Hou and Minister for Immigration and Citizenship
[2011] AATA 107
•18 February 2011
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2011] AATA 107
ADMINISTRATIVE APPEALS TRIBUNAL )
) No: 2010/1425
GENERAL ADMINISTRATIVE DIVISION )
ReYu Xi HOU
Applicant
And Minister for Immigration and Citizenship
Respondent
DECISION
TribunalMr RP Handley, Deputy President
Date18 February 2011
PlaceSydney
DecisionThe decision under review is affirmed.
.....................[sgd].....................
Mr RP Handley
Deputy President
CATCHWORDS
IMMIGRATION & CITIZENSHIP – refusal to grant citizenship – applicant under the age of 16 years at time of application – Australian Citizenship Instructions – applicant does not meet policy guidelines – circumstances not unusual – decision under review affirmed
RELEVANT ACT
Australian Citizenship Act 2007 (Cth): ss 21, 24
CITATIONS
Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24; (1986) 10 ALN N109; (1986) 66 ALR 299; (1986) 60 ALJR 560; [1986] HCA 40
Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634
Re SNMX and Minister for Immigration and Citizenship (2009) 110 ALD 645; [2009] AATA 539
Re Zlatanovski and Minister for Immigration and Citizenship (2010) 114 ALD 452; [2010] AATA 243
Re Paul and Minister for Immigration and Citizenship (2010) 116 ALD 321; [2010] AATA 411
OTHER AUTHORITIES
Australian Citizenship Instructions (in effect 21 September 2009 to 8 November 2009)
Nicole M Skalla, “China’s One Child Policy: Illegal Children and the Family Planning Law” (2004) 30 Brooklyn Journal of International Law 329
Refugee Review Tribunal Country Research Section RRT Research Response CHN17471, 7 September 2005
Refugee Review Tribunal CX 1842772 – People’s Republic of China: RRT Information Request CHN32173 – China’s ‘One child’ Policy’ and its application in Shanghai Country Information Report No.07/71, 31 August 2007
Refugee Review Tribunal CX 82789 – Summary of CIRs RE: The treatment of Children in China, 24 July 2003
Refugee Review Tribunal CX 46100 – China – treatment of ‘black children’ Country Information Report No.554/00, 7 November 2000
REASONS FOR DECISION
| 18 February 2011 | Mr RP Handley, Deputy President |
Yu Xi HOU has applied to the Tribunal for a review of a decision of a delegate of the Minister of Immigration and Citizenship to refuse her application for Australian citizenship by conferral. The issue for the Tribunal is whether this is the correct or preferable decision.
Background
Ms Hou was born in Australia in March 2009. At that time her parents, who were also present in Australia, were holders of Bridging Visa Es (BVEs). On 25 March 2009, Ms Hou was also granted a BVE.
On 5 June 2009, Ms Hou lodged an application for citizenship by conferral pursuant to s 21(5) of the Australian Citizenship Act 2007 (the Act). The application was refused by a delegate of the Minister on 19 March 2010 on the ground that her circumstances did not meet the relevant policy requirements outlined in the Australian Citizenship Instructions (the Instructions). On 13 April 2010, Ms Hou applied to the Tribunal for a review of this decision.
The Legislative Framework and Policy
Section 21(1) of the Act provides that a person may make an application to the Minister to become an Australian citizen. At the time Ms Hou applied for citizenship, s 21(5) provided:
(i) 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.
The power to approve, or to refuse to approve, a person becoming an Australian citizen is set out in s 24 of the Act, which states:
Minister's decision
(1)If a person makes an application under section 21, the Minister must, by writing, approve or refuse to approve the person becoming an Australian citizen.
(1A)The Minister must not approve the person becoming an Australian citizen unless the person is eligible to become an Australian citizen under subsection 21(2), (3), (4), (5), (6), (7) or (8).
(2)The Minister may refuse to approve the person becoming an Australian citizen despite the person being eligible to become an Australian citizen under subsection 21(2), (3), (4), (5), (6) or (7).
Section 24(2) does not state the factors that may be taken into account when refusing to grant citizenship, and the discretion of the decision-maker is therefore similarly unconfined (see Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 per Mason J at 40).
The Government has, however, developed policy in the form of the Instructions to provide guidance to decision-makers. The relevant version of the Instructions is that in effect immediately before 9 November 2009 when s 21(5) of the Act was amended. The introduction to the Instructions states that their role is:
... to support the Australian Citizenship Act 2007. The instructions provide guidance on policy in relation to the interpretation of, and the exercise of powers under, the Act and the Regulations. Decision makers should be mindful that policy must not be applied inflexibly. Policy cannot constrain the exercise of delegated powers under the Act.
Decision-makers should generally apply policy such as the Instructions unless the policy is unlawful or its application produces an unjust result in the circumstances of a particular case: Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634. I am not satisfied that there is any good reason why the Instructions should not be followed in the present case.
The Instructions specify criteria for determining citizenship applications. The pre 9 November 2009 Instructions stated relevantly:
Person aged under 18 years (s 21(5))
… 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 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
A child aged less than 16 years can make an individual application in their own right (by applying on a form that contains no other application) or on the same form and at the same time as a responsible parent. This is set out in s46(2A).
If an applicant is under 16 years of age 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:
·hold a permanent visa, including an adoption visa and
·are under 16 years of age when applying, are living with a responsible parent, who is an Australian citizen and consents to the application or
·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
·are an unaccompanied humanitarian minor who is a ward of the Minister and the Minister’s delegate has consented to the application, see Wards of the Minister.
Other requirements which must be satisfied relating to identity, national security, offences and former citizens are set out in Minister’s decision (s24).
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.
Guidance on whether it may be reasonable to consider a particular set of circumstances as unusual can be obtained from National Office through the Citizenship Help Desk.
…
The Instructions set out above relevantly identify three primary considerations to be taken into account by the decision-maker: the best interests of the child, the legislative requirements and the policy guidelines. Ms Hou was aged under 18 at the time she made an application and therefore meets the legislative requirements in s 21. Where the policy guidelines are not met, the decision-maker must also consider whether the application should, nevertheless, be approved because of the unusual nature of the circumstances.
Ms Hou does not satisfy the policy guidelines because she does not hold a permanent visa. The issues before the Tribunal are, therefore, the best interests of the child and whether there are unusual circumstances in her case.
The applicant’s Evidence
The Tribunal was provided with statutory declarations from Ms Hou’s parents, her mother, Fan Ai MENG, and her father, Xueming HOU, who were married in April 1995 and are both from Shandong Province in the People’s Republic of China. They have three children: a daughter who was born in August 1996 and is aged 14, a son who was born in August 2006 and is aged 4, and Ms Hou who was born in March 2009 and is nearly two years old. The two older children were both born in China and are being cared for there by family members.
Mr Hou studied mechanical manufacturing for two years at Tianjin University, graduating in 1991. His family are from near Rizhao city in Shandong Province. His parents live about 30 kms outside the city where his three siblings now live and work. His older brother works as a driver, his younger brother works in government, and his younger sister runs a small shop selling books and exercise books, a business she has had for the past three years. After graduating, Mr Hou worked in a factory as a mechanical engineer. When the business became “bankrupt” in 2000, Mr Hou was unable to find a job locally and went to work in Singapore where two of his colleagues had found work. He spent over four years in Singapore but did not like living there and does not want to return. In 2005, Mr Hou returned to China and, with the assistance of a Singapore partner, set up a small business in Rizhao city making parts for hot stamping machines. He employed one other person in the business. However, after operating for six months, the business was not sufficiently profitable and closed.
Mr Hou said he continued selling the parts produced in the business for a while afterwards and then, in December 2007, he and his wife travelled to Australia, having borrowed from his younger brother to pay for the air fares. Mr Hou and Ms Meng first arrived in Australia on 14 December 2007 and, on 14 January 2008, applied for Protection (Class XA) visas. Their applications were refused - decisions that were affirmed after a review by the Refugee Review Tribunal. Mr Hou and Ms Meng subsequently applied for ministerial intervention but this was also refused. They currently hold BVEs.
Mr Hou said that on arriving in Australia, he initially worked on a construction site for about a week, but after that he undertook welding work, working in a factory in St Peters for over a year. Mr Hou then registered his own business and has since worked as a welding contractor for a large construction company. He employs one other person to work with him. Mr Hou earns, on average, about $1,000 per week from the business, from which he supports his wife and child and also sends money back to China for the support of his two children there.
Mr Hou said that if he has to return to China, he will probably try and get work as a welder even though the machines used there are different. This would probably be in the countryside near Rizhao city. His initial salary as a welder would be about 800 to 900 renminbi (RMB) (approximately AUD$120) per month rising to about 1,200 to 1,300 RMB (approximately $195) per month. If he obtained work as a construction worker, which is another possibility, he would earn about 800 to 900 RMB per month – this would be heavy work and he would be required to work long shifts. Mr Hou said he and his wife and their children would have to stay with his parents because rents are high, but his parents only have a small, three‑bedroom house and with Mr Hou, his wife and three children there it would be very crowded.
Mr Hou doubts that his earnings would be sufficient to support his family. Because of the one child policy, Mr Hou is liable to pay a significant fine in respect of his son, who is a second child, and Mr Hou has been unable to pay this. His son therefore remains an unregistered or “black” child who is not entitled to government subsidies or to attend a government school. His son is currently living with Mr Hou’s mother and attending a private pre-school for which Mr Hou sends the money from Australia. His wife’s sister, who lives about 40 kms away, also sometimes helps care for their son.
Ms Meng said that before she had children, she worked as an electrician in a factory undertaking work such as reading meters. After leaving school, she had completed a six‑month diploma/certificate course to enable her to do such work. She worked full-time in the factory from 1993 until 1996, when her elder daughter was born, and then she worked part-time or casually until 1999 when there was a downturn in the economy and she stopped work. She and their daughter accompanied her husband to Singapore where she worked as a chef, having previously studied for three months to obtain a chef’s certificate in China. Then in 2003, Ms Meng and her daughter came to Australia, leaving her husband to work in Singapore, and her daughter attended school here. Ms Meng worked as a chef in a Chinese restaurant in Sydney. When her husband’s Singaporean visa expired in 2005, Ms Meng and her daughter returned to China with her husband.
Ms Meng returned to Australia with her husband on 14 December 2007. They left their daughter, who now attends a government‑run boarding school and goes home once a week, in the care of her mother-in-law who lives in the country near Rizhao city. Their son is also cared for by her mother-in-law because he is an unregistered child and they were unable to get a passport for him. He now attends a private pre-school for which Ms Meng and her husband pay the fees of about $1,200 RMB per month. Ms Meng said she and her husband cannot afford to pay the fine in respect of their son and, equally, could not afford to pay the (significantly greater) fine for their youngest daughter if she returned with them to China.
Ms Meng said after she and her husband came to Australia in December 2007, she again worked as a chef at a restaurant in Chinatown and then at a restaurant near the University of NSW, both of which had about 20 tables. Ms Meng said that if she returns to China she would probably not work as a chef because she is trained in southern Chinese cookery which is not favoured in Rizhao city. Also, it would be more difficult to find such work because of her age and, more importantly, she would have her three children to look after. Ms Meng’s parents live in the countryside near Rizhao city and she has one older brother, one older sister and one younger sister who live nearby. Her brother and sisters do part-time or casual work in the city. In her statutory declaration, Ms Meng described the problems encountered by her siblings who have also had more than one child.
Ms Meng said she and her husband propose that if they have to leave Australia and their youngest daughter is granted Australian citizenship, they will leave her in Australia and ask their good friend Ms Xu, who is an Australian citizen, and her husband to become their daughter’s guardians. Ms Meng said she has discussed this with Ms Xu although not any detailed arrangements. Ms Meng became friends with Ms Xu because they were pregnant at the same time, and Ms Xu’s daughter was born about 5 weeks before Ms Meng’s daughter. Ms Xu sometimes babysits for Ms Meng’s daughter or Ms Meng leaves her daughter at Ms Xu’s house. Ms Xu is aware that she and her husband would have to pay the expenses associated with Ms Meng’s daughter’s upbringing because Ms Meng and her husband could not afford to send them money for this purpose from China.
In her statutory declaration, Ms Meng said she cannot imagine how she and her husband could ever afford to pay the fines for breach of the one child policy if they return to China with their youngest daughter. In Australia, their daughter is healthy and well-fed and has her own bedroom in their rented townhouse. She can also attend the local child care centre and join in children’s activities locally. If they return with her to China, she will face major difficulties as a result of the one child policy. She would be unable to attend a government school and Ms Meng and her husband are unlikely to be able to afford to pay the fees for a private school if her husband is working there. Moreover, she and her husband may not be able to provide for their basic living needs such as adequate food and accommodation.
Ms Meng said other members of her family have also suffered as a result of the one child policy. If their daughter is permitted to stay in Australia, Ms Meng and her husband wish to apply for a carer visa to enable them to continue to look after their daughter in Australia.
Ms Xu also provided a statutory declaration and gave evidence at the hearing. She is an Australian citizen and lives with her husband and two children, aged five and two, in a three-bedroom townhouse that she and her husband have purchased. She and her husband arrived in Australia in 2005. Initially, her husband worked for a builder as an interior designer. After about three years, her husband set up his own interior design business. He works on his own but hires in an extra person if required. Ms Xu is now working part-time, on two days a week for eight hours a day, as a receptionist in an acupuncture shop. Her mother-in-law lives with them and cares for their children while Ms Xu is working.
Ms Xu said when she is not working, she sees Ms Meng and her daughter almost every day. Their daughters are “good play friends” and often see each other and play together. The families are also “great friends” and socialise together. Ms Xu said she loves children and she has discussed with Ms Meng and Mr Hou having their daughter live with her and her family. Ms Xu has also discussed this with her husband and she is happy to have another child without having to give birth. Her husband’s income is increasing and they would be able to afford another child, who could share a bedroom with their daughter. Ms Xu said she has returned to China to visit her family on a number of occasions since 2005. She can anticipate that, in the future, she would be able to take Ms Hou with her to China to visit her parents if Ms Hou is living in Australia with Ms Xu and her family.
The effect of China’s One Child Policy in this case
Both parties have provided the Tribunal with evidence about China’s one child policy. A translation of the Population and Family Planning Regulations of Shandong Province states in Article 3:
Family Planning is a fundamental state policy of the country. Citizens have right [sic] to bear child and obligation to implement family planning. Both husband and wife have responsibility for implementing family planning.
The Regulations state “One child per couple is advocated” (Article 19) and free household registration is provided for a first born child (Article 20). However, there are certain exceptions where a further child is permitted. The parties do not dispute that such exceptions do not apply here. Article 42 states that citizens who fail to comply with the Regulations and give birth to further children “shall be charged a social support fee according to the number of children”. This social support fee is based on the published per capita annual income for the previous year for the relevant local county and consideration is given to the actual income of the parents and the circumstances of the breach of the law. In Ms Meng’s and Mr Hou’s case, their solicitor, Mr Zhang, said that pursuant to Article 43, they are liable to pay a fee for their son, being their second child, of “three to four times the base figure” of per capita income stipulated under Article 42. In the case of their youngest daughter, the applicant in these proceedings, being their third child, the fee stipulated under Article 45 is “more than six times but less than ten times the base figure as stipulated in Article 42”.
Mr Zhang said that the total social support fee payable for Ms Meng and Mr Hou’s two children is therefore nine to 14 years per capita annual urban income. I accept that this is, in relative terms, a huge fine to have to pay to enable Ms Meng and Mr Hou to obtain household registration for their children, and even if they are able to pay the fine for their son, it seems very unlikely, given Ms Meng and Mr Hou’s financial prospects if they return to China, that they will ever be able to obtain household registration for their youngest daughter.
I accept that that Mr Hou’s income as a welder in China is likely to be of a range equivalent to $120 to $195 per month and that Ms Meng, with three children to look after might not be able to find work. Thus, the prospect of them being able to pay a fine for both their second and third children is extremely unlikely.
What then is the effect of this likely to be on their youngest daughter if she has to return to China with her parents? The Tribunal has been provided with a copy of an article on China’s one child policy: Nicole M Skalla, “China’s One Child Policy: Illegal Children and the Family Planning Law” (2004) 30 Brooklyn Journal of International Law 329 (Skalla). This states:
The social and economic implications of the OCP [One Child Policy] for children are far-reaching. Those children born “out-of-plan” have no legal identity in China. In the 1950s, the government created the household registration system, which ‘provide(s) a record of births, deaths, marriages, and changes in the household composition”. Unauthorized children cannot be registered as legal residents, and are thus unable to obtain official documentation of their existence, including birth certificates and passports.
…
Registration cards are required for claiming state subsidies, health care and admission to day care. Therefore, unregistered children, referred to as “hei haizi” or “black children”, do not qualify for government subsidies, which include education, health care, pension and many forms of employment. Without a residence card, these children become part of the floating migrant population, doomed to work at low-paying jobs that are often outside the protection of China’s labor laws. …
The Tribunal has also been provided with a ‘Research Response’, dated 7 September 2005, prepared by the Country Research Section of the Refugee Review Tribunal (RRT) to a number of questions posed about the application of the Population and Family Planning Regulations in Shandong Province and its impact on parents who have breached the Regulations and the children concerned. The Country Research Section referred to information obtained from the Department of Foreign Affairs and Trade (DFAT), which included the following:
B. The Shandong Family Planning Commission informed us that it strictly enforces family planning regulations in Shandong and it had no practice of waiving or reducing the compensation fee. But if the families are under a certain income threshold, the compensation fee can be postponed or paid by instalment. …
E. The child would be able to register for a residence permit (‘hukou’), provided her parents paid the compensation fee… . The Shandong Family Planning Commission told us that all births must be registered with local public security authorities.
F. The regulations do not prescribe any penalty against children born out-of-plan.
G. China does not have a national medical health insurance system, thus registration is not relevant to accessing health care. We understand unregistered children can attend school in most cases, but may face restrictions on which schools they can attend and must pay higher tuition fees. …
The Minister has provided further documents. An RRT Country Information Report for China in relation to the application of the one child policy in Shanghai, dated 31 August 2007, relying on information supplied by the DFAT post in Shanghai, states:
4. The official sanction for violating the one-child policy is a fine, or “social fostering fee” as family planning authorities describe it, reflecting the view that a second child consumes extra resources and national investment. In Shanghai, the minimum fine is three times the average per capita disposable income of the previous year, which in 2006 was RMB20,668 or US$2,700, per parent. So in 2007 the minimum fine for a couple both with Shanghai “hukou” (household registration) would be RMB124,008, or US$16,300. But if the actual income of husband or wife is over the average income, then the fine is three times his/her actual income. …
7. Despite the arguments in favour of relaxation, China has no plans to ease the one-child rule given the country’s still huge population base. …
R.1. Second children born overseas who have returned to China are Chinese nationals if they have not acquired foreign citizenship, and are therefore still subject to the family‑planning policy. …
R.4. Second children in Shanghai are no longer denied household registration. Local family planning authorities maintain that the penalty should fall on the parents who breach the policy, rather than their children. When parents seek to register the child with local Public Security Bureau for a “hukou”, the family planning authorities will find out about the additional child and therefore levy the fine.
R.5. Unregistered children do not officially have access to public schools, but can go to private schools, which usually charge higher tuition fees. China does not have a national health insurance system for children, so children being registered or unregistered is not relevant to access to medical services. Children’s medical expenses in China are, for the most part, covered by their parents …
R.6. Since it is no longer uncommon to have a second child, … Post does not think there is a social bias against second children. …
The Minister also provided a Country Information Report prepared by DFAT on the treatment of children in China dated 24 July 2003 which states that the Beijing post “believed that the one child policy in China was gradually relaxing, leading to the existence of many families with more than one child” with the result that “being an ‘out of plan’ child would not affect the way that child was treated”. An earlier report, dated 7 November 2000, on the treatment of ‘black children’ adds little if anything to the other information referred to above.
Submissions
Mr Zhang submitted that the requirement that the applicant have permanent residency contained in the Instructions should not be applied in this case, referring to the decisions of the Tribunal in ReSNMX and Minister for Immigration and Citizenship (2009) 110 ALD 645 and Re Zlatanovski and Minister for Immigration and Citizenship (2010) 114 ALD 452. Mr Zhang submitted that the applicant would suffer significant hardship or disadvantage if she is not granted citizenship and has to return to China and that her ‘special circumstances’ warrant consideration outside departmental policy. Her best interests are a primary consideration. If the applicant has to return to China she will be a ‘black child’ and her parents will be unable to pay the significant ‘social support fee’ for which they will be liable, not only for their second child but also for the applicant who is their third child. The applicant’s parents’ earning capacity is limited and her parents’ family also have a very limited capacity to lend her parents money.
Mr Zhang said the effect of the applicant’s parents’ financial situation in China is likely to be that if Mr Hou is successful in finding employment, and even without having to pay the ‘social support fee’ for the two younger children, they will still have financial difficulty in renting a house and providing adequately for their children. They will be unable to pay for private education for the applicant. If Mr Hou is required to pay the social support fee, he will be “financially disabled”.
Mr Zhang submitted that if the applicant’s parents have to return to China, the applicant can remain in Australia with Ms Xu and her family, who are close friends. Ms Xu has offered to assume the role of guardian for the applicant. Ms Xu and her husband have sufficient means to support the applicant as a part of their family. While separating the applicant from her parents would result in a temporary emotional reaction and be a major disruption in her life, this is outweighed by the advantages of her being able to continue living in Australia when compared with the disadvantages of returning to China.
Ms Collins, for the Minister, acknowledged that pursuant to s 21(5) of the Act, the applicant is eligible for conferral of Australian citizenship. The discretion in s 24(2) to refuse or approve the applicant becoming an Australian citizen is therefore enlivened. Ms Collins submitted that the applicant does not satisfy the valid policy requirements contained in the Instructions and a consideration of the full circumstances of her case does not warrant a departure from those Instructions. The applicant’s parents are not Australian citizens and if the applicant returns to China with her parents, the Minister contends there is no evidence the applicant will suffer significant hardship or disadvantage. The applicant’s circumstances will be the same as those of her brother whose unregistered status has not prevented him from receiving an education. Moreover, (in his statement of facts and contentions) the Minister contends there is no evidence to conclude the applicant’s parents will have insufficient resources to pay the fee for the applicant’s registration.
The Minister contends that as China does not have a national health system, all parents must cover the cost of health care for their children. The applicant’s status as an unregistered child will not, therefore, affect her access to health care. Further, there is no evidence as to any difficulty the applicant may have in international travel because of an inability to obtain appropriate travel documents.
Ms Collins submitted that there is no evidence that any financial hardship suffered by the applicant’s parents is unusual, and not having access to the same standard of living as in Australia is not sufficient to warrant the exercise of the discretion. Ms Collins submitted that the best interests of the applicant are to remain with her parents: at such a young age, she needs the support of her parents and is young enough to adapt to changed circumstances.
With regard to the proposed guardianship arrangement with Ms Xu, Ms Collins said it is not clear whether detailed discussion has taken place between the applicant’s parents and Ms Xu and her husband or whether they have the capacity to support the applicant in the long term. The applicant’s circumstances should be distinguished from those in RePaul and Minister for Immigration and Citizenship (2010) 116 ALD 321 (Paul) because, unlike in that case, Mr Hou’s evidence indicates that he will be able to find employment in China and he and Ms Meng will have the support of their families there.
In conclusion, the Minister submits that the applicant’s circumstances are not unusual and do not warrant approval of her application for citizenship outside the policy requirements set out in the Instructions. The Tribunal should, therefore, exercise its discretion to refuse approval of the applicant’s application for conferral of Australian citizenship.
Discussion
There is no dispute that Ms Hou is eligible for conferral of citizenship pursuant to the wording of s 21(5) in effect at the time of her application. Equally, it is clear the Minister has a discretion to refuse a grant of citizenship pursuant to s 24(2). The guidance for decision-makers provided by the Instructions indicates that applications by children under the age of 16 should not usually be approved if the applicant does not hold a permanent visa unless the child would otherwise suffer significant hardship or disadvantage. However, where an applicant does not meet the policy requirements, the full circumstances of the case must be considered including the best interests of the child, to determine whether the application nevertheless warrants approval because of the unusual nature of those circumstances.
Attachment B to the Instructions provides guidance on what constitutes significant hardship and disadvantage. Attachment B states that the onus is on the applicant to provide evidence to support the application and that the applicant would normally be required to demonstrate some or all of (1) an inability to gain employment because employment is restricted to Australian citizens, (2) difficulty of international travel because a person is unable to obtain or use a passport from their country of nationality/citizenship, and (3) academic or other potential is limited or restricted because of a lack of Australian citizenship. Each application must be assessed on its merits but while “policy is not to be applied inflexibly, it must be applied, unless there are special circumstances that would warrant consideration outside that policy”.
As stated above, the applicant is not a permanent resident. The issues for the Tribunal in her case, therefore, are whether, having considered the full circumstances of the applicant’s case and her best interests (as a child), the policy requirement for permanent residency should be waived because the applicant would otherwise suffer significant hardship or disadvantage and the application warrants approval because of the unusual nature of those circumstances.
First, with regard to China’s one child policy and its application in Shandong Province, there is no evidence to indicate that the relaxation of the one child policy in Shanghai has also occurred in Shandong Province. The RRT ‘Research Response’, dated 7 September 2005, suggests that the Population and Family Planning Regulations are strictly enforced in Shandong Province. My conclusion from the above information provided to me is that as a result of the one child policy applying in Shandong Province, if the applicant returns to China with her parents, she is likely to be denied access to at least some government schools and unless her parents can afford to pay for her private education, there is a possibility that she may be denied an education. She is also likely to be denied access to other government subsidies although it would appear that her access to medical services will not be affected since these are paid for in any event by a child’s parents. It is not clear but it is possible that the applicant may also be denied access to travel documents if information provided by Ms Meng about this is correct, which is corroborated by Skalla in a passage from a paper quoted above.
The applicant will also be affected if, assuming that Mr Hou is able to find employment in China, her parents’ disposable income, which seems likely to be modest, is significantly reduced by their having to pay what in relative terms is a huge fine for two children born in breach of the one child policy. Even if payment of the social support fee is deferred, I accept that with one seemingly modest income, the applicant’s family may be financially constrained.
I accept that a child’s best interests will ordinarily be served if the child is living with its parents. The question, in this case, however, is whether the applicant is likely to suffer significant hardship or disadvantage if she has to return to China with her parents. In my view, the evidence as to the application of the one child policy in Shandong Province indicates that the applicant is likely to suffer disadvantage and possibly some hardship. However, I am not satisfied that is significant or that her circumstances are unusual. In my view, the facts of this case can be distinguished with those in Paul where the applicant child was ten years old and had been brought up and educated in Australia, and where both parents were “substantially disabled” (at 325) such that, in the case of the mother, she was in need of “expensive and extensive medical treatment and therapy” and, in the case of the father, it would significantly impede his ability to find reliable employment.
The evidence indicates that Mr Hou is skilled and has in the past exercised his initiative to obtain employment and promote the welfare of his family. There is no reason to think he will be unable to do this in the future. While Ms Meng states that on returning to China she would be engaged in looking after their children, there is nothing to indicate she would be unable to obtain employment in the future.
I accept that the social support fee imposes a huge financial impost on Mr Hou and Ms Meng. However, DFAT advice, quoted above, indicates that payment of the social support fee in Shandong Province can be postponed or paid by instalments if the family’s income is below a certain threshold. While I have no evidence as to what that threshold is or, if the family’s income is above the threshold, what instalments will be required, it seems likely that the applicant’s family will not be left without means of support. While this may well mean that the family will be subject to significant financial constraints, this must be weighed against the other aspects of the child’s best interests, in particular, to be brought up by and live with the child’s parents. While Ms Xu’s evidence indicates that she would be prepared to undertake responsibility for the care and upbringing of the applicant in Australia as a member of her family, this is second best to being brought up by her parents in the company of her siblings and other family members.
Neither Mr Hou nor Ms Meng are permanent residents – currently they have BVEs. Their evidence indicates that they are loving parents who wish to secure a good future for their children. They have a supportive family in China, albeit seemingly of modest means. Family members are currently caring for Ms Meng and Mr Hou’s two older children.
In conclusion, I am satisfied that the applicant’s circumstances are not so unusual as to warrant approval of her application for citizenship outside the normal policy requirements.
Decision
The decision under review is therefore affirmed.
I certify that the 52 preceding paragraphs are a true copy of the reasons for the decision herein of Mr RP Handley, Deputy President.
Signed: ...........[sgd]..............................................................
A Veness, Associate
Date of Hearing: 8 February 2011
Date of Decision: 18 February 2011
Applicant representative: Mr A Zhang, Maxim Legal
Respondent representative: Ms A Collins, Clayton Utz
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