Re Choi and Minister for Immigration and Citizenship

[2008] AATA 726

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2008] AATA 726

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No 2007/1391-2         

GENERAL ADMINISTRATIVE DIVISION		)
Re		HAI MIN CHOI and SUNG MIN CHOI

Applicants

And MINISTER FOR IMMIGRATION AND CITIZENSHIP

Respondent

DECISION

Tribunal Mr D Connolly AM

Date20 August 2008

PlaceSydney

Decision The reviewable decisions are set aside and substituted are the decisions to grant the Applicants Australian citizenship pursuant to subsection 13(9) of the Australian Citizenship Act1948.

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

Mr D Connolly AM
  Member

CATCHWORDS

IMMIGRATION AND CITIZENSHIP – applications for Australian citizenship – applicants born in South Korea – applicants satisfy requirements of Australian Citizenship Act 1948 – policy guidelines advise permanent residence usual expectation – permanent residence not a condition precedent to exercise of discretion under the Australian Citizenship Act 1948 – applicants would suffer hardship or disadvantage if refused citizenship – discretion exercised in favour of applicants

Australian Citizenship Act 1948 – Sections 10, 13, 52A

Australian Citizenship (Transitionals and Consequentials) Act 2007 – Section 10

Australian Citizenship Amendment Act 1984 – Section 11

Australian Citizenship Act 2007 – Section 12

Migration Act 1958 – Sections 48, 134

Migration Regulations 1994 – Schedule 4 – Clause 4014

Khan v Minister for Immigration and Ethnic Affairs (1987) 14 ALD 291; [1987] FCA 457

Surinakova v Minister for Immigration, Local Government and Ethnic Affairs (1991) 33 FCR 87

Wong v Minister for Immigration and Ethnic Affairs (AAT 10830, 27 March 1996)

Ishri v Minister for Immigration and Ethnic Affairs (AAT 9748, 16 September 1994)

Raisani and Aryantie and Minister for Immigration and Citizenship [2008] AATA 640

Re Lee and Department of Immigration and Ethnic Affairs (1988) 10 AAR 270

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

Australian Citizenship Instructions – Paragraphs 4.2, 4.3.33, 4.4.3, 4.4.4, 4.4.5, 4.4.18

REASONS FOR DECISION

20 August 2008

DECISION UNDER REVIEW

Mr D Connolly AM

1. The decisions under review are those of a delegate of the Minister for Immigration and Citizenship made on 16 March 2007 under s 13(9)(a) of the AustralianCitizenship Act 1948 (‘the old Act’). The delegate refused the applications of Ms and Mr Choi, who are siblings, for Australian citizenship. The delegate did so with reference to the Australian Citizenship Instructions (‘ACI’), in particular those contained in paragraphs 4.4.4, 4.4.3 and 4.3.33. The Applicants are under 16 and they have not applied in conjunction with a responsible parent who is an Australian Citizen or a permanent resident.

ISSUE

2.      The Tribunal must consider whether the discretion under s 13(9) of the old Act should be exercised in the Applicants’ favour and, in so doing, grant Ms Choi and Mr Choi Australian citizenship.

LEGISLATION AND POLICY

3. The applications for citizenship were made under s 13(9)(a) of the old Act on 23 August 2005 and the applications were refused on 16 March 2007. The Applicants sought review in the AAT on 18 April 2007 under s 52A of the old Act. On 1 July 2007, the old Act was repealed and the Australian Citizenship Act 2007 (‘the new Act’) was enacted. The new Act was accompanied by the Australian Citizenship (Transitionals and Consequentials) Act 2007 (‘the Transitional Act’). Section 10 of the Transitional Act preserves the Applicants’ right of appeal to the Tribunal under the old Act.

4. At the hearing, Mr Kessels for the Applicants confirmed that both applications are under s 13(9)(a), as both Applicants were under 18 years of age. The old Act does not seek to impose any conditions precedent, criteria or relevant considerations on the exercise of that discretion. Consequently, it provides an unfettered discretion to the Minister (and the Tribunal on review) to grant Australian citizenship to such applicants when the circumstances warrant it.

5. Subsection 13(9)(a) of the old Act, provided that:

13(9) Subject to subsection (11), the Minister may, in the Minister’s discretion, upon application in accordance with the approved form, grant a certificate of Australian citizenship to a person:

(a)who has not attained the age of 18 years;

(b)…

6. Subsection 13(9)(a) of the old Act was inserted by s 11 of the Australian Citizenship Amendment Act 1984 and the subsection has not been amended.

7.      The ACI set out the policy guidelines for the exercise of the Minister’s discretion pursuant to s 13(9).

8.      The main guidelines considered in respect to the present applications are:

4.4.3    As a matter of policy, applications under s 13(9)(a) and 13(9)(b) will usually be approved if:

·…

·the applicant is at least 16 years old and meets the criteria in 4.2;

·the applicant has not turned 16 and, although their parents are not Australian citizens, the applicant would otherwise suffer hardship or disadvantage (see 4.3.33);

·…

4.4.4    In considering an application under s13(9), applications are not usually approved unless all of the following are satisfied:

·the child is a ‘permanent resident’ (see 1.4) or meets the requirements for migration to, or permanent residence in, Australia and

·the child has a ‘responsible parent’ (see 1.6) who is an Australian citizen and who consents to the application … and

·if the child is under 16 years old, they are living with that responsible parent. …

4.4.5    Delegates are reminded that they must consider the full circumstances of the case. For example, it may be appropriate to approve a case outside policy if the child (other than an adopted child) has a responsible parent who is an Australian citizen and there are exceptional circumstances which would make it unreasonable for the applicant to apply for a permanent visa.

…

4.4.18  As a matter of policy, an applicant 16 years or over will usually be approved if the following requirements are satisfied:

·the consent of a responsible parent has been given, unless:

-all responsible parents are deceased or their whereabouts cannot be established and

-the applicant would suffer significant hardship or detriment if not granted citizenship.

·the applicant meets all the criteria in s 13(1), other than the requirement to be at least 18 years (see 4.4):

-the applicant need not meet the usual residence requirements if this would cause significant hardship or disadvantage. If the hardship or detriment is not of the type described in 4.3.33, the case is to be referred to a delegate of at least APS 6 level.

9.      The policy criteria at 4.2, referred to at 4.4.3 above, relate to the grant of Australian citizenship under s 13(1) of the old Act. Subsection 13(1) provided that:

Subject to this section, the Minister may, in the Minister's discretion, upon application in accordance with the approved form, grant a certificate of Australian citizenship to a person who satisfies the Minister that:

(a)       the person is a permanent resident;

(b)       the person has attained the age of 18 years;

(c)       the person understands the nature of the application;

(d)the person has been present in Australia as a permanent resident for a period of, or for periods amounting in the aggregate to, not less than one year during the period of 2 years immediately preceding the date of the furnishing of the application;

(e)the person has been present in Australia as a permanent resident for a period of, or for periods amounting in the aggregate to, not less than 2 years during the period of 5 years immediately preceding the date of the furnishing of the application;

(f)the person is of good character;

(g)the person possesses a basic knowledge of the English language;

(h)the person has an adequate knowledge of the responsibilities and privileges of Australian citizenship; and

(j)if granted a certificate of Australian citizenship, the person is likely to reside, or to continue to reside, in Australia, or to maintain a close and continuing association with Australia.

CONTENTIONS

10.     The Applicants claimed that:-

• Subsection 13(9)(a) of the old Act provided a broad discretion to the Minister (and the tribunal on review) to grant Australian citizenship to any child under the age of 18 years, and paragraph 4.4.3 of the ACI states that as a matter of policy, applications under ss 13(9)(a) and (b) will usually be approved if the applicant has not turned 16, and although their parents are not Australian citizens, the applicant would otherwise suffer hardship or disadvantage. But paragraph 4.4.3 is silent in relation to applications which fail to fall within the criteria.
• Hardship or disadvantage as defined in paragraph 4.3.33 is limited to refusal of employment, exclusion from travelling with immediate Australian family members or ineligibility to represent Australia in an international forum, because of not being an Australian Citizen. Consequently, paragraph 4.4.3 does nothing more than establish a beneficial presumption in relation to cases which meet the criteria. It is not a matter for contention that neither of the Applicants’ circumstances meet the criteria in paragraph 4.4.4 and do not fit with the constraints of the policy as referred to in the ACI. The Applicants cannot rely on the presumption created by the policy that applications would “usually be approved”, and cases should be assessed by reference to the general discretion created by s 13(9)(a) and matters relevant to that discretion.

residency requirements

11.     It was contended that the Applicant Hai Min Choi was over 16 at the time of application and may meet the criteria in paragraph 4.4.3, which requires that an applicant who is over 16 meet the requirements of paragraph 4.2, which refers back to the criteria in s 13(1), including the requirement that the applicant be over 18 years and meet certain residence requirements (permanent residency). However, paragraph 4.4.18 of the ACI modifies these criteria by removing the requirement that the applicant be over 18, and states that the usual residency requirements need not be met if this would cause “significant hardship or disadvantage.”

12.     It was submitted that if the usual residency requirements are that the applicant be a permanent resident, then Hai Min Choi would satisfy this exception and the requirement of paragraph 4.4.18 because application of the usual residence requirements would cause her significant hardship or disadvantage (despite not falling within paragraph 4.3.33). As this Applicant would satisfy all the other requirements noted in paragraphs 4.4.18, 4.2 and s 13(9)(1) of the old Act, she should be granted citizenship.

13.     It was conceded that Ms Choi’s younger brother, Sung Min Choi, who was under the age of 16 at the time of application, could not demonstrate the type of “hardship and disadvantage” referred to in paragraph 4.3.33, and thus fails to meet the criterion in paragraph 4.4.3. But this does not mean that the particular hardship and disadvantage which he would suffer, if not granted citizenship, is irrelevant to the exercise of the discretion, although his application does not fall within the types of cases which, according to the policy, are usually approved.

14. The Applicants contended that there was no legal basis for the requirement in paragraph 4.4.4 of the ACI that a child must be a permanent resident or eligible for permanent residency before an application for citizenship is usually approved, because such a criterion was not authorised by the old Act and places an unlawful fetter upon the discretion in s 13(9)(a) and should not be applied by the tribunal.

15. The basis of this assertion can be found in s 10(2)(b) of the old Act and s 12(1)(b) of the new Act, which state that a child born in Australia is not automatically a citizen, but becomes a citizen at age 10 (regardless of the child’s parents’ status) provided that the child has been “ordinarily resident” in Australia throughout that time. There is no requirement that such children have a permanent visa under the Migration Act, be entitled to such a visa or any other visa, or be lawfully resident during that period. The Applicants contended that the Australian Citizenship Act (both the old Act and the new Act) is not simply an extension of the Migration Act 1958, but operates independently, and that Australian citizenship is not necessarily dependent upon any particular status under the Migration Act.

full circumstances of the case

16.     The Applicants contended that Paragraph 4.4.5 requires decision makers to have regard to the “full circumstances” of a case, which would be consistent with statements by Gummow J in Khan v Minister for Immigration and Ethnic Affairs (1987) 14 ALD 291; [1987] FCA 457 at [25] and Hill J in Surinakova v Minister for Immigration, Local Government and Ethnic Affairs (1991) 33 FCR 87 at 98. The tribunal should not be fettered by the apparent limitation in paragraph 4.4.5 to cases where the applicant has an Australian citizen as a parent, and where there are exceptional circumstances which make it unreasonable for the person to apply for a permanent visa. Furthermore, the tribunal must take into account the “full circumstances” of the case. The Respondent accepted that paragraph 4.4.5 of the ACI enjoins delegates (and the tribunal) to do this, but noted that in this case the Applicants had failed to meet any of the criteria, and as they are not permanent residents, that should be determinative and the discretion not exercised. The Respondent cited Wong v Minister for Immigration and Ethnic Affairs (AAT 10830, 27 March 1996) and others.

17.     The Applicants contended that the “best interests of the child” should be considered as a primary consideration in accordance with the generally accepted principle of Australian law, based upon Article 3.1 of the United Nations Convention on the Rights of the Child (although the ACI makes no mention of this as a relevant consideration). The Respondent conceded that the interests of the child are a requirement for the tribunal to take into account, but argued that it should not be a primary consideration, citing Ishri v Minister for Immigration and Ethnic Affairs (AAT 9748, 16 September 1994).

The Tribunal heard evidence regarding the two applicants. 

18.     Ms Hai Min Choi was born on 16 July 1991 and is 17 years of age. She came to Australia in 1993 with her parents and younger brother, when she was two years of age. She has no memories of Korea and has lived in Australia ever since. She resides with her mother, father and younger brother in Sydney and is attending year 12 at Willoughby Girls High School. She can only read, write and speak basic Korean, “probably at kindergarten level” according to her evidence, although she has been described as a good student of languages at school and speaks Korean with her parents.

19.     Ms Choi regards herself as an Australian and sees this country as her home. She has no direct links with Korea and has never visited that country. Although she knows that there are relatives still there, her extended family in Australia comprising uncles, aunts and cousins are very close, and are the only people of Korean descent that she knows intimately. She would suffer considerable distress if she was separated from her family and friends.

20.     Ms Choi is completing year 12 and hopes to continue her education at tertiary level in 2009 and to study fashion and commerce. She has been a good student and whatever career she decides on in Australia, her employment prospects here would be clearly superior to those in Korea, where she would face major language and assimilation issues, which would place her at a severe disadvantage vis-à-vis her age cohort, which had grown up in Korean society.  She is not fluent in the language and has negligible cultural identity. Her prospects of entering a university course would be slim and as a result future employment prospects would be well below those available in Australia.

21.     Ms Choi said that she appreciated that her parents are not permanent residents and have tried over many years to regularise their migration status. In the event that she and her brother are successful in their application for citizenship she would expect their parents to return to Korea and there apply for a permanent visa to return to Australia, and their children would sponsor them. However, as this outcome is not certain, she would expect to live with her aunt (her Father’s sister), who is an Australian citizen, and her family in Sydney while she continued with her education. The Tribunal heard evidence from the Applicants’ aunt, Ms Ji Youn Park, who confirmed that the above arrangements had been agreed to within the family.

22.     Mr Sung Min Choi is aged 15. He arrived in Australia with his parents in 1993 when he was one year old and had remained here with his immediate and extended family ever since. He gave written and oral evidence that he has no contact with  Korea. He is not fluent in the language although, like his sister, he has some ability with languages. He claimed that he cannot construct more than basic sentences nor read and write in Korean.  All his memories are of Australia where he has a close group of school friends and identifies with Australian cultural and community values. He would miss his friends if he was required to leave Australia and sees no prospect of having an equivalent education in Korea. He is currently in year 10 at North Sydney Boys High School, a selective High School, where he has been a good student and aspires to become a lawyer. Like his sister, he is not eligible to apply for a permanent visa under the Migration Act 1958 and is a victim of circumstances due to the previous actions of his parents. Through no fault of his own he is barred from applying for any relevant visa in Australia: s48 of the Migration Act 1958; and if he left Australia and applied for a visa overseas he would be subject to at least a three year ban: Schedule 4, clause 4014, Migration Regulations1994.

23.     The Applicants claimed that as Australia has made a significant investment in the education of Ms Choi and Mr Choi, it would not be in the national interest to abandon this investment when the alternative is to grant citizenship and allow them to become full and productive members of the Australian community.

24.     Professor Ken Wells provided a written statement with regard to the difficulties posed for a student entering secondary school level education in South Korea when they had previously been educated wholly in Australia. He noted that there was a “national obsession” with education, and it is difficult for anyone without a good diploma to make any headway in Korean society. An ethnic Korean educated outside Korea is eligible to attend public and private schools, but where the student only has a minimal grasp of the language, schooling within the Korean system is normally not feasible at the secondary school level. “There simply will not be enough time to master Korean at a level sufficient for the student to have any chance of passing a university entrance examination.” South Koreans regard education as the means for improving their social and economic status and extraordinary pressures are placed on families to provide the best possible education, often beyond their financial means, so that good students can attend the best universities, entrance to which is through competitive examination. The professor described the last three years at high school as an “examination hell.” Entrance into high school is by ballot. It is extremely unlikely that any person with a meagre knowledge of the Korean language will ever gain entry to a university. In South Korea there are 19 foreign schools, but local residents require a permit to attend. A student from Australia would be eligible to apply. In Seoul there are only three foreign schools of any note, only two of which teach in English. The annual fee is around AUS$20,845 per year. The professor concluded that it would be extremely unlikely that an ethnic Korean educated in Australia, without much knowledge of Korean, would be able to pass a university entrance examination and would be seriously disadvantaged in both education and future employment. 

25.     Dr Alex Apler is an Adult, Child and Family Psychiatrist who conducted a psychiatric evaluation of both Applicants on 30 November 2007 at the request of the Respondent. He also referred to a previous psychological report prepared by Professor Susan Hayes who, although she did not prepare a psychiatric diagnosis, commented upon the possible emotional effects of migration. She was of the opinion that if the Applicants were forced to return to Korea, they would be likely to suffer from, amongst other things, high levels of psychological stress, anxiety disorders, poorer health behaviour and lack of cultural competence and a poor sense of self identity leading to vulnerability to psychological disorder.

26.     Dr Applier described in his report interviews with the Applicants and their parents. His opinion was that “Hai Min is a capable and hard working 16 year old girl who is embarking on her HSC. She is focused on her studies, can look after herself and has a pleasant disposition, enjoying her friends and cousins. She has no mental illness. She is likely to cope with the stress of returning to Korea … given her interest in languages and ability to work hard. … I do not think that returning to Korea would result in a mental illness. She would cope with remaining in Australia without her parents and is unlikely to develop a mental illness.”

27.     Dr Appler described Sung Min as a “healthy, intelligent and resilient 15 year old boy who is determined to succeed. He … studies hard and enjoys sport. He has good social skills … He does not have a mental illness. Returning to Korea may be stressful … but is unlikely to result in a psychiatric disorder. … He is unlikely to develop a psychiatric disorder if he remained in Australia without his parents.”

28.     Kyung Jik Kwak. A Korean Attorney at Law and former Judge currently practicing in New York gave evidence to the tribunal by telephone. He told the tribunal that Korean law does not generally provide for dual citizenship except in specific involuntary circumstances, for example, a baby born of Korean parents in the United States thus acquiring both Korean and US citizenship up to age 22 when a choice must be made. The witness stated that in the case of the applicants, if granted Australian citizenship they would loose their Korean nationality but if they subsequently returned to Korea they could easily regain Korean citizenship or  acquire the status of a special ethnic Korean foreigner (Tung Tu) which would allow them to live and work in Korea permanently. The evidence was inconclusive on the question as to whether or not Mr Choi would be liable for military service on his return to Korea if he held this status. The tribunal has not given this evidence further weight because it regards military service as a law of common application.

29.   The Applicants and Respondent accepted that the statutory discretion in s 13(9) is a broad one, and neither contends that s 13(9) requires the Applicants to be permanent residents. However, the ACI includes this as a usual expectation. Paragraphs 4.4.3, 4.4.4, and 4.4.18 of the guidelines explain that a decision maker would not “usually” approve an application where the person is not a permanent resident.

30.   The Applicants are not eligible for the grant of permanent residency visas under the Migration Act 1958. Their parents had previously applied to the Minister for a grant of residence under s 417 of the Migration Act, but that application was unsuccessful. Their parents were still in Australia at the time of the hearing and the Applicants’ father gave evidence to the tribunal through an interpreter. The Applicants and their parents would be expected to leave Australia when their bridging visas expire.

31. The Respondent argued that it is not the intention of s 13(9)(a) to grant citizenship to a child who has been unlawfully in Australia, so that he or she may then sponsor their parents, and pointed out that it was by no means certain the parents would be granted visas if their children were granted citizenship.

32.   The Applicants did not deny that they hoped their parents would be able to return to Australia with their help if they were granted citizenship. The Applicants told the tribunal when giving their oral evidence, that it was their ardent desire that they be granted Australian citizenship so that they could remain in Australia and enjoy a normal life.

33. The tribunal noted the Respondent’s claim that by exercising discretion in favour of a child the consequence may permit the legal entry of a parent who has been previously refused a visa. However, this matter was not addressed in s 13 or in the policy guidelines regarding ss 13(9)(a) and (b). Therefore, the tribunal has not given this issue much weight. The power to change the law rests with the lawmakers not this tribunal.

34.  The Applicants presented themselves before the tribunal as normal, well integrated Australian teenagers who want to remain in Australia with the full rights of citizens. The tribunal examined the various alternatives, including how they would manage if their parents were required to return to Korea. It is satisfied that the Applicants are members of a close family network and that their paternal aunt (an Australian citizen) and her family will take them in and support them as their own children, while they require that standard of care.

35.   Paragraph 4.4.4 of the ACI states that citizenship applications for those under 16 are not usually approved unless the child is living with a responsible parent. Even so, the ACI state that if the child is in the care of another person, such as an uncle, the case should be referred to a senior delegate. The proposed arrangement with the Applicants’ aunt appears to meet this requirement and the tribunal does not see this as a ground for refusing the grant of citizenship even though Sung Min Choi is under the age of 16.

36.   Both Applicants told the tribunal that they would miss their parents and, subject to finances, they expected to be able to visit them in South Korea in the event that they were unable to sponsor their return to Australia. There is no evidence that the Applicants would face problems with the Korean authorities, such as future military service for Sung Min Choi, as they would be travelling to Korea as Australian citizens and on Australian passports. (See evidence from Mr Kwak above).

37. The tribunal has noted that the Applicants come within the exception to the rule under s 52A(2) of the old Citizenship Act, that persons who are not permanent residents are not entitled to review of a decision under section 13. Children who seek citizenship under ss 13(9)(a) and (b), however, may seek review. Although this should not, in any sense, be seen as a guarantee of success, it does create a perception or expectation that applications may be successful.

38. Although the ACI do not specify that the “best interests” of the Applicants must be borne in mind, s 13(9)(a) applies, as they had not attained 18 years of age at the time of application and the Tribunal’s hearing. In the opinion of the tribunal, the best interests of both Applicants would be best served if they were granted Australian citizenship. The tribunal is satisfied that both Applicants would experience serious difficulties over language and cultural issues, although it accepts that both Applicants appear to have above average language skills. Nevertheless, their lack of previous Korean cultural and social assimilation normally experienced by attending school in Korea, together with the concurrent re-integration difficulties which would be faced by their parents, are factors which must be taken into account by the tribunal when determining hardship.

permanent residence

39.  The two Applicants do not have an entitlement to permanent residency in Australia. They have remained on temporary bridging visas ever since their arrival as dependents. Although their parents have made a number of applications for visas over many years, including for refugee status, these applications have not been successful.

40.  The tribunal has taken note of the decision by Senior Member Hunt in her decision Raisani and Aryantie and Minister for Immigration and Citizenship [2008] AATA 640 (‘Raisani’), where the Applicants claimed that the policy provisions which established these criteria as a consideration for the exercise of the unfettered discretion in s 13(9) were unlawful because no element of compulsion existed in the provision. The tribunal does not accept that the policy is unlawful unless it applied 4.2 indiscriminately to the Applicants. Other policy guidelines do not make the 4.2 criteria compulsory, but leave the possibility of competing considerations for the exercise of discretion. These competing considerations are set out in 4.4.18.

41.   As noted in Re Lee and Department of Immigration and Ethnic Affairs (1988) 10 AAR 270, The discretionary powers in ss 13(1) and 13(9) are separate and distinct, although there may be common policy considerations when exercising the separate discretion afforded by s 13(9).

42.  The Applicants’ submission was that the omission of a requirement for permanent residence from s 13(9) was deliberate, and that this omission leaves open the possible grant of citizenship where a child does not meet the requirements for permanent residence. The ACI do explain under what circumstances the Minister may expect that lack of permanent residency would usually affect the grant of citizenship, but this does not lead to the conclusion that the ACI are unlawful or exceed power by suggesting matters which may affect the exercise of discretion.

43.   Paragraph 4.4.3 offers an opportunity for a grant where an applicant is aged over 16 and meets the criteria in 4.2. Paragraph 4.2 sets out guidelines for s 13(1), but is relevant to the Applicants because of the connection made in the ACI via 4.4.3 The Respondent objected to this, as s 13(1)(a) says the applicant must be a permanent resident and this is not a requirement under s 13(9). The tribunal accepts the argument that this requirement should not apply in a mandatory fashion to the Applicants because it is not a requirement of s 13(9).

44. It was also pointed out that there is a distinction between the requirement under s 13(1) that a person be a permanent resident, and the requirement that a person be an “ordinary resident” in Australia in order to become a citizen under s 10(2)(b) of the old Act and s 12(1)(b) of the new Act. There are clearly two tests here, and the differences in ss 13(1) and 13(9) and the ACI for ss 13(9)(a) and (b) indicate that Parliament was aware of the difference.

exceptional circumstances

45.  Where a legislative provision creates a general discretion, it is well established that the tribunal should follow publicly declared Ministerial policy or Departmental guidelines unless there is a good reason not to: per Brennan J in Re Drake and Minister for Immigration and Ethnic Affairs (No2) (1979) 2 ALD 634. Policy concerning permanent residence may appear imprecise but it is clear that persons having no expectation of a permanent visa should not be granted citizenship unless they show significant hardship or disadvantage.

46.   The tribunal is required by 4.4.5 to have regard to the full circumstances of the case and concedes that there may be circumstances where it is appropriate to grant citizenship outside policy. It would be unreasonable to require these Applicants to apply for permanent residency in this instance, as they would fail. Whether requiring them to meet this requirement would cause “significant hardship or disadvantage” as noted in 4.4.18 or require “exceptional circumstances” as in 4.4.5 is a question which requires a response by the tribunal.

47.   What constitutes exceptional circumstances is not specified by 4.4.5, which only requires that the decision maker must consider the “full circumstances” of the case. The tribunal has taken account of the Macquarie Dictionary’s definition of “Exceptional” as “forming an exception or unusual instance”. The Oxford English Dictionary defines exceptional circumstances as “of the nature of or forming an exception; out of the ordinary course, unusual, special”. The tribunal accepts that the particular circumstances of these Applicants would not be regarded as “exceptional” because they are unable to qualify for permanent residency. However, they came to Australia as minors and remained here as a result of their parents’ actions and through no fault of their own have had, what can be described as, an exceptional period of residence in Australia which precludes them from applying for visas, as they remain ineligible and cannot be helped by 4.4.5.

48.   Paragraph 4.4.18 states that an applicant need not meet the “usual residency requirements” in some circumstances. This tribunal agrees with Senior Member Hunt’s conclusion in Raisani that this should include permanent residency as well as those included in s 13(4).

49.  The tribunal noted that discretion available under s 13(4)(b)(iv) was also covered under paragraphs 4.3.33 and 4.3.34 of the ACI, but the examples referred to do not cover the Applicants’ situation. The tribunal has concluded that the Applicants do not meet the normal residency requirements despite their desire to remain in Australia and agrees with Senior Member Hunt that “intention and length of residence” is not sufficient for the Applicants to warrant exercise of discretion in their favour.

hardship and disadvantage

50.  The tribunal has considered whether the Applicants would suffer hardship, disadvantage or detriment if not granted citizenship as they do not meet normal residency requirements. The Applicants have given evidence in regard to the difficulties which they would have to face if they moved to South Korea. There is also further evidence from Professor Wells of the Research School of Pacific and Asian Studies, and from Psychologists Professor Hayes and Dr Apler. Although there is some divergence, the tribunal has given greater weight to the evidence of Dr Apler, as he conducted a fuller examination of the Applicants. He concluded that they would be unlikely to suffer from mental illness as a result of the stress of migration or if they remained in Australia without their parents. However, the evidence of Professor Wells satisfied the Tribunal that adjusting to life in Korea with limited language capabilities would create issues which would seriously disadvantage both Applicants. Should she remain in Australia, Ms Hai Min Choi would be eligible for entry into a tertiary institution in 2009, but in Korea such an outcome would be virtually impossible given her limited knowledge of the Korean language. While Professor Wells identified some private institutions in Korea, the tribunal is satisfied that the cost of entry would preclude Ms Choi, as her parents would be financially unable to pay the high fees. Furthermore, if the education of Ms Choi is severely disrupted, immediately following her return to Korea, there is no guarantee that she will be able to obtain employment commensurate with her abilities or interests. Her brother, Sung Min Choi, aged 15 years and entering year 11 in 2009, will also face severe disruption to his education should he return to Korea, which would impact adversely upon his future employment and career opportunities.

51.  Although the tribunal is not required to make a determination on the status of the parents, it has kept in mind the evidence given by the Applicants’ father that he and his wife would be facing problems of relocation to Korea, with very limited means and no foreseeable employment. The tribunal accepts that this situation would impact adversely upon the Applicants. There is no evidence before the tribunal which would lead it to conclude, with confidence, that the parents have the financial resources to help them maintain for their children a reasonable standard of living in Korea (their small business was declared bankrupt and they have been running a small cleaning business in Sydney) while they seek employment and assist their children to obtain the necessary language skills to enter either the workforce or further education.

52.  Given the evidence from professor Wells that a good education is essential for any future employment prospects in Korea, this may well be a task which the parents find insurmountable within a reasonable time, and would bring severe hardship and disadvantage to the Applicants. The tribunal was not convinced by the Respondent’s claim that any extra work the children might have to do in order to achieve good results in Korean schools does not amount to hardship within the meaning of the policy discretion.

53.  The tribunal agrees with the findings of Senior Member Hunt in Raisani that the terms in 4.4.18 which form the basis of the discretion are “significant hardship”, “disadvantage” and “detriment”. These terms are not the same as the degree of hardship used to determine, for instance, whether a child of a person who is refused a business skills visa is able to stay in Australia on the grounds of hardship. The test under s 134(5) of the Migration Act1958 for the exercise of discretion in favour of a member of a family of a former primary visa holder whose visa is cancelled is “extreme hardship.” The Macquarie Dictionary defines “hardship” as “a condition that bears hard upon one.” Certainly, on the basis of Professor Wells’ evidence, the Applicants will face severe hardship in reaching a sufficient standard in Korean for Hai Min Choi to enter tertiary education in 2009 and, in the case of Sung Min Choi, completing his secondary education in 2010.

54.  The tribunal is satisfied that the Applicants will suffer injury if they are not granted Australian citizenship. As they are not eligible for permanent residence visas they will have no alternative but to leave Australia with their parents, and in Korea their prospects of continuing with their tertiary education would be severely compromised in comparison to what they could expect if they remained in Australia. This is a consequence which, in the view of the tribunal, amounts to significant hardship as it could impact detrimentally on the entire lives of the two Applicants. The tribunal has taken note of the Respondent’s claim that the Applicants may have the opportunity to apply for visas and return to Australia as students, but this is by no means certain, and clearly dependent upon the financial capability of their parents to pay significant education fees in Australia. Although the Tribunal heard evidence from the Applicants’ aunt that she was willing to support them while completing their education, it was not suggested that this included the payment of university or other fees.

55.  The tribunal has taken note of the Respondent’s claim that to allow the Applicants to obtain Australian citizenship and to remain in Australia would encourage other persons who enter Australia on limited visas and use the legal processes under the Migration Act1958 to stay in Australia indefinitely. While the Tribunal accepts that this may well be an undesirable consequence, it would contend that the remedy rests with the law makers of the day, not this tribunal. In these cases, the Applicants arrived as minors in 1993 and remained in Australia with their parents on bridging visas and for a period illegally. Their parents repeatedly applied for permanent entry under various visa categories, including seeking Refugee status. All their applications were rejected and on review upheld. The apparent failure of the Department to institute deportation proceedings at an earlier date is at the root of this situation and is not an adequate reason for the tribunal to find in favour of the Respondent.

CONCLUSION

56.   For the reasons above, I find that the Applicants should be granted Australian citizenship.

DECISION

57. The reviewable decisions are set aside and substituted are the decisions to grant the Applicants Australian citizenship pursuant to subsection 13(9) of the Australian Citizenship Act1948.

I certify that the 57 preceding paragraphs are a true copy of the reasons for the decision herein of Mr D Connolly AM

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

Dates of Hearing  21-22 April 2008
Date of Decision  20 August 2008   
Solicitor for the Applicant          Mr R Kessels, Fragomen
Counsel for the Respondent     Mr G Johnson
Solicitor for the Respondent     Mr G Johnson, DLA Phillips Fox