GABRIELLE PEPLOE and MINISTER FOR IMMIGRATION AND CITIZENSHIP
[2012] AATA 360
•14 June 2012
[2012] AATA 360
Division GENERAL ADMINISTRATIVE DIVISION File Number(s)
2011/5191
Re
GABRIELLE PEPLOE
APPLICANT
And
MINISTER FOR IMMIGRATION AND CITIZENSHIP
RESPONDENT
DECISION
Tribunal Senior Member CR Walsh and Member Dr A Frazer
Date 14 June 2012 Place Perth Decision Summary
The Tribunal affirms the decision under review.
...(sgd) CR Walsh....................
Senior Member CR Walsh
Catchwords
Immigration and citizenship – applicant’s Australian citizenship application refused under section 24(2) - applicant satisfied eligibility criteria in section 21(5) – Australian Citizenship Instructions – Chapter 5 – Citizenship by conferral - Policy Guidelines - applicant aged under 18 years – best interests of the child – child would otherwise suffer significant hardship or disadvantage – full circumstances of the case (including best interests of the child) warrants approval of Australian citizenship because of the unusual nature of those circumstances – applicant first diagnosed with and treated for Idiopathic Central Precocious Puberty in South Africa – applicant subsequently treated for Idiopathic Central Precocious Puberty in Australia - decision under review affirmed
Legislation
Australian Citizenship Act 2007 – section 21(1) - section 21(5) – section 24(2)
Cases
Santana and Minister for Immigration and Citizenship [2011] AATA 492
De Vasconcelos and Minister for Immigrations and Citizenship [2011] AATA 534
Da Silva v Minister for Immigration and Citizenship [2011] AATA 494
De Andrade v Minister for Immigration and Citizenship [2011] AATA 737Fagundes v Minister for Immigration and Citizenship [2011] AATA 493
Secondary Materials
Australian Citizenship Instructions – Chapter 5, titled “Citizenship by Conferral”
Convention of the Rights of the Child – Article 3(1)
REASONS FOR DECISION
Senior Member CR Walsh and Member Dr A Frazer
14 June 2012
INTRODUCTION
Ms Peploe seeks a review of the decision of the Department of Immigration and Citizenship (Department), dated 1 November 2011, to refuse to approve Ms Peploe becoming an Australian citizen pursuant to the discretion in section 24(2) of the Australian Citizenship Act 2007 (Act), despite her being eligible to become an Australian citizen under the criteria in section 21(5) of the Act.
The Department made this decision because Ms Peploe did not satisfy the policy set out in Chapter 5 of the Australian Citizenship Instructions (ACIs).
FACTS & EVIDENCE
Ms Peploe, a 7 year-old citizen of the South Africa, was born in Stirling, Western Australia, to Mr Bradley Peploe and Mrs Annette Peploe on 15 December 2004.
Ms Peploe and her mother departed Australia for South Africa on 1 April 2005.
Ms Peploe and her mother returned to Australia, on a temporary visa, Subclass 676 (Tourist), on 23 June 2006.
Ms Peploe and her mother departed Australia for South Africa (on a Subclass 676 visa) on 2 July 2006.
Ms Peploe’s parents divorced in South Africa on 9 October 2006.
On 22 November 2007 Ms Peploe and her mother were granted a temporary visa, Subclass 572 (Vocational Education and Training Section).
On 23 May 2008 Ms Peploe applied for a permanent visa, Subclass 101 (Child) (Class AH). In support of that application, Ms Peploe undertook a medical examination by Dr Roy Lever in Cape Town, South Africa. The report of that medical examination (dated 24 May 2008) stated that Ms Peploe:
“has precocious puberty….and has to get an injection called Lupron Depot once a month. She goes to Red Cross Hospital for the injection.”
On 4 July 2008 Ms Peploe was granted a permanent visa Subclass 101 (Child) (Class AH) which allows her to remain in Australia indefinitely. Although, Ms Peploe’s right to travel in and out of Australia will be subject to the grant of a travel authority beyond 4 July 2013.
Ms Peploe’s mother was granted a temporary visa, Subclass 572 on 7 July 2008.
On 17 July 2008 Ms Peploe and her mother arrived in Australia on a Subclass 101 visa and a Subclass 572 visa, respectively.
Ms Peploe’s father was granted Australian citizenship by conferral on 30 October 2010.
On 17 August 2011, Ms Peploe’s mother lodged an application for Ms Peploe to become an Australian citizen, by conferral, on her behalf. In support of that application, Ms Peploe’s mother provided a letter (dated 15 August 2011) which states, in part:
“I am a single parent who is doing the best I can to raise her. She is a beautiful little girl with a heart of gold. She is well mannered and is doing very well at school as she is listed as on the top three in her class, which is Grade 1. I am an international student while Gabrielle has permanent residency. I would like for her to obtain her citizenship in Australia as she is more Australian than South African.
Her accent is very Aussie and she calls herself an Australian. I would like her future to be secured and being made a Citizen in the place she was born which is Perth, in 2004, seems the best thing to do. She should not be rejected due to the results of mine and her dad’s divorce because of his infidelity.
She loves Australia. I love Australia. We obey the rules of the land and fit in excellently with the community. We attend Church at Victory Life Centre where Pastor Margaret Court is the Pastor. Gabrielle takes part every year in the Christmas party plays for the Church and she just loves it.
Her health is better here and in general is a happier child.”
On 17 August 2011 Ms Peploe’s mother was granted a temporary visa, Subclass 010 (Bridging A).
On 11 October 2010 Ms Peploe’s mother was granted a temporary visa, Subclass 573 (Higher Education Sector) (Class TU), which ceases on 22 August 2012.
By letter dated 1 November 2011, the Department notified Ms Peploe of its decision to refuse to approve her becoming an Australian citizen by conferral. That letter states, in part:
“The applicant’s mother, Annette Iris Peploe, explains in her letter of 15/08/2011 that she is a single parent who wishes to secure her daughter’s future as an Australian citizen. It is accepted that the applicant feels a strong connection to Australia, however, it is not accepted that the applicant’s circumstances fall within the terms of Attachment B, Chapter 5 of the ACIs. I acknowledge the various letters which have been provided to support the applicant’s application for Australian citizenship. However, based on all the available information, there is no evidence to suggest the applicant would suffer significant hardship and disadvantage if she does not acquire Australian citizenship at this time. There are no exceptional circumstances to warrant approval of her citizenship application outside current policy guidelines.”
On 2 December 2012 Ms Peploe applied to the Tribunal for a review of this decision.
At all relevant times Ms Peploe has lived in Australia, and continues to live, with her mother and not her father.
The evidence before the Tribunal was that Ms Peploe has had limited or no contact with her father, Mr Peploe, in approximately 2 years. In an undated letter, in support of his daughter’s application for Australian citizenship (Exhibit A4), Mr Peploe stated:
“I am the Father of Gabrielle Annette Peploe. I also have two other natural children and one step child.
I sponsored Gabrielle’s permanent residence with the hope of having her in my life and also with the hope of her forming bonds with the rest of her kin. After a shaky start things settled into a good rhythm with Gabrielle visiting every weekends, but two years ago it all ended abruptly when her mother’s needs changed and she did not work weekends.
So it has now been two years since we have seen Gabrielle, but our desire to have her in our lives has not diminished. She is never far from our hearts and conversations, though the pictures we refer to our now two years old.
It is my hope that one day when she is able to make her own choices or her mother finds compassion, that our access to Gabrielle will be renewed.
My hope is that the Granting of citizenship for Gabrielle my access to her will be made easier.
So it is for her sake and my sake and that of my other children that I ask that Gabrielle’s citizenship be granted.”
Ms Peploe’s father and stepmother were present at the hearing of this application but neither gave evidence.
Medical evidence
On 26 May 2008, SV Delport, Senior Specialist and Head of the Paediatric Endocrine and Diabetes Unit, School of Child & Adolescent Health, University of Cape Town, wrote to Dr Roy Lever (being the doctor who provided the medical report in support of Ms Peploe’s application for a permanent visa, Subclass 101 (Child) (Class AH) on 23 May 2008) concerning Ms Peploe’s medical condition. That letter states, in part:
“Gabrielle was initially referred to the Paediatric Endocrine Unit in July 2006 for investigation for precocious puberty.
A diagnosis of idiopathic central (LHRH dependent) precocious puberty was made and she was commenced on a GnRH analogue in September 2006. A MRI of the brain was normal and particularly excluded the presence of a hypothalamic hamartoma.
Since the GnRH therapy was initiated the rapid pubertal progression has been suppressed. She is currently on Lucrin Depot (Leuprolide Acetate) 3.75mg IMI monthly. This medical therapy will have to be continued for the next 7 to 8 years depending on the clinical course. Surgical intervention is not anticipated.
She should be reviewed by a paediatrician (preferably in a paediatric endocrine facility) at 3 monthly intervals.”
In relation to the current status of Ms Peploe’s medical condition, a letter by Dr Susan O’Connell, Paediatric Endocrinologist, with the Government of Western Australia, Department of Health, Child and Adolescent Health Service (dated 16 March 2010) was provided to the Tribunal (Exhibit A1). That letter states, in part:
“Gabrielle……has been attending Endrcrinology Clinic since she arrived in Australia in 2008……She has a diagnosis of precocious puberty of unknown cause and treatment was commenced by 3 monthly injections with Lucrin 22.5mg. She has responded extremely well and there are no other concerns about her health…..Gabrielle will continue to attend the Endocrinology Clinic on a 3 monthly basis for ongoing monitoring…”
Also in relation to the current status of Ms Peploe’s medical condition, the Tribunal was provided with a letter from Dr Catherine Choong, Consultant Paediatric Endocrinologist, with the Government of Western Australia, Department of Health, Child and Adolescent Health Service (dated 22 February 2012) (Exhibit A2). That letter states, in part:
“Gabrielle…….is currently under management for Precocious Puberty at Princess Margaret Hospital. She has responded well to Lucrin therapy, with regular 3 monthly reviews in the Endocrine Service. This surveillance and therapy should continue for a further period to ensure appropriate development stature and secondary sexual characteristics.
Whilst I am not able to comment on the situation in South Africa, the PMH Endocrine Service has significant expertise in the treatment of this condition in children and adolescents. Continued endocrine treatment at the PMH or a similar facility is important for the child’s future health and well-being.”
Dr Choong also appeared before the Tribunal and gave evidence regarding the current status of Ms Peploe’s medical condition and what treatment she will require going forward. That evidence may be summarised as follows:
·Dr Choong said she had last reviewed Ms Peploe at the Endocrine Clinic at Princess Margaret Hospital (in Perth) in November 2010. However, recent updates provided by her medical colleagues at the Clinic have confirmed Ms Peploe is progressing well;
·Dr Choong reviewed the referral letter by Dr Delport, Head of Paediatric Endocrine Unit, at Groote Schuur Hospital, Capetown dated 26 May 2008 (T29). Dr Choong stated that the specialist service in Capetown had made an appropriate diagnosis for Ms Peploe after utilising specialist imaging and commenced similar treatment for Ms Peploe to that which would be prescribed in Perth;
·Dr Choong agreed generally with the comments by Dr Delport that Ms Peploe would require ongoing treatment (by Lucrin injection) for the next “7 to 8 years depending on the clinical course.” Dr Choong explained that the decision as to when exactly to cease treatment is complex and is determined by the child’s growth and special tests, such as doing radiographic bone ages. The child would then need regular clinical review whilst transitioning into adolescence and adulthood; and
·Dr Choong discussed issues around the frequency of administration of Lucrin Depot, predominantly around whether it is used monthly or 3 monthly. Whilst both models of treatment are clinically appropriate, depending on the age and response of the child, there is an advantage in minimising the pain of injection to a child by undertaking 3 monthly intervals.
A further letter concerning the current status of Ms Peploe’s medical condition (dated 27 February 2012) was provided to the Tribunal by Dr Juliet Tan of Bassendean Total Health Care. That letter provides, in part:
“Gabrielle……….was initially diagnosed with Precocious Puberty in Cape Town by Dr LA de Kock and has been receiving treatment with Lucrin in Western Australia under the supervision of paediatric endocrinologists Catherine Choong and Dr Tran Ly. She has responded well to treatment and will need to continue 3 monthly injections for the next 5-6 years.
…………..I feel that sending Gabrielle back to South Africa would affect her adversely medically as she is responding well to treatment here in Australia and has well established medical care with her paediatric endocrinologists. I also feel that it would affect her emotionally as she has been in Australia continuously the last 4 years, has been attending school in Australia and has friends and family in Australia.”
ISSUES
The main issue for consideration by the Tribunal is whether the Department should have refused Ms Peploe becoming as Australian citizen pursuant to the discretion in section 24(2) of the Act.
In determining this, the Tribunal must consider whether:
(i)it is in the best interests of Ms Peploe that she be granted Australian citizenship;
(ii)Ms Peploe would otherwise suffer significant hardship and disadvantage, as described in Chapter 5 of the ACIs, if her application for Australian citizenship is refused; and
(iii)the full circumstances of Ms Peploe’s case (including her best interests) nevertheless warrant approval of her application for Australian citizenship because of the unusual nature of those circumstances.
LEGISLATION
Subsection 21(1) of the Act provides that:
“(1) A person may make an application to the Minister to become an Australian citizen.”
Section 21(5) of the Act provides for eligibility criteria for a person aged 18 or under. Section 21(5) states:
“Person aged under 18
(5)A person is eligible to become an Australian citizen if the Minister is satisfied that the person:
(a)is aged under 18 at the time the person made the application; and
(b)is a permanent resident:
(i) at the time the person made the application; and
(ii) at the time of the Minister’s decision on the application.”
It is not disputed that Ms Peploe satisfies the requirements in section 21(5)(a) and (b) of the Act.
Subsection 24(2) of the Act provides that:
“(2)The Minister may refuse to approve a person becoming an Australian citizen despite the person being eligible to become an Australian citizen under subsection 21…(5)…”
As stated above, the Department exercised the discretion in section 24(2) of the Act to refuse to approve Ms Peploe becoming an Australian citizen, despite her being eligible to become an Australian citizen under section 21(5) of the Act, it decided that Ms Peploe did not satisfy the policy requirements in Chapter 5 of the ACIs, titled “Citizenship by Conferral”.
POLICY
The Department’s exercise of the discretion in section 24 of the Act is guided by the ACIs.
Chapter 5 of the ACIs, titled “Citizenship by conferral”, states, in part:
“Person aged under 18 years (s21(5))
……………….
The discretion in s24(2) to refuse to approve an applicant becoming an Australian citizen despite being eligible under s21(5) would usually be exercised where the applicant does not meet the policy guidelines. In making the 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 set out below.
Best interests of the child
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.
……………
POLICY GUIDELINES
………………..
Applicants under the age of 16
…………………
Children under the age of 16 applying individually in their own right would usually be approved unders24 if they are permanent residents at the time of application and decision and also meet the following policy guidelines:
……………
·are under 16 years of age when applying, and 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 for definition); or
……………………..
In the case of an applicant who does not meet the policy guidelines above, decision makers must consider the full circumstances of the case, including the best interests of the child, to determine whether the application nevertheless warrants approval because of the unusual nature of those circumstances.” [Emphasis added]
The phrase “best interests” is not defined in the ACIs, nor do the ACIs provide any guidance as to its meaning.
In De Vasconcelos and Minister for Immigration and Citizenship [2011] AATA 534 Deputy President Handley commented at [91] that the “best interests” of the child should be interpreted for the purposes of Chapter 5 of the ACIs by reference to the Convention on the Rights of the Child (Convention).
A definition of “best interests” is not found in the Convention itself. However, the “Preamble” to the Convention states, in part:
“Convinced that the family, as a fundamental group of society and the natural environment for the growth and well-being of all its members and particularly children, should be afforded the necessary protection and assistance so that it can fully assume its responsibilities within the community,
Recognizing that the child, for the full and harmonious development of his or her personality, should grow up in a family environment, in an atmosphere of happiness, love and understanding,
Considering that the child should be fully prepared to live in an individual society, and brought up in the spirit of……peace, dignity, tolerance, freedom, equality and solidarity,
…………..
Bearing in mind that,……, “the child, by reason of his physical and mental immaturity, needs special safeguards and care, including appropriate legal protection, before as well as after birth.”
In De Vasconcelos Deputy President Handley held at [83] that the term “unusual”, as it appears in Chapter 5 of the ACIs, has the equivalent meaning to “exceptional” and is to be determined by reference to the usual or ordinary case.
“Attachment B – Significant Hardship and Disadvantage” to Chapter 5 of the ACIs states:
“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 (for example, 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 (for example, 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 (that is, 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 Higher Education Loan Programme (HELP) for their student contribution or tuition fee. Further information is available from the Department of Education, Science and Training at
Decision makers 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.” [Emphasis added]
ANALYSIS
“Best interests” of Ms Peploe
Ms Peploe has not demonstrated that it is in her “best interests” that her application for Australian citizenship be granted by conferral at this time.
As stated above, a definition of “best interests” 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.
There is no evidence before the Tribunal that if Ms Peploe is not granted Australian citizenship at this time her “best interests”, as informed by the Convention, will be compromised in any way.
Specifically, if Ms Peploe’s mother fails to obtain another visa enabling her to live in Australia (after the expiry of her current visa on 22 August 2012) and she returns to South Africa, taking Ms Peploe with her, there is no evidence that her “best interests”, as informed by the Convention, will be compromised in any way. In such circumstances, Ms Peploe would still be living with, and being cared for by, her mother (who has always been her primary carer) and her permanent visa would enable her to visit her father and siblings in Australia.
Ms Peploe would otherwise suffer “significant hardship and disadvantage”
Ms Peploe’s representative contended that Ms Peploe would suffer significant hardship and disadvantage if she were not granted Australian citizenship at this time. The reason for this, it was put, is that Ms Peploe’s mother is currently only in Australia on a temporary visa, Subclass 573 (Higher Education Sector) (Class TU) which will expire on 22 August this year and, whilst it is her mother’s intention to apply for another “graduate” visa to enable her to continue to live and study in Australia, there were “no guarantees” that she would be granted another visa by the Department. According to Ms Peploe’s representative, if Ms Peploe’s mother was not granted another visa, after her temporary visa expired on 22 August 2012, she would be forced to return to South Africa and she would take her daughter, Ms Peploe, with her. Ms Peploe’s mother gave evidence before the Tribunal which confirmed that her intention was to apply for a “graduate” visa to continue living and studying in Australia but that if she was unsuccessful in obtaining another visa she would return to South Africa with her daughter. She said that she would “never leave her child”.
Ms Peploe’s representative further contended that if Ms Peploe’s mother was unable to obtain another visa and returned to South Africa with Ms Peploe, Ms Peploe would suffer significant hardship and disadvantage because the medical treatment she has been receiving in Australia is more beneficial than that which would be available in South Africa and that this was reflected in the medical evidence before the Tribunal. Further, Ms Peploe’s representative submitted that if Ms Peploe returned to South Africa with her mother, she would be forced to abandon her school, community and the friendship groups she has established in Australia, as well as limiting her ability to reconnect with her father and other siblings living in Australia.
However, on the evidence before it, the Tribunal considers that Ms Peploe will not suffer significant hardship and disadvantage if Australian citizenship is not conferred on her at this time. Ms Peploe holds a permanent resident visa and can remain in Australia and access public education, health and social services. Ms Peploe’s mother, with whom Ms Peploe resides, holds a temporary visa, Subclass 573 (Higher Education Sector) (Class TU) which ceases on 22 August 2012. There is no evidence before the Tribunal that Ms Peploe’s mother will be unable to stay living in Australia, under another visa, upon the expiration of her current visa, along with her daughter. The evidence before the Tribunal was that every visa Ms Peploe’s mother has previously applied for, has been granted to her by the Department. There is nothing to suggest that any future application by Ms Peploe’s mother for a visa will not be granted by the Department.
Further, should Ms Peploe return to South Africa (with her mother upon the expiry of her mother’s temporary visa on 22 August 2012), there is no evidence that this would result in significant hardship and disadvantage for her. Specifically:
·There is no evidence that Ms Peploe's medical condition, for which she is having medical consultations once every 3 months, cannot be treated equally well in South Africa where it was first correctly diagnosed;
·Ms Peploe, at her father’s own admission, currently has little or no contact with her father who is an Australian citizen and who resides in Australia. If the Ms Peploe returned to South Africa there is no evidence to suggest that the current level of contact between Ms Peploe and her father would be affected. As a the holder of a permanent visa, Subclass 101 (Child) (Class AH), Ms Peploe would still be entitled to travel in and out of Australia to visit her father and siblings;
·There is no evidence that returning to live in South Africa with her mother would cause Ms Peploe psychological harm: cf Santana and Minister for Immigration and Citizenship [2011] AATA 492; and
·There is no evidence that Ms Peploe would suffer significant hardship and disadvantage for any other reason should she return to live in South Africa.
Ms Peploe relies on the medical evidence provided by Dr O’Connell, Dr Choong and Dr Tan in support of the contention that if Ms Peploe returned to South Africa (in the event that her mother was unable to stay in Australia) she would suffer significant hardship and disadvantage: refer to paragraphs 22 to 25 above.
The Tribunal considers that there is no evidence before it that Ms Peploe would not be able to obtain appropriate or equivalent medical treatment for her condition in South Africa, if she were to return there. Indeed, evidence given by Ms Peploe’s mother concerning the medical facilities where Ms Peploe was initially diagnosed for precocious puberty and was subsequently treated for that condition would suggest that Ms Peploe would receive equivalent treatment for her condition in South Africa as she has received here. Ms Peploe’s mother described the Red Cross Hospital, where Ms Peploe received her monthly injection whilst in South Africa, as being “like Princess Margaret Hospital” in Perth.
Further, Ms Peploe’s mother submitted a letter (dated 15 August 2011) in support of Ms Peploe’s citizenship application: refer to paragraph 14 above. In that letter, Ms Peploe’s mother made no suggestion that Ms Peploe would return to South Africa if Ms Peploe did not obtain Australian citizenship at this time or that if she did return to South Africa her health issues could not be appropriately treated there. The evidence of Ms Peploe’s mother (including her oral evidence before the Tribunal) does not indicate that Ms Peploe would suffer significant hardship and disadvantage if Australian citizenship is not granted to her at this time.
Ms Peploe also relies on the undated letter from her father that was provided to the Department in support of Ms Peploe’s application for Australian citizenship: refer to paragraph 20 above. The written evidence of Mr Peploe indicates that Ms Peploe was not living with her father when her application for citizenship was made and that she has had limited ongoing contact with her father since. Her father’s support for her citizenship application does not establish that Ms Peploe would suffer significant hardship and disadvantage is she is not granted citizenship at this time.
In conclusion, Ms Peploe is a permanent resident of Australia and the grant of citizenship will make no difference to her right to reside in Australia. If Ms Pelpoe were to return to South Africa, as a result of a change in her mother’s visa situation, there is no evidence that she would suffer significant hardship and disadvantage.
Full circumstances of Ms Peploe’s case – unusual circumstances
Since the Tribunal has found on the evidence before it that Ms Peploe would not suffer significant hardship and disadvantage under the Policy Guidelines in Chapter 5 of the ACIs if Australian citizenship is not granted to her at this time, it must consider the “full circumstances” of her case, including her best interests, to determine whether her citizenship application nevertheless warrants approval because of the “unusual” nature of those circumstances: De Vasconcelos.
The Tribunal considers, based on the evidence before it, that the “full circumstances” of Ms Peploe’s case are not so “unusual” or exceptional such as to warrant approval of her citizenship application at this time: De Vasconcelos.
Santana case
Before the Tribunal, Ms Peploe’s representative relied on the decision of the Tribunal in Santana and Minister for Immigration and Citizenship (Santana) [2011] AATA 492 in support of the contention that the Department’s decision (on 1 November 2011) to refuse to approve Ms Peploe’s application for Australian citizenship should be set aside.
With respect, Ms Peploe’s case may be distinguished, on its facts, from Santana. The applicant in Santana was a 15 year old teenager who was not a permanent resident of Australia and his only chance to remain in Australia was to be granted Australian citizenship. The applicant in Santana did not speak Portuguese, the official language of Brazil, and there was significant psychological evidence before the Tribunal regarding the impact that returning to Brazil would have on the Applicant. Ms Peploe, unlike the applicant in Santana, is a permanent resident of Australia, she is not a teenager (but a 7 year old), she speaks English and English is spoken in South Africa (should she return to live there with her mother) and, importantly, there is no psychological evidence before the Tribunal regarding the impact that returning to live in South Africa would have on Ms Peploe. Accordingly, the facts in this case should be considered independently of those in Santana. Instead, reference should be made to the following recent decisions of the Tribunal which all found, in relation to applicant children closer in age to Ms Peploe, that no “unusual” circumstances existed: De Vasconcelos supra, Fagundes v Minister for Immigration and Citizenship [2011] AATA 493 (the applicant, in that case, was 6 years old), De Andrade v Minister for Immigration and Citizenship (the applicant, in that case, was 4 years old), Da Silva v Minister for Immigration and Citizenship [2011] AATA 494 (the applicant, in that case, was 11 years old).
Consequently, the Tribunal finds that Ms Peploe has not demonstrated that the “full circumstances” of her case are so “unusual” that approval of her Australian citizenship is warranted at this time.
DECISION
For the above reasons, the Tribunal affirms the decision of the Department dated 1 November 2011.
60. I certify that the preceding 59 (fifty nine) paragraphs are a true copy of the reasons for the decision herein of Senior Member C R Walsh and Member Dr A Frazer
...(sgd) T Freeman..............
Associate
Dated 14 June 2012
Date of hearing 17 May 2012 Applicant’s Representative Mr T Smith Respondent’s Representative Mr M Yin
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