Nayeem and Minister for Immigration and Border Protection
[2014] AATA 171
•28 March 2014
[2014] AATA 171
Division GENERAL ADMINISTRATIVE DIVISION File Number(s)
2013/2988
Re
Abul Hasnat Md Nayeem
APPLICANT
And
Minister for Immigration and Border Protection
RESPONDENT
DECISION
Tribunal Senior Member A K Britton
Date 28 March 2014 Place Sydney The Decision under review is affirmed.
......................[SGD]..................................................
Senior Member A K Britton
CATCHWORDS
MIGRATION – Citizenship – General residence requirement – whether the Minister was incorrect in assessing the Applicant as an unlawful non-citizen for part of the four year period prior to applying for citizenship – Whether a delay in processing the Applicant’s visa can be construed as an “administrative error” – Decision affirmed
LEGISLATION
Australian Citizenship Act 2007 (Cth) – ss 3; 21(2)(c); 22(1)(b); 22(4A);
Migration Act 1958 (Cth) – ss 13(1); 14(1); 31(3); 68(3); 73; 77; 82(3); 494C
Migration Regulations 1994 (Cth) – Schedule 2REASONS FOR DECISION
Senior Member A K Britton
28 March 2014
Abul Hasnat Md Nayeem applies to the Administrative Appeals Tribunal for review of the decision made by a delegate of the Minister for Immigration and Border Protection, to refuse his application for Australian citizenship. The stated reason for that decision was Mr Nayeem’s failure to satisfy one of the criteria for the grant of citizenship, the residence requirement, specifically the general residence requirement (s 21(2)(c) of the Australian Citizenship Act 2007 (Cth) (the Citizenship Act)). That requirement will be satisfied if, among other things, the citizenship applicant was not present in Australia as an unlawful non-citizen in the four years before making their application for citizenship (s 22(1)(b)). The delegate found that Mr Nayeem was present in Australia as an unlawful non-citizen for six days in the four years prior to making his application for citizenship on 30 March 2013 (the relevant period), and, therefore did not satisfy the residence requirement.
Prior to being granted a Skilled (Provisional) (Class VC) visa (the substantive visa) in August 2010, Mr Nayeem held a number of bridging visas, a class of temporary visas. Whether, as the Minister asserts, Mr Nayeem was an unlawful non-citizen during the relevant period turns on whether he held a bridging visa between 2 April 2010 and 8 April 2010, and, if not, whether the power conferred by s 22(4A) of the Act to treat that period as one where Mr Nayeem was not present in Australia as an unlawful non-citizen because of an “administrative error”, can be exercised.
When did Mr Nayeem’s first Bridging Visa A cease to have effect?
According to the Department’s records Mr Nayeem was granted a Class WA, Subclass 020 visa (Bridging Visa A) on 20 February 2008 (the first BVA).
Subsequently Mr Nayeem applied for, and on 29 April 2008 was granted, a Class WB, Subclass 020 visa (Bridging Visa B) (the BVB). The reason he made that application was because he wanted to visit his family in Bangladesh and under a Bridging Visa A, he would not have been permitted to re-enter Australia.
I understand Mr Nayeem to contend that the first BVA did not expire until 35 days after the day he applied for judicial review of the decision of the Migration Review Tribunal on 23 February 2010, to refuse to grant his application for a substantive visa (the MRT decision). If that proposition is correct, the first BVA would have expired on 26 April 2010 (35 days after Mr Nayeem applied for judicial review of the MRT decision).
Schedule 2 of the Migration Regulations 1994 (Cth) (the Regulations) sets out when a Bridging Visa A is in effect and provides (emphasis added):
010.5--When visa is in effect
010.511
In 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, or purports to apply, for merits review of that refusal:
(A)28 days after notification by the review authority:
(I)of its decision on the merits review; or
(II)that the application for merits review was not made in accordance with the law governing the making of applications to that review authority; or
(B)if the holder has the right to apply to another review authority for merits review of the decision of the review authority and so applies, or purports to apply--28 days after notification by the other review authority:
(III)of its decision on the merits review; or
(IV)that the application for merits review was not made in accordance with the law governing the making of applications to that review authority; or
(iv) the grant of another bridging visa to the holder in respect of the same substantive visa application; or
…
The effect of clause 101.511 is that a Bridging Visa A ceases to have effect when one of a number of specified events occurs. Of the events listed in that clause the grant to Mr Nayeem of a Bridging Visa B on 29 April 2008 was first in time (clause 101.511(b)(iv)). Accordingly the first BVA ceased to have effect on 29 April 2008.
When did Mr Nayeem’s Bridging Visa B cease to have effect?
The Minister contended at hearing that when the BVB was granted to Mr Nayeem it was granted for a fixed period, 29 April 2008 to 2 April 2010. After the hearing, Mr Nayeem provided the Tribunal with a copy of a page of his passport bearing the stamp of the BVB. The stamp made no reference to an expiry date and read:
Visa permits you to remain in Australia until 28 days after notification of the primary decision or decision by a review authority or remittal or withdrawal of your application in respect of [the application for the substantive visa].
At my invitation both parties prepared written submissions about whether in light of this new information, Mr Nayeem’s BVB, ceased to have effect on 2 April 2010. I have taken those submissions into account in these reasons.
While the available material does not reveal when Mr Nayeem’s BVB was given a 2 April 2010 expiry date, it would appear from information provided to the Tribunal by Mr Nayeem (Exhibit A1) and the analysis below that it was after the MRT decision was handed down.
Schedule 2 of the Regulations sets out when a Bridging Visa B is in effect and provides (emphasis added):
020.5 When visa is in effect
020.511
In 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
…
The Migration Review Tribunal (MRT) is a “review authority” for the purpose of the Regulations (reg 1.03). Mr Nayeem did not have the right to apply to another review authority for merit review of the MRT’s decision. By the operation of clause 021.511(b)(iii) Mr Nayeem’s BVB expired 28 days after he was notified of the MRT decision.
The MRT notified Mr Nayeem of its decision by way of letter dated 24 February 2010 sent by registered post on the same day. Mr Nayeem was deemed to have been notified of the MRT decision seven working days from the date of that letter, that is, 5 March 2010 (s 494C of the Migration Act 1958 (Cth) (the Migration Act)).
Accordingly the BVB ceased to have effect 28 days after 5 March 2010, that is, 2 April 2010.
When did Mr Nayeem’s second Bridging Visa A come into effect?
After being notified of the MRT decision Mr Nayeem applied for a further bridging visa. A Bridging Visa A comes into effect: (i) on grant; or (ii) when the substantive visa (if any) held by the holder ceases (clause 010.511(a) of Schedule 2 of the Regulations).
Mr Nayeem was granted a Class WA, Subclass 010 visa (Bridging Visa A) (the second BVA) on 8 April 2010. It was not until some months later that he was granted a substantive visa. It follows that the second BVA came into effect on 8 April 2010.
Did Mr Nayeem hold a bridging visa between 2 April 2010 and 8 April 2010?
Mr Nayeem contends that he held a bridging visa between 2 April 2010 and 8 April 2010. The Minister disagrees.
Mr Nayeem’s primary contention, that his first BVA did not expire until on or after 8 April 2010, has been dealt with above (see paragraphs [3]- [7]).
Mr Nayeem also argues that if, as asserted by the Minister, he did not hold a valid visa immediately prior to 8 April 2010, the Minister would have been prevented from granting him a bridging visa on that date.
The Migration Act provides that the Minister may grant a bridging visa if satisfied that an eligible non-citizen satisfies the criteria for a bridging visa (s 73 of the Migration Act). At the relevant time a person applying for a Bridging Visa A was required to satisfy the primary criteria set out in clause 010.2 of Schedule 2 of the Regulations.
Clause 010.2 of Schedule 2 of the Regulations provides that the primary criteria will be satisfied if the applicant meets the requirement of subclause (2), (3), (4), (5) or (6). It appears that Mr Nayeem was found to satisfy subclause (3), which provides:
(3) An applicant meets the requirements of this subclause if:
(a)the applicant:
(i) has made, in Australia, a valid application for a substantive visa of a kind that can be granted if the applicant is in Australia; and
(ii) held a substantive visa when he or she made the application; and
(aa)that application was refused; and
(b)either:
(i) the applicant, or the Minister, has applied, within statutory time limits, for judicial review of a decision in relation to the applicant's substantive visa application; or
(ii) the applicant:
(A)is a member of the family unit of a person whose substantive visa application is the subject of the judicial review proceedings mentioned in subparagraph (i); and
(B)made a substantive visa application that was combined with the substantive visa application mentioned in subparagraph (i); and
(c)at the time of that application, he or she held a Bridging A (Class WA) or Bridging B (Class WB) visa; and
(d)the judicial review proceedings (including proceedings on appeal, if any) are not completed.
In addition the Regulations require that an applicant for a bridging visa be: (i) in Australia but not immigration clearance (clause 010.411), and; (ii) an eligible non-citizen at the time of grant (clause 010.4).
The above provisions do not require a person to hold a valid bridging visa at the time a Bridging Visa A is granted. Mr Nayeem has not taken me to any provisions in either the Migration Act or the Regulations to support his contention that the Minister was prevented from granting him a bridging visa on 8 April 2010 because his previous bridging visa expired six days earlier. Even if he is correct it does not follow, as Mr Nayeem suggests, that this purported defect required the Minister to backdate the BVA to 2 April 2010.
Summary
Mr Nayeem’s first BVA ceased to have effect when his BVB was granted on 29 April 2008. His BVB ceased to be in effect on 2 April 2010. His second BVA came into effect on 8 April 2010. His actions in applying for judicial review and applying for a new bridging visa within 35 days of the MRT decision have no bearing on either the date the BVB ceased to have effect, or the date the second BVA came into effect. It follows that Mr Nayeem did not hold a bridging visa between 2 April 2010 and 8 April 2010.
Was Mr Nayeem an unlawful non-citizen between 2 April 2010 and 8 April 2010?
A non-citizen holds a visa during a “visa period”, which is defined by s 77 of the Migration Act as the period that runs from the time the visa is granted until it ceases to be in effect (with an exception that is irrelevant here, pursuant to s 82(3)). Section 68(3) provides that a visa is only in effect during the visa period.
Under the Migration Act a non-citizen in the migration zone (relevantly the States and Territories of Australia) who holds a visa that is in effect, is a lawful non-citizen (s 13(1)). Conversely a non-citizen in the migration zone who is not a lawful non-citizen is an unlawful non-citizen (s 14(1)). The term “unlawful non-citizen” as used in the Citizenship Act has the same meaning as in the Migration Act (s 3 of the Citizenship Act). Mr Nayeem did not hold a visa between 2 and 8 April 2010 and was therefore an unlawful non-citizen during that period.
Can the period between 2 April 2010 and 8 April 2010 be treated as a period Mr Nayeem was present in Australia as a lawful non-citizen?
Mr Nayeem contends that the Department delayed processing his application for a bridging visa and that delay constitutes an “administrative error” within the meaning of s 22(4A) of the Citizenship Act. The Minister disagrees.
Section 22(4A) of the Citizenship Act provides:
Ministerial discretion--administrative error
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.
Mr Nayeem claims that he sent his application for a bridging visa to the Department by express post on the same day he lodged his application for judicial review of the MRT decision, namely 22 March 2010. He contends that as a result of Departmental officers being in “holiday mode” (in 2010, the four-day Easter weekend commenced on 2 April and finished on 4 April 2010), the processing of his application for a bridging visa was delayed.
The Act does not define the term “administrative error”. The Australian Citizenship Instructions provides the following guidance and list examples of administrative error (emphasis added):
…
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.
A delay in processing an application does not constitute an administrative error in itself.
….
For current purposes I will assume as claimed that Mr Nayeem posted his application for a bridging visa on 22 March 2010. Assuming that the application was received the following day, it means that nine clear working days passed before Mr Nayeem’s second BVA was granted.
There is no evidence and nor is it suggested that the Department guarantees or advises visa applicants that an application for a bridging visa received by post will be processed within a specified period. The term “administrative error” in the context of s 22(4A) of the Citizenship Act in my opinion should be construed as meaning an error or mistake of an administrative nature. It does not in my opinion extend to all shortcomings in the practice and procedures of the Department, even those that might adversely affect a visa applicant. Even if, as Mr Nayeem contends, nine working days to process a visa application constitutes an unreasonable delay, I am not persuaded it constitutes an administrative error within the meaning of s 22(4A) of the Citizenship Act.
DECISION
Mr Nayeem was present in Australia as an unlawful non-citizen for six days in the relevant period and therefore does not satisfy the general residence requirement (s 22(1)(b) of the Citizenship Act). Nor does he satisfy the special residence requirement (ss 22A or 22B of the Citizenship Act), or defence service requirement (s 23 of the Citizenship Act). Accordingly he was ineligible for Australian citizenship when he applied for citizenship in March 2013 and the decision under review must be affirmed.
I certify that the preceding 33 (thirty -three) paragraphs are a true copy of the reasons for the decision herein of Senior Member A K Britton .........................[SGD]...............................................
Associate
Dated 28 March 2014
Date(s) of hearing 3 March 2014 Date final submissions received 24 March 2014 Applicant In person Solicitors for the Respondent DLA Piper Australia
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