Miscellaneous Cases


DVORANI v MIMA [2000] FCA 1302,  (2000) 102 FCR 1

Mr Suleman lived in Australia from 1916 and was naturalised in 1932. On a visit to Albania in 1935 he married and returned to Australia without his wife in 1936 due to insufficient funds. He returned to Albania in 1949, intending to bring her to Australia. However, he found that Albania had become a totalitarian state and he was unable to leave prior to his death in 1973. Mr Suleman and his wife had a daughter in 1950, and she was refused registration as an Australian citizen by descent on the ground that her father was not an Australian citizen at the time of his death, as required by s 10C(4)(b)(ii) of the Australian Citizenship Act 1948 (Cth). This decision was upheld by the Administrative Appeals Tribunal, which found that the father had ceased to be an Australian citizen pursuant to s 20, which applied to “an Australian citizen who … is a naturalised person and, after the date of the commencement of this Act, had resided outside Australia and New Guinea for a continuous period of seven years” without giving prescribed notice of intention to retain citizenship.


The Full Federal Court found:

In our view the statutory scheme makes it clear that, for the purposes of s 20, a person is taken to be residing outside Australia only if they do so intentionally, or voluntarily. If we are wrong on that point, then it can at least be said that the statutory scheme and the decisions cited establish that the expression in question is capable of more than one meaning and is in the relevant sense ambiguous or obscure so as to warrant recourse to extrinsic materials.


The Federal Court went on to look at the explanatory memorandum to s. 20 and concluded:


These notes spell out the “mischief” sought to be remedied and confirm that the underlying purpose of s 20 was not directed to a situation such as that with which Mr Suleman was confronted. The purpose of s 20 was clearly to prevent persons taking advantage of the privileges and rights attaching to Australian citizenship while having no intention of retaining any other connection with the Australian community.




Two further matters should be considered when resolving the ambiguity of the expression under consideration here. The first is that deprivation of citizenship involves the loss of an important status and rights. Legislation which has this effect calls for clear and express wording. No such clear or express language appears in s 20. The second consideration is that, on accepted canons of interpretation, it is appropriate to consider the consequences of the interpretation contended for by the Minister in circumstances where more than one interpretation is available: s 15AB of the Acts Interpretation Act and Cooper-Brookes (Wollongong) Pty Ltd v Commissioner of Taxation (Cth) (1981) 147 CLR 297 at 305 and 321. The position adopted by the Minister in this case means that Mr Suleman ceased to be an Australian citizen in circumstances where he had no intention to lose citizenship. The inference from the evidence is clearly that he intended to retain his Australian citizenship. He was prevented by circumstances beyond his control from confirming his relationship with the Australian community.


[33] For these reasons in our view the correct interpretation of s 20 is that it does not apply to the circumstances of Mr Suleman because the phrase “resided outside Australia” requires an intention to remain outside Australia. It does not apply where compliance with the section is not possible due to circumstances beyond the control of the citizen, and the citizen retains a desire or intention to remain an Australian citizen.


Although it did not expressly decide the point, Rani v Minister for Immigration and Multicultural Affairs (1997) 80 FCR 379; 49 ALD 619, looked at the situation of a child born in Australia when the father had obtained his permanent residence visa by fraud (through a bogus marriage to an Australian citizen).  The father later divorced is sham wife and successfully sponsored a new wife who came to Australia and bore him a child. DIMA naturally sought to cancel the husband’s visa and then the wife’s visa under the consequential s. 140 provisions of the Migration Act.  Sackville J ultimately held that s. 140 only applied to the members of the family unit of the principal visa holder at the time the visa holder obtained the visa, not to members of a family unit who arrive in Australia later using other visas.  Here the “second” wife/mother came on her own visa later albeit sponsored by her husband as a spouse.  Therefore the wife’s visa’s cancellation was declared invalid by the Federal Court.  But Sackville J made observations that the cancellation regime was prospective not retrospective to the grant time of grant of the original visa.  Therefore on that reasoning a child born to a permanent resident prior to cancellation of a visa would still be the child of a permanent resident and therefore an Australian citizen.


[Note in this paper when the phrase “the new Act” is used it is a reference to the Australian Citizenship Act 2007, the phrase “the old Act” is a reference to the Australian Citizenship Act 1948]


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


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

Barbara Davidson