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

[2022] AATA 995

RBFW and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Citizenship) [2022] AATA 995 (4 May 2022)

Division:GENERAL DIVISION

File Number:          2020/8129

Re:RBFW

APPLICANT

AndMinister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

RESPONDENT

DECISION

Tribunal:Senior Member P. Q. Wood

Date:4 May 2022

Place:Melbourne

The decision of the delegate of the Minister to refuse the Applicant’s application for citizenship dated 12 November 2020 is set aside and remitted to the Respondent for reconsideration with a direction that the Applicant satisfies the requirements of section 21(8) of the Australian Citizenship Act 2007 (Cth).

....[sgd]....................................................................

Senior Member P. Q. Wood

Catchwords

CITIZENSHIP – application for conferral of Australian citizenship – applicant is a child born in Australia – whether applicant considered to be stateless and eligible to become an Australian citizen under section 21(8) of the Australian Citizenship Act 2007 (Cth) – whether the child’s parents are citizens under section 7 of the Burma Citizenship Law 1982– parents left permanently – if parents had citizenship it would have  ceased and they would be considered stateless – child therefore stateless under section 21(8) – citizenship by conferral granted – decision set aside and remitted

Legislation
Australian Citizenship Act 2007 (Cth)

Australian Citizenship Regulations 2007 (Cth)
Burma Citizenship Law 1982 (Burma)

Secondary Materials

Department of Home Affairs, Australian Citizenship [Policy Statement] - Citizenship Policy Instructions, Reissued 27 November 2020 (as revised in January 2021)

REASONS FOR DECISION

Senior Member P. Q. Wood

4 May 2022

BACKGROUND

1. RBFW (“the Applicant”) is a minor child who was born in Australia in 2014.

2. The Applicant’s parents arrived in Australia on 14 December 2013 and have an older child who did not arrive with them. On 18 December 2013, they were transferred to an offshore processing centre, and returned to Australia on 27 September 2014. The Applicant’s parents were granted Bridging Visas on 30 September 2020.

3. On 30 November 2015, an application for conferral of citizenship was made on behalf of RBFW by the Applicant’s parents under section 21(8) of the Australian Citizenship Act 2007 (Cth) (“the Act”) in which the Applicant was claimed to be a stateless person.  

4. On 12 November 2020, a delegate of the Minister (“the Respondent”) refused the Applicant’s application for citizenship (“the Reviewable Decision”). The Respondent found that the Applicant’s parents were Myanmar citizens and was satisfied that the Applicant became a citizen of Myanmar automatically under Myanmar law upon his birth in Australia to parents who were both Myanmar citizens at the time of his birth. The Respondent found that therefore, the Applicant does not meet the statelessness provisions in section 21(8)(b) of the Act.

5. The Applicant applied to the Administrative Appeals Tribunal for review of the Reviewable Decision on 8 December 2020.

6. A hearing by video was held in this matter on 21 and 29 October 2021.

   ISSUE

7. The issue is whether the Applicant is eligible for Australian citizenship pursuant to the Act. Specifically, whether the Applicant is eligible to become an Australian citizen in accordance with the eligibility criteria in section 21(8) of the Act.

8. It is common ground that the question of whether a person is a citizen of another country is determined by reference to the law of that country. I have reproduced the relevant section of the Burma Citizenship Law 1982 (“Myanmar Law”) below. Significantly, section 16 of the Myanmar Law states that a person who leaves Myanmar permanently ceases to be a citizen upon their departure. The question for me is whether the Applicant’s parents had left permanently before the Applicant was born in Australia.

   LEGISLATION

   Statelessness

9. Section 21(8) of the Act outlines the guidelines for receiving citizenship under the statelessness provisions. It provides that a person is eligible to become an Australian citizen if the Minister is satisfied that:

   (a) the person was born in Australia; and

   (b) the person:

   (i) is not a national of any country; and

   (ii) is not a citizen of any country; and

   (c) the person has:

   (i) never been a national of any country; and

   (ii) never been a citizen of any country; and

   (d) the person:

   (i) is not entitled to acquire the nationality of a foreign country; and

   (ii) is not entitled to acquire the citizenship of a foreign country.

10. Section 21 of the Act is subject to section 24 which provides, in part, that:

    (1)  If a person makes an application under section 21, the Minister must, by 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 21(2), (3), (4), (5), (6), (7) or (8).

    (2)  The Minister may refuse to approve the person becoming an Australian citizen despite the person being eligible to become an Australian citizen under subsection 21(2), (3), (4), (5), (6) or (7).

    (3)  The Minister must not approve the person becoming an Australian citizen unless the Minister is satisfied of the identity of the person.

11. If the Tribunal accepts section 21(8) of the Act is satisfied, the Respondent must grant citizenship to the Applicant under section 24. There is no discretion to refuse citizenship if eligibility under section 21(8) of the Act is established.

    Burma Citizenship Law 1892 (“Myanmar Law”)

12. The Myanmar Law, in part, provides that:

    (7) The following persons born in or outside the State are also citizens:

    (a) persons born of parents, both of whom are citizens;

    (b) persons born of parents, one of whom is a citizen and the other an associate   

    citizen;

    (c) persons born of parents, one of whom is a citizen and the other a naturalized person;

    (d) persons born of parents one of whom is:

    (i) a citizen; or

    (ii) an associate citizen; or

    (iii) a naturalized citizen;

    and the other is born of parents, both of whom are associated citizens;

    (e) persons born of parents, one of whom is:

    (i) citizen; or;

    (ii) an associate citizen; or

    (iii) a naturalized citizen;

    and the other is born of parents, one of whom is an associate citizen and the other a naturalized citizen

    ….

    (16) A citizen who leaves the State permanently, or who acquires the citizenship of or registers himself as a citizen of another country, or who takes out a passport or similar certificate of another country ceases to be a citizen.

    EVIDENCE

13. In her statutory declaration dated 22 September 2020, the Applicant’s mother claims that she was a citizen of Myanmar (formerly known as Burma), but that this was ‘cancelled’ in 1995 once she turned 18.

14. It is noted that Myanmar citizens are expected to reapply for ‘Citizenship Scrutiny Cards’ (“CSC”) at ages 10, 18, 30 and 45,[1] however the Respondent contended that failure to reapply for CSC would not cause a Myanmar citizen to lose their citizenship.[2] The Applicant’s representatives, however, submitted that many people, particularly Muslims and those with Indian heritage, never received a CSC following a process of applying for one, rendering them a non-citizen.[3]

    [1] T Documents, T8 page 167

    [2] Respondents SFIC page 9

    [3] Applicant’s SFIC, paragraph 85

15. The Applicant’s mother’s birth certificate provided to the Department does not list the nationality information of her father but lists her mother’s nationality as ‘Myanmar’.

16. In the Applicant’s father’s birth certificate, his parents are listed as being Myanmar nationals. There is no explicit mention of his parents and their nationality in his statutory declaration dated 22 September 2020. Like the Applicant’s mother, he claimed to be a citizen of Myanmar until this was ‘cancelled’ in 1997 when he turned 18.

17. The Respondent accepted that the Applicant’s father is not entitled to full citizenship as his race is described in an identification card as ‘Bengali’,[4] however, they contended that the father was eligible for associate or naturalised citizenship.

    [4] Respondents SFIC, page 8; T9, 255

18. The Department was informed that the Applicant’s sister was left with the Applicant’s mother’s parents in Myanmar, and her birth certificate was provided in support of the Applicant’s citizenship application. This birth certificate contains the National Registration numbers of both of the Applicant’s parents.[5]

    [5] T Documents, T14, page 292

19. CPI 4 – Australian Citizenship by Conferral – Persons under 18 provides guidance to Department officers considering individual applications for citizenship by, relevantly, a child aged 15 years or under.  Officers are to have due regard to all the circumstances of a family until when considering individual applications.  It is desirable for the Tribunal to generally apply policy unless that would lead to an unjust outcome. CPI 4 states that:

    ‘The intent of these policy settings is [that] the child (and their responsible parent/s) intend to reside, or to continue to reside, in Australia or to maintain a close and continuing association with Australia, if the application was to be approved. As it would be difficult for a child to meet the policy guidance on maintaining a close and continuing association with Australia, residence in Australia is generally the most relevant to a child’s circumstances.’

20. In a case where a child is usually resident in Australia and living with a responsible parent and who consents to the application, the officer must assess whether the child would suffer significant hardship or disadvantage if the child was not to become an Australian citizen at this time. Following the policy that in the case of a child of the Applicant’s age residence in Australia is the most relevant guide, I am satisfied on the evidence that the Applicant was (a) born in Australia and (b) has not departed Australia since birth. 

21. There is a general policy that a child in Australia of non-citizen parents who are not permanent residents would not usually be granted Australian citizenship for the obvious reason that the child’s parents may depart Australia and return to their country of reference. In this case, because of the personal circumstances of how his parents left Myanmar, I am satisfied that they are unlikely to return to that country.

22. Ultimately, I do not consider that I need to determine whether or not the Applicant’s parents were Myanmar citizens prior to their departure. This is because, as I referred, whatever their status, section 16 of the Myanmar Law removed their citizenship at the time they fled Myanmar, assuming that I am satisfied that they left permanently. In this respect the evidence is clear. They made arrangements in respect of their business and other child, left by boat, claimed refugee status in a timely manner and never returned. I reject the Respondent’s submission that the Applicant’s parents should not be considered to have left permanently at the time of the Applicant’s birth in December 2014 as they had not settled permanently in Australia or another place and because they remain in Australia on bridging visas. It follows that I am so satisfied.

    Is the Applicant eligible for citizenship by conferral under section 21(8) of the Act?

23. As I find that the Applicant is stateless and is not a Myanmar citizen nor eligible for the grant of the citizenship of Myanmar, and there being no evidence that the Applicant is a national or citizen of another State, or eligible for citizenship or to acquire the nationality of another State, he meets the requirements of section 21(8) of the Act.

    CONCLUSION

24. The Applicant is eligible for citizenship by conferral under section 21(8) of the Act.

    DECISION

25. The decision of the delegate of the Minister to refuse the Applicant’s application for citizenship dated 12 November 2020 is set aside and remitted to the Respondent for reconsideration with a direction that the Applicant satisfies the requirements of section 21(8) of the Australian Citizenship Act 2007 (Cth).

I certify that the preceding 25 (twenty-five) paragraphs are a true copy of the reasons for the decision herein of Senior Member P.Q. Wood

...[sgd].............................................

Associate

Dated: 4 May 2022

Dates of hearing:	21 October 2021 & 29 October 2021
Counsel for the Applicant:	A McBeth
Solicitors for the Applicant	Asylum Seeker Resource Centre
Advocate for the Respondent:	L Hargrave
Solicitors for the Respondent:	Clayton Utz