respondent. The AAT affirmed the delegate's decision to refuse the applicant's citizenship application; the Tribunal concluded the applicant did not meet the Instructions' policy requirements and his...
Key principles
Where an applicant under s 21(5) of the Australian Citizenship Act 2007 is eligible on the legislative criteria but does not meet the Departmental policy guidelines (notably...
The best interests of the child are a primary consideration only where the applicant is under 18 at the time of decision; where the applicant is over 18 on review, that...
An applicant’s degree of acculturation, ties to Australia and disappointment at being prevented from pursuing certain careers do not, without more, make the circumstances...
Issues before the court
Whether the Tribunal should exercise the Minister's discretion under s 24(2) to approve citizenship despite the applicant being ineligible under the...
Whether 'best interests of the child' is a relevant primary consideration on review when the applicant is over 18 at the time of the Tribunal...
What constitutes 'significant hardship or disadvantage' warranting approval outside policy?
Plain English Summary
The AAT affirmed the Minister's delegate's refusal of a citizenship application by a Moldovan-born applicant who had lived in Australia since childhood on a temporary (457) visa. Although eligible under the statutory age provision, he was not a permanent resident and did not meet residence requirements in departmental policy. The Tribunal held that decision-makers should follow the Australian Citizenship Instructions unless their application would be unlawful or produce an unjust result. The applicant's ties to Australia, career aspirations and inconvenience in travel did not amount to the 'unusual' circumstances or 'significant hardship' needed to override policy, so the refusal was confirmed.
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
2,118 words · generated 13/07/2026
What happened
This is a merits review in the Administrative Appeals Tribunal (AAT) of a delegate's refusal of an application for Australian citizenship by conferral. The applicant, Mr Nicolae Cudrea, was born in Moldova in August 1991, arrived in Australia in July 2000 as a dependent on a subclass 457 visa, and lodged an application for citizenship on 14 August 2009 under s 21(5) of the Australian Citizenship Act 2007 (he was aged under 18 at lodgement) (Background). A delegate refused the application on 21 May 2010 because, although the applicant was eligible under s 21(5) by age, he did not satisfy the Department's policy requirements in the Australian Citizenship Instructions, principally because he was not a permanent resident and did not satisfy the residence requirements in policy. The delegate concluded there were no 'unusual' circumstances warranting approval outside policy. The applicant sought AAT review; the Tribunal (Deputy President R P Handley) heard the matter and, on 21 December 2010, affirmed the delegate's decision (Decision and Reasons; Decision: "The decision under review is affirmed").
Cited legislation
1 cited instrument linked from this judgment.
The factual matrix relied on by the Tribunal included: long residence and schooling in Australia (arrived aged eight, completed HSC in 2009), family ties (parents and sister in Australia, sister a permanent resident), aspirations to join the Royal Australian Air Force, financial constraints that would make tertiary study as an international student burdensome, and some travel inconvenience when visiting Germany on a Moldovan passport (he needed a visa). The applicant conceded he did not meet the Instructions' residency and permanence requirements. The central question was whether his circumstances were sufficiently 'unusual' or amounted to 'significant hardship or disadvantage' so as to justify approval of citizenship despite non-compliance with policy.
The Tribunal applied the statutory framework and the Instructions, concluded that best interests of the child were not a primary consideration on review because the applicant was no longer under 18 at the time of decision, and found his disadvantages (difficulty entering some countries without visa, the cost of tertiary study as an international student, inability to join the Defence Force, difficulties if returned to Moldova) were not 'significant' as addressed in Attachment B to the Instructions. The Tribunal therefore affirmed the refusal.
Why the court decided this way
The Tribunal's reasoning followed a straightforward application of statutory discretion and departmental policy. Two legal propositions drove the result.
Statutory discretion and scope of policy guidance. Section 24(1A) and (2) of the Australian Citizenship Act require the Minister to approve or refuse an application by writing; subsection (2) expressly allows refusal even where the applicant is otherwise eligible. The Tribunal observed that s 24(2) does not list the factors for exercise of discretion and noted, citing Minister for Aboriginal Affairs v Peko-Wallsend Ltd, that the discretion is 'similarly unconfined' (Reasons [3]). Against that statutory background the Australian Citizenship Instructions provide policy guidance. The Instructions themselves state they support the Act, provide guidance, and must not be applied inflexibly; policy cannot constrain delegated powers under the Act (Instructions quoted in Reasons [3]). The AAT therefore treated the Instructions as authoritative guidance which should ordinarily be followed, subject to unlawfulness or an unjust result in a particular case, the proposition the Tribunal linked to Re Drake (Reasons [3]).
Application of the "unusual circumstances" gateway and Attachment B. The Instructions set out policy guidelines for applicants aged 16–17, including permanent residence and residence requirements, and state that where an applicant does not meet the policy guidelines decision-makers must consider whether the application nevertheless warrants approval because of the 'unusual nature of those circumstances' (Instructions quoted). Attachment B explains 'significant hardship and disadvantage' by reference to dictionary definitions and gives illustrative categories (inability to get employment because jobs are restricted to citizens, travel difficulties due to passport, or academic/sporting opportunities limited to citizens). The Tribunal applied that framework to the facts. It accepted that the applicant was acculturated and attached to Australia and that denial might cause some hardship (Reasons [2]), but found these disadvantages were not "significant" in the Attachment B sense. Key factual points informing that conclusion were: his temporary visa permitted work until February 2013; he could apply for student visas to study in Australia (albeit at international fees); his employment rejections appeared in part due to lack of experience rather than visa status; he speaks conversational Russian which mitigates reintegration difficulties in Moldova; and military service is commonly tied to citizenship and therefore not unusual (Reasons [3], [4], [5], [9], [10], [11]). On that basis, the Tribunal found no special grounds to depart from the Instructions and affirmed the refusal (Reasons [11], [12]).
Two other points shaped the decision. First, the Tribunal emphasised that the 'best interests of the child' primary consideration in the Instructions applies only where the child is under 18 'at the time of decision' (Instructions). Because Mr Cudrea was 19 at review, that consideration did not apply (Reasons [3]). Second, the Tribunal relied on several recent AAT authorities (Pak, Park, Kim) for the proposition that students who have been educated in Australia and formed ties here commonly seek citizenship and that such circumstances on their own are not 'unusual' (Reasons [6], [7], [8]).
Before and after state of the law
Before this decision (and reflected in it) the law is that:
The Minister's discretion under s 24(2) is legally unconstrained in the sense that the statute itself does not prescribe exhaustive factors, and departmental policy will normally be a controlling practical guide for decision-makers (the Tribunal cited Peko-Wallsend for the principle that unconfined statutory discretions must still be exercised lawfully) (Reasons [3]).
The Australian Citizenship Instructions are the operative departmental policy. They are not binding law but provide the standard framework and identify when decision-makers should depart from policy: where adherence would be unlawful or cause an unjust result, or where the applicant's circumstances are 'unusual' and demonstrate 'significant hardship or disadvantage' as set out in Attachment B (Instructions reproduced in Reasons).
This AAT decision applies that existing regime and does not alter precedent. It reinforces that ordinary consequences of non-citizenship, travel visa requirements, restricted access to some government employment, higher education fees for non-citizens, are not, without more, 'significant hardship' warranting departure from policy. It also confirms that the 'best interests of the child' consideration does not apply when the applicant is over 18 at the time of decision on the application.
The decision therefore affirms the settled approach: departmental policy will be followed unless there is persuasive evidence of special, unusual circumstances amounting to significant hardship, and that ordinary ties to Australia are insufficient to trigger exceptional treatment.
Key passages with plain-English translation
Instruction status and flexibility (Instructions quoted in Reasons):
Text: "Decision makers should be mindful that policy must not be applied inflexibly. Policy cannot constrain the exercise of delegated powers under the Act."
Plain English: The Instructions are strong guidance but do not eliminate the ability to depart from policy in exceptional cases; policy cannot override the statutory power.
Discretion to refuse despite eligibility (Reasons):
Text: "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 requirements."
Plain English: Even if a person meets the statutory minimums (for example, age), the Minister can refuse if the person fails to meet the department's policy conditions (like being a permanent resident); that refusal is the normal course unless unusual circumstances exist.
Definition and application of 'significant hardship' (Attachment B and Reasons):
Text (paraphrase): Attachment B lists inability to get employment restricted to citizens, travel difficulty because of passport, or restricted academic/sporting opportunities as examples of significant hardship.
Plain English: To overturn policy you need more than disappointment or inconvenience; you need convincing evidence of serious, material detriment such as being barred from any suitable employment, being unable to travel for essential reasons, or being prevented from realising an academic or sporting career in a way that is genuinely consequential.
Tribunal conclusion (Reasons):
Text: "Thus, in my view Mr Cudrea's circumstances are not unusual and the rejection of his application... will not cause him significant hardship or disadvantage..."
Plain English: The Tribunal found nothing exceptional in this case to justify making an exception to the ordinary policy rules; the refusal stands.
What fact patterns trigger this precedent
This decision is directly relevant where:
An applicant for Australian citizenship by conferral is eligible under a statutory provision (such as s 21(5) for those under 18 at lodgement) but does not meet Departmental policy requirements (not a permanent resident; does not satisfy departmental residence requirements).
The applicant relies on long residence and schooling in Australia, family ties, career aspirations linked to citizenship, higher education cost as an international student, travel inconvenience, or possible hardship on return to the country of origin.
Decision-makers must decide whether those facts are 'unusual' or give rise to 'significant hardship or disadvantage' that justify approving citizenship outside the standard policy.
Under this precedent, ordinary acculturation and disappointment at missed career options, or the need to obtain visas to travel, generally will not be enough. To succeed, an applicant must show materially more: inability to obtain any employment because jobs are reserved for citizens with no reasonable alternative, or compelling evidence that return would cause severe and momentous hardship as defined by Attachment B.
How later courts have treated it
This AAT decision itself cites and aligns with other AAT decisions (Pak [2010] AATA 157, Park [2010] AATA 886, Kim [2010] AATA 198), treating them as persuasive authority on what is 'unusual' and on the approach to student-applicants. The Tribunal referenced the Re Drake principle, which is a long-standing AAT position about following policy unless unlawful or unjust. The decision does not purport to create novel legal doctrine, but reinforces established AAT practice: apply Instructions unless the applicant demonstrates exceptional hardship. This decision will be used by practitioners and tribunals as a recent example of the application of Attachment B and the 'unusual circumstances' gateway.
Because this is an AAT decision, it is persuasive for other tribunal panels and may be cited in future merits reviews. Higher courts have not been asked in this matter to overturn or modify the guiding principles; the decision sits within a consistent line of administrative practice.
Still-open questions
Quantifying 'significant hardship': Attachment B provides examples and dictionary definitions, but does not supply a test with bright-line criteria. What degree of financial burden, travel impediment, or career limitation will cross the threshold remains fact-specific. Future cases will need to delineate where cumulative but non-catastrophic disadvantages aggregate into 'significant' hardship.
The role of temporary visas with limited duration: Where a temporary visa permits work/study for a limited period (as here until 2013), tribunals will weigh the remaining period heavily. Cases where the visa has short remaining duration versus longer duration may differ. How much remaining visa life is sufficient to avoid a finding of hardship is not settled.
Best interests where lodgement occurs under 18 but decision occurs after 18: The Instructions say best interests applies only if the child 'is or would be less than 18 years of age at the time of decision'. That raises practical and fairness issues for applicants who age out during the review process. The decision confirms the literal application of the instruction, but whether that is always appropriate remains a policy and perhaps legal question.
Interaction of policy and statutory discretion: The Tribunal affirmed that policy cannot constrain statutory power and can be departed from where application would be unlawful or unjust. The boundary between 'unjust' and 'unusual' remains a matter of discretionary evaluation. Lower tribunals will continue to struggle where systemic disadvantage (for example, chronic barriers to permanent residence for certain cohorts) exists but does not fit Attachment B examples.
Weight to be accorded to applicant aspiration (eg Defence Force): The decision treats aspirational goals (joining the RAAF) as a 'personal want' rather than a hardship. It remains open whether, in some circumstances, denial of access to career paths intrinsic to cultural and family circumstances might amount to significant hardship.
Practitioners should therefore assemble focused evidence directed to Attachment B: documentary proof that employment opportunities are closed to the applicant, evidence that tertiary pathways are wholly closed without citizenship, or evidence of specific and severe hardship on return to country of origin (financial inability to be supported, inability to access any education, persecution, or equivalent). General ties to Australia, language acquisition issues and disappointment at deferred aspirations are unlikely to succeed in isolation.
Judgment (41 paragraphs)
[1]
Cudrea and Minister for Immigration and Citizenship [2010] AATA 1036 (21 December 2010)
IMMIGRATION & CITIZENSHIP - refusal to grant citizenship - applicant between 16 and 18 years of age at time of application - Australian Citizenship Instructions - applicant does not meet policy requirements - circumstances not unusual - decision under review affirmed
Park and Minister for Immigration and Citizenship[2010] AATA 886
[9]
Re Pak and Department of Immigration and Citizenship[2010] AATA 157
[10]
Re Kim and Minister for Immigration and Citizenship[2010] AATA 198
[11]
Australian Citizenship Instructions (in effect 21 September 2009 to 8 November 2009)
[12]
Mr Cudrea has applied to the Tribunal for a review of a decision of a delegate of the Minister of Immigration and Citizenship (the Minister) to refuse his application for Australian citizenship by conferral. The issue for the Tribunal is whether this is the correct or preferable decision.
[13]
Mr Cudrea was born in the Republic of Moldova in August 1991. He arrived in Australia on 21 July 2000 at the age of eight on a subclass 457 Business (Long Stay)(Temporary) visa as a dependant of his father. Apart from a two-month holiday in Moldova in 2010, he has been resident in Australia since July 2000 and has been granted further subclass 457 visas as a dependant. His most recently granted visa is valid until 9 February 2013.
On 14 August 2009, Mr Cudrea lodged an application for citizenship by conferral pursuant to s 21(5) of the Australian Citizenship Act 2007 (the Act). The application was refused by a delegate of the Minister on 21 May 2010 on the ground that his circumstances did not meet the relevant policy requirements outlined in the Australian Citizenship Instructions (the Instructions) and his circumstances did not otherwise warrant approval outside such policy. On 23 June 2010, Mr Cudrea applied to the Tribunal for a review of this decision.
[14]
At the time Mr Cudrea made his application to become an Australian citizen, s 21(1) of the Act provided that a person may make an application to the Minister, and s 21(5) stated:
[15]
(5) A person is 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.
[16]
The power to approve, or to refuse to approve, a person becoming an Australian citizen is set out in s 24 of the Act, which provides relevantly:
[17]
(1) If a person makes an application under section 21, the Minister must, by writing, approve or refuse to approve the person becoming an Australian citizen.
[18]
(1A) The Minister must not approve the person becoming an Australian citizen unless the person is eligible to become an Australian citizen under subsection 21(2), (3), (4), (5), (6), (7) or (8).
[19]
(2) The Minister may refuse to approve the person becoming an Australian citizen despite the person being eligible to become an Australian citizen under subsection 21(2), (3), (4), (5), (6) or (7). ...
[20]
Section 24(2) does not state the factors that may be taken into account when exercising the discretion to refuse approval of a grant of citizenship, and the discretion of the decision-maker is therefore similarly unconfined (see Minister for Aboriginal Affairs v Peko-Wallsend Ltd[1986] HCA 40; (1986) 162 CLR 24 per Mason J at 40).
However, the Government has developed policy in the form of the Instructions to provide guidance to decision-makers. The introduction to the Instructions states that their role is:
[21]
... to support theAustralian Citizenship Act 2007. The instructions provide guidance on policy in relation to the interpretation of, and the exercise of powers under, the Act and the Regulations. Decision makers should be mindful that policy must not be applied inflexibly. Policy cannot constrain the exercise of delegated powers under the Act.
[22]
Decision-makers should generally apply policy such as the Instructions unless the policy is unlawful or its application produces an unjust result in the circumstances of a particular case: Re Drake and Minister for Immigration and Ethnic Affairs (No 2)[1979] AATA 179; (1979) 2 ALD 634. I am not satisfied that there is any good reason why the Instructions should not be followed in the present case.
The Instructions specify criteria for determining citizenship applications. The relevant Instructions are those in effect immediately prior to 9 November 2009, which stated relevantly:
... 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 requirements. 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.
...
POLICY GUIDELINES
Applicants aged 16 years and over and under the age of 18
Applicants aged 16 years and over and under the age of 18 (that is, aged 16 or 17 years) must make an application on a form that contains no other application. This is set out in s 46(2A) of the Act.
Applicants aged 16 years and over and under the age of 18 would usually be approved under s 24 if they meet the following policy guidelines:
[24]
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.
[25]
...
In the case of an applicant who does not meet the policy guidelines 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 unusual nature of those circumstances.
[26]
Guidance on whether it may be reasonable to consider a particular set of circumstances as unusual can be obtained from the National Office through the Citizenship Help Desk.
[27]
The Instructions set out above relevantly identify three primary considerations to be taken into account by the decision-maker: the legislative requirements, the best interests of the child and the policy guidelines. Mr Cudrea was aged under 18 at the time he made an application and therefore meets the legislative requirements in s 21. Moreover, since Mr Cudrea, is now 19 and is no longer a child, the best interests of the child are no longer a relevant consideration for the Tribunal on this review. Where the policy guidelines are not met, the decision-maker must also consider whether the application should, nevertheless, be approved because of the unusual nature of the circumstances.
In relation to significant hardship or disadvantage, Attachment B states:
[28]
ATTACHMENT B - SIGNIFICANT HARDSHIP AND DISADVANTAGE
The Macquarie Concise Dictionary and Collins Concise English Dictionary, Australian Edition make the following definitions:
[29]
of consequence;
important or momentous
[30]
conditions of life difficult to endure;
something that causes suffering or privation
[31]
an unfavourable circumstance, thing, person;
injury, loss or detriment
[32]
People would normally be required to demonstrate some or all of the following circumstances:
[33]
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
academic (eg 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.
[34]
Decision makers will need to assess each application on its merits. While policy is not to be applied inflexibly, it must be applied, unless there are special circumstances that would warrant consideration outside that policy.
Evidence of significant hardship and disadvantage is required (eg a statement in writing, with appropriate supporting documentation to demonstrate how they meet the legal and policy requirements).
The onus is on the applicant to provide the evidence to support the application.
Decision makers must be mindful of the difference between personal needs and personal wants.
Personal needsrelate 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 wantsare aspirations and generally do not constitute hardship (ie the right to vote, election to Parliament, HECS availability, representing Australia internationally in academics or sport).
Australian citizenship is not a requirement to study in Australia. Australian universities are permitted to admit students who are not Australian citizens. ...
[35]
Mr Cudrea concedes that he does not satisfy the policy guidelines because he is not a permanent resident and does not satisfy the residence requirements set out in s 22. The Tribunal must therefore consider the full circumstances of the case to determine whether the application nevertheless warrants approval because of the unusual nature of those circumstances and, in particular, whether Mr Cudrea would suffer significant hardship or disadvantage by reason of the refusal of his application for citizenship.
[36]
Mr Cudrea said he has resided in Australia since arriving on 21 July 2000 at the age of eight. He completed his secondary education at Blacktown Boys High School, sitting for and being awarded the Higher School Certificate (HSC) in 2009. Mr Cudrea stated that he regards Australia as his home, where his friends and future are.
Mr Cudrea said Moldova is a very small country (population 3.5 million) and his father initially left in order to find better employment elsewhere. His father first came to Australia in 1998 and Mr Cudrea, his mother and sister joined his father here in 2000. Mr Cudrea had by this time spent about a year studying English and, on arrival, he studied English intensively for another three months.
Mr Cudrea's father, who does labouring type jobs in the construction industry, has just lost his third sponsor and is looking for another. He is hopeful of being successful in doing so. Mr Cudrea said that for the past six or seven years, his mother has worked at a Strathfield home for the aged as a personal carer. His sister, who is 10 years older than him, has been married to an Australian citizen for the past four or five years and has two children. She is a permanent resident and applying for Australian citizenship.
While at school, Mr Cudrea utilised the careers advisory service there and attended careers conventions. He said he has realised that being the holder of a temporary visa limits his choice of career. Not being a permanent resident bars him from applying for apprenticeships and, in particular, not being an Australian citizen bars him from applying to join the Australian Defence Force. His goal is to join the Royal Australian Air Force (RAAF). According to advice he received from a Department of Defence recruitment officer, he would otherwise stand a good chance of being accepted since he is young, fit and educated. This is very disappointing for him because his ambition is to become a RAAF pilot.
Mr Cudrea acknowledged that he can undertake tertiary study either at a TAFE college or university, but said this will be very expensive and an enormous burden on his parents causing them severe financial hardship. While at school, he undertook accounting and business service courses at TAFE as part of his HSC but found them very basic and uninteresting. The aviation and aeronautical engineering courses available at TAFE, of two years' duration, are also quite basic and are the sort of material that would be covered in a couple of months if he was accepted into the Defence Force.
[37]
Ms Collins, for the Minister, submitted that the Tribunal should exercise the Minister's discretion to refuse Mr Cudrea's application for citizenship because the circumstances of his case do not warrant a departure from departmental policy. While acknowledging that Mr Cudrea is eligible for citizenship pursuant to s 21(5) of the Act, he is not a permanent resident and the Tribunal should not be satisfied that he would suffer significant hardship or disadvantage in meeting the residence requirements. In particular, referring to the three sets of circumstances referred to in Attachment B (see above), Ms Collins said there is no evidence to indicate that his lack of citizenship prevents him obtaining employment. Mr Cudrea's visa permits him to work and it appears from his evidence that most of his job applications have been unsuccessful as a result of his lack of experience.
The Minister acknowledges that Mr Cudrea is prevented from joining the Australian Defence Force and from obtaining various government subsidies by reason of his not being an Australian citizen. However, this does not prevent him from obtaining alternative employment. Moreover, his wish to join the RAAF is a 'personal want' and the guidelines state that failure to meet such aspirations does not generally constitute hardship.
The Minister contends that being required to obtain a visa to visit another country should not be considered hardship or a significant disadvantage. Also, in terms of tertiary education, lack of citizenship does not prevent Mr Cudrea enrolling in university or TAFE courses although he will have to pay higher fees as an international student.
Ms Collins submitted that Mr Cudrea's circumstances are not unusual and are similar to those of many children who have accompanied their parents to Australia. The Minister acknowledges that Mr Cudrea has established connections and has friends here, but this is not unlike many children who have lived in Australia and studied here for a lengthy period. As a student in Australia, it is always open to Mr Cudrea to apply for student visas to continue his education in Australia, and it may be possible for him to apply for other visas in due course.
Ms Collins noted that Mr Cudrea has learned several different languages, and submitted that learning Moldovan will not constitute hardship. With regard to having to undertake military service if he returns to Moldova, it is not unusual for such a responsibility to be allied with citizenship of a country.
[38]
As stated above, notwithstanding that Mr Cudrea, as the holder of a temporary visa, does not satisfy the residence requirements stipulated in the policy guidelines contained in the Australian Citizenship Instructions, the Tribunal must consider the full circumstances of his case. The Tribunal must determine whether his citizenship application warrants approval because of the unusual nature of his circumstances and, in particular, whether the residence requirements should be disregarded as a result of Mr Cudrea suffering significant hardship or disadvantage by reason of the refusal of his application for citizenship.
The evidence suggests that Mr Cudrea's father came to Australia looking for better employment opportunities and that he and Mrs Cudrea have sought to provide Mr Cudrea with a good education in Australia. Having now finished his secondary education, Mr Cudrea aspires to be a RAAF pilot and has been thwarted in pursuing this by reason of the requirement that recruits must be Australian citizens. He is concerned by the expense of his continuing with tertiary education because of the international student fees that will need to be paid. His evidence indicates that his parents are not wealthy and have, at times, struggled to pay his school fees. Understandably, he would prefer not to impose any further financial burden on them.
However, Mr Cudrea's visa permits him to work and, while to date he has not been successful in finding employment, it appears that in at least some instances this has been because of his lack of experience in the positions for which he has applied. In this, he is in a similar position to many young people trying to find employment for the first time. It is not an unusual situation.
Mr Cudrea also referred to his recent experience, while travelling on his Moldovan passport, of having to obtain a visa to enter Germany, which would not be required if he were able, as an Australian citizen, to obtain and travel on an Australian passport. The need to obtain a visa to enter another country is a common requirement and, in my view, there is nothing unusual about this. There are many countries which require Australian passport holders to obtain a visa before allowing entry.
With regard to educational opportunities, it is open to Mr Cudrea to apply for a student visa to enable him to study in Australia and, while he will be required to pay fees as an international student, a student visa would ordinarily permit him to work on a part-time or casual basis. I accept that this may impose a further financial burden on his parents but this is something they have managed in the past with the need to pay school fees. I agree with the Tribunal in that there is nothing unusual about this.
[39]
I certify that the 39 preceding paragraphs are a true copy of the reasons for the decision herein of Mr R P Handley, Deputy President.
Respondent representative: Ms A Collins, Clayton Utz
Parties
Applicant/Plaintiff:
Minister for Aboriginal Affairs
Respondent/Defendant:
Peko-Wallsend Ltd
Legislation Cited (1)
Citizenship Act 2007
Cases Cited (3)
(1986) 162 CLR 24
(1986) 66 ALR 299
(1986) 60 ALJR 560
AI Analysis
Outcomerespondent
Disposition:
The AAT affirmed the delegate's decision to refuse the applicant's citizenship application; the Tribunal concluded the applicant did not meet the Instructions' policy requirements and his circumstances were not 'unusual' nor causing 'significant hardship' so as to warrant approval outside policy.
Mr Cudrea provided copies of various job advertisements and the covering emails he has sent in applying for these positions. To date, his applications have been unsuccessful. He had one response asking about his visa status and when he informed the prospective employer of his current status (that allows him to work), he heard nothing further. Five other responses have indicated that he does not have the experience for which many employers are looking.
Mr Cudrea, who speaks fluent English, said he and his parents speak a mixture of Russian and English at home. Both his parents are Russian speaking and Mr Cudrea speaks conversational Russian. However, he can only read very slowly in Russian and cannot write in Russian, in part because of the different alphabet. Mr Cudrea said it was compulsory for him to study Italian at high school for two years and he studied Italian for a further year, largely because of the good teacher, but it was not conversational Italian. He does not find learning languages particularly easy.
Mr Cudrea said he returned to Moldova in July 2010 for the first time since leaving, accompanying his father who was visiting his parents there. They were away for about two months, returning mid-September. They stayed with Mr Cudrea's grandparents who live on the outskirts of the Moldovan capital, Chisinau. Mr Cudrea spent his time there with his grandparents and their friends and helping his grandfather in his large vegetable garden. Mr Cudrea also went with his father to Germany for five days - to Munich - to visit his father's sister who lives there. In order to enter Germany, he and his father had to obtain tourist visas, which were only granted upon sponsorship from his father's sister who is a German citizen.
Mr Cudrea said his grandparents speak Russian at home. His grandmother also speaks some Moldovan, like his father, but not his grandfather, who originally came from the Ukraine and also speaks Ukrainian. Mr Cudrea said he cannot speak Moldovan. When he was at school in Moldova before becoming to Australia, the first language was Russian and students did not start learning Moldovan until year 2, which he did not complete. Moldovan is a language similar to Romanian. Mr Cudrea said that since the collapse of the Soviet Union, a lot of people in Moldova condemn those who speak Russian. He said he thought it would take him at least two years to learn Moldovan during which time he would continue to be dependent on his parents.
Mr Cudrea said he also does not know "the culture of how they do things in Moldova" and with his being unable to speak Moldovan, he thinks it would be very difficult for him to get a decent job there. His grandparents, who are retired and living on a pension, would be unable to support him. Further, he could not enrol in university in Moldova because he did not finish school there, but, being over 18, he would be liable to do 12 months' military service. His grandparents do not want him to return to Moldova because "it is not much of a life there".
Moreover, it is not surprising that after 10 years in Australia, Mr Cudrea has become acculturated and attached to the Australian way of life. Ms Collins referred to a number of recent Tribunal decisions in which applications for citizenship by students who are not permanent residents have been considered and whether their circumstances are unusual: for example, Re Pak and Department of Immigration and Citizenship[2010] AATA 157 (Pak); Re Kim and Minister for Immigration and Citizenship[2010] AATA 198.
In Pak, at [10], Justice Buchanan said, and I agree, that the fact that a student has spent a lengthy period studying in Australia, has formed close personal ties here and is sincere in wishing to become an Australian citizen is not unusual. In my view, it would not be considered 'unusual', in the sense of the word's ordinary meaning of something which is 'uncommon', for students who have spent some years studying in a country other than that of their citizenship, and who have become acculturated into that community, to wish to remain there where to do so is perceived to be beneficial.
As Justice Buchanan pointed out in Pak, refusal of citizenship at this stage does not shut the door on a person later achieving permanent residency if the relevant requirements are met and, ultimately, in the future, being granted citizenship.
I accept that if Mr Cudrea has to return to Moldova this is likely to cause him some hardship because he may have to learn the Moldovan language and he may have some difficulty finding employment or gaining access to tertiary education. However, in my view any hardship or disadvantage would not be 'significant' in the sense of being important or momentous, bearing in mind that Mr Cudrea can speak Russian conversationally (Russian being a recognised language in Moldova), which would allow him to communicate. Moreover, until the expiry of his visa in February 2013, Mr Cudrea can work and study in Australia and, as mentioned above, it is open to him to apply for a student visa to enable him to study here.
With regard to having to undertake military service if he returns to Moldova, I agree with Ms Collins that this is commonly a requirement of citizenship of a country. Equally, it seems likely that citizenship will commonly be a prerequisite of entry into a country's defence force.
Thus, in my view Mr Cudrea's circumstances are not unusual and the rejection of his application for Australian citizenship by reason of his not satisfying the residence requirements will not cause him significant hardship or disadvantage such that his circumstances warrant approval of his citizenship application without the normal policy requirements being met.
Thus, the decision to not approve Mr Cudrea's application for citizenship should be affirmed.