Weldemichael and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Citizenship) - [2022] AATA 83

Weldemichael and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Citizenship) [2022] AATA 83 (27 January 2022)
Division:GENERAL DIVISION
File Numbers:2020/4256 and 2020/4965
Re:Mrs Abrehet Weldemichael
FIRST APPLICANT
Mr Aradom Siyum
SECOND APPLICANT
Mr Sibhat Siyum
THIRD APPLICANT

Minister for Immigration, Citizenship, Migrant Services and Multicultural AffairsAnd
Date:27 January 2022
Place:Brisbane

DECISION
Pursuant to section 43(1)(a) of the Administrative Appeals Tribunal Act 1975 (Cth), the Tribunal affirms the decision of the delegate of the Respondent, dated 18 June 2020, to refuse to grant the First, Second and Third Applicants’ applications for Australian citizenship by conferral.
................[SGD]..........................
Senior Member B. Pola
Catchwords
CITIZENSHIP – refusal of Australian citizenship by conferral – applicant had not passed Citizenship test – claimed medical condition – no substantial impairment – eligibility of persons aged under 18 – exercise of discretion to refuse citizenship approval of other minor applicants – Citizenship Policy – children under the age of eighteen – assessment of applicants in their own right – United Nations Convention on the Rights of the Child – best interests of the children – no significant hardship or disadvantage – reviewable decisions affirmed
Legislation
Australian Citizenship Act 2007 (Cth)
Cases
Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634
Han and Minister for Home Affairs [2019] AATA 3325
Reynolds and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Citizenship) [2021] AATA 1146
Secondary Materials
Citizenship Policy
Citizenship Procedural Instructions
Revised Citizenship Procedural Instructions
United Nations Convention of the Rights of the Child
REASONS FOR DECISION
Senior Member B. Pola
27 January 2022
BACKGROUND

On 31 October 2017, the First Applicant (2020/4256) in this matter, Mrs Abrehet Weldemichael, applied for citizenship pursuant to section 21(4) of the Australian Citizenship Act 2007 (Cth) (herein referred to as the ‘Citizenship Act’). The Second and Third Applicants in this matter (2020/4965), Mr Aradom Siyum and Mr Sibhat Siyum respectively, are the minor sons of the First Applicant. The First Applicant applied for citizenship for the Second and Third Applicants as part of her own application[1].
On 18 June 2020, a delegate of the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (herein referred to as the ‘Respondent’) decided to refuse all Applicants’ applications for Australian citizenship on the basis that: (1) the First Applicant did not pass the Australian citizenship test, pursuant to section 21(2A) of the Citizenship Act[1], and therefore refused to grant citizenship by conferral pursuant to section 24(1) of the Citizenship Act; and (2) the Second and Third Applicants’ applications for Australian citizenship were refused on the basis the Respondent did not deem it appropriate to exercise discretion, pursuant to section 24(2) of the Citizenship Act[2].
[1] Exhibit R1, Section 37 T Documents, T2, pages 16 to 17.
[2] Ibid, pages 16 to 20.
On 9 July 2020, the First Applicant applied to the Administrative Appeals Tribunal (herein referred to as the ‘Tribunal’) for review of the decision of the Respondent[3].
[3] Ibid, T1, pages 7 to 12.
The hearing was held via video conference in Brisbane on 29 November 2021. The First Applicant was self-represented and had a support person present who was her eldest son, Mr Amanuel Siyum. The First Applicant represented her two minor sons, the Second and Third Applicants. The Applicant’s support person initially sought to give evidence in support of his mother, but when provided with the opportunity to do so, declined. Additionally, the Applicant was assisted by the services of a Certified NAATI Provisional interpreter provided by the Tribunal, who spoke Tigrinian (Tigrinya). The Respondent was represented by Ms Isla Tobin of Clayton Utz. The Tribunal has considered all oral submissions in addition to submitted evidence, as outlined in the Exhibit Register in Annexure 1 of these reasons.
JURISDICTION
Relevantly, section 52 of the Citizenship Act stipulates the following in regard to decisions made under the Act, with respect to when a person may make an application for review of those decisions to the Tribunal:
… 52 Review of decisions
(1)An application may be made to the Administrative Appeals Tribunal for review of the following decisions:
(a)a decision under section 17 to refuse to approve a person becoming an Australian citizen;
(aa)a decision under section 19D to refuse to approve a person becoming an Australian citizen;
(b)a decision under section 24 to refuse to approve a person becoming an Australian citizen;
(c)a decision under section 25 to cancel an approval given to a person under section 24;
(d)a decision under section 30 to refuse to approve a person becoming an Australian citizen again;
(e)a decision under section 33 to refuse to approve a person renouncing his or her Australian citizenship, except a refusal because of the operation of subsection 33(5) (about war);
(f)a decision under section 34 or subsection 36(1) to revoke a person’s Australian citizenship.
Citizenship by conferral decision
(2)However, if:
(a)the Minister makes a decision under section 24 to refuse to approve a person becoming an Australian citizen; and
(b)the Minister’s reasons for the decision did not refer to the eligibility ground in subsection 21(8) (about statelessness); and
(c) the person was aged 18 or over at the time the person made the application to become an Australian citizen;
person (the applicant) cannot apply for review of that decision unless the applicant is a permanent resident.
(3) For the purposes of the Administrative Appeals Tribunal reviewing a decision of a kind referred to in paragraph (1)(b):
(a)the Tribunal must not exercise the power under subsection 22A(1A) or 22B(1A); and
(b)the Tribunal must not review any exercise of the power or any failure to exercise the power…
[Tribunal bolding for emphasis]
In accordance with section 52(1)(b) of the Citizenship Act, the Tribunal has jurisdiction to review the decision of the Respondent regarding the Applicant’s application for Australian citizenship, made on 9 July 2021 (noting that the application was made to this Tribunal within the prescribed 28-day period following the decision made by the Respondent on 18 June 2020).
ISSUES
The issues before the Tribunal for review are:
(a)In relation to the First Applicant, whether she was eligible to become an Australian citizen, pursuant to section 21(4) of the Citizenship Act?
(b)In relation to the Second and Third Applicants, whether it is appropriate for the Tribunal to exercise discretion, pursuant to section 24(2) of the Citizenship Act, to refuse to approve their applications?
RELEVANT LEGISLATIVE FRAMEWORK
Part 2, Division 2 of the Citizenship Act deals with the acquisition of Australian citizenship by application, with section 21(1) providing that a person may make an application to the Minister to become an Australian citizen, observing that section 24(1) provides:
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.
Therefore, the Minister must make a decision to grant, or not grant an application pursuant to section 24(1) of the Citizenship Act. Most notably, this section does not provide the Minister with the power to defer such decision-making.
Relevant to the present application, section 24(1A) of the Citizenship Act provides that, “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)”. Relevantly, section 21 of the Citizenship Act provides:
21 Application and eligibility for citizenship
(1) A person may make an application to the Minister to become an Australian citizen.
(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.
[Tribunal underline for emphasis]
The Tribunal observes that sections 21(2)(d), (e), and (f) of the Citizenship Act are taken to be satisfied if and only if the Minister is satisfied that the following apply, with respect to section 21(2A) of the Citizenship Act:
(2A)Paragraphs (2)(d), (e) and (f) are taken to be satisfied if and only if the Minister is satisfied that the following apply:
(a)the person has sat a test approved in a determination under section 23A;
(b)the person was eligible to sit that test (worked out in accordance with that determination);
(c)the person started that test within the period worked out in accordance with that determination and completed that test within the period (the relevant test period) worked out in accordance with that determination; and
(d)the person successfully completed that test (worked out in accordance with that determination) within the relevant test period.
[Tribunal underline for emphasis]
Therefore, for an application for citizenship under section 21(2) of the Citizenship Act to be successful, the Applicant must successfully complete the test, pursuant to section 21(2A)(d).
The Tribunal observes that in order to grant the First Applicant’s citizenship application, she must satisfy all requirements in section 21(2) of the Citizenship Act. This means that she also must, in turn, satisfy section 21(2A)(d) by successfully completing the citizenship test.
The Tribunal observes section 21(4) of the Citizenship Act which provides:
Person aged 60 or over or has hearing, speech or sight impairment
(4)A person is eligible to become an Australian citizen if the Minister is satisfied that the person:
(a)is:
(i)     aged 60 or over at the time the person made the application; or
(ii)     aged 18 or over at the time the person made the application and is suffering from a permanent loss or substantial impairment of hearing, speech or sight at that time; 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)understands the nature of the application at the time the person made the application; and
(d)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
(e)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
(f)is of good character at the time of the Minister’s decision on the application.
The Tribunal notes the Department has issued a ‘Citizenship Policy’ document, and ‘Citizenship Procedural Instructions’, as well as several ‘Revised Citizenship Procedural Instructions’ (with varying dates of effect), all of which seek to provide additional guidance for decision makers in exercising discretion in making determinations under the Citizenship Act.
Whilst the Tribunal is not bound to strictly apply the Citizenship Policy document, or the Revised Procedural Instructions issued by the Department, the Tribunal refers to His Honour Brennan J in the decision of Drake and Minister for Immigration and Ethnic Affairs (No 2)[4], where he stated the following practice in relation to the Tribunal applying Ministerial policy:
In my view, the Tribunal, being entitled to determine its own practice in respect of the part which Ministerial policy plays in the making of Tribunal decisions, should adopt the following practice:
When the Tribunal is reviewing the exercise of a discretionary power reposed in a Minister, and the Minister has adopted a general policy to guide him in the exercise of the power, the Tribunal will ordinarily apply that policy in reviewing the decision, unless the policy is unlawful or unless its application tends to produce an unjust decision in the circumstances of the particular case. Where the policy would ordinarily be applied, an argument against the policy itself or against its application in the particular case will be considered, but cogent reasons will have to be shown against its application, especially if the policy is shown to have been exposed to Parliamentary scrutiny.
The general practice of the Tribunal will not preclude the Tribunal from making appropriate observations on Ministerial policy, and thus contributing the benefit of its experience to the growth or modification of general policy; but the practice is intended to leave to the Minister the political responsibility for broad policy, to permit the Tribunal to function as an adjudicative tribunal rather than as a political policy-maker, and to facilitate the making of consistent decisions in the exercise of the same discretionary power.
The general practice will require the Tribunal to determine whether the policy is lawful, not in order to supervise the exercise by the Minister of his discretion, but in order to determine whether the policy is appropriate for application by the Tribunal in making its own decision on review.
[Tribunal bold for emphasis]
[4] [1979] AATA 179; (1979) 2 ALD 634.
‘CPI 3 – Australian Citizenship by Conferral – 60 or over or impairment’ (herein referred to as ‘CPI 3’) in the ‘Revised Citizenship Procedural Instructions’ (with a date of effect from 10 April 2019) states the following in relation to determining whether the First Applicant had a, “substantial impairment”[5]:
[5]     Exhibit R1, Section 37 T Documents, T3, page 77.
3.5. Assessing permanent loss or substantial impairment of hearing, speech or sight
Neither ‘permanent loss’ nor ‘substantial impairment’ are defined in the Act and should be given their common meaning. The Macquarie Dictionary Online relevantly defines:
·     permanent’ as ‘lasting or intended to last indefinitely; remaining unchanged; not temporary; enduring; abiding’;
·     ‘loss’ as ‘a being deprived of or coming to be without something that one has had’;
·     ‘substantial’ as ‘of ample or considerable amount, quantity, size, etc’.
The Macquarie Dictionary Online does not define ‘impairment’. ‘Impair’ is defined as ‘to make worse’. The Cambridge Dictionary defines ‘impairment’ as ‘the act of spoiling something or making it weaker so that it is less effective’ and ‘deterioration in the functioning of a body part, organ, or system that can be temporary or permanent and can result from injury or disease’.
An applicant need only suffer from one loss or impairment of a type set out under subparagraph 21(4)(a)(ii) of the Act. If a decision-maker is satisfied that the applicant suffers from one such loss or impairment, it is not necessary to assess the evidence concerning any other impairment the applicant may claim to have. However, any additional impairment may be relevant to arrangements for taking the pledge (see section 3.7 of this Instruction).
CPI 3, goes on to define the corroborative documentation required to substantiate permanent loss, or substantial impairment of sight:
Documentation from a specialist ophthalmologist who is a fellow of Royal Australian and New Zealand College of Ophthalmologists (RANZCO), regardless of when it was issued, in addition to a recent report from an optometrist or orthoptist, is likely to be sufficient evidence of permanent loss of or substantial impairment to sight.
·     Reports from an ophthalmologist should include:
·     the full name and date of birth of the applicant;
·     the degree of loss of sight and whether it is a permanent loss or a substantial impairment;
·     the length of time the person has suffered the loss or impairment;
·     what aids are required by the applicant to function in the community and whether they have the ability to function
·     without aids in certain circumstances;
·     the ophthalmologist or other specialist’s full name, qualifications and registration number; and
·     the date the report was provided.
…
In addition, applicants may also provide supporting documents, such as:
·     Centrelink pensioner concession card that displays ‘DSP Blind’ to differentiate from other Disability Support Pensions (DSP).
·     There are state/territory based programs that use the same criteria of legal blindness in determining substantial vision impairment, such as public transport travel passes, taxi subsidy schemes and companion card programs. Whether these cards identify the nature of the card holder’s eligibility is dependent on the particular program in question.
o    For example, the Victorian Travel Pass issued by Public Transport Victoria does identify the card holder as ‘vision impaired’, however the Multi-Purpose Taxi Program taxi subsidy card issued by the Victorian Taxi Commission does not and would not constitute acceptable evidence.
Additional legislative and policy considerations relevant to Second and Third Applicants
The Tribunal observes the Second and Third Applicants were both under the age of eighteen years at the time the application for citizenship was made by the First Applicant. As such, the Tribunal, in reviewing the decision before it, has treated both the Second and Third Applicants as minors who were both fifteen years of age or younger[6].
[6] Reynolds and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Citizenship) [2021] AATA 1146 at [9].
With respect to persons aged under eighteen years of age, section 21(5) of the Citizenship Act provides:
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.
The Tribunal observes that section 24(2) of the Citizenship Act provides the Minister with discretion to refuse to approve a person becoming an Australian citizen despite that person being eligible to become an Australian citizen (relevantly), pursuant to section 21(5) of the Citizenship Act.
With respect to exercising this discretion, there are a number of ‘Citizenship Procedural Instructions’ which provide guidance for decision makers. Specifically, ‘CPI 4 – Australian Citizenship by Conferral – Person under 18’ (herein referred to as ‘CPI 4’), which has been reissued with a date of effect from 17 May 2020, states the following at paragraph 7[7]:
In order to uphold and maintain the integrity of the citizenship program, delegates must have due regard to all the circumstances of the family unit, when considering individual applications made by or on behalf of a child aged 15 years and under. This also applies where a child's application is being considered as an individual application because their responsible parent's application has been refused of their parent has died.
The following factors are relevant in making a decision under subsection 24(2) of the Act. Decision-makers are to consider whether the child is:
…
·     Usually resident in Australia and living with a responsible parent who is an Australian citizen and who consents to the application;
·     Usually resident in Australia and living with a responsible parent, who is a permanent resident who consents to the application;
·     Usually resident in Australia and living with a responsible parent, who is not an Australian citizen and who consents to the application;
·     Usually resident overseas and living with a responsible parent, who is an Australian citizen and who consents to the application; or
·     An unaccompanied humanitarian minor who falls under the Minister’s guardianship.
[7]    Exhibit R3, Section 37 T Documents, T3, page 130. The Tribunal observes that this ‘Citizenship Procedural Instruction’ postdates the ‘Citizenship Procedural Instruction’ referred to by the Respondent in Exhibit R5, Respondent Statement of Facts, Issues and Contentions – Annexure A, section 7, which has a date of effect of 2 April 2020.

The Tribunal observes that paragraph 6.3 of CPI 4 provides that in circumstances where the minors parent(s)’ application for citizenship is refused, the minor(s)’ applications should be considered as an individual application against the policy guidelines, referred to and transposed by the Tribunal in paragraph 7 of CPI 4.
Paragraph 11.1 of CPI 4 provides the following with respect to exercising discretion in circumstances where the minor(s)’ parent(s) have had their application for citizenship refused[8]:
[8] Ibid, pages 132 to 133.
10.1. Subsection 24(2) of the Act – discretion to refuse despite being eligible
… a delegate may refuse to approve an application for conferral of Australian citizenship, even though the person satisfied eligibility criteria. In exercising that discretion, delegates must give due consideration to the policy set out in the Instruction, noting that policy must not be applied inflexibly.
When considering the use of this discretion, a best interest of the child assessment must be undertaken prior to a decision being made…
The best interests of the child is a primary consideration but it is not the only consideration that must be taken into account. A best interest of a child assessment cannot override a legal requirement sent out in the Act, however, the exercise of a discretionary power such as subsection 24(2), must take into account of the best interests of the child as a primary consideration…
The Tribunal further observes that paragraph 3.2 of CPI 13 – Best interests of the child assessments (herein referred to as ‘CPI 13’) (with a date of effect of 10 April 2019) states the following with respect to the definition of, “best interests of the child”[9]:
[9]    Exhibit R5, Respondent Statement of Facts, Issues and Contentions – Annexure C, pages 2 to 3.
3.2. Definition of ‘best interests of the child’
‘Child’, when used in this Instruction, means a person who has not turned 18 years of age.
The phrase ‘best interests of the child’ is not defined, but is informed, in part, by the principles in the UNCRC[10]. 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;
·     a 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.
[10]   The United Nations Convention of the Rights of the Child (UNCRC, or the Convention), was entered into
force in Australia on 16 January 1991, the result of which means the Commonwealth Government and
authorities are bound to give effect to its provisions.
The Tribunal observes that paragraph 3.4 of CPI 13 goes on to state the following with respect to other relevant considerations in this regard:
3.4. Factors to take into consideration
Decision-makers may refer to and be guided by the articles set out in the UNCRC, which can be found at < aspx>. Those factors raised by the applicant or a third party, or evident and relevant on the available material, must be considered. Decision-makers are not required to request further material for consideration regarding the best interests of a child but may do so if appropriate for the purposes of giving proper consideration to the matter.
Although the UNCRC provides that minors are entitled to access public education, public health services and social welfare, and to not be subject to economic exploitation, these generally will not be an issue when deciding citizenship applications. This is because:
· there is no discretionary power to refuse citizenship applications under Division 2, Subdivisions A (Descent) and AA (Hague Convention or bilateral arrangement adoption); and
· most applicants under Division 2 Subdivision B (Conferral) are permanent residents, who have appropriate access to education, health and social welfare services, and when in Australia are covered by the same labour laws as Australian citizens.
The Tribunal observes that paragraph 3.2 of ‘CPI 12 – Assessing significant hardship, disadvantage or detriment for the purposes of Australian citizenship’ (herein referred to as ‘CPI 12’) (with a date of effect of 10 April 2019) states the following with respect to assessing significant hardship, disadvantage, or detriment[11]:
[11]    Exhibit R5, Respondent Statement of Facts, Issues and Contentions – Annexure B, page 3.
3.2. Meaning of ‘significant hardship or disadvantage’ and ‘significant hardship or detriment’
The words ‘significant’, ‘hardship’, ‘disadvantage’ and ‘detriment’ are not defined in the Act.
The Macquarie Dictionary Online provides the following definitions:
significant important; of consequence.
hardship a condition that bears hard upon one; severe toil, trial, oppression, or need; an instance of this; something hard to bear.
disadvantage absence or deprivation of advantage; any unfavourable circumstance or condition.
injury to interest, reputation, credit, profit etc.; loss; to subject to disadvantage.
detriment loss, damage or injury; a cause of loss or damage.
Assessing significant hardship or disadvantage/detriment
The hardship or disadvantage/detriment must be significant and of consequence to the person.
Depending on the provision being considered, applicants need to demonstrate they:
·     would suffer the significant hardship or disadvantage if the period of temporary residence in Australia is not treated as a period during which the person was present in Australia as a permanent resident; (for example, it may then be very difficult or impossible - and put the person to considerable hardship - for the person to take the steps to meet the permanent residency requirement ordinarily required for obtaining Australian citizenship); or
·     renounce their Australian citizenship to avoid suffering significant hardship or detriment.
CONSIDERATION
First Applicant (2020/4256)
Evidence before the Tribunal indicates the First Applicant did not successfully complete the citizenship test, a fact which she confirmed when questioned during cross-examination[12]. The Tribunal observes the First Applicant did not dispute the Department of Home Affairs records with respect to her attempts to sit the citizenship test[13]:
The department has invited you to attend citizenship test on the following occasions:
- 22 October 2018 – 1 test attempt (Failed)
- 23 November 2018 – Unable to sit test as not all documents were provided. At this appointment you showed a letter from an Optometrist explaining you have a deteriorating eye condition. It was explained that you are booked for an assisted test and a new test appointment would be made in which we will read the questions to you.
- 18 December 2018 – At this appointment you refused to sit the assisted test. You advised (via your son, Aman) that you would like to be considered under Impairment (Sight).
[12] Transcript (29 November 2021), page 12.
[13] Exhibit R1, Section 37 T Documents, T2, pages 16 to 17.
The First Applicant’s main contention with respect to requiring assistance in sitting the citizenship test was due to her sight impairment; namely, that her eyes tear up, making it difficult for her to read with glasses as they fog up[14].
[14] Transcript (29 November 2021), page 14, lines 21 to 24; page 15, lines 6 to 9.
The Tribunal observes that the First Applicant submitted a letter from her ophthalmologist, Dr Ozzie Rumbach (M.B. B.S. B.D. Sc., FRANZCO, M.B.A, G. Dip. Med (Ref) U. Syd), dated 4 February 2021, which states[15]:
… on examination her VA without glasses is R 6/90, L 6/18. With glasses it could not be improved on in the right eye but her left eye came down to 6/9, which is quite good vision. Ocular examination showed a mild cataract in the right eye and an excellent result I the left cataract operation. Retinal examination which was confirmed on OCT failed to disclose any retinal pathology that could be contributing to her symptoms. I couldn’t find a cause for amblyopia in the right eye.
I had to explain to her that there was no pathology that I could find to account for her symptoms…
[15] Exhibit A1. The Tribunal observes the letter from Dr Rumbach is consistent with the corroborative evidence
deemed appropriate in paragraph 3.5 of CPI 3 – Australian Citizenship by Conferral – 60 or over or impairment, as transposed in earlier reasons of this decision.
The Tribunal has a copy of the Applicant’s current Queensland Drivers Licence, which does not list any restrictions with respect to the Applicant’s conditions of driving[16]. The Applicant confirmed during cross-examination that she does currently drive but submits that her problem with sitting the citizenship test was reading the questions, which, given her stated eye condition, prevented her from being able to read[17].
[16] Exhibit R1, Section 37 T Documents, T2, page 154.
[17] Transcript (29 November 2021), page 14, lines 7 to 24.
With respect to whether the Applicant suffers a substantial impairment within the meaning implied in section 21(4)(a)(ii) of the Citizenship Act and the relevant considerations in the CPI 3, it is the Tribunal’s view that after having regard to the corroborative evidence of ophthalmologist Dr Rumbach, the First Applicant’s sight impairment cannot be considered a substantial impairment. This is because the evidence of Dr Rumbach is that the Applicant’s sight had been corrected with glasses, and that the Applicant had, “…quite good vision”[18]. Further, Dr Rumbach explicitly stated in his letter of 2 February 2021 that he could not find any medical reason to account for the First Applicant’s self-reported symptoms.
[18] Exhibit A1, Doctor Letter from Dr Ozzie Rumbach.
The Tribunal is satisfied the First Applicant’s sight impairment does not satisfy the requirements of section 21(4)(a)(ii) of the Citizenship Act, having regard to the relevant policy considerations. In view of this, the Tribunal finds that the First Applicant does not satisfy section 21(4) of the Citizenship Act. It is the Tribunal’s view that the Respondent was correct in refusing her application for Australian citizenship.
Second and Third Applicants (2020/4965)
Given the Tribunal has determined that the First Applicant did not satisfy section 21(4) of the Citizenship Act and that her application for Australian citizenship ought be refused, the Tribunal is required to consider whether the Minister’s discretion in section 24(2) of the Citizenship Act ought be enlivened to refuse to approve the relevant minor children of the First Applicant (that is, the Second and Third Applicants) from becoming Australian citizens, despite them being eligible to become Australian citizens under section 21(5) of the Citizenship Act[19].
[19] The Tribunal notes the eligibility of the Second and Third Applicant to become Australian citizens is not
disputed by the Respondent. See Exhibit R5, Updated Statement of Facts, Issues and Contentions, page 13, paragraph 38.
The Respondent has contended that there are no cogent reasons to depart from the relevant policy considerations, and the Tribunal ought to refuse the Second and Third Applicants’ applications for Australian citizenship[20].
[20] Exhibit R5, Updated Statement of Facts, Issues and Contentions, page 13, paragraph 39.
The Tribunal observes paragraph 7.1 of CPI 4 states that decision makers ought to consider the application of any relevant minor children individually, in circumstances where a decision had been made to refuse their responsible parent's application.
As transposed in earlier reasons, paragraph 10.1 of CPI 4 provides guidance with respect to exercising discretion in circumstances where the relevant minor(s) parent(s) have had their application for citizenship refused. This policy guidance states that decision makers ought to conduct an assessment of the best interests of the relevant child prior to a decision being taken where this discretion is applied.
This requires the decision maker to consider CPI 13. The Tribunal has, in earlier reasons, transposed relevant excerpts from the UNCRC contained within this Citizenship Procedural Instruction, which compels decision makers to consider the best interests of the child, in addition to other relevant legislative or policy requirements.
With respect to the relevant principles outlined in paragraph 3.2 of CPI 13, as they apply to the individual interests of the Second and Third Applicants, the Tribunal observes the following:
(a)there is no evidence before the Tribunal of the personal views of either the Second, or Third Applicant;
(b)in circumstances where the Second and Third Applicant’s Australian citizenship applications were refused, they both continue to be offered relevant protections from Australian laws as they are permanent residents (on a visa), and receive access to social and economic supports, including education;
(c)both the Second and Third Applicant’s arrived in Australia just over seven years ago and have since integrated into the Australian community. The Tribunal observes that should a decision be taken to refuse their Australian citizenship applications, they would be able to continue living in Australia on their current visas; and
(d)with respect to the remaining provisions, there is no corroborative evidence before the Tribunal to suggest that, in circumstances where a decision is taken to refuse to grant Australian citizenship, the listed remaining factors would be present.
The Tribunal observes that one of the UNCRC principles referred to in CPI 13, is that, “families should stay together, as far as possible”.
In this regard, the Tribunal is of the view that it is not in the best interests of the Second or Third Applicant to have a diverging citizenship status to that of the First Applicant (their primary caregiver), in circumstances where the Tribunal has found that the First Applicant does not satisfy section 21(4) of the Citizenship Act, and her Australian citizenship application ought to be refused.
The Tribunal refers to an earlier decision in Han and Minister for Home Affairs[21], where the Tribunal found that it is not in the best interests for a child to be granted citizenship which results in a departure from the citizenship status of the parent:
… The Tribunal is persuaded that it is not in the best interests of the child to be in a situation where his citizenship and that of his parents are not congruent while the Applicant is still at such a young age. There would be, under such circumstances, the real possibility that the family unit could be split or severed. The Tribunal accepts that this is a hypothetical proposition, but difficulties with potential visa non-renewal, cancellation or revocation in relation to the Applicant’s parents may occur and give rise to the possibility of them not being able to remain in or return to Australia. Were the Applicant to be an Australian citizen, such a right could not be denied to him…
[21] [2019] AATA 3325 at [54].
An additional consideration relates to whether the Second or Third Applicant would suffer any significant hardship or disadvantage if they did not become Australian citizens, having regard to CPI 12. The Tribunal has not been presented with any evidence to suggest that either the Second, or Third Applicant would suffer any significant hardship or disadvantage if they did not become Australian citizens.
Summary
The Tribunal has found First Applicant’s claimed sight impairment did not satisfy the requirements of section 21(4)(a)(ii) of the Citizenship Act (guided by relevant policy considerations, as outlined in these reasons); and in view of this, the First Applicant does not satisfy section 21(4) of the Citizenship Act.
The Tribunal is also of the view that both the Second and Third Applicants’ applications for Australian citizenship ought to be refused, pursuant to section 24(2) of the Citizenship Act, as policy considerations (detailed in these reasons) favour the exercise of Ministerial discretion in circumstances where the citizenship status of the Second and Third Applicants would diverge from that of their primary caregiver, the First Applicant.
DECISION
Pursuant to section 43(1)(a) of the Administrative Appeals Tribunal Act 1975 (Cth), the Tribunal affirms the decision of the delegate of the Respondent, dated 18 June 2020, to refuse to grant the First, Second and Third Applicants’ applications for Australian citizenship by conferral.
I certify that the preceding 46 (forty-six) paragraphs are a true copy of the reasons for the decision herein of Senior Member B. Pola
………[SGD].………………
Associate
Dated: 27 January 2022
Date of Hearing:  29 November 2021
Applicant:  Mrs Abrehet Weldemichael (Self-represented)
Solicitor for Respondent:       Ms Isla Tobin (Clayton Utz)
Exhibit Register – Annexure 1

Exhibit Number	Description of Exhibit	Party	Date of Document	Date of Receipt
R1	Section 37 T Documents (2020/4256) (pages 1 to 196)	R	–	16 November 2020
R2	Supplementary Section 37 T Documents (2020/4256) (pages 197 to 200)	R	–	15 December 2020
R3	Section 37 T Documents (2020/4965) (pages 1 to 178)	R	–	16 November 2020
R4	Supplementary Section 37 T Documents (2020/4965) (pages 179 to 182)	R	–	15 December 2020
R5	Respondent’s Statement of Facts, Issues and Contentions (pages 1 to 17) Annexure A (pages 1 to 21) Annexure B (pages 1 to 6) Annexure C (pages 1 to 6) [Replaced Statement of Facts, Issues and Contentions originally filed 9 August 2021]	R	15 November 2021	15 November 2021
A1	Doctor Letter from Dr Ozzie Rumbach	A	4 February 2021	16 March 2021