FAGUNDES and MINISTER FOR IMMIGRATION AND CITIZENSHIP
[2011] AATA 493
•15 July 2011
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2011] AATA 493
ADMINISTRATIVE APPEALS TRIBUNAL )
) No 2009/0344
GENERAL ADMINISTRATIVE DIVISION ) Re RACHEL BALTAR FAGUNDES 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 13 January 2009. John Handley
Senior Member
CITIZENSHIP – by conferral – applicant under the age of 18 – born in Australia – lived all of her life in Australia ‑ 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. The applicant, Rachel, is an infant born in Australia on 17 January 2005. She applies to review a decision made by a delegate of the Minister for Immigration and Citizenship (the Minister) on 13 January 2009 to refuse her application for citizenship of Australia by conferral.
2. Rachel’s parents are citizens of Brazil who arrived in Australia on 2 June 2003 holding a Subclass 676 Tourist visa which was valid for one month. They remained unlawfully in Australia until 17 November 2008. On 17 November 2008 they were each granted a Bridging E visa which has permitted them to remain lawfully in Australia pending the determination of this application.
3. The Rachel is not a citizen of Australia. Despite having been born here, she does not satisfy the qualifying provisions of s 12(1) of the Australian Citizenship Act 2007 in force at the date she applied for citizenship (the Act).Her parents are citizens of Brazil and Rachel holds a Brazilian passport.
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 Rachel 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 Rachel’s parents and her aunt, Ms Ribeiro (each with the assistance of a Portuguese interpreter); Dianne O’Malley, a consultant psychologist who was engaged by Rachel’s solicitors and Dr Janina Szyndler, a clinical psychologist who was engaged on behalf of the Minister. Ms O’Malley and Dr Szyndler provided reports which were tendered into evidence (Exhibits A4 and R1). A number of other documents were referred to and will be described later in these reasons.
Vivian Fagundes
8. Mrs Fagundes is Rachel’s mother. She gave evidence with the assistance of a properly accredited interpreter. She prepared a statement on 30 October 2009 which was translated to her by a properly accredited interpreter (Exhibit A1).
9. In her statement, Mrs Fagundes confirmed that Rachel was born in Australia and has remained here since birth. She expressed her concern about the impact on Rachel if her application is not granted and she is required to return to Brazil. Rachel’s ability to communicate in Portuguese is limited and her mother fears that she will be isolated, particularly at school. She also expressed her concern that Rachel will lose the association she presently has in her local community which comprises her friends, her school and her church.
10. Mrs Fagundes recorded that Rachel has never met any of her cousins, aunts or uncles who live in Brazil, except an uncle who has recently returned to Brazil and is about to return to Australia. In evidence, she said her sister, who lives in Ipatinga, has a seven year old son who Rachel has spoken with by telephone. (Rachel does know her aunt, Ms Ribeiro who lived in Australia for some years, obtained trade qualifications and has recently returned to Brazil). In her statement, Mrs Fagundes concluded that Rachel regards Australia as her home and identifies herself as an Australian citizen.
11. In evidence, Mrs Fagundes said Rachel speaks the English language outside the home. She regards English as Rachel’s first language even though the first language she learnt to speak was Portuguese (Transcript, p 96). She said they communicate with each other inside the home in both Portuguese and English (Transcript, p 94). Mrs Fagundes regarded Rachel’s knowledge and command of the Portuguese language as poor (Transcript, p 97).
12. Mrs Fagundes understood that irrespective of the outcome of this review, she and her husband may be required to return to Brazil. She said she did not know where they would live or whether she would be able to obtain employment. She was previously employed in Brazil as a secretary (Transcript, p 100).
13. The family moved to Australia from Ipatinga, a town located within the state of Minas Gerais. Mrs Fagundes’ parents and one sister continue to live in Ipatinga.
14. At the date of hearing Mrs Fagundes was pregnant and a second child was due in April 2011. Prior to delivering these reasons, Rachel’s solicitors advised the Tribunal that Mrs Fagundes had given birth to a daughter on 30 March 2011.
15. In cross‑examination, Mrs Fagundes said that Rachel had completed one year of kindergarten and was currently enrolled in grade prep. She agreed with the contents of the reports from the Bethania Lutheran School which recorded that Rachel was progressing well (Exhibit A2). She also agreed that Rachel had adjusted well to moving from kindergarten to prep. Mrs Fagundes said she was aware that the public school system in Brazil was available without cost and private schools which charged tuition fees (Transcript, p 99).
16. Mrs Fagundes did not know whether she would be able to obtain work as a secretary if she returned to Brazil. She said that she had not discussed with Rachel the possibility of having to move to Brazil to live. Mrs Fagundes confirmed that in the event that she and her husband were required to return to Brazil, they would not leave Rachel in Australia.
Ligia Ribeiro
17. Ms Ribeiro, Rachel’s aunt, lives in Minas Gerais in Brazil. Her husband is the brother of Rachel’s father. She gave her evidence by telephone.
18. Ms Ribeiro prepared a statement when she was living in Australia (Exhibit A3). She lived here for six years as a student and qualified as a chef. She returned to Brazil when she obtained her qualifications and has not been able to secure employment. She said she has not been able to adapt back to Brazil (Transcript, p 107). She said that it was very hard to get a job, especially because I spent so many years abroad. She said her husband has not been able to obtain employment (Transcript, p 108-109).
19. Ms Ribeiro said she has known Rachel since her birth. She is aware that Rachel participates in her local community through her swimming, tennis, dance lessons and school. She recorded in her statement that Rachel had many friends and family members in Australia (the identity of those family members is unknown having regard to the evidence of Mrs Fagundes). In her statement, Ms Ribeiro recorded that English is the only language that Rachel knows. She expressed concerned about Rachel’s wellbeing because Brazil is a very dangerous place and her husband’s family would not be able to support Rachel should she return with her parents (Exhibit A3).
20. Ms Ribeiro has made an application to return to Australia and was waiting on the outcome of that application when she gave her evidence.
Robert De Andrade Fagundes
21. Mr Fagundes is Rachel’s father. He did not complete a witness statement. However, he did co-sign the statement prepared by Mrs Fagundes (Exhibit A1).
22. In evidence, Mr Fagundes said that he and his wife came to Australia in 2003 having previously worked in New Zealand for about 18 months. Both he and his wife held various positions in restaurant kitchens, cleaning or washing dishes.
23. In Brazil, Mr Fagundes was employed as a security inspector on worksites. In Australia he has worked as a solid plasterer and cement renderer. He said he would not be able to obtain work as a safety inspector in Brazil because work practices and safety standards have changed and he has been away from the industry for many years. He was also confident that he would not obtain work as a solid plasterer or cement renderer in construction because the practice in Brazil was to have persons engaged in all construction trades. He said persons with only one skill are not engaged (Transcript, p 125-125).
24. In cross-examination, Mr Fagundes said that he had not given much thought to where he would live or the type of work he would undertake should he return to Brazil. He hoped to be able to remain in Australia. He was aware that Brazil had a growing economy with a reducing rate of unemployment but was not confident of being able to secure work because Brazil had a population of 250 million. He said that Australia had a lot of opportunities (Transcript, p 128).
25. Mr Fagundes said his family and his wife’s family all live in Minas Gerais. He said that if he could live with his family in Brazil, it would only be for a very short time because his parents live in a small house and they care for his grandmother who lives in the same house (Transcript, p 134).
26. Mr Fagundes agreed that there was a large mining industry in Minas Gerais and a large mining company ‑ Vale ‑ which is regarded as the second largest mining company in the world. Mr Fagundes was aware that Vale was previously state owned and had recently become privatised. He was not aware that Vale recently announced an investment of the equivalent of one billion dollars and agreed that this might generate employment opportunities. However, he thought that potential employment would be confined to persons with mining experience and education. Mr Fagundes said he previously attempted to obtain employment with Vale and was unsuccessful. He was unsure whether Vale’s investment would stimulate the local economy and cause a need for housing construction (Transcript, p 130).
27. Mr Fagundes again emphasised that it would be unlikely that he would obtain employment in the construction industry because he has no qualifications beyond safety inspection or as a plasterer or concrete renderer. Additionally, in his experience, persons over the age of 28 have difficulty finding or maintaining employment because younger persons who earn lesser salaries are preferred. He is presently aged 37. Mr Fagundes said he has a number of friends and brothers in Brazil who are unemployed (Transcript, p 131).
28. Mr Fagundes does speak some English. However, in cross-examination he dismissed the suggestion that he might obtain work as an interpreter in the mining industry or in local restaurants or hotels. He referred to his sister-in-law, Ligia Ribeiro, who has been living in Brazil for 1 year and despite obtaining qualifications as a chef and completing various courses in hospitality, she has not been able to secure employment (Transcript, p 131).
29. Mr Fagundes has 2 brothers who lived in Australia and have now returned to Brazil. They are currently waiting on the outcome of their applications to return to Australia.
30. In re-examination, Mr Fagundes said that although he has worked as a kitchen hand in a bar in New Zealand, he does not believe he has sufficient experience to obtain employment in a large hotel or restaurant. He referred to Ligia Ribeiro as an example of a person who has relevant qualifications and unable to secure employment. He said most of the smaller restaurants in Brazil are managed by owners who undertake cooking, cleaning and washing dishes. Even if he was able to obtain employment in a smaller restaurant, the salary would not be sufficient to support his wife and two children (Transcript, p 131 and 135).
Giselle Silva De Castro
31. Ms De Castro, a family friend, prepared a statement (Exhibit A7). She was not required for cross‑examination and was not called to give evidence by Mr Gilbert.
32. Ms De Castro and her family migrated to Australia in February 2006 and have had a close association with Rachel and her family during that time. She said that she has observed Rachel grow and develop in Australia and was of the opinion that Rachel considers herself to be an Australian girl, just like her friends.
33. Ms De Castro also recorded that she has on occasions collected Rachel from school and has received comments from teachers that Rachel is well-behaved. She said that Rachel is polite, friendly and happy little girl who makes friends easily. Ms De Castro attends the same church as Rachel and has observed her many friends. She regards Rachel as having been absorbed into the Australian community.
EVIDENCE OF PSYCHOLOGISTS
Dianne O’Malley
34. Ms O’Malley is a psychologist and the proprietor of the business, YoungMinds Health and Development Network (YoungMinds) in Brisbane. YoungMinds was engaged by Rachel’s solicitors to assess her and her parents in 2009. Ms O’Malley engaged Kathy James, another psychologist for the assessment. Ms James assessed Rachel and her parents during an interview on 29 September 2009 and prepared a report dated 13 October 2009 (Exhibit A5). Ms James was unavailable to give evidence and is now employed elsewhere.
35. Ms O’Malley was asked to complete a further assessment of Rachel and her parents which was undertaken on 2 November 2010. She prepared a report dated 5 November 2010 (Exhibit A4). The second assessment was conducted in the presence of Michela Tomasel, an intern psychologist who also drafted the report. Ms O’Malley said she conferred with Ms Tomasel before and after the report was written. Ms O’Malley said she agreed with it and she signed it. Ms Tomasel and Ms O’Malley had access to the report of Ms James prior to assessing Rachel and her parents.
36. In her report, Ms O’Malley noted changes in the family’s circumstances since the initial assessment by Ms James. In the intervening period of 13 months, Mrs Fagundes was pregnant and Mr Fagundes had changed his employment; Mrs Fagundes had ceased employment as a residential cleaner; Rachel was about to complete grade pep; she had ceased dancing lessons and tennis training; she had commenced piano lessons and continued to enjoy swimming; her teachers had reported that Rachel’s literacy and personal development skills were of a high standard.
37. Ms O’Malley also reported that English is the primary language used by Rachel, although Portuguese is predominately spoken within the home. There was no extended family living in Australia and Mr Fagundes’ brothers had all returned to Brazil and were in the process of applying to return to Australia.
38. Ms O’Malley concluded that Rachel was well-adjusted and settled in Australia and that it was not an option for Rachel to be separated from her parents if they were to return to Brazil. If Rachel was required to move to Brazil with them, she would have significant adjustment to do to meet her social, emotional and academic needs (Transcript, p 113).
39. In cross‑examination, Ms O’Malley agreed that she did not make a fresh assessment of Rachel and her parents but rather relied on the factual information contained within the report prepared by Ms James. She updated it and then recorded her own opinions. Ms O’Malley adopted the report of Ms James and the conclusions that she had reached.
40. Ms O’Malley was referred to Ms James’ observations and conclusions under the subheadings Financial Hardship and Physical Disadvantage (Exhibit A5, p 2). Ms O’Malley agreed that she was relying entirely on the history that had been given to Ms James by Rachel’s parents, and had not checked whether the factual information upon which those opinions were based was truthful or accurate. For example, she agreed that she did not have any personal knowledge of the unemployment rate in Brazil, the standard of healthcare or the level of crime. Ms O’Malley agreed that it did not appear from the report of Ms James that she had any expertise in those areas, nor was it evident that she made enquiries of her own, as opposed to relying on the history and information given to her by Rachel’s parents.
41. Ms O’Malley agreed that should Rachel move to Brazil, one of the most important relationships for her would be with her parents. She agreed that it would be inevitable that current relationships with others would be lost. However, the relationship with her parents would act as a protective factor and assist to reduce any emotional distress or difficulties adjusting (Transcript, p 116-117).
42. Ms O’Malley agreed that Rachel was unlikely to have difficulty forming new relationships in Brazil because of her age and the nature of her personality. She noted that Ms James had predicted that the loss of current relationships would cause Rachel to experience overwhelming emotional distress and grief, however, Ms O’Malley said that it would be difficult to hold that opinion with any confidence. Whilst it was her experience that a child of Rachel’s age could be overwhelmed by such an adjustment, Rachel’s reaction to moving to Brazil would depend on the relationship with and comfort given by her parents and the environment where she was living (Transcript, p 118).
43. Ms O’Malley acknowledged that Rachel was able to speak some Portuguese and agreed that if she attended a primary school in Brazil, it was likely that she would improve her command of the language more rapidly than if she had no prior knowledge of it. Ms O’Malley could not identify any long-term disadvantage to Rachel’s education in Brazil. However, she noted that if primary school age in Brazil commenced at the age of seven, Rachel would be older when her schooling finished compared to the anticipated age of completion in Australia. Ms O’Malley agreed that she was not able to say with any confidence that Rachel would not be able to undertake secondary or tertiary education in Brazil (Transcript, p 119).
Dr Janina Szyndler
44. Dr Szyndler is a clinical psychologist who was engaged by the Minister to assess Rachel and her parents. She assessed them during an interview with them on 31 May 2010. Dr Szyndler provided a report dated 15 June 2010 (Exhibit R1).
45. Dr Szyndler was given a number of documents to consider prior to the assessment, being witness statements of Rachel’s mother, her aunt and Ms De Castro. The solicitors for the Minister also provided a covering letter which gave some factual background concerning Rachel’s circumstances in Australia. Specifically, Dr Szyndler was asked to give opinions in relation to three specific matters, namely:
1.What is the likely psychological impact on Rachel of returning to Brazil with her parents? In particular, would she be likely to develop a recognised mental illness under these circumstances?
2.What is the likely psychological impact on Rachel of being separated from her parents for a short period (ie three months) through to a long period (ie one year to indefinite)? In particular would she be likely to develop a recognised mental illness under these circumstances?
3.From a psychological perspective is it in Rachel’s best interests to:
(a)return to Brazil with her parents; or
(b)remain in Australia without her parents.
46. Mr Horan, acting on behalf of the Minister, did not examine Dr Szyndler. He relied on the contents of her report and made her available for cross-examination.
47. Dr Szyndler agreed that if Rachel moves to Brazil with her parents, the social and economic impact on her will depend on whether her parents can obtain employment and where they live. She acknowledged that Rachel was born in Australia, that Australian society and way of life is all that she knows and in the event that she moves to Brazil, it would require a significant adjustment. However, Dr Szyndler said that a child of her age is perhaps more adaptable to change and the most significant variable would be her parents position (Transcript, p 139).
48. Dr Szyndler thought that Rachel would be more adaptable because she does speak some Portuguese, she has some familiarity with Brazilian culture and she would not be disadvantaged academically. She thought that Rachel would benefit from protective factors namely her parents and other relatives. However, some of those relatives have previously lived in Australia and had applied to return. If that occurs, she would lose some of those protective factors (Transcript, p 139-140).
49. Dr Szyndler reported on her assessment of the likelihood Rachel will develop a recognised mental illness should she move to Brazil (Exhibit R1, at [35-38]). She said that Rachel’s parents had family members living in Brazil who may be able to support. Although there was a possibility that those family members would migrate to Australia, Dr Szyndler thought there was still some family support available to them. They wouldn’t be without a roof over their heads … (Transcript, p 141). In her report she concluded (at [38]):
I would not envisage that the family would be left destitute or without support but their quality of life in Brazil is likely to be significantly lower than the standard they have in Queensland. She may develop an adjustment disorder as a result of the move.
Dr Szyndler agreed that the family did not need to be destitute before Rachel could develop an adjustment disorder. However, a lower standard of living in Brazil could precipitate a stress upon the parents which may affect Rachel. Alternatively the worse their position, the more at risk you might expect a child to be (Transcript, p 142).
50. Dr Szyndler was not aware that Mrs Fagundes was expecting another child. She said that having a second child and having to move to Brazil will inevitably place additional stress on the family.
COUNTRY INFORMATION AND DATA
51. The Minister lodged a bundle of documents which contained information about Brazil (Exhibit R2). 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
52. 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 R2, p 6-7).
53. 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
54. The information prepared by Bloomberg provides that in 2010, the Brazilian economy was expanding (Exhibit R2, 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.
55. 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 R2, p 16).
56. Brazil has well developed industries in the agricultural, mining, manufacturing and service sectors.
Government and Political Overview
57. 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.
58. 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 R2, p 15-16).
59. 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
60. 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.
61. 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 R2, p 32).
Crime/Civil Unrest
62. 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 R2, p 21-22).
Housing and Social Security
63. 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
64. 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.
65. 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.
66. 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.
67. Section 21(5) of the Act as it applies to Rachel 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 Rachel made her application, it is a feature in the ACIs. I will return to that issue later.
68. 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.
69. 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.
70. Rachel 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.
71. 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.
72. If an applicant does not meet the policy guidelines ‑ and Rachel 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.
73. 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.
74. 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).
75. 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.
76. 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.
77. 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.
78. In the policy, the word unusual is found within the composite phrase the unusual nature of those circumstances. Consideration must be given to Rachel’s full circumstances, including her best interests, as a primary consideration, in exercising the residual discretion conferred by the ACIs.
CONCLUSION
79. Rachel is a six year old infant who was born in Australia. She is residing with her parents, neither of whom are permanent residents. Mr and Mrs Fagundes have been granted Bridging E visas which permit them to remain in Australia pending the determination of this application. They are both aware that regardless of the outcome of Rachel’s application, they may be compelled to return to Brazil.
80. Rachel’s application was made in her name with the consent of her father. I have no choice but to make this decision in the absence of her evidence which, could not be heard by reason of her age. My decision is based on the evidence of her parents, aunt and family friend, together with the evidence of the psychologists.
81. I am required to make the correct or preferable decision on the material before me. As indicated earlier, Rachel 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.
82. 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.
83. 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.
84. I acknowledge that Rachel was born in Australia and has lived all of her life here. She has never travelled to Brazil. She has completed pre-school and the first year of primary school in Australia. Her friends reside here and she has many interests within and outside her school. The evidence before the Tribunal indicates that she is an enthusiastic and intelligent child. I accept that Rachel has a very close connection with Australia, the country she was born in. However, she is a citizen of Brazil and has been issued with a Brazilian passport (T5, p 58).
85. Rachel’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). Those best interests can be served – and I have no reason to doubt that they will continue to be served – in Brazil. 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.
86. 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.
87. I accept that a move to Brazil will be difficult and require adjustment. In terms of her education, I am not satisfied that Rachel will be disadvantaged. She has completed grade prep in Australia and is presently in the first year of primary school. Public schooling is available in Brazil and there is nothing to indicate that she would be excluded from it. Enrolment in primary schools commences at the age of seven and Rachel will attain that age in January 2012. There is no evidence to satisfy me that she will be adversely affected scholastically, if she continues her education in Brazil.
88. Unlike older children, especially teenagers, Rachel has not yet developed a sense of identity or independence. She will lose association with her current friends. However, both Ms O’Malley and Dr Szyndler were of the opinion that whilst there might be some short term or initial unhappiness, Rachel is likely to develop new friendships. Ms O’Malley discounted the opinion expressed by Ms James that Rachel would experience overwhelming emotional distress and grief. A reaction of that type is inconsistent with the evidence of both Ms O’Malley and Dr Szyndler. Dr Szyndler said that while moving to Brazil would be a significant adjustment, a child of her age was more adaptable to change than an older child.
89. Evidence was also given by Ms O’Malley and Dr Szyndler that any negative or unhappy reaction to adjusting to life in Brazil could be ameliorated by the support, comfort and security offered by her parents. Mr and Mrs Fagundes’ ability to offer security depends on their financial situation in Brazil, including employment prospects and the availability of housing. Mr Fagundes said that he had given little thought to where he and his family will live or the type of work that he would be able to undertake in Brazil. He was aware that Brazil had a growing economy with a reducing rate of unemployment. However, he was pessimistic about his employment prospects.
90. I cannot find that he would be unemployed in Brazil. Indeed the country data points to improved employment opportunities. The Vale Mining Company in Minas Gerais is apparently investing enormous amounts of money into its operations, thereby creating employment opportunities. Whilst I acknowledge that Mr Fagundes has friends and associates in Brazil who are unemployed, their particular circumstances are not known. He does have skills and experience in the construction industry and working as a kitchen hand. The country data also provides that English speaking persons have an advantage in obtaining employment.
91. Mrs Fagundes was previously employed as a secretary when she lived in Brazil. Whilst she and her husband have been away for eight years – and I acknowledge that work practices and technology would have changed in the interim – I am not satisfied that she would not be able to obtain employment. When this application was heard, it was anticipated that another child would be born. I have been advised that Mrs Fagundes gave birth to her second child in March 2011. I accept that in the immediate future, she will be responsible for the newborn which of course, will limit her ability to undertake employment.
92. Mr Fagundes did not dismiss the chance that he and his family might be able to obtain accommodation with his family in Brazil for a very short time. Nothing points to accommodation being denied or unavailable. Should accommodation, at least in the short-term, be available in the premises occupied by his family in Brazil, it will give him the opportunity to seek employment and consider housing opportunities elsewhere. It would allow his wife and children to become settled. It will also allow him and his wife to enrol Rachel in a local primary school or to at least make enquiries to have her enrolled from the beginning of the next school semester.
93. It would appear from the country data that in recent years there has been a considerable expansion in medical facilities and healthcare initiatives throughout Brazil. As citizens of Brazil, they will be entitled to health services should it be needed.
94. Brazil is subject to high levels of crime. The country data does not refer specifically to the crime rate in Minas Gerais or Ipatinga. It would be naïve to assume that Rachel would be immune from the risk of crime. Rachel is 6 years old and dependant on her parents. Accordingly, I expect that she would more often than not be in their care and supervision, unlike older persons who are more likely to be independent of their family and therefore, at greater risk of criminal activity.
95. Rachel is not fluent in the Portuguese language but does have some command of it. I accept Ms O’Malley’s evidence that Rachel’s command of the Portuguese language will improve more rapidly because of her familiarity with it. Her fluency in the English language is to her advantage.
96. I acknowledge that Rachel is obviously happy in Australia and accustomed to the Australian way of life. If her application for citizenship is not approved, it is likely that she will have to move to Brazil with her parents. A move to a country she is not familiar with is likely to result in some unhappiness and will require adjustment. Her parents may be exposed to the uncertainty of life in Brazil, which may have an impact on Rachel but could be ameliorated by them having a positive attitude to relocation. At the age of 6, on the basis of the evidence of the psychologists, Rachel is more adaptable and therefore, more likely to cope with the change than an older child who is likely to be more independent. There is family in Brazil who can provide some support, at least by way of accommodation in the short-term. On return she will be reunited with Ms Ribeiro. There is no evidence to satisfy me that Rachel’s best interests as contemplated by the Convention cannot be served in Brazil.
DECISION
97. For all of the above reasons, I am unable to find on the balance of probabilities that Rachel’s circumstances are of an unusual nature which would warrant approval of her application for Australian citizenship.
98. The reviewable decision dated 13 January 2009 is affirmed.
I certify that the ninety-eight [98] 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 16 and 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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