NICKY v Minister for Immigration - [2014] FCCA 2569

FEDERAL CIRCUIT COURT OF AUSTRALIA

NICKY v MINISTER FOR IMMIGRATION

[2014] FCCA 2569

Catchwords:
CITIZENSHIP – Australian Citizenship Act 1948 – Australian Citizenship Act 2007 – provisos to operation of legislative provisions deeming abandoned child to be an Australian citizen – periods of operation of the Australian Citizenship Acts.

Legislation:

Australian Citizenship Act 2007, ss.4, 11A, 12, 13, 14, 15, 37

Australian Citizenship Act 1948, ss.5, 10
Administrative Decisions (Judicial Review) Act1977, s.5
Australian Citizenship (Transitionals and Consequentials) Act 2007, item 2 of sch.2

Applicant:

NICKY

Respondent:

MINISTER FOR IMMIGRATION & BORDER PROTECTION

File Number:

SYG 1738 of 2014

Judgment of:

Judge Cameron

Hearing date:

22 September 2014

Date of Last Submission:

22 October 2014

Delivered at:

Sydney

Delivered on:

12 November 2014

REPRESENTATION

Counsel for the Applicant:

Mr L. Karp

Solicitors for the Applicant:

Alim Lim & Partners

Counsel for the Respondent:

Mr T. Reilly

Solicitors for the Respondent:

Australian Government Solicitor

ORDERS

The application be dismissed.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 1738 of 2014

NICKY

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

Respondent

REASONS FOR JUDGMENT

Introduction

On 1 April 2014 the applicant lodged an application with the Department of Immigration and Border Protection requesting evidence of Australian citizenship. The applicant claimed that he was an Australian citizen by virtue of s.14 of the Australian Citizenship Act 2007 (“2007 Act”) because he had been found abandoned as a child in Australia on 10 February 2002. On 14 April 2014 a delegate of the respondent (“Minister”) refused the applicant’s application on the basis that she was not satisfied that he was an Australian citizen. The applicant then sought an internal review of that decision and on 18 June 2014 a second ministerial delegate also refused to issue the applicant with evidence of Australian citizenship because he was not satisfied that the applicant was an Australian citizen.
On 25 June 2014 the applicant commenced this proceeding seeking relief under the Administrative Decisions (Judicial Review) Act1977 (“ADJR Act”) in respect of the second delegate’s decision. He seeks:
a)an order quashing or setting aside the second delegate’s decision;
b)an order that s.14 of the 2007 Act applies to him, or alternatively that s.5(3)(b) of the Australian Citizenship Act 1948 (“1948 Act”), as at 10 February 2002, applied to him; and
c)an order directing the Minister to give him a notice under s.37(2) of the 2007 Act stating that he is an Australian citizen, or alternatively, an order remitting the matter to the Minister to be determined according to law.
For the reasons which follow, the application will be dismissed.

Relevant legislation

Section 5(1) of the ADJR Act relevantly provides:
5 Applications for review of decisions
(1)A person who is aggrieved by a decision to which this Act applies that is made after the commencement of this Act may apply to the Federal Court or the Federal Circuit Court for an order of review in respect of the decision on any one…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading NICKY v Minister for Immigration

Details

AGLC: NICKY v Minister for Immigration [2014] FCCA 2569
Case: [2014] FCCA 2569
Decision Date: 12 November 2014

CaseChat Overview and Summary

This matter concerned an application for review under the Administrative Decisions (Judicial Review) Act 1977 (Cth) by the applicant, Nicky, against the Minister for Immigration. The dispute arose from the Minister's decision regarding Nicky's claim to Australian citizenship. The application was heard by Judge Cameron in the Federal Court.

The court was required to determine whether the Minister's decision involved an error of law, specifically in relation to the applicant's claim of Australian citizenship. This involved interpreting the provisions of both the Australian Citizenship Act 2007 (Cth) and the Australian Citizenship Act 1948 (Cth), particularly concerning the acquisition of citizenship by birth, adoption, abandonment, or incorporation of territory, and how citizenship acquired under the 1948 Act was to be treated under the 2007 Act.

The court's reasoning focused on the relevant legislative provisions. It noted that at the time the applicant claimed to have been abandoned, the 1948 Act was in force, which deemed a found abandoned child to have been born in Australia and, depending on the date of birth, to have had certain subsections of section 10 not apply. The court also considered section 37 of the 2007 Act, which allows for applications for evidence of citizenship, and the definition of "Australian citizen" in section 4 of the 2007 Act. Crucially, section 4(2) of the 2007 Act stipulated that if it was necessary to determine citizenship under the 1948 Act, that determination should be made under the 1948 Act as it was in force at the relevant time. The court applied these provisions to the facts of the applicant's case to assess the validity of his citizenship claim.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

At the time the applicant sought evidence of the Australian citizenship which he alleged he had acquired, the 2007 Act had replaced the 1948 Act. Section 37 of the 2007 Act relevantly provides:37 Evidence of Australian citizenship(1)A person may make an application to the Minister for evidence of the person’s Australian citizenship.Notice(2)The Minister may give the person a notice stating that the person is an Australian citizen at a particular time.… “Australian citizen” is defined in s.4 of the 2007 Act which provides:4 Australian citizen(1)For the purposes of this Act, Australian citizen means a person who:(a)is an Australian citizen under Division 1 or 2 of Part 2; or(b) satisfies both of the following:(i) the person was an Australian citizen under the Australian Citizenship Act 1948 immediately before the commencement day;(ii) the person has not ceased to be an Australian citizen under this Act.Citizenship under the old Act(2)If, under this Act, it is necessary to work out if a person was an Australian citizen at a time before the commencement day, work that out under the Australian Citizenship Act 1948 as in force at that time. Division 1 of pt.2 of the 2007 Act relevantly provides:Division 1 - Automatic acquisition of Australian citizenship11ASimplified outlineThe following is a simplified outline of this Division:The most common way you become an Australian citizen under this Division is by being born in Australia and by having a parent who is an Australian citizen or a permanent resident at the time of your birth.There are some other, less common, ways of becoming an Australian citizen under this Division. These cover:·citizenship by being born in Australia and by being ordinarily resident in Australia for the next 10 years: see section 12; and·citizenship by adoption: see section 13; and·citizenship for abandoned children: see section 14; and·citizenship by incorporation of territory: see section 15.12 Citizenship by birth(1)A person born in Australia is an Australian citizen if and only if:(a)a parent of the person is an Australian citizen, or a permanent resident, at the time the person is born; or(b)the person is ordinarily resident in Australia throughout the period of 10 years beginning on the day the person is born.…13 Citizenship by adoptionA person is an Australian citizen if the person is:(a)adopted under a law in force in a State or Territory; and(b)adopted by a person who is an Australian citizen at the time of the adoption or by 2 persons jointly at least one of whom is an Australian citizen at that time; and(c)present in Australia as a permanent resident at that time.14 Citizenship for abandoned childrenA person is an Australian citizen if the person is found abandoned in Australia as a child, unless and until the contrary is proved.15 Citizenship by incorporation of Territory(1) A person is an Australian citizen if:(a) any territory becomes a part of Australia; and(b)the person is included in a class of persons specified in a determination under this section.Determination(2)The Minister may, by legislative instrument, determine that specified classes of persons are Australian citizens from a specified day because of their connection with that territory.Day citizenship begins(3) The person becomes an Australian citizen on that day.When instrument takes effect(4)Despite subsection 12(2) of the Legislative Instruments Act 2003, the instrument may be expressed to take effect before the date it is registered under that Act.

Decision

Reasons for decision

Section 5(1) of the ADJR Act relevantly provides:5 Applications for review of decisions(1)A person who is aggrieved by a decision to which this Act applies that is made after the commencement of this Act may apply to the Federal Court or the Federal Circuit Court for an order of review in respect of the decision on any one or more of the following grounds:…(f)that the decision involved an error of law, whether or not the error appears on the record of the decision; … At the time of the applicant’s claimed abandonment, the 1948 Act was still in force. It relevantly provided:5 Interpretation…(3) For the purposes of this Act:…(b)a person who, when a child, was found abandoned in Australia shall, unless and until the contrary is proved, be deemed:(i) to have been born in Australia;…(iii) if born on or after 6 May 1966 and before the day on which the Australian Citizenship Amendment Act 1986 comes into operation—to have been, at the time of birth, a person to whom subsections 10(2) and (3) of this Act, as in force at that time, did not apply; …10 Citizenship by birth(1)Subject to this section, a person born in Australia after the commencement of this Act shall be an Australian citizen.(2)Subject to subsection (3), a person born in Australia after the commencement of the Australian Citizenship Amendment Act 1986 shall be an Australian citizen by virtue of that birth if and only if:(a)a parent of the person was, at the time of the person’s birth, an Australian citizen or a permanent resident; or(b)the person has, throughout the period of 10 years commencing on the day on which the person was born, been ordinarily resident in Australia.(3)Subject to subsection (5), a person shall not be an Australian citizen by virtue of this section if, at the time of the person’s birth, a parent of the person was an enemy alien and the birth occurred in a place then under occupation by the enemy.… At the time the applicant sought evidence of the Australian citizenship which he alleged he had acquired, the 2007 Act had replaced the 1948 Act. Section 37 of the 2007 Act relevantly provides:37 Evidence of Australian citizenship(1)A person may make an application to the Minister for evidence of the person’s Australian citizenship.Notice(2)The Minister may give the person a notice stating that the person is an Australian citizen at a particular time.… “Australian citizen” is defined in s.4 of the 2007 Act which provides:4 Australian citizen(1)For the purposes of this Act, Australian citizen means a person who:(a)is an Australian citizen under Division 1 or 2 of Part 2; or(b) satisfies both of the following:(i) the person was an Australian citizen under the Australian Citizenship Act 1948 immediately before the commencement day;(ii) the person has not ceased to be an Australian citizen under this Act.Citizenship under the old Act(2)If, under this Act, it is necessary to work out if a person was an Australian citizen at a time before the commencement day, work that out under the Australian Citizenship Act 1948 as in force at that time.

Ratio Decidendi

Legal Principle Established

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