DVRF and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Citizenship)

[2021] AATA 220

DVRF and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Citizenship) [2021] AATA 220 (12 February 2021)

Administrative Appeals Tribunal

ADMINISTRATIVE APPEALS TRIBUNAL              )
  )         No: 2020/0335
GENERAL DIVISION  )

Re: DVRF
Applicant

And: Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
Respondent

DIRECTION

TRIBUNAL:  Member M O’Loughlin

DATE OF CORRIGENDUM:            15 February 2021

PLACE:           Adelaide

The Tribunal directs the Registrar, pursuant to subsection 43AA(1) of the Administrative Appeals Tribunal Act 1975, to alter the text of the decision in this application as follows:

1. At paragraph 29, delete “court fees” and replace with “university fees”. 

..................[Sgnd].................................................

M O’Loughlin
(Member)

Division:GENERAL DIVISION

File Number(s):      2020/0335

Re:DVRF

APPLICANT

AndMinister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

RESPONDENT

DECISION

Tribunal:Member M O'Loughlin

Date:12 February 2021      

Place:Adelaide

The Tribunal sets aside the decision under review and substitutes a decision that the applicant shall not be refused Australian citizenship by exercising the discretion in subsection 24(2) of the Australian Citizenship Act 2007.  

.......................[Sgnd]................................................

Member M O'Loughlin

Catchwords

CITIZENSHIP - Application for citizenship refused by the Minister under section 24(2) of the Australian Citizenship Act – Applicant 17 years old - Applicant seeking to attend university under corona-virus arrangements - Whether applicant satisfies requirement under the Australian Citizenship Policy – Whether the applicant will suffer hardship or disadvantage - Whether there is a cogent reason not to apply the Policy – Decision under review set aside and substituted with decision that applicant shall not be refused Australian citizenship

Legislation

Australian Citizenship Act 2007 (Cth)

Cases

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

Secondary Materials

Australian Citizenship Policy, Department of Immigration and Border Protection, 1 June 2016.

REASONS FOR DECISION

Member M O'Loughlin

1. On 31 October 2019 the applicant sought conferral of Australian citizenship.  The conferral of Australian citizenship is regulated by the Australian Citizenship Act 2007 (the Act).  It is not disputed that she meets the eligibility criteria in the Act for conferral of citizenship on a person under 18.

2. However, section 24(2) of the Act vests in the Minister a discretion to refuse to confer citizenship in some circumstances.  On 31 December, a delegate of the Minister for Home Affairs decided to refuse the applicant’s application for conferral of citizenship.

3. This is an application by DVRF seeking review of that decision.

4. The applicant appeared before the Tribunal to give evidence on 19 November 2020 by video link. She was assisted by her father who also gave evidence.

   Evidence

5. The applicant’s evidence in chief was contained in a letter of 24 April 2020[1] and a further letter of 29 June 2020[2], both of which she adopted under oath.

   [1] Exhibit A1.

   [2] Exhibit A2.

6. The applicant is a citizen of Sri Lanka. She was born in 2003. At the time she made her application she was 16 years old. At the time of hearing and the time of preparation of this decision she was 17 years old.

7. The applicant came to Australia from Sri Lanka with her family. The family arrived in Adelaide on 28 June 2015 and were granted permanent residency on 13 October 2017.

8. The applicant started school in Australia in 2015. At that time, she commenced year seven. In 2016, the applicant moved to a public high school.

9. On 14 December 2017 the family went to Sri Lanka, then returned to Australia in July 2019. They had intended to come back to Australia earlier, but their plans were disrupted by family illness and later by an injury to the applicant’s father.

10. The applicant asserts, and it is not a matter of dispute, that she obtained exemptions from school for the time that she was in Sri Lanka and she returned to school when she returned to Australia.

11. The applicant resumed high school in the third term of year 11.  She completed year 11 in 2019 and has subsequently completed year 12. At the time of the hearing the applicant had completed year 12 but did not yet have her results.

12. The applicant is hoping to study medicine or work in a field related to health. She said that she is motivated by her aunt in Sri Lanka who works in the medical field and is an inspiration to her.

13. The applicant said in evidence that she understands that if she were to start university in 2021, she would not be entitled to youth allowance until she turns 18 in September 2021.

14. The applicant gave evidence that she will not be eligible for HECS support if she is not a citizen.  Without citizenship she will only be able to commence university in 2021 as a full fee-paying student. This is not in dispute and the Tribunal accepts this evidence.

15. The applicant believes it will be extremely difficult, if not impossible, for her to attend university if she is not a citizen. The Tribunal accepts that her family are not in a financial position to pay for her to undertake tertiary study on a full fee paying basis.

16. The applicant gave evidence that as a “one off” arrangement in 2020, in view of the effect of the coronavirus pandemic, the University of Adelaide gave students the opportunity to apply for entry to the University on the basis of their year 11 results.  This opportunity has not been granted in other years and is not expected to be granted in the 2021 academic year if the restrictions on attending school are not reintroduced.

17. The applicant said that under this arrangement she was offered enrolment in a course at the University of Adelaide called “Health and Medicine” which she described as an alternative path into medicine.  She conceded under cross examination that this was a secondary option but regarded it as a good backup if her Australian Tertiary Admission Rank (“ATAR”) score is not high enough for entry into medicine.

18. She said that she could not apply for direct entry into medicine without her ATAR as it was not one of the courses offered under the COVID arrangements in 2020.  

19. The applicant said that she is not precluded from applying for entry into medicine in 2021 and will do so if she achieves an adequate ATAR.  Otherwise she will pursue the secondary pathway described above.

20. The Tribunal accepts the applicant’s evidence that in 2021 she will, if financially possible, either study Health and Medicine, in which she has already been offered enrolment, or she will study Medicine if her ATAR is sufficient.

21. The applicant’s evidence is that she believes the undertaking of any tertiary study in Australia will be dependent on her being entitled to HECS, given her family’s financial situation.  The Tribunal further accepts that, to get HECS, she will need to be a citizen of Australia.

22. The applicant gave evidence that she had taken the University Clinical Aptitude Test (“UCAT”).  She explained that this was an online test, taken externally from her school and is part of the process of obtaining enrolment in medicine. She said that the University of Adelaide requires a score of 2,500 and that she believes she scored 2,200. 

23. It was put to the applicant in cross examination that she could not, therefore, get into medicine.  She said that it may not be enough for the University of Adelaide but that it would be enough for some other universities. 

24. The applicant said that she understands that she is not entitled to defer her studies given that she has been admitted under COVID arrangements.

25. The applicant said in relation to her own financial status that she did not work while she was in High School, so she could concentrate on her studies.  She gave evidence that she has since been applying for part time jobs in fast food restaurants and the like. 

26. She does not believe that she is likely to find work that will be sufficiently remunerative to much assist her in meeting university fees.  The Tribunal observes that as a person under the age of 18, her part time work options will generally be low paid.

27. The applicant’s father also gave evidence.  He said he had worked in a factory in Adelaide before the family returned to Sri Lanka in 2017, but that job was not available when the family returned in 2019. He had some trouble finding work and was unable to find regular employment until March 2020 when he took a casual position in a chocolate factory and later in a bakery.

28. He gave evidence that he is now working full-time.

29. He further said that his son is studying at university and the family had been paying for those studies until his son was granted citizenship. He said that the money spent on his son’s education was savings he had from Sri Lanka which have now been exhausted, and that his income is not sufficient both to pay the family’s living costs and to meet the applicant’s course fees. He estimates that the university fees will be about $4,000 to $5000 a semester.

30. The applicant’s father gave evidence that he earns about $3000 per month and the family is eligible for a Centrelink payment of about $400 per fortnight, so the family income is about $3600 per month.

31. The applicant’s mother has not been employed although she has apparently done some study in the hope of working in the hospitality industry.

32. The applicant’s father said that he had been helping his daughter prepare resumes for part time work in cafés and fast food restaurants next year, but he believes that if she is studying full time she will only be able to work a few hours per week.

33. He also said that he does not believe she will be eligible for Youth Allowance until July 2021, based on his son’s eligibility.

34. Under cross examination, the applicant’s father agreed that it might be possible for the family to fund a semester’s study if the applicant’s mother finds employment.

    Statutory Framework

35. The respondent has provided a Statement of Facts, Issues and Contentions (“SoFICs”) which contains a summary of legislation relevant to this matter. The Tribunal is content to rely on this summary.

36. Applications for citizenship by conferral are governed by the Australian Citizenship Act 2007 (“the Act”), in particular at sections 20 to 25.

37. Section 21(5) of the Act provides:

    (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.

38. It is not controversial that the applicant was aged under 18 at the time she made the application for citizenship and therefore satisfies section 21(5)(a).

39. It is not controversial that the applicant was a permanent resident both at the time she made the application and at the time of the Minister’s decision on the application, and as such the applicant satisfies section 21(5)(b).

40. The applicant is therefore eligible to become an Australian citizen under section 21(5).

41. Despite this, the Minister may refuse to approve the applicant becoming an Australian citizen under section 24(2). That provision provides:

    “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).”

42. It is the Minister’s decision to exercise this discretion that is the subject of this review.

43. The respondent submits, and the Tribunal accepts, that in considering whether or not to exercise the discretion in section 24(2) the Tribunal should consider applying the Australian Citizenship Policy (“Policy”); a government Policy which guides the interpretation of, and the exercise of powers under, the Act.  

    Application of the Citizenship Policy

44. The respondent submits that the Tribunal ought to follow the Policy unless there are cogent reasons not to do so and cites in support of that proposition the familiar authority of Re Drake and Minister for Immigration and Ethnic Affairs (No. 2) [3] (“Drake”).

    [3] (1979) 2 ALD 634.

45. The Tribunal notes that Drake might also be cited as support for the proposition that it would be a cogent reason not to apply the Policy if the application of the Policy would work an injustice.[4]

    [4] Re Drake and Minister for Immigration and Ethnic Affairs (No. 2) (1979) 2 ALD 634, page 645.

46. The respondent directs the Tribunal to that part of the Policy relating to applicants aged 16 or 17.[5] The Policy relevantly requires that such an applicant would not usually be approved under section 24 if they do not satisfy the residence requirement; unless they would suffer significant hardship or disadvantage if they had to meet this requirement.

    [5] Exhibit R1, page 72.

47. The Tribunal accepts the respondent’s submission that the residence requirement referred to in the Policy is the general residence requirement set out in section 22(1) of the Act.

48. That requirement specifies that the applicant ought to have been present in Australia for the period of 4 years immediately before the day she made the application.

49. The Tribunal accepts that the applicant does not satisfy that part of the general residence requirement because she was in Sri Lanka from December 2017 until July 2019. That is a period of just over 18 months, which falls in the 4 years immediately before the day the applicant made the application on 31 October 2019.

50. The applicant does not appear to fall within any of the exceptions that are specified. The Policy requires that the applicant satisfy the residence requirement “unless they would suffer significant hardship or disadvantage if they had to meet this requirement”.[6]

    [6] Ibid, p.72.

51. The respondent submits that the applicant’s complaint that she will not be eligible for HECS-HELP assistance to pursue tertiary study is insufficient to qualify as a relevant hardship or disadvantage.

52. The respondent refers the Tribunal to that part of the Policy appearing at pages 56 and 57 of Exhibit R1 which directs decision-makers in making an assessment of whether a person would suffer significant hardship or disadvantage.

53. The Tribunal agrees that the Policy states that a decision maker should distinguish between personal needs and personal wants and that personal wants will not generally constitute hardship or disadvantage.

54. The respondent points out that eligibility for HECS-HELP is specified in the Policy as a personal want rather than a personal need.

55. The Tribunal observes that the Policy goes on to say that although Australian citizenship is not a requirement to study in Australia, eligibility for certain support or scholarships may be restricted to Australian citizens. The Policy specifically contemplates that being denied a scholarship due to lack of Australian citizenship could be a relevant hardship or disadvantage.

56. The applicant does not suggest that she will be unable to enrol at university and indeed has been successful in securing her enrolment for the 2021 academic year.

57. The applicant does say that the family’s financial circumstances are such that she has no real opportunity of availing herself of the enrolment if she cannot study on a HECS liable basis.

58. Her father’s evidence supports the applicant’s evidence in this regard. 

59. The Tribunal asked the respondent how the opportunity to study on a HECS liable basis differs from the opportunity to take up a scholarship.

60. The submission in response was that a wish to have access to HECS arrangements is speculative as to whether such access will actually be used, and that because that is speculative, it does not demonstrate hardship or disadvantage.

61. In this matter the Tribunal finds that the applicant has secured enrolment in University for the 2021 academic year, under the coronavirus arrangements described above; and her enrolment is not a matter of speculation.

62. The Tribunal accepts the applicant’s evidence that it is not open to her to postpone the enrolment she has been granted under the coronavirus arrangements.

63. Given that these arrangements are specific to the applicant’s enrolment in 2021, the applicant is subject to a disadvantage of a type which would not otherwise have occurred in other years if she is not able to study in the 2021 academic year.

64. The Tribunal finds that the applicant’s personal and family financial circumstances are such that she will probably not be able to take up the opportunity to study in 2021 under the specified arrangements unless she has HECS-HELP assistance.

65. She will not be entitled to that assistance unless citizenship is conferred upon her.

66. The Tribunal finds that, despite the reference to “HECS-HELP” as a “want” rather than a “need” for the purposes of the Policy, the applicant’s circumstances are unusual.

67. She is not entitled to defer her enrolment until she is 18.  If she does not take it up now, she may lose the opportunity to take it up at all.  The Tribunal notes that this was not the case at the time the delegate refused the application.   The Tribunal views this as a significant change since the delegate’s decision.

68. The Tribunal finds that in losing her entitlement to take up her offer at University or else obliging her family to make the financial sacrifice needed to pay her university fees, the applicant would suffer a hardship or disadvantage for the purposes of the Policy. This brings the applicant within the exception to the residence requirement.

69. In its SoFICs, the respondent has suggested that in addition to not meeting the residence requirement in the Policy (the first relevant requirement), the applicant does not meet the fourth requirement (which relates to demonstrating an understanding of the privileges and responsibilities of citizenship); nor does she satisfy the fifth requirement (being that she is likely to reside, or continue to reside, or maintain a close and continuing association with Australia).

70. These matters were not canvassed in the hearing.

71. The Tribunal is satisfied that the applicant intends to undertake tertiary study in Australia for the next few years if she is able to.  It is likely that the applicant can satisfy the requirement that she is likely to reside in Australia.

72. However, there is no evidence about the applicant’s understanding of the privileges and responsibilities of citizenship.

73. The Tribunal is not, therefore, in a position to find that the applicant satisfies the fourth consideration prescribed in the Policy.

    Injustice

74. Drake at page 645 said that it would be a cogent reason not to apply the Policy if to do so would be to work an injustice in a particular case.

75. The decision describes an injustice as “a disproportion between the detriment suffered by those affected” by a decision, and “the benefit which might reasonably be expected to result to the community at large or to particular individuals in the community…” [7]

    [7] Re Drake and Minister for Immigration and Ethnic Affairs (No. 2) (1979) 2 ALD 634, page 645.

76. It therefore falls to the Tribunal to determine whether the application of the Policy in this matter will “work an injustice”; and therefore, whether the Policy should be applied to this application.

77. This matter is restricted to unusual facts. 

78. If the applicant is not granted citizenship by reason of this application she will, as a practical matter, be obliged to wait until September when she turns 18 to make another application. The Tribunal is satisfied that she will not be able to start studying on the basis of the enrolment she has been granted under the special coronavirus arrangements, or if she is able to study it will be at the cost of a substantial financial strain on her and her family.

79. The Tribunal is satisfied that the applicant will suffer detriment if the Policy is applied and she is refused citizenship, namely that she will be unable to take up the offer of enrolment for 2021 or will do so under substantial financial pressure on her and on her family. 

1. The Tribunal is satisfied that the applicant (or the applicant and her family) will suffer detriment if citizenship is not conferred on her and she is not eligible for HECS support.

2. It is not apparent that there will be any benefit to the community at large or to particular individuals in the community if citizenship is not conferred.

3. The Tribunal finds that application of the Policy in this matter will therefore result in “a disproportion between the detriment suffered by those affected …and the benefit which might reasonably be expected to result to the community at large or to particular individuals in the community…” [8]

   [8] Re Drake and Minister for Immigration and Ethnic Affairs (No. 2) (1979) 2 ALD 634, page 645.

4. The Tribunal finds that to the extent that the application of the Policy will prevent the applicant from taking up her enrolment in 2021, it will work an injustice of the type contemplated in Drake.

5. The Tribunal therefore finds that there is a cogent reason not to apply the Policy.

6. The Tribunal is therefore not satisfied that there is an appropriate basis on which to exercise the discretion in section 24(2).

   
   Decision

7. The Tribunal sets aside the decision under review and substitutes a decision that the applicant shall not be refused Australian citizenship by exercising the discretion in subsection 24(2) of the Australian Citizenship Act 2007

87.     I certify that the preceding 86 (eighty six) paragraphs are a true copy of the reasons for the decision herein of Member M O’Loughlin.

.........[Sgnd].........................
Administrative Assistant Legal

Dated: 12 February 2021

Date of hearing: 9 October 2020 and 19 November 2020
Advocate for the Applicant:	Father, Mr F
Advocate for the Respondent:	Mr C Retallick, Australian Government Solicitor