Re David Yamaoka De Andrade and Minister for Immigration and Citizenship
[2011] AATA 737
•21 October 2011
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2011] AATA 737
ADMINISTRATIVE APPEALS TRIBUNAL )
) N° 2010/2640
GENERAL ADMINISTRATIVE DIVISION ) Re DAVID YAMAOKA DE ANDRADE Applicant
And
MINISTER FOR IMMIGRATION AND CITIZENSHIP
Respondent
DECISION
Tribunal Mr John Handley, Senior Member Date21 October 2011
PlaceMelbourne
Decision The Tribunal affirms the decision under review. John Handley
Senior Member
CITIZENSHIP – by conferral – applicant under the age of 18 – born in Australia – lived all of his life in Australia ‑ eligible to apply for citizenship – discretion to refuse application – Australian Citizenship Instructions ‑ application of policy – best interests of the child – applicant and parents not permanent residents – significant hardship and disadvantage – full circumstances of the case – whether circumstances are unusual.
Australian Citizenship Act 2007 ss 21(5) and 24(2)
Re Fagundes and Minister for Immigration and Citizenship [2011] AATA 493
Re Da Silva and Minister for Immigration and Citizenship [2011] AATA 494
Re De Vasconcelos and Minister for Immigration and Citizenship [2011] AATA 534
Re SNMX and Minister for Immigration and Citizenship (2009) 110 ALD 645
Re Zlatanovski and Minister for Immigration and Citizenship (2010) 114 ALD 452
Singh v Minister for Immigration and Citizenship [2011] FCA 685
K v Cullen and Others (1994) 126 ALR 38
Collector of Customs v Agfa-Gevaert Ltd (1996) 186 CLR 389
An v Minister for Immigration and Citizenship [2007] FCAFC 97
REASONS FOR DECISION
21 October 2011 Mr John Handley, Senior Member 1.David Yamaoka De Andrade, the applicant, is 4 years old. He is seeking review of a decision made on 31 May 2010 by a delegate of the Minister for Immigration and Citizenship (the Minister) to refuse his application for Australian citizenship by conferral.
2.David was born in Australia on 4 April 2007. However, he is a citizen of Brazil because his parents, Daniela and Marcelo De Andrade who are Brazilian citizens were not Australian citizens or permanent residents when he was born. Therefore, David does not qualify for citizenship by birth in accordance with s 12(1) of the Australian Citizenship Act 2007 (the Act) in force at the date he applied for citizenship.
3.David and his parents currently hold a Bridging Visa E which allows them to remain in Australia lawfully pending the outcome of this proceeding.
LEGISLATION
4.Section 21(5) of the Act which was in force prior to 9 November 2009 provides that 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. However, s 24(2) allows the Minister to refuse to approve an application for citizenship, despite eligibility.
5.The Australian Citizenship Instructions (ACIs) have been approved by the Minister and set out the guidelines that must be considered by decision-makers when exercising the discretion in s 24(2) of the Act.
ACIs
6.The relevant parts of the ACIs provide as follows:
·In the case of applicants under the age of 18 years:
…
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 guidelines …
…
The best interests of the child are to be considered as one of the primary considerations when assessing the application. This consideration only applies if the child is or would be less than 18 years of age at the time of decision on the application and the child is living in Australia.
·In the case of applicants under the age of 16:
… a responsible parent must sign the application form.
Children under the age of 16 applying individually in their own right would usually be approved under section 24 if they meet the following policy guidelines:
Øhold a permanent visa, including an adoption visa; and
Ø…
Øare under 16 years of age when applying, are 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 (see Attachment B - Significant hardship and disadvantage…)
If an applicant under the age of 16 does not meet the policy guidelines reproduced immediately 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 whole of Attachment B – Significant Hardship and Disadvantage is reproduced as follows:
ATTACHMENT B – SIGNIFICANT HARDSHIP AND DISADVANTAGE
The Macquarie Concise Dictionary and Collins Concise English Dictionary, Australian Edition make the following definitions:
significant of consequence;
important or momentous
hardship conditions of life difficult to endure;
something that causes suffering or privation
disadvantage an unfavourable circumstance, thing, person;
injury, loss or detriment
People would normally be required to demonstrate some or all of the following circumstances:
· inability to gain employment on the grounds that the employment is restricted to Australian citizens, and that comparable or alternative employment is not reasonably available
· difficulty of international travel because the person cannot obtain a passport from their country of nationality/citizenship, or are unable to use a passport issued by that country for safety or similar reasons
· academic (eg research, academic scholarship) or other (sporting etc) potential is being limited or restricted, because the opportunities to reach that potential is available only to an Australian citizen, to the extent that it causes significant hardship.
Decision-makers will need to assess each application on its merits. While policy is not to be applied inflexibly, it must be applied, unless there are special circumstances that would warrant consideration outside that policy.
Evidence of significant hardship and disadvantage is required (eg a statement in writing, with appropriate supporting documentation to demonstrate how they meet the legal requirements and policy guidelines).
The onus is on the applicant to provide the evidence to support the application.
Decision makers must be mindful of the difference between personal needs and personal wants.
Personal needs relate to situations which would give rise to significant hardship or disadvantage if a person could not meet that need. For example, if a person could not find any employment, and was unable to adequately financially support themselves or their family.
Personal wants are aspirations and generally do not constitute hardship (ie the right to vote, election to Parliament, HECS availability, representing Australia internationally in academics or sport).
Australian citizenship is not a requirement to study in Australia. Australian universities are permitted to admit students who are not Australian citizens. Permanent visa holders are eligible for a Commonwealth supported place (previously known as a Higher Education Contribution Scheme) or a domestic fee-paying place. The requirement to be an Australian citizen is only relevant to students who wish to access a loan under the Australian Government’s High Education Loan Programme (HELP) for their student contribution or tuition fee. Further information is available from the Department of Education, Science and Training at should also be aware of situations where it appears that a person takes a course of action for the sole purpose of availing themselves of the exercise of this discretion.
EVIDENCE
7.In addition to the witness statements filed on behalf of the applicant, the Tribunal heard evidence from David’s parents with the assistance of an appropriately accredited Brazilian Portuguese interpreter. Stephanie Caldeira, a family friend gave evidence by telephone. Katherine Hurrell, a clinical psychologist who assessed David at the request of his solicitors also gave evidence by telephone. There were no witnesses called on behalf of the Minister.
Daniela De Andrade
8.Mrs De Andrade prepared a witness statement dated 13 January 2011 (Exhibit A1) which she adopted in evidence before the Tribunal. She stated that with the financial assistance of her father and father-in-law, she and her husband came to Australia on their honeymoon and intended to stay for a few weeks. After speaking with friends, they applied for a protection visa which was refused. In addition to David, Mr and Mrs De Andrade have another child, Christian, aged 2 ½ who was also born in Australia. They are expecting their third child, a daughter, in December 2011.
9.In 1999 Mrs De Andrade completed a Bachelor of Information Technology in Brazil. She is a qualified software engineer. Prior to leaving Brazil with her husband, she worked as a supervisor for the Department of Electoral Information for 10 months. In her statement, Mrs De Andrade stated that after the 2006 general election in Brazil, she and several colleagues were accused of electoral fraud. They were forcibly detained and beaten by police, although they were never charged. She described incidents of harassment and threats of violence after her release. While she informed the police about the incidents, they did not assist or offer protection. Mrs De Andrade stated that she and her husband have remained in Australia because they are afraid to return to Brazil.
10.Mrs De Andrade stated that it will be difficult for her and her family to return to Brazil, especially David. There is nobody to provide financial or practical support. She is the only child and although her father lives in Brazil, he is elderly and very unwell. He lives in a one bedroom apartment and receives a pension which is barely enough for his own living expenses. Her mother lives with her in Australia.
11.Mrs De Andrade’s mother-in-law lives in Brazil and she also lives in a small apartment and receives a pension. In evidence, she said that her family of 5 could not live with either her father or mother-in-law. When pressed during cross‑examination she agreed that she and her family could live with her father or mother-in-law for a week or two. She said in evidence that her husband also has a brother. However, as he lives in Portugal, she and her family cannot rely on him for assistance.
12.Mrs De Andrade expressed concern about employment prospects in Brazil. She has not worked in her field since 2002 or updated her skills and therefore, would struggle to find work as a software engineer. She said that she has a friend who obtained (possibly postgraduate) qualifications in Australia and has been looking for work in Brazil for 4 months without success. In cross-examination, she agreed that neither she nor her husband were unemployed when they lived in Brazil some 9 years ago. She also agreed that she formed the belief that it will be difficult to find employment because of what she had heard. She said that she had not made any formal inquiries about employment in Brazil.
13.Mrs De Andrade acknowledged that she could complete further studies to update her skills and improve her employment prospects. However, she said that this is not a viable option while she is responsible for the care of her children. Similarly, even if she was able to find employment in Brazil, she does not have anybody to care for her children. Mrs De Andrade was asked about the possibility of undertaking courses when the children are older. She did not dismiss that possibility. However, she said that her children are young and one is yet to be born, so it will take a while before the children are old enough to permit her to work or study. In cross‑examination, she said that her mother is living with her and will continue to do so in Brazil. Mrs De Andrade believes that her mother could assist with the children, although she may struggle caring for 3 children at her age.
14.Mrs De Andrade is also concerned about her husband’s employment prospects. He is aged 40, which is considered too old to be applying for work in Brazil. He is currently employed as a cement renderer. She stated that friends who worked as cement renderers in Australia have not been able to find work in that trade when they returned to Brazil. In cross‑examination, she agreed that if her husband was unable to find employment, he could care for the children while she returned to work. However, she said she would need time to study before she could look for a job.
15.Mrs De Andrade is also concerned about crime and insecurity in Brazil. She stated that friends in Brazil have spoken to her about the frequency of house burglaries and threats of violence. She described an incident when her brother-in-law was visiting a friend and a thief broke in and threatened them. In cross‑examination, Mrs De Andrade said that her friend had been held up at gun point and her friend’s husband threatened. She said that no one was hurt in those instances. Apart from those incidents and the events that followed from the allegation of electoral fraud, Mrs De Andrade was unable to cite any other examples where she or somebody she knew was directly affected by a crime. She agreed that she gained an impression of high crime rates and insecurity from what she had read in newspapers online.
16.Mrs De Andrade recorded that David’s future in Brazil will be bleak and his interests will best be served in Australia where he has friends and a support network. She has received offers from friends who are prepared to care for David in Australia if she and Mr De Andrade return to Brazil. Whilst a difficult decision, she is seriously considering those offers. In evidence she maintained her position and said that David will be better off here, in the care of Mrs Caldeira because their ability to survive in Brazil is too uncertain.
17.In cross-examination, Mrs De Andrade was referred to the report of Ms Hurrell who concluded that a separation from his parents may adversely affect David’s psychological functioning and he will be at risk of developing an adjustment disorder. She said that it is difficult to hear that and while David may struggle initially, he will eventually adapt, particularly because he will be with Mrs Caldeira and her daughter who he is familiar with. Despite the risk that David will be exposed to, if his application is successful and the family returns to Brazil, Mrs De Andrade said that she will leave David in Australia because she prefers that he suffers a little bit now rather than a long period with the uncertainty (Transcript, p 20).
Marcelo De Andrade
18.Mr De Andrade prepared a witness statement dated 14 January 2011 (Exhibit A4) which he adopted in evidence before the Tribunal. He also confirmed his wife’s evidence about the family history and the absence of friends and family in Brazil who can provide financial or practical support.
19.Mr De Andrade supports David’s application for Australian citizenship on the basis that his interests would be best served in Australia. He recorded that he does not know how he will support his family in Brazil.
20.Mr De Andrade believes he will be unable to find employment in Brazil. In his statement, he recorded that his age will be a disadvantage because employers prefer younger persons. Prior to leaving Brazil in 2002, he worked as a sales representative selling women’s beauty products to hairdressing salons. He worked in sales for about 2 ½ years. He does not know whether the business still exists. Mr De Andrade said that he will struggle to find work in sales if he returns to Brazil because he no longer has a car which is essential in that line of work.
21.Mr De Andrade does not believe he will find employment as a cement renderer because the trade is very different in Brazil and he has heard that friends that worked as cement renderers in Australia have not been able to secure employment in Brazil. In evidence, he explained that unlike Australia, the construction industry in Brazil requires employees to perform the work at all stages of construction. In order to secure employment in Brazil, Mr De Andrade said he would also require expertise in plumbing, electrical and the like. In cross-examination, he was asked whether he had made any formal enquiries about employment in Brazil. Mr De Andrade said that he has spoken to his mother and friends in Brazil who report that things are hard (Transcript, p 39). He said that a friend, who also qualified as a cement renderer in Australia, has been living in Maringa (the city in Brazil in which Mr De Andrade and his family will live) for 1 ½ years and during that time, he was employed for only 3 months. That friend is due to return to Australia in the near future.
22.Mr Horan, on behalf of the Minister, informed Mr De Andrade of the low unemployment rate in Brazil. The witness accepted the rate may be low, however, he said that the reports on the internet, is what Brazil wants to tell the world (Transcript, p 40). He added that even if there are jobs, the pay is not sufficient to support a family. Mr De Andrade said he watches a program on television which depicts the reality in Brazil. Mr Horan advised him that the minimum wage in Brazil has increased and in response, Mr De Andrade said that products on the market and the cost of living have also increased.
23.In cross-examination, Mr De Andrade said that in the event David is granted Australian citizenship, he agrees with his wife’s decision to leave David in Australia. In addition to the financial hardship that the family will encounter and the prevalence of crime and violence in Brazil, Mr De Andrade said he is concerned about David’s ability to adapt in Brazil because he has experienced life in Australia and has attended school here. He said that unlike his younger son, David is accustomed to the lifestyle here and a move to Brazil will be a shock for him. While a separation from his parents may lead to emotional difficulties, Mr De Andrade said that David’s future will be brighter in Australia, particularly in terms of education and safety.
Stephanie Perera Almeida Caldeira
24.Mrs Caldeira is a family friend who prepared a witness statement on 13 January 2011 (Exhibit A5) and gave evidence by telephone in support of David’s application. She was present at David’s birth and she has been a close friend of the family for almost 9 years. She recorded that she and her family live 10 minutes away from David’s family and see each other on a weekly basis. The families are members of the same church and see each other on Sundays. Mrs Caldeira and Mrs De Andrade are involved in the church band which meets every Friday. The families also get together on Saturday nights. Her daughter is 3 months older than David and they play together.
25.Mrs Caldeira has offered to care for David if his family return to Brazil. Her husband works and she is at home caring for her 2 daughters. David will stay at home with her until he starts school which will be in the same year as her own daughter. Mrs Caldeira and her husband own their own home which is located a block away from the local school. She and her husband are willing to care for David and they are financially able to do so. She said that their church will also provide support as required.
26.In cross-examination, Mrs Caldeira said that she has cared for David during the day, although not regularly but he has never spent the night with her family. She said that David may struggle initially if his parents return to Brazil without him. However, he will settle down in a couple of weeks and will find comfort with the other children in the house, particularly the oldest daughter. She was not aware of the report prepared by Ms Hurrell.
27.Mrs Caldeira said that she had not given thought to the long term future and the duration of her commitment, although she is prepared to adopt David if need be. She will ensure that he maintains a relationship with his parents with regular telephone calls, including Skype and if finances permit, she will arrange visits to Brazil to allow David the opportunity to spend time with his family.
Katherine Hurrell
28.Ms Hurrell assessed David on 29 December 2010 and prepared a report on 13 January 2011 (Exhibit A2). She interviewed David, his parents (with the assistance of a Portuguese interpreter) and his pre-school teacher, Christine Paczkowski. In evidence, Ms Hurrell explained that a third party such as a teacher who spends quality time with the child can provide valuable insight.
29.Ms Hurrell was specifically asked to comment on any significant hardship and disadvantage that David may face if he is forced to leave Australia and the effects on him if he is separated from his parents.
30.In relation to the first issue, Ms Hurrell reported that David has a high standard of living in Australia because his father’s employment ensures that his level of material comforts extend beyond the basics. In Australia, David enjoys educational and recreational activities in a pleasant and safe environment. He and his family have integrated within Australian society and have the benefit of a support network consisting of friends and church members.
31.Ms Hurrell reported that if David leaves Australia, he is likely to experience dramatic changes in his lifestyle and living standards, particularly if his father is unable to secure employment. Without the financial means and in the absence of a support network, David’s basic needs may not be met and he will suffer significant hardship and disadvantage. In addition to improving his English skills, preschool in Australia has increased David’s confidence and independence. He will be adversely affected if he is unable to continue preschool. Having regard to the interview with Ms Paczkowski, Ms Hurrell reported that the magnitude of the change … may highly challenge his ability to cope and his adjustment may be further compromised if his environment lacks routine and predictability (Exhibit A2, p 7).
32.In cross-examination, Ms Hurrell said that David’s developmental milestones were in the normal range for his age. Referring to her interview with his preschool teacher, she said that apart from some initial difficulty, David has adjusted to school and does not display problem behaviours. However, he is shy and slow to warm up, therefore, it may take a while before he develops friendships (Transcript, p 31). She also confirmed that David does not currently have any disorder, although he does have a vulnerability that may materialise depending on the level of stress he encounters. She said that if he develops an adjustment disorder, he can improve over time but the prognosis will depend on the nature of the stressors and the availability of coping resources. Ms Hurrell said that while his parents can protect and reassure him, there are some changes, such as schooling and housing that will have a direct impact on him.
33.Ms Hurrell agreed that David’s familiarity with the Portuguese language will assist him. She was not aware of the extent of David’s exposure to the Brazilian culture. In response to the proposition that younger children are more adaptable, Ms Hurrell explained that unlike older children, children under the age of 6 are unable to comprehend stressful events and they do not have the necessary behaviours and skills to be able to adapt to the change, for example, by asking questions or seeking help. She agreed that the risk to David would be reduced if the transition to Brazil went smoothly and the disruption was minimal.
34.Ms Hurrell also reported that David may be affected by his parents’ experiences in Brazil. Based on the information provided by Mr and Mrs De Andrade, they are likely to experience significant hardship and disadvantage. She stated that Mr and Mrs De Andrade are in good psychological health. However, the absence of a support network in Brazil and therefore, resources to cope, may have a negative impact on their psychological health which may result in less supportive or sub-optimal parenting practices (Exhibit A2, p 7). Ms Hurrell referred to research to support her conclusion that if Mr and Mrs De Andrade are unable to cope with potential hardship in Brazil, their relationship with David may suffer, thereby causing him distress and adversely affect his development. In evidence, she explained that if parents experience stress and frustration, they may become less warm and responsive to their child who will feel it (Transcript, p 29).
35.In cross-examination, Ms Hurrell agreed that it is difficult to predict what the family will experience in Brazil. Neither Mr nor Mrs De Andrade currently has a vulnerability but a change in their circumstances may make them susceptible to developing a psychological disorder. However, Ms Hurrell agreed that persons in good psychological health who experience change may become susceptible if there is sufficient stress and a change in normal coping support networks (Transcript, p 30). She agreed that Mr and Mrs De Andrade could rely on each other for support and emotional support may also be available from their parents in Brazil (Transcript, p 31).
36.In relation to the second issue, namely, the effect on David if he is separated from his parents, Ms Hurrell recommended that any separation should be as brief as possible. In cross-examination she said that ideally, David should remain with his parents. Having regard to the information obtained from his parents and preschool teacher which is consistent with her own observations, Ms Hurrell reported that David is a sensitive and withdrawn child, with anxious tendencies. He has never been away from his parents because he is reluctant to be separated from them. She concluded that any separation from his family will have a negative impact on David’s psychological functioning. He may experience significant emotional distress upon separation and possible ongoing emotional difficulties during separation (Exhibit A2, p 7).
37.Ms Hurrell reported that even a short-term separation will exacerbate David’s anxious tendencies (she was aware that David had never stayed overnight elsewhere without his parents). She was also of the opinion that as he is already vulnerable, a separation from his parents will expose him to a risk of developing an adjustment disorder characterised by extreme sadness or depression, feelings of hopelessness, anxiety, apprehension, nervousness, worry, conduct problems or sudden changes in mood or behaviours (Exhibit A2, p 8). These symptoms may continue for up to 6 months and are likely to interfere with David’s daily functioning, for instance at school and with his interactions with family and peers. Ms Hurrell stated that any disruption to David’s familial relationship will significantly challenge his coping abilities. His anxious tendencies, together with his age and the nature of the relationship with his mother, place David at a greater risk of developing an anxiety disorder.
38.In her report, Ms Hurrell concluded that David will be at risk regardless of who is appointed as his carer or guardian in Australia. She stated that even if he is placed in a highly nurturing and supportive environment where healthy and positive relationships are quickly established, David is likely to experience significant distress and will remain at risk of poor adjustment (Exhibit A2, p 8).
COUNTRY INFORMATION AND DATA
39.The Minister lodged a bundle of documents which contained information about Brazil (Exhibit R2). The documents include information sheets prepared by the Department of Foreign Affairs and Trade (DFAT), Austrade, Bloomberg, United Nations Children’s Fund (UNICEF) and the United Nations Educational, Scientific and Cultural Organisation (UNESCO); articles from the Rio Times Newspaper and the Elsevier Journal; and data from Trading Economics and the Brazilian government website.
Employment and Economy
40.The information prepared by Bloomberg provides that in 2010, the Brazilian economy was expanding (Exhibit R2, p 13-14, 22-24). In July 2010, unemployment was recorded at 6.9 per cent (which is the second lowest unemployment rate on record) and a decrease from 7 per cent in the previous quarter. Unemployment decreased to 6.4 per cent in February 2011. The economy was regarded as running at full capacity; inflation was not considered to be under threat (the annual forecast was 4.5 per cent); there was growing domestic demand and annual growth in the first quarter of 2010 was 9 per cent. The Consumer Price Index had fallen and the bench mark interest rate of 10.75 per cent was forecast to be stable for the whole of 2010.
41.Brazil is regarded as the seventh largest economy in the world with a Gross Domestic Product in 2010 of $US2.089 billion. Brazil has well developed industries in the agricultural, mining, manufacturing and service sectors. In January 2011 there was a 5.3 per cent increase in the minimum weekly wage to R$545 (Exhibit R2, p 27). However, there are growing inflationary pressures and the challenges facing the government are containing inflation and addressing infrastructure shortages (Exhibit R2, p 17-21).
Government and Political Overview
42.Brazil is a republic and a democracy, comprising 26 states with three tiers of government at Federal, State and Municipal level. Voting is compulsory for all persons over the age of 18 years and optional for persons aged between 16 and 17.
43.Brazil regularly participates in the World Economic Forum and in the G8 and G20 summits. The literature prepared by the DFAT records that the Federal Government has been attempting to improve living conditions for poor people in Brazil. The Ministry of Social Development transfers a stipend to parents to ensure adequate food and clothing, provided that they take their children to regular medical check-ups and to keep them at school. The government estimates that 35 million Brazilians were lifted out of poverty between 2003 and 2010 (Exhibit R2, p 16-17).
Education
44.Public and private education is available in Brazil. Private schools charge fees whereas public schools must offer education without fee. Public education is administered on a tripartite basis between Federal, State and Municipal Governments. Preschool and day care centres are available for children between the ages of three and seven. The first eight years of schooling provides basic education and is compulsory from the age of seven. Secondary education is available for the last three years of schooling after completing primary school. Higher education in universities or other institutions for postgraduate and technical study is also available.
45.The information prepared by Austrade indicates that as at June 2010 there had been a 32 per cent increase in the number of international students to Australia from Brazil in the last 5 years and Brazil is the ninth largest source of international students to Australia. In addition to the international recognition of Australian qualifications, it is reported that Australia is preferred because it offers a relaxed and friendly environment, as well as a high standard of living that is affordable. The Brazilian government is looking to enhance the Brazilian education system through international cooperation (Exhibit R2, p 29).
46.The English language is considered essential for academic and professional progress Brazil. English is studied as part of the secondary school curriculum. However, in public schools language enforcement and the content of the subject is considered to be weak. Therefore, many private schools provide English as a second language.
Health
47.The Unified Health System (SUS) commenced in Brazil in 1988 when a new Federal Constitution was promulgated and as a result, access to healthcare has become a right of every citizen. Prior to 1988, access to healthcare services was restricted to those who could afford private healthcare services and those who had a right under the social security network, being workers with a registered worker’s record book. Before SUS was implemented, 30 million people had access to healthcare services and now the figure has increased to 190 million.
48.Data produced by the Ministry of Health in Brazil on 20 January 2010 provides that SUS administers 5,900 registered hospitals, 64,000 primary healthcare units and 28,000 family healthcare teams. It has also provided and administers mobile emergency healthcare services, mass vaccination programs for children and the elderly, national health policies targeting women’s health and workers’ health. Almost all hospitals in Brazil, including private and university hospitals operate under an agreement with SUS and form a health network to secure access to healthcare services for all Brazilian citizens (Exhibit R2, p 51-52).
49.The DFAT Smart Traveller website strongly recommends travel insurance for those travelling to Brazil. The standard of medical facilities in Brasilia, São Paulo, Campinas, Rio de Janeiro and Curitiba are comparable to Australia. However, the private hospitals in other larger cities provide only adequate services, while outside the larger cities, medical facilities are limited (Exhibit R2, 47). The information on the website was current as at 18 April 2011.
Crime/Civil Unrest
50.The Smart Traveller website provides information to those who are travelling to Brazil. While it is directed to tourists, the website provides useful information about safety and security in Brazil. Tourists are warned about the high levels of serious crime in Brazil including muggings, armed robberies and sexual assaults, particularly in the larger cities. Tourists are warned that if they resist perpetrators, they risk being seriously injured or killed. Carjacking is also common in major cities. Gang violence is common throughout São Paulo and Rio de Janeiro and is especially directed towards police. The website makes it clear that tourists are susceptible to certain crimes. However, there is nothing to suggest that locals are immune (Exhibit R2, p 42‑43).
Housing and Social Security
51.There is nothing in the information lodged on behalf of the Minister concerning the availability, quality or cost of housing. The Ministry of Social Development provides a stipend to parents to ensure children are adequately fed, clothed and educated. However, the stipend is conditional on parents taking their children to regular medical checks and keeping them in school. There is no evidence of a social security type system in Brazil or the availability of income benefits payable to persons who are unemployed, elderly, ill or disabled (similar to those existing in Australia).
Maringa
52.In addition to the country information and data relating to Brazil, the Minister’s representatives also provided an article from the Elsevier Journal entitled “Maringa: A British Garden City in the tropics.” Maringa is the city in which David’s parents are from and where the family will reside if they return to Brazil. The article is written by Joseli Macedo from the University of Florida and is peer reviewed.
53.A web search of Elsevier Journal indicates that it is a Netherlands based publisher of scientific and health information servicing 30 million scientists, students and health and information professionals worldwide. The article is a profile of Maringa from a planning and development perspective. However it also describes the city’s socioeconomic structure. It is highly technical in content. For example, it refers to a Gini Coefficient, which another web search indicates that to be a statistical measure of inequality of distribution of income or wealth.
54.The abstract to the article describes Maringa being designed on British based Garden City principles, has regional cities connected by rail and had the highest growth rate of all cities in Parana in the 1990s. Elsewhere in the article, Maringa is described as the third largest city in Parana, its economy is essentially based on agriculture, the population is city based and the residents enjoy a good quality of life.
55.Nothing is known about either the author or the credibility of the journal in which the article was published. In the circumstances, I acknowledge the contents of the publication but I cannot attach much weight to it.
SUBMISSIONS
Applicant
56.In light of recent decisions in this Tribunal and the Federal Court, Mr Gilbert, on behalf of the applicant acknowledged that the ACIs are not ultra vires. He conceded that David does not satisfy the policy guidelines set out in the ACIs and therefore, the only issue to be determined is whether David’s circumstances are sufficiently unusual, to warrant the exercise of the discretion to approve his application.
57.Mr Gilbert submitted that David’s circumstances are unusual and it is in his best interests to be conferred with Australian citizenship. If his application is not approved and he is forced to return to Brazil, he will suffer because of the uncertainty that his family is likely to face in terms of accommodation, employment and financial security. This uncertainty will be exacerbated by the absence of support networks in Brazil.
58.Referring to the country information, Mr Gilbert submitted that it is of a general nature. Although it suggests that Brazil’s economy is improving, it does not provide a sufficient basis on which to conclude that Mr and Mrs De Andrade will easily find employment if and when they return to Brazil. The article on Maringa is also general and sets out the background and history of the city. The article does not provide in-depth analysis of the current economic climate. However, it does suggest that a number of persons are earning less than the minimum monthly wage. Mr Gilbert referred to Mr and Mrs De Andrade’s evidence about acquaintances who have struggled to find employment in Brazil.
59.Mr Gilbert distinguished David’s circumstances from those in Re Fagundes and Minister for Immigration and Citizenship [2011] AATA 493 and Re Da Silva and Minister for Immigration and Citizenship [2011] AATA 494 on the basis that the children’s families in those cases had a significant number of family members in Brazil with whom they could reside, at least initially. Mr and Mrs De Andrade each have one parent living in small rented accommodation and surviving on a small pension. Therefore, neither parent is in position to provide accommodation or financial support to David’s family.
60.In relation to Mr and Mrs De Andrade’s employment prospects, Mr Gilbert submitted that despite Mrs De Andrade’s qualifications, she has not worked in her area of expertise since 2002. She would need to refresh her skills which will require time and money. She is due to give birth in December and as a young mother will need to care for her infant directly. Therefore, further training and employment are not realistic options for her in the foreseeable future even if her own mother is available to assist her. Mr Gilbert submitted that little weight should be placed on the possibility of Mrs De Andrade’s mother caring for the children to allow her to return to work because there was no direct evidence about her willingness or capacity to do so.
61.It was also submitted that Mr De Andrade’s employment prospects are limited. The skills he acquired in Australia are not easily transferable to Brazil and while he has experience in sales, he does not have a motor vehicle which is necessary. Even if he could obtain work in sales, his income would not be sufficient to provide for his wife, two children and a third in December.
62.Mr Gilbert referred to the opinions of Ms Hurrell, particularly in the context of Mrs De Andrade’s view that David’s interests would best be served in Australia even if she and her husband were forced to return to Brazil with their younger son. Mr Gilbert submitted that the decision to leave him behind was difficult for David’s parents and the fact that they maintained that position, despite the views of Ms Hurrell, should not go adversely to their credit. Mr and Mrs De Andrade considered all the circumstances and made a decision based on what is best for their son with a caveat that if the separation causes him the level of distress envisaged by Ms Hurrell, they would have no choice but to have him return to Brazil with them.
63.Mr Gilbert submitted that the Tribunal cannot assume the whole family will have to return to Brazil because that would involve pre-empting the Minister’s decision. If the Tribunal accepts Ms Hurrell’s opinion, it follows that David’s interests would best be served if he remains in Australia with his family. However, it is open for the Tribunal to find that his interests will not be served by returning to Brazil with his family. Mr Gilbert submitted that David should be conferred with Australian citizenship because it is in his best interests to remain in Australia, the country that he is familiar with and which offers him certainty and security. If separated from his parents, he will be cared for by a Portuguese speaking family with whom he is familiar and comfortable.
Respondent
64.Mr Horan agreed on behalf of the Minister that the only issue before the Tribunal is whether, having regard to the full circumstances of the case, including David’s best interests, the application warrants approval because of the unusual nature of his circumstances. Mr Horan identified two factors that may be relied on to distinguish this case from others. The first is the absence of family in Brazil who would be able to provide support whether financial or otherwise. The second is Mr and Mrs De Andrade’s decision to leave David in the care of a family friend in Australia if they return to Brazil.
65.In relation to the absence of family in Brazil, Mr Horan submitted that family does exist in Brazil, namely David’s maternal grandfather and his paternal grandmother. His maternal grandmother resides with the family in Australia and it is likely that she will also return to Brazil with the family. Therefore, all of David’s family will be in Brazil. Although his grandparents are elderly and unable to provide financial support, they will be available to the family if required. Therefore, Mr Horan submitted that it cannot be argued that the family will be returning to Brazil without access to family members, especially David’s maternal grandmother with whom he is familiar.
66.Mr Horan emphasised the significance of the second point of distinction, namely the decision to leave David in Australia with Mrs Caldeira. He submitted that if his family return to Brazil, he will have no family in Australia. Having regard to the report of Ms Hurrell, the paramount consideration is that David remains in the family environment that he has always known and which is critical to his emotional and psychological well-being.
67.Mr Horan submitted that on the evidence, it is not open to the Tribunal to find that David’s interests will best be served in the care of Mrs Caldeira. Unlike the circumstances in Re SNMX and Minister for Immigration and Citizenship (2009) 110 ALD 645, David has no family connection with Mrs Caldeira and her carer responsibilities have been limited to irregular short periods of care during the day. Mrs Caldeira was also somewhat equivocal about the duration and practical aspects of the care arrangement. On the basis of Ms Hurrell’s evidence, Mr Horan submitted that this arrangement would expose David to a high risk of psychological harm. He contended that it will be in David’s best interests to remain with his parents regardless of where that will be.
68.In relation to the situation the family will face if they return to Brazil, Mr Horan submitted that Mr and Mrs De Andrade are assuming the worst without making concrete enquiries. It cannot be said with any certainty that they will not be able to support themselves in Brazil. He submitted that it is inevitable that the family will experience some difficulties, the standard of living will not be the same and there is some uncertainty. However, there is nothing particularly unusual about this family. There is no sound indication that neither of David’s parents will be unable to find work and perhaps if there was, their situation would be somewhat unusual. Mr and Mrs De Andrade were employed before coming to Australia and they are both skilled. Mrs De Andrade also has tertiary qualifications. Mr Horan referred to Mr De Andrade’s family assets and submitted that although the evidence was unclear, it is likely that the family will have means to support themselves in Brazil.
69.Mr Horan also submitted that it is unlikely that David will be exposed to any undue risk to his safety or security in Brazil and he will not be disadvantaged in terms of his education. David is fluent in Portuguese and has not yet started primary school. Therefore, there is nothing unusual about David’s circumstances to warrant the exercise of the discretion in his favour.
CONSIDERATION OF THE ISSUES
70.The parties agree that the only issue before me is whether, having regard to the full circumstances of the case, including the best interests of the child, David’s application warrants approval because of the unusual nature of his circumstances. It follows that there is no dispute that David is eligible to become an Australian citizen because he is under the age of 18 (s 21(5) of the Act). There is also no dispute that he does not satisfy the policy guidelines set out in the ACIs because he does not hold a permanent visa and would not suffer significant hardship or disadvantage within the meaning of Attachment B. Having regard to the decision of Marshall J in Singh v Minister for Immigration and Citizenship [2011] FCA 685 and my earlier decisions in Re Peratz-Santana and Minister for Immigration and Citizenship [2001] AATA 492, Re Fagundes and Re Da Silva, the ACIs are not ultra vires.
71.Consistent with Australia’s international treaty obligations, in considering the full circumstances of the case, I must have regard to David’s best interests. Article 3(1) of the Convention on the Rights of the Child (the Convention) requires that in all actions involving children, the best interests of the child shall be a primary consideration. Australia is a signatory to the Convention and ratified the treaty in November 1989. While the Convention has not directly become law in Australia, the Declaration of the Rights of the Child is included in Schedule 3 of the Australian Human Rights Commission Act 1986.
72.The ACIs do not define or provide guidance as to what constitutes the best interests of the child. A definition is not found in the Convention itself. However, the Preamble to the Convention recognises that children are entitled to special care and assistance, that families are a fundamental group of society and are a natural environment for the growth and wellbeing of children who should be permitted to grow in a family environment in an atmosphere of happiness, love and understanding.
73.In broad terms, I am satisfied that the best interests of a child are served by allowing a child to develop and grow in a safe, stable and emotionally secure environment and by permitting the child to enjoy continuing opportunities of education and a high standard of health.
74.The ACIs require unusual circumstances before the discretion is exercised in favour of an applicant. The parties adopted the submissions made in similar proceedings before this Tribunal in Re Peratz-Santana, Re Fagundes and Re DaSilva. In those proceedings, the word unusual was the subject of extensive submissions and the parties referred to my decision in Re Zlatanovskiand Minister for Immigration and Citizenship (2010) 114 ALD 452 where I adopted the dictionary definition that was applied by Moore J in K v Cullen and Others (1994) 126 ALR 38. Moore J decided that the words unusual and exceptional both mean out of the ordinary (at 44-45) which is consistent with the interpretation adopted by Lingren and Emmett JJ in An v Minister for Immigration and Citizenship [2007] FCAFC 97 at [7] and [82]. Mr Gilbert also referred to the decision of the High Court in Collector of Customs v Agfa-Gevaert Ltd (1996) 186 CLR 389.
75.In Agfa the High Court had to decide on the appropriate interpretation of a composite phrase that did not have a trade meaning but consisted of words that did have a trade meaning. The Court concluded that if a composite phrase does not have a trade meaning, a Court or Tribunal can then take notice of the trade meaning of a word or words within the phrase, provided that the interpretation of those words does not produce a result which is absurd, unworkable, impracticable, inconvenient, anomalous, illogical, futile, pointless, or artificial (at 401).
76.In An, the Full Court was concerned with the interpretation of the word exceptional. Lindgren J referred to Agfa and decided that the ordinary meaning or common understanding of a non-technical word more often than not is a matter of fact. However, questions of law often arise as to whether the word in issue is to have an ordinary non-technical interpretation and if so, whether the interpretation is affected by the statutory context in which it is found (at [4]). Referring to the decision in Agfa in the context of statutory context, His Honour concluded (at [4]):
… the “statutory context” refers not only to the immediately surrounding text, but also to the piece of legislation as a whole, and its purpose or object. Context provides a sound starting point for construction in all cases, even though the conclusion may ultimately be reached that the word is hardly influenced by context at all.
77. His Honour said (at [7]):
The word "exceptional" is a simple non-technical word. It means "unusual" or "out of the ordinary" and is used in that sense in Sch 2, cl 856.213(c) of the Migration Regulations 1994 (Cth) (the Regulations). The word is not, however, of the obviously evaluative kind referred to above. It is necessary to carry out the legal task of exploring the meaning of the word in the particular regulatory context in which it occurs with a view to identifying, if it can be done, what is the "usual" or "ordinary" case that was in contemplation against which exceptionality is to be measured. As will appear, once this task is completed, it becomes clear that it was open to the Tribunal, if not required of it, to find that the position in question was not exceptional.
78.The decision in An concerned the interpretation and application of the word exceptional. I am concerned with the word unusual fond in the ACIs. In examining the word exceptional, Lingren J found that there was an equivalent meaning between exceptional and unusual. Of significance, I think, is the process set out by His Honour namely, that the usual or ordinary case needs to be considered and against that exceptionality is measured.
79.In the policy, the word unusual is found within the composite phrase the unusual nature of those circumstances. Consideration must be given to the full circumstances of the case (which include David’s best interests as a primary consideration) in exercising the residual discretion conferred by the ACIs.
80.David was born in Australia and this is the only country that he knows. When considering his best interests, I accept the evidence of Ms Hurrell and have no doubt that his interests will be best served by the continued care and support of his family. However, if David is conferred with Australian citizenship, there is no guarantee that the status quo will be maintained because his family may be required to return to Brazil.
81.Mr and Mrs De Andrade have decided that if his application is successful and they are forced to return to Brazil, they will leave David in the care of Mrs Caldeira and her family. They maintained that view despite the opinion of Ms Hurrell who advised that any separation from the family will have an adverse effect on David’s psychological functioning. The well-intended belief of Mrs Caldeira that David will settle down in a couple of weeks whilst living with her and her family is, with respect, naïve.
82.I accept Ms Hurrell’s evidence that David has anxious tendencies and a separation will expose him to a high risk of developing an adjustment disorder, the symptoms of which may continue for 6 months and impair his daily functioning. The care arrangements proposed by Mr and Mrs De Andrade are likely to expose David to emotional harm and are not in his best interests. I accept Mr Gilbert’s submission that I cannot assume the family will be required to return to Brazil if David is conferred with Australian citizenship. However, it is a possibility that I cannot ignore. Importantly, I cannot ignore the risk that David will be exposed to if he is separated from his family.
83.If David’s application is refused, he will inevitably be required to return to Brazil with his family. In terms of his education, I am not satisfied that David will be disadvantaged. Public schooling is available in Brazil and there is nothing to indicate that he would be excluded from it. I note that unlike Australia, children in Brazil start primary school at the age of 7 and pre-school is available for younger children. David now attends pre-school and presumably will begin primary school next year. If he returns to Brazil he will be required to attend pre-school for approximately 2 more years. While his primary education will be postponed, the additional time in pre‑school may allow him time to adjust to his new environment in preparation for primary school. David is fluent in the Portuguese language which will assist in the transition. There is no evidence to satisfy me that he will be adversely affected scholastically, if he continues his education in Brazil.
84.David is 4 years old and has not yet developed a sense of independence. Unlike older children, he is likely to be more adaptable. I accept that he may not have the coping mechanisms to cope with a dramatic change. However, the extent of the change and the nature of the transition is difficult to predict and will depend largely on his parents’ circumstances, including their willingness to offer emotional support to him, their ability to secure employment and accommodation, and the availability of support from the grandparents.
85.The country information points to a growing economy in Brazil with a decline in the unemployment rate. However, the data is general and I cannot find with any certainty that Mr and Mrs De Andrade will or will not secure employment. They were both employed prior to leaving Brazil. Mr De Andrade has experience in sales and the construction industry, although I accept that the skills acquired in Australia as a cement renderer are not easily transferable because of the nature of the industry in Brazil. He may be overlooked on account of his age and the fact that he has been absent from the country since 2002. Mr De Andrade was pessimistic about his employment prospects because of the experiences of friends in Brazil.
86.Mrs De Andrade has qualifications in information technology. Although she has been out of the workforce for almost 10 years, she is more likely to secure employment in Brazil if she completes a refresher course to update her skills. However, she is a mother of 2 young children with a third due in December 2011. It is impractical and unrealistic to expect her to return to work immediately or to complete a training course, even with the support of her mother. This may be an option in the future when her children are of school age which will not be for some years.
87.The availability of accommodation and support to the family if they return to Brazil was the subject of extensive submissions during the hearing. There is no evidence to suggest that rental accommodation will not be available for the family in Brazil. However, Mr and Mrs De Andrade will need time to search and their ability to secure accommodation will depend on the ability of Mr De Andrade, at least, to secure employment. Unlike the applicants’ parents in Re Fagundes and Re Da Silva, Mr and Mrs De Andrade each have one elderly parent living in a one bedroom apartment in Brazil.
88.Mr Horan suggested that accommodation will be available to David and his family in the short‑term with Mrs De Andrade’s father. I do not accept this submission. I cannot accept that a family of 5, including a newborn can be expected to live in a one bedroom apartment even for a short period. The family could separate so that some live with one parent and the others with the other parent. This is not a viable option when Mr De Andrade will need to be out looking for work nor is separation beneficial to the family unit or in the best interests of the children. The issue of accommodation could be overcome if Mr and Mrs De Andrade organise appropriate housing before they return to Brazil with the assistance of their parents.
89.A distinguishing feature in this application is the lack of extended family and friends in Brazil. David’s family will need time to adjust and settle in their new environment. Mr De Andrade will need time to secure employment and long-term accommodation if not already organised. During that time, the family may require temporary housing and some financial support. They will inevitably require emotional support.
90.Mr and Mrs De Andrade’s parents each live on a pension and I accept that neither is in a position to provide financial support to the family. Their parents will undoubtedly provide some emotional support. Unlike the circumstances in Re Da Silva, Re Fagundes and Re De Vasconcelos and Minister for Immigration and Citizenship [2011] AATA 534, I am concerned that two elderly parents will not provide a sufficient support network to see the family through the transition. Although Mrs De Andrade’s mother is likely to return to Brazil with the family, she too will have to adjust to the change therefore, she may only be able to provide limited support. I accept Ms Hurrell’s evidence that the absence of a support network may have an adverse effect on Mr and Mrs De Andrade depending on the level of stress they are exposed to. A negative impact on their psychological health may result in less supportive or sub-optimal parenting practices thereby having an adverse effect on David.
91.The Convention contemplates a healthy and safe environment for children. It would appear from the country data that in recent years there has been a considerable expansion in medical facilities and healthcare initiatives throughout Brazil. As citizens of Brazil, David and his family will be entitled to health services should it be needed. There is no evidence to satisfy me that David’s health will be jeopardised in Brazil.
92.Mr De Andrade said that he is concerned about the crime and insecurity in Brazil. The country information provides that Brazil is subject to high levels of crime, particularly in the larger cities. It would be naïve to assume that David will be immune from the risk of crime. However, he is 4 years old and dependant on his parents. Accordingly, I expect that he would more often than not be in their care and supervision, unlike older persons who are more likely to be independent of their family and therefore, at greater risk of criminal activity.
93.There are two unusual features about this application. The first is his parent’s decision to leave David in Australia if his application succeeds and they are required to return to Brazil. On the evidence of Ms Hurrell, this separation, if it eventuates, will have a negative impact on David and he will be at risk of developing an adjustment disorder characterised by extreme sadness or depression, feelings of hopelessness, anxiety, apprehension, nervousness, worry, conduct problems or sudden changes in mood or behaviours. While I accept that the decision to leave David in Australia was difficult for Mr and Mrs De Andrade, I am not satisfied that it is in his best interests.
94.The other unusual feature is the absence of adequate and indeed necessary support in Brazil. Depending on the level of stress Mr and Mrs De Andrade experience on their return to Brazil, on the evidence of Ms Hurrell, the absence of a support network may make them susceptible to developing a psychological disorder which may in turn affect their parenting and relationship with David. Unlike the psychological harm David will face if separated from his family, the extent of any harm to him because of the lack of support in Brazil cannot accurately be predicted. It depends largely on the family’s circumstances in Brazil, including the availability of accommodation and employment and his parents’ ability to cope with the stressors they encounter.
95.I accept that a move to Brazil will be difficult for the family and no less for David. He will have to adjust to a new way of life and a different standard of living. These difficulties may be exacerbated by the absence of support networks which the family is currently enjoying in Australia. Ms Hurrell was unable to predict with any certainty the impact on the family of the absence of support in Brazil. However, on the evidence, I am satisfied that David’s interests will be served best if he remains with his family, regardless of where that will be. There is a possibility that if David’s application succeeds and his family are required to return to Brazil, he will be left in Australia without family. Ms Hurrell advised against separation because it will result in psychological harm to David. Even if he remains in a highly nurturing and supportive environment, Ms Hurrell concluded that David was at risk of significant distress and poor adjustment.
96.On balance, I have concluded that it would be unconscionable to have an emotionally vulnerable 4 year old remain in Australia, absent all family members. That his parents may be required to leave Australia is a consequence of their status in Australia. Their rights, if any, are determined under the Migration Act 1958 and are not an issue in this review. David is their son and for reasons expressed above, he should be with them. Having to leave Australia and necessarily adjust to life in Brazil may be difficult. However, there is nothing so unusual about David’s circumstances to warrant the exercise of the discretion in his favour. I am satisfied that conferring David with Australian citizenship is not in his best interests and the discretion in s 24(2) of the Act should not be exercised in David’s favour.
97.For all of the above reasons, I am satisfied that the decision under review should be affirmed.
I certify that the ninety-seven [97] preceding paragraphs are a true copy of the reasons for the decision herein of
Mr John Handley, Senior Member
Signed: Olympia Sarrinikolaou
Legal Assistant
Date of Hearing 18 July 2011
Date of Decision 21 October 2011
Counsel for the Applicant Mr G. Gilbert
Solicitor for the Applicant Ms L. Stewart, Clothier Anderson & Associates
Counsel for the Respondent Mr C. Horan
Solicitor for the Respondent Ms A. Collins, Clayton Utz
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