Sarfaraz and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Citizenship) - [2021] AATA 2441

Sarfaraz and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Citizenship) [2021] AATA 2441 (22 July 2021)
Division:GENERAL DIVISION
File Number(s): 2020/1172
Re:Zia Jan Sarfaraz
APPLICANT

AndMinister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
RESPONDENT

File Number(s): 2020/1173
Re:Muhammad Omer Sarfaraz
APPLICANT

AndMinister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
RESPONDENT

File Number(s): 2020/1174
Re:Bibi Allah Sarfaraz
APPLICANT

AndMinister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
RESPONDENT

File Number(s): 2020/1175
Re:Muqadas Sarfaraz
APPLICANT

AndMinister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
RESPONDENT

DECISION
Tribunal:Chris Puplick AM, Senior Member
Date:22 July 2021
Place:Sydney

The decisions under review in respect of the following applications:
1.Zia Jan Sarfaraz (2020/1172);
2.Muhammad Omer Sarfaraz (2020/1173);
3.Bibi Allah Sarfaraz (2020/1174); and
4.Muqadas Sarfaraz (2020/1175);

are affirmed.
...................................[sgd]....................................
Chris Puplick AM, Senior Member
CATCHWORDS
CITIZENSHIP – application for Australian citizenship by conferral – refusal of citizenship – does not have a permanent or enduring physical or mental incapacity – application of Citizenship Procedural Instructions – suffers from Major Depressive Disorder – incapacity not a direct cause – minor children do not have Australian-citizen resident parent with whom they are usually resident – decisions affirmed
LEGISLATION
Australian Citizenship Act 2007 (Cth) s 21, 23A, 24 and 26
Law on Citizenship of the Islamic Emirate of Afghanistan [Afghanistan] article 9, 24 June 2000, available at: [accessed 20 July 2021]
CASES
Ahmadzai and Minister for Home Affairs (Citizenship) [2019] AATA 669
Butrus and Minister for Immigration and Border Protection (Citizenship) [2019] AATA 239
Fenn v Minister for Immigration and Migrant Affairs [2000] AATA 931
Shah and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] AATA 3979
Wijewardhanage and Minister for Immigration and Border Protection [2018] AATA 746
SECONDARY MATERIALS
Australian Citizenship Policy Statement
Citizenship Procedural Instruction 2 - Australian Citizenship by Conferral – Permanent or Enduring Physical or Mental Incapacity
Citizenship Procedural Instruction 4 - Australian Citizenship by Conferral – Person under 18
REASONS FOR DECISION
Chris Puplick AM, Senior Member
22 July 2021

Mrs Zia Jan Sarfaraz (the Applicant) was born in Afghanistan in 1976. At some date (which she cannot remember[1]) the Applicant and her husband fled to Pakistan. Her husband died in 2011. In May 2013 she was granted a subclass XB-204[2] permanent visa and thereafter arrived in Australia in October 2013. At that time, she was accompanied by her children (four sons and one daughter). It appears that, while in Pakistan, she was also granted refugee status by the United Nations High Commissioner for Refugees (UNHCR).[3]
[1] Ms Dominica Dorning (clinical psychologist) in her notes of 17 April 2019 suggests “1998/1999”.
[2] Refugee and Humanitarian / Woman at risk category.
[3] Tribunal documents (T-documents) (2020/1172) at 17.
On 8 June 2018 she lodged an application for Australian citizenship by conferral. In that application she included as additional applicants her three minor children: Muhammed Omar Sarfaraz (born January 2009); Bibi Allah Sarfaraz (born April 2005); and Muqadas Sarfaraz (born April 2004). Each of the three children were born in Pakistan. The Applicant’s two eldest sons (Aboubakir and Faisal, aged now 23 and 20 years respectively) are already the holders of Australian citizenship.
On 12 February 2020 a delegate of the Minister (the Respondent) made a series of decisions in relation to this combined application. The first decision was that the Applicant herself was not qualified for citizenship by conferral and thereafter decisions were made that, as a consequence of that finding, the applications of the minor children could not be approved.
On 28 February 2020 the Applicant sought a review of those decisions in this Tribunal where the matter was heard on 1 July 2021. The hearing was conducted using the Microsoft Teams platform in accordance with the Tribunal’s COVID-19 protocols. The Applicant was assisted by an interpreter in the Dari language.
Although the Tribunal must make separate decisions on each of the four applications, it will be convenient for the analysis of the various claims to be taken together in the first instance.
CITIZENSHIP BY CONFERRAL
Applications for citizenship by conferral are made under the provisions of the Australian Citizenship Act 2007 (Cth) (the Act). Once an application is made, the Minister must either approve or refuse the application.[4]
[4] Australian Citizenship Act 2007 (Cth) (Act) s 24(1).
An applicant must meet certain qualifications as specified in the Act[5] and, if they do, they must then undertake and pass the Citizenship Test[6] (unless they are exempted from so doing).[7] Once that is complete, a qualified applicant must make the Pledge of Commitment[8] (unless they are exempted from so doing) before their citizenship is finally granted.
[5] Act s 21(2).
[6] Act s 23A.
[7] Act ss 21(3)(d), 21(4)-(8).
[8] Act s 26.
As stated, in order to qualify for citizenship by conferral an applicant must satisfy a number of requirements which are set out in subsection 21(2) of the Act. The qualifying criteria are enumerated in paragraphs 21(2)(a) to (h).
Paragraphs (d), (e) and (f) of subsection 21(2) require the Minister to be satisfied that the applicant:
(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
…
In order for the Minister to be “satisfied”, subsection 21(2A) provides for a “Citizenship Test” to be undertaken by the applicant:
(2A)     Paragraphs (2)(d), (e) and (f) are taken to be satisfied if and only if the Minister is satisfied that the following apply:
(a)         the person has sat a test approved in a determination under section 23A;
(b)         the person was eligible to sit that test (worked out in accordance with that determination);
(c)         the person started that test within the period worked out in accordance with that determination and completed that test within the period (the relevant test period) worked out in accordance with that determination;
(d)         the person successfully completed that test (worked out in accordance with that determination) within the relevant test period.
However, under paragraph 21(3)(d) of the Act, the Minister may, in effect, waive the requirements of this provision in circumstances where the applicant:
(d)       has a permanent or enduring physical or mental incapacity, at the time the person made the application, that means the person:
(i)           is not capable of understanding the nature of the application at that time; or
(ii)          is not capable of demonstrating a basic knowledge of the English language at that time; or
(iii)         is not capable of demonstrating an adequate knowledge of Australia and of the responsibilities and privileges of Australian citizenship at that time; and
THE APLICATION OF ZIA JAN SARFARAZ
The basis of Mrs Sarfaraz’s application
The Applicant claims that she suffers from “a permanent or enduring physical or mental incapacity” such that she is relieved of the obligations to meet all the other relevant requirements of the Act. This is disputed by the Respondent.
Medical evidence
There is evidence in the form of statements from general practitioners Dr Khalilullah Hamid,[9] and Dr Neelam Dhabuwala[10], and Dr Assad Saboor[11] (a psychiatrist) which indicate that the Applicant suffers from a number of physical conditions including advanced osteoarthritis, rheumatoid arthritis, insulin dependent diabetes, obesity, chronic lower back and hand pain, and right shoulder tendonitis. Her back pain is also reported upon by Dr James van Gelder, a neurosurgeon and spine surgeon.[12] The general practitioners and Dr Saboor also refer to symptoms of anxiety, depression and generalised anxiety disorder.
[9] Dated 3 May 2019, 14 July 2020 and 17 March 2021.
[10] Dated 14 February 2018.
[11] Dated 19 September 2018, 18 May 2019 and 26 March 2021.
[12] Dated 19 December 2018.
At some stage (unspecified) the Applicant was granted the Disability Support Pension (DSP).
There are a series of reports from Ms Dominica Dorning, a clinical psychologist employed by STARTTS[13] who has been treating the Applicant for many years.[14] In a report of 16 August 2019 she states:
[13] NSW Service for the Treatment and Rehabilitation of Torture and Trauma Survivors.
[14] Reports dated 17 April 2019, 16 August 2019 and 14 April 2020.
Mrs Safaraz has attended regular counselling appointments over a period of two years at STARTTS in Coffs Harbour and Auburn (with the writer). She has engaged to the best of her capacity with the writer and her previous counsellor in Coffs Harbour. Mrs Safaraz has been provided with the early stages of evidenced based treatment for her symptoms of PTSD, anxiety and depression and only very minimal, if any improvements in her symptoms and functioning have been observed or reported. It is the writer's opinion that Mrs Safaraz's capacity to participate fully in counselling is limited by her limited formal education and illiteracy in her own language, concentration and memory problems and the complex nature of her pervasive trauma experience, combined with her current physical health difficulties.
Mrs Safaraz's symptoms of PTSD, anxiety and depression impact negatively and significantly on her functioning and have implications for her capacity to complete tasks, study and retain information. It is the writer's opinion that the impact of Mrs Safaraz's symptoms of PTSD, anxiety and depression on her functioning is such that she does not have the capacity to undertake the Australian Citizenship test. In addition, it is also my opinion that the enduring nature of Mrs Safaraz's psychological health problems and her limited capacity to benefit from psychological treatment means that her inability to complete the citizenship test will not change over time.
The functional implications of Mrs Safaraz's personal attributes, trauma experiences and her symptoms of PTSD, anxiety and depression for the citizenship test are as follows:
·Mrs Safaraz's enduring illiteracy in her own language and her lack of experience with formal education have resulted in her attempts at learning English in Australia to have resulted in limited success. In line with this, it is very unlikely that her English competency (particularly reading competency) will improve in the near future.
·Further to this Mrs Safaraz's memory and concentration difficulties associated with her symptoms of PTSD and distressing intrusive traumatic memories and thoughts further interrupt her capacity for learning the language and retaining general information about unfamiliar topics.
·In addition, Mrs Safaraz's persistent depression symptoms, particularly her sleep disturbance, day time fatigue, low mood, sadness and chronic pain negatively impact her motivation and capacity for task completion. This further limits her capacity for sustained attention and study of information.
·Mrs Safaraz's cognitive functioning is also negatively impacted by her PTSD and depression symptoms. Such that she has reported regular episodes of disorientation and confusion contributing to her getting lost, forgetting appointments or arriving very late to appointments despite frequent reminders, and reliance on others to remember important things like medication and to help her find her way to unfamiliar places.
oMrs Safaraz’s limited concentration and cognitive capacity have been further observed by the writer in session as she has difficulty attending to information for longer than a few minutes at a time and subsequently asks questions that have already been answered, stares blankly ahead or repeats information she has already told the writer.
oIn addition, Mrs Safaraz regularly struggles to follow up on tasks between sessions. She reports having forgotten what the task was or that she attempted and begun a specific task but that she does not have enough concentration endurance to sustain the completion of the task.
In an earlier report (17 April 2019) provided in support of the Applicant’s application for the DSP, Ms Dorning also outlined a family history for the Applicant which made reference to her suffering from domestic violence and abuse from her husband and being impacted by trauma resulting from the continuation of combat/war in Afghanistan. Ms Dorning also mentions that the Applicant is a member of the minority Hazara community. This particular report addressed criteria necessary for consideration by decision-makers in relation to a DSP application and, although it contains relevant information about the Applicant’s family history it does not address the issues necessary for consideration under the Citizenship Act.
These are addressed more directly in a third report of Ms Dorning’s (14 April 2020) in which she suggests that, in relation to a diagnosis of PTSD, depression and anxiety, although she (Ms Dorning) did not see the Applicant until October 2018, “it appears likely that she would have met the same diagnostic criteria at least a year prior to that (late 2017 onwards).” It is somewhat problematic to accept this retrospective diagnosis, especially as later in the same report Ms Dorning reports that “Mrs Sarfaraz also explained to the writer that her psychological and physical health have both deteriorated further since she was an English student at TAFE and she managed to obtain her provisional licence (approx. 2016).”
Policy considerations
Assessments of applications for citizenship must be made against both the statutory requirements set out in the Act, but also in line with the Australian Citizenship Policy Statement and Citizenship Procedural Instructions (CPIs) which have been issued to assist decision-makers. It should be noted that such Policy Statement and Instructions are just that, they exist to inform and guide decision-makers, but they do not have the force of law nor are they absolutely binding on those decision-makers.
The relevant CPI is CPI 2 - Australian Citizenship by Conferral – Permanent or Enduring Physical or Mental Incapacity. It sets out the tests which are held to be appropriate in the evaluation process as follows (emphasis in original):
3.4 Assessing incapacity
Decision makers should generally require a report from a specialist in the field of incapacity who has assessed or is treating the applicant, unless this would be unreasonable on the facts of the particular case. Decision-makers should consider whether it is necessary to query any inconsistency or ambiguity that may bear on the question of whether paragraph 21(3)(d) is satisfied.
When applicants are requested to provide reports from a specialist they should be given the Incapacity form (under development at the time of publication of this instruction).
This will assist the specialist to identify what should be included in the report.
Each limb of the provision must be met
There are two limbs to this provision.
·The applicant must have a permanent or enduring incapacity at the time of application. An enduring incapacity is one for which there cannot be a predicted recovery, or where if there is, it is long-term.
oExamples include but are not limited to where a person has a congenital birth defect or suffered a stroke and their prognosis of recovery is not predictable.
oWhen assessing whether a person suffering from longterm depression would have an enduring incapacity, one consideration would be whether the depression can be treated, and to what extent the person is incapacitated as a result of the depression. These are factors that need to be addressed specifically in the evidence provided by the applicant.
oWhen assessing applicants who suffer from physical or mental condition [sic], such as broken limbs, postnatal depression, or grief over the passing of a close relative, one consideration would be whether these are short term or long term conditions. Short term conditions would not usually meet this criterion.
·The incapacity must be the direct cause of the applicant not being capable of:
ounderstanding the nature of the application; or
odemonstrating a basic knowledge of English; or
odemonstrating that they have an adequate knowledge of Australia or the responsibilities and privileges of Australian citizenship.
A person who is illiterate will not necessarily have an incapacity of the kind that would meet the requirements of para 21(3)(d).
Assessments against Policy
In the first instance the Tribunal notes that the evidence about the Applicant’s physical conditions, diagnosed and reported by her general practitioners does not reveal any degree of physical incapacity which would prevent the Applicant from studying for or sitting for the Citizenship Test. Her various physical ailments do not apparently prevent her from enjoying a reasonable quality of life and do not seriously inhibit her day-to-day activities. The fact that the Applicant qualified for the DSP does not translate into any finding relevant to her levels of competence as far as her citizenship application is concerned.
Turning to an assessment of the Applicant’s claims of mental incapacity, there are several consequences which flow from the application of CPI 2 to the medical evidence before the Tribunal. The first of these is that the Policy requires evidence of incapacity to be “a specialist in the field of incapacity who has assessed or is treating the applicant”. This has the effect of ruling out reliance upon the evidence from the general practitioners.
Secondly, “[t]he applicant must have a permanent or enduring incapacity at the time of application.” This means that in this Applicant’s case, there must be evidence about her condition as at 8 June 2018. Ms Dorning’s report is dated 16 August 2019 and although it refers to regular counselling appointments over a period of two years at STARTTS in Coffs Harbour and Auburn it is unclear as to the extent to which findings in the 2019 assessment were on foot in June 2018, that is some 14 months prior to Ms Dorning’s assessment (supra).
Moreover, in that assessment Ms Dorning refers to “symptoms” of PTSD and anxiety/depression although there is there no detail provided about the numerous counselling sessions and their outcomes.
Dr Saboor (who as a psychiatrist meets the “qualification requirements”) indicates that he has been attending the Applicant since July 2018 and has seen her on several occasions since that date. He is thus in a position to comment directly on her condition in 2018. However, his report states in relation to the commencement of the Applicant’s claimed incapacity that: “[t]he exact date is unclear. She has suffered with depression for many years.” The Tribunal cannot safely base any finding in relation to the Applicant’s claimed level of incapacity in June 2018 on Dr Saboor’s reports.
The Applicant has placed emphasis upon her degree of illiteracy as constituting some degree of (mental) impairment. The Tribunal is very clear, and the Policy also makes it clear that illiteracy is not in itself a mental incapacity.

In Ahmadzai the Tribunal stated:
The claimed incapacity is primarily linked to the applicant’s illiteracy. The Tribunal does not accept that illiteracy amounts to permanent or enduring physical or mental incapacity contemplated by s. 21(3)(d).[15]
[15] Ahmadzai and Minister for Home Affairs (Citizenship) [2019] AATA 669 at [20].
When the Applicant was first interviewed by the Department regarding her claim in November 2019, she presented as part of her identification requirements, an enrolment card at TAFE NSW. In oral evidence to the Tribunal the Applicant agreed that she had been enrolled at TAFE in Coffs Harbour to study English but that she had discontinued her studies, although Ms Dorning’s report (14 April 2020) indicates that these classes last “for 2-3 days per week for approximately 2 years.” There is also evidence that the Applicant had attended 777.0 hours of basic English classes[16] and that while in Coffs Harbour after ceasing her TAFE course she undertook home tutoring in English which comprised of “a volunteer tutor who would visit her for approximately 2 hours per week.”[17] Although the Applicant claims that none of these activities enabled her to learn English, the Tribunal is not persuaded on this point. It also notes that she lives in a household of five children, two of whom are citizens and three of whom are at school. The capacity to learn English from these children, taken together with other efforts, at least to a level sufficient to undertake the citizenship test, where she would be assisted with some of her language difficulties, cannot be discounted.
[16] T-documents (2020/1172) at 21.
[17] Report of Ms Dorning dated 14 April 2020 at 6.
The Applicant told the Tribunal that she has attempted the Citizenship Test once but failed, however there are no details as to when this was nor what her score on that test might have been.
The Tribunal also notes that at some stage the Applicant held a NSW Driver’s licence. To obtain such a licence requires a degree of functional capacity or literacy in English. In Shah the Tribunal considered precisely this question and concluded:
There is evidence that at the time he lodged his application for citizenship on 12 September 2016, Mr Shah held a Western Australia Driver’s Licence… Although the Tribunal does not see this evidence as determinative, the Tribunal considers that it is not consistent with the type of incapacity and lack of capability contemplated by s 21(3)(d).[18]
[18] Shah and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] AATA 3979 at [43].
In contrast to the presentation outlined in Ms Dorning’s report of August 2019, the Tribunal found that, in her evidence before it, the Applicant was fully engaged in the process, answered questions directly (although with some inability to remember dates) and was not hesitant in engaging with the Tribunal both to ask questions, to engage in conversation and to speak as an advocate on her own behalf.
The paucity of evidence before the Tribunal as to the Applicant’s psychiatric or mental health conditions at the relevant time (the date of the application) is a key factor in assessment. This is necessary because CPI 2 states that: “[t]he incapacity must be the direct cause”[19] of the applicant’s inability to meet the requirements.
[19] CPI 2 at [3.4]. Emphasis in original.
As this Tribunal said in Butrus:
In order to meet the requirements of s 21(3)(d) what needs to be established is the clear causal connection between a significant physical or mental incapacity and the inability to understand either the nature of the citizenship application or the privileges and obligations of citizenship and the ability to demonstrate a basis knowledge of the English language.[20]
[20] Butrus and Minister for Immigration and Border Protection (Citizenship) [2019] AATA 239 at [61].
No direct cause is evident before the Tribunal.
In her oral evidence to the Tribunal the Applicant demonstrated, when asked, a reasonable level of comprehension about the benefits of Australian citizenship and was articulate enough about why she wanted to acquire such status. She also presented as person well enough able to manage a household of five children (two adult), albeit with considerable assistance from them. She indicated that she has been able to travel back to Pakistan on at least one occasion.
Conclusion
For any applicant to be able to claim exemption from the ordinary requirements for citizenship by conferral by virtue of their suffering an enduring physical or mental incapacity they must be able to show that such an incapacity exists, is permanent and is the direct cause of their inability to learn English or acquire an adequate knowledge of Australia and of the responsibilities and privileges of Australian citizenship.
There is no doubt that the Applicant suffers a range of physical ailments and that she has a limited degree of literacy. These conditions however are insufficient to meet the level of incapacity set out in the Act and the Policy.
The evidence about the Applicant’s mental health is neither of a sufficient degree of authority nor related directly to her condition at the time of her citizenship application to establish the necessary causal link.
Any such decision to refuse citizenship by conferral does not affect any rights which the Applicant has consequent upon her holding her current visa. It does not inhibit her travel overseas (which she has done at least once). There is no limitation on the ability of an applicant to submit further applications for citizenship by conferral[21] and, this would allow an assessment of more contemporaneous evidence about the Applicant’s mental or psychiatric health to be considered. In the meantime, the Applicant may well choose to re-sit the Citizenship Test after receiving further help from her children, including those who are already citizens.
[21] Fenn v Minister for Immigration and Migrant Affairs [2000] AATA 931 at [8].
DECISION: ZIA JAN SARFARAZ
The decision under review is affirmed.
THE APPLICATIONS OF MUQADAS SARFARAZ; BIBI ALLAH SARFARAZ AND MUHAMMED OMAR SARFARAZ
As noted, Mrs Sarfaraz’s application included applications on behalf of
·Muqadas Sarfaraz (born April 2004)
·Bibi Allah Sarfaraz (born April 2005)
·Muhammed Omar Sarfaraz (born January 2009).
Each of the applicants is a minor born in Pakistan. Although there is no direct evidence before the Tribunal, it assumes, from the evidence of Mrs Sarfaraz that their father was a citizen of Afghanistan, as was their mother. Article 9(2) of the Law on Citizenship of the Islamic Emirate of Afghanistan states:
A person born from parents holding citizenship of the IEA abroad or within the territory of the IE is considered to be a citizen of the IEA.”[22]
[22] Law on Citizenship of the Islamic Emirate of Afghanistan [Afghanistan] article 9, 24 June 2000, available at: [accessed 20 July 2021].
In any event, Bibi Allah and Muqadas are holders of Afghan Citizen Proof of Registration cards and all three hold an Australian Titre de Voyage listing their nationality as Afghan.[23] The important point here is that the children are thus in no way stateless persons.
Section 21 (5) of the Act 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.
[23] Copies appear in the relevant T-documents for each of the children.
Each of the minor children satisfy the requirements of this section. However, it does not follow that any such application would be approved as subsection 24(2) of the Act provides:
The Minister may refuse to approve a 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). [emphasis added]
It is thus necessary to revert to the guidelines provided in the CPIs, in this instance CPI 4 - Australian Citizenship by Conferral – Person under 18. It variously provides:
6.2 Separate decisions to be made
Where applications for Australian citizenship have been made at the same time and on the same form, separate decisions must be made for each person included in the application. For example, a decision is made for the responsible parent under the appropriate subsection – general eligibility subsection 21(2) of the Act – and separate decisions made for each included child under subsection 21(5) of the Act.
6.3 Parent’s application is refused
If the responsible parent’s application is refused the child’s application should be considered as an individual application against the policy guidelines in section 7.1 of this instruction below.
7.1. Policy considerations for children aged 15 years and under
In order to uphold and maintain the integrity of the citizenship program decision-makers must have due regard to all the circumstances of the family unit when considering individual applications made by or on behalf of a child aged 15 years and under, or where a child’s application is being considered as an individual application because their responsible parent’s application has been refused or their parent has died.
The following factors are relevant in making a decision under subsection 24(2) of the Act. Decision-makers are to consider whether the child is:
usually resident in Australia and living with a responsible parent who is an Australian citizen and who consents to the application; or
·usually resident in Australia and living with a responsible parent who is a permanent resident and who consents to the application, and that responsible parent would meet the residence requirement but has decided not to apply for Australian citizenship because they would lose the citizenship of another country; or
·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… or
·usually resident overseas and living with a responsible parent who is an Australian citizen and who consents to the application. In this situation, it may be relevant for decision-makers to consider whether the grant of the Australian citizenship could disadvantage the child or put them in significant hardship (for example, whether by acquiring the Australian citizenship, the child would lose another citizenship which can affect their rights and access to entitlements, such as claiming an inheritance)… or
·an unaccompanied humanitarian minor who falls under the Minister’s guardianship and a responsible parent or care has consented to the application.
Applications must also be carefully considered to ensure that the child and their family unit or 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.
In relation to each of the minor children, the Minister’s delegate determined as follows:[24]
“Despite your child satisfying the requirements under subsection 21(5) of the Act, I have decided to use my discretion under subsection 24(2) to refuse to approve your child to become an Australia citizen by conferral because your child is not living with a responsible parent who is an Australian citizen at the time of my decision. In addition, you have not provided evidence with your application that your child would suffer significant hardship or disadvantage if they are not conferred Australian citizenship.
…
I am of the view that your child is not covered by any of the policy guidelines set out above and that it may be appropriate for me to use the discretion provided in subsection 24(2) of the Act to refuse to approve your child’s applications for citizenship.
However, Article 3.1 of the Convention on the Rights of the Child (CROC) (of which Australia is a signatory) states: “In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interest of the child shall be a primary consideration.” The obligation to consider the best interests of the child applies to those children who are under 18 years old and are within Australia’s territory or jurisdiction at the time of decision. As your child is under 18 at this time I am required to treat your child’s best interests as a primary consideration in making this decision.
I have considered the following:
Your child is currently a permanent resident of Australia. They therefore have permission to stay in Australia indefinitely and have appropriate access to education, health and social welfare services, and when in Australia, are covered by the same laws as Australian citizens. It is these laws that provide your child with protection from physical or mental violence, injury or abuse, neglect or negligent treatment, maltreatment or exploitation, including sexual abuse. It is also these laws that provide your child with the right of freedom of religion, the right to an identity and protection from the illicit transfer and non-return from abroad. A decision to refuse to approve your child becoming an Australian citizen by conferral would not change their immigration status in Australia and therefore would not deny them the protection and rights provided by Australian law whilst present in Australia. I am also satisfied a decision to refuse your child Australian citizenship will not separate you from your child. Therefore, I am satisfied that such a decision would not be against your child’s best interests.”
[24] Bibi Allah Sarfaraz: T-documents (2020/1174) at 16 and 18-19; Muhammed Omar Sarfaraz: T-documents (2020/1173) at 16 and 18-19; Muqadas Sarfaraz: T-documents (2020/1175) at 16 and 18-19.
It is thus evident that the Minister’s Delegate has determined that because none of the minor children is usually “resident in Australia and living with a responsible parent who is an Australian citizen” and because the Delegate was satisfied that the refusal of any claim would not result in harm or detriment to the child in question, the Delegate’s discretion would be exercised to refuse the application under subsection 24(2) of the Act.
The Tribunal has some concern about this decision within the context of “all the circumstances of the family unit” which is a matter the decision-maker must address. There is no evidence in the Delegate’s statement of reasons that consideration was given to the fact that each of the three minor children had two siblings who may have been Australian citizens at the time of the Delegate making their decision in February 2020.
Although the Respondent’s representative took the Tribunal to the basis of the Delegate’s decision in this instance (the non-Australian responsible parent), it is most unfortunate that the Respondent did not submit a proper Statement of Facts, Issues and Contentions to the Tribunal regarding the decision to refuse citizenship to each of the minor children. The Tribunal has no direct evidence of the date on which each of the elder sons became citizens, and whether they held citizenship at either the date of the lodgement of the application on behalf of their siblings or at the date of the Delegate’s decision.
This matter was considered as some length in Wijewardhanage where the Tribunal said:[25]
It is common ground that Ms Wijewardhanage’s applications on behalf of Krishni and Tristan meet the eligibility requirements in subsection 21(5) of the Citizenship Act, and that the discretion to grant citizenship to them is therefore enlivened. The question before me is whether that discretion should be exercised. The exercise of the discretion in the present context is conditioned by the guidance on the grant of citizenship to children in Chapter 7 of the Policy.[26]
The scheme set out on pages 75-6 of the Policy distinguishes between children under 16 who apply in their own right and those whose application is part of that of their parents. The latter must meet a less demanding set of requirements: they must be permanent residents, and living with a responsible parent who has consented to their inclusion on the application. If the applying parent’s application is refused, however, the child must meet the more demanding requirements for children who have applied in their own right: the child’s responsible parent must already be a citizen, or not applying for citizenship, or if not approved the child would suffer “significant hardship or disadvantage” (and there are other possibilities not presently relevant).
Thus the administrative scheme developed to condition the exercise of the discretion arising from subsection 22(4A) of the Citizenship Act is that where a parent is granted citizenship, children of the person would normally be granted it at the same time; but if it is denied the parent, it is only granted to the children under exceptional circumstances. The purpose, presumably, is to maintain an integrated citizenship status for the family and avoid creating circumstances that might encourage families to split up. Provided it is applied with some flexibility, I cannot see that the Policy is inconsistent with the Act, which in this area confers a very broad discretion on the Minister either to approve or refuse the grant of citizenship.
[25] Wijewardhanage and Minister for Immigration and Border Protection [2018] AATA 746 at [35]-[37].
[26] Replaced in essentially the same terms by the CPIs.
The “integrated citizenship status for the family” is already compromised, taking the “family” in its broadest construct and it is a moot point as to whether the family unit would be strengthened rather than weakened by the grant of citizenship to the three minor children who are otherwise eligible for citizenship (section 21(5)) and against whom the prohibitions contained in sections 24(3), (4), (4A), (6) or (7) do not apply.
Conclusion regarding each of the minor children
Had there been more detailed evidence on this point the Tribunal might well have been inclined to a more favourable consideration of the applications of the minor children, but absent that, the balance of all considerations must be to find that there are no “exceptional circumstances” to separate the fate of the minor children from that of their parent in this application. Each of the applications on behalf of the children is compromised by the fact that they do not have an Australian-citizen resident parent with whom they are usually resident.
The matter is thus rendered open to the exercise of the decision-makers’ discretion in that such an application “may” be refused. In making its choice between there being the potential[27] of all five children being citizens and not their mother or rather of the mother and the younger children together, not holding citizenship, the Tribunal is persuaded that the dynamics of the family support the latter outcome as being preferrable. As the Delegate rightly assessed, no immediate disadvantage accrues to any of the minor children as a result of this given their current immigration status in Australia.
[27] A decision of this Tribunal would not be whether to grant citizenship but whether to remit the matter to the Minister for a decision to be made in line with its findings which would in turn require consideration of other qualifications set out in the Act which are not otherwise before this Tribunal.
The Tribunal may well have come to a different conclusion in relation to Muqadas Sarfaraz had he been over the age of 16 years at the date of the application being lodged, as there are somewhat different policy considerations applicable to applicants aged 16 or 17 years.[28]
[28] Refer to CPI 4 at [9].

The Tribunal suggests that this young man might consider pursuing a personal application for citizenship now that he has reached that threshold although it cannot in any way determine what the outcome of such an application might be.
DECISION: MUQADAS SARFARAZ
The decision under review is affirmed.
DECISION: BIBI ALLAH SARFARAZ
The decision under review is affirmed.
DECISION: MUHAMMED OMAR SARFARAZ
The decision under review is affirmed.

I certify that the preceding 57 (fifty -seven) paragraphs are a true copy of the reasons for the decision herein of Chris Puplick AM, Senior Member

....................................[sgd]..................................
Associate
Dated: 22 July 2021

Date(s) of hearing: 1 July 2021

Applicant: In person

Solicitors for the Respondent: Ms S Hardie, HWL Ebsworth Lawyers

Date(s) of hearing:	1 July 2021
Applicant:	In person
Solicitors for the Respondent:	Ms S Hardie, HWL Ebsworth Lawyers