GZQZ and Minister for Immigration and Border Protection (Citizenship)
[2017] AATA 1052
•5 July 2017
GZQZ and Minister for Immigration and Border Protection (Citizenship) [2017] AATA 1052 (5 July 2017)
Division:GENERAL DIVISION
File Number: 2015/4227
Re:GZQZ
APPLICANT
AndMinister for Immigration and Border Protection
RESPONDENT
DECISION
Tribunal:Regina Perton, Member
Date:5 July 2017
Place:Melbourne
The Tribunal affirms the decision under review.
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Regina Perton, Member
CITIZENSHIP – citizenship by conferral – applicant aged under 16 when application made – whether discretion to refuse citizenship should be exercised – application of Australian Citizenship Instructions – permanent resident – whether significant hardship or disadvantage – best interests of the child – whether unusual circumstances – decision affirmed
LEGISLATION
Australian Citizenship Act 2007 ss 21(5), 24(2)CASES
Pak and Department of Immigration and Citizenship [2010] AATA 157
Re Drake v Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634)SECONDARY MATERIALS
Australian Citizenship Instructions, Chapter 5
Convention on the Rights of the ChildREASONS FOR DECISION
Regina Perton
5 July 2017
GZQZ is a citizen of Albania who was born in Australia in May 2009. On 18 January 2013 he was granted a protection visa and became a permanent resident of Australia. On 10 February 2015 his mother, on his behalf, applied for Australian citizenship by conferral.
On 16 July 2015 a delegate of the Minister for Immigration and Border Protection (the Minister) refused the application. The delegate conceded that GZQZ was eligible to become an Australian citizen under s 21(5) of the Australian Citizenship Act 2007 (the Act) but decided to exercise the discretion available under s 24(2) of the Act to refuse to approve the application on the basis that GZQZ did not satisfy the policy guidelines set out in the Australian Citizenship Instructions (ACIs).
On 18 August 2015 GZQZ applied to the Tribunal for review of the decision.
ISSUE
The issue before the Tribunal is whether the delegate of the Minister should have refused to approve GZQZ becoming as Australian citizen pursuant to the discretion in section 24(2) of the Act.
In determining this, the Tribunal must consider:
·Is it in the best interests of GZQZ that he be granted Australian citizenship?
·Would GZQZ otherwise suffer significant hardship and disadvantage if his application for Australian citizenship is refused?; and
·Do the full circumstances of GZQZ’s case (including his best interests) nevertheless warrant approval of his application for Australian citizenship because of the unusual nature of those circumstances?
LEGISLATION AND POLICY
Section 21 of the Act states:
Application and eligibility for citizenship
…
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.
Section 24 of the Act states:
Minister’s decision
…
(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).
The Australian Citizenship Instructions
The ACIs provide policy guidance to decision-makers in relation to the interpretation of, and the exercise of powers under, the Act and regulations made under the Act, including the exercise of the discretion under s 24(2) of the Act.
Section 5.12.1 of the ACIs provides that the discretion in s 24(2) of the Act to refuse to approve an applicant becoming an Australian citizen despite being eligible under s 21(5) of the Act would usually be exercised where GZQZ does not meet the policy guidelines.
In making a decision whether to refuse or approve an application, the primary considerations that need to be taken into account are the legislative requirements, the best interests of the child (section 5.12.2) and the policy guidelines.
Section 5.12.5 of the ACIs applies to children aged under 16 and states that children under 16 applying individually in their own right would usually not be approved under s 24(2) of the Act unless they are permanent residents at the time of application and decision and meet the following policy guidelines:
·are under 16 when applying and living with a responsible parent who is an Australian citizen and who consents to the application; or
·are usually resident in Australia with a permanent responsible parent 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
·are under 16 when applying, living with a responsible parent who is not an Australian citizen and consents to the application, and the child would otherwise suffer significant hardship or disadvantage; or
·are an unaccompanied humanitarian minor who falls under the Minister’s guardianship and a delegated guardian has consented to the application; or
·are an unaccompanied humanitarian minor who does not fall under the Minister’s guardianship and their responsible carer has consented to the application.
The section also provides that, where an applicant does not meet the policy guidelines, decision-makers must consider the full circumstances of the case, including the best interests of the child, to determine whether the application nevertheless warrants approval because of the unusual nature of those circumstances.
Section 5.17.2 of the ACIs provides guidance in determining whether there is significant hardship or disadvantage. Reference is made to the definitions in the Macquarie Dictionary Fifth Edition:
significantimportant; of consequence
hardship a condition that bears hard upon one, severe toil, trial, oppression, or need
disadvantage absence or deprivation of advantage; any unfavourable circumstance or condition
An applicant would need to demonstrate that not having citizenship is the only or major cause for the significant hardship or disadvantage. People would normally be required to demonstrate some or all of the following circumstances:
·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;
·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 or cannot obtain an alternative travel document;
·academic (for example, research, academic scholarship) or other (sporting etc) potential is being limited or restricted, because the opportunities to reach that potential is available only to an Australian citizen, to the extent that it causes significant hardship.
The ACIs provide that decision-makers should be aware of the difference between personal needs and personal wants. Personal needs relate to situations which would give rise to significant hardship or disadvantage if a person could not meet that need, whereas personal wants are aspirations and generally do not constitute hardship (for example the right to vote, election to Parliament or representing Australia internationally).
Section 18.3 of the ACIs What are the best interests of the child states:
The meaning of ‘best interests of the child’ is not defined, but is informed, in part, by the principles in the CROC [Convention on the Rights of the Child]. The factors that are most likely to be relevant to citizenship decisions are:
·children should be protected from all forms of physical or mental violence, injury or abuse, neglect or negligent treatment, maltreatment or exploitation, including sexual abuse
·families should be able to stay together, as far as possible
·the rights and duties of parents and other relevant family members should be respected and it should be recognised that both parents have common responsibilities for the upbringing and development of the child
·the child has the right to preserve his or her identity, including nationality, name and family relations as recognised by law
·prevention of the illicit transfer and non-return of children abroad
·freedom of religion
·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.
SHOULD THE DISCRETION TO REFUSE TO APPROVE THE APPLICATION BE EXERCISED?
In a written statement dated 2 December 2015, GZQZ’s mother said that she and her partner (the father) are Albanian citizens and have two children who were born in Australia: GZQZ and another son who was born in December 2011. She stated that she and the father first arrived in Australia in 2004 on false passports. They subsequently applied for protection visas which were refused by the Refugee Review Tribunal (RRT). However the RRT approved the application on behalf of GZQZ on 7 September 2012 and the protection visa was subsequently issued to him.
The mother told the Tribunal that both children are in her full-time care, as the father has been in immigration detention since 20 August 2014. The father has instigated judicial proceedings in relation to his visa status but these proceedings had not been finalised. She is the holder of a bridging visa and works as a self-employed hairdresser. On 7 August 2015 the father was transferred from Maribyrnong Immigration Detention Centre to Wickham Point Immigration Detention Centre near Darwin, Northern Territory, so her contact with him is restricted to daily telephone calls instead of daily visits. She said that the separation is causing considerable distress to her and her family.
GZQZ attends the local Catholic primary school (Prep year at the time of her statement) and the mother described him as doing well at school generally, although there have been instances of bad behaviour. She said that he presents as insecure and in constant need of reassurance and routine. She stated that the GZQZ suffers from a form of autism for which he attends the Royal Children’s Hospital every few months and has special needs in relation to his speech and to coping with change. Assistance is provided by a social worker, the church and community organisations. The mother claimed that there are no facilities in Albania to meet GZQZ’s health care needs, and if she is forced to return to that country, she would not be able to access appropriate medical services for him. She said that he does not speak Albanian.
The mother also explained that both she and the father fear persecution and harm if forced to return to Albania. She told the Tribunal that they are the subject of a blood feud or vendetta arising from the dishonour visited upon a man in Albania to whom the mother was betrothed, against her will, in 2002. She said that she and the father had fled Albania before the arranged marriage could take place, but the man and his family had considered her to be his wife and she feared that her family and the man’s family would seek to harm her and the father in order to uphold their honour. She said that she has been treated for major depression, anxiety and post-traumatic stress disorder since October 2009 and continues to see a psychologist on a regular basis.
In relation to GZQZ’s future education in Albania, the mother stated that he would not be able to access any schooling because of the family’s circumstances, the fear of serious harm and his inability to speak Albanian. She said that she fears for her children’s safety, and indicated that she would be considered a single parent in Albania because she and the father are not married. She said that in 2012 she was told to register GZQZ in Albania, but later understood that this would not be possible under Albanian law in the absence of the parents, so there is no realistic possibility of obtaining an Albanian passport for him.
The mother reiterated that she wants GZQZ to be granted Australian citizenship because she wants to ensure his safety and for him to feel secure, particularly as he is a sensitive child who does not cope well with change, and the specialist medical treatment for his autism would not be available in Albania. She said that she would feel less stressed if the citizenship application is approved and his stability is maintained.
At the hearing the mother acknowledged that there is little practical difference between citizenship and permanent residence with regard to GZQZ’s daily activities, but she maintained that citizenship would give him a sense of belonging in the country of his birth. She also conceded that if citizenship is granted to GZQZ she would use his status to try to remain in Australia. She said that if she is forced to leave Australia, she would take GZQZ with her, but if the father is forced to leave she would seek to remain in Australia with GZQZ.
Ms AB, social worker with a church-based agency, made a written statement dated 8 December 2015 in which she said that she has been working with GZQZ and his family since 2011. She stated that she had previously provided a letter of support dated 2 April 2015, and since then, the family has experienced ongoing hardship due to the continued detention of the father. She said that the family had recently secured another rental property, which will be the fifth property in which GZQZ has lived. She noted GZQZ‘s medical condition and stated that he finds change difficult to manage, which places added stress on the mother as his primary care-giver. She also referred to the trauma experienced by GZQZ as a result of the continued separation from the father.
Ms AB told the Tribunal that in her interaction with the family, she has explored their connections and support network. She said that it is clear that GZQZ is well-established at school and enjoys the positive learning environment, but becomes upset when referring to anything connected with Albania. He does not respond to the mother if she speaks in Albanian. She indicated that she supports the application because she believes that GZQZ would face significant hardship and disadvantage without the status of Australian citizenship.
Ms CD, the Principal of GZQZ’s school, made a written statement dated 4 December 2015 in which she said that GZQZ has been a student at the school since January 2015. She stated that she had previously provided a letter of support dated 27 March 2015 and said that while GZQZ has continued to grow and develop academically, socially and emotionally, the sudden and unexpected removal of the father to Wickham Point Immigration Detention Centre had exacerbated the child’s stress and anxiety once again, particularly as he has not been able to see or visit the father. She said that GZQZ’s ability to form trusting relationships with peers at school has been severely compromised and he is often sad and distressed during the school day. Ms CD said that she is concerned to see GZQZ regress socially and emotionally due to circumstances beyond his control.
Ms CD expressed the view that it is in GZQZ’s best interests to be granted Australian citizenship because, as a school community, it is important to nurture his sense of belonging, stability and safety. She said that he has made healthy connections at school, which is a safe, predictable place for him, and the experience is fundamental to his continuing positive development, including the ability to form strong, trusting relationships outside his immediate family in Australia. Ms CD concluded that it is imperative that the application for Australian citizenship be regarded with the utmost urgency and favour.
Dr EF, paediatrician, Royal Children’s Hospital, stated in a letter dated 12 May 2015 to the Minister (similar to a previous letter of support he provided dated 30 March 2015) that GZQZ has a severe language disability, borderline low IQ and Autism Spectrum Disorder. He said that GZQZ requires substantial assistance at school, and is likely to need assistance throughout his school life. Dr EF noted that GZQZ experiences severe distress with changes in his environment. He stated that GZQZ needs stability in his citizenship status, and that separation from his father will have long-term negative consequences for GZQZ. Dr EF strongly recommended that the application for Australian citizenship be granted promptly.
The Tribunal adjourned the matter following the hearing to await the Federal Court’s decision in relation to a refusal of a bridging visa to GZQZ’s father. On 25 October 2016 Kenny J handed down her decision quashing a decision of the Assistant Minister for Immigration and Border Protection to refuse an application for a Bridging E (Class WE) visa on the basis of jurisdictional error.
The Tribunal held a directions hearing by telephone on 22 November 2016. It was decided to await the outcome of a reconsideration of the father’s application for a bridging visa. The Tribunal was advised that the Judge’s decision would not be the subject of an appeal. The parties were asked to let the Tribunal know once they were aware of further developments in relation to the father.
The Tribunal checked on progress from time to time. On 13 June 2017 GZQZ’s solicitor notified the Tribunal as follows:
The applicant does not wish to make any further submissions.
We simply note that the circumstances of the applicant’s family have not changed since our email of 5 November 2016, in which we informed the Tribunal that following the Federal Court decision relating to the applicant’s father, his matter is being considered by the Visa Applicant Character Consideration Unit (VACCU) and we have still not received an outcome relating to the applicant’s parents’ International Treaties Obligations Assessment (ITOA). The applicant’s father remains on Christmas Island and the remainder of the family remain in Melbourne.
The applicant would therefore welcome the decision in this matter being handed down whenever it is convenient for the Tribunal.
On 17 June 2017 the Minister’s solicitor advised the Tribunal that he did not wish to add anything further.
Consideration
The Tribunal is obliged to apply the policy contained in the ACIs unless there are cogent reasons not to do so (Re Drake v Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634). In this case the Tribunal considers that there are no cogent reasons not to do so, and the policy in the ACIs should be applied.
There is no dispute between the parties, and the Tribunal accepts, that GZQZ was eligible to apply for Australian citizenship under s 21(5) of the Act as he was aged under 16 at the time of application. He was an Australian permanent resident at the time the application was made and at the time the decision on his application was made.
Is it in the best interests of GZQZ that he be granted Australian citizenship?
Although the best interests of the child is not defined in the Convention on the Right of the Child, the Preamble recognises that every child is entitled to protection from violence and abuse; families should be respected; and the child should be able to preserve his or her identity.
There is no evidence before the Tribunal that if GZQZ is not granted Australian citizenship at this time, his best interests, as informed by the Convention, will be compromised. GZQZ is protected by his mother from violence and abuse; the family is able to remain together at present (apart from the detention of the father); and his identity is preserved. If the mother is forced to leave Australia, it is highly likely that GZQZ would accompany her and continue to live with her and be protected by her. There is no evidence to persuade the Tribunal that the lack of an Albanian passport would prevent GZQZ from travelling to Albania, as he is an Albanian citizen pursuant to the laws of that country because his parents are Albanian citizens, and he would probably be able to obtain acceptable documents for travel purposes. GZQZ’s permanent visa would enable him to visit Australia whenever practical.
For these reasons, the Tribunal finds that GZQZ has not demonstrated that it is in his best interests that his application for Australian citizenship be granted by conferral at this time.
Would GZQZ otherwise suffer significant hardship and disadvantage if his application for Australian citizenship is refused?
The Tribunal takes into account the evidence from the mother, Ms AB, Ms CD and Dr EF, all of whom referred to the stress and anxiety experienced by GZQZ as a result of the separation from the father. Ms AB has worked with the family since 2011 and reported that GZQZ is well-established at school but becomes upset when referring to anything to do with Albania. She concluded that GZQZ would face significant hardship and disadvantage without the status of Australia citizenship. Ms CD noted that GZQZ has continued to grow and develop academically, socially and emotionally at school, but she believed that the grant of Australian citizenship should be regarded with the utmost urgency and favour. Dr EF noted that GZQZ would require ongoing assistance at school, and expressed the view that GZQZ needs stability in his citizenship status.
The mother’s evidence confirms that the family is suffering a degree of hardship because of the detention of the father and his separation from his family, together with the uncertain visa status of the mother and the father.
The Tribunal accepts that GZQZ is a young boy who has lived all his life in Australia and has a close connection with Australia. He has special needs that are being addressed by medical practitioners, and he is doing well at school and at home with the support of teachers and community organisations. He has been granted a protection visa on the basis of the risk of serious harm if he returns to Albania. His parents have been unable to register his birth in Albania and have been unsuccessful in obtaining an Albanian passport for him.
As GZQZ’s parents have been refused protection visas, their immigration status remains uncertain, raising questions about whether GZQZ would remain in Australia if his parents (particularly the mother) are forced to leave. The uncertainty about the application for citizenship has affected the mother and has caused her some emotional distress, which in turn affects GZQZ.
However the Tribunal also accepts that any hardship or disadvantage caused to GZQZ arises not only because of the refusal of citizenship, but is due mainly to the father’s detention and the uncertain visa status of both parents. There is no evidence before the Tribunal that the grant of citizenship would protect GZQZ from the instability of the parents’ situation or from the possibility that he may be required to return to Albania with them.
Similarly, as GZQZ is already doing well at school and his medical and special needs are being addressed, there is no evidence before the Tribunal to suggest that this would cease without the grant of Australian citizenship. As a permanent resident, GZQZ has permission to remain in Australia and to continue to receive the support he currently enjoys by way of access to education, health and social welfare services. The grant of citizenship would make no difference to his right to reside in Australia.
For these reasons the Tribunal finds that GZQZ would not otherwise suffer significant hardship and disadvantage if his application for Australian citizenship is refused.
Do the full circumstances of GZQZ’s case (including his best interests) nevertheless warrant approval of his application for Australian citizenship because of the unusual nature of those circumstances?
Determining whether the circumstances of a case can be considered unusual will be based on an assessment of its particular facts. Previous decisions of the Tribunal, whilst not binding on subsequent Tribunals, may provide some guidance. In Pak and Department of Immigration and Citizenship [2010] AATA 157 the Tribunal stated at [10]:
The principal submission advanced on Ms Pak’s behalf to the effect that her circumstances were exceptional, or very unusual, relied on the length of her virtually unbroken residence in Australia, the fact that she had completed all her schooling in this country and that she had formed close personal ties here. There is no reason to doubt Ms Pak’s sincerity concerning her desire to become an Australian citizen. However, the matters to which reference has been made do not, in my view, amount to either exceptional or very unusual circumstances.
In addition to its findings about the lack of hardship and disadvantage, and the best interests of GZQZ, the Tribunal takes into account that GZQZ was granted a protection visa in 2013, not as a refugee with a well-founded fear of persecution, but on the basis of the claims of his parents arising from the alleged blood feud and also GZQZ’s developmental delay and associated medical issues. However the events giving rise to the alleged blood feud occurred about 15 years ago, and there is no persuasive evidence that GZQZ would be in any danger if he is required to return to Albania with his parents. There is no evidence that medical facilities in Albania would be inadequate or otherwise unable to deal with GZQZ’s special needs. Accordingly the Tribunal is not satisfied that, when viewed in its overall circumstances, GZQZ’s position is out of the ordinary or unusual, particularly in view of his status as a permanent resident of Australia.
For these reasons the Tribunal finds that GZQZ has not demonstrated that the full circumstances of his case are so unusual that approval of his Australian citizenship application is warranted at this time.
DECISION
The Tribunal affirms the decision under review.
I certify that the preceding 48 (forty-eight) paragraphs are a true copy of the reasons for the decision herein of Regina Perton, Member
................[sgd]...............................
Associate
Dated: 5 July 2017
Date of hearing: 13 May 2016 Date of last submission:
Counsel for the Applicant:
23 June 2017
Ms N Karapanagiotidis
Solicitors for the Applicant:
Asylum Seeker Resource Centre
Counsel for the Respondent:
Mr L Helsdon
Solicitors for the Respondent:
Sparke Helmore
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