Ossendryver and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Citizenship)

[2020] AATA 5137

Ossendryver and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Citizenship) [2020] AATA 5137 (18 December 2020)

AppID:  Ossendryver and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

MatterType:    Citizenship

Division:GENERAL DIVISION

File Number:          2018/4706

Re:Arnelle Ossendryver  

APPLICANT

AndMinister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

RESPONDENT

DECISION

Tribunal:Deputy President Dr P McDermott RFD

Date:18 December 2020

Place:Brisbane

I affirm the decision under review.

.........................................................................

Deputy President Dr P McDermott RFD

CATCHWORDS

CITIZENSHIP – application for Australian citizenship by descent – refusal of application – Australian Citizenship Act 2007 (Cth) subsection 16(2) – whether a parent of the applicant was an Australian citizen at the time of the applicant’s birth – proxy marriage – decision under review affirmed

LEGISLATIVE MATERIALS

Administrative Appeals Tribunal Act 1975 (Cth)
AustralianCitizenship Act 1948 (Cth)
Australian Citizenship Act 2007 (Cth)
British Nationality Act 1730 (Imp.)
British Nationality Act 1773 (Imp.)
British Nationality and Status of Aliens Act 1914 (Imp.)
Nationality Act 1920 (Cth)
Nationality and Citizenship Act 1948 (Cth)

Revised Explanatory Memorandum to the Australian Citizenship Bill 2005 (Cth)

Statute of Westminster 1931 (Imp.)

CASE

Lappas and Department of Immigration and Multicultural Affair [1999] AATA 380

SECONDARY MATERIALS

B. H. McPherson CBE, The Reception of English Law Abroad (2007)

C. Parry, Nationality and Citizenship Laws of the Commonwealth and the Republic of Ireland (1952)

C. Parry, Plural Nationality and Citizenship with Special Reference to the Commonwealth (1953) 30 The British Year Book of International Law, 244

Dr M. Pryles AO, Australian Citizenship Law (1981)

K. Rubenstein, Australian Citizenship Law (2^nd ed, 2017)

REASONS FOR DECISION

Deputy President Dr P McDermott RFD

18 December 2020

INTRODUCTION

1. The applicant was born in South Africa in 1962. The applicant previously held South African citizenship. She is presently a citizen of the United States of America.

2. On 22 June 2017, the applicant made an application for Australian citizenship by descent.

3. On 31 July 2018, a decision was made to refuse her application for Australian citizenship.

4. The applicant has applied to the Administrative Appeals Tribunal for review of that decision.

   RELEVANT LEGISLATION: AUSTRALIAN CITIZENSHIP ACT 2007 (CTH)

5. The application for Australian citizenship by descent was made under subsection 16(2) of the Australian Citizenship Act 2007 (Cth) (“the Act"). Subsection 17(1A) of the Act provides that 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) of the Act. Subsection 16(3) of the Act has no relevance to the applicant. It remains for me to determine whether the applicant is eligible to become an Australian citizen under subsection 16(2) of the Act.

6. Section 16(2) of the Act provides:

   (2)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; and

   (b)if the parent was an Australian citizen under this Subdivision or Subdivision AA, or section 10B, 10C of 11 of the old Act (about citizenship by descent), at the time of the birth:

   (i)the parent has been present in Australia (except as an unlawful non-citizen) for a total period of at least 2 years at any time before the person made the application; or

   (ii)the person is not a national or a citizen of any country at the time the person made the application and the person has never been such a national or citizen; and

   (c)if the person is or has ever been a national or a citizen of any country, or if article 1(2)(iii) of the Stateless Persons Convention applies to the person, and the person is aged 18 or over at the time the person made the application—the Minister is satisfied that the person is of good character at the time of the Minister’s decision on the application.

   ISSUE FOR DETERMINATION

7. There is no issue that the applicant was born outside Australia on or after 26 January 1949 in terms of subsection 16(2) of the Act.

8. I must determine whether the applicant is eligible to become an Australian citizen by descent.

9. The issue for determination is whether a parent of the applicant was an Australian citizen at the time of the birth under subsection 16(2) of the Act. On her application for Australian citizenship, the applicant stated that her mother was not an Australian citizen. However, on her application the applicant stated that her father, Mr Arnold Ossendryver, was an Australian citizen at his birth. I have to determine whether her father was an Australian citizen at the time of her birth.

   FAMILY HISTORY

   Grandparents

10. Mr Leo Ossendryver was the paternal grandfather of the applicant. In her application for Australian citizenship, the applicant was not able to state the date of birth of Mr Leo Ossendryver. In her application for Australian citizenship the applicant stated that Mr Leo Ossendryver was born in Belgium. There is a passenger list from the “Asturias” which was compiled when it departed Sydney on 26 November 1946 which recorded that Mr Leo Ossendryver was from Belgium.[1] However, the reference to Mr Leo Ossendryver being from Belgium would appear to be a typographical error. A passenger list from T.S.S. Ulysses documents that Mr Leo Ossendryver was Dutch and aged 15 years of age when he arrived in Sydney on 14 January 1937.[2] On his arrival in Australia he was listed as an Alien.

    [1] Exhibit I, Tribunal Book, TB5, at p. 15.

    [2] Exhibit G.

11. There is now no issue that Mr Leo Ossendryver was born in the Netherlands in 1922 and that he was Dutch when he disembarked in Sydney. There is no record of Mr Leo Ossendryver acquiring the status of a British subject by naturalization under the Nationality Act 1920 (Cth).

12. Ms Roma Blair was the maternal grandmother of the applicant. The birth certificate of Ms Roma Blair indicates that she was born in Australia in July 1923. Ms Roma Blair would then have become a British subject by virtue of the operation of paragraph 6(1)(a) of the Nationality Act 1920 (Cth) as she was then born within His Majesty’s dominions and allegiance. The case of the applicant is that Ms Roma Blair was an Australian citizen at the time of the birth of Mr Arnold Ossendryver in 1942.[3] However, the status of Australian citizenship was only created by the Nationality and Citizenship Act 1948 (Cth) (later renamed as the AustralianCitizenship Act 1948 (Cth).

    [3] Exhibit I, Tribunal Book, TB17, at pp. 56-57.

    Proxy marriage of grandparents

13. On or about 11 July 1941, a marriage by proxy took place between Mr Leo Ossendryver, who was then working in what was then referred to as Bandoeng in the then Netherlands East Indies, and Ms Roma Blair, who was then in Sydney. In making this finding I rely upon contemporary newspaper reports which indicate that the Netherlands Vice-Consul in Sydney, in the presence of Ms Roma Blair and her mother and witnesses, officiated at the marriage. The reports indicate that the Netherlands Vice-Consul then confirmed that the marriage was recognised in the Netherlands East Indies and that the Netherlands Governor-General authorised the proxy marriage.[4] There is also a certificate of marriage that is written in Dutch that was issued in Batavia which indicates the civil status ("burgerlijke stand") of the parties to the proxy marriage.[5]

    [4] Exhibit H, Newcastle Sun, 11 July 1941; Exhibit I, Tribunal Book, TB14, Warwick Daily News, 12 July 1941.

    [5] Exhibit I, Tribunal Book, TB13, at pp. 46-47.

14. At the time of the proxy marriage the relevant citizenship legislation which was in force in Australia was the Nationality Act 1920 (Cth) and the British Nationality and Status of Aliens Act 1914 (Imp.). There is no provision in either Act which would have conferred Mr Leo Ossendryver with the status of British subject upon his marriage to a British subject.

15. The respondent has submitted that it was more likely that Ms Roma Blair had acquired Dutch nationality through her marriage to Mr Leo Ossendryver on or about 11 July 1941. The respondent has referred to the fact that the incoming passenger plane list dated 23 September 1945 of evacuees from Singapore lists Ms Roma Blair as “Dutch”. However, it would not be fair for passenger lists to be relied upon to support findings to deprive a person of British or Australian citizenship.

16. It may have been the case that the proxy marriage resulted in the cessation of her status as a British subject by virtue of the operation of subsection 10(2) of the British Nationality and Status of Aliens Act 1914 (Imp.) which provided:

    Where a woman has (whether before or after the commencement of this Act) married an alien, and was at the time of her marriage a British subject, she shall not, by reason only of her marriage, be deemed to have ceased to be a British subject unless, by reason of her marriage, she acquired the nationality of her husband.

17. The British Nationality and Status of Aliens Act 1914 (Imp.) introduced a British common code intended for implementation throughout the dominions.[6] This 1914 Imperial Act was in force in Australia at the time as it had not been abrogated by the Commonwealth Parliament after the passage of the Statute of Westminster 1931 (Imp.).[7] The Nationality Act 1920 (Cth) adopted the scheme of the Imperial Act.[8] However, there was no evidence before the Tribunal as to whether under Dutch law, the proxy marriage operated to confer Dutch nationality upon Ms Roma Blair. Certainly, under section 19 of the Nationality Act 1920 (Cth) there is the recognition that a woman who, having been a British subject, may, in consequence of her marriage, become an alien. However, in the absence of any evidence that under Dutch law the proxy marriage operated to confer Dutch nationality upon Ms Roma Blair, it would not be fair to make a finding that the proxy marriage had resulted in the loss of status of Ms Roma Blair as a British subject. I am also conscious that at the time of the proxy marriage Ms Roma Blair was a minor.

    [6] K. Rubenstein, Australian Citizenship Law (2^nd ed, 2017), 71.

    [7] M. Pryles, Australian Citizenship Law (1981), 23.

    [8] C. Parry, Nationality and Citizenship Laws of the Commonwealth and the Republic of Ireland (1952), 532; K. Rubenstein, Australian Citizenship Law (2^nd ed, 2017), 71.

18. Even if a marriage to an alien had resulted in a woman who was a British subject having acquired the nationality of her husband, it was still possible for the woman to make a declaration that she desires to retain the rights of a British subject.[9] After the commencement of the Nationality and Citizenship Act 1948 (Cth), Ms Roma Blair held an Australian passport. On 15 December 1952, she entered Australia on an Australian passport.[10] In a letter dated 30 December 1957 to the directorship of Civilian Internees, Ms Roma Blair indicated that she never changed her Australian Citizenship. Certainly, there is no evidence that at any time Ms Roma Blair had renounced her status as a British subject.  After she entered Australia in 1952, Ms Roma Blair lived in Australia until she passed away in November 2013 at the age of 90.

    [9] Nationality Act 1920 (Cth), section 18A (as inserted by Act No. 62 of 1936); section 18B (as inserted by Act No. 9 of 1946). See also, C. Parry, Nationality and Citizenship Laws of the Commonwealth and the Republic of Ireland (1952), 532-533.

    [10] Exhibit I, Tribunal Book, TB12, at p. 41.

    Parent

19. I have previously mentioned that on her on her application for Australian citizenship the applicant had stated that at the time of her birth her father, Mr Arnold Ossendryver, was an Australian citizen. The applicant gave evidence that Mr Arnold Ossendryver was born in July 1942 in a prisoner-of-war camp in Java in the Netherlands East Indies and that Mr Arnold Ossendryver was the son of Mr Leo Ossendryver and Ms Roma Blair.  The applicant stated that no birth certificate for Mr Arnold Ossendryver was issued in the camps. I accept that what the applicant has stated would have been the case having regard to the fact that it was not plausible that the colonial administration in the Netherlands East Indies was then operating. Having regard to the evidence of the applicant, which I accept as credible, I find that Mr Arnold Ossendryver was born in July 1942 in a prisoner-of-war camp in Java in the Netherlands East Indies.

20. Since the eighteenth century, children born out of the dominions to a father, but not a mother, who was a natural born subject, would be British subjects by descent.[11] This position was maintained in the Nationality Act 1920 (Cth), which in paragraph 6(1)(b), provided that a person born out of His Majesty's dominions, and whose father was a British subject at the time of that person's birth, shall be deemed to be a natural-born British subject. This provision, which mirrored subsection 1(1) of the British Nationality and Status of Aliens Act 1914 (Imp.), did not operate to confer upon Mr Arnold Ossendryver the status of a British subject because his father was not a British subject. There is no cogent evidence before me that Mr Leo Ossendryver was a British subject in July 1942 when Mr Arnold Ossendryver was born. Therefore, his son could not have acquired the status of a British subject under section 6 of the Nationality Act 1920 (Cth). The Nationality Act 1920 (Cth) limited citizenship by descent to those persons whose father was a British subject.[12]  Even if Ms Roma Blair had been a British subject after her proxy marriage (which I assume was the case), her son did not acquire the status of a British subject by descent.

    [11] British Nationality Act 1730 (Imp.); 4 Geo 2, c 21, s 1; British Nationality Act 1773 (Imp.); 13 Geo 3, c 21, s 1. See also B. H. McPherson CBE, The Reception of English Law Abroad (2007), 182.

    [12] K. Rubenstein, Australian Citizenship Law (2^nd ed, 2017), 72.

21. When the then Master Arnold Ossendryver arrived in Australia on 23 September 1945 on an army plane with other evacuees from the prisoner of war camp, he was listed as being Dutch.[13] When the then Master Arnold Ossendryver departed Australia on 26 November 1946 he was also listed on the passenger list as being Dutch.[14] There is no cogent evidence that indicated that Mr Arnold Ossendryver was ever a British subject.

    [13] Exhibit I, Tribunal Book, TB11, at pp. 36-38.

    [14] Exhibit I, Tribunal Book, TB5, at p. 14.

22. On 6 May 2018, the applicant stated that she had assumed that her father acquired Australian citizenship under the Nationality and Citizenship Act 1948 (Cth).[15] However, in giving evidence before the Tribunal the applicant quite properly stated that she does not hold any documents which show that her father was an Australian citizen. There is no cogent evidence which would enable me to conclude that Mr Arnold Ossendryver had ever held Australian citizenship.  The documentary evidence before me establishes that Mr Arnold Ossendryver had arrived in Australia on 23 September 1945[16] and departed from Australia on 26 November 1946 when he left for South Africa on the “Asturias”. After Mr Arnold Ossendryver left Australia in 1946, there is no record of him returning to Australia until 17 December 1987 when he entered Australia with a South African passport.[17]

    [15] Exhibit A, T-Documents, T8, at p. 110.

    [16] Exhibit I, Tribunal Book, TB11.

    [17] Exhibit I, Tribunal Book, TB19, at p. 203.

23. Mr Arnold Ossendryver was not in Australia at the time of the commencement of the Nationality and Citizenship Act 1948 (Cth) on 26 January 1949. He could not then acquire Australian citizenship under the transitional provision of section 25 of the Nationality and Citizenship Act 1948 (Cth). His circumstances did not satisfy subsection 25(1) of that Act because there is no evidence that he was a British subject immediately prior to the commencement of the Nationality and Citizenship Act 1948 (Cth). In addition, he was not, immediately prior to the commencement of that Act, ordinarily resident in Australia and/or New Guinea for a period of at least five years. Mr Arnold Ossendryver departed Australia in 1945 and did not return until 1987. The circumstances of Mr Arnold Ossendryver did not satisfy subsection 25(3) of that Act which apply to a person who was born outside of Australia and New Guinea; there is no evidence that he was a British subject immediately prior to the commencement of the Act, and his father was not a person to whom paragraphs (a), (b) and (c) of subsection 25(1) applied at the date of commencement of that Act.

24. For the sake of completeness, the Australian “Arnold Ossendryver" who is on the passenger list on the “Sarpedon”, which departed Sydney, Australia on 18 April 1946, is not the father of the applicant as he was then 7 years old and he travelled with his parents, Mr Morice Ossendryver and Ms Noeline Ossendryver.[18]

    [18] Exhibit I, Tribunal Book, TB5.

    CONCLUSION

25. While the applicant has provided evidence which indicates that she satisfies the requirement under paragraph 16(3)(c) of the Act to be of good character,[19] her application for Australian citizenship by descent cannot be approved under section 17 of the Act because the applicant did not have a parent who was an Australian citizen at the time of her birth. It has been necessary for me in determining this application to consider the application of the Nationality Act 1920 (Cth). The provisions of this Act still remain relevant with respect to applications for Australian citizenship by descent,[20] and have been previously considered by this Tribunal in determining applications for Australian citizenship by descent.[21]

    [19] Exhibit A, T-Documents, T9.

    [20] K. Rubenstein, Australian Citizenship Law (2^nd ed, 2017), 72.

    [21] Lappas and Department of Immigration and Multicultural Affair [1999] AATA 380.

26. The applicant has raised whether the son born to Ms Roma Blair would be an Australian citizen if she was not married at the time of the birth of that son. Certainly it would appear that, if Mr Arnold Ossendryver had been born out of wedlock after the commencement of the Nationality and Citizenship Act 1948 (Cth) on 26 January 1949, he would be an Australian citizen if his mother was an Australian citizen and the birth was registered in accordance with paragraph 11(1)(b) of that Act.[22] However, Mr Arnold Ossendryver was born before the commencement of the Nationality and Citizenship Act 1948 (Cth) and there was no basis under the Nationality Act 1920 (Cth) or the British Nationality and Status of Aliens Act 1914 (Imp.) for him to acquire the status of a British subject. Writing in 1951, Parry commented that Australian citizenship did not then descend automatically even to the first generation born outside Australia.[23]

    [22] M. Pryles, Australian Citizenship Law (1981), 72-73. See also, C. Parry, Plural Nationality and Citizenship with Special Reference to the Commonwealth (1953) 30 The British Year Book of International Law, 244, 286.

    [23]C. Parry, Plural Nationality and Citizenship with Special Reference to the Commonwealth (1953) 30 The British Year Book of International Law, 244, 286.

27. The applicant has also raised whether the respondent has a discretionary power to approve an application for citizenship. Dr Pryles AO has explained that under subsection 14(8) of the AustralianCitizenship Act 1948 (Cth) a “wide power of dispensation” was conferred upon the Minister which applied to persons who married an Australian citizen or who had formerly possessed Australian citizenship.[24]

    [24] M. Pryles, Australian Citizenship Law (1981), 72-73.

1. Australian citizenship law does not now confer any residuary discretion upon the Minister to approve an application where the application does not meet the express requirements of the Act. No such power of dispensation is conferred upon the Minister under the Act. There is a clear intention on the part of Parliament that the Minister has no authority to approve a person born overseas becoming an Australian citizen by descent unless that person has a parent who is an Australian citizen at the time of the birth of the applicant for Australian citizenship. The explanatory memorandum to the Australian Citizenship Bill 2005 (Cth), which was issued during the passage of the Act, referred to amendments to achieve the following:

   In addition, there were amendments to achieve the following: […]

   -    Explicitly state that the Minister must not approve a person becoming an Australian citizen unless the person is eligible to be so approved;

   -    Make subclause 19(2) a stand alone provision (subclause 19(2) makes it absolutely clear that a person born overseas is never taken to be a citizen unless they had an Australian citizen parent at the time of their birth); and[…][25]

   [25] Revised Explanatory Memorandum to the Australian Citizenship Bill 2005 (Cth), p. 5.

2. I wish to express my appreciation to the applicant and the respondent for endeavouring to locate any relevant documentation to assist the Tribunal in the determination of this complex application.

   DECISION

3. I affirm the decision under review.

I certify that the preceding 30 (Thirty) paragraphs are a true copy of the reasons for the decision herein of Deputy President Dr P McDermott RFD

…………………………………………..

Associate

Dated: 18 December 2020

Date of Hearing:	13 November 2019
Final Submission Received:	12 June 2020
Advocate for the Applicant:	Ms Olivia Rothschild
Solicitor for the Respondent:	Ms Deborah Mak, Clayton Utz