Wijewardhanage and Minister for Immigration and Border Protection (Citizenship)
[2018] AATA 746
•4 April 2018
Wijewardhanage and Minister for Immigration and Border Protection (Citizenship) [2018] AATA 746 (4 April 2018)
Division:GENERAL DIVISION
File Number(s): 2017/3856
Re:Dushmanthi Wijewardhanage
APPLICANT
AndMinister for Immigration and Border Protection
RESPONDENT
DECISION
Tribunal:Member Mark Hyman
Date:4 April 2018
Place:Canberra
The Tribunal affirms the decision under review.
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Member Mark Hyman
Catchwords
CITIZENSHIP – whether the applicant meets the general residence requirements – whether applicant at any time an unlawful non-citizen – whether an unlawful non-citizen because of administrative error – whether applicant’s two children meet the criteria for grant of citizenship – application of the Citizenship Policy – treatment of applications by children where parents’ application refused – application of the Convention on the Rights of the Child - reviewable decision affirmed.
Legislation
Administrative Appeals Tribunal Act 1975 s 37
Australian Citizenship Act 2007 ss 3, 21, 22, 22A, 22B, 23, 24
Migration Act 1958 ss 5, 13, 14
A New Tax System (Family Assistance) (Administration) Act 1999 s 97
United Nations Convention on the Rights of the Child (adopted 20 November 1989, entered into force 2 September 1990) Arts 3, 7, 24, 26, 28
Cases
Chaudhary and Minister for Immigration and Citizenship [2010] AATA 1006
Drake and Minister for Immigration and Ethnic Affairs (No 2) [1979] AATA 179
Dranichnikov v Centrelink [2003] FCAFC 133
Minister for Immigration v Farag [2015] FCA 646
Rana and Minister for Immigration and Border Protection (Citizenship) [2017] AATA 2167
Re Liu and the Department of Immigration and Ethnic Affairs [1996] AATA 38
Wang and Minister for Immigration and Border Protection (Citizenship) [2017] AATA 730
Secondary Materials
Citizenship Policy, Department of Home Affairs, 1 June 2016
REASONS FOR DECISION
The applicant, Ms Dushmanthi Wijewardhanage, came to Australia in January 2010 and held various different visa types over the next few years. In December 2016 she lodged an application for citizenship. A delegate of the Minister for Home Affairs (the Minister - then the Minister for Immigration and Border Protection) refused that application on 6 June 2017. The delegate also refused the accompanying applications on behalf of Ms Wijewardhanage’s two young children, Krishni Walpola and Tristan Walpola (aged about five years and three years respectively).
The delegate refused Ms Wijewardhanage’s citizenship application on the basis that she had spent a short period as an unlawful non-citizen, and therefore did not meet the residence requirements in the Australian Citizenship Act 2007 (the Citizenship Act). Her two children’s applications were refused on the grounds that although their applications met the eligibility requirements set out in the Act, they did not meet those parts of the Citizenship Policy (a guidance document made under the Citizenship Act) dealing with applications by children.
Ms Wijewardhanage applied to this tribunal for review on 29 June 2017. That application appeared to seek review only of the decision to refuse Ms Wijewardhanage’s application and not that of her children, and the matter was listed to be heard on that basis. Subsequently, when that was brought to her attention, Ms Wijewardhanage stated that she wished the scope of the review to extend to her two children’s applications. The applicant and respondent also agreed at about the same time that the matter should be decided on the papers, that is, without a hearing. The review is therefore decided on the papers and extends to Ms Wijewardhanage’s application and that made by her on behalf of her children.
Ms Wijewardhanage represented herself in this process; the Minister was represented by Ms Indi Prickett of Clayton Utz.
ISSUES
The issues before the tribunal are :
(a)whether Ms Wijewardhanage meets the residence requirements for the grant of Australian citizenship; and
(b)whether her two children, Krishni Walpola and Tristan Walpola, should be granted Australian citizenship.
THE EVIDENCE
The evidence before the tribunal comprised the documents submitted by the Department under section 37 of the Administrative Appeals Tribunal Act 1975 (the “T-documents” and supplementary T-documents); a record of the visas held by Ms Wijewardhanage at different times since her arrival in Australia (attached to the statement of facts, issues and contentions of the respondent and identified as exhibit R1); and two statements by Ms Wijewardhanage, dated 28 September 2017 (identified as exhibit A1) and 19 December 2017 (A2).
THE FACTS
The facts of this matter are not in dispute, with few exceptions. Ms Wijewardhanage is a citizen of Sri Lanka (T 104). Her visa history is set out in ex R1, and confirmed by Ms Wijewardhanage in ex A1. She was granted a temporary working visa (class UC-457, granted 13 August 2009) and arrived in Australia on 18 January 2010 (T 119 – Ms Wijewardhanage gives the date of arrival as 17 January in exhibit A2, but nothing turns on that distinction). A series of bridging visas was then granted: WA-010 from 2 December 2011; WB-020 from 6 December 2013; and successive WE-050 visas from 15 January 2014, 29 January 2014, 19 February 2014, 6 March 2014, 21 March 2014 and 4 April 2014. On 28 November 2014 a delegate of the Minister granted Ms Wijewardhanage a permanent visa (Regional Employer Nomination (Permanent) – visa class RN-187).
One of the transitions from one visa to the next occurred in January 2014. Prior to that date, as noted above, Ms Wijewardhanage held a class WB-020 visa; that visa expired on 14 January 2014 (R1). It is common ground that Ms Wijewardhanage applied for a further visa on the next day, 15 January 2014, arriving as the departmental offices opened to lodge her application. A WE class visa was granted that same day.
On 20 December 2016 Ms Wijewardhanage lodged an application for Australian citizenship (T 5) with the then Department of Immigration and Border Protection (the Department), on her own behalf and that of her children (her younger child Tristan was at that time less than six months of age). As noted above, a delegate of the Minister rejected the application, including the applications for Krishni and Tristan, on 6 June 2017 (T 2, T 3, T 4).
LEGISLATION
The legislative provisions governing this matter are set out in the Citizenship Act. Subdivision B of Division 2 of Part 2 of that Act deals with citizenship by conferral.
Subsection 21(1) provides that a person may apply to become a citizen; subsection 21(2) sets out the general eligibility requirements for an adult, including age, residence, familiarity with Australia and good character. Residence requirements include that the person is a permanent resident at the time of the application and when the Minister decides the application (paragraph 21(2)(b)), and that the person meets the general residence requirements in section 22, or the special residence requirements in sections 22A or 22B, or the defence service requirement in section 23, at the time of the application (paragraph 21(2)(c)).
Subsection 21(5) sets out the eligibility requirements for a person under 18; such a person is eligible to become a citizen if a permanent resident at the time of the application and at the time of the Minister’s decision.
Subsection 22(1) outlines the general residence requirement, which is then subject to exceptions and qualifications in the subsections that follow. It reads:
(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.
The only presently relevant qualification or exception in the following subsections is that in subsection 22(4A), which provides that the Minister may treat a person as not having been present as an unlawful non-citizen under paragraph 22(1)(b) if the person was in Australia but became an unlawful non-citizen because of an administrative error.
Section 3 of the Citizenship Act states that “unlawful non-citizen” has the same meaning as in the Migration Act 1958 (the Migration Act); subsection 13(1) of that Act defines a lawful non-citizen as a non-citizen in the migration zone who holds a visa that is in effect; and subsection 14(1) defines an unlawful non-citizen as a non-citizen in the migration zone who is not a lawful non-citizen. Section 5 defines the migration zone to include land that is part of a State or Territory.
Subsections 24(1), (2) and (3) of the Citizenship Act provide, respectively, that the Minister must approve or refuse an application made under section 21, that approval may only be granted where the person satisfies the relevant subsection or subsections of that section, and that the Minister may refuse an application even where those subsections are satisfied. The scheme so established is that a person applying for citizenship must meet the relevant criteria in section 21, but meeting the criteria is not sufficient in itself; it enlivens a broad discretion either to approve or refuse citizenship.
The Minister for Home Affairs has adopted a formal policy to guide the application of the Citizenship Act, and in particular to guide the application of the discretion to approve or refuse an application where the criteria in section 21 of the Citizenship Act are met. The Citizenship Policy (the Policy) deals with a range of matters arising under the Citizenship Act, including applications by people under the age of 18. Chapter 7 of the Policy deals with citizenship by conferral. Children who apply for citizenship in their own right must meet certain conditions (p 76); children who are covered by an application of a responsible parent are subject to different tests, but the Policy specifies that where the parent’s application is refused “the child must be assessed in their own right” (p 76).
The tribunal is not bound to apply policy adopted by administrators, but would normally do so unless the policy was inconsistent with the statute under which it was adopted, or unless the merits of the particular case demanded that the policy be departed from: Drake and Minister for Immigration and Ethnic Affairs (No 2) [1979] AATA 179 (Brennan J).
MS WIJEWARDHANAGE’S SUBMISSIONS
In her application for review and her two statements, Ms Wijewardhanage put forward the argument that:
·the lodgement of her application on 15 January 2014 at the time the office opened was the earliest that she could make that application;
·her immigration lawyer had advised her that she should lodge it on that date and that the legislation would not allow an earlier application;
·when she attempted to lodge her application on 15 January there had been a system error and the application could not be entered on the system but had been processed manually;
·despite this, the visa had been issued immediately without problem; and
·she and her husband have been working in Australia and serving the country for almost eight years and their two children, given the opportunity, will be educated here and contribute further to the country.
Those arguments are made explicitly in the two statements by Ms Wijewardhanage and are also put in outline in her original application to the tribunal. In the statement dated 19 December 2017 (ex A2) Ms Wijewardhanage also states that she visited a departmental office before 15 January 2014 and was advised to make her application for a further visa on 15 January.
I infer that the thrust of Ms Wijewardhanage’s arguments is:
·that in all the circumstances she should be regarded as having done all that was required of her with regard to the continuity of her visa status and that she therefore meets the general residence requirement in subsection 22(1) of the Citizenship Act; or
·in the alternative, that any failure to maintain continuity of visa status is the result of administrative error, and she is therefore entitled to the benefit of subsection 22(4A) and should be deemed not to have been an unlawful non-citizen at any time during the four-year qualification period.
Ms Wijewardhanage made no separate arguments regarding the visa applications she made on her children’s behalf.
THE MINISTER’S SUBMISSIONS
The Minister argued that:
·Ms Wijewardhanage’s WB-020 visa expired at midnight on 14 January 2014; until the submission of her visa application the following morning – a period of at least nine hours - she was without a visa and was therefore an unlawful non-citizen;
·her status as an unlawful non-citizen is confirmed by the change in visa status on 15 January 2014, as a WE-050 visa can only be granted to certain restricted classes of persons, and the only class that Ms Wijewardhanage fell into was that of unlawful non-citizen;
·Ms Wijewardhanage therefore fails to meet the general residence requirement under paragraph 22(1)(b) of the Citizenship Act;
·there was no administrative error by departmental staff;
·Ms Wijewardhanage is not eligible for the grant of citizenship;
·Ms Wijewardhanage’s children meet the requirements for grant of citizenship under subsection 21(5) of the Citizenship Act;
·nevertheless the discretion to refuse citizenship in subsection 24(2) of the Citizenship Act should be exercised, as the children do not meet any of the criteria specified in the Policy relating to a child applying in their own right;
·the children will not suffer severe hardship or disadvantage, as they will have access to Australian education and other services despite not having citizenship; and
·such a decision would occasion no inconsistency with the Convention on the Rights of the Child.
CONSIDERATION
It is not at issue that Ms Wijewardhanage meets the eligibility requirements for the grant of citizenship in paragraphs 21(1)(a) and (b) in that she is over 18 years of age and a permanent resident. The departmental decision-maker so decided in assessing her application; Ms Wijewardhanage’s claims against paragraphs (d) to (h) of that subsection, which deal with affinity to Australia, character, knowledge of English and the like, have not been assessed and are outside the scope of this decision. The scope of this review, so far as Ms Wijewardhanage’s application is concerned, is limited to whether she meets the general residence requirements (Ms Wijewardhanage has made no claim against the special residence or defence service requirements).
Does Ms Wijewardhanage meet the general residence requirements for the grant of citizenship?
If Ms Wijewardhanage was an unlawful non-citizen during some part of the relevant period she would not meet paragraph 22(1)(b) of the Citizenship Act and therefore would not meet the general residence requirement, unless the discretion in subsection 22(4A) is enlivened and exercised in her favour to deem her not to have been an unlawful non-citizen.
Was Ms Wijewardhanage an unlawful non-citizen at any time during the qualification period?
Paragraph 22(1)(b) specifies that to meet the general residence requirement a person must not “at any time” have been an unlawful non-citizen. The quoted phrase imposes, in normal usage, a severe test, implying that even a short period as an unlawful non-citizen status would be sufficient to exclude an applicant from eligibility. From a normal and logical perspective, when Ms Wijewardhanage presented her application for a visa on 15 January 2015, her previous visa had expired, so she no longer held a visa that was in effect; applying sections 13 and 14 of the Migration Act, she was plainly an unlawful non-citizen at that moment, and had been since midnight the previous night.
That understanding is confirmed by the case law, in which on numerous occasions the Federal Court or this tribunal has found that even a short period as an unlawful non-citizen is sufficient to trigger the exclusion: in Minister for Immigration v Farag [2015] FCA 646 the period was two days; in Rana and Minister for Immigration and Border Protection (Citizenship) [2017] AATA 2167 it was five days; in Wang and Minister for Immigration and Border Protection (Citizenship) [2017] AATA 730 it was either just under two hours or just under 23 hours, depending on which of two competing approaches was adopted. Although in some of these cases the discretion in the Act was subsequently exercised to deem the person not to have been an unlawful non-citizen, the exclusion in paragraph 22(1)(b) was nevertheless first applied.
Both on the normal and logical reading of the statute and on the approach adopted in the case law, then, Ms Wijewardhanage was an unlawful non-citizen for a period in excess of nine hours, between the expiry of her WB-020 visa at midnight on 14 January and the issue of her WE-050 visa the following morning.
The Minister’s submission made a good deal of the class of visa issued to Ms Wijewardhanage on 15 January 2014, arguing that the class of visa could only have been issued to her because she was an unlawful non-citizen. But the kind of visa issued is not itself evidence of Ms Wijewardhanage’s status; it is at best evidence that a departmental decision-maker concluded at the time that she was an unlawful non-citizen.
Was Ms Wijewardhanage an unlawful non-citizen because of administrative error?
Ms Wijewardhanage appears to have regarded the system problems when she lodged her claim on 15 January 2014 as an administrative error of the kind that might enliven the discretion in subsection 22(4A). But by the time those problems arose, she was already an unlawful non-citizen, as noted above. Those difficulties, which may have delayed the issue of a visa slightly, cannot have been the cause of her having become an unlawful non-citizen, and so cannot act to enliven the discretion.
Ms Wijewardhanage said that her immigration lawyer advised her that she would not be permitted by legislation to apply for a further visa before 15 January and that she should lodge her application on that date. That advice was plainly wrong; the thrust of the Migration Act is clear in requiring that a person must maintain a continuity of visa coverage if they are to avoid becoming an unlawful non-citizen. It is unclear why the immigration lawyer would have made such an error (assuming Ms Wijewardhanage’s evidence is accepted), but the error is not “administrative error” of the kind required by subsection 22(4A): Chapter 3 of the Citizenship Policy clarifies the meaning of some terms in the Citizenship Act, making it clear that “administrative error” refers to error or mistake by the administrative or executive arm of government, such as the provision of wrong information. That is supported by the case law: see Chaudhary and Minister for Immigration and Citizenship [2010] AATA 1006 (at [32]); and Re Liu and the Department of Immigration and Ethnic Affairs [1996] AAT 38 (at [20]-[28]). It is also in accordance with the use of that phrase in other statutory contexts, e.g. in section 97 of the A New Tax System (Family Assistance) (Administration) Act 1999 (see for example Dranichnikov v Centrelink [2003] FCAFC 133 (Hill, J at [59]-[64])). . I note, too, that Ms Wijewardhanage’s visa application is signed by her immigration lawyer on 13 January 2014 but by Ms Wijewardhanage and her husband on 15 January 2014.
In ex A2 Ms Wijewardhanage stated that she attended a departmental office before 15 January 2014, explained her situation, and was advised to return and apply for her visa on that day. If I were to accept that evidence, Ms Wijewardhanage would have a clear case that her status as an unlawful non-citizen was the result of administrative error by the Department. Chapter 3 of the Policy clearly identifies wrong advice and wrong information as administrative errors of the kind that enliven the discretion in subsection 22(A4) of the Citizenship Act.
I do not, however, accept Ms Wijewardhanage’s evidence on this point. In three statements to the tribunal Ms Wijewardhanage has made this claim only once. She did not pursue the point, nor attempt to secure evidence from the member of departmental staff who gave her that advice. And it is inherently unlikely that a departmental officer would provide advice so directly contrary to fundamental provisions of the Migration Act.
I am led to the conclusion that Ms Wijewardhanage did not become an unlawful non-citizen because of administrative error. The discretion in subsection 22(4A) is not enlivened.
Should Krishni and Tristan be granted citizenship?
It is common ground that Ms Wijewardhanage’s applications on behalf of Krishni and Tristan meet the eligibility requirements in subsection 21(5) of the Citizenship Act, and that the discretion to grant citizenship to them is therefore enlivened. The question before me is whether that discretion should be exercised. The exercise of the discretion in the present context is conditioned by the guidance on the grant of citizenship to children in Chapter 7 of the Policy.
The scheme set out on pages 75-6 of the Policy distinguishes between children under 16 who apply in their own right and those whose application is part of that of their parents. The latter must meet a less demanding set of requirements: they must be permanent residents, and living with a responsible parent who has consented to their inclusion on the application. If the applying parent’s application is refused, however, the child must meet the more demanding requirements for children who have applied in their own right: the child’s responsible parent must already be a citizen, or not applying for citizenship, or if not approved the child would suffer “significant hardship or disadvantage” (and there are other possibilities not presently relevant).
Thus the administrative scheme developed to condition the exercise of the discretion arising from subsection 22(4A) of the Citizenship Act is that where a parent is granted citizenship, children of the person would normally be granted it at the same time; but if it is denied the parent, it is only granted to the children under exceptional circumstances. The purpose, presumably, is to maintain an integrated citizenship status for the family and avoid creating circumstances that might encourage families to split up. Provided it is applied with some flexibility, I cannot see that the Policy is inconsistent with the Act, which in this area confers a very broad discretion on the Minister either to approve or refuse the grant of citizenship.
In present circumstances, the only relevant consideration is whether Krishni and Tristan would suffer significant hardship or disadvantage if refused citizenship. Chapter 3 of the Policy elaborates on the meaning of significant hardship or disadvantage. In general, the material there, which relates to matters such as whether a person could secure employment, is not relevant to children. The Minister argued that Krishni and Tristan will continue to receive the main benefits of living in Australia, as these come with permanent residency rather than citizenship. Thus education, social security, family assistance and health care are all available to them.
Australia is a party to the Convention on the Rights of the Child, having ratified that instrument in 1990. The Policy notes that Article 3 of that Convention commits states parties to take into account the rights of children in all decisions concerning them made by courts and administrative bodies, among others. The enumerated rights in the Convention include the right to a nationality and to be cared for by the child’s parents (Article 7), to medical assistance and health care (Article 24), to social security support (Article 26) and to education (Article 28). The Convention places considerable emphasis on the importance of maintaining the family unit and the bond between parents and children.
In all the circumstances of this matter, it would be difficult to conclude that Krishni and Tristan would suffer significant hardship or disadvantage if refused citizenship. They remain with their parents and will have their care and attention; I have no evidence that they would be at risk of going without the essentials of life. They will have access to the basic services provided in Australia to all residents, including education, health care and social security. It is not contrary to the best interests of the children to refuse them citizenship when their parents’ citizenship has been refused. I conclude that the Policy should be applied to Krishni and Tristan, and the discretion to refuse citizenship to them should be exercised, despite their eligibility under subsection 21(5) of the Citizenship Act.
I note that considerable time has now elapsed since Ms Wijewardhanage first applied to become a citizen and was refused. It is open to her to apply again once she meets the requirements of the Citizenship Act, and to include her children in that application if she so chooses.
DECISION
Ms Wijewardhanage was an unlawful non-citizen for a brief period on 15 January 2014 and as a result does not meet the general residence requirements in the Citizenship Act. Her status as an unlawful non-citizen did not result from administrative error. She does not, therefore, meet the conditions for grant of Australian citizenship. Her two children meet the eligibility requirements for the grant of citizenship, but the discretion to refuse them citizenship should be exercised, as they do not meet the requirements of the Citizenship Policy.
The decision under review is affirmed.
44. I certify that the preceding 42 (forty-two) paragraphs are a true copy of the reasons for the decision herein of Member Mark Hyman
45.
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Associate
Dated: 4 April 2018
Date(s) of hearing: Hearing on the papers Solicitor for the Applicant: Self-represented Solicitors for the Respondent: Clayton Utz
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