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The contents of this article are correct as at 9 June 2016.

A non-citizen person may be able to apply for the conferral of citizenship upon their permanent resident child by demonstrating that the child would otherwise suffer hardship and disadvantage. This is a provision reflected more in policy than in law. This policy will be considered in light of the following hypothetical.

Circumstances of Case:

A woman, who is a citizen of the UK, enquires in regard to the eligibility of her two year old child for Australian citizenship. The child’s father, an Australian permanent resident, included the child only in his PR application, so the child is a permanent resident, but the mother is not. The father has since become estranged from the mother and child, and the father is not willing to assist the child in applying for Australian citizenship. The mother and child have been living with the mother’s parents in the UK. The mother has been told that she is ineligible for child support payments from the father as neither she nor her child are citizens of Australia. The mother and child intend to travel to Australia in July 2016 on a Visitor Visa.

Under the Australian Citizenship Act s21(5), a person may be eligible to become an Australian citizen if the Minister is satisfied that the person:

  • Is aged under 18 at the time the person made the application and
  • Is a permanent resident:
    • At the time the person made the application and
    • At the time of the Minister’s decision on the application

Therefore, the Minister has the discretion to grant citizenship to any permanent resident who is under 18 years old.

Additionally, persons eligible to apply for citizenship under s21(5) are not required to meet the general residence requirement under s22 or the requirement of presence in Australia under s24(5). 

Furthermore, under policy, you are eligible to become an Australian citizen if you are aged under 16, hold a permanent visa and either:

  • Are living with a responsible parent who is an Australian citizen and consents to the application
  • Are living with a responsible parent who is not an Australian citizen and consents to the application and would otherwise suffer hardship or disadvantage
  • Are in the care of another person, such as a relative who consents to the application, and would otherwise suffer significant hardship or disadvantage, or
  • Are an unaccompanied humanitarian minor who is a ward of the Minister

The criteria to be satisfied in demonstrating that the permanent resident child would suffer hardship or disadvantage can be found under DIBP Citizenship policy, the relevant section of which is reproduced below.

What is significant hardship or disadvantage

The Macquarie Dictionary Fifth Edition makes the following definitions:

  • Significant – important; of consequence
  • Hardship – a condition that bears hard upon one; severe toil, trial, oppression, or need
  • Disadvantage – absence or deprivation of advantage; any unfavourable circumstance or condition

People would normally be required to demonstrate some or all of the following circumstances:

  • Inability to gain employment on the grounds that the employment is restricted to Australian citizens, and that comparable or alternative employment is not reasonably available
  • Difficulty of international travel because the person cannot obtain a passport from their country of nationality/citizenship, or are unable to use a passport issued by that country for safety or similar reasons or cannot obtain an alternative travel document
  • Academic (for example, research, academic scholarship) or other (sporting etc) potential is being limited or restricted, because the opportunities to reach that potential is available only to an Australian citizen, to the extent that it causes significant hardship

Applicants would need to demonstrate that not having citizenship is the only or major cause for the significant hardship or disadvantage. Decision makers will need to assess each application on its merits with particular reference to all the circumstances of the case to assess whether the person’s lack of Australian citizenship is the only or major cause of the significant hardship or disadvantage.

Evidence is required that a person’s lack of Australian citizenship is the cause of the:

  • significant hardship, or
  • disadvantage

For example, a letter from a potential employer, scholarship, sporting body stating that the person’s citizenship status is the only reason they have not been selected, plus a statement in writing from the applicant, with appropriate supporting documentation, evidencing the significant hardship or disadvantage this has caused.

The onus is on the applicant to provide the evidence to support the application. Decision makers should also be aware of situations where it appears that a person takes a course of action for the sole purpose of availing themselves of the exercise of this discretion.

When making a decision regarding whether a person’s circumstances constitute “significant hardship or disadvantage” officers should be aware of the difference between personal needs and personal wants.

Personal needs relate to situations which would give rise to significant hardship or disadvantage if a person could not meet that need. For example, if a person could not find any employment, and was unable to adequately financially support themselves or their family.

Personal wants are aspirations and generally do not constitute hardship (that is, the right to vote, election to Parliament, eligibility for HECS-HELP, representing Australia internationally in academics or sport).

In considering the above against the circumstances of the hypothetical case, it would appear that the child may not meet the threshold of hardship or disadvantage for the purpose of this policy objective for one or more of the following reasons:

  • The hardship suffered by the child does not fall into one of the established categories outlined in policy; and
  • Not having citizenship may not be the only or major cause for the significant hardship or disadvantage.

It should be noted however that there is further policy which suggests that the child might still be able to obtain citizenship, despite failing to meet the hardship and disadvantage criteria, namely;

In the case of an applicant who does not meet the policy guidelines below, 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.

Despite the apparent expansiveness of this policy, the Minister may still have substantial grounds for refusing the application for citizenship under s 24(2). In exercising s 24(2), the Minister should take into account the applicant’s previous residency, the best interests of the child, policy guidelines and all the circumstances of the matter.

In this circumstance, given the following:

  • The applicant has little to no connection to Australia
  • There is very little evidence of either the applicant or his mother maintaining a close relationship with Australia in the future and
  • All of the applicant’s family members live in the UK, except his estranged father

It may be considered to be in the applicant’s best interests to return to the UK where he has family support.

For the above reasons we can see that the relevant Ministerial Discretion will most likely not be applied in the present case. It is not to discount the prospect of financial hardship playing a part in similar situations, however certainly it would appear to apply more readily to the three circumstances outline by policy; inability to gain employment, academic and difficulty of international travel. 

If you would like assistance with a citizenship application, please click this link to contact Visa Lawyers Australia.

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