Aileen Teng and Minister for Immigration and Citizenship
[2012] AATA 388
•27 June 2012
[2012] AATA 388
Division GENERAL ADMINISTRATIVE DIVISION File Number(s)
2011/0517
Re
Aileen Teng
APPLICANT
And
Minister for Immigration and Citizenship
RESPONDENT
DECISION
Tribunal Senior Member J F Toohey
Date 27 June 2012 Place Sydney The decision under review is set aside and the matter remitted for reconsideration in accordance with the direction that the applicant’s application be assessed according to the policy in the Australian Citizenship Instructions relevant to an applicant aged 16 and over and under 18.
........[sgd]................................................................
Senior Member J F Toohey
CATCHWORDS
CITIZENSHIP – applicant aged 14 at time of application – aged 16 at time of decision – applicant eligible for citizenship – Australian Citizenship Instructions – whether relevant policy guideline is according to age at time of application or at time of decision – matter had been determined applying policy relevant to age at time of application – Tribunal determination that policy relevant to age at time of decision should be applied – that policy required applicant be given opportunity to attend interview to determine if applicant meets relevant policy guidelines – matter remitted for reconsideration according to policy relevant to applicants aged 16 and over
LEGISLATION
Australian Citizenship Act 2007 ss 21(5) and 24(2)
CASES
Berenguel v Minister for Immigration and Citizenship [2010] HCA 8
Hong and Minister for Immigration and Citizenship [2010] AATA 100
Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634
SECONDARY MATERIALS
Department of Immigration and Citizenship, Australian Citizenship Instructions, 2012
REASONS FOR DECISION
Senior Member J F Toohey
27 June 2012
BACKGROUND
Aileen Teng was born in Indonesia and came to Australia with her family in 2002 when she was five years old. Her mother died a short time later and she was brought up in Australia by her sister. At some point, their father returned to Indonesia where he manages the family business.
In September 2010, Ms Teng applied for Australian citizenship. She was 14 at the time. She did not provide supporting information in the time required by the Department of Immigration and Citizenship and her application was refused.
Ms Teng lodged a further application for citizenship on 16 December 2010. At the time, she held a five year resident return (permanent) visa which expires on 12 December 2015. On 18 January 2010, her application was refused. She seeks review of that decision.
In early 2011, Ms Teng’s sister returned to Indonesia with her husband to live. Ms Teng did not want to leave Australia but her sister said she was too young to stay on her own and insisted she return with them. Ms Teng is now completing her secondary schooling in Indonesia. Her sister has apparently returned to Australia with her husband and they now live here. Ms Teng has another sister in Australia and a brother who lives in Indonesia.
THE LEGISLATION
The Australian Citizenship Act 2007 (the Act) provides that citizenship may be conferred upon an eligible person. A person is eligible if the Minister for Immigration and Citizenship (the Minister) is satisfied that she or he is under 18 at the time of making the application, and is a permanent resident at the time of making the application and at the time of the Minister’s decision: s 21(5). There is no dispute that, by virtue of her age and permanent resident status, Ms Teng is an eligible person.
The Minister may refuse to approve an application for citizenship despite a person being eligible in accordance with the Act: s 24(2)
THE AUSTRALIAN CITIZENSHIP INSTRUCTIONS
The Act gives no guidance as to how the discretion to approve or refuse an application for citizenship should be exercised. However, guidance is found in the form of published policy in the Australian Citizenship Instructions (the Instructions). The Tribunal should apply the Instructions unless there are cogent reasons not to do so: Re Drake and Minister for Immigration and Ethnic Affairs(No 2) (1979) 2 ALD 634.
In relation to persons aged under 18 generally, the Instructions state (at 34):
The discretion in section 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 guidelines. 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.
As they apply to persons under 18, the policy guidelines vary according to whether an applicant is under 16, or is 16 years or over and under 18.
Ms Teng was aged 14 at the time of her application. She has recently turned 16. She contends that the relevant policy is that applicable to persons aged 16 years or over and under 18. The Minister disagrees and contends that the relevant policy is that applicable at the time of her application when she was under 16 years of age.
Applicants under the age of 16
In relation to applicants under the age of 16, the relevant parts of the policy state, in summary:
·A child aged less than 16 years can make an application in his or her own right, in which case a responsible parent must sign the application form.
·The child would usually be approved under s 24 if she or he is a permanent resident at the time of the application and decision, and she or he:
ois under 16 when applying, and living with a responsible parent who is an Australian citizen and consents to the application; or
ois under 16 when applying, and living with a responsible parent who is not an Australian citizen and consents to the application, and the child would otherwise suffer significant hardship or disadvantage.
Applicants aged 16 or over and under 18
In relation to applicants 16 years or over and under 18, the relevant parts of the policy state, in summary:
·The application must be on a form that contains no other application; a parent’s consent is not necessary.
·An applicant would usually be approved under s 24 if she or he is a permanent resident at the time of the application and decision, and she or he:
osatisfies the residence requirement but need not do so if this would cause significant hardship or disadvantage; and
ounderstands the nature of the application; possesses a basic knowledge of English language; has an adequate knowledge of the responsibilities and privileges of Australian citizenship at the time of decision; and is likely to reside or continue to reside in, or maintain a close and continuing association with Australia.
·Applicants should be given the opportunity at interview to demonstrate that they understand the nature of their application, have an adequate knowledge of the responsibilities and privileges of Australian citizenship, and have a basic knowledge of English.
In either case, if an applicant does not meet the relevant policy guidelines, decision-makers must consider the full circumstances of the case, including the best interests of the child, to determine whether the application nevertheless warrants approval because of the unusual nature of those circumstances.
WHICH ARE THE RELEVANT POLICY GUIDELINES
Ms Teng relies on the decision of the High Court in Berenguel v Minister for Immigration and Citizenship [2010] HCA 8 as authority for the proposition that the relevant policy is that applying at the time of the Tribunal’s decision.
I do not think that Berenguel assists in the way contended for. In that case, the question was whether the test score demonstrating the necessary proficiency in English had to have been achieved at the time of application for permanent residency, or whether regard could be had to a score achieved after that time. The Court’s decision that regard could be had to a later score turned on the statutory provision in question as well as the “plain unfairness and absurdity” that would result from the alternative construction.
The Minister refers to the decision of the Tribunal in Hong and Minister for Immigration and Citizenship [2010] AATA 100. In that case, an application for citizenship came back to the Tribunal on a remittal from the Federal Court by which time the applicant was aged 19. Deputy President Handley applied the policy as at the time of her application, when she was 17. However, I do not think the decision assists the Minister in this case.
It was not in dispute in Hong that the applicant was eligible for citizenship under s 21(5) because she was 17 at the time of her application. Section 21(5) requires an applicant to be under 18 at the time of the application, but a permanent resident at the time of application and decision. In effect, a person does not lose eligibility under s 21(5) merely by turning 18 before the decision is made.
More importantly, the Tribunal in Hong did not consider the question that arises in the present case, being which policy should apply where an applicant was under 16 at the time of the application but 16 or over at the time of the decision.
In both cases, the policy guidelines reflect the language of s 21(5) in stating that an applicant “would usually be approved … if a permanent resident at the time of application and decision …” (emphasis added). The Minister points out, correctly, that the policy refers to a child who is “under the age of 16 when applying” (emphasis added) but nothing in the legislation or the policy refers to an applicant’s age at the time of decision.
In my view, the guidelines relevant to a person aged 16 and over should apply. The guidelines relevant to a person under 16 are more protective of the applicant. A child aged 16 and over is not required to be living with a responsible parent, does not require the consent of a responsible parent and significant hardship or disadvantage need only be shown where an applicant does not satisfy the residence requirement (in s 22).
In my view, a child’s best interests are best assessed at the time of the decision. It makes little sense to apply the more protective guidelines to a child who is now of an age such that, by implication, the guidelines recognise they are in less need of protection. It follows that Ms Teng’s application should now be assessed according to the policy relevant to applicants between the ages of 16 and 18.
As noted in paragraph [8] above, in relation to applicants under 18 generally, the Instructions state:
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.
As I read it, this paragraph indicates only that best interests are no longer a consideration if a child has turned 18 by the time of the decision. However, the reference to the child “living in Australia” is not clear to me. It is not a legislative requirement that a child be in Australia at the time of the decision and nor does it appear to be a policy requirement. By s 24(5), the Minister must not approve certain applicants if they are not present in Australia at the time of the decision but a person eligible under s 21(5) is not such an applicant.
In relation to an applicant between the ages of 16 and 18, the Instructions state (at 35.1):
Applicants … should be given the opportunity at interview to demonstrate that they understand the nature of their application, have an adequate knowledge of the responsibilities and privileges of citizenship; and that they possess a basic knowledge of the English language.
The Minister submits that, if the Tribunal decides that the policy applying to applicants aged 16 and over should apply, then the matter should be remitted for reconsideration so as to give Ms Teng the opportunity to demonstrate these matters at interview. I agree. For completeness, Ms Teng’s claims are set out below.
Ms Teng’s claims
In a written submission, Ms Teng stated her reasons for seeking citizenship as follows:
Firstly, I had been living in Australia since I was six years old [this appears to be incorrect: according to her date of birth she was five when she arrived] and I have basically adopted the Australian way of life and cultural norms and I have always called Australia my home and my future and I cannot see myself living elsewhere. Secondly, I felt trapped by my current circumstances where I am forced to live in Indonesia. I totally loathe going to school here and I hate the weather, the mosquitoes and for that matter this whole country (Indonesia). Finally, I fear that unless they get an Australian Citizenship, I will lose my permanent residency status and will lose all hope of eventually coming back to live in Australia.
Ms Teng wrote that, before she died, her mother “gave a mandate” to her sister to take care of her. She has three siblings: the sister who raised her; another sister in Australia with whom she could not live because they always have arguments; and a brother who lives in Indonesia. She said she is an independent person, she went everywhere by herself in Australia and she feels trapped in Indonesia.
Ms Teng stated she loathes being in Indonesia because she is forced to go to an Indonesian school where instruction is in Bahasa; she no longer speaks the language well and has difficulty coping with the school work and maintaining good relations with her friends and teachers. She considers herself to be “an Aussie” and finds it difficult to accept the cultural norms in Indonesia. She does not like the traffic jams, the litter, that people do not understand they need to queue, that there are crimes, and she cannot go everywhere by herself. She does not like the humid, hot weather. She wants to become an interior designer and build a career in Australia. She intends moving back to Australia at the end of this year to complete her secondary education. She knows what is best for her and that is being an Australian citizen.
In evidence given by telephone from Indonesia, Ms Teng essentially restated her claims but said she is currently in Year 9 at school where she is being taught in English, and both of her sisters are now living permanently in Australia.
Ms Teng’s application was accompanied by a Statutory Declaration made on 10 December 2010 by her father in which he stated that she was living at “the family home” in Sydney, and he consented to, and approved of, his daughter being conferred Australian citizenship. He gave his address as the family home in Sydney but the Statutory Declaration was made in Jakarta, and it is not clear whether Ms Teng was living with him at the time.
Ms Teng has also submitted a report of an examination conducted in November 2011 by a psychologist in Jakarta. According to the English translation, Ms Teng is a person with good intellectual ability, well-developed personality, very mature for her age and responsible for herself, and very independent.
CONCLUSION
A number of matters may need to be dealt with on reconsideration. Ms Teng’s best interests will still be a primary consideration. It is notable that the sister with whom she apparently intends living in Australia has not provided anything in support of her application and there is no evidence that she would play a supervisory or supportive role. Ms Teng’s only other family in Australia is the sister with whom she says she cannot live. The fact that her father consents to her application does not make it in her best interests and nor does the fact that she considers herself to be independent.
To the extent that Ms Teng seeks to rely on significant hardship or disadvantage, I am not persuaded that any of the matters to which she refers meets that description as set out in the Instructions.
Ms Teng’s visa entitles her to return and live in Australia until it expires on 12 December 2015if she wishes. Nothing about a decision to refuse her application would change her immigration status or preclude her from applying for citizenship again in the future.
The decision under review is set aside and the matter is remitted for reconsideration in accordance with the direction that Ms Teng’s application be assessed according to the policy in the Australian Citizenship Instructions relevant to an applicant aged 16 and over and under 18.
I certify that the preceding 35 (thirty -five) paragraphs are a true copy of the reasons for the decision herein of Senior Member J F Toohey.
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Associate
Dated 27 June 2012
Date(s) of hearing 1 June 2012 Date final submissions received 15 June 2012 Advocate for the Applicant Mr A Lim, Alim Lim & Partners Solicitors for the Respondent Ms A Linacre, Clayton Utz
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