Bhavsar and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Citizenship)
[2020] AATA 3438
•4 September 2020
Bhavsar and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Citizenship) [2020] AATA 3438 (4 September 2020)
Division:GENERAL DIVISION
File Number(s): 2019/2304, 2019/7673
Re:Brian Alpesh Bhavsar
APPLICANT
AndMinister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
RESPONDENT
DECISION
Tribunal:Deputy President Boyle
Date:4 September 2020
Place:Perth
The decisions of the delegate dated 10 April 2019 and 28 October 2019 are affirmed.
..................................[SGD]...................................
Deputy President Boyle
CATCHWORDS
CITIZENSHIP – citizenship by conferral – relevant policy applying to applicant in the circumstances – inconsistency between differing policy/procedure documents – applicant aged 16 to 17 years old at time of application – residency requirements – significant hardship, disadvantage or detriment – HECS-HELP – reviewable decision affirmed
LEGISLATION
Australian Citizenship Act 2007 (Cth) – ss 5(1)(a), 21(1), 21(2), 21(5), 22(1), 22(1A), 22(1B), 24(1), 24(2)
Migration Act 1958 (Cth)
CASES
Drake and Minister for Immigration and Ethnic Affairs (No. 2) (1979) 2 ALD 634
G v Minister for Immigration and Border Protection [2018] FCA 1229
Galesloot and Minister for Home Affairs [2018] AATA 4450
Hneidi v Minister for Immigration and Citizenship [2010] FCAFC 20
Kakos and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] AATA 571
LNRD and RFKS and Minister for Home Affairs [2019] AATA 4247
Minister for Home Affairs v G [2019] FCAFC 79
Odesho and Minister for Home Affairs [2019] AATA 3946
RRML and XJFZ and Minister for Home Affairs [2020] AATA 1654
Sibai and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] AATA 957SECONDARY MATERIALS
Australian Citizenship Procedural Instructions, Department of Immigration and Border Protection – 1, 4, 4.1, 4.4, 5.12
Convention on the Rights of the Child, opened for signature 20 November 1989, 1577 UTS 3 (entered into force 2 September 1990) – Article 3.1
Citizenship Policy, Department of Immigration and Border Protection, 1 June 2016 – pages 1, 75, 76, 77, Chapter 3, 7
REASONS FOR DECISION
Deputy President Boyle
4 September 2020
THE APPLICATIONS
The Applicant seeks the review of two decisions of delegates of the Respondent, one dated
10 April 2019 and the other dated 28 October 2019[1] to refuse to approve the Applicant’s applications for citizenship by conferral under s 21(1) of the Australian Citizenship Act 2007 (Cth) (the Act). The Applicant made two applications for citizenship by conferral, which were in the same form as each other, and the decisions of the delegates of the Respondent in each application were made on the same grounds. The Applicant lodged separate applications in the Tribunal for reviews of the decisions. Because the decisions, issues and evidence in both matters were materially the same, orders were made on 12 February 2020 joining the matters. They were heard together.
[1] T2 in both bundles of T documents.
In each case, although the Minister was satisfied that the Applicant met the eligibility criteria in s 21(5) of the Act, the Minister exercised his discretion under s 24(2) of the Act to refuse the application because, applying the Citizenship Policy (the Policy), the Applicant did not meet the residence requirement.
BACKGROUND
The Applicant was born on 16 September 2001 in Mumbai, India.
On 5 September 2018 the Applicant arrived in Australia as the holder of a Class AH Subclass 101 Child (permanent) visa. The child visa is a ‘permanent visa’ within the meaning of the Migration Act 1958 (Cth). The Applicant is, therefore, a ‘permanent resident’ within the meaning of that term in s 5(1)(a) of the Act.
The Applicant had previously been granted a Class TU Subclass 573 Higher Education Sector (temporary) visa on 7 September 2006, however, that visa ceased on 15 March 2008 prior to his arrival in Australia.
On 11 September 2018 the Applicant applied for Australian citizenship by conferral under
s 21(1) of the Act. The Applicant was 16 years old when he made that application.
By decision dated 10 April 2019 the delegate of the Respondent refused the application for citizenship by conferral. The Applicant seeks review of that decision in matter 2019/2304.On 9 September 2019 the Applicant made another application for Australian citizenship by conferral under s 21(1) of the Act. The Applicant was 17 years of age at the time of the application for citizenship. He was 18 years old when the Minister’s delegate made the decision to refuse citizenship by conferral on 28 October 2019. The Applicant seeks review of that decision in matter 2019/7673.
THE ISSUES
The Respondent accepts that the Applicant satisfies s 21(5) of the Act.
The issue to be determined is whether the Tribunal should exercise the discretion in s 24(2) of the Act to refuse to approve the Applicant becoming an Australia citizen despite his eligibility under s 21(5).
THE HEARING AND THE EVIDENCE
The matters were heard together on 8 June 2020. The Applicant was represented by
Mr A Garg, whom the Tribunal understands to be a migration agent, and the Respondent was represented by Mr A Gerrard. The Applicant was the only witness to give evidence at the hearing. His evidence was given through an interpreter.The following documents were before the Tribunal:
(a)Applicant’s Statement of Facts, Issues and Contentions, dated 15 April 2020 (ASFIC) (Exhibit A1 – Matter 2019/7673);
(b)Legal Aid letter dated 4 October 2019 (Exhibit A2 – Matter 2019/2304);
(c)Applicant’s Submissions, dated 9 September 2019 (Exhibit A3 – Matter 2019/7673);
(d)
Administrative Appeals Tribunal, Migration Review Division decision, dated
31 May 2016 (Exhibit A4 – Matter 2019/7673);
(e)Ms Sital Bhavsar’s Citizenship certificate, dated 19 October 2019 (Exhibit A5 – Matter 2019/7673);
(f)Ms Sital Bhavsar’s movement records, received 15 April 2020 (Exhibit A6 – Matter 2019/7673);
(g)Email exchanges between the Applicant and Respondent, received 15 April 2020 (Exhibit A7 – Matter 2019/7673);
(h)Respondent’s Statement of Facts, Issues and Contentions, dated 18 February 2020 (RSPIC) (Exhibit R1 – Matter 2019/7673);
(i)Respondent’s Statement of Facts, Issues and Contentions, dated 16 December 2019 (Exhibit R2 – Matter 2019/2304);
(j)Applicant’s statutory declaration, dated 4 October 2019 (Exhibit R3 – Matter 2019/2304); and
(k)Ms Sital Bhavsar’s statutory declaration, dated 3 October 2019 (Exhibit R4 – Matter 2019/2304).
LEGISLATIVE FRAMEWORK
Section 21(1) of the Act provides that a person may make an application to the Respondent to become an Australian citizen and section 21(2) of the Act sets out the general eligibility criteria.
Section 24(1) of the Act provides:
(1)If a person makes an application under section 21, the Minister must, by writing, approve or refuse to approve the person becoming an Australian citizen.
Section 21(5) of the Act provides:
(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; and
(ii) at the time of the Minister's decision on the application.
Section 24(2) of the Act gives the Respondent a general discretion to refuse to grant citizenship despite a person meeting the criteria in the Act. It provides:
(2)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).
Section 22(1) of the Act sets out the general residence requirements:
(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 the 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.
Subsections 22(1A) and 22(1B) provide exceptions to the general residence requirement for time spent overseas in certain circumstances. Neither is applicable to the present case.
Chapter 7 of the Policy deals with citizenship by conferral. Under the heading “Persons aged under 18 years (s 21(5))” on pages 75-76 of 237, the following appears:
Person aged under 18 years (s21(5))
..
For applications received on or after 9 November 2009, a person under the age of 18 years applying for Australian citizenship by conferral under s21(5), must be a permanent resident (that is, they must have activated their permanent visa by entering Australia or by being granted the permanent visa while onshore) at the time of application and at the time of decision to be eligible for Australian citizenship.
The discretion in s24(2) to refuse to approve an applicant becoming an Australian citizen despite being eligible under s21(5) would usually be exercised where the applicant meets the legislative eligibility criteria under s21(5) (being aged under 18 years and being a permanent resident at the time of application and decision), but does not meet the policy guidelines. In making a decision whether to refuse or approve an application, the primary considerations that need to be taken into account are the legislative requirements, the best interests of the child and the policy guidelines set out in this chapter.
…
Best interests of the child
The best interests of the child are to be considered as one of the primary considerations when assessing the application. This consideration only applies if the child is or would be under 18 at the time of decision on the application and the child is living in Australia. Refer to Chapter 22 - Best interests of the child.
…
Applicants aged 16 or 17 (s21(5))
Applicants aged 16 or 17 at time of application must make an application on a form that contains no other application.
Applicants aged 16 or 17 would not usually be approved under s24 unless they are permanent residents at the time of application and decision and also:
o satisfy the residence requirement (unless they would suffer significant hardship or disadvantage if they had to meet this requirement). Refer to Residence requirement and Significant hardship or disadvantage / detriment
o understands the nature of an application
o possesses a basic knowledge of the English language
o has an adequate knowledge of the responsibilities and privileges of Australian citizenship at the time of decision and
o is likely to reside or continue to reside, or maintain a close and continuing association with Australia.
Applicants aged 16 or 17 at time of application should be given the opportunity at interview to demonstrate that they understand the nature of their application, have an adequate knowledge of the responsibilities and privileges of citizenship, and that they possess a basic knowledge of the English language. It is important that an applicant’s ability to understand and respond to questions is not hampered by the use of complex words or sentences.
Applicants aged 16 or 17 do not need the consent of a responsible parent for the purposes of making their application. However, a responsible parent must sign the application form to provide consent for the department to provide the applicant’s personal information to the National Police Checking Service (NPCS) for the purposes of the NPCS conducting a National Police check in relation to the applicant as part of their application for the purposes of assessing whether an offence provision (s24(6) of the Act) applies to the applicant.
Consideration also must be given to whether there is a prohibition to approval. Refer to Prohibitions -Minister’s decision (s24).
Following consideration of the circumstances of the case, including the best interests of the child (refer to Chapter 22 - Best interests of the child), some applicants may warrant approval despite their case not aligning with information contained in this chapter.
Chapter 3 of the Policy defines “significant hardship or disadvantage/detriment” as follows:
Significant hardship or disadvantage / detriment
A number of provisions in the Act require an assessment of whether a person would suffer significant hardship or disadvantage / detriment. In addition, the policy guidelines relating to applications for conferral from persons aged under 18 years (those conferral applicants seeking to acquire citizenship through s21(5) of the Act), ask that an assessment be made as to whether the applicant would suffer significant hardship or disadvantage if they were not to acquire citizenship.
...
In making an assessment of whether a person would suffer significant hardship or detriment / disadvantage, the words have their usual dictionary meaning. The Macquarie Dictionary Fifth Edition makes the following definitions:
o significant – important; of consequence
o hardship – a condition that bears hard upon one; severe toil, trial, oppression, or need
o disadvantage – absence or deprivation of advantage; any unfavourable circumstance or condition
o detriment – loss, damage, or injury
o economic – relating to the production, distribution, and use of income and wealth.
Personal needs and personal wants
There is a difference between personal needs and personal wants in respect of whether a person’s circumstances constitute ‘significant hardship or disadvantage’.
Personal needs
Personal needs relate to situations which would give rise to significant hardship or disadvantage if a person could not meet that need. For example, if a person could not find any employment, and was unable to adequately financially support themselves or their family.
Personal wants
Personal wants are aspirations and generally do not constitute hardship (that is, the right to vote, election to Parliament, eligibility for HECS-HELP, representing Australia internationally in academics or sport).
Australian citizenship is not a requirement to study in Australia at the primary or secondary levels. Australian universities may admit students who are not Australian citizens however eligibility for Commonwealth supported place may be limited to Australian citizens or permanent humanitarian visa holders. Further information on Commonwealth supported places is available from the Department of Industry, Innovation, Science, Research and Tertiary Education. Education, Science and Training at: conferral
People would normally be required to demonstrate some or all of the following circumstances:
oinability to gain employment on the grounds that the employment is restricted to Australian citizens, and that comparable or alternative employment is not reasonably available
odifficulty of international travel because the person cannot obtain a passport from their country of nationality/citizenship, or are unable to use a passport issued by that country for safety or similar reasons or cannot obtain an alternative travel document
oacademic (for example, research, academic scholarship) or other (sporting, etc) potential is being limited or restricted, because the opportunities to reach that potential is available only to an Australian citizen, to the extent that it causes significant hardship.
Applicants would need to demonstrate that not having citizenship is the only or major cause for the significant hardship or disadvantage. Each application will need to be assessed on its merits with reference to the evidence provided and all the circumstances of the case to determine whether the person’s lack of Australian citizenship is the only or major cause of the significant hardship or disadvantage.
Evidence is required that a person’s lack of Australian citizenship is the cause of the:
osignificant hardship
or
odisadvantage or detriment.
For example, a letter from a potential employer, scholarship, sporting body stating that the person’s citizenship status is the only reason they have not been selected, plus a statement in writing from the applicant, with appropriate supporting documentation, evidencing the significant hardship or disadvantage this has caused.
CONSIDERATION
Policy
There are a number of documents that have (apparently) been issued by the Department of Immigration and Border Protection (the Department) over the last several years dealing with policy and procedures. These include the Australian Citizenship Instructions (ACIs), the Policy, the Australian Citizenship Procedural Instructions (CPIs) and the Revised Citizenship Procedural Instructions (RCPIs). These documents appear to have been “published” on the Department’s website at various times. It is not clear by what process these various documents came into existence, who the author of each of the documents was or by whose or what authority each was created. Further, there is, unfortunately, little explanation, either in the documents themselves or separately issued by the Department (at least that the Tribunal could find) of the hierarchy, interrelationship or status of these various documents. The cover page of the Policy, which is dated 1 June 2016, under the heading Introduction to Citizenship Policy, states that:
The role of the Citizenship Policy is to support the Australian Citizenship Act 2007 (the Act). Citizenship Policy provides guidance on the interpretation of, and the exercise of powers under, the Act and the Australian Citizenship Regulations 2007 (the Regulations). Policy cannot constrain the exercise of delegated powers under the Act or the Regulations.
Under the heading Policy on that cover page, the following statement appears:
Citizenship Policy, which is part of the centralised department instructions system (CDIS), replaces the policy guidance previously provided in the form of the Australian Citizenship Instructions (ACIs) which were last published on 26 February 2015. From 1 June 2016 the ACIs detail the citizenship operational instructions.
The structure of the Citizenship Policy differs from that used in the ACIs and additional policy clarifications and updated policy guidance has been provided throughout. It has been developed to comply with the Web Content Accessibility Guidelines (WCAG) 2.0 requirements.
From 1 June 2016 the ACIs detail the citizenship operational instructions [sic].
The statement that the Policy replaced the ACIs appears to be at odds with the advice on the cover page of the version of the ACIs currently on the Department’s website that:
This revised version of the Australian Citizenship Instructions was published on
28 July 2016, but has effect from 1 June 2016.
From 01/01/2019, this document is being systematically replaced by the Revised Citizenship Procedural Instructions.
(Original emphasis.)
It is not clear how, from 1 January 2019, the RCPIs were “systematically replacing” the ACIs when, according to the Policy, the Policy replaced the ACIs on 1 June 2016 (see [21] above).
The CPIs also describe their role as being “to support the Australian Citizenship Act 2007” and, presumably, the same role is to be played by the RCPIs as they replace the CPIs.
The cover page of the document headed “Revised Citizenship Procedural Instructions” (which unhelpfully defines both the “Revised Citizenship Procedural Instructions” as “(CPIs)” and the “Australian Citizenship Procedural Instructions” as “(CPIs)”) states, under the heading “Latest changes – Policy”, that:
These CPIs have been updated in order to reflect current policy settings and to ensure consistency with departmental standard instructions formats.
CPI 1, paragraph 4.1 of the RCPIs, under the heading “Overview”, describes the role of that CPI as follows:
This instruction sets out the legal requirements that must be met by a person aged 18 to 59 (inclusive) in order to become an Australian citizen by conferral under subsection 21(2) of the Act.
A similar statement is contained in CPI 4 which, under the heading “Procedural Instruction”, says:
The purpose of this instruction is to identify the legal requirements, and related policy and procedures that apply to the assessment of an application under s 21(5) of the Australian Citizenship Act 2007 (the Act) to become an Australian citizen by conferral for a person under the age of 18.
The obvious difference between the statements in CPI 1 and CPI 4 is that CPI 1 does not say that it sets out the “policy” as well as the “legal requirements” whereas CPI 4 says that it sets out the “legal requirements, and related policy”. Further, relevant to the present proceedings, CPI 4.4, under the heading “16 and 17 year olds” says:
In addition to the legal requirements set out in s 21(5), decision-makers are to give due consideration to the policy guidelines below in deciding whether to approve or refuse the application of applicants who were under 18 at the time of the application. This policy exists for the purpose of guiding the exercise of the discretion in ss 24(2) of the Act to refuse to approve a person as an Australian citizen even if they meet the eligibility criteria in ss 21(5). As noted above, the policy guidelines should not be applied inflexibly, particularly in circumstances where the applicant may suffer significant hardship or disadvantage.
What then is the document or are the documents that identify the executive policy?
The Tribunal understands the intent and effect of the statement in the introduction to the Policy cited at [21] above to be that the Policy replaced the ACIs, but that from 1 June 2016 the role of the ACIs was to “detail the citizenship operational instructions”. What that means is not clear given that there is no explanation of what “operational instructions” means and the fact that the Department has also issued the CPIs and RCPIs. Are they “operational instructions” as well? Like the introduction to the Policy, the introduction to the CPIs says that their role “is to support the Australian Citizenship Act 2007”. It does, however, say that they “must be read in conjunction with the Citizenship Policy document”. That introduction also advised that “From 01/01/2019, this document is being systematically replaced by the Revised Citizenship Procedural Instructions”.
The Tribunal assumes that the intent was that the Policy replaced the ACIs as being the document setting out executive policy, and the “rump” of the ACIs, which have been progressively replaced by the CPIs and the RCPIs (as the inclusion of the word “procedural” suggests) set out the procedures to be followed by decision-makers. While that seems logical, it is to a degree, contradicted by the statement in CPI 4 that that CPI sets out the policy as well as the “legal requirements” (which are actually set out in the Act) and the “policy guidelines”. While it is far from clear, perhaps the intent of the CPIs/RCPIs,
in particular CPI 4, is to identify the relevant legal requirements as prescribed by the Act and to “reflect” (see [24] above) the relevant executive policies as laid out in the Policy as well as guiding decision-makers and applicants as to the administrative procedures to be followed. This interpretation is given some support by the fact that the policies described or “reflected” in the CPIs, in particular CPI 4, are basically the policies that are set out in the Policy.
In the hope that it might clarify matters, on 12 June 2020 the Tribunal directed the parties to provide submissions on which of the Policy, the CPIs or other documents applied in the present case. Those submissions were provided by the Respondent on 10 July 2020 and by the Applicant on 27 July 2020. Unfortunately, neither submission clearly answered the questions set out above as to the operation and interrelationship of the various documents. The Respondent’s submission referred to a number of cases in which, according to the Respondent, the tribunal has found that the Policy and the CPIs should be read together and that the CPIs “supplement the [Policy]”. The Respondent cited Odesho and Minister for Home Affairs[2] at [29]; Kakos and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs[3] at [17] and Sibai and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs[4] (Sibai) at [11]. Each of those decisions makes a general statement that the Policy sets out the policy and the CPIs supplement the Policy (e.g. [11] of Sibai says “The Citizenship Policy (‘the Policy’) provides policy guidance to decision-makers on the interpretation of, and the exercise of powers under the Act, and is supplemented by operational instructions in the Revised Citizenship Procedural Instructions (‘the Instructions’)”. None of those decision, however, addresses the issues identified in [20]-[29] above.
[2] [2019] AATA 3946.
[3] [2020] AATA 571.
[4] [2020] AATA 957.
As this Tribunal noted in RRML and XJFZ and Minister for Home Affairs[5] (RRML) at [40] and [41], the Policy seems to largely replicate the ACIs with, unhelpfully, the numbering of the sections being deleted. In RRML the part of the Policy that was being considered (pages 75-77 of 273) was that which largely replicated ACI 5.12 which was considered by the
Full Court in Minister for Home Affairs v G[6] (MHA v G). As it did in the case of RRML,
the Tribunal will apply the comments made by the Court about the ACIs in MHA v G to the corresponding parts of the Policy.
[5] [2020] AATA 1654.
[6] [2019] FCAFC 79.
The end result of all of the above is that, insofar as the Tribunal is to take account of “executive policy” in the way directed by the Court in MHA v G, that executive policy is set out in the Policy. The Tribunal notes that while the Respondent included some of the CPIs (RCPIs) in the T documents, the only “policy” document to which the Respondent referred in his submissions was the Policy. The Applicant’s SFIC did not refer to any particular policy document. At the hearing Mr Garg did refer to page 92 of the T documents which contains an extract from CPI 4. In an email sent to the Tribunal registry on 8 June 2020 after the hearing, Mr Garg made the following comment:
…I do not believe that the citizenship policy relied upon in this matter is the correct policy. It has been superseded by a more recent policy, Citizenship Procedural Instruction No. 4, which does not impose a strict requirement for persons under the age of 18 to meet a minimum period of residency in Australia. Instead, this more recent policy requires applicants for citizenship to demonstrate that they understand what being an Australian citizen means, including a general understanding of Australia’s democratic system of government and the requirement to vote in elections. This is what I was trying to say at the hearing today.
So confusing.
Mr Garg’s confusion is understandable. It would, in the Tribunal’s view, be of assistance to future applicants, and perhaps future tribunals, if the Department were to publish a clarification of the roles of and the interrelationship between the several documents that appear on its website. Ideally there should be a single document which clearly sets out the Department’s policy in the exercise of discretions, and identifies itself as so doing, and a separate document which sets out procedures for applicant’s and decision-makers.
The current documents seem to blur these different functions with the inevitable risks of inconsistency between the documents and confusion.
The basis upon which the Applicant made his argument for the review of the decisions was not clear. The Applicant provided only one statement of facts issues and contentions, that being in matter 2019/7673. The Applicant’s SFIC observes in paragraph 6 that:
·on 9 September 2019 the Applicant applied for citizenship, identifying that he was relying on the provisions relevant to a person under 18 years of age;
·he provided submissions with his application detailing that he would suffer significant hardship and disadvantage if he had to satisfy the residence requirements of ss 22(1)(a) and (b);
·
the delegate assessing the application was aware that the Applicant would turn
18 on 16 September 2019;
·
the Applicant was over 18 when the delegate made her decision on
28 October 2019;
·on 19 October 2019 the Applicant’s mother became an Australian citizen; and
·the decision to refuse the application on 28 October 2019 was “under best interest of child assessment even though eligible under s 21(5)”.
Paragraph 7 of the ASFIC contends that the Applicant:
·is eligible under s 21(5);
·is over 18 years of age;
·is a permanent resident;
·possesses a basic understanding of English;
·has an adequate knowledge of Australia and of the responsibilities and privileges of Australian citizenship;
·is likely to continue to reside in Australia; and
·is of good character.
The Applicant refers to MHA v G and G v Minister for Home Affairs[7] and says that the delegate’s decision (presumably that made on 28 October 2019) involves an inflexible and incorrect application of the policy.
[7] [2018] FCA 1229.
At paragraph 10 the Applicant contends that in granting the Applicant’s mother citizenship, the Respondent did not apply the Schedule 3 criteria because since 2011 she had
“not travelled to India to meet her mother out of fear of her ex-spouse”.
At paragraph 12 of his SFIC the Applicant says that, applying the principle in LNRD and RFKS and Minister for Home Affairs[8], the Applicant would get “another layer of protection [from] being an Australian citizen when visiting Grand Mothers in India”.
[8] [2019] AATA 4247.
At paragraph 13 of the ASFIC the Applicant contends that due to the COVID-19 economic downturn Australian citizenship would provide more certainty to the Applicant in relation to his future “so that he can make independent decisions and not be involved with controlling behaviours of natural parents”.
At the hearing the Tribunal sought clarification from Mr Garg as to the basis of the Applicant’s claim and, more particularly (a) which part of the Policy the Applicant says applies to him and (b) on what bases the discretion should be exercised in the Applicant’s favour under that part of the Policy or otherwise. That was not an easy task. Through a series of questions and exchanges at the commencement of the hearing[9] the Tribunal sought clarification from Mr Garg as to whether the Applicant agreed with the Respondent that the relevant part of the Policy was that applying to applicants who were 16 or 17 at the time that they made their application.[10] This was the part of the Policy applied by the delegates in both decisions.
[9] Transcript 3-20.
[10] Policy page 77 of 237.
Rather than identifying the relevant part of the Policy, Mr Garg, initially at least, referred to CPI 4, in particular that part of CPI 4 at T6/92 which provides as follows:
Exercising the discretion provided under ss 24(2) of the Act
Subsection 24(2) of the Act provides that a decision-maker may refuse to approve an application for conferral of Australian citizenship even though the person satisfies eligibility criteria. In exercising that discretion, decision-makers should give due consideration to the policy set out in this Instruction, noting again that the policy must not be exercised inflexibly.
When considering the use of this discretion a best interests of the child assessment must be undertaken prior to a decision being made. A best interests of child assessment is not required if the applicant has turned 18 at the time of decision.
The best interest of the child assessment must be included in the reasons to demonstrate that the decision-maker has considered this matter.
The relevance of CPI 4 to the Applicant appeared to be that both decisions, which were in the same pro-forma, referred to the best interests of the child as identified in Article 3.1 of the Convention on the Rights of the Child (CROC).[11] Those pro-forma decisions, having referred to CROC, go on to state that “As you are under 18 at this time I am required to treat your best interests as a primary consideration in making this decision”.
[11] T2/9.
The Tribunal understood the Applicant’s point to be that as he was not under 18 at the time of the second decision, there has been a misapplication of the Policy. Mr Garg submitted that:[12]
…There is something - there is something about at the time of decision the policy is saying that exercising the discretion, the policy which is stated on page 53 because the applicant has turned 18 may not apply.
[12] Transcript at 20.
While it was difficult to follow, what Mr Garg seemed to be arguing was that because CPI 4 states that the best interest of the child assessment does not need to be made if the applicant has turned 18, which is, in any event, what the Policy also says at page 75 of 237 (see [18] above), somehow the Policy did not apply. He made the following statements:
MR GARG:There is something - there is something about at the time of decision the policy is saying that exercising the discretion, the policy which is stated on page 53 [Policy, page 75 of 237] because the applicant has turned 18 may not apply.
TRIBUNAL:Well, all of that - - -
MR GARG:That’s the reason that whether it applies, or it does not apply.
TRIBUNAL:Well, these are the citizenship procedure instructions, not the policy. These are procedural instructions and the part that you’re referring to is just simply saying:
When considering the use of the discretion, the best interests of the child assessment must be undertaken prior to a decision is made. The best interests of the child assessment is not required if the applicant has turned 18 at the time of the decision.
So, that’s what you’re drawing my attention to, isn’t it?
MR GARG:Sir.
…
MR GARG:When you come to the page 53 and there I’m drawing the attention to the paragraph:
Following consideration of the circumstances of the case, including the best interests of the child ---
which I’m taking it from the instruction.
…
MR GARG:That’s not my understanding, honourable Member. How I form my understanding is on the policy referring to page number 53 and page number 92. That’s how I read it.
Mr Garg’s reference in the above exchange to the policy on page 92 of the T documents is a reference to CPI 4, or at least that part of CPI 4 reproduced at [41] above. The following exchange then took place:[13]
[13] Transcript at 20-25.
TRIBUNAL: Well, one’s a procedural instruction. It’s just simply saying that once a person turns 18, you don’t have to take the best interests of the child. That’s got nothing to do with the first bullet point in the second paragraph, which is talking about disadvantage or hardship. That’s got nothing to do with age.
MR GARG: Significant disadvantage is the basis for the refusal. Just honourable Member, …
TRIBUNAL:No, the significant hardship, you’ve just explained, was the basis for you making the second application.
MR GARG:Yes, on 9 September 2018.
TRIBUNAL: Yes. Now, that’s got nothing to do with the person being 18 or under 18.
MR GARG:Yes.
TRIBUNAL:That’s a different consideration.
MR GARG:But then the applicant turned 18.
TRIBUNAL:Yes, but it’s got nothing to do with significant hardship. They’re two different considerations. The interests of the child is set out in chapter 22 of the policy and that deals with basically the child being subject to matters which are covered by - there are two policies referred to in chapter 22…
…
TRIBUNAL:…So you seem to be coming back to actually arguing – and the whole point of the second application that you made which is the subject of 7673 of 2019 is that your client will suffer a hardship if citizenship is not granted.
MR GARG:Yes sir.
TRIBUNAL:Yes, okay. Well I think that’s the way we have to proceed and I’m – Mr Gerrard, is that your understanding of really where we’re at?
MR GERRARD: Well that was my understanding coming into the hearing.
In the end the Tribunal understood the Applicant’s case under the Policy to be that he would suffer significant hardship or disadvantage/detriment if he were not granted citizenship and that the other criteria under the Policy relating to applicants who were aged 16 or 17 at the time of the application (see [18] above) were satisfied. That seems to be the thrust of the Applicant’s submissions set out at [34] above.
The Respondent provided statements of facts, issues and contentions in both matters which were materially the same. The Respondent contends that:
·the applicable part of the Policy is that applying to applicants who are 16 or 17 at the time of the application for citizenship. The Tribunal agrees;
·the Applicant does not meet the residency requirements. The Applicant, as he must, concedes that to be the case[14] and the Tribunal finds that to be the case;
·
the Applicant has not demonstrated significant hardship or disadvantage.
More specifically, referring to the submission made by the Applicant at the time of his application, the Applicant’s claim for hardship rests on the Applicant’s claimed inability to study at university until such time as he can access financial support through the HECS-HELP system. The fact that it would be financially advantageous to the Applicant to acquire citizenship, including because the Applicant would not have to pay higher university fees as an overseas student, is not unusual or exceptional, and is not a reason to confer citizenship. Citing multiple decisions, the Respondent contends that the tribunal has consistently found such situations do not constitute significant hardship;
·that eligibility for HECS-HELP is expressly identified in Chapter 3 of the Policy as a personal want, which generally does not constitute significant hardship (see [19] above);
·the Applicant has not demonstrated that refusal of his application for citizenship will limit or restrict his academic potential to the extent that it would cause significant hardship, either by impacting on his ability to finance further studies, or otherwise;
·the Applicant will not complete year 12 until the end of 2020. Even if the Tribunal accepts the applicant’s contention that the delay in granting citizenship would mean that he could not enrol in university until 2023, this would result in a deferment of 2 years which is not, in reality, a lengthy period which could be said to equate to significant hardship; and
·it is also the case that the asserted hardship is dependent upon the Applicant qualifying for university which is, at this stage, simply speculation. While the Applicant has produced a letter dated 5 September 2019 from the Deputy Principal of Dianella Secondary College which states that the applicant’s current results “indicate that he is capable of achieving an ATAR that is enough to enter a university of his choice in Western Australia”, that evidence is necessarily and appropriately vague and cannot support a contention that the Applicant is likely to qualify for university studies.
[14] Transcript at 9.
The Respondent’s above submissions are largely addressing the matters that were raised by the Applicant in his statutory declaration of 4 October 2019[15] and set out in the ASFIC.
[15] R3.
At the hearing the argument that he would have better protection from his father in India if he were granted citizenship was developed through the Applicant’s evidence.
This consideration was referred to, only obliquely, in paragraph 12 of the Applicant’s SFIC (see [38] above) and was not referred to at all in his statutory declaration of
4 October 2019.[16] It was referred to in the letter dated 9 September 2019 prepared by
Mr Garg and submitted with the application for citizenship.[17] That letter referred to:
·his natural father, who is resident in India, having “brainwashed him [the Applicant] against his mother”
·his father being a politician and businessman who is seeking the Applicant ‘s return to India;
·the Applicant fears that if he returns to India his father will, using his political connections, attempt to prevent him leaving;
·his grandmothers who raised him are old and may pass away;
·his mother (in Australia) is seeking contribution (presumably form the Applicant) towards food, shelter and clothing costs.
[16] R3.
[17] T8/140-141.
The Applicant’s argument was that if he were an Australian citizen it would be harder for his father to prevent him leaving India if he were to return. Under cross-examination the Applicant was not able to say how his father would be able to stop him leaving India.
The part of the Policy applicable to the Applicant is that relating to applicants who are
16 or 17 years of age at the time that they made the application for citizenship. That is the Policy set out under the heading “Applicants aged 16 or 17 (s 21(5))” reproduced at [18] and [19] above. The fact that the Applicant has turned 18 is irrelevant.
In relation to the role that the Policy is to play in the making of a decision whether to grant or not to grant citizenship, the Tribunal is mindful of the Full Court’s statement in Hneidi v Minister for Immigration and Citizenship[18] at [42]:
The Tribunal is not entitled to abdicate its function of determining whether the decision made was, on the material before the Tribunal, the correct or preferable one in favour of a function of merely determining whether the decision made conformed with whatever the relevant general government policy may be.
[18] [2010] FCAFC 20.
The Tribunal also notes the statement by President Brennan J in Drake v Minister for Immigration and Ethnic Affairs (No 2)[19] at 642 and 645 that:
It is one thing for the Minister to apply his own policy in deciding cases; it is another thing for the Tribunal to apply it. In point of law, the Tribunal is as free as the Minister to apply or not to apply that policy. The Tribunal’s duty is to make the correct or preferable decision in each case on the material before it, and the Tribunal is at liberty to adopt whatever policy it chooses, or no policy at all, in fulfilling its statutory function. In fulfilling its function, the Tribunal, being independent of the Minister, is free to adopt reasoning entirely different from the reasoning which led to the making of the decision under review. But it is not bound to do so...
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...
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 itself or against its application in the particular case will be considered, but cogent reasons will have to be shown against its application...
(Emphasis added.)
[19] (1979) 2 ALD 634.
The Tribunal also notes the statements by Mortimer J in G v MIBP:
[171]Justice or injustice is not found within a policy: it is found by looking at the overall circumstances of an individual’s case, with the principal focus being on the purpose and context of the statutory power, not the executive policy framed to guide it.
...
[266]A Tribunal must give active intellectual consideration to what is the correct or preferable decision on the basis of all the material before it, in all of the circumstances before it. One of those circumstances is the existence, and content, of an executive policy.
While her Honour’s finding that parts of the Instruction were unlawful was set aside, nothing in the Full Court’s decision on MHA v G is inconsistent with the above statements by her Honour.
The Applicant points out that the decision-maker cannot inflexibly apply policy. The Tribunal agrees. As well as being specifically stated in CPI 4 (see [27] above) and a similar sentiment being expressed in the introduction of the Policy (see [20] above), that approach has been mandated in a number of cases, including G v MIBP and Galesloot and Minister for Home Affairs[20] (Galesloot). These cases have made it clear that the decision maker cannot inflexibly apply policy, that the full range of factors and specific circumstances must be taken into account and, as noted in Galesloot at [44]:
...it is for the decision-maker to determine the weight to be given to each of the factors and the Tribunal considers the... [Policy] directive as an impermissible fetter on that discretion.
[20] [2018] AATA 4450.
The Tribunal takes the approach outlined in the above cases.
In the end the significant hardships or disadvantages/detriments that the Applicant identified that he would suffer if he were not granted citizenship are that he would be delayed in getting into university because of an inability to access HECS-HELP and that he would have greater protection from his father preventing him leaving India if he were to return to India.
The Tribunal does not accept that these potential consequences or the fact that he might have greater financial security if he were an Australian citizen (see [39] above) constitute significant hardship or disadvantage/detriment. As the Respondent notes, inability to access HECS-HELP is specifically identified as a “want”, not a hardship, disadvantage or a detriment (see [19] above). As the Respondent also points out, the Applicant potentially not being able to access HECS-HELP for the next two years in circumstances where the Applicant is still to finish school is too speculative to constitute a hardship that would warrant departure from the norm under the Policy, namely, that applicants who are 16 and 17 at the time of their application “would usually not be approved under s 24”.
The Applicant’s claim that he would somehow be better protected from his father preventing him departing India if he were a citizen was speculative and not supported by any evidence and, again, is not a circumstance which would constitute a significant hardship or disadvantage/detriment or a circumstance that would otherwise warrant departure from the norm under the Policy, namely, that applicants who are 16 and 17 at the time of their application “would usually not be approved”.
Independently of the Policy, the Tribunal is not satisfied that “looking at the overall circumstances of an individual’s case, with the principal focus being on the purpose and context of the statutory power”, to use Mortimer J’s words in G v MIBP (see [54] above), that there are reasons to exercise the discretion under s 24(2) of the Act to grant the Applicant’s citizenship.
DECISION
The delegates’ decisions referred to in [1] are affirmed.
I certify that the preceding 61 (sixty-one) paragraphs are a true copy of the reasons for the decision herein of Deputy President Boyle
.................................[SGD]....................................
Associate
Dated: 4 September 2020
Date(s) of hearing: 8 June 2020 Counsel for the Applicant: Mr A Garg Solicitors for the Applicant: Auslead International Counsel for the Respondent: Mr A Gerrard Solicitors for the Respondent: Australian Government Solicitor
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