DANIAL ABDUL KADIR and MINISTER FOR IMMIGRATION AND CITIZENSHIP

[2010] AATA 438

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2010] AATA 438

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No 2010/0704

GENERAL ADMINISTRATIVE DIVISION		)
Re		DANIAL ABDUL KADIR

Applicant

And MINISTER FOR IMMIGRATION AND CITIZENSHIP

Respondent

DECISION

Tribunal G. D. Friedman, Senior Member

Date11 June 2010

PlaceMelbourne

Decision The Tribunal affirms the decision under review.

..................[signed]..............

Senior Member

CITIZENSHIP – applicant aged under 18 years – whether applicant would suffer significant hardship or disadvantage if citizenship not granted

Administrative Appeals Tribunal Act 1975 s 34J

Australian Citizenship Act 2007  ss 21, 24

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

REASONS FOR DECISION

11 June 2010   G.D. Friedman, Senior Member

1.        Danial Abdul Kadir is a citizen of Singapore who was born in 1999 and came to Australia in 2001 with his family as a holder of a permanent visa.  On 19 January 2010 a delegate of the respondent refused his application for Australian citizenship on the grounds that he would not suffer significant hardship or disadvantage if citizenship is not granted.

2. With the consent of the parties the Tribunal has carried out its review under s 34J of the Administrative Appeals Tribunal Act 1975 without holding a hearing.

LEGISLATIVE BACKGROUND

3.      Section 21 of the Australian Citizenship Act 2007 (the Act) provides the eligibility criteria for the grant of Australian citizenship:

…

(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.

4.      Section 24 of the Act provides:

(1)If a person makes an application under section 21, the Minister must, by writing, approve or refuse to approve the person becoming an Australian citizen.

(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).

5.      Chapter 5 of the Australian Citizenship Instructions (the guidelines) provides guidance relating to Citizenship by Conferral in s 21 of the Act.  The Tribunal is required to have regard to the guidelines unless there are cogent reasons for not doing so (Drake v Minister for Immigration and Ethnic Affairs (No.2) (1979) 2 ALD 634). The Tribunal finds it is appropriate to have regard to those guidelines.

6.      The guidelines state that in making a decision on whether to refuse or approve an application, the primary considerations are the legislative requirements, the best interests of the child and the policy guidelines in Chapter 5.  Under the guidelines applicants under the age of 16 years applying individually in their own right would usually be approved if they:

·     hold a permanent visa; and

·     are living with a responsible parent who is not an Australian citizen and consents to the application, and would otherwise suffer significant hardship or disadvantage.

ISSUE

7.      Danial is aged under 16 years, holds a permanent Australian visa and lives with a parent who is not an Australian citizen.  The only issue before the Tribunal is whether he would suffer significant hardship or disadvantage if his application is not granted.

WHAT IS SIGNIFICANT HARDSHIP OR DISADVANTAGE?

8.      Attachment B to Chapter 5 of the guidelines refers to the definition of significant hardship or disadvantage in the Macquarie Concise Dictionary and Collins Concise English Dictionary, Australian Edition:

·     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.

9.      The policy states that 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.

The policy also notes that evidence of significant hardship and disadvantage is required, with supporting documentation, and that decision makers must be mindful of the difference between personal needs (which may give rise to significant hardship or disadvantage) and personal wants (aspirations that generally do not constitute hardship).  The onus is on the applicant to provide supporting evidence.

WOULD DANIAL SUFFER SIGNIFICANT HARDSHIP OR DISADVANTAGE IF HE IS NOT GRANTED AUSTRALIAN CITIZENSHIP?

10.     In his application Danial claims that if his application for Australian citizenship is refused he will suffer significant hardship or disadvantage.  In a letter dated 19 December 2009 to the Department of Immigration and Citizenship Danial’s father stated that the family has decided to remain in Australia on a permanent basis, although his wife travels to Singapore frequently to visit relatives.  He said that his older son is an Australian citizen and his daughter has been approved for citizenship, while his wife will lodge an application when she fulfils the residence requirements.  He stated that he is currently working for an airline in Malaysia until he can find a position in Australia, and that Danial lives with him.  Danial’s father said that an Australian passport is needed because Danial requires an exit permit each time he departs from Singapore using his Singaporean passport after his 11^th birthday on 27 January 2010 until he fulfils his national service requirements when he turns 18 years, and that this would cause additional troublesome restrictions to arrange for Danial to join the rest of his family in Australia at the end of 2010.

11.     The Tribunal accepts that the necessity of obtaining an exit permit for Danial to depart from Singapore may require some administrative tasks or formalities, but the current arrangements allow him to travel internationally using his Singaporean passport, and there is no evidence that this would constitute a significant hardship as defined in the guidelines.  Although it is understandable that Danial would prefer to travel on an Australian passport, this is a personal want by him and his family, rather than a personal need.  Danial’s safety would not be jeopardised by travelling on a Singaporean passport.

12.     Further, the Tribunal takes into account that Danial and his father live in Malaysia, and there is no evidence to suggest that Danial needs to meet his mother and other relatives in Singapore, so he could avoid the requirements of obtaining an exit permit from Singapore by meeting them in Australia or elsewhere.  Given that his father works for an airline, this would appear to be feasible, and there is no evidence that avoiding travel to Singapore would cause him hardship or disadvantage.

13.     For these reasons the Tribunal finds that Danial would not suffer significant hardship or disadvantage if he is not granted Australian citizenship.  The Tribunal also finds that neither the requirement of seeking an exit permit from Singapore nor any restriction on meeting relatives in Singapore constitutes exceptional circumstances that would justify approval of the application for citizenship outside the guidelines.  Further the Tribunal concludes that Danial’s best interests are served by him having the same citizenship as his parents until they become Australian citizens, to ensure he is not separated from them.

DECISION

14.     The Tribunal affirms the decision under review.

I certify that the fourteen [14] preceding paragraphs are a true copy of the reasons for the decision of:

G.D. Friedman, Senior Member

…………………………………[signed]………………………………

Grace Horzitski  Associate

Date of decision:  11 June 2010

Advocate for the applicant:         Self-represented, assisted by his father

Solicitor for the respondent:        Australian Government Solicitor