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

HRSP and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Citizenship) [2021] AATA 4563 (27 October 2021)
Division:GENERAL DIVISION
File Number: 2021/4697
Re:HRSP
APPLICANT

AndMinister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
RESPONDENT

DECISION
Tribunal:Senior Member A. Nikolic AM CSC
Date of Decision: 27 October 2021
Date of Written Reasons: 8 December 2021

On 27 October 2021, the Tribunal affirmed the decision under review. These are the written reasons for that decision.
.......................[sgd].................................................
Senior Member A. Nikolic AM CSC
CATCHWORDS

CITIZENSHIP - application for conferral of Australian citizenship - s 24(2) Australian Citizenship Act 2007 (Cth) - United Nations Convention on the Rights of the Child - whether Applicant covered by policy guidelines – whether Applicant meets the eligibility criteria at s 21(5) of the Act - whether discretion to refuse should be exercised - decision affirmed
LEGISLATION
Administrative Appeals Tribunal Act 1975 (Cth)
Australian Citizenship Act 2007 (Cth)
CASES
Drake and Minister for Immigration and Ethnic Affairs, Re (No 2) (1979) 2 ALD 634
Minister for Home Affairs v G (2019) 164 ALD 103
Negri v Secretary, Department of Social Services [2016] FCA 879
SECONDARY MATERIALS
Department of Immigration and Border Protection, Australian Citizenship Policy Statement (27 November 2020)
Convention on the Rights of a Child, opened for signature 20 November 1989, 1577 UNITS 3 (entered into force 2 September 1990)
Refugee, Citizenship and Multicultural Programs Division, Department of Home Affairs, Revised Citizenship Procedural Instructions (1 January 2019)
REASONS FOR DECISION
Senior Member A. Nikolic AM CSC
8 December 2021

The Applicant is a minor child[1] and the decision under review relates to refusal of their citizenship application under s 24(2) of the Australian Citizenship Act 2007 (Cth) (the Act).
[1] Exhibit R1, 19 [Q29].
The hearing was held in Melbourne on 25 and 27 October 2021. The Applicant was represented by his parents, but the child did not appear at the hearing. The Minister was represented by Mr Alex Chan of Sparke Helmore Lawyers.
At the conclusion of the hearing the Tribunal provided oral reasons. On 18 November 2021, the Applicant’s mother requested a statement in writing of the reasons for decision. These are now provided consistent with the requirements of s 43(2B) of the Administrative Appeals Tribunal Act 1975 (Cth) (AAT Act) and Federal Court authority, which states:[2]
...As long as the reasoning remains consistent, there can be no objection to the provision of a more-elaborate exposition of the same reasoning that was orally explained. What is not permissible is altered or new reasoning. The Tribunal is not permitted to substantially divert from the reasoning upon which its decision was made, but is permitted to explain that reasoning differently and, in doing so, is required to address the matters specified in s 43(2B).
[2] Negri v Secretary, Department of Social Services [2016] FCA 879, [27] (Bromberg J).
For the following reasons, the Tribunal affirms the decision under review.
APPLICANT’S IDENTITY
Pursuant to s 35 of the AAT Act, the Tribunal considers it appropriate to anonymise the Applicant’s identity, who will be referred to as ‘HRSP’. Certain details tending to identify HRSP have been redacted.
BACKGROUND
The Applicant was born overseas and came to Australia with his parents about a decade ago. He was included in his mother’s citizenship application, which was refused in early 2021.[3] The Applicant’s citizenship application was subsequently considered in its own right, based on whether the requirements set out under s 21(5) of the Act were satisfied. The delegate refused the application, finding that the Applicant did not meet the relevant policy guidelines set out for children applying in their own right.
[3] Exhibit R1, 8-15.
On 14 July 2021, the Applicant’s mother asked the Tribunal to review the refusal decision.[4]
[4] Ibid 1-7.
LEGISLATIVE FRAMEWORK
The Preamble to the Act outlines the nature of citizenship and its accompanying rights and responsibilities as follows:
The Parliament recognises that Australian citizenship represents full and formal membership of the community of the Commonwealth of Australia, and Australian citizenship is a common bond, involving reciprocal rights and obligations, uniting all Australians, while respecting their diversity.
The Parliament recognises that persons conferred Australian citizenship enjoy these rights and undertake to accept these obligations:
(a)       by pledging loyalty to Australia and its people; and
(b)       by sharing their democratic beliefs; and
(c)       by respecting their rights and liberties; and
(d)       by upholding and obeying the laws of Australia.
Section 21(1) of the Act provides that a person may apply to the Minister to become an Australian citizen.
Section 24(1) of the Act provides that the Minister must approve or refuse an application for citizenship made under s 21. Section 24(1A) obliges the Minister to refuse an application unless the person meets the eligibility requirements under ss 21(2) to (8) of the Act. The Applicant’s mother did not satisfy the identity requirement under the Act.
Relevantly for the purpose of this application, s 21(5) of the Act applies where the citizenship applicant is under 18 years of age. This provision imposes the following eligibility requirements for citizenship by conferral:
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(2) of the Act confers a discretionary power upon the Minister to refuse to approve an application for Australian citizenship despite the person meeting the eligibility requirements of s 21(5).
Section 25(1)(a) of the AAT Act and s 52(1)(b) of the Act are the sources of the Tribunal’s jurisdiction to review decisions under s 24 of the Act.
Citizenship Policy and Procedural Instructions
In determining citizenship claims, Departmental decision-makers are assisted by policy. The Full Court of the Australian Federal Court has held that the discretion to approve or refuse citizenship is unfettered, and ‘not inimical to the adoption of executive policy…to guide the exercise of discretion.’[5] Their Honours reasoned that the Act envisaged the adoption of such policy to promote consistency and rationality in decision-making.[6] Noting that each case before the Tribunal is considered de novo and on its merits, executive or Departmental policy may be considered unless there is a cogent reason not to do so.[7]
[5] Minister for Home Affairs v G (2019) 164 ALD 103, 120 [64].
[6] Ibid, [65]; [70].
[7] Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634.
In determining review applications, decision-makers can consider the Australian Citizenship Policy Statement 2020 (the Policy) and Citizenship Procedural Instruction 4-Australian Citizenship by Conferral-Person under 18 (CPI 4). Guidance in CPI 4 under the heading ‘Purpose’, exhorts decision-makers to ‘consider the Department’s approved policy and procedures where relevant and appropriate’ so as to ensure ‘decision-making is consistent to the extent that it is appropriate and arbitrary outcomes are avoided.’
Cl 7.1 of CPI 4 applies to applications for citizenship lodged independently on behalf of children aged 15 years and under. It provides the following general instructions:
In order to uphold and maintain the integrity of the citizenship program decision-makers must have due regard to all the circumstances of the family unit when considering individual applications made by or on behalf of a child aged 15 years and under, or where a child’s application is being considered as an individual application because their responsible parent’s application has been refused or their parent has died.
CPI 4 identifies the following factors as relevant to a decision under s 24(2) of the Act, as to whether the Minister should exercise the discretion to refuse the application. Decision-makers are counselled 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…
Applications must also be carefully considered to ensure that the child and their family unit or their relevant responsible parent, intends to reside, or continues to reside, in Australia or to maintain a close and continuing relationship with Australia should the application be approved.
The Applicant is a child of parents who are not Australian citizens and consent to his application, reflective of the third category at cl 7.1 of CPI 4. This enlivens consideration of whether ‘the child would suffer significant hardship or disadvantage if they were not to become an Australian citizen at this time’.
Cl 10.1 of CPI 4 states that in deciding whether to exercise the discretion under s 24(2) of the Act, decision-makers should undertake a ‘best interests of the child assessment’, which must be included in the reasons for the decision to demonstrate that the decision-maker has considered this matter. This reflects Article 3 of the United Nations Convention on the Rights of the Child (UNCRC) to which Australia is a party, which provides:
In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interest of the child shall be a primary consideration.
CPI 4 provides guidance as to how the best interests of the child assessment is to be weighed in the decision-maker’s considerations when exercising power under s 24(2):
The best interests of the child is a primary consideration but it is not the only consideration that must be taken into account. A best interest of a child assessment cannot override a legal requirement set out in the Act, but the exercise of a discretionary power, such as subsection 24 (2), must take account of the best interests of the child as a primary consideration.
CPI 4 also refers to CPIs 11, 12, and 13 as relevant documents to consider when assessing children’s applications. In defining the phrase ‘best interests of the child’, Australian Citizenship Procedural Instruction 13-Best interests of the child assessments (CPI 13) draws upon the principles in the UNCRC and identifies the factors most likely to be relevant to citizenship decisions as follows:
·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;
·a 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.
CPI 13 also supplements the guidance provided in CPI 4 as to how a best interests of the child assessment is to be considered in conjunction with the other matters relevant to the exercise of discretionary power under s 24 (2). It states as follows:
Consistent with Australia’s international human rights obligations, the ‘best interests of the child’ is a primary consideration concerning children, where there is the discretion to do so. These obligations do not require that the best interests of the child be the only primary consideration, or be considered at all where there is no discretion under legislation. 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 section 34 of the Act 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. This involves a weighing of the competing interests. For example, a severe detriment to the child might outweigh a minor fraud offence by the parent, whereas if it is only marginally in the child’s best interests that citizenship not be revoked, that may be outweighed by the parent’s conviction for a serious offence.
ISSUE BEFORE THE TRIBUNAL
The key issue for determination is whether the discretion to refuse the application under s 24(2) of the Act should be exercised.
EVIDENCE
Documentary evidence
Documents from the Respondent numbering 240 pages were taken into evidence.[8]
[8] Exhibit R1.
Applicant’s evidence
The Applicant’s parents agreed that the information contained in the Applicant’s documents following his birth overseas was based on their United Nations documents and self-reported claims. The Applicant’s mother confirmed that no other identity documents were provided to the hospital prior to the issuing of the Applicant’s birth certificate.
The Tribunal has considered the evidence of the Applicant’s parents about their child’s interests. When asked about any disadvantage or significant hardship arising for the child if his application is not granted, the Applicant’s mother said it would make her ‘sad’:
I don’t know what hardship will happen to…my child but when I think about - because I also have another two children…So if the other two children got citizenship and if the oldest child doesn’t have citizenship, this will be very heartbreaking. I don’t know what hardship could happen in the future…but I feel sad to learn that the citizenship application is rejected for him and if the other two child got citizenship it will be very heartbreaking for me.
The Applicant’s mother referred to her other younger children born in Australia but was unsure if they were Australian citizens: ‘They are born in Australia and they are not under our current citizenship application. They are not included in this application, so I don’t know whether they are citizenship or not.’ The Tribunal acknowledges that both the Applicant’s parents and siblings have a right to permanently reside in Australia.
CLOSING SUBMISSIONS
Applicant
In relation to the hardship that would be endured by the Applicant if his application for citizenship was refused, the Applicant’s mother submitted in closing:
You have asked a question whether if the citizenship application for my child is rejected, will there be any hardship on him and we simply do not have anything to say because we don’t know what’s going to happen in the future for him but when we think about it again…what we can see is that we can see a sign of negative impact but when we say impact, we don’t know actually what is going to be but I think there is something wrong.
Respondent
Mr Chan submitted that, if the Tribunal was not satisfied of the Applicant’s parents’ identity, ‘then what flows from that is the Tribunal also cannot be satisfied of the child’s identity.’ That was because the Applicant’s only identity document in evidence was an overseas birth certificate, which was based upon his parents’ self-reported claims and had not been independently verified by that overseas Government.
Mr Chan submitted that the Applicant’s mother ‘wasn’t able to articulate significant hardship’ in her evidence, and that because the Applicant was ‘on a permanent visa, he would have access to things like healthcare and education and general opportunities in Australia, even without citizenship.’ Therefore, it was submitted the reviewable decision should be affirmed.
CONSIDERATION
The Applicant was born overseas and the information in his birth certificate is based on the information in his parents’ UNHCR documents, which was in turn based on their self-reported claims. The Applicant accompanied his parents to Australia a decade ago and has not departed since. The Applicant usually resides with his parents who are not Australian citizens, and they have consented to his citizenship application. The Applicant satisfies the age and permanent residency requirement at ss 21(5)(a)-(b) of the Act.
As a permanent resident, the Applicant can remain in Australia indefinitely, is protected by Australian laws, and has access to educational and other benefits. Based on his parents’ evidence, the Applicant attends school and has access to health and other services.
Notwithstanding the refusal of his parents’ citizenship applications because their identities could not be satisfactorily established, their permission to remain in Australia indefinitely remains unchanged. In the event the Applicant’s citizenship application was refused, his immigration status and rights in Australia similarly do not change, nor is there any evidence his best interests are adversely affected, or that he would suffer significant hardship, disadvantage, or detriment.
The exercise of the discretion to refuse the Applicant’s citizenship application does not infringe on his rights as a minor child as set out in the UNCRC. He can be included in a subsequent citizenship application by his parents when they are can establish their identity or apply in his own right upon reaching the age of 16.
CONCLUSION
The discretion to refuse the application under s 24(2) of the Act should be exercised.
DECISION

It follows that the reviewable decision is affirmed.

I certify that the preceding 36 (thirty-six ) paragraphs are a true copy of the written reasons for the decision herein of Senior Member A. Nikolic AM CSC

.........................[sgd]...............................................
Associate
Dated: 8 December 2021

Dates of hearing: 25 and 27 October 2021

Advocate for the Applicant: Parents

Advocate for the Respondent: Mr Alex Chan

Solicitors for the Respondent: Sparke Helmore

[2021] AATA 4563

27 October 2021

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Standing

Remedies

Dates of hearing:	25 and 27 October 2021
Advocate for the Applicant:	Parents
Advocate for the Respondent:	Mr Alex Chan
Solicitors for the Respondent:	Sparke Helmore