Xin Yang Wang and Minister for Immigration and Citizenship

[2012] AATA 658

[2012] AATA 658

Division	GENERAL ADMINISTRATIVE DIVISION
File Number	2011/4920
Re	Xin Yang Wang
APPLICANT
And	Minister for Immigration and Citizenship
RESPONDENT

DECISION

Tribunal	Regina Perton, Member
Date	28 September 2012
Place	Melbourne

The Tribunal affirms the decision under review.

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Regina Perton, Member

Citizenship – application for citizenship by conferral – permanent resident – applicant aged 16 years at time of application – applicant did not meet residence requirement – policy considerations - whether discretion should be exercised – significant hardship and disadvantage  – decision affirmed.

Australian Citizenship Act 2007 sections 21, 22, 24

Australian Citizenship Instructions Chapter 5, Attachment B

Drake v Minister for Immigration and Ethnic Affairs (No.2) (1979) 2 ALD 634

REASONS FOR DECISION

Regina Perton, Member

28 September 2012

1. Xin Yang Wang is an Australian permanent resident.  He is a Chinese citizen.  On 19 August 2011 when he was 16 years old, he applied for Australian citizenship by conferral.  He did not satisfy the residence requirements for citizenship.  There is discretion to grant citizenship to applicants aged between 16 and 18 years who do not meet all the criteria specified in the legislation.   A delegate of the Minister for Immigration and Citizenship (the Minister) refused the application on 21 September 2011 as she was not satisfied his circumstances warranted the exercise of discretion. 

2. On 17 November 2011 Mr Wang lodged an application for review with the Tribunal preceding a request for an extension of time to which the Minister agreed.

3. The issue for the Tribunal is whether to exercise discretion to grant Mr Wang citizenship notwithstanding that he does not meet the prescribed residence criteria.

   RELEVANT LEGISLATION AND POLICY

4. Section 21 of the Australian Citizenship Act 2007 (the Act) sets out the eligibility requirements for persons seeking Australian citizenship.  For adults, these include permanent residence, a basic knowledge of English and being of good character.  Section 21(5) of the Act applies to persons under 18 years:

   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.

5. Section 24 of the Act states:

   (1)      If a person makes an application under section 21, the Minister must, by writing, approve or refuse to approve the person becoming an Australian citizen.

   Note:     The Minister may cancel an approval: see section 25.

   (1A)     The Minister must not approve the person becoming an Australian citizen unless the person is eligible to become an Australian citizen under subsection 21(2), (3), (4), (5), (6), (7) or (8).

   (2)     The Minister may refuse to approve the person becoming an Australian citizen despite the person being eligible to become an Australian citizen under subsection 21(2), (3), (4), (5), (6) or (7).

6. Chapter 5 of the Australian Citizenship Instructions (ACI) provides guidance on applications for citizenship under the Act made by those aged between 16 and 18 years of age at the time of the application.  The Tribunal is required to have regard to the ACI unless there are cogent reasons for not doing so (Drake v Minister for Immigration and Ethnic Affairs (No.2) (1979) 2 ALD 634). 

   POLICY GUIDELINES

   Applicants aged 16 years and over and under the age of 18

   …

   Applicants aged 16 years and over and under the age of 18 would usually be approved under s24 if they are permanent residents at the time of application and decision and also meet the following policy guidelines:

   •   satisfies the residence requirement

   •    the applicant need not meet the residence requirements if this would cause significant hardship or disadvantage. See Attachment B - Significant hardship and disadvantage for guidance

   •   understands the nature of an application

   •   possesses a basic knowledge of the English language

   •   has an adequate knowledge of the responsibilities and privileges of Australian citizenship at the time of decision

   •   is likely to reside or continue to reside, or maintain a close and continuing association with Australia.

   …

   In the case of an applicant who does not meet the policy guidelines above, decision makers must consider the full circumstances of the case, including the best interest of the child, to determine whether the application nevertheless warrants approval because of the unusual nature of those circumstances.

   …

7. Appendix B of the ACI states the following:

   The Macquarie Concise Dictionary and Collins Concise English Dictionary, Australian Edition make the following definitions:

   Significant                  of consequence;

   important or momentous

   hardship  conditions of life difficult to endure;

   something that causes suffering or privation

   disadvantage              an unfavourable circumstance, thing, person;

   injury, loss or detriment

   People would normally be required to demonstrate some or all of the following circumstances:

   •     inability to gain employment on the grounds that the employment is restricted to Australian citizens, and that comparable or alternative employment is not reasonably available

   •     difficulty of international travel because the person cannot obtain a passport from their country of nationality/citizenship, or are unable to use a passport issued by that country for safety or similar reasons

   •      academic (eg research, academic scholarship) or other (sporting etc) potential is being limited or restricted, because the opportunities to reach that potential is available only to an Australian citizen, to the extent that it causes significant hardship.

   Decision makers will need to assess each application on its merits. While policy is not to be applied inflexibly, it must be applied, unless there are special circumstances that would warrant consideration outside that policy.

   Evidence of significant hardship and disadvantage is required (eg a statement in writing, with appropriate supporting documentation to demonstrate how they meet the legal requirements and policy guidelines).

   The onus is on the applicant to provide the evidence to support the application.

   Decision makers must be mindful of the difference between personal needs and personal wants.

   Personal needs relate to situations which would give rise to significant hardship or disadvantage if a person could not meet that need. For example, if a person could not find any employment, and was unable to adequately financially support themselves or their family.

   Personal wants are aspirations and generally do not constitute hardship (ie the right to vote, election to Parliament, HECS availability, representing Australia internationally in academics or sport).

   Australian citizenship is not a requirement to study in Australia. Australian universities are permitted to admit students who are not Australian citizens. Permanent visa holders are eligible for a Commonwealth supported place (previously known as a Higher Education Contribution Scheme) or a domestic fee-paying place. The requirement to be an Australian citizen is only relevant to students who wish to access a loan under the Australian Government’s Higher Education Loan Programme (HELP) for their student contribution or tuition fee. Further information is available from the Department of Education, Science and Training at >

   The residence requirements set out in the policy guideline is set out in s 22 of the Act:

   22 General residence requirement

   (1)     Subject to this section, for the purposes of section 21 a person satisfies the general residence requirement if:

   (a)     the person was present in Australia for the period of 4 years immediately before the day the person made the application; and

   (b)     the person was not present in Australia as an unlawful non-citizen at any time during that 4 year period; and

   (c)     the person was present in Australia as a permanent resident for the period of 12 months immediately before the day the person made the application.

   Overseas absences

   (1A)     If:

   (a)     the person was absent from Australia for a part of the period of 4 years immediately before the day the person made the application; and

   (b)     the total period of the absence or absences was not more than 12 months;

   then, for the purposes of paragraph (1)(a), the person is taken to have been present in Australia during each period of absence.

   (1B)     If:

   (a)     the person was absent from Australia for a part of the period of 12 months immediately before the day the person made the application; and

   (b)     the total period of the absence or absences was not more than 90 days; and

   (c)     the person was a permanent resident during each period of absence;

   then, for the purposes of paragraph (1)(c), the person is taken to have been present in Australia as a permanent resident during each period of absence.

   MR WANG’S CLAIMS

8. Mr Wang migrated to Australia in August 2002 with permanent residency dependent on a BC-100 visa when he was seven years old.  In the four years prior to his application for citizenship, travel records show that he was out of Australia for more than the permissible period allowed for in section 22 of the Act. 

9. Mr Wang spent his early years in China with his grandparents.  Upon migrating to Australia he went to a local primary school in Glen Waverley from Year 4 to Year 6.  He attended the Knox School for years 7 and 8 before transferring to Caulfield Grammar for years 9 and 10.  He told the Tribunal that he enjoyed attending Caulfield Grammar where he has made many friends.

10. Mr Wang’s parents decided that it would be beneficial for him to attend a British style boarding school based in Thailand, namely the Harrow International School.  Mr Wang said that it had been quite tough to adjust initially being away from home and with few students sharing his background.  However he is doing very well in his studies and exploring the musical and other educational opportunities available there.  He will be school captain.  He said that it is fortunate also that there are some Australian teachers to whom he can relate. 

11. Mr Wang told the Tribunal that he considers himself to be an Australian given he has lived here since he was seven years old.  He intends to return to Australia for tertiary studies.  He heads back to Australia for holidays whenever he can.  His family home is in Melbourne.  When he returned to Australia in June/July 2011, he obtained his learner driver’s permit.  Mr Wang had been in Australia for two weeks shortly before the hearing.  He gave oral evidence from China where he was with his parents.  Mr Wang was still on holidays as the new school year had not yet started.  Mr Wang’s mother has held an Australian passport since November 2008.  His parents travel out of Australia quite a lot because of his father’s business. 

12. Mr Wang provided letters of support written in July and August 2011 from several school friends and relatives.  These included:

    ·Several school friends from Caulfield Grammar School’s Wheelers Hill campus who met him in February 2009 and who have maintained their friendships with him on his return visits since he started attending Harrow International School.

    ·Cousins living in Australia who described how he misses Australia, the activities they did together and their views that he will return to Australia to live after finishing his secondary education.

    ·Mr Wang’s grandparents who are long time Australian citizens.  Mr Wang lived with them while attending Caulfield Grammar and on his returns to Australia during school holidays.  They expressed their certainty that he will return to Melbourne for university and beyond.

13. Mr Wang focussed on the difficulties he faces travelling on a Chinese passport rather than an Australian document.  He indicated that it is easier travelling on an Australian passport than a Chinese passport.  In a statement 15 June 2012, Mr Wang stated, among other things:

    …

    Without holding an Australian passport, I could not attend some activities of the Harrow International School which involves travelling to other countries.  An example would be visiting the original Harrow School campus in UK to study the culture and history of the School.  I could not go on a history trip to Europe for my ongoing studies of History.  I also could not go on hiking, camping, other school trips or sporting activities in the US and many other countries outside Thailand, Australia or China.

    My participation in these school academic and sporting activities was being restricted by NOT holding an Australian passport.  This makes me feel isolated from the Harrow International School activities and in turn makes me feel very sad and frustrated. NOT holding an Australian passport does cause significant hardship for this important duration of my life.

    …

14. Mr Wang told the Tribunal about a study trip to Italy that the school had arranged which was to take place in the school holidays.  He thought it might be interesting and also assist his studies.  He was told by the school’s administration that he was required to provide more information to get the relevant visas than the students who held other types of citizenship.  Mr Wang conceded that he was not refused a visa and, in fact, had not applied for a visa.  He decided he would spend the holidays with his parents rather than go on the trip. 

15. In relation to the trip to the UK cited in his statement, he indicated it was not a school trip.  He had been told that it was difficult for people from China to get a visa and that it would be quite a hassle.  Mr Wang had been told that he would have to provide evidence that he would return to China after visiting the UK.  In the end he did not apply.  Asked by the respondent’s representative whether he was aware that even with an Australian passport, someone under 18 would have been required to show that he could fund the trip, whether he was leaving the UK within six months and had the consent of his parents, Mr Wang responded that it would still have been easier with an Australian passport.   

16. Mr Wang's uncle, Michael Zhang, provided an information sheet about applications for visas by Chinese passport holders wishing to visit the US and the UK.  The material indicated that applicants for visas have to provide economic, social, family or other commitments to demonstrate that they intend to return to China after a temporary stay in the US or UK.  He stated that most of Mr Wang's classmates hold Hong Kong, European or Thai passports and do not have such complex procedures if they wish to enter the US or the UK.

    SHOULD MR WANG BE GRANTED CITIZENSHIP?

17. The parties concur, and the Tribunal finds, that Mr Wang did not meet the general residence requirement set out in the Act. 

18. Mr Wang pointed out that if he had applied for citizenship a few months earlier, he would have met the general residence requirement.  However, there is no discretion to consider a date other than the actual date of application for citizenship. 

19. The Tribunal understands the basis for Mr Wang’s wish to obtain Australian citizenship and an Australian passport.  It accepts that he identifies as an Australian.  He has an Australian accent, enjoys Australian sport and misses his Australian friends.  The Tribunal accepts that it is his desire to study in Australia after completing his secondary education.  However as is pointed out in the ACI, there are no barriers for Australian permanent residents in accessing study in Australian tertiary institutions.

20. The Tribunal accepts that travel on an Australian passport would be more convenient for Mr Wang than travelling on a Chinese passport.  However, the Tribunal needs to consider whether the consequences of not being able to travel on an Australian passport while studying in Thailand would be described as significant hardship or disadvantage and warrant departure from usual citizenship requirements and the relevant policy. 

21. Mr Wang has posed possible difficulties he could face in gaining entry to certain European countries or the US.  However he has not demonstrated actually experiencing such hardship or disadvantage.  Furthermore as the holder of an Australian permanent resident visa, he is able to travel freely to and from Australia.  He has been able to enter and stay in Thailand to attend the Harrow International School while holding his Chinese passport. 

22. The Tribunal accepts the respondent’s submission that Mr Wang's situation would be better described as a personal want rather than a personal need, as set out in the ACI.

23. While the Tribunal accepts that Mr Wang is committed to Australia and would prefer, and find it easier, to travel on an Australian passport, the Tribunal does not accept that a failure to currently be such a holder would cause significant hardship or disadvantage.   The Tribunal is not satisfied that it should exercise discretion to grant Australian citizenship outside the relevant policy. 

    DECISION

24. The Tribunal affirms the decision under review. 

I certify that the preceding 25 (twenty -five) paragraphs are a true copy of the reasons for the decision of Regina Perton, Member.

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Associate

Dated 28 September 2012

Date of hearing	7 August 2012
Advocate for the Applicant	Mr Jun Michael Zhang, applicant’s uncle
Counsel for the Respondent	Ms Julia Randall-Smith
Solicitors for the Respondent	Australian Government Solicitor