CHAPTER 3
ISSUES
3.1
The Bill attracted general support from most submitters, primarily
through its recognition of at least some of the difficulties faced by
applicants for citizenship who have suffered hardship before their arrival in
Australia.[1]
3.2
The main issues that arose during the inquiry went to:
-
the scope of the exception to the requirement to take the
Citizenship Test (the test) as proposed in the Bill; and
-
the impact of the proposed amendments for citizenship
applications by minors. This chapter addresses each issue in turn.
Exception for physical or mental incapacity resulting from torture or
trauma outside Australia
3.3
Proposed subsections 21(3A) and (3B) would amend existing arrangements
which permit a person with permanent physical or mental incapacity resulting in
the person's inability to understand the nature of their application to become
an Australian citizen without sitting the test. The new provisions would,
subject to other conditions, bring those suffering from physical or mental
incapacity as a result of having experienced torture or trauma outside
Australia within the scope of the exception to the requirement for the test.
The incapacity need not be permanent, and need only impair the applicant's
understanding of the nature of their application, basic knowledge of English,
of their knowledge of the responsibilities and privileges of Australian
citizenship in order to qualify under the exception.
3.4
The committee was told by Professor Kim Rubenstein, who sat on the Citizenship
Test Review Committee (CTRC) referred to in earlier chapters, and the
recommendations of which underpinned the proposed exception, that the content
of proposed subsection 21(3B) was different from that recommended by the review
committee. The most notable effect of the wording recommended by the review
committee would have been to broaden the class of persons who could be excused
from sitting the citizenship test beyond those who had suffered torture or
trauma to those who were unable to understand the nature of their application,
the right and responsibilities of citizenship, or to basically grasp English,
because of a mental or physical problem.[2]
In support of her position, Professor Rubenstein argued that:
Mental health is the condition, as opposed to how the mental
health condition was caused, and mental health problems are experienced by
people other than trauma and torture victims. My submission to this committee
would be that that, as a matter of principle, people who reside permanently in
Australia, who are connected to Australia sufficiently and who in every other
respect satisfy citizenship requirements but by virtue of their mental health
are unable to take the test should not be precluded from becoming Australian
citizens.[3]
3.5
The desire to broaden the exception was a common one. While most
submitters who addressed this issue praised the introduction of the exception,
its scope was criticised as being too narrow. The Refugee and Immigration Legal
Centre called for the complete exemption of refugees and humanitarian entrants
from the requirement to sit the test.[4]
The Immigration Advice and Resource Centre (IARC), which submitted jointly with
the Refugee Advice and Casework Service (RACS) summarised the view of a number
of submitters when it argued that:
There are especially vulnerable and disadvantaged sub groups
within the broader migrant community in Australia – including in particular
refugees and humanitarian entrants – who will not always fall [within] the
narrow exception provided for...[M]any refugees and humanitarian entrants, for
example, may have suffered persecution in their countries of origin, which
falls short of the legal definition of torture. Similarly many may suffer from
psychological injuries resulting from past experiences, which fall short of
trauma in the clinical sense. Yet such past experiences and the continuing
psychological after-effects may well impact on the relevant individual's
ability to learn and process new material – such as a new language and concepts
associated with the rights and obligations of citizenship – and successfully
complete an exam in a formal and potentially stressful environment.[5]
3.6
IARC and RACS also listed some of the specific experiences and
circumstances that could impinge on a person's ability to perform in an
examination. These included:
-
Experiences of discrimination and abuse and the related
after-effects;
-
Experiences of prolonged separation from families;
-
Long periods of uncertainty while awaiting resolution of
immigration status;
-
Physical or mental disabilities;[6]
-
Limited education and/or illiteracy in the native language; and
-
Socio-economic and/or cultural factors impacting on a person's
ability to attend English and citizenship education sessions.[7]
3.7
The Castan Centre for Human Rights Law had similar concerns about the
breadth of the exception, and noted that:
It is well recognized that individuals respond to trauma in
very personal ways. It is misleading to associate refugees with trauma or
traumatic responses as many refugees are very resilient people who cannot be characterized
in that way. We are concerned at the inappropriate association of refugees with
‘torture or trauma’ through this proposal and at its potential to exclude
refugees who do not exhibit symptoms of trauma. This is contrary to the
Australian government’s international obligations to facilitate the
assimilation and naturalisation of all refugees as explained above, and
potentially discriminates between refugees according to their individual
vulnerability.[8]
3.8
The fact that the exception would apply only to torture or trauma
experienced offshore was a matter of concern for a number of witnesses. Dr
Susan Kneebone argued that in many cases trauma will largely take place in
Australia, and provided the compelling example of trafficked people, for whom
the majority of their abuse will take place at the hands of their traffickers,
once they reach Australia.[9]
3.9
On a similar note, Ms Zoe Anderson, appearing for the Refugee Advice and
casework Service (RACS) said at the hearing that:
There are also many other factors beyond experiences of the
past persecution in the country of origin which may cause psychological
injuries adversely affecting the ability of refugees and humanitarian entrants
to learn new material and pass an exam. These include, for example, experiences
of prolonged separation from close family members and experiences of long
periods of uncertainty about their ultimate fate while awaiting resolution of
status and/or visa grants, in some cases in detention. These are experiences
which will often have occurred in Australia rather than outside. The exemption
in its current form therefore does not adequately address the special needs of
individuals in such circumstances.[10]
3.10
Upon examination of the Government's response to the CTRC's report, the
committee notes the government's recognition that:
The Government agrees that there is a small group of
individuals who suffer from psychological disorders as a direct result of
having experienced torture and trauma. To assist these most vulnerable clients
- many of whom need citizenship the most - the Government will amend Section
21(3)(d) of the Australian Citizenship Act 2007 as recommended by the
Review Committee.[11]
3.11
The policy document would impose no condition on where torture and
trauma is required to have occurred to be applicable, which is at variance with
the position taken in the Bill.
3.12
The committee is convinced by the arguments in favour of removing the proposed
requirement that torture or trauma occur offshore before it can fall under
proposed subsection 21(3B), and strongly urges the Government to reconsider whether
the requirement should remain in the Bill.
Other issues regarding the exception
to the citizenship test
3.13
The Castan Centre, and others, expressed disquiet about the terminology
used in the Bill:
‘Trauma’ (which may mean simply ‘injury’) is...undefined but in
this context appears to refer to the psychological effect of traumatizing
incidents. It is submitted that ‘trauma’ in this proposal does not have an
independent meaning, legal or otherwise, except as an assessment of the effect
of events upon an individual.
...
In our view, the effect of this amendment will be to
introduce new criteria which are themselves unclear and open to interpretation/challenge.[12]
3.14
The Department responded that the terminology reflected the feedback
that had been received by the Citizenship Test Review Committee, which stated
in its report that:
The Committee considers the current exemption criteria do not
take into consideration the effect of severe and chronic symptoms resulting
from the experience of torture and trauma. These may include strong anxiety
associated with learning difficulties, and while some symptoms are permanent,
others, though severe, are not necessarily permanent.[13]
3.15
Concerns were also expressed about possible inconsistency between the
Bill and the Explanatory Memorandum. In particular, the Castan Centre noted
that the Bill referred to the effect of ‘torture or trauma’, whereas the
Explanatory Memorandum refers to the combined effects of ‘torture and
trauma’.[14]
3.16
However, the committee notes that the EM, when referring to those
suffering from 'torture and trauma', is referring to the collective group of
persons for whom exemption from the citizenship is suggested by the CTRC, and
that the subsequent use of the term 'torture or trauma' in the Bill is not
inherently contradictory, as the Bill intends to pick up those who have
suffered either torture or trauma.
3.17
In its supplementary submission, the Department provided further
information on the number of applicants with permanent incapacity, and
addressed concerns relating to the method of assessment of claims of incapacity[15]
in the following way:
During [the period 1 October 2007 and 30 June 2009] 366
people applied for citizenship under the permanent physical or mental
incapacity provisions provided in subsection 21(3) of the Australian
Citizenship Act 2007. Of these, 189 people who applied under the permanent
incapacity provision acquired citizenship when they were found to have a
permanent incapacity which meant they were not capable of understanding the
nature of the application. This number represents 0.1% of the total number of
people who acquired citizenship by conferral during this period. In each case
clients were required to provide evidence of their incapacity in the form of a
letter from a specialist in the field related to their incapacity. Each
assessment is made on the basis of the information provided by the specialist.
Citizenship officers do not make assessments of a person’s incapacity. It is
anticipated that the number of people who will be able to acquire citizenship
under the proposed s21(3)(d) will remain a very small percentage of the overall
caseload.[16]
3.18
The committee notes disagreement from a number of submitters with the
scope of the exemption to take the test. However, members note that most
dissenters would prefer to see the removal of the citizenship test altogether,
a factor which must inform their position on the exemption contained in the
Bill. The committee is also mindful of the fact that the citizenship test
enjoys bipartisan support, and that the test brings with it some notable
benefits. For example, the committee was reminded of the role of the test in
empowering some permanent visa holders who, but for the need to pass the test,
might be precluded from taking classes in English. As Dr Susan Kneebone said at
the committee's hearing:
I absolutely agree with you on that point. The citizenship
test can be used in a way which is inclusive and does incorporate, as you say, particularly
women who may not have a lot of contact outside their family circle or outside
their home. It is well known that migrant women are often the ones left out of
the reckoning and this is a way of including them. I think we are in agreement
on that.[17]
3.19
While the committee can see arguments in favour of broadening the
proposed exemption, it is mindful of the desirability of requiring the test be
successfully completed in as many cases as is fair and possible. The proposed
exemption will cater to those for whom sitting and passing the test would be an
unfair and unreasonable requirement. The Department has arrangements in place
to assist those in less extreme situations who are having difficulty preparing
for the examination, and taken together with the proposed exemption, the
committee takes the view that an appropriate balance has been struck.
Citizenship applications from minors: subsection 21(5) amendments
3.20
The Bill would also amend arrangements for applicants for citizenship by
conferral who are under the age of 18. Currently subsection 21(5) of the Act
provides that 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.
3.21
Subsection 24(2) confers a discretion to the Minister to refuse to
approve a 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) of the Act, and policy instructions from the Minister in relation to
this provision require that most people under the age of 18 be a
permanent resident at time of application.[18]
While the Act does not specify any criteria for the exercise of this
discretion, the discretion is limited to the subject matter, scope and purpose
of the statute.[19]
The Bill aims to implement government policy that, in general, people must be
residents before they can become citizens.
3.22
The Department explained the practical operation of the existing provisions
as follows:
The policy instructions provide an aid to decision-makers
exercising the discretion under subsection 24(2) and a decision-maker must
consider the circumstances of a particular case in deciding whether it is
appropriate to apply the policy in exercising the discretion.
...
In the case of an applicant who does not meet the policy
requirements, the full circumstances of the case, including the best interests
of the child, are taken into consideration to determine whether the application
nevertheless warrants approval outside of policy because of the exceptional
nature of those circumstances. The legislation in the past had been left
deliberately broad in order to accommodate very exceptional cases that came to
the attention of the department.[20]
3.23
The Department explained the rationale behind the proposed amendments
this way:
In recent years the provision to confer citizenship on
children under the age of 18 has been increasingly utilised by clients and
their agents in an attempt to circumvent migration requirements or as a last
resort when all migration options have been exhausted, including requests for
ministerial intervention, and removal from Australia is imminent. This can
result in children being conferred citizenship but there being no or little
prospect of their family remaining lawfully in Australia or returning to
Australia in the foreseeable future because there is no migration option
available to those family members...Subsection 21(5), and a similar provision in
the Australian Citizenship Act 1948, were not intended to be used in
this way. It was not the intention, for example, that an unauthorised arrival
in Australia who was under 18 years of age at time of their arrival would have the
right to Australian citizenship on their arrival.[21]
3.24
In its supplementary submission to the committee, the Department
reported that 415 children applied in their own right for citizenship between 1
October 2007 and 30 June 2009. Of these 14 were not permanent residents at the
time of the application. This is the cohort that would be impacted by the
proposed amendment. Of this cohort, 4 had their citizenship conferred following
a favourable decision of the AAT.[22]
3.25
Much of the criticism levelled at the proposed amendments went to this
point: that the current legislation allows for exceptional cases, but that the
proposed amendments would remove the discretion to confer citizenship when
circumstances warranted it. Professor Kim Rubenstein recommended the retention
of the broad discretion, through the scrapping of the proposed amendment to
subsection 21(5):
My recommendation is to not include the amendment, to leave
section 21(5) exactly as it is and to review policy, which I think is possible
in a way that would maintain a lawful decision-making process under the section
as it currently stands but also deal with the issues that the minister is
concerned about in terms of the links between the migration program and the citizenship
program.[23]
3.26
Victoria Legal Aid summarised the view of many submitters in its
submission:
This broad discretion...recognises that children are a
particularly vulnerable group. There can be extraordinary and compelling
reasons for the grant of citizenship to children. The presence of this
discretion in Australian citizenship law recognises that the unique
vulnerabilities of children sometimes raise unusual circumstances, where a
grant of citizenship is warranted. The Minister should have the power to deal
with those unusual and compelling circumstances appropriately.
...
There is, as far as VLA is aware, no evidence that there has
been a large increase in the number of applications for the grant of
citizenship [under 21(5)]. VLA does not accept that the continues presence of a
broad discretion in s21(5) will adversely impact on Australia's capacity to
control migration, or citizenship. As demonstrated in the case of SMNX v
Minister for Immigration and Citizenship [2009] AATA 539 discretion in
s21(5) will be exercised only in the exceptional case. The exercise of the
discretion, further, can be guided by appropriately drafted policy.[24]
3.27
Submitters such as Ms Rowena Irish, representing IARC, were not convinced
of the wisdom of relying on ministerial intervention powers to adequately deal
with the interests of a minor. They submitted that the process was 'lengthy,
uncertain, non-compellable and not subject to review'.[25]
3.28
Professor Kim Rubenstein argued in her supplementary submission that the
applicant in the SNMX case would not succeed if subsection 21(5) were
repealed, because the factors underpinning the Administrative Appeals
Tribunal's decision in that case would not have been considered under the
Migration Act framework.[26]
It was on that basis that Professor Rubenstein argued that an applicant under
subsection 21(5) in similar circumstances to those of SNMX, would have
no path to citizenship.[27]
3.29
The Department concluded that a 'very small group' of people under the
age of 18 would no longer have direct access to Australian citizenship should
the amendment proceed, but anticipated
...that any such people with exceptional circumstances would
appropriately be accommodated under the Migration Act 1958 (the Migration Act),
if necessary, by way of Ministerial Intervention powers available under the
Migration Act. Once granted a permanent resident visa under the Migration Act
they would have a pathway to citizenship.[28]
3.30
In its supplementary submission to the committee, the Department
maintained its position, notwithstanding the claims of Professor Rubenstein
To say that ‘(c)hildren are largely dependent upon the
parent’s claim under the Migration Act’ is true if the child is applying for a
visa as a secondary applicant, i.e. as a member of their parent's family unit,
the parent being the primary applicant. However, that does not mean that a
child cannot apply for a visa other than as a member of their parent's family
unit.
...
... [T]here is nothing to prevent a child making an application
relying on their own claims to being a person to whom Australia has protection
obligations (paragraph 36(2)(a)), subject only to the issue of the child’s
capacity to understand the nature of the application. If the child is too young
to understand the nature of the application, then he or she could only make a
valid application through a parent or legal guardian, albeit that the
application (and the claims made in it) would be the child's own application.[29]
3.31
The Department also pointed out that, had SNMX not been granted
citizenship through their application under subsection 21(5), an application
for a Protection visa would have been open to them, and that:
It is a matter for his legal advisers as to why such an
application was never made by SNMX in circumstances where he was not
subject to a statutory bar. Given that he was eligible to apply for Australian
citizenship, there may have been no need to do so, however he was not subject
to a statutory bar which prevented him from making an application for a
protection visa which would have provided a pathway through to holding a
permanent visa to be eligible for Australian citizenship.[30]
3.32
The committee is mindful of the need to ensure that avenues exist to
ensure the fair treatment of all claimants to Australian citizenship, diverse
though they may be. It has examined carefully the arguments in relation to the
proposed amendment to subsection 21(5), and the concern raised that in closing
off what the government considers a 'loophole', more legitimate and compelling
claims might be denied recourse. As the foregoing discussion discloses,
stakeholders' views diverge significantly.
3.33
Nonetheless, the committee must give strong weight to the considered and
repeated advice from the Department that other avenues to citizenship do exist
for those for whom existing subsection 21(5) might otherwise have been an
option.
3.34
The committee is not persuaded to recommend any amendment to the Bill in
this regard.
Recommendation 1
3.35
The committee recommends that the Bill be passed.
Senator Trish Crossin
Chair
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