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

This matter concerned an application for Australian citizenship by conferral by a person under 18 years of age who was overseas. The applicant's eligibility for citizenship was not in dispute, but the Minister had the discretion to refuse approval under subsection 24(2) of the relevant Act. The Administrative Appeals Tribunal, acting in the Minister's stead, was therefore required to consider the application within the constraints of the legislation and applicable policy.

The Tribunal was tasked with determining how to apply the Citizenship Procedural Instructions (CPIs) and the Australian Citizenship Policy Statement in assessing the applicant's eligibility. Specifically, the Tribunal had to consider the CPIs' requirements regarding the likelihood of the applicant residing in or maintaining a close and continuing association with Australia, and the assessment of significant hardship, disadvantage, or detriment for the purposes of Australian citizenship. The overarching consideration of the best interests of the child was also central to the Tribunal's decision-making process.

The Tribunal reasoned that while legislation sets the framework, government policy, such as the Citizenship Policy Statement and CPIs, guides the exercise of discretion. These instructions, while not always exhaustively binding, provide crucial criteria for decision-makers. In this instance, the Tribunal was bound to consider the specific requirements outlined in the CPIs concerning the applicant's future connection to Australia and any potential hardship, all within the paramount consideration of the child's best interests, to determine whether to approve the grant of citizenship.