SNMX and Minister for Immigration and Citizenship [2009] AATA 539 (21 July 2009)

Last Updated: 21 July 2009

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2009] AATA 539

ADMINISTRATIVE APPEALS TRIBUNAL )

) No 2007/5997

GENERAL ADMINISTRATIVE DIVISION		)
	Re		SNMX

Applicant

And

MINISTER FOR IMMIGRATION AND CITIZENSHIP

Respondent

DECISION

Tribunal

Mr John Handley, Senior Member

Date 21 July 2009

Place Melbourne

Decision

The decision under review is set aside and in substitution IT IS DECIDED the applicant be granted citizenship by conferral.

(Sgd) John Handley
Senior Member

CITIZENSHIP - application for citizenship by conferral – applicant 3 years of age at application – presently 5 years - parents refused protection visas – policy considered and whether ultra vires the Act – best interests of the child – applicant born in Australia – consideration of familial, social welfare, medical, educational, economic, language, developmental and security issues – decision set aside

Australian Citizenship Act 2007 (Cth) s 21(5), s 22, s 24 and s 52(1)(b)

Migration Act 1958 (Cth) s 417

Australian Citizenship Act (Cth) 1948 s 10

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

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

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

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

Shi v Migration Agents Registration Authority [2008] HCA 31

REASONS FOR DECISION

21 July 2009

Mr John Handley, Senior Member

1. The applicant, is a five year old boy, who was born in Australia and was denied citizenship by conferral. The application was made by his father on 27 June 2007 and supported by a written consent of his mother (both relying on the provisions of s 21(5) of the Australian Citizenship Act 2007 (the Act). The application was refused because a delegate of the Minister decided not to exercise the discretion under s 22(6)(b) of the Act. This application is a review of that decision.
2. The applicant has spent the whole of his life in Australia. Both parents have been denied protection visas by decisions made by the Refugee Review Tribunal (RRT). Applications made to the Minister pursuant to s 417 of the Migration Act 1958 (Migration Act) to reverse those decisions were unsuccessful.
3. Having regard to some of the evidence heard in this review and to the decisions of the RRT which were received into evidence, an Order has been made pursuant to s 35(2)(aa) of the Administrative Appeals Tribunal Act 1975 probhibiting the publication of the names of the applicant and his parents, both of whom gave evidence.
4. Birth in Australia does not necessarily entitle a person to have the status as an Australian citizen. That benefit existed by s 10 of the Australian Citizenship Act 1948 (the 1948 Act) but was denied by later amendments with effect from 26 November 1984.
5. Section 21 of the Act is in the following terms:

21 Application and eligibility for citizenship

(1) A person may make an application to the Minister to become an Australian citizen.
Note 1:Subsections (2) to (8) deal with eligibility.
Note 2:Section 46 sets out application requirements (which may include the payment of a fee).
General eligibility
(2) A person is eligible to become an Australian citizen if the Minister is satisfied that the person:

(a) is aged 18 or over 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; and
(c) satisfies the residence requirement (see section 22), or has completed relevant defence service (see section 23), at the time the person made the application; and
(d) understands the nature of an application under subsection (1); and
(e) possesses a basic knowledge of the English language; and
(f) has an adequate knowledge of Australia and of the responsibilities and privileges of Australian citizenship; and
(g) is likely to reside, or to continue to reside, in Australia or to maintain a close and continuing association with Australia if the application were to be approved; and
(h) is of good character at the time of the Minister’s decision on the application.

(2A) Paragraphs (2)(d), (e) and (f) are taken to be satisfied if and only if the Minister is satisfied that the person has, before making the application:

(a) sat a test approved in a determination under section 23A; and
(b) successfully completed that test (worked out in accordance with that determination).
Permanent physical or mental incapacity

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

(a) is aged 18 or over 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; and
(c) satisfies the residence requirement (see section 22), or has completed relevant defence service (see section 23), at the time the person made the application; and
(d) has a permanent physical or mental incapacity, at the time the person made the application, that means the person is not capable of understanding the nature of the application at that time; and
(e) is likely to reside, or to continue to reside, in Australia or to maintain a close and continuing association with Australia if the application were to be approved; and
(f) is of good character at the time of the Minister’s decision on the application.
Person aged 60 or over or has hearing, speech or sight impairment

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

(a) is:
(i) aged 60 or over at the time the person made the application; or
(ii) aged 18 or over at the time the person made the application and is suffering from a permanent loss or substantial impairment of hearing, speech or sight at that time; 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; and
(c) understands the nature of the application at the time the person made the application; and
(d) satisfies the residence requirement (see section 22), or has completed relevant defence service (see section 23), at the time the person made the application; and
(e) is likely to reside, or to continue to reside, in Australia or to maintain a close and continuing association with Australia if the application were to be approved; and
(f) is of good character at the time of the Minister’s decision on the application.
Person aged under 18

(5) 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.

Person born to former Australian citizen

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

(a) the person was born outside Australia; and
(b) a parent of the person was not an Australian citizen at the time of the person’s birth; and
(c) the parent had ceased to be an Australian citizen under section 17 of the old Act (about dual citizenship) before that time; and
(d) if the person is aged 18 or over at the time the person made the application—the person is of good character at the time of the Minister’s decision on the application.
Person born in Papua

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

(a) the person was born in Papua before 16 September 1975; and
(b) a parent of the person was born in Australia (within the meaning of this Act at the time the person made the application); and
(c) the parent was an Australian citizen at the time of the person’s birth; and
(d) the person is of good character at the time of the Minister’s decision on the application.
Statelessness

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

(a) the person was born in Australia; and
(b) the person:
(i) is not a national of any country; and
(ii) is not a citizen of any country; and
(c) the person has:
(i) never been a national of any country; and
(ii) never been a citizen of any country; and
(d) the person:
(i) is not entitled to acquire the nationality of a foreign country; and
(ii) is not entitled to acquire the citizenship of a foreign country.

6. Despite the application being made only under s 21(5) of the Act, the whole of this section is recited above because of a considerable attack made by the applicant's representative, Professor Rubenstein on a policy of the Minister (refer later) which was applied when deciding to refuse citizenship.
7. Whilst eligibility for citizenship is to be found within the provisions of s 21 of the Act, the decision ultimately is made by the Minister by a discretion available to him under s 24(2) of the Act. If citizenship has been refused (as has occurred in the present proceedings), the jurisdiction of this Tribunal to review that decision is enlivened by s 52(1)(b) of the Act. (The reference by the delegate to s 22(6)(b) of the Act is, I think, an error. The recommendation to the delegate, by the primary decision-maker, referred, correctly, to s 21(5) (T-docs p5).
8. The policy of the respondent (pages 8 and 9 of T-documents) with respect to s 21(5) of the Act records that applicant's under the age of 16 years would usually be approved if they
   • Hold a permanent visa including an adoption visa; and
   • Are under the age of 16 years when applying, are living with a responsible parent, who is an Australian citizen and consents to the application; or
   • Under 16 years of age when applying and living with a responsible parent who is not an Australian citizen and consents to the application or would otherwise suffer hardship or disadvantage (refer to Attachment B for definition).
   • 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 would otherwise suffer significant hardship or disadvantage; or

. . . .

9. The fourth dot point in the above part of the policy refers to suffering from significant hardship or disadvantage and it is the definition of that phenomenon which is reproduced at Attachment B. The third dot point above refers to the suffering of hardship or disadvantage without it being qualified as significant. The third dot point applies because the applicant was living with his parents at the date of the application.
10. The remainder of the policy concludes that whilst decision-makers must assess applications on their merits, policy is not to be applied inflexibly and it must be applied unless there are special circumstances that would warrant consideration outside the policy. It also records that evidence of significant hardship and disadvantage is required . . . . with appropriate supporting documentation to demonstrate how they meet the legal and policy requirements.
11. In the decision made by a delegate of the Minister (pages 4 and 5) it was recorded that under the policy the applicant is expected to be a permanent resident. There is a reference to the reasons why the applicant's parents left Sri Lanka in 2003 and their unsuccessful attempts to obtain protection visas. There is a reference also to the extensive treatment undertaken by the applicant's mother from Professor Sundram, a treating psychiatrist. But relevantly, the decision concludes that the applicant's parents are not Australian citizens or permanent residents and they had not satisfied departmental decision-makers that they should be recognised under the Migration Act 1958 as qualifying for refugee status rather than being returned to Sri Lanka. Accordingly I find the application has not identified that the applicant will suffer significant hardship or disadvantage if not approved for citizenship and that he should continue to hold the same status as his parents. The recommendation of the primary decision-maker to the delegate of the Minister stated that there were no exceptional and compelling circumstances in this case which warrant consideration of this application outside of the policy provisions discussed above.
12. Professor Rubenstein drew attention to the many references in both the policy and in the decision to the expectation of permanent residency of the applicant, the need to establish significant hardship or disadvantage, and the requirement for there to be exceptional and compelling circumstances which would warrant the grant of citizenship. It was submitted that the policy was unlawful and inconsistent with the objectives of the legislation, no less because whilst many of the remaining parts of s 21 of the Act referred to a requirement of permanent residency either of an applicant or of a parent or of some other circumstances, no such qualification applies to applications made under s 21(5) of the Act.
13. I will return to this issue later but at the outset it needs to be recorded that administrative review is a hearing de novo. I had the benefit of hearing from many witnesses, reading a number of documents and listening to the submissions of competent counsel all of which were not available to the decision-maker. The evidence, the documents and the submissions were not available to the decision-maker. Administrative review requires the Tribunal to reach its own decision upon the relevant material including any new, fresh, additional or different material that had been received by the Tribunal as relevant to its decision (refer Kirby J, Shi v Migration Agents Registration Authority [2008] HCA 31 at 37 – Shi).
14. Mr Gray on behalf of the Minister acknowledged that s 21(5) of the Act does not of itself provide a fetter to the exercise of the discretion which must ultimately be exercised by the Minister under s 24(2) of the Act but that is not to say that the Minister is not entitled to be guided by the policy and the objective and scope of the Act. He referred to decisions of the Tribunal where the policy applying with respect to the previous legislation was considered (Re Raisani and Another and Minister for Immigration and Citizenship [2008] AATA 640 and Re Choi and Minister for Immigration and Citizenship [2008] AATA 726). Whilst acknowledging that the Tribunal is not bound by the doctrine of precedent, it was submitted that the Members respectively in the above Tribunal decisions considered issues of permanent residency, hardship, disadvantage, connection to Australia and other circumstances (similar to the concepts found within the current policy) when exercising the discretion which they were compelled to do as de novo decision-makers.
15. It was submitted that whilst hardship or disadvantage might be occasioned to the applicant in the event that he is required to travel to Sri Lanka, those concepts did not concern the potential of his parents having to be returned to Sri Lanka. In anticipation that a grant of citizenship to the applicant might facilitate his parents being permitted to stay in Australia, considerations of that type were submitted as being within the province of the migration legislation only and beyond the scope of this review. Accordingly it was submitted that the decision-maker was correct in not giving those issues any weight and that approach was consistent with the conclusions of the Tribunal in Re Raisani.
16. In concluding the preliminary submissions it was acknowledged by Mr Gray that the best interests of the applicant, he being an infant, should be a primary consideration in this review.

THE FATHER OF THE APPLICANT (THE FATHER)

17. The father of the applicant gave evidence in these proceedings when the hearing commenced in December 2008 and again in March 2009 when it resumed. He also lodged two witness statements which were completed as Statutory Declarations both of which were received into evidence.
18. On the first day of hearing the father said that the applicant participated in a local play group on Mondays and Fridays, he attended a pre-school at the YMCA on Thursdays and on other weekdays he attends a pre-school group at a local library. On Sundays he is engaged in activities at a local church. He said the applicant was registered at a local kindergarten and he would commence attendance in 2009 which he confirmed when the hearing resumed. The father said that the applicant does not speak Sinhalese and all communication with him, and by him, is in the English language.
19. On Saturdays, the father said that all members of his extended family (who are all Australian citizens) comprising his brother and sister and their respective spouses and children all meet and interact the applicant then plays with his cousins. . On Sunday, the applicant participates in church activities with other extended family members. Additionally, the father said that the applicant had a very close relationship with his mother. Until approximately July or August 2008, the father, his wife and the applicant lived with the father's mother at her house (the grandmother). Private accommodation has subsequently been found by him and his wife. He said that the applicant would often sleep with his grandmother who continues to visit or contact him daily since they had moved away. He said the applicant sometimes telephones his grandmother and asks when she is coming to visit him. He described the attachment between them as unbelievable.
20. The father acknowledged that if the applicant does obtain a grant of citizenship it would not follow that he and his wife would be permitted to stay in Australia. He acknowledged that an opportunity might exist for them to remain in Australia by sponsorship but he also understood there was no guarantee that would be approved. In the event that the applicant remains in Australia as a citizen and he and his wife return to Sri Lanka, he said that the applicant would live with his grandmother. He said I don't want my son to face any troubles. So in that event I will leave him here.
21. In the event that the applicant's application was unsuccessful, and he did travel to Sri Lanka, his father said that he would have difficulty obtaining suitable schooling. He said there were some English language schools in Sri Lanka but it would be expensive to enrol the applicant in such a school and he could not afford to do so. He also said that the majority of schools were Buddhist whereas the applicant was of the Christian faith. He said Christian schools were very few. It is about one per cent. In the event that the applicant could not be enrolled in a Christian school or an English speaking school, he said he has to change his religion and be enrolled in a Buddhist school where Christian religion is taught as a subject.
22. In cross-examination, the father confirmed that he was presently 38 years of age. His father was living in Sri Lanka but it was learnt after the hearing concluded that he had died following a long illness. His mother and father were separated (but it is assumed for the purposes of these proceedings that his parents were divorced because the father's mother subsequently remarried). The father said that he also has a brother living in Sri Lanka but with whom he has no contact. He said that his brother holds the rank of Major in the Sri Lankan Army and was presently engaged in conflict on the Jaffna Peninsula where he resides in military accommodation with his family.
23. The father said that his mother came to Australia some years ago and has subsequently obtained Australian citizenship. She subsequently remarried but her husband has died.
24. The father and mother of the applicant were married in January 1996 in Sri Lanka. The father said that his mother was unable to attend his wedding and he subsequently travelled to Australia with his wife on Visitor visas. They returned to Sri Lanka and he returned to Australia alone on a Visitor visa in January 1998. He returned in April 1998 but came back to Australia in June 1998 to care for his step father who was ill. An application was made for a Carer's visa but that was denied because whilst that application was being processed his step father died. The father returned to Sri Lanka in March 2000 and returned in May 2000 because his mother was ill following the death of her husband. An application was made for a visa to permit him to stay as the carer of his mother but that was rejected in October 2002. He said that his mother had been unwell suffering from depression, diabetes, high blood pressure and elevated cholesterol and there was a period of time when she was admitted to hospital as an inpatient. In 2003 his wife travelled to Australia to care for his mother and he said that she subsequently recovered.
25. In November 2002, the month after the application for Carer's visa was denied, the father made an application for a Protection visa. He said that he first left Sri Lanka in 1998 due to political reasons. He said that he was then self employed repairing motorcycles for the Sri Lankan Army and he had to face problems. He said that when he returned to Sri Lanka in 2000, he faced death threats and at about the time that his Carer visa application in October 2002 was rejected, his wife, who was then in Sri Lanka, faced problems because there was an attempt made to rape her. He said he had no alternative but to make application for refugee status and said that he could not return to Sri Lanka because of being in fear.
26. The father confirmed that at the end of 2004, being the same year that the applicant was born, a Tsunami in Sri Lanka killed many people or caused findings of persons being missing or unable to be located. He said that six members of his wife's family being her parents, two brothers, a sister in law and a child were not ever found and are believed to have been killed. He said that his wife now has no friends in Sri Lanka because she has given up Sri Lanka. Mentally she has given it up because she has numerous problems and she became mentally depressed and she had nothing to do with Sri Lanka. He said that she was now in good order, was enjoying good health and did not want to be reminded about Sri Lanka.
27. The father said that he and his wife discussed the citizenship application on behalf of the applicant. He said that he told her that they may be granted permanent residence to look after him or if that application was rejected they would have to return to Sri Lanka. He said that the applicant is very precious to her, that she does not want to lose her son, that she would prefer to see him living happily in Australia and she will accept anything that is granted to her. He said that she had put the matter in the hands of God. When he was pressed on this issue, the father said that the reason he made an application for citizenship on behalf of the applicant was because he could not take (his) wife and son to Sri Lanka. Later he said I wanted my wife and the son to stay here. He added my wife has a fear that she will have to face danger if she goes to Sri Lanka and at the same time she has a fear that the child will also face danger. So I wanted both of them to be safe. He agreed with the proposition put to him by Mr Gray that the application for citizenship would not have been made unless he thought that it would help his wife's chances of being able to stay in Australia.
28. The father said that in the event that the application is successful and he and his wife are not permitted to remain in Australia any longer, he would make a petition to the Minister having regard to his involvement in a golf club and a cricket club, his membership of the Australian community and his qualifications as a chef. He otherwise does not have any plan which would permit him and his wife to remain in Australia. He understood that there was a long waiting list for parent visas and understood that a Contributory Parent visa could cost between $15,000 and $30,000. He said that his two brothers and sister who are all Australian citizens were a little bit richer and I can ask for them. He said that they would also be able to care for his son in the event that he is permitted to stay but they are required to leave. The father agreed that his son and his grandmother had an intense relationship and, consistent with an opinion of Professor Sundram, a psychiatrist treating the mother, there was reason to fear the psychological impact on the son if there is separation.
29. The father said that his son does not speak Sinhalese. He said at home he and his wife communicate with each other in the Sinhalese language but when they speak with him or when he is in their presence they speak the English language. He said that his wife does have some limited understanding of the English language but she does not speak very much of it. He said the applicant and his cousins speak the English language.
30. The father said that he had not made personal enquiries concerning the availability or access to English language or Christian schools in Sri Lanka. He had made enquiries through the Internet and formed opinions about those schools by reading Sri Lankan newspapers.
31. The father said that in the event that this application was unsuccessful and the applicant was separated from his grandmother, he would be very upset. However, he acknowledged that his mother had visited Sri Lanka from time to time and there would be no prohibition on her entering Sri Lanka to visit him from time to time.
32. The father was recalled to give further evidence when the hearing resumed in March 2009. In the interim he completed a Statutory Declaration declared on 10 February 2009 and received as Exhibit A6.
33. The father was referred to paragraph 8 of his declaration where he described being threatened with death in 1998 in Sri Lanka. He said he reported that episode to police, persons were apprehended and they were convicted and imprisoned. He said that those persons told him to close his motorcycle business (refer statement to police – Exhibit A14). He also declared that less than 12 months ago persons who were armed with rifles broke into the house of one of his brothers in Sri Lanka, threatened his wife and caused damage to items of personal property. Those persons also indicated that they were looking for him and his brother. Subsequently, his brother left Sri Lanka.
34. In evidence the father said that despite the threat to him having occurred more than 10 years ago, he believed that he was under continuing threat. He said that his family has a political background and the Sri Lankan Army was a major client of his motor cycle business (Refer Exhibit A13). Because of that association, he said he was under threat from the LTTE (Liberation Tigers of Tamil Eelam). Police reports with respect to the threat in 1998 were produced into evidence and were also annexed to his refugee application.
35. Initially the father said in evidence that his involvement in the business was not associated with the threat of violence towards him but later in re-examination and in response to some queries raised by me, he said that he was under continuing risk by having the Sri Lankan Army as a customer and the Army being a threat to the LTTE. He also said that he was at risk from members of the United National Party who had a holy relationship with the LTTE. Additionally, he said that a further indication of the threat to which he was exposed was knowledge of his past association with the Sri Lankan Freedom Party, being a political party represented in the Sri Lankan Parliament and which is opposed to the activities of the LTTE and the United National Party. He said that his father, who was a member of the Sri Lankan Parliament and a member of the Sri Lankan Freedom Party, was assaulted in 2001 or 2002 and suffered injuries which resulted in him becoming paralysed.
36. When cross examined by Mr Gray on these matters, the father said that he was pushed and threatened verbally by persons who spoke the Tamil and Sinhalese language. It was for that reason that he understood those persons were members of the LTTE but also acknowledged that the United National Party comprised persons who were Tamil and it may have been that United National Party members or sympathisers were the persons who threatened him. Whilst acknowledging that that episode occurred more than 10 years ago, he was adamant that he remained under threat. He acknowledge that in his evidence to the RRT he had said that the threat made to him was to cease supply of motorcycles to the Army and there was no threat then made with respect to his political affiliations. Nonetheless he said that he later received telephone calls which were in the nature of a threat asking us to stop doing politics.
37. The father said that he had not been threatened by the LTTE since he had lived in Australia but his brother had remained at risk in Sri Lanka, he had closed the business and had migrated to another country. He said he has a continuing fear of returning to Sri Lanka despite the assault in 1998 being more than 10 years ago and having lived (mainly) in Australia subsequently. He said that the LTTE is a guerrilla organisation and even if the war is over that organisation will not be over.
38. Mr Gray then examined the father with respect to statements made to a police station in Sri Lanka completed by two of his brothers on 10 March 2007 and 2 April 2008 where each reported a disturbance at their homes on 8 March 2007 and 20 April 2008 respectively. Each reported that their homes were approached by armed persons believed to be associated with the LTTE by reason of them speaking the Tamil language. On each occasion the offenders were looking for the father. In the statement dated 10 March 2007 there is a reference to the offenders saying that the father should be informed that he should end his connections with the Army or else you will be killed. The statement of 2 April 2008 refers to the offenders seeking the father because of his past association in the motorcycle business which supplied motorcycles to the Sri Lankan Army. In that statement the deponent refers to closing the motorcycle business because of threats from the LTTE and having left Sri Lanka and living in the Middle East. It also refers to the father being subjected to death threats whilst in Sri Lanka during the time that the motorcycle business was operating.
39. The father said that both statements had been forwarded to him by one of his brothers. It was suggested that the statement of 2 April 2008 has a stamp placed on it purporting to identify the police station to whom the complaint was made but the spelling of the town in which the police station is located is incorrect. The other statement does not record the name of the police station where the report was made. It was noted that both statements had been received by him by post from his brother in Sri Lanka prior to the first day of hearing but had not been referred to by him in his evidence nor were they exhibited prior to the third day of evidence, some three months later, when the hearing resumed. The applicant's father was adamant that the police reports were real and dismissed the suggestion that your brothers, or one of them, could have had these made in Sri Lanka on blank sheets and sent them to you to help you.
40. In concluding his evidence the applicant's father said that whilst he was a qualified chef it was unlikely that he would obtain employment of that type in Sri Lanka. It followed that any employment that he obtained would be modest and unqualified and would not permit him to earn sufficient income to support his wife and his applicant son. He said that he was now 38 years of age, had not worked as a chef for more than 10 years and did not know of persons who could help him find employment consistent with his qualifications.
41. Additionally, he said that he would find difficulty locating an appropriate school for his son because children are admitted into government schools based on residency, recommendations from politicians and contributions which was a euphemism for payment of bribes to school principals. The applicant's father said that he had evidence from a Sri Lankan information website and from newspapers which indicated that about 12 or 15 Principals . . . have been nabbed. Accordingly, it was his preference for his son to remain in Australia as a citizen where he could attend a better school without the restrictions that he would face in Sri Lanka.
42. The father was again called to give evidence on the final day of hearing. His evidence was concerned primarily with whether accommodation was available to him and his wife in the event that they were repatriated to Sri Lanka. He said that his mother and father jointly own approximately one acre of land in Kandana which is approximately 14kms from Columbo. He said there are two dwellings on the land. It is presently the subject of legal disputation because a neighbouring land owner had encroached onto approximately a quarter of the land. Despite that he said there was nothing to prevent him and his wife living in one of the two dwellings on the land which is not subject to the dispute but he was reluctant to do so because it was at one of those dwellings were he was threatened in the late 1990s when he was living in Sri Lanka. He said he would not feel safe living on that property and he was scared.

MANEL TURUNEN

43. Mrs Turunen is the grandmother of the applicant and the mother of his father. She is 70 years of age and is an Australian citizen. Save for a period of two weeks when she visited Sri Lanka two years ago she has spent all of the applicant's life with him.
44. Mrs Turunen said that until July or August of 2008, the applicant and his parents lived with her in her rented home in West Footscray. Since the applicant and his parents have obtained their own accommodation, she walks to their house daily and sleeps with the applicant every night. She also spends time with him during each day by watching television or playing games or travelling outside the house to a local park or a local library or to the YMCA. She also attends church with him every Sunday.
45. Mrs Turunen adopted a statement and a Statutory Declaration completed by her and lodged before the commencement of the proceedings. She resiled from paragraph 6 of her statement where she recorded that the applicant speaks Sinhalese and the English language. She said that she could not recall why she had said that save that he addresses his mother as Amma (the Sinhalese word for mother). She said that the applicant understands some Sinhalese words but does not speak them. The only language that he speaks is the English language.
46. Mrs Turunen said that she understood that if the application made by the applicant for citizenship is successful that his parents may be returned to Sri Lanka. She said that she would be willing to look after the applicant and had the capacity to do so. She said that there were no health issues affecting her that would interfere with her care of him and she could also obtain assistance, if needed, from her other adult children who live nearby and who have children of their own who frequently play with the applicant and speak with him in the English language. She also said in the event that the applicant's parents are returned to Sri Lanka that she could visit them with him and obtain a visa which would permit her and him to stay in Sri Lanka for up to one month.
47. In cross-examination, Mrs Turunen said that she separated from her husband in 1986, was divorced shortly thereafter and then travelled to Australia. She subsequently obtained Australian citizenship. She remarried but her second husband became ill and died in 1999.
48. Following the death of her second husband she agreed that she suffered depression for about two years but was benefited by a psychologist that she was seeing at the time. She said she recovered from depression without taking any medication. She agreed that she also suffers from insulin dependent diabetes which is stable, she has not ever been hypoglycaemic nor has she required dialysis. She does not suffer from hypertension and a period of hospitalisation in 2006 occurred because she tripped and fell at home and not because of a fainting episode associated with diabetes.
49. Mrs Turunen said that her other children speak with their respective spouses in Sinhalese but all of their children (her grandchildren) speak English only.
50. She confirmed the evidence that she gave in examination in chief namely, that she is prepared to provide care for the applicant at her own cost. She acknowledged that her only income was Age Pension and suggested that she may also qualify for some other type of Centrelink benefit. She was aware that the applicant or his guardian may be entitled to make application to have his parents return to Australia in the event that his application is successful. Despite such an application having to take many years for processing, she remained firm that she would continue to provide care. She also said that she could be assisted, if needed, by her other children who all live close to her.
51. Subsequent to the first days of hearing in December 2008, Mrs Turunen was recalled upon the resumption in March 2009. She provided a further Statutory Declaration sworn the 11th day of February 2009 and also provided medical reports from her treating general practitioner and endocrinologist who both reported that her diabetes was stable and her insulin intake had reduced (refer Exhibits A11 and A12). She said her depression was controlled and she was like any other normal person.
52. Mrs Turunen confirmed in the event that the applicant's parents were returned to Sri Lanka, she would willing care for the applicant. She said that she has had those discussions with her son and his wife on a number of occasions and they consent to her being the applicant's carer. She is also prepared to provide financial support. In the event that she returns to Sri Lanka with the applicant to visit his parents, her children who reside in Melbourne, would fund the cost of air fares.
53. In cross examination Mrs Turunen said that she visits the applicant every day in his house and sleeps at that house nightly between Mondays and Fridays and sometimes on weekends. She acknowledges that she did not see him as frequently as previously because he now attends school during the day but she walks to his house after school every day and he would ring her every day to ask when she is coming to his house. She said that she also interacts with him on Saturdays and Sundays when all members of the family get together and when they also attend church. She said that the applicant draws pictures of her at school and tells her of things that happen to him during the day when at school. She said she did not distinguish between her relationship with him as his grandmother and a typical relationship of mother and son because isn't it the sort of the same meaning. She said that her relationship with him was like a mother and son because it is very very close. She said that she was in a position as if she had been his mother since he was born because she cared for him whilst his mother was unwell.
54. In terms of travelling to Sri Lanka with the applicant to visit his parents (in the event that they returned), she said such a scenario had not been planned and said that travel of that type would be a possibility. She said it had not been discussed with the applicant's mother and then it was in the nature of a suggestion only with the applicant's father. On balance she thought that it was not a realistic possibility of taking the applicant to Sri Lanka because he would be at risk, that the suggestion of a visit had been put to her son to console him during the time that any visa application was being processed and that the applicant's mother would be very upset at the prospect of separation from the applicant.
55. Mrs Turunen said that her children in Melbourne could forward monies to her son and daughter in law in Sri Lanka to help meet day to day living costs. However, she said that living expenses were very very high. When it was put to her that 3,000 rupees per month would equate with the poverty line she said that quantum of funds would not be enough to purchase groceries and prices had risen in recent times because of the civil war. She agreed that 3,000 rupees equated to approximately $100AUD.
56. Mrs Turunen thought that it would be difficult to enrol the applicant into government schools in Sri Lanka because they are Buddhist in doctrine and the applicant was a Christian. She said that her son and daughter in law could not afford to enrol the applicant into good schools because you have to have a lot of money.

THE MOTHER OF THE APPLICANT (THE MOTHER)

57. The mother is 35 years of age and confirmed that she gave her consent in writing for the applicant to make an application for citizenship. She said on a number of occasions, both in examination in chief and in cross examination, that she understood that the application made by the applicant concerned him only and if his application succeeded it may mean that she and her husband would be separated from him. She said the reason the application was being made was we do everything for his welfare. We can take him and go to Sri Lanka so we want him to stay here for his wellbeing. She explained that she would prefer the applicant to stay in Australia because I want to see that he does not face any problems or any troubles that's why I give my consent. When asked to consider that any separation from the applicant could be for a considerable period, indeed indefinitely, she said that she understood that risk and added how can I take him and make him face all the problems there.
58. The mother said that she anticipated that the applicant would remain in the care either of her husband's mother or one of her husband's brothers who also resides nearby. She was adamant that despite the age of her husband's mother she was very strong and had sufficient income, despite being a pensioner, to meet the applicant's needs.
59. On the fourth day of hearing in March 2009 the mother again gave evidence. She also lodged a Statutory Declaration sworn on 10 February 2009. She said that she was three months pregnant and was expecting another child in August 2009.
60. In her declaration she referred to the Boxing Day Tsunami in Sri Lanka in 2004. She recorded that her parents and two brothers died in it. She acknowledged that she did not have proof of their death because their bodies were not ever located but her knowledge of their disappearance and her belief in their death arises out of advice that she received from her uncle in Sri Lanka who reported the disappearance of her parents and brothers to the police. That information is recorded in a statement made by him to the police in Sri Lanka on 19 February 2005 and received as Exhibit A19.
61. The mother also confirmed that she understood the current status of her husband and herself in Australia will not be altered in the event that her son is granted Australian citizenship.. She acknowledged that she and her husband may be required to return to Sri Lanka and her son may remain in Australia. She recorded in her declaration that if she and her husband are required to return to Sri Lanka they may decide to take their son with them together with her husband's mother so that if we were in immediate danger we could be sure that [son] and [Manel] could fly straight back to Australia. She said that there had not been a discussion with her mother in law but rather her husband and her mother in law spoke about such an event. She was listening to that conversation and understood that her mother in law made the offer to return with the applicant to satisfy her.
62. The mother said that her son had commenced kindergarten in 2009, was enjoying it and was happy and woke up each morning expressing his wish to go to kindy.
63. In cross examination the mother said that she did not expect that her husband's mother would return to Sri Lanka with them. She said that she and her husband were trying to ensure that their son could stay in Australia because we are scared of taking him there. During the examination of her by Mr Gray on the issue of whether the applicant would return to Sri Lanka with or without her mother in law, she was resolute in expressing her wishes that her son remain in Australia. (Refer pages 196 and 197 of Transcript). She confirmed the evidence that she gave at the commencement of the hearing in 2008 namely, that she supported the application for citizenship on his behalf even if it meant being separated from him.
64. The mother confirmed the content of paragraph 4 of her declaration that there was an attempt to sexually assault her in 2002 by male persons. She recorded that those persons were the same persons who had been gaoled in 1998 after assaulting her husband (refer earlier). She said when those persons were released from gaol they starting harassing her. She stayed with her brother (her husband was in Australia at this time) for protection and they set fire to his house. She said they continued to make threats against her husband and they attempted to sexually assault her. She confirmed that there was no other attempt to assault or sexually assault her and she was adamant that the event occurred. She said yes, honestly yes. There is no necessity for me to lie. She acknowledged that the event occurred more than six years ago but when it was suggested that it was unlikely that a similar event would occur, she said . . . but in the future I don't know what is going to happen. Everything is in the hands of God. She acknowledged that the RRT, following the hearing of her application for a protection visa, decided that the attempted sexual assault did not occur. She also understood that in the application made by her husband for a protection visa the RRT (differently constituted) decided that the attempted sexual assault did occur.

ASSOCIATE PROFESSOR CAMPBELL PAUL

65. Dr Paul is a certified Child and Adolescent psychologist and a consultant infant and family psychiatrist to the Royal Children's Hospital in Melbourne. He obtained post graduate qualifications as a psychiatrist in 1986, is a member of a number of professional associations, has held many professional appointments and has spoken and been published widely in Australia and overseas. He assessed the applicant, his parents and grandmother on two occasions in October and November 2008, for one and a half hours on each occasion. He provided a comprehensive report received as Exhibit A16.
66. Dr Paul said that he interacted with the applicant during both interviews. Initially he noted that the applicant was reserved and wary but later became comfortable and he played games with him. He found him to be a happy, cheerful young person. He noted that he wore clothing with spider man and Thomas the Tank Engine motifs. He learnt that the applicant likes to eat pizza, sausages and chocolate and he learnt that he predominantly speaks the English language and mixes with other children who speak the same language. He found that the applicant's speech, language and cognitive skills appear well within the normal range. He appears bright, communicative although initially shy. He appears confident in the presence of his parents and grandmother and relates back to them. He also learnt that the applicant had good relationships with his peers, that he had good relationships with a number of friends at his playschool and was able to relate their names. He thought that the applicant presented as a typical Australian boy having regard to his dress, his demeanour, his play and other identifications. He concluded the applicant has no personal experience of Sri Lanka he identifies himself with his Australian community
67. Dr Paul noted that the applicant had a very powerful and strong relationship with each of his mother and grandmother. He noted that the applicant had a similar degree of contact between both of them even though his parents had moved from the home of his grandmother into their own home. Although he found the applicant to be a robust quite a bright little boy he also found him to be strongly attached to his carers. He thought the applicant would not easily tolerate separation from his family although he also noted that the applicant enjoyed attending his playgroup and kindergarten.
68. Dr Paul said that in the event that the applicant was denied Australian citizenship and was then required to move to Sri Lanka with his parents, he would find it to be a major disruption. He said that the applicant, as an Australian boy, had a network of friends here together with members of his extended family and acquaintances at his church. He said the applicant would have no direct knowledge of and minimal identification with Sri Lanka and leaving family and social and peer networks behind would be distressing and traumatic. He thought the relationships that he had developed would be disrupted suddenly, he would be distressed and traumatised and there would be a significant impact on his carers. He concluded that it would be a disastrous circumstance for him.
69. Dr Paul said that the affect upon the applicant's parents of returning to Sri Lanka in the event that his citizenship application was denied would cause them despair. He noted that the social relationships of the parents in Sri Lanka had been disrupted. He also noted that the family of the applicant's mother had disappeared in the Boxing Day Tsunami and were believed to be dead. He also learnt that the applicant's mother had been disconnected from her own grandparents because of them becoming angry with her when she decided to marry the applicant's father. He concluded without the support of extended family their life would not be worth living. And I think there is a real and credible likelihood that that state of mind would translate into some perpetual state of disaster or equally, possibly some attempt on her own life and perhaps to a lesser degree because he has other connections but a similar state would be there for [the applicant's father].
70. In his report Dr Paul recorded that if the primary carer of a young child suffered significant depression and despair, it was likely that would have a similar impact upon the child as if the care giver were separated from the child. Accordingly in the event that the applicant was made to live with his parents in Sri Lanka it would be as if he had lost several significant relationships; his mother, father and grandmother.
71. Dr Paul said that a number of research projects have examined the consequences of physical and emotional separation of infants and young children from their mothers who have had severe or even moderately severe depression. It was particularly noteworthy that boys were more prone to internalising problems, were inclined to become anxious or depressed or vulnerable to anxiety and depression and were likely to have difficulties at school with learning, attention and behaviour. On balance he thought that in the event that the applicant moved to Sri Lanka with his parents, he would be exposed to the depression and despair of his mother which he thought would be ongoing. Whilst he anticipated that she would be able to care for him it would be without the essential joy and positive affect that would be there in the family as I see it now. He said it would be as if the applicant were living with the ghost of his mother rather than his mother and to some degree the same could be said of the applicant's relationship with his father.
72. In the event that the applicant was granted citizenship but his parents were returned to Sri Lanka, Dr Paul said that the impact upon the applicant would be a Sophie's Choice situation. He thought such a scenario would be a rather inhumane decision having to be determined. In his view the attachment of the applicant to the three major adults in his life, (his mother, father and grandmother), could be described as powerful and strong. He thought that the applicant's attachment to his grandmother might see him manage in the short term, perhaps extending to a few weeks or a few months, if there was regular contact with his parents that he did not find distressing, which he understood was temporary and had knowledge of his parents returning to care for him and be with him. On balance he thought that the applicant could manage given the stability of his grandmother and the relationship he has with her and the extended family, cousins and so forth.
73. In cross examination Dr Paul said that in an optimal situation it would not be in the interests of the applicant to be separated from his parents. He said that any disruption . . . would be against his interests. It was for those reasons that he used the expression Sophie's Choice in his examination in chief because irrespective of the outcome of this review there would be some disruption in his attachment relationships (being relationships with his mother, father and grandmother). The question Dr Paul understood that he was required to answer was what would be the least disruptive option for the applicant?
74. Dr Paul said that he had not expressed an opinion in his report of which attachment relationship between the applicant and his mother, father and grandmother was the stronger. He said that attachment was a complicated phenomenon and involved a number of subtleties involving importance and significance. He noted that the applicant had a strong relationship with each of his mother, father and grandmother. He thought the relationship between the applicant and his mother was an intense primal type of relationship where the applicant felt security and safety. He thought the relationship with his father was also intense where his emotional and social development would be assisted towards looking outwards and relationships with peers. He thought the relationship with his father was a safe base. He thought the relationship with his grandmother involved elements of each of the relationships existing between his mother and his father. Accordingly, he thought that each of the attachments of the applicant to his mother, father and grandmother were equally strong but subtly different in their manifestation and what it means in terms of the child's development.
75. Dr Paul agreed that he could not state as a fact what would be experienced by the applicant's parents in the event that they returned to Sri Lanka - because that event had not occurred. However, based on his experience with other families in similar situations and having regard to his professional qualifications and what he learnt from interviews with the parents and from the reports of Professor Sundram, it was his opinion that the parents, the mother especially, would suffer despair and substantial change of mood. He was reassured of this opinion especially from his interviews and from responses to questions put to the applicant's mother which were given directly and spontaneously.
76. It was noted that Dr Paul referred to the applicant's mother having been raped repeatedly. However on balance and by regard to his notes and the reports of the other medical witness it was understood that that reference was incorrect and did not come from the history obtained in interview.
77. Dr Paul reported that the applicant's father would suffer depression on return to Sri Lanka yet there was no evidence of him having suffered depression in the past nor had it ever been diagnosed. He said that the risk of depression by the applicant's father upon returning to Sri Lanka would be speculative because he had not yet returned but in anticipation that he would be returning to a place where he had been subjected to violence, where he may be in contact with his enemies, where he would be exposed to the depression and distress of his wife in a country where her family had disappeared or died would be a depressing prospect. There was a possibility therefore that the applicant's father could suffer depression in the future. He said that had there been a past diagnosis of depression, his opinion of future depression would be more in the nature of a greater likelihood.
78. Dr Paul was then asked to comment upon the likely response from a lay person to the outcome of separation of a child from his parents compared to separation of a child from his grandmother. The witness said that the response by the lay person would be dependent on the information given. He said

If you said to the lay person this child has got the option of living with his parents who will be severely traumatised, depressed, emotionally unavailable, dislocated, despairing and that's a situation that is likely to persist into the distant future and there is a real credible risk that the child's mother might suicide and the alternative was to live with the grandmother with whom he has grown up with and been extremely attached to as well, I think the lay person would scratch their head and say I really don't know what would be the best . . . but on the other hand if you said you've got an ordinary family, in an ordinary suburb, and you are told that the child has to be taken away from their parents to live with their grandmother, I am sure the lay person would say the child should stay with their parents. [Transcript p211]

79. Although Mr Gray noted the opinions of Dr Paul in his report of the consequences of separation for up to three or four months, he was asked to consider the consequences to the applicant of separation for a minimum of 18 months or up to 10 years. He said with a lot longer time frames I believe the scenarios would be very detrimental to the child. The witness said that separation from his grandmother would also be detrimental particularly in context of living with his parents who are likely to be ongoingly distressed and emotionally unavailable.
80. Dr Paul did not think that visits to Sri Lanka by the applicant with his grandmother would necessarily change the opinions expressed above. He said it might offer some relief for the applicant but he would be left in the day to day care of his very vulnerable parents. Later he added that if the applicant was living in a persistently emotionally depriving threatening insecure context then the visits of the of the grandmother could be equally distressing because he has a caregiver with him, he's had a good relationship, comes and spends a weekend or a week with him and then leaves again and is left bereft and re-traumatised . . . it could be equally a process of re-traumatisation rather than a sort of joyful reunion (Transcript p213). In the alternative, if the child was in a warm containing secure environment, I think the visits of the grandparent could be quite positive and encouraging.
81. In the event that the applicant lived in Sri Lanka with his parents and his grandmother, Dr Paul said it would be a much less onerous outcome than being permanently separated or permanently living in Sri Lanka without the grandmother. So from [the applicant's] perspective that would be a better option. He would have a family who was together and my guess is that his parents would be less despairing and distressed by that option. So in short I guess it would be a better outcome for [the applicant] than separation permanently from either parents or grandmother. (Transcript p215).

PROFESSOR SUNDRAM

82. Professor Sundram is a practising psychiatrist who has been treating the applicant's mother since 2005, initially by reason of the affect upon her of losing her family in the Boxing Day Tsunami of 2004. At that time he found her to be extremely distraught and very fragile in her mental state. He diagnosed her as suffering from a major depressive disorder and treatment was initiated. He regarded the depressive disorder as being moderate to severe and he was on the verge of admitting her as an inpatient to hospital, especially as her mental state deteriorated. Later she suffered further deterioration when she learnt that an application made by her to the RRT was unsuccessful. Professor Sundram then found that the applicant's mother suffered a serious relapse of her depressive illness which was of a severe nature and did require urgent intervention and hospitalisation.
83. Professor Sundram said that the applicant's mother regards the applicant as being her only real true blood relative by reason of having lost her siblings and parents in the Tsunami and she had invested her sense of self in his welfare and in his self. He said that when she became severely depressed she expressed to him that there was no future for her and consequently there would be no future for the applicant and it would be best in those circumstances for both of them to be dead. She expressed the desire to commit infanticide and then suicide.
84. Fortunately those events did not occur and the applicant's mother made some progress. A number of other factors contributed to her improvement being her husband obtaining employment, some financial independence and an improvement in her sense of self esteem. Presently, Professor Sundram was of the opinion that the applicant and the applicant's mother were not at risk.
85. Professor Sundram has travelled to Sri Lanka on a number of occasions subsequent to the Tsunami at the request of the Sri Lankan Consulate in Australia. He has learnt that if women become widowed or who have absent families, their social status within a community is significantly compromised and there is concern about their ability to cope. Accordingly, in the event that the applicant's mother was returned to Sri Lanka, she would have no social status and may be then in a situation where she is destitute and without social support. Additionally Professor Sundram said that he learnt that there were only about 25 or 30 psychiatrists in the whole of Sri Lanka having a population of 20 million persons. He was confident that she would not have access to psychiatric care and she was at risk of relapse, indeed it was his belief that she remained at significant risk of relapse even if she were to remain in Australia.
86. In the event that the applicant did obtain citizenship but his mother was returned to Sri Lanka, Professor Sundram said that if she had the hope or sense of optimism of being able to return here on a parent visa, he thought she would strive to remain as well as possible and to be in a frame of mind where I think the risk of relapse would be less.
87. As an indication of the opinion that he continues to hold of the applicant's mother having a serious psychiatric disorder, Professor Sundram continues to prescribe medication despite the applicant's mother currently being pregnant. He said that it would be preferable for pregnant women not to consume the medication that he is currently prescribing, because of the risk to the developing foetus, however on balance he thought there was a greater risk to her and to the applicant and to the foetus in the absence of medication. Accordingly it was agreed that medication would cease one or two weeks before the anticipated date of delivery in an attempt to ameliorate the possible withdrawal symptoms the babe would otherwise most likely experience. (Refer report 11 February 2009, Exhibit A26). After the birth of the baby, medication would be resumed but the applicant's mother would be encouraged to bottle feed only to reduce the risks of medication being passed to the infant by breast milk.
88. In cross examination Professor Sundram said he wrote his reports with respect to the mental health of the applicant's mother in the belief that these proceedings were considering the consequences of the applicant and his parents remaining as a family in Australia. He said he had not, until recently, considered the consequences of the applicant remaining and his parents returning to Sri Lanka. In his report of 8 September 2008, in the second last paragraph, he referred to the possibility of the applicant remaining in Australia and his mother being repatriated and in those circumstances it was his opinion the intensity of their attachment is such that I would be fearful of the psychological impact upon [the applicant] and the safety of his mother as outlined above. He then reported this is not an issue for this report so will not further elaborate. That paragraph did not appear in a report of 23 September 2008 which was otherwise a facsimile of the report of 8 September 2008. This was the subject of considerable cross examination extending also to the communications received by Professor Sundram from the applicant's solicitors after the report of 8 September 2008 had been received. He explained that he understood that he was asked to prepare a report to discuss two possibilities being, the applicant and his parents remaining in Australia or the applicant and his parents being repatriated to Sri Lanka. He said that he did not understand that he was being asked, when preparing reports, to comment upon the applicant and his parents being separated. It was nonetheless a matter of concern for him and he raised that concern by his first report but did not elaborate because he did not understand that it was a matter for which he was being asked to provide an opinion. He said that he inferred from the communications received from the applicant's solicitors that the second last paragraph of the first report should be deleted, but it did not change his opinion that the possibility of separation was of concern to him. He agreed that separation between the applicant and his mother would have a terrible impact on her. He said that he now understands that there is a possibility that the applicant may be granted citizenship and his parents may be repatriated to Sri Lanka but they may have an opportunity in the future to be reunited with him. He said that possibility changes the whole scenario. He said he understood that a parent visa could be the subject of an application in the event that they are in Sri Lanka but the risk to the applicant's mother was dependent on the period of time between application for a visa of that type and reunion with the applicant. He said in the event that the applicant's mother is repatriated and she was of the belief that she would not be reunited with him for many years, it would have a very negative outcome on her mental health. In the alternative, if she held a belief that a parent visa if issued, would allow her to return to see her son or that he was able to visit her, he thought that she would be reasonably resilient to cope with that. Additionally he thought that a realistic timeframe of the applicant's mother remaining reasonably well with the hope of reunion could be 12 months, 24 months, potentially even a little bit longer.
89. Professor Sundram said that the applicant's mother does find it very difficult to conceptualise being separated from her son and such a possibility would be very traumatic. However, her current mental state and improved social circumstances has allowed her to conceive him being absent for periods of time being a situation that would not have been possible in the first one or two years of treatment. He said that the possibility of the applicant being taken to Sri Lanka to visit his mother by his grandmother had not been raised as a possibility.
90. In re-examination Professor Sundram was asked to clarify and expand the opinion expressed earlier of the consequences to the applicant's mother in the event that she and her husband were repatriated but the applicant remained in Australia. He said his concern would be the belief that she held upon leaving Australia. He said that if she held the belief of there being a possibility of reunion within a period of time that was not unduly long that she would be able to manage such a separation. However, he acknowledged that once she separated from him there will be a grieving process which will kick in and . . . once that grieving process is commenced with the belief that she will eventually at some point be able to see him again then she would be able to tolerate a reasonably lengthy period of time before she was reunited with him. However, if a visa application lodged by her from Sri Lanka was rejected, Professor Sundram said that it would be difficult to predict how she would respond to that in particular if that was after a protracted period of time because she may well, by that time, have grieved for the loss of [the applicant] and in that setting may be able to deal with the loss differently certainly differently to the way she would deal with it if she was repatriated with no prospect of unification (Transcript p249).

SONALI KUMINE

91. Miss Kumine is the sister of the applicant's father. She is married with children and provided a Statutory Declaration of 9 May 2009 which largely refers to the relationship between her family and the applicant and their preparedness to provide financial, emotional and material care and support of the applicant together with support to a similar extent by her mother in the event that he remains in Australia and his parents are repatriated to Sri Lanka.
92. Ms Kumine was called to give evidence with respect to a preparedness expressed by her and her husband to lend money to her brother to meet the cost of Contributory Parent Visas for him, his wife and the expectant child in the event of them returning to Sri Lanka and making application to return. At the hearing the cost of the Contributory Visas was estimated to be in the vicinity of $70,000. Ms Kumine said that she and her husband make regular weekly payments towards their mortgage in excess of the amount expected by the bank and in those circumstances they would have a redraw facility which would permit them to borrow the sum of $70,000.
93. After the hearing concluded the representatives of the parties exchanged a number of items of correspondence with respect to whether Ms Kumine could establish by documentation a capacity to obtain loan funds in the vicinity of $70,000. The applicant's solicitors provided a number of bank statements and payslips. The respondent's solicitors confirmed that the cost of Contributory Parent Visas would be $68,290. On 2 June the applicant's solicitors provided a letter from a bank confirming eligibility – subject to what appears to be typical loan conditions – for a 'top up loan of up to $100,000.

NAYANA BIBILE

94. Ms Bibile is a social anthropologist who grew up in Sri Lanka. She is currently engaged in research concerning refugee issues within Australia but previously has worked as a researcher in Sri Lanka with respect to issues affecting Sri Lankan women.
95. In an email to the solicitors for the applicant of 4 March 2009 (Exhibit A28), Ms Babile referred to the social status of single women in Sri Lanka and the risk that they face from either being ostracised or being vulnerable to harassment including sexual harassment.
96. In evidence she said that the applicant's mother faced significant challenges if she returned to Sri Lanka because of the loss of her immediate family by reason of the Tsunami.
97. Despite being notified that the applicant's mother was married and whether, if she returned to Sri Lanka with her husband, she would suffer the same degree of harassment and isolation she said that the applicant's father had been politically intimidated which she described as a very difficult circumstance in Sri Lanka. She said political intimidation of persons had been existing for 25 years, was presently very very extreme and that would be a further challenge to be faced by the applicant's mother.
98. In cross examination Ms Babile was asked to clarify the contents of her email and the emphasis in her evidence of the applicant's mother being a single female person. She said that she referred to single persons as those who do not live in a relationship of husband and wife or someone who is not living with their family. She said that Sri Lankan women usually live with their family even though they may be aged 40 to 50 years. She said if Sri Lankan women are not married they do not live on their own.
99. I thought this evidence was largely unhelpful. The applicant's mother will not be returning alone to Sri Lanka (if at all) if she is compelled to return, it will be with her husband.

CONCLUSION AND REASONS FOR DECISION

100. As indicated earlier there was considerable attack upon – and defence of – the policy adopted by the Minister's delegates in the making of the decision which is under review by these proceedings.
101. It is useful in the circumstances to revisit the decision of Brennan J in Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634 where His Honour extensively discussed the value in making policy and the reasons for application of it by administrative decision-makers. Some of the most salient issues raised by His Honour may be summarised as follows:
     • Differing standards and perceptions will influence the making of a decision but inconsistency in decision-making is inelegant and may bring the process into disrepute (p639).
     • Inconsistency can be alleviated by a policy which will guide (but not control) the Minister in the exercise of a statutory discretion (p640 and 641).
     • Policy will focus attention on the purpose of exercising the discretion, it will give integrity to decision-making, it will reduce inconsistency and promote fairness and satisfaction in the administrative process (p640).
     • The policy must be consistent with the statute creating the discretion; it must not require consideration of a foreign purpose; a discretion should not be precluded by policy of consideration of the unique features and merits of each application (p640 and 641).
     • A Tribunal is free to apply or not apply policy (its duty is to make the correct or preferable decision) but departure from policy should be approached cautiously and it would be imprudent to override policy especially if it has been scrutinized by Parliament (p644).
     • Lawful policy should be applied unless there are cogent reasons to the contrary for example application of a policy causing an injustice (p644 and 645).

His Honour decided that an injustice for the purposes of the Migration Act applying at the time of the review in Re Drake was a disproportion between the detriment suffered by the affect of a deportation order and the benefit that might reasonably be expected by affirmation of the order.

102. It is worth noting – before this discussion continues – that the Act does not contain any provision similar to s 499 of the Migration Act 1958 which permits the Minister to publish a Direction compelling decision-makers – and Tribunals – to comply with matters which must be considered in the exercise of a discretion. Direction 21 issued under s 499 which applied before 15 June 2009 has been revoked and from that date Direction No 41 has issued. Additionally it is also worth noting that a Legislative Instrument has not been issued under the Act giving guidance or compelling attention to the manner in which a discretion should be exercised or the matters which should be taken into account when exercising a discretion.
103. The decision in this application was made under s 21(5) of the Act and in its entirety it says

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.

104. Unlike the other sub-sections within s 21 where eligibility for citizenship depends on age, permanent residency, engagement in defence service, understanding the English language, comprehending responsibilities as Australian citizens, whether there is a likelihood of continuing to reside in Australia and good character, the only qualification under sub-section (5) for eligibility is the Minister being satisfied that the person is under the age of 18 years at the time of application. Indeed the absence of the word may, commonly signifying that a discretion is available is absent from the sub-section. So far as s 21(5) is concerned, persons under the age of 18 at the time of application are eligible to become an Australian citizen. The relevance of discretion applies within the provisions of s 24(2) of the Act which provides that the Minister may refuse approval of a person becoming an Australian citizen despite eligibility under sub-section (5). It is presumed that the policy found at pages 8-9 and 16-19 have been published to guide the Minister in the exercise of the discretion under s 24(2).
105. It is worth noting at this stage that the primary decision-maker who recommended refusal of the application decided that she was not satisfied the applicant meets the requirements of paragraph 21(5) of the Act. That conclusion is wrong. The only requirement of that sub-section is age under 18 years which the applicant clearly satisfies.
106. The policy directs decision-makers to assess applications on their merits and not to apply policy inflexibly. Nonetheless it directs that the policy must be applied unless there are special circumstances that would warrant consideration outside that policy. It records that evidence of significant hardship and disadvantage is required . . . to demonstrate how they meet the legal and policy requirements. Additionally the policy records that applicants under the age of 16 would usually be approved if they hold a permanent visa (that is a visa entitling permanent residency) and (relevantly) are living with a responsible parent who is not an Australian citizen, who consents to the application and who would otherwise suffer hardship or disadvantage. That part then refers to Attachment B but it contains a definition of significant hardship and disadvantage. The applicable part of the policy does not require the qualification significant (refer paragraph 9 earlier).
107. The Minister's delegate decided to reject the application by reference to s 22(6)(b) of the Act. It is relevant to persons who have been in Australia for 12 months before an application for citizenship is made (s 22(1)(c)). Permanent residency will be deemed for those persons if it can be demonstrated that significant hardship or disadvantage would be suffered. No such consequence was found by the delegate.
108. I think this is an important finding because of the expectation by the Policy of permanent residency yet the policy, in the case of applicants who are living with their parents in Australia do not need to demonstrate hardship or disadvantage which is significant. That qualification only applies to applicants who are in the care of other persons.
109. I am not satisfied, despite the inconsistency between the Policy and s 22(6)(b) that it applies, in any event. That subsection is only relevant to persons identified under s 22(1)(c) who are deemed to be permanent residents for 12 months before application but the whole of s 22(1) – by the conjunctive and at the conclusion of sub paragraphs (a) and (b) – identifies such persons as having been lawfully present in Australia for four years before application. The applicant was three years of age at the date of application.
110. Additionally the decision made by the primary decision-maker and (also adopted by the Minister's delegate) concluded that there were no exceptional and compelling circumstances which would warrant consideration of the application outside the policy, yet the policy itself does not have any such qualification upon an applicant's circumstances. The policy requires the circumstance to be special in order to permit consideration beyond the policy ambit.
111. In so far as residency is concerned the decision-maker notes that neither of the applicant's parents are Australian citizens or hold status as permanent residents and who were unable to satisfy departmental decision-makers that they should qualify for refugee status under the Migration Act. The decision-maker then concluded accordingly I find the application has not identified that the applicant will suffer significant hardship or disadvantage if not approved for citizenship and that he should continue to hold the same status as his parents.
112. The statement immediately above points to, in my view, an improper conclusion which is inconsistent with the policy and which has caused a conclusion which is factually incorrect. It is true that the applicant's parents did not qualify for refugee status and whilst they continue to reside in Australia they are not Australian citizens. It does not follow – by application of the Migration Act – that by reason of the applicant's parents not having established themselves as having the status of a refugee that the applicant will not suffer hardship or disadvantage if his application is not approved for citizenship. Additionally that statement is qualified by the concluding statement which I think is largely meaningless namely, and that he should continue to hold the same status as his parents. The applicant was born in Australia. He cannot ever have the same status as his parents being persons who hold Bridging Visas having been refused refugee status and consequently not qualifying for protection visas. How that statement can be relevant to the decision under review is beyond my comprehension and I do not understand how the conclusions with respect to the status of the parents, the application of the Migration Act and an unsupported finding that the applicant would not suffer significant hardship or disadvantage has in any way reasonably advanced or reasonably explained the decision made by the Minister's delegate.
113. In the case of applicants under s 21(5) few persons would have any objection to the Minister within his policy having regard to the period of residence in Australia prior to the making of an application. Regard could reasonably be had also to the connection of the person with Australia, the domicile of the applicant's parents and the consequences in broad terms to an application being rejected. But the decision under review exhibits little regard to the unique circumstances of this applicant – he (now) being a five year old boy who was born in Australia and who has lived the entirety of his life in Australia. Additionally, the policy compels decision-makers to assess each application on its merits but it would appear that that requirement is not reflected in the decision under review. The finding by the primary decision-maker that there were no exceptional and compelling circumstances is a conclusion which in my view is beyond power and has no basis in policy.
114. I acknowledge that departure from policy – especially if it has been scrutinized by Parliament – would be imprudent but the application of it with respect to applications under s 21(5) to the circumstances of this applicant – and I do again emphasise his unique circumstances – would be an injustice. A fetter has been imposed upon s 21(5) which is beyond power and in many respects, beyond the Policy.
115. I would with respect acknowledge that the decision-makers did not have available to them the volume nor quality of evidence that was available during this review indeed the factual material which was available (refer T-document page 3) was very limited. This review is not concerned with whether the decision-maker made the correct or preferable decision on the material then available but rather it is concerned with the making of the correct and preferable decision on the material before the Tribunal at the time of the review (refer Shi at paragraph 14).
116. Despite being born in Australia, the applicant is a citizen of Sir Lanka, by force of the nationality and citizenship of his parents (refer Certificate of Registration of Birth – Exhibit 29 and s 5 of the Citizenship Act of Sri Lanka - Exhibit A31). Section 21 of that Act also provides that citizenship of another country, either by voluntary application or by operation of law shall cause citizenship of Sri Lanka to cease. This is a consequence known to the applicant's parents. They are also aware that he may later apply to Sri Lanka for citizenship under s 21(2) of its Act and by force of it and the Australian Citizenship Act, he may again be denied citizenship. However, Counsel for the applicant submitted that she and her instructing solicitors would advise against duality because any travel to Sri Lanka by the applicant – if he was a citizen of Australia – would give him the protection of the Australian Consulate (Transcript p278). I understand this submission to mean that he would be more secure holding the citizenship only of Australia.
117. I am conscious that it is the applicant's parents who by their prosecution of the application on behalf of their infant son may cause him to lose the nationality that they currently hold. Loss of a person's nationality is not insignificant, no less when parents are agitating that outcome on behalf of an infant child. But it is an outcome that they pursued also conscious that they are at risk of becoming separated from him should his application succeed. That risk was advanced to demonstrate their commitment of attempting to secure an outcome that was in his best interests, that is, citizenship of Australia.

CONSIDERATION OF THE ISSUES

118. During the closing submissions, both Counsel referred to a decision of the Tribunal in Re Paul and Minister for Immigration and Citizenship [2009] AATA 97 decided on 13 February 2009 (Paul).
119. From that decision it would appear –
     • the infant applicant was denied citizenship by conferral by a decision of a delegate made on 14 June 2008 (paragraph 2);
     • revised Citizenship Instructions (the Policy) came into effect from July 2008 (paragraph 5);
     • the Member presiding in Paul found that Policy is identical in all relevant respects to the Policy applied when the decision was made (paragraph 5);
     • parts of the present Policy upon which the Member relied was reproduced (paragraph 6).
120. The Policy post July 2008 is similar but it is not identical. It does compel decision-makers to consider whether there are exceptional circumstances of an application, unlike the 2007 Policy (refer paragraph 110 and 113 earlier). It also requires demonstration of significant hardship or disadvantage to persons under the age of 16 irrespective of whether they are in the care of a parent or another person, unlike the distinction appearing in the 2007 Policy (refer paragraph 108 earlier).
121. The Policy reproduced at pages 6 and 7 of the T-documents was in force at the time the delegate made the decision under review. I have had regard to it in these Reasons. There was no submission to follow the 2008 Policy and in law, the applicant surely has an accrued right to have his application determined by the Policy in force when and upon which this application was decided. Additionally, I respectfully disagree with the conclusion reached at paragraph 84 of Paul, namely, holding a permanent visa is central to the scheme of the Act. Permanent residence – with respect to s 21 – only applies to applications under ss (2), (3) and (4). It is not relevant to the remaining subsections and specifically it has no relevance to ss (5). My concern about its inclusion in the Policy and the application of it is recorded earlier.
122. One of the most overwhelming features of this application is the applicant's age. He was born on 14 June 2004 and is presently five years of age. He was born in Australia and has not ever lived elsewhere.
123. Counsel for the applicant submitted that the United Nations Convention on the Rights of the Child (the Convention) has application and Australia must act consistently with its obligations under that convention. It was submitted that the best interests of the child shall be a primary consideration (refer Article 3). Additionally it was submitted that Article 9 has application namely, States Parties shall ensure that a child shall not be separated from his or her parents against their will except when competent authorities subject to judicial review determine, in accordance with applicable law and procedures, that such separation is necessary for the best interests of the child. Examples found within Article 9 of where it might be necessary to separate children from parents are neglect of the child by the parents or the parents having separated and a decision consequently having to be made concerning the child's place of residence. The examples given have no application in the present case.
124. Both representatives submitted, I think correctly, that the best interests of the child is a primary consideration. It is not in my view the only consideration.
125. There have been two decisions only of this Tribunal – and so far as I am aware none by the Federal Court – concerning the Act since its commencement on 1 July 2007. Paul (refer earlier) was an application involving an eight year old boy who was born in Australia. The Tribunal decided that the best interests of the child were a relevant factor to consider but upon an interpretation of the 2008 Policy and the legislation, there was no requirement that the best interest of the child be taken into account as a primary consideration. In Re Baddage and Minister for Immigration and Citizenship [2009] AATA 392 the applicant child arrived in Australia when aged 15 years and was 18 years at the Tribunal review. The issue of what was in the best interest of the child would appear not to have been relevant to that review because there is no reference to it in the Tribunal Reasons. (A child is a person below the age of 18 years – refer Article 1 of the Convention).
126. In concluding this part, I note that Direction 21 of the Minister issued under s 499 of the Migration Act elevated the best interests of the child to be a primary consideration when exercising the discretion in deciding whether a person should or should not have a visa refused or cancelled under s 501 of that Act. I also note that Direction No 41 issued by the Minister with effect from 15 June 2009 – which revokes Direction No 21 – provides that the best interest of each child should . . . be given individual consideration (paragraph 10.4.1).
127. Direction 21 and 41 were not the subject of submissions of either party and I do not reach any conclusion by regard to their respective contents. But, whilst these Directions apply in applications of visa cancellation because a person is alleged to have failed the character test under s 501(6) of the Migration Act, it is a Direction issued by the Minister who is the respondent to these proceedings. Direction 41 contains – at paragraph 10.4.1 (4) and (5) – an extensive list of factors that must be considered by decision-makers in deciding a child's best interests. I do not adopt those factors, as published, but it is impossible to ignore them, especially when most of those same factors were the subject of evidence and submissions in these proceedings. They are matters which any person, agency or decision-maker, would consider when assessing the best interests of a child. If the extent of the evidence heard and read in these proceedings was known to the Minister's delegate and had the benefit of submissions supporting this list of factors, I wonder whether a decision to refuse citizenship would have been made.
128. On balance I am satisfied that the best interest of the child – he presently being a five year old person and having lived all of his life in Australia – is a primary consideration. I agree with the submissions of both Counsel in this regard. The policy makes no specific reference to the best interest of the child which is I think a little surprising especially because s21(5) is concerned only with an applicant who is under 18 at the time the application for citizenship is made and the policy is concerned at Chapter 5 with persons under the age of 16. The policy directs decision-makers to assess each application on its merits. Despite what I have recorded earlier, the requirement to assess applications on their merits invites wide enquiry where the circumstances of each applicant for citizenship should be identified and considered, no less the circumstances of a child.
129. Accordingly there are a number of features applicable to the applicant which are not in dispute and which in my view weigh heavily in favour of citizenship being conferred.
130. The applicant was born in Australia and has lived all of his life in Australia. He knows no other culture or society except that to which he has been exposed and enjoyed throughout his life in Australia. He has lived in a stable, peaceful society, free of civil war and conflict with ready access to schools, healthcare and housing, the income of his father who is in employment and the fraternity of extended family. Whilst the evidence with respect to his ability to speak Sinhalese is I think equivocal, it would appear that English is his predominant language and the language that he uses to communicate with his parents, members of his extended family and his friends. His friends from kindergarten in 2008 have also enrolled this year in his pre-school. He therefore continues to enjoy the continuity of relationships. He wears contemporary western clothing, he plays with toys of a similar culture and consumes pizza and chocolate in preference to Sri Lankan food. He was regarded by Dr Paul as a typical Australian boy in his dress, demeanour, his play and other identifications (refer Exhibit 16 at page 5). Having to leave Australia, if the application is refused, would be a major disruption. Perhaps consideration of his application would be different if he was a baby and did not have any realistic identification or connection with Australia. But he does and his period of residence in Australia – now exceeding five years – is significant and a matter over which I would place considerable weight.
131. Refusal to grant citizenship would consequently cause a significant – in practical terms – ending of the relationship with his grandmother, his aunts and uncles and cousins in Australia. All of those persons live in close proximity to him and with whom he enjoys a close and regular relationship. Of special significance I think is the relationship with his grandmother Mrs Turunen. I deliberately record that denial of citizenship would, for practical purposes, end the relationship because the applicant would be required to migrate to Sri Lanka with his parents. His grandmother, aunts and uncles and cousins are all Australian citizens and will continue to reside in Australia. The opportunity for Mrs Turunen to visit him in Sri Lanka would be limited to no more than for a period of 30 days in each year having regard to the restrictions that would be imposed by Sri Lankan authorities upon her tourist visa. It also assumes that she would be able to afford to travel to Sri Lanka yearly.
132. The relationship between the applicant and Mrs Turunen was described at some length in these proceedings and is I think of special significance. The relationship was described by Dr Paul as a type of mother/son relationship because of the extent of her care of him in his early years whilst his mother was unwell. The applicant lived in her house for many years and she continues to visit him, almost daily and sleeps at his house for many nights each week. There was evidence that the applicant would telephone her and ask when she was coming to visit him on those occasions where she was not at his house. On occasions he and his grandmother sleep in the same bed. Detachment from her by refusal to grant him citizenship would cause a major disruption in the emotional connection and bond that he enjoys with her. Dr Paul recorded in his report (page 5) that the applicant demonstrates strong, reciprocal attachment relationships to each of his mother, father and grandmother . . . He has a very strong need for an ongoing relationship with each of his parents and grandmother. At page 6 of the report he records (the applicant) has evident healthy and strong attachment relationships which would be severely disturbed should any of his mother, father or grandmother be forcibly separated from him for any significant period of time.
133. If citizenship is denied and the applicant migrated to Sri Lanka with his parents, he could not reasonably be expected to enjoy the same standard of living that he has been able to experience in Australia. His father is currently employed and does earn an income. He and his parents live in a rented home close to other family and relatives. Whilst it would appear that the applicant's father has access to a home owned by his mother in Sri Lanka, on the evidence heard in these proceedings the opportunity for him to obtain employment – and therefore an income – would best be described as bleak. He has been absent from Sri Lanka for in excess of 10 years, the business of which he was previously a proprietor no longer exists and his trade qualifications as a chef were suggested as having little benefit presently to him having regard to not being engaged in that industry for many years. There was no evidence of any entitlement to or qualification for or quantification of a social security type benefit in Sri Lanka. The evidence of the poverty line and the conversion of Sri Lankan rupees to Australian currency (refer paragraph 55) does not, in my view, support the Minister's case. The standard of living, in Australia, enjoyed by the applicant and his parents is superior to a level of poverty and they should be entitled to continue the benefits this country offers. Whilst family members could transfer monies to the applicant's parents in Sri Lanka, they would not then have the economic independence they now have.
134. The applicant does not know any persons in Sri Lanka. His parents do not have any family members in Sri Lanka or if they are remaining, they are in locations remote from Columbo where they are likely to settle. The applicant's father said that most of his family members are either living in Australia or have moved away from Sri Lanka. One family member is believed to be in the Army and is understood to be living somewhere at or near the Jafna Peninsula. The applicant's mother lost all of her family members in the Boxing Day Tsunami. It would appear a finding has not ever been made by Sri Lankan authorities that they died in that catastrophe. But they have not been seen or heard of since it occurred, as is the case with many thousands of people who were engulfed by that event. The applicant's mother believes that they are dead and the probability is that belief is well held. The applicant will therefore not ever enjoy any relationship with members of his mother's family. (The Country of Origin Information Report (Exhibit A23) – issued by the UK Border Agency – The Border Agency Report – records that 31,000 persons were killed, 6300 persons are missing and 443,000 persons are displaced by the Tsunami – p13, paragraph 2.01 and p16, paragraph 3.06).
135. The issue of the ability of the applicant to be admitted to a school in Sri Lanka was the subject of considerable evidence. It was suggested that by reason of his Catholic faith, he would either suffer discrimination or at best difficulty being admitted into a government school. The suggested reason was because of the prevalence of the Buddhist faith in Sri Lanka with consequent priority in admission to government schools.
136. The respondent obtained a letter from the Third Secretary of the Australian High Commission in Sri Lanka prior to the resumption of the hearing in 2009. It was received into evidence (Exhibit R2). The letter records that government schools are not required to accept Buddhist students as a priority to other students. It also records that Christian Students are permitted to attend government schools and there is no expectation upon students to study Buddhism.
137. The applicant's father, when giving evidence on the third occasion towards the conclusion of the hearing, produced extracts from a Sri Lankan newspaper which purported to report that there was corruption amongst school officials in relation to the admission of students into schools. Those articles were subsequently translated into the English language and the translated versions were lodged with the Tribunal by the applicant's solicitors on 19 May.
138. The articles suggest that courts in Sri Lanka have a power to determine appeals against refusal to have a child enrolled, that a criteria has been determined to guide the basis for enrolment having regard to the geographical location of the child and whether the intended applicant for enrolment is related either to a present student, a past student or a staff member. There are references to congestion in schools and in some circumstances the number of enrolments exceeding the available placements by a factor of two or three. Another translated article is a report of an interview with the Director of Investigations with the Bribery and Corruption Commission. The report records that 95 percent of complaints against school principals related to corruption with respect to the admission of students into schools for admitting children who are less eligible leaving out most eligible children.
139. The author of the letter relied upon by the respondent was not required for cross-examination. The journalist who wrote the translated newspaper articles was not called nor was the Director of the Bribery and Corruption Commission. The letter from the Officer of the Australian High Commission is silent with respect to corruption by school officials and the newspaper articles are silent with respect to whether any preference is given to Buddhist students or conversely any discrimination against Christian students.
140. It is difficult in the circumstances to make any finding with respect to the likelihood of the applicant being admitted into a school in Sri Lanka and or whether he would face any difficulty. What can however be stated with some certainty, is in the event that this application is refused, he would be required to travel to Sri Lanka, he would have to forego the pre-school which he has commenced in Melbourne and in the absence of any evidence of schools in Sri Lanka communicating in the English language (assuming that he could be enrolled into such a facility), he would lose the benefit of communicating in a language in which he is familiar and he would be amongst persons with whom he has no familiarity or association..
141. In concluding this part, considerable attention needs to be given to the preference for a continuing relationship between the applicant and his parents. No one would surely doubt that it is in the best interests of this five year old applicant to continue to reside with his parents. In reaching the conclusions that will ultimately follow, I am conscious that his parents have been refused protection visas and they continue to reside in Australia pending the conclusion of this application. If the applicant succeeds they are aware that they may be required to leave Australia and repatriate to Sri Lanka. Considerable attention was given to that issue during the hearing and evidence was heard from the parents, Mrs Turunen and the medical witnesses – in the event that the application succeeded – whether the applicant would travel to Sri Lanka with his parents or whether he would remain – in their absence – and reside with his grandmother who willingly said that she would accept responsibility for his care and maintenance.
142. This review is concerned only with the merits of the applicant's application. The decisions made by the RRT concerning the status of the parents in Australia are outside the ambit of this review and no decision will be made by me with respect to the conclusions reached by the RRT.
143. In order to ameliorate the risk of the applicant's parents being returned to Sri Lanka in the event that he succeeds in this review, evidence was heard with respect to the opportunity of the applicant by his grandmother, as guardian, to make application for a Contributory Parent Visa should he be entitled to a grant of citizenship. At the conclusion of the proceedings a number of items of correspondence were received from the solicitors for both parties indicating that the total cost of such an application would be $68,290.00. In evidence the applicant's aunt said that by reason of equity held by her and her husband in jointly owned real estate, they could qualify for a loan which would meet the costs of Contributory Parent Visa. She also said that by reason of their respective incomes they could meet repayments with respect to those loans. A letter received from the applicant's solicitor of 2 June 2009 confirmed eligibility for a top up home loan to the sum of $100,000. A letter from the respondent's solicitor on 22 June submitted that the letter of 2 June should be interpreted as no more than an indication of eligibility for such a loan and an insufficiency of evidence to establish that the applicant's aunt and her husband had the capacity to make repayments.
144. Having regard to the value of the jointly owned home as advised by Mrs Cumine, there is a likelihood that the eligibility can be converted into a probability of funds being made available to meet the cost of the Contributory Parent Visas. The respective incomes of Mrs Cumine and her husband, together with their capacity to earn, satisfies me they could adequately meet repayments of the loan (refer Transcript at pp254-257). It therefore follows that the applicant, or a responsible adult on his behalf, could make the application for a Contributory Parent Visa which – the letter of 22 June 2009 also confirms – can be made onshore. It therefore follows that the Contributory Parent Visa applications when made and when the relevant fees are paid, could result in the applicant's parents being permitted to remain in Australia. That outcome is of course to be preferred because it would be in his best interests to remain here, with them.
145. The respondent's solicitors also advised by their letter of 22 June 2009 that in the event citizenship is granted but the applicant travels to Sri Lanka with his parents, the person deciding whether to issue Contributory Parent Visas will have to decide whether he is settled, as an Australian citizen, within the Migration Regulations. The author of the letter declined to predict the conclusion the delegate would reach.
146. If the application can only be made with the parents having previously been removed, there should not be any delay in the processing, having regard to the evidence of Dr Paul and Professor Sundram. Periods of separation are likely to impact on the applicant and his parents. That is not in his best interests.
147. The hearing heard many instances why it would it would not be in the applicants interests for his parents to be returned to Sri Lanka either with him as an Australian citizen or whilst the Contributing Parent Visa applications are being processed (should he stay here). From the evidence heard and summarised immediately following, the material and physical health of his parents would be at risk should they be returned.
148. The applicant's mother referred to the overwhelming loss she suffered when her family was effectively eliminated by the 2004 Boxing Day Tsunami. She also referred to an attempted sexual assault upon her by persons who were seeking out her husband. She is in fear of returning to Sri Lanka by reason of that event. The Member who presided at the RRT in her protection visa application made a finding of fact that such an event did not occur (Exhibit A18 at p44). I am not bound by that finding. Having observed the applicant's mother give evidence on two occasions in these proceedings and having also read the reports of Professor Sundram and heard him give his evidence, I am satisfied and find as a fact that an attempted sexual assault did occur. I am also satisfied and find as a fact that the applicant's mother is in fear of confronting the persons who committed that act and her psychological health – as frail as it has been – would be in peril by her return to Sri Lanka and the opportunity to obtain appropriate treatment would be limited (refer evidence of Professor Sundrum and the Border Agency Report – p149, paragraph 26.21 – at December 2006, 24 psychiatrists were practicing in Sri Lanka).
149. The applicant's father gave evidence of having been confronted and threatened by persons who were politically opposed to him (also refer Police Statement of 15 May 1998 – Exhibit A14). Those persons were eventually apprehended, convicted and imprisoned. They have also sought him since he left Sri Lanka and caused damage to property owned by a brother of the applicant's father, who by reason of such an intrusion, also left Sri Lanka. In his RRT asppeal, (differently constituted to the RRT appeal of his wife), the Presiding Member found, after hearing evidence from the applicant's mother that there was an attempt to sexually assault her, by the persons who had, either previously confronted or were looking for her husband. The attempted assault on her occurred after those persons were released from gaol. The RRT Member also found that those persons had set fire to her brother in law's house and had intimidated her by throwing rocks onto her roof (refer Exhibit A9 at p24).
150. Statements (Exhibit A7 and A8) were sent to the applicant's father by his brothers who reported intimidatory events to local Police. The failure to lodge those statements pre hearing was not satisfactorily explained. Despite some misreporting of the age of one of his brothers and the spelling of the town – Kandana – where the statements were taken, I am satisfied that the confrontation with the applicant's father did occur and was, in fact, reported and the statements are evidence of the reporting. I also accept and find – on the evidence – that persons were convicted and sentenced and it is these persons in whom the father remains in fear and causes him to be apprehensive about returning. By reason of the opportunities in Sri Lanka lost to him by moving to Australia, as opposed to the opportunities that have become available to him in Australia namely, employment and accommodation it would be in his interest to remain in Australia. In the event therefore that the applications for a Contributory Parent Visa were successful – without advocating for or anticipating the outcome of such an application – I would in the exercise of the discretion available under s 21(5) of the Act urge that such applications, if made, would cause security in the mind of the Minister that the best interests of the child would be advanced by him being permitted, as a citizen, to reside in Australia with his parents. I would also recommend, with respect that the parents be permitted to remain in Australia whilst such an application is being processed.
151. Much evidence was heard concerning the period of separation with which the applicant and his mother could cope should his application succeed but she was forced to repatriate. There was evidence also concerning the ability of the applicant to cope in the event that he returned with his parents to Sri Lanka but was absent from his grandmother. The repercussions of separation of the applicant from those persons can be avoided by him being granted citizenship and by his parents being permitted to remain in Australia by Contributory Parent Visas or some other Ministerial intervention. The health of the applicant's mother would also be preserved if she was permitted to remain. There is, on the evidence of Professor Sundram, considerable risk of her suffering a relapse in her emotional wellbeing upon returning to Sri Lanka where she and the applicant would be at risk (if he also travelled with her). She would not have access to appropriately qualified health practitioners which may in turn exacerbate the risk articulated by Professor Sundram namely, the applicant's mother committing suicide and potentially infanticide.
152. Should the Contributory Parent Visa applications be unsuccessful or for some other reason the applicant's parents do not qualify under the visa regime to reside, it may be that the Minister would be prepared to intervene under s 417 of the Migration Act in an application made by the applicant's parents. At the risk of repeating earlier comments, this suggestion of a s 417 application is not made by way of advancing a case on behalf of the applicant's parents but rather, upon the basis that it is in the best interests of the child that he and his parents are not separated. I am satisfied for the above reasons that the applicant infant should be granted citizenship by conferral and in those circumstances it would not be in his best interests to be separated from his parents. By reason of the matters heard concerning the applicant, the issues confronting the parents in the event of their return, and the findings made in these Reasons, it may be that the Minister would be prepared to exercise the discretion available to him under s 417 of the Migration Act thereby preserving the family as a unit in Australia.
153. I am satisfied that it would be in the applicant's interests to remain here, as a citizen. If the application is refused he will have no alternative but to move to Sri Lanka with a father who will be unemployed (and the family will be economically vulnerable) and a mother who will in all probability need psychiatric care or management which will mostly be unavailable to her. Living with his parents, in Sri Lanka was thought likely, by Dr Paul as causing a significant negative impact upon the applicant (refer Exhibit A16, p6) especially if his mother suffers significant depression or despair.
154. Being permitted to remain here, as a citizen ensures – short and long term – whether with his parents or his grandmother – continuity and stability of housing, health care, relationships, communication, education and identity. In short, denial of citizenship and consequent removal to Sri Lanka will expose the applicant to uncertainty and a radically different social familial, political and economic environment.
155. As indicated by Dr Paul (Exhibit 16, p7) his emotional and developmental needs will be at risk. The applicant presented to Dr Paul as a typical Australian boy. On balance I am satisfied that identity should be recognised by a grant of citizenship. This is an application involving circumstances which are unique. On balance I think an injustice would occur if citizenship is not conferred. It would not be correct or preferable to make that decision.
156. For all of the above reasons I am satisfied that the decision under review should be set aside and in substitution for the decision made I am satisfied that the applicant should be granted citizenship by conferral under the provisions of the Australian Citizenship Act 2007.

POSTCRIPT

157. The applicant's parents gave evidence concerning threatening events upon them by persons believed to have an association with the LTTE when they resided in Sri Lanka. These and the perception of reprisals were, in part, advanced as reasons for their reluctance to return to Sri Lanka. The father said, despite having been away from Sri Lanka for 11 years, that he remained in fear from the LTTE because it is a guerrilla organisation. Despite a suggestion that the LTTE was confined in a military seige . . . in the North East, the father said even if the war is over that organisation will not be over (refer Transcript at p138-9, 154-5).
158. It is impossible to conclude this decision without acknowledging that subsequent to the hearing concluding, there has been widespread reporting in electronic and print media in Australia suggesting the LTTE has been defeated by the Sri Lankan Military and the civil war has ended. Neither party has applied to make any further submissions, which might be thought relevant to whether there is any continuing likelihood of threat upon the applicant or his wife should they return to Sri Lanka.
159. Even if every LTTE member and sympathiser was captured and detained and the risk to the parents was eliminated or considerably less than they envisaged at the hearing, there were many other reasons advanced by them against returning, again, a consequence not in the best interests of the applicant should he not succeed in this review. On balance, I remain of the view that it would be in his interests to be granted citizenship. The opinions of Dr Paul remain valid and the conclusions reached earlier are no less applicable by the proposition put at the beginning of this paragraph.
     

I certify that the 159 preceding paragraphs are a true copy of the reasons for the decision herein of

Mr John Handley, Senior Member

Signed: Grace Carney, Personal Assistant

Date of Hearing 9 and10 December 2008, 3, 4 and 5 March 2009

Date of Decision 21 July 2009

Counsel for the Applicant Professor K Rubenstein

Solicitor for the Applicant Ms L Stewart, Michael Clothier and Associates

Counsel for the Respondent Mr P Gray

Solicitor for the Respondent Ms P Heffernan, Australian Government Solicitor