Teresa Linge and Minister for Immigration and Border Protection
[2015] AATA 26
•21 January 2015
[2015] AATA 26
Division General Administrative Division File Number
2014/4057
Re
Teresa Linge
APPLICANT
And
Minister for Immigration and Border Protection
RESPONDENT
DECISION
Tribunal Deputy President S D Hotop
Date 21 January 2015 Place Perth The decision under review is affirmed.
.............................[sgd]....................................
S D Hotop
Deputy President
CATCHWORDS
IMMIGRATION AND CITIZENSHIP – citizenship – application for Australian citizenship by conferral – applicant aged 17 years at time of application – applicant eligible to become Australian citizen – applicant did not satisfy residence requirement – departmental policy guidelines – applicant would not suffer significant hardship or disadvantage by having to satisfy residence requirement – applicant does not meet policy guidelines for grant of Australian citizenship – circumstances of applicant's case not sufficiently unusual as to warrant approval of application for Australian citizenship notwithstanding failure to meet policy guidelines – preferable decision to refuse to approve application for Australian citizenship – decision under review affirmed
LEGISLATION
Australian Citizenship Act 2007 (Cth), s 21(1), s 21(2), s 21(5), s22 and s 24(2)
CASES
Re Cudrea and Minister for Immigration and Citizenship [2010] AATA 1036
Hneidi v Minister for Immigration and Citizenship (2010) 182 FCR 115
Re Hong and Minister for Immigration and Citizenship [2011] AATA 242
Re Lee and Minister for Immigration and Citizenship [2010] AATA 1019
Singh v Minister for Immigration and Citizenship [2011] FCA 685
SECONDARY MATERIALS
Australian Citizenship Instructions (issued on 23 November 2013), Ch 5
REASONS FOR DECISION
Deputy President S D Hotop
21 January 2015
Introduction
Teresa Linge (“the applicant”) has applied to the Tribunal for review of a decision of a delegate of the Minister for Immigration and Border Protection (“the respondent”), made on 8 July 2014, refusing her application for Australian citizenship.
The Evidence
The evidence before the Tribunal comprised the “T Documents” (T1–T30, pp 1–207) lodged on behalf of the respondent in accordance with s 37 of the Administrative Appeals Tribunal Act 1975 (Cth), and the oral evidence of the applicant.
The Factual Background
The following background facts, which are not in dispute, are found by the Tribunal on the basis of the T Documents.
The applicant was born in September 1996 in Berlin, Germany and is a citizen of Germany.
The applicant first arrived in Australia with her parents and older sister on 25 August 1997 on a temporary Business (subclass 457) visa. She became a permanent resident of Australia on 8 November 1999 when a permanent General Skilled (subclass 805) visa was granted to her and each member of her immediate family.
The applicant has subsequently been granted a permanent Resident Return (subclass 155) visa on three occasions. Her current visa, which was granted on 30 January 2014, permits indefinite stay in Australia, and multiple entries into Australia until 30 January 2015.
On 15 April 2014 the applicant (then aged 17 years) lodged with the Department of Immigration and Border Protection (“the Department”) a completed “Application for Australian citizenship” form dated 2 April 2014 and signed by her and by her father, Dr Michael Linge, as “the responsible parent of the applicant” (T7). In an accompanying letter dated 2 April 2014, signed by the applicant and Dr Linge, the following information regarding the dates of the applicant’s “physical residence in Australia” was provided:
“25 August 1997 – 28 August 2006: Living, kindergarten and schooling in Australia (except March – July 2006 long service leave and visit of [sic] grandmothers in Germany)
02 March – 29 March 2008: Stay in our house in South Fremantle, WA
22 March – 29 April 2010: Stay in our house in South Fremantle, WA
25 March – 14 April 2012: Stay in our house in South Fremantle, WA
17 January – 08 July 2013: Attended school at St Hilda’s School, Mosman Park, WA
19 July – 21 July 2013: Stay with friends in Sydney, NSW
03 April – 22 April 2014: Stay in our house in South Fremantle, WA
From 20 December 2014: Next stay in our house in South Fremantle, WA”. (T8)
According to the records of the Department:
·in the period of four years immediately before the applicant made her application for Australian citizenship on 15 April 2014, she was present in Australia for 224 days and absent from Australia for 1237 days; and
·in the period of 12 months immediately before 15 April 2014, she was present in Australia for 100 days and absent from Australia for 265 days. (T30)
By letter, dated 1 July 2014, the applicant made a statement to the Department as follows:
“ Statement that I would suffer significant hardship or disadvantage if I were required to meet the residence requirements / if I were unable to attain Australian citizenship
…
When my parents left Australia with us for compelling and compassionate reasons in 2006 I was almost ten years old. Knowing I was born in Berlin which I left at the young age of nine months I was raised in the midst of Australians, speaking Australian, all my memories and all my experiences were Australian. I could not imagine how a life away from my home in South Fremantle would be.
The idea of living in Germany felt like an adventure but when my best friend and her mum took us to the airport we cried desperately and all of the [sic] sudden my friend Lily screamed ‘Don’t go!’ and we cried even more.
Just recently a lady in Germany asked me how I like my life here in Bremen and without thinking I said: ‘It has been an interesting experience but I belong to Australia. My best friends are there and I will go back!’
I wish to become an Australian citizen because I understand myself as one and I feel Australian.
A soon as I have finished high school here I want to take my life into my own hands and study law in Australia and would love to become a judge or a lawyer. My academic life will be in Australia and not being an Australian might limit my opportunities with respect to access of [sic] scholarships or research.
In the future I may obtain an important job for the Australian Government or comparable where being an Australian citizen is a requirement.
I have never detached myself from Australia. My family and I travel back as often as possible. My ties with Australia are strong and I feel Australian. I have my godparents and closest friends in Australia. At the beginning of next year I will do research for a project on community work in Perth and write an extensive essay about it which will be the first part of my final exams.
At the time of our departure from Australia – being a young person – I did not oppose but follow [sic] my parents not knowing the consequences involved in such a decision. Now I experience the disadvantage arising from that move. I would love to go home as an Australian to continue my life there with the same rights and duties like my Australian friends.
Because of the specific circumstances as described above and the following details I would suffer significant hardship or disadvantage if I were required to meet the residence requirements / if I were unable to attain Australian citizenship.
At the time of my arrival in Australia on 25 August 1997 we were temporary residents (visa class 457). In 1998 my younger sister Matilda was born in South Fremantle, WA and from that point in time we were living in Australia with the intention of residing permanently. Subsequently we all were granted permanent residence on 8 November 1999.
In the following years we could not apply for the Australian citizenship without losing the German citizenship because Germany does not allow dual citizenship for adults.
I alone could not apply for Australian citizenship even though I was eligible and I wished to do this because Australian citizenship applications have to be made by an adult with children included in that application.
In this context I stayed in Australia as temporary and permanent resident. I have spent over half of my childhood in Australia.
My physical residence in Australia:
25 August 1997 – 28 August 2006: Living, kindergarten and schooling in Australia (except March – July 2006 long service leave and visit of [sic] grandmothers in Germany)
02 March – 29 March 2008: Stay in our house in South Fremantle, WA
22 March – 29 April 2010: Stay in our house in South Fremantle, WA
25 March – 14 April 2012: Stay in our house in South Fremantle, WA
17 January – 08 July 2013: Attended school at St Hilda’s School, Mosman Park, WA
19 July – 21 July 2013: Stay with friends in Sydney, NSW
03 April – 22 April 2014: Stay in our house in South Fremantle, WA
From 20 December 2014: Next stay in our house in South Fremantle, WA.
My sisters attended or will attend school in Australia in the last/next years:
January – July 2011 Helena: Attended school at St Hilda’s School, Mosman Park, WA
January – July 2015 Matilda: Will attend school at St Hilda’s School, Mosman Park, WA.
In 2013 I attended St Hilda’s School, Mosman Park, WA for two terms. I am planning to continue my education in Australia once I have passed my German high school exam.
Until today I consider our house at … South Fremantle, WA as home and Australia as my home country. My parents own this house and my sisters and I will one day inherit this house. Without citizenship I cannot be sure to reside there and take ownership for the long term.
I am a native English speaker and wish to return to Australia after my high school exam.
My absence from Australia was caused not of my wish. My parents moved for compelling and compassionate reasons back to Germany. Please see the approved extension by the Department of Immigration and Border Protection of our permanent residencies for these reasons.
My sister Matilda is an Australian citizen …
Supporting evidence:
·For further details and supporting evidence please refer to our family’s applications for extension of our permanent residencies, which have been approved by the Department of Immigration and Border Protection.
·Attached letters from Australian friends.
…” (T26)
On 8 July 2014 a delegate of the respondent, pursuant to s 24(2) of the Australian Citizenship Act 2007 (Cth), refused to approve the applicant’s application to become an Australian citizen because she did not meet the approved policy guidelines for conferral of Australian citizenship for people aged 16 and 17 because:
·“[she did] not meet the residence requirement”; and
·“[she] would not suffer significant hardship or disadvantage if [she] were required to meet the residence requirement”. (T4, pp 18-19)
On 4 August 2014 the applicant lodged with the Tribunal an application for review of the delegate’s decision of 8 July 2014. (T1, T2)
The Relevant Legislation
The Australian Citizenship Act 2007 (Cth) (“the Act”) relevantly provides as follows:
“ 21 Application and eligibility for citizenship
(1) A person may make an application to the Minister to become an Australian citizen.
…
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.
…
Person aged under 18
(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.
…”
“ 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.
Overseas absences
(1A)If:
(a)the person was absent from Australia for a part of the period of 4 years immediately before the day the person made the application; and
(b)the total period of the absence or absences was not more than 12 months;
then, for the purposes of paragraph (1)(a), the person is taken to have been present in Australia during each period of absence.
(1B) If:
(a)the person was absent from Australia for a part of the period of 12 months immediately before the day the person made the application; and
(b)the total period of the absence or absences was not more than 90 days; and
(c)the person was a permanent resident during each period of absence;
then, for the purposes of paragraph (1)(c), the person is taken to have been present in Australia as a permanent resident during each period of absence.
…”
“ 24 Minister’s decision
(1) If a person makes an application under section 21, the Minister must, by writing, approve or refuse to approve the person becoming an Australian citizen.
Note: The Minister may cancel an approval: see section 25
(1A) The Minister must not approve the person becoming an Australian citizen unless the person is eligible to become an Australian citizen under subsection 21(2), (3), (4), (5), (6), (7) or (8).
(2) The Minister may refuse to approve the 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).
…”
Relevant Policy
Relevant policy guidelines are set out in Chapter 5 of the Australian Citizenship Instructions (“ACIs”) published by the Department as follows:
“ CHAPTER 5 - CITIZENSHIP BY CONFERRAL
5 Overview to Chapter 5
5.1 Introduction
…
5.2 Eligibility for citizenship by conferral
…
5.2.2 Application and eligibility (s21)
A person may make an application to become an Australian citizen.
…
5.12 Person aged under 18 years (s21(5))
5.12.1 When was application received
For applications received before 9 November 2009, refer to the Act and ACIs in effect immediately before 9 November 2009.
For applications received on or after 9 November 2009, a person under the age of 18 years applying for Australian citizenship by conferral under s21(5), must be a permanent resident (that is, they must have activated their permanent visa) at the time of application and at the time of decision to be eligible for Australian citizenship.
…
The discretion in s24(2) to refuse to approve an applicant becoming an Australian citizen despite being eligible under s21(5) would usually be exercised where the applicant does not meet the policy guidelines. In making a decision whether to refuse or approve an application, the primary considerations that need to be taken into account are the legislative requirements, the best interests of the child and the policy guidelines set out below.
5.12.2 Best interests of the child
The best interests of the child are to be considered as one of the primary considerations when assessing the application. This consideration only applies if the child is or would be less than 18 years of age at the time of decision on the application and the child is living in Australia. See Chapter 18 – Best interests of the child.
…
5.12.6 Applicants aged 16 or 17
Applicants aged 16 or 17 at time of application must make an application on a form that contains no other application.
Applicants aged 16 or 17 would not usually be approved under s 24 unless they are permanent residents at the time of application and decision and also meet the following policy guidelines:
§ satisfies the residence requirement (unless they would suffer significant hardship or disadvantage if they had to meet this requirement). See section 5.17 Ministerial discretion – significant hardship or disadvantage (s22(6)) for guidance
§ understands the nature of an application
§ possesses a basic knowledge of the English language
§ has an adequate knowledge of the responsibilities and privileges of Australian citizenship at the time of decision
§ is likely to reside or continue to reside, or maintain a close and continuing association with Australia.
Applicants aged 16 or 17 at time of application should be given the opportunity at interview to demonstrate that they understand the nature of their application, have an adequate knowledge of the responsibilities and privileges of citizenship; and that they possess a basic knowledge of the English language. It is important that an applicant’s ability to understand and respond to questions is not hampered by the use of complex words or sentences.
Applicants aged 16 or 17s [sic] do not need the consent of a responsible parent.
Other requirements which must be satisfied relating to identity, national security, offences and former citizens are set out in section 5.27.1 Minister’s decision (s24).
In the case of an applicant who does not meet the policy guidelines above, decision makers must consider the full circumstances of the case, including the best interest of the child (see section 5.11.2 [sic] Best interests of the child) to determine whether the application nevertheless warrants approval because of the unusual nature of those circumstances.
Guidance on whether it may be reasonable to consider a particular set of circumstances as unusual can be obtained from the Citizenship Helpdesk.
…
5.17 Ministerial discretion – significant hardship or disadvantage (s22(6))
…
5.17.2 What is significant hardship or disadvantage
The Macquarie Dictionary Fifth Edition makes the following definitions:
significant important; of consequence
hardshipa condition that bears hard upon one; severe toil, trial oppression, or need
disadvantage absence or deprivation of advantage; any unfavourable circumstance or condition
People would normally be required to demonstrate some or all of the following circumstances:
§ inability to gain employment on the grounds that the employment is restricted to Australian citizens, and that comparable or alternative employment is not reasonably available
§ difficulty of international travel because the person cannot obtain a passport from their country of nationality/citizenship, or are unable to use a passport issued by that country for safety or similar reasons or cannot obtain an alternative travel document
§ academic (for example, research, academic scholarship) or other (sporting etc) potential is being limited or restricted, because the opportunities to reach that potential is [sic] available only to an Australian citizen, to the extent that it causes significant hardship.
Applicants would need to demonstrate that not having citizenship is the only or major cause for the significant hardship or disadvantage. Decision makers will need to assess each application on its merits with particular reference to all the circumstances of the case to assess whether the person’s lack of Australian citizenship is the only or major cause of the significant hardship or disadvantage.
Evidence is required that a person’s lack of Australian citizenship is the cause of the:
§ significant hardship
or
§ disadvantage.
For example, a letter from a potential employer, scholarship, sporting body stating that the person’s citizenship status is the only reason they have not been selected, plus a statement in writing from the applicant, with appropriate supporting documentation, evidencing the significant hardship or disadvantage this has caused.
The onus is on the applicant to provide the evidence to support the application. Decision makers should also be aware of situations where it appears that a person takes a course of action for the sole purpose of availing themselves of the exercise of this discretion.
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 [sic] may be limited to Australian citizens or permanent humanitarian visa holders.
…” (original emphasis) (T6)
The ACIs are “a statement of departmental policy, having been approved by a senior departmental officer, not the Minister or Parliamentary Secretary”: Hneidi v Minister for Immigration and Citizenship (2010) 182 FCR 115 at 117.
Although the ACIs are not binding on the Tribunal, the Tribunal is entitled to have regard to them as providing guidance for the purpose of the exercise of the discretion conferred by s 24(2) of the Act, and to give appropriate weight to them, in arriving at its own determination of the preferable decision in this matter: Hneidi at 120-121, 122–123; Singh v Minister for Immigration and Citizenship [2011] FCA 685 at [12].
The Tribunal accepts that the abovementioned relevant provisions of the ACIs are not inconsistent with the Act and are not otherwise unlawful or ultra vires: Singh at [12].
In the Tribunal’s opinion there is no good reason why it should not have regard to the abovementioned relevant provisions of the ACIs and, in accordance with its usual practice, it will do so in determining the preferable decision in this matter. The Tribunal notes that the applicant did not submit to the contrary.
The Applicant’s Evidence
The applicant confirmed that the contents of the letter dated 1 July 2014 (set out in paragraph 9 above), which she had written to the Department, are true and correct and that she adhered to the contents of that letter. She also gave evidence to the following effect:
·she is presently attending high school in Germany and is due to complete her secondary education in Germany in June 2016;
·when she completes her high school examinations in Germany in June 2016 she intends to apply for admission to universities in Perth and, if successful, to return to Perth to commence her tertiary education at the beginning of 2017;
·she will probably also apply for admission to universities in Germany for the academic year commencing in September 2016;
·she will be returning to Germany in two weeks;
·she cannot say that she is presently suffering hardship by reason of not being an Australian citizen but she may suffer hardship in the future if she is not an Australian citizen because certain career choices, such as becoming a lawyer or a judge, and certain research opportunities, may thereby be denied to her.
Consideration
It is common ground, and the Tribunal is satisfied, that the applicant was:
·aged under 18 years at the time she made her application for Australian citizenship; and
·was a permanent resident at the time she made that application and at the time of the respondent’s decision on that application;
within the meaning of s 21(5) of the Act.
Accordingly, the applicant was, at the time she made her application for Australian citizenship, eligible to become an Australian citizen under s 21(5) of the Act.
In terms of section 5.12.6 of the ACIs, it is also common ground that the applicant, at the time she made her application for Australian citizenship, did not satisfy the “residence requirement” set out in s 22 of the Act. That being the case, the question arises, having regard to section 5.12.6 of the ACIs, whether the applicant “would suffer significant hardship or disadvantage if [she] had to meet this requirement”.
The applicant’s contentions regarding “significant hardship or disadvantage”, as set out at length in her Statement of Facts, Issues and Contentions filed on 28 November 2014, may be summarised as follows:
·the applicant would suffer significant hardship or disadvantage if she were not approved for Australian citizenship because:
- she would not be eligible to apply for jobs in respect of which Australian citizenship is a requirement; and
- her “academic life will be in Australia” and not having Australian citizenship “might limit her opportunities with respect to access to scholarships or research”;
·having regard to her young age, the applicant’s future educational and employment aspirations are a “personal need”, and not merely a “personal want”, and she would suffer significant hardship or disadvantage if that need was not fulfilled;
·similarly, the applicant’s understanding and identifying of herself as Australian and her feeling that she belongs to Australia are a “personal need” and she would suffer significant emotional hardship or disadvantage if that need was not fulfilled.
It is clear from the applicant’s statement of 1 July 2014 (set out in paragraph 9 above) that she has not suffered, and is not presently suffering, the kind of material hardship or disadvantage which is referred to in section 5.17.2 of the ACIs, by reason of her being required to satisfy the “general residence requirement” in s 22 of the Act or by reason of her not having Australian citizenship. Rather, her contention is that she may suffer that kind of hardship in the future, by reason of not having Australian citizenship, in the event that she seeks to enter a particular profession or seeks particular employment or applies for particular scholarships or research grants, in respect of which having Australian citizenship is a prerequisite. In the Tribunal’s opinion, the possibility of the applicant’s suffering significant hardship or disadvantage of that kind at some time in the future, by reason of not having Australian citizenship, is not a sufficient reason for presently exempting her from the “general residence requirement” in s 22 of the Act. Nor does the Tribunal accept that the applicant’s future educational and employment aspirations can reasonably be described as a “personal need”, rather than a “personal want”, as referred to in section 5.17.2 of the ACIs.
In the Tribunal’s opinion, the only kind of hardship or disadvantage that the applicant has suffered, and is presently suffering, by reason of her being required to satisfy the “general residence requirement” in s 22 of the Act or by reason of her not having Australian citizenship, is the emotional hardship or disadvantage which she has experienced, and continues to experience, because of her distress or disappointment in not being an Australian citizen despite her personal understanding and identifying of herself as Australian and her subjective feeling that she belongs to Australia. The Tribunal, however, accepts the respondent’s submission that such hardship or disadvantage is not of sufficient importance or moment to constitute “significant hardship or disadvantage”, as referred to in sections 5.12.6 and 5.17.2 of the ACIs. In the Tribunal’s opinion, the fact that the applicant has suffered, and continues to suffer, such emotional hardship by reason of her not being an Australian citizen is not a sufficient reason for exempting her from the “general residence requirement” in s 22 of the Act. Nor does the Tribunal accept that the applicant’s understanding and identifying of herself as Australian and her feeling that she belongs to Australia can reasonably be described as a “personal need” as referred to in section 5.17.2 of the ACIs.
The Tribunal concludes, therefore, that the applicant does not meet the policy guidelines referred to in section 5.12.6 of the ACIs which are relevant to the exercise of the discretion, conferred by s 24(2) of the Act, to refuse to approve her application for Australian citizenship.
That being the case, section 5.12.6 of the ACIs requires that “the full circumstances of the case, including the best interests of the child” be considered “to determine whether the [applicant’s] application [for Australian citizenship] nevertheless warrants approval because of the unusual nature of those circumstances”. Section 5.12.2 of the ACIs states:
“ The best interests of the child are to be considered as one of the primary considerations when assessing the application. This consideration only applies if the child is or would be less than 18 years of age at the time of decision on the application and the child is living in Australia.”
The Tribunal notes that the applicant turned 18 in September 2014 and that she presently lives in Germany and, according to her own evidence, intends to continue to live in Germany until at least June 2016 in order to complete her secondary education. The Tribunal accepts the respondent’s submission that, because the applicant is now 18 years of age and because she is not presently living (that is, residing) in Australia (and was not living in Australia at the time of the respondent’s decision on her application for Australian citizenship), the consideration of “the best interests of the child” is no longer applicable in the applicant’s case.
The final matter for the Tribunal’s consideration, in terms of section 5.12.6 of the ACIs, is whether, notwithstanding that the applicant does not meet the relevant policy guidelines – specifically, because she does not satisfy the “general residence requirement” in s 22 of the Act - her application for Australian citizenship “nevertheless warrants approval because of the unusual nature of [the] circumstances” of her case.
The “full circumstances” of the applicant’s case include the following relevant circumstances:
·she arrived in Australia in August 1997 when she was approximately 11 months old and lived and went to kindergarten and primary school in Australia for the next nine years until August 2006;
·she was unable to apply for Australian citizenship herself in that period and her parents did not apply for Australian citizenship because, if granted Australian citizenship, they would, as a result, have lost their German citizenship;
·in August 2006 her parents returned to Germany for compassionate reasons (which, the Tribunal understands, were in order to care for their elderly parents) and she was required to return to Germany with them;
·although she has continued to live in Germany since August 2006, she has visited Australia in 2008, 2010, 2012, 2013 and 2014–2015 (including boarding at a private school in Perth from January to July 2013) and has continued to maintain a close association with Australia;
·her godparents and her “closest friends” are in Australia;
·her younger sister was born in Australia and is an Australian citizen.
In the Tribunal’s opinion, the circumstances of the applicant’s case are not especially unusual or uncommon and are clearly not of such an unusual or uncommon nature as to warrant approval of the applicant’s application for Australian citizenship notwithstanding that she fails to meet the relevant policy guidelines in that she does not satisfy the “general residence requirement” in s 22 of the Act. The Tribunal notes that there have been several cases decided by the Tribunal in recent years whose circumstances were such that the adverse impact of a refusal to grant Australian citizenship appeared to be significantly greater than in the present case but were, nevertheless, not considered to be of an unusual or uncommon nature such as to warrant approval of an application for Australian citizenship by a person under the age of 18 who, like the applicant in the present case, did not meet the relevant policy guidelines in the ACIs: see, for example, Re Lee and Minister for Immigration and Citizenship [2010] AATA 1019; Re Cudrea and Minister for Immigration and Citizenship [2010] AATA 1036; Re Hong and Minister for Immigration and Citizenship [2011] AATA 242.
The Tribunal notes, furthermore, that the applicant, following her return to Germany to resume her secondary education, will require a further visa to re-enter Australia after 30 January 2015 (see paragraph 6 above). Although, as the applicant has pointed out, there is no guarantee that she will be granted such a visa, she, in the Tribunal’s opinion, would, having regard to the abovementioned circumstances of her case, including her continuing to maintain a close association with Australia, have a reasonable expectation that, on application, she would be granted a further permanent Resident Return (subclass 155) visa permitting her to stay indefinitely in Australia or, alternatively, a student visa for the purpose of tertiary study in Australia.
In that event, and in the event that the applicant returns to Australia and, in due course, satisfies the “general residence requirement” in s 22 of the Act, and satisfies the other “general eligibility” requirements set out in s 21(2) of the Act, she would have a reasonable expectation that a further application by her for Australian citizenship would then be approved.
Conclusion
The Tribunal concludes, having regard to the provisions of the ACIs set out in paragraph 13 above, that, although the applicant was, at all material times, eligible to become an Australian citizen under s 21(5) of the Act, the preferable decision is that the discretion conferred by s 24(2) of the Act to refuse to approve her application for Australian citizenship be exercised on the basis that:
·she did not satisfy the “general residence requirement” in s 22 of the Act at the time of her application for Australian citizenship and she would not suffer significant hardship or disadvantage by having to meet that requirement; and
·the circumstances of her case are not of such an unusual nature as to warrant approval of her application for Australian citizenship notwithstanding that she does not meet the policy guidelines in section 5.12.6 of the ACIs in the abovementioned respect.
Decision
For the above reasons, the decision under review is affirmed.
I certify that the preceding 34 (thirty -four) paragraphs are a true copy of the reasons for the decision herein of Deputy President S D Hotop. ........................[sgd D Brodie].......................................
Administrative Assistant
Dated 21 January 2015
Date of hearing 7 January 2015 Representative of the Applicant Ms C Linge Representative of the Respondent Mr A Gerrard Solicitors for the Respondent Australian Government Solicitor
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