RVXY and Minister for Immigration and Border Protection (Citizenship)
[2015] AATA 857
•10 November 2015
RVXY and Minister for Immigration and Border Protection (Citizenship) [2015] AATA 857 (10 November 2015)
Division
GENERAL DIVISION
File Number
2015/1250
Re
RVXY
APPLICANT
And
Minister for Immigration and Border Protection
RESPONDENT
DECISION
Tribunal Deputy President PE Hack SC
Date 10 November 2015 Place Brisbane The decision under review is set aside and a decision substituted that the applicant's application for Australian citizenship be approved.
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Deputy President PE Hack SC
CATCHWORDS
CITIZENSHIP – whether citizenship should be conferred – applicant aged 16 at time of application – does not satisfy residence requirements – policy considerations – Australian Citizenship Instructions – not satisfied of significant hardship or disadvantage – consideration of unusual nature of circumstances – applicant integrated into Australian community – nature of father’s employment overseas – accuracy of Embassy advice – best interests served by granting citizenship – decision set aside and remitted with direction citizenship be approved.
LEGISLATION
Australian Citizenship Act 2007 (Cth), ss 19G, 21, 22A, 22B, 24,
CASES
Singh v Minister for Immigration and Citizenship [2011] FCA 685
Singh v Minister for Immigration and Citizenship [2012] FCAFC 12; (2012) 199 FCR 404
Shams v Minister for Immigration and Citizenship [2011] FCA 1505; (2011) 199 FCR 423
SECONDARY MATERIALS
Australian Citizenship Instructions
REASONS FOR DECISION
Deputy President PE Hack SC
10 November 2015
Introduction
The applicant is a permanent resident of Australia and is presently aged 17 years. Because of his age he will not be identified in these reasons; instead, and without intending any discourtesy, I will call him Tom. He is the adopted son of an Australian citizen (who, for simplicity, I shall call Mr P) and the son of the person who is now the spouse of Mr P. In December 2014 Tom made application to the respondent Minister to become an Australian citizen. On 16 February 2015, a delegate of the respondent refused that application.
Tom seeks a review of that decision. I have concluded that the decision was not correct and that a decision approving Tom becoming an Australian citizen ought be made instead. As the reasons that follow demonstrate, I have considerable doubts about the correctness of the respondent’s policy approach in matters of this nature but, even informed by that policy, I would make the same decision.
Facts
The facts are not in issue. Tom was born in March 1998 in a country in South East Asia. In 2007 Mr P was transferred in his employment to that country where he met, and eventually married, the applicant's mother. As the relationship developed, Tom met Mr P during weekends and from early 2008 lived with Mr P and his mother who was, by then, married to Mr P. Arrangements were made for Tom to attend an international school and to have additional schooling in the English language.
In late 2008 process was commenced for Tom to be adopted by Mr P in accordance with the domestic law of the country of his birth. After appropriate scrutiny by the civil authorities the adoption was approved in August 2010. Tom obtained an Australian visa in November 2010 and first came to Australia in early January 2011 when he obtained permanent residency. At that time it was anticipated that Mr P’s employment would bring him back to Australia and that he, and his family, would then live in Australia. With that prospect in mind Mr P made enquiries of the local Australian Embassy to ascertain the process for obtaining Australian citizenship for Tom. By email of 24 January 2011 he was informed by a senior Embassy official with responsibility for migration matters that,
[Tom] will need to meet the residency requirement for citizenship as per Form 1290.
There is a question, to which I shall return, about the accuracy of this advice. It will suffice for present purposes to say that, in light of this advice, and the fact that he had, by then, been informed by his employer of a plan to transfer him to another South East Asian country, Mr P did not proceed with the plan to obtain citizenship for Tom.
Tom has attended a boarding school in Queensland since July 2012 and will complete Grade 12 next month. He is, by all accounts, a good student, well-liked by staff and other students, and has participated fully in the academic, sporting and cultural aspects of school life. His marks are such that he is hopeful of being offered a place to study commerce or architecture at a leading university in Queensland next year. Since starting school, Tom has lived in Australia during school terms and has lived overseas with his parents during school holidays.
As I have said, Tom’s application for citizenship was refused on 16 February 2015. The basis of the refusal was that he did not satisfy the residence requirements of the Departmental policy contained in the Australian Citizenship Instructions. It was found, and not disputed by Tom, or by Mr P who represented him at the hearing, that in the four years prior to the making of the application, he was absent from Australia for 759 days and that in the 12 months prior he had been absent from Australia for 112 days.
Legislation
By virtue of s 21(1) of the Australian Citizenship Act 2007 (Cth) a person may make application to the Minister to become an Australian citizen. Following sub-sections of s 21 of the Act set out seven situations in which a person may be eligible to become an Australian citizen. They are explained in s 19G of the Act in these terms:
You may be eligible to become an Australian citizen under this Subdivision in 7 situations:
• you satisfy the general eligibility criteria and have successfully completed a citizenship test: see subsections 21(2) and (2A); or
• you have a permanent or enduring physical or mental incapacity: see subsection 21(3); or
• you are aged 60 or over or have a hearing, speech or sight impairment: see subsection 21(4); or
• you are aged under 18: see subsection 21(5); or
• you were born to a former Australian citizen: see subsection 21(6); or
• you were born in Papua: see subsection 21(7); or
• you are a stateless person: see subsection 21(8).
Where an application is made under s 21 of the Act, the Minister must approve, or refuse to approve, the person becoming an Australian citizen.[1] The Minister must not approve the application unless the person is eligible under one or other of sub-sections (2), (3), (4), (5), (6), (7) or (8) of s 21 of the Act.[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).[3] Additionally, there are various circumstances specified in s 24 of the Act where the Minister must not approve citizenship. None require consideration in the present case.
[1]See s 24(1) of the Act.
[2]See s 24(1A) of the Act.
[3]See s 24(2) of the Act.
The eligibility criteria applicable to Tom are with those in s 21(5) of the Act. It reads:
Person aged under 18
(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.
What is notable about that subsection is that it does not require an applicant to satisfy the “general residence requirement” set out in s 22 of the Act or the “special residence requirement” in s 22A or s 22B of the Act. It is, in that regard, markedly different to s 21(2), dealing with general eligibility, s 21(3) dealing with applicants with a permanent physical or mental incapacity and s 21(4), dealing with applicants aged 60 years or over or with a hearing, speech or sight impairment. Applicants in those categories are required, as a condition of eligibility, to satisfy the general residence requirement or the special residence requirement. Putting the matter as simply as possible, the general residence requirement obliges an applicant to have been present in Australia for at least three of the four years preceding the application and to have been present in Australia for at least 275 days in the year preceding the application. The distinction between the criteria for eligibility under s 21(5) and ss 21(2), (3) and (4) of the Act is an issue in the proceedings.
Departmental policy
In 2007, and coinciding with the commencement of what was then the newly revised Act, a policy document, the Australian Citizenship Instructions, was promulgated with the stated aim of providing,
… guidance on policy in relation to the interpretation of, and the exercise of powers under, the Act and the Regulations.[4]
[4]The version of the Instructions handed up by the respondent in the course of the hearing is one published on 1 July 2013. I have used the electronic version available on the Department’s website and said to be applicable to applications lodged between 4 November 2014 and 31 December 2014.
The Citizenship Instructions say this about applications for citizenship by persons aged 16 or 17:
5.12.6 Applicants aged 16 or 17
Applicants aged 16 or 17 at time of application must make an application on a form that contains no other application.
Applicants aged 16 or 17 would not usually be approved under s24 unless they are permanent residents at the time of application and decision and also meet the following policy guidelines:
·satisfies the residence requirement (unless they would suffer significant hardship or disadvantage if they had to meet this requirement). See section 5.17 Ministerial discretion – significant hardship or disadvantage (s22(6)) for guidance
·understands the nature of an application
·possesses a basic knowledge of the English language
·has an adequate knowledge of the responsibilities and privileges of Australian citizenship at the time of decision
·is likely to reside or continue to reside, or maintain a close and continuing association with Australia.
…
In the case of an applicant who does not meet the policy guidelines above, decision makers must consider the full circumstances of the case, including the best interest of the child (see section 5.12.2 Best interests of the child) to determine whether the application nevertheless warrants approval because of the unusual nature of those circumstances.
Section 5.12.2 of the Instructions, to which reference is made in the discussions on the exercise of the residual discretion, is in these terms:
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 less than 18 years of age at the time of decision on the application and the child is living in Australia. See Chapter 18 – Best interests of the child.
Chapter 18, to which attention is drawn, advises officers to assess the best interests of a child in relation to decisions under the Act directly relating to the child and identifies the exercise of the discretion to refuse under s 24(2) of the Act as a particular occasion to consider the best interests of the child. It then continues, in Chapter 18.3:
The meaning of ‘best interests of the child’ is not defined, but is informed, in part, by the principles in the [Convention on the Rights of the Child]. 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.
Consideration
Without more, it might be thought that the absence of a residence requirement in the eligibility criteria for applicants under 18 years suggested a parliamentary intention that such applicants need not satisfy a residence requirement and that, accordingly, the imposition of a residence requirement by way of the Citizenship Instructions was inconsistent with the Act. But that argument has been put, and rejected, in two decisions of the Federal Court, decisions that bind me unless they are capable of being distinguished. The first, Singh and Minister for Immigration and Citizenship,[5] concerned an Australian-born child of Indian citizens who were lawfully in Australia and who had lived in Australia since the birth of the child. At the time of the application s 21(5) of the Act did not require an applicant under 18 (at the time of the application) to be a permanent resident.[6] On review of the Minister’s decision refusing to approve conferral of citizenship the Tribunal affirmed the decision by reference to the Citizenship Instructions. The appeal from that decision was heard by Marshall J who concluded, by reference to the Explanatory Memorandum that accompanied the Australian Citizenship Bill 2005 (Cth), that the Citizenship Instructions were not ultra vires and that the Tribunal had not erred in having regard to the requirements of those Instructions.[7] An appeal from his Honour’s decision was heard by the Full Court,[8] which held that the Citizenship Instructions constituted a valid policy which the Tribunal was entitled to consider.[9]
[5] [2011] FCA 685.
[6]Sub-section 21(5) is in its present form, and requires permanent residence as an eligibility criterion, as consequence of an amendment made by the Australian Citizenship Amendment (Citizenship Test Review and Other Measures) Act 2009, No 90 of 2009: see Item 5 of Schedule 1.
[7][2011] FCA 685.
[8][2012] FCAFC 12; (2012) 199 FCR 404. Special leave to appeal this decision was refused, partly on the grounds there was no reason to doubt the correctness of the decision of the Full Court: see [2012] HCASL 119.
[9]At [69].
The second case, Shams v Minister for Immigration and Citizenship,[10] was heard after Singh at first instance but before the appeal was decided. By the time of the application for citizenship in that case the Act had been amended such that s 21(5) was in the form it now is; that is, it required an applicant under 18 years to be a permanent resident at the time of the application and at the time of decision. Justice Jacobson followed the decision of Marshall J in holding that the Citizenship Instructions were not ultra vires and that the Minister, and thus the Tribunal, was entitled to consider, in the exercise of the s 24(1) discretion, a matter which is not a condition of eligibility but which is referred to in the Citizenship Instructions as a factor to be taken into account in the decision whether or not to approve an application.[11]
[10] [2011] FCA 1505; (2011) 199 FCR 423.
[11] At [77] – [80].
Whilst it is possible to say that Singh is capable of being distinguished on the basis that the legislation has now changed, the decision in Shams is not able to be distinguished on a similar basis. Thus, and despite my initial impression, I am bound by authority to conclude that the Citizenship Instructions are not inconsistent with the Act in this respect. That being so, the Citizenship Instructions suggest that “usually” approval would not be given to an applicant aged 16 or 17 that did not satisfy the residence requirement unless they would suffer significant hardship or disadvantage if required to do so. The Citizenship Instructions, in clause 5.17, explain in some detail how significant hardship or disadvantage is to be assessed. I need not consider that detail, nor decide whether the distinction drawn between “personal needs” and “personal wants” is a valid distinction because, however the matter be viewed, I am not satisfied that requiring Tom to meet the residence requirements would entail significant hardship or disadvantage. It would be inconvenient certainly and might cause some disadvantage but not significant hardship or disadvantage.
It thus becomes necessary to consider the residual discretion to determine whether Tom’s application nevertheless warrants approval because of the unusual nature of his particular circumstances. In my view it does.
There are a number of features of his case, none of which are significant in isolation, but which, when considered collectively, persuade me that approval is warranted. First, it seems to me to be plain that Tom’s best interests, which must be regarded as a primary consideration, are served by granting him Australian citizenship. He has not only integrated into his adoptive family he has integrated significantly into the Australian community. The testimonials from his school speak glowingly to his integration and his considerable contribution to the school community. His wishes, clearly and capably articulated in his statement, are to put behind him his citizenship of birth and his ties to his country of birth and to become a citizen of Australia. It seems plainly to be in Tom’s best interests to have a full range of employment opportunities available to him. A grant of citizenship opens up those opportunities to him, including the opportunity of service in the armed forces, an area where he has already demonstrated considerable aptitude in the school cadets.
The nature of Mr P’s employment is unusual. It has kept him, unexpectedly, from resuming residence in Australia. The fact that Mr P has been based overseas during the four years that Tom’s residence is in issue has had the consequence that Tom, in order to maintain his family ties, has needed to travel out of Australia when able to do so during school holidays. But for that, he would have easily satisfied the residence requirement.
Additionally, it is inescapable that Tom would not have been in his present position, and would have already have had citizenship conferred, had the advice given to Mr P in January 2011 been clearer. Tom was then aged 12 years, an age at which the Citizenship Instructions did not require satisfaction of a residence requirement. Yet Mr P was informed to the contrary by the email of 24 January 2011. It is not an answer to say, as Mr Hawker, who appeared for the Minister, submitted, that a close reading of the Form 1290 would have revealed the true position. The email suggested, contrary to the Minister’s policy document, that a residence requirement was required. I am satisfied that dissuaded Mr P from pursuing Tom’s application for citizenship at that time and that, had he done so, the likelihood was that it would have been approved.
I am then satisfied that Tom’s circumstances are such as warrant the exercise of the discretion favourably to him. Mr Hawker did not suggest that there were any other criteria that needed to be assessed. In those circumstances I will set aside the decision under review and remit the matter to the Minister with a direction that Tom’s application for citizenship be approved.
I certify that the preceding 18 (eighteen) paragraphs are a true copy of the reasons for the decision herein of Deputy President PE Hack SC .................................[Sgd].......................................
Associate
Dated 10 November 2015
Date of hearing 19 October 2015 Applicant In person Solicitors for the Respondent Mr M Hawker, Sparke Helmore
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