FEDERAL COURT OF AUSTRALIA

Hong v Minister for Immigration and Citizenship [2011] FCA 842

ON APPEAL FROM THE ADMINISTRATIVE APPEALS TRIBUNAL

THE COURT ORDERS THAT:

1.    The application of Nhayoung Hong to the Administrative Appeals Tribunal in No 2010/2156 be remitted to the Tribunal for further decision.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. The text of entered orders can be located using Federal Law Search on the Court’s website.

ON APPEAL FROM THE ADMINISTRATIVE APPEALS TRIBUNAL

THE COURT ORDERS THAT:

1.    The decisions of the Administrative Appeals Tribunal in Nos 2010/2154 and 2010/2155 be affirmed and the appeal to this Court be dismissed.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. The text of entered orders can be located using Federal Law Search on the Court’s website.

ON APPEAL FROM THE ADMINISTRATIVE APPEALS TRIBUNAL

ON APPEAL FROM THE ADMINISTRATIVE APPEALS TRIBUNAL

REASONS FOR JUDGMENT

Introduction

1    These proceedings concern three Korean children, Nhayoung Hong (born in January 1993, now 18 years old), Hyerhim Hong (born in April 1996, now 15 years old) and Sungjohn Hong (born in March 2001, now 10 years old).

2    The proceedings take the form of appeals from decisions of the Administrative Appeals Tribunal (“the AAT”) made on 12 April 2011 in which the AAT affirmed decisions of a delegate of the Minister for Immigration and Citizenship (“the Minister”) not to confer Australian citizenship upon any of the three children.

3    By way of background, in its decision concerning Nhayoung Hong, the AAT recorded:

2.    Ms Hong was born in South Korea in January 1993 and is aged 18. She arrived in Australia with her parents in July 2005 on a subclass 976 Electronic Travel Authority (temporary) visa – a tourist visa – valid for three months. Three months later, she applied for a subclass 457 Business (long stay – temporary) visa as a dependant of her father and was granted a bridging visa in association with her application. Her father’s application was refused and he applied for a review by the Migration Review Tribunal which affirmed the decision. Ms Hong then applied for a Protection Class XA visa as a dependent of her mother and was granted a bridging visa in association with this application. There followed a series of other applications by her parents and dependent applications by Ms Hong and associated bridging visas. None of her parents’ applications have been successful. (Ms Hong’s current bridging visa expires 28 days after the resolution of her application for citizenship.)

4    Similar, unsuccessful, applications for visas of various kinds, depending on applications made by their father or mother, were made by Hyerhim and Sungjohn. In the case of Nhayoung Hong, the fact that an unsuccessful application was made by her for a protection visa (as a dependant of her mother), and that she now holds a Bridging Visa E, has a legal and practical significance that will be discussed in due course.

5    Following their earlier, unsuccessful, applications for various forms of visa, on 2 October 2009 each of the children applied under s 21 of the Australian Citizenship Act 2007 (Cth) (“the Citizenship Act”) for Australian citizenship by conferral. At that time s 21(5) of the Citizenship Act provided:

(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.

6    The applications were each refused under s 24 of the Citizenship Act by a delegate of the Minister (see s 53 of the Citizenship Act) on 11 May 2010. On 31 May 2010 each of the children applied to the AAT for review of the delegate’s decision.

7    The AAT is established under the Administrative Appeals Tribunal Act 1975 (Cth) (“the AAT Act”). It was created to provide an independent review of decisions made by or on behalf of the executive government in cases where Parliament decided such a review was to be available. Section 52(1)(b) of the Citizenship Act provides a right of review in the present cases. On such a review the AAT has available to it all the powers and discretions conferred by the Citizenship Act on the Minister and the Minister’s delegate. Section 43(1) of the AAT Act provides:

(1)    For the purpose of reviewing a decision, the Tribunal may exercise all the powers and discretions that are conferred by any relevant enactment on the person who made the decision and shall make a decision in writing:

(a)    affirming the decision under review;

(b)    varying the decision under review; or

(c)    setting aside the decision under review and:

(i)    making a decision in substitution for the decision so set aside; or

(ii)    remitting the matter for reconsideration in accordance with any directions or recommendations of the Tribunal.

8    In the present cases the AAT affirmed each of the decisions that Nhayoung, Hyerhim and Sungjohn should not have Australian citizenship conferred on them. The present proceedings arise from the right given by s 44 of the AAT Act for a limited appeal to this Court. Section 44(1) of the AAT Act provides:

(1)    A party to a proceeding before the Tribunal may appeal to the Federal Court of Australia, on a question of law, from any decision of the Tribunal in that proceeding.

9    The statutory condition, that an appeal be “on a question of law”, has been described as identifying the subject matter of an appeal and confining the ambit of an appeal (Brown v Repatriation Commission (1985) 7 FCR 302 at 304). The statutory limitation, that an appeal to this Court is confined in subject matter and ambit to a question of law, is an important one to bear in mind. The right of review provided to the AAT is an important civic right in Australia with respect to many categories of decisions. It is available to citizens and non-citizens alike. It provides an independent review of the merits of a decision, permitting the AAT to make the “correct or preferable” decision or “objectively the right one to be made” (Drake v Minister for Immigration and Ethnic Affairs (1979) 46 FLR 409 (“Drake”) per Bowen CJ and Deane J at 420–421 and per Smithers J at 429–430). However, the merits review available in the AAT is not simply the first in a series of such reviews. It is intended by Parliament to be a fully effective, but final, review. An appeal to this Court serves a different function. It allows the identification of legal error and, where appropriate, its correction or remittal of the matter to the AAT for further attention (AAT Act, s 44(5)). Although this Court may make findings of fact in some such appeals it may only do so in limited circumstances and for limited purposes, which do not arise for consideration in the present cases.

10    It will become apparent from the discussion which follows that in the case of Nhayoung Hong I am satisfied that the AAT made a legal error and that her case should be remitted to the AAT for further attention. It does not appear to me that it will be necessary for the AAT to take further evidence but that will be a matter for the AAT. In the cases of Hyerhim and Sungjohn Hong no legal error has been identified. Indeed, no question of law was sufficiently identified. Although their appeal might have been struck out on that basis, it is preferable that a final (rather than interlocutory) order should be made. Accordingly, the decision of the AAT will be affirmed in their cases and their appeal to this Court dismissed.

The AAT proceedings

11    The applications for Australian citizenship which were made by Nhayoung, Hyerhim and Sungjohn under s 21 of the Citizenship Act were required to be determined under s 24 of the Citizenship Act. Section 24 first requires that an applicant be eligible (as they were, each being under 18 years old when their application was made) to become an Australian citizen. Section 24 then requires that a written decision be made approving, or refusing to approve, the eligible applicant becoming an Australian citizen. In the circumstances applying to each of the three children the Citizenship Act does not, whether in s 24 or elsewhere, state what factors may, or should, be taken into account in deciding whether to approve, or refuse to approve, Australian citizenship. The AAT correctly appreciated that, in those circumstances, the Minister (and the Minister’s delegate) and the AAT itself had a general discretion as to whether the applications for citizenship should be approved or refused (see also Budilay v Minister for Immigration and Citizenship [2011] FCA 508 (“Budilay”) at [6]–[8]).

12    Even though the Citizenship Act does not, at least in the circumstances of the three present applications, confine the discretion whether to approve or refuse citizenship, the Minister has published a set of instructions to provide guidance to decision-makers. Those instructions, the Australian Citizenship Instructions (“the ACIs”), were discussed in Budilay. It is legitimate that such instructions should be issued by the Minister. Although they do not bind the AAT, it was appropriate for the AAT to take them into account unless there was some good reason not to do so. In Drake Bowen CJ and Deane J said (at 420):

… an administrative officer charged with the exercise of discretionary power will be entitled, in the absence of specifically defined criteria or considerations, to take into account government policy. The propriety of paying regard to general policy considerations is most evident in a case such as the present where there are no specified statutory criteria for the exercise of the discretionary power and where the power is entrusted to a Minister of the Crown responsible to Parliament.

and (also at 420):

In a matter such as the present where it was permissible for the decision maker to take relevant government policy into account in making his decision, but where the Tribunal is not under a statutory duty to regard itself as being bound by that policy, the Tribunal is entitled to treat such government policy as a relevant factor in the determination of an application for review of that decision.

13    It was not suggested in the present case that it was impermissible or inappropriate for the AAT to take the ACIs into account to the extent that they applied to the three applications it was considering. No legal error was made in the present case when it did so. The AAT distilled the significance of the ACIs for the purpose of the matters before it in the following way in the case of Nhayoung Hong at [11]–[12]:

11.    Thus the Instructions relevantly identify three primary considerations to be taken into account by the decision-maker: the best interests of the child, the legislative requirements and the policy guidelines. Ms Hong was aged under 18 at the time she made an application and therefore meets the legislative requirements in s 21. Ms Hong does not satisfy the policy guideline requiring that she hold a permanent visa. However, consideration must also be given to whether she would suffer significant hardship or disadvantage if her application for citizenship is not approved. Where the policy guidelines are not met, the decision-maker must consider the full circumstances of the case, including the best interests of the child, to determine whether the application should, nevertheless, be approved because of the unusual nature of the circumstances.

12.    The issues before the Tribunal are, therefore, the best interests of the child, whether Ms Hong would suffer significant hardship or disadvantage if her application for citizenship is not approved, and whether there are unusual circumstances in her case warranting consideration of her application outside the stated policy requirements.

(The same distillation applied in the case of Hyerhim and Sungjohn Hong.)

14    It was not submitted on the present appeals that the AAT misunderstood the ACI’s or wrongly identified the matters which, in accordance with the ACI’s, required its specific attention. I am satisfied that the decision of the AAT about those specific matters involved no legal error.

15    The tests distilled by the AAT were then required to be applied in the light of the evidence before it. Nhayoung Hong had provided a written statement to the Minister, provided a further statement to the AAT and gave oral evidence to the AAT. Hyerhim Hong provided a written statement to the AAT. The AAT referred, in its decisions, to particular aspects of the written and oral evidence provided to it by Nhayoung and Hyerhim. In addition, evidence was given to the AAT in support of all three applications by a psychologist, Dr Jung Sook Kim, the children’s parents (Mr Hong and Ms Kim), a friend of the Hongs, Mrs Lee (who also employed Ms Kim full-time and Mr Hong part-time) who had offered to accommodate and support the three Hong children if their parents were required to return to Korea, and a Ms An who did not know the Hong family but who was invited to express opinions as a Korean national who had obtained Australian citizenship in 2010. In each case, the evidence given was summarised by the AAT. I did not understand there to be any serious challenge to the summary which was given although some submissions were made to the effect that insufficient weight had been given to particular aspects of the evidence.

16    The principal focus of attention in the appeals to this Court was upon the use to which the AAT had put the evidence of Dr Kim. Dr Kim provided a written report with respect to each of the children, based upon interviews with them. She expressed opinions about their psychological state and about potential difficulties which they would encounter in the Korean education system if required to return to that country. It may be doubted that many of the opinions expressed would have been admissible had the AAT been required to strictly apply the rules of evidence. However, the AAT is not restricted in that way but “may inform itself on any matter in such manner as it thinks appropriate” (AAT Act, s 33(1)(c)). It is apparent that the AAT gave appropriate weight and consideration to the whole range of opinions expressed by Dr Kim, both in her written reports and in oral evidence given directly to the AAT.

17    Attention should be drawn to some particular factual findings concerning Nhayoung Hong, which were expressed by the AAT in the following way:

38.    Ms Hong is not a permanent resident. The issues for the Tribunal in her case, therefore, are whether, having considered the full circumstances of the applicant’s case and her best interests (as a child), the policy requirement for permanent residency should be waived because the applicant would otherwise suffer significant hardship or disadvantage and the application warrants approval because of the unusual nature of those circumstances.

39.    Ms Hong is in her final year of school and is due to complete her HSC (Higher School Certificate) later this year. The evidence of her school performance indicates that she is a bright student who has achieved excellent results. She hopes to study medicine at university, which is known to be a long and demanding program with very high entry standards and significant costs involved, even in Australia with government-subsidised tertiary education and access to HECS and Austudy.

40.    The evidence provided to the Tribunal (by Dr Kim, Ms Hong and Ms An) indicates that higher education in Korea is very competitive and fee paying. If Ms Hong has to return to Korea, I accept that, at the very least, her entry to university may be delayed by the need for financial support in paying the required fees and by her Korean language skills not being of the required standard to permit tertiary study. It seems likely that her parents’ ability to earn will be significantly less than was the situation when her father worked as an officer in the maritime industry prior to leaving Korea in 2005. However, I have no evidence as to the current state of the employment market in Korea or of the prospects of Mr Hong obtaining employment. I accept that Mr Hong may not be able to resume a career in the maritime industry without significant further study and passing the necessary tests to obtain the required certification. Ms Kim says she has no special skills and experience which would enable her to obtain other than unskilled employment.

41.    It is not clear whether Ms Hong’s Australian secondary school results will be sufficient to support entry to university in Korea or whether she will have to undertake further secondary study there. Dr Kim indicated that while English proficiency can prove an advantage for Korean speakers, overseas educated students’ qualifications are strictly assessed.

42.    The evidence of Ms Hong’s school results (for example, largely “outstanding” grades in Year 10 German) and the fact of her becoming proficient in English within a relatively short time of arrival in Australia and now studying Advanced English for the HSC, indicates that Ms Hong has a facility for languages. While Ms Hong says she is now more comfortable speaking English, her mother said the family speak Korean at home. While Ms Hong’s Korean language skills may not have developed since she left Korea at the age of 12 and, indeed, those skills, especially the written language skills, may have declined through lack of use, I am satisfied that because of her background in the language and her facility for languages, she is likely to be able to acquire those skills relatively quickly. Thus, if Ms Hong’s current Korean language skills are not of the required standard to permit tertiary study, it is likely that she will be able to acquire the necessary skills without undue difficulty.

43.    The other significant aspect of Ms Hong’s case is the psychological evidence. I am satisfied from Dr Kim’s evidence that Ms Hong is currently suffering from depression. Following an assessment on 1 March 2011, Dr Kim diagnosed Ms Hong as suffering from a major depressive disorder, attributable to the uncertainty over her visa status and the possibility of her being sent back to Korea. On the one hand, allowing Ms Hong to remain in Australia would address this. The fact that Ms Hong is now working part-time indicates that she is becoming more independent. Moreover, Mrs Lee, who appears to know the family well and to have adequate means, has said that she will provide Ms Hong with accommodation and, if necessary, financial support. However, I note, on the other hand, Dr Kim’s evidence that while Ms Hong is academically bright, she is emotionally immature and needs the support of her parents. If her parents return to Korea and Ms Hong is granted Australian citizenship, she will be largely deprived of that support which would not be in her best interests.

18    In the case of Hyerhim and Sungjohn particular mention should be made of the following findings which were made:

41.    Sungjohn and Hyerhim are not permanent residents. The issues for the Tribunal in their cases, therefore, are whether, having considered the full circumstances of the applicants’ cases and their best interests (as a child), the policy requirement for permanent residency should be waived because the applicants would otherwise suffer significant hardship or disadvantage and the applications warrant approval because of the unusual nature of those circumstances.

42.    Sungjohn and Hyerhim are aged 10 and nearly 15 respectively, Sungjohn is in Year 5 at a public school and Hyerhim is in Year 10 at high school. The evidence indicates that Hyerhim is a competent student. There is no specific evidence as to Sungjohn’s school performance but, according to Dr Kim, his behaviour is typical for a boy of his age. According to Dr Kim, neither child is suffering from major psychological problems although Hyerhim, in particular, is showing emotional distress and anxiety about the family’s visa problems.

43.    Dr Kim states that Sungjohn’s Korean language skills are poor and I note his mother’s evidence that his sisters sometimes have to interpret for him when they are speaking at home. Dr Kim described Hyerhim’s Korean language skills as limited although I note her school report for Japanese in Year 8 indicates that she has a facility for languages. In my view, both children are young enough to adapt to a Korean language-based education albeit that they will undoubtedly experience some difficulties initially. Because of their facility in English, it is also possible that this will initially mark them out as different to other students but one would hope that any initial difference will be resolved over time as they settle into a new environment.

44.    The evidence provided to the Tribunal (by Dr Kim, Ms Hong and Ms An) indicates that education in Korea is very competitive and that higher education is fee paying. It seems likely that Mr Hong’s ability to earn will be significantly less than was the situation when he worked as an officer in the maritime industry prior to leaving Korea in 2005. However, I have no evidence as to the current state of the employment market in Korea or of the prospects of Mr Hong obtaining employment. I accept that Mr Hong may not be able to resume a career in the maritime industry without significant further study and passing the necessary tests to obtain the required certification. Ms Kim says she has no special skills and experience which would enable her to obtain other than unskilled employment. There is no reliable evidence available that would enable me to assess the level of income required to maintain a reasonable standard of living in Korea. I accept that the family may find re-establishing themselves challenging but I have no reason not to believe that, given time, they will manage this.

19    It is not necessary to discuss in any further detail the matters which were summarised by the AAT from Dr Kim’s evidence or the conclusions which the AAT drew from its consideration of Dr Kim’s evidence and the evidence as a whole. The only serious attempt to raise a legal issue with respect to the AAT’s analysis of the evidence before it was the proposition, which was advanced on the appeals, that the AAT was not entitled to make findings, or reach conclusions, about the best interests of any of the children (otherwise than by uncritically accepting Dr Kim’s statements) without evidence from the Minister directly supporting the AAT’s conclusions. I do not accept that submission. The AAT was appropriately placed, and certainly entitled, to apply its own judgment to the evidence given by Dr Kim and to reach conclusions arising from that evidence, and the whole of the evidence, as to how the facts as found by it interacted with the matters which it had earlier distilled as ones for its specific attention. The complaints which were made about the AAT’s findings were, when examined, complaints about the way it had assessed the merits of the applications before it, based on all the evidence. Those complaints did not identify any error of law. It is not within the role of this Court in an appeal under s 44 of the AAT Act to review the findings of fact made by the AAT or to examine its conclusions based on those findings unless some legal error is able to be identified. Accordingly, that is the first (and primary) matter for attention.

Nhayoung Hong

20    The AAT’s conclusions concerning Nhayoung Hong were expressed as follows:

46.    Weighing up the facts as they affect Ms Hong, I am satisfied that, in the short term, her best interests favour her being able to complete her secondary education in Australia. To send her back to Korea before this is likely to cause significant hardship or disadvantage at this stage in her secondary education and adversely affect her psychological state. Although I recognise that I have no specific power in this regard, I would nevertheless recommend that Ms Hong be allowed to complete her HSC year at school in Australia. Presumably, the uncertainty over Ms Hong’s visa status could be resolved in the short term through, for example, her submitting an application for a student visa.

47.    However, in my view, the facts of Ms Hong’s case are not otherwise materially different from cases such as Re Pak and Department of Immigration and Citizenship [2010] AATA 157 and Re Kim and Minister for Immigration and Citizenship [2010] AATA 198 where a refusal of citizenship would not prevent the applicants from completing their secondary education in Australia and being able to apply for student visas to undertake tertiary study here.

48.    In the longer term, if Ms Hong has to return to Korea to undertake her tertiary education, I accept that she will face some difficulties in adjusting to the Korean education system and language, but she is a bright student, with a facility for languages, she will have the support of her family, and once the family have resumed and settled into their life in Korea, it is likely that what currently seem insurmountable difficulties will be addressed. None of this, in my view, is unusual.

21    The questions of law which were said to arise on the appeal in the case of Nhayoung Hong were expressed as follows in the notice of appeal:

a.    Whether an error of Law occurred when the Tribunal member drew the wrong inference that the child would not be adversely affected if returned to Korea from applicant’s psychological evidence going to the statutory question of best interests of the child by reason that this conclusion was incapable of being drawn or be reasonably drawn without additional psychological evidence from the respondent on the question if the child would suffer from depression and be subjected to significant hardship or disadvantage if the child was to be returned to South Korea.

b.    Whether an error on Law occurred when the decision maker ignored the operation of statutory bar to holders of Bridging E Visa, where such visa holders were subject to a 3 year exclusion period from applying for a student visa and were also subject to the provisions of section 48 of the Migration Act 1958 which prohibits the applicant from applying for any visas in Australia, including a student visa.

c.    Whether an error on Law occurred when the decision maker relied on facts In Re Pak and Department of Immigration and Citizenship (2010) AATA 157 and Re Kim and Department of Immigration and Citizenship (2010) AATA 198 where the statutory facts required for a decision were different to these in the applicant’s case, where In Re Pak and Re Kim both applicants were students holding student visas in contrast to the applicant in this appeal who was holding a Bridging E Visa and was subject to 3 years exclusion period as well as being subject to Section 48 of Migration Act 1958 which prevents her from being able to apply for any visas in Australia.

d.    Whether an error of Law occurred when the decision maker failed to take into account evidence of Ms Lee of her proposal to assume the role of carer and provider of residence for the applicant child and failed to give reasons for this in his decision.

22    Paragraphs (a) and (d) do not, in my view, identify any relevant question of law. They represent an unsuccessful attempt to characterise factual findings as legal error. They do not raise subject matters which may be the subject of appeal to this Court under s 44 of the AAT Act.

23    However, the matters raised in paragraphs (b) and (c) are of a different character. It was common ground that it was not open to Nhayoung Hong, as the AAT had assumed, to apply for a student visa. Written submissions for the Minister stated the position in the following way:

58.    In fact, the Applicant cannot apply for a student visa because she holds a Bridging Visa E and has been refused a Protection Class XA visa. As a result, she is barred from applying for another visa while she remains in Australia by sections 48 and 48A of the Immigration [sic] Act 1958 (Cth). Therefore, it is likely that the Applicant will have to return to Korea if her application for citizenship is refused.

24    Those submissions also appear to dispel any hope that the recommendation of the AAT (in [46]), that Nhayoung Hong be allowed to complete her HSC year at school in Australia, would be accepted. The AAT appreciated that any such recommendation on its part could have persuasive value only and would not bind the Minister (see also Re Lazarevic and Minister for Immigration and Ethnic Affairs (1979) 2 ALN No 62). The only relevance now of the recommendation (and the likelihood that it will not be accepted) is to illustrate the way in which the AAT balanced the competing short term and longer term interests of Nhayoung Hong and attempted to reconcile them. It appears to me that its endeavour to do so proceeded in substantial measure by reference to a misunderstanding of the correct legal position and, hence, a misconception about the steps which were open to Nhayoung Hong to alleviate the short term hardship and disadvantage to her if she was required to leave Australia before completing her secondary education in this country.

25    It is plain that the AAT made a clear finding that if Nhayoung Hong was required to leave Australia before completion of her secondary education in this country that would be likely to cause her significant hardship or disadvantage and adversely affect her psychological state. The AAT presumed that this potential harm could be alleviated by her submitting an application for a student visa. In fact that is not a course which is open to her. Nor does it appear that it is likely that any favourable exercise of discretion in her favour will have that result. When the AAT observed that the facts of her case were not otherwise materially different from the other cases it mentioned (Re Pak and Department of Immigration and Citizenship [2010] AATA 157 and Re Kim and Minister for Immigration and Citizenship [2010] AATA 157) it is apparent that it was proceeding upon the same misconception about the legal position and about the steps which were open to Nhayoung Hong at her own initiative. Those steps were assumed to be ones which would entitle Nhayoung Hong to complete her secondary education in Australia and apply for a student visa to undertake tertiary study here. Accordingly, I am satisfied that the AAT made a legal error in its assessment of Nhayoung Hong’s case.

26    The next issue which must be assessed is whether the legal error made by the AAT had any consequence for the decision about Nhayoung Hong’s application for citizenship. In that regard, a distinction must be made between the possibility that she might not be able to pursue tertiary studies in Australia and the separate question of whether she might be prevented, by a decision against her, from completing her secondary education here.

27    It is clear that Nhayoung’s ultimate ability to undertake tertiary education in Australia was not a critical factor in the AAT’s decision. The AAT took into account the fact that she might not be able, as she wished, to undertake her tertiary education in Australia. Such a potential consequence was not regarded by the AAT as providing a sufficient circumstance to warrant the conferral of Australian citizenship upon her. However, it is not clear what view the AAT would have taken about Nhayoung Hong’s application for Australian citizenship had it been apparent to the AAT that in all likelihood she would be prevented from completing her secondary education in Australia. I cannot exclude the possibility, having regard to the reasons given by the AAT for the views which it formed, that this might have been sufficient to warrant favourable consideration of her application for Australian citizenship. In the circumstances, that is a matter which must receive further consideration by the AAT. It does not appear to me that further evidence would be necessary but that is a matter which will remain within the discretion of the AAT. For those reasons, Nhayoung Hong’s appeal will be upheld and her case remitted to the AAT for further attention.

Hyerhim and Sungjohn Hong

28    The AAT’s conclusions as to Hyerhim and Sungjohn Hong were expressed as follows:

47.    Weighing up the facts as they affect Hyerhim and Sungjohn, I am satisfied that their circumstances are like those of many children who study in Australia and then have to return to their country of origin. In my view, it is in their best interests to remain with their parents. I am not satisfied that, particularly with Sungjohn, placing them in the care of Mrs Lee is a satisfactory solution, however willing and accommodating she may be. Moreover, having regard to Dr Kim’s evidence that their older sister, Ms Hong, is emotionally immature, and noting her desire to continue with her studies (see the Tribunal’s statement of reasons for the decision in respect of Ms Hong in Re Hong and Minister for Immigration and Citizenship [2011] AATA 242), I am not satisfied that she has the maturity or capacity to provide her younger siblings with the support they will need in the absence of their parents notwithstanding modern communication facilities such as email, facebook and Skype country to country. I accept that in the short term, Hyerhim and Sungjohn will experience adjustment difficulties, but it is likely those difficulties will resolve and allow them to settle back into normal life in Korea.

29    Although this was not expressly stated by the AAT, any suggestion that Nhayoung Hong should take primary responsibility for supporting her younger sister and brother would be unavailing if she was not granted Australian citizenship or permitted to remain in Australia. It is clear, however, that the AAT’s assessment of Hyerhim’s and Sungjohn’s applications was that they did not have a sufficient case for conferral of Australian citizenship, even if their older sister remained in Australia. Mrs Lee’s preparedness to look after their interests so far as she was able did not suffice either.

30    The questions of law which were said to be raised on the appeal concerning Hyerhim and Sungjohn Hong were expressed as follows:

a.    Whether an error of Law occurred when the Tribunal member discussed the psychological evidence in Dr Kim’s assessment of Sungjohn Hong and Hyerhim Hong in the absence of any expert evidence from the Minister for Immigration and Citizenship and then to form its own opinions and conclusions about the applicants’ hardship or disadvantage in the event they were refused citizenship.

b.    Whether an error on Law occurred when the decision maker failed to give adequate weight to applicants’ evidence going to the question of best interest of the children in the absence of any evidence from the respondent and then to make an administrative decision in the exercise of the Minister’s statutory power, which may have resulted in the abuse of discretion by the Tribunal member.

c.    Whether an error on Law occurred when the decision make failed to take into account all the relevant considerations of Ms Lee’s evidence on her proposal for her to assume the role of carer and provider of residence for the applicant children after the departure of their parents to take up residence in Korea when making its decision to refuse citizenship for the children.

d.    Whether an error of Law occurred when the decision maker referred to its decision of Re Nhayoung Hong and Minister for Immigration and Citizenship (2010) AATA 242 made on 12 April 2011, on the same day that the appellant’s matter was determined and which is on appeal in the Federal Court of Australia.

31    Paragraphs (a), (b) and (c) are, like similar grounds in Nhayoung Hong’s appeal, an attempt to characterise the AAT’s findings of fact as legal error. They do not identify a proper subject matter for an appeal to this Court under s 44 of the AAT Act. Paragraph (d) might conceptually be capable of identifying a question of law but it does not do so in the circumstances of the present case. There was no question of law which arose when the AAT referred to its findings in Nhayoung Hong’s case to the effect that she did not have the maturity or capacity to provide her younger siblings with the support they would need in the absence of their parents. Those findings were made in circumstances where the proceedings before the AAT, notwithstanding that two separate decisions were given, were conducted in a consolidated form with one body of evidence being taken. The AAT’s reference to its decision in the case of Ms Nhayoung Hong was simply a convenient way of drawing attention to its findings about those particular facts. No question of law is thereby revealed.

32    There is some force in the submission which was made by counsel for the Minister that the appeal to this Court in the case of Hyerhim and Sungjohn Hong was defective, in that no question of law was identified to provide the subject matter of an appeal to this Court under s 44 of the AAT Act. The appeal was liable to be struck out for that reason if it was appropriate to do so. However, such an order would have been interlocutory in character. As one opportunity had already been given to amend the grounds challenging the AAT’s decision, and as the issues have been fully argued, it seems desirable that I deal with the appeal by way of a final order. In the circumstances the appeal by Hyerhim and Sungjohn Hong will be dismissed and the decision of the AAT affirmed.

Costs

33    It seems probable that, having regard to the foregoing findings, and the orders which will be necessary to give effect to them, no order for costs would be appropriate in the present case. However, I will hear the parties about that issue should it be necessary to do so.

Orders

34    The orders which will be made are:

    In NSD 583 of 2011, the application of Nhayoung Hong to the Administrative Appeals Tribunal in No 2010/2156 be remitted to the Tribunal for further decision.

    In NSD 584 of 2011, the decisions of the Administrative Appeals Tribunal in Nos 2010/2154 and 2010/2155 be affirmed and the appeal to this Court be dismissed.

Associate:

Dated:    28 July 2011