UTA ISAIA UTA and MINISTER FOR IMMIGRATION AND CITIZENSHIP
[2013] AATA 498
•15 July 2013
[2013] AATA 498
Division GENERAL ADMINISTRATIVE DIVISION File Number
2013/1281
Re
UTA ISAIA UTA
APPLICANT
And
MINISTER FOR IMMIGRATION AND CITIZENSHIP
RESPONDENT
DECISION
Tribunal Dr P McDermott RFD, Senior Member
Date 15 July 2013 Place Brisbane The decision under review is affirmed.
……..............[SGD]…………………….
Dr P McDermott RFD, Senior MemberCATCHWORDS
IMMIGRATION AND CITIZENSHIP - Citizenship application - Intercountry adoption - One adoptive parent Australian - Adoption not in accordance with Hague Convention - Convention country - Decision under review affirmed
LEGISLATION
Australian Citizenship Act 1948 (Cth) s 25
Australian Citizenship Act 2007 (Cth) ss 3, 19C, 19D
Family Law (Hague Convention on Intercountry Adoption) Regulations 1998 (Cth) regs 3, 4, Sch 1, Sch 2
CASES
Mahuru and Department of Immigration and Citizenship [2008] AATA 464
Potter v Minahan (1908) 7 CLR 277
Re Minister for Immigration and Multicultural and Indigenous Affairs; ex parte Ame (2005) 222 CLR 439
SECONDARY MATERIALS
Convention on Protection of Children and Cooperation in Respect of Intercountry Adoption
REASONS FOR DECISION
Dr P McDermott RFD, Senior Member
15 July 2013
Mr Uta Isaia Uta (the applicant) was born in Samoa in 1971 and is a citizen of Samoa. He has made an application for Australian citizenship for persons adopted in accordance with the Hague Convention on Intercountry Adoption. On 1 March 2013, the delegate of the Minister refused the application. The applicant now seeks review of his application by this Tribunal.
The applicant was culturally adopted at birth in Samoa by the late Uta Isaia (“the adoptive father”) who was an Australian citizen. There is evidence that the adoptive father was born in British New Guinea which later became Papua. The adoptive father was a British subject because of the established principle which has been laid down by the courts,[1] and applied at the Presidential level of this Tribunal,[2] that persons who were born in the British Empire were British subjects.
[1] Potter v Minahan (1908) 7 CLR 277 at 287 per Griffith CJ, at 293 per Barton J, at 305 per O’Connor J; Re Minister for Immigration and Multicultural and Indigenous Affairs; ex parte Ame (2005) 222 CLR 439, 467 per Kirby J. See also, see Albert Venn Dicey, A Digest of England with Reference to the Conflict of Laws (Stevens & Son Ltd, London, 2nd edn., (1908) at p. 166; John Salmond, “Citizenship and Allegiance”, (1902) 18 Law Quarterly Review 49 at 58.
[2] Mahuru and Department of Immigration and Citizenship [2008] AATA 464 at [3] per Deputy President McPherson.
I am satisfied that the adoptive father became an Australian citizen by operation of law on 26 January 1949. This was the date of the proclamation of the Australian Citizenship Act 1948 (Cth)[3] when he became an Australian citizen by virtue of the operation of s 25(1) of that Act. I am satisfied that the adoptive father was an Australian citizen at the time of the adoption of the applicant. The respondent accepts that there is no evidence before me that the adoptive father has accepted the citizenship or nationality of any other country. There is evidence that he was never a citizen of Samoa.[4]
[3] This Act was originally titled the Nationality and Citizenship Act 1948 (Cth).
[4] Exhibit 1, T-documents, p. 53.
While the adoptive father of the applicant was an Australian citizen, this application cannot be approved by the Minister unless the applicant satisfies all of the requirements under s 19C of the Australian Citizenship Act 2007 (the Act). There are a number of requirements that are not satisfied by the applicant.
Section 19C(2)(a) of the Act provides that a person is eligible to become an Australian citizenship if the person is adopted in a “Convention country” by at least one Australian citizen (the adopter). Section 19C(4) of the Act gives the expressions “Convention country” and “adoption compliance certificate” the same meaning as in the Family Law (Hague Convention on Intercountry Adoption) Regulations 1998 (the Regulations). Regulation 4 provides that a “Convention country” is a country specified in Sch 2 of the Regulations or any other country in which the convention is in force. Regulation 3(1) defines the “Convention” as being the “Convention on Protection of Children and Cooperation in Respect of Intercountry Adoption” (see Sch 1 of the Regulations). Samoa is not listed in Sch 2 of the Regulations and there is no suggestion that the Convention is in force in Samoa.
The applicant cannot be eligible for Australian citizenship under s 19C(2) of the Act as there is no evidence that he was adopted in a “Convention country” as Samoa cannot be regarded to be a Convention country within the meaning of the Regulations.. There is also a requirement under s 19C(2)(b) of the Act that an “adoption compliance certificate” was issued in the Convention country of adoption and is in force for the adoption. An “adoption compliance certificate” is defined by reg 3(1) to be a “certificate issued in accordance with article 23 of the Convention. Article 23 requires that an adoption must be certified as having been made in accordance with the Convention. There can be no such “adoption compliance certificate” issued as Samoa is not a Convention country. There is no document that purports to be an “adoption compliance certificate” in evidence. I consider that the application cannot be granted as the essential requirements of ss 19C(2)(a) and (b) of the Act are not satisfied.
There are also other requirements of s 19C of the Act that are not met. There was no contention that under the Regulations the adoption is recognised and effective under the laws of the Commonwealth for each State and Territory as required by s 19C(2)(c) of the Act. There was also no contention that the legal relationship between the applicant and the individuals who were, immediately before the adoption, the applicant’s parents has been terminated as required by s 19C(2)(d) of the Act. There was also no contention that the adopter has been present in Australia (as defined in s 3 of the Act)[5] for a total period of at least 2 years at any time before the applicant made the application as required by s 19C(2)(e) and s 19C(3) of the Act.
[5] Australia is defined in s 3 of the Act as including the external Territories as at the time of the passage of the Act. Papua was not an external Territory at this time.
There was a contention that the adoptive father was prevented from entering Australia. It was settled by a decision of the High Court of Australia that the acquisition of Papua as an external territory did not give a person in the position of the adoptive father an unfettered right of entry into mainland Australia.[6]
[6] Re Minister for Immigration and Multicultural and Indigenous Affairs; ex parte Ame (2005) 222 CLR 439, 454-5 per Gleeson CJ, McHugh, Gummow, Hayne, Callinan and Heydon JJ.
The Minister must not approve the applicant becoming an Australian citizen where that person is not eligible to become an Australian citizen under s 19C(2) of the Act: see s 19D(2). This Tribunal (which, in this respect, exercises the same power as the Minister), having found that the applicant is not eligible to be an Australian citizen under that provision, is unable to set aside the decision of the delegate of the Minister.
DECISION
I affirm the decision under review.
I certify that the preceding 10 (ten) paragraphs are a true copy of the reasons for the decision herein of Dr P McDermott RFD, Senior Member ...........................[SGD]......................................
Associate
Dated 15 July 2013
Date of hearing 3 July 2013 For the Applicant Isaia Uta (brother) Solicitors for the Respondent Sean Kikkert
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