DLSV and Minister for Immigration and Border Protection (Citizenship) - [2018] AATA 37

DLSV and Minister for Immigration and Border Protection (Citizenship) [2018] AATA 37 (8 January 2018)

Administrative Appeals Tribunal

ADMINISTRATIVE APPEALS TRIBUNAL )
)No: 2017/1427

GENERAL DIVISION )

Re: DLSV
Applicant

And: Minister for Immigration and Border Protection
Respondent

TRIBUNAL: Deputy President Bernard J McCabe

DATE: 8 January 2018

PLACE: Canberra

IT IS DIRECTED, in accordance with subsection 43AA(1) of the Administrative Appeals Tribunal Act 1975, that the text of the decision in this application is to be altered such that the reference to

(a)the Applicant’s representative as “Professor Rubinstein” is replaced with “Professor Rubenstein”; and
(b)“rely” in paragraph [14] of the decision is replaced with “reply”.

.....................[sgd]...........................................

Deputy President Bernard J McCabe

Division:GENERAL DIVISION
File Number: 2017/1427
Re:DLSV
APPLICANT

AndMinister for Immigration and Border Protection
RESPONDENT

DECISION

Tribunal:Deputy President Bernard J McCabe
Date:27 November 2017
Place:Canberra

The decision under review is set aside. In substitution, the Tribunal decides the applicant is eligible to obtain Australian citizenship under s 21(8) of the Australian Citizenship Act 2007.
The parties may make further submissions within 14 days as to whether confidentiality orders should be made with respect to the publication of the decision.

........................[sgd]................................................

Deputy President Bernard J McCabe

CATCHWORDS

Citizenship – application for citizenship by conferral under the Australian Citizenship Act 2007 – application refused – where applicant was born in Australia and is a minor – whether applicant is stateless – whether applicant is entitled to acquire foreign citizenship – decision set aside and substituted

LEGISLATION

Australian Citizenship Act 2007 (Cth), ss 12, 21(8) & 24

Births and Deaths Registration (General) Regulations 1988 (Zimbabwe), ss 5
Births and Deaths Registration Act 1986 (Zimbabwe), ss 11, 13 & 25
Immigration Act 1996 (Zimbabwe), ss 24 & 26

Constitution of Zimbabwe 2013, s 37

CASES

AP and Minister for Immigration and Border Protection [2014] AATA 706

KKRG and Minister for Immigration and Border Protection [2015] AATA 635

REASONS FOR DECISION

Deputy President Bernard J McCabe

27 November 2017

The applicant in these proceedings is a minor child. She was born in Australia in 2006. Her Zimbabwean parents were lawfully present in Australia at the time. Her birth was not registered with the Zimbabwean embassy in Canberra and the applicant’s parents say subsequent attempts to register her birth and obtain citizenship in Zimbabwe have been fruitless. The applicant, through her parents, says she is now a stateless person.
The applicant argues she is eligible for Australian Citizenship under s 21(8) of the Australian Citizenship Act 2007 (the Act). Section 21(8) provides:
(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.

It is common ground between the parties that if I accept s 21(8) is satisfied, the Minister of Immigration and Border Protection (the Minister) must grant citizenship to the applicant under s 24. There is no discretion to refuse citizenship if eligibility under s 21(8) is established.
In this case, a delegate of the Minister accepted the applicant was born in Australia, and that she is not currently – nor has she ever been – a national or citizen of any country. The only question that remains is whether the applicant is able to satisfy s 21(8)(d) of the Act. As a practical matter, I must decide whether the applicant is entitled to acquire the citizenship of Zimbabwe.
In order to make that decision, I must consider the account provided by the applicant’s parents of their efforts to secure citizenship for their daughter. I must also examine the law and practice of applying for Zimbabwean citizenship.

What happened?

The applicant’s parents are both citizens of Zimbabwe. Her siblings, who were born in that country, are also entitled to Zimbabwean citizenship. But the applicant does not hold Zimbabwean citizenship. She was born in Australia in 2006 while her parents were lawfully present in the country. The applicant has an Australian birth certificate that registers the details of her birth in the state where the birth occurred: exhibit 1 – s 37 Documents, T2 at pp 9-10.
If the applicant had been born prior to changes in the law in 1986, she would automatically be entitled to Australian citizenship by virtue of the fact she was born on Australian soil. That is still a key criterion applied in many other countries, like the United States. But s 12 of the Act now says a person who is born in Australia is only entitled to acquire Australian citizenship upon their birth if:

a parent is an Australian citizen, or a permanent resident, at the time of the birth; or
the person lives in Australia continuously for a ten year period commencing from the date of their birth.

The applicant cannot satisfy either limb of that test because her parents were not permanent residents and the entire family left the country long before the applicant’s tenth birthday. I will explain the circumstances of her departure below.
The most obvious course for the applicant’s family when she was born in 2006 was to register her birth with the Zimbabwean authorities and obtain Zimbabwean citizenship. But that did not occur. The applicant’s mother claims the family could not register the birth with the Zimbabwean embassy in Canberra because they did not have the correct documentation. In particular, the applicant’s mother explained the family’s passports (including her own passport and the passport belonging to her partner) were stolen sometime before the applicant was born: exhibit 4 – Statement of the applicant’s mother dated 7 July 2017 at [5]. She said she understood the embassy officials would require identity documents but the family would not be in a position to provide them following the theft. In her statement, she explained the requirement that parents provide proper documentation was made clear on the embassy’s website at the time: exhibit 4 – Statement of the applicant’s mother dated 7 July 2017 at [6]. The applicant’s mother repeated this claim in her oral evidence given by phone at the hearing.
The applicant’s mother also explained in her statement that she and her partner were reluctant to bring themselves to the attention of the embassy because of the political situation in Zimbabwe. She said the Zimbabwean government was hostile towards citizens who emigrated or sought asylum elsewhere: exhibit 4 – Statement of the applicant’s mother dated 7 July 2017 at [6]. That evidence was generally corroborated by a former official of the Zimbabwean government whom I will refer to as AB in these reasons. AB gave evidence in person at the hearing, and provided further evidence by telephone at the resumed hearing.
I should pause to say something about the evidence of AB. The respondent questioned whether AB was able to give independent evidence given AB is associated with the opposition to the regime. I accept AB is certainly a critic but I was not persuaded the evidence was unreliable for all that. AB had no incentive to posture given the evidence was provided in private. I have no reason to doubt AB is a reliable witness.
AB was not in a position to describe the practice at the Zimbabwean embassy in Canberra at the time the applicant was born. AB did not hold government office until sometime later than that. AB suggested it was likely based on AB’s subsequent experience that the embassy would have insisted on proper documentation before registering the birth: Transcript at pp 55 - 56.
The applicant’s mother’s account was disputed by the respondent. During cross-examination at the resumed hearing, Mr Swan, counsel for the respondent, asked the applicant’s mother to comment on an application for protection visas she and her partner had lodged after the applicant was born. A copy of that application is reproduced in exhibit 12. Mr Swan noted the application included what appeared to be a photocopy of the mother’s passport. The application also noted that the original had been sighted by a departmental officer.
Mr Swan asked the applicant’s mother how she could say the passports had been stolen before the applicant’s birth if they were produced months later for use in a protection visa application. The mother’s reply was neither helpful nor satisfactory. She could not explain the anomaly although she did suggest there might be some subterfuge on the part of Australian immigration officials. I am not satisfied there is any credible evidence to suggest immigration officials have engaged in a criminal conspiracy of the kind insinuated by the applicant’s mother. (After the hearing concluded, the applicant’s mother asked to provide an explanation for her answers given during cross-examination. I declined to allow the further evidence. The explanations were not to the point in any event.)
I am satisfied from the evidence contained in the protection visa application that the passports of family members were available at the time of the applicant’s birth. I do not think the mother’s evidence on that issue is credible and I do not accept it. The respondent says that creates a problem because there are other episodes in the story where the applicant’s mother is the only witness and I must decide whether I accept her account. I will have more to say about that below. I accept the passport may have been lost at some point after the application for protection visas was lodged, but they were still available when the applicant was born.
The applicant’s parents subsequently decided to return to Zimbabwe. The applicant’s mother explained in her statement that her father in Zimbabwe was in very poor health and the family felt they needed to leave Australia to be with him. She said she and her partner applied to the Zimbabwean embassy in Canberra for emergency travel documents to replace their stolen passports: exhibit 4 – Statement of the applicant’s mother dated 7 July 2017 at [8]. She says those papers were obtained with the assistance of the Minister’s department. The applicant’s name was entered on her father’s emergency travel document: exhibit 4 – Statement of the applicant’s mother dated 7 July 2017 at [8].
It is unclear precisely what happened to the protection visa application. In her statement, the applicant’s mother said she was told by an officer in the Minister’s department that it had been shredded because the application was withdrawn: exhibit 4 – Statement of the applicant’s mother dated 7 July 2017 at [9]. There seems to be some dispute over whether it was withdrawn before or after the family’s departure from Australia. I do not think anything turns on this detail. I should add that the lengths the family went to in order to obtain emergency travel documents tends to suggest the passports had in fact been lost at some point after they were produced in the course of the protection visa application.
The applicant travelled to Zimbabwe with her family on the emergency travel documents in early 2007. The applicant’s parents approached the Central Registry in Harare to obtain fresh birth certificates for the members of the family born in Zimbabwe: exhibit 4 – Statement of the applicant’s mother dated 7 July 2017 at [11]. The applicant’s mother said she raised the issue of obtaining the applicant’s birth registration number. (A birth registration number is issued once a birth is registered.) She told a harrowing tale of having to wait in line outside the Central Registry’s office on six occasions. She said she was harassed by police who were particularly interested in the applicant’s status. On at least one occasion, the applicant’s mother recalls being beaten by police: exhibit 4 – Statement of the applicant’s mother dated 7 July 2017 at [19]. She said she was also taken in for questioning by police who accused her of being a spy and a defector on account of her Australian connection: exhibit 4 – Statement of the applicant’s mother dated 7 July 2017 at [17]-[18].
When the applicant’s mother finally made it to the front of the queue at the Central Registry’s office, she claims she was told there was no way to register the birth other than through the embassy in Canberra. The applicant’s mother says she was told she should take up the matter with the Registrar-General himself: exhibit 4 – Statement of the applicant’s mother dated 7 July 2017 at [11]-[12]. The applicant’s mother said she also approached the passport office in Harare to obtain new passports for the family. She said she was unable to complete the passport application on behalf of the applicant without a birth registration number: exhibit 4 – Statement of the applicant’s mother dated 7 July 2017 at [14].
The applicant’s parents made an appointment to meet with the Registrar-General: exhibit 4 – Statement of the applicant’s mother dated 7 July 2017 at [15]. I was told the Registrar-General is an important official in the Zimbabwean government. AB explained the Registrar-General’s control over public records gave him a crucial role in the regime’s voter suppression efforts. AB said the Registrar-General used his position to frustrate attempts by individuals to obtain the vote if they were presumed to be hostile to the regime: transcript at 53-56.
The applicant’s parents say they reported to the Registrar-General’s office on the day of their appointment but they did not get to see the Registrar-General himself. They met with a staffer. The staffer apparently said the applicant’s birth should have been registered with the Zimbabwean embassy in Canberra. The staffer also said the Zimbabwean authorities were not aware of the circumstances in which the applicant left Australia, how she was included on her father’s emergency travel document, or the basis on which she entered Zimbabwe. The staffer said the Registrar-General would not register the applicant’s birth; in those circumstances, there was no basis for her to apply for citizenship: exhibit 4 – Statement of the applicant’s mother dated 7 July 2017 at [14]-[15]. The staffer said the Registrar-General had agreed to issue what were known as ‘old-style’ passports (as opposed to the newer electronic passports familiar to modern travellers). While it appeared to be accepted that members of the family who had birth registration numbers could be issued with electronic passports, it was impossible to issue a passport to the applicant – which meant she would be unable to travel anywhere with the rest of the family. The old-style passports were issued to the parents on the same day. The passports included space for the names of children to be inserted – but the applicant’s mother said the staff in the passport office refused to enter the names of the children and endorse them with an official stamp. The applicant’s mother said she and her husband simply wrote in the names of all their children, including the applicant. The applicant’s mother said there is no stamp or official endorsement where the names of the children have been added: exhibit 4 – Statement of the applicant’s mother dated 7 July 2017 at [21]-[22].
The applicant’s mother said the family decided it was no longer safe to remain in Zimbabwe. As soon as her father’s health had recovered sufficiently, she and her partner and children left for South Africa. They travelled on their old-style passports and were issued with tourist visas. Over the course of the next few years, the applicant’s mother said she and her husband attended at the Zimbabwean consulate in Johannesburg on a number of occasions to register the births of the applicant’s younger siblings who were born in South Africa. On those occasions, the applicant’s mother said she provided the old-style passports as proof of identity. On each occasion, consular officers told her the passports were irregular because the names of the children had been entered manually without a stamp or endorsement: exhibit 4 – Statement of the applicant’s mother dated 7 July 2017 at [24]-[25].
The applicant’s mother says the family lives a precarious existence in South Africa because of their uncertain immigration status. The applicant’s immigration status is the most uncertain of them all. I was told the family has been threatened with exposure if they did not pay bribes. South African officials are said to have told the applicant’s family they might be taken into a form of immigration detention pending their deportation to Zimbabwe. The applicant’s parents say they are worried about being persecuted if they return, but they are even more concerned about what would happen to the applicant: exhibit 4 – Statement of the applicant’s mother dated 7 July 2017 at [26]-[30]; see also transcript at pp 43-44.
The applicant’s parents say they want to obtain proper documentation for their daughter. They say she is vulnerable to exploitation and abuse in South Africa while ever she remains undocumented. She is unable to travel anywhere else – including to Australia or Zimbabwe – while she does not have citizenship: transcript at p 45.
The respondent does not accept the applicant’s mother’s account of the reason for failing to register the applicant’s birth with the embassy in Canberra. I have already indicated I did not accept that account, although I accept the birth was not registered. The respondent also doubts the applicant’s mother’s account of her attempts to deal with the Central Registry, the Registrar-General and the consular officer in Johannesburg.
Officers in the Minister’s department contacted an official at the Zimbabwean embassy in Canberra by email and enquired whether it was possible to register the birth of a child born in Australia, even if that birth occurred several years ago: exhibit 11 – Witness Statement of Subasha Prasad dated 27 October 2017 at Annexure SP1. The official confirmed by return email:

The embassy can send out application forms to register the birth of a child born outside Zimbabwe. The forms must be completed and returned to the embassy for verification. The documents are then returned to the parent who forwards the forms to the Central Registry.
Parents are expected to supply a number of documents including their own Zimbabwean passports, birth certificates and national identity cards, and the birth certificate of the child.
If the parents cannot provide valid passports, the decision to register the birth would be at the discretion of the Central Registry.
The child’s birth could still be registered through the embassy if the child had left Australia, even if the birth occurred several years ago: exhibit 11 – Witness Statement of Subasha Prasad dated 27 October 2017 at Annexure SP2.

It appears the embassy was willing to deal with an application by mail so – the respondent says – it would be open to the applicant’s parents to send their documents to the embassy in Canberra by post. Interestingly, the information provided by the Department of Foreign Affairs and Trade (DFAT) to a Country Information Request addressed to the Harare post suggested a different course was appropriate. That document said Zimbabwean embassies and consular officers did not have the capacity to register births or provide birth certificates. The document advised:
To register a birth outside Zimbabwe or obtain a Zimbabwean birth certificate outside Zimbabwe, one has to make the application directly through [the] Registrar-General’s Offices in Zimbabwe either via post/courier or by sending a contact in Zimbabwe to personally make the application on their behalf: exhibit 9 – Zimbabwe: Country Information Request at [8].

The document advises it takes 20-30 days to obtain a birth certificate: exhibit 9 – Zimbabwe: Country Information Request at [9]. I note the document speaks interchangeably about applications to register a birth and applications for a birth certificate. At first glance, that seems odd: one presumably obtains a birth certificate where one is born but the registration in Zimbabwe of a birth occurring elsewhere is presumably a different process. But the document appears to be consistent with s 5(2) of the Births and Deaths Registration (General) Regulations 1988 (the Registration Regulations) which refers to the Registrar-General registering the birth of person born overseas and providing that person with a birth certificate: exhibit 3A.
The respondent also provided a Country Information Report prepared by DFAT in relation to Zimbabwe: exhibit 10 – DFAT Country Information Report: Zimbabwe dated 11 April 2016. The Report notes that the Immigration Act 1996 makes it an offence to enter, remain in or depart from Zimbabwe in contravention of the Act: exhibit 10 – DFAT Country Information Report: Zimbabwe dated 11 April 2016 at [5.19]. Sections 24 and 26 of the Act make it an offence to depart without a valid travel document. That legislation has obvious implications for the applicant: she would not be entitled to enter Zimbabwe because she does not have access to valid travel documents. Her parents may already have contravened the law when they used documents that appear to be irregular in order to flee Zimbabwe to South Africa.
The applicant provided copies of email correspondence with other Zimbabwean embassies in other capital cities that presented a different picture. An officer in the London embassy was asked to comment on the process for registering a birth and obtaining a passport if the child was born to Zimbabwean parents in the United Kingdom: exhibit 6. The officer replied that the child would need to present himself or herself with a parent at the embassy so the child could be finger-printed for the passport. The documents required included birth certificates for the child and parents and the national identity cards of the parents. Once the proper forms were signed to the embassy, the applicant would send all of the documents to the Registrar-General’s office. The note concludes:
Your child can only be registered at the Embassy. A Travel Document or Passport can be issued to your child only after registration.
Please be advised that no birth application can be done without these documents. Accordingly, neither a Passport nor a Travel document can be issued if a child is not registered in the manner cited above: exhibit 6.
The applicant also contacted the Zimbabwean mission in Geneva to ask the same questions. The mission responded saying it was impossible for the mission to assist with the registration of the child if the parents did not have valid documents: exhibit 6. The email advised that the applicant’s parents sort out their documents by going to Zimbabwe.
AB, who was called by the applicant, confirmed it was necessary for the applicant to be registered through the Zimbabwean embassy in Canberra, and that all of the documents referred to including valid passports were required for processing to proceed. AB conceded that understanding was based on knowledge of the practice some years after the applicant was born.
If the advice provided by the embassy in Canberra is right, the registration process can be initiated in Canberra albeit that it requires some documents the applicant’s parents do not appear to have, and that they may have difficulty obtaining. Assuming that hurdle could be overcome, the decision to register the birth still vests in the Registrar-General. If I accept the applicant’s mother’s account of their encounter with the Registrar-General, that course does not offer much hope. The respondent says that course should be tried, at least, so that a definite answer can be obtained. The respondent is not persuaded by the applicant’s mother’s account of her meeting.
Maybe that course should have been tried at an earlier point. The applicant’s mother says there was no point because the Registrar-General would probably refuse to make a decision and the application would be lost in the labyrinth of the Central Registry office. In the meantime, I was told, the applicant and her family were in serious danger because of the applicant’s undocumented status.

Is the applicant entitled to acquire the citizenship of Zimbabwe?

The applicant was represented at the hearing by Professor Kim Rubenstein, a leading authority on citizenship law. Professor Rubenstein explained the provisions of the Act were carefully crafted to give effect to Australia’s treaty obligations in relation to stateless persons. She pointed out that where Australia owes an obligation to a person under the relevant treaty, the Minister has no choice but to accept the application for citizenship if the grounds for eligibility were made out. She explained that, at least in the context of stateless persons, Australian citizenship was not a privilege but could be a right: Transcript at p 8.
Professor Rubenstein said the applicant had no legal right to citizenship of Zimbabwe in the circumstances. While she did not make any concession as to the applicant’s mother’s credit after it became clear her passport had not been stolen when she claimed, Professor Rubenstein said none of that mattered in any event: she said the applicant’s birth was not registered at the embassy in Canberra as required and it is now too late to do anything about it. She says there is no lawful way in which the birth can now be registered; as a consequence, the applicant is stateless and Australia is obliged to confer citizenship upon her.
Professor Rubenstein’s argument starts with Chapter 3 of Zimbabwe’s 2013 constitution which deals with citizenship. Section 37 addresses citizenship by descent. Section 37 provides:
…persons born outside Zimbabwe are Zimbabwean citizens by descent if, when they were born –
(a)either of their parents or any of their grandparents was a Zimbabwean citizen by birth or descent; or
(b)either of their parents was a Zimbabwean citizen by registration;
and the birth is registered in Zimbabwe in accordance with the law relating to the registration of births.
The respondent says the applicant is able to satisfy s 37 because the applicant’s parents were citizens by birth; all they need do is register the applicant’s birth. Professor Rubenstein says that approach ignores the requirement that the birth be registered in accordance with the law. Professor Rubenstein says the procedural step of registration is a substantive requirement of s 37; if there is no registration and registration is not possible under the relevant law, s 37 cannot be satisfied and there is no entitlement to citizenship.
The respondent says the requirement of registration should not be seen as a substantive requirement of s 37. But the Constitution says what it says. I have no reason to read down a requirement that appears to be clearly set out in s 37. I accept as a matter of law that the applicant is not entitled to citizenship of Zimbabwe unless her birth has been registered in accordance with the law. There does not seem to be any doubt that the birth has not yet been registered according to law. Can that occur now?
Professor Rubenstein says the legislation referred to in s 37 of the Constitution is the Births and Deaths Registration Act 1986 (Registration Act). (Interestingly, the Zimbabwe Citizenship Act is irrelevant to the discussion.) A copy of the Registration Act and the Registration Regulations were provided in evidence: Exhibit 3 - Births and Deaths Registration Act 1986 and Exhibit 3A – Births and Deaths Registration (General) Regulations 1988. Professor Rubenstein pointed out in the further Amended Statement of Facts, Issues and Contentions that s 11(1) of the Registration Act says it is the responsibility of a parent “to give notice of the birth … in the prescribed form to the registrar of the district in which the birth…occurred.” Section 11(2) goes onto say that notice of a birth must be given “within forty-two days from the date of the birth”. Professor Rubenstein initially argued that the district where the birth occurred is Australia and the registrar of the district is the representative of the Registrar-General who is based at the Zimbabwean embassy in Canberra. She argued the process was designed this way to permit the embassy staff to validate the birth details; that would be harder to do if that task were left to officials at the Central Registry in Harare. She argued the involvement of embassy officials in Canberra was an indispensable part of the registration process; for whatever reason, she says they were not involved and it is no longer possible to retrieve the situation.
If one has regard to the whole of the legislative scheme, it becomes apparent that the emphasis on the role of the district registrars in the process is misconceived, at least for present purposes. Section 13 of the Registration Act deals with the registration of births occurring outside Zimbabwe. Section 13(1) says notice of the birth may be given to the Registrar-General “in the form and in the manner prescribed”. There is no mention of the role of the district registrar in that provision. Rather than be distracted by the language in s 11, the better approach is to consult the Registration Regulations which prescribe the form and process for informing the Registrar-General of a birth occurring overseas.
Section 5(1) of the Registration Regulations provides that a person giving notice of a birth in accordance with s 13 of the Registration Act should complete the appropriate form that would be transmitted to the Registrar-General. In the applicant’s case, the form should be lodged at the Zimbabwean embassy or a consular office in South Africa where she is ordinarily resident; the form would then be transmitted by that office to the Registrar-General. Section 5(2) of the Registration Regulations says the Registrar-General shall register the birth and provide a birth certificate to the Zimbabwe Diplomatic or Consular representative if the Registrar-General is satisfied notice was properly given under s 13 of the Registration Act.
I note s 25(1) of the Registration Act provides a birth may not be registered after the expiry of 12 months from the date of birth without the written authority of the Registrar-General. That provision is obviously directed to the district registrar but it would appear to give the Registrar-General some latitude in relation to the registration process in cases like the present. The person applying for registration can require that the responsible Minister intervene if the Registrar-General refuses to act, but the criteria to be applied in such a review are not explained and s 25(2) says the Minister’s decision “shall be final”.[1]
[1] The Registrar-General also has the power to refuse to register births occurring outside Zimbabwe where the person who was born has already attained the age of 18 years unless the Registrar-General is satisfied the person is a citizen of Zimbabwe. That limitation is contained in s 13(3) of the Registration Act. It is not directly relevant in this case as the applicant has not obtained majority.
At least three things can be said about all that. Firstly, the form and process for registering a birth which is set out in the law does not accord with the practice that the Zimbabwean embassy in Canberra has adopted. The embassy official who supplied information to the Minister’s department explained the documents must be presented at the embassy but it appears the documents are then forwarded by the parent to the Central Registry. I note this practice also appears to be followed in the London embassy, according to the email tendered by the applicant. The response to the DFAT Country Information Request also says that documents must be forwarded directly to the Registrar-General’s offices in Harare. There is no mention of the requirement in s 5(1)(a) of the Registration Regulations that documents be lodged through the local Zimbabwean Diplomatic or Consular representative where there is one. In other words, it is clear that – in this respect, and perhaps in others – the law and practice diverge. That is a problem in circumstances where s 37 of the Constitution specifically requires registration in accordance with the law.
Secondly, the legislative scheme gives the Registrar-General some latitude to refuse to register the applicant’s birth. The fact various arms of the Zimbabwean government involved in the birth registration process do not appear to follow the law as written must generate doubt over the integrity of the process and the decision-makers. Those doubts can only deepen when one has regard to the uncontradicted evidence provided by AB at the hearing about the Registrar-General and his prominent role in the regime: transcript at pp 52-53. While that evidence was not directly corroborated by the Country Information report by DFAT, the report did refer to concerns over the inefficiency of the Central Registry and the potential for bribery of officials: exhibit 9 – Zimbabwe: Country Information Request at [5.22]. It also referred to the courts being compromised which has implications for the efficacy of judicial review: exhibit 9 – Zimbabwe: Country Information Request at [5.12].
Thirdly, s 5(1) of the Registration Regulations does not require that the birth be registered in the same country where the child is born. The language of the provision suggests the registration process can be initiated at a diplomatic or consular office in the country where the applicant then resides using form B.D.3. (I was not provided with a copy of that form, and it does not appear to be available on the Registrar-General’s website or on the Canberra embassy’s website.) While the person reporting the birth is under a duty to register the birth within 42 days (s 11(2) of the Registration Act), there is no formal barrier to late registration elsewhere subject to two matters:

the Registrar-General has more latitude to refuse registration if the birth occurred more than 12 months before it was reported, and even more latitude if the person is 18 years of age or older when the birth was reported;
a person who is under a duty to register a birth is guilty of an offence if he or she fails to do so within a reasonable time: Registration Act, s 27(1).

Where does that leave the applicant? For whatever reason, her birth was not registered through the Zimbabwean embassy in Canberra, and there is no evidence of the birth being successfully registered in Zimbabwe. That means she does not currently hold the citizenship of any country. There was ample evidence presented at the hearing that undocumented young persons – especially young females – are in serious danger of exploitation in countries like South Africa. The applicant’s mother gave evidence about the precarious existence of the entire family in South Africa because of their daughter’s situation. I have no reason to doubt her account. Professor Rubenstein, an acknowledged expert on these matters, spoke to the risks in the course of her submissions; while I would not ordinarily rely on evidence of that kind from the bar table, I do not understand there was any dispute on this point.
The question remains: is the applicant entitled to acquire the citizenship of Zimbabwe? It seems to me she has a legal entitlement to citizenship once the notification process is complete. If the notification process worked in accordance with the law I have already discussed, registration as a citizen should be a formality.
While the Zimbabwean law I have discussed suggests there is indeed a legal entitlement to acquire citizenship in Zimbabwe, the applicant says there are practical obstacles to obtaining citizenship that effectively put citizenship out of reach. The Tribunal has acknowledged that practical obstacles may be of such an order that a person is ‘not entitled to acquire’ citizenship in the sense intended by the Act notwithstanding the existence of a formal legal right: see, for example AP and Minister for Immigration and Border Protection [2014] AATA 706 at [56] per SM Taylor. As DP Frost explained in KKRG and Minister for Immigration and Border Protection [2015] AATA 635, a person is not genuinely entitled to acquire the citizenship of another country if the application requirements “are so onerous as to undermine or negate the ‘underlying eligibility or qualification’”: at [27].
The decisions in AP and KKRG emphasise that an applicant must do all they can reasonably do to obtain citizenship of the other country through the regular application process. The respondent says that has not occurred here. The applicant’s parents did not register the child’s birth at the Zimbabwean embassy in Canberra and they continue to resist making a formal application that can be accepted or rejected by the Zimbabwean authorities.
Professor Rubenstein says the failure of the applicant’s parents to register her birth in Canberra should not be held against the applicant. She says, in effect, that we must take the applicant as we find her and not visit upon her the sins (if that is what they are) of her parents. The question is what can legally and practically be done now. The applicant’s mother says she does not have all of the documents she is likely to require to initiate the registration process through the embassy in South Africa, including a valid passport. She says the consular officials she has met in South Africa have refused to assist in the past because of the irregularities in her old-style passport. She says she and her husband cannot risk travelling to Zimbabwe on the old passports which mention the applicant because those passports are not valid; but nor can they risk surrendering the passports in return for new ones which do not mention the applicant. Moreover, they cannot leave the applicant behind in South Africa.
Even if those issues could be resolved, the applicant’s mother says a second obstacle remains. She says the Registrar-General has already made clear he will not register the applicant’s birth. While that refusal was oral, she said there is no reason to suppose a further formal application would result in a different outcome, or that it would inevitably produce a written response in a timely way. And time is of the essence in this case, I was told: the fact the applicant and her family appear to be leading an increasingly precarious existence in South Africa limits the options for engaging with the uncertainties of the Zimbabwean bureaucracy.
It is apparent that the outcome of the case turns on whether I accept the applicant’s mother’s account of her meeting with the Registrar-General’s staffer. The respondent says I cannot rely on the applicant’s mother’s evidence given the inconsistencies in her evidence regarding the missing passport The respondent says those inconsistences give rise to questions of credit.
The fact the applicant’s mother was not a reliable witness with respect to one matter does not mean she is inevitably an unreliable witness with respect to everything else. Desperate and frightened people sometimes say or do things because of the circumstances in which they find themselves. They do not always exhibit good judgment, and they are not always used to being frank with government officials who – in many countries – may be corrupt, incompetent, prejudiced, or mean. The fact an individual’s credibility is called into question does not mean his or her underlying claims can be rejected out of hand. I must still evaluate each of the claims she has made in all the circumstances.
I accept the applicant’s mother’s account of her encounter with the Registrar-General’s staffer notwithstanding the questions that have arisen about her reliability. The reported behaviour of the Registrar-General and his staff is consistent with the evidence provided by AB who said the Registrar-General played a pivotal role in the regime: transcript at pp 52-56. I was told the regime was not disposed to make it easy for persons with connections to western countries or persecuted minorities within Zimbabwe to return home. While the DFAT Country Information Report suggested only high-profile émigrés and critics of the regime were likely to face a serious risk of harassment (exhibit 10 – DFAT Country Information Report: Zimbabwe dated 11 April 2016 at [5.21]), that is not inconsistent with the claims of low level harassment and administrative intransigence experienced by the applicant’s family. The Country Information Report also referred to the regime’s efforts to suppress voting: exhibit 10 – DFAT Country Information Report: Zimbabwe dated 11 April 2016 at [3.18]. AB pointed out in her oral evidence that control of records and registration was an important priority for the regime because it wanted to limit voter turnout.

There does not appear to be any doubt the applicant’s parents dealt with officials in the Registrar-General’s office who took what would appear to be the unusual step of issuing the family with ‘old-style’ passports rather than issuing newer travel documents. The applicant’s mother says the official who issued the documents did so because the names of all the children could be added to the old documents whereas the newer-style passports would be issued to each individual apart from the applicant. That explanation is plausible in the circumstances. I am inclined to accept it because the alternative seems so unlikely: that being the applicant’s mother is prepared to gamble with the safety of her entire family who remain at risk in South Africa so she can take advantage of Australian citizenship laws. It remains unclear why the applicant’s parents did not attempt to register her birth at the embassy in Canberra shortly after that occurred. It is unclear what the parents intended when they failed to register the birth of the applicant in Canberra. There is a possibility they had it in mind that failing to register the child might create some advantage under Australian citizenship law down the track. But even if the applicant’s parents now find themselves in a situation that may be of their own making, events appear to have overtaken them. I was left in no doubt as to the seriousness and vulnerability of their situation. I am satisfied from the applicant’s mother’s evidence that if she were able to sort out the applicant’s registration when she was dealing with the Registrar-General’s office, she would have done so.
I accept the officer in the Registrar-General’s office orally declined to register the applicant’s birth. In circumstances where there is significant doubt about the integrity and efficiency of the decision-making processes (see, for example, the evidence of AB: transcript at p 55) and where – in the unusual circumstances of this case – I am satisfied that time is of the essence, I accept the practical obstacles to acquiring citizenship are such that the applicant does not have an entitlement to registration in the sense intended by the legislation. Whatever missteps have occurred along the way, I am satisfied the applicant’s family has done all that can reasonably be expected in the circumstances to obtain registration of the applicant’s birth. The missteps, in any event, should not be held against the applicant who is a minor, and who is at serious risk of exploitation and harm.

Conclusion

I should note that events in Zimbabwe are fluid at the time of writing. The president has been removed and new arrangements will presumably emerge. It is not clear whether there will be reforms that would remove the practical obstacles to the applicant’s registration as a citizen in that country. But it will be some time before the new regime changes shape. The applicant appears to be vulnerable now. After hearing from the parties, I am not persuaded it would be appropriate to wait and see how things turn out.
The decision under review is set aside. I decide in substitution that the applicant is eligible to obtain Australian citizenship under s 21(8) of the Australian Citizenship Act 2007.

I certify that the preceding 62 (sixty-two) paragraphs are a true copy of the reasons for the decision herein of Deputy President Bernard J McCabe

............................[sgd]............................................

Associate

Dated: 27 November 2017

Dates of hearing:	14 September 2017 and 3 November 2017
Advocate for the Applicant:	Professor K Rubenstein
Solicitors for the Respondent:	Minter Ellison