Re Hong and Minister for Immigration and Citizenship
[2011] AATA 242
•12 April 2011
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2011] AATA 242
ADMINISTRATIVE APPEALS TRIBUNAL )
) No: 2010/2156
GENERAL ADMINISTRATIVE DIVISION )
ReNhayoung HONG
Applicant
AndMinister for Immigration and Citizenship
Respondent
DECISION
TribunalMr RP Handley, Deputy President
Date12 April 2011
PlaceSydney
DecisionThe decision under review is affirmed.
......................[sgd].....................
Mr RP Handley
Deputy President
CATCHWORDS
IMMIGRATION & CITIZENSHIP – refusal to grant citizenship – applicant between 16 and 18 years of age at time of application – Australian Citizenship Instructions – applicant does not meet policy requirements - circumstances not unusual – decision under review affirmed
RELEVANT ACT
Australian Citizenship Act 2007 (Cth): ss 21, 24
CITATIONS
Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24; (1986) 10 ALN N109; (1986) 66 ALR 299; (1986) 60 ALJR 560; [1986] HCA 40
Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634
Re Pak and Department of Immigration and Citizenship [2010] AATA 157
Re Kim and Minister for Immigration and Citizenship [2010] AATA 198
OTHER AUTHORITIES
Australian Citizenship Instructions (in effect 21 September 2009 to 8 November 2009)
REASONS FOR DECISION
| 12 April 2011 | Mr RP Handley, Deputy President |
Nhayoung HONG has applied to the Tribunal for a review of a decision of a delegate of the Minister of Immigration and Citizenship to refuse her application for Australian citizenship by conferral. The issue for the Tribunal is whether this is the correct or preferable decision.
Background
Ms Hong was born in South Korea in January 1993 and is aged 18. She arrived in Australia with her parents in July 2005 on a subclass 976 Electronic Travel Authority (temporary) visa – a tourist visa - valid for three months. Three months later, she applied for a subclass 457 Business (long stay – temporary) visa as a dependant of her father and was granted a bridging visa in association with her application. Her father’s application was refused and he applied for a review by the Migration Review Tribunal which affirmed the decision. Ms Hong then applied for a Protection Class XA visa as a dependant of her mother and was granted a bridging visa in association with this application. There followed a series of other applications by her parents and dependent applications by Ms Hong and associated bridging visas. None of her parents’ applications have been successful. (Ms Hong’s current bridging visa expires 28 days after the resolution of her application for citizenship.)
On 2 October 2009, Ms Hong lodged an application for citizenship by conferral pursuant to s 21(5) of the Australian Citizenship Act 2007 (the Act). The application was refused by a delegate of the Minister on 11 May 2010 on the ground that her circumstances did not meet the relevant policy requirements outlined in the Australian Citizenship Instructions (the Instructions). On 31 May 2010, Ms Hong applied to the Tribunal for a review of this decision.
The Legislative Framework and Policy
Section 21(1) of the Act provides that a person may make an application to the Minister to become an Australian citizen. At the time Ms Hong applied for citizenship, s 21(5) provided:
(i) 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.
The power to approve, or to refuse to approve, a person becoming an Australian citizen is set out in s 24 of the Act, which states:
Minister's decision
(1)If a person makes an application under section 21, the Minister must, by writing, approve or refuse to approve the person becoming an Australian citizen.
(1A)The Minister must not approve the person becoming an Australian citizen unless the person is eligible to become an Australian citizen under subsection 21(2), (3), (4), (5), (6), (7) or (8).
(2)The Minister may refuse to approve the person becoming an Australian citizen despite the person being eligible to become an Australian citizen under subsection 21(2), (3), (4), (5), (6) or (7).
Section 24(2) does not state the factors that may be taken into account when refusing to grant citizenship, and the discretion of the decision-maker is therefore similarly unconfined (see Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 per Mason J at 40).
The Government has, however, developed policy in the form of the Instructions to provide guidance to decision-makers. The relevant version of the Instructions is that in effect immediately before 9 November 2009 when s 21(5) of the Act was amended. The introduction to the Instructions states that their role is:
... to support the Australian Citizenship Act 2007. The instructions provide guidance on policy in relation to the interpretation of, and the exercise of powers under, the Act and the Regulations. Decision makers should be mindful that policy must not be applied inflexibly. Policy cannot constrain the exercise of delegated powers under the Act.
Decision-makers should generally apply policy such as the Instructions unless the policy is unlawful or its application produces an unjust result in the circumstances of a particular case: Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634. I am not satisfied that there is any good reason why the Instructions should not be followed in the present case.
The Instructions specify criteria for determining citizenship applications. The Instructions in effect immediately prior to 9 November 2009 stated relevantly:
Person aged under 18 years (s 21(5))
… 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 set out below.
Best interests of the child
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.
…
POLICY GUIDELINES
Applicants aged 16 years and over and under the age of 18
…
Applicants aged 16 years and over and under the age of 18 would usually be approved under s24 if they meet the following policy guidelines:
·is a permanent resident
·satisfies the residence requirements
·the applicant need not meet the residence requirements if this would cause significant hardship or disadvantage. See Attachment B - Significant hardship and disadvantage for guidance
·understands the nature of an application
·possesses a basic knowledge of the English language has an adequate knowledge of the responsibilities and privileges of Australian citizenship at the time of decision
·is likely to reside or continue to reside, or maintain a close and continuing association with Australia.
…
In the case of an applicant who does not meet the policy guidelines above, decision makers must consider the full circumstances of the case, including the best interest of the child, to determine whether the application nevertheless warrants approval because of the unusual nature of those circumstances.
Attachment B to the Instructions provides guidance on what constitutes significant hardship and disadvantage. Attachment B states that the onus is on the applicant to provide evidence to support the application and that the applicant would normally be required to demonstrate some or all of (1) an inability to gain employment because employment is restricted to Australian citizens, (2) difficulty of international travel because a person is unable to obtain or use a passport from their country of nationality/citizenship, and (3) academic or other potential is limited or restricted because of a lack of Australian citizenship. Each application must be assessed on its merits but while “policy is not to be applied inflexibly, it must be applied, unless there are special circumstances that would warrant consideration outside that policy”.
Thus the Instructions relevantly identify three primary considerations to be taken into account by the decision-maker: the best interests of the child, the legislative requirements and the policy guidelines. Ms Hong was aged under 18 at the time she made an application and therefore meets the legislative requirements in s 21. Ms Hong does not satisfy the policy guideline requiring that she hold a permanent visa. However, consideration must also be given to whether she would suffer significant hardship or disadvantage if her application for citizenship is not approved. Where the policy guidelines are not met, the decision-maker must consider the full circumstances of the case, including the best interests of the child, to determine whether the application should, nevertheless, be approved because of the unusual nature of the circumstances.
The issues before the Tribunal are, therefore, the best interests of the child, whether Ms Hong would suffer significant hardship or disadvantage if her application for citizenship is not approved, and whether there are unusual circumstances in her case warranting consideration of her application outside the stated policy requirements.
The Applicant’s Evidence
Dr Kim
A psychologist, Dr Jung Sook Kim, provided a report dated 3 September 2010 and gave evidence at the hearing. In her report, Dr Kim said Ms Hong became “very emotional and distressed when we began to discuss her family’s visa issues”. She noted that Ms Hong spoke excellent English and was also “proficient in Korean”. Dr Kim said:
Nhayoung is beginning to present signs of emotional disturbance stemming from her consistent concerns about her parents and her own unclear future. She presented a number of symptoms including anxiety, a sense of hopelessness, feeling fearful and anxious about being deported, depressed as she feels she is different to her friends who are all Australian citizens, irritability, difficulty coping, agitation, unable to relax due to intrusive thoughts in relation to her family’s current situation, decreased motivation and confidence stemming from her insecure social status and her limited ability to make plans due to her uncertainty as to where she will be living in the near future.
…
In my clinical opinion, Nhayoung has been suffering from Adjustment Disorder with mixed symptoms of depression and anxiety. … Her psychological condition is at a highly unstable and delicate stage at present, partly due to the onset of puberty and partly due to the build-up of long-standing visa issues which may come to an adverse solution in the near future.
Dr Kim said that Ms Hong “is not coping with her life stress” and needs ongoing psychological intervention. She recommended that Ms Hong seek help from “a psychologist or counsellor who understands her culture and circumstance”.
In oral evidence, Dr Kim said she left Korea 14 years ago, having completed a Masters degree in educational psychology and having worked with children who have learning difficulties at school. She subsequently completed a doctorate and, for the past seven years, has practised as a psychologist in Strathfield, mainly with Korean speaking people. Dr Kim said she visits Korea every two or three years for work purposes including giving lectures and advising on Korean students studying in Australia. She last visited Korea two years ago when she was part of an advisory group on relations between North and South Korea. During that visit she also had discussions with colleagues there over the treatment of children in the Korean education system. Dr Kim said she likes to keep in touch with Korean issues, in part because she writes a column in Korean dealing with mental health issues for a weekly newspaper and because she sometimes advises parents that they should take their children back to Korea for their education if they are encountering problems in Australia.
Dr Kim said she first met the Hong children when their father brought them to her for assessment on 6 July 2010. Dr Kim referred Ms Hong’s case to the Transcultural Mental Health Service and the Service referred her back to Dr Kim for treatment. Dr Kim has subsequently seen Ms Hong on three occasions, most recently on 1 March 2011. She said that Ms Hong appeared to be very confused because of her visa problems and was having difficulty sleeping. While she had previously diagnosed Ms Hong as suffering from an adjustment disorder on 3 September 2010, Dr Kim said this appeared to have now developed into a major depressive disorder. Although Ms Hong reports suicidal ideation, Dr Kim said the risk of suicide is very low. She said that Ms Hong’s confidence and motivation and her academic results seem to have declined. She is suffering stress associated with her situation which, if removed, will allow her to recover over time. Dr Kim said she recommended that Ms Kim should take Ms Hong to see their family doctor to obtain medication for depression but Ms Kim refused to do so because of the stigma that attaches to mental illness in the Korean community.
Dr Kim speculated that Ms Hong might run away from home if she has to return to Korea because she has lost respect for her parents, their having caused her visa problems, in which case she might turn to prostitution because there is no social security system in Korea. Dr Kim said Korea is a hard country to live in if you do not have money and it is very competitive academically. Overseas educated Korean students are assessed strictly if they seek access to the Korean education system. However, on the other hand, the fact that Ms Hong is proficient in English may assist her in gaining entry into University in Korea.
Dr Kim said she had three sessions with Ms Hong in which Dr Kim tried, unsuccessfully, to use cognitive behaviour therapy (CBT) to change Ms Hong’s thinking system. When it became clear that CBT was not going to work, Dr Kim decided that further sessions would currently be a waste of time and it would be better to keep the three remaining sessions of the six authorised by the Transcultural Mental Health Service for later. Dr Kim noted that Ms Hong is quite underdeveloped emotionally and despite being academically bright, she needs the support of her parents.
Ms Hong
In a statement dated 30 September 2009 provided to the Minister, Ms Hong said she was about 12 years and six months old on arriving in Australia, not having completed the first semester of Year 7 at school in Korea. She said in Korea, “The school life was very emotional, hard working and, of course, really competitive”. After arriving in Australia, Ms Hong attended an intensive English language program for three terms before enrolling at high school where she is now in Year 12 studying economics, physics, chemistry, maths, and advanced English. Her academic results from past years are excellent.
Ms Hong also provided an undated statement for the present proceedings and gave oral evidence at the hearing. Ms Hong wants to study medicine at university. She said that if she has to return to Korea, she will be disadvantaged by the lack of financial support to pay the required fees and her poor Korean language skills. Her Korean oral and written skills have not advanced and she now feels more comfortable speaking English. She would face significant hardship studying in Korea. It would take her years to adjust.
Ms Hong said she considers herself Australian and feels she has no personal ties in and no connection with Korea. She loves the “Australian lifestyle and educational system”. Her friends are largely Australian. Ms Hong said she only became aware of her visa status last year when she saw her parents “fighting about it”. It is her visa status that has caused her psychological stress. She feels “really anxious and stressed because of the fear that I might have to go to Korea”. She described herself and her siblings as “innocent victims” who are “in this situation because of my parents and as well as immigration policy”.
Ms Hong said apart from studying, for the past seven months she has been working part-time as a waitress, working 16 hours a week and earning about $12 an hour. She gives some money to her parents to assist with the support of the family and spends $20 to $30 per week on herself. So far she has saved about $3,000 and believes she could support herself financially if her parents have to return to Korea if Mrs Lee, their family friend, could provide her with accommodation. Ms Hong said if her younger sister and brother are allowed to stay in Australia, after she has finished Year 12, she would defer going to university for a year or more and work full-time in order to support them.
Mr Hong
Mr Hong said that before he came to Australia in 2005, he worked as a navigator in the maritime industry. After leaving school, he studied at the maritime university and then spent six years in the Navy before moving to work in commercial shipping. Altogether, he has about 20 years maritime experience. To work as a navigator, he needed various International Maritime Organisation certificates, including as a deck operator and radio operator. He last renewed his certificates (which appear to be of five years duration) shortly before he left for Australia and they have now expired. To revalidate these certificates, he would have to sit a test in six subjects. This requires studying for six months for each subject and then only 50% of candidates pass. Mr Hong, who is now aged 50, said that if he has to return to Korea, it would take several years to sit for all the required certificates and, if he passed, most companies are employing younger people. While if he had stayed in his occupation, he would probably be the captain of a smaller vessel, such jobs will now have been filled by his junior colleagues and he lacks confidence and feels it would be almost impossible to resume his occupation. If he has to return to Korea it will be very difficult to achieve a minimum standard of living for his children.
Mr Hong said his wife came to Australia first in 2003 to escape her religious problems. He continued working and their three children were cared for by his brother’s family for about two years while he was away. He decided to bring the children to Australia to join his wife because they were so sad at being separated from their parents.
Mr Hong said he and the children entered Australia on three‑month visitor visas in July 2005 and before the three months had expired he had been investigating how he might be able to obtain sponsorship for a class 457 visa. He was aware that his wife’s visa had already expired. Mr Hong described how he had sought help from a migration agent who, he suggested, was responsible for his wasting between $50,000 and $60,000 of the $100,000 he had in the bank on arrival. The rest of his money was spent on living expenses.
Mr Hong started working as a cleaner for Mrs Lee who also employed his wife. He and his wife have now established their own cleaning business and clean 30 to 40 homes. He earns $1,000 to $1,500 per week. He and his wife have been able to support their children, send them to school, keep them happy, and at the same time pay their taxes and abide by Australian law.
Mr Hong said he has a sister in Korea and three brothers. It was his older brother who looked after his three children for two years. Mr Hong obviously felt guilty about leaving his children to be looked after by his brother for such a period and indicated that he would not seek help from any of his siblings if he has to return to Korea (in order not to impose a burden on them for what appear to be cultural reasons). Mr Hong said he only has limited ongoing contact with his siblings but said that if he was in Korea it is likely they would all get together on special occasions at least twice a year. Mr Hong said neither he nor his wife have any family in Australia.
Mr Hong said his eldest daughter was happy until she began to learn more of their circumstances. She has lost confidence in him and now will not discuss their problems. His whole family are under severe stress and no longer laugh. His daughter is strong willed and currently managing part-time work in a restaurant as well as studying. If the rest of the family has to return to Korea, she could manage independently and Mrs Lee, his wife’s friend, has promised to provide assistance. Mr Hong said he has spoken with Mrs Lee about this. He has known her for about five years and his wife has known her for about eight years. They get on together socially and Mrs Lee has babysat their children. She has two children but only her younger child, her daughter, who is at university, is living at home with her. She has a two‑storey house with a number of spare bedrooms and is a lot better off than Mr Hong and his wife. Mr Hong said he and his wife would work hard in Korea to try and support their children in Australia. If he has to return to Korea and is permitted to visit his children in Australia in the future, he will do so.
Ms Kim
Ms Kim said she came to Australia in 2003 to escape members of her church who were putting pressure on her in Korea. She felt trapped and, for example, even missing attending church once a week would result in them coming to her house and pressuring her. After Ms Kim left Korea, church members continued to attend her house and abused her children. Ms Kim said she overstayed her visitor visa because she did not want to return to Korea. Initially, on arrival, Ms Kim had $10,000 with her and her husband sent her money every month. After about two years, Ms Kim started working as a cleaner. She said the Korean church people have not contacted her in Australia – they do not know where she is. If she has to return to Korea, she will not live in the same area as previously in order to avoid them.
Ms Kim said it was extremely difficult being in Australia and thinking of her children being back in Korea. She discussed with her husband bringing the children to Australia and, in December 2004, they decided to do so. They did not foresee the problems they have encountered. Ms Kim said she had learned that they could apply for a class 457 visa and, when he arrived, her husband searched the internet for opportunities. This was how he learned of the migration agent who was responsible for the loss of so much of their money.
Ms Kim said they did not explain their visa status to their children. It was only around September 2010 that their oldest daughter became aware of her visa status. It was at about that time that Ms Kim accompanied the children to see the psychologist, Dr Kim. Ms Hong, who had previously been active and helpful at home including in helping take care of her younger siblings, became irritable, less caring and spoke less at home. Ms Kim said she did not take her eldest daughter to see the doctor, as Dr Kim recommended, because in Korean culture if others discovered Ms Hong had had counselling for mental health issues she might get stigmatised and this might affect her adversely in the future.
Ms Kim said if she and her husband have to return to Korea they will face financial difficulties. She has no special skills or experience and would only be able to undertake unskilled work. Before she met her husband, she was employed by a company doing office work. Then, at the time she had children, she stayed at home and looked after the children and the household, supported by her husband. Ms Kim said there was no possibility of her husband earning as much as he did previously and their joint earnings are unlikely to be sufficient to support the need for them to pay for housing, school fees and other expenses. Ms Kim said she has maintained contact with a friend in Korea who has answered her questions about the cost of living and possible earnings.
Ms Kim said she has one older brother in Korea who lives in a suburb of Seoul where living costs are high and which her family would be unable to afford. Her brother has children aged 12 and 14. Her children stayed with him and his family once for a week in the school holidays before they came to Australia. Ms Kim would not look to her brother for support if she and her husband have to return to Korea for fear of being a burden on his family.
Mrs Lee
Mrs Lee provided a letter dated 13 September 2010 and gave oral evidence at the hearing by conference telephone. She has lived in Australia for about 23 years and currently lives with her daughter, who is at Sydney University, in a six‑bedroom house. Her son has left home. Mrs Lee said she has known Ms Kim for more than seven years and their families are very close friends. Mrs Lee has run a domestic and office cleaning business for the past 12 years and employs three people. She works five‑and‑a‑half days per week. Ms Kim has worked for her on and off over the past five years. Ms Kim is a very honest and reliable worker and generally works a 40‑hour week. Mr Hong works part-time for her and is also working as a painter part-time.
Mrs Lee said she is willing to accommodate and support the three Hong children if their parents have to return to Korea. She can afford this and her house is near the children’s schools. She said the children would be easy to look after because most of the time they look after themselves. Mrs Lee said she has returned to Korea many times since migrating to Australia, largely because her former husband was a Qantas pilot and so had access to travel concessions. She doubted Ms Kim and Mr Hong could afford to provide for the financial needs of their children in Korea as they would in Australia, there being no welfare or student assistance system in Korea.
Ms An
Ms An was invited to give evidence by Mr Seo on the basis of her experience in obtaining Australian citizenship. She does not know Ms Hong or her family. Ms An said she arrived in Australia with her family in 2005 and applied for Australian citizenship in 2009 which was granted in 2010. After their arrival in Australia, her family also lost all the money they had brought with them and if she had had to return to Korea she would have been unable to study there as a result. Ms An said that in Korea, students have to work much harder at school.
Discussion
There is no dispute that Ms Hong is eligible for conferral of citizenship pursuant to the wording of s 21(5) in effect at the time of her application. Equally, it is clear the Minister has a discretion to refuse a grant of citizenship pursuant to s 24(2). The guidance for decision-makers provided by the Instructions indicates that applications by children aged 16 and over and under the age of 18 (at the time of application) should not usually be approved if the applicant does not hold a permanent visa unless the child would otherwise suffer significant hardship or disadvantage. However, where an applicant does not meet the policy requirements, the full circumstances of the case must be considered, including the best interests of the child, to determine whether the application nevertheless warrants approval because of the unusual nature of those circumstances.
Ms Hong is not a permanent resident. The issues for the Tribunal in her case, therefore, are whether, having considered the full circumstances of the applicant’s case and her best interests (as a child), the policy requirement for permanent residency should be waived because the applicant would otherwise suffer significant hardship or disadvantage and the application warrants approval because of the unusual nature of those circumstances.
Ms Hong is in her final year of school and is due to complete her HSC (Higher School Certificate) later this year. The evidence of her school performance indicates that she is a bright student who has achieved excellent results. She hopes to study medicine at university, which is known to be a long and demanding program with very high entry standards and significant costs involved, even in Australia with government‑subsidised tertiary education and access to HECS and Austudy.
The evidence provided to the Tribunal (by Dr Kim, Ms Hong and Ms An) indicates that higher education in Korea is very competitive and fee paying. If Ms Hong has to return to Korea, I accept that, at the very least, her entry to university may be delayed by the need for financial support in paying the required fees and by her Korean language skills not being of the required standard to permit tertiary study. It seems likely that her parents’ ability to earn will be significantly less than was the situation when her father worked as an officer in the maritime industry prior to leaving Korea in 2005. However, I have no evidence as to the current state of the employment market in Korea or of the prospects of Mr Hong obtaining employment. I accept that Mr Hong may not be able to resume a career in the maritime industry without significant further study and passing the necessary tests to obtain the required certification. Ms Kim says she has no special skills and experience which would enable her to obtain other than unskilled employment.
It is not clear whether Ms Hong’s Australian secondary school results will be sufficient to support entry to university in Korea or whether she will have to undertake further secondary study there. Dr Kim indicated that while English proficiency can prove an advantage for Korean speakers, overseas educated students’ qualifications are strictly assessed.
The evidence of Ms Hong’s school results (for example, largely “outstanding” grades in Year 10 German) and the fact of her becoming proficient in English within a relatively short time of arrival in Australia and now studying Advanced English for the HSC, indicates that Ms Hong has a facility for languages. While Ms Hong says she is now more comfortable speaking English, her mother said the family speak Korean at home. While Ms Hong’s Korean language skills may not have developed since she left Korea at the age of 12 and, indeed, those skills, especially the written language skills, may have declined through lack of use, I am satisfied that because of her background in the language and her facility for languages, she is likely to be able to acquire those skills relatively quickly. Thus, if Ms Hong’s current Korean language skills are not of the required standard to permit tertiary study, it is likely that she will be able to acquire the necessary skills without undue difficulty.
The other significant aspect of Ms Hong’s case is the psychological evidence. I am satisfied from Dr Kim’s evidence that Ms Hong is currently suffering from depression. Following an assessment on 1 March 2011, Dr Kim diagnosed Ms Hong as suffering from a major depressive disorder, attributable to the uncertainty over her visa status and the possibility of her being sent back to Korea. On the one hand, allowing Ms Hong to remain in Australia would address this. The fact that Ms Hong is now working part-time indicates that she is becoming more independent. Moreover, Mrs Lee, who appears to know the family well and to have adequate means, has said that she will provide Ms Hong with accommodation and, if necessary, financial support. However, I note, on the other hand, Dr Kim’s evidence that while Ms Hong is academically bright, she is emotionally immature and needs the support of her parents. If her parents return to Korea and Ms Hong is granted Australian citizenship, she will be largely deprived of that support which would not be in her best interests.
More generally, the evidence shows that through living in Australia for over five of her important formative years, Ms Hong has become acculturated into the Australian community and identifies strongly with that community and not with the community of her birth. However, that is in itself not unusual and nor is the fact that a child who has studied for a period of over five years in Australia would face difficulties in adjusting to different circumstances on a return to their country of origin and suffer stress as a result. Many children come to Australia to study and have to cope with not being permitted to remain here once their studies are completed. It will often be open to those students to apply for further student visas in their own right to enable them to also undertake tertiary education in Australia.
Australian citizenship is not to be conferred lightly. The fact that the Hong children’s situation is not of their making but is the result of decisions made by their parents, is not unusual: children are inevitably affected by decisions made by their parents. Equally, the fact that the children may also suffer some detriment as a result – in this instance as a result of the parents bringing them to Australia on tourist visas and then trying to find ways to remain here - is not unusual.
Weighing up the facts as they affect Ms Hong, I am satisfied that, in the short term, her best interests favour her being able to complete her secondary education in Australia. To send her back to Korea before this is likely to cause significant hardship or disadvantage at this stage in her secondary education and adversely affect her psychological state. Although I recognise that I have no specific power in this regard, I would nevertheless recommend that Ms Hong be allowed to complete her HSC year at school in Australia. Presumably, the uncertainty over Ms Hong’s visa status could be resolved in the short term through, for example, her submitting an application for a student visa.
However, in my view, the facts of Ms Hong’s case are not otherwise materially different from cases such as Re Pak and Department of Immigration and Citizenship [2010] AATA 157 and Re Kim and Minister for Immigration and Citizenship [2010] AATA 198 where a refusal of citizenship would not prevent the applicants from completing their secondary education in Australia and being able to apply for student visas to undertake tertiary study here.
In the longer term, if Ms Hong has to return to Korea to undertake her tertiary education, I accept that she will face some difficulties in adjusting to the Korean education system and language, but she is a bright student, with a facility for languages, she will have the support of her family, and once the family have resumed and settled into their life in Korea, it is likely that what currently seem insurmountable difficulties will be addressed. None of this, in my view, is unusual.
I note the information provided by the parties on requests for Ministerial intervention under s 417 of the Act and on the availability of contributory parent visas in the case of parents of Australian citizens. Ultimately, this information has not proved to be of assistance in determining this case.
In conclusion, I am not satisfied that Ms Hong’s circumstances are so unusual as to warrant approval of her application for citizenship outside the usual policy requirements.
Decision
The decision under review is affirmed.
I certify that the 51 preceding paragraphs are a true copy of the reasons for the decision herein of Mr RP Handley, Deputy President.
Signed: ............[sgd]...............................................................
A Veness, Associate
Dates of Hearing: 31 March and 1 April 2011
Date of Decision: 12 April 2011
Applicant representative: Garry Seo & Associates
Respondent representative: A Collins, Clayton Utz
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