Van-Noort-Pendleton and Minister for Immigration and Multicultural and Indigenous Affairs

[2004] AATA 373

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2004] AATA 373

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No  W2003/238

GENERAL ADMINISTRATIVE DIVISION		)
Re		JENNIFER VAN-NOORT-PENDLETON

Applicant

And MINISTER FOR IMMIGRATION AND MULITCULTURAL AND INDIGENOUS AFFAIRS

Respondent

DECISION

Tribunal  Ms Linda Savage Davis

Date13 April 2004

PlacePerth

Decision The Tribunal affirms the decision under review.

...........(sgd L Savage Davis)............

Member

CATCHWORDS

CITIZENSHIP- refusal of application for citizenship- citizenship by descent- whether a natural parent was an Australian citizen at the time of the birth of the applicant – applicant falls outside terms of section – no discretion.

Australian Citizenship Act 1948 section 10C

Stenberg and Department of Immigration and Ethnic Affairs (AAT 9817, 4 November 1994)

REASONS FOR DECISION

13 April 2004 Ms L   Ms L Savage Davis, Member

1. This is an application by Ms Jennifer Van-Noort-Pendleton (the applicant) for a review of a decision of a delegate of the Minister for Immigration and Multicultural Affairs (the respondent) as advised by letter of 17 June 2003 from the Australian High Commissioner in London (T2) refusing her application for registration of Australian citizenship by descent under section 10C of the Australian Citizenship Act 1948 (the Act).

2. The Tribunal received into evidence the documents lodged pursuant to s.37 of the Administrative Appeals Tribunal Act 1975 (T1-T9), together with three exhibits, two lodged by the applicant (Exhibits A1 & A2) and one lodged by the respondent (Exhibit R1). The applicant was represented by her father Mr Leonardus Van-Noort (Mr Van-Noort) and Miss Susan Van-Noort (Miss Van-Noort). Mr Van-Noort gave evidence on behalf of the applicant. The respondent was represented by Mr Arran Gerrard, Solicitor, Australian Government Solicitor.

3. The issue to be considered by the Tribunal is whether the applicant is eligible to be registered as an Australian citizen by descent under section 10C of the Act. The application had been refused under subsection 10C(4)(a) of the Act because at the time of the applicant’s birth neither parent was an Australian citizen (T2).

LEGISLATION

4.        Section 10(C) of the Act provides as follows;

(1)A person who is registered under this section is an Australian citizen.

(2)A person may apply to the Minister to be registered under this section.

(3)The application must be in accordance with the approved form.

(4)The Minister must register, in the prescribed manner, an applicant for registration under this section if:

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

(b)    that parent:

(i)is an Australian citizen at the time an application under this section is made; or

(ii)is dead and at the time of his or her death was an Australian citizen; and

(c)    the applicant:

(i)was born outside Australia on or after 26 January 1949; and

(ii)is aged 18 years or over on the day on which this section commences; and

(iii)failed for an acceptable reason to become registered as an Australian citizen under:

(A)section 10B; or

(B) section 11 of this Act as in force at any time before the commencement of section 10B; and

(d)   the Minister is satisfied that the applicant is of good character.

Note: acceptable reason is defined in subsection (5).

(5)For the purposes of subparagraph (4)(c)(iii), an applicant has an acceptable reason if and only if:

(a)   an Australian passport has been issued to the applicant; or

(b)   the applicant's name has been on an Electoral Roll under the Commonwealth Electoral Act 1918 ; or

(c)   the applicant was unaware of the requirement of registration for the purposes of obtaining Australian citizenship by descent under section 10B or under section 11 of this Act as in force at any time before the commencement of section 10B; or

(d)   the applicant has a reason for failing to become registered that is declared by the regulations to be an acceptable reason for the purposes of this section.

(6)If the Minister decides not to register an applicant under this section, the Minister must inform the applicant of that decision by written notice served personally, by post or by an electronic communication.

(7)A notice served on an applicant under subsection (6) must include:

(a)   reasons for the decision; and

(b)   notification of the applicant's entitlement to apply for review of the decision under section 52A.

EVIDENCE and SUBMISSIONS

5.        Mr Van-Noort told the Tribunal that he and the applicant’s mother were married in Perth in 1953. Shortly after their marriage they were involved in a serious accident. Following surgery in Australia, plastic surgeon, Dr Harold McCombe recommended that the applicant’s mother go to the United Kingdom (the UK) for treatment that was not currently available in Australia. The applicant’s mother returned to the UK in 1958 with Miss Van-Noort and pregnant with the applicant who was born in the UK on 16 May 1958. They returned to Australia in November 1958. Mr Van-Noort, who had applied for Australian citizenship in 1957, remained in Australia. Mr Van-Noort was granted Australian citizenship on 19 December 1958. In April 1959 Mr Van-Noort, the applicant’s mother, sister and the applicant returned to the UK.

6.         Mr Van-Noort told the Tribunal he thought, although he could not be sure, that both his daughters travelled on his Australian passport when they returned to the UK in April 1959. The Tribunal notes that the applicant in her letters of 18 September 2003 (Exhibit A1) and 22 January 2004 (Exhibit A2) states that she understood that she did travel on her father’s Australian passport at this time. This being the case she felt “…this should carry sufficient weight to my claim for Australian Citizenship.’ (Exhibit A1). Mr Van-Noort’s marriage subsequently ended and he returned to Australia in 1970. Miss Van-Noort moved to Australia in 1974. The applicant also has a stepsister in Australia. The applicant has visited Australia on a number of occasions. She and her husband are both in their mid forties, have two sons aged 10 and 7 and wish to move to Australia because they believe it provides a safer environment with more opportunities. Mr Van-Noort, who is 72, would like to see the family reunited.  The only obstacle to the applicant’s application is the 7 months between her birth and him acquiring citizenship. On behalf of the applicant it was submitted that she was born in the UK only because her mother needed to return to obtain medical treatment.  Travelling by ship and being pregnant necessitated her leaving prior to Mr Van-Noort acquiring citizenship. Mr Van-Noort expressed the hope that there may be some way around the strict application of section 10(C)(4)(a) of the Act .

7.        Mr Gerrard for the respondent submitted that the applicant was unable to meet the requirements of section 10(C) of the Act because neither of her parents were an Australian citizen at the date of her birth. It was submitted that just as there was no discretion not to register an applicant who satisfied the requirements of section 10(C) of the Act, there was no discretion to register an applicant that failed to satisfy the requirements of the section. The unfortunate events, namely the accident that led to the applicant’s mother going to the UK was not something that could be taken into account. Similarly it was irrelevant whether or not the applicant had subsequently travelled on her father’s Australian passport after he acquired citizenship. It was submitted that the applicant was unable to comply with the requirements of section 10(C)(4)(a) of the Act  because neither of her parents were Australian citizens at the date of her birth.

CONSIDERATIONS AND DECISION

8.        In reaching a decision I have taken into account the evidence, submissions, legislation and case law to make the correct and preferable decision regarding whether Ms Jennifer Van-Noort-Pendleton should be granted Australian citizenship by descent.

9.        Section 10(C) of the Act provides that the Minister must register an applicant for registration for citizenship by descent to a person over 18 years of age at the date the section commenced, if the person can prove certain other things required by the section, including that a natural parent of the applicant was an Australian citizen at the time of their birth.  The section came into effect on 15 January 1992 and accordingly it can only apply to persons born between 26 January 1949 and 15 January 1974, a requirement the applicant satisfies having been born on 16 May 1958. The applicant cannot however satisfy the requirement that a natural parent was an Australian citizen at the time of her birth. It is indisputable that the applicant’s father only acquired Australian citizenship on 19 December 1958, some seven months after her birth.  The Tribunal can find no basis for the exercise of any discretion that could qualify this requirement. In Stenburg and Department of Immigration and Ethnic Affairs (AAT 9817, 4 October 1994), Deputy President McMahon noted in reference to section 10 (C)(4)(c)(ii) of the Act;

“There is no discretion apparent in the relevant subsection. Indeed the Minister is under an obligation to register a person if the pre-conditions of this subsection have been complied with. If they have not been complied with, there is no room in terms of the section for a consideration of reasons or for a consideration of surrounding circumstances.”

10.       The requirement for a natural parent to be an Australian citizen at the date of birth of the applicant is also a mandatory requirement. I accept that it may appear inflexible to the applicant and the result of circumstances beyond her control. The applicant has however failed to satisfy subsection 10(C)(4)(a) of the Act. The Tribunal must apply the relevant legislation and has no greater powers than the original decision-maker. It has no independent discretion. The Tribunal therefore affirms the decision under review.

I certify that the 10 preceding paragraphs are a true copy of the reasons for the decision herein of Ms L Savage Davis, Member

Signed: ............(sgd V Wong).............................................
  Associate

Date/s of Hearing  15 March 2004
Date of Decision  13April 2004
Advocate for the Applicant       Mr L Van-Noort-Pendleton
Counsel for the Respondent     Mr A Gerrard
Solicitor for the Respondent     Australian Government Solicitor