Yuan and Minister for Immigration and Multicultural Affairs (Citizenship)

[2025] ARTA 988

Yuan and Minister for Immigration and Multicultural Affairs (Citizenship) [2025] ARTA 988 (22 May 2025)

Applicant/s:  Yi Jie Yuan

KPFC

Respondent:  Minister for Immigration and Multicultural Affairs

Tribunal Number:                2024/6535

2024/6753

Tribunal:General Member S. Evans

Place:Sydney

Date:22 May 2025

Decision:The Tribunal affirms the decision under review.

...........................[SGD].............................................

General Member S. Evans

Catchwords

CITIZENSHIP – application for citizenship by conferral – refusal of citizenship - residence requirement not met – unlawful non-citizen – dual citizen – eligible for 444 visa – entered on passport with time limited visa – discretion to refuse dependent - decision affirmed

Legislation

Australian Citizenship Act 2007 (Cth)

Cases

Drake and Minister for Immigration, and Ethnic Affairs (No. 2) (1979) 2 ALD 634, 645 Minister for Immigration, Local Government and Ethnic Affairs v Gray (1994) 33 ALD 13, 30

Secondary Materials

Department of Home Affairs, Australian Citizenship [Policy Statement] (reissued 27 November 2020)
Citizenship Procedural Instructions - Residence Requirements and Discretions

United National Convention on the Rights of the Child

Statement of Reasons

INTRODUCTION

1. Yi Jie Yuan (the Applicant) and her daughter (KPFC) are dual citizens of Singapore and New Zealand. On 22 November 2023, the Applicant lodged an application for Australian citizenship by conferral and KPFC was included as a dependent.

2. On 27 August 2024, a delegate of the Minister for Immigration and Multicultural Affairs (the Respondent) refused to grant the application for citizenship as they were not satisfied the Applicant met the general eligibility requirement in paragraph 21(2)(c) of the Australian Citizenship Act (2007) (the Act). Having regard to departmental records, the delegate found that the Applicant was an unlawful non-citizen in Australia between 3 March 2022 and 2 June 2022 (the unlawful period). As the unlawful period fell within the four-year period immediately before she applied for citizenship, the delegate determined the Applicant did not satisfy the general residence requirement as she did not meet the criteria in paragraph 22(1)(b) of the Act. The delegate also decided to exercise the discretion provided by subsection 24(2) to refuse to approve KPFC’s application for citizenship.

3. The Applicant seeks review of the decision to refuse her and her daughter’s applications for citizenship. For the reasons that follow, the reviewable decisions will be affirmed.

   RELEVANT LEGISLATION AND POLICY

4. Subsection 21(1) of the Act provides that a person may make an application to the Minister to become an Australian citizen. Subsection 21(2) sets out the general eligibility requirements to become an Australian citizen. Paragraph 21(2)(c) provides that the person is required to satisfy the general residence requirement or the special residence requirement. Relevant to this matter, subsection 22(1) sets out the requirements to meet 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.

5. Section 22 of the Act provides discretion to waive the general residence requirement in certain circumstances. Subsection 22(4A) provides that a person who is present in Australia as an unlawful non-citizen for a period of time and that period of unlawfulness was the result of administrative error, the Minister may treat that period as one in which that person was not present in Australia as an unlawful noncitizen for the purposes of paragraph 22(1)(b) of the Act.

6. Guidance for decision makers considering an application for citizenship is provided by the Australian Citizenship Policy Statement (Policy Statement) and the Revised Citizenship Procedural Instructions (CPI). The Tribunal is not bound by departmental policy including the CPIs, but policy will usually be applied in the absence of cogent reasons not to.[1]

   [1] See Re Drake and Minister for Immigration, and Ethnic Affairs (No. 2) (1979) 2 ALD 634, 645 per Brennan J, which was cited with approval in Minister for Immigration, Local Government and Ethnic Affairs v Gray (1994) 33 ALD 13, 30 per French and Drummond JJ.

7. CPI 8 - Residence Requirements and Discretions provides policy guidance on exercising the ministerial discretions that may be applied to assist a person to meet the residence requirements for conferral of Australian citizenship.

8. Part 4.7.1 of CPI 8 provides guidance when exercising the discretion provided in subsection 22(4A) of the Act to treat a period as one in which a person was not present in Australia as an unlawful non-citizen due to administrative error. Two elements must be established. Firstly, the administrative error has occurred, and second the administrative error must be the reason why the applicant became unlawful. Administrative error is not defined in the Act or CPI, but examples of what may constitute administrative error are provided.  

9. Relevant to KPFC, subsection 21(5) of the Act provides that a person aged under 18 when they apply for citizenship is eligible to become an Australian citizen if the Minister is satisfied they are a permanent resident at the time of application or when the Minister’s decision is made.  

10. Subsection 24(2) of the Act provides that the Minister may refuse to approve a person becoming an Australian citizen despite the person being eligible to become an Australian citizen under subsection 21(5).  Policy guidance for decision-makers determining whether to exercise a discretion in section 24(2) of the Act is provided in CPI 4 – Australian Citizenship by Conferral – Person under 18.

11. CPI 4 states that applicants who are 15 years or under are expected to meet one of five categories and the policy provides distinct policy guidelines for each. Those categories are:

    (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 and living with a responsible parent who is a permanent resident and who consents to the application; this policy only relates to situations where the responsible parent permanent resident is expected to meet the general residence requirements under section 21(2) of the Act and is not applying 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 who consents to the application; or

    (d)usually resident overseas and living with a responsible parent who is an Australian citizen and who consents to the application. In this situation, delegate’s must assess 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; or

    (e)an unaccompanied humanitarian minor who falls under the Minister’s guardianship.

    [emphasis added]

12. Where the policy guidelines in CPI 4 are not met, decision makers must consider whether the applicant would be subject to significant hardship or disadvantage before proceeding to refuse an application. CPIs 12 and 13 provide guidance to decision makers in assessing significant hardship, disadvantage or detriment for the purposes of Australian citizenship and the best interests of the child respectively.

    ISSUE TO BE DETERMINED

13. The issues to be determined are:

    (a)Whether the Applicant meets the residence requirement for grant of Australian citizenship; and if not

    (b)whether to exercise the discretion to refuse to approve KPFC’s application for citizenship.

    EVIDENCE

14. The Applicant and KPFC migrated from New Zealand to Australia in 2016. Movement records show the Applicant was granted a Special Category Visa (subclass 444) (SCV) on arrival in Australia on 31 December 2019.

15. In 2021, the Applicant’s father, who resides in Singapore, was diagnosed with a serious illness. The Applicant arranged temporary absence from her Australian employer so she could return to Singapore and provide care and support for her elderly father during medical treatment.

16. The Applicant departed Australia for Singapore on 18 August 2021 using her Singapore passport. The Applicant recalls being questioned by Australian Border Force (ABF) officers when they noticed the visa in her Singapore passport was ‘invalid’. The Applicant explained to the officers that she also held a New Zealand passport, which she assumed would allow her to continue to reside in Australia. The Applicant said the officers took copies of her Singapore passport, Singapore national identity card and New Zealand passport. She recalls the officer ‘updated the system’ and told her she was free to go.

17. In November 2021, the Applicant’s father completed his treatment. The Applicant made plans to return to Australia and booked a return flight using her Singapore passport. The Applicant applied for and was granted a Subclass 601 Electronic Travel Authority (ETA) visa on 28 November 2021. [2] The Applicant arrived in Australia from Singapore on the ETA on 3 December 2021.[3] The ETA entitled her to stay in Australia for 90 days from the date of her arrival; that is until 3 March 2022. The Applicant says when she re-entered Australia, she ‘assumed the system’ would have known she held both a Singapore and a New Zealand passport as both were collected and inspected by the ABF officers when she departed Australia in August 2021.

    [2] T9 p 80

    [3] T10 p 83

    CONSIDERATION

18. The 90-day ETA expired on 3 March 2022 and the Applicant departed Australia on 2 June 2022. It follows that the Applicant was unlawfully in Australia between 3 March 2022 and 2 June 2022.  

19. The Respondent submits that because of the unlawful period, the Applicant was present in Australia as an unlawful non-citizen during the four years immediately prior to lodging her citizenship application and cannot satisfy paragraph 22(1)(b) of the Act. Because the requirements in subsection 22(1) are cumulative, the Applicant cannot satisfy the general residence requirement.  

20. The Applicant does not dispute that the ETA entitled her to a 90 day stay in Australia. However, she understood her New Zealand citizenship ‘supersedes the requirements’ and she was permitted to remain past 90 days as she held an SCV.[4] The Applicant contends that if she was in Australia as an unlawful non-citizen, it was on account of the failure of the Respondent to have linked or connected her Singapore and New Zealand passports.   

    [4] T1 p 6

21. Further, she contends she was not provided the ‘appropriate education’ by ABF officers who questioned her about her visa status when she departed Australia on 18 August 2021. Consequently, she continued to assume her New Zealand passport would allow her to remain lawfully in Australia irrespective of the SCV validity. The Applicant argues that the officers had an obligation to explain she was required to enter Australia using her New Zealand passport in order to be issued a SCV.

22. On the uncontested facts, it is apparent that the Applicant would have been entitled to a SCV had she entered Australia using her New Zealand passport. The Applicant claims to have assumed she could enter Australia on her Singaporean passport and ‘the system’ would identify she held a New Zealand citizenship and ensure she was issued a SCV.

23. The undisputed facts are that the Applicant arrived in Australia holding a visa that expired on 3 March 2022. She departed Australia on 2 June 2022, meaning she was in Australia unlawfully between 3 March 2022 and 2 June 2022. Notwithstanding her eligibility for a visa which would allow her to remain in Australian indefinitely, it is incumbent upon the Applicant to manage her own visa status and to monitor her compliance with the conditions.

24. The discretion in section 22(4A) of the Act to treat a person as not having been present in Australia as an unlawful non-citizen only applies where an administrative error has caused a person to become an unlawful noncitizen for a period of time. The error must be the result of a mistake made by the administrative or executive arm of government.  

25. The Applicant now accepts that she was ‘ignorant and careless’ in respect of her stay obligations. She is aggrieved at having her application for citizenship denied in circumstances where she was eligible for a visa, had no intention of remaining in the country unlawfully, and had been caring for her father in Singapore. Irrespective of these circumstances, I do not accept the Applicant was erroneously deemed to have been an unlawful non-citizen such that the discretion provided under subsection 22(4A) of the Act applies.

26. There is no dispute that the unlawful period was within the 4 year period specified in subsection 22(1)(b) of the Act. Consequently, if find the Applicant does not meet the general residence requirement and is not eligible for grant of citizenship. 

27. The Applicant’s daughter, KPFC, is currently 16 years old and is considered a minor under subsection 21(5) of the Act. The Respondent accepts that KPFC satisfies the eligibility criteria in subsection 21(5) as a person applying for citizenship under 18 years of age. Accordingly, the sole issue for determination is whether the discretion in the subsection 24(2) should be exercised to refuse to approve KPFC’s application despite her satisfying the eligibility criteria for grant of Australian citizenship.

28. Having regard to CPI 4, KPFC falls into category (b) as she is resident in Australia and living with a responsible parent who is a permanent resident and who consents to the application. She does not satisfy any of the alternate situations for applicants aged 15 years or younger.

29. As I have determined that the Applicant does not meet the requirements for grant of citizenship, CPI 4 requires me to assess of whether KPFC would face significant hardship or disadvantage if she were not to become an Australian citizen at this time. At the hearing, the Applicant confirmed KPFC will continue to live with her in Australia. The Applicant submitted it was unfair that KPFC’s application was not approved because she does not meet the residence requirement and may be disenfranchised when she reaches voting age. She does not contend KPFC would face any hardship or disadvantage.

30. CPI 13 requires the Tribunal to consider the best interest of the applicant as a child, as provided for by the United National Convention on the Rights of the Child, when considering whether to exercise the discretion to refuse to approve KPFC citizenship.  If citizenship is refused, KPFC will remain an Australian permanent resident, and be able to access education, health and welfare services. She would remain covered by the same laws as Australian citizens and will be able to apply for citizenship in the future.

31. Having regard to the evidence and policy, I am satisfied that KPFC would not suffer disadvantage or significant hardship from the refusal of her citizenship application. 

    CONCLUSION

32. As the Applicant does not meet the Australian residence requirement or engage any of the specific Ministerial discretions in the legislation, the decision to refuse to approve her becoming an Australian citizen will be affirmed. Consequently, KPFC does not meet the policy requirements for grant of citizenship to applicants 15 years or younger. It follows that the decision to refuse KPFC becoming an Australian citizen pursuant to subsection 24(2) of the Act will also be affirmed.

    DECISION

33. For the reasons outlined above the reviewable decisions are affirmed.

Date(s) of hearing:	10 April 2025
Applicant:	Self-represented
Solicitors for the Respondent:	Anthony Westenberg