KKRG and Minister for Immigration and Border Protection (Citizenship)
[2015] AATA 635
•27 August 2015
KKRG and Minister for Immigration and Border Protection (Citizenship) [2015] AATA 635 (27 August 2015)
Division
GENERAL DIVISION
File Number(s)
2014/4917
Re
KKRG
APPLICANT
And
Minister for Immigration and Border Protection
RESPONDENT
DECISION
Tribunal Deputy President S E Frost Date 27 August 2015 Place Sydney The decision under review is set aside and in substitution the Tribunal decides that the application for Australian citizenship is approved.
....................[sgd]..............................................
Deputy President S E Frost
CATCHWORDS
CITIZENSHIP – eligibility – statelessness – whether the applicant is not entitled to acquire the nationality or citizenship of a foreign country – decision set aside
LEGISLATION
Australian Citizenship Act 2007 (Cth) ss 21, 24
CASES
Re AP and Minister for Immigration and Border Protection [2014] AATA 706
REASONS FOR DECISION
Deputy President S E Frost
27 August 2015
INTRODUCTION
The applicant is a male infant, born in Australia in January 2014 to Cuban parents.
In August 2014 his parents applied for him to become an Australian citizen. A delegate of the Minister considered the application, but formed the view that the applicant did not satisfy the eligibility requirements for Australian citizenship. The application was therefore refused.
The Tribunal is now asked to review the delegate’s decision.
THE ISSUES
The questions for consideration by the Tribunal arise under the Australian Citizenship Act 2007 (the Act). Section 21(1) of the Act provides that a person can apply to the Minister to become an Australian citizen. Section 24(1) requires the Minister either to approve, or to refuse to approve, the application. Section 24(1A) provides that the Minister must not approve the application unless the person is eligible to become an Australian citizen under one of the eligibility provisions in s 21(2) to (8). This case turns on the question whether the applicant is eligible under s 21(8). That subsection, headed “Statelessness”, provides as follows:
(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.
Paragraphs (a), (b) and (c) of s 21(8) are not in contest since the Minister is satisfied that each of the specified sets of circumstances exists. I am also satisfied as to those matters.
However, the Minister has not reached the requisite level of satisfaction as to the matters in paragraph (d). This is the only area in contest between the parties.
THE FACTS
Both the applicant’s parents were born in Cuba.
In September 2011 the applicant’s father left Cuba on a Permit to Travel Abroad (PVE). The Cuban Migration Law in effect at the time stated that all Cubans travelling overseas on a PVE were allowed to stay outside Cuba for a maximum of 11 months before being automatically declared an emigrant[1]. The father did not return to Cuba within that 11 month period and so, in August 2012, he was automatically declared an emigrant.
[1] This information was provided by the Cuban Embassy, Canberra: Attachment A to Exhibit R2
In September 2012 the applicant’s mother left Cuba on a PVE. By then the Cuban Migration Law had been modified so as to allow Cubans travelling overseas on a PVE to stay outside Cuba for a maximum of 24 months before being automatically declared an emigrant[2]. The mother did not return to Cuba within that 24 month period and so, in September 2014, she was automatically declared an emigrant.
[2] Ibid
THE CUBAN CONSTITUTION AND CUBAN MIGRATION LAW
Article 28 of the Cuban Constitution provides that “Cuban citizenship is acquired by birth or through naturalization”. Article 29 provides relevantly as follows[3]:
Cuban citizens by birth are:
a) …
b) …
c) those born abroad, one of whose parents at least is Cuban, who have complied with the formalities stipulated by law;
d) …
e) …
[3] T4-34
The applicant was born abroad for the purposes of the Constitution and both of his parents are Cuban. He will therefore be able to acquire Cuban citizenship by birth if he complies with the formalities stipulated by law. Those formalities are explained in correspondence from the Cuban Embassy[4]:
In this regard, the Cuban Migration Law states that one of the requirements for any child born overseas to Cuban parents is that he/she must live in Cuba for an uninterrupted minimum period of 90 days. Some of the associated legal procedures for the child to complete the whole process to obtain the Cuban citizenship are initiated after this time, and while the child is still in Cuba.
[4] Attachment A to Exhibit R2
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.
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[5].
[5] Ibid
The situation is reminiscent of Catch-22[6], a novel set during World War II about the experiences of the fictional 256th Squadron:
There was only one catch and that was Catch-22, which specified that a concern for one’s safety in the face of dangers that were real and immediate was the process of a rational mind. Orr was crazy and could be grounded. All he had to do was ask; and as soon as he did, he would no longer be crazy and would have to fly more missions. Orr would be crazy to fly more missions and sane if he didn’t, but if he was sane he had to fly them. If he flew them he was crazy and didn’t have to; but if he didn’t want to he was sane and had to. Yossarian was moved very deeply by the absolute simplicity of this clause of Catch-22 and let out a respectful whistle.
“That’s some catch, that Catch-22,” he observed.
“It’s the best there is,” Doc Daneeka agreed.
[6] Catch-22, a novel by Joseph Heller, published in 1961
The Minister’s representatives, not content to let out a respectful whistle, sought clarification of the position by writing to the Cuban Embassy in the following terms:
In your 15 January 2015 letter you appear to have concluded that as it would be impossible for both [parents] to together accompany [the applicant] to Cuba for any longer than 90 days, it would be impossible for [the applicant] to obtain Cuban citizenship.
We can see there will be obvious practical difficulties for [the applicant] and his parents if he wishes to obtain Cuban citizenship. However we would appreciate clarification as to whether the Cuban immigration regulations would require both parents to be present with him in Cuba while his citizenship application is processed, or could, for example, each parent travel separately with [the applicant] meaning that at a minimum [the applicant] could remain with one parent in Cuba for 180 days.
The Cuban Consul confirmed by return email:
In the case of [the parents], both of them don’t have to be present with [the applicant] in Cuba while his citizenship application is processed. Each parent can travel separately making a total of 180 days.
As [the parents] – this is not often the typical case – are both Cubans, as emigrants they can stay 90 days each in Cuba.
PRELIMINARY OBSERVATIONS
The question in this case is whether I am satisfied that the applicant is not entitled to acquire the nationality or citizenship of a foreign country.
The first point to note is that, although nationality and citizenship are referred to in discrete subparagraphs of s 21(8)(d), the expression of the concepts in that way seems to have been intended only to cover the circumstance that some countries refer to one concept and some to the other. There is no relevant distinction between the two.
The second point is that the expression citizenship (or nationality) of a foreign country directs the decision-maker to consider the status of the claimant with respect to any foreign country whose citizenship a claimant is potentially entitled to acquire. It does not require the decision-maker to consider the position with respect to every country in the world. In the current case, there is only one obvious potential target foreign country, and that is Cuba. The enquiry is restricted to that country.
“NOT ENTITLED TO ACQUIRE”
What do the words “not entitled to acquire” in s 21(8)(d) mean?
In Re AP and Minister for Immigration and Border Protection [2014] AATA 706, Senior Member Taylor SC said at [51]:
… [The expression “entitled to acquire”] 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.
I had some initial reservations about that analysis since it seemed to be equating the concept of a person being not entitled to acquire the citizenship of a foreign country with being not eligible to acquire that citizenship. The reservations arose from the fact that the Parliament had chosen to use the word “eligible” in the chapeau of s 21(8) but the word “entitled” in paragraph (d) of the same subsection. Ordinarily that would suggest an intention that the words mark out different territory, with little scope for one to elide into the other.
But on reflection, 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.
However, I would add the following to the analysis in AP. The Senior Member’s reference to the implication of a “future event” in the context of an “entitlement to acquire”, while accurate, should not be allowed to mask the true enquiry, which must focus on a person’s current entitlement. While the acquisition of citizenship will necessarily be a future event, the question is whether the person is, or more accurately is not, currently entitled to acquire it.
Nor should the decision-maker lose sight of the fact that the Act talks of a claimant being not entitled to acquire citizenship. It does not talk of a claimant being not entitled to apply for citizenship. In some cases there will be a wide gap between a person’s entitlement to apply for citizenship and the person’s entitlement to acquire it.
In AP, SM Taylor went on to observe, at [56]:
… 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.
I agree with those observations. 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”.
CONSIDERATION
The circumstances of this case are unusual. That is because the procedures adopted by Cuba to allow a child born outside Cuba, to Cuban parents, to become a Cuban citizen are unusual. It is not simply a matter of approaching the Cuban embassy in the country of birth, completing a few forms and providing supporting documents. Instead the child must travel to Cuba and stay there for a full 90 days before even being entitled to apply for citizenship. Then he must wait while the application is considered and determined. Until the application is determined, he cannot leave the country, otherwise the process would have to start over. That is even assuming he is allowed to leave the country, since I was told, and I accept, that the travel documents that he would be given to allow him to enter Cuba would not also allow him to leave Cuba. He could only leave if he were given a fresh set of documents specifically authorising his departure.
And there is more. To achieve that outcome he has to rely on the assistance of others: to accompany him on the trip to Cuba, to clothe and feed him while he is there, and to engage in the processes necessary to secure citizenship of that country. Logically one would nominate either or both of his parents to fulfil those roles. But the applicant’s father told me, and I accept, that, as emigrants, neither he nor his wife would be entitled to work in Cuba if they returned there with their son and so they would have to support themselves on any savings they had accrued. On top of that, they would have to pay a mandatory $US10 per day, per family member, for medical insurance. And neither of them could stay with their son for more than 90 days.
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.
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.
CONCLUSION
I am satisfied that in the particular circumstances of this case, the applicant is not currently entitled to acquire the citizenship of a foreign country. His eligibility to become an Australian citizen is therefore established under s 21(8) of the Australian Citizenship Act 2007.
Since there is now no impediment to granting the application for citizenship, I will set aside the decision under review and substitute a decision that the application for Australian citizenship is approved.
I certify that the preceding 33 (thirty -three) paragraphs are a true copy of the reasons for the decision herein of Mr S E Frost, Deputy President .....................[sgd]..............................................
Associate
Dated 27 August 2015
Date of hearing 26 May 2015 Advocate for the Applicant His father Solicitors for the Respondent Mr M Bock, Clayton Utz
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