SLHH and Minister for Home Affairs (Citizenship)

[2019] AATA 5033

SLHH and Minister for Home Affairs (Citizenship) [2019] AATA 5033 (29 November 2019)

Division:GENERAL DIVISION

File Number:           2019/3893

Re:SLHH

APPLICANT

AndMinister for Home Affairs

RESPONDENT

DECISION

Tribunal:Member R West

Date:29 November 2019

Place:Melbourne

The Tribunal affirms the decision under review.

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

Member

Catchwords

REVIEW OF REFUSAL OF APPLICATION FOR CITIZENSHIP – applicant under 18 years of age – whether permanent resident as required by s.21(5) of the   Citizenship Act 2007 – whether discretion to consider the best interests of the child in assessing eligibility under s.21(5) – decision affirmed.

Legislation

Citizenship Act 2007

Secondary Materials

United Nations Convention on the Rights of the Child
Australian Citizenship Policy

REASONS FOR DECISION

Member R West

29 November 2019

1. This matter concerns an application for review of a decision of the delegate of the Minister of Home Affairs (Minister) made under s.24(1A) of the Australian Citizenship Act 2007 (Cth) (Act) to refuse the Applicant’s application for Australian citizenship by conferral.

2. The application was made on the Applicant’s behalf by her father.  He represented her in the proceedings before the Tribunal.

3. The Applicant was born in 2007 and is a citizen of Bangladesh. She arrived in Australia in March 2011 as a dependant on her father’s Higher Education (subclass 573) visa. At the time of the hearing, the Applicant held a bridging visa pending the determination of her father’s application for a Migrant - ENS Temporary Residence Transition (Web) (EN 186) visa.

4. On 17 May 2019, the Applicant’s father applied for citizenship on the Applicant’s behalf.  In the application form, he stated that the Applicant was seeking an exemption under s.21(5) of the Act, to avoid significant hardship and the best interest of the child (sic).       In support of the application, the Applicant’s father provided documentary evidence including, two written submissions dated 10 April 2019 and 10 May 2019, which were reports in relation to the Applicant’s autism spectrum disorder and academic progress.  He also provided Bangladesh country information.

5. On 4 June 2019, the application was refused by the delegate of the Minister (delegate) because the Applicant was not a permanent resident and did not meet the requirements of s.21(5) of the Act.

6. On 30 June 2019, the Applicant applied to the Tribunal for a review of the delegate’s decision. The Applicant’s principal argument on review was that the delegate had failed to consider the full circumstances of his daughter’s case, including her best interests as a child and had overlooked Australia’s treaty obligations under the United Nations Convention on the Rights of the Child (Convention).

7. The Respondent submitted in its written Statement of Facts, Issues and Contentions that the Tribunal is required to refuse the Applicant’s application because the Applicant did not meet the eligibility requirement under s.21(5)(b) of the Act. This was because she was not a permanent resident at the time of lodging her citizenship application, at the time of the delegate’s decision and at the time of the Tribunal’s hearing.

8. This issue was raised as a preliminary issue at the commencement of the hearing.

9. The Applicant’s father accepted that the Applicant was not a permanent resident at either the time of lodging her citizenship application and at the time of the hearing. The Applicant instead argued that, in assessing the Applicant’s eligibility under s.21(5) of the Act, the Tribunal has a discretion to consider the best interests of the Applicant as stated in the Convention and as required by the Australian Citizenship Policy (Policy), and it should do so in considering the Applicant’s case. The Applicant’s father foreshadowed calling witnesses to attest to the Applicant’s best interests.

   LEGISLATION

10. Section 21(5) of the Act relevantly states:

    Person aged under 18

    (5) A person is eligible to become an Australia 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.

11. Section 24(1A) of the Act states that the Minister must not approve a person becoming an Australian citizen unless they are eligible, among other things, under s.21(5) of the Act.

12. The language of s.24(1A) indicates a mandatory requirement.  The provision is not qualified by any express provision of the Act which would confer on the Minister a discretion either to disregard the requirements of s.21(5) or to treat a person who was not a permanent resident at the material time to be a permanent resident for the purpose of a citizenship application.

13. Neither s.24(1A) nor s.21(5)(b) of the Act make any reference to the best interests of the child, nor do they provide any scope for a discretion to be exercised by the decision maker to consider the best interests of the child where the applicant is not a permanent resident.  Section 21(5)(b) of the Act read with s.24(1A) requires the decision maker to make a binary decision as to whether or not, at the material times, the Applicant was a permanent resident.

14. The Policy provides guidance on the requirements for applicants applying for citizenship and on Australia’s obligations under the Convention.  It states that a child’s best interests must be considered when exercising a discretionary power under specified provisions of the Act. Neither s.24(1A) nor s.21(5) of the Act are included in the list of specified provisions in Chapter 22 of the Policy[1], and s.24(1A) makes it clear that it does not confer a discretionary power on the Minister.

    [1] T12 at p.130.

    CONCLUSION

15. Having regard to these provisions and the evidence presented in the case, the Tribunal is satisfied that the Applicant does not satisfy the legislative requirement set out in s.21(5)(b) of the Act as she was not a permanent resident at both the time of her application and at the date of this decision.

16. The Tribunal is also satisfied that the Tribunal, standing in the shoes of the Minister for the purpose of this review, has no discretion to consider the best interests of the child in assessing whether the Applicant satisfies the requirements of s.21(5)(b) of the Act.

17. Accordingly, the Tribunal is obliged by s.24(1A) of the Act to refuse the Applicant’s application for citizenship.

    DECISION

18. The Tribunal affirms the decision under review.

I certify that the preceding 18 (eighteen) paragraphs are a true copy of the reasons for the decision herein of  Member R West

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

Associate

Dated: 29 November 2019

Date of hearing:	28 November 2019
Applicant:	In person
Advocate for the Applicant:	Applicant’s Father
Advocate for the Respondent:	Ms Inshani Ward
Solicitors for the Respondent:	Sparke Helmore Lawyers