DA SILVA And MINISTER FOR IMMIGRATION AND CITIZENSHIP
[2011] AATA 494
•15 July 2011
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2011] AATA 494
ADMINISTRATIVE APPEALS TRIBUNAL )
) No 2009/1405
GENERAL ADMINISTRATIVE DIVISION ) Re GABRIELLE TOMAZ DA SILVA Applicant
And
MINISTER FOR IMMIGRATION AND CITIZENSHIP
Respondent
DECISION
Tribunal Mr John Handley, Senior Member Date15 July 2011
PlaceMelbourne
Decision The Tribunal affirms the reviewable decision dated 20 January 2009. John Handley
Senior Member
CITIZENSHIP – by conferral – applicant under the age of 18 – applicant eligible to apply – discretion to refuse application – Australian Citizenship Instructions ‑ application of policy – best interests of the child – applicant and parents not permanent residents – significant hardship and disadvantage – full circumstances of the case – whether circumstances are unusual.
Australian Citizenship Act 2007 ss 21(5) and 24(2)
Re SNMX and Minister for Immigration and Citizenship (2009) 110 ALD 645
Re Zlatanovski and Minister for Immigration and Citizenship (2010) 114 ALD 452
Singh v Minister for Immigration and Citizenship [2011] FCA 685
K v Cullen and Others (1994) 126 ALR 38
Collector of Customs v Agfa-Gevaert Ltd (1996) 186 CLR 389
An v Minister for Immigration and Citizenship [2007] FCAFC 97
REASONS FOR DECISION
15 July 2011 Mr John Handley, Senior Member 1. Gabrielle (Gaby) is 11 years of age having been born in Brazil on 30 October 1999. She applied for Australian citizenship by conferral. On 20 January 2009, her application was refused by a delegate of the Minister for Immigration and Citizenship (the Minister).
2. Gaby arrived in Australia with her parents on 29 November 2002 at the age of three. Her parents arrived as the holders of a Subclass 676 (Tourist) visas which were valid for three months. Each parent applied for a protection visa two months later. Those applications were refused and the decisions affirmed by the Refugee Review Tribunal in December 2003. Applications later made to the Minister pursuant to the Migration Act 1958 were declined and appeals lodged with the Federal Magistrates Court with respect to the refusal to grant protection visas were unsuccessful. The parents remained in Australia until 21 November 2008 when they were granted Bridging E visas which permitted them to remain lawfully until 5 December 2008. Gaby applied for conferral of citizenship on 26 November 2008 with the consent of her father Gelson Tomaz Da Silva.
3. Another child of the parents, Isabelle, was born in Australia in October 2007. Isabelle is not an Australian citizen because of the status of her parents and the operation of s 12(1) of the Australian Citizenship Act 2007 (the Act). Gaby and her family remain in Australia lawfully as the holders of a Bridging E visa, pending the determination of this application.
LEGISLATION
4. Section 21(5) of the Act which was in force prior to 9 November 2009 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. However, s 24(2) allows the Minister to refuse to approve an application for citizenship, despite eligibility.
5. The Australian Citizenship Instructions (ACIs) have been approved by the Minister and set out the guidelines that must be considered by decision-makers when exercising the discretion in s 24(2) of the Act. Prior to the hearing of this review, the solicitor for the Minister acknowledged that the relevant parts of the ACIs found within the T‑documents (at T2, p 26 ‑55) did not apply at the date that Gaby made her application. On 9 November 2010, the Minister’s solicitor provided the relevant parts of the ACIs and counsel for both parties agreed that those extracts were applicable in this proceeding.
ACIs
6.The relevant parts of the ACIs provide as follows:
·In the case of applicants under the age of 18 years:
…
The discretion in section 24(2) to refuse to approve an applicant becoming an Australian citizen despite being eligible under section 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 …
…
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.
·In the case of applicants under the age of 16:
… a responsible parent must sign the application form.
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:
Øhold a permanent visa, including an adoption visa; and
Ø…
Øare under 16 years of age when applying, are 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 (see Attachment B - Significant hardship and disadvantage…)
If an applicant under the age of 16 does not meet the policy guidelines reproduced immediately 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 whole of Attachment B – Significant Hardship and Disadvantage is reproduced as follows:
ATTACHMENT B – SIGNIFICANT HARDSHIP AND DISADVANTAGE
The Macquarie Concise Dictionary and Collins Concise English Dictionary, Australian Edition make the following definitions:
significant of consequence;
important or momentous
hardship conditions of life difficult to endure;
something that causes suffering or privation
disadvantage an unfavourable circumstance, thing, person;
injury, loss or detriment
People would normally be required to demonstrate some or all of the following circumstances:
· inability to gain employment on the grounds that the employment is restricted to Australian citizens, and that comparable or alternative employment is not reasonably available
· difficulty of international travel because the person cannot obtain a passport from their country of nationality/citizenship, or are unable to use a passport issued by that country for safety or similar reasons
· academic (eg research, academic scholarship) or other (sporting etc) potential is being limited or restricted, because the opportunities to reach that potential is available only to an Australian citizen, to the extent that it causes significant hardship.
Decision-makers will need to assess each application on its merits. While policy is not to be applied inflexibly, it must be applied, unless there are special circumstances that would warrant consideration outside that policy.
Evidence of significant hardship and disadvantage is required (eg a statement in writing, with appropriate supporting documentation to demonstrate how they meet the legal requirements and policy guidelines).
The onus is on the applicant to provide the evidence to support the application.
Decision makers must be mindful of the difference between personal needs and personal wants.
Personal needs relate to situations which would give rise to significant hardship or disadvantage if a person could not meet that need. For example, if a person could not find any employment, and was unable to adequately financially support themselves or their family.
Personal wants are aspirations and generally do not constitute hardship (ie the right to vote, election to Parliament, HECS availability, representing Australia internationally in academics or sport).
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 a Higher Education Contribution Scheme) or a domestic fee-paying place. The requirement to be an Australian citizen is only relevant to students who wish to access a loan under the Australian Government’s High Education Loan Programme (HELP) for their student contribution or tuition fee. Further information is available from the Department of Education, Science and Training at should also be aware of situations where it appears that a person takes a course of action for the sole purpose of availing themselves of the exercise of this discretion.
THE HEARING
7. Evidence was given by Gaby’s parents (with the assistance of a Portuguese interpreter); Dr Elizabeth Seeley-Wait and Dr Janina Szyndler, both clinical psychologists. Mr Horan who appeared on behalf of the Minister indicated that a number of persons whose witness statements were lodged by the applicant prior to the commencement of the hearing, where not required for cross-examination. Their statements were received into evidence and will be referred to in these reasons, together with a number of other documents lodged by both parties.
Gelson Tomaz Da Silva
8. Mr Tomaz Da Silva is Gaby’s father. He prepared a statement on 23 September 2009 which was translated to him by an accredited interpreter (Exhibit A1).
9. In his statement, he confirmed that his daughter has grown up in Australia and has undertaken all of her schooling here. At the date the statement was completed, Gaby was in Grade 4 at the Athena School in Newtown Sydney, a private school. He recorded that he was proud of her academic achievements but was concerned that in the event she returned to Brazil, she would struggle because of her poor command of the Portuguese language. He regarded Gaby as a very popular, bright young girl, who has many friends in her immediate community, namely her school and her church. He regards her as a member of the Australian community.
10. In evidence, Mr Tomaz Da Silva said that Gaby has not had any education or training in the Portuguese language. In the home, he said he and his wife speak to each other in Portuguese but they have had to learn some English to communicate with her. Whilst Gaby does understand some Portuguese words, she is not fluent. He said Gaby speaks only English at school and elsewhere. However, she does speak some Portuguese with the other children at their local church. He did not believe that Gaby was capable of reading or writing in the Portuguese language.
11. Prior to moving to Australia, Mr Tomaz Da Silva said he was self-employed for five years making fruit juice. Previously he had been employed selling motorcycles. He did not have any trade qualifications. In Australia he has worked as a plasterer. He said the fruit juice business went bankrupt before he and his family moved to Australia (Transcript, p 164).
12. He acknowledged that if his visa is not extended, he and his wife may be required to return to Brazil at the conclusion of these proceedings. In the event that he and his wife are compelled to return to Brazil, he said Gaby would travel with them, irrespective of the outcome of his daughter’s application. If Gaby is permitted to remain without her parents, there is no one who would be able to care for her. Although he has a sister who lives in Australia as the holder of a student visa, her tenure here is uncertain.
13. Mr Tomaz Da Silva does not know where he and his family would live should they return. He said his family lives Curitiba in Brazil. They are poor and living in rental accommodation and do not own a car. His wife’s parents live in Maringa and are elderly. He thought that family members in Brazil could only provide limited assistance. He did not believe that they would be able to offer accommodation to him, his wife and his two daughters (Transcript p 172-173).
14. He also thought it would be difficult to find employment because friends that he speaks with by telephone report poor employment prospects, indeed some of them have been unemployed for more than 12 months. One of his sister’s who recently obtained trade qualifications in Australia has returned to Brazil and has been unable to find employment (Transcript, p 164 and 167). He also said that wages in Brazil are low compared to those in Australia and they would struggle to meet the cost of rental accommodation. He did not believe he could meet the cost of private schooling for Gaby.
15. In cross‑examination, Mr Tomaz Da Silva said he did not complete any trade type course after he finished school. He could not understand references in the report of Dr Szyndler that he had completed such courses and had worked in the motorcycle industry as a mechanic. He said that he worked as a motorbike sales person and did not perform any mechanical work. He agreed that should he return to Brazil, he could probably work as a sales person but thought it would be difficult to locate that type of work because he is currently aged 42 and understands there is a preference to engage younger persons. He said the wages paid to sales persons would not be sufficient to permit him to provide for his wife and two daughters. He disputed a suggestion put to him by Mr Horan that the Brazilian economy was in a sound position because reports he had heard from others indicated they had been unable to obtain employment. He referred to his sister who was unemployed for one year, despite having trade qualifications (Transcript, p 167).
16. Mr Tomaz Da Silva said that he did not undertake any courses or training before he commenced his fruit juice business. He disputed a comment made by Dr Szyndler that he completed food and nutrition training. He said he purchased machinery and was instructed by the manufacturers how to use it. He denied that the business was operating when he left to come to Australia and denied that he had told Dr Szyndler that his mother continued to manage it. He said that his plans to travel to Australia were rushed and his mother was left to prepare the paperwork. He said she was closing down the paperwork not the business (Transcript, p 169).
17. He commenced the fruit juice business in partnership with another person. Initially he had employees. The partnership ended and his wife worked with him. His sister also helped him for a while because he could not afford wages. He operated the business for five years until it was no longer viable. He denied having any management or accounting skills and said little book keeping was required (Transcript p 170-172, 178).
18. In his statement, Mr Tomaz Da Silva recorded that he hears about the continuing fighting, corruption and lawlessness that is happening in Brazil … (Exhibit A1 at [6]) and said that having lived in Brazil he prefers to remain here. By way of example, he said that in Australia a presence of police causes him to feel safe. However, in Brazil people are afraid of the police because a lot of the police in Brazil are worse than the bandits and the robbers (Transcript, p 173-174).
19. It emerged during the evidence of Mr Tomaz Da Silva that there was considerable variation between his evidence before the Tribunal and the contents of Dr Szyndler’s report. This resulted in discussions between the barristers and me about the dialect spoken by the interpreter engaged to assist Mr Tomaz Da Silva during his interview with Dr Szyndler. The issue was not resolved. However, I note that in a similar application, it emerged that the interpreter engaged was fluent in the Portuguese language as opposed to the Brazilian‑Portuguese dialect. On the information provided by the interpreter in that hearing, it was understood that there is a considerable distinction between the two dialects. For the purposes of this decision, I will rely on the evidence given by Mr Tomaz Da Silva before the Tribunal. I am satisfied that the interpreter in this hearing was properly accredited in the Brazilian‑Portuguese dialect.
Sandra Tomaz Da Silva
20. Mrs Tomaz Da Silva is Gaby’s mother. She prepared a statement dated 23 September 2009 which was translated by an accredited interpreter (Exhibit A2). She also gave evidence with the assistance of an interpreter.
21. In the statement, Mrs Tomaz Da Silva recorded that she, her husband and Gaby came to Australia to seek a better life. She recorded when we first arrived in Australia we didn’t plan on staying very long. But time has gone by and Gaby has grown roots here, in the Australian community (Exhibit A2 at [3]).She regarded Australia as being positive for her family. Gaby is respected at her church and in her school, she has many friends and she enjoys the Australian way of life. She thought having to return to Brazil would be a terrible experience for Gaby because she would lose her friends and return to a place that she does not know (Exhibit A2 at [7]).
22. Mrs Tomaz Da Silva stated that if Gaby’s application was successful, she and her husband had not decided whether Gaby would remain in Australia. She acknowledged that her immigration status will not change by Gaby’s application for citizenship. Her priority is her child’s well-being and she was happy in the knowledge that [her] daughter will grow up safe and free in the place that she calls home; Australia (Exhibit A2 at [10]).
23. In evidence, Mrs Tomaz Da Silva sought to amend her statement to record that she would like Gaby to be with her (Transcript, p 186). During cross‑examination she said she was concerned about Gaby’s safety in Brazil. However, regardless of those concerns, she was not prepared to leave Gaby behind and separate her from her younger sister (Transcript, p 188). When asked what prompted her to change her mind, she said that at the time she prepared her statement, it was contemplated that Gaby may be able to remain in Australia in the care of her sister-in-law, Ligia Ribeiro, who was residing in Australia under a work visa and with whom Gaby had a strong and close relationship. However, after preparing her statement, Ms Ribeiro’s visa had expired and she returned to Brazil. Ms Ribeiro gave evidence in another application before the Tribunal and said that she has applied to return to Australia (Transcript, p 193-194).
24. Mrs Tomaz Da Silva has not worked in Australia. She was not educated beyond high school and does not have any trade qualifications or certificates. Approximately 17 years ago and before marriage, she worked in Brazil as a secretary and a receptionist. She was not confident that she could obtain employment in Brazil now because she had been away for so long (Transcript, p 186).
25. In the home, Mrs Tomaz Da Silva said that she and her husband speak Portuguese to each other. Gaby predominantly speaks English in the home and always speaks English outside the home. Although she has encouraged Gaby to speak Portuguese, Gaby’s familiarity with the Portuguese language is minimal. She said Gaby does not read or write Portuguese (Transcript, p 191).
26. Mrs Tomaz Da Silva said her parents, a brother and a sister live in Brazil. Her parents are elderly and retired. She does not believe that they could afford to feed and sustain another four people (Transcript, p 188). She also thought that other members of her family would not be able to assist them.
27. In cross‑examination, Mrs Tomaz Da Silva confirmed that she was concerned about the level of violence in Brazil. While she could care for her daughters and try to protect them, she could not ensure their safety because Brazil is a dangerous place (Transcript, p 188). She has observed violence, including a person having been shot and killed in Maringa (the town where her family lives). She has also seen people fighting in the streets (Transcript, p 195).
28. In 2010 Gaby was in the 5th Grade at the Athena (private) School, in Newtown in Sydney. Mrs Tomaz Da Silva takes Gaby to school daily by train and usually collects her by train at the end of the day. Sometimes Gaby is collected by her father. The school is a combined primary and secondary facility and it is intended that Gaby complete her education at that school (Transcript, p 190-191).
29. Mrs Tomaz Da Silva said that she and her husband intended to come here as tourists for a maximum period of three months. They have not returned to Brazil since their arrival in Australia in 2002. A car that they owned in Brazil was sold to help meet the cost of airfares and furniture and other possessions that they owned have been given to her mother (Transcript, p 193).
SUMMARY OF WITNESS STATEMENTS
30. As stated above, a number of persons who prepared witness statements were not required for cross‑examination. Those statements are summarised below.
31. Gaby prepared a statement on 23 September 2009 when she was 9 years old (Exhibit A5). She recorded that she applied for Australian citizenship because it is her preference to live in Australia for the rest of her life and it is the only place that she knows. She enjoys school and she is good in the subjects of English and maths which are also her favourite subjects. She did not complete any schooling in Brazil. Gaby stated that if her application for citizenship is denied she would have to live in Brazil, she cannot read or write in the Portuguese language and she does not remember any persons in Brazil. She expressed her unhappiness at the possibility of losing contact with her friends and other family members who live close to her. She has frequent contact with two aunts and an uncle. Her aunty, Ligia Ribeiro is now in Brazil and has applied to return to Australia. At the date Gaby’s statement was prepared, her uncle Rodrigo was waiting on the outcome of his visa application to allow him to travel to Australia.
32. Christiane and Ricardo Brancalhao, Gaby’s aunt and uncle, each prepared statements in English (Exhibits A7 and A8). They both stated English was Gaby’s first language. Ricardo Brancalhao recorded that Gaby had assisted him to speak English. Christiane recorded that Gaby has difficulty understanding the Portuguese language and she is unable to read or write it. They both confirm that Gaby has many friends, is intelligent and enjoys school, an opinion also expressed in a statement completed by Ligia Ribeiro (Exhibit A6).
Dr Elizabeth Seeley-Wait
33. Dr Elizabeth Seeley-Wait is a clinical psychologist in private practice in Sydney. She holds a Master’s degree in human development and a Master’s degree and PHD in clinical psychology. She has an extensive curriculum vitae indicating clinical, practical and research experience in Australia and in the United States.
34. Dr Seeley-Wait was asked to assess Gaby and her parents on 23 September 2009 and 13 October 2010. She prepared two reports dated 5 October 2009 (Exhibit A3) and 8 November 2011 (Exhibit A4). The second report embraced the first report and contained information about changes in the family’s circumstances.
35. Dr Seeley-Wait was asked to focus her interview and conduct an assessment of Gaby in order to form an opinion … regarding her potential reaction to being required to leave Australia and move back to Brazil. She was asked to report on the likely emotional and psychological consequences for Gaby, should such an event occur (Exhibit A3).
36. Dr Seeley-Wait said that when forming her opinion she considered Gaby’s assimilation and acculturation to Australian culture and way of life and other matters concerning language and self-identification. In preparing her report, Dr Seeley-Wait also spoke with one of the teachers and the principal of the Athena School. She said those discussions were useful because teachers are other adults in the child’s life and who interact with the child in an environment outside the home. The information obtained will either corroborate the information obtained from the parents or offer different perspectives. A combination of the information obtained from all the persons interviewed will give a thorough and accurate assessment (Transcript, p 200).
37. In relation to the most likely emotional consequences that Gaby will face if she is required to move to Brazil, Dr Seeley-Wait ultimately concluded:
Taking into consideration the cumulative picture of the assessments of Gaby and interviews with her parents, her teacher and school principal, it is my opinion that she will suffer significant negative emotional hardship should she be required to leave Australia/move to Brazil. I have found that she can hardly turn her thoughts to this possibility. She became very upset when we spoke about this topic in her assessment and she reported that she “…just can’t believe that could happen”. Given her predominant coping style of denial and her age, I believe this to be true (Exhibit A4, p 7).
38.Dr Seeley-Wait said that she expressed the opinion recorded above:
… after speaking with Gaby, her parents, the teacher and then the principal, all the evidence actually was extremely, and, you know, very similar across the board. Pretty much everyone said, or every – I should say, every person said, in Gaby’s life, including Gaby, that she is very attached to her current way of life; that, in fact, she’s so attached that she can’t imagine another way of living, and that she has her identity really built in to being Australian and living the life she currently lives. Her teacher and her principal couldn’t really speak to, you know, her family life or anything like that, but they spoke about her as a student, and as a person that they know quite well, because of how small their school is, and they were able to convince me that she is – sees herself as a leader at that school, sees herself as an integral part of that community (Transcript, p 200-201).
39. Dr Seeley-Wait said that the opinions that she expressed in her reports were based also on her own clinical judgement. Whilst she did take account of and was influenced by the information that she obtained, she stepped back and used her experience and knowledge about child development and how most children are (Transcript, p 201).
40. Dr Seeley-Wait concluded that the identity of a 9 year of child (as she was at first interview) will be formed by family ties and relationships, the role of the child within a family and in a school, favourite hobbies, sports and other talents. She thought Gaby’s identity was strongly influenced by her school and her role in it because she was excelling academically and loved going to school. She reported that Gaby:
… will suffer a significant blow to her identity and identity formation at this age should she move to a country where she cannot read the language. She is likely to struggle academically for the first time in her life. She is a bright child and is very likely to learn to read Portuguese relatively quickly and catch up academically over time. However, it is likely that the adjustment period (i.e., obtaining of language, making of friends and excelling in school again etc.) for Gaby would last approximately two years, which is a significant portion of Gaby’s life given her age (Exhibit A4, p7).
41. In evidence, Dr Seeley-Wait said from a psychological point of view, adjustment to a different country, its culture and its language is more difficult, as a child becomes older. She thought that Gaby had become entrenched in Australia and therefore, her identity is built into being an Australian and living in Australia (Transcript, p 201). In relation to the adjustment period of 2 years, the witness was not suggesting that psychologically, Gaby would be better after a period of two years (Transcript, p 202).
42. Dr Seeley-Wait also said that people find it more difficult to cope with events that are out of their control. Therefore, the period of adjustment necessary and the adverse psychological effects on Gaby by having to move to Brazil will be influenced by the absence of choice on the part of Gaby and her parents (Transcript, p 202).
43. Dr Seeley-Wait formed the opinion that Gaby will suffer actual psychological trauma should she be compelled to leave Australia. She said that a component of trauma is a perceived violation of a person’s familiar ideas about the world. Despite Gaby being a relatively resilient child, she predicted she will suffer great psychological hardship from such a major event (Exhibit A4, p 7).
44. In cross‑examination, Dr Seeley-Wait agreed with the propositions put to her that the elevated anxiety tendencies she found in Gaby did not presently require treatment and were not uncommon in children. She said Gaby was very sociable, she makes friends easily, is self assured and intelligent. She thought those features would help her if she moved to Brazil. She also thought that those features of her personality were protective factors (Transcript, p 204).
45. Dr Seeley-Wait disagreed with an opinion expressed by Dr Szyndler that Gaby did not have any internal factors which in themselves placed her at risk of developing psychological problems. She said Gaby was at a subclinical level of anxiety and was vulnerable towards developing generalised anxiety disorder. She said that the issues Gaby would face if she returned to Brazil would arise with many children in the same circumstances. However, Gaby differed because not every child has a vulnerability towards developing anxiety (Transcript, p 205).
46. Dr Seeley-Wait agreed that there are many issues and features in Gaby’s relationship with her parents that could assist her in any transition to another country, namely, reassurance being given by her parents, the attitude and ability of her parents to cope and familiarity with some members of her extended family who previously lived in Australia. She agreed that it was difficult to predict the future with any certainty and the extent of the risk that Gaby faced was difficult to determine. Whilst there would be a period of adjustment, it did not follow nor was it implied that after two years, the risk of psychological issues would be low. When asked whether the only possible long-term risk facing Gaby was increased anxiety, Dr Seeley-Wait said:
… No. I mean this is all, I mean, hypothetical. I don’t know the future either, but I think that she has a vulnerability towards anxiety. I think she has the vulnerability to – she’s on the cusp; she could have an anxiety disorder, should she be exposed to such a serious and significant stressor. I did not see any other vulnerabilities within her, but I can say that should her family undergo a very significant stressor, like having to move away when they don’t want to move away, and she’s having to do that as well, I think that she would be – she would suffer a great deal, psychologically from that. It might manifest in other ways, but the only way that I can say – this is the only vulnerability I saw, would be for sure that she would have an anxiety disorder. I have no idea if she’s become depressed, or if she would become something else, or have other problems associated with what I think would be a trauma for her. But I do think that she would have an anxiety disorder (Transcript, p 208).
47. The expression psychological trauma used by Dr Seeley-Wait in her report (Exhibit A4, p7) was used deliberately. She said that trauma when used or expressed by a clinician is applied specifically and deliberately with caution and with a lot of thought. She said the expression does not refer only to an event or phenomena which is uncontrollable or overwhelming but might arise also from negative experiences. She dismissed a suggestion put to her that it was difficult to predict what would happen to Gaby if she returned to Brazil. Dr Seeley-Wait predicts that Gaby would suffer psychological trauma by having to move. She said that the level of probability of developing a psychological trauma was 100 per cent because Gaby would have to return to Brazil against her free will and her parents’ free will. Gaby’s age is also relevant in assessing the probability of developing psychological trauma (Transcript, p 209).
48. Dr Seeley-Wait said that the psychological trauma is likely to develop into an anxiety disorder because she assessed Gaby as subclinical which means that she almost satisfied the criteria for a generalised anxiety disorder in the DSM‑IV. Therefore, Gaby is vulnerable. Factors which would also precipitate psychological illness would be the situation that the family faces in Brazil and Gaby’s parents’ response to it, together with Gaby’s age and her assimilation, familiarity and entrenchment in Australia (Transcript, p 214).
49. Dr Seeley-Wait agreed that the basis of her conclusions was the involuntary nature of having to move to Brazil. She also agreed that the negative consequences of that move could be diminished if Gaby’s parents approached the move in a positive and protecting manner. Their ability to settle with some financial security would also minimise the adverse effect on Gaby. Dr Seeley-Wait said that although these factors will not protect Gaby from experiencing a psychological trauma or suffering from an anxiety disorder, they will enable her to recover more quickly (Transcript, p 211).
50. In cross-examination, Dr Seeley-Wait was informed of Dr Szyndler’s opinion that it was inevitable that Gaby would suffer some distress by having to move and that her main risk was of developing an adjustment disorder. Dr Seeley-Wait remained of the opinion that the main risk facing Gaby was developing a generalised anxiety disorder (Transcript, p 212-213).
51. I asked Dr Seeley-Wait about the likely consequences on Gaby if she was required to move to Brazil despite being granted Australian citizenship. Dr Seeley-Wait said that she had not given thought to that scenario but when she reflected on it, she said:
I would think that the end result sounds similar where she would be having to leave, and that it would be something a little bit – maybe slightly bitter sweet to be able to have citizenship but then – she is her parents child she will need to be with her parents. I would think that the results would be very similar (Transcript p218).
DR SZYNDLER
52. Dr Szyndler prepared a report at the request of the Minister following interviews conducted on 21 April 2010 collectively and individually with Gaby, her parents, Christiane and Ricardo Brancalhao and Ms Pat Alvez, the proposed carer (Exhibit R1). The interviews were conducted with the assistance of an interpreter.
53. In evidence, Dr Szyndler confirmed the opinion expressed in her report that Gaby was not vulnerable to developing any mental illness or psychological disorder, nor did she detect anything indicative of significant anxiety (Transcript, p 235). She reported that there are factors that would protect Gaby from developing psychological problems (Transcript, p 227-228).
54. Dr Szyndler thought that Gaby would inevitably experience some distress if she left Australia permanently. Her main risk was the development of an adjustment disorder which means that she may experience more difficulties coping and may become anxious or depressed (Exhibit R1 at [36]). In evidence, Dr Szyndler said that having to leave Australia and leaving behind her school and her friends would be an upsetting event. It was in that context that Dr Szyndler used the expression distress. She said that type of reaction would normally be expected (Transcript, p 228).
55. An adjustment disorder was, in her opinion, the diagnosis given where a person’s situation moves from:
…normal anticipated distress to something that has a more significant impact to a psychological response … leads to development of clinically significant emotional or behavioural symptoms (Transcript, p 228)
If the adjustment disorder was acute it would be expected as having symptoms for less than six months. If the condition became chronic the symptoms could persist for a longer period (Transcript, p 228). If Gaby became more settled and her initial distress was abated, she would not satisfy the clinical definition of adjustment disorder. If her symptoms comprise nervousness, worry and fears of separation, the diagnosis would be adjustment disorder with anxiety (Transcript, p 229).
56. Dr Szyndler said she did not consider it was inevitable that Gaby will develop an adjustment disorder if she returns to Brazil. She acknowledged that an assessment of the degree of risk is uncertain because a range of factors interact to lead to vulnerability. Those factors include individual characteristics such as temperament and pre-existing problems and environmental factors, such as economic and social stressors that impact on the parents (Transcript, p 229).
57. In cross-examination, Dr Szyndler said that she did not contact any of the teachers at Gaby’s school. She said from the interviews conducted with Gaby and her parents, there was nothing to suggest that there were any academic, social or behavioural issues which would warrant discussion with the school. She did agree there could be benefit in contacting an outsider, such as a teacher who has spent a great deal of time with the child in a different environment (Transcript, p 231-232).
58. Dr Szyndler was aware that Gaby attended a private school with small class sizes which in her experience, usually produce better outcomes in literacy. In her experience, pupils who attend such schools come from families where there is a considerable socio and financial economic advantage. Whilst there may be a better academic outcome, she was not aware of any correlation between psychological health and class sizes. She thought that was more to do with the school culture and the way that the school is managed (Transcript, p 234).
59. Dr Szyndler said Gaby was happy at school, she had many friends and she regarded school as being important to her. Dr Szyndler was not sure whether the school community was also important to her. She thought the school was run by …the Scientologists. She said Gaby’s community was more linked to her parents’ Pentecostal church and their community in which she was quite involved (Transcript, p 235).
60. Dr Szyndler was informed that Dr Seeley-Wait had expressed an opinion that Gaby has a subclinical level of generalised anxiety. She said she did not detect any symptoms in Gaby that would support that diagnosis. She also reaffirmed her opinion that there was the potential for Gaby to develop adjustment disorder with anxiety depending on the situation that the family will face on their return to Brazil. Dr Szyndler did not believe that her age of 11 years and her level of schooling were factors which increased the risk of adjustment disorder with anxiety (Transcript, p 236).
61. Dr Szyndler said the psychological health of Gaby will be influenced by her family’s socio-economic position when they return to Brazil and the ability of her parents to cope with the new environment. Dr Szyndler thought that Gaby and her parents would not enjoy the same living conditions or standard that they presently enjoy in Australia but on the history given to her, there was nothing to indicate that they would be out on the street or without any potential sources of support (Transcript, p 237).
62. Dr Szyndler acknowledged that Gaby has never had to face any significant adverse life events and therefore, she could not say with any certainty how Gaby would respond to living in Brazil. She said that there would not need to be extreme hardship or deprivation before there would be a detrimental impact on her (Transcript, p 238). She agreed that there is a possibility that Gaby would suffer psychological trauma (on the basis of a definition adopted by Dr Seeley‑Wait, namely an uncontrollable and overwhelming experience). She also agreed that returning to Brazil would be a major event which could cause psychological hardship (Transcript, p 239).
COUNTRY INFORMATION AND DATA
63. The Minister lodged a bundle of documents which contained information about Brazil (Exhibit R3). The information has been prepared by the Department of Foreign Affairs and Trade (DFAT), Austrade, Bloomberg, United Nations Children’s Fund (UNICEF) and United Nations Educational, Scientific and Cultural Organisation (UNESCO).
Education
64. Public and private education is available in Brazil. Private schools charge fees whereas public schools must offer education without fee. Public education is administered on a tripartite basis between Federal, State and Municipal Governments. Preschool and day care centres are available for children between the ages of three and seven. The first eight years of schooling provides basic education and is compulsory from the age of seven. Secondary education is available for the last three years of schooling after completing primary school. Higher education in universities or other institutions for postgraduate and technical study is also available (Exhibit R3, p 6-7).
65. The English language is considered essential for academic and professional progress Brazil. English is studied as part of the secondary school curriculum. However, in public schools language enforcement and the content of the subject is considered to be weak. Therefore, many private schools provide English as a second language.
Employment and Economy
66. The information prepared by Bloomberg provides that in 2010, the Brazilian economy was expanding (Exhibit R3, p 10-13). In July 2010, unemployment was recorded at 6.9 per cent (which is the second lowest unemployment rate on record) and a decrease from 7 per cent in the previous quarter. The economy was regarded as running at full capacity; inflation was not considered to be under threat (the annual forecast was 4.5 per cent); there was growing domestic demand and annual growth in the first quarter of 2010 was 9 per cent (above the annual forecast of 5 per cent for the whole of 2010). The Consumer Price Index had fallen and the bench mark interest rate of 10.75 per cent was forecast to be stable for the whole of 2010.
67. The International Monetary Fund regards Brazil as the eighth largest economy in the world with a Gross Domestic Product of $US1.481 billion. It has a Standard and Poor’s rating of triple B minus. The global financial crisis had minimal impact on Brazil. The foreign investment in Brazil in 2010 was forecast to be $US45 billion (Exhibit R3, p 16).
68. Brazil has well developed industries in the agricultural, mining, manufacturing and service sectors.
Government and Political Overview
69. Brazil is a republic and a democracy, comprising 26 states with three tiers of government at Federal, State and Municipal level. Voting is compulsory for all persons over the age of 18 years and optional for persons aged between 16 and 17.
70. Brazil regularly participates in the World Economic Forum and in the G8 and G20 summits. The literature prepared by the DFAT records that the Federal Government has been attempting to improve living conditions for poor people in Brazil. The Ministry of Social Development transfers a stipend to parents to ensure adequate food and clothing, provided that they take their children to regular medical check-ups and to keep them at school. In 2009 21.5 per cent of Brazilians were living below the national poverty line, a reduction of 6.6 per cent from the 2003 annual figure (Exhibit R3, p 15-16).
71. Although Brazil is enjoying considerable economic growth, it is thought that there are considerable difficulties implementing economic reform, especially in tax and business regulation. Key challenges facing the Brazilian Government include judicial reform, improving education and fighting crime and corruption. In the long term, economic growth will be dependent on considerable investment in infrastructure especially in railways, roads, ports and the energy sector.
Health
72. The Unified Health System (SUS) commenced in Brazil in 1988 when a new Federal Constitution was promulgated and as a result, access to healthcare has become a right of every citizen. Prior to 1988, access to healthcare services was restricted to those who could afford private healthcare services and those who had a right under the social security network, being workers with a registered workers’ record book. Before SUS was implemented, 30 million people had access to healthcare services and now the figure has increased to 190 million.
73. Data produced by the Ministry of Health in Brazil provides that SUS administers 5,900 registered hospitals, 64,000 primary healthcare units and 28,000 family healthcare teams. It has also provided and administers mobile emergency healthcare services, mass vaccination programs for children and the elderly, national health policies targeting women’s health and workers’ health. Almost all hospitals in Brazil, including private and university hospitals operate under an agreement with SUS and form a health network to secure access to healthcare services for all Brazilian citizens (Exhibit R3, p 32).
Crime/Civil Unrest
74. The DFAT Smart Traveller website provides information to those who are travelling to Brazil. While it is directed to tourists, the website provides useful information about safety and security in Brazil. Tourists are warned about the high levels of serious crime in Brazil including muggings, armed robberies and sexual assaults, particularly in the larger cities. Carjacking is also common in other cities. Gang violence is common throughout São Paulo and Rio de Janeiro and is especially directed towards police. The website makes it clear that tourists are susceptible to certain crimes. However, there is nothing to suggest that locals are immune (Exhibit R3, p 21-22).
Housing and Social Security
75. There is nothing in the information lodged on behalf of the Minister concerning the availability, quality or cost of housing. The Ministry of Social Development provides a stipend to parents to ensure children are adequately fed, clothed and educated. However, the stipend is conditional on parents taking their children to regular medical checks and keeping them in school. There is no evidence of a social security type system in Brazil or the availability of income benefits payable to persons who are unemployed, elderly, ill or disabled (similar to those existing in Australia).
APPLICATION OF POLICY – The ACIs
76. A person under the age of 18 years is eligible to become an Australian citizen (s 21(5) of the Act). However, the Minister or his delegate may exercise the discretion in s 24(2) of the Act and refuse approval of Australian citizenship to an eligible person. The ACIs, is a policy document that provides guidance to decision-makers in exercising the discretion available in s 24(2). The application and interpretation of the ACIs was the subject of lengthy submissions in this application for review.
77. The ACIs provide that the discretion to refuse to approve an application for Australian citizenship would usually be exercised where the applicant does not meet the policy guidelines. The ACIs also record that when making a decision to either refuse or approve an application there are three primary considerations that need to be taken into account. They are the legislation, the best interests of the child and the policy guidelines themselves.
78. The relevant legislation is the version of Act in force before 9 November 2009. On 9 November 2001, s 21(5) of the Act was amended by the Australian Citizenship Amendment (Citizenship Test Review and Other Measures) Act 2009. Unlike its predecessor, s 21(5) now requires an applicant under the age of 18 to be a permanent resident, both at the time the application for citizenship was made and at the time the Minister's decision was made.
79. Section 21(5) of the Act as it applies to Gaby, is satisfied because the only eligibility requirement is whether an applicant is under the age of 18 years at the date of application. Although there is no legislative requirement of permanent residence in the Act in force at the time Gaby made her application, it is a feature in the ACIs. I will return to that issue later.
80. The second primary consideration is the best interests of the child. Article 3(1) of the Convention on the Rights of the Child (the Convention) requires that in all action involving children, the best interests of the child shall be a primary consideration. Australia is a signatory to the Convention and ratified the treaty in November 1989. While the Convention has not directly become law in Australia, the Declaration of the Rights of the Child is included in schedule 3 of the Australian Human Rights Commission Act 1986.
81. The third primary consideration prescribed by the ACIs is the Policy Guidelines. The ACIs provide that persons under the age of 16 will usually be approved under section 24 if they hold a permanent visa, are living with a responsible parent who is an Australian citizen and who would suffer significant hardship or disadvantage within the meaning of Attachment B of the ACIs. In previous decisions, I expressed the view that the requirements set out in the ACIs are not prescribed in the relevant legislation and therefore, place a fetter on the discretion (Re SNMX and Minister for Immigration and Citizenship (2009) 110 ALD 645; Re Zlatanovski and Minister for Immigration and Citizenship (2010) 114 ALD 452). In the decision in Singh v Minister for Immigration and Citizenship [2011] FCA 685, Marshall J decided on 17 June 2011 that the ACIs are not ultra vires. I am bound to follow His Honour’s decision.
82. Gaby does not hold a permanent visa and she is living with a responsible parent who is not an Australian citizen. If she can demonstrate that she would suffer significant hardship or disadvantage in the event that her application is refused, her application should be approved. Attachment B of the ACIs provides definitions of significant, hardship and disadvantage. It also sets out the circumstances that will qualify as significant hardship and disadvantage as follows:
·inability to gain employment on the grounds that employment is restricted to Australian citizens, and that comparable or alternative employment is not reasonably available
·difficulty of international travel because the person cannot obtain a passport from their country of nationality/citizenship, or are unable to use a passport issued by that country for safety or similar reasons;
·academic (eg research, academic scholarship) or other (sporting etc) potential is being limited or restricted, because the opportunities to reach that potential is available only to an Australian citizen, to the extent that it causes significant hardship.
83. Attachment B directs decision-makers to assess each application on its merits and whilst policy is not to be applied inflexibly, it must be applied unless there are special circumstances that would warrant consideration outside the policy.
84. If an applicant does not meet the policy guidelines ‑ and Gaby does not ‑ the decision-maker 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.
85. The word unusual was the subject of extensive submissions by both parties. The parties referred to my decision in Re Zlatanovski where I adopted the dictionary definition that was applied by Moore J in K v Cullen and Others (1994) 126 ALR 38. Moore J decided that the words unusual and exceptional both meant out of the ordinary (at 44-45) which is consistent with the interpretation adopted by Lingren and Emmett JJ in An v Minister for Immigration and Citizenship [2007] FCAFC 97 at [7] and [82]. Mr Gilbert also referred to the decision of the High Court in Collector of Customs v Agfa-Gevaert Ltd (1996) 186 CLR 389.
86. In Agfa the High Court had to decide on the appropriate interpretation of a composite phrase that did not have a trade meaning but consisted of words that did have a trade meaning. The Court concluded that if a composite phrase does not have a trade meaning, a Court or Tribunal can then take notice of the trade meaning of a word or words within the phrase, provided that the interpretation of those words does not produce a result which is absurd, unworkable, impracticable, inconvenient, anomalous, illogical, futile, pointless, or artificial (at 401).
87. In An, the Full Court was concerned with the interpretation of the word exceptional. Lindgren J referred to Agfa and decided that the ordinary meaning or common understanding of a non-technical word more often than not is a matter of fact. However, questions of law often arise as to whether the word in issue is to have an ordinary non-technical interpretation and if so, whether the interpretation is affected by the statutory context in which it is found (at [4]). Referring to the decision in Agfa in the context of statutory context, His Honour concluded (at [4]):
… the “statutory context” refers not only to the immediately surrounding text, but also to the piece of legislation as a whole, and its purpose or object. Context provides a sound starting point for construction in all cases, even though the conclusion may ultimately be reached that the word is hardly influenced by context at all.
88. His Honour said (at [7]):
The word "exceptional" is a simple non-technical word. It means "unusual" or "out of the ordinary" and is used in that sense in Sch 2, cl 856.213(c) of the Migration Regulations 1994 (Cth) (the Regulations). The word is not, however, of the obviously evaluative kind referred to above. It is necessary to carry out the legal task of exploring the meaning of the word in the particular regulatory context in which it occurs with a view to identifying, if it can be done, what is the "usual" or "ordinary" case that was in contemplation against which exceptionality is to be measured. As will appear, once this task is completed, it becomes clear that it was open to the Tribunal, if not required of it, to find that the position in question was not exceptional.
89. The decision in An concerned the interpretation and application of the word exceptional. I am concerned with the word unusual fond in the ACIs. In examining the word exceptional, Lingren J found that there was an equivalent meaning between exceptional and unusual. Of significance, I think, is the process set out by His Honour, namely, that the usual or ordinary case needs to be considered and against that exceptionality is measured.
90. In the policy, the word unusual is found within the composite phrase the unusual nature of those circumstances. Consideration must be given to Gaby’s full circumstances, including her best interests, as a primary consideration, in exercising the residual discretion conferred by the ACIs.
CONCLUSION
91. Gaby is presently 11 years of age. She arrived in Australia in 2002 at the age of three. She has never returned to Brazil. She resides here with her parents and her sister Isabelle. Isabelle is not a citizen of Australia despite having been born here. They are all holding Bridging E visas pending the determination of this application.
92. Gaby does not meet the policy guidelines. Therefore, I am compelled to consider her full circumstances, including her best interests to determine whether the application warrants approval because of the unusual nature of her circumstances.
93. Gaby has no memory of Brazil. All of her education has been undertaken in Australia. All her friends reside here and she has many interests, both within and outside the school. The evidence before the Tribunal indicates that Gaby is an enthusiastic, happy and bright child. She is settled in her community which includes her family, her school and her church. In her own statement – which no doubt was completed on her behalf but which I am satisfied is accurate – she states that she enjoys school, particularly maths and English and aspires to be a school teacher. She also states that she prefers to remain in Australia.
94. On the other hand Gaby is a citizen of Brazil. The Republic of Brazil issued a passport to her in May 2002 which presumably permitted her to travel to Australia (T6, p 45). Her passport expired on 13 May 2007 and it is not known whether it has been renewed. Her parents remain citizens of Brazil and applications made by them to remain here permanently have been unsuccessful. Irrespective of the outcome of this review, they are at risk of being compelled to return to Brazil.
95. The application for citizenship by conferral was made in Gaby’s name with the consent of her father (T5). She did not give evidence, presumably because of her age. I will take account of the contents of her statement. The evidence from her family, particularly her parents and the evidence of Dr Seeley-Wait, supported her application for Australian citizenship. However, my decision is based on all the circumstances of the case, including the evidence of Dr Szyndler.
96. I am required to make the correct or preferable decision on the material before me. As indicated earlier, Gaby cannot meet the policy guidelines. There remains however, a residuary discretion which compels me to consider the full circumstances of the case, including her best interests, in order to determine whether the application warrants approval because of the unusual nature of those circumstances.
97. The parties agree that consistent with Australia’s treaty obligations, the best interests of the child must be a primary consideration pursuant to Article 3(1) of the Convention. The ACIs do not define the phrase or provide guidance as to what constitutes the best interests of the child. A definition is not found in the Convention itself. However, the Preamble to the Convention recognises that children are entitled to special care and assistance, that families are a fundamental group of society and are a natural environment for the growth and wellbeing of children who should be permitted to grow in a family environment in an atmosphere of happiness, love and understanding.
98. In broad terms, I am satisfied that the best interests of a child are served by allowing a child to develop and grow in a safe, stable and emotionally secure environment and by permitting the child to enjoy continuing opportunities of education and a high standard of health.
99. Gaby’s interests are best served by the continued support and care of her parents, the maintenance of her wellbeing and security, together with a family environment which provides an atmosphere of happiness, love and understanding (preamble to the Convention). Having observed and listened to Mr and Tomaz Da Silva, I have no reason to doubt that Gaby’s best interests can be served and will continue to be served in Brazil. I also note that like Australia, Brazil is a signatory to the Convention and ratified it in 1990. Therefore, Brazil also has an obligation to ensure the protection and well-being of children.
100. For reasons which follow, I am unable to find that there is anything unusual about the circumstances of this case to warrant approval of Gaby’s application.
101. Gaby is now 11 years old. She has lived in Australia for eight years which I acknowledge is a significant portion of her life. All of her schooling has been completed here and her friendships, established predominantly through her school and her church are long‑standing. However, she is a primary school student and has not yet reached a degree of independence from her parents. She is not at a stage where her parents permit her to socialise and pursue interests independent of them. She is not yet at an age where her aspirations and ambitions are being pursued.
102. Gaby is completing Year 5 at the Athena School. Class sizes are small and according to the evidence of Dr Szyndler, are conducive to a child’s learning. The country information provided by the Minister indicates that Brazil has both private and public schools. Private schools charge fees. Public schools offer education without fee. Gaby would be eligible to enrol in either and I accept that private schooling will depend on her parents’ financial circumstances. The opportunity therefore exists for her to continue her education in Brazil.
103. An argument raised in support of Gaby’s application was the difficulties that will arise because of her poor command of the Portuguese language and inability to read or write in Portuguese. I accept that Gaby is not fluent in Portuguese. However, I am not satisfied that her spoken Portuguese is at a level that would prevent her from integrating in Brazil. I note that Dr Szyndler reported that during the interview, Gaby spoke to her parents in Portuguese and appeared to do so confidently (Exhibit R1 at [16]). I accept that she will be at some disadvantage because she does not read or write the Portuguese language. However, Dr Seeley-Wait was of the opinion that she would be able to learn it relatively quickly and catch up academically over time. I accept that opinion. Gaby is familiar with the language and that will facilitate the development of her literacy skills. English is part of the Brazilian curriculum and her fluency in English will serve as an advantage in Brazil.
104. Gaby is obviously entrenched in the Australian way of life and if she returns to Brazil there will be a period of adjustment. In addition to the culture, she will have to adjust to the Brazilian education system, irrespective of whether she is enrolled in a public or private school. The adjustment will extend to issues of curriculum, friendships, relationships with teachers and communication. Dr Seeley‑Wait was of the opinion that the adjustment period would last approximately two years. She was also of the opinion that such a period of time was significant given Gaby’s age.
105. I am satisfied that the opinions expressed by Dr Seeley-Wait with respect to adjustment are well founded. However, such a phenomenon is not unusual. Adjustment is inevitable as circumstances change. Indeed every child moving from primary into secondary school is required to adjust to the new academic environment. Gaby’s circumstances of course, are different because she is moving to a country with which she has no familiarity and where she will need to learn to read and write the local language. I am confident that her ability to comprehend and verbally communicate the Portuguese language gives her some advantage and within a relatively short time, her literacy skills will improve. As her skills improve and she develops relationships in school and the local community, any discomfort and distress that she will experience initially, will diminish with time.
106. I acknowledge that Gaby will experience a degree of unhappiness in losing the camaraderie of her current friends. From the evidence heard in these proceedings and from the contents of the witness statements, it would appear that Gaby is sociable and acquires friends with ease. She also has family members in Brazil, some of whom she knows. Her aunt, Ms Ribeiro who previously lived in Australia and with whom she had a good relationship has returned to Brazil. Gaby’s uncle who previously lived in Australia, now also resides in Brazil. She will also have the comfort and security of her parents.
107. Dr Szyndler said that Gaby would inevitably experience distress and returning to Brazil would be a major event which could precipitate psychological hardship. Depending on the situation in Brazil, she was at risk of developing an adjustment disorder. If that disorder was acute, symptoms would persist for less than six months. If it became chronic, Dr Szyndler thought that the symptoms could persist for a longer period. She said that the magnitude of the risk could not be assessed with any certainty because it is influenced by different variables. Dr Szyndler concluded that Gaby was not vulnerable to developing a psychological illness.
108. Dr Seeley-Wait was much more pessimistic in her prognosis. She concluded that Gaby endured a subclinical level of anxiety and was vulnerable towards developing generalised anxiety disorder if forced to move to Brazil. She disagreed with an opinion expressed by Dr Szyndler that Gaby did not have any internal factors which placed her at risk of developing a psychological illness. Like Dr Szyndler, Dr Seeley-Wait acknowledged that it is difficult to predict the consequences to Gaby if she is required to return to Brazil. She agreed that such a task is hypothetical and there are many variables that will affect the situation in Brazil which might constitute significant stressors. Yet, Dr Seeley-Wait predicted with 100 per cent certainty that the return to Brazil would be both uncontrollable and overwhelming and therefore, qualifies as a psychological trauma. She was also confident that Gaby would suffer an anxiety disorder.
109. I am not prepared to make such a finding. With respect to Dr Seeley-Wait, her conclusions do not follow. On the one hand she accepts that the task is hypothetical and on the other, she states confidently that Gaby will suffer from an anxiety disorder. I also note that she agreed with the proposition that any adverse effects on Gaby can be ameliorated by the positive and encouraging attitude of her parents. Accordingly, I am not satisfied that Gaby will inevitably develop a psychological illness if she returns to Brazil.
110. I prefer the less rigid approach of Dr Szyndler who acknowledged that various factors will determine the effect on Gaby, including her individual characteristics and environmental factors, namely the situation that the family will face in Brazil and the attitude of Gaby’s parents.
111. When Dr Seeley-Wait was pressed by Mr Horan in cross-examination about the validity of her predication, she acknowledged that should Gaby experience financial and emotional security and was able to become settled, she will have suffered trauma but she would recover more quickly (Transcript, p 211).
112. I accept that returning to Brazil will be difficult for Gaby. Leaving her friends and all that she knows and loves will cause her unhappiness. Indeed, she will have to adjust to a new way of life. However, having regard to the evidence of both Dr Seeley-Wait and Dr Szyndler, any unhappiness associated with adjusting to life in Brazil could be ameliorated by the positive attitude of her parents, together with their encouragement and support. The presence of family members in Brazil who she knows will also protect her, or at least minimise the risks of psychological harm.
113. Mr and Mrs Tomaz Da Silva’s ability to adjust to their new life will affect Gaby and this will be influenced by their ability to obtain accommodation and an income.
114. Gaby’s father was employed in Brazil as a motorcycle sales person and later self-employed manufacturing fruit juice. It would appear that he was accomplished as a sales person. His earnings were sufficient to permit him to accumulate savings which were eventually used to finance the purchase of the necessary equipment to commence the fruit juice business. Although that business ultimately failed, he did operate it for five years. His evidence concerning his management and accounting skills appear to have been understated. The business operated for five years which suggests that some management and accounting skills were necessary. There is no evidence that he had any prior experience either in manufacturing or in the food industry. However, he is familiar with the operation of machinery. Those attributes and his experience, in my view, put him in a good position to seek and obtain employment in manufacturing or food industry. Alternatively, he may seek employment in sales.
115. I acknowledge that Mr Tomaz Da Silva has been away from Brazil for many years. There would have been advances in technology and potential employers may prefer to engage younger persons. Nonetheless, he has considerable work and life skills that may attract an employer. He has also been employed in Australia as a plasterer. The building industry in Brazil operates on the basis that employees are largely responsible for all facets of construction as opposed to having a tradesperson with individual skills. Mr Tomaz Da Silva does appear to be a person of some industry and capability and I expect that if he can work in Australia as a plasterer without, in the absence of evidence, any prior skills or training, he may be able to turn his hand to other trades within the building industry in Brazil.
116. The country information indicates that Brazil is enjoying a resurgent economy with declining rates of unemployment. I acknowledge that Mr Tomaz Da Silva said he is aware of persons who are unemployed, including Ms Ribeiro who obtained qualifications in Australia and has been unable to exploit them in Brazil. Little is known about their particular circumstances and I am loath to infer that because those persons are unemployed that Mr Tomaz Da Silva will also be unemployed.
117. Mrs Tomaz Da Silva was previously employed in Brazil as a secretary and a receptionist. She does not have any trade skills or qualifications but did complete high school. It may be that she will initially choose to remain the full-time carer for Isabelle, the youngest daughter. Alternatively, she may be able to secure full or part-time employment and have other family members care for Isabelle during working hours.
118. On balance, I am not prepared to find that Gaby’s parents will be unemployed and therefore be financially insecure.
119. It appears that Gaby’s parents do have extended family in Brazil. While I accept that they have limited means, they do have accommodation which they may be able to offer to the family, if only in the short time, until they find permanent accommodation. The country data provided by the Minister does not contain information about the cost or availability of housing in Brazil generally or specifically in Maringa or Curitiba, the cities in which the family is likely to reside.
120. The country information also indicates that there has been a considerable expansion in medical facilities in Brazil, including public access to hospitals and clinics. Public healthcare is provided without cost. Gaby is therefore entitled to it, should it be required. There is nothing to suggest that the healthcare in Brazil is equivalent to that which is available in Australia but it does exist and it would appear that it is readily available.
121. Particular attention was given by both parents to the prevalence of crime in Brazil. Much attention was also given to it in the country data. Mrs Tomaz Da Silva said she witnessed a person getting shot and killed. However, neither she nor her husband was a victim of crime while living in Brazil. At the age of 11, Gaby is dependent on her parents and it is likely that she will remain in their care. In those circumstances, I would expect that the risk to her of being the subject of a criminal event is relatively low.
122. Having regard to the principles set out in the Convention, there is no evidence to satisfy me that Gaby’s best interests cannot be met if her application is not approved and she is required to return to Brazil.
DECISION
123. For all of the above reasons, I am satisfied that Gaby’s circumstances are not of an unusual nature which would warrant approval of her application for Australian citizenship.
124. The decision under review is therefore, affirmed.
I certify that the one hundred and twenty-four [124] preceding paragraphs are a true copy of the reasons for the decision herein of
Mr John Handley, Senior Member
Signed: Olympia Sarrinikolaou
Legal Assistant
Dates of Hearing 17-19 November 2010
Date of Decision 15 July 2011
Counsel for the Applicant Mr G. Gilbert
Solicitor for the Applicant Ms L. Stewart, Clothier Anderson & Associates
Counsel for the Respondent Mr C. Horan
Solicitor for the Respondent Ms A. Collins, Clayton Utz
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