The applicant, who is nine years of age, was born in Sierra Leone in 2016. She is a citizen of that country and holds a Sierra Leonean passport. I accept the evidence given by Mr G that the applicant's earliest years were very troubled. She suffered trauma and neglect at the hands of her biological mother in Sierra Leone. The applicant was given away by her biological mother to an orphanage. Mr G gave evidence, which I accept, that the applicant also suffered some degree at least of physical abuse before her adoption by Mr G and his spouse (to whom I shall refer as 'Ms E').
Mr G is an Australian citizen, who was born in Australia. Ms E is a citizen of Canada, and none of her family resides in Australia. Mr G has an older brother living in Armidale, where they were both raised. Mr G's parents, to whom I shall refer as 'Mr G (senior)' and 'Ms G (senior)' are both retired. They are 67 years of age. I accept Mr G's evidence that he has a very positive relationship with both his parents.
Mr G's background is as follows. He first studied to become a teacher in Armidale. He completed a Bachelor of Education degree at the University of New England. He taught in a primary school in Australia between 2010 and 2013. He decided to move overseas when he found it difficult to secure a permanent teaching position in Australia. He was also looking for a different life experience at that point. He left Australia at the end of 2013. He first lived in England (where he taught for eight months), and he then moved to Bahrain, teaching Year 5. He met his future spouse, Ms E, in Bahrain, where she, too, was working. She taught Art at high school level.
Mr G and Ms E married in 2016. In October 2016, they began an adoption process in respect of the applicant, who was living in an orphanage in Sierra Leone. The adoption was officially certified in December 2020.
Mr G described the applicant as a happy girl but one who has 'attachment issues' as a result of her experiences in earlier years. He described her in evidence as having suffered a degree of emotional trauma. I accept this evidence. She sees counsellors at the private college in South Korea where she is enrolled and where Mr G and Ms E now both work.
Mr G is the primary-school principal at this private college, and Ms E teaches Art in the high school. Mr G and Ms E are employed on rolling short-term contracts; and on the evidence before me, I find that they are likely to stay on in South Korea because of job opportunities and also to provide continuity for the applicant (provided their contracts are renewed).
Mr G gave evidence that the applicant has travelled with Ms E and him to Australia to meet with family on three or four occasions. Mr G (senior) and Ms G (senior) have also spent time with her outside Australia. Mr G said the applicant had a strong relationship with both her adoptive grandparents, Mr G (senior) and Ms G (senior), and that she had a particularly good relationship with the latter. As at the date of the hearing, Mr G, Ms E, and the applicant were planning to come to Australia to celebrate Christmas 2025 with their family. I accept this evidence.
I further accept Mr G's evidence that the applicant feels herself to be somewhat outside the family circle. I also accept his evidence that the applicant does not remember Sierra Leone although she understands she was born there. She is also aware that an application has been made on her behalf for citizenship.
Mr G also referred in his evidence to certain practical difficulties Ms E and he face when travelling with the applicant. At the present time, the applicant has a Sierra Leonean passport, but no Australian passport. Mr G said it is awkward to travel internationally with the applicant on her Siera Leonean passport (for example, when Mr G wishes to attend an international conference). I accept this evidence.
[2]
I turn now to my reasons. I first set out the legal regime. It is sufficient for present purposes that I simply summarise it.
[3]
I have already mentioned that the applicant is a minor. Given her age, the applicant's eligibility for citizenship was assessed under section 21(5) of the Act, which is in the follow-
[4]
(5) A person is eligible to become an Australian citizen if the Minister is satisfied that
[5]
(a) is aged under 18 at the time the person made the application; and
[6]
(i) at the time the person made the application; and
[7]
(ii) at the time of the Minister's decision on the application.
[8]
There was no dispute between the parties before me that the applicant satisfies these requirements, and the delegate formally decided that she did.
Section 21(5) exists alongside a number of other subsections dealing with eligibility for citizenship. I have appended all of s 21 to these reasons for ease of reference. It is noteworthy that s 21(2), (3) and (4), which immediately precede subs (5), each contain the following criterion for citizenship eligibility; namely that the applicant
[9]
'is likely to reside, or to continue to reside, in Australia or to maintain a close and continuing association with Australia if the application were to be approved'.[4]
[10]
Subsection (5), which follows immediately after these subsections, does not contain this eligibility requirement.
It would seem that Parliamentary Counsel has deliberately decided not to include this criterion as an eligibility requirement in respect of an application under s 21(5). This seems, to my mind, an inevitable inference given the detailed terms of each subsection and their sequence in the section. I shall return to the significance of the drafting at a later stage in these reasons.[5]
As I have noted, the delegate was satisfied that the requirements in s 21(5) were satisfied in the applicant's case. It followed in the delegate's view that the applicant was eligible to become an Australian citizen.
The delegate observed, correctly, that s 24(2) of the Act conferred a discretion on the Minister permitting him or her to refuse to approve a citizenship applicant becoming an Australian citizen despite the person's eligibility under subs (5) of s 21. I have set out the terms of s 24(2) above.[6]
In deciding whether the discretion in s 24(2) should be exercised, the delegate applied certain ministerial Citizenship Procedural Instructions ('CPI'), which were before me in evidence.[7]
I note that the general rule followed by this Tribunal's predecessor, the Administrative Appeals Tribunal, was that the Administrative Appeals Tribunal would apply valid ministerial policy directives to guide the exercise of wide discretionary powers unless there was good reason not to do so.[8] I proceed on the same basis in respect of this Tribunal's approach to ministerial policy directives intending to govern the exercise of discretionary power.
It is appropriate to begin with CPI 4, which deals with persons under the age of 18.[9] I point out that there is a very clear indication in section 1 of CPI 4 that delegates must not apply the policy inflexibly and that it may be appropriate to depart from the policy in particular cases:
Purpose
[11]
The purpose of this Instruction is to identify the legal requirements, and related policy and procedures that apply to the assessment of an application under subsection 21 (5) of the Australian Citizenship Act 2007 (the Act) to become an Australian citizen by conferral for persons under the age of 18.
[12]
Delegates are required to understand and apply the relevant law as set out in the Act. Many of the requirements in the Act are expressed in objective terms and do not allow any discretion for delegates. To the extent that the Act allows for discretion, delegates must consider the Department's approved policy and procedures where relevant and appropriate. This ensures that decision-making is consistent to the extent that it is appropriate and arbitrary outcomes are avoided.
[13]
However, policy and procedures do not have the force of law. When exercising powers or making decisions under legislation, citizenship officers must give policy documents due weight, but must not apply policy inflexibly and may consider the merits of each individual case. In order to make a fair, reasonable and lawful decision, it may be appropriate to depart from the approved policy and procedures, depending on the facts of the particular case. Before departing from approved policy and procedures citizenship officers are encouraged to consult with the Citizenship Helpdesk. If a decision is taken outside of policy, a note of the reasons for doing so must be added to the client record in ICSE.[10]
[14]
Section 7 of CPI 4 specifies policy considerations for children aged 15 years and under (as is the case here). It provides in part:
[15]
The intent of these policy settings is the child (and their responsible parent/s) intend to reside, or to continue to reside, in Australia or to maintain a close and continuing association with Australia, if the application was to be approved.[11]
[16]
It then provides in respect of a situation where the applicant is living with a responsible
[17]
parent who is an Australian citizen, as is the case here:
[18]
In this situation, delegates 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. Delegates must consider the child's previous residence or pattern of visits to Australia, as well as the family unit's association to Australia. Refer to CPI 11 - Assessing likelihood to reside or continue to reside in, or maintain a close and continuing association with Australia.[12]
[19]
CPI 11, to which CPI 4 refers, is entitled: 'Assessing likelihood to reside or continue to reside in, or maintain a close and continuing association with Australia'. I have already mentioned that each of ss 21(2), (3), and (4) specifies a requirement that the citizenship applicant should be likely to reside, or to continue to reside, in Australia or to maintain a close and continuing association with Australia if the application were to be approved.
Under section 3.5 of CPI 11, the following observation is made:
[20]
It is important to note that the requirement to maintain a close and continuing association refers to an association with Australia, not with Australians. This means that a close and continuing association with immediate/extended family or other social relationships or networks in Australia, on its own, may not be a sufficient factor to meet this requirement, although each case must be considered on its own merits.[13]
[21]
The delegate expressed his[14] application of this criterion to the applicant's situation in the following way:
[22]
I accept that [the applicant] has a close and continuing association with their Australian citizenship parent, grandparents and extended family. However, Citizenship policy requires that the applicant and their family unit have a close and continuing association with Australia, not just Australians. Therefore, having Australian citizen family members would not usually be sufficient to meet the requirement to have a close and continuing association with Australia. I give little weight to the fact that [the applicant]'s parents, grandparents and extended family members are Australian citizens.[15]
[23]
Reasons for setting aside the decision under review
[24]
I turn now to explain my reasons for setting aside the decision under review. There are three independent bases for my decision.
I turn to the first basis for my decision. I agree with the delegate that the applicant has 'a close and continuing association with their Australian citizenship parent, grandparents and extended family'. That has been confirmed before me in evidence given by Mr G, Mr G (senior) and Ms G (senior). I do not doubt that Mr G and Ms E will seek to integrate the applicant ever more closely with the applicant's Australian family.
I think the delegate may have misunderstood the policy as posing a dichotomy between an 'association with Australia', on the one hand, and 'an association with Australians' on the other. There is no strict dichotomy. If Australian family members to whom a citizenship applicant is emotionally close live in Australia, then there is no reason, in my view, why that factor could not form in an appropriate case the basis of a sound conclusion that the person is likely to maintain a close and continuing association with Australia in the future.
In particular, I do not believe that the delegate was correct to state that 'having Australian citizen family members would not usually be sufficient to meet the requirement to have a close and continuing association with Australia' under the policy. The part of the policy I have extracted above[16] does say that having such an association 'may' not be sufficient on its own in a particular case, but as the policy goes on to point out immediately, 'each case must be assessed on its own merits'. In this case, I find that the applicant has developed a very close relationship with her grandparents in Australia, who both reside in Australia, has visited them here, and has a good relationship with extended family members here as well. She clearly belongs to a family where the grandparents are not remote from her life, but are, to the contrary, very active in it. Aged 67, the grandparents can be expected to fulfil their role in the applicant's life for some years to come. Her association with Australia is demonstrated through this connection and by her visits here. The common sense of the situation suggests that as she grows older, the applicant may well travel here independently, and that over time, she may also stay here longer (for example, during school holidays).
I have concluded that the applicant does have a very close association with Australia because of this very tight family unit, and that she is likely to maintain the association. I also conclude that Mr G has a close association with Australia for the same reason. In my opinion, it is also the case that Mr G would most likely return to Australia if his overseas job opportunities became less attractive. He has not cut all ties with Australia and maintains important connections here. It is true that he is working overseas at the present time and has done so for some years; but he still maintains a close relationship with Australia, given his family connections and given also that ultimately Australia is home to him in a way that South Korea is not, and cannot be since he has only limited visa rights to reside and work there.
I turn now to the second basis for my conclusion. Even if my first reason is wrong, I note that the policy itself suggests that it 'may be appropriate to depart from approved policy' depending on the facts of the particular case in order to 'make a fair, reasonable and lawful decision'.[17] The particular facts of this case are most unusual. The applicant is a child who has suffered greatly in her home country, having been abandoned by her mother and given to an orphanage. She has no connection at all with her country of birth, and has ongoing emotional and psychological needs arising from her early mistreatment. There is much to be said for the applicant being granted citizenship so as to promote her healthy psychological growth and development within her Australian family. I accept that she is generally a happy girl, and that she continues to benefit from counselling at her school and from sensitive and devoted parenting; but the fact remains that her sense of belonging and overall wellbeing would be advanced, in my opinion, by a grant of citizenship.
I also take into account that when she travels, it would be easier and less troublesome if she did so on a passport that matched her father's. I accept Mr G's evidence that it is difficult to travel with the applicant at the present time given her unusual circumstances (namely, her status as an adopted child travelling on a Sierra Leonean passport).
All in all, I have concluded that this is a case where it would be appropriate to depart from the approved policy to reach a fair and reasonable decision given the unusual facts of this case. This is envisaged by the policy itself, as I have pointed out.
I turn now to the third basis for my decision. Ms E raised an issue before me; namely, whether it was lawful for the delegate to apply the criterion of 'being likely to reside, or to continue to reside, in Australia or to maintain a close and continuing association with Australia' when he considered whether to exercise the power in s 24(2).
Ms E pointed out that this criterion is specified as an eligibility criterion in subss (2), (3), and (4) of s 21 of the Act, but not in subs (5). She submitted that a lawful policy could not permit a delegate to refuse the applicant's citizenship application by reference to this criterion, because this would have the effect of adding the criterion as a de facto eligibility requirement when it was not included in s 21(5) by the Parliament.
When deciding appropriate policy to govern the exercise of discretionary powers, the Minister may not settle upon a policy that is inconsistent with the scheme of the Act. It is not strictly necessary for me to decide the question, but I believe that there is much to be said for the view that the Minister may not refuse, under s 24(2) of the Act, a citizenship application made under s 21(5) by applying a policy that mirrors the criterion that is present in subsections (2), (3), and (4) of s 21 but does not appear in subs (5). I think it is an appropriate inference, drawn from a consideration of s 21 as a whole, that a decision was deliberately taken not to require, as an eligibility criterion under s 21(5), that a citizenship applicant should be likely to reside, or to continue to reside, in Australia or to maintain a close and continuing association with Australia. That inference is, as I have indicated earlier, inevitable in my view.[18]
If this inference is correct, then it must follow that the Minister's delegate ought not to have applied this part of the policy to the circumstances of this case because doing so had the effect of imposing the very eligibility criterion that Parliament has decided should not apply to the applicant's circumstances; that is, applying the policy in these circumstances was inconsistent with the scheme of the Act and its intended operation. It also follows that this Tribunal should not apply the policy as part of its review.
[25]
Given my conclusions, the correct or preferable decision on the evidence before me is that the applicant's citizenship application should not be refused by exercise of the discretion under s 24(2) of the Act. My formal decision will be, therefore, to set aside the decision
[26]
under review and to substitute a decision to this effect.
[27]
I certify that the preceding forty-four (44) paragraphs are a true copy of the reasons for the decision herein of Senior Member Manetta.
APPENDIX: SECTION 21 of the CITIZENSHIP ACT, 2007 (CTH)
[30]
(1) A person may make an application to the Minister to become an Australian citizen.
[31]
Note 1: Subsections (2) to (8) deal with eligibility.
Note 2: Section 46 sets out application requirements (which may include the payment of a fee).
[32]
(2) A person is eligible to become an Australian citizen if the Minister is satisfied that the person:
[33]
(a) is aged 18 or over at the time the person made the application; and
[34]
(i) at the time the person made the application; and
[35]
(ii) at the time of the Minister's decision on the application; and
[36]
(c) satisfies the general residence requirement (see section 22) or the special residence requirement (see section 22A or 22B), or satisfies the defence service requirement (see section 23), at the time the person made the application; and
[37]
(d) understands the nature of an application under subsection (1); and
[38]
(e) possesses a basic knowledge of the English language; and
[39]
(f) has an adequate knowledge of Australia and of the responsibilities and privileges of Australian citizenship; and
(g) is likely to reside, or to continue to reside, in Australia or to maintain a close and continuing association with Australia if the application were to be approved; and
[40]
(h) is of good character at the time of the Minister's decision on the application.
[41]
(2A) Paragraphs (2)(d), (e) and (f) are taken to be satisfied if and only if the Minister is satisfied that the following apply:
[42]
(a) the person has sat a test approved in a determination under section 23A;
[43]
(b) the person was eligible to sit that test (worked out in accordance with that determination);
(c) the person started that test within the period worked out in accordance with that determination and completed that test within the period (the relevant test period) worked out in accordance with that determination;
(d) the person successfully completed that test (worked out in accordance with that determination) within the relevant test period.
[44]
Permanent or enduring physical or mental incapacity
[45]
(3) A person is eligible to become an Australian citizen if the Minister is satisfied that the person:
[46]
(a) is aged 18 or over at the time the person made the application; and
[47]
(i) at the time the person made the application; and
[48]
(ii) at the time of the Minister's decision on the application; and
[49]
(c) satisfies the general residence requirement (see section 22) or the special residence requirement (see section 22A or 22B), or satisfies the defence service requirement (see section 23), at the time the person made the application; and
(d) has a permanent or enduring physical or mental incapacity, at the time the person made the application, that means the person:
(i) is not capable of understanding the nature of the application at that time; or
(ii) is not capable of demonstrating a basic knowledge of the English language at that time; or
(iii) is not capable of demonstrating an adequate knowledge of Australia and of the responsibilities and privileges of Australian citizenship at that time; and
(e) is likely to reside, or to continue to reside, in Australia or to maintain a close and continuing association with Australia if the application were to be approved; and
[50]
(f) is of good character at the time of the Minister's decision on the application.
[51]
Person aged 60 or over or has hearing, speech or sight impairment
[52]
(4) A person is eligible to become an Australian citizen if the Minister is satisfied that the person:
[53]
(i) aged 60 or over at the time the person made the application; or
[54]
(ii) aged 18 or over at the time the person made the application and is suffering from a permanent loss or substantial impairment of hearing, speech or sight at that time; and
[55]
(i) at the time the person made the application; and
[56]
(ii) at the time of the Minister's decision on the application; and
[57]
(c) understands the nature of the application at the time the person made the application; and
(d) satisfies the general residence requirement (see section 22) or the special residence requirement (see section 22A or 22B), or satisfies the defence service requirement (see section 23), at the time the person made the application; and
(e) is likely to reside, or to continue to reside, in Australia or to maintain a close and continuing association with Australia if the application were to be approved; and
[58]
(f) is of good character at the time of the Minister's decision on the application.
[59]
(5) A person is eligible to become an Australian citizen if the Minister is satisfied that the person:
[60]
(a) is aged under 18 at the time the person made the application; and
[61]
(i) at the time the person made the application; and
[62]
(ii) at the time of the Minister's decision on the application.
[63]
(6) A person is eligible to become an Australian citizen if the Minister is satisfied that:
[64]
(b) a parent of the person was not an Australian citizen at the time of the person's birth; and
(c) the parent had ceased to be an Australian citizen under section 17 of the old Act (about dual citizenship) before that time; and
(d) if the person is aged 18 or over at the time the person made the application - the person is of good character at the time of the Minister's decision on the application.
[65]
(7) A person is eligible to become an Australian citizen if the Minister is satisfied that:
[66]
(a) the person was born in Papua before 16 September 1975; and
[67]
(b) a parent of the person was born in Australia (within the meaning of this Act at the time the person made the application); and
[68]
(c) the parent was an Australian citizen at the time of the person's birth; and
[69]
(d) the person is of good character at the time of the Minister's decision on the application.
[70]
(8) A person is eligible to become an Australian citizen if the Minister is satisfied that:
[71]
(i) is not entitled to acquire the nationality of a foreign country; and
[72]
(ii) is not entitled to acquire the citizenship of a foreign country.
[73]
[1] The delegate's decision and reasons were before me: see the Hearing Book ('HB'), 14ff. (The Respondent filed a joint bundle of materials that was received into evidence as a hearing book and marked 'HB'.)
[74]
[2] See, for example, Khalil v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs[2025] HCA 33, [16] and [18]-[19].
[75]
[3] This paragraph is one I routinely insert in my decisions to explain the review functions of theTribunal.
[76]
[4] See ss 21(2)(g), (3)(e), and (4)(e) respectively.
[77]
[7] HB, 129ff. The Respondent, at my request, also subsequently provided a complete set of all Citizenship Procedural Instructions.
[78]
[8] See the discussion in GJDB and Minister for Immigration, Citizenship and Multicultural Affairs (Citizenship)[2023] AATA 3245 at [20] - [21].
[79]
[14] The delegate signed as 'Jacob' and so I have assumed that the delegate was male, although 'Jacob' may not have been the delegate's name.
Legislation Cited (1)
Citizenship Act 2007
Cases Cited (3)
FPRR and Minister for Immigration and Citizenship (Citizenship) [2026] ARTA 20 (9 January 2026)
GJDB and Minister for Immigration, Citizenship and Multicultural Affairs (Citizenship)[2023] AATA 3245
Khalil v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs[2025] HCA 33