Ru and Minister for Immigration and Citizenship (Citizenship) - [2025] ARTA 1862

Ru and Minister for Immigration and Citizenship (Citizenship) [2025] ARTA 1862 (24 September 2025)
Applicant/s:  Guo Ru
Respondent:  Minister for Immigration and Citizenship
Tribunal Number:                2025/0452

Tribunal:General Member S. Fenwick
Place:Melbourne
Date:24 September 2025

Decision:The Tribunal sets aside the decision under review and remits it for reconsideration in accordance with the direction that the discretion under s 24(2) of the Australian Citizenship Act 2007 (Cth) not be exercised.

.......................[SGD]...........................
General Member S. Fenwick
Catchwords
CITIZENSHIP – application for Australian citizenship by conferral – applicant aged 15 at the time of application – applicant undertaking schooling overseas – whether applicant usually resident in Australia – consideration of best interests of the child – decision set aside and remitted
Legislation
Administrative Review Tribunal Act 2024 (Cth)
Australian Citizenship Act 2007 (Cth)
Cases
Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634
Minister for Home Affairs v G [2015] FCAFC 79
Plaintiff M64/2015 v Minister for Immigration and Border Protection 258 CLR 173
Secondary Materials
Citizenship Procedural Instructions
Statement of Reasons
BACKGROUND

Mr Ru applied to the Tribunal on 15 January 2025 for review of the decision of a delegate of the Respondent Minister dated 18 December 2024 refusing the grant of Australian citizenship by conferral. The decision was made under the broad discretion to refuse found in s 24(2) of the Australian Citizenship Act 2007 (Cth) (the Act).
The Applicant is a national of The People’s Republic of China. He first arrived in Australia at a young age as a tourist and has lived here since 2020, obtaining his permanent residency in mid-2023. Mr Ru was aged 15 at the time of his application for citizenship which was lodged on 25 April 2024. In August 2024 the Applicant departed Australia to undertake studies as a boarder in a high school in America. Both of Mr Ru’s parents have been granted Australian citizenship and established themselves here as business migrants.
Mr Ru was represented at the hearing and lodged a brief Statement of Facts, Issues and Contentions (ASFIC) as well as a bundle of evidence (AB). The Respondent lodged T documents (under the Administrative Review Tribunal Act 2024 (Cth)), a Statement of Facts, Issues and Contentions (RSFIC), Supplementary T documents, and a Joint Tender Bundle (JTB) (which incorporates the Applicant’s material).
Evidence was given at the hearing by Mr Ru and both parents.
LEGISLATION
Acquisition of Australian citizenship by conferral is dealt with under Subdivision B of Division 2 of the Act. Eligibility criteria are set out in s 21 and include, relevantly:
Person aged under 18
(5)       A person is eligible to become an Australian citizen if the Minister is satisfied 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.
Under s 24(1) of the Act the Minister must either approve or refuse an application for citizenship. This section provides further as follows:
(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).
Citizenship Policy Instruction 4 – Australian Citizenship by Conferral – Person under 18 (CPI 4) sets out policy considerations for the assessment of applications in these circumstances. CPI 4 states that to the extent the legislation allows for a discretion, a delegate must consider departmental policy where relevant and appropriate, while avoiding inflexible application [1].
CPI 4 expressly provides guidance on applications made by different cohorts including persons under 15 years [2]. It goes on to explain that the delegate must have due regard to the family unit [7]. It states further:
…
The intent of these policy settings is the child (and their responsible parent/s) intend to reside, or to continue to reside, in Australia or to maintain a close and continuing association with Australia, if the application was to be approved.
As it would be difficult for a child to meet the policy guidance on maintaining a close and continuing association with Australia, residence in Australia is generally the most relevant to a child’s circumstances. Therefore, checks must be made to confirm that the child’s movement records indicate the child resides in Australia. If it appears the child is not usually resident in Australia, further information must be requested from the lodging parent that the child is or will be residing in Australia, such as evidence the Australian parent has a relevant Australian court order that the child is to live in Australia with that parent or the child is enrolled in or attending school.
CPI 4 then provides that applicants under 15 are expected to meet one of several specified factors:
(a)Usually resident in Australia:
(i)living with a responsible parent who is an Australian citizen who consents to the application – described as likely to cover the vast majority of applicants and not a situation requiring further investigation;
(ii)living with a responsible parent who is a permanent resident who consents to the application – a situation said to apply where parents do not intend to apply for Australian citizenship;
(iii)living with a responsible parent who is not an Australian citizen and who consents to the application – in this situation, a delegate must assess whether the child would suffer significant hardship or disadvantage, if they were not to become an Australian citizen at this time. For example, the applicant may not have access to a scholarship only available to Australian citizens;
(b)Usually resident overseas and living with a responsible parent who is an Australian citizen and consents to the application – requiring an assessment as to whether the child and their parent has an intention to reside, or maintain a close and continuing relationship with Australia.
CPI 4 provides, in respect of the latter two sub-considerations, that delegates refer to CPI 12 – Assessing significant hardship, disadvantage or detriment for the purpose of Australian citizenship (CPI 12). Examples of common scenarios in this circumstance include difficulty obtaining visas, feeling safer if travelling as an Australian citizen, inability to access educational opportunities, and ineligibility to represent Australia in an international event unless they are an Australian citizen. In respect of educational opportunities, CPI 12 notes that citizenship is not a requirement for study in Australia and that permanent residents are entitled to Commonwealth supported places where available. It is acknowledged that HECS is limited to Australian citizens.
CPI 4 also provides guidance in respect of exercise of the discretion to refuse under s 24(2) of the Act [11]. Here, it provides that a best interests of the child assessment must be undertaken and is described as a ‘primary consideration’.
CPI 13 Best Interests of the Child Assessment restates Australia’s international legal obligations [3.1] and explains certain factors understood as relevant to this primary consideration [3.2]. These include that families should stay together as far as possible, the rights and duties of parents should be respected, the views of the child be given due weight, and the degree of their integration into the Australian community.
ISSUES
The sole issue in this matter is whether the discretion to refuse Mr Ru’s application for citizenship should be exercised.
EVIDENCE
There are two statements from Mr Ru, one undated (T3) and another dated 21 April 2025 (T15). He sets out the family’s association with Australia including the grant of a Business Innovation and Investment visa, and their decision to fully integrate into Australia society once eligible. The Applicant notes that with the grant of his permanent residency in 2023 he could not apply for citizenship until 2024. Mr Ru indicates that despite academic success and musical prowess, he was unable to obtain certain scholarships and international tour experiences. The Applicant also states that upon being accepted to a boarding school in America, an institution that accepts very few international students, he felt somewhat awkward representing Australia.
In the more recent statement, Mr Ru responds to the refusal decision in part by noting that as a boarding student in the United States, he lives in a dormitory and has no ongoing connection to the country. The Applicant states that he lives with his parents in Australia when home, and is required to vacate his dormitory during the US Summer academic break. Mr Ru describes the significant disadvantage of not being granted citizenship as including: inability to obtain HECS in the future; ineligibility for the Australian Science Olympiad Summer School; inability to enter certain musical competitions; and, difficulty participating in some international competitions.
I note also the statements provided by Mr Ru’s parents (T3; T15). In the latest statements, the Applicant’s parents note their grant of Australian citizenship and reiterate that Mr Ru’s primary and permanent home is with his parents in Sydney. The parents emphasise their substantial financial ties to Australia and their commitment to remain in Australia permanently.
The evidence at the hearing was entirely consistent with the statements. Mr Ru stated that he identifies as an Australian student and identified what he considered to be certain risks as a Chinese passport holder. He stated that he carries his Homeland Security paperwork with him, and has been advised by his institution (as with other students) to avoid political activity. Mr Ru gave evidence that he had participated in an international music tour, but his visa was approved quite late. He also gave evidence that he was prevented from participating in another due to his nationality.
Mr Ru confirmed in his evidence that he will be studying in the US until mid-2028. He did not return during previous short study breaks due to cost and inconvenience, as well – he said – as a concern about possibly being denied re-entry.
In her evidence, Mr Ru’s mother stated that she had accompanied the Applicant to the US on his initial enrolment, and would travel with him back to help settle him in his dormitory. She explained that they had selected Honolulu as their port of entry to the US after researching online which cities might afford trouble-free entry. The Applicant’s mother also explained that it is her son’s plan to return to study at university in Australia due to it being cheaper than other options. The parents would also like their son to work in their property development business in due course, but would also like him to gain some international exposure through his current studies.
I note for completeness the substantial amount of material lodged by the Applicant and his parents both for consideration as part of the citizenship application, and for the benefit of the Tribunal. The material substantiates Mr Ru’s life story, and the description provided in statements as to the family’s financial and social ties to Australia.
CONSIDERATION
In the ASFIC it is proposed that the issue in this matter is ‘[w]hether the Applicant is likely to reside in Australia or to maintain a close and continuing association with Australia’ if citizenship is approved [4]. It is contended that Mr Ru is in the US on a temporary visa, he and his parents maintain permanent residence in Australia, and this is his home [5]-[7].
At the hearing, the Applicant’s representative placed particular emphasis on the fact that Mr Ru meets the criteria in s 21(5) of the Act, being under 18 and a permanent resident at the time of his application. Further emphasis was placed on Mr Ru’s temporary residence in the US. It was also specifically contended that the factors set out in CPI 12 are ultra vires as they introduce hurdles in addition to the legislated criteria.
With respect to the definition of ‘residence’ and its use in the policy, it was contended that a person may have two residences and, in this case, the Applicant’s primary residence is in Australia. If hardship is to be taken into account, it was contended that this should be at the time of the application. It was also submitted that in addition to the examples provided in evidence, there is greater acceptance internationally of Australian citizenship compared to Chinese.
It was further contended that consideration of the best interests of the child means their best interests, not whether the alternative is acceptable (a proposition supported by reference to judicial authority).
The Respondent submitted that this matter involves the discretion under s 24(2) of the Act and consideration of the Applicant’s status as a person aged under 15 at the time of the application. It was contended that the examples of hardship or disadvantage identified in evidence were not of the nature contemplated by the policy. In addition, there is evidence that Mr Ru has successfully participated in opportunities overseas.
In the RSFIC it is contended that Mr Ru is not usually resident in Australia and the Tribunal cannot be satisfied as to this fact while he is studying in the US through to 2028 [21]-[24]. It is contended that refusal is not against the Applicant’s best interests as he will retain his status as a permanent resident.
I note that the Respondent concedes that the Applicant meets the requirements of s 21(5) of the Act. As noted, the Applicant’s case is built upon this foundation and also the need to disregard CPI 12. The Respondent identifies relevant authorities in the RSFIC on the consideration and application of policy. The starting point here is the frequently cited decision in Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) ALD 634, which held that there are benefits in administrative decision making following policy as it is an aid to consistency, but only where the policy is not inconsistent with the legislation.
More recently, the High Court of Australia restated this approach in Plaintiff M64/2015 v Minister for Immigration and Border Protection (2015) 258 CLR 173, noting the benefits arising in areas of high volume decision making (at [54]). This authority was cited in Minister for Home Affairs v G [2019] FCAFC 79, where the Full Court of the Federal Court of Australia specifically adopted it in connection with the use of policy pertaining to under-age children in the context of legislative discretion (at [65]).
There is a relatively wide gap in this instance between the head legislative provision for eligibility in s 21 of the Act, and the varying policy provisions addressing applicants under 18 years of age. It appears to me from CPI 4 that an important distinction is made between applicants aged 15 and under, and those in the next cohort. For those aged 15 and under, the policy stresses consideration of the family unit in the context of an intent to reside and continue to reside in Australia. In contrast, the policy refers to those aged 16 or 17 years in terms of their capacity to understand the commitment they make in becoming citizens (at [9]).
CPI 4 also makes clear that when considering the discretion to refuse, which is the legislative power that was exercised in the decision under review, I must undertake a best interests of the child assessment. A preliminary question that arises is what emphasis to place upon the sub-considerations, or perhaps more accurately, sub-categories of applicant identified (at [7]). It is plain enough that Mr Ru does not fit into any of the four sub-categories; his circumstances are different. Despite this, a deal of attention has been paid in this matter to the hardship guidelines in CPI 12, which are referred to in respect of two specific scenarios.
It appears to me the more relevant question is Mr Ru’s usual place of residence, and indeed I raised this in closing submissions. I consider that in the context of lengthy international studies in which the vast majority of time is spent overseas, it is very hard to sustain the position that the Applicant is usually resident in Australia.
This is not the end of the inquiry. Resident itself is raised in the policy in the context of the family unit, and their close and continuing association with Australia. The overwhelming weight of evidence in this matter, from the family migration background to the adoption of Australian citizenship by the parents, to Mr Ru’s own schooling history, is to the effect that the family has a close and continuing relationship with Australia. Furthermore, there is evidence that the family wish Mr Ru to return to undertake higher study in Australia and work in the family business.
These are all relevant and important factors to take into account. Finally, I must undertake a best interests of the child assessment. I highlighted above what appear to be the more relevant factors arising in the context of this matter, and they include, broadly, the needs and wishes of the family unit, the views of the child and the overall connection with Australia.
The evidence demonstrates to my satisfaction that all these factors point toward the interests of Mr Ru being served by the discretion to refuse not being exercised in his circumstances. Mr Ru himself, along with his parents, are permanent residents of Australia and his parents indeed are or are becoming citizens. The choice was made for him to study overseas but despite this making him usually resident elsewhere, I consider that this element is of less weight overall than the other factors I have identified.
Mr Ru was a child at the time of the application and remains young and – to some extent – vulnerable as an international student in the US. I consider his best interests are served by the family maintaining consistent forms of citizenship and therefore the discretion in s 24(2) of the Act should not be exercised.
DECISION
For the reasons given above the Tribunal sets aside the decision under review and remits it for reconsideration in accordance with the direction that the discretion under s 24(2) of the Australian Citizenship Act 2007 (Cth) not be exercised.

37. I certify that the preceding thirty-five (36) paragraphs are a true copy of the written reasons for the decision herein of General Member S. Fenwick

...............................[SGD].................................
Associate
Dated: 24 September 2025

Date of hearing:
29 August 2025

Solicitors for the Applicant:

Solicitors for the Other Party:

Raymond Charles Turner, Ray Turner Immigration Lawyers

Jason Law, Australian Government Solicitor