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

[2021] AATA 1105

ZQVZ and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Citizenship) [2021] AATA 1105 (30 April 2021)

Division:GENERAL DIVISION

File Number(s):      2020/4639

Re:ZQVZ

APPLICANT

AndMinister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

RESPONDENT

DECISION

Tribunal:Dr L Bygrave, Member

Date:30 April 2021

Place:Sydney

The decision under review is affirmed.

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

Dr L Bygrave, Member

CATCHWORDS

CITIZENSHIP – by descent – parent who is an Australian citizen at the time of birth – whether the parent has been present in Australia for a total period of at least 2 years at any time before the application was made – decision affirmed.

LEGISLATION

Australian Citizenship Act 2007 (Cth) s 16, 17

CASES

Forster v Jododex (1972) 127 CLR 421

Re Drake and Minister for Immigration and Ethnic Affairs (No 2) [1979] AATA 179; (1979) 2 ALD 634

SECONDARY MATERIALS

Australian Citizenship [Policy Statement] (27 November 2021)

Citizenship Procedural Instruction 21 – Australian Citizenship by Descent (1 July 2019)

REASONS FOR DECISION

Dr L Bygrave, Member

30 April 2021

INTRODUCTION

1. The applicant, ZQVZ, is two years old and a citizen of Canada.

2. On 8 January 2020, the applicant’s father applied for Australian citizenship by descent in accordance with section 16 of the Australian Citizenship Act 2007 (Cth) (the Act).

3. This application was refused by a delegate of the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs Home Affairs (the Minister) on 24 July 2020 on the basis that the applicant did not satisfy the requirement in subparagraph 16(2)(b)(i) of the Act: that she had a parent who had been present in Australia for a total period of at least two years before the date of application.

4. On 1 August 2020, the applicant’s father applied for review to the General Division of the Administrative Appeals Tribunal (the Tribunal) on her behalf.

5. The application was heard by the Tribunal on 16 April 2021. The applicant’s father attended the hearing and gave oral evidence by videoconference.

   RELEVANT LEGISLATION

6. Subsection 16(1) of the Act provides that a person may make an application to the Minister to become an Australian citizen. Pursuant to subsection 17(1) of the Act:

   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.

7. Relevant to this application, subsection 16(2) of the Act states:

   (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

   (b)if the parent was an Australian citizen under this Subdivision or Subdivision AA, or section 10B, 10C or 11 of the old Act (about citizenship by descent), at the time of the birth:

   (i)     the parent has been present in Australia (except as an unlawful non-citizen) for a total period of at least 2 years at any time before the person made the application; or

   (ii)    the person is not a national or a citizen of any country at the time the person made the application and the person has never been such a national or citizen; and

   (c)if the person is or has ever been a national or a citizen of any country, or if article 1(2)(iii) of the Stateless Persons Convention applies to the person, and the person is aged 18 or over at the time the person made the application--the Minister is satisfied that the person is of good character at the time of the Minister's decision on the application. [emphasis added]

   Australian Citizenship [Policy Statement]

8. The Australian Citizenship [Policy Statement] (Policy Statement) issued on 27 November 2020 outlines the overarching legislative requirements for the process of becoming an Australian citizen. The Policy Statement also provides context for the relevant Citizenship Procedural Instructions (CPIs) (set out below) when making decisions under the Act.

9. The rights and responsibilities of an Australian citizen are articulated in the Policy Statement as follows:

   Australian citizenship is a privilege requiring a continuing commitment to Australia. Australian citizenship is a common bond, involving reciprocal rights and obligations.

   Australian citizenship includes the right to:

   ·apply for an Australian passport and re-enter Australia freely;

   ·ask for consular assistance from an Australian consulate while overseas;

   ·vote in federal, state or territory, and local elections;

   ·vote in a Constitutional referendum or plebiscite;

   ·seek election to parliament;

   ·apply for children born overseas to become Australian citizens by descent; and

   ·apply for a job in the Australian Public Service or in the Australian Defence Force…

   The responsibilities of Australian citizenship include obligations to:

   ·obey the laws of Australia;

   ·vote in federal, state or territory, and local elections, and in a Constitutional referendum or plebiscite;

   ·defend Australia should the need arise; and

   ·serve on jury duty if called to do so.[1]

   [1] Australian Citizenship [Policy Statement], section 3.2.

10. Although I am not bound to strictly apply the Policy Statement and CPIs, these comprise government policy and should be considered unless there are cogent reasons not to do so: Re Drake and Minister for Immigration and Ethnic Affairs (No 2).[2]

    [2] [1979] AATA 179; (1979) 2 ALD 634.

    CPI 21 – Australian Citizenship by Descent

11. Relevant to this matter is CPI 21 – Australian Citizenship by Descent, which identifies the legal requirements, and related policy and procedures relevant to the consideration of Australian citizenship by descent. This includes establishing whether a parent met the legal requirements at the time of the child’s birth.

    EVIDENCE

12. The facts of this matter, as set out below, are not in dispute:

    ·The applicant was born in January 2019 and is a citizen of Canada.[3]

    ·The applicant’s father was born in Canada in November 1977 and acquired Australian citizen by descent in August 1978.[4]

    ·The applicant’s father came to Australia with his mother, an Australian citizen, as a child travelling on his mother’s passport. There is no record of this travel, but the applicant’s father has declared that he was lawfully in Australia from 1 November 1984 to 1 January 1985.[5]

    ·The applicant’s father arrived in Australia on 9 May 2014 and departed on 28 May 2015.[6] This is verified by his immigration movement details.

    [3] Exhibit T-T3, page 25.

    [4] Exhibit T-T3, pages 27-28.

    [5] Exhibit T-T3, page 28.

    [6] Exhibit R1.

13. At the Tribunal hearing, the applicant’s father confirmed that he came to Australia with his mother for a period in 1984 and 1985. However, he could not recall the exact period he was in Australia and confirmed that neither he nor his mother have any record (such as stamps in his mother’s passport) to verify this travel. The applicant’s father stated that he next travelled to Australia when he arrived in Brisbane on 9 May 2014. He said that he was employed and provided copies of his notice of assessments from the Australian Taxation Office for the financial years ending on 30 June 2014 and 30 June 2015.[7]

    [7] Exhibit T-T6, page 47 and 48.

14. The applicant’s father accepted that he departed Australia on 28 May 2015 but said that he travelled to Thailand and then came back to Australia in 2015 before he returned to Canada in April 2016. As there are no immigration records for this travel, the applicant’s father believes that he may have entered and departed Australia on his Canadian passport. He has not provided his Canadian passport with stamps to verify his time in Australia in 2015–2016 and conceded in his oral evidence to the Tribunal that he has not been present in Australia for two years prior to him lodging his daughter’s application for Australian citizenship on 8 January 2020.

15. For completeness, I also note the applicant’s father filed documents with the Tribunal to show the longevity of his family connections with Australia. While these documents support the applicant’s ancestral connection to Australia, this is not directly relevant to the issue before the Tribunal, which I now consider.

    CONSIDERATION

16. The issue for determination is whether the applicant, who was born outside Australia after 26 January 1949, satisfies the requirement in subsection 16(2) of the Act to become an Australian citizen.

17. The applicant has a parent who was an Australian citizen at the time of her birth and so satisfies paragraph 16(2)(a) of the Act. As the applicant is a citizen of Canada aged under 18 years, the provisions in subparagraph 16(2)(b)(ii) and paragraph 16(2)(c) are not applicable to her application.

18. This means the sole issue for the Tribunal to determine is whether the applicant’s ‘parent has been present in Australia (except as an unlawful non-citizen) for a total period of at least 2 years at any time before the person made the application’ as required by subparagraph 16(2)(b)(i) of the Act.

19. As noted in paragraph 12 above, the applicant’s father acquired Australian citizenship by descent in 1978. I am satisfied the evidence shows the applicant’s father was lawfully present in Australia from 9 May 2014 to 28 May 2015, a period of approximately one year and two weeks. I further find that, while the applicant’s father has provided written submissions that he spent additional time in Australia in 1985–1986 and 2015–2016, there is no documentation to verify the length of this period.  The applicant’s father conceded that he has not been present in Australia for a total period of at least two years but requested ‘an exception’ due to his daughter’s ‘long ancestral history and deep family ties’ to Australia.[8]

    [8] Exhibit A6.

20. Unfortunately for the applicant, each of the relevant provisions in subsection 16(2) of the Act are mandatory. This means that there is no discretion or exemption to the requirement that the applicant’s parent has been present in Australia for ‘a total period of at least 2 years’ at any time before her father made the application on her behalf [emphasis added]. In making this decision, I have regard to the decision of Forster v Jododex in which by Gibbs J stated:

    Whatever doubts may have originally existed, and however nicely balanced the arguments may have originally been, it is now … “better … to adhere to settled rules”. Where an instrument prescribes that a period of time must elapse between one event and another, the words “at least” or “not less than” should, unless the context or the subject matter reveals a contrary intention, be regarded as indicating that a clear or full period of time must expire between the two events.[9] [emphasis added]

    [9] (1972) 127 CLR 421 at 445.

    CONCLUSION

21. Weighing all the evidence, I am not satisfied that the applicant satisfies the requirements to become an Australian citizen by descent pursuant to section 16 of the Act. For these reasons, the applicant’s application made on 8 January 2020 must be refused.

    DECISION

22. The decision under review is affirmed.

I certify that the preceding 22 (twenty -two) paragraphs are a true copy of the reasons for the decision herein of Dr L Bygrave, Member

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

Associate

Dated: 30 April 2021

Date(s) of hearing:	16 April 2021
Applicant:	Self-represented
Solicitors for the Respondent:	Max Gao (Australian Government Solicitor)