Ralfe and Minister for Immigration and Border Protection (Citizenship)

[2016] AATA 898

Ralfe and Minister for Immigration and Border Protection (Citizenship) [2016] AATA  898 (14 November 2016)

Division	GENERAL DIVISION
File Number	2016/0131
Re	Kate Ralfe
APPLICANT
And	Minister for Immigration and Border Protection
RESPONDENT

DECISION

Tribunal	Member D K Grigg
Date	14 November 2016
Place	Brisbane

The Tribunal affirms the decision under review.

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Member D K Grigg

CATCHWORDS

CITIZENSHIP – citizenship by descent – applicant’s parents are not Australian citizens at time of her birth – decision under review affirmed

LEGISLATION

Australian Citizenship Act 2007 (Cth)

Australian Citizenship Act 1948 (Cth)

Acts Interpretation Act 1901 (Cth)

CASES

Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634
Kitchen Xchange v Formacon Building Services [2014] NSWSC 1602
Military Rehabilitation and Compensation Commission v May [2016] HCA 19
Nominal Defendant v GLG Australia Pty Ltd [2006] HCA 11; (2006) 228 CLR 529
Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355
Varverakis v Police [2003] SASC 20

SECONDARY MATERIALS

Australian Citizenship Instructions

Citizenship Policy (2016, Cth)

Explanatory Memorandum to the Australian Citizenship Bill 2006

REASONS FOR DECISION

Member D K Grigg

14 November 2016

INTRODUCTION

1. Dr Ralfe applied for Australian citizenship pursuant to section 16 of the Australian Citizenship Act 2007 (“the Act”) on 10 August 2015.[1] However, on 3 December 2015 the Department of Immigration and Border Protection (“DIBP”) advised Dr Ralfe that she did not meet the requirements under the Act because her parents were not Australian citizens at the time of her birth.[2]

   [1]Exhibit 1, T Documents, T4, pages 8-16, Application for citizenship by descent dated 10 August 2015.

   [2]Exhibit 1, T Documents, T8, pages 66-74, Letter from Department of Immigration and Border Protection to Dr Ralfe dated 3 December 2015.

2. Dr Ralfe has sought a review of the DIBP’s decision by this Tribunal.[3]

   [3]           Exhibit 1, T Documents, T2, pages 3-6, Application for Review of Decision dated 30 December 2015.

   ISSUES FOR DETERMINATION

3. The issue for determination is whether or not Dr Ralfe is entitled to become an Australian citizen. It is not in contention that Dr Ralfe’s parents were not Australian citizens at the time of her birth.

   LEGISLATIVE REQUIREMENTS

4. Pursuant to section 17(1) of the Act the Minister must approve or refuse an application to become an Australian citizen under section 16. However, the Minister “must not approve” an applicant becoming an Australian citizen “unless the person is eligible to become an Australian citizen under subsection 16(2) or (3)”: section 17(1A). Section 16(3) is not relevant here because Dr Ralfe was born after 26 January 1949.

5. Dr Ralfe was born in South Africa.[4] In order for Dr Ralfe to be eligible to become an Australian citizen, one of the requirements is that one of her parents must have been an Australian citizen at the time of her birth: section 16(2)(a) of the Act. If that requirement is not satisfied, then, section 17(1A) provides that the Minister “must not approve” the application for Australian citizenship.

   [4]           Exhibit 1, T Documents, T5(b), page 18, Applicant’s Birth Certificate (copy).

   DR RALFE’S PARENTS WERE NOT AUSTRALIAN CITIZENS AT THE TIME OF HER BIRTH: SECTION 16(2)(a)

6. Dr Ralfe’s grandmother was an Australian citizen by birth.[5] In the 1940s Dr Ralfe’s grandmother went to live in South Africa and subsequently married there.[6] In or around 1959, her grandmother became a South African citizen and no longer held Australian citizenship. Dr Ralfe’s mother was born in South Africa in 1957.[7]

   [5]           Exhibit 1, T Documents, T7(j), page 39, Birth Certificate of Joyce Mellor (copy).

   [6]           Exhibit 1, T Documents, T7(c), pages 29-30, Statement of Beatrice Shirley Wallis dated 10 August

   2015.

   [7]Exhibit 1, T Documents, T7(d), page 31, Birth Certificate of Beatrice Shirley Smuts (now Wallis) (copy).

7. Dr Ralfe says that her grandmother, who is now deceased, told her that she went to the Australian High Commission in South Africa to reapply for Australian citizenship sometime in the 1980s but was refused in error.[8] Unfortunately, despite Dr Ralfe’s enquiries, there are no records or corroborating evidence of this purported error. In or around 1993, Dr Ralfe says her grandmother then travelled to Australia and reapplied for Australian citizenship. Dr Ralfe says her grandmother was told that her previous application in South Africa had been erroneously refused.[9] On 27 July 1993 Dr Ralfe’s grandmother had her Australian citizenship reinstated.[10] After that, in 1994, Dr Ralfe’s mother was also able to successfully apply for Australian citizenship.

   [8]           See also Exhibit 1, T Documents, T7(c), pages 29-30, Statement of Beatrice Shirley Wallis dated 10

   August 2015.

   [9]See Exhibit 1, T Documents, T7(c), pages 29-30, Statement of Beatrice Shirley Wallis dated 10 August 2015.

   [10]          Exhibit 1, T Documents, T7(l), page 41, Australian Citizenship Certificate of Joyce Margaret Smuts

   dated 27 July 1993.

8. Dr Ralfe’s grandmother lost her Australian citizenship sometime after moving to South Africa and in 1993 it was resumed. There is no evidence as to why this occurred, although I note Dr Ralfe’s submission that because of section 17 of the Australian Citizenship Act 1948 (Cth) (“1948 Act”) it could not have happened because of her marriage. Section 4(2) of the Act provides that if it is necessary to determine whether or not a person was an Australian citizen at a time before the commencement day, work that out under the 1948 Act as in force at that time.

9. Section 17 of the 1948 Act provided, relevantly, that:

   An Australian citizen…who…whilst outside Australia…, by some voluntary and formal act, other than marriage, acquires the nationality or citizenship of a country other than Australia, shall thereupon cease to be an Australian citizen.

10. The only logical conclusion that be drawn from this is that Dr Ralfe’s grandmother acquired citizenship of South Africa “by some voluntary and formal act”.

11. As argued in Dr Ralfe’s submission before me, but for the error by the Australian High Commission in the 1980s, her grandmother would have had her Australian citizenship reinstated before her birth and her mother would then also have been able to successfully apply for Australian citizenship before she was born. Dr Ralfe says as a result she would then have qualified for Australian citizenship under section 16(2)(a) of the Act.

12. At the hearing the DIBP referred me to extracts from the Australian Citizenship Instructions and Citizenship Policy which is used by the DIBP in interpreting and applying the Act. The Tribunal is not bound to apply these documents but it may, and it should, apply them in exercising its discretion unless it is unlawful or “tends to produce an unjust decision”.[11]

    [11]          Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634, at 645.

13. The DIBP submits that Dr Ralfe does not meet the requirements of section 16(2)(a) of the Act and that whether the Australian High Commission made an error or not in relation to her grandmother’s application for reinstatement of citizenship is irrelevant.[12]

    [12]          Exhibit 2, Respondent’s Statement of Facts, Issues and Contentions dated 8 April 2016, paras 16-18.

    Is there any discretion to be exercised in the application of sections 16(2) and 17(1A) of the Act?

14. The Respondent submits that section 16(2)(a) of the Act is clear in its terms and there is no discretion to be exercised.[13]

    [13]          Exhibit 2, Respondent’s Statement of Facts, Issues and Contentions dated 8 April 2016, para 19.

15. Dr Ralfe submitted that in applying section 17(1A) of the Act, one can take into account extraneous circumstances, such as the purported error of the Australian High Commission in South Africa in refusing to grant Australian citizenship to the Applicant’s grandmother in the 1980s. Dr Ralfe says in effect that the words “must not” in section 17(1A) do not impose a mandatory obligation.

16. The question is to what extent do the words “must not” approve in section 17(1A) require a mandatory obligation.

17. Section 15AA of the Acts Interpretation Act 1901 (Cth) 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.

18. In interpreting a section of an Act, “[t]he words of the statute, not non-statutory words seeking to explain them, have paramount significance”: Nominal Defendant v GLG Australia Pty Ltd [2006] HCA 11; (2006) 228 CLR 529 at [22].

19. The High Court discussed the primary objective of statutory construction in Project Blue Sky Inc v Australian Broadcasting Authority(1998) 194 CLR 355 at [69]-[70] (per McHugh, Gummow, Kirby and Hayne JJ):

    [69] The primary object of statutory construction is to construe the relevant provision so that it is consistent with the language and purpose of all the provisions of the statute. The meaning of the provision must be determined “by reference to the language of the instrument viewed as a whole.” In Commissioner for Railways (NSW) v Agalianos, Dixon CJ pointed out that “the context, the general purpose and policy of a provision and its consistency and fairness are surer guides to its meaning than the logic with which it is constructed“. Thus, the process of construction must always begin by examining the context of the provision that is being construed.

    [70] A legislative instrument must be construed on the prima facie basis that its provisions are intended to give effect to harmonious goals…

    [71] Furthermore, a court construing a statutory provision must strive to give meaning to every word of the provision…

20. More recently, the High Court in Military Rehabilitation and Compensation Commission v May [2016] HCA 19 said (at [52]):

    The language of judgments should not "be applied literally to facts without further consideration of what is conveyed by the reasoning" in the cases from which it is derived, or without regard to the text and scheme of the Act.[14] [my emphasis]

    [14]Citing Comcare v PVYW (2013) 250 CLR 246 at 256 [15]; [2013] HCA 41; See also at 256 [16] quoting Brennan v Comcare (1994) 50 FCR 555 at 572.

21. McDougall J in Kitchen Xchange v Formacon Building Services [2014] NSWSC 1602 discussed the interpretation of “must not” in another statute:

    [36]...The words “must not” are generally taken to indicate prohibition. That appears from a number of cases, many of which were usefully summarised in the judgment of Lucev FM in Birch v Wesco Electrics (1966) Pty Ltd (2012) 257 FLR 237 at [29] and following, through to [56]...

    [37] Amongst the cases to which Lucev FM referred was the decision of the Court of Appeal of the Supreme Court of Victoria in Halwood Corporation Ltd v Roads Corporation [1998] 2 VR 439.

    [38] In this case Tadgell JA, with whom Brooking JA agreed, dealt at length (and not entirely in approving terms) with the legislative use of “must” and “must not” to indicate respectively a requirement to do something and a prohibition on doing something. His Honour said, after referring to authorities ranging from the Book of Genesis through Punch to the decision of JD Phillips J in Brygel v Stewart-Thornton [1992] 2 VR 387, that the modal verb “must not” might not necessarily indicate prohibition unless some form of personal prohibition were intended.

    [39] In the present case, it seems to me, personal prohibition is exactly what is intended by s 13(7).

    [40] There are numerous cases observing that “must” is a word of absolute obligation. See, for example, Williams J in Posner v Collector for Interstate Destitute Persons (Vic); (1946) 74 CLR 461 at 590 — one of the cases cited by Lucev FM in Birch.

22. In Varverakis v Police [2003] SASC 20 the Court also considered whether the word “must” in a Traffic Act imposed a mandatory obligation. The Court noted that (at [14]) ‘"Must" has been defined to mean "indicating an obligation or necessity" and "indicating inevitability", "expressing necessity or obligation" and "a fixed or certain futurity".’[15]

    [15]          Citing The Macquarie Dictionary 3rd edition at 1420, The Oxford English Dictionary 2nd edition vol 10

    Clarendon Press Oxford 1989 at 130.

23. The explanatory memorandum to the Australian Citizenship Bill 2006 provides at page 4 that:

    Subclause 17(1A) puts beyond doubt that the Minister must not approve a person becoming an Australian citizen unless the person is eligible to become an Australian citizen under subclause 16(2) or (3).

24. To import a discretion into the section is, in my opinion, contrary to the meaning of the section and the ordinary interpretation of the words “must not”.

25. I am not persuaded that the section should be interpreted in any other way.

26. There is no ambiguity.

27. The fact remains that Dr Ralfe’s grandmother did lose her Australian citizenship at some point before 1993 and her mother did not acquire citizenship until 1994. As this was after the date of Dr Ralfe’s birth, the requirements of section 16(2) of the Act have not been met. Dr Ralfe is therefore not eligible for Australian citizenship pursuant to section 16(2) of the Act. Section 17(1A) imposes a mandatory obligation on the Minister to not approve an applicant becoming an Australian citizen if the requirements under subsection 16(2) have not been met. Dr Ralfe’s application therefore must be refused.

    CONCLUSION

28. The decision under review is affirmed.

I certify that the preceding 28 (twenty-eight) paragraphs are a true copy of the reasons for the decision herein of Member D K Grigg

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Associate

Dated 14 November 2016

Date of hearing

18 October 2016 

Applicant

Solicitors for the Respondent

In person

Sparke Helmore Lawyers