PNXQ and Minister for Immigration and Multicultural Affairs (Citizenship)
[2025] ARTA 229
•7 January 2025
PNXQ and Minister for Immigration and Multicultural Affairs (Citizenship) [2025] ARTA 229 (7 January 2025)
Decision and Reasons for Decision
Applicant/s: PNXQ
Respondent: Minister for Immigration and Multicultural
Affairs
Tribunal Number: 2024/0271
Tribunal: General Member S Evans
Place: Sydney
Date: 7 January 2025
Decision:The reviewable decision is set aside and the matter is remitted to the Respondent with a direction that PNXQ meets the requirements in subsection 21(5) of the Act for conferral of Australian citizenship and the discretion to refuse to approve the application provided in subsection 24(2) not be exercised.
....................[SGD]..............................................
Member S Evans
CATCHWORDS
CITZENSHIP – Applicant 16 year old citizen of America - application for citizenship by conferral lodged on his behalf – Applicant usually resident overseas and living with responsible parent who is an Australian citizen - whether the discretion in s 24(2) of the Act should be exercised - Applicant satisfies the policy guidance in paragraph 7 of CPI 4 - requirements in section 21(5) met - discretion provided in section 24(2) not to be exercised.
LEGISLATION
Australian Citizenship Act 2007 (Cth)
CASES
Minister for Home Affairs v G [2019] FCAFC 79
SECONDARY MATERIALS
Citizenship Procedural Instructions (CPI)
STATEMENT OF REASONS
INTRODUCTION
The applicant, PNXQ, is a 16-year-old minor born in the Philippines who is a citizen of the United States of America (America). PNXQ currently resides in America with his adoptive father and mother.1
On 17 July 2022, when PNXQ was 14 years-old, the father lodged an application for Australian citizenship by conferral on his behalf.2
1 T-Documents (‘T’), T3, p.42-44; Applicant’s reply to Respondent’s SFIC dated 29 August 2024.
2 T3, p.19-46; Applicant’s Statement dated 11 June 2024.
PNXQ met the requirements for conferral of Australian citizenship under the Australian Citizenship Act 2007 (Cth) (the Act). However, a delegate of the Minister for Immigration, Citizenship and Multicultural Affairs (the Respondent) decided to exercise their discretion to refuse to approve PNXQ becoming an Australian citizen despite being eligible. On 22 December 2023, the delegate refused PNXQ’s application for Australian citizenship (the reviewable decision).3
PNXQ seeks review of the delegate’s decision at the Administrative Review Tribunal (the Tribunal). For the reasons that follow, the reviewable decision will be set aside.
FACTUAL BACKGROUND
The father lodged an application for Australian citizenship by conferral on behalf of PNXQ when he was 14 years old.
On 2 June 2023, the Respondent Department requested more information in support of the application. Specifically, the Department requested:
· evidence of the responsible parent’s Australian citizenship;
· consent from the Australian citizen responsible parent to be added to the dependant’s application;
· evidence that the applicant is living with the responsible parent (e.g. Medicare card, DHS Card, letter from your child’s school or from your child’s General Practitioner).4
In response to the requests, PNXQ’s father provided a letter and his own financial documents including an annual statement from Australian Retirement Trust, a statement from an Australian bank account, his current Australian driver licence and an ATO notice of assessment for the financial years ending June 2020, June 2021 and June 2022.5
On 1 November 2023, a delegate of the Respondent sent a letter to the father indicating they were satisfied of PNXQ’s intention to reside or to continue to reside in Australia, or to maintain a close and continuing association with Australia. They also invited an update on PNXQ’s circumstances including when he was intending to return to Australia and an
3 T2, p.11-18.
4 T5, p.53.
5 T7, p.60-67.
explanation as to why he was offshore.6 The delegate outlined the reasons for the request as follows:
Under subsection 24(5) of the Australian Citizenship Act 2007 (the Act) an applicant applying under subsection 21(2)(3) or (4) of the Act may only be approved to become an Australian citizen at a time when they are not present in Australia, if the Minister applied: a special residence requirement, alternative residence requirement, or a spouse/partner/ interdependent relationship discretion in relation to the applicant; or in situations where the applicant would be eligible for a spouse/partner/interdependent relationship discretion but did not need it in order to meet the general residence requirement.
Department records show that you departed on 17 July 2022. You have provided evidence of your intended return date to Australia. We may be able to delay the decision on your application until your date of return if this falls within 10 weeks from receiving this letter. We do not have the legal capacity to defer making a decision on an application and cannot postpone finalising an application indefinitely. If you do not return to Australia within a 10 week period, a decision will be made your application as soon as practicable without further correspondence.
[Emphasis in original]
On 2 November 2023, the father responded to the request, stating that the legislative provisions referred to in the delegate’s letter were ‘not relevant’ as PNXQ was under the age of 16 and asked that his application be determined under section 21(5) of the Act. He wrote in part:
Subsection [subsection] 24(5) of the Australian Citizenship Act 2007 does not apply, and he is not applying under 21(2)(3) or (4).
It would be greatly appreciated that you approve [ PNXQ’s] application for Australian Citizenship under subsection 21(5) of the Act. It is understood that [PNXQ] on acquiring Australian citizenship will require an Australian passport prior to returning to Australia.7
[emphasis in original]
On 16 November 2023, a different delegate wrote to the father indicating it appeared PNXQ may no longer be likely to reside or to continue to reside in Australia, or to maintain a close and continuing association with Australia. The delegate referred to the relevant policy and issues and provided PNXQ a final opportunity to comment and provide information before the decision was made.8 The delegate wrote in part:
6 T9, p.72-73.
7 T10, p.74.
8 T11, p.75-79.
As the assessing case officer, I am under no obligation to accept the assessment of another delegate unless I am satisfied that the assessment is sufficiently supported by documentary evidence.
Under citizenship policy, delegates must have due regard to all the circumstances of the family unit, when considering individual applications made by or on behalf of a child aged 15 years and under. If an under 16 applicant is usually resident overseas and living with a responsible parent who is an Australian citizen, delegates must assess whether the child (and their parent) has an intention to reside, or will maintain a close and continuing association with Australia should the application be approved.
Before a decision is made on your son’s application, I am providing you with a final opportunity to comment and to give a written response as to whether you are likely to reside or maintain a close and continuing association with Australia. Please refer to the attached document request letter.9
On the same day, the father responded that he did not consider PNXQ was required to show he had a close and continuing association with Australia.
This application for Australian Citizenship is being made for [P N X Q] under subsection 21(5) of the Australian Citizenship Act 2007 … [PNXQ] was fourteen
(14) years old at the time of this application and is currently fifteen (15) years old.
I am a father, not an immigration lawyer, but it is my humble interpretation that subsection 21(2)(g) that is specified in your letter is for applicants 18 or older. This does not apply as [PNXQ] is under eighteen years old. Subsection 21(5) of the Act does appear to be the relevant section for this application.
It is not clear to me if the information that you are requesting is for [PNXQ], who is a child and can’t not show proof that you are asking, or for myself. However, I maintain a close and continuing association with Australia as shown on the attached, that includes Australian bank account, Australian superannuation, Australian (ATO) tax returns, Australian passport, and current Queensland Driver License. In addition, I have two biological children and parents (who are [PNXQ’s] siblings and grandparents) that are Australian citizens that reside in Australia.
I respectively [sic] ask that approve my son’s application for Australian Citizenship under subsection 21(5) of the Act.10
[errors in original]
On 22 December 2023, a delegate of the Respondent decided to exercise the discretion in section 24(2) of the Act to refuse to approve PNXQ’s application for citizenship by conferral on the basis that they were not satisfied that PNXQ and his father, had an intention to reside,
9 Ibid, p.75.
10 T12, p.80.
or would maintain a close and continuing association with Australia, should the application be approved.11
On 15 January 2024, PNXQ’s father applied to the Tribunal for review of the delegate’s decision.12
RELEVANT LEGISLATION AND POLICY
The relevant legislation is provided in the Australian Citizenship Act 2007 (Cth) (the Act). Subsection 24(1) of the Act requires that if a person makes an application for Australian citizenship under section 21, the Minister must, in writing, approve or refuse to approve the person becoming an Australian citizen.
Section 21(5) sets out the requirements for eligibility for conferral of citizenship for people aged under 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 Minister’s decision on the application.
Section 24(2) of the Act provides that the Minister may refuse to approve a person becoming an Australian citizen despite the person being eligible to become an Australian citizen under section 21(5).
24 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).
11 T2, p.1-10.
12 T1, p.1-10.
(2) TheMinister 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.
…
Section 24(5) of the Act provides that where a person is not present in Australia, ‘the person is covered by subsections 21(2), (3) or (4)’ and the Minister must not approve the person becoming an Australian citizen at the time when the person is not present in Australia. For the avoidance of any doubt, consistent with the father’s letter to the Respondent department on 2 November 2023, as the current application was made under subsection 21(5), section 24(5) is not applicable. The discretion to refuse PNXQ’s application is provided by subsection 24(2) of the Act.
The citizenship policy
The Australian Citizenship Policy and the Citizenship Procedural Instructions (CPI) provide guidance to decision makers when considering applications for Citizenship. It is well established that the Tribunal is not bound by government policy, but it will generally be taken into consideration unless there is good reason not to do so.13
CPI 4 – Australian Citizenship by Conferral – Person under 18 – identifies legal policy and procedures that apply to the assessment of an application under subsection 21(5) of the Act. Paragraph 7 Policy considerations for children aged 15 years and under provides:
In order to uphold and maintain the integrity of the citizenship program, delegates must have due regard to all the circumstances of the family unit, when considering individual applications made by or on behalf of a child aged 15 years and under.
….
The intent of these policy is the child (and their responsible parent/s) intends to reside, or continue to reside, in Australia or maintain a close and continuing association with Australia, if the application was to be approved.
As it would be difficult for a child to meet the policy guidance on maintaining a close and continuing association with Australia, residence in Australia is generally the
13 See Re Drake and Minister for Immigration, and Ethnic Affairs (No. 2) (1979) 2 ALD 634, 645 per Brennan J, which was cited with approval in Minister for Immigration, Local Government and Ethnic Affairs v Gray (1994) 33 ALD 13, 30 per French and Drummond JJ.
most relevant to a child's circumstances. Therefore, checks must be made to confirm that the child's movement records indicate the child resides in Australia. If it appears the child is not usually resident in Australia, further information must be requested from the lodging parent that the child is or will be residing in Australia, such as evidence the Australian parent has a relevant Australian court order that the child is to live in Australia with that parent or the child is enrolled in or attending school.
CPI 4 states that applicants who are 15 years or under are expected to meet one of five categories and the policy provides distinct policy guidelines for each. Those categories are:
(a)usually resident in Australia and living with a responsible parent who is an Australian citizen and who consents to the application; or
(b)usually resident in Australia and living with a responsible parent who is a permanent resident and who consents to the application; or
(c)usually resident in Australia and living with a responsible parent who is not an Australian citizen and who consents to the application; or
(d) usually resident overseas and living with a responsible parent who is an Australian citizen and who consents to the application. In this situation, delegate’s must assess whether the child (and their parent) has an intention to reside, or will maintain a close and continuing association with Australia should the application be approved. The delegate must also consider whether the grant of the Australian citizenship could disadvantage the child, or put them in significant hardship; or
(e)an unaccompanied humanitarian minor who falls under the Minister’s guardianship.
[emphasis added]
Based on the uncontested facts, the Applicant falls into category (d). Where a child is usually resident overseas and living with a responsible parent, who is an Australian citizen, CPI 4 provides that decision makers must assess whether the child (and their parent) ‘has an intention to reside, or will maintain a close and continuing association with Australia should the application be approved’. Decision makers ‘must consider the child’s previous residence or patterns of visits to Australia, as well as the family unit’s association to Australia’.
Where a child is usually resident overseas, the delegate must also consider whether the grant of the Australian citizenship could disadvantage the child, or put them in significant hardship. For example, by losing their other citizenship).14
Paragraph 11.1 of CPI 4 provides policy guidance on the discretion to refuse to approve an application for conferral of citizenship despite being eligible, which is provided by subsection 24(2) of the Act. It states in part:
14 T1, p.95-109.
When considering the use of this discretion, a best interest of the child assessment must be undertaken prior to a decision being made. A best interest of the child assessment is not required if the applicant has turned 18 at the time of decision. The best interest of the child assessment must be included in the reasons for decision to demonstrate that the delegate has considered this matter.
This may require the delegate to seek additional information about the circumstances of the child. For further information, refer to CPI 13 - Best Interests of the Child Assessments.
The assessment must be fully documented including all information taken into consideration in making the finding concerning the child.
The best interests of the child is a primary consideration but it is not the only consideration that must be taken into account. A best interest of a child assessment cannot override a legal requirement set out in the Act, however, the exercise of a discretionary power such as subsection 24(2), must take account of the best interests of the child as a primary consideration.
CPI’s 12 and 13 provide guidance to decision makers in ‘assessing significant hardship’, disadvantage or detriment for the purposes of Australian citizenship and the ‘best interests of the child assessments’ respectively.
ISSUES TO BE DETERMINED
As PNXQ was under 18 years of age and a permanent resident at the time of the application for citizenship, it is not in dispute that he satisfies the eligibility criteria in section 21(5) of the Act. He is also a permanent resident at the time of the Tribunal’s decision, subject to any change in the circumstances. Accordingly, the sole issue for determination by the Tribunal is whether the discretion in s 24(2) of the Act should be exercised to refuse to approve the PNXQ’s application.
EVIDENCE
The following information, which I accept, is based on the statements and evidence of PNXQ’s Australian citizen father.
The father was born and raised in Australia and works for a multinational company servicing the mining industry. In 2006 the father relocated to Vietnam for work. In 2008 he was assigned to the Philippines where he met the mother in late 2008. They remained in the Philippines until 2016 when they emigrated to the United States, where the Applicant and his parents currently reside. All are US citizens. Despite having worked overseas since
2006, the father said his employer has a strong presence in Australia which he says provides a ‘professional anchor to the country’.
The father stated that he and his family intend to return to Australia to reside in the foreseeable future. He gave oral evidence he has applied for an internal transfer with his employer which would require he be based in Perth. He said the closing date for applications was 10 November 2024 and he anticipates he will know if he will be transferred shortly after that date. Should he be successful, PNXQ, his father and mother would reside in Australia.
PNXQ’s father has significant family ties to Australia – notably his parents and two sisters reside in Queensland. He also has two adult daughters who reside in Brisbane, both of whom had visited him in the US. The father visits regularly to nurture close relationships with his family in Australia.
The father’s daughters and parents have established and maintained a relationship with the Applicant and have developed a strong connection, primarily through electronic communication.
PNXQ has travelled to Australia on a nine day holiday in July 2022. He is currently at high school in America and has not returned to Australia because of school commitments. The father confirmed it is yet to be decided if PNXQ will complete his schooling in the US or Australia.
CONSIDERATION
It is appropriate I deal in the first instance with the father’s contention that the relevant policy is inconsistent with the law. The Respondent relies on the Full Court’s findings in the matter of Minister for Home Affairs v G [2019] FCAFC 79 where the Full Court observed in reference to an earlier version of the policy guidance:
[64] First, the statute confers a broad and unfettered discretion in s 24(1) to approve or refuse to approve a person who has made an application under s 21 becoming an Australian citizen. The breadth of the discretion is confirmed by s 24(2), which provides that the Minister may refuse to approve the person becoming an Australian citizen despite the person being eligible to become an Australian citizen under s 21(2), (3), (4), (5), (6) or (7).
…
The breadth of the discretion in s 24(1) is not inimical to the adoption of an executive policy, even a detailed executive policy, to guide the exercise of the discretion. To the contrary, the breadth of the discretion tends to support the view that there is no inconsistency between section 5.12.5 of the Instructions and the statute. Moreover, the adoption of a policy in such a case promotes values of consistency and rationality in decision-making, and the principle that administrative decision-makers should treat like cases alike: see Plaintiff M64 at [54].
Accordingly, the departmental policy is to be taken into account when making a decision and given appropriate weight. I note that CPI 1 acknowledges “policy and procedures do not have the force of law” and advises that “when exercising powers or making decisions under legislation, citizenship officers should give policy documents due weight, but should not apply policy inflexibly and should consider the merits of each individual case”.
As outlined above, where an applicant aged under 18 is usually resident overseas and living with an Australian citizen parent, CPI 4 instructs decision makers to assess whether the child and their parent has an intention to reside or will maintain a close and continuing association with Australia should the application be approved.
CPI 4 alerts decision makers to CPI 11 – Assessing likelihood to reside or continue to reside in, or maintain a close and continuing association with Australia – which identifies ‘legal requirements and related policy and procedures that apply to the assessment of an application for conferral of Australian citizenship under subsection 21(2)’ of the Act. CPI 11 is not before the Tribunal. For guidance on assessing applications for conferral of Australian citizenship under other sub-provisions of section 21, decision-makers are referred to CPI 4. As this application made under s 21(5) of the Act, the relevant policy guidance is provided in CPI 4.
To that end, CPI 4 acknowledges that it would be difficult for a child to meet the policy guidance on maintaining a close and continuing association with Australia, stating that residence in Australia is generally the most relevant to a child’s circumstances. PNXQ has not resided in Australia. In these circumstances, paragraph 7 of CPI 4 states “further information must be requested from the lodging parent that the child is or will be residing in Australia”.
As required by paragraph 7 in CPI 4, additional information was requested from PNXQ’s father by the Respondent department on 16 November 2023.15 The father did not provide further information in response to that request, but has done so in the course of the Tribunal proceedings.
The Respondent submits that the Tribunal cannot be satisfied that either PNXQ or his father intend to reside in Australia. It is argued that the father’s intention to reside in Australia is a vague aspiration, insufficient for the Tribunal to be satisfied he has an intention to reside.
Should the discretion in 24(2) of the Act be exercised to refuse an application despite being eligible, CPI 4 paragraph 11.1 provides that a best interest of the child assessment must be undertaken prior to a decision being made. In this circumstance, I am required to consider the best interests of PNXQ as a child as provided for by the United Nations Convention on the Rights of the Child. CPI 13 sets out the factors which are likely to be relevant in the context of decisions about Australian citizenship.
In this regard, the father has identified future uncertainty brought by holding a visa to stay in Australia, the absence of rights and protections only afforded to Australia citizens, the complications associated with international travel and negative psychological impact his reduced sense of belonging would bring.
Having regard to the evidence and policy, I am satisfied that refusing to confer Australian citizenship would impact on PNXQ’s interests only marginally. Should his application be refused, he would remain an Australian permanent resident, able to travel to and reside in Australia. He would not be separated from his family. Further, he would not be prevented from applying for citizenship in the future, should he choose to reside in Australia. I do not believe that PNXQ would suffer disadvantage or be placed in significant hardship should he not be granted Australian citizenship.
PNXQ’s relationship with his Australian citizen father, and interaction with extended family remotely, are the primary grounds on which he claims a close and continuing association with Australia. In isolation, these factors alone are insufficient to support a finding that the Applicant has an intention to reside in Australia or a close and continuing association with
15 T11, p.75-79.
Australia. The Respondent submits that to satisfy this requirement there has to be more than an association with family, and that a distinction is drawn between a close association with Australian citizens and Australia.
PNXQ’s father has applied for an internal transfer at his company. His expectation of relocating to Australia, while not definite, is credible and realistic given he has previously worked for the same multinational in Australia and has been relocated internationally on multiple occasions during his career. I accept the father is genuine in his intention to reside in Australia in the foreseeable future.
Having regard to the Applicant’s family unit, and the other considerations set out in CPI 4, I am satisfied that the father has genuine plans to reestablish himself in Australia which, coupled with his existing ties to Australia, underscore the strong likelihood that he and PNXQ will reside in Australia.
On balance, I am satisfied that PNXQ is usually resident overseas and living with a responsible parent who is an Australian citizen who has an intention to reside in Australia should the application be approved, and satisfies the policy guidance in paragraph 7 of CPI
4. It follows that it is not necessary to consider the discretion conferred by s 24(2) to refuse to approve PNXQ becoming an Australia citizen at this time.
CONCLUSION
PNXQ meets the eligibility requirements in section 21(5) of the Act as a person applying for citizenship under 18. I am satisfied that PNXQ and his responsible parent intend to reside in Australia, and it is not appropriate that the discretion to refuse the application be exercised.
DECISION
For the reasons outlined above, the reviewable decision is set aside and the matter remitted to the Respondent with a direction that PNXQ meets the requirements in subsection 21(5) of the Act and the discretion provided in subsection 24(2) not be exercised.
Date(s)ofhearing: 12 November 2024 Applicant:
Applicant’s Father on behalf of PNXQ (via Audio- Visual Link)
SolicitorsfortheRespondent:
C Warren, Sparke Helmore (via Audio-Visual Link)
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