Mark Cremin and Minister for Immigration and Border Protection
[2014] AATA 574
•18 August 2014
[2014] AATA 574
Division GENERAL ADMINISTRATIVE DIVISION File Number(s)
2014/1193
Re
Mark Cremin
APPLICANT
And
Minister for Immigration and Border Protection
RESPONDENT
DECISION
Tribunal Deputy President J W Constance
Date 18 August 2014 Place Sydney The decision under review, being the decision of the delegate of the Minister for Immigration and Border Protection dated 17 February 2014 refusing Dr Cremin’s application for Australian citizenship by descent, is affirmed.
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Deputy President J W Constance
Catchwords
CITIZENSHIP – Citizenship by descent – eligibility - requirement that one parent became an Australian citizen on 26 January 1949 – Applicant’s father killed during WWII – decision affirmed
Legislation
Acts Interpretation Act 1901 (Cth) s 15AA
Administrative Appeals Tribunal Act 1975 (Cth) s 34J
Australian Citizenship Act 2007 (Cth) ss 16(3), 17Cases
Re Lester and Minister for Immigration and Citizenship (2010) 114 ALD 688
Mills v Meeking (1990) 169 CLR 214REASONS FOR DECISION
Deputy President J W Constance
INTRODUCTION
In December 2013, Dr Cremin applied for Australian citizenship by descent. His father was born in Australia in 1917 and served in the Royal Australian Air Force and later, during World War II, in the Royal Air Force. Mr Cremin Snr was killed in action in 1942. At the time he was Squadron Leader of No. 66 Squadron RAF.
Dr Cremin's application for citizenship was refused on the sole ground that he did not meet the requirement in the Australian Citizenship Act 2007 (Cth) (“the Act”) that at least one of his parents became an Australian citizen on 26 January 1949.
Dr Cremin has applied to the Tribunal for a review of the decision refusing his application for citizenship. For the reasons which follow, the decision under review will be affirmed.
REVIEW WITHOUT HOLDING A HEARING
I am satisfied that it is appropriate to conduct a review of the reviewable decision without holding a hearing, as provided for by section 34J of the Administrative Appeals Tribunal Act 1975 (Cth). I am satisfied that the issues can be adequately determined in the absence of the parties and that the parties consent to the determination in their absence.
In conducting the review, I have considered:
·the documents filed by the Minister in accordance with section 37 of the Administrative Appeals Tribunal Act (exhibit 1);
·the Statement of Facts and Contentions filed by the Minister (exhibit 2);
·the statement and submissions filed by Dr Cremin on 11 July 2014 (exhibit 3).
FACTS
I am satisfied of the following facts, which are not in dispute:
·Dr Cremin was born in the United Kingdom in 1940;
·his father was born in Australia in 1917;
·his father died in 1942;
·his mother was born in the United Kingdom and never became an Australian citizen.
LEGISLATION
Subsection 16(3) of the Act provides, in part:
A person born outside Australia or New Guinea before 26 January 1949 is eligible to become an Australian citizen if:
(a)a parent of the person became an Australian citizen on 26 January 1949; and
(b)the parent was born in Australia or New Guinea or was naturalised in Australia before the persons birth …
Section 17 of the Act provides, in part:
(1) If a person makes an application under section 16, the Minister must, in 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 16(2) or (3).
(2) Subject to this section, the Minister must approve the person becoming an Australian citizen if the person is eligible to become an Australian citizen under subsection 16(2) or (3).
THE ISSUE
The only issue in dispute between the parties is whether Dr Cremin satisfies the requirement in subsection 16(3) that one of his parents became an Australian citizen on 26 January 1949.
DR CREMIN’S ARGUMENT
Dr Cremin's father was an Australian by birth as are members of his family living in Australia. Had Dr Cremin’s father been alive on 26 January 1949 he would have become an Australian citizen on that day, and Dr Cremin would now meet the requirements for Australian citizenship.
The concept of nationality is synonymous with citizenship and the “time honoured conditions of blood and residency [dictate] nationality.” [1]
[1] Dr Cremin's Submissions paras 3 & 5.
Parliament would not have intended to exclude a class of people such as Dr Cremin from citizenship based simply on whether or not a parent was alive on a particular date. To do so would be discriminatory and unreasonable. A purposive construction of the Act should be adopted in accordance with section 15AA of the Acts Interpretation Act 1901 Cth) which provides:
In interpreting a provision of an Act, the interpretation that would best achieve the purpose or object of the Act (whether or not that purpose or object is expressly stated in the Act) is to be preferred to each other interpretation.
CONSIDERATION
In order to understand the arguments in this matter, it is necessary to consider the relevance of the date of 26 January 1949.
In Re Lester and Minister for Immigration and Citizenship,[2] this Tribunal considered precisely the same issue as is before me. In that matter the Tribunal set out the legislative background of the present legislation in part, as follows:
For persons born prior to 26 January 1949, Australian citizenship was established as a concept on 26 January 1949. The then Nationality and Citizenship Act 1948 (which later became the Australian Citizenship Act 1948) (“1948 Act”) made provision for conferring Australian citizenship on persons born in Australia or with an Australian connection, who previously had been British subjects. Prior to the commencement of the 1948 Act a person in Australian was, pursuant to s 3 of the Nationalisation Act 1903 and s 5 (1) of the Nationality Act 1920 (“1920 Act”), either an alien or a British subject.[3]
[2] (2010) 114 ALD 688.
[3] (2010) 114 ALD 688, at para.4.
I agree with the proposition put in Re Lester that in enacting the 1948 legislation Parliament intended to identify three different classes of people who were, or were eligible to become, Australian citizens, namely:
(a) a class of persons who are members of the Australian community and therefore are Australian citizens;
(b) a class of persons who have sufficient links (such as descent or marriage) to other members of the Australian community to become Australian citizens; and
(c) a class of persons who are able to perform certain acts (such as residence) to qualify for a grant of Australian citizenship.[4]
[4] (2010) 114 ALD 688, at para.26.
It does seem unfair to someone in Dr Cremin's position that a person whose parent died on or before 25 January 1949 would not be eligible for Australian citizenship whereas a person in the same circumstances whose parent died on 27 January 1949 would be eligible. It may be that those drafting the 1948 legislation inadvertently overlooked the situation of those such as Dr Cremin. On the other hand Parliament may have intended to establish a clear “cut-off date” for those eligible for citizenship in this way.
Whatever the reason for the law being as it is, I must apply the law. A purposive construction may only be adopted if, having regard to the legislative purpose, there is more than one construction open, and therefore uncertainty in the ordinary meaning of the words used by Parliament. If the words used are clear it is not permissible to read words into the provisions of an Act. As Dawson J. observed in Mills v. Meeking[5] a provision such as 15AA of the Acts Interpretation Act “requires a court to construe an Act, not to rewrite it, in the light of its purposes.”
[5] (1990) 169 CLR 215, at 235.
Unfortunately for Dr Cremin the words used in subsection 16(3)(a) of the Citizenship Act are unambiguous and must be applied in accordance with their literal meaning. There is no justification for reading into the subsection word such as “or would have become an Australian citizen on 26 January 1949 had he or she been alive on that date.”
In Re Lester, the Tribunal considered in detail the relevant judgements and arguments in deciding that subsection 16(3) did not entitle a person to Australian citizenship by descent based on having a parent who would have become an Australian citizen on 26 January 1949 had he or she not died prior to that date.[6] I respectfully adopt the Tribunal’s reasoning in that matter without setting it out in full.
[6] See Re Lester (2010) 114 ALD 688, at para 20 to 33.
CONCLUSION
The decision under review, being the decision of the delegate of the Minister for Immigration and Border Protection dated 17 February 2014 refusing Dr Cremin’s application for Australian citizenship by descent, will be affirmed.
I certify that the preceding 20 (twenty) paragraphs are a true copy of the reasons for the decision herein of Deputy President J W Constance
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Associate
Dated 18 August 2014
Date(s) of hearing Hearing on the papers Date final submissions received 11 July 2014 Applicant In person Solicitors for the Respondent D Watson, Australian Government Solicitor
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