Khan and Minister for Immigration, Citizenship and Multicultural Affairs (Citizenship)
[2022] AATA 4386
•13 December 2022
Khan and Minister for Immigration, Citizenship and Multicultural Affairs (Citizenship) [2022] AATA 4386 (13 December 2022)
Division:GENERAL DIVISION
File Number(s): 2021/5665; 2021/5687
Re:Hasher Mosood Khan; Amal Hassan
APPLICANT
AndMinister for Immigration, Citizenship and Multicultural Affairs
RESPONDENT
Decision
Tribunal:Chris Puplick AM, Senior Member
Date:13 December 2022
Place:Sydney
In relation to Hasher Mosood Khan (2021/5665) the decision under review is affirmed.
In relation to Amal Hassan (2021/5687) the decision under review is affirmed.
......................................[sgd]..................................
Chris Puplick AM, Senior Member
Catchwords
CITIZENSHIP – application for Australian citizenship by conferral – refusal of citizenship approval – general eligibility criteria met for minor children – discretionary refusal – applicants usually resident in Australia living with non-citizen parent – whether applicants would experience significant hardship, disadvantage/detriment if citizenship refused – consideration of applicants’ best interests as children – decision affirmed
Legislation
Australian Citizenship Act 2007 (Cth) ss 21, 24
Cases
AFY18 v Minister for Home Affairs [2018] FCA 1566
Chirenda and Minister for Immigration and Border Protection [2015] AATA 64
Collector of Customs (NSW) v Brian Lawlor Automotive Pty Ltd (1979) 24 ALR 307
Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634
Elias v Commissioner of Taxation [2002] FCA 845
ER Aston and Y Aston and Secretary to the Department of Primary Industry [1985] AATA 306; (1985) 8 ALD 366
Gbojueh v Minister for Immigration and Border Protection [2014] FCA 883
Kumar and Minister for Immigration and Border Protection [2014] AATA 944
MDXJ v Secretary, Department of Social Services [2020] FCA 1767
Minister for Home Affairs v G [2019] FCAFC 79
Park and Minister for Immigration and Citizenship [2010] AATA 886
Wijewardhanage and Minister for Immigration and Border Protection (Citizenship) [2018] AATA 746
Zaidi and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Citizenship) [2022] AATA 2474
Secondary Materials
CPI 4 – Australian Citizenship by Conferral – Person under 18
CPI 12 – Assessing significant hardship, disadvantage or detriment for the purposes of Australian citizenship
CPI 13 – Best interests of the child assessments
Department of Foreign Affairs and Trade, ‘Consular Services Charter’, Consular Services (20 May 2022) < Memorandum, Australian Citizenship Bill 2005 (Cth)
Henley Passport Index: < FOR DECISION
Chris Puplick AM, Senior Member
13 December 2022
The applications
This is an application for the Tribunal to review two decisions made by a Delegate of the Minister (the Respondent) refusing the grant of citizenship by conferral to Hasher Mosood Khan and Amal Hassan (the Applicants).
The Applicants are the minor children of Mosood Hassan, a citizen of Pakistan who is not an Australian citizen, but is a permanent resident, as is the children’s mother.[1] At the moment, each of the Applicants is also a citizen of Pakistan.
[1] Tribunal documents (T-documents) (Hassan) at 22-23.
Hasher was born in April 2016 and his younger sister Amal in August 2017.
On 6 November 2020 both Applicants were granted permanent visas as dependents of their father, and they arrived in Australia on 26 December 2020.
On 8 April 2021 the Applicant’s father applied, on their behalf, for each of them to be granted Australian citizenship by conferral under the provisions of the Australian Citizenship Act 2007 (Cth) (the Act). These applications were rejected by the Minister’s Delegate on 27 July 2021 and on 16 August 2021 applications for review against those decisions were lodged in this Tribunal.
The matter was heard on 2 December 2021 with the Applicants being represented by their registered Migration Agent (Mr Harpreet Singh).
The material facts in each application are identical (save for the age of the Applicants) and so will be dealt with together, although separate decisions must be made on each.
The legislative framework
Citizenship by conferral may be granted under section 21 of the Act but may only be granted if an applicant satisfies all the requirements which are set out in subsections 21(1) to 21(8).
In respect of this application, the relevant subsection is 21(5) which provides:
(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.
However, meeting such qualifications does not necessarily confer citizenship. Subsection 24(2) further provides:
(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).
In this instance, the Tribunal must take note not only of the provisions of the Act but also the Australian Citizenship Policy Statement. This Statement was made on 27 November 2020 replacing a previous Citizenship Policy. It is augmented by a series of 33 separate Revised Citizenship Procedural Instructions (CPIs).
This application requires consideration of several CPIs, in particular, numbers 4, 12 and 13.
CPI 4 identifies five categories of applicants under the age of 18 and provides specific guidance in relation to applicants in each of those categories. The relevant category in this instance is “policy considerations for children aged 15 and under”. Details of the other categories are not necessary for exposition.
“CPI 4 – Australian Citizenship by Conferral – Person under 18[2]
[2] Emphasis added in text.
7. Policy considerations for children aged 15 years and under
In order to uphold and maintain the integrity of the citizenship program, delegates 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. This also applies 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.
The intent of these policy settings is the child (and their responsible parent/s) intend to reside, or to continue to reside, in Australia or to maintain a close and continuing association with Australia, if the application was to be approved.
As it would be difficult for a child to meet the policy guidance on maintaining a close and continuing association with Australia, residence in Australia is generally the most relevant to a child’s circumstances. Therefore, checks must be made to confirm that the child’s movement records indicate the child resides in Australia. If it appears the child is not usually resident in Australia, further information must be requested from the lodging parent that the child is or will be residing in Australia, such as evidence the Australian parent has a relevant Australian court order that the child is to live in Australia with that parent or the child is enrolled in or attending school. Applicants 15 years or under are expected to meet one of the following factors. These factors are relevant in making a decision under subsection 24(2) of the Act.…
Usually resident in Australia and living with a responsible parent, who is not an Australian citizen and who consents to the application
In this situation, the delegate must assess whether 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.
CPI 12 - Assessing significant hardship, disadvantage or detriment for the purposes of Australian citizenship
3.2. Meaning of ‘significant hardship or disadvantage’ and ‘significant hardship or detriment’
The words ‘significant’, ‘hardship’, ‘disadvantage’ and ‘detriment’ are not defined in the Act.
The Macquarie Dictionary Online provides the following definitions:
significant important; of consequence.
hardship a condition that bears hard upon one; severe toil, trial, oppression, or need; an instance of this; something hard to bear.
disadvantage absence or deprivation of advantage; any unfavourable circumstance or condition.
injury to interest, reputation, credit, profit etc.; loss; to subject to disadvantage.
detriment loss, damage or injury; a cause of loss or damage.
…
Assessing significant hardship or disadvantage/detriment
The hardship or disadvantage/detriment must be significant and of consequence to the person.
Depending on the provision being considered, applicants need to demonstrate they:
·would suffer the significant hardship or disadvantage if the period of temporary residence in Australia is not treated as a period during which the person was present in Australia as a permanent resident; (for example, it may then be very difficult or impossible - and put the person to considerable hardship - for the person to take the steps to meet the permanent residency requirement ordinarily required for obtaining Australian citizenship); or
·renounce their Australian citizenship to avoid suffering significant hardship or detriment.
…
CPI 13 - Best interests of the child assessments
3.2 Definition of ‘best interests of the child’
…The phrase ‘best interests of the child’ is not defined, but is informed, in part, by the principles in the UNCRC. The factors that are most likely to be relevant to citizenship decisions are:[3]
[3] Relevant indicia only.
…
·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;
…
·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.
3.4 Factors to take into consideration
Weighing the best interests of the child against other matters
…
Consistent with Australia’s international human rights obligations, the ‘best interests of the child’ is a primary consideration in actions 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.”
Submission of invalidity or inconsistency of CPIs
Before proceedings to consideration of the individual details of these applications, the Tribunal should address, a priori, a matter raised by the Applicant’s representative, namely the status of the CPIs.
The gravamen of the Applicant’s submission is that the CPIs are inconsistent with the Act in that they import “additional criterion that my client is required to meet” over and above those specifically set out in the legislation.[4]
[4] Applicant (Khan) Statement of Facts, Issues and Contentions (SFIC) at 3. Applicant (Hassan) SFIC at 3.
It is not necessary for the Tribunal to opine on this question as it is a matter of law, settled by the Full Federal Court in the matter of Minister for Home Affairs v G.[5] The very point raised by the Applicant was at issue, namely:
Whether a part of the Instructions (related to children under the age of 16 years seeking citizenship by conferral) was inconsistent with the Australian Citizenship Act 2097 (Cth) and therefore unlawful.
[5] [2019] FCAFC 79.
The finding of the Full Court was:
18. 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.
…
58. It is established that an executive policy relating to the exercise of a statutory discretion must be consistent with the relevant statute in the sense that: it must allow the decision‐maker to take into account relevant considerations; it must not require the decision‐maker to take into account irrelevant considerations; and it must not serve a purpose foreign to the purpose for which the discretionary power was created.
59. An executive policy will also be inconsistent with the relevant statute if it seeks to preclude consideration of relevant arguments running counter to the policy that might reasonably be advanced in particular cases: Drake (No 2) at 640. Thus, an executive policy relating to the exercise of a statutory discretion must leave the decision‐maker “free to consider the unique circumstances of each case, and no part of a lawful policy can determine in advance the decision which the [decision‐maker] will make in the circumstances of a given case”.
…
62. An executive policy that is inconsistent with the relevant statute in the sense described above is unlawful: see Drake (No 2) at 641. It is open to the Court to make a declaration to this effect, but whether it is appropriate to do so depends on an application of the general principles regarding the making of declarations, which are discussed in cases such as Forster v Jododex Australia Pty Ltd [1972] HCA 61; (1972) 127 CLR 421 at 437-438.
63. Having regard to these principles, in our respectful view, the primary judge erred in concluding that part of section 5.12.5 of the Instructions (namely, the words appearing in bold in the declaration set out at [4] above) was inconsistent with the Australian Citizenship Act and unlawful. Our reasons are as follows.
64. First, the statute confers a broad and unfettered discretion in s 24(1) to approve or refuse to approve a person who has made an application under s 21 becoming an Australian citizen. The breadth of the discretion is confirmed by s 24(2), which provides that the Minister may refuse to approve the person becoming an Australian citizen despite the person being eligible to become an Australian citizen under s 21(2), (3), (4), (5), (6) or (7). Further, the relevant eligibility category for present purposes, namely that set out in s 21(5), contains little by way of criteria. In contrast with the eligibility criteria in s 21(2), which are more detailed, s 21(5) provides that 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 at the time the person made the application and at the time of the Minister’s decision on the application.
65. The breadth of the discretion in s 24(1) is not inimical to the adoption of an executive policy, even a detailed executive policy, to guide the exercise of the discretion. To the contrary, the breadth of the discretion tends to support the view that there is no inconsistency between section 5.12.5 of the Instructions and the statute. Moreover, the adoption of a policy in such a case promotes values of consistency and rationality in decision-making, and the principle that administrative decision-makers should treat like cases alike: see Plaintiff M64 at [54].
66. Secondly, section 5.12.5 of the Instructions (or at least the part considered by the primary judge to be inconsistent with the statute) allows the decision-maker to take into account relevant considerations and does not require the decision-maker to take into account irrelevant considerations. The primary judge focussed on the reference, in the third bullet point in section 5.12.5, to the applicant suffering “significant hardship or disadvantage” if not granted citizenship. This third bullet point relates to a limited class of applications under s 21(5): children under 16 who are living with a responsible parent who is not an Australian citizen. If and to the extent that the primary judge considered “significant hardship or disadvantage” to be an irrelevant consideration (in the sense that it was impermissible for the Minister to take it into account when exercising the discretion to approve or refuse to approve an application for citizenship), we would respectfully disagree with her Honour. Neither the text of the legislation, nor the objects of the Act, suggests that the Minister cannot take this matter into account in exercising the discretion. The use of the expression “significant hardship or disadvantage” in s 22(6) should not be read as excluding consideration of this matter in the exercise of discretion under s 24(1). We would not infer that the use of the expression in one context, and its absence in the other, is explicable only on the basis that it was intended to be excluded from the latter.
67. Thirdly, section 5.12.5 of the Instructions does not serve a purpose foreign to the purpose for which the discretionary power was created. In considering this aspect, regard is to be had both to the discretion in s 24(1) to approve or refuse to approve an application for citizenship, and the relevant eligibility category, namely applicants who satisfy the criteria in s 21(5).
Given that it is not open to this Tribunal to entertain the submission that the CPIs are inconsistent with the Act, it becomes necessary to outline the extent to which they operate in the circumstances of this application.
Following from their submissions the Applicants advance an argument that to take the CPIs into consideration without some preliminary warning to applicants that this would be the case amounts to a form of procedural unfairness. This proposition must be rejected as the status of the CPIs is a matter of public record as well as public policy and it is inherent in the process of decision-making in such cases that some regard to them will be had.
It needs to be recognised, as was made clear in G that the Parliament has invested in the Executive a very wide range of discretion in such citizenship matters. This was outlined in the Explanatory Memorandum presented with the Australian Citizenship Bill 2005 (Cth) as follows:
“Proposed subsection (2) provides that the Minister may refuse to approve the person becoming an Australian citizen again despite the person being eligible to be so approved.
The purpose of this subsection is to retain the existing discretion in the old Act for the Minister not to approve an application in certain cases.
This discretion has been in existence since the inception of the Act in 1948.
It has been a uniform feature of naturalisation legislation (i.e. citizenship by conferral) throughout the Commonwealth for over a century to give the Executive a wide discretion regarding the approval or refusal of citizenship applications. This is because Australian citizenship by application is a privilege and not a right. The new Act should continue to promote this understanding.
Persons who satisfy the eligibility criteria are generally approved to become citizens. However, it is conceivable that a person could meet the criteria but nevertheless it may not be in the public interest for that person to become an Australian citizen. An example may include a person whom the Australian community would consider as a person who incites hatred or religious intolerance. That person may not necessarily have been convicted of specific offences and may not necessarily fall strictly into the category of refusal on the basis of the good character requirement, but could be within this discretion.”
Although there is no legislative definition of the “public interest” in this instance, it is clear that the CPIs represent what the Executive of the day has determined to constitute such public interest and hence reliance upon them is in no way inconsistent with any of the fundamental principles of the Act itself.
What is the OPERATIVE status of the CPIs?
The Tribunal notes that the Citizenship Policy Statement and CPIs have been published by the government as a guide to decision-makers in the interpretation of, and exercise of powers under, the Act. The role of such policy is as an indicative guide only and the Tribunal is not strictly bound to apply it. Although the Tribunal is not bound to apply it, it is government policy and the Tribunal should consider, and where appropriate apply it, if it is consistent with the Act and unless there are cogent reasons not to do so.[6]
[6] Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634at 640.
In addition, the Tribunal, standing as it does in the shoes of the original decision-maker but making a de novo assessment of the evidence,[7] may take into account any other relevant factors, including where appropriate any relevant factors or evidence which have arisen since the original decision was made and may not have been available to the original decision-maker.
[7] AFY18 v Minister for Home Affairs [2018] FCA 1566 at [9] per Charlesworth J.
As very recently stated by this Tribunal:
The CPIs are only policy guidelines, not delegated legislation.[8]
[8] Zaidi and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Citizenship) [2022] AATA 2474 at [18].
Further, in 1985, the Tribunal noted:
Policy is not law. A statement of policy is not a prescription of binding criteria. By conferring a discretion upon the decision-maker, the law requires that all matters relevant to the exercise of the discretion shall be taken into account.[9]
[9] ER Aston and Y Aston and Secretary to the Department of Primary Industry [1985] AATA 306; (1985) 8 ALD 366 at 376.
Similarly, in Gbojueh the Federal Court noted:
At both common law and under statutory judicial review a decision-maker will not commit jurisdictional error merely by having regard to a principle or policy when exercising a statutory discretion. Error, may, however, occur if the decision-maker considers him or herself bound to apply the policy without regard to countervailing considerations and acts accordingly.[10]
[10] Gbojueh v Minister for Immigration and Border Protection [2014] FCA 883 at [39].
In Elias, this principle was expressed as:
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.[11]
[11] Elias v Commissioner of Taxation [2002] FCA 845 at [34].
In relation to the former citizenship policies, the Tribunal notes that Senior Member McCabe (as he then was) observed in Kumar that:
I do not accept the Australian Citizenship Instructions[12] are useful aids to the interpretation of the statute. At best, they represent the respondent’s opinion as to the correct interpretation of the legislation. My task is to focus on the words of the statute in their context. The Act says what it says, and the words mean what they say.[13]
[12] These “Instructions” (last made on 26 February 2015) have since been replaced by the Australian Citizenship Policy Statement and Revised CPIs. The current set of Instructions are a different form of advice to decision-makers.
[13] Kumar and Minister for Immigration and Border Protection [2014] AATA 944 at [7].
More recently this matter was addressed by Besanko J as follows:
The part which a governmental policy should ordinarily play in the determinations of the Tribunal is a matter for the Tribunal to determine, in the context of the particular case, informed by considerations of the desirability of consistency of administrative decisions, but balanced against the ideal of justice in the individual case. Further, it is well-established that the Tribunal must make the correct or preferable decision in each case on the material before it and that the Tribunal is at liberty to adopt whatever policy it chooses, or no policy at all, in fulfilling its statutory. The important matter is compliance with the terms of the relevant statute.[14]
counter to the policy that might reasonably be advanced in particular cases: Drake (No 2) at 640. Thus, an executive policy relating to the exercise of a statutory discretion must leave the decision‐maker “free to consider the unique circumstances of each case, and no part of a lawful policy can determine in advance the decision which the [decision‐maker] will make in the circumstances of a given case”.
[14] MDXJ v Secretary, Department of Social Services [2020] FCA 1767 at [17]. Footnotes and citations omitted.
None of this is to say that the Tribunal is free to ignore completely the provisions or guidance of the CPIs, but rather, that in being guided by them the Tribunal must look to the broader objectives of the Act, the restrictions which it imposes (or does not impose). The clear guidance from all authorities is that each case is to be determined upon its own unique set of facts and its own particular merits.
Discussion
It is not a matter of dispute that the Applicants satisfy the requirements of subsection 21(5) of the Act. The question is whether or not the exercise of the Minister’s discretion under subsection 24(2) was the correct or preferable decision to make in these instances.
The Applicants claim that they would suffer hardship were their applications not to be granted in three specific areas:
(a)education, being their ability to apply for educational scholarships;
(b)travel, being the greater value in having an Australian passport compared with a Pakistani passport in terms of securing other visas; and
(c)security, being the extent to which being the holder of an Australian passport would be advantageous to them in terms of possibly suffering the consequences of a terrorist attack if/when they return to Pakistan.
Two of these claims are addressed specifically in CPI 12 as follows:
“The person claims they would be safer travelling as an Australian citizen.
While Australia can provide consular assistance to its citizens, the rule of law in the other country is what protects travellers in that country. In other words, in some situations even possession of Australian citizenship will not necessarily result in greater protection for an individual.
The person claims they cannot access educational opportunities until they become an Australian citizen.
For example, the person claims they will not be able to afford to pay the higher fees imposed on some non-citizens and will suffer significant hardship or disadvantage as a consequence, or they claim that they will suffer significant hardship or disadvantage if they pay the fees.
Australian citizenship is not a requirement to study in Australia at the primary, secondary or tertiary levels in Australia. Permanent residents are eligible for Commonwealth supported places in Australian universities, where available. Although eligibility for financial assistance such as the Australian Government loan scheme HECS-HELP, is limited to Australian citizens, permanent humanitarian visa holders and some New Zealand citizens, aspiring students who do not qualify for such assistance may be able to defer tertiary enrolment until after they have acquired citizenship.”
In their submissions the Applicants give specific examples of the scholarships offered at the Kincoppal – Rose Bay, School of the Sacred Heart (NSW) (Kincoppal) which are available only to Australian citizens.[15] Kincoppal claims on its website to be “the highest performing Catholic Independent Boarding School in NSW” and that may well be the case, although the Tribunal is in no position to say. What would, in the Tribunal’s opinion constitute “significant” hardship would be a situation where the lack of citizenship prevented an individual from accessing any form of education, rather than the specific form of education at the specific choice of an applicant.
[15] Attachment 1 to Khan SFIC and Hassan SFIC.
Article 28 of the Convention on the Rights of the Child (CROC)[16] speaks of the right of the child “to education” and goes on to make specific reference to compulsory and available primary education and higher education “on the basis of capacity”. There is a clear obligation on Australia to ensure access for all children to appropriate levels of education, but there is no guarantee that the individual personal choices of each student must be met.
[16] Convention on the Rights of the Child, opened for signature 20 November 1989, 1577 UNTS 3 (entered into force generally on 2 September 1990 and entered into force for Australia on 16 January 1991).
There is no evidence before the Tribunal to suggest that either of the Applicants would be denied access to an appropriate level of education absent the grant of Australian citizenship[17], nor that, even at Kincoppal, that absence would necessarily prevent their enrolment and education at that institution.
[17] Chirenda and Minister for Immigration and Border Protection [2015] AATA 64 at [40].
In relation to this matter the Respondent draws attention to the decision by this Tribunal in Park where it was said:
“I accept that Ms Park’s parents are in a very difficult financial situation. They have made considerable sacrifices in the interest of her education. However, the fact that it would be financially advantageous for her to acquire citizenship – because she would be eligible for a secondary school scholarship and would not have to pay higher university fees as an overseas student – is not very unusual or exceptional and it is not a reason to confer citizenship.”[18]
[18] Park and Minister for Immigration and Citizenship [2010] AATA 886 at [29].
In terms of international travel and access to other visas, the Tribunal accepts that an Australian passport rates highly on the 2022 Henley Passport Index[19] at number 8 compared with Pakistan at number 109 (of 112).[20] This Index is an indication of the number of other countries to which the passport holder can travel without a visa. An Australian passport gives access to 185 such destinations while a Pakistani passport facilitates movement to 32.
[19] Henley Passport Index: < Referencing 199 different passports. Japan (193 access visas) is the highest ranked at number 1 and the lowest is Afghanistan (access to 27) at number 112.
Obviously two matters arise for immediate consideration. The first is clearly that while an Australian passport is more “valuable” in the Index sense, the holder of a Pakistani passport is still able to travel to a significant number of destinations and the mere fact of having to obtain a visa rather than have visa-free entry is a mere inconvenience, it is not a “hardship”. The second issue is that of mere practicality, namely what inconvenience would be suffered by a six- or seven-year-old child (Amal and Hasher respectively) being unable to travel to more than a limited number of visa-free destinations.
The proposition that a person would be safer from terrorist assaults if they were the holder of an Australian passport is frankly, nonsensical. Australians lost their lives in the Bali bombing in 2002, or the downing of MH17 in July 2014, indeed ten Australians were killed in the Twin Towers assault of 11 September 2001. While the claim that is advanced focusses more on the availability of consular support for post-attack evacuation back to Australia, this is not necessarily well founded. The Smartraveller website hosted by the Department of Foreign Affairs and Trade indicates that in some circumstances consular assistance is available for permanent residents as well as citizens:
“We only provide consular services to Australian permanent residents in the event of a crisis overseas. This may include government-assisted evacuations when provided to Australian citizens.”
However, it equally stresses:
“Our assistance may be limited in some circumstances
You don’t have a legal right to consular assistance and you shouldn’t assume assistance will be provided.”[21]
[21] Department of Foreign Affairs and Trade, ‘Consular Services Charter’, Consular Services (20 May 2022) <>
The wisest course of action would, however, be not to travel to places where children’s lives are put at potential risk.
Convention on the Rights of the Child (CROC)
As noted above, Australia is a signatory to CROC and takes its responsibilities under this Convention seriously. The CPIs demonstrate a clear acceptance of these responsibilities and that the Convention rights must be borne in mind by decision-makers in determining applications by children. Indeed, Article 3.1 of the Convention requires that the “best interests of the child shall be a primary consideration” in any process of decision-making.
The Applicants have not advanced any claims that denial of their application for citizenship violates or compromises any of the rights to which they are entitled under CROC. The Applicants are already permanent residents and as such guaranteed access to many government services, including health and educational services and the protection of the law. Not granting citizenship would have no impact on the child’s immigration status as a permanent resident nor any of the rights attached thereto.
Holding Australian citizenship at this stage might result in some incremental advantages, but these are few and hard to identify. For example, one of the key rights of citizenship – the right to vote and participate in the choice of government – is conditional upon meeting other requirements, such as attaining the age of 18 years. The same may be said, for example, in relation to the right to marry.
There is no claim or evidence of any derogation from the rights of either Applicant based upon the provisions of the CROC in the refusal to grant them citizenship at this time.
Alternatives and other considerations
In the first place there is no limit to the number of times a person may make an application for citizenship and so, it may be that at some stage in the future each Applicant can resubmit their application. If there has been sufficient of a change in law or circumstances as to advance their cause on that occasion, so be it.
Equally, at some time before the Applicants obtain their majority, it appears that their father may be eligible to apply for citizenship, although at the moment he would not meet the general residency requirements of the Act due to his frequent absences from Australia.[22] If and when that is the case, they can be included in his application. Under such a circumstance the potential countervailing interests raised in considering a subsection 24(2) discretionary citizenship refusal would carry less or perhaps little weight.
[22] Hassan Tribunal documents at 37-40.
In the matter of Wijewardhanage the Tribunal considered issues similar to those in these proceedings but specifically drew attention to what it described as a sound public policy “to maintain an integrated citizenship status for the family and avoid creating circumstances that might encourage families to split up.”[23] Those considerations resonate with this Tribunal.
[23] Wijewardhanage and Minister for Immigration and Border Protection (Citizenship) [2018] AATA 746 at [37].
For example, while Australia and Pakistan recognise dual citizenship, a case could arise of the children in this instance travelling on Australian passports back to Pakistan, being required to separate from their parents at the airport, where separation of the holders of a national-passport and holders of a foreign-passport are not uncommon. The Tribunal does not envisage that this is what the Applicants had in mind, although the application itself references directly return flights to Pakistan, but it is conscious of the possibility of such an event which would certainly enhance the risk to the children and not be in their best interests.
That however is not part of the suite of reasons upon which this Tribunal is basing its decision.
As the Respondent concedes, “the children’s best interests could be said to marginally favour the grant of citizenship.”[24] However, this is a statement of general application. Just about any applicant’s best interests are likely to be served by a grant of something as valuable as Australian citizenship.
[24] Respondent’s SFIC at [26].
However, to make such grants to minor children, ignoring the provisions of the CPIs and on the basis of little more than asserting (undemonstrated) inconvenience together with specific claims which are generally lacking in substance, is not consonant with the Tribunal’s larger responsibility to support “standards of good government”[25] in public administration and decision-making.
[25] Collector of Customs (NSW) v Brian Lawlor Automotive Pty Ltd (1979) 24 ALR 307 at 334.
DECISIONS
In relation to Hasher Mosood Khan (2021/5665) the decision under review is affirmed.
In relation to Amal Hassan (2021/5687) the decision under review is affirmed.
I certify that the preceding 54 (fifty -four) paragraphs are a true copy of the reasons for the decision herein of Chris Puplick AM, Senior Member
.......................................[sgd].................................
Associate
Dated: 13 December 2022
Date(s) of hearing: 2 December 2022 Advocate for the Applicant: Mr H Singh, Visaedge Australia Solicitors for the Respondent: Mr Z McCaughan, Sparke Helmore Lawyers
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