Shams and Minister for Immigration and Citizenship

[2011] AATA 675

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2011] AATA 675

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No   2011/0863

GENERAL ADMINISTRATIVE DIVISION		)
Re		Fariha Shams

Applicant

And Minister for Immigration and Citizenship

Respondent

DECISION

Tribunal   Senior Member A K Britton

Date  29 September 2011

Place  Sydney

Decision   The decision under review is affirmed.

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

Senior Member A K Britton

CATCHWORDS

MIGRATION – application for citizenship by conferral – refusal despite eligibility – discretion to refuse citizenship – Australian Citizenship Instructions – residency requirement – lack of significant hardship and disadvantage – decision under review affirmed

LEGISLATION

Australian Citizenship Act 2007 (Cth) – ss 21, 21(1), 21(2)(c), 21(3)(c), 21(4)(d), 21(5), 22, 24(2)

CASES

Singh v Minister for Immigration and Citizenship [2011] FCA 685

Re Drake v Minister for Immigration and Ethnic Affairs (No. 2) (1979) 2 ALD 634

OTHER INSTRUMENTS

Australian Citizenship Instructions  

REASONS FOR DECISION

29 September 2011               Senior Member A K Britton

1.      The applicant, Ms Fariha Shams, is an 18 year old Bangladeshi woman who seeks review of the decision made by a delegate of the Minister for Immigration and Citizenship to refuse her application for Australian citizenship.  Ms Shams became a permanent resident of Australia in April 2007 and applied for Australian citizenship in December 2010. 

2.      I must decide whether the decision to refuse Ms Shams’s application for citizenship is the correct and preferable decision.

Statutory framework

3.      Ms Shams’s application was made under s 21(5) of the Australian Citizenship Act 2007 (Cth) (the Act).  Section 21(1) of the Act provides that non-citizens may apply to the Minister for Australian citizenship.

4.      Section 21 establishes seven categories of persons eligible to apply for citizenship and sets out eligibility tests.  The tests vary according to the category of person.

5.      At the time she became eligible to apply for citizenship, Ms Shams was a minor, aged 17 years.  The relevant sub-section of s 21 was sub-s (5) 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.  

6.      Unlike several of the other sub-sections of s 21, sub-s 21(5) does not incorporate a “general residence requirement”: see ss 21(2)(c), (3)(c) and (4)(d).  Of the seven distinct categories of persons eligible to apply for citizenship, only three impose a general residence requirement.

7.      The general residence requirement is defined and provided for by s 22 of the Act.  Section 22(1) provides that the requirement is satisfied if three conditions are met:  the person applying for citizenship was present in Australia for the four years before the application was made; the person was not present in Australia as an unlawful non-citizen; and the person was a permanent resident for a period of 12 months immediately prior to the application.

8.      The fact that s 21 imposes a general residence requirement in less than half the categories of persons eligible to apply for citizenship demonstrates that the legislature did not intend this test to be of general application.  It is clear, therefore that this test does not apply to Ms Shams under the provisions of the Act.

9.      Notwithstanding the fact that a person may be eligible to apply for citizenship, the Minister, or Tribunal acting as substitute decision-maker, retains a discretion not to approve such an application: s 24(2).

Should Ms Shams’s application for citizenship be granted?

10.     The Minister’s delegate accepted that Ms Shams was eligible to apply for citizenship pursuant to s 21(5) and then applied the Respondent’s policy guidelines, the Australian Citizenship Instructions (the ACI).

11.     The ACI for minors aged 16 or over include a general residence requirement which, in essence, was the same as that imposed by s 22 on other categories of applicants for citizenship.  It is common ground that Ms Shams did not satisfy this criterion.

12.     The delegate also took the view that there was no significant hardship or disadvantage in Ms Shams’ case justifying a relaxation of the general residence requirement.  She was also not satisfied that Ms Shams understood the nature of the application, that she possessed a basic knowledge of the English language, or that she had an adequate knowledge of the responsibilities and privileges of Australian citizenship.  The delegate also found that Ms Shams did not meet the criteria for eligibility under other sub-sections of s 21.

13.     Counsel for Ms Sham’s argues that the Minister’s discretion miscarried due to the application under the ACI of the general residence requirement.  Counsel contends that because s 21(5) does not impose a residency requirement, the delegate was not entitled to impose one under the ACI and nor is the Tribunal on review.

14.     I do not agree with that submission. As Marshall J pointed out in Singh v Minister for Immigration and Citizenship [2011] FCA 685 at [12], the decision-maker’s discretion is unfettered by the Act although it must be exercised “by reference to matters to be implied from the subject matter, scope and purpose of the statutory provisions, with a view to reaching the correct or preferable decision in all the circumstances”.

15.     His Honour noted (at [12]) that “policy considerations governing the exercise of the discretion contained in s 21(5) were at the forefront of Parliament’s intention in enacting s 21(5)” and that “policy considerations referred to in the 2005 explanatory memorandum were not intended to govern the exercise of the discretion but to set out circumstances when applications would ‘usually be approved’, thereby leaving the appropriate decision to the decision maker”.  He also noted that “the Instructions constitute a statement of departmental policy to which an administrative decision maker is entitled to have regard”.  He found that the guidelines were not ultra vires.

16.     The Explanatory Memorandum for the 2005 Bill states in relation to clause 21(5):

As a matter of policy, applications considered under this subsection would usually be approved if the applicant meets the criteria in new subsection 2. That is, the applicant is a permanent resident, satisfies the residence requirements, has a basic knowledge of English, the privileges and responsibilities of citizenship, the nature of the application and 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 is of good character. In addition, under policy, applications under this subsection would not usually be approved unless the applicant has a responsible parent (as defined by new Section 25 of this Act) who is an Australian citizen.

17.     Section 21(5) lays down a threshold, not a complete policy. Were that the case, the discretion granted by Parliament to the decision-maker in s 24(2) would be mere surplusage. While s 21(5) does not provide for a residency requirement, the fact that s 24(2) provides the decision-maker with a wide discretion allows for the application of policy criteria other than those established by statute. It was reasonable and appropriate for the delegate to apply the ACI guidelines in the circumstances because those guidelines directly inform the Minister (or delegate) of matters relevant and appropriate to the exercise of the discretion to confer the considerable advantage of Australian citizenship upon a non-citizen.

18.     It is well established that in the interests of consistency, the Tribunal should only depart from the application of policy with care (Re Drake v Minister for Immigration and Ethnic Affairs (No. 2) (1979) 2 ALD 634 at 635). In my view, the circumstances of this case do not warrant a departure from the policy enshrined in the ACI in relation to the residence requirement.

Significant hardship and disadvantage

19.     Under the ACI, an applicant who is over 16 years but under 18 years of age need not meet the residence requirement if this would cause “significant hardship and disadvantage”. The ACI refers the decision-maker to Attachment B for guidance on the meaning of the term “significant hardship and disadvantage”.

20.     Ms Shams’ departure from Australia was prompted by the family’s need to provide care for her elderly grandmother who suffers from a chronic heart condition. On her account, after migrating to Australia in 2007 her parents concluded that they were unable to meet the costs of caring for Ms Shams’s grandmother in Australia and decided that that Ms Shams should return to Bangladesh to undertake that task. 

21.     Ms Shams contends, for the following reasons, that she would suffer hardship if her application for citizenship were to be refused. First, there would be uncertainty surrounding her plans to re-join her parents in Australia at the commencement of next year and commence tertiary studies.  Her permanent residence visa expires in February 2012. While, as the Minister points out, there is nothing to suggest that a future application for a resident’s return visa (or other appropriate visa) would not be granted, it is conceded that is not guaranteed. Second, unless granted citizenship, she would be required to pay fees to undertake tertiary studies. She claims that her family is not in a position to meet that cost.

22.     I am not persuaded that “significant hardship and disadvantage” would result if she is not granted citizenship. The ACI sets out a non–exhaustive list of circumstances a person seeking to establish significant hardship and disadvantage would normally need to establish. None apply to Ms Shams. While the circumstances she advanced constitute a degree of hardship, in my opinion they fall short of “significant hardship and disadvantage”. I have considerable sympathy for the position in which Ms Shams finds herself. But for the fact that she was needed in Bangladesh to care for her grandmother, there appears to be little doubt that she would have remained in Australia and would have satisfied the residency requirement.  Nonetheless as “significant hardship and disadvantage” is not established, the preferable decision is that Ms Shams’s application for citizenship should be refused. It follows that the decision under review must be affirmed.

I certify that the 22 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member A K Britton.

Signed:         .................................................[sgd]............................
  Associate to Senior Member A K Britton

Date of Hearing:  6 September 2011
Date of Decision:  29 September 2011
Counsel for the Applicant:              Mr H Jewell
Representative for the Applicant:   Mr F Rahman
Solicitor for the Respondent:          Ms M Stone, DLA Piper