Shafai and Secretary, Department of Home Affairs (Citizenship)

[2018] AATA 1624

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

Division:General Division

File Number:           2018/0470

Re:Hassan Ali Shafai

APPLICANT

AndSecretary, Department of Home Affairs

RESPONDENT

File Number:           2018/0471

Re:Arozo Shafai

APPLICANT

AndSecretary, Department of Home Affairs

RESPONDENT

File Number:           2018/0472

Re:Faiza Shafai

APPLICANT

AndSecretary, Department of Home Affairs

RESPONDENT

DECISION

Tribunal:Deputy President S A Forgie

Date:25 May 2018

Place:Melbourne

The Tribunal decides:

It does not have jurisdiction to consider the application lodged by each of the applicants for review of a decision of a delegate of the respondent dated 8 January 2018 and refusing to issue a notice under s 37 of the Australian Citizenship Act 2007 stating that each is an Australian citizen.

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S A FORGIE
Deputy President

CITIZENSHIP – applicants had requested evidence of Australian citizenship from Department of Home Affairs – request made under s 37(4) of Australian Citizenship Act 2007 denied as delegate not satisfied of applicants’ respective identities– an application for review of a decision made under s 37(4) may not be made under s 52(1) – therefore Tribunal has no jurisdiction to review decision.

PRACTICE AND PROCEDURE – application for extension of time to lodge application for review – no reasonable prospects of success as decision of delegate not reviewable by Tribunal – application refused.

Legislation

Administrative Appeals Tribunal Act 1975 s 25(1), 25(4A) 33(1AB)

Australian Citizenship Act 1948 s 47

Australian Citizenship Act 2007 ss 37(2), 37(4), 46, 52

Freedom of Information Act 1982

Tribunals Amalgamation Act 2015 s 3

Cases

Re Celik and Department of Immigration, Local Government and Ethnic Affairs [1988] AATA 277; (1988) 9 AAR 215; 17 ALD 699

Re Tran and Department of Immigration, Local Government and Ethnic Affairs [1991] AATA 432; (1991) 23 ALD 231

REASONS FOR DECISION

Deputy President SA Forgie

1. Hassan Ali Shafai, Arozo Shafai and Faiza Shafai came to Australia from Afghanistan in 2011 with their mother and siblings after being granted subclass 202 Global Special Humanitarian visas (humanitarian visas) in March of that year.  They travelled to Australia as the holders of Australian issued Documents for Travel to Australia (DFTTA).  Each of their DFTTAs recorded their birthdate as shown on their Afghan passports.  Their father, Mr Abbas Ali Shafai, who had migrated to Australia in 2009 as the holder of a refugee visa, was their proposer for the visas. 

1. When he applied for Australian citizenship in 2014, they were included in their father’s application for citizenship by conferral.  Together with Mr Abbas Ali Shafai, Hassan, Ali Shafai, Arozo Shafai and Faiza Shafai were granted Australian citizenship in 2015.  Their dates of birth were shown as the dates of birth they had appeared in their applications for humanitarian visas, on their Afghan passports and on the DFTTAs.  Between 2013 and the grant of their Australian citizenship, Mr Abbas Ali Shafai had made five applications to the Department of Home Affairs (Department) under Part V of the Freedom of Information Act 1982 (FOI Act) to amend his children’s dates of birth.  He provided copies of documents headed “Birth Certificate from the Consulate General Islamic Republic of Afghanistan – Quetta … issued on … 2011 for … [Hassan Ali Shafai, Arozo Shafai or Faiza Shafai], born on … [date which Mr Abbas Ali Hassan have recorded in Australian documents held by the Department]”.   On each occasion, a delegate of the Secretary of the Department (Secretary) refused his request.  He made his sixth application for amendment in 2016 after he and his children had been granted Australian citizenship.  That has also been refused.

1. On the day that their father made his final request for amendment under the FOI Act, each of Hassan Ali Shafai, Arozo Shafai and Faiza Shafai applied to the Minister for Home Affairs (Minister) under s 37 of the Australian Citizenship Act 2007 (AC Act) for evidence of their Australian citizenship.  Each of them lodged a document entitled “Application for evidence of Australian citizenship” with the Department. They made their applications in accordance with s 46 of that legislation but each set out a date of birth that was inconsistent with the date of birth shown in their Afghani passports, applications for humanitarian visas and DFTTAs. The dates of birth they did include were those that Mr Abbas Ali Shafai had told the Department were the correct dates and in relation to which he had asked for an amendment under the FOI Act. A delegate of the Minister declined to give each of Hassan Ali Shafai, Arozo Shafai and Faiza Shafai a notice stating that they are Australian citizens because the delegate was not satisfied of their identity. The delegate made his decision under s 37(2) of the AC Act having regard to s 37(4). A different delegate affirmed that decision on 8 January 2018.

1. Hassan Ali Shafai, Arozo Shafai and Faiza Shafai have applied to the Tribunal for review of the decision. Their applications were lodged on 21 February 2018 and so more than 28 days after the delegate’s decision was made. Therefore, they have also applied for an extension of the time allowed for lodgement of their applications. In considering whether I should grant their applications for an extension of time, I have considered whether the Tribunal has the jurisdiction to consider their applications for review of decisions made under s 37 of the AC Act. I have decided that the Tribunal does not have the power to review decisions of that sort. Therefore, I have decided not to grant the applications for extension of time lodged by Hassan Ali Shafai, Arozo Shafai and Faiza Shafai for review of decisions made by a delegate under s 37 of the AC Act.

   LEGISLATIVE FRAMEWORK

Australian Citizenship Act 2007

1. Section 37 of the AC Act provides:

   “Evidence 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)to 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.”

Administrative Appeals Tribunal Act 1975

A.       General outline

1. The Tribunal does not have an unlimited power to review the merits of an administrative decision made by a Commonwealth agency or decision-maker. Its power is limited to those decisions in respect of which a person affected by a particular decision is entitled to make an application to the Tribunal for its review. This follows from the fact that provision is made in s 25(1) of the Administrative Appeals Tribunal Act 1975 (AAT Act) that 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.”

Given that the Tribunal is given powers in relation to applications made to it and in relation to the review of decisions as well as authority to determine the scope of review of a decision under s 25(4A), it must be implied that the Tribunal is given jurisdiction to consider those applications and review the decisions.[1]

[1] Before its repeal by the Tribunals Amalgamation Act 2015; s 3 and Schedule 1, Item 40, s 25(4) expressly stated that this was so: “The Tribunal has power to review any decision in respect of which application is made to it under any enactment.”

1. The AAT Act sets out the framework within which the Tribunal will carry out its functions when an application is made to it.  So, for example, s 2A requires that:

   “In carrying out its functions, the Tribunal must pursue the objective of providing a mechanism of review that:

   (a)       is accessible; and

   (b)       is fair, just, economical, informal and quick; and

   (c)       is proportionate to the importance and complexity of the matter; and

   (d)       promotes public trust and confidence in the decision-making of the Tribunal.”

Section 33(1AB) complements that objective when it provides that a party to a proceeding and any representative of a party must use his or her best endeavours to assist the Tribunal to fulfil it.

1. The AAT Act gives the Tribunal power to direct its own procedures[2] and the means to enable it to have relevant documentary information in order to assist it to review an administrative decision.[3]

   [2] AAT Act; s 33

   [3] See, for example, ss 37, 38 and 38A of the AAT Act.

B.Identifying the decisions in respect of which a person may apply to the Tribunal

1. When a decision is made, as has been made in this case, in relation to a matter relating to Australian citizenship, the enactment that may be relevant is the AC Act. Section 52 sets out when a person may make an application for review to the Tribunal. It states that an application may be made for review of decisions that it specifies. They are:

   “(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.”[4]

   [4] AC Act; s 52(1)

1. Sections 52(2) and (3) qualify a person’s entitlement to make an application for review of a decision made by the Minister under s 24 refusing to approve a person’s becoming an Australian citizen and confine the Tribunal’s powers when it is conducting a review. Those qualifications are not, however, relevant in this case because the decision of which Hassan Ali Shafai, Arozo Shafai and Faiza Shafai seek review has not been made under s 24. A decision granting them Australian citizenship under s 24 was made in 2015 and they do not seek to have that decision changed.

CONSIDERATION

1. Hassan Ali Shafai, Arozo Shafai and Faiza Shafai submitted that two earlier decisions made by the Tribunal support their entitlement to make an application.  The first is Re Celik and Department of Immigration, Local Government and Ethnic Affairs[5] (Celik). It was decided by Deputy President McMahon on an application seeking review of a decision made under s 47 of the Australian Citizenship Act 1948 (1948 AC Act).  Although the 1948 AC Act was repealed,[6] s 47(1) of that legislation provided:

   “Where the Minister is satisfied that it is:

   desirable for any reason that a certificate of Australian citizenship should be amended, he may amend the certificate.”

   [5] [1988] AATA 277; (1988) 9 AAR 215

   [6] Australian Citizenship (Transitional and Consequential) Act 2007; s 3, Schedule 1, Part 2, Item 42

1. As Deputy President McMahon said:

   “In my view, it can not be thought that it is desirable for a Certificate of Australian Citizenship to contain information which has been proved to be incorrect.  Once that error has been proven, it can not be said to be desirable that it should remain unaltered.  As reliance is placed upon details in official documents by other official bodies, and by citizens having dealings with the holder of an official document … it is desirable, in my view, that all statements of fact appearing on the face of the document should be as accurate as one can reasonably expect in human affairs. …”[7]

   [7] [1988] AATA 277; (1988) 9 AAR 215 at [30]; 223

1. I referred to Celik in Re Tran and Department of Immigration, Local Government and Ethnic Affairs[8] (Tran). It also concerned an application for correction under s 47 of the 1948 AC Act. I also referred to s 37 of the 1948 AC Act but it was not drafted in the same terms as s 37 of the AC Act, which is now in force. Instead, s 37 of the 1948 AC Act was concerned with the Minister’s power to delegate all or any of his or her powers under that legislation.

   [8] [1991] AATA 432

1. The Tribunal had jurisdiction or power to review a decision made by a delegate of the Minister under s 47 refusing to amend a certificate of Australian citizenship because that section was one of the sections specifically listed in s 52A. Section 52A conferred an entitlement on a person to make an application to the Tribunal. In particular, s 52A(1)(c) provided:

   “Applications may be made to the Administrative Appeals Tribunal for review of:

   (aaa)-(c)…

   (c) decisions of the Minister under subsection 21 (1) or 23 (2) or section 47;

   (d)-(f)…”

1. Section 52A(1)(c) of the 1948 AC Act entitled a person affected by a decision under s 47 of that legislation to make an application for review. The 1948 AC Act is not the legislation under which the delegate of the Minister made the decision in this case. Therefore, what was decided under that legislation has no relevance in this case.

1. The decision which Hassan Ali Shafai, Arozo Shafai and Faiza Shafai would like the Tribunal to review in this case is a decision made under s 37 of the AC Act. A decision made under s 37 of the AC Act is not a decision listed in s 52(1). Therefore, which Hassan Ali Shafai, Arozo Shafai and Faiza Shafai are not entitled to make an application for review of a decision made under s 37. As they are not entitled to make an application to the Tribunal, the Tribunal has no jurisdiction or power to review a decision made by a delegate of the Minister under s 37. More particularly, it does not have jurisdiction to review the decision to refuse to give each of Hassan Ali Shafai, Arozo Shafai and Faiza Shafai a notice stating that they are Australian citizens because the delegate was not satisfied of their identity.

DECISION

1. I have decided that the Tribunal does not have jurisdiction to consider an application lodged by each of Hassan Ali Shafai, Arozo Shafai and Faiza Shafai for review of a decision of a delegate of the Minister dated 8 January 2018 and refusing to issue a notice stating that they are Australian citizens.

I certify that the preceding seventeen [17] paragraphs are a true copy of the reasons for the decision herein of

Deputy President S A Forgie.

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Associate
Dated: 25 May 2018

Date of hearing:	14 May 2018
Solicitor for the Applicant:	IM & EM Lawyers and Consultants Pty Ltd
Solicitor for the Respondent:	Ms Melinda Jackson Australian Government Solicitor