Re Raisani and Minister for Immigration and Citizenship
[2008] AATA 640
•22 July 2008
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2008] AATA 640
ADMINISTRATIVE APPEALS TRIBUNAL )
) No 2007/2070 &
No 2007/2093
GENERAL ADMINISTRATIVE DIVISION ) Re NATASHA RAISANI First Applicant
Re TYAS TANIA ARYANTIE Second Applicant
And
MINISTER FOR IMMIGRATION AND CITIZENSHIP
Respondent
DECISION
Tribunal Ms Robin Hunt, Senior Member Date22 July 2008
PlaceSydney
Decision The reviewable decision is set aside and substituted is the decision to grant the applicants Australian Citizenship pursuant to subsection 13(9) of the Australian Citizenship Act 1948 (Cth). ....................[Sgd]...................
Ms Robin Hunt
Senior Member
CATCHWORDS
IMMIGRATION & CITIZENSHIP – applications for Australian citizenship – applicants born in Indonesia – applicants satisfy requirements of Australian Citizenship Act 1948 – policy guidelines advise permanent residence usual expectation – permanent residence not a condition precedent to exercise of discretion under the Act – discretion exercised in favour of applicants.
Australian Citizenship Act 1948 (Cth) ss 10(2), 13(1), 13(4), 13(9), 52A(2)
Australian Citizenship (Transitionals and Consequentials) Act 2007 (Cth) s 10
Australian Citizenship Act 2007 (Cth) s 12(1)(b)
Migration Act 1958 (Cth) ss 134(5), 417
Australian Citizenship Instructions
Frunz and Minister for Immigration and Multicultural Affairs [2000] AATA 887
Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634
Re Lee and Department of Immigration and Ethnic Affairs (1988) 10 AAR 270
REASONS FOR DECISION
22 July 2008 Ms Robin Hunt, Senior Member summary
1. Miss Tyas Tania Aryantie, aged 18, and Miss Natasha Raisani, aged 17, the applicant sisters, were born in Jakarta, Indonesia. They arrived in Australia with their father on tourist visas on 10 February 1999, aged 9 and 7 respectively. They have remained in Australia since that date and completed various stages of schooling. Miss Aryantie is in her first year of tertiary studies at a TAFE college and Miss Raisani is in year 11 of high school. Neither sister nor their parents are Australian permanent residents or citizens. On 4 September 2006, both Miss Aryantie and Miss Raisani applied for a grant of Australian citizenship under subsection 13(9)(a) of the Australian Citizenship Act 1948 (‘the old Citizenship Act’). A delegate of the Minister for Immigration and Citizenship refused their applications on 16 May 2007. The applicants sought review of the decisions in this tribunal on 23 May 2007, and it is these reviewable decisions that are before me.
2. After reviewing the evidence and submissions of the parties, I have decided to set aside the delegate’s decisions to not grant the applicant sisters Australian citizenship. My reasons appear below.
decision under review
3. The decision under review is that of a delegate of the Minister for Immigration and Citizenship made on 16 May 2007 under subsection 13(9)(a) of the old Citizenship Act. The delegate refused the applications for Australian citizenship on the basis that neither Miss Aryantie nor Miss Raisani meet the policy requirements of hardship or disadvantage or have a ground for a waiver of the Minister’s policy.
issue
4. I have to consider whether the discretion under subsection 13(9) of the old Citizenship Act should be exercised in the applicants’ favour and, in so doing, grant Miss Aryantie and Miss Raisani Australian citizenship.
legislation and policy
5. The applications for citizenship were made under subsection 13(9)(a) of the old Citizenship Act. On 1 July 2007, the old Citizenship Act was repealed and the Australian Citizenship Act 2007 (‘the new Citizenship Act’) was enacted. The new Citizenship Act was accompanied by the Australian Citizenship (Transitionals and Consequentials) Act 2007 (‘the Transitional Act’). Section 10 of the Transitional Act operates to preserve the applicants’ appeal to the tribunal as if the repeal of the old Citizenship Act had not occurred.
6. At the hearing, Mr Kessels for the applicants, confirmed that the application in relation to Miss Raisani is an application under subsection 13(9)(a) because she is still a person who is under 18. However, the application for Miss Aryantie is now an application under subsection 13(9)(b) because although she has since turned 18, she was under 18 when she lodged it and thus is still able to apply under subsection 13(9).
7. Subsection 13(9) of the old Citizenship Act, which is the Act that applied at the date of the applications, provides that:
Subject to subsection (11), the Minister may, in the Minister’s discretion, upon application in accordance with the approved form, grant a certificate of Australian citizenship to a person:
(a)who has not attained the age of 18 years;
(b)who:
(i)has attained the age of 18 years; and
(ii)has made the application before attaining that age;
(c)…………..
8. The Australian Citizenship Instructions (‘ACI’) provide guidance on the exercise of the Minister’s discretion under the old Citizenship Act. Relevantly, the guidelines set out the policy for the exercise of the Minister’s discretion pursuant to subsection 13(9). The main guidelines I have considered in respect to the present applications are:
4.4.3 As a matter of policy, applications under ss 13(9)(a) and (b) will usually be approved if:
·the applicant is aged over 16 years or over and is the natural child of a person who has been granted a certificate of Australian citizenship on the basis of being the spouse of an Australian citizenship; or
·the applicant is aged 16 years or over and meets the criteria in 4.2;
·………….
4.4.4 In considering an application under s 13(9), applications are not usually approved unless all of the following are satisfied:
·the child is a “permanent resident” (see 1.4) or meets the requirements for migration to, or permanent residence in, Australia; and
·the child has a “responsible parent” (see 1.6) who is an Australian citizen and who consents to the application; and
·the child is living with that responsible parent if the child is under 16 years of age ….
4.4.5 Decision makers are reminded that they must consider the full circumstances of the case. For example, it may be appropriate to approve a case outside policy if the child (other than an adopted child) has a responsible parent who is an Australian citizen and there are exceptional circumstances which would make it unreasonable for the applicant to apply for a permanent visa.
…….
4.4.18 As a matter of policy, an applicant aged 16 or over will usually be approved if the following requirements are satisfied:
·the consent of a responsible parent has been given, unless:
-all responsible parents are deceased or their whereabouts cannot be established; and
-the applicant would suffer significant hardship or detriment if not granted citizenship.
·the applicant meets all the criteria in s 13(1), other than the requirement to be 18 years or over (see 4.4).
-the applicant need not meet the usual residence requirements if this would cause significant hardship or disadvantage. If the hardship or detriment is not of the type described in 4.3.33, the case is to be referred to a delegate of at least APS 6 level.
9. The policy criteria at 4.2, referred to at 4.4.3 above, relate to the grant of Australian citizenship under subsection 13(1) of the Act. Subsection 13(1) provides that:
(a) the person is a permanent resident;
(b) the person has attained the age of 18 years;
(c) the person understands the nature of the application;
(d)the person has been present in Australia as a permanent resident for a period of, or for periods amounting in the aggregate to, not less than one year during the period of 2 years immediately preceding the date of the furnishing of the application;
(e)the person has been present in Australia as a permanent resident for a period of, or for periods amounting in the aggregate to, not less than 2 years during the period of 5 years immediately preceding the date of the furnishing of the application;
(f)the person is of good character;
(g)the person possesses a basic knowledge of the English language;
(h)the person has an adequate knowledge of the responsibilities and privileges of Australian citizenship; and
(j)if granted a certificate of Australian citizenship, the person is likely to reside, or to continue to reside, in Australia, or to maintain a close and continuing association with Australia.
natasha raisani
10. The first applicant, Natasha Raisani, was born in Jakarta, Indonesia. She arrived in Australia on 10 February 1999 at the age of 7, with her father and older sister (the second applicant). She has lived in Australia since that time and is now 17 years old. She currently resides in Kingsford with her parents, sister and uncle. Another uncle, aunt, and three cousins also live in Australia. She has one grandparent in Indonesia and some other relatives but gave oral evidence that she last spoke to them about 8 years ago when she left Indonesia for Australia.
11. Miss Raisani gave oral evidence that she remembered Indonesia but not clearly. She remembered starting school and thought she was about to commence her second year when she left for Australia. She had a few English lessons before coming to Australia and now was fluent in written and spoken English. By contrast, she was able to converse with her parents in Indonesian but could read only a few words.
12. Now in year 11 at high school, Miss Raisani is studying maths and English and elective subjects including design and technology, modern history, dance, dance ensemble and fashion design and production. Miss Raisani said her main interest was dance, various types of which she had been practising since a little girl, and her dream was to become a choreographer or dance teacher.
13. Miss Raisani stated that she spent a lot of time after school with her dance teacher and had a circle of friends who shared her interests in music and hobbies. She danced with her teacher in the studio and also was taking dance exams and private lessons training to become a dance teacher. Miss Raisani said she was a Muslim but attended the mosque only on special occasions like Ramadan.
14. When asked if she had thought about her living arrangements if her parents had to leave Australia, Miss Raisani said she would continue to live with her uncle, who is an Australia citizen. She believed he would provide for her and that her Australian cousins, who were aged 35, 37 and 40, would also assist her if necessary.
tyas tania aryantie
15. The second applicant, Tyas Tania Aryantie, was also born in Jakarta, Indonesia. She arrived in Australia on 10 February 1999, along with her father and younger sister (the first applicant), at the age of 10. She has lived in Australia since that time and is now 18 years old. She currently resides in Kingsford with her parents, sister and uncle.
16. Since arriving in Australia, Miss Aryantie attended school, first at Rainbow Street Public School in Randwick, where she completed years 4 to 6, then onto Randwick Girls High School where she completed her Higher School Certificate in English, mathematics, business studies, food technology and information technology in 2007. In her written statement, Miss Aryantie stated that during high school she was a peer support leader, she organised the year 10 and year 12 formals, and was involved in peer tutoring, netball, basketball and volleyball.
17. At present, Miss Aryantie is studying for a Diploma of Event Management at Ultimo TAFE, and is working towards gaining admission into university. In addition to her studies, Miss Aryantie works part time at Best and Less. She also works part-time as a club promoter to gain experience in the event industry.
18. The second applicant said she did not remember much about her life in Indonesia but recounted some experiences at school and another frightening event on her way home from school. By contrast, she loved Australia and had made many friends from various backgrounds. Miss Aryantie gave further evidence that her Indonesian language skills were poor and that she would struggle to understand, read and write the language if she were forced to return to Indonesia.
19. When asked if she had thought about her living arrangements if her parents had to leave Australia, Miss Aryantie also said she would continue to live with her uncle. She pointed out that she is already earning some income.
professor timothy charles lindsey
20. Professor Timothy Charles Lindsey gave expert evidence about the Indonesian language and aspects of travel in that country. He was called by the respondent. The Professor told the tribunal he was familiar with tourist visas, business visas and APEC visas. He added that long stay visas were available for foreign visitors as well as social and education visas, but these were difficult to obtain and took a long time. He was not aware of family visas but had not experienced problems visiting family in Indonesia. Professor Lindsey, as an Australian citizen, said he has travelled back and forth to Indonesia once a month for the past 10 years (either for business or to visit his wife who lives in Jakarta) and has only ever once been asked what he was doing in Indonesia and when he said “visiting my wife” was let through without any problems.
21. The Professor said the difference between colloquial Indonesian and formal Indonesian was quite significant and could often be mistaken as two different languages. Language of instruction at school and at university was Indonesian unless it was an English instruction course. Therefore, it would likely be a prerequisite of study to have fluency in Indonesian. Normal requirements for university entry would be completion of secondary school and the Professor gave further evidence there was intense competition to enter university.
22. The Professor stated there was no question that the quality of tertiary education was higher in Australia and it was seen as a great achievement and benefit to have an Australian education. Australia was the single largest destination for Indonesian students to study, even more so than the United States, and reflects the Indonesian view of the high quality of education in Australia. He said most Indonesians regard their education system as poor. There is an enormous variation between the standards of the universities in Indonesia, with maybe only some approaching international standards.
23. He also gave evidence that fluency in Indonesian was necessary for employment and education purposes. A person who did not have that fluency would be very significantly challenged as Indonesian was the principal language. A person who was only fluent in English would be in the position of most expatriates in Indonesia, and always competing with bilinguals who have the advantage of 2 languages. It was very difficult for anyone without knowledge of formal Bahasa Indonesian to undertake higher education at any level.
24. When asked about possible employment in some occupations for persons who had poor Indonesian language skills, the Professor made some general observations. Having attended a lot of events in Indonesia, he observed there was a big events management industry in Indonesia and a highly competitive one at that, especially in Jakarta. Also, from observation, he described a vibrant dance scene and a highly regarded non-traditional dance sector. He thought a person could function in the arts and in the fashion design industry with colloquial Indonesian. In tourist hotels, he noted a prerequisite was the English Language.
25. The Professor also gave evidence that most business transactions were conducted in colloquial Indonesian. A person could operate to a certain extent using colloquial Indonesian but would find it very limiting. It would be an embarrassment not to be able to communicate in formal Indonesian. To be equal to a native Indonesian speaker, it could not be done at any time less than 4 years, and even then it would be a feat and an extraordinary outcome. He said that Indonesian is relatively simple to learn because it has the same script as English and people acquire basic Indonesian language skills faster than many other languages, but to obtain a degree of formal language fluency, would take no less than 4 years.
dr alex apler
26. Dr Alex Apler, psychiatrist, saw both the applicants and furnished reports to the respondent. In relation to both applicants, Dr Apler concluded that they were normal girls with no mental illness. In his opinion, they were unlikely to develop mental illness if they went back to Indonesia. Likewise if they were to remain in Australia and their parents were to be back in Indonesia, they were unlikely to develop any mental illness.
consideration
27. The applicants and the respondent accept the statutory discretion in subsection 13(9) is a broad one, and neither contends that subsection 13(9) requires the applicants to be permanent residents. However, the ACI includes this as a usual expectation. Paragraphs 4.4.3, 4.4.4 and 4.4.18 of the guidelines explain that a decision maker would not “usually” approve an application where the person is not a permanent resident.
28. Miss Aryantie and Miss Raisani are not eligible for the grant of permanent visas under the Migration Act 1958 (Cth). Their parents have previously applied to the Minister for Immigration for a grant of residence under section 417 of the Migration Act, but that application was denied. Their parents were still in Australia at the time of the hearing but likely to be required to depart. The applicants were holding bridging visas allowing them to remain for a period.
29. The respondent argued that it is not the intention of subsection 13(9)(a) to grant citizenship to a child who has been unlawfully in Australia so that he or she may then sponsor their parents. At the same time, the respondent’s supplementary written contentions expressed a view that it was by no means certain that the parents would be granted visas if the applicants were granted citizenship.
30. While the applicants did not deny that they hoped their parents would be able to return to Australia with their help if they were granted citizenship, I did not form the view that this was the reason the applicants were seeking citizenship. The applicants convinced me, when giving their oral evidence, that it was their ardent wish that they be granted Australian citizenship so that they could remain in Australia and have a normal life here.
31. The possibility that exercise of discretion in favour of a child may have the consequence of permitting legal entry of a parent who has been refused a visa is a matter not addressed in section 13 or in policy guidelines about subsection 13(9)(a) and (b). Therefore, I have not given this much weight in considering the applications under subsection 13(9) and policy guidelines as to the implementation of discretion available under that provision.
32. The applicants presented as truthful and I accept their evidence that they genuinely wish to stay in Australia as citizens. I also find that they have thought through the situation in which they may find themselves living in Australia while their parents have to remain in Indonesia. This possibility is not such a barrier to the applicants that they do not desire citizenship. They wish to remain in Australia with or without their parents. They gave clear evidence of their aspirations, which depend on their being able to stay in Australia. They also spoke about their involvement in school activities and other local activities and about their fulfilling social life and interests and friendships here. I formed an impression that the applicants are fully integrated into Australian society and the environment in which they have spent the last nine years or so. These have been formative years.
33. Miss Aryantie and Miss Raisani are delightful young women and have entirely understandable and reasonable hopes to continue their education at tertiary level in Australia and to enter careers in Australia. They already have accomplishments in their chosen fields. For all intents and purposes they present as Australian but they do not have the security and benefit of permanent residency entitlement or citizenship.
34. The respondent further argued that the grant of Australian citizenship to the applicants would have the adverse consequence of leading to the loss of their Indonesian citizenship. Both applicants gave clear oral evidence that they were aware of this but had no hesitation on this account when deciding to apply for Australian citizenship. They both told me that they had extensive networks of friends and contacts in Australia and all their plans for the future turned on their being able to remain permanently in Australia.
35. At the time of the tribunal hearing, the applicants were living in the same house with their parents and an uncle, who is a chef and an Australian citizen. They intended to continue living under the same roof if they were allowed to remain in Australia. I can find no requirement or policy suggestion that an applicant under subsection 13(9) should be living with a “responsible parent” except where the child is under 16 years of age. Paragraph 4.4.4 of the guidelines say citizenship applications for those under 16 are not usually approved unless the child is living with the parent. Even so, the guideline goes on to say that, if the child is in the care of another person, such as an uncle, the case should be referred to a senior delegate. It follows in my view that the arrangement with the uncle is no ground to refuse the grant of citizenship.
36. Both applicants told me that they had thought about how they would deal with being separated from their parents. Both applicants said that they intended to visit their parents frequently if the parents were forced to return to Indonesia. They pointed out they would not be prevented from leaving Australia at any time for visits to Indonesia once they were citizens. Professor Lindsey, whose evidence is summarised above, told me that he travelled frequently to Indonesia to visit his wife and had experienced no difficulties. I can find no support for the suggestion that the applicants would encounter problems with Indonesian authorities and, on balance, find this is no reason to refuse the grant of Australian citizenship.
37. I also note that the applicants come within an exception to the rule under subsection 52A(2) of the old Citizenship Act, that persons who are not permanent residents are not entitled to review of a decision under section 13. Children who seek citizenship under subsection 13(9)(a) and (b), however, may seek review. This does not mean that they have any greater expectation of attaining the goal of citizenship but must still meet requirements. Nevertheless, it reinforces the perception that their applications may have some chance of success.
38. In the case of Miss Raisani, who was not yet aged 18 at the time of the tribunal’s review, I bore in mind what was in her best interests although the guidelines do not specify this. Subsection 13(9)(a) applies as she had not attained 18 years of age at the time of application and the tribunal hearing. Her best interests in my opinion would be served by her being granted Australian citizenship. She will experience difficulties if she is forced to return to Indonesia because of her language deficiencies and lack of schooling in that country. In addition, she has no wish to live there and wants to remain in Australia. These considerations are pertinent when forming a view about the degree of hardship she would suffer if refused citizenship.
39. Miss Raisani at 17 years of age is a mature girl who is an accomplished dancer and who is clear in her own mind about what she would like to achieve. Her main goal is to succeed in a dance career and she is already on the way to making a career in this field. One of her high school subjects involves dance studies and she practises dance. Her evidence included an account of her close friendship with her dancing teacher, with whom she spends a lot of time after school as well as in the classroom. Miss Raisani sees her own best interests as best served in Australia so that she can further her career aspirations in dance and choreography or in design. If she fails to achieve success in the dance field, Miss Raisani is considering the option of making a career in design and has some background studies in this as well.
40. Miss Aryantie also has a career path in mind and hopes to go into events management. She already has undertaken tertiary studies for a diploma to this end and has considered the next step in anticipation of successful completion of this year. She would next like to study for an advanced diploma or enter university.
41. In the case of Miss Aryantie, she had turned 18 at the time of the tribunal’s deliberations. It seems to me that I should apply subsection 13(9)(b) in such a manner that my decision takes into account the circumstances at the time the applicant had turned 18 and not at the date of her application, when she was still a child. Otherwise, the provision might be unduly difficult to interpret and apply. However, there has been little change in Miss Aryantie’s case. The only major change in circumstances that distinguishes the older sister from the younger is that she has since commenced tertiary studies. In addition, Miss Aryantie would no longer need to satisfy any criteria such as those for unaccompanied minors and she might instead be a family member who takes some responsibility for her younger sister in place of a parent. I mention this in passing as it was not raised before me.
42. Basically, the policy guidelines are the same for both applicants. Some of the guidelines treat a child under the age of 16 differently from older applicants, for example, the suggestion in 4.4.4 that a child under the age of 16 should be living with a responsible parent. Nothing turns on this in the case of either applicant as they are both over the age of 16.
43. I note that subsection 13(9) requirements have not often been considered. In the case of Frunz and Minister for Immigration and Multicultural Affairs [2000] AATA 887, the tribunal declined to exercise discretion under subsection 13(9) in favour of the applicant. However, the tribunal was considering the situation of an infant aged 2. In addition, the policy guidelines at that time contained some different requirements. Former paragraph 4.7.5 provided that the decision maker consider whether there were exceptional circumstances which would make it unreasonable to expect the applicant to apply for a permanent visa. In that case also, the tribunal found no real hardship caused by refusing to grant citizenship until the infant met the residency requirements, at which time it was likely that citizenship would be granted. By comparison, the present applicants are no more likely to attain permanent residency at a later date or improve their prospects of attaining citizenship unless they depart Australia and attempt some different approach to allow them to re-enter in the future.
44. Subsection 13(9) paragraphs (a) and (b) read without the gloss of the guidelines gives an unfettered discretion. There are various requirements in the following subsections but none of these apply to the applicants. Turning to the policy guidelines, the main riders to unfettered discretion in respect to children applying under paragraphs (a) and (b) are set out in 4.4.3 to 4.4.5.
45. Paragraph 4.4.3 explains that applications will “usually” be approved if the applicant is aged over 16 and the natural child of a person who is an Australian citizen through being the spouse of an Australian citizen, and who meets the criteria in 4.2. I agree with Mr Kessels’ submission that this paragraph does nothing more than establish a beneficial presumption in cases that satisfy these criteria. It does not mean that the applicants, by failing to meet all these criteria, should not be approved.
46. Paragraph 4.2 discusses criteria for a grant under subsection 13(1). At 4.2.2 it says the applicant must be a permanent resident, but the source of this requirement is subsection 13(1)(a) and the guideline adds nothing by way of explanation and does not purport to refer to any other subsection. In my view, an attempt to rely on the guideline as a fetter on subsection 13(9) goes beyond power and should not affect my decision. I have discussed this in more detail later in these reasons.
47. Paragraph 4.4.4 sets out that an application under subsection 13(9)(a) or (b) is “usually not approved” unless the child is a permanent resident or meets the requirements for permanent residence and has a responsible parent who is an Australian citizen. This illustrates that an application like the ones before me would not usually be approved as the applicants meet neither of these criteria. However, this again does not mean the applications before me cannot be approved. Firstly, these criteria are not included in subsection 13(9)(a) or (b), under which provision these applications were made. Permanent residence is one of the criteria mentioned in subsection 13(1) and the applicants have not applied for citizenship under that provision. The consent of a responsible parent in the context of the present applications is excessive where the applicant has turned 18 and seems to me unnecessary in the case of the younger sister here as well as her adult sister wishes to remain with her. For these reasons, I find policy set out in 4.4.4 is not a bar to the success of these applications.
48. Another guideline for subsection 13(9)(a) and (b) appears at 4.4.18. Paragraph 4.4.18 states that an applicant need not meet the usual residence requirements in circumstances of significant hardship or disadvantage. Examples of significant hardship or disadvantage are set out in 4.3.33 (to which 4.4.18 refers) as situations where an applicant need not meet the usual residence requirements. The examples at 4.3.33 include refusal of employment solely due to lack of citizenship, exclusion from travelling internationally and exclusion from representing Australia internationally. These examples do not apply in the present cases. However, this is not the end of the guidelines, which leave open consideration of cases by a senior delegate where hardship or detriment is of a different type from the examples given.
Permanent residence
49. The main difficulty in these applications is lack of entitlement in the applicants to permanent residency. There is no evidence before me that the applicants are capable of meeting the usual permanent residence requirements. They have remained in Australia on temporary visas and have been unable to obtain permanent residency visas. They also do not have a parent who is an Australian citizen. It was put to me that the policy provisions which introduce these criteria as a consideration for exercise of the unfettered discretion in subsection 13(9) were unlawful because no element of compulsion is present in the provision. I do not accept that policy is unlawful unless I were to apply 4.2 indiscriminately to the applicants. Other policy guidelines do not make the 4.2 criteria compulsory but leave the possibility of competing considerations for exercise of discretion. These competing considerations are set out in 4.4.18.
50. I accept that the discretionary powers found in subsections 13(1) and 13(9) are separate and distinct as Gray J, sitting as a presidential member of the tribunal, observed in Re Lee and Department of Immigration and Ethnic Affairs (1988) 10 AAR 270. This is not to say that some of the requirements pursuant to subsection 13(1) can also be policy considerations in exercising the separate discretion afforded in subsection 13(9).
51. I agree with Mr Kessels’ submission that the omission of a requirement for permanent residence from subsection 13(9) was deliberate and that this omission leaves open possible grant of citizenship where a child does not meet permanent residence requirements. Nevertheless, the guidelines explain in what circumstances the Minister expects lack of permanent residency would usually affect the grant of citizenship. This does not mean the guidelines are unlawful or go beyond power by suggesting matters that may affect exercise of discretion.
52. Paragraph 4.4.3 offers an opportunity for a grant where an applicant is aged over 16 and meets the criteria in 4.2. Paragraph 4.2 sets out guidelines for subsection 13(1) but becomes relevant to the applicants because of the connection made in the guidelines via 4.4.3. Mr Kessels objected to this as 4.2.1(a) says the applicant must be a permanent resident and this is not a requirement under subsection 13(9). I accept his argument that this requirement should not apply in a mandatory fashion to the applicants because it is not a requirement of subsection 13(9).
53. Mr Kessels also pointed to the distinction between a requirement under subsection 13(1) that a person be a permanent resident and the requirement that a person be “ordinarily resident” in Australia for a period in order to become a citizen under subsection 10(2) of the old Citizenship Act and subsection 12(1)(b) of the new Citizenship Act. Rather than this distinction supporting the applicants’ claims or indicating that applicants for the grant of citizenship need not be permanent residents for the purposes of subsection 13(9), I think the use of a different test is deliberate and one does not affect the other. However, the differences in subsections 13(1) and (9) and the guidelines for subsection 13(9)(a) and (b) indicate that the parliament deliberately made the distinction.
54. Where a legislative provision creates a general discretion, it is well established that the tribunal should follow publicly declared Ministerial policy or Departmental guidelines unless there is some good reason not to: per Brennan J in Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634. Policy concerning permanent residence is blurry but I think it is clear that persons having no expectation of a permanent visa should not be granted citizenship unless they show significant hardship or disadvantage.
55. The guidelines are not so unreasonable as to warrant my not observing those set out from paragraph 4.4 onwards. Some flexibility is afforded under the guidelines and this is consistent with discretion. The only inconsistency with the discretion is, as I have said above, policy that says an applicant must be a permanent resident.
56. I am mindful that 4.4.5 directs me to have regard to the full circumstances of the case and concedes that there may be cases where it is appropriate to grant citizenship outside policy. I consider it would be unreasonable to require the applicants to apply for permanent residency in this instance, knowing they would fail, but the further question is whether requiring them to meet this requirement would bring about significant hardship or disadvantage as explained in 4.4.18 or exceptional circumstances such as those given with an example in 4.4.5.
57. I note that 4.4.5 does not specify consideration of exceptional circumstances but only that the decision maker must consider the full circumstances of the case. Nevertheless, in the exercise of discretion in the applicants’ cases, I have tried to find if there are circumstances which take their situation out of the ordinary. Because the guidelines at 4.4.5 describe an exceptional case I have still taken this as a relevant test.
58. The Macquarie dictionary definition of “exceptional” is “forming an exception or unusual instance”. Similarly, the Oxford English dictionary defines exceptional as “of the nature of or forming an exception; out of the ordinary course, unusual, special”. On balance, the circumstances of the applicants in not being able to qualify for permanent residency are not exceptional. When compared to any entrant to Australia who has resided here over a long period without being able to gain a permanent residence visa, the situation of the applicants is not unusual. The situation is very unfortunate because the applicants, having lived here as minors, are not at fault. However, the difficulty arises simply because no entitlement has been established despite their parents’ efforts. While their long period of residence is exceptional this is not why it would be unreasonable for them to apply for a permanent visa. It would be unreasonable only because they are not eligible. It follows that the applicants are not assisted by 4.4.5.
59. Paragraph 4.4.18 says an applicant need not meet the “usual residency requirements” in some circumstances. I think the usual requirements would include permanent residency but there may be others as well such as those in subsection 13(4). Paragraph 4.3.34 deals with discretion available under subsection 13(4)(b)(iv) where application is made before the “2 in 5 years” residence requirement is satisfied. Policy under 4.3.33 again refers to situations of hardship or disadvantage but none of the examples given are similar to the applicants’ situation and 4.4.18 differentiates the relevant hardship as well. The usual residence requirements may mean some other residence requirements or possibly the same requirements as in 4.4.4 which is that the applicant be a permanent resident or meet the requirements for this status. I have already considered 4.4.4 which does not assist one way or another as it does not suggest options to overcome lack of entitlement to permanent residence but simply remarks that an application in this circumstance is not usually approved.
60. Paragraph 4.4.18 sets out examples of instances where an applicant over 16 will usually succeed. Failing this, an applicant need not meet the “usual residence requirements” if this would cause “significant hardship or disadvantage”. This criterion is altered somewhat in the next sentence which says the “hardship or detriment” need not be the type described in 4.3.33. This broad non-specific language as well as uncertainty about what is meant by “the usual residence requirements” poses some difficulty in interpretation and application. Whatever is meant by the usual residence requirements, the applicants can point only to a long period of residence, approximately 9 years, and an intention to reside permanently in Australia, if permitted. For some purposes, outside migration and citizenship rules, intention is a strong indicator of residence. The legislation with which I am dealing has introduced tests and, on balance, I do not consider intention and length of residence is sufficient for the applicants to warrant exercise of discretion in their favour.
61. Assuming the applicants do not meet the usual residence requirements despite their intention to remain in Australia, I also have considered the hardship, disadvantage or detriment they may suffer if not granted citizenship. The applicants have given evidence about the difficulties they would meet in Indonesia and the disadvantages they would suffer compared with their prospects for furthering their education and following preferred careers if allowed to stay in Australia. I also note that Dr Apler saw the applicants in December 2007 and gave his opinion in a report dated 8 January 2008 that they would cope with the outcome of their application whether or not they were able to stay in Australia.
62. Dr Apler believes the applicants were unlikely to develop mental illness as a result of stress associated with migration. Nor would they in his opinion develop such illness if they stayed in Australia without their parents. After hearing from Professor Lindsey, I formed the view that life will be much more difficult for the applicants in Indonesia than in Australia. Although Professor Lindsey was a witness for the respondent, his evidence led me to conclude that the applicants would have little prospect of continuing their education at a tertiary level in Indonesia as Miss Aryantie is already doing in Australia and as Miss Raisani intends to do. While they may well find employment related to events management and in dance or design, Professor Lindsey’s evidence leads to the conclusion that they would be severely disadvantaged in any attempt to set up their own business or to find employment at a senior level. The main reason for this is that they do not have any capability in formal Indonesian language. His evidence was that it would be embarrassing to try to conduct business without formal Indonesian and that a person without this advantage would be unlikely to succeed. He went on to say it would be very difficult to go through school or get a job in competition with bilingual persons. He added:
It would be a great restriction to be unable to speak, what would be declared, as your native language.
63. The terms in 4.4.18 which are the basis for discretion are “significant hardship”, “disadvantage” and “detriment”. These terms, on first impression, are not suggestive of a degree of hardship used in determining, for instance, whether a child of a person who is refused a business skills visa is able to stay in Australia on the grounds of hardship. The test under subsection 134(5) of the Migration Act for exercise of discretion in favour of a member of the family of a former primary visa holder whose visa is cancelled, is “extreme hardship”.
64. The Macquarie dictionary defines “significant” as “important” and “of consequence”. The same dictionary defines “hardship” as “a condition that bears hard upon one”, a rather circular approach. Other attempts at the definition deal with “severe toil, trial, oppression and need”. Certainly, the applicants will face severe toil in entering into tertiary education in Indonesia according to Professor Lindsey’s evidence. They will have to acquire formal Indonesian capabilities before they can go any further and this will take considerable time and effort. The primary definition of the word “disadvantage” is again not very helpful, that is, “absence or deprivation of advantage”, but the secondary definition gives a clearer picture, being “any unfavourable circumstance or condition”. The word is further defined as meaning “injury to interest, reputation, credit, profit etc, loss”. Lastly, the word “detriment” is defined as “loss, damage or injury”.
65. From the evidence before me, on balance, I find that the applicants will suffer injury in various ways if they are not granted citizenship. As they are not eligible for permanent residence visas, they will have to leave Australia. Once they leave, they will be unable to pursue further education at the level they wish in Australia. Their aspirations in Australia are reasonable and the second applicant has already achieved her HSC and commenced tertiary studies albeit at TAFE. She will be unable to do the same in Indonesia without first spending some years in acquiring formal Indonesian language skills, according to Professor Lindsey. She will also find it difficult to succeed in business or attain a senior position in events management because of the same lack of Indonesian based education. The first applicant has not yet graduated from high school but she will face similar difficulties in undertaking further education and in business or employment at the level to which she aspires in Australia. The applicants will lose the opportunity to better their qualifications and this will mean they lose the chance to have the careers they are working towards in Australia.
66. I have no doubt in concluding that the applicants will suffer an “unfavourable circumstance or condition” in this way. This is also, on balance, likely to cause them loss of “profit” as loss of business and employment opportunities in Indonesia will be limited due to their not having good language skills. I am sure they would find some employment but it is unlikely to be of the sort for which they will qualify or are well on the way to qualifying for in Australia. It is not difficult to see they will have an absence or deprivation of the advantage which their education and experience gives them in Australia. This consequence is significant and important and amounts to significant hardship in my view.
67. While it is possible that the parents of the applicants may be able to take advantage of their daughters becoming citizens of Australia, this is not a matter which the Act or policy dictates should result in the refusal of citizenship to the applicants. Therefore, after carefully analysing the matters I must take into account, I have decided that I should exercise discretion under subsection 13(9) in favour of the applicants.
conclusion
68. For the reasons above, I find that the applicants should be granted Australian citizenship.
decision
69. The reviewable decision is set aside and substituted is the decision to grant the applicants Australian Citizenship pursuant to subsection 13(9) of the Australian Citizenship Act 1948 (Cth).
I certify that the 69 preceding paragraphs are a true copy of the reasons for the decision herein of Ms Robin Hunt, Senior Member
Signed: ..........................[Sgd]..........................
Jennifer Wong, AssociateDate/s of Hearing: 17-18 April 2008
Date of Decision: 22 July 2008
Solicitor for the Applicants: Mr R Kessels
Counsel for the Respondent: Mr G Johnson
Solicitor for the Respondent: Mr T Eteuati
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