Shen and Minister for Immigration and Border Protection (Citizenship) - [2018] AATA 766

Shen and Minister for Immigration and Border Protection (Citizenship) [2018] AATA 766 (9 April 2018)
Division:GENERAL DIVISION
File Number: 2017/5802
Re:Liang Shen
APPLICANT

AndMinister for Immigration and Border Protection
RESPONDENT

DECISION
Tribunal:Dr L Bygrave, Member
Date:9 April 2018
Place:Sydney

The decision under review is affirmed.
......................[sgd]..............................................
Dr L Bygrave, Member
CATCHWORDS
CITIZENSHIP – citizenship by conferral – permanent resident status requirement – general residence requirement – earlier Australian citizenship approval cancelled – residency status not re-enlivened – administrative error – application of Citizenship Policy – decision affirmed
LEGISLATION
Australian Citizenship Act 1948 (Cth) s 15(1)
Australian Citizenship Act 2007 (Cth) ss 20, 21(2)(b), (c), 22(4A), (5), 24(1A), 25
CASES
Re Drake and Minister for Immigration and Ethnic Affairs (No 2) [1979] AATA 179; (1979) 2 ALD 634
SECONDARY MATERIALS
Citizenship Policy, Department of Immigration and Border Protection (Published 1 June 2016)
REASONS FOR DECISION
Dr L Bygrave, Member
9 April 2018

The applicant, Mr Liang Shen, was born in China in 1963.
The matter before the Tribunal relates to an application for Australian citizenship made by Mr Shen on 18 September 2014 in accordance with section 21 of the Australian Citizenship Act 2007 (Cth) (the Act).
On 7 September 2017, Mr Shen’s application was refused by a delegate of the Minister for Immigration and Border Protection (the Minister) because Mr Shen did not satisfy:
·the permanent resident status requirement in paragraph 21(2)(b) of the Act; and
·the general residence requirement in paragraph 21(2)(c) of the Act.
The Minister’s delegate also determined that Mr Shen did not satisfy the general residence requirement as a consequence of an administrative error as provided in subsections 22(4A) and 22(5) of the Act.
On 27 September 2017, Mr Shen applied to the General Division of the Administrative Appeals Tribunal (the Tribunal) for a review of that decision.
The matter was heard in Sydney on 28 March 2018. Mr Shen attended the hearing and gave evidence in person. He did not have legal representation and was assisted by an interpreter of the Mandarin language.
RELEVANT LEGISLATION AND ISSUE
Section 20 of the Act states that:
A person becomes an Australian citizen if:
(a) the Minister decides under subsection 24(1) to approve the person becoming an Australian citizen; and
(b) if the person is required to make a pledge of commitment to become an Australian citizen – the person makes that pledge.
Where a person makes an application under section 21 of the Act, the Minister must not approve the person becoming an Australian citizen unless the person is eligible to become an Australian citizen: see subsection 24(1A) of the Act.
The general eligibility requirements for the conferral of Australian citizenship are set out in subsection 21(2) of the Act. The provisions relevant to the determination of this application are as follows:
(2) A person is eligible to become an Australian citizen if the Minister is satisfied that the person:
(a) is aged 18 or over at the time the person made the application; and
(b) is a permanent resident:
(i) at the time the person made the application; and
(ii) at the time of the Minister’s decision on the application; and
(c) satisfies 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; and… [emphasis added]
The general residence requirement is set out in section 22 of the Act. The relevant provisions are 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 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. [emphasis added]
The Tribunal is satisfied that Mr Shen meets the requirement in paragraph 21(2)(a) of the Act as he was aged over 18 years at the time he made the application.
The issue for determination by the Tribunal is whether Mr Shen satisfies the requirements for the conferral of Australian citizenship at the date of his application for citizenship on 18 September 2014. In particular, the Tribunal must determine whether Mr Shen was:
·a permanent Australian resident on 18 September 2014;
·present in Australia as an unlawful non-citizen at any time in the four years prior to 18 September 2014; and
·a permanent resident of Australia for the period of 18 September 2013 to 18 September 2014.
Relevant to this matter, the Minister has discretion in circumstances where there has been administrative error as provided in subsections 22(4A) and 22(5) of the Act:
Ministerial discretion – administrative error
(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.
(5) For the purposes of paragraph 1(c), the Minister may treat a period as one in which the person was present in Australia as a permanent resident if the Minister considers the person was present in Australia during that period but, because of an administrative error, was not a permanent resident during that period.
Citizenship Policy
The Citizenship Policy offers guidance on the interpretation of the Act. Although I am not bound to strictly apply the Citizenship Policy, it is government policy and should be considered unless there are cogent reasons not to do so: Re Drake and Minister for Immigration and Ethnic Affairs (No 2).[1]
[1] [1979] AATA 179; (1979) 2 ALD 634.
Chapter 7 of the Citizenship Policy provides guidance in relation to eligibility for conferral of Australian citizenship. It states:
Permanent resident for conferral
Applicants for Australian citizenship by conferral under s 21(2), 21(3) and 21(4), lodged on or after 7 October 2008, are required to be permanent residents at the time they apply and at the time of decision. If the applicant ceases to be a permanent resident before the decision on their application they must be refused citizenship.
Applicants for Australian citizenship by conferral under s 21(5) lodged on or after 9 November 2009, are required to be permanent residents at the time they apply and at the time of decision. [emphasis added]
Residence requirement
Applicants for citizenship by conferral under the general eligibility pathway (s 21(2)), s 21(3), s 21(4)) and under policy for applicants aged 16 or 17 years applying under s 21(5), must satisfy a residence requirement. From 21 September 2009, two special residence requirements were added into the Act.
Most applicants will be required to meet the general residence requirement (s 22). However, a person will meet the residence requirement if they satisfy any of the four residence requirements set out in the Act.
The Citizenship Policy at Chapter 3 provides further 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 noncitizen 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. [emphasis added]
EVIDENCE
Although the application before the Tribunal relates to Mr Shen’s application for Australian citizenship made on 18 September 2014, Mr Shen has a substantial history relating to his residence in Australia and conferral of his Australian citizenship. As Mr Shen’s history has relevance to this matter, I set out the information below.
Mr Shen’s citizenship status
Mr Shen first arrived in Australia on 24 December 1989. He was initially issued a student (temporary) visa and on 15 March 1995, he was granted a subclass BF154 (resident return) visa.
Mr Shen lodged an application for Australian citizenship on 2 May 1997. This application was approved on 23 June 1997 and Mr Shen was invited to attend a citizenship ceremony to make a final pledge at Ashfield Municipal Council on 23 October 1997.
Based on available information, the (then named) Department of Immigration and Multicultural Affairs (the Department) understood Mr Shen attended the citizenship ceremony on 23 October 1997 and concluded he had become an Australian citizen in accordance with subsection 15(1) of the Citizenship Act 1948 (Cth), which was the relevant legislation for the conferral of Australian citizenship at that time. Mr Shen subsequently applied for and acquired an Australian passport that was issued on 30 January 1998.[2]
[2] Exhibit A3.
In 2001, the Department learned that Mr Shen was overseas at the time of his citizenship ceremony on 23 October 1997 and considered that he could not have taken the pledge of commitment.
Mr Shen does not dispute that he did not attend the citizenship ceremony on 23 October 1997. His travel records show that he departed Australia on 8 October 1997 and returned on 10 November 1997.[3]
[3] Exhibit T6, page 159.
Mr Shen told the Tribunal he travelled to China as his mother was critically ill with lung cancer. Records show the death of his mother, Fengxiang Shen, was reported to Waitan Police Station on 8 December 1997.[4] As Mr Shen was outside Australia at the date of the citizenship ceremony, he asked a friend to attend in his place.
[4] Exhibit T10, pages 179 and 183.
On 30 May 2007, the (then named) Department of Immigration and Citizenship wrote to Mr Shen advising him that the Department had information he was outside of Australia on the date of the citizenship ceremony on 23 October 1997. The letter stated:
If you did not make a pledge of commitment, you are not an Australian citizen. In these circumstances, this Department is presently considering whether in fact you are an Australian citizen.
If the Department were to decide to treat you as not being an Australian citizen, that may have serious implications for you.[5]
[5] Exhibit T7, page 166.
Mr Shen’s migration agent at the time, Mr Peter Bollard, confirmed to the Department by telephone on 16 August 2007 that Mr Shen ‘did not attend the ceremony as he was offshore’ and his ‘non-attendance was a genuine misunderstanding’.[6]
[6] Exhibit T8, page 167.
Mr Shen renewed his Australian passport on 14 January 2008 with a date of expiry of 14 January 2018.[7]
[7] Exhibit A3.
On 23 January 2014, the Department of Immigration and Border Protection (the Department) cancelled Mr Shen’s Australian passport because he ‘is not an Australian citizen’.[8] On 2 July 2014, the Department notified Mr Shen by letter of the intention to cancel the approval of his application for conferral of Australian citizenship.[9]
[8] Exhibit T5, page 156.
[9] Exhibit T9.
Mr Shen responded to the Department’s notice on 21 July 2014, providing written statements and documents.
On 10 September 2014, a delegate of the Minister cancelled Mr Shen’s approval for Australian citizenship by conferral in accordance with section 25 of the Act. Mr Shen subsequently re-applied for the conferral of Australian citizenship on 18 September 2014 (which was refused on 7 September 2017, as noted in paragraph 3 above). It is the refusal of this application by the Minister that is the subject of this review by the Tribunal.
Mr Shen told the Tribunal that he currently is neither a citizen of China or Australia. As Mr Shen was unable to hold dual citizenship of China and Australia, he understands his Chinese citizenship lapsed when he became an Australian citizen in 1997.
Mr Shen’s residence status
As noted in paragraph 18 above, Mr Shen was granted a subclass BF154 (resident return) visa on 15 March 1995, which permitted him to ‘remain in Australia indefinitely’ and undertake ‘multiple travel’ to and from Australia until 15 March 1998.[10]
[10] Exhibit R2.
Mr Shen used his Australian passport issued on 30 January 1998 to travel into and out of Australia. The first occasion Mr Shen departed Australia after acquiring his passport was 26 July 2004 and he returned to Australia on 9 August 2004.
The Minister submits that as the travel facility on Mr Shen’s subclass BF154 (resident return) visa expired on 15 March 1998 and he did not renew the travel facility before departing Australia, this visa ceased at the time of his departure on 26 July 2004. No visa was issued to Mr Shen on his return on 9 August 2004 as he entered Australia on his Australian passport.[11]
[11] Respondent’s Statement of Facts, Issues and Contentions dated 7 February 2018, paragraph 11, which the Tribunal notes incorrectly dated Mr Shen’s departure from Australia as 9 August 2004. Relying on Mr Shen’s travel records at Exhibit T6, pages 159 and 163, the Tribunal confirms that Mr Shen departed Australia on 26 July 2004 and arrived back in Australia on 9 August 2004.
Following the Department’s notice of intention to cancel his citizenship on 2 July 2014, Mr Shen enquired with the Department about applying for a subclass 155 (resident return) visa on 14 July 2014.
The Department informed Mr Shen by email dated 22 July 2014 that he is ‘now lawfully holding a subclass BF-154 permanent visa’.[12] A VEVO for Visa Holders entitlement details dated 22 July 2014 states that Mr Shen’s subclass BF154 visa granted on 15 March 1995 had a status of ‘In Effect’ and allows Mr Shen ‘multiple entries to and from Australia during the validity of [his] visa’ but he must not arrive after 25 November 2013. The details provide for an indefinite period of stay as a permanent resident.
[12] Exhibit T1, page 8.
Mr Shen relies on this VEVO statement to contend that he was a permanent resident of Australia on 22 July 2014.
The Minister submits that this information appears to be incorrect and the bureaucracy – namely the Australian Passport Office and the Department – was unclear about Mr Shen’s residency status in view of his citizenship history. At the hearing, the Minister’s representative suggested there was confusion about Mr Shen’s residency status from 2001 following uncertainty about whether his Australian citizenship was conferred in 1997 due to his non-attendance at the citizenship ceremony.
On 4 April 2017, Mr Shen applied for a permanent visa. He was granted a return (residence) (class BB) (subclass 155) permanent visa on 21 April 2017.[13]
[13] Exhibit T2, page 16; Exhibit T13, page 225.
CONSIDERATION
The Minister submits that Mr Shen was not a permanent resident either at the time he made his application for Australian citizenship on 18 September 2014 or for the 12 months immediately before he made his application. The Minister further contends that Mr Shen was present in Australia as an unlawful non-citizen in the four years prior to his application for Australian citizenship on 18 September 2014.
Mr Shen disputes the Minister’s submissions. He acknowledged to the Tribunal that he made an error in not attending the citizenship ceremony to make the pledge on 23 October 1997 but submitted that he was a permanent resident both at the date of and for the four years prior to his application for Australian citizenship on 18 September 2014.
The evidence before the Tribunal clearly demonstrates there has been confusion about Mr Shen’s residency and citizenship status. This confusion has been substantially exacerbated by the extensive period of time – a total of 13 years – the Department took to respond to and act on information about Mr Shen’s citizenship status. Despite the Department being aware of information from 2001 that raised questions about Mr Shen’s status as an Australian citizen, the Department did not inform Mr Shen about this information until 2007. Mr Shen was able to renew his Australian passport in 2008 and the Department took no further action until 2014, when Mr Shen’s passport was cancelled and he was subsequently informed that he was not an Australia citizen. Mr Shen then waited a further three years before being informed that his application for Australian citizenship was refused.
Relevant to deciding this matter, the question posed at the hearing was whether Mr Shen’s permanent residency status – his subclass BF154 (permanent resident) visa – was effectively re-enlivened after the approval of his Australian citizenship by conferral was cancelled on 10 September 2014.
Mr Shen’s movement details records show he travelled to and from Australia on a subclass BF154 visa until 10 November 1997.[14] When Mr Shen next departed Australia on 26 July 2004 and re-entered Australia on 9 August 2004, a visa was not issued because Mr Shen travelled on his Australian passport.[15] Mr Shen’s permanent residence status then effectively ceased because the Department thought he was an Australian citizen.
[14] Exhibit T6, pages 163-165.
[15] Exhibit T6, page 163.
There is no evidence before me that shows that Mr Shen’s residency status was re-enlivened following the approval of his Australian citizenship by conferral being cancelled on 10 September 2014. The information provided to Mr Shen by the Department on 22 July 2014 – that he was lawfully holding a subclass BF154 permanent visa – was incorrect and an administrative error.
I am satisfied that Mr Shen could not be considered a permanent resident following the cancellation of his Australian citizenship unless and until he applied for a permanent residence visa. Mr Shen did not apply for a permanent resident visa until 4 April 2017 and this was granted on 21 April 2017.
Based on the evidence before me, I am satisfied that Mr Shen was not a permanent resident at the time he made his application for Australian citizenship on 18 September 2014. This means that he does not meet the requirement in paragraph 21(2)(b) of the Act.
I further find that Mr Shen does not meet the requirement in paragraph 21(2)(c) of the Act because he does not satisfy the general residence requirement in section 22 of the Act. This is due to Mr Shen not meeting the requirements in:
·paragraph 22(1)(b) of the Act because he was present in Australia as an unlawful non-citizen during the four years prior to his application for Australian citizenship on 18 September 2014; and
·paragraph 22(1)(c) of the Act because he was not present in Australia as a permanent resident for the 12 months prior to the date of his application for Australian citizenship.
I have also considered the discretion for administrative error provided in subsections 22(4A) and 22(5) of the Act. As set out in paragraph 44, the evidence before the Tribunal shows the Department made an administrative error on 22 July 2014 by incorrectly informing Mr Shen that he held a permanent visa. Mr Shen was not advised of any changes to this information until he received an email from a Department citizenship officer on 29 March 2017.[16] An email from a (different) citizenship officer at the Department to Mr Shen on 23 September 2015 stated: ‘Your status is a Chinese citizen and an Australian permanent resident’. This also appears to be an error because Mr Shen’s Chinese citizenship lapsed when he became an Australian citizen in 1997 and he was not a permanent Australian resident on 23 September 2015.
[16] Exhibit A2, attachments I and J.

Unfortunately for Mr Shen, even after I apply the discretion for administrative error, which provides that the period from 22 July 2014 to 18 September 2014 be treated as a period where he was a permanent resident and a lawful citizen, he is not able to satisfy the requirements in paragraphs 21(2)(b) and (c) of the Act.
CONCLUSION
I am satisfied that Mr Shen did not meet the requirements for the conferral of Australian citizenship at the date of his application on 18 September 2014.
DECISION
The decision under review is affirmed.

I certify that the preceding 51 (fifty-one) paragraphs are a true copy of the reasons for the decision herein of Dr L Bygrave, Member

.......................[sgd].............................................
Associate
Dated: 9 April 2018

Date(s) of hearing: 28 March 2018

Applicant: In person

Solicitors for the Respondent: D Clarke, Clayton Utz

Date(s) of hearing:	28 March 2018
Applicant:	In person
Solicitors for the Respondent:	D Clarke, Clayton Utz