Barrie and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Citizenship)
[2020] AATA 287
•18 February 2020
Barrie and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Citizenship) [2020] AATA 287 (18 February 2020)
Division:GENERAL DIVISION
File Number: 2018/1029
Re:Lyn Barrie
APPLICANT
AndMinister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
RESPONDENT
Division:GENERAL DIVISION
File Number: 2018/1030
Re:Adrienne Smith
APPLICANT
AndMinister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
RESPONDENT
Division:GENERAL DIVISION
File Number: 2018/1032
Re:Emily Smith
APPLICANT
AndMinister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
RESPONDENT
DECISION
Tribunal:Deputy President S A Forgie
Date of decision: 18 February 2020
Place:Melbourne
The Tribunal decides to affirm the decisions of a delegate of the respondent dated 27 February 2018 refusing to approve each of the three applicants becoming an Australian citizen.
............[sgd]........................................................
Deputy President S A Forgie
Catchwords
CITIZENSHIP – refusal – mother and minor daughters – application of citizenship policy – where applicant does not meet general residency requirements – whether applicant has close and continuing association with Australia – exercise of discretion under section 24 of Australian Citizenship Act to refuse approval – applicants under the age of 16 – definition of responsible parents– consideration of best interests of minor Applicants – decisions affirmed
Legislation
Australian Citizenship Act 2007 s 21(2)(c); s 22; s 22A; s 22B; s 23; s24
Acts Interpretation Act 1901; s 13(2)(b)
Family Law Act 1975 s4(1)
Secondary materials
Citizenship Policy
Cases
Coal and Allied Operations Pty Ltd v Australian Industrial Relations Commission and Others [2000] HCA 47; (2000) 203 CLR 194; 174 ALR 585
Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40; (1986) 162 CLR 24; 66 ALR 299
Minister for Immigration and Border Protection v Tran [2015] FCA 546; (2015) 232 FCR 540
Minister for Immigration and Ethnic Affairs v Teoh [1995] HCA 20; (1995) 183 CLR 273; 128 ALR 353; 39 ALD 206
Minister for Home Affairs v G [2019] FCAFC 79
Plaintiff M64/2015 v Minister for Immigration and Border Protection [2015]
HCA 50; (2015) 258 CLR 173; 327 ALR 8; 148 ALD 206
Port of Brisbane Corporation v Deputy Commissioner of Taxation [2004] FCA 1232; (2004) 81 ALD 549; 140 FCR 375
R v Australian Broadcasting Tribunal; Ex parte 2HD Pty Ltd [1979] HCA 62; (1979) 144 CLR 45; 27 ALR 321
Re Drake and Minister for Immigration and Ethnic Affairs (No 2) [1979] AATA 179; (1979) 2 ALD 634
Re Gray and Australian Securities and Investments Commission [2004] AATA 1235
Re Taher and Minister for Immigration and Border Protection [2013] AATA 917
Water Conservation and Irrigation Commission (NSW) v Browning [1947] HCA 21; (1947) 74 CLR 492
REASONS FOR DECISION
Deputy President S A Forgie
Ms Barrie is a South African citizen, who was granted an Independent Skilled visa (Subclass 136), which is a permanent visa, on 1 May 2002. Relying on that visa, she entered Australia on 2 August 2002 and left on 19 August 2002. Since then, she has been granted four Resident Return visas (Subclass 155) (RRV). When she applied for Australian citizenship by conferral for herself and her children on 27 January 2017, she was not in Australia. The RRV she then held required that she not arrive after 3 May 2018.
On 27 February 2018, a delegate of the Minister for Home Affairs (Minister) refused Ms Barrie’s application for Australian citizenship on the basis that she had not the met the eligibility requirements of s 21(2)(c) of the Australian Citizenship Act 2007 (AC Act) i.e. that she had not met the general residence requirement in s 22, the special residence requirements in ss 22A or 22B or the defence service requirements in s 23. There is no suggestion that she could satisfy either the special residence requirement or the defence service requirement. For the reasons I give below, I am not satisfied that she is able to take advantage of the ameliorating provisions in relation to the general residence test because I am not satisfied that she had a close and continuing association with Australia in the four year period before she lodged her application for Australian citizenship. That means that she does not meet the eligibility requirements of s 21(2)(c) and I have decided to affirm the decision of the delegate to refuse Ms Barrie’s application for Australian citizenship.
Ms Barrie’s daughters, Adrienne and Emily, also applied for Australian citizenship both on their mother’s application and in separate applications. A delegate of the Minister decided 0n 27 February 2018 that each of them satisfied the eligibility requirements in s 21(5) of the AC Act but exercised the discretion under s 24 not to approve their becoming Australian citizens as doing so was not in their best interests. I have reached the same conclusion both as to their meeting the eligibility requirements in s 21(5) and as to the exercise of the discretion under s 24. Therefore, I have decided not to approve their becoming Australian citizens. Therefore, I affirm the decision of the delegate.
BACKGROUND
On the basis of Ms Barrie’s evidence, I find that she has lived in the Kingdom of Bahrain (Bahrain) since February 2000 when her former husband, Mr Smith, who has dual South African and British citizenship, was posted there for his work. They have two daughters, Adrienne and Emily, and had planned to move to Perth in December 2008 so that their daughters could resume their schooling at the start of the following year. Before they could implement this plan, Ms Barrie’s former husband left the family in August 2008. Ms Barrie decided that she and their daughters should remain in Bahrain, where she was employed in a secure position as a teacher, in order to maintain the stability of the environment they were used to. She and her former husband divorced in South Africa in September 2010. They have joint custody of their daughters while Ms Barrie is their primary carer.
Ms Barrie met her husband, Mr Barrie, in October 2008 and they co-habited from October 2009. Mr Barrie is an Australian citizen. They married in Victoria on 24 April 2011. Their son was born in April 2013 and is an Australian citizen. Ms Barrie has an extended family living in Australia and maintains a close relationship with them. Two of her cousins live in Melbourne, two in Brisbane and a fifth in Sydney. One of Ms Barrie’s aunts lives in Brisbane and another and an uncle live in Sydney. Ms Barrie’s husband has numerous family members living on the eastern seaboard as well as in other parts of Australia.
Mr and Ms Barrie try to visit Australia each year for five weeks during their summer holidays. Every two years, Ms Barrie visits her parents in South Africa. When in Australia, the family stays with Ms Barrie’s mother in law and her partner in Victoria and visit other family members living in the region as well as travelling to Brisbane to visit her husband’s grandmother and her cousins. In 2012, Ms Barrie and her family did not come to Australia as her mother in law wanted them to meet in Thailand for a family holiday. They did not do so in 2013 either because their son had been born earlier in the year. When Ms Barrie and her family have not been able to travel to Australia, her mother in law and her partner together with Mr Barrie’s brother and members of their family visited them in Bahrain. On one occasion in 2017, her mother in law and her partner accompanied Mr and Ms Barrie to South Africa to visit her parents, who reside there. Family is extremely important to Ms Barrie and she chats on Skype and WhatsApp with her mother in law and sister in law each week. She communicates with her cousins monthly.
Mr Barrie owns a business in Bahrain, which he wishes to sell. Once he has sold it, his family and he all intend moving to Australia. The family cannot afford for Ms Barrie to live in Australia with the children and leave him in Bahrain. On 29 June 2013 and at their request, Mr Barrie’s alma mater placed their son on its waiting list for the Year 7 class in 2025. According to a letter dated 29 June 2013 and written by the Director of Admissions, applications for each entry year exceed places available. Enrolments for the college are usually finalised about twelve to eighteen months before the desired date of entry. In September 2017, their daughters were advised that their applications for scholarships at a girls’ college had been unsuccessful. Mr and Ms Barrie cannot afford the cost of their tuition and board at that school without the assistance of scholarships.
Mr and Ms Barrie have had both joint and personal bank accounts with a banking institution operating in both Australia and Bahrain. Ms Barrie did have an account with another banking institution in Australia between 2011 and 2015 but closed it after putting its balance towards the purchase price of a two bedroom apartment in Melbourne. She purchased it in November 2015 because she was advised to do so by an officer of the Department of Immigration and she wanted to have something to move into. Ms Barrie wanted to get her “boot in the door”. Since she purchased the apartment, she has leased it to tenants since 4 December 2015. The terms of the lease were originally yearly but she changed them in November 2018 to month to month so that she can require the tenants to vacate the unit in preparation for the family’s living in Australia. She has paid tax on her income from the unit as well as on interest earned as a non-resident and this is supported by Statements of Account provided by the Australian Taxation Office for the years of income for the periods from 1 July 2016, 5 September 2016 and 28 September 2017 to 25 July 2018.[1] Although the unit would not accommodate her family of five, Ms Barrie’s thinking was that some of them would stay with her mother in law, who has an apartment in the same block.
[1] Exhibit A
Ms Barrie is an early childhood teacher and is now the principal of a nursery or child care centre in Bahrain. She has considered operating a nursery in Australia and did visit a nursery in Torquay when she was in Victoria and spoke with a woman about the formal things she would need to do. As she would not be coming to Australia on her own, she has not taken the matter any further. She may have to undertake another course to be able to open a nursery but she did not know if that was so. The woman at the nursery in Torquay told her that her experience might be enough.
Ms Barrie and her family attend Australia Day activities in Bahrain as members of the expatriate community. They also attend ceremonies on Anzac Day. She works with a lot of charities in Bahrain and would continue to do that if she were to live in Australia.
On the basis of Mr Barrie’s evidence, I find that he has been trying to work on a plan to move to Australia since he met his wife. In 2009, he established a tennis academy that now has 150 students. He has made several approaches to see if others wanted to take over his business but times have changed in Bahrain. Changes have meant the removal of water and electricity subsidies and the cost of electricity has increased 9½ times. There has been a downturn in Bahrain’s economy although not in the four year period before his wife lodged her application for Australian citizenship on 27 January 2017. The increase in costs has led to the closure of another academy in Bahrain. While he has had some interest in purchasing the academy, the money offered has not been sufficient to make it profitable for him to leave Bahrain. In Australia, he has no written offer of employment were he to return to live but, each time he visits, Mr Barrie gets in touch with a friend who has quite a large coaching business. There is nothing to stop him from getting a job in his field.
Mr Barrie offered to adopt Adrienne and Emily but their father refused. He does not have any court order that they must live with him. Mr Barrie has not been appointed their legal guardian. He agreed that Mr Smith had signed a statement dated 15 June 2011 giving his full permission and authority to him to sponsor his daughters “while living in Bahrain”.[2] Mr Smith’s permission was necessary so that Adrienne and Emily could be permitted to continue to live in Bahrain as dependants of Mr Barrie. Mr Barrie’s sponsorship had been provided by his company, of which he is part owner has supported and provided for them in Bahrain. In 2013, Mr Smith, who now lives in the United States of America (USA), stopped providing any financial support for his daughters under the order made by the South African court. Since then, Mr Barrie has financially supported Adrienne and Emily as well as providing care and guidance. He regards them as his own daughters and they regard him as their father with deep love and affection.
[2] Exhibit D
In the four years preceding Ms Barrie’s application for Australian citizenship on 27 January 2017, she had been in Australia for a total of 78 days. Based on her visa history and movement records maintained by the Department, I find that those days were accumulated over two separate visits to Australia: 13 July 2014 to 18 August 2014 and 6 July 2016 to 15 August 2016. In that same period, Ms Barrie was absent from Australia on 1383 days.[3] Ms Barrie was in Australia for 41 days and absent for 325 days in the one year period before she applied for Australian citizenship.[4]
[3] Exhibit 2
[4] Exhibit 2
In completing her application form, Ms Barrie set out the countries she had visited between 1 February 2000 and the date she completed her application. Apart from travelling to Australia twice, in the four year period following 27 January 2013, Ms Barrie visited South Africa from 7 July 2013 to 14 August 2013 (39 days), France from 28 March 2015 to 4 April 2015 (8 days), USA from 8 July 2015 and 15 August 2015 (39 days), South Africa from 12 December 2015 to 1 January 2016 (21) days and France from 23 March 2016 to 31 March 2016 (9 days). The total of the periods shown in Barrie’s application in the relevant four year period is 116 days. The visits to South Africa were undertaken to visit her family. Her mother in law took the family to Hawaii for a holiday and that accounts for one trip to the USA.
In the four year period preceding Ms Barrie’s application for Australian citizenship, the Department’s visa history and movement records show that Adrienne and Emily have each been in Australia for 30 days and absent for 1,431.[5] Those 30 days were accumulated over one visit to Australia: 25 July 2016 to 23 August 2016. Therefore, they were the only days that they were in Australia in the 12 month period before their mother lodged her application on 27 January 2017.
[5] Exhibits 3 and 4
LEGISLATIVE BACKGROUND
The AC Act sets out two primary avenues by which a person may become an Australian citizen. The first is by automatic acquisition of Australian citizenship and is the subject of Division 1 of Part 2 of the AC Act. It provides for acquisition by birth, adoption, abandonment and incorporation of territory as part of Australia and is not relevant in this case. The second avenue is acquisition of Australian citizenship by application. It is the subject of Division 2 of Part 2 and provides four different paths by which citizenship may be acquired by application. One of those paths is citizenship by conferral, which is the subject of Subdivision B of Division 2, and it is the path is relevant in this case.
Section 19G states that a person may be eligible for Australian citizenship under Subdivision B in seven different situations. The situation that is relevant in this case arises if a person applying for Australian citizenship has satisfied the general eligibility criteria and has successfully completed a citizenship test. Even if an applicant for citizenship is eligible, the Minister may be required to refuse his or her application on grounds relating to:
(1)non-satisfaction of identity: s 24(3); or
(2)national security: 24(4) or (4C); or
(3)non-presence in Australia: s 24(5); or
(4)offences: s 24(6); or
(5)cessation of citizenship: 24(7).
A person may also need to make a pledge of commitment to become an Australian citizen: ss 26 and 27.
I will begin with Ms Barrie’s eligibility for Australian citizenship. General eligibility requirements are set out in s 21(2). The only requirement in issue is whether she:
“satisfies the general residence requirement (see section 22) or the special residence requirement (see section 22A or 22B), or satisfies the defence service requirement (see section 23), at the time the person made the application …”[6]
[6] AC Act; s 21(2)(c)
Section 22A sets out the special residence requirement and Ms Barrie has not suggested that she could meet its requirements. They are, in summary, that she is seeking to engage in an activity specified by the Minister under s 22C, her engagement in that activity would be of benefit to Australia, that she needs to be an Australian citizen in order to engage in that activity and that, in order for her to do so, there is insufficient time to satisfy the general residence requirement. In order to satisfy the defence service requirement, a person must have completed relevant defence service for at least 90 days in either the Permanent Forces of the Reserves or discharged from such service as medically unfit for that service because of service undertaken in the Permanent Forces or Reserves.
The general residence requirement is set out in s 22(1):
“Subject to this section, for the purposes of section 21 a person satisfies the general residence requirement if:
(a)the person was present in Australia for a period of 4 years immediately before the day the person made the application; and
(b)the person was not present in Australia as an unlawful non-citizen at any time during that 4 year period; and
(c)the person was present in Australia as a permanent resident for the period of 12 months immediately before the day the person made the application.”
There is no suggestion that Ms Barrie does not satisfy the requirements of s 22(1)(b) because, as the holder of a permanent visa and valid RRVs, she has not been an unlawful non-citizen. There is no dispute, however, that she does not meet the requirements of ss 22(1)(a) and (c). 22(1A) and (1B) ameliorate those requirements when they provide:
“(1A) If:
(a)the person was absent from Australia for a part of the period of 4 years immediately before the day the person made the application; and
(b)the total period of the absence or absences was not more than 12 months;
then, for the purposes of paragraph (1)(a), the person is taken to have been present in Australia during each period of absence.
(1B) If:
(a)the person was absent from Australia for a part of the period of 12 months immediately before the day the person made the application; and
(b)the total period of absence or absences was not more than 90 days; and
(c)the person was a permanent resident during each period of absence;
then, for the purposes of paragraph (1)(c), the person is taken to have been present in Australia as a permanent resident during each period of absence.”
There is no suggestion by either party that Ms Barrie’s circumstances meet either the general residence requirements in s 22(1)(b) or (1B). Sections 22(1C) to (11) provide further amelioration of the requirements of s 22(1) but only one s 22(9) is relevant in Ms Barrie’s circumstances. It provides:
“If the person is the spouse, de facto partner or surviving spouse or de facto partner of an Australian citizen at the time the person made the application, the Minister may treat a period as one in which the person was present in Australia as a permanent resident if:
(a)the person was a spouse of de facto partner of that Australian during that period; and
(b)the person was not present in Australia during that period; and
(c)the person was a permanent resident during that period; and
(d)the Minister is satisfied that the person had a close and continuing association with Australia during that period.”[7]
[7] As Ms Barrie’s spouse is surviving, the provisions of s 22(10) do not apply.
If Ms Barrie meets the criteria in s 22(9) in respect of a period, “… the Minister may treat … [that] period as one in which … [she] was present in Australia as a permanent resident …”. If that period brings her within the four year ad 12 month periods specified in s 22(1) as modified by provisions of s 22 such as ss 22(1A) and (1B), she will have satisfied the general residence requirement. That will mean that she has satisfied the general eligibility criteria set out in s 21(2).
Satisfaction of the general eligibility criteria does not mean that the Minister will necessarily approve Ms Barrie’s application for Australian citizenship as a matter of course. Section 24 makes it clear that, while the Minister must not approve a person’s becoming an Australian citizen unless he or she is eligible under, among others, s 21(2) of the AC Act,[8] the Minister:
“… may refuse to approve the person becoming an Australian citizen despite the person being eligible to become an Australian citizen under subsection 21(2), (3), (4), (5), (6) or (7).”[9]
[8] Act Act; s 24(1A)
[9] AC Act; s 24(2)
The applications by Adrienne and Emily raise s 21(5) of the AC Act. It provides:
“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; and
(ii) at the time of the Minister’s decision on the application.”
CITIZENSHIP POLICY
The Citizenship Policy has been put forward by the Minister but, as I have only an extract of it, I am not aware whether it is policy he has approved or whether it has been approved within his Department. Chapter 7A addresses the residence requirement of citizenship by conferral. In relation to s 22(9), it states:
“In all cases, applicants must provide evidence that they maintained close and continuing association with Australia while overseas. Factors that may demonstrate this close and continuing association with Australia include, but are not limited to:
·evidence that the person migrated to and established a home in Australia prior to the period overseas
·Australian citizen children
·long term relationship with Australian citizen spouse or de facto partner
·extended family in Australia
·regular return visits to Australia
·regular periods of residence in Australia
·intention to reside in Australia
·ownership of property in Australia
·evidence of income tax paid in Australia over the past four year [sic]
·evidence of active participation in Australian community based activities or organisations.
In assessing whether a person has a close and continuing association with Australia for the purposes of s 22(9)(d) more weight should be given to the listed factors if the person has been lawfully and physically present in Australia for at least 365 days in the four years immediately before making an application for Australian citizenship (including at least 90 days as a permanent resident). Less weight should be given to these factors if they have not been present in Australia for at least this period.”
This passage is consistent with the passage at [5.18] of the Australian Citizenship Instructions (ACIs) issued on 1 July 2014. They are also made in the exercise of executive power.[10]
[10] See Minister for Home Affairs v G [2019] FCAFC 79; Murphy, Moschinsky and O’Callaghan JJ
CONSIDERATION
I accept that Ms Barrie has strong relationships with those members of her family as well as with members of her husband’s family, who live in Australia. As she says, she is very family oriented and that is apparent from the photographs she attached to her statement and from her evidence. Family also means a great deal to her husband. They want their children to be treated equally and think it unfair that their son has Australian citizenship but that their daughters do not. Ms Barrie also wants to be able to come and go as she wishes to visit her extended family in Australia. She finds the process of obtaining an RRV slow and expensive. While all of these concerns are understandable, I must decide the matter according to the AC Act and, in particular in this case, according to ss 21(2)(c), 22(1) and 22(9).
Section 21(2)(c) requires that Ms Barrie satisfy the general residence requirement. There is no discretion to waive its requirements although s 22 does set out circumstances in which its requirements are ameliorated. Section 22(9) sets out one of those ameliorating circumstances. Only s 22(9)(d) is in issue.
The role of policy
On behalf of the Minister, Ms Nicholson submitted that the Citizenship Policy provides policy guidance to decision-makers undertaking decision-making functions under the AC Act. Referring to Re Drake and Minister for Immigration and Ethnic Affairs (No 2)[11] (Drake), she submitted that the Tribunal will generally apply policy, such as that in the Citizenship Policy, unless there are cogent reasons not to do so. There are no reasons in this case to depart from it.
[11] [1979] AATA 179; (1979) 2 ALD 634 at 640
The reference to “cogent reasons” comes from a passage in the reasons for decision of Brennan J in Drake considering Ministerial policy relating to a decision made under s 12 of the Migration Act 1958 (Migration Act). Section 12 provided that the Minister might order the deportation of an alien who had been convicted of certain crimes. It was a discretionary decision that the Minister was required to make. His Honour considered various factors relevant in deciding how the discretion should be exercised concluding:
“ The multiplicity of factors for consideration in each case evidently precluded the parliament, as it precludes the Minister, from defining principles of universal application to govern the exercise of the power in every case. In the absence of such principles, the exercise of the power must depend upon the circumstances of each case and the weight then to be accorded to the relevant factors – whether factors emerging from the evidence, or factors revealed by a perception of the relevant interests of Australia. …”[12]
[12] [1979] AATA 179; (1979) 2 ALD 634 at 638-639
When a discretionary power is conferred on more than one decision-maker, his Honour continued, a tendency to inconsistency in making decisions may appear:
“ Inconsistency is not merely inelegant; it brings the process of deciding into disrepute, suggesting an arbitrariness which is incompatible with commonly accepted notions of justice. …
…
There are powerful considerations in favour of a Minister adopting a guiding policy. It can serve to focus attention on the purpose which the exercise of the discretion is calculated to achieve, and thereby to assist the Minister and others to see more clearly, in each case, the desirability of exercising the power in one way or another. Decision-making is facilitated by the guidance given by an adopted policy, and the integrity of decision-making in particular cases is the better assured if decisions can be tested against such a policy. By diminishing the importance of individual predilection, an adopted policy can diminish the inconsistencies which might otherwise appear in a series of decisions, and enhance the sense of satisfaction with the fairness and continuity of the administrative process.
Of course, a policy must be consistent with the statute. It must allow the Minister to take into account the relevant circumstances, it must not require him to take into account irrelevant circumstances, and it must not serve a purpose foreign to the purpose for which the discretionary power was created. A policy which contravenes these criteria would be inconsistent with the statute (see Murphyores Incorporated Ltd v The Commonwealth (1976) 136 CLR 1 …). … ”[13]
[13] [1979] AATA 179; (1979) 2 ALD 634 at 639 -640
The High Court considered these principles in Plaintiff M64/2015 v Minister for Immigration and Border Protection[14] (MH64) saying:
“ Policy guidelines like the priorities policy promote values of consistency and rationality in decision-making, and the principle that administrative decision-makers should treat like cases alike …. In particular, policies or guidelines may help to promote consistency in ‘high volume decision-making’ …, such as the determination of applications for Subclass 202 visas. Thus in Re Drake and Minister for Immigration and Ethnic Affairs (No 2) …, Brennan J, as President of the Administrative Appeals Tribunal, said that ‘[n]ot only is it lawful for the Minister to form a guiding policy; its promulgation is desirable’ because the adoption of a guiding policy serves, among other things, to assure the integrity of administrative decision-making by ‘diminishing the importance of individual predilection’ and ‘the inconsistencies which might otherwise appear in a series of decisions’ …. The subjectivity of the evaluation by a decision-maker in a case such as the present highlights the importance of guidelines. The importance of avoiding individual predilection and inconsistency in making choices between a large number of generally qualified candidates by the application of the open-textured criterion of ‘compelling reasons for giving special consideration’ is readily apparent.”[15]
[14] [2015] HCA 50; (2015) 258 CLR 173; 327 ALR 8; 148 ALD 206; French CJ, Bell, Gageler, Keane and Gordon JJ
[15] [2015] HCA 50; (2015) 258 CLR 173; 327 ALR 8; 148 ALD 206 at [54]; 194; 21; 219 per French CJ, Bell, Keane and Gordon JJ (citations omitted). Gageler J agreed substantially: [2015] HCA 50; (2015) 258 CLR 173; 327 ALR 8; 148 ALD 206 at [62]; 196; 23; 221 (citations omitted)
Returning to the application of a Ministerial policy in a particular case, Brennan J said in Drake:
“ These considerations warrant the Tribunal’s adoption of a practice of applying lawful ministerial policy, unless there are cogent reasons to the contrary. If it were shown that the application of ministerial policy would work an injustice in a particular case, a cogent reason would be shown, for consistency is not preferable to justice. Injustice, in the context of ss 12 and 13 of the Migration Act, must mean a disproportion between the detriment suffered by those affected by the execution of a deportation order and the benefit which might reasonably be expected to result to the community at large or to particular individuals in the community if the order were affirmed.
In my view, the Tribunal, being entitled to determine its own practice in respect of the part which the ministerial policy plays in the making of Tribunal decisions, should adopt the following practice.
When the Tribunal is reviewing the exercise of a discretionary power reposed in a Minister, and the Minister has adopted a general policy to guide him in the exercise of the power, the Tribunal will ordinarily apply that policy in reviewing the decision, unless the policy is unlawful or unless its application tends to produce an unjust decision in the circumstances of the particular case. Where the policy would ordinarily be applied, an argument against the policy or against its application in the particular case will be considered, but cogent reasons will have to be shown against its application, especially if the policy is shown to have been exposed to parliamentary scrutiny.
The general practice of the Tribunal will not preclude the Tribunal from making appropriate observations on ministerial policy, and thus contributing the benefit of its experience to the growth or modification of general policy; but the practice is intended to leave to the Minister the political responsibility for broad policy, to permit the Tribunal to function as an adjudicative tribunal rather than as a political policy-maker, and to facilitate the making of consistent decisions in the exercise of the same discretionary power.”[16]
[16] [1979] AATA 179; (1979) 2 ALD 634 at 645
When considered in the light of subsequent cases in various contexts, I suggest that there are several matters to be kept in mind when applying the principles set out by Brennan J in Drake. The first is that his Honour expressed them in the context of the exercise of discretionary powers. The particular emphasis in Drake is on policy developed by a Minister and the consequent parliamentary and political supervision that attends the promulgation of policy at that level. The principles apply also to policy developed at levels other than Ministerial level. It may be thought that the weight given to policy may vary according to its author but, provided it withstands scrutiny for lawfulness and is applied in accordance with the principles set out in Drake, it is difficult to see that there is a basis for treating policy developed under different hands in different ways.
The principles do not apply to the interpretation of the enactment conferring the discretionary power either in relation to the parameters of that power or otherwise.[17] The Tribunal must first interpret the relevant enactment to identify the decision-maker’s powers and whether those powers are discretionary or not. If a power is discretionary, it is necessary to determine the scope of the discretion given to a decision-maker.[18] The power to make guidelines is determined by reference to “... the subject matter, scope and purpose of the statute ...”.[19] If a decision-maker is free to adopt a policy to guide it in the exercise of its discretion, its policy must:
(1) be consistent with the Act;[20]
(2)not require the decision-maker to take irrelevant circumstances into account;[21] and
(3)“... leave ... [the decision-maker] free to consider the unique circumstances of each case ... [It] does not control the making of decisions ... [but] is informative of the standards and values which a ... [decision-maker] usually applies. ...”.[22]
[17] Port of Brisbane Corporation v Deputy Commissioner of Taxation [2004] FCA 1232; (2004) 81 ALD 549; 140 FCR 375; at 550; 386 per Moore J
[18] Coal and Allied Operations Pty Ltd v Australian Industrial Relations Commission and Others [2000] HCA 47; (2000) 203 CLR 194; 174 ALR 585 at 205; 591 and see also Drake v Minister for Immigration and Ethnic Affairs (1979) 24 ALR 577; 2 ALD 60 at 590; 70 per Bowen CJ and Deane J and 602; 80
[19] Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40; (1986) 162 CLR 24; 66 ALR 299 at 40; 309 per Mason J. See also R v Australian Broadcasting Tribunal; Ex parte 2HD Pty Ltd [1979] HCA 62; (1979) 144 CLR 45; 27 ALR 321 at 49; 325 per Stephen, Mason, Murphy, Aickin and Wilson JJ citing with approval Water Conservation and Irrigation Commission (NSW) v Browning [1947] HCA 21; (1947) 74 CLR 492 at 505
[20] Re Drake and Minister for Immigration and Ethnic Affairs (No. 2) [1979] AATA 179; (1979) 2 ALD 634 at 640 per Brennan J
[21] Re Drake and Minister for Immigration and Ethnic Affairs (No. 2) [1979] AATA 179; (1979) 2 ALD 634 at 641
[22] Re Drake and Minister for Immigration and Ethnic Affairs (No. 2) [1979] AATA 179; (1979) 2 ALD 634 at 641 and see also the general discussion of the principles by Mr SC Fisher, Member, in Re Gray and Australian Securities and Investments Commission [2004] AATA 1235 and, more recently, the Full Court in Minister for Home Affairs v G [2019] FCAFC 79 at [59]
In his separate judgment in M64, Gageler J addressed what it means for a decision-maker to be “satisfied” of a particular criterion and the place of policy in reaching the state of satisfaction. In that case, the criterion prescribed by cl 202.222(2) of Schedule 2 to the Migration Regulations 1994 (Migration Regulations) that had to be met at the time of the grant of a Refugee and Humanitarian (Class XB) (Subclass 201) visa was that “the Minister is satisfied was that there are compelling reasons for giving special consideration to granting the applicant a permanent visa”. In deciding that, the Minister was required to have regard to the individual and cumulative effect of four considerations set out in cl 202.222(2)(a)-(d). The first three paragraphs required consideration to be given to the degree of discrimination to which the applicant had been subject in his or her home country, the extent of his of her connection with Australia and whether there was another country that could provide for the applicant’s settlement and protection from discrimination. The fourth set out in cl 201.222(d) required regard to be had to the capacity of the Australia community to provide for the permanent settlement of persons such as the applicant in Australia.
Gageler J first addressed what it means to be “satisfied”:
“ A statutory requirement that a decision-maker arrive at a state of satisfaction as a precondition to an exercise of a statutory power, like a requirement that a decision-maker hold a belief as a precondition to an exercise of a statutory power, necessitates that the decision-maker ‘feel an actual persuasion’ … – ‘an inclination of the mind towards assenting to, rather than rejecting, a proposition’ …. A statutory requirement that a decision-maker be satisfied that there are ‘compelling reasons’ for taking particular action is a requirement that the decision-maker be persuaded that there are reasons in favour of taking that action which, when weighed within the context of the particular statutory scheme, are irresistible ….”[23]
[23] [2015] HCA 50; (2015) 258 CLR 173; 327 ALR 8; 148 ALD 206 at [64]; 196-197; 23; 221 (citations omitted)
An evaluative judgment brings with it an exercise of discretion. In the context of a decision under cl 202.222(2)(d), an evaluative judgment was required. It was:
“… for the Minister or his or her delegate to determine both the category of persons who meet the description of ‘persons such as the applicant’ and the capacity of the Australian community to provide for the permanent settlement in Australia of persons within that category. Given that the capacity of the Australian community to provide for the permanent settlement in Australia of any category of persons must always be finite, it must also be for the Minister or his or her delegate to determine how to prioritise allocation of that finite capacity amongst persons within that category for the purpose of coming to the requisite state of satisfaction as to whether there are compelling reasons for giving special consideration to granting a permanent visa to a particular applicant within that category.”
It is open to the Minister in the exercise of non-statutory executive power to lay down a policy for the guidance of his or her delegates in making those determinations. … Each applicant must always be entitled to have his or her application for the exercise of a decision-making power determined on its merits. But the merits of an application cannot always adequately be considered by reference to the circumstances of the applicant alone.
Where, as here, the statutory question is whether the decision-maker should be persuaded that there are compelling reasons for giving special consideration to granting one of a finite number of permanent visas to a particular applicant, the correct or preferable decision in the individual case cannot be divorced from the correct or preferable decision across the range of cases in which an exercise of that decision-making power can be expected to be sought. Blinkered and individualised decision-making would be a recipe for maladministration.”[24]
[24] [2015] HCA 50; (2015) 258 CLR 173; 327 ALR 8; 148 ALD 206 at [67]-[69]; 197-198; 24-25; 222-223
The Citizenship Policy regarding section 22(9)(d) of the AC Act
These principles are relevant in considering s 22(9)(d). It also requires an evaluative judgment. It is a matter on which it is open for the Minister to lay down a policy for guidance of those exercising the power. Chapter 7 of the Citizenship Policy, as well as cl 5.18 of the ACIs, sets out a number of factors that may demonstrate a person’s close and continuing association with Australia. Neither, however, presumes to limit those factors. Given that there are number of circumstances and variations of circumstances in which people find themselves, it is difficult to think that a finite list could be compiled. The list of factors is said to include factors that “may demonstrate” a close and continuing association with Australia but a decision-maker is not limited by that list.
While the factors that are listed may demonstrate that an applicant has a close and continuing relationship with Australia, they do not explain what is meant by such a relationship. They cannot do that for they are the words used by Parliament and must be interpreted in light of the scope and purpose of the Act. A general statement of the scope and purpose of the Act is found in its Preamble:[25]
“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 those 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.”
[25] The Preamble forms part of the Act: Acts Interpretation Act 1901; s 13(2)(b)
In the case of Re Taher and Minister for Immigration and Border Protection[26] (Taher), Senior Member Fice had explored the significance of the residency requirement and the relevance of a person’s physical presence in Australia in considering the discretion under s 22(9). He said in Taher:
[26] [2013] AATA 917
“11. While the Citizenship Act does not set out the basis for why residency might be so important, it clearly has to do with an applicant’s association with Australia. In fact, the Revised Explanatory Memorandum to the Australian Citizenship Bill 2005 says this about the residency requirements:
The change in residence requirements from those previously outlined in the Australian Citizenship Act 1948 recognise the changes in the migration programme over the years which have resulted in an increasing number of people spending significant periods of time in Australia as temporary residents prior to becoming permanent residents.
In addition, it is important to note that Australian citizenship is a privilege not a right.
The Government is focused on ensuring that citizenship applicants have spent a reasonable period of time living in Australia so that they are familiar with the Australian way of life, and to appreciate the commitment that they are required to make to become citizens.
12. In case there is any doubt about the fact that the reference to being present in Australia for the period of 4 years and also the period of 12 months as a permanent resident before making an application (s. 22(1)) requires physical presence in Australia, the Revised Explanatory Memorandum states:
These provisions require the person to have been physically present in Australia for the entire period of 4 years immediately before the application is made.
13. The Preamble to the Citizenship Act also underscores the importance of community involvement. It provides:
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.
14. Accordingly, in my opinion, any dispensation from the residency requirements is not something which is granted lightly. Significant periods of physical presence in Australia are important.”
This passage from Taher does not give a definitive meaning to what is meant by a close and continuing relationship with Australia but it gives context and substance to the consideration of the concept under s 22(9)(d). That context is evident in the judgment of Jagot J in the case of Minister for Immigration and Border Protection v Tran[27] (Tran). In that case, Jagot J agreed with the principles that had been identified by Edmonds J in Kumar.[28] Her Honour went on to consider a submission made on behalf of the Minister to the effect that the Tribunal was precluded from considering an applicant’s contact with his or her extended family or from considering assets held jointly with his or her spouse. These were described by the Minister as “natural concomitants” of being married to an Australian citizen so that something more was required to establish a close and continuing relationship with Australia. Jagot J rejected that description and also rejected any distinction between so-called natural concomitants of marriage to an Australian citizen and matters falling outside that description but equally relevant in determining whether the applicant for citizenship has a close and continuing relationship with Australia. The Tribunal would not have erred, Jagot J decided, had it taken into account the nature and extent of Ms Tran’s connections to Australia through her relationship with her extended family and her joint ownership of eight properties.[29] She also rejected Ms Tran’s submission that the relevant length of time during which an applicant has been within and outside Australia in the relevant four year period is an irrelevant consideration. Nothing in the statutory scheme would support that, Jagot J said.[30]
[27] [2015] FCA 546; (2015) 232 FCR 540
[28] [2015] FCA 546; (2015) 232 FCR 540 at [8]-[9]; 543
[29] [2015] FCA 546; (2015) 232 FCR 540 at [18]-[22]; 546-547
[30] [2015] FCA 546; (2015) 232 FCR 540 at [29]; 549
Section 22(9)(d) and Ms Barrie’s circumstances
I find that Ms Barrie has a term deposit account with an Australian bank, which has a branch or branches in Bahrain and she uses her address in that country. She and her husband had a deposit account with another bank, which has branches in Australia and also in Bahrain. Again, they use their address in Bahrain. The Statements of Account provided by the Australian Taxation Office for the years of income for the periods from 1 July 2016, 5 September 2016 and 28 September 2017 to 25 July 2018 show that Ms Barrie has paid Australian withholding tax on interest earned as a non-resident.
Apart from her bank deposits, Ms Barrie’s only other asset in Australia is a two bedroom apartment in Melbourne that she has owned since November 2015. She has rented the apartment to tenants since a time shortly after she bought it. Although she now rents it on a month to month basis, rather than yearly as she did initially, Ms Barrie acknowledged that, even if she were to move with her family to Australia, the apartment would not accommodate her family of five. Her proposal that some of the family could live in her mother in law’s apartment in the same building is an option. It is not, though, an option that suggests that the apartment was purchased with an eye to its accommodating her family should they live in Australia.
I accept that both Mr and Ms Barrie have many members of their extended and combined families, who live in Australia. The photographs Ms Barrie submitted show a number of family gatherings and I accept that she sees many of them when she comes to Australia and that she uses social and other media to keep in touch with many, if not all, of them. She maintains contact with her mother in law and with her sister in law weekly and with others monthly. I accept that monthly is regular contact among members of the family outside the immediate circle of parents, grandparents and children.
Outside members of her family, I find that Ms Barrie does not have any connection with organisations or activities in Australia. She does not travel to Australia on a regular basis. The occasions on which she has travelled must be viewed against her travel elsewhere. The trips she took to Thailand in 2012 and to Hawaii in 2015 were holidays with her family and that of her mother in law. They show the importance of family to her and particularly those members based in Australia but they do not show the importance of Australia to her. In the four year period before she lodged her application on 27 January 2017, Ms Barrie spent at least 116 days in countries other than Bahrain or Australia and 78 days in Australia. Those days were accumulated over two visits in 2014 and then two years later in 2016. A total of 41 days were spent in Australia on that second trip and in the one year period preceding her application for Australian citizenship. Viewed overall, Ms Barrie’s travel schedule does not show a close and continuing association with Australia.
I understand that Mr and Ms Barrie have made enquiries regarding the enrolment of Adrienne and Emily in a private Victorian school. As they were not successful in gaining scholarships, the costs of having them attend the school were beyond what Mr and Ms Barrie felt able to afford. Their son’s application for enrolment at Mr Barrie’s alma mater has been accepted but whether he will ultimately be offered enrolment is a matter for the future. Their children’s schooling arrangements are not matters that show a close and continuing association with Australia.
Ms Barrie’s enquiries regarding employment she might find or businesses she might establish in Australia have been very preliminary in their nature. They consist of her visiting one nursery and obtaining information to the effect that she might, or might not, require further qualifications in Australia to work in early child education or child care. She has not made any enquiries with regulatory authorities as to their requirements or with educational institutions as to courses that would give her appropriate Australian qualifications.
Her plans for moving to Australia are dependent upon her husband’s selling his business. I accept that is his wish but I have no evidence as to the steps he has taken to attempt to sell it. I also accept that he has kept in touch with a friend in Victoria who operates a successful academy but he has not been offered a position with his friend.
In reaching this conclusion, I note that Mr Barrie’s father served in the Australian Army for two years between 1967 and 1969. He also served in Vietnam and died shortly after returning from Hodgkin’s Lymphoma. Ms Barrie is understandably proud of her husband’s late father. It is part of the history of the family she has married into but does not of itself give her a close and continuing relationship with Australia.
Mr and Ms Barrie’s son is an Australian citizen by reason of his father’s being an Australian citizen. He was born in Bahrain where Mr and Ms Barrie have established their home together for the past ten years or so. I accept that Mr and Ms Barrie are in a long term relationship that is stable and happy. I also accept that they would like to regard Australia as their home when Mr Barrie has sold his Academy and they have been offered suitable jobs in Melbourne. They acknowledge their connection with Australia by gathering with other expatriate Australians in Bahrain for occasions such as Australia Day and Anzac Day. Until the Academy is sold and they arrange employment in Australia, however, they intend to remain Bahrain where they will try to save so that they can provide their children with a comfortable future. Bahrain is their base from which they travel and only two of seven trips in the relevant four year period were to Australia.
Having regard to all of these matters, I am not satisfied that Ms Barrie had a close and continuing association with Australia, as opposed to Australians, in the four year period before she lodged her application. Therefore, I may not treat any period in either the four year or 12 month periods before she lodged her application on 27 January 2017 as periods in which she was in Australia as a permeant resident for the purposes of the general residence requirement in s 22(1). Therefore, she does not meet the criteria set out in s 21(2) of the AC Act and is not eligible to become an Australia citizen. That means that I affirm the decision of the delegate dated 27 February 2018 to refuse Ms Barrie’s application for citizenship under s 21 of the AC Act.
The Citizenship Policy regarding applicants aged under 16 years
Both Adrienne and Emily were holders of permanent visas and aged under 16 years of age when they applied for Australian citizenship on their mother’s application form as they were entitled to do. Therefore, at that time, they fulfilled the eligibility requirements of s 21(5) of the AC Act. Eligibility for Australian citizenship does not mean that the Minister will approve a person’s becoming an Australian citizen. Approval is the subject of s 24 and decisions made under it are discretionary.
The Citizenship Policy addresses the situation in which a responsible parent does not meet the eligibility criteria and his or her child has applied on the same form. It states that the child must be assessed in his or her own right. In that regard, the Citizenship Policy states, in so fa as it is relevant in this case, that they:
“… would usually not be approved under s 24 unless they are permanent residents at the time of the application and decision and under policy also are:
·under 16 when applying and living with a responsible parent who is an Australian citizen and who consents to the application …
…
·under 16 when applying, living with a responsible parent who is not an Australian citizen and consents to the application, and the child would otherwise suffer significant hardship or disadvantage (refer to Significant hardship or disadvantage/detriment) …
… ”[31]
[31] Citizenship Policy at 76; T documents; T7 at 114
The Citizenship Policy does not define the expression “responsible parent” but it is defined in s 6 of the AC Act. As any policy relevant to decision-making under an enactment must be consistent with that enactment, I understand the Citizenship Policy to use the expression in the way in which it is defined in s 6, which is:
“(1) For the purposes of this Act, a person is a responsible parent in relation to a child if and only if:
(a)the person is a parent of the child except where, because of orders made under the Family Law Act 1975, the person no longer has any parental responsibility for the child; or
(b)under a parenting order the child is to live with the person (whether or not the person is a parent of the child); or
(c)under a parenting order the person has parental responsibility for the child’s long-term or day-to-day care, welfare and development (whether or not the person is a parent of the child); or
(d)the person (whether or not a parent of the child) has guardianship or custody of the child, jointly or otherwise, under an Australian law or a foreign law, whether because of adoption, operation of law, an order of a court or otherwise.
(1A)In paragraph (1)(a):
parental responsibility has the same meaning as in Part VII of the Family Law Act 1975.
(2)Expressions used in paragraphs (1)(b) and (c) have the same meaning as in the Family Law Act 1975.”
The expression “parental responsibility” has the meaning given to it in s 61B of the Family Law Act 1975 (FLA):[32]
[32] FLA; s 4(1)
“In this Part, parental responsibility, in relation to a child, means all the duties, powers, responsibilities and authority which, by law, parents have in relation to children.”
A “parenting order” is defined in s 64B(1):[33]
[33] FLA; s 4(1)
“A parenting order is:
(a) an order under this Part (including an order until further order) dealing with a matter mentioned in subsection (2); or
(b) an order under this Part discharging, varying, suspending or reviving an order, or part of an order, described in paragraph (a).
However, a declaration or order under Subdivision E of Division 12 is not a parenting order.”
The matters mentioned in s 64B(2) include the person(s) with whom the child is to live, the time a child is to spend with another person(s), the allocation of parental responsibility for a child and, if two or more persons share that responsibility, the form of consultations about decisions to be made in exercising it, the communication a child is to have with another person(s) and maintenance of the child.
I have also had regard to Article 3.1 of the Convention on the Rights of the Child (CRC), which entered into force on 2 September 1990 and which, subject to a qualification that is not relevant in this context, Australia ratified on 17 December 1990. It 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 interests of the child shall be a primary consideration.”
Adrienne and Emily’s circumstances
Section 24 of the AC Act makes it clear that the Minister may not approve a person’s becoming an Australian citizen unless he or she is eligible to do so under ss 21(2) to (7),[34] the Minister is satisfied of his or her identity,[35] an adverse or qualified security assessment is in force under the Australian Security Intelligence Organisation Act 1979,[36] has been convicted of certain offences,[37] when proceedings for an offence against an Australian law are pending[38] or the person is not in Australia.[39] Section 24(2A) underlines that the power given by s 24(1) to approve, or refuse to approve, a person’s becoming an Australian citizen is a discretionary power. It provides that the Minister may refuse approval despite a person’s being eligible under s 21. Apart from those specific matters, s 24(1) does not provide any guidelines by which the Minister is to exercise the discretion.
[34] AC Act; s 24(1A)
[35] AC Act; s 24(3)
[36] AC Act; s
[37] AC Act; ss 24(4A) to (4C) and (6)(b) to (h)
[38] AC Act; s 24(6)(a)
[39] AC Act; s 24(5)
For the reasons I have given above, it is appropriate to have regard to the Citizenship Policy, which sets out the Minister’s views as to relevant considerations in exercising the discretion under s 24 when a person is under the age of 16 years and so eligible under s 21(5). I note that s 21(5) does not base eligibility on any residence requirement or that he or she have a close association with Australia. It is based solely on age and on the person’s being a permanent resident. In light of that, I am of the view that it is not relevant to have regard to any factors that relate to residency or any close and continuing association with Australia. The Citizenship Policy takes the same approach and makes no such reference.
The relevant passage of the Citizenship Policy is focused on the care of the child, the arrangements underpinning that care, the status of the carer and the consent of the carer. These factors are clearly founded in Article 3.1 of the CRC and on the best interests of the child. Although that is not expressed to be a relevant factor in the AC Act:
“ It is well established that the provisions of an international treaty to which Australia is a party do not form part of Australian law unless those provisions have been validly incorporated into our municipal law by statute ... This principle has its foundation in the proposition that in our constitutional system the making and ratification of treaties fall within the province of the Executive in the exercise of its prerogative power whereas the making and the alteration of the law fall within the province of Parliament, not the Executive ... So, a treaty which has not been incorporated into our municipal law cannot operate as a direct source of individual rights and obligations under that law. ...
But the fact that the Convention has not been incorporated into Australian law does not mean that its ratification holds no significance for Australian law. Where a statute or subordinate legislation is ambiguous, the courts should favour that construction which accords with Australia’s obligations under a treaty or international convention to which Australia is a party ..., at least in those cases in which the legislation is enacted after, or in contemplation of, entry into, or ratification of, the relevant international instrument. That is because Parliament, prima facie, intends to give effect to Australia’s obligations under international law.
It is accepted that a statute is to be interpreted and applied, as far as its language permits, so that it is in conformity and not in conflict with the established rules of international law .... The form in which this principle has been expressed might be thought to lend support to the view that the proposition enunciated in the preceding paragraph should be stated so as to require the courts to favour a construction, as far as the language of the legislation permits, that is in conformity and not in conflict with Australia's international obligations. That indeed is how we would regard the proposition as stated in the preceding paragraph. In this context, there are strong reasons for rejecting a narrow conception of ambiguity. If the language of the legislation is susceptible of a construction which is consistent with the terms of the international instrument and the obligations which it imposes on Australia, then that construction should prevail. So expressed, the principle is no more than a canon of construction and does not import the terms of the treaty or convention into our municipal law as a source of individual rights and obligations ....”[40]
[40] Minister for Immigration and Ethnic Affairs v Teoh [1995] HCA 20; (1995) 183 CLR 273; 128 ALR 353; 39 ALD 206 at [25]-[;27]; 286-288; 361-362; 213-214 (citations omitted) per Mason CJ and Deane J
The analysis of Mason CJ and Deane J led them to a consideration of whether the CRC is relevant to the exercise of a discretionary power. In particular, does the CRC give rise to a legitimate expectation that a decision-maker will exercise the power in conformity with it? Their Honours answered this question in the affirmative but went on to explain that:
“ The existence of a legitimate expectation that a decision-maker will act in a particular way does not necessarily compel him or her to act in that way. That is the difference between a legitimate expectation and a binding rule of law. To regard a legitimate expectation as requiring the decision-maker to act in a particular way is tantamount to treating it as a rule of law. It incorporates the provisions of the unincorporated convention into our municipal law by the back door. …
But, if a decision-maker proposes to make a decision inconsistent with a legitimate expectation, procedural fairness requires that the persons affected should be given notice and an adequate opportunity of presenting a case against the taking of such a course. …”[41]
[41] 1995] HCA 20; (1995) 183 CLR 273; 128 ALR 353; 39 ALD 206 at [36]-[37]; 291-292; 365; 217
In this case, the CRC gives rise to a legitimate expectation that the Minister and, on review, the Tribunal, will have regard to it. Adrienne and Emily have been given both notice and an adequate opportunity to present their case knowing that the delegate found that a decision not to approve their becoming Australian citizens would not be against their best interests.
I find that Adrienne and Emily love Mr Barrie as their father and that he stands, for practical purposes in their day to day lives, in loco parentis to them i.e. in the place of a parent. Together with their mother and brother, Adrienne, Emily and Mr Barrie are a family unit. Mr Barrie is an Australian citizen but he is not a “responsible parent” as that expression is defined in s 6 of the AC Act and used in the Citizenship Policy. Neither the AC Act nor the FLA defines the word “parent” but it is apparent from the context in which it appears in s 6 that it is used in its normal sense i.e. the father or mother of a child.[42]
[42] Chambers 21st Century Dictionary (1999, reprinted 2004) (Chambers)
On that view of the word “parent”, Mr Barrie does not come within s 6(1)(a) of the definition of “responsible parent”. He does not come within ss 6(1)(b) or (c) either for there is no parenting order from any court or other competent body that Adrienne and Emily are to live with him or that, under such an order, he has parental responsibility in relation to them. The document signed by Mr Smith giving his permission and authority to Mr Barrie to “sponsor” Adrienne and Emily while living in Bahrain is not a parenting order. I have no evidence of the law in Bahrain and, in particular, no evidence to the effect that a parent’s giving permission and authority to another to sponsor his or he child means that the other person has guardianship or custody of that child according to the law of Bahrain.[43]
[43] Evidence may be given of the law of a foreign country: Evidence Act 1995; ss 174 and 175
Adrienne and Emily live with both Mr Barrie and their mother. Ms Barrie, who is not an Australian citizen, consents to their being Australian citizens but I am not satisfied that Adrienne and Emily would suffer significant hardship or disadvantage if they were not Australian citizens. They have spent most of their lives in Bahrain and have undertaken their schooling either there or in Dubai. As permanent residents, they are able to undertake their schooling in Australia and they have already explored that possibility as is apparent from their applying for scholarships at a private school.
Apart from their schooling, as permanent residents of Australia, they are entitled to come to Australia and to live here and to pursue educational and employment opportunities that are available to any other permanent resident. There are very few restrictions that apply to permanent residents and not to Australian citizens. While in Australia, they have the same protection and rights as an Australian citizen. On the basis of their mother’s evidence, I find that the greatest restriction is the need to obtain a RRV as a permanent resident. An RRV may be given for varying lengths of time and it may be that the RRVs would be granted for a longer period so that multiple trips to and from Australia could be made on them.
As matters stand, I find that Mr Barrie has received no firm offers or even interest in the purchase of his Academy. I accept that, until he has sold that business, the family will remain in Bahrain where they can consolidate their savings and plan for the family’s future. They are a tight knit family that wants to stay together. Although Ms Barrie has previously explored the option of sending Adrienne and Emily to boarding schools, the family has decided that, at least for the moment, its best interests lie in Bahrain. There is nothing in the evidence that suggests that, in their circumstances, Adrienne and Emily will suffer any hardship or detriment if they do not have Australian citizenship.
The best interests of Adrienne and Emily lie with being with their family. They have extended family living in Australia. Their mother maintains relationships with their Australian-based family but I am not satisfied that Adrienne and Emily do so. While they identify as having family living in Australia, I am not satisfied that their link with the extended family is so strong that not granting citizenship would be adverse to their best interests. Even if they do not have citizenship, they will continue to be able to visit their family and to reside. Their right to do so will be subject only to their obtaining RRVs from time to time. Their permanent resident status will enable Adrienne and Emily to travel to Australia with their mother and Mr Barrie, whom they regard as their father, and their brother. Like their mother, Adrienne and Emily will have the same protections and rights under Australian law when in Australia as their brother and Mr Barrie.
Having regard to all of these matters, I have decided that the best interests of Adrienne and Emily do not require them to have Australian citizenship at this time. Their best interests are adequately served by their being permanent residents even if that status carries with it the inconvenience and cost of obtaining RRVs. Therefore, I affirm the decision made by the delegate not to approve their applications for Australian citizenship.
| I certify that the preceding seventy (70) paragraphs are a true copy of the reasons for the decision herein of Deputy President S A Forgie |
.............[sgd]...........................................................
Associate
Dated: 18 February 2020
| Heard: | 10 July 2019 |
| Applicants: | Self-represented |
| Solicitor for the Respondent: | Ms Danielle Nicholson, Sparke Helmore |
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