CQJV and Minister for Immigration and Border Protection (Citizenship)

[2017] AATA 653

CQJV and Minister for Immigration and Border Protection (Citizenship) [2017] AATA 653 (5 May 2017)

Division:GENERAL DIVISION

File Number(s):      2016/6436

Re:CQJV  

APPLICANT

AndMinister for Immigration and Border Protection

RESPONDENT

DECISION

Tribunal:Professor R McCallum AO, Member

Date:5 May 2017

Place:Sydney

The decision of the Minister’s delegate to refuse to grant the Applicant’s Australian Citizenship be set aside with a direction that pursuant to s 22(6) of the Australian Citizenship Act 2007 (Cth), the twelve month period preceding 13 September 2016 is to be treated as one during which the Applicant was present in Australia as a permanent resident on the grounds of the significant hardship or disadvantage which she has suffered owing to her lack of Australian Citizenship.

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

Professor R McCallum AO, Member

CATCHWORDS

IMMIGRATION AND CITIZENSHIP – application for Australian citizenship by conferral – whether the applicant satisfies the general residence requirement – ministerial discretion – decision set aside.

LEGISLATION

Australian Citizenship Act 2007 (Cth) s 22

Higher Education Legislation Amendment (Miscellaneous Measures) Act 2015 (Cth)

Higher Education Support Act 2003 (Cth)

CASES

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

SECONDARY MATERIALS

Department of Immigration and Border Protection, Citizenship Policy (Department of Immigration and Border Protection, Canberra, 2016)

United Nations Convention on the Rights of the Child (Opened for signature, ratification and accession by General Assembly resolution 44/25 of 20 November 1989) (entered into force 2 September 1990) (“CRC”)

REASONS FOR DECISION

Professor R McCallum AO, Member

5 May 2017

Introduction

1. The Applicant, CQJV, was born in New Zealand in 1998. She immigrated to Australia with her family in May 2002 when she was a very small child. As a New Zealand citizen who became resident in Australia, the Applicant was categorised under the current immigration laws as a lawful non-citizen and she held a Special Category Visa (SC visa).

2. The Applicant has been living permanently in Australia since February 2003, and she has attended schools from her kindergarten year up to first year university this year.

3. In September 2015, the Applicant’s father applied for the Applicant to be granted permanent residency. She became an Australian permanent resident on 2 September 2016 when she was granted an Employer Nomination Scheme (subclass 186) visa.

4. In late 2015, the Parliament of Australia enacted the Higher Education Legislation Amendment (Miscellaneous Measures) Act 2015 (Cth) which received the Royal Assent on 30 November 2015. Schedule 1 of this Act amended the Higher Education Support Act 2003 (Cth) (the HESA Act).

5. Put briefly, from 1 January 2016, New Zealand citizens who fulfilled specified residence requirements and who held SC visas, could obtain Higher Education Loan Scheme (HELP) student loans to financially assist them to study at Australian universities.

6. These changes took place after the Applicant’s father had lodged her application for permanent residence.

7. When the Applicant received permanent residency in September 2015, she lost her SC visa status. This meant that if she applied to study at university in the 2017 academic year, she could not access a student loan under the HELP scheme, even though she fulfilled the residence requirements of the scheme.

8. Therefore, on 13 September 2016, the Applicant applied for Australian citizenship. As she did not have twelve months permanent residency at that time, she applied for this requirement to be relaxed on the grounds of significant hardship or disadvantage.

9. On 27 October 2016, a delegate of the Minister for Immigration and Border Protection refused the Applicant’s application for Australian citizenship. The Applicant now appeals to this Tribunal (AAT2).

THE LEGISLATION

1. The relevant legislation is the Australian Citizenship Act 2007 (Cth) (the Act).

2. As the Applicant was aged 17 years when she made her application for Australian citizenship, her application was dealt with under section 21(5) of the Act. Section 21(5) provides as follows:

   Person aged under 18

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

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

   (b)       Is a permanent resident:

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

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

3. Section 22(1)(c) of the Act covers the general residence requirement applicable to the Applicant. Section 22(1) provides 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.

4. Section 22(6) of the Act contains a discretion to relax the general residence requirements on grounds of significant hardship or disadvantage. Section 22(6) provides as follows:

   Ministerial discretion—person in Australia would suffer significant hardship or disadvantage

   (6)For the purposes of paragraph (1)(c), the Minister may treat a period as one in which the person was present in Australia as a permanent resident if:

   (a)The person was present in Australia during that period (except as a permanent resident or an unlawful non citizen); and

   (b)The Minister is satisfied that the person will suffer significant hardship or disadvantage if that period were not treated as one during which the person was present in Australia as a permanent resident.

5. Finally, s 24(2) enables the Minister or a delegate to refuse an application for Australian citizenship on grounds of policy. Section 24(2) provides as follows:

   (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).

THE ISSUE

1. The parties agree that the Applicant satisfies ss (a) and (b) of s 22(1). It is clear that on 13 September 2016, when the Applicant applied for Australian citizenship, she did not satisfy the requirement in ss (c) of s 22(1) because she had not been a permanent resident for twelve months.

2. Therefore, the issue before the Tribunal as it stands in the position of the Minister, is whether the discretion in s 22(6) of the Act should be exercised in favour of the Applicant on the grounds that she will suffer significant hardship or disadvantage.

THE HEARING

1. The date of the hearing was 20 April 2017.

2. The Applicant attended the hearing by telephone which had a speaker function which was activated. Her father was present and also spoke to the Tribunal via the telephone.  The Applicant gave evidence by affirmation over the telephone. I found the Applicant to be a truthful witness.

3. The Applicant stated that she did not learn about the changes to the HESA Act which gave New Zealand SC Visa holders access to the HELP scheme until a couple of months after her father had lodged her permanent residency application in September 2015.

4. The Applicant stated that on completion of Year 12 in late 2016, she received an Australian Tertiary Admission Rank (ATAR) of 97.8.

5. The Applicant stated that in early 2017, she enrolled at the University of New South Wales in a Bachelor of Psychology (Honours) degree, and in a Bachelor of Laws degree.

6. The Applicant stated that as she was unable to access the HELP scheme and she was required to pay her university fees upfront. Her neighbour loaned her a little over $3,000 so that she could pay her 2017 Semester 1 fees.

7. The Applicant stated that she had applied for Youth Allowance, however there is a 2 year waiting period for permanent residents and therefore, she was unable to access these payments.

POLICY

1. In exercising discretionary powers under s 24(2) of the Act, to refuse a grant of Australian Citizenship to the Applicant, the Minister’s delegate took into account government policy. This Tribunal is bound by government policy, unless there are cogent reasons not to do so.  There are no cogent reasons why I should not have regard to government policy.

2. Government policy, on all aspects of Australian citizenship, is to be found in the Citizenship Policy document which came into effect on 1 June 2016.

3. Chapter 7 is concerned with citizenship by conferral. At page 77 of the Citizenship Policy, it is stated that:

   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:

   Satisfy the residence requirement (unless they would suffer significant hardship or disadvantage if they had to meet this requirement).

4. Chapter 3 deals with various definitions including “Significant Hardship or Disadvantage / Detriment”. This definition is unpacked at p 33 of the Citizenship Policy. It relevantly provides as follows:

   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:

   §significant - important; of consequence

   §hardship - a condition that bears hard upon one; severe toil, trial, oppression, or need

   §disadvantage - absence or deprivation of advantage; any unfavourable circumstance or condition

   §detriment - loss, damage, or injury

   §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.

   …

   For conferral

   People would normally be required to demonstrate some or all of the following circumstances:

   §inability to gain employment on the grounds that the 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 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:

   §significant hardship

   or

   §disadvantage 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.

THE UNITED NATIONS CONVENTION ON THE RIGHTS OF THE CHILD

1. Australia has ratified the United Nations Convention on the Rights of the Child (CRC). The Applicant was a child (under the age of 18) when she applied for Australian Citizenship, and she was a child when her application was refused.

2. The Applicant is no longer a child for the purposes of the CRC (see article 1 of the CRC) as she is now aged 18. However, taking into account all of the circumstances, in my view it is relevant for me to have regard to the CRC.

3. Paragraph 1 in Article 3 of the CRC is as follows:

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

CONSIDERATION

1. I have quoted above the relevant policy on significant hardship or disadvantage/detriment which appears in Ch 3 of the Citizenship Policy.

2. In the Applicant’s circumstances, the policy provides that:

   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).

3. In other words, the inability to access the HELP scheme generally does not constitute hardship. Of course, the words “generally do not constitute hardship” connote that there will be some circumstances which will constitute hardship. This is further recognised in the policy which states as follows:

   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.

4. Therefore, I am required to assess the oral and written evidence before the Tribunal to determine whether in the Applicant’s circumstances, her not holding “…Australian citizenship is the only or major cause of the significant hardship or disadvantage.”

5. First, from the evidence before the Tribunal, the Applicant appears to be one of a small cohort of New Zealand citizen students in Australia who did not know of the impending change in the law enabling them to access the HELP scheme when they applied for permanent residence. If the Applicant had completed her Year 12 studies in 2015 and had applied for fee assistance under the HELP scheme in early 2016, her SC Visa status would have enabled her to receive a HELP loan. 

6. Second, the Applicant has lived in Australia for the past 14 years. From the evidence before the Tribunal, she has shown herself to be a gifted and dedicated student. In Year 12, she was the Captain of her High School in Western Sydney. Her high school nominated the Applicant for the future leader’s scheme at the University of Sydney. In an email from the University of Sydney Admissions Office dated 6 October 2016, the Applicant was guaranteed a place at the University of Sydney for a series of specified courses, provided that she attained an ATAR of 95 or above.

7. At the end of Year 12, the Applicant attained an ATAR of 97.8. As I noted above when summarising her evidence, the Applicant enrolled at the University of New South Wales in a Bachelor of Psychology (Honours) degree, and in a Bachelor of Laws degree.

8. Third, given her family circumstances, the Applicant was unable to afford to pay her university fees upfront.

9. The Applicant’s father is employed, however, her mother is not employed and she holds a pensioner concession card. A letter from Dr Bernard St George dated 15 August 2016 is before the Tribunal. Dr St George states that the Applicant’s mother has been suffering from a mental illness for quite some time.

10. The Applicant was only able to commence her studies this year because she obtained a loan from a neighbour which enabled her to pay her fees upfront.

11. The Respondent argued before the Tribunal that the failure to access the HELP scheme was not a significant hardship for the Applicant because next September she will have been a permanent resident for 12 months and can then re-apply for Australian citizenship.

12. For the sake of completeness, I note that on 20 April 2017, that is, on the day of the hearing, a joint media statement was published on the website of the Department of Immigration and Border Protection.  The media statement was by the Hon. Peter Dutton MP Minister for Immigration and Border Protection, and the Hon. Malcolm Turnbull, Prime Minister, titled “Strengthening the Integrity of Australian Citizenship”.

13. The joint media statement provided in part as follows:

    The Turnbull Government will strengthen Australian citizenship by putting Australian values at the heart of citizenship processes and requirements.

    Our reforms will ensure applicants are competent in English, have been a permanent resident for at least four years and commit to embracing Australian values.

14. In this decision, I take no account of the pending changes to the law governing Australian Citizenship. These announced alterations have not been legislated into law, nor has the date of their operation been announced.

15. Having regard to the Applicant’s family circumstances, and having further regard to her track record as a gifted and highly motivated student, I make the following finding.

16. I find that the Applicant’s lack of Australian citizenship is a significant cause of the significant hardship or disadvantage which she suffers because she is unable to access the HELP scheme.

17. I appreciate that this finding is contrary to the finding of the Minister’s delegate. However, I have had the advantage of receiving further evidence which was not available to the Minister’s delegate.

DECISION

1. The decision of the Minister’s delegate to refuse to grant the Applicant Australian Citizenship be set aside with a direction that pursuant to s 22(6) of the Australian Citizenship Act 2007 (Cth), the twelve month period preceding 13 September 2016 is to be treated as one during which the Applicant was present in Australia as a permanent resident on the grounds of the significant hardship or disadvantage which she has suffered owing to her lack of Australian Citizenship.

I certify that the preceding 48 (forty -eight) paragraphs are a true copy of the reasons for the decision herein of Professor R McCallum AO, Member

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Associate

Dated: 5 May 2017

Date(s) of hearing:	20 April 2017
Applicant:	In person
Solicitors for the Respondent:	Ms K Gawidziel, Australian Government Solicitor