Frunz and Minister for Immigration and Multicultural Affairs
[2000] AATA 887
•9 October 2000
DECISION AND REASONS FOR DECISION [2000] AATA 887
ADMINISTRATIVE APPEALS TRIBUNAL )
) No Q00/599
GENERAL ADMINISTRATIVE DIVISION )
Re GENEVIEVE FRUNZ
Applicant
And MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
Respondent
DECISION
Tribunal Deputy President DP Breen, Presidential Member
Date9 October 2000
PlaceBrisbane
Decision The Tribunal affirms the decision under review.
(Sgd) DP BREEN
PRESIDENTIAL MEMBER
CATCHWORDS
IMMIGRATION – grant to child living overseas – discretion to grant – policy behind the legislation.
Australian Citizenship Act 1948 ss 5, 13
REASONS FOR DECISION
9 October 2000 Deputy President DP Breen, Presidential Member
This is an appeal by Genevieve Frunz against a decision of the Department of Immigration and Multicultural Affairs made on 12 May 2000 to refuse to grant citizenship to her daughter, Allegra Frunz.
This matter was heard before me in Brisbane on 19 September 2000. Mr B Mumford of Counsel represented the applicant and Mr P O'Higgins, Solicitor of Messrs Blake Dawson Waldron represented the respondent. No oral evidence was given and only the "T" Documents were tendered as evidence.
Mrs Frunz was born in Australia and was an Australian citizen. She met and married a Swiss citizen, Mr Frunz, and relocated to Switzerland. In 1987, Mrs Frunz obtained Swiss citizenship in order to make business travel easier. At the time she did not realise that this would mean she lost her Australian citizenship. Allegra was born in 1998 and is a Swiss citizen. Late in 1998 Mrs Frunz went to the Australian Embassy to register Allegra's birth and was told that she had lost her citizenship and Allegra could not obtain citizenship by descent. Mrs Frunz regained her Australian citizenship in 1999. She and her husband intend to relocate to Australia at the end of 2002 at which time their business interests in Switzerland will be disposed of and they can take up business opportunities in Australia. In June of this year, Mrs Frunz gave birth to a son, who could be registered as an Australian citizen, as Mrs Frunz had regained her citizenship.
Section 13(9)(a) of the Australian Citizenship Act 1948 states:
"(9)Subject to subsection (11), the Minister may, in the Minister's discretion, upon application in accordance with the approved form, grant a certificate of Australian citizenship to a person:
(a) who has not attained the age of 18 years."
There is nothing contained in subsection (11) which impacts upon this case. The Australian Citizenship Instructions contain the policy guidelines governing the exercise of this discretion. The relevant policy guidelines as set out by the respondent in the reasons for decision are extracted below:
"4.1(b) Applicants overseas
4.1.4As a matter of policy, a certificate of Australian citizenship will not normally be granted to applicants overseas, except for:
spouses of Australian citizens in certain circumstances;
adopted children of Australian citizens in certain circumstances; and
permanent residents who are overseas currently engaged in activities that are beneficial to the interests of Australia and meet the requirements in s 13(1).
Children – Grant in their own right: s 13(9)(a)
4.7.1There is a discretion in s 13(9)(a) to grant a certificate of Australian citizenship, upon applicant, to a child (ie a person who has not attained the age of 18 years).
4.7.2The rest of 4.7 explains the usual policy requirements for the exercise of these powers.
4.7.3As a matter of policy, applications under these powers will usually be approved in the following circumstances:
the applicant would be eligible for inclusion in a responsible parent's certificate under s 13(10) but prefers to acquire their own certificate;
the applicant has been adopted overseas by an Australian citizen who lived overseas for more than 12 months before the adoption, in certain circumstances; or
the applicant is aged 16 years or over and
·is the natural child of a person who has been granted a certificate of Australian citizenship on the basis of being a spouse of an Australian citizen; or
·with certain qualifications, meets the criteria in 2 13(1); or
the applicant is aged under 16 years and – even though his or her parents are not Australian citizens – the applicant would otherwise suffer hardship or disadvantage of the kind outlined in 4.5.18 above.
4.7.4When considering whether to approve a case outside of the above circumstances, as a matter of policy, applications are not usually to be approved unless all of the following are satisfied:
A 'responsible parent' consents to the application.
The child is living with that responsible parent, in the case of a child under 16 years of age.
The child has a responsible parent who is an Australian citizen.
The child is a 'permanent resident' or meets the requirements for migration to or permanent residence in Australia.
4.7.5Decision makers are reminded, however, that they are obliged to consider the full circumstances of the case. For example, it may be appropriate to approve a case if the child has a responsible parent who is an Australian citizen and there are exceptional circumstances, which would make it unreasonable for the applicant to apply for a permanent visa."
It is accepted that Allegra Frunz does not satisfy any of the exceptions under paragraph 4.1.4. It is clear that she also does not satisfy the last three dot points in paragraph 4.7.3. As for the first dot point, in order for her to be placed on a responsible parent's certificate, paragraph 4.6.2 requires her to be a permanent resident of Australia, which she is not. Therefore, the main issue for the Tribunal to decide is whether paragraph 4.7.4 is satisfied and, if it is, whether to exercise the discretion in favour of Allegra Frunz.
A "responsible parent" is defined in Section 5 of the Australian Citizenship Act as:
"in relation to a child, means a person, whether or not a parent of the child, who, under a law in force in a foreign country or a law of the Commonwealth, a State or a Territory, whether by reason of adoption, operation of law, an order of a court or otherwise, has guardianship or custody of the child whether jointly or otherwise."
Mrs Frunz is one of Allegra's responsible parents and she is an Australian citizen. Allegra is currently residing with Mrs Frunz and while she is not currently a permanent resident, there is no evidence on file to suggest that there would be any bar to Allegra being permitted to migrate to and then permanently to reside in Australia. As such, the policy requirements under paragraph 4.7.4 are satisfied and the discretion as to whether to grant a certificate of citizenship becomes open for the Tribunal.
Paragraph 4.7.5 provides a further over-rider on the exercise of the discretion even though all of the requirements of paragraph 4.7.4 are met. It requires the decision-maker to consider all of the circumstances of the case - in particular, whether there are exceptional circumstances which would make it unreasonable to expect the applicant to apply for a permanent visa.
The policy appears to be drafted to reflect a preference not to exercise the discretion in favour of an applicant unless strict criteria are met, but so as to still leave a discretion in exceptional circumstances. Paragraph 4.7.4 operates as an exception to an exception in relation to a policy of refusal. As such, it follows that the discretion which paragraph 4.7.4 opens up should be exercised rarely and in line with circumstances outlined in paragraph 4.7.5.
In this case, Allegra Frunz can travel under her mother's Swiss passport and has in fact done so. The fact that this requires Mrs Frunz to carry both passports, although perhaps a small inconvenience, is certainly not an exceptional circumstance. The applicant's father will need to apply for permanent residence when the family migrates to Australia. Allegra can be included in that application. As such, it is not unreasonable to require her to apply for a permanent visa. The only other antecedent of citizenship of which advantage could be taken by Allegra, given her young age, is diplomatic protection. However, as a Swiss citizen, she would enjoy protection of a similar degree to that which she would be entitled to if she were an Australian citizen.
While Allegra Frunz is only two years old and has not given the Immigration Department any cause to refuse her entry to, and stay in Australia, the grant of Australian citizenship is a privilege. In this case there is no real hardship caused by refusing to grant citizenship until Allegra Frunz has met the residency requirements, at which time it is most likely that citizenship would be granted. As such, the Tribunal elects not to exercise the discretion under subsection 13(9)(a) as enlivened by paragraph 4.7.4 of the Australian Citizenship Instructions.
There is one final issue which the Tribunal has considered. Although each case must be decided on its own facts, the decisions of this Tribunal are binding on the Department and guide future interpretation of both the legislation and the guidelines. In cases where there is only one parent who is an Australian citizen and the child is overseas, there is a risk that that parent may either die or in some other way cease to be a "responsible parent" of the child between the grant of citizenship and the intended return to Australia to take up permanent residence. This would result in children gaining citizenship without ever having permanently resided in Australia, a result which clearly contradicts the intent of the policy guidelines. Although this would be a very rare occurrence, it strengthens the case for refusing the grant of citizenship until the applicant is residing in Australia.
The Tribunal affirms the decision under review.
I certify that the 14 preceding paragraphs are a true copy of the reasons for the decision herein of Deputy President DP Breen, Presidential Member
Signed: Emma Oettinger
AssociateDate/s of Hearing 19.9.00
Date of Decision 9.10.00
Counsel for the Applicant Mr B Mumford
Solicitor for the Respondent Mr P O'Higgins, Messrs Blake Dawson Waldron
1
0
0