SANTANA and MINISTER FOR IMMIGRATION AND CITIZENSHIP

[2011] AATA 492

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2011] AATA 492

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No 2009/0518

GENERAL  ADMINISTRATIVE  DIVISION		)
Re		GUILHERME PERATZ SANTANA

Applicant

And MINISTER FOR IMMIGRATION AND CITIZENSHIP

Respondent

DECISION

Tribunal Mr John Handley, Senior Member

Date15 July 2011

PlaceMelbourne

Decision The Tribunal sets aside the reviewable decision dated 23 January 2009 and in substitution decides that the application for Australian citizenship by conferral be approved.

John Handley

Senior Member

CITIZENSHIP – by conferral – applicant under the age of 18 – applicant eligible to apply – 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 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

15July 2011 Mr John Handley, Senior Member

1.      This is an application to review a decision made by a delegate of the Minister for Immigration and Citizenship (the Minister) on 23 January 2009 to refuse to approve the applicant becoming an Australian citizen by conferral.

2.      The applicant, Guilherme (Guil) Peratz Santana was born on 18 May 1996 and is a citizen of Brazil.  He arrived in Australia on 7 May 2002 with his parents.  He was then 11 days short of his sixth birthday.  His application for citizenship was made on 31 October 2008 (T4, p41) and consent for the application was given by his father.  Guil is presently 15 years old.

3. Valdir Alecrim and Vivian Peratz Santana, Guil’s parents, applied for a protection visa shortly after arriving in Australia. Those applications were refused and subsequently affirmed by the Refugee Review Tribunal. On 3 August 2004 an application under s 417 of the Migration Act 1958 for Ministerial Intervention was also refused.  Guil, his parents and his sister, Isabella, who was born in Australia in February 2007, remain lawfully in Australia as the holders of Bridging E visas.  Isabella is not a citizen of Australia despite having been born here.  She does not meet the qualifications under s 12(1) of the Australian Citizenship Act 2007 (the Act).

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.  Prior to the hearing of this review, the solicitor for the Minister acknowledged that the relevant parts of the ACIs found within the T‑documents (at T3, p 27 ‑28) did not apply at the date that Guil made his application.  On 9 November 2010, the Minister’s solicitor provided the relevant parts of the ACIs and counsel for both parties agreed that those extracts were applicable in this proceeding.

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:

Ø  hold a permanent visa, including an adoption visa; and

Ø  …

Ø  are 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.

the hearing

7.      Evidence was given at the hearing by Guil, his mother and father (with the assistance of a Portuguese interpreter); Dianne O’Malley, a consultant psychologist who was engaged on behalf of Guil and Dr Janina Szyndler, a clinical psychologist who was engaged on behalf of the Minister, both of whom provided reports.  A number of other documents were referred to in evidence and will be described later in these reasons.

The Applicant

8.      Guil gave sworn evidence in these proceedings.  I was satisfied that he understood the nature of the oath and that he must give truthful answers to the questions asked of him.

9.      Prior to the hearing Guil lodged an undated statement which was received as Exhibit A1.  The statement is reproduced as follows:

1.[Address deleted]

2.I love Australia.  I was born in Brazil but I was only five years old when we came here.  I don’t remember much from Brazil, except from the newsagency where I would sometimes go to buy lollies.  I don’t remember any friends or family I have there.

3.I also don’t speak Portuguese very well.  I don’t speak it at all, really.  I know a few words and some basic conversational sentences, but I don’t know enough to talk to someone.  I certainly don’t know enough to go to school in Brazil.

4.I go to [deleted] Primary School here, and next year I am going to [deleted] Secondary College.  I am excited about starting high school, especially since some of my friends will be going to the same school as me.  I have lots of friends, who I have met at school, in my local neighbourhood, and also at the skate park.

5.My most favourite things to do at school are sport, because I have a passion for it; and maths, because I like to learn about numbers.

6.I think I’m pretty good at sport.  I have represented my primary school at lots of different carnivals and competitions for track and field events, and I have even represented my high school, even though I haven’t officially started there yet.  I also love to play soccer, tennis, rugby, AFL and basketball.  People don’t play AFL in Brazil.

7.When I grow up I would love to go to the Olympics and run for Australia, or play for the Socceroos.  I know that lots of kids say that they want to go to the Olympics, so just in case I’m not quite good enough, I’d also like to be an aviation mechanic and work on airplanes.  I know that I need to be an Australian citizen in order to go to the Olympics for Australia, and this is another reason why I would appreciate it if you could approve my application.

8.I know that if I’m not allowed to be an Australian citizen I would need to go to Brazil, because I don’t have a visa to stay here.  I couldn’t imagine having to go to Brazil and it makes me sad and also a little bit angry that I would have to leave this place, the place I call home.

9.I am also a little bit worried that I wouldn’t know how to live in Brazil.  I know that there are gangs and people who do drugs there and I think that I might not be able to stay away from them.  I worry that I will get mixed up with the wrong crowd and that my life will be bad.  I don’t have to worry about that here in Australia.  I don’t think that any 14 year old should have to worry about things like that.

10.I think that I am already part of Australia and this is why I think that I should be allowed to become an Australian citizen.  I have lived in Australia for almost eight years and I think and speak in English.  I have gone to school in Australia and I haven’t gone to school anywhere else.  I have lots of friends here but I don’t know anyone in Brazil.  I don’t speak enough Portuguese to be able to do anything in Brazil, and I know that I don’t understand the culture or the day-to-day living.

11.Most of all I want to be an Australian citizen because I know that I belong here.  It is where I live and it is who I am.

10.     Guil said that after he prepared his statement, he had moved address and he commenced secondary education.

11.     A great deal of the examination-in-chief and cross examination of Guil concerned his ability to speak, read and write in the Portuguese language.  He said that he had never learnt to read or write in Portuguese.  He is learning the Japanese language at school.  He does speak some Portuguese at home when communicating with his parents but does not speak Portuguese outside the family.  He does not translate for his parents.  He has no interest in learning the Portuguese language and said that he does not like it and it is too hard to learn (Transcript, p19).  He said that while the Portuguese language uses the English alphabet, symbols are placed above a number of letters to mark the emphasis to be placed upon particular letters or words.  He attended school in Brazil for a period of two months when he was aged five.

12.     Guil said he joined the Royal Australian Air Force Cadets (the Cadets) in September 2010.  He produced a group photograph of all current cadets and an individual photograph of himself.  In each photograph he appears in cadet uniform.  He said that ordinarily, only Australian citizens are permitted to become a member of the Cadets.  He was permitted to join pending his application for citizenship. 

13.     Guil said that he had no memories of life in Brazil and had no knowledge of what his life would be like should he return.  He acknowledged that in his statement he said he was worried about gangs and the prevalence of drugs in Brazil.  In evidence, he said that his parents told him about the gangs and drugs.  He has not spoken to any other persons about life in Brazil.  His parents came from a district known as Curitiba and Guil had no knowledge of what life was like in that area. 

14.     Guil said that he and his family moved address about four months before the commencement of the hearing.  He said he had made new friends locally and a number of students from his primary school moved to the same secondary school where he is now a student.  He said he found it quite easy to make new friends (Transcript, p14).

15.     Guil has a very keen interest in sport.  He plays soccer and watches it on television.  His favourite international teams are Australia and Brazil and he followed the progress of both Brazil and Australia in the 2010 World Cup.  He is aware that the World Cup in 2014 will be held in Brazil. 

16.     Guil thought that he may be able to play sport professionally.  He currently plays outdoor soccer with the Loganholme soccer team and has represented Australia in an under‑11s indoor soccer team during a tournament held in Canberra.  He also competes in athletics and has received prizes.  In addition to playing soccer and participating in athletics, Guil also plays in Australian Rules Football, cricket and basketball.  He follows the Brisbane Roar Soccer Club in the Australian domestic competition and follows the Geelong Football Club in the Australian Rules competition. 

17.     Guil attends the Cadets every Monday after school which involves marching, drills and learning about aviation matters.  The cadet training is held at a location, 15 kilometres away from his home.  Every three months he will be expected to undertake bush work for a weekend.  At the time of giving evidence, Guil had only been a cadet for two months and had not completed one such weekend. 

18.     In completing his evidence, Guil was asked whether there were any other matters that he wanted to volunteer in support of his application to be citizen of Australia.  He replied mainly because everything that involves around my life is here in Australia (Transcript, p19).

Viviane Peratz Santana

19.     Mrs Peratz Santana is Guil’s mother.  She completed a statement on 9 November 2009 which was translated to her by a properly accredited interpreter.  The statement was received as Exhibit A3. 

20.     Mrs Peratz Santana recorded that the Australian way of life has had a positive influence on her family and especially on her son.  She described him as a very strong, happy and respectful young man and I believe that this is because he has been brought up in Australia.  She referred to his education, his sporting and athletic abilities and his potential, as advised by his coaches, to become a professional sports person.  She is fearful that returning to Brazil would expose her family to violence without any security of accommodation or employment. 

21.     In evidence, Mrs Peratz Santana said that if she, her husband and children were required to return to Brazil, the only accommodation immediately available would be with her mother, who lives in a two room house.  She also has brothers and one sister in Brazil but they are very poor and would not be able to offer support (Transcript, p22).  They live in Curitiba which she said was south of Rio de Janeiro.

22.     Mrs Peratz Santana completed the academic component of a nursing course in Brazil before travelling to Australia.  However, she is not qualified to work as a nurse because she did not undertake practical training.  Additionally, her academic qualifications were obtained more than nine years ago and she believes that she would need to undertake further study in a private institution before she can qualify to practice as a nurse.  She said she would not be able to afford the fees to undertake that study. 

23.     She said at home, she mostly speaks to Guil in Portuguese and he usually responds in English.  She said that he has no ability to read or write Portuguese. 

24.     Mrs Peratz Santana said that if her son was granted citizenship and she was compelled to return to Brazil, there was no other person in Australia who would be able to look after him and care for him.  She said Guil has a very busy life in Australia which comprises his schooling, his soccer and athletic training, his participation in club sports and his commitments for the Cadets.She said no other person would be prepared to make the commitment required to care for him and travel to and from his extracurricular activities. 

25.     In the event that the family does return to Brazil, Guil would need to learn to read and write in Portuguese in order to assimilate and return to mainstream education.  She said that the family would not have funds to meet the cost of that type of tuition. 

26.     Mrs Peratz Santana was also concerned about the level of insecurity and crime in Brazil.  She said that she and her husband read Brazilian newspapers on the internet daily and are aware of violence, including shooting, the prevalence of gangs and a drug culture.  She said that her nephew was shot three weeks before the hearing while on his way home from a party.

27.     In cross-examination Mrs Peratz Santana confirmed that her husband arrived in Australia two years before she did.  They both travelled to Australia on a three month tourist visa.  They came to Australia to seek a better life for her family but had no intention, at that time, of staying permanently.  After spending some time in Australia, they agreed that living in Australia was preferred to living in Brazil and applied for protection visas.  The applications were refused.  Applications to the Minister to intervene on public interest grounds were also refused.  She agreed that she and her family remained in Australia for four years without a valid visa until 8 October 2010, when Guil made his application for citizenship.  She said Guil’s application was not intended to improve the prospect of her family being permitted to remain in Australia but was intended to permit Guil to become an Australian citizen.  She said the application is:

…about Guil because he’s stay here for too much longer and we start to worry about him not writing, not speaking Portuguese, and he’s much involved in Australian community here, so we worry if we have to go back to Brazil it’s not much about us.  It’s much more about Guil (Transcript, p26).

She said that Guil did not know that he had no right to be in Australia during the four year period immediately prior to October 2008. 

28.     Mrs Peratz Santana reaffirmed her concern about the level of violence in Brazil, no less in the district where her mother lives.  She said her mother was recently the victim of violence when she was robbed while walking to a bank.  She said that her mother’s handbag was cut by a person carrying a knife and that person ran away.  She said tourists in Brazil are frequently subjected to that type of robbery.  She acknowledged that her mother had been robbed on one occasion only in Brazil.

29.     Mrs Peratz Santana confirmed that she was worried that Guil did not speak, read or write Portuguese.  She said she did not attempt to teach him the language because he did not like it.  She said she and her husband communicate with each other in both Portuguese and English in the home.  When she speaks with Guil, she often responds to him in Portuguese because she is trying to give him some Portuguese.  She said that it was important for him to maintain some level of understanding of that language (Transcript, p30).  She said the Portuguese alphabet is the same as the English alphabet.  However, the construction of sentences differs because unlike English, Portuguese requires accents to emphasise specific letters and words.  

30.     Mrs Peratz Santana agreed that she had given a history to a psychologist that she would not leave Guil in Australia if her family were required to return to Brazil.  While she does not want her daughter to grow up and live in Brazil, she has not applied to have her conferred with Australian citizenship.  She and her husband are waiting on the outcome of Guil’s application.  If Guil’s application is successful, an application may be made by Isabella.  She has not spoken to Guil in any detail about where he may be living in the future because she does not want to scare him.  She said when these types of issues arise, he becomes disturbed, he cannot concentrate and she does not want him to think about these matters at the moment (Transcript, p32).

Valdir Alecrim Santana

31.     Mr Santana is Guil’s father.  He prepared a statement on 9 November 2009 which was translated to him by a properly accredited interpreter.  It was received as Exhibit A8.  In summary he recorded that Guil had lived for more than half of his life in Australia, he did not think of himself as a Brazilian person and regarded himself as an Australian.  He said Guil is a fast sprinter and committed to his sport.  He trains both at school and home.  Guil wants to represent Australia competitively but would need to be an Australian citizen to do so.  Mr Santana is fearful of violence and a drug culture in Brazil with which his son would not cope, having lived safely and with freedom in Australia.

32.     Mr Santana is self-employed as a concrete and plaster/renderer in Australia.  He said work of that type is undertaken by unqualified persons in Brazil and the wages earned is comparatively poor.  There was much discussion about this issue and it emerged that the building industry in Brazil is not made up of persons with specialist trade qualifications.  Apparently, apart from plumbing and electrical work, all other construction work is undertaken by the same persons.  Mr Santana is qualified only as a renderer.  When it was further clarified in examination-in-chief, he said that he thought that he might be able to obtain employment in the building industry but the wages earned would not be sufficient to support his family.

33.     When he lived in Brazil Mr Santana was engaged in office work.  He did not think he could obtain similar work if he was compelled to return because of his age, his absence from Brazil and a preference by employers to engage younger persons with greater qualifications, some having tertiary degrees.  He is now 42 years of age.

34.     Mr Santana said he had never seen his son reading or writing in Portuguese.  He is able to have a limited conversation with Guil in the Portuguese language but frequently he is compelled to speak to his son in English because Guil does not understand many Portuguese words.

35.     In evidence, Mr Santana reaffirmed the contents of his statement, particularly his concern about the level of violence and crime in Brazil.  He said that most of the violence occurs in the major cities.  However, discussions he has had with friends and family and reports in Brazilian newspapers and on the internet suggest that crime is also prevalent in the smaller cities. 

36.     In cross-examination, Mr Santana confirmed the evidence given previously by his wife.  He acknowledged that he remained in Australia for four years without a current visa and was also aware that at the completion of this application, his visa will expire and he may be compelled to return to Brazil. 

37.     Mr Santana said he did not know what he would do if he returned to Brazil.  He reaffirmed that he was worried about crime and violence, particularly the impact on Guil if he is influenced by the wrong crowd.  He said that Guil is a well behaved boy and had never been in any type of trouble in Australia.  Mr Santana said that he has brought his son up to know right from wrong.  His family are Christians and they talk daily about the good things and the bad things that can happen in our lives (Transcript, p68).  He agreed that should the family return to Brazil he would do everything possible to protect Guil from negative influences.  Mr Santana said that while he will do everything possible in the home, there is very little he can do when Guil goes out to socialise (Transcript, p68).

EVIDENCE OF PSYCHOLOGISTS

38.     The representatives of each party arranged for Guil and his parents to be interviewed and assessed.

39.     Guil’s solicitors requested psychological assessments from YoungMinds Health and Development Network (YoungMinds) in Brisbane.  Christina Hully, a consultant psychologist who is a subcontractor for YoungMinds, assessed Guil and his parents in October 2009 and prepared a report dated 17 October 2009 (Exhibit A7).  Guil’s solicitors sought an updated assessment from YoungMinds.  Ms O’Malley, a consultant psychologist and the proprietor of Young Minds interviewed Guil and his parents and prepared a report dated 5 November 2010 (Exhibit A5).    

40.     The assessment by Ms O’Malley was conducted in the presence of Ms Michela Tomasel, an intern psychologist.  Ms O’Malley said, in evidence, that Ms Tomasel prepared the report.  The report bears the name of both Ms Tomasel and Ms O’Malley.  Only Ms O’Malley has signed it.  She said she adopted all of the conclusions and opinions expressed by Ms Tomasel.  Both had a copy of the report of Ms Hully from the initial assessment and they have referred to it in their report of 5 November 2010.  Ms Hully did not give evidence.  Ms O’Malley said that she was unavailable on the day of the hearing of this review.

41.     The Minister engaged Dr Janina Szyndler, a clinical psychologist, who interviewed Guil and his parents on 31 May 2010.  She provided a report dated 15 June 2010 which was received as Exhibit R1.

Dianne O’Malley

42.     Ms O’Malley said that she assessed Guil’s ability to adapt to a new environment if he returned to Brazil.  She undertook that process by interviewing him and his parents, interpreting a number of questionnaires and assessment tools that she asked him and his parents to complete.  She also asked Guil to draw and she interpreted the drawings.  She said she needed to assess his social, economic and academic abilities to see what impact adapting to a new environment would have on him (Transcript, p37).

43.     Having regard to the results she obtained, Ms O’Malley concluded that Guil should be permitted to continue living in Australia with his parents and not separated from them at any period of time. 

44.     Ms O’Malley reported:

… that forcing Guilherme to abandon his life in Australia could result in a myriad of adjustment problems which may affect his ability to function effectively.  Similarly, allowing Guilherme to remain in Australia whilst his parents return to Brazil would be equally distressing and harmful to his development.  (Exhibit A5, p5)

45.     In evidence, Ms O’Malley explained that the adjustment problems that she referred to were concerned especially with his social development at his age.  She said that social identity is really important at that age, so he would have to adapt to that whole new experience of what that might be (Transcript, p38).  She said Guil did exhibit some anxiety which exposes him to some risk.  She said he was also at risk of being unable to connect to a new school.  While he has some familiarity with the Portuguese language, his skills are not at a level that would allow him to cope academically in Brazil.  He would have to learn to read, write and communicate in Portuguese. 

46.     Guil was aged 14 at the time of assessment and Ms O’Malley said that his age was very significant because during adolescence persons usually find their identity.  She said he identifies himself as being an Australian and living in Australia with his parents.  She concluded that Guil has adapted to his school and environment in Australia.  Despite some anxiety, she does not have any concerns about his ability to cope in Australia, should the status quo be maintained. 

47.     In cross-examination, Ms O’Malley confirmed that she worked with Ms Tomasel in assessing Guil and his parents.  There was collaboration between them interpreting the clinical data and they both read and verified Ms Hully’s report before they assessed Guil and his parents.  They were satisfied that the conclusions and opinions reached by Ms Hully were correct in the context of the updated information that they obtained during the consultation on 2 November 2010 (Transcript, p41).  Ms O’Malley said that she and Ms Tomasel did not intend to conduct a fresh assessment of Guil and it was not intended that an opinion independent of the views expressed Ms Hully would be given (Transcript, p41-42).

48.     Ms O’Malley used the same assessment tools that were used by Ms Hully.  She agreed that her conclusions were consistent with the opinions expressed earlier by Ms Hully except that she noted Guil had a mildly elevated level of anxiety than would be expected in a boy of his age.  She agreed that he coped well adjusting to living in Australia, despite his inability to speak English when he first arrived here from Brazil.  She said he received additional support in school to assist him with the English language.  She did not know whether that support was also associated with his hearing impairment. 

49.     Ms O’Malley agreed with opinions expressed by Dr Szyndler that Guil was a happy and healthy young person with no behavioural or emotional problems and he has a good relationship with his parents and shows the capacity to develop good relationships with others.  However, her agreement with those opinions was qualified by her assessment of him being vulnerable and having some anxiety.  Ms O’Malley also noted that Guil has above average adaptive functioning skills (Transcript, p43).  Those skills and his ability to develop good relationships will, in her opinion, assist him if he moved to a new environment (that is, if he were to return to Brazil).  However, she qualified that opinion by noting that movement from one country to another by an adolescent would expose that person to considerable cultural adjustment which she said would impose a challenge upon him.  Additionally, his ability to cope with the Portuguese language would be an extra burden.  Whilst she had no personal knowledge of life in Brazil, she has spoken with other persons of Brazilian origin and understands that there was an extreme difference between wealthy and poor in Brazil (Transcript, p 44).

50.     Ms O’Malley did not assess the ability of Guil to speak Portuguese but rather relied on the letter of instruction from his solicitors which in part recorded:

…Guil does not speak Portuguese competently and that his comprehension is limited.  I am instructed that Guil would struggle to achieve scholastically in Brazil due to the inability to communicate effectively… (Exhibit A7)

Ms O’Malley said those comments make sense.  She said that if a person attends a school and is unfamiliar with the language spoken at the school, the person is likely to have difficulty adjusting.  The person may become disconnected and choose to discontinue their schooling (Transcript, p47).  Ms O’Malley said she has had experience with children who have moved to another country and have ultimately failed subjects because of their inability to communicate orally or in writing, or comprehend the language of that country.  She agreed that her opinions on this issue were based on an assumption that the information given to her by Guil’s solicitors was correct, namely his inability to communicate effectively in Portuguese. 

51.     Ms O’Malley was asked to comment on the opinions expressed in the earlier assessment of Ms Hully (Exhibit A1).  Ms Hully concluded that if forced to return to Brazil, Guil would face significant hardship and disadvantage and many areas of life and functioning would be impacted (Exhibit A1, p6).  In relation to social and emotional hardship, she reported that Guil lives a life of an innocent child in Australia and the risk of psychological trauma is significant because of the presence of physical or sexual violence, drugs or other criminal activities in Brazil.  Ms O’Malley said that she had been informed by his parents that there was a high risk of physical and sexual violence, drugs and other criminal activity in Brazil.  She had no personal knowledge of that type of behaviour. 

52.     Ms Hully reported that:

Other hardships that Guil would be vulnerable to in making adjustments to a country he is forced to go to could be concentration and memory difficulties, eating difficulties, loneliness, sleep difficulties.  There are no predisposing indicators for these difficulties (Exhibit A1, p7). 

Ms O’Malley in part agreed with those opinions save that she thought Guil was predisposed to anxiety (Transcript, p49).

53.     In her report, Ms O’Malley drew attention to the social, emotional, physical, educational and financial hardship and disadvantages that Guil would be exposed to as identified by Ms Hully (Exhibit A1, p6-8).  She adopted the conclusions of Ms Hully and emphasised that the most significant factor for her was the absence of command by Guil of the Portuguese language.She said his ability to participate in schooling without the ability to read, write and speak Portuguese fluently would adversely affect him academically, socially and emotionally, especially because of his age and his stage of development (Transcript, p50-51).  

54.     Ms O’Malley also agreed with conclusions expressed by Ms Hully that any separation of Guil from his parents would adversely affect him.  They were both of the opinion that Guil should be permitted to remain in Australia with his parents and therefore not be separated from them.  Ms O’Malley was not aware that irrespective of the outcome of this review, Guil’s parents may be required to return to Brazil.  She said that if that occurs, it would be quite significant in terms of his wellbeing (Transcript, p52).

55.     Ms O’Malley was also referred to and agreed with an opinion within Dr Szyndler’s report (Exhibit R1), namely:

…unless the family was to face extreme hardship or deprivation in Brazil the move there would have a slightly less detrimental impact on Guil’s psychological functioning than a long term or possibly indefinite separation from his parents and sister. (Exhibit R1, p15)

Dr Janina Szyndler

56.     Dr Szyndler is a clinical psychologist practising in Sydney.  She travelled to Brisbane to interview Guil and his parents.

57.     In evidence, Dr Szyndler said that the main issue confronting Guil having lived in Australia for many years was his limited experience and understanding of life in Brazil.  She was also aware that he had limited Portuguese literacy skills and any return to Brazil would be quite challenging for him (Transcript, p79).  She was also concerned about the economic situation that his parents would confront should they be required to return to Brazil.

58.     Dr Szyndler was asked to consider the effect on Guil of being separated from his parents if he remained in Australia and his parents returned to Brazil.  She said there were a number of variables depending on whether separation was short term or for a defined period.  She thought Guil would cope with a short term separation but if it was of uncertain duration, he would find it difficult.  She was aware that Guil’s parents had indicated that they would not leave him in Australia if they were required to return to Brazil.  In her report, Dr Szyndler concluded:

…that unless the family was to face extreme hardship or deprivation in Brazil, the move there, would have a slightly less detrimental impact on Guil’s psychological functioning than a long term or possibly indefinite separation from his parents and sister (Exhibit R1, p15).

59.     In cross-examination, Dr Szyndler confirmed her opinion that if Guil returns to Brazil with his parents, he will be exposed to the potential of developing an adjustment disorder and depression in the long term (Exhibit R1, p14).  She said that adjustment disorder is a DSM-IV-TR defined illness where a person reacts to something that’s out of the ordinary and the reaction is over and above what might be anticipated (Transcript, p85).  She thought that moving from one country to another is a significant life event and the risks to which a person would be exposed compounded if the move is involuntary.

60.     Dr Szyndler agreed that if Guil is permitted to remain in Australia with his parents, there is no likelihood of any detriment to him or risk of an adjustment disorder developing.  She said he presented to her as a well-functioning young man who appears quite settled and happy in his life, and he doesn’t present with any vulnerabilities in terms of his developmental history to date or his adjustment at school or his relationship with his family (Transcript, p81). 

61.     Dr Szyndler reported that the risk of future psychological problems will result from the social or economic disadvantage that his family will confront in Brazil and his unfamiliarity with Brazil, together with his reluctance to move (Exhibit R1, p11).    On the basis of the history she obtained and the information provided by Guil’s parents, she said that the economic and employment prospects in Brazil, concerns about safety and the prevalence of crime in the district where they would live and uncertainty about Guil’s schooling could all combine to have an adverse effect on him.  The negative impact will be exacerbated by with the fact that the move would be involuntary.  However, she thought that if his family was encouraging and portrayed the challenge of returning to Brazil as a positive exercise, any stress or resentment he might feel would be ameliorated (Transcript, p83, 87-88).

62.     Dr Szyndler said that Guil’s age was significant because at the age of 14 his sense of identity has become clearly defined (Transcript, p83).  Therefore, adjusting to life in Brazil would be challenging for him.  He is not literate in Portuguese and will not be able to slot in to the Brazilian education system.  The language difficulties will pose problems for him, especially if he attends a public school where minimal support is available.  Guil will be required to start his education again and is likely to feel left behind and frustrated because of his inability to fulfil his academic potential.  His self-esteem would suffer and he could become resentful (Transcript, p83-84).   

63.     In re-examination, Dr Szyndler said that attempting to assess long term risks of psychological harm to an adolescent is not a linear process.  She said that life events are influenced by trajectories and interaction.  She referred to research which found that economic problems precipitate worse outcome for boys than for girls.  The potential trajectories and risk, to which Guil would be exposed on his return to Brazil, depend on a number of unknown variables and each variable places an increased risk of problems emerging (Transcript, p87).  For instance, if the family move to a safe and secure location, with good economic prospects, and employment and scholastic opportunities for Guil, the risk of psychological or emotional harm to him would be reduced.  Conversely, a move that places the family under social and economic stress increases the risk of problems in the marriage which in turn impacts on the child, thereby increasing the risk of psychological harm (Transcript, p87).  

COUNTRY INFORMATION AND DATA

64.     The Minister lodged a bundle of documents which contained information about Brazil (Exhibit R2).  The information has been prepared by the Department of Foreign Affairs and Trade (DFAT), Austrade, Bloomberg, United Nations Children’s Fund (UNICEF) and United Nations Educational, Scientific and Cultural Organisation (UNESCO). 

Education

65.     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 (Exhibit R2, p6-7). 

66.     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.    

Employment and Economy

67.     The information prepared by Bloomberg provides that in 2010, the Brazilian economy was expanding (Exhibit R2, p 10-13).  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.  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 (above the annual forecast of 5 per cent for the whole of 2010).  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.

68.     The International Monetary Fund regards Brazil as the eighth largest economy in the world with a Gross Domestic Product of $US1.481 billion.  It has a Standard and Poor’s rating of triple B minus.  The global financial crisis had minimal impact on Brazil.  The foreign investment in Brazil in 2010 was forecast to be $US45 billion (Exhibit R2, p16).

69.     Brazil has well developed industries in the agricultural, mining, manufacturing and service sectors. 

Government and Political Overview

70.     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.

71.     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.  In 2009 21.5 per cent of Brazilians were living below the national poverty line, a reduction of 6.6 per cent from the 2003 annual figure (Exhibit R2, p15-16).

72.     Although Brazil is enjoying considerable economic growth, it is thought that there are considerable difficulties implementing economic reform, especially in tax and business regulation.  Key challenges facing the Brazilian Government include judicial reform, improving education and fighting crime and corruption.  In the long term, economic growth will be dependent on considerable investment in infrastructure especially in railways, roads, ports and the energy sector.

Health

73.     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 workers’ record book.  Before SUS was implemented, 30 million people had access to healthcare services and now the figure has increased to 190 million.

74.     Data produced by the Ministry of Health in Brazil 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, p32).   

Crime/Civil Unrest

75.     The DFAT 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.  Carjacking is also common in other 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, p21-22).

Housing and Social Security

76.     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). 

APPLICATION OF POLICY – The ACIs

77.     A person under the age of 18 years is eligible to become an Australian citizen (s 21(5) of the Act).  However, the Minister or his delegate may exercise the discretion in s 24(2) of the Act and refuse approval of Australian citizenship to an eligible person.  The ACIs, is a policy document that provides guidance to decision-makers in exercising the discretion available in s 24(2).  The application and interpretation of the ACIs was the subject of lengthy submissions in this application for review.

78.     The ACIs provide that the discretion to refuse to approve an application for Australian citizenship would usually be exercised where the applicant does not meet the policy guidelines.  The ACIs also record that when making a decision to either refuse or approve an application there are three primary considerations that need to be taken into account.  They are the legislation, the best interests of the child and the policy guidelines themselves.

79. The relevant legislation is the version of Act in force before 9 November 2009. On 9 November 2001, s 21(5) of the Act was amended by the Australian Citizenship Amendment (Citizenship Test Review and Other Measures) Act 2009. Unlike its predecessor, s 21(5) now requires an applicant under the age of 18 to be a permanent resident both at the time the application for citizenship was made and at the time the Minister's decision was made.

80. Section 21(5) of the Act as it applies to Guil is satisfied because the only eligibility requirement is whether an applicant is under the age of 18 years at the date of application. Although there is no legislative requirement of permanent residence in the Act in force at the time Guil made his application, it is a feature in the ACIs. I will return to that issue later.

81.     The second primary consideration is the best interests of the child.  Article 3(1) of the Convention on the Rights of the Child (the Convention) requires that in all action 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.

82.     The third primary consideration prescribed by the ACIs is the Policy Guidelines.  The ACIs provide that persons under the age of 16 will usually be approved under section 24 if they hold a permanent visa, are living with a responsible parent who is an Australian citizen and who would suffer significant hardship or disadvantage within the meaning of Attachment B of the ACIs.  In previous decisions, I expressed the view that the requirements set out in the ACIs are not prescribed in the relevant legislation and therefore, place a fetter on the discretion (Re SNMX and Minister for Immigration and Citizenship (2009) 110 ALD 645; Re Zlatanovski and Minister for Immigration and Citizenship (2010) 114 ALD 452). In the decision in Singh v Minister for Immigration and Citizenship [2011] FCA 685, Marshall J decided on 17 June 2011 that the ACIs are not ultra vires. I am bound to follow His Honour’s decision.

83.     Guil does not hold a permanent visa and he is living with a responsible parent who is not an Australian citizen.  If he can demonstrate that he would suffer significant hardship or disadvantage in the event that his application is refused, his application should be approved.  Attachment B of the ACIs provides definitions of significant, hardship and disadvantage.  It also sets out the circumstances that will qualify as significant hardship and disadvantage as follows:

·inability to gain employment on the grounds that 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.

84.     Attachment B directs decision-makers to assess each application on its merits and whilst policy is not to be applied inflexibly, it must be applied unless there are special circumstances that would warrant consideration outside the policy.

85.     If an applicant does not meet the policy guidelines ‑ and Guil does not ‑ the decision-maker 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.

86.     The word unusual was the subject of extensive submissions by both parties.  The parties referred to my decision in Re Zlatanovski 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 meant 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.

87.     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).

88.     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.

89.     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.

90.     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.

91.     In the policy, the word unusual is found within the composite phrase the unusual nature of those circumstances.  Consideration must be given to Guil’s full circumstances, including his best interests, as a primary consideration, in exercising the residual discretion conferred by the ACIs. 

CONCLUSION

92.     Neither Guil nor his parents are permanent residents.  They are presently permitted to remain in Australia as the holders of Bridging E visas until this application is decided.  Guil’s parents are aware that irrespective of the outcome of this application, they may be compelled to return to Brazil.  They both indicated that should that occur, Guil will return to Brazil with them even if he is conferred with Australian citizenship. 

93.     Whilst the tenure of Guil continuing to reside in Australia is presently uncertain, his application will be decided on its merits.  If he is granted citizenship and returns to Brazil with his parents, he will be permitted to return to Australian and resume residence if he chooses to do so. 

94.     As recorded earlier in these reasons, Guil cannot satisfy the ACIs because he has not been granted permanent residency, nor is he living with a responsible parent who is a permanent resident.  Additionally, it is his age, predominantly which prevents him from satisfying the significant hardship and disadvantage provisions of Attachment B because he cannot demonstrate an inability to gain employment, difficulty in international travel or that his academic potential is limited because such an opportunity is restricted only to Australian citizens. 

95.     A residual discretion remains available under the ACIs for persons who do not meet the Policy Guidelines.  In the exercise of that discretion consideration must be given to:

…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.

96.     The full circumstances of the application will be analysed later but for the moment the best interests of the child require consideration.

97.     The parties agree that consistent with Australia’s treaty obligations, the best interests of the child must be a primary consideration pursuant to Article 3(1) of the Convention.  The ACIs do not define the phrase 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. 

98.     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.

99.     Guil is presently aged 15 and has lived in Australia for 9 years.  He lives with his parents and his younger sister.  Having heard from him and his parents, I am satisfied that he lives in a stable, caring and loving family environment. 

100.   Save for 2 months of primary education in Brazil, the entirety of his education to date has been undertaken in Australia.  The reports contained within the T‑documents from his school, his church and teachers, all describe him as committed, confident and enthusiastic. 

101.   Guil gave evidence that he mainly communicates in English.  He said that while he speaks some Portuguese at home, he has not learnt to read or write it.  His evidence was supported by his parents.  I accept that evidence and find as a fact that Guil predominantly speaks the English language, has a very limited command of oral Portuguese and is unable to read or write Portuguese. 

102.   If his application is refused and he returns to Brazil, I am satisfied and find as a fact that he will be considerably disadvantaged.  The progress of his education and scholarship in Australia will end.  Guil is completing his secondary education.  However, the evidence suggests that he is unlikely to qualify for admission in the same year level in a Brazilian secondary school because of his inability to read and write in Portuguese.  Inevitably, Guil will require tuition to develop his communication skills.  Assuming that such tuition exists, it is not known whether it will readily be available to him.  If tuition is only available privately, the evidence from Guil’s parents satisfies me that it is unlikely that they will be able to afford the costs of it.  The progress of his secondary education will therefore be hindered. 

103.   The country information provided by the Minister indicates that the English language is regarded as essential for academic progress.  I do acknowledge that Guil’s command of English will be an advantage to him.  However, I do not accept that his fluency in English will allow him to overcome the problems associated with his limited Portuguese language skills.   

104.   Guil’s limited Portuguese was a significant consideration for both psychologists.  Ms O’Malley reported that Guil is at risk of being disconnected because he will face extreme difficulty in adjusting to and being part of the Brazilian education system.  She said that adjustment difficulties may cause Guil to leave school.  Her opinion was premised on the assumption that Guils Portuguese language skills are minimal.  Dr Szyndler reported that Guil is at risk of being left behind academically because of his inability to communicate effectively in Portuguese which may adversely affect his self-esteem, cause him frustration and resentment. I accept that the absence of Portuguese language skills will limit Guil’s ability to adjust to the Brazilian education system and impede his academic development, thereby causing him psychological harm.

105.   I am impressed by the extra-curricular activities Guil undertakes, namely in his sport and his membership with the Cadets. 

106.   It would appear that he is a very promising athlete and has been awarded prizes.  He has played representative soccer for Australia in an under 11 competition interstate.  He follows the Australian and Brazil soccer teams and the Brisbane Roar Soccer Team in the Australian Domestic Competition.  He follows Geelong in the AFL competition.  He also enjoys rugby, tennis and basketball.  He aspires to become a member of the Australian athletic team in future Olympic Games. 

107.   Guil aspires to be an aviation mechanic and is presently a member of the Cadets.  His membership with the Cadets requires a considerable training commitment every Monday night after school and which involves a 15 kilometre round trip.  At the date of hearing, he was also expected to participate in weekend camps but that activity had not commenced.  He was informed that he is not presently entitled to be in the Cadets because he is not an Australian citizen, but he has been permitted entry pending the outcome of this application.  Certainly, if his application is refused, the association with the Cadets will end and his aspiration of qualifying as an aviation mechanic in Australia will not be realised. 

108.   Both Ms O’Malley and Dr Szyndler were of the opinion that Guil would be at risk of suffering an adjustment disorder if he is required to return to Brazil.  Both identified a potential risk to his identity and social development.  Ms O’Malley observed some minor anxiety in Guil which she thought could be exacerbated if he is compelled to return to Brazil.  Dr Szyndler was concerned Guil would suffer long term depression.

109.   Dr Szyndler and Ms O’Malley acknowledged that if Guil and his family are required to return to Brazil, there will be a need for considerable cultural and economic adjustment.  They agreed that such a move will be at least challenging.  However, the psychologists also agreed that the risks to Guil’s self-esteem and development could be ameliorated if his parents were encouraging about the move and treated the return to Brazil as a positive experience.

110.   On the evidence heard in these proceedings, the absence of accommodation, the uncertainty about where the family will live and uncertainty about whether one or both parents will be able to obtain employment (and therefore a regular income) cause me to be pessimistic about the ability to treat returning to Brazil as a positive exercise.  Indeed, Guil would be exposed to considerable uncertainty and the experience is likely to adversely affect his development.

111.   He will lose all association that he has with Australia which is centred on his school, his friends, his church and his sport.  He does not know any persons in Brazil.  There is much to indicate that he does acquire friends easily and even if he did make new friends, his ability to communicate with them, at least initially, will be restricted.  The uncertainty that he faces in progressing his education – which will be a major part of his life as an adolescent – exposes him to the potential risk of failure.  At best he will face an enormous challenge.

112.   In evidence, Guil’s parents expressed their concern about violence and drug culture in Brazil to which Guil would be exposed.  The country information and data provided by the Minister also referred to gang violence which appears to be prevalent in major cities.  Although it is not known where Guil and his family will live should they return to Brazil, the risk of gang related crimes and other acts of violence cannot be discounted.  

113.   There is much to indicate from the country information and data that Brazil is currently enjoying a resurgent economy.  Yet 21.5 per cent of the population live below the poverty line.  That is to say one in every five people is in poverty.  There is no evidence of a social security system.  Although a stipend is payable to ensure children are fed, clothed, educated appropriately and have access to medical treatment, nothing points to pensions or benefits payable to persons who are unemployed.  Additionally, there is no information concerning schemes or agencies – whether private or public – promoting or advertising job vacancies. 

114.   I acknowledge that the Minister may properly exercise the discretion available to him under s 24(2) of the Act to refuse conferral of citizenship despite Guil being eligible to apply for it.  I accept also that the Minister must have a policy which guides him in the exercise of the discretion.  Nonetheless, the Policy does provide a residual discretion which allows flexibility to ensure that the best interests of the child are met, having regard to the full circumstances of the case.  That compels a comparison of present circumstances in Australia and the circumstances that could reasonably be foreshadowed in Brazil.

115.   Should Guil return to Brazil he may, in the long term become well adjusted.  Or he may not.  I am concerned that at his age, without effective communication skills, friends and associates in Brazil, coupled with the uncertainty of where he will live and whether his family will be able to support him, in a country in which he has little familiarity, exposes him to the risk of adjustment disorder and psychological harm.  The nature of those circumstances is sufficiently unusual to warrant approval of the application.  Failure to do so would not be in Guil’s best interests, a factor the ACIs regard as a primary consideration.  His present circumstances, especially his connection with Australia, which he regards as his home, will end and that will be in all probability to his detriment.  This would be an exception to the usual case (refer An at [7]) or out of the ordinary (refer K v Cullen at 44-45).

116.   As discussed earlier, the usual circumstances involving children, especially teenagers, should ensure that their development progresses in a stable and secure environment without imposed or involuntary disruption.  Part of that development is the regularity of education, the fellowship of friends and community and the emotional and economic security of family.  Usual circumstances would also extend to security of accommodation, welfare and healthcare, and opportunities to pursue interests and aspirations.  All these circumstances apply to Guil.

117.   I acknowledge that Guil’s ambition or aspiration to be an aviation mechanic and pursue a career either in the Air Force or in the aviation industry may change.  However, I can do no more in this review than to make the correct or preferable decision on the materials before me at the date of the review.  Guil has impressed me as being a very committed decent teenager who willingly gave evidence.  He is a credit to his parents and the assessments of his teachers, his coaches and the Pastor of his church are well founded (T4, p86).  Guil regards himself as an Australian and has no affinity or association with Brazil.  Citizenship of Australia will permit him to realise his potential.  It would not be in his best interests for that to impeded or denied.

118.   Policy must be applied objectively to the subjective circumstances of the person seeking citizenship.  If not apparent from the foregoing, this decision has had regard to the unique circumstances of Guil.  On balance, I am satisfied the discretion to confer citizenship should be exercised in his favour. 

DECISION

119.   The decision under review is set aside and in substitution it is decided that Guil’s application for citizenship by conferral be approved.

I certify that the one hundred and nineteen [119] preceding paragraphs are a true copy of the reasons for the decision herein of

Mr John Handley, Senior Member

Signed:          Olympia Sarrinikolaou

Legal Assistant

Dates of Hearing  15-16 and 19 November 2010
Date of Decision  15 July 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