Student caught by Immigration ‘error’ on citizenship

Edited extract of advice given in a particular matter

Students have often applied for one of the skilled visas and then go back home for a short holiday while the student visa is still intact. Immigration says if the student doesn’t ‘renew’ his or her BVA on return then the BVA automatically comes to end while the student is away – this is incorrect. Immigration claims the student becomes unlawful once the student visa expires. Being unlawful for one day starts the clock again for citizenship purposes. Hence Immigration says one cannot then count the time in Australia prior to becoming supposedly unlawful. Here are the details of a case summary which illustrates the issue.

When Mr X was granted a Bridging Visa A (“BVA”) he was also still holding a valid substantive visa, a Subclass 573 – Higher Education Sector visa (“subclass 573 student visa”).

Under paragraph 010.511(a)(ii) [see below] of Schedule 2 to the Migration Regulations 1994, that BVA does not come into effect (as is logical) until that student visa ceases. Thus when Mr X went overseas the BVA had yet to come into effect. DIAC erroneously concluded that because Mr X went overseas while the holder of a substantive visa, that Mr X’s BVA ceased to be in effect because of s. 82(8) which reads:
(8) A visa to remain in, but not re-enter, Australia that is granted to a non-citizen in Australia ceases to be in effect if the holder leaves Australia.

But the error in Immigration’s approach is that a BVA cannot cease to be in effect until it has actually come into effect. The word ‘cease’ suggests that something has, at least started. Yet the Migration Act and Regulations recognise that a BVA cannot come into effect until the substantive visa has ended (which is obvious). So it is a logical impossibility for a BVA to cease “to be in effect” prior to that BVA being in effect. It is my opinion that the error is plain. A detailed explanation of that opinion is set out below.

What has caused this error? Over the years the Migration Act and Regulations have built up as a patchwork quilt put together by many different hands. French CJ, Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ in the High Court decision of Plaintiff M61/2010E v Cwth; Plaintiff M69 of 2010 v Cwth [2010] HCA 41 (11 November 2010) recently (albeit in the different context of protection visas) aptly described the act and regulations as follows:

….read as a whole, the Migration Act contains an elaborated and interconnected set of statutory provisions

A migration officer could be forgiven (if it were not for the harm wrong decision cause) for reading and applying s. 82(8) in isolation. But s. 82(8) must be read with paragraph 010.511(a)(ii). Once the interconnection between s. 82(8) and paragraph 010.511(a)(ii) is appreciated, it is clear that a BVA can not cease to exist until at least it has begun to exist. Therefore Mr X’s BVA never ceased to exist while Mr X was overseas and Mr X was never an unlawful non-citizen.

What I am about to say has not been conveyed to the client but as counsel I would be ready willing and able to take Mr X’s citizenship application on appeal to the Administrative Appeal Tribunal on a ‘no win no fee’ basis because I have confidence in this matter being resolved favourably.

The details

On the basis of the material supplied to The migration agent with the complaint I set out the following chronology of events.

The material accompanying the complaint does not disclose when Mr X was issued with a subclass 573 student visa but for the purposes of the complaint Mr X held that student visa during at least the period from 13 December 2007 until 15 March 2008 when that visa expired.

On 13 December 2007 Mr X made a valid application for a subclass 485 visa. Form 1276 (whether internet or otherwise) being the form for the application for a subclass 485 visa is also the form for an application for a Bridging Visa A [see Item 1301(1)to Schedule 1 to the Migration Regulations 1994] and as a consequence of that application Mr X was granted a Bridging Visa A on or shortly after 13 December 2007.

But because Mr X also held a substantive visa at that time (ie the subclass 573 student visa) that Bridging Visa A did not come into effect until 16 March 2008 because of the effect of paragraph 010.511(a)(ii) of Schedule 2 to the Migration Regulations 1994. The relevant text of paragraph 010.511(a)(ii) is set out:

010.5 When visa is in effect

010.511

In the case of a visa granted to a non-citizen who has applied for a substantive visa — bridging visa:

(a) coming into effect:

(i) on grant; or

(ii) when the substantive visa (if any) held by the holder ceases; and

Thus under paragraph 010.511 if a person already holds a substantive visa when the bridging visa is granted then that bridging visa does not come into effect until the substantive visa is no longer in effect.

A bridging visa only comes into effect immediately on grant if a person did not hold any substantive visa at the time the bridging visa A was granted.

In other words paragraph 010.511 determines two alternative situations concerning when a person’s BVA comes into effect. One is when a person does not hold a substantive visa, in which case the BVA comes into effect immediately and the other is when the person holds a substantive visa in which case the BVA comes into effect when the substantive visa ceases.

Thus Mr X’s BVA did not come into effect until Mr X’s student visa ceased. Logically it could not have ceased until after it had come into effect. Hence s. 82(8) has no effect in Mr X’s case. Obviously if Mr X had left Australia after 15 March 2008 (ie after the student visa expired) then s. 82(8) has work to do because then thet BVA would have come into effect and would have ceased to be in effect once Mr X had left Australia after 15 March 2008. But that is not the case here.

Hence Immigration has made an unfortunate error and Immigration ought to correct that error. If the error has been made by Immigration, then of course The migration agent has not made any error.

The involvement of Immigration

Problems are often caused when Immigration counter staff give advice. As I read the material Mr X appears to have asked the migration agent’s advice with regard to travel to Australia however she did not in fact act on his behalf with regard to his travel overseas. The migration agent recommended that he apply for a 3 month BVB from Immigration. If Mr X had done, it would have been granted. He would have returned to Australia on a BVB and never have been unlawful.

However, Mr X went to Immigration and based on the advice he received there decided to travel on his student visa and not apply for the BVB.

(It is also pointed out that Mr X never advised the migration agent that he had left and returned on his student visa until on or about 4 June 2008 when she then requested that DIAC reinstate the BVA. The BVA was reinstated that day as per the email dated 4/6/2008 from Immigration.)

© Lorenzo Boccabella 2017

[1] See Australian Citizenship Legislation Amendment Act 2002

[2] Specified in Federal Register of Legislative Instruments (FRLI), F2007L02008, 30 June 2007, IMMI 07/037

[3] Specified in Federal Register of Legislative Instruments (FRLI), F2007L02008, 30 June 2007, IMMI 07/037

[4] See Australian Citizenship Legislation Amendment Act 2002

[5] The citizenship equivalent to the PAM.

[6] See paragraph 1 of Schedule 1 of the amending regulation amending Reg 1.03.

[7] (2002) 212 CLR 162 at 176 [42].