RZKH and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Citizenship)

[2021] AATA 2764

RZKH and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Citizenship) [2021] AATA 2764 (9 August 2021)

Administrative Appeals Tribunal

ADMINISTRATIVE APPEALS TRIBUNAL	)
)	Nos: 2020/8265,
GENERAL DIVISION	)	2020/8266, &
)	2020/8267

Re: RZKH
First Applicant

And: QSFN
Second Applicant

And: WKXB
Third Applicant

And: Minister for Immigration, Citizenship,
Migrant Services and Multicultural Affairs
Respondent

DIRECTION

TRIBUNAL:  Dr Stewart Fenwick, Senior Member

DATE OF CORRIGENDUM:            9 August 2021

PLACE:           Melbourne

The Tribunal directs the Registrar, pursuant to section 43AA(1) of the Administrative Appeals Tribunal Act 1975, to alter the text of the decision in this application as follows:

1. After “2020/8265” on page 1 of the decision, insert: “, 2020/8266 & 2020/8267”.

...[sgd]...............................................................

Senior Member

Division:GENERAL DIVISION

File Numbers:         2020/8265

Re:RZKH  

FIRST APPLICANT

AndQSFN

SECOND APPLICANT

AndWKXB

THIRD APPLICANT

AndMinister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

RESPONDENT

DECISION

Tribunal:Dr Stewart Fenwick, Senior Member

Date:9 August 2021

Place:Melbourne

The Tribunal affirms the decisions under review.

...[sgd]....................................................................

Dr Stewart Fenwick, Senior Member

Catchwords

CITIZENSHIP – refusals of Australian citizenship by conferral – eligibility of persons aged under 18 – exercise of discretion to refuse citizenship approval – Citizenship Policy – children under the age of 16 – Convention on the Rights of the Child – best interests of the child – whether significant hardship or disadvantage – reviewable decisions affirmed

Legislation

Australian Citizenship Act 2007

Cases

Minister for Home Affairs v G [2019] FCAFC 79

Secondary Materials

Department of Immigration and Border Protection, Citizenship Procedural Instructions – Australian Citizenship by Conferral – Person under 18 (CPI no 4, 1 January 2021)
Department of Immigration and Border Protection, Citizenship Procedural Instructions – Best interests of the child assessments (CPI no 13, 10 April 2019)

Convention on the Rights of the Child, opened for signature 20 November 1989, 1577 UNTS 3 (entered into force 2 September 1990)

REASONS FOR DECISION

Dr Stewart Fenwick, Senior Member

9 August 2021

BACKGROUND

1. These applications lodged 11 December 2020, seek review of decisions of delegates of the Respondent Minister of 17 and 19 November 2020, refusing to approve applications for citizenship under s 24(2) of the Australian Citizenship Act 2007 (the Act).

2. The Applicants are the children of Mr I, who is a citizen of Pakistan and who appeared on their behalf at the hearing. The Applicants are currently aged 13 (RZKH), 12 (QSFN), and 5 (WKXB), and are all citizens of Pakistan. Mr I and his wife are not Australian citizens.

3. Each of the Applicants holds a permanent Employment Nomination Scheme (Subclass 186) visa. RZKH and QSFN first arrived in Australia on 30 November 2013, when aged 6 and 4 respectively. WKXB first arrived in Australia on 11 May 2016, when still an infant.

4. Applications for citizenship were lodged on 23 September 2020, and the family departed for Pakistan on 30 September 2020, where they have remained due to COVID-19 restrictions.

5. The applications were refused in each case because the delegates determined that the Applicants did not meet guidelines set out in the Citizenship Policy, having also considered the best interests of each child.

6. The Respondent lodged T documents and ST documents in respect of each application, and a Statement of Facts, Issues and Contentions. Mr I lodged a bundle of documents (Exbibit A1) comprising:

   (a)letter dated 14 September 2020, and two undated letters;

   (b)emails dated 8 April, 10 May and 24 May 2021;

   (c)letter from RZKH’s school;

   (d)copies of airline tickets; and

   (e)a property lease.

7. An interpreter in the Punjabi language assisted at the hearing.

   LEGISLATION

8. Under s 21(5) of the Act a person is eligible for citizenship if the Minister is satisfied the person is aged under 18 at the time of the application and the person is a permanent resident at the time of the application.

9. Notwithstanding this provision, the Minister may refuse a person’s application under s 24(2) of the Act, despite being eligible under s 21(5) (and a number of other eligibility types).

10. A policy document has been prepared that addresses the situation of persons under 18 (CPI 4 – Australian Citizenship by Conferral – Person under 18 (CPI 4)). It sets out a number of factors for consideration when the discretion in s 24(2) of the Act is being exercised in the case of children under 15 applying as individuals. Under paragraph 7.1 of CPI 4, decision makers are to consider, relevantly, whether the child is:

    ·usually resident in Australia and living with a responsible parent who is not an Australian citizen and who consents to the application. If the child would suffer significant hardship or disadvantage if they were not to become an Australian citizen at this time (for example, if the child would not have access to a certain scholarship which is only available to Australian citizens), then this may be a relevant consideration for decision-makers …

    Applications must also be carefully considered to ensure that the child and their family unit of their relevant responsible parent, intends to reside, or to continue to reside, in Australia or to maintain a close and continuing relationship with Australia should the application be approved.

11. Paragraph 10.1 of CPI 4 states that when considering use of the discretion to refuse under s 24(2) of the Act, the best interests of the child must be taken into account. This is described as a primary consideration but is not the only consideration.

12. The best interests of the child assessment is addressed in a separate policy (CPI 13 – Bests interests of the child assessments (CPI 13)). CPI 13 explains that the United Nations Convention on the Rights of the Child (the Convention) is the source of the obligation for administrative authorities to make this a primary consideration in all actions concerning children (paragraph 3.1).

13. Paragraph 3.2 explains that the phrase ‘best interests of the child’ is not defined, but is informed by Convention principles. Certain factors are highlighted as ‘most likely’ to be relevant in citizenship decisions. They comprise: protection from various forms of harm; that families should be able to stay together; the rights and duties of parents and family members; the right of a child to preserve their identify; prevention of child trafficking; freedom of religion; weight is to be given to the views of the child as appropriate; and the degree of the child’s integration into the Australian community.

    EVIDENCE

14. Mr I stated at the hearing that he commenced operating an import business in Australia in 2008 and that he was always travelling for business. The family love Australia and it was always intended they would remain here.

15. After an earlier visa refusal decision, the family returned to Pakistan and then returned to Australia after a year and a half, and the children returned to school in Australia. In 2020, they signed a one-year lease on a house.

16. Mr I acknowledged that he and his wife are unable to meet the residency requirements for citizenship. For a combination of family reasons and the location of property, it is necessary for them to travel to Pakistan when required.

17. With respect to the Applicants’ schooling in Australia, Mr I stated that RZKH spent one month in school in 2013. She was enrolled in 2014 but due to his wife’s pregnancy they returned to Pakistan. She also spent some time in school in Australia in mid-2016. RZKH next spent two months in school here in early 2019.

18. Mr I stated the family spent February to September 2020 in Australia before returning because of his father’s ill health. The family wanted to return to Australia but had been unable to do so.

19. Currently, the Applicants are being home schooled by their mother. The Applicants have participated in the past in some home schooling from Australia and Mr I stated they are enrolled in a school in Melbourne.

20. Mr I agreed that the Applicants have spent the majority of their school life attending school in Pakistan.

21. Mr I stated that he has a company registered in Australia but at present employs no staff. He described business as unstable and that he would prefer to be in Australia as it is a safer place than Pakistan. His intention was for the children to attend school here and he and his wife would continue to travel as required.

    SUBMISSIONS

22. Mr I’s written submissions focussed largely upon the benefits accruing from Australian citizenship. He identifies: superior education and health systems; ability to travel with a ‘highly valued passport’; a ‘safer and better future’ for his children; the ‘extra edge’ provided by Australian Government assistance to citizens overseas; and, the ease of obtaining foreign visas.

23. Mr I also submitted that policy and procedure do not have the force of law.

24. At the hearing, the Respondent’s representative submitted that the Applicant’s did not meet the criteria established in the relevant policy. Consistent with the Respondent’s Statement of Facts, Issues and Contentions, it was also submitted that according to authority there is no inconsistency between the policy and the legislation (Minister for Home Affairs v G [2019] FCAFC 79).

25. It was submitted that on the evidence the Applicants did not meet the applicable policy guideline. That is, the Applicants were not usually resident in Australia, and hardship was not made out. Specifically: the Applicants would continue to be able to obtain foreign visas during the life of their visas; safety overseas was a function of local law and practice, and consular assistance was available to the Applicants; and RZKH’s future eligibility for HECS was speculative.

26. With regard to the best interests test, it was submitted there was no evidence that the Applicants’ interests would be compromised in a manner relevant to the Convention. It was also submitted that it was unclear whether the Applicants or the family had an intention to reside in, or maintain a close and continuing relationship with, Australia.

27. The Respondent’s representative accepted that COVID-19 had affected the travel plans of the family and that it was a difficult situation. However, this did not amount to an identifiable individual hardship.

    CONSIDERATION

28. The Applicants are eligible for citizenship under s 21(5) of the Act. However, a wide discretion to refuse citizenship has been established by s 24(2).

29. Under the circumstances, it is appropriate, and lawful, to give consideration to the policy guidelines that have been established. Only one of the specific guidelines is relevant to the particular circumstances of this matter (CPI 4), as well as the best interests of the child test.

30. Having considered the evidence, and the submissions of the parties, I am unable to find in the Applicants’ favour. This is because it does not appear to me that the test of significant hardship or disadvantage is met in this case.

31. Having considered the factors identified as relevant to the best interests of the child, I am also unable to identify evidence that demonstrates, to my satisfaction, that such Convention-based factors are enlivened in this case.

32. The Applicants have some, but only relatively limited, exposure to Australia and the Australian education system. In any event, they retain access to the system through their permanent residence visas.

33. As I have noted, Mr I’s submissions identified almost exclusively a series of advantages arising from the grant of Australian citizenship, albeit that some were presented in a manner emphasising negative consequences for the children. I consider he has been transparent in his evidence and submissions, which is to be commended. However, this material does not disclose anything amounting to the kind of important or serious outcomes contemplated in the policy.

    DECISION

34. The Tribunal affirms the decisions under review.

I certify that the preceding 34 (thirty -four) paragraphs are a true copy of the reasons for the decision herein of Dr Stewart Fenwick, Senior Member

...[sgd]....................................................................

Associate

Dated: 9 August 2021  

Date of hearing:	3 June 2021
Date final submissions received:	8 June 2021
Advocate for the Applicants:	Mr I
Advocate for the Respondent:	Ms Olivia Hicks
Solicitors for the Respondent:	Australian Government Solicitor