SHAN ApplicantAndMINISTER FOR IMMIGRATION AND CITIZENSHIP
[2010] AATA 923
•19 November 2010
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2010] AATA 923
ADMINISTRATIVE APPEALS TRIBUNAL )
) No. 2010/1524
GENERAL ADMINISTRATIVE DIVISION ) Re JUN PING SHAN Applicant
And
MINISTER FOR IMMIGRATION AND CITIZENSHIP
Respondent
DECISION
Tribunal Mr D M Connolly, AM, Member Date19 November 2010
PlaceSydney
Decision The decision under review is affirmed. ................[sgd]..............................
Mr D M Connolly, AM
Member
CATCHWORDS
CITIZENSHIP – eligibility – general residence requirement – where applicant was unlawful non-citizen for periods during the four years prior to his application for citizenship – whether discretions can be exercised in the applicant’s favour – whether there was an administrative error – whether the applicant will suffer significant hardship or disadvantage – decision under review affirmed
Australian Citizenship Act 2007 (Cth) ss 21, 22
Australian Citizenship Instructions Chapter 5
REASONS FOR DECISION
19 November 2010 Mr D M Connolly, AM, Member 1. The Applicant, Jun Ping Shan, a permanent Australian resident, applied to the Tribunal for a review of a decision made by a delegate of the Minister for Immigration and Citizenship to refuse his application for Australian citizenship. The reason stated for the delegate’s decision was that the Applicant had failed to satisfy one of the eligibility requirements for citizenship, specifically the “residence requirement” contained in the Australian Citizenship Act 2007 (Cth) (“the Act”).
2. The Applicant was joined in his citizenship application by his son Jason Shan, aged 5 years. However, as the application to the Tribunal for a review of the Minister’s decision did not include reference to him, the Tribunal has not made a decision on the son’s application.
3. For the reasons that follow, I have found that the Applicant does not satisfy the general residence requirement and is, accordingly, not eligible for Australian citizenship.
ISSUES
4. The issues to be determined in this review are whether the Applicant satisfied the general residence requirement, and, if not, whether any ministerial discretions can be exercised in his favour.
CITIZENSHIP ACT
5. Section 21(2) of the Act provides that a person is eligible to become an Australian citizen if, among other things, the decision-maker is satisfied that the Applicant:
(c) Satisfies the general residence requirement (see section 22) or the special residence requirement (see section 22A or 22B), or has completed relevant defence service (see section 23), at the time the person made the application;
6. The Applicant has not claimed that he completed relevant defence service, nor did he claim to have met the special residence requirement. The general residence requirement is contained in section 22 of the Act and provides:
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 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.
7. Section 22(4A) of the Act also states:
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.
POLICY GUIDANCE
8. Chapter 5 of the Australian Citizenship Instructions (ACIs) states:
To meet the general residence requirement (s22) a person is required to have been lawfully present in Australia for a period of four years immediately prior to making their application, including the last 12 months as a permanent resident.
…
Under s22(1)(b), a person cannot meet the general residence requirement if they have been an unlawful non-citizen at any time during the 4-year period immediately before applying for citizenship. This means they will need to have spent 4 years in Australia since last ceasing to be an unlawful non-citizen before meeting the general residence requirement, unless they became unlawful because of administrative error - see Ministerial discretion - administrative error (s22(4A) & (5)).
9. A definition of “unlawful non-citizen” is found in section 3 of the Act and sections 13 and 14 of the Migration Act 1958 (Cth). The ACIs further state that:
A person's presence in Australia is determined to be lawful in accordance with the Migration Act. A person is lawful if they hold a visa that is in effect.
An unlawful non-citizen is a person who is not an Australian citizen and is present in Australia without a valid visa.
BACKGROUND
10. According to Departmental records, the Applicant Jun Ping Shan, who was born in China in 1957, married Ming Fang Xu in China in February 1984. He was granted a subclass 672 Tourist visa on 31 October 1995 and arrived in Australia with his wife on 14 November 1995. On 11 December 1995 he was granted a subclass 010 Bridging A visa. On 3 April 1998 he was granted a 050 Bridging E visa and on 3 August 1998 a further subclass 050 Bridging E visa. On 9 February 1999 he was granted another subclass 050 Bridging E visa which expired on 23 June 1999 when the Applicant became an unlawful non-citizen. A son, Jason Shan, was born in Australia in April 2005.
11. On 19 November 2007 the Applicant was granted a subclass 050 Bridging E visa which was followed by the granting of further subclass 050 Bridging E visas on 6 February 2008, 5 March 2008 and 13 March 2008, this latter visa expired on 27 May 2008 and he became again an unlawful non-citizen. The Applicant remained unlawful until granted a further subclass 050 Bridging visa on 28 May 2008. He was granted a subclass 050 Bridging E visa on 22 August 2008, which expired on 22 November 2008 when he again became an unlawful non-citizen.
12. On 26 November 2008 he was granted a further subclass 050 Bridging E visa which expired on 25 February 2009 and he became an unlawful non-citizen. On 2 March 2009 he was granted a subclass 050 Bridging E visa and on 5 March 2009 a subclass 851 Resolution of Status visa.
13. On 1 February 2010 the Applicant’s application for Australian citizenship, dated 10 January 2010, was received by the Department of Immigration and Citizenship and on 25 March 2010 the Minister’s delegate refused the application. On 19 April 2010 the Applicant applied to the Administrative Appeals Tribunal for a review of that decision.
RESPONDENT’S CONTENTIONS
14. The relevant period for consideration for the purposes of sections 22(1)(a) and 22(1)(b) is the period from 1 February 2006 to 31 January 2010, that is, the four years immediately before the day the Department received the Applicant’s citizenship application.
15. At the time of his application for citizenship the Applicant had been in Australia since 14 November 1995 and therefore it was not disputed by the Respondent that he satisfied section 22(1)(a).
16. However, the Respondent contended that the effect of section 22(1)(b) of the Act is that if the Applicant was in Australia as an unlawful non-citizen at any time during the four year period prior to his citizenship application, he would not be eligible for a grant of citizenship.
17. According to the Applicant’s visa records he did not hold a valid visa for the following periods during the relevant four year period:
·1 February 2006 to 19 November 2007;
·a period during 28 May 2008;
·23 to 26 November 2008; and
·26 February 2009 to 2 March 2009.
17. Although the Applicant was in Australia during those periods it was contended that he was in Australia as an unlawful non-citizen during the four year period immediately before the day he applied for citizenship and therefore does not satisfy section 22(1)(b) of the Act. Furthermore, the Respondent submitted that the Applicant was not a permanent resident for the 12 months prior to applying for Australian citizenship and therefore does not satisfy section 22(1)(c) of the Act.
APPLICANT’S CLAIMS
18. The Applicant submitted written evidence to the Tribunal on 27 May 2010 which consisted of his statement and letters dated 27 May 2008, 20 November 2008 and 19 February 2009 in support of his claim that he had requested an extension of his bridging visa before it expired. He contended before the Tribunal that, as his agent had submitted written requests for visa extensions on those dates and as they were received by the Department, there was no error on his part, only on that of the recipient in not acting immediately upon their receipt.
19. The Applicant failed to provide the Tribunal with a satisfactory explanation as to why he did not apply to regularise his visa status between 1 February 2006 and 19 November 2007 when he remained an unlawful non-citizen.
ADMINISTRATIVE ERROR DISCRETION
20. As noted above, section 22(4A) provides for the purposes of section 22(1)(b), that the Minister (or this Tribunal standing in the shoes of the Minister) may treat a period as one in which the Applicant was not present in Australia as an unlawful non-citizen, if the decision maker considers the person was present in Australia during that period but, because of an administrative error, was an unlawful non-citizen during that period.
21. According to the ACIs the concept of “administrative error” embraces a range of administrative actions and is not limited to the actions of the Department. In broad terms it will extend to administrative mistakes and circumstances in which incorrect information is provided. While each case needs to be assessed on its own merits, “a delay in processing an application does not constitute an administrative error in itself.”
22. The Respondent contended that there was no administrative error as neither the Migration Act 1958 nor the Migration Regulations 1994 specify a period within which an application for a bridging visa must be determined, unless the applicant is an eligible non-citizen in immigration detention which did not apply in this instance. The ACIs provide a non exhaustive list of administrative errors, including unlawful cancellation of a visa, grant of a temporary visa to a permanent visa holder, and double processing of a visa application, none apply in the Applicant’s situation.
23. The Tribunal is satisfied that where a person applies for a further bridging visa before their active bridging visa has expired, an obligation is not imposed upon the Department under the Act or regulations to urgently grant a new visa before the expiration of the previous active visa. Consequently, upon receipt of the correspondence from the Applicant’s agent, the Department was not obligated to grant a new bridging visa within such time as to ensure that the Applicant remained lawfully resident in Australia.
24. Section 22(5) also gives the Minister a discretionary power to treat a period as one in which the person was present in Australia as a permanent resident if the person was present in Australia but because of an administrative error was not a permanent resident. However, the Tribunal found no evidence of an administrative error, consequently, the Applicant cannot rely on the discretions contained in sections 22(4A) and 22(5) of the Act.
HARDSHIP DISCRETION
25. The Act provides that where an applicant does not satisfy section 22(1)(c), the Minister may treat a period as one in which the person was present in Australia as a permanent resident, if they are satisfied that the person will suffer “significant hardship or disadvantage” if that period were not treated as one during which the person was present in Australia as a permanent resident under section 22(6) of the Act.
26. However, this is not available if the applicant was present in Australia as an unlawful non-citizen. The Tribunal is aware that the Applicant was unlawful only for a few days before he was granted permanent residency, so if this discretion was exercised in his favour it would at best only give him two additional days.
27. The Applicant claimed that the denial of citizenship at that time was a disadvantage to him, as it meant he could not travel to China to see his adult son and aged parents. He further claimed that the Chinese authorities had refused to reissue him with a valid Chinese passport, which had expired on 28 September 1999, because they deemed that he was now an Australian permanent resident as he was granted a subclass 851 Resolution of Status visa which gave him permanent residency, a status also enjoyed by his wife.
28. The Departmental ACIs provide a definition of “disadvantage” drawn from the Macquarie Dictionary: something that causes suffering or privation an unfavourable circumstance, thing or person; injury, loss or detriment.
29. Decision makers are required to assess applications on their merits and while policy should not be applied inflexibly, it must be applied, unless there are special circumstances that would warrant consideration outside that policy and evidence of “significant disadvantage” is required. The onus is on the Applicant to provide the evidence.
30. The Applicant claimed that his inability to obtain a replacement passport from the Peoples’ Republic of China demonstrated that he has met the standard required to demonstrate disadvantage.
31. The Tribunal is not satisfied that the Applicant has demonstrated “significant disadvantage” as required by the ACIs because he was entitled to visit China at any time up to 28 September 1999, when his passport expired, to see his aged parents and son. He chose not to do so and provided the Tribunal with no reasons. The Tribunal accepts that the Applicant will not be eligible to apply for citizenship before March 2013, however, had he taken steps to regularise his visa over the period 1 February 2006 to 19 November 2007 he would have established his eligibility for Australian citizenship much earlier.
CONCLUSION
32. I am satisfied that the Applicant failed to meet the requirements in sections 22(1)(b) and 22(1)(c) of the Act, and thus does not meet the residency requirements to be eligible for Australia citizenship under section 21(2)(c) of the Act.
33. I have found that there is no evidence that during the period under review, the Applicant’s status as an unlawful non-citizen was caused by an administrative error on the part of the Department.
34. I am not satisfied that the discretion available under section 22(6) should be exercised in the Applicant’s favour. Nor am I satisfied that there are special circumstances which would warrant consideration outside the policy.
DECISION
35. The decision to refuse the Applicant’s application for Australian Citizenship must be affirmed.
I certify that the 35 preceding paragraphs are a true copy of the reasons for the decision herein of Mr D M Connolly, AM, Member.
Signed: ..................[sgd]............................................................
AssociateDate of Hearing 27 September 2010
Date of Decision 19 November 2010
Appearance for the Applicant Self-represented
Solicitor for the Respondent Mr R Bower, Clayton Utz
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