Erden v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (No 2)
[2021] FCA 1531
•7 December 2021
FEDERAL COURT OF AUSTRALIA
Erden v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (No 2) [2021] FCA 1531
File number: VID 552 of 2021 Judgment of: THOMAS J Date of judgment: 7 December 2021 Catchwords: CITIZENSHIP – separate question for determination – whether applicant an Australian citizen – where applicant contends that he was granted citizenship as a minor included on his parents’ applications for citizenship – where onus is on applicant to prove that he had been granted citizenship – where applicant contends that the granting of citizenship is not dependent on the issuance of, or inclusion on, a certificate of Australian citizenship
Held: Applicant is not an Australian citizen
Legislation: Australian Citizenship Act 1948 (Cth): ss 5, 12, 13, 15, 17, 22, 23C, 23D, 32
Australian Citizenship Act 2007 (Cth)
Australian Citizenship Amendment Bill 1983 (Cth)
Migration Act 1958 (Cth): ss 189, 501
Nationality and Citizenship Bill 1948 (Cth)
Federal Court Rules 2011 (Cth), r 30.01
Cases cited: Blatch v Archer [1774] 1 Cowp 63
Cayzer v Minister for Immigration and Border Protection (2016) 249 FCR 250
Shahi v Minister for Immigration and Citizenship (2011) 246 CLR 163
Division: General Division Registry: Victoria National Practice Area: Administrative and Constitutional Law and Human Rights Number of paragraphs: 112 Date of last submissions: 30 November 2021 Date of hearing: 24 and 26 November 2021 Counsel for the Applicant: Mr M Guo Solicitor for the Applicant: Victoria Legal Aid Counsel for the Respondents: Ms A Mitchelmore SC with Mr A Solomon-Bridge and Ms N Wootton Solicitor for the Respondents: Australian Government Solicitor ORDERS
VID 552 of 2021 BETWEEN: CEMALETTIN ERDEN
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS
First Respondent
COMMONWEALTH OF AUSTRALIA
Second Respondent
ORDER MADE BY:
THOMAS J
DATE OF ORDER:
7 DECEMBER 2021
THE COURT ORDERS THAT:
1.The separate question be answered as follows:
Question
Whether the applicant is, or has been since 2 October 1985, an Australian citizen
Answer
No
2.The application be dismissed.
3.The applicant pay the respondents’ costs, as agreed or taxed.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
THOMAS J:
INTRODUCTION
The applicant, Cemalettin Erden, is currently in immigration detention as his Class BF Transitional (Permanent) visa was mandatorily cancelled under s 501(3A) of the Migration Act 1958 (Cth). By operation of s 189 of the Migration Act, the applicant was detained in immigration detention by the respondents on 28 September 2021 and continues to be detained.
The applicant seeks a declaration from this Court that he is an Australian citizen. He also argues that his detainment in immigration detention is unlawful on the basis that he is an Australian citizen and seeks a writ of habeas corpus as well as damages.
Pursuant to r 30.01 of the Federal Court Rules 2011 (Cth), the parties requested that the Court first determine the following question separate to any other question in these proceedings (Separate Question):
Whether the applicant is, or has been since 2 October 1985, an Australian citizen.
For the reasons that follow, the answer to the Separate Question is “No”.
THE LEGISLATION AND POLICIES
The applicable legislation is the Australian Citizenship Act 1948 (Cth) (1948 Citizenship Act), which has since been repealed and replaced by the Australian Citizenship Act 2007 (Cth). Both parties noted that the resolution of the Separate Question turns on the effect of the provisions of the 1948 Citizenship Act as at 2 October 1985.
Part III of the 1948 Citizenship Act sets out mechanisms by which a person might have Australian citizenship. Part III, Division 1 deals with circumstances in which a person is an Australian citizen by operation of law: see ss 10 to 10B.
Part III, Division 2 deals with the grant of Australian citizenship. Division 2 does not apply to a person who is an Australian citizen: s 12.
Part III, Division 2 requires the Minister to exercise a discretion to grant a certificate of Australian citizenship.
Section 13 of the 1948 Citizenship Act provided the basis for the grant of Australian citizenship through the grant of a certificate. Section 13 relevantly provides that:
13. (1) Subject to this section, the Minister may, in his discretion, upon application in accordance with the approved form, grant a certificate of Australian citizenship to a person who satisfies the Minister that –
(a) he is a permanent resident;
(b) he has attained the age of 18 years;
(c) he understands the nature of the application;
(d) he has been present in Australia as a permanent resident for a period of, or for periods amounting in the aggregate to, not less than one year during the period of 2 years immediately preceding the date of the furnishing of the application;
(e) he has been present in Australia as a permanent resident for a period of, or for periods amounting in the aggregate to, not less than 2 years during the period of 5 years immediately preceding the date of the furnishing of the application;
(f) he is of good character;
(g) he possesses a basic knowledge of the English language;
(h) he has an adequate knowledge of the responsibilities and privileges of Australian citizenship; and
(j) if granted a certificate of Australian citizenship, he is likely to reside, or continue to reside, in Australia, or to maintain a close and continuing association with Australia.
…
(9)subject to sub-section (11), the Minister may, in his discretion, upon application in accordance with the approved form, grant a certificate of Australian citizenship to a person –
(a) who has not attained the age of 18 years;
(b) who –
(i)has attained the age of 18 years; and
(ii) has made the application before attaining that age;
…
(10) Subject to sub-section (11) the Minister may, in his discretion, upon application in accordance with the approved form, include in a certificate of Australian citizenship, either at the time of granting the certificate or by later amending the certificate under this section, the name of a child who has not attained the age of 16 years and of whom the grantee is a responsible parent.
From the words used, it is clear that the Minister must, in their discretion, make a positive decision to grant a certificate.
In contrast to sub-ss 13(1) and (9), the application under s 13(10) is made by the parent with the name of the child being included in a certificate issued to the parent. There is no requirement that the included child must satisfy conditions such as those which are outlined in s 13(1). What occurs is that the name is included in the certificate of the responsible parent rather than a certificate being issued in the name of the child. A responsible parent is defined in s 5 as:
…a person, whether or not a parent of the child, who, under a law in force in a foreign county or a law of the Commonwealth, a State or a Territory, whether by reason of adoption, operation of law, an order of a court or otherwise, has guardianship or custody of the child whether jointly or otherwise;
Section 15 of the 1948 Citizenship Act sets out the effect of the grant of a certificate. Section 15 relevantly provides that:
15. (1) A person to whom a certificate of Australian citizenship has been granted under this Division shall be an Australian citizen –
(a) in the case of a person –
(i) who, at any time after the lodging of an application for a certificate of Australian citizenship (including a time after the grant of the certificate), takes an oath of allegiance or makes an affirmation of allegiance in the manner provided by this section and in accordance with the appropriate form set out in Schedule 2;
and
(ii) to whom paragraph (b) does not apply –
on and after the date on which the certificate is granted or on which the person takes such an oath or makes such an affirmation, whichever last occurs; or
(b) in the case of a person –
(i) who has not attained the age of 16 years; or
(ii) to whom sub-section 13(2) applies –
on and after the day on which the certificate is granted
…
(4) A person whose name is, under sub-section 13(10), included in a certificate of Australian citizenship shall, if not already an Australian citizen, be an Australian citizen as from the date upon which his name is so included or the date upon which the grantee of the certificate of Australian citizenship becomes an Australian citizen, whichever is the later.
…
The importance of the certificate is again clear from s 15.
At the relevant time, policies relating to the processing or approval of citizenship applications in respect of minors were contained in the 1982 Australian Citizenship Instructions (1982 ACIs).
The relevant passages (using updated references to the sections of the 1984 Citizenship Act as at 2 October 1985) are as follows (emphasis in original):
88 INTRODUCTION
88.1 Section [13(9)] provides, notwithstanding any of the requirements of [s 13(1)], that the Minister may upon application in the approved form grant Australian citizenship to a person who has not attained the age of 21 years.
88.2 Applicants for the grant of citizenship may be considered from the following categories;
i) Persons who have attained the age of 18 years but not 21 years;
ii) Minors 16 years of age and over but under 18 years;
iii) Children under 16 years of age
89 AGE 18 TO UNDER 21 YEARS
89.1 Persons in this category would normally be expected to meet all of the requirements of [s 13(1)]. However, because of the discretionary powers provided by [s 13(9)], it is a general rule to exempt such persons from the residential requirements… where it is considered that the circumstances justify such action or where hardship would result from having to satisfy the normal period of residence, provided they have been admitted to Australia for residence and are living permanently in Australia. Other requirements for the grant of citizenship are to be met in such cases.
90 AGE 16 TO UNDER 18 YEARS
90.1 Persons in this category may be considered under the same criteria as for the 18 – 20 year group above and in addition must furnish the consent of their responsible parent. …
91 UNDER 16 YEARS
91.1 Children under 16 years of age wishing to acquire citizenship are usually granted citizenship by having their names included in their responsible parent’s certificate of citizenship.
(a) Children included in responsible parent’s application
Children under the age of 16 years may have their names and personal particulars included in an application for citizenship lodged by their responsible parent provided they have been admitted to Australia for residence and are living in Australia at the time of the application and the grant of citizenship.
When the application of the responsible parent is approved, the particulars of the children under 16 years of age in the application are included in the certificate issued to the responsible parent or guardian. ([Section 13(10)]. Children whose particulars have been included in a certificate in accordance with these provisions become Australian citizens on the date on which their responsible parent becomes an Australian citizen ([Section 15(4)]).
138.9CHILDERN WHO ATTAIN THE AGE OF 16 BEFORE GRANT OF PARENT’S CERTIFICATE
Where it is obvious that a child whose name is included in an application will attain the age of 16 years before the grant of citizenship to his/her responsible parent, the child should be invited to lodge a separate application.
THE EVIDENCE/FINDINGS OF FACT
The documentary information before the Court consisted of papers from records held by the Department of Home Affairs which included applications, contemporaneous notes from departmental officers, a cover note called the ‘Citizenship Processing Cover Sheet’, as well as extracts from various government databases.
Each party was critical of the accuracy of the information contained in the government databases. The criticism was on the basis that there is no evidence as to the circumstances of creation of the record or accuracy of the data. Moreover, many of the records post-dated the relevant events and so were not contemporaneous and must have been prepared upon secondary information, of an unspecified nature or source.
I agree with the concerns expressed by the parties and give such records little weight in their own right.
A number of submissions were made about the correctness of the policy contained in the 1982 ACIs which was influenced by the view taken regarding the effect of the legislation.
For example, one such issue was whether, to be included in the certificate of the responsible parent, it was necessary that the applicant not have attained the age of 16 years at the time of the grant of the responsible parent’s certificate so as to be included in that certificate.
Regardless of the correctness of the policy, I have taken account of the fact that as it was the policy at the time, it was more likely than not that the departmental officers would have operated in accordance with the policy.
The applications for Australian citizenship in 1984 and 1985
The applicant was born in the Republic of Turkey in 1968 to Ayse (mother) and Bahattin (father) Erden (parents). The applicant first arrived in Australia with his parents in 1969 when he was four months old.
In September 1984, when the applicant was 15 years old, the applicant’s parents lodged separate applications for Australian citizenship with the then Department of Immigration and Ethnic Affairs (the 1984 applications). The 1984 applications were received by the Department on 19 September 1984.
At the time the 1984 applications were lodged, the applicant was overseas in Turkey on a holiday with his older brother, Osman. Movement records before the Court indicate that the applicant returned to Australia on 6 March 1985.
The applicant’s details were included in both 1984 applications under the heading “CHILDREN OF APPLICANT Children under 16 years of age not born in Australia whose name you wish to include in your application”, along with his older brother Osman, who was also born in Turkey, and his two younger sisters Huyla and Leyla, who were born in Australia.
The applicant’s details were also included in supplementary forms to the 1984 applications entitled “Personal Statement in Support of an Application for Australian Citizenship” dated 25 September 1984. The applicant’s details were included in both parents’ personal statements but were crossed out in Bahattin Erden’s Personal Statement.
Each Personal Statement form contained a section to be completed by the “Interviewing/Authorising Officer” which was headed “I certify that I have completed/checked the above form in accordance with the information supplied to me by the applicant”. In each form this section was left blank and was not signed.
There is an entry in the departmental file dated 23 November 1984 which reads (in so far as relevant):
the father Bahattin Erden has included 2 sons, Ogden … and Cemalettin … on his [application] and personal statement… (Both over 16 so should be on separate [applications])
R/S file for one month so when new applications are available, we can send 2 new ones to both A/N sons.…
The contents of this entry, including as to the forwarding of applications, are consistent with the requirements of policy 138.9 of the 1982 ACIs to the effect that where it is obvious that the child whose name is included in an application will attain the age of 16 years before the grant of citizenship to his/her responsible parent, the child should be invited to lodge a separate application. It is also consistent with the respondent’s submission that the statute did not permit a child over 16 (at the time of the grant of the certificate) to be included in the responsible parent’s certificate of Australian citizenship.
There is a brief entry dated 8 February 1985 which reads “M124s dispatched”. The reference to form M124 is the “application for Australian citizenship” form.
The applicant’s parents returned the M124 “application for Australian citizenship” forms in their name to the Department (the 1985 applications). The completed 1985 applications were signed by the applicant’s parents and dated 11 February 1985, and are date stamped as having been received by the Department on 13 February 1985.
There is no clear evidence before the Court as to why the applicant’s parents filled out the 1985 applications. Bahattin Erden deposed in his affidavit dated 17 November 2021 (at [15]) that “I did not remember more than one application for us but, having been shown copies of forms with my and my wife’s names on them, dated 1985…, I now remember there being other forms, but I don’t know why they were completed, only that they related to citizenship”. Bahattin Erden also deposed that he could identify five words on Ayse Erden’s form in his hand-writing.
Bahattin Erden further deposed (at [7]-[9]) that “I do not remember ever being told by anyone that [the applicant] needed to make his own application for citizenship”, that it was always his and his wife’s intention of that “all of us become citizens” and that his daughter, Huyla, dealt with immigration officials and completed all the forms “without too much conversation with us”.
As to dealings with the department, the evidence of Bahattin Erden was that as their English was poor, they relied upon their children, in particular their daughter, to translate any government letters and fill out the forms. He said it was usual for their daughter to read all government mail and paperwork addressed to them and for her to complete any forms. He deposed (at [7]) that “it was usual for her to complete them without too much conversation with us, including her not explaining to us each question on the form or reading out any instructions that may have been on the form. She would complete them and say ‘sign here’.” In re-examination he confirmed that, in addition to relying on their daughter to read and complete government forms, their daughter also spoke to people from the government on their behalf.
The applicant submitted in his written submissions that the 1985 applications were sent at this time because the Department had redesigned new pro formas in 1985 and that the Department, either by bureaucratic mistake or misconception, required new applications to be filled out. There is no clear evidence which supports this submission. Rather, the reason why the 1985 applications were sent was, more likely than not, that which was outlined in the contemporaneous note which is consistent with the requirements of the policy that a person who is over the age of 16 at the time of the grant of the certificate could not be included in the responsible parent’s certificate of citizenship resulting in the need for the person to make their own application.
Based on the evidence, I conclude that by way of the 1985 applications signed on 11 February 1985 and received by the Department on 13 February 1985, Ayse and Bahattin Erden made fresh applications for Australian citizenship.
The nature of the claim for citizenship: the applicant was a part of the 1984 application and not the 1985 applications
There is no evidence before the Court that an application for Australian citizenship was returned by the applicant either at the time the 1985 applications were lodged or at any time; indeed, the applicant was, at the time the 1985 applications were lodged, in Turkey.
As noted above, the applicant’s name was included in the Personal Statements lodged by the applicant’s parents as part of the 1984 applications under the heading “CHILDREN OF APPLICANT Children under 16 years of age not born in Australia whose name you wish to include in your application”.
In the completed 1985 applications lodged by the applicant’s parents, the question of whether the citizenship applicant would like to include children in their application is found at question 16. Question 16 reads:
Do you wish to have any children under 16 years of age, who are not Australian Citizens, included in this application? (Children 16 years and over must complete a separate application). If you have answered “yes” please complete PART D
In each form, the word “no” was included as the answer. It is not in dispute that the applicant was over the age of 16 by the time the 1985 applications were lodged and could not have been included in those applications. In each form, Part D was not completed but, rather, contains a line crossed through the page.
Each of the 1985 applications contain a section headed “OFFICIAL USE ONLY”, which contained various criteria that required verification by the Department. On each application, the various criteria have been marked. At the base of this page the words “approved/refused/deferred” are printed, along with a signature line for the “Determination Officer”. On each of the 1985 application, the words “refused/deferred” had been struck through and the “Determination Officer” signed the document on 24 July 1985.
The application process: the steps taken by the Department
During the course of oral submissions, the parties referred to the fact that the Department had taken steps in what seems to be the progressing of an application of citizenship for the applicant. The steps taken by the Department included the scheduling of interviews with the applicant and the conduct of various background checks. The applicant sought to draw inferences from the evidence that the Department had taken steps to progress an existing application relating to the applicant (being the 1984 applications in which he was named); the inference drawn by the respondents was that the Department was taking steps in anticipation of the applicant making an application for citizenship.
The evidence before the Court indicates that at the interview on 17 June 1985, Bahattin Erden was given a separate application form to take home to the applicant, and that he had given his consent to something at the interview. A handwritten note on the Department file dated 17 June 1985 reads:
gave separate application for father to take home to Cemalettin … Father gave his consent at his [interview] today. Made [interview] appointment for 24–6–85 at 3PM.
When pressed during cross-examination, Mr Bahattin Erden did not have a specific recollection of attending this interview, or of it occurring, but did not deny it occurred.
The applicant sought to infer that the words ‘gave his consent’ were in relation to an existing application, having regard to the words in paragraph 90.1 of the 1982 ACIs; the respondents inferred that the consent, having regard to paragraph 90.1, was in relation to a new application.
The effect of the 1982 ACIs was that a person over the age of 16 but under the age of 18 could not have been included in the responsible parent’s certificate of citizenship pursuant to s 13(10). A person in that age bracket could not have applied under s 13(1), having not attained the age of 18. As a result, if a person in that age bracket wished to become a citizen, it would have been necessary for that person to make application pursuant to s 13(9) which allowed the grant of a certificate of Australian citizenship to a person under 18 years of age.
As to that application, the 1982 ACIs, at policy 90.1, were to the effect that persons in this category would be considered under the same criteria as in the older age categories (i.e. as set out in the current s 13(1)) and would also be required to furnish “the consent of their responsible parent”. The actions outlined in the entry dated 17 June 1985 are consistent with the departmental officer complying with that requirement of the policy, namely, obtaining the consent of the responsible parent, which in this case was the applicant’s father. I conclude that the meeting took place and the entry record is accurate. The inference sought to be drawn by the applicant is inconsistent with actions of the Department and the policy at the time, which at paragraph 90.1 states that the consent has to be obtained from the responsible parent. The more compelling inference is that the consent was obtained in relation to the anticipated application from the applicant as he had fallen into the 16-18 age bracket.
In relation to the various background checks conducted by the Department, a record from the computer database held by the Department called ICSE was in evidence. As a preliminary observation, the commencement date specified in the record is 24 June 1985. That date is consistent with the date set for the proposed citizenship interview with the applicant.
In addition, from the ISCE record, it seems a “MAL check” was initiated on 24 June 1985 and a police check was initiated on 8 July 1985. The applicant noted that “MAL” stands for “Movement Alert List”. These checks are consistent with the requirements of the 1982 ACIs as to the criteria to be considered in the evaluation of a proposed application under s 13(9) for a person aged between 16 and 18 years. Those checks are not consistent with the processing of an application pursuant to s 13(10) – such as the 1984 applications – as no checks of this type were suggested in the 1982 ACIs for such applications.
Based on the evidence and the application of the policy at the time, the inference drawn by the applicants is to be rejected: the actions as recorded on the file note, in particular the giving of a fresh application for Bahattin Erden to take home to the applicant and the obtaining of his consent, when read in conjunction with the policy and the checks stated in the ISCE record, indicate that the Department was taking steps in anticipation of the applicant making an application for citizenship. As such, I conclude that these steps were taken in anticipation of the applicant making an application for citizenship which was to be discussed at a citizenship interview scheduled to take place on 24 June 1985.
The scheduled interviews and the approval of the 1985 applications for citizenship
The evidence before the Court indicates that the applicant did not attend the interview scheduled for 24 June 1985 and another interview was scheduled for 12 July 1985. A handwritten entry on the Department file dated 5 July 1985 records that a departmental officer:
rang Erdens re Cemalettin not turning up for his [Interview] on 24-6-85. Sister said he forgot and she forgot to ring us the next day to apologise. Made new appointment for 3 PM next Friday 12-7-85.
This communication that took place is consistent with the evidence of Bahatten Erden regarding the family’s lines of communications with the Department.
I conclude that this discussion took place and that the record is accurate.
It does not appear that the applicant attended the interview scheduled for 17 July 1985. A further handwritten entry on 24 July 1985 records that the departmental officer:
rang Erdens re Cemalettin DNA for above interview on 12-7-85. Sister said they sent us a letter cancelling this appt. I said it hasn’t been put on file yet. I explained how her brother Cemalettin’s not turning up for interview is delaying our approval of his parent’s application. She advised me to go ahead and approve both parents and if Cemalettin does decide to continue, he’ll post in his application at some future date. (No BR no. given)
The applicant referred, during oral submissions, to the fact that the Department had taken instructions from the applicant’s sister and submitted that it could not have been reasonably supposed that the Department could have taken instructions from the applicant’s sister to not confer or deny the applicant citizenship and sought to infer from the above file notes that the Department had understood and processed the applicant as part of his parents’ applications for citizenship.
The fact that the departmental officer was communicating with the applicant's sister on behalf of the applicant’s parents was again consistent with Bahattin Erden’s evidence regarding the communication arrangements which were in place. The content of the entry is consistent with the making, and progressing, of the 1985 applications by the applicant’s parents and of the anticipation that an application would be made by the applicant personally which could be considered and processed at the same time as the 1985 applications. The inference to be drawn from the evidence is that the applicant’s sister advised the departmental officer that the 1985 applications should not be delayed, and that the applicant would file an application at a later time. Contrary to the applicant’s submission, the evidence does not indicate, and an inference cannot be drawn, that the departmental officer had acted on the instructions of the applicant’s sister to not confer or otherwise deny the applicant citizenship based on the 1984 applications.
The form in which the departmental officer communicated with the applicant’s sister is also consistent with the history of the Department’s communication with the applicant’s family, as it was the same departmental officer who recorded the handwritten notes of 23 November 1984, 5 July 1985 and 24 July 1985, evidence of which can be inferred through the identical signatures that appear in each of those notes. I observe that the same signature appears on each of the 1985 applications in the signature line of the “Determination Officer” who approved those applications on 24 July 1985.
The applicant sought to draw inferences from the above evidence that what the departmental officer had approved was the 1984 applications in which the applicant was included. There is no evidence which supports such an inference. Rather, the evidence noted above indicates that the departmental officer had approved the 1985 applications. The inference suggested by the applicant ought to be rejected. There is no indication on any of the pages of the 1984 applications nor the Personal Statements that were part of the 1984 applications, that the applications were checked by a departmental officer or approved by a departmental officer. The respondents referred to the fact that the Personal Statements included a section where an “Interviewing/Authorising Officer” had to fill out to confirm they had verified the information on the forms were accurate, which was the equivalent of the page marked “OFFICIAL USE ONLY” on the 1985 applications. As noted above, there is no evidence that the “Interviewing/Authorising Officer” had checked or verified the 1984 applications. In contrast, there is evidence that the 1985 applications were approved as is evident from the signature that appears on the last page of both applications and the checking of criteria for citizenship on both applications. I observe that the criteria checked off by the departmental officer on both 1985 applications were consistent with the criteria for citizenship as stipulated in s 13(1).
This is also consistent with the contemporaneous evidence contained in the departmental file. On a page headed “Department of Immigration and Ethnic Affairs Brisbane Citizenship Processing Cover Sheet”, a line that read “Application Approved was amended by hand by the same departmental officer (or “Determination Officer”) to read “2 Applications Approved” and was signed and dated 24 July 1985. The fact that the 1985 documents were signed as “approved”, along with the contemporaneous file notes mentioned above, leads to a compelling inference that what was approved was the 1985 applications, not the 1984 applications.
Having regard to the evidence, I conclude that the conversation took place on 24 July 1985, that the entries on the departmental record are accurate and that, following the conversation, the departmental officer took immediate steps to determine, and approve, the 1985 applications made by the applicant’s parents, as discussed during the conversation.
Following the approval by the “Determination Officer”, the applicant’s parents attended a citizenship ceremony on 2 October 1985, swore an oath of allegiance before the Lord Mayor of Brisbane and were issued certificates of Australian citizenship. The applicant deposed that he was present when his parents took the oaths of allegiance and that he had also taken an oath of allegiance at the same time.
The Cover Sheet refers to “certificates issued” to “Ayse” and “Bahattin” and recorded in hand-writing the certificate numbers. The certificates issued to Ayse Arden and Bahattin Arden were dated 2 October 1985 and bore the same certificate numbers that were recorded in the Cover Sheet. It is not in dispute that the certificates did not include the name of the applicant.
There is no evidence before the Court of a certificate having been granted to the applicant.
THE QUESTION BEFORE THE COURT: DISCUSSION AND RESOLUTION
As noted above, the question before the Court is whether the applicant is, and has been, an Australian citizen since 2 October 1985.
The resolution of this question depends upon the construction and operation of the 1948 Citizenship Act as at 2 October 1985 to the facts. The factual dispute between the parties is around the operation and effect of the 1984 applications.
Broadly, the applicant contended that neither he nor his parents had withdrawn the 1984 applications, the 1984 applications were approved by the Minister, and that, by law, the applicant had acquired Australian citizenship when his parents became Australian citizens on 2 October 1985.
In the context of the grant of Australian citizenship, the 1948 Citizenship Act requires a positive discretionary decision on the part of the Minister (or their delegate). Section 13(1) provides that the Minister may, in his discretion, grant a certificate of Australian citizenship to a person over the age of 18. Section 13(10) provides that the Minister may, in his discretion, include in a certificate the name of a child who has not attained the age of 16 and of whom the grantee of the certificate is a responsible parent. Section 13(9) provides that the Minister may, in his discretion, grant a certificate in cases where the child is over the age of 16 but under the age of 18.
The onus is on the applicant to establish the existence of a positive discretionary decision by the Minister (or their delegate) to grant him a certificate of Australian citizenship, or include his name on a certificate granted to a responsible parent.
The respondents contend that there is no evidence of any positive discretionary decision to grant the applicant citizenship (whether by inclusion on a responsible parent’s certificate or in his own right). Rather, the submission is that there is ample evidence indicating such a decision was not made. The respondents contend that this fact alone was enough to dispose of the application.
The relevant events occurred more than 35 years ago. Bahattin Erden’s evidence was that the dealings between the family and the Department were through his daughter, who has been estranged from him for many years, and was not called to give evidence. The departmental file was in evidence before the Court and each party made submissions regarding the significance of the various entries contained in that record.
In the section headed “the evidence/findings of fact” I have analysed the evidence available and have set out the findings which I make.
The applicant made a number of submissions about the operation and effect of the 1984 and 1985 applications and the 1948 Citizenship Act in support of the proposition that he became an Australian citizen when his parents became Australian citizens on 2 October 1985. I will address each in turn.
First, the applicant contended the fact that the 1985 applications were approved (in the physical sense) did not mean that the 1984 application were, as a matter of law, not approved. He submitted there was no evidence indicating that the applicant or his parents had positively withdrawn the 1984 applications or abandoned their rights to apply for Australian citizenship, and, to the contrary, there was evidence that the Department had treated him as an applicant as a departmental officer had in 1985 made reference to him failing to attend an interview and sought to ascertain his criminal record.
As to those contentions, I have concluded above that, based on the evidence, the 1984 applications were not approved. It follows that no positive discretionary decision was made in relation to those applications. In contrast to the 1985 applications, there is no marking on the applications which indicates that the 1984 applications were approved including marking as to consideration of the conditions to be fulfilled and evidence of approval such as a signature on the applications.
In respect of the 1984 applications, consistent with the policy in place, the departmental officer was of the view that, due to his age, the name of the applicant could not be included in the certificate of either of his parents, and sent the new forms on that basis. The lodgement of the 1985 applications superseded the 1984 applications. The 1985 applications were ultimately processed by the Department and were the subject of the positive discretionary decision made.
I have also concluded that the evidence regarding a failure to attend an interview and the ascertainment of a criminal record were in the context of the proposed making of a fresh application by the applicant. Because of the lack of requirements relating to the child in relation to the application pursuant to s 13(10) the steps identified were not consistent with the consideration of the 1984 applications.
Second, the applicant contended that it need not matter whether the applicant’s name appeared on his parents’ certificates of citizenship. He submitted that the inclusion of a person’s name on a certificate of Australian citizenship is not an essential precondition for the grant of citizenship and is purely administrative in nature. He argued that the proper construction of the 1948 Citizenship Act contemplates circumstances where a person’s citizenship could commence (and cease) without their name being included on a certificate. In support of this contention, the applicant referred to “textual indicators” found in the 1948 Citizenship Act. Alternatively, the applicant submitted that the requirement for inclusion of a person’s name on a certificate of Australian citizenship should be viewed akin to an imperfect obligation. The applicant also submitted that “there was ‘substantial compliance’ with what mattered, namely, the satisfaction of the criteria for citizenship”.
The applicant submitted that his interpretation was supported by extrinsic material including the second reading speech to the Nationality and Citizenship Bill 1948 (Cth) (1948 Bill) which introduced a requirement that the oath of allegiance be taken in public. The applicant submitted that this evidenced an intention to shift away from paper formalities and instead towards a citizenship ceremony. The applicant also pointed to the second reading speech to the Australian Citizenship Amendment Bill 1983 (Cth) (1983 Bill) where no mention was made of a certificate. The applicant also referred to the abolition of the requirement that the Department keep duplicates of all certificates.
The extrinsic material does not clearly support the submissions made by the applicant. The reference in the second reading speech to the 1948 Bill referred to new and additional requirements. In other words, the requirement for the certificate is not said to be replaced. The second reading speech in relation to the 1983 Bill was discussing the form of the oath of allegiance and the abolition of the requirement to keep duplicates was because of the clerical effort in making duplicates. The same Bill retained the requirement that the Minister maintain indexes of certificates of registration and of naturalisation.
It is important to note that extrinsic materials cannot, of course, alter the meaning of what is contained in the statute, which, in this case, is very clear in its requirements as to the importance of the certificate.
As to the “textual indicators” in the 1948 Citizenship Act, the applicant’s submission appears to be that there are various circumstances in which citizenship may commence or cease under the 1948 Act without specific reference to a certificate. The applicant referred to (in this order) ss 13, 15, 32, and 17‑23. The respondents submitted that these provisions cannot displace the clear legislative intention with respect to the certificate, having regard to s 13. I agree with those submissions but will nonetheless address the applicant’s submission, as follows.
With respect to s 13, the applicant noted in his written submissions that s 13(10) allowed for a certificate to “be amended to evidence something that is not the case”.
Section 13(10) provides that the “Minister may, in his discretion, upon application in accordance with the approved form, include a certificate of Australian citizenship…. the name of the child either at the time of granting the certificate or by later amending the certificate” under that section. It is clear that the inclusion of the name in a certificate of citizenship is central to the operation of the section.
With respect to s 15, the applicant noted that there are two distinct “contextual indicators”: (a) citizenship does not necessarily commence at the time of issue of a certificate (s 15(1)); and (b) a certificate can be amended to include the name of a child under the age of ‘if not already an Australian citizen’ (s 15(4)).
Section 15 does not assist the applicant. While it is true that s 15(1) provides an alternative time in which citizenship may commence, such time commences either on or after the grant of a certificate. This is clear from the words of s 15(1).
The reference to “if not already an Australian citizen” in s 15(4) must be read in conformity with other provisions in the 1948 Citizenship Act. As noted above, ss 10 to 10B provide bases upon which a person may be a citizen by operation of law. I agree with the respondents’ submission that the act of granting a certificate and inclusion in a certificate are different and that the words “if not already an Australian citizen” takes into account children who had acquired citizenship by operation of law whom the non-citizen parent would, for completeness, like included in their certificate. In such circumstances, a non-citizen parent could have a child, who is already an Australian citizen by force of law, included in their certificate, the inclusion of which would have no legal effect on the child’s citizenship as the section does not apply to Australian citizens: s 12.
The applicant referred to s 32. Section 32 deals with the Minister having a positive discretion, upon application, to issue a certificate to a person whose citizenship status is in doubt. The applicant noted that s 32(3) specifically refers to the issuance and effect of a certificate issued under this section is “without prejudice to evidence that [the citizen] was an Australian citizen at an earlier date” and that it would be unnecessary to include such provision if citizenship was tied to a certificate.
Section 32 does not assist the applicant as the section is applicable to not just persons who have been granted a certificate, but also to persons who acquired citizenship by operation of law. Presumably, a person applying to the Minister under s 32 would have to satisfy the Minister with some evidence that they are a citizen such that the discretion is exercised, evidence which cannot be a certificate in cases of persons whose citizenship was conferred by operation of law. The ‘without prejudice’ provision does no more than state that there should be no doubt that a person may have been a citizen at an earlier stage based on the evidence produced. The section does not have the effect the applicant contends.
With respect to the cessation of citizenship provisions in ss 17-23, the mechanisms by which citizenship may be lost or cease need not depend on an act done or reference to a certificate due to those provisions applying to all citizens regardless of whether they acquired citizenship through grant or by operation of law. None of these provisions assist the applicant’s construction.
The applicant also referred to s 23D during the course of oral submissions, which is headed “Special provisions to prevent persons being stateless” as a “textual indicator”. Specifically, the applicant referred to the fact that a certificate is not issued under this section; rather, a person can apply to the Minister using the same form for the grant of citizenship, and upon application, the Minister can decide to register the person as an Australian citizen. For present purposes, it is sufficient to note that this is another category in which the Parliament had prescribed a condition that must be satisfied in order for citizenship to take effect.
In response to this submission about the construction of the 1948 Citizenship Act, the respondent submitted that the Court was bound by the decision of the Full Court in Cayzer v Minister for Immigration and Border Protection (2016) 249 FCR 250 as it sets out the relevant onus in cases where a person’s citizenship is in issue. The Court observed:
By reason of s 15 of the Australian Citizenship Act the appellants citizenship claim was bound to fail unless he established, on the balance of probabilities, that the Minister had granted him a certificate of Australian citizenship in the exercise of discretion conferred by [s 13]. Her Honour found that the appellant had not established, on the balance of probabilities, that the Minister had granted him a certificate of Australian citizenship in 1981 or at any other time. This finding was, as s 15 indicates, fatal to the appellant's claim that he had become an Australian citizen. Even if Her Honour had been persuaded that the appellant had taken an oath pursuant to s 15(1)(a) of the Australian Citizenship Act in 1981, unless he had been granted a certificate of Australian citizenship, he could not have become an Australian citizen. …
As the Court observed, the lack of a certificate is fatal to a claim for citizenship, an observation that is equally applicable to the applicant’s arguments with respect to the requirement to be included on a certificate. I reject the applicant’s submission regarding imperfect obligation or that citizenship can be granted through substantial compliance. The granting of, or inclusion on, a certificate through a positive discretionary decision made by the Minister is not merely administrative in nature; such act is central to the grant of citizenship. The findings I have made above do not lead to a conclusion that the applicant was, at any stage, granted or included in a certificate. The applicant has not satisfied the onus in that regard. The applicant’s submission must be rejected.
Third, the applicant contended that the 1985 applications were not, as a matter of law, required to be filed. The applicant contended that the filing of the 1985 applications was attributable to bureaucratic error or a mistake as the Department had issued a new set of application forms in 1985, the effect of which had no bearing on the 1984 applications. In other words, the 1984 applications were, in law, the only applications made by the applicant’s parents.
As to this contention, I have found that there was no clear evidence to support the assertion regarding bureaucratic error. I have also found that the applicant’s parents made the 1985 applications on 11 February 1985 which were received by the Department on 13 February 1985 and were approved on 24 July 1985.
With respect to the 1984 applications being, in law, the only applications made by the applicant’s parents, the grant of citizenship under s 13 is dependent on the application (in an approved form) which was before the Minister at the time the Minister or their delegate made the decision. A citizenship applicant might, in fact, lodge more than one application but the application that is ultimately before and considered by the Minister (or their delegate) under s 13 is, in law, the application made. In this case, the respective applications lodged by the applicant’s parents in 1985 were, for the purposes of the positive discretionary decision that was made in accordance with s 13, the applications made.
Even if I were to be satisfied based on the evidence that the 1984 applications were approved (which I am not), there is an issue (mentioned later in these reasons) about whether the applicant could have been included on either of his parents’ certificates issued on 2 October 1985 as he was over the age of 16.
Forth, the applicant contended the fact that the applicant had turned 16 by the time of the citizenship ceremony did not alter the nature of him obtaining Australian citizenship as he had fulfilled the requirements for the grant of Australian citizenship because he took the oath of allegiance on that day.
The premise of this submission appears to be (a) the applicant was granted citizenship as part of the 1984 applications notwithstanding the absence of a grant of, or his name in, a certificate; and (b) in any event, the applicant had fulfilled the statutory requirements for the grant of citizenship via the taking of an oath of allegiance at the citizenship ceremony. The respondents do not dispute that the oath had taken place (the applicant was not cross-examined as to the circumstances of the taking of the oath) but take issue with the first premise as they contend that the applicant could never have been included on his parents’ certificates by operation of s 13(10) as he was over the age of 16 at the time the certificates were granted.
I note that the parties, during the course of oral arguments, disagreed on whether the respondents’ case in response to this submission was pleaded in their amended defence. The relevant parts of the statement of claim and amended defence are as follows:
(a)Applicant’s statement of claim
13.Further, on the proper construction of the Australian Citizenship Act 1948, and in the circumstances pleaded in paragraph 3, the Applicant’s status as an Australian citizen has not depended and does not depend on whether his name was included on a certificate of Australian citizenship.
Particulars
On the proper construction of the Australian Citizenship Act 1948:
(a) ‘certificate of Australian citizenship’ is merely an evidentiary device which is capable of proving Australian citizenship;
(b)the absence of possession of a ‘certificate of Australian citizenship’, or omission of one’s name from any such certificate, is not evidence which proves that person does not have Australian citizenship;
(c) whether a person, whose name is included on an application for Australian citizenship for their parent, becomes an Australian citizen, instead depends on the legal consequences of the parent becoming an Australian citizen, and not the inclusion or non-inclusion of the person’s name on the parent’s certificate of Australian citizenship.
(b)Respondent’s amended defence
13 As to paragraph 13 the respondents:
a. refer to and repeat paragraphs 8.(b) and 8.(c) above;
b.say that if an application for Australian citizenship which included the Applicant before he attained the age of 16 had been approved (which is denied), the inclusion of the Applicant’s name on his responsible parent’s certificate of Australian citizenship was a condition precedent to his having the status of an Australian citizen; and
Particulars
Sections 15(4) of the 1948 Act as at 2 October 1985.
c. say that after the Applicant attained the age of 16, the grant of a certificate of Australian citizenship to him was a condition precedent to him having the status of an Australian citizen; and
Particulars
Section 15(1) of the 1948 Act as at 2 October 1985.
d. otherwise deny the paragraph.
As I have found that the 1985 applications (not the 1984 applications) were approved and there is no evidence the applicant was granted a certificate, it is not necessary to deal with this submission. Notwithstanding, I observe as follows.
The respondents’ defence to the applicant’s statement of claim at paragraph 13 deals with two issues, namely (a) applicant had not attained the age of 16 (paragraph 13(b)) referring to the requirement that the applicant’s name be included on a responsible parent’s certificate as provided for by ss 13(10) and 15(4), and (b) the applicant attained the age of 16 where the grant of a certificate to him (as opposed to inclusion in a parent’s certificate) was necessary (paragraph 13(c)). I am satisfied that the response in the defence is broad enough to cover the contention that the applicant, having attained the age of 16, could never have been granted citizenship as a result of the 1984 applications.
Section 13(10) provides that “the Minister may, in his discretion, upon application in accordance with the approved form, include in a certificate of Australian citizenship…… the name of a child who has not attained the age of 16 years…”. Based on the words used in this subsection, it follows that the child must be under the age of 16 at the time of the decision regarding inclusion was made. That is a requirement for the discretion being exercised.
It is not in dispute that the applicant was over the age of 16 at the time the 1985 applications were lodged and at a time before a decision would have been taken in relation to the 1984 applications as the applicant had turned 16 one month after the 1984 applications were lodged.
The applicant drew attention to the case of Shahi v Minister for Immigration and Citizenship (2011) 246 CLR 163 as being authority for the proposition that a criterion “should not be transformed into a time of decision criterion when bureaucratic delay would produce an unjust result”; the unjust result in this instance being the inability to be included on a certificate due to the applicant being over the age of 16 at the time the decision to grant citizenship was made despite being under the age of 16 when the 1984 applications were lodged. I agree with the respondents’ submission that Shahi is not authority for that general proposition. In Shahi, the High Court was asked to consider a regulation which included the requirement to “continue to satisfy” a specific criterion in the context where it engaged with only one of several requirements which made up the relevant criterion. The Court took into account a range of matters including the statutory context, the textual awkwardness in reading the requirement that an applicant continue to meet a single criterion as applying to only one of several requirements that make up that criterion, the scope for capricious and unjust operation of the requirement and the drafting history and context which identified readily available forms of words which had been used, and which would have achieved the desired effect, but were not used.
With respect to the taking of an oath, it is clear from s 15 that the taking of an oath is a requirement in addition to the granting of a certificate for a person’s citizenship to take effect. In other words, the granting of citizenship takes effect upon a citizenship applicant (a) being granted a certificate and (b) taking an oath or affirmation of allegiance. The taking of the oath or affirmation of allegiance as prescribed under s 15 is of no significance where there is no positive discretionary decision made under s 13 to grant the applicant a certificate.
Fifth, the applicant contended there is evidence that a positive discretion to grant citizenship was exercised by reason that the applicant had, in fact, exercised the privileges of citizenship as he had voted in two elections and was called for jury duty. In that regard, the applicant also relied upon records from Services Australia showing that, at least on the records of Services Australia and its predecessor agencies, he was a citizen since 2 October 1985.
The evidence to which the applicant refers is contained in a database maintained by Services Australia. There is no evidence as to the way in which the data was inputted or the accuracy or reliability of the database. Each side was, for this reason, critical of information contained in a database. The respondent referred to s 23C of the 1948 Citizenship Act which provides that an Australian citizen who is required to state or declare his national status may state or declare himself to be an Australian citizen and his treatment or declaration to that effect is sufficient compliance with the requirement. The respondent raised the possibility that the applicant may have told a Services Australia employee of his belief that he was a citizen which might have led to the entry. The applicant disagreed with the position advanced by the respondents and maintained that it was within the scope of the respondents to produce evidence to explain how Services Australia recorded the information on their record, which was not done. It is unnecessary to express a view as to the correctness of the respondents’ submission in circumstances where there is no evidence indicating how the Services Australia record came to record the applicant as a citizen. The applicant also submitted that the Court should therefore draw inferences from the Services Australia record in accordance with Blatch v Archer [1774] 1 Cowp 63. This illustrates the uncertainty around sole reliance on a database when there is no information to verify the accuracy of information.
It is not the case that citizenship is conferred by an administrative act such as inclusion in an electoral roll or a jury roll, or via a database entry in a Commonwealth departmental or agency record. Citizenship is not an entitlement for those who are not prescribed in Part III Division 1 of the 1948 Citizenship Act, being categories of people who become citizens by operation of law. Citizenship can otherwise only be granted through the exercise of the discretion set out in the 1948 Citizenship Act, not through any other administrative act.
In any event, the events to which the applicant referred occurred some years after 1985. The dates were unspecified in the evidence. I have found, based upon the evidence before the Court, that there was no evidence of a positive discretionary decision to grant the applicant a certificate of Australian citizenship or to include his name on the certificate of one of his parents. Events which happened at a later time are irrelevant to, and do not alter, this position.
CONCLUSION
The evidence outlined supports the conclusions that:
a.The 1984 applications made by the applicant’s parents contained a request that the applicant be included in their certificates.
b.The 1984 applications were not approved. No positive discretionary decision was made by the Minister with respect to the 1984 applications.
c.Fresh applications were made by the applicant’s parents, being the 1985 applications. The 1985 applications did not include a request that the applicant be included in their certificates. The applicant could not have been included in the 1985 applications as he was over the age of 16 and was required by s 13(9) to lodge an application in his own right.
d.As a result of the 1985 applications, a positive discretionary decision was made by the Minister (via their delegate) to grant certificates to the applicant’s parents, and certificates were issued the applicant’s parents on 2 October 1985.
e.The applicant was not, and could not have been, included in either of his parents’ certificates under s 13(10).
f.The applicant has not made an application for citizenship in his own right at any point in time.
g.No positive discretionary decision has ever been made by the Minister to grant to the applicant a certificate of Australian citizenship.
The applicant has not discharged the burden of proving that there was a positive discretionary decision made by the Minister to grant a certificate or to include his name on the certificates of his parents. It follows that the answer to the Separate Question is “no”.
The respondents have sought orders that the originating application (as amended) be dismissed. I will hear from the parties as to the appropriate orders for the disposition of this application and any orders as to costs.
I certify that the preceding one hundred and twelve (112) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Thomas. Associate:
Dated: 7 December 2021
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