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

YQCV and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Citizenship) [2020] AATA 1994 (29 June 2020)
Division:General Division
File Number(s): 2019/2953
2019/4724
2019/4725

Re: YQCV
APPLICANT

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

DECISION
Tribunal:Deputy President J W Constance
Date:29 June 2020
Place:Sydney

Application 2019/2953
The decision of a delegate of the Minister for Home Affairs, made 19 May 2019, to refuse the Applicant’s application for Australian citizenship, is affirmed.
Application 2019/4724
The decision of a delegate of the Minister for Home Affairs, made 19 May 2019, to refuse the Applicant’s application for Australian citizenship, is affirmed.
Application 2019/4725
The decision of a delegate of the Minister for Home Affairs, made 19 May 2019, to refuse the Applicant’s application for Australian citizenship, is affirmed.
...............................[SGD].........................................
Deputy President J W Constance
CATCHWORDS
CITIZENSHIP – citizenship by conferral – whether special residence requirement relating to persons engaging in activities of benefit to Australia met – responsible parent – dependent children – where Tribunal not satisfied there is insufficient time for the Applicant to satisfy the general residence requirement in section 22 – separate consideration of dependent children’s applications – best interests of the child – where no significant hardship or disadvantage found – decisions under review affirmed
LEGISLATION
Australian Citizenship Act 2007 (Cth) ss 3, 21, 22A, 22C
SECONDARY MATERIALS
Citizenship Policy
Legislative Instrument IMMI 13/056
REASONS FOR DECISION
Deputy President J W Constance
29 June 2020
A. INTRODUCTION

The Applicant is a citizen of Tonga who has applied for Australian citizenship by conferral in accordance with the Australian Citizenship Act 2007 (Cth) (the Act). Included in her application are her two children, Applicant A and Applicant B, both under the age of 18 years. All three applications have been refused by a delegate of the Minister and the Applicant has applied to the Tribunal for a review of the delegate’s decision.
By reason of her absences from Australia during the four years before she applied, the Applicant does not meet the general residence requirements to be eligible for a grant of citizenship. This raises the question of whether the Applicant meets the special residence requirement relating to persons engaging in activities that are of benefit to Australia. This requirement is set out in section 22A of the Act.
For the reasons which follow I am not satisfied the Applicant and/or her children should be eligible for a grant of Australian citizenship and the decisions under review will be affirmed.
B. LEGISLATION
Subsection 21(2) of the Act provides:
(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.
Subsection 22A(1) provides:
(1)   Subject to this section, for the purposes of section 21 a person (the applicant) satisfies the special residence requirement if:
(a) the following apply:
(i)     the applicant is seeking to engage in an activity specified under subsection 22C(1);
(ii)     the applicant's engagement in that activity would be of benefit to Australia;
(iii)    the applicant needs to be an Australian citizen in order to engage in that activity;
(iv) in order for the applicant to engage in that activity, there is insufficient time for the applicant to satisfy the general residence requirement (see section 22); and
(b) the head of an organisation specified under subsection 22C(2), or a person whom the Minister is satisfied holds a senior position in that organisation, has given the Minister a notice in writing stating that the applicant has a reasonable prospect of being engaged in that activity; and
(c)   the applicant was present in Australia for a total of at least 180 days during the period of 2 years immediately before the day the applicant made the application; and
(d) the applicant was present in Australia for a total of at least 90 days during the period of 12 months immediately before the day the applicant made the application; and
(e) the applicant was ordinarily resident in Australia throughout the period of 2 years immediately before the day the applicant made the application; and
(f) the applicant was a permanent resident for the period of 2 years immediately before the day the applicant made the application; and
(g)   the applicant was not present in Australia as an unlawful non-citizen at any time during the period of 2 years immediately before the day the applicant made the application.
In the exercise of a power given by section 22C, the Minister has made Legislative Instrument IMMI 13/056 which provides, in part:
Schedule A – Activities specified for the purposes of subparagraph 22A(1)(a)(i) of the Act
1. Employment in a position which requires a Negative Vetting 2 or higher security clearance in a Department, an Executive Agency, or a Statutory Agency of the Commonwealth.
…
Schedule B – Organisations specified for the purposes of paragraph 22A(1)(b) of the Act
1. A Department, an Executive Agency, or a Statutory Agency of the Commonwealth;
…
Ordinarily resident is defined in section 3 of the Act as follows:
Ordinarily resident: a person is taken to be ordinarily resident in a country if and only if:
(a) he or she has his or her home in that country; or
(b) that country is the country of his or her permanent abode even if he or she is temporarily absent from that country.
However, the person is not taken to be so resident if he or she resides in that country for a special or temporary purpose only.
Legislation particularly relevant to the children will be included later in these reasons.
PART 1
APPLICATION 2019/2953
APPLICATION OF THE APPLICANT (RESPONSIBLE PARENT)
C. FACTS
Unless stated otherwise the following findings of fact are based on the evidence of the Applicant. She gave evidence at the hearing during which she affirmed the accuracy of the information set out in her application for citizenship[1] and the accompanying Identity Declaration.[2] I am satisfied that she was an honest witness who gave her evidence to the best of her recollection.
[1] Exhibit R1, 40.
[2] Exhibit R1, 70.
The Applicant was born in 1980 in Tonga and is a citizen of that country. She first came to Australia when she was seven or eight years old and attended school in this country. Since that time she has lived in either Australia or Tonga.
On 26 April 2018 the Applicant lodged an application for Australian citizenship by conferral in which she stated that she was relying upon the special residence requirement.[3]
[3] Exhibit R1, 44.
The Applicant has been working as a contractor to the Department of Foreign Affairs and Trade since 2017. Her contract has been extended on three occasions. Her current contract expires on 30 June 2020 and she has been told it will not be further extended.
The Applicant is contracted to work at Australian Public Service level 6. She has been unable to perform all the duties normally associated with work at that level as she does not hold the appropriate security clearance. She cannot apply for such a clearance as she is not an Australian citizen.
The Applicant has worked for two Departments in Australia and for the Australian High Commission in Tonga. All her work experience has been in the government sector. She continues to seek work in the Australian Public Service. To apply for casual or ongoing employment in the Service she needs to be an Australian citizen.
On 17 April 2018, the Deputy Director of the section the Applicant is currently employed in at the Department of Foreign Affairs and Trade, provided a letter in the following terms:
To Whom It May Concern:
RE: Requirement for Negative Vetting 2 for [the Applicant]
This is to confirm that [the Applicant] is seconded to the Department of Foreign Affairs and Trade’s [redacted], and required Negative Vetting 2 as part of her current role.
[The Applicant] has worked for the Department of Foreign Affairs and Trade (DFAT) as a contractor since December 2017. In March 2017, this role was novated and is now managed through DFAT’s Innovation Resource Facility (managed by AECOM Services Pty Ltd).
Duties required under this role include managing DFAT internal communications, liaisons with the Foreign Ministers Office and related briefing, cables and public diplomacy, in addition to the production and negotiation of sensitive documents. As with all secondees under the IRF, this role requires Negative Vetting 2 security clearance to enable the fulfilment of the roles requirements.
We believe that [the Applicant] possesses unique capabilities and skills relevant to this role and to the core work of DFAT’s [redacted]. As such, the [redacted] will support and seek opportunities for her ongoing employment.
Please note that our preference is to seek Negative vetting 2 at the earliest opportunity possible, her current application for citizenship pending.
Please do not hesitate to contact me should you require anything further.[4]
[4] Exhibit R1, 83.
On 20 May 2019 a delegate of the Minister refused the Applicant’s application for citizenship.[5]
[5] Exhibit R1, 34.
D. ISSUE FOR CONSIDERATION
I have to decide whether the Applicant satisfies the special residence requirement set out in subsection 22A(1) of the Act.
E. REASONING
E1: Is the Applicant seeking to engage in an activity specified under subsection 22C(1)?
One of the specified activities is a position in the employment of a Department of the Commonwealth which requires a Negative Vetting 2 (or higher) security clearance.
It is argued on behalf of the Minister that “[in] circumstances where the applicant has been working with DFAT in the same role since December 2017, without an NV2 or higher security clearance … it could not be said that the role requires an NV2 or higher security clearance.”[6]It is argued further that there is no evidence that the Applicant is seeking to engage in such activity and that her application for citizenship is not directed towards any specific or identified role within the Department.[7]
[6] Respondent’s Statement of Facts, Issues and Contentions dated 24 January 2020, [42].
[7] Respondent’s Statement of Facts, Issues and Contentions dated 24 January 2020, [42]-[44].
On the basis of the evidence of the Applicant I am satisfied that she is seeking employment in an ongoing APS6 position in the Department of Foreign Affairs and Trade, being a position similar to that which she is presently contracted to fill.
In her application the Applicant did not make it clear that she was seeking an ongoing APS6 role in the section in which she is presently contracted or that such an NV2 clearance was required to fulfil all the duties of that role. However, on the basis of the evidence given by her at the hearing I am satisfied this is the position she now seeks, bearing in mind that her contracted position is about to come to an end.
I agree with the Minister’s argument that the Applicant’s present position does not require a security clearance, but that position is one established by her contract, a position with lesser requirements than an ongoing APS6 position in the section of the Department in which the Applicant currently works. Although the letter from the Deputy Director is now over two years old I am satisfied that a role such as that sought by the Applicant does require a NV2 security clearance.
E2: Would the Applicant’s engagement in the activity be of benefit to Australia?
The Minister concedes that if the requirements of subparagraph 22A(1)(a)(i) are met, this requirement is met also. Based on the evidence of the Applicant that she has worked in her current role since December 2017 and the description of that role by the Deputy Director, I am satisfied that this is a proper concession.
E3: Does the Applicant need to be an Australian citizen to engage in the activity?
It is argued by the Minister that clearly the Applicant does not require Australian citizenship to perform her present role as she has been performing that role since December 2017.[8] However the activity under consideration is an ongoing APS6 role requiring security clearance. Section 22 of the Public Service Act 1999 (Cth) requires Australian citizenship for ongoing Public Service employment.
E4: Is there insufficient time for the Applicant to satisfy the general residence requirement in section 22?
[8] Respondent’s Statement of Facts, Issues and Contentions dated 24 January 2020, [46]-[47].
On the basis of the Applicant’s evidence I am satisfied that her existing contract will come to an end and that she will not be offered an extension of that contract. While I accept the Applicant’s evidence that she wishes to obtain an ongoing position, there is insufficient evidence to establish that she has applied for a particular position which would be offered to her if she was an Australian citizen.
I cannot be satisfied the Applicant will have insufficient time to satisfy the general residence requirement and become an Australian citizen before a position such as she seeks becomes available to her.
As the Applicant must satisfy all the requirements of section 22A to meet the special residence requirement it is unnecessary to consider the further provisions of the section. However, in case I am wrong in the conclusion I have reached, I will do so.
E5: Has an appropriate person given the Minister written notice that the Applicant has a reasonable prospect of being engaged in the activity?
The letter referred to at paragraph 17 of these reasons was prepared by the Deputy Director of the section in which the Applicant is currently employed, a section of only ten people within the Department. The Applicant gave evidence that on 17 April 2018 there was a vacancy in the senior position and that she did not wish to again approach the Department for a letter setting out her prospects of being engaged in an ongoing position.
In view of the Applicant’s evidence as to the position she seeks, subsection 22A(1)(b), section 22C and IMMI 13/056 read together require the notice to be given by;
(a)the Head of a Government Department, an Executive Agency or a Statutory Agency; or
(b)a person whom the Minister (in this case the Tribunal) is satisfied holds a senior position within the Department.
I do not have sufficient evidence to be satisfied that at the time she gave the notice the Deputy Director held a senior position within the Department. The Applicant acknowledged that at the time the senior level was vacant.
I have reached this conclusion with regard to the Citizenship Policy which provides, in part, that “for the purposes of s22A(1)(b), a holder of a senior position in a Commonwealth agency should be at SES Band 2 level or above.’[9]This provision supports the conclusion that the evidence does not establish that the Deputy Director held a senior position as required by the Act.
E6: Was the Applicant present in Australia for the periods required by paragraphs 22A(1)(c) and 22A(1)(d)?
[9] Exhibit R1, 309.
Based on the Applicant’s movement records[10] I am satisfied that these requirements are met. This is accepted by the Minister.[11]
E7: Was the Applicant ordinarily resident in Australia throughout the period of two years immediately before the date she made the application for citizenship (26 April 2018)?
[10] Exhibit R1, 378-382.
[11] Respondent’s Statement of Facts, Issues and Contentions dated 24 January 2020, [52]-[53].
Further findings of fact
During the five years immediately prior to 26 April 2016 the Applicant was present in Australia for the following periods:

Arrival Departure Number of days in Australia

24 September 2011 27 September 2011 3

1 December 2011 3 January 2012 34

19 March 2012 27 March 2012 9

4 June 2013 12 June 2013 9

3 July 2014 14 July 2014 12

9 December 2014 8 January 2015 31

5 May 2015 13 May 2015 9

3 December 2015 20 January 2016 49

TOTAL 156

This Table is reproduced from the Respondent’s Statement of Facts, Issues and Contentions dated 24 January 2020.[12] I am satisfied from the Applicant’s movement records that this summary is correct.
[12] Respondent’s Statement of Facts, Issues and Contentions dated 24 January 2020, [58].
Between 26 April 2016 and 11 October 2016 (a period of 172 days) the Applicant was present in Australia for only nine days.[13] For the remainder of the period she was in Tonga for “work, study or training”.[14]
[13] Exhibit R1, 378-382.
[14] Exhibit R1, 57.
When she was not in Australia during the seven years prior to 26 April 2016, the Applicant was in Tonga.[15]
[15] Exhibit R1, 57.
In a statement provided to the Department the Applicant stated that:
After having resigned from my position within the Australian High Commission, I fully migrated with the children into Australia in November (my husband had preceded us).[16]
[16] Exhibit R1, 21.
When she gave evidence, the Applicant said that her resignation and full migration to Australia took place in 2016.
The Applicant provided to the Department several documents relating to household expenses incurred by herself and her husband in Australia. These include:
·a residential tenancy agreement entered in to by herself and her husband for a tenancy commencing on 21 February 2017;[17]
·school expenses for her children commencing from 14 December 2016;[18]
·a record of private health insurance taken out by the Applicant in Australia during the 2016-2017 financial year, which was for a period of 261 days;[19] and
·a letter confirming that the Applicant registered for Centrelink self-service on 30 November 2016.[20]
[17] Exhibit R1, 154-164.
[18] Exhibit R1, 110-113.
[19] Exhibit R1, 108.
[20] Exhibit R1, 226.
These documents were attached to a statutory declaration made by the Applicant on 24 October 2018 in which she stated that she had been “a resident of Australia for the past two years.”[21]
[21] Exhibit R1, 104.
Reasoning
The Minister accepts that the Applicant was ordinarily resident in Australia from 11 October 2016. On that date the Applicant entered Australia from Tonga. However, the Minister argues that between 26 April 2016 and 11 October 2016 she was not ordinarily resident here.
The definition of ordinarily resident requires that one or both of only two provisions must be met for the Applicant to be found to have been ordinarily resident in Australia during the period 26 April 2016 to 11 October 2016. If I am not satisfied that she was ordinarily resident in Australia during that period she does not satisfy the requirement that she was “ordinarily resident in Australia throughout the period of 2 years immediately before” 26 April 2018, the day on which she made her application for citizenship.

The Applicant was present in Australia for only nine days between 26 April 2016 and 11 October 2016. For the remainder of the period she was living with her two children and her husband in Tonga, her country of birth and from which she holds citizenship. Based on this finding I am satisfied that she had her home in Tonga and not in Australia.
This conclusion is supported by the documents provided by the Applicant in support of her contention that she was ordinarily resident in Australia for the two years immediately prior to 24 October 2018. These documents support an inference that the Applicant established her home in Australia after she travelled to Australia from Tonga in October 2016 and not before.
The Applicant spent only 156 days in Australia in the five years prior to 26 April 2016. Most of the remaining time was spent living and working in Tonga. There was no pattern of residing in Australia on a permanent basis at any time since 2011. For this reason I am not satisfied that, during the period 26 April 2016 and 11 October 2016, Australia was her permanent abode and that she was only temporarily absent from this country as, for most of the preceding five years, the Applicant was residing outside Australia.
I have considered the statement of [redacted] made 22 October 2018.[22]
[22] Exhibit R1, 107.
[Redacted] stated that from April 2016 until February 2017 the Applicant, her husband and their children “ordinarily resided” with himself and his family at an address in New South Wales. [Redacted] did not provide any facts in support of this statement and did not give evidence at the hearing. His statement was made in the terms of the legal issue I have to determine in this application and is not supported by the facts to which I have referred earlier in these reasons. Further, the Applicant’s husband spent only 26 days in Australia in the period referred to.[23] The children were not in Australia at all for the majority of this period.[24] I do not place significant weight on the statement.
[23] Exhibit R1, 383-388.
[24] Exhibit R1, 393-396.
I am not satisfied that the Applicant was ordinarily resident in Australia for the period of two years immediately prior to the date on which she made her application for citizenship.
E8: Was the Applicant a permanent resident of Australia for the period of two years immediately before the date on which she made the application for citizenship?
It is not in dispute that the Applicant meets this requirement.
E9: Was the Applicant present in Australia as an unlawful non-citizen at any time during the period of two years immediately before the date on which she made the application for citizenship?
It is not in dispute that the Applicant was not so present and therefore meets the requirements of paragraph 22A(1)(g) of the Act.
F. CONCLUSION
For the reasons set out I am not satisfied that the Applicant meets the requirements of paragraphs (a), (b) and (e) of subsection 22A(1) of the Act and therefore she does not satisfy the special residence requirement.
The decision made 20 May 2019 to refuse the Applicant’s application for Australian citizenship will be affirmed.
PART 2
DECISION RECORD: APPLICATION 2019/4724 (APPLICANT A)
G: ADDITIONAL FACTS
Applicant A was born in Australia; he is 15 years old. He is the child of the Applicant and her husband and has always resided with his parents in either Tonga or Australia.
Applicant A is a citizen of Tonga, having acquired his citizenship by descent from his parents. He holds a permanent resident visa and has resided in Australia continuously since October 2016. At that time the family migrated from Tonga to Australia and it is the intention of his parents that Australia will remain their permanent home. He is attending school in Australia where he is enrolled in Year 9.
The Principal of the school attended by Applicant A provided a statement dated 14 February 2020.[25] It reads, in part:
Since 2016, our school has taken the Year 10 students to a mission trip to Cambodia each year (with the exception of this year due to the coronavirus outbreak). We are hoping that next year, we will be able to continue to do this and [Applicant A] will be able to take part in this exciting program.
[25] Exhibit A1.
The Applicant gave evidence that if her son, Applicant A, is not granted Australian citizenship:
(i)he would be unable to take part in school excursions outside Australia;
(ii)he would be unable to travel overseas to holiday with his parents;
(iii)he will be considered a citizen of Tonga notwithstanding that he was born in Australia;
(iv)she and her husband will not be able to afford to pay for another resident return visa or to renew his Tongan passport.
H. LEGISLATION AND POLICY
The Act
Subsection 21(5) of the Act provides:
(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.
Citizenship Policy
The Policy relevantly provides:
Person aged under 18 years (s21(5))
…
Best interests of the child
The best interests of the child are to be considered as one of the primary considerations when addressing the application. This consideration only applies if the child is or would be under 18 at the time of decision on the application and the child is living in Australia…
Applicants under the age of 16 (s21(5))
A child aged under 16 can make an individual application in their own right (by applying on a form that contains no other application) or on the same form and at the same time as a responsible parent…
In the case of an applicant who does not meet the policy guidelines in this chapter, decision makers must consider the full circumstances of the case, including the best interests of the child, to determine whether the application nevertheless warrants approval because of the unusual nature of those circumstances.
If an applicant is under 16 a responsible parent is to sign the application form.
Children under 16 applying individually in their own right
Children under 16 applying individually in their own right would usually not be approved under s24 unless they are permanent residents at the time of application and decision and under policy also are:
oUnder 16 when applying and living with a responsible parent who is an Australian citizen and who consents to the application or
oUsually resident in Australia with a permanent resident responsible parents who 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
oUnder 16 when applying, 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…or
oAn unaccompanied humanitarian minor who falls under the Minister’s guardianship and a delegated guardian has consented to the application…or
oAn unaccompanied humanitarian minor who does not fall under the Minister’s guardianship and their responsible carer has consented to the application…
Consideration must also be given to whether there is a prohibition to approval.
Children under 16 applying on the same form and at the same time as a responsible parent
Children under 16 applying on the same form and at the same time as a responsible parent would usually not be approved under s24 unless they are permanent residents at the time of application and decision and also:
oBe living in Australia with the relevant responsible parent and
oThe relevant responsible parent consented to the inclusion of the child in their application.
Consideration also must be given to whether there is a prohibition to approval…
Note: Decision makers must make a separate decision record for each applicant included on the application if the application is to be refused.
Note: If a child under 16 applies on the same form and at the same time as a responsible parent, and that parent is refused, the child must be assessed in their own right.
What are the best interests of the child
Definition of best interest of the child
The meaning of ‘best interests of the child’ is not defined, but is informed, in part, by the principles in the CROC. The factors that are most likely to be relevant to citizenship decisions are:
…
Significant hardship or disadvantage / detriment
In making an assessment of whether a person would suffer significant hardship or detriment / disadvantage, the words have their usual dictionary meaning. The Macquarie Dictionary Fifth Edition makes the following definitions:
osignificant - important; of consequence
ohardship - a condition that bears hard upon one; severe toil, trial, oppression, or need
odisadvantage - absence or deprivation of advantage; any unfavourable circumstance or condition
odetriment - loss, damage, or injury
oeconomic - relating to the production, distribution, and use of income and wealth.
I. CONSIDERATION (APPLICANT A)
As I have decided that the Applicant’s application for citizenship should be refused I am required to assess Applicant A in his own right. As he was under 16 when the application for citizenship was made and lives with a responsible parent who is not an Australian citizen and consents to the application, it is necessary to consider whether he would “otherwise suffer significant hardship or disadvantage”.
Taking into account the policy guidelines referring to significant hardship or disadvantage I have concluded that the potential effects on Applicant A as described by the Applicant would not cause him significant hardship or significant disadvantage.
I agree with the argument put on behalf of the Minister that the failure of Applicant A to be granted citizenship would not prevent his travelling overseas. He can do so using his Tongan passport. Any difficulty which may arise from his ceasing to hold this passport would arise from the financial situation of his parent rather than his lack of Australian citizenship. Even if he was an Australian citizen his parent would still incur the expense of obtaining an Australian passport for him if he wished to travel overseas.
There is no evidence before me to explain the nature of any difficulty or hardship which would be caused to Applicant A by being considered a citizen of Tonga even though he was born in Australia.
I am also required to take into account the best interests of Applicant A as a child under the age of 18 years.
Australia is a signatory to the Convention on the Rights of the Child. Article 3.1 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.
As a permanent resident Applicant A is entitled to remain in Australia indefinitely and continue to benefit from Australia’s education, health and welfare systems and exercise freedom of religion. He continues to have the benefit of living in his close family unit.
Having considered the factors set out in the Policy I am satisfied that the best interests of Applicant A do not cause me to conclude that he should be granted citizenship at this time. There is nothing unusual in the circumstances of this application to warrant approval.
PART 3
DECISION RECORD: APPLICATION 2019/4725 (APPLICANT B)
The evidence adduced and arguments put on behalf of each of the children varied only slightly. I have reproduced the reasoning set out in relation to Applicant A to comply with the policy that there should be a separate decision record for each child applicant included in an application by a responsible parent.
J. ADDITIONAL FACTS
Applicant B was born in Australia; he is 11 years old. He is the child of the Applicant and her husband and has always resided with his parents in either Tonga or Australia.
Applicant B is a citizen of Tonga, having acquired his citizenship by descent from his parents. He holds a permanent resident visa and has resided in Australia continuously since October 2016. At that time the family migrated from Tonga to Australia and it is the intention of his parents that Australia will remain their permanent home. He is attending school in Australia where he is enrolled in Year 6.
The Applicant gave evidence that if her son, Applicant B, is not granted Australian citizenship:
(i)he would be unable to take part in school excursions outside Australia;
(ii)he would be unable to travel overseas to holiday with his parents;
(iii)he will be considered a citizen of Tonga notwithstanding that he was born in Australia;
(iv)she and her husband will not be able to afford to pay for another resident return visa or to renew his Tongan passport.
K. LEGISLATION AND POLICY
The Act
Subsection 21(5) of the Act provides:
Person aged under 18 years (s21(5))
…
Best interests of the child
The best interests of the child are to be considered as one of the primary considerations when addressing the application. This consideration only applies if the child is or would be under 18 at the time of decision on the application and the child is living in Australia…
Citizenship Policy
The Policy relevantly provides:
Applicants under the age of 16 (s21(5))
A child aged under 16 can make an individual application in their own right (by applying on a form that contains no other application) or on the same form and at the same time as a responsible parent…
In the case of an applicant who does not meet the policy guidelines in this chapter, decision makers must consider the full circumstances of the case, including the best interests of the child, to determine whether the application nevertheless warrants approval because of the unusual nature of those circumstances.
If an applicant is under 16 a responsible parent is to sign the application form.
Children under 16 applying individually in their own right
Children under 16 applying individually in their own right would usually not be approved under s24 unless they are permanent residents at the time of application and decision and under policy also are:
oUnder 16 when applying and living with a responsible parent who is an Australian citizen and who consents to the application or
oUsually resident in Australia with a permanent resident responsible parents who 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
oUnder 16 when applying, 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…or
oAn unaccompanied humanitarian minor who falls under the Minister’s guardianship and a delegated guardian has consented to the application…or
oAn unaccompanied humanitarian minor who does not fall under the Minister’s guardianship and their responsible carer has consented to the application…
Consideration must also be given to whether there is a prohibition to approval.
Children under 16 applying on the same form and at the same time as a responsible parent
Children under 16 applying on the same form and at the same time as a responsible parent would usually not be approved under s24 unless they are permanent residents at the time of application and decision and also:
oBe living in Australia with the relevant responsible parent and
oThe relevant responsible parent consented to the inclusion of the child in their application.
Consideration also must be given to whether there is a prohibition to approval…
Note: Decision makers must make a separate decision record for each applicant included on the application if the application is to be refused.
Note: If a child under 16 applies on the same form and at the same time as a responsible parent, and that parent is refused, the child must be assessed in their own right.
What are the best interests of the child
Definition of best interest of the child
The meaning of ‘best interests of the child’ is not defined, but is informed, in part, by the principles in the CROC. The factors that are most likely to be relevant to citizenship decisions are:
…
Significant hardship or disadvantage / detriment
In making an assessment of whether a person would suffer significant hardship or detriment / disadvantage, the words have their usual dictionary meaning. The Macquarie Dictionary Fifth Edition makes the following definitions:
osignificant - important; of consequence
ohardship - a condition that bears hard upon one; severe toil, trial, oppression, or need
odisadvantage - absence or deprivation of advantage; any unfavourable circumstance or condition
odetriment - loss, damage, or injury
oeconomic - relating to the production, distribution, and use of income and wealth.
L. CONSIDERATION (APPLICANT B)
As I have decided that the Applicant’s application for citizenship should be refused I am required to assess Applicant B in his own right. As he was under 16 when the application for citizenship was made and lives with a responsible parent who is not an Australian citizen and consents to the application, it is necessary to consider whether he would “otherwise suffer significant hardship or disadvantage”.
Taking into account the policy guidelines referring to significant hardship or disadvantage I have concluded that the potential effects on Applicant B as described by the Applicant would not cause him significant hardship or significant disadvantage.
I agree with the argument put on behalf of the Minister that the failure of Applicant B to be granted citizenship would not prevent his travelling overseas. He can do so using his Tongan passport. Any difficulty which may arise from his ceasing to hold this passport would arise from the financial situation of his parent rather than his lack of Australian citizenship. Even if he was an Australian citizen his parent would still incur the expense of obtaining an Australian passport for him if he wished to travel overseas.
There is no evidence before me to explain the nature of any difficulty or hardship which would be caused to Applicant B by being considered a citizen of Tonga even though he was born in Australia.
I am also required to take into account the best interests of Applicant B as a child under the age of 18 years.
Australia is a signatory to the Convention on the Rights of the Child. Article 3.1 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.
As a permanent resident Applicant B is entitled to remain in Australia indefinitely and continue to benefit from Australia’s education, health and welfare systems and exercise freedom of religion. He continues to have the benefit of living in his close family unit.
Having considered the factors set out in the Policy I am satisfied that the best interests of Applicant B do not cause me to conclude that he should be granted citizenship at this time. There is nothing unusual in the circumstances of this application to warrant approval.
PART 4
CONCLUSION
Application 2019/2953
The decision of a delegate of the Minister for Home Affairs, made 19 May 2019, to refuse the Applicant’s application for Australian citizenship, will be affirmed.
Application 2019/4724

The decision of a delegate of the Minister for Home Affairs, made 19 May 2019, to refuse the Applicant’s application for Australian citizenship, will be affirmed.
Application 2019/4725
The decision of a delegate of the Minister for Home Affairs, made 19 May 2019, to refuse the Applicant’s application for Australian citizenship, will be affirmed.

I certify that the preceding 83 (eighty-three) paragraphs are a true copy of the reasons for the decision herein of Deputy President J W Constance

.................................[SGD].......................................
Associate
Dated: 29 June 2020

Date(s) of hearing: 17 March 2020

Applicant: In person

Solicitors for the Respondent: C Burke, Sparke Helmore

[2020] AATA 1994

29 June 2020

Key Legal Topics

Areas of Law

Immigration

Statutory Interpretation

Administrative Law

Legal Concepts

Judicial Review

Natural Justice

Procedural Fairness

Statutory Construction

Standing

Arrival	Departure	Number of days in Australia
24 September 2011	27 September 2011	3
1 December 2011	3 January 2012	34
19 March 2012	27 March 2012	9
4 June 2013	12 June 2013	9
3 July 2014	14 July 2014	12
9 December 2014	8 January 2015	31
5 May 2015	13 May 2015	9
3 December 2015	20 January 2016	49
TOTAL	156

Date(s) of hearing:	17 March 2020
Applicant:	In person
Solicitors for the Respondent:	C Burke, Sparke Helmore