Vo and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Citizenship)
[2022] AATA 2520
•9 August 2022
Vo and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Citizenship) [2022] AATA 2520 (9 August 2022)
Division:GENERAL DIVISION
File Number(s): 2021/4223; 2021/4208
Re:SUONG THI THU VO and
NHI THAO PHAM
APPLICANTS
AndMinister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
RESPONDENT
DECISION
Tribunal:Chris Puplick AM, Senior Member
Date:09 August 2022
Place:Sydney
The decision under review in respect of Ms Suong Vo in matter number 2021/4223 is affirmed.
The decision under review in respect of Ms Nhi Thao Pham in matter number 2021/4208 is set aside and the matter remitted to the Respondent with a direction that the Minister’s discretion in section 24(2) of the Act not be exercised adversely to the Applicant.
................................[SGD]........................................
Chris Puplick AM, Senior Member
CATCHWORDS
CITIZENSHIP – by conferral – permanent resident – application for citizenship – applicant married to Australian citizen – applicant does not meet residence requirements – discretion under subsection 22(9) of the Australian Citizenship Act 2007 (Cth) enlivened – application of Australian Citizenship Instructions – whether applicant has a close and continuing association with Australia – discretion not to be exercised in Applicant's favour – decision under review affirmed
CITIZENSHIP – by conferral – permanent resident – application for citizenship – Applicant a minor at the time of application – whether Applicant satisfies requirements of subsection 21(5) of the Australian Citizenship Act 2007 (Cth) – whether Applicant subject to significant hardship – whether discretion in subsection 24(2) of the Australian Citizenship Act 2007 (Cth) should be exercised adversely to the Applicant – Tribunal does not import other tests into exercise of discretion – decision set aside and remitted.
LEGISLATION
Australian Citizenship Act 2007 (Cth)
CASES
Chirenda v Minister for Immigration and Border Protection [2015] AATA 64
Ho and Minister for Immigration and Ethnic Affairs (1994) 34 ALD 664
Judd v Minister for Immigration [2017] FCA 827
Kim and Minister for Immigration and Border Protection [2015] AATA 67
Kumar and Minister for Immigration and Border Protection [2014] AATA 944
Li and Minister for Immigration and Border Protection [2015] AATA 270
Minister for Home Affairs v G [2019] FCAFC 79
Minister for Immigration, Local Government and Ethnic Affairs v Roberts [1993] 41 FCR 82
Mishra and Minister for Immigration and Border Protection (Citizenship) [2019] AATA 2479
Nassif and Minister for Immigration and Border Protection (Citizenship) [2018] AATA 677
Nicholls and Minister for Immigration and Border Protection [2014] AATA 196
Park v Minister for Immigration and Citizenship [2010] AATSA 886
Paula and Minister for Immigration and Citizenship [2012] AATA 543
PMYL and Anor and Minister for Immigration and Border Protection [2014] AATA 148
Saba and Minister for Immigration and Border Protection [2014] AATA 579
Sabumei and Minister for Immigration and Border Protection [2014] AATA 648
Taher and Minister for Immigration and Border Protection [2013] AATA 917
Ul Haque and Minister for Immigration & Citizenship [2013] AATA 118
Vasiunina and Minister for Immigration and Border Protection (Citizenship) [2018] AATA 943Yang and Minister for Immigration and Border Protection [2017] AATA 364
SECONDARY MATERIALS
CPI 4 – Australian Citizenship by Conferral – Person under 18
CPI 8 – Residence Requirements and Discretions
CPI 11 – Assessing likelihood to reside or continue to reside in or maintain a close and continuing association with Australia
CPI12 – Assessing significant hardship, disadvantage or detriment for the purposes of Australian citizenship
Australian Citizenship Policy Statement (27 November 2020)
REASONS FOR DECISION
Chris Puplick AM, Senior Member
09 August 2022
Mrs Suong Thi Thu Vo (the first Applicant) applied for the grant of citizenship by conferral on 16 September 2020, but her application was refused by a delegate of the Minister (the Respondent) on 22 June 2021.
The basis for the Delegate’s refusal of her application was that she allegedly failed to satisfy the legislative requirements related to general residency and that she does not have a “close and continuing association with Australia”.[1]
[1] Vo T-documents at 75-83.
On 24 June 2021 the Applicant applied to this Tribunal for a review of the Delegate’s decision and the matter was heard on 21 July 2022, initially using the Microsoft Teams platform and then, when that expired part-way through the hearing, the Tribunal (with the consent of the parties) continued with audio-participation. Ms Vo represented both herself and her daughter in the proceedings and both she and Mr Hope (but not Ms Pham) gave evidence.
On the same day as she lodged her application for citizenship (16 September 2020), her daughter Nhi Tho Pham (the second Applicant) made a similar application for citizenship by conferral. At the time Ms Pham was 17 years of age (she is now 18 years of age) and so her application was considered under different provisions of the Act. However, the Minister’s delegate refused her application alongside that of her mother on 22 June 2021, albeit on slightly different grounds, and she then appealed that decision to this Tribunal on the same day as her mother, 24 June 2021.
For the sake of convenience Ms Pham’s application was heard by the Tribunal in the same proceedings as that of her mother Mrs Vo although separate determinations must be made in each.
The Legislative Framework: Citizenship by Conferral
The Australian Citizenship Act 2007 (Cth) (the Act) provides that a person may make an application for citizenship by conferral.[2] The Minister must make a decision on the application and either approve or refuse it.[3]
[2] Australian Citizenship Act 2007 (Cth) (Act) s 21(1).
[3] Act s 24(1).
An applicant must meet certain qualifications a specified in the Act[4] and, if they do, they must then undertake and pass the Citizenship Test[5] (unless they are exempted from so doing).[6] Once those steps are complete, a qualified applicant must make the Pledge of Commitment[7] (unless they are exempted from so doing)[8] before their citizenship is granted finally.
[4] Act s 21(2).
[5] Act s 23A.
[6] Act ss 21(3)(d) and 21(4)-(8).
[7] Act s 26.
[8] Act s 26(1).
Eligible applicants for Australian citizenship by conferral must meet the requirements set out in subsection 21(2)[9] of the Act which provides:
[9] Emphasis added.
(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.
To be successful in an application for citizenship by conferral an applicant must satisfy all of the criteria set out in that subsection. As noted, the Minister’s delegate was not satisfied that the Applicant met the requirements of sections 22(1)(a) and (c) and 21(2)(g).
The general residency requirement
The Act requires that an applicant for citizenship by conferral must satisfy what is called the “general residence requirement” as set out in section 22 of the Act. Section 22(1) provides:
(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.
The general residency requirement provisions are subject to possible waiver, at the discretion of the Minister (or relevant decision-maker), as provided by section 22(9):
(9) If the person is the spouse, de facto partner or surviving spouse or de facto partner of an Australian citizen at the time the person made the application, the Minister may treat a period as one in which the person was present in Australia as a permanent resident if:
(a)the person was a spouse or de facto partner of that Australian citizen during that period; and
(b)the person was not present in Australia during that period; and
(c)the person was a permanent resident during that period; and
(d)the Minister is satisfied that the person had a close and continuing association with Australia during that period.
The alternatives in section 21(2)(g)
It will be noted that there are a series of alternative means by which an applicant can satisfy the residency requirements of section 21(2)(g). They are:
(i)by being found to be “likely to reside” in Australia, OR
(ii)by being found to “continue to reside” in Australia, OR
(iii)by maintaining a “close and continuing association with Australia”.
It is sufficient that any one of these conditions be met in order to qualify under the subsection.
Further Guidance
Apart from the plain words of the statute, in making determinations under the Act, the Tribunal also takes account of the Australian Citizenship Policy Statement and Citizenship Procedural Instructions (CPI) which guides and assists decision-makers, in particular Citizenship Procedural Instruction 11 – Assessing Likelihood to reside or continue to reside in, or maintain a close and continuing association with Australia (CPI 11) effective as from 17 April 2019.[10] Unlike previously published departmental policy documents, the CPIs do not contain, in their present iteration, any set of indicia by which a “close and continuing association” is to be assessed. At best they provide some examples of what might be indicative of “participation in the Australian community”; factors related to the living arrangement of the applicant in their current country of residence and some examples which “would not ordinarily be of concern” related to frequent absences overseas of a person ordinarily resident in Australia.
[10] CPI 11 - Assessing likelihood to reside or continue to reside in or maintain a close and continuing association with Australia (CPI 11).
In relation to such Instructions, the Tribunal notes that Senior Member McCabe (as he then was) observed in Kumar that:
… I do not accept the Australian Citizenship Instructions[11] are useful aids to the interpretation of the statute. At best they represent the respondent’s opinion as to the correct interpretation of the legislation. My task is to focus on the words of the statute in their context. The Act says what it says, and the words mean what they say.[12]
[11] These “Instructions” (last made on 26 February 2015) have since been replaced by the Australian Citizenship Policy Statement (27 November 2020) in the same terms. See Department of Home Affairs, Australian Citizenship Policy Statement (27 November 2020). The current set of Instructions are a different form of advice to decision-makers.
[12] Kumar and Minister for Immigration and Border Protection [2014] AATA 944 at [7]. Emphasis added.
The Tribunal also notes the comments of Einfeld J in Roberts to the effect that
Therefore all factors that are relevant should be taken into account and their consideration should not be denied because they fall outside guidelines which have been prepared. That is not to say, however, that any can be taken into account — the tribunal and indeed any decision-maker is necessarily constrained by the legislation itself.[13]
[13] Minister for Immigration, Local Government and Ethnic Affairs v Roberts [1993] 41 FCR 82 at [86].
Likely to Reside
Taking the words at their face value, a decision-maker must determine whether or not there is sufficient evidence to support a finding that there is a genuine, realistic prospect of the applicant residing in Australia.
In Ho, the Tribunal said of that term:
It can not mean "likely to take up residence in 18 months or two years time" or “likely to reside some time in the indefinite future if economic conditions permit and if a suitable job can be found”. The juxtaposition of the phrase with the opening phrase of the paragraph, indicates that the minister must be satisfied that the applicant is likely to reside in Australia immediately, or very soon after, being granted a certificate of citizenship.[14]
[14] Ho and Minister for Immigration and Ethnic Affairs (1994) 34 ALD 664 at [31].
Similarly, in Saba:
…the intention to which s 21(2)(g) of the 2007 Act refers is one that is to be acted upon within a reasonably short time frame.[15]
[15] Saba and Minister for Immigration and Border Protection [2014] AATA 579 at [50].
Even accepting this to be a correct statement of the meaning of “likely to reside”, there is still a wide discretion left to the Tribunal to determine, in each case, what might constitute a “short” or “very soon” or “reasonable” time. The Tribunal must deal with matters of the real world and not a set of confected or ideal situations and this requires acceptance that in the “era of COVID-19” there are, and have been, real constraints on people’s movements, their ability to secure flights and the extent to which they may or may not be admitted to Australia. Not only are the constraints real, they have varied from time to time, and even from place to place within the nation.
The relevant part of the CPI’s (CPI 11 at 3.2) states:
Likely to reside or continue to reside in Australia
The words comprising the phrase ‘likely to reside or continue to reside’ should be given their ordinary meaning in the context in which they appear. The Macquarie Dictionary Online defines:
‘likely’ as probably or apparently going or destined (to do, be, etc.) – in the context of the requirements of the Act, this means it is probable rather than possible that the person will reside in Australia;
‘reside’ as to dwell permanently or for a considerable time; have one's abode for a time – in the context of the requirements of the Act, this means the person’s home in which they ordinarily live is in Australia.
The person’s intention to reside in Australia should be investigated if the applicant has indicated they will:
be outside Australia during processing of their application; for example, they have asked to take the citizenship test or pledge overseas; or
reside outside Australia after obtaining citizenship; for example, they have indicated an intention to migrate elsewhere or to take up employment outside Australia.
Past international movements may also indicate that a person’s intention to reside in Australia should be investigated. For example, a person having spent significant periods of time outside Australia while a permanent resident and seeking to have the ministerial discretion in subsection 22(9) of the Act applied (refer to Citizenship Instruction 8 – Residence Requirements and Discretions) may be an indicator that they have not committed to residing in Australia. However, such travel movements must be considered in the light of evidence about the person’s intended residence. If the decision-maker finds that an applicant is not likely to reside or continue to reside in Australia, the decision-maker must consider whether the applicant will likely maintain a close and continuing association with Australia.
The CPIs go on to give further guidance about the factors which may indicate that an applicant intends to reside in a particular place. In relation to this application, among the factors listed in the CPI (at 3.3) are:
Whether they are currently renting a home, and if so, when their lease would expire and what options are open to the person to break the lease if necessary;
Whether they have purchased a property in their country of residence, and whether they reside in the property or have made another arrangement, such as leasing it to a third party;
Whether they have any assets, commitments or ties to a country that may require or incline them to continue to reside in that country.
Frequency and purpose of visits to Australia if the applicant resides overseas. Is the person simply holidaying, or are they maintaining some form of association with Australia, for example, by undertaking professional studies to ensure they can engage in their profession on return to Australia?
Frequency and reasons for absences from Australia if the person resides in Australia.
Participation in the Australian community
The applicant has a close family member (such as a spouse/de facto partner or child) who is an Australian permanent resident or Australian citizen and that family member intends on residing in Australia.
A Close and Continuing Association
This application turns, to some degree, upon the interpretation of requirements related to the length of time the Applicant has been physically present in Australia and the quality of that engagement, both past and projected. There are two elements in this, the length of time which is a matter of fact and the degree to which the applicant has a “close and continuing association with Australia” which is a matter of judgement and debate.
The Tribunal recognises what was said in Ul Haque, namely that “[w]hether Mr Ul Haque had ‘a close and continuing association’… is a question of fact to be objectively assessed having regard to all relevant factors including those listed in the Instructions.”[16] The Tribunal went on to say that “[w]hile physical presence is not determinative, it is nonetheless highly relevant to the nature of a person’s association with Australia.”[17]
[16] Ul Haque and Minister for Immigration & Citizenship [2013] AATA 118 at [44].
[17] Ibid at [50].
It seems to the Tribunal that words such as “close” and “continuing” must lend themselves to varying interpretations if they are to be “objectively assessed”, or at the very least differing weight may be accorded to “all relevant factors” with respect to the circumstances of each case.
CPI 11 provides further guidance on definitional questions when it states:[18]
‘maintain’ as to keep in existence or continuance; preserve; retain;
‘close’ as near, or near together, in space, time, or relation;
‘continuing’ as to last or endure;
‘association’ as the act of associating … connection or combination.
It is important to note that the requirement to maintain a close and continuing association refers to an association with Australia, not with Australians. This means that a close and continuing association with immediate/ extended family or other social relationships or networks in Australia may not be sufficient to meet this legal requirement, although the merits of every case must be carefully considered.
[18] Vo T-documents at 129. CPI 11 at 3.2 (emphasis added).
The Tribunal notes that the CPI uses the word “may” (implying a degree of discretion in decision-making) and requires each case to be considered on its individual “merits”.
The Macquarie Dictionary,[19] among its many definitions of the word “close” refers to:
31. intimate; confidential: close friendship.
32. based upon a strong uniting feeling of love, honour, etc.: a close union of nations.
[19] Macquarie Dictionary (online at 5 July 2019) ‘close’ (def 31 and 32) and ‘continuing’ (def 3 and 6).
“Continuing” is defined as:
3. to last or endure.
…
6. to go on with or persist in: to continue an action.
In Nassif the Tribunal adopted the definitions from the Australian Oxford Dictionary stating:
In applying paragraph 22(9)(d) it is necessary to consider the ordinary meaning of the words used. The following definitions are taken from the Australian Oxford Dictionary:
·‘close’ means ‘having a strong or immediate relation or connection’;
·‘continuing’ means ‘to remain in existence or unchanged’; and
·‘association’ means ‘the act or an instance of associating; fellowship or companionship’.[20]
[20] Nassif and Minister for Immigration and Border Protection (Citizenship) [2018] AATA 677 at [15].
The CPIs make it clear that the checklists which they provide list factors which may be included in, but are not exclusive of, the totality of matters to be considered in the decision-making process. They state:
Following are examples of factors that may be relevant when assessing whether an applicant is likely to reside or continue to reside in Australia, or maintain a close and continuing association with Australia should their application be approved. … Decision makers must be mindful that the following factors are a guide only and that each case must be assessed on its facts.
In relation to most of these items in the “check-list”, example are given to help guide the decision-maker in making their determination (see infra).
As the Tribunal has noted, with so many of the key concepts in the Act, the Act itself contains no precise definition of what the terminology “close and continuing association” actually means. That must be adduced from previous decisions of the Courts and this Tribunal. Unfortunately, there is no unanimity on that point and different decision-makers have come to different conclusions. What is clear however is that:
[w]hether the applicant had “a close and continuing association” throughout the relevant period is a question of fact to be objectively assessed having regard to all relevant factors including those listed in the Instructions. The forming of an opinion about whether a person has demonstrated the requisite association is not a simple mechanical exercise to be undertaken by merely tallying the relevant factors. The indicia of association listed in the Instructions have no hierarchy or weighting. The weight to ascribe to each and whether one or more should be given greater weight than others is a matter for the decision-maker. The decision-maker must also consider whether other indicia of association might be relevant in the circumstances of the particular case.[21]
[21] PMYL and Anor and Minister for Immigration and Border Protection [2014] AATA 148 at [30].
In both Li [22] and Vasiunina [23] the Tribunal discussed at some length the variety of opinions expressed regarding definitions of this key phrase.
[22] Li and Minister for Immigration and Border Protection [2015] AATA 270 at [13]-[38].
[23] Vasiunina and Minister for Immigration and Border Protection (Citizenship) [2018] AATA 943 at [39]-[49].
As noted, there are many decisions on this point, the gravamen of which are that “close and continuing” is primarily a matter of adding up periods of residency or physical presence in Australia and somehow determining if they are “enough” to satisfy the requirement of a close and continuing association,[24] although what “enough” might be is itself unclear.
[24] Yang and Minister for Immigration and Border Protection [2017] AATA 364 at [26].
In Nassif,[25] Kim,[26] Taher[27] and Nicholls,[28] the Tribunal stressed the centrality of physical presence in Australia in determining whether the general residency requirements can be met by an Applicant. However, the Tribunal continued to emphasise that each decision must be on the basis of the evidence taken and considered as a whole.[29]
[25] Nassif and Minister for Immigration and Border Protection (Citizenship) [2018] AATA 677 at [37].
[26] Kim and Minister for Immigration and Border Protection [2015] AATA 67 at [31].
[27] Taher and Minister for Immigration and Border Protection [2013] AATA 917 at [47].
[28] Nicholls and Minister for Immigration and Border Protection [2014] AATA 196 at [33].
[29] Ibid.
On the other hand, in Saba, Paula[30] and Judd[31] the Tribunal or Court has been less concerned with the aspect of physical presence and more with the quality of attachment. Indeed, in Judd the Court noted, “the concept of a ‘close and continuing association’ is a broad one, requiring the Minister to adopt what senior counsel for the applicant described as ‘a multi-factorial approach’”.[32]
[30] Paula and Minister for Immigration and Citizenship [2012] AATA 543 at [34].
[31] Saba and Minister for Immigration and Border Protection [2014] AATA 579; Paula and Minister for Immigration and Citizenship [2012] AATA 543; Judd v Minister for Immigration [2017] FCA 827.
[32] Judd v Minister for Immigration [2017] FCA 827 at [14].
In Vasiunina [33] I said:
[30] The law in this regard seems, on the face of it, to be clear. The legislation requires that there be “a close and continuing association with Australia.” Although that seems simple enough, it begs the question: what is meant by “Australia” in this context? For example:
does it mean merely a physical place on the face of the planet, a continent girt by sea?; or
does it mean the concept of Australia as a nation — diverse, replete with its extraordinarily ancient indigenous traditions, its multiculturalism and its shared ethos and values?
…
[32] Asking the question “what is Australia” within the context of this legislation seems as fruitless as Pilate’s enquiry about truth (John 18:38). I have found no relevant authority on this point.
[33] Vasiunina and Minister for Immigration and Border Protection (Citizenship) [2018] AATA 943.
In Mishra, the Tribunal reinforced a broader evaluative construction of the “close and continuing association” requirement and said:
[52] The language used in section 22(9)(d) namely “close and continuing association with Australia” are not ambiguous and is capable of being construed when applied to the facts and circumstances of each case. This requires an evaluative judgement. It should not be subject to, as the Applicant contends, a narrow construction.
[53] In the exercise of such an evaluative judgement a decision-maker is entitled, but not bound to take into account the Citizenship Policy.[34]
[34] Mishra and Minister for Immigration and Border Protection (Citizenship) [2019] AATA 2479. Footnote omitted.
There is no way of avoiding consideration of the “close and continuing” criteria in this application. If it exists in consideration of section 22(9) then the requirements of section 21(2)(g) are satisfied. On the other hand if initially it is considered that section 21(2)(g) is satisfied in relation to an established intention to reside then, given the failure of the Applicant to meet the time requirements of sections 22(1)(a) and (c), and thence the enlivenment of section 22(9), a decision-maker is back at the same point.
DETERMINATION : SUONG THI THU VO
The First Applicant is a citizen of Vietnam who in June 2015 married an Australian citizen, Mr Stephen Hope. Both parties have children from a previous marriage, the Applicant’s daughter being Ms Nhi Thao Pham[35]. The Applicant first arrived in Australia on 31 January 2013 and remained here a short time, departing on 15 February 2013. The Applicant then made 8 subsequent trips to Australia on a tourist visa which was converted to a Partner Visa (subclass 100) on 26 April 2018. This means that, from that date, the Applicant was regarded as a “permanent resident”.[36] She last departed Australia on 22 December 2018 and has remained offshore since that date.[37]
[35] Date of birth in 2003.
[36] Vo Tribunal documents (T-documents) at 77.
[37] Vo Supplementary Tribunal documents (ST-documents) at 223-224.
The Applicant’s narrative
The Applicant has set out her personal details as follows:
·31 January 2013 to 15 February 2013 she was in Australia for a holiday.
·21 November 2013 to 10 February 2014 the Applicant and her daughter visited Australia and gave consideration to arrangements for her daughter to study in Australia. However they decided that given the daughter’s age (then ten years) it would be better for her to complete schooling in Vietnam. It was during this trip that the Applicant met her future husband Mr Stephen Hope. Mr Hope then commenced visiting the Applicant in Vietnam on a regular basis.
·5 June 2015 to 17 June 2015 the Applicant and her daughter travelled back to Australia where on 12 June 2015 she married Mr Hope.
·5 December 2015 to 13 December 2015 and again from 2 February 2016 to 15 February 2016 the Applicant and her daughter spent time in Australia with her husband and various family friends.
·26 June 2016 the Applicant and her daughter moved to Australia to reside on a permanent basis.
·On three occasions (11 January 2017 to 27 January 2017; 16 September to 8 October 2017 and 4 June 2018 to 7 July 2018) the Applicant and her daughter returned either to visit family in Vietnam or, on the last occasion to the United Kingdom to visit Mr Hope’s family.
·16 September 2018 to 29 September 2018 following Mr Hope’s transfer to Singapore by his company, the Applicant spent time in Singapore examining options for accommodation and schooling.
·On 22 December 2018 the Applicant and her daughter moved to reside in Singapore with her husband whose secondment to that position was expected to last for a period of some 2 to 4 years.[38]
[38] Statement of Suong Vo (24 October 2021). These dates are consistent with the formal travel records submitted by the Respondent in the Vo Supplementary Tribunal documents.
The Applicant goes on to note that plans for herself and her daughter to return to Australia between June 2019 and February 2022 were frustrated on a number of occasions as a result of COVID-19 travel bans imposed by both the Australian and Singaporean authorities. The Tribunal has no reason to doubt the validity of the Applicant’s statement in this regard and is fully cognisant of the extent to which international travel in that period was utterly disrupted by COVID-related bans and restrictions.
The Respondent does not dispute this narrative but deduces from it that
8.The delegate found that the applicant did not satisfy the general residence requirement under s 22(1)(a) of the Act, as the applicant had been absent for 703 days in the 4 years prior to lodging her application for citizenship. The delegate considered s 22(1A) of the Act and determined that the applicant’s total absences from Australia exceeded the required 12 months under that provision. As such, the delegate determined that the applicant did not satisfy s 22(1)(a) of the Act.
9. The delegate also found that the applicant did not satisfy the general residence requirement under s 22(1)(c) of the Act, as the applicant (as a permanent resident) had been absent for 366 days in the 12 month period prior to lodging her application for citizenship. The delegate considered s 22(1B) of the Act and determined that the applicant’s total absences from Australia exceeded the required 90 days under that provision. As such, the delegate determined that the applicant did not satisfy s 22(1)(c) of the Act.[39]
[39] Respondent’s Statement of Facts, Issues and Contentions (SFIC).
Such details are a matter of fact, a matter of record, and clearly the Applicant’s periods of physical residence in Australia do not meet the requirements of sections 22(1)(a) and 22(1)(c) of the Act.
This finding then enlivens consideration of the provisions of section 22(9) which exist in order to ameliorate the otherwise prescriptive consequences of the time qualification requirements.
In Judd the Federal Court explained this process as follows:
The purpose of s 22(9) “is to qualify or ameliorate the strictness of the general residence requirement” by providing a mechanism whereby that requirement, and the difficulty which some applicants could experience in meeting it, can be mitigated: While not defined in the Act, it was not in issue that the expression “close and continuing association” should be given its ordinary meaning. As such, I accept that the expression requires more than that there be some evidence of a relevant kind of association. Rather it is to be objectively assessed, and requires “a qualitative assessment of the ultimate significance of an applicant’s circumstances”. Nor was it in issue that the concept of a “close and continuing association” is a broad one, requiring the Minister to adopt what senior counsel for the applicant described as “a multi-factorial approach”. [40]
[40] Judd vMinister for Immigration [2017] FCA 827; (2017) 72 AAR 349 at [14]. Citations omitted.
In Hammad, Abrahams J explained:
The purpose of s 22(9) is to enliven a discretion to treat a period of time when an applicant for citizenship is outside of Australia as time spent in Australia, in circumstances where a decision-maker is satisfied as a matter of fact that such an association has been established. Given the requirements for citizenship, the Citizenship Act approaches an application on the basis that time spent in Australia is prima facie indicative of a close association with Australia.
As the respondent submitted, a person does not come within the exception simply by establishing some form of connection with Australia or with Australians or with something that is connected to Australia. Rather, the nature of the proximity to Australia needs to be assessed in light of the statutory scheme. It needs to be of such a nature as to warrant a departure from the application, that is the strict application, of the residence requirements. That is a factual assessment.[41]
[41] Hammad v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 833 Abraham J at [14]-[15].
The Applicant explains her absence from Australia as being related essentially to her husband’s employment in Singapore. She explains that from June 2016 to December 2018[42] she was in full-time employment in Australia but that in September 2018 her husband was transferred by his employer to work in Singapore. The Applicant implies that Mr Hope had little choice in the matter.
[42] The Applicant worked for AIC Australia and QBE Australia.
The Applicant then elaborates on her situation and, rather than attempt to summarise those submissions, the Tribunal reproduces in full what Ms Vo asserts[43]:
[43] Applicant’s Statement of Facts (15 May 2022).
4In my case, my husband and I will definitely move back to Australia after his employment oversea finishes, and I therefore meet the criteria in likely to reside in Australia. We have done everything we can to prepare for our life back to Australia including but not limited to the following:
(a)My husband’s employment contract is on a definite term (2-4 years) and includes a clause which guarantees our return back to Australia as well as to cover the relocation costs back to Australia.
(b)Our stay in Singapore is temporary and we do not have any property or investment in Singapore. We have only rented the apartment in Singapore. Also, we did not apply for permanent residency in Singapore even though we would have been able to enjoy some benefits which are only applicable to Singapore citizens or permanent residents.
(c)We did not sell our property in Australia even though it would not be financially beneficial to keep a property in Australia for rent especially during Covid time when the property price was going up and the rent was going down significantly (our rent was reduced from $760/week to $630/week) as we would like to ensure that we will always have a place to stay when return to Australia.
(d)We are looking to buy a bigger house to live when we return to Australia. We have obtained the bank BOQ’s pre-approval for home loan and requested Stephen’s cousin (John Fullerton) or our friend (Tim Date) to inspect houses for us a few times
(e)Our relatives and friends in Australia are well aware of our plan to return to Australia when Stephen’s employment oversea finishes – as well as our daughter – Nhi Pham’s return to Australia in Jan 2022.
(f)We sent our daughter, Nhi Pham, back to Melbourne, Australia to live permanently when she became an adult to ensure that we can live in the same city when we return to Australia. We have done all the necessary arrangements for her permanent return to Australia including sending her to the Australian school in Singapore (to follow the Australian education systems curriculum) even though it is the most expensive school in Singapore purchasing an apartment for her to live in Melbourne.
(g)Stephen’s daughter from his first marriage is Australian and living in Melbourne with his ex-wife and he is in frequent contact with her.
(h)We have maintained our bank accounts in Australia and have transferred our saving money from Singapore to Australia
(i)Both my husband and I have our superannuation funds in Australia
(j)We are making arrangement to transfer Stephen’s pension in the UK to Australia before we return to Australia.
(k)Stephen has maintained his membership of the Melbourne Cricket Club (MCC) and kept paying membership fees whilst overseas intending to use that when we return to Australia
(l)I also explored the opportunity to work for QBE Australia while in Singapore but unfortunately it did not work out.
During cross-examination by the Respondent’s representative a number of the Applicant’s assertions as listed above were tested and apart from the claim stated in the chapeau none of them was seriously called into question.
The Respondent did however advance the following matters in their SFIC:
1No evidence has been provided by the Applicant of her taking any positive steps to make formal arrangements for a return to Australia at any time in the foreseeable future and there is indeed no clear date at which time it could be assumed that Mr Hope would not intend to continue to work overseas;
2While the Applicant owns two properties in Australia, one recently purchased for and resided in by her daughter, the “family” home in South Melbourne has been rented out with the current lease arrangement not due to expire until May 2023;
3The management of bank accounts and superannuation arrangements, or Mr Hope’s United Kingdom pension are matters that can be undertaken from anywhere in the world and their mere location in Austrasia is, to that extent, irrelevant;
4The Applicant has not maintained any employment connection with Australia since her departure in December 2018 and during the period that she did reside in Australia she was not participant in anything that could be considered to be “community activities”;
5The Applicant has a sister, two nieces and a nephew who are now living in Australia, but her sister became resident only one month ago and the other immediate members of her family, her parents, are living in Vietnam.
CPI 8 deals with the exercise of Ministerial discretion under subsection 22(9) of the Act.
This discretion allows periods of time spent outside Australia as a permanent resident to be counted as time spent in Australia for the purposes of meeting the requirements subsection 22(1)(a) and subsection 22(1)(c) of the Act in circumstances where the applicant has exceeded the allowable absences set out in subsection 22(1A).
The discretion can only be applied to periods when:
the applicant was a spouse or de facto partner of that Australian citizen during that period; and
the applicant was not present in Australia during that period; and
the applicant was a permanent resident during that period; and
the applicant had a close and continuing association with Australia during that period (refer to Citizenship Instruction 11 – Assessing likelihood to reside or continue to reside in, or maintain a close and continuing association with Australia).
The applicant must be the spouse, de facto partner or surviving spouse or de facto partner of an Australian citizen at time of application.
The Tribunal heard evidence from the Applicant’s husband, Mr Stephen Hope and had before it a copy of his employment contract with Charles Taylor Adjusting dated 24 April 2021.[44] The contract makes it explicit in Part 5 that:
Your normal place of work is Singapore office. However, you may be required to work, either temporarily or permanently, at such other places as the Company may reasonably require after appropriate consultation with you.
[44] Applicant’s Tender Bundle 1 (unpaginated).
Although the contract does not specify a termination date, Mr Hope’s evidence was to the effect that it was for two years as this was itself dependent upon the term of his employment pass to work in Singapore. The Tribunal thus takes it that the contract expires in April 2023 and that Mr Hope is required to work in Singapore (or elsewhere as directed) until that date.
Mr Hope went on in his evidence to advise that, at the end of his contract he had several options open to him. They included a return to live in Australia and seek to work as a consultant in his specialised field. A further option was an extension of work in Singapore for one more year. However he was also giving serious consideration to taking up a position in Vietnam which he described as a “massive opportunity” and which could see him living and working in Vietnam for “a couple of years”. The Tribunal notes that the Applicant also advised that her parents were living in Vietnam.
The Tribunal has no doubt that both the Applicant and Mr Hope have a genuine commitment to return to Australia to live, at some stage, perhaps within the next five years. They have a home here and it is likely that their daughter will be here still completing her studies. They also have friends here and letters of support for this application were provided by a relative of Mr Hope’s (Mr John Fullerton) and a lifelong friend of the Applicant’s who has been living in Melbourne since 1996 (Ms Ngoc Nguyen).
However, there are two major obstacles facing this Applicant. The first is the weight of Tribunal authority that there needs to be something more than a vague sense of when residency might be effected. As noted above, terms such as “short”, “very soon” or “reasonable” in relation to a period of time are certainly open to interpretation as to their precise meaning but what they do not encompass is the idea of “indefinite”.
The Applicant, like Ruth[45] in the Old Testament, has made it clear that wherever Mr Hope resides, that will be her place of residence. His evidence is that over the next few years he could be resident in any number of places and that his career comes first and “massive opportunities” are not to be passed up.
[45] “For wither thou goest, I will go and where thou lodgest, I will lodge”. Ruth 1:16.
A lack of any degree of reasonable certainty precludes the Tribunal from finding that there is an intention to reside in the sense contemplated in the legislation.
The second point is that the Applicant has not established any degree of a “close and continuing association” with Australia. Apart from Mr Hope there is not even a clear indication of any close and continuing association with any other Australians, except perhaps Mr. Fullerton and Ms Nguyen.[46] It is true that the Applicant has lived for some 703 days in Australia in the four years prior to lodging her application but these themselves were in a fragmented sequence of residencies, none of which appear to have been for more than about 8 months. During that time she was certainly employed and contributed to Australia in that capacity, but her community or other social engagement appears to have been somewhat limited.
[46] It is not clear as to whether Ms Nguyen is an Australian citizen or not.
What the Tribunal in Sabumei described as a “qualitative assessment”[47] of the Applicant’s position does not yield a finding favourable to the existence of a close and continuing association. No one factor alone can necessarily be determinative, not even the existence of family ties to an Australian.[48] The qualitative assessment must be “multi-factorial” (Judd) and in this case there are insufficient factors to support a finding that the Applicant meets the test of having a close and continuing association with Australia in the relevant period. Failure on this ground must, necessarily, be fatal to the application, regardless of any other finding which might have been made (but has not been) about the intention to reside.
[47] Sabumei and Minister for Immigration and Border Protection [2014] AATA 648 at [35].
[48] Yang and Minister for Immigration and Border Protection (Citizenship) [2017] AATA 364 at [35].
The Tribunal appreciates the extent to which this Applicant feels denied the opportunity to acquire citizenship because of her marriage to Mr Hope and his being required to work outside Australia and believes this to be manifestly unfair. The Parliament recognised that situations like this could occur when it enacted the ameliorative provisions of section 22(9) of the Act in an attempt to import some degree of decision-making discretion into determining the questions of residency. However those ameliorative provisions require that certain conditions be fulfilled before they can become effective and in this instance those conditions have not been met. The genuine sympathy which the Tribunal has for the Applicant’s position cannot, however, overbear its responsibilities to make a decision which is properly in accordance with the Act.
DECISION
The decision under review in respect of Ms Soung Vo in matter number 2021/4223 is affirmed.
DETERMINATION: NHI THAO PHAM
The Tribunal has already detailed the process by which Ms Pham’s application comes before the Tribunal and now sets out the issues which differentiate the substance of her claim from that of her mother.
The Applicant is a citizen of Vietnam. She first arrived in Australia on 21 November 2013 and remained here until 15 February 2014. Her movement record[49] shows that she made five trips to Australia until she was granted a subclass 100 (partner) visa on 26 April 2018 as a dependent of her mother. [That visa appears to remain operational until 26 April 2023 after which time the Applicant would be required to apply for a Return Resident visa if she wished to travel outside the country.] During one of those periods the Applicant spent three months enrolled at the Elsternwick Primary School.[50]
[49] Respondent’s Tender Bundle at [1]-[2].
[50] Statement of Ms Suong Vo dated 24 October 2021.
The Applicant left Australia on 22 December 2018 and remained offshore until 18 January 2022 when she returned to Australia and has remained resident here since that date.
In the first instance, Ms Pham’s application was made before she turned 18 years of age and hence her application was initially considered under section 21(5) of the Act which provides:
5A 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.
The Respondent accepts that the Applicant meets these requirements.[51] Although the Applicant is now aged 18, the Tribunal must proceed on the basis that the application was made while she was still 17 years of age (s. 21(5)(a)) and that she is a permanent resident[52] at the time of the substantive decision being made on her application (s. 21(5((b)(ii)).
[51] Respondent’s Statement of Fact, Issues and Contentions (SFIC) at [16].
[52] The permanent residency requirement was introduced via the Australian Citizenship Amendment (Citizenship test Review and Other Matters) Act 2009 (Cth) prior to which any person under the age of 18 could make an application. Since then permanent residency has to be granted before a person under the age of 18 may make an application.
There is one significant change in the way in which applications are considered in circumstances where an applicant applied at the age of 15 to 17 years but the decision is rendered once they have turned 18.
The CPI[53] states in relation to the s. 24(2) discretion:
When considering the use of this discretion a best interest of the child assessment must be undertaken prior to a decision being made. A best interest of the child assessment is not required if the applicant has turned 18 at the time of the decision.
[53] CPI 4: Australian Citizenship by Conferral – Person under 18. Section 10.1.
The positive finding under s 21(5) then enlivens the provisions of section 24(2) which gives the Minister (or decision-maker) power to withhold a grant of citizenship:
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).
This is clearly a discretionary power (“may refuse”) unlike those in sections 24(3), (4A), (5) and (6) where the Minister is bound to refuse certain applications.
The Minister has exercised this discretion to refuse Ms Pham’s application on the same grounds as those identified in the case of her mother, namely:
The respondent submits that the applicant does have an intention to continue to reside in Australia, nor does she have a close and continuing association with Australia, and the exemption under s24(2) of the Act applies.[54]
[54] Respondent’s Statement of Fact, Issues and Contentions (SFIC) at [24].
The Minister’s delegate based their refusal decision primarily on a finding that:
After considering your and your family’s circumstances, I am not satisfied that your family unit likely to reside in Australia in the immediate future. You may have an aspiration to reside in Australia; however there is no evidence to suggest that it will happen in the immediate future. Due to lack of substantive evidence, I am not satisfied that you likely to reside in Australia should the application be approved.[55]
[55] Tribunal documents (Pham T-docs) at [30].
It is thus evident that the Delegate’s decision was made largely contingent upon their assessment of the plans of the Applicant’s family. That decision was dated 22 June 2021, and, as is explained below has been rendered largely nugatory by subsequent events.
The Applicant is now an adult and, as a result, consideration of her application must stand on its own merits and not be made dependent upon any consideration of the position of other members of her family.
In relation to Ms Pham’s family the Tribunal notes that apart from her mother and Mr Hope the other members of her immediate family, namely her (biological) father and grandparents reside in Vietnam.[56]
[56] Applicant’s (Pham) Statement (dated 15 May 2022).
In her application to this Tribunal, the Applicant wrote:
The Department of Home Affairs has refused to approve my application to become an Australian citizen by conferral because they opine that I do not meet the residence requirements and are not likely to reside in Australia or do not maintain a close and continuing association with Australia. I do not agree with this conclusion on the evidence submitted. In addition, note that I will be moving back to Australia to study university and live permanently in Australia when I am 18 and independent (I turn 18 in September 2021). My parents have bought an apartment in Melbourne for me to live in and have also bought the flight ticket to come back to Australia in Feb 2022 when I am planning to start University in Melbourne. During my time in Singapore, I have prepared for my life in Australian when I move back (I study at the Australian International School, keep contact with my friends in Australia, keep updated of what is happening in Australia through the news, gather all information to apply for university in Melbourne when it is open to domestic students in August, choose courses that will help me to easily get a job in Australia.). I can provide all the evidence to prove my definite move back to Australia and my continuing association with Australia as mentioned above if required. Therefore, I do hope that I will be granted the Australian citizenship to fulfil my life commitment in Australia to be close to my parents who will be living there.[57]
[57] Pham T-docs at [5].
Ms Pham is currently residing and working in Australia. She lives in an apartment in the inner city in Melbourne which was purchased by her mother in June 2021, and where her mother and she resided during January 2022.
The Applicant moved to Singapore with her mother and step-father in December 2018 where she was enrolled in the Australian International School. On her return to Australia in 2022, she completed enrolment in a Bachelor of Arts degree at Melbourne University[58] which is a three-year degree, after which she apparently plans to study for a Masters in Psychology for a further two years.[59] Her fees for enrolment were paid by her parents.
[58] Applicant’s (Pham) Tender Bundle (6 April 202) (unpaginated).
[59] Applicant’s (Pham) Statement (dated 15 May 2022).
If the Applicant completes this five-year course of study, she would meet the requirements of the general residency provisions set out in section 22(1) – namely four years (lawful) residency and 12 months residency immediately prior to the date of application, provided that her permitted departures did not exceed those specified in sections 22 (1A) and (1B). She would then be eligible to apply for citizenship which could be granted provided that she satisfies the remaining requirements of section 21(2) in particular 21(2)(g) relating to the test of being of good character.
In the meantime it is evident that the Applicant is residing in Australia and has every intention of continuing to do so in order to complete her studies. There is nothing before the Tribunal to suggest to the contrary, nor to allow it to infer that the Applicant would not complete her studies.
The Respondent has raised the issue of the Applicant’s intentions once she completes her studies, it asserts in its SFIC (at 25.1):
“While the applicant has provided evidence that she is now undertaking studies at the University of Melbourne, no evidence has been provided that she will remain in Australia upon the conclusion of her studies. The applicant has provided no evidence of her plans after her studies are concluded.”
The Tribunal sees no reason why the Applicant should be required to do so. The inferences which the Respondent seeks to draw are entirely hypothetical.
It will be recalled that the original Delegate’s decision (supra) referred to the Applicant’s “aspiration to reside in Australia” and went on to assert that “there is no evidence to suggest that it will happen in the immediate future”. In reality, the aspiration has been fulfilled and the residency has occurred.
The Respondent then presses a point (SFIC at 25.2) which amounts to claiming that if the citizenship application of this Applicant’s mother (Ms Vo) were to be refused this would somehow act as a disincentive for the Applicant to remain in Australia. Again this is a hypothetical issue which would be rendered nugatory were the Applicant to complete five years of study in Australia and in any event, were the Applicant’s mother and step-father desirous of returning to Australia to live (say after the end of any extended two-year placement for Mr Hope in Vietnam[60]) they would be able to do so regardless of Ms Vo’s citizenship status as she already has Permanent Resident status and Mr Hope is an Australian citizen.
[60] As outlined in the Tribunal’s Determination re Suong Vo.
The Tribunal accepts that the Applicant not only has an intention to reside in Australia but an intention to continue to reside in Australia (section 21(2)(g)).
Apart from the reference to the best interest of the child assessment and prohibitions related to offences (s.24(6)), the CPIs contain no relevant guidance in relation to factors to be taken into account in the exercise of discretion under s 24(2). This was recognised in Minister for Home Affairs v G where the Full Federal Court said:
Further, the relevant eligibility category for present purposes, namely that set out in s 21(5), contains little by way of criteria.[61]
[61] Minister for Home Affairs v G [2019] FCAFC 79 at [64].
However significant guidance may be found in the Explanatory Memorandum to the Australian Citizenship Bill 2005 which eventually became the 2007 Act. Section 24(2) was part of the original Bill and the Explanatory Memorandum states:
Proposed subsection (2) provides that the Minister may refuse to approve the person becoming an Australian citizen, despite the person being eligible to be so approved.
The purpose of this subsection is to retain the existing discretion (under Section 13 of the old Act) of the Minister not to approve an application in certain cases.
This discretion has been in existence since the inception of the Act in 1948.
It has been a uniform feature of naturalisation legislation (i.e. citizenship by conferral) throughout the Commonwealth for over a century to give the Executive a wide discretion regarding the approval or refusal of citizenship applications. This is because Australian citizenship by application is a privilege and not a right. The new Act should continue to promote this understanding.
Persons who satisfy the eligibility criteria are generally approved to become citizens. However, it is conceivable that a person could meet the criteria but nevertheless it may not be in the public interest for that person to become an Australian citizen. An example may include a person whom the Australian community would consider as a person who incites hatred or religious intolerance. That person may not necessarily have been convicted of specific offences and may not necessarily fall strictly into the category of refusal on the basis of the good character requirement, but could be within this discretion.[62]
[62] Australian Citizenship Bill 2005, Explanatory Memorandum page 30.
Clearly the discretion was provided so that the Minister could withhold grants of citizenship where he/she was persuaded that there were sound public interest reasons to do so. The Tribunal, as the decision-maker in this instance, does not think it appropriate to import other tests not clearly specified in either the Act or even the CPI’s (bearing in mind their purely advisory status) to justify the exercise of this discretion against the Applicant.
The Tribunal has noted in relation to the application by this Applicant’s mother that her case has faltered on the operation of s. 22(9) of the Act requiring, in her circumstances, demonstration that she had a “close and continuing association” with Australia during the relevant period. Section 22(9) applies to the spouse or de facto partner, or serving spouse/de facto partner, of an Australian citizen. The section imposes no such burden on this Applicant.
The Applicant herself has raised a question of some “hardship” being visited upon her in terms of her inability to seek assistance with student loans to pay for her university course, given her status as a non-citizen.[63]
[63] Applicant’s (Pham) Statement dated 4 April 2022.
The relevant CPI[64] when listing “common scenarios” which might be advanced by an applicant specifically recognises that they might claim that:
[t]hey cannot access educational opportunities until they become an Australian citizen.
[64] CPI 12: Assessing significant hardship, disadvantage or detriment for the Purposes of Australian Citizenship at 3.2
Consideration of such potential hardship was approved as a relevant criterion for assessment by the Full Federal Court in G[65].
[65] Minister for Home Affairs v G [2019] FCAFC 79 at [66].
However, the Tribunal would distinguish between accessing an opportunity, such as the ability to enrol in a course, from the question of accessing financial support to pay for such a course. The Tribunal has dealt with such claims on several previous occasions. In Park it said:
I accept that Ms Park’s parents are in a very difficult financial situation. They have made considerable sacrifices in the interest of her education. However, the fact that it would be financially advantageous for her to acquire citizenship — because she would be eligible for a secondary school scholarship and would not have to pay higher university fees as an overseas student — is not very unusual or exceptional and it is not a reason to confer citizenship.[66]
[66] Park v Minister for Immigration and Citizenship [2010] AATSA 886 at [29].
It repeated this line of reasoning in Chirenda
Mr Chirenda points to his ineligibility for a university HECS-HELP loan as a form of hardship that he will suffer if he is refused Australian citizenship. The fact that it would be financially advantageous if Mr Chirenda could acquire Australian citizenship, including because he would not have to pay the higher university fees applicable to overseas (non-citizen) students, is not unusual or exceptional amongst applicants for Australian citizenship and is not, by itself, a reason to confer citizenship.[67]
[67] Chirenda v Minister for Immigration and Border Protection [2015] AATA 64 at [38].
The Tribunal sees no basis upon which to depart from these Tribunal precedents and does not find that any refusal of citizenship would impose a degree of hardship of sufficient weight as to form the basis for setting aside any capacity to exercise discretion under s 24(2). Nor can the Applicant rely upon establishing that this hardship is a material factor for consideration under some “best interest of the child” test (based upon consideration of Article 3.1 of the Convention of the Rights of the Child[68]) which ceased to have applicability to this applicant when she turned 18 years of age on 12 September 2021.
[68] United Nations Convention on the Rights of the Child: adopted by the United Nations General Assembly November 1989, coming into force on 2 September 1990 and ratified by Australia in December 1990.
Findings
The Applicant meets the eligibility criteria of s 21(5) of the Act.
The Applicant is likely to reside or to continue to reside in Australia as required under s 21(2)(g) of the Act and hence satisfies that statutory requirement.
There is no statutory, public policy or other basis upon which the discretion provided in s 24(2) of the Act should be exercised against the Applicant.
DECISION
The decision under review in respect of Ms Nhi Thao Pham in matter number 2021/4208 is set aside and the matter remitted to the Respondent with a direction that the Minister’s discretion in section 24(2) of the Act not be exercised adversely to the Applicant.
I certify that the preceding 102 (one hundred and two) paragraphs are a true copy of the reasons for the decision herein of Chris Puplick AM, Senior Member
...............................[SGD].........................................
Associate
Dated: 09 August 2022
Date(s) of hearing: 21 July 2022 Applicant: In person Solicitors for the Joined Party: Ms K Gawidziel, AUSTRALIAN GOVERNMENT SOLICITOR
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