Sedhom and Minister for Home Affairs (Citizenship)
[2019] AATA 784
•2 May 2019
Sedhom and Minister for Home Affairs (Citizenship) [2019] AATA 784 (2 May 2019)
Division:GENERAL DIVISION
File Number(s): 2018/5542
Re:Sedhom
APPLICANT
AndMinister for Home Affairs
RESPONDENT
DECISION
Tribunal:Senior Member K Raif
Date:2 May 2019
Place:Sydney
The decision under review is affirmed.
............................... [sgd]......................................
Senior Member K Raif
CATCHWORDS
CITIZENSHIP – refusal of approval for Australian citizenship by conferral – whether the application for citizenship made by the applicant should be approved – general and special residence requirements – defence service requirement – decision under review affirmed
LEGISLATION
Australian Citizenship Act 2007 (Cth) s 21, 22, 22A, 22B, 22C, 23, 116
Ombudsman Act 1972 (Cth)
CASES
Chaudhary and Minister for Immigration and Citizenship [2010] AATA 1006
Donnelly v Minister for Immigration and Border Protection [2016] AATA 752
Liu and Department of Immigration and Ethnic Affairs (1996) 41 ALD 589
Minister for Immigration and Border Protection v Fara & Anor [2015] FCA 646
Re Drake v Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634
SECONDARY MATERIALS
Department of Immigration and Border Protection (Cth), Citizenship Policy, (1 June 2016)
Legislative Instrument IMMI 13/056
REASONS FOR DECISION
Senior Member K Raif
2 May 2019
BACKGROUND
This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 14 September 2018 to refuse to confer Australian citizenship to the applicant under the Australian Citizenship Act 2007 (Cth) (‘the Act’).
The applicant is a national of Egypt, born in December 1983. He first travelled to Australia holding a Student visa in December 2010 and was granted a permanent visa in April 2016.
The applicant applied for the Australian citizenship by conferral on 13 October 2017. On 14 September 2018 the delegate of the Minister for Home Affairs refused that application because they formed the view that the applicant did not meet the residence requirements in s 22 of the Act. The applicant seeks review of the delegate’s decision.
ISSUES FOR DETERMINATION
The issue before the Tribunal is whether the applicant satisfied the general residence requirement, the special residence requirement or the defence service requirement at the time the application was made.
For the following reasons, the Tribunal has concluded that the applicant did not meet the general residence requirements and that the decision under review should be affirmed.
LEGISLATIVE FRAMEWORK
Section 21 of the Act deals with the general eligibility to become an Australian citizen. Relevantly, s 21(2)(c) relates to the residency requirement and provides that an applicant must satisfy:
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
Section 22 of the Act sets out the general residence requirements. Relevantly, s 22(1) states that
1Subject 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.
Section 22(4A) provides for Ministerial discretion for the purpose of paragraph (1)(b) and states that:
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.
DOES THE APPLICANT SATISFY THE GENERAL RESIDENCE REQUIREMENTS IN S 22?
The applicant’s immigration history is set out in the primary decision and the various submissions made to the Tribunal by the applicant and the respondent. It is not in dispute.
The applicant entered Australia in December 2010 as a holder of a Student visa and has held other visas since that date. The Tribunal is satisfied that the applicant was present in Australia for the period of 4 years immediately before the day he made the application for the citizenship. The applicant meets s 22(1)(a). The applicant has been a holder of a permanent visa since April 2016 and for the period of 12 months immediately before the day he made the application for the citizenship. He meets s 22(1)(c). However, the applicant had lived in Australia as an unlawful non-citizen. Information in the primary decision indicates that the applicant’s Student visa ceased on 31 May 2015 and on 3 August 2015 he was granted a Bridging visa. That is, the applicant has been an unlawful non-citizen between 1 June 2015 and 2 August 2015.
In his written submission dated 9 October 2017, which accompanied the application, the applicant states that he was an unlawful non-citizen due to an administrative error. The applicant states that he was ready to make the application on 27 April 2017 but due the legislative amendments, he was not able to lodge the application. The applicant states that the Department erred in cancelling his Student visa and the Tribunal set aside the cancellation. In his Statement of Facts, Issues and Contentions (SFIC) the applicant states that his Student visa was cancelled on 22 May 2015 and he was detained as a result. He applied for a Bridging E visa as soon as it was practically possible but his application was rejected. The applicant states that he was unable to apply for another visa because he was required to surrender his passport as a condition of his bail. The applicant states that his Student visa expired while he was in detention but he did everything he could do to avoid being unlawful. The applicant notes that the cancellation of the Student visa was set aside by the Tribunal and the charges that formed the basis of the cancellation were subsequently dismissed.
The applicant subsequently provided to the Tribunal an extract from the Ombudsman Act 1972 (Cth) setting out certain definitions, a Law Council of Australia submission to the Joint Standing Committee on Migration and other academic and legal papers, as well as Tribunal decisions in the matters of Chaudhary and Minister for Immigration and Citizenship [2010] AATA 1006 and Donnelly v Minister for Immigration and Border Protection [2016] AATA 752. The applicant’s submission to the Tribunal of 23 April 2019 was not accompanied by any explanation of the relevance of these documents to review. The Tribunal is not satisfied any of these documents – which are general in nature and do not relate specifically to the applicant’s circumstances – establish that the applicant was an unlawful non-citizen due to an administrative error. Insofar as these provide guidance to what constitutes an ‘administrative error’, the Tribunal acknowledges these materials.
The respondent notes in the SFIC that the term ‘administrative error’ is not defined in the legislation but refers to the authorities such as Chaudhary and Minister for Immigration and Citizenship [2010] AATA 1006 and Minister for Immigration and Border Protection v Fara & Anor [2015] FCA 646.
In this case, the applicant submits that there was an administrative error as the cancellation of his Student visa was subsequently set aside by the Tribunal. However, the fact that the Tribunal has formed a different view to the delegate does not in any way establish an administrative error by the delegate in cancelling the applicant’s visa. It may be that there was more evidence before the Tribunal than was before the delegate when the cancellation decision was made. The Tribunal’s decision indicates that the Tribunal accepted there were grounds for cancelling the applicant’s visa but formed the view that the discretion should be exercised in favour of the applicant, particularly as he was very close to completing his studies in Australia. In such circumstances, it cannot be said that the decision of this Tribunal to set aside the cancellation of the Student visa establishes an administrative error in cancelling the applicant’s Student visa or causing the resultant period of unlawfulness. A different outcome on review does not in any way establish an administrative error on the part of the administrative or executive arm of government. Thus, in Liu and Department of Immigration and Ethnic Affairs (1996) 41 ALD 589 DP Purvis stated:
A decision as to status arrived at after considering relevant materials, set aside on an application for review pursuant to an appeal process, is not ad deviation from accuracy or correctness or a mistake pertaining to administration, to executive, to administrative ability or problems.
The applicant also argues that the citizenship delegate committed an administrative error by failing to have regard to certain evidence. It is not necessary for the Tribunal to determine whether that was the case because the ‘administrative error’ must have resulted in the applicant being an unlawful non-citizen. No error by the citizenship delegate, even if established, was the cause of the applicant’s status as an unlawful non-citizen.
The applicant’s key argument, essentially, is that when cancelling the Student visa, the delegate committed an error in not having regard to the circumstances that led to the allegations. The applicant relies on paragraph 18 of the statement of reasons to cancel the Student visa in which the delegate stated: “I have no specific information in relation to the circumstances that led to the alleged offences occurring and therefore I am unable to apply any weight in favour of the visa holder in considering this factor”. The applicant argues that it was an error for the delegate to embark on weighting the discretionary discretion when no information was available about the allegations. The applicant claims that had it not been for this administrative error, he would have continued to hold a Student visa and then applied for other visas and he would not be an unlawful non-citizen. For the reasons that follow, the Tribunal does not accept that argument.
The ground for cancellation under s 116(1)(e) was established when the delegate formed the view that the visa holder’s presence in Australia is or may be a risk to the community. The ground for cancellation arose in this case because the applicant had been charged with an offence. The cancellation decision indicates that there was information about the charges before the delegate. Under the heading ‘consideration of visa cancellation’ the delegate refers to the information from the Queensland Police of the multiple charges in relation to the applicant. Having considered that information, the delegate formed the view that the charges against the applicant gave rise to the power to cancel his visa and proceeded to consider discretionary factors. In the Tribunal’s view, the information relating to the charges was sufficient for the delegate to give consideration to the circumstances in which the ground for cancellation arose and to determine the weight to give to that consideration when exercising discretion. The delegate states at paragraph 18 of the decision record that there is ‘no specific information in relation to the circumstances that led to the alleged offences occurring’. However, the Tribunal is of view that there was sufficient information before the delegate to perform her duties under the Act because the grounds for cancellation were found to exist and because she had information about the charges. The weight to be given to each of the discretionary considerations was entirely a matter for the delegate.
Further, the Tribunal notes that in the Notice of Intention to Consider Cancellation dated 22 May 2015, the delegate did invite the applicant to provide additional information, including information about the circumstances in which the ground for cancellation arose. The applicant was represented in the cancellation process by a registered migration agent. The decision record indicates that he provided multiple written submissions to the delegate and had the opportunity to address each of the discretionary considerations. In such circumstances, the Tribunal does not consider that the delegate was under an obligation to do anything more.
Guidance is offered by the Department of Immigration and Border Protection Citizenship Policy used by the Minister in 2016 (the Citizenship Policy) on the interpretation and exercise of the powers under the Act. Although the Tribunal is not bound to strictly apply the Citizenship Policy, it 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) 2 ALD 634. The Citizenship Policy at Chapter 3 provides 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 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…
The onus is on the applicant to provide evidence that an administrative error has occurred…
The Tribunal acknowledges that these examples are not exhaustive but the type of matters that are considered to constitute an administrative error are instructive. In this case, there is no suggestion that the applicant was not the holder of a visa because of incorrect recording of visa grant, or incorrect advice by a Departmental officer or erroneous reliance on such advice. At its highest, the applicant is seeking to establish that there was a legal error affecting the delegate’s decision to cancel his Student visa. In the Tribunal’s view, that type of error, even if established (and the Tribunal is not satisfied that it has been established in this case), is not what is contemplated by the term ‘administrative error’. DP Handley stated in Chaudhary and Minister for Immigration and Citizenship [2010] AATA 1006 at [32],
… the ordinary meaning of the words ‘administrative error’ in the context of s 22 of the Act should be interpreted as a reference to a mistake or error made by the administrative or executive arm of government which, in this instances, affected the lawfulness of the person’s residence in Australia.
In the Tribunal’s view, such a mistake or error has not been established in relation to the cancellation of the applicant’s previously held Student visa.
The Tribunal also accepts the applicant’s claim that he had done everything possible to make another visa application before the expiry of his Student visa but was not able to do so and that his application for the Bridging E visa was refused. The Tribunal acknowledges that by the time the previous Tribunal decided to set aside the cancellation, the applicant’s Student visa had already expired and the applicant had no control over the timing of the review. However, none of these matters establish an administrative error contemplated by s 22(4A).
The Tribunal is not satisfied that the applicant was an unlawful non-citizen because of an administrative error. The Tribunal is not satisfied that the applicant meets the criteria for the exercise of Ministerial discretion in s 22(4A) of the Act. There is no evidence that the applicant was born in Australia or that he was an Australian citizen at any time before he made the application. The applicant does not meet the partial exemption in s 22(2). As the applicant was present in Australia as an unlawful non-citizen in the four years before the application was made, the Tribunal is not satisfied that the applicant meets s 22(1)(b) and the general residence requirements in s 22.
DOES THE APPLICANT SATISFY THE SPECIAL RESIDENCE REQUIREMENTS IN S 22A OR S 22B?
The applicant argues that he is engaging in activities that would be of benefit to Australia and that he needs to be an Australian citizen in order to engage in that activity. The applicant presented numerous statements in relation to his research activities and his work. He states that while he can easily travel in and out of Australia his travel and stay overseas is restricted due to his passport. The applicant also notes that the period of time he is able to stay overseas is restricted, which impacts his work and research.
The applicant presented evidence of his employment at Sanofi Gensyme, a multinational pharmaceutical company as a medical science liaison and a medical manager. A statement from his employer indicates that the applicant is required to travel frequently for work purposes and that he needs to apply for a visa every time he is required to travel internationally. The letter indicates that not having an Australian passport limits the applicant’s ability to travel for his scientific research as many countries restrict grant of temporary visas to nationals of Middle Eastern countries. The applicant outlines the benefit and recognition of his work in Australia and internationally.
For the purpose of s 22A(1), the Tribunal has considered whether the applicant is seeking to engage in an activity specified under subsection 22C(1). The relevant Instrument is IMMI 13/056. The Tribunal finds that the work carried out by the applicant is not participation in an Australian team in any of the sporting competitions set out in paragraphs (a)-(g) of paragraph 2 of Schedule A to the Instrument. The Tribunal finds that the activities on which the applicant relies are not activities specified by the Minister for the purpose of subparagraph 22A(1)(a)(i). Further, the organisation is not any of the organisations set out in paragraphs (1) – (5) of Schedule B to the Instrument. The Tribunal finds that the organisation is not an organisation specified by the Minister as an organisation for the purpose of paragraph 22A(1)(b). The Tribunal is not satisfied that the applicant is seeking to engage in an activity specified under subsection 22C(1). The Tribunal is not satisfied the applicant meets s 22A(1)(a). As the applicant does not meet s 22A(1)(a) none of the Ministerial discretions set out in s 22A apply to him. The Tribunal is not satisfied the applicant meets the Special Residence requirements in s 22A.
For the purpose of s 22B, the Tribunal has considered whether the applicant has been engaged in the kind of work specified under subsection 22C(3), as required by s 22B(1)(a).
The relevant work is set out in Schedule C of the Instrument IMMI 13/056. The Tribunal finds that paragraphs 1(a) – (e) do not apply to the applicant. In relation to subpagraph (1)(f), while the applicant is a scientist, he is not employed by an Australian university or CSIRO or a medical research institute which is a member of the Association of Australian Medical Research Institutes. Specifically, there is no evidence before the Tribunal that the applicant’s employer, Sanofi Genzyme is a member of the Association of Australian Medical Research Institutes. The Tribunal is not satisfied the applicant meets subpagraph (1)(f) of Schedule C. Whether or not the applicant can be considered to be a medical specialist, there is no evidence that he is a fellow of an organisation listed in Schedule 4 Part 1 of the Health Insurance Regulations 1975 (Cth) and the applicant conceded in his oral evidence that he was not. The Tribunal is not satisfied the applicant meets subparagraph (1)(g) and he also does not meet subpagraph (1)(h). The Tribunal is not satisfied the applicant engages in a kind of work listed in Schedule C of the Instrument IMMI 13/056. The Tribunal is not satisfied that at the time when he made the application, the applicant was engaged in work of a kind specified under subsection 22C(3). The Tribunal is not satisfied the applicant meets s 22B(1) and the special residence requirements in s 22B.
It follows that the applicant does not satisfy the special residence requirements in ss 22A and 22B.
DOES THE APPLICANT SATISFY THE DEFENCE SERVICE REQUIREMENT?
There is no evidence before the Tribunal that the applicant has completed relevant defence service or that the applicant is a member of the family unit of a person who has completed relevant defence service. The Tribunal is not satisfied the applicant meets the defence service requirement in s 23.
CONCLUSION
The Tribunal is not satisfied that the applicant meets the general residence requirements, the special residence requirements or the defence service requirements. The applicant does not meet s 21(2)(c) of the Act.
In his submissions to the delegate and the Tribunal the applicant has outlined ‘significant hardship and disadvantage’. The Tribunal does not consider it is able to have regard to any hardship or disadvantage that the applicant may experience if his application is not successful. There is no discretion to waive the residence requirements on the basis of hardship or disadvantage.
The Tribunal also acknowledges the large volume of evidence and supporting statements that have been submitted by the applicant during the processing of his application. This evidence relates to his study and his involvement in various community, student and religious activities. The applicant’s evidence is that he has made a significant contribution to Australia and that the decision not to confer an Australian citizenship on him would cause him considerable hardship. The Tribunal accepts that the applicant has made a contribution to the society and is prepared to accept that hardship may be caused by the applicant not holding an Australian citizenship. However, these matters do not assist the applicant in meeting the statutory criteria for the conferral of the Australian citizenship.
DECISION
Having found that the applicant does not meet the residence requirements in s 21(2)(c), the Tribunal affirms the decision under review.
I certify that the preceding 35 (thirty-five) paragraphs are a true copy of the reasons for the decision herein of Senior Member
.............................[sgd]...........................................
Associate
Dated: 2 May 2019
Date of hearing: 24 April 2019 Solicitors for the Applicant: Ms L Soliman, Gateway Law & Migration Australia Pty Ltd
Solicitors for the Respondent: Mr J Hutton, Australian Government Solicitor
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