Wiggins and Minister for Immigration and Multicultural Affairs

[2006] AATA 484

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2006] AATA 484

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No Q2006/217

GENERAL ADMINISTRATIVE DIVISION		)
Re		DEANNA WIGGINS

Applicant

And MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

Respondent

DECISION

Tribunal Deputy President P E Hack SC

Date2 June 2006

PlaceBrisbane

Decision The application is dismissed pursuant to s 42A(4) of the Administrative Appeals Tribunal Act 1975. 

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Deputy President

REASONS FOR DECISION

2 June 2006 Deputy President P E Hack SC    

1.The applicant, Deanna Wiggins, was apparently born in Russia in July 2005. Her father, Mr Stephen Wiggins, who appeared before me today by telephone, made application on her behalf for registration of Australian citizenship by descent. That application has been refused and on 30 March 2006 Mr Wiggins filed an application in this Tribunal for a review of the decision to refuse.

2.The application today does not concern the merits of the decision, rather it concerns the question of whether the Tribunal has jurisdiction to hear the application. The solicitors for the respondent Minister submitted in their letter of 10 April 2006, that the Tribunal lacked jurisdiction and the hearing today, conducted by telephone, has been set down for the purpose of determining that issue.

3.A person may be registered as a citizen by birth by virtue of s 10B of the AustralianCitizenship Act 1948. The terms of that section are not presently material.

4.The history of this matter comes from a letter dated 6 March 2006 from a Senior Migration Officer in the Australian Embassy in Moscow to Mr Wiggins. It appears from that letter that Mr Wiggins made application for the registration to the Brisbane office of the Department of Immigration and Multicultural Affairs. The application was supported by, amongst other things, a copy of the birth certificate in Russian. It was not accompanied by a certified translation of the certificate.

5.It will suffice for present purposes to note that in the letter of 6 March 2006 registration was refused, it was said on the basis that the birth certificate had not been provided in English or accompanied by a certified translation. Thus the Senior Migration Officer was said to be unable to be satisfied that the requirements of s 10B of the Australian Citizenship Act had been met.

6.Whether the requirement to provide a certified translation is a lawful requirement is not a question that I am called upon to decide. The question I am called upon to decide is whether the Tribunal has jurisdiction to review a decision of this nature.

7.The Tribunal does not have a free-standing jurisdiction to review administrative decisions; its jurisdiction is conferred by statute. Thus s 25(4) of the Administrative Appeals Tribunal Act 1975 provides that the Tribunal has power to review any decision in respect of which application is made to it under any enactment.

8.Section 52A of the Australian Citizenship Act confers jurisdiction on the Tribunal in respect of a number of decisions there specified. Whilst s 10B is there referred to, it is only in respect of a decision of the Minister, under subsection 10B(1A), that the Minister is not satisfied that a person is of good character. The Australian Citizenship Act does not, either expressly or in terms, confer on this Tribunal jurisdiction to review a decision of the kind made here.

9.Mr Wiggins in his letter of 28 April 2006, which sets out his submissions on the matter, sought to overcome this difficulty by focussing upon the word “may” in s 52A(1). He advanced the argument that may was used in the permissive sense. It was not used, he said in a way of prohibiting e.g. may only. I am unable to accept this argument. In my view the word is used in the sense of conferring on the person affected by the decisions enumerated the right to seek a review in the Tribunal and, at the same time, conferring on the Tribunal jurisdiction in the manner anticipated by s 25(1) of the Administrative Appeals Tribunal Act. That section provides that,

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

(a) for review of decisions …

10.It follows that in my view the Tribunal does not have jurisdiction to review the decision and that the application should be dismissed pursuant to s 42A(4) of the Administrative Appeals Tribunal Act without proceeding to review the decision.