Salam, Ilhama and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration)

[2020] AATA 3688

Salam, Ilhama and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2020] AATA 3688 (21 September 2020)

Division:GENERAL DIVISION

File Number(s):      2019/2473

Re:SALAM, Ilhama

APPLICANT

AndMinister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

RESPONDENT

DECISION

Tribunal:Member O'Loughlin

Date:21 September 2020

Place:Adelaide

The Tribunal affirms the decision under review.

..................[sgnd]......................................................

Member O'Loughlin

Catchwords

MIGRATION – eligibility for Australian Citizenship application - permanent or enduring physical or mental incapacity – demonstration of English language and Australia - decision under review affirmed.

Legislation

Australian Citizenship Act 2007

Cases

Re Drake and Minister for Immigration and Ethnic Affairs (No 2)

REASONS FOR DECISION

Member O'Loughlin

21.09.2020

1. The applicant seeks review of a decision by a delegate of the Minister for Home Affairs dated 14 January 2019.  That was a decision refusing the applicant Australian Citizenship.

2. It is not controversial that the applicant, Ilhama Salam, is eligible to become an Australian citizen pursuant to S. 21(5) of the Australian Citizenship Act 2007 (“the Act”) which 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.

3. Despite being thus eligible to become an Australian citizen, the Minister may refuse to approve the applicant becoming an Australian citizen under s. 24(2)

   Application to become an Australian Citizen

4. On 23 September 2017, the applicant’s mother, Karima Anwar applied to become an Australian Citizen by submitting a form 1290 to the Department of Immigration and Border Protection.

5. The applicant was included as an applicant for Australian Citizenship on the same form and at the same time.[1]

   [1] Exhibit R1, T Documents at page 55.

6. There is no evidence that orders have been made under the Family Law Act 1975 removing parental responsibility for the applicant from Karima Anwar. Therefore, for the purposes of the Act and pursuant to the definition in section 3, Karima Anwar is a responsible parent of the applicant.

7. As Ilhama Salam’s application to become an Australian citizen was made on a form that also contains an application by a responsible parent, her application satisfies the requirements of S 46(2A) (b) of the Act.

8. The Tribunal accepts the respondent’s submission that the Tribunal should be guided in its consideration of this application by the Citizenship Policy (“the policy”) published by the then Department of Immigration and Border Protection on 1 June 2016, a relevant extract of which appears in exhibit R1 at pages 30 to 54.

9. The respondent referred to the decision of Re Drake and Minister for Immigration and Ethnic Affairs (No 2)[2] as authority for the proposition that although the policy is not binding on the Tribunal, the Tribunal will usually apply policy guidelines unless there are cogent reasons in a particular case not to do so.  The Tribunal has not identified any cogent reasons not to apply policy guidelines in relation to this application.

   [2] (1979) 2 ALD 634 at 645.

10. Ilhama Salam was born in 2007 and is under 16 years of age.

11. Although her mother’s application for citizenship has been refused, the policy provides[3] that, if a child under 16 applies on the same form and at the same time as a responsible parent and that parent is refused, the child must be assessed in their own right.

    [3] P. 76 in a note in the last paragraph.

12. The applicant must therefore be assessed in her own right.  The Tribunal takes this to mean that the considerations applying to children under 16 applying individually in their own right are to be applied to the applicant in these circumstances.

13. The policy provides that children under 16 applying in their own right would usually not be approved unless they are permanent residents at the time of the application and decision and also satisfy one of 5 further criteria.

14. The Tribunal is satisfied that the applicant was a permanent resident of Australia at the time of the application and at the time of the decision.  The Tribunal must therefore consider whether the applicant meets one of the 5 additional criteria.

15. The first is that the applicant was under 16 when applying and living with a responsible parent who is an Australian citizen and who consents to the application.  The applicant’s mother is not an Australian citizen and the applicant cannot satisfy this criterion by reason of residing with Karima Anwar.  There is no evidence that the applicant resides or was residing at the time of application with any other person who is a relevant responsible parent.

16. The Tribunal finds that the applicant does not satisfy this criterion.

17. The second criterion is that the applicant is usually resident with a permanent resident responsible parent who, relevantly, has decided not to apply for Australian citizenship.  This does not apply and the Tribunal finds that the applicant does not satisfy the second criterion.

18. The third criterion is relevantly that the child would suffer significant hardship or disadvantage if their application is not granted while they are younger than 16 years of age.

19. The applicant’s mother was asked about hardship to her children if they do not become Australian citizens.  She said that she would like this country to become her children’s country to live.  She said she would like her children to have the opportunity to work and be promoted.  She would like them to feel they are citizens.

20. The Tribunal heard evidence from the applicant, Ilhama Salam.  She said that she likes living in Australia and is grateful for the education she receives.

21. Finally, the Tribunal heard evidence from the applicant’s sister, Rehana Salam.  She said that she would like to be part of the Australian community and call Australia home.  She said that she wants to grow up and be a lawyer.  She said that she is worried that if she is not an Australian citizen she won’t be able to discover this world.  Neither the witness nor her mother was able to explain to the Tribunal why they believe that they are not entitled to travel overseas as a permanent resident.

22. The Tribunal finds that the hardships and disadvantages suggested are speculative and may be avoided if the applicant makes a successful application for citizenship in her own name. 

23. The Tribunal has considered the evidence and finds that the applicant has not shown that she will suffer significant hardship or disadvantage and does not satisfy the third criterion.

24. The fourth and fifth criteria relate to unaccompanied humanitarian minors and are not relevant to this applicant.

25. The Tribunal finds that the applicant does not satisfy any of the criteria relevant to children under 16 applying individually in their own right and so the policy contemplates that the applicant would usually not be approved under s24.

26. The Tribunal finds that the applicant does not meet the policy guidelines in Chapter 7 of the Policy.

27. Finally, in the case of an applicant who does not fit the policy guidelines in Chapter 7 of the Policy, 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[4].

    [4] R1, p.42 Citizenship Policy p 76 of 237 paragraph 1.

28. The Tribunal has not identified anything in the circumstances of this case that suggests that there are unusual circumstances that warrant approval of the application.

    DECISION

29. The Tribunal affirms the decision under review.

I certify that the preceding 29 (twenty-nine) paragraphs are a true copy of the reasons for the decision herein of Member M O’Loughlin.

......[sgnd]...................................

Administrative Assistant Legal

Dated: 21.09.2020

Date of hearing: 19.06.2020  

Applicant: Ms Fatima Ali of Skylight.   

Respondent’s representative: Mr T Ellison of Australian Government Solicitor.