AP and Minister for Immigration and Border Protection
[2014] AATA 706
•29 September 2014
[2014] AATA 706
Division GENERAL ADMINISTRATIVE DIVISION File Number(s)
2013/6467
Re
AP
APPLICANT
And
Minister for Immigration and Border Protection
RESPONDENT
DECISION
Tribunal Mr P W Taylor SC, Senior Member Date 29 September 2014 Place Sydney The decision under review is affirmed.
......................[sgd]...............................................
Mr P W Taylor SC, Senior Member
CATCHWORDS
CITIZENSHIP – citizenship by conferral – application refused – minor – child of Nepalese mother – father’s nationality uncertain – whether applicant is stateless – whether entitled to acquire foreign citizenship – decision affirmed
LEGISLATION
Australian Citizenship Act 2007 (Cth) s 21
CASES
Buck v Bavone (1976) 135 CLR 110
Fryar v Systems Services Pty Ltd (1994) 125 ALR 592
Little v Registrar of High Court (1991) 29 FCR 544
Meyers v Hennell [1912] 2 Ch 256
Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259
Re Maunder; Maunder v Maunder [1902] 2 Ch 875
Re Secretary, Department of Family and Community Services and Tough (2002) 71 ALD 458
Re Woodcock and Woodcock [1957] NZLR 960Sterling Engineering Co Ltd v Patchett [1955] AC 534
SECONDARY MATERIALS
Migration Legislation Amendment Bill (No. 1) 2008 (Cth), Explanatory Memorandum
REASONS FOR DECISION
Mr P W Taylor SC, Senior Member
29 September 2014
AP was born at the Royal Prince Alfred Hospital, Camperdown in mid February 2010. His mother, SB, is a 29 year old Nepalese lady. She entered Australia in early 2007 on a student visa, and currently holds a bridging visa. SB thinks AP’s father is a man she claims only to have known as SS.[1] She says she is confident SS is not Nepalese, and is either an Indian or Bangladeshi national. SB claims to know very little about SS, and to have been unable to contact him since some months before AP’s birth.
[1] In an interview with a Departmental officer in October 2013 SB said she believed SS was AP’s father, but gave the first names of two other men with whom she claimed to have been involved. In the present proceedings SB repeatedly confirmed her belief that SS, and neither of the other two men, was the father of AP. In those circumstances I have not given any further consideration to her suggested relationship with these men, their identity or their nationality. This is so despite the fact that in the decision under review the delegate established that one of these men was a Bangladesh citizen – a circumstance that would likely result in AP being entitled to Bangladesh nationality if that man was in fact AP’s father.
SB contends she cannot definitively establish SS’s nationality. She says AP is a stateless person. She points to a finding to that effect, made in a 9 November 2012 Departmental decision refusing applications she and AP made for a protection visa. SB says the consequence of AP’s statelessness is that he is eligible for Australian citizenship, in accordance with s 21(8) of the Australian Citizenship Act 2007.
The statelessness finding in the 9 November 2012 Departmental decision followed from (i) an assumption that AP’s father was a Nepalese national and (ii) a finding that his father would not voluntarily co-operate in obtaining Nepalese citizenship for AP. The decision noted that AP’s father’s actual nationality would have a significant effect in assessing whether AP was in fact “stateless” and particularly if AP’s father was “a citizen of a country other than Nepal”.
The 9 November 2012 decision finding, despite being based on an assumption contrary to SB’s own belief about SS’s nationality, encouraged SB’s advisers to have her lodge AP’s citizenship application. She did that in February 2013. In November 2013 the Minister’s delegate refused AP’s citizenship application. AP, with his mother’s assistance, challenges that refusal.
THE LENGTH OF SB’S RELATIONSHIP WITH SS
SB says that she first met SS in February or March 2008. That was in a computer room at a Sydney college where she was undertaking a Certificate III child care course. In an October 2013 Departmental interview, and in her oral evidence in these proceedings, SB said that SS was undertaking an evening course in hospitality at the same college.
AP’s February 2010 birth was seven weeks premature. An RPAH neonatal discharge record dated 24 February 2010 attributes to SB statements that (i) she had been with his father for two years, (ii) he left when she was 25 weeks pregnant, because he did not want to take on the responsibilities of fatherhood, and (iii) she believed that his father would pay some maintenance.
In April 2012 SB lodged protection visa applications for both herself and AP. In an interview for that application she appears to have repeated the statement that AP’s father left her about 25 weeks into the pregnancy. In the October 2013 Departmental interview she is recorded as saying that she discovered her pregnancy at about 25 weeks, and that was when SS left.
In a statement dated 10 January 2013 SB referred to the hospital record and said she did not dispute it. However, SB said in her 10 January 2013 statement that she in fact first realised her pregnancy at about 13 weeks. At one stage in her oral evidence in these proceedings SB said she discovered she was pregnant in late October 2009. She said that after she discovered she was pregnant, but some weeks before her 18 week ultrasound she contacted SS. SB said she asked him to come to her home. It was at their meeting at her home that she told SS she believed he was the child’s father. SB’s evidence in these proceedings was that she had had no contact with SS after that meeting.
SB’s oral evidence, including her evidence about the frequency of her contact with SS, and those gestational week references (given AP’s prematurity) suggest that (i) she discovered her pregnancy at the end of September 2009, (ii) the meeting certainly occurred before her 18 week ultrasound in early November 2009, (iii) she likely contacted SS and met with him sometime in October 2009, (iv) she most likely told SS about the baby in early October 2009. There is a significant inconsistency between SB’s account that SS left her when she was 25 weeks pregnant, and her evidence that her contact with him ended when she told him about her pregnancy – an event that most likely occurred shortly after she had her pregnancy confirmed. There is a similar apparent inconsistency between her claim that she had lost contact with SS after that event, and her February 2010 statement to the hospital staff that she believed AP’s father would pay some maintenance.
SB sought to explain the apparent inconsistencies in her various accounts about the time when SS “left” her (to adopt the verb used in the RPAH February 2010 discharge record). She said her statement that she expected AP’s father to pay maintenance was just a lie. It was something she made up because she was afraid the authorities might dispute her ability to provide properly for her son, unless she could point to some likely means of financial support. Her statement that SS left after 25 weeks was really when, after months of unsuccessfully trying, she gave up hope of succeeding in contacting him.
It is difficult to accept, and I do not accept, SB’s evidence that she lost contact with SS immediately after informing him of her pregnancy. She did not dispute the RPAH discharge record note in her January 2013 statement. More significantly, in her 6 March 2014 statement SB said “it was at about 20-25 weeks into my pregnancy that [SS] stopped taking my calls and disappeared”. This statement introduced an estimated range of weeks and, in that respect, contrasts with her earlier and repeated statements that he “left” at 25 weeks. But even the range of weeks is inconsistent with her claim, in the oral evidence at the hearing, that she lost contact with SS immediately following the meeting when she told him about her pregnancy. Furthermore the statement that he stopped “taking my calls” appears to be unequivocal and also inconsistent with SB’s oral evidence at the hearing – that she only ever made “prank” calls to him. It appears to be an express, though perhaps inadvertent, acknowledgement that SS did in fact answer phone calls she made to him.
If one was to accept SB’s claim that she has in fact lost contact with SS, the most likely timing from which it occurred is fixed by her recollection linking the event to the 25th week of her pregnancy. That link would point to the cessation of their contact in the week or so just before Christmas 2009. That timing is consistent with the early part of SB’s cross examination, where she said her last contact with SS was at the end of 2009. In a later part of her cross examination she said that he left “after December 2009” and she thought that was when she was 25 weeks pregnant. Finally, in email correspondence with the Department on 4 November 2013, AP’s legal representative answered a specific request with the statement that SB was able to contact SS on the mobile number “043x xxx 610” between “approximately February/March 2008 and November/December 2009”.
The relationship duration pointed to by the events and information summarised in the immediately preceding paragraphs is about 21 to 22 months. That duration approximates the “two year” relationship period described in the hospital record. Throughout that period, according to the account SB gave in the October 2013 interview, she saw SS about once a week, and he spent time at her residence. Her evidence in the present proceedings was that their meetings varied in their frequency. Sometimes they were twice a week. Sometimes there were absences of a month or more. I am inclined to think, and I find, that the former estimate (meetings as frequent as twice a week) is likely to be more accurate. Such frequency of contact better reflects the likelihood that she was “closely attached with a guy” – as she said in the statement she provided to the Department on 19 April 2012 – and the “two year” relationship she said she had with SS.
SB’S LIMITED KNOWLEDGE OF SS
The duration, regularity and intimacy of SB’s relationship with SS would appear to justify her 19 April 2012 description that they were “closely” attached. But SB claimed they never asked anything about each other. More particularly although she said she knew SS’s mobile phone number, and the address where she thought he lived, she claimed she did not know:
(a)whether SS was his real name,
(b)where or when SS was born – other than he appeared to be about 27 or 28 years of age,
(c)where SS grew up or held his citizenship – except for her belief that he was not Nepalese,
(d)what visa he held, where he worked, or when he arrived in Australia, other than believing it was sometime in 2007.
SB said that despite meeting at the college they both attended, she and SS had no mutual friends, and never introduced each other to any of their own friends. This claim, implausible enough in itself, is made even less plausible by the length of their relationship and the regularity of their meetings. Those meetings, according to SB occurred only where she lived and only on weeknights. By at least February 2010, according to the RPAH neonatal discharge records, SB was living at her current address with a married Nepalese couple. That was shared accommodation, and may have been where she lived from about July 2008. (Her last, clearly recorded, changes of address appear to have been in May and July 2008.) It seems likely that whatever accommodation she had in 2008 it was accommodation she shared with others. In the totality of these circumstances it is quite implausible that she kept her relationship with SS entirely secret from all her friends. She made that claim in her oral evidence. But it can hardly be true once her pregnancy became obvious. And its doubtful accuracy is further encouraged by the statement, contained in her 19 April 2012 statement to the Department, that she “tried to contact all my friends to find out the real father”. Enquiries of friends who, on her version of events did not know SS, would seem to be a particularly fatuous exercise.
SB’s assertedly limited knowledge of SS is implausible. I find it highly implausible. In the course of their relationship it is inherently likely they would have had many hours of conversation. Those conversations would have occurred whilst they were establishing their interest and affection, enjoying their intimacy, and when they discussed the fact, and the ramifications, of her pregnancy. SB would have it that despite characterising SS as a man with whom she was “closely attached” (according to her 19 April 2012 statement) they never interacted with any of their other friends, and never discussed aspects of his origin, family and status that would be a very normal part of social interaction between persons who were “closely attached”. The former claim is not one that I am prepared to accept from SB, at least not without corroboration from her friends. The latter is not a claim I am prepared to accept, having regard not only to its implausibility but also to the anomalies in SB’s evidence – anomalies to which I now turn.
ANOMALIES IN SB’S CLAIMS ABOUT SS
SB says she met SS at the college she attended. She told the Departmental interviewer in October 2013 that SS was doing an evening cooking course at the college. The college in response to a summons, indicated that it had no record of the enrolment of SS.
SB says that SS told her, at one stage in early 2009, that he lived at an address on the Princess Highway at Arncliffe. SB said that, on at least one occasion, late in 2009, she had gone to the Arncliffe address to look for SS. She said no-one living there knew him. Departmental records have been produced that detail particulars of the visa holders who have given the Arncliffe address as their place of residence at the relevant time. All of them were Nepalese nationals. One of them (MS) not only has the same surname as SS but he also has a polysyllabic first name which, if it was reduced to an Anglicised monosyllabic short form, could readily be the first name by which SB knew SS. But there is no record of any phone communications between SB and MS. And when SB was shown a photograph of MS, she said she did not know him. She also said none of the other men recorded living at the Arncliffe address was SS.
I find it difficult to accept, and I do not accept, that SS, a man with whom SB was “closely attached”, would have given her an untrue address. I do not accept that she went to the Arncliffe address – either “late in 2009” as she claimed, or at all – to attempt to speak to SS. My disinclination to accept her evidence about the Princess Highway address is encouraged by her evidence about SS’s mobile phone number.
DEMONSTRABLY INCORRECT MOBILE PHONE NUMBER
SB claimed she used to contact SS via the mobile number “043x xxx 610”. She said, in her oral evidence in these proceedings, that she would contact him by either making a “prank” call to that number (that is, dialling and hanging up before the call was answered) or by sending an SMS from a public phone booth. SB said that she and SS had different mobile phone service providers and that she contacted SS in this way to avoid incurring call charges (or additional call charges) on her mobile phone account. She claimed that she never made a connected voice call to SS from her mobile phone. She said that he used to telephone her back. She did not know what number he was using, because he had blocked his caller ID.
SB’s claims in her oral evidence about this mobile phone number are quite improbable. SB said in her oral evidence that she never made a connected call to SS’s phone. That is not consistent with her claim (noted in paragraph 11 above) that it was at about the 20-25 week mark of her pregnancy that SS “stopped taking my calls”. Nor is it consistent with the notes of her Departmental interview on 10 October 2013, which attributes to her a statement that she communicated in Hindi and English on SS’s mobile phone. I do not accept her suggestion that the note is an inaccurate account of what she said. If her only method of contacting SS was by making “prank” calls or SMS texts, that fact, which is remarkable enough in itself, is likely to have been recorded in the account of the interview.
I find that the available evidence demonstrates SB’s claims about the mobile number “043x xxx 610”, and specifically her claim that it was the number she regularly used to communicate with SS, are highly unlikely to be true. I do not accept her claim. The mobile number “043x xxx 610” was issued to DB in February 2008, and disconnected in September 2011. DB, as it turned out, is Nepalese man who has a mutual friend with SB, and had been introduced to her several times. DB used the phone with the mobile number “043x xxx 610” throughout the period from 2008 to 2011. He was for all practical purposes its sole user throughout that period. DB did not ever live at the Arncliffe address, did not allow other people to use his phone, except on a few occasions, did not recall receiving “prank” calls at any time during the period he had the phone number, and never had a practice of telling any of the other people he lived with that he had received “prank” calls.
It was never put to DB during his evidence that he knew SS. It was never put to him that he passed on “prank” call messages to anyone else. It was never suggested to him that he had answered mobile phone calls from SB. SB gave no evidence that she had ever spoken to DB on his mobile phone.
SB’s mobile phone records for the period from March 2008 to March 2010 were obtained and tendered. They record thousands of text messages sent by SB. Only one, on 2 August 2009, is to the mobile number “043x xxx 610”. SB’s phone records also record thousands of voice calls. There is only one voice call to the mobile number “043x xxx 610”. It was made on 5 July 2009 and was two seconds long. There was no evidence what this call was about.
The absence of phone records of communications by SB to the mobile number “043x xxx 610” is consistent, arguably, with her claim that she only made “prank” calls or sent SMS texts from a public phone. Nevertheless, the absence of any such records, particularly after she discovered her pregnancy (at about the end of September 2009) and in the months before AP’s birth, at a time when she was assertedly attempting to contact SS, is very surprising. DB continued to use the mobile number “043x xxx 610” until September 2011. Despite that fact, and SB’s supposed interest in contacting SS, there is no evidence she ever spoke to DB on the mobile number “043x xxx 610”.
It is scarcely credible, and I do not accept, that when SS supposedly stopped responding to the “prank” calls she supposedly made, SB would not have abandoned her “prank” call tactic and attempted to call SS and have him answer his phone. Indeed, in the October 2013 Departmental interview she said that she tried to contact SS on his mobile phone, to obtain child support for AP, but the phone rang out. There is in fact no objective, or independent, evidence that she made any such attempt to contact SS, via the mobile number “043x xxx 610”, in this way.
The absence of any record of such a communication in SB’s phone records may be explicable by the fact that the records only log connected calls. But the fact remains that the mobile number “043x xxx 610” actually belonged to DB, and continued to be used by him for 19 months after AP was born. If SB was as motivated to contact SS as she claims, and if she had actually tried to contact him on the “043x xxx 610” number, it is very strange that (i) she never spoke to DB on that number, and (ii) in the entire period between March 2008 and the end of March 2010, the only connected communications between her mobile service and the mobile number “043x xxx 610” were the two second voice call on 5 July 2009, and an SMS message on 2 August 2009.
The improbable and incredible evidence of SB about her use of the mobile number “043x xxx 610” to contact SS is highlighted by her initial denial of knowing DB, and by her denial of a recent telephone call she made to DB.
As I have already recorded, SB and DB had a mutual friend. His name was YG. YG and DB had shared a house for time. SB and DB had been introduced on several occasions and exchanged short polite conversation. If that was their only contact SB might have been believed when, after DB gave his oral evidence in these proceedings, she explained that she had only been introduced to him by a diminutive version of his first name, and she had not recognised him until he went into the witness box. That was in the course of the hearing, and after she had given part of her evidence. But there is another, more significant reason why I do not believe SB.
DB gave evidence that SB had telephoned him some months before the resumed hearing of these proceedings. That appears to have occurred some time after the phone records linking DB to the mobile number “043x xxx 610” had become available. DB’s version of what SB said to him in the course of that phone conversation was to the following effect:
Can you do me one favour? I gave your previous phone number [043x xxx 610]. I’m applying for something for my baby. They might not call you but if Immigration or some agent calls just say that you don’t know me or you don’t know anything about my situation.
DB was cross examined to the effect not that he was mistaken, but that he was deliberately lying about the conversation. The suggestion, which was not articulated with any detail to lend it any credibility, was that such a deliberate lie would somehow assist DB’s wife’s currently undetermined partner visa application. There is not the slightest justification for the suggestion that DB fabricated his evidence about the conversation, and no attempt was made to suggest that he was mistaken or confused about its content or timing.
One challenge that was made to DB’s evidence was to dispute that he used, or alternatively that he exclusively used, the mobile number “043x xxx 610” before 29 September 2009. That was the date when the Departmental records noted that they had been informed of that contact number for DB. In contrast to that information, it was objectively established that the phone number was first activated in February 2008. And the Departmental records contain other information suggesting that DB had some particular reason to contact the Department in September 2009. The unexplained Departmental records provide no basis for doubting DB’s evidence about his nearly exclusive use of the mobile number “043x xxx 610”.
SB admitted that she had spoken to YG (SB and DB’s mutual friend) some months ago. But she denied speaking to YG about DB’s previous mobile number. She also denied having telephoned DB and having the conversation he recounted.
I accept DB’s evidence about his recent telephone call from SB. I reject her denials. DB’s evidence about that conversation comforts me in making the finding, which I would have made in any event, that SB is not to be believed in her evidence that she used the mobile number “043x xxx 610” to contact SS. I accept only her evidence that she knew how to contact SS and that she did so regularly and successfully. I find that she did so at least up until Christmas 2009.
Because of the highly improbable and implausible evidence that SB had given about her knowledge of SS, and the unbelievable evidence she has given about the mobile number “043x xxx 610” I am not satisfied that she is ignorant of either SS’s true identity, his nationality, his current whereabouts, or about practicable enquiries that are reasonably likely to reveal that kind of information.
At one stage of her dealings with the Department, and in her oral evidence in these proceedings, SB gave another mobile phone number as one that she sometimes used to contact SS. The number was “043x xxx 934”. In her evidence in these proceedings she described the “610” number as the first number. The second number she said dated from around June or July 2009. But this cannot mean, in the light of the information provided by AP’s solicitor in the 4 November 2013 email that she ceased to use the “610” number. She continued to communicate with SS on the “610” number until November or December 2009. In fact, the mobile number “043x xxx 934”. had been issued to a Slovakian national (MH). Departmental records suggest that he lived at Pyrmont, and left Australia in late July 2009. There is no indication in the phone records of any communication between SB and MH. The totality of the information conveys the extreme unlikelihood that SB used the mobile number “043x xxx 934” to contact SS.
The totality of this evidence justifies the conclusions that it more likely than not that:
(a)SB knows who AP’s father is,
(b)SB did not use either of the mobile numbers “043x xxx 610” or “043x xxx 934” to contact AP’s father,
(c)at least in 2008 and 2009 SB had some other way of communicating with AP’s father,
(d)SB has deliberately not revealed the way that she previously communicated with AP’s father,
(e)SB is very likely to know, but has not revealed, personal particulars about AP’s father that might assist in determining his nationality and whereabouts.
THE STATUTORY CRITERION – CITIZENSHIP ACT S 21(8)
Despite the findings I have made in the preceding paragraph, the fact remains that SB has not identified AP’s father – except by the name “SS”. She has given no information about his nationality, other than her belief that he is an Indian or Bangladeshi national, and not Nepalese. It is in this absence of identifying detail that the statutory criteria governing the outcome of AP’s citizenship application have to be applied. They are set out in s 21 of the Citizenship Act 2007. The relevant part of the provision is in the following terms:
21 Application and eligibility for citizenship
…
Statelessness
(8) A person is eligible to become an Australian citizen if the Minister is satisfied that:
(a) the person was born in Australia; and
(b) the person:
(i) is not a national of any country; and
(ii) is not a citizen of any country; and
(c) the person has:
(i) never been a national of any country; and
(ii) never been a citizen of any country; and
(d) the person:
(i) is not entitled to acquire the nationality of a foreign country; and
(ii) is not entitled to acquire the citizenship of a foreign country.
In the circumstances that apply to AP the statutory criteria can be condensed into the propositions that his application depends on satisfaction that he is (i) neither a foreign national (or citizen) and (ii) “not entitled to acquire” foreign nationality (or citizenship).[2]
[2]The parties agreed that the disjunctive expressions “national(ity)” and “citizen(ship)” had no relevant distinction in the present case. The explanation for their use in the Citizenship Act provisions was suggested to be accounted for by the consideration that some countries employ the expressions as alternatives, and not every country uses the concept of “citizenship”.
NEPALESE CITIZENSHIP
As I stated in paragraph 1, SB is confident SS is not Nepalese. AP’s review application was conducted on that basis. It will be very obvious from what I have written previously that I have little confidence in the reliability of SB’s evidence about any aspect of her description of AP’s father. However, she was not cross examined to question the factual basis for her belief or to suggest that it was inaccurate. Her confidence in believing SS was not Nepalese was based on her declared preference to avoid social contact with men from the Nepalese community. In these circumstances, I do not consider that I can properly find that AP’s father was a Nepalese national. I proceed on the basis that there is, presently available, no evidence to establish positively such a proposition, and some unchallenged evidence to the contrary.
The submissions made on AP’s behalf, in relation to the prospect of Nepalese citizenship applying to him, started with the proposition that citizenship by descent was only available to a child whose father was Nepalese. This submission was based on a statement dated 7 August 2013 by the Government of Nepal, under the stamp of the Ministry of Foreign Affairs. The statement is addressed to the Australian Embassy in Kathmandu.
The 9 November 2012 protection visa refusal decision suggested that the literal wording of the Nepal Citizenship Act of 2006 allowed children to inherit their mother’s citizenship. But this appears to be the case only where the child’s father is also a Nepalese citizen, and even in that case requires that the Nepalese mother can “prove their husband has died or abandoned them”. The protection visa decision continued on with three other observations about the prospect of a Nepalese mother succeeding unilaterally in establishing her child’s citizenship:
On a prima facie view of the legal entitlements of children in Nepal, who do not have access to their father’s assistance, Citizenship law appears to provide an avenue for the child to obtain citizenship. However such a right appears to be dependent on the discretion of the decision maker.
…
The weight of country information strongly supports the conclusion that in practice, where a Nepali citizen mother fails to obtain the active participation of her male partner or husband she is not able to acquire citizenship on the child’s behalf and the child’s birth registration is denied by the authorities.
…
I am satisfied that the weight of country information and advice from the Nepali Embassy clearly demonstrates that the applicant does not have an enforceable right to obtain Nepali citizenship without the participation of his Nepali citizen father.
The findings made in the protection visa application decision were based (as I pointed out in paragraph 3) on an assumption that AP’s father was in fact a Nepalese citizen. But even on that basis AP would not have been entitled to acquire Nepalese citizenship. I have no basis for finding that SS was a Nepalese citizen, and it would not be appropriate to make a mere assumption contrary to SB’s unchallenged evidence. In those circumstances, and in accordance with the parties’ respective understandings of the law of Nepal, I am satisfied that AP was neither a Nepalese citizen nor entitled to acquire Nepalese citizenship. This is because (i) AP’s father is not a Nepalese citizen, and (ii) in that situation, SB’s Nepalese nationality cannot confer a relevant citizenship entitlement on AP.
It is not necessary for me to determine whether there are other reasons that would also justify satisfaction that AP is not entitled to acquire Nepalese citizenship.
INDIAN AND BANGLADESHI CITIZENSHIP
AP’s submissions on the possibility of his Indian or Bangladeshi citizenship addressed the “citizenship by descent” provisions in the Indian Citizenship Act, 1955 (section 4(1)) and the Bangladesh Citizenship Act, 1951 (section 5). The basic operation of both provisions is to declare that a non-resident person born outside India or Bangladesh (after dates that long precede AP’s 2010 birth) is a citizen of the country if either parent is also a citizen. That basic operation is subject to a consular registration qualification. That registration qualification applied to AP’s hypothesised Indian citizenship because he was born after 2003. It may apply to his hypothesised Bangladeshi citizenship if his father was only a citizen by descent. AP’s birth has not been registered at any relevant consulate. There is no time limit for Bangladesh consular registration. Indian consular registration is formally subject to a time limit that, in AP’s case, has expired. However, there is a statutory discretion to permit registration at any time.
It is uncontentious that SB is a citizen of Nepal. AP submits that the ethnic origin and actual citizenship of his father are effectively irrelevant, because the Tribunal should be affirmatively satisfied that SS is not his genuine name, he is no longer contactable by SB, and will not co-operate in assisting AP to obtain either Indian or Bangladeshi citizenship. Taking all those matters into account, AP submitted he was not a citizen of either India or Bangladesh (and not entitled to acquire citizenship of either country) because:
(a)he cannot establish his father is a citizen of either country (and in the case of Bangladesh he cannot establish that his father is not a citizen by descent only),
(b)his birth has not been the subject of consular registration, and may not now be permitted Indian consular registration.
AP’s first submission about his doubtful paternity actually has two related elements. The first element of the submission is that whilst SB believes AP’s father is either Indian or Bangladeshi, she does not know SS’s genuine identity. Without that knowledge AP cannot determine his father’s citizenship, and establish his own qualification for entitlement.
The second element of AP’s submission is that, leaving aside any disbelief of SB’s claimed ignorance of SS, there is good evidence that AP’s father has not in the past been, and is not now, prepared to co-operate in either (i) any application process that may be required to have AP’s citizenship recognised or (ii) any birth registration that might be necessary to satisfy the statutory eligibility requirements for citizenship. AP submitted in those circumstances the Tribunal ought to be satisfied he was not entitled to acquire any relevant foreign citizenship.
AP complemented that submission by drawing attention to the changes made to s 21(8) of the Australian Citizenship Act 2007 by the Migration Legislation Amendment Bill (No. 1) 2008 (Cth). The amendment substituted the expression “is not entitled to acquire” foreign citizenship for the previously applicable criterion “does not have reasonable prospects of acquiring” foreign citizenship. AP contended that this change was deliberate, and required the decision maker to address the fact of entitlement rather than the apparent prospects of being able to establish it at some future time. AP said this interpretation of the provision was encouraged by the Explanatory Memorandum. That Memorandum contained the following statement:
Thirdly, new paragraph 21(8)(d) also amends the time at which the Minister must be satisfied that a person is not entitled to acquire the nationality or citizenship of a foreign country. That is, the Minister will now be required to be satisfied of this at the time of the Minister’s decision, rather than at the time of application. This will ensure that a person is not denied eligibility for citizenship under subsection 21(8) where they were entitled to acquire citizenship and nationality at the time of application, however at the time of the Minister’s decision they were no longer entitled to acquire citizenship and nationality. This change is consistent with the amendment in item 7 of this Schedule and also with Australia’s obligations under the Convention.
To the extent that the second element of AP’s submission involves the proposition that the Tribunal can only concern itself with the currently known ability of AP to satisfy any Indian or Bangladeshi registration or application requirements, I do not accept it. The principal effect of the 2008 amendments was to focus attention on the applicant’s foreign citizenship entitlement at the time of decision, rather than the time of the application. The change to delete the concept of “reasonable prospects” was largely a consequence of that change, to remove the possibility that a person could be denied Australian citizenship where the decision maker was affirmatively satisfied that a person was not entitled to foreign citizenship.
Contrary to AP’s submissions, the 2008 amendments do not relevantly inform the construction of the expression “entitled to acquire” in s 21(8)(d) of the Australian Citizenship Act. The word “entitled” (with its various forms) has long been recognised as imprecise. In the context of property type rights it may refer to a presently recognised right (an entitlement in possession) or a qualification or eligibility (an entitlement in interest): Re Maunder; Maunder v Maunder [1902] 2 Ch 875 at 878. An actual entitlement to do or receive something, where it depends on compliance with a particular procedural step, may best be interpreted as referring to an entitlement “in possession” and not arising until the procedural step has been taken: see Meyers v Hennell [1912] 2 Ch 256 at 267; Little v Registrar of High Court (1991) 29 FCR 544 at 552; Re Secretary, Department of Family and Community Services and Tough (2002) 71 ALD 458 at [35]. But it is, in my opinion, insuperably difficult to apply that exclusive interpretation to the expression “entitled to acquire” in s 21(8) of the Australian Citizenship Act 2007. That expression is used in the context of a potentially contentious application for Australian citizenship where the person concerned will have no clearly established entitlement to any citizenship, and may have no interest in acquiring any foreign citizenship. In that context the expression “entitled to acquire” is far more apt to at least include “entitlement” in the sense of an underlying eligibility or qualifications. In such a context the concept of entitlement better refers to a legal eligibility, than to satisfaction of the evidentiary or procedural steps necessary to have the right formally recognised or vindicated: see Sterling Engineering Co Ltd v Patchett [1955] AC 534. Furthermore, the expression “entitled to acquire” implies a future event, as a result of a course of action that the person is “entitled” to take. That implication is inconsistent, in my mind, with the idea that the negative satisfaction to which s 21(8) of the Australian Citizenship Act 2007 refers, must be found unless the applicant can be shown to have a demonstrably accrued right to be granted (or receive acknowledgement of) foreign citizenship.
That view is reinforced by recognising that the criterion in s 21(8)(d) of the Australian Citizenship Act 2007 is that the relevant decision maker is “satisfied” the person is “not entitled to acquire” foreign citizenship. The criterion of being satisfied about an entitlement to acquire something refers to a subjective state of mind, and is conceptually different from the objective fact of the entitlement, or absence of entitlement. The criterion requires no more than a state of mind “satisfied with the preponderance of probability arrived at by due caution in the light of the seriousness” of the matter to be determined: Re Woodcock and Woodcock [1957] NZLR 960 at 963; Fryar v Systems Services Pty Ltd (1994) 125 ALR 592 at 597.
The criterion of subjective satisfaction requires informed honesty, rather than demonstrable accuracy, although it does not permit idiosyncrasy. In Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 275 the High Court endorsed the following passage from the judgment of Gibbs J in Buck v Bavone (1976) 135 CLR 110 at 118-119:
It is not uncommon for statutes to provide that a board or other authority shall or may take certain action if it is satisfied of the existence of certain matters specified in the statute. Whether the decision of the authority under such a statute can be effectively reviewed by the courts will often largely depend on the nature of the matters of which the authority is required to be satisfied. In all such cases the authority must act in good faith; it cannot act merely arbitrarily or capriciously. Moreover, a person affected will obtain relief from the courts if he can show that the authority has misdirected itself in law or that it has failed to consider matters that it was required to consider or has taken irrelevant matters into account. Even if none of these things can be established, the courts will interfere if the decision reached by the authority appears so unreasonable that no reasonable authority could properly have arrived at it. However, where the matter of which the authority is required to be satisfied is a matter of opinion or policy or taste it may be very difficult to show that it has erred in one of these ways, or that its decision could not reasonably have been reached. In such cases the authority will be left with a very wide discretion which cannot be effectively reviewed by the courts.
The last part of that passage, with its reference to “a matter of opinion or policy or taste” does not exhaust the kinds of criteria for which an element of subjectivity is properly involved in conclusions about satisfaction. The factual situation in Wu Shan Liang (1996) 185 CLR 259 concerned a legislation change from a criterion that addressed the objective fact of refugee status, and substituted a criterion of satisfaction about refugee status. This was a critical difference. The High Court emphasised that:
the decision made by each of the delegates in the present case was not a determination of refugee status. Rather, it was a decision as to satisfaction regarding the status of each respondent as a refugee.
It is for these reasons that I do not accept AP’s apparent submission that the currently known state of affairs, and specifically the absence of evidence of co-operation from AP’s father, requires satisfaction that he is not entitled to acquire a foreign citizenship.
By the same token, if I have correctly understood the Respondent’s contentions, they seem to lead to a quite unsatisfactory conclusion. The Respondent appeared to contend that (i) the application must fail unless AP can nominate his father’s actual citizenship (because only this could preclude the prospect of his potential eligibility for Nepalese, Indian or Bangladeshi citizenship), and (ii) any practical difficulty that an applicant might have in providing an adequate evidentiary basis for obtaining foreign citizenship falls outside the contemplation of s 21(8)(d) of the Australian Citizenship Act 2007. The difficulty with the first of these contentions is that it appears to entail the result that a person who genuinely had no information about his paternity could never come within s 21(8)(d) – yet it is precisely that kind of situation the provision appears intended to address. The difficulty with the Respondent’s second submission is that it would require refusal of Australian citizenship even in the face of irrefutable evidence that the person had no prospect of satisfying the procedural and administrative citizenship application requirements of the relevant foreign country. Again this seems to be precisely the kind of situation to which s 21(8)(d) was intended to apply. And in that context, my previous comments about the potential ambiguity of the concept of “entitlement”, the element of futurity involved in the concept “entitled to acquire” and the criterion of satisfaction, all have a continued relevance. Even though I regard the primary connotation of entitlement as referring to underlying eligibility or qualification, I do not consider that it is correct in the application of s 21(8)(d) wholly to exclude consideration of the practicalities of any application process that may be required. If the circumstances affirmatively showed that an applicant had no prospect of satisfying the application requirements of the relevant foreign country, it is difficult to accept the proposition that a decision maker could honestly and reasonably fail to be satisfied that the person was “not entitled to acquire” citizenship of that country.
It is necessary, therefore, to return to AP’s primary submission – that AP and his mother do not know SS’s genuine identity, cannot determine his citizenship status and cannot know what his own qualification may be for any foreign citizenship.
The factual basis for this submission rests almost entirely on SB’s evidence, and partly on AP’s invitation to draw a corroborating inference from the absence of evidence about SS. It will be very apparent from what I have written that I have no confidence in the reliability of SB’s evidence about SS. Most of what she said about her limited knowledge of him is implausible. Her specific evidence about her method of communicating with him by using the “043x xxx 610” phone number is so implausible that I think it simply cannot be true.
Nevertheless, AP’s submissions point to the 2010 RPAH discharge record and say that SB would have had no incentive to lie to the staff about SS leaving, or in saying that he left for the reason of not wanting to take on any paternal responsibility. Those statements must be true – so the submission goes. The emphasis of the submissions was that SB would have every incentive to disclose SS’s particulars and whereabouts if she knew them. The fact that she has not done so corroborates the truth of the statements she made in 2010. Consequently, the available evidence disclosed no knowledge of SS for something in excess of four years. On that basis the submissions invited the Tribunal to conclude that SB could not then, and cannot now, locate AP’s father.
The difficulty I have with this submission is that it focusses on the truth of SB’s statements that SS “left” – rather than on the unreliability of her statements about (i) the nature and extent of her dealings with him (in the sense of the extent of the information she gleaned about him in the course of their relationship) and (ii) contacting SS on the mobile number “043x xxx 610”. AP’s submissions rhetorically suggest that it is difficult to apprehend why SB would not have SS involved in applications on AP’s behalf if he was truly amenable to her. I agree it is difficult, but it is not impossible – especially if SB’s primary motivation is to have AP obtain Australian citizenship if she can. Moreover, the same argument (that it is in her interests to be candid and accurate) apply to the information she has previously provided about SS. I see no difference between SB’s supposed lack of incentive to withhold information, or to fail to provide accurate information, between the periods before and after AP’s birth. But on the findings I have made, critical aspects of her evidence are neither candid nor accurate. In relation to the period before February 2010, I am affirmatively satisfied that SB has not provided accurate information – specifically about her means of communicating with SS. I am also satisfied that if SB had disclosed the actual phone number she used to contact SS, there are good reasons to apprehend that his personal particulars would have been available from some or all of (i) the telephone service provider, (ii) Departmental records, or (iii) the Sydney College SB attended.
In these circumstances I am not prepared to accept the applicant’s invitation to conclude that SB does not know SS’s identity or nationality, and has no means of contacting SS. Nor am I satisfied by the content of the presently available evidence, that SS is unwilling to reveal his citizenship, acknowledge AP’s paternity or assist in AP acquiring whatever nationality for which his descent might permit him to acquire.
The second submission AP made (see paragraph 46 above) was that the absence of birth registration precluded his entitlement to either Indian or Bangladeshi citizenship. This registration requirement is, to my mind, one that can be satisfied at any time and is a subsidiary aspect of eligibility for the recognition of citizenship by descent in either country. In the absence of any evidence about the way the registration time limit is applied by the Indian authorities, and substantially for the reasons I gave in setting out my views about the meaning of “satisfaction” and “entitled to acquire”, I am not satisfied that the current absence of any relevant consular registration of AP’s birth leads to a present satisfaction that he is “not entitled to acquire” Indian or Bangladeshi citizenship.
DECISION
For the reasons I have set out above, I am not satisfied AP is not “entitled to acquire” the citizenship of either India or Bangladesh.
The decision under review is affirmed.
I certify that the preceding 64 (sixty -four) paragraphs are a true copy of the reasons for the decision herein of Mr P W Taylor SC, Senior Member .....................[sgd]...............................................
Associate
Dated 29 September 2014
Dates of hearing 19 June, 4 and 5 September 2014 Solicitors for the Applicant Mr A Mojtahedi, Refugee Advice and Casework Service (Aust) Inc. Counsel for the Respondent Mr J Smith Solicitors for the Respondent Ms A Graham and Mr T Eteuati, Clayton Utz
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