Australian Citizenship Act 2007: ss 21, 24

Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24; (1986) 10 ALN N109; (1986) 66 ALR 299; (1986) 60 ALJR 560; [1986] HCA 40

Re Drake and Minister for Immigration and Ethnic Affairs (No 2) [1979] AATA 179; (1979) 2 ALD 634

Re Pak and Department of Immigration and Citizenship [2010] AATA 157

Re Youm and Minister for Immigration and Citizenship [2010] AATA 158

Re Paul and Minister for Immigration and Citizenship [2009] AATA 97

Re Baddage and Minister for Immigration and Citizenship [2009] AATA 392

Re Choi and Minister for Immigration and Citizenship (2008) 104 ALD 117; [2008] AATA 726

Re Raisani and Minister for Immigration and Citizenship [2008] AATA 640

Australian Citizenship Instructions, Chapter 5 (in effect 1 July 2009 to 20 September 2009)

1. Yong Sul (Edward) KIM has applied to the Tribunal for a review of a decision of a delegate of the Minister of Immigration and Citizenship to refuse his application for Australian citizenship by conferral. The issue for the Tribunal is whether this is the correct or preferable decision.

1. Mr Kim was born in 1994 in the Republic of Korea where he is a citizen. Mr Kim's parents subsequently separated and, in 2001, at the age of six, he travelled to Australia with his mother and older brother and was granted entry on a Student (Temporary) (Subclass 560) visa. Since then, Mr Kim has remained in Australia on further Schools Sector (Temporary) (Subclass 571) visas and is now aged 15. His current visa expires on 15 March 2011.
2. On 1 May 2009, Mr Kim lodged an application for citizenship by conferral pursuant to s 21(5) of the Australian Citizenship Act 2007 (the Act). The application was refused by a delegate of the Minister on 28 August 2009 on the ground that his circumstances did not meet the relevant policy requirements outlined in the Australian Citizenship Instructions (the Instructions). On 18 September 2009, Mr Kim applied to the Tribunal for a review of this decision.

1. Section 21(1) of the Act provides that a person may make an application to the Minister to become an Australian citizen, and s 21(5) states:

(5) A person is eligible to become an Australian citizen if the Minister is satisfied that the person:

• (a) is aged under 18 at the time the person made the application; and
• (b) is a permanent resident:

  • (i) at the time the person made the application; and

  • (ii) at the time of the Minister's decision on the application.

1. The power to approve, or to refuse to approve, a person becoming an Australian citizen is set out in s 24 of the Act, which provides relevantly:

(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) or (7).

1. Section 24(2) does not state the factors that may be taken into account when refusing to grant citizenship, and the discretion of the decision-maker is therefore similarly unconfined (see Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40; (1986) 162 CLR 24 per Mason J at 40).
2. The Government has, however, developed policy in the form of the Instructions to provide guidance to decision-makers. The introduction to the Instructions states that their role is:

... to support the Australian Citizenship Act 2007. The instructions provide guidance on policy in relation to the interpretation of, and the exercise of powers under, the Act and the Regulations. Decision makers should be mindful that policy must not be applied inflexibly. Policy cannot constrain the exercise of delegated powers under the Act.

1. Decision-makers should generally apply policy such as the Instructions unless the policy is unlawful or its application produces an unjust result in the circumstances of a particular case: Re Drake and Minister for Immigration and Ethnic Affairs (No 2) [1979] AATA 179; (1979) 2 ALD 634. I am not satisfied that there is any good reason why the Instructions should not be followed in the present case.
2. The Instructions specify criteria for determining citizenship applications. The Instructions in effect at the time of the original decision on 28 August 2009 stated relevantly:

Person aged under 18 years (s 21(5))

... The discretion in s 24(2) to refuse to approve an applicant becoming an Australian citizen despite being eligible under s 21(5) would usually be exercised where the applicant does not meet the policy requirements. In making a decision whether to refuse or approve an application, the primary considerations that need to be taken into account are the best interests of the child and the policy requirements set out below.

Best interests of the child

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.

POLICY REQUIREMENTS

...

Applicants under the age of 16

A child aged less than 16 years can make an individual application in their own right (by applying on a form that contains no other application) or on the same form and at the same time as a responsible parent. This is set out in s 46(2A).

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:

• 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, and 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 an unaccompanied humanitarian minor who is a ward of the Minister and the Minister's delegate has consented to the application, see Wards of the Minister.

...

Other requirements which must be satisfied relating to identity, national security, offences and former citizens are set out in Minister's decision (s 24).

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.

Guidance on whether it may be reasonable to consider a particular set of circumstances as exceptional can be obtained from National Office through the Citizenship Help Desk.

...

1. The Instructions set out above relevantly identify two primary considerations to be taken into account by the decision-maker: the best interests of the child and the policy requirements. Where the policy requirements are not met, the decision-maker must also consider whether the application should, nevertheless, be approved because of the very unusual or exceptional nature of the circumstances.
2. Mr Kim concedes that he does not satisfy the policy requirements because he is not a permanent resident and does not satisfy the residence requirements set out in s 22. The issues before the Tribunal are, therefore, the best interests of the child and whether there are very unusual or exceptional circumstances in his case.

1. Mr Kim provided a statement dated 12 October 2009 and gave evidence at the hearing. He was born in Korea after his parents returned there from Australia. He remained in Korea until the age of six when, following his parents' separation, he came to Australia in January 2001 with his mother and older brother. Since then, Mr Kim has lived in Australia and attended school here although he has visited Korea on four occasions, most recently in 2008 for two weeks. Mr Kim's parents' families are in Korea, as is his father with whom he maintains regular contact. When speaking with his father on the phone, Mr Kim tries to speak to him in English because Mr Kim's Korean is "a bit mixed up". At home in Australia, he speaks to his mother in English and Korean, including words from each language. Mr Kim stated that the basic Korean he learned in school until the age of six has now faded from his memory, "leaving me with a broken up style of talking and no understanding of Korean reading". He does not remember much from the first six years of his life in Korea and no longer has any friends there.
2. Mr Kim is currently enrolled in Year 10 at St Luke's Grammar School in Dee Why. He said he excels at sport, representing his school and his local community in tennis and AFL. At school, he has done particularly well in maths and science, and he is interested in pursuing a career as a scientist or perhaps as an engineer. Mr Kim said he has had no difficulty in his schooling arising from his status as an international student (although his parents pay additional fees for him as an international student) or in travelling to and from Australia. Even if these proceedings are unsuccessful, he plans to stay in Australia and continue studying on a student visa.
3. Mr Kim stated that he does not feel any different from his Australian friends who were born here. He said Australia has encouraged him to pursue the things he is a good at and promises to help him achieve a pleasing future. He believes he would be at an enormous disadvantage now if he had to resume his studies in Korea and sees only a "miserable future" there. He wants to spend the rest of his life in Australia.

1. Mr Levingston, for Mr Kim, said there is no suggestion that if Mr Kim is denied citizenship, he would be unable to continue to study in Australia. The "only real prejudice" suffered as a result of his being an international student is having to pay additional fees. However, Mr Kim has lived and studied in Australia for nine years now and only has a hazy recollection of his first six years in Korea. His primary identification is with Australia. His connection with Korea has eroded with the effluxion of time and as his connection with Australia has strengthened. The majority of his formative years have been spent in Australia. Mr Kim's evidence indicates that he is doing well at school and in his sport, he has an extensive network of friends and acquaintances and wants to make Australia his home.
2. Mr Levingston noted Mr Kim's evidence that his Korean language skills are poor. Mr Levingston referred to a statement dated 12 October 2009 from Dr Seong-Chul Shin, Convenor and Senior Lecturer in the Korean Studies Program at the University of NSW. Dr Shin assessed Mr Kim's Korean language proficiency as follows:

This student's Korean language skills remain at the very low level. Especially his written language skills (both reading and writing skills) are significantly problematic, staying at the Year 1 level at best in the Korean school system ...

1. Ms Hooper, for the Minister, submitted that Dr Shin's statement should be accorded no weight because he appears to have assumed that if Mr Kim's application is denied, he will have to return to Korea, which is not the case. Mr Kim's current student visa will not expire until 15 March 2011 and there is nothing to suggest that he will not be able to obtain another student visa to enable him to continue his studies in Australia when his current visa expires. Thus, Ms Hooper contended that if Mr Kim's application is refused, it will have no impact on his situation. The primary consideration of the best interests of the child should therefore be treated as a neutral consideration.
2. With regard to Mr Kim's circumstances, Ms Hooper submitted that his position is the same as that of any other international student and his circumstances are not exceptional or very unusual.

1. As stated above, the issues before the Tribunal are whether the primary consideration of the best interests of the child favours the grant of Australian citizenship to Mr Kim and whether there are very unusual or exceptional circumstances in his case. There is no dispute that he does not meet the policy requirements by reason of his not being a permanent resident.
2. Mr Kim, who is aged 15, has been in Australia for nine years and is currently in Year 10 at high school. During those years, he has held a succession of student visas enabling him to study and live in Australia. There is no evidence to suggest that when his current student visa expires on 15 March 2011 he will not be able to obtain a further visa or visas to continue his studies in Australia. Thus, Mr Kim's education will not be affected by a refusal of citizenship although, as an international student, he will have to continue to pay higher fees as his parents have done on his behalf during the years he has attended school in Australia. There is no evidence to indicate that they will not be able to continue to do so.
3. Having lived in Australia for nine years from a relatively young age, it is not surprising that Mr Kim has become acculturated into the Australian community and wishes to remain here permanently, and that his ties with the Korean community have eroded. Similarly, while Mr Kim has become proficient in English, his Korean language skills have not developed as would normally be expected of a student in Korea. I note Dr Shin's assessment of his Korean language skills, especially his written language skills, as remaining at a very low level, staying at the Year 1 level at best in the Korean school system. I accept that it is therefore probably in Mr Kim's best interests to continue with his education in Australia. However, there is no evidence that refusal of his citizenship application will prevent this or that his best interests will be adversely affected by the refusal of his application for citizenship.
4. With regard to whether Mr Kim's circumstances are very unusual or exceptional, I accept that he has studied in Australia for longer than many other international students and, as a result, may have become more acculturated and attached to the Australian way of life. The parties referred to a number of recent Tribunal decisions in which applications for citizenship by students who are not permanent residents have been considered and whether their circumstances are very unusual or exceptional: for example, Re Pak and Department of Immigration and Citizenship [2010] AATA 157 (Pak); Re Youm and Minister for Immigration and Citizenship [2010] AATA 158; Re Paul and Minister for Immigration and Citizenship [2009] AATA 97; Re Baddage and Minister for Immigration and Citizenship [2009] AATA 392; Re Choi and Minister for Immigration and Citizenship [2008] AATA 726; (2008) 104 ALD 117; Re Raisani and Minister for Immigration and Citizenship [2008] AATA 640.
5. In Pak, at [10], Justice Buchanan said, and I agree, that the fact that a student has spent a lengthy period studying in Australia, has formed close personal ties here and is sincere in wishing to become an Australian citizen does not amount to either exceptional or very unusual circumstances. Indeed, in my view such circumstances are not 'unusual' in the sense of the ordinary meaning of the word, something which is 'uncommon'. It would not be considered unusual for students who have spent some years studying in a country other than that of their citizenship, and who have become acculturated into that community, to wish to remain there where to do so is perceived to be beneficial.
6. The only material factual difference between Mr Kim's circumstances and those of the applicant in Pak is that there the applicant was a little older and only applied for citizenship on the day before her 18th birthday. She had completed both her primary and secondary education in Australia and had enrolled in a tertiary course at Macquarie University. As Justice Buchanan pointed out, refusal of citizenship at this stage does not shut the door on a person later achieving permanent residency if the relevant requirements are met and, ultimately, in the future, being granted citizenship.
7. Thus, in my view Mr Kim's circumstances are not very unusual or exceptional and do not warrant approval of his citizenship application without the normal policy requirements being met.
8. In conclusion, Mr Kim does not currently meet the policy requirements, there is no evidence that his best interests will be adversely affected by a refusal of his application for citizenship, and his circumstances are not, in my view, very unusual or exceptional. Thus, the decision to not approve his application for citizenship should be affirmed.

I certify that the 27 preceding paragraphs are a true copy of the reasons for the decision herein of Mr RP Handley, Deputy President

Signed: ........[sgd]..................................................................

Applicant representative: Mr C Levingston, Christopher Levingston & Associates

Respondent representative: Ms K Hooper, DLA Phillips Fox