Zhuhui LI and Minister for Immigration and Border Protection
[2014] AATA 674
•16 September 2014
[2014] AATA 674
Division GENERAL ADMINISTRATIVE DIVISION File Number
2014/1303
Re
Zhuhui LI
APPLICANT
And
Minister for Immigration and Border Protection
RESPONDENT
DECISION
Tribunal Senior Member P W Taylor SC
Date 16 September 2014 Place Sydney (a)Mr Li’s 20 March 2013 visa period commenced at the beginning of that day
(b)For the purpose of ACA 2007 s 22(1)(c) Mr Li was a permanent resident for the 12 month period preceding his 28 February 2014 application.
(c)The decision under review is set aside.
(d)If either party opposes an order remitting Mr Li’s application to the Respondent for determination in accordance with these reasons, they must provide their submissions, and the terms of any alternative order, within 7 days (both to the Tribunal and the other party). I will determine any contentious aspect of that proposed order on those submissions, unless either party requests a further oral hearing.
........................[sgd]................................................
Senior Member P W Taylor SC
CATCHWORDS
CITIZENSHIP - Citizenship application - Close and continuing association with Australia - Decision set aside - Decision remitted to Minister for redetermination
LEGISLATION
Australian Citizenship Act 1948 (Cth), ss 13(1), 13(1A), 13(4)(b)(iv)
Australian Citizenship Act 2007 (Cth), ss 21(2)(g), 22(1)(a), 22(1)(c), 22(9), 24(5)
CASES
Beauty Aids Pty Ltd v Commissioner of Taxation (1965) 113 CLR 662
Farnell Electronic Components Pty Ltd v Collector of Customs (1996) 72 FCR 125
Marshall v DG Sundin & Co Pty Ltd (1989) 16 NSWLR 463
South Australia v Slipper (2003) ALR 473Tomlinson v Bullock (1879) 4 QBD 230
SECONDARY MATERIALS
Australian Citizenship Instructions, s 5.18
REASONS FOR DECISION
Senior Member P W Taylor SC
16 September 2014
Mr Li is a 65 year old Canadian citizen. He has been employed as a clinical psychologist in Ontario since April 1998. Subject to a dispute about the significance of a visa expiry on 19 March 2013, and its renewal on 20 March 2013, Mr Li has held successive permanent visas, and thus been an Australian permanent resident, since at least 20 February 2003.[1]
[1] Mr Li was granted a Class AJ Resident visa, subclass 105 in April 1998. This visa permitted his return until 24 April 2003.
Mr Li applied for Australian citizenship on 28 February 2014. A ministerial delegate decided that Mr Li had not been an Australian permanent resident for the whole 12 month period before 28 February 2014. The delegate regarded this requirement as mandatory – because of the combined effect of Australian Citizenship Act 2007 (Cth) (‘ACA 2007”) ss 21(4)(d) & 22(1)(c). The delegate refused Mr Li’s application on that ground alone, and did not determinatively address any other aspect of his application.
The specific reason for the delegate’s refusal decision was that Mr Li’s previous permanent “visa period” ended on 19 March 2013, and his “visa period” did not commence until 20 March 2013. The delegate determined that there must have been a period of time between the end of the earlier visa period and the grant of the subsequent visa.
The delegate acted on the “fact” that Mr Li’s visa was “granted on 20 March 2013”. This statement, and variants of it, were repeated in various parts of the delegate’s reasons. No document to substantiate these statements was included in those the Respondent produced in apparent discharge of its obligations under s 37 of the Administrative Appeals Tribunal Act1975 (Cth). No such document was produced by the Respondent at the hearing to support the asserted fact. No copy of the visa was produced. The Respondent at no stage produced any information of any kind to substantiate the statement on which the delegate had based his decision.
Unsurprisingly, Mr Li complained about the unfairness of the Respondent acting on a factual basis that it had no evidentiary basis to support. In response to Mr Li’s complaint I sought from the Respondent’s representative at the hearing a categorical assurance that the contentious visa had in fact been granted some hours after midnight on 19 March 2013. The Respondent’s representative, to his credit, did not give that assurance. He informed me that there was no available information to determine when the grant of the visa had been recorded.
The Respondent’s submission was that the Tribunal should determine the date and timing of the contentious visa grant “on the balance of probabilities”. The probabilities on which the Respondent invited the Tribunal to act were (i) that the visa had been granted on 20 March 2013, (ii) that it had been granted in office hours, and (iii) it had been granted sometime after midnight on 19 March 2013. I was invited to act on these “probabilities” despite being informed that visa applications were potentially processed in different geographical locations around the world, without any specific evidence that visa applications were only processed within ordinary office hours, and without any information about where the contentious visa application had been processed.
Without producing any evidence of the actual visa grant, but adhering to the proposition that it was granted on 20 March 2013, the Respondent submitted there was an unavoidable conclusion that there had been a break in the period of Mr Li’s status as an Australian permanent resident. The Respondent said that conclusion followed because the contentious visa took effect only from the moment of its grant, and could not be regarded as having taken effect at midnight on 19 March 2013.
THE RELEVANT VISA PERIOD
The ordinary position in relation to commencement of legislative provisions is that they take effect from the first moment of the day. In this respect, and others, the law is generally said to take no notice of parts of days: Tomlinson v Bullock (1879) 4 QBD 230 at 232. The practical difficulties of determining the precise time of an event or sequence of events provides the reason for the law’s pragmatic general approach: see Associated Beauty Aids Pty Ltd v Commissioner of Taxation (1965) 113 CLR 662 at 669.
The law’s pragmatic approach to fixing the time of a particular event cannot be applied contrary to a relevant legislative context. Nor can it apply where rights depend upon the precise sequence in which events occur: see Marshall v DG Sundin & Co Pty Ltd (1989) 16 NSWLR 463; South Australia v Slipper (2003) ALR 473.
The Respondent says that s 68 of the Migration Act 1958 (Cth) provides a context that precludes Mr Li’s permanent residence visa from being regarded as taking effect at the same instant his previous visa expired at midnight on 19 March 2013. The wording of s 68 (and also the wording of s 67 at the time of Mr Li’s application) is as follows:
67 Way visa granted
A visa is to be granted by the Minister causing a record of it to be made.
68 When visa is in effect
(1) Subject to subsection (2), a visa has effect as soon as it is granted.
(2) A visa may provide that it comes into effect at the beginning of a day, being a day after its grant:
(a) specified in the visa; or
(b) when an event, specified in the visa, happens.
(3) A visa can only be in effect during the visa period for the visa.
(4) A bridging visa (the reactivated bridging visa), held by a non‑citizen, that has ceased to be in effect under subsection 82(3), will come into effect again during the visa period for the visa if:
(a) the non‑citizen does not hold a substantive visa that is in effect; and
(b) either:
(i) the non‑citizen does not hold any other bridging visa; or
(ii) the reactivated bridging visa is determined, in accordance with the regulations, to be the most beneficial of the bridging visas held by the applicant.
As can be seen from the terms of s 68(3) a visa has effect during a “visa period”. Moreover, a visa may come into effect at the beginning of the day after it was granted. The expression “visa period” is defined in s 5 of the Migration Act 1958. That definition is complemented by s 77 (which declares the efficacy of the visa throughout the visa period) and s 82(1) (which states that a visa cancellation takes effect on cancellation) and s 82(2) (which declares that a visa ceases to have effect when another substantive visa is granted).
The definition of “visa period” (which was unaffected by amendments that took effect after Mr Li’s application) is in the following terms:
visa period, in relation to a visa, means the period:
beginning when the visa is granted; and
ending:
(i) in the case of a visa other than a bridging visa—when the visa ceases to be in effect; or
(ii) in the case of a bridging visa—when the visa ceases to be in effect otherwise than under subsection 82(3).
There are three points to be made about this definition, and the application of s 68 of the Migration Act 1958:
(a)the “visa period” is the critical period for the operative validity of a visa
(b)the “visa period” definition assumes that the visa period starts at the moment of the visa grant
(c)s 68(2) of the Migration Act, contrary to the assumption made in the “visa period” definition, specifically permits a visa to “come into effect at the beginning of a day, being a day after its grant”.
It would seem to follow that no safe inference could be drawn, merely from the knowledge of a visa period, when the visa was granted. For any visa, the actual grant decision may have been made either on the first day of the recorded visa period, or on the preceding day.
The Respondent invited me to determine the date and timing of the visa grant on the balance of probabilities. I took this to involve a recognition by the Respondent that none of the available evidence provided a definite date and time, and that the Tribunal could really only proceed by drawing appropriate inferences from the available material. In addition, the Tribunal could take into account its impressions or expectations of the likely course and sequence of events (for example as to whether or not the work involved in processing the application had occurred within Australian office working hours). The limited material the Respondent, and the information it informed me it could not produce, require that course to be adopted.
In accordance with the approach suggested in the preceding paragraph, I make the following findings:
(a)If there was a specific record of the visa grant, the primary decision maker would have referred to it – bearing in mind the centrality of the fact to the basis on which the decision was made.
(b)If there was a specific record that could meaningfully aid a determination of precisely when the contentious visa decision was made, that record would have been included in the documents the Respondent provided in discharge of its obligations under s 37 of the Administrative Appeals Tribunal Act.
(c)The Respondent is likely to be correct in the information it orally provided to the Tribunal – that there was no record of when the visa was granted.
(d)Since the Respondent was not able to provide the Tribunal with an assurance that the visa decision was made after midnight on 19 March 2013, it would be undesirable for the Tribunal to conclude that the decision was made after midnight unless the Tribunal was comfortably satisfied that such a conclusion was correct.
(e)Since the Respondent has not produced any record of the visa grant decision, and is unable to determine when the decision was made, it is more likely than not that the only available information is the actual visa period, and the 20 March 2013 date is actually the first date of the visa period.
(f)The 20 March 2013 date for the commencement of the visa period, having regard to the terms of s 68(3) of the Migration Act 1958, is at least consistent with the visa grant decision having been made on 19 March 2013.
(g)Mr Li probably lodged his visa renewal application some time prior to 20 March 2013.
(h)A conscientious departmental officer processing an application for the renewal of a Return (Residence) (Class BB) visa (the kind of visa class held by Mr Li) would have:
(i)been aware of the different visa periods that applied to the relevant visa subclass (i.e. that they varied between at least 1 and 5 years)
(ii)been aware of the potentially critical significance of Mr Li retaining continuity in his “permanent resident” status (as a mandatory pre-condition to eligibility for citizenship)
(iii)processed the application in a timely fashion, and prior to the expiry of his current visa
(iv)determined that the approved visa period would commence immediately on the expiry of Mr Li’s current visa
(v)would have exercised the power conferred by 68(2) of the Migration Act to ensure the continuity of Mr Li’s permanent resident status, without truncating the period of his existing visa, so as to ensure that he had the benefit of full and consecutive 12 month visa periods.
For these reasons I find, on the balance of probability, that Mr Li’s contentious visa period commenced at the beginning of 20 March 2013.
THE PERIOD OF PERMANENT RESIDENCE
The principally relevant aspect of the eligibility requirements confronting Mr Li is that he was a “permanent resident for the period of 12 months immediately before” his application: see ACA 2007 s 22(1)(c). The Respondent submitted that this provision was to be applied strictly and literally. More specifically, the Respondent submitted that no interruption in the duration of Mr Li’s permanent residence – whether it be the 9 hours between midnight 19 March 2013 and the start of usual officer hours at 09:00, or unknown instants of time after midnight, was sufficient to require the conclusion that Mr Li could not be regarded as a permanent resident for the requisite period.
There is a very well-known and established proposition that the law does not concern itself with trifling matters. There is an informative discussion of the application of this principle – often found expressed in the Latin maxim “de minimis non curat lex” – in the judgment of Hill J in Farnell Electronic Components Pty Ltd v Collector of Customs (1996) 72 FCR 125. At 72 FCR 128 Hill J cited both the second edition of Benion Statutory Interpretation: A Code and the 4th edition of Halsbury’s Laws of England as authority for the proposition that the de minimis principle was a statement of legal policy, also a rule of statutory interpretation and, as a rule of statutory construction, applied unless a contrary intention applied.
In the present case the Respondent submitted, albeit primarily in the context of the proper interpretation of s 68(3) of the Migration Act1958, that the de minimis principle was contrary to the statutory context and could not apply. I agree that the principle cannot apply to achieve a result that a visa period starts before the visa grant decision. I disagree that it cannot apply to, and is contrary to the proper interpretation of, provisions such as ACA 2007 s 22(1)(c).
The context in which that provision (with its reference to a 12 month period as a permanent resident) has to operate is one of considerable factual diversity, and potential exigency. So far as factual diversity is concerned, three propositions can hardly be controversial. First, many permanent resident visas can only be granted for 12 month periods.[2] Second, it will commonly occur that permanent residents apply for citizenship (because permanent residence is typically a mandatory pre-condition of citizenship eligibility). It will be rare for such an application to be made precisely on the last day of a 12 month visa period, and common for it not to be made on that date. So far as exigency is concerned, it will almost inevitably be the case that the Departmental work load, at least at some times of the year, will not result in the scrupulously prompt renewal of 12 month permanent visas, despite the visa applicant having lodged the application promptly, all required information being available, and the renewal uncontentious. It can hardly have been the properly interpreted meaning of the “permanent resident for the period of 12 months” requirement in ACA 2007 s 22(1)(c) to preclude its satisfaction where there is any discontinuity in a visa holder’s status – no matter the reason for, or the duration of, the discontinuity.
[2] See, for example, Subclass 155 visas – Migration Regulations Schedule 2 – paragraph 155.511.
My primary finding is that there was no discontinuity in Mr Li’s visa status as a permanent resident. If I am wrong in that conclusion I also find that the discontinuity could only have been a matter of hours, and was, more likely than not, attributable to the exigencies of the departmental work load and priorities. It was a de minimis discontinuity. In those circumstances I find that, for the purposes of the requirement in ACA 2007 s 22(1)(c), Mr Li was a permanent resident for the 12 month period preceding his 28 February 2014 application.
WHAT FOLLOWS
I was informed at the hearing that the parties had agreed, apparently with the acquiescence of Tribunal at a previous listing or directions hearing, that the question of permanent residence would be decided as a preliminary matter. No direction was made to that effect. No specific question was ever clearly articulated.
There is sometimes utility in deciding separate or preliminary questions. But whenever that course is embarked upon, it is highly desirable (and in reality necessary) for the specific question to be posed, and the consequences of its outcome to be similarly specified. That was not done in the present case. Had the specific question(s) been expressed, perhaps the nature and the apparent significance of the shortcomings in the Respondent’s evidence would have been better identified and appreciated. More importantly perhaps the essentially unproductive delay and cost in preparing for, convening and conducting the present hearing would have been avoided.
The fact that no consideration appears to have been given to the consequences of the Respondent failing on the “permanent resident” raises the question as to what now should follow from the findings I have made. Submissions the Respondent provided in July 2014 briefly addressed other reasons why the primary decision maker could have refused Mr Li’s application, and why the Tribunal was urged to affirm the dismissal decision. I infer that the Respondent’s preferred position is that the Tribunal should simply proceed to determine the appeal in the ordinary way. I would assume Mr Li, in the light of complaints he expressed from time to time during the hearing, would have a similar preference.
I am strongly disinclined to do anything other than set aside the decision under review and remit the matter to the Respondent to determine Mr Li’s application in accordance with the limited findings I have made. I am of that view for the following reasons:
(a)In the ordinary course of events the Tribunal’s function is a review function, in the exercise of that review function the Tribunal is typically greatly assisted by the analysis and reasoning of the primary decision maker – although, of course, the Tribunal’s mandate to make the “correct or preferable decision” is not to any extent restricted to identification of error in the reviewable decision.
(b)In the present matter, the primary decision maker simply did not address important aspects of Mr Li’s application, and the Tribunal would likely be assisted by the primary decision maker’s views.
(c)The material included in the documents the Respondent provided in discharge of its obligations under s 37 of the Administrative Appeals Tribunal Act are of the most limited kind, no doubt as a consequence of the limited basis of the primary decision.
(d)My experience in analogous matters in the Tribunal suggests that proper consideration of other aspects of Mr Li’s application will require, or at least should be informed by, detailed information of his visa history, movement records qualifications and background. In that context I note that Mr Li left Australia in 1998. Both at that time, and in 2003, he held 5 year resident return visas – a visa status that might suggest (having regard (at least to the current) subclass 155 provisions) that Mr Li’s relevant movement records and activities might not be confined to the 4 year period preceding his current application.
(e)The section 37 documents the Respondent provided, apart from being (in my view) quite inadequate to address the other matters the primary decision maker did not address, appear to have been assembled in a most inconvenient, disordered and possibly incomplete fashion. I illustrate that proposition by pointing out that page 32 of the section 37 documents is a “Supporting Document List” – presumably provided by Mr Li with his application. That document lists relevant documents in numerical order, and describes them. However, the documents themselves appear scattered throughout the section 37 documents – some before the list, some after it. I would be surprised if (although I cannot know whether) the original application was presented to the Department in this state. Whatever that fact, it is no state for the section 37 documents to be presented to the Tribunal.
(f)The hearing of the present application took place by telephone to Mr Li in Canada, and with the aid of a Cantonese interpreter. Neither party is to be criticised for that fact, and I make no complaint about it. However, there were delays in ensuring that all relevant material was available to Mr Li (some material had not previously been provided to him) and the process of oral communication was at times understandably slow and difficult. On the other hand, I infer from the written material that Mr Li provided, and the insightful diligence with which he participated in the hearing, that he has excellent communications skills in relation to written English – the method which is likely be involved in any further communications with the primary decision maker.
DECISION
In the circumstances I have outlined above, I propose to do the following
(a)Determine that Mr Li’s 20 March 2013 visa period commenced at the beginning of that day
(b)Determine that in any event, for the purpose of ACA 2007 s 22(1)(c) Mr Li was a permanent resident for the 12 month period preceding his 28 February 2014 application
(c)Set aside the decision under review
(d)Remit Mr Li’s application to the Respondent for determination in accordance with these reasons.
I make the determination and orders 27(a), 27(b), and 27(c). The parties have not addressed the proposed order in paragraph 27(d). If either party opposes that order being made, they must provide their submissions, and the terms of any alternative order, within 7 days (both to the Tribunal and the other party). I will determine any contentious aspect of Order 27(d) on those submissions, unless either party requests a further oral hearing.
I certify that the preceding 28 (twenty -eight) paragraphs are a true copy of the reasons for the decision herein of Senior Member P W Taylor SC ........................................................................
Associate
Dated 16 September 2014
Date of hearing 12 September 2014 Applicant By phone Solicitors for the Respondent Mr A Markus, Australian Government Solicitor
0