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

[2020] AATA 1159

Thompson and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Citizenship) [2020] AATA 1159 (6 May 2020)

Division:GENERAL DIVISION

File Number(s):      2019/4629

Re:Mia Kelley Thompson

APPLICANT

AndMinister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

RESPONDENT

DECISION

Tribunal:Chris Puplick AM, Senior Member

Date:6 May 2020

Place:Sydney

The decision under review is affirmed.

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

Chris Puplick AM, Senior Member

CATCHWORDS

CITIZENSHIP – application for citizenship by descent – refusal of citizenship – whether at time of birth the applicant had an Australian citizen parent – whether applicant’s parent was present in Australia for at least 2 years prior to application – decision under review affirmed

LEGISLATION

Australian Citizenship Act 2007 (Cth) ss 11A, 12, 13, 14, 15, 15A, 16, 17, 18, 19, 19A, 19G, 20, 21, 22, 22A, 22B, 22C, 23, 23A, 24, 25, 26, 27, 28

CASES

Fenn and Minster for Immigration and Multicultural Affairs [2000] AATA 931

Minister for Immigration, Local Government and Ethnic Affairs v Roberts (1993) 41 FCR 82

REASONS FOR DECISION

Chris Puplick AM, Senior Member

6 May 2020

THE APPLICATION

1. Mia Thompson (Applicant) has applied for Australian citizenship. As she is a minor, aged 15 years, the application has been made on Mia’s behalf by her mother Ms Tierre Thompson.

2. The Applicant, the elder of twins,[1] was born in February 2005 in New Zealand where she and her family reside. Her application for citizenship by descent was made on 18 July 2019. On 31 July 2019 that application was denied by a delegate of the Minister (Respondent) on the basis that the Applicant did not, at the time of her birth, have a parent who was an Australian citizen.[2] This is a statutory requirement under section 16(2)(a) of the Australian Citizenship Act 2007 (Cth) (Act).

   [1] Section 37 documents (T documents) at 26.

   [2] Ibid at 7.

3. The Applicant (through her mother) applied for the citizenship refusal decision to be reviewed by this Tribunal on 1 August 2019 and the matter was heard on 27 April 2020. The hearing was conducted by telephone with the Applicant’s mother in New Zealand.

   THE APPLICANT’S PARENTS

4. Mia’s mother, Tierre Thompson, was born in New Zealand in February 1970 and holds New Zealand citizenship.[3] Her father, Jamie Thompson, was born in New Zealand in November 1969 and holds both New Zealand and British citizenship.[4]

   [3] Ibid at 29.

   [4] Ibid at 28.

5. Ms Tierre Thompson told the Tribunal that both of her parents (Timothy Brown (deceased) and Pamela Johnson) were born in Sydney but had been long-term residents of New Zealand. The Respondent had no instructions on this matter, but the Tribunal has proceeded on the basis that this claim is correct, although it has no direct bearing on the outcome of this determination.

6. On 14 February 2011 Ms Tierre Thompson acquired Australian citizenship.[5] She also continues to hold her New Zealand citizenship and passport.

   [5] Ibid at 30.

   BECOMING AN AUSTRALIAN CITIZEN

7. The Act provides that there are a number of ways in which a person may become an Australian citizen.

8. Part 2, Division 1 (sections 11A to 15) deals with the matter of automatic acquisition of citizenship: by birth, by adoption, by being a specific category of abandoned child or when a territory is incorporated into and becomes part of Australia.

9. Part 2, Division 2 deals with citizenship that is acquired by application (including citizenship by descent and citizenship by conferral). Subdivision A (sections 15A to 19A) concerns citizenship by descent and sets out qualifications for the grant of such citizenship dealing, inter alia, with matters of identity, parentage, residency, place of birth, etc. Citizenship by descent requires an applicant to establish certain facts about their lineal descent, especially about their qualifying parentage. However, even when all such matters of identity and qualifying parentage are met, such an application may still be refused (section 17).

10. Part 2, Division 2, Subdivision B (sections 19G to 28) deals with citizenship by conferral and sets out a series of requirements which must be met, to the satisfaction of the Minister, before such citizenship can be granted.

11. Relevantly for this application, section 16(2)(a) and (b) provides:

    Persons born outside Australia on or after 26 January 1949

    (2) A person born outside Australia on or after 26 January 1949 is eligible to become an Australian citizen if:

    (a) a parent of the person was an Australian citizen at the time of the birth; and

    (b) if the parent was an Australian citizen under this Subdivision or Subdivision AA, or section 10B, 10C or 11 of the old Act (about citizenship by descent), at the time of the birth:

    (i) the parent has been present in Australia (except as an unlawful non-citizen) for a total period of at least 2 years at any time before the person made the application; or

    (ii) the person is not a national or a citizen of any country at the time the person made the application and the person has never been such a national or citizen

    Necessary qualifications

12. Thus, for Mia to qualify for citizenship, it is necessary that as at her birth in February 2005, one of her parents was an Australian citizen.

13. Her father was not and does not claim to have been.

14. Her mother claims to have automatically been an Australian citizen at the time of Mia’s birth in 2005 (prior to her formal acquisition of citizenship) by default of having two Australian-born parents through whom she was subsequently able to apply for, and acquire, Australian citizenship for herself on 14 February 2011.

    TIERRE THOMPSON’S CITIZENSHIP

15. Tierre Thompson was born in New Zealand. As such, she cannot claim automatic acquisition of citizenship by birth (simply by default of having been born to Australian parents) because section 12 of the Act provides that:

    Citizenship by birth

    (1) A person born in Australia is an Australian citizen if and only if:

    (a) a parent of the person is an Australian citizen, or a permanent resident, at the time the person is born; or

    (b) the person is ordinarily resident in Australia throughout the period of 10 years beginning on the day the person is born.

16. What Ms Thompson seeks is some sort of recognition of what is termed ius sanguinis or “the right of blood” to claim Australian citizenship through her Australian citizen parents. However, Australian citizenship law is based upon a modified form of an alternative approach to citizenship, ius soli or “the right of soil” which places greater emphasis on the place of birth rather than the “bloodline” of birth. Countries like Canada, the United Kingdom and the United States (all with some modifications) recognise a right of citizenship to people born outside their territories if they have at least one parent who is a citizen. New Zealand nationality law contains elements of both ius soli and ius sanguinis.

17. Australian citizenship is acquired only under the provisions of the Act. As the provisions pertaining to automatic acquisition of Australian citizenship do not apply to Ms Tierre Thompson, she must necessarily have obtained her Australian citizenship by way of application and such citizenship was therefore acquired by Ms Thompson as at the date determined by the Minister, being 14 February 2011.

18. Therefore, at the time of Mia’s birth in February 2005, Tierre Thompson was not an Australian citizen. As such, the Applicant does not satisfy the requirement in section 16(2)(a).

    TIERRE THOMPSON’S PRESENCE IN AUSTRALIA

19. Ms Thompson, apart from being born in New Zealand, has lived all her life there. She has only resided in Australia for some 254 days between the date of her own birth and the date that Mia’s citizenship application was made. This means that Ms Thompson does not meet the requirement of section 16(2)(b)(i) of the Act because she was not present in Australia for two years before Mia’s citizenship application was made. Thus, even if Ms Thompson had been an Australian citizen at the relevant time, the Applicant would still not have qualified.

20. Nevertheless, the Tribunal appreciates and understands Ms Thompson’s feelings when she states that she has always regarded herself as an Australian and feels Australian. The Tribunal also understands that Ms Thompson finds it frustrating that, with these feelings and with her own parentage, she cannot be regarded in law as having been an Australian from birth. In this respect her feelings reflect the frustration expressed by Einfeld J in Roberts where he spoke of the anomalies arising where a person:

    … is to all intents and purposes an Australian [but] has to pass arbitrary tests for citizenship.[6]

    [6] Minister for Immigration, Local Government and Ethnic Affairs v Roberts (1993) 41 FCR 82, 86.

21. However, as Ms Thompson actually agreed at the hearing, the law is what it is, to put it in the vernacular, and there is no way of getting around it.

    DISCUSSION

22. Section 17(1A) of the Act provides:

    The Minister must not approve the person becoming an Australian citizen unless the person is eligible to become an Australian citizen under subsection 16(2) or (3).

23. There is no discretion available to the Minister in this regard. If the Applicant does not meet the requirements of section 16(2), the citizenship application cannot be approved.

24. That is the case in this instance. The application cannot be granted.

25. The importance that the legislation places on applicants satisfying the requirement in section 16(2)(a) that their parent(s) was an Australian citizen at the time of their birth is reiterated in section 19A which provides that:

    When a person does not become a citizen despite the Minister’s approval

    Despite section 19, a person does not become an Australian citizen under this Subdivision, even if the Minister approves the person becoming an Australian citizen, unless:

    (a)if the person was born on or after 26 January 1949 – a parent of the person was an Australian citizen at the time of the person’s birth

    MIA’S ALTERNATIVES

26. There is no prohibition on a person making repeated or subsequent applications for citizenship.[7] The Applicant cannot claim citizenship by birth or by descent but there is no prohibition on her making a claim for citizenship by conferral. There are provisions relating to applications made by persons under the age of 18 years. However, a key requirement of such applications, amongst other legislative requirements, is that an applicant be a permanent resident.[8]

    [7] Fenn and Minster for Immigration and Multicultural Affairs [2000] AATA 931, [8].

    [8] Australian Citizenship Act 2007 (Cth) s 21(2)(b) and (5)(b).

    DECISION

27. The decision under review is affirmed.

I certify that the preceding 27 (twenty-seven) paragraphs are a true copy of the reasons for the decision herein of Chris Puplick AM, Senior Member

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

Associate

Dated: 6 May 2020

Date(s) of hearing:	27 April 2020
Advocate for the Applicant:	Ms T Thompson
Solicitors for the Respondent:	Ms K Gawidziel, Australian Government Solicitor