Lee and Minister for Immigration and Citizenship [2010] AATA 1019 (17 December 2010)

Last Updated: 27 January 2011

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2010] AATA 1019

ADMINISTRATIVE APPEALS TRIBUNAL )

) No 2010/2244

GENERAL ADMINISTRATIVE DIVISION		)
	Re		Dar Ro Lee

Applicant

And

Minister for Immigration and Citizenship

Respondent

DECISION

Tribunal

Senior Member Jill Toohey

Date 17 December 2010

Place Sydney

Decision

The decision under review is affirmed.

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

CATCHWORDS

CITIZENSHIP – application for citizenship by conferral – applicant now 18 years – whether applicant’s circumstances unusual – Tribunal not satisfied applicant’s circumstances warranted departure from policy that permanent residence a requirement for conferral of citizenship – decision under review affirmed

Australian Citizenship Act 2007ss 21, 22, 24,

Migration Act 1958

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

Yun Seon Pak and Department of Immigration and Citizenship [2010] AATA 157

REASONS FOR DECISION

17 December 2010	Senior Member Jill Toohey
Background

1. Da Ro Lee is a citizen of South Korea. He came to Australia with his younger sister in November 2002, when he was ten years old, and has lived here since. Their parents joined them approximately four years ago.
2. Mr Lee held a student visa until 15 March 2009. In the meantime, in August 2006, he applied for a business (long-stay) visa as his mother’s dependent. That application was ultimately refused by the Migration Review Tribunal in November 2007.
3. On 12 March 2009 Mr Lee lodged an application for a protection visa as his father’s dependent. That application was ultimately refused by the Refugee Review Tribunal in August 2009.
4. On 28 October 2009, Mr Lee applied for citizenship pursuant to s 21(5) of the Australian Citizenship Act 2007 (the Citizenship Act). He was aged 17 at the time. On 15 May 2010, the Minister for Immigration and Citizenship (the Minister) refused his application. Mr Lee seeks review of that decision.

The legislation

5. Applications for citizenship are made under s 21(1) of the Citizenship Act. As a general rule, an applicant must be a permanent resident and satisfy the general resident requirement in s 22.
6. Citizenship may be conferred upon an eligible person including a person who is under 18 at the time of his or her application: s 21(5)
7. If a person applies for citizenship, the Minister must, in writing, approve or refuse the application: s 24(1)
8. The Minister may refuse to approve an application for citizenship despite a person being eligible in accordance with the Act: s 24(2)

The policy

9. The Act gives no guidance as to how the discretion to refuse an application for citizenship should be exercised. However, guidance in the form of published policy is found in the Australian Citizenship Instructions as amended from time to time. The version applicable here is the Australian Citizenship Instructions 2007 (the Instructions).
10. There is no dispute that, following Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634, the Tribunal should apply the Instructions unless there are cogent reasons not to do so.
11. At the time of Mr Lee’s application, the Instructions in force were those issued on 21 September 2009. In relation to an applicant under the age of 18, they stated:

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

 

12. The policy guidelines in the Instructions stated:

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

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

...

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

13. In Attachment B, significant hardship and disadvantage are defined as:

significant of consequence; important or momentous

hardship conditions of life difficult to endure; something that causes suffering or privation

disadvantage an unfavourable circumstance, thing, person; injury, loss or detriment

14. To demonstrate significant hardship or disadvantage, a person would normally be required to show some or all of the following circumstances:
    • inability to gain employment on the grounds that the employment is restricted to Australian citizens and that comparable alternative employment is not available
    • difficult of international travel because the person cannot obtain a passport from their country of nationality/citizenship, or are unable to use a passport issued by that country for safety or similar reasons
    • academic (eg. research, academic scholarship) or other (sporting etc) potential is being limited or restricted, because the opportunities to reach that potential are available only to an Australian citizen, to the extent that it causes significant hardship.
15. The Instructions have been amended since Mr Lee’s application but the relevant provisions remain the same.

Mr Lee’s evidence

16. Mr Lee concedes that he does not meet the residency requirements in the Act. However, he asks that his application be approved on the ground of what he says are his unusual circumstances.
17. Mr Lee gave evidence before the Tribunal. He is now 18. He lives with his parents and his sister. He thinks that children are usually better off living with their parents but, even if his parents were to return to South Korea, he would want to stay here. He has few memories of life in South Korea and Australia feels like his home now. He has made friends here and grown up here. He wants to stay and make his life here.
18. Mr Lee has just completed his Higher School Certificate (HSC) exams and is waiting on his results. He hopes to study accounting. If he fails to achieve the HSC score needed for entry into university, he hopes to start studying accounting at TAFE and enter university from there.
19. Mr Lee says he will not be able to pursue his studies in South Korea because of his lack of Korean language skills. In evidence, he said he speaks Korean at home with his parents, both of whom speak little English, although they only discuss “domestic” matters. He occasionally speaks by telephone with his Korean grandparents, but otherwise he speaks English with his sister and his friends.
20. Dr Seong-Chul Shin, senior lecturer in the Korean studies program at the school of languages and linguistics at the University of New South Wales, assessed Mr Lee’s capacity to communicate in the Korean language, in particular his oral, comprehension and writing skills. Dr Shin reports that Mr Lee’s “current level of written language skills is an area that can be improved and approximates that expected of a student at the Korean equivalent of lower primary school”; his spoken language is slightly better but “at mid-primary level at best”. Dr Shin considers Mr Lee’s level of competency makes his objective of studying accountancy in Korea “practically unrealistic”.
21. Dr Shin annexes to his report a document titled ‘The education system in South Korea with regard to the difficulties it poses in the case of entry at secondary school level by a student wholly educated in Australia’ by Ken Wells who, it appears from the resume attached, is currently Visiting Professor of Korean History at the University of California in Berkley. The report documents the competitive nature and high cost of education in Korea and the disadvantage that a student without sufficient language skills would face when seeking entry into university.
22. Mr Lee also refers to the military service that he would be required to undertake if he returns to South Korea. He says he is against war and fears that recent tensions between North and South Korea could lead to war.

Mr Lee’s visa status

23. Mr Lee currently holds a Bridging Visa E, the effect of which is to allow him to remain in Australia pending the outcome of these proceedings. He finds himself in a difficult situation because his substantive student visa expired in March 2009 and he is barred from applying for a further substantive visa by virtue of s 48 of the Migration Act 1958 (the Migration Act) which provides that:
    • (1) A non citizen in the migration zone who:
      • (a) does not hold a substantive visa; and

...

(b)(i) after last entering Australia was refused a visa, other than a refusal of a bridging visa or refusal under section 501, 5012A or 501B, for which the non citizen has applied (whether or not the application has been finally determined);

...

may, subject to the regulations, apply for a visa of the class prescribed for the purpose of this section, but not for a visa of any other class.

24. The Minister contends, and Mr Lee does not dispute, that he is barred by s 48(1)(a) from applying for a further substantive visa. His status is, therefore, precarious in the sense that, if this application is refused, he has no means by which to remain in Australia and would have to leave. His parents, whose presence in Australia depends on his, would also have to leave.
25. It is submitted for Mr Lee that he is in this situation through no fault of his own, that it would have been open to him to apply for a further student visa in March 2009 and, had he done so, he would not be subject to the adverse effect of s 48.

Consideration

26. Mr Lee concedes that, as he is no longer a child, his best interests as a child are no longer a primary consideration in determining his application. However, I accept that, in considering the full circumstances of his case, I should take into account that he was still a child when he applied, and he only turned 18 in May this year.
27. I accept that Mr Lee’s Korean language skills have deteriorated since being in Australia. However, it is not the case that he has lost his language skills. He speaks Korean at home with his parents. I accept his submission that oral and written communication skills are different and he has not had to use his written language skills to the same extent as his oral communication skills. I accept that he has only spoken Korean at home and has not been educated in that language.
28. On the other hand, I accept the Minister’s submission that Mr Lee lived in South Korea until he was ten and he has continued to speak Korean at home. He is not in the same position as a person who came to Australia as a very young child and who has virtually lost their use of the language. I do not accept Mr Lee’s submission that it would be impossible for him to acquire sufficient language skills again to ever undertake higher education in South Korea. I accept the Minister’s submission that he has a solid foundation for picking up his written and oral language skills again.
29. I accept that Mr Lee may face disadvantage in employment and education on returning to South Korea. I accept that he would find it difficult to leave Australia, which has become his home, and resume life in South Korea. It would inevitably be disruptive. However, that is an inevitable consequence of the time he has spent here.
30. In Yun Seon Pak and Department of Immigration and Citizenship [2010] AATA 157, Deputy President Buchanan affirmed a decision to refuse Ms Pak citizenship. She had lived in Australia since she was one year old and applied for citizenship just before her 18th birthday. As Deputy President Buchanan noted (at paragraphs 10 and 11), the principal submission advanced for Ms Pak relied on her virtually unbroken residence in Australia, that she had completed all her schooling here and had formed close personal ties here. He did not consider those matters amounted to either exceptional or very unusual circumstances.
31. Mr Gu, who appeared for Mr Lee, correctly pointed out that the Instructions applied in Pak required an applicant to demonstrate “exceptional” or “very unusual” circumstances. However, even allowing that an applicant is now only required to demonstrate “unusual” circumstances, the principal remains that circumstances that arise by virtue of effluxion of time are unlikely to satisfy the policy requirements.
32. I have considered Mr Lee’s submission in relation to compulsory military service but I am not satisfied that there is anything unusual about that requirement. It appears that all South Korean men are required to undergo military service. I accept that Mr Lee does not like the prospect of service, much less the prospect of war, but I note he did not press this point with any force. I am not satisfied that there is anything exceptional or very unusual about the requirement that he undergo military service or about his response to it.
33. In relation to Mr Lee’s visa status, it is unfortunate that he is now barred by s 48 of the Migration Act from making a further application for a substantive visa. The effect is that, if this application does not succeed, his bridging visa will expire and he will be required to leave within a very short time. However, I accept the Minister’s submission that citizenship is not a substitute for permanent residence or a means of resolving difficult or uncertain immigration status.

Conclusion

34. As the language of the Act and the Instructions make clear, citizenship is not conferred lightly. I am unable to find anything unusual or exceptional in Mr Lee’s circumstances that mean his application should be approved.
35. I affirm the decision under review.
    

I certify that the 35 preceding paragraphs are a

true copy of the reasons for the decision

herein of Senior Member Jill Toohey

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

Diana Weston Associate

Date of Hearing 10 December 2010
Date of Decision 17 December 2010

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

Representative for the Respondent Mr Rhys Bower, Clayton Utz