Melhem and Minister for Immigration and Citizenship
[2010] AATA 993
•10 December 2010
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2010] AATA 993
ADMINISTRATIVE APPEALS TRIBUNAL )
) No 2010/0656
GENERAL ADMINISTRATIVE DIVISION ) Re Semaan Melhem Applicant
And
Minister for Immigration and Citizenship
Respondent
DECISION
Tribunal Senior Member Jill Toohey Date10 December 2010
PlaceSydney
Decision The decision under review is affirmed.
....................[sgd]..........................
Senior Member
CATCHWORDS
CITIZENSHIP – application for citizenship by conferral – general residency requirement – whether applicant an unlawful non‑citizen at any time during the four years immediately prior to application for citizenship – period of one day in which applicant did not hold a visa – bridging visa had ceased effect when applicant left Australia – discretion to treat a person as lawful if unlawful by reason of administrative error – no relevant administrative error occurred – decision under review affirmed
Australian Citizenship 2007 ss 21, 22, 24
A New Tax System (Family Assistance) (Administration) Act 1999 s 97
Migration Act 1958 ss 13, 14, 45, 82
Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634
Dranichnikov v Centrelink [2003] FCAFC 13
REASONS FOR DECISION
10 December 2010 Senior Member Jill Toohey Background
1. Semaan Melhem is a Lebanese citizen. He arrived in Australia in 1999 on a business (long stay) visa subclass 457. His visa had been extended several times since then. On 23 November 2007, he was granted permanent residency.
2. On 26 September 2009, Mr Melhem applied for Australian citizenship. The Minister for Immigration and Citizenship (the Minister) refused his application on the ground that he failed to satisfy the general residence requirement in the Australian Citizenship 2007 (the Citizenship Act). Mr Melhem seeks review of that decision.
The general residence requirement
3. Applications for citizenship are made under s 21 of the Citizenship Act. The Minister must, in writing, approve or refuse to approve an application.
4. The Minister must not approve an application unless the person is eligible to become an Australian citizen under one of the relevant provisions in s 21: ss 24(1) and (1A)
5. Section 21 sets out the general criteria for eligibility for conferral of citizenship. They include a general residence requirement: s 21(2)(c).
6. Section 22(1) provides that a person satisfies the general residence requirement if:
(a)the person was present in Australia for the period of four 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 four 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.
7. The meaning of unlawful non-citizen in s 22(1)(b) is the same as in the Migration Act 1958 (the Migration Act), s 13(1) of which provides that a non-citizen in the migration zone who holds a visa that is in effect is a lawful non-citizen. Section 14(1) provides that a non-citizen in the migration zone who is not a lawful non-citizen is an unlawful non-citizen.
8. Section 22(4A) of the Citizenship Act enables the Minister to treat a person as being lawfully present in Australia during a period if he or she became unlawful during that period because of an administrative error.
Contentions
9. The Minister contends that:
(i)between 7 August 2007 when Mr Melhem’s subclass 457 visa expired, and 8 August 2007 when he was granted a bridging visa, Mr Melhem did not hold a visa that was in effect;
(ii)as a consequence, he was present in Australia as an unlawful non-citizen from 7 August 2007 until 8 August 2007;
(iii)as a consequence, he fails to satisfy s 22(1)(b) and, therefore, the general resident requirement;
(iv)as he fails to meet the general residence requirement, he cannot be granted citizenship in accordance with s 24(1A).
10. Mr Melhem contends that:
(i)he was not an unlawful citizen in the relevant period because he held a bridging visa which had been granted to him when he applied for permanent residency and which came into effect automatically when his substantive visa expired;
(ii)if he became unlawful, it was because of an administrative error and the discretion in s 22(4A) should be exercised in his favour.
The issues
11. I have to decide:
(i)whether Mr Melhem satisfies the criteria for conferral of citizenship;
(ii)if he does not, whether there is any discretion to grant his application;
(iii)if there is such a discretion, whether it should be exercised.
Does Mr Melhem satisfy the general residence requirement
12. The purpose of a bridging visa is to prevent a person whose substantive visa has expired, and who has applied for another substantive visa, from becoming an unlawful non-citizen in the intervening period.
13. Applications for bridging visas are normally made in conjunction with a substantive visa, but not necessarily. For example, if a person’s substantive visa ceases by reason of an adverse merits review determination, an application for a bridging visa will be necessary to cover the period of any application for judicial review of that determination.
14. Some bridging visas granted under the Migration Act permit travel to, and entry into, Australia. Others permit a person to remain in Australia: item 010.511(b), Schedule 2 of the Regulations. Other bridging visas (for example, a bridging visa class B) permit the holder to do both.
15. A bridging visa class A does not permit a person to travel to, or enter, Australia, only to remain in Australia, and it ceases to have effect when a person leaves Australia: s 82(8) of the Migration Act. It is “in effect” from the time it is granted but will not actually “come into effect” in the sense that it is activated unless, and until, the substantive visa expires.
16. On 16 August 2006, Mr Melhem applied for an Employer Nomination Scheme visa subclass 856 which allows the visa holder and any dependent family members to live as permanent residents in Australia. By operation of item 1301 of Schedule 1 of the Migration Regulations 1994 (the Regulations) Mr Melhem’s application was also an application for a bridging visa class A, and he was granted a bridging visa class A on the same day. Mr Melhem was granted a visa subclass 856 on 23 November 2007. In the meantime, on 6 August 2007 his 457 visa expired.
17. Mr Melhem left Australia on 28 November 2006. His bridging visa ceased to have effect when he left Australia. As a result, when he returned on 2 February 2007, he no longer had a bridging visa to fall back on if his substantive visa expired.
18. Mr Melhem was not aware that his bridging visa had ceased to be in effect until he contacted an officer of the Department of Immigration and Citizenship (the Department) to clarify his status following the expiry of his 457 visa. There is some confusion in the evidence about the date of this conversation. Mr Melhem says he rang on 7 August 2007. A file note made by the Department’s officer suggests it was on 8 August 2007. In the end, nothing turns on this because the new bridging visa A was not issued until 8 August 2007 (and for reasons set out below, any conversation cannot be taken to constitute an application).
19. There is further confusion about when Mr Melhem’s application for a new bridging visa was received. He says he faxed and posted his application. What appears to be the posted copy is stamped as received by the Department on 10 August 2007. While there is no evidence of an earlier faxed copy, a copy must have been received by 8 August 2010 for the bridging visa A to have been issued that day.
20. There is some dispute about what was said during Mr Melhem’s conversation with the departmental officer but the effect was that he was advised he should make an application for a bridging visa. He says the officer told him that he had a bridging visa in the meantime. This advice, if it was given, does not make a lot of sense but, in the end, nothing turns on this point. Anything the officer said to Mr Melhem could make no difference to the effect of the legislation by which his bridging visa ceased to be in effect when he left Australia. In any event, Mr Melhem submitted his new application.
21. Mr Melhem submits that he should have automatically been granted a bridging visa when his subclass 457 visa expired. He says that, by virtue of his application for permanent residency on 16 August 2006, he had applied for a bridging visa; on 8 August 2007, when another bridging visa was granted, his original bridging visa was already in the system and had become effective – or should have become effective – on the expiry of the 457 visa. I do not agree.
22. In very limited circumstances, a bridging visa will come into effect without an application being made: see reg 2.21. However, none of those circumstances apply here.
23. By s 82(8) of the Migration Act, Mr Melhem’s bridging visa ceased to have effect when he left Australia. Until he was issued a further bridging visa on 8 August 2007, no visa was in effect and there was no means by which one could come into effect.
24. Mr Melhem has submitted a letter from the Department to a person he knows which advises that person that he or she has been granted a bridging visa A associated with a subclass 457 visa and that the bridging visa will come into effect on the day of the expiry of the substantive visa.
25. This letter does not assist Mr Melhem. It appears to do no more than advise of the usual operation of a bridging visa. Nothing is known about the circumstances of person it is addressed to and, in any event, had that person left Australia like Mr Melhem, it may be presumed that his or her bridging visa would have expired in the same way as Mr Melhem’s.
26. Mr Melhem’s application for a new bridging visa class A was received by the Department only two days after his substantive visa expired.
27. I have considered whether there is any provision by which Mr Melhem’s conversation with the departmental officer, whether on 7 or 8 August 2007, could constitute an application, meaning that his application would have been within time. However, there is no such provision in the Migration Act.
28. Section 46 of the Migration Act provides that a valid visa application is to be made in accordance with the Regulations. Reg 2.07(1) refers to schedule 1 and to approved forms for making applications. Reg 2.07(3) requires an applicant to compete an approved form.
29. Reg 2.09 allows for a schedule to provide that an application maybe made orally. However, schedule 1, clause 1301, which allows for bridging visa applications, makes no such provision
30. It follows that an application for a bridging visa must be in writing and Mr Melhem’s conversation with the departmental officer cannot constitute a valid application.
31. I find that, in the period 7 to 8 August 2007, after his substantive visa expired, and before he was granted a further bridging visa, Mr Melhem became an unlawful non-citizen. As he fails to satisfy s 22(1) of the Citizenship Act, he fails to satisfy the general residency requirement in the Act and cannot be granted citizenship.
Is there discretion to grant the application
32. Section 22 of the Citizenship Act provides for a number of circumstances in which a person may be taken to satisfy the general residency requirement despite not being in Australia for the required period. They are:
(i)where a person became an unlawful non‑citizen during the relevant period because of an administrative error: s 22 (4A);
(ii)where a person was confined to a prison or psychiatric institution: s 22 (5A);
(iii)if a person would suffer significant hardship or disadvantage: s 22 (6);
(iv)where the person is the spouse or de facto partner, or surviving spouse or de facto partner, of an Australian citizen: s 22 (9);
(v)where the person is in an interdependent relationship: s 22 (11).
33. Mr Melhem contends that the discretion should be exercised in his favour on the ground of administrative error and significant hardship or disadvantage.
Administrative error
34. Section 22(4A) provides:
For the purposes of paragraph (1)(b), the Minister may treat a period as one in which the 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.
35. The meaning of administrative error for the purposes of s 22(4A) is not defined in the Act. However, guidance can be found in Dranichnikov v Centrelink [2003] FCAFC 13 and in the Australian Citizenship Instructions (the Instructions) which are issued by the Secretary from time to time to guide decision-makers. It is well-settled that the Tribunal should apply policy in documents like the Instructions unless there are cogent reasons not to do so: Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634.
36. In Dranichnikov (above), the Full Federal Court considered the meaning of administrative error in s 97(2) of the ANew Tax System (Family Assistance) (Administration) Act1999 which obliged the Secretary to waive a debt if it was solely attributable to an administrative error by the Commonwealth.
37. The Court said 9 (at [62]) that it was not possible to formulate a meaning of administrative error that would cover every case that might arise but said:
Essentially, however, the concept is one where the error or mistake arises as a result of the procedure that has been adopted. An obvious example would be payment of a benefit where the decimal point was wrongly located. An error made by Centrelink or the Australian Taxation Office acting on its behalf in its administration of the law will generally be an administrative error. On the other hand, a decision made, for example, on a question of legal entitlement to a benefit while no doubt made in the course of administration of the law would not be an administrative error.
38. Chapter 5 of the Instructions cites as examples of administrative errors: unlawful cancellation of a visa, grant of a temporary visa to a permanent visa holder, and double processing of a visa application.
39. Mr Melhem asserts, firstly, that he should have been granted a bridging visa automatically when his subclass 457 visa expired, and the fact that he was required by the Department to lodge a formal application for a further bridging visa was an administrative error. Related to this, he says that it is not possible to apply for a bridging visa alone, but only as part of an application for a substantive visa.
40. There are some limited circumstances in which a bridging visa will come into effect without an application being made: see reg 2.21. However, none applies to Mr Melhem. The fact is that his bridging visa expired by operation of the legislation when he left Australia on 8 August 2007. In the absence of a further application, he could not be granted a further bridging visa.
41. Secondly, Mr Melhem says, the Department erroneously recorded the date on which his application for a further bridging visa was received. At the hearing, he maintained his application was received on 10 August 2007 and that the Department had altered its records to overcome its own error in failing to activate the bridging visa automatically.
42. There is nothing in the evidence to support this assertion. Furthermore, there is no basis for finding any error to be a relevant administrative error. Even if the faxed copy had been received by the Department on 7 August 2007, Mr Melhem would have been unlawful from midnight on 6 August 2007.
43. Related to this, Mr Melhem says that the Department’s movement record shows an application on 16 August 2006 (when he applied for permanent residency) and a bridging visa granted on 8 August 2007. He believes the Department erred in not automatically triggering his bridging visa on 7 August 2007 and tried to fix up the error by telling him to make a new application and then recording the grant from 8 August 2007.
44. Mr Melhem has provided no evidence to support that assertion and I am satisfied that it has no foundation.
45. Thirdly, Mr Melhem says, the Department should have advised him that his bridging visa had expired when he left the country and that he needed to apply again before his substantive visa expired.
46. I understand Mr Melhem’s frustration at having his eligibility for citizenship set back on account of one day but s 45(1) of the Migration Act makes clear that a person who wants a visa must apply for one. The onus was on him and not on the Department. I understand that he feels aggrieved that he was not advised, when he told the Department he was going overseas, that the bridging visa would cease to be in effect. However, the fat that that did not happen is not, in my view, a relevant administrative error for s 22(4A).
47. I am not satisfied that any of the errors on which Mr Melhem relies is an administrative error of the kind contemplated by s 22(4A) of the Citizenship Act. It follows that there is no ground for exercising the discretion in that section.
Significant hardship or disadvantage
48. Section 22(6) provides:
For the purposes of paragraph (1)(c), the Minister may treat a period as one in which the person was present in Australia as a permanent resident if:
(a)the person was present in Australia during that period (except as a permanent resident or an unlawful non‑citizen); and
(b)the Minister is satisfied that the person will suffer significant hardship or disadvantage if that period were not treated as one during which the person was present in Australia as a permanent resident.
49. Mr Melhem submits that he and his family are facing serious financial hardship at present; they have a large mortgage and might lose their property; his wife is taking care of the family and they rely on his income alone. Further, he says, if they need to travel overseas for any reason other than for a holiday, they will have to wait even longer before being eligible for citizenship.
50. Mr Melhem gives no details about his family’s financial situation but, even so, s 22 (6) specifically excludes a person who was present in Australia as an unlawful non-citizen from consideration.
Conclusion
51. I affirm the decision under review.
I certify that the 52 preceding paragraphs are a
true copy of the reasons for the decision
herein of Senior Member Jill TooheySigned: .....................[sgd].........................................................
Diana Weston AssociateDate of Hearing 21 October 2010
Date final submissions received 1 December 2010
Date of Decision 10 December 2010
ApplicantSelf-represented
Representative for the Respondent Mr Will Sharpe, Clayton Utz
30
1
3