Blight and Minister for Immigration and Multicultural and Indigen Ous Affairs

[2003] AATA 357

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2003] AATA 357

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No   N2002/908

GENERAL ADMINISTRATIVE  DIVISION		)
Re		Kathryn Alexandra Blight

Applicant

And Minister for Immigration and Multicultural and Indigenous Affairs

Respondent

DECISION

Tribunal Mr RP Handley, Deputy President

Date2 April 2003

PlaceSydney

Decision The Tribunal affirms the decision under review.

...............................................

RP Handley
  Deputy President 

CATCHWORDS

CITIZENSHIP – citizenship by descent – necessity to apply for citizenship by descent within time specified in legislation – examination of why the Applicant did not comply with time limits – held that the Applicant does not meet the legal requirements of the legislation – decision of the Respondent affirmed.

Australian Citizenship Act 1948 ss10C(4)(c)(ii)

Australian Citizenship Amendment Act 1991

REASONS FOR DECISION

2 April 2003 Mr RP Handley, Deputy President          

1.      This is an application by Kathryn Alexandra Blight (“the Applicant”) for a review of a decision of a delegate of the Minister for Immigration and Multicultural and Indigenous Affairs (“the Respondent”) made on 22 May 2002 to refuse to grant Australian citizenship by descent to the Applicant.

2. At the hearing, Ms Blight, who resides in England, represented herself with the assistance of her parents, Keith and Linda Blight, and the Respondent was represented by Kristy Alexander, Solicitor, of the Australian Government Solicitor’s Office. The evidence before the Tribunal comprised the documents produced pursuant to s 37 of the Administrative Appeals Tribunal Act 1975 (“the T Documents”).

Background

3.      The Applicant, Kathryn Alexandra Blight, was born in Bristol, England, on 28 September 1975 and is aged 27.  Her father, Keith Blight, was born in England and is a British citizen.  Her mother, Linda Blight, is an Australian citizen by birth.  Her brother is four years older than Ms Blight and has been granted Australian citizenship.

4.      On 5 December 2001, Ms Blight lodged an application for registration of Australian citizenship by descent with the Department of Immigration and Multicultural and Indigenous Affairs (T3).  On 22 May 2001, that application was refused on the basis that the Applicant did not meet the legal requirements for registration under the Australian Citizenship Act 1948 (“the Act”). On 1 July 2002, the Applicant lodged an application for a review of this decision with the Tribunal.

Relevant Law and Policy

5. Section 10C(4) of the Act provides for registration as follows:

(4) The Minister must register, in the prescribed manner, an applicant for registration under this section if:

(a) a natural parent of the applicant was an Australian citizen at the time of the birth of the applicant; and

(b) that parent:

(i) is an Australian citizen at the time an application under this section is made; or

(ii) is dead and at the time of his or her death was an Australian citizen; and

(c) the applicant:

(i) was born outside Australia on or after 26 January 1949; and

(ii) is aged 18 years or over on the day on which this section commences; and

(iii) failed for an acceptable reason to become registered as an Australian citizen under:

(A) section 10B;

or

(B) section 11 of this Act as in force at any time before the commencement of section 10B; and

(d) the Minister is satisfied that the applicant is of good character.

6. Section 10C of the Act was inserted by the Australian Citizenship Amendment Act 1991 which commenced on 15 January 1992.

Evidence

7.      Ms Blight said her brother has lived in Australia for a year, but has now returned to England to study for another degree - in marine biology.  He intends to return to Australia with his family on graduation.  Her parents want to retire here.  Mr Blight said he is eligible to retire in October 2003 on completion of 30 years service in the Police force.  He has recently been promoted and may stay on for a while, but his and his wife’s intention is to retire and live in Australia.  One of the reasons for their present visit to Australia is to explore where they might live and purchase property.  Mrs Blight said had she known, she could have registered her two children at birth.  She wants to keep the family together and for the two children to also be able to live in Australia. 

8.      Ms Blight said she works in wardrobe in the theatre, film, and television industry.  She would like to work in film and television in Australia, but a friend who is working at Fox Studios in Sydney has told her that it is difficult to obtain such work in Australia if you are not resident in Australia and you do not have Australian citizenship. 

9.      Ms Blight said she considers it very unfair that her brother has been granted citizenship but she has not.   Mr Blight said that the legislation is too rigid and should be reviewed.  There should be room for some discretion in such a case in recognition of the family unit. 

Application of the Law and Findings

10. The issue for the Tribunal to decide is whether Ms Blight should be granted Australian citizenship pursuant to section 10C(4)(c)(ii) of the Act.

11. The Tribunal finds that Ms Blight was aged 16 at the time of the commencement of the relevant provision of the Act on 15 January 1992. Therefore she does not meet the legal requirement that she was aged 18 years or over at the time of the commencement of the relevant section. Unfortunately for Ms Blight, the legislation does not provide for any discretion to take account of her circumstances and the Tribunal must therefore apply the law as it finds it and affirm the decision. The Tribunal notes, however, that the consequence is that Ms Blight has been denied the benefit of Australian citizenship when her brother, who is a few years older, has been accorded that benefit. Thus, it is understandable that she should consider the decision unfair.

I certify that the 10 preceding paragraphs are a true copy of the reasons for the decision herein of Mr RP Handley, Deputy President

Signed:         .......................................................................................
  Associate

Date/s of Hearing  2 April 2003
Date of Decision  2 April 2003
Representative for the Applicant               Self represented
Representative for the Respondent          Ms K Alexander