Paul and Minister for Immigration and Citizenship [2009] AATA 97 (13 February 2009)

Last Updated: 13 February 2009

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION

[2009] AATA 97

ADMINISTRATIVE APPEALS TRIBUNAL )

) No 2008/3316

GENERAL ADMINISTRATIVE DIVISION )

Re Aishik Antar PAUL

Applicant

And Minister for Immigration and Citizenship

Respondent

DECISION

Tribunal Professor GD Walker, Deputy President

Date 13 February 2009

Place Sydney

Decision The decision under review is affirmed.

....................[sgd]..........................
Professor GD Walker
Deputy President

CATCHWORDS

IMMIGRATION –Citizenship – child under 18 - whether citizenship should be conferred on the applicant under s 21(5) of the Act despite applicant not holding a permanent resident visa - whether the application warrants approval because of the exceptional nature of the circumstances – no exceptional or very unusual circumstances found to exist – decision under review is affirmed.

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RELEVANT ACTS

Australian Citizenship Act 2007 (Cth) (the Act): ss 21, 24, 52, 417

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CITATIONS

Re Drake v Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634

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

Re Choi and Minister for Immigration and Citizenship [2008] AATA 726

Goode and Goode (No 2) [2007] FamCA 315

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AUTHORITIES

Australian Citizenship Instructions (the ACI): Chapter 5

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REASONS FOR DECISION

13 February 2009	Professor GD Walker, Deputy President
Basic facts

1. The applicant Aishik Antar Paul is a boy aged eight who applied for Australian citizenship on 14 January 2008 pursuant to the provisions of the Australian Citizenship Act 2007 (Cth) (the Act). His date of birth is 9 December 2000.
2. A delegate of the minister decided on 14 June 2008 to dismiss the application on the ground that as the applicant is not a permanent resident, he did not meet the criteria applicable to s 21(5) of the Act or the policy requirements contained in the Australian Citizenship Instructions (the ACI), Chapter 5. There was nothing exceptional or very unusual in the claims advanced on his behalf.
3. At the hearing, Mr Raymond Solaiman, a migration agent of Raymond Solaiman & Associates appeared for the applicant while Ms Zoe McDonald solicitor with DLA Phillips Fox appeared for the respondent on the first day and her colleague Mr Greg Johnson appearing on the second and third days of the hearing. The documents before the tribunal comprised the documents produced pursuant to s 37 of the Administrative Appeals Tribunal Act 1975 (the T documents), taken into evidence as Exhibit R1, together with the other documents tendered by the parties at the hearing. The applicant’s parents gave oral evidence in person with the assistance of a Bengali interpreter. Dr Kieran Nixon, the applicant’s mother’s treating doctor providing evidence by telephone in support of the applicant’s case.

Applicable law

4. Section 21 of the Act provides:

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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 at that time; and
• (c) satisfies the residence requirement (see section 22), or has completed relevant defence service (see section 23), at that time; 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.

(3) ...
(4) ...
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.
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Australian Citizenship Instructions (ACI)

5. Revised ACI came into effect from July 2008, just after the delegate made his decision in this matter. The revised ACI are identical in all relevant respects to those ACI that were applied by the delegate.
6. The present ACI provide, in relation to applicants who are aged 16 or less at the time of application for citizenship, that:

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A child aged under 16 years can make an individual application in their own right (by applying on a form that contains no other application) or on the same form and at the same time as a responsible parent. This is set out in subsection 46(2A) of the Act.
Children under the age of 16 applying individually in their own right would usually be approved if they:

• hold a permanent visa, including an adoption visa; and
• are under 16 years of age when applying, are living with a responsible parent, who is an Australian citizen and consents to the application; or
• are under 16 years of age when applying, and living with a responsible parent, who is not an Australian citizen and consents to the application, and the child would otherwise suffer significant hardship or disadvantage (refer to Attachment B for definition); or
• are under 16 years of age when applying, and in the care of another person, such as relative who consents to the application, and the child would otherwise suffer significant hardship or disadvantage; or
• are an unaccompanied humanitarian minor who is a ward of the Minister and the Minister’s delegate has consented to the application (see Wards of the Minister in this chapter).

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In the case of an applicant who does not meet the policy requirements above, decision makers must consider the full circumstances of the case, including the best interests of the child, to determine whether the application nevertheless warrants approval because of the exceptional nature of those circumstances. The circumstances would need to be very unusual to warrant approval of an application outside policy.
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Issue

7. Whether citizenship should be conferred on the applicant under s 21(5) of the Act despite his not holding a permanent resident visa.

Applicant’s father’s evidence

8. The applicant did not personally give any evidence, but his father Mr Gautam Kumar Paul gave oral evidence through an interpreter. As the matter had been specially expedited because the applicant had a s 417 application to the minister pending, no written statement of his evidence was available.
9. Mr Paul said he is of Bangladesh nationality, although he came to Australia on an Indian passport. Asked if he had renewed it, he replied that he had not renewed it from here, and then that he had never renewed it.
10. He denied that he had renewed it in India, saying that the renewal was arranged on his behalf by an agency. They had made all the arrangements, and he had only been required to supply a photograph. He had needed an Indian passport because he had experienced problems in Bangladesh and could not live there. He had attempted to obtain a visa for the United States at first, then for Australia.
11. Asked why he could not have come to Australia on a Bangladesh passport, he replied that because of his problems in Bangladesh he could not remain there. He had to flee to India.
12. After being asked several times why he had not used a Bangladesh passport, he replied that he had first obtained a Bangladesh passport at the outset when he had applied for a protection visa on the basis that he was of Bangladesh nationality. A departmental officer had supplied him with the application form and he had signed it. He still gave no reason why he had not used a Bangladesh passport to travel to Australia.
13. He was born in Bangladesh of Bangladeshi parents and had sat for his senior school certificate in 1982 but failed, then passed in 1984. He had voted in the Bangladesh 1996 elections.
14. Mr Solaiman then asked Mr Paul a number of questions about Bangladesh, its history and politics. He said he had renewed his Bangladesh passport in Sydney but the department currently holds it.
15. He had never legally married Debi Saha but considered himself “mentally married” to her. Reminded that he had told the Refugee Review Tribunal (RRT) that she was his wife, he replied that he needed to make it appear more formal for the benefit of the Bangladesh community.
16. He suffers from long-term health problems (see Exhibit A1) and is unable to work. He has not worked for eight years, and in any event did not have permission to do so until recently.
17. He and his wife take care of Aishik. He is able to give the child full care except when he is unwell.
18. Asked if he had ever stayed illegally in Australia, he replied that he had not, but then said he had not known that he was present illegally until told at Villawood.
19. Asked if he still held a valid Bangladesh passport, he said it was being held by the department. He had wanted to renew it but the department had asked him to complete a form seven or eight months ago so that they could arrange the renewal for him.
20. After further questioning, he eventually conceded that his Bangladesh passport had expired and that he no longer held a valid one, as neither he nor the department had renewed it. To the question whether he had applied to renew it, he replied that he had, but he needed the earlier passport to show to the Bangladesh High Commission. He had not wanted to allow the department to renew the passport for him because, on the first occasion, he had made the arrangements himself.
21. The Indian passport that he had used to enter Australia in 1996 had expired six years ago. He denied that he had ever held more than one Indian passport, the one that had been issued to him when he fled from Bangladesh before 1996. He could not remember when he had applied for it because the broker had arranged for it on his behalf.
22. He had travelled to India by road with no travel documents. He could not travel overseas with a Bangladesh passport because he had fled the country. He had obtained an Indian passport, not because he wanted to live in India, but because he wanted to move to the United States.
23. He said he had previously held a Bangladesh passport with a visa for India, but then said it was a special passport that was valid for travel to India only. He did not know where it was at the moment.
24. Asked several times why he had waited six years before applying for the Bangladesh passport in Australia, he replied first that he had told the department officer that he had never held an Indian passport, and then that he had never used his Indian passport again. He had applied for an Australian visa as a Bangladesh citizen, although he had arrived on an Indian passport. He had waited six years before applying for a Bangladesh passport because he knew nothing about Australia and his solicitor had not asked him for a passport.
25. At the resumed hearing on 15 December 2008, he was asked about the reasons he had given in his application for a bridging visa B to enable him to travel, on 20 November 1997 (supplementary T documents (ST) pp51-52). In that application he had said inter alia that his wife, to whom he referred as a Mrs Dolan, was in immigration detention in Nepal. He evaded the question at first, then said he could not remember anything about the grounds because his migration agent at the time, a Mr Amin, had told him what to do. He could not remember signing the documents as it was a long time ago and he never became aware of the contents of the statement. It was not his history. He had, however, used the visa he obtained by those means to travel to Bangladesh.
26. The visas for Norway and Singapore in his Indian passport (ST pp 58, 59) were obtained because his “broker” in India had told him they would assist him to obtain an Australian visa. He had never travelled to those countries. The broker had also arranged for the Indian passport to be issued, by using false documents.
27. Following the RRT’s rejection of his appeal in relation to his first protection visa application, he had unsuccessfully sought ministerial intervention under s 417 of the Act. Subsequently he had made a second application for a protection visa, which was also refused, and his second appeal to the RRT was rejected in 2002. On that occasion the RRT had rejected his claim that he was a Bangladesh citizen and concluded that he was instead of Indian nationality.
28. Mr Paul said, however, that he had always claimed to be a Bangladesh citizen. He had used his Indian passport to obtain an Indian passport for the applicant, who needed a photographic identity document for Medicare purposes, although his mother is Indian.
29. Following the second unsuccessful RRT appeal, he had made another s 417 application, which was denied on 17 July 2002. In late 2002 he had made an application to the Federal Magistrates’ Court, which was rejected. From that rejection he appealed to the Federal Court, which dismissed his appeal in August 2003. He had then unsuccessfully sought special leave to appeal to the High Court.
30. In March 2005 he had made new applications to the Federal Magistrates’ Court with his de facto. Their applications were rejected and new appeals to the Federal Court were dismissed. He then returned to the Federal Magistrates’ Court, which in October 2005 rejected his application and stated that no more applications would be received from him without leave. He appealed again to the Federal Court, which dismissed the appeal and also stated that no more applications would be accepted.
31. It was then that his son had applied for citizenship, at the same time as another s 417 application was made, which is still pending.
32. He has no blood relatives in Australia but does have some distant relatives he sees occasionally. His father died two years ago and he had no contact with his mother or brothers, but they are in Bangladesh. He had heard that his mother is living with a distant relative in Bangladesh.
33. Mr Johnson then asked him whether, if he had to leave, his son would travel with him to Bangladesh. He replied that he had no situation there, but if he could live there, his son could join him. But his son could not speak good Bengali and it would not be practicable for him to live there. He speaks English with his mother, but Mr Paul himself speaks little English. He speaks Bengali with his partner.
34. When it was put to him that the applicant must speak more than a little Bengali if his parents only speak that language, he replied that the applicant does not understand what is happening at Bangladesh functions and becomes bored, wanting to leave. He prefers to watch English-language movies. The applicant has just finished Year 2. He has held an Indian passport but it is not currently valid.

Applicant’s mother’s evidence

35. As was the case with Mr Paul, the applicant’s mother Ms Debi Saha, had not prepared a written statement. In her oral evidence in chief she said she was not married to Mr Paul, and that they simply lived together. When it was put to her that the evidence she and Mr Paul had given before the second RRT appeal was that they had married in North Sydney on 12 December 1999 (ST p203), she replied that there had been no ceremony.
36. Her attention was then drawn to Mr Paul's statutory declaration of 7 May 2001, which stated that “We finally got married by following Hindu customs in a Temple located in North Sydney on 12 December 1999” (ST p139). She replied that she did not know about that statement but there was no legal bond between them.
37. She was sick from taking too many medications and was in pain. She had begun a new medicine [last week]. She was unable to give total care to the applicant, but there was no-one to help her. She would take him out to nearby places and could help him with his schoolwork. She performs the cooking and similar tasks [digital audio transcript 15 December 2008; 12:02- 03pm]. She currently holds a valid Indian passport, and she has renewed it.
38. In cross-examination Ms Saha said that as she now receives Medicare benefits, she has monthly blood tests and a scan. The medications cost less to buy under Medicare. They relieve the pain, and when the pain increases she increases the dose, but they affect her moods. The medications are solely for the relief of her pain, which they do, but cause side effects such as a rash. For that reason she has changed to another medication. Because her vitamin D level was low, she has been taking a new prescription drug and has been told to sunbathe for 10 minutes daily.
39. She did not suffer from arthritis when she came to Australia on 18 November 1999. When her son was born she was well for a year, but then had problems with her spine and legs. She did not know whether the necessary medications would be available in India or Bangladesh, but thought they would be more expensive. She had not made any enquiries about that. She was not suffering from any other medical conditions other than a rash. The mental problems she experienced were the direct effects of taking methetrex.
40. She could help her son with his studies but was unable to move a great deal. Mr Paul places the clothes in the washer, for example. She has no help available to her in Sydney. She has no family here, although some friends, but her husband has neither family nor friends. She speaks English with her son, although she is not fluent in it. Her son does not speak to her in Bengali but sometimes does with his father. He mainly speaks to her, however.
41. She was born in Bangladesh, where she had spent her first eight to 10 years, but holds a valid Indian passport. All her family live in India, but she has had no contact with them since coming to Australia because they disapprove of her having had a child out of wedlock.
42. If she and Mr Paul had to leave Australia, they would take the applicant with them, but he wants to remain in Australia also and has no idea about other countries. She had never given any thought to what they would do if they had to leave.
43. She had held a computer-related position in India, but now her fingers were damaged. She did not know whether Mr Paul would be able to work in India or Bangladesh.

Medical evidence

44. In her oral evidence by telephone, Dr Kieran Nixon, a family medical practitioner in Sydney, adopted her letter of 17 October 2007 (T p61). Dr Nixon said she had known Ms Saha since 2004 and that she suffered from psoriatic arthritis, a severe case that was not responding well to medication. She could not be sure that Ms Saha’s problems in the hips and back were caused by that condition, but it did greatly limit what she could do.
45. Ideally she should be having monthly blood tests, but is not always able to do so because of the expense involved. She should be seeing a rheumatologist every two months, and a general practitioner monthly, but Dr Nixon was seeing her about once every three months. Part of the time she had Medicare coverage, but there were gaps. The maximum Medicare benefit was $30 per prescription and her total expenditure on medication was about $300 per month, together with $110 for each blood test. The expense was a major burden.
46. One of the medications could affect the liver and marrow, leading to anaemia and suppression of the immune system. She would be more prone to contracting tuberculosis from the people she meets and should be monitored every month. She would also be more prone to contracting TB in Bangladesh. If she did so, there could be a risk that the child could contract it from her, but he could be vaccinated against it and that would help.
47. The methotrexate she is taking weakens the immune system, but sometimes she ceases taking it for uncertain periods for financial reasons. Dr Nixon did not know whether her symptoms underwent any change when she was off methotrexate because she did not have regular contact with her.
48. The immune modifier drugs have not resulted in her becoming sick more often and she had not needed any more antibiotics.
49. Dr Nixon was unaware whether the psoriatic arthritis had existed when Ms Saha was in Bangladesh. She had been seeing her since 2004 but had not asked her when it started.
50. Dr Nixon could not estimate how much more liable Ms Saha was to contract tuberculosis by reason of her condition, but she was aware that India had a higher incidence of tuberculosis and that Bangladesh was worse. Ms Saha would need to interrupt taking her other medication for a period of months if a vaccination against tuberculosis were to be effective. Even if she did, her immunity would not be as strong as that of a person in normal health.

Applicant’s submissions

51. Mr Solaiman outlined the history of the various appeals, then submitted that Mr Paul had given consistent evidence for 10 years about the reasons for his Indian passport and his true nationality. He was a Bangladeshi and the evidence was that his accent was from that country. He had refused to allow the respondent to renew his Bangladesh passport because he did not wish facilitate his own deportation by placing the department in the possession of a valid passport.
52. As a Bangladesh citizen he would be returned to Bangladesh and it was not clear whether Ms Saha, who has an Indian passport, would be able to join him there. It would be a matter for the Bangladesh authorities, and the law there is not administered as fairly as in Australia. The family could be split.
53. While it could be said that the applicant's father had abused the migration system for years, his behaviour was not relevant to the applicant’s case. It was relevant, however, that his mother is sick, and if she were to cease her medication, the applicant could become an orphan. The medication depresses her immune system, which would expose her to tuberculosis. Mr Paul himself was a patient of the Royal Prince Alfred Hospital rheumatology clinic for his severe rheumatoid arthritis. That condition resulted in severe morning symptoms of pain, immobility and stiffness.
54. The health of the applicant’s parents was relevant to the child’s best interests, which now had to be taken into account under the revised ACI.
55. Mr Paul had not worked while in Australia, not having had permission to do so until recently. At present he was unable to work and the family was being supported by community groups and by visa seeker organisations. They also sublet rooms in their current accommodation.
56. Religious persecution of Hindus had occurred in Bangladesh. The RRT following the first hearing did not accept that Mr Paul had been persecuted, but what was not persecution for an adult would be for a child.
57. Ms Saha’s serious case of psoriatic arthritis requires her to take medications that weaken her immune system and would expose her to tuberculosis, possibly making the applicant an orphan. She is unable to work and there is no evidence of a social security system in India or Bangladesh.
58. She would receive no support from her family because she has had a child out of wedlock. The parents could marry but are unwilling to do so and illegitimate status would be a problem for the applicant. Further, his parents would be unable to support themselves, educate him or obtain health care for him.
59. The applicant has spent all his formative years in Australia. Reports show problems of child abuse, traffic in children, and child sexual abuse in India. The applicant's parents would not use harsh methods but teachers and other adults might do so. There is no way of knowing how he would react to Indian society and its values. Overall it would not be beneficial for him. He would never be able to return to Australia.
60. In Bangladesh the applicant would suffer from being a Hindu, as Hindus are viewed as enemies in that country.
61. Thus he would face educational problems because of his illegitimate child status, his parents’ health difficulties would be a problem for him, and he would be subjected to religious discrimination. All such factors together are exceptional circumstances.
62. The applicant has spent eight years in Australia since his birth and seeks a concession of two years only. As treaty obligations would prevent his parents’ deportation if he were granted citizenship, they could remain in Australia. Even if that were not the case he could be cared for by other means.
63. After the hearing, the applicant’s representative emailed to the tribunal and the respondent on 14 January 2009 some brief additional submissions referring to passages in the applicant’s bundle of documents (Exhibit A4) referring to discrimination in government employment, and other contexts, against Hindus in Bangladesh.

Consideration

64. The ACI are to be followed by the tribunal in applying the Act unless there is good reason not to do so: Re Drake v Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634. The relevant provisions are in chapter 5 of the 2008 edition of the ACI (the delegate when making the decision under review applied the earlier version that was in force at the time of that decision).
65. The tribunal has jurisdiction under s 52(1)(b) of the Act to review decisions made under s 24(2) of the Act, which gives the minister a discretion to refuse to approve a person becoming an Australian citizen despite the person being eligible so to become under s 21(5) of the Act (among other provisions). The applicant meets the requirements for eligibility with the exception of the first one, namely that he is not a permanent resident. He has been present in this country on a series of bridging visas.
66. The applicant’s case centred on the following paragraph in the ACI:

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In the case of an applicant who does not meet the policy requirements above, decision-makers must consider the full circumstances of the case, including the best interests of the child, to determine whether the application nevertheless warrants approval because of the exceptional nature of those circumstances. The circumstances would need to be very unusual to warrant approval of an application outside policy.
...

67. In particular, the applicant built his case on the best interests of the child, a factor that was not specifically mentioned in the earlier ACI. The applicant’s first argument was that refusing his application for citizenship would result in the family being divided. He and his mother hold Indian passports. While his father has at various times held two Indian passports, he stated that they were obtained through the use of fraudulent documents and that he was not entitled to them. The second Indian passport was issued, not because the earlier one had expired but because it was full.
68. The applicant adduced evidence tending to show that Mr Paul is a Bangladesh national, and from that it was submitted that if the family were deported, they would be sent to different destinations.
69. That proposition, however, is based on a false premise. The current policy instructions relating to removal destination and route (Exhibit R2) state that:

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The removal provisions of the Act do not specify the destination for removals. Departmental policy is that a person may only be removed to a country of citizenship or where they have the right of entry and long-term stay.
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70. The department is able to make arrangements for travel documents, not necessarily to the country of citizenship. Indeed, in October 2007 it was making arrangements with the Bangladesh High Commission for Ms Saha to be granted a long-term visa for Bangladesh (ST p371). Further, there is no evidence to suggest that the family could not relocate to India. Ms Saha holds a current Indian passport. The applicant has held one and there is no evidence to show that he could not renew it. Exhibit A4 indicated that until the return to democracy in Bangladesh in 1991, considerable numbers of Hindus had relocated to India, but the flow had reduced and was now motivated primarily by economic and family reasons (at pp596-597).
71. The outcome of any such arrangements cannot be predicted, but they would not simply involve removal to the country of the individual’s travel documents. Consequently, rejection of the application would not divide the family.
72. Secondly, the applicant argued that the health of his parents required approval of the application. Their health could be relevant in so far as it affects the best interests of the child.
73. Ms Saha has a severe case of psoriatic arthritis, a disabling but not life-threatening condition, which is not responding well to treatment. One of the medications she is prescribed, methotrexate, has immunosuppressive effects and Dr Nixon considered that her risk of contracting tuberculosis in India or Bangladesh would be greater. If she were to contract it, the applicant would be exposed to the risk of infection.
74. Dr Nixon acknowledged that the applicant could be inoculated against tuberculosis. A UK Border Agency Country of Origin Information Report on Bangladesh dated 25 September 2008 noted that following mass immunisation programs, 96 percent of one year-old children in Bangladesh were immunised against tuberculosis, 88 percent against polio and 81 percent against measles (ST p 634, para 26.33).
75. Dr Nixon also pointed out that Ms Saha herself could be immunised, provided that she interrupted her medication for a period of months. She has in fact ceased taking the medications for uncertain periods in the past for financial reasons.
76. No specific evidence was presented regarding the availability of treatment or medication for Ms Saha in India or Bangladesh.
77. Mr Paul also suffers from arthritis, but in a much less severe form than Ms Saha. There is no expert evidence to indicate that he is disabled by it, and indeed no oral or detailed medical evidence about him at all.
78. Arthritis is not regarded as curable and unfortunately the applicant’s parents will suffer from it no matter where they are. The applicant's case assumes that conferring citizenship on him would automatically make his parents eligible for visas. That is not necessarily the case, however, and there is no evidence before the tribunal as to the options that might be available in that event. It would certainly not be automatic, however. While a citizen can sponsor relatives, there is no evidence that they could return on any particular visa. Their own migration history would be relevant in the consideration of their applications.
79. The applicant’s third argument in relation to the best interests of the child was that he would be subjected to discrimination in Bangladesh. It was submitted that his illegitimate child status would be an obstruction to obtaining education or other services, but no evidence to support that proposition was adduced. Evidence of religious discrimination against Hindus in Bangladesh was adduced, however. While it was not disputed that Bangladesh has legally established freedom of religion, the applicant argued that it was not always honoured and that there were cases of serious discrimination, including discrimination in government employment. While there has undoubtedly been some persecution of some Hindus, it does not appear to be automatic or pervasive. Mr Paul's own claims of having suffered religious persecution were rejected by the RRT.
80. The applicant also relied on evidence of child abuse, sexual abuse and trafficking in India. The sexual abuse of children is unfortunately a problem in many countries, including Australia (see (Wood Royal Commission) Royal Commission into the New South Wales Police Service, Final Report, Vols IV and V, The Paedophile Inquiry). The applicant would also be living with his parents, who would not abuse him and would ensure that others did not do so either.
81. Fourthly, the applicant argued that cultural and language issues made a grant of Australian citizenship imperative. The applicant was born and has continually resided in Australia. Now aged eight, he has just completed Year 2 at school and may be assumed to have achieved a reasonable standard in English. Ms Saha said he does speak Bengali to some extent, but his understanding is imperfect. Neither of his parents is fluent in English, and Mr Paul said they speak Bengali between themselves.
82. It was put to him that the applicant must speak more than a little Bengali if his parents only use that language, to which he replied that the applicant does not understand what is happening at Bangladesh functions. He becomes bored and wants to leave. It was noticeable, however, that on the day he attended the hearing, the applicant became visibly bored and plainly wanted to leave.
83. The applicant submitted that he has spent his formative years in Australia, but his formative years are in their early stages. At his age, he would be less inconvenienced by a cultural and language change, and would more readily adapt to a different culture overseas than an older child would. That is a material point of distinction from cases such as Re Raisani and Minister for Immigration and Citizenship [2008] AATA 640 and Re Choi and Minister for Immigration and Citizenship [2008] AATA 726, where the children were in their late teens. In this case, with a Bangladeshi father and a mother who has spent most of her life in India, and parents who speak Bengali between themselves and attend Bangladesh functions, the applicant will have had significant exposure to the cultures of Bangladesh and India.
84. In conclusion, while affirming the decision under review would mean the applicant would face some adjustments and upheavals, there is nothing about them that could be categorised as exceptional or very unusual or as otherwise warranting approval of an application outside the established policy. Holding a permanent visa is central to the scheme of the Act and the ACI. No secret was made of the fact that the present applicant is seen, and being used, as the last weapon to enable his parents to remain in Australia. Indeed, the applicant’s representative made that position quite clear. But the acts of the applicant’s parents could not disentitle him from conferral of citizenship.
85. Further, while the best interests of the child are a relevant factor to consider, there is no statutory or policy requirement that the applicant’s best interests be taken into account as a primary consideration. They are simply to be considered as part of “the full circumstances of the case”, in contrast to the position under, for example, s 501 of the Act and the related policy Direction No 21, which elevates the best interests of the child to the position of a primary consideration.
86. The applicant relied on Goode and Goode (No 2) [2007] FamCA 315. It is not easy to see how that case advances the applicant’s position. It was a normal custody case not involving any question of relocation overseas. The child’s best interests were considered, but within the framework laid down in the Family Law Act 1975 (Cth).
87. The applicant also argued that no part of India or Bangladesh could be regarded as a meaningful or habitable relocation option possessing normal amenities. It would be unreasonable for the applicant to face relocation to either country. That is an extremely sweeping statement and no evidence was adduced to support it.
88. I conclude that in the full circumstances of the case, including the best interests of the child, the evidence does not establish the existence of exceptional or very unusual circumstances that would warrant approval of the application.
89. The decision under review is affirmed.
    

I certify that the 89 preceding paragraphs are a true copy of the reasons for the decision herein of Professor GD Walker, Deputy President

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

Renee Wallace, Associate

Date/s of Hearing: 8 September, 27 October, 15 December 2008 &

17 December 2008

Date of Decision: 13 February 2009

Solicitor for the Applicant: Mr R Solaiman, migration agent

Solicitor for the Respondent: Ms Z McDonald/Mr G Johnson, DLA Phillips Fox