WXNR and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Citizenship)

WXNR and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Citizenship) [2021] AATA 3053 (26 August 2021)
Division:GENERAL DIVISION
File Number(s): 2020/8260, 2020/8261
Re:WXNR
FIRST APPLICANT

Re:CQGG
SECOND APPLICANT

AndMinister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
RESPONDENT

DECISION
Tribunal:Senior Member D. J. Morris
Date:26 August 2021
Place:Melbourne

Under section 43(1)(a) of the Administrative Appeals Tribunal Act 1975, the Tribunal affirms the decisions made in relation to both the First Applicant and the Second Applicant.
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Senior Member D. J. Morris

Catchwords
CITIZENSHIP – where applicants seek Australian citizenship by conferral – where applicants are minor siblings – where delegate of minister exercised discretion under section 24(2) of Australian Citizenship Act 2007 to refuse applicants becoming Australian citizens – consideration of relevant policy – consideration of age of the applicants – where applicants are aged under 18 – consideration of the Convention on the Rights of the Child – alternative pathways available to applicants – certain policy does not apply after person attains age of 16 – where applicants may be included in responsible parent’s future application for citizenship – whether an injustice or perverse result would result from applying policy in the specific circumstances – no injustice evident from consistent application of policy - decision under review is affirmed
Legislation
Administrative Appeals Tribunal Act 1975 (Cth), ss 25, 33A, 35, 37
Australian Citizenship Act 2007 (Cth), ss 21, 24, 52, 53
Nationality and Citizenship Act 1948 (Cth), Div 2, s 12(1)(b)
Cases
Cummeragunga Pty Ltd (in liq) v Aboriginal and Torres Strait Islander Commission [2004] FCA 1098; (2004) 139 FCR 73
Drake and Minister for Immigration and Ethnic Affairs, Re: (No 2) (1979) 2 ALD 634
DVRF and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs, Re: [2021] AATA 220
Minister for Home Affairs v G [2019] FCAFC 79
Secondary Materials
Convention on the Rights of the Child, opened for signature 20 November 1989, 1577 UNTS 3 (entered into force 2 September 1990)
Department of Home Affairs, Australian Citizenship [Policy Statement] - Citizenship Policy Instructions, Reissued 27 November 2020 (as revised in January 2021)
The Concise Oxford Dictionary of Current English; First Ed. (H. W. and F. G. Fowler); The Clarendon Press, Oxford (1911)
REASONS FOR DECISION
Senior Member D. J. Morris
26 August 2021
PROCEDURAL

This decision relates to two applications, lodged simultaneously by two minor children who are citizens of the Republic of India and permanent residents of Australia. They live in Australia with their father, who is an Indian citizen but also a permanent resident of Australia. The two applicants are twins, a brother and sister. They recently turned 13. As they have not reached the age of majority the Tribunal sought the views of the Applicants’ father, who is their representative, and the Respondent, as to whether they would object to orders being made under section 35 of the Administrative Appeals Tribunal Act 1975 (‘the AAT Act’) to withhold the publication of their names and substitute anonyms therefor. Neither party objected. The Tribunal made orders on 30 July 2021. The female Applicant will therefore be known by the anonym ‘WXNR’. Her brother will be known by the anonym ‘CQGG’. The name of their father will not be identified in this decision; he will instead be called ‘Mr AF’.
Neither Mr AF nor the Respondent made submissions that there were distinguishing circumstances which might make it desirable to deal with the applications individually, so they were considered together.
LEGISLATION
The Australian Citizenship Act 2007 (‘the Act’) provides, at section 21(1), that a person may make an application to the Minister to become an Australian citizen. Section 21(5) of the Act relevantly sets out that a person is eligible to become an Australian citizen if the Minister is satisfied that the person is aged under 18 at the time he or she made the application and is a permanent resident both at the time they made the application and at the time of the Minister’s decision on the application. Section 53 of the Act allows the Minister to, in writing, delegate to any person all of any of his or her powers under the Act or regulations made under the Act, except the power to approve a citizenship test.
Section 24(1) of the Act provides that if a person makes an application, the Minister (or his delegate) must in writing approve or refuse to approve the person becoming an Australian citizen. The previous legislation governing citizenship, the 1948 Nationality and Citizenship Act, had a provision allowing the Minister to defer a decision for a period of up to 12 months in relation to an application for citizenship. The current Act has no such provision allowing a decision to be deferred.
Section 24(1A) of the Act states:
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).
Section 24(2) of the Act states:
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).
In this matter Mr AF, is a ‘responsible parent’ of both Applicants within the meaning of that term in section 6 of the Act (see, for example, Exhibit R2, p 40).
BACKGROUND – First Applicant WXNR
WXNR was born in India in June 2008. In April 2013, she was granted a Skilled Independent (Subclass 189) visa. She currently holds a permanent Resident Return (subclass 155) visa granted in November 2018. On 21 September 2020, WXNR’s father applied for Australian citizenship by conferral on her behalf.
The delegate was satisfied that WXNR was aged under 18 at the time of the application (section 21(5)(a) of the Act). The delegate was further satisfied that WXNR was a permanent resident at the time of the application and at the time of the decision on the application.
BACKGROUND – Second Applicant CQGG
CQGG was born in India in June 2008. He is the twin brother of WXNR. In April 2013, he was granted a Skilled Independent (Subclass 189) visa. He currently holds a permanent Resident Return (subclass 155) visa granted in November 2018. On 21 September 2020, Mr AF applied for Australian citizenship by conferral on CQGG’s behalf.
The delegate was satisfied that CQGG was aged under 18 at the time of the application (section 21(5)(a) of the Act). The delegate was also satisfied that CQGG was a permanent resident at the time of the application and at the time of the decision on the application.
THE DECISIONS UNDER REVIEW
On 18 November 2020, Mr AF was notified by email that a delegate of the Minister had decided to refuse the application of CQGG. On the following day, 19 November 2020,

Mr AF was notified by email that a delegate had decided to refuse the application of WXNR. The delegate exercised the discretion under section 24(2) of the Act to refuse the applications on the basis that the Applicants did not meet any of the policy guidelines for the grant of Australian citizenship to a child of the Applicants’ age (as set out in the relevant policy). The delegate further found that this decision would not be against the Applicants’ best interests in respect to their status as children.
The delegate found that the prohibitions in section 24(3),(4),(4A),(6) or (7) of the Act do not apply to WXNR or CQGG. The delegate is an officer of the Department of Home Affairs (‘the Department’).
On 14 December 2020 the Applicants lodged applications for review with the Tribunal. The Tribunal’s authority to review the decision to refuse WXNR and CQGG’s applications is found in section 52(1)(b) of the Act.
HEARING
The hearing was on 3 August 2021 by telephone, as permitted under section 33A of the AAT Act because of the current public health emergency. Mr AF represented the Applicants and made submissions on their behalf. The Respondent was represented by Mr Anthony Gardner of Minter Ellison. Mr AF answered questions under affirmation.
The Tribunal admitted into evidence the following documents submitted by the Respondent:
·Volume of ‘T’ documents in relation to WXNR lodged under section 37 of the AAT Act (Exhibit R1);
·Volume of ‘T’ documents in relation to CQGG lodged under section 37 of the AAT Act (Exhibit R2);
·Decision record (undated) relating to refusal of Mr AF’s application for Australian citizenship (Exhibit R3);
·Covering letter from delegate to Mr AF relating to refusal of his application for citizenship, dated 9 June 2021 (Exhibit R4); and
·Email from an officer of the Department of Home Affairs dated 2 August 2021 (Exhibit R5).
The Tribunal admitted into evidence the following documents submitted by the Applicants:
·Written submission by Mr AF, dated 17 April 2021 (Exhibit A1);
·Email from Mr AF dated 12 April 2021 with website links relating to study assistance schemes (Exhibit A2);
·Victoria Police LEAP reports, various dates (Exhibit A3);
·Medical report relating to Mr AF, dated 27 January 2021 (Exhibit A4);
·Credit report relating to Mr AF, dated 12 April 2021 (Exhibit A5); and
·State of Victoria birth certificate relating to a half-sibling of the Applicants, extract certified on 25 November 2015 (Exhibit A6).
The Respondent also submitted Statements of Facts, Issues and Contentions relating to each Applicant.
SUBMISSIONS BY APPLICANTS’ REPRESENTATIVE
Mr AF made representations dated 17 April 2021 to the Tribunal that after the death of the Applicants’ biological mother, he remarried a woman who, in his words “troubled my children and they went through a lot of trauma”. He provided the Tribunal with a police complaint against their stepmother.
Mr AF said that because of the domestic situation, he ‘spoilt’ his credit record and lost his job and became psychologically ill. Mr AF said his health is now restored. Mr AF submitted that he is worried about the future of his children and stated: “They deserve the citizenship as they feel connected with Australia”.
Mr AF also wrote, on 12 April 2021:
I contacted [a] few universities and met with [a] few officers who clearly mentioned to get financial help for the children[‘s] college fees – they need to be citizens.
He then included links to various websites relating to study assistance in Australia, including the Higher Education Contribution Scheme/Higher Education Loan Program (‘HECS-HELP’) and then included in his email what appears to be an extract from a website which states:
Commonwealth supported place (CSP)
Students in a Commonwealth supported place (CSP) pay a lower course fee called the Student Contribution Amount (SCA).
CSPs are available to:
·Australian citizens
·Permanent Humanitarian Visa holders
·Australian permanent residents
·New Zealand citizens.
Mr AF then wrote:
If the children don’t get citizenship, they would be definitely disabled and I could not afford paying fees to [sic] them. Kindly consider their application for citizenship. Hence they can’t be on Permanent resident status. Considering their age and education and waiting period for the citizenship will definitely lose their university education.
ORAL SUBMISSIONS
At the hearing, Mr AF made submissions and gave evidence. He said that the Applicants came to Australia in 2013 or 2014 and then returned to India for a time. Mr AF submitted that the Applicants both have strong links with Australia and a half-sibling who was born in Australia.
Mr AF said that the Applicants would face hardship because they would not be able to get admission to university without paying fees, which he could not afford. He said that the processing time for Australian citizenship applications is around two and a half years at present and it may be longer in the future.
Mr AF said that the reason he returned to India was because of Family Court issues in Australia, and he travelled regularly to Australia to maintain his relationship with the two Applicants and to attend Court hearings.
Mr AF said he had recently approached a university in Melbourne with a view to him undertaking a Juris Doctor course but had been told that there were no Commonwealth Supported Places (‘CSPs’) available for that course, so he submitted that CSPs are not available to permanent residents, only to Australian citizens.
Mr Gardner, for the Minister, submitted that it is not in dispute that the Applicants satisfy the general eligibility requirements for Australian citizenship by conferral under the Act. He said the question before the Tribunal is whether the discretion to refuse the application should be exercised.
Mr Gardner noted that as both Applicants are under the age of 18, the Tribunal must take account of the best interests of the child in weighing up the exercise of the discretion.
In relation to the approaches to a university by Mr AF to potentially enrol in a Juris Doctor course, Mr Gardner submitted that this is a postgraduate course and that CSPs are generally not available for postgraduate study, only for undergraduate courses.
ORAL EVIDENCE
Mr AF confirmed that he is a citizen of the Republic of India, as are the two Applicants. He confirmed that he had applied for Australian citizenship on several occasions but had not been successful. In response to Mr Gardner, Mr AF said that he did not have any qualms about giving up his Indian citizenship and acquiring Australian citizenship.
Mr AF said that the reason the Applicants had lodged their applications to the Tribunal was because they would be ineligible for HECS-HELP unless they are Australian citizens. He confirmed they are both currently permanent residents.
Mr AF told the Tribunal that the Applicants had just turned 13 and were in grade seven at a high school in a suburb of Melbourne. He agreed that prospects of attending university are some four to five years in the future for them. Mr AF said they were not currently enrolled in any tertiary study but had been undertaking tutoring to be accepted to attend selective schools.
In answers to questions from the Tribunal, Mr AF confirmed that the mother of the Applicants had died tragically when they were very young. Mr AF said he had subsequently remarried and, with his second wife, Ms LR, had another son, C, who is currently aged seven.
Mr AF said that the Applicants last entered Australia in January 2020 and they have been resident in this country since that time. The Tribunal noted that the reason Mr AF had been refused Australian citizenship himself in June 2021 was because a delegate of the Minister had found he was absent from Australia for 763 days in the four year period before applying for citizenship, but noted he had been in Australia for all of the 12-month period before his application. Mr AF said that during the time he was absent from Australia he was in India, but the two Applicants were both generally here, and in the care of his second wife, their then stepmother, Ms LR.
Mr AF told the Tribunal he now has sole custody of WXNR and CQGG. He said that he divorced Ms LR and has since remarried. His new wife, Ms CN, is consequently the stepmother of the Applicants.
CONSIDERATION
At the outset, the Tribunal noted that the delegate’s decisions in relation to WXNR and CQGG was neither signed nor dated. The decisions were each accompanied by a covering and dated letter sent to Mr AF by a named person, but it was not apparent that the person sending the letter was also the delegate who made the decision.
Accordingly, the Tribunal sought advice from the Respondent of (i) the name of the delegate; (ii) the date of the decisions; and (iii) that the delegate was a person appointed by the Minister under section 53 of the Act. This information was provided the day before the hearing and confirmed that the person who signed the letter sent to Mr AF also made each decision and was an authorised delegate. The Tribunal further notes that the decision record in relation to the June 2021 decision refusing Mr AF’s application for citizenship was also not signed or dated, and the covering letter was from a different delegate.
It would seem to the Tribunal that the Department should amend its administrative procedures to ensure that decision records are signed and dated, so that the Tribunal does not have to make further inquiries of this nature in the future to ascertain whether it has jurisdiction to review the decision. It is not enough that the Respondent accepted that decisions had been made; the Tribunal must itself be satisfied that the jurisdiction is exercisable under section 25 of the AAT Act.
The exercise of the discretion and the interplay of policy with the Act
In Minister for Home Affairs v G [2019] FCAFC 79, the Full Court of the Federal Court of Australia (Murphy, Moshinsky and O’Callaghan JJ) considered whether part of the Australian Citizenship Instructions (re-issued on 1 July 2014), a predecessor to the Citizenship Policy Instructions (‘CPIs’), was inconsistent with the Act and therefore unlawful. The facts in that case were different from the Applicants’ matter; ‘G’ was a disabled child under the age of 16.
The Court made clear, at [18] that there is no power under the Act to make policy instructions, and they are made in an exercise of executive power. The Court stated, at [58]-[61]:
It is established that an executive power relating to the exercise of a statutory discretion must be consistent with the relevant statute in the sense that: it must allow the decision-maker to take into account relevant considerations; it must not require the decision-maker to take into account irrelevant considerations; and it must not serve a purpose foreign to the purpose for which the discretionary power was created: see Drake (No 2) at 640 per Brennan J; NEAT Domestic Trading Pty Ltd v AWB Ltd [2003] HCA 35; (2003) 216 CLR 277 at [24] per Gleeson CJ; Cummeragunga at [159] per Jacobson J.
An executive policy will also be inconsistent with the relevant statute if it seeks to preclude consideration of relevant arguments running counter to the policy that might reasonably be advanced in particular cases: Drake (No 2) at 640. Thus, an executive policy relating to the exercise of a statutory discretion must leave the decision-maker “free to consider the unique circumstances of each case, and no part of a lawful policy can determine in advance the decision which the [decision-maker] will make in the circumstances of a given case”: Drake (No 2) at 641.
However, as Brennan J stated in Drake (No 2) at 641, “[t]hat is not to deny the lawfulness of adopting an appropriate policy which guides but does not control the making of decisions, a policy which is informative of the standards and values which the [decision-maker] usually applies”. In Elias v Federal Commissioner of Taxation, Hely J stated at [34]:
The Commissioner is entitled to adopt a policy to provide guidance as to the exercise of the discretion, provided the policy is consistent with the statute by which the discretion is conferred. Thus if the statute gives a discretion in general terms, the discretion cannot be truncated or confined by an inflexible policy that it shall only be exercised in a limited range of circumstances. A general policy as to how a discretion will “normally” be exercised does not infringe these principles, so long as the applicant is able to put forward reasons why the policy should be changed, or should not be applied in the circumstances of the particular case. See Re Drake v Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634 at 640-641; Chumbairux v Minister for Immigration and Ethnic Affairs (1986) 74 ALR 480 at 492-493.
This passage was approved by Jacobson J in Cummeragunga at [156].
In Plaintiff M64, in the context of considering an executive policy that prioritised the processing of certain categories of visa applications, French CJ, Bell, Keane and Gordon JJ said at [54]:
Policy guidelines like the priorities policy promote values of consistency and rationality in decision-making, and the principle that administrative decision-makers should treat like cases alike. In particular, policies or guidelines may help to promote consistency in “high volume decision-making”, such as the determination of applications for Subclass 202 visas. Thus in Drake v Minister for Immigration and Ethnic Affairs [No 2], Brennan J, as President of the Administrative Appeals Tribunal, said that “[n]ot only is it lawful for the Minister to form a guiding policy; its promulgation is desirable” because the adoption of a guiding policy serves, among other things, to assure the integrity of administrative decision-making by “diminishing the importance of individual predilection” and “the inconsistencies which might otherwise appear in a series of decisions”. The subjectivity of the evaluation by a decision-maker in a case such as the present highlights the importance of guidelines. The importance of avoiding individual predilection and inconsistency in making choices between a large number of generally qualified candidates by the application of the open-textured criterion of “compelling reasons for giving special consideration” is readily apparent.

The Full Court went on to say, at [65]:
First, the statute confers a broad and unfettered discretion in s 24(1) to approve or refuse to approve a person who has made an application becoming an Australian citizen. The breadth of the discretion is confirmed by s 24(2), which provides that the Minister may refuse to approve the person becoming an Australian citizen despite the person being eligible to become an Australian citizen under s 21(2), (3), (4), (5), (6) or (7).
The CPIs provide guidance to decision-makers (that is, officers of the Department who hold the Minister’s delegation) in whether they should exercise the discretion to refuse Australian citizenship in a case like this where the Applicants are under the age of 16 and are permanent residents, notwithstanding the fact that WXNR and CQGG otherwise satisfy the general eligibility criteria for citizenship. Whilst the policy is not binding on the Tribunal, standing in the shoes of an original decision-maker, the approach taken by Brennan J (as His Honour then was, writing as President of this Tribunal) in Re: Drakeand Minister for Immigration and Ethnic Affairs (No.2) (1979) 2 ALD 634, relevantly set out below, has, as is clear from the extract of the judgment of the Full Court set out above, received the Court’s approbation:
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.
Consequently, the Tribunal is guided by the policy (as set out in the CPIs) in considering whether the discretion – a broad ‘unfettered’ discretion, in the words of the Court – should be exercised in the Applicants’ cases, taking into account the relevant provisions in the CPIs, but also keeping in mind the specific circumstances relevant to WXNR and CQGG. Thus, the policy in the CPIs provides a strong guide, because it provides a framework for the exercise of the discretion not inconsistent with the provisions of the Act and supports consistency in decision-making, but not a guide that is binding on the Tribunal. Identified injustice or a perverse outcome by rigidly applying policy in a specific case would be a valid reason to depart from it.
The basis for the rejection
The Minister’s delegate, having accepted that both Applicants were under the age of 18 when they applied for citizenship, and were permanent residents both at the time of the applications and when the decisions were made, then turned to the CPIs.
The CPIs are a group of policy instructions provided to delegates exercising the Minister’s power under section 53 of the Act. It is important to note that the CPIs are not legislative instruments, if they are found to conflict with the Act or regulations made under the Act, they would be invalid to the extent of any such confliction.
CPI 7.1 refers to cases where a child under the age of 15 has made an application in his or her own right, which is the case for WXNR and CQGG. The CPI states that decision-makers must have due regard to the circumstances of the family unit when considering individual applications made by or on behalf of a child aged 15 years or under. Decision-makers are to consider whether the child is:
(a)Usually resident in Australia and living with a responsible parent, who is an Australian citizen and who consents to the application; or
(b)Usually resident in Australia with a responsible parent who is a permanent resident and consents to the application, and that responsible parent would meet the residence requirement but has decided not to apply for Australian citizenship because they would lose the citizenship of another country; or
(c)Usually resident in Australia and living with a responsible parent, who is not an Australian citizen and consents to the application, and the child would otherwise suffer significant hardship or disadvantage if they were not to become an Australian citizen at this time (for example, if the child would not have access to a certain scholarship which is only available to Australian citizens), then this may be a relevant decision for decision-makers; or
(d)Usually resident overseas and living with a responsible parent who is an Australian citizen and who consents to the application; or
(e)An unaccompanied humanitarian minor who falls under the Minister’s guardianship and their responsible carer has consented to the application.
The Tribunal has assigned alpha paragraph numbers for ease of reference.
Consideration of the policy applicable to the Applicants
CPI 7.1(a) is not applicable to WXNR or CQGG. Mr AF confirmed in his evidence that he is not an Australian citizen and is a citizen of India.
CPI 7.1(b) is not applicable to WXNR or CQGG. Mr AF confirmed in his evidence that he has applied on more than one occasion for Australian citizenship. He said he is ‘comfortable’ with the fact that he would lose his Indian citizenship if he acquires Australian citizenship.
CPI 7.1(c) is contended by Mr AF to be relevant to WXNR and CQGG and will be discussed further below.
CPI 7.1(d) is not relevant, because WXNR and CQGG are not usually resident overseas and their responsible parent is not an Australian citizen.
CPI 7.1(e) is not relevant in this matter, because neither Applicant is an unaccompanied humanitarian minor.
Would the Applicants suffer ‘significant hardship or disadvantage’ or “significant hardship or detriment’ by the refusal?
CPI 12, at paragraph 3.2 notes that the phrases ‘significant hardship or disadvantage’ or ‘detriment’ are not defined in the Act. Accordingly, the natural English language meanings of those words is applied. The Concise Oxford Dictionary defines significant hardship as ‘severe suffering or privation’ and detriment as ‘harm or damage’. In other words, would WXNR and CQGG face some form of major or substantial loss in a material way if the discretion is exercised to refuse their applications?
The documents and the oral evidence of Mr AF disclose the following facts. The twin Applicants have just turned 13 years of age. They are just over half-way through their first year of high school. They have not undertaken any tertiary study, which is perhaps not surprising given their age. Mr AF said they have sat, or will shortly sit, some exams to see if they can enrol in selective high schools.
It may be that, as they reach the final years of their secondary education, they are students who will attain the marks necessary for enrolment in higher education. The Tribunal cannot speculate about that and there is no evidence before me on their academic aptitude. Assuming that is the case, their entry into higher education will be, as Mr AF agreed in answer to a question, about four or five years hence.
Mr AF distilled that the reason why he wanted WXNR and CQGG to become Australian citizens at this time is because they would not have access to HECS-HELP study assistance schemes as permanent residents. That is so, because a HECS-HELP loan is only available to Australian citizens, permanent residents on humanitarian visas (which does not apply to the Applicants) and certain New Zealand citizens living in Australia. Notwithstanding the fact that, as Mr AF himself submitted in written material to the Tribunal and the Respondent also submitted, there are CSPs available for permanent residents who are not Australian citizens, the Tribunal accepts that CSPs are finite and there would be no guarantee that WXNR and CQGG, or either of them, would secure a CSP.
The Respondent’s submission that CSPs are only generally available for undergraduate study is not particularly relevant to the Applicants’ claims, but it is relevant to point out that, in the studyassist.gov.au website, which was cited in Exhibit A2, it states:
Most CSPs are for undergraduate study. Only some providers offer CSPs at the postgraduate level.
More relevantly to WXNR and CQGG is a following paragraph from the same website:
Being eligible for a CSP does not mean that a student will be offered a CSP as each provider and each course can have its own extra entry requirements.
However, given that choices about whether or not either or both of the Applicants will decide on a course of tertiary study are some years off into the future, I must consider whether the exercise of the discretion available under section 24(2) of the Act amounts to a significant hardship or detriment for the Applicants.
CPI 4 at paragraph 9.3 relevantly states:
Decision makers are reminded that claims the applicant cannot access the Commonwealth’s Higher Education Contribution Scheme (HECS) or Higher Education Loan Program (HELP) because they are not an Australian citizen is not, by itself, significant hardship or disadvantage.
The CPIs also explicitly consider this potential scenario in CPI 12 where, in part of paragraph 3.2, they state:
The person claims they cannot access educational opportunities until they become an Australian citizen. For example, the person claims they will not be able to afford to pay the higher fees imposed on some non-citizens and will suffer significant hardship or disadvantage as a consequence, or they claim they will suffer significant hardship or disadvantage if they pay the fees.
Australian citizenship is not a requirement to study in Australia at the primary, secondary or tertiary levels in Australia. Permanent residents are eligible for Commonwealth supported places in Australian universities, where available. Although eligibility for financial assistance such as the Australian Government loan schemes HECS-HELP, is limited to Australian citizens, permanent humanitarian visa holders and some New Zealand citizens, aspiring students who do not qualify for such assistance may be able to defer tertiary enrolment until after they have acquired citizenship.
Apart from the period of time that must elapse before either Applicant contemplates tertiary study, there are other aspects which incline me to the view that they do not face significant disadvantage or have hardship imposed upon them in a material way by the refusal to grant them Australian citizenship at this time. Mr AF made some remarks about the Department’s current processing time for citizenship applications. That is a matter of speculation and cannot be predicted several years hence. Either or both of the Applicants can apply for citizenship as they get older and, if the factual situation changes and they can demonstrate acceptance into a tertiary course, that may become a factor that is directly relevant to their particular circumstances, rather than what is – today – simply a future scenario, several years away.
Importantly, as the Respondent reminded the Tribunal, the considerations in CPI 4, paragraph 7.1 do not apply when an applicant for citizenship is aged 16 or older, so WXNR and CQGG would be able to make a fresh application any time after attaining that age, and while they are still attending high school, presumably with a better idea, then, of future study pathways they might like to follow.
In addition, on the evidence before me, Mr AF has been refused Australian citizenship solely on the basis that he was not resident for the requisite period in the four-year period before his application. He is not prevented from making a further application when he has satisfied the residence requirement and he is able to include any dependent child under the age of 16 in that future application. That obviously could include WXNR and CQGG.
Australia’s international obligations - The rights of the child
The CPIs oblige a decision-maker, when exercising a discretion under the Act to consider refusing citizenship to a person under the age of 18, to also consider the Convention on the Rights of the Child (‘the Convention’), and specifically Article 3.1 of the Convention, which states:
In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interest of the child shall be a primary consideration.
Australia ratified the Convention in 1990. As the Applicants were under the age of 18 and were in the jurisdiction of Australia at the time of the decision, their best interest must be treated as a primary consideration in making the decision (see CPI 13 – Best interests of the child assessments, paragraph 3.2).
WXNR and CQGG, as permanent residents of Australia, have permission to reside in Australia indefinitely. They have access to education (including, when the time comes, higher education), health and social welfare services. Like Australian citizens, the Applicants are entitled to the protection of Australian laws. These laws provide protection from physical or mental violence, injury or abuse, neglect or negligent treatment and maltreatment or exploitation, including sexual abuse.
The Respondent submitted that these laws provide a child with the right of freedom of religion and protection from the illicit transfer and non-return from abroad. The delegate noted that refusal of the citizenship applications would not change the Applicants’ immigration status in Australia nor separate them from their responsible parent, who also holds a permanent residence visa.
I consider the provisions in the Convention relating to the best interest of the child are not engaged in a deleterious way in relation to the Applicants in these factual circumstances. Consequently, I find that the exercise of the discretion to refuse citizenship does not infringe on the rights of WXNR and CQGG as children, or their best interests, as set out in the Convention.
CONCLUSION
I have weighed all the circumstances in this case. Mr AF has submitted evidence that he has certain financial pressures and has had, in the past, certain health issues. The Tribunal accepts those submissions. The Tribunal further accepts, as I say above, that there are a limited number of CSPs available and while it is clear that permanent residents are eligible, it is a very competitive field and there would be no guarantee in the future of WXNR or CQGG securing a CSP. There is no doubt that access to HECS-HELP could be of assistance in the future, should they decide to do tertiary study.
However, this is not a case where either of the Applicants has been accepted into a tertiary course and where refusal of their application for Australian citizenship could be a specific and tangible disadvantage or detriment to them (cf. the different factual circumstances of a student accepted for a tertiary course and shortly to commence it, in Re: DVRF and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] AATA 220). Keeping in mind they are in their first year of secondary education, it will be some years before it is known that WXNR and CQGG will be academically eligible for tertiary study. It will also be some years before either Applicant will themselves know whether he or she wants to enrol in a tertiary education course.
In terms of avenues of relief from any disappointment if the decision under review is affirmed, there are two obvious alternative pathways for WXNR and CQGG if they wish to again apply for Australian citizenship. They can apply after attaining the age of 16, when the considerations in CPI 7.1 set out above are no longer applicable. They can also be included by Mr AF in a future application he may make when he has overcome the remaining hurdle of being present in Australia for the required period. That seems on the evidence to be the only stumbling block for the Applicants’ father being approved for citizenship. Either of these pathways would, subject to WXNR and CQGG satisfying all the other legislative requirements, lead to citizenship by conferral.
Considering the policy considerations set out in the CPIs, and the circumstances personally applicable to WXNR and CQGG, I can identify no injustice to them by the exercise of the discretion in section 24(2) of the Act to refuse their applications. There are no special circumstances evident on the facts which might invite a departure from generally applied policy. I therefore have concluded that the decisions under review were correct in law and, where discretionary powers have been exercised, as they have in each of these cases, they were exercised consistently with established policy and therefore in a preferable manner.
DECISION
The decisions under review are both affirmed.

I certify that the preceding 75 (Seventy-five) paragraphs are a true copy of the reasons for the decision herein of Senior Member D. J. Morris

................................[sdg]........................................
Associate
Dated: 26 August 2021

Date of hearing:

3 August 2021

Applicant:

Self-Represented

Advocate for the Respondent:

Mr Anthony Gardner

Solicitors for the Respondent:

Minter Ellison

[2021] AATA 3053

26 August 2021

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Procedural Fairness

Natural Justice

Jurisdiction

Statutory Construction

Remedies

Date of hearing:	3 August 2021
Applicant:	Self-Represented
Advocate for the Respondent:	Mr Anthony Gardner
Solicitors for the Respondent:	Minter Ellison