MILLER Applicant And MINISTER FOR IMMIGRATION & CITIZENSHIP
[2010] AATA 345
•10 May 2010
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2010] AATA 345
ADMINISTRATIVE APPEALS TRIBUNAL )
) No 2009/4620
GENERAL ADMINISTRATIVE DIVISION ) Re Verushka Miller Applicant
And
Minister for Immigration & Citizenship
Respondent
DECISION
Tribunal Ms J Redfern, Senior Member Date10 May 2010
PlaceSydney
Decision The decision under review is set aside and is substituted by a decision that Verushka Miller’s application for Australian citizenship be granted. .................[sgd]........................
Ms J Redfern, Senior Member
CATCHWORDS
CITIZENSHIP - application for Australian citizenship – adopted by Australian citizen – non Hague Convention adoption – citizenship by descent – citizenship by conferral – residence requirements in policy guidelines not met - original decision made when applicant was under 18 – consideration of full circumstances of the case – decision under review set aside – citizenship granted
Australian Citizenship Act 2007 ss16, 20, 21, 22, 24
Australian Citizenship Instructions 2007
Australian Citizenship (Transitionals and Consequentials) Act 2007; Item 5B, Schedule 3
Drake v Minister for Immigration and Ethnic Affairs (1979) 24 ALR 577 at 589; 46 FLR 419
Poehlmann v Minister for Immigration and Citizenship [2009] AATA 587
Re Hudson and Minister for Immigration and Citizenship [2009] AATA 833
Re McMullen and Minister for Immigration and Citizenship [2009] AATA 63
Re Kumar and Minister for Immigration and Citizenship [2009] AATA 124
Shi v Migration Agents Registration Authority (2008) 235 CKR 286; [2008] HCA 31
REASONS FOR DECISION
10 May 10 2010 Ms J Redfern, Senior Member
Background
1. This is an application for a review of a decision of the respondent’s delegate to refuse an application for Australian citizenship by the applicant, Verushka Miller. She was born in South Africa and moved to Australia at the age of 17 with her adoptive mother, Snezana Miller, who is an Australian citizen. Verushka applied for Australian citizenship on 15 May 2009 and turned 18 a few weeks before the hearing. She gave evidence but was represented at the hearing by her mother. The respondent was represented by Mr Leerdam of DLA Phillips Fox.
2. On 26 August 2009 the respondent, by his delegate, refused the application for Australian citizenship because Verushka Miller did not meet the residence requirements at the time of her application.
3. Verushka Miller was notified of the refusal by letter dated 26 August 2009, which was apparently not received until 22 September 2009, and on 28 September 2009 made her application for a review of the decision.
4. The facts in the case are not in dispute, but rather the application of the facts to the legislative and policy framework for Australian citizenship.
Legislative and policy framework and the issues
5. There are three possible ways that a person born overseas can become an Australian citizen under the Australian Citizenship Act 2007 (the Act). Ms Snezana Miller submits that her daughter, Verushka Miller, is entitled to be granted citizenship under two of these grounds, namely citizenship by conferral and citizenship by descent.
6. Under s 21(1) of the Act, a person may make an application to the Minister to become an Australian citizen. Subsections (2) to (8) deal with eligibility. This is referred to as citizenship by conferral.
7. Relevantly, s 21(5) of the Act provides,
A person is eligible to become an Australian citizen if the Minister is satisfied the person is aged under 18 at the time the person made the application.
8. If a person makes an application under s 21(1), the Minister must approve or refuse the application although there is no specified time limit (s 24(1)). Under s 24(2) of the Act, the Minister has discretion to refuse the application, despite the person being eligible, and the Department of Immigration and Citizenship has established policy guidelines for the exercise of this discretion, known as Australian Citizenship Instructions (ACI). The relevant ACI is the 2007 ACI as revised, an extract of which was contained in the documents produced pursuant to s 37 of the Administrative Appeals Tribunal Act 1975 ( the T documents).
9. Chapter 5 of the ACI sets out guidelines for the requirements and eligibility for becoming a citizen by conferral and includes the policy guidelines for assessing applications for persons under the age of 18 years. The guidelines provide,
The discretion in section 24(2) to refuse to approve an applicant becoming an Australian citizen despite being eligible under section 21(5) would usually be exercised where the applicant does not meet the policy guidelines. In making a decision whether to refuse or approve an application, the primary considerations that need to be taken into account are the legislative requirements, the best interests of the child and the policy guidelines set out below.
The guidelines further provide,
Best interests of the child
The best interests of the child are to be considered as one of the primary considerations when assessing the application. The consideration only applies if the child is or would be less than 18 years of age at the time of the decision on the application and the child is living in Australia.
10. The guidelines differentiate between applicants under the age of 16 years and applicants aged 16 years and over and under 18. This is relevant to submissions made by Ms Snezana Miller about the matters that should be considered by the Tribunal in determining the case.
11. Verushka Miller was born on 29 February 1992. She was 17 when she applied for Australian citizenship and at the time the respondent made the decision, just over 3 months later. The relevant guidelines for the applicant are those that apply to applicants who are aged 16 and over and under 18 years of age. These guidelines provide,
Applicants aged 16 years and over and under the age of 18 would usually be approved under s24 if they meet the following policy guidelines:
· is a permanent resident
· satisfies the residence requirements
· the applicant need not meet the residence requirements if this would cause significant hardship or disadvantage. See Attachment B – Significant hardship and disadvantage for guidance.
· Understands the nature of the application
· Possesses a basic knowledge of the English language
· Has an adequate knowledge of the responsibilities and privileges of Australian citizenship at the time of decision
· Is likely to reside or continue to reside, or maintain a close and continuing association with Australia.
12. The guidelines do not contain any express definition for when a person will “satisfy the residence requirements” for the purposes of the ACI but by implication this must refer to the residence requirements as set out under s 22 of the Act.
13. The respondent submits, and the Tribunal accepts, that as the applicant was a permanent resident before 1 July 2007 and made an application for citizenship within the period of 3 years from 1 July 2007, namely before 1 July 2010, the provisions of Item 5B of Schedule 3 to the Australian Citizenship (Transitionals and Consequentials) Act 2007 (the Transitional Act) apply for the purposes of assessing the residence requirements of the guidelines.
14. Item 5B(2) provides that a person satisfies the residence requirement if the person has been present in Australia as a permanent resident for:
(a) a total of at least 1 year in the period of 2 years before the day the person made the application; and
(b) a total of at least 2 years in the period of 5 years before that day.
15. It may also be relevant to consider the guidelines for persons under 16 years who apply to become an Australian citizen as one of the submissions made by Ms Snezana Miller on behalf of the applicant is that if Snezana had known at the time of grant of the Adoption (permanent) visa that the relevant guidelines did not impose a residence requirement for persons under 16 years of age, she would have applied or would have taken steps to ensure Verushka applied for Australian citizenship before her 16th birthday. This is a matter Ms Miller says the Tribunal should take into account.
16. The guidelines for approval for applicants under the age of 16 years relevantly provide,
Children under the age of 16 applying individually in their own right would usually be approved under section 24 if they meet the following policy guidelines:
· hold a permanent visa, including an adoption visa and
·are under 16 years of age when applying, are living with a responsible parent, who is an Australian citizen and consents to the application
17. A person may also be eligible to become an Australian citizen by adoption under the Hague Convention on Intercountry Adoption (the Hague Convention) under s 19C of the Act and by descent under section 16 of the Act.
18. In this case, it is agreed that Verushka Miller was not adopted under the Hague Convention and as such she is not eligible to apply for Australian citizenship under s19C. However, Ms Snezana Miller contends the applicant is eligible to be granted citizenship be descent under s 16(2), which provides:
Persons born outside Australia on or after 26 January 1949
(2) A person born outside Australia on or after 26 January 1949 is eligible to become an Australian citizen if:
(a) a parent of the person was an Australian citizen at the time of the birth; and
(b) if the parent was an Australian citizen under this Subdivision or Subdivision AA, or section 10B, 10C or 11 of the old Act (about citizenship by descent), at the time of the birth:
(i) the parent has been present in Australia (except as an unlawful non-citizen) for a total period of at least 2 years at any time before the person made the application; or
(ii) the person is not a national or a citizen of any country at the time the person made the application and the person has never been such a national or citizen; and
(c) if the person is aged 18 or over at the time the person made the application – the Minister is satisfied that the person is of good character at the time of the Minister’s decision on the application.
19. The Minister must approve the person becoming an Australian citizen under s17(2) if the person is eligible under s 16(2), unless there is a disqualifying factor under subsections (3) to (5). There is no wide discretion reserved to the Minister as there is for citizenship by conferral under s 21(5).
20. The issues to be considered are therefore as follows:
(a) Whether the applicant is eligible to become an Australian citizen under s 16(2) of the Act.
(b) If not, and given the applicant is otherwise eligible to become an Australian citizen under s 21(5) of the Act, how should the discretion under s 24(2) be exercised in the circumstances of the case.
21. It is common ground between the applicant and the respondent that the applicant did not meet the residence requirements of Chapter 5 of the ACI for applicants aged 16 and over and under 18 years either at the time of the application or the time of the decision. Although neither party raised this as a relevant consideration, the applicant still did not meet those requirements at the time of the hearing and could not meet them if it is accepted that the residence requirement is to be assessed as at the day before the person made the application under the terms of Item 5B of the Transitional Act.
22. At the time of the application for citizenship, the applicant had been resident in Australia for a total of 129 days in 2 years and a total of 140 days in 5 years, which is less than half the period prescribed under Item 5B.
23. However, the guidelines provide that an applicant need not meet those requirements if this would cause “significant hardship or disadvantage”. The guidelines also provide,
In the case of an applicant who does not meet the policy guidelines above, decision makers must consider the full circumstances of the case, including the best interests of the child, to determine whether the application nevertheless warrants approval because of the unusual nature of those circumstances.
24. In considering the issue raised in 20(b) the following further issues arise:
(a) Whether the applicant would suffer significant hardship or disadvantage by requiring that she meet the residence requirement under the policy;
(b) Whether the applicant should be afforded the benefit of the policy insofar as it requires the decision maker to consider the bests interest of the child, notwithstanding she was no longer under the age of 18 years at the time of the hearing by the Tribunal;
(c) Whether there are otherwise unusual circumstances that warrant approval.
25. A further issue raised by Ms Snezana Miller late in the hearing was whether the Ministerial discretion under s 22(11) is relevant for the purposes of assessing residence requirements under the guidelines.
26. As the applicant is now over 18 years, it is agreed by the parties that if the present application is not approved, the relevant provisions for eligibility would be under s 21(2) of the Act. The applicant would not be eligible to reapply for Australian citizenship until at least February 2012 as applications for citizenship after 1 July 2010 must comply with different residence requirements under s 22(1) of the Act.
27. Under those provisions, a person must be present in Australia for a period of 4 years and present as a permanent resident for a period of 12 months immediately before the day the person makes application for citizenship. If the person is absent overseas for part of the 4 years but the total period of the absence was not more than 12 months, the absence is not counted for the purposes of assessing residency.
28. In the present case, Ms Verushka Miller was in Australia for 16 days in late March/early April 2008 and returned to Australia on 20 January 2009. If she remained in Australia until late March 2012, was not absent for more than 12 months over the next year, and/or did not travel overseas for more than 3 months in the year before any application, she would be eligible to apply for citizenship from late March 2012.
The Evidence
29. Ms Snezana Miller became an Australian citizen in 1962 but moved to South Africa in about 1972, where she lived and later conducted a travel business.
30. Snezana Miller met Verushka when the applicant was 4 years old. At that time Verushka was being fostered but her living circumstances were difficult. Snezana Miller developed a close relationship with Verushka and fostered her from the age of 8, later adopting her on 8 November 2005 when Verushka was 13 years old.
31. Verushka Miller was granted a subclass 102 Adoption (permanent) visa on 21 March 2007 at the age of 15 and arrived in Australia on this visa with her mother for a short stay on 27 March 2007. Verushka and Snezana Miller returned to Australia for another short visit in late March 2008 and immigrated to Australia at the beginning of the following year.
32. Verushka Miller gave evidence that she had known Snezana Miller since she was 4 years old and had travelled extensively with her. She relied on Snezana Miller to make all the travel arrangements but noticed the impact of having different passports as she was often required to stand in a different queue from her mother when being processed by customs or immigration authorities at airports.
33. Verushka initially did not want to leave South Africa but told the Tribunal she understood she and her mother needed to move to Australia for her to become an Australian citizen. She had travelled to Australia with Snezana for short stays on a number of occasions prior to moving to Australia and made reference to the increasing difficulties with her medical treatment in South Africa.
34. Verushka had a kidney transplant when she was 3 years old and has needed ongoing treatment to monitor her condition since that time. She has been treated by Dr Yvonne Shen, from the Department of Renal Medicine, Royal North Shore Hospital, since her arrival in Australia. Verushka gave evidence that she was sick when she first arrived in Australia, which is confirmed in a report from Dr Shen dated 25 September 2009 (Exhibit 6). She is on immunity suppression medication which, according to a letter from Dr Shen dated of 3 December 2009, (Exhibit 6) are “life saving”.
35. Verushka first met her biological mother when she was 12. She has met with her a few times since then but they have not spent any time alone. They are not close and, in Verushka’s words, are very different.
36. Prior to coming to Australia, Verushka and her mother explored the potential schools available and decided on Freshwater Senior Campus on the northern beaches of Sydney. Verushka told the Tribunal she found it difficult to adjust at first but now likes the school and has made friends. She is currently in year 12 and is studying for the High School Certificate. Verushka and her mother are booked on a trip overseas after her exams finish from 21 November 2010 for several months. According to copies of electronic tickets tendered by the applicant, the Millers will be travelling to New Zealand, the United States, Canada, the United Kingdom and South Africa.
37. Verushka said she liked travelling and wanted a career in tourism and hospitality. She has been influenced by the work of her mother and is good at this subject at school. Verushka told the Tribunal that she would like to continue her studies in tourism at TAFE and had considered taking a ‘gap year’ after she left school to study tourism or undertake some volunteer work overseas. However, she wanted to become an Australian citizen and said that if she had to stay in Australia to ensure she obtained citizenship she would do so. She would like to represent Australia at the World Transplant Games and wanted to be able to vote in Australia.
38. When asked by Mr Leerdam about her previous travel, Verushka said she had obtained visas for a number of the countries referred to in the electronic ticket and agreed there had been no problems, although there had been some delays and the need to attend interviews.
39. When asked about the disadvantages about not being an Australian citizen, Verushka told the Tribunal she wanted to vote. She did not refer to any other disadvantages. This answer is not surprising as it was clear from the evidence that Snezana Miller dealt with all arrangements in relation to travel, Verushka’s application for citizenship and the appeals in relation to the initial refusal by Centrelink to pay Verushka the youth allowance and provide a health card.
40. Verushka presented as a happy and enthusiastic young woman, who is close to her mother and continues to rely on her for support and guidance.
41. Ms Snezana Miller told the Tribunal that she was a permanent resident of South Africa at the time she adopted Verushka in 2005. She was eligible to become a South African citizen at that time but she did not apply as it was her intention to move back to Australia with Verushka to start up her travel business in Australia. Snezana Miller said that she wanted Verushka to work with her in the travel business and become an Australian citizen.
42. In an email to an officer of the Department of Foreign Affairs and Trade (DFAT) in May 2005, Snezana Miller wrote,
For the past 5 years I have been fostering a 13 year old South African born girl. This year I am in the process of adopting her. Please could you advise me how I would be able to apply for citizenship for her once she has been adopted by me.
43. An officer of DFAT responded to the effect that children adopted overseas may be eligible for a grant of Australian citizenship by adoption. Ms Snezana Miller was further advised,
As from 8 May 2005 children who have been adopted overseas by Australian citizens must apply for and be granted a permanent residency visa before applying for Australian citizenship by adoption.
44. Ms Snezana Miller was also referred to links to websites for the Department of Immigration and Citizenship.
45. On 2 December 2005, Ms Snezana Miller again emailed an officer of DFAT to the following effect,
I am delighted to advise that the process of adopting my daughter is finally complete as of November 8, 2005.
I have applied for a name change with the Department of Home Affairs as well as a fully abridged birth certificate.
I now wish to apply for Australian citizenship for her based on me being an Australian citizen and understand from your previous correspondence to me that I first have to apply for permanent residency visa. I have gone to the web-site and although it is a very comprehensive site, I am not certain what the next step is for me. Could you please advise which forms I need to complete.
We live in Cape Town, however are planning to visit Australia in June/July next year.
46. The DFAT officer referred Ms Snezana Miller to the permanent residency section for advice. Ms Miller applied for an Adoption (permanent) visa for Verushka, which was granted on 21 March 2007. Snezana Miller was advised of this by letter from the Department of Immigration and Citizenship of the same date (Exhibit 13). The letter included the following,
Where a full adoption occurs and where the adoption is completed overseas an application may be made for the grant of Australian citizenship where
·at least one adoptive parent is an Australian citizen and
·the child, at the time of the citizenship application, holds and adoption visa or other permanent visa. The child is not required to be in Australia.
She was also referred to the Citizenship website and the Department Information Line.
47. Verushka Miller was 15 at the time of the grant. If Verushka Miller had applied for Australian citizenship at this time she would not have been required to meet any residence requirement under the relevant ACI and would have been likely to be granted Australian citizenship before moving to Australia. Notwithstanding there was some reference to this in the letter from the Department, Snezana Miller said she did not understand this at the time and apparently did not become aware of this until the interview with the Department of Immigration and Citizenship on 15 May 2009.
48. By email dated 15 May 2009 (at T7, pp70-71), Snezana Miller asked the Department to waive the requirement of residency. There is no correspondence in evidence about any reply by the Department other than the letter of refusal dated 26 August 2009 (at T8, pp72 – 74).
49. Snezana Miller told the Tribunal if she had known there was no residence requirement for applicants under the age of 16 years, she would have ensured an application for Australian citizenship was made for Verushka before she turned 16. Ms Snezana Miller said she felt Verushka was being unfairly disadvantaged by her own failure to understand the requirements and make a more timely application on Verushka’s behalf. She also said the Australian High Commission and/or the Department should have given her advice about this at the time she requested information.
50. Snezana Miller told the Tribunal that if her daughter’s application to be an Australian citizen was not granted she would not be able to obtain an Australian passport and this would make it more difficult for Verushka to travel. Holding a South African passport meant Verushka was required to obtain a visa to travel to certain countries; this would not be the case if she had an Australian passport. Obtaining visas was costly and there were usually delays. Verushka had not been able to accompany her on a short but urgent business trip to the United Arab Emirates in 2007 because of delays in organising a visa.
51. Travel was a way of life for her and Verushka and would be something that would continue into the future. Snezana wanted Verushka to work with her in the travel business and said it would be a “significant disadvantage” to Verushka if she did not have an Australian passport to facilitate this travel. In support of this contention, Ms Snezana Miller relied on emails to and from the Canadian, Greek and Italian Consulates and the Embassy of Bosnia and Herzegovina [at T1, pp20 to 23]. These emails confirm that Australian passport holders do not need a visa to travel to Bosnia and Herzegovina and that visas would be required for Verushka to travel to Canada, Italy and Greece.
52. Snezana Miller told the Tribunal she was worried that if something happened when they were travelling overseas, she and Verushka may be separated and would have to go to different embassies. Although Verushka was currently in good health and this had not happened in the past, Ms Snezana Miller was concerned about potential complications while travelling overseas.
53. During the course of submissions, Snezana Miller told the Tribunal that Verushka’s passport will expire in December 2010 but Verushka would have to renew the passport and would have to travel to Canberra to the South African Embassy to apply in person as she was now over 18. Ms Snezana Miller was concerned this would disrupt Verushka’s studies as she would need to apply well before their proposed departure.
54. Ms Snezana Miller has no legal training and sometimes found it difficult to differentiate between making submissions and presenting evidence of factual matters. The Tribunal would have allowed Ms Miller to reopen the case to give evidence about the passport but the respondent accepted the submission and it is not disputed Verushka will have to personally apply to renew her own passport as an adult in Canberra in the next few months.
55. Snezana Miller also told the Tribunal she believed Verushka had not been entitled to receive a youth allowance and health card because she had not been resident in Australia for two years. Snezana Miller appealed this decision and, with the involvement of the Ombudsman, Verushka received the youth allowance backdated to the date of her arrival. She also received a health card which was not backdated but was effective from around the time of the decision of the respondent.
56. There was no evidence from either party about whether or not Verushka would have been entitled to the youth allowance and health card if she had been a citizen or whether the refusal would affect her entitlement in the future. However, according to the Centrelink website for newly arrived residents (see below for link), while many benefits have a waiting period of 2 years, there are a number of exemptions for Australian citizens or the family member of an Australian citizen. Thus it appears Verushka would have been entitled to these benefits in any event even though there was some initial confusion about her entitlement.
[
57. Snezana Miller contends her daughter should be granted citizenship under s 16(2) of the Act and if this is not available, under s 21(5) of the Act. She argued the ACI has no legislative force and should not be followed. Even if it was followed, the Tribunal should take into account the “significant hardship or disadvantage” Verushka would face as she would not be entitled to apply for Australian citizenship until March 2012. There would be difficulties for her with overseas travel and Verushka may be prejudiced in not being able to vote, represent Australia in the Transplant Games if she wished, study overseas or obtain the assistance of the Australian embassy if there was trouble overseas when she was travelling with her mother. She was also concerned about the prospect they could be separated if there were problems because of their different passports.
58. Snezana Miller contends the Tribunal should take into account that at the time of the decision of the respondent her daughter was under 18 and under the ACI the best interests of the child should be the primary consideration. The Tribunal should also take into account the financial hardship suffered by the family because Verushka did not receive the youth allowance and health card until around August/ September 2009.
59. Finally, Snezana Miller says the Tribunal should take into account that she had made it known to she wanted to apply for Australian citizenship for Verushka in 2005. If she had been made aware there was no residence requirement at the time of her initial enquiries, she would have applied before Verushka turned 16 while they were living in South Africa and under the more favourable guidelines, Verushka’s application would have been approved. She also says the Tribunal should take into account the Minister’s discretion under s 22(11) of the Act when assessing the residence requirement, which relates to applicants who are in an “interdependent relationship” with an Australian citizen.
60. The respondent contends s 16(2) does not apply because the parent of the person applying for citizenship must be the parent of the person at the time of the birth as well as an Australian citizen. The respondent also submits that ‘parent’ means biological parent. Both interpretations would produce a similar result.
61. The respondent further contends that, while Verushka Miller is eligible for Australian citizenship under s 21(5) of the Act, she does not meet the residence requirements established by the ACI and the Tribunal should follow those guidelines. The respondent concedes there are certain advantages for those who hold Australian passports over South African passports because holders of Australian passports do not require visas for short stays when travelling to many developed countries. However, there is no evidence Verushka would be unable to obtain visas to travel to other countries (and in fact there was evidence to the contrary) and inconvenience or additional expense was insufficient to ground a claim of “significant hardship or disadvantage”.
62. The respondent says there is no concrete evidence of prejudice and any issues in relation to Centrelink benefits were resolved well before the hearing. The Tribunal should make a prospective assessment of the issue. The ability to vote and to have access to the Australian Embassy overseas were benefits of being an Australian citizen but the failure to obtain these benefits is not sufficient to warrant approval. There was a South African Embassy available to Verushka if the need arose and she would be eligible to apply again for citizenship in March 2012.
63. The respondent also submitted the Tribunal should not take into account the best interests of the child as a primary consideration as Verushka Miler was 18 at the time of the hearing. There is no temporal limit in the Act as to when the policy should be applied and the Tribunal should apply the policy at the time of the hearing not at the time of the decision of the respondent. This is not a case where the circumstances are unusual and warrant approval of the application.
Consideration
64. The interpretation of s 16(2)(a) of the Act has been considered in three recent Tribunal cases with different results. Each case has focussed on the meaning of “parent”.
65. When considering the meaning of “parent of the person” in s 16(2)(a), In Re Kumar and Minister for Immigration and Citizenship [2009] AATA 124, at 31, DP Forgie stated,
Although it may be regarded as obvious, I want to make it explicit that I understand the word “parent” to mean those who are the biological parents of the child.
66. In Re McMullen and Minister for Immigration and Citizenship [2009] AATA 638 [at 23] DP Mc Donald rejected the argument that “such a narrow contextual approach should be taken”. On the other hand, DP Handley in Re Hudson and Minister for Immigration and Citizenship [2009] AATA 833 took the opposite view.
67. The meaning of s 16(2)(a) is not clear. The respondent contends that the “a parent of the person” means the parent at the time of the birth of the person applying for citizenship. It is difficult to consider any circumstance where this would be the case other than when the Australian citizen is the biological, or possible surrogate, parent of the child.
68. I do not accept this submission. On an ordinary reading of the section, the reference to “a parent of the person” is a reference to the status of the relationship at the time of the application and the relevant temporal connection with the birth of the applicant is that the “parent” must be an Australian citizen at that time.
69. While the respondent did not raise this argument, it is difficult to understand why a person would have to be an Australian citizen at the time of birth of the applicant unless it was also intended there be some connection with parentage. In other words, the logic behind the construction contended by the respondent is sound but the construction is strained. To give meaning to s 16(2)(a) it may be more relevant to consider what “parent” means in this context.
70. As observed in both McMullen and Hudson there is no definition of “parent” in the Act and its meaning is ambiguous. In these circumstances, it is relevant to consider the heading of Subdivision A, Part 2 of the Act, which is “Citizenship by descent”. DP Handley undertook an analysis of the section and the definition of “descent”, which will not be repeated but accords with my view. I agree with the conclusion of DP Handley in Hudson at [32], as follows,
In conclusion, in my view, which accords with that of DP Forgie in Kumar, is that the word “parent” in s 16(2)(a) means biological parent. This is consistent with the use of the word “descent” in the heading to Subdivision A of the 2007 Act, the relevant dictionary meanings accorded to the word descent, and with the structure and context of the 2007 Act, including, for example, how provisions affecting adopted children are set out.
71. As such, Verushka is not eligible for Australian citizenship under s 16(2) (a) as Snezana Miller is not her biological mother and there is no evidence to suggest that her biological mother was an Australian citizen at the time of her birth.
72. The question therefore arises as to whether Verushka Miller should be granted Australian citizenship by conferral. She is eligible to become a citizen under s 21(5) of the Act but the respondent has a wide discretion under s 24(2). As already observed, the delegate of the respondent refused Verushka’s application on the basis she did not meet the residence requirement set out in the ACI. There are five other criteria, including permanent residency, which the respondent concedes Verushka satisfies.
73. Ms Snezana Miler says the Tribunal should not follow these guidelines as they have no legislative force and the strict application of the residence requirement operates unfairly against her daughter. The respondent disagrees and says the respondent has discretion to grant or refuse the application and the ACI provides appropriate guidelines for the exercise of this discretion which should be followed by the Tribunal.
74. The guidelines provide an ‘exemption’ from meeting the residence requirement to militate against “significant hardship or disadvantage”. They also contemplate approval, notwithstanding an applicant does not meet all policy requirements, where “the unusual nature” of the circumstances of a case warrant approval. Indeed much of the hearing focused on the application of these issues to the facts of the case.
75. The applicant has not otherwise challenged the ACI as being contrary to law and I accept the respondent’s submissions that the guidelines in the ACI are matters the Tribunal should consider when reviewing the decision of the delegate of the respondent unless there is good reason not to do so: Drake v Minister for Immigration and Ethnic Affairs (1979) 24 ALR 577 at 589; 46 FLR 419.
76. Ms Snezana Miller’s primary submission was that Verushka should not be required to meet the residence requirement of the ACI as this would cause “significant hardship or disadvantage”. Verushka would not be entitled to apply for Australian citizenship for 2 years and this could cause problems. The particular disadvantages identified by Ms Snezana Miller were:
(a) Verushka would not be entitled to obtain an Australian passport and this would cause significant hardship or disadvantage because travel was likely to be an important part of Verushka’s life over those next 2 years. Verushka would have to apply for visas to travel to many countries she and Snezana Miller were proposing to visit over the next 2 years. This would be costly and cause delays.
(b) Verushka would have to travel to Canberra to personally apply for the renewal of her passport well before her anticipated travel in November 2010 and this would disrupt her studies and trial exams for the High School Certificate.
(c) Verushka would not get the benefit of using the Australian Embassy when they were travelling and if there were problems, they may be separated.
(d) Verushka had would not be able to vote at the next elections and would not have the opportunity to represent Australia in the World Transplant Games.
77. Ms Snezana Miller also raised concerns about Verushka’s medical condition and the availability of Centrelink and health benefits.
78. There was no evidence that Verushka would suffer any disadvantage in relation to Centrelink and health benefits. In fact there was evidence Verushka was receiving those benefits and that this would continue. The respondent submitted, and the Tribunal accepts, that the assessment of whether applying the residence requirement “would cause significant hardship or disadvantage” should be prospective. On the evidence before the Tribunal, the availability of Centrelink and health benefits is no longer an issue.
79. The respondent says these other matters raised are inconvenient but are not matters that “would cause significant hardship or disadvantage” to Verushka Miller within the terms of the guidance provided in Attachment B to the ACI. Attachment B provides guidance as to when an applicant will not be required to meet the residence requirements of the policy and refers to the definitions in the Macquarie Concise Dictionary and the Collins Concise Dictionary, Australian Edition as follows:
Significant of consequence;
Hardship important or momentous
Conditions of life difficult to endure;
Disadvantage something that causes suffering or privation
an unfavourable circumstance, thing, person;
injury, loss or detriment
80. Attachment B also cites examples of circumstances which an applicant “would normally be required to demonstrate”, such as “inability to gain employment” or “difficulty of international travel” because the applicant cannot obtain a passport or is unable to use that passport for “safety or similar reasons”. None of the examples listed apply in this case.
81. However, both Attachment B and the ACI recognise the policy should not be applied inflexibly and, in particular, the decision maker must “consider the full circumstances of the case”.
82. The respondent says that when the Tribunal considers those circumstances it should not take into account the “best interest of the child” as a primary consideration, or at all, because Verushka is now 18.
83. Consistent with the High Court decision in Shi v Migration Agents Registration Authority (2008) 235 CKR 286; [2008] HCA 31, the Tribunal may take into account all information available at the time of the hearing in coming to the correct or preferable decision. In the present case, this includes information about the Centrelink benefits (conferred and, in the case of the youth allowance, also back-dated, after the decision of the delegate), evidence of the proposed overseas travel after Verushka’s exams (booked in March 2010) and the fact Verushka turned 18 just before the hearing.
84. Having considered the full circumstances of the case and all information available at the hearing, I have formed the view that even though Verushka Miller did not meet the residence requirements at the time of her application, her application for Australian citizenship should nevertheless be approved because of the unusual circumstances of her case.
85. Ms Snezana Miller is an Australian citizen and although she lived in South Africa for over 30 years, she has maintained her connection with Australia and returned to live in Australia with her adopted daughter in January 2009. Verushka has known Ms Snezana Miller for about 14 years and has been in her sole care since the age of 8. There is a close relationship between Verushka and Snezana Miller and Verushka relies on her mother for support and guidance.
86. From about the time she adopted Verushka, Snezana Miller expressed an intention for Verushka to become an Australian citizen. She sought advice about this from the Australian High Commission in Pretoria but did not understand Verushka could have become an Australian citizen after she obtained her Adoption (permanent) visa without the need to reside in Australia - provided the application was made before Verushka turned 16. While Ms Snezana Miller appears to attribute fault to the Australian High Commission and/ or the Department, the error was hers as she was referred to the appropriate information. She could have undertaken more research and concedes that any disadvantage to Verushka has been caused, albeit unintentionally, by her delay.
87. Regardless of the cause for the error, this is a circumstance which is likely to cause disadvantage and uncertainty for Verushka Miller in the future, or at least over the next 2 years. When Verushka moved to Australia with her mother in 2009, it is likely she would already have been an Australian citizen and would have been entitled to obtain an Australian passport at that time. Now she will have to wait until at least March 2012 and will not be able to travel out of Australia for more than 3 months in the year before any new application.
88. The disruption and disadvantage of not having an Australian passport are exacerbated for Verushka because of the planned travel at the end of the year, her impending exams but, more particularly, because Verushka and her mother are frequent travellers. Snezana Miller is a travel agent and is trying to establish and operate a travel business from Australia. Verushka has no other relatives in Australia and the evidence of both proceeded on the assumption Verushka would always accompany Snezana, at least in the immediate future and over the next 2 years. While there is no evidence to suggest the cost and delay in obtaining the visas would be so prohibitive as to prevent travel, there was evidence Verushka was not able to accompany her mother on an urgent short business trip in 2007 because of difficulties in obtaining a visa.
89. Snezana Miller has raised a concern that Verushka may not get the same benefits as her or, worse, may be separated from her if there is trouble when they are travelling overseas or a medical emergency. Ms Snezana Miller says that the best interests of Verushka as a child should be considered and it would be in her best interests to be an Australian citizen and have the same citizenship as Snezana. There is no evidence about the different benefits available between South Africa and Australia, or whether Verushka will be disadvantaged in her medical treatment. The Tribunal accepts Verushka is now 18 and should be treated as an adult but also accepts that, given the circumstances of this case including Verushka’s medical condition, her youth and her apparent reliance on her mother, this would be a legitimate concern for both Snezana and Verushka Miller. Verushka did not refer to this concern when asked about the benefits of being an Australian citizen but was not specifically questioned about the issue. However, it is clear from the evidence of Snezana Miller that this is a significant consideration for her.
90. Verushka meets all other policy requirements and even though she did not satisfy the residence requirement at the time of her application, her period of continuous residence in Australia is substantial. She has now resided in Australia for over 15 months and will complete her senior schooling at the end of the year, by which time her period of residence will be nearly 2 years.
91. In my view, the combination of these matters is sufficiently unusual in this case to warrant approval of Verushka Miller’s application for citizenship by conferral.
92. There is no need to determine the question of whether the Tribunal should take into account the Minister’s discretion under s 22(11) of the Act when assessing the residence requirement, except to observe that the “interdependent relationship” referred to in the subsection does not appear to contemplate the parent-child relationship: Poehlmann v Minister for Immigration and Citizenship [2009] AATA 587.
Decision
93. For these reasons, the decision under review is set aside and is substituted with a decision that Verushka Miller’s application for Australian citizenship be granted.
I certify that the 94 preceding paragraphs are a true copy of the reasons for the decision herein of Ms J Redfern, Senior Member
Signed: .....................................................................................
AssociateDates of Hearing 18 March 2010 and 21 April 2010
Date of Decision 10 May 2010
Representative for the Applicant S Miller
Solicitor for the Respondent DLA Phillips Fox
1
8
0