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

This matter concerned an application for Australian citizenship by conferral by a person under 18 years of age. The applicant sought to join the Australian Defence Force (ADF), a process which he was advised required him to be an Australian citizen to progress beyond initial stages. The applicant also indicated that without citizenship, he would be unable to afford university study through HECS and faced significant competition for employment. The Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs was the respondent. The decision was made by the Administrative Appeals Tribunal.

The primary legal issues before the Tribunal were whether the Citizenship Instructions and associated policy, which imposed residency requirements not explicitly found in the *Citizenship Act 1948* (Cth) for persons under 18, were *ultra vires* the Act, and if not, whether the discretion under section 24(2) of the Act should be exercised to approve the applicant's citizenship application, considering the potential for significant hardship or disadvantage. The Tribunal was required to determine the weight to be given to the applicant's aspirations and circumstances in the context of the Minister's policy.

The Tribunal, bound by Federal Court authority in cases such as *Singh v Minister for Immigration and Citizenship* and *Shams v Minister for Immigration and Citizenship*, concluded that the Citizenship Instructions and policy were not *ultra vires* the *Citizenship Act*. The Tribunal found that while the applicant met the eligibility requirements of section 21(5) of the Act, the residency requirements stipulated in the policy, requiring two years of presence in Australia prior to application, were not met. In considering the exercise of discretion under section 24(2), the Tribunal noted that hardship or disadvantage was not established where alternative employment was available, desires were personal wants rather than needs, there was no financial hardship, or it was merely financially advantageous to acquire citizenship. Applying these principles and considering the applicant's circumstances, the Tribunal found that the usual policy of not approving applications for children aged between 16 and 17 should apply.

Accordingly, the Tribunal affirmed the decision under review, finding that the applicant had made his application for citizenship prematurely and that the discretion under section 24(2) of the *Citizenship Act* should not be exercised in his favour.