Mohamed Mashoor Mohamed Marzook and Minister for Immigration and Border Protection Senior Member R W Dunne 16 December 2014 16 December 2014 Adelaide

[2014] AATA 934

[2014] AATA 934

Division	GENERAL ADMINISTRATIVE DIVISION
File Number	2014/2728
Re	Mohamed Mashoor Mohamed Marzook
APPLICANT
And	Minister for Immigration and Border Protection
RESPONDENT

WRITTEN REASONS FOR DECISION

Tribunal	Senior Member R W Dunne
Date	16 December 2014
Date of written reasons	16 December 2014
Place	Adelaide

1.          On 9 December 2014, the Tribunal heard an application for review of a decision of a delegate of the respondent refusing an application for Australian citizenship by conferral made by the applicant.  The application was refused by the delegate on 22 May 2014. 

2.          The Tribunal has decided to affirm the decision under review and to provide written reasons for the Tribunal’s decision. 

3.          The written reasons are attached. 

........................[Sgd]................................................

Senior Member R W Dunne

CATCHWORDS

IMMIGRATION AND CITIZENSHIP – application for citizenship – refusal by the delegate – general residence requirement not met – whether applicant was unlawful non-citizen – exercise of discretion – discretion not exercised – decision under review affirmed.

LEGISLATION

Australian Citizenship Act 2007 (Cth), ss 3, 21 and 22

CASES

Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) ALD 634

SECONDARY MATERIALS

Australian Citizenship Instructions

REASONS FOR DECISION

Senior Member R W Dunne

16 December 2014

INTRODUCTION

1. The applicant in this case is Mohamed Mashoor Mohamed Marzook.  He applied for citizenship by conferral under the Australian Citizenship Act 2007 (Cth) (“2007 Act”) on 29 May 2014. Following the decision by the delegate to refuse his application for citizenship, he seeks review of that decision by this Tribunal.

2. At the hearing the applicant represented himself (with the assistance of an interpreter) and the respondent was represented by Ms V Greenslade from the office of the Australian Government Solicitor. I admitted the T documents, lodged pursuant to s 37 of the Administrative Appeals Tribunal Act 1975, into evidence.[1]

   [1] Exhibit R1.

   ISSUES FOR THE TRIBUNAL

3. The issues for the Tribunal are:

   (a)Whether the applicant should be granted Australian citizenship.

   (b)Whether the discretion should be exercised to treat the period as one in which the applicant was not present in Australia as an unlawful non-citizen if the Minister (or this Tribunal standing in the shoes of the Minister) considers the applicant was present in Australia during that period but, because of an administrative error, was an unlawful non-citizen during that period.

   THE 2007 ACT

4. Section 21(2) of the 2007 Act provides that a person is eligible to become an Australian citizen if, among other things, the decision-maker 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;

   …”

5. The applicant has not claimed that he completed relevant defence service, nor did he claim to have met the special residence requirement.  The general residence requirement is contained in s 22 of the 2007 Act and provides:

   “General residence requirement

   (1)   Subject to this section, for the purposes of section 21 a person satisfies the general residence requirement if:

   (a)the person was present in Australia for the period of 4 years immediately before the day the person made the application; and

   (b)the person was not present in Australia as an unlawful non-citizen at any time during that 4 year period; and

   (c)the person was present in Australia as a permanent resident for the period of 12 months immediately before the day the person made the application.”

   POLICY GUIDANCE

6. In relation to the general residence requirement in s 22, Chapter 5 of the current Australian Citizenship Instructions (“Instructions”) relevantly states:

   “To meet the general residence requirement (s22) a person is required to have been lawfully present in Australia for a period of four years immediately prior to making their application, including the last 12 months as a permanent resident.

   …

   Under s 22(1)(b), a person cannot meet the general residence requirement if they have been an unlawful non-citizen at any time during the 4-year period immediately before applying for citizenship.  This means they will need to have spent 4 years in Australia since last ceasing to be an unlawful non-citizen before meeting the general residence requirement, unless they became unlawful because of administrative error – see Section 5.16 Ministerial discretion – administrative error (s 22(4A) & (5)).

   …”.

7. The expression “unlawful non-citizen” is referred to in clause 5.15.2 of the Instructions and it states:

   “An unlawful non-citizen is a person who is not an Australian citizen and is present in Australia without a valid visa.”

8. Section 22(4A) of the 2007 Act refers to the Ministerial discretion.  It 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.”

   MINISTERIAL DISCRETION

9. Where s 22(4A) applies, the Instructions provide guidance in relation to the exercise of the discretion in that section.  The Tribunal should have regard to the Instructions unless there is good reason not to do so (Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) ALD 634). The relevant paragraphs of the Instructions relating to s 22(4A) and administrative error are set out in Chapter 5 and read:

   “5.16 Ministerial discretion - administrative error (s22(4A) & (5))

   Under s22(4A) and (5) the Minister has a discretion to count for the purposes of s22(1)(b) and (c) (respectively) periods spent in Australia during which the necessary legal status was absent, provided certain requirements are met (although the specific sections do not apply to people who were permanent residents immediately before 1 July 2007 - in these circumstances the equivalent provisions under s5B of Schedule 3 of the Transitional Act apply instead).

   Under s22(4A) 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 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. While each case will need to be assessed on its own merits, specific examples include the following:

   •    the applicant may have been granted a permanent visa but the decision maker accidentally recorded the grant of a temporary visa in ICSE

   •    the applicant was advised by the department that they were a lawful non-citizen when in fact they were unlawful

   •    the applicant had been entitled to a permanent visa but made an application for a temporary visa as a result of incorrect advice from an officer of the department.

   ...

   In order for this discretion to be applied, the onus is on the applicant to provide evidence that an administrative error has indeed occurred. All reasonable efforts should be made by the decision maker to verify the applicant’s claims. The department may on its own initiative take action where the department can identify a clear case of administrative error and apply this discretion on the applicant’s behalf.

   …”

   BACKGROUND AND EVIDENCE OF APPLICANT

10. The applicant was initially granted a temporary “TU 573” Student visa on 2 March 2007 and was then granted, by way of Ministerial intervention, a Class CB (Subclass 151 Former Resident) permanent visa on 17 September 2012.  He confirmed that he lives in Australia with his wife, his two sons and his two daughters.  He described his occupation as a computer programmer.  When it was suggested to the applicant that he had been present in Australia without a visa on two occasions between 13 June 2011 and 21 June 2011 (the first occasion) and 6 July 2012 and 9 July 2012 (the second occasion), the applicant said that he had not received notices (or warnings) about new visa meetings with the respondent.  When he was referred to the “notice of conditions and security” relating to one of the meetings to take place on 6 July 2012 at 2pm, he said the notice he had received from the respondent differed from that appearing in the T-documents.  He said there had been typing or writing mistakes that had occurred in the notices he had received from the respondent.  He had signed the notice dated 1 June 2012, but when the respondent had sent a signed notice to him the date of the meeting and time was different.  Without a warning from the respondent, the applicant said he was not aware that he could not stay in Australia without a visa.

    RESPONDENT’S CONTENTIONS

11. The relevant period for consideration for the purposes of ss 22(1)(a) and 22(1)(b) is the period from 9 May 2010 to 8 May 2014, that is the four years immediately before the day the respondent received the applicant’s citizenship application.

12. At the time of his application for citizenship it was not disputed by the respondent that the applicant satisfied s 22(1)(a) of the 2007 Act.  However, the respondent contended that the effect of s 22(1)(b) is that, if the applicant was in Australia as an unlawful non-citizen at any time during the four year period prior to his citizenship application, he would not be eligible for a grant of citizenship.

13. According to the applicant’s visa records he did not hold a valid visa for the following periods during the relevant four year period:

    ·13 June 2011 to 21 June 2011; and   

    ·6 July 2012 to 9 July 2012. 

14. Although the applicant was in Australia during those periods it was contended that he was in Australia as an unlawful non-citizen during the four year period immediately before the day he applied for citizenship.  Therefore, he did not satisfy s 22(1)(b) of the 2007 Act. 

    APPLICANT’S CLAIMS

15. As stated in paragraph 10 above, the applicant claimed that there had been an administrative error when the respondent failed to warn him of the next visa meeting that was to take place between the parties.  When the applicant was questioned about the documents he had received from the respondent about the visa meetings, he said he had destroyed all the meeting documents.  The documents had been either typed or hand-written by a delegate of the respondent.

16. The applicant said that when he was required to renew his visa at the relevant time, he did so.  If he did not, then the respondent would have to inform him immediately in writing or verbally to prevent the situation occurring again.

    CONSIDERATION

    Should the applicant be granted Australian Citizenship?

17. The respondent submitted that s 22(1)(b) of the 2007 Act had not been satisfied on the occasions between 13 June 2011 and 21 June 2011 and between 6 July 2012 and 9 July 2012.  On the evidence available, I accept that s 22(1)(b) was not satisfied on at least one of the two occasions, namely, between 6 July 2012 and 9 July 2012.

18. The applicant did not deny that he was not present in Australia on the two occasions.  He said he was in Australia on those occasions, but had arranged for visas to be issued to cover the periods involved.  He had attended meetings with the respondent on the dates the meetings had been arranged and was not without a visa as an unlawful non-citizen.  On the material that is before me, I am unable to accept this evidence.  In my view, the information contained in the T-documents[2] suggests that, on 1 June 2012, it was necessary for the applicant to meet with the respondent on 6 July 2012 for a visa meeting at 2pm.  He did not do this and, in those circumstances, s 22(1)(b) was not satisfied.  It follows that, as the general residence requirement has not been satisfied, the applicant is not eligible to become an Australian citizen.

    Should the discretion be exercised to treat the period in which the applicant was present in Australia as an unlawful non-citizen as a person who was not present in Australia during that period because of an administrative error?

    [2] Exhibit R1, pages 68-69.

19. It was the respondent’s submission that there was no administrative error.  The signed documents that the applicant had received from the respondent were the same as those appearing in the T-documents.  The applicant was unable to provide copies of the meeting documents he said he had received from the respondent and was unable to explain why they had been destroyed.  As far as the applicant’s argument that he should have been warned about future visa meetings, Ms Greenslade submitted (correctly in my view) that the respondent had no responsibility under the 2007 Act to do this. 

20. As noted above, s 22(4A) provides for the purposes of s 22(1)(b), that the Minister (or this Tribunal standing in the shoes of the Minister) may treat a period as one in which the applicant was not present in Australia as an unlawful non-citizen, if the decision-maker considers the person was present in Australia during that period but, because of an administrative error, was an unlawful non-citizen during that period.  In the circumstance, and having regard to the applicant’s evidence and the policy appearing in Chapter 5 of the Instructions, I am not prepared to exercise the discretion contained in s 22(4A) of the 2007 Act.

    CONCLUSION

21. I am satisfied that the applicant failed to satisfy s 22(1)(b) of the 2007 Act, and thus does not meet the general residence requirement to be eligible for Australian citizenship.  I have also found there is no evidence that, during the period between 6 July 2012 and 9 July 2012, the applicant’s status as an unlawful non-citizen was caused by an administrative error on the part of the respondent.

    DECISION

22. For the reasons outlined above, the Tribunal affirms the decision under review.

I certify that the preceding 22 (twenty -two) paragraphs are a true copy of the reasons for the decision herein of Senior Member R W Dunne

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Administrative Assistant

Dated 16 December 2014

Date(s) of hearing	9 December 2014
Applicant	In person
Advocate for the Respondent	Ms V Greenslade
Solicitors for the Respondent	Australian Government Solicitor