ROGERS and MINISTER FOR IMMIGRATION AND CITIZENSHIP
[2011] AATA 592
•26 August 2011
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2011] AATA 592
ADMINISTRATIVE APPEALS TRIBUNAL )
) No 2011/1045
GENERAL ADMINISTRATIVE DIVISION ) Re TAMARA ROGERS Applicant
And
MINISTER FOR IMMIGRATION AND CITIZENSHIP
Respondent
DECISION
Tribunal Deputy President D G Jarvis Date26 August 2011
PlaceAdelaide
Decision The decision under review is affirmed.
D G Jarvis
... [Signed] ...
Deputy President
CATCHWORDS
AUSTRALIAN CITIZENSHIP - Application for citizenship by conferral - residence requirements - held that Bridging visa A does not come into effect, and therefore does not cease to be in effect, until expiration of pre-existing substantive visa - held that applicant lawfully present in Australia pursuant to bridging visa, notwithstanding departure from Australia during currency of pre-existing substantive visa - consideration of administrative error - applicant not present in Australia for four years immediately before application for citizenship - decision under review affirmed.
Australian Citizenship Act 2007 (Cth), ss 22(1) and 22(4A)
Migration Act 1958 (Cth), ss 37, 68 and 82
Migration Regulations 1994 (Cth), Schedule 2, clause 010.511
Minister for Immigration and Multicultural Affairs v A (1999) 91 FCR 435
Re Melhem and Minister for Immigration and Citizenship [2010] AATA 993
Re Pousti and Minister for Immigration and Citizenship [2011] AATA 456
Re Rais and Minister for Immigration and Citizenship (2011) 120 ALD 150
D.C. Pearce and R.S. Geddes, Statutory Interpretation in Australia (7th Edition, 2011) LexisNexis Butterworths
REASONS FOR DECISION
26 August 2011 Deputy President D G Jarvis 1.The applicant, Tamara Rogers, is an Iranian citizen. She arrived in Australia on 30 June 2007 on a Work and Holiday (Temporary) (Class US), subclass 462 visa, which enabled her to remain in Australia, and also to depart and re-enter Australia, for a period of 12 months from the date when she first entered Australia.
2.After her arrival, Ms Rogers lived and studied in Australia. She applied for Australian citizenship on 24 February 2011. She said that she made this application so that she would be able to obtain a position in the Royal Australian Navy as an avionics technician, for which she is qualified. Her application was refused on the grounds that she did not meet the residence requirement, and there were no grounds for waiving that requirement. It was also decided that Ms Rogers was present in Australia as an unlawful non-citizen in July 2008, after her substantive visa had expired, because she had previously departed from Australia during the currency of her Work and Holiday visa and that resulted in her Bridging visa A ceasing to be in effect.
Issues before the Tribunal
3.The issues before the tribunal are:
(a)whether Ms Rogers satisfies the residence requirement of s 22(1)(a) of the Australian Citizenship Act 2007 (Cth) (the Citizenship Act), namely presence in Australia for a period of four years immediately before the date of the application for citizenship; and
(b)whether Ms Rogers satisfies the requirements of s 22(1)(b) of the Citizenship Act, namely that she was not present in Australia as an unlawful non-citizen at any time during that four-year period.
Background
4.The Work and Holiday sub-class 462 visa granted to Ms Rogers expired on 30 June 2008. Before then, on 17 April 2008, she sent an email to the Department of Immigration and Citizenship requesting information regarding extending her visa. She received a response on 20 April 2008, requesting her to apply six to eight weeks before her then current visa was due to expire. The Department’s email attached a checklist and necessary forms, including a Form 1208. Ms Rogers subsequently completed this form, and lodged it on 8 May 2008.
5.On 9 and 11 May 2008, Ms Rogers sent emails to the Department seeking information concerning the requirement for a police clearance and the amount of the application fee for a Spouse visa. Each email concluded:
“My ticket for Iran is booked for 20th of May and I would appreciate a response.” (exhibit R2, ST1 and ST2, pages 2 and 4).
6.She had planned to travel to Iran, because it was necessary to make her application for a Spouse visa from a location outside Australia. She gave evidence that her purpose of sending the two emails to the Department, to which I have referred in the previous paragraph, was to ensure that before she left to go to Iran she had obtained all of the necessary documents and information from the Department.
7.Ms Rogers left for Iran as planned on 20 May 2008. She later visited the Australian Embassy in Iran, and lodged her application for a Spouse visa. She then returned to Australia on 21 June 2008.
8.In the meantime, and while she was still away, the Department had sent her an email dated 26 May 2008. In its email, the Department referred to her application for her second Work and Holiday visa which had been lodged on 8 May 2008, and to the need to lodge an Australian Federal Police Clearance Form. It also included the following paragraphs:
“So that applications can be assessed as quickly as possible, you should not make any unnecessary progress enquiries within this period. Written and telephone enquiries can delay the processing of applications, including yours. When this office has further instructions for you, you will be contacted in writing immediately.
...
When you lodged your application you were granted a Bridging Visa A. If your application has not been decided by the time your current substantive visa ceases to be in effect, the Bridging Visa A will come into effect. The purpose of the Bridging Visa A is to allow you to remain lawfully in Australia until a decision is made on your application; however, you need to be aware that you cannot travel overseas while you hold a Bridging Visa A. If you have an urgent need to travel overseas while your Work and Holiday visa application is being processed, you should apply for a Bridging Visa B ...
The Bridging Visa A will hold the same conditions of (sic) your last substantive visa including:
....”
The email then listed certain conditions, which are not relevant for present purposes. It concluded in effect that if she had any questions, she should “not hesitate” to contact the Department by telephone or email.
9.On 31 July 2008, Ms Rogers was granted the further Work and Holiday visa for which she had applied.
Applicant’s contention
10.Ms Rogers accepts that she does not satisfy the primary residence requirement, namely presence in Australia for four years prior to lodging the application for citizenship. However, she contends that she should not be treated as an unlawful citizen during the period from 1 to 30 July 2008, when she remained in Australia following the expiry of her first Work and Holiday visa. If her contention is correct, she would be eligible to apply for citizenship again on 1 July 2011, being four years after she first arrived in Australia, but if her contention is incorrect, and assuming that in the meantime she had met the residence requirements of s 22 of the Citizenship Act, she would not be eligible to apply for Australian citizenship again until 31 July 2012 (being four years after her second Work and Holiday visa was granted).
Legislative Provisions
11.Section 21 of the Citizenship Act provides in effect that a person may make an application to the Minister to become an Australian citizen. Under s 24, the Minister must approve or refuse to approve the application, but must not grant approval unless the person is eligible to become an Australian citizen under one of the relevant subsections of s 21. That section sets out the general criteria for eligibility for conferral of citizenship, and these include the general residence requirement provided for in s 22 of the Citizenship Act.
12.Section 22 provides relevantly as follows:
“22 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 a unlawful non-citizen at any time during that 4 year period ...”.
13.Under s 3 of the Citizenship Act, the expression “unlawful non-citizen” has the same meaning as in the Migration Act 1958 (Cth) (the Migration Act). Under s 14(1) of that Act, the expression “unlawful non-citizens” is defined to mean a non-citizen in the migration zone (that is for present purposes, in Australia) who is not a “lawful non-citizen”. Section 13(1) of the Migration Act defines “lawful non-citizens” to mean a non-citizen in the migration zone who holds a visa that is “in effect”.
14.Under s 22(4A) of the Citizenship Act, the Minister is given a discretion 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.”
15.It is also relevant to refer to the Migration Act and the regulations made under that Act in order to determine the status and relevance of the Bridging visa A, which (unknown to Ms Rogers at the time) was granted to her on 8 May 2008, when she lodged her application for her second Work and Holiday (Class US) subclass 462 visa.
16.Under s 29 of the Migration Act, the Minister has a discretion to grant a non-citizen permission, to be known as a visa, to do either or both of the following, namely to travel to and enter Australia, and to remain in Australia. Under s 31, there are to be prescribed classes of visas, and regulations may prescribe criteria for a visa or specified class of visa, and may prescribe whether visas of a class are visas to travel to and enter Australia, or to remain in Australia, or both.
17.Section 37 provides for the grant of temporary visas, to be known as bridging visas. Under s 73, if the Minister is satisfied that an eligible non-citizen satisfies the criteria for a bridging visa as prescribed under s 31(3), the Minister may grant a bridging visa permitting the non-citizen to remain in, or to travel to, enter and remain in Australia:
(a) during a prescribed period; or
(b) until a specified event happens.
18.Section 68 makes provision for when a visa is in effect. It provides relevantly as follows:
“68 When visa is in effect
(1) Subject to subsection (2), a visa has effect as soon as it is granted.
(2)A visa may provide that it comes into effect at the beginning of a day, being a day after its grant:
(a) specified in the visa; or
(b) when an event, specified in the visa, happens.
(3) A visa can only be in effect during the visa period for the visa.”
19.The expression “visa period” is defined in s 5 of the Migration Act as follows:
“‘Visa period’ in relation to a visa, means the period:
(a) beginning when the visa is granted; and
(b) ending:
(i)in the case of a visa other than a bridging visa—when the visa ceases to be in effect; or
(ii)in the case of a bridging visa—when the visa ceases to be in effect otherwise than under subsection 82(3).”
20.Section 82 of the Migration Act provides for when visas cease to be in effect. Section 82(8) is relevant to visas that entitle non-citizens to remain in, but not re-enter Australia, and this category of visas would include Bridging visa As. Section 82(8) provides:
“(8)A visa to remain in, but not re-enter, Australia that is granted to a non-citizen in Australia ceases to be in effect if the holder leaves Australia.”
Section 82(3) provides:
“(3)A bridging visa held by a non-citizen ceases to be in effect if another visa (other than a special purpose visa or a maritime crew visa) for the non-citizen comes into effect.”
21.The requirements for applications for bridging visas, and the criteria for eligibility, are provided for in the Migration Regulations 1994 (Cth) (the Migration Regulations). Clause 010.211 of Schedule 2 includes relevantly requirements that the applicant has made a valid application for a substantive visa of a kind that can be granted if the applicant is in Australia, that that application has not been finally determined, and that the applicant held a substantive visa at the time the application was made.
22.Clause 010.5 of Schedule 2 to the Migration Regulations makes provision for when a visa is in effect. In the case of a bridging visa, clause 010.511 of the Migration Regulations provides that the coming into effect of a bridging visa is:
“(i) on grant; or
(ii) when the substantive visa (if any) held by the holder ceases.”
Clause 010.511(b) goes on to provide for the period for which bridging visas permit the holder to remain in Australia. It provides in effect that this continues until certain decisions or actions are taken in relation to the substantive visa held by the applicant or in relation to the application for that visa. Under clause 010.511(b)(i) a bridging visa permits the holder to remain in Australia until the grant of the substantive visa for which the person has applied.
Consideration
23.Ms Rogers concedes that she does not meet the residence requirement of s 22(1)(a) of the Citizenship Act in that she was not present in Australia for a period of four years before she lodged her application for citizenship. Certain discretions are conferred upon the Minister whereby the Minister can in effect waive the requirement to satisfy the general residence requirement, but none of the relevant provisions apply in the circumstances of this case.
24.Having regard to Ms Roger’s failure to satisfy the requirement of s 22(1)(a) it is not strictly necessary for me to determine the question of whether Ms Rogers was present in Australia as an unlawful non-citizen in July 2008. However, this is the issue that was argued before me, and it constituted a further basis for the refusal of Ms Roger’s application for citizenship, and directly affects the date when Ms Rogers may be eligible for citizenship by conferral. I accordingly now consider this issue.
25.Under s 68(2) of the Migration Act, a visa may provide relevantly that it comes into effect on a day specified in the visa, or when an event, specified in the visa, happens. Similarly, under s 73, a bridging visa permits a non-citizen to remain in, or to travel to, enter and remain in Australia, during a prescribed period, or until a specified event happens. I was told by counsel for the respondent, Ms Shepherd, that it is not the Department’s practice to issue separate written Bridging visa As to non-citizens, and that their terms are those prescribed by the Migration Regulations.
26.Provisions with respect to the grant of particular classes of visas, including bridging visas, are contained in Schedule 2 of the Migration Regulations (see regulation 2.02(2)). I referred above to clause 010.511(a) of Schedule 2, which provides for when a bridging visa comes into effect, namely (i) on grant; or (ii) when the substantive visa (if any) held by the holder ceases. The clause accordingly provides for two alternative dates, without specifying which of those two alternative dates is to be the operative date. Where the non-citizen holds a substantive visa, the second of the alternative dates of when the bridging visa comes into effect, being the date referred to in paragraph (ii), will be subsequent to the date of grant of the bridging visa. Paragraph (ii) only operates in the expressed circumstance referred to, namely where the bridging visa has issued to a person who holds a substantive visa (as opposed to the circumstance that the non-citizen does not hold a substantive visa, as can occur under regulations 2.21A and 2.21B). I consider that in that expressed circumstance, the date referred to in paragraph (ii) (namely the date when the substantive visa ceases) is intended to be the applicable date when the bridging visa comes into effect, and not the date referred to in paragraph (i) (namely the date of grant of the visa). This position is of course consistent with the purpose of Bridging visas As, namely to permit non-citizens to remain in Australia pending the making of a decision on applications for substantive visas, notwithstanding the expiry of substantive visas previously held by non-citizens.
27.It was contended on behalf of the Minister that when Ms Rogers left Australia on 20 May 2008, her Bridging visa A ceased to be in effect by virtue of s 82(8) of the Migration Act. That subsection provides for when a visa “ceases to be in effect”. These words presuppose that the visa was already in effect at the time when it ceased to be in effect. However, on my interpretation of clause 010.511(a), at the date when Ms Rogers left Australia her Bridging visa A had not come into effect, and did not do so until her Work and Holiday visa expired on 30 June 2008. I accordingly do not think that s 82(8) would have any application to her Bridging visa A.
28.There is a further reason why in my view s 82(8) does not apply. That is because s 82(8) is a general section, which applies to all visas that permit a non-citizen to remain in, but not re-enter Australia. However, s 82(3) is expressed to apply specifically to the position of bridging visas. In addition, clause 010.511 is part of the Migration Regulations that provide expressly for when bridging visas are in effect, including the particular circumstances when the permission to remain in Australia, which is conferred by that visa, ceases. The general provisions of s 82(8) should in my view yield to the express provisions of s 82(3) and clause 010.511(b). Ordinarily, of course, regulations should not be used to interpret the Acts under which they are made, but having regard to the central role of the Migration Regulations in providing for classes of visas conferring permission for non-citizens to remain in Australia and the criteria for their grant, as envisaged by the provisions of the Migration Act, I think it is appropriate to treat the Act and Regulations as constituting a single legislative scheme, and that the Migration Regulations can be resorted to in order to understand and give effect to the legislative scheme, and so assist in resolving any ambiguity in the provisions of the Migration Act: see D.C. Pearce and R.S. Geddes, Statutory Interpretation in Australia, (7th Edition, 2011) LexisNexis Butterworths, at [3.41], and Minister for Immigration and Multicultural Affairs v A (1999) 91 FCR 435 at [47].
29.In summary, I consider that Ms Rogers’ Bridging visa A did not cease to be in effect on her departure from Australia on 20 May 2008, since it did not come into effect until the subsequent expiration of her first Work and Holiday visa. I further consider that her Bridging visa A remained in force until the grant of her second Work and Holiday visa, and permitted her to remain in Australia as a lawful non-citizen during that period. This interpretation of the relevant provisions of the Migration Act and Regulations preserves the entitlement which Ms Rogers had during the currency of her first Work and Holiday visa to depart from and re-enter Australia, without thereby causing her Bridging visa A to cease and undermining the practical utility of the prior grant to her of a bridging visa in order to permit her to remain in Australia pending the determination of her application for a new substantive visa.
30.I think that my above conclusion is consistent with the scheme of the Migration Act and Regulations, including the purpose of bridging visas, that is, to enable non-citizens who do not hold substantive visas to remain lawfully in Australia pending the determination of their entitlement to a substantive visa. In the present matter, Ms Rogers was away from Australia from 20 May 2008 and re-entered Australia on 21 June 2008, but this was permissible under the substantive visa she then held, namely her first Work and Holiday visa, and it was not suggested that her absence during the above period resulted in her being an unlawful non-citizen. Ms Rogers did not depart from Australia after her Bridging visa A came into effect (being on 1 July 2008 on my above interpretation) or before 31 July 2008, when her second Work and Holiday visa was granted.
31.In reaching my above conclusion, I have not overlooked the provisions of s 68(3) of the Migration Act, namely that a visa “can only be in effect during the visa period for the visa” (emphasis added), and the visa period, as I have said, is defined to mean the period beginning when the visa is granted and ending, in the case of a bridging visa, when the visa ceases to be in effect otherwise than under s 82(3). Section 68(3) does not in terms provide for when a visa comes into effect and ceases to be in effect, but merely provides for when a visa can be in effect. I have also taken into account s 77, which provides that for the purposes of the Migration Act, a non-citizen holds a visa at all times during the visa period for the visa. However, once again this section does not provide for when a visa is in effect, but merely provides for the duration of the period in which it is held. I think that a Bridging visa A may still be held by a non-citizen, with the rights conferred by it suspended, until the happening of some future event(s) which bring those rights into effect, or cause them to cease (they being concepts recognised by ss 68 and 82 of the Migration Act, and in the case of bridging visas, clause 010.511(a) and (b)).
32.A very recent decision of this tribunal, namely Re Pousti and Minister for Immigration and Citizenship [2011] AATA 456, was not referred to at the hearing of the present matter. In that case the tribunal decided that s 82(8) had the effect that the applicant’s Bridging visa A ceased to be in effect when he left Australia, so that the permission conferred by the Bridging visa A to remain in Australia was thereby withdrawn. I share the concern that the tribunal expressed in that case about the ambiguity in the Migration Act and the difficult problems of statutory construction that arise from the various sections. However, with respect, the tribunal appears in that case to have focussed on s 82(8) of the Migration Act, without sufficiently taking into account the provisions dealing with when bridging visas come into effect, being an equally important aspect of the operation and function of bridging visas. I think that the preferable interpretation of the Migration Act and Regulations is as set out above, for the reasons I have explained. A non-citizen holding a Bridging visa A would not need the permission to remain in Australia conferred by that visa if (as would commonly be the case) he or she already held another current substantive visa which permitted the non-citizen to remain in Australia until that substantive visa expired, and it seems to me to be contrary to the legislative scheme to conclude that a Bridging visa A would cease to have effect by virtue of s 82(8) before it has come into effect in the first place. Further, it would be administratively inefficient, and I think contrary to Parliament’s intention, for a non-citizen to have to apply for a new Bridging visa A following his or her return to Australia in circumstances where he or she had departed from and then re-entered Australia, as permitted by a then current substantive visa.
33.Counsel for the respondent referred me to two other cases in this tribunal which were said to be similar on their facts to the present matter, and where the tribunal found that the applicants had been present in Australia unlawfully because they had departed from Australia after they had been issued with a Bridging visa A. The decisions in question are Re Melhem and Minister for Immigration and Citizenship [2010] AATA 993 and Re Rais and Minister for Immigration and Citizenship (2011) 120 ALD 150. It was inherent in these decisions that the applicants became unlawful citizens because their Bridging visa As ceased to be in effect on their departure from Australia. However, in each case the tribunal examined the question of whether there was an administrative error by the Department so that the period in Australia as an unlawful citizen could be treated as lawful pursuant to s 22(4A) of the Citizenship Act. Neither decision contained a detailed analysis of the provisions of the Migration Act and Regulations dealing with dates when bridging visas come into effect, or the relevance of this issue to s 82(8) of the Migration Act. Those decisions accordingly do not assist the resolution of that issue.
Administrative error
34.A discretion is conferred by s 22(4A) of the Citizenship Act to in effect waive the unlawful presence in Australia of a non-citizen if this resulted from an administrative error. Section 22(4A) provides as follows:
“(4A)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.”
35.Ms Rogers gave evidence that she endeavoured at all times to comply with the requirements of the Department as communicated to her. She complained that the Department had not advised her that, on the interpretation of the Migration Act and Regulations that was applied in the decision under review, and that is contended for in the within proceedings (but which in my view is incorrect, as I have said above):
(a)the Bridging visa A issued to her following her second application for a Work and Holiday visa would cease if she left Australia; and
(b)in that event, she would become an unlawful non-citizen following the expiration of her first Work and Holiday visa, if her application for her new visa had not by then been granted.
36.She further complained that the statement on the Form 1208 that she completed when she applied for her second Work and Holiday visa, which reads:
“Your visa will allow ‘multiple entry’ to Australia. You can enter, depart, and re-enter Australia within 12 months from the date of the first entry into Australia.” (exhibit R2, page 7)
was not qualified by a warning (that the Department, on its interpretation, should have given) to the effect that if she departed from Australia after lodging the form she was at risk of becoming an unlawful non-citizen because that would lead to her Bridging visa A ceasing. She said that she did not understand that this result might follow when she departed from Australia on 20 May 2008. As to this last complaint, I note that the Form 1208 now does include a (somewhat obscure) warning that the applicant “should not make any irreversible travel arrangements until (he or she) receive(s) written advice of the Department’s decision on (the) application” (see exhibit A2, being the 2011 version of Form 1208).
37.Ms Rogers also pointed out that by the time she received the Department’s email of 26 May 2008, she was already overseas, and that she had previously told the Department that she was due to go overseas on 20 May 2008; the warning in the Department’s email that she should be aware that she “cannot travel overseas while (she held) a Bridging Visa A” accordingly came too late to assist her. In any event, this warning appears in the Department’s email of 26 May 2008 immediately following its advice (being advice which was in my view correct) that the Bridging visa A, which she had been granted when she lodged her application for her second Work and Holiday visa, would come into effect if her application had not been decided by the time her current substantive visa ceased to be in effect. It was therefore reasonable for Ms Rogers to assume that the warning in the Department’s email that she was not to go overseas while she held a Bridging visa A did not apply to her departure from Australia in May 2008, which was before her Bridging visa A came into effect.
38.In addition, the Department’s further advice in its same email of 26 May 2008, namely that if she needed to travel overseas while her new application was being processed she should apply for a Bridging visa B, equally came too late to assist her. Ms Rogers acknowledged that she returned to Australia nine days before her first Work and Holiday visa expired, but she had no reason to think that she had not been entitled to go overseas prior to the expiration of that visa. She also said that she had been discouraged from making further progress enquiries in view of the warning, early in the Department’s email, that such further enquiries might delay the processing of her application.
39.In the present case it is apparent that the communications from the Department, in conjunction with the information on the Form 1208, did not clearly convey the position for which the respondent contends. There is force in Ms Roger’s complaints and her contention that this is a case of administrative error. It is incumbent on the Department to provide clear guidance to applicants, who in many cases will have language difficulties, and will generally be unaware of the complex requirements of the Migration Act and Regulations. If a Department’s communication is incomplete, internally inconsistent, inexact or inaccurate, this of itself might well constitute an administrative error within the meaning of s 22(4A). However, in view of my above conclusions, it is not necessary for me to determine this aspect of Ms Roger’s contentions.
40.For the reasons referred to above, I consider that Ms Roger’s presence in Australia in July 2008, after the expiry of her first Work and Holiday visa and before the grant of her second such visa, was not unlawful. As a result, she was eligible to apply for Australian citizenship by conferral on and after 1 July 2011, being 4 years after she arrived in Australia. However, she lodged the application that gave rise to these proceedings prior to 1 July 2011, and so did not satisfy the general residence requirements of s 22(1)(a) of the Citizenship Act.
Decision
41.The decision under review is affirmed.
I certify that the 41 preceding paragraphs are a
true copy of the reasons for the decision herein of
Deputy President D G Jarvis... [Signed] ...
N. Misiajlo /AssociateDate/s of Hearing 28 July 2011
Date of Decision 26 August 2011
Applicant In person
Advocate for the Respondent Ms C Shepherd
Solicitor for the Respondent Australian Government Solicitor
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