Minister's decision

(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.

Note: The Minister may cancel an approval: see section 25.

(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).

(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).

1. The Australian Citizenship Instructions (the Instructions) have been issued under the Act. The introduction to the Instructions states that their role is:

... to support the Australian 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.

1. Chapter 5 of the Instructions provides that applications for citizenship under the Act made by persons aged between 16 and 18 years of age would usually be approved under s 24 of the Act if, among other things, the applicant meets the following policy requirements:
   • 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

...

In the case of an applicant who does not meet the policy requirements above, decision makers must consider the full circumstances of the case, including the best interest of the child, to determine whether the application nevertheless warrants approval because of the exceptional nature of those circumstances. The circumstances would need to be very unusual to warrant approval of an application outside policy.

...

SHOULD MR YOUM'S APPLICATION FOR CITIZENSHIP BE APPROVED?

1. The issue to be determined is whether Mr Youm's application for citizenship should be approved. The Act does not specify the factors to be taken into account by the Minister, or the Tribunal acting as substitute decision-maker, when exercising the power to approve an application for Australian citizenship. The power is unfettered. The Act does not prescribe the factors to be taken into account when exercising that power and therefore the subject matter, scope and purpose of the Act must be considered: Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40; (1986) 162 CLR 24 at 39-40 per Mason J. It is agreed that in exercising the power to approve Mr Youm's application, I must have regard to the Instructions as they relate to persons who were between the age of 16 and 18 years at the time they applied for citizenship. Unless there is a cogent reason not doing so I am required to apply the Instructions: Re Drake v Minister for Immigration and Ethnic Affairs (No 2) [1979] AATA 179; (1979) 2 ALD 634.
2. As Mr Youm does not meet the "policy requirements" in that he is not a permanent resident and does not meet the statutory residence requirement, the Instructions direct that the "full circumstances of the case" must be considered to determine whether his application should be approved because of the "exceptional nature of those circumstances". It is agreed that the applicable part of the Instructions is that relating to persons who were between the age of 16 and 18 years when they applied for citizenship. It is also agreed that as Mr Youm is now 18 years of age, "best interest of the child" considerations do not apply.
3. Visa status: Mr Youm holds a temporary long stay business visa (sub-class UC 457), valid until January 2012. Mr Youm's visa allows him to work and study in Australia without restriction. Under current immigration rules he can apply for further work or study visas as required.
4. Family: Mr Youm's parents and two siblings currently reside in Australia. Like Mr Youm, his parents and siblings also hold 457 visas that are valid to January 2012. Mr Youm's extended family continues to reside in South Korea.
5. Education: Since arriving in Australia in 2007, Mr Youm has undertaken a number of English language courses. He is currently enrolled in Year 10 at Canterbury Boys High School, Sydney, where he has been enrolled since 2008. His school reports indicate that Mr Youm is a diligent student and has made solid progress in his studies including learning the English language.
6. Mr Youm gave evidence that he wishes to follow in his father's footsteps and pursue a career as a welder. He states that he would have enrolled in a welding course at TAFE this year but cannot afford the full fees, which he would be required to pay on account of his visa status.
7. Contacts in Korea: Mr Youm states that since living in Australia he has not maintained contact with any friends in Korea. He claims that as a consequence if he were to return to Korea he would be "completely lost".
8. Association with Australia: Mr Youm claims that after some initial hesitance he came to enjoy life in Australia. Among other things, he says he appreciates Australia's educational, environmental and economic systems and enjoys the country's food and culture. Mr Youm claims to made a number of friends during his time in Australia.
9. Findings and conclusions I accept that Mr Youm wishes to make Australia his home and is prepared to pledge loyalty to Australia and respect its laws. I also accept that his commitment to his studies indicates that it is likely that if he remains he will make a useful contribution to the Australian community. There is nothing to suggest that he is a person other than of good character.
10. I am not persuaded however that his circumstances could be described as "exceptional". Mr Youm currently holds a visa which allows him to remain in Australia for another two years and work and study without restriction. The members of his immediate family are in the same position. There is no bar to Mr Youm applying for further work or study visas. It seems that the only material detriment Mr Youm would suffer if not granted citizenship would be that he may be unable to enrol in TAFE because of his inability to pay full fees. I acknowledge he would also suffer the intangible detriment of some uncertainty over his ability to remain in Australia on an indefinite basis.
11. This is not a case of a person who only marginally fails to meet the policy requirements prescribed by the Instructions. He is neither an Australian permanent resident or able to meet the statutory residence requirement. Mr Youm has resided in Australia for a relatively short period and has a limited connection with the country. While it would appear that he has made a real attempt to play an active role in the Australian community I do not accept the contention that he has now been effectively "absorbed" into the Australian community.
12. In my view no cogent reasons been advanced which would warrant a departure from the policy enshrined in the Instructions that where a person is not a permanent resident and/or does not meet the statutory residency requirement, an application for citizenship can only be approved where the circumstances of the case are found to be exceptional.
13. It should be noted that my decision does not prevent Mr Youm reapplying for Australian citizenship or making future visa applications.

1. For these reasons I have decided to refuse Mr Youm's application for citizenship and affirm the decision under review.

I certify that the 20 preceding paragraphs are a true copy of the reasons for the decision herein of Ms AK Britton, Senior Member

Signed: ........[sgd]....................................................................

Solicitor for the Applicant: Mr C Levingston, Christopher Levingston & Associates

Solicitor for the Respondent: Mr A Orford, Clayton Utz