JMWX and CVDK and Minister for Immigration, Citizenship and Multicultural Affairs (Citizenship) - [2023] AATA 526

JMWX and CVDK and Minister for Immigration, Citizenship and Multicultural Affairs (Citizenship) [2023] AATA 526 (28 March 2023)
ReviewNumber: 2021/1681, 2021/1682

Division:GENERAL DIVISION
File Number(s): 2021/1681 and 2021/1682
Re:JMWX and CVDK
APPLICANT

AndMinister for Immigration, Citizenship and Multicultural Affairs
RESPONDENT
DECISION

Tribunal:Deputy President Boyle
Date:28 March 2023
Place:Perth

The decisions of the delegate of the Minister made on 10 March 2021 under s 24 of the Australian Citizenship Act 2007 (Cth) to refuse the Applicants’ applications for the grant of Australian citizenship are affirmed.
.......................[Sgd].................................................
Deputy President Boyle
CATCHWORDS
CITIZENSHIP – refusal of applications for Australian citizenship - statelessness – “entitled to acquire citizenship of a foreign country” – Australian Citizenship Act 2007 s 21(8)(d) – requirements of Sri Lanka for grant of citizenship - procedures do not constitute barriers that make it impossible, in any practical sense, for the Applicants to acquire Sri Lankan citizenship – AP and KKRG applied - not satisfied that the Applicants are not “entitled to acquire” the citizenship of Sri Lanka – decisions affirmed
LEGISLATION
Australian Citizenship Act 2007 (Cth) ss 21(1), 21(8), 21(8)(a), 21(8)(b), 21(8)(c), 21(8)(d), 24, 24(1), 24(1A), 52(1)(b), 21(8)(b), 21(8)(c), 21(8)(d), 33(3)(b)
Citizenship Act 1948 (Sri Lanka) – ss 3(2), 4, 5, 5(2)
Migration Act 1985 (Cth) – ss 36(2)(aa), 36(2B)(a)
CASES
AP and Minister for Immigration and Border Protection [2014] AATA 706
CAR15 v Minister for Immigration and Border Protection (2019) 272 FCR 131
DLSV and Minister for Immigration and Border Protection [2017] AATA 2999
JGGN and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] AATA 2405
KKRG and Minister for Immigration and Border Protection [2015] AATA 635
Koroitamana v Commonwealth (2006) 227 CLR 31
Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; 194 CLR 355
Re Canavan (2017) 263 CLR 284
Yao v Minister for Immigration and Border Protection 140 ALD 21
SECONDARY MATERIALS
Convention Relating to the Status of Stateless Persons, opened for signature on 31 December 1955, 360 UNTS 117 (entered into force 6 June 1960) Arts 1, 32
Convention on the Rights of the Child, opened for signature on 20 November 1989, 1577 UNTS 3 (entered into force 2 September 1990) Art 7
Explanatory Memorandum, Australian Citizenship Bill 2005 (Cth)
REASONS FOR DECISION
Deputy President Boyle
28 March 2023
THE APPLICATION

The Applicant’s seek review of decisions of a delegate of the Respondent (Minister) made on 10 March 2021 under s 24 of the Australian Citizenship Act 2007 (Cth) (the Citizenship Act) to refuse their applications for the grant of Australian citizenship. The Applicants are sisters. Their material particulars and the particulars of their respective applications for Australian citizenship and the delegate’s decisions in relation to each application are materially the same. The applications were programmed and heard together and, as the material particulars were common to both applications, the parties’ submissions were common to both applications. Unless stated otherwise, I will deal with the applications, the evidence and the submissions on the same basis.
The applications are made under s 52(1)(b) of the Citizenship Act. I am satisfied that the applications were made in accordance with the Citizenship Act and the Administrative Appeals Tribunal Act 1975 (Cth) (AAT Act) and that I have jurisdiction to determine the applications.
THE HEARING AND THE EVIDENCE
The applications were heard on 2 and 3 June 2022. The Applicants were represented by Mr A Aleksov and Ms C Ford and the Minister was represented by Mr S Lloyd SC and Ms L Coleman. The following witnesses gave evidence at the hearing:
(a)Dr Asanga Sanjeev Welikala (Dr Welikala);
(b)Luwie Niranjan Ganeshathasan (Mr Ganeshathasan); and
(c)Upul Nissanka (Mr Nissanka).
The following documents were admitted into evidence:
(a)Report of Dr Welikala (with Mr Ganeshathasan) dated 11 August 2021 (A1);
(b)Report of Dr Welikala (with Mr Ganeshathasan) dated 11 February 2022 (A2);
(c)Statutory declaration of the Applicants’ father dated 11 March 2022 (A3);
(d)Statutory declaration of the Applicants’ mother dated 11 March 2022 (A4);
(e)Sri Lankan Citizenship Regulations 1951 (R1);
(f)Extract from the Sri Lankan Government Gazette dated 25 May 2022 (R2);
(g)Report of Upul Nissanka; undated with declaration of overriding duty to provide impartial assistance to the Tribunal signed on 3 November 2021 (R3);
(h)Extract from the Sri Lankan Government Gazette dated May 1997 (R4); and
(i)Documents lodged by the Minister pursuant to s 37 of the AAT Act – T Documents (R5)
BACKGROUND
The following background facts are largely taken from the Minister’s statement of facts, issues and contentions dated 8 April 2022 (Minister’s SFIC) and are not in dispute.
The Applicants’ parents are Sri Lankan citizens who separately arrived in Australia as unauthorised maritime arrivals, one in 2012 and the other in 2013.
CVDK was born in Queensland in 2015 and JMWX was born in Queensland in 2017.
On or about 5 September 2019, applications for the grant of Australian citizenship for each of the Applicants were lodged with the Department of Home Affairs in accordance with s 21(1) of the Citizenship Act. The applications for Australian citizenship were supported by submissions and documents with further submissions being lodged with the Department on or about 16 September 2019.
Each of the applications for the grant of Australian citizenship was based on a claim of eligibility to become an Australian citizen under s 21(8) of the Citizenship Act, that is, on the basis that the Applicants were stateless.
Section 21(8) of the Citizenship Act provides that:
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.
The submissions made in support of the applications for Australian citizenship asserted that the Applicants’ births had not been registered with Sri Lankan authorities and asserted that, as a result, the Applicants were not eligible for Sri Lankan citizenship.
By letter dated 24 September 2019, the Department invited the Applicants to comment on what the Department considered to be adverse information that might lead to a decision to refuse their applications for Australian citizenship. The Department referred in its correspondence of that date[1] to s 5(2) of the Sri Lankan Citizenship Act 1948 (SL Act). That section provides that:
Subject to the other provisions of this Part, a person born outside Sri Lanka on or after the appointed date [15 November 1948, per s 28] shall have the status of a citizen of Sri Lanka if at the time of his birth either of his parent is or was a citizen of Sri Lanka and if, within one year from the date of birth, or within such further period as the Minister may for good cause allow, the birth is registered in the prescribed manner:
(a) at the office of a consular officer of Sri Lanka in the country of birth; or
(b) at the office of the Minister in Sri Lanka.
[1] R5, T5.
The Department’s letter dated 24 September 2019 also stated that:
(a)Australian Border Force (ABF) had been advised by the Sri Lankan High Commission in Canberra that children born in Australia to Sri Lankan parents must be registered to be issued with Sri Lankan travel documents.
(b)In November 2017 ABF lodged with the Sri Lankan High Commission a “Form B, Declaration of Birth after Three Months (section 24)” in respect of the Applicants seeking registration of their births.
(c)As a result, Sri Lankan travel documents for the Applicants had been issued and asserted that that “might be regarded as strong evidence that [the Applicants] have been registered as Sri Lankan citizens by Sri Lankan authorities.”
(d)Sri Lankan government websites suggest that late registration of children born outside Sri Lanka was readily available on payment of a fee.
On 1 October 2019, the Department provided the Applicants with copies of the declarations referred to in [13(b)] above and copies of the Sri Lankan travel documents in the Applicants’ names. The travel documents identified the “national status” of each Applicant as “Sri Lankan”.[2]
[2] R5, T7.
By letters dated 11 October 2019 from Carina Ford Immigration Lawyers[3], the Applicants responded to the Department’s invitation to comment dated 24 September 2019. The letters stated that the applications made by ABF referred to in [13(b)] above were not valid and disputed that there was sufficient evidence to establish that the Applicants had been registered as Sri Lankan citizens. The letters also attached a legal opinion of KVS Ganesharajan dated 8 October 2019 on the operation of Sri Lankan citizenship law.[4]
[3] R5, T8.
[4] R5, T8.
By letters dated 30 March 2020,[5] the Department invited the Applicant’s to comment on further adverse information which was that the Sri Lankan High Commission had confirmed that:
(a)the births of children born to failed Sri Lankan asylum seekers in Australia can be registered in Sri Lanka upon their return to Sri Lanka and that these children are also entitled to be registered as citizens of Sri Lanka;
(b)Sri Lankan parents can obtain birth certificates for their children and citizenship certificates from relevant Sri Lankan government agencies;
(c)the parents (on the children’s behalf) could obtain a Sri Lankan birth certificate as well as a Sri Lankan citizenship certificate, in addition to the existing Australian birth certificate.
[5] R5, T10.
On 1 April 2020, the Department sent the Applicants’ lawyers copies of correspondence between the Department and the Sri Lankan High Commission which contained the information set out in [16] above.[6]
[6] R5, T11.
By letters dated 27 April 2020,[7] the Applicants’ lawyers responded to the Department advising, amongst other things, that the Applicants’ parents did not have the documents necessary to make the applications for registration of birth and certificates of citizenship and why various other requirements of such applications could not be met. The letters enclosed a further legal opinion from KVS Ganesharajan dated 27 April 2020.
[7] R5, T12.
On 10 March 2021, a delegate of the Minister refused the Applicants’ applications for Australian citizenship on the basis that the delegate was not satisfied of the requirement in s 21(8)(d) of the Act. The delegate was satisfied that the Applicants were not currently citizens or nationals of Sri Lanka and accepted that the Applicants’ births had not been registered in accordance with s 5(2) of the SL Act.[8]
[8] R5, T14.
THE LEGISLATIVE FRAMEWORK
Section 21 of the Citizenship Act relevantly provides:
(1) A person may make an application to the Minister to become an Australian citizen.
…
(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.
Section 24 of the Citizenship Act relevantly provides:
(1) If a person makes an application under section 21, the Minister must, by writing, approve or refuse to approve the person becoming an Australian citizen.
(1A) The Minister must not approve the person becoming an Australian citizen unless the person is eligible to become an Australian citizen under subsection 21(2), (3), (4), (5), (6), (7) or (8).
THE ISSUE FOR DETERMINATION
The parties agree that the issue for determination is whether the Applicants are not entitled to acquire the nationality or citizenship of a foreign country for the purposes of s 21(8)(d) of the Citizenship Act.[9] I agree that that is the issue for determination.
[9] Applicants’ submissions dated 11 March 2022 at [4]; Minister’s SFIC at [34].
The Applicants’ submissions dated 11 March 2022 (at [2] and [4]) also contend that it is common ground that the Applicants:
(a)were born in Australia (s 21(8)(a) of the Citizenship Act;
(b)are not nationals or citizens of any country (s 21(8)(b) of the Citizenship Act; and
(c)have never been a nationals or citizens of any country (s 21(8)(c) of the Citizenship Act.
While the above matters are not specifically agreed by the Minister, the facts as set out in the Minister’s SFIC support the Applicants’ contentions and I find that the facts contended by the Applicants as set out in [23] above are correct. It is only satisfaction of the condition in s 21(8)(d) that is in dispute.
THE PARTIES’ CASES
The Applicants
The Applicants’ submissions contended as follows:
The law
(a)The critical component of the expression in s 21(8) of the Citizenship Act is “entitled to acquire”. The Applicants’ research has not yielded any applicable judicial consideration of this expression.
(b)The leading authority in the Tribunal on the issue appears to be the decision of Senior Member Taylor SC in AP and Minister for Immigration and Border Protection.[10] The Applicants accept some aspects of the reasoning in that case but not other aspects.
[10] [2014] AATA 706.
(c)The Applicants cite [51] of AP and contend that, to the extent that that paragraph indicates that “eligibility” for foreign citizenship is a necessary condition for the question under s 21(8)(d), that should be accepted and that eligibility for foreign citizenship, whilst a necessary condition, is not sufficient to deny the negative proposition in s 21(8).
(d)Senior Member Taylor SC’s reference to an “accrued right” to foreign citizenship in his analysis of the meaning of the words “entitled to acquire” in s 21(8)(d) of the Citizenship Act is unhelpful. It is not clear in the Senior Member’s analysis what he means by “accrued right” and, in any event, it departs from the statutory language.[11]
[11] Applicants’ submissions at [11-3].
(e)The word “acquire” in s 21(8)(d) implies that a person might need to take some step before obtaining foreign citizenship. If the word “acquire” did not carry this implication, it would not need to be included in s 21(8)(d) – the provision could read, for example, “the person is not entitled to the citizenship of a foreign country.”[12]
[12] Applicants’ submissions at [15].
(f)The provision is directed to whether the steps presently available to a person to obtain foreign citizenship are such as to warrant the description an “entitlement to acquire” foreign citizenship.
(g)The better analysis is that the notion of “entitled to acquire”, in its ordinary grammatical form, read in its context, embraces situations where a person might need to take some step to acquire foreign citizenship.
(h)The question is not whether any such step is required, but rather, the question is one of degree; what sort of steps need to be taken, and what prospects of success are if those steps are taken. In each case this will be a matter of fact and degree addressed by evidence of the foreign law and administrative practices. This was the approach taken by the Tribunal in KKRG and Minister for Immigration and Border Protection.[13]
[13] [2015] AATA 635.
(i)The test is thus best understood as whether there is eligibility for foreign citizenship and a practical capacity to obtain foreign citizenship, with sufficient ease and with sufficiently high prospects, to justify a description of that situation as an “entitlement” to acquire that foreign citizenship.
(j)Questions of foreign citizenship are determined according to foreign law.[14] While in some cases this may be straight-forward, the situation may be complicated if the foreign law provides for an administrative discretion to refuse to grant foreign citizenship. The notion of an entitlement under s 21(8) sits in some tension with the existence of such a discretion. An entitlement, in its natural sense, is something which is not to be denied for any reason. However, the mere existence of such a discretion to refuse foreign citizenship would not, of itself, deny the relevant entitlement. It is appropriate to consider evidence relating to how such a discretion is exercised in practice, “with a view to showing that the grant of foreign citizenship is not sufficiently likely (which needs near certainty) to warrant being called an entitlement.”[15]
[14] Citing Re Canavan (2017) 263 CLR 284 at [37].
[15] Applicants’ submissions at [26].
(k)If there is uncertain evidence about the circumstances of the exercise of that discretion or evidence that the discretion might realistically be exercised against a person, then subject to the person having made reasonable efforts to present the best available evidence to the Tribunal, there is not an entitlement to foreign citizenship (even though there might be an eligibility for foreign citizenship).
(l)Independently of the issue of discretion relating to the grant of foreign citizenship, there will be cases where there is argument about whether the steps that need to be taken under the foreign law are so onerous, or the prospects of success are insufficiently high, that describing the situation as one where the person is “entitled to acquire” foreign citizenship is not justified.
(m)The above issue is determined by reference to the text of s 21(8)(d) of the Citizenship Act. One must always return to the word “entitled”. This suggests that the steps involved cannot be onerous at all and really must be in the realm of reasonable steps to validate identity and entitlement to foreign citizenship. If there are oddities like requiring official stamps that are tricky to obtain, or there is a risk of being subject to corruption (e.g. payments of bribes required), that is inconsistent with an entitlement to acquire foreign citizenship.
(n)It is also inconsistent with an entitlement to acquire foreign citizenship if the prospects of success upon taking such steps are not, at the least, “very high”.
(o)The provision applies to a person who is born in Australia, and who is not and has never been a foreign national or citizen. The usual applicant, under s 21(8)(d) will be a child present in Australia since their birth who is stateless. Such a person would fall within the definition of “stateless” under Art 1 of the Convention Relating to the Status of Stateless Persons, and s 21(8) of the Citizenship Act appears, in part, to be directed to implementing Australia’s obligation under Art 32 of that Convention. Such a person would also fall within Art 7 of the Convention on the Rights of the Child. This suggests that s 21(8) should not be given an interpretation that makes it difficult for children who are stateless to acquire Australian citizenship, even if there is another country where they have eligibility for citizenship.
(p)Much of the work of s 21(8)(d) of the Citizenship Act is as an “anti-manipulation” provision. That is apparent when one considers ss 21(8)(c) and (d) together. Section 21(8)(c) is a provision aimed at preventing manipulation by a person of their foreign citizenship status to take up Australian citizenship. The substance of s 21(8)(d) is complementary to s 21(8)(c), extending the anti-manipulation effect to situations where foreign citizenship is available but not taken up.
(q)A particular consideration relevant to s 21(8)(d) of the Citizenship Act is where a person, or their parents or guardians, have been denied some aspect of the foreign citizenship, including the protection of that country. So, if steps need to be taken to acquire foreign citizenship in circumstances where that foreign country has persecuted a parent or family member, one would need to assess whether expecting a person to take such steps is beneath their dignity, or their safety. If that is the case, the person does not have an “entitlement” to anything if they have to do something which they feel is abhorrent to acquire it.
(r)It remains the case that the “line” between an entitlement, and not, is a question of fact in each case to be resolved on the evidence, but the following principles are informative:
(i)There must be legal eligibility to acquire foreign citizenship, in the sense of a capacity to acquire it.
(ii)The practical steps required to take up foreign citizenship must be within the capacity of the person to achieve and must not be any more onerous than is reasonably necessary to serve some legitimate interest of the foreign country; otherwise, such requirements will be inconsistent with the notion of an “entitlement”.
(iii)The practical steps must not be so unattractive or unappealing to the person so as to practically preclude them from wanting to take such steps.
(iv)The prospects of being granted foreign citizenship must be very high, and nearly certain.
(s)Such an approach is consistent with the outcome in AP and the decisions of the Tribunals in JGGN and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs,[16] DLSV and Minister for Immigration and Border Protection[17] and KKRG.
The evidence
(t)The evidence of Dr Welikala should be preferred over that of Mr Nissanka. The Tribunal should accept Dr Welikala’s evidence that there is a very real possibility (more likely than not) that a child will not be registered as a citizen of Sri Lanka despite best efforts to obtain Sri Lankan citizenship. The prospects of success, even with their parents’ best efforts, are too low to justify describing that situation as an entitlement.
(u)The Applicants’ parents have given evidence that they would not take any step to have their children acquire Sri Lankan citizenship, in any circumstance. It does not matter whether the parents’ claims to fear for their safety, and their daughters’ safety, are well-founded. If the Tribunal accepts the parents’ evidence that they will not seek Sri Lankan citizenship for their daughters, whatever the validity of the reasons therefor, the Applicants dependence on their parents makes it unthinkable that they could acquire it. This was the approach taken in KKRG.
(v)If the parents will not take steps to procure Sri Lankan citizenship for the Applicants. The Applicants’ lack of agency means that they must be “taken as they are found”. This sort of analysis has been approved by the Federal Court in the context of relocation by children to avoid persecution: CAR15 v Minister for Immigration and Border Protection.[18] If a parent will not relocate their child to avoid persecution, one cannot impute any unreasonable conduct of the parent unto the child.
[16] [2021] AATA 2405.
[17] [2017] AATA 2999.
[18] (2019) 272 FCR 131.
The Minister

The Minister’s SFIC contended as follows:
(a)It is common ground that it is “legally possible” in accordance with the laws of Sri Lanka for the Applicants to acquire Sri Lankan citizenship.[19]
[19] A1 at [13] and [25].
(b)The Tribunal could not positively be satisfied that the Applicants are “not entitled” to acquire Sri Lankan citizenship.
(c)The Applicants’ eligibility for Australian citizenship turns entirely on s 21(8)(d) and, in particular, upon whether the Tribunal is positively satisfied that the Applicants are “not entitled to acquire the citizenship of” Sri Lanka.
(d)That provision has not been the subject of judicial consideration. The Tribunal in AP at [51] held that the concept of “entitlement” in this context “refers to a legal eligibility, [rather] than to satisfaction of the evidentiary or procedural steps necessary to have the right formally recognised or vindicated” and that the expression “entitled to acquire” implies a future event, as a result of a course of action that the person is “entitled” to take. Those views were subsequently endorsed in KKRG.[20]
[20] KKRG at [23] and [24].
(e)A person will generally be entitled to acquire the citizenship of a foreign country within the meaning of s 21(8)(d) where the application requirements of that foreign country are “generally … straightforward and largely procedural.”[21]
[21] Citing AP and KKRG.
(f)An applicant must do all that they reasonably can do to register their birth and to acquire citizenship of the relevant foreign country through the regular application process.[22]
[22] Citing DLSV at [50], [57].
(g)Where the application process entails steps that are so onerous as to negate the person’s underlying eligibility for citizenship of the foreign country, or where the person has “no prospect of satisfying the application requirements of the relevant foreign country”, there will be no “entitlement” in the requisite sense.[23]
[23] Citing AP, KKRG and JGGN.
(h)KKRG is an example of such a case in which the Tribunal found that there were “significant barriers” to the applicant’s acquisition of Cuban citizenship, which made it “impossible, in any practical sense, for the applicant to acquire” it and that the steps that the applicant would have to take “amount to an effective prohibition against [his] acquisition of Cuban citizenship. They were not merely procedural … the barriers placed in his path by the Cuban government effectively prevent him”[24] from acquiring Cuban citizenship.
[24] KKRG at [30] and [31].
(i)Section 21(8)(d) of the Citizenship Act must be construed in the context of the Citizenship Act as a whole. Section 33(3)(b) of the Citizenship Act identifies the existence of a particular circumstance (Australian citizenship) that renders a person ineligible to acquire the citizenship of a foreign country. Construed in its statutory context, the concept in s 21(8)(d) of being “not entitled to acquire” foreign citizenship similarly contemplates the existence of some feature or characteristic that would disentitle a person from acquiring the citizenship of a foreign country. Absent any disentitling feature of that kind, the Minister may not be satisfied that the person is “not entitled” to acquire foreign citizenship.
(j)The question of entitlement in this context turns upon the existence of a subjective state of mind in the decision-maker, being a state of satisfaction as to the matter identified in (relevantly) s 21(8)(d). It does not turn upon whether the person is, as a matter of objective fact, “not entitled” to acquire foreign citizenship.[25]
[25] Citing Yao v Minister for Immigration and Border Protection [2014] FCAFC 17; 140 ALD 21 at [49].
(k)Section 21(8) and its statutory predecessors were introduced to give effect to Australia’s obligations under the 1961 Convention on the Reduction of Statelessness.[26]
[26] Explanatory Memorandum, Australian Citizenship Bill 2005 (Cth) 25.
The requirements of the SL Act
(l)The Applicants’ acquisition of Sri Lankan citizenship is governed by s 5(2) of the SL Act. The Applicants’ have the status of citizens of Sri Lanka (“shall have the status”) if three conditions are satisfied:
(i)At the time of their birth either of their parents were citizens of Sri Lanka. It is not disputed that that condition is satisfied in the present case.
(ii)The Applicants’ births are registered “within one year from the date of birth, or within such further period as the Minister may for good cause allow.”[27]
[27] Citizenship Act 1948 (Sri Lanka) s 5(2).
(iii)The Applicants’ births are registered “in the prescribed manner” at either the office of a consular officer of Sri Lanka in Australia, or at the Minister’s office in Sri Lanka.
(m)It is common ground that there is no relevant Sri Lankan judicial consideration of the relevant statutory provisions. It follows that the Applicants’ present capacity to register their births, and therefore satisfy the second condition stipulated by s 5(2) of the SL Act, must be assessed by reference to the practice of the relevant SL authorities, and any relevant representations made by Sri Lankan authorities to the Department.
(n)Mr Nissanka was an officer of the Sri Lanka Administrative Service from 1985 to 2019. Between 2001 and 2014, Mr Nissanka was the Deputy Commissioner for Registration of Persons of Indian Origin and the Controller (Policy) of Immigration and Emigration. He was the Commissioner of Registration of Persons Department from 2014 to 2019. His evidence is that applications to register births of children born outside Sri Lanka are usually accepted without hesitation whether delayed or not. Where an application is made more than one year after the child’s birth, a fee of 500 rupees (about AU$8.78) is payable for each year of delay.
(o)The Applicants’ experts do not offer any competing opinion as to the practice of the Sri Lankan authorities . The Applicants’ witnesses point to the wide discretion of the Sri Lankan Minister in such matters being an impediment to predicting whether applications would be successful.
(p)The relevant Sri Lankan government website suggests that registration more than one year after the child’s birth is “hardly more than a formality upon the payment of a ‘fine’”.
(q)In relation to the third requirement, the need for the applications to be made “in the prescribed manner”, the Applicants’ experts witnesses, Dr Welikala and M Ganashathasan, identify documents which they say are necessary. Mr Nissanka’s evidence is that the Applicants would need to provide their Australian birth certificates in order to acquire Sri Lankan citizenship, in accordance with Citizenship Regulations 3(2) and 4, but that the remaining documents identified by Dr Welikala and Mr Ganeshathasan are not “strictly required”. A Sri Lankan Consular birth certificate is “not compulsory” in circumstances where the Applicants’ Australian birth certificates are available and has “no impact” on the acquisition of citizenship. While applications are to be made by the mother or father, where a parent is unable to do so, it can be made by another person having knowledge of the facts.
(r)The registration process laid down by s 5(2) of the SL Act is quintessentially the kind of evidentiary or procedural process that grounds an entitlement to acquire Sri Lankan citizenship in the sense that the concept of “entitlement” has been interpreted in decisions of the Tribunal. The process cannot be described as onerous nor can it be said that the Applicants have “no prospect of satisfying” the application requirements or that they otherwise confront such practical obstacles as to warrant a conclusion that they are “not entitled” to acquire Sri Lankan citizenship. In the case of children born overseas, the acquisition of nationality or citizenship by a procedure of registration at a designated foreign mission “is not at all unusual” but is rather “a matter of common international practice.”[28]
(s)There is no evidence before the Tribunal to suggest that the Sri Lankan Minister would not exercise the discretion to register the Applicant’s births notwithstanding more than 12 months have passed. The evidence suggests that they would.
(t)It is not the case that the Applicants have tried, but failed, to acquire Sri Lankan citizenship. They have taken no steps to register the Applicants’ births with Sri Lankan authorities or to apply for Sri Lankan citizenship, and they have stated that they do not intend to do so.
THE EVIDENCE
[28] citing Koroitamana v Commonwealth (2006) 227 CLR 31 at [37] (Kirby J).
Expert evidence
While the Applicants primarily relied on the reports of Dr Welikala and Mr Ganeshathasan admitted into evidence as exhibits A1 and A2, earlier correspondence from the Applicants’ legal representatives included opinions from Sri Lankan qualified legal practitioners on the operation of the SL Act and Sri Lankan law.[29] Similarly, while the Minister primarily relied on the report of Mr Nissanka (R3), at least one other legal opinion on the operation of Sri Lankan law was included in the material filed by the Minister.[30] No reference was made either in the Minister’s SFIC[31] or by the Minister’s counsel at the hearing to the opinion of Mr Samarakoon. The substance of the opinions provided by Mr Ganesharajan and Dr Guruparan were, in the case as argued by the Applicants, largely subsumed by the opinions of Dr Welikala and Mr Ganeshathasan (A1) and (A2). Dr Welikala’s evidence at the hearing was that he had been assisted in preparing those reports by Mr Ganeshathasan.[32] Both Dr Welikala and Mr Ganeshathasan were named as authors of the reports and both gave evidence at the hearing. In the end, the issues in contention in relation to the operation of Sri Lankan law came down to which of the evidence of Dr Welikala and Mr Ganeshathasan on the one hand, and Mr Nissanka (R3) on the other hand, is to be preferred.
[29] Legal opinions of KVS Ganesharajan dated 8 October 2019; R5. JMWX; CVDK,T8 and T12; R5. R5. JMWX; CVDK, T13; and legal opinion of Dr. Kumaravadivel Guruparan dated 26 August 2021.
[30] Independent legal opinion of Sam Samarakoon, legal practitioner formerly practicing in Sri Lanka, dated 29 October 2021.
[31] Minister’s SFIC, para [32] states that “The Minister …intends to rely upon an expert report of W.A.D.U.V.Nissanka dated 3 November 2021”.
[32] Transcript, 16.
Report of Dr Welikala (with Mr Ganeshathasan) dated 11 August 2021 (A1)
Dr Welikala’s opinion, relevantly, was to the following effect:
(a)Dr Welikala has an LLB, LLM and PhD. Mr Ganeshathasan has an LLB, LLM and is an attorney at Law of the Supreme Court of Sri Lanka. Both have extensive qualifications and experience and their qualification to give expert evidence was not contested by the Minister.
(b)There are no reported judgments on these questions of law. Their opinion is based on the SL Act, regulations which are publicly available and the authors’ previous research relating to citizenship and statelessness in Sri Lanka. Haphazard and ad hominem application of the law is not uncommon, but impossible to predict or make allowance for (para 3).
(c)A child born outside Sri Lanka is not a citizen unless and until the statutory procedure of registration has been completed.
(d)An individual can obtain Sri Lankan citizenship either by descent or by registration only in a manner recognised by the provisions of the SL Act. At para 6, the opinion quotes s 5(2) of the SL Act as quoted in [12] above without subsections (a) and (b).
(e)The status of a Sri Lankan citizen would only accrue upon the registration of the birth as provided by the SL Act.
(f)Registration of birth being mandatory to obtaining citizenship is in line with the overall structure of the SL Act. Any person who does not qualify under such provisions would not be entitled to Sri Lankan citizenship.
(g)Even where a person might prima facie fulfil the criteria provided by law, the SL Act specifically provides the Sri Lankan Minister with discretion to refuse such an application.
(h)Application for registration can be made with the office of the Sri Lankan Minister in Sri Lanka or, if the applicant is outside Sri Lanka, the relevant application and documentation can be submitted via the Consular Office if there is a Sri Lankan consular presence in the country of birth.
(i)Citing the relevant Sri Lankan government webpage, certain documents are required for registration including:
(i)Birth certificate of the child issued by the country where the birth took place;
(ii)Consular birth certificate issued by the Registration General Department of Sri Lanka or a letter issued from the nearest Sri Lankan Mission including the following details: name of the child, date of birth, sex, father’s name and nationality, mother’s maiden name and nationality;
(iii)Birth certificates of parents;
(iv)Marriage certificate of parents; and
(v)Parents’ travel documents and visas to prove residency at the time of the child’s birth.
(j)Because the bulk of the documentation required would have to be supplied by the parents, it is not possible for the registration process to proceed without the knowledge of the child’s parents. The application process is predicated upon an application being made by one of the parents (para 17).
(k)What constitutes a “good cause” for the Sri Lankan Minister to extend the time for registration of a child’s birth under s 5(2) of the SL Act has not been judicially determined. Even if an extension is granted, the registration process becomes significantly more complicated.
(l)Documents such as the parents’ marriage certificate and birth certificates would have to be traced and provided which would requires the parents to travel to Sri Lanka.
(m)A fee of Sri Lankan Rs. 500 levied for each year delayed in registration in addition to the standard Sri Lankan Rs. 5,000 fee.
(n)In practice, the possibility of late registration (beyond one year) after paying the fine appears applicable across the board to all persons. However, the authors were unable to trace a specific regulation which expressly makes provision for this.
(o)In the case of a late registration, once all documents have been submitted to the Department of Immigration and Emigration in Sri Lanka, either directly or through the Sri Lankan consular presence in the country of birth, the application is then forwarded to the State Intelligence Service for police clearance and security checks.
(p)While late registration (after one year) is legally possible, it is fraught with considerable practical difficulties and is subject to the wide discretion of the Sri Lankan Minister and other functionaries at the different levels of the administrative structure. Depending on the facts of the case, there is a very real possibility (more likely than not), that a child will not be registered despite best efforts to obtain Sri Lankan citizenship.
Report of Mr Nissanka dated 3 November 2021 (R3)
Mr Nissanka’s opinion, relevantly, was to the following effect:
(a)Mr Nissanka is a former officer of the Sri Lankan Administrative service having worked in various capacities in the service between 1985 and 2019. These included Deputy Commissioner for registration of persons of Indian origin and controller(policy) of Immigration and Emigration (2001 to 2014), Commissioner of registration of persons Department (2014 to 2019).
(b)During his time as an officer of the Department he had involvement with and knowledge of the SL Act. As the controller (policy) of the Immigration Department he was engaged with the activities related to enact a new immigration law since 2010.
Section 5(2) SL Act – “good cause”
(c)Like Dr Welikala and Mr Ganeshathasan, Mr Nissanka could not find any judicial consideration of the operation of the relevant sections of the SL Act. Good cause means an acceptable reason for delay. For example, unawareness about the law, change of intention at a later stage by the parents. There is no pre-determined guidance on this matter. Usually, every application is accepted without hesitation whether it is delayed or not.
(d)There is no written policy about allowing further period for delayed applications, but the practice is to allow every application if it complies with the basic requirement under section 5(2) of the SL Act whether it is delayed or not. He is aware that “thousands of delayed application (sic) under section 5 (2) of the citizenship Act, are allowed annually by the minister granting approval for further period” and “[m]ost SL citizens are not aware of section 5(2) of the citizenship Act. On most occasions, they come to knowledge about that when they apply for a passport for their child or apply for a national identity card for their child after reaching age 15”.[33]
[33] R3, 3-4.
(e)Registrations under section 5(2) of the SL Act apply until the child reaches age 22.
(f)A person can register their child’s birth occurring outside Sri Lanka after more than one year from the child’s birth on the payment of an extra fee. The extra fee is 500 rupees for each delayed year.
(g)No additional documents or thing is required for delayed registrations under section 5(2) of births occurred outside Sri Lanka, except the extra charges for the delay. The Immigration Department does not ask for the reasons for a delay in an application. Applicants are not required to apply for a further period separately. They are required only to submit their normal application for the registration under section 5(2).
(h)In cases of delayed applications, the controller general of the Immigration Department prepares a list of such applications and forwards the list to the Sri Lankan Minister for approval. This is the long-term practice of the Immigration Department.
(i)In relation to the documents required to be submitted with an application under s 5(2) of the SL Act, nothing is mentioned in the SL Act as being required for this purpose. According to the Citizenship Regulation 3(2) and 4, the foreign birth certificate of the child is required.
(j)Under Regulation 3(2), an applicant is required to supply to the consular officer evidence to satisfy the accuracy of the statements made in the application including the production of birth certificates, as may be necessary for the purpose.
(k)Under Regulation 5, the Permanent Secretary may make such inquiry and require such further evidence, as he may consider necessary, to verify the accuracy of the particulars stated in the application.
(l)The Immigration Department requires the documents such as birth certificates of parents, marriage certificates of parents, citizenship registration certificates of parents (if applicable) and, travel documents of parents to verify the accuracy of the particulars stated in the application. While these documents are helpful to ascertain the citizenship status, except for the child's birth certificate, these documents are not strictly required.
(m)The legal requirement is for the provision of evidence, not specific documents (other than the child’s birth certificate). The provision of the other documents is administrative.
(n)The list of documents on the Immigration Department’s website as being required are an administrative guide for determining satisfaction of qualification requirements. The only document that must be produced is the child’s birth certificate. If the other documents listed are not available, then other means of establishing the information which would be in the document, such as an affidavit, can be provided.
(o)Two things need to be established for registration of a child under s 5(2) of the SL Act, namely (1) the child was born outside Sri Lanka and (2) at least one of the parents must be a citizen of Sri Lanka.
(p)If an original document is not available, photocopies can be used. The Immigration Department can then verify the accuracy of the documents through the relevant databases of the Immigration Department and Registrar General Department. Even if the photocopies of the documents are not available, passport numbers of the parents can be used to trace the details through the relevant databases.
(q)Applications under s 5(2) of the SL Act can be made to the Sri Lankan Consulate General in Melbourne or the Sri Lankan High Commission in Canberra (Reg 2 and 3(1)).
(r)Where the parents of the child are dead or are unable to make an application within one year from the date of birth as required by the SL Act by reason of their illness, absence from the country or other good cause in the opinion of the Permanent Secretary or a Consular Officer, the application may be made by any other person having a personal knowledge of the facts (Reg 2).
(s)In relation to the observation of Dr Welikala and Mr. Ganeshathasan in their report that, in case of a late registration, the application under s 5(2) is forwarded by the Immigration Department to the State Intelligence Service for security clearance, Mr Nissanka is aware there is no such practice followed by the Immigration Department. Undertaking security clearance on minor age children is meaningless.
(t)At the end of his report, Mr Nissanka quoted verbatim paragraphs one to 10 of the Citizenship Regulations (R1) which relate to applications under s 5(2) of the SL Act.
Report of Dr Welikala (with Mr Ganeshathasan) dated 11 February 2022 (A2)

This report was to the following effect:
(a)The authors confirmed the opinions expressed in their previous report (A1). Their opinions were based on regulations which are publicly available and their previous research relating to citizenship and statelessness in Sri Lanka.
(b)Mr Nissanka’s opinion reinforced the point made in their first report that the wide discretion of the Sri Lankan Minister (and other functionaries at the different levels of the administrative structure) is, in itself, an impediment to predicting with any degree of certainty what the outcome of an application would be.
(c)Haphazard and ad hominem application of the law is not uncommon, but impossible to predict or make allowance for. Mr Nissanka’s opinion provided several examples of such application of the law.
(d)They were unable to respond to Mr Nissanka’s assertions in relation to alleged practice within the Immigration Department, as such information is not publicly available and because there are no publicly available guidelines which corroborate Mr Nissanka’s assertions.
(e)In relation to Mr Nissanka’s opinion as to what would constitute “good cause” for an extension of time for registration of a birth, and more particularly Mr Nissanka’s statement that “[u]sually every application is accepted without hesitation whether it is delayed or not”, and that “… the immigration department does not ask even the reasons for a delay in the application”, their evidence was that there was no publicly available guidelines or other official information which corroborated that position. They proffered the view that, if the approach described by Mr Nissanka were taken, it would be ultra vires s 5(2) of the SL Act. Such an approach would render the “good cause” requirement meaningless.
(f)The distinction between a specific document being “required” and a document that can otherwise contain the required information is meaningless. Insofar as the documents constitute evidence of the different elements contained in s 5(2) of the SL Act, they are required documents. None of the official documents available online make such a distinction.
Evidence at the hearing
Dr Welikala and Mr Ganeshathasan
In cross-examination Dr Welikala, confirmed that he was not admitted to practice law in Sri Lanka, had not worked for the Sri Lankan Immigration Department and had no training or experience in the practices or procedures of that Department.[34]
[34] Transcript, 18-9.
Dr Welikala confirmed that he was unable to find anything on any Sri Lankan Government website indicating what the practice of the Immigration Department was or what the Sri Lankan Minister might consider to be a “good cause” for the purposes of s 5(2) of the SL Act. He had not been involved in any applications on that issue.[35]
[35] Transcript, 24.
In relation to whether Dr Welikala had any basis to dispute Mr Nissanka’s evidence going to the practice followed by the Department in relation to acceptance of late registration of births, Dr Welikala’s evidence was that, while he did not have any such basis, his view was that the practice as described by Mr Nissanka “makes no legal sense.”[36]
[36] Transcript, 25.
Dr Welikala was cross-examined on his statement in his first report that applications for registration of births under s 5(2) could only be made by the child’s parents. It was put to Dr Welikala that the Citizenship Regulation 2 allowed others to make applications for a range of reasons. Dr Welikala conceded that the statement may not be correct and was made without him and Mr Ganeshathasan being aware of the Citizenship Regulations.[37]
[37] Transcript, 27.
Mr Ganeshathasan was asked about the power of the Sri Lankan Minister under s 5(2) to allow an extension of time for registration of a birth for “good cause”. His view was that he did not think that the exercise of that power, in particular determination of what would constitute “good cause,” could be delegated. He held the view, notwithstanding that he accepted that the Citizenship Regulations applied to applications made within the one year from birth period and those made outside that period and that Regulations 3 to 10 (R1), which culminate in (potentially) the issue of citizenship, do not refer to the Sri Lankan Minister being involved.[38]
[38] Transcript, 45-6.
Mr Ganeshathasan, like Dr Welikala, had been unable to find any judicial consideration or publicly available guidelines as to what would constitute “good cause” under s 5(2) of the SL Act. In relation to the Citizenship Regulations, Mr Ganeshathasan’s evidence was that certain of the terms used in the Regulations as tendered were no longer in use. Examples were the reference in the Regulations to a Ministry of Defence and External Affairs, which no longer exists, and to a Permanent Secretary of the Department. Again, Mr Ganeshathasan’s evidence was that such a position no longer exists.[39]
[39] Transcript, 52-3.
Mr Nissanka
Mr Nissanka’s evidence at the hearing was that he left the Immigration Department in 2014 and that between 2014 and 2019 he was the Commissioner of the Registration of Persons Department.[40] Counsel for the Applicants put to Mr Nissanka that he therefore had not had involvement in citizenship matters for the last eight years to which Mr Nissanka advised that from 2015 to 2019 he was a member of the Dual Citizenship Committee. Mr Nissanka’s evidence was that although the committee dealt with citizenship, it was related to dual citizenship rather than citizenship under s 5(2) of the SL Act.
[40] Transcript, 76.
Mr Nissanka’s evidence was that the requirement to obtain a security clearance, introduced in 2020, related only to applications for dual citizenship.[41]
[41] Transcript, 79.
A copy of the Citizenship Regulations (R1) was provided by Mr Nissanka from a pdf copy that he took when he was working in the Immigration Department in 2008. Although there had been amendments to the Citizenship Regulations since their introduction in 1951, the relevant provisions, Regulations 1-10, had not changed.[42] In cross-examination, Mr Nissanka was asked to comment on the view of Dr Welikala that the law in Sri Lanka, in particular the law relating to citizenship, can be applied in a haphazard way and that “sometimes the law is not faithfully applied”.[43] Mr Nissanka’s response was that in his view, the laws relating to citizenship were being applied correctly. His evidence was that he was not aware of any law or policy which discriminated against asylum seekers from Australia in relation to granting citizenship.
[42] Transcript, 81.
[43] Transcript, 83.
In relation to the document listed on the Sri Lankan government’s website as being needed for a citizenship application under s5(2), Mr Nissanka confirmed the statements that he had made in his report to the effect that the documents listed contained the information needed to successfully apply, but that other than the child’s birth certificate which was an essential document, the information which would be in the other documents could be otherwise supplied (e.g. by affidavit). His evidence was that:
In the six matters listed there are to verify two matters, that the child was born in a foreign country, and at that time of the birth, at least one of the parents citizenship of Sri Lanka, these are the two things to – need be verified so that six matters are relevant to that.[44]
[44] Transcript, 88.
Mr Nissanka was taken to Citizenship Regulation 2 which provides that another person, with knowledge of the facts, can make an application under s 5(2) in cases where the child’s parent is unable to do so. Counsel for the Applicants asked Mr Nissanka what the situation would be if the parents of the child, rather than being dead, sick or unable to make the application, simply chose not to make the application within the time prescribed. Mr Nissanka’s evidence was that it would still fall within the permanent secretary’s discretion to allow such an application. The primary consideration is that the Immigration Department will not allow a child to be stateless.[45]
Parties’ closing submissions
[45] Transcript, 90-1.
Applicants
In the context of s 21(8), the phrase “entitled to acquire” means actually obtain.[46] It requires not only a legal eligibility for it, but a practical capacity to get there. Relying on CAR15, the test is not whether someone could get the Applicants citizenship; the test is whether the Applicants could get citizenship such as they are.[47]
[46] Transcript, 113.
[47] Transcript, 113.
In the present case that would be difficult because it requires certain matters to be proven by the Applicants’ parents. This could not be done by a stranger to the family who would not prove the Applicants’ parents’ citizenship and the parents will not cooperate in that regard. In the face of the parents’ refusal to cooperate the Applicants have no entitlement to citizenship because “the children’s entitlement depends on proof of things about their parents, and those things cannot be proven”.[48]
[48] Transcript, 113.
The entitlement to citizenship has to be a present one.[49] The entitlement has to be within the reasonably foreseeable future. The situation in the present case is more intense than was the case in KKRG. In that case there was an assumption that the parents would cooperate, yet the steps required to obtain Cuban citizenship in that case might prove difficult and impose a burden on the parents.
[49] Citing KKRG at [25]-[31].
The Applicants also referred to DLSV which, like the present case involved an application for registration of a child’s birth after the prescribed period for registration. The Applicants accept that the statement by Deputy President Mc Cabe at [50] that;
The decisions in AP and KKRG emphasise that an applicant must do all they can reasonably to obtain citizenship with the other country through the regulation process.
represents an accurate statement of the law.
Citing CAR15, the Applicants submit that the word “applicant” must be read as the child and that you have to take the child as you find it. The undisputed evidence is that an application has to be made and the parents are not prepared to make that application or otherwise cooperate in the making of an application. The Applicants must win on that basis alone.[50]
[50] Transcript, 114.
It is irrelevant that the parents may be refusing to cooperate in the process of making the applications for Sri Lankan citizenship with the intent that by so doing the Applicants will have a “windfall” of Australian citizenship. That is the effect of the Australian law. The attitude of the parents is not the attitude of the children.
In the alternative, even if the parents were prepared to cooperate and even if they were to make their best endeavours, acquisition of citizenship is fraught with difficulty. The first difficulty is the discretion that needs to be exercised by the Sri Lankan Minister in relation to there being good cause to allow the late registration of the Applicants’ births. According to the Applicants, “everyone says” that discretion can only be exercised by the Sri Lankan Minister.[51] A refusal to have made the application in the past cannot be “good cause” (citing the evidence of Mr Ganeshathasan). There is therefore doubt whether the Sri Lankan Minister would exercise the discretion on favour of allowing the late registration. Accordingly, the Applicants would be entitled to succeed.
[51] Transcript, 115.
Even if the Tribunal were not to accept the above contentions, the documents necessary for an application under s 5(2) could not be procured. One of the reasons for this is that the Applicants’ parents were unlawful maritime arrivals, so they do not have any visa entitlement to Australia. I note in this regard that since these closing submissions were made, the Applicants’ parents and the Applicants have received Australian visas. I also note that the Applicants’ birth certificates and the parents’ marriage certificate (the parents were married in Australia in 2014) were included in the T documents.[52]
[52] R5, T7.
The apparently contradictory or inconsistent statements emanating from the Sri Lankan High Commission in Canberra (as recounted in ABF correspondence) of what the required documents are is supportive of the evidence of Dr Welikala and Mr Ganeshathasan that the application of the law is haphazard and is therefore analogous the situation in DLSV. Even with best endeavours, it may not be possible to acquire citizenship. It is, therefore, not appropriate to consider the Applicants as having an entitlement to acquire Sri Lankan citizenship.
Mr Aleksov submitted that the advice from the Sri Lankan High Commission in Canberra as set out in their letter dated 11 March 2020,[53] was that the Applicants’ parents needed to return to Sri Lanka to obtain birth certificates for the Applicants.
[53] R5, T11.
Mr Nissanka’s evidence should not be accepted. He has not worked for the Immigration Department since 2014. His evidence was shown to be out of date or inaccurate. His evidence that the relevant form did not require provision of a reason for failing to seek registration of a birth within one year was wrong. If, as Mr Nissanka claimed, that notwithstanding the requirement to show good cause to register a birth outside the one-year period, the practice is that a list of names without reasons is provided to the Sri Lankan Minister, then, that is supportive of the Applicants’ experts’ evidence that the application of the law in Sri Lanka is haphazard.
The Citizenship Regulations produced by Mr Nissanka should not be relied on as being current. Mr Nissanka’s evidence was that the copy produced dated from 2008 and did not include certain amendments that the evidence showed had been made and the Regulations refer to departments and public positions that no longer exist. Even Mr Nissanka’s own evidence of the practice of the Immigration Department during his time in that Department was not consistent in certain cases with the Regulations as produced.
The Minister
Mr Nissanka’s evidence should be accepted. He was a long-time, senior officer in the Immigration Department and clearly showed ample knowledge and provided responsive answers to questions. He showed that he knew the legislation inside and out. Although he retired in 2019, he was aware of amendments made to the law in 2020. There is nothing in the evidence of the Applicants’ expert witnesses that casts doubt on Mr Nissanka’s evidence.
In relation to the Applicants’ argument that in the absence of someone, parent or other, who is in a position to and willing to make an application on behalf of the Applicants, the Applicants have no entitlement to acquire citizenship, the Minister’s position is that the making of an application has nothing to do with the statutory test. The only question is whether the Applicants are entitled to acquire citizenship. If they could make an application and that application would be successful, then they are entitled to acquire citizenship.
If the Tribunal considers that the Applicants are entitled to acquire citizenship, but their parents are taking steps to prevent them from doing so, the review application must fail. Entitlement to acquisition is established; the fact that they do not seek to or are prevented from using their entitlement at this stage does not prevent them from acquiring citizenship. A person does not become an Australian citizen under this provision because an entitlement to acquire citizenship is not pursued. It is not about pursuing the entitlement or not pursuing it; it is about having an entitlement. If there is an apparent entitlement to acquire citizenship, then that is enough to exclude entitlement to Australian citizenship under s 21(8) of the Citizenship Act. The Applicants cannot get Australian citizenship by choosing not to engage in an entitlement to acquire Sri Lankan citizenship.
The case is about, and only about, whether Applicants are entitled to acquire Sri Lankan citizenship. The views and conduct of their parents can be no more than a distraction. If the Applicants are currently entitled to acquire Sri Lankan citizenship but are precluded by their parents from doing so for some years, that does not negate their entitlement to acquire Sri Lankan citizenship.
Dr Welikala indicated from questions from the Tribunal that if the Applicants are delayed in acquiring citizenship because of the conduct of the parents, that could constitute “good cause” under s 5(2) of the SL Act for the Sri Lankan Minister extending time for the Applicants to make an application. If the Applicants were adults now, they could not be heard to say that they do not have an entitlement to acquire Sri Lankan citizenship merely because they have chosen not to take steps and we say that similarly, as children, their parents' conduct is not the kind of practical consideration that removes their underlying entitlement to citizenship.
Under s 5(2) of the SL Act a person shall have the status of a citizen if two conditions are met. The first is that at least one of the parents is a Sri Lankan citizen. That is not disputed. The second is that the birth is registered with Sri Lanka authorities in the prescribed manner. Because the Sri Lankan Minister may extend the one year period for registration of the birth, the mere failure to register the birth within the first year does not remove the entitlement to have the status of a citizen of Sri Lanka.
Looking at the prior decisions of the Tribunal, Mr Lloyd referred to various passages in SM Taylor SC’s decision in AP, including [62], and contended that Mr Nissanka’s evidence was to the effect that registration time limits were not strictly applied so that the Tribunal could not be satisfied that the requirements for registration could not be met if the Applicants chose to proceed with applications for citizenship. That is enough to mean that the Applicants are entitled to acquire Sri Lankan citizenship and all that they are doing is choosing not to acquire it.
In the case of KKRG, the requirements of the Cuban law for acquisition of citizenship as it applied to the minor applicant in that case, gave rise to a “Catch-22”. In order to obtain citizenship, the child had to stay more than 90 days in Cuba, however, the child’s parents could not stay longer than 90 days. In that case DP Frost found that the steps that needed to be taken effectively amounted to a prohibition in the applicant obtaining Cuban citizenship.[54] In those circumstances DP Frost found that the applicant was not currently entitled to acquire the citizenship of a foreign country.
[54] KKRG at [28].
In the case of DLSV, DP McCabe found that, notwithstanding an entitlement to Zimbabwean citizenship under the relevant legislation, the practical obstacles which were placed in the parent’s way in the process of obtaining citizenship for the child meant that, in reality, the child could not acquire citizenship. In that case DP McCabe found that to be the case only after having found that the applicant’s mother had done everything possible.
In relation to the Applicants’ reliance on CAR15 to support the contention that the Applicants’ ability to obtain Sri Lanka citizenship is determined by their parents’ willingness to be engaged in the application process, the Minister submitted that CAR15 must be seen in the context of an application for a protection visa and is not applicable to a citizenship application. In the context of a protection visa application, the consideration is whether the person has a well-founded fear of persecution and in that regard, the decision-maker is to consider the possibility of relocation to another part of the country of origin to avoid harm. It was in that context of looking at and applying a reasonableness test to the child that the Court accepted that the child would face harm because the parents were not going to relocate. That consideration is not applicable in the present case where the issue is whether the Applicants have shown that they are not entitled to acquire citizenship.

The Applicants’ parents may be trying to achieve a migration outcome for themselves and their children by trying to get their children Australian citizenship. One can understand why the Applicants’ parents want to do that but, on the proper construction of s 21(8) of the Citizenship Act, it is not correct that parents making decisions not to pursue available entitlements are not practical obstacles that mean that the Applicants’ entitlement to Sri Lankan citizenship is not to be treated as an entitlement. That is just a choice that is made.
It is common ground that it is legally possible in accordance with the laws of Sri Lanka for the Applicants to acquire citizenship. The real issue is whether the Applicants lose the entitlement because of the conduct of their parents or due to issues with documentary or procedural requirements. Insofar as an extension of time for registration of the Applicants’ births is required, Mr Nissanka’s evidence was that thousands of extensions are allowed each year. That evidence was not contested by Dr Welikala or Mr Ganeshathasan.
The fact that documents are identified on the Sri Lankan High Commission’s website as being required to accompany an application for registration of births or an application for citizenship, does not make those documents a legal requirement. They are documents that contain information going to the elements of entitlement, namely the nationality of the parents and the place of the child’s birth. With the exception of the Applicants’ birth certificates, which were included in the T-documents,[55] the information which would be set out in the other documents referred to would be available through other documents, including Sri Lankan government records, documents held by Australian authorities and by affidavit.
[55] R5, T7.
Applicants’ reply
In reply to the Minister’s closing submissions, Mr Aleksov submitted that, while the Minister’s contention that the choice made by the parents not to pursue the Applicants’ entitlement to citizenship “has some force as to the spirit of what this regime [i]t has no force on the letter of the law”[56] because the Sri Lankan citizenship law imposes a requirement on the Applicants to prove the citizenship of their parents. Proof of the parents’ citizenship requires the cooperation of the parents.
[56] Transcript, 147.
CONSIDERATION
The Applicants’ summary of the task in the present case as stated in [25(g) and (h)] above is, in my view, accurate. The notion of “entitled to acquire”, on its ordinary grammatical form, read in its context, embraces situations where a person might need to take some steps to acquire foreign citizenship. The question is whether the steps required and the prospects of success are such that it could not be considered that the Applicants have a right to acquire Sri Lankan citizenship. As the Applicants contend, in each case this is a matter of fact and degree addressed by evidence of the foreign law and administrative practices. Again, as pointed out by the Applicants, this was the approach taken in KKRG and the other Tribunal decisions cited by the parties.
I also agree with the contention made by both parties that, in the absence of judicial consideration of the meaning of “entitled to acquire” in s 21(8) of the Citizenship Act, review of Tribunal decisions provides guidance on how “entitled to acquire” is to be interpreted. Senior Member Taylor SC in AP made the following relevant observations at [51]:
…The word “entitled” (with its various forms) has long been recognised as imprecise….. An actual entitlement to do or receive something, where it depends on compliance with a particular procedural step, may best be interpreted as referring to an entitlement “in possession” and not arising until the procedural step has been taken:.. But it is, in my opinion, insuperably difficult to apply that exclusive interpretation to the expression “entitled to acquire” in s 21(8) of the Australian Citizenship Act 2007. That expression is used in the context of a potentially contentious application for Australian citizenship where the person concerned will have no clearly established entitlement to any citizenship, and may have no interest in acquiring any foreign citizenship. In that context the expression “entitled to acquire” is far more apt to at least include “entitlement” in the sense of an underlying eligibility or qualifications. In such a context the concept of entitlement better refers to a legal eligibility, than to satisfaction of the evidentiary or procedural steps necessary to have the right formally recognised or vindicated: see Sterling Engineering Co Ltd v Patchett [1955] AC 534. Furthermore, the expression “entitled to acquire” implies a future event, as a result of a course of action that the person is “entitled” to take. That implication is inconsistent, in my mind, with the idea that the negative satisfaction to which s 21(8) of the Australian Citizenship Act 2007 refers, must be found unless the applicant can be shown to have a demonstrably accrued right to be granted (or receive acknowledgement of) foreign citizenship.
At [56] SM Taylor observed that:
... Even though I regard the primary connotation of entitlement as referring to underlying eligibility or qualification, I do not consider that it is correct in the application of s 21(8)(d) wholly to exclude consideration of the practicalities of any application process that may be required. If the circumstances affirmatively showed that an applicant had no prospect of satisfying the application requirements of the relevant foreign country, it is difficult to accept the proposition that a decision maker could honestly and reasonably fail to be satisfied that the person was “not entitled to acquire” citizenship of that country.
In KKRG, Deputy President Frost was considering whether an applicant had an entitlement to acquire Cuban citizenship for the purpose of determining whether s 21(8)(d) disentitled the applicant to citizenship by reason of statelessness. In relation to the process required by the Cuban government for acquiring citizenship, DP Frost observed that:
12.On the face of it, the process is simple. To obtain Cuban citizenship, all the applicant has to do is travel to Cuba, live there for at least 90 days, and wait for the “associated legal procedures” to be completed, some of which will not be initiated until after the expiry of the 90-day period. It was indicated to me during the hearing that those procedures could be expected, but are not guaranteed, to be completed within a further 90-day period.
13.There is, however, one problem. The applicant is not yet 18 months old. He is not likely to want to travel to Cuba by himself. Of course, he could always travel with his parents, but they have been declared emigrants. Because of that designation, the same Cuban Migration Law prevents them from staying in Cuba for more than 90 days.
14. The situation is reminiscent of Catch-22…
DP Frost accepted Senior Member Taylor SC’s analysis in [51] of AP and said at [23]:
… I think the analysis is correct. The simple proposition it puts forward is that a person with an apparent entitlement to acquire the citizenship of another country cannot claim to be not entitled to do so simply because mandatory, but straightforward, evidentiary or procedural steps have not been undertaken.
DP Frost went on to agree with SM Taylor’s observation at [56] of AP (see [70] above) commenting, at [27], that:
… They serve to emphasise what was already implied at [51] – that the “application requirements” would generally be straightforward and largely procedural, and not so onerous as to undermine or negate the “underlying eligibility or qualification”.
At [28] and [29] DP Frost set out the substantial logistical and temporal obstacles that needed to be overcome, including the applicant child and his parents having to travel to and stay in Cuba for an extended period, in fact a period longer than permissible in the case of the parents, and concluded that:
30. These are significant barriers to the applicant’s acquisition of Cuban citizenship. That is despite the fact that the Cuban Constitution specifies that the applicant is a “Cuban citizen by birth”. The barriers arise in this particular case – which according to the Cuban Embassy is not a typical case – not only because both of the child’s parents are Cuban, but also because both of them have been declared emigrants. If only one of them were Cuban then the likelihood is that the child would be entitled to acquire the citizenship of the other parent. Alternatively, if only one of them had been declared an emigrant, then the child could at least have remained in Cuba in the uninterrupted care of the other.
31. The barriers make it impossible, in any practical sense, for the applicant to acquire Cuban citizenship. I do not agree that the Minister’s description of the steps as “logistically complicated” is entirely apt. Furthermore, it is a gross understatement to say that there are “obvious practical difficulties” confronting the applicant. The steps that have to be taken amount to an effective prohibition against the applicant’s acquisition of Cuban citizenship. They are not merely “procedural”; they are so onerous that they negate his underlying eligibility for Cuban citizenship. The applicant is not entitled to acquire the citizenship of Cuba because the barriers placed in his path by the Cuban government effectively prevent him from doing so.
As a result of that analysis, DP Frost found that the applicant was not currently entitled to acquire the citizenship of a foreign country.[57]
[57] KKRG at 32.
Both parties referred to DLSV. The issue in that case was whether the child applicant was entitled to acquire Zimbabwean citizenship. The facts as set out by DP McCabe in that matter were that the applicant’s parents had returned to Zimbabwe and sought to obtain various documents, including birth certificates, from relevant government authorities to register the child. The applicant’s mother claimed that she attended the relevant government offices on six occasions where she was harassed, accused of being a spy and on one occasion, beaten by police. In the end the applicant’s parents were unable to register the applicant’s birth or obtain necessary documents. DP McCabe, having reviewed the evidence, including expert evidence on Zimbabwean immigration law and practice, made the flowing observations:
44. 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… 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.
45. 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:… 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].
…
49.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]
50. 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.
While there was debate in DLSV as to whether the applicant’s mother had done everything that she could to register the applicant’s birth in Zimbabwe, DP McCabe concluded at [56] that:
… 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.
and at [57]:
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.
In those circumstances, DP McCabe found that the applicant was not entitled to acquire citizenship of a foreign country.
Both the Applicants and the Minister referred in their submissions to the decision in JGGN. At [152] of his decision in JGGN, SM Puplick quoted [49] of DLSV (see [76] above) and at [190] quoted the full text of [56] of SM Taylor’s decision in AP (see [70] above). While SM Puplick referred to those passages from the decisions of DLSV and AP, the primary issue for determination in JGGN was not whether an applicant was entitled to acquire citizenship, but rather whether the applicant’s mother, and therefore the applicant, were citizens of Bangladesh. SM Puplick concluded at [191] that:
Sometimes in matters such this, as Pilate recognised,[114] absolute truth is elusive and the Tribunal must make findings on a balance of probabilities guided by the evidence before it. It must also have some eye to the questions of practicality resulting from its decisions. Even if it were to find, which is does not, that Ms SK is a citizen of Bangladesh and hence so is the Applicant, what would that mean for them as individuals? There is no realistic or practical way in which either of them could obtain the benefits of Bangladeshi citizenship since the primary documents which the Births and Deaths Registration Act 2004 require simply do not exist.
The case of JGGN is not particularly comparable to the present matter as the issue agitated and to which the evidence was directed was, primarily, whether the applicant’s mother was a citizen of a foreign country which would have made the applicant a citizen of that country, not whether the applicant was entitled to acquire the citizenship of foreign country. It does appear, however, that SM Puplick accepted AP and DLSV, or at least the paragraphs from those decisions that he quoted, as being correct statements of the law.
The Applicant’s rely on CAR15 to argue that because the Applicants’ parents refuse to cooperate in the Applicants applying for Sri Lankan citizenship, and their cooperation is necessary, the Applicants therefore are not “entitled to acquire the citizenship of a foreign country” for the purposes of s 21(8)(d) of the Citizenship Act. The Minister contended that CAR15 must be seen in the context of an application for a protection visa and is not applicable to a citizenship application.
In CAR15, the Full Court of the Federal Court (Allsop CJ, Kenny and Snadden JJ) were, relevantly, considering whether the Tribunal had committed jurisdictional error by conflating the reasonableness of the appellant’s relocation with the reasonableness of her parents’ relocation.[58] In that regard the Court and the Tribunal were considering whether complementary protection obligations arose under s 36(2)(aa) of the Migration Act 1958 (Cth) which provides that such obligations are owed if there is a real risk that the non-citizen will suffer significant harm in a particular country. That concept of risk of significant harm is qualified by s 36(2B)(a) of the Migration Act which provides that:
... there is taken not to be a real risk that a non-citizen will suffer significant harm in a country if the Minister is satisfied that:
(a) it would be reasonable for the non-citizen to relocate to an area of the country where there would not be a real risk that the non-citizen will suffer significant harm.
[58] CAR15 at [17]: Ground 6.
The Tribunal in that case had found that, while the child applicant faced significant harm if she returned with her parents to the region of their home village, it was open to the parents to relocate to Lagos where the applicant would not be subject to the relevant harm. The Full Court noted (at [33]) that “[i]n order that an applicant might be disqualified from complementary protection, s 36(2B)(a) requires “satisfaction” that “it would be reasonable for [a visa applicant] to relocate...”. At [37] the Full Court held:
Having found that her return to Nigeria would engage a well-founded fear of persecution and subject the appellant to the real risk of significant harm, the Tribunal either needed to grant the application or make a finding pursuant to which it could be said that the appellant (as opposed to her parents) had or would have had open to her (as opposed to them) a reasonable opportunity to relocate to Lagos. As stated above, it is difficult, although not impossible, to conceive of circumstances in which it might be proper for the Tribunal to make the latter finding. It very likely would not have been in this case.
and at [40]:
…the Tribunal misunderstood the state of satisfaction that it was to form under s 36(2B)(a) of the Act and, consequently, directed itself to the wrong question: namely, whether it was reasonable for the appellant’s parents to relocate to Lagos with her and her sister. It proceeded to determine whether the appellant was at risk of “significant harm” for the purposes of s 36(2)(aa), without properly understanding in what circumstances s 36(2B)(a) of the Act recognised that she might not be. In so doing, it failed properly to exercise the jurisdiction that was conferred upon it.
I accept the Minister’s contention that the circumstances of CAR15 and the issue that the Tribunal, and then the Full Court, in that case were considering, is materially different to the issue in the present case. In CAR15, the Full Court found that Tribunal had asked the wrong question for the purposes of s 36(2B)(a) of the Migration Act (see [82] above). The Tribunal had, in effect, asked whether it would be reasonable for the applicant’s parents to relocate to Lagos rather than asking the question directed by s 36(2B)(a), namely, whether it would be reasonable for the applicant to relocate.

I note that the Full Court at [37] also left open the possibility that in relevant circumstances it would have been open to the Tribunal to have found that the applicant, independently of her parents, could have relocated to Lagos. In the end at [40], the Full Court found that the Tribunal had misdirected itself on the question to be asked (see [83] above).
I do not accept that the judgment in CAR15 gives rise to the broad principle contended by the Applicants that the actions, or inaction, of the parents cannot be taken into account in assessing whether a child has an entitlement to acquire citizenship of a foreign country for the purposes of s 21(8)((d) of the Citizenship Act. The issue in CAR15 was whether the Tribunal had asked itself the correct legislative question. Given the specific nature of the subject matter and the bases upon which the Full Court allowed the appeal, it is difficult to see how CAR15 has any application in determining the relevant question in the present matter.
The authorities to which the Applicants referred and by which they contend I should be guided (see [25] above), assessed the children’s entitlement to acquire citizenship of a foreign country by reference, in part at least, to the actions of the parents. At [50] in DLSV, DP McCabe assessed whether the applicant had done “all they can reasonably do to obtain citizenship” of Zimbabwe by reference to what the applicant’s parents had done, noting that that was the approach taken in AP and KKRG (see [76] above). He found that the applicant did not have an entitlement to acquire citizenship of Zimbabwe only after he was “satisfied [that] the applicant’s family [had] done all that can reasonably be expected in the circumstances to obtain registration of the applicant’s birth” (see [77] above).
I agree with SM Taylor SC’s analysis at [51] of AP that “the concept of entitlement better refers to a legal eligibility, than to satisfaction of the evidentiary or procedural steps necessary to have the right formally recognised or vindicated”. SM Taylor SC went on to observe that, in assessing whether such an entitlement in reality existed, including in a situation where “…the person concerned… may have no interest in acquiring any foreign citizenship” it is appropriate to consider “…the practicalities of any application process that may be required” and that, “[i]f the circumstances affirmatively showed that an applicant had no prospect of satisfying the application requirements of the relevant foreign country”, then such an entitlement would not exist (see [69] and [70] above). What SM Taylor SC is directing the consideration to is the procedural requirements imposed by the foreign country for a conferral of citizenship, not whether, as a matter of fact, the particular applicant is interested in or will cooperate in the process of obtaining foreign citizenship. As DP Frost put it in KKRG, following the approach of SM Taylor in AP, the question is whether the country’s “application requirements …are not so onerous as to undermine or negate the ‘underlying eligibility or qualification” (see [73] above).
In the case of AP, the issue was whether the applicant’s mother could satisfy the Tribunal that, because she did not know the identity or nationality of AP’s father, she could not make an application for citizenship of a foreign country which would require the involvement of AP’s father. SM Taylor SC noted at [60] that, in claiming that she was unable to advance an application for citizenship of a foreign country for AP because she did not know the identity of AP’s father, it is possible that AP’s mother’s “primary motivation is to have AP obtain Australian citizenship if she can”. Irrespective of AP’s mother’s motivation, SM Taylor SC did not accept that AP’s mother could not ascertain the identity and nationality of AP’s father which would, with a number of further steps if necessary, enable AP’s mother to make an application on behalf of AP for citizenship of a foreign country. In those circumstances SM Taylor SC was “not satisfied AP was not ‘entitled to acquire’ the citizenship of either India or Bangladesh.”[59] He made that finding even though it was not determined of which country AP might have an entitlement to acquire citizenship and notwithstanding that any application for citizenship of the foreign country would require the involvement of AP’s father.
[59] AP at [62].
The test generally stated by SM Taylor SC in [51] and [56] of AP was adopted by the Tribunals in KKRG and DLSV. In each of those cases what the Tribunal considered in determining whether the applicants had the right to acquire citizenship of a foreign country was the extent and nature of what, in each case, the relevant country required and whether those requirements could, as a matter of fact with reasonable effort on the part of the applicant (or in both cases the applicants’ parents), be met. In the case KKRG, DP Frost found that the applicant did not have an entitlement to acquire Cuban citizenship because the requirements imposed by the Cuban government when applied to the circumstances of the applicant amounted “to an effective prohibition against the applicant’s acquisition of Cuban citizenship…they are so onerous that they negate his underlying eligibility for Cuban citizenship.” (see [74] above).
Similarly, in DLSV, DP McCabe, following the approach used in AP and KKRG, assessed whether the requirements imposed by the Zimbabwean government could be met in the case of that applicant through the best efforts of the applicant’s mother (see [77] above).
The applicants in each of AP, KKRG and DLSV were children and reliant on their parents in applying for citizenship of the foreign country. In the case of DLSV, DP McCabe was satisfied that the applicant’s mother had “done all that can reasonably be expected” in order to find that the applicant did not have an entitlement to acquire citizenship of a foreign country. In KKRG, DP Frost found that, because of the practical impossibility of successfully making an application for citizenship because of the conditions imposed on the applicant’s parents by the process mandated by Cuban government, the process was “so onerous that they negate [the applicant’s] underlying eligibility for Cuban citizenship.” In those circumstances DP Frost found that the applicant was not entitled to acquire citizenship of a foreign country for the purposes of s 21(8)(d) of the Citizenship Act.
In the present case the Applicants’ parents have not taken, and will not take, any steps to acquire Sri Lankan citizenship for the Applicants.[60] In closing submissions, the Applicants’ counsel contended that the phrase “entitled to acquire” in s 21(8)(d) means “actually obtain” (see [42] above). That contention is made in the context of the Applicants’ parents refusing to do anything to assist in the Applicants acquiring Sri Lankan citizenship. In other words, the contention is that because the parents refuse to take any action for the Applicants to obtain Sri Lankan citizenship, the Applicants cannot “actually obtain” citizenship of Sri Lanka and therefore are not “entitled to acquire” Sri Lanka citizenship. I do not accept that contention. Firstly, it misstates s 21(8)(d) of the Citizenship Act. Had the legislature intended the provision to mean “actually obtain”, those words would have been used. On their plain and ordinary meaning, the words “entitled to acquire” do not mean “actually obtain”.[61]
[60] Applicants’ submissions at [43]; A3; A4.
[61] Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; 195 CLR 355 at 384 at [78].
Secondly, if “entitled to acquire” means “actually obtain”, in every case where an applicant sought to claim statelessness, all that would be required to achieve statelessness would be for the applicant, or in the case of a minor, the applicant’s parents, to refuse to take any step to acquire citizenship. That would significantly subvert the effective operation of the Citizenship Act and allow people to game the system by simply refusing to take even the most basic step to acquire citizenship of a foreign country to which they or their child are entitled.
Thirdly, the cases to which the Applicants themselves refer make it clear that the words “entitled to acquire” do not mean “actually obtain”. The meaning of those words as stated by SM Taylor at [51] and [56] of AP (see [69] and [70] above), accepted in subsequent decisions of the Tribunal, is a correct statement of the law. The analysis undertaken by the Tribunals in KKRG and DSLV also make it clear that the meaning of “entitled to acquire” is not “actually obtain”.
DP Taylor SC referred to “consideration of the practicalities of any application process that may be required.”[62] The relevant practicalities are those relating to the processes or procedures required by the relevant foreign country, not what the applicant or someone on behalf of the applicant might choose to do. In the case of KKRG, DP Frost accepted that the requirements of the Cuban government simply could not be met in that case because of the timing requirements and visa limitations. In DSLV, DP McCabe found that, despite the best efforts of the applicant’s mother, the Zimbabwean application requirements could not be met primarily because of the incompetence and/or corruption of the relevant authorities.
[62] AP at [56].
There was extensive expert evidence in the present case about the requirements for and the procedures in making an application for Sri Lankan citizenship (see [27]-[41] above). The parties’ respective evidence took different approaches. The expert evidence of Dr Welikala and Mr Ganeshathasan, both of whom were legally qualified, approached the issue from the perspective of what the SL Act provided and how they thought that various provisions of that act would be interpreted. As noted at [31] above, in cross-examination, Dr Welikala agreed that he was not admitted to practice law in Sri Lanka, had not worked for the Sri Lankan Immigration Department and had no training or experience in the practices or procedures of that Department.
Dr Welikala further confirmed that he was unable to find anything on any Sri Lankan Government website indicating what the practice of the Immigration Department was or what the Sri Lankan Immigration Minister might consider to be a “good cause” for the purposes of s 5(2) of the SL Act. He had not been involved in any applications involving s 5(2) of the SL Act. He accepted that he had no basis to dispute Mr Nissanka’s evidence as to the practice followed by the Department in relation to acceptance of late registration of births. Dr Welikala’s observation was that the practice described by Mr Nissanka “makes no legal sense” in the context of the legislation. Neither he nor Mr Ganeshathasan was aware of the Citizenship Regulations.
Mr Ganeshathasan advised that he had not been involved in any cases dealing with s 5(2) of the SL Act. His evidence as to the operation of SL Act, in particular s 5(2), was based on his “general understanding of Sri Lankan administrative law and the general principles of the law.”[63]
[63] Transcript, 42.
The evidence of Mr Nissanka approached the issue from the perspective of what the actual practices of the Sri Lankan Immigration Department are, or at least were during the 30 years that he worked for the Department. He also referred extensively to the Citizenship Regulations. As noted above, neither Dr Welikala nor Mr Ganeshathasan could say that the evidence of Mr Nissanka as to the practices actually followed by the Sri Lankan authorities was not accurate.
Mr Nissanka’s evidence was to the effect that, while the Sri Lankan Government or Sri Lankan High Commission webpages may specify various documents as being required for an application of registration of birth and citizenship, in practice there was only one document, the birth certificate that was treated as being required and that the information that would be contained in the other documents could be provided by alternative means (see [40] above). His evidence was also to the effect that insofar as s 5(2) of the SL Act required registration of the birth within one year, the discretion under s 5(2) to extend that time was in the majority of cases, exercised.
The administrative requirements for registration of a child’s birth and application for citizenship as described by Mr Nissanka, whose evidence in that regard I accept (noting that the Applicants’ experts were not in a position to contest that evidence), are “generally…straight-forward and largely procedural, and not so onerous as to undermine or negate the ‘underlying eligibility or qualification’’” (KKRG at [27]: see [73] above). The procedures do not constitute “[B]arriers [that] make it impossible, in any practical sense, for the [Applicants] to acquire [Sri Lankan] citizenship” (KKRG at [31]: see [74] above).
Accordingly, I am not satisfied that the Applicants are not “entitled to acquire” the citizenship of Sri Lanka.
DECISION
The decisions of the delegate of the Minister made on 10 March 2021 under s 24 of the Citizenship Act to refuse the Applicants’ applications for the grant of Australian citizenship are affirmed.

I certify that the preceding 104 (one hundred and four) paragraphs are a true copy of the reasons for the decision herein of Deputy President Boyle

......................[Sgd]..................................................
Associate
Dated: 28 March 2023

Dates of hearing: 2 and 3 June 2022

Counsel for the Applicant:
Mr A Aleksov (instructed by Ms C Ford of Carina Ford Immigration Lawyers)

Counsel for the Respondent: Mr S Lloyd and Ms L Coleman (instructed by Mr A Cunynghame of Sparke Helmore Lawyers)

Dates of hearing:	2 and 3 June 2022
Counsel for the Applicant:	Mr A Aleksov (instructed by Ms C Ford of Carina Ford Immigration Lawyers)
Counsel for the Respondent:	Mr S Lloyd and Ms L Coleman (instructed by Mr A Cunynghame of Sparke Helmore Lawyers)