The application of policy assumes that, in the absence of any reason to the contrary, its standards and values are an appropriate guide in the particular case.[5]
[2]
In the submission to the delegate the Applicant stated her mother is an Australian citizen and intended for her and her brother to apply for citizenship before they turned 16. They commenced the process in 2020 by applying for the Adoption visas and after the grant of the visas they made arrangements to travel to Australia in August 2020 in order to apply for citizenship but due to Covid their flights were cancelled and they were not able to travel until July 2022. The Applicant states that her brother is eligible for the residence exemption while she is not and if the citizenship is not granted, she would be treated differently from her brother which would cause her 'considerable emotional hardship'. The Applicant stated that she is not yet ready to move to Australia. The Applicant stated that if they were biological children of their mother, the requirements would be different and they are being treated differently because they were adopted. The Applicant stated that they want the reassurance that when they are ready to move back to Australia, they can do that with the freedom of Australian citizenship.
With respect to links to Australia, the Applicant refers to presence of extended family (grandmother, aunts, uncles and cousins) and friends in Australia and states that she wants to be closer to her family in Australia.
The delegate noted that the Applicant and her family unit have been residing outside of Australia and had spent only 10 days in Australia in the two years before the application was made. The delegate noted that the Applicant had been residing outside of Australia since 2018 with very brief periods of residence in Australia. The delegate noted that the Applicant's mother - the responsible parent - has been an Australian citizen since birth and has been residing outside of Australia since 2003.
The delegate considered whether the Applicant and her family unit are likely to reside or maintain a close and continuing association with Australia. In response to the delegate's request, the Applicant provided a statement indicating that her step-brother no longer lives with them and that was one of the reasons the family could not return to Australia. The Applicant stated that once her and her brother's citizenship applications were finalised, their father could apply for permanent residence and these applications support the family's intention to return to Australia.
The delegate gave these claims 'minimal weight' noting that the Applicant and her family had spent extended periods outside Australia since the grant of the permanent visa to the Applicant. The delegate noted that there was no evidence concerning Australian employment options for Applicant's parents, no evidence concerning the Applicant's education arrangements in Australia and no evidence of the expected date for the family to return to Australia. The delegate was not satisfied the Applicant is likely to reside in Australia if the application was approved.
The delegate also considered if the Applicant and her family would maintain a close and continuing association with Australia should the application be approved. The delegate accepted that the Applicant had a close and continuing association with her Australian citizen parent and extended family but noted that the policy required association with Australia and not with Australians. The delegate noted that the Applicant had spent minimal time in Australia, and chose to pursue her tertiary education in Canada rather than Australia. The delegate submitted that this choice demonstrated that the Applicant has stronger ties to Canada than to Australia. The delegate noted that the Applicant had not provided evidence of family's property ownership in Australia. The delegate was not satisfied the Applicant had a direct or personal close and continuing association with Australia during her absences from Australia.
The delegate exercised the discretion to refuse the application for citizenship.
When making the application for review of the delegate's decision, the Applicant stated that she is an adoptee of an Australian citizen living in Canada and is not eligible to apply for citizenship by descent. She referred to having been granted an Adoption visa and stated that her trip to Australia and citizenship application were delayed. The Applicant states that if she was the biological child of her mother, she would not have applied for citizenship by conferral and would not have to prove close and continuing ties to Australia.
[3]
The Respondent in the Statement of Facts Issues and Contentions ('SOFIC') dated 25 July 2025 refers to the reasoning in Teng v MIAC[6] stating that it is appropriate to consider the Applicant's age at the time of Tribunal's consideration. The Respondent submits that the Tribunal should apply the most beneficial policy which relates to Applicants under the age of 15. The Respondent submits that whichever policy is applied, the Applicant would not meet the policy requirements. The Tribunal has determined that the most beneficial policy should be applied.
It is not in dispute that the Applicant was under the age of 18 at the time the application was made. The Tribunal is satisfied the Applicant was a permanent resident of Australia at the time of application and continues to be a permanent resident at the time of this decision, having been granted an RRV in March 2026. The Tribunal is satisfied the Applicant meets the requirements of s 21(5). The issue before the Tribunal is whether discretion should be exercised under s 24(2) to refuse to approve the Applicant from becoming an Australian citizen.
There is no evidence, and the Tribunal is not satisfied that the Applicant was usually resident in Australia when the application was made or at the time of this decision. There is nothing to suggest the Applicant is an unaccompanied humanitarian minor who falls under the Minister's guardianship. The Applicant is usually resident overseas and living with a responsible parent, Ms Kozyrakis, who is an Australian citizen and who consents to the application. As noted above, CPI 11 requires the Tribunal consider whether the Applicant is likely to reside in Australia or maintain a close and continuing connection with Australia.
[4]
Is the Applicant likely to reside in Australia?
[5]
Re Ho v MIEA[7] DP McMahon stated at [31] in relation to the phrase 'likely to reside in Australia':
[6]
"It cannot mean 'likely to take up residence in 18 months or 2 years' time' or likely to reside some time in the indefinite future if economic conditions permit and if a suitable job can be found. The juxtaposition of the phrase with the opening phrase of the paragraph indicates that the minister must be satisfied that the Applicant is likely to reside in Australia immediately or very soon after, being granted a certificate of citizenship or within a reasonable time thereafter".
[7]
Similarly, SM Taylor SC stated in Re Saba v MIBP[8] at [50]:
[8]
"The intention to which s. 21(2)(g) of the 2007 Act refers is the one that is to be acted upon with in a reasonably short timeframe".
[9]
With respect to the Applicant's likelihood to reside in Australia and to maintain association with Australia, the Minister submits that the evidence does not establish that the family intends to reside in Australia, considering:
[10]
(a) The Applicant has been residing in Canada since birth and has continued to reside outside of Australia since the grant of the Australian permanent visa; and
>
> (b) The Applicant chose to pursue tertiary education in Canada;
>
> (c) There is no evidence that the Applicant and her family have any short or medium term plans to move to Australia;
>
> (d) The Applicant's claim that her father will apply for permanent residence once her citizenship application has been approved does not evince an intent to reside in Australia;
>
> (e) The family have not provided evidence of active steps to relocate to Australia.
[11]
Ms Kozyrakis' evidence to the Tribunal is that she moved to Canada after meeting her now partner who had a small child and could not relocate to Australia. She told the Tribunal that they had always discussed the possibility of returning to Australia, and her children would be elated at the prospect, but there were various circumstances that made this difficult. Ms Kozyrakis stated that at present, her parents in law are elderly and rely on her husband and there is an expectation that they would look after the elderly parents as there are no other relatives who could support them. Ms Kozyrakis states that they could not abandon her parents in law at present.
Ms Kozyrakis' evidence suggests that there are presently considerable constraints on the family's ability return to Australia. There is no evidence to indicate that any practical steps have been taken to enable the family to return to Australia, such as arrangements for accommodation, employment, the Applicant's schooling, study or participation in other activities and there has been no application for the spouse of Ms Kozyrakis to be granted an Australian visa. Ms Kozyrakis told the Tribunal that they have not made any concrete plans to relocate to Australia and no concrete plans for the children to visit Australia and while they have always planned for the family to relocate to Australia, there are no arrangements in place at present. Importantly, Ms Kozyrakis does not claim the family has any intention of returning to Australia in the foreseeable future. Rather, there is an intention to do so at some time in the indeterminate future when certain preconditions are met.
Ms Kozyrakis also spoke about the potential difficulties of renewing the Resident Return visa (RRV), particularly if the Applicant is absent from Australia for five years continuously and that also suggests that the family's plans, at least in the immediate future, is to reside overseas and not to return to Australia.
The Tribunal is not satisfied on the evidence before it that the Applicant will return to Australia if granted citizenship. That may happen at some indeterminate time in the future but the Tribunal is not satisfied that if successful, the Applicant is likely to reside in Australia within a reasonable time or within a reasonably short timeframe.
[12]
Is the Applicant likely to maintain a close and continuing association with Australia?
"While not defined in the Act, it was not in issue that the expression "close and continuing association" should be given its ordinary meaning. As such, I accept that the expression requires more than that there be some evidence of a relevant kind of association. Rather it is to be objectively assessed, and requires "a qualitative assessment of the ultimate significance of an Applicant's circumstances": Re Sabumei and Minister for Immigration and Border Protection [2014] AATA 648 at [25]. Nor was it in issue that the concept of a "close and continuing association" is a broad one, requiring the Minister to adopt what senior counsel for the Applicant described as "a multi-factorial approach".
[15]
In Ul Haque[10] and Minister for Immigration and Citizenship[2013] AATA 118 Senior Member A K Britton stated at [44]:
[16]
"Whether or not [the Applicant] had "a close and continuing association" ... is a question of fact to be objectively assessed having regard to all relevant factors including those listed in the Instructions".
[17]
With respect to the Applicant's association with Australia, the Minister submits that the evidence does not establish that such association exists, since:
[18]
(a) The Applicant has been outside of Australia almost her entire life apart from three short trips totalling 141 days for family related events;
>
> (b) Apart from familial relationship, there is no evidence that the Applicant or her responsible parent has any involvement in the community based activities or organisations in Australia; and
>
> (c) There is no evidence of the parents' ownership of property in Australia or any other financial connection or association in Australia.
[19]
The Applicant provided a number of documents to the Tribunal including several statements of support and personal documents. There is before the Tribunal a statement from the Applicant's mother who outlines the family history and the circumstances of the visa Applicant and refers to the Applicant's close connection to the Australian family and to Australia more broadly. The Applicant provided evidence of contact with the family in Australia and multiple letters of support from family members and others.
In oral evidence to the Tribunal, Ms Kozyrakis spoke about the children identifying as Australian, buying Australian goods and waiving Australian flags at events. There are multiple supporting statements before the Tribunal, including statements from Australian family members.
In her submissions to the Tribunal the Applicant accepts that the standard as expressed in CPI 4 is one she cannot meet. The Applicant states that she agrees with the delegate's initial findings.
In considering the Applicant's association with Australia, the Tribunal accepts the Respondent submissions (with which the Applicant appears to agree) that the Applicant's connections are largely limited to the presence here of the Applicant's extended family. That does not necessarily preclude the existence of connection with Australia but in this case, there is very little evidence before the Tribunal to indicate that the Applicant has established connections with Australia beyond the presence of her extended family and a few short visits. Ms Kozyrakis' evidence is that there are no plans for the Applicant to travel to Australia. There is no evidence to indicate the Applicant is meaningfully involved in any activities that may be considered as being affiliated with Australia. The Tribunal is not convinced that wearing Australian attire, waving the flag and consuming vegemite is sufficient to establish a close and continuing association with Australia as prescribed by CPI 4. The Tribunal accepts that the Applicant has extensive family links in Australia but in the Tribunal's view, that is not sufficient to establish a close association with Australia. The Tribunal is not satisfied on the evidence before it that such connections will be different in the future.
Having regard to the totality of the Applicant's circumstances, the Tribunal is not satisfied that the Applicant is likely to maintain a close and continuing association with Australia if the application were to be approved.
[20]
Would the Applicant experience significant hardship or disadvantage?
[21]
The Respondent submits in the SOFIC that there is no evidence that the Applicant would be subject to significant hardship, disadvantage or detriment if the application was refused. The Respondent notes that the Applicant maintains citizenship in Canada and provided no reason to justify waiver of the residency policy position. The Respondent notes that the Applicant holds a visa entitling her to reside in Australia indefinitely and has appropriate access to education, health and social welfare services. The Respondent notes that Australian citizenship is not required for the Applicant to live in Australia lawfully. The Respondent further submits that the Applicant's inability to travel during Covid and the claimed disadvantage due to adoption do not result in any significant hardship due to the rights that the Applicant's current visa affords.
The Respondent also addressed the best interests of the child considerations, submitting essentially that the weight to be afforded to this consideration in the Applicant's favour should be limited in circumstances where:
[22]
(a) The Applicant is able to apply to renew her Australian visa which allows her to reside in Australia indefinitely with access to education, health and welfare services and citizenship is not required to enable the Applicant to live in Australia lawfully; and
>
> (b) The Applicant's residence status means she will not suffer severe hardship or disadvantage from not being an Australian citizen.
[23]
In oral evidence Ms Kozyrakis spoke about her daughter's needs but stated that she is more independent than her brother and is able to navigate some aspects of daily life without supports. Ms Kozyrakis claims it would be devastating for each of the children if one is treated differently than the other.
The Applicant submits that it would gradually become more and more difficult to be granted the RRV given the family's continuous absence from Australia. Ms Kozyrakis submits that there may be circumstances which would prevent the family from travelling to Australia in the future and there may be a 5 year continuous absence from Australia which would affect the Applicant's eligibility for the grant of the RRV in the future and there would be administrative difficulties when the family has to renew the visas and when they decide to come back. The Applicant submits that the legal requirements for the grant of the RRV may be changed and she may lose the eligibility for that visa in the future. The Applicant submits that the issue here is the difficulty presented by continuously applying for the RRV of what might be a very long time, versus preserving his mother's right to access return migration.
The Tribunal accepts that if the Applicant is not an Australian citizen, she would need to seek other visas to travel to Australia. The evidence is that the travel facility on the Adoption visa has now expired but the Applicant was granted an RRV in March 2026. The Tribunal accepts that the Applicant will need support in engaging in these administrative steps. The Tribunal has formed the view that the Applicant's claims as to the future visa grants are somewhat speculative. The Applicant claims that if any range of circumstances were to occur (eg death in the family or other serious difficulty), the family may be prevented from making entry to Australia. However, these claims are based on multiple assumptions, such as that there will be a significant event that would require the family to move to Australia, that it would occur outside of the period of validity of the present visa and that the Applicant will not be granted the RRV.
The Tribunal accepts that there may be some inconvenience in having to reapply for RRVs. The Tribunal is not prepared to engage in speculation as to whether future RRVs would be granted. The Tribunal is not satisfied that the inconvenience of having to renew the RRV would be of the nature or magnitude so as to amount to hardship or disadvantage. In these circumstances the Tribunal is not satisfied the Applicant would experience significant hardship or disadvantage if the application is refused.
The Tribunal has formed the view that, having regard to policy considerations, the discretion would be used to refuse the citizenship.
[24]
Are there cogent reasons to depart from policy?
[25]
It is not in dispute that the Applicant does not meet the policy requirements in relation to the citizenship grant. The key issue for the Tribunal is to determine whether there is a cogent reason to depart from policy.
The Respondent notes that in many other analogous matters the Tribunal has not found cogent reason to depart from policy and policy was departed from in circumstances where Applicants had spent majority of their lives in Australia. The Minister submits that the Applicant argues the policy is unfair and inconsistent in relation to private adoption but the Minister submits that departure from policy in the manner proposed by the Applicant would require a complete departure on all applicable policy in this matter. The Minister submits that there is nothing preventing the Applicant from residing in Australia as a holder of a permanent visa and, as the travel facility has expired, the Applicant is eligible to apply a RRV which does not in itself constitutes hardship, disadvantage or sufficient detriment to depart from policy. The Minister submits that the Applicant's request for citizenship is reflective of personal wants rather than personal needs[11] and there is no tangible detriment to the Applicant.
The Applicant submits that the policy requirements are unjust in the circumstances of subclass 102 visa holders and are unfair on expat families and that there are cogent reasons not to apply the policy. The Applicant submits that the requirement for adopted children to apply for a visa before citizenship was to ensure the children had the scrutiny equivalent to the Hague process and there is an injustice as the arrangements for citizenship can only be made when the child is under 18. The Applicant states that allowing subclass 102 visa holders to apply for citizenship is a 'self-fulfilling prophecy' in many cases. The Applicant states that the ease of travel and sense of membership in the Australian community allow for greater integration into Australian culture which then reduces pressure. The Applicant submits it is unfair to question the allegiance to Australia of children who have been privately adopted. The Applicant submits that the inability of women to pass citizenship by descent to adopted children unjustly leaves mothers in precarious positions, disconnecting children from adoptive mothers' country of origin and the practical consequence is that the children may be tied to the country of origin of the other parent once they turn 18.
The Applicant refers to the legislative history of the citizenship legislation, stating that it leads to unjust results for Subclass 102 visa holders and submits that in this case, there is no purpose relevant to protection of children that justifies different treatment to the Hague adoptees. The Applicant also submits that imposing residence requirements on Subclass 102 visa holders is outside of the scope of the legislative scheme contemplated for adopted citizenship Applicants.
The Applicant outlined in her written submission to the Tribunal the family circumstances and the circumstances leading to the adoption and she provided a number of supporting statements. The Applicant outlined in his written submission to the Tribunal the family circumstances and the circumstances leading to the adoption. The Applicant provided a number of supporting statements. Ms Kozyrakis in oral evidence spoke about extensive family connections in Australia and the Tribunal accepts that evidence. Ms Kozyrakis states that she belongs to Australia and her children belong with her. She spoke about the unfairness of having to go through the process only because the children are not her biological children.
In oral evidence Ms Kozyrakis spoke about the circumstances of adoption stating that there had been an extensive program prior to adoption and the process was very onerous before the formal adoption, through the local government agency, could take place. She states that she initially believed the children would be eligible for citizenship by descent but that was not successful. Ms Kozyrakis spoke about the hardship that her daughter would experience if her son was granted citizenship but not her daughter.
The Applicant submits that CPI should not be applied because it contradicts the stated intention of the parliament when establishing the core components of the legislative scheme concerning adoption and citizenship in Australia. The Applicant submits that CPI 4 is being enforced in an arbitrary way and contravenes the purpose of the statutory scheme of citizenship by adoption and there is no basis to differentiate between children adopted in Australia, under the Hague convention or private arrangements. The Applicant required the Tribunal to determine the 'policy limb' of the argument. The Applicant provided to the Tribunal some media reports and other materials. The Tribunal has had regard to these.
The Tribunal has considered the Applicant's submission regarding the application of policy in adoption cases and the Applicant's submission on how this matter should be addressed by the Tribunal. However, the Tribunal is of the view that it is not the role of this Tribunal to determine Australia's policy settings. The Tribunal must consider whether there are cogent reasons to depart from policy in this particular case, having regard to the Applicant's particular circumstances. The Tribunal will limit its consideration to these issues and does not propose to deal with the broader policy issues raised by the Applicant.
The Applicant submits, essentially that he should not be penalised because of being an adopted child and not the biological child of the Australian citizen parent.
The Respondent submits, in that regard, that this is the choice made by Parliament. The Respondent relies on the following comments in Koka[12]
[26]
It is therefore correct to state that Parliament does not provide a pathway to Australian citizenship for all children adopted overseas. Indeed, on the conclusion reached in this appeal, the only children born and adopted overseas for whom a pathway to citizenship is provided are those covered, since 1998 (the date Australia acceded to the Hague Convention), by Subdiv AA of Div 2 of Part 2 of the Citizenship Act.
[27]
Nor does the Citizenship Act provide a pathway for all children adopted under Australian law: both the Citizenship Act, and its predecessor the 1948 Act only incorporated provisions for children adopted in Australia to become citizens from 1984...
[28]
...Parliament has chosen, by the text and structure of the statute, the pathways to Australian citizenship, including for those who are adopted children. They are not all encompassing. There are some arbitrary lines drawn. Some might well describe them as unfair or unjust. However, these are the legislative policy choices made by Parliament.
[29]
The Respondent submits that the Applicant seeks to establish a pathway for children that is contrary to the choice made by Parliament and that would require a complete departure on all applicable policy and creation of new policy which, as Brennan J stated in Drake, 'would be manifestly imprudent for the Tribunal'.[13]
The Tribunal accepts the evidence concerning the circumstances of the adoption and the evidence regarding the Applicant's present circumstances. The Tribunal is also prepared to accept that there may be some 'inconvenience' in having to regularly reapply for the RRV and uncertainty as to the future visa grant.
The Applicant refers to the strong connection to Australia, including through her parents. The Applicant submits that the hardship to which the policy refers, applies here. Ms Kozyrakis states that the interests of the two children must be considered together and cannot be disentangled, stating that it would be unfair to expect the 2 year residence in Australia requirement to be met. Ms Kozyrakis submits that having the Australian citizenship is very important to the children psychologically. The Applicant submits that the particular circumstances of this case are such that here is injustice and unfairness if the citizenship is not granted and there are cogent reasons to depart from the policy.
The Applicant claims private adoptions that are not done under the Hague Convention should not be treated differently, but such adoptions are treated differently in the legislation. It is not a matter of policy but the law adopted by the Australian Parliament. (The Applicant seems to agree that it was the intended consequence of the legislation that adoptions under the Hague Convention would be treated to private adoptions).
The Tribunal has considered the Applicant's submission regarding the application of policy in adoption cases and the Applicant's submission on how this matter should be addressed by the Tribunal. However, it is not the role of this Tribunal to determine Australia's policy settings. Generally, the Tribunal accepts the Respondent's submission that the policy, whether fair and just, reflects the government policy that makes a distinction for certain groups of children. The Applicant's own submission is that the parliament had intentionally established a different regime for children adopted outside of the Hague Convention to ensure greater scrutiny. The Tribunal does not accept the Applicant's claims that she has been misled by the Departmental policy or acted in reliance of such policy to her detriment.
In claiming that there are reasons to depart from policy, the Applicant refers to the family's circumstances and the circumstances of her adoption, her personal circumstances and wider policy settings. However, the Tribunal acknowledges the Respondent's submission that to adopt the position proposed by the Applicant would require a complete departure from all policies and the Applicant has not established, in the Tribunal's view, hardship, disadvantage or the uniqueness of her situation to justify such a departure.
In circumstances where the Tribunal has determined that:
- the Applicant is not likely to reside in Australia within a reasonable time in the future;
- the Applicant may have a connection to Australian relatives but has not established that she will maintain a close and continuing association with Australia;
- the Applicant has not established significant hardship or disadvantage if the citizenship is not granted; and
- the Applicant has not established personal circumstances that would justify departure from policy,
[30]
the Tribunal does not consider there is a cogent reason to depart from policy.
[31]
Further, when considering the overall circumstances of this case (and the factors noted above such as the Applicant's connection to Australia being, largely limited to the presence of extended family, no immediate plans to return to Australia or to establish residence in Australia in the foreseeable future and very limited time spent in Australia in the past), even without the application of policy, the Tribunal considers that the correct and preferable decision would exercise the discretion in s 24(2) to refuse to approve the Applicant from becoming an Australia citizen. It follows that the decision under review should be affirmed.
[32]
Solicitor for the Applicant: Mr B. Watt, Watt Migration
[33]
Solicitor for the Respondent: J. Djasmeini, Minter Ellison