Pillinger and Minister for Immigration and Multicultural Affairs
[2000] AATA 462
•9 June 2000
DECISION AND REASONS FOR DECISION [2000] AATA 462
ADMINISTRATIVE APPEALS TRIBUNAL )
) No N1999/1601
GENERAL ADMINISTRATIVE DIVISION )
Re CLIVE PILLINGER
Applicant
And MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
Respondent
DECISION
Tribunal Senior Member Ettinger
Date9 June 2000
PlaceSydney
Decision The Tribunal affirms the decision under review.
..............................................
Ms G Ettinger
Senior Member
CATCHWORDS
Citizenship - refusal of application for Australian citizenship - applicant falls outside terms of section - no discretion - decision affirmed.
Australian Citizenship Act 1948 s 10C, 11 & 13
Nationality and Citizenship Act 1948 s 25
Stenberg and Department of Immigration and Ethnic Affairs (AAT 9817, 4 November 1994)
Colin Edwards II and Minister for Immigration and Multicultural Affairs (AAT 11140, 9 August 1996)
Re Mocatta and Department of Immigration and Ethnic Affairs (1995) 38 ALD 665
REASONS FOR DECISION
9 June 2000 Senior Member Ettinger
BACKGROUND
The applicant, Mr Clive Pillinger sought review of a decision of the Department of Immigration and Multicultural Affairs ("the Department") of 2 September 1999 (T12) which refused registration of his application for Australian citizenship by descent because he did not meet the requirements of section 10C(4)(c)(i) of the Australian Citizenship Act 1948 ("Citizenship Act"). He was notified by letter of the Australian High Commission in London dated 27 September 1999.
The Department provided a Statement of Reasons dated 18 November 1999 for the decision of 2 September 1999 to refuse Mr Pillinger registration as an Australian citizen by descent (T2/30).
The matter came before the Administrative Appeals Tribunal ("the Tribunal") by way of appeal pursuant to section 52A of the Citizenship Act. As Mr Pillinger lives in England, and both parties consented, the Tribunal agreed that the matter could proceed on the papers pursuant to section 34B of the Administrative Appeals Tribunal Act 1975 ("AAT Act"), and without the taking of oral evidence. Both parties were given the opportunity and a timetable for the making of written submissions, all of which have been taken into account in the decision making of the Tribunal. Mr Pillinger also wrote many e-mail messages pertaining to his situation, copies of which were also sent to the respondent. Several of these were received after the matter had closed and do not form part of the material before me. I have however perused them, and find that none of the e-mail messages which were received after the closing date and which cannot be taken into account in making my decision, would in any way either assist or prejudice Mr Pillinger's case for review.
ISSUE BEFORE THE TRIBUNALThe issue before the Tribunal was whether the applicant could be registered as an Australian citizen by descent pursuant to section 10C of the Citizenship Act.
LEGISLATIVE FRAMEWORKThe relevant legislation in this matter is the Australian Citizenship Act 1948 ("Citizenship Act"), in particular section 10C. Section 10C of the Citizenship Act, which was inserted into the Citizenship Act by the Australian Citizenship Amendment Act 1991, commencing on 15 January 1992, deals with provisions relating to eligibility to be registered as an Australian citizen by descent. Section 10C(4) provides as follows:
"Citizenship by descent for a person over 18 years old
10C.
…..
(4) The Minister must register, in the prescribed manner, an applicant for registration under this section if:(a) a natural parent of the applicant was an Australian citizen at the time of the birth of the applicant; and
(b) that parent:
(i)is an Australian citizen at the time an application under this section is made; or
(ii)is dead and at the time of his or her death was an Australian citizen; and
(c) the applicant:
(i)was born outside Australia on or after 26 January 1949; and
(ii)is aged 18 years or over on the day on which this section commences; and
(iii) failed for an acceptable reason to become registered as an Australian citizen under:
(A) section 10B; or
(B) section 11 of this Act as in force at any time before the commencement of section 10B; and
(d) the Minister is satisfied that the applicant is of good character.
Note: "acceptable reason" is defined in subsection (5)."
I also considered section 11 of the Citizenship Act which follows:
"Citizenship by descent through mother
11. (1) A person born outside Australia or New Guinea before 26 January 1949 may, within 5 years after the commencement of this section, apply to the Minister for his or her registration under this section as an Australian citizen if the person's natural mother became an Australian citizen on 26 January 1949 and, before that day:
(a) was born in Australia or New Guinea; or
(b) was naturalised in Australia.(2) The application may include any natural child of the applicant, regardless of the child's age.
(2A) The application must be in accordance with the approved form.(3) The Minister must register, in the prescribed manner, the applicant as an Australian citizen where the Minister is satisfied that the applicant:
(a) was present in Australia for any time before 1 May 1987; and
(b) is of good character.(4) The applicant, and any natural child of the applicant included in the application, becomes an Australian citizen on the day on which the applicant is registered as an Australian citizen.
(5) If the Minister makes a decision under subsection (3) and the applicant is not to be registered as an Australian citizen, the Minister must cause to be served on the applicant, either personally or by post, a notice in writing setting out that decision.
(6) A notice served on an applicant under subsection (5) must include:
(a) reasons for the decision; and(b)notification of the applicant's entitlement to apply for review of the decision under section 52A."
EVIDENCE BEFORE THE TRIBUNAL
I had before me before documents ("the T-documents"), lodged pursuant to section 37 of the AAT Act, and correspondence from the applicant and the Department.
I noted that the applicant, Mr Clive Pillinger, was born in England on 12 April 1945. His natural mother was born in Australia on 29 November 1911 and acquired Australian citizenship on 26 January 1949 pursuant to section 25 of the Nationality and Citizenship Act 1948. The applicant lodged an application for registration of Australian citizenship by descent pursuant to section 10C of the Citizenship Act, which was received by the Australian High Commission, Migration Sub-Registry in London on 18 May 1999. There was no dispute about these facts and I accepted them.
A delegate of the Department refused Mr Pillinger's application on 2 September 1999 (T12). The delegate determined that because the applicant, was born on 12 April 1945, that is, before 26 January 1949, he did not fulfil the requirements for registration of Australian citizenship pursuant to section 10C(4)(c)(i) of the Citizenship Act.
SUBMISSIONS AND CONCLUSIONSI have to take into account the evidence, submissions, legislation and case law to make the correct and preferable decision regarding whether Mr Pillinger can be granted Australian citizenship pursuant to this application before me.
In coming to a decision, I acknowledge Mr Pillinger's emotional connection with Australia, the years he spent here, and his wish, expressed many times in correspondence throughout the T-documents and his e-mail messages, to become an Australian citizen. Indeed he has argued that he should have been told about the time limitations involved in applying when he attended at Australia House in London on 10 February 1993. He stated in his submissions made by e-mail, dated 28 March 2000 as follows:
"When I presented myself at Australia House – London I was in the five year period in which citizenship was available to me – I was unaware and by actually standing in front of departmental representative and asking for the relevant document to travel to Australia I was putting myself in their hands as to what advice and which document they made available – instead of giving me a visa application form they should have given me form 118 (and an important question that the department cannot answer is – was that form amended during those five years to clearly show my entitlement?). After all – I am presenting myself to them for a check as to whether they will allow me in – they have all my documents – my domicile in Australia 1968 – 1970 – my tax records – my previous applications – and even a letter from my friend Gwen …. Which they retrieved for this appeal and clearly states my position and that my mother is Australian!
Therefore I content [sic] that when I presented myself to Australia house on 10 February 1993 it was in fact yet another application to give me the relevant information and the relevant documents – I was at their mercy in that they had all the information and I had to rely on their judgement – and when I entered Australia that same year I could have, and Should have entered on my first Australian Passport! – After all – The special provision was supposed to redress a discriminatory act – but that act did not even require me to register (If my Father and not my Mother had been Australian) – merely the fact of entering Australia would have made me a Citizen automatically – Well I entered Australia in 1968 – 1988 – 1991 – 1993 (During that period when I could register as a Citizen) and 1996 – and I was not afforded that same entitlement – so the special provision was different in many ways to the original act and I say that in no way could it provide adequate and equal means of redress and therefore was in itself discriminatory! – Information is not given freely but has to be extracted – and how can one ask for something they are entitled to if they are not made aware of that entitlement?"I also acknowledge that Mr Pillinger has lived in Australia and that he has friends who have accordingly provided testimonials. These appear at T1/7–28.
As noted earlier in these reasons, Mr Pillinger wrote many e-mail messages after the evidence taken for purposes of this appeal had closed. He was given further opportunities of submitting whatever he wished and drawing further material to the attention of the Tribunal. Mr Pillinger also made submissions well after the final closing date and these have not been taken into account in my decision making. I note that in some of these, Mr Pillinger argued against what is quoted in paragraph 11. I note simply for the sake of completeness that after the close of submissions on 7 April 2000, the applicant sent the Tribunal two "retractions" of statements he had made in his previous submissions. Retraction No. 1 is as follows:
"I have been reading through my submissions and regret using the phrase – "The more I read about the citizenship act – the more I consider it flawed and prejudiced against women – and each attempt to put things right only results in more injustice" –I realise the minister has a very difficult job and I am sure all the legislation was made with very careful consideration and that ideas and ideals change with time."
Retraction No. 2 read as follows:
"Concerning the wrong information I was given from Australia House – London during the 5 year period – the ombudsman suggested that as the event was so long ago things are not clear in ones memory – I have to partly accept this statement because although I KNOW my thoughts at the time – that I DID ask the question and I DID receive the answer I quoted – I do have a small doubt that I may have asked the question of Austravel – I have booked all my Australian travel arrangements with them and regard them as OZ experts – being largely manned by Australians – I have enquired and although non-one is there from that period (1993-4) – They insisted they would not have given that information. - there would have been no-one else I would have trusted to approach on the subject except OZ House -–I have tried to get print outs of my telephone calls in that period (had there been one to Australia House then It would only have been on that subject – but they informed me that they cannot retrieve information that far back. Therefore – although I have no doubt that I asked the question and received the answer I quoted – I cannot rely on this submission for the reason just given."
The above have been reproduced for the sake of completeness only and have not in any way influenced my decision or prejudiced Mr Pillinger's situation.
In coming to a decision, I noted that the Department did not dispute that Mr Pillinger was born in England on 12 April 1945, or that Mr Pillinger's natural mother was born in Western Australia on 29 November 1911 and became an Australian citizen on 26 January 1949. The respondent contended that the applicant met the requirements of subsection 11(1) of the Citizenship Act, except for the requirement to apply for registration within the required five year period.
I turned to consider section 10C(4)(a) of the Citizenship Act and found that Mr Pillinger met the requirements of section 10C(4)(a) because his natural mother was an Australian citizen at the time of his birth. He also met the requirements of section 10C(4)(b)(ii) of the Act because his natural mother was an Australian citizen at the time of her death.
However I noted that the applicant did not meet the requirement of section 10C(4)(c)(i) as it requires that the applicant be born outside Australia on or after 26 January 1949. The applicant was however born on 12 April 1945 (Section10C(4)(ii)).
I have no discretion pursuant to section 10C(4) of the Citizenship Act that would alleviate the mandatory requirements of section 10C. I am mindful of the decision of Deputy President McMahon in the case of Stenberg and Department of Immigration and Ethnic Affairs (AAT 9817, 4 November 1994), a similar case where the applicant's situation fell outside the terms of section 10C of the Citizenship Act. Deputy President McMahon in Stenberg (supra) stated as follows:
"7. There is no discretion apparent in the relevant sub-section. Indeed the Minister is under an obligation to register a person if the pre-conditions of this section have been complied with. If they have not been complied with, there is no room in terms of the section for a consideration of reasons or for a consideration of surrounding circumstances. An applicant must be born within the relevant time frame in order to succeed.
8. In effect, this is a sunset clause, no doubt enacted to rectify what appeared to be an anomaly. It is designed to preserve the rights of certain persons who claim to be entitled to citizenship by descent, but discourages future applications of this nature…"In the matter of Colin Edwards II and Minister for Immigration and Multicultural Affairs (AAT 11140, 9 August 1996) Deputy President Chappell noted the judgement of Senior Member Beddoe in Re Mocatta and Department of Immigration and Ethnic Affairs (1995) 38 ALD 665 who stated at page 667 as follows in regard to a similar matter:
"There is no discretion allowed in this matter and the legislation is clear in its effect. As comment only, it would be seen that this is an arbitrary result and might be an unfortunate outcome."
Further Deputy President Chappell in Colin Edwards II (supra) stated as follows:
"This Tribunal agrees that the section produces what can only be described as an arbitrary and unfortunate result."
I concur with Deputy President Chappell that the section in question produces an arbitrary and unfortunate result. However, I have reviewed the relevant legislation with regard to the applicant's case and found that the applicant did not fulfil the mandatory requirements pursuant to section 10C of the Citizenship Act.
I then turned to section 11 and noted that all the requirements of subsection 11(1) were satisfied except for the requirement to apply for registration within the designated 5 year period. I noted that the subsection commenced on 18 June 1991. This meant that the 5 year period expired on 17 June 1996. As subsection 11(1) of the Citizenship Act commenced on 18 June 1991, the five year window expired on 17 June 1996. As Mr Pillinger made his application for registration for Australian citizenship by descent on 18 May 1999 he does not meet the requirements of subsection 11(1) of the Citizenship Act.
I note that Mr Pillinger has available to him the general provisions of section 13 of the Citizenship Act with regard to obtaining a grant of Australian citizenship. Section 13 of the Act has requirements based on residency that must be fulfilled before citizenship may be acquired. He may be able to apply at a later date.
DECISIONThe Tribunal affirms the decision under review.
I certify that the 24 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member Ettinger
Signed: .....................................................................................
AssociateDate of Decision 9 June 2000
Date of closing submissions 7 April 2000
Counsel for the Applicant N/A
Solicitor for the Applicant self-represented
Counsel for the Respondent N/A
Solicitor for the Respondent Ms J Taverner
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