Wang and Minister for Immigration and Border Protection (Citizenship)
[2017] AATA 730
•25 May 2017
Wang and Minister for Immigration and Border Protection (Citizenship) [2017] AATA 730 (25 May 2017)
Division:GENERAL DIVISION
File Number(s): 2016/3955
Re:Yaping Wang
APPLICANT
AndMinister for Immigration and Border Protection
RESPONDENT
DECISION
Tribunal:Mr S. Webb, Member
Date:25 May 2017
Place:Canberra
The decision under review is set aside. Ms Wang satisfies the general residence requirement. The matter is remitted to the Minister to determine whether Ms Wang meets all other requirements for conferral of Australian citizenship.
............................[sgd]............................................
Mr S. Webb, Member
CITIZENSHIP – application for conferral of Australian citizenship – general residence requirement – cancellation of temporary visa held by primary visa-holder – automatic cancellation of visas held by dependants and spouse in family unit – date and time visa cancellation has effect – meaning of ‘at any time’ and ‘immediately after’ – unlawful non-citizen present in Australia for less than one day – administrative errors – decision set aside
Australian Citizenship Act 2007, s 3, 21, 22, 24, 46
Migration Act 1958, s 14, 15, 116, 118A, 128, 138, 140
Migration Amendment Act 2014Migration Regulations 1994, r 2.21B, 2.43
Semungus v Minister for Immigration and Multicultural Affairs [1999] FCA 244
Tien & Ors v Minister for Immigration (1998) 80 FCR 89
REASONS FOR DECISION
Mr S. Webb, Member
25 May 2017
Yaping Wang applied for Australian citizenship by conferral. A delegate of the Minister refused her application. Ms Wang applied for review.
At the hearing of the application I granted time for additional materials and written submissions to be brought forward. I have carefully considered the additional materials filed by both parties.
Facts
On 10 October 2011, Ms Wang was granted a sub-class UC-457 Temporary Work (Skilled) visa.[1] Grant of this visa was made on the basis of an application by her then husband, Mr Harris, which included Ms Wang as spouse and their two children (the children).[2]
[1] T6 folio 111.
[2] ST1.
On 23 December 2011, Ms Wang and the children arrived in Perth.[3]
[3] T5 folio 109.
On 29 December 2011, Mr Harris informed the Department of Immigration and Border Protection (the Department) that he and Ms Wang had separated and were no longer living together.
Ms Wang says that, on 28 February 2012, an officer of the Department informed her that Mr Harris had applied for cancellation of her visa and the children’s visas. She maintains that she provided a formal response and a decision was then made not to cancel the visas.
On 19 March 2012, Ms Wang confirmed the continuing nature of the separation.
On 9 October 2012, the Department wrote to Ms Wang, informing her that her 457 visa may be cancelled.[4] Ms Wang says that she responded to this notice on 16 October 2012 and, once again, the Department decided not to cancel her visa and the children’s visas.
[4] ST5.
Mr Harris ceased employment in Australia and he departed from Australia on or about 3 March 2014.[5] On 5 March 2014 he requested cancellation of his 457 visa.[6] In so doing he stated that “If the termination of my visa were to render [the children] unlawful i would obviously be willing to wait until [a bridging visa] determination had been made”.
[5] ST6 folio 136.
[6] ST7 folios 144-145.
On 31 March 2014, a delegate of the Minister decided “to cancel Mr Harris’s subclass 457 Temporary Work (Skilled) visa”.[7]
[7] ST7 folio 146.
At 2.08pm on the same day, notice of the cancellation decision was sent to Ms Wang, through her migration agent, Ms Olga Ramasamy.[8] This notice states that Ms Wang’s 457 Temporary Work (Skilled) visa was cancelled on 31 March 2014 under s 140(1) of the Migration Act 1958 (the Migration Act).
[8] ST8.
Ms Wang says that –
“11. On 31 March 2014, 9am at the Children’s Court, Mr. Harris informed his Honour Magistrate Hogan that he applied to cancel the children’s visa and my visa again. His honour adjourned the trial and asked me to go to the Immigration department to apply for other visas for the Children and I.
12. I called immigration immediately, and being arrange to see the Complete Unit office Sara at 1pm.
13. Ms. Olga prepared Bridging visa for me immediately. I brought the bridging visa to the officer Sara upon our appointment.
14. On 31 March 2014, 1pm. The officer Sara appreciate I come to see her to discuss my visa issue and grant me another 7 days for me to prepare Partner Visa application to be filled.
15. On 31 March 2014, Sara stated, based on the evidence that I arranged to see her and filled bringing visa to her in person, that she granted the birding visa to me and my children in person, and she will prepare a grant letter to me in 5 days so that I and my children will not be “illegal stay” in Australia.”[9]
[9] Exhibit A.
At 10.38am on 31 March 2014, Ms Wang sought assistance from ‘Rosemary and Gerard’ with a Bridging visa E application form 1008 she had filled out.[10] Revisions were made and the document was provided to the Department.[11]
[10] Exhibit B.
[11] ST9.
Ms Wang signed the Bridging visa E form 1008 on 31 March 2014.[12] It has been stamped “RECEIVED” by a Departmental officer on 1 April 2014.[13]
[12] ST9 folio 155.
[13] ST9 folio 151.
No Departmental records have been adduced in respect of the communications and meeting Ms Wang alleges took place at 1.00pm on 31 March 2014 in the Department’s Perth office.
Notice of grant of a Bridging visa E for Ms Wang was sent at 7.28pm on 1 April 2014 by “Sara”, a Departmental officer. This document contains the following information –
“As per our conversation at the Department of Immigration and Border Protection (DIBP) Perth Office this morning I have granted you a Bridging Visa E (BE) for one week on the grounds that you intend to apply for a substantive visa.”[14]
[14] ST10 folio 157.
The Record and notice of decision Bridging visa E – subclass 050 Form 1211 records that –
“Client’s UC-457 visa was cancelled under s 140 on 31/03/2014
Client voluntarily approached compliance counter on 1/04/14
Client intends to apply for a substantive visa.
…
…the client presented at the counter one day after visa cancellation and requires time to explore her options.”[15]
[15] ST10 folio 159.
Ms Wang says that she completed a Partner visa application and, on 8 April 2014, personally gave it to ‘Sara’ at the Department’s Perth office, whereupon ‘Sara’ granted her a further Bridging visa. This is consistent with Departmental records included in the subsequent notice of grant.[16]
[16] T4 folio 91.
On 23 February 2015, Ms Wang was granted a Partner (Residence) (class BS) (subclass 801) visa.[17]
[17] Ibid.
On 23 February 2016, Ms Wang signed an application for Australian citizenship.[18] The identity declaration part of this form was signed on 11 March 2016.[19] The application bears two Departmental date stamps: one for 6 April 2016 and the other for 12 April 2016.[20]
[18] T5 folio 103.
[19] T5 folio 99.
[20] T5 folio 92.
Considering s 46 of the Australian Citizenship Act 2007 (Citizenship Act), the application is taken to be made when it is received by the Department on behalf of the Minister and the prescribed fee is paid. In this case, that date is likely to be 12 April 2016. It appears that Ms Wang omitted to provide her credit card details in the form she lodged on 6 April 2016, and this information was provided under cover of her letter on 11 April 2016.[21] This would serve to explain the 12 April 2016 Departmental date stamp.
[21] T4 folio 86.
On 11 July 2016, a delegate of the Minister decided to refuse Ms Wang’s application for conferral of Australian citizenship.[22] The reason given for this is said to be that Ms Wang did not meet the general residence requirement under s 21(2)(c) of the Citizenship Act because –
“Our records indicate that you had an unlawful period for 3 days from 11 April – 14 April 2014 and therefore your 4 years lawful commenced from 14 April 2014.”[23]
[22] T2.
[23] T2 folio 20.
On 28 July 2016, Ms Wang applied for review of this decision.[24]
[24] T1.
Issues
Ms Wang’s application for conferral of Australian citizenship is to be decided under s 24 of the Citizenship Act. This section provides that the Minister, or on review the Tribunal, must refuse an application for conferral of Australian citizenship if the person is not eligible under s 21(2) to (8).
In order to be eligible, Ms Wang must satisfy the residence requirements set out in s 21(2)(c) when the application for conferral of Australian citizenship is made. In the circumstances of Ms Wang’s case, the general residence requirement set out in s 22 applies –
(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.
As can be seen, Ms Wang must not have been present in Australia as an unlawful non-citizen at any time during the four years immediately before applying for Australian citizenship. If she does not meet this requirement, s 22(4A) confers discretion on the Minister to grant relief in certain circumstances –
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.
Other discretions conferred under s 22 are not presently applicable.
The Minister asserts that Ms Wang does not meet the general residence requirement as she was present in Australia as an unlawful non-citizen for a short period of less than one day in 2014. This occurrence, so the argument goes, was not due to an administrative error and, for this reason, discretionary relief is not available.
Ms Wang argues that this is not correct. In her submission, she was not present in Australia as an unlawful non-citizen at any time in the four years before applying for Australian citizenship. She asserts that she held visas which rendered her presence in Australia lawful at all times during this period. Furthermore, she maintains that the Minister’s delegate should have notified her of the intention to cancel her visa and the visa’s held by the children, as had occurred previously. Failure to do so, she argues, is an administrative error that renders it appropriate to exercise discretion in her favour.
It is necessary to closely examine the facts.
Four key findings can be made. Firstly, Ms Wang was not given notice of the Minister’s intention to cancel her visa. Secondly, the 457 visa she held was by reason of being a member of the family unit of Mr Harris. This is so even though their marriage had broken down. Thirdly, on 31 March 2014, the Minister’s delegate exercised discretion under s 128 of the Migration Act to cancel Mr Harris’ 457 visa and, consequentially, Ms Wang’s 457 visa was cancelled under s 140(1). And fourthly, at the earliest, by her own account, Ms Wang applied for and may have been granted a Bridging visa E at 1.00pm on 31 March 2014.
On the facts, there are two questions to answer: did Ms Wang become an unlawful non-citizen when her 457 visa was automatically cancelled, and if so, was that eventuality the result of an administrative error, such that discretion should be exercised to provide relief?
Did Ms Wang become an unlawful non-citizen?
It is quite clear that Ms Wang’s visa was cancelled by operation of s 140(1) of the Migration Act when the decision to cancel Mr Harris’ 457 visa was made –
(1) If a person’s visa is cancelled under section … or 128…, … a visa held by another person because of being a member of the family unit of the person is also cancelled.
Ms Wang would have become an unlawful non-citizen as defined by s 14 ‘unless, immediately after the cancellation, the former holder holds another visa that is in effect’: s 15.
Under s 82(1), Ms Wang’s 457 visa ceased to have effect “on cancellation”. These words are given no special meaning and can readily be understood to refer to the time and date when the visa was cancelled. Under s 138(1) as it stood on 31 March 2014, a visa is cancelled ‘by the Minister causing a record of it to be made’. This mechanism for determining when a person’s visa had been cancelled also applied to the grant of a visa – see s 67. By operation of the Migration Amendment Act 2014 (the Amendment Act), these sections were repealed and new sections 67 and 138 came into effect on 28 May 2014, introducing a new requirement the record must specify the date and time of its making. The clear purpose of these amendments was to remove doubt about when a decision to grant or cancel a visa was made.
The specification of time is an important element in the statutory procedure for cancellation of a person’s visa. It is no trivial matter. The significance can clearly be seen in the case of Ms Wang and her two children who were present in Australia at the time Mr Harris’ visa was cancelled at his request, having departed from Australia. The automatic cancellation of Ms Wang’s visa without notice rendered her an unlawful non-citizen who was then liable to be detained and removed from Australia. The time at which this state of affairs commenced was highly significant for her. It was also an important fact for those charged with enforcing compliance with migration decisions and laws.
This is a significant matter presently as it is necessary to determine with some precision when Ms Wang’s 457 visa is taken to have been cancelled for the purposes of s 82(1) and s 140(1).
The record made of the decision to cancel Mr Harris’ 457 visa provides the following information –
Notification of Cancellation under Section 128 of the Migration Act 1958
…
Sent via email: …
SENT BY E-MAIL
Dear Mr Harris
I wish to advise you that your subclass 457 Temporary Work (Skilled) visa granted on 10 October 2011 (‘the visa’) was cancelled on 31 March 2014 under section 128 on the basis of paragraph 116(1)(g) of the Migration Act 1958 (‘the Act’) and Regulation 2.43(1)(g) because you have requested in writing that the visa be cancelled.
The Act gives you the opportunity to show why you think the ground for cancellation does not exist, and/or give reasons why your visa should not have been cancelled.
…
The timeframe in which you must respond to this notice is 28 calendar days, beginning when you are taken to have received this notice…
As this letter was sent to you by email you are taken to have received this letter at the end of the day it was transmitted.
…”[25]
[25] ST7 folio 140.
The notice of the cancellation decision does not state the time the record of decision was made.
Nevertheless, the decision to cancel Mr Harris’ 457 visa is taken to have been made when the Minister’s delegate created a ‘record’ of it. This could be in the form of a notation on a departmental file, or in the Department’s computer system, or in the form of written communication of the decision made.[26]
[26] Semungus v Minister for Immigration and Multicultural Affairs [1999] FCA 422 at [20].
As can be seen, notice of the decision was sent to Mr Harris by email. The covering email from the Minister’s delegate is in evidence.[27] This document contains the following relevant information –
“On 31 March 2014, at 11.54, “[the Minister’s delegate]” wrote:
UNCLASSIFIED
Dear Mr Harris
I am writing to inform you that your subclass 457 Temporary Work (Skilled) visa granted on 10 October 2011 has today been cancelled.
Please see attached formal notification of cancellation and decision record explaining the reasons for the cancellation.
…”[28]
[27] ST3.
[28] Ibid, folio 126.
As can be seen, this email was purportedly sent at “11.54”. Additional materials and submissions were filed after the hearing. These documents reveal that the email to Mr Harris was actually sent at 3.55pm on 31 March 2014, well after the cancellation decision was first recorded in a Portable Document Format at 11.19.30am that day. The Minister argues that this time should be adopted as the time when the decision to cancel Mr Harris’ visa was made and came into effect. I agree.
From this it follows, under s 82(1), that Ms Wang’s 457 visa ceased to have effect as of 11.19.30am on 31 March 2014. At that time, her presence in Australia as a non-citizen became unlawful ‘unless, immediately after the cancellation, the former holder holds another visa that is in effect’: s 15.
The words ‘immediately after’ have no special meaning and they can readily be understood – the word ‘immediately’ means “1. without lapse of time, or without delay; instantly; at once”.[29]
[29] Macquarie Dictionary, Online Edition, 2017.
Ms Wang asserts that she was granted a Bridging visa E at or about 1.00pm on 31 March 2014. This is disputed by the Minister. But even if Ms Wang’s assertion is accepted, she did not hold a valid visa when her 457 visa was cancelled as of 11.19am on 31 March 2014. And the Bridging visa E was not granted immediately after the cancellation. This notwithstanding, it is conceivable that the grant of a visa to Ms Wang at 1.00pm might be considered to be immediately after the cancellation of Mr Harris’ visa at 11.19am on the same day, where the grant closely follows the cancellation, without delay. If that is correct, Ms Wang might would succeed if her assertion of being granted a Bridging visa E is accepted.
But I do not accept that proposition for the simple reason that it is not supported by evidence from the Departmental records. Had a visa been granted, there should be some record of it in the relevant Departmental records.
In Ms Wang’s submission, in court proceedings at or about 9.30am on 31 March 2014, she was informed that Mr Harris had requested cancellation of his visa and consequentially the secondary visas held by Ms Wang and the children. Her uncontested evidence, which I accept, is that Magistrate Hogan adjourned the proceeding so that she could address any resulting visa issues with the Department. Ms Wang told me that she immediately rang the Department in order to urgently apply for another visa in order to avoid becoming unlawful. She explained that the Departmental officer she spoke to, ‘Sara’, told her that the earliest available appointment time was at 1.00pm that afternoon.
Ms Wang attended the Department’s Perth 3rd floor office shortly before 1.00pm with a support person. Soon thereafter, they met with ‘Sara’. Ms Wang’s evidence is that she discussed a number of visa applications with ‘Sara’, namely a partner visa, a protection visa, a humanitarian visa and a bridging visa in respect of herself and the children[30]. She asserts that ‘Sara’ told her the bridging visa application should not include the children and the form should be amended. Ms Wang also asserts that ‘Sara’ told her that she was not unlawful and that she would grant a bridging visa forthwith, allowing seven days in which Ms Wang could complete a substantive Partner visa application.
[30] Exhibit B.
Ms Wang says she amended the Bridging visa E application form 1008, as requested, and returned with it the next day, handing it personally to ‘Sara’ on 1 April 2014.[31] By her account, ‘Sara’ received the 1008 form and certified Ms Wang’s passport. Ms Wang says that at no point during these interactions did ‘Sara’ suggest that her 457 visa had been cancelled or that she was an unlawful non-citizen in Australia.
[31] T
The Departmental records show that Ms Wang was granted a Bridging visa E from 1 April 2014.
At 2.08pm on 31 March 2014, the Minister’s delegate sent an email to Ms Wang’s agent notifying her that Ms Wang’s 457 visa had been cancelled under s 140 –
“Notification of the consequential cancellation of the 457 visa of Ms WANG, YANPING…
… Mon, Mar 31, 2014 at 2.08PM
UNOFFICIAL
Dear Ms Ramasamy
As the registered migration agent authorised to act on behalf of and receive correspondence on behalf of Ms Wang in relation to this matter, please find attached a formal notification of the automatic consequential cancellation of Ms Wang and her two children’s secondary 457 visas.
…”[32]
[32] ST8 folio 148.
The notice attached to this email sets out the following relevant information for present purposes –
“…
Sent via E-MAIL
Dear Ms Wang
I wish to advise that your subclass 457 Temporary Work (Skilled) visa granted on 10 October 2011 was cancelled on 31 March 2014 under Subsection 140(1) of the Migration Act 1958 (‘the Act’).
…
Mr … Harris’ visa was cancelled on 31 March 2014. As yourself and your two children … were granted your secondary 457 visas because of being members of the family unit of Mr Harris, your visas were consequentially cancelled by operation of law on that date. You should forward your passports to this office so that your visa evidence can be stamped inoperative. Relevant agencies have been advised that your visas have been cancelled.
As you no longer hold a visa, you are an unlawful non-citizen and are liable to be detained and removed from Australia. You may be eligible to be granted a bridging visa to provide you with lawful status until you depart Australia…
…
31 March 2014”[33]
[33] ST8 folio 150.
Even though it may appear to be somewhat pedantic, the unavoidable conclusion is that there was a gap from 11.19am on 31 March 2014 to, at the minimum 1.00pm that day, or at the maximum until 10.00 on 1 April 2014, during which Ms Wang did not hold a valid visa. During this short period, she was an unlawful non-citizen present in Australia.
Was Ms Wang’s unlawful status the result of administrative error, such that discretion should be exercised to provide relief?
Ms Wang asserts that she should have been notified of the Minister’s intention to cancel her visa and the visas of the children, and the failure to give her an opportunity to respond was an administrative error. She says that it was fair and reasonable under the rules of natural justice for her and the children to be given an opportunity to be heard before their visas were cancelled.
She maintains that the Department had been notified and was well aware of her circumstances, having notified the Department of her separation from Mr Harris and having notified the Department of family violence. In these circumstances, the failure of the Department to notify her that Mr Harris had sought cancellation of his visa, and consequentially cancellation of her visa and the visas of the children, was an administrative error. Furthermore, it was an error not to provide her with an opportunity to address such a significant conditional change in her visa status, when that same opportunity had been provided for the children.
Ms Wang argues that the Minister’s delegate did not properly consider the best interests of the children, or the serious consequential adverse effects on her, when making the decision to cancel Mr Harris’ visa, especially as she had not been given notice and an opportunity to adjust her affairs. In her submission, the delegate was bound to consider such matters when exercising the discretion conferred by s 128. The failure to do so, or to do so sufficiently, is an administrative error sufficient to enliven the discretion under s 22(4A) of the Citizenship Act.
Additionally, Ms Wang contends that the Department made a series of administrative errors on 31 March 2014, which caused her to become unlawful. Firstly, she says that she was unable to make an application before 1.00pm on 31 March 2014, because that was the earliest time Sara was available – Sara’s failure to respond appropriately to the urgency of the situation Ms Wang was facing was an administrative error. Secondly, Ms Wang asserts that Sara told her that she was not unlawful when they met at 1.00pm. The failure of Departmental officers to communicate with each other about Ms Wang’s visa status following her telephone call at or about 9.40am on 31 March 2014, before Mr Harris’ visa was cancelled, was an administrative error.
The Minister disagrees and argues that no administrative error occurred to render Ms Wang’s presence in Australia as a non-citizen unlawful.
Notice
As Ms Wang’s 457 visa was cancelled by operation of s 140(1) of the Migration Act, the procedures set out in ss 118A to 127 of that Act do not apply in her case – those provisions only arise in circumstances where the Minister or his delegate is considering exercising discretion to cancel a visa; s 140 operates automatically, in a self-executing way, on cancellation of Mr Harris’ visa.[34] From this it follows that the notice provision in s 119 does not apply.
[34] Tien & Ors v Minister for Immigration (1998) 80 FCR 89 at 96.
Furthermore, as Mr Harris was outside Australia when his 457 visa was cancelled under s 128 of the Migration Act, the provisions of Subdivision F in Division 3 apply. The only requirement for notice is for notice of a cancellation decision to be given under s 129 –
(1) If the Minister cancels a visa under section 128, he or she must give the former holder of the visa a notice:
(a) stating the ground on which it was cancelled; and
(b) giving particulars of that ground and of the information (not being non‑disclosable information) because of which the ground was considered to exist; and
(c) inviting the former holder to show, within a specified time, being a prescribed time, that:
(i) that ground does not exist; or
(ii) there is a reason why the visa should not have been cancelled; and
(d) stating that, if the former holder shows, within the specified time, that the ground does not exist, the cancellation will be revoked; and
(e) stating that, if the former holder shows that there is a reason why the visa should not have been cancelled, the cancellation might be revoked.
(2) The notice is to be given in the prescribed way.
(3) Failure to give notification of a decision does not affect the validity of the decision.
Plainly enough, this does not apply where a visa has been cancelled under s 140(1). In the present circumstances, the s 129 notice provision applied only to Mr Harris.
This notwithstanding, the Department was aware of Ms Wang’s circumstances. Mr Harris had previously sought to have Ms Wang’s visa cancelled on at least two occasions and decisions (which are not in evidence) had been taken not to cancel her 457 visa under s 116(1). The difficult domestic circumstances she was in, including allegations of domestic violence, removal of the children into care and (then) ongoing litigation in respect of the children, were known to the Department and the Minister’s delegate who cancelled Mr Harris’ visa was aware of them. Furthermore, on Ms Wang’s evidence, she explained these circumstances and the urgency of her situation to ‘Sara’, the Departmental officer with whom she made contact at or about 9.40am on 31 March 2014.
While it may reasonably be expected in the particular circumstances that Ms Wang should have been given notice of Mr Harris’ request to have his visa and consequently Ms Wang’s visa cancelled, there was no statutory obligation to do so.
Best interests
There are two considerations. Firstly, the delegate was required to satisfy himself that the discretion conferred by s 128 of the Migration Act to cancel Mr Harris’ 457 visa was enlivened in the particular circumstances. This would be so if the three preconditions set out in s 128(a) and (b) were satisfied. Secondly, if so, the delegate was required to have regard to all relevant factors when deciding whether to exercise the discretion in the particular circumstances.
It is not for me to review the delegate’s decision. The Tribunal has no jurisdiction to do so. Nonetheless, I make the following observations.
The Minister’s delegate provided a statement of reasons for his decision to cancel Mr Harris’ 457 visa.[35] In order to be satisfied of the precondition set out in s 128(a)(i), the delegate was required to be consider grounds for cancellation of the visa under s 116. He did so, identifying grounds prescribed under s 116(1)(g) and set out in reg 2.43(1)(g) and (h) of the Migration Regulations 1994 (the Regulations). I note in passing that reg 2.43(1)(h) applies for the purposes of s 116(1)(g) in respect of grounds to cancel the visa of a person who is under 18. To what extent, if at all, this applies in respect of a decision to cancel a visa under s 128 when doing so would result in automatic cancellation of the children’s visas under s 140(1) is a matter I do not need to decide for present purposes.
[35] ST7 folio 143-147.
The delegate set out Mr Harris’ correspondence of 5 March 2014. In respect of the children, Mr Harris said –
“… I am aware DCP are in the process of making an application for what I assume will be a bridging visa for [the children].
If the termination of my visa were to render them unlawful i would obviously be willing to wait until that determination had been made…”[36]
[36] ST7 folio 144.
He provided further information about proceedings in the Perth Children’s Court and the Family Court of Australia in response to the delegate’s request –
“Can you please provide a copy of the court letters that state when the next court dates are relating to the custody of your children and the financial matters between yourself and Ms Wang…”[37]
[37] ST7 folio 146.
In respect of the precondition set out in s 128(a)(ii), the Minister’s delegate said this in reference to Ms Wang and the children –
“I am satisfied that it is appropriate to cancel the visa in accordance with subdivision F of the Act because:
…
According to departmental records there are three people who hold secondary 457 visas that had been granted to them on the basis of being members of the family unit of Mr Harris… I note that if I decide to cancel Mr Harris’ visa, then as a result their secondary 457 visas will be automatically consequentially cancelled by operation of law under section 140 of the Act. I have carefully considered the current circumstances of these three people, particularly the best interests of the children, and am satisfied that there is not a compelling reason why they need to retain their secondary 457 visas that would outweigh the grounds/reasons for cancelling Mr Harris’ 457 visa … and hence justify a decision to not cancel Mr Harris’ visa.”
In respect of the precondition set out in s 128(b), the delegate found that Mr Harris was outside Australia.
The delegate then decided to cancel Mr Harris’ visa.
Clearly enough, the delegate considered Ms Wang’s circumstances and the best interests of the children on the information Mr Harris provided. Even though the delegate did not squarely address the issue Mr Harris raised in respect of the children becoming unlawful, this was clearly a live issue. It is perhaps a matter about which reasonable minds may differ. The delegate’s decision was not challenged.
I simply observe that it is not appropriate now, for the purposes of these proceedings, to attack the delegate’s decision. While a different decision-maker might have reached a different conclusion when considering Ms Wang’s circumstances and the best interests of the children on the same materials, this, itself, does not give rise to an ‘administrative error’. If there was an error relating to natural justice, fairness or a proper application of legal tests when considering her circumstances and the best interests of the children, an error of that kind would have a legal rather than an administrative character.
Failure to respond
The administrative errors Ms Wang alleges ‘Sara’ made on 31 March 2014 relate to delay in providing a time when Ms Wang could apply for a Bridging visa and providing incorrect information about Ms Wang’s visa status.
The Minister argues that neither of these alleged errors occurred.
In respect of delay, the Minister says that a visa holder cannot expect to obtain an appointment without due notice and obtaining an appointment at short notice, as occurred in Ms Wang’s case is not an administrative error.
There may be cases in which urgency demands immediate attention and action on the part of the Department. It appears that the Departmental officer ‘Sara’ responded to the urgency of Ms Wang’s request at or about 9.40am on 31 March 2014 by arranging an appointment at the earliest available time on that day. This, to my mind, is not an administrative error.
But there are other considerations. ‘Sara’ was not the officer who made the decision to cancel Mr Harris’ visa. That decision was not formalised with a ‘record’ until 11.19am. It is not presently established, but it may be inferred, that Ms Wang’s visa was not recorded as cancelled when she first contacted the Department and spoke with ‘Sara’ at or about 9.40am on 31 March 2014. The matters discussed and the information provided during that telephone conversation are not entirely clear – Ms Wang’s account is not challenged, however, and I accept it.
On Ms Wang’s account, ‘Sara’ did not inform her that she should immediately attend the Department’s office to lodge a Bridging visa application. The evidence does not establish that ‘Sara’ investigated whether Ms Wang’s visa had been cancelled at that time, or whether a decision to cancel Mr Harris’ visa was pending – although it clearly was. Furthermore, it is not established that ‘Sara’ made any record of her conversation with Ms Wang that morning (or when meeting her at 1.00pm that afternoon), or that she placed such a record on Ms Wang’s file. Nor is it established that she alerted the Minister’s delegate who was dealing with Mr Harris’ visa cancellation request of Ms Wang’s contact with the Department at 9.40am and the urgency of information Ms Wang conveyed, having been alerted to Mr Harris’ visa cancellation request moments earlier in Court. Without pre-empting the result, these matters would have been relevant for the Minister’s delegate to take into account when considering whether or not to exercise discretion to cancel Mr Harris’ visa.
To my mind, failing to properly record Ms Wang’s contact with the Department and her stated intention to make an urgent application for a Bridging, Partner or Humanitarian visa to avoid becoming unlawful is an administrative error. So, too, is the failure to inform the Minister’s delegate dealing with Mr Harris’ visa cancellation request of Ms Wang’s circumstances that morning and the arrangement she made with ‘Sara’ to make an urgent visa application, having just been informed in Court of Mr Harris’ visa cancellation request. Furthermore, the failure to make a record of the meeting that took place at 1.00pm in the Department’s offices with Ms Wang and of her attempt to lodge a Bridging visa E application, albeit incorrectly completed and requiring changes to become valid (which could have been made immediately had correct information been provided), was also an administrative error.
Had these errors not have occurred, it is possible that Ms Wang’s presence in Australia between 11.19am and 1.00pm on 31 March 2014, or until 10.00am on 1 April 2014, would not have become unlawful. If ‘Sara’ had made a record of her conversation with Ms Wang at 9.40am and alerted the Minister’s delegate dealing with Mr Harris’ visa cancellation request, the delegate could have taken those matters into account when deciding whether or not to exercise the discretion to cancel Mr Harris’ visa. At the minimum, the delegate could have taken these matters into account when deciding when to make a record formalising cancellation of Mr Harris’ visa. Had the delegate known, he could have decided to hold over cancelling Mr Harris’ visa until after Ms Wang attended the Department’s office to lodge a Bridging visa application at 1.00pm that day, a delay of little more than one hour, or until 10.00am on 1 April 2014, a delay of less than one day. But the delegate was not made aware of Ms Wang’s urgent request and her circumstances that morning.
Had ‘Sara’ informed Ms Wang that the only change to the Bridging visa E application form was deletion of her children’s names, it would have been a matter of simplicity for their names and details to have been removed forthwith, without any delay. But Ms Wang was told to bring a validly completed application form back the next day, which she did.
The Minister points out that a Bridging visa E is only available in certain circumstances to an unlawful non-citizen. That may be so. But Ms Wang’s uncontested evidence is that she wanted to lodge one of three visa applications she had taken to the Department at 1.00pm on 31 March 2014 and discussed with ‘Sara’ – a new partner visa application; a humanitarian (family violence) visa application; and a bridging visa application. I accept Ms Wang’s uncontradicted evidence that, in the 1.00pm meeting on 31 March 2014, ‘Sara’ told her she was not unlawful. Plainly enough, albeit with the benefit of hindsight, that was incorrect. But, if ‘Sara’ thought that Ms Wang was lawfully present in Australia at that time because her visa had not yet been cancelled, the information ‘Sara’ provided in respect of the Bridging visa E form was not correct and it may have been possible to grant Ms Wang a bridging visa under reg 2.21B(2) of the Regulations forthwith.
I am satisfied that Ms Wang became an unlawful non-citizen as of 11.19am on 14 March 2014 to 10.00am 1 April 2014 as a result of these administrative errors.
That being so, the discretion conferred by s 22(4A) of the Citizenship Act is enlivened. Having regard to all of the relevant factors and circumstances to which I have referred, I am satisfied that it is appropriate to exercise the discretion to treat the short period in which Ms Wang’s presence in Australia was rendered unlawful from 11.19am on 31 March 2014 to 10.00am on 1 April 2014 as a period in which she was lawfully present in Australia.
Conclusion and decision
That being so, I am satisfied that Ms Wang satisfied the general residence requirement for the purposes of s 21(1)(c) and s 22 of the Citizenship Act.
For this reason, the decision under review is set aside, and the matter is remitted to the Minister to determine whether Ms Wang meets all other requirements for conferral of Australian citizenship.
I certify that the preceding 87 (eighty-seven) paragraphs are a true copy of the reasons for the decision herein of Mr S. Webb, Member
............................[sgd]............................................
Associate
Dated: 25 May 2017
Date(s) of hearing: 21 April 2017 Applicant: In person Advocate for the Respondent: Phoebe Richards Solicitors for the Respondent: Clayton Utz
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