Han and Minister for Immigration and Citizenship [2010] AATA 731 (27 September 2010)

Last Updated: 27 September 2010

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2010] AATA 731

ADMINISTRATIVE APPEALS TRIBUNAL )

) No 2010/1247

GENERAL ADMINISTRATIVE DIVISION		)
	Re		Ju Young Han

Applicant

And

Minister for Immigration and Citizenship

Respondent

DECISION

Tribunal

Senior Member Jill Toohey

Date 27 September 2010

Place Sydney

Decision

The decision under review is affirmed.

................[sgd]..............................
Senior Member

CATCHWORDS – outstayed student visa - bridging visa – application for Australian citizenship – applicant aged 17 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

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

Kim and Minister for Immigration and Citizenship [2010] AATA (citation)

Re Zlatanovki and Minister for Immigration and Citizenship (2010) 114 ALD 452; [2010] AATA 243

REASONS FOR DECISION

27 September 2010	Senior Member Jill Toohey
Background

1. Ju Young Han was born in South Korea on 9 February 1991. In June 2003, she and her sister came to Australia to visit relatives. On that occasion she stayed for one month. She returned in June 2006 on a student visa, when she was 15, and completed her secondary schooling here.
2. Ms Han’s student visa expired in March 2008. For reasons which are not clear, she did not realise this for some six months. When she applied for a further student visa, she found she was precluded because she had not applied before the expiry of her first visa. She was granted a bridging visa which enabled her to complete her schooling. She has since been granted further bridging visas.
3. On 25 September 2008, Ms Han applied for Australian citizenship. She was 17 years old at the time. On 10 March 2010, a delegate of the Minister for Immigration and Citizenship (the Minister) refused her application. She seeks review of that decision.

The legislation

4. Section 20 of the Australian Citizenship Act 2007 (the Act) provides that a person becomes an Australian citizen if the Minister, under s 24(1), so approves. The eligibility requirements are set out in s 21.
5. The Minister must, in writing, approve or refuse an application for citizenship: s 24(1). The Minister must not approve an application unless a person is eligible to become an Australian citizen under one of subsections 21(2) to (8). Even if a person is so eligible, the Minister retains the discretion to refuse the application: s 24 (2).
6. The Act gives no guidance as to how the discretion to refuse an application for citizenship is to be exercised. 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).
7. There is no dispute that, following Re Drake and Minister for Immigration and Ethnic Affairs (No 2) [1979] AATA 179; (1979) 2 ALD 634, the Tribunal should apply the Instructions unless there are cogent reasons not to do so.

The issues

8. I have to decide whether to exercise the discretion in s 24(2) of the Act to refuse Ms Han’s application.
9. A preliminary question is raised on behalf of Ms Han as to whether the Instructions are ultra vires.

The Australian Citizenship Instructions 2007

10. At the time of Ms Han’s application, all that the Act specified in relation to a person who was under 18 was that the Minister be satisfied that the person was in fact under 18 at the time of application: s 21(5).
11. The Instructions as they applied to Ms Han at the time of her application stated:

Children aged 16 years and over an under the age of 18 would usually be approved under s 24 if they meet the following policy requirements:

• is a permanent resident
• satisfies the residence requirements
• the applicant need not meet the residence requirements if this would cause significant hardship or disadvantage. See Attachment B - Significant hardship or disadvantage for guidance
• understands the nature of an application
• possesses a basic knowledge of the English language
• has an adequate knowledge of the responsibilities and privileges of Australian citizenship at the time of decision
• is likely to reside or continue to reside, or maintain a close and continuing relationship with Australia

...

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.

12. The Instructions rely on the Macquarie Concise Dictionary for 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

and state that people would normally be required to show 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;
• 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 are available only to an Australian citizen, to the extent that it causes significant hardship.

13. On behalf of Ms Han it was contended that the Instructions are ultra vires because they go beyond merely aiding interpretation and seek to fetter the discretion of the decision-maker by prescribing, rather than guiding, how the discretion is to be exercised.
14. I do not accept that contention. Policy can lawfully go well beyond a mere aid to interpretation. As Brennan J set out in Re Drake (above) at 640-641:

Of course, a policy must be consistent with the statute. It must allow the Minister to take into account the relevant circumstances, it must not require him to take into account irrelevant circumstances, and it must not serve a purpose foreign to the purpose for which the discretionary power was created. A policy which contravenes these criteria would be inconsistent with the statute... Also, it would be inconsistent with ss 12 and 13 of the Migration Act if the Minister's policy sought to preclude consideration of relevant arguments running counter to an adopted policy which might be reasonably advanced in particular cases. The discretions reposed in the Minister by these sections cannot be exercised according to broad and binding rules (as some discretions may be...). The Minister must decide each of the cases... on its merits. His discretion cannot be so truncated by a policy as to preclude consideration of the merits of specified classes of cases. A fetter of that kind would be objectionable, even though it were adopted by the Minister on his own initiative. A Minister's policy, formed for the purposes of [the Act], must leave him free to consider the unique circumstances of each case, and no part of a lawful policy can determine in advance the decision which the Minister will make in the circumstances of a given case.

That is not to deny the lawfulness of adopting an appropriate policy which guides but does not control the making of decisions, a policy which is informative of the standards and values which the Minister usually applies. There is a distinction between an unlawful policy which creates a fetter purporting to limit the range of discretion conferred by a statute, and a lawful policy which leaves the range of discretion intact while guiding the exercise of the power...

15. The language of the Instructions is clear that the policy is not to be applied inflexibly; each application is to be considered on its merits. Nothing about the language of the policy is prescriptive as contended. The decision-maker is specifically instructed to consider the full circumstances of the case to determine whether, notwithstanding failing to meet the policy guidelines, the application should be approved because of the unusual nature of its circumstances.
16. I note that the Tribunal, differently constituted, has reached this same conclusion in other cases: Kim and Minister for Immigration and Citizenship [2010] AATA 640; Re Zlatanovki and Minister for Immigration and Citizenship (2010) 114 ALD 452; [2010] AATA 243.

Evidence and submissions

17. Ms Han concedes that she does not meet the residency requirements in the policy. She also concedes that, now that she is 19, her best interests as a child no longer have any bearing on her application.
18. Ms Han wishes to remain in Australia to complete her education. She is currently completing a one-year course in childhood studies and hopes to continue her study at Macquarie University. She hopes eventually to become a teacher.
19. Ms Han could pursue university studies in South Korea, but only after completing her secondary education there, in effect repeating three years of her high school education. It was submitted on her behalf that this requirement of itself was sufficiently unusual to warrant granting her application. However, apart from any other consideration, there is no evidence before the Tribunal to show that South Korea is unusual in imposing such a requirement.
20. Ms Han’s parents and sister live in South Korea. They communicate by telephone and email, and she communicates with friends in the same way; all their communications are in Korean. Although it was contended in written submissions that she would face difficulty studying in South Korea because of her lack of language skills, Ms Han was frank in her oral evidence that she would face no such difficulty. She was equally frank in conceding that she applied for citizenship after she found she could not obtain a further student visa.
21. From the information before the Tribunal, it appears that a bridging visa is the only kind of visa available to Ms Han. Her current visa will likely expire once she has exhausted her rights of review. Whether any further application would succeed cannot be known at this stage. It appears that she could apply for a student visa from South Korea, although she might be subject to an exclusion period because she outstayed her first student visa.

Consideration

22. Taking all of Ms Han’s circumstances into account, I am not satisfied that they are so unusual that her application should be granted despite her failure to meet the normal policy requirements.
23. Ms Han has been in Australia for a relatively short time, since the age of 15, and it cannot be said that she has spent the majority of her formative years here. Her immediate family, with whom she maintains contact, is in South Korea, and she still has friends there. She has retained her Korean language. I accept that she does not wish to return to South Korea but there is nothing to suggest that she would face significant hardship or disadvantage other than that any tertiary studies would be delayed while she completes her secondary schooling again.
24. I am satisfied that Ms Han’s application should be refused.

Decision

25. I affirm the decision under review.
    

I certify that the 25 preceding paragraphs are a

true copy of the reasons for the decision

herein of Senior Member Jill Toohey

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

Diana Weston Associate

Date of Hearing 14 September 2010
Date of Decision 27 September 2010

Representative for the Applicant Mr David Gu, Christopher Levingston & Associates

Representative for the Respondent Mr Greg Johnson, DLA Phillips Fox