Lavalu and Minister for Immigration and Citizenship [2010] AATA 229 (31 March 2010)

Last Updated: 1 April 2010

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2010] AATA 229

ADMINISTRATIVE APPEALS TRIBUNAL )

) No 2009/2980

GENERAL ADMINISTRATIVE DIVISION		)
	Re		LINA LAVALU

Applicant

And

MINISTER FOR IMMIGRATION AND CITIZENSHIP

Respondent

DECISION

Tribunal

The Hon. Brian Tamberlin QC, Deputy President

Date 31 March 2010

Place Sydney

Decision

The decision to refuse citizenship to Lina Lavalu is set aside and the application for citizenship is granted.

.....................[Sgd].....................
The Hon. Brian Tamberlin QC

Deputy President

CATCHWORDS

CITIZENSHIP – application for Australian citizenship by conferral – applicant born and residing in Tonga – Tongan adoption not recognised under Australian law – policy guidelines advise permanent visa usual expectation – consideration of the full circumstances of the case – whether in the best interests of the child – decision under review set aside.

Australian Citizenship Act 2007 ss 21(5), 24(2)

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

REASONS FOR DECISION

31 March 2010

The Hon. Brian Tamberlin QC, Deputy President

1. This is an application to review a decision of the Minister’s delegate made on 19 June 2009 refusing an application by Miss Lina Lavalu for Australian citizenship under s 24(2) of the Australian Citizenship Act 2007 (“the Act”).

FACTUAL BACKGROUND

2. Lina Lavalu was born in Tonga on 1 August 2006. At the time of her birth, neither of her biological parents who reside in Tonga was an Australian citizen or former Australian citizen. Lina Lavalu has never visited or resided in Australia or held an Australian visa.
3. Lina Lavalu was adopted in Tonga by Mr Sione Lavalu and Mrs Kathy Lavalu on 14 January 2009. Lina’s adopted mother, Mrs Kathy Lavalu, who was named as responsible parent on the application, lodged an application for conferral of Australian citizenship on behalf of Lina at the Dandenong Regional Office on 6 May 2009. Because Lina is aged under 18, the application was required to be assessed under s 21(5) of the Act, which permits conferral of Australian citizenship on a person under the age of 18 at the time the application is lodged. The application was refused and an application for review by this Tribunal was lodged on behalf of Lina. The issue for determination on the review is whether the application for citizenship of Lina Lavalu should be granted.

DECISION UNDER REVIEW

4. The findings made by Patricia Fallon of the Department of Immigration and Citizenship, which contain the reasons for the refusal, read as follows:

I have carefully considered the information contained in Ms Lina Lavalu’s application for conferral of Australian citizenship, the submitted supporting documentation and departmental records.
The applicant is under 18 years of age and meets the eligibility criteria in subsection 21(5) of the Act.
Under policy guidelines, children under the age of 18 applying for citizenship separately from a responsible parent would usually be approved if:

• the child is a permanent resident
• the child is living in Australia with the relevant responsible parent and
• the relevant responsible parent consents to the inclusion of the child in their application.

The applicant is not a permanent resident. While the applicant’s mother is an Australian citizen, her father is a permanent resident and both parents consent to the application, the applicant is not living with her parents in Australia.
Ms Lina Lavalu does not satisfy the policy requirements as she has never held any kind of Australian visa. The ACI states that the full circumstances of an applicant must be considered by decision-makers to determine whether the application warrants approval outside policy because of the exceptional nature of those circumstances. Moreover, the particular circumstances would need to be very unusual to warrant approval of an application outside policy.
Mr Sione Lavalu and Mrs Kathy Lavalu have stated that they have sought independent legal advice, as well as advice from this department and have found that there are no migration visa options appropriate to Ms Lina Lavalu’s circumstances. This was subsequently confirmed by Family Section in National Office in their email advice to Ms Bridget Wang.
While I have found that the applicant is eligible to become an Australian citizen under subsection 21(5) of the Act, the applicant does not meet the policy provisions which would usually lead to the approval of her application. Consequently, I have given consideration to whether the application warrants approval outside policy provisions because of the unusual circumstances of the case. Mr Sione Lavalu and Mrs Kathy Lavalu further stated that it is in the best interest of the applicant to be approved for Australian citizenship to avoid harsh conditions in Tonga, such as poverty and social problems in areas of education, health care, transport and housing. However, I am not satisfied that the circumstances in this case are sufficiently unusual to warrant approval of Ms Lavalu’s application for Australian citizenship. There might be benefits for the applicant if she were to become an Australian citizen, but she has never held a visa that permits her to enter Australia and there is no apparent reason for her to circumvent the usual migration channels. Accordingly, I recommend that the discretion under subsection 24(2) to refuse to approve the applicant becoming an Australian citizen be applied.

RELEVANT LEGISLATION AND POLICY

5. Section 21 of the Act is concerned with applications and eligibility for Australian citizenship, and s 21(5) provides that 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.
6. Subsection 24(2) provides that:

(2) The Minister may refuse to approve the person becoming an Australian citizen despite the person being eligible to become an Australian citizen under subsection ... 21(5)...

7. The Minister’s exercise of the discretion in s 24(2) is subject to the Australian Citizenship Instructions (“the ACIs”) and, at Chapter 5, those instructions states:

Person aged under 18 years (s 21(5))
...
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 requirements. In making a decision whether to refuse or approve an application, the primary considerations that need to be taken into account are the best interests of the child and the policy requirements set out below.
Best interests of the child
This consideration only applies if the child is or would be less than 18 years of age at the time of decision on the application and the child is living in Australia.
POLICY REQUIREMENTS
...
Applicants under the age of 16
Children under the age of 16 applying individually in their own right would usually be approved under s 24 if they meet the following policy requirements:

• 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, or
• 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 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 ...

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 applicant 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.

8. The Explanatory Memorandum to the Australian Citizenship Bill 2005 (Cth) provides an indication of the legislature’s intention that an application under s 21(5) of the Act would usually require the applicant to hold a permanent visa before a favourable decision is made. It relevantly states at page 23:

Person aged under 18
Proposed subsection (5) outlines the eligibility provisions for citizenship where a person is aged under 18 years.
It specifies that 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.
This new subsection is the equivalent of section 13(9) of the old Act.
As a matter of policy, applications considered under this subsection would usually be approved if the applicant meets the criteria in new subsection 2. That is, the applicant is a permanent resident ...

9. The Minister contends that the Tribunal should choose to follow the policy statements in the ACIs “unless there are cogent reasons to the contrary”: Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634 at 645.

EVIDENCE

10. Mrs Kathy Lavalu gave evidence that she is the adopted mother of Lina, the applicant, and that she is an Australian citizen. She first met her husband, Sione Lavalu, a Tongan national, in September 2001 in Australia and they were married in Tonga on 30 November 2006.
11. Mrs Lavalu first met Lina in July 2006 when visiting Sione in Tonga for two weeks. Mr Lavalu had arrived in Tonga in May 2006 in order to make an application for Australian permanent residence. On 1 August 2006, Lina was born and her biological parents were Sione’s niece and an unknown Tongan man. Mrs Lavalu took an immediate attraction to the young baby, but she noticed that the birth mother did not show affection or love towards Lina, and her husband explained that his niece was only a young child and did not want the baby. Mrs Kathy Lavalu returned to Australia a few days after Lina was born. She visited Tonga for a second time in November 2006 in order to marry Sione. During this trip she became concerned about the welfare of Lina and the ability of the birth mother to care for her, and she did not consider that Lina was being well looked after. She stayed two months in Tonga at that time and became very close to Lina as did her husband Sione. She discussed with her husband how much they loved Lina and they decided that they wanted her to live with them in Australia. She returned to Australia after two months. In August 2008 she was informed that the birth mother had said that she did not want the baby and was going to find someone to adopt her, and after discussing this with Sione she decided that they should take steps to adopt Lina.
12. Their application to adopt Lina under Tongan law requirements was granted and Sione and Kathy officially adopted Lina on 14 January 2009. Over the years Kathy said she grew very close to Lina and felt responsible for her welfare. Lina was issued with a new birth certificate in Tonga and she and Sione are listed as her parents. Lina is still living in Tonga.
13. Mr and Mrs Lavalu lodged an application for conferral of Australian citizenship on behalf of Lina on 6 May 2009. Mrs Lavalu states her belief that this application was refused because the Department thought that she and her husband were trying to circumvent the normal migration process, and that Lina should have permanent resident status before becoming a citizen. As a result, Lina remains in Tonga.
14. The Tongan adoption is not recognised under Australian law.
15. Mrs Kathy Lavalu says that having visited Tonga four times since Lina’s birth, she appreciates the poverty with which Lina is faced and she is worried about the quality of life Lina will experience if she remains in Tonga.
16. Lina currently lives in Tonga in a two bedroom house with 15 other occupants, all of whom are related to Sione Lavalu. The house is small, crowded and in poor condition. It is not maintained. There is no running water for showers or washing. The plumbing in the bathroom and toilet require urgent attention before it can function and the house is located near swamp land where there are many mosquitoes and diseases. Mrs Lavalu says that Lina is in danger of becoming severely malnourished if she remains in Tonga. There is a shortage of food and necessities and no good drinking water. From Australia, she and Sione send money regularly to Tonga to ensure that Lina is equipped with basic necessities and although the payments are of a modest amount they have been consistent. She says that not one of the 10 adults occupying the household that Lina lives in is officially employed, and that Lina gets only one meal a day and sleeps on a mat on the floor. Mrs Lavalu is concerned that if Lina remains in Tonga her opportunities will be severely limited as far as education and general development are concerned. She is also concerned about the lack of medical intervention available in Tonga.
17. In July 2009 Mrs Lavalu decided to give up her work and her life in Australia and go and live with Lina in Tonga. It was a major decision. However, due to family sickness she had to return to Australia after only two weeks in Tonga. Her fear is that if Lina remains in Tonga she will be denied the basic needs that every child deserves and she will have a better life in Australia. She says that if Lina comes to Australia she will become a member of a very loving and close-knit family. Mrs Lavalu has two daughters aged 22 and 24 and two grandchildren aged six and four. They are a close family. She has accommodation for Lina on arrival in Australia. She is also conscious of the need for Lina to retain her Tongan identity and cultural connections, and states that she will ensure regular contact with Lina’s Tongan family.
18. Her view is that if Lina is given the chance she would be able to reach her full potential in Australia, and she states that she will continue to provide for Lina’s basic needs.
19. Mrs Lavalu gave oral evidence and she was cross-examined in some detail as to the reasons why she wished to adopt Lina, and as to the close relationship which Lina has with the Tongan family with whom she has now lived for over three years. In her evidence, she said that in the one house in Tonga there were between 16 and 21 people living there, including 11 children as at August 2009. She was closely questioned as to the economic support that she provided. Her evidence was that she provided funds nearly every week in the order of approximately $200. She was unable to be precise about the amounts but she said it was in the order of $12,000 a year. The money going to Tonga was used to support all the family in Tonga. She said that Lina was more vulnerable than other children in the household because she did not have a mother or father to love and provide for her. She stated that the birth mother was not constantly living in the home and took no responsibility for Lina. In cross-examination she gave detailed evidence as to her contact with the Tongan family and as to the steps she would take in preserving the Tongan relationship. She did not see any significant problem in Lina leaving the Tongan family and coming to Australia, provided contact was kept with her Tongan culture. There was documentary evidence of Mrs Lavalu’s visits to Tonga.
20. I am satisfied that the evidence of Mrs Lavalu was given in an open and frank manner, and that it was not significantly diminished as a consequence of cross-examination. Accordingly, I accept her evidence without reservation that should Lina come to Australia to live and is granted Australian citizenship, she will be well looked after and that her life will be of a higher quality than if she were to remain in Tonga. In addition, I am satisfied that every effort would be made to maintain the relationship with the Tongan family, and this is particularly so having regard to the fact that Mr Lavalu is closely connected with Tonga and with his family there.
21. Mr Sione Lavalu also gave evidence and was cross-examined. His evidence is that he is an Australian permanent resident and a Tongan national. In May 2006 he left Australia for Tonga to lodge an application for Australian permanent residence. His wife Kathy, and Lina’s adopted mother, joined him in Tonga for two weeks. He says that Lina’s biological father is unknown. He noticed that the birth mother did not show affection at all towards Lina and did not want the baby and that Kathy and he could not have children of their own. Kathy returned to Tonga and they were married on 30 November 2006. He became concerned about Lina’s welfare and the ability of the birth mother to care for her. He noticed that she was not receiving adequate care in a number of respects. He noted that Kathy had grown close to Lina and he did not return to Australia until July 2007 as it was 14 months before his application for Australian permanent residence was approved. During this time he developed a relationship with Lina and looked after her for the first 11 months of her life. In August 2008 he and Kathy received a telephone call from the birth mother who said that she did not want Lina and was looking for someone to adopt her. Lina became the adopted child of Kathy and Sione as a result of an adoption under Tongan law on 14 January 2009. Having grown up in Tonga he knows the poverty Lina is experiencing and will continue to experience. He gives details of the inadequate accommodation at the present time in Tonga for Lina. He referred to the money sent to the family in Tonga. He says that he and Kathy had already begun to make necessary arrangements to prepare for Lina’s arrival in Australia.
22. In the course of cross-examination, he said he returned to Tonga and saw Lina on a number of occasions between July 2007 and August 2009. There were about four such visits for about two to three weeks each. He said that Lina spoke Tongan in the family home and that there were a large number of relatives living with her. He was also cross-examined about a social worker’s report in relation to the adoption which is in evidence. His evidence was that there were about 12 people in addition to Lina living in the house when he was there in August 2009.
23. The money sent to Tonga was not just to support Lina but other people in the household as well. He further mentioned that most of the children living in the house were related either directly or indirectly to Lina. Under re-examination, he referred to a Tongan relative living in Orange who is his aunt. He said the house in Tonga was a three bedroom house and the children all sleep in the lounge room.
24. The social worker’s report referred to in the evidence of Mr Lavalu is dated 12 August 2009 and is made by Mele Lupe Fohe, a psychiatric social worker and it is on the letterhead of the Ministry of Health of Tonga. Ms Fohe conducted a number of interviews with Kathy and Sione Lavalu and interviewed Lina and the birth mother. She has made a home visit and other investigations. She noted that there were 21 persons living in the household and identifies them. She says that the premises are a two bedroom brick house with a toilet and bathroom in the middle of a swamp with no sufficient fencing around the house and she says it is a breeding ground for mosquitoes and disease. She refers to Lina and to a conversation with her. She states that Lina is physically and mentally healthy and refers to an evident bond between Kathy and Lina. She refers to the financial support provided by Sione and Kathy and the fact that not one of the adults living in the house in Tonga is officially employed.
25. There is also in evidence a letter from the Solicitor-General of Tonga as guardian ad litem for Lina dated 11 August 2009 stating that Mr and Mrs Lavalu had applied to adopt the child. She had interviewed them and the natural mother of the child and, after these interviews, she recommended that the child be adopted by Mr and Mrs Lavalu. She sets out the reasons why the adoption was recommended. This letter was sent to the Minister for Immigration and Citizenship.
26. Both Mr and Mrs Lavalu were open and frank and I have no hesitation in accepting their evidence as to their affection and preparedness to look after Lina, their adopted child under Tongan law. I also accept that they will maintain the ties with the Tongan family for the benefit both of themselves and for Lina. Evidence as to their caring for Lina and their genuine concern, and also the objective adverse circumstances in Tonga, are strongly supported by numerous documents tendered including those specifically referred to above.

SUBMISSIONS OF THE RESPONDENT

27. The Respondent Minister contends that the correct and preferable decision is to refuse the applicant Australian citizenship.
28. The Minister contends that the Tribunal must consider the unique circumstances of each case and the relevant policy statements. These statements are lawful statements of policy, which in the absence of cogent reasons should be applied by the Tribunal.
29. The Minister points out that Lina does not hold, and has never held, a permanent visa, and that at the time of her application for Australian citizenship she was in the care of a relative in Tonga. The Minister says that Lina would not suffer significant hardship or disadvantage as a consequence of a decision to refuse her application for conferral of Australian citizenship.
30. The Minister states that the Hague Convention on Protection of Children and Co-operation in Respect of Intercountry Adoption (“Hague Convention”) must be taken into account. This provides for arrangements for approval by a competent authority in a State or Territory, where an adoption is carried out in a Hague Convention country, such as Australia. There are standards of that Convention which require an adoption compliance certificate. Tonga is not a Contracting State under the Hague Convention and accordingly these protections are not applicable. The Minister says that the ACI guidelines contemplate that a child in Lina’s circumstances may apply for citizenship by conferral, but that the policy is that this should only take place after the child is granted a permanent visa. The Minister referred to a report in relation to overseas adoption in Australia and relied on the Convention’s checks and balances in the adoption system as a ground for exercising a discretion in favour of refusing the application for citizenship. The Minister says that the Hague Convention by requiring matters to be fulfilled provides a safeguard to ensure the protection of an adopted child, and submits that it is in the best interests of the child that these safeguards should be implemented.
31. In substance, the Minister’s case is that there are sound reasons for the requirement that a child adopted overseas, outside of the Hague Convention arrangements, should hold a permanent visa prior to the conferral of Australian citizenship, because this requirement provides an ascertainable benchmark for decision makers as to the legitimacy of the child’s adoption and as to the suitability of the adoptive parents. This process is likely to lead to consistent decision making and guard against illegal and ill-considered adoptions overseas.
32. The Minister acknowledges that the Tribunal has letters of adoption from Tonga, but contends that in the absence of approval for adoption in New South Wales and an adoption visa, the circumstances surrounding the applicant’s adoption have not been properly scrutinised. The Minister also points to the requirements that to obtain an adoption visa the applicant must meet certain health requirements.
33. The Minister acknowledges that it is necessary to consider the “full circumstances” of the case to determine whether the application warrants approval in all the circumstances. The Minister says that in this case, Lina has had no close connection with Australia which would warrant the grant of citizenship in the present case. She has never been in Australia and has lived all her life in Tonga. The Minister says that this absence of a formal or informal connection to the Australian community is a weighty factor against granting citizenship. The Minister also says that there will be significant hardship and disadvantage to Lina if she were to leave the Tongan culture and family and come to Australia. The Minister submits that being in the care of the same family members in the same house from birth to the current day points to her strong attachment to Tonga. The Minister also says that there is no evidence before the Tribunal that the adoptive parents will not be able to continue to maintain the same level of contact with Lina as they presently do.
34. The Minister also refers to the Convention on the Rights of the Child, Articles 3 and 9 of which require that in all actions concerning children undertaken by administrative authorities, the best interests of the child shall be a primary consideration. The Minister submits that the best interests of Lina, whilst a relevant consideration, is not a primary consideration in this matter. This is said to be so because the ACI guidelines state that the best interests of the child consideration only applies if the child is living in Australia. The Minister says that Lina is a Tongan national born and raised in Tonga and speaks only the Tongan language fluently, and has consistent care from the same group of people in Tonga.
35. The Minister also says that a finding that the applicant’s living conditions will be better in Australia than in Tonga is insufficient of itself to support the conclusion that it is in Lina’s best interests to depart Tonga permanently. The Minister also points out that there is no psychological evidence before the Tribunal of the likely impact of a move to Australia on Lina. The Minister says that the level of attachment and likely impact of separation is unknown and notes that she continues to reside in the home of her biological mother.
36. The Minister says that permanent relocation to Australia may expose Lina to uncertainty and a significantly different social and familial environment, and that there may be some doubts as to the rights which flow from her relationship to the adoptive parents whilst in Australia.
37. For the above reasons, the Minister contends there is insufficient evidence before the Tribunal to find that, on balance, it is in Lina’s best interests to permanently relocate from Tonga to Australia.

REASONING OF THE TRIBUNAL

38. Subsection 24(2) of the Act is wide and unfettered. I am satisfied that the relevant guidelines must be given weight in the present case: Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634 at 640. In relation to the Minister’s submission that the best interests of the child is a relevant but not primary consideration, I do not consider it necessary to resolve this question.
39. It is common ground that significant weight in this case must be given to the best interests of Lina, who is only three years of age.
40. I am satisfied that there is a genuine, strong affection between Mrs Lavalu and her husband with Lina, and that she will be well cared for in a loving family by them. I am also satisfied that she has been lawfully adopted according to the law and procedures of Tonga, and this lawful adoption confirms the commitment to Lina’s welfare on the part of the adoptive parents. The supporting evidence as to their deep attachment to Lina and concern about her welfare reinforces this conclusion, as does the continuing financial sacrifices made by them to assist Lina and the family in Tonga.
41. Mrs Lavalu is an Australian citizen and her husband is a permanent resident. The evidence shows they have they have to date retained a strong relationship with the Tongan family and with Tongan culture, and I consider this will be maintained.
42. I also consider that the primary concern of both adoptive parents is to provide in the way they see best for Lina’s material, emotional and developmental needs. I do not consider that their aim in adopting and wanting to educate and bring up Lina in Australia is directed to satisfy some subjective desire on the part of Mrs Lavalu simply to have another child.
43. I accept that after three years Lina has strong connections with the Tongan family in which she has been brought up with to date, and with Tongan culture, but I do not consider this will be broken up if she is granted citizenship. Lina is at an age where language and cultural background is not likely to present any significant problem. The adoptive parents say, and I accept, that they value and will keep up this cultural and family relationship.
44. The weight of the evidence is that the birth mother does not have any strong relationship with Lina, and it tends to indicate that she has not cared for her to any significant extent, or built up any close emotional bond.
45. There is little doubt on the detailed and extensive evidence before me that from an educational, medical and hygiene viewpoint there will be far greater advantages for Lina in Australia than in Tonga. This tends to strongly support the grant of Australian citizenship in her interest. The inadequacies in these respects in Tonga are in stark contrast to what is likely to be the position in Australia.
46. In addition to these material benefits, I consider that the evidence indicates that Lina would be brought up in a caring and comfortable home in Australia. These considerations lead me to the conclusion that the advantages to Lina in obtaining Australian citizenship far outweigh the disadvantages contended for by the Minister. The best interests of Lina therefore are strongly in favour of the grant of citizenship.
47. There are, however, other matters raised by the Minister which I consider relevant and I have taken them into account.
48. The first is the Act by subsequent amendment in its present form now requires that an applicant in Lina’s position should be a permanent resident. This provision does not relate to Lina. However, it is said that it is a significant indication in favour of refusing the application for citizenship.
49. I accept that this subsequent change in law is a relevant factor, but in my view it is far outweighed by considerations in this case to Lina’s best interests.
50. In this case the relevant decision to grant citizenship is based on very unusual circumstances which warrant the exercise of the broad discretion in favour of the applicant.
51. The Minister also submits that since Lina has a settled life in Tonga with a large family, it is better to preserve the status quo so that this settled life embedded in Tongan society and culture is preserved and not disrupted. Given the evidence as to the nature of accommodation in Tonga, the lower educational opportunities, the health and hygiene problems, I do not accept this submission.
52. Next it is said by the Minister that the adoption in Tonga is not in compliance with Australian law as to adoption procedures and process, and that Lina has been deprived of the safeguards that Australian law provides. The Minister says that in the present case the adoption in Tonga has not been carried out in accordance with the Hague Convention. Considerable weight it is said should be given to the fact that Tonga is not a Convention country. The Minister said that there is a deprivation of protection and international safeguards and that this weighs significantly against the grant of citizenship to Lina.
53. I do not agree. There is nothing in the circumstances in this case to suggest that the Tongan adoption and investigations were not satisfactory. Nor was there any evidence in the material before me which would support any reasonable argument to substantiate a conclusion that the parents were unsuitable, or that Lina would be adversely affected by the grant of Australian citizenship or the bringing of Lina to Australia. I am satisfied that the best interests and welfare will be protected if citizenship is granted.
54. The Minister submits that unlike other cases there was no evidence from a qualified professional psychologist or social worker as to the likely impact of Lina leaving Tonga and coming to live in Australia, with the consequence of substantial adjustment to her life, and the Minister says that this requires caution on the part of the Tribunal. In substance it is said that the welfare of Lina has not been sufficiently explored.
55. I have taken into account that there is no such evidence and I accept that some caution should therefore be exercised in deciding the citizenship application. However, on the evidence before me and having regard to the documentation, I am satisfied that there is sufficient evidence on which to make a determination as to the best interests of Lina.
56. The Tongan adoption is also challenged by the Minister on the submission that Lina’s family in Tonga may have felt obliged to allow the adoption because of the past financial support received from the adoptive parents. The suggestion is that no weight should be given to the Tongan adoption as a consequence of the fact that the Tongan family supporting the adoption had received financial benefits and anticipated the continuance of that position.
57. I have taken this speculation into account but I am not persuaded that it played any role whatsoever in the family approval of the adoption. No doubt the basic continuing financial support is gratefully received by the family. In my view, on the material before me, there is nothing to warrant the suggestion that the adoption was somehow “bought”. My conclusion is that the support came from a genuine desire to assist the Tongan family in the difficult living conditions and lack of facilities strongly evidenced in the material.
58. A further matter raised by the Minister is that in the event citizenship is granted and Lina comes to Australia, her legal status would be uncertain because her Tongan adoption would not be recognised as valid by Australian law. This submission is related to the submission that she will be deprived of the protection of the Hague Convention if citizenship were granted and she came to live in Australia without any definite status as to her rights and legal position.
59. It has not been shown that in the circumstances of Lina’s case there has been any insufficiency of investigation or lack of legal process arising from the Tongan adoption. Furthermore, possible problems as to status suggested by the Minister are speculative and hypothetical. It is to be noted that reference has been made to provisions for “parenting orders” under Part 7 of the Family Law Act 1975 which could bear on the suggestion by the Minister. I do not consider there is sufficient doubt or significant problems raised as to the status and entitlement of Lina if she comes to Australia such as to warrant the refusal of the grant of citizenship. There is nothing to suggest that when the circumstances of Lina are fully investigated there will be any lack of protection or responsibility for her welfare as a consequence of the granting of citizenship and her coming to live in Australia. Having regard to all the material before me and considering the objections raised by the Minister both individually and cumulatively, I am persuaded that the decision below should be set aside.

DECISION

60. For these reasons, I decide that the correct and preferable decision is that the decision to refuse citizenship to Lina Lavalu should be set aside and that the application be granted.
    

I certify that the 60 preceding paragraphs are a true copy of the reasons for the decision herein of The Hon. Brian Tamberlin QC, Deputy President

Signed: .........................[Sgd]..........................

Associate: Jennifer Wong

Dates of Hearing 27 October and 4 December 2009

Date of Decision 31 March 2010

Counsel for the Applicant Prof K Rubenstein

Solicitor for the Applicant Clothier Anderson & Associates

Counsel for the Respondent Mr G Johnson

Solicitor for the Respondent Clayton Utz