LYNNE GRAGE and MINISTER FOR IMMIGRATION AND CITIZENSHIP
[2013] AATA 84
[2013] AATA 84
Division GENERAL ADMINISTRATIVE DIVISION File Number
2012/4811
Re
LYNNE GRAGE
APPLICANT
And
MINISTER FOR IMMIGRATION AND CITIZENSHIP
RESPONDENT
DECISION
Tribunal Dr P McDermott, RFD, Senior Member
Date 20 February 2013 Place Brisbane The Tribunal affirms the decision under review.
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Dr P McDermott, RFD, Senior Member
CATCHWORDS
IMMIGRATION AND CITIZENSHIP – Citizenship – Application for Australian citizenship by descent – Neither parent was an Australian citizens at date of birth of applicant – Decision under review affirmed.
LEGISLATION
Administrative Appeals Tribunal Act 1975 (Cth) s 34J
Australian Citizenship Act 1948 (Cth) ss 10, 11
Australian Citizenship Act 2007 (Cth) s 16
Naturalization Act 1903 (Cth)
REASONS FOR DECISION
Dr P McDermott, RFD, Senior Member
20 February 2013
INTRODUCTION
Lynne Grage (the applicant) has sought the review of a decision to refuse her application for Australian citizenship by descent. The issue for the Tribunal to determine is whether the applicant had a parent who was an Australian citizen at the time of her birth.
The parties have consented to this application being determined without a hearing pursuant to s 34J of the Administrative Appeals Tribunal Act 1975. This procedure is appropriate as there is no dispute as to the facts that relate to this application.
BACKGROUND
The applicant was born in Germany in 1982. The applicant in her application, as well as the delegate of the respondent in the decision record, both have mentioned that her mother, who was born in South Africa, obtained Australian citizenship by descent on 19 June 1985.[1] At this time s 11 of the Australian Citizenship Act 1948 enabled Australian citizenship by descent to be acquired when the birth of a child of a parent with Australian citizenship was registered at an Australian consulate. The applicant has taken issue with a statement in the certificate of registration of the birth of her mother which states that the parents of her mother had acquired citizenship by grant. The applicant has made a notation that this statement is not correct. However, the father of her mother was named as an infant in the certificate of naturalisation that was granted under the Naturalization Act 1903 in 1919. The mother of the applicant lost her Australian citizenship after her marriage in 1990, but regained Australian citizenship by conferral on 4 August 2011.
[1] T2 at folio 10 and 12; T5 at folio 29.
LEGISLATION
Section 16(2)(a) of the Australian Citizenship Act 2007 provides:
A person born outside Australia on or after 26 January 1949 is eligible to become an Australian citizen if:
(a)a parent of the person was an Australian citizen at the time of the birth;
…
CONSIDERATION
The issue for determination is whether the applicant satisfies s 16(2) of the Australian Citizenship Act 2007 by having a parent who was an Australian citizen at the time of her birth. There is no issue that the applicant has a parent who is now an Australian citizen. Certainly, her mother was an Australian citizen at the time of her application on 24 September 2012. However, the issue for determination is whether a parent of the applicant was an Australian citizen at the time of her birth in 1982 as required by s 16(2)(a) of the Australian Citizenship Act 2007. There is no evidence to suggest that the applicant’s father was ever an Australian citizen.
I have come to the conclusion that the mother of the applicant was not an Australian citizen at the time of her birth as required by s 16(2)(a) of the Australian Citizenship Act 2007. My reason for coming to that conclusion is that there is no provision which provides a person who is registered by descent is deemed to be an Australian citizen before they are registered. The registration of the mother of the applicant under s 11 of the Australian Citizenship Act 1948 did not have any retrospective operation.[2]
[2] Per s 11(4) Australian Citizenship Act 1948: “The applicant … becomes an Australian citizen on the day which the applicant is registered as an Australian citizen”.
I therefore consider that the applicant is not eligible for Australian citizenship under s 16(2)(a) of the Act because her mother was not an Australian citizen at the time of her birth.
The applicant has referred to the definition of Australia in s 5 of Australian Citizenship Act 1948. That definition provided: “Australia, when used in a geographic sense as including the external territories”. The applicant submitted: “The ‘territories’ until 1961 included the Union of South Africa”. If this submission is correct then the applicant would have been born in Australia and would have acquired Australian citizenship pursuant to s 10 of the Australian Citizenship Act 1948. However, this submission cannot be accepted because the Union of South Africa, which became the Republic of South Africa after it withdrew from the Commonwealth of Nations in 1961, has never at any time been an external territory of Australia.
DECISION
I affirm the decision under review.
I certify that the preceding 9 (nine) paragraphs are a true copy of the reasons for the decision herein of Dr P McDermott, RFD, Senior Member. ...........................[Sgd].............................................
Associate
Dated 20 February 2013
Heard on the Papers 13 February 2013
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