Mohebi and Minister for Home Affairs (Citizenship)

Mohebi and Minister for Home Affairs (Citizenship) [2019] AATA 4098 (8 October 2019)
Division:GENERAL DIVISION
File Numbers: 2018/4149
2018/4148
2018/4152
2018/4155

Re:Mrs Nafisa Mohebi
Mr Noorulla Mohebi
Mr Hamidullah Mohebi
Mr Haseebullah Mohebi
APPLICANT

AndMinister for Home Affairs
RESPONDENT

Decision
Tribunal:Ms Anna Burke AO, Member 
Date:8 October 2019
Place:Melbourne

1. The Tribunal affirms the decision of the Minister dated 18 June 2018 refusing Mrs Mohebi’s application for Australian citizenship by conferral.

2. The Tribunal sets aside the decision of the Delegate dated 29 May 2018 refusing Hamidulla, Noorullah, and Haseebullah Mohebi’s applications for Australian citizenship by conferral; and remits the matter to the Minister for reconsideration in accordance with a Direction from the Tribunal, pursuant to s 43(1)(c)(ii) of the Administrative Appeals Tribunal Act 1975 (Cth) for consideration individually in their own right as at the date of application.

......................[sgd]..................................................
Ms Anna Burke AO, Member
Catchwords
CITIZENSHIP – refusal of approval for Australian citizenship by conferral – citizenship test exemption – whether applicant suffers from a permanent or enduring mental incapacity at the time of application – medical evidence considered – consideration for children under the age of 16 applying in their own right - best interest of the child – decision 2018/4149 under review affirmed and decisions 2018/4148, 4152, 4155 remitted secondary consideration
Legislation
Administrative Appeals Tribunal Act 1975 (Cth)
Australian Citizenship Act 2007 (Cth)
Cases
Aston and Secretary, Department of Primary Industry, Re (1985) 8 ALD 366
Drake and Minister for Immigration and Ethnic Affairs (No 2), Re (1979) 2 ALD 634
Khodeir and Minister for Immigration and Border Protection [2015] AATA 499
Secondary Materials
Australian citizenship instructions (ACI)
Department of Immigration and Border Protection, Citizenship Policy (1 June 2016)
REASONS FOR DECISION
Ms Anna Burke AO, Member
INTRODUCTION and BackGround

1. Mrs Nafisa Mohebi, aged 47, and her three sons Hamidulla aged 19, Noorullah aged 17 and Haseebullah aged 12 are Afghan citizen (the Applicants). They all arrived in Australia on 2 July 2008 on a Permanent Global Special Humanitarian visa (subclass 202). At the time of application Mrs Mohebi held a Permanent Five Year Resident Return visa (subclass 155).
2. On 29 October 2014, Mrs Mohebi lodged an application for Australian citizenship by conferral under s 21 of the Australian Citizenship Act 2007 (Cth) (the Act). Mrs Mohebi included four of her eight children on her citizenship application: Palwasha, Noorullah, Hamidulla and Haseebullah.
3. On 10 April 2015, 16 June 2015, 12 October 2015, 4 November 2015 and 2 May 2018 Mrs Mohebi sat and failed the approved citizenship test.
4. On 18 June 2018, a delegate of the Minister for Home Affairs ('the Respondent') refused Mrs Mohebi’s application for citizenship as she did not meet the criteria under ss 21(2)(d),(e) and (f) of the Act ('the Reviewable Decision') as she had not successfully completed an approved test.
5. On 29 May 2018, a delegate of the Respondent refused Noorullah, Hamidulla and Haseebullah Mohebi’s applications for citizenship in accordance with the Citizenship Policy. They were notified of the decision by a letter dated 18 June 2018. The delegate noted that they were not living with a responsible parent, who is an Australian citizen and who consents to the application. Additionally, the delegate considered article 3.1 of the Convention of the Right of the Child, considering the best interest of the child in making their determination. The delegate stated:
Your child is currently a permanent resident of Australia. They therefore have permission to stay in Australia indefinitely and have appropriate access to education, health and social welfare services, and when in Australia, are covered by the same laws as Australian citizens. It is these laws that provide your child with protection from physical or mental violence, injury or abuse, neglect or negligent treatment, maltreatment or exploitation, including sexual abuse. It is also these laws that provide your child the right of freedom of religion, the right to an identity and protection from the illicit transfer and non-return from abroad. A decision to refuse to approve your child becoming an Australian citizen by conferral would not change their immigration status in Australia and therefore would not deny them the protection and rights provided by Australian law whilst present in Australia. I am also satisfied a decision to refuse your child Australian citizenship will not separate you from your child. Therefore, I am satisfied that such a decision would not be against your child’s best interest.
6. On 23 July 2018, Mrs Mohebi and Noorullah, Hamidulla and Haseebullah Mohebi all applied to the General Division of the Administrative Appeals Tribunal ('the Tribunal') for review of the Reviewable Decisions.
7. At the hearing Mrs Mohebi appeared in person and was self-represented. Mr Christopher Orchard, of Sparke Helmore, appeared on behalf of the Respondent. Mrs Mohebi and her daughter Ms Palwasha Mohebi gave evidence under oath. The Tribunal was assisted by an interpreter in the Dari (Afghani) language.
ISSUE FOR THE TRIBUNAL
8. The issue for the Tribunal is whether the applicant satisfies s 21(3)(d) of the Act, that is, did she have a permanent or enduring mental incapacity at the time she made her application for citizenship?
LEGISLATIVE AND POLICY BACKGROUND
9.        Section 21(2) of the Act sets out the general eligibility criteria for a person to become an Australian citizen:
A person is eligible to become an Australian citizen if the Minister is satisfied that the person:
(a) is aged 18 or over 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; and
(c) satisfies the general residence requirement (see section 22) or   the special residence requirement (see section 22A or 22B), or satisfies the defence service requirement (see section 23), at the time the person made the application; and
(d) understands the nature of an application under subsection (1); and
(e) possesses a basic knowledge of the English language; and
(f) has an adequate knowledge of Australia and of the responsibilities and privileges of Australian citizenship; and
(g) is likely to reside, or to continue to reside, in Australia or to maintain a close and continuing association with Australia if the application were to be approved; and
(h) is of good character at the time of the Minister's decision on the application.
10. Section 21(2A) of the Act sets out the citizen test criteria:
Paragraphs (2)(d), (e) and (f) are taken to be satisfied if and only if the Minister is satisfied that the following apply:
(a) the person has sat a test approved in a determination under section 23A;
(b) the person was eligible to sit that test (worked out in accordance with that determination);
(c) the person started that test within the period worked out in accordance with that determination and completed that test within the period (the relevant test period ) worked out in accordance with that determination;
(d) the person successfully completed that test (worked out in accordance with that determination) within the relevant test period.
11. Section 21(3) of the Act defines permanent or enduring physical or mental incapacity:
(3) A person is eligible to become an Australian citizen if the Minister is satisfied that the person:
(a) is aged 18 or over 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; and
(c) satisfies the general residence requirement (see section 22) or the special residence requirement (see section 22A or 22B), or satisfies the defence service requirement (see section 23), at the time the person made the application; and
(d) has a permanent or enduring physical or mental incapacity, at the time the person made the application, that means the person:
(i) is not capable of understanding the nature of the application at that time; or
(ii) is not capable of demonstrating a basic knowledge of the English language at that time; or
(iii) is not capable of demonstrating an adequate knowledge of Australia and of the responsibilities and privileges of Australian citizenship at that time; and
(e) is likely to reside, or to continue to reside, in Australia or to maintain a close and continuing association with Australia if the application were to be approved; and
(f) is of good character at the time of the Minister's decision on the application.
(e) is likely to reside, or to continue to reside, in Australia or to maintain a close and continuing association with Australia if the application were to be approved; and
(f) is of good character at the time of the Minister's decision on the application.
12. Section 21(5) defines eligibility for 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.
13. Section 24 of the Act provides, in part:
Minister's decision
(1) If a person makes an application under section 21, the Minister must, by writing, approve or refuse to approve the person becoming an Australian citizen.
Note: The Minister may cancel an approval: see section 25.
(1A) The Minister must not approve the person becoming an Australian citizen unless the person is eligible to become an Australian citizen under subsection 21(2), (3), (4), (5), (6), (7) or (8).
(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).
(2A) If the Minister exercised the power under subsection 22A(1A) or 22B(1A) in relation to the person, the decision under subsection (1) of this section must be made by the Minister personally.
Identity
(3) The Minister must not approve the person becoming an Australian citizen unless the Minister is satisfied of the identity of the person
14. Section 46 (2A) of the Act sets out the application requirements for children under 16
Children aged under 16
(2A) An application under a provision of this Act by a child aged under 16 must be set out:
(a) on a form that contains no other application; or
(b) on a form that also contains an application by 1 responsible parent of the child.
The Citizenship Policy
15. The role of the Citizenship Policy is to provide guidance on the interpretation of the Act. The Tribunal is not bound to strictly apply the Citizenship Policy, as it is not law. As the Tribunal stated in Re Aston and Secretary, Department of Primary Industry (1985) 8 ALD 366 at [21]: Policy is not law. A statement of policy is not a prescription of binding criteria.
16. However, policy should be given due and proper consideration and weight unless there are cogent reasons not to do so: Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634 at [645] per Brennan J.
17.      In relation to s 21(3), the Citizenship Policy states:
For applications received on or after 9 November 2009 for consideration under s 21(3) applicants must produce evidence, from a qualified medical practitioner, of a permanent or enduring physical or mental incapacity that means the person is not capable of:
•         understanding the nature of their application
•         demonstrating a basic knowledge of the English language or
•         demonstrating an adequate knowledge of Australia and of the responsibilities and privileges of Australian citizenship at that time.
…
To qualify, incapacity must be either permanent, or sufficiently long-term as to be enduring. An enduring incapacity is one for which there cannot be a predicted recovery, or where if there is, it is long-term and it would be unreasonable to expect the person to recover before becoming eligible for Australian citizenship. Examples may include a person suffering from long-term depression, post-traumatic stress disorder, or where a person has suffered a stroke.
A temporary physical or mental condition does not meet the requirement.
...
Applicants claiming permanent or enduring physical incapacity must provide evidence from a specialist in the field they are claiming the incapacity, following referral from their General Practitioner.
...
Applicants claiming permanent or enduring mental incapacity may provide evidence from a:
•         psychiatrist who is a fellow of the Royal Australian and New Zealand College of Psychiatrists or
•         medical practitioner who is a fellow of the Australian Society of Psychological Medicine or
•         psychologist who is registered with the Psychology Board of Australia, has a practice endorsement in an area relevant to the problem, and is registered with Medicare for these purposes. Examples of psychologists who are likely to have a relevant area of practice endorsement are clinical psychologists, forensic psychologists and clinical neuropsychologists.
...
It is anticipated that people claiming a permanent or enduring physical or mental incapacity will have been seeing a specialist on a regular basis.
18.      In relation to children under 16 applying on the same form and at the same time as a responsible parent, the Citizenship Policy states:
Children under 16 applying on the same form and at the same time as a responsible parent would usually not be approved under s24 unless they are permanent residents at the time of application and decision and also:
•         be living in Australia with the relevant responsible parent and
•         the relevant responsible parent consents to the inclusion of the child in their application.
…
Note: decision-makers must make a separate decision record for each applicant included on the application if the application is to be refused
Note: if the child under 16 applies on the same form at the same time as a responsible parent, and the parent is refuse, the child must be assessed in their own right
19.      In relation to children under 16 applying individually the Citizenship Policy states:
Children under 16 applying individually in their own right would usually not be approved under s24 unless they are permanent residents at the time of application and decisions and under policy also are:
•         under 16 when applying and living with a responsible parent who is an Australian citizen and who consents the application or
•         usually resident in Australia with a permanent resident responsible parent who consents to the application, and that responsible parent would meet the residency requirements but has decided not to apply for Australian citizenship because they would lose the citizenship of another country or
•         under 16 when applying, living with a responsible parent who is not Australian citizen and consents the application, and the child would otherwise suffer significant hardship or disadvantage
Evidence
20. The evidence before the Tribunal included documents provided pursuant to s 37 of the Administrative Appeals Tribunal Act 1975, referred to as the “T documents” and medical reports for Mrs Mohebi.
21. On 12 April 2018, Dr Feriba Kavianpour, clinical psychologist, provided a report as Mrs Mohebi’s treating psychologist requesting consideration for an exemption from the citizenship test. In the report he opined:
Ms Mohebi has been receiving ongoing treatment with me at Dandenong West Medical Centre. Her mental health issues have occurred in the context of her past traumatic experiences. She is suffering from a major depressive disorder and anxiety. She presents with continuously low mood, anhedonia, poor motivation and energy and feelings of hopelessness and helplessness. She suffers from poor sleep that leads to severe headaches. Her memory and concentration are highly compromised as a result of her depressive illness. She is unable to remember things as simple as the day of the week, her birthday and her children’s age. Her poor memory affects her ability to learn new materials. Learning new materials has been particularly a challenge given that she is very limited in her English literacy. As such, she is not capable of demonstrating basic knowledge of the English language. Ms Mohebi has attempted and failed the citizenship test a few times and has attended the citizenship class. She has another upcoming citizenship test. However, given the level of her problem with remembering things, she will not succeed test. She fails to remember much simpler things let alone the test materials.
22. On 11 February 2019, Dr Ash Takyar, consultant psychiatrist, provided a report based on a once off psychiatric assessment of Mrs Mohebi for the purpose of her citizenship claim at the request of the respondent, in it he made the following summary and opined:
Ms Nafisa Mohebi is a 47-year-old mother of eight who is not employed. She has been living in Australia since around 2008 and was raised in Afghanistan. She lived for periods of time in Pakistan. It was very difficult to get a clear history from her due to significant memory difficulties through large sections of the history, despite the presence of a Dari interpreter. While I was able to establish that she currently meets criteria for symptoms consistent with a DSM-5 major depressive disorder and comorbid generalised anxiety disorder, and I was able to establish that she has probably had these symptoms for at least part of 2018, when she was referred to a psychologist for a single session and her antidepressant was begun and gradually increased in dose (she is on a moderately high dose of mirtazapine 45 mg now), it was more difficult to get a sense of whether there were any prior psychiatric symptoms or episodes of psychiatric illness. Certainly the general practice medical entries did not contain any reference in prior years to psychiatric presentations, nor were there any apparent referrals for treatment with a psychologist or psychiatrist, or commencement of psychotropics. Additionally, whilst she did report that her schooling was disrupted by an event that occurred when the Mujahedeen had entered her school; she denied that there had been any traumatic exposure to maiming or death at that time. She did report on the loss of a number of male relatives over time when she lived in Kabul with her husband.
23. Additionally, in the report, Dr Takyar outlined Mrs Mohebi’s current condition, observing that she “does appear objectively depressed”, she requires ongoing medical treatment for her condition, her mental health condition is likely to affect her cognition and her condition is probably permanent and enduring. He stated:
I believe she has a current permanent and enduring incapacity which means she is not capable of demonstrating a basic knowledge of English language - she relied essentially exclusively on the interpreter during the review. I believe that her psychiatric condition and its cognitive effects would affect her ability to learn and retain information for the citizenship test and that this has been evident in the past failed attempts at the test.
24.      Mrs Mohebi advised the Tribunal that fundamentally she did not know anything, could not remember anything and she may have been healthy when she arrived in Australia in 2008 but now she didn’t recognise herself. She also advised that she had been going to see doctors frequently since she arrived in Australia but that she could not advise the Tribunal if she had been diagnosed with any physical or mental illness.
Mrs Mohebi’s daughter, Palwasha, gave evidence at the Hearing, she advised that Mrs Mahebi:
•        attended school to approximately grade 4 but when the Taliban came to Afghanistan her education ceased and even now does not read or write in any language;
•        attended English language classes and was still trying to learn the language but without any success;
•        can copy down words but she simply doesn’t understand what she is reading;
•        cannot remember the simplest things, struggles to look after the family and is now the primary care for her husband, as he is now incapacitated following an accident;
•        was finding it difficult being away from her family in Afghanistan, her mother’s father had died about four years ago and her mother’s mother is getting older; and
•        desperately wishes to return to Afghanistan to see her mother again but is terrified that if she travels to Afghanistan on her Afghani passport shall not be able to return to Australia.

25.      Palwasha also advised the Tribunal that:
•        the family had noticed a significant decline in her mother’s well-being since her last trip to Afghanistan; and
•        Afghanis do not think of mental illness as a big thing and it would not be a reason that they would go and seek medical help.
Consideration
Mrs Mohebi
26. Ms Palwasha Mohebi, on behalf of her mother, indicated that Mrs Mohebi was suffering considerable stress and anxiety at her inability to gain Australian citizenship and that her father had become an Australian citizen sometime in 2008, prior to the extended families’ arrival in Australia. Whilst it may appear obvious the Tribunal noted Ms Mohebi’s father, Mr Sameullah Mohebi, was also the father of Hamidulla, Noorullah and Haseebullah. She also indicated that her mother had a great desire to return to Afghanistan and the family believed this would assist her mother’s mental health condition, as she ruminates on this considerably. Palwasha could not provide medical records indicating that her mother had sought treatment for depression prior to 2018 but said her mother had been unwell for many years and argued that granting her an exemption to sitting the citizenship test would be a benefit to her mother’s health and well-being.
27. Mr Orchard contended that there was no dispute that Mrs Mohebi had sat and failed the citizenship test on numerous occasions, the question before the Tribunal was whether Mrs Mohebi had a permanent incapacity at the time of her application for citizenship in 2014 which would exempt her from the requirement under the Act to sit and pass the citizenship test.
28. Mr Orchard contended that Mrs Mohebi was not diagnosed with any mental health condition at the time of her application 2014 and that she had not reported any mental health issues or sought any medical treatment until 2018 some ten years after she arrived in Australia and some four years after she applied to become a citizen. He further noted that when Mrs Mohebi applied for citizenship by conferral she did not raise any special concerns or considerations for the delegate to consider when assessing her application. The respondent contended that therefore the Tribunal could not, based on the evidence before it, be satisfied that at the time of her application she had a permanent incapacity that meant she was not capable of satisfying citizenship test.
29. The Tribunal observes the current Citizenship Policy which states that successful completion of the citizenship test is an integral requirement for the consideration of granting of citizenship. The test is designed to establish that an applicant understands the rights and responsibilities of citizenship and the nature of their application. It also establishes a basic requirement in regard to competency in the English language.
30. The operation and effect of s 21 was outlined by Senior Member Taylor SC in Khodeir and Minister for Immigration and Border Protection [2015] AATA 499:
Ordinarily a person’s eligibility for Australian citizenship depends on satisfaction that they meet each of the eight cumulative criteria set out in s 21(2) of the Australian Citizenship Act 2007... I paraphrase those three matters as
(a) AWARENESS: — understanding the nature of the citizenship application: - ACA 2007 s21(2)(d)
(b) ENGLISH: — possessing a basic knowledge of the English language; - ACA 2007 s21(2)(e)
(c) KNOWLEDGE: — having an adequate knowledge of Australia and of the responsibility and privileges of Australian citizenship: - - ACA 2007 s21(2)(f)
As a result of recommendations of the Australian Citizenship Test Review Committee, and amendments effected first by the Migration Legislation Amendment Act (No 1) 2008 (Cth) and subsequently by the Australian Citizenship Amendment (Citizenship Test Review and Other Measures) Act 2009 (Cth), those three ordinary eligibility criteria may not apply where a citizenship applicant has a significant incapacity (either physical or mental, and either permanent or enduring). In such a case the person is eligible for citizenship if they both (i) comply with the five other ordinary eligibility criteria in ACA 2007 s 21(2) and (ii) satisfy the Minister that, because of their incapacity, when they applied for citizenship they were not capable of satisfying any one of the other three ordinary criteria (ie “awareness“, “English” and “knowledge”).
31. Fundamentally, for Mrs Mohebi to obtain an exemption from sitting the citizenship test she must satisfy the Tribunal first, that she has a mental incapacity. Second, that this incapacity is permanent or enduring. Finally, that her mental incapacity prevents her from understanding any one of the following three matters: one, the nature of the Australian citizenship application; two, possessing a basic knowledge of the English language; and three, having a basic knowledge of Australia and of the privileges and responsibilities of Australian citizenship.
32. In order to demonstrate this, Mrs Mohebi must produce evidence from a qualified medical practitioner which shows that the enduring incapacity is one for which there can be no predictable recovery, or where that recovery would not reasonably be expected to take place before the applicant becomes otherwise eligible for a grant of citizenship.
33. Mrs Mohebi was unable to produce evidence from a qualified medical practitioner that showed that at the time of her application she was suffering from an enduring mental or physical incapacity. Based on the evidence before the Tribunal, it cannot be satisfied that, at the time Mrs Mohebi made her application for citizenship in 2014, she had a permanent or enduring mental incapacity for the purposes of s 21(3)(d) of the Act to be exempt from sitting the citizenship test.
34. The Tribunal finds that Mrs Mohebi has been suffering from a major depressive disorder since 2018, based on the medical evidence of Dr Takyar, which results in a permanent mental incapacity such that she is now not capable of understanding the nature of the application; is unable to demonstrate a basic knowledge of the English language; and would be unable to demonstrate an adequate knowledge of Australia and of the responsibilities and privileges of Australian citizenship. Accordingly, the Tribunal would encourage Mrs Mohebi to reapply for Australian citizenship by conferral seeking an exemption from passing the citizenship test on the basis of her permanent and enduring mental incapacity in accordance with s21(3)(d) of the Act.
Noorullah, Hamidulla and Haseebullah Mohebi
35. Mr Orchard contended that in accordance with the Citizenship Policy Mrs Mohebi’s three children who were included on her application for citizenship by conferral must be assessed in their own right if Mrs Mohebi’s application for citizenship is refused. As the Tribunal has affirmed the determination to refuse Mrs Mohebi’s application for citizenship it must consider the application of the three children who were under 16 at the time in their own right in accordance with the policy guidelines.
36. Mr Orchard contended that Noorullah, Hamidulla and Haseebullah did not satisfy the relevant policy requirements set out in chapter 7 of the Citizenship Policy in relation to persons aged under 16 years as they were not living with a responsible parent who is an Australian citizen and who consents to the application nor were they living with a responsible parent who is not an Australian citizen and consents to the application and the child would otherwise suffer significant hardship or disadvantage.
37. Mr Orchard contended that Noorullah, Hamidulla and Haseebullah had not presented any evidence that significant hardship or disadvantage would arise if their application for citizenship by conferral was refused. He contended that as permanent residents their material situation would not be impacted if their citizenship application was refused as they would be able to remain in Australia permanently enjoying the same education, health and welfare services, freedoms and protections as any other member of the Australian community. Furthermore, Mr Orchard contended there was nothing unusual about Noorullah, Hamidulla and Haseebullah circumstances which warranted the granting of citizenship.
38. Ms Palwasha Mohebi did not dispute the contention of the Minister that her brothers would not suffer significant hardship or disadvantage if their citizenship was refused but on behalf of her mother and three brothers argued that it was a lengthy and expensive process to seek citizenship, that all the family consider themselves Australian, that they were working or studying and contributing to Australian society and would like this lengthy process resolved. Ms Palwasha Mohebi advised the Tribunal that since she had turned 18 she has subsequently submitted an individual application for Australian citizenship by conferral and is awaiting the outcome of the application.
39. The Tribunal considered the cases of Noorullah, Hamidulla and Haseebullah individually but as there are no distinguishing factors or evidence in respect of the three sons the Tribunal has combined the reasons for the decision for ease of understanding.
40. The Tribunal concurs with the delegate that to refuse Noorullah, Hamidulla and Haseebullah would not change their status in Australia denying them the protections and rights of Australian law and would therefore not be against the best interest of the child in accordance with the policy and article 3.1 of the Conventions of the Rights of the Child.
41. The Tribunal having considered the citizenship policy for children under 16 observes that the delegate needs to assess them individually in their own right. The Tribunal found the delegate did not consider Noorullah, Hamidulla and Haseebullah’s applications in their own right as the delegate did not considered whether the three children were living with a responsible parent who is an Australian citizen, having only considered their mothers status and not their father’s. The Tribunal notes that if the delegate had undertaken this step they could have ascertained if Noorullah, Hamidulla and Haseebullah’s father was a responsible parent, was an Australian citizen and gave his consent for the application. As such the Tribunal remits the matter to the Minister to consider Noorullah, Hamidulla and Haseebullah’s citizenship applications individually in their own right as at the date of application.
8. DECISION
42. For the reasons given, the Tribunal affirms the decision of the Minister dated 18 June 2018 refusing Mrs Mohebi’s application for Australian citizenship by conferral.
43. The Tribunal sets aside the decision of the Delegate dated 29 May 2018 refusing Hamidulla, Noorullah, and Haseebullah Mohebi’s application for Australian citizenship by conferral; and remits the matter to the Minister for reconsideration in accordance with a Direction from the Tribunal, pursuant to s 43(1)(c)(ii) of the Administrative Appeals Tribunal Act 1975 (Cth) for consideration individually in their own right as at the date of application.

I certify that the preceding forty-three (43) paragraphs are a true copy of the reasons for the decision herein of Ms Anna Burke AO, Member.

....................[sgd]...............................
Associate
Dated: 8 October 2019

Dates of hearing: 16 July 2019

Applicant: Self-Represented

Advocate for the Respondent: Mr Chris Orchard

Solicitors for the Respondent: Sparke Helmore Lawyers

[2019] AATA 4098

8 October 2019

Key Legal Topics

Areas of Law

Administrative Law

Immigration

Legal Concepts

Judicial Review

Natural Justice

Procedural Fairness

Remedies

Standing

Statutory Construction

Dates of hearing:	16 July 2019
Applicant:	Self-Represented
Advocate for the Respondent:	Mr Chris Orchard
Solicitors for the Respondent:	Sparke Helmore Lawyers