Re Pak and Department of Immigration and Citizenship
[2010] AATA 157
•2 March 2010
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2010] AATA 157
ADMINISTRATIVE APPEALS TRIBUNAL )
) No 2009/2145
GENERAL DIVISION ) Re YUN SEON PAK Applicant
And
DEPARTMENT OF IMMIGRATION AND CITIZENSHIP
Respondent
DECISION
Tribunal Justice R J Buchanan (Presidential Member) Date2 March 2010
Place Sydney
Decision The Tribunal affirms the decision of the Department of Immigration and Citizenship made on 2 May 2009 ..............................................
Justice R J Buchanan
(Presidential Member)
CATCHWORDS
MIGRATION – application for Australian citizenship – applicant lived in Australia for lengthy virtually unbroken period and completed primary and secondary education in Australia – primary considerations applicable – whether exceptional or very unusual circumstances exist to depart from policy requirements.
Migration Act 1958 (Cth) ss 21, 24
Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634
REASONS FOR DECISION
2 March 2010 Justice R J Buchanan (Presidential Member) 1. The applicant, Ms Pak, was born in the Republic of Korea on 19 September 1990. She is, accordingly, now 19 years of age. She has not been granted permanent resident status in Australia but she has travelled to Australia on a number of occasions with her parents, has lived here for extended periods of time and attended school here. The day before her 18th birthday she applied for Australian citizenship pursuant to s 21(5) of the Migration Act 1958 (Cth) (“the Act”).
2. Section 21 of the Act states the criteria for a person to be eligible for citizenship. Section 21(5) renders a person eligible to become an Australian citizen if aged under 18 at the time an application for citizenship is made. However, there is no obligation that such an application be approved (s 24(2)). Section 24 of the Act requires that an application be approved or refused. It does not state what factors should be taken into account in the exercise of such a discretion but guidelines have been published as a matter of government policy (“the Australian Citizenship Instructions”). The published policy states guidelines to be employed in the case of persons who are eligible under s 21(5) of the Act. It was accepted that I should follow the guidelines unless there was good reason not to do so (Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634 per Brennan J). No such reason was suggested.
3. The primary considerations stated by the guidelines are “the best interests of the child” and a set of “policy requirements”. Consideration of the best interests of the child is only required in the case of persons who are less than 18 years of age at the time of decision on the application. That consideration does not apply in Ms Pak’s case. Ms Pak does not meet the policy requirements. In particular she is not, as required, a permanent resident of Australia. It follows that neither of the primary considerations to be taken into account assist her in her application.
4. The guidelines make it clear that policy requirements represent the normally determinant factor. The guidelines provide:
“In the case of an applicant who does not meet the policy requirements 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 exceptional nature of those circumstances. The circumstances would need to be very unusual to warrant approval of an application outside policy.”
5. It follows that the circumstances in support of the present application must be either “exceptional” or “very unusual” to warrant approval.
6. Ms Pak has appealed to the connections which she has made with Australia and an Australian way of life. She has undertaken her schooling in this country. She lacks confidence in her written and spoken Korean and is apprehensive that she will not be able to keep up with Korean education standards. She does not see herself living in the future in Korea.
7. Ms Pak came to Australia with her parents when one year old. The family arrived on tourist visas. After 16 months the family left Australia and returned approximately three years later, again on tourist visas. Ms Pak was five years old. The family left Australia again after 14 months but only for four days. When they returned, in April 1997, Ms Pak was granted a student visa. She was six years old and began to attend primary school. Four years later the family again left Australia for a short period, returning to Korea for about one month. They returned on visitor visas in June 2001. One month later Ms Pak was granted a further student visa and completed her primary schooling. On her 13th birthday she was granted a further student visa for a short time. She commenced her secondary schooling and was, in March 2004 then granted a student visa for six years. That visa will expire on 15 March 2010. It has enabled her to complete her secondary schooling in Australia. Ms Pak, accordingly, has remained in Australia virtually without interruption for the last 14 years and has completed her primary and secondary education in this country. During that period her younger brother was born in Australia and is an Australian citizen.
8. Ms Pak is now enrolled in a Diploma of Arts course at Macquarie University and proposes to transfer later to a Bachelor of Education course at that university. The university is aware of her current visa status. It has accepted her enrolment, apparently on the basis that it is satisfied she will be granted further student visa if she seeks one. No application for a further visa has yet been made, no doubt because a decision in the present proceedings would, if made in Ms Pak’s favour, render such an application unnecessary.
9. Apart from the evidence which Ms Pak gave, by written statement and orally, evidence was also given by Dr Seong-Chul Shin, Convenor and Senior Lecturer, Korean Studies Program, School of Languages and Linguistics, Faculty of Arts and Social Sciences, University of New South Wales, Sydney. Dr Shin’s evidence was also given by written statement and orally. Dr Shin assessed Ms Pak’s Korean language skills. He said they were lower than Korean kindergarten level. Although that seems surprising, in light of the fact that Ms Pak has apparently lived continuously with her parents, and none have any guarantee of being permitted to remain in Australia, there is no reason to doubt Dr Shin’s assessment. Dr Shin gave evidence about the difficulties Ms Pak would have in the Korean education system at either secondary or university level. He did so initially by adopting views expressed by Dr Ken Wells in an undated paper which Dr Shin attached to his written statement. Dr Shin was invited, in cross-examination to also express his own views. The views expressed by Dr Wells and Dr Shin have little relevance to Ms Pak who has completed her secondary education and plans to pursue her university studies in this country whether granted citizenship at the present time or not.
10. The principal submission advanced on Ms Pak’s behalf to the effect that her circumstances were exceptional, or very unusual, relied on the length of her virtually unbroken residence in Australia, the fact that she had completed all her schooling in this country and that she had formed close personal ties here. There is no reason to doubt Ms Pak’s sincerity concerning her desire to become an Australian citizen. However, the matters to which reference has been made do not, in my view, amount to either exceptional or very unusual circumstances.
11. A decision on the present application does not foreclose either the prospects of a successful application for a student visa to pursue higher studies in Australia or, if the requirements for it are met, an application to become a permanent resident in Australia, which might lead in due course to the grant of Australian citizenship. The only question for present attention is whether Ms Pak has made out a case that, notwithstanding that neither of the primary considerations for applications under s 21(5) of the Act applies to her, nevertheless her application should be approved as a matter of discretion. A case to that effect has not been established. Her circumstances are neither exceptional nor very unusual. It follows that the decision to refuse her application was correctly made and will be affirmed.
I certify that the 11 preceding paragraphs are a true copy of the reasons for the decision herein of Justice Buchanan, Presidential Member
Signed: .....................................................................................
AssociateDate/s of Hearing 23 February 2010
Date of Decision 2 March 2010
Solicitor for the Applicant Christopher Levingston & Associates
Solicitor for the Respondent DLA Phillips Fox
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