Seo Jung Lee and Minister for Immigration and Citizenship
[2010] AATA 217
•29 March 2010
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2010] AATA 217
ADMINISTRATIVE APPEALS TRIBUNAL )
) No 2009/4325
GENERAL ADMINISTRATIVE DIVISION ) Re Seo Jung Lee Applicant
And
Minister for Immigration and Citizenship
Respondent
DECISION
Tribunal Senior Member Jill Toohey Date29 March 2010
PlaceSydney
Decision The Tribunal affirms the decision under review ..............[sgd]................................
Senior Member
CATCHWORDS
CITIZENSHIP - subclass 457 business (long-stay) temporary visa – application for Australian citizenship – applicant aged under 16 years at time of application – applicant did not satisfy the policy requirements for conferral of citizenship – does not meet residency requirements - whether unusual or exceptional circumstances – decision under review affirmed.
Australian Citizenship Act 2007
Raisani and Minister for Immigration and Citizenship [2008] AATA 640
Re Choi and Minister for Immigration and Citizenship [2008] AATA 726
Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634
Yun Seon Pak and Department of Immigration and Citizenship [2010] AATA 157
REASONS FOR DECISION
29 March 2010 Senior Member Jill Toohey Background
1. Seo Jung Lee was born in South Korea in October 1993. She came to Australia with her parents and older sister in October 1999. Since then, they have been granted various kinds of temporary visas which have enabled them to remain in Australia.
2. Ms Lee is aged sixteen and is in year 11 at high school. She currently holds a subclass 457 business (long-stay) temporary visa by virtue of her father’s subclass 457 visa. Her visa will expire on 1 July 2012.
3. Ms Lee has applied for Australian citizenship. On 27 August 2009, a delegate of the Minister for Immigration and Citizenship (the Minister) decided that Ms Lee did not satisfy the policy requirements for conferral of citizenship on a person of her age. Ms Lee seeks review of that decision.
The legislation
4. The Australian Citizenship Act 2007 (the Act) provides that citizenship may be conferred upon an eligible person including a person who is under 18 at the time of his or her application: s 21(5)
5. If a person makes an application for citizenship under s 21, the Minister must, in writing, approve or refuse the application: s 24 (1)
6. The Minister may refuse to approve an application for citizenship despite a person being eligible in accordance with the Act: s 24 (2)
The policy
7. The Act gives no guidance as to how the discretion to refuse an application for citizenship should be exercised. However, guidance in the form of published policy is found in the Australian Citizenship Instructions as amended from time to time. The version applicable here is the Australian Citizenship Instructions 2007 (the Instructions).
8. There is no dispute that, following Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634, the Tribunal should apply the Instructions unless there are cogent reasons not to do so.
9. Ms Lee was aged fifteen at the time of her application. The relevant parts of the Instructions, as they apply to her, state:
Children under the age of 16 applying individually in their own right would usually be approved under s 24 if they meet the following policy requirements:
§hold a permanent visa, including an adoption visa; and
§are under 16 years of age when applying, are living with a responsible parent, who is an Australian citizen and consents to the application, or
§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 for definition); or
§are under 16 years of age when applying, and in the care of another person, such as a relative, who consents to the application, and the child would otherwise suffer significant hardship or disadvantage or
…
In the case of an applicant who does not meet the policy requirements above, decision makers must consider the full circumstances of the case, including the best interests of the child, to determine whether the application nevertheless warrants approval because of the exceptional nature of those circumstances. The circumstances would need to be very unusual to warrant approval of an application outside policy.
Attachment B states:
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 alternative employment is not available
§difficult 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 are available only to an Australian citizen, to the extent that it causes significant hardship.
Should Ms Lee’s application for citizenship be approved
10. Ms Lee concedes that she does not meet the residency requirements in the policy but she asks that her application be approved on the ground of her exceptional circumstances.
11. Ms Lee has provided a detailed written statement and gave evidence before the Tribunal. She has nearly completed high school and is apparently doing well. She hopes to go on to study dentistry in Melbourne. Her older sister has completed nursing studies at the University of Technology in Sydney and is currently studying for the International English Language Testing System examination which she hopes will enable her to obtain a skilled migration visa.
12. Other than one trip back to South Korea in about 2004, Ms Lee has lived in Australia all her life. She sees Australia as her home and identifies as Australian; she feels “deep inside my heart” that she is Australian. She has few memories of South Korea as a child and found it “suffocating” when the family visited in 2004; everywhere she turned there were apartments, and young people had few of the freedoms they have in Australia.
13. Ms Lee’s parents speak Korean at home and she speaks a mix of English and Korean with her Korean friends but, not surprisingly, her written and oral Korean language skills have not developed much beyond what they were when she first came to Australia. She can read comics in Korean but not novels; she can write in Korean but her vocabulary is limited. She describes how her cousins in South Korea teased her when she visited in 2004 because of her limited understanding.
14. If she had to return to South Korea, Ms Lee says she would struggle to make up for her lack of communication skills and her education, and consequently her employment opportunities, would be adversely affected.
15. The Minister does not dispute Ms Lee’s attachment to Australia or that she would find it difficult to live in South Korea. However, he contends, firstly, that there is nothing to suggest that Ms Lee would be required to return to South Korea during the life of her current visa and, even after that, nothing would preclude her from applying for further visas, whether a student visa in her own right, or as part of her father’s business visa application. He says there nothing to suggest that Ms Lee could not in the future apply for further temporary visas, for permanent residence and ultimately, if she wishes, citizenship. Avenues of review and appeal would be available to her if any such application was unsuccessful.
16. The Minister further contends that nothing turns on an adverse decision to Ms Lee in these proceedings. In this respect, it is submitted that her application can be distinguished from those in Raisani and Minister for Immigration and Citizenship [2008] AATA 640 and Re Choi and Minister for Immigration and Citizenship [2008] AATA 726 in which decisions refusing citizenship applications were set aside by the Tribunal. In those cases, the applicant had effectively no other option for remaining in Australia. (Arguably, each can be distinguished for other reasons as well).
17. More importantly, the Minister contends, there is nothing exceptional or unusual about Ms Lee’s circumstances that warrant departure from the policy that permanent residence is a requirement for citizenship. The Minister acknowledges the personal difficulties she would face if she had to leave what has become her home, as well as the difficulties she would face living in South Korea. However, the Minister maintains they are the difficulties anyone would face in such circumstances.
18. Ms Lee concedes that she cannot rely merely on the effluxion of time. She accepts the reasoning in Yun Seon Pak and Department of Immigration and Citizenship [2010] AATA 157 in which of Deputy President Buchanan affirmed a decision to refuse citizenship in a matter similar to this, but she asks that her circumstances be given sympathetic consideration nevertheless.
19. Ms Pak had lived in Australia since she was one year old. She applied for citizenship just before her 18th birthday. She was apparently attached to Australia in much the same way as Ms Lee; she was studying at university here and saw no future her herself in South Korea. She maintained her exceptional, or very unusual, circumstances warranted approval of her application for citizenship.
20. As Deputy President Buchanan noted (at paragraphs 10 and 11), the principal submission advanced for Ms Pak relied on her virtually unbroken residence in Australia, that she had completed all her schooling here and had formed close personal ties here. He did not consider those matters amounted to either exceptional or very unusual circumstances.
21. It is not hard to imagine how difficult it could be for Ms Lee if she had to leave Australia and make a new home in South Korea. Her relatively poor proficiency in the language would almost certainly disadvantage her in education and, in all likelihood, future employment but they are consequences of the effluxion of time.
22. As the language of the Act and the Instructions make clear, citizenship is not conferred lightly. It is relevant that there is nothing pressing about Ms Lee’s circumstances at present. She is not facing significant hardship or disadvantage as defined in the Instructions. She is not at risk of removal from Australia and there is nothing to suggest that she cannot continue to live here and apply for permanent residence and, if successful, for citizenship. That is not to suggest that she must have exhausted all other options before her application could be approved but it underlines the absence of anything unusual or exceptional about her circumstances.
23. I am unable to find anything unusual or exceptional in Ms Lee’s circumstances that mean her application should be approved. I affirm the decision under review.
I certify that the 23 preceding paragraphs are a
true copy of the reasons for the decision
herein of Senior Member Jill TooheySigned: ....[sgd].............................................................................
Diana Weston AssociateDate of Hearing 11 March 2010
Date of Decision 29 March 2010
Representative for the Applicant Mr Christopher Levingston, Christopher Levingston & Associates
Representative for the Respondent: Mr Greg Johnson, DLA Phillips Fox
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