Tribunal: Senior Member Adria Poljak

The Department of Immigration and Border Protection (the Department) refused to grant the applicant Australian citizenship. The applicant applied to the AAT for a review of the decision. 

The applicant, a citizen of Zambia, arrived in Australia in 2003 and held various visas. The applicant’s visa expired while he was away from Australia in 2015 and he applied for a new visa upon his return. The new visa was not granted until 13 May 2016, which meant that for close to two months while the visa application was being considered, the applicant was an unlawful non-citizen in Australia.

One criterion an individual must satisfy to be granted Australian citizenship is the general residence requirement[1]. This requirement lists a number of factors that the applicant must satisfy, broadly related to residence in Australia, including that the applicant was not an unlawful citizen in the four years leading up to the application. One exception to the requirement is if this was caused by an administrative error.[2]

The applicant claimed the reason he was an unlawful non-citizen was due to an administrative error as the Department told him ‘not to worry’ about applying for a bridging visa. However, there was no evidence before the AAT that there had been such an interaction between the Department and the applicant. The AAT noted the applicant appeared to have incorrectly assumed he would automatically be granted a bridging visa in connection with his application.

The AAT was not satisfied that there was an administrative error by the Department noting that it was not the Department’s responsibility to notify the applicant that he needed to apply for a bridging visa. It is the applicant’s duty to be aware of his visa status at all times.

The AAT affirmed the Department’s decision not to grant the applicant Australian citizenship. 

Read the full decision on AustLII.

 

[1] Section 21 of the Australian Citizenship Act 2007

[2] Section 22 of the Australian Citizenship Act 2007