SINGH and MINISTER FOR IMMIGRATION AND CITIZENSHIP
[2010] AATA 643
•26 August 2010
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2010] AATA 643
ADMINISTRATIVE APPEALS TRIBUNAL )
) No 2008/3669
GENERAL ADMINISTRATIVE DIVISION ) Re AMRITVEER SINGH Applicant
And
MINISTER FOR IMMIGRATION AND CITIZENSHIP
Respondent
DECISION
Tribunal Ms Regina Perton, Member Date26 August 2010
PlaceMelbourne
Decision
The Tribunal affirms the decision under review.
(sgd) Regina Perton
Member
CITIZENSHIP - applicant aged under 16 years at time of application – whether citizenship should be conferred on the applicant despite applicant not holding a permanent resident visa – policy considerations – exceptional circumstances - significant hardship or disadvantage if applicant unable to remain in Australia – decision affirmed
Australian Citizenship Act 2007 s 21(5), 24, 46(2A)
Australian Citizenship Instructions Chapter 5, Attachment B
Drake v Minister for Immigration and Ethnic Affairs (No.2) (1979) 2 ALD 634
Re SNMX and Minister for Immigration and Citizenship [2009] AATA 539
Re Paul and Minister for Immigration and Citizenship [2010] AATA 411
REASONS FOR DECISION
26 August 2010 Ms Regina Perton, Member 1. Amritveer Singh was born in Australia in March 2006. His parents, Indian citizens, travelled to Australia from the Philippines in October 2005 on visitor visas valid for three months. In November 2005 Master Singh’s parents lodged applications to stay in Australia which have been unsuccessful. After his birth, Master Singh was also included in their applications. Master Singh and his parents remain in Australia on Bridging A visas. Neither Master Singh nor his parents have held a permanent visa.
2. On 28 May 2008 Master Singh, then aged 2 years, applied for Australian citizenship. A delegate of the Minister for Immigration and Citizenship (the Minister) refused the application on 22 July 2008. On 8 August 2008 Master Singh lodged an application for review with this Tribunal.
3. Section 21(5) of the Australian Citizenship Act 2007 (the Act) allows the Minister to confer Australian citizenship on persons who are less than 18 years old when they apply for citizenship. At the time of Master Singh’s application for citizenship, it was not mandatory for a person of his age to be a permanent resident to be granted citizenship. Subsequent amendments to the Act now set a pre-requisite of permanent residence for applicants under 18 years of age.
4. The issue for the Tribunal is whether Master Singh’s circumstances warrant the conferral of Australian citizenship.
RELEVANT LEGISLATION AND POLICY
5. Section 21 of the Act, as it was at the time of Master Singh’s application, set out the eligibility requirements for persons seeking Australian citizenship. For adults, these included permanent residence, a basic knowledge of English and being of good character. Section 21(5) of the Act applied to persons under 18 years:
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.
6. Section 24 of the Act provides:
(1)If a person makes an application under section 21, the Minister must, by writing, approve or refuse to approve the person becoming an Australian citizen.
(1A)The Minister must not approve the person becoming an Australian citizen unless the person is eligible to become an Australian citizen under subsection 21(2), (3), (4), (5), (6), (7) or (8).
(2)The Minister may refuse to approve the person becoming an Australian citizen despite the person being eligible to become an Australian citizen under subsection 21(2), (3), (4), (5), (6), (7) or (8).
7. The Minister for Immigration and Citizenship (the Minister) issued policy guidelines in relation to such applications. Chapter 5 of the Australian Citizenship Instructions (the guidelines) provides guidance relating to Citizenship by Conferral in s 21 of the Act. The Tribunal is required to have regard to the guidelines unless there are cogent reasons for not doing so (Drake v Minister for Immigration and Ethnic Affairs (No.2) (1979) 2 ALD 634). The Tribunal finds it is appropriate to have regard to those guidelines.
8. The current guidelines reflect the amendments to the Act that set a pre-requisite of permanent residence for the conferral of citizenship. The parties submitted, and the Tribunal concurs, that the appropriate guidelines are those which were in place at the time of Master Singh’s application on 28 May 2008. The policy relating to those aged under 16 years applying for citizenship is set out as follows:
Children under the age of 16 applying individually in their own right would usually be approved if they:
• hold a permanent visa, including an adoption visa; and
•are under the age 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, and living with a responsible parent, who is not an Australian citizen and consents to the application, and the child would otherwise suffer hardship or disadvantage (refer to Attachment B - for definition); or
•are under 16 years of age when applying, and in the care of another person, such as relative who consents to the application, and the child would otherwise suffer significant hardship or disadvantage; or
•are an unaccompanied humanitarian minor who is a ward of the Minister and the Minister’s delegate has consented to the application.…
…
In the case of an applicant who does not meet the policy requirements above, decision makers must consider the full circumstances of the case 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.
9. Attachment B to Chapter 5 of the guidelines refers to the definition of significant hardship or disadvantage in the Macquarie Concise Dictionary and Collins Concise English Dictionary, Australian Edition:
·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 and policy requirements.
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 Higher Education Loan Programme (HELP) for their student contribution or tuition fee. Further information is available from the Department of Education, Science and Training at makers 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.
10. Both parties submitted that although the guidelines do not mention the United Nations Convention on the Rights of the Child, it is appropriate that the Tribunal consider the best interests of the child. Previous decisions of the Tribunal have held that it was appropriate to do so (for example, Re SNMX and Minister for Immigration and Citizenship [2009] AATA 539 and Re Paul and Minister for Immigration and Citizenship [2010] AATA 411). The Tribunal accepts that this is a relevant consideration.
Master Singh’s circumstances
11. Master Singh lives with his parents, Jasbir Singh and Hardip Kaur Dhaliwal, in Griffith. Master Singh has an older sister, now aged nine years, who lives with her grandparents in India and attends school there. His parents and sister lived in the Philippines before coming to Australia.
12. Jasbir Singh provided written and oral evidence. He is a farm worker as is his wife. He, his wife and son have lived in the same location for the past four years. Master Singh was born at the Griffith Base Hospital. Mr Singh and his wife have been unsuccessful in obtaining permanent residence. Mr Singh said that he realises that the granting of citizenship to his son will not entitle him or his wife to remain in Australia. He said that it would be better for his son to remain in Australia than return to India with them. He said that he had permanent residence in the Philippines but that may now have lapsed. He said that he is fearful of returning to the Philippines because of fear of kidnapping of his children and other criminal action experienced by Indian business people there. He said that it was that fear that led them in 2005 to take their daughter, who was born in the Philippines in 2000, back to India and for them to come to Australia.
13. Mr Singh confirmed that his son has not yet started school. Master Singh has been on the waiting list for a local kindergarten since September 2009 and at the time of the hearing was at the top of the list. A letter dated 14 May 2010 from Heather Gowing, Director of the Griffith Pre-School Kindergarten, confirmed that. Mr Singh had told her that his son was learning English through playing with friends and mixing with their Australian friends. When his parents are working, Master Singh stays with the lady next door. Mr Singh said that he is keen for his son and daughter to be fluent in both English and Punjabi. His daughter is learning English at a private school in India but he is not really happy with her level of proficiency. He expressed the view that his son would not attain a satisfactory standard in English if educated in India.
14. Mr Singh said that he and his wife have given a great deal of thought to what would happen to their son if he was granted citizenship but they were not allowed to stay in Australia. He expressed the view that it would be better for his son to remain in Australia despite the heartache it would cause his parents. Neither Mr Singh nor his wife has relatives in Australia. Their families are spread around the world. Mr Singh’s parents and two brothers live in India and a sister is in Belgium. His two brothers are married and live in the same household as their parents and Mr Singh’s daughter. His father owns a farm but is now retired. Mr Singh does not believe he could work on the small family farm and that he would have to find other employment. He expressed concern about his ability, and that of his wife, to obtain work in India. He also stated that he currently sends money for his daughter to attend a private school a few kilometres from their village and said that he did not know if he would earn sufficient money in India to enable both his children to attend that school.
15. Mr Singh stated that if he and his wife were required to leave Australia, they would leave Master Singh with close friends who live near Berri in South Australia. He said that Manjit Singh and his wife have offered to care for Master Singh. Mr Singh said he had known Manjit Singh for many years, describing him as a foster brother of his father. Mr Singh said that when they have a break from work in Griffith, they travel to Manjit Singh’s farm for a rest. He said that they see Manjit Singh three or four times a year. He said that Master Singh enjoys the farm and gets on well with Manjit Singh and his wife.
16. Mr Singh stated that one of his major concerns is his son's health. He said that although his son looks well, he suffers from asthma and eczema. He stated that ointment is regularly applied to his son’s skin. Master Singh’s conditions are stable at present but their general practitioner had advised that his allergies could worsen if he were exposed to high levels of pollution such as exist in the Philippines and India. He said she had also told them that Master Singh should avoid a humid climate in order to ensure that his eczema is not aggravated.
17. Mr Singh said that if his son obtained citizenship, they will bring him to Manjit Singh’s home before they leave Australia and leave him there for gradually increasing periods of time before they leave him there permanently.
18. Hardip Kaur Dhaliwal, Master Singh's mother, provided written and oral evidence. She said that she had married Mr Singh in 1999. It was an arranged marriage. Ms Dhaliwal said that her son is a happy child. She said that he has suffered from dry skin and rashes since birth. She is concerned that the pollution in India and inferior medical and other facilities may impact on him. She expressed the view that her son would not have as good a future in India as he would have in Australia. She misses her daughter. However, the work opportunities in Australia have meant that they are better able to provide for their daughter financially and give her better opportunities for schooling in India. She is concerned that this would not be possible if they were to return to India. She expressed doubts that she would be able to obtain work in India. Her daughter originally lived with her maternal grandparents but after Ms Dhaliwal’s mother’s death, she is now being cared for by her paternal grandparents. Both families come from the same region in India.
19. Ms Dhaliwal stated her husband could not provide for both of his children to attend schools in India that teach both English and Punjabi and it is only by learning both languages that the children will have a good future. She stated that good friends of the family have kindly offered to take care of her son if he was granted Australian citizenship and they have to return to India temporarily. She expressed the hope that they would be reunited with their son if he was able to sponsor them back on parent visas. She stated that while she would obviously miss her son, his future was more important to her than her emotions. She conceded that her son had not spent time with Manjit Singh and his wife without his parents there. However, they intended to gradually prepare her son to live with them without her and her husband if he was granted citizenship.
20. Manjit Singh provided a written statement dated 1 March 2010. He confirmed that he and his wife are willing to look after Master Singh if he is granted Australian citizenship but his parents are required to leave Australia. Manjit Singh is aged 60 and lives with his 55 year old wife on their farm/vineyard near Berri. His three children are now adults and living in Adelaide where they work and/or study. He and his wife live alone. Manjit Singh indicated he is in good health. His wife is on a pension due to a back problem but otherwise well. Manjit Singh stated that his house has three bedrooms and is located on 27 acres so there is plenty of space for Master Singh.
21. Manjit Singh stated that he has known Master Singh's grandfather for more than 35 years. At the time of his statement he had met Master Singh on four occasions. Master Singh and his parents had visited him and his wife at their home. Manjit Singh and his wife have also travelled to Griffith where they visited Master Singh and his parents.
22. Manjit Singh stated that he and his wife visit the nearby gurdwara each Saturday. Master Singh would accompany them if staying with them. He could attend the local primary school and then high school in Berri. Manjit Singh indicated his children had gone to those schools and he believed they were very good. He indicated there were other children in the area with whom Master Singh could play. He stated that he and his wife have sufficient funds to meet Master Singh's financial needs.
23. In his oral evidence, Manjit Singh indicated that he met up with Master Singh and his parents four or five times in a year. Sometimes, during quiet work periods, they would travel from Griffith and stay on Manjit Singh’s farm. Manjit Singh also travelled to Griffith at least once a year for its annual Sikh Games. Manjit Singh said that when Master Singh is on the farm, he is very interested in the tractors, sheds and the like and asks lots of questions. His wife also helps Master Singh’s mother to bathe him and does the indoor housework. Manjit Singh, his wife and their visitors go shopping together, visiting friends and the like. Manjit Singh said that he visits India once a year after harvest, in February or March. He has lived in Australia since 1989. Manjit Singh reiterated his willingness, and that of his wife, to care for Master Singh.
24. Dr Marion Reeves, in a letter dated 27 March 2009, indicated that Master Singh had been her patient since his birth in March 2006. Dr Reeves stated he suffers from asthma and eczema which are well controlled with medication. She indicated that Master Singh's asthma could be severe if exposed to environmental pollutants, dust or animals. She indicated that the climate in Griffith and the lack of pollution helped him maintain control. She stated that if Master Singh was to return to India or other humid climates it would be detrimental to his health.
25. In her oral evidence, Dr Reeves stated that Master Singh’s eczema had been severe at times. She said that Master Singh’s eczema fluctuates. Dr Reeves said that while eczema is not a severe illness, it can have a significant impact on a small child when it flares up. She described Master Singh’s asthma as mild to occasionally moderate. Dr Reeves said that Master Singh’s eczema is now well controlled. She said that the two conditions from which Master Singh suffers are related and are aggravated by the same triggers. The triggers can be pollens, dust mites, pollution or humidity. She said that a change of climate can impact on the asthma. Dr Reeves said that she does not claim to have knowledge of the specific conditions in India or what the impact on Master Singh would be. She said her main concern is the impact of pollution.
26. Under cross-examination, Dr Reeves said that Master Singh’s asthma is relatively well-controlled. The asthma flares when the eczema does. The treatment for asthma is use of ventolin but there is no record of a prescription for some time. She said her records indicate that Master Singh had an episode when away from Griffith. Dr Reeves said that it is very dry in Griffith but she does not know what it is like in his parents’ home region in India. She said that some children acclimatize well, others not, it depends on the allergen. Dr Reeves said that Master Singh is too young to be put through tests. She said if there was a change of climate, she would recommend he take preventative medication and then be re-evaluated.
27. Dr Reeves said that eczema is mostly triggered when a child is hot and sweaty. It can also be aggravated by dust, dust mites, animals and sometimes food. She reiterated that his parents are managing the child’s conditions with creams and emollients. She said that the conditions from which Master Singh suffers sometimes dissipate as children age.
28. Michael Kruger-Davis, a psychologist, prepared a written report on 11 March 2009. He indicated that both parents accompanied Master Singh to the interview. Mr Kruger-Davis described them as well adjusted and loving parents. Mr Singh told Mr Kruger-Davis that he wanted his son to stay in Australia so he could have a good quality of life. Mr Kruger-Davis tested Master Singh with age and language appropriate tests. He commented that:
Amritveer appeared to be developing with normal and age-appropriate functioning. He showed age appropriate ways of dealing with stress when his needs were thwarted. His functioning appears to be age-appropriate or above. There is likely to be no impediment to his ability to learn or function as a member of the community.
29. In oral evidence Mr Kruger-Davis said that he had only once met Master Singh prior to the preparation of his report. He confirmed that Master Singh performed at an age appropriate level. Mr Kruger-Davis said he chose not to do a verbal assessment due to the language barrier. He described the nature of the tests undertaken. Mr Kruger-Davis said that the purpose behind the testing was to assess whether Master Singh was developing normally and if he was likely to present with problems in the future. Mr Kruger-Davis said that Master Singh was well-behaved, responded to his parents’ directions but was restless towards the end of the process, as was to be expected.
30. Mr Kruger-Davis said that he was not prepared to express a view on whether Master Singh would be better off with his parents or remaining in Australia based on that one interview more than a year earlier.
Should Master Singh be granted citizenship?
31. Mr Hughan, counsel for Master Singh, conceded that as a general rule, it is best for a child to stay with his parents. However, he submitted that there are situations that may arise where the best interests of the child requires separation from the parents.
32. Mr Hughan submitted that Master Singh was born in Australia and has had a peaceful life here. He pointed out that there were health issues to be considered. Even though Master Singh is not suffering from life threatening conditions, his eczema and asthma nonetheless impact significantly on him. He submitted that the child was developing normally and that his parents intend to gradually get him used to staying with Manjit Singh and his wife. He stated that Master Singh’s parents believe that they would be doing what is best for their child by leaving him in Australia when they are required to go off-shore.
33. Mr Hughan submitted that if Master Singh was required to leave Australia with his parents to live in the Philippines, he might become a victim of crime. Mr Singh has expressed concerns about his son’s safety in terms of possible kidnapping. Returning to India would be likely to result in less or little income for the family and poorer educational outcomes for Master Singh. He submitted that it was likely that Master Singh’s health could be detrimentally affected if he moved to India or the Philippines. Mr Hughan also commented that Master Singh had developed friendships in Australia that would be affected if he was unable to stay in Australia.
34. Mr Hughan submitted that the statement in the guidelines that a departure from policy is permitted only in exceptional or very unusual circumstances constitutes an improper attempt to preclude consideration of the unique features and merits of the application. He conceded that none of the provisions set out in the description of what constitutes significant hardship or disadvantage is directly relevant to Master Singh. However, he submitted that Master Singh’s situation is an unusual one. He stated that in the long term Master Singh’s educational, employment and other opportunities and his general welfare are likely to be enhanced if he remains in Australia. He commented that if he is required to reside in another country with his parents, their distress at having to leave Australia and live there would be likely to have an adverse impact on his welfare.
35. Ms Tibell, on behalf of the Minister, submitted that policy should be followed in this matter. She stated that policy requirements were not met in this case. She stated that the circumstances in this case were not particularly unusual and it would not be unjust to follow policy. Ms Tibell stated that the relevant matters to consider included Master Singh’s connection to Australia, his best interests and whether the situation was unusual.
36. Ms Tibell submitted that it was not in the child’s best interests to be away from his parents. Master Singh is four years old and has not started school yet. He is bilingual but speaks Punjabi with his parents. He has not been separated from his parents for any significant period to date. It is uncertain if, or when, his parents would qualify for a visa in future. Section 48 of the Act requires the parents to leave Australia as they are ineligible to apply for an onshore visa. Ms Tibell submitted that while Manjit Singh and Master Singh’s parents were good friends and spent some months each year together, Manjit Singh has not undertaken the primary caregiver role in relation to Master Singh as yet.
37. Ms Tibell submitted that while the parents may prefer the Australian education system, there was no evidence given that Master Singh would be unable to attend school in India or the Philippines or be denied the opportunity to learn English in those countries. Ms Tibell stated that there was no independent evidence that the quality of teaching in India would be worse than that in Australia.
38. In relation to Master Singh’s health, she submitted that the comments that his health may deteriorate if he leaves Australia be given little weight as there was minimal evidence that this would occur provided proper control measures were taken.
39. Ms Tibell distinguished this case from SNMX. In SNMX, the child who was granted citizenship was being primarily cared for by the grandmother. The child was in a familiar environment and separation from the grandmother was likely to cause the child distress. However, in this matter, the child would be leaving his parents who are his only relatives in Australia and would be cared for by friends of his parents whom he knew. However they have not been his primary caregivers. She also distinguished this case from Paul where the child was 10 years old, had been educated in Australia and whose parents suffered from significant disabilities. She distinguished other cases where citizenship had been granted to someone under 18 years of age from this one.
40. The guidelines set out the circumstances in which a person under 16 years of age who applies for citizenship would usually be approved. The usual criteria include permanent residence for a defined period of time. Master Singh has not held a permanent visa so he can only be considered under the policy guidelines.
41. Master Singh is obviously unable to give evidence on his own behalf. Therefore his parents’ submissions and evidence and those of other witnesses must be relied on. The Tribunal understands his parents’ wish to give their son opportunities that they have not had or believe will be inferior elsewhere. The parents have lived in Australia for almost five years and have indicated that they prefer life here to that in the country of their citizenship. They sought but did not obtain refugee status. However, it is Master Singh’s situation that is relevant for the purposes of a citizenship application.
42. The Tribunal is satisfied that Master Singh may suffer some disadvantage if he is not granted citizenship. It is uncertain what opportunities he will have if he returns to his country of current citizenship. His parents have expressed pessimism about the standard of education he will receive if he leaves Australia. They have also expressed concern about the impact on his health if he lives in a different environment. They are also concerned about their ability to earn income at an appropriate level in India or the Philippines.
43. The Tribunal notes the policy guideline which states that the onus is on the applicant to provide the evidence to support the application. There was limited evidence that Master Singh’s health will deteriorate if he leaves Australia. His doctor suggested that his eczema and asthma may worsen in a humid climate or in a polluted environment but was unable to predict that this would happen. She conceded that the conditions from which he suffers sometimes dissipate as children age. Master Singh has always been cared for by his parents. While he has an established relationship with Manjit Singh and his wife, they have not taken on the primary carer role to date. It is unclear how Master Singh will react if his parents leave him with Manjit Singh and his wife and he does not see them for a lengthy period. Mr Kruger-Davis was not prepared to give an opinion on the likely impact on this child if his parents leave him behind when they are required to leave Australia.
44. In terms of education in India or the Philippines, there is no evidence that Master Singh will not get a good education if he lives in either of these countries. His parents may well have a preference for the Australian system but that would be classified as a personal want on their behalf for him rather than a personal need. The guidelines suggest that decision makers must be mindful of the difference between personal needs and personal wants. The Tribunal notes that there are many children who are born in Australia who are not entitled to remain when their parents are required to leave. Legislation has been in place for almost a quarter of a century enforcing that view. Furthermore, as indicated earlier, there have now been amendments to the Act that close the limited opportunity that exists in this case.
45. The Tribunal is not satisfied that it would be in Master Singh’s best interests to be separated from his parents. It is not satisfied on the basis of the evidence presented that Master Singh will not be able to access suitable medical treatment or be deprived of opportunities for education if he does not attain Australian citizenship. There is also no evidence that his parents will be unable to provide for him in another country. In terms of Master Singh’s circumstances, the Tribunal does not have evidence to demonstrate that his circumstances are of an exceptional nature.
46. The Tribunal is not satisfied that it should exercise discretion to grant Australian citizenship outside relevant policy.
DECISION
47. The Tribunal affirms the decision under review.
I certify that the forty-seven [47] preceding paragraphs are a true copy of the reasons for the decision of:
Regina Perton, Member
(sgd): Leah Berardi
Clerk
Date of hearing: 20 May 2010
Date of decision: 26 August 2010
Counsel for applicant: Mr G Hughan
Solicitor for respondent: Ms A Tibell, Clayton Utz
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