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

[2021] AATA 5331

Salonica and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Citizenship) [2021] AATA 5331 (14 December 2021)

Division:GENERAL DIVISION

File Number:          2021/3843

Re:Mary Magdalene Salonica

APPLICANT

AndMinister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

RESPONDENT

Date:14 December 2021  

Place:Brisbane

DECISION

Pursuant to section 42A(4) of the Administrative Appeals Tribunal Act 1975 (Cth), the Tribunal does not have jurisdiction to consider the application lodged by the Applicant for review of a decision by the Respondent, dated 10 May 2021, refusing to issue a notice stating the Applicant is an Australian citizen, pursuant to section 37(2) of the Australian Citizenship Act 2007 (Cth).

..............[SGD].........................

Senior Member B. Pola

Catchwords

CITIZENSHIP – applicant requested evidence of Australian citizenship from Department of Home Affairs – request made under section 37(4) of Australian Citizenship Act 2007 denied as delegate not satisfied Applicant was an Australian Citizen – application for review of a decision made under section 37(4) may not be made under section 52(1) –Tribunal has no jurisdiction to review delegate decision

Legislation

Administrative Appeals Tribunal Act 1975 (Cth)

Australian Citizenship Act 2007 (Cth)

Cases

Shafai and Secretary, Department of Home Affairs (Citizenship) [2018] AATA 1624

REASONS FOR DECISION

Senior Member B. Pola
14 December 2021

BACKGROUND

1. The Applicant, Mrs Mary Magdalene Salonica, applied for evidence of Australian citizenship on 17 November 2020, pursuant to section 37(2) of the Australian Citizenship Act 2007 (herein referred to as the ‘Citizenship Act’).

2. The Applicant was born in Bereina, the former External Territory of Papua in October 1956. Department of Home Affairs records indicate that the Applicant first arrived in Australia in December 1985, as a holder of a temporary visitor visa under her current married name.

3. On 10 May 2021, the Department of Home Affairs (herein referred to as the ‘Respondent’) wrote to the Applicant advising her that her application for evidence of Australian citizenship was not successful on the basis that the Respondent was satisfied the Applicant was not an Australian citizen and therefore, was not eligible to be given a notice stating that she was an Australian citizen, pursuant to section 37(2) of the Citizenship Act.

4. The correspondence from the Department of Home Affairs, dated 10 May 2021, to the Applicant stated the following, with respect to review rights:

   “… No further assessment of this citizenship application can be taken at this office. However, the decision can be reviewed by another officer… It is recommended that you seek a review within 28 days from the date of this letter…”.

5. The Applicant applied to the Administrative Appeals Tribunal on 7 June 2021 for review of the decision of the Respondent, dated 10 May 2021. Both the Applicant and Respondent’s representative confirmed via email to the Tribunal that they consented to this matter being determined on the papers. 

   RELEVANT LEGISLATIVE PROVISIONS

6. Division 4, section 37 of the Citizenship Act stipulates the relevant requirements regarding the provisions of evidence of citizenship, it provides:

   Division 4—Evidence of Australian citizenship

   37Evidence of Australian citizenship

   (1)A person may make an application to the Minister for evidence of the person’s Australian citizenship.

   Note:Section 46 sets out application requirements (which may include the payment of a fee).

   Notice

   (2)The Minister may give the person a notice stating that the person is an Australian citizen at a particular time.

   (3)The notice must:

   (a) be in a form prescribed by the regulations; and

   (b)contain any other matter prescribed by the regulations.

   Identity

   (4)The Minister must not give the person such a notice unless the Minister is satisfied of the identity of the person.

   Note:Division 5 contains the identity provisions.

   Evidentiary status

   (5)A notice is prima facie evidence of the matters in the notice.

   Cancellation

   (6)The Minister may, by writing, cancel a notice given to a person under this section.

7. Relevantly, section 52 of the Citizenship Act stipulates the following with respect to decisions which are made under the Citizenship Act, with respect to when a person may make an application for review of those decisions to the Tribunal, it provides:

   52  Review of decisions

   (1)An application may be made to the Administrative Appeals Tribunal for review of the following decisions:

   (a)a decision under section 17 to refuse to approve a person becoming an Australian citizen;

   (aa)a decision under section 19D to refuse to approve a person becoming an Australian citizen;

   (b)a decision under section 24 to refuse to approve a person becoming an Australian citizen;

   (c)a decision under section 25 to cancel an approval given to a person under section 24;

   (d)a decision under section 30 to refuse to approve a person becoming an Australian citizen again;

   (e)a decision under section 33 to refuse to approve a person renouncing his or her Australian citizenship, except a refusal because of the operation of subsection 33(5) (about war);

   (f)a decision under section 34 or subsection 36(1) to revoke a person’s Australian citizenship.

   Citizenship by conferral decision

   (2)   However, if:

   (a)the Minister makes a decision under section 24 to refuse to approve a person becoming an Australian citizen; and

   (b)the Minister’s reasons for the decision did not refer to the eligibility ground in subsection 21(8) (about statelessness); and

   (c)the person was aged 18 or over at the time the person made the application to become an Australian citizen;

   person (the applicant) cannot apply for review of that decision unless the applicant is a permanent resident.

   (3)For the purposes of the Administrative Appeals Tribunal reviewing a   

   decision of a kind referred to in paragraph (1)(b):

   (a)the Tribunal must not exercise the power under subsection 22A(1A) or 22B(1A); and

   (b)the Tribunal must not review any exercise of the power or any failure to exercise the power.

8. The Tribunal observes that section 37 of the Citizenship Act is not listed as a decision for review, pursuant to section 52(1) of the Citizenship Act.

9. Relevantly, section 25(1) of the Administrative Appeals Tribunal Act 1975 (Cth) limits the power of the Tribunal with respect to a review of the merits of an administrative decision by a Commonwealth agency or decision-maker, which provides:

   25  Tribunal may review certain decisions

   Enactment may provide for applications for review of decisions

   (1)An enactment may provide that applications may be made to the Tribunal:

   (a)for review of decisions made in the exercise of powers conferred by that enactment; or

   (b) for the review of decisions made in the exercise of powers conferred, or that may be conferred, by another enactment having effect under that enactment.

   JURISDICTION

10. Upon reflection of the evidence before it, the Tribunal is satisfied that it does not have jurisdiction to consider the application lodged by the Applicant, with respect to review of a decision made by the Respondent, dated 10 May 2021, to refuse to issue a notice to the Applicant stating they were an Australian citizen.

11. The Tribunal notes this finding is consistent with earlier decisions of the Tribunal of a similar nature[1].

    [1] Shafai and Secretary, Department of Home Affairs (Citizenship) [2018] AATA 1624 (25 May 2018) at [16].

    DECISION

12. Pursuant to section 42A(4) of the Administrative Appeals Tribunal Act 1975 (Cth), the Tribunal does not have jurisdiction to consider the application lodged by the Applicant for review of a decision by the Respondent, dated 10 May 2021, refusing to issue a notice stating the Applicant is an Australian citizen, pursuant to section 37(2) of the Australian Citizenship Act 2007 (Cth).

    I certify that the preceding 12 (twelve) paragraphs are a true copy of the reasons for the decision herein of Senior Member B. Pola

    …………[SGD].……………

    Associate

    Dated: 14 December 2021