Wang and Minister for Immigration and Border Protection (Citizenship)

This matter concerned an application for Australian citizenship by Ms Wang, who had been granted a subclass 457 Temporary Work (Skilled) visa in October 2011. Her visa was subsequently cancelled on 31 March 2014, the same day her then-husband, Mr Harris, also had his 457 visa cancelled. Ms Wang contended that she had taken steps to secure a bridging visa and apply for a partner visa on the day of the cancellation, and that her presence in Australia remained lawful. The Minister for Immigration and Border Protection opposed the application for citizenship.

The primary legal issue before the Tribunal was whether Ms Wang met the general residence requirement for the conferral of Australian citizenship under sections 21(1)(c) and 22 of the *Citizenship Act*. This required determining the precise time at which her 457 visa was cancelled and whether her presence in Australia was rendered unlawful, even if only for a brief period, and if so, whether the discretion under section 22(4A) of the *Citizenship Act* should be exercised to treat that period as lawful.

The Tribunal found that the cancellation of Mr Harris's visa, and consequently Ms Wang's visa, took effect at 11:19:30 am on 31 March 2014, when the decision was first recorded. This meant that Ms Wang's presence in Australia became unlawful from that time until she was granted a bridging visa at approximately 10:00 am on 1 April 2014. However, the Tribunal exercised its discretion under section 22(4A) of the *Citizenship Act* to treat this short period of unlawful presence as lawful, having regard to the circumstances and Ms Wang's prompt actions to regularise her status.

Consequently, the Tribunal was satisfied that Ms Wang met the general residence requirement for citizenship. The decision under review was set aside, and the matter was remitted to the Minister to determine whether Ms Wang satisfied all other requirements for the conferral of Australian citizenship.