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

XGBR and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Citizenship) [2021] AATA 2407 (21 July 2021)
Administrative Appeals Tribunal

ADMINISTRATIVE APPEALS TRIBUNAL )

) No: 2020/8397

GENERAL DIVISION )
Re: XGBR
Applicant

And: Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
Respondent
DIRECTION
TRIBUNAL: Deputy President J W Constance
DATE OF CORRIGENDUM: 17 August 2021
PLACE: Sydney

IT IS DIRECTED, in accordance with subsection 43AA(1) of the Administrative Appeals Tribunal Act 1975 (Cth), that the text of the decision in this application is to be altered such that the reference to “section 25” in the first sentence of paragraph 28 of the decision is replaced with “section 24”.

.........................[SGD]..........................................
J W Constance
Deputy President
Division:GENERAL DIVISION
File Number(s): 2020/8397
Re:XGBR
APPLICANT

AndMinister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
RESPONDENT

DECISION
Tribunal:Deputy President J W Constance
Date:21 July 2021
Place:Sydney

The application is dismissed pursuant to subsection 42A(4) of the Administrative Appeals Tribunal Act 1975 (Cth) as there is no decision in this application which the Tribunal has jurisdiction to review in this application.
.............................[SGD]...........................................
Deputy President J W Constance
CATCHWORDS
PRACTICE AND PROCEDURE – JURISIDICTION – where Applicant approved to become an Australian citizen by descent – where Department later identified the Applicant did not have a parent who was an Australian citizen at the time of her birth – where annotation made pursuant to s 19A that the Applicant did not become an Australian citizen by descent – powers of Tribunal – whether a decision has been made in relation to the Applicant which the Tribunal has jurisdiction to review – no jurisdiction – application dismissed
LEGISLATION
Acts Interpretation Act 1901 (Cth) s 33
Administrative Appeals Tribunal Act 1975 (Cth) s 25
Australian Citizenship Act 2007 (Cth) ss 16, 17, 18, 19, 19A, 52
REASONS FOR DECISION
Deputy President J W Constance
21 July 2021
INTRODUCTION

The Applicant is a young child. Although documents refer to action by the Applicant, action in relation to this matter has in fact been taken on her behalf by one of her adoptive parents. However, for clarity I will refer to the relevant action as if it was taken by the Applicant personally.
References to documents in these reasons are to documents lodged in the Tribunal in accordance with section 37 of the Administrative Appeals Tribunal Act 1975 (Cth) (the AAT Act).
The Applicant was born in Sri Lanka and is a citizen of that country. In September 2020 she applied to become an Australian citizen by descent. Her application was approved by the Minister in accordance with the provisions of the Australian Citizenship Act 2007 (Cth) (the Citizenship Act).
Shortly after the approval a delegate of the Minister informed the Applicant that she was incorrectly registered as an Australian citizen and that the Departmental records had been annotated to reflect this. The reason for this annotation was stated to be that, at the time of her birth, the Applicant did not have a parent who was an Australian citizen.
In December 2020 the Applicant applied to the Tribunal to review a decision that she did not become an Australian citizen by descent.[1] I will refer to this decision as the delegate’s decision.
[1] Document T2 at 8.
The Minister has applied to have the application to the Tribunal dismissed on the basis that there is no decision which is reviewable by the Tribunal.
For the reasons which follow I have decided that the Tribunal does not have jurisdiction to review any decision in this matter. The application will be dismissed.
BACKGROUND
The Applicant is the adopted daughter of Australian citizens, Ms R and Mr M. She is not the biological child of either of her adoptive parents.
The Applicant’s application for citizenship did not disclose that she was adopted. A Pregnancy Record issued in Sri Lanka recorded that Ms R was the Applicant’s birth mother.[2] This document was lodged in support of the application for citizenship.
[2] Document T9 at 74.
By email of 19 October 2020[3] the Department of Home Affairs advised Ms R:
The application for Australian Citizenship for [the Applicant] was approved and [the Applicant] was registered as an Australian Citizen by descent on 19 October 2020.[4]
[3] Document T10 at 88.
[4] Document T10 at 88.
On 22 October 2020 the Department advised the Applicant that information had been received that Ms R was not her biological parent and that her birth mother was a named person who is a citizen of Sri Lanka.[5]
[5] Document T12 at 93.
By email of 22 November 2020 a delegate of the Minister advised the Applicant:
I am satisfied that [Mr M] and [Ms R] are not your biological parents and that they did not have a parental relationship with you at the time of your birth.
I am satisfied that you did not become an Australian citizen under Subdivision A of the Act, as you did not have a parent who was an Australian citizen at the time of your birth, and were incorrectly registered as an Australian citizen by descent.
Departmental records have been annotated to reflect you did not become an Australian citizen by descent.[6]
In the email the Delegate advised of the reasons for this decision.
[6] Document T2 at 9.
LEGISLATION
Section 25 of the Administrative Appeals Tribunal Act 1975 (Cth)
As the Tribunal was created by statute, the only jurisdiction it has is that provided by statute. To find the starting point we need to turn to subsection 25(1) of the AAT Act which provides:
Enactment may provide for applications for review of decisions
(1) An enactment may provide that applications may be made to the Tribunal:
(a) for review of decisions made in the exercise of powers conferred by that enactment; or
(b) for the review of decisions made in the exercise of powers conferred, or that may be conferred, by another enactment having effect under that enactment.
It is necessary to look to another Act of the Commonwealth Parliament to ascertain the Tribunal’s power to review particular decisions. In this case it is the Citizenship Act.
Relevant provisions of the Australian Citizenship Act 2007 (Cth)
Subsection 52(1) is the provision of the Citizenship Act which provides for applications to the Tribunal to review decisions made under that Act. It provides:
(1) An application may be made to the Administrative Appeals Tribunal for review of the following decisions:
(a) a decision under section 17 to refuse to approve a person becoming an Australian citizen;
(aa) a decision under section 19D to refuse to approve a person becoming an Australian citizen;
(b) a decision under section 24 to refuse to approve a person becoming an Australian citizen;
(c) a decision under section 25 to cancel an approval given to a person under section 24;
(d) a decision under section 30 to refuse to approve a person becoming an Australian citizen again;
(e) a decision under section 33 to refuse to approve a person renouncing his or her Australian citizenship, except a refusal because of the operation of subsection 33(5) (about war);
(f) a decision under section 34 or subsection 36(1) to revoke a person's Australian citizenship.
Paragraph 16(2)(a) provides:
(2) A person born outside Australia on or after 26 January 1949 is eligible to become an Australian citizen if:
(a) a parent of the person was an Australian citizen at the time of the birth; and
….
The section sets out other requirements for eligibility which are not relevant to this application.
Section 17 provides, in part:
(1) If a person makes an application under section 16, the Minister must, by writing, approve or refuse to approve the person becoming an Australian citizen.
(1A) The Minister must not approve the person becoming an Australian citizen unless the person is eligible to become an Australian citizen under subsection 16(2) or (3).
(2) Subject to this section, the Minister must approve the person becoming an Australian citizen if the person is eligible to become an Australian citizen under subsection 16(2) or (3).
Section 18 provides:
If the Minister approves the person becoming an Australian citizen, the Minister must register the person in the manner prescribed by the regulations.
Section 19 provides:
A person becomes an Australian citizen under this Subdivision on the day on which the Minister approves the person becoming an Australian citizen.
Section 19A provides, in part:
Despite section 19, a person does not become an Australian citizen under this Subdivision, even if the Minister approves the person becoming an Australian citizen, unless:
(a) if the person was born on or after 26 January 1949--a parent of the person was an Australian citizen at the time of the person's birth; or
…
THE ISSUE AS TO THE JURISDICTION OF THE TRIBUNAL
The issue which has arisen is, has a decision been made in relation to the Applicant which the Tribunal has jurisdiction to review?
THE ARGUMENT ON BEHALF OF THE APPLICANT
In the Applicant’s Submissions on Jurisdiction dated 29 April 2021, it was argued that:
If the Minister is aware of a fact that should lead to a rejection of the citizenship application and does not refuse the application under section 17 of the Australian Citizenship Act 2007 (Act) but then declines the application under section 19A because of the existence of that fact, that would lead to a conclusion that the Applicant would have no right to appeal to the Administrative Appeals Tribunal (Tribunal).
Whereas, if the Minister acted on that information and refused the application under section 17 of the Act, the applicant would have a right to appeal to the Tribunal as per section 52 of the Act.
The decision in this case, therefore, was a de facto decision under section 17 of the Act to refuse the application and is, therefore, reviewable in the Tribunal.
Alternatively on the Respondent's argument, the Applicant's application for citizenship remains unresolved. It has not been refused under section 17 of the Act, all that has happened is that the Minister has exercised the provision of section 19A of the Act to refuse to grant citizenship.
The status then becomes that the Applicant has a resolved application under section 19A of the Act and could apply to the Federal Circuit Court or Federal Court for a writ of mandamus to require the Minister to make a decision under section 17 of the Act to refuse the application which would be reviewable in the Tribunal.
As both these outcomes leads to an absurd result, the action of the Minister in this case is a de facto refusal under section 17 of the Act and is, therefore, reviewable by the Tribunal.[7]
[7] At [6].
Counsel for the Applicant referred me to subsection 33(1) of the Acts Interpretation Act 1901 (Cth) which provides:
Where an Act confers a power or function or imposes a duty, then the power may be exercised and the function or duty must be performed from time to time as occasion requires.
DISCUSSION
The wording of section 19A of the Citizenship Act makes it clear that a decision is not required for the section to come into operation. It is simply a statement of law which applies when certain facts exist – in this case that the Applicant was born after 26 January 1949 and that neither parent of the Applicant was an Australian citizen at the time of her birth.
As I have already said, the Tribunal has jurisdiction to review only those decisions provided for in other enactments. In this case the only decisions which can be reviewed are those set out in section 52 of the Citizenship Act. Paragraph 52(1)(a) does not assist the Applicant as there has not been a decision to refuse the Applicant becoming an Australian citizen.
I agree with the argument put on behalf of the Minister that the effect of section 19A is “to create a bar to a person becoming an Australian citizen even if they have been approved.”[8] The text and context of the section confirm that it does not modify or revoke the Minister’s decision under section 17, rather it operates on the basis that the Minister’s decision continues in force. Section 19A operates “despite the Minister’s approval”.
[8] Respondent’s Submissions on Jurisdiction dated 21 April 2021 at [20].
Further, section 19A appears in Division 2, Subdivision A of the Citizenship Act under the heading Citizenship by Descent. Division 2, Subdivision B deals with Citizenship by Conferral.
Within Subdivision B, section 25 provides for the Minister to approve an application for citizenship. Immediately following, section 25 gives the Minister power to cancel an approval in certain circumstances.
There is no equivalent section in Subdivision A; rather there is section 19A. Parliament clearly intended that an approval decision under section 17 not be cancelled.
I do not accept the Applicant’s argument that there was a de facto decision under section 17 of the Citizenship Act. There is no legal basis for such an argument and no authority for the creation of such a legal fiction was advanced. There was no decision under section 19A and, even if there was such a decision, section 52 of the Citizenship Act does not give the Tribunal the power to review it. The email of 22 November 2020 did not contain a reviewable decision, rather it contained advice as to the effect of section 19A.
It may be that the outcome the Applicant seeks can be achieved by an application to a Court. This is a matter for the Applicant. Contrary to the argument put on behalf of the Applicant, that would not be an absurd result.
CONCLUSION
In this application, there is no decision which the Tribunal has jurisdiction to review

I certify that the preceding 32 (thirty -two) paragraphs are a true copy of the reasons for the decision herein of Deputy President J W Constance

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Associate
Dated: 21 July 2021

Date(s) of hearing: 11 May 2021

Solicitors for the Applicant: R Turner, Turner Coulson Immigration Lawyers

Solicitors for the Respondent: J Hutton, Australian Government Solicitor

[2021] AATA 2407

21 July 2021

Key Legal Topics

Areas of Law

Administrative Law

Immigration

Legal Concepts

Jurisdiction

Judicial Review

Procedural Fairness

Statutory Construction

ADMINISTRATIVE APPEALS TRIBUNAL	)
)	No: 2020/8397
GENERAL DIVISION	)

Date(s) of hearing:	11 May 2021
Solicitors for the Applicant:	R Turner, Turner Coulson Immigration Lawyers
Solicitors for the Respondent:	J Hutton, Australian Government Solicitor