RRML and Minister for Home Affairs (Citizenship) - [2020] AATA 1654

RRML and Minister for Home Affairs (Citizenship) [2020] AATA 1654 (4 June 2020)
Division:GENERAL DIVISION

File Number(s): 2018/6876, 2018/6877
Re:RRML and XJFZ
APPLICANTS

AndMinister for Home Affairs
RESPONDENT

DECISION
Tribunal:Deputy President Boyle
Date:4 June 2020
Place:Perth

The decisions under review are affirmed.
...............................[SGD]......................................
Deputy President Boyle
CATCHWORDS
CITIZENSHIP – citizenship by conferral – Citizenship Policy – status of policy – persons aged under 18 years of age – significant hardship or disadvantage – best interest of the child – access to education – ties to Australia – discretion to approve or refuse to approve citizenship application – COVID-19 – resident return visa - reviewable decision affirmed
LEGISLATION
Administrative Appeals Tribunal Act 1975 (Cth) – s 19D(2), 37
Australian Citizenship Act 2007 (Cth) – ss 20, 21, 21(2), 21(3), 21(4), 21(5), 22, 22A, 22B, 23, 24, 24(2), 26(1)(a), Division 2 of Pt 2
CASES
CQJV and Minister for Immigration and Border Protection [2017] AATA 653
Drake and Minister for Immigration and Ethnic Affairs (No. 2) (1979) 2 ALD 634
Galesloot and Minister for Home Affairs [2018] AATA 4450
G v Minister for Immigration and Border Protection [2018] FCA 1229
Grass v Minister for Immigration and Border Protection [2015] FCAFC 44; 231 FCR 128
GZQZ and Minister for Immigration and Border Protection [2017] AATA 1052
Han and Minister for Home Affairs [2019] AATA 3325
Hneidi v Minister for Immigration and Citizenship [2010] FCAFC 20
Minister for Home Affairs v G [2019] FCAFC 79
Perez v Minister for Immigration & Multicultural Affairs [2002] FCA 450; 119 FCR 454
Roach v Electoral Commissioner [2007] HCA 43; 233 CLR 162
Wijewardhanage and Minister for Immigration and Border Protection [2018] AATA 746
SECONDARY MATERIALS
Citizenship Policy, Department of Immigration and Border Protection, 1 June 2016 – pages 1, 33, 75-76, 224
REASONS FOR DECISION
Deputy President Boyle
4 June 2020
THE APPLICATIONS

The Applicants, who are sisters, made applications for the review of decisions of delegates of the Respondent made under s 24(2) of the Australian Citizenship Act 2007 (Act) refusing to approve the Applicants’ respective applications for Australian citizenship by conferral
(the Decisions).
The Decisions were made on 30 October 2018 and 31 October 2018 and contain substantially the same reasons, despite being made by different delegates. Because of the similarity in the Decisions and the alignment of issues in each application, on
15 January 2019 the Tribunal ordered that the two applications be joined and programmed together. The applications were heard together.
BACKGROUND
XJFZ was born in the United Kingdom (UK) in June 2003 and is currently 16 years old.

She is a citizen of the UK. She began living in the United Arab Emirates (UAE) with her mother in November 2004 when she was approximately 17 months old. XJFZ has not resided in the UK since then (Applicants’ Statement of Facts, Issues and Contentions).[1]
[1] (ASFIC) para. 6.0
RRML was born in June 2006 and is currently 13 years old. She is a citizen of Sierra Leone. She also became a citizen of the UK in August 2007. RRML lives with her mother and stepfather in the UAE and has never resided in the UK.
In 2008 the Applicants’ mother, a UK qualified veterinary surgeon, purchased a veterinary clinic in Dubai. In 2009 and 2010 the Applicants’ mother completed courses in Australia to qualify to practice as a veterinarian in Australia. She says that that it was her intention to move to Australia in 2012 and to run her Dubai veterinary practice from Australia.[2]
[2] ASFIC para. 9.
In 2010 the Applicants’ mother married [redacted].
In August 2011 the Applicants’ mother gave birth to a son in Attadale Western Australia. That child is an Australian citizen by birth.
The Applicants’ mother says that in September 2011 her two partners in the Dubai veterinary clinic tried to defraud her which started a long-running legal process in the UAE. These legal proceedings, according to the Applicants’ mother, required her presence in the UAE which disrupted her plans to move the family, including the Applicants, to Perth.

Those legal proceedings were not resolved until mid-2017.
In 2011 the Applicants’ mother’s brother and his family moved to Perth. In 2012 her parents retired and purchased a home in Perth.
In September 2011 the Applicants were granted Skilled-Independent (Class VE) (subclass 175) visas and first arrived on those visas with their mother in February 2012.
In 2012 the Applicants’ mother established a veterinary hospital in Dubai, according to the Applicants’ mother, to support herself and her family while the legal proceedings in UAE were resolved.
In mid-2017, following completion of the legal proceedings in the UAE, the Applicants’ mother came to Australia with the Applicants with the intention of residing in Australia on a permanent basis. It was the Applicants’ mother’s intention that the veterinary hospital in Dubai would be run by the hospital’s head veterinarian when the Applicants’ mother was absent. The head veterinarian resigned in June 2017.
In July 2017 XJFZ enrolled in year 9 at [redacted] High School and RRML enrolled in year 6 at [redacted] Primary School.
On 5 July 2017 the Applicants made applications for Australian citizenship by conferral.

The applications for citizenship were made on the basis of the Applicants satisfying the requirements of s 21(5) of the Act.
During the period from August 2017 onwards, the Applicants’ mother’s veterinary hospital in Dubai suffered a succession of illnesses and resignations of key veterinary and management personnel which necessitated the Applicants’ mother being in the UAE.
The Applicants’ submit[3] that because the children were minors and because of the need for stability in XJFZ’s education, the Applicants and other family members accompanied the Applicants’ mother to the UAE when she returned there in September 2017. Between September 2017 and February 2019, the Applicants’ mother worked in the veterinary practice in Dubai. This delayed the Applicants’ move to Australia.[4]
[3] ASFIC para. 24.
[4] ASFIC para. 24-26.
In August 2018 the Applicants made applications for Resident Return (subclass 155) visa (RVV) which were issued to them in October 2018.
In October 2018 the Applicants received notification of the refusal of their citizenship applications.
In December 2018 the Applicants’ mother gave birth in Australia to a daughter who is an Australian citizen by birth.
In a statement dated 21 April 2020, the Applicants’ mother advised that:
(a)She and the Applicants continue to reside in the UAE;
(b)The UAE has advised non-citizens to return to their home countries until the COVID-19 situation is over. There are, however, no flights to Perth;
(c)She is concerned that the COVID-19 pandemic disruption will cause further delays in processing their Australian permanent visa renewals;
(d)Given that their ability to renew permanent visas is dependent on them spending time in Australia, she is concerned that travel restrictions could affect their ability to renew the Applicants’ permanent visas;
(e)She has spent $600,000 on purchasing a property in Australia and is planning on spending a similar amount to build a new house on the property;
(f)COVID-19 is causing uncertainty on the length of school closures (presumably in Australia) and course availability;
(g)They had planned to be in Australia from 21 March 2020 to 11 April 2020 but because of travel restrictions they had not been able to come.
(h)The uncertainty about the Applicants’ citizenship and delay and restrictions caused by COVID-19 have ‘further disadvantaged’ the Applicants and her ability to ‘make clear plans for their future’
THE HEARING AND EVIDENCE
The Applications were heard by Member C Edwardes and Member D Fitzgerald on

2 May 2019. The Applicant was represented by Ms A Graziotti of Estrin Saul Lawyers and the Respondent was represented by Ms A Ladhams of Australian Government Solicitor.

The Applicant’s mother and XJFZ gave evidence at the hearing.
After the hearing Member Edwardes ceased being a member of the Tribunal. By direction made on 10 July 2019 pursuant to s 19D(2) of the Administrative Appeals Tribunal Act 1975 (AAT Act), the direction by which the proceedings were constituted to Members Edwardes and Fitzgerald was revoked and a direction was made that the proceedings be constituted to Member Fitzgerald alone.
On 5 March 2020 Member Fitzgerald stopped being a member of the Tribunal and by direction made on 18 March 2020 pursuant to s 19D(2) of the AAT Act, the direction of 10 July 2019 constituting the proceedings to Member Fitzgerald was revoked and a direction made that the proceedings be constituted to Senior Member Dr M Evans-Bonner.
By direction made on 31 March 2020 pursuant to s 19D(2) of the AAT Act, the direction of 18 March 2020 that the proceedings be constituted to Senior Member Dr M Evans-Bonner was revoked and a direction was made that the proceedings be constituted to Deputy President Boyle.
On 31 March 2020, with the agreement of the parties, the following directions were made:
(i)The applications are to be determined on the basis of the transcript of the hearing on 2 May 2019 and the papers;
(ii)On or before 10 April 2020 the Applicants were to file and serve any submissions in relation to the impact of COVID-19 pandemic; and
(iii)On or before 23 April 2020 the Respondent were to file and serve any submissions in reply.
On 21 April 2020 the Tribunal received a statement dated 21 April 2020 signed by the Applicants’ mother (see [20] above) and on 4 May 2020 the Tribunal received from the Respondent submissions in reply to the Applicants’ mother’s statement of 21 April 2020.
The Applicants’ mother provided a statement dated 7 March 2019 as well as the one of

21 April 2020 referred to above. The Applicants’ stepfather, [redacted], provided a statement also dated 7 March 2019. XJFZ provided a statement dated 2 January 2019 and RRLM provided a statement dated 17 July 2019. The Applicants’ mother and XJFZ also gave evidence at the hearing. In addition, documents were provided by the Applicants’ mother relating to, and largely verifying, the issues that she had with her veterinary practices in the UAE and the departure of critical staff which necessitated her having to return to the UAE.
A bundle of documents in each application was provided by the Respondent under s 37 of the AAT Act.
The following submissions were made by the parties:
(a)ASFIC dated 8 March 2019;
(b)
Respondent’s Statement of Facts, Issues and Contentions (RSFIC) dated

15 April 2019;
(c)Applicants’ closing submissions date 21 June 2019;
(d)Respondent’s closing submissions dated 10 July 2019;
(e)Applicants’ reply dated 19 July 2019;
(f)Applicants’ mother’s statement dated 21 April 2020; and
(g)Respondent’s submission dated 4 May 2020 in reply to Applicants’ mother’s statement of 21 April 2020.
LEGISLATIVE FRAMEWORK
The legislative provisions relevant to the present applications are those identified by the

Full Court of the Federal Court (Murphy, Moshinsky and O’Callaghan JJ) in Minister for Home Affairs v G[5] at [7]-[16] (MHA v G) which are set out in the following paragraphs.
[5] [2019] FCAFC 79.
The Preamble to the Act states:
The Parliament recognises that Australian citizenship represents full and formal membership of the community of the Commonwealth of Australia, and Australian citizenship is a common bond, involving reciprocal rights and obligations, uniting all Australians, while respecting their diversity.
The Parliament recognises that persons conferred Australian citizenship enjoy these rights and undertake to accept these obligations:
(a) by pledging loyalty to Australia and its people; and
(b) by sharing their democratic beliefs; and
(c) by respecting their rights and liberties; and
(d) by upholding and obeying the laws of Australia.
Division 2 of Pt 2 of the Act deals with acquisition of Australian citizenship by application. Within that Division, Subdivision B (comprising ss 19G-28) deals with citizenship by conferral. Section 19G of the Act contains what is described as a “simplified outline” which describes the range of circumstances in which a person will be eligible for Australian citizenship by conferral. As was the case in MHA v G, the situation relevant to the present applications is that a person may be eligible to become an Australian citizen if they are aged under 18. This situation is dealt with specifically in s 21(5) of the Act.
Section 20 of the Act sets out the requirements for becoming an Australian citizen as follows:
20 Requirements for becoming a citizen
A person becomes an Australian citizen under this Subdivision if:
(a)the Minister decides under subsection 24(1) to approve the person becoming an Australian citizen; and
(b)if the person is required to make a pledge of commitment to become an Australian citizen – the person makes that pledge.
Note:Sections 21 to 25 deal with the Minister approving the person becoming an Australian citizen. Sections 26 and 27 deal with the making of a pledge of commitment.
The provisions relating to the making of the pledge of commitment do not apply to a person who is under 16 years of age at the time of making the application to become an Australian citizen: see s 26(1)(a). Both of the Applicants were under 16 years of age at the time that the applications for citizenship were made.
Section 21 of the Act deals with the application for citizenship and eligibility.

Section 21(2) sets out the general eligibility criteria for persons aged 18 or over at the time of making the application. The criteria are detailed and include that the person: is a permanent resident at the time of making the application and at the time of the Minister’s decision on the application; satisfies either the general residence requirement (which is dealt with in s 22), the special residence requirement (see s 22A or 22B) or the defence service requirement (see s 23) at the time of making the application; and is of good character at the time of the Minister’s decision on the application. Other parts of s 21 deal with circumstances that are not relevant to the present applications.
The part of s 21 of the Act which is relevant for present purposes is s 21(5), which applies to persons aged under 18 years. It 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 22 of the Act sets out a number of provisions about the “general residence requirement”, which form part of the eligibility criteria for some categories of applicant.

None of those sections is directly relevant to the present applications for citizenship. The Tribunal notes that while the sections of the Act dealing with residence requirements are not directly relevant, some parts of the Citizenship Policy, to which reference is made later in this decision, refer to such requirements.
Section 24 of the Act confers a general power on the Minister to approve or refuse to approve a person becoming an Australian citizen. Its text, relevantly, is as follows:
Minister’s decision
(1)If a person makes an application under section 21, the Minister must, by writing, approve or refuse to approve the person becoming an Australian citizen.
Note:The Minister may cancel an approval: see section 25.
(1A)The Minister must not approve the person becoming an Australian citizen unless the person is eligible to become an Australian citizen under subsection 21(2), (3), (4), (5), (6), (7) or (8).
(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).
Section 24 then sets out a number of circumstances in which the Minister is precluded from granting citizenship. These circumstances include: where the Minister is not satisfied of a person’s identity; where the person has an adverse security assessment; where a person is in prison, or facing proceedings for any offence against Australian law; or if a person’s former citizenship status has ceased in the preceding 12 months. None of those circumstances applies in the present cases.
Citizenship Policy
The Citizenship Policy (the Policy) replaced the Australian Citizenship Instructions (the Instructions) on 1 June 2016. The Full Court noted in MHA v G at [18] that there was no power under the Act to make the Instructions. Similarly, there is no power under the Act to make the Policy which replaced the Instructions. The Full Court in MHA v G found that the Instructions were made in an exercise of executive power. The Tribunal similarly finds in respect of the Policy. The provisions of the Policy relevant to the present applications are identical, or in very similar terms, to the provisions of the Instructions considered by the
Full Court in MHA v G.
For some reason, unhelpfully, the drafters of the Policy did not number the sections of the Policy, unlike the Instructions the sections of which were numbered. Accordingly, the best that the Tribunal can do when referring to the Policy sections is to identify the page on which the relevant policy appears.
The introduction to the Policy (Page 1 of 237) commences with the following:
Citizenship Policy
The role of Citizenship Policy is to support the Australian Citizenship Act 2007 (the Act). Citizenship Policy provides guidance on the interpretation of, and the exercise of powers under, the Act and the Australian Citizenship Regulations 2007 (the Regulations). Policy cannot constrain the exercise of delegated powers under the Act or the Regulations.
Chapter 7 of the Policy deals with citizenship by conferral. Under the heading “Persons aged under 18 years (s 21(5))” on pages 75-76 of 237, the following appears:
Person aged under 18 years (s21(5))
For applications received on or after 9 November 2009, a person under the age of 18 years applying for Australian citizenship by conferral under s21(5), must be a permanent resident (that is, they must have activated their permanent visa by entering Australia or by being granted the permanent visa while onshore) at the time of application and at the time of decision to be eligible for Australian citizenship.
The discretion in s24(2) to refuse to approve an applicant 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.
…
Best interests of the child
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 decision on the application and the child is living in Australia. Refer to Chapter 22 - Best interests of the child.
Applicants under the age of 16 (s21(5))
A child aged under 16 can make an individual application in their own right (by applying on a form that contains no other application) or on the same form and at the same time as a responsible parent. This is set out in s46(2A).
In the case of an applicant who does not meet the policy guidelines in this chapter, decision makers must consider the full circumstances of the case, including the best interests of the child, to determine whether the application nevertheless warrants approval because of the unusual nature of those circumstances.
If an applicant is under 16 a responsible parent is to sign the application form.
Children under 16 applying individually in their own right
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 application and decision and under policy also are:
§under 16 when applying and living with a responsible parent who is an Australian citizen and who consents to the application or
§usually resident in Australia with a permanent resident responsible parent who consents to the application, and that responsible parent would meet the residence requirement but has decided not to apply for Australian citizenship because they would lose the citizenship of another country or
§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 (refer to Significant hardship or disadvantage / detriment) or
§an unaccompanied humanitarian minor who falls under the Minister’s guardianship and a delegated guardian has consented to the application (refer to IGOC minors (s21(5))) or
§an unaccompanied humanitarian minor who does not fall under the Minister’s guardianship and their responsible carer has consented to the application (refer to Non-IGOC minors (s21(5))).
Consideration must also be given to whether there is a prohibition to approval. Refer to Prohibitions - Minister’s decision (s24).

Chapter 3 of the Policy defines “significant hardship or disadvantage/detriment” as follows (page 33 of 237):
Significant hardship or disadvantage / detriment
A number of provisions in the Act require an assessment of whether a person would suffer significant hardship or disadvantage / detriment. In addition, the policy guidelines relating to applications for conferral from persons aged under 18 years (those conferral applicants seeking to acquire citizenship through s21(5) of the Act), ask that an assessment be made as to whether the applicant would suffer significant hardship or disadvantage if they were not to acquire citizenship.
...
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
...
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
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
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. Further information on Commonwealth supported places is available from the Department of Industry, Innovation, Science, Research and Tertiary Education. Education, Science and Training at: 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.
Evidence is required that a person’s lack of Australian citizenship is the cause of the:
§significant hardship
or
§disadvantage or detriment.
For example, a letter from a potential employer, scholarship, sporting body stating that the person’s citizenship status is the only reason they have not been selected, plus a statement in writing from the applicant, with appropriate supporting documentation, evidencing the significant hardship or disadvantage this has caused.
THE ISSUE
The Respondent accepts that the Applicants meet the criteria in s 21(5) of the Act.[6] Both parties identify the issue for determination as being whether the correct or preferable decision is to refuse to approve the Applicants becoming Australian citizens relying on the discretion in s 24(2) of the Act.
[6] Respondent’s Statement of Facts, Issues and Contentions (RSFIC) para. 9.
The status of the Policy
Certain parts of the Instruction had been found to be unlawful in G v Minister for Immigration and Border Protection[7] (G v MIBP). The Full Court in MHA v G overturned that finding. As noted at [40] above, the parts of the Instructions that had been found to be unlawful in G v MIBP and subsequently found to be lawful by the Full Court, were substantially the same as the parts of the Policy referred to hereafter.
[7] [2018] FCA 1229.
The Full Court in MHA v G reviewed a number of cases and found:
58.It is established that an executive policy relating to the exercise of a statutory discretion must be consistent with the relevant statute in the sense that: it must allow the decision-maker to take into account relevant considerations; it must not require the decision-maker to take into account irrelevant considerations; and it must not serve a purpose foreign to the purpose for which the discretionary power was created: see Drake (No 2) at 640 per Brennan J; NEAT Domestic Trading Pty Ltd v AWB Ltd [2003] HCA 35; (2003) 216 CLR 277 at [24] per Gleeson CJ; Cummeragunga at [159] per Jacobson J.
…
64.First, the statute confers a broad and unfettered discretion in s 24(1) to approve or refuse to approve a person who has made an application under s 21 becoming an Australian citizen. The breadth of the discretion is confirmed by s 24(2), which provides that the Minister may refuse to approve the person becoming an Australian citizen despite the person being eligible to become an Australian citizen under s 21(2), (3), (4), (5), (6) or (7). Further, the relevant eligibility category for present purposes, namely that set out in s 21(5), contains little by way of criteria. In contrast with the eligibility criteria in s 21(2), which are more detailed, s 21(5) provides that 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 at the time the person made the application and at the time of the Minister’s decision on the application.
65.The breadth of the discretion in s 24(1) is not inimical to the adoption of an executive policy, even a detailed executive policy, to guide the exercise of the discretion. To the contrary, the breadth of the discretion tends to support the view that there is no inconsistency between section 5.12.5 of the Instructions and the statute. Moreover, the adoption of a policy in such a case promotes values of consistency and rationality in decision-making, and the principle that administrative decision-makers should treat like cases alike: see Plaintiff M64 at [54].
66.Secondly, section 5.12.5 of the Instructions (or at least the part considered by the primary judge to be inconsistent with the statute) allows the decision-maker to take into account relevant considerations and does not require the decision-maker to take into account irrelevant considerations. The primary judge focused on the reference, in the third bullet point in section 5.12.5, to the applicant suffering “significant hardship or disadvantage” if not granted citizenship. This third bullet point relates to a limited class of applications under s 21(5): children under 16 who are living with a responsible parent who is not an Australian citizen. If and to the extent that the primary judge considered “significant hardship or disadvantage” to be an irrelevant consideration (in the sense that it was impermissible for the Minister to take it into account when exercising the discretion to approve or refuse to approve an application for citizenship), we would respectfully disagree with her Honour. Neither the text of the legislation, nor the objects of the Act, suggests that the Minister cannot take this matter into account in exercising the discretion. The use of the expression “significant hardship or disadvantage” in s 22(6) should not be read as excluding consideration of this matter in the exercise of discretion under s 24(1). We would not infer that the use of the expression in one context, and its absence in the other, is explicable only on the basis that it was intended to be excluded from the latter.
67.Thirdly, section 5.12.5 of the Instructions does not serve a purpose foreign to the purpose for which the discretionary power was created. In considering this aspect, regard is to be had both to the discretion in s 24(1) to approve or refuse to approve an application for citizenship, and the relevant eligibility category, namely applicants who satisfy the criteria in s 21(5).
The Full Court then considered the extrinsic material, in particular the revised explanatory memorandum for the Australian Citizenship Bill 2005 (Cth) in determining the scope and operation of policy in guiding the exercise of discretion under the Act. The Court’s findings in that regard are, in the Tribunal’s view, well summarised in the Respondent’s closing submissions as follows:
5.3.The revised explanatory memorandum to the Australian Citizenship Bill 2005 envisaged the application of an executive policy in relation the proposed s 21(5) as to when an applicant would usually and not usually be approved. There is nothing in the extrinsic materials relating to an amendment to s 21(5) in 2009 (to include a requirement that the applicant be a permanent resident) to suggest that Parliament intended to depart from the approach outlined in the revised explanatory memorandum to the 2005 Bill: [67]-[71].
5.4.The relevant part of the ACIs does not preclude an applicant raising arguments as to why the policy should not be applied in the particular case, nor does it seek to control the outcome of the exercise of the discretion: [72]-[73]. The structure and content of the relevant part does not have a rule-like quality that purports to control the exercise of the discretion: [74].
Following the Full Court’s decision on MHA v G it is clear that the Policy is, like the Instructions were, not unlawful.
Parties’ submissions
The Applicants
The Applicants contend[8] that when the entirety of their circumstances is considered, the correct way for the Tribunal to perform its duty under subsection 24(1) is to approve their applications for Australian citizenship by conferral.
[8] ASFIC para. 33.
The Applicants note that the discretion under s 24(2) of the Act is broad, citing the Full Court in Grass v Minister for Immigration and Border Protection[9] in which the Court noted the following at [55];
Second, by reason of s 24(2), the Minister may refuse to approve a person who meets the eligibility criteria, including the good character requirement. This discretion is not expressly conditioned by any considerations. It is illustrative of the highly discretionary and staged nature of the process.
[9] [2015] FCAFC 44; 231 FCR 128.
At paragraph 41 of the ASFIC the Applicants refer to the explanatory memorandum to the Australian Citizenship Bill 2005 (Cth) and highlight the following part of the explanatory memorandum:
Persons who satisfy the eligibility criteria are generally approved to become citizens. However, it is conceivable that a person could meet the criteria but nevertheless it may not be in the public interest for that person to become an Australian citizen.
(Applicants’ emphasis)
The Applicants also cite the following from the replacement explanatory memorandum to the Australian Citizenship Amendment (Citizenship Test Review and Other Measures) Bill 2009 (Cth):
The purpose of new subsection 21(5) is to ensure the integrity of the citizenship and migration programs by preventing an applicant for citizenship by conferral who is under 18 from being eligible for citizenship if they are not the holder of a permanent visa under the Migration Act 1958 and Migration Regulations 1994. This is consistent with subsection 21(2) (relating to general eligibility), 21(3) (relating to applicants with a permanent physical or mental incapacity) and 21(4) (relating to applicants aged 60 or over or with a hearing, speech or sight impairment), all of which require the applicant to be a permanent resident at the time of application and at the time of decision to be eligible for citizenship.
(Applicants’ emphasis)
The Applicants contend that neither the Act nor the explanatory memoranda suggest that the amendment of subsection 21(5) was intended to require child applicants for citizenship by conferral to fulfil any further criteria other than being a permanent resident at the time of application and to be “eligible” for citizenship by conferral.[10]
[10] ASFIC para. 48.
In relation to the role that the Policy is to play in the making of a decision whether to grant or not to grant citizenship, the Applicants refer to the Full Court’s statement in Hneidi v Minister for Immigration and Citizenship[11] at [42]:
The Tribunal is not entitled to abdicate its function of determining whether the decision made was, on the material before the Tribunal, the correct or preferable one in favour of a function of merely determining whether the decision made conformed with whatever the relevant general government policy may be.
[11] [2010] FCAFC 20.
The Applicants also cite the following statement by President Brennan J in Drake v Minister for Immigration and Ethnic Affairs(No 2)[12] (Drake (No 2)) at 642 and 645:
It is one thing for the Minister to apply his own policy in deciding cases; it is another thing for the Tribunal to apply it. In point of law, the Tribunal is as free as the Minister to apply or not to apply that policy. The Tribunal’s duty is to make the correct or preferable decision in each case on the material before it, and the Tribunal is at liberty to adopt whatever policy it chooses, or no policy at all, in fulfilling its statutory function. In fulfilling its function, the Tribunal, being independent of the Minister, is free to adopt reasoning entirely different from the reasoning which led to the making of the decision under review. But it is not bound to do so...
If it were shown that the application of ministerial policy would work an injustice in a particular case, a cogent reason would be shown, for consistency is not preferable to justice...
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... [emphasis added]
(Applicants’ emphasis)
[12] (1979) 2 ALD 634.
The Applicants refer to the statements by Mortimer J in G v MIBP:
171.Justice or injustice is not found within a policy: it is found by looking at the overall circumstances of an individual’s case, with the principal focus being on the purpose and context of the statutory power, not the executive policy framed to guide it.
…
266.A Tribunal must give active intellectual consideration to what is the correct or preferable decision on the basis of all the material before it, in all of the circumstances before it. One of those circumstances is the existence, and content, of an executive policy.
While her Honour’s finding that parts of the Instruction were unlawful was set aside, nothing in the Full Court’s decision on MHA v G is inconsistent with the above statements by her Honour.
The Applicants identify that the only bullet point of the Policy relating specifically to children under 16 applying individually in their own right (see [43] above) that is applicable to them is that relating to “significant hardship or disadvantage”, the third bullet point.
The Applicants point to a number of cases, including G v MIBP and Galesloot and Minister for Home Affairs[13] (Galesloot) in which the courts have made it clear that the decision maker cannot inflexibly apply policy, that the full range of factors and specific circumstances must be taken into account and, as noted in Galesloot at [44]:
...it is for the decision-maker to determine the weight to be given to each of the factors and the Tribunal considers the ... [Policy] directive as an impermissible fetter on that discretion.
[13] [2018] AATA 4450.
The Applicants also argue that their best interests, as children, must also be taken into account and point to Chapter 22 of the Policy. Chapter 22 starts with the following overview of the chapter:
Overview of chapter
This chapter provides guidance on when and how to consider the best interests of a child.
Refer to:
§The status of international conventions in Australian law
§The Convention on the Rights of the Child.
Chapter 22 of the Policy provides that the best interests of a child must be considered when exercising a discretionary power under, amongst other sections of the Act, s 24(2).[14]
[14] Page 224 of 237.
The Policy provides guidance as to what is meant by “best interests of the child” as follows:[15]
[15] Page 225 of 237.
Definition of best interest of the child
The meaning of ‘best interests of the child’ is not defined, but is informed, in part, by the principles in the CROC. The factors that are most likely to be relevant to citizenship decisions are:
§children should be protected from all forms of physical or mental violence, injury or abuse, neglect or negligent treatment, maltreatment or exploitation, including sexual abuse
§families should be able to stay together, as far as possible
§the rights and duties of parents and other relevant family members should be respected and it should be recognised that both parents have common responsibilities for the upbringing and development of the child
§the child has the right to preserve his or her identity, including nationality, name and family relations as recognised by law
§prevention of the illicit transfer and non-return of children abroad
§freedom of religion
§the views of the child should be given weight in accordance with the child’s age, maturity and level of understanding and
§the degree of the child’s integration into the Australian community.
Those factors raised by the applicant or a third party, or evident on the available material, must be considered. Decision makers are not required to request further material for consideration regarding the rights of a child.
The Applicants cite Allsop J’s statement in Perez v Minister for Immigration & Multicultural Affairs[16] (Perez) at [118]-[120]:
The interests of the children are considerations in respect of their human development – their health, including their psychological health and happiness, their social and educational development as balanced, nurtured young citizens of this country. This is not a check list, but an illustration of the kinds of considerations relevant to these young people which form their best interests...
The task of the taking into account of these best interests is not satisfied, or, in a sense, even begun, by identifying facts which throw up the need for the identification and elucidation of these interests or by recognising compassion in respect of the circumstances of the children...
The task is a humane and analytical one: of identifying what are the best interests of the children, and then considering them in the way the law requires.
[16] [2002] FCA 450; 119 FCR 454.

As noted at [59] above, the Applicants concede that the only bullet point under the heading “Children under 16 applying individually in their own right” (see [43] above) is the third bullet point applying to a child 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. The Respondent agrees that that is the only applicable subparagraph and the Tribunal so finds.
The Applicants cite Mortimer J’s comments in G v MIBP at [70] and [87] to the effect that it is not a requirement of the statute that the applicant child show significant hardship or disadvantage. The Applicants argue that because both of them have raised concerns that they will suffer hardship or disadvantage if the applications for citizenship are denied:[17]
…consideration of this factor is relevant to the proper exercise of the discretion in section 24(2) of the Act and the current task of the Tribunal. Consideration should not be limited to those factors or examples listed in Policy (that typically demonstrate hardship or disadvantage) but should encompass all material raised before the Tribunal.
[17] ASFIC para. 74.
In that context, presumably, the Applicants then[18] refer to Macquarie Dictionary definitions cited in the Policy definition of significant hardship or disadvantage/detriment (see [44] above).
[18] ASFIC para. 75.
Reference is then made by the Applicants[19] to Mortimer J’s comments in G v MIBP at [66] that nothing in the statutory scheme indicates that an applicant must establish “some positive, tangible need to have citizenship”. Her Honour says:
Rather, an application for citizenship is an opportunity for a person to become a full and formal member of the Australian community, with all the reciprocal rights and obligations that entails.
[19] ASFIC papa. 77.
The Applicants concede that:[20]
There is no evidence before the Tribunal that the Applicants would suffer “significant hardship or disadvantage” as a result of a decision to approve their applications for Australian citizenship by conferral.
[20] ASFIC para. 78.
According to the Applicants, rather than being prerequisites to entitlement to citizenship, consideration of whether approval of the applications will be in the Applicants’ best interests and whether any hardship or disadvantage may be faced as a result of the Tribunal’s decision to approve or refuse their applications, should form part of the decision-making process.
The Applicants identify[21] the interests of the Applicants relevant to the decision to be made by the Tribunal in this matter as including:
·the freedom to travel and re-enter Australia;
·access to and continuity of quality education;
·consular assistance; and
·the ability to be a part of the community that they most identify with (including eventually having the right to vote).
[21] ASFIC para 85.
The Applicants identify the processing times for RRVs as a factor to be taken into account. Whether it is to be considered as a hardship or disadvantage is not spelt out. They contend that:[22]
The uncertainty regarding processing times for complex RRV applications means that should the Applicants seek to pursue their education in Australia (as is their current intention), there is no guarantee that if they return to the UAE to spend time with their parents during school vacation periods they will be able to re-enter Australia as permanent residents.
The Applicants’ permanent resident status has already had an adverse impact on their ability to pursue their education in Australia. If they recommenced their education in Australia while holding their current RRVs, the Applicants would risk separation from their parents and a possibility of not being able to re-enter, which would have a detrimental impact on their studies. They would also be at risk of psychological and emotional distress and be at physical risk if they were not able to return to Australia or depart in an emergency.
[22] ASFIC para. 90-91.
The Applicants’ mother in her statement of 7 March 2019 explains that it was the uncertainty surrounding the RRV process which caused her and her husband to relocate the children, including the Applicants to the UAE in 2017.
The Applicants submit[23] that status as Australian citizens, rather than permanent residents, will also affect their university tuition fees in the future. Australian permanent residents are required to pay tuition fees up front, unlike Australian citizens who have the option to defer their tuition fees under the Higher Education Loan Program (HELP). This, according to the Applicants, may have a direct impact on XJFZ’s ability to afford to pursue her chosen field of study (medical science). They cite CQJV and Minister for Immigration and Border Protection[24] (CQJV) in support of that proposition.
[23] ASFIC para. 94.
[24] [2017] AATA 653.
The Applicants also cite as a hardship or detriment the fact that the Applicants do not have access to Australian consular assistance and the exposure that the Applicants have, as girls, to “‘archaic’ laws that exist”[25] in UAE, particularly in relation to sexual assault.
[25] ASFIC para. 100.
The Applicants point out that their two siblings are both Australian citizens and that XJFZ has not lived in the UK since she was one year old and RRML has never lived in the UK.
XJFZ in her statement made 2 January 2019 says that she wants to become a doctor and wants to attend university in Australia but is worried that she will not be able to afford the fees which, as a non-citizen, she would need to pay up front. She says that she also wants to attend school in Australia but that there is a lack of freedom in travelling because of the RRV system. According to XJFZ, if her visa is not secure, she cannot be confident of completing her education.
The Applicants cite as another circumstance supporting their applications the High Court’s recognition of the constitutional right to vote citing Roach v Electoral Commissioner[26] at [7] (Gleeson CJ) and the statement by Mortimer J in G v MIBP at [89] that “the ‘right to vote is a central feature of citizenship. It is not a “want”: it is a civil and political right that inheres in all citizens”. The Applicants argue that approval of the Applicants’ applications for citizenship would be in the public interest “as they (the Applicants) are more likely to be politically engaged and conscious members of the Australian community if they have been accepted into that community from a young age”. No authority or basis for that proposition is identified.
[26] [2007] HCA 43; 233 CLR 162.
In their closing submissions the Applicants summarise the evidence of the Applicants’ mother, the salient aspects of which were:
·She does not hold a permanent visa to reside in the UAE. If she loses her job she will have 30 days to leave the UAE;
·She moved with XJFZ to the UAE in 2005 when XJFZ was 18 months old with the intention of setting up a business and then departing after six years;
·XJFZ has not lived in the UK since 2004;
·She did not intend that her children complete their education in the UAE which is not a good place for girls;
·RRLM was adopted from Sierra Leone in 2007;
·All of her children are now dependant on her husband’s UAEW visa;
·RRLM has never lived in the UK;
·Her brother, three uncles, an aunt and their children live in Australia;
·Her parents spend six months a year in Australia;
·No other family of the Applicants live in the UK;
·She is registered in NSW and Queensland as a veterinary surgeon;
·She was granted permanent residency in Australia in 2011 shortly after which she had business issues relating to her veterinary practice in the UAE;
·She arrived in Australia in 2017 with the family but shortly after issues with her veterinary hospital in Dubai forced her to return to UAE and she enrolled the Applicants in school in the UAE
·The Applicants had much more freedom in school in Australia than in the UAE;
·The Applicants are too young to go to boarding school;
·She would not put her children in boarding school in Australia if there was uncertainty as to their ability to exit or have the Applicants’ parents visit them;
·Due to her residency in the UAE she cannot renew the RRVs for more than 12 months at a time;
·The processing time for RRVs has increased
·They now own a house in Perth;
·She intends to return to Australia within the next two years after the business in the UAE has stabilised;
·Whether the Applicants are citizens or not will affect their university fees;
·The Applicants do not consider the UAE to be a permanent home and they do not identify with the UK;
·The department has the right to reject an application for an RRV so receipt of an RRV is not guaranteed;
·If either Applicants’ RRV is refused they lose the right to Australian education as residents;
·The time for processing RRVs has increased from eight weeks to 142 days.
The Applicants’ closing submissions referred to the Full Court setting aside part of the decision in G v MIBP, but noted that Mortimer J’s finding that the Tribunal in that case had inflexibly applied the Instruction was not challenged. The closing submission also cites [73] and [74] of the decision in MHA v G (see [48] above).
The Applicants state the circumstances relevant to the decision are:
(a)Their freedom to travel and to re-enter Australia given the unpredictable processing times for RRVs
(b)Access to and continuity of quality education;
(c)Their lack of ties to the UK and the UAE;
(d)Their intention to reside in Australia.
The closing submissions then reiterated the Applicants’ argument based on increasing RRV processing times and the difficulty that that would pose if the Applicants were to attend boarding school in Australia and the potential affect that that could have on the Applicants’ schooling.
The Respondent
The parties’ respective SFICs were prepared before the decision of the Full Court in
MHA v G was handed down. Insofar as the parties’ submissions addressed the issue of the status of the Policy, or at least those parts of the Policy which reflected the parts of the Instructions which were held to be unlawful in G v MIBP, the Full Court decision on
MHA v G answered those issues. Accordingly, the Tribunal does not need to address those parts of the parties’ respective submissions.
As noted above, the Respondent concedes that the Applicants both meet the eligibility criteria for the grant of citizenship by conferral.[27] The Respondents opening submission is:[28]
20.…that none of the policy guidelines apply. The applicants live with a responsible parent who is not an Australian citizen, and who is not eligible to become an Australian citizen because she does not meet the residency requirements. The applicants are not unaccompanied minors and they are not ordinarily resident in Australia. Further, the applicants would not suffer significant hardship or disadvantage if the applications for citizenship are not approved, and the applicants have accepted at [78] of their statement of facts, issues and contentions that there is no evidence before the Tribunal to suggest that they would suffer significant hardship or disadvantage.
21.Taking into account the applicants’ circumstances as a whole, there is nothing in the applicants’ circumstances that would otherwise make it desirable to grant citizenship to the applicants.
[27] RSFIC para. 19.1.
[28] RSFIC paras. 20 and 21.
In relation to the Applicants’ submissions that their interests will be affected if citizenship is not granted because they presently have less freedom to enter and leave Australia,

the Respondent says that the Applicants are both citizens of the UK and hold UK passports,

so their ability to travel internationally is largely unaffected by whether or not they hold Australian citizenship. While they hold RRVs, they can leave and re-enter Australia at will. In relation to the claims of delays caused by RRV processing, the Respondent says that the Applicants are included on their mother’s visa application and the Applicants’ mother has indicated her awareness of delays in processing applications for RRVs.

Accordingly, any risk that the Applicants’ RRV may expire before a new RRV application is processed can be mitigated by a timely renewal application. The Respondent also points out that in 2018 when an RRV application had been pending for less than two months, the Applicants’ mother requested that it be processed urgently so she could return to Australia for an antenatal appointment. The visa was then granted the following day.[29]
[29] T1/5, 8-12 in both matters.
The Respondent says that while the Applicants may consider that they could travel more conveniently as Australian citizens, refusing to grant them citizenship does not significantly impede their ability to travel to and from Australia.
In relation to the Applicants’ claims that their educations are being impacted by the citizenship status because if they were to visit their parents overseas during school holidays, they may not be able to return to Australia if their visa expires while they are overseas, the Respondent says that this can be largely avoided by ensuring that the visa applications are lodged in good time. Further, school holiday periods are relatively short. The Applicants are likely to know well in advance of each set of school holidays whether their visa may expire while they are out of the country and can plan accordingly.
The Respondent submits that the Applicants, as permanent residents, have the same access and entitlement to primary and secondary education in Australia as they would have as citizens. The Applicants’ parents have made a decision to educate their children in Dubai. If they instead chose to educate their children in Australia, they would be able to do so, even if the children are permanent residents, not citizens.
In relation to the issue of the Applicants being unable to access HELP (see [74] above), the Respondent says that little weight should be given to this consideration because, for the most part, any access to HELP will be as adults rather than as children, and at present, it is purely speculative that the Applicants will attend university in Australia. If the Applicants do choose to attend university in Australia, there is nothing to prevent them from applying for citizenship as adults and being granted citizenship at that time if they meet the eligibility criteria that would then apply.
The Respondent submits that the Policy in relation to significant hardship or disadvantage clearly suggests that in most cases, personal wants such as eligibility to HELP and the right to vote do not constitute hardship. The Respondent contends that the circumstances in CQJV were materially different to the present case. In CQJV the applicant was a

New Zealand citizen who had lived in Australia from early childhood, had attended school in Australia from kindergarten to her first year of university and had previously held a

Special Category visa. Her father applied for her to have permanent residency, and when this was granted, she no longer held a Special Category visa. After she had applied for permanent residency, there was a change in legislation that meant, had she retained her Special Category visa, she would have been eligible for HELP. Instead she had had to borrow money to pay for her university tuition up front. CQJV applied for citizenship but did not have 12 months permanent residency at that time. The Tribunal found that the CQJV’s inability to access the HELP scheme constituted significant hardship in the particular circumstances of that case. That case, according to the Respondent, does not assist the Applicants in the present case.
In relation to the claim that the Applicants are affected by not being able to access Australian consular assistance, the Respondent points out that as UK citizens, the Applicants have access to UK consular assistance and there is no suggestion that this is inadequate in any way. The Applicants also refer to the possibility of needing to leave the UAE on short notice if their next visa is not granted. The Respondent says that if the Applicants have a current RRV at that time, they will be able to enter Australia, otherwise, as UK citizens, they will be able to enter the UK.
The Respondent says that the claimed ties to Australia identified by the Applicants are; family members in Australia; a desire to live in Australia in the future; and a very recent property purchase in Australia by the Applicants’ mother. The Respondent submits that having family members in Australia demonstrates ties to people in Australian, but not to Australia and that the property purchase is recent and neither the Applicants nor their family live in the property.
In the Respondent’s submission, the stated desire of the Applicants to live in Australia in the future should be given minimal weight in circumstances where they have not yet spent any significant time in Australia. If either of the Applicants do subsequently migrate to and reside in Australia, that can be taken into account in future applications for citizenship.
The Respondent at paragraph 31 of his SFIC summarises his position as:
In summary, the applicants are seeking citizenship to gain access to privileges available to Australian citizens, in circumstances where they have spent minimal time in Australia and have minimal connection to Australia. If the policy is applied, the applicants do not meet the policy guidelines for the grant of citizenship and when all the circumstances of the applicants are considered, there are no other reasons why the discretion should be exercised to grant citizenship to the applicants.
Along the same lines at paragraph 35 of his SFIC the Respondent submits:
The most significant factor in the present case that is relevant to whether or not the applicants should be granted citizenship is the minimal time that the applicants have spent in Australia, including that they have never lived here for any significant period. The movement history of each applicant shows that since 2010, the applicants have generally made 1 trip to Australia per year that varies in length from 9 days (2016) to a month and a half (2011), with 2 such trips in 2018.
In relation to the Applicants’ mother’s statement that they came to Australia in June 2017 with the intention relocating to Australia, the relevant departmental movement records produced by the Respondent show that they arrived in Australia on 11 July 2017 and departed less than 4 weeks later on 6 September 2017 and that part of that time coincided with school holidays,[30] suggesting that the Applicants attended school in Australia for no more than a few weeks.
[30] See >
In relation to the submissions made by the Applicants on the best interests of the child, the Respondent contends that:
41.The best interests of the child is required to be taken into account as a primary consideration in all actions concerning children in fulfilment of Australia’s obligations under Article 3 of the Convention on the Rights of the Child (CROC). However, Australia’s obligations under CROC only apply to children within Australia’s territory or jurisdiction.
42.Neither of the applicants are, at the date of preparing this statement of facts, issues and contentions, in Australia’s territory or jurisdiction. According to the applicants’ movement history, in almost 2 years since the applicants lodged their applications for citizenship on 5 May 2017, the applicants have spent a total of only 76 days in Australia. This has been comprised of 3 visits to Australia from 11 July 2017 to 6 September 2017, 4 August 2018 to 30 August 2018 and from 12 December 2018 to 2 January 2019 (see AD1 and AD2).

Since that RSFIC was prepared the Applicants have spent little further time in Australia.

On 9 April 2020 the Respondent provided updated movement histories for the Applicants. Those histories show that since January 2019 both Applicants have come to Australia three times, once in May 2019 for seven days (1-8 May), once in August 2019 for 15 days (5-20 August) and for 21 days (19 December 2019 – 2 January 2020).
The Respondent contends that while the Applicants remain outside of Australia, the Tribunal is not required to consider the best interests of the children in making its decision in this matter. The Respondent does not say why that is the case, however, in any event, the Respondent makes submissions on that consideration as it is expressed in Chapter 22 of the Policy (see [62]-[63] above). With reference to the definition of best interest of the child as set out in the Policy, the Respondent contends:
46.1.Having Australian citizenship will not give the applicants any greater protection from violence, injury, neglect, abuse or exploitation.
46.2.The applicants’ parents are not citizens, but the applicants have 2 siblings who are Australian citizens. However, in the circumstances of the present case, there is no real suggestion that the applicants will be separated from their siblings on the basis that the siblings are citizens but the applicants are not. The only real (rather than speculative) suggestion that the family may be separated is if a decision is made to send the applicants to boarding school in Australia. This decision would be open to the applicants’ parents whether the applicants are citizens or permanent residents.
46.3.There is no suggestion that the exercise of the rights and duties of the applicants’ parents would be affected in any way if the applicants are granted citizenship.
46.4.Whether or not citizenship is granted is unlikely to affect the illicit transfer of the applicants, or their freedom of religion.
46.5.The views expressed by applicant XJFZ should be taken into account. However, nothing expressed in her letter dated 2 January 2019 amounts to a reason why it is in her best interests for citizenship to be granted.
46.6.The applicants have a low degree of integration into the community. As indicated above, they have only visited Australia for a few weeks each year, attended school for a few weeks in 2017 and have relationships with some family members in Australia. The Minister acknowledges that the applicants’ ability to integrate into the Australian community has been and may continue to be affected by decisions made by the applicants’ parents. However, there is no legal reason why their ability to integrate into the Australian community needs to be affected in any way, while they are children, by whether they are citizens rather than permanent residents.
In his closing submissions the Respondent deals with the effects of the decision in

MHA v G
and basically repeats the arguments raised in the RSFIC based on the Policy as set out above.
The Respondent reiterates his argument that the only Policy which would apply is that set out in the third bullet point under the heading “Children under 16 applying individually in their own right” on page 76 of 237. He submits[31] that the Applicants would not otherwise suffer significant hardship or disadvantage if their citizenship applications are refused and refers to Chapter 3 of the Policy and the direction therein as to what significant hardship or disadvantage/detriment means (see [44] above).
[31] Closing submission para. 13.
Applicants’ reply
The Applicants filed a reply to the Respondent’s closing submissions. That reply includes the following statements:
6.While the Applicants accept that their circumstances may not constitute significant hardship, they contend that there is no doubt that a refusal of their applications would cause them to experience significant disadvantage or detriment.
7.The disadvantages outlined by the Applicants should they not be granted Australian citizenship, those being:
a.    a lack of freedom to travel and re-enter Australia given unpredictable processing times for RRVs;
b.    deprivation of access to and continuity of quality education;
c.    disconnection from the country they consider “home” (given their lack of ties to the UK and UAE); and
d.    non-realisation of their intention to reside in Australia.
are significant as they relate to the Applicants’ futures and education.
8.The Applicants would suffer a clear absence or deprivation of advantage as well as unfavourable circumstances that are significant if they were not granted Australian citizenship.
The Applicants’ reply also reiterated the arguments around the unpredictability of the RRV process and the impact that that had, and would continue to have, on the Applicants’ travel and the parents’ travel and the affect that that has or would have on the Applicants’ education. It also responded to the Respondent’s submissions on the lack of ties to Australia and asserted that the Applicants’ most significant ties at this stage of their lives are family members and that two of their siblings are Australian citizens as well as the majority of their extended family.
CONSIDERATION
The Respondent concedes that the Applicants meet the criteria in s 21(5) of the Act and both parties identify the issue for determination as being whether the correct or preferable decision is to refuse to approve the Applicants’ becoming Australian citizens relying on the discretion in s 24(2) of the Act.
The Full Court decision in MHA v G has put beyond doubt the validity of the Policy.
The Tribunal understands that, while it is to be guided by the Policy in the exercise of a discretion (MHA v G at [65]; see [47] above), the Policy is not determinative, it is merely one factor that is to be taken into account. As Mortimer J put it in G v MIBP:
171.Justice or injustice is not found within a policy: it is found by looking at the overall circumstances of an individual’s case, with the principal focus being on the purpose and context of the statutory power, not the executive policy framed to guide it.
…
266.A Tribunal must give active intellectual consideration to what is the correct or preferable decision on the basis of all the material before it, in all of the circumstances before it. One of those circumstances is the existence, and content, of an executive policy.
The Applicants concede that the relevant Policy provision applying to them is that set out in the third bullet point on page 76 of 237, namely that an application for citizenship “would usually not be approved… unless… they would otherwise suffer significant hardship or disadvantage” (see [43] above).
The Applicants also concede that their circumstances may not constitute significant hardship, however, they contend that there is no doubt that a refusal of their applications would cause them to experience significant disadvantage or detriment (see [102] above). They identify the significant disadvantage or detriment as being:
a.a lack of freedom to travel and re-enter Australia given unpredictable processing times for RRVs;
b.deprivation of access to and continuity of quality education;
c.disconnection from the country they consider “home” (given their lack of ties to the UK and UAE); and
d.non-realisation of their intention to reside in Australia.
The disadvantage or detriment is significant, the Applicants say, because it relates to their education.
The Tribunal does not accept that argument. Dealing with each of the above identified claimed detriments:
(a)A lack of freedom to travel
The Tribunal accepts the Respondent’s argument that while the Applicants may consider that they could travel more conveniently as Australian citizens, refusing to grant them citizenship does not significantly impede their ability to travel to and from Australia. Generally, the ability of a citizen of any country to travel into and out of their country is going to be greater than that of a non-citizen. That is not a basis for, or even a relevant consideration in, granting citizenship. It is simply a function of international borders.
Insofar as the Applicants seek to argue that their international travel is somehow restricted or curtailed, as the Respondent points out, they are both citizens of the UK and hold UK passports. Their ability to travel internationally, other than into Australia, would be no greater than it is now as UK citizens if they were to be granted Australian citizenship.
The Tribunal accepts that the process of having to apply for RRVs is undoubtedly inconvenient, however, it is not a problem that cannot be addressed in the ways identified by the Respondent (see [85] above). The Tribunal also accepts that the whole process of renewal of visas, including RRVs, may be more difficult now because of COVID-19 as described in the Applicants’ mother’s statement dated

21 April 2020. That, however, and the uncertainty around the Applicants’ schooling in Australia caused by COVID-19, are not matters that give rise to significant disadvantage as those terms are defined in the Policy (see [44] above)
(b)Deprivation of access to and continuity of quality education
The Applicants are both enrolled, and have been for at least three years, in schools in the UAE. There is no evidence before the Tribunal that the education that the Applicants are receiving in the current schools is deficient or somehow of a lesser standard than would be available in Australia or in the UK. There is no basis upon which the Tribunal could draw the conclusion, which seems to be implicit in the Applicants’ argument, that the education available in the UAE is not a “quality education”.
The Applicants’ submissions focus on the impact that the need for RRVs and the claimed uncertainties surrounding the process of renewing RRVs has on the Applicants’ education. It is the Applicants’ parents’ desire to educate the Applicants in Australia while the Applicants’ parents both continue to live in the UAE.

The difficulties identified by the Applicants’ mother and stepfather primarily relate to the difficulties in the Applicants and their parents travelling between the UAE and Australia. Apart from saying that the Applicants have no ties to the UK, and in the younger Applicant’s case, has never lived in the UK, no explanation is provided as to why the Applicants could not be educated in the UK. They and their parents are citizens of the UK and hold UK passports so, presumably, none of the issues arising from the need to obtain visas would be apply if the Applicants were educated in the UK.
As the Respondent also points out, the Applicants as permanent residents, have the same legal rights to education in Australia as a citizen does. The claimed difficulties described by the Applicants in coming in and out of Australia are not “depriving” them of a quality education nor even depriving them of an education in Australia. There is simply no basis for the Tribunal to conclude that denial of citizenship will result in a “[d]eprivation of access to and continuity of quality education”
(c)Disconnection from the country they consider “home” (given their lack of ties to the UK and UAE)
The Applicants’ connection to Australia is not significant. The Respondent’s summary of the Applicants’ ties to Australia in his closing submissions is, in the Tribunal’s view, a fair statement:
24. The applicants have spent minimal time in Australia. Their longest stay in Australia has been a period of less than 2 months from 11 July 2017 to 6 September 2017. Aside from this, the applicants’ time in Australia has generally been limited to a few weeks each year. Although they have extended family and some friends in Australia, they have had limited involvement in the Australian community aside from the school and community activities they engaged in during the part-term in which they attended school in Australia in 2017.
The Applicants’ time spent in Australia more recently has similarly been minimal (see [98] above). While COVID-19 and the associated travel restrictions may explain the fact that the Applicants have not been to Australia since January this year, the fact remains that the time that they have spent in Australia has been minimal and, in the Tribunal’s view, insufficient for any significant ties to have developed.
(d)Non-realisation of their intention to reside in Australia.
The Respondent responds to this ground as follows:
31. …The applicants’ future intention to reside in Australia does not at this stage warrant the exercise of the discretion in s 24(1) in their favour in circumstances where to date, their time in Australia has been so limited. Intentions are not always realised, as can be seen from the evidence given by the applicants’ mother that she intended to move to Australia in 2012 and to reside here permanently when she came in 2017: Exhibit A3 at [8] and [10]. If the applicants are able to realise their current intention to move to and reside in Australia, they will be able to apply again for citizenship in the future. Further, it is unclear whether applicant RRML has any intentions as to her future residence separate to those of her parents.
The Tribunal agrees with the Respondent’s submission. A mere desire, which appears to be more a desire on the part of the Applicants’ mother rather than the Applicants themselves, is a consideration to be taken into account, however, is not a consideration in the present circumstances that should be given any significant weight. The Applicants’ relocation to Australia is presently still a matter of speculation and appears to be dependent on a range of factors and circumstances, primarily their mother’s financial affairs in the UAE.
The best interest of the child
While the ASFIC cites Allsop J’s statement in Perez (see [64] above) and says that “This should be the approach followed by the Tribunal in the current matter” (para. 71), the Applicants do not explain how that statement of his Honour should be applied to the facts and circumstances of the present case, or even more generally, how the provisions of Chapter 22 of the Policy apply to the present case. Neither the Applicants’ closing submissions nor their submissions in reply refers to the best interests of the Applicants as children.
The Respondent’s submissions on the issue of the best interests of the child are set out at [99] above. The Tribunal agrees with the Respondent’s submissions. Insofar as the best interests of the Applicants as children, as distinct from the best interests of the Applicants’ education, their freedom to travel and their disconnection from the country that they consider home, none of the considerations identified in the Policy (see [63] above) applies for the reason identified by the Respondent.
Insofar as the Applicants have raised what they say are disadvantages or detriments that they will suffer if they are not granted citizenship, they are disadvantages that they suffer or will suffer (according to them), as children. In that sense the Tribunal’s consideration of those matters, particularly the Applicants’ education, is considering them in the context of the Applicants being children. The Tribunal is satisfied that in considering the matters that have been raised by the Applicants it has done so in line with Allsop J’s above cited statement, both in the context of the Policy and generally.
The consideration of the best interests of the child in the context of an application for a grant of Australian citizenship was succinctly summarised by the Tribunal in Wijewardhanage and Minister for Immigration and Border Protection[32] as follows:
[39]Australia is a party to the Convention on the Rights of the Child, having ratified that instrument in 1990. The Policy notes that Article 3 of that Convention commits states parties to take into account the rights of children in all decisions concerning them made by courts and administrative bodies, among others. The enumerated rights in the Convention include the right to a nationality and to be cared for by the child’s parents (Article 7), to medical assistance and health care (Article 24), to social security support (Article 26) and to education (Article 28). The Convention places considerable emphasis on the importance of maintaining the family unit and the bond between parents and children.
[40]In all the circumstances of this matter, it would be difficult to conclude that Krishni and Tristan would suffer significant hardship or disadvantage if refused citizenship. They remain with their parents and will have their care and attention; I have no evidence that they would be at risk of going without the essentials of life. They will have access to the basic services provided in Australia to all residents, including education, health care and social security.
[32] [2018] AATA 746.
In a similar vein the Tribunal in GZQZ and Minister for Immigration and Border Protection[33] summarised the consideration as follows:
[35]Although the best interests of the child is not defined in the Convention on the Right of the Child, the Preamble recognises that every child is entitled to protection from violence and abuse; families should be respected; and the child should be able to preserve his or her identity.
[36]There is no evidence before the Tribunal that if GZQZ is not granted Australian citizenship at this time, his best interests, as informed by the Convention, will be compromised. GZQZ is protected by his mother from violence and abuse; the family is able to remain together at present (apart from the detention of the father); and his identity is preserved.
[33] [2017] AATA 1052.
A useful discussion of the considerations relevant to the best interests of the child in the context of a citizenship application is contained in Han and Minister for Home Affairs[34] at [29]-[35]. A refusal to grant citizenship to either of the Applicants would not affect their rights as a child identified in Chapter 22 of the Policy (see [63] above) arising out of the conventions identified in the Policy (see [61] above).
[34] [2019] AATA 3325.
The Tribunal is also mindful of the Policy provisions relating to the assessment of significant hardship or disadvantage/detriment set out in Chapter 3 of the Policy (see [44] above). As the Policy makes clear, there is a difference between personal needs and personal wants in considering whether a person’s circumstances constitute a hardship or disadvantage. The description of personal wants set out in Chapter 3, aspirations rather than needs, in the Tribunal’s view, provides an apt description of the matters that have been raised by the Applicants. It is undoubtedly the case that the Applicants’ ability to come and go would be greater if they were citizens rather than permanent residents. It may also be the case that if the Applicants were ever to want to go to university in Australia, as citizens, they may have some access to financial resources that a non-citizen would not have (even assuming that the present system remains in place). That, however, does not mean that the circumstances that they now find themselves in relation to their travel and education mean that they are “suffering significant hardship or disadvantage”.
In relation to the claims that the Applicants will not be able to vote or access HELP,

the Tribunal notes that Chapter 3 of the Policy in defining significant hardship or disadvantage/detriment (see [44] above) provides:
Personal wants
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). Personal wants
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).

The Tribunal finds that the Applicants’ circumstances do not come within the scope of the exception to the usual decision under Chapter 7 of the Policy that children under 16 applying individually in their own right would not be approved under s 24 (see [43] above)
Having determined that the Applicants do not come within the exception to the usual result under the Policy, do the Applicants’ individual circumstances provide a reason for the policy not to apply? Are there reasons why, in the case of one or both of the Applicants, the Policy under Chapter 7 of the Policy should not be applied or should be outweighed by other considerations? The Tribunal is of the view that there are not.
Independently of the Policy, the Tribunal is not satisfied that “looking at the overall circumstances of an individual’s case, with the principal focus being on the purpose and context of the statutory power”, to use Mortimer J’s words in G v MIBP (see [57] above), that there are reasons to exercise the discretion under s 24(2) of the Act to grant the Applicants citizenship. While;
(a)the process of the Applicants coming and going may be easier if they were citizens rather than permanent residents;
(b)they may, in the future, have some access to financial resources to assist with university that they would not have if they were not Australian citizens at that time; and
(c)they may wish to be Australia citizens,
these are not, in the Tribunal’s assessment, sufficient reasons to grant the Applicants citizenship.
As noted above, the validity of the Policy to guide the decision maker in exercising the discretion under s 24(2) of the Act is now beyond question and, guided by the Policy and taking all of the circumstances into account, the Tribunal finds that the usual policy of applications of children under 16 applying in their own right not being approved should apply in the present case.
DECISION
The delegates Decisions (as defined in [1] above) are affirmed.

I certify that the preceding 122 (one hundred and twenty -two) paragraphs are a true copy of the reasons for the decision herein of Deputy President Boyle

.................................[SGD]....................................
Associate
Dated: 4 June 2020

Date(s) of hearing: 2 May 2020

Counsel for the Applicant: Ms A Graziotti

Solicitors for the Applicant: Estrin Saul Lawyers

Counsel for the Respondent: Ms A Ladhams

Solicitors for the Respondent: Australian Government Solicitor

Date(s) of hearing:	2 May 2020
Counsel for the Applicant:	Ms A Graziotti
Solicitors for the Applicant:	Estrin Saul Lawyers
Counsel for the Respondent:	Ms A Ladhams
Solicitors for the Respondent:	Australian Government Solicitor