Park and Minister, Immigration & Citizenship

[2010] AATA 896

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2010] AATA 896

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No 2010/1579

GENERAL ADMINISTRATIVE  DIVISION		)
Re		Yun Jae PARK

Applicant

And Minister, Immigration & Citizenship

Respondent

DECISION

Tribunal M D Allen

Date15 November 2010

PlaceSydney

Decision  The decision under review is AFFIRMED.

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

M D Allen, Senior Member

CATCHWORDS

IMMIGRATION & CITIZENSHIP – Application by child under 16 years for grant of Australian citizenship.  Nothing unusual in his circumstances and his best interests did not favour grant of citizenship.  Decision under review affirmed.  

LEGISLATION

Australian Citizenship Act 2007, Ss21(5), Ss24(2)

Australian Citizenship Instructions, Chapter 5.

CASES

Re Kim and Minister for Immigration and Citizenship [2010] AATA 640

Re Pak and Department of Immigration and Citizenship [2010] AATA 157

REASONS FOR DECISION

15 November 2010 M D Allen               

1.By application made 21 April 2010 the Applicant sought review of a decision by a delegate of the Respondent on 30 March 2010 to refuse his application for Australian citizenship by conferral.

2.The Applicant is aged 15 years, being born in March 1995 in Korea.  He entered Australia on 24 June 2004.  Currently he is the holder of a Business (Subclass 457) Visa as a dependent of his father.  This visa, as is his father’s, is valid until 19 May 2012.

3.On 5 November 2009, the Applicant lodged an application for citizenship by conferral.  At the time of his application, subsection 21(5) of the Australian Citizenship Act 2007 (“ACA”) read:

“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”.

4.The power to approve, or to refuse to approve, a person becoming an Australian citizen is set out in section 24 of the ACA which provides:

“(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.

Note:  The Minister may cancel an approval: see section 25.

(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).”

5.Although Ss24(2) ACA does not state the factors that may be taken into account in the exercise of the discretion to approve or refuse to approve an application for citizenship, guidelines, namely the Australian Citizenship Instructions, have been published as a matter of Government policy.  As pointed out by Buchanan J in Re Pak and Department of Immigration and Citizenship [2010] AATA 157 at paragraph two:

“The published policy states guidelines to be employed in the case of persons who are eligible under s21(5) of the Act.  It was accepted that I should follow the guidelines unless there was good reason not to do so (Re Drake and Minister for Immigration and Ethnic Affairs (No.2)(1979) 2 ALD 634 per Brennan J)”

6.I am aware that the lawfulness of the Australian Citizenship Instructions has been challenged in an Appeal to the Federal Court from the decision of the Tribunal in ReKim v Minister, Immigration and Citizenship [2010] AATA 640, however as the Federal Court has not dealt with that appeal I see no reason not to apply the said Citizenship Instructions in this matter.

7.It was common ground between the parties that the Applicant did not meet any of the policy guidelines in respect of children under the age of 16 so that any consideration of the grant of Australian citizenship to the Applicant had to be considered in the light of the following statement in the said Instructions, namely:

“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.  The circumstances would need to be very unusual to warrant approval of an application outside policy”.

8.Initially the Applicant’s case was put on the basis of his inability to adjust to Korean society and to undertake higher education in that country because of his lack of skills in the Korean language and his time out of the country.

9.Although the Applicant conceded that he spoke Korean at home to his parents he has been in Australia, and in the Australian education system, since arriving in 2004.  I fully accept that were he to return to Korea he would have insurmountable difficulties in finding a place in the Korean education system and indeed adjusting to life in Korea.

10.Currently the Applicant is attending Canterbury Boys High School and a report from the deputy principal of that school refers to an exemplary student who is reliable, motivated and energetic and who, in his relationship with his peers and teachers, was friendly confident and respectful.

11.As this matter developed at hearing however, a further ground was relied upon by the Applicant.  As I understand the argument he contends that his father’s 457 visa has the probability of being cancelled, and this will result in his parents being forced to return to Korea where prospects of employment are poor.

12.The Applicant’s father gave evidence.  He stated that the painting company of which he is an employee has had a considerable decrease in work.  He pointed out that for the tax year ending 30 June 2009 his taxable income had been $41,706.00 whereas his income for the 2009-2010 tax year was only $13,200.00.

13.The director of the painting company is his current sponsor for his 457 visa, however that person has told him that he can not continue the sponsorship as there is no work.

14.No evidence was called from the father’s employer/sponsor and I am uncertain as to the actual state of affairs regarding the father’s sponsorship.  The father also gave evidence that it would not be possible for him to find another sponsor within the Korean community as that person would expect payment for his “trouble” and he did not have the means to make any such payment.

15.The father has not sought to obtain a non-Korean sponsor.

16.The concept of what might constitute the best interests of a child is one of broad application encompassing all matters relevant to a child’s upbringing.  Matters such as the child’s care, welfare and development are clearly relevant.  (See Family Law in Australia, 7^th Edition, at page 281).

17.In my opinion this application has been made prematurely.  The Applicant is still living with his parents and attending school.  The father’s visa has not been cancelled, and there is no evidence before me that his sponsor is taking any action to cease his sponsorship of the father.  Neither the Applicant nor any member of his family is under a current threat of removal from Australia.

18.I accept that the father is currently in straightened financial circumstances but the Applicant’s mother has found employment.  I do not regard these circumstances as unusual.

19.I find that the best interests of the child do not require that he be granted Australian citizenship.  As Deputy President Handley pointed out in Re Kim and Minister for Immigration and Citizenship supra, quoting Buchanan J in Re Pak supra, 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.

20.Likewise in Re Pak supra and Re Kim supra it was stated that the fact 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.

21.Similarly the Australian Citizenship Instructions state that personal wants and aspirations generally do not constitute hardship.  That citizenship would relieve the Applicant’s family from paying school and later university fees is not a matter that should be held to constitute hardship.

22.In this matter the Applicant has been unable to demonstrate unusual circumstances nor that his best interests favour that he be granted Australian citizenship at this time.

23.The decision under review is AFFIRMED.

I certify that the 23 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member M D Allen.

Signed:         .............[sgd]................................
  K. Lynch, Associate

Date of Hearing   01 November 2010
Date of Decision   15 November 2010
Solicitor for the Applicant            Mr J Jang, Jacobs Legal
Solicitor for the Respondent       Mr G Johnson, DLA Phillips Fox