Akbari and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Citizenship)

[2022] AATA 509

Akbari and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Citizenship) [2022] AATA 509 (17 March 2022)

Division:  GENERAL DIVISION

File Number(s):               2021/4196; 2021/4602; 2021/5573

Re:Bonyad Ali Akbari

FIRST APPLICANT

Akbari by his father Bonyad Ali Akbari

SECOND APPLICANT

Akbari by her father Bonyad Ali Akbari

THIRD APPLICANT

AndMinister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

RESPONDENT

DECISION

Tribunal:Senior Member A. Nikolic AM CSC

Date of Decision:               17 March 2022

Date of Written Reasons:      21 March 2022

Place:Melbourne

The Tribunal affirms the reviewable decisions.

..........................[SGD]..............................................

Senior Member A. Nikolic AM CSC

CATCHWORDS

CITIZENSHIP – application for conferral of Australian citizenship – failure to pass citizenship test – Australian Citizenship Act 2007 (Cth) – eligibility of persons under 18 – general eligibility provisions – exercise of discretion to refuse citizenship approval of other minor applicants – Citizenship Policy – Revised Citizenship Procedural Instructions – United Nations Convention on the Rights of the Child – assessment of each applicant in their own right – best interests of the children – no significant hardship or disadvantage identified – reviewable decisions affirmed

LEGISLATION

Administrative Appeals Tribunal Act 1975 (Cth)

Australian Citizenship Act 2007 (Cth)

CASES

Minister for Home Affairs v G (2019) 164 ALD 103
Minister for Home Affairs v Zadeh (No 2) [2018] FCA 1828
Negri v Secretary, Department of Social Services [2016] FCA 879

Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634

SECONDARY MATERIALS

Australian Government, ‘Commonwealth supported places (CSPs)’ StudyAssist (Web Page, 18 March 2022) < Commonwealth supported places (CSPs) | StudyAssist>
Department of Immigration and Border Protection, Australian Citizenship Policy Statement (27 November 2020)

Convention on the Rights of a Child, opened for signature 20 November 1989, 1577 UNITS 3 (entered into force 2 September 1990)

Refugee, Citizenship and Multicultural Programs Division, Department of Home Affairs, Revised Citizenship Procedural Instructions (26 February 2021)

REASONS FOR DECISION

Senior Member A. Nikolic AM CSC

21 March 2022

BACKGROUND  

1. The First Applicant seeks review of decisions by the Respondent to refuse his citizenship application and those of his two minor children.

2. The hearing was held in person at the Tribunal’s Melbourne Registry on 17 March 2022. The First Applicant was self-represented. He was accompanied by an adult son as his support person. The Second and Third Applicants did not attend the hearing, and the First Applicant requested their applications be considered with his. The Respondent was represented by Ms Michelle Stone, a solicitor with Mills Oakley.

3. At the conclusion of the hearing the Tribunal affirmed the decisions under review and gave oral reasons. On 17 March 2022 Ms Stone requested written reasons. These now follow in accordance with the requirements of section 43(2B) of the Administrative Appeals Tribunal Act. In providing them the Tribunal has had regard to the decision of Bromberg J in Negri v Secretary, Department of Social Services [2016] FCA 879, which considered the extent to which the Tribunal could elaborate upon its oral reasons when producing written reasons. His Honour stated at [27]:

   ‘...As long as the reasoning remains consistent, there can be no objection to the provision of a more-elaborate exposition of the same reasoning that was orally explained. What is not permissible is altered or new reasoning. The Tribunal is not permitted to substantially divert from the reasoning upon which its decision was made, but is permitted to explain that reasoning differently and, in doing so, is required to address the matters specified in s 43(2B).’

   INTRODUCTION

4. The Applicant is a fifty-nine-year-old citizen of Afghanistan.[1] He arrived in Australia in May 2014[2] as the holder of an Offshore Refugee (subclass 200) visa and was subsequently granted a Resident Return (subclass 155) visa in February 2019.[3] He is married with eleven children and has departed Australia on one occasion in 2019.[4]

   [1] Exhibit R1, 87.

   [2] Ibid 182.

   [3] Ibid 8; 183.

   [4] Ibid 182.

5. The Applicant lodged an application for Australian citizenship by conferral on 15 October 2018[5]. Two of his minor children, the Second and Third Applicants, were included under his application.

   [5] Ibid 87.

6. On 18 February 2021 the Applicant sat an Australian Citizenship test (the test), which he did not pass.[6] He subsequently sat the test twice on 23 March 2021[7] and twice again on 5 May 2021,[8] but did not pass.

   [6] Ibid 10.

   [7] Ibid.

   [8] Ibid 10.

7. On 10 May 2021, the Applicant contacted the Department to request another appointment to sit the test within 20 days.[9]

   [9] Ibid 169.

8. On 10 June 2021, a delegate of the Minister refused the Applicant’s citizenship application under s 21(2A) of the Australian Citizenship Act 2007 (Cth) (the Act), because he had not successfully completed a citizenship test and therefore could not satisfy the citizenship requirements under s 21(2)(d), (e) and (f) of the Act.[10] The Applicant was not assessed under the residence (s 21(2)(g)) or good character (s 21(2)(h)) provisions of the general eligibility requirement. The only ground for review before the Tribunal is the test component. 

   [10] Ibid 178.

9. The Second and Third Applicants are also citizens of Afghanistan and arrived in Australia under their mother’s Offshore Refugee (subclass 200) visa. They are respectively 17 and 14 years of age.[11]

   [11] Ibid 121, 124.

10. On 10 June 2021, a delegate of the Respondent exercised the discretion under s 24(2) of the Act to refuse the children’s applications for citizenship.[12]

    [12] Exhibit R2, 13; Exhibit R3, 25. 

11. On 25 June 2021, the First Applicant sought review of all three decisions.[13]

    [13] Exhibit R1 3.

    LEGISLATIVE FRAMEWORK  

12. Section 25(1)(a) of the Administrative Appeals Tribunal Act 1975 (Cth) (the AAT Act) and s 52(1)(b) of the Act confer jurisdiction upon the Tribunal to review decisions under s 24 of the Act.

13. The Preamble to the Act states:

    The Parliament recognises that Australian citizenship represents full and formal membership of the community of the Commonwealth of Australia, and Australian citizenship is a common bond, involving reciprocal rights and obligations, uniting all Australians, while respecting their diversity.

    The Parliament recognises that persons conferred Australian citizenship enjoy these rights and undertake to accept these obligations:

    (a)       by pledging loyalty to Australia and its people; and

    (b)       by sharing their democratic beliefs; and

    (c)       by respecting their rights and liberties; and

    (d)       by upholding and obeying the laws of Australia.

14. Section 21(1) of the Act provides that a person may apply to the Minister to become an Australian citizen. Section 24(1) of the Act obliges the Minister to approve or refuse to approve applications for citizenship made under s 21.

15. By virtue of s 24(1A) of the Act, the Minister is prevented from approving an application for citizenship unless the applicant meets one of the eight eligibility criteria set out in s 21.

16. The Applicant’s citizenship application was made under the General eligibility criteria at s 21(2) of the Act. Relevantly for the purposes of this application, s 21(2)(d), (e) and (f) of the Act provide:

    General eligibility

    (2) A person is eligible to become an Australian citizen if the Minister is satisfied that the person:

    …

    (d) understands the nature of an application under subsection (1); and

    (e) possesses a basic knowledge of the English language; and

    (f) has an adequate knowledge of Australia and of the responsibilities and privileges of Australian citizenship; and

    …

17. Section 21(2A) of the Act provides that these three requirements are satisfied ‘if and only if the Minister is satisfied that’:

    (a)The person has set a test approved in a determination under s 23A of the Act;

    (b)The person was eligible to sit that test (worked out in accordance with that determination);

    (c)The person started that test within the period worked out in accordance with that determination and completed that test within the period (the relevant test period) worked out in accordance with that determination;

    (d)The person successfully completed that test (worked out in accordance with that determination) within the relevant test period.

18. In respect of the Second and Third Applicant’s applications, s 21(5) of the Act applies where the person applying for citizenship is under the age of 18. The following eligibility requirements for citizenship by conferral are imposed:

    Person aged under 18

    (5)  A person is eligible to become an Australian citizen if the Minister is satisfied that the person:

    (a)is aged under 18 at the time the person made the application; and

    (b)is a permanent resident:

    (i)at the time the person made the application;

    (ii)at the time of the Minister’s decision on the application.

19. Section 24(2) of the Act provides the Minister with a discretion to refuse to approve an application for Australian citizenship despite the person meeting the eligibility requirements of s 21 (5).

    Citizenship Policy and Procedural Instructions

20. The Australian Citizenship Policy Statement (Policy) (issued on 27 November 2020) and the Revised Citizenship Procedural Instructions (CPI) (reissued on 26 February 2021) provide guidance for decision-makers exercising power under the Act. The Tribunal may also be assisted by this policy in discharging its review functions under the AAT Act. The Full Court of the Australian Federal Court has held that the discretion to approve or refuse citizenship is unfettered, and ‘not inimical to the adoption of executive policy…to guide the exercise of discretion.’[14] Their Honours reasoned that the Act envisaged the existence of executive policy, the adoption of which promotes consistency and rationality in decision-making.[15] Noting that each case before the Tribunal is considered de novo and on its merits, Government policy is ordinarily considered and applied unless there is a cogent reason not to do so.[16] No submissions were made that the Tribunal should disregard the available policy and the Tribunal has applied it.

    [14] Minister for Home Affairs v G (2019) 164 ALD 103, 120 [64].

    [15] Ibid, [65]; [70].

    [16] Drake and Minister for Immigration and Ethnic Affairs, Re (No 2) (1979) 2 ALD 634.

21. Relevant to the First Applicant’s application is CPI 26-Australian Citizenship Test (CPI 26). This provides that ‘to successfully complete the standard or assisted test an applicant must answer at least 75 per cent (i.e. 15 out of 20) of the test questions correctly’ and five randomly selected values questions.

22. Under the heading ‘Failing the test’, CPI 26 draws upon the judgement of the Federal Court in Minister for Home Affairs v Zadeh (No 2) [2018] FCA 1828, which found that the Determination does not allow applicants to re-sit the test as many times as they wish, and the Minister is not prevented from deciding a citizenship application when an applicant has asked to re-sit the test. CPI 26 confirms that generally, ‘if an applicant has failed on their third test appointment, it is open to the decision-maker to refuse a citizenship application on the basis that paragraphs 21(2)(d), (e) and (f) of the Act are not satisfied.’

23. In respect of the Second and Third Applicants, the Tribunal has considered the Policy and CPI 4 – Australian Citizenship by Conferral – Person under 18 (CPI 4). Clause 7.1 of CPI 4 applies to applications for citizenship lodged independently on behalf of children aged 15 years and under. It provides the following general instructions:

    In order to uphold and maintain the integrity of the citizenship program decision-makers must have due regard to all the circumstances of the family unit when considering individual applications made by or on behalf of a child aged 15 years and under, or where a child’s application is being considered as an individual application because their responsible parent’s application has been refused or their parent has died.

24. CPI 4 identifies the following factors as being relevant to a decision under s 24(2) of the Act as to whether the Minister should exercise the discretion to refuse the application. Decision-makers are counselled to consider whether the child is:

    ·usually resident in Australia and living with a responsible parent who is an Australian citizen and who consents to the application; or

    ·usually resident in Australia and living with a responsible parent who is a permanent resident and who consents to the application, and that responsible parent would meet the residence requirement but has decided not to apply for Australian citizenship because they would lose the citizenship of another country; or

    ·usually resident in Australia and living with a responsible parent who is not an Australian citizen and who consents to the application. If the child would suffer significant hardship or disadvantage if they were not to become an Australian citizen at this time (for example, if the child would not have access to a certain scholarship which is only available to Australian citizens), then this may be a relevant consideration for decision-makers...or;

    ·usually resident overseas and living with a responsible parent who is an Australian citizen and who consents to the application. In this situation, it may be relevant for decision-makers to consider whether the grant of the Australian citizenship could disadvantage the child or put them in significant hardship (for example, whether by acquiring the Australian citizenship, the child would lose another citizenship which can affect their rights and access to entitlements, such as claiming an inheritance)…or;

    ·an unaccompanied humanitarian minor who falls under the Minister’s guardianship and a responsible parent or care has consented to the application…

    Applications must also be carefully considered to ensure that the child and their family unit or their relevant responsible parent, intends to reside, or continues to reside, in Australia or to maintain a close and continuing relationship with Australia should the application be approved.

25. Paragraph 10.1 of CPI 4 provides that in deciding whether to exercise the discretion under s 24(2), decision-makers should undertake a ‘best interests of the child assessment’, which must be included in the reasons for decision to demonstrate that the decision-maker has considered this matter. This reflects Article 3 of the United Nations Convention on the Rights of the Child (UNCRC)[17] to which Australia is a party, which provides:

    In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interest of the child shall be a primary consideration.

    [17]  Convention on the Rights of a Child, opened for signature 20 November 1989, 1577 UNITS 3 (entered into force 2 September 1990).

26. CPI 4 provides additional guidance as to how the best interest of the child assessment is to be weighed in the decision-maker’s considerations when exercising power under s 24(2):

    The best interests of the child is a primary consideration but it is not the only consideration that must be taken into account. A best interest of a child assessment cannot override a legal requirement set out in the Act, but the exercise of a discretionary power, such as subsection 24 (2) must take account of the best interests of the child as a primary consideration.

27. CPI 4 also refers to CPI 13-Best interests of the child assessments (CPI 13). In defining the phrase ‘best interests of the child,’ CPI 13 draws upon the principles in the UNCRC and identifies the factors most likely to be relevant to citizenship decisions as follows:

    ·children should be protected from all forms of physical or mental violence, injury or abuse, neglect or negligent treatment, maltreatment or exploitation, including sexual abuse;

    ·families should be able to stay together, as far as possible;

    ·the rights and duties of parents and other relevant family members should be respected and it should be recognised that both parents have common responsibilities for the upbringing and development of the child;

    ·a child has the right to preserve his or her identity, including nationality, name and family relations as recognised by law;

    ·prevention of the illicit transfer and non-return of children abroad;

    ·freedom of religion;

    ·the views of the child should be given weight in accordance with the child’s age, maturity and level of understanding; and

    ·the degree of the child’s integration into the Australian community.

28. CPI 13 also supplements the guidance provided in CPI 4 as to how a best interest of the child assessment is to be considered in conjunction with the other matters relevant to the exercise of discretionary power under s 24(2). It provides:

    Consistent with Australia’s international human rights obligations, the ‘best interests of the child’ is a primary consideration concerning children, where there is the discretion to do so. These obligations do not require that the best interests of the child be the only primary consideration, or be considered at all where there is no discretion under legislation. The best interests of the child must be weighed with or against any other primary considerations in the specific circumstances. Other primary considerations may include (but are not limited to):

    ·     the objectives of the relevant provision/s in the Act;

    ·     community protection; and

    ·     community expectations.

    This means that although it may be assessed that a particular decision would be in the best interests of a child, it does not automatically follow that it is the decision that should be made. For example, it may be in the best interests of a child for a delegate to decide not to revoke an associated person’s Australian citizenship under section 34 of the Act but, depending on the particular facts and after taking into account the other primary considerations, the decision-maker may conclude that revocation of the person’s citizenship is the decision that should be made. This involves a weighing of the competing interests. For example, a severe detriment to the child might outweigh a minor fraud offence by the parent, whereas if it is only marginally in the child’s best interests that citizenship not be revoked, that may be outweighed by the parent’s conviction for a serious offence.

29. The Tribunal has considered CPI 12, which guides decision-makers about the meaning of ‘significant hardship or disadvantage’ and ‘significant hardship or detriment’. Given that the prospect of future tertiary study by the Second Applicant was raised as a potential source of hardship, the Tribunal notes that paragraph 3.2 of CPI 12 relates to a situation where:

    The person claims they cannot access educational opportunities until they become an Australian citizen.  For example, the person claims they will not be able to afford to pay the higher fees imposed on some non-citizens and will suffer significant hardship or disadvantage as a consequence...

    Australian citizenship is not a requirement to study in Australia at the primary, secondary or tertiary levels in Australia. Permanent residents are eligible for Commonwealth supported places in Australian universities, where available.  Although eligibility for financial assistance such as the Australian Government loan schemes HECS-HELP, is limited to Australian citizens, permanent humanitarian visa holders and some New Zealand citizens, aspiring students who do not qualify for such assistance may be able to defer tertiary enrolment until after they have acquired citizenship.

    ISSUES

1. The issues to be determined are:

   (a)Whether the First Applicant is eligible to become an Australian citizen pursuant to section 21(2) of the Citizenship Act; and

   (b)Whether it is appropriate to exercise the discretion under s 24(2) of the Act to refuse the Second and Third Applicant’s applications.

   EVIDENCE  

   Documentary evidence

2. The following documents were tendered into evidence:

   (a)Documents lodged by the Respondent numbering 183 pages for the First Applicant’s application;[18]

   (b)Documents lodged by the Respondent numbering 170 pages for the Second Applicant’s application;[19]

   (c)Documents lodged by the Respondent numbering 174 pages for the Third Applicant’s application;[20]

   (d)Further bundle of documents lodged by the Respondent numbering 54 pages;[21]

   (e)Three-page report of psychologist Ms Shagufta Riaz dated 8 December 2021;[22]

   (f)Medical certificate from Dr Bahareh Amirnazari dated 18 October 2021.[23]

   [18] Exhibit R1.

   [19] Exhibit R2.

   [20] Exhibit R3.

   [21] Exhibit R4.

   [22] Exhibit A1.

   [23] Exhibit A2.

   Applicant’s evidence

3. The Applicant stated he is married, and his wife is a permanent resident. They have 11 children who were all born outside of Australia. The Applicant works on a farm where he undertakes ‘pruning and tilling’ tasks. He holds an Australian driver’s licence[24]  and drives himself to and from work.

   [24] Exhibit R1, 27.

4. The Applicant said he tried to learn English in the past, including while living in Indonesia and then at a TAFE College after arriving in Australia in 2014. He has not undertaken English study since but said he is aware of the Adult Migrant English Program, which offers English training courses. He referred to undertaking ‘a lot of lessons’ on his computer to practice for the citizenship test but said his ability to learn this material was impacted by ‘memory problems.’

5. When asked why he applied for Australian citizenship, the Applicant said if a person decided to live in another country permanently, they ‘should become a citizen’. He was drawn to apply primarily by Australia’s values, where people from different backgrounds are respected. He also referred to being able to work, obtain a passport, and travel freely. 

6. The Applicant said he blamed himself for not passing the test, which he attributed to a ‘language barrier.’ He said that he achieved the requisite minimum standard of 75% several times but was then unable to successfully compete the five randomly selected questions about Australian values, which required a 100% result.

7. When asked if there was any detriment or hardship the two children under his application would suffer if their citizenship applications were not approved, the Applicant said he could not ‘predict the future,’ and asked his adult son to speak on his behalf. It was submitted that the Second Applicant had approximately two years of high school left to complete and ‘it’s hard to go to university without citizenship’.

   CONSIDERATION

8. The Applicant accepts he has not passed the citizenship test and therefore does not meet the general eligibility requirements at s 21(2) of the Act. His application is under the General Eligibility provisions of the Act and not because of an enduring mental or physical incapacity, which is under a different part of the Act: s 21(3). Although the Applicant made reference to memory problems and submitted expert evidence in this regard, The Tribunal does not have jurisdiction to consider an application yet to be lodged under a different provision of the Act, which has not been determined by the Respondent.

9. In respect of the Second and Third Applicants, both were under 15 at the time they were included under the First Applicant’s application. No evidence was presented that either child would suffer ‘significant hardship or disadvantage’ or ‘significant hardship or detriment’ within the meaning of the Act or policy. The reference to the now 17-year-old child wanting to study at university, potentially in early 2024, was speculative, unsupported by corroborating evidence from the child or regarding his academic aptitude, and did not persuasively link to significant hardship, detriment, or disadvantage. There was no evidence before the Tribunal about the Applicant’s current or future financial circumstances. Moreover, Commonwealth Supported Places, albeit restricted, may be available for permanent residents who are not Australian citizens.[25]

   [25] Australian Government, ‘Commonwealth supported places (CSPs)’ StudyAssist (Web Page, 18 March 2022) < Commonwealth supported places (CSPs) | StudyAssist>

10. The Tribunal has considered the best interests of the Second and Third Applicants. On the available facts both children would not be denied any rights if citizenship was not granted. As permanent residents they can reside in Australia indefinitely and their immigration status would not change if the reviewable decisions are affirmed. It is also worth noting the Second Applicant is approaching adulthood, and given he is over 16, can apply for citizenship in his own right. The younger child can do so approximately a year from now. The considerations at paragraph 7.1 of CPI 4 do not apply when a citizenship applicant is 16 or older.

    CONCLUSION

11. Given the Applicant has not satisfied ss 21(2)(d), (e) and (f) of the Act, he is ineligible for conferral of citizenship pursuant to s 24(1A) of the Act. There is no discretion under the Act or relevant Determination to vary his eligibility based on his current application.

12. After considering the best interests of the Second and Third Applicants against the relevant policy considerations in the CPI, no significant hardship, disadvantage, or detriment arises within the meaning of the Act or policy if their citizenship is not approved.

    DECISION

13. It follows that the Tribunal affirms all three reviewable decisions.

43.      

I certify that the preceding forty-two (42) paragraphs are a true copy of the written reasons for the decision of Senior Member A. Nikolic AM CSC

……………[sgd]…………………….
Associate

Dated: 21 March 2022

Date of hearing:	17 March 2022
Applicant, self-represented:	Bonyad Ali Akbari
Advocate for the Respondent:	Ms Michelle Stone
Solicitors for the Respondent:	Mills Oakley