Wood and Minister for Immigration and Citizenship

[2008] AATA 805

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2008] AATA 805

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No 2007/4531

GENERAL ADMINISTRATIVE DIVISION		)
Re		PETER WOOD

Applicant

And MINISTER FOR IMMIGRATION AND CITIZENSHIP

Respondent

DECISION

Tribunal   Mr S E Frost, Member

Date of Decision                10 September 2008

Date of Written Reasons 10 September 2008

Place  Sydney

Decision   For the reasons given orally, the decision under review is   affirmed.

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

Mr S E Frost  Member

CATCHWORDS

CITIZENSHIP - Australian citizenship by descent - whether Applicant's father became an Australian citizen in 1949 - whether Applicant's father, a British subject, naturalised in Australia - definition of alien - Applicant not entitled to Australian citizenship by descent if father qualified only by residence and not by naturalisation - decision under review affirmed

Australian Citizenship Act 2007 - s 16(3)

Australian Citizenship Act 1948 - s 25(1)

Nationality Act 1920 - s 5

REASONS FOR DECISION

10 September 2008 Mr S E Frost, Member        

1.      At the conclusion of the hearing of the above matter the terms of the decision intended to be made and the Member’s reasons were stated orally.  Both parties requested the Tribunal to furnish to them a statement in writing of the reasons of the Tribunal for its decision.  Those reasons follow.

2.      Peter Wood has applied for Australian citizenship by descent.  His application is to be considered under section 16 of the Australian Citizenship Act 2007 (“the 2007 Act”).

3.      The relevant part of section 16 of the 2007 Act is subsection (3), which provides that for Mr Wood's application to be successful, the following three conditions must be satisfied:

·     his father must have become an Australian citizen on 26 January 1949 (that is the date on which the Australian Citizenship Act 1948 (“the old Act”) commenced);

·     his father must have been born in Australia or New Guinea or must have been naturalised in Australia before Mr Wood’s birth; and

·     the Minister (or on review, the Tribunal) must be satisfied that Mr Wood is of good character.

4.      Those three conditions are set out in paragraphs (a), (b) and (c) respectively of subsection 16(3) of the 2007 Act.  The Minister has no issue with Mr Wood’s satisfaction of paragraph (c), but does not accept that Mr Wood satisfies either paragraph (a) or paragraph (b).

5.      Mr Wood’s father was born in England in 1913.  He was a British subject.  He died in 1957.

6.      Mr Wood has set out in a statement some of the factual circumstances relating to his father's life in Australia from the time that he first came here in 1929 at the age of 16 until he enlisted with the Royal Air Force in 1941.  He has also explained that his father was taken a prisoner of war, that he was repatriated to England at the end of the Second World War, and that he was eventually released from duty with the RAF in 1948.  Mr Wood has explained that his father did not ever return to Australia after the war and has also explained what he says are the reasons why he was unable to do so. 

7.      I have indicated to Mr Wood that there is some force in his argument that his father became entitled to Australian citizenship on 26 January 1949.  However, I make no finding on that question, as it is unnecessary for me to do so.  For reasons that will become clear, Mr Wood’s circumstances do not satisfy paragraph (b) of subsection 16(3) of the 2007 Act and for that reason I do not need to explore any further the question whether his father became an Australian citizen as a result of the residence requirement in subsection 25(1) – specifically paragraph (d) – of the old Act.

8.      This matter turns on paragraph (b) in subsection 16(3) of the 2007 Act.  For Mr Wood to be eligible to become an Australian citizen by descent, it must be the case that either:

·     his father was born in Australia; or

·     his father was born in New Guinea; or

·     his father was naturalised in Australia before Mr Wood’s birth.

9.      None of those conditions is satisfied.

10.     This leads to what may be thought to be an unusual conclusion, in that even if Mr Wood’s father is accepted as having become an Australian citizen on 26 January 1949, nevertheless Mr Wood is not entitled to Australian citizenship by descent.

11.     That outcome seems quite clearly to have been intended by the Parliament when the 2007 Act was written.

12.     To understand that last statement, some brief examination of the old Act, and its predecessor, is necessary.

13.     Prior to the enactment of the old Act, there was no concept of “Australian citizenship” as such.  People who we would now regard as Australian citizens were British subjects.  On 26 January 1949, when the old Act commenced, certain categories of people became “Australian citizens” automatically.

14.     The main categories of people who became Australian citizens on that date are those that are set out in one of the four paragraphs of subsection 25(1) of the old Act.  They are:

·     those who were born in Australia; (paragraph (a));

·     those who were born in New Guinea (paragraph (b));

·     those who were naturalised in Australia (paragraph (c));

·     those who had been resident in Australia for five continuous years immediately prior to 26 January 1949 (paragraph (d)).

15.     It will be seen that people descended from parents in the first three categories – paragraphs (a), (b) and (c) – will satisfy both paragraphs (a) and (b) of subsection 16(3) of the 2007 Act and, assuming that they are of good character, will be entitled to Australian citizenship by descent.

16.     However, people descended from parents who satisfy only paragraph (d) of subsection 25(1) of the old Act, and not any of the other paragraphs, will fail to satisfy paragraph (b) of subsection 16(3) of the 2007 Act, and will not therefore be entitled to Australian citizenship by descent under that provision.

17.     It should be mentioned here that under the Nationality Act 1920, which preceded the old Act, there is only one category of person who could be naturalised and that is the category known as an “alien”.  An alien is defined in the Nationality Act1920 as “a person who is not a British subject”.

18.     Under the old Act (that is, the Australian Citizenship Act 1948), there are two categories of people who can become naturalised.  These are “aliens” and “protected persons”.  Mr Wood’s father was neither of those. 

19.     Because of these definitions, he could not have been naturalised – whether under the 1920 Act or under the old Act – even if he had wanted to be.

20.     So it is that Mr Wood's father, lacking the capacity to be naturalised in Australia, could not have been entitled to Australian citizenship in 1949 in reliance on paragraph (c) of subsection 25(1) of the old Act, but could only ever have relied on paragraph (d) of that subsection.  As set out above, that does not enable Mr Wood to satisfy paragraph (b) of subsection 16(3) of the 2007 Act.

21.     The necessary conclusion is that Mr Wood is not entitled to Australian citizenship by descent under subsection 16(3) of the 2007 Act.  I have no option but to affirm the decision under review.

I certify that the 21 preceding paragraphs are a true copy of the reasons for the decision herein of Mr S E Frost, Member

Signed:         ..............[sgd]..................................................................
  Associate

Date of Hearing  10 September 2008
Date of Decision  10 September 2008       
Solicitor for the Applicant          Self-represented             
Solicitor for the Respondent     Ms Tessa van Duyn, Clayton Utz Lawyers