EJILOGO-WOODWARD and MINISTER FOR IMMIGRATION AND CITIZENSHIP

[2010] AATA 771

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2010] AATA 771

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No 2009/6030

GENERAL ADMINISTRATIVE DIVISION		)
Re		ENE ELLEN TIFFANY EJILOGO-WOODWARD

Applicant

And MINISTER FOR IMMIGRATION AND CITIZENSHIP

Respondent

DECISION

Tribunal Mr A Sweidan, Senior Member

Date8 October 2010

PlacePerth

Decision The decision under review is affirmed.

..........[sgd A Sweidan]........

Senior Member

CATCHWORDS

Australian citizenship – applicant between 16 and 18 years of age not meeting residence requirements – whether applicant suffers significant hardship or disadvantage on grounds relating to employment, travel or academic or sporting opportunities such that discretion should be exercised – decision under review affirmed.

LEGISLATION  

Australian Citizenship Act 2007 and Australian Citizenship Instructions.

CASES

Skoljarev v Australian Fisheries Management Authority [1995] 133 ALR 690 at [695] and [696]
Vukaj v Minister for Immigration and Multicultural Affairs [2006] AATA 1075)
Re Dainty and Minister for Immigration and Ethnic Affairs (1987) 6 AAR 259
Youm v Minister for Immigration and Citizenship [2010] AATA 158
Miller v Minister for Immigration and Citizenship  [2010] AATA 345
Kadir v Minister for Immigration and Citizenship [2010] AATA 438

DECISION AND REASONS FOR DECISION

11 October 2010 Mr A Sweidan, Senior Member    

Background and relevant facts

1.      This is an application to the Tribunal made by Ene Ellen Tiffany Ejilogo-Woodward (the applicant) for a review of a decision of a delegate of the respondent to refuse to grant the applicant's application for Australian citizenship.

2.      The applicant was born in Nigeria on 2 October 1992. She is a citizen of Nigeria and also the UK which is where she resides with her family.

3.      Her adoptive father, Dean Woodward, is an Australian citizen who last departed Australia in January 2010 and resides in the UK.

4.      On 23 July 2009 the applicant was granted an Australian AH-102 permanent adoption visa. She has entered Australia twice for short periods on holidays.

Delegate's decision

5.      The delegate noted that at the time the application was made the applicant was under the age of 18 but over the age of 16. The delegate referred to policy which provided that children between the ages of 16 and 18 who apply for citizenship are required to hold an Australian permanent residence visa and satisfy the residence requirement.

6.      The delegate noted that in order to meet the residency requirements a person must have been present in Australia for a period of four years including a period of 12 months as a permanent resident immediately prior to making the application. It is common ground the applicant could not meet the residence requirement.

7.      The delegate noted that discretion could be applied if the applicant did not meet the residence requirement and significant hardship or disadvantage would result. After referring to the policy guidelines the delegate noted that the applicant had provided no evidence that she would suffer significant hardship or disadvantage on grounds relating to employment, travel or academic or sporting opportunities should her application be refused.

8.      Finally, the delegate found that a consideration of the best interest of the child was not applicable as the applicant was not living in Australia at the time of the decision.

Relevant Legislation and Policy

9.      Chapter 5 of the Australian Citizenship Instructions ("the instructions") provides policy guidance relating to citizenship by conferral. The instructions provide 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.

10.     The instructions provide that applicants between the ages of 16 and 18 would ordinarily be approved if they:

(a)     hold a permanent visa;

(b)satisfy the residence requirements; or

(c)the applicant need not meet the residence requirements if this would cause significant hardship or disadvantage.

11.     The Instructions provide that in order to demonstrate significant hardship or disadvantage an applicant would normally required to demonstrate some or all of the following circumstances:

(a)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;

(b)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; and/or

(c)academic (e.g. research, academic scholarship) or other (sporting etc) potential is being limited or restricted, because the opportunities to reach that potential are available only to an Australian citizen, to the extent that it causes significant hardship.

12.The Instructions also provide that:

“In the case of an applicant who does not meet the policy requirements . . . 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 exceptional nature of those circumstances. The circumstances would need to be very unusual to warrant approval of an application outside policy.”

Evidence

13.     As noted above it is common ground that the applicant holds a permanent visa and does not meet the residence requirements.

14.     The applicant has filed a witness statement and statements from her parents in support of her application. The applicant and her adoptive father both gave oral evidence to the Tribunal.  The applicant's claim of significant hardship or disadvantage is based on a concern and struggle over her identity and sense of belonging in circumstances where her adoptive father's two biological children were granted Australian citizenship but she was not.

15.     No claims are made in respect of the circumstances identified in the policy. That is, the applicant does not contend that she will suffer an inability to gain employment, difficulty in international travel or restrictions in academic or sporting opportunities. As noted earlier the applicant and all of her immediate family, reside in the United Kingdom.

Tribunal’s Findings

16.     The Tribunal notes that while the decision of the delegate is clearly reliant on policy considerations, there is no compelling reason to depart from policy in this matter. Although policy is not binding on the Tribunal, there is good reason why policy should be applied in the interest of consistency of decision-making (see Skoljarev v Australian Fisheries Management Authority [1995] 133 ALR 690 at [695] and [696] per Davies J. The case law makes it clear that the Tribunal must take policy into account and give appropriate weight to that policy (Vukaj v Minister for Immigration and Multicultural Affairs [2006] AATA 1075). In Re Dainty and Minister for Immigration and Ethnic Affairs (1987) 6 AAR 259 Davies J stated at [266]:

“I accept that, in the exercise of discretions under the Australian Citizenship Act the Tribunal ought generally to apply guidelines or policies which have been established by the Minister of State for Immigration and Ethnic Affairs. Such policies can only be adopted by the Minister. He has the experience and advice and the power to formulate such policies and he is able to take responsibility in Parliament should the policies be found wanting.

But to say that, is not to say that the Tribunal ought to treat policy as more than policy. Policy is not a legislative prescription and, though in many cases it will be appropriate to apply policy in all or almost every case, there are circumstances where it is not appropriate to decide a matter merely by reference to a policy which has been laid down.”

17.     In Youm v Minister for Immigration and Citizenship [2010] AATA 158 the Tribunal dismissed a similar application where:

“[N]o cogent reasons have been advanced which would warrant a departure from the policy enshrined in the Instructions that where a person is not a permanent resident and/or does not meet the statutory residency requirement, an application for citizenship can only be approved where the circumstances of the case are found to be exceptional.”.

18.     In Miller v Minister for Immigration and Citizenship [2010] AATA 345, the Tribunal said:

“The guidelines provide an 'exemption' from meeting the residence requirement to militate against "significant hardship or disadvantage". They also contemplate approval, notwithstanding an applicant does not meet all policy requirements, where "the unusual nature" of the circumstances of a case warrant approval.”

19.     In Kadir v Minister for Immigration and Citizenship [2010] AATA 438 the Tribunal distinguished between a "personal want" and a "personal need". The applicant's wish to be an Australian citizen like her father and her half siblings is understandable and the Tribunal sympathises with her situation. However, the applicant's claims are, in the view of the Tribunal, clearly reflective of personal wants rather than personal needs. The Tribunal is of the opinion that the applicant's situation cannot be categorised as hardship in the sense that she will not suffer any tangible detriment. In any event, it is clearly far from the significant hardship anticipated by the policy.

20.     In the Tribunal’s view there is nothing about the applicant's circumstances which constitutes significant hardship or disadvantage under the policy guidelines referred to above.

DECISION

21.     The decision under review is affirmed.

I certify that the 21 preceding paragraphs are a true copy of the reasons for the decision herein of Mr A Sweidan, Senior Member

Signed:         ...............[sgd D Brodie]........................

Associate

Date of Hearing  22 September 2010
Date of Decision  8 October 2010
Applicant’s Representative      Mr Dean Woodward 
Respondent’s Representative  Mr Arran Gerrard  
Solicitor for the Respondent     Australian Government Solicitor