Nkali and Minister for Immigration and Border Protection (Citizenship)

This matter concerned an application for Australian citizenship by conferral made by Mr Nkali. The Minister for Immigration and Border Protection affirmed a decision to refuse Mr Nkali's application. Mr Nkali sought review of the Minister's decision in the Administrative Appeals Tribunal.

The Tribunal was required to determine whether Mr Nkali met the general residence requirement for citizenship by conferral, specifically whether he was present in Australia as an unlawful non-citizen at any time during the four-year period immediately preceding his application on 27 March 2017. The Tribunal also considered whether any failure to meet this requirement arose from an administrative error, which would engage a Ministerial discretion under section 22(4A) of the *Australian Citizenship Act 2007* (Cth).

The Tribunal found that Mr Nkali was an unlawful non-citizen between 20 March 2016 and 13 May 2016, thus failing to meet the residence requirement under section 22(1)(b) of the Act. While Mr Nkali argued that this unlawful status was due to administrative error, specifically the failure of the Department to advise him to apply for a bridging visa and the non-issuance of one, the Tribunal noted that the onus was on the applicant to provide evidence of such an error. The Tribunal concluded that Mr Nkali had not discharged this onus, as it is incumbent upon an applicant to apply for appropriate visas and remain aware of their visa status.

Consequently, the Tribunal affirmed the decision under review, finding that Mr Nkali did not meet the residence requirements stipulated in section 22(1)(b) and (c) of the Act.