Sandhu and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Citizenship)
[2022] AATA 5
•6 January 2022
Sandhu and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Citizenship) [2022] AATA 5 (6 January 2022)
Division: GENERAL DIVISION
File Number(s): 2021/1161
Re: Charnkamal Sandhu
APPLICANT
Minister for Immigration, Citizenship, Migrant Services and Multicultural AffairsAnd
RESPONDENT
DECISION
Tribunal:Mr S Evans, Member
Date:6 January 2022
Place:Sydney
The decision under review, being a decision of a delegate of the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs, is set aside and the matter is remitted to the Respondent for reconsideration with the direction that Mr Sandhu meets the general residence requirement in subsection 22(1) of the Act.
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Mr S Evans, Member
CATCHWORDS
CITIZENSHIP – application for citizenship by conferral – whether the applicant satisfies the residence requirement under paragraph 21(2)(c) of the Australian Citizenship Act 2007 (Cth) (‘the Act’) – whether the applicant satisfies the general residence requirement under section 22 of the Act - whether the discretion under subsection 22(6) of the Act is enlivened – relevant law and policy considered – applicant’s circumstances considered – decision under review set aside and remitted
LEGISLATION
Australian Citizenship Act 2007 (Cth)
CASES
Rodrigueza and Minister for Immigration and Citizenship [2013] AATA 508
SECONDARY MATERIALS
Australian Citizenship Policy Statement
Revised Citizenship Procedural Instructions - CPI 12 – Assessing significant hardship, disadvantage or detriment for the purposes of Australian citizenship
REASONS FOR DECISION
Mr S Evans, Member
6 January 2022
INTRODUCTION
Charnkamal Sandhu is a 20 year-old citizen of New Zealand who has lived in Australia since February 2003 as the holder of a Special Category (subclass 444) visa. From 20 November 2020 he has held a Partner (Permanent) (subclass 801) visa.
On 4 January 2021 Mr Sandhu made an application for Australian citizenship by conferral. In the application he acknowledged that he did not meet the general residence requirement for conferral of Australian citizenship and indicated he was seeking an exemption on the grounds of significant hardship or disadvantage. A delegate of the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (‘the Respondent’) determined that Mr Sandhu did not meet the criteria for exercise of the discretion and his application was refused on 26 February 2021. Mr Sandhu seeks review of the delegate’s decision at the Administrative Appeals Tribunal (‘the Tribunal’).
ISSUE TO BE DETERMINED
There is no dispute that Mr Sandhu does not meet the residence requirement set out in paragraph 22(1)(c) of the Act as he was not in Australia as a permanent resident for the 12 months immediately before the day he made his application for Australian citizenship.
As such, the issue to be determined is whether Mr Sandhu would suffer significant hardship or disadvantage such that the discretion provided by subsection 22(6) of the Act should be exercised in his favour to allow him to satisfy the residence criteria at paragraph 21(1)(c) of the Act.
LEGISLATIVE FRAMEWORK
The relevant legislation is contained in the Australian Citizenship Act 2007 (Cth) (‘the Act’).
Subsection 21(2) of the Act sets out the general eligibility requirements for a person to become an Australian citizen by conferral. Paragraph 21(2)(c) sets out the residence requirements that an applicant must satisfy:
21 Application and eligibility for citizenship
…
General eligibility
(2) A person is eligible to become an Australian citizen if the Minister is
satisfied that the person:
(a) is aged 18 or over 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; and
(c) satisfies the general residence requirement (see section 22) or the special residence requirement (see section 22A or 22B), or satisfies the defence service requirement (see section 23), at the time the person made the application; and
(d) understands the nature of an application under subsection (1); and
(e) possesses a basic knowledge of the English language; and
(f) has an adequate knowledge of Australia and of the responsibilities and privileges of Australian citizenship; and
(g) is likely to reside, or to continue to reside, in Australia or to maintain a close and continuing association with Australia if the application were to be approved; and
(h) is of good character at the time of the Minister’s decision on the application.
The general residence requirement referenced in paragraph 21(2)(c) is set out in section 22:
22 General residence requirement
(1) Subject to this section, for the purposes of section 21 a person satisfies the general residence requirement if:
(a) the person was present in Australia for the period of 4 years immediately before the day the person made the application; and
(b) the person was not present in Australia as an unlawful non‑citizen at any time during that 4 year period; and
(c) the person was present in Australia as a permanent resident for the period of 12 months immediately before the day the person made the application.
There is no dispute that Mr Sandhu satisfies the criteria at paragraphs 21(2)(a) and 21(2)(b). The relevant 12-month period commenced on 3 January 2020 and Mr Sandhu did not become a permanent resident until 20 November 2020 when he was granted a partner visa.
Mr Sandhu submits that his circumstances are such that the Ministerial discretion at subsection 22(6) of the Act should be exercised to allow him to satisfy the criteria at paragraph 21(2)(c) of the Act. Subsection 22(6) of the Act provides:
(6) For the purposes of paragraph (1)(c), the Minister may treat a period as one in which the person was present in Australia as a permanent resident if:
(a) the person was present in Australia during that period (except as a permanent resident or an unlawful non‑citizen); and
(b) the Minister is satisfied that the person will suffer significant hardship or disadvantage if that period were not treated as one during which the person was present in Australia as a permanent resident.
The Australian Citizenship Policy Statement (‘the Policy’) and the Revised Citizenship Procedural Instructions (‘the Instructions’) set out departmental policy and provide guidance to decision makers in relation to the interpretation and exercise of the powers under the Act. Departmental policy and instructions assist decision makers by providing guidance on the interpretation of and exercise of powers under the Act. The Tribunal will usually apply departmental policy unless there are cogent reasons not to do so.
CPI 12 – Assessing significant hardship, disadvantage or detriment for the purposes of Australian citizenship, at section 3 contains relevant guidance on factors to be considered when exercising the discretion afforded by subsection 22(6) of the Act:
3.2. Meaning of ‘significant hardship or disadvantage’ and ‘significant
hardship or detriment’
The words ‘significant’, ‘hardship’, ‘disadvantage’ and ‘detriment’ are not defined in the Act.
The Macquarie Dictionary Online provides the following definitions:
significant important; of consequence.
hardship a condition that bears hard upon one; severe toil, trial, oppression, or need; an instance of this; something hard to bear.
disadvantage absence or deprivation of advantage; any unfavourable circumstance or condition.
injury to interest, reputation, credit, profit etc.; loss; to subject to disadvantage.
detriment loss, damage or injury; a cause of loss or damage.
The Instructions also consider some commonly encountered scenarios, including the ability of applicants to obtain work in Australia and access to education fee help. The Instructions state:
·Claimed inability to obtain work in Australia on the grounds that the employment is restricted to Australian citizens, and that comparable or alternative employment is not reasonably available.
Many employment opportunities with the Australian Public Service (APS) and other Commonwealth employers require a person to be an Australian citizen, or to become an Australian citizen before they can be appointed permanently. Comparable employment opportunities outside the Commonwealth may be limited, depending on the skills of the applicant. However, the potential hardship or disadvantage:
omay be considered a significant hardship or disadvantage/detriment, where a person is unable to obtain employment and therefore unable to adequately financially support themselves or their family due to their citizenship status;
omay not be significant where comparable work can be obtained as a contractor or the applicant could be engaged as an employee on probation until such time as they are eligible for Australian citizenship;
omay have greater significance where all types of position (e.g. temporary, permanent or contractor) require a security clearance for which Australian citizenship is a requirement.
…
Where hardship or disadvantage is being claimed in relation to his or her employment, consideration should be given to what evidence the applicant can produce as to potential employment, for example evidence of a conditional employment offer based on their being a citizen.
…
·The person claims they cannot access educational opportunities until they become an Australian citizen.
For example, the person claims they will not be able to afford to pay the higher fees imposed on some non-citizens and will suffer significant hardship or disadvantage as a consequence, or they claim that they will suffer significant hardship or disadvantage if they pay the fees.
Australian citizenship is not a requirement to study in Australia at the primary, secondary or tertiary levels in Australia. Permanent residents are eligible for Commonwealth supported places in Australian universities, where available. Although eligibility for financial assistance such as the Australian Government loan scheme HECS-HELP, is limited to Australian citizens, permanent humanitarian visa holders and some New Zealand citizens, aspiring students who do not qualify for such assistance may be able to defer tertiary enrolment until after they have acquired citizenship.
EVIDENCE
Mr Sandhu gave evidence at the hearing, as did his father Varinder Sandhu (‘Varinder Sandhu’).
Mr Sandhu lives with his mother, father and sister. His mother is in poor health and unable to work. Varinder Sandhu is the family’s sole income earner and works in an industry which has been heavily impacted by the COVID-19 pandemic. Consequently, Varinder Sandhu’s hours have been reduced from 40 to 28 hours per week and there is no longer overtime available to him. The household’s income has reduced significantly as a result.
Mr Sandhu was studying with access to the government’s higher education HECS-HELP student loan program. On 20 November 2020 Mr Sandhu became the holder of a Partner (Permanent) (subclass 801) visa (‘the partner visa’). Holders of partner visas are not eligible for access to HECS-HELP. Mr Sandhu was unaware of this at the time he applied for the partner visa.
Mr Sandhu submits that he would suffer significant hardship and disadvantage as he would be unable to afford to continue his studies should he be required to meet the residence requirement in section 22 of the Act. The details of the hardship Mr Sandhu contends he would experience are set out in two statutory declarations.
In a statutory declaration dated 3 December 2020, Mr Sandhu writes in part:
I, Charnkamal Singh Sandhu, [address]
do hereby solemnly declare and affirm that I have been severely disadvantaged with my career opportunities within Australia due to being a non-citizen of Australia. I arrived in Australia in the year of 2003 and since then I have completed my schooling in Australia, from primary, all the way to High School! Overall it has been 17 years for myself living in Australia! Earlier this year I had an opportunity working at the ATO as a CSR, I had passed all the requirements of this job but unfortunately I was not an Australian Citizen and therefore could not commence this role, which was quite devastating for me! I will attach my conversation with the ATO with this document.
Furthermore, when I apply for Internships within University, they all ask me to be an Australian Citizen which further limits my work opportunities as to my studies. Overall, if I obtain my Australian Citizen, I believe I would get more opportunities to grow my career experience and partake in Federal and Defence jobs.
In addition to this, I also have limited benefits of receiving payments from the government as I am a NZ citizen! Throughout 2018-2019 I received youth allowance for 6 months and it was officially ceased as I was not an Australian Citizen. As I have been living in Australia for more than 17 years it is my right to receive such payments! I am a full-time university student who is only eligible to receive youth payments if I am an Australian Citizen up to the completion of my full-time studies. Overall, this has caused a significant financial burden towards my parents who then cover my student expenses, which can easily be accommodated through my right of claiming government benefit of a youth allowance. Therefore, if I receive my Australian Citizenship, I believe that it can assist me financially and support me through my full time studies and career opportunities for the future.
In a subsequent statutory declaration dated 17 June 2021 Mr Sandhu writes in part:
I …am a current University Student at [university]. I began studying at this university in 2019 where I was assisted by the commonwealth support loan HECS to pay my fees for my course when I was a New Zealand SCV Holder. However, this all changed at the end of 2020 when I was made a Permanent resident of Australia. My Fees for semester one of 2021 were close to $7000 and my father did not have such an amount to pay for these fees, so he went ahead and applied for a credit card to do so. My father has been trying to do as much he can do for the family as our Family financial situation has been really degrading and on top of this, he must pay the with credit card amount off, with high interest. My Father is the only single earner of the house as my mum is not well due to her condition of diabetes. Everything was going well with my focus of studies, but due to this it has made my study and career situation really worsen as l will not be able to commence further studies to due hardship. All my friends will be going into the next year of the degree and I will be behind, which is really disheartening for me as I have put extreme efforts into university and this is how I get treated just because I have become an Australian Resident, despite living in Australia for most of my life. I am trying to find a job so I can assist my father financially, but due to Covid-19 jobs have been hard to find as it is quite competitive. I honestly believe that my future will be tarnished if l do not complete my studies as no longer my father Is able to afford the fees.
[errors in original]
During the hearing into his application Mr Sandhu was questioned by the Minister’s representative. He was asked about the nature of the hardship and disadvantage he would experience should the reviewable decision be affirmed.
He explained that without access to a HECS-HELP loan, he would be unable to afford to continue his studies. Whilst acknowledging he could defer his studies until such time as he met the residence requirement and made a successful application for Australian citizenship, he is afraid that should he defer for more than one year he will be required to re-enrol in his course. He believes that should he be required to re-enrol, there is a strong possibility that he may not receive credit for his studies to date owing to a change of curriculum. Should he be required to reapply, he may not be accepted back into his chosen course.
Mr Sandhu is also concerned that without Australian citizenship his employment options would be limited. He has aspirations to work in government or defence.
Finally, being in a position where he cannot afford to continue to study on account of the inability to access HECS-HELP support has resulted in him feeling frustrated and anxious about his future.
Mr Sandhu holds these concerns irrespective of the fact that he was expected to meet the residence requirement as of 21 November 2021, shortly after the date of hearing.
CONSIDERATION
The question for the Tribunal is whether Mr Sandhu would suffer significant hardship or disadvantage should the discretion provided by subsection 22(6) not be exercised in his favour.
In the present circumstances, I consider that Mr Sandhu’s future employment is not a consideration that weighs in favour of the discretion in subsection 22(6) being exercised. There is no evidence of him having an offer of employment contingent on his being an Australian citizen. Further, his aspirations for employment requiring citizenship are far enough into the future that he could conceivably make a new application and obtain citizenship in advance of his status becoming an impediment to employment.
The Respondent contends that an inability to access to HECS-HELP does not rise to the level of demonstrating significant hardship or disadvantage. In support of this contention I am referred to previous decisions of the Tribunal including Rodrigueza and Minister for Immigration and Citizenship [2013] AATA 508 (‘Rodrigueza’) in which the Tribunal found that an inability to access HECS ‘does not constitute a significant hardship or disadvantage’. The Tribunal also acknowledged the possibility that the applicant in Rodriqueza may have to delay his studies until he was eligible for HECS, but this was not considered a significant hardship or disadvantage.
The departmental policy which was applicable is reproduced in Rodriqueza. The policy distinguished between needs and wants, stating in part:
When making a decision regarding whether a person’s circumstances constitute “significant hardship or disadvantage” officers should be aware of the difference between personal needs and personal wants.
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 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.
The Instruction cited in Rodriqueza is no longer departmental policy. The present policy acknowledges that inability to access education opportunities is a common scenario when considering significant hardship or disadvantage in relation to citizenship conferral, but makes no distinction between needs and wants. Rather, decision makers are advised they ‘should exercise their discretionary power to decide whether or not a person would suffer significant hardship or disadvantage if a period of temporary residence in Australia was not treated as a period of permanent residency’.
Mr Sandhu’s application stands apart from others in so much as he was accessing HECS-HELP until he was granted a partner visa with a view to obtaining Australian citizenship. Prior to that, he held a Special Category (subclass 444) visa, which entitled him to access to HECS-HELP, since arriving in Australian in 2003.
I accept that an inability to access the HECS-HELP scheme does not generally constitute hardship. However, to withhold from Mr Sandhu HECS-HELP to which he was previously entitled, is to deprive him of an advantage an advantage he previously possessed.
In Mr Sandhu’s circumstances, he was in receipt of HECS-HELP and had made plans based on the expectation he would continue to have access to the scheme. These plans were set in place prior to the COVID-19 pandemic, when Varinder Sandhu had a greater earning capacity and was able to support his son financially should he have access to HECS-HELP. As it is, Mr Sandhu has been deprived of a significant advantage in being unable to defer payment of his university fees, in circumstances where his family is unable to finance the change on account of external events over which they had limited control, specifically the impact of the pandemic on the family’s income.
The Respondent submits that Mr Sandhu ‘would have been well aware of his eligibly for HECS-HELP scheme, given amendments to the HECS-HELP scheme came into force on 1 January 2016’. Mr Sandhu gave evidence that he was not aware he would become ineligible for HECS-HELP until he contacted his University regarding obtaining a public transport concession card. I accept his evidence in this regard.
For these reasons, I am satisfied that Mr Sandhu has been deprived of a benefit which, in the circumstances which have arisen as a consequence of the pandemic, amount to a significant disadvantage.
The Respondent acknowledged during the proceedings that Mr Sandhu would meet the residency requirements for a grant of citizenship shortly after the hearing. When this was put to Mr Sandhu in the context of making a new application, he raised the prospect of being unable to access HECS-HELP during the processing of a new application.
Though it is not determinative, I am satisfied that should he reapply for Australian citizenship he would be unable to access HECS-HELP until such time as his new application is processed. In circumstances where the Respondent accepts, given the passage of time, that Mr Sandhu would appear to be eligible for a grant of Australian citizenship, reapplying would serve only to generate further disadvantage for Mr Sandhu.
In the circumstances, I have determined that the correct and preferable decision is that Mr Sandhu’s application Australian citizenship be reconsidered with the direction that discretion afforded by subsection 22(6) of the Act be exercised so that he meets the general residence requirement in paragraph 21(2)(c).
CONCLUSION
For the reasons stated above the decision under review, being a decision of a delegate of the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs, is set aside and the matter is remitted to the Respondent for reconsideration with the direction that Mr Sandhu meets the general residence requirement in subsection 22(1) of the Act.
I certify that the preceding 37 (thirty-seven) paragraphs are a true copy of the reasons for the decision herein of Mr S Evans, Member
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Associate
Dated: 6 January 2022
Date(s) of hearing: 22 September 2021 Date final submissions received: 6 October 2021 Applicant: Self-Represented Solicitor for the Respondent: Ms S Prasad, MinterEllison
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