Reddy and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Citizenship) - [2020] AATA 4955

Reddy and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Citizenship) [2020] AATA 4955 (27 November 2020)
Division:GENERAL DIVISION
File Number:2020/1271
Re:Samren Reddy
APPLICANT

AndMinister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
RESPONDENT

DECISION
Tribunal:Member D Mitchell
Date:27 November 2020
Place:Brisbane

The Tribunal affirms the decision under review.
..........[SGD]......................................................
Member D Mitchell
CATCHWORDS
CITIZENSHIP – citizenship by conferral – person aged under 18 years old – discretion to approve or refuse to approve citizenship application – decision under review affirmed
LEGISLATION
Australian Citizenship Act 2007 (Cth)
Australian Citizenship Regulations 2016 (Cth)
CASES
Drake v Minister for Immigration and Ethnic Affairs (1979) 46 FLR 409
G v Minister for Immigration and Border Protection [2018] FCA 1229
Hneidi v Minister for Immigration and Citizenship [2010] FCAFC 20
Minister for Home Affairs v G [2019] FCAFC 79
Re Drake and Minister for Immigration and Ethnic Affairs (No. 2) (1979) 2 ALD 634
Teng and Minister for Immigration and Citizenship [2012] AATA 388
SECONDARY MATERIALS
Department of Immigration and Border Protection, Citizenship Policy
Department of Immigration and Border Protection, Citizenship Procedural Instructions
REASONS FOR DECISION
Member D Mitchell
27 November 2020
INTRODUCTION

Mr Samren Reddy (the Applicant) was born in the United Kingdom in November 2003.[1] He arrived in Australia on 16 July 2012 as a dependent on his father’s temporary 457 visa.[2] On 24 February 2016, the Applicant became a permanent resident when he was granted a permeant 186 visa.[3] The Applicant departed Australia on 27 August 2016 and has not returned.[4]
[1]    Exhibit 1, T Documents, T4, page 48, Applicant’s Birth Certificate.
[2]     Exhibit 1, T Documents, T7, page 79, Decision Record.
[3]     Exhibit 1, T Documents, T7, page 79, Decision Record
[4]     Exhibit 1, T Documents, T7, page 79, Decision Record.
On 20 June 2018, aged 14, the Applicant, was included in his father’s application for Australian citizenship by conferral pursuant to section 24(1) of the Australian Citizenship Act 2007 (Cth) (the Citizenship Act).[5]
[5] Exhibit 1, T Documents, T4, pages 11-45, Form 1290: Application for Australian Citizenship by Conferral – General Eligibility 1300t (Electronic lodgement).
On 5 February 2020, a delegate of the Respondent refused the Applicant’s father’s application for Australian citizenship by conferral.[6]
[6] Exhibit 2, Respondent’s Statement of Facts, Issues and Contentions, page 3, paragraph 6.
While the Applicant met the requirements of section 21(5) of the Citizenship Act, on 5 February 2020 a delegate of the Respondent exercised the discretion under section 24(2) of the Citizenship Act to refuse the application. The delegate was not satisfied that the Applicant met the policy guidelines applicable to children aged under 16 years of age when applying in their own right in circumstances, where his father’s application had been refused.[7]
[7] Exhibit 1, T Documents, T7, pages 74-83, Notification of Refusal of an Application for Australian Citizenship by Conferral and Assessment of Application attaching the Decision Record and Review Rights.
On 28 February 2020, the Applicant applied to the Tribunal for review of the Respondent’s decision.[8]
[8] Exhibit 1, T Documents, T2, pages 4-9, Application for Review of Decision.
ISSUES
The issue before the Tribunal is whether the discretion under section 24(2) of the Citizenship Act should be exercised to refuse to approve the Applicant becoming an Australian citizen despite him having met the requirements under section 21(5) of the Citizenship Act.
THE LAW
Section 21 of the Citizenship Act sets out that a person may make an application to the Minister to become an Australian citizen and provides the eligibility requirements. Relevantly for persons aged under 18 at the time their application is made, section 21(5) provides:
(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 of the Citizenship Act provides that the Minister must approve or refuse to approve a person’s application to become an Australia citizen and sets out the circumstances where the Minister may or must not approve such an application. Relevantly:
(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).
……
The discretion in section 24(2) of the Citizenship Act is unfettered, there are no legislative guidelines as to how and when it should be exercised. Consequently, the Department has put in place policies, procedures and instructions to assist decision makers by providing guidance on the interpretation of, and the exercise of powers under the Citizenship Act and the Australian Citizenship Regulations 2016.
The Tribunal was referred to relevant Chapters of the Citizenship Policy (the Policy) and the Revised Citizenship Procedural Instructions (CPIs).
Relevantly Chapter 7 of the Citizenship Policy deals with Citizenship by conferral and provides:[9]
[9]     Exhibit 1, T Documents, T9, pages 85-89, Citizenship Policy Chapter 7: Citizenship by conferral.
The discretion in s24(2) to refuse to approve an applicant from becoming an Australian citizen despite being eligible under s21(5) would usually be exercised where the applicant meets the legislative eligibility criteria under s21(5) (being aged under 18 years and being a permanent resident at the time of application and decision), but 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 in this chapter.[10]
[10]    Exhibit 1, T Documents, T9, page 87, Citizenship Policy Chapter 7: Citizenship by conferral.
…..
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 under 18 at the time of the decision on the application and the child is living in Australia. Refer to Chapter 22 – Best interests of the child.[11]
……
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 consented 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 a child under 16 applies on the same form and at the same time as a responsible parent, and that parent is refused, the child must be assessed in their own right.[12]
[11]    Exhibit 1, T Documents, T9, page 87, Citizenship Policy Chapter 7: Citizenship by conferral.
[12]    Exhibit 1, T Documents, T9, page 88, Citizenship Policy Chapter 7: Citizenship by conferral.
Chapter 7 of the Citizenship Policy further provides that applicants aged 16 or 17 would not usually be approved under section 24 of the Citizenship Act unless they are permanent residents at the time of application and decision and also satisfy the residence requirements (unless they would suffer significant hardship or disadvantage if they had to meet this requirement).[13]
[13] Exhibit 1, T Documents, T9, page 89, Citizenship Policy Chapter 7: Citizenship by conferral.
Chapter 3 of the Citizenship Policy provides definitions used for citizenship and relevantly provides the following guidance in relation to what is considered to be significant hardship or disadvantage detriment:[14]
Significant hardship or disadvantage/detriment
…….
In making an assessment of whether a person would suffer significant hardship or detriment/disadvantage, the words have their usual dictionary meaning. The Macquarie Dictionary Fifth Edition makes the following definitions:
·significant – important; of consequence
·hardship – a condition that bears hard upon one; severe toil, trial, oppression, or need
·disadvantage – absence or deprivation of advantage; any unfavourable circumstance or condition
[14]    Exhibit 1, T Documents, T9, pages 85-86, Citizenship Policy Chapter 3: Significant hardship or disadvantage/      detriment.
·          detriment – loss, damage or injury
·          economic – relating to the production, distribution, and use of income and wealth.
Personal needs and personal wants
There is a difference between personal needs and personal wants in respect of whether a person’s circumstances constitute ‘significant hardship or disadvantage’.
Personal needs relate to situations which would give rise to significant hardship or disadvantage if a person could not meet that need. For example, if a person could not find any employment, and was unable to adequately financially support themselves or their family.
Personal wants are aspirations and generally do not constitute hardship (that is, the right to vote, election to Parliament, eligibility for HECS-HELP, representing Australia internationally in academics or sport).
Australian citizenship is not a requirement to study in Australia at the primary or secondary levels. Australian universities may admit students who are not Australian citizens however eligibility for Commonwealth supported place may be limited to Australian citizens or permanent humanitarian visa holders.
……
For conferral
People would normally be required to demonstrate some or all of the following circumstances:
·inability to gain employment on the grounds that the employment is restricted to Australian citizens, and that comparable or alternative employment is not reasonably available
·          difficulty of international travel because the person cannot obtain a passport         from their country of nationality/citizenship, or are unable to use a passport         issued by that country for safety or similar reasons or cannot obtain an      alternative travel document
·          academic (for example, research, academic scholarship) or other (sporting,         etc) potential is being limited or restricted, because the opportunities to reach          that potential is available only to an Australian citizen, to the extent that it causes significant hardship.
Applicants would need to demonstrate that not having citizenship is the only or major cause for the significant hardship or disadvantage. Each application will need to be assessed on its merits with reference to the evidence provided and all the circumstances of the case to determine whether the person’s lack of Australian citizenship is the only or major cause of the significant hardship or disadvantage.
Citizenship Procedural Instructions 4 (CPI 4) relevantly provides that for children aged 15 years and under at the time of application a relevant factor in making a decision under section 24(2) of the Citizenship Act is whether the child is usually resident overseas and living with a responsible parent who is an Australian citizen and who consents to the application.[15]
[15] CPI 4 – Australian Citizenship by Conferral – Person under 18, page 6, paragraph 7.1.
CPI 4 provides that for children aged 16 or 17 years at the time of application, that the amount of time the child has spent in Australia prior to lodging an application for citizenship by conferral is relevant in in making a decision under section 24(2) of the Citizenship Act. CPI 4 relevantly provides:[16]
………
A sufficient period is usually two years residence in Australia immediately prior to the application. This would usually mean that the applicant would have attended at least 12 months schooling in Australia and a decision maker may on that basis be satisfied that the person:
·Understands the nature of the application;
·     Possesses a basic knowledge of English; and
·     Has an adequate knowledge of Australia and the responsibilities and        privileges of Australian citizenship.
………
[16]    CPI 4 – Australian Citizenship by Conferral – Person under 18, page 7, paragraphs 9 and 9.1.
While the Tribunal is not bound by policy, to aid consistency, it will usually be taken into account and followed unless there are cogent reasons not to.[17]
[17] Drake v Minister for Immigration and Ethnic Affairs (1979) 46 FLR 409; Re Drake and Minister for Immigration and Ethnic Affairs (No. 2) (1979) 2 ALD 634 at 639-645.
It is noted that with respect to whether the Tribunal should apply policy, in Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634, Brennan J stated at page 645:
In my view, the Tribunal, being entitled to determine its own practice in respect of the part which ministerial policy plays in the making of Tribunal decisions, should adopt the following practice.
When the Tribunal is reviewing the exercise of a discretionary power reposed in a Minister, and the Minister has adopted a general policy to guide him in the exercise of the power, the Tribunal will 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. Where the policy would ordinarily be applied, an argument against the policy itself or against its application in the particular case will be considered, but cogent reasons will have to be shown against its application, especially if the policy is shown to have been exposed to parliamentary scrutiny.
The lawfulness of the predecessors to the CPI’s were examined in the decision of G v Minister for Immigration and Border Protection [2018] FCA 1229 and further on appeal by the Full Federal Court in the decision of Minister for Home Affairs v G [2019] FCAFC 79 (MHA v G). The Full Federal Court considered whether the following bolded words should be considered to be an unlawful fettering of the Respondent’s discretion under section 24 of the Citizenship Act in relation to particular child applications under 16:[18]
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 the application and decision and also meet the following policy guidelines:
…..
·Are under 16 when applying, 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 – see section 5.17 Ministerial discretion – significant hardship or disadvantage (s22(6)) or
…..
[18] Minister for Home Affairs v G [2019] FCAFC 79 at [44].
The Full Federal Court held on appeal that the primary judge erred in concluding that the bolded words above were inconsistent with the Citizenship Act. As such in making an independent assessment of the material before it, while not bound to follow the Ministers policy or CPI’s, the Tribunal must take them into account and give them the appropriate weight.[19]
[19] Hneidi v Minister for Immigration and Citizenship [2010] FCAFC 20.
EVIDENCE
At Hearing the Applicant was represented by his father Mr Anandhan Reddy. Mr Reddy gave evidence under affirmation.
At Hearing Mr Reddy told the Tribunal that initially when he applied for his Australian citizenship he had not intended to also apply for his son. He knew his son was not present in Australia. He said that based on the forms it seemed appropriate for him to make the application on his son’s behalf at that time.
Mr Reddy told the Tribunal that his son was settled into school and life in Brisbane however he was offered a scholarship in the United Kingdom (UK) which was too good to refuse. Consequently, the Applicant and his mother moved back to the UK in August 2016. Mr Reddy told the Tribunal that it is their intention to make Australia their home and that at the conclusion of the Applicant’s schooling he and his mother will return to Australia.
Mr Reddy told the Tribunal he understands that when the Applicant returns to Australia he will be considered an international student for university purposes and they are aware they will need to pay his university fees. He said that is not an issue. His thought process was that, if it was appropriate to apply for the Applicant’s Australian citizenship at the same time he was making his application he should do so to save his son having to worry about it later.
Mr Reddy did not contend that the Applicant would experience significant hardship or disadvantage if he was not granted Australian citizenship at this time.
Mr Reddy said he realised that should his application for Australian citizenship be refused that it was likely so would his sons.
Respondent’s Contentions
The Respondent contended that not only is Policy a relevant consideration for the Tribunal but that the Tribunal would need to be satisfied of cogent reasons before it decides not to apply the Policy.[20]
[20] Exhibit 2, Respondent’s Statement of Facts, Issues and Contentions, page 8, paragraph 23.
The Respondent contended that the Policy relating to children aged 16 and 17 years old should be applied by the Tribunal as the Applicant will be 17 years old at the time of decision. The Respondent sought to rely on the decision of Senior Member Toohey in Teng and Minister for Immigration and Citizenship [2012] AATA 388 at paragraphs 20-21.[21]
[21] Exhibit 2, Respondent’s Statement of Facts, Issues and Contentions, pages 8-9, paragraph 24.
The Respondent contended the Applicant did not meet the residence requirements and as no evidence was advanced in relation to significant hardship or disadvantage resulting from him not being granted Australia citizenship, he did not meet the Policy requirements.[22]
[22] Exhibit 2, Respondent’s Statement of Facts, Issues and Contentions, pages 9-10, paragraphs 25-28.
The Respondent contended that the Applicant also does not satisfy the Policy with respect to children under 16 applying for Australian citizenship as he was residing outside of Australia with his mother who is not an Australia citizen and that no evidence was advanced in relation to significant hardship or disadvantage resulting from him not being granted Australian citizenship.[23]
[23] Exhibit 2, Respondent’s Statement of Facts, Issues and Contentions, page 11, paragraph 30.
The Respondent contended that the factors that are relevant to a consideration of the best interests of the child are not relevant in the Applicant’s case as he was not living in Australia.[24]
[24] Exhibit 2, Respondent’s Statement of Facts, Issues and Contentions, page 10, paragraph 29.
CONSIDERATION
It is not in contention that the Applicant met the requirements of section 21(5) of the Citizenship Act at the time that his application for Australian citizenship was made, nor that the Applicant has been absent from Australia since August 2016. What is in contention is whether or not the discretion in section 24(2) of the Citizenship Act should be exercised to refuse his application for Australian citizenship.

Which Policy and CPI’s should be considered in relation to this matter is academic. The starting principle for both the Policy and CPI’s in relation to determining applications made by permanent resident children under 15 and those aged 16 and 17 years of age both relate to the Applicant being present in Australia and considerations regarding how long they have resided in Australia in at least the two years prior to making an application for Australian citizenship. Where residence is not satisfied the Tribunal must consider whether the Applicant would be subject to significant hardship or disadvantage if his application for Australian citizenship was refused.
Based on the evidence before the Tribunal and that provided at Hearing by Mr Reddy, the Tribunal considers that the Applicant does not meet the Policy and CPI considerations in relation to the discretion in section 24(2) of the Citizenship Act not being applied. The Applicant has not been present in Australia for just over 4 years and is unlikely to return for perhaps another two years or so while he completes his secondary schooling. The Applicant is not residing overseas with a parent who is an Australian citizen. Further, while not granting the Applicant Australian citizenship at this time will mean that he will need to make a further application at a time in the future, there is no evidence that such a decision would cause the Applicant significant hardship or detriment. To the contrary the Applicant is in the fortunate position of having supportive parents who clearly put his education and future first.
As the Applicant is not present in Australia the Tribunal is not required to consider the best interest of the child considerations.
The Tribunal considers that the Applicant does not meet the policy, guidelines, procedures and instructions in relation to granting Australian citizenship to persons aged under 18 (regardless of the specific age based consideration) at the time of application and as such notes the discretion in section 24(2) of the Citizenship Act would usually be exercised to refuse to approve an applicant from becoming an Australian citizen.
As set out above, it is settled legal principle that policy will be followed unless there are cogent reasons for it not to be followed. The Tribunal has not had any evidence placed before it that would allow it to be satisfied that reasons exist for the policy, guidelines, procedures and instructions not to be exercised.
CONCLUSION
In taking all of the circumstances into account, the Tribunal finds that the Applicant does not meet the Policy and CPI considerations as they relate to applications made by children under 18 years old in order for his application for Australian citizenship to be granted. Consequently, the Tribunal finds it is appropriate for the discretion in section 24(2) of the Citizenship Act to be exercised.
Accordingly, the decision under review is affirmed.

I certify that the preceding 38 (thirty-eight) paragraphs are a true copy of the reasons for the decision herein of Member D Mitchell

............[SGD].............................
Associate
Dated: 27 November 2020

Date of Hearing: 12 November 2020

Representative for the Applicant:

Solicitor for the Respondent:

Mr Anandhan Reddy

Mr Jake Kyranis

Sparke Helmore