Waaijer and Minister for Immigration & Citizenship

[2010] AATA 913

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2010] AATA 913

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No 2010/2262

GENERAL ADMINISTRATIVE DIVISION		)
Re		Vanita Waaijer

Applicant

And Minister for Immigration & Citizenship

Respondent

DECISION

Tribunal Ms N Bell, Senior Member  

Date29 October 2010

Date of Written Reasons       16 November 2010  

PlaceSydney

Decision The decision under review is affirmed.  

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

Ms N Bell, Senior Member

CATCHWORDS IMMIGRATION - Citizenship application - residence requirement - unlawful non-citizen – bridging visa

Administrative Appeals Tribunal Act 1975

Australian Citizenship Act 2007

REASONS FOR DECISION

Ms N Bell, Senior Member            

1. At the conclusion of the hearing of the above matter, the terms of the decision intended to be made and the reasons therefor were stated orally. A copy of the decision that was in fact made was furnished to Vanita Waaijer and the Minister. Roger Waaijer, appearing on behalf of his wife Mrs Waaijer, requested the Tribunal to furnish to Mrs Waaijer with a statement in writing of the reasons of the Tribunal for its decision pursuant to subsection 43(2A) of the Administrative Appeals Tribunal Act 1975. Accordingly, the following written reasons, based on the extempore reasons given on 29 October 2010 are provided here.

2.      

Mrs Waaijer first arrived in Australia on 12 January 1999 on a tourist visa.

Mrs Waaijer later departed Australia and made several return visits. On 3 March 2005 she returned to Australia on a subclass 475 business visa which expired on 3 March 2009. On 30 January 2009, Mrs Waaijer was granted a bridging visa pending the outcome of her application for a subclass 856 employer nominated visa. On 13 February 2009, Mrs Waaijer departed Australia for Singapore rendering a ceasing of her bridging visa. She returned to Australia on 25 February 2010. Mrs Waaijer’s subclass 856 visa was subsequently granted on 14 April 2009

3.      Mrs Waaijer seeks a review of the Minister’s decision to refuse her citizenship application. Her application for citizenship was refused on the grounds that she did not meet the residency requirement in section 22(1) of the Australian Citizenship Act 2007 as follows:

22 Residence requirement

(1) Subject to this, section, for the purposes of section 21 a person satisfies the residence requirement it:

(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.

4.      

It’s not in dispute that for innocent reasons Mrs Waaijer was present in Australia as an unlawful non-citizen for the period from 4 March 2009 to

14 April 2009.  I accept that this resulted not from any intention on her behalf but rather from a combination of timing, failure of communication, and the density of the legislative provisions for the visa and migration system in Australia generally. However, because that period of presence unsupported by a visa falls within the period of four years before the day on which she applied for citizenship, Mrs Waaijer does not meet the residence requirement in the Act.

5.      This residence requirement is an essential criterion for eligibility for citizenship. Section 22(4A) of the Act, however, provides a discretion to the Minister to ameliorate the failure of an applicant to meet the residence requirement as a result of a period of presence as an unlawful non-citizen if it that unlawfulness arose because of administrative error. I note that Mr Waaijer does not claim any administrative error, and there is no evidence of such error, and so the provision does not apply. 

6.      The remaining discretionary provisions of the Act apply to periods of permanent residence or confinement in prison or a psychiatric institution or to particular activities of benefit to Australia or to the demands of particular types of work. Unfortunately, none of these provisions are relevant to Mrs Waaijer’s circumstances.

Conclusion

7.      The decision under review is affirmed.

I certify that the 7 preceding paragraphs are a true copy of the reasons for the decision herein of Ms N Bell, Senior Member

Signed: ..........................[sgd]....................................................
  Associate

Date of Hearing  29 October 2010
Date of Decision  29 October 2010
Date of Written Reasons   16 November 2010
Representative for the Applicant         Mr Roger Waaijer
Solicitor for the Respondent                Mr William Sharpe, Clayton Utz