Hampson and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Citizenship)

[2024] AATA 3264

Hampson and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Citizenship) [2024] AATA 3264 (9 September 2024)

Division:GENERAL DIVISION

File Number:2023/5931          

Re:Charles John  Hampson

APPLICANT

AndMinister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

RESPONDENT

DECISION

Tribunal:J Cipolla, Senior Member

Date:9 September 2024

Place:Sydney

The decision under review is affirmed.

. .......................[SGD]....................................

J Cipolla, Senior Member

CATCHWORDS

CITIZENSHIP – application for citizenship by descent – refusal of citizenship –– whether applicant’s parent was present in Australia for at least 2 years prior to application – decision under review affirmed

LEGISLATION

Australian Citizenship Act 2007 (Cth) s. 16

REASONS FOR DECISION

J Cipolla, Senior Member

9 September 2024

THE APPLICATION

1. The Applicant lodged an application for Australian citizenship. As he is a minor, aged 2 years, the application was made on his behalf by his mother Ms Hemsley.

2. The Applicant was born on 3 May 2022 in the United Kingdom, where he and his family reside. His application for citizenship by descent was made on 19 February 2023.

3. On 24 July 2023 that application was refused by a delegate of the Minister on the basis that despite the Applicant’s mother, a British citizen also holding Australian Citizenship by descent, had only 206 days of presence in Australia prior to submitting her son’s application for citizenship. This fell short of the legislative requirements of 2 years or 730 days of presence required by s.16(2)(b)(i) of the Australian Citizenship Act 2007 (Cth) (the Act) (T2/31).

4. The evidence before the Tribunal indicates that the Applicant’s father was born in Spain and is a citizen of the United Kingdom. He was not an Australian citizen at the time of the Applicant’s birth.

5. The Applicant, through his mother, made an application for review of the citizenship refusal decision to the Tribunal on 12 August 2023, and the matter was heard on 5 September 2024. The hearing was conducted via video conferencing facilities with the Applicant’s mother in the United Kingdom. Ms Claudia Crawley appeared on behalf of the Minister.

6. At hearing, Ms Hemsley stated that she had sought review of the decision of the Minister on principle. She advised that she came from a long line of Australian citizens dating back to the 19^th century and that her family members included many eminent Australians including Australians that had actively served in the Australian military. Indeed, one relative had fought and lost his life in the Gallipoli campaign in World War 1.

7. Ms Hemsley advised that she is married to a military officer, as was her mother, and that her husband had fought in campaigns and exercises alongside Australians and on behalf of the Crown for many years.

8. Ms Hemsley acknowledged falling short of the requisite 730 days or two years of residence prior to the lodgement of her son’s application for citizenship. Ms Hemsley advised that, given her extensive Australian heritage and her families not insignificant military and other contributions to Australia, she was hopeful that there may be some discretion vested in the Minister to overcome the legal limitations imposed by s.16 of the Citizenship Act.

9. Ms Crawley noted in response that the Applicant’s application for citizenship was lodged on his behalf by his mother on 19 February 2023. Ms Crawley made reference to s.16(2) of the Citizenship Act which requires that if a person was born outside Australia after 26 January 1949, there were certain preconditions to the grant of citizenship that needed to be met. In this case, that was that the persons parent (an Australian citizen) has been present in Australia for a total period of at least two years at any time before the person made the application. Ms Crawley noted that, in Ms Hemsley’s case, she would have needed to have a presence of at least two years or 730 days in Australia at any time before the lodgement of the application on 19 February 2023 and that this was not the case.

10. Ms Crawley noted that, despite Ms Hemsley’s hope that some discretion may lie with the Minister, no such discretion existed in the circumstances of this case and that the only lawful decision which could be made by the Tribunal is for the decision under review be affirmed.

11. Ms Crawley further noted that there was nothing to preclude Ms Hemsley from making a future application for citizenship for her son. The Tribunal suggested that before doing so, Ms Hemsley avail herself of some legal advice with respect to such an application.

    PHILIPPA HEMSLEY’S PRESENCE IN AUSTRALIA

12. The evidence before the Tribunal indicates that Ms Hemsley was born in Germany in September 1984 and that she acquired Australian citizenship by descent on 29 July 1985. Her father is English, and her mother is Australian. Hence, Ms Hemsley acquired her Australian citizenship through her mother.

13. The legislative provisions relevant to this review at s.16(2) of the Act require the following. That a person born outside Australia on or after 26 January 1949 is eligible to become an Australian citizen if they meet the following requirements.

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

    (b) if the parent was an Australian citizen under this Subdivision or Subdivision AA, or section 10B, 10C or 11 of the old Act (about citizenship by descent), at the time of birth:

    (i) the parent has been present in Australia (except as an unlawful non-citizen) for a total period of at least two years at any time before the person made the application.

14. The Tribunal has considered the evidence before it with respect to Ms Hemsley’s presence in Australia for a total period of two years or 730 days at any time before the application for citizenship was made on 19 February 2023.

15. The evidence before the Tribunal indicates that the Applicant’s mother, Ms Hemsley is the holder of a United Kingdom passport issued to her on 15 June 2022. The evidence before the Tribunal indicates that the Applicant’s mother was the holder of an Australian passport that was issued to her on 1 May 2014.

16. The evidence before the Tribunal indicates that from the time of her birth in September 1984, and up to the point of time she had lodged an application for citizenship on behalf of her son on 19 February 2023, that she had spent less than the requisite two years or 730 days of presence in Australia.

17. Departmental records indicate that the Applicant’s mother had only 206 days of presence in Australia prior to the Applicant submitting his citizenship application. The Applicant’s mother has contended that this figure is incorrect and that she has spent 694 days in Australia prior to the applicant submitting her son’s citizenship application.

18. As noted in the Respondent’s submission, even if the Tribunal were to accept the Applicant’s mother’s account of her presence in Australia of 694 days, this still fell short of the requisite two years or 730 days required by s.16(2)(b)(i) of the Act.

    FINDINGS

19. There is no discretion available to the Minister with respect to an Applicant not meeting the requirements of section 16(2) of the Act. If these prescriptive legislative requirements are not able to be met, the citizenship application cannot be approved.

20. That is the case in this instance. The review is therefore not successful.

    DECISION

21. The decision under review is affirmed.

I certify that the preceding 21 (twenty-one) paragraphs are a true copy of the reasons for the decision herein of John Cipolla Senior Member

.. ....................[SGD].......................................

Associate

Dated: 9 September 2024

Date(s) of hearing:	5 September 2024
Advocate for the Applicant:	Ms P Hemsley on behalf of her son, Master C Hampson
Solicitors for the Respondent:	Ms Claudia Crawley, HWL Ebsworth Lawyers