Woo and Minister for Immigration and Border Protection (Citizenship)

[2015] AATA 551

Woo and Minister for Immigration and Border Protection (Citizenship) [2015] AATA 551 (15 July 2015)

Division	GENERAL DIVISION
File Number	2015/0624
Re	Kenneth Woo
APPLICANT
And	Minister for Immigration and Border Protection
RESPONDENT

DECISION

Tribunal	Senior Member Bernard J McCabe
Date	15 July 2015
Date of written reasons	29 July 2015
Place	Brisbane

The Tribunal affirms the decision under review.

............................[Sgd]...............................

Senior Member Bernard J McCabe

CATCHWORDS

CITIZENSHIP – eligibility – application for Australian citizenship by descent – parent not Australian citizen at time of applicant’s birth – decision under review affirmed.

LEGISLATION

Australian Citizenship Act 2007 (Cth), s 16.

Australian Citizenship Act 1973 (Cth), ss 5, 14 ceased.

REASONS FOR DECISION

Senior Member Bernard J McCabe

1. The applicant commenced proceedings in the Tribunal which concluded with a hearing on 15 July 2015. A decision was made and oral reasons were provided at the end of that hearing. The reasons below were distilled from the transcript of the hearing.

2. Mr Woo made an application for Australian citizenship by descent. His application was refused by the Department of Immigration and Border Protection on 22 January 2015.

3. Mr Woo was born in the Trust Territory of New Guinea in 1962. At the time of his birth I am satisfied neither of his parents were Australian citizens. The family were all Australian protected persons under the regime that prevailed before Papua New Guinea became independent, or at least in that area of Papua New Guinea at the relevant time.

4. Mr Woo’s mother, Sarah Woo, subsequently acquired Australian citizenship by naturalisation in 1968. At the time Mrs Woo was in a position to include on the “Certificate of Naturalization” [sic] any of her children who had not yet reached a majority, if she was considered to be their “responsible parent” pursuant to ss 5(1) and 14(9).[1]

   [1] Australian Citizenship Act 1973 (Cth), repealed by Amending Acts to 1970 to 1979 Repeal Act 2015 (Cth) sch 1 item 170.

5. The expression responsible parent is defined in s 5 of that legislation in very narrow terms. The decision-maker in 1973 concluded Mrs Woo was not formally a responsible parent within the meaning of s 5 of the old legislation. Mr Woo was not included on the “Certificate of Naturalization”, and as a consequence was not naturalised in connection with Mrs Woo’s application.

6. Mr Woo said that is a problem because Mrs Woo should have been regarded as a responsible parent. He provided some materials which indicate that - at least in a layperson’s terms - she was the responsible parent. Unfortunately, that is not enough to satisfy the formal requirements of the definition in s 5 of the old legislation. Even if I were satisfied Mrs Woo was the responsible parent, and the decision-maker was in error in refusing to include Mr Woo on the “Certificate of Naturalization”, that is unfortunately not a decision that I have jurisdiction to correct after all this time. Indeed, the decision was actually made before the Administrative Appeals Tribunal even came into existence, so there is no question of a right of appeal to this body from that decision made in 1973.

7. If Mr Woo cannot rely on an argument that he should have been naturalised as a citizen alongside his mother in 1973, he must rely upon s 16 of Australian Citizenship Act 2007 (Cth) (“Act”). The difficulty for Mr Woo there is that s 16(2)(a) says a person born outside Australia on or after 26 January 1949 is eligible to become an Australian citizen if he or she meets several requirements. The first of those requirements is (a) that a parent of the person was an Australian citizen at the time of the birth. It was, however, conceded that in fact neither of Mr Woo’s parents were Australian citizens at the time of his birth in 1962. They were Australian protected persons which is not the same thing.

8. That means the decision made under s 16 of the current Act must be affirmed.

I certify that the preceding 8 (eight) paragraphs are a true copy of the reasons for the decision herein of Senior Member B J McCabe.

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Associate

29 July 2015

Date of hearing	15 July 2015
Applicant	In person
Solicitors for the Respondent	Clayton Utz