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

[2020] AATA 5940

YYJX and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Citizenship) [2020] AATA 5940 (3 December 2020)

Division:GENERAL DIVISION

File Number(s):      2020/1101

Re:YYJX  

APPLICANT

AndMinister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

RESPONDENT

DECISION

Tribunal:Member Kennedy

Date:3 December 2020

Place:Adelaide

The decision under review is set aside and the application for Australian citizenship by conferral is remitted to the Respondent with the direction that the applicant shall not be refused Australian citizenship by exercising the discretion in subsection 24(2) of the Australian Citizenship Act 2007 on the grounds that she does not satisfy the residence requirements provided for under policy.

.

Member Kennedy

Catchwords

IMMIGRATION AND CITIZENSHIP –  Application for Australian Citizenship – residence requirements – significant hardship or disadvantage – administrative error – border visa – subclass 155 visa – unlawful non-citizen – decision under review set aside and remitted.

Legislation

Australian Citizenship Act 2007

Cases

Drake v Minister for Immigration and Ethnic Affairs (1979) 24 ALR 577

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

Secondary Materials

Citizenship Policy

Citizenship Procedural Instructions

– Commonwealth Supported Places

REASONS FOR DECISION

Member Kennedy

3 December 2020

1. The applicant applied for a grant of Australian citizenship by conferral on 2 December 2019.  At that time she was 16 years old.  It is not in dispute that the applicant meets all the applicable eligibility criteria. 

2. A delegate of the Minister however decided to exercise a discretion in the citizenship law so as to refuse to grant the applicant citizenship.  Essentially, in the delegate’s view, the applicant did not meet residence requirements provided for in policy, and would not suffer significant hardship or disadvantage.  The delegate pointed to a period between 2 September 2016 and 14 November 2019 when the applicant was in Australia without a valid visa in effect.

3. The applicant has applied to the Tribunal for review of this decision.  On behalf of the applicant, it is argued that the applicant found herself in Australia without a valid visa in effect due to administrative error, and the applicant would suffer significant hardship or disadvantage by being refused a grant of citizenship because it would deprive her from taking up opportunities to represent Australia in competitive sports.

   The applicant’s relevant immigration history and the legislative framework

4. The applicant is a citizen of the United Kingdom, born in Elgin in Scotland.  Her family migrated to Australia upon the grant of class BN (subclass 136)  Skilled – Independent Migrant visas when the applicant was 5 years old.  That visa was a permanent visa that permitted the applicant and her family to travel to and enter Australia for a period of 5 years from grant.

5. The visa had ceased by the time the applicant and her family travelled back to the United Kingdom for a holiday in June of 2016.  It appears that the family had not appreciated that the visa had ceased and a Return (Residence) (class BB) (subclass 155) visa (subclass 155 visa) ought to have been arranged before travel for each member of the family.

6. The applicant and her mother, returned to Australia on 4 August 2016 without valid visas.  At the border, Departmental systems record that both were granted Class TA (subclass 773) border visas to allow entry (the border visas).  It is in issue whether the applicant’s mother, was made aware by Australian Border Force officials that a border visa had been granted to both herself and her daughter.

7. A purpose of the border visa is to allow a short period of time for persons who find themselves in such a predicament to regularise their immigration status.  The applicant’s mother did this by promptly applying for a subclass 155 visa on 15 August 2016.  That visa was granted to the applicant’s mother on 17 August 2016. 

8. No application was made for a grant of a subclass 155 visa by or on behalf of the applicant at that time.  The applicant’s border visa ceased on 1 September 2016.  From that time onwards until much more recently, the applicant’s status in Australia was therefore that of an ‘unlawful non-citizen’: she was a non-citizen in Australia without a valid visa in effect.

9. In September 2019 the applicant was offered an opportunity for selection in an Australian national sporting team.  I accept (albeit in the absence of documentary evidence) that the regulations of the sporting team in Australia require members of national teams to be Australian citizens and holders of Australian passports.  It appears that enquiries in this regard led to the applicant applying for and being granted a subclass 155 visa, and then lodging her application for a grant of Australian citizenship.

10. In the applicant’s case, the application for Australian citizenship relevantly falls to be determined by subsection 21(5) of the Australian Citizenship Act 2007 (the Act), subject to a residual discretion in subsection 24(2) of the Act.   

11. Subsection 21(5) is not in issue.  The applicant meets the only two criteria in that subsection.  She was under 18 years of age and a permanent resident (by virtue of the grant of the subclass 155 visa) at the time of her application (and will be a permanent resident at the time of any decision on the application).

12. It is necessary however toremain in section 21 of the Act for a moment.  For general eligibility (at subsection 21(2) of the Act) a person must also satisfy what is termed ‘the general residence requirement’ or one of a number of related requirements.  That requirement is legislatively defined at section 22, essentially to require a person to be present in Australia for a period of 4 years before the date of the citizenship application, and to be a permanent resident for the period of 12 months immediately before that day.  The general residence requirement specifically excludes a person who is in Australia as an unlawful non-citizen at any time during the 4-year period before the date of the citizenship application.

13. Subsection 22(4A) and 22(6), amongst other provisions, introduce discretion in respect of the general residence requirement.  The Minister may treat a period as one in which a person was not present in Australia, as an unlawful non-citizen  if the Minister considers the person was present in Australia as an unlawful non-citizen because of administrative error.  The Minister may also treat a period as one in which the person was present in Australia as a permanent resident if satisfied that the person will suffer significant hardship or disadvantage if the Minister does not do so.

14. The relevance of the general residence requirement and the associated ministerial discretions to the applicant’s application is not apparent from the text of the legislation itself.  Subsection 21(5) does not require the applicant to satisfy the general residence requirement.  It is argued by the Respondent that considerations of the general residence requirement and its associated discretions are drawn into the matter through the Department’s policy concerning a general and residual discretion not to grant citizenship despite a person otherwise being eligible, provided for at subsection 24(2) of the Act.  This provision creates what on the face of it appears to be a largely unfettered discretion to refuse to approve a person becoming an Australian citizen despite the person otherwise being eligible.

15. The role of Departmental policy in the Tribunal is well-established.  The Tribunal is not bound by Departmental policy in the same way that it is squarely bound by legislation.  The Tribunal “is not entitled to abdicate its function of determining whether the decision made was, on the material before the Tribunal, the correct or preferable one in favour of merely determining whether the decision conformed with whatever the relevant general government policy might be”[1].  However, decision makers charged with the responsibility of undertaking merits review ‘should generally apply ministerial policy unless the policy is unlawful or there are cogent reasons to the contrary’.[2]

    [1] Drake v Minister for Immigration and Ethnic Affairs (1979) 24 ALR 577 at 590 per Bowen CJ and Deane J

    [2] Re Drake and minister for Immigration and Ethnic Affairs(No 2) (1979) 2 ALD 634 at 633

16. The relevant policy is found in the ‘Citizenship Policy’, relevant extracts of which are before me.  The policy does not have legislative force.  I also have before me a document entitled the ‘Citizenship Procedural Instructions’.  That document largely reflects the Citizenship Policy.

17. Where, as in this case, the Citizenship Policy addresses a general and unfettered discretion, I consider that I must pay very careful regard to its terms and take care to follow the policy unless I have a cogent reason to depart from it.

18. On eligibility under subsection 21(5) of the Act, the Citizenship Policy states that such applications for applicants aged 16 or 17 would not usually be approved under section 24 unless the applicant is a permanent resident at the time of application and also satisfies ‘the residence requirements’.  I accept that this reference in the policy to the ‘residence requirements’ must refer to the ‘general residence requirements’ mentioned in the Act at section 22.  In this way, the Citizenship Policy unnecessarily restates the legislative requirement for permanent residence at the time of application, but then imposes additional policy criteria into eligibility for a grant of Australian citizenship in subsection 21(5) that the legislation itself does not impose.

19. I do not intend to suggest that the Citizenship Policy is relevantly unlawful, but I do intend to emphasise that I will have regard to the policy criteria concerning residence requirements on the basis that applications would not usually be approved without satisfying them.   I do not approach the application of the policy in relation to residence as if this matter was an application for the grant of citizenship under subsection 21(2) of the Act.  I do not impose the criteria in subsection 21(2) of the Act into subsection 21(5)  when the legislature itself did not see fit to do so, but accept that I should have regard to matters reflected in those  criteria as legitimate and lawful aspects of the Minister’s policy on the exercise of the discretion in subsection 24(2).

    Administrative error

20. An issue was argued in the hearing as to whether the circumstances surrounding the applicant’s re-entry into Australia, the grant of a border visa, and her subsequently not applying for a subclass 155 visa amounted to ‘administrative error’. 

21. Had the applicant applied for a grant of Australian citizenship under section 21(2) of the Act (which she did not), the question of whether the circumstances amounted to administrative error would have been directly relevant to the application of the general residence requirement provisions in the legislation.  Subsection 21(4A) of the Act permits the Minister to treat a period as one in which the person is not present in Australia as an unlawful non-citizen if the Minister considers the person was present in Australia as an unlawful non-citizen because of an administrative error.  Subsection 21(5) creates a similarly worded discretion  but in relation to a person’s status as a permanent resident. 

22. Given these provisions exist for the purpose of applying the general residence requirement, I accept that such matters are also legitimate areas of consideration for the general discretion in subsection 24(2) with which I am concerned.  The issue has relevance to the applicant’s application through the Citizenship Policy in relation to the discretion to refuse citizenship despite a person being otherwise eligible, and the policy-based expectation that applications would not usually be approved without satisfying the residence requirements.

23. The applicant’s mother gave evidence that upon her return to Australia when it was identified that she did not hold a valid visa, she was taken aside at passport control.  The applicant’s mother described being given paperwork concerning the grant of the border visa, along with an explanation that she must immediately takes steps through the Department to regularise her status.  The applicant’s mother was adamant in her evidence that she was only given a letter of grant in relation to herself, and no letter of grant was given to her for her daughter, the applicant, who was accompanying her at the time. The applicant’s mother said that she was told that the applicant was included on her visa.

24. As mentioned above, the applicant’s mother did promptly lodge an application for a subclass 155 visa for herself but did not do so for her daughter.  The applicant’s mother argued at the hearing that her actions in this regard corroborate her recollection of what transpired at the airport because there was otherwise no good reason why she would have applied for a visa for herself but not for her daughter.  The applicant’s mother persuasively asserts that she would have readily and easily lodged an application for her daughter had she known it was required.

25. Records from Departmental systems categorically show that the applicant was in fact granted a border visa at the same time as the applicant’s mother.  I hesitate to be satisfied that the applicant’s mother was categorically told by ABF officials that the applicant was ‘included’ in the applicant’s mother’s visa because such information is manifestly incorrect and is also inconsistent with Departmental systems recording the grant of a visa to the applicant. I accept that it may be a genuine misapprehension or perhaps an assumption arising out of the next matter I consider concerning the documentation provided at that time.

26. Of interest is that the Department is unable to produce to the Tribunal the actual border visa grant notices given to the applicant’s mother and, possibly, the applicant. Instead, the Respondent’s solicitors have done the next best thing to assist the Tribunal by producing the general template for such grant notices.  I have taken into account the content of template grant notice, and noted that the document refers the recipient to online applications for subclass 155 resident return visas.  I accept that it was in response to this reference in the border visa grant notice that the applicant’s mother took the next step in respect of her own migration status.

27. I found the applicant’s mother generally to be a reliable and persuasive witness of these events, notwithstanding I am not satisfied she was expressly told by ABF officials that her daughter was ‘included’ in her visa.  The applicant’s mother was adamant that she was only given a border visa grant notice in relation to herself, explaining for example that she had to enter the visa grant number into her application for the subclass 155 visa.  I accept as logical the applicant’s mother’s explanation that had she been given a second grant notice in respect of her daughter, she naturally would have applied for the subclass 155 visa for her daughter at the same time and using the same method.  As I have found the applicant’s mother’s version of events logical and persuasive, and as the Respondent cannot produce the actual border visa grant notice(s) to contradict her recollection, I find that only a border visa grant notice in respect of the applicant’s mother was given to the applicant’s mother at passport control.  I find that no grant notice was given to the applicant’s mother in respect of the applicant, notwithstanding the border visa was in fact granted to the applicant. 

28. I view this as an administrative oversight that had a direct and consequential effect on the subsequent failure of either the applicant or the applicant’s mother to apply for a subclass 155 visa for the applicant at the same time and using the same method as the applicant’s mother employed for a subclass 155 visa for herself.

29. Moreover, in the course of closing submissions I confirmed that there was no evidence of either the ABF or the Department making any contact with either the applicant or her parents upon the border visa expiring with the consequence that the applicant  then became an unlawful non-citizen.  While I accept the submission that in general terms an individual has the primary responsibility to ensure they hold a visa to remain in Australia, it is also the case that the ABF and the Department has some level of  responsibility to follow up circumstances in which their systems detect a person has become an unlawful non-citizen.  The applicant’s whereabouts were not unknown to the ABF or the Department. She was living at home with her parents in suburban Adelaide at an address I presume was known to the Department on account of the grant of the border visa.  Had the ABF or the Department made any form of contact with the applicant’s parents about the applicant’s migration status, it can be reasonably assumed that the application for the subclass 155 visa in respect of her would have then been promptly made.

30. In my view therefore, administrative failings within the ABF and/or the Department contributed significantly to the situation in which the applicant attained and retained the status of an unlawful non-citizen between 2 September 2016 and 14 November 2019.  I proceed on the basis that her status in this regard was capable of quick remedy at any time during this period on the basis that she subsequently applied for and was granted a subclass 155 visa.  Had the applicant or her parent been given a border visa grant notice in respect of the applicant or been  contacted in relation to the cessation of the border visa without a new visa having been granted, the applicant  would have either not become an unlawful non-citizen or would have held that status for a much shorter duration.  Furthermore, the applicant would have held a permanent visa upon the grant of the subclass 155 visa.  If I were applying the general residence requirement criterion in section 22 to the application (which I am not) I would treat the period 2 September 2016 and 14 November 2019 as a period in which the applicant was not present in Australia as an unlawful non-citizen and a period in which she was a permanent residence in the exercise of discretion in subsections 21(4A) and (5) of the Act.

31. I take this conclusion into account and attribute significant weight to it for the purpose of considering whether to refuse the grant of citizenship under subsection 24(2) of the Act.

    Significant hardship or disadvantage

32. The Citizenship Policy which indicates that usually applications will not be approved unless an applicant satisfies the residence requirement also provides for an exception to that general ‘rule’ where the applicant would suffer significant hardship or disadvantage if they had to meet that requirement.

33. The applicant argues that she would face significant hardship and disadvantage by being unable to take up opportunities associated with potential selection in national teams for identified competitive sports.

34. In relation to competitive sports, the applicant has provided correspondence demonstrating that she was invited to attend the National Women’s U18 Team Selection Camp in Newcastle between 27 September 2019 and 3 October 2019.  That camp was to select a team to compete for Australia at the relevant  World Championship in the Netherlands in 2020.  Another opportunity arose for the applicant to participate in an international tournament in Taiwan in November 2020.  Unfortunately, the COVID-19 pandemic has brought international competition and planning for future international competitions to a halt.

35. The applicant has represented South Australia in the relevant sports at a junior level.  She also plays for a local men’s team.  In the immediate future, the applicant hopes to play for South Australia in an under 23 women’s competition.

1. In submissions, the respondent contended that better evidence was required to demonstrate the applicant’s contentions that she was likely to be selected to represent Australia, and also that being unable to represent Australia of itself should not be viewed as a significant hardship or disadvantage. 

2. I am satisfied on the applicant’s mother’s evidence and the limited documentary corroboration to conclude that that the applicant does represent South Australia in national competitions and but for her citizenship, she would have very good prospects of being selected to represent Australia in international competitions upon the resumption of preparation for international competition.

3. As to significant hardship or disadvantage, the Citizenship Policy addresses this point in a way that is not entirely clear.  In relation to significant hardship or disadvantage, the policy introduces a dichotomy between ‘personal needs’ and ‘personal wants’.  Representing Australia internationally at sport is said to fall into the ‘personal wants’ category with the inference that the policy therefore would indicate such a matter does not amount to a significant hardship or disadvantage.[3] Elsewhere however,[4] and as cited by the delegate in the decision under review, significant hardship or disadvantage could be demonstrated by a person’s sporting potential being limited or restricted because opportunities to reach that potential is available only to an Australian citizen, to the extent that it causes significant hardship.

   [3] See extract of Citizenship Policy at T62 / page 33 of 237 of the Citizenship Policy document

   [4] Policy extract in decision record at T9, and Chapter 3 of Citizenship Policy ‘ Significant Hardship or Disadvantage’

4. I consider that the applicant’s sporting potential would be limited or restricted in circumstances where she could not pursue selection to represent Australia on the grounds of her citizenship. 

5. As to whether such a limitation or restriction constitutes significant hardship is a matter of fact and degree and dependant on all the circumstances.  In the applicant’s case, I note that she has resided in Australia since the age of 5 and so has spent her formative years in Australia.  I have also formed the view above that administrative failings within the ABF and/or the Department contributed significantly to the situation in which the applicant does not meet the ‘residence requirements’ referred to in the policy for a grant of Australian citizenship.  I think a limitation on the applicant’s sporting potential imposed in these circumstances would amount to a significant hardship and detriment to the applicant, and would be unjust.

6. At the hearing, the applicant’s mother also raised concerns regarding the applicant’s access to the HECS / HELP programme as restricting her ability to study at university.  I note that  the applicant would be able to access a Commonwealth Supported Place at a university and would therefore be liable to pay only the student contribution amount regardless of whether she is a permanent resident or a citizen.[5]  The limitation of availability of the HECS-HELP loan scheme to Australian citizens only however means that the applicant would not be able to ‘defer’ her payment of the student contribution amount through a HECS-HELP loan.

   [5] – Commonwealth Supported Places.

7. Ultimately, the evidence of the applicant’s plans for university was not sufficiently settled for clear disadvantage or hardship to be demonstrated on this account.  It appears in any event that access to university would not be restricted, but the financial burden would not be able to be deferred.  The extent of this burden cannot be identified when a person’s course of study is not known.  I note that in any event the policy observes that in this situation tertiary enrolment may be deferred until a person acquires Australian citizenship.   In my view this matter does not introduce additional significant hardship or disadvantage in the applicant’s case.

   Consideration

8. I would not exercise the discretion at subsection 24(2) to refuse the grant of Australian citizenship to the applicant for the reasons propounded by the delegate, or for any other reason demonstrable in the evidence before me.

9. In accordance with the Citizenship Policy, I accept that in the usual case an applicant who does not meet the residence requirements should be refused a grant of Australian citizenship in exercise of this discretion. 

10. However, in the applicant’s circumstances where I accept that a degree of administrative oversight contributed to the circumstances in which she did not meet the residence requirement, and where refusing citizenship (where the applicant is otherwise eligible) imposes a limitation on the applicant’s sporting potential in circumstances amounting to significant hardship, I would refrain from exercising the discretion to refuse citizenship for these reasons.  I view the discretionary decision to refuse citizenship despite the applicant being otherwise eligible as particularly harsh in all the circumstances.

11. I will set aside the decision to refuse to grant citizenship by conferral on the applicant.

12. Given the essentially unfettered way in which the discretion at subsection 24(2) is expressed in the legislation, I have had difficulty formulating an appropriate direction to respondent on remittal.  I wish to preserve the respondent’s capacity to assess other legitimate aspects of the Citizenship Policy, and in particular to form an assessment as to whether the applicant has an adequate knowledge of the responsibilities and privileges of Australian citizenship.

13. I have been assisted by a submission from the respondent as to the appropriate framing of the direction on remittal.

I certify that the preceding 48 (forty-eight) paragraphs are a true copy of the reasons for the decision herein of Member M Kennedy.

...........[sgnd]...................................................

Administrative Assistant Legal

Dated:               3 December 2020

Date of hearing:	24 November 2020
Representative for the Applicant:	Self-represented
Representative for the Respondent:	Mr T Ellison of Australian Government Solicitor