Harton and Minister for Immigration, Citizenship and Multicultural Affairs (Citizenship)

[2023] AATA 2897

Harton and Minister for Immigration, Citizenship and Multicultural Affairs (Citizenship) [2023] AATA 2897 (11 September 2023)

Division:GENERAL DIVISION

File Number(s):      2022/2286

Re:Terence Frank Harton

APPLICANT

AndMinister for Immigration, Citizenship and Multicultural Affairs

RESPONDENT

DECISION

Tribunal:Senior Member George

Date:11 September 2023

Place:Adelaide

The Tribunal affirms the decision under review to refuse the Applicant to become an Australian citizen by descent.

...............[Sgnd].............................

Senior Member George

CATCHWORDS

CITIZENSHIP – applicant’s application for citizenship by descent refused – whether the applicant’s father was an Australian citizen at the time of the applicant’s birth in accordance with subsection 16(2)(a) of the Australian Citizenship Act 2007 – decision under review affirmed.

LEGISLATION

Administrative Appeals Tribunal Act 1975 (Cth)

Australian Citizenship Act 2007 (Cth)

Australian Citizenship Act 1948 (Cth)

Nationality and Citizenship Act 1948 (Cth)

CASES

Catena v Australian Securities and Investment Commission (2011) 276 ALR 25

Ladybird Children’s Wear Pty Ltd and Department of Business and Consumer Affairs (1976) 1 ALD 1

Re Martin and Commonwealth of Australia (1983) 5 ALD 277

Seltsam Pty Ltd v McGuiness (2000) 49 NSWLR 262

REASONS FOR DECISION

Senior Member George

11 September 2023

1. This is an application for review of a decision made by a delegate of the Minister for Immigration, Citizenship and Multicultural Affairs, to refuse Mr Terence Frank Harton’s (“the Applicant”) application for conferral of an Australian citizenship under the Australian Citizenship Act 2007 (Cth) (“the Act”).

2. On 29 June 2021, the Applicant applied to be conferred with an Australian citizenship by descent under Division 2 of Part 2 of the Act.[1] On 23 February 2022, a delegate of the Minister refused the application for an Australian Citizenship by descent because the Applicant did not satisfy the descent requirement under s 16(2)(a) of the Act.[2] This is the reviewable decision.

   [1] Exhibit R1, T-Documents, T4, Application for Australian Citizenship by Descent, pages 13-33.

   [2] Exhibit R1, T-Documents, T11, Notification of Refusal, pages 62-68.

3. Section 16(2)(a) of the Act provides that a person born outside of Australia on or after 26 January 1949 is eligible to become an Australian citizen by descent if, at the time of application, the Minister is satisfied that a parent of the person was an Australian citizen at the time of the birth.

4. The central issue in this matter is whether the evidence before the Tribunal proves that the Applicant’s father was an Australian citizen at the time of the Applicant’s birth in January 1958 and accordingly, if s 16(2)(a) of the Act is met.

5. This matter was heard on 26 July 2023 and 6 September 2023 through audio-visual means. The Applicant was self-represented, and the Respondent was represented by Mr Alex Chan of Sparke Helmore. The Applicant gave evidence. The Applicant’s father was available to give evidence on 26 July 2023 but was not required for cross-examination on 6 September 2023.

6. The Tribunal received the written evidence that is listed in the Exhibit Register marked “Annexure A”.

7. For the following reasons, the Tribunal has decided to affirm the decision under review.

   CONSIDERATION OF CLAIMS AND EVIDENCE

8. The Respondent’s Statement of Facts, Issues and Contentions set out the background facts of this matter in chronological form.[3] Having regard to that chronology, and the documents upon which it relies, the Tribunal is satisfied of the following facts:

   (a)The Applicant was born in the United Kingdom in January 1958 and his father was listed as ‘Roy Frank Hartton’ on his birth certificate;[4]

   (b)The Applicant’s father was born in Australia in May 1933 with the name ‘Roy Frank Horton’,[5] where it is uncontroversial that ‘Roy Frank Hartton’ and ‘Roy Frank Horton’ are the same person being the Applicant’s father;

   (c)The Applicant arrived in Australia with his parents and siblings in 1965;[6]

   (d)Department records show the Applicant departing Australia in 2001 as the holder of a Resident Return (Class BB Subclass 155) visa;[7]

   (e)On 29 June 2021, the Applicant applied to be conferred with Australian citizenship by descent under Division 2 of Part 2 of the Act;[8]

   (f)Until at least March 2023, the Applicant has been a holder of a British passport;[9]

   (g)On 23 February 2022, a delegate of the Minister refused the Applicant’s application for citizenship.[10]

   (h)On 17 March 2022, the Applicant applied to the Tribunal for review of the reviewable decision.[11]

   [3] Exhibit J1, Amended Tribunal Book, Respondent’s Statement of Facts issues and Contentions, pages 12-14.

   [4] Exhibit R1, T-Documents, T4, page 34.

   [5] Exhibit R1, T-Documents, T2, page 10.

   [6] Exhibit R1, T-Documents, T2, page 8; Exhibit J1, Inwards Passenger Manifest – Disembarking, page 23.

   [7] Exhibit R1, T-Documents, T12, page 71.

   [8] Exhibit R1, T-Documents, T4, pages 13-33.

   [9] Exhibit R1, T-Documents, T4, page 35.

   [10] Exhibit R1, T-Documents, T11, pages 62-68.

   [11] Exhibit R1, T-Documents, T2, pages 4-9.

   A parent of a person who was an Australian citizen: s 16(2)(a) of the Act

9. For the Applicant to be conferred with an Australian citizenship by descent, under s 16(2)(a) of the Act he must have had a parent who was an Australian citizen at the time of his birth.

10. The Respondent submitted that the Applicant does not satisfy s 16(2)(a) of the Act for the following reasons:

    (a)In the Applicant’s father’s incoming passenger card in 1965, his father declared his nationality as “British England”;

    (b)The Applicant has not approached the British authorities to confirm his father’s citizenship status; and

    (c)The Applicant’s father resided in the United Kingdom between 1939 and 1965, a period exceeding seven years.[12]

    [12] Exhibit R2, Respondent’s Statement of Facts, Issues and Contentions, pages 7-8.

11. In refusing the application for an Australian citizenship by descent, the delegate noted the following:

    An Australian birth certificate is a key identity document used to establish the Australian citizenship status of a descent applicant’s parent.

    Without your father’s Australian birth certificate, the Department cannot determine that your grandparents were nor in Australia for a special purpose for example, as foreign diplomats when the your father was born in Australia. This makes it difficult for us to confirm the parent’s Australian citizenship status.

    Further to this the Department is required to assess if there was a loss of Australian citizenship under Section 17 of the 1948 Act provided that where an adult who was in Australia and acquired the citizenship of another country automatically ceased to be an Australian citizen.

    … Due to the significant period of time your father has been in the United Kingdom the Department requires evidence of your father’s Immigration status in the United Kingdom as a required identity document used to establish the Australian citizenship status of your parent. Since evidence of the immigration status of your father in the United Kingdom was not provided, a loss of citizenship determination could not be made.[13]

    [13] Exhibit R1, T-Documents, T11, Notification of Refusal, page 67.

12. In his application for review by the Tribunal, the Applicant submitted that he had an Australian citizen parent at the time of his birth. He said the following when asked why he claimed the decision was wrong:

    Because of my father’s birth certificate was difficult to obtain from Victoria Birth, death and Marriage as proof of my father being Australian birth, which now they’re sending it to me and I will forward it through. Also, I Terence Harton was born in England my father had never become a British Citizen. My father immigrated back to Australia with his family which include me in 1965 on a fair star ship, the government must have some record of this, I believed the children aren’t recorded.[14]

    [14] Exhibit R1, T-Documents, T2, Application for Review of Decision, page 8.

13. The Applicant’s father’s birth certificate is before the Tribunal.[15] The birth certificate confirmed that his father was born in Australia in 1933. The Applicant’s father has a mental incapacity,[16] but was nevertheless able to provide a statutory declaration dated 26 July 2022.[17] In his evidence, the Applicant’s father stated that he changed his name by deed poll at one stage and, to the best of his knowledge, he was never a British citizen.

    [15] Exhibit R1, T-Documents, T2, Application for Review of Decision, page 10.

    [16] Exhibit R1, T-Documents, T4, page 41.

    [17] Exhibit J1, A1, pages 3-5.

14. The Australian Citizenship Act 1948 (Cth) (“the Old Act”) regulated the conferral of Australian Citizenship from the period of 26 June 1949 to 20 June 2007. The Old Act was originally called the Nationality and Citizenship Act 1948 (Cth). Section 11(1)(a) of the Old Act provided that a person born outside Australia on or after 26 January 1949, is an Australian citizen by descent if (in the case of a person born in wedlock, as applies here) at the time of birth his father or mother was an Australian citizen. The Applicant’s oral evidence is that his mother was not an Australian citizen.

15. The Applicant’s father was born in 1933 before the commencement of the Old Act in 1948. The Applicant’s father therefore does not have the benefit of the general provisions of s 10(1) of the Old Act that provided that a person born in Australia after the commencement of the Old Act shall be an Australian citizen by birth.

16. Between 27 January 1949 and 8 October 1958 (being the commencement date of the Nationality and Citizenship Act 1958 (Cth)), s 20 of the Old Act provided that Australian citizens would lose their citizenship if they resided outside of Australia for a period of seven years other than in limited circumstances. Given that s 20 of the Old Act only applied to Australian citizens who were citizens by registration or as a naturalised person, it is almost certain that this provision did not apply to the Applicant’s father.

17. Section 17 of the Old Act provided that if a person aged 18 years or over ceased to be an Australian citizen if they were outside of Australia, and by some voluntary or formal act other than marriage, acquired the citizenship of another country.

18. At the hearing on 26 July 2023, the Applicant informed the Tribunal of evidence that had not previously been provided to both the Tribunal and the Respondent. The Respondent sought, and the Tribunal granted, a six-week adjournment for the Respondent to properly consider this evidence.

19. The evidence comprised an email from the National Archives of the United Kingdom to the Applicant dated 22 October 2022. Part of that email reads as follows:

    Thank you for contacting The National Archives of the United Kingdom.

    We have searched for the name Roy Frank Horton in our records of British citizenship, and we conclude that we have no record of a person of this name becoming British by naturalisation.

    … Following this email, you will receive a second email with details of how you can order a letter from us confirming that The National Archives holds no evidence of naturalisation of the above named individual. The letter, should you choose to order it, would be sent on headed paper and can be used for legal purposes.

20. On 29 August 2023, the Respondent advised the Tribunal that their position remains unchanged. They said that the Minister, at present, does not accept on the basis of the National Archives email, that the Applicant’s father was never naturalised as a British subject. This is because the National Archives only did a search for “Roy Frank Horton”, rather than all the alternative spellings of the Applicant’s father’s name.[18]

    [18] Exhibit R3.

21. In the Applicant’s fathers birth certificate, his name is listed as “Roy Frank Horton.” In the incoming passenger card dated in 1965, his father’s name is listed as “Frank Hartton.” In a statutory declaration dated 26 July 2022, his father’s name is listed as “Frank Horton.” The Applicant acknowledges that his father used at least two different names at different times, being “Roy Frank Horton” and “Roy Frank Harrtton”.[19]

    [19] Exhibit A2.

22. During proceedings, submissions were sought and made regarding the requirements for the consideration of evidence put forward by the Applicant in support of his application. This is in the context of what material the Applicant should put before the Tribunal this is obtainable by him, but not the Respondent, such as evidence of any naturalisation of the Applicant’s father as a British subject. Accordingly, it is useful to briefly state the relevant law.

23. There is no provision in the Act or the Administrative Appeals Tribunal Act 1975 (Cth) (‘the AAT Act’) that places a formal onus of proof on the Applicant to establish facts. As Deputy President Hall observed in Re Martin and Commonwealth of Australia (1983) 5 ALD 277, at 41:

    The rules as to onus of proof which have been judicially developed as a means of resolving the issues that arise in adversarial litigation are part of the rules of evidence [see Phipson on Evidence, 12th ed Chapter 4; cf Ladic v Capital Territory Health Commission (1982) 5 ALN No 45]. This Tribunal is expressly not bound by such rules [see s 33(1)(c) of the Administrative Appeals Tribunal Act 1975]. Whilst the Tribunal may be guided by the rules of evidence, a rigid adherence to judicial rules as to onus is incompatible, in my view, with the principles of administrative review by reference to which the Tribunal is required to exercise its functions (cf Drake v Minister for Immigration and Ethnic Affairs, supra)

24. Consistent with this longstanding precedent, the Full Court found in Catena v Australian Securities and Investment Commission (2011) 276 ALR 25, at [33] (North, McKerracher and Jagot JJ):

    By s 33(1)(c) of the AAT Act, the tribunal is “not bound by the rules of evidence but may inform itself on any matter in such manner as it thinks appropriate”. By s 43(1) of the AAT Act the tribunal, for the purpose of reviewing a decision, “may exercise all the powers and discretions that are conferred by any relevant enactment on the person who made the decision”. These provisions, which place the tribunal in the same position as the administrative decision-maker at first instance, exclude the “introduction of concepts of onus of proof into the determination of claims under the legislation where no onus of proof in the legal sense arises”: McDonald v Director-General of Social Security (1984) 1 FCR 354 at 366; (1984) 6 ALD 6 at 19; see also at FCR 356–8; at ALD 10–11.

25. Similarly, it has been long established that there is no onus on the Respondent to prove that its decision is correct. An early statement of these principles was contained in Re Ladybird Children’s Wear Pty Ltd and Department of Business and Consumer Affairs (1976) 1 ALD 1, at 5 (Brennan J (President), V J Skermer and R L Stock (Members)), where the Tribunal held:

    There is no onus upon an applicant to prove that the Collector's decision is erroneous; nor is there an onus upon the Collector to prove that his decision is right. Of course, the language of the tariff or the state of the known facts may give rise to some onus of proof resting on one party or another in a particular case, but such an onus does not arise from the making of a decision which is brought up to the Tribunal for review.

26. As to the standard of proof, and the formation of a state of reasonable satisfaction, the relevant facts are to be established on the balance of probabilities noting that, “as is the case with all circumstantial evidence, an inference as to the probabilities may be drawn from a number of pieces of evidence, each piece of which does not itself rise above the level of possibility.”[20]

    [20] Seltsam Pty Ltd v McGuiness (2000) 49 NSWLR 262, at 278 (Spigelman CJ).

27. The Tribunal has considered whether the substance of the evidence before the Tribunal proves that the Applicant’s father was an Australian citizen at the time of the Applicant’s birth in January 1958 and accordingly, if s 16(2)(a) of the Act is met.

28. The Tribunal is not satisfied that any singular piece of evidence rises above the level of a mere possibility that Applicant’s father was an Australian citizen at the time of the Applicant’s birth in January 1958. Furthermore, the number of pieces of evidence before the Tribunal combined do not satisfy that the Applicant’s father was an Australian citizen at the time of the Applicant’s birth.

29. On this basis, it would be incorrect for the Tribunal to set-aside the decision under review and to substitute a decision not to refuse the Applicant’s application for conferral of an Australian citizenship under the Act.

30. The Tribunal has considered whether the correct and preferable decision would be to remit the matter to the Respondent for reconsideration. The Tribunal considered doing so and making a direction that the Respondent consider any further evidence that may be obtainable by the Applicant from the National Archives of the United Kingdom, regarding the Applicant’s father’s use of alternative names and any naturalisation as a British subject. However, this course of action would not address the central issue of proving that the Applicant’s father was an Australian citizen at the time of the Applicant’s birth in January 1958.

31. Finally, the Tribunal notes that it remains open to the Applicant to re-apply for citizenship by descent or alternatively by conferral if the decision under review is affirmed. Indeed, this course of action would be both correct and preferable.

    CONCLUSION

32. Based on the findings above, the Tribunal is not satisfied that the Applicant meets the descent requirements under s 16(2)(a) of the Act. Accordingly, the Tribunal affirms the decision under review to refuse the Applicant to become an Australian citizen by descent.

    DECISION

    The Tribunal affirms the decision under review to refuse the Applicant to become an Australian citizen by descent.

I certify that the preceding thirty-two (32) paragraphs are a true copy of the reasons for the decision herein of Senior Member George

.............................[sgnd]..................................

Associate

Date of Decision:	11 September 2023
Dates of Hearing:	26 July 2023 6 September 2023
Representation for the Applicant:	Self-represented
Solicitor for the Respondent:	Mr A Chan Sparke Helmore Lawyers

ANNEXURE A – EXHIBIT REGISTER

33.     EXHIBIT	DESCRIPTION OF EVIDENCE	PARTY	DATE OF DOCUMENT	DATE RECEIVED	DATE TENDERED
R1	T-Documents	R	Various	20/4/2022	26/7/2023
J1	Amended Tribunal Book	R	Various	16/6/2023
A1	Email from National Archives of the UK to the Applicant	A	Various	26/7/2023
A2	Email from Applicant and attachments	A	6/92023	6/9/2023	6/9/2023
R2	Email from Respondent	R	29/8/2023	29/8/2023