respondent. The decision under review is affirmed (Administrative Appeals Tribunal, Ms N Bell, Senior Member, 18 November 2010).
Key principles
The Australian Citizenship Instructions (the Instructions) are permissible departmental policy guidance to inform the exercise of the Minister's discretion under s 24(2) of the...
Where a policy criterion (for example, 'is a permanent resident' or 'satisfies the residence requirements') is not met, decision-makers are required to consider the full...
The failure of an applicant under s 21(5) to meet the Instructions' listed policy criteria does not automatically preclude approval; the Instructions require flexibility and...
Issues before the court
Whether the Australian Citizenship Instructions unlawfully fetter the Minister's discretion under s 24(2) of the Australian Citizenship Act 2007 by...
Whether the applicants' personal circumstances were 'unusual or exceptional' or involved 'significant hardship or disadvantage' such that the...
Whether the best interests of the child as a primary consideration required grant of citizenship.
Plain English Summary
Two teenage twin sisters on student visas applied for Australian citizenship under s 21(5). The Minister refused because they were not permanent residents. The AAT held the departmental policy (the Australian Citizenship Instructions) can be used to guide the exercise of the Minister's discretion under s 24(2) so long as it is not applied rigidly; decision-makers must consider the full circumstances including the best interests of the child. The Tribunal found the applicants did not show unusual, exceptional circumstances or significant hardship, and therefore affirmed the Minister's refusal.
AI-generated legal information, not legal advice. Zoe can make mistakes. Check the cited source, and for advice about your situation consult a qualified Australian lawyer.
Deep Dive
1,657 words · generated 28/08/2026
What happened
This is an Administrative Appeals Tribunal decision by Senior Member Ms N Bell dated 18 November 2010 (AATA 921) concerning two twin sisters, Soo Min Kim and Soo Hyun Kim, who sought review of the Minister's refusal (10 November 2008) to confer Australian citizenship. The applicants were born on 29 September 1992 in Seoul, Korea, first arrived in Australia in September 2003, left and returned in January 2004 on student (subclass TY 573) visas and remained in Australia. They applied for conferral of citizenship as persons under 18 relying on s 21(5) of the Australian Citizenship Act 2007. The Minister refused because the applicants were not permanent residents, and the AAT was asked to review whether that refusal was appropriate and whether the departmental policy (Australian Citizenship Instructions 2007) was unlawfully fettering the statutory discretion in s 24(2).
Cited legislation
1 cited instrument linked from this judgment.
The Tribunal affirmed the Minister's decision. It held the Instructions are lawful departmental guidance that do not unlawfully fetter the s 24(2) discretion because they expressly require decision-makers to consider the full circumstances of the case and the best interests of the child and to avoid rigid application. On the facts, the Tribunal found the applicants did not demonstrate unusual or exceptional circumstances or significant hardship that would warrant departing from policy and conferring citizenship. Consequently the Minister's refusal to confer citizenship was affirmed.
Why the court decided this way
Two distinct legal questions drove the decision.
Do the Instructions unlawfully fetter the discretion in s 24(2)?
The Tribunal applied the established administrative-law principle that a policy or guideline which effectively binds the decision-maker so that the statutory discretion cannot be exercised is unlawful (citing Drake and Gray). The Tribunal analysed the Instructions' text and found express language requiring flexibility: the Instructions say policy 'must not be applied inflexibly' and expressly demand consideration of the full circumstances of the case and the best interests of the child where applicants do not meet policy criteria. On that textual basis the Tribunal concluded the Instructions are guidance to promote consistency, not an absolute bar that constrains the statutory discretion. Thus the instructions are lawful as long as decision-makers remain open to departing from policy when appropriate.
On the merits, were the applicants' circumstances exceptional so as to require conferral despite non-compliance with the policy criteria?
The Tribunal accepted that the applicants had formed ties with Australia, had limited proficiency in Korean, and wished to pursue tertiary studies in Australia. However the Tribunal emphasised that those facts alone are not 'unusual or exceptional' or amount to 'significant hardship' under Attachment B to the Instructions. The Tribunal also observed that the applicants were close to turning 18 and that their mother was resident in Korea; these factors reduced the weight of 'best interests of the child' as a decisive consideration. The applicants produced no evidence of parental financial hardship or the sort of disadvantages listed in the Instructions' Attachment B. The Tribunal therefore concluded the discretion to refuse citizenship had been properly exercised.
Important textual anchors in the Tribunal's reasoning include the policy wording requiring flexibility and consideration of best interests and the Tribunal's reliance on precedent (Re Rak) noting that a student's preference to remain and study in the country where they have studied is not necessarily unusual or exceptional.
Before and after state of the law
Before this decision: The administrative-law principle that policies must not fetter statutory discretion was well-established (Drake; Gray). There was practical tension in citizenship conferral decisions between statutory eligibility classes (s 21 categories) and departmental policy that lists criteria which applicants ordinarily must meet.
After this decision: The AAT reinforced that the Australian Citizenship Instructions may lawfully guide decision-makers under s 24(2) but cannot be used as an inflexible rule that removes the decision-maker's ability to consider exceptional or best-interest circumstances. The decision confirms that where the Instructions themselves require consideration of best interests and the full circumstances, that textual feature is pivotal in showing the policy does not attempt to bind the discretion. On fact patterns similar to Kim/Kim, student visa holders with ties in Australia but no evidence of extraordinary hardship, this decision supports upholding a refusal where applicants do not meet the Instructions and cannot show exceptional circumstances.
Key passages with plain-English translation
"The Instructions are a departmental guideline used to ensure a consistent exercise of the discretion in section 24(2). A decision-maker ought to follow policy except in circumstances where it impedes a correct or preferable decision that accords with the statutory provision." (judgment)
Translation: The Instructions are meant to help decision-makers be consistent. They are not law. Decision-makers should use the policy unless following it would prevent them from making a decision required by the statute.
The Instructions' quoted language that policy "must not be applied inflexibly" and that "decision-makers must consider the full circumstances of the case, including the best interest of the child..."
Translation: The policy itself tells decision-makers they must be flexible and look at the whole picture, including the child's welfare, especially for applicants under 18.
"The Instructions describe matters that should be considered. However, they do not impose a limitation on the exercise of the discretion, dependent on the satisfaction of those criteria."
Translation: The list of criteria in the Instructions are things to think about, they are not automatic gates that, if failed, permanently bar citizenship.
"I do not find that the circumstances of the Applicants are unusual or exceptional or give rise to hardship. I consider the discretion under section 24(2) has been exercised appropriately."
Translation: The Tribunal decided the girls’ personal situation was not special enough to override the policy and force a grant of citizenship, so the refusal was correct.
What fact patterns trigger this precedent
This decision is triggered where:
Applicants are eligible on the statutory test (for example s 21(5) persons under 18) but do not meet some or all of the departmental policy criteria (eg they are not permanent residents).
The decision-maker relies on the Instructions to refuse conferral under s 24(2).
The applicants argue the Instructions unlawfully fetter discretion or that their circumstances are exceptional or that conferral is required by their best interests.
There is no persuasive, concrete evidence of significant hardship or exceptional features such as serious medical need, a lack of alternative lawful means to remain, or other indicia listed in policy Attachment B.
Under such patterns, Kim demonstrates the Tribunal will:
Examine the Instructions' text to see whether they require inflexibility; where the Instructions themselves call for flexibility and consideration of best interests, they will typically be treated as lawful guidance.
Demand evidence of exceptional hardship or disadvantage before departing from policy.
How later courts have treated it
The judgment itself cites a small body of prior AAT and court decisions (Drake; Gray; Re Rak; Re Hai Min Choi; Re Raisani). The Tribunal followed the established principle that a policy must not be applied inflexibly so as to fetter statutory discretion. It relied on Re Rak to support that the mere fact of a student's desire to stay and continue education is not novel or exceptional. The Tribunal distinguished Choi and Raisani because they involved different statutory provisions and policy frameworks (those cases addressed a different statutory section and a discretion to grant rather than to refuse). Subsequent authorities dealing with s 24(2) decisions will likely continue to apply the approach in Kim: look at the text of policy; if the policy requires consideration of exceptions and best interests, it is unlikely to be a fetter; also require objective evidence of hardship to depart from policy.
Note: This section summarises the decision's interactions with precedent as recorded in the reasons; for subsequent treatment one should consult later AAT and judicial decisions for whether they have applied or distinguished Kim.
Still-open questions
How strong must evidence be to establish 'significant hardship and disadvantage' under Attachment B?
Kim emphasises the need for evidence (the Tribunal noted no evidence of parental financial hardship). But the decision does not set a precise evidentiary threshold. Practitioners will need to marshal clear documentary proof where they claim hardship.
How should 'best interests of the child' be weighted where the applicant is close to turning 18?
The Tribunal gave limited weight to the applicants' best interests because they were nearing majority. That suggests timing matters, but there is no bright line rule about how proximity to majority alters the balancing.
What is the effect where the Instructions do not expressly include the same flexibility language?
Kim relies in part on the Instructions' expressed flexibility. If a different policy document lacks such wording, there is a greater risk of successful challenge on fettering grounds. The decision leaves open the question of acceptable drafting of departmental policies.
The interplay between statutory eligibility categories and policy criteria
Kim confirms that failing policy criteria does not automatically negate statutory eligibility, but the case leaves open how tribunals should weigh multiple adverse factors when some statutory categories emphasize different elements (eg permanent residence is explicit in other s 21 subsections but not in s 21(5)).
How courts will treat similar factual situations where applicants are younger or where removal or visa prospects are different
Kim's factual milieu (students with active visas, near majority, no evidence of hardship) contributed to the outcome; markedly different facts (young children with no right to stay, severe medical needs, dependent family members) would produce different analysis.
CLOSING REMARK, IMPORTANT: This is a source-based explanation of the Tribunal's reasoning in Re Soo Min Kim & Soo Hyun Kim (AATA 921). It is general legal information and not legal advice. I can make mistakes. Before you rely on this analysis, prepare submissions, or take any step based on it, have a qualified Australian lawyer check it.
Judgment (31 paragraphs)
[1]
Kim and Minister for Immigration and Citizenship [2010] AATA 921 (18 November 2010)
CATCHWORDS - Immigration - conferral of citizenship - discretion of the Minister - policy documents - Australian Citizenship Instructions - permanent residency - student visas - unusual or exceptional circumstances - best interests of the child
Re Hai Min Choi and Minister for Immigration and Citizenship[2008] AATA 726
[9]
Re Raisani and Minster for Immigration and Citizenship[2008] AATA 640
[10]
Re Rak and Department of Immigration and Citizenship[2010] AATA 157
[11]
The Applicants, Soo Min Kim and Soo Hyun Kim, are twin sisters who seek a review of a decision made by the Minister on 10 November 2008 to refuse their applications for citizenship. The Applicants were born in Seoul, Korea, on
[12]
29 September 1992 and first arrived in Australia on 17 September 2003. After departing Australia on 15 October 2003, the Applicants later returned to Australia on 13 January 2004 on student subclass TY 573 visas. They have remained in Australia since then. They currently hold subclass TY 573 visas which are valid until
[13]
23 November 2011.
2. Section 21(5) of the Australian Citizenship Act 2007 provides that a person under the age of eighteen is eligible to become an Australian citizen. Section 24(2) of that Act gives a discretion to the Minister to refuse an application for citizenship despite the person being eligible under section 21(5). The Act does not provide any factors or considerations for the decision-maker when exercising the discretion under section 24(2).
3. Chapter 5 of the Australian Citizenship Instructions 2007 (Citizenship by Conferral) provides guidance to decision-makers when exercising the discretion under section 24(2). The Instructions provide:
[14]
Applicants aged 16 years and over and under the age of 18
Applicants aged 16 years and over and under the age of 18 must make an application on a form that contains no other application. This is set out in s46(2A) of the Act.
[15]
Applicants aged 16 years and over and under the age of 18 would usually be approved under s24 if they meet the following policy requirements:
[16]
is a permanent resident
satisfies the residence requirements
the applicant need not meet the residence requirements if this would cause significant hardship or disadvantage. See Attachment B - Significant hardship and disadvantage for guidance
understands the nature of an application
possesses a basic knowledge of the English language
has an adequate knowledge of the responsibilities and privileges of Australian citizenship at the time of decision
is likely to reside or continue to reside, or maintain a close and continuing association with Australia.
[17]
The Applicants were at no stage permanent residents and the Minister refused their applications for citizenship on that basis.
The Applicants contend that the Minister incorrectly exercised his discretion to refuse their applications for citizenship. The Applicants submitted that, firstly, the Instructions should not be used to inform the exercise of the discretion under section 24(2) as they impose criteria of eligibility additional to those contained in section 21(5), thereby altering the effect of that section. The Applicants contend that the policy is unlawful as it fetters the exercise of the discretion.
The Applicants also contended that their circumstances were unusual in that the decision not to confer citizenship would result in severe hardship that is not in the best interests of the child.
The issue for me to consider is the whether discretion in section 24(2) to refuse citizenship should be exercised. In determining this, it is necessary for me to consider whether any exercise of that discretion should be informed by the Instructions.
[18]
SHOULD THE EXERCISE OF THE DISCRETION UNDER SECTION 24(2) OF THE ACT BE INFORMED BY THE INSTRUCTIONS?
[19]
In respect of the Applicants' first argument above, it was submitted that the Instructions' requirements that the applicant "is a permanent resident" and "satisfies the residence requirements" are more onerous than the statutory provision itself and are therefore an unlawful policy guideline which fetters the exercise of the discretion.
The Applicants also submitted that, given that permanent resident status is an express requirement in sections 21(1) to 21(4) of the Act but is not a requirement in section 21(5), there is a clear legislative intention to exclude permanent residence status as a requirement in section 21(5). I do not agree with this argument. Section 21(5) provides for a class of people who may be eligible. Section 24(2) provides a discretion to the Minister to refuse citizenship to eligible people. The provision for discretion remains unconfined by any other provision in the Act, but guided by the policy. The terms of the policy document itself, the Instructions, make it clear that the policy "must not be applied inflexibly" and that:
[20]
...decision-makers must consider the full circumstances of the case, including the best interest of the child, to determine whether the application nevertheless warrants approval because of the exceptional nature of those circumstances.
[21]
The Instructions are a departmental guideline used to ensure a consistent exercise of the discretion in section 24 (2). A decision-maker ought to follow policy except in circumstances where it impedes a correct or preferable decision that accords with the statutory provision. In other words, a policy or guidelines must not expressly fetter the exercise of a discretion: Drake v Minister for Immigration and Ethnic Affairs (No 2)(1979) 12 ALD 634; Minister for Immigration, Local Government and Ethnic Affairs v Gray[1994] FCA 1052; (1994) 33 ALD 13.
The commencement of the section of the Instructions relating to section 21(5) states:
[22]
... The discretion in s 24(2) to refuse to approve an applicant becoming an Australian citizen despite being eligible under s 21(5) would usually be exercised where the applicant does not meet the policy guidelines. In making a decision whether to refuse or approve an application, the primary considerations that need to be taken into account are the legislative requirements, the best interests of the child and the policy guidelines set out below.
Best interests of the child
The best interests of the child are to be considered as one of the primary considerations when assessing the application. This consideration only applies if the child is or would be less than 18 years of age at the time of decision on the application and the child is living in Australia.
[23]
The word 'usually' in the first paragraph quoted above suggests that the application of the policy is not intended to be rigid or inflexible. I also note the Instructions stipulate that the policy guidelines are to be taken into consideration along with any considerations as to the best interests of the child. The Instructions then go on to state seven criteria including permanent residence and satisfaction of the residence requirements. The Applicants do not satisfy these criteria. I note that the concluding paragraph of the relevant part of the Instructions states:
[24]
In the case of an applicant who does not meet the policy requirements above, decision-makers must consider the full circumstances of the case, including the best interest of the child, to determine whether the application nevertheless warrants approval because of the exceptional nature of those circumstances. The circumstances would need to be very unusual to warrant approval of an application outside policy.
[25]
The Instructions describe matters that should be considered. However, they do not impose a limitation on the exercise of the discretion, dependent on the satisfaction of those criteria. The Instructions specifically provide that the best interests of the child and the full circumstances of the case should also be considered. In this way, the Instructions specifically encourage flexibility in exercising the discretion in unusual circumstances and do not impede the making of the correct or preferable decision. The Instructions do not direct that a citizenship application must be refused for an applicant who does not satisfy the listed criteria.
For the reasons above, I do not find that the Instructions are inconsistent with the discretion provided for in section 24(2). The Instructions are not inflexible and do not require that the discretion be exercised in absolute adherence to the listed criteria to the preclusion of a correct and favourable decision having regard to all the circumstances of the application. The Instructions do not unduly fetter the exercise of the discretion under section 24(2).
The Applicants also contended that an appropriate application of the Instructions should not read the failure to satisfy one requirement as preclusion to the conferral of citizenship but rather all requirements should be taken into account with all of the circumstances of the case. On my reading of the Instructions, a consideration of all the circumstances of the relevant Applicant is, in fact, required if it is found that any of the criteria is not met. In this way, the criteria do not have a precluding effect on the exercise of the discretion.
I now turn to the Applicants' circumstances.
[26]
ARE THE APPLICANTS' CIRCUMSTACES SUCH THAT THE DISRECTION TO REFUSE CITIZENSHIP SHOULD NOT BE EXCERCISED?
[27]
The Applicants reside in Sydney with their father. Their mother returned to Seoul on 30 May 2009 where she remains. At the time of the hearing, both Applicants were in their final year at a high school in Sydney and were about to undertake the HSC. In giving evidence to the Tribunal, the Applicants were articulate and had a good command of English. The two Applicants gave their evidence separately.
Ms Soo Min Kim described her plans to complete her HSC and undertake a university course in nursing at the University of Technology in Sydney. She said that she first decided to be a nurse when she participated in a service learning program at an aged care facility in year 10. Soo Min also told the Tribunal that she had made no enquiries as to the tertiary requirements in Korea.
She said that her level of Korean was alright but she only spoke "daily things" and rarely wrote in Korean. She said speaks to her father in Korean at home and telephones her mother, with whom she also speaks Korean, everyday. With her sister, Soo Min said she speaks mostly English.
Soo Min told the Tribunal that she is close to her sister with whom she shares the same group of friends. She said that she knows some people in Korea but they are mostly relatives.
Ms Soo Hyun Kim also told the Tribunal about her plans to study teaching at either the University of New South Wales or the University of Sydney after completing her HSC. She said she wishes to become a maths and Japanese teacher. She also said that she speaks to her father at home in Korean and to her mother on the telephone in Korean but can only speak a simple level of Korean and can only read and write a little in Korean. Soo Hyun said she speaks to her sister and her friends mostly in English.
Like her sister, Soo Hyun told the Tribunal that she had not made any enquiries about tertiary study in Korea nor had she made any enquiries into the requirements for obtaining a visa next year. She said that she assumes she will get another student visa on the expiration of her current visa. Soo Hyun was unsure as to her parents' plans and was unsure as to whether her mother plans to return to Australia.
I accept that the Applicants' ties with Korea have been eroded to an extent as a result of having spent much of their formative years in Australia. I accept that they do not wish to return to Korea and are mindful of their lack of proficiency in Korean and how difficult it could be to commence tertiary education immediately. They have spent a lengthy period of time, have formed close personal ties with friends here and appear to be sincere in their desire to remain and become Australian citizens.
[28]
I certify that the 29 preceding paragraphs are a true copy of the reasons for the decision herein of Ms N Bell, Senior Member
Solicitor for the Applicant Mr David Gu, Christopher Levingston & Associates
[31]
Solicitor for the Respondent Ms Laura Weston, DLA Phillips Fox Lawyers
Parties
Applicant/Plaintiff:
Drake
Respondent/Defendant:
Minister for Immigration and Ethnic Affairs
Legislation Cited (1)
Citizenship Act 2007
AI Analysis
Outcomerespondent
Disposition:
The decision under review is affirmed (Administrative Appeals Tribunal, Ms N Bell, Senior Member, 18 November 2010).
However, I am not satisfied that any of these circumstances could be described as unusual or exceptional or as giving rise to particular hardship. It is not unusual for a student who has spent a significant amount of time studying in Australia to wish to continue to study in Australia. In Re Rak and Department of Immigration and Citizenship[2010] AATA 157, Buchanan J observed that circumstances in which a student has studied in a foreign country, formed cultural and personal ties in that country and wishes to continue their education in that country are not circumstances that are unusual or exceptional. I also note that the Applicants are free to re-apply for a student visa on the expiration of their current visa next year.
The representative for the Applicants submitted that the cost of Soo Min and Soo Hyun undertaking tertiary education as international students would impose financial hardship on the family and would force their return to South Korea in order to undertake tertiary education. When I asked for evidence of the financial circumstances of the Applicants' parents, none could be provided. There was no evidence before the Tribunal to support this submission. I have turned my mind to the contents to the attachment to the Instructions entitled "Attachment B - Significant Hardship and Disadvantage". The Applicants have not demonstrated any of the indicia of hardship suggested in that attachment.
It was also submitted on behalf of the Applicants that it is in their best interests as children to be granted citizenship so that they are able to remain in Australia and continue their education. I note that the Applicants were close to turning 18 years of age at the time of the hearing and have since turned 18. Accordingly, I give this consideration little weight. I also note that their mother resides in South Korea with no plans to return to Australia. In any event, for the remainder of their minority they have been free to remain in Australia under their current visas.
I was referred by the Applicant to the decisions in Re Hai Min Choi and Minister for Immigration and Citizenship[2008] AATA 726 and Re Raisani and Minster for Immigration and Citizenship[2008] AATA 640, both of which involved section 13(9) of the Act as it was prior to 2007. As was noted by the representative for the Applicants, these decisions were in respect of a different Act and policy which provided discretion in granting citizenship as opposed to providing discretion to refuse. I also note that no evidence from Dr Shin, the expert who gave evidence of hardship in Choi, was before me in these applications.
For the above reasons, I do not find that the circumstances of the Applicants are unusual or exceptional or give rise to hardship. I consider the discretion under section 24(2) has been exercised appropriately.