Dhir and Minister for Immigration, Citizenship and Multicultural Affairs (Citizenship)

[2023] AATA 1228

Dhir and Minister for Immigration, Citizenship and Multicultural Affairs (Citizenship) [2023] AATA 1228 (16 May 2023)

Division:GENERAL DIVISION 

File Number(s):      2022/1516

Re:Jyoti Dhir  

APPLICANT

AndMinister for Immigration, Citizenship and Multicultural Affairs

RESPONDENT

DECISION

Tribunal:Mr S. Webb, Member

Date:16 May 2023

Place:Canberra

The decision under review is set aside and in substitution the Tribunal decides the Applicant’s child should not be refused conferral of Australian citizenship under s 24(2) of the Citizenship Act.

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Catchwords

AUSTRALIAN CITIZENSHIP – application for conferral of citizenship refused – child under 15 residing with non-citizen parent – permanent resident – applicable citizenship policy – relevant considerations – history and effects of family violence – significant hardship, disadvantage or detriment – best interests of the child – latitude to consider particular circumstances – decision set aside and substituted

Legislation
Administrative Appeals Tribunal Act 1975 (Cth), ss 37
Australian Citizenship Act 2007 (Cth), ss 21, 24, 52
Migration Regulations 1994 (Cth), ss 100.221

Cases
Minister for Home Affairs v G [2019] FCAFC 79

Secondary Sources
Australian Citizenship Policy Statement

Citizenship Procedural Instructions

REASONS FOR DECISION

Mr S. Webb, Member

16 May 2023

1. Jyoti Dhir is a citizen of the Republic of India who holds a permanent resident visa in Australia. She applied for conferral of Australian citizenship and included her 13 year old child (the Child) in the application. After repeated attempts, Ms Dhir failed to pass the citizenship test and her application was refused.[1] Subsequently, a delegate of the Minister decided to refuse to confer Australian citizenship on the Child. Ms Dhir applied for review of this decision by the Tribunal.

   [1] Documents relating to this decision are referred to, but not included in the documents given to the Tribunal under s 37 of the Administrative Appeals Tribunal Act 1975 (AAT Act). The documents (Schedule B and Schedule C to the decision in T2) were given to the Tribunal on 11 May 2022 and these are placed in Exhibit 2.

   Facts

2. The following facts are established by the materials before the Tribunal and the unchallenged evidence of Ms Dhir.

3. Ms Dhir married her first husband, Amandeep Singh, in 2009. [2]

   [2] T7, folio 107.

4. On 27 April 2010, in Panchkula, the Child of this union was born.[3]

   [3] T7, folio 116.

5. Mr Singh died in a motor vehicle accident. Consequently, the marriage was formally dissolved on 1 August 2012. Mr Singh’s family has no contact with the Child.[4]

   [4] Exhibit 1, A11, page 1.

6. On 29 November 2013, by family arrangement, Ms Dhir married Ashok Prasad in Chandigarh.[5] Mr Prasad is an Australian citizen.

   [5] T7 folio 109.

7. On 5 December 2013, Mr Prasad adopted the Child.[6]

   [6] Ibid, folio 105 and folios 111-115.

8. Mr Prasad sponsored Ms Dhir and the Child for a partner visa.

9. On 4 August 2015, Ms Dhir and the Child first arrived in Australia on a Spouse (provisional) (Subclass UF-309) visa.[7]

   [7] T2, folio 14.

10. Things did not go well. On 12 August 2016, Ms Dhir sought an Intervention Order under the Family Violence Protection Act (Vic) 2008 against Mr Prasad, alleging she was the victim of violent abuse.[8] On 13 September 2016, the application was heard in the Magistrates’ Court in Dandenong, and an Intervention Order was made.[9] Further Intervention Orders were made on 5 September 2017 and 4 December 2018.[10]

    [8] Exhibit 1, A1.

    [9] Ibid, A2.

    [10] Ibid, A3 and A4

11. On 12 September 2016, with the assistance of the InTouch Multicultural Centre Against Family Violence, Ms Dhir applied for permanent residence under reg 100.221(4)(c)(i) or (ii) of the Migration Regulations 1994 (Regulations).[11]

    [11] Ibid, A5, A6, A9 and A10.

12. On 12 November 2017, Ms Dhir’s marriage to Mr Prasad was dissolved.

13. On 4 September 2018, Ms Dhir and the Child were granted a permanent Spouse (BC-100) visa. It was accepted the Child was within the terms of reg 100.221(4)(c)(ii) of the Regulations.

14. There is no dispute, and I accept on 15 September 2018, Ms Dhir departed Australia to visit relatives living in India. She returned to Australia on 14 October 2018.[12] Ms Dhir stated all her relatives, including her extended family, left India and are now in Sydney.[13]

    [12] T7, folio 96.

    [13] Exhibit 1, A11, page 3.

15. On 23 September 2019, Ms Dhir lodged an Application for Australian Citizenship (Application).[14] The Child was included in this Application.[15]

    [14] Ibid, folios 83-100; T9.

    [15] Ibid, folio 86.

16. On 28 January 2022, the Application was refused.[16]

    [16] T2.

17. On 23 February 2022, represented by Legal Aid ACT, Ms Dhir applied for review of the decision to refuse conferral of Australian citizenship on the Child.

    Issues and law

18. The Tribunal’s jurisdiction is conferred by s 52(1)(b) of the Australian Citizenship Act 2007 (Citizenship Act):

    (1)  An application may be made to the Administrative Appeals Tribunal for review of the following decisions:

    (a)  …;

    (aa)  …;

    (b)  a decision under section 24 to refuse to approve a person becoming an Australian citizen;

    (c)  …

    …

    (3)  For the purposes of the Administrative Appeals Tribunal reviewing a decision of a kind referred to in paragraph (1)(b):

    (a)  the Tribunal must not exercise the power under subsection 22A(1A) or 22B(1A); and

    (b)  the Tribunal must not review any exercise of the power or any failure to exercise the power.

19. Relevantly, s 24 is in the following terms:

    (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.

    Note:          The Minister may cancel an approval: see section 25.

    (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).

    …

20. These provisions frame the Tribunal’s task on review. For the purposes of reviewing a refusal decision under s 24(1) and (2) of the Citizenship Act, subject to s 52(3), the Tribunal may exercise all the powers and discretions conferred upon the decision maker, and it is subject to the same limits.

21. The delegate who made the decision to refuse to approve conferral of Australian citizenship on the Child stated:

    Despite your child satisfying the requirements under s 21(5) of the Act, I have decided to use my discretion under subsection 24(2) to refuse to approve your child to become an Australian citizen by conferral because they do not meet the policy requirements for applicants under the age of 16 years, in relation to living with a responsible parent who meets the citizenship requirements.[17]

    [17] T2, folio 14

22. The requirements in s 21(5) are:

    (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.

23. There is no controversy, correctly in my assessment, the Child satisfied these requirements at the time of the delegate’s decision and presently.

24. Departmental policy ‘requirements’ are set out in the Australian Citizenship Policy Statement (Policy) and relevant Citizenship Procedural Instructions (CPI). CPI 4 sets out the policy in respect of Australian Citizenship by Conferral – Person under 18. It states:

    1.    Purpose

    …

    Delegates are required to understand and apply the relevant law as set out in the Act… To the extent the Act allows for discretion, delegates must consider the Department’s approved policy and procedures where relevant and appropriate. This ensure the decision-making is consistent to the extent that it is appropriate and arbitrary outcomes are avoided.

    However, policy and procedures do not have the force of law. When exercising powers or making decisions under legislation, citizenship officers must give policy documents due weight, but must not apply policy inflexibly and may consider the merits of each individual case. In order to make a fair, reasonable and lawful decision, it may be appropriate to depart from the approved policy and procedures, depending on the facts of the particular case…[18]

    [18] T6, folio 70.

    …

    7. Policy considerations for children aged 15 years and under

    In order to uphold and maintain the integrity of the citizenship program, delegates must have due regard to all the circumstances of the family unit, when considering the individual made by or on behalf of a child aged 15 years and under. This also applies where a child’s application is being considered as an individual application because their responsible parent’s application has been refused…

    The intent of these policy settings is the child (and their responsible parent/s) intend to reside, or to continue to reside, in Australia or to maintain a close and continuing association with Australia, if the application was to be approved.

    …

    Applicant 15 years or under are expected to meet one of the following factors. These factors are relevant in making a decision under s 24(2) of the Act…

    …

    Usually resident in Australia and living with a responsible parent who is an Australian citizen and who consents to the application

    …

    Usually resident in Australia and living with a responsible parent, who is a permanent resident and who consents to the application

    This policy only relates to situations where the responsible parent permanent resident is expected to meet the general residence requirement under s 21(2) of the Act and is not applying for Australian citizenship because they would lose the citizenship of another country…

    Usually resident in Australia and living with a responsible parent, who is not an Australian citizen and who consents to the application

    In this situation, the delegate must assess whether the child would suffer significant hardship or disadvantage, if they were not to become an Australian citizen at this time. For example, if the child would not have access to a certain scholarship which is only available to Australian citizens. Refer to CPI 12 – Assessing significant hardship, disadvantage or detriment for the purposes of Australian citizenship.[19]

    [19] Ibid, folios 74-75.

    …

    9.3 Where the above policy guidelines are not met

    Delegates 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. Delegates 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.

    …

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

    Officers are to consider this policy for the purposes 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).[20]

    …

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

    …

    When considering the use of this discretion, a best interests of the child assessment must be undertaken prior to the decision being made….

    …

    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.[21]

    …

    [20] Ibid, folio 77.

    [21] Ibid, folio 79.

25. As can be seen, some latitude is allowed for when applying the policy. This approach is consistent with the principles discussed in Minister for Home Affairs v G,[22] albeit the Court was dealing with Australian Citizenship Instructions which are no longer in effect. The fundamental point remains apposite:

    … the policy contemplates that a person may not meet the policy guidelines but their application may nevertheless be approved…

    … in the case of an applicant who does not meet these guidelines, decision makers must consider the full circumstances of the case and whether they are unusual. And … the “policy must not be applied inflexibly”.[23]

    [22] [2019] FCAFC 79 at [58]-[74].

    [23] Ibid at [73]-[74].

    Consideration

26. Ms Dhir asserts the Child should be granted Australian citizenship. The Child has been in Australia from the age of 5 and has integrated into Australian life, she asserts, and presently identifies with Australia, Indian citizenship notwithstanding. Ms Dhir observes the Policy and CPI 4 require flexibility and all the circumstances of the Child’s family unit to be taken into account. She maintains the Child’s circumstances are unusual and they satisfy the requirements of CPI 4.

27. In Ms Dhir’s submission, conferral of Australian citizenship is in the Child’s best interests and, should citizenship not be approved, the Child is likely to experience significant hardship and disadvantage. At the heart of these submissions is the assertion the Child has experienced and continues to be affected by family violence, including direct physical violence and threats to the Child obtaining (or maintaining) a visa permitting residence in Australia, as well as witnessing and being exposed to verbal, physical and sexual violence and threats against Ms Dhir.

28. Ms Dhir gave evidence, as the Child’s mother, she has witnessed the adverse psychological, behavioural or educational effects these experiences have caused the Child. She asserts the Child has a heightened perception of ‘being othered’ as a result of the violence and the threats made against the Child’s visa status and continued presence in Australia by her former husband. It is Ms Dhir’s submission the adverse effects impede the Child’s confidence and educational performance and this amounts to significant hardship or disadvantage to the Child. She contends the Child will experience significant hardship and disadvantage as a non-citizen unable to access HECS or HELP when attending university.

29. The Child’s best interests, she argues, are for the Child to feel secure, protected from further violence and the effects of violence, and with any lingering uncertainty over the Child’s legal status in Australia squarely addressed by conferral of citizenship.  While there is no therapeutic evidence to support her evidence of adverse psychological, behavioural or educational effects on the Child, Ms Dhir points to academic papers of direct relevance in Exhibit 1 and to her psychological response to the trauma they experienced. Ms Dhir explained, she relies on the Child to assist her with medical and other issues consequent to the family violence and, being mindful of the Child’s perception of otherness and insecurity, she decided not to put the Child through a process of psychological evaluation and assessment which may be upsetting.

30. The Minister submits there is no evidence the Child will experience significant hardship or disadvantage should Australian citizenship not be conferred. The Minister asserts the Policy and CPI 4 are appropriately applicable in the circumstances of this case. Moreover, should they not be applied, the Minister argues the citizenship program might be undermined by inconsistent, even arbitrary, decision making.

31. The case being made for the Child, the Minister argues, is no more than an expression of personal want or, perhaps, personal need which is not sufficient ground to justify departing from the Policy and CPI 4. Furthermore, there is not sufficient evidence, so the argument goes, to establish the Child meets the significant hardship or disadvantage threshold in CPI 4 and CPI 12, and it is not presently established the best interests of the Child align with conferral of Australian citizenship. The proposition the Child may experience hardship should the Child attend a university without access to HECS or HELP support as a non-citizen is, the Minister suggests, highly speculative and unpersuasive.

32. These matters are to be decided under applicable provisions of the Citizenship Act and the Policy, particularly CPI 4. As there is no dispute, correctly, the Child satisfies the thresholds set out in s 21(5) of the Citizenship Act, the statutory question is whether the discretion in s 24(2) to refuse approval the Child becoming an Australian citizen should be exercised. This question is to be answered at the time of the Tribunal’s consideration, on the materials placed before it. In this context, it is appropriate to refer to the Policy which is currently in effect.

33. Under the terms of the Policy and CPI 4, the Child, who is under 15 years old, is expected to meet one of the factors set out in s 7. The Child is residing with a responsible parent, Ms Dhir, who consents to the application. Ms Dhir is a permanent resident, but not an Australian citizen. She is expected to meet the general residence requirement under s 21(2) of the Citizenship Act and she was found to do so by the delegate who assessed her application for conferral of Australian citizenship.[24] If Ms Dhir was to be granted Australian citizenship, she would lose her Indian citizenship as dual Australian and Indian citizenship is not permitted under the Indian Constitution.

    [24] Exhibit 2, page 4.

34. The factor ‘Usually resident in Australia and living with a responsible parent, who is a permanent resident and who consents to the application’ only relates to situations where the responsible parent is not applying for Australian citizenship because they would lose the citizenship of another country. In all likelihood, it is for this reason this factor may not be applicable.

35. The factor ‘Usually resident in Australia and living with a responsible parent, who is not an Australian citizen and who consents to the application’ applies where the child would suffer significant hardship or disadvantage, if they were not to become an Australian citizen at this time. Considering the terms of CPI 12, I am not persuaded the evidence establishes the Child will experience significant hardship or disadvantage if Australian citizenship in not approved at this time.

36. Ms Dhir’s evidence is sufficient to establish the likelihood the Child has experienced family violence, including verbal abuse and threats made in respect of the Child’s visa status. While it can be accepted these experiences in or about 2016 may have lasting effects on the Child, the present evidence is not sufficient to establish the nature or the extend of any such effects. It can be accepted, in general terms, there is an association between exposure to and experience of family violence as a child and subsequent psychological symptoms, including inhibition, anxiety and depression, for example,[25] and experiences of this kind may lead to increased adolescent precocity in transition to adulthood.[26] The Child’s school report from 2018 records the Child is a happy and sociable student who is beginning to display a positive attitude towards his learning, who is growing in confidence but whose progress has been hindered by his regular absences from school.[27] The reports from subsequent years, including 2019 and 2022, suggest the Child has progressed without report of psychological difficulties, and there appears to have been some reduction in the level of absenteeism. The causes of the Child’s absenteeism is not clearly established.

    [25] Exhibit 1, A13.

    [26] Ibid, A14.

    [27] Ibid, A15, 2018 Report, page 2.

1. Ms Dhir’s assertions in respect of hardship the Child may experience as a non-citizen who is unable to access HECS or HELP support at university cannot be accepted. The assessment to be made is at the present time. The Child is a 13 year old school student. The proposition the Child will experience significant hardship or disadvantage in several years time is entirely prospective and highly speculative. Furthermore, the proposition put that as a non-citizen the Child would be precluded from HECS and HELP support is expressly stated not to amount to significant hardship in s 9.3 of CPI 4. There is no bar on the Child applying for conferral of Australian citizenship before commencing tertiary studies should that opportunity arise when the Child has completed High School studies in several years time.

2. I am satisfied the Child does not meet any of the factors set out in s 7 of CPI 4. That being so, it is necessary to consider the discretion conferred by s 24(2) to refuse to approve the Child becoming an Australian citizen at this time. In this context, the best interests of the Child are a primary consideration to which CPI 13 applies.

3. The term ‘best interests of the child’ is to be understood in reference to the United Nations Convention of the Rights of the Child to which Australia is a signatory. Subsection 3.2 of CPI 13 sets out factors which are likely to be of relevance in the context of decisions about Australian citizenship. Factors raised by Ms Dhir in this case, include protecting the Child from violence, the Child’s views and the degree of the Child’s integration into the Australian community.

4. As I comprehend her submissions and her evidence, the grant of Australian citizenship would address the lingering effect of the family violence to which the Child was exposed, including the threat to the Child’s migration status, by removing any doubt in the Child’s mind about such matters, and by removing one plank of the Child’s perception of otherness. While there is no direct evidence from the Child, Ms Dhir gave evidence the Child wants to be approved to become an Australian citizen, and the Child is well integrated into the Australian community, having grown up in Australia from the age of 5. Ms Dhir’s evidence on these points was not challenged and it can be accepted.

5. When undertaking an assessment of the best interests of the Child, it is necessary to weigh other primary and relevant considerations, including competing interests. These include the objectives of the Citizenship Act, as well as community protection and community expectation considerations.

6. It can be accepted the Child’s best interests are served by protection from the effects of family violence. The extent to which conferral of Australian citizenship might address this is moot.  On the one hand, conferral of Australian citizenship does not offer the Child protections which are additional to the Child’s permanent resident status. The Child is able to access education and health benefits, and to travel overseas as a permanent resident. On the other hand, the issue is cast in terms of removal of risk or doubt in the mind of the Child which is said to result from the threats made by the adoptive father. On Ms Dhir’s evidence, the adoptive father threatened to withdraw his sponsorship of Ms Dhir and the Child and thereby to force them to return to India against their wishes. On these facts, conferral of Australian citizenship would provide certainty in respect of the Child’s migration status and to this extent may address lingering perceptions of risk or doubt the Child experiences from the family violence and the threats made in the past. In the event the Child was not approved to become an Australian citizen at this time, the Child’s perceptions of uncertainty about migration status and the possibility of being forcibly returned to India would remain unaddressed.

7. I accept Ms Dhir’s evidence the Child has views about identity which are focussed on Australia and aspires to become an Australian citizen. I also accept Ms Dhir’s evidence the Child experiences a sense of otherness or difference from other students as a non-citizen, and that this sense is sharpened by experiences within the Child’s immediate family unit. The Child has lost two fathers: the biological father is deceased and, consequent to family violence, the Child has no involvement with the adoptive father.

8. It can be accepted the Child has spent formative years in Australia from the age of 5 and is presently integrated into the Australian community. The Child’s school reports establish the Child has friends and a school community. The Child’s immediate and extended family is in Australia, and no family members remain in India. The Child speaks English and assists Ms Dhir, who is not fluent in English and suffers from mental health conditions as a result of the family violence perpetrated against her.[28]

   [28] Exhibit 1, A17.

9. This is a very borderline case with barely sufficient evidence to make a decision one way or the other. Nonetheless, doing the best with the limited materials available, I am satisfied best interests of the Child are to remain in Australia as an Australian citizen.

10. Against this, other considerations must be weighed.

11. The objectives of the Citizenship Act provide for conferral of Australian citizenship upon a child under 18 who meets the eligibility criteria in s 21(5). Conferral of citizenship is to be considered within the broad context expressed in the Preamble. This does not weigh against the Child becoming an Australian citizen.

12. There is no evidence the Child poses any risk to the Australian community such that any community protection concern might be raised. No issue was raised in respect of community expectations which might apply to the Child’s application.

13. On balance, I am satisfied the best interests of the Child are served by conferral of Australian citizenship.

14. Finally, under s 3.4 of CPI 13, this finding of the best interests of the Child is not, alone, determinative of the correct or preferable decision to be made in this case.

15. Considering the provision for flexibility within the terms of the Policy and CPI 4 and the extent to which the Child’s circumstances align with the terms and purposes of the applicable policy provisions to which I have referred, I have concluded the Child’s circumstances are unusual. The circumstances of the Child’s immediate family unit, in respect of the Child’s biological father and adoptive father, including the family violence to which the Child was exposed and the effects of this on Ms Dhir, are outside the usual run of cases. The unusualness of these circumstances may be accommodated with the Policy, without resort to arbitrary decision-making. I am satisfied it is fair, reasonable and lawful to allow the Application to proceed and the discretion to refuse the Application under s 24(2) should not be exercised.

16. The preferable decision in the circumstances is to set aside the decision under review and in substitution to decide the Child’s application for conferral of Australian citizenship should not be refused under s 24(2) of the Citizenship Act. The matter is remitted to the Minister.

    Decision

17. The decision under review is set aside and in substitution the Tribunal decides the Applicant’s Child should not be refused conferral of Australian citizenship under s 24(2) of the Citizenship Act.

I certify that the preceding 53 (fifty-three) paragraphs are a true copy of the reasons for the decision herein of Mr S. Webb, Member.

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Associate

Dated: 16 May 2023

Dates of hearing	27 February 2023
Date final submissions received	31 January 2023
Solicitor for Applicant:	Ms Jaskiran Rekhraj, Legal Aid ACT
Solicitor for Respondent:	Ms Sarah Hardie, HWL Ebsworth Lawyers