XJNM and Minister for Immigration, Citizenship, and Multicultural Affairs (Citizenship)

[2022] AATA 3225

XJNM and Minister for Immigration, Citizenship, and Multicultural Affairs (Citizenship) [2022] AATA 3225 (6 October 2022)

Division:GENERAL DIVISION

File Number:          2021/5055

Re:XJNM, by his parents Ms L and Mr S  

APPLICANT

AndMinister for Immigration, Citizenship, and Multicultural Affairs

RESPONDENT

Decision

Tribunal:Senior Member A. Nikolic AM CSC

Date:6 October 2022

Place:Melbourne

The Tribunal affirms the decision under review.

.......................[sgd].................................................

Senior Member A. Nikolic AM CSC

CATCHWORDS

CITIZENSHIP - application for conferral of Australian citizenship - whether the discretionary power to refuse an application for citizenship should be exercised - s 24(2) Australian Citizenship Act 2007 (Cth) - Australian Citizenship Policy Statement - Revised Citizenship Procedural Instructions - United Nations Convention on the Rights of the Child - whether Applicant covered by policy guidelines - decision affirmed

LEGISLATION

Administrative Appeals Tribunal Act 1975 (Cth)

Australian Citizenship Act 2007 (Cth)

CASES

Drake and Minister for Immigration and Ethnic Affairs, Re (No 2) (1979) 2 ALD 634

Minister for Home Affairs v G (2019) 164 ALD 103

SECONDARY MATERIALS

Department of Immigration and Border Protection, Australian Citizenship Policy Statement (27 November 2020)
Convention on the Rights of a Child, opened for signature 20 November 1989, 1577 UNITS 3 (entered into force 2 September 1990)
Refugee, Citizenship and Multicultural Programs Division, Department of Home Affairs, Revised Citizenship Procedural Instructions (1 January 2019)

The Statutes of the Republic of Singapore, Enlistment Act (Chapter 93), version in force from 1 June 2015

REASONS FOR DECISION

Senior Member A. Nikolic AM CSC

6 October 2022

INTRODUCTION

1. The Applicant is a five-year-old minor child who, through his parents, seeks review of a decision of a delegate of the Respondent dated 21 July 2021, to refuse his application for Australian citizenship by conferral.

2. The hearing was held on 4 October 2022 by videoconference. The Applicant was represented by his mother, who the Tribunal will refer to as “Ms L”. The Respondent was represented by Alexandra O’Grady, a solicitor with Minter Ellison.

3. For the following reasons the Tribunal affirms the decision under review.

   BACKGROUND

4. The Applicant was born in Singapore[1] and is a citizen of that country.[2] Medical evidence discloses he has a non-functional right kidney[3] (kidney condition), for which he has received treatment since birth. He first arrived in Australia with his parents in 2018[4] on a Subclass 101 Child visa.[5] Under this visa he has the right to reside in Australia permanently.

   [1] Exhibit R1, 28.

   [2] Ibid.

   [3] Ibid 8; Exhibit A1, 3-13.

   [4]  Exhibit R1, 39.

   [5] Ibid 40.

5. On 1 March 2021, an application for Australian citizenship by conferral was lodged on the Applicant’s behalf.[6] Copies of his Singaporean birth certificate and passport were provided.[7]

   [6] Exhibit R1, 14.

   [7] Ibid 28-31.

6. On 21 July 2021, a delegate of the Respondent refused the application.[8] The delegate exercised the discretion under s 24(2) of the Australian Citizenship Act 2007 (Cth) (the Act) to refuse the application, because the Applicant did not meet any of the Departmental policy guidelines relevant to children aged 15 years and under.

   [8] Ibid 10.

7. On 25 July 2021, the Applicant sought review of this decision.[9] In response to the question: ‘Why do you claim the decision is wrong?’ it was stated on the Applicant’s behalf:

   ‘[The Applicant] is 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…We have met all the criteria and conditions for conferral application, please kindly grant citizenship…’

   [9] Ibid 1.

   LEGISLATIVE FRAMEWORK

8. The Preamble to the Act outlines the nature of citizenship and its accompanying rights and responsibilities as follows:

   The Parliament recognises that Australian citizenship represents full and formal membership of the community of the Commonwealth of Australia, and Australian citizenship is a common bond, involving reciprocal rights and obligations, uniting all Australians, while respecting their diversity.

   The Parliament recognises that persons conferred Australian citizenship enjoy these rights and undertake to accept these obligations:

   (a)       by pledging loyalty to Australia and its people; and

   (b)       by sharing their democratic beliefs; and

   (c)       by respecting their rights and liberties; and

   (d)       by upholding and obeying the laws of Australia.

9. Section 21(1) of the Act provides that a person may apply to the Minister to become an Australian citizen.

10. Section 24(1) provides that the Minister must approve or refuse an application for citizenship made under s 21. Under s 24(1A), the Minister must not approve an application for citizenship unless the person meets the eligibility requirements prescribed under ss 21(2), (3), (4), (5), (6), (7) or (8) of the Act.

11. Relevant to this application is s 21(5), which applies where the person applying for citizenship is under the age of 18. Section 21(5) imposes the following eligibility requirements for citizenship by conferral:

    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;

    (ii)at the time of the Minister’s decision on the application.

12. Section 24(2) of the Act provides the Minister with a discretion to refuse an application for Australian citizenship despite the person meeting the eligibility requirements of s 21(5).

13. Section 25(1)(a) of the Administrative Appeals Tribunal Act 1975 (Cth) (the AAT Act) and s 52(1)(b) of the Act confer jurisdiction upon the Tribunal to review decisions made under s 24 of the Act.

    Citizenship Policy and Procedural Instructions

14. Decision-makers exercising powers under the Act are guided by executive policy. The Full Court of the Australian Federal Court has held that the discretion to approve or refuse citizenship is unfettered, and ‘not inimical to the adoption of executive policy…to guide the exercise of discretion’.[10] Their Honours reasoned that the Act envisaged the existence of executive policy, the adoption of which promotes consistency and rationality in decision-making.[11] Noting that each case is considered de novo and on its merits, Government policy is ordinarily considered and applied by the Tribunal unless there is a cogent reason not to.[12] No submissions were made that the Tribunal should disregard the available policy and the Tribunal sees no reason why it should not be applied.

    [10] Minister for Home Affairs v G (2019) 164 ALD 103, 120 [64].

    [11] Ibid, [65]; [70].

    [12] Drake and Minister for Immigration and Ethnic Affairs, Re (No 2) (1979) 2 ALD 634.

15. In determining this application, the Tribunal has considered the Australian Citizenship Policy Statement 2020 (the Policy) and Revised Citizenship Procedural Instruction 4-Australian citizenship by conferral-person under 18 (CPI 4). This is consistent with the guidance for decision-makers outlined in CPI 4 under the heading Purpose, being that decision-makers ‘must consider the Department’s approved policy and procedures where relevant and appropriate’ to ensure ‘decision-making is consistent to the extent that it is appropriate and arbitrary outcomes are avoided’.

16. Cl 7 of CPI 4 applies to applications for citizenship lodged independently on behalf of children aged 15 years and under. It provides the following general instructions:

    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 or their parent has died.

17. CPI 4 then identifies the following factors as being relevant to a decision under s 24(2) of the Act as to whether the Minister should exercise the discretion to refuse the application (the policy guidelines). Decision-makers are counselled 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; or

    ·usually resident in Australia and living with a responsible parent who is a permanent resident and who consents to the application; or

    ·usually resident in Australia and living with a responsible parent, who is not an Australian citizen and who consents to the application. In this situation, the delegate must assess whether the child would 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; or

    ·usually resident overseas and living with a responsible parent, who is an Australian citizen and who consents to the application. In this situation, delegates must consider whether the child (and their parent) has an intention to reside, or will maintain a close and continuing association with Australia should the application be approved…the delegate must also consider whether the grant of the Australian citizenship could disadvantage the child or put them in significant hardship. For example, by losing their other citizenship or;

    ·an unaccompanied humanitarian minor who falls under the Minister’s guardianship. In this situation, the child’s responsible parent or carer must consent to the application…

    Applications must also be carefully considered to ensure that the child and their family unit or their relevant responsible parent, intends to reside, or continues to reside, in Australia or to maintain a close and continuing relationship with Australia should the application be approved.

18. Cl 9.3 of CPI 4 provides that in deciding whether to exercise the discretion under s 24(2), decision-makers should undertake a ‘best interests of the child assessment’, which must be included in the reasons for the decision to demonstrate that the decision-maker has considered this matter. This reflects Article 3 of the United Nations Convention on the Rights of the Child (UNCRC) to which Australia is a party, which provides in part:

    ‘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.’

19. CI 11.1 of CPI 4 provides additional guidance as to how the best interests of the child assessment is to be weighed in the decision-maker’s considerations when exercising power under s 24(2):

    ‘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 set out in the Act, however, the exercise of a discretionary power such as subsection 24(2), must take account of the best interests of the child as a primary consideration.’

20. CPI 4 also refers to Revised Citizenship Procedural Instruction 13-Best interests of the child assessments (CPI 13). In defining the phrase ‘best interests of the child’, CI 3.2 of CPI 13 draws upon the principles in the UNCRC and identifies the factors most likely to be relevant to citizenship decisions as follows:

    ·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.

21. CPI 13 also supplements the guidance provided in CPI 4 as to how a best interests of the child assessment is to be considered in conjunction with the other matters relevant to the exercise of discretionary power under s 24(2). It provides, at CI 3.4:

    Consistent with Australia’s international human rights obligations, the ‘best interests of the child’ is a primary consideration in actions concerning children, where there is the discretion to do so. These obligations do not require that the best interests of the child be the only primary consideration, or be considered at all where there is no discretion under legislation. The best interests of the child must be weighed with or against any other primary considerations in the specific circumstances. Other primary considerations may include (but are not limited to):

    ·the objectives of the relevant provision/s in the Act;

    ·community protection; and

    ·community expectations.

    This means that although it may be assessed that a particular decision would be in the best interests of a child, it does not automatically follow that it is the decision that should be made. For example, it may be in the best interests of a child for a delegate to decide not to revoke an associated person’s Australian citizenship under section 34 of the Act but, depending on the particular facts and after taking into account the other primary considerations, the decision-maker may conclude that revocation of the person’s citizenship is the decision that should be made. This involves a weighing of the competing interests. For example, a severe detriment to the child might outweigh a minor fraud offence by the parent, whereas if it is only marginally in the child’s best interests that citizenship not be revoked, that may be outweighed by the parent’s conviction for a serious offence.

    EVIDENCE

    Documentary evidence

22. The following documents were tendered into evidence at the hearing:

    (a)Documents lodged by the Respondent numbering 107 pages;[13]

    (b)Movement records for Mr S lodged by the Respondent;[14]

    (c)Medical records for the Applicant from a Singaporean hospital and accompanying emails regarding Singapore’s National Service, collectively numbering 13 pages;[15]

    (d)Inpatient summary for the Applicant from a Singaporean hospital;[16]

    (e)Letter from the Singaporean Central Manpower Base regarding Singapore’s National Service;[17]

    (f)Letter from an Australian childcare centre regarding the Applicant’s attendance;[18]

    (g)A summary of the Applicant’s Child Care Subsidy Enrolments;[19]

    (h)A Fixed Rate Investment Home Loan Summary for Mr S’s Australian property;[20]

    (i)An Investment Home Loan Summary for another of Mr S’s Australian properties.[21]

    [13] Exhibit R1.

    [14] Exhibit R2.

    [15] Exhibit A1.

    [16] Exhibit A2.

    [17] Exhibit A3.

    [18] Exhibit A4.

    [19] Exhibit A5.

    [20] Exhibit A6.

    [21] Exhibit A7.

    Applicant’s evidence

23. The Applicant’s father, who the Tribunal will refer to as “Mr S”, stated in documentary evidence that XJNM will suffer significant hardship or disadvantage if Australian citizenship is not granted, because:

    (a)The best treatment for XJNM’s kidney condition is in Australia.

    (b)XJNM would be unable to obtain an exemption from compulsory national service in the Singaporean Army because of his kidney condition, which may take a toll on his body, and that casualties and injuries can arise from army officers being negligent in their consideration of conscript safety.

    (c)The education system in Australia is less stressful for children than in Singapore, particularly for children with medical conditions like XJNM.

    (d)Mr S and Ms L intend to settle permanently in Australia with XJNM.

24. In oral evidence, Ms L repeated the above documentary submissions, claiming that Australia is a better place for XJNM’s ‘health and upbringing’. She claimed that when required to undertake national service, XJNM will be required to complete ‘intensive field activities’ irrespective of his kidney condition and that no exceptions or exemptions are available. When asked about publicly available information regarding exceptions and exemptions under Singaporean national service law[22] and the availability of non-military options for performance of national service, Ms L agreed she was unfamiliar with the applicable law but disagreed XJNM could gain an exemption because of ‘cultural’ expectations in Singapore.

    [22] The Statutes of the Republic of Singapore, Enlistment Act (Chapter 93), version in force from 1 June 2015, available at: >

    Ms L referred to life in Singapore as ‘very tense for growing up’ and said Singapore’s education system is ‘stressful’ for young people. She felt XJNM would benefit from a less stressful environment under the Australian education system.

25. Ms L agreed XJNM’s kidney condition was treated from birth in Singapore, and that as a permanent resident, he has access to education and healthcare in Australia.

    CONCLUSION

26. XJNM is not an unaccompanied minor. He lives with and is cared for by his parents. He has previously travelled to Australia for a three-day period in April 2018 and most recently travelled to Australia on 19 April 2020.

27. XJNM’s parents do not meet the general residence requirement under s 22(1) of the Act, which currently makes them ineligible to apply for Australian citizenship. It was not contested that on currently available information, Mr S and Ms L will meet this requirement in or about March 2024, at which time XJNM can be included in their applications.  

28. The submissions about comparative lifestyles in Singapore and Australia were general at best. The claim that XJNM would be forced to undertake national service irrespective of any limitations caused by his kidney condition and would be ineligible for an exception or exemption, was uninformed and speculative. This is particularly so because XJNM is a five-year-old child and is not eligible for Singaporean national service until the age of 18.

29. The Tribunal does not accept there are ‘no exceptions’ to national service in Singapore.[23] Singapore’s national service provision is a law of general application. Publicly available information refers to legislative exceptions, exemptions, and alternative National Service options. There is no evidence XJNM would be compelled to undertake military service regardless of medical limitations or would be discriminated against compared to other Singaporean citizens. Ms L’s submission about ‘cultural expectations’ that are separate from legal requirements, was uncorroborated and general at best.

    [23]  Exhibit R1, 5.

30. There is no evidence XJNM is unable to access medical care for his kidney condition in Singapore, where it was diagnosed and treated since birth.[24] There is also no evidence he is unable to access treatment in Australia as a permanent resident, which Ms L accepted.

    [24] Ibid 8.

31. The claims by Mr S and Ms L about comparative stressors experienced by students in Singapore, compared to those in Australia, are speculative at best given XJNM is so young.

1. The Applicant’s circumstances do not enliven the policy considerations detailed in CPI 4. On currently available information there is no basis to grant him inequivalent immigration status to his parents because of any injustice, significant hardship, or other detriment. Refusal to grant the application is not against XJNM’s best interests within the meaning of the policy guidelines. His immigration status in Australia and rights as a permanent resident remain unchanged. Moreover, if Mr S and Ms L do intend on remaining in Australia permanently, they are likely to achieve the general eligibility requirement for citizenship in a relatively short time, when XJNM can be included under their applications.

   DECISION  

2. It follows that the Tribunal affirms the decision under review.

I certify that the preceding thirty-four (34) paragraphs are a true copy of the reasons for the decision herein of Senior Member A. Nikolic AM CSC

...............................[sgd].........................................

Associate

Dated: 6 October 2022

Date of hearing:	4 October 2022
Advocate for the Applicant:	Ms L (Applicant’s mother)
Advocate for the Respondent:	Ms Alexandra O’Grady
Solicitors for the Respondent:	Minter Ellison