Reynolds and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Citizenship) - [2021] AATA 1146

Reynolds and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Citizenship) [2021] AATA 1146 (5 May 2021)
Division:GENERAL DIVISION
File Number(s): 2020/6389
Re:Lucy Marie Reynolds
APPLICANT

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

DECISION
Tribunal:Chris Puplick AM, Senior Member
Date:5 May 2021
Place:Sydney

The reviewable decision is set aside, and the matter is remitted to the Respondent for reconsideration in line with the findings of the Tribunal that the Applicant has both a close and continuing association with Australia and an intention to reside in Australia.
..................................[sgd]......................................
Chris Puplick AM, Senior Member
CATCHWORDS
CITIZENSHIP – application for Australian citizenship by conferral – refusal of citizenship – does not have an intention to reside, or maintain a close and continuing association with Australia – application of Citizenship Procedural Instructions – applicant under 18 at the time of application – close and continuing association with Australia – best interest of the child assessments – decision under review set aside and matter remitted
LEGISLATION
Australian Citizenship Act 2007 (Cth) ss 21, 23A, 24 and 26
CASES
Ahmadi and Minister for Immigration and Border Protection (Citizenship) [2017] AATA 1086
Beyan and Minister for Immigration and Border Protection [2015] AATA 256
Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634
Fenn and Minister for Immigration and Multicultural Affairs [2000] AATA 931
Gbojueh v Minister for Immigration and Border Protection [2014] FCA 883
Haeri and Minister for Immigration and Citizenship [2009] AATA 422
Han and Minister for Home Affairs (Citizenship) [2019] AATA 3325
Judd v Minister for Immigration and Border Protection [2017] FCA 827
Kim and Minister for Immigration and Border Protection [2015] AATA 67
Kumar and Minister for Immigration and Border Protection [2014] AATA 944
Nassif and Minister for Immigration and Border Protection (Citizenship) [2018] AATA 677
Nicholls and Minister for Immigration and Border Protection [2014] AATA 196
Paula and Minister for Immigration and Citizenship [2012] AATA 543
Re ER Aston and Y Aston and Secretary to the Department of Primary Industry [1985] AATA 306
Saba and Minister for Immigration and Border Protection [2014] AATA 579
Taher and Minister for Immigration and Border Protection [2013] AATA 917
Vasiunina and Minister for Immigration and Border Protection (Citizenship) [2018] AATA 943
Vizman and Minister for Immigration and Border Protection (Citizenship) [2016] AATA 328
SECONDARY MATERIALS
Australian Citizenship Policy Statement
Citizenship Procedural Instruction 4 – Person under 18
Citizenship Procedural Instruction 11 – Assessing likelihood to reside or continue to reside in or maintain a close and continuing association with Australia
Citizenship Procedural Instruction 13 – Best interest of the child assessments
REASONS FOR DECISION
Chris Puplick AM, Senior Member
5 May 2021

Ms Lucy Marie Reynolds (the Applicant) made an application for citizenship by conferral on 15 April 2019 at which time she was 16 years of age. That application was rejected by a delegate of the Minister (the Respondent) on 18 September 2020, by which time the applicant had turned 18 years of age (the reviewable decision).
On 14 October 2020 the Applicant applied to this Tribunal for a review of that decision.[1] The Respondent’s Statement of Facts, Issues and Contentions (SFIC) is in error in describing this application as being for “an extension of time to make an application for review”.[2] It was an application for a full review of the decision. The application was heard on 12 April 2021 using the Microsoft Teams platform where the Applicant was represented by her mother (Ms Margaret Reynolds) who is resident in the United Kingdom, as is the Applicant at the present time. Her mother is an Australian citizen with a right of permanent residency in the United Kingdom.
[1] Tribunal documents (T-documents) at 1.
[2] Respondent’s Statement of Facts, Issues and Contentions (SFIC) at [1].
The application for citizenship by conferral is made under the provisions of the Australian Citizenship Act 2007 (Cth) (the Act).
CITIZENSHIP
Citizenship is a fundamental bedrock of the Australian polity. “The conferral of citizenship is a privilege”[3] which both confers rights and engenders obligations. It is a thing of legal status and a thing of value.[4] It is not to be bestowed lightly.[5]
[3] Ahmadi and Minister for Immigration and Border Protection (Citizenship) [2017] AATA 1086 at [171]; Haeri and Minister for Immigration and Citizenship [2009] AATA 422 at [35].
[4] Beyan and Minister for Immigration and Border Protection [2015] AATA 256 at [38].
[5] Fenn and Minister for Immigration and Multicultural Affairs [2000] AATA 931 at [8].
For persons not born with Australian citizenship, it may be acquired in a number of ways, one being by conferral.
CITIZENSHIP BY CONFERRAL
The Act provides that a person may make an application for citizenship by conferral.[6] The Minister must make a decision on the application and either approve or refuse it.[7] An applicant must meet certain qualifications a specified in the Act[8] and, if they do, they must then undertake and pass the Citizenship Test[9] (unless they are exempted from so doing[10]). Once those steps are complete a qualified applicant must make the Pledge of Commitment[11] before their citizenship is granted finally.
[6] Australian Citizenship Act 2007 (Cth) (Act) s 21(1).
[7] Act s 24(1).
[8] Act s 21(2)
[9] Act s 23A.
[10] Act ss 21(3)(d), 21(4)-21(8).
[11] Act s 26.
STATUS OF THE APPLICATION
The Applicant first arrived in Australia, accompanied by her mother in August 2010 when she was 8 years of age.[12] Again, the Respondent’s SFIC is in error in giving this date as 19 October 2012.[13] At that time she held an Adoption visa (subclass 102) and she currently holds a Return Resident visa (subclass 155) granted in November 2019.
[12] Applicant’s Movement History, Supplementary Tribunal documents (Supplementary T-documents) at 1-2.. This document records the Applicant’s name as Lucy Marie Phillips which was, apparently her name prior to adoption and which was the name shown in the passport used for her first entry into Australia. The record is in error and should be amended to ensure that the applicant’s name is recorded properly as Lucy Marie Reynolds.
[13] Respondent’s SFIC at [3].
As noted, the original application was made at a time when the applicant was 16 years of age. Such applications are provided for under subsection 21(5) of the Act as follows:
(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.
Although the Applicant is now 18 years of age it was uncontested that the Tribunal, in reviewing the original decision to deny the application, must do so by treating the Applicant as being 16 years of age and make its determination accordingly.
The Respondent states:
The delegate accepted that the applicant satisfied the relevant criteria in subsection 21(5) of the Act on the basis that she was less than 18 years of age at the time of the application for Australian citizenship, and was a permanent resident at both the time of the application and at the time of decision.[14]
BASIS OF THE REVIEWABLE DECISION
[14] Ibid at [6].
Legislative
Subsection 24(1) of the Act provides that the Minister must make a decision on any application made under section 21, however section 24(2) provides:
(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).
This has been described by the Tribunal as giving the Minister a “discretionary override”,[15] although it really amounts to no more than saying that the grant of citizenship by conferral is not automatic on application and that legislative and policy requirements must also be considered by decision-makers.
[15] Vizman and Minister for Immigration and Border Protection (Citizenship) [2016] AATA 328 at [22]; Han and Minister for Home Affairs (Citizenship) [2019] AATA 3325 at [6].
Policy
Apart from legislative requirements, applicants for citizenship by conferral are also assessed with reference to both the Australian Citizenship Policy Statement[16] and the Citizenship Procedural Instructions (CPIs) as most recently issued. There are two relevant CPIs in this instance: CPI 4[17] and CPI 11.[18]
[16] Australian Citizenship Policy Statement.
[17] Citizenship Procedural Instruction 4 – Person under 18 (updated 1 January 2021).
[18] Citizenship Procedural Instruction 11 – Assessing likelihood to reside or continue to reside in or maintain a close and continuing association with Australia (updated 17 April 2019).
CPI 4 relevantly provides (inter alia):
4.1 Age – paragraph 21(5)(a) of the Act
Applicants must be aged under 18 years at time of making the application. They are not required to be aged under 18 years at time of decision.
…
9. Applicants aged 16 or 17 years at time of application
In addition to the legal requirements set out in subsection 21(5), decision-makers are to give due consideration to the policy guidelines below in deciding whether to approve or refuse the application of applicants who are aged 16 or 17 years at the time of application.
…
Factors that may be taken into consideration by decision makers include whether they have spent sufficient time in Australia to become familiar with the Australian way of life and the values to which they will need to commit as Australian citizens.
9.1 Residence in Australia
Under policy, a relevant consideration when determining whether to exercise the discretion at subsection 24(2) of the Act is to take into account the amount of time that applicants aged 16 or 17 years have spent in Australia prior to lodging an application for citizenship by conferral.
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.
9.2 Have an intention to reside or continue to reside in Australia or maintain a close and continuing association with Australia
Applicants are expected to sign the declaration on their application form that they have an intention to reside or continue to reside in Australia or maintain a close and continuing association with Australia.
However, in cases where:
• the applicant’s travel history shows short periods in Australia prior to the application, or
• one or both of the applicant’s parents are not resident in Australia,
the applicant should be interviewed and asked about their and their family’s plans for the immediate future, such as study overseas, intention to return to country of origin, employment plans. Plans for the whole family may be relevant, for example, is a parent intending to take up employment overseas and do they plan to travel with their family?
…
9.3 Where above policy guidelines are not met
Decision makers must consider whether the client would be subject to significant hardship or disadvantage before proceeding to refuse an application.
…
Where an application is being considered for refusal using the discretion set out in subsection 24(2) of the Act, a best interest of the child assessment will be required if the applicant is under 18 at time of decision.
…
As noted above, the policy guidelines should not be applied inflexibly, particularly in
circumstances where the applicant may suffer significant hardship or disadvantage.
The Tribunal notes several matters arising from consideration of these policy instructions:
(a)They are not to be applied inflexibly;
(b)They are to have due regard to the best interests of the child;
(c)They are focussed upon ensuring that the child applicant has spent sufficient time in Australia, not simpliciter, but for the express purpose of becoming “familiar with the Australian way of life and values” to which they will need to commit;
(d)A residential requirement of two years is “usually” regarded as sufficient – but again, on the express basis that this will allow a decision-maker to be satisfied that the applicant understands the nature of their application, possesses a basic knowledge of English and is informed adequately about the rights, responsibilities and privileges of Australian citizenship.
In other words, the whole gravamen and purpose of CPI 4 bends towards the establishment of the capacity of a minor applicant to understand the purpose of their application, to be competent in English and perhaps above all, to understand what it means to, potentially, become an Australian citizen. The tests lead to an outcome – they do not stand devoid of some ulterior purpose.
CPI 11 provides (inter alia) some dictionary definitions of the phrase “likely to reside or continue to reside” and of the words used in the phrase “likely to maintain a close and continuing association with Australia.” “Maintain”, “close”, “continuing” and “association” are defined. Significantly, the word “Australia” is not.
In Vasiunina[19] I posed the question:
[19] Vasiunina and Minister for Immigration and Border Protection (Citizenship) [2018] AATA 943.
The law in this regard seems, on the face of it, to be clear. The legislation requires that there be “a close and continuing association with Australia.” Although that seems simple enough, it begs the question: what is meant by “Australia” in this context? For example:
1does it mean merely a physical place on the face of the planet, a continent girt by sea?; or
2does it mean the concept of Australia as a nation – diverse, replete with its extraordinarily ancient indigenous traditions, its multiculturalism and its shared ethos and values?
There is nothing to be gained by searching elsewhere for a useful definition of what is meant by “Australia” in this context. The Acts Interpretation Act 1901 (Cth) for example merely states:
“Australia” means the Commonwealth of Australia and, when used in a geographical sense, includes Norfolk Island, the Territory of Christmas Island and the Territory of Cocos (Keeling) Islands, but does not include any other external Territory.[20]
Asking the question “what is Australia” within the context of this legislation seems as fruitless as Pilate’s enquiry about truth (John 18:38). I have found no relevant authority on this point.
[20] Acts Interpretation Act 1901 (Cth) s 2B.
There is still no such authority and the numerous revisions of the CPIs since 2018 have yielded no further guidance for the Tribunal.
CPI 11 goes on to list some of the factors which may be relevant in determining whether an applicant meets the tests of residence or close and continuing association. These include:
·Living arrangements both in Australia and overseas
·Assets and sources of income
·Frequency and purpose of visits to Australia
·Employment arrangements in Australia or overseas
·Participation in the Australian community.
It must be immediately apparent, as a matter of common-sense, that to apply some of these criteria to minors in the same way as they would be applied to adult applicants would be not only unfair but also irrational. Minors are not able to lease accommodation or take out contracts; they are not able to accompany a spouse or have caring responsibilities for elders, all of which are cited as examples of factors for consideration in CPI 11.
THE STATUS OF POLICY
The Tribunal must give due and proper consideration and weight to the statement of government policy which has been issued to assist and guide in the determination of questions such as those arising here.[21]
[21] Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634 at 644-645.
Policy, however, is not the same as law. As this Tribunal said in Aston, “[p]olicy is not law. A statement of policy is not a prescription of binding criteria.”[22]
[22] Re ER Aston and Y Aston and Secretary to the Department of Primary Industry [1985] AATA 306 at [21].
Indeed, I note the comment of Senior Member McCabe (as he then was) in Kumar to the effect:
I do not accept the Australian Citizenship Instructions[23] are useful aids to the interpretation of the statute. At best, they represent the respondent’s opinion as to the correct interpretation of the legislation.[24] (emphasis in original)
[23] Predecessor documents to the Citizenship Procedural Instructions.
[24] Kumar and Minister for Immigration and Border Protection [2014] AATA 944 at [7].
In Gbojueh, Tracy J explained:
At both common law and under statutory judicial review a decision-maker will not commit jurisdictional error merely by having regard to a principle or policy when exercising a statutory discretion. Error, may, however, occur if the decision-maker considers him or herself bound to apply the policy without regard to countervailing considerations and acts accordingly.[25]
[25] Gbojueh v Minister for Immigration and Border Protection[2014] FCA 883 at [39].
The Tribunal accepts that it must have due regard to the Policy as a guide but must apply it flexibly and in a way that is attuned to the particular circumstances of this application. It must also seek, as far as possible, to give effect to the outcomes which are clearly identified as being the rationale for the policy in the first place.
THE APPLICANT’S CLAIMS
It is agreed that the Applicant has never resided in Australia on anything approaching a permanent basis. Her movement records show that she has visited Australia on some four occasions between 2010 and 2016.[26] In total she has spent some 43 days onshore. Yet again the Respondent’s SFIC is inaccurate in stating that this was only 39 days,[27] although this was corrected at the hearing.
[26] Supplementary T-documents at 1-2. Also, in the Delegate’s decision, T-documents at 16.
[27] Respondent’s SFIC at [23].
It was put on behalf of the Applicant that she had been “brought up in an Australian family” and that she was, to all intents and purposes an Australian in her thinking, interests and values. She has numerous relatives who live in Australia and is particularly close with cousins of her own age and generation. During visits to Australia she has travelled extensively in New South Wales and has seen much of the “genuine” part of the country. This narrative is supported by several written testimonials (although not in the form of statutory declarations nor personally signed) upon which the Tribunal has placed some weight.
The Applicant is currently undertaking some studies, having recently completed her school career and is working in a voluntary capacity for a charity which operates in the area of mental health and childhood trauma services.
She has a particular interest in matters of Indigenous culture and history and has completed a Sydney University online course in “cultural competence”. She also submitted to the Tribunal evidence of an earlier school project undertaken in relation to aspects of Indigenous culture in Australia.
The Applicant has applied to study at Melbourne University and has been advised that her application outcome will be notified in May 2021.
There is evidence before the Tribunal that the Applicant had an airline ticket booked to travel to Australia in December 2020 but that this was cancelled by the airline in partial response to the restrictions imposed by the COVID-19 pandemic.

None of this is contested by the Respondent which further concedes that “[t]he respondent accepts that the applicant has considered residing in Australia and that it is possible she may do so in future.”[28]
[28] Ibid at [21].
However, the Respondent also describes the Applicant’s plans as “vague and undeveloped” and that she has failed to specify what sort of a job she might seek once she has completed her studies. The Tribunal notes that the Respondent’s concern that there has been no evidence produced of any offer of a university place is responded to by the evidence from the Applicant’s mother that such a decision is not expected until May.
The Applicant herself has provided a written statement[29] to the Tribunal in which she makes the following points:
The majority of my close family actually live in Australia. Particularly those of my generation and age, so therefore those I am naturally very close to. The majority live in Australia with three close relatives, two of which are my age, currently in New Zealand. During my early years of Adoption, my Uncle, Aunt and my five cousins who I am and have always been close to, though now residing in England, were at the time also living in Australia and New Zealand. I talk to my Australian relatives very often, whether that be about their personal lives, present and past Australian politics - lots of debates there - issues such as the bushfires and, more recently, the flooding in NSW where thankfully my family were not impacted. The schooling system, our family’s long history in Australia and West Wyalong. I also visited the West Wyalong archives in search of information about my family who were prominent medical professionals in the Australian NSW community and more.
…
As well as this, whilst my mother’s job - not that this is, in my opinion, particularly relevant given that I am very much my own person with a support system in place should I choose to reside in Australia pre university rather than post university - is currently here in the UK. It has always been a significant discussion that when she retires from full time work in just a few years’ time, she is considering going back to Australia to live. If this were the case and I wasn’t already residing in Australia, I would certainly go with her, as given that I am only just an adult, I haven’t previously had any autonomy over where I get to live. Interestingly, I would not want to live in England without my mother being there, yet, due to my stronger ties to Australia, living in Australia, even if my mother is residing in England, is something that I not only feel I could do, but something that greatly appeals to me, especially once I gain good qualifications that would enable me to contribute to Australian society. This is because Australia is my home.
Furthermore, I understand the need to reside in Australia for someone who is trying to gain residency by conferral who does not have ties to Australian culture previously. However, in my case, living in Australia would not make my Australian identity or my feelings towards Australia any stronger. This is because from the age of 6, I have been told I’m Australian. I’ve been educated in Australia’s history, engaged in Australia’s politics, immersed in Australian culture.
[29] Statement of Lucy Reynolds (24 March 2021).
The Applicant’s mother, appearing on her behalf, informed that Tribunal that she was “close to retirement” and that it was her intention, at that stage, to return to Australia to live. The Tribunal accepts this as a genuine statement of her intent.
The Applicant has a history of having made previous applications for citizenship. The first of these was not successful apparently because of difficulties arising from the fact that the Applicant is the adopted child of her Australian mother. In the second instance the application apparently failed because the Applicant was not then a holder of a current Australian visa.
In the view of the Tribunal the first of these considerations is a matter of no moment in this application. The Applicant is the legal child of an Australian citizen and that matter is not in any way contested by the Respondent. As to the latter, the Applicant is now the holder of the required visa.
On reflecting on these instances, the Applicant writes:
Does the officer who made the initial decision really think that as someone who has been through so much rejection and trauma already via adoption would pour their mental being into trying to be legally seen as Australian and be a part of Australia and persist through it through three rejections if they wanted citizenship due to their ties to the people in Australia rather than Australia itself? The answer for me is no. I will always have close ties to the friends and family I have in Australia, regardless of whether or not I get citizenship so applying to become a citizen has nothing to do with that. I’m applying to become a full citizen because I am Australian, regardless of what a document says, as I’ve stated. From the moment I was adopted I have been integrated in Australian culture. I introduce myself as Australian as it is the identity I align with most (and I am half Australian). I remember the 2010 elections, following it on TV. I remember filling in the census and feeling proud that I could tick that I was a permanent resident of Australia, more than just a tourist.
CONSIDERATIONS
The Respondent accepts that the Applicant is qualified for citizenship by conferral in terms of meeting the requirements of subsection 21(5) of the Act. However, it has determined that the “ministerial override” provisions of subsection 24(2) should be enlivened and that the application should be denied.
The sole basis for this denial rests upon the Respondent not being satisfied that the Applicant intends to reside in Australia or has a close and continuing association with it.
In turn that determination is sustained by only one significant factor, namely the limited amount of time that the Applicant has spent onshore.
The Tribunal is conscious that there have been different approaches taken by the Tribunal to the weight to be given to this particular temporal factor.
In Nassif,[30] Kim[31], Taher[32] and Nicholls,[33] the Tribunal stressed the centrality of physical presence in Australia in determining whether the general residency requirements can be met by an Applicant. However, the Tribunal continued to emphasise that each decision must be on the basis of the evidence taken and considered as a whole.[34]
[30] Nassif and Minister for Immigration and Border Protection (Citizenship) [2018] AATA 677 at [37].
[31] Kim and Minister for Immigration and Border Protection [2015] AATA 67 at [31].
[32] Taher and Minister for Immigration and Border Protection [2013] AATA 917 at [47].
[33] Nicholls and Minister for Immigration and Border Protection [2014] AATA 196 at [33].
[34] Ibid.
On the other hand, the Tribunal in Saba,[35] Paula[36], and Vasiunina[37] and the Federal Court in Judd[38] took a somewhat different position, placing less weight on a calculation of days and more on the qualitative aspects of the Applicant’s relationship with Australia.
[35] Saba and Minister for Immigration and Border Protection [2014] AATA 579.
[36] Paula and Minister for Immigration and Citizenship [2012] AATA 543.
[37] Vasiunina and Minister for Immigration and Border Protection (Citizenship) [2018] AATA 943.
[38] Judd v Minister for Immigration and Border Protection [2017] FCA 827.
In their consideration of the “best interests of the child” which is mandated by section 9.3 of CPI 4 the delegate referred only to the Applicant’s status as a permanent resident and concluded that as this status was unaffected by a refusal decision, hence “such a decision would not be against your best interests.”[39]
[39] T documents at 16-17.
With respect to the Delegate, the Tribunal believes that the best interests of the child require a more than mere cursory reference to their visa/residence status. Consideration should be given to the expressed feelings of the Applicant; to the advantages she sees for herself in studying in Australia and residing here; her repeated attempts to obtain Australian citizenship; her clear self-identification as an Australian; the proximity of family members living in Australia and the change in her circumstances were her mother to return to Australia to live. There is no gainsaying that the Applicant would not be prevented from doing any of these things because she retains her permanent resident status. The question is however, to what extent would her life and interests be enhanced by permitting her to participate fully in the Australian polity as a citizen.
CPI 13[40] makes the point that “policy and procedures do not have the force of law” and that “the phrase ‘the best interests of the child’ is not defined” so that the decision-maker should consider a wide range of factors informed, in part by the principles laid down in the United Nations Convention on the Rights of the Child. The CPI goes on to make it clear that such interests must be “weighed with or against any other primary considerations in the specific circumstances”. It also makes it explicit that, “the views of the child should be given weight in accordance with the child’s age, maturity and level of understanding.”[41]
[40] Citizenship Procedural Instruction 13 – Best interest of the child assessments (CPI 13) (updated 10 April 2019).
[41] CPI 13 at 3.2.
There is no evidence before the Tribunal to suggest that the Delegate fulfilled, or even attempted to fulfil their responsibility to ascertain and consider the views of the child in question as required by CPI 13. This is especially relevant given that the child, in this instance, was a person on the cusp of adulthood with an advanced level of maturity and understanding. The requirement of CPI 13 to treat this matter as a “primary consideration” was not, in the Tribunal’s opinion, discharged.
In her Statement the Applicant speaks eloquently of her interest in Australian history and culture and her close following of Australian politics. In defining her own best interests, she writes:
I take it upon myself to educate myself on these things because, as said, I am, whether legally or not, Australian and believe it is my duty as someone whose heritage is Australian to be just as knowledgeable as my family living in Australia and to feel just as close to Australia as they do. I’ve never had to question how I’ve felt about Australia before, because I took it for granted. It is beyond difficult and there have been moments where I’ve felt great despair mentally that I would never be seen as Australian enough - though have since come to the conclusion that what counts is what’s within and I will always feel Australian. When you’ve felt and believed something about yourself for the majority of your life and suddenly have it questioned and interrogated.
Under CPI 13 a decision-maker is obliged to give weight to what are clearly articulated and understood statements of the Applicant’s views and treat them as a “primary consideration”.
The Tribunal’s assessment is that it is clearly in the best interests of the child (this Applicant) for her to have access to the privilege of Australian citizenship.
The temporal disqualification upon which the Respondent relies must be set against the constellation of factors which speak to the achievement, by the Applicant, of the very outcomes which the CPIs claim to be promoting.
The Tribunal is satisfied that the Applicant has a genuine commitment to reside in Australia and has, to the extent possible for a minor, taken steps to achieve this. It accepts that she has sought to travel here and to enrol in a university. The failure to achieve the planned travel was through no fault of her own and indeed was a consequence of the very pandemic which has prevented almost all Australians from travelling abroad and many from returning home. The outcome of her university application is pending.
To state, “no evidence has been provided as to what type of job the applicant would seek in Australia, or when”[42] strikes the Tribunal as unreasonable. It is not clear, should the Applicant be accepted by Melbourne University whether she would undertake a three-year undergraduate course (in Liberal Arts) or extend that to a four-year Master’s programme. The Applicant’s choices on (hopefully) successful graduation from such a course should be wide and expansive and it is manifestly unreasonable to expect her to be definitive at this stage about where her career path might lie.
[42] Respondent’s SFIC at [21].
Equally to say, “[m]oreover, such plans are contingent on many events falling into place which are out of her control in the context of the Covid-19 pandemic (such as her ability to enter into Australia)”[43] is to say no more than that the Applicant is in the same position as just about everyone else at this time.
[43] Ibid.
The Tribunal is satisfied that the Applicant has an intention to reside in Australia and has demonstrated a close and continuing association with Australia as required by legislation and policy.
The flexible application of Policy, taking into consideration all the factors in this case and with particular emphasis on the best interests of the child (given the requirement to treat this as an application from a 16-year old) clearly indicate that the Applicant meets the requirements of both the legislation and the Policy prescriptions and that no genuine impediments exist to her application for citizenship being considered again in line with the Tribunal’s findings.
DECISION
The reviewable decision is set aside, and the matter is remitted to the Respondent for reconsideration in line with the findings of the Tribunal that the Applicant has both a close and continuing association with Australia and an intention to reside in Australia.

I certify that the preceding 59 (fifty-nine) paragraphs are a true copy of the reasons for the decision herein of Chris Puplick AM, Senior Member

....................................[sgd]....................................
Associate
Dated: 5 May 2021

Date(s) of hearing: 12 April 2021

Advocate for the Applicant: Ms M Reynolds

Solicitors for the Respondent: Ms M Strugnell, Minter Ellison

Date(s) of hearing:	12 April 2021
Advocate for the Applicant:	Ms M Reynolds
Solicitors for the Respondent:	Ms M Strugnell, Minter Ellison