Nkali and Minister for Immigration and Border Protection (Citizenship)

[2019] AATA 76

Nkali and Minister for Immigration and Border Protection (Citizenship) [2019] AATA 76 (24 January 2019)

Division:GENERAL DIVISION

File Number(s):      2017/4946

Re:Patrick Chika-Nelle Nkali

APPLICANT

AndMinister for Immigration and Border Protection

RESPONDENT

DECISION

Tribunal:Senior Member A Poljak

Date:24 January 2019

Place:Sydney

The decision under review is affirmed.

...................[sgd].................................................

Senior Member A Poljak

CATCHWORDS

CITIZENSHIP – application for Australian citizenship by conferral – general residence requirement – whether unlawful non-citizen – whether present in Australia as a permanent resident – application of Ministerial discretions – administrative error – decision affirmed

LEGISLATION

Australian Citizenship Act 2007 (Cth) ss 5, 21, 22

Migration Act 1958 (Cth) ss 13, 14

CASES

Re Drake v Minister for Immigration and Ethnic Affairs (No 2) [1979] AATA 179; (1979) 2 ALD 634

SECONDARY MATERIALS

Department of Immigration and Border Protection (Cth), Citizenship Policy, 1 June 2016

REASONS FOR DECISION

Senior Member A Poljak

24 January 2019

1. Mr Nkali, the applicant, seeks review of a decision of a delegate of the respondent (the Minister) made on 21 July 2017, refusing the grant of the applicant’s application for Australian citizenship by conferral pursuant to section 21 of the Australian Citizenship Act 2007 (Cth) (the Act). The delegate refused the application on the basis that the applicant did not satisfy the general residence requirement in section 22(1)(a)-(c) of the Act.

   Immigration History

2. The applicant is a citizen of Zambia who first entered Australia on a subclass 676 Visitor Visa on 25 July 2003. On 6 October 2005, he was granted a subclass 866 Protection Visa (for which re-entry ceased on 6 October 2010). On 21 December 2010, he was granted a subclass 155 Resident Return Visa (first RR visa).

3. On 8 November 2015, the applicant departed Australia. While offshore, the applicant’s first RR visa ceased on 21 December 2015. On his return to Australia on 18 February 2016, he did not have a valid visa. The applicant was granted a subclass 773 Border Visa, valid until 19 March 2016. On 23 February 2016, the applicant applied for a further Resident Return Visa (second RR visa) and this was granted on 13 May 2016. Accordingly, between 20 March 2016 and 13 May 2016, the applicant did not hold a valid visa, and was an unlawful non-citizen in Australia during this time.

4. The applicant applied for Australian citizenship by conferral on 27 March 2017.

   Issues

5. Neither the special residence requirement nor the defence service requirement, as specified in section 21(2)(c) of the Act and further set out in sections 22A, 22B and 23, are applicable in these proceedings.

6. As for the general residence requirement, the applicant meets section 22(1)(a) of the Act, as he was present in Australia for 1259 days during the four-year period immediately before the day he made his application for citizenship on 27 March 2017. This is because as the total period of his absences was not more than 12 months, the applicant is deemed to have been present in Australia during each period of absence (section 22(1A) of the Act).

7. Accordingly, the issues for consideration in these proceedings are whether the applicant meets the requirements in section 22(1)(b) and (c) of the Act. Specifically, that the applicant:

   (a)was not present in Australia as an unlawful non-citizen at any time during the four-year period immediately before the day he made the application for citizenship; and

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

   Relevant Legislative Provisions

8. Section 21 of the Act sets out the eligibility requirements for citizenship. Relevantly section 21(2)(c) provides as follows:

   (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; and

   …

9. Section 22 of the Act relevantly 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.

   Overseas absences

   (1A)  If:

   (a)  the person was absent from Australia for a part of the period of 4 years immediately before the day the person made the application; and

   (b)  the total period of the absence or absences was not more than 12 months;

   then, for the purposes of paragraph (1)(a), the person is taken to have been present in Australia during each period of absence.

   (1B)  If:

   (a)  the person was absent from Australia for a part of the period of 12 months immediately before the day the person made the application; and

   (b)  the total period of the absence or absences was not more than 90 days; and

   (c)  the person was a permanent resident during each period of absence;

   then, for the purposes of paragraph (1)(c), the person is taken to have been present in Australia as a permanent resident during each period of absence.

   …

10. An “unlawful non-citizen” is defined in section 14 of the Migration Act 1958 (Cth) (the Migration Act), which provides “a non‑citizen in the migration zone who is not a lawful non‑citizen is an unlawful non‑citizen”. Section 13 of the Migration Act provides that a “non‑citizen in the migration zone who holds a visa that is in effect is a lawful non‑citizen”.

11. Sections 22(4A) to (11) of the Act provide for a number of Ministerial discretions. Relevantly, section 22(4A) and (5) provide for a Ministerial discretion in relation to sections 22(1)(b) and (c) respectively in circumstances of an ‘administrative error’.

    Citizenship Policy

12. The Citizenship Policy offers policy guidance on the interpretation and exercise of the powers under the Act. Although I am not bound to strictly apply the Citizenship Policy, it is government policy and should be considered if it is consistent with the Act and unless there are cogent reasons not to do so: Re Drake v Minister for Immigration and Ethnic Affairs (No 2) [1979] AATA 179; (1979) 2 ALD 634.

13. The Citizenship Policy at Chapter 3 provides further guidance in relation to assessing administrative error:

    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, some examples include:

    ·the applicant may have been granted a permanent visa but the decision maker accidentally recorded the grant of a temporary visa on the department’s system.

    ·the applicant was advised by the department that they were a lawful non­citizen 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…

    The onus is on the applicant to provide evidence that an administrative error has occurred…

    Consideration

    Section 22(1)(b) - Was the applicant present in Australia as an unlawful non-citizen at any time during the four-year period immediately before 27 March 2017?

14. The applicant applied for Australia citizenship by conferral on 27 March 2017, accordingly the relevant four-year period for the purpose of the residence requirement is 26 March 2013 to 26 March 2017. Having regard to the applicant’s immigration history as set out above, between 20 March 2016 and 13 May 2016, the applicant did not hold a valid visa and as such he was an unlawful non-citizen during this time.

15. Section 22(4A) of the Act confers a Ministerial discretion in respect of an applicant’s failure to meet the requirements of section 22(1)(b) where such failure arises because of an administrative error. In written submissions dated 17 August 2017, the applicant stated that he was “deemed to be covered by the application for [the second RR visa] while I await the issuant(sic) or a bridging visa would have been issued to me as is the standard practices of the Department. But none was issued to me. They told me I was not to worry”. The applicant also contends that he did all he could do to ensure he was lawful, but was not granted a bridging visa notwithstanding that he had sent his application for his second RR Visa prior to the expiry of his border visa. The applicant claims in written submissions filed on 30 November 2017, that this amounted to “an unreasonable lapse in complying with existing administrative procedures”.

16. In written submissions dated 27 March 2018, the applicant states that “there was never any information, after I had applied for the [second RR visa], that directed me to go and immediately applied for my bridging visa and, I ignored it”. He submits that he did all he could “as an ordinary person” and “should not suffer for the errors and oversight of the Minister and delegate”. He further contends that his case officer at the Department failed to advise him that he needed to apply for a bridging visa and that one would not automatically be issued to him while he was waiting for his second RR visa to be processed.

17. At hearing, the applicant confirmed that he understood that his Border Visa was temporary and was only valid for 30 days. He reiterated that he thought the bridging visa was automatic however he accepted that he didn’t check his visa status and that he received no notification that a bridging visa had been granted.

18. There is no evidence before me to support the applicant’s assertion that the Department told him that he was “not to worry”. The Department file with respect to the application for the second RR visa reveals no such interaction with the applicant either in writing or otherwise. The records show that the applicant contacted the Department on 9 March 2016, regarding the progress of his application. The applicant was informed that his application was “still in process” and was correctly informed that at that stage he was still on a Border Visa.

19. The applicant did not submit a separate application for a bridging visa to the Department. He appears to have incorrectly assumed that he would automatically be granted a bridging visa in connection with his application for the second RR visa. However, while an automatic application for a bridging visa is made when an applicant applies in Australia for certain types of visas, those types of visas do not include Resident Return Visas. As such, in circumstances where the applicant did not submit an application for a bridging visa, there was no administrative error made by the Minister in not granting the applicant a bridging visa. In regards to the applicant’s contention that the Department failed to notify him that he needed to apply for a bridging visa and that one would not automatically be issued to him while he was waiting for his second RR visa to be processed, this is not the responsibility of the Department, the onus is on the applicant to submit an application for an appropriate visa.

20. In light of the above, I’m not satisfied that the applicant’s failure to meet the requirements of section 22(1)(b) arose due to an administrative error. The discretion in section 22(4A) is therefore not enlivened and cannot be exercised to remedy the applicant’s failure.

    Section 22(1)(c) - Was the applicant present in Australia as a permanent resident for the period of 12 months immediately before 27 March 2017?

21. The relevant 12 month period in this matter is 26 March 2016 to 26 March 2017. A permanent resident is defined in section 5 of the Act, relevantly meaning a person who holds a permanent visa.

22. As detailed in the applicant’s immigration history above, the applicant’s first RR visa ceased on 21 December 2015 while he was offshore. Despite re-entering Australia on 18 February 2016, he did not resume permanent residence until 30 May 2016, when he was granted the second RR visa. Accordingly, the applicant was not a permanent resident for the relevant 12 month period, and his period of absence from Australia exceeded 90 days (section 22(1B)).

23. While the Ministerial discretion under section 22(9) of the Act provides that the Tribunal may treat a period as one where the person was present in Australia as a permanent resident where they are a spouse or de facto partner of an Australian citizen, the person must have been a permanent resident during that period. As the applicant’s permanent residency ceased on 21 December 2015, he is unable to benefit from section 22(9) of the Act. For the same reasons, the Ministerial discretion in sections 22A and 22B do not assist the applicant.

24. To the extent that the applicant seeks to engage the Ministerial discretion in section 22(5) of the Act to satisfy the 12 month permanent residency requirement, for the reasons already set out, I am not satisfied that administrative error has been established.

25. The applicant claims that he is suffering from significant hardship and disadvantage because he has missed out on many jobs which he is qualified for, simply because, he says, of the paramount requirement that he be an Australian citizen. He also claims that he suffers difficulty and disadvantage in regards to travel. As such, the applicant contends that the discretion in section 22(6) of the Act should be exercised. The Ministerial discretion under section 22(6) of the Act provides that the Tribunal may treat a period as one where the person was present in Australia as a permanent resident if it is satisfied 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. However, as the applicant’s permanent residency ceased on 21 December 2015, and he was present in Australia for a period of time during the relevant period as an unlawful non-citizen, he is unable to benefit from section 22(6) of the Act. In any event, having regard to the Citizenship Policy I am not satisfied that the circumstances described by the applicant amount to significant hardship and disadvantage.

26. The applicant also contends that at the time of departing Australia, the Department was aware that his first RR visa was about to cease, but they failed to notify him. I cannot make a finding either away about whether or not this is a correct submission, however; the onus is on the applicant to submit an application for an appropriate visa and to be aware of his visa status at all times.

    Decision

27. For the reasons outlined above, I find that the applicant does not meet the residence requirements in section 22(1)(b) and (c) of the Act. It follows that the decision under review should be affirmed.

I certify that the preceding 27 (twenty-seven) paragraphs are a true copy of the reasons for the decision herein of Senior Member A Poljak

...........................[sgd].........................................

Associate

Dated: 24 January 2019

Date(s) of hearing:	6 April 2018
Applicant:	In person
Solicitors for the Respondent:	Sparke Helmore Lawyers