Naeem and Minister for Immigration and Citizenship

[2011] AATA 584

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION

[2011] AATA 584

ADMINISTRATIVE APPEALS TRIBUNAL      )          

)          No 2010/4410

GENERAL ADMINISTRATIVE DIVISION		)
Re		Mizrab NAEEM

Applicant

And Minister for Immigration and Citizenship

Respondent

DECISION

Tribunal Mr R P Handley, Deputy President

Date24 August 2011

PlaceSydney

Decision The Tribunal affirms the decision under review.

......................[sgd]....................

Mr R P Handley
  Deputy President

CATCHWORDS

IMMIGRATION & CITIZENSHIP – refusal to grant citizenship – applicant between 16 and 18 years of age – Australian Citizenship Instructions – applicant does not meet policy requirements – circumstances not very unusual or exceptional

RELEVANT ACT

Australian Citizenship Act 2007 (Cth)

CITATIONS

Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24

Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634

Re Kim and Minister for Immigration and Citizenship [2010] AATA 198

OTHER AUTHORITIES

Australian Citizenship Instructions, Chapter 5 (in effect 1 July 2011)

REASONS FOR DECISION

24 August 2011 Mr R P Handley, Deputy President          

1.      Mizrab Naeem has applied to the Tribunal for review of a decision of a delegate of the Minister for Immigration and Citizenship to refuse her application for Australian citizenship by conferral.  The issue for the Tribunal is whether this is the correct or preferable decision.

Background

2.      Ms Naeem was born in Pakistan in December 1993 and is aged 17.  She first arrived in Australia on 3 May 2008 as the holder of a subclass 101 Child (permanent) visa.  She departed Australia on 6 August 2008 returning on 13 April 2010.

3.      On 5 July 2010, Ms Naeem lodged an application for citizenship by conferral pursuant to s 21(5) of the Australian Citizenship Act 2007 (the Act).  The application was refused by a delegate of the Minister on 10 September 2010 on the ground that her circumstances did not meet the relevant policy requirements as to residence outlined in the Australian Citizenship Instructions (the Instructions).  On 13 October 2010, Ms Naeem applied to the Tribunal for a review of this decision.  She was represented by her father, Naeem Ahmed, who appeared at the hearing by conference telephone.

The Legislative Framework and Policy

4.      Section 21(1) of the Act provides that a person may make an application to the Minister to become an Australian citizen and s 21(5) is the applicable provision in the case of a person under the age of 18:

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 person’s decision on the application.

5.      The power to approve, or to refuse to approve, a person becoming an Australian citizen is set out in s 24 of the Act, which states relevantly:

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.

(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).

…

6.      Section 24(2) does not state the factors that may be taken into account when exercising the discretion to refuse approval of a grant of citizenship, and the discretion of the decision-maker is therefore similarly unconfined (see Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 per Mason J at 40).

7.      However, the Government has developed policy in the form of the Instructions to provide guidance to decision-makers.  The introduction to the Instructions states that their role is:

... to support the Australian Citizenship Act 2007.  The instructions provide guidance on policy in relation to the interpretation of, and the exercise of powers under, the Act and the Regulations.  Decision makers should be mindful that policy must not be applied inflexibly.  Policy cannot constrain the exercise of delegated powers under the Act.

8.      Decision-makers should generally apply policy such as the Instructions unless the policy is unlawful or its application produces an unjust result in the circumstances of a particular case: Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634.

9.      The Instructions specify criteria for determining citizenship applications.  The Instructions in effect at the time Ms Naeem’s application for citizenship was lodged on 5 July 2010 stated relevantly:

Person aged under 18 years (s 21(5))

… The discretion in s 24(2) to refuse to approve an applicant becoming an Australian citizen despite being eligible under s 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.

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.  This consideration only applies if the child is or would be less than 18 years of age at the time of decision on the application and the child is living in Australia.

…

POLICY GUIDELINES

Applicants aged 16 years and over and under the age of 18

Applicants aged 16 years and over and under the age of 18 (that is, aged 16 or 17 years) must make an application on a form that contains no other application. 

Applicants aged 16 years and over and under the age of 18 would usually be approved under s 24 if they are permanent residents at the time of application and decision and also meet the following policy guidelines:

·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 an 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.

Applicants between the ages of 16 and 18 should be given an opportunity at interview to demonstrate that they understand the nature of their application, have an adequate knowledge of the responsibilities and privileges of citizenship; and that they possess a basic knowledge of the English language.  It is important that an applicant’s ability to understand questions is not hampered by the use of complex words and sentences.

Applications from children aged 16 years and over do not need the consent of a responsible parent.

Other requirements which must be satisfied relating to identity, national security, offences and former citizens are set out in the Minister’s decision (s 24).

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 interest of the child, to determine whether the application nevertheless warrants approval because of the unusual nature of those circumstances.

Guidance on whether it may be reasonable to consider a particular set of circumstances as unusual can be obtained from National Office through the Citizenship Help Desk.

10.     Attachment B to the Instructions provides guidance on what constitutes significant hardship and disadvantage.  Attachment B states that the onus is on the applicant to provide evidence to support the application and that the applicant would normally be required to demonstrate some or all of (1) an inability to gain employment because employment is restricted to Australian citizens, (2) difficulty of international travel because a person is unable to obtain or use a passport from their country of nationality/citizenship, and (3) academic or other potential is limited or restricted because of a lack of Australian citizenship.  Each application must be assessed on its merits but, while “policy is not to be applied inflexibly, it must be applied, unless there are special circumstances that would warrant consideration outside that policy”.

The Issues

11.     The Instructions set out above relevantly identify three primary considerations to be taken into account by the decision-maker: the legislative requirements, the best interests of the child and the policy guidelines.  Where the policy guidelines are not met, the decision-maker must also consider whether the application should, nevertheless, be approved because of the unusual nature of the circumstances.  There is no dispute that Ms Naeem meets the legislative requirements: she was aged under 18 at the time she made the application for citizenship, and was a permanent resident at the time of her application and at the time of the Minister’s decision on her application.  

12.     However, the Minister contends that she does not satisfy the policy guidelines in the Instructions because she does not meet ‘the residence requirements’.  The Minister contends that the residence requirements are those set out in s 22(1) of the Act:

22(1)  Subject to this section, for the purposes of section 21 a person satisfies the general residence requirement if:

(a)  the person was present in Australia for the period of 4 years immediately before the day the person made the application; and

(b)  the person was not present in Australia as an unlawful non‑citizen at any time during that 4 year period; and

(c)  the person was present in Australia as a permanent resident for the period of 12 months immediately before the day the person made the application.

13.     The Minister states that Ms Naeem was present in Australia for approximately six months in the four years immediately preceding her application and was present in Australia as a permanent resident for approximately three months in the 12 months immediately prior to the date of her application.  Thus, the Minister contends, Ms Naeem does not meet the ‘residence requirements’.  I agree this is the case.

14.     This then raises the question whether Ms Naeem’s application for Australian citizenship nevertheless warrants approval because of her unusual circumstances, having particular regard to her best interests as a child.  The Minister submits that Ms Naeem’s circumstances are not sufficiently unusual to justify a decision outside the normal policy requirements.  

The Evidence

15.Mr Naeem told me that after his daughter first arrived in Australia on 3 May 2008, she enrolled in and began attending Canterbury Girls High School.  He then decided that Ms Naeem, accompanied by her two younger sisters, should return to Pakistan to complete her secondary education there.  Ms Naeem departed Australia on 6 August 2008 returning to Australia 20 months later on 13 April 2010.

16.Mr Naeem applied for Australian citizenship on 20 October 2009 including Ms Naeem and her two sisters in the application.  At that time, Ms Naeem and her sisters were residing in Pakistan.  On 18 November 2009, an officer in the Department phoned Mr Naeem to discuss the inclusion of his daughters in the application.  According to the officer’s file note of that date, the officer:

Discussed with the client that children under 16 years of age should be residing in Australia with the responsible parent application [sic] when applying for citizenship.  Client said the children are currently residing overseas, and he will with draw them from the application. Client asked if the children would be eligible next year when they come to Australia to live with him.  I told the client that if they are PR & have an A/a citizen parent adn [sic] living in Australia with him permanently they would be eligible to apply.

By email of the same date, Mr Naeem notified the Department that “I want to withdraw the names of my 3 daughters from application”. 

17.Mr Naeem’s application for citizenship was approved on 20 November 2009 but the formal conferral of citizenship did not take place until a ceremony held on 19 May 2000.  Meanwhile, Ms Naeem had returned to Australia on 13 April 2010 and, on 5 July 2010, lodged her application for citizenship.

Discussion

18.The Minister’s representative, Ms Stone, noted that at the time Mr Naeem lodged his application for Australian citizenship on 20 October 2009, initially including his three daughters, the relevant version of the Instructions (those in effect between 21 September 2009 and 8 November 2009) stated, in respect of a child under the age of 16, which Ms Naeem was at that time:

Children under the age of 16 applying on the same form and at the same time as a responsible parent would usually be approved under section 24 if they meet the following policy guidelines:

* the child was a permanent resident

* the child was living in Australia with the relevant responsible parent and

* the responsible parent consented to the inclusion of the child in their application.

19.Thus, Ms Stone contended that the advice given by the departmental officer to Mr Naeem that his children needed to be living in Australia with him at the time of the application was correct.  I agree that the advice given was in accordance with the Instructions, all three daughters then being under the age of 16.

20.At the time that Mr Naeem lodged his application for citizenship on 20 October 2009, the eligibility requirement for persons under 18 set out in s 21(5) of the Act stated:

(5) A person is eligible to become an Australian citizen if the Minister is satisfied that the person is aged under 18 at the time the person made the application.

21.There was no requirement in the Act that the person be a permanent resident although such a requirement was included in the Instructions (at [18], above).  With effect from 9 November 2009, s 21(5) was amended to include the permanent residence requirement in paragraph (b) (at [4], above).  This did not affect Ms Naeem’s subsequent citizenship application because, at all relevant times, she was a permanent resident.

22.However, the principal difference for Ms Naeem in applying in July 2010 was that by this time she was over the age of 16 and the requirements stated in the Instructions which applied to her were different from those applicable in respect of persons under the age of 16.  Children aged 16 and over and under the age of 18 were required by the policy guidelines in the Instructions to satisfy “the residence requirements”.  There was no such requirement in respect of children under the age of 16.  Thus, it appears that when applications for citizenship were lodged by the three Naeem sisters, the two younger sisters, who were both still under the age of 16 and were not subject to the residence requirements, were granted citizenship, while Ms Naeem, who was over 16 and therefore subject to the residence requirements, was refused citizenship because she did not satisfy those requirements, as explained at [12] and [13] above.

23.Where an application by a person over 16 and under 18 does not satisfy the policy requirements, the Instructions require that the full circumstances of the case be considered, including the best interests of the child (which is a primary consideration), to determine whether the application nevertheless warrants approval because of the unusual nature of the circumstances.

24.Notwithstanding the refusal of her application for citizenship on this occasion, Ms Naeem can reapply at any time in the future.  In my view, she is not significantly disadvantaged by this.  Her status in Australia is that of a permanent resident.  Mr Naeem contended that his daughter would be disadvantaged by her not being an Australian citizen, in particular, because she will be finishing her Higher School Certificate in 2012 (she is currently in Year 11) and will be seeking admission to university.  However, according to the Instructions, permanent visa holders seeking entry to university “are eligible for a Commonwealth supported place (previously known as the Higher Education Contribution Scheme) or a domestic fee-paying place”.  The only limitation is that only Australian citizens can apply for a loan under the Australian Government’s Higher Education Loan Programme for their student contribution or tuition fee.

25.Mr Naeem also contended that it would be more difficult for Ms Naeem to travel outside Australia.  However, Ms Stone told me that as a permanent visa holder, Ms Naeem has a right of re-entry into Australia.  Thus, it would appear that the only disadvantage she might suffer is if other countries treat her, as the holder of a Pakistani passport, less favourably than other members of her family who hold Australian passports.  Mr Naeem said that, for example, his daughter would be required to obtain a visa for entry into Thailand, which is not required of Australian passport holders. 

26.I am not satisfied that, in terms of her access to higher education or international travel, Ms Naeem will suffer any significant hardship or disadvantage as a result of her application for citizenship being refused on this occasion.  She will, after all, be able to reapply for citizenship when she meets the residence requirements, which is likely to be in 2014.  Thus, I do not consider that her circumstances are so ‘unusual’, in the sense of the ordinary meaning of the word, that of something which is uncommon (see Re Kim and Minister for Immigration and Citizenship [2010] AATA 198, at [23]), such that her application warrants approval outside the usual policy requirements.

Decision

27.The Tribunal therefore affirms the decision under review.

I certify that the 27 preceding paragraphs are a true copy of the reasons for the decision herein of Mr R P Handley, Deputy President.

Signed:.........[sgd]......................................................................
           Associate

Date of Hearing  19 August 2011
Date of Decision  24 August 2011
Representative for the Applicant               N Ahmed
Solicitor for the Respondent  M Stone, DLA Piper