Huynh and Minister for Immigration and Citizenship

[2007] AATA 1794

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2007] AATA 1794

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No N2007/2061

GENERAL ADMINISTRATIVE  DIVISION		)
Re		THI THANH HUYNH

Applicant

And MINISTER FOR IMMIGRATION AND CITIZENSHIP

Respondent

DECISION

Tribunal Ms Robin Hunt; Senior Member

Date24 September 2007

PlaceSydney

Decision The decision under review is affirmed.

................. [Sgd] ....................

Ms Robin Hunt
  Senior Member

CATCHWORDS

MIGRATION – CITIZENSHIP - application for grant of Australian citizenship - lack of basic knowledge of English - permanent residency for less than 2 years - hardship considered – fear of arrest in Vietnam speculative – decision affirmed.

Australian Citizenship Act 1948, s 13(1), (2), (4) and (9)

Australian Citizenship Instructions

Liu and Minister for Immigration and Multicultural Affairs 1999 AATA 251

Re Abraham and Department of Immigration and Multicultural Affairs, unreported AAT No 12364, 3 November 1997

REASONS FOR DECISION

24 September 2007 Ms Robin Hunt; Senior Member   

Summary

1.      The Tribunal is reviewing for Thi Thanh Huynh, the Applicant, a reviewable decision refusing her Australian citizenship. Ms Huynh represented herself at the Tribunal with the aid of an interpreter. After hearing from Ms Huynh and her husband and considering all the evidence before me I decided that Ms Huynh has not demonstrated she qualifies for the grant of Australian citizenship. This means the review has not resolved in her favour.

Reviewable Decision

2. Ms Huynh, was refused the grant of Australian citizenship because she did not meet the requirements of sub-sections 13(1)(g) and 13(1)(h) of the Australian Citizenship Act 1948 (the Act). Section 13 of the Act provides that the Minister may grant citizenship in the circumstances set out. Subsections (g) and (h) respectively provide that the person must satisfy the Minister that he or she possesses a basic knowledge of the English language and has an adequate knowledge of the responsibilities and privileges of Australian citizenship.

Background

3.      At the Tribunal hearing, I heard oral evidence and submissions of Ms Huynh as well as oral evidence of her husband, Quoc Bao Bui. A Vietnamese interpreter assisted the Tribunal. The Applicant was granted a permanent visa on 4 May 2004 as the spouse of an Australian citizen, Mr Bui.

legislation

4. Section 13 of the Australian Citizenship Act 1948 provides that the Minister may grant a certificate of citizenship in circumstances set out in that section. Subsection (1) reads:

(1)Subject to this section, the Minister may, in the Minister’s discretion, upon application in accordance with the approved form, grant a certificate of Australian citizenship to a person who satisfies the Minister that:

(a)the person is a permanent resident;

(b)the person has attained the age of 18 years;

(c)the person understands the nature of the application;

(d)the person has been present in Australia as a permanent resident for a period of, or for periods amounting in the aggregate to, not less than one year during the period of 2 years immediately preceding the date of the furnishing of the application;

(e)the person has been present in Australia as a permanent resident for a period of, or for periods amounting in the aggregate to, not less than 2 years during the period of 5 years immediately preceding the date of the furnishing of the application;

(f)the person is of good character;

(g)the person possesses a basic knowledge of the English language;

(h)the person has an adequate knowledge of the responsibilities and privileges of Australian citizenship; and

(j)if granted a certificate of Australian citizenship, the person is likely to reside, or to continue to reside, in Australia, or to maintain a close and continuing association with Australia.

5.      Subsection 13(2) deals with mental or physical incapacity of an applicant. Paragraphs (1) (c), (g) and (h) do not apply in these circumstances.

6.      Subsection 13(4)(b) provides for discretion to waive part or all of the residence requirements in certain circumstances. The discretion under paragraph 13(4)(b)(v) enables periods of temporary residence in Australia to be counted as periods of permanent residence if the applicant would otherwise suffer significant hardship or disadvantage.

7.      Subsection 13(9) gives discretion to grant a certificate of Australian citizenship to a permanent resident who is the legal spouse, widow or widower of an Australian citizen.  Subsection 13 (9) reads, in part:  

(9)…, the Minister may, in the Minister’s discretion, … grant a certificate of Australian citizenship to a person:

…(c)       who is a permanent resident and is the spouse … of an Australian citizen; …       

The Applicant’s Evidence

8. Counsel for the Respondent offered Ms Huynh an opportunity to answer questions in the English language at the Tribunal hearing. Ms Huynh attempted to respond to some simple questions put to her but was unable to respond, for example, to a question about her name and another about her place of birth, without the assistance of a Vietnamese interpreter. Ms Huynh conceded at the hearing as well as in the form of application for review which she made to this Tribunal that her English was limited. In her review application she also admitted she was unable to meet the English language requirement to the satisfaction of the Department. She further stated she could not find the time to go to classes because she was a full time carer for her husband. She sought exemption from the English language requirement, saying she had special circumstances. Ms Huynh agreed that she does not meet the requirement under sub-section 13(1)(g) and argued she should be exempted because her husband suffers from schizophrenia and, as a full time carer, she cannot go to school to study English.

9.      At the hearing, Ms Huynh gave evidence she had enquired about English classes and had learned they ran for about 3 hours each. However, she could not find time to attend classes because of her husband’s need for constant care and she was concerned she could not rely on her husband behaving well for three hours. She said her husband hated noise and also that she thought he would not sit but would get up and move around if he accompanied her to classes. She worried that he would cause a disturbance either at home if left alone or at classes if she took him along with her. She gave further evidence that she never leaves her husband at home alone for fear he will disturb the neighbours. Ms Huynh said she takes her husband with her whenever she needs to go shopping or to go out for some reason.

10.     When asked whether she had considered taking her husband with her to the English classes, the applicant said there was no guarantee she could attend for the full three hours that classes ran. She was worried her husband would misbehave and she would have to attend to him. She gave evidence to the effect that she could not make any arrangements to leave him at home while she went to classes. His behaviour was too unpredictable.

11.     Ms Huynh’s husband gave evidence that he did not want to go to classes with his wife as he had already attended such classes and had some English skills. He said he had filled out the application form for his wife. As well, Ms Huynh said, during the course of her evidence about the form of application for citizenship that she had submitted to the Department, that her husband had filled it out and she had signed it.

12.     Ms Huynh told the Tribunal that one of the reasons she wanted Australian citizenship was that she feared she would be arrested if she returned to Vietnam to visit her parents. She thought Australian citizenship would protect her against this. Ms Huynh gave evidence that she had joined some protests against the Vietnamese government since she had been in Australia and thought this put her at risk of arrest. She said her parents had taken part in some political activities in Vietnam and disagreed with the government. She was concerned her record might put the family at more risk of retaliation. Her husband gave further evidence about Ms Huynh’s participation in protests and said that he had travelled with his wife and other protesters to Canberra where they had protested outside the Vietnamese embassy.

13.     Mr Bui said he had been a citizen of Australia for about 10 years. He had advised Ms Huynh to obtain citizenship as protection when she travelled to visit her parents. He said that they were considering travelling together to Vietnam in one or two years. He gave further evidence that he and Ms Huynh had discussed what it meant to be an Australian citizen. He also gave evidence that he was enrolled to vote.

14.     Ms Huynh answered questions directed to her knowledge of the obligations of a citizen. She cited the responsibility to vote and to do jury service, among other matters. She produced records to show that her husband received the disability pension and that she received the carer allowance for his care. She also produced a letter dated 23 July 2007 from Dr Thomas T D Luong, consultant psychiatrist, which certified that Mr Bui had suffered from chronic paranoid schizophrenia for more than 15 years. He further set out that Mr Bui was on high doses of medication and had been under case management from Fairfield Community Mental Health Service before his wife arrived and became his carer. The doctor said he supported Ms Huynh’s application for citizenship.

15.     Another certificate from Dr Tien Manh Nguyen dated 23 July 2007 certified that Ms Huynh had participated in anti-communist demonstrations organised by the Vietnamese community. When asked how she knew Dr Nguyen, Ms Huynh said she seen him at a demonstration and had later asked him for a certificate because of her concerns. Ms Huynh said he was reluctant but she told him she needed his help in this way. She told the Tribunal she had obtained the certificates and records produced so that she would have some evidence of her claims for the hearing.

16.      Ms Huynh gave further evidence that she had not realised that her husband was schizophrenic when she married him. She said they married in Vietnam in October 1999. She thought he had developed the condition two or three years before the marriage. She said she had arrived in Australia in May 2001 and thought she had obtained permanent residence status in March 2004. When asked if it could have been May 2004, Ms Huynh agreed that could be correct. The date of effect for permanent residence set out in Ms Huynh’s citizenship application is 4 May 2004. Ms Huynh did not suggest that any of the information in this application was incorrect.

17.     A copy of the form of application for grant of citizenship is on the respondent’s file. This shows Ms Huynh lodged her application with the Department on 12 April 2006. Her signature appears under her declaration at point 50 of the form and Ms Huynh gave evidence that the signature is hers. Below her signature is a box for insertion of the date of signing and 11 April 2004 is the date inserted.  Ms Huynh gave evidence that her husband looked after the paperwork but agreed that the dates on the form were correct.

Consideration and Findings

18.     The reviewable decision was made on the basis of Ms Huynh’s inadequate English and knowledge of the responsibilities and privileges of Australian citizenship. Ms Huynh admitted she had no ability to answer the basic questions put to her in English and had to seek a translation of the questions before she answered in the Vietnamese language. The Australian Citizenship Instructions (ACI guidelines) for applying subsection 13(1)(g) explain at paragraph 4.2.10 that :

4.2.10            The applicant must have a basic knowledge of the English language, unless the applicant:

·is 50 years of age or older (s13(7))

·is incapable of understanding the nature of the application due to a permanent physical or mental incapacity (s13(2) and 4.2.5) or

·is suffering permanently from a loss or substantial impairment of hearing, speech or sight (s13(6)).

19.     Ms Huynh presents as a young woman and stated before the Tribunal that she was born on 13 December 1972, which means she is well short of the age of 50. Ms Huynh addressed the questions put to her at the hearing in a competent manner with the aid of an interpreter. She did not answer questions unless the interpreter translated them for her and also translated her responses into English. Her answers were competent and clear and showed that she suffered no incapacity or impairment of any kind except lack of English. I find, therefore, that Ms Huynh does not satisfy subsection 13(1)(g) of the Act as she does not possess a basic knowledge of the English language.

20.     The delegate who made the reviewable decision also decided that Ms Huynh did not have “adequate knowledge” of the responsibilities and privileges of Australian citizenship for subsection 13(1)(h). As Senior Member Allen observed in Liu and Minister for Immigration and Multicultural Affairs [1999] AATA 251, the adequate knowledge test is vague and imprecise. During the hearing, I formed the view that Ms Huynh did have some knowledge of the responsibilities of citizenship. It was clear that she wished to rely on at least one of the privileges of citizenship as well, being protection by the Australian government in the event of her arrest when overseas. I note that the ACI guidelines provide some guidelines and that these have been followed in previous cases, although not strictly policy, as noted in the Liu case. Enrolling to vote and serving on a jury if called upon to do so are noted at paragraph 4.4.13 as among the responsibilities of citizenship. Also the right to claim protection from Australian diplomatic representatives while overseas is noted as one of the many privileges.  However, I did not further explore whether Ms Huynh had “adequate” knowledge of the responsibilities and privileges of Australian citizenship and made no finding as other deficiencies in her claim for the grant of citizenship were apparent.

21.     In addition to failing to satisfy subsection 13(1)(g), Ms Huynh applied too early for the grant of citizenship. I find Ms Huynh does not satisfy the requirements of subsection 13(1)(e) of the Act, having been present in Australia as a permanent resident for a period of less than 2 years during the 5 years immediately preceding the date of her citizenship application. Ms Huynh did not obtain permanent residency until 4 May 2004 and applied for citizenship in a period of less than 2 years later, on 12 April 2006.

22.     On the other hand, while Ms Huynh does not satisfy subsection 13(1)(e), I acknowledge that subsections 13(2), 13(4)(b) and 13(9)(c) of the Act provide the Minister with discretion in some cases to grant citizenship where permanent residence has been held for less than two years. These possible exceptions respectively relate to mental or physical incapacity of the applicant, possible treatment of a period of presence in Australia as a period of permanent residence and possible grant to a spouse of an Australian resident.

23.     There is nothing before me to suggest that the circumstances of Ms Huynh fit into any of the above exceptions. From hearing Ms Huynh’s evidence it is clear to me she does not suffer from any incapacity or impairment for the purposes of subsection 13(2). She gave her evidence without any obvious difficulty apart from having to use an interpreter. She had a good mastery of some of the important obligations of Australian citizenship. She clearly presented her oral evidence about the difficulties she was experiencing with caring for her husband. I can sympathise with her to a degree as she explained her situation so well. I can also understand her concerns about visiting her parents and leaving the safety of Australia without the protection of citizenship. Ms Huynh nevertheless again demonstrated her good understanding of the requirements for her case by organising documentation which confirmed her husband’s condition, her carer status and her participation in anti-Vietnamese government demonstrations.

24.     For the exercise of discretion under subsection 13(4)(b), paragraph 4.3.17 and following of the ACI guidelines set out many requirements. One of these is that during periods outside Australia the applicant must have been engaged in activities beneficial to Australia. There is no suggestion that this requirement and others set out in the ACI guidelines have been met by Ms Huynh.

25.     Under subsection 13(9)(c), discretion may be exercised in relation to the legal spouse of an Australian citizen who has been a permanent resident for less than two years. The discretion is not automatically exercised in favour of a spouse with permanent residency but other factors are important as well. The ACI guidelines set out when the discretion should be exercised. Clause 4.5.2 of the ACI guidelines guides the exercise of the discretion, and in the usual case, requires an applicant to meet the residence requirements. The requirements described in the ACI guidelines include basic knowledge of the English language and an adequate knowledge of the responsibilities and privileges of Australian citizenship. In other words, Ms Huynh’s lack of basic English language skills is still a stumbling block.

26. Clause 4.5.2 also requires, for the exercise of the discretion at section 13(9)(c), that an applicant must have been present in Australia as a permanent resident for at least 2 years in the 5 years immediately before the application, at least 12 months of which must have been within the 2 years immediately prior to that date. Ms Huynh may have been a permanent resident in Australia continuously for the 12 months immediately before her application. But the information she furnished as to her date of grant of permanent residency is that it was 4 May 2004, that is, less than two years before the date of her citizenship application on 12 April 2006.

27.     Clause 4.3.33 of the ACI guidelines provides guidance on exercise of the discretion to take into account significant hardship or disadvantage where an applicant has not been present in Australia as a permanent resident for the requisite period under sub-section 13(4)(b)(iv). Ms Huynh has not established any significant hardship or disadvantage if a certificate of Australian citizenship were not granted to her. Her concern as she explained to the Tribunal is that she would like protection if she travelled to Vietnam. Her husband told the Tribunal they were thinking of travelling in a year of two. There is no suggestion Ms Huynh needs to travel urgently. While I can understand the reassurance Australian citizenship has to offer, I find no evidence of hardship let alone significant hardship or disadvantage that might justify exercise of the discretion under sub-section 13(4)(iv).

28.     There is no additional discretion available under the Act which permits exceptions based on the difficulties that Ms Huynh put to me, such as being unable to arrange a way of attending English classes. There is also no exception for a carer. The anticipated difficulties, should Ms Huynh visit her parents in Vietnam, are mere speculation and do not amount to hardship grounds in my view.

29. I further note that the circumstances that prevent the exercise of the discretion at section 13(9)(c), also pose a barrier under subsection 13(1)(e). An applicant must have been present in Australia as a permanent resident for at least 2 years in the 5 years immediately before the application. I have already noted the date of grant of permanent residency was 4 May 2004, that is, less than two years before the date of her citizenship application on 12 April 2006. I therefore find that she does not satisfy subsection 13(1)(e) requirements.

Conclusion

30.     I find that Ms Huynh does not meet the requirements of subsection 13(1) (e) and (g) of the Act. That is, she does not possess a basic knowledge of the English language. In addition, Ms Huynh had not been present in Australia as a permanent resident for two years before her application. She also does not suffer from any relevant incapacity or impairment for the purposes of subsection 13(2) of the Act. After considering the possible exemption for a spouse under subsection 13(9)(c), I have found above that the discretion should not be exercised in her favour under the guidelines because she has little or no English. Ms Huynh has not argued that she will suffer significant hardship or the like and I can see no evidence of this. There are no other exemptions that may be applied to Ms Huynh under the Act. It follows that the decision refusing citizenship to Ms Huynh must be refused at this time. It may be that she will have acquired some basic English at a later date and that she may then qualify.

Decision

31.     The decision under review is affirmed.

I certify that the 31 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member Hunt

Signed:         Talaishia Collis
  Associate

Date/s of Hearing  14 September 2007
Date of Decision  24 September 2007  
Solicitor for the Applicant               Self-represented       

Solicitor for the Respondent  Mr Brendan O’Brien – DLA Phillips Fox