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

[2021] AATA 1363

Fu and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Citizenship) [2021] AATA 1363 (18 May 2021)

Division:GENERAL DIVISION

File Number(s):      2020/4183

Re:Tracy Kangqi Fu

APPLICANT

AndMinister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

RESPONDENT

DECISION

Tribunal:Senior Member A Poljak

Date:18 May 2021

Place:Sydney

The decision under review is set aside and in substitution I find that the discretion under subsection 24(2) of the Australian Citizenship Act 2007 (Cth) to refuse the applicant becoming an Australian citizen should not be exercised. Since the applicant satisfies subsection 21(5) of the Act, she should be granted Australian citizenship.

..................................[sgd]......................................

Senior Member A Poljak

CATCHWORDS

CITIZENSHIP – application for citizenship by conferral – applicant aged under 18 – discretion to refuse application – did not live with responsible parent who was an Australian citizen at the time of application – Citizenship Policy – Citizenship Procedural Instructions – best interests of the child – ties to Australia – views of the child – decision under review set aside and substituted

LEGISLATION

Australian Citizenship Act 2007 (Cth) ss 21, 24

CASES

Re Drake v Minister for Immigration and Ethnic Affairs (No 2) [1979] AATA 179; (1979) 2 ALD 634

SECONDARY MATERIALS

Australian Citizenship [Policy Statement]

Citizenship Procedural Instruction 4 – Australian Citizenship by Conferral – Person under 18

Citizenship Procedural Instruction 13 – Best Interests of the Child Assessments

United Nations Convention on the Rights of the Child

REASONS FOR DECISION

Senior Member A Poljak

18 May 2021

1. The applicant is a citizen of Canada and currently resides in Hong Kong with her parents. The applicant resided in Australia as a permanent resident from 6 July 2013 to 24 August 2019. On 2 April 2018, the applicant was granted a Resident Return (Subclass 155) visa. Her current visa allows her to remain in Australia indefinitely.

2. On 20 September 2019, the applicant applied for Australian citizenship by conferral (Citizenship application). At the time of application, she was under 16 years of age. Her father is a citizen of China and listed as the applicant’s ‘responsible parent’ and her mother is a citizen of Canada.

3. Despite the applicant satisfying the requirements under subsection 21(5) of the Australian Citizenship Act 2007 (Cth) (the Act), on 25 June 2020, a delegate of the respondent refused the Citizenship application. In doing so, the delegate exercised the discretion under subsection 24(2) of the Act to refuse the applicant becoming an Australian citizen because she did not live with a responsible parent who was an Australian citizen at the time of application. The delegate was also not satisfied that the applicant would suffer significant hardship or disadvantage if not conferred Australian citizenship. This is the decision under review in these proceedings.

   RELEVANT LEGISLATIVE PROVISIONS

4. The part of section 21 of the Act which is relevant for the present purposes is subsection 21(5), which applies to persons aged under 18 years. It provides:

   Person aged under 18

   (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.

5. Subsection 24(2) provides that despite an applicant being eligible to obtain Australian citizenship under subsection 21(5), the Minister may refuse to approve the person becoming an Australian citizen. This is a discretionary power.

   6.The revised Australian Citizenship [Policy Statement] (the Policy) and the Citizenship Procedural Instruction 4 – Australian Citizenship by Conferral – Person under 18 (CPI 4) came into force on 27 November 2020. The CPI 4 is in similar terms to those contained in the Citizenship Policy regarding applicants under 16 years at date of application. It states:

   The following factors are relevant in making a decision under subsection 24(2) of the Act. Decision-makers are to consider whether the child is:

   ·usually resident in Australia and living with a responsible parent who is an Australian citizen and who consents to the application; or

   ·usually resident in Australia and living with a responsible parent who is a permanent resident and who consents to the application, and that responsible parent would meet the residence requirement but has decided not to apply for Australian citizenship because they would lose the citizenship of another country; or

   ·usually resident in Australia and living with a responsible parent who is not an Australian citizen and who consents to the application. If 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), then this may be a relevant consideration for decision-makers; or

   ·usually resident overseas and living with a responsible parent who is an Australian citizen and who consents to the application. In this situation, it may be relevant for decision-makers to consider whether the grant of the Australian citizenship could disadvantage the child or put them in significant hardship (for example, whether by acquiring the Australian citizenship, the child would lose another citizenship which can affect their rights and access to entitlements, such as claiming an inheritance); or

   ·an unaccompanied humanitarian minor who falls under the Minister’s guardianship and a responsible parent or care has consented to the application.

6. Part one of article 3 of the United Nations Convention on the Rights of the Child (UNCRC), of which Australia is a signatory, states:

   In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration.

7. The Citizenship Procedural Instruction 13 – Best Interests of the Child Assessments (CPI 13) provides that the best interests of a child assessment shall be undertaken in the circumstances where the Minister (or delegate) refuses a child’s citizenship application using the discretionary power under subsection 24(2) of the Act. The phrase ‘best interests of the child’ is not defined, but is informed, in part, by the principles in the UNCRC. The factors most relevant to these proceedings are that a child has the right to preserve his or her identity, including nationality, name and family relations as recognised by law; freedom of religion; that the views of the child should be given weight in accordance with the child’s age, maturity and level of understanding; and the degree of the child’s integration into the Australian community.

8. The role of the Policy and the CPIs is to offer guidance on the interpretation of, and exercise of powers under the Act. I am not bound to strictly apply the Policy and CPIs, however, it is government policy and should be considered if it is consistent with the Act and unless there are cogent reasons not to do so: Re Drake v Minister for Immigration and Ethnic Affairs (No 2) [1979] AATA 179; (1979) 2 ALD 634.

   EVIDENCE AND CONSIDERATION

9. The applicant, along with her parents obtained permanent residency status in Australia in 2013. The applicant and her family resided in Australia since that time. Her father states that he never applied for Australian Citizenship because China did not recognise Dual citizenships, and this would cause him problems as he needed to visit his elderly parents in China.

10. Since her arrival in Australia in 2013, the applicant has attended both primary school and secondary school. She has spent most of her formative years in Australia.

11. The applicant’s younger brother was born in Australia in 2015 and as such is an Australian citizen by birth.

12. At the time that the Minister considered the applicant’s application for citizenship, Departmental records showed that the applicant and her family have been overseas in Hong Kong since 24 August 2019. This was only ever intended to be temporary. The applicant’s father had accepted an invitation to run the aviation programs in the Hong Kong Polytechnic University. They intended to return to Australia after four months and this was stipulated in the applicant’s application for citizenship. The applicant was intending to return to Australia with her brother and mother for the new school term. Unfortunately for the applicant, COVID-19 restrictions and subsequent career/financial challenges have prevented the applicant and her family from returning to Australia. I do not accept the respondent’s contention that the applicant is not a usual resident of Australia. It is only due to exceptional and unforeseen circumstances that the applicant’s stay in Hong Kong has been extended. At the time of applying for Australian citizenship, the applicant was usually residing in Australia and had done so since 2013.

13. In her written statement, the applicant said:

    “Growing up in primary school we have always been taught to regard ourselves as Australians. We were taught of Australia’s history of colonisation, the recognition of Aboriginals, and were also taught to sing the Australian National Anthem off by heart. In year 4, there was even a performance in which I had to sing ‘I am Australian’ during an assembly. I may not be Australian-born, but I was Australian-raised. And being Australian-raised, I always held onto the belief in which I was a true Australian. I have learnt Australian history, experienced Australian culture, and have lived as an Australian for 5-6 years. Australia is where I grew up and where I was raised; it is the base of my childhood.

    Even if I was Australian-raised, it often comes into my mind in terms of identity I never truly belonged. My friends were all “true Australians”, and I was just Australian-raised. I share and teach my younger brother everything about Australia. However, sometimes I felt that he is more Australian than me. Although I identified myself as an Australian, I always felt like that is something missing, and I didn’t belong. There was always a sense of loneliness to be the odd one out, and I have felt left out when the topic of ‘Australian identity’ popped up…”

14. The applicant gave evidence orally at hearing. My impression of her is that she is a mature, intelligent, and articulate young lady who fully understands the nature of the Citizenship application and the responsibilities and privileges of Australian citizenship. The applicant expressed how she considered herself an Australian and has no memory of Canada. Most of her friends live in Australia as she spent most of her formative years attending school in Sydney. Her intention is to continue her education in Sydney, Australia and attend University. Although being of Chinese descent on her father’s side, the applicant does not speak Cantonese, the main language spoken in Hong Kong, and does not speak Mandarin fluently. As such, the applicant attends an international school in Hong Kong until she can return to Australia.

15. Most poignant, the applicant described how she now feels confused about her identity and does not know what to say when asked about her nationally. She said she feels embarrassed about not being an Australian citizen and has been bullied about it in the past. The applicant reiterated that she has always believed she was Australian as she has no connection to Hong Kong or Canada. She intends to return to Australia with her mother and brother as soon as possible to continue her secondary education in Sydney, Australia.

16. I do not accept the respondent’s contentions that the applicant’s claims merely amount to personal wants and personal needs. The applicant identifies as an Australian and has fully integrated into the Australian community from a young age. She has a right to preserve her identity. As already stated, the applicant has sufficient maturity and understanding of the significance of having Australian citizenship and I am satisfied that it is in her best interests that she be granted Australian citizenship.

    DECISION

17. Having regard to the circumstances of this case, I am satisfied that it is in the best interests of the child that the applicant be granted Australian citizenship.

18. The decision under review is set aside and in substitution I find that the discretion under subsection 24(2) of the Act to refuse the applicant becoming an Australian citizen should not be exercised. Since the applicant satisfies subsection 21(5) of the Act, she should be granted Australian citizenship.

I certify that the preceding 19 (nineteen) paragraphs are a true copy of the reasons for the decision herein of Senior Member A Poljak

..............................[sgd]..........................................

Associate

Dated: 18 May 2021

Date of hearing:	23 November 2020
Solicitors for the Applicant:	Mr T Smith, Australian Capital Migration Pty Ltd
Solicitors for the Respondent:	Mr M Palfrey, HWL Ebsworth Lawyers