Han and Minister for Home Affairs (Citizenship)
[2019] AATA 3325
•6 September 2019
Han and Minister for Home Affairs (Citizenship) [2019] AATA 3325 (6 September 2019)
Division:GENERAL DIVISION
File Number(s): 2018/2419
Re:Quang Minh Han
APPLICANT
AndMinister for Home Affairs
RESPONDENT
DECISION
Tribunal:Chris Puplick AM, Senior Member
Date:6 September 2019
Place:Sydney
The decision under review is affirmed.
.............................[sgd]...........................................
Chris Puplick AM, Senior Member
CATCHWORDS
CITIZENSHIP – refusal – exercise of discretion under section 24 of Australian Citizenship Act to refuse approval – applicant under the age of 16 – definition of responsible parents – application of citizenship policy – convention on the rights of a child – consideration of best interests of Applicant – decision affirmed
LEGISLATION
Australian Citizenship Act 2007 (Cth)
Australian Citizenship Amendment (Citizenship Test Review and Other Matters) Act 2009 (Cth)
Law on Vietnamese Nationality [Viet Nam], No. 24/2008/QH12, 13 November 2008
Migration Act 1958 (Cth)
CASES
Drake and Minister for Immigration and Ethnic Affairs [1979] AATA 179
Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634
Elias v Federal Commissioner of Taxation [2002] 123 FCR 499
G v Minister for Immigration and Border Protection [2018] FCA 1229
Galuak and Minister for Immigration and Border Protection (Citizenship) [2018] AATA 2301
GZQZ and Minister for Immigration and Border Protection (Citizenship) [2017] AATA 1052
Home Affairs v G [2019] FCAFC 79
Plaintiff M64/2015 v Minister for Immigration and Border Protection [2015] 258 CLR 173
Santana v Minister for Immigration and Citizenship [2011] AATA 492
Shi and Migration Agents Registration Authority [2008] HCA 31
Ur Rehman and Minister for Home Affairs (Citizenship) [2019] AATA 2344
Vizman and Minister for Immigration and Border Protection (Citizenship) [2016] AATA 328
Wijewardhanage and Minister for Immigration and Border Protection [2018] AATA 746
Zlatanovski and Minister for Immigration and Citizenship (Citizenship) [2010] AATA 243
SECONDARY MATERIALS
Convention on the Rights of the Child, opened for signature 20 November 1989, 1577 UNTS 3 (entered into force 2 September 1990)
Citizenship Policy (effective 1 June 2016)
Department of Immigration and Border Protection: Standard Q&A Report – Vietnam: Retention of Vietnamese Nationality (16 December 2016)
European University Institute: Country Report 2017/13 (September 2017): Report on Citizenship Law – Vietnam
Kim Rubenstein: Australian Citizenship Law (second edition, Lawbook Co. 2017)
Senate, Hansard, 25 June 2009
REASONS FOR DECISION
Chris Puplick AM, Senior Member
6 September 2019
Quang Minh Han (the Applicant) was born in August 2014 in Vietnam and is a citizen of that country. He was granted an Australian permanent visa (Child: Class AH, subclass 101) on 8 December 2016.[1]
[1] Section 37 Tribunal Documents at [43].
In April 2017 the Applicant’s father made an application for his son to be granted Australian citizenship by conferral under section 21(5) of the Australian Citizenship Act 2007 (the Act).
The Applicant’s father arrived in Australia from Vietnam in May 2008 (Subclass 127: Business Owner visa) and his mother in October 2017 (Subclass 100: Partner visa). The Applicant’s grandfather and grandmother both arrived in May 2008 holding permanent subclass 127 visas and became Australian citizens in June 2013.[2]
[2] The grandmother’s citizenship certificate is produced as an attachment to her statement of 4 October 2018 and the Tribunal was informed that the grandfather’s citizenship was granted at the same time.
It is common ground between the parties that the Applicant meets all the statutory requirements set out in the Act and is eligible to be granted citizenship.
Under section 24(1) once a person has made an application under section 21 the Minister must make a decision to either grant or not grant their application. Making a decision one way or the other is mandated.
However, under section 24(2) of the Act, the Minister (the Respondent) has an entirely discretionary power – he/she may either grant or refuse such a conferral of citizenship to persons who have established their eligibility under s 21(5). This power has been characterised as constituting a “discretionary override”[3] in terms of the operations of the Act.
[3] Vizman and Minister for Immigration and Border Protection (Citizenship) [2016] AATA 328 at [22].
On 17 April 2018 the Minister, through his delegate, exercised this discretionary power and refused the grant of citizenship.
On 3 May 2018 the Applicant sought a review of that decision by this Tribunal and the application for review was heard on 30 August 2019. The Applicant was represented by counsel.
The only matter for review is whether or not the Minister’s exercise of his discretion has produced the “correct or preferable decision”[4] in relation to this child’s application.
[4] Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634 at [642].
THE LEGISLATIVE FRAMEWORK
The relevant sections of the Act are:
Section 21
(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.
In 2009 the Australian Citizenship Amendment (Citizenship Test Review and Other Matters) Act 2009 amended section 21(5) to insert the requirement that a child applying for citizenship by conferral needed to have the status of an Australian permanent resident. Prior to that date any child under age 18 could make an application. The purpose of the amendment, as explained by the Minister was to “ensure the integrity and consistency of the citizenship and migration programs”[5] bringing this section into line with other provisions of the Act (sections 21(2), (3) and (4)) which contained permanent residency requirements. It was also intended to “prevent children who are in Australia unlawfully, or who along with their families have exhausted all migration options, from applying for citizenship in an attempt to prevent their removal from Australia.”[6]
Section 24
(1) If a person makes an application under section 21, the Minister must, by writing, approve or refuse to approve the person becoming an Australian citizen.
…………..
(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).
[5] Senate Hansard, 25 June 2009 at [4264].
[6] Idem.
THE POLICY FRAMEWORK
The Minister has promulgated a Citizenship Policy (effective 1 June 2016) the role of which is
“to support the Australian Citizenship Act 2007 (the Act). Citizenship Policy provides guidance on the interpretation of, and the exercise of powers under, the Act and the Australian Citizenship Regulations 2007 (the Regulations). Policy cannot constrain the exercise of delegated powers under the Act or the Regulations.”[7]
[7] Citizenship Policy (1 June 2016) at [1].
The Tribunal notes that prior to the introduction of the Policy as from 1 June 2016, decision-makers were required to have regard to what were then the Australian Citizenship Instructions (ACIs), That document had a similar opening paragraph as the Policy but included an additional penultimate sentence which read: “Decision makers should be mindful that policy must not be applied inflexibly.”
In Minister for Home Affairs v G the Full Federal Court, in reference to a case initiated before the Citizenship Policy had superseded the ACIs, stated:
“There is no power conferred by the Australian Citizenship Act to make the Instructions. Despite appearing in a form that resembles a legislative instrument or that has a statutory source, the Instructions are made in an exercise of executive power.”[8]
[8] Home Affairs v G [2019] FCAFC 79 at [18].
The same caveat applies to the Citizenship Policy.
This contrasts, for example, with the power of the Minister under section 499 of the Migration Act 1958 where legislative authority is given to the Minister to issue “directions” to decision-makers about the exercise of their functions or powers which are biding upon such decision-makers.
Nevertheless, decision-makers (including this Tribunal) must be guided by the principles set out clearly in the decision in Drake and Minister for Immigration and Ethnic Affairs (No 2) at by the then AAT President Brennan J:
Not only is it lawful for the Minister to form a guiding policy; its promulgation is desirable, for reasons stated above. Its promulgation is consistent with the view of the distinguished American writer on administrative law, Professor K C Davis, a view which has received judicial approval in the United States:
When legislative bodies delegate discretionary power without meaningful standards, administrators should develop standards at the earliest feasible time, and then, as circumstances permit, should further confine their own discretion through principles and rules.
(See Administrative Law Treatise, 2nd ed vol 2 para 8.8.)
That is a commendable approach. It is not a rule of law, but it is none the less valuable as a principle of discretionary decision-making.
In Drake's case, supra, at 601, Smithers J expressed the opinion that “no substantial fault can be found” with the Minister's policy and as that is so there is no reason why the Minister should not apply it in deciding the cases before him. Application of a policy of this kind does not mean an unquestioning adoption of its standards and values, but rather an assumption that, in the absence of any reason to the contrary, its standards and values are appropriate to guide the decision in cases falling within its terms. It is in this sense that I use the term “apply” hereafter with reference to the Minister's stated policy.
It is one thing for the Minister to apply his own policy in deciding cases; it is another thing for the Tribunal to apply it. In point of law, the Tribunal is as free as the Minister to apply or not to apply that policy. The Tribunal's duty is to make the correct or preferable decision in each case on the material before it, and the Tribunal is at liberty to adopt whatever policy it chooses, or no policy at all, in fulfilling its statutory function. (1979) 2 ALD 634 at 643
In fulfilling its function, the Tribunal, being independent of the Minister, is free to adopt reasoning entirely different from the reasoning which led to the making of the decision under review. But it is not bound to do so. Of course, the Tribunal would be in error to apply an unlawful ministerial policy to cases it decides, for an application of unlawful policy vitiates the consequential decision. That problem does not arise in the present case.
His Honour also stated:
The Minister must decide each of the cases under ss 12 and 13 on its merits. His discretion cannot be so truncated by a policy as to preclude consideration of the merits of specified classes of cases. A fetter of that kind would be objectionable, even though it were adopted by the Minister on his own initiative. A Minister's policy, formed for the purposes of ss 12 and 13 of the Migration Act, must leave him free to consider the unique circumstances of each case, and no part of a lawful policy can determine in advance the decision which the Minister will make in the circumstances of a given case.
The relevant section of the Citizenship Policy (Policy)[9] which deals with cases involving applications by children under the age of 16 applying individually in their own right is as follows:
Children under 16 applying individually in their own right would usually not be approved under s24 unless they are permanent residents at the time of application and decision and under policy also are:
·under 16 when applying and living with a responsible parent who is an Australian citizen and who consents to the application or
·usually resident in Australia with a permanent resident 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
·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 (refer to Significant hardship or disadvantage / detriment) or
·an unaccompanied humanitarian minor who falls under the Minister’s guardianship and a delegated guardian has consented to the application (refer to IGOC minors (s21(5))) or
·an unaccompanied humanitarian minor who does not fall under the Minister’s guardianship and their responsible carer has consented to the application (refer to Non-IGOC minors (s21(5))).
[9] Citizenship Policy at [76].
CONVENTION ON THE RIGHTS OF THE CHILD
On 16 January 1991 the Convention on the Rights of the Child (the Convention) entered into force in Australia[10] and, as a result, the Australian government and its authorities are bound to give effect to its provisions.
[10] Convention on the Rights of the Child, opened for signature 20 November 1989, 1577 UNTS 3 (entered into force 2 September 1990).
Article 3.1 of the Convention is as follows:
“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.”
This obligates decision-makers in cases such as this to have due regard to the “best interests of the child” alongside other primary considerations such as conformity with statutory or legislative or policy requirements.
The obligations imposed on Australian decision-makers by the Convention are reflected in the Policy document at Chapter 22. It includes, inter alia, the following provisions:
When to assess the best interests of the child
As Article 3 is worded ‘all actions concerning children’, officers should assess the best interests of a child in relation to:
·decisions under the Act directly relating to the child and
·decisions under the Act about a family member, primary care giver or other person who has claimed responsibility for the child, even if the decision does not directly relate to the child. This is because a decision about a parent or primary care giver may affect the child. The child concerned may be a non-citizen or an Australian citizen child of a non-citizen parent.
……….
What are the best interests of the child
Definition of best interest of the child
The meaning of ‘best interests of the child’ is not defined, but is informed, in part, by the principles in the CROC. 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.
Those factors raised by the applicant or a third party, or evident on the available material, must be considered. Decision makers are not required to request further material for consideration regarding the rights of a child.
Although the CROC provides that minors are entitled to access public education, public health services and social welfare, and to not be subject to economic exploitation, these generally will not be an issue when deciding citizenship applications. This is because:
·there is no discretionary power to refuse citizenship applications under Division 2, Subdivisions A (Descent) and AA (Hague Convention or bilateral arrangement adoption) and
·most applicants under Division 2 Subdivision B (Conferral) are permanent residents, who have appropriate access to education, health and social welfare services, and when in Australia are covered by the same labour laws as Australian citizens.
………..
A child’s best interests must be considered when exercising a discretionary power under these provisions of the Act:
……
· s24(2) – refusal of an application for citizenship by conferral
…….
Weighing the best interests of the child against other matters
Article 3 requires that the best interests of the child be a primary consideration in all actions concerning children. Article 3 does not require that the best interests of the child be the only primary consideration. The best interests of the child must be weighed with or against any other primary considerations in the specific circumstances. Other primary considerations may include, but are not limited to:
·the objectives of the relevant provision/s in the Act
· community protection and
·community expectations.
This means that although it may be assessed that a particular decision would be in the best interests of a child, it does not automatically follow that it is the decision that should be made. For example, it may be in the best interests of a child for a delegate to decide not to revoke an associated person’s Australian citizenship under s34 but, depending on the particular facts and after taking into account the other primary considerations, the decision maker may conclude that revocation of the person’s citizenship is the decision that should be made.
As Professor Kim Rubenstein writes in her authoritative analysis of Australian citizenship law:[11]
“ … the policy makes it clear that the Convention on the Rights of the Child does not require that the best interests of the child be the only primary consideration. The child’s best interests must be “weighed with or against any other primary considerations in the specific circumstances”, including the objectives of the relevant provisions, community protection and community expectations.” (emphasis in original)
[11] Kim Rubenstein: Australian Citizenship Law (second edition, Lawbook Co., 2017) at [134].
APPLICANT’S SUBMISSION
The immediate gravamen of the Applicant’s submission at hearing was to the effect that the Citizenship Policy should not be applied in relation to this application as it fails to take into account and be responsive to, the “unique” situation of the Applicant as a member of the Vietnamese community and the cultural norms of that community as a whole. This was, the Applicant asserted, reflected in the fact that in that community the grandmother would be regarded as “the responsible parent” in terms of care of the Applicant.
Otherwise, the Applicant’s submission essentially rests on two grounds touching upon potential disadvantage should the application be refused. These are:
1. The Applicant faces difficulties related to repeat applications for a visa for a child who travels overseas frequently, in this instance to spend time with his father in Vietnam, and to maintain some sense of understanding of and connection with Vietnamese culture[12] and
2. Absence of citizenship impairs “Minh’s best interests to grow into awareness being fully a part of the Australian community” and that lack of citizenship somehow “sets him apart” from that.[13]
[12] Applicant’s Statement of Facts, Issues and Contentions at [10]; Statement of Thi Kim Chao To at [7].
[13] Applicant’s Statement of Facts, Issues and Contentions at [9]; Statement of Thi Hong Hanh Nguyen (dated 4 October 2018) at [4].
RESPONDENT’S SUBMISSION
The Respondent, at the hearing, resisted the Applicant’s contention about the non-applicability of the Citizenship Policy, affirming that the Policy was intended to apply to all members of the Australian community and did not make exceptions for particular groups within it. Moreover, there was nothing “unique” about the Vietnamese culture or community, as contrasted with other immigrant communities, which would validate it being carved out as an exception to such a general proposition.
The case put by the Respondent in favour of an affirmation of the reviewable decision, apart from dismissing visa processing delays as not amounting to a significant hardship for the Applicant[14], is summarized in their Submission thus:
The respondent also notes, however, that a decision to approve the applicant becoming an Australian citizen would have the effect that the applicant would have a different status to his parents, who have not applied for Australian citizenship and therefore will remain permanent residents. The respondent contends that the preferable course is that the applicant would be approved for Australian citizenship when his parents are also eligible to be approved to become Australian citizens (unless other reasons under the policy or particular circumstances necessitate a different approach): this would ensure that the applicant maintains an equivalent status to his parents and better ensures that the applicant's family (consisting of himself and his parents) remains together (see, by way of comparison, s 25(4)). The respondent contends that the Tribunal should be cautious regarding approving a child to become an Australian citizen in circumstances such as these where the child and his or her parents will then have a different status with respect to their presence in Australia, and the possibility, even if remote, that this different status could contribute to the separation of the child from his or her parents.[15]
[14] Respondent’s Statement of Facts, Issues and Contentions at [37].
[15] Respondent’s Statement of Facts, Issues and Contentions at [34] .
GUIDANCE FROM AUTHORITIES
There have been a number of cases before the Tribunal and the Courts which discuss applications for citizenship by conferral from children, but only those which post-date the 2009 amendment inserting the permanent residency requirement, and have been decided with reference to the 2016 Citizenship Policy statement, are relevant.
In Wijewardhanage[16] the Tribunal considered an application from a mother and two children, aged about 5 and 3 years at the time of the application. The Tribunal found that the mother failed to meet requirements for citizenship by conferral due to her brief period in Australia as an unlawful non-citizen. It found her children to have met the requirements for grant of citizenship but confirmed the Minister’s decision to deny them citizenship because they failed to meet the requirements of the Policy. The Tribunal set out its reasons as follows:
[37] Thus the administrative scheme developed to condition the exercise of the discretion arising from subsection 22(4A) of the Citizenship Act is that where a parent is granted citizenship, children of the person would normally be granted it at the same time; but if it is denied the parent, it is only granted to the children under exceptional circumstances. The purpose, presumably, is to maintain an integrated citizenship status for the family and avoid creating circumstances that might encourage families to split up. Provided it is applied with some flexibility, I cannot see that the Policy is inconsistent with the Act, which in this area confers a very broad discretion on the Minister either to approve or refuse the grant of citizenship.
[38] In present circumstances, the only relevant consideration is whether Krishni and Tristan would suffer significant hardship or disadvantage if refused citizenship. Chapter 3 of the Policy elaborates on the meaning of significant hardship or disadvantage. In general, the material there, which relates to matters such as whether a person could secure employment, is not relevant to children. The Minister argued that Krishni and Tristan will continue to receive the main benefits of living in Australia, as these come with permanent residency rather than citizenship. Thus education, social security, family assistance and health care are all available to them.
[39] Australia is a party to the Convention on the Rights of the Child, having ratified that instrument in 1990. The Policy notes that Article 3 of that Convention commits states parties to take into account the rights of children in all decisions concerning them made by courts and administrative bodies, among others. The enumerated rights in the Convention include the right to a nationality and to be cared for by the child’s parents (Article 7), to medical assistance and health care (Article 24), to social security support (Article 26) and to education (Article 28). The Convention places considerable emphasis on the importance of maintaining the family unit and the bond between parents and children.
[40] In all the circumstances of this matter, it would be difficult to conclude that Krishni and Tristan would suffer significant hardship or disadvantage if refused citizenship. They remain with their parents and will have their care and attention; I have no evidence that they would be at risk of going without the essentials of life. They will have access to the basic services provided in Australia to all residents, including education, health care and social security. It is not contrary to the best interests of the children to refuse them citizenship when their parents’ citizenship has been refused. I conclude that the Policy should be applied to Krishni and Tristan, and the discretion to refuse citizenship to them should be exercised, despite their eligibility under subsection 21(5) of the Citizenship Act.
[16] Wijewardhanage and Minister for Immigration and Border Protection [2018] AATA 746.
Although not referred to by the Respondent, Wijewardhanage gives support to the Respondent’s argument about the importance of maintaining the “integrated citizenship status” of a family unit in terms of potentially disparate citizenship within it.
On the other hand, as the Applicant pointed out, section 12(1)(b) of the Act itself provides a direct mechanism whereby a person “born in Australia” and “ordinarily resident in Australia” who lives in Australia “throughout the period of 10 years beginning on the day the person is born” automatically becomes an Australian citizen regardless of the citizen-status of their parent(s).
The same line of reasoning was used in GZQZ[17] in relation to the hardship test. However, the Tribunal in that instance also gave more expansive discussion to the question of the best interests of the children. In confirming the Minister’s discretionary refusal of the application the Tribunal stated:
[35] 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.
[36] 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.
[37] 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.
[17] GZQZ and Minister for Immigration and Border Protection (Citizenship) [2017] AATA 1052.
By contrast, in discussing the best interests of the child, the Tribunal in Vizman[18] held:
[40] An analysis of the effect of Article 3.1 is, of course, entirely fact specific. The evidence in relation to Atai demonstrates that his familial/parenting situation is not entirely usual. He was born in Australia but his mother has returned to Israel. His father, also an Israeli citizen, now resides in Australia as an Australian citizen and intends to stay here. Both parents are committed to their son and do their best to ensure that they have an equal role in his upbringing. Doing this across borders is no easy task but both parents seem to be doing an impressive job in that regard. It is clear that both parents intend for their son to spend more time in Australia with his father and that they are committed to him identifying as Australian. The child has already integrated into the Australian community and formed community-based relationships in Australia through his childcare centre arrangements and it is clear that he will spend more and more time with his father in Australia as he gets older and is more independent.
[41] The Tribunal finds that in these circumstances it is in Atai’s “best interests” that his Australian citizenship be approved.
[18] Vizman and Minister for Immigration and Border Protection (Citizenship) [2016] AATA 328.
In Ur Rehman I determined that in setting aside a decision to refuse a father’s grant of citizenship by conferral, the two minor children whose applications were contained in the same application were entitled to citizenship by conferral as a consequence of the primary decision.[19]
[19] Ur Rehman and Minister for Home Affairs (Citizenship) [2019] AATA 2344.
On the other hand, it should be noted that a grant of citizenship by conferral on a child may, in the event of that person, as an adult, committing criminal offences, be revoked.[20]
[20] Galuak and Minister for Immigration and Border Protection (Citizenship) [2018] AATA 2301.
ISSUES FOR DETERMINATION
The Tribunal is thus required to assess three questions:
1. Does the Applicant meet the statutory requirements of the Act?
The answer to that question is YES.
This question may be answered very simply as it is agreed by all parties that the Applicant meets the legislative requirements of section 21(5) of the Act.
2. Does the Applicant meet the requirements of the Policy?
The answer to that question is NO for the following reasons.
The Respondent asserts that the Applicant does not meet the requirements as set out in the Policy. Under the Policy there are four issues to be considered:
(a)Is the Applicant a permanent resident;
(b)Is the Applicant resident with a responsible parent who is an Australian citizen;
(c)Is the Applicant resident with a “permanent resident responsible parent” who would meet the requirement to be an Australian resident but has not applied for citizenship for fear of loss of their current citizenship;
(d)Would the Applicant suffer “significant hardship or disadvantage” were they not to be granted citizenship?
Turning first to the citizenship status of the Applicant’s parents. Neither is an Australian citizen. Both hold permanent residence visas.
As to the Applicant’s residency issues – the Applicant lives in Australia with his non-citizen mother and his citizen grandmother. His grandmother attests that she is in fact the primary carer of the Applicant. In her statement, the grandmother notes that she has been an Australian citizen since 2013 and her husband is also an Australian citizen. Apparently both her husband and her son (the father of the Applicant) are currently resident in Vietnam working in a family business which they intend, at some stage, to sell, whereupon both of them will return to Australia to reside on a permanent basis.[21] The Applicant’s mother makes frequent trips back to Vietnam to be with her husband, leaving the Applicant in the care of his grandmother.[22]
[21] Statement of Thi Hong Hanh Nguyen (dated 4 October 2018) at [2].
[22] Statement of Thi Kim Chau To (dated 4 October 2018) at [6].
There is no reason not to accept the veracity of the statements of Mesdames Nguyen and To which are not challenged by the Respondent.
Section 6 of the Act defines the term “responsible parent””
Responsible parent
(1) For the purposes of this Act, a person is a responsible parent in relation to a child if and only if:
(a) the person is a parent of the child except where, because of orders made under the Family Law Act 1975 , the person no longer has any parental responsibility for the child; or
(b) under a parenting order the child is to live with the person (whether or not the person is a parent of the child); or
(c) under a parenting order the person has parental responsibility for the child's long-term or day-to-day care, welfare and development (whether or not the person is a parent of the child); or
(d) the person (whether or not a parent of the child) has guardianship or custody of the child, jointly or otherwise, under an Australian law or a foreign law, whether because of adoption, operation of law, an order of a court or otherwise.
Application of this definition means that the Applicant’s parents, Quang Binh Han and Thi Hong Hanh Nguyen are the “responsible parents” for the purposes of the Policy, and the Act, irrespective of the primary caring role played by his grandmother. Although the Policy may admit of flexibility of interpretation, the specific definitions in the Act do not.
The Respondent asserts, rightly, in the view of the Tribunal, that this understanding is consistent with the provisions of Article 9 of the Convention on the Rights of the Child.[23]
[23] Respondent’s Statement of Facts, Issues and Contentions at [24].
The Respondent advances the proposition that were the Applicant’s parents to apply for Australian citizenship there is no evidence to suggest that they would lose their citizenship of Vietnam.[24] The Tribunal understands that it is possible to hold dual citizenship of Australia and Vietnam and that this is the case with the Applicant’s grandparents.[25]
[24] Ibid at [21].
[25] As provided for in the Law on Vietnamese Nationality 2009. See Department of Immigration and Border Protection: Standard Q&A Report – Vietnam: Retention of Vietnamese Nationality (16 December 2016); European University Institute: Country Report 2017/13 (September 2017): Report on Citizenship Law – Vietnam.
The Tribunal notes that the Applicant submits that his father suffers from a diagnosed degree of autism[26], although the extent, if at all, of any autism-related disability is not made clear. Mrs To in her statement refers to him having a “developmental disability and severely limited speech.”[27] The Tribunal accepts that this may well be the reason that all supporting statements in this application are from the mother and grandmother while there is none from the father who nominally made the original citizenship application on behalf of his son.[28] Nevertheless, it appears that the Applicant’s father is capable of productive work in his own father’s business in Vietnam and that he manages to travel frequently between Australia and Vietnam.
[26] Medical certificate of Dr Tuan Kiet Nguyen dated 30 August 2019.
[27] Statement of Thi Kim Chau To (dated 4 October 2018) at [3].
[28] Respondent’s Statement of Facts, Issues and Contentions at [4]; Section 37 Tribunal Documents at [17]-[34].
All this would indicate that the Applicant, although a permanent resident, is not residing in Australia with a responsible parent in a way which fulfils the requirements of the Policy.
Finally the question of potential hardship or disadvantage to the Applicant must be considered, bearing in mind that the Policy qualifies these elements by requiring them to be “significant”. The Policy sets out its definition of the term as follows:
In making an assessment of whether a person would suffer significant hardship or detriment / disadvantage, the words have their usual dictionary meaning. The Macquarie Dictionary Fifth Edition makes the following definitions:
·significant – important; 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
· detriment – loss, damage, or injury
·economic – relating to the production, distribution, and use of income and wealth. [29]
[29] Citizenship Policy at [33].
While agreeing that delays and inconveniences may be experienced with repeated visa applications,[30] it is not possible to characterise this as imposing hardship or disadvantage on the Applicant, let alone “significant” hardship or disadvantage. Nor does it distinguish the Applicant’s position from any other visa applicants, thus not attracting any claim to be unusual or exceptional in relation to the Applicant himself.
[30] See Statutory Declaration of Vinh Quang Duong (solicitor on behalf of the Applicant) dated 4 October 2018 at [6]-[12].
Similarly there appears no basis for saying that the Applicant would be prevented from growing up in Australia with a sense of being a full member of the Australian community without the formal grant of citizenship, especially as the Applicant already holds a visa as a permanent resident. He lives with a citizen grandparent. He attends preschool on a regular basis.[31] Additionally, his parents are at liberty to apply for citizenship and should this be granted while the Applicant is still a minor then he could gain citizenship through this route.
[31] See Attachment to Statement of Thi Kim Chau.
IS THE MINISTER’S DECISION IN THE BEST INTEREST OF THE APPLICANT CHILD?
The answer to that question is YES for the following reasons.
It seems axiomatic to the Tribunal that underlying the whole purpose and rationale of the Australian Citizenship Act there is a presumption that it is in the best interests of any individual to hold Australian citizenship when they are qualified to do so. That is the case with this Applicant. To depart from that presumption requires the derogating authority to have sound and cogent reasons.
The Tribunal believes that the reasons advanced by the Minister for the refusal of the application as it relates to the best interests of the child are sound and cogent. They turn primarily upon the argument advanced in paragraph 34 of the Minister’s submission.
The Tribunal is persuaded that it is not in the best interests of the child to be in a situation where his citizenship and that of his parents are not congruent while the Applicant is still at such a young age. There would be, under such circumstances, the real possibility that the family unit could be split or severed. The Tribunal accepts that this is a hypothetical proposition, but difficulties with potential visa non-renewal, cancellation or revocation in relation to the Applicant’s parents may occur and give rise to the possibility of them not being able to remain in or return to Australia. Were the Applicant to be an Australian citizen, such a right could not be denied to him. The evidence before the Tribunal is to the effect that there are significant periods when the Applicant’s parents are in Vietnam and he remains in Australia.
That constitutes a potential disadvantage which needs to be seen against details of the Applicant’s current status where his existing Subclass 101 visa allows his re-entry to Australia for up to the next five years.[32] There is thus no significant impediment on his ability to travel to and from Australia without being an Australian citizen or in possession of an Australian passport. During that time it would be expected that a child under the age of 10 would be travelling with an adult and the evidence before the Tribunal indicated that that was most likely to be his non-citizen mother.
[32] Migration Regulations 1994 Schedule 2, clause 101.511.
The maintenance of some sort of unity of “integrated citizenship status” as outlined in Wijewardhanage is also more consistent with the provisions of Article 9 of the Convention than is the alternative. That Article states:
1. States Parties shall ensure that a child shall not be separated from his or her parents against their will, except when competent authorities subject to judicial review determine, in accordance with applicable law and procedures, that such separation is necessary for the best interests of the child. Such determination may be necessary in a particular case such as one involving abuse or neglect of the child by the parents, or one where the parents are living separately and a decision must be made as to the child's place of residence.
Finally, such an approach is also consistent with the legislative arrangements dealing with the potential cancellation of a child’s visa where interdependent visas for responsible parents have been cancelled which are set out in section 25(4) of the Act.
This conclusion is notwithstanding the Tribunal’s acceptance of the sincerity with which the Applicant’s family, especially his mother and grandmother argue for the grant of citizenship. Both speak of the advantages of living in Australia in terms of its environment, education system and health services.[33] However all of these are available to the Applicant, and will continue to be so, regardless of his present citizenship status due to his holding his current visa.[34]
[33] Statement of Thi Hong Hanh Nguyen (dated 4 October 2018) at [4] and Statement of Thi Kim Chau To (dated 4 October 2018) at [5].
[34] Respondent’s Statement of Facts, Issues and Contentions at [29].
The Applicant loses nothing by the Minister’s decision to refuse his citizenship application at this time and is free to make another application at any time in the future when his circumstances or those of his family have developed further.
CONSIDERATIONS
The Tribunal is unpersuaded by the argument that it should not apply or be guided by the provisions of the Citizenship Policy for the reasons advanced by the Applicant.
The Policy is one of general application and sufficiently broad to encompass a nuanced approach or interpretation taking into account any and all of the cultural and community sensitivities identified by the Applicant. To allow a series of potential carve-outs, exceptions to or derogations from the Policy would have the effect of rendering it useless and meaningless. It would be an intolerable outcome in terms of coherent public policy administration. The value of policy guidelines was recognised by the High Court stating, in the context of considering an executive policy such as this, that
Policy guidelines like the priorities policy promote values of consistency and rationality in decision‐making, and the principle that administrative decision‐makers should treat like cases alike. In particular, policies or guidelines may help to promote consistency in “high volume decision‐making”, such as the determination of applications for Subclass 202 visas. Thus in Drake v Minister for Immigration & Ethnic Affairs [No2], Brennan J, as President of the Administrative Appeals Tribunal, said that “[n]ot only is it lawful for the Minister to form a guiding policy; its promulgation is desirable” because the adoption of a guiding policy serves, among other things, to assure the integrity of administrative decision‐making by “diminishing the importance of individual predilection” and “the inconsistencies which might otherwise appear in a series of decisions”. The subjectivity of the evaluation by a decision‐maker in a case such as the present highlights the importance of guidelines. The importance of avoiding individual predilection and inconsistency in making choices between a large number of generally qualified candidates by the application of the open‐textured criterion of “compelling reasons for giving special consideration” is readily apparent.[35] (Footnotes omitted.)
[35] Plaintiff M64/2015 v Minister for Immigration and Border Protection [2015] 258 CLR 173 at [54] per French CJ, Bell, Keane and Gordon JJ.
Unfortunately, in relation to section 24(2), the Policy makes considerations of its operation more complicated by its use of the qualifying term “usually” – applications would “usually not be approved”.
Much judicial ink has been spent on the definition of what constitutes “usual” behaviour or practice and the term has been considered at length, within the context of similar applications in two decisions by Senior Member Handley, Santana[36] and Zlatanovski[37].
[36] Santana v Minister for Immigration and Citizenship [2011] AATA 492 at [86]-][91].
[37] Zlatanovski and Minister for Immigration and Citizenship (Citizenship) [2010] AATA 243 at [47]-[48].
It was the subject of lengthy analysis by Mortimer J in G v Minister for Immigration and Border Protection[38] although her conclusions about its qualifying or restrictive nature were disapproved by the Full Federal Court on appeal. That Court while confirming that the Minister’s discretion under section 24(1) was “broad and unfettered”, nevertheless held that:
The language used by the section, namely that certain applications would “usually” not be approved unless certain policy guidelines are met, indicates that there will be cases outside the usual course. Thus the policy contemplates that a person may not meet the policy guidelines but their application may nevertheless be approved. In these circumstances, we do not consider it accurate to say that section 5.12.5 of the Instructions imposes a matter in the nature of a precondition on the exercise of the power under s 24(1)…[39]
[38] G v Minister for Immigration and Border Protection [2018] FCA 1229 at [46].
[39] Minister for Home Affairs v G [2019] FCAFC 79 at [73].
Both in this instance and in quoting Elias[40] the Court has made clear that there is a high degree of flexibility open to decision-makers in determining matters where a broad and unfettered discretion is available. It said
[60] However, as Brennan J stated in Drake (No 2) at 641, “[t]hat is not to deny the lawfulness of adopting an appropriate policy which guides but does not control the making of decisions, a policy which is informative of the standards and values which the [decision‐maker] usually applies”. In Elias v FCT , Hely J stated at [34]:
The Commissioner is entitled to adopt a policy to provide guidance as to the exercise of the discretion, provided the policy is consistent with the statute by which the discretion is conferred. Thus if the statute gives a discretion in general terms, the discretion cannot be truncated or confined by an inflexible policy that it shall only be exercised in a limited range of circumstances. A general policy as to how a discretion will “normally” be exercised does not infringe these principles, so long as the applicant is able to put forward reasons why the policy should be changed, or should not be applied in the circumstances of the particular case.
[40] Elias v Federal Commissioner of Taxation [2002] 123 FCR 499.
At the end of the day the safest course of action is to take the simple dictionary definition of the word as meaning something that is not exceptional or out of the ordinary.
Hence, taking the approach that the Tribunal is not limited in its review of any section 24 decision to testing the decision against only those matters outlined in the Policy, for a challenge to be successful there must be some element in the application which sets it apart and gives it some unique quality which would justify considering it as exceptional or out of the ordinary and requiring a departure from the basis upon which a decision would “usually” be made.
As stated, the Tribunal must consider not only the Policy, but also the Convention and the full circumstances of the Applicant focusing upon his best interests as a primary concern along with others. This includes all submissions made prior to and during the hearing so that the Tribunal’s decision can be based, as it must be, on the evidence before it at the point of decision-making.[41] However, just because the best interests of the child are a primary concern that does not imply that other concerns may be given equal weight and indeed may overbear those specific best interest considerations.
[41] Shi and Migration Agents Registration Authority [2008] HCA 31 at [37], [50].
CONCLUSIONS
The Tribunal has come to the following conclusions:
1. The Applicant meets the legislative requirements for the grant of citizenship by conferral.
2. The Minister’s discretionary decision to refuse the application is justified on the basis that:
a) The Applicant does not meet the requirements as set out in the Citizenship Policy; and
b)It is not in the best interests of the Applicant that his application be approved.
DECISION
The decision under review is affirmed.
I certify that the preceding 70 (seventy) paragraphs are a true copy of the reasons for the decision herein of Chris Puplick AM, Senior Member
..............................[sgd]..........................................
Associate
Dated: 6 September 2019
Date(s) of hearing: 30 August 2019 Counsel for the Applicant: Mr L Karp Solicitors for the Applicant: Mr V Duong, Vinh Duong & Associates Solicitors for the Respondent: Mr H McLaurin, Minter Ellison
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