Re Arachchige and anor and Minister for Immigration and Citizenship
[2011] AATA 740
•21 October 2011
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2011] AATA 740
ADMINISTRATIVE APPEALS TRIBUNAL )
)No. 2010/3215,
)2010/3216
GENERAL ADMINISTRATIVE DIVISION ) Re CHANILKA AMANTHI JAYOKODI ARACHCHIGE and
THARINDU DEEMANTHA JAYOKODI ARACHCHIGEApplicants
And
MINISTER FOR IMMIGRATION AND CITIZENSHIP
Respondent
DECISION
Tribunal G. D. Friedman, Senior Member Date 21 October 2011
Place Melbourne
Decision The Tribunal affirms the decisions under review.
[sgd] G D Friedman
Senior Member
CITIZENSHIP - applicants aged under 16 years at time of application – whether citizenship should be conferred despite applicant not holding a permanent resident visa – policy considerations – whether full circumstances are unusual
Australian Citizenship Act 2007 s 21(5), 24(2)
Budilay v Minister for Immigration and Citizenship [2011] FCA 508
Re Drake and Minister for Immigration and Ethnic Affairs (No.2) (1979) 2 ALD 634
Re Hong and Minister for Immigration and Citizenship [2011] AATA 243
Re Kim and Minister for Immigration and Citizenship [2010] AATA 640
Re Pak and Minister for Immigration and Citizenship [2010] AATA 157
Singh v Minister for Immigration and Citizenship [2011] FCA 685
REASONS FOR DECISION
21 October 2011 G. D. Friedman, Senior Member 1. Tharindu Jayakodi Arachchige was born in Sri Lanka in 1994 and his brother Chanilka Jayakodi Arachchige was born in Sri Lanka in 2000. They first arrived in Australia with their parents in April 2004 on visitor visas and stayed for about four weeks. They returned to Australia in December 2005 on student visas and have been here since. In October 2009, when Tharindu was aged 15 years and Chanilka was aged 9 years, they applied for Australian citizenship. On 30 June 2010 a delegate of the Minister refused the applications, and Tharindu and Chanilka seek review of the decisions.
RELEVANT LEGISLATION AND POLICY
2. Section 21(5) of the Australian Citizenship Act 2007 (the Act) allows the Minister to confer Australian citizenship on persons who are less than 18 years old.
3. At the time of the applications for citizenship, it was not mandatory for an applicant under 18 years of age to be a permanent resident to be granted citizenship. Subsequent amendments to the Act now set a pre-requisite of permanent residence for applicants under 18 years of age.
4. The respondent has issued policy guidelines known as Australian Citizenship Instructions (ACIs) in relation to such applications. Chapter 5 of the ACIs provides guidance relating to the exercise of the discretion under s 24 of the Act in relation to applicants eligible under s 21(5) of the Act. The ACIs state:
For applications received before 9 November 2009, you will need to refer to the Act and ACIs in effect immediately before 9 November 2009.
The ACIs in effect at the date of the applications for citizenship state:
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 requirements set out below.
5. The policy relating to applicants for citizenship under 16 years of age at the relevant time was as follows:
Children under the age of 16… would usually be approved under section 24 if they meet the following policy guidelines:
• hold a permanent visa, including an adoption visa; and
•are under the age 16 years of age when applying, are living with a responsible parent, who is an Australian citizen and consents to the application; or
•are under 16 years of age when applying, and living with a responsible parent, who is not an Australian citizen and consents to the application, and the child would otherwise suffer significant hardship or disadvantage [refer to Attachment B - for definition];
…
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.
6. The Tribunal is required to have regard to policy unless there are cogent reasons for not doing so (Re Drake and Minister for Immigration and Ethnic Affairs (No.2) (1979) 2 ALD 634). In Budilay v Minister for Immigration and Citizenship [2011] FCA 508 Buchanan J stated at [32]:
First, there was no error in the AAT being guided by the ACIs provided it did not abdicate its function of making an independent assessment of the applications for citizenship and provided it did not overlook the fact that the ACIs themselves were expressed to be guidelines, were not to be applied inflexibly and were not to constrain the exercise of delegated powers under the Act. ... Secondly, … the AAT was not obliged to “decide” what the best interests of each child were or might be. At the highest, the AAT was obliged to treat the best interests of the child as a primary consideration. ...
7. In Singh v Minister for Immigration and Citizenship [2011] FCA 685 Marshall J stated at [12]:
…
·the Instructions constitute a statement of departmental policy to which an administrative decision maker is entitled to have regard…
·as the Instructions set out policy considerations which the explanatory memorandum suggested were appropriate considerations, being considerations which do not dictate how the discretion is to be exercised but provide guidance in its exercise, they may be properly considered in the exercise of the s 24(2) discretion. They are not ultra vires…
ISSUES
8. The issues before the Tribunal are:
· Do Tharindu and Chanilka meet the policy guidelines for children under the age of 16 years? If not:
· Are the full circumstances of the case, including the best interests of the children, of an unusual nature and therefore is approval of the application outside policy warranted?
DO THARINDU AND CHANILKA MEET THE POLICY GUIDELINES FOR CHILDREN UNDER THE AGE OF 16 YEARS?
9. There was no dispute that Tharindu and Chanilka were under the age of 16 when applying for Australian citizenship and that they live in Melbourne with their parents (who are not Australian citizens). However, neither holds a permanent visa. Therefore, they do not meet the policy guidelines for children under the age of 16 years.
ARE THE FULL CIRCUMSTANCES OF THE CASE, INCLUDING THE BEST INTERESTS OF THE CHILDREN, OF AN UNUSUAL NATURE AND IS APPROVAL OF THE APPLICATION OUTSIDE POLICY THEREFORE WARRANTED?
10. Mr A Jayokodi Arachchige and Ms K Jayodi Arachchige, the children’s parents, told the Tribunal that the circumstances are of an unusual nature and the applications warrant approval. In a statutory declaration, the parents stated that since arriving in Australia in 2005 to enable Ms Jayodi Arachchige to undertake a diploma course in community welfare they have made sacrifices and worked hard to adapt to a new way of life in Australia for the sake of a better future for their children. They both work full-time in the airline catering industry.
11. Ms Jayokodi Arachchige told the Tribunal that she has completed her diploma and has applied for a Skilled-Graduate subclass 485 temporary visa to enable the family to remain in Australia. The application has been refused but she has sought review by the Migration Review Tribunal and is awaiting a decision. She said that, if unsuccessful and she and her husband are required to leave Australia. However, on their return to Sri Lanka she would apply for a student or other type of visa to resume living in Australia.
12. The parents stated that, although there are no immediate family members residing in Australia, Tharindu and Chanilka have established substantial ties with Australia during their formative years and have embraced the Australian culture and way of life, and the boys identify themselves as Australian. Mr and Ms Jayokodi Arachchige emphasised that during the past five years the boys have progressed well academically and have developed strong and consistent peer groups.
13. According to the parents, the boys have little or no recall of their place of birth or of family connections in Sri Lanka. They have adopted Western culture, which would make adjustment to a different culture all the more difficult if they were forced to return to Sri Lanka. The boys do not speak Sinhala, the national language of Sri Lanka. They would face great difficulty leaving a secure and stable English‑speaking environment and adjusting to different education system where the language of instruction is unknown to them. The boys have a limited understanding of Buddhism, which is a fundamental aspect of the Sri Lankan education system. This would disadvantage them and their career prospects; particularly Tharindu as he is further advanced in his secondary education.
14. Ms Jayokodi Arachchige stated that Tharindu and Chanilka have a close relationship with each other and that Tharindu assists with the care of Chanilka on a daily basis, particularly as the parents work long hours. Under cross‑examination, the parents conceded that they speak Sinhala at home. They also agreed that the children have maintained some contact with members of the extended family in Sri Lanka, and that their maternal grandmother visits Australia each year for an extended stay. The parents acknowledged that they have not made any enquiries about the current education system in Sri Lanka or schools that might be appropriate for the boys to attend.
15. The parents emphasised that they would be unable to afford the cost of independent schooling in Sri Lanka, which offers tuition in English. They sold all their assets, including the family home and Mr Jayokodi Arachchige’s motor vehicle spare parts business. Ms Jayokodi Arachchige said she worked as an as an accountant with Sri Lankan Airlines for fifteen years but had resigned from her position to come to Australia. She would not be able to resume that career after an absence of more than five years. Mr Jayokodi Arachchige explained that he would not have the required capital to resume his business. Under cross-examination, the parents agreed that they have not investigated employment prospects in Sri Lanka.
16. Tharindu told the Tribunal that he enjoys living in Australia and is progressing well at school. He has passed all Year 11 subjects so far, and wishes to pursue a university course in aviation in Melbourne after Year 12. He also wants to obtain a private pilot’s licence. He said that he completed Year 6 at a public school in Sri Lanka before arriving in Australia. He explained that he understands basic Sinhala as it is spoken at home by his parents, but cannot read or write in that language, and he replies to his parents in English. Tharindu confirmed that he has a close relationship with his brother and would not wish to be separated from him. He emphasised that the education system in Sri Lanka is different from that in Australia. If he returns to Sri Lanka he would be unable to complete entry requirements for university because of the lack of language skills. As a consequence he feared for his future unless he is permitted to remain in Australia.
17. Chanilka told the Tribunal that he remembers little of Sri Lanka as he was 5 years old when he left that country. He said that he has adjusted well to Australia and enjoys living here. He has made many friends at school, where he is completing Grade 4 at a Catholic college near his home. He stated that he participates in religious studies but not Buddhism. Chanilka confirmed that he understands basic Sinhala but answers his parents in English. He emphasised that he would face significant difficulty if required to return to Sri Lanka, as he is already a year older than most of his classmates because of the timing of his arrival in Australia, and he would need to learn written and spoken Sinhala almost from the beginning. He said that he and Tharindu are close, and he would be unable to cope without his brother.
18. Dr G Akerstein, a psychologist, assessed the effect on the children of a return to Sri Lanka at this stage of their lives. She interviewed them alone and with the family. She also considered school reports and other relevant information. Dr Akerstein noted that Tharindu has lived in Australia since the age of 11, has made good progress at school and is fearful about returning to Sri Lanka. She stated that he has settled in well to the Australian way of life, and has adapted completely to Australian culture and has a promising future. She said that he knows no other educational system. Dr Akerstein concluded that for Tharindu to be re‑located to Sri Lanka at this vital stage in his education and development would place him at severe risk educationally and expose him to potentially significant long‑term emotional problems.
19. Dr Akerstein noted that Chanilka has lived in Australia since the age of 5 and is progressing well at school. She said that he remembers little about Sri Lanka and is unable to read or write in Sinhala. He feels sad about the prospect of returning to Sri Lanka. Dr Akerstein concluded that Chanilka is a young boy who is completely acculturated within the Australian education system. She stated that for him to be re-located to Sri Lanka at this stage would place him at severe risk educationally and psychologically, and would expose him to potentially significant emotional problems.
20. Under cross-examination, Dr Akerstein agreed that she relied on Ms Jayokodi Arachchige’s description of the education system in Sri Lanka when reaching her conclusions. She also agreed that she would be concerned for the welfare of the boys if they were to remain in Australia without their parents, as Chanilka has never been separated from his mother for an extended period, and Tharindu is very young to adopt the role of Chanilka’s carer. She said that there does not seem to be anything particularly unusual or different about this matter as compared to other situations involving children who wish to remain in Australia, although this would depend on the temperament of each child.
21. Dr H Ratwatte, formerly Research Fellow, Melbourne Graduate School of Education, University of Melbourne and currently Senior Lecturer in English at the Open University of Sri Lanka, evaluated the impact of a potential change in the medium of instruction on the children’s educational and cognitive development. She stated that that public education in Sri Lanka is conducted in Sinhala and Tamil. English is taught only in some schools. She said that private schools are well-served by English-based education but that this would be beyond the financial means of Mr and Ms Jayokodi Arachchige. She noted that students must reach an acceptable level of Sinhala before progressing to advanced levels of education.
22. Dr Ratwatte said that Tharindu received his primary education in Sinhala, and learnt English as a second language at school for two years. He is now fluent in spoken English. Dr Ratwatte explained that the change from Sinhala to English appears to have had an adverse impact on his academic progress, and a further change back to Sinhala would have a severe effect on his future academic progress and his cognitive development. He would be unable to enter university until he reaches the required standard of Sinhala, which might take a further 5-6 years, and at that age he would be alienated from his peer group and would suffer significant disadvantage. Under cross-examination, Dr Ratwatte agreed that she did not conduct any formal standardised assessment of Tharindu’s literacy skills in Sinhala.
23. Dr Ratwatte noted that Chanilka has received all his education in English, which is his first language. His knowledge of Sinhala is limited to the domestic sphere, which is of little use in understanding written Sinhala. His parents converse in Sinhala and speak to him in that language in a social context and he replies in English. Dr Ratwatte concluded that from an educational perspective it would not be advisable for Chanilka to make a change from his first language to a weak second language in which he lacked literacy, as this would result in a retardation of his academic progress. She said that a gradual transition would need to be made over several years, but that transitional programs are not available at present in Sri Lanka.
24. Dr J Szyndler, a clinical psychologist, carried out a psychological assessment of the children. She described Tharindu as a well-behaved and adaptable young person who is happy at school in Australia and who does not wish to return to Sri Lanka. Although he has a reasonable command of spoken Sinhala, his literacy skills in that language are weak and this would disadvantage him educationally. He would need to adjust to a different education system and being taught in Sinhala. She acknowledged that Tharindu has some familiarity with the customs and cultural aspects of Sri Lanka. Dr Szyndler stated that if Tharindu were to leave Australia permanently with his parents he may be at risk of developing psychological difficulties as a response to significant educational challenges and social changes. If he were to remain in Australia without his parents, the separation would result in an adverse psychological impact. However, she concluded that Tharindu would be better off remaining in Australia without his parents than returning to Sri Lanka with them.
25. Dr Szyndler noted that reports suggest that Chanilka is settled and happy at school. He sees himself living permanently in Australia. She believed that he speaks Sinhala with his parents at home. He did not attend school in before coming to Australia. He has maintained contact with extended family in Sri Lanka. Dr Szyndler stated that if he were immersed in Sinhala it would not take him long to build up his verbal fluency, although literacy skills would take longer to acquire. She observed that Chanilka is still very emotionally dependent on his parents, particularly his mother; and that a separation would not be in his best interests. Dr Szyndler concluded that Chanilka would be better off returning to Sri Lanka with his parents than remaining in Australia without them.
26. Under cross-examination, Dr Szyndler agreed that she had not considered the relationship between the boys or the impact of separating them as she was not asked to do so. However, she gained the impression that they were close. She also agreed that her conclusions about the effect of separation of the boys from their parents would depend on the length of that separation. She disagreed with Dr Ratwatte’s conclusions about the difficulty of transitional issues in education, to the extent that the boys have some familiarity with Sri Lanka and its language and culture.
27. Mr and Ms Jayokodi Arachchige told the Tribunal that they would prefer to maintain the family unit in Australia. However, as a last resort, if they are required to return to Sri Lanka they believe that the boys would be better off remaining in Australia than returning to Sri Lanka with them, even though there are no close relatives in Australia to provide care. They proposed to leave the boys in Melbourne under the guardianship of Mr K Hapugasdeniya, a work colleague and friend of Mr Jayokodi Arachchige Mr Hapugasdeniya would provide accommodation and financial support, with Tharindu being the day-to-day carer for Chanilka.
28. Mr Hapugasdeniya told the Tribunal that he operates an airline consultancy and has known Mr Jayokodi Arachchige for many years. He confirmed that he is willing to act as the boys’ guardian if the parents are required to return to Sri Lanka and the boys are permitted to remain in Australia. He explained that he is a successful businessman and has the financial means to support the boys by paying their school fees and living expenses. He proposed to accommodate the boys in a house he owns but leases to another work colleague, who has a wife and two children.
29. Under cross-examination, Mr Hapugasdeniya agreed that he does not know the boys well, could not name their schools, and sees them on social occasions about once each month. He also agreed that he is frequently away from home on business, but his wife or the colleague’s wife would be available to provide additional practical support if needed.
30. In considering the full circumstances of the applications, including the best interests of the children, the Tribunal notes that in Re Hong and Minister for Immigration and Citizenship [2011] AATA 243 the Tribunal stated:
45. More generally, I accept that through living in Australia for over five of their formative years, Hyerhim and Sungjohn have become acculturated into the Australian community and identify with that community and not with the community of their birth. However, that is in itself not unusual, nor is the fact that a child who has studied for a period of over five years in Australia would face difficulties in adjusting to different circumstances on a return to their country of origin and suffer stress as a result. Many children come to Australia to study and have to cope with not being permitted to remain here once their studies are completed.
46. Australian citizenship is not to be conferred lightly. The fact that theHong children’s situation is not of their making but is the result of decisions made by their parents is not unusual: children are inevitably affected by decisions made by their parents. Equally, the fact that the children may also suffer some detriment as a result – in this instance as a result of the parents bringing them to Australia on tourist visas and then trying to find ways to remain here - is not unusual.
31. In Re Kim and Minister for Immigration and Citizenship [2010] AATA 640 the Tribunal stated at [37]:
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.
32. In Re Pakand Minister for Immigration and Citizenship [2010] AATA 157 the Tribunal stated at [10]:
The principal submission advanced on Ms Pak’s behalf to the effect that her circumstances were exceptional, or very unusual, relied on the length of her virtually unbroken residence in Australia, the fact that she had completed all her schooling in this country and that she had formed close personal ties here. There is no reason to doubt Ms Pak’s sincerity concerning her desire to become an Australian citizen. However, the matters to which reference has been made do not, in my view, amount to either exceptional or very unusual circumstances.
33. The Tribunal accepts that Tharindu and Chanilka are settled in Australia after five years and enjoy their schooling and the Australian way of life. They are doing well academically and are healthy and happy children. They wish to remain in Australia permanently. Both have some knowledge of spoken Sinhala, which is the language used by their parents at home. Tharindu had some primary education in Sinhala before coming to Australia, while Chanilka was too young to have had any exposure to schooling in Sinhala, and both have limited literacy skills in that language.
34. The parents acknowledged that a separation from the boys would not be in the boys’ best interests. The Tribunal accepts that Tharindu and Chanilka would suffer some disadvantage if forced to relocate to Sri Lanka after living in Australia for five years. However, the Tribunal takes into account that both parents speak Sinhala as their first language. They would be able to assist the boys with a transition to life in Sri Lanka and to gain proficiency in Sinhala, even though this may take time. There is a significant extended family in Sri Lanka which would be able to offer emotional and practical help.
35. The psychologists who assessed the boys commented on their adaptability, and the Tribunal believes that both would be able to adjust to living once more in the country of their birth, as they have some knowledge of the culture and environment of Sri Lanka. The only evidence about the current education system in Sri Lanka was given by Dr Ratwatte. She was pessimistic about the ability of the boys to acquire the necessary fluency in written and spoken Sinhala in the short term. However, she appears to have placed insufficient weight on the exposure of the boys to Sinhala when they were younger, and on the assistance that would be provided by their parents and family members. Apart from assertions by Ms Jayokodi Arachchige about the education system in Sri Lanka, which may have changed since the family arrived in Australia five years ago, the parents provided no evidence about transitional arrangements and the teaching of English in public schools. They conceded that they have made no enquiries about schools that the boys might attend.
36. The Tribunal takes into account the evidence from the parents about their inability to afford to send the boys to a private school in Sri Lanka, where instruction would be in English. The family enjoyed a comfortable lifestyle in Sri Lanka before moving to Australia, and they made the decision to sell their assets. Although Ms Jayokodi Arachchige said that she would be unable to resume her career with Sri Lankan Airlines, she is an experienced accountant who now has a qualification in community welfare and has good English language skills. She also has less parental responsibility than previously because of the age of the boys. Her employment prospects might not be as bleak as she suggests. She acknowledged that she has made no enquiries about job opportunities in Sri Lanka. Similarly, Mr Jayokodi Arachchige has had considerable experience in the motor vehicle spare parts industry and appears to have maintained contact with people in that industry. Therefore, despite his lack of capital to purchase a business, he may be able to obtain employment in this or other fields. He stated that he has made no enquiries about employment possibilities in Sri Lanka. Both parents obtained employment in Australia and have shown their willingness to work hard to provide for their family.
37. For these reasons, the Tribunal is not persuaded that there would be insufficient financial or other resources available to the family for the transition to resuming their life in Sri Lanka over time. The boys should be able to complete their education there, even if this takes longer than if they had not come to Australia.
38. As noted by the psychologists, there is a close bond between the boys and their parents, particularly the mother. Tharindu and Chanilka have not been separated from her for any protracted period, which is more significant for Chanilka given his age. Separation from the parents for such time as a successful visa application is made would be detrimental to the interests of both boys, particularly Chanilka. The Tribunal takes into account the conclusion by Dr Szyndler about the possibility of Tharindu remaining in Australia without his parents. However, on all the material, including the parents’ own evidence, the Tribunal is satisfied that the boys’ best interests are that they not be separated from their parents.
39. The parents have mentioned the possibility of the boys remaining in Australia if the parents are required to return to Sri Lanka. The Tribunal accepts that there is a close relationship between Tharindu and Chanilka and that they have not lived apart from each other. However, the proposal by the parents for Tharindu to be the carer for Chanilka under the guardianship of Mr Hapugasdeniya is ill-considered, unrealistic and totally unsatisfactory. Mr Hapugasdeniya does not know the children well and the suggested accommodation arrangements of the boys living with his tenant’s family in a house owned by him, plus the proposals for financial and emotional support, are vague and implausible. No-one from the tenant’s family provided any documentation about the proposed living arrangements or gave evidence at the hearing. Mr Hapugasdeniya spends a considerable time on business away from home and is unlikely to be in a position to exercise guardianship duties. Tharindu would be undertaking Year 12 in 2012 and, as a young person studying full-time without his parents’ support, should not be expected to assume the added responsibilities of a parent.
34. The Tribunal is not satisfied that the full circumstances, including the best interests of the boys, are of an unusual nature that would warrant the approval of the applications outside policy.
DECISION
41. The Tribunal affirms the decisions under review.
I certify that the forty-one [41] preceding paragraphs are a true copy of the reasons for the decision of:
G. D. Friedman, Senior Member
(sgd): Dianne Eva
Clerk
Dates of hearing: 12 and 13 October 2011
Date of decision: 21 October 2011
Counsel for the applicant: Mr M Gros
Solicitor for the applicant: Fairfields Lawyers
Advocate for the respondent: Ms J Cumming
Solicitor for the respondent: Clayton Utz
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