Chirenda v Minister for Immigration and Border Protection
[2015] AATA 64
•6 February 2015
[2015] AATA 64
Division
GENERAL ADMINISTRATIVE DIVISION
File Number
2014/3425
Re
Kundayi Chirenda
APPLICANT
And
Minister for Immigration and Border Protection
RESPONDENT
DECISION
Tribunal Senior Member C R Walsh
Date 6 February 2015 Place Perth The Tribunal affirms the decision under review.
......(Sgd) CR Walsh.........................................
Senior Member C R Walsh
CATCHWORDS
CITIZENSHIP – applicant eligible for Australian citizenship by conferral – applicant a permanent resident and aged under 18 years - whether discretion to refuse applicant becoming an Australian citizenship should be applied - best interests of the child – general residence requirement - significant hardship or disadvantage - decision under review affirmed
LEGISLATION
Australian Citizenship Act 2007 – s 21(1) - s 21(5) – s 22(1) – s 22(1A) – s 22(1B) - s 22A – s 22B – s 23 – s 21(5) – s 24(1) – s 24(1A) - s 24(2)
Migration Act 1958 – s 6 – s 30(1)
CASES
Kamahi v Minister for Immigration and Citizenship [2012] AATA 730
Park and Minister for Immigration and Citizenship [2010] AATA 886
Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634
SECONDARY MATERIALS
Australian Citizenship Instructions – Chapter 5 – 5.11.1 – 5.11.2 – 5.12 – 5.17.2
REASONS FOR DECISION
Senior Member C R Walsh
6 February 2015
INTRODUCTION
At issue in this application is whether the Tribunal should exercise the discretion in s 24(2) of the Australian Citizenship Act 2007 (Citizenship Act) to refuse Mr Chirenda, who was aged under 18 years when he applied for Australian citizenship, becoming an Australian citizen despite him being eligible to become an Australian citizen under s 21(5) of the Citizenship Act.
FACTUAL & PROCEDURAL BACKGROUND
Mr Chirenda is a Zimbabwean national born on 17 July 1996 who is currently 18 years of age.
In 2008, Mr Chirenda was granted a Subclass (Business (Long Stay)) visa.
Mr Chirenda first arrived in Australia on 19 December 2010, but he subsequently departed and returned to Australia twice.
On 12 May 2011, Mr Chirenda was granted a Subclass 856 Employer Nomination (Residence) (Class BW) visa as a member of his father’s family unit.
By a signed “Application for Australian citizenship – Other situations” form, dated 17 December 2013, Mr Chirenda applied for Australian citizenship by conferral. Mr Chirenda’s citizenship application was not, however, received by the Department of Immigration and Border Protection (Department) until 30 May 2014, (Citizenship Application).
Mr Chirenda was 17 years of age at the time of the Citizenship Application.
The Department’s movement records for Mr Chirenda show that he had spent 45 full days in Australia at the time of the Citizenship Application.
On 5 June 2014, a delegate of the Minister for Immigration and Border Protection (Minister) decided to refuse the Citizenship Application under s 24(1) of the Citizenship Act (Citizenship Decision).[1]
[1] The Citizenship Decision erroneously refers to the Citizenship Decision as having been made under s 24(1A) of the Citizenship Act, instead of under s 24(1) of the Citizenship Act, which provides that if a person applies for Australian citizenship (under s 21(1) of the Citizenship Act) the “Minister must, by writing, approve or refuse to approve the person becoming an Australian citizen.”
The Citizenship Decision states that Mr Chirenda will meet the general residence requirements for Australian Citizenship on 7 December 2016, but that this date will change if he leaves Australia for any period.
On 3 July 2014, Chirenda applied to this Tribunal for a review of the Citizenship Decision.
ANALYSIS
Persons aged under 18 years – s 21(5)
Section 21(5) of the Citizenship Act, titled “Person aged under 18”, provides that a person is eligible to become an Australian citizen if the Minister is satisfied that the person is aged under 18 years at the time the person made the application for citizenship and is a “permanent resident” at the time the person applied for citizenship and at the time of the Minister’s decision on the application.
It is not in dispute that Mr Chirenda satisfies s 21(5) of the Citizenship Act.
However, s 24(2) of the Citizenship Act provides that the Minister may refuse to approve a person becoming an Australian citizen, despite the person being eligible to become an Australian citizen under certain provisions of the Citizenship Act, including s 21(5) of the Citizenship Act.
The Department has developed policy in the form of the Australian Citizenship Instructions (ACIs). The preamble to the ACIs states:
The role of the ACI's is to support the Australian Citizenship Act 2007. The Instructions provide guidance on policy in relation to the interpretation of, and the exercise of powers under, the Act and the Regulations. Decision makers must be mindful that policy must not be applied inflexibly. Policy cannot constrain the exercise of delegated powers.
Chapter 5 of the ACIs provides policy guidance in relation to applications for citizenship by conferral. Of relevance here, is paragraph 5.11.1 of the ACIs, which states:
The discretion in s 24(2) to refuse to approve an applicant becoming an Australian citizen despite being eligible under s 21(5) would usually be exercised where the applicant 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 below. [Emphasis added]
Paragraph 5.11.2 of the ACIs states:
5.11.2 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 less than 18 years of age at the time of decision on the application and the child is living in Australia.
Paragraph 5.12 of the ACIs, titled “Applicants aged 16 or 17”, provides the following guidance in relation to citizenship applicants aged 16 and 17:
Applicants aged 16 and 17 at time of application must make an application on a form that contains no other application.
Applicants aged 16 and 17 would not usually be approved under s24 unless they are permanent residents at the time of application and decision and also meet the following policy guidelines:
· satisfies the residence requirement (unless they would suffer significant hardship or disadvantage if they had to meet this requirement). See section 5.17 Ministerial discretion – significant hardship or disadvantage (s22(6)) for guidance
· understands the nature of an application
· possesses a basic knowledge of the English language
· has an adequate knowledge of the responsibilities and privileges of Australian citizenship at the time of decision
· is likely to reside or continue to reside, or maintain a close and continuing association with Australia.
……..
In the case of an applicant who does not meet the policy guidelines above, decision makers must consider the full circumstances of the case, including the best interest of the child (see section 5.11.2 Best interests of the child) to determine whether the application nevertheless warrants approval because of the unusual nature of those circumstances. [Emphasis added]
It is uncontroversial that in reviewing a decision, the Tribunal will ordinarily apply a statement of Ministerial policy, such as the ACIs, unless “the policy is unlawful or unless its application tends to produce an unjust decision in the circumstances of the particular case”: see Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634 at 645 per Brennan J. There is no cogent reason why the ACIs should not apply in Mr Chirenda’s case.
As stated, Mr Chirenda was 17 at the time of the Citizenship Application. As such, Mr Chirenda is required by paragraph 5.12 of the ACIs (set out in paragraph 18 above) to have been a “permanent resident” at the time of the Citizenship Application and the Citizenship Decision (which he was) and to satisfy the “general residence requirement” (in s 22(1) of the Citizenship Act), unless he would suffer “significant hardship or disadvantage” if he had to meet that requirement.
General residence requirement
Section 22(1) of the Citizenship Act sets out the “general residence requirement”, and s 22(1A) and s 22(1B) of the Citizenship Act allow an applicant a certain amount of overseas absences for the purpose of satisfying the “general residence requirement”, as follows:
22 General residence requirement
(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.
Overseas absences
(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 the 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.
Mr Chirenda first arrived in Australia on 19 December 2010. As such, Mr Chirenda had not been “present in Australia” for the period of four years immediately before the Citizenship Application and, therefore, does not satisfy s 22(1)(a) of the Citizenship Act.
Mr Chirenda was absent from Australia for 1047 days in the four years immediately before the Citizenship Application. Consequently, Mr Chirenda exceeded the 12 month allowable absence limit in s 22(1A) of the Citizenship Act and, therefore, is unable to satisfy s 22(1A) of the Citizenship Act and, it follows, s 22(1)(a) of the Citizenship Act.
Mr Chirenda became a “permanent resident” on 12 May 2011 and was a “permanent resident” for the period of 12 months immediately before the Citizenship Application. However, Mr Chirenda was only present in Australia for 174 days during this 12 month period and was absent from Australia for 191 days in this 12 month period. Consequently, Mr Chirenda exceeded the 90 day allowable absence limit in s 22(1B) of the Citizenship Act and, therefore, is unable to satisfy s 22(1B) of the Citizenship Act and, it follows, s 22(1)(c) of the Citizenship Act.
Therefore, Mr Chirenda does not satisfy the “general residence requirement” in s 22(1) of the Citizenship Act for the purposes of paragraph 5.12 of the ACIs.[2]
[2] There is nothing in Mr Chirenda’s circumstances that attracts the application of the “special residence requirement” in s 22A or s 22B of the Citizenship Act or the “defence service requirement” in s 23 of the Citizenship Act.
Significant hardship or disadvantage
As stated above (in paragraph 20), according to paragraph 5.12 of the ACIs, an applicant for citizenship aged 16 or 17 need not meet the “general residence requirement” in s 22(1) of the Citizenship Act if they would suffer “significant hardship or disadvantage” if they had to meet this requirement. Thus, although Mr Chirenda does not meet the “general residence requirement” in s 22(1) of the Citizenship Act he may nevertheless be eligible for Australian citizenship if it can be established that he would suffer “significant hardship or disadvantage” if he had to meet this requirement.
Paragraph 5.17.2 of the ACIs provides the following guidance on what circumstances the Minister will take into account when assessing whether an applicant would suffer “significant hardship or disadvantage” if required to meet the general residence requirement:
The Macquarie Dictionary Fifth Edition makes the following definitions:
significant important; of consequence
hardshipa condition that bears hard upon one; severe toil, trial, oppression, or need
disadvantage absence or deprivation of advantage; any unfavourable circumstance or condition
People would normally be required to demonstrate some or all of the following circumstances:
· inability to gain employment is restricted to Australian citizens, and that comparable or alternative employment is not reasonably available
· difficulty 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.
· academic (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 major cause for the significant hardship or disadvantage. Decision makers will need to assess each application on its merits with particular reference to all circumstances of the case to assess 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 significant hardship or disadvantage. There are 2 separate requirements. 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.
The onus is on the applicant to provide the evidence to support the application. Decision makers should also be aware of situations where it appears that a person takes a course of action for the sole purpose of availing themselves of the exercise of this discretion.
When making a decision regarding whether a person’s circumstances constitute “significant hardship or disadvantage” officers should be aware of the difference between personal needs and personal wants.
Personal needs relate to situations which could 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 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 places may be limited to Australian citizens or permanent humanitarian visa holders.
Statutory Declaration of Mr Chirenda
In his Statutory Declaration, made on 23 September 2014 (Chirenda SD)[3], Mr Chirenda makes the following claims regarding his circumstances and the consequences that would follow if he had to meet the general residence requirement and, therefore, be denied Australian citizenship:
· He was prevented from immigrating to Australia immediately on being granted his Subclass 457 (Business (Long Stay)) visa in 2008 due to his father’s financial position: Chirenda SD at [5], [8], [12] and [30];
· He is the only member of his family in Australia who has not been granted Australian citizenship and that this is causing him “quite a bit of distress”: Chirenda SD at [15];
· He would like to join the Royal Australian Navy (RAN) after his year 12 school exams (which requires him to be an Australian citizen), but, if he is unable to join the RAN, he will be forced into a situation where he will have to do “menial” work to get by, and will be unable to assist his family (financially) in a meaningful way: Chirenda SD at [20];
· His father was diagnosed with “Stage 3” lung cancer in 2012, and he would like to be able to assist his family (financially) in a meaningful way during his father’s recovery : Chirenda SD at [9] and [11];
· If he is able to join RAN, he believes he will obtain RAN accommodation and be able to move out of the family home, thereby enabling his brother (currently living in South Africa) to take his place in his family’s home in Australia: Chirenda SD at [13] and [21];
· If he is not granted Australian citizenship, he will suffer severe financial hardship as his only option pursue a RAN career path would be to start studying an appropriate course at university or TAFE, his father cannot afford to pay for his university or TAFE studies and he is unsure whether he would be able to support himself through such studies: Chirenda SD at [23] to [24];
· It is a waste of 2 years of his life to wait until December 2016 (i.e. when he may satisfy the general residence requirement for citizenship in s 22(1) of the Citizenship Act) before reapplying for Australian citizenship and he is unsure whether the “permanent resident” visa, he currently holds, will be extended until this time: Chirenda SD at [27] to [28]; and
· If he has to return to Zimbabwe, he will have to leave behind members of his immediate family and will have difficulty finding an appropriate job in Zimbabwe: Chirenda SD at [29].
[3] In a subsequent Statutory Declaration, made on 23 October 2014, Mr Chirenda amended his Statutory Declaration, made on 23 September 2014, to correct two errors. The first error was that his father was diagnosed with Stage 3 lung cancer in 2012 and not in 2010, as original stated. The second error was that his mother’s name had been spelt incorrectly, it should be spelt “Cordelia Nyasha Shamu”.
Mr Chirenda made substantially similar verbal submissions before the Tribunal.
Statutory Declaration of Mr Chirenda’s father
Mr Chirenda also provided a Statutory Declaration, made by his father (Mr Givemore Chirenda) on 23 October 2014 (Chirenda’s Father’s SD). Chirenda’s Father’s SD repeats many of the claims made by Mr Chirenda in the Chirenda SD regarding the hardship that Mr Chirenda will face if he is unable to obtain Australian citizenship. Relevantly, Chirenda’s Father’s SD states:
· There is “no assurance or reason that [Mr Chirenda] will be given another permanent residence visa that would enable him to apply for his citizenship” and once his current permanent residency visa expires [Mr Chirenda] may be in a position “where he is forced to return to Zimbabwe” where he “would face enormous emotional and financial hardship”: Chirenda’s Father’s SD at [15] to [17];
· Without Australian citizenship, Mr Chirenda’s options will be very limited, and Mr Chirenda will not be able to go to university as he will not be eligible for a HECS-HELP loan (i.e.as a non-citizen) and his family is unable to financially support him in his studies: Chirenda’s Father’s SD at [21]; and
· Without Australian citizenship, Mr Chirenda would not be able to pursue his ambition of joining the RAN and would be forced to “do something irrelevant to his goals”: Chirenda’s Father’s SD at [22].
RAN eligibility
Australian citizenship is a requirement for entry into the RAN and Mr Chirenda raises his ineligibility to join the RAN as the main form of hardship that he will suffer if he is refused Australian citizenship.
As stated above (in paragraph 27), paragraph 5.17.2 of the ACIs provides that “inability to gain employment on the grounds that employment is restricted to Australian citizens” may, in some situations, amount to “significant hardship or disadvantage.” However, paragraph 5.17.2 of the ACIs requires that, for this to be the case, a person must demonstrate that “comparable or alternative employment is not reasonably available”.
Mr Chirenda has not demonstrated that refusal of Australian citizenship will prevent him from obtaining “alternative employment”. Instead, his evidence suggests that alternative, albeit “menial”, employment is a possibility for him. Consequently, consistent with paragraph 5.17.2 of the ACIs, Mr Chirenda has not demonstrated “significant hardship or disadvantage” in relation to his “inability to gain employment” as a consequence of being refused Australian citizenship.
As submitted by the Minister, properly characterised, Mr Chirenda’s desire to join the RAN is merely an aspiration. It is a “personal want” as opposed to a “personal need” in the sense described in paragraph 5.17.2 of the ACIs: refer to paragraph 27 above. The fact that being denied Australian citizenship prevents Mr Chirenda from joining the RAN and obtaining RAN income, part of which he says he could then contribute to his family, does not amount to significant “financial” hardship or disadvantage as any income he earns from “alternative employment” could be put to the same use. Similarly, any benefit to Mr Chirenda’s family that may result from Mr Chirenda securing RAN accommodation could equally arise from the applicant putting his income from “alternative employment” towards his family’s housing costs.
Refusal to grant Mr Chirenda citizenship, does not prevent Mr Chirenda from joining the RAN in the future. As stated above (in paragraph 10), unless Mr Chirenda leaves Australia for any period he will meet the “general residence requirement”, in s 22(1) of the Citizenship Act, on 7 December 2016. At this time, Mr Chirenda will be able to lodge a further application for Australian citizenship. While the period of delay before being eligible to become an Australian citizen and join the RAN may seem unacceptable to 18 year old Mr Chirenda, absent any demonstrated significant financial impact, the sense of frustration that Mr Chirenda may feel at being temporarily prevented from pursing a particular career path does not amount to “significant hardship or disadvantage” within the meaning and for the purposes of paragraph 5.17.2 of the ACIs.
Refusal to grant Mr Chirenda citizenship, would not prevent Mr Chirenda from taking steps to pursue his goal of joining the RAN by, for example, undertaking relevant study or work experience: refer to paragraph 38 to 40 below.
Further, the Tribunal notes that Mr Chirenda’s eligibility to join the RAN is contingent not only on him being an Australian citizen but also on him passing various compulsory RAN entry tests.[4] Thus, the grant of Australian citizenship is not the only hurdle that Mr Chirenda must overcome in order to join the RAN.
[4] See Kamahli v Minister for Immigration and Citizenship [2012] AATA 730 at [41] being a case which involved similar facts to Mr Chirenda’s case, albeit that the applicant in Kamahli was ineligible to join the Australian Defence Force (as opposed to the RAN) as a result of being refused Australian citizenship.
Hardship relating to study expenses
Mr Chirenda points to his ineligibility for a university HECS-HELP loan as a form of hardship that he will suffer if he is refused Australian citizenship. The fact that it would be financially advantageous if Mr Chirenda could acquire Australian citizenship, including because he would not have to pay the higher university fees applicable to overseas (non-citizen) students, is not unusual or exceptional amongst applicants for Australian citizenship and is not, by itself, a reason to confer citizenship: see Park and Minister for Immigration and Citizenship [2010] AATA 886 at [29].
The Tribunal notes that eligibility for HECS-HELP is specifically described at paragraph 5.17.2 of the ACIs as a “personal want”, in contrast to a “personal need”, that generally does not constitute “significant hardship or disadvantage”.
Further, Mr Chirenda has not demonstrated that refusal of Australian citizenship will limit or restrict his academic potential to the extent that is would cause him “significant hardship or disadvantage”, within the meaning and for the purposes of paragraph 5.17.2 of the ACIs, either by impacting on his ability to finance further studies or otherwise.
Hardship upon return to Zimbabwe
Mr Chirenda raises the potential emotional and financial hardship that he will face if he is forced to return to Zimbabwe as a consequence of being refused Australian citizenship.
Mr Chirenda’s current visa (i.e. a Subclass 856 Employer Nomination (Residence) (Class BW) visa), which was granted to him on 12 May 2011, is a “permanent visa” pursuant to s 30(1) of the Migration Act 1958 (MA), which confers two separate permissions on Mr Chirenda, namely: (i) permission to remain in Australia indefinitely; and (ii) permission to travel to and enter Australia for 5 years from the date of grant (i.e. up to 12 May 2016).
Pursuant to s 6 of the MA, Mr Chirenda will broadly speaking remain a “permanent resident” as long as he: (i) is present in Australia and holds a “permanent visa”; and (ii) is overseas and holds a “permanent visa” and was present in Australia and held a “permanent visa” immediately before he last left Australia.
Time spent outside Australia may affect the calculation of Mr Chirenda’s permanent residence period in Australia and may increase the period of time before Mr Chirenda can satisfy the “general residence requirement” in s 22(1) of the Citizenship Act. However, Mr Chirenda will only be prevented from returning to Australia (and, therefore, jeopardise his ability to satisfy the “general residence requirement”) if he chooses to be overseas after 12 May 2016, without making appropriate visa arrangements with the Department beforehand.
Subject to Mr Chirenda travelling oversea after 12 May 2016 (a circumstance which is entirely within Mr Chirenda’s control), Mr Chirenda will not need to secure another visa to maintain his “permanent residence” status up until the date he satisfies the “general residence requirement”, being 7 December 2016.
Mr Chirenda’s visa does not require him to leave Australia and return to Zimbabwe. Further, refusal of Australian citizenship will not cause Mr Chirenda to be required to leave Australia and return to Zimbabwe and will not affect his “permanent residence” status. As such, Mr Chirenda’s claims of “hardship” in this respect are without merit.
DECISION
For the above reasons, the Tribunal affirms the Citizenship Decision.
I certify that the preceding forty seven (47) paragraphs are a true copy of the reasons for the decision herein of Senior Member C R Walsh ......(Sgd) A Tran...................................
Associate
Dated 6 February 2015
Date of hearing 30 January 2015 Representative for the Applicant Self Representative for the Respondent Mr D Carroll Solicitors for the Respondent Australian Government Solicitor
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