Re Zlatanovski and Minister for Immigration and Citizenship
[2010] AATA 243
•7 April 2010
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2010] AATA 243
ADMINISTRATIVE APPEALS TRIBUNAL )
) No 2009/1388
GENERAL ADMINISTRATIVE DIVISION ) Re ANTONIO ZLATANOVSKI Applicant
And
MINISTER FOR IMMIGRATION AND CITIZENSHIP
Respondent
DECISION
Tribunal Mr John Handley, Senior Member Date7 April 2010
PlaceMelbourne
Decision The decision under review is set aside and in substitution IT IS DECIDED that the application for citizenship by conferral should be approved. (sgd) John Handley
Senior Member
CITIZENSHIP – citizenship by conferral – applicant aged under 18 when application made – whether applicant must be a permanent resident – whether discretion to refuse citizenship should be exercised ‑ application of Australian Citizenship Instructions 2007 – whether discretion fettered – whether cogent reasons exist to depart from policy – significant hardship or disadvantage – exceptional nature of applicant’s circumstances – decision set aside.
Australian Citizenship Act 2007 (Cth) s 21(2), (3), (4) and (5), s 24(2)
Australian Citizenship Amendment (Citizenship Test Review and Other Measures) Act 2009 (Cth) s 2, s 21(5)
Acts Interpretation Act 1901 (Cth) s 8(c) and (e)Administrative Appeals Tribunal Act 1975 (Cth) s 33, s 37
Shi v Migration Agents' Registration Authority (2008) 235 CLR 286
Drake v Minister for Immigration and Ethnic Affairs (1979) 24 ALR 577
Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634
K v Cullen (1994) 126 ALR 38
Minister for Immigration, Local Government and Ethnic Affairs v Gray (1994) 50 FCR 189
Re Control Investment Pty Ltd and Ors and Australian Broadcasting Tribunal (No 2) (1981)
3 ALD 88
ReLee v Department of Immigration and Ethnic Affairs (1989) 10 AAR 270
Re SNMX and Minister for Immigration and Citizenship [2009] AATA 539Re Pak and Department of Immigration and Citizenship [2010] AATA 157
Re Youm and Minister for Immigration and Citizenship [2010] AATA 158
Re Kim and Minister for Immigration and Citizenship [2010] AATA 197
Re Kim and Minister for Immigration and Citizenship [2010] AATA 198REASONS FOR DECISION
7 April 2010 Mr John Handley, Senior Member 1. The applicant was born on 30 January 1991. At the age of 6, he arrived in Australia with his parents, having travelled from his native Macedonia. He and his parents have lived in Australia since they entered on 23 April 1997 with the permission inherent in visas issued to them from time to time. The applicant currently has a temporary business visa (Class UC Sub-Class 457) which was granted on 20 September 2006. He has not been granted permanent residency.
2. On 24 November 2008 the applicant applied for citizenship. On 19 January 2009 a delegate of the Minister refused the application on the basis that the applicant failed to satisfy the residence requirement found in the Australian Citizenship Instructions 2007 (ACIs). The delegate conceded that the applicant was eligible to become an Australian citizen under s 21(5) of the Australian Citizenship Act 2007 (the 2007 Act). The delegate decided that the claim was defeated by the application of policy and decided to exercise the discretion available to him under s 24(2) of the 2007 Act to refuse the application.
3. By reason of the applicant being eligible for citizenship by conferral under s 21(5) of the 2007 Act, in the exercise of the Minister’s discretion under s 24(2) what is the correct or preferable decision?
LEGISLATION
4. Eligibility for Australian citizenship is determined under s 21 of the 2007 Act, which was amended by item 5 of Schedule 1 of the Australian Citizenship Amendment (Citizenship Test Review and Other Measures) Act 2009 (the 2009 Act). The amendments contained within Schedule 1 (which included s 21(5)) commenced on 9 November 2009 (refer Legislative Instrument F 2009 L04034). The application for citizenship was made on 24 November 2008. Therefore, the amended provisions are not applicable in these proceedings.
5. The applicant was under the age of 18 at the time he made his application for citizenship. That he turned 18 after that date is of no relevance. Therefore, s 21(5) of the 2007 Act, in existence before the amendments, is reproduced as follows:
Person aged under 18
(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.
6. Section 24(2), unamended by the 2009 Act, provides the Minister with discretion to refuse an application for citizenship and is in the following terms:
(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), (7) or (8).
The manner in which the discretion of the Minister is to be exercised is unfettered by the 2007 Act.
7. Chapter 5 of the ACIs provides that when exercising the discretion to refuse an application for citizenship by a person under 18, the decision maker should consider certain policy requirements. These will be discussed below.
8. The applicant and the Minister were both represented by counsel well credentialed in migration law. The hearing was confined to evidence from the applicant and his aunt. Extensive oral submissions were given at the conclusion of the hearing and written submissions were also lodged subsequently. In reaching my decision, I have had regard to the evidence heard and the extensive documentation lodged in these proceedings.
EVIDENCE
antonio zlatanovski
9. The applicant lodged a Statutory Declaration sworn 12 November 2009 which was received as Exhibit A1. He declared the following:
· He and his parents initially lived with an aunt and uncle in Melbourne until they were able to purchase their own home. He regarded his aunt and uncle as a second mum and dad. His three cousins, the children of his aunt and uncle, were regarded by him as the equivalent of brothers and sisters. He attended the same school as they did and they remain close friends.
· His sister, Kristina, was born on 12 July 1999 in Melbourne and has been granted Australian citizenship. The applicant has lived in Australia for a longer period than his sister. Despite being denied citizenship, he regards himself an Australian person, having lived his whole life with his sister. Since arriving in Melbourne 12 years ago, he has lived with his parents in Melbourne in the same community.
· He completed Year 12 in 2009 and at the time of the hearing was awaiting his results. His ambition was to become a member of the Australian Federal Police (AFP) but the absence of citizenship precludes him. He also wants to undertake basic security type courses to impress the AFP but is denied entry into courses of that type because of the absence of citizenship.
· He completed a school based apprenticeship with Reece Plumbing having worked for 11 hours per week. He obtained a Certificate II in logistics and transport.
· He and his family recently returned to Macedonia for a holiday to visit grandparents. He found communication difficult because of his poor command of the Macedonian language, both oral and written. He became aware of a very high unemployment rate and was also exposed to acts of violence by local gangs. A car bomb was detonated in a neighbourhood where he was staying.
· He would suffer hardship in the event that citizenship is denied. Having regarded Australia as his home, he feels as if his identity is being rejected both at a physical and emotional level.
10. In evidence the applicant adopted his statement without amendments and expanded it. He said that he has a number of close friends who have a wide ethnic background with whom he completed the majority of his primary and secondary education. He has an emotional attachment to those persons, his family, his extended family and his local community. He identifies himself as an Australian person and does not feel any different to his friends and close associates who are either Australian citizens or permanent residents. He was aware of the declaration that he was required to complete under Part 1 of his application for citizenship (T4, p 89). He said that he understood the declaration would require him to do the right thing by others and to respect different religious beliefs.
11. The applicant repeated in some detail the nature of the relationship that he has with his aunt and uncle. He learnt the English language with his cousins. His aunt and uncle assisted him financially and he maintains a close association with them.
12. The applicant has a strong connection with the local community. He has played soccer for a number of clubs and regularly socialises with members of his soccer team. He was a member of a school team in Year 10 which was a premier team in Melbourne and played in an interstate competition in Queensland. He is a member of a Macedonian Church in Footscray (having also attended Sunday School as a child) and attends church weekly or at least fortnightly.
13. The applicant said that he is prepared to contribute to Australia by employment as a policeman and by other means. He has never come under the notice of police or committed any offences. If, by denial of citizenship, his current visa is not renewed this year (when it is due to expire), he will be compelled to return to Macedonia where he does not have a home. He would lose his friends. He would have great difficulty communicating in the Macedonian language. He would have to live with his grandparents, who are elderly and do not speak English. His future would be uncertain because employment opportunities are negligible.
14. In cross examination the applicant said that although his father had poor English skills, he was able to communicate with him on a conversational basis. He also said that he does speak to his father using the Macedonian language but he is not able to effectively have a conversation with him.
15. In Macedonia, he said that his grandparents do not speak English but he has some cousins, aunts and uncles with whom he could communicate because they do have English language skills. However, the applicant was quick to point out that the relationship with those persons would be very different to the family members who reside in Australia and with whom he has spent most of his life. When referring to his relatives in Macedonia, he said most of them don't speak with my family. He also said that he was not aware whether his relatives in Macedonia were employed.
16. The applicant reaffirmed that in the event citizenship was granted he would apply to the AFP for employment. If citizenship is not granted he will seek work and acknowledged that he did have a qualification as a result of his employment with Reece Plumbing. He said he had not made any application for courses or employment pending the outcome of this application. Should it be unsuccessful and he remains in Australia on a visa, he will make an application through the Victorian Tertiary Admissions Centre for training to equip him for employment in transport and logistics. In Macedonia, he said that it was unlikely that he would obtain employment because of his poor Macedonian language skills and the minimal job opportunities. He said he was aware of persons who had tertiary qualifications and struggled to find any work. He acknowledged that he was not unemployable but said that it would be very difficult to obtain any employment. Additionally, he would need accommodation in Macedonia and it would be unlikely that he could afford it.
sonja zlatanovski
17. Mrs Zlatanovski is the applicant’s aunt. She has resided in Australia for 39 years and is an Australian citizen. She has three children aged 21, 17 and 10 all of whom are also Australian citizens.
18. Mrs Zlatanovski affirmed and adopted her Statutory Declaration (Exhibit A2). She said the applicant and his parents lived with her and her family when they first arrived in Australia. She has formed a special relationship with the applicant and treats him as her son and regards her home as his home. She said that the applicant was very close to her children, most of whom attended the same school as him. She was aware that he has many friends of differing nationalities and was highly regarded and well liked by his teachers.
19. In cross examination Mrs Zlatanovski said that the applicant would have a poor future if he returned to Macedonia. She said it was unlikely he would obtain employment because of the high rate of unemployment amongst Macedonian persons and because of his poor Macedonian language skills. She said she lived in Macedonia between 1990 and 1993 and was aware that tertiary qualified persons could not obtain employment commensurate with their academic skills and some were employed as shop assistants. She said she would guarantee that he would not obtain employment. She said the English language would be of no assistance to him and even if he were to attend a Macedonian University, the qualifications that he would obtain would not be recognised elsewhere.
20. She said that he is conversationally fluent in the Macedonian language but has basic knowledge of it only. In Macedonia he could get by.
21. In Macedonia, Mrs Zlatanovski said that the applicant's paternal and maternal grandparents each live in small homes and receive a modest pension being the equivalent of approximately $100 per month. She said they were poor and were required to grow their own vegetables. She said they would not be able to afford to support the applicant and most of his other relatives in Macedonia were unemployed. She recalled the applicant having told her that when he travelled to Macedonia about two years ago on a holiday, he felt like a stranger, having left the country when he was six years of age.
22. In the event that the applicant was denied citizenship and was forced to return to Macedonia, she and her family would be devastated. She understood that the applicant also would be devastated. She said that he regards himself as an Australian citizen, having lived in Australia for two years more than his sister, who had been granted citizenship. She was at a loss to understand why citizenship had not been conferred on him. She was also aware that the applicant did have a desire to work with the AFP but had learnt that he would not be eligible in the absence of citizenship. She understood that because he was approaching 19 years of age, he was no longer considered to be dependent on his parents' visa and whilst he might qualify for a student visa, neither he nor his family could afford the fees of tertiary education in Australia.
23. Mrs Zlatanovski said that the applicant's parents were present in the Tribunal precinct and was not aware why they were not being called to give evidence. She said that the applicant's father had improved his English language skills since undertaking a test under the auspices of the International English Language Testing System in April 2005 (Exhibit R1). He achieved a band score of 2.0 which was the equivalent of having great difficulty understanding spoken and written English. She said that the applicant's mother was able to speak, write and read the English language.
CONSIDERATION OF THE ISSUES
24. An administrative Tribunal is compelled to make the correct or preferable decision on the material that is before it. The Tribunal’s role is not to determine whether the decision under review was correct or preferable on the material before the decision-maker (Drake v Minister for Immigration and Ethnic Affairs (1979) 24 ALR 577 at 589). That is not to say that the decision under review is irrelevant or that the Tribunal must look at the matter entirely de novo (Re Control Investment Pty Ltd and Ors and Australian Broadcasting Tribunal (No 2) (1981) 3 ALD 88 at 92-93). The Tribunal will have access to the same documents that were before the decision‑maker. Section 37(1) of the Administrative Appeals Tribunal Act 1975 (the AAT Act) requires the decision-maker to provide a statement of findings and a reference to the materials upon which those findings were made. Section 33 also empowers the Tribunal to inform itself as it thinks appropriate (Re Control Investment). On a more contemporary note, Kirby J in Shi v Migration Agents' Registration Authority (2008) 235 CLR 286 at 299 stated:
…But ultimately, it was for the Tribunal to reach its own decision upon the relevant material including any new, fresh, additional or different material that had been received by the Tribunal as relevant to its decision. In effect, this was no more than a consequence of the Tribunal's obligation to conduct a true merits review.
25. The applicant’s circumstances as presented at the hearing and the support for him were denied to the primary decision maker and the delegate. Findings made by a Tribunal in a de novo hearing often differ from the findings made by a primary decision maker on the documents then presented. This application is no exception and as Gray J concluded in ReLee v Department of Immigration and Ethnic Affairs (1989) 10 AAR 270 at 276 the decision maker in the present application may well have reached a different conclusion if he had had the benefit of the opportunity that I had in reviewing the applicant’s circumstances and regard to the evidence heard, the documents lodged and the submissions of his counsel.
THE APPLICANT IS ELIGIBLE FOR CITIZENSHIP UNDER S 21(5) OF THE 2007 ACT
26. The applicant has applied for citizenship by conferral under s 21(5) of the 2007 Act. Section 21(5) provides that a person is eligible to become an Australian citizen if the person was under the age of 18 at the time the application was made. The applicant was aged 17 when he applied for citizenship on 24 November 2008. I am satisfied that he is eligible to be granted Australian citizenship under s 21(5) of the 2007 Act as it applied in 2008.
SHOULD THE DISCRETION UNDER S 24(2) TO REFUSE TO APPROVE CITIZENSHIP BE EXERCISED?
27. Despite an applicant being eligible under s 21(5) of the 2007 Act, the Minister may refuse to grant Australian citizenship under s 24(2). The ACIs set out guidelines for exercising the discretion.
28. The Minister is entitled to adopt a policy that will guide him in exercising the discretion. The Tribunal is obliged to apply the policy unless there are cogent reasons not to. In ReDrake v Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634, Brennan J said at 645:
…the Tribunal would ordinarily apply that policy in reviewing the decision unless the policy is unlawful or unless its application tends to produce an unjust decision in the circumstances of the particular case.
29. The Minister has the political responsibility for the making of policy. However, the Tribunal has an adjudicative responsibility to determine whether the policy is lawful in order to determine whether the policy is appropriate for application by the Tribunal in making its own decision on review (Re Drake (No 2) at 645).
30. In Minister of Immigration, Local Government and Ethnic Affairs v Gray (1994) 50 FCR 189, the Full Court of the Federal Court considered the application of policy under the Migration Act. The Court reviewed a number of earlier decisions including Drake and Re Drake (No 2) and decided that policies must be consistent, either expressly or by implication, with legislation but cannot be expressed to fetter the exercise of the relevant discretion (at 206).
31. Chapter 5 of the ACIs is concerned with citizenship by conferral. The policy provides assistance to the Minister in order to determine whether to approve or refuse an application by a person to become an Australian citizen (refer s 24(1) and (2) of the 2007 Act).
32. Chapter 5 provides that applicants aged 16 years and over and under the age of 18, would usually be approved under s 24 if they meet the following policy requirements:
·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 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.
33. Counsel for the applicant submitted that the last four dot points above are satisfied by the applicant. It was submitted that the first dot point, namely that an applicant be a permanent resident, offends the legislation because s 21(5), as opposed to other subsections within s 21, creates no obligation to be a permanent resident. Counsel relied on the decision in Re SNMX and Minister for Immigration and Citizenship [2009] AATA 539 where in a similar case, I decided that the requirement in policy for an applicant under the age of 18 years to be a permanent resident was beyond power.
34. With respect to the second dot point which requires the applicant to satisfy the residence requirements, counsel for the applicant submitted (and the respondent agreed) that the residence requirements is a reference to s 22 of the 2007 Act. It was submitted that the applicant clearly qualified under s 22(1)(a) and (b). Subsection (1)(c) provides that the residence requirement for the purposes of s 21 is satisfied if 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.
35. The applicant was not a permanent resident as defined in s 5 and by reason of the earlier submission of such a requirement being beyond power, s 22(1) properly constructed would cause subsection (1)(c) to be irrelevant for the purposes of the policy.
36. Alternatively, the applicant’s representative submitted that an applicant need not meet the residence requirements if significant hardship or disadvantage was caused. It was submitted that such consequences confronted the applicant. Therefore, the applicant should be exempt from satisfying the residence requirements.
37. Counsel for the respondent submitted that the policy was lawful. The ACIs provide guidance and direct that the policy should not be applied inflexibly. The ACIs allow for applications to be approved even if the policy requirements are not satisfied. The Minister’s discretion would not be fettered by adopting or applying a policy which requires an applicant over the age of 16 and under the age of 18 to be a permanent resident, however, permanent residency could be waived. The requirement to satisfy the residency requirements could also be waived if significant hardship or disadvantage was caused.
38. Put another way, if the applicant’s case was to fail because he was not a permanent resident, a discretion remained available to the Minister to consider whether there were circumstances causing significant hardship or disadvantage to an applicant. Additionally, decision makers were required to consider the full circumstances of the case to determine whether the application nevertheless warrants approval because of the exceptional nature of the circumstances. The circumstances would need to be very unusual to warrant approval of an application outside policy (T2, p 13).
39. The Statement of Facts and Contentions lodged by both parties prior to the commencement of the hearing, the opening submissions and the closing submissions contained extensive references to the issue of permanent residency. The submissions extended to a comparison of the 2007 Act and the 2009 amendments and the Second Reading Speeches with respect to each Act. The applicant relied on the 2009 Act which clearly specified that, unlike its predecessor, permanent residency at the time the application is made and at the time of the Minister’s decision, is a requirement of eligibility under s 21(5) as amended.
40. Both parties referred to the decision in Re SNMX. Although that case involved consideration of a different policy, it also contained a reference to permanent residency for persons under the age of 18 applying for citizenship.
41. For reasons which I will come to shortly, this issue need not be considered in any detail save that I do not resile from the conclusions I reached in Re SNMX.
42. The language and construction of the first part of Chapter 5 demands a comment. The words introducing the seven dot points record that persons aged between 16 and 18 years of age would, usually be approved under s 24 if the policy requirements are met. The word usually suggests that there is no mandatory requirement to meet the seven dot points. That is to say, an inability to meet the criteria against the dot points would not cause the application to be refused.
43. If the policy was to be interpreted and applied as if it were legislation, the manner in which the criteria against the seven dot points are recorded would suggest that all of the criteria would need to be satisfied. The word or does not conclude the criteria against each dot point but equally the word and is also absent. However, the concluding words in the introductory paragraph, namely meet the following policy requirements and the words in the first line of the paragraph immediately below namely does not meet the policy requirements above suggests that all of the seven policy requirements need to be satisfied.
44. It would therefore follow that because the applicant is not a permanent resident – without ignoring the submission of the applicant that such a requirement would be beyond power ‑ the applicant would not be able to meet the policy requirements. In the alternative, if there was validity in the requirement to be a permanent resident, it would also follow that the applicant could not satisfy the residence requirements because there would consequently be an inability to satisfy s 22(1)(c).
45. Nonetheless, each counsel submitted that it was permissible to consider whether the inability to meet the residence requirements would cause significant hardship or disadvantage (as set out in Attachment B). However, the policy requirement of permanent residence (the first dot point and inherent in the second dot point) need not be met if significant hardship or disadvantage would be caused. It follows, and I agree the word usually militates against a construction imposing a mandatory obligation to meet all seven dot points.
46. Additionally, or in the alternative, the inability to meet the policy requirements is ameliorated if an applicant can demonstrate exceptional circumstances (stated to be very unusual). On this basis, the application would warrant approval.
47. The words exceptional and unusual were considered in the context of the Commonwealth Marriage Act 1961 in K v Cullen and Others (1994) 126 ALR 38. The Court held that the words exceptional and unusual mean out of the ordinary in the circumstances of an applicant. The Shorter Oxford Dictionary defines the word unusual as meaning not usual, uncommon, exceptional.
48. I have considered the parties’ submissions and the relevant case law dealing with the manner in which discretion should be exercised. I am satisfied that the policy set out in the ACIs is lawful. While it prescribes factors that should be taken into account, it does not direct that applications for citizenship must be refused because each policy requirement has not been satisfied. The policy provides the flexibility necessary to allow the decision maker to make the correct or preferable decision having regard to the circumstances of the particular case. Absence of permanent residency will not cause an application to be fatal.
49. Attachment B (refer T3, p 59-60) records the criteria with respect to significant hardship and disadvantage. It also defines the words significant, hardship and disadvantage. The attachment states that persons would normally be required to demonstrate some or all of the circumstances described. Broadly, the circumstances include inability to gain employment (where it is restricted to Australian citizens and where comparable or alternative employment is not reasonably available), difficulty in international travel because of inability to obtain a passport from a country of origin and academic or other potential (such as sporting) is limited or restricted to Australian citizens. I will return to the applicant’s circumstances to determine whether the failure to satisfy the residence requirements would cause significant hardship or disadvantage.
Significant Hardship or Disadvantage or Exceptional Circumstances
50. At the date of application the applicant was 17 years of age and had lived in Australia for 11 years. He has subsequently lived here with his parents who are both lawfully present, although they do not have the status as permanent residents. His younger sister is a citizen of Australia by birth pursuant to s 12(1)(b) of the 2007 Act. She has lived the whole of her life in Australia with her brother. (Without dismissing the relevance of the legislation and the differing circumstances between the applicant and his sister, is it not a paradox that he has lived in Australia longer than his sister but she has been permitted citizenship whereas he has been denied?)
51. The applicant has lived in Australia ‑ in his local community with which he is familiar, where he completed his primary and secondary education and where the church that he frequently attends is located. He is a member of a local soccer club where he is a regular player and he also socialises with his team mates. He has played soccer interstate as a member of a school team.
52. The applicant is fluent in the English language, he understands the responsibilities of citizenship and his obligations as a member of the Australian community. He is, in my view, of good character and is likely to continue to reside in Australia. He would wish to be a member of the AFP but is denied in the absence of being an Australian citizen. That he would wish to be a member of the law enforcement community is to his credit. His work ethic is also, in my view, beyond doubt, having completed a school based apprenticeship with Reece Plumbing.
53. The applicant also has a close relationship with his aunt, uncle and cousins who he regards as his extended family. His aunt who gave evidence in these proceedings regards him as another son.
54. The applicant currently resides in Australia under a visa which will expire in September 2010. There is nothing to indicate that it will be extended. If he is compelled to return to Macedonia he will be denied continuing day–to‑day association with his parents and his sister who, as an Australian citizen, is entitled to remain. He will be denied continuing association with his aunt, uncle and his cousins and with his friends who are many in number that he has acquired by his association locally with his school, his soccer club and his church. Returning to Macedonia after an absence of almost 13 years in Australia, will cause him to engage in a language which he has largely forgotten, reside with relatives that he barely knows and be exposed to levels of violence (which he observed on a recent visit). He will also have considerable difficulty obtaining employment and will not have access to a social security system which would at least provide a basic level of income.
55. Having observed the applicant in evidence and having heard from his aunt and read the documents tendered in his support, I am satisfied that the applicant does have a genuine wish to become a member of the Australian community and agrees to honour the obligations imposed upon him as a citizen. I believe that he gave his evidence in a truthful manner without exaggeration. Having to return to Macedonia would expose him to a custom and culture with which he is largely unfamiliar. He would be economically disadvantaged and would be denied the opportunities that are available to him in Australia. Permitting him to remain here will ensure that his relationships with many persons will be unaffected, that he will enjoy the fellowship of his family, both immediate and extended. As a citizen he will be entitled to apply for membership of the AFP or many other positions which are denied to non citizens.
56. The documents lodged by the respondent contain a number of reports from the applicant's primary and secondary school, together with references and photographs. Whilst one or two teachers commented that he did not, from time to time complete his homework, he otherwise was observed as being committed, hardworking and courteous. Two weeks before this application was made, one of his teachers recorded in a reference (T4, p148):
Antonio always demonstrated very positive behaviours in all areas of his learning and although a young child showed a remarkably high level of maturity and character. He was always held in very high regard by both his teachers and peers which often resulted in him receiving numerous awards.
Antonio was always gentle in nature and totally dedicated to learning which made him an excellent role model for other children.
57. In 2003, when he was 12 years of age, one of his primary school teachers awarded him a certificate for always finding humour and having a positive attitude (T4, p186). Those observations indicate to me that those characteristics of personality, recorded in similar terms in the secondary school reports and by his referees, are longstanding and reassure me that he is worthy of Australian citizenship.
58. Having regard to the duration of the applicant’s residence in Australia (and conversely the period of the applicant’s absence from Macedonia), the lack of employment opportunities, accommodation and the economic insecurity that he would confront, I am satisfied that if he was compelled to return to Macedonia he would suffer significant disadvantage or hardship. The disadvantage and hardship would be fuelled by the absence of support from his family and friends. The relationships that he currently enjoys in Australia would no doubt end. Of particular concern is the possibility of losing the relationship with his sister, who is in fact an Australian citizen.
59. These features point to an applicant satisfying the personal needs criteria within Attachment B (T3, p 60). I am therefore satisfied that denial of citizenship would cause him significant hardship and disadvantage.
60. The applicant's circumstances are also of an exceptional nature. He has lived here for almost 13 of his 19 years and has a sense of belonging. His education was obtained here, and he is fluent in the English language. He has declared his commitment to Australia, acknowledged his obligations and sought employment in law enforcement which is currently denied. His sister, extended family and many friends are Australian citizens.
61. He is, virtually, an Australian, by his commitment and allegiance. He has no affinity with Macedonia. His circumstances as demonstrated by his past achievements and his aspirations are commendable. His circumstances are also out of the ordinary (refer K v Cullen – [47] above). Rather than the applicant be at risk of having to return to Macedonia (refer to [54] above), his circumstances, being out of the ordinary entitle him to the benefits and membership of the Australian community as a citizen.
62. I am satisfied that this application warrants approval outside the policy set out in the ACIs. Put another way, the applicant has demonstrated cogent reasons to depart from application of the policy (Re Drake (No. 2) at 645).
63. The decision under review is set aside and in substitution I am satisfied that the application for citizenship by conferral should be approved.
NOTE
On 9 March, when this decision was under final proofing, the Melbourne District Registrar received a letter from the Minister's solicitors, attaching two decisions of the Tribunal delivered on 2 and 3 March respectively in the Sydney Registry – Re Youm and Minister for Immigration and Citizenship [2010] AATA 158 and Re Pak and Department of Immigration and Citizenship [2010] AATA 157. The letter recorded that it was contended that both decisions support the contentions of the Minister in the present application and it is presumed, although not recorded in the letter, that the Registrar would bring it and the attachments to my attention.
On 30 March 2010, another letter was received from the Minister’s solicitors notifying of decisions in Re Kim and Minister for Immigration and Citizenship [2010] AATA 197 and 198, each delivered on 24 March 2010.
In those decisions, so far as may be gleaned from them, applications were made for citizenship under s 21(5) as existing prior to the 2009 amendments. Each decision records the factual circumstances of each applicant, the policy requirements, the application of the policy and the discretionary process undertaken by each Member. The conclusions reached were clearly open to each Member but having regard to the circumstances of this application, both legal and factual, I have not been influenced to depart from the conclusions I have reached or the manner in which I exercised my discretion.
I certify that the sixty-three [63] preceding paragraphs are a true copy of the reasons for the decision herein of
Mr John Handley, Senior Member
Signed: Olympia Sarrinikolaou
Legal Assistant
Date of Hearing 10 December 2009
Date of last submission 22 January 2010
Date of Decision 7 April 2010
Counsel for the Applicant Mr J Gibson
Solicitor for the Applicant Clothier Anderson and Associates
Counsel for the Respondent Mr W Mosely
Solicitor for the Respondent Clayton Utz
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