Rana and Minister for Immigration and Border Protection (Citizenship) - [2017] AATA 2167

Rana and Minister for Immigration and Border Protection (Citizenship) [2017] AATA 2167 (13 November 2017)
Division:GENERAL DIVISION
File Number(s): 2016/3272
Re:Md Sohel Rana
APPLICANT

AndMinister for Immigration and Border Protection
RESPONDENT

DECISION
Tribunal:Member K. Parker
Date:13 November 2017
Place:Melbourne

The Tribunal sets aside the decision under review. The Tribunal remits Dr Md Sohel Rana’s application for conferral of citizenship for reconsideration with a direction that as at 20 January 2016, he met the general eligibility requirement under s 21(2)(c) of the Australian Citizenship Act 2007 as he satisfied the general residency requirement under s 22 of the Act.
[sgd]........................................................................
Member K. Parker
Citizenship – Application for conferral of citizenship under the Australian Citizenship Act 2007 – general eligibility criteria – general residency requirement – whether discretion enlivened under s 22(4A) of the Australian Citizenship Act 2007 – whether applicant present in Australia unlawfully because of an administrative error – consideration of Departmental procedures in place at the time - whether decision about validity of student visa application constituted an administrative error – whether decision about the manner of notification of an invalid visa application constituted an administrative error
Legislation
Australian Citizenship Act 2007
Migration Regulations 1994
Cases
Dranichnikov v Centrelink (2003) 75 ALD 134
Secondary Materials
Australian Citizenship Instructions
Procedures Advice Manual 3
REASONS FOR DECISION
Member K. Parker
13 November 2017
INTRODUCTION

The applicant, Dr Md Sohel Rana (Dr Rana), arrived in Australia in 2011 under a temporary student visa. He currently lives in Australia under a permanent skilled visa. In 2014, Dr Rana applied for conferral of Australian citizenship under Subdivision B of Division 2 of Part 2 of the Australian Citizenship Act 2007 (Cth) (Act).
Dr Rana’s application for approval was refused by a delegate of the Minister for Immigration and Border Protection (Minister) on the basis that Dr Rana did not meet the general eligibility requirement under s 21(2)(c) of the Act as he did not satisfy the general residency requirement under s 22 because he was unlawfully present in Australia for a period of five days between 31 May 2014 and 5 June 2014 during which he did not hold a visa (Impugned Period).
Dr Rana seeks review of the Minister’s decision by this Tribunal.
For the reasons set out below, the Tribunal concludes that Dr Rana was present unlawfully in Australia during the Impugned Period because of an administrative error by the Department of Immigration and Border Protection (Department). This enlivens the Tribunal’s discretion under s 22(4A) of the Act and the Tribunal exercises its discretion to treat Dr Rana as having not been present in Australia unlawfully during the Impugned Period. On this basis, the Tribunal is satisfied that Dr Rana met the general residency requirement under s 22 of the Act and consequently, that he met the general eligibility criteria under subsection 21(2)(c) of the Act when he lodged his application for conferral of citizenship.
BACKGROUND
Dr Rana was born in and is a citizen of Bangladesh. He first arrived in Australia on 27 February 2011 on a Student (Temporary)(Class TU)(Subclass 574) visa which was granted while Dr Rana was offshore. At this time, Dr Rana was enrolled with the School of Engineering and Information Technology at the University of New South Wales at the Australian Defence Force Academy in Canberra (UNSW@ADFA) to complete a Doctorate of Philosophy (PhD) in Electrical Engineering. Dr Rana was offered and received a scholarship to cover his course fees and to provide him with a living allowance.
The expiry date of Dr Rana’s original student visa was 31 May 2014.[1]
[1] This student visa was issued on 28 January 2010 but Dr Rana did not travel to Australia immediately under this visa as he remained in Bangladesh initially to care for his elderly father who was unwell.
Dr Rana gave evidence that leading up to the time of expiry of his original student visa, he was under considerable stress due to pressure arising from a deadline requiring him to complete a lot of work for his PhD thesis in a short amount of time. This was in addition to Dr Rana being sick and his elderly father in Bangladesh was unwell. This meant Dr Rana was working from home frequently during that time. Dr Rana explained that the deadline for the completion of his PhD course was 27 August 2014, at which time his scholarship was due to expire.
Dr Rana’s PhD supervisor, Associate Professor Hemanshu Pota, gave evidence and confirmed that Dr Rana was under considerable pressure in April and May 2014 because:
(a)The period within which he was required to complete his PhD had been condensed from 3.5 to 2.5 years on account of Dr Rana needing to be in Bangladesh for one year during that period to care for his sick father; and
(b)Dr Rana was under significant pressure to write and publish as many journal articles at that time as possible with respect to the research being undertaken as part of his PhD thesis.
Dr Rana, on his own initiative, submitted an application with the Department for “an extension of his student visa” on Thursday, 22 May 2014, being seven business days before the expiry of his original student visa. Dr Rana said he was not informed or given any reminder by the Department about when his visa was due to expire. He said he could not remember what triggered his memory about the visa expiry date. The Minister confirmed that it was not the usual practice of the Department to provide such reminders to visa holders.
Dr Rana said he received an email from the Department on Friday, 23 May 2014 to acknowledge receipt of his visa application. Dr Rana said he was under the impression that a bridging visa would start after the original student visa, as he had applied for an extension to his student visa and had received an acknowledgement of recept of the visa application from the Department by email on 23 May 2014.[2]
[2] Refer T-Documents T1/5.
Dr Rana gave evidence that the next time he was contacted by the Department was at some point between Saturday, 31 May 2014 and Tuesday, 3 June 2014 (he could not recall the precise date), when he received a letter dated Friday, 23 May 2014 sent by ordinary post to his “pigeon hole in the engineering faculty” at the UNSW@ADFA (23 May Letter). Dr Rana confirmed that the university address was the contact address he had provided to the Department on his visa application form, along with his email address and mobile phone number. On the visa application form, Dr Rana was prompted to indicate whether he agreed to receiving correspondence by email to which he provided his consent.
Dr Rana said he was surprised to be informed by the 23 May Letter that the Department had decided that his visa application was invalid because he had not submitted an electronic Confirmation of Enrolment certificate (eCoE). An eCoE is an official document issued by educational institutions, such as universities, to approved students. The educational institutions obtain the eCoE’s from the Department of Education and Training’s Provider Registration and International Student Management System (PRISMS). Dr Rana said at the time, he thought the letter issued by the UNSW@ADFA on its official letterhead confirming his current enrolment in the PhD course would have been adequate.[3]
[3] Refer T-Documents T5/91.
Upon receiving the 23 May Letter, Dr Rana took immediate steps (on Tuesday, 3 June 2014), to obtain the requested eCoE from the UNSW@ADFA and submitted a new visa application on the same day attaching the eCoE. Dr Rana said the Department sent him an email on Friday, 6 June 2014 indicating that it would treat his visa application as having been made on 4 June 2014. Dr Rana said he was “a bit worried, because in that email, there was no mention of a bridging visa”.
Due to this concern, Dr Rana said he called the Department “after 6 June 2014” and was informed that he was on a bridging visa, that “very soon” they would inform him of the outcome of his application and that he need not worry. Dr Rana said he could not recall the name of the person he spoke to. Dr Rana said he was not told during that conversation that he had been unlawfully present in Australia at any point. The Department in its decision refusing to approve Dr Rana’s citizenship application states that a Bridging Visa C was granted to Dr Rana on 5 June 2014.[4]
[4] Refer T-Document T2/13.
On 28 July 2014, Dr Rana was granted a second Student (Temporary)(Class TU)(Subclass 574) visa.
On 10 September 2014, Dr Rana completed his PhD. He applied for a Skilled (Permanent)(subclass 190) visa and it was granted to him on 16 January 2015.[5]
[5] Refer T-Documents T2/11.
Dr Rana said he first discovered he was considered to have been present in Australia unlawfully during the Impugned Period, after he lodged his application for citizenship with the Department on 20 January 2016.[6]
[6] Refer T-Documents T2/11.
Dr Rana’s citizenship application was refused on 4 June 2016.[7]
[7] Refer T-Documents T2.
At the hearing, Dr Rana said it was important to him to become an Australian citizen because it was a pre-condition of employment at the UNSW@ADFA. Dr Rana advised he had undertaken research at the UNSW@ADFA for a period of five years and was very familiar with the research projects presently underway. He said he had been prevented from taking up employment at the ADFA@NSW on account of not being able to meet this pre-condition.
LEGISLATION
Subdivision B of the Act deals with conferral of Australian citizenship.
Section 21 of the Act provides that a person must make an application for the conferral of citizenship. Subsection 21(2) prescribes a number of general eligibility criteria, all of which must be met. However, even if those criteria are met, conferral of citizenship may still be refused if any one of the prohibitions under s 24 of the Act applies. The Department was satisfied that none of the prohibitions applied to Dr Rana.
In this application, the Minister’s delegate was satisfied that Dr Rana met the general eligibility criteria under subsection 21(2)(a) of the Act (the age requirement) and subsection 21(2)(b) (the permanent residency requirement), but not under subsection 21(2)(c) (the residency requirement). The Minister’s delegate did not assess whether Dr Rana satisfied the further mandatory requirements under subsections 21(2)(d) to (h) inclusive.
Relevantly, a person will satisfy the residency requirement if they satisfy the general residence requirement under s 22 of the Act at the time they made their application for conferral of citizenship. This will be met where each of the following apply:
(a)The person was present in Australia for the period of four 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 four 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.
Subsection 22(4A) of the Act confers discretion upon the Minister, for the purposes of subsection 22(1)(b), to 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.
ISSUE
The primary issue arising in this application is whether Dr Rana was present in Australia unlawfully during the Impugned Period because of an administrative error and if so, whether the Tribunal should exercise its discretion under subsection 22(4A) of the Act to treat Dr Rana having not been present in Australia unlawfully during the Impugned Period for the purpose of subsection 22(1)(b) of the Act.
CONSIDERATION
On 23 May 2014, when the Department notified Dr Rana that it had decided that his visa application was invalid, there were no legislative requirements upon the Department to:
(a)Notify Dr Rana within a specified period of time; or
(b)Use a specified mode of communication, for instance, to notify Dr Rana orally by telephone or in writing, via email or by ordinary post.
The Tribunal finds that the Department did not act inconsistently with any statutory obligations by choosing to notify Dr Rana in the manner that it did. However, the inquiry about whether there had been an administrative error for the purposes of subsection 22(4A) does not stop there.
The concept of administrative error as appearing in subsection 22(4A) of the Act is not defined.
As at 23 May 2014, Australian Citizenship Instructions (ACIs) issued by the Minister provided guidance to Departmental officers about the interpretation and administration of the Act and the regulations made under it. Section 5.16 of the ACIs at that time[8] provided the following guidance in relation to interpreting the concept of administrative error under subsection 22(4A) of the Act (emphasis added):
[8] The ACI’s were later replaced by the Citizenship Policy.
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...
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.
A delay in processing an application does not constitute an administrative error in itself. Where an adverse decision on an application is subject to merits or administrative review and the decision is subsequently overturned, this is still considered within the normal parameters of an application process and does not constitute an administrative error.
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.
Decision makers must be satisfied that an administrative error has in fact occurred. Most cases of administrative error will require examination of client records relating to the relevant visa. Advice can be sought from the Citizenship Helpdesk, National Office.
For example a delegated officer may consider applying the ministerial discretion provided under s22(4A) to assist a person to meet the general residence requirement where the period of unlawfulness was solely due to the ceasing of a BVA which was ‘out of effect’ when they departed Australia; or
Where a person makes a valid application for a bridging visa, including an application for a visa which is also an application for a bridging visa such as a student visa or a skilled migration visa, and the associated bridging visa was not granted prior to the person becoming unlawful, in certain circumstances this may be considered an administrative error. For example a visa application was lodged in Australia within the validity period of the formerly held visa but the lodgment was not recorded (and a bridging visa not granted) until the former visa ceased, leading to a period of unlawfulness.
…
Justice Hill in the Full Court of the Federal Court of Australia decision of Dranichnikov v Centrelink [2003] FCAFC 133 (Dranichnikov), involving the interpretation of s 97 of A New Tax System (Family Assistance) (Administration) Act 1999 (Cth), made the following observations (emphasis added):
[62] It is neither possible nor appropriate to attempt a meaning of the words “administrative error” which would accurately cover every case for much will turn upon the circumstances. Essentially, however, the concept is one where the error or mistake arises as a result of the procedure that has been adopted…An error made by Centrelink or the Australian Taxation Office acting on its behalf in its administration of the law will generally be an administrative error…
Justice Hely in Dranichnikov also observed (emphasis added):
[73] … Whether the debt was due to an administrative error depends upon the circumstances, including the information supplied in association with the claim, and whether any administrative procedures which were in place in relation to the processing of such claims were followed.
The Tribunal must consider whether the Department acted inconsistently with its own administrative procedures which were in place at the time when, upon receiving Dr Rana’s application for a second student visa, on 23 May 2014:
(a)The Department decided that Dr Rana’s application was invalid because it did not attach an eCoE (Invalidity Decision); and
(b)The Department decided that it would provide written notification about the Invalidity Decision to Dr Rana, by ordinary post (Notification Decision).
Invalidity Decision
Clause 1222(3)(c) of Schedule 1 to the Migration Regulations 1994 (Cth) (Regulations) provides as follows (emphasis added):
If the application is made on form 157A or 157E and the applicant seeks to satisfy the primary criteria, the application is accompanied by satisfactory evidence that:
(i) the applicant is enrolled in a registered full-time course of study:
(A) of a type that has been specified in a legislative instrument made by the Minister under regulation 1.40A; and
(B) the provider of which is not a suspended education provider; …
The Minister contended that the Department’s Procedural Advice Manual 3 (PAM3) provided guidance on what constituted satisfactory evidence of enrolment in a course of study and specifically, that clauses 19.2, 22.1 and 24.1 of PAM3 imposed a requirement that “the application be accompanied by a CoE or Letter of Offer”. It was contended that “accordingly, there was no error in finding the application to be invalid as it was not accompanied by a CoE or Letter of Offer”. [9]
[9] Refer paragraph [37] of Statement of Facts and Contentions of the Respondent dated 30 November 2016.
The Tribunal has considered a section of PAM3 (the version that existed as at 23 May 2014) entitled “GenGuideG – Student visas – Visa application and related procedures”. The fourth part of this section is entitled “Applying for a student visa”. This part contained a further subpart headed “Enrolment (and electronic Confirmation of Enrolment)” comprising clauses 19 to 24.

Clause 19 is entitled “The eCoE”. Clause 19.2 is entitled “Cases to which eCoE arrangements apply” and relevantly, it states as follows (emphasis added):
An eCoE is required for all intending students except for … [a list of exceptions none of which apply in Dr Rana’s case]
Clause 22 is entitled: “The eCoE and CoE certificate as confirmation of enrolment”. Clause 22.1 is headed “eCoEs as visa criterion” and states that (emphasis added):
The Regulations require an electronic CoE. If there is no eCoE in IRIS/ICSE with details (bio-data, course date and unique code) matching the CoE certificate presented by the applicant:
·Onshore, the visa cannot be granted (because, under policy, satisfactory confirmation of enrolment has not been produced) and
…
Clause 24 is entitled: “Evidence of enrolment”. Clause 24.1 is headed “From whom” and states (emphasis added):
Students must provide an eCoE certificate from the education provider or, if appropriate, an AASES form, unless an AusAID/Defence student …
The Tribunal notes that some aspects of the guidance provided in these clauses of PAM3 are ambiguous. Firstly, clause 19.2 is directed at “all intending students”. It is unclear what this phrase meant. Did it mean persons intending to be students and therefore, it was meant to capture only those students who were intending to commence a course of study in Australia? If so, Dr Rana did not fall into this category as he had been undertaking a PhD course of study in Australia for the previous three years. Or alternatively, did this phrase mean students who are intending to hold a visa and therefore, it was meant to encompass both students who were to commence and who were to continue a course of study? If it had this broader meaning, the procedural requirement arising from PAM3 would have applied to Dr Rana.
Secondly, in Clause 22.1, the first sentence asserts that: “The Regulations require an electronic eCoE”. This is incorrect. The Regulations did not specify what evidence of enrolment was required, only that it be “satisfactory”. Accordingly, it appears that the guidance which follows in the second sentence and first bullet point of clause 22.1, were based on a misconception that an eCoE was specifically prescribed by the Regulations, when it was not.
By contrast, clause 24.1 is expressed clearly in that it states that students must provide an eCoE certificate from the education provider. The Tribunal notes that the reference to “students” in this clause was unqualified, except for an exclusion that applied in relation to AusAID/Defence students, which was not applicable in this application.
The Tribunal acknowledges that the question of what type of documentary evidence constitutes satisfactory evidence of enrolment was a matter about which the Department was required to exercise its judgment. It was clear enough from clauses 19, 22 and 24, when taken together, that the Department’s judgment in this regard was that as a matter of process, the Department required an eCoE from applicants who were applying for student visas (with some limited exceptions which are not relevant here) for their applications to be valid. It was certainly open to the Department to exercise its judgment to apply clause 1222(3)(c) of Schedule 1 to the Regulations in this way.
On this basis, the Tribunal concludes that the Invalidity Decision was made in accordance with established procedure, and under the applicable statutory framework, it was open to the Department to adopt that procedure. For this reason, the Tribunal finds that the Invalidity Decision did not constitute an administrative error for the purposes of subsection 22(4A).
Notification Decision
As at 23 May 2014, a section of PAM3 entitled “Code of procedure instructions - Notification requirements - Notifications at Lodgement Stage” dealt with the Department’s procedures in relation to notification of an invalid visa application, the relevant parts of which are reproduced below (emphasis added):
1. Notice of invalid visa applications
1.1Timing of notification
Under policy, officers should notify a visa applicant of the decision that their visa application is invalid in a timely manner.
…
1.2Form of notification
Whether an applicant should be notified about their invalid visa application orally or in writing will depend on what is appropriate in all the circumstances.
Oral notification
Circumstances in which it would be appropriate to notify the applicant orally (for example, over the counter or by phone) include where:
…
Delaying contacting the visa applicant might impact on the visa applicant’s visa options. For example:
…
In the onshore context, the visa applicant’s substantive visa is due to cease within a week, which may affect the applicant’s eligibility for a further substantive visa…
When attempting to notify a visa applicant by phone, officers should attempt to contact the applicant at least twice over a period of two days. If a client record/file exists, officers should note in the relevant departmental system (for example, ICSE/IRIS) the dates and times on which they attempt to contact the visa applicant. If the officer is unable to contact the visa applicant, the visa applicant should be notified of the invalid visa application in writing.
Written notification
Unless oral notification is appropriate, notification of the decision that the visa application is invalid must, under policy, be in writing. Circumstances in which it would generally be appropriate to notify a visa applicant in writing include where:
·a visa applicant has been granted a Bridging visa in association with an invalid substantive visa application (that is, the invalidity was detected after the Bridging visa was granted) – this is because the Bridging visa will cease 28 days from notification of their application being invalid or
·the applicant is represented by a migration agent who is in Australia or
·contact by phone is inappropriate because the visa applicant does not have good English skills and the officer does not have the necessary foreign language skills or
·the applicant resides in a different country to the overseas post (in the offshore context) or
·contact by phone is impractical because the applicant does not have a phone.
If the applicant has consented to receive communications by email, and, at the time the notification is being sent, it is reasonable to believe that a notification sent by email would be readily accessible by the client, the written notification may be sent by email.
…
1.3Content of notification
When notifying applicants of application invalidity, officers should provide the following information:
…
If applicable, any possible consequences regarding the ceasing of their current visa, (that is, if their substantive visa is due to cease shortly, that failure to lodge a valid application before the cessation of their substantive visa may affect their eligibility for a new visa) and
…
1.4Method of giving a written notice of invalid visa application
The Act and the Regulations do not prescribe the method for giving a notice of invalid visa application to an applicant. In order for the department to benefit from the deemed receipt provisions, the department’s policy is that officers should give a written notice of invalid visa application in one of the ways set out in s 494B (Methods by which Minister gives documents to a person) – see section 35 Prescribed methods for giving notification.
…
1.9Updating departmental systems
If a client file or record exists in the relevant departmental system (for example, ICSE), a comprehensive case note of the notification must be made in that system.
…
Dr Rana submitted his second student visa application on Thursday 22 May 2014 and the Department formed a view on Friday 23 May 2014 (one day later) that it considered the application to be invalid as it was not accompanied by an eCoE.
The Department did not delay in making a decision about the invalidity of Dr Rana’s application, however, the Departmental officer made a decision to communicate that decision to Dr Rana in writing and to send the written notification to Dr Rana by ordinary post. The alternative options open to the officer were to notify Dr Rana orally, by telephone or to notify him in writing, but by email (instead of by ordinary post). The Tribunal considers that the Notification Decision by the Department on 23 May 2014 was a mistake or an error after taking into account the following matters outlined in paragraphs [47] to [59] below.
At the time of making the Notification Decision, it was within the Department’s knowledge that Dr Rana was present in Australia; his current student visa was due to expire seven business days later on 31 May 2014 and consequently, that Dr Rana had an urgent need to receive the invalidity notification before the expiry of his current student visa.
The Department’s own policy was that it would deem receipt of notices sent by ordinary post to occur on the seventh working day after the date of the letter, as reflected in the statement to this effect included on the back of the 23 May Letter sent by the Department to Dr Rana:
Receiving this Letter
As this letter was mailed to an Australian address from within Australia, you are taken to have received it seven (7) working days after the date of this letter. A working day does not include weekends or public holidays in the Australian state or territory to where this letter was posted.
The date of the Department’s letter was Friday 23 May 2014. The seventh working day following this date was Tuesday 3 June 2014. This date fell after the due date of expiry of Dr Rana’s original student visa being 31 May 2014. It should have been apparent to the Departmental officer that:
(a)To send the invalidity notice to Dr Rana by ordinary post, which by the Department’s own measure was only expected to reach him after the expiry date of his original student visa, was too late; and
(b)Dr Rana required notice to be given to him before 31 May 2014 to enable him to provide the requested eCoE before this time in order to complete his application and secure an appropriate bridging visa pending the processing of his application for the new student visa; or alternatively, if either of those things were not possible within that time frame, to at least give Dr Rana the opportunity to depart the country temporarily to ensure he was not present in Australia unlawfully for any period.
Instead, on 23 May 2014, Dr Rana received an email from the Department acknowledging his application and advising him that the Department “would contact [him] if it assessed his application as invalid”.[10]
[10] Refer T-Documents T7.
As set out in the Code of procedure instructions in PAM3 (set out in paragraph [44]), at the time of making the Notification Decision, the Department’s policy was to notify a visa applicant of a decision that a visa application was invalid in a timely manner. To choose a channel of communication that was deemed by the Department itself to notify a visa applicant after the date of expiry of its current visa is considered by the Tribunal to be untimely, and consequently, inconsistent with the procedural requirement of notifying a visa applicant in this situation in a timely manner.
At the time of making the Notification Decision, the Departmental policy, as referred to in clause 1.2 of the Form of notification section in PAM3 (set out in paragraph [44] above), guided its officers to telephone a visa applicant to provide oral notification of a decision that a visa application was invalid, when it was appropriate in all the circumstances to do so. The policy goes on to provide some examples where this might apply. Importantly, the specific examples given in this clause focus on guiding officers to provide oral notification where the situation was urgent or time critical.
The Tribunal considers that the circumstances in this case called for the Departmental officer to identify that Dr Rana’s need to be advised about the Invalidity Decision was urgent. It was appropriate that he be provided with oral notification under the policy set out in paragraph [44] above or at the very least, if written notification was to be provided, that it be sent by email and not by ordinary post, so as to reach Dr Rana expeditiously before his current visa had expired. This is particularly so, given that the officer was also aware that all that Dr Rana’s needed to do to rectify the deficiency in the visa application was to obtain an eCoE and provide it to the Department. It should have been apparent to the Departmental officer that this was not a difficult step for Dr Rana to complete, as he had already obtained and provided to the officer an official letter from UNSW@ADFA confirming his current enrolment in the PhD course at UNSW@ADFA.
There were no Departmental records tendered by the Minister or witness statements provided by the Departmental officer who made this decision to shed light on why she considered it appropriate in Dr Rana’s case to provide written, instead of oral, notification and to send it by ordinary post, instead of by email. The Tribunal notes that the officer was capable of identification by the Minister’s representative, as her Christian name and position number were referenced at the base of the 23 May Letter. In the absence of any such evidence, it appears to the Tribunal that this decision was made arbitrarily without regard to Dr Rana’s particular circumstances or the potential consequences to Dr Rana given that his original student visa was about to expire.
The Minister contended that Dr Rana should have appreciated that he was required to provide an eCoE with his application for a second student visa, because it could be inferred that he obtained and submitted an eCoE as part of his original student visa application. Dr Rana’s evidence at the hearing was that he did not appreciate this and that he could not recall whether he submitted an eCoE as part of his original student visa application back in 2010.
The Department’s file for Dr Rana’s original visa application was lodged with the Tribunal shortly following the hearing and the parties were provided with an opportunity to make further submissions in relation to it. The file confirmed that an eCoE was submitted as part of Dr Rana’s visa application for the original student visa. However, it also indicated that Dr Rana’s original application was made by an “Education Agency”, IDP Education Pty Ltd, on Dr Rana’s behalf.[11]
[11] Refer page 21 of his visa application.
The Tribunal considers that Dr Rana’s previous visa application forms do not support an inference that Dr Rana had knowledge at the time he made the visa application in May 2014 that an eCoE was required. As Dr Rana’s representative at that time, IDP Education Pty Ltd, may have attended to obtaining the eCoE on Dr Rana’s behalf in 2010. Even if it did not, the Tribunal accepts the evidence of Dr Rana that he did not appreciate, four years later in 2014, that it was a requirement of the Department to lodge an eCoE with his application form for his second visa.
In summary, the Tribunal considers that the Department’s decision to notify Dr Rana in writing, by ordinary post, was inconsistent with the Department’s own procedures about the appropriate form of notification in urgent circumstances such as those in Dr Rana’s case. Instead, an arbitrary decision was made to notify Dr Rana in the least expeditious way, by giving him written notification by ordinary post.
The Tribunal concludes that it was a mistake or error by the Department to have made the Notification Decision and not to have notified Dr Rana of the Invalidity Decision orally by telephone or at the very least, by providing him written notification by email so as to reach Dr Rana as expeditiously as possible, given the circumstances outlined above. The Tribunal considers that this mistake or error by the Department is appropriately characterised as an administrative error for the purpose of subsection 22(4A) of the Act, as it was inconsistent with the Department’s procedures in place at the time.
Was Dr Rana present in Australia unlawfully because of the administrative error?
Dr Rana did not receive notification of the Department’s Invalidity Decision until after his original student visa had expired. Had the Department made a different decision to provide oral notification of the Invalidity Decision to Dr Rana by telephoning him on 23 May 2014, or at the very least by providing him with written notification by email, the Tribunal is satisfied that Dr Rana was likely to have received the notification on 23 or 24 May 2014, and that Dr Rana would have responded immediately to obtain and provide the requested eCoE to the Department, as he did when he was ultimately notified. The Tribunal is satisfied that this was likely to have resulted in a bridging visa being issued to Dr Rana (pending the processing of the visa application), before the expiry of his original student visa. The Tribunal notes when Dr Rana ultimately lodged the visa application with an eCoE, the Department issued Dr Rana with a bridging visa within two days.
For these reasons, the Tribunal finds that Dr Rana was present unlawfully in Australia during the Impugned Period because of the administrative error comprising the Notification Decision.
The Minister indicated at the hearing that if the Tribunal determined that an administrative error occurred that caused the unlawful presence of Dr Rana in Australia during the Impugned Period, the Tribunal should exercise discretion under subsection 22(4A) to treat Dr Rana as not having been present in Australia during that period.
CONCLUSION
The Tribunal concludes that Dr Rana was present in Australia unlawfully during the Impugned Period because of an administrative error being the Notification Decision by the Department.
This enlivened the Tribunal’s discretion under subsection 22(4A) of the Act which it exercises to treat Dr Rana as having been present in Australia lawfully during the Impugned Period for the purpose of subsection 22(1)(b) of the Act.
The Tribunal notes that Dr Rana is a person of significant academic standing and it seems from his post-graduate research to date, he has a great deal to contribute to the Australian community.[12] It was not apparent to the Tribunal that Dr Rana had at any time acted in a way that was intended to circumvent Australian immigration laws and processes. To the contrary, Dr Rana submitted what he considered to be a valid visa application seven business days before his original student visa had expired with supporting documentation which he genuinely considered, and not unreasonably so, would be adequate. Immediately upon being notified of the minor deficiency in his application, Dr Rana acted to rectify it.
[12] Refer curriculum vitae of Dr Rana lodged with the Tribunal on 30 June 2017.
In these circumstances, the Tribunal agrees with the Minister’s contention that it would be appropriate to exercise the Tribunal’s discretion under subsection 22(4A) of the Act in favour of Dr Rana. Accordingly, the Tribunal is satisfied that Dr Rana met the general residency requirement under s 22 of the Act when he lodged his application for conferral of citizenship and consequently, that he met the general eligibility criteria under subsection 21(2)(c) of the Act.

I certify that the preceding 66 (sixty-six) paragraphs are a true copy of the reasons for the decision herein of Member K. Parker

[sgd]........................................
Associate
Dated 13 November 2017

Date of hearing:
23 June 2017

Advocate for the Applicant:

Solicitors for the Applicant:

Mr Hadi Mazloum

SR Migration & Education Services

Advocate for the Respondent: Ms Melissa Gangerni

Solicitors for the Respondent: Australian Government Solicitor

Date of hearing:	23 June 2017
Advocate for the Applicant: Solicitors for the Applicant:	Mr Hadi Mazloum SR Migration & Education Services
Advocate for the Respondent:	Ms Melissa Gangerni
Solicitors for the Respondent:	Australian Government Solicitor