Australian Immigration Daily News

Is being present in Australia without a visa, as an unlawful non-citizen, for an extended period of time disqualifying when it comes to an application for Australian citizenship? 

Should it be? 

Our article on a recent AAT case that centred on this issue, Britos and Minister for Immigration and Border Protection, attracted considerable comment and controversy. 

So are you ready to hear about another case involving the same issue – Truong and Minister for Immigration and Border Protection (Citizenship) (2017) AATA 1213 (8 August 2017)? 

It’s interesting! Although the issue of the applicant’s status figured both into Britos and Truong, the Tribunal reached different results in these cases: in Britos,  the Tribunal refused the citizenship application, while in Truong, the Department’s decision to refuse the application was set aside. 

These were the circumstances in Truong: 

The applicant originally came to Australia in 1992, on a three – month visitor’s visa which was granted for the purpose of enabling her to visit her younger sister. This sister had herself come to Australia as a “boat refugee”. 

After the applicant’s visa had expired, in July 1992, she did not leave Australia, nor did she take any steps to “regularise” her visa status. What had happened was that when the applicant arrived in Australia, she found that her sister was pregnant, and that her marriage was in difficulty.  So the applicant felt herself “duty-bound” to remain in Australia to care for the sister. 

Also, while in Australia on this same visit, and shortly after her arrival, the applicant had met her present husband.  However, she did not immediately accept his proposal of marriage. 

Then, in 1999, the applicant did agree to marry her husband. The marriage took place in Vietnam, so that the applicant’s mother could attend. 

So, the applicant had stayed onshore in Australia as an unlawful non-citizen for a period of 7 years. 

The Tribunal’s decision does not record whether the applicant was employed, or whether she paid taxes on any income she received, during this period. 

1999, the applicant applied for a Partner (Provisional) visa while she was in Vietnam. Although this application was originally refused by the Department (for reasons that are not recorded in the Tribunal’s decision), ultimately the refusal was appealed to the then-Migration Review Tribunal, where it was set aside.  And ultimately the applicant came back to Australia, in 2001, under the authority of this Partner visa. 

From that time, she lived in Australia with her husband and their daughter. 

In its decision, The Tribunal focused on the following indicia that the applicant was a person of “good character”: that she had supported her daughter during her early years, by coaching her in math and driving her to school; that she had worked as a “process worker” since the time her daughter was 9 years old; that she and her husband were active in a community organisation whose aim is to preserve Vietnamese culture; and that she was well-regarded by her character witnesses as a good wife and mother and a helpful person. 

And as for the issue of her having spent about 7 years in Australia as an unlawful non-citizen? 

The Tribunal’s observations about this issue were fairly brief. It noted that the applicant “appreciates the illegality involved in having lived here after the expiry of her visa and regrets it”.  The Tribunal also observed that the applicant’s character witnesses were aware that she had lived in Australia unlawfully, but nonetheless supported her application. 

Having regard to this evidence, the Tribunal (Deputy President B W Rayment) was satisfied that the applicant should be considered to be a person of good character for the purposes of her citizenship application. 

So there you have it! Two cases involving persons with “checkered immigration histories” involving long periods of residency in Australia without a lawful visa. Both of them ultimately regularised their status and became lawful through Partner visas. 

The main distinguishing factor was that in Britos, the applicant had worked in Australia without reporting his income or paying taxes on it, while in Truong, the question of how the applicant has supported herself while in Australia unlawfully, and whether or not she had paid taxes, was simply not examined. 

But clearly, in Truong, the mere fact that the applicant had lived in Australia for a number of years as an unlawful non-citizen was not considered to be automatically disqualifying. 

So the decision here is proof positive that the writer is not the only person in Australia who considers that the prospect of “redemption” should be open, and that just because a person has at one time in their life been “unlawful” doesn’t necessarily mean that for all time they should be unable to qualify for Australian citizenship!

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