Kim and Minister for Immigration and Citizenship
[2010] AATA 640
•26 August 2010
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2010] AATA 640
ADMINISTRATIVE APPEALS TRIBUNAL )
) No: 2010/1205
GENERAL ADMINISTRATIVE DIVISION )
ReAndrew Kim
Applicant
AndMinister for Immigration and Citizenship
Respondent
DECISION
TribunalMr RP Handley, Deputy President
Date26 August 2010
PlaceSydney
DecisionThe decision under review is affirmed.
......................[sgd]....................
Mr RP Handley
Deputy President
CATCHWORDS
IMMIGRATION & CITIZENSHIP – refusal to grant citizenship – applicant between 16 and 18 years of age – Australian Citizenship Instructions – applicant does not meet policy requirements – circumstances not very unusual or exceptional
RELEVANT ACT
Australian Citizenship Act 2007: ss 21, 24
Australian Citizenship Amendment (Citizenship Test and Other Measures) Act 2009: sch 1, item 5
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
Hneidi v Minister for Immigration and Citizenship (2009) 50 AAR 252; [2009] FCA 983
Re Zlatanovski and Minister for Immigration and Citizenship (2010) 114 ALD 452; [2010] AATA 243
Re Yong Dae Kim and Minister for Immigration and Citizenship [2010] AATA 197
Re Pak and Department of Immigration and Citizenship [2010] AATA 157
OTHER AUTHORITIES
Australian Citizenship Instructions, Chapter 5 (in effect 21 September 2009 until 8 November 2009)
REASONS FOR DECISION
| 26 August 2010 | Mr RP Handley, Deputy President |
Min Kyu (Andrew) Kim has applied to the Tribunal for review of a decision of a delegate of the Minister for Immigration and Citizenship to refuse his application for Australian citizenship by conferral. The issue for the Tribunal is whether this is the correct or preferable decision.
Background
Mr Kim was born in South Korea in 1992. In July 2000, at the age of seven, Mr Kim was granted entry to Australia on a Student (Temporary) (Subclass 560) visa. Since then, Mr Kim has remained in Australia on further Schools Sector (Temporary) (Subclass 571) visas, attending both primary and high school, and is now aged 17. His current visa expires on 15 March 2011. Mr Kim has only once left Australia, departing on 20 July 2009 and returning on 4 August 2009.
On 2 November 2009, Mr Kim 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 9 March 2010 on the ground that his circumstances did not meet the relevant policy requirements outlined in the Australian Citizenship Instructions (the Instructions). On 26 March 2010, Mr Kim 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 and, at the time of the making of the application on 2 November 2009, s 21(5) stated:
Person aged under 18
(5)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 provides relevantly:
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 exercising the discretion to refuse approval of a grant of 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).
However, the Government has developed policy in the form of the Instructions to provide guidance to decision-makers. 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 (Drake).
The Instructions specify criteria for determining citizenship applications. The Instructions in effect at the time Mr Kim’s application for citizenship was lodged on 2 November 2009 stated relevantly:
Person aged under 18 years (s 21(5))
… The discretion in s 24(2) to refuse to approve an applicant becoming an Australian citizen despite being eligible under s 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 aged 16 years and over and under the age of 18
Applicants aged 16 years and over and under the age of 18 (that is, aged 16 or 17 years) must make an application on a form that contains no other application. This is set out in s 46(2A) of the Act.
Applicants aged 16 years and over and under the age of 18 would usually be approved under s 24 if they meet the following policy guidelines:
·is a permanent resident
·satisfies the residence requirements
·the applicant need not meet the residence requirements if this would cause significant hardship or disadvantage. See Attachment B - Significant hardship and disadvantage for guidance
·understands the nature of an application
·possesses a basic knowledge of the English language
·has an adequate knowledge of the responsibilities and privileges of Australian citizenship at the time of decision
·is likely to reside or continue to reside, or maintain a close and continuing association with Australia.
…
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 interest 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 two primary considerations to be taken into account by the decision-maker: the best interests of the child and the policy guidelines. 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.
The Issues
The first issue, raised by the Applicant, is whether the Instructions are ultra vires. If they are not ultra vires, the second issue is whether to exercise the Minister’s discretion under s 24(2) of the Act to refuse to approve Mr Kim becoming an Australian citizen.
Mr Kim’s Evidence
Mr Kim provided a statement dated 17 April 2010 and gave evidence at the hearing. He was born in South Korea and arrived in Australia at the age of seven with his parents and his sister, following his parents’ decision to come to Australia for his sister’s education. Since then, Mr Kim has lived and attended school in Australia.
Mr Kim said he has now lived in Australia for 10 years. He lives with his mother. For these 10 years, his father has continued to live in Seoul, living with his brother and family. His sister returned to South Korea at the end of 2004, having won a scholarship to attend an English‑speaking school there. After finishing school, she completed two years at university but has now returned to Australia and is living with Mr Kim and their mother while studying a NAATI (National Accreditation Authority for Translators and Interpreters) accredited course for interpreters at TAFE.
Mr Kim said that at home he speaks English with his sister, and a mixture of simple Korean and some English with his parents. He speaks to his father about once a week on the phone. Mr Kim has visited South Korea once since arriving in Australia: in 2009 for two weeks. He had planned to go for a month but found he could not speak the language and there was nothing to do, having no friends there, and he asked his mother to allow him to return to Australia after two weeks. He tried to play golf there but there were too many players on the course and because there was a requirement for a minimum of three players to play together and he had nobody to play with, he was unable to play.
Mr Kim said that he has grown to be more Australian than Korean – while his “outer” may be Korean, on the inside he believes he is Australian. He has “a lot of friends” here and, having lived for more than half his life in Australia, does not “really remember” Korean society and does not think he would fit in if he returned there. Mr Kim stated he has been to many memorable events in Australia and was fortunate enough to attend World Youth Day in Sydney, as his religion is Catholic. It was the most brilliant event of which he has ever been part, and he stated that the most interesting part was reflecting on Australia’s national anthem “For those who’ve come across the seas, we’ve boundless plains to share; with courage let us all combine…”. He was proud of living in Australia as the friends he met at the World Youth Day events were looking at Australia with envious eyes, which made him feel that he wants to be more part of this society.
Mr Kim said that his ambition is to become a successful professional golfer. He spent two years in the ‘Talented Sports Program’ at the Hills Sports High School and is a member of the Combined High School Golf ‘Sydney West’ team and the first reserve of the NSW Schoolboys team. He is also a major pennant member of the Oatlands Golf Club where he plays every weekend.
Mr Kim said he believes he has a genuine chance of playing golf in a representative capacity. In December this year he hopes to attend the Qualifying School for professional golfers. This is a two-week program. Participants must pass the first week of the program to progress to the second week and of those in the second week only about 80 of the 170 taking part qualify. If he qualifies as a professional golfer, he can earn money from playing and can participate in professional tournaments in Australia and the Asia/Pacific region. Mr Kim said he is not aware of whether he has to be an Australian citizen to attend the Qualifying School. Being an Australian citizen is a requirement for entry into the NSW and Australian Institutes of Sport. Golf will become an Olympic sport in 2016 and Mr Kim would like to represent Australia as part of its team. To represent Australia or the State of NSW one needs to be an Australian citizen or permanent resident. Without citizenship, the competitions open to him will be more limited.
Mr Kim said that when he finishes school, he would also like to undertake Commerce or Business Studies at university, for example at the University of NSW or Sydney University, and perhaps by correspondence. As an overseas student, he would have to pay full fees. He has not discussed this with his father who currently pays his school fees of between $12,000 and $13,000 a year.
Mr Kim said he would have to qualify as a professional golfer in South Korea in order to get sponsorship to be able to play there, and the competition for sponsorship is significant. There are only one or two golf schools there and it is very difficult to get in. If he returns to Korea, he will also have to undertake military service for two years which must generally be started before the age of 25. If he wins an Olympic medal for Korea he would, however, be excluded from military service.
Submissions
In relation to his contention that the Instructions are ultra vires, Mr Levingston noted that it is accepted that government policy must be consistent with statute: Drake. Thus, policy should not be used to impose additional criteria to those enacted by the Parliament. In this instance, the Instructions are departmental guidelines and should be given a greater degree of scrutiny than, for example, Ministerial directions given pursuant to s 499(1) of the Migration Act 1958: Hneidi v Minister for Immigration and Citizenship (2009) 50 AAR 252; [2009] FCA 983.
Mr Levingston noted that s 21(5) only stipulates one requirement that needs to be satisfied to be eligible to become an Australian citizen, which is that a person is aged under 18. Thus, the relevant paragraphs in Ch 5 of the Instructions are seeking to impose additional criteria. He contended, contrary to the Tribunal decision in Re Zlatanovski and Minister for Immigration and Citizenship (2010) 114 ALD 452; [2010] AATA 243 (Zlatanovski), that the policy requiring the applicant to be a permanent resident and to satisfy the residence requirements goes beyond the statutory requirement, is unlawful policy guidance acting as a fetter on the exercise of the relevant discretion, and is therefore ultra vires.
Mr Levingston drew attention to the general eligibility requirements for applicants aged 18 and over in s 21(2)(b) (is a permanent resident) and (c) (satisfies the residence requirement) and asked why such requirements were not also included in s 21(5) if they were to apply for applicants aged under 18. He submitted that the Minister is able to take into account all the circumstances of the case and is not bound by requirements such as permanent residence relevant for other applicants. An examination of the structure of the provisions of the Act dealing with the conferral of citizenship also supports this view.
Mr Levingston referred to the substituted s 21(5) of the Act that took effect on 9 November 2009 (pursuant to Sch 1, item 5 of the Australian Citizenship Amendment (Citizenship Test and Other Measures) Act 2009) introducing an additional requirement that the applicant is a permanent resident at the time of making the application and at the time of the Minister’s decision on the application. He said the fact that such an amendment was deemed necessary also supports his contentions about the limited compass of the (old) s 21(5) and is implied evidence that the Minister concedes that the relevant paragraphs of the Instructions are ultra vires.
Mr Levingston said that if the Tribunal finds the Instructions to be lawful, a similar approach should be adopted to that in Zlatanovski and the Tribunal should have regard to other factors relevant to the exercise of the unconfined discretion. Relevant factors include the willingness of the applicant to make Australia his or her home, the extent to which the applicant has already become a member of the Australian community, the benefit to Australia if the applicant remains here and the loss to his or her country of origin, and the hardship to other permanent residents and citizens if the applicant has to leave Australia. Mr Levingston also noted that in previous cases the hardship the applicant would face on returning to their country of origin has been a relevant factor, and referred to a statement dated 14 April 2010 from Dr Seong-Chul Shin, Convenor and Senior Lecturer in the Korean Studies Program at the University of NSW. Dr Shin assessed Mr Kim’s Korean language proficiency as follows:
This student has maintained oral competence in Korean at a mid to higher primary school level, but his reading and writing skills are very problematic with the lower primary level at best. He is practically unable to read for comprehension or write even one correct sentence in Korean.
It would therefore not be possible for Mr Kim to pursue tertiary studies in Korea in the foreseeable future. Mr Levingston said there is no suggestion that if Mr Kim is denied citizenship, he will be unable to continue to study in Australia. Nevertheless, he has lived and studied in Australia for 10 years – the majority of his formative years - is currently making good progress at school and enjoying sporting activities such as golf, he has an extensive range of friends and acquaintances, and he wants to make Australia his home. With reference to the Convention on the Rights of the Child, Mr Levingston said Mr Kim’s best interests would be served by granting him Australian citizenship so that he can further his studies without interruption and without the risk that he may not be given another visa to re-enter Australia if he is forced to depart. Mr Kim’s best interests clearly support a grant of citizenship and the discretion to grant citizenship should be exercised in his favour.
The Minister acknowledges that Mr Kim is eligible for conferral of Australian citizenship under s 21(5) of the Act. The Minister contends that the Instructions constitute a lawful expression of policy and, while not binding on the Tribunal, provide guidance to the Tribunal in making a decision. The Minister notes that the Instructions contain directions that applications may be approved outside the policy in unusual circumstances and that decision-makers should not apply policy inflexibly.
In the case of Mr Kim, he does not hold a permanent visa and there is no evidence that refusal of his application for citizenship will cause significant hardship or disadvantage. In particular, there is no evidence that Mr Kim has been unable to access education in Australia and, on the expiry of his current visa, he may also be eligible for a further visa.
With regard to the “full circumstances of the case, including the best interests of the child”, the Minister contends that Mr Kim’s circumstances are not unusual. They are the normal circumstances of a child who has come to Australia to attend school and has been granted a visa to do so. There can have been no expectation that Mr Kim would remain in Australia indefinitely and there is no evidence to set his case apart from other children who attend school in Australia on student visas.
Thus, the Minister contends that Mr Kim does not meet the relevant policy requirements and, there being no cogent reasons to depart from the policy, the correct or preferable decision is to exercise the discretion in s 24 to refuse his application for conferral of citizenship.
Discussion
Mr Levingston, for Mr Kim, contends, first, that the Instructions are ultra vires because they require that an applicant “is a permanent resident” and “satisfies the residence requirements”, requirements that go beyond the statutory requirement in s 21(5) of the Act and fetter the discretion conferred on the Minister by s 24(2). Mr Levingston contends that the Tribunal has an unconfined discretion in this matter and should have regard to Mr Kim’s best interests as a child.
I have examined the relevant policy contained in the Instructions noting the introduction stating that “the instructions provide guidance” and that decision-makers “should be mindful that policy must not be applied inflexibly”. In relation to applicants aged over 16 and under the age of 18, the Instructions state that an applicant will “usually be approved under s 24” if they satisfy the seven stated criteria, which include being a permanent resident and satisfying the residence requirements. If not:
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 its circumstances.
In my view, the policy is not inconsistent with the provisions of the Act: Drake, at 640. The express wording of the Instructions permits some flexibility in the application of the policy guidelines and I do not accept that the Instructions unduly fetter the exercise of the discretion in s 24(2) of the Act. As the Tribunal stated in Zlatanovski, at [48], the policy still allows sufficient flexibility to enable the decision-maker to make the correct or preferable decision having regard to the circumstances of the particular case. The fact that an applicant is not a permanent resident is not necessarily fatal to his or her application.
I turn then to the second issue, whether to exercise the Minister’s discretion under s 24(2) of the Act to refuse to approve Mr Kim becoming an Australian citizen. As already stated, there is no dispute that because Mr Kim is not a permanent resident, he does not satisfy the permanent resident requirement nor the residence requirements included in the policy guidelines for applicants aged 16 and under the age of 18, set out above. I note that Mr Levingston has not contended that meeting the residence requirements would cause Mr Kim significant hardship or disadvantage, which would permit a waiving of the residence requirements.
The policy guidelines therefore require that (standing in the shoes of the decision-maker) I consider the full circumstances of Mr Kim’s case, including his best interests, to determine whether the application warrants approval because of the unusual nature of those circumstances. I note the evidence of his having lived in Australia since the age of seven and that he is now in his final year at high school, living with his mother and, currently, his older sister, in Sydney. I accept that over these years, despite Mr Kim maintaining regular contact with his father in Korea, his connection with Korea has eroded with the effluxion of time as he has become accustomed to living in the Australian community, has pursued his education and has established friends and acquaintances here. He has become acclimatised to an Australian way of life and perceives his ambitions – particularly of becoming a successful professional golfer, in the light of that experience.
Mr Kim said he wants to attend the Qualifying School in December 2010 with a view to qualifying as a professional golfer, which will enable him to compete on the professional competition circuit. The evidence indicates that he excels in this sport. He also says he would like to undertake a university program in Commerce or Business Studies, perhaps by correspondence. I accept that although this is possible in Australia, currently this would probably be very difficult in Korea because while Mr Kim has become proficient in English, his Korean language skills, particularly his reading and writing skills, are relatively poor, as Dr Shin states in his assessment.
Mr Kim’s best interests are, therefore, probably met by his being able to undertake his tertiary education in Australia and in the community to which he has grown accustomed. However, there is no evidence to establish that refusal of his application for citizenship will prevent this. I acknowledge that as an overseas student he will be required to pay full fees for his tertiary education. However, this has also been the case with both his primary and secondary education in Australia, with this being paid for by his father in Korea. Mr Kim may apply for another student visa on the expiry of his current visa on 15 March 2011. If granted, like many other overseas students, he will be able to undertake his tertiary education in Australia.
I am not satisfied that there is any other aspect of Mr Kim’s circumstances that could be described as unusual. In my view, his circumstances are not as unusual as those found by the Tribunal in Zlatanovski. His circumstances are similar to those in Re Yong Dae Kim and Minister for Immigration and Citizenship [2010] AATA 197. In that case, I referred in particular to one of a number of recent decisions in which applications for citizenship by students who are not permanent residents have been considered and, in particular, to the decision in Re Pak and Department of Immigration and Citizenship [2010] AATA 157 (Pak), where at [10], Justice Buchanan said, and I agree, 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. In my view, 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.
In Pak, the applicant applied for citizenship on the day before her 18th birthday. She had completed both her primary and secondary education in Australia and had enrolled in a tertiary course at Macquarie University. As Justice Buchanan pointed out, refusal of citizenship at this stage does not shut the door on a person later achieving permanent residency if the relevant requirements are met and, ultimately, in the future, on the person being granted citizenship.
Thus, in my view Mr Kim’s circumstances are not so unusual as to warrant approval of his citizenship application without the normal policy requirements being met. Thus, the decision to exercise the discretion in s 24(2) of the Act to not approve his application for citizenship should be affirmed.
Decision
The decision under review is affirmed.
I certify that the 40 preceding paragraphs are a true copy of the reasons for the decision herein of Mr RP Handley, Deputy President.
Signed: .........[sgd]...................................................................
Associate
Date of Hearing: 17 August 2010
Date of Decision: 26 August 2010
Applicant representative: Christopher Levingston & Associates
Respondent representative: Ms A Linacre, Clayton Utz
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