DE VASCONCELOS And MINISTER FOR IMMIGRATION AND CITIZENSHIP
[2011] AATA 534
•1 August 2011
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2011] AATA 534
ADMINISTRATIVE APPEALS TRIBUNAL )
) No 2009/0984
GENERAL ADMINISTRATIVE DIVISION ) Re VICTOR OLIVEIRA MORAIS
DE VASCONCELOSApplicant
And
MINISTER FOR IMMIGRATION AND CITIZENSHIP
Respondent
DECISION
Tribunal Mr John Handley, Senior Member Date1 August 2011
PlaceMelbourne
Decision The Tribunal affirms the decision under review. (sgd) John Handley
Senior Member
CITIZENSHIP ‑ by conferral – applicant under the age of 18 – born in Brazil – applicant eligible to apply – discretion to refuse application – Australian Citizenship Instructions – application of policy – best interests of child – applicant and parents not permanent residents – whether significant hardship and disadvantage – full circumstances of the case – whether the 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
1 August 2011 Senior Member, Mr John Handley 1. The applicant, Victor, is an infant born in Brazil on 5 July 2003. He applies to review a decision made by a delegate of the Minister for Immigration and Citizenship (the Minister) on 5 February 2009 to refuse his application for citizenship of Australia by conferral.
2. The applicant’s parents are citizens of Brazil who arrived in Australia on 8 December 2005 with Victor. He was then approximately two and a half years old. The application for citizenship was made on 29 January 2009 and consent for the application was given by his father, Mario de Vasconcelos. Victor is presently eight years old.
3. Victor’s parents arrived as the holders of a Sub-Class 676 (Tourist) visa which was valid for two months. They remained unlawfully in Australia until 30 January 2009 when they were each granted a Bridging E visa which has permitted them to remain lawfully in Australian pending the determination of this application.
legislation
4. Section 21(5) of the Australian Citizenship Act 2007 (the Act) provides that a person is eligible to become an Australian citizen, if the Minister is satisfied that the person is aged under 18 at the time the person made the application. However, s 24(2) allows the Minister to refuse to approve an application for citizenship, despite eligibility, pursuant to s 24(2) of the Act.
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 solicitors for the Minister acknowledged that the relevant parts of the policy, the ACIs, found within the T-documents, did not apply at the date that Victor made his application (T3, p 27 ‑ 32). 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 s 21(5) would usually be exercised where the applicant does not meet the policy guidelines. In making a decision whether to refuse or approve an application, the primary considerations that need to be taken into account are the legislative requirements, the best interests of the child and the policy guidelines …
…
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 applying individually in their own right would usually be approved… if they meet the following policy guidelines:
Øhold a permanent visa, including an adoption visa; and
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 requirements).
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. This matter was first listed for hearing in November 2010. However, the matter could not proceed because the applicant’s representatives discovered that there were errors in the witness statements prepared by Victor’s parents. I was informed that the interpreter who translated the statements was not properly accredited. The matter was adjourned to allow the applicant’s representatives to organise the translation of the witness statements from a properly accredited interpreter.
Rosineide Martins de Oliveria
8. Mrs de Oliveria is Victor’s mother and is aged 31. She gave evidence in these proceedings with the assistance of a properly accredited interpreter. She also prepared a statement dated 11 May 2011 (Exhibit A1).
9. In her witness statement, Mrs de Oliveria records that Victor applied for Australian citizenship because he belongs in Australia. He has many friends in Australia and an aunt and uncle that he adores and who he refers to as his second mum and dad. She does not believe that Victor remembers much of Brazil and if he is forced to return, he would not have family support of the quality he has in Australia. Mrs de Oliveira stated that it is in Victor’s best interests to remain in Australia because he will have no future in Brazil. Victor’s aunt, who is Mrs de Oliveria’s sister, has also provided her with a lot of emotional support.
10. In evidence, Mrs de Oliveria said she completed secondary education but has no tertiary qualifications. She worked in a supermarket before marriage and subsequently operated a hot dog stall with her husband on a street in Ariquemes, in Rondonia, in the North West of Brazil. She said Ariquemes is a town of approximately 100,000 people.
11. Mrs de Oliveria said that her elderly parents, who are retired, and her two brothers, live at Vale do Paraiso being a town some distance from Ariquemes. She said neither of her parents nor her brothers would be able to provide accommodation or financial assistance. She said she would be able to visit her parents, who would provide emotional support. In Australia she speaks with them monthly by telephone.
12. Mrs de Oliveria said that she and her husband speak Portuguese at home. She said Victor does understand some of the Portuguese language but is unable to read or write it. She said he predominantly speaks English. She attempts to speak English. On occasions where Victor does not understand her spoken Portuguese and she is unable to explain in English, she telephones her sister who also lives in Sydney and asks her to communicate with Victor. Mrs de Oliveria said that she relies on the advice given by other persons in relation to Victor’s ability to speak English.
13. Victor has recently changed schools. He was previously enrolled at the Athena School (a private school) and has recently enrolled in the Lewisham Public School. Mrs de Oliveria said that the change in schools was an attempt to reduce their expenses. Victor is doing well in his new school and he enjoys the different environment. He has acquired new friends.
14. In cross-examination, Mrs de Oliveria said that if she, her husband and Victor return to Brazil, she would lose the very close relationship that she presently has with her sister in Sydney. She said that she speaks with her sister daily by telephone and meets with her on a regular basis. She agreed that she could continue to communicate with her sister by telephone from Brazil. However, her sister would have to telephone her because international telephone calls from Brazil would be too expensive. She said her sister, who is seven years older, is like a mother to her. She said Victor told her that if he returns to Brazil, he would want his aunt and uncle to return with him.
Mario Morais de Vasconcelos
15. Mr de Vasconcelos, Victor’s father, prepared a witness statement dated 11 May 2011 (Exhibit A5). He also gave evidence with the assistance of a properly accredited Brazilian-Portuguese interpreter.
16. In evidence, Mr de Vasconcelos corrected his witness statement to record that Victor now attends the Lewisham Public School. He said that he and his wife had decided that Victor would return to Brazil with them if they are compelled to leave Australia, irrespective of the outcome of this review. In all other respects, he adopted the contents of his witness statement.
17. Mr de Vasconcelos said that he is aged 31. When he completed the equivalent of Year 11 in secondary school in Brazil, he could not find employment and was ashamed to sell on the street like other members of his family. He was unemployed for some time and eventually obtained work in a laboratory on referral from a friend. The work required him to collect soil samples in preparation for road construction. When he and Mrs de Oliveria married in 2003, his salary was insufficient to sustain them and they commenced self-employment operating a hot dog stand on a street in Ariquemes.
18. Mr de Vasconcelos said he was abandoned by his mother after his parents separated when he was about six years old. He was left with one of his mother’s friends, who used him as her servant in her house for about 12 months. After his father learnt that he had been abandoned, he found him and Mr de Vasconcelos lived with his father and an aunt for about three years. Later he lived with his father and his grandmother. His father lives in Brazil and is employed as a waiter. He also operates a hot dog stand. His father has remarried and has a child, who is the step‑ brother of Mr de Vasconcelos.
19. Mr de Vasconcelos also has two sisters. One sister is separated and the other is a widow. They are both younger than him and are both self-employed. One operates a hot dog stand and the other sells clothing on the street. He said neither his father nor his sisters would be able to provide them with any financial assistance or accommodation should they return to Brazil. If he, his wife and Victor return to Brazil, he expected that they would live in Vale do Paraiso where his wife’s parents live and which is approximately 230km from Ariquemes where his father and sisters currently live.
20. Mr de Vasconcelos said that Victor recently changed schools because he and his wife were unable to meet the cost of fees at the Athena School. He said the Lewisham Public School does not charge fees. He said the school is located approximately two minutes by car from their home. Although there is another public school at Dulwich Hill, which is also a short distance from their home, they chose Lewisham because Victor knows other children who attend that school and live nearby. He said Victor had settled well into the school, he is not having difficulties and he has made new friends.
21. Mr de Vasconcelos said Victor would be disadvantaged in Brazil because he does not read or write the Portuguese language. He does understand some Portuguese words and is able to communicate orally. He described the quality of Victor’s Portuguese as being the equivalent of a kid of four or five years. He thought Victor would be enrolled in a lower class in Brazil and therefore, would be disadvantaged because he is presently in Grade 3 at the Lewisham Public School. He said if a child has had one year of preschool, primary schooling in Brazil commences at the age of six, otherwise primary school starts at the age of seven. He thought in those circumstances, Victor would be placed in the first grade. Whilst acknowledging that Victor did have the ability to speak some Portuguese words, he said some of them don’t make sense. Mr de Vasconcelos, who is presently employed as a cement renderer, said he speaks Portuguese at work (because his boss is Portuguese) and he speaks bad English with other workers.
22. Mr de Vasconcelos said Victor has no interest in travelling to Brazil. On occasions when it has been discussed, Victor thought they would be on holidays and that he would want his aunt and uncle to travel with him. He said he and his wife had not spoken to Victor about the possibility of living in Brazil because they did not want to worry him. However, he did speak to Victor alone after the first day of the hearing of this review. He told Victor that the Minister might decide he could adapt to a new school in Brazil because he had adapted to a new school in Australia. He also told Victor that the Government might not give him the passport that he (Victor) had been hoping to obtain. He said Victor became very frightened and thought that he had done something wrong. He said to Mr de Vasconcelos that he wanted to stay in Australia, he likes it here and he regarded Australia as his country.
23. Mr de Vasconcelos said he reassured Victor that if he and his wife have to return to Brazil, because they are his parents and they do love him, they would want him to return with them. He said Victor then became quiet. He did not tell Victor that they could apply to return to Australia should they return to Brazil. Whilst giving this evidence, Mr de Vasconcelos became visibly upset.
24. Mr de Vasconcelos said he arranged to renew the Brazilian passports which had previously been issued to himself, his wife and Victor. He said he renewed Victor’s passport because it was his only proof of identity and it was necessary to arrange enrolment in the Lewisham Public School. He also remembered that it was a condition of the Bridging Visas, which had been issued by the Minister, that passports of all family members remained current.
25. Mr de Vasconcelos said he and his wife lived in a rented home in Ariquemes before they moved to Australia. They paid the rent from income earned from their self‑employment. He believed that rental accommodation would be available in Ariquemes should they return to Brazil. He did not know how he could meet the cost of rent – in the absence of employment – because he understood there was no unemployment type benefit available in Brazil.
26. Mr de Vasconcelos said that despite his qualifications and experience as a cement renderer in Australia, he would not be able to obtain work in the building industry in Brazil. He said persons employed in that industry have multiple trade qualifications and are expected to undertake the work at all stages of the construction process, including bricklaying, plumbing, electrical work and roof installation. In Brazil, persons generally learn those trades from on the job experience which usually commences at the age of 12 when young boys attend worksites with their fathers. He said his only qualification as a cement renderer would not attract an employer in the building and construction industry. He has no other qualifications.
Rosilda Martins de Oliveria
27. Ms de Oliveria is the sister of Victor’s mother. She prepared a witness statement in support of the application in 2009 (Exhibit A6). She was not required for cross‑examination and was not called by Victor’s barrister. Her statement is reproduced as follows:
I, Rosilda Martins de Oliveria of [Address Deleted] New South Wales, wish to state as follows;
1. I am the aunt of Victor Oliveria Morais De Vasconcelos (“Victor”). Victor’s mother is my sister. I wish to provide the following information in support of his application for conferral of Australian Citizenship.
2. My partner of 10 years and I live in [deleted], which is about fifteen kilometres from Victor’s home in [deleted]. We see Victor almost every weekend.
3. My husband and I do not have any children of our own. Because of this, we look upon Victor as a son and he holds a very special place in our hearts. Victor has a wonderful relationship with my husband, Brett.
4. Victor attends school in Australia and he tells us about all the things he does there. I know that he enjoys school and it is wonderful to see his confidence growing as he forms new friendship groups and develops new skills. Victor is very much part of his school community.
5. Victor also enjoys his swimming lessons and he often goes swimming with my husband in the warmer months.
6. I know that Victor will suffer hardship if he is not allowed to become an Australian citizen because Victor doesn’t have any family in Brazil who can support him the way that we can, and if he isn’t an Australian citizen he will be forced to leave the country. I am very worried for his future if he is not granted Australian citizenship.
7. Victor is only young, but he understands that he is a part of something here. He knows that he is a part of a community – with his classmates, his friends and his family in Australia. I worry that he will be taken away from all of this and he won’t understand why. I worry that this will harm his development.
8. I promise that I will take care of Victor should his parents have to leave Australia and apply to come back on different visas. My sister knows how much my husband and I love Victor and we are willing and able to care for him as long as is needed.
…
28. The content of the last paragraph no longer applies because Mr de Vasconcelos said during the hearing that in the event that they are compelled to return to Brazil, Victor will return with him and his wife, irrespective of the outcome of this review.
brett byrnes
29. Mr Byrnes is the de facto partner of Rosilda de Oliveria. He prepared a statement dated 17 November 2008 (T4, p 55). He also prepared a statement in 2009 (Exhibit A7).
30. Mr Byrnes supports Victor’s application for Australian citizenship and believes that Victor’s interests will be best served in Australia where he has the love and support of family. His statement is written in glowing language and those who read it would be left in no doubt that he has a very close association and affection towards Victor. He refers to the social and sporting activities he has undertaken with Victor and in evidence Mr Byrnes said that he regards Victor as the son [he] never had.
31. Mr Byrnes recorded that he and his partner had given financial support to Victor’s parents and intended to continue to do so. In evidence he said that after he prepared his statement, he lost his full-time employment and has become a self‑employed contractor in the construction industry. Due to the intermittent nature of his employment and his partner’s unemployment, they are now limited in the amount of financial assistance they can offer Victor and his parents.
32. Mr Byrnes said Victor he did not speak English when he first met him but now he speaks it well. He said Victor’s Portuguese language is not very good and had been told by his partner, Ms de Oliveria of imprecision when he speaks that language. In cross-examination, he said that Victor speaks a version of Portuguese which he described as baby talk.
33. In cross-examination, Mr Byrnes was asked about Victor’s family and specifically, his cousins. He said Victor has one cousin living in Australia which is Mr Byrnes’ nephew and thought that Victor had four cousins living in Brazil.
EVIDENCE OF PSYCHOLOGISTS
Dr Elizabeth Seeley-Wait
34. Dr Seeley-Wait is a clinical psychologist in Sydney, specialising in child psychology. She interviewed and assessed Victor on 7 October 2009 and 27 October 2010. Each interview was for 120 minutes. Following each assessment, Dr Seeley-Wait also interviewed Victor’s school teachers by telephone for 30 minutes. She provided a report arising out of both consultations and interviews (Exhibit A2). She also interviewed Victor’s parents in February 2011 over a two hour period and prepared a report (Exhibit A3).
35. In evidence, Dr Seeley-Wait said that it was important for her to speak with the teachers of the child she was assessing. She said children spend a great deal of time away from the home, in a school environment and assessment by teachers offers another opinion of the ability of a child to function. She regarded the information from the teachers as important because it permits her to comprehend the behaviour, coping strategies and emotional health of a child. She gave weight to the opinions that they expressed, especially because they knew Victor well. However, she did not adopt the opinions expressed by the teachers as her own but rather added those opinions to the impressions that she formed when ultimately expressing her opinion and diagnosis.
36. Dr Seeley-Wait regarded Victor as a highly sensitive young boy who had difficulty adjusting to change. She was concerned that he would suffer by returning to Brazil, especially because he did not want to leave Australia. She thought any involuntary departure would adversely affect him and would also be regarded by him as harsh. As a consequence, Victor was likely to be exposed to a degree of stress.
37. Having interviewed Victor on two occasions within a 12‑month period, she thought Victor did not have a wide range of coping strategies. She observed that he struggles when confronted with issues that he regards as difficult and frequently gives up. She said her observations were also confirmed by his parents and his teachers. She thought any decision causing Victor to leave would be perceived by him as a trauma which is defined as an uncontrollable and overwhelming experience. Additionally, she thought his parents would have an inability to cope with being forced to leave Australia which, of itself, would also cause Victor to suffer emotional hardship (Exhibit A2, p 9).
38. Dr Seeley-Wait reported that Victor tends to pick-up when other persons are sad and she queried whether one of his parents suffered from depression (Exhibit A2, p 4). (It was later learnt that Mrs de Oliveria had previously suffered depression). Dr Seeley-Wait observed that Victor presented, stereotypically, as a child who had been cared for by a depressed parent in infancy with high sensitivity, anxiety, mood lability and insecurity. Those opinions were expanded (at page 9) where she reported that the wellbeing of a child is influenced by events that affect parents. In her experience, children with emotional difficulties reflect the difficulties suffered by their parents.
39. Dr Seeley-Wait said she assessed each of Victor’s parents individually in order to form an opinion of the consequences to them should they return involuntarily to Brazil. She found obtaining history from Mrs de Oliveria was a challenge. She observed her to be guarded and was unwilling to discuss her personal history (Exhibit A3, p 2). She said Mr de Vasconcelos was more forthcoming and was prepared to volunteer information. She thought that their marriage was struggling and it appeared to her that they had been arguing. She thought their relationship was strained by the uncertainty of their immigration status (Exhibit A3, p 4).
40. In cross-examination, Dr Seeley-Wait said she regarded Victor as being an engaging young boy who was likeable and well behaved. She found it easy to develop a rapport with him. She learnt that Victor recently changed schools and thought that he may have had difficulty adjusting. She said that Victor’s ability to successfully adjust to a new school in the middle of a school year, especially at his age, might suggest that he is not low in confidence and he feels more secure. She noted that he was more confident in 2010 when compared to the first assessment in 2009. In her experience, children of his age tend to grow out of difficulty adjusting to differing circumstances as they settle into a routine.
41. Dr Seeley-Wait adopted a structured interview technique with Victor. Having regard to the clinical criteria found in DSM-IV-TR, she reported that Victor displayed some symptoms of generalised anxiety disorder which she thought could resolve over time. She said that he demonstrated elevated anxiety and found it difficult to stop worrying. She noted that Victor was anxious with her when she engaged him in play, especially if he was challenged. She noted that he would back off and would give up.
42. Dr Seeley-Wait was familiar with a report prepared by Dr Janina Szyndler who assessed Victor and his parents on behalf of the Minister (Exhibit R2). She agreed with her conclusions that Victor was a happy and pleasant young boy who was developing well. She disagreed with Dr Szyndler’s opinion that he did not have any behavioural or emotional problems, was not vulnerable to developing mental health problems and did not presently warrant a mental health diagnosis. Nonetheless, she agreed that Victor is close to and has a strong attachment to his parents, he has difficulty separating from them, any separation could have an adverse effect on him and staying with them would be a source of security and protection for him. Dr Seeley-Wait said he was at risk by moving to Brazil but it depended on the totality of those circumstances and it was important in her view, to examine the quality of relationships that he develops in Brazil, his educational opportunities (especially at his age) and the income and employment prospects of his parents. She said she did not discuss with Victor how he would feel about moving back to Brazil because she and his parents were concerned about raising that issue with him.
43. Dr Seeley-Wait conceded that it was possible that Victor could return to Brazil without suffering trauma (as defined by her). However, she expected that his parents would react negatively to that experience, they would struggle financially and emotionally and the experience would be traumatic for them. It followed that Victor was likely to be influenced by his parents’ emotions and consequently, he would suffer trauma. Conversely, if his parents were able to cope and presented the move to Brazil as being a positive experience, it was likely that Victor would adjust over a period of time. However, Dr Seeley-Wait was pessimistic that an outcome of that type would be achieved.
44. Dr Seeley-Wait agreed that the present emotional state of Victor’s parents is influenced by the uncertainty of their immigration status. She agreed that should they return to Brazil, the uncertainty would no longer exist. Nonetheless, she feared that another set of uncertainties would emerge associated with having to find accommodation, employment, schooling and obtaining income.
Dr Janina Szyndler
45. Dr Szyndler is a clinical and developmental psychologist who assessed Victor and his parents at the request of the Minister. She prepared two reports dated 28 April 2010 (Exhibit R2) and 21 June 2011 (Exhibit R3). The first report focussed on her assessment of Victor. The second report focussed on her assessment of his parents.
46. Dr Szyndler said that her interview with Victor, alone, was for approximately 40 minutes. He was six years old at the time. She obtained information from him by playing, interpreting his drawings and chatting. She did not undertake a formal psychological assessment. Her report included references to information she obtained from his parents.
47. Dr Szyndler said it was not her practice routinely to consult with a child’s teachers. However, if there is a difference between the information obtained from the child and from the parents, she issues a questionnaire to the teachers. The questionnaire asks them to compare the child being assessed with other children in the school. She would not necessarily speak with teachers. She agreed that speaking with teachers is good practice but in her experience, it does not necessarily reveal information that cannot be obtained from the completion of her questionnaire.
48. Dr Szyndler said her assessment of Victor and the information she obtained from his parents did not raise concerns which would cause her to consult Victor’s teachers. Victor presented as a well behaved, healthy boy who was developing well and his presentation was consistent with the information provided by his parents. Therefore, she had no concerns about his behaviour or his progress at school. She regarded him as being settled. Having learnt that Victor had recently changed schools, she was satisfied that he had the capacity to adapt to change.
49. Dr Szyndler was also surprised that he had been placed in Year 3 at the Lewisham Public School. Victor’s birthday is in July and having regard to enrolment practices in New South Wales schools, she expected that he would have been placed in Year 2. Dr Szyndler assumed that the Lewisham Public School assessed him as being capable of entering Year 3.
50. Dr Szyndler read the reports completed by Dr Seeley-Wait. She did not agree that Victor was a vulnerable child and it was unclear to her, having read those reports, why that opinion was expressed. She agreed that the family was presently under stress because they did not want to leave Australia and were concerned about what would confront them when they returned to Brazil. She also disagreed with the conclusions expressed by Dr Seeley-Wait that Victor would suffer hardship associated with coping with the Portuguese language if he were to return to Brazil.
51. In cross-examination, she said the first language of Victor’s parents is Portuguese and it was her impression that he was fluent in that language, although she acknowledged that his command of it would be less than a child in Brazil of equivalent age. She expected that because of his background and his age, he would cope with the Portuguese language if he returned to Brazil. Similarly, she was not concerned that his reading and writing ability in Portuguese was almost absent because to her knowledge, primary schooling in Brazil commences at the age of seven. Therefore, she did not believe that Victor would suffer significant disadvantage if he commenced school in Brazil in the next year or two (Exhibit R2 at [22-23]).
52. Dr Szyndler was aware of opinions expressed by Dr Seeley-Wait concerning the emotional health of Victor and his parents. However, on direct questioning of Victor’s parents, she was not informed of any significant family history of physical or mental health problems (Exhibit R2 at [14]). Dr Szyndler said she asked questions to elicit that type of information because in her experience, physical or mental health problems of other family members could impact a child’s vulnerability. In the absence of information indicative of any significant physical or mental health problems in the family, she is satisfied that Victor is not at risk of developing mental health problems under normal circumstances (Exhibit at [25]).
53. Dr Szyndler’s reference to Victor not being vulnerable under normal circumstances was intended to refer to Victor as a child who is living with his parents, attends schools and has good relationships with other children. He is also in good health and progressing well. In those circumstances, she was satisfied that he was not vulnerable. She was not aware that he had been subject to bullying at the Athena School. Indeed, she was informed that he had many friends at that school and he spoke positively about the school. She did not obtain any history of bullying from his parents and she was satisfied that if it had been a problem for Victor, it would have been identified by his teachers and reported to his parents.
54. In the context of moving to Brazil, Dr Szyndler acknowledged that any adverse impact on his parents, would in turn impact Victor. She acknowledged that moving from a school in Australia to a school in Brazil would be distinctly different from moving schools within Sydney. Whilst acknowledging that Victor has a close relationship with his aunt in Sydney, she denied that relationship would be lost. She said it would be changed. Dr Szyndler also acknowledged that whilst Victor’s mother has family in Brazil with whom there would be an association, the quality of his life would be different to the quality that he now enjoys.
55. Dr Szyndler acknowledged that Victor’s parents presently suffer stress associated with these proceedings and with their immigration status. She said that the stress is attributed largely to the uncertainty of their future if they have to return to Brazil. However, when they return to Brazil, their present uncertainties will be replaced by other uncertainties of where and how they will live (Exhibit R3 at [31]).
56. When Dr Szyndler was advised that Victor’s mother had previously suffered from depression, she thought that she was at risk of suffering further episodes of depression, which could affect Victor.
COUNTRY INFORMATION AND DATA
57. The Minister lodged a bundle of documents which contained information about Brazil (Exhibit R4). 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
58. 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 R4, p 6-7).
59. 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
60. The information prepared by Bloomberg provides that in 2010, the Brazilian economy was expanding (Exhibit R4, p 10-12). 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 Guardian weekly newspaper on 10 May 2011 reported a shortage of skilled labour in the building, mining and energy industries (Exhibit R5). 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. Reuters reported on 20 June 2011 that the bench mark interest rate was11.25 per cent in January 2011 and 12.25 per cent in June 2011 (Exhibit R5).
61. 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. In June 2011, Moody’s rated Brazil as Baa2 (Exhibit R5). The global financial crisis had minimal impact on Brazil. Foreign investment in Brazil in 2010 was forecast to be $US45 billion (Exhibit R4, p16).
62. Brazil has well developed industries in the agricultural, mining, manufacturing and service sectors.
Government and Political Overview
63. 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.
64. 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 R4, p 15-16).
65. 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
66. 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.
67. 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 R4, p 32).
Crime/Civil Unrest
68. 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 R4, p 21-22).
Housing and Social Security
69. 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
70. 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.
71. 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.
72. 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.
73. Section 21(5) of the Act as it applies to Victor 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 Victor made his application, it is a feature in the ACIs. I will return to that issue later.
74. 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.
75. 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.
76. Victor does not hold a permanent visa and he is living with a responsible parent who is not an Australian citizen. If he can demonstrate that he would suffer significant hardship or disadvantage in the event that his application is refused, his 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.
77. 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.
78. If an applicant does not meet the policy guidelines ‑ and Victor 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.
79. 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.
80. 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).
81. 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.
82.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.
83. 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.
84. In the policy, the word unusual is found within the composite phrase the unusual nature of those circumstances. Consideration must be given to Victor’s full circumstances, including his best interests, as a primary consideration, in exercising the residual discretion conferred by the ACIs.
CONCLUSION
85. Victor is an eight year old infant who was born in Brazil. He resides with his parents who are not permanent residents. Mr de Vasconcelos and Mrs de Oliveria have been granted Bridging E visas which allow them to remain in Australia until the determination of this application. Irrespective of the outcome of this application, they may be compelled to return to Brazil. They are aware of that possibility and the evidence of the psychologists indicates that they suffer anxiety associated with the uncertainty of their immigration status in Australia.
86. The correct or preferable decision which I am required to make on the material before me must focus on Victor and whether he should be conferred with Australian citizenship. As indicated earlier, he cannot meet the policy guidelines. There is a residuary discretion which compels consideration of his full circumstances, including his best interests, to determine whether the application warrants approval because of the unusual nature of those circumstances.
87. 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.
88. 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 family environment and by permitting the child to enjoy continuing opportunities of education and a high standard of health.
89. Victor was born in Brazil and arrived in Australia when he was approximately two and a half years old. He has never returned to Brazil. All his schooling to date has been completed in Australia. He has friends in his neighbourhood and at his school. However, he is a citizen of Brazil, he arrived in Australia on a Brazilian passport which has recently been renewed. I understand that his parents were obliged to renew their passports and Victor’s passport as a condition of obtaining the Bridging E visa. I do not infer that renewing those passports demonstrates a connection or loyalty to Brazil.
90. Having considered all the evidence in these proceedings, for reasons which follow, I am unable to find that there is anything unusual about the circumstances in this case to warrant approval of the application.
91. I am satisfied that Victor’s best interests will be served by the support and care of his parents which I am satisfied will continue irrespective of where he resides. Those best interests extend to the maintenance of his wellbeing and security, and his membership of and presence in a family which provides him with an atmosphere of happiness, love and understanding. His interests as contemplated by the Convention have been served in Australia and I have every reason to believe that they will continue to be served in Brazil. Like Australia, Brazil is a signatory to the Convention and ratified it in 1990. Brazil therefore, has an obligation to ensure the protection and wellbeing of its children.
92. I accept that moving to Brazil will cause Victor some difficulty and will require adjustment. I am not satisfied that he will be disadvantaged in his education. He has completed grade prep and the first one and a half years of education in Australia. At the age of eight, he will be eligible to be enrolled in public schooling immediately. Whilst he does have a limited command of the Portuguese language, it is not foreign to him. Although he does not read or write Portuguese, it is unlikely that children of his age will be significantly further advanced. I am satisfied that Victor will rapidly become fluent in the language as he integrates because Portuguese is the first language in Brazil. I am also satisfied that his command of the English language will be to his advantage.
93. Victor will lose the fraternity of his current friends. However, the evidence points to him being a person who readily acquires new friends. It was learnt that he recently moved to a new school and has adjusted well to the change. It is inevitable that his transition into a new school in another country will be challenging, particularly because he is not fluent in Portuguese. However, he does speak Portuguese and the language is not completely foreign to him. During the interview with Dr Szyndler, his mother described Victor as bilingual. Dr Seely-Wait was of the opinion that in the intervening period of 12 months between her interviews with Victor, there was an increase in his confidence and security which I am satisfied will assist him to overcome the challenges he will encounter. Victor will also face some adjustment outside of school. Dr Seely-Wait and Dr Szyndler were satisfied that Victor had acquired some coping skills. Both thought that the experience of moving to Brazil would require an adjustment that he will find challenging. They agreed that at his age, unlike an older child who has a sense of identity and some degree of independence, Victor is more likely to adapt.
94. There is no doubting that Mr de Vasconcelos and Mrs de Oliveria share anxieties about their current immigration status in Australia and the prospect of having to return to Brazil. Upon their return, they will also face the challenge of adjusting. However, Brazil is a country with which they are familiar and where they each spent the first 24 years of their lives. Any unhappiness on the part of Victor or difficulty in him adjusting could be ameliorated by them adopting a positive attitude and responding to his emotional needs.
95. It would appear that Mr de Vasconcelos and Mrs de Oliveria have limited work skills and may find employment difficult to obtain. However, the country data and information provided by the Minister points to a buoyant economy with a high rate of employment. The data describes labour shortages in the construction, mining and energy industries.
96. I acknowledge that at least in the short term, there may be some difficulty securing employment but the prospect of becoming employed is not so remote that it causes me concern. The country information also provides that English speaking persons are advantaged when obtaining employment. Mr de Vasconcelos does speak some English. Both of Victor’s parents are relatively young and there is nothing to suggest that potential employers in Brazil will be reluctant to engage them.
97. Prior to moving to Australia, Mr de Vasconcelos and Mrs de Oliveria lived in rented accommodation. According to his evidence, rental accommodation continues to be available in Brazil. I accept that their friends and family in Brazil may not be in a position to provide accommodation to them. However, I can foresee no reason why family and friends in Brazil could not arrange rental accommodation for them, before they return.
98. The country data describes an expansion in medical and health care facilities throughout Brazil in recent years. As a citizen of Brazil, Victor will be entitled to health care should it be needed, as will his parents. Unfortunately, Mrs de Oliveria has a history of depression. There is no evidence that points to the absence of facilities for the treatment of depression in Brazil. On the contrary, the proliferation of medical facilities throughout Brazil suggests that treatment, if needed for depression, will readily be available. The proliferation of medical facilities throughout Brazil – the public health system is described as offering simple outpatient care to organ transplants – suggests that treatment, if needed for depression, will be readily available (Exhibit R4, p 32). Indeed, there is no evidence that Mrs de Oliveria was treated for that illness in Australia. I anticipate that upon being reunited with their family in Brazil, Victor and his parents will receive emotional support to assist in their transition. This support is also likely to reduce the risk of Mrs de Oliveria’s depression reoccurring or being exacerbated.
99. Brazil is subject to high levels of crime. However, it is not known whether crime in Ariquemes or Vale do Paraiso or throughout Rondonia generally, is as prolific as in the major towns. Victor, like every other Brazilian citizen, would not be immune from crime. However at his age, it is likely that he would be within the care and supervision of his parents or his teachers. The risk, therefore, of him being a victim of criminal activity would be considerably reduced.
100. On balance, I acknowledge that moving to Brazil will cause Victor some unhappiness. He has many friends in Australia including an aunt and an uncle to whom he is apparently devoted. Despite the uncertainties presently experienced by his parents and the uncertainties they will confront upon returning to Brazil, it is anticipated that if they adopt a positive attitude, Victor will feel more secure. His relatively young age suggests that he will readily adapt. I cannot find that his circumstances are of an unusual nature to warrant conferral of Australian citizenship, nor can I find that his best interests as contemplated by the Convention will not be served in Brazil.
DECISION
101. For all of the above reasons, I am satisfied that the decision to refuse a grant of citizenship by conferral should be affirmed.
I certify that the one hundred and one [101] 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 27-28 June 2011
Date of Decision 1 August 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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