Cudrea and Minister for Immigration and Citizenship
[2010] AATA 1036
•21 December 2010
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2010] AATA 1036
ADMINISTRATIVE APPEALS TRIBUNAL )
) No 2010/2552
GENERAL ADMINISTRATIVE DIVISION )
ReNicolae Cudrea
Applicant
AndMinister for Immigration and Citizenship
Respondent
DECISION
TribunalMr R P Handley, Deputy President
Date21 December 2010
PlaceSydney
DecisionThe decision under review is affirmed.
.....................[sgd]....................
Mr R P Handley
Deputy President
CATCHWORDS
IMMIGRATION & CITIZENSHIP – refusal to grant citizenship – applicant between 16 and 18 years of age at time of application – Australian Citizenship Instructions – applicant does not meet policy requirements - circumstances not unusual – decision under review affirmed
RELEVANT ACT
Australian Citizenship Act 2007 ss 21, 24
CITATIONS
Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24; (1986) 10 ALN N109; (1986) 66 ALR 299; (1986) 60 ALJR 560; [1986] HCA 40
Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634
Park and Minister for Immigration and Citizenship [2010] AATA 886
Re Pak and Department of Immigration and Citizenship [2010] AATA 157
Re Kim and Minister for Immigration and Citizenship [2010] AATA 198
OTHER AUTHORITIES
Australian Citizenship Instructions (in effect 21 September 2009 to 8 November 2009)
REASONS FOR DECISION
| 21 December 2010 | Mr R P Handley, Deputy President |
Mr Cudrea has applied to the Tribunal for a review of a decision of a delegate of the Minister of Immigration and Citizenship (the Minister) to refuse his application for Australian citizenship by conferral. The issue for the Tribunal is whether this is the correct or preferable decision.
Background
Mr Cudrea was born in the Republic of Moldova in August 1991. He arrived in Australia on 21 July 2000 at the age of eight on a subclass 457 Business (Long Stay)(Temporary) visa as a dependant of his father. Apart from a two‑month holiday in Moldova in 2010, he has been resident in Australia since July 2000 and has been granted further subclass 457 visas as a dependant. His most recently granted visa is valid until 9 February 2013.
On 14 August 2009, Mr Cudrea lodged an application for citizenship by conferral pursuant to s 21(5) of the Australian Citizenship Act 2007 (the Act). The application was refused by a delegate of the Minister on 21 May 2010 on the ground that his circumstances did not meet the relevant policy requirements outlined in the Australian Citizenship Instructions (the Instructions) and his circumstances did not otherwise warrant approval outside such policy. On 23 June 2010, Mr Cudrea applied to the Tribunal for a review of this decision.
The Legislative Framework and Policy
At the time Mr Cudrea made his application to become an Australian citizen, s 21(1) of the Act provided that a person may make an application to the Minister, and s 21(5) stated:
Person aged under 18
(5)A person is eligible to become an Australian citizen if the Minister is satisfied that the person is aged under 18 at the time the person made the application.
The power to approve, or to refuse to approve, a person becoming an Australian citizen is set out in s 24 of the Act, which provides relevantly:
24 Minister's decision
(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.
(1A)The Minister must not approve the person becoming an Australian citizen unless the person is eligible to become an Australian citizen under subsection 21(2), (3), (4), (5), (6), (7) or (8).
(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 24(2) does not state the factors that may be taken into account when exercising the discretion to refuse approval of a grant of citizenship, and the discretion of the decision-maker is therefore similarly unconfined (see Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 per Mason J at 40).
However, the Government has developed policy in the form of the Instructions to provide guidance to decision-makers. The introduction to the Instructions states that their role 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 should be mindful that policy must not be applied inflexibly. Policy cannot constrain the exercise of delegated powers under the Act.
Decision-makers should generally apply policy such as the Instructions unless the policy is unlawful or its application produces an unjust result in the circumstances of a particular case: Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634. I am not satisfied that there is any good reason why the Instructions should not be followed in the present case.
The Instructions specify criteria for determining citizenship applications. The relevant Instructions are those in effect immediately prior to 9 November 2009, which stated relevantly:
Person aged under 18 years (s 21(5))
… 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 requirements. 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.
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.
…
POLICY GUIDELINES
Applicants aged 16 years and over and under the age of 18
Applicants aged 16 years and over and under the age of 18 (that is, aged 16 or 17 years) must make an application on a form that contains no other application. This is set out in s 46(2A) of the Act.
Applicants aged 16 years and over and under the age of 18 would usually be approved under s 24 if they meet the following policy guidelines:
·is a permanent resident
·satisfies the residence requirements
·the applicant need not meet the residence requirements if this would cause significant hardship or disadvantage. See Attachment B - Significant hardship and disadvantage 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, to determine whether the application nevertheless warrants approval because of the unusual nature of those circumstances.
Guidance on whether it may be reasonable to consider a particular set of circumstances as unusual can be obtained from the National Office through the Citizenship Help Desk.
The Instructions set out above relevantly identify three primary considerations to be taken into account by the decision-maker: the legislative requirements, the best interests of the child and the policy guidelines. Mr Cudrea was aged under 18 at the time he made an application and therefore meets the legislative requirements in s 21. Moreover, since Mr Cudrea, is now 19 and is no longer a child, the best interests of the child are no longer a relevant consideration for the Tribunal on this review. Where the policy guidelines are not met, the decision-maker must also consider whether the application should, nevertheless, be approved because of the unusual nature of the circumstances.
In relation to significant hardship or disadvantage, Attachment B states:
ATTACHMENT B - SIGNIFICANT HARDSHIP AND DISADVANTAGE
The Macquarie Concise Dictionary and Collins Concise English Dictionary, Australian Edition make the following definitions:
significant
of consequence;
important or momentous
hardship
conditions of life difficult to endure;
something that causes suffering or privation
disadvantage
an unfavourable circumstance, thing, person;
injury, loss or detriment
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
·academic (eg 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.
Decision makers will need to assess each application on its merits. While policy is not to be applied inflexibly, it must be applied, unless there are special circumstances that would warrant consideration outside that policy.
Evidence of significant hardship and disadvantage is required (eg a statement in writing, with appropriate supporting documentation to demonstrate how they meet the legal and policy requirements).
The onus is on the applicant to provide the evidence to support the application.
Decision makers must be mindful of the difference between personal needs and personal wants.
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 are aspirations and generally do not constitute hardship (ie the right to vote, election to Parliament, HECS availability, representing Australia internationally in academics or sport).
Australian citizenship is not a requirement to study in Australia. Australian universities are permitted to admit students who are not Australian citizens. …
Mr Cudrea concedes that he does not satisfy the policy guidelines because he is not a permanent resident and does not satisfy the residence requirements set out in s 22. The Tribunal must therefore consider the full circumstances of the case to determine whether the application nevertheless warrants approval because of the unusual nature of those circumstances and, in particular, whether Mr Cudrea would suffer significant hardship or disadvantage by reason of the refusal of his application for citizenship.
Mr Cudrea’s Case
Mr Cudrea said he has resided in Australia since arriving on 21 July 2000 at the age of eight. He completed his secondary education at Blacktown Boys High School, sitting for and being awarded the Higher School Certificate (HSC) in 2009. Mr Cudrea stated that he regards Australia as his home, where his friends and future are.
Mr Cudrea said Moldova is a very small country (population 3.5 million) and his father initially left in order to find better employment elsewhere. His father first came to Australia in 1998 and Mr Cudrea, his mother and sister joined his father here in 2000. Mr Cudrea had by this time spent about a year studying English and, on arrival, he studied English intensively for another three months.
Mr Cudrea’s father, who does labouring type jobs in the construction industry, has just lost his third sponsor and is looking for another. He is hopeful of being successful in doing so. Mr Cudrea said that for the past six or seven years, his mother has worked at a Strathfield home for the aged as a personal carer. His sister, who is 10 years older than him, has been married to an Australian citizen for the past four or five years and has two children. She is a permanent resident and applying for Australian citizenship.
While at school, Mr Cudrea utilised the careers advisory service there and attended careers conventions. He said he has realised that being the holder of a temporary visa limits his choice of career. Not being a permanent resident bars him from applying for apprenticeships and, in particular, not being an Australian citizen bars him from applying to join the Australian Defence Force. His goal is to join the Royal Australian Air Force (RAAF). According to advice he received from a Department of Defence recruitment officer, he would otherwise stand a good chance of being accepted since he is young, fit and educated. This is very disappointing for him because his ambition is to become a RAAF pilot.
Mr Cudrea acknowledged that he can undertake tertiary study either at a TAFE college or university, but said this will be very expensive and an enormous burden on his parents causing them severe financial hardship. While at school, he undertook accounting and business service courses at TAFE as part of his HSC but found them very basic and uninteresting. The aviation and aeronautical engineering courses available at TAFE, of two years’ duration, are also quite basic and are the sort of material that would be covered in a couple of months if he was accepted into the Defence Force.
Mr Cudrea provided copies of various job advertisements and the covering emails he has sent in applying for these positions. To date, his applications have been unsuccessful. He had one response asking about his visa status and when he informed the prospective employer of his current status (that allows him to work), he heard nothing further. Five other responses have indicated that he does not have the experience for which many employers are looking.
Mr Cudrea, who speaks fluent English, said he and his parents speak a mixture of Russian and English at home. Both his parents are Russian speaking and Mr Cudrea speaks conversational Russian. However, he can only read very slowly in Russian and cannot write in Russian, in part because of the different alphabet. Mr Cudrea said it was compulsory for him to study Italian at high school for two years and he studied Italian for a further year, largely because of the good teacher, but it was not conversational Italian. He does not find learning languages particularly easy.
Mr Cudrea said he returned to Moldova in July 2010 for the first time since leaving, accompanying his father who was visiting his parents there. They were away for about two months, returning mid-September. They stayed with Mr Cudrea’s grandparents who live on the outskirts of the Moldovan capital, Chisinau. Mr Cudrea spent his time there with his grandparents and their friends and helping his grandfather in his large vegetable garden. Mr Cudrea also went with his father to Germany for five days – to Munich – to visit his father’s sister who lives there. In order to enter Germany, he and his father had to obtain tourist visas, which were only granted upon sponsorship from his father’s sister who is a German citizen.
Mr Cudrea said his grandparents speak Russian at home. His grandmother also speaks some Moldovan, like his father, but not his grandfather, who originally came from the Ukraine and also speaks Ukrainian. Mr Cudrea said he cannot speak Moldovan. When he was at school in Moldova before becoming to Australia, the first language was Russian and students did not start learning Moldovan until year 2, which he did not complete. Moldovan is a language similar to Romanian. Mr Cudrea said that since the collapse of the Soviet Union, a lot of people in Moldova condemn those who speak Russian. He said he thought it would take him at least two years to learn Moldovan during which time he would continue to be dependent on his parents.
Mr Cudrea said he also does not know “the culture of how they do things in Moldova” and with his being unable to speak Moldovan, he thinks it would be very difficult for him to get a decent job there. His grandparents, who are retired and living on a pension, would be unable to support him. Further, he could not enrol in university in Moldova because he did not finish school there, but, being over 18, he would be liable to do 12 months’ military service. His grandparents do not want him to return to Moldova because “it is not much of a life there”.
The Minister’s Case
Ms Collins, for the Minister, submitted that the Tribunal should exercise the Minister’s discretion to refuse Mr Cudrea’s application for citizenship because the circumstances of his case do not warrant a departure from departmental policy. While acknowledging that Mr Cudrea is eligible for citizenship pursuant to s 21(5) of the Act, he is not a permanent resident and the Tribunal should not be satisfied that he would suffer significant hardship or disadvantage in meeting the residence requirements. In particular, referring to the three sets of circumstances referred to in Attachment B (see above), Ms Collins said there is no evidence to indicate that his lack of citizenship prevents him obtaining employment. Mr Cudrea’s visa permits him to work and it appears from his evidence that most of his job applications have been unsuccessful as a result of his lack of experience.
The Minister acknowledges that Mr Cudrea is prevented from joining the Australian Defence Force and from obtaining various government subsidies by reason of his not being an Australian citizen. However, this does not prevent him from obtaining alternative employment. Moreover, his wish to join the RAAF is a ‘personal want’ and the guidelines state that failure to meet such aspirations does not generally constitute hardship.
The Minister contends that being required to obtain a visa to visit another country should not be considered hardship or a significant disadvantage. Also, in terms of tertiary education, lack of citizenship does not prevent Mr Cudrea enrolling in university or TAFE courses although he will have to pay higher fees as an international student.
Ms Collins submitted that Mr Cudrea’s circumstances are not unusual and are similar to those of many children who have accompanied their parents to Australia. The Minister acknowledges that Mr Cudrea has established connections and has friends here, but this is not unlike many children who have lived in Australia and studied here for a lengthy period. As a student in Australia, it is always open to Mr Cudrea to apply for student visas to continue his education in Australia, and it may be possible for him to apply for other visas in due course.
Ms Collins noted that Mr Cudrea has learned several different languages, and submitted that learning Moldovan will not constitute hardship. With regard to having to undertake military service if he returns to Moldova, it is not unusual for such a responsibility to be allied with citizenship of a country.
Discussion
As stated above, notwithstanding that Mr Cudrea, as the holder of a temporary visa, does not satisfy the residence requirements stipulated in the policy guidelines contained in the Australian Citizenship Instructions, the Tribunal must consider the full circumstances of his case. The Tribunal must determine whether his citizenship application warrants approval because of the unusual nature of his circumstances and, in particular, whether the residence requirements should be disregarded as a result of Mr Cudrea suffering significant hardship or disadvantage by reason of the refusal of his application for citizenship.
The evidence suggests that Mr Cudrea’s father came to Australia looking for better employment opportunities and that he and Mrs Cudrea have sought to provide Mr Cudrea with a good education in Australia. Having now finished his secondary education, Mr Cudrea aspires to be a RAAF pilot and has been thwarted in pursuing this by reason of the requirement that recruits must be Australian citizens. He is concerned by the expense of his continuing with tertiary education because of the international student fees that will need to be paid. His evidence indicates that his parents are not wealthy and have, at times, struggled to pay his school fees. Understandably, he would prefer not to impose any further financial burden on them.
However, Mr Cudrea’s visa permits him to work and, while to date he has not been successful in finding employment, it appears that in at least some instances this has been because of his lack of experience in the positions for which he has applied. In this, he is in a similar position to many young people trying to find employment for the first time. It is not an unusual situation.
Mr Cudrea also referred to his recent experience, while travelling on his Moldovan passport, of having to obtain a visa to enter Germany, which would not be required if he were able, as an Australian citizen, to obtain and travel on an Australian passport. The need to obtain a visa to enter another country is a common requirement and, in my view, there is nothing unusual about this. There are many countries which require Australian passport holders to obtain a visa before allowing entry.
With regard to educational opportunities, it is open to Mr Cudrea to apply for a student visa to enable him to study in Australia and, while he will be required to pay fees as an international student, a student visa would ordinarily permit him to work on a part-time or casual basis. I accept that this may impose a further financial burden on his parents but this is something they have managed in the past with the need to pay school fees. I agree with the Tribunal in Park and Minister for Immigration and Citizenship [2010] AATA 886 that there is nothing unusual about this.
Moreover, it is not surprising that after 10 years in Australia, Mr Cudrea has become acculturated and attached to the Australian way of life. Ms Collins referred to a number of recent Tribunal decisions in which applications for citizenship by students who are not permanent residents have been considered and whether their circumstances are unusual: for example, Re Pak and Department of Immigration and Citizenship [2010] AATA 157 (Pak); Re Kim and Minister for Immigration and Citizenship [2010] AATA 198.
In Pak, at [10], Justice Buchanan said, and I agree, that the fact that a student has spent a lengthy period studying in Australia, has formed close personal ties here and is sincere in wishing to become an Australian citizen is not unusual. In my view, it would not be considered ‘unusual’, in the sense of the word’s ordinary meaning of something which is ‘uncommon’, for students who have spent some years studying in a country other than that of their citizenship, and who have become acculturated into that community, to wish to remain there where to do so is perceived to be beneficial.
As Justice Buchanan pointed out in Pak, refusal of citizenship at this stage does not shut the door on a person later achieving permanent residency if the relevant requirements are met and, ultimately, in the future, being granted citizenship.
I accept that if Mr Cudrea has to return to Moldova this is likely to cause him some hardship because he may have to learn the Moldovan language and he may have some difficulty finding employment or gaining access to tertiary education. However, in my view any hardship or disadvantage would not be ‘significant’ in the sense of being important or momentous, bearing in mind that Mr Cudrea can speak Russian conversationally (Russian being a recognised language in Moldova), which would allow him to communicate. Moreover, until the expiry of his visa in February 2013, Mr Cudrea can work and study in Australia and, as mentioned above, it is open to him to apply for a student visa to enable him to study here.
With regard to having to undertake military service if he returns to Moldova, I agree with Ms Collins that this is commonly a requirement of citizenship of a country. Equally, it seems likely that citizenship will commonly be a prerequisite of entry into a country’s defence force.
Thus, in my view Mr Cudrea’s circumstances are not unusual and the rejection of his application for Australian citizenship by reason of his not satisfying the residence requirements will not cause him significant hardship or disadvantage such that his circumstances warrant approval of his citizenship application without the normal policy requirements being met.
Thus, the decision to not approve Mr Cudrea’s application for citizenship should be affirmed.
I certify that the 39 preceding paragraphs are a true copy of the reasons for the decision herein of Mr R P Handley, Deputy President.
Signed: .........[sgd]................................................................
A Veness, Associate
Date of Hearing: 16 December 2010
Date of Decision: 21 December 2010
Applicant representative: Self-represented
Respondent representative: Ms A Collins, Clayton Utz
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