Zod and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Citizenship)
[2018] AATA 5981
•11 May 2018
Zod and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Citizenship) [2018] AATA 5981 (11 May 2018)
Division:GENERAL DIVISION
File Number(s): 2017/5920
Re:Youssef Ahmad Zod
APPLICANT
AndMinister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
RESPONDENT
DECISION
Tribunal:Chris Puplick AM, Senior Member
Date:11 May 2018
Date of written reasons: 27 October 2020
Place:Sydney
For the reasons given orally at the conclusion of the hearing of this matter on 11 May 2018, the Tribunal affirms the decision under review dated 31 August 2017.
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Chris Puplick AM, Senior Member
CATCHWORDS
CITIZENSHIP – application for Australian citizenship by conferral – refusal of citizenship application – whether Applicant satisfied general residence requirement – unlawful non-citizen – whether administrative error – decision under review affirmed
LEGISLATION
Australian Citizenship Act 2007 (Cth)
CASES
Douw and Minister for Immigration and Border Protection (Citizenship) [2017] AATA 2181
Ji Xian Liu and others v Department for Immigration and Ethnic Affairs (1996) 41 ALD 589
Khettouch and Minister for Immigration and Border Protection (Citizenship) [2015] AATA 717
Lai and Minister for Immigration and Ethnic Affairs (1987) 11 ALD 535
Shen and Minister for Immigration and Border Protection (Citizenship) [2018] AATA 766WRITTEN REASONS FOR ORAL DECISION GIVEN ON 11 MAY 2018[1]
[1] Where a decision is given orally by the Tribunal (Administrative Appeals Tribunal Act 1975 (Cth) section 43(2)) a party to the proceedings may request a copy in writing of that decision within a period of 28 days (section 43(2A)). The request for written reasons was received on 15 September 2020, well outside the statutory requirement. However, the Tribunal has nevertheless exercised its discretion to respond to that out of time request and provide these reasons as set out.
Chris Puplick AM, Senior Member
27 October 2020
Introduction[2]
[2] At the time of the Tribunal’s decision in this application, the Respondent was known as the “Minister for Immigration and Border Protection”.
This matter arises because, at the time of his application for Australian citizenship, Mr Zod was an unlawful non-citizen and thus not able to apply. He had become an unlawful non-citizen, he says, because the Department had delayed in advising him of the expiry of his visa, so that he could apply for a renewal of his visa, to which he was otherwise fully qualified and entitled.
The legislation that I am dealing with (the Australian Citizenship Act 2007 (Cth), sections 21 & 22) provides that there are certain qualifications which have to be met in order for a citizenship application to be granted. One of those qualifications is that in the four-year period prior to the lodging of the application, the Applicant must have been, at all times, legally resident in Australia. That is to say, to have a required and approved visa. There is only one way in which that requirement can be set aside and that is in the event that an administrative error has occurred, in which case the Minister is entitled to disregard the period in which the Applicant was not lawfully in Australia.
Administrative error
There have been a couple of cases in relation to what administrative error means in relation to citizenship cases. The first of those was decided in 1987 and is Lai and Minister for Immigration and Ethnic Affairs (1987) 11 ALD 535. The second is Ji Xian Liu and others v Department for Immigration and Ethnic Affairs (1996) 41 ALD 589 decided in 1996. In both of those cases, administrative error was found and the requirement in the Act was waived. There are, however, a number of current cases which deal more precisely with what administrative error is all about.
The first of those is a case from September 2015 in the matter of Khettouch and Minister for Immigration and Border Protection (Citizenship) [2015] AATA 717 in which it was established that, at each stage, the Department had in fact given clear and accurate information to the Applicant who, nevertheless, did not quite understand it although he had the information before him. There is a very recent case, on 9 April 2018, in Shen and Minister for Immigration and Border Protection (Citizenship) [2018] AATA 766, in which the question of administrative error was again discussed, but the Applicant was found not to have a case on other grounds.
The significant case, however, is that of Douw and Minister for Immigration and Border Protection (Citizenship) [2017] AATA 2181, and I intend to read part of that judgment which was given by Tribunal Member Grigg. It reads as follows:
[25] Mr Douw gave evidence before the Tribunal that: (1) it was difficult to understand the law; (2) when he flew in and out of Australia no one at Migration told him that the Temporary Border Visas would expire; (3) someone at Migration should have told him he would be in Australia illegally if he did not apply for a visa; and (4) he did not understand that the expiration of his temporary visa would affect his residency status or his Citizenship Application.
The Tribunal, however, went on to discuss whether in fact Mr Douw had been given any incorrect information and he had not. As a result, there was no administrative error.
Significant hardship or disadvantage
The legislation also provides, in section 22(6)(b), that if the Minister is satisfied that a person will suffer significant hardship or disadvantage if the period were not treated as one during which the person was present in Australia, the Minister may exercise their discretion. However, that relates to a very small group of individuals and is not relevant in this particular matter, nor was any evidence given to me about suffering of any hardship if this matter were not prosecuted.
Consideration
There are two areas in which potential administrative error could have arisen. The first was the arrival at the airport and the presentation to Mr Zod of a document which is reproduced in the Tribunal documents. That document states very clearly:
If you wish to remain in Australia after your border temporary class TA subclass 773 visa has ceased, you should approach a departmental office as soon as possible in order to apply for another visa.
That information was in Mr Zod’s hands and it is perhaps emblematic or illustrative of the fact that, in filling in his immigration form, Mr Zod had ticked all the wrong boxes because he was not clearly either aware or paying attention to what he was doing.
The second potential area of administrative error is whether in fact the Department should have notified Mr Zod at an earlier date of his non-citizen status. That, however, is impractical, given the number of cases involved or the burden that would place upon the Department and therefore cannot be regarded as administrative error.
This leaves me in the extraordinarily uncomfortable and unpleasant situation where I have to distinguish between justice, which would normally require Mr Zod be given his Australian citizenship, and justice under the law which in fact denies it to him. This is a very unsatisfactory situation. It is an embarrassment to me that Australian law operates in this fashion, but there is no alternative for me but to apply the law as I am bound by my oath of office to do so. It is regrettable that as a result of this there will be a period of time before Mr Zod is able to apply again for citizenship.
I hope that in the meantime, his life and career and his family in Australia will progress and it will flourish and that in due course when he meets the strict requirements of the law that any resubmitted application for Australian citizenship will be granted. I can only say as far as that is concerned “Inshallah”.
But in the meantime, I have to affirm the original decision.
I certify that the preceding 13 (thirteen) paragraphs are a true copy of the reasons for the decision herein of Chris Puplick AM, Senior Member
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Associate
Dated: 27 October 2020
Date of hearing: 11 May 2018 Solicitors for the Applicant: Mr O Jamal, Omar Interpreting Centre Solicitors for the Respondent: Mr J Hutton, Australian Government Solicitor
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