Choi and Minister for Immigration and Citizenship

[2011] AATA 96

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2011] AATA 96

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No 2010/1221

GENERAL ADMINISTRATIVE  DIVISION		)
Re		Jae Yun Choi

Applicant

And Minister for Immigration and Citizenship

Respondent

DECISION

Tribunal M D Allen, Senior Member

Date4 February 2011

PlaceSydney

Decision  For the reasons given orally at the conclusion of the hearing of this matter, the decision under review is AFFIRMED.

.................[sgd].......................

M D Allen, Senior Member

CATCHWORDS

CITIZENSHIP:  Application by a child over the age of 16 years and under the age of 18 years for grant of Australian citizenship refused.  Currently holds valid student visa.  Best interests of child considered.  No unusual circumstances or hardship.  Decision Affirmed.

LEGISLATION

Australian Citizenship Act 2007, section 21, 24

CASES

Re Pak v Department of Immigration and Citizenship [2010] AATA 157

Re Drake v Minister for Immigration and Ethnic Affairs No. 2 (1979) 2 ALD 634

Re Adams v Tax Agents Board 1 ALR 251

Kim v Minister for Immigration and Citizenship [2010] AATA 640

REASONS FOR DECISION

15 February 2011 M D Allen, Senior Member            

1. At the conclusion of the hearing of this matter the terms of the decision intended to be made and the reasons therefore were stated orally. After service upon the Applicant and the Respondent of a copy of the decision that was in fact made, the Respondent, pursuant to subsection 43(2A) of the Administrative Appeals Tribunal Act 1975 (“AAT Act”), requested that the Tribunal furnish to them a statement in writing of the reasons of the Tribunal for the decision.

2.      The oral reasons for the decision have been transcribed by Auscript, the Commonwealth Reporting Service.  Whereas those oral reasons may reflect the inelegance of an extempore decision, they are in fact the reason for the said decision.

3.      The said transcript is annexed hereunto and furnished to the Applicant and to the Respondent as it is the reason for the Tribunal’s decision.

I certify that these and the following paragraphs are a true copy of the reasons for the decision herein of Senior Member M D Allen.

Signed:         ................[sgd].................
  K. Lynch, Associate

Date of Hearing  4 February 2011
Date of Decision  4 February 2011
Date of Written Reasons  15 February 2011
Representative for the Applicant               Strathfield Immigration Services
Representative for the Respondent          Ms A Linacre, Clayton Utz

EXTRACT OF TRANSCRIPT OF PROCEEDINGS:

MR ALLEN:  By application made 26 March 2010, the Applicant seeks review of a decision by the respondent refusing to grant him Australian citizenship.  Section 21 of the Australian Citizenship Act 2007 (“the Act”) reads:

“(1)  A person may make an application to the Minister to become an Australian citizen.”

Subparagraph 5 then reads:

“A person is eligible to become an Australian citizen if the Minister is satisfied that the person is aged under 18 at the time when the person made the application.”

Whereas, section 24 of the Act states inter alia:

“(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).”

Accordingly, once the Minister, or this Tribunal on review, is satisfied that the Applicant is eligible under subsection (5) of section 21, because they are aged under 18 at the time their citizenship application is made, the discretion of subsection (2) of section 24 is enlivened. 

Although subsection (2) of section 24 of the Act does not state the factors that may be taken into account in the exercise of the discretion to approve or refuse to approve an application for citizenship, guidelines, namely the Australian Citizenship Instructions, have been published as a matter of government policy.

As pointed out by Buchanan J in Re Pak v Department of Immigration and Citizenship (2010) AATA 157 at paragraph 2, the published policy states guidelines to be employed in the case of persons who are eligible under subsection (5) of section 21 of the Act. It was accepted that I should follow the guidelines unless there was a good reason not to do so in Re Drake v Minister for Immigration and Ethnic Affairs No. 2 (1979) 2 ALD 634, per Brennan. I am aware of the lawfulness of the Australian Citizenship Instructions has been challenged. However, that is not a matter that is amenable to review by this Tribunal. See Brennan J, as he then was, sitting as president of this Tribunal in Re Adams v Tax Agents Board 1 ALR 251 at 253.

The Applicant was born on 28 January 1994 and thus, at the date of this hearing, is aged 17 years.  Therefore, the policy to be applied to him is that as set out in the Australian Citizenship Instructions where a person is aged 16 years and over and under the age of 18.  That policy reads inter alia:

“Applicants aged 16 years and over, and under the age of 18 would usually be granted under section 24 if they meet the following policy guidelines as a permanent resident.”

The Applicant is not a permanent resident, being in possession of a student visa granted on 19 March 2010.  The instructions go on to state, however:

“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.” 

The Applicant’s parents are not Australian citizens.  His mother is a Korean national, currently resident in Australia on what was referred to as a Guardian’s Visa.  The Applicant’s father is a South Korean national who resides and works in that country. 

Currently, the Applicant attends Newington College, and is studying for the International Baccalaureate.  He said he chose this course to maximise his chances of being admitted to the University of New South Wales to study medicine.  As part of his international Baccalaureate studies, he is studying both English and Italian. 

At the time the Applicant applied for the grant of citizenship, his brother was residing with the Applicant and his mother.  That brother, after commencing at the University of Sydney, is now at the University of Pennsylvania in the United States, studying economics.  The Applicant claims the Respondent should exercise his discretion in his favour, having regard to: 

(1) the best interests of the child;  and

(2) the presence of unusual circumstances. 

So far as the best interests of the child are concerned, I agree that they are best served by being part of a family group.  If, however, the Applicant were to return to South Korea, he would be accompanied by his mother, and they would then form a family unit with his father.

Much was made of apparent hardship to the Applicant, were he to return to South Korea.  I agree that he would have a period of adjustment, but note that each year during the school long vacation over December and January, he returns to his father in Korea.  Evidence was led of difficulties he would experience with the Korean language.  I consider these difficulties have been overstressed.  He speaks Korean to his father, whom he regularly contacts by telephone.  When holidaying in Korea, he speaks Korean.  Further, there has been no suggestion that should the Applicant gain a place at an Australian university, a continuation of his visa would be withheld.

If, after completion of his studies, and by that I mean either secondary or tertiary, the Applicant returns to South Korea and has to undergo military service, it is not, to my mind, unusual or imposes any special hardship upon him.  As to the Applicant’s future studies, attachment B to chapter 5 of the Australian Citizenship Instructions states:

“Australian citizenship is not a requirement to study in Australia.  Australian universities are permitted to admit students who are not Australian citizens.  Permanent visa holders are eligible for a Commonwealth supported place, previously known as HECS, or a domestic fee paying place.”

I do not regard the refusal of Australian citizenship to cause hardship to the Applicant on this basis alone. 

I find that the best interests of the child do not require that he be granted Australian citizenship.  As Deputy President Handley pointed out in Kim v Minister for Immigration and Citizenship [2010] AATA 640, quoting Buchanan J in Pak supra:

“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, on the person being granted citizenship.  Likewise, in Pak supra and Kim supra, it was stated that the fact 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, does not amount to either exceptional or very unusual circumstances.”

Similarly, the Australian Citizenship Instructions state that:

“Personal wants and aspirations generally do not constitute hardship.” 

That citizenship would relieve the Applicant’s family from paying school, and later university, fees is not a matter that should be held to constitute hardship.  The Applicant submitted that following changes to the points test for general skilled migration, the Applicant would be unlikely to fulfil the English requirement.  I do not accept this submission.  The Applicant is currently obtaining A level grades, whilst attempting both English and Italian, as part of his International Baccalaureate qualification at one of Sydney’s leading private schools.

To my mind, there is nothing unusual about the Applicant’s circumstances, nor is there anything in his circumstances that would render it unfair, unintentional or unjust to follow policy and refuse the grant of Australian citizenship at this time. 

The decision under review is therefore AFFIRMED. 

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