Taleb and Minister for Home Affairs (Citizenship)

[2019] AATA 244

Taleb and Minister for Home Affairs (Citizenship) [2019] AATA 244 (28 February 2019)

Division:GENERAL DIVISION

File Number(s):      2018/2318

Re:Ahmad Taleb

APPLICANT

AndMinister for Home Affairs

RESPONDENT

DECISION

Tribunal:Chris Puplick AM, Senior Member

Date:28 February 2019

Place:Sydney

The decision under review is affirmed.

..........................[sgd]..............................................

Chris Puplick AM, Senior Member

CATCHWORDS

CITIZENSHIP – application for citizenship by conferral – return resident – unable to satisfy general residency requirement – overseas absences – ministerial discretion sought to consider administrative error – processing time – decision affirmed

LEGISLATION

Australian Citizenship Act 2007 (Cth)

CASES

Dranichnikov and Another v Centrelink and Another (2003) 75 ALD 134

Fenn v Minister for Immigration and Multicultural Affairs [2000] AATA 931

Re Ji Xian Liu and Others and Department for Immigration and Ethnic Affairs (1996) 41 ALD

Re Lai and Minister for Immigration and Ethnic Affairs [1987] 11 ALD 535

SECONDARY MATERIALS

Department of Immigration and Border Protection (Cth), Citizenship Policy, 1 June 2016

REASONS FOR DECISION

Chris Puplick AM, Senior Member

28 February 2019

1. Mr Ahmad Taleb (the Applicant) appeals to this Tribunal to set aside a decision of a Delegate of the Minister to refuse his application for citizenship by conferral. This decision was made on 27 March 2018.

2. The basis of this decision, made under s 24(1) of the Australian Citizenship Act 2007 (the Act) was that the Applicant did not meet the general residence requirements in s 21 (2)(c) of the Act.

3. The Applicant is a citizen of Lebanon who first arrived in Australia in March 2008 and is currently the holder of a Resident Return (Subclass 155) visa which was granted on 6 September 2016.

4. On 31 March 2017 the Applicant applied for Australian citizenship by conferral but this application was rejected by the Minister’s Delegate on 27 March 2018. The Applicant appealed that decision to this Tribunal on 27 April 2018 and the matter was heard on 19 February 2019.

5. The records show that, immediately prior to his application for citizenship, the Applicant was absent from Australia for a total of 425 days in the immediately preceding 4 year period, including 161 days in the immediately preceding 12 month period.[1]

   [1] Respondent’s Statement of Facts, Issues and Contentions, Annexure A.

6. The Applicant states that he received news that his father was seriously ill in Lebanon and as a result, made arrangements to leave Australia to be with him.[2] He applied for a Return Resident visa on 3 July 2015 and then departed Australia on 10 July 2015. At the time he was holding a return ticket departing from Beirut back to Sydney on 21 September 2015.[3]

   [2] Applicant’s Tender Bundle at [107].

   [3] Section 37 Tribunal Documents at [48].

7. The Applicant’s Return visa was granted on 6 September 2016, that is to say some 14 months after it had been applied for. The Applicant returned to Australia on 8 September 2016.

8. This means that the Applicant was absent from Australia between 10 July 2015 and 8 September 2016.

9. The facts as outlined above are not contested by either party.

10. The Applicant contends that it was the delay by the Department in issuing his visa which caused him to be absent from Australia for a prolonged period of time and it was this enforced absence which resulted in his failing the residency requirements. The Applicant then asserts that this failure constitutes an “administrative error” on the part of the Department and hence enlivens a Ministerial discretion (s 22(5) of the Act) to, in effect, waive the residency requirements and treat the applicant as if he had been resident in Australia throughout the relevant period.

11. The Minister rejects this suggestion and relies upon a statement in the Citizenship Policy to the effect that “a delay in processing an application does not constitute an administrative error in itself.”[4]

    [4] Citizenship Policy at page [27].

    RELEVANT LEGISLATION

12. It is necessary to set out briefly the sections of the Act which the Tribunal must take into account.

    AUSTRALIAN CITIZENSHIP ACT 2007 – SECT 21

    Application and eligibility for citizenship

    (1)  A person may make an application to the Minister to become an Australian citizen.

    General eligibility

    (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…

    AUSTRALIAN CITIZENSHIP ACT 2007 – SECT 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.

    (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.

    THE APPLICANT’S CASE

13. The Applicant frames his case in the following terms:

    1.He is, in all respects, a person of good character who has been resident in Australia for eight years. He has an Australian wife and children. He has no criminal or other adverse record.

    2.He concedes that during the four years prior to his making his citizenship application he was not present in Australia.

    3.He concedes that in the 12 months immediately prior to his application for citizenship he was not resident in Australia but this was because he was unable to secure a return visa once he had arrived in Lebanon in July 2015.

    4.The reason that he was not able to secure a visa was that the Australian authorities failed to consider his application in a timely fashion and that their delay alone, occasioned his failure to meet this requirement. He says this delay amounts to “administrative error” on their part.

    5.He then says that it follows from this administrative error that the Minister should use the discretion which he has (section 22(5)) to ignore his absence from Australia – treat him as if he had been a resident – and grant his citizenship application accordingly.

    THE RESPONDENT’S CASE

14. The Respondent frames their case on two simple assertions:

    1.The Applicant was not present in Australia in the four years proceeding his application, hence fails the test required in s 22(1)(a) of the Act; and

    2.even if there were administrative error on the part of the Department in terms of processing the visa application, the discretionary provisions of s 22(5) cannot be enlivened in a way which assist the Applicant.

15. It should be restated that the Respondent denies that there was any administrative error on the part of the Department, both as an objective fact and moreover even if there were delays occasioned by the Department, the terms of the Citizenship Policy exclude those from being considered as, in any way, any form of administrative error.

16. Administrative error may arise where there is an actual failure of process or improper departure from administrative procedures or requirements,[5] but mere delay cannot be so viewed in relation to visa applications.[6]

    [5] Re Lai and Minister for Immigration and Ethnic Affairs [1987] 11 ALD 535 at [540].

    [6] Re Ji Xian Liu and Others and Department for Immigration and Ethnic Affairs (1996) 41 ALD 589 at [27].

    CONSIDERATIONS

17. The Tribunal does not feel it necessary to undertake a lengthy analysis of the issues raised, because the concession by the Applicant that he fails to meet the requirements of section 22(1)(a) of the Act must – without anything else – be considered fatal to his application.

18. He simply was not resident as required in the four year period and the special residency or defence services requirements which qualify this test are not applicable.

19. For the sake of completeness however the Tribunal notes that it accepts the submission of the Respondent in relation to the operations of section 22(5) of the Act.

20. That section provides remedy or relief only where the applicant was physically present in Australia but was not considered to be a permanent resident in during the relevant time. The relief goes to the question of a person’s status as a permanent resident and does not provide any discretion to ignore a lack of physical presence in the country.

21. It follows that the Tribunal does not need to discuss what may or may not constitute “administrative error”, which, as the authorities themselves suggest are both impossible to define with precision so that they cover every case[7]; nor comprehensive or exhaustive according to the examples set out in the Citizenship Policy[8].

    [7] Dranichnikov and Another v Centrelink and Another (2003) 75 ALD 134 at [62].

    [8] Re Ji Xian Liu and Others and Department for Immigration and Ethnic Affairs [1996] 41 ALD 589 at [26].

22. The Tribunal will not undertake further discussion of the status of the Citizenship Policy’s claim that, it can simply pronounce a self-granted absolution for any sins of omission or commission in the handling of visa applications and then expect the Tribunal to meekly yield itself to an uncritical subjugation to such a diktat. In the current circumstances such an exposition is unnecessary.

23. While the Applicant was, through his counsel, highly critical of the delays on the part of the Department, and it does seem that there was some significant delay in the processing of his visa application given his previous visa status and known record in Australia, the Tribunal also appreciates that Australia’s overseas posts have to operate under great pressure and that their responsibility to ensure the safety of the nation in terms of their decision-making is a paramount and onerous consideration.

24. Grants of citizenship by conferral require qualification in accordance with the legislation and, in this instance, that qualification is not forthcoming on the part of the Applicant.

25. It is unfortunate that there were lengthy delays, but, even if there had not been, this would not have cured the defect in the application for its failure to meet the requirements set out clearly in the Act.

26. A decision to affirm the decision under review does not in any way preclude the Applicant from making a fresh application for grant of citizenship. Any such application would be assessed on the basis of his qualifications set out against the legislative requirements.[9]

    [9] Fenn v Minister for Immigration and Multicultural Affairs [2000] AATA 931 at [8].

    DECISION

27. The decision under review is affirmed.

I certify that the preceding 27 (twenty -seven) paragraphs are a true copy of the reasons for the decision herein of Chris Puplick AM, Senior Member

.............................[sgd]...........................................

Associate

Dated: 28 February 2019

Date(s) of hearing:	19 February 2019
Advocate for the Applicant:	Mr O Jamal, Omar Interpreting Centre
Solicitors for the Respondent:	Ms K Dunlop, Sparke Helmore Lawyers