Sikder and Minister for Immigration and Citizenship
[2010] AATA 837
•28 October 2010
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2010] AATA 837
ADMINISTRATIVE APPEALS TRIBUNAL )
) No 2010/2218
GENERAL ADMINISTRATIVE DIVISION ) Re ABDUL MALEQUE SIKDER Applicant
And
MINISTER FOR IMMIGRATION AND CITIZENSHIP
Respondent
DECISION
Tribunal Ms J L Redfern, Senior Member Date28 October 2010
PlaceSydney
Decision The decision under review is affirmed ..................[sgd]............................
Ms J L Redfern
Senior Member
CATCHWORDS
IMMIGRATION – Citizenship – failure to meet residence requirements – periods of unlawful presence in Australia – no administrative error – decision affirmed
LEGISLATION
Australian Citizenship Act 2007; s 20, 21, 22 and 24
Migration Act 1958: s417
REASONS FOR DECISION
28 October 2010 Ms J L Redfern, Senior Member background
1. Mr Abdul Sikder first arrived in Australia on 6 February 1996 as the holder of a subclass 676 Tourist (short stay temporary) visa. He was granted a subclass 801 Spouse (permanent) visa on 3 June 2008, and on 8 January 2010 he lodged an application for Australian citizenship by conferral after passing an Australian Citizenship test on 13 August 2009.
2. Mr Sikder’s application was refused because he did not satisfy the residence requirements of the Australian Citizenship Act 2007 (the Citizenship Act). Mr Sikder seeks a review of that decision.
legislative and policy framework and the issues
3. Section 20 of the Citizenship Act provides that a person will become an Australian citizen if the Minister decides to approve an application under s 24(1) of the Citizenship Act. This is known as citizenship by conferral.
4. An application for citizenship by conferral may be made where a person meets the eligibility requirements under section 21 of the Citizenship Act.
5. The Minister must not approve an application unless the person is eligible to become an Australian citizen under subsections (2) to (8) (section 24(1A) of the Citizenship Act).
6. Relevantly, section 21(2) of the Citizenship Act provides:
“(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 has completed relevant defence service (see section 23), at the time the person made the application; and
(d)understands the nature of an application under subsection (1); and
(e)possesses a basic knowledge of the English language; and
(f)has an adequate knowledge of Australia and of the responsibilities and privileges of Australian citizenship; and
(g)is likely to reside, or to continue to reside, in Australia or to maintain a close and continuing association with Australia if the application were to be approved; and
(h)is of good character at the time of the Minister’s decision on the application.”
7. The general residence requirements are set out in s 22(1) and provide as follows:
“(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.”
8. If an applicant does not meet the eligibility criteria in respect of the residence requirement, the Minister has certain discretions under sections 22(4A) to (11) of the Citizenship Act.
9. Section 22(4A) provides:
“For the purpose 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.”
10. It is agreed that Mr Sikder does not satisfy the special residence requirements under sections 22A or 22B, nor has he completed the relevant defence service to qualify under section 23 of the Citizenship Act.
11. At the time of his application, Mr Sikder was over 18 years, had passed the Australian Citizenship test and was a permanent resident. The key problem for Mr Sikder is that he did not meet the residence requirements of section 21(2)(c) at the time of his application, because he did not satisfy the general residence requirements of section 22(1) of the Citizenship Act.
12. Mr Sikder was present in Australia for a period of four years immediately before his application, and was present as a permanent resident for a period of 12 months immediately before his application. He therefore satisfies the requirements of subsections 22(1)(a) and (c). However, the Minister asserts that Mr Sikder was unlawfully present in Australia in the periods 17 July 2006 to 24 July 2006 and 2 April 2007 to 5 April 2007 and does not satisfy section 22(1)(b).
13. Mr Sikder denies he was unlawfully present in Australia. He says that he made applications for Ministerial intervention during these periods and this meant he was legally allowed to stay in Australia while these applications were being determined. Mr Sikder submitted that the fact he did not have a visa covering these periods was an administrative error under section 22(4A) and the Minister has a discretion to, in effect, treat those periods as lawful for the purposes of section 22(1)(b).
14. The Minister contends Mr Sikder did not have a valid visa for seven days in July 2006 and for three days in April 2007. As such, he was unlawfully present in Australia during the four year period prior to the application being lodged. The applications for Ministerial intervention did not obviate the need for a visa, and there was nothing in the correspondence from the Minister, or his department, which suggested otherwise. There was no administrative error to enliven the discretion under section 22(4A) of the Citizenship Act and, under section 24(1A), the application must not be approved by the Minister. Mr Sikder will become eligible to apply for citizenship by conferral from April 2011.
15. The issues for the Tribunal are:
(a)Was Mr Sikder present as an ‘unlawful non-citizen’ in the four year period before his application?
(b)If so, was this because of any administrative error and is there a discretion available under section 22(4A) of the Citizenship Act? If there is a discretion, how should it be exercised?
was mr sikder present as an unlawful non-citizen?
16. According to the documentary evidence tendered by the Minister, Mr Sikder lodged an application for a Bridging visa subclass 050 on 24 April 2006, which was granted on that day and expired on 17 July 2006 (Exhibit B and Exhibit A, T8-76). Mr Sikder applied for a further Bridging visa on 24 July 2006 (Exhibit C) and this was granted on the same day. This means that Mr Sikder did not have a valid visa for the period 17 July 2006 to 24 July 2006.
17. Mr Sikder lodged an application for a Bridging visa subclass 050 on 5 March 2007, which was granted on that day (Exhibit D). According to a document which Mr Sikder agrees he signed, namely ‘Decision Record and Notice of Conditions and Security’ dated 5 March 2007, the visa expired on 2 April 2007 (Exhibit E). Mr Sikder lodged a further application for a Bridging visa on 5 April 2007 (Exhibit G) and the visa was granted on that day (Exhibit A, T8-73). This means that Mr Sikder did not have a valid visa for the period 2 April 2007 to 5 April 2007.
18. Mr Sikder told the Tribunal that he has lived in Australia for 14 years and has made many applications for visas until his permanent visa was granted in 2008. The process has been very frustrating and he applied for Ministerial intervention on a number of occasions. He gave evidence that he recalls receiving a letter before 24 July 2006 advising him he had 28 days to consider any appeal and could stay in Australia until then. Mr Sikder did not keep copies of any correspondence relating to this application, but believes he showed the letter to an officer of the Department of Immigration and Citizenship (the Department) at the time he made the application for a Bridging visa on 24 July 2006, who granted the visa on the basis of this letter. Mr Sikder says this letter covered the period when his visa lapsed and he was therefore lawfully present in Australia. If this was not the effect of the letter, this was not his fault and was an administrative error.
19. Mr Sikder told the Tribunal he had received a similar letter before 5 April 2007, he thinks sometime in late March 2007. He showed that letter to staff in the Department and was issued with a Bridging visa on the same day of his application. Mr Sikder says this letter covered the period of the three day gap between when his previous visa expired and when his visa was granted, and he believed he was lawfully present in Australia at that time. Otherwise, this was an administrative error and the Minister has discretion to treat his period of presence as not being unlawful.
20. Mr Sikder was cross-examined on these issues and maintained he had received correspondence of this nature but had not kept copies.
21. Mr Sikder had not raised this issue in his application or at previous conferences and, as such, no documents were produced regarding Mr Sikder’s various applications for Ministerial intervention. As this issue was material to Mr Sikder’s case, the Tribunal allowed an adjournment and directed the representative for the Minister to produce all relevant documents to both the Tribunal and Mr Sikder.
22. The documents produced showed that in the relevant period covering the two periods of alleged unlawful presence, Mr Sikder had made two applications for Ministerial intervention under section 417 of the Migration Act 1958 (the Migration Act). The first application for intervention was made by Senator Aden Ridgeway on his behalf by letter dated 10 December 2003. The Department wrote to Mr Sikder’s immigration agents, Adrian Joel & Co, by letter dated 27 May 2005, requesting information to process the application. At the bottom of a letter there was the following note:
“IMPORTANT NOTE REGARDING YOUR CLIENT’S IMMIGRATION STATUS
All non-citizens are required to hold a valid visa (including Bridging visas) at all times whilst in Australia. If your client does not currently hold a valid visa, or if a current visa is about to expire, your client (and family unit members, where applicable) should urgently approach the Compliance Section of the closest Regional Office of this Department to clarify his or her visa status. Please note that persons who do not hold a visa may be liable for mandatory detention should they fail to approach the Compliance Section to regularise their visa status. Your client should show this letter to the Compliance officer.”
23. There was nothing in this letter or any other correspondence relating to Mr Sikder’s application for intervention, to the effect that he was entitled to remain in Australia pending the determination of the application. In fact the note at the end of the letter of 27 May 2005 suggested otherwise if Mr Sikder did not have a valid visa.
24. This application for intervention was resolved on 20 November 2006, when the then Minister for Immigration and Multicultural Affairs, Senator Amanda Vanstone, advised she would not exercise her discretion in favour of Mr Sikder.
25. A further application for intervention was made by Mr Sikder by letter dated 9 January 2007. Mr Sikder received a response to his application from the Ministerial Interventions Unit of the Department by letter dated 29 January 2007. The letter noted the Minister was considering the request, but made no reference to Mr Sikder’s entitlement to remain in Australia while the application was being determined. Mr Sikder received a second latter dated 19 February 2007 which was in similar terms as the previous letter. Mr Sikder’s application was also supported by his local member, Ms Tanya Plibersek MP, by letter dated 20 February 2007.
26. This application was resolved on 2 July 2007 with the then Minister, the Honourable Kevin Andrews MP, agreeing to intervene to grant Mr Sikder a subclass 676 Tourist visa for six months, with work rights.
27. The Minister contends these applications did not allow Mr Sikder to remain in Australia, and he still needed to hold a valid visa to be lawfully present in Australia.
28. Mr Sikder contends that he could lawfully remain in Australia without the need to obtain a visa until his applications for intervention had been determined by the Minister. He concedes there is nothing in the correspondence that states this but in his view ‘this was the law’. He could not refer to any legislation or Department and/or Ministerial direction or guideline to this effect.
29. I do not accept Mr Sikder’s contention. The Migration Act provides for visas permitting non-citizens to enter or remain in Australia. According to section 4 of the Migration Act, the legislation is the only source of the right of non-citizens to enter or remain in Australia. The Minister contends there is no provision that allows non-citizens to remain in Australia other than through having a valid visa. Mr Sikder could not refer to any provision in the Migration Act that would apply.
30. If Mr Sikder believed he did not need to apply for a visa while his applications for Ministerial intervention were being determined, he was mistaken. This stated belief also appears to be inconsistent with his actions, as evidenced through Department records, which show Mr Sikder applied for his Bridging visa to be ‘renewed’ on many occasions during the period December 2003 and July 2007. The only periods Mr Sikder did not have a valid visa in place are the two short periods in July 2006 and April 2007, when Mr Sikder did not make application before the previous grant expired.
31. I therefore find that Mr Sikder was present in Australia as an unlawful non-citizen in the periods 17 July 2006 to 24 July 2006 and 2 April 2007 to 5 April 2007.
was there administrative error and is there discretion?
32. There is no evidence of any administrative error under section 22(4A) of the Citizenship Act. The correspondence from the Department dated 27 May 2005 was clear. If there had been incorrect information provided to Mr Sikder about the need for a visa and, on the basis of this incorrect information, Mr Sikder had refrained from obtaining a Bridging visa that he would otherwise have been granted, Mr Sikder may have had some cause to complain. However, there is no such evidence, and it appears that the two periods of ‘unlawful presence’ resulted from Mr Sikder’s mistaken understanding and/or an oversight on his part to apply for a Bridging visa before his previous visa expired. This is no doubt very frustrating for Mr Sikder who has been making numerous applications with the Department over the past 14 years to allow him to remain in Australia. He wants to become an Australian citizen but will now have to wait until April 2011 before he can re-apply.
33. There is no discretion to treat the periods of unlawful presence as lawful in the absence of an administrative error.
conclusion
34. Mr Sikder does not satisfy the general residence requirement of section 21(2)(c) of the Citizenship Act and is not eligible to become an Australian citizen. His application therefore must be refused.
35. I am satisfied that the decision under review is correct and should be affirmed.
I certify that the 35 preceding paragraphs are a true copy of the reasons for the decision herein of Ms J L Redfern, Senior Member.
Signed: .....................................................................................
AssociateDate/s of Hearing 23 August and 21 October 2010
Date of Decision 28 October 2010
Solicitor for the Applicant Self represented
Solicitor for the Respondent Ms J Cumming
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