case argued that at the time of his deportation, Mr Lesi’s permanent visa, which he then held, ceased to be in effect, and that it could not be revived. The Court set about determining the meaning of the expression ceases to be in effect.
17. The Court observed that the phrase ceases to be in effect was used in contrast to the concept of cancellation of visas under the Act. The Court noted that the Migration Act contained extensive references to the cancellation of visas and it came to the following conclusion, at 40:
[53] It is apparent that the Act has carefully addressed when and how a visa may be cancelled, and the consequences of its cancellation. The fact of a visa ceasing to be in effect in certain circumstances is something which the Act has dealt with differently. The expressions "cease to be in effect" or "be in effect" are not defined in the Act. They should be taken to have their ordinary English meaning. There is no indication in the Act that they have some different or more refined meaning. Consequently, we consider the expression "cease to be in effect" simply means cease to be operative to provide the entitlements which the visa would otherwise provide. The visa itself is not to be taken to have been cancelled under s 82(4) simply because the provision does not say so.
18. It should be readily apparent that the expression cease to be in effect as understood by the Full Court is consistent with the provisions in s 68(4) which indicate that a visa can cease to provide legal entitlements which it would otherwise provide, but it is not taken to have been cancelled. In other words, it can be revived. The expression should not be understood to mean that the visa ceases to exist. It does not.
19. As is stated in s 29(1) of the Migration Act, a visa is simply a permission granted to a non-citizen by the Minister to do either or both of the following:
…
(a)travel to and enter Australia;
(b)remain in Australia.
20. Section 30 of the Migration Act provides that visas may be permanent, which entitle the holder to remain in Australia indefinitely, or temporarily, which entitle the holder to remain in Australia during a specified period; until a specified event happens; or while the holder has a specified status. Section 31(1) of the Migration Act provides that there are to be prescribed classes of visas. Section 31(3) provides that the regulations may prescribe criteria for a visa or visas of a specified class except, for the class provided by s 33, s 34, s 35, s 38 or s 38A of the Migration Act. Those exceptions are not relevant to this case. Furthermore, s 31(4) of the Migration Act provides that the regulations may prescribe whether visas of a class are visas to travel to and enter Australia, or to remain in Australia, or both.
21. Migration Regulation 010.411 provides that an applicant must be in Australia but not in immigration clearance in order for a BVA to be granted. However, this appears to be contrary to what is set out in s 73 of the Migration Act. Section 73 provides:
73 Bridging visas
If the Minister is satisfied that an eligible non‑citizen satisfies the criteria for a bridging visa as prescribed under subsection 31(3), the Minister may grant a bridging visa permitting the non‑citizen to remain in, or to travel to, enter and remain in Australia:
(a)during a specified period; or
(b)until a specified event happens.
22. It should be immediately apparent that there is a conflict between s 73 and regulation 010.411 as the Migration Act contemplates a bridging visa being granted to a non-citizen to remain in or to travel to, enter and remain in Australia. Section 504 of the Migration Act provides that the Governor-General may make regulations, not inconsistent with the Migration Act, prescribing all matters which by the Migration Act, are required or permitted to be prescribed or which are necessary or convenient to be prescribed for carrying out or giving effect to the Migration Act. Therefore, to the extent that regulation 010.411 is inconsistent with s 73, it should not be regarded as valid as it has been made outside the power to make regulations granted under the Migration Act.
23. The Migration Regulations also deal specifically with the case of a BVA granted to a non-citizen who has applied for a substantive visa. Regulation 010.511 deals with when such a BVA comes into effect. It provides:
010.511In the case of a visa granted to a non‑citizen who has applied for a substantive visa — bridging visa:
(a)coming into effect:
(i)on grant; or
(ii)when the substantive visa (if any) held by the holder ceases; and
(b)permitting the holder to remain in Australia until:
(i)if the Minister’s decision in respect of the substantive visa application is to grant a visa — the grant of the visa; or
(ii)if the Minister’s decision in respect of that application is to refuse to grant a visa — 28 days after the holder is notified of that refusal; or
(iii)if the substantive visa application is refused and the holder applies for merits review of that refusal — 28 days after notification of the decision of:
(A)the review authority; or
(B)if the holder has the right to apply to another review authority for merits review of the decision of that review authority and so applies — 28 days after notification of the decision of that other review authority; or
(iv)the grant of another bridging visa to the holder in respect of the same substantive visa application; or
(v)if the holder withdraws his or her application for a substantive visa or an application to a review authority — 28 days after that withdrawal; or
(vi)if the substantive visa (if any) held by the holder is cancelled — that cancellation; or
(vii)if the holder is notified by Immigration that the substantive visa application is invalid — 28 days after the notification; or
(viii)if a review authority remits the application for the substantive visa to the Minister for reconsideration — permitting the holder of the bridging visa to remain in Australia in accordance with the relevant provision of this paragraph.
24. Although s 68(2) of the Migration Act provides that a visa comes into effect after it is granted, on the day specified in the visa, or upon an event occurring which is also specified in the visa, regulation 010.511 provides that a BVA comes into effect either on grant or when the substantive visa (if any) held by the applicant ceases.
25. In other words, a BVA is a device which, consistent with its metaphorical description, provides the non-citizen with the lawful means of remaining in Australia while awaiting the grant of a substantive visa. Regulation 010.511 is consistent with s 82(3) of the Migration Act which provides that a bridging visa held by a non-citizen ceases to be in effect if another visa (other than a special purpose visa) for the non-citizen comes into effect. It also makes it clear that the BVA, although granted, will not come into effect until a substantive visa held by the applicant ceases to have effect. It simply provides a lawful means for the non-citizen to remain in Australia while decisions are being made about the grant of a substantive visa or where the non-citizen has applied for review of decisions regarding the substantive visa application.
26. I should clarify a misconception which appears to have arisen in a number of Tribunal cases dealing with the grant of a BVA. The Minister has referred to these cases. They are Re Melham and Minister for Immigration and Citizenship [2010] AATA 993; Re Waaijer and Minister for Immigration and Citizenship [2010] AATA 913; Re Rais and Minister for Immigration and Citizenship [2011] AATA 44 and Re Pousti and Minister for Immigration and Citizenship [2011] AATA 456. In those cases, it is said that a BVA is a visa which only entitles its holder to remain in Australia. Some of the cases go further and state that a BVA does not permit a person to travel to or enter Australia. With respect to the members who have expressed those views, these statements are incorrect and should be disregarded. Section 73 of the Migration Act makes it clear that a bridging visa may permit a non-citizen to travel to and enter and remain in Australia. The confusion seems to have arisen as a result of reference to s 82(8) of the Migration Act which deals with when visas cease to be in effect. It uses the words a visa to remain in, but not re-enter, Australia ... . The BVA could permit a non-citizen to travel to, enter and remain in Australia, but it does not permit the holder to leave Australia and re-enter. That is not the same as what is stated in the cases I have referred to above. The meaning of the expression travel to Australia is quite different to the expression but not re‑enter Australia.
DR ZAMANI’S POSITION
27. Turning now to Dr Zamani’s case, it is clear to me that when Dr Zamani was automatically granted a BVA upon lodging an application for his second Subclass 462 visa on 5 February 2008, the BVA did not come into effect immediately. In other words, it was not operative at that time. In fact, s 76 of the Migration Act provides:
76 Bridging visa not affect visa applications
(1) The fact that a non-citizen holds a bridging visa does not prevent or affect:
(a) an application by the non-citizen for a visa of another class; or
(b) the grant of such a visa.
(2) To avoid doubt, the holding by a non-citizen of a bridging visa is not to be taken to be, for the purposes of an application for a visa of another class, the holding of a visa.
This section supports my opinion that the intention underlying the issue of bridging visas is for them to act in accordance with the metaphorical description given to them. They cover the gap created by the expiry of one substantial visa while awaiting the outcome of an application for another substantial visa.
28. Perhaps the more contentious issue is the question regarding whether the BVA granted at the time of his application for the second Subclass 462 visa on 5 February 2008 remained valid or whether it ceased to be in effect as contended by the Minister because Dr Zamani departed Australia on 22 February 2008.
29. In the Minister’s original statement of facts and contentions, he argued that s 82(8) of the Migration Act was the relevant statutory provision which determined the continued existence of the BVA granted to Dr Zamani on 5 February 2008, following his departure from Australia on 22 February 2008. Although the Minister contended that it was not necessary for a visa to come into effect before it may cease to be in effect, subject to any defined terms which may be involved in the expression, on its face, that submission appears to be illogical. Furthermore, it does not take into account the fact that s 82(3) of the Migration Act deals specifically with when a bridging visa held by a non-citizen ceases to be in effect. Additionally, s 68(4) of the Migration Act provides that a bridging visa held by a non-citizen which has ceased to be in effect under s 82(3), comes into effect again during the visa period where, effectively, the non-citizen does not hold a substantive visa that is in effect and does not hold any other bridging visa.
30. It should be immediately apparent that a bridging visa which ceases to be in effect because another visa has come into effect (s 82(3) of the Migration Act) does not, as it were, cease to exist if the period for which the visa has been granted continues. The Full Court of the Federal Court made it clear in Lesi’s case that the expression ceases to be in effect simply means it ceases to be operative. It does not mean the visa ceases to exist. The fact that a bridging visa has ceased to be in effect because a substantive visa has come into effect, does not alter the visa period in respect of the bridging visa. This interpretation is consistent with what appears to be the clear intention of the statutory provisions dealing with bridging visas generally. Quite plainly, if a BVA was in effect at the time the non-citizen departed Australia, the BVA would not authorise that person to re-enter Australia as a lawful non-citizen. That is because the visa period would also cease in accordance with the definition of the expression visa period in s 5(1) of the Migration Act. The visa period ends when it ceases to be in effect.
31. It should also be clear that when Dr Zamani departed Australia on 22 February 2008, his second Subclass 462 visa remained in effect and his BVA was not in effect (regulation 010.511). I also note that when a client services officer of the Department of Immigration and Citizenship informed Dr Zamani of receipt of his application for the third Subclass 462 visa lodged by him on 5 February 2008, the officer said, in a letter dated 25 February 2008:
When you lodged your application you were granted a Bridging Visa A. If your application has not been decided by the time your current substantive visa ceases to be in effect, the Bridging Visa A will come into effect. The purpose of the Bridging Visa A is to allow you to remain lawfully in Australia until a decision is made on your application; however, you need to be aware that you cannot travel overseas while you hold a Bridging Visa A.
32. The above statement provided by the client services officer is, in my opinion, clearly correct and in accordance with the Migration Act. Reference to holding a Bridging Visa A, in the context of what was said by the client services officer, was clearly a reference to holding a BVA which had come into effect because his current substantive visa had ceased to be in effect and he should not rely on the BVA to travel overseas.
33. The conclusion I have arrived at is supported by the decision of Deputy President DG Jarvis in Re Rogers and Minister for Immigration and Citizenship [2011] AATA 592. Deputy President Jarvis said that Ms Rogers’ BVA did not cease to be in effect on her departure from Australia because it did not come into effect until the subsequent expiration of her first work and holiday visa. That is plainly in accordance with the intention and all of the provisions dealing with visas, in particular bridging visas, in the Migration Act.
34. It follows that I cannot accept the Minister’s contention that Dr Zamani’s BVA granted on 5 February 2008 resulted in the visa period ending when he left Australia on 22 February 2008. His BVA was not in effect at that time and his travel between 22 February 2008 and 26 March 2008 was conducted on his valid Subclass 462 visa. Otherwise, there could be no basis upon which the Department of Immigration and Citizenship allowed Dr Zamani to re-enter Australia on 26 March 2008.
35. The Minister also contended that the Tribunal has previously considered circumstances where the holder of bridging visa departed Australia while a substantive visa remained in effect. He referred to Melham’s case, Waaijer’s case and Rais’ case. In Melham’s case the Tribunal simply stated that Mr Melham’s bridging visa ceased to have effect when he left Australia. The Tribunal offered no reason why that was the case when, at the same time, he held a valid Subclass 457 visa. The Tribunal then said when Mr Melham returned to Australia on 2 February 2007, he no longer had a bridging visa to fall back on if his substantive visa had expired. The problem of course is that his substantive visa only expired on 6 August 2007, some six months after he returned to Australia. The Tribunal did not refer to s 68(4), s 5(1), s 73 or s 82(3) of the Migration Act or regulation 010.511. With respect, the decision is incorrect.
36. In Waaijer’s case, Mrs Waaijer’s Subclass 475 visa expired on 3 March 2009. On 30 January 2009 she was granted a bridging visa pending the outcome of an application for a Subclass 856 (Employer Nominated) visa. She departed Australia on 13 February 2009 at a time when her Subclass 475 Business visa continued to be in effect. The Tribunal simply noted that Mrs Waaijer’s departure on 13 February 2009 rendered a ceasing of her bridging visa. No reasons were given in that decision why that would be the case.
37. Rais’ case suffers from the same problems I have referred to above. Mr Rais held a Student visa which expired on 15 March 2009. This was apparently replaced by a Temporary Business Entry (Long Stay) visa, which is a Subclass 457 visa, on 8 January 2008 and that visa remained valid until 8 January 2009. In October 2008 Mr Rais applied for a further Subclass 457 visa at which time he was automatically granted a BVA. On 10 December 2008 Mr Rais left Australia at a time when, quite obviously, his Subclass 457 visa was valid. The Tribunal noted that Mr Rais was able to re-enter Australia on 2 January 2009 under his Subclass 457 visa which remained valid and in effect. Nevertheless, the Tribunal said that his BVA became ineffective on his departure from Australia. The only explanation given by the Tribunal for the BVA becoming ineffective was because of s 82(8) of the Migration Act. No attempt was made by the Tribunal to distinguish between the validity of a visa and its coming into operation or, as is stated in the Migration Act, coming into effect. No reference was made to s 82(3) or s 68(4) of the Migration Act. Once again, with respect to the Tribunal in that case, I cannot agree with its reasoning as it does not establish when Mr Rais’ BVA came into effect in order for it to cease having effect, and whether it might be reactivated by reason of s 68(4) of the Migration Act.
38. The Minister also referred to the decision in Pousti. The Tribunal in that case again seems to have adopted what was said in previous cases regarding the operation of a BVA. The Tribunal said that it was a visa only to remain in Australia and did not permit the person to leave and re-enter Australia. While it is correct to say that a BVA does not permit a person to leave and re-enter Australia on that visa, it is not necessarily a visa only to remain in Australia. The Tribunal did not make any reference to s 73 of the Migration Act. Although the Tribunal referred to s 68(2) and stated that the language of the Act and Regulations was difficult and to some degree ambiguous, it nevertheless held that s 68 of the Migration Act was concerned with the commencement of a visa and s 82 concerned with ending the visa’s effect. While that is correct in a broad sense, it does not describe what happens to a BVA where there is a substantive visa held by the non-citizen at the same time where the visa period in respect of the substantive visa has not ended and the BVA has not come into effect. The Tribunal then said that it was:
highly likely that the legislative policy intended by the creation of a Bridging Visa A was… [that that]… type of visa would not survive the holder leaving Australia…
Again, the assumption made was that a BVA comes into effect on the day after it is granted which is what s 68(2) provides. However, that section only states that a visa may provide that it comes into effect etcetera. Section 68(3) provides that a visa can only be in effect during the visa period for the visa. The visa period in respect of a bridging visa does not end if a visa ceases to be in effect under s 82(3) of the Migration Act. Nor does it come into effect while a substantive visa is in effect (regulation 010.511). The Tribunal has made no reference to this and, in my opinion, regrettably, has erred in its decision. I decline to follow any of the decisions referred to above for the reasons I have given.
39. The fact that there is a distinction between the existence of a valid visa which a non-citizen may hold and that visa ceasing to have effect is amplified by s 77 of the Migration Act which provides:
77 Visas held during visa period
To avoid doubt, for the purposes of this Act, a non‑citizen holds a visa at all times during the visa period for the visa.
40. As a result of my analysis, I find that when Dr Zamani left Australia on 22 February 2008, his Subclass 462 visa was valid and in effect and therefore the bridging visa granted to him on 5 February 2008 did not come into effect at that time. His departure from Australia on 22 February 2008 did not cause his bridging visa to cease to be in effect because it had not come into effect at the time he departed Australia. When he returned to Australia on 26 March 2008, he did so lawfully because his Subclass 462 visa remained valid and in effect. On 20 June 2008 the visa period in respect of his second Subclass 462 visa came to an end. At that time he did not hold a substantive visa and therefore regulation 010.511 was enlivened resulting in his bridging visa being activated and coming into effect on that date. That bridging visa remained in effect until 31 July 2008 when Dr Zamani was granted his third Subclass 462 visa. It was only then that his BVA ceased to be in effect by the operation of s 82(3) of the Migration Act. Assuming that the visa period had not ended by that time, the BVA nevertheless continued in existence and he continued to hold that visa.
41. Accordingly, I find that in the four year period immediately prior to making his application for Australian citizenship, Dr Zamani was not present in Australia as an unlawful non-citizen at any time. I find that he satisfies the residence requirements set out in s 22 of the Citizenship Act.
ADMINISTRATIVE ERROR
42. Dr Zamani also contended that the Minister had committed an administrative error because it failed to notify him that he had been granted a BVA prior to his departure from Australia on 22 February 2008. However, given my findings regarding the operation of bridging visas, I need not concern myself with that contention.
CONCLUSION
43. I have found that Dr Zamani was not present in Australia as an unlawful non‑citizen at any time during the four year period immediately before the day he made his application for Australian citizenship. That is because the BVA granted to him on 5 February 2008 had not come into effect. At that time, his Subclass 462 visa was in effect. When he departed Australia to travel overseas, his bridging visa was not in effect and therefore it could not cease to be in effect upon his leaving Australia.
44. At the time he returned to Australia, the visa period relating to his Subclass 462 visa had not ended and his continued presence in Australia after return was lawful. Dr Zamani did not travel overseas at any time when his BVA was in effect. Therefore, Dr Zamani satisfies the residence requirement set out in s 22 of the Citizenship Act.
45. The fact that Dr Zamani satisfies the residence requirement in s 22 of the Citizenship Act is only one of a number of eligibility criteria which he must meet and which are set out in s 21 of the Citizenship Act. Quite plainly, I am not in a position to comment on any of the other eligibility criteria for the grant of Australian citizenship.
46. I find that the decision made by the Minister on 1 March 2011 refusing Dr Zamani’s application for Australian citizenship on the ground that he did not meet the residence requirements in the Citizenship Act was incorrect. I set aside that decision and remit the matter to the Minister to determine Dr Zamani’s eligibility to become an Australian citizen taking into account that I have found he satisfies the residence requirements of s 22 of the Citizenship Act.
I certify that the forty-five [45] preceding paragraphs are a true copy of the reasons for the decision herein of
Egon Fice, Senior MemberSigned: .........[sgd].....................................................................
Elise Montalto, AssociateDates of Hearing 4 July 2011
Date of Decision 14 October 2011
Representative for the Applicant Self RepresentedRepresentative for the Respondent Ms A Collins, Clayton Utz
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