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

This matter concerned an appeal by the applicants, who were under 18 years of age and overseas, against a decision by the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs. The appeal was heard by the Administrative Appeals Tribunal.

The Tribunal was required to determine whether the applicants met the requirements for citizenship by conferral, specifically considering Citizenship Procedural Instruction (CPI) 4 concerning persons under 18 and CPI 13 regarding the best interests of the child. A key issue was whether the applicants' parents, who were permanent residents, could be considered "usually resident" in Australia, a prerequisite for the applicants to be granted citizenship by conferral under the relevant policy.

The Tribunal reasoned that while the applicants' mother had made a carefully considered plan for their education in Australia and both parents had a genuine desire to relocate and had established a "close and continuing association" with Australia, there was no immediate or realistic prospect of them fulfilling the requirement of being "usually resident" in Australia. This was due to their ongoing family responsibilities in Vietnam and current pandemic restrictions preventing travel. The Tribunal found that for it to depart from this requirement, there needed to be a "cogent reason" found in the best interests of the child. After considering various factors, including keeping the family unit together, the children's health needs, preserving their identity, potential hardship, and integration into the Australian community, the Tribunal concluded that it was not in the best interests of the children to be separated from their parents for extended periods, nor to be deprived of direct parental support for their psychological conditions. The Tribunal also expressed concern about the children losing their sense of Vietnamese identity.

Ultimately, the Tribunal affirmed the original decision, finding that the applicants had not met the necessary criteria for citizenship by conferral.