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

[2021] AATA 751

Wilkinson and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Citizenship) [2021] AATA 751 (4 March 2021)

Division:GENERAL DIVISION

File Number(s):      2020/1533

Re:Michael Charles Paul Wilkinson

APPLICANT

AndMinister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

RESPONDENT

DECISION

Tribunal:Senior Member A Poljak

Date:4 March 2021

Date of written reasons:        1 April 2021

Place:Sydney

For the reasons given orally at the conclusion of the interlocutory hearing in this matter, the Tribunal refuses the Respondent’s application for dismissal pursuant to paragraph 42B(1)(b) of the Administrative Appeals Tribunal Act 1975 (Cth).

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

Senior Member A Poljak

CATCHWORDS

CITIZENSHIP – citizenship by descent – whether the application for review had reasonable prospects of success – relevant decision on appeal – applicant’s matter should be properly considered in light of specific circumstances – applicant’s similarly adopted sibling granted Australian citizenship – dismissal application refused

LEGISLATION

Administrative Appeals Tribunal Act 1975 (Cth) s 42B(1)(b)

Australian Citizenship Act 2007 (Cth) s 16(2)(a)

CASES

H v Minister for Immigration and Citizenship [2010] FCAFC 119; 188 FCR 393

Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v Koka [2020] FCA 1471

WRITTEN REASONS FOR ORAL DECISION

Senior Member A Poljak

1 April 2021

1. The applicant, a citizen of the United Kingdom, was formally adopted by Australian citizens within 12 months of his birth. On 14 January 2020, the applicant applied for Australian citizenship by descent (citizenship application).

2. As the applicant applied for citizenship by descent, he must satisfy paragraph 16(2)(a) of the Australian Citizenship Act 2007 (Cth) (Act). The issue in the application for review is whether the applicant had an Australian citizen parent “at the time of [his] birth”. This issue was recently considered by the Federal Court of Australia in Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v Koka [2020] FCA 1471 (Koka).

3. On 19 February 2020, a delegate of the Minister for Immigration, Citizenship and Migrant Services and Multicultural Affairs (Minister) refused the applicant’s citizenship application.

4. On 17 March 2020, the applicant applied to the Tribunal for review of the delegate’s decision (application for review).

5. On 19 January 2021, the respondent sought for the application for review to be dismissed pursuant to paragraph 42B(1)(b) of the Administrative Appeals Tribunal Act 1975 (Cth) (AAT Act) on the basis that the application for review had no reasonable prospect of success.

6. Both the respondent and applicant provided detailed written submissions on dismissal.

7. The Minister submits that based on the decision in Koka and the observations made in obiter by the Full Court in H v Minister for Immigration and Citizenship [2010] FCAFC 119; 188 FCR 393, the applicant cannot satisfy the criterion in paragraph 16(2)(a) of the Act because there is no evidence before the Tribunal to support a finding that, as a matter of fact, either of his biological parents was an Australian citizen at the time of his birth.

8. By way of oral reasons, the respondent’s dismissal application was refused. As requested by the respondent, below is a written account of those reasons.

   Reasons and Decision

9. At hearing of the dismissal application, I advised the parties that I had read their written submissions, the decision of Koka and the decision under review. Neither party made additional oral submissions at hearing.

10. It was discussed that the decision of Koka was currently on appeal to the Full Federal Court (FFC), the appeal having been lodged in November 2020. I advised the parties that I was not minded to dismiss the applicant’s matter at such an early stage of proceedings. In summary, I noted that it would be helpful to hear what the FFC had to say on the matter, as it was quite a significant point and there are a few similar matters coming through the Tribunal, however, there was no specific time frame for when the FFC would hand down its decision. If the matter was determined prior to the resolution of this matter, it would no doubt be helpful.

11. I determined that the applicant’s matter should be properly considered, and a decision made addressing the applicant’s specific circumstances as it may be distinguishable from Koka in that the child in Koka was adopted at a later age; 13 years. At hearing, the applicant also confirmed that his brother, adopted by his parents, had been granted Australian Citizenship.

12. For the abundance of clarity, I advised the parties that I was not waiting for the decision of the FFC in Koka. I thought it appropriate for the applicant’s matter to be heard in its entirety having regard to the specific circumstances of the case.

13. The dismissal application is refused.

I certify that the preceding 13 (thirteen) paragraphs are a true copy of the reasons for the decision herein of Senior Member A Poljak

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

Associate

Dated: 1 April 2021

Date(s) of hearing:	4 March 2021
Applicant:	In person
Solicitors for the Respondent:	Mr T Hillyard, Sparke Helmore