Kevin Rodrigueza and Minister for Immigration and Citizenship

[2013] AATA 508

[2013] AATA  508

Division	GENERAL ADMINISTRATIVE DIVISION
File Number	2013/1375
Re	Kevin Rodrigueza
APPLICANT
And	Minister for Immigration and Citizenship
RESPONDENT

DECISION

Tribunal	Ms N Isenberg, Senior Member
Date	19 July 2013
Place	Sydney

The decision under review is affirmed.

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

Ms N Isenberg, Senior Member

CATCHWORDS

IMMIGRATION & CITIZENSHIP  - refusal to grant citizenship - applicant between 16 and 18 years of age - Australian Citizenship Instructions - applicant does not meet residency requirements - - whether applicant suffering significant hardship or disadvantage by being denied citizenship - personal want do not constitute hardship - circumstances not very unusual or exceptional - decision under review is affirmed

LEGISLATION

Australian Citizenship Act 2007 (Cth) ss 21(5), 22, 24(2)

CASES

Re Dainty and Minister for Immigration and Ethic Affairs (1987) 6 AAR 259

Drake v Minister for Immigration and Ethnic Affairs (1979) 46 FLR 409
Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634
Kim and Minister for Immigration and Citizenship [2010] AATA 198
Pak and Department of Immigration and Citizenship [2010] AATA 157
Mikhail and Minister for Immigration and Citizenship [2008] AATA 498
Minister for Immigration, Local Government and Ethnic Affairs v Roberts (1993) 41 FCR 82

Naeem and Minister for Immigration and Citizenship [2011] AATA 584

SECONDARY MATERIALS

Australian Citizenship Instructions, Chapter 5

REASONS FOR DECISION

Ms N Isenberg, Senior Member

1. The Applicant, Kevin Rodrigueza, has applied to the Tribunal for review of a decision made by a delegate of the Respondent who refused his application to become an Australian citizen.

   BACKGROUND

2. The Applicant came to Australia from the Philippines on 30 June 2010 as the dependant child of his mother.  He is currently 17 years of age.

3. On 23 November 2010 he was granted a permanent visa on the basis of his mother’s partner visa.  Ms Rodrigueza is in a de facto relationship with Christopher Hudson, who is regarded as the Applicant’s step-father.

4. On 18 January 2013, the Applicant applied under s 21(1) of the Australian Citizenship Act 2007 (‘the Act’) for Australian citizenship but the delegate refused his application. 

LEGISLATION

1. Generally speaking, a person seeking citizenship is to satisfy the "general residence requirement", which requires four years as a permanent resident: s 22 of the Act. 

2. The effect of s 21(5) of the Act is that a person aged under 18 is eligible to become an Australian citizen if the decision-maker is satisfied that the person:

   ·is aged under 18 at the time the person made the citizenship application; and

   ·is a permanent resident at the time the person made the citizenship application; and

   ·is a permanent resident at the time of the decision maker's decision on the application.

3. Section 24(2) of the Act however contains a discretion under which a person may be refused Australian citizenship, despite the person satisfying s 21(5).

   THE INSTRUCTIONS

4. The Australian Citizenship Instructions provide policy guidelines relevant to the exercise of the discretion at s 24(2) of the Act.

5. Section 5.11 of the Instructions states that a person aged between 16 and 18 years would usually be approved to become an Australian citizen if they also meet the guidelines, which includes, relevantly, satisfying the residence requirement, unless they would suffer significant hardship or disadvantage if they had to meet this requirement, and refers to s 5.17 for guidance.

6. Section 5.17 of the Instructions defines the phrase "significant hardship or disadvantage" which states relevantly:

   When making a decision regarding whether a person's circumstances constitute "significant hardship or disadvantage" officers should be aware 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, eligibility for HECS-HELP, representing Australia internationally in academics or sport).

   Australian citizenship is not a requirement to study in Australia at the primary or secondary levels. Australian universities may admit students who are not Australian citizens however eligibility for Commonwealth supported place may be limited to Australian citizens or permanent humanitarian visa holders.

   Further information on Commonwealth supported places is available from the Department of Industry, Innovation, Science, Research and Tertiary Education. Education, Science and Training.

7. Section 5.11 of the Instructions also applies where an applicant fails to meet the policy guidelines and obliges decision-makers to consider the full circumstances of the case, including the best interest of the child to determine whether the application nevertheless warrants approval because of the unusual nature of those circumstances.  It refers to s 5.10.1 of the Instructions which states that the best interests of the child are to be considered as one of the primary considerations when assessing the application. 

   THE EVIDENCE

8. The Applicant provided a written statement which he read and he also gave evidence, as did Mr Hudson. 

9. The Applicant is in Year 12 at Kingsgrove North High School.  He describes himself as ‘an average student’. Mr Hudson said the Applicant was in fact better than average, notwithstanding he has only been studying in this country for two years. 

10. He is finding the stress of worrying about his status to be distracting from his studies.  A report was tendered from Maria Tzoumacas, psychologist, to the effect that the Applicant is suffering an Adjustment Disorder with Mixed Depression and Anxiety because of his rejected application.  The Applicant said he had been referred to the psychologist after he had experienced a panic attack at school.  

11. The Applicant contended that he felt some ‘separation’ from his mother because she was able to become an Australian citizen, whereas he cannot at this stage.  (She had arrived before him and was therefore able to meet the residency requirements.) 

12. He wishes to attend university at the beginning of 2014.  At this stage his preferred option is to study journalism at UNSW.  He contended that while this may be his preference, his career options are limited because he is not a citizen.  For example, a career in the ADF would be denied to him.  Encouraged by his step-father, he has considered a Navy career in communications.  However, at this stage, he has made no enquires about a career in the ADF because he is focusing on his studies at this time.

13. He claimed that he would suffer "severe disadvantage" and "significant hardship" if he is not approved to become an Australian citizen.  Disadvantage and hardship would be caused by his ineligibility for HECS-HELP as a non-citizen.  He said that it would cause his family financial hardship as they cannot afford to put him through university.  He works at a fast food outlet a couple of shifts a week and more frequently during vacation.  As a result he is somewhat less dependent on his mother and step-father and sometimes makes a financial contribution to the household.  He plans to continue living at home while he undertakes his tertiary studies.

14. He has not made any enquiries at this stage about his eligibility as a permanent resident for a Commonwealth supported place, but he understands it to be significantly less than HECS.  He has also not considered undertaking a lesser (and therefore cheaper) study load. 

15. As to whether the Applicant had considered working part-time to lessen the course fees and to earn money to finance his studies, Mr Hudson said there was ‘no need for that’.  A citizen does not need to have a job and the rest of the Applicant’s ‘school family’ will just leave school and go to university.    

16. Mr Hudson said he works as a bus driver and the Applicant’s mother works as a part-time carer.  The family ‘manages’, although 60 per cent of his wage goes in rent.  Up until recently the Applicant’s mother supported the elder brother by paying his rent and his tuition fees at Canberra University where he was studying digital media.  He has taken off a semester to earn money to finance another semester. 

17. Mr Hudson claimed that if the Applicant has to defer his studies, he will be five months behind his ‘school family’ and that by the time he has to apply again for a course he will end up being a year behind. 

18. Mr Hudson claimed that the Applicant is being discriminated against because he is not a citizen.  The difference between “want” and “need” set out in the policy was a political opinion in conflict with Australia’s obligations under the Convention on the Rights of Children (‘CROC’).  He said Australia needed to ‘think global’. 

19. Mr Hudson suggested that had the Applicant been under 16 then he would have just been carried along on his mother’s citizenship application.  However, because he is aged over 16 he is being discriminated against.

20. Mr Hudson noted that the Applicant had come from a broken home and that he, Mr Hudson, having regard to his own background, was encouraging the Applicant in any way he could to better himself – to ‘reach for the sky’. 

21. Mr Hudson suggested that to hold the Applicant back because of five months was ‘trivial’, but he hastened to add that he did not make that observation in a disrespectful way.

22. I asked the Applicant what he proposed to do at the end of his HSC in the event he did not obtain his citizenship as a result of this application.  He said that he will work and look for a Commonwealth supported place.  Mr Hudson said he had told the Applicant to keep going and that they would cross that bridge when they came to it.

    CONSIDERATION

23. There was no dispute that the Applicant satisfies the criteria for Australian citizenship at s 21(5) of the Act because he was aged under 18 at the time he made the application for citizenship and because he is, and remains, a permanent resident. 

24. The Applicant did not dispute that he did not meet the "general residence requirement" at s 22 of the Act, outlined above.

25. Whilst I am not bound to apply policy guidelines of the kind referred to in the Instructions (see Drake v Minister for Immigration and Ethnic Affairs (1979) 46 FLR 409), I may do so and, indeed, the Tribunal will usually apply the guidelines unless there are cogent reasons in a particular case for not doing so: see Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634 at 639-645; Re Dainty and Minister for Immigration and Ethic Affairs (1987) 6 AAR 259 at 267; and Minister for Immigration, Local Government and Ethnic Affairs v Roberts (1993) 41 FCR 82 at 86.

26. The Applicant contended that the policy guidelines are at odds with the CROC, to which Australia is a state party. It was submitted that the CROC clearly states that a child’s future should not be affected by political opinion, and that the Applicant should be given every opportunity to reach his personal and education goals.  He contended also that it was inappropriate that the Department makes a policy to apply to those over 16 years who are still technically children according to the CROC.  He also referred to the ‘separation’ from his mother, which is discussed below.

27. With respect, the Applicant has misconstrued the scope of the CROC.  UNICEF’s website describes the CROC as follows:

    The Convention sets out these rights in 54 articles and two Optional Protocols. It spells out the basic human rights that children everywhere have: the right to survival; to develop to the fullest; to protection from harmful influences, abuse and exploitation; and to participate fully in family, cultural and social life. The four core principles of the Convention are non-discrimination; devotion to the best interests of the child; the right to life, survival and development; and respect for the views of the child. Every right spelled out in the Convention is inherent to the human dignity and harmonious development of every child. The Convention protects children's rights by setting standards in health care; education; and legal, civil and social services.

28. I do not accept the contentions of the Applicant that the policy guidelines are in conflict with the CROC and I see no reason to depart from those guidelines.

    As the Applicant did not meet the "general residence requirement", would he suffer significant hardship or disadvantage?

29. Under the Instructions at 5.11 the Applicant does not have to satisfy the residence requirement if there was significant hardship or disadvantage.

30. Section 5.17 of the Instructions provides guidance on whether a person's personal circumstances constitute "significant hardship or disadvantage".  The Instructions discuss the difference between personal needs and personal wants.  "Personal needs" relate to situations which would give rise to significant hardship or disadvantage.  "Personal wants", on the other hand, are stated to be aspirations that generally do not constitute hardship.  The Instructions explicitly describe eligibility for HECS-HELP as a "personal want".

31. The Applicant claims he would suffer significant hardship or disadvantage because as a non-citizen he is ineligible for HECS-HELP. 

32. Deputy President Walker in Mikhail and Minister for Immigration and Citizenship [2008] AATA 498 (‘Mikhail’) at [55] concluded that a desire to travel overseas, pride in becoming an Australian citizen, and possible depression and anxiety did not constitute cogent reasons to depart from policy. In Mikhail, Walker DP also concluded that access to HECS did not constitute significant hardship or disadvantage.  Also, in Naeem and Minister for Immigration and Citizenship [2011] AATA 584, Handley DP was not satisfied that, in terms of access to higher education or international travel, the applicant would suffer any significant hardship or disadvantage as a result of her application for citizenship being refused: see [24] and [26].

33. I agree that inability to access to HECS does not constitute significant hardship or disadvantage.  In any event I was not persuaded that the Applicant’s plans to commence at university in 2014 were necessarily dependent upon the receipt of HECS.  From Mr Hudson’s evidence it appeared that the family would make every endeavor to encourage the Applicant to pursue his studies, whether he receives HECS or not.  I accept that the family has a modest total income but, as a permanent resident, he is eligible, I was informed by the Respondent, for a Commonwealth supported place. 

34. Even if this were not the case, and the Applicant had to defer his studies until he was eligible for HECS, from the time he satisfied the residence requirement on 30 June 2014 and could then reapply for citizenship, I do not consider the delay in his studies to constitute significant hardship or disadvantage. 

35. I accept that the Applicant may, under his step-father’s guidance, want to consider, on the completion of his HSC, a career in the ADF, although at this stage he has taken no steps to explore that option.  I accept that a career in the ADF may only be open to Australian citizens, but there was no evidence about that or the timing of intakes and the relevant status pre-requisites at that time.  I do not accept that there was clear evidence that the applicant demonstrated such aspirations to a career in the ADF that that it could be said that his status at this time (and until June next year) as a permanent resident only, amounts to significant hardship or disadvantage.  Further, I do not accept that a general limitation of career options because the applicant is not an Australian citizen amounts to significant hardship or disadvantage.

36. I accept that the applicant may be distressed by the fact that his status is unresolved and that he requires some psychological support.  However I do not accept that that amounts to significant hardship or disadvantage.

37. Similarly, I accept that the Applicant may experience some division from his mother because she was able to become an Australian citizen, whereas he presently cannot.  However I do not accept that that amounts to significant hardship or disadvantage.

38. I accept that the Applicant feels different to his schoolmates because of the uncertainty about whether his family will be able to support him in the early stages of his studies.  However I do not accept that that amounts to significant hardship or disadvantage.

39. I consider that, even when taken together, the Applicant’s circumstances do not amount to significant hardship or disadvantage.

    Best interests of the child

40. Consequently, in view of my findings above, I am obliged to consider as one of the primary considerations, the full circumstances of the case, including the best interest of the child to determine whether the application nevertheless warrants approval because of the unusual nature of those circumstances: s 5.11 of the Instructions.  

41. It goes without saying that it is commendable that the Applicant wishes to become an Australian citizen.  I accept that it will be more difficult for the Applicant, and his family, to study if he does not have HECS, that he perceives his career options as limited, that he may be distressed that his status is unresolved and that he requires some psychological support, that he feels he has been ‘separated’ from his mother because of their difference in status, and that he may be in a different situation in relation to his future studies than his peers. 

42. I was referred to Kim and Minister for Immigration and Citizenship [2010] AATA 198 at [23] where Handley DP agreed with Justice Buchanan in Pak and Department of Immigration and Citizenship [2010] AATA 157 that:

    ... the fact that a student has spent a lengthy period studying in Australia, has formed close personal ties here and is sincere in wishing to become an Australian citizen does not amount to either exceptional or very unusual circumstances. Indeed, in my view such circumstances are not 'unusual' in the sense of the ordinary meaning of the word, something which is 'uncommon'. It would not be considered unusual for students who have spent some years studying in a country other than that of their citizenship, and who have become acculturated into that community, to wish to remain there where to do so is perceived to be beneficial.

43. I do not accept that the Applicant’s circumstances, either individually or taken together, are unusual.  None of the matters raised were uncommon.

    DECISION

44. The decision under review is affirmed.

I certify that the preceding 48 (forty-eight) paragraphs are a true copy of the reasons for the decision herein of Ms N Isenberg, Senior Member.

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

Associate

Dated  19 July 2013

Date of hearing	8 July 2013
Applicant	In person
Advocate for the Applicant	C Hudson
Solicitors for the Respondent	S Kikkert, Department for Immigration and Citizenship In-House Litigation Section