Nguyen and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Citizenship)

[2021] AATA 2805

Nguyen and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Citizenship) [2021] AATA 2805 (9 August 2021)

Division: GENERAL DIVISION

File Number(s):2020/4490      

Re:Minh Hanh NGUYEN

APPLICANT

AndMinister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

RESPONDENT

File Number(s):      2020/4491

Re:Minh Dat NGUYEN

APPLICANT

AndMinister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

RESPONDENT

DECISION

Tribunal:Chris Puplick AM, Senior Member

Date:9 Aug 2021

Place:Sydney

The decision under review is affirmed.

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

Chris Puplick AM, Senior Member

CATCHWORDS

CITIZENSHIP – by conferral – where the applicants are under 18 – where the applicants are overseas – Citizenship Procedural Instructions – CPI 4 – person under 18 – CPI 13 – best interests of the child – decision under review is affirmed.

LEGISLATION

Australian Citizenship Act 2007 (Cth) s 24

CASES

AFY18 v Minister for Home Affairs [2018] FCA 1566

Carrascalao v Minister for Immigration and Border Protection [2017] FCAFC 107

Drake v Minister for Immigration and Ethnic Affairs (1979) 46 FLR 409

Drake and Minister for Immigration and Ethnic Affairs (No 2) [1979] 2 ALD 634

G v Minister for Immigration and Border Protection (2018) FCA 1229

Minister for Immigration, Local Government and Ethnic Affairs v Gray (1994) 33 ALD 13

Re ER Aston and Y Aston and Secretary to the Department of Primary Industry [1985] AATA 306

Shi v Migration Agents Registration Authority [2008] HCA 31

SECONDARY MATERIALS

Australian Citizenship [Policy Statement]

Department of Home Affairs: Immigration and Citizenship – Overseas travel as a permanent resident

Revised Citizenship Procedural Instructions - CPI 4 (Australian Citizenship by Conferral – Person under 18), CPI-13 (Best interests of the Child Assessments)

REASONS FOR DECISION

Chris Puplick AM, Senior Member

9 Aug 2021

1. This is an application for citizenship by conferral on behalf of two minor children (the Applicants) brought by their mother. The children were born in November 2012 (a daughter) and November 2014 (a son) respectively.

2. On 24 February 2018, both of the children’s parents, who are citizens of Viet Nam were granted Permanent Resident 190 (Skilled - Nominated) visas whilst offshore. The children were secondary applicants on this application and granted the same visa.

3. Applications for citizenship by conferral were lodged by the children’s mother on 18 January 2020 for the daughter and 21 January 2020 for the son. These applications were considered together and rejected by a delegate of the Minister (the Respondent) on 25 June 2020.

4. The Applicants (through their mother) lodged an appeal against this decision on 24 July 2020[1] and the matter was heard in this Tribunal on 20 July 2021 using the Microsoft Teams platform in accordance with the Tribunal’s COVID19 protocols. The Applicants’ mother appeared on their behalf from Viet Nam and was otherwise legally represented.

   [1] Received by the Respondent on 28 July 2020.

   DECISION-MAKING: LAW AND POLICY

5. When the Tribunal (standing in the shoes of the Minister in such cases[2]) makes any decision on applications before it, it must do so within certain constraints.

   [2] AFY18 v Minister for Home Affairs [2018] FCA 1566 at [9] per Charlesworth J.

6. The first of these is the legislation under which the decision was made. The Tribunal must apply the provisions of the legislation as they have been enacted by the Parliament. In particular, if certain requirements must be met and there is no discretion provided in relation to them, failure to meet such requirements would be fatal to an application.

7. On the other hand, legislation is often written so as to give a decision-maker discretion in how they apply the requirements. This is most often expressed by the use of the word “may” when it comes to authorising decisions to be made.

8. Where a discretion exists, decision-makers are sometimes further constrained by the statutory requirement to apply government “policy” which has been set out elsewhere than in legislation.

9. These “policy” directions may be expressed as either binding on the decision-maker or else as a “guide” as to how the legislation is to be interpreted and applied.

10. Examples of biding policy directions may be found in section 499 of the Migration Act 1958 (Cth) which empowers the Minister to issue Directions about the processes and requirements in decision-making which are binding upon decision-makers (other than the Minister themselves). Similarly, section 26(1) of the Social Security Act 1991 (Cth) empowers the Minister to publish “impairment tables” which set out the criteria which a decision-maker must use in determining level of impairment to establish qualification for payment of certain social security benefits.

11. Conversely, “policy” may be expressed in the form of guides or instructions which are published to help decision-makers interpret certain requirements of the legislation but may not be completely binding on decision-makers in that they provide for levels of discretion which may be brought to bear, or they contain lists of matters to be considered which are not exhaustive. For example, the Social Security Guide assists decision-makers to navigate their way through the Social Security Act from section (1) to section (1260) in three volumes plus the schedules and appendices.

12. In this instance, the Tribunal must take note not only of the provisions of the Australian Citizenship Act 2007 (Cth) (the Act) but also the Australian Citizenship [Policy Statement]. This Statement was made on 27 November 2020 replacing a previous Citizenship Policy. It is augmented by a series of 33 separate Revised Citizenship Procedural Instructions (CPIs).

    THE STATUS OF THE CITIZENSHIP PROCEDURAL INSTRUCTIONS

13. The fundamental approach of the Tribunal as it relates to statements of policy which is not specifically binding on decision-makers is set out in the judgement of Brennan J (as he then was) in Drake and Minister for Immigration and Ethnic Affairs (No 2) :

    These considerations warrant the Tribunal's adoption of a practice of applying lawful ministerial policy, unless there are cogent reasons to the contrary. If it were shown that the application of ministerial policy would work an injustice in a particular case, a cogent reason would be shown, for consistency is not preferable to justice.

    …………

    In my view, the Tribunal, being entitled to determine its own practice in respect of the part which ministerial policy plays in the making of Tribunal decisions, should adopt the following practice. When the Tribunal is reviewing the exercise of a discretionary power reposed in a Minister, and the Minister has adopted a general policy to guide him in the exercise of the power, the Tribunal will ordinarily apply that policy in reviewing the decision, unless the policy is unlawful or unless its application tends to produce an unjust decision in the circumstances of the particular case. Where the policy would ordinarily be applied, an argument against the policy itself or against its application in the particular case will be considered, but cogent reasons will have to be shown against its application, especially if the policy is shown to have been exposed to parliamentary scrutiny.[3]

    [3] [1979] 2 ALD 634 at [645].

14. However, there is also authority which focuses the responsibility of the Tribunal to make its own decision based upon the facts and evidence before it at the time of the hearing.[4]

    [4] Shi v Migration Agents Registration Authority [2008] HCA 31 at [37].

15. In any event, the application of government policy to decision-making is not entirely a black and white or automatic process. As far back as 1979 the Full Federal Court held that:

    “If the original decision maker has properly paid regard to some general government policy in reaching his decision, the existence of that policy will plainly be a relevant factor for the tribunal to take into account in reviewing the decision. On the other hand, the Tribunal is not, in the absence of specific statutory provision, entitled to abdicate its function of determining whether the decision made was, on the material before the Tribunal, the correct and preferable one in favour of a function of merely determining whether the decision made conformed with whatever the relevant general government policy might be.”[5]

    [5] Drake v Minister for Immigration and Ethnic Affairs (1979) 46 FLR 409 at [420].

16. In a further review of the same case, the then President of this Tribunal made it clear in relation to Ministerial discretion (as expressed in policy directions) that, in relation to the responsibilities of a decision-maker,  “His discretion cannot be so truncated by a policy as to preclude consideration of the merits of specified class of cases.”[6]

    [6] Re Drake and Minister for Immigration and Ethnic Affairs (No.2) (1979) 2 ALD 634 at [640].

17. In 1985 the Tribunal noted:

    “Policy is not law. A statement of policy is not a prescription of binding criteria. By conferring a discretion upon the decision-maker, the law requires that all matters relevant to the exercise of the discretion shall be taken into account”.[7]

    [7] Re ER Aston and Y Aston and Secretary to the Department of Primary Industry [1985] AATA 306 at [21].

18. In 1994 the Full Federal Court opined:

    “It is right to say that the tribunal, which operates as part of a continuum of administrative decision-making, is not bound by government policy although it may take such policy into account in the exercise of the statutory power or discretion which is under review.”[8]

    [8] Minister for Immigration, Local Government and Ethnic Affairs v Gray (1994) 33 ALD 13 citations omitted.

19. Mortimer J, after a comprehensive review of the authorities on this matter concluded[9]:

    [9] G v Minister for Immigration and Border Protection (2018) FCA 1229 at [210].

    [171] An important point to make is that the justice or injustice of an outcome for a particular individual is not to be measured against the contents of the policy. Otherwise, the purpose of the point Brennan J is making would be lost. Justice or injustice is not found within a policy: it is found by looking at the overall circumstances of an individual’s case, with the principal focus being on the purpose and context of the statutory power, not the executive policy framed to guide it. Otherwise, again, the policy becomes a rule of law.

    …

    [201] It can be seen from the authorities that there are a number of ways in which the dividing line between a lawful and unlawful approach to the use of a policy has been expressed:

    •A decision must not be “so truncated by a policy as to preclude consideration of the merits of specified classes of cases”;

    •A decision-maker must not “abdicate” her or his exercise of power to the terms of the policy;

    •The policy should not “superimpose” a requirement or requirements that prevent a decision-maker from being satisfied of matters set out in the statute;

    •The policy should not create a requirement or guideline that has an arbitrary character, in the sense of not being able to be justified or understood by reference to the statutory power in its context; and

    •A policy statement should not be applied so as to prejudice a Tribunal’s independent assessment of the merits of the case.

    ….

    [210]…policy is not to become a rule of law. The statute is the expression of the rule of law. Executive policy cannot, in form or more importantly in substance, be perceived by decision-makers as, or operate as, a rule.”

    …

    [266]  The passage in Drake (No 2) to which the Tribunal referred cannot become a mantra for decision-makers to avoid performing their task with active intellectual consideration of the material before them in a fulsome way, and not only in accordance with a structure imposed on the decision-maker by an executive policy. A Tribunal must give active intellectual consideration to what is the correct or preferable decision on the basis of all the material before it, in all of the circumstances before it. One of those circumstances is the existence, and content, of an executive policy.

20. The Tribunal must also carefully consider and evaluate all the submissions or representations made to it on:

    “[T]he principle that when a decision maker is required by statute to consider a claim or other mandatory criteria, the decision maker must engage in an active intellectual process directed at that claim or criteria."[10]

    [10] Carrascalao v Minister for Immigration and Border Protection [2017] FCAFC 107 at [45].

    THE BASIS OF THE APPLICANT’S CLAIM

21. Fundamental to the Applicant’s claim is a belief that it would be to the long-term advantage of the Applicants were they to become Australian citizens. Their mother, on their behalf, makes it clear that she believes that the prospects for her children’s future lives would be immeasurably better were they educated to Australian standards and allowed to live in and benefit from the advantages of Australian citizenship.

22. The Applicant’s claim may be more expansively outlined as follows[11]:

    [11] Drawn from Applicant’s Statement of Facts, Issues and Contentions (25 November 2020); Applicant’s Reply to Respondent’s Statement of Facts, Issues and Contentions (13 July 2021) and oral testimony of Mrs Nguyen (20 July 2021). The Applicant’s Reply document updates the 25 November 2020 SFIC as the new Citizen Policy Statement was promulgated two days later on 27 November 2020.

    ·The parents of the Applicants are both holders of permanent resident visas (subclass 190) who were granted their visas offshore and had planned to relocate to Australia once the visas were granted;

    ·The father of the children had lived and studied in Australia for a number of years; is employed (in part) by Swinburne University through its campus in Hanoi

    ·The parents previously owned property in NSW and have recently arranged to purchase land in Werribee (Victoria);

    ·The parents made a conscious decision that they wanted their children to study in Australia as they believe that this would give them (the children) the best prospects for their future.  The choice of Australia was a deliberate one, made after considering alternate countries outside Viet Nam;

    ·Because of the ill health of the father of the mother and both of the parents of the father, the parents of the Applicants have been forced to remain in Viet Nam to look after them and this situation arose only after the grant of their 190 visas in February 2018;

    ·While the children have been in Viet Nam the mother has ensured that their education was focussed around the Australian educational curriculum[12], so much so that the children have become somewhat disconnected from the school system of Viet Nam and isolated from interaction with their peers;

    ·Although the parents are holders of permanent resident visas, they are not able to travel to Australia because of the current COVID19 travel restrictions and their visa status does not give them the automatic right of entry into Australia;[13]

    ·It is not possible for the parents to convert their 190 visas into any alternate form of skills-based visa because of the change of status (age/employment) of the mother since the 190 visa grant and a Return Resident visa would not be possible to acquire because the parents do not currently meet the 2 year residence requirements for such a visa;[14]

    ·Had it not been for the pandemic, the Applicants and their mother would have been in Australia between May and September 2021 with the children enrolled in the Croydon (NSW) Primary School. They had airfares and accommodation paid for but these were subject to COVID19-cancellations;[15]

    ·It is the mother’s intention that the Applicants would be sent to Australia and enrolled in the Croydon Primary School from  May to September each year (thereafter returning to Viet Nam) and that she (and possibly their father) would accompany them while alternate arrangements were made with the mother’s sister in Viet Nam to care for their aged parents;

    ·It is the mother’s intention that when the children reach Year 7 (at age 12 years) the Applicants would be sent (2 years apart) to study in Australia and that they would reside with family friends of the mother living in Sydney;

    ·It is the family’s eventual plan to move to Australia and take up residence in Werribee (Victoria)[16] where they have acquired property and with the prospect of the husband continuing to be employed by Swinburne University;

    ·In the interim, the mother has also taken steps to establish a business in Viet Nam the principal purpose of which is to assist Vietnamese students gain the degree of language proficient necessary to pass the IELTS[17] requirements in order to study in Australia.[18]

    [12] Via the Sydney Distance Education Primary School programme and the Mathemafix online programme. The Applicants also assert that they have been able to access other Australian-based online programmes due to their lack of accepted permanent resident status and have been forced to use the “inferior” American curriculum through Acellus and Khan Academy.

    [13] Department of Home Affairs: Immigration and Citizenship – Overseas travel as a permanent resident.

    [14] Details in support of these assertions appear at pages 10 and 11 of the Applicant’s SFIC of 25 November 2020.

    [15] Evidence of such bookings are before the Tribunal in material submitted by the Applicant on 14 July 2021.

    [16] The parents had previously owned land in Orange (NSW).

    [17] International English Language Testing System.

    [18] Applicant’s Statement of Facts, Issues and Contentions (25 November 2020) at page [13].

23. Primarily, the Applicants’ submit that notwithstanding any impediments in the way of their application caused by their parent’s residential status or the impact of the COVID19 pandemic, their application should be approved because it is manifestly in the “best interests of the children”  that it should be.

    THE BASIS OF THE RESPONDENT’S REJECTION OF THE APPLICATION

24. This may be stated briefly:[19]

    ·It is accepted that the parents are holders of permanent resident visas but they are not usually resident in Australia;

    ·The application itself is a valid application in that the Applicants satisfy the requirements of sections 5(b)(i) and 5(b)(ii) of section 24(5) of the Act;

    ·However, they fail to satisfy various requirements of CPI-4 (Australian Citizenship by Conferral – Persons under 18);

    ·Moreover, proper application of the provisions of CPI-13 (Best interests of the Child Assessments) would lead to a conclusion that it is not in the best interests of the children for this application to be granted;

    ·The Minister has a discretion under section 24(2) of the Act to refuse their application and his decision to do so, now under review, should be upheld in this Tribunal.[20]

    [19] Drawn from the Respondent’s Statement of Facts, Issues and Contentions (SFIC).

    [20] Section 24(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), (7) or (8).”

    CONSIDERING THE PROVISIONS OF THE CITIZENSHIP PROCEDURAL INSTRUCTIONS

25. There are two CPIs relevant to this application, the first concerning the questions of residency and the second the best interests of the child.

26. CPI 4 (Australian Citizenship by Conferral – Person under 18) relevantly states (emphasis added):

    The purpose of this Instruction is to identify the legal requirements, and related policy and procedures that apply to the assessment of an application under subsection 21(5) of the Australian Citizenship Act 2007 (the Act) to become an Australian citizen by conferral for persons under the age of 18.

    Decision-makers are required to understand and apply the relevant law as set out in the Act. Many of the requirements in the Act are expressed in objective terms and do not allow any discretion for decision-makers. To the extent that the Act allows for discretion, decision-makers should consider the Department’s approved policy and procedures where relevant and appropriate. This ensures that decision-making is consistent to the extent that it is appropriate and arbitrary outcomes are avoided.

    However, policy and procedures do not have the force of law. When exercising powers or making decisions under legislation, citizenship officers should give policy documents due weight, but should not apply policy inflexibly and should consider the merits of each individual case. In order to make a fair, reasonable and lawful decision, it may be appropriate to depart from the approved policy and procedures, depending on the facts of the particular case.

    …………

    7. Children aged 15 years and under applying individually

    A child aged 15 years and under can lodge an application independently and without a responsible parent’s involvement if they have the legal capacity to do so.

    Where an officer is not satisfied the child has the capacity to make their own application, a responsible parent or someone with the required authority can lodge the application on a child’s behalf. The application must be lodged by a person with the required authority for the application to be valid.

    7.1 Policy considerations for children aged 15 years and under

    In order to uphold and maintain the integrity of the citizenship program decision-makers must have due regard to all the circumstances of the family unit when considering individual applications made by or on behalf of a child aged 15 years and under, or where a child's application is being considered as an individual application because their responsible parent's application has been refused or their parent has died.

    The following factors are relevant in making a decision under subsection 24(2) of the Act. Decision-makers are to consider whether the child is:

    · usually resident in Australia and living with a responsible parent who is an Australian citizen and who consents to the application; or

    · usually resident in Australia and living with a responsible parent who is a permanent resident and who consents to the application, and that responsible parent would meet the residence requirement but has decided not to apply for Australian citizenship because they would lose the citizenship of another country; or

    · usually resident in Australia and living with a responsible parent who is not an Australian citizen and who consents to the application. If the child would suffer significant hardship or disadvantage if they were not to become an Australian citizen at this time (for example, if the child would not have access to a certain scholarship which is only available to Australian citizens), then this may be a relevant consideration for decision-makers.

    · usually resident overseas and living with a responsible parent who is an Australian citizen and who consents to the application. In this situation, it may be relevant for decision-makers to consider whether the grant of the Australian citizenship could disadvantage the child or put them in significant hardship (for example, whether by acquiring the Australian citizenship, the child would lose another citizenship which can affect their rights and access to entitlements, such as claiming an inheritance); or

    · an unaccompanied humanitarian minor who falls under the Minister's guardianship and a responsible parent or care has consented to the application.

    Applications must also be carefully considered to ensure that the child and their family unit or their relevant responsible parent, intends to reside, or to continue to reside, in Australia or to maintain a close and continuing relationship with Australia should the application be approved.

1. The important matters to note are that the CPI places considerable emphasis upon Applicants being “usually resident” in Australia; they emphasis consideration of the position of the family unit as a whole and draw attention to the need to consider any hardship which a child might face as a result of the refusal of an application.

2. CPI 13 (Best Interests of the Child Assessments) states (emphasis added):

   3.3. When to assess the best interests of the child

   A decision-maker may assess the best interests of a child while deciding citizenship applications that:

   · directly relate to a child; and

   · relate to a family member, primary care giver or other person who has claimed responsibility for the child, even if the decision does not directly relate to the child. This is because a decision about a parent or primary care giver may affect the child. The child concerned may be a non-citizen or an Australian citizen child of a non-citizen parent.

   …

   The Minister (or a person delegated by the Minister) may refuse a child’s application using a discretionary power contained in subsection 24(2) of the Act. In this circumstance a best interest of the child assessment would be required.

   3.2. Definition of ‘best interests of the child’

   ‘Child’, when used in this Instruction, means a person who has not turned 18 years of age.

   The phrase ‘best interests of the child’ is not defined, but is informed, in part, by the principles in the UNCRC.[21] The factors that are most likely to be relevant to citizenship decisions are:

   [21] United Nations Convention on the Rights of the Child.

   · children should be protected from all forms of physical or mental violence, injury or abuse, neglect or negligent treatment, maltreatment or exploitation, including sexual abuse;

   · families should be able to stay together, as far as possible;

   · the rights and duties of parents and other relevant family members should be respected and it should be recognised that both parents have common responsibilities for the upbringing and development of the child;

   · a child has the right to preserve his or her identity, including nationality, name and family relations as recognised by law;

   · prevention of the illicit transfer and non-return of children abroad;

   · freedom of religion;

   · the views of the child should be given weight in accordance with the child’s age, maturity and level of understanding; and

   · the degree of the child’s integration into the Australian community.

   3.4. Factors to take into consideration

   Decision-makers may refer to and be guided by the articles set out in the UNCRC…[22]

   [22] Citizenship Procedural Instructions CPI 14 – Best interests of the child assessments at [3.4]

   ……

   Those factors raised by the applicant or a third party, or evident and relevant on the available material, must be considered. Decision-makers are not required to request further material for consideration regarding the best interests of a child but may do so if appropriate for the purposes of giving proper consideration to the matter.

   Although the UNCRC provides that minors are entitled to access public education, public health services and social welfare, and to not be subject to economic exploitation, these generally will not be an issue when deciding citizenship applications. This is because:

   · there is no discretionary power to refuse citizenship applications under Division 2, Subdivisions A (Descent) and AA (Hague Convention or bilateral arrangement adoption); and

   · most applicants under Division 2 Subdivision B (Conferral) are permanent residents, who have appropriate access to education, health and social welfare services, and when in Australia are covered by the same labour laws as Australian citizens.

   Weighing the best interests of the child against other matters

   Consistent with Australia’s international human rights obligations, the ‘best interests of the child’ is a primary consideration in actions concerning children, where there is the discretion to do so. These obligations do not require that the best interests of the child be the only primary consideration, or be considered at all where there is no discretion under legislation. The best interests of the child must be weighed with or against any other primary considerations in the specific circumstances. Other primary considerations may include (but are not limited to):

   · the objectives of the relevant provision/s in the Act;

   · community protection; and

   · community expectations.

   This means that although it may be assessed that a particular decision would be in the best interests of a child, it does not automatically follow that it is the decision that should be made. For example, it may be in the best interests of a child for a delegate to decide not to revoke an associated person’s Australian citizenship under section 34 of the Act but, depending on the particular facts and after taking into account the other primary considerations, the decision-maker may conclude that revocation of the person’s citizenship is the decision that should be made. This involves a weighing of the competing interests. For example, a severe detriment to the child might outweigh a minor fraud offence by the parent, whereas if it is only marginally in the child’s best interests that citizenship not be revoked, that may be outweighed by the parent’s conviction for a serious offence.

3. Under this CPI the Tribunal is directed to have regard to factors such as the maintenance of the family unit, the right of the child to preserve their sense of identity, including nationality and their integration into the Australian community. The CPI also makes it clear that while the best interests of the child must be considered carefully, even positive findings about such interests do not lead to automatic outcomes and may be balanced against a variety of other relevant factors.

4. Consideration of the issues outlined in the CPIs must necessarily be influenced by a number of facts confronting the Tribunal. These include the following:

   ·Neither of the parents is currently resident in Australia and although the father lived here for some seven years while studying (1996-2002[23]), it does not appear that either of the parents have lived in Australia, other than for a few days at any other time.

   [23] According to oral evidence by Mrs Nguyen.

   ·The daughter applicant has spent only two weeks in Australia and has not been in the country since May 2018.[24]

   [24] Daughter’s Tribunal documents at [140].

   ·The son applicant has spent 4 weeks in Australia and has not been in the country since October 2019.[25]

   ·The parents are determined to remain in Viet Nam to look after their elderly family members and there is no indication as to how long this will be necessary.

   ·The proposed arrangements put to the Tribunal by the mother indicate that the children would spent 3 weeks each year in Sydney, residing with family friends until they reach approximately age 12 (Year 7) whereupon they would be sent to Australia to live on a more permanent basis until they complete their education.

   ·The mother makes a very strong submission to the effect that the children suffer disadvantages arising from their current situation which she describes as follows:

   Because of the sacrifices we have made, our children are so different from their peers in Vietnam and feel like they no longer belong. They do not go to school full-time like other students. In the past, when they were with SDEPS in Australia, they were proud and had the feeling that they truly belong to a prestigious organization. Now they often keep silent when they are asked by others why they do not go to school full time like other students. My children are viewed as outsiders and are living with the awkward and uncomfortable feeling that their parents and themselves are not like the others, and that we do not fit in to what everyone else is doing.[26]

   ·There is evidence to the effect that the children are not in the best of health.[27] In her statement of 25 November 2020, the mother writes:

   These issues have been getting worse as this application has progressed, and in November 2020, I took my children to have medical testing. Generally, my daughter is experiencing Anxiety disorders and my son is experiencing Attention deficit hyperactivity disorder (ADHD). Unfortunately, almost all psychological disorders in Vietnam are not paid enough attention, not treated well and may lead to more severe situations because of the lack of knowledge, lack of human resources and also lack of financial resources, and so trying to get proper care and treatment for my children is very difficult. 

   My daughter has been diagnosed with a urinary rhythm disorder that is associated with her anxiety disorder. This diagnosis was made by the National Pediatric Hospital and medication was prescribed. To cross check, I also took her to another public hospital, which is 103 military hospital and the doctor, who is the Head of the Department of Psychiatry there concluded the same. They both indicate that she needs to take medicines. 

   My son has had problems with Attention deficit hyperactivity disorder (ADHD). I really did not think he had these problems until the healthcheck. His situation is quite serious that they indicate that he should take some medicines, which I could not imagine they would do so. They did not indicate any psychological treatment and did not instruct me about how to treat him at home or about where I can find documents about this disease. 

   I am also very concerned that both of my children are incredibly short for their age, despite my husband and I being average height. I am worried that this is connected to how much pressure they are under and that they don’t get enough sleep due to our tight schedules.[28]

   [25] Son’s Tribunal documents at [142].

   [26] Thi Thu Trang Nguyen, Statement 13 July 2021 at [6].

   [27] Applicant’s Tender Bundle (26 November 2020) at [8], [235],[250], [260], [271].

   [28] Applicant’s Tender Bundle (26 November 2020) at [8].

5. The Tribunal notes further that there is no realistic way of determining when any of the members of the family might be able to travel to Australia in the light of the current pandemic restrictions. The permanent resident status of the parents does not give them an automatic right of return to Australia even if the situation with their elderly parents were to resolve itself so as to make that a possibility. The Tribunal appreciates that this uncertainty places on all members of the family a degree of psychological pressure, strain and stress, but in these current circumstances that does not distinguish these applicants from thousands of other people in similar or analogous circumstances.

   CONSIDERATIONS

6. There is no gainsaying the fact that the Applicants’ mother has made a very carefully considered decision that, as she perceives it, the best interests of her children would be served by their being able to study and gain educational qualifications in Australia. She has assessed alternatives and decided upon this course of action. In pursuit of this she has arranged a rigorous study programme for her children based upon the Australian education curriculum. She has given careful though to matters of travel, timetables, the enrolment in schools and the arrangement of accommodation in Australia.

7. The Tribunal accepts that both parents have a genuine desire to relocate permanently from Viet Nam to Australia and they have established a “close and continuing association”[29] with Australia to the extent that they have bought property and made plans for future employment based upon their previous educational and employment arrangements through Swinburne University. The mother has also established a business which is dependent upon the development of those close and continuing associations.

   [29] As per the requirements of section 21(2)(g) of the Act.

8. There is, however, no indication of how or when these aspirations can be fulfilled. Pre-empting any move to Australia is the parent’s commitment to remain in Viet Nam as long as their family responsibilities require.

9. As such there is no immediate and realistic prospect of the parents being able to qualify as “usually resident” in Australia as the CPI requires. This is neither their fault nor their desire. It is however the fact of the matter.

10. For the Tribunal to depart from following this requirement of the CPI there must be a “cogent reason” to do so. Such a reason can only be established if it is to be found “in the best interests of the child”.

11. The Tribunal has given consideration to the following matters in seeking to determine what is in the best interests of the two minor Applicants:

    ·Keeping the family unit together: it is axiomatic that the best interests of a child are served where, provided there is no physical or mental threat to the child from within their own family, they are able to be  nurtured and supported by two parents in a family unit which is kept together. In this instance the proposal before the Tribunal involves the children spending 3 months in New South Wales (with or without a parent) over each of the next few years until they are sent to live more permanently in Australia from ages around 12 to 16 years where they will reside with family friends.

    ·At some stage if this all occurs as per the plans submitted, the parents will seek to live in Australia but have selected to live in Victoria which would result either in the continued separation of the family, or in some dislocation to the children’s education were they to move interstate from New South Wales.

    ·Apart from being separated as a family unit for educational reasons, the Tribunal notes that the children would be deprived of direct parental support in responding to their identified health needs. This seems particularly relevant in respect to the attention deficit and anxiety disorders of the children. Although it accepts that the medical facilities in Australia may be better than those in Viet Nam, the Tribunal cannot imagine that it would be in the best interests of the children to have to face their psychological problems deprived of the direct support of their parents. Indeed, it may be more appropriate for childhood psychological disorders to be addressed by services which are culturally sensitive to the values and norms of Vietnamese life and culture rather than those of an alien environment.

    ·Preserving identity or nationality: The Tribunal cannot but be concerned at the suggestion that the Applicant children are being prevented from gaining an understanding that they are, and always will be (regardless of their citizenship status), Vietnamese by birth and original nationality. This is not in their best interests. At some future stage they may become Australian citizens and they may choose to identify fully as “Australians” but at this stage of their lives, the Tribunal believes that it is not in their best interest for them to have no sense of who they are which is the impression given by the evidence put to the Tribunal by their mother.

    ·Suffering hardship or disadvantage: The Tribunal has set out above the statement by the Applicant’s mother of the extent to which her children “no longer feel they belong” and that they are “viewed as outsiders”.  This is a terrible situation for the children to be in and has led to what the mother described in her evidence to the Tribunal as being akin to “abuse” or “maltreatment”. It is not for the Tribunal to pronounce on how parents should bring up their children but it does not disagree with the statement of the Respondent that: “several of the alleged hardships and disadvantages outlined by the Applicants are simply a result of their parents’ attempts to achieve citizenship status for the applicants.”[30]

    ·Integration into the Australian community: There is no degree of integration into the Australian community by either Applicant. At best they have spent between 2 and 4 weeks in Australia in all of their lives and were last in the country two or three years ago. This matter cannot be given any consideration. Although the Applicants’ mother has taken the action of having them educated (at least in part) in line with the Australian education system, this does not necessarily equal a form of integration into the Australian community, and if anything, has interrupted the ability of the Applicants to integrate fully into the Vietnamese community of which they are a part.

    [30] Respondent’s SFIC at [35(a)].

    DISCUSSION

12. It follows from the Tribunal’s considerations of the best interests of the child that they do not establish a “cogent reason” why any of the other requirements under the Act or under the CPIs should be disregarded.

13. If anything, the Tribunal’s findings suggest that it is just as likely, or perhaps even more likely that the best interests of the children are served by their remaining in Viet Nam with their parents and within the bounds of Vietnamese society until the entire family is able (all other obstacles having been overcome) to relocate to Australia.

14. In her evidence to the Tribunal the mother made it clear that were this application to be refused she would, in effect, double down on the course of action that she has embarked upon for her children and continue to pursue her dream of having her children educated to Australian standards.

15. The Tribunal makes no comment on that evidence and cannot allow itself to be influenced by it.

16. No cogent reasons have been presented to the Tribunal to persuade it to depart from the policy as laid down in the CPIs and the Tribunal propose to give recognition and effect to them.

    DECISION

17. The decision under review is affirmed.

I certify that the preceding43 (forty-three) paragraphs are a true copy of the reasons for the decision herein of Chris Puplick AM, Senior Member

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

Associate

Dated: 9 Aug 2021

Date(s) of hearing:	20 July 2021
Solicitors for the Applicant:	Mr M Simmons, MSM Legal
Solicitors for the Respondent:	Mr A Ray, Calyton Utz