Vizman and Minister for Immigration and Border Protection (Citizenship)
[2016] AATA 328
•20 May 2016
Vizman and Minister for Immigration and Border Protection (Citizenship) [2016] AATA 328 (20 May 2016)
Division
GENERAL DIVISION
File Number
2015/5721
Re
Atai Vizman
APPLICANT
And
Minister for Immigration and Border Protection
RESPONDENT
DECISION
Tribunal Deputy President Dr Christopher Kendall
Date 20 May 2016 Place Perth The decision under review is set aside and remitted to the Respondent with a direction that citizenship be approved.
.................[sgd]......................................
Deputy President Dr Christopher Kendall
CATCHWORDS
CITIZENSHIP – whether citizenship should be conferred – applicant aged 4 was born in Australia and has permanent residency – Applicant now residing with mother in Israel but spends considerable amount of time with father both in and outside of Australia – Applicant satisfied citizenship requirements but Department denied Applicant citizenship on basis that he was not living with father who was an Australian citizen – whether, as per Australian Citizenship Instructions, it can be found that Applicant “living with a responsible adult who is an Australian citizen” and/or whether citizenship “in best interest of the child” -- decision set aside and remitted with a direction that citizenship be approved.
LEGISLATION
Australian Citizenship Act 2007 (Cth) – sections 21(5), 24(1), 24(1A), 24(2)
CASES
Re Drake and Minister for Immigration and Ethnic Affairs (No 2) [1979] AATA 179.
SECONDARY MATERIALS
Australian Citizenship Instructions – Chapter 5.12.5, 18.3
Convention on the Rights of the Child - Article 3.1
REASONS FOR DECISION
Deputy President Dr Christopher Kendall
20 May 2016
BACKGROUND FACTS
A detailed overview of the facts relevant to this matter was provided by counsel for the Respondent, Minister for Immigration and Border Protection (the “Minister”), in a Statement of Facts, Issues and Contentions dated 29 January 2016 (“Statement of Facts”). That summary was not disputed at the hearing of this matter and is provided where relevant below.
This matter requires the Tribunal to determine whether Atai Vizman (“Atai”), aged 4, should be granted Australian citizenship.
The Applicant in these proceedings, Atai Vizman (“Atai”), is aged 4. His parents are Moshe Vizman, now an Australian citizen residing in Australia, and Yael Vizman, now separated from Mr Vizman and living in Israel.
Atai was born in Australia on 3 August 2011 (T6 at 105). He left Australia for Israel shortly after he was born but returned to Australia on 9 June 2012 as the holder of a VE-175 permanent visa. That visa was granted on 24 May 2012 (T2 at 7; Attachment 1).
Atai’s father, Moshe Vizman, was granted Australian citizenship in July 2014.
On 2 March 2015, Atai’s father applied for a grant of Australian citizenship on behalf of his son (T5 at 95).
On 1 July 2015, the Department of Immigration and Border Protection (the “Department”) wrote to Mr Vizman and requested evidence demonstrating that his son was “residing in Australia with a responsible parent who is an Australian citizen” (T8 at 121).
On 17 July 2015, Atai’s father provided a letter to the Department from Atai’s mother (from whom Mr Vizman had separated) who now lived in Israel. Relevantly, that letter stated (T9 at 123-124):
Atai was born in Australia on the 3rd of August 2011, and spend his first years in Australia. In the last couple of years he is travelling a lot, with me (Atai’s mother) and Moshe Vizman (Atai’s father), and divides his time between Australia and Israel.
When in Australia his father is the responsible parent for him ... Atai have a house, friends and family in Australia, I see him as an Australian resident. [sic]
On 16 October 2015, a delegate of the Minister for Immigration refused to grant Atai citizenship (T2 at 3). The delegate determined that Atai met the requirements of section 21(5) of the Australian Citizenship Act 2007 (the “Act”) but chose to exercise his discretion pursuant to section 24(2) to refuse to grant citizenship to Atai. The delegate held:
Departmental records indicate that since his birth, Atai Vizman has spent a total of 462 days inside Australia and 888 days outside of Australia. In addition, in the past year Atai Vizman has spent 300 days outside of Australia but only 65 days inside of Australia. As the vast majority of Atai Vizman’s time is spent residing in a country other than Australia, I do not consider him to be ‘living with a responsible parent, who is an Australian citizen’.
The delegate also considered whether granting citizenship was in “the best interests of the child”. He found that it was not as refusing to grant Atai citizenship would not deny him the protection and rights provided by Australian law while he is in Australia – primarily because Atai still had Australian permanent residency. Consequently, it was held that Atai’s interests would not be “adversely affected” by refusing to grant him citizenship.
On 30 October 2015, Atai lodged an application for review by this Tribunal (T1 at 1).
ISSUE
The only issue before this Tribunal is whether Atai Vizman’s application for Australian citizenship by conferral should be approved.
THE HEARING
The hearing of this matter occurred in Perth on 18 May 2016. Atai, who was in Israel with his mother, was represented by his father, who appeared in person and without legal representation. The Tribunal found Mr Vizman to be an honest and highly credible witness who was both active in his son’s welfare and deeply concerned about his future. The various witness statements presented on his behalf during the hearing (including from his ex-wife) support that conclusion. Counsel for the Minister also made clear her conclusion that there was no reason to doubt the veracity of Mr Vizman’s statements, particularly in relation to his overseas travel and the amount of time Atai lived with him, both within Australia and when Mr Vizman was in Israel.
The Minister was represented by Ms Ladhams from the offices of the Australian Government Solicitor.
In addition to the Minister’s Statement of Facts referred to above, the Tribunal also received written statements from:
·Yael Vizman (Atai’s mother), undated
·Nfar Meirovich (relating to Atai’s daycare arrangements), undated
·Giora Tzur Tenne (relating to the relationship between Mr Vizman and Atai), dated 2 February 2016
·Briarne Svensson (relating to relationship and contact between Mr Vizman and Atai), dated 28 January 2016
·Invoices from University Child Care Club and Humpty Dumpty Childcare, dated 30 May 2013 and 8 November 2013
·Record of travel movement (internationally) in relation to Mr Vizman between 2001-2016).
LEGISLATION
A thorough overview of the legislation relevant to this matter was provided by counsel for the Minister in the Statement of Facts dated 29 January 2016. That summary was not disputed by Mr Vizman at the hearing of this matter and is repeated below as follows.
The legislation relevant to this application is set out Part 2 of Division 2 of Subdivision B of the Act.
Atia is under the age of 18. As such, the relevant eligibility criteria for citizenship are those contained in subsection 21(5) of the Act.
Relevantly, subsection 21(5) provides that the applicant is eligible to become an Australian citizen if he:
· is aged under 18 years at the time he made the application; and
· is a permanent resident at the time he made the application and at the time of the decision on the application.
Subsection 24(1) of the Act mandates that where a person has made an application for citizenship, the Minister must approve or refuse to approve the person becoming an Australian citizen.
Subsection 24(1A) in turn provides that the Minister must not approve a person becoming an Australian citizen unless the person is eligible to become an Australian citizen under subsection 21(2), (3), (4), (5), (6) or (7) of the Act.
Subsection 24(2) provides that 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). In effect, this gives the Minister a discretionary override.
In deciding whether to approve or to refuse to approve a person becoming an Australian citizen under section 24(2) of the Act, decision-makers will ordinarily have regard to the policy contained in the Australian Citizenship Instructions (ACIs). The Tribunal is entitled to have regard to any policy and will usually follow it unless there are cogent reasons not to do so (Re Drake and Minister for Immigration and Ethnic Affairs (No 2) [1979] AATA 179; (1979) 2 ALD 634).
In relation to applicants (like Atai) who are under the age of 16 years, the ACIs relevantly provide (at part 5.12.5) (T4 at 51) as follows:
In the case of an applicant who does not meet the policy guidelines below, decision makers must consider the full circumstances of the case, including the best interests of the child, to determine whether the application nevertheless warrants approval because of the unusual nature of those circumstances.
Children under 16 applying individually in their own right
Children under 16 applying individually in their own right would usually not be approved under s24 unless they are permanent residents at the time of the application and decision and also meet the following policy guidelines:
·are under 16 when applying and living with a responsible parent who is an Australian citizen and who consents to the application or
·are usually resident in Australia with a permanent resident responsible parent 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
·are under 16 when applying, living with a responsible parent who is not an Australian citizen and consents to the application, and the child would otherwise suffer significant hardship or disadvantage ... or
·are an unaccompanied humanitarian minor who falls under the Minister's guardianship and a delegated guardian has consented to the application ... or
·are an unaccompanied humanitarian minor who does not fall under the Minister's guardianship and their responsible carer has consented to the application ...
CONSIDERATION
In hearing before this Tribunal, counsel for the Minister accepted that Atai met the citizenship requirements in subsection 21(5) of the Act. The Tribunal agrees and so finds.
Counsel for the Minister contended, however, that Atai’s application for citizenship should be refused pursuant to the discretion in subsection 24(2) of the Act because there is no evidence that Atai meets any of the policy guidelines in the ACIs. Relevantly, counsel for the Minister argued:
19. The applicant only needs to meet one of the policy guidelines.
20.The applicant’s father is an Australian citizen but the applicant’s mother is not. The applicant’s father consented to the application for citizenship when he signed the declaration on the application form on 2 March 2015 (see T5, p103). If the applicant is living with his father, the applicant will meet the first of the relevant policy guidelines.
21.However, at present there is insufficient evidence before the Tribunal for the Tribunal to conclude that the applicant is living with his father. The applicant spent only 65 days in Australia in the year immediately prior to the delegate’s decision, which is an insufficient amount of time to conclude that the applicant was living in Australia with his father.
…
23.The respondent therefore contends that, based on the evidence presently available, the applicant does not meet the first of the policy guidelines.
24.The second of the policy guidelines relates to children who usually reside in Australia with a responsible parent who is not an Australian citizen. This does not apply to the applicant, who cannot be said to usually reside in Australia.
25.The third policy guideline relates to applicants who live with a responsible parent who is not an Australian citizen and who consents to the application and where the applicant would otherwise suffer significant hardship or disadvantage.
26.It is open, based on the evidence presently before the Tribunal, for the Tribunal to find that the applicant is living with his mother, who is not an Australian citizen. There is no evidence to confirm that the mother consents to the application, although this could be implied from her letter regarding residency, which appears to have been provided in support of the applicant’s application (T9, p124).
27.The respondent contends, however, that the third policy guideline is not met as there is no evidence that the applicant would otherwise suffer significant hardship or disadvantage if he is not granted Australian citizenship.
…
29.The respondent is not aware of any circumstance that would cause the applicant to suffer significant hardship or disadvantage if he is not granted Australian citizenship.
30.The fourth and fifth policy guidelines both relate to unaccompanied humanitarian minors and do not apply to the applicant.
31.Consequently, the respondent contends that the applicant does not meet any of the policy guidelines for the grant of citizenship to a child under the age of 16.
In hearing before this Tribunal, counsel for the Minister made reference to records held by the Department that indicate that Atai spent the following time in Australia since being granted a permanent visa (AD1):
Arrival date Departure date
9 June 2012 19 September 2012
19 October 2012 20 March 2013
20 August 2013 5 October 2013
17 December 2014 1 January 2015
7 March 2015 6 April 2015
It was not disputed that when in Australia Atai lived with his father during these periods.
It is clear that these figures were relied on by the delegate for the Minister in his decision of 16 October 2015. As noted above, this information led the delegate to find that since his birth, Atai had spent 462 days in Australia and 888 days outside of Australia and 65 days within Australia and 300 days outside of Australia in the 12 months preceding the delegate’s decision. Based on this calculation, the delegate was not satisfied that the applicant was living with his father.
This was a point of much discussion before this Tribunal. Relevantly, the Tribunal was directed to paragraph 22 of the Minister’s Statement of Facts dated 29 January 2016, which relates to the first policy guideline (referring to a child under 16 who is “living with a responsible parent who is an Australian citizen”). In relation to this policy guideline, the Minister outlined as follows:
22.The respondent notes … that the ACIs do not necessarily require that the applicant be living in Australia with a responsible parent who is an Australian citizen, and that if evidence is provided of the applicant living with his father overseas, this could be taken into account. No such evidence has yet been provided to the Tribunal.
In oral evidence, counsel for the Minister reiterated the Minister’s conclusions in relation to accepting evidence of the amount of time Atai lived with his father overseas – not just in Australia as was done by the delegate who rejected Atai’s application for citizenship.
The Tribunal agrees with this interpretation of the ACIs’ first policy guideline. There is nothing in the expression “living with a responsible parent who is an Australian citizen”. The sentence does not, for example, read “living with a responsible parent in Australia who is an Australian citizen”. Nor, as correctly noted by counsel for the Minister in oral submissions, is there anything in the ACIs generally that requires that only time resident in Australia be deemed relevant. That may be how the delegate read the first policy guideline, but there is nothing in law or broad policy generally that required him to. He could have taken into account the time Atai lived with his Australian father in Israel but he chose not do so.
In relation to this issue, counsel for the Minister referred the Tribunal to a copy of Mr Vizman’s “movement record” (R1) dated 13 May 2016. Mr Vizman was cross examined extensively on this document.
In relation to his “movement record” Mr Vizman explained that other than a few weeks between 2013 and 2016, all overseas travel recorded on his “movement record” document relates predominantly to time spent in Israel with his son. Further, he explained that when he was in Israel, he either stayed with Atai’s mother or with his family and that when he did reside with his family, Atai was with him. Counsel for the Minister did not dispute that this was the case.
Relevantly, the evidence before this Tribunal (which does not appear to have been before the delegate who denied citizenship to Atai) now shows the following in relation to the amount time Mr Vizman lived with Atai in Australia between and overseas:
2013 Australia Overseas 4½ months 2 months Total 6½ months 2014 Australia Overseas ½ month 3½ months Total 4 months 2015 Australia Overseas 1½ months 3 months Total 4 months 2016 Australia Overseas 2½ weeks 3 weeks Total 5½ weeks
It is clear from the above that Atai spent a considerable amount of time living with his father – both in Australia and in Israel. Having now reviewed the above, and noting Mr Vizman’s uncontested evidence that Atai “lived with him” (ie, was “resident” with him) while in Australia and while overseas (primarily in Israel but for a period of a few weeks), the Tribunal finds that pursuant to the first policy guideline, Atai (as a child under 16) was “living with a responsible parent who is an Australian citizen” (his father) when his application for Australian citizenship was made.
Having found that the first policy guideline has been met, the Tribunal does not need to address any issues in relation to the remaining policy guidelines. The Tribunal notes, however, that it agrees with the analysis and conclusions made by the Minister at paragraphs 24 to 31 of the Minister’s Statement of Facts dated 29 January 2016.
Further, the Tribunal notes that 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.
In relation to this issue, chapter 18 of the ACIs advises officers to assess the best interests of a child in relation to decisions under the Act directly relating to the child and identifies the exercise of the discretion to refuse under s 24(2) of the Act as a particular occasion to consider the best interests of the child. It then continues, in chapter 18.3:
The meaning of 'best interests of the child' is not defined, but is informed, in part, by the principles in the [Convention on the Rights of the Child]. The factors that are most likely to be relevant to citizenship decisions are:
·children should be protected from all forms of physical or mental violence, injury or abuse, neglect or negligent treatment, maltreatment or exploitation, including sexual abuse
·families should be able to stay together, as far as possible
·the rights and duties of parents and other relevant family members should be respected and it should be recognised that both parents have common responsibilities for the upbringing and development of the child
·the child has the right to preserve his or her identity, including nationality, name and family relations as recognised by law
·prevention of the illicit transfer and non-return of children abroad
·freedom of religion
·the views of the child should be given weight in accordance with the child's age, maturity and level of understanding and
·the degree of the child's integration into the Australian community.
An analysis of the effect of Article 3.1 is, of course, entirely fact specific. The evidence in relation to Atai demonstrates that his familial/parenting situation is not entirely usual. He was born in Australia but his mother has returned to Israel. His father, also an Israeli citizen, now resides in Australia as an Australian citizen and intends to stay here. Both parents are committed to their son and do their best to ensure that they have an equal role in his upbringing. Doing this across borders is no easy task but both parents seem to be doing an impressive job in that regard. It is clear that both parents intend for their son to spend more time in Australia with his father and that they are committed to him identifying as Australian. The child has already integrated into the Australian community and formed community-based relationships in Australia through his childcare centre arrangements and it is clear that he will spend more and more time with his father in Australia as he gets older and is more independent.
The Tribunal finds that in these circumstances it is in Atai’s “best interests” that his Australian citizenship be approved.
CONCLUSION
For the reasons outlined above, the Tribunal finds that Atai Vizman’s application for Australian citizenship by conferral should be approved.
Accordingly, the decision under review is set aside and remitted to the Respondent with a direction that citizenship be approved.
I certify that the preceding 43 (forty- three) paragraphs are a true copy of the reasons for the decision herein of Deputy President Dr Christopher Kendall. ..............[sgd D Brodie]......................
Administrative Assistant
Dated 20 May 2016
Date of hearing 18 May 2016 Representative of the Applicant Mr M Vizman Representative of the Respondent Ms A Ladhams Solicitors for the Respondent Australian Government Solicitor
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