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

[2022] AATA 661

Chimnani and          Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Citizenship) [2022] AATA 661 (28 March 2022)

Division:GENERAL DIVISION

File Number(s):      2020/4294

Re:Aryan Basam Chimnani

APPLICANT

AndMinister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

RESPONDENT

DECISION

Tribunal:Senior Member Dr Linda Kirk

Date:28 March 2022

Place:Sydney

The Tribunal affirms the Reviewable Decision, dated 19 June 2020.

.....................[sgd]...................................................

Senior Member Dr Linda Kirk

CATCHWORDS

CITIZENSHIP – application for citizenship by conferral – where applicant is 16 or 17 years old at time of application – where applicant meets criteria but discretion to refuse application is used – applicant not a resident of Australia for two years prior to application – close and continuing association with Australia – best interests of the child – significant hardship, disadvantage or detriment – decision under review affirmed.

LEGISLATION

Australian Citizenship Act 2007 (Cth) s 21, s 24

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

Minister for Immigration, Local Government and Ethnic Affairs v Gray (1994) 33 ALD 13

Re ER Aston and Y Aston and Secretary to the Department of Primary Industry [1985] AATA 306

Sabumei and Minister for Immigration and Border Protection [2014] AATA 648

Taher and Minister for Immigration and Border Protection [2013] AATA 917

Ul Haque and Minister for Immigration and Citizenship [2013] AATA 118

SECONDARY MATERIALS

Australian Citizenship [Policy Statement]

Revised Citizenship Procedural Instruction 4 – Australian Citizenship by Conferral – Person under 18

Revised Citizenship Procedural Instruction 12 – Assessing significant hardship, disadvantage or detriment for the purposes of Australian citizenship

Revised Citizenship Procedural Instruction CPI 13 – Best interests of the child assessments

REASONS FOR DECISION

Senior Member Dr Linda Kirk

28 March 2022

1. Aryan Chimnani (‘the Applicant’) is a citizen of the United States who was born in 2003.[1]  On 1 October 2014 the Applicant was granted an Employer Nomination (subclass 186) permanent visa as a dependent child of his father, Sanjay Chimnani.[2]  The Applicant first arrived in Australia on 10 August 2019.[3]  On 16 August 2019, Sanjay Chimnani applied on the Applicant’s behalf for Australian citizenship by conferral under the Australian Citizenship Act 2007 (Cth) (‘the Act’).[4]  On 14 November 2019 the Applicant was granted a subclass 155 (Resident Return Visa).

   [1] T8, 117.

   [2] T4, 107.

   [3] T5, 111.

   [4] T8, 115-133.

2. On 19 June 2020, a delegate of the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (‘the Respondent’) refused the application (‘the Reviewable Decision’).[5] The delegate was satisfied that the Applicant met the requirements of s 21(5) of        the Act, however she exercised her discretion under s 24(2) of the Act to refuse the application on the basis that the Applicant had not met the policy guidelines contained within the Citizenship Policy relating to assessing an application by  children under 16 years of age.

   [5] T2, 13-20.

3. On 16 July 2020, the Applicant lodged an application for review of the Reviewable Decision with the Tribunal.[6]

   [6]  T1, 6-12.

4. The matter was heard by the Tribunal on 2 December 2021. The Applicant attended the hearing by video conference and gave oral evidence.

5. The material before the Tribunal consists of:

   • T-Documents (T1-T11, pages 1-137) filed 14 August 2020.
   • A statement from the Applicant’s father, Sanjay Chimnani, dated 15 December 2020.

6. The Tribunal also received written submissions in the form of a Statement of Facts, Issues and Contentions from both parties. A series of letters in support of the Applicant’s father’s citizenship application were also filed and given appropriate weight.

7. The Tribunal has reviewed all the evidence before it and refers to all relevant materials below.

   LEGISLATIVE FRAMEWORK

   Australian Citizenship Act

8. Section 20 of the Act relevantly states that a person becomes an Australian citizen if the Minister decides under subsection 24(1) to approve the person becoming an Australian citizen.

9. Section 24(1) of the Act provides that if a person makes an application to become an Australian citizen, the Minister must, by writing, approve or refuse to approve the person becoming an Australian citizen.

10. Pursuant to section 24(1A) of the Act, the Minister must not approve an application to become an Australian citizen unless the person is eligible to become an Australian citizen under subsection 21(2)-(8) of the Act.

11. Subsection 21(5) 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.

12. However, subsection 24(2) further 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).

    Citizenship Policy

13. The Australian Citizenship [Policy Statement] (‘Policy Statement’) and the Revised Australian Citizenship Procedural Instructions (‘CPI’) provide policy guidance to decision-makers on the interpretation and exercise of powers under the Act. 

14. In Re ER Aston and Y Aston and Secretary to the Department of Primary Industry, the Tribunal recognised that policy is not binding:

    Policy is not law. A statement of policy is not a prescription of binding criteria. By conferring a discretion upon the decision-maker, the law requires that all matters relevant to the exercise of the discretion shall be taken into account.[7]

    [7] Re ER Aston and Y Aston and Secretary to the Department of Primary Industry [1985] AATA 306 at [21].

15. In Minister for Immigration, Local Government and Ethnic Affairs v Gray, the Full Federal Court opined:

    It is right to say that the tribunal, which operates as part of a continuum of administrative decision-making, is not bound by government policy although it may take such policy into account in the exercise of the statutory power or discretion which is under review.[8]

    [8] Minister for Immigration, Local Government and Ethnic Affairs v Gray (1994) 33 ALD 13 at [28], citations omitted.

16. The approach of the Tribunal as it relates to statements of policy is outlined in the decision of Brennan J, then President of the Tribunal, in Drake and Minister for Immigration and Ethnic Affairs (No 2):

    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.

    …………

    In my view, the Tribunal, being entitled to determine its own practice in respect of the part which 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 itself 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.[9]

    [9] [1979] 2 ALD 634 at [645].

17. His Honour further made clear in relation to the application of policy that the decision-maker’s ‘discretion cannot be so truncated by a policy as to preclude consideration of the merits of specified class of cases.’[10]

    [10] Re Drake and Minister for Immigration and Ethnic Affairs (No.2) (1979) 2 ALD 634 at [640].

18. Recently, in G v Minister for Immigration and Border Protection,[11] after a comprehensive review of the authorities, Mortimer J outlined the correct approach to the application of policy by a decision-maker:

    [11] G v Minister for Immigration and Border Protection (2018) FCA 1229

    An important point to make is that the justice or injustice of an outcome for a particular individual is not to be measured against the contents of the policy. Otherwise, the purpose of the point Brennan J is making would be lost. 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. Otherwise, again, the policy becomes a rule of law.[12]

    [12] At [171]

    …

    It can be seen from the authorities that there are a number of ways in which the dividing line between a lawful and unlawful approach to the use of a policy has been expressed:

    oA decision must not be “so truncated by a policy as to preclude consideration of the merits of specified classes of cases”;

    oA decision-maker must not “abdicate” her or his exercise of power to the terms of the policy;

    oThe policy should not “superimpose” a requirement or requirements that prevent a decision-maker from being satisfied of matters set out in the statute;

    oThe policy should not create a requirement or guideline that has an arbitrary character, in the sense of not being able to be justified or understood by reference to the statutory power in its context; and

    oA policy statement should not be applied so as to prejudice a Tribunal’s independent assessment of the merits of the case.[13]

    ….

    … policy is not to become a rule of law. The statute is the expression of the rule of law. Executive policy cannot, in form or more importantly in substance, be perceived by decision-makers as, or operate as, a rule.[14]

    …

    The passage in Drake (No 2) to which the Tribunal referred cannot become a mantra for decision-makers to avoid performing their task with active intellectual consideration of the material before them in a fulsome way, and not only in accordance with a structure imposed on the decision-maker by an executive policy. 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.[15]

    [13] At [201]

    [14] At [210]

    [15] At [266].

19. There are no cogent reasons why the Tribunal should not apply policy in this review application.

    Relevant CPIs

20. Relevant to this application is ‘CPI 4 – Australian Citizenship by Conferral – Person under 18’ (‘CPI 4’), reissued on 31 October 2021. CPI 4 distinguishes between applicants aged 15 years at the time of application, and applicants aged 16 or 17 at the time of application. In relation to applicants aged 16 or 17 years of age, CPI 4 states:

    9.1 Residence in Australia

    Under policy, a relevant consideration when determining whether to exercise the discretion at subsection 24(2) of the Act is to take into account the amount of time                that applicants aged 16 or 17 years have spent in Australia prior to lodging an application for citizenship by conferral.

    A sufficient period is usually two years residence in Australia immediately prior to the application. This would usually mean that the applicant would have attended at           least 12 months schooling in Australia and a decision maker may on that basis be satisfied that the person:

    oUnderstands the nature of the application;

    oPossesses a basic knowledge of English; and

    oHas an adequate knowledge of Australia and the responsibilities and         privileges of Australian citizenship.

    oDecision makers may be able to determine this based on information in departmental records. However, where additional information is needed an  interview may be required. A phone interview will be sufficient in most circumstances.

    Less than two years residence in Australia

    Where an applicant aged 16 or 17 years has not been resident in Australia for the           two years prior to the application as either a temporary resident or permanent resident, or may have had periods of residence in Australia that total two years cumulatively but has not attended schooling in Australia for 12 months or more, they must be interviewed for a decision maker to consider whether the applicant understands the commitment they are making.

    A phone interview will be sufficient in most circumstances.

    Conducting an interview

    Decision-makers should consider whether the applicant can participate in the interview without assistance. The interviewing officer should use simple language     and ask open questions; that is, questions that need more than a ‘yes’ or ‘no’ answer.

    Applicants who are unable to express themselves adequately in English or are not able to provide adequate responses to the questions do not meet policy guidelines         and decision makers should consider refusing the application.

    9.2 Have an intention to reside or continue to reside in Australia or maintain a          close and continuing association with Australia

    Applicants are expected to sign the declaration on their application form that they have an intention to reside or continue to reside in Australia or maintain a close and     continuing association with Australia.

    However, in cases where:

    the applicant’s travel history shows short periods in Australia prior to the application, or

    one or both of the applicant’s parents are not resident in Australia,

    the applicant should be interviewed and asked about their and their family’s plans for the immediate future, such as study overseas, intention to return to country of origin, employment plans. Plans for the whole family may be relevant, for example,         is a parent intending to take up employment overseas and do they plan to travel with their family?

    As with the above guidance, a phone interview may be sufficient in most circumstances.

    9.3 Where above policy guidelines are not met

    Decision makers must consider whether the client would be subject to significant hardship or disadvantage before proceeding to refuse an application. For further information, refer to CPI 12 – Assessing significant hardship, disadvantage or detriment for the purposes of Australian citizenship. Decision-makers are reminded that claims the applicant cannot access the Commonwealth’s Higher Education Contribution Scheme (HECS) or Higher Education Loan Program (HELP) because                they are not an Australian citizen is not, by itself, significant hardship or disadvantage.

    The decision maker may consider to refuse the application by an applicant aged 16  or 17 years under subsection 24(2) of the Act as it allows an application to be refused even though a person meets the eligibility criteria in subsection 21(5) of the Act. Each case must be assessed on its merits. For further information refer to CPI 17 - Decision-making under the Citizenship Act.

    Where an application is being considered for refusal using the discretion set out in subsection 24(2) of the Act, a best interest of the child assessment will be required if the applicant is under 18 at time of decision. Refer to CPI 13 – Best Interest of the Child Assessments.

    Officers are to consider this policy for the purpose of guiding the exercise of the discretion in subsection 24(2) of the Act to refuse an application even if the person meets the eligibility criteria in subsection 21(5). See section 10.1 below in this Instruction for further information. As noted above, the policy guidelines should not be applied inflexibly, particularly in circumstances where the applicant may suffer significant hardship or disadvantage. Refer to CPI 12 – Assessing significant hardship, disadvantage or detriment for the purposes of Australian citizenship and CPI 13 – Best Interest of the Child Assessments.

    (emphases added)

21. Paragraph 11.1 of CPI 4 provides the following with respect to the exercise of the discretion in subsection 24(2) of the Act:

    11.1 Subsection 24(2) of the Act – discretion to refuse despite being eligible

    Subsection 24(2) of the Act provides that a delegate may refuse to approve an application for conferral of Australian citizenship, even though the person satisfies eligibility criteria. In exercising that discretion, delegates must give due consideration to the policy set out in this Instruction, noting that policy must not be applied inflexibly.

    When considering the use of this discretion, a best interest of the child assessment must be undertaken prior to a decision being made. A best interest of the 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 for decision to demonstrate that the delegate has considered this matter.

    This may require the delegate to seek additional information about the circumstances of the child. For further information, refer to CPI 13 – Best Interests of the Child Assessments.

    The assessment must be fully documented including all information taken into consideration in making the finding concerning the child.

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

    Any adverse information considered during the assessment process, must be provided to the applicant (or the applicant’s responsible parent if the applicant is aged 15 year or under) and a reasonable opportunity to respond provided.

22. Paragraph 3.2 of CPI 13 – Best interests of the child assessments (‘CPI 13’) dated 10 April 2019 states the following with respect to the definition of ‘best interests of the child’:

    3.2. Definition of ‘best interests of the child’

    ‘Child’, when used in this Instruction, means a person who has not turned 18 years of age.

    The phrase ‘best interests of the child’ is not defined, but is informed, in part, by the principles in the UNCRC.[16] The factors that are most likely to be relevant to citizenship decisions are:

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

    ofamilies should be able to stay together, as far as possible;

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

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

    oprevention of the illicit transfer and non-return of children abroad;

    ofreedom of religion;

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

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

    [16]   The United Nations Convention of the Rights of the Child (UNCRC, or the Convention), was entered into 

    force in Australia on 16 January 1991, the result of which means the Commonwealth Government and

    authorities are bound to give effect to its provisions.

1. Paragraph 3.3 of CPI 13 relevantly stipulates when decision-makers are to assess the best interests of the child.

   Officers shall consider a child’s best interests when exercising a discretionary power under the Act

   Where the Act states the Minister may undertake a certain action or may make a certain decision, then a best interests of the child assessment shall be undertaken. For example:

   oThe Minister (or a person delegated by the Minister) may refuse a child’s application using a discretionary power contained in subsection 24(2) of the Act. In this circumstance a best interest of the child assessment would be required.

2. Paragraph 3.4 of CPI 13 provides the following with respect to other relevant considerations in this regard:

   3.4. Factors to take into consideration

   Decision-makers may refer to and be guided by the articles set out in the UNCRC, which can be found at Those factors raised by the applicant or a third party, or evident and relevant on the available material, must be considered. Decision-makers are not required to request further material for consideration regarding the best interests of a child but may do so if appropriate for the purposes of giving proper consideration to the matter.

   Although the UNCRC provides that minors are entitled to access public education, public health services and social welfare, and to not be subject to economic exploitation, these generally will not be an issue when deciding citizenship applications. This is because:

   othere is no discretionary power to refuse citizenship applications under Division 2, Subdivisions A (Descent) and AA (Hague Convention or bilateral arrangement adoption); and

   omost applicants under Division 2 Subdivision B (Conferral) are permanent residents, who have appropriate access to education, health and social welfare services, and when in Australia are covered by the same labour laws as Australian citizens.

3. Paragraph 3.2 of ‘CPI 12 – Assessing significant hardship, disadvantage or detriment for the purposes of Australian citizenship’ (‘CPI 12’) dated 10 April 2019 states the following:

   3.2. Meaning of ‘significant hardship or disadvantage’ and ‘significant hardship or detriment’

   The words ‘significant’, ‘hardship’, ‘disadvantage’ and ‘detriment’ are not defined in the Act.

   The Macquarie Dictionary Online provides the following definitions:

   significant important; of consequence.

   hardship a condition that bears hard upon one; severe toil, trial, oppression, or need; an instance of this; something hard to bear.

   disadvantage absence or deprivation of advantage; any unfavourable circumstance or condition.

   injury to interest, reputation, credit, profit etc.; loss; to subject to disadvantage.

   detriment loss, damage or injury; a cause of loss or damage.

   Assessing significant hardship or disadvantage/detriment

   The hardship or disadvantage/detriment must be significant and of consequence to the person.

   Depending on the provision being considered, applicants need to demonstrate they:

   owould suffer the significant hardship or disadvantage if the period of temporary residence in Australia is not treated as a period during which the person was present in Australia as a permanent resident; (for example, it may then be very difficult or impossible - and put the person to considerable hardship - for the person to take the steps to meet the permanent residency requirement ordinarily required for obtaining Australian citizenship); or

   orenounce their Australian citizenship to avoid suffering significant hardship or detriment.

   ISSUE FOR DETERMINATION

4. It is not in dispute that the Applicant satisfies the requirements of s 21(5) of the Act on the basis that at the relevant time he was under the age of 18 years and a permanent resident of Australia. The sole issue for determination by the Tribunal is whether it is appropriate to exercise the discretion under s 24(2) to refuse to approve the Applicant becoming an Australian citizen.

5. Notwithstanding that the Applicant was aged 15 years and 9 months at the time of his citizenship application and the delegate applied the policy guidance applicable to a assessing a child under the age of 16, the parties agreed that it is appropriate for the Tribunal to apply the CPIs relevant to the Applicant’s age at the date of the delegate's decision, at which time he was aged 16 years     and 10 months.The parties further agreed that the Tribunal question the Applicant at the hearing to elicit from him evidence relevant to the factors identified in CPI 4 as relevant to the assessment of an application by an applicant aged 16 or 17 years of age.

   APPLICANT’S EVIDENCE

6. The Applicant told the Tribunal that he is currently studying Data Sciences at Pennsylvania State University in the United States.  He commenced his studies in August 2021.  Prior to moving to the United States, he lived in India with his mother from 2007 to 2020.[17] The reason why he went to the United States to study in August 2021 is because he is a citizen of that country, and he was not impacted by the COVID-19 travel and entry bans that applied to non-citizens at that time.[18] If he had come to Australia to study, he would have had to quarantine for four weeks, which was not feasible for him as an unaccompanied minor.[19]

   [17] Transcript of proceedings, 2 December 2021, 6.

   [18] Transcript of proceedings, 2 December 202117.

   [19] Transcript of proceedings, 2 December 2021, 16.

7. He confirmed that he has only visited Australia on one occasion in August 2019 and stayed for three or four days. During his visit, he stayed with friends of his mother in Brisbane.[20] His mother does not have any relatives in Australia and his understanding is that his father also does not have any relatives here.[21]  The Applicant is contact with the family friends in Brisbane and their children via WhatsApp, Instagram and other social media.[22]

   [20] Transcript of proceedings, 2 December 2021, 6-7.

   [21] Transcript of proceedings, 2 December 2021, 10.

   [22] Transcript of proceedings, 2 December 2021, 12.

8. The Applicant explained to the Tribunal that his University course is a four-year degree and he is enrolled in a ‘two plus two’ program which means he spends two years on one campus and two years on another campus.[23] In the third year of his degree in 2024 he plans to participate in an exchange program for a period of four to five months.[24] He hopes that the exchange University will be either Monash University or the University of Melbourne. He said he may consider transferring his entire degree across to an Australian University, but he is uncertain about this at this point in time.[25]

   [23] Transcript of proceedings, 2 December 2021, 11.

   [24] Transcript of proceedings, 2 December 2021, 7, 11.

   [25] Transcript of proceedings, 2 December 2021, 11.

9. When his father and his partner relocate back to Melbourne from Dubai in 2023, the Applicant plans to visit and stay with them during the university summer breaks. He also will also try to spend Thanksgiving and the winter break with them if he is able to do so.[26]

   [26] Transcript of proceedings, 2 December 2021, 8.

10. The Applicant’s mother still lives in India and he will continue to travel there to visit her. His next planned visit is for two weeks in mid-December 2021. He will then travel to Dubai and spend one week with his father.[27]

    [27] Transcript of proceedings, 2 December 2021, 8.

11. The Tribunal asked the Applicant what his plans are once he completes his degree in 2025.  He said that he may work in the family business with his father and siblings, but he is unsure at this stage.[28]

    [28] Transcript of proceedings, 2 December 2021, 8.

12. The Applicant was asked about his understanding of the core values that we share as Australians.  He stated:

    So as far as the values go, there is respect from freedom and dignity of people. There is the freedom of speech, the freedom of religion. The freedom of association. And all people are subject to the law. No one is above the law. There is a parliamentary democracy where the laws are determined by the parliament and elected by the people. There’s equality for all people, no matter their race, gender, sexual orientation, age, disability or ethnic origin. There is mutual respect towards everyone. Compassion and opportunities are equal for everyone. The national language of Australia is English and I think those are all the values.[29]

    [29] Transcript of proceedings, 2 December 2021, 9.

13. He confirmed that he is also aware of the States and the Commonwealth.[30]

    [30] Transcript of proceedings, 2 December 2021, 9.

    CONSIDERATION AND REASONS

14. The Tribunal is satisfied that the Applicant satisfies the requirements of s 21(5) of the Act on the basis that at the relevant time he was under the age of 18 years and a permanent resident of Australia. The issue for determination is whether the Tribunal should exercise the discretion under s 24(2) to refuse to approve the Applicant becoming an Australian citizen.

15. Consistently with paragraph 11.1 of CPI 4 the Tribunal has given due consideration to the factors relevant to the assessment of an application by an applicant aged 16 or 17 years.

    Residence in Australia prior to submitting citizenship application – CPI 4 paragraph 9.1

16. At the time of the Applicant’s citizenship application, he was living with his mother, Ms Sunita Basam, in India and he provided his address in Secunderabad, Telangana.[31]  Ms Basam is neither an Australian citizen, nor a permanent resident.[32] The Applicant’s evidence is that he lived in India with his mother from 2007 to 2020 where he completed his schooling. The Applicant visited Australia on only one occasion from 10 to 16 August 2019 and he has not resided in Australia at any time.[33]  Based on the evidence before it, the Tribunal finds that the Applicant did not reside in Australia for two years prior to his citizenship application, nor did he attend at least 12 months schooling in Australia.

    [31] T8, 119.

    [32] T8, 122.

    [33] T4, 111; T4, 126,

17. Based on its questions of the Applicant during the hearing and the evidence he provided in response to its questioning detailed in [26]-[33] above, the Tribunal is satisfied that the Applicant has a good knowledge of English, that he understands the nature of his citizenship application, and that he has an adequate knowledge of Australia and the responsibilities and privileges Australian citizenship. 

    ‘Intention to reside’ in and ‘close and continuing association’ with Australia – CPI 4 paragraph 9.2

18. At the time of his citizenship application on 16 August 2019, the Applicant was present in Australia and resident in India.[34]  The Applicant stated in his application that he intended to depart Australia within the next 12 months. He stated that the purpose of this travel was ‘study and a minor under custody of mother’, that he proposed to depart Australia on 16 August 2019, and that the length of his proposed absence was ‘a few years’.[35]

    [34] T8, 119.

    [35] T8, 126.

19. The Applicant’s evidence to the Tribunal is that he is enrolled in a course of study at Pennsylvania State University which he expects to complete in 2025.  When his father and his partner return to Melbourne from Dubai in 2023, the Applicant has plans to travel to Australia during his university breaks and stay with them at their home. He also hopes that in 2024 he will be able to participate in an exchange program with an Australian University in Melbourne for a period of four or five months. He has considered working in the family business when he completes his degree in 2025, but he has no firm plans at this stage.

20. Based on the evidence before it, the Tribunal is not satisfied that the Applicant has an intention to reside in Australia.  Whereas he intends to spend short periods of time in Australia to visit his family during university breaks from 2023, and to undertake an exchange program at an Australian university in 2024, he has no concrete plans to reside here at any time in the foreseeable future.

21. The Applicant’s evidence is that he has ongoing contact with the family friends with whom he stayed during his short visit to Brisbane in August 2019.  In Yang v Minister for Immigration and Border Protection,[36] the Tribunal considered whether a close and continuing association with Australian family equates to a close and continuing association with Australia:

    On behalf of the Minister, it is submitted that a close relationship with Australian family members does not equate to a close and continuing association with Australia.

    I accept the Minister’s submission on that point. It is well established by previous decisions of this Tribunal that whilst an applicant for citizenship may have a close and continuing association with Australian family, that is not the same as having a close and continuing association with Australia. A person’s close and continuing association with Australian family is but one factor to be taken into account in determining whether a person had “a close and continuing association with Australia.”[37]

    [36] [2017] AATA 364 at [34]-]35]

    [37] Sabumei and Minister for Immigration and Border Protection [2014] AATA 648 at [25] (SM Walsh). See also Taher and Minister for Immigration and Border Protection [2013] AATA 917at [47] (SM Fice); and Ul Haque and Minister for Immigration and Citizenship [2013] AATA 118 at [52] (SM Britton).

22. There is no evidence before the Tribunal that demonstrates the Applicant’s association with Australia or with the Australian community. As the Applicant has spent less than a week in Australia in total, he would have very limited knowledge of the Australian way of life and Australian society and has had little opportunity to participate in the Australian community.

23. On the basis of the evidence before it, the Tribunal finds that the Applicant does not have an intention to maintain a close and continuing association with Australia. 

    Best interests of the child and significant hardship or disadvantage – CPI 4 paragraph 9.3

24. The Tribunal has considered whether an exercise of its discretion in subsection 24(2) of the Act   to refuse to approve the Applicant’s citizenship application under subsection 24(2) is contrary to his best interests, and whether would it cause him significant hardship or disadvantage. In doing so, the Tribunal has had regard to the factors outlined in CPI-13 and CPI-12.

25. The Applicant is an Australian permanent resident and therefore has an unrestricted entitlement to travel to and remain in Australia.  He also has access to education, health care and social welfare in Australia, and is   protected by Australian laws whilst he is in Australia.  There is no evidence that the Applicant is subjected to any form of violence, abuse, neglect or     maltreatment in the United States.

26. The Applicant is currently separated from both his parents by virtue of his decision, which has their full support, to live and study in the United States.  The exercise of the discretion to refuse to approve his application for citizenship would therefore would not result in the Applicant being separated from one or both of his parents.

27. Based on the evidence before it, the Tribunal is also satisfied that the Applicant will not suffer significant hardship, disadvantage or detriment if a decision is made not to approve his citizenship application, as outlined in CPI-12.  He will not be restricted in any way from travelling to Australia to spend his university breaks with his family when they return to Australia in 2023, nor from participating in an exchange program at an Australian university in 2024.  He will not be deprived of any advantage or be subjected to any unfavourable circumstance or condition if he remains a permanent resident of Australia and is not conferred Australian citizenship.

28. Accordingly, the Tribunal is satisfied that the best interests of the Applicant do not weigh against a decision to exercise the discretion under subsection 24(2) to refuse his application for citizenship, and that he will not suffer any significant hardship, disadvantage or detriment if he is not conferred Australian citizenship that would weigh against the exercise of the discretion.

    CONCLUSION

29. For the reasons set out above, the Tribunal is satisfied that it should exercise the discretion under subsection 24(2) of the Act to refuse to approve the Applicant’s citizenship application.

30. While the Tribunal’s decision will be disappointing for the Applicant and his family and friends, he will not be restricted from visiting, studying and living in Australia in the future should he decide to do so. The Tribunal encourages the Applicant to make a further application for Australian citizenship at a time when he is eligible for its conferral under the Act.

    DECISION

31. The Tribunal affirms the Reviewable Decision dated 19 June 2020.

I certify that the preceding 53 (fifty -three) paragraphs are a true copy of the reasons for the decision herein of Senior Member Dr Linda Kirk.

..........................[sgd]..............................................

Associate

Dated: 28 March 2022

Date(s) of hearing:	2 December 2021
Date final submissions received:	16 December 2021
Solicitors for the Applicant:	Mr K. Bone, Macpherson Kelley
Solicitors for the Respondent:	Mr A. Booth, Clayton Utz