Mina Farag and Minister for Immigration and Border Protection
[2014] AATA 927
•12 December 2014
[2014] AATA 927
Division GENERAL ADMINISTRATIVE DIVISION File Number(s)
2013/6704
Re
Mina Farag
APPLICANT
And
Minister for Immigration and Border Protection
RESPONDENT
DECISION
Tribunal Deputy President J W Constance
Date 12 December 2014 Place Sydney The Tribunal:
1. sets aside the decision of the delegate of the Minister dated 18 November 2013 to refuse Mr Farag’s application for citizenship;
2. remits the matter to the Minister for reconsideration in accordance with the direction that the period 28 November 2011 to 30 November 2011 is to be treated as if Mr Farag was not present in Australia as an unlawful non-citizen.
...........................[sgd]............................................
Deputy President J W Constance
Catchwords
CITIZENSHIP – residence requirement – applicant an unlawful non-citizen for three days in the four years prior to his application – whether discretion should be exercised to treat the period as if the Applicant was not present in Australia as an unlawful non-citizen – whether administrative error – advice in grant of bridging visa incomplete and misleading – administrative error caused the Applicant to become an unlawful non-citizen – decision set aside and remitted
Legislation
Australian Citizenship Act 2007 (Cth) ss 21(2), 22(1), 22(4A), 24
Migration Act 1958 (Cth) s 13Cases
Chaudhary and Minister for Immigration and Citizenship [2010] AATA 1006
Rogers and Minister for Immigration and Citizenship [2011] AATA 592
Secondary Materials
Australian Citizenship Instructions (Cth) (issued 4 July 2014)
REASONS FOR DECISION
Deputy President J W Constance
INTRODUCTION
Mr Farag lodged an application for Australian citizenship by conferral in November 2013.
A delegate of the Minister refused Mr Farag’s application on the ground that he failed to satisfy the general residence requirement set out in section 22 of the Australian Citizenship Act 2007 (Cth). This decision was made on the basis that Mr Farag was present in Australia as an unlawful non-citizen for a period of three days from 28 November 2011 to 30 November 2011.
Mr Farag has applied to the Tribunal for a review of the delegate’s decision. For the reasons which follow the decision under review will be set aside.
BACKGROUND
Mr Farag first arrived in Australia in 2006 on a student visa. Subsequently he was granted a series of student and bridging visas.
On 18 February 2010, Mr Farag was granted a Student (ClassTU) Subclass 572 visa. It was a condition of this visa that he be enrolled in a registered course of study.
Mr Farag applied for a Protection (Class XA) visa on 9 December 2010. The making of this application did not affect the status of his Student visa which continued in force.
The first letter: the grant of a Bridging visa
On 10 December 2010, Mr Farag received a letter from the Department of Immigration and Citizenship confirming that he had made an application for a Protection visa. [1] On page 1 of the letter Mr Farag was advised:
Your immigration status
You have been granted a bridging visa. This visa allows you to remain lawfully in Australia while your application is being processed. The bridging visa will only come into effect when any other substantive visa that you hold ceases. [Emphasis added]
[1] Exhibit R3
Page 2 of the letter contained the following advice to Mr Farag:
Generally your bridging visa will remain in effect until 28 calendar days after you are notified of the decision on your application.
It is not necessary for you to have a visa label placed in your passport, however, you should keep this letter with you for your reference. Further information about Bridging Visas is included in the attachment Form 1024i Bridging Visas.
You have been required to provide personal identifiers and have not yet provided them. If you do not provide the required personal identifiers within the specified period, your application will be invalid. Your bridging visa will cease 28 days after you are notified of the invalidity of your application.
Your bridging visa will cease if you leave Australia. ... [Emphasis added].
The second letter: refusal of Mr Farag’s application for a Protection visa
Mr Farag’s application for a Protection visa was refused in a decision made on 11 August 2011. In that decision, Mr Farag was advised of the following:
… you are entitled to apply to the Refugee Review Tribunal (RRT) for a review of this decision. An application for review of this refusal decision must be given to the RRT within the prescribed timeframe. This timeframe commences on the day on which you are taken to have been notified of this decision, and ends at the end of 28 days.
If you make a valid application for review of this decision, your bridging visa will remain in effect until 28 days after the RRT has notified you of its decision. If you withdraw your application for review to the RRT, your bridging visa will cease 28 days after that withdrawal…. [Emphasis added].
Mr Farag lodged a valid application for a review of the decision with the Refugee Review Tribunal on 5 September 2011.[2]
[2] Exhibit R2 p.8.
The third letter: notice of intention to consider cancellation of Mr Farag’s Student visa
On 20 October 2011, Mr Farag was sent a letter from the Department of Immigration and Citizenship notifying him of its intention to consider cancelling his Student visa as available records indicated that he was not enrolled in a registered course. On the fourth page of that letter Mr Farag was advised:
If your visa is cancelled you will become an unlawful non-citizen, unless you are granted a further visa. If you have made a further substantive visa application since your arrival in Australia, any bridging visa you were granted in relation to that application will cease.[3]
[3] Exhibit R2, p.18.
Mr Farag’s student visa was cancelled on 28 November 2011.[4] He was advised of this in a letter dated the same day. [5] On the third page of the letter the following appeared:
If you have made a further substantive visa application since your arrival in Australia, any bridging visa you were granted in relation to that application also ceased when your visa was cancelled.
[4] Exhibit R1, p.125, final paragraph.
[5] Exhibit R1 p.124
The letter also included the statement that:
As this letter was sent to you by Email, you are taken to have received this letter at the end of the day it was transmitted.
Mr Farag first received notice that his Student visa had been cancelled and that his Bridging visa had ceased when he was so advised in a telephone call from an officer of the Department at 3pm on 29 November 2011. He had not had an opportunity to check his e-mails prior to this call. In any event, he had become an unlawful non-citizen from the time of the decision to cancel his Student visa, sometime the previous day.[6]
[6] Exhibit R1 p.5.
During the telephone discussion on 29 November 2011, Mr Farag was advised to apply for another Bridging visa. He did this and a Bridging visa was granted to him on 30 November 2011. He has since been granted a Protection (Class XA) visa which he currently holds.
Mr Farag gave evidence that, until he received the telephone call from the departmental officer on 29 November 2011, he did not realise that cancellation of his Student visa would immediately cause him to become an unlawful non-citizen. If he had he would have taken further steps to protect his immigration status based on his Student visa. Sometime between receiving the letter of 20 October 2011 and the cancellation of his visa he had submitted a medical certificate to the Department in relation to his lack of enrolment. Nevertheless, he believed that he was entitled to lawfully remain in Australia under his Bridging visa.
Mr Farag impressed me as an honest witness who gave his evidence to the best of his recollection. I accept his evidence.
LEGISLATION
Applications for Australian citizenship by conferral are governed by the Australian Citizenship Act 2007 (Cth).
Section 24 of the Act provides, in part:
(1) If a person makes an application under section 21, the Minister must, by writing, approve or refuse to approve the person becoming an Australian citizen.
(1A) The Minister must not approve the person becoming an Australian citizen unless the person is eligible to become an Australian citizen under subsection 21(2), (3), (4), (5), (6), (7) or (8).
Subsection 21(2) of the Act establishes the requirements for eligibility for Australian citizenship. It provides, in part:
(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;
…
Section 22(1) provides that the general residence requirement will be satisfied where:
(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.
It is accepted that Mr Farag satisfies subsections 22(1)(a) and (c).
An unlawful non-citizen is defined in the Act to have the same meaning as under the Migration Act 1958 (Cth). Section 14 of the Migration Act provides that an unlawful non-citizen includes anyone in the migration zone who is not a lawful non-citizen. The migration zone includes Australian land. A lawful non-citizen is defined in section 13 of the Migration Act as a non-citizen within that zone “who holds a visa that is in effect”.
Section 22(4A) of the Citizenship Act confers a discretion on the decision maker. It provides:
(4A) 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.
The Tribunal stands in the shoes of the original decision-maker and, if appropriate, may exercise the same discretion.
Australian Citizenship Instructions
The Australian Citizenship Instructions have been adopted by the Minister to guide those making decisions under the Act. Subchapter 5.16 provides guidance on the exercise of the discretion in subsection 22(4A). It provides relevantly:
The discretion can only be exercised on condition that the legal status is absent ‘... because of an administrative error’. The condition can be divided into 2 parts:
§ there must be an administrative error (in other words, an error of a particular kind) and
§ the error must be the reason why the person lacks the necessary legal status (in other words, the error is the cause).
The concept of ‘administrative error’ embraces a range of administrative actions. In broad terms it will extend to administrative mistakes and circumstances in which incorrect information is provided.
…
The Instructions reflect government policy and are not binding on the Tribunal. However the Tribunal should apply such policy unless there are “cogent reasons to the contrary”. [7]
[7] Re Drake and Minister for Immigration and Multicultural and Ethnic Affairs (No.2) (1979) 2 ALD 634 at 645.
ISSUES FOR DETERMINATION
The issues raised by Mr Farag’s application for review are as follows.
(a)Was Mr Farag an unlawful non-citizen at any time during the 3 day period from 28 to 31 November 2011 inclusive?
(b)If so, should the Tribunal exercise the discretion given by subsection 22(4A) of the Act?
CONSIDERATION
Issue 1: Was Mr Farag an unlawful non-citizen at any time during the three day period from 28 to 30 November 2011 inclusive?
It is not in dispute that, at least during the whole of 29 November 2011 and part of the following day, Mr Farag did not hold a valid visa entitling him to be present in Australia. He was an unlawful non-citizen during this time.
Issue 2: Should the Tribunal exercise the discretion given by subsection 22(4A) of the Act?
The discretion is only enlivened if I consider that Mr Farag was an unlawful non-citizen during the relevant period “because of an administrative error”. I interpret the requirement that I “consider” this to be the situation to mean that I should be satisfied of this on the balance of probabilities, being the applicable standard of proof in applications such as this.
Was there an administrative error?
“Administrative error” is not defined in the Act. However, I note the Australian Citizenship Instructions state that “administrative error” extends to “circumstances in which incorrect information is provided”.
In Chaudhary and Minister for Immigration and Citizenship[8] Deputy President Handley said:
In my view, as Deputy President Purvis said in Liu, the ordinary meaning of the words ‘administrative error’ in the context of s 22 of the Act should be interpreted as a reference to a mistake or error made by the administrative or executive arm of government which, in this instance, affected the lawfulness of the person’s residence in Australia. The extrinsic material, which the Department has identified and to which reference can be made for the purposes set out above, are the Instructions, the relevant part of which is included at paragraphs [16] and [17] above. I note that the Instructions indicate that the words should be interpreted broadly but the examples given and the tenor of the text suggest, nevertheless, that the error should be interpreted as one made by the administrative or executive arm of government, although not necessarily by the Department itself.
[8] [2010] AATA 1006.
I agree with this statement but add that, in my view, the error may be the provision of incorrect information, including information which is misleading because it is incomplete. In this regard it is necessary to look to the words used in the statute. The only qualification of the word “error” is that it must be “administrative”.
I note what Deputy President Jarvis said in Rogers and Minister for Immigration and Citizenship[9]:
... It is incumbent on the Department to provide clear guidance to applicants, who in many cases will have language difficulties, and will generally be unaware of the complex requirements of the Migration Act and Regulations. If a Department’s communication is incomplete, internally inconsistent, inexact or inaccurate, this of itself might well constitute an administrative error within the meaning of s 22(4A).
[9] [2011] AATA 592 at [39].
When Mr Farag was granted the Bridging visa (the first letter, 10 December 2010) he was advised that it allowed him “to remain lawfully in Australia while [his] application [for a protection visa] is being processed”. This information was incorrect as the writer failed to add words to the effect “provided any substantive visa you hold now or in the future is not cancelled.”
The following sentence in the letter states that “[the] bridging visa will only come into effect when any other substantive visa that you hold ceases.” This statement too is misleading. It does not inform the reader that if the substantive visa ceases to have effect by reason of cancellation, the bridging visa will not come into effect at all.
The letter goes on to reinforce the impression that the Bridging visa will remain in effect until 28 days after determination of the Protection visa application or 28 days after the application becomes invalid. The letter proceeds to advise Mr Farag that the visa would cease if he left Australia. Again, the author failed to add words to the effect “or if a substantive visa held by you is cancelled.”
Along with the advice referred to in the preceding paragraph, the letter did include advice that further information was included in an attachment to the letter. The attachment was a three page document with two columns per page.
In the first column of the first page of the attachment, the following information is provided:
Note: A bridging visa granted to keep a non-citizen lawful while a substantive visa application is being considered, will cease if it is found the substantive visa application is invalid. If this happens you will be notified by letter that your bridging visa will cease 28 days after the date of that letter.
Merits review
If a non-citizen has applied for merits review of a decision to refuse a substantive visa application within the relevant time limits, and held a bridging visa during the processing of the application by the Department of Immigration and Citizenship (the department), that bridging visa will remain in effect during the merits review proceedings. It is unnecessary to apply for a new bridging visa for such proceedings.
Again, these statements do not alert the reader to the possibility that the bridging visa will cease to have effect if a substantive visa is cancelled. They merely reinforce the statements made in the body of the letter.
On the second page of the attachment appears the heading “When does a bridging visa give lawful status?” This is followed by the statement:
A bridging visa comes into effect when it is granted, unless you hold a substantive visa in which case it comes into effect when that visa ceases.
The representative for the Minister relied upon the paragraph which immediately followed this statement. It reads, in part;
A bridging visa granted to keep a non-citizen lawful while a substantive visa application is being considered will cease:
……
·on cancellation of any substantive visa held (Bridging visas A, B and C only).
It is to be noted that this advice is limited to Bridging visas A, B and C only. In the body of the letter, Mr Farag was advised that he had been granted a “bridging visa” with no reference to the class thereof. Only on the third page of the attachment was there advice that “[from] 1 July 2009, Protection visa applicants who hold a substantive visa at the time of their application, will be granted a Bridging visa A with permission to work.” It was not made clear that this Bridging visa, and the accompanying permission to work, did not come into effect until the substantive visa ceased. In my view, this statement suggested that it did come into effect, contrary to the earlier advice.
Taken as a whole, the advice contained in the letter of 10 December 2010 was incomplete and misleading. For this reason I am satisfied that the provision of such information was an administrative error.
Did Mr Farag become an unlawful non-citizen because of the administrative error?
Having decided that there has been administrative error it is necessary to decide whether Mr Farag became an unlawful non-citizen “because” of that administrative error. There must be shown to be a causative link.
Based on his evidence, I am satisfied that Mr Farag genuinely held the belief that if his Student visa was cancelled he would remain a lawful non-citizen until his application for a Protection visa had been determined. There is nothing to suggest that Mr Farag formed this view other than as a result of what he was told in the letter of 10 December 2010. I am satisfied on the balance of probabilities that the advice contained in the letter was the cause of his belief. In reaching this conclusion, I have taken into account that a reasonable reader of the letter would form the same view.
Further, on the basis of the evidence of Mr Farag, I am satisfied that because he held the view that he was entitled to remain in Australia in accordance with the Bridging visa, he did not take additional steps by way of representations to the Department to prevent the cancellation of his Student visa or to obtain another Bridging visa before his Student visa and existing Bridging visa ceased to have effect. As a result he became an unlawful non-citizen.
In reaching this conclusion I have considered whether the advice provided to Mr Farag in the letter of 20 October 2011 had the effect of breaking the chain of causation between the administrative error and his becoming an unlawful non-citizen. I accept Mr Farag’s evidence that, although he received this letter, he maintained the view which he had formed previously. The letter of 10 December 2010, which specifically dealt with the terms of the grant of the Bridging visa, repeatedly suggested that Mr Farag would be able to remain in Australia under the Bridging visa until his application for a Protection visa was determined. In view of the evidence of Mr Farag, I do not consider that the advice in the letter of 20 October 2011, which primarily dealt with the impending cancellation of his student visa, was sufficiently clear to break the chain of causation.
The advice given to Mr Farag in the letter of 28 November 2011 is irrelevant to the issue before me. By the time this letter was received by Mr Farag his visa had been cancelled and he had already become an unlawful non-citizen.
Taking into account the circumstances which caused Mr Farag to become an unlawful non-citizen, the short time in which he was unlawful and the fact that he acted swiftly to obtain another Bridging visa, the discretion given by subsection 22(4A) of the Act should be exercised in Mr Farag’s favour. The period, being 28 November 2011 to 30 November 2011 inclusive, should be treated as one in which Mr Farag was not present in Australia as an unlawful non-citizen.
CONCLUSION
The decision under review, being the decision made 18 November 2013 refusing Mr Farag’s application for Australian citizenship by conferral, will be set aside.
In accordance with section 43 of the Administrative Appeals Tribunal Act 1975 (Cth) the matter will be remitted for reconsideration in accordance with these reasons.
I certify that the preceding 51 (fifty-one) paragraphs are a true copy of the reasons for the decision herein of Deputy President J W Constance ...........................[sgd].............................................
Associate
Dated 12 December 2014
Date(s) of hearing 17 October 2014 Date final submissions received 17 October 2014 Solicitors for the Applicant K Oncu; Legal Edge Australia Solicitors for the Respondent A Carr; DLA Piper Australia
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