LEE and MINISTER FOR IMMIGRATION AND CITIZENSHIP

[2010] AATA 906

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2010] AATA 906

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No 2010/1297

GENERAL ADMINISTRATIVE DIVISION		)
Re		JI-EUN LEE

Applicant

And MINISTER FOR IMMIGRATION AND CITIZENSHIP

Respondent

DECISION

Tribunal Senior Member J L Redfern

Date16 November 2010

PlaceSydney

Decision The decision under review is affirmed.

......................[sgd]........................

Senior Member
  J L Redfern

CATCHWORDS

CITIZENSHIP – application for Australian citizenship – citizenship by conferral – applicant eligible to become citizen under Australian Citizenship Act 2007 (Cth) s 21(5) – s 24(2) discretion to refuse citizenship despite eligibility – Australian Citizenship Instructions (ACI) relating to s 24(2) discretion lawful as they do not fetter the discretion – proper to consider ACI in exercise of s 24(2) discretion in absence of cogent reasons to contrary – departure from ACI requirements not justified as applicant’s circumstances not unusual and approval not warranted in circumstances - decision under review affirmed – citizenship refused

LEGISLATION

Australian Citizenship Act 2007 (Cth) s 2A, s 20, 21, 21(1) – (8), 24(1), 24(1A), 24(2)

OTHER INSTRUMENTS

Australian Citizenship Instructions: Introduction and Chapter 5 - Citizenship by Conferral

Australian Citizenship Bill 2005 Revised Explanatory Memorandum at p 35 and p 44

CASES

Re Drake v Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634

Hneidi and Others v Minister for Immigration and Citizenship (2010) 182 FCR 115

Yun Seon Pak and Department of Immigration and Citizenship [2010] AATA 157

Yong Sul Kim and Minister for Immigration and Citizenship [2010] AATA 198

Seo Jung Lee and Minister for Immigration and Citizenship [2010] AATA 217

Kim and Minister of Immigration and Citizenship [2010] AATA 640

REASONS FOR DECISION

16 November 2010 Senior Member J L Redfern

backround

1.      Ji-Eun Lee was born in the Republic of Korea (South Korea) in 1992.  She is 18 years old, a citizen of South Korea and currently holds a sub-class 010 Bridging Visa A.  Ms Lee has been attending school in Sydney since she was eight years old and is currently in her final year of high school.  

2.      Ms Lee first arrived in Australia on 12 June 2001 and was granted three student visas as primary applicant on 14 July 2001, 18 May 2004 and 27 April 2005.  She has been included as a dependent applicant in an application by her mother for a Skilled (Class VC 485) Graduate visa and was granted the associated Bridging visa on 16 May 2008 pending the determination of the application.  A decision had not been made on her mother’s application by the time of the hearing.

3.      An application for Australian citizenship was made by Ms Lee on 7 July 2009.  A delegate of the Minister for Immigration and Citizenship (the Minister) refused her application on 9 March 2010 and Ms Lee now seeks a review of that decision.

Legislative and policy framework and the issues

4.      Section 20 of the Australian Citizenship Act 2007 (Cth) (the Act) provides that a person will become an Australian citizen if the Minister decides to approve an application under section 24(1) of the Act (citizenship by conferral).  

5.      An application for citizenship by conferral may be made where a person meets the eligibility requirements under section 21 of the Act.  

6.      If a person makes an application under section 21(1), the Minister must approve or refuse the application in writing, but must not approve an application unless the person is eligible to become an Australian citizen under sub-sections (2) to (8) (section 24(1A)).

7.      Relevantly, section 21(5) of the Act provides:

“A person is eligible to become an Australian citizen if the Minister is satisfied the person is aged under 18 at the time the person made the application.”

8.      Ms Lee was under 18 years at the time of her application for citizenship and as such she is eligible to become an Australian citizen.

9.      The Minister has discretion to refuse the application, despite the person being eligible (section 24(2)). The Department of Immigration and Citizenship (the Department) has established policy guidelines for the exercise of this discretion, known as Australian Citizenship Instructions (ACI).  The relevant ACI are the 2007 ACI as revised, an extract of which was produced at the hearing (Exhibit C).

10.     Chapter 5 of the ACI sets out policy guidelines for the requirements and eligibility for becoming a citizen by conferral, and includes the policy guidelines for assessing applications for persons under the age of 18 years.  The policy guidelines provide:

“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.”  

11.     The policy guidelines further provide:

“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.  The consideration only applies if the child is or would be less than 18 years of age at the time of the decision on the application and the child is living in Australia.”

12.     Ms Lee was 16 years old when she applied for citizenship, 17 years old by the time the Minister’s delegate made the decision, just over eight months later, and 18 years old at the time of the hearing.  The relevant policy guidelines for Ms Lee are those that apply to applicants who are aged 16 and over and under 18 years of age at the time of the application.  These guidelines provide:

“Applicants aged 16 years and over and under the age of 18 would usually be approved under s24 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 the 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.”

13.     If an applicant does not meet the policy guidelines set out above, their application may nonetheless be approved. The guidelines provide:

“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.”

14.     Ms Lee was not at the time of application, and has never been, a permanent resident.  She therefore does not meet the policy guidelines of being a permanent resident at the time of application, nor does she meet the residence requirement, which is dependent on the applicant being a permanent resident for a period of time before the application.

15.     Ms Lee contends that these policy guidelines are unlawful and should not be followed by the Tribunal.  The policy guidelines are said to impose additional criteria to the statutory requirement of section 21(5) of the Act as they are expressed to be ‘mandatory’.  Policy guidelines which seek to ‘control’ the discretion under section 24(2) of the Act go beyond power and are ultra vires.  Even if the policy guidelines are found to be lawful, it is submitted by Ms Lee that her application should be approved.  It is in her best interests to remain in Australia and the circumstances of her case are of such an ‘unusual nature’ that her application warrants approval, despite the fact she was not a permanent resident at the time of application.

16.     The Minister contends that the policy guidelines are lawful and the argument of Ms Lee’s lawyers misconceives the legislative framework under the Act.  Section 21 only establishes the basis for eligibility and it is section 24(2) that provides for approval.  To accept the argument would lead to the outcome that no additional considerations can be taken into account under section 24(2), elevating the status of section 21 and leaving section 24 with ’no work to do’.  The policy guidelines are valid and this is supported by established case law.  The Minister contends the Tribunal must take into account the policy guidelines when determining the correct and preferable decision in this case. 

17.     Ms Lee does not meet the policy guidelines as she was not a permanent resident at the time of her application, and the Minister contends there is nothing unusual in the circumstances of her case to warrant approval.  The Minister accepts that the best interests of the child are a relevant consideration, even though Miss Lee was 18 years old by the time of the hearing, but argues it would be in her best interests to remain with her parents.  In any event, her mother’s application has not yet been determined and there is no evidence of any immediate threat to her continued residence in Australia.

18.     The issue for the Tribunal is how the discretion under section 24(2) should be exercised in the circumstances of the case.  A preliminary issue that arises is whether the policy guidelines are lawful, and whether those guidelines should be taken into account by the Tribunal.

19.     If the policy guidelines are lawful, the question then arises as to whether the application of Ms Lee should be approved, notwithstanding she does not meet the policy guidelines for permanent residency.

Application of the policy guidelines in the Australian Citizenship Instructions 2007 

20.     The Tribunal should consider policy guidelines when reviewing a decision “unless the policy is unlawful or unless its application tends to produce an unjust decision in the circumstances of the particular case”: Re Drake v Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634 (Re Drake) at 645.  Lawful policy must be consistent with the statute and must not “control” decision making.  As Brennan J in Re Drake at 641 observed:

“There is a distinction between an unlawful policy which creates a fetter purporting to limit the range of discretion conferred by a statute, and a lawful policy which leaves the range of discretion intact while guiding the exercise of the power.”

21.     The Introduction to the ACI provides:

“The instructions provide guidance on policy in relation to the interpretation of, and exercise of powers under the Act and Regulations. Decision makers should be mindful that policy must not be applied inflexibly.  Policy cannot constrain the exercise of delegated powers under the Act.”

22.     The relevant policy guidelines are not prescriptive and the decision maker is instructed to consider the ‘full circumstances’ of the case, including the best interests of the child, to determine whether the application warrants approval because of the ‘unusual nature of those circumstances’.  In my view, the policy does not unlawfully fetter the discretion but merely guides the decision maker about the matters to consider when exercising the discretion.  Permanent residence is an important but not determinative factor.

23.     I therefore reject the submission made on behalf of Ms Lee that the policy guidelines are unlawful.  While not binding on the Tribunal, policy guidelines developed, published and applied by the Department should be taken into account unless there are cogent reasons to the contrary: Hneidi and Others v Minister for Immigration and Citizenship (2010) 182 FCR 115.  I am not persuaded that there as any such reason in the present case.

Exercise of discretion - evidence and consideration

24.     Ms Lee immigrated to Australia in 2001 with her mother and older brother.  She attended primary and secondary school in Australia and is currently in year 12 at Northmead High School.  Her father is a police officer and remained in Korea where he resides and works.  He provides financial support to the family.  Ms Lee speaks to her father on the telephone twice a week in Korean.  Her Korean is no longer fluent and she would find it difficult to return to Korea to undertake any tertiary study.

25.     While living in Australia Ms Lee has made Australian friends, engaged in a broad range of school and community activities and has undertaken work experience.  She has done well in her studies and is confident she would be admitted to university in her chosen course.  Once she has completed tertiary studies she would like to “obtain a position in an organisation with a specific global or regional dimension to their work such as human rights”. She says she is committed to Australia but has clearly maintained an interest in global and regional issues.

26.     Ms Lee wants to stay in Australia to finish her studies.  She likes Australia and has “lost the communion with Korean culture”.

27.     Ms Lee is concerned that her mother’s application for a visa will be refused, because her mother has not been able to meet the required English proficiency level for a Subclass 485 (Skilled-Graduate) visa.  If the application is not granted, Ms Lee believes she and her mother will have to leave Australia.  She does not know when this application will be determined.   

28.     Ms Lee’s brother is 20 years old and also held a student visa, which has expired.  He returned to South Korea in May 2010 for a short period and obtained a further student visa to study a Diploma of Prepress Graphics at Billy Blue Australia.  Ms Lee concedes she could also take this step if her mother’s application is refused but says this would be very difficult for her family.  There would be additional costs for her father in financing her studies as an overseas student, and she does not believe the family could afford this, given her father is already paying for her brother’s diploma course.   

29.     Ms Lee has considered whether she could continue her studies in Korea, but does not believe she has sufficient command of the Korean language to be able to complete a tertiary course.

30.     Ms Lee has resided in Australia as a temporary resident for many of her formative years.  She has formed an attachment to Australia and has lost connection with her Korean culture.  She wants to continue her studies in Australia and her family would find it difficult to finance her studies as an international student.  There are benefits in being an Australian citizen, particularly for tertiary education.  These matters are not in dispute.

31.     The Minister contends that while the best interests of the child should be treated as a primary consideration, they are not paramount and may be outweighed by other considerations, including the failure to meet policy requirements and the absence of unusual or exceptional circumstances.  The Minister also contends that Ms Lee’s circumstances are not sufficiently unusual to justify approval outside the normal policy requirements.  I agree.

32.     As is clear from the language of the Act, citizenship is not conferred lightly and is a “privilege not a right” (Australian Citizenship Bill 2005 Revised Explanatory Memorandum (the Revised Explanatory Memorandum) at p44).  Section 2A of the Act emphasises the importance of an applicant being a permanent resident for citizenship by conferral, and it is therefore not unreasonable that this is recognised in the policy guidelines where there is discretion.  This was expressly contemplated and is referred to in the Revised Explanatory Memorandum (at p35).   Departure from the policy requirements may be warranted but only where the ‘unusual nature of the circumstances’ of an applicant’s case justify approval.

33.     There is no immediate threat that Ms Lee and her mother will have to leave Australia.  While there appear to be significant hurdles in her mother meeting the English proficiency tests, it is still possible her mother’s substantive visa application may succeed and, if so, Ms Lee will be permitted to reside permanently in Australia as a dependent of the primary visa application.  Even if this application is not successful, Ms Lee could apply for another student visa, or could return to Australia to study as an overseas student, as her brother has done.  There are additional costs, but the Lee family has supported both children to pursue an education in Australia and has continued to support Ms Lee’s brother.  While this option may be difficult, it is nonetheless available.

34.     Ms Lee’s circumstances are not ‘unusual’ and have arisen in a number of recent cases before the Tribunal where children on temporary visas have resided and studied in Australia for many years.  For instance, Yun Seon Pak and Department of Immigration and Citizenship [2010] AATA 157, Yong Sul Kim and Minister for Immigration and Citizenship [2010] AATA 198, Seo Jung Lee and Minister for Immigration and Citizenship [2010] AATA 217 and Kim and Department of Immigration and Citizenship [2010] AATA 640. In these cases, the Tribunal formed the view that the circumstances of each of the applicants were not so unusual as to warrant approval of their applications for citizenship. In my view, Ms Lee’s circumstances are similar to the circumstances of those applicants, although in her case there is some prospect, albeit she is not optimistic, of permanent residence.

35.     Ms Lee’s case is difficult as it is apparent her parents have made sacrifices for their children to be educated in Australia.  She will soon finish her secondary education.  Given the passage of time and her active engagement in the community, Ms Lee understandably wishes to remain in Australia.  However, she does not have to leave and there are prospects she may remain, or at least return, to continue her studies.  There are also prospects she may be able to able to apply for citizenship by conferral in the future. 

36.     I am not satisfied Ms Lee’s circumstances are ‘unusual’ or that approval is warranted in the circumstances, and the decision of the delegate to exercise the discretion in section 24(2) of the Act not to approve the application for citizenship by conferral, should be affirmed.

I certify that the 36 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member J L Redfern.

Signed: .................................[sgd]....................................................
             Associate

Date/s of Hearing  17 September 2010 
Date of Decision  16 November 2010        

Solicitor for the Applicant          David Gu of Christopher Levingston and Associates

Solicitor for the Respondent     Greg Johnson of DLA Phillips Fox