PAUL Applicant And MINISTER FOR IMMIGRATION AND CITIZENSHIP
[2010] AATA 411
•4 June 2010
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2010] AATA 411
ADMINISTRATIVE APPEALS TRIBUNAL )
) No 2008/3316
GENERAL ADMINISTRATIVE DIVISION ) Re AISHIK ANTAR PAUL Applicant
And
MINISTER FOR IMMIGRATION AND CITIZENSHIP
Respondent
DECISION
Tribunal The Hon B Tamberlin QC, Deputy President Date4 June 2010
PlaceSydney
Decision The decision under review is set aside and in substitution it is decided that the Applicant’s application for Australian citizenship is granted. ...................[sgd]...........................
The Hon B Tamberlin QC
Deputy President
CATCHWORDS
IMMIGRATION AND CITIZENSHIP- Applicant under 18 years of age – whether citizenship should be conferred despite applicant not holding permanent visa – consideration of best interests of child – whether circumstances exceptional or unusual – decision under review set aside
LEGISLATION
Australian Citizenship Act 2007; s 21(5), 24(2),
OTHER INSTRUMENTS
Australian Citizenship Instructions
REASONS FOR DECISION
4 June 2010 The Hon B Tamberlin QC, Deputy President Introduction
1. These reasons concern an application by Aishik Antar Paul, now aged 10 years, to review a decision of the Minister for Immigration and Citizenship (the Minister) under s 24(2) of the Australian Citizenship Act 2007 (“the Act”), made on 14 June 2008 to refuse his application for Australian citizenship. This decision was made on the ground that he is not a permanent resident of Australia, and fails to meet the policy requirements that he be the holder of a permanent visa at the time of application.
2. The decision of the Minister was affirmed by Deputy President Walker of this Tribunal in a decision made on 13 February 2009. This was appealed to the Federal Court and set aside by consent, on the ground that the Deputy President had erred in law by not treating the welfare of the child as a “primary consideration” in accordance with Departmental policy instructions.
3. The matter has now been remitted to me for re-determination in accordance with law.
Legislation and Policy
4. Section 21(5) of the Act provides that a person is eligible to become an Australian citizen if the Minister is satisfied that the person is under 18 years at the time the application was made. There is of course no dispute in relation to the age requirement.
5. The Department and this Tribunal are also subject to policy requirements contained in the Australian Citizenship Instructions made under the Act (“the citizenship instructions”). Relevantly, the citizenship instructions provide that a person under the age of 16 applying individually, in his or her own right, would usually be approved for citizenship if they hold a permanent visa. In circumstances where an applicant does not meet this policy requirement, the decision-maker 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 exceptional nature of the circumstances. The circumstances need to be very unusual to warrant approval of an application outside policy.
6. Under s 24(2) of the Act the Minister can refuse to approve a person becoming an Australian citizen despite the fact that the person is eligible to become an Australian citizen under s 21(5) of the Act.
7. It is common ground that at the relevant time, for the purposes of the present case, the citizenship instructions in relation to a person under 18 years provided:
“Best interests of the child
The best interests of the child are to be considered as one of the primary considerations when assessing an application. This consideration only applies if a child is or would be less than eighteen years of age at the time of decision on the application and the child is living in Australia.” [Emphasis added].
The Issue
8. The issue for the Tribunal to consider is whether it is appropriate to confer citizenship on the Applicant, notwithstanding that the Applicant is not a permanent resident. In addition, the Tribunal must determine whether the Applicant’s circumstances can be said to be exceptional and unusual so as to warrant approval of an application outside policy.
9. The citizenship instructions indicate the primary considerations that need to be taken into account are the best interests of the child and the policy requirements themselves. No indication is given as to the relative weighting or importance which attaches to each of these primary considerations. Where these considerations conflict and how they are to be evaluated will depend on the particular facts of each case, along with other relevant circumstances.
Factual Context
10. The Applicant was born in Australia in December 2000 to non-citizen parents. The Applicant does not have a permanent visa. They are in Australia on Bridging visas pending determination on an application to the Minister under s 417 of the Migration Act 1958 (Migration Act). Under that provision the Minister has a discretionary power to make a decision favourable to them including allowing them to remain here.
11. Counsel for the Applicant contends that there is a likelihood that the parents will be deported from Australia to Bangladesh or India pursuant to the Migration Act and therefore the application should proceed on the basis that the parents will not continue to live in Australia.
12. The Applicant’s father, Mr Paul, is a holder of a valid Bangladesh passport which is now held by the Minister. He arrived in Australia using an Indian passport which he claims to have obtained fraudulently. He later tendered a series of documents which included a Bangladesh birth certificate, passport and academic documents from Bangladesh. Those documents, on their face, were certified by the Bangladesh authority to be genuine and the certification is attested by the Bangladesh High Commission in Canberra to be authentic. Mr Paul’s claim of Bangladesh citizenship was accepted by the Refugee Review Tribunal in a decision on 31 March 1998. In a later decision, the Refugee Review Tribunal concluded that he was not a citizen of Bangladesh but did not make any external investigation of that fact. Both these decisions stand and these findings have not been quashed.
13. The nationality of the Applicant’s parents is not clear. The evidence provides indications that they may be either Bangladeshi or Indian, or even alternatively that the father may be Bangladeshi whilst the mother may be regarded as having Indian nationality. The case raises issue as to the welfare of the child, and indeed of the parents, insofar as they impact on the child’s welfare if they are all returned to either Bangladesh or India. In the circumstances of this case, it is not necessary to finally determine the nationality of the parents because the child’s best interests would be detrimentally affected if he were to live in either country.
14. In these circumstances, the approach I will take will be to treat the relevant background country, for the purpose of assessing the best interests of the child, as being either India or Bangladesh.
15. There is also some doubt raised as to whether the parents are formally married, however they have now been living together for many years. They claim to be formally married and the evidence satisfies me that they are certainly in a marriage like relationship. Any doubt as to whether they are formally married is of no importance in this case.
16. The medical evidence establishes that the Applicant’s mother is severely ill, and suffers from an extreme level of arthritis which renders her incapable of carrying on any significant work and income earning activity. She is on medication that severely affects her immune system and exposes her to the risk of disease. The situation appears to be incurable. She is in constant pain and is under close and intense treatment with pharmaceuticals to enable to endure her condition. The evidence establishes that these treatments and products are extremely expensive.
17. The Applicant’s father also suffers from arthritis, but in a less severe form. In a report of Dr Portek dated 27 November 2009, he indicates that the father has difficulty pursing his activities of daily living, and his capacity to pursue full time employment is limited by his active rheumatoid disease at present. There is some possibility with biological therapy that his disease may improve and he may be able to pursue full time employment, but it is unlikely that his disease will remit spontaneously, and he will require disease modifying biological therapy and close monitoring of his treatment.
18. There is evidence from Mr and Mrs Hai who first met the parents and the Applicant in about December 2000 and later became very close friends. Both Mr and Mrs Hai provided statements dated 16 February 2010 and provided oral evidence during proceedings. Mr and Mrs Hai have known the Applicant since he was a baby and they have two children of their own, a 10 year son and five year old daughter. Mrs Hai is unable to have any more children. She runs a licensed family care day centre from her home at Banksia in the state of New South Wales which provides all day care for young children. She currently cares for about five children aged between 11 months and two years old. Mrs Hai’s husband is a self-employed graphic designer and they own and run a printing business at Marrickville. She arrived in Australia in September 2000 shortly before the couple befriended the Applicant’s parents.
19. Mr and Mrs Hai have agreed to take parental responsibility for Aishik Paul if he obtains citizenship and if his parents are unable to stay in Australia and are unwilling to take him with them. There is provision for parenting orders under the Family Law Act 1975 under which persons can assume legal responsibility for a child. They say the reason they have so decided is to repay their friends for their kindness to them and they believe they can provide a safe, secure, healthy, loving and happy home for the Applicant to grow up in if the parents are forced to leave Australia. The parents agree that if they are forced to leave Australia they want the Applicant to live with the Hai family. They currently look after him and know him well.
20. The Applicant is the closest friend of the 10 year old son of Mr and Mrs Hai and he also gets on well with their daughter. The Hai’s evidence is that they are financially stable and can accommodate another child. They indicate that they have gross income in excess of $2,000 per week. I have seen both Mr and Mrs Hai in the witness box and have listened carefully to their cross-examination. I am satisfied that they have a genuine affection and care for the Applicant and will look after him if the parents are required to leave Australia.
21. I have also seen the Applicants’ parents in the witness box under cross-examination. Having regard to their evidence and the medical evidence adduced, I am satisfied that they both suffer from a severely debilitating arthritic condition, and in the case of the mother the disease is much more advanced and debilitating. I am also satisfied that the father is practically prevented by his rheumatic condition from working in any capacity other than as a supervisor-chef or something similar which does not involve much movement or activity. This is a serious restriction on his ability to earn a living.
22. Detailed country information is before me which indicates that if the Applicant’s parents are deported to either Bangladesh or India the likelihood is that they will be unable to properly look after the Applicant having regard to the expense and practical unavailability of medicines necessary to treat their condition, and that this will adversely affect the Applicant’s welfare. I am satisfied that it is also unlikely that the father will be unable to find satisfactory employment which would enable him to purchase the necessary treatment in either India or Bangladesh, and pay living expenses, and that he will find it extremely difficult to find any type of work. In consequence of this, it is likely that the Applicant if he returns to either Bangladesh or India with his parents will suffer from a lack of proper attention. In addition, country information before the Tribunal provides evidence of the prevalence of child labour and other dangers to a young child growing up in either India or Bangladesh, and a possible danger to young children whose parents cannot look after them.
Reasoning and Conclusions
23. The first question for consideration is whether there are “very unusual or exceptional circumstances” in the present case, which could justify a departure from policy.
24. The Minister contends there are no such circumstances. The Applicant submits that his circumstances are very unusual and exceptional. In my view there are very unusual and exceptional circumstances in this case.
25. First, the application is made in circumstances where the Applicant’s parents are subject to a real possibility that the Minister will make a decision that they must return to either Bangladesh or India.
26. Second, the parents are both substantially disabled. In the case of the mother she is in need of expensive and extensive medical treatment and therapy. In the case of the father, the position is less serious but it significantly impedes his ability to find reliable remunerative employment as a working cook or chef. On the material before me, it appears that there will be very limited employment for a supervisor chef who is not actively involved in preparation of meals if he is deported.
27. Third, the child is 10 years of age and has been brought up in the Australian culture and has been educated here.
28. Fourth, Mr and Mrs Hai are close friends with whom the Applicant has a strong bond, such that they are willing to take parental responsibility for the Applicant in the event that his parents are returned to Bangladesh or India. I am satisfied that they are genuine and have the capacity and desire to bring up the Applicant in a good loving family, with the attendant benefits insofar as education and opportunity in Australia are concerned. This in itself presents a very unusual and exceptional circumstance.
29. Fifthly, the best interests’ of the child is a primary, and extremely weighty, factor in this case. Notwithstanding that if the parents are returned to the Indian sub-continent there would be a separation from his parents. I consider that his best interests and welfare is the most important factor in this case. If he remains in Australia I am satisfied that he will have a higher, and healthier standard of life than on the Indian sub-continent with his two ill parents who cannot look after him.
30. Finally, I consider the disruption to the child’s education and cultural development would be severe if he is returned to the Indian sub-continent, although I appreciate that he has been brought up in a family and with friends who have connections with the culture of that area. The substantial cultural change and the linguistic transition will make it more difficult for him to fit into Indian or Bangladeshi society.
31. I have been referred to possible dangers, if the Applicant is returned to Bangladesh, having regard to general country information, as to the prevalence of child labour and trade in children. I also note the submission on behalf of the Applicant as to the difficulty of his parents being able to find remunerative employment, which would enable them to provide satisfactorily for his accommodation, education and upbringing, taking into account that they will need sufficient funds with which to live and obtain treatment and medications for their conditions. It is not possible to precisely quantify the likelihood of these dangers eventuating in the present case, but there is a real and present danger based on the country information of these problems arising and the Applicant being left to cope as best he can.
32. There was also evidence in the form of country information as to the stigma which can attach on the Indian sub-continent to persons who have physical disabilities. There was some debate as to whether the disabilities of the parents are such as to technically constitute a “physical disability”, but I am satisfied that it would become manifest they were suffering from severely debilitating health conditions, and there is a real danger that some stigma could attach which would be a further disadvantage, not only to the parents but also to the Applicant in either country.
33. Counsel for the Minister submits that in deciding whether to grant citizenship considerable weight must be given to the fact that under s 21 of the Act as it now stands, although not applicable in this case, a person under 18 years is only eligible to become an Australian citizen if the Minister is satisfied that the person is a permanent resident both at the time when the minister made the application and when the decision of the Minister is made on the application. This present statutory requirement of permanent residence was not a statutory requirement under the previous provisions. Counsel submits that this change in the law is an expression of current policy which should be applied and, although not binding on the Tribunal, it must weigh strongly in favour of refusing the application having regard to the fact that it is in accordance with the policy guidelines previously in existence and reinforces that policy.
34. I have taken this amendment into consideration in evaluating the relevant matters. However, the present Applicant is entitled to be treated in accordance with the law as it previously stood and taking into account his best interests and the other relevant considerations referred to earlier, together with the very unusual and exceptional circumstances, I consider the policy that underpins the amendment to be outweighed by those considerations in this case.
35. Having regard to the forgoing, I am satisfied that in this case there are very unusual or exceptional circumstances which justify the conclusion that the policy requirement of permanent residence in respect of the Applicant is not appropriate to apply in the circumstances. I am also satisfied that it is clearly in the best interests of the Applicant that he should be granted Australian citizenship. I am also satisfied that if he remains in Australia he will be cared for in a loving environment by Mr and Mrs Hai and their family with the capacity to allow him to enjoy the benefits of being brought up in this country, as opposed to the disadvantages he is in danger of suffering if returned to either Bangladesh or India.
36. I consider that greatest weight should be given to the best interests of the Applicant in the circumstances of this case and that his Australian citizenship application should be granted.
37. Accordingly, I set aside the decision under review and substitute a decision that the application of the Applicant for Australian citizenship is granted.
I certify that the 37 preceding paragraphs are a true copy of the reasons for the decision herein of The Hon B Tamberlin QC, Deputy President.
Signed: .....................................................................................
Associate B DhanasarDate/s of Hearing 22 and 23 February 2010
Date of Decision 4 June 2010
Counsel for the Applicant Mr l Karp
Solicitor for the Applicant Legal Aid Commission of NSW
Solicitor for the Respondent Mr G Johnson, DLA Phillips Fox
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