Budilay and Anor and Minister For Immigration and Citizenship
[2010] AATA 850
•2 November 2010
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2010] AATA 850
ADMINISTRATIVE APPEALS TRIBUNAL )
) No 2010/1690 and
GENERAL ADMINISTRATIVE DIVISION ) No 2010/1691 Re KENNETH BUDILAY Applicant
Re KELLEN BUDILAY
Applicant
And
MINISTER FOR IMMIGRATION AND CITIZENSHIP
Respondent
DECISION
Tribunal Ms N Isenberg, Senior Member Date2 November 2010
PlaceSydney
Decision The decisions under review are affirmed. ...................[sgd]...........................
Ms N Isenberg
Senior Member
CATCHWORDS Citizenship - Applicants aged under 16 years at time of application – whether citizenship should be conferred on the applicants despite applicants not holding permanent residency visas – policy considerations – whether circumstances unusual - significant hardship or disadvantage if applicants unable to complete education in Australia – decision affirmed.
Re Lee v Department of Immigration and Ethnic Affairs (1988) 10 AAR 270
SNMX v Minister for Immigration and Citizenship (2009) 110 ALD 645
Re Raisani and Aryantie and Minister for Immigration and Citizenship [2008] AATA 640
Choi v Minister for Immigration and Citizenship (2008) 104 ALD 117
Yun Seon Pak and Department of Immigration and Citizenship [2010] AATA 157
Yong Sul Kim and Minister for Immigration and Citizenship [2010] AATA 198
Yong Dae Kim and Minister for Immigration and Citizenship [2010] AATA 197
Minister for Aboriginal Affairs vPeko Wallsend Ltd (1986) 162 CLR 24
Zlatanovski v Minister for Immigration and Citizenship (2010) 114 ALD 452
Singh and Minister for Immigration and Citizenship [2010] AATA 643Australian Citizenship Act 2007 (Cth) ss 21(1) and (5) and 24(1), (1A) and (2)
Australian Citizenship Act 1948 (Cth) s 13(9)REASONS FOR DECISION
2 November 2010 Ms N Isenberg, Senior Member 1. At the outset the parties consented to these matters being heard together as they relate to brother and sister.
2. Kenneth and Kellen Budilay (the children) arrived in Australia with their mother, Ms Ratnawati Kurniawan (the mother) on a tourist visa on 29 August 1998 when they were three and one years old, respectively. They are Indonesian citizens. The mother made an application, albeit unsuccessful, for a protection visa so that they might stay in Australia. The mother sought review of that decision by the Refugee Review Tribunal but it was refused and she and the children were removed to Indonesia on 1 December 2001. On 14 January 2002 the children and their mother returned to Australia on another tourist visa using false names. The mother made a second application for a protection visa which was refused. On 19 December 2002 the Refugee Review Tribunal affirmed the decision of the delegate to refuse the mother's application for a protection visa. On 26 February 2009 the children applied for Australian citizenship by conferral but the applications were refused. Kenneth and Kellen have each applied to this Tribunal for review of the decision to refuse the application for citizenship.
3. The children and their parents have remained in Australia as holders of Bridging E visas. These visas, I am informed, permit the family to remain in Australia pending the outcome of these proceedings.
RELEVANT LEGISLATION AND POLICY
4. Section 21 of the Australian Citizenship Act 2007 (Cth) (the Act) relevantly provides:
21 Application and eligibility for citizenship
(1)A person may make an application to the Minister to become an Australian citizen.
...
Person aged under 18
(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.
5. Section 24 relevantly provides:
24 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.
(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)
6. Accordingly, once the Minister (or the Tribunal on review) is satisfied that an applicant is eligible under subsection 21(5) of the Act because they are aged under 18 at the time their citizenship application is made, the discretion at subsection 24(2) is enlivened.
7. The Minister’s exercise of the discretion in section 24 is guided by the Australian Citizenship Instructions (ACIs). The ACIs currently in place state that for applications received before 9 November 2009, the ACIs in effect immediately before 9 November 2009 are to be used. The ACIs in place immediately before 9 November 2009 relevantly stated:
Applicants under the age of 16
Children under the age of 16 applying individually in their own right would usually be approved under section 24 if they meet the following policy guidelines:
§hold a permanent visa … and
…
8. In this matter it was conceded that neither child meets the policy guidelines because neither has ever held a permanent visa.
9. Relevantly, the ACIs further state that:
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 interests of the child, to determine whether the application nevertheless warrants approval because of the unusual nature of those circumstances.
ISSUE
10. Do the circumstances of each child warrant the conferral of Australian citizenship? This involves consideration of:
(a)the full circumstances of the case;
(b)the best interests of the child; and
(c)whether the circumstances of the case are unusual.
KENNETH AND KELLEN’S CLAIMS
11. Kenneth and Kellen both provided statements dated 1 June 2010 and gave evidence.
12. Neither child recalled life in Indonesia, or expressed a familiarity with Indonesian culture, history or language.
13. Both children gave evidence that they speak English at home with their parents and with family friends. In her statement Kellen said that she could not verbally communicate with anyone in Indonesia. Kellen said she speaks English when on the telephone to her relatives in Indonesia, but is able to use occasional Indonesian words if necessary. Kenneth said he speaks to his Indonesian relatives in both English and Indonesian. Kellen said her parents only speak English at home, whereas Kenneth said they sometimes speak Indonesian to each other.
14. Both said they would be unable to continue their schooling and would have limited employment options if they returned to Indonesia. Both said they were good students; Kenneth would like to become a doctor and Kellen wishes to become a journalist. Kellen conceded in cross-examination that she had made no enquires about study in Indonesia or investigated Indonesian English-language newspapers. Similarly, Kenneth had made no enquiries about becoming a doctor in Indonesia.
15. Each said they did not want to leave the country because they have made many friends in Australia and have none in Indonesia. Kellen said that she had thought she was an Australian citizen, and it would not trouble either of them if they were to lose their Indonesian citizenship.
16. Both said their parents had put in place arrangements in the event they were granted Australian citizenship and the parents had to return to Indonesia. They would stay with a family friend – an ‘uncle’ - who is their father’s best friend. The uncle works as a handyman or cleaner. Kellen said the uncle’s family had recently moved to Wentworthville and she had not been to their new home. Previously, they had seen the family once a month. Kenneth, on the other hand, said that the uncle’s family moved to Wentworthville three years ago and the (children’s) whole family visits them once a week.
17. According to the children, the uncle – and his wife and two children – are Australian citizens and speak English to Kenneth and Kellen. Kenneth said that the uncle and the father had been boyhood friends, but nonetheless still spoke English to each other. He said the uncle spoke a different dialect to that which Kenneth had learnt from his parents and so he could not understand the uncle’s Indonesian.
SHOULD KENNETH AND KELLEN BE GRANTED CITIZENSHIP?
What are the full circumstances of the case?
Connection to Australia
18. The Tribunal has previously determined that, when considering an application under the predecessor provision (section 13(9) of the Australian Citizenship Act 1948 (Cth)), a decision maker may take into account whether an applicant has such a close connection with Australia as to warrant the grant of citizenship: Re Lee and Department of Immigration and Ethnic Affairs (l988) 10 AAR 270 (Lee) as per Gray J at 275. In this context, Gray J noted that:
…In considering that question, the Minister or his delegate may take into account quite properly questions such as whether the applicant has lived in Australia, and if so for what period or periods, and whether the applicant would suffer 'hardship or disadvantage if not granted citizenship..
There can be no sound objection to a policy requiring such matters to be taken into account....
19. The nature of an applicant’s connection to Australia was considered by the Tribunal in cases such as SNMX v Minister for Immigration and Citizenship (2009) 110 ALD 645 (SNMX), Re Raisani and Aryantie and Minister for Immigration and Citizenship [2008] AATA 640 (Raisani) and Choi v Minister for Immigration and Citizenship (2008) 104 ALD 117 (Choi) where the Tribunal exercised its discretion to approve the applicant becoming an Australian citizen.
20. In SNMX, the applicant was five years old, was born in Australia and had remained here since his birth. The Tribunal found at 672 that the applicant had a:
...realistic identification or connection with Australia...and his period of residence in Australia - now exceeding five years - is significant and a matter over which I would place considerable weight.
21. In Raisani and Choi the Tribunal found that the applicants had a close connection to Australia as they had resided here for extended periods, had strong connections to the Australian community and considered themselves to be Australian. In relation to their connection to Australia, the children in this matter also rely on long residence in Australia, connections to the Australian community and that they consider themselves to be Australian. However, the applicants in Raisani had relatives who were Australian citizens with whom they could live if necessary and were also of an age where they could live independently if necessary. Similarly in Choi the applicants were members of a close family network in Australia with a paternal aunt of Australian citizenship who was willing to take the applicants in and support them. In this matter there are no Australian relatives, only family friends, and the applicants are not of an age to live independently.
22. The Tribunal has, in recent cases, held that a lengthy residence in Australia is not, in itself, sufficient to demonstrate a connection to the Australian community so as to warrant departure from the policy. In Yun Seon Pak and Department of Immigration and Citizenship [2010] AATA 157 (Pak), Lee, Yong Sul Kim and Minister for Immigration and Citizenship [2010] AATA 198 (Sul Kim) and Yong Dae Kim and Minister for Immigration and Citizenship [2010] AATA 197 the applicants had resided in Australia for a significant period of their childhood, had completed large parts of their education in Australia and claimed they would suffer hardship and difficulties if they were to return to their country of origin.
23. In Pak, the Tribunal stated at 161 that:
The principal submission advanced on Ms Pak's behalf to the effect that her circumstances were exceptional, or very unusual, relied on the length of her virtually unbroken residence in Australia, the fact that she had completed all her schooling in this country and that she had formed close personal ties here… the matters to which reference has been made do not, in my view, amount to either exceptional circumstances or very unusual circumstances.
24. The applicant in Pak first arrived in Australia as a one year old child and, after numerous trips back to Korea, had returned to Australia at age six and lived continuously in Australia for the next 14 years. Notwithstanding the connections to the community and personal ties the applicant had developed and the years of schooling she had completed in Australia, these were insufficient to amount to unusual circumstances. In this matter Kenneth and Kellen’s length of residence is less than Ms Pak's residence was.
25. Kenneth and Kellen arrived in Australia in 1998 at the age of three and one respectively on the mother's tourist visa and remained in Australia for three years before returning to Indonesia on 1 December 2001 when they were six and four years of age respectively. They remained in Indonesia for one and a half months before returning to Australia on 14 January 2002 at ages six and four. They have remained in Australia since this time and have spent a total of 12 years residing in Australia. They attend school in Australia and have made friends from differing backgrounds. They are also said to be involved in the Hillsong Church group but provided no evidence of other significant connections to the Australian community.
26. I accept that, after 12 years in Australia, they have a reasonably close connection to Australia.
Significant hardship and disadvantage
27. The children claim that a refusal decision would cause them significant hardship, as it would have the consequence of interrupting their education and future employment prospects. They also claim that a refusal of citizenship would sever the close ties that they have with Australia.
28. In Raisani the applicants provided evidence of hardship and disadvantage in relation to educational opportunities in Indonesia and lack of Indonesian language skills. There the Tribunal found that both applicants would be unable to continue the educational paths they were on, which included tertiary education, which had already commenced, if they were required to return to Indonesia. Significantly, the applicants in that matter were 18 and 17 years old respectively and were about to begin tertiary education or employment.
29. The solicitor for the children submitted that Kenneth and Kellen came to Australia at their mother’s behest when they were infants. He suggested that they would experience significant hardship if forced to resume their studies in Indonesia. He said that they would face difficulties in achieving an appropriate standard in Indonesia, because of their use of English in recent years. The children claim that they have limited Indonesian language skills and will be denied educational opportunities if they are required to return to Indonesia. I did not find the children’s evidence as to their lack of Indonesian language skills persuasive, and there was no independent evidence as to their limitations.
30. There was also no evidence in this matter that the children will not be able to attend school in Indonesia or finish their education there. Even if they were required to repeat some schooling to attain their educational goals on return to Indonesia this does not, in my view, constitute significant hardship or disadvantage.
31. I accept that the children’s preference is to complete their education in Australia. While I also accept that it would be easier for Kenneth and Kellen to complete their education in Australia, I do not accept that a failure to be able to do so would cause significant hardship or disadvantage such as to warrant the exercise of the discretion.
Other Factors
32. The solicitor for the children also contended that in accordance with Minister for Aboriginal Affairs vPeko Wallsend Ltd (1986) 162 CLR 24, the Tribunal is required to have regard to "other factors" that may be relevant to the exercise of the discretion. It was unclear why this was a separate submission given that I am required to consider ‘the full circumstances of the case’ in accordance with subsection 21(5).
33. Nonetheless, I note that neither Applicant was concerned that they might lose their Indonesian citizenship. I accept that each considers Australia to be their home and they wish to make their lives here. There is no suggestion that they would be other than law-abiding. I also have referred to the evidence as to the extent to which the children have already become members of the Australian community. I observe that each has received the benefit of an Australian education, and note that one might consider that the Australian community may be deprived of the ‘return on investment’ (on that education) should Kenneth and Kellen not remain Australia. Similarly, albeit with considerable further educational investment, the Australian community may not receive the benefit of the fruits of their further study. That however, is somewhat speculative at this stage, given their relative youth.
what are the best interests of each of the children?
34. There is substantial overlap in considering the best interests of each child and considering if there would be likely significant hardship and disadvantage if the discretion were not exercised in their favour.
35. It was submitted on their behalf that their best interests would be served by the granting of Australian citizenship, because this would allow them to remain in Australia and further their studies without interruption and without the risk that they may not be given another visa to re-enter Australia should they be forced to leave. It was submitted that if they were not granted Australian citizenship, they would be obliged to return to Indonesia which would jeopardise their opportunity to undertake secondary and tertiary education in Australia and significantly undermine their prospects of obtaining good employment in the professions to which they aspire - being medicine and journalism respectively. These consequences, it was contended, flow from the children’s inability to read or write Indonesian language and their ability to speak and understand only limited conversational Indonesian language. It was submitted that these consequences would clearly not be in their best interests.
36. Granting Australian citizenship would also be in their best interest, it was submitted, because it would allow them to remain in the country with which they identify and to which they have extremely close ties. Both Kenneth and Kellen have spent the majority of their formative years in Australia and are, it was submitted, for all intents and purposes, already Australian. It was contended that it would clearly be in their best interest to allow them to remain in Australia and to formally recognise them as members of the Australian community.
37. Kenneth and Kellen were said to have an extensive network of friends and acquaintances who have known them for many years. None, however, were called to give evidence, nor were there statements from any other person. It was argued that these friends and acquaintances will suffer some degree of hardship and loss if Kenneth and Kellen were unable to remain in Australia. This assertion was not supported by any evidence.
38. I was referred to SNMX where it was held to be in the applicant's best interests to remain in Australia, notwithstanding that his parents would most probably have to return to Sri Lanka. However in that matter, members of the extended family of the applicant's father were Australian citizens residing in close proximity to the applicant; the applicant met these relatives on a weekly basis and the applicant spent a great deal of time with his grandmother who often acted as a primary caregiver to him. In the present matter there was no evidence of close relatives in Australia. Even if the ‘uncle’ and his family could be said to be ‘family’, the inconsistent description by the children of their association with that family did not persuade me that their level of contact was at all like that in SNMX. As such, their circumstances are distinguishable from those in SNMX.
39. The children’s circumstances are also distinguishable from the cases of Raisani, Choi and Zlatanovski v Minister for Immigration and Citizenship (2010) 114 ALD 452 (Zlatanovski) where those applicants were older and had relatives who were Australian citizens.
40. I was referred to Singh and Minister for Immigration and Citizenship [2010] AATA 643, where it was held that it was not in the applicant’s best interests to remain in Australia without his parents. However, in that matter the applicant was only four years old. In the present matter the children are adolescents and, while I agree with the general principle that it is in a child’s best interest to be with at least one of his or her parents, the force of that argument is somewhat diminished when considering an older child. I also observe that the parents, no doubt acutely aware of the tenuousness of their own visa status, were said to have put in place an arrangement for care of the children in their absence.
do the applications warrant approval because of the unusual nature of the circumstances?
41. In Raisani, Choi, SNMX and Zlatanovski the Tribunal found the circumstances of the applicants to be exceptional in nature. I observe that the relevant test in this matter does not require the circumstances to be ‘exceptional’, only ‘unusual’, but the cases are nonetheless instructive. The applicants in those cases had each resided in Australia for substantial periods, and were either at an age where they could live relatively independently and/or had members of their immediate family, who had acted as primary caregivers in Australia. In contrast, the children in this case are not of an age where they are capable of living independently, nor have they provided evidence to suggest that their circumstances are sufficiently unusual in nature.
42. The children have lived here for 12 years. They enjoy school and extra curricular activities and have friends in Australia, as is the normal experience of children. That their family has chosen to reside in a foreign country for a considerable length of time and not obtain permanent visas does not make their circumstances unusual.
43. That Kenneth and Kellen will have to return to and re-establish their lives in Indonesia is not an unusual circumstance. In Lee it was determined by the Tribunal that the applicant would face difficulties adjusting upon return to Korea, but that such adjustment was not unusual. Further, in Sul Kim at 206 the Tribunal stated:
... in my view such circumstances are not 'unusual' in the sense of the ordinary meaning of the word, something which is 'uncommon'. It would not be considered unusual for students who have spent some years studying in a country other than that of their citizenship, and who have become accultured into that community, to wish to remain there where to do so is perceived to be beneficial.
44. The children are of an age where they are likely to be able to adapt relatively easily, with the support of their parents and their family, to Indonesia. I do not accept their evidence that the Indonesian culture is completely unfamiliar to them, given their ongoing contact with their Indonesian relatives, and with friends in Australia of Indonesian background.
CONCLUSION
45. In conclusion, having regard to the full circumstances of each case, including the best interests of the children, I do not consider the applications for citizenship to nevertheless warrant approval because of the unusual nature of those circumstances.
DECISION
46. The decisions under review are affirmed.
I certify that the 47 preceding paragraphs are a true copy of the reasons for the decision herein of Ms N Isenberg, Senior Member.
Signed: ...............................[sgd]......................................................
AssociateDate/s of Hearing 19 October 2010
Date of Decision 2 November 2010
Solicitor for the Applicants David Gu, Christopher Levingston & Assoc
Solicitor for the Respondent Ms A Linacre, Clayton Utz
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