English and Minister for Immigration and Citizenship [2010] AATA 107 (12 February 2010)

Last Updated: 12 February 2010

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2010] AATA 107

ADMINISTRATIVE APPEALS TRIBUNAL )

) No 2009/6157

GENERAL ADMINISTRATIVE DIVISION		)
	Re		CHRISTINE ENGLISH

Applicant

And

MINISTER FOR IMMIGRATION AND CITIZENSHIP

Respondent

DECISION

Tribunal

Deputy President P E Hack SC

Date 12 February 2010

Place Brisbane

Decision

The application is dismissed under s 42A(4) of the Administrative Appeals Tribunal Act 1975 (Cth).

............Signed.................
Deputy President

CATCHWORDS

CITIZENSHIP AND MIGRATION – citizenship and nationality – decision to refuse evidence of Australian citizenship – decision not reviewable – whether alternative basis of application open

JURISDICTION – reviewable decisions – decision to refuse evidence of Australian citizenship – application dismissed

Administrative Appeals Tribunal Act 1975 (Cth) s 42A(4)

Australian Citizenship Act 1948 (Cth) ss 5, 10(1), 10C, 10C(4)(c)(i)

Australian Citizenship Act 2007 (Cth), s 37

Minister for Immigration and Multicultural and Indigenous Affairs v Walsh [2002] FCAFC 205; (2002) 125 FCR 31

Re Minister for Immigration and Multicultural and Indigenous Affairs, ex parte Ame [2005] HCA 36; (2005) 222 CLR 439

REASONS FOR DECISION

12 February 2010

Deputy President P E Hack SC

1. On 31 December 2009 the Tribunal received correspondence from Ms Christine English. The correspondence was treated as an application by Ms English to review a decision of a delegate of the respondent, the Minister for Immigration and Citizenship, made on 8 December 2009, to refuse Ms English’s application, made pursuant to s 37 of the Australian Citizenship Act 2007 (Cth), “for a notice stating that the person is an Australian citizen”.
2. Because the jurisdiction of the Tribunal was not apparent, Ms English was given the notice required by s 42A(4) of the Administrative Appeals Tribunal Act 1975 (Cth), and the matter set down for a hearing on the question of jurisdiction on 22 January 2010. The Minister appeared by solicitors and made helpful submissions. In the course of the hearing Ms English appeared to accept, correctly in my view, that there was no jurisdiction but raised the question whether an earlier decision to refuse Ms English’s application for registration of citizenship by descent, made on 22 August 2006, might be a decision reviewable by the Tribunal. The application was adjourned to 5 February 2010 to allow Ms English and the Minister to consider the matter and make submissions in writing.
3. The matter came on for hearing again on 5 February 2010. On that occasion the submissions for the Minister focussed on the delay between the decision of 22 August 2006 and any attempt by Ms English to seek a review of it. The Minister identified that no application in writing for an extension of time had been made, as required by s 29(7) of the Administrative Appeals Tribunal Act, that Ms English had not explained the lengthy delay in seeking review and in the apparent absence of merit in the application.
4. The absence of a written application, and of an explanation for a delay, would not ordinarily deter the Tribunal if satisfied of the underlying merit of the application. It is then preferable to concentrate on that question.
5. The application which Ms English made in 2006 was for Australian citizenship by descent. That was dealt with at that time by s 10C of the Australian Citizenship Act 1948 (Cth) which provided:

“(1) A person who is registered under this section is an Australian citizen.

(2) A person may apply to the Minister to be registered under this section.

(3) The application must be in accordance with the approved form.

(4) The Minister must register, in the prescribed manner, an applicant for registration under this section if:

(a) a natural parent of the applicant was an Australian citizen at the time of the birth of the applicant; and

(b) that parent:

(i) is an Australian citizen at the time an application under this section is made; or

(ii) is dead and at the time of his or her death was an Australian citizen; and

(c) the applicant:

(i) was born outside Australia on or after 26 January 1949; and

(ii) is aged 18 years or over on the day on which this section commences; and

(iii) failed for an acceptable reason to become registered as an Australian citizen under:

(A) section 10B; or

(B) section 11 of this Act as in force at any time before the commencement of section 10B; and

(d) the Minister is satisfied that the applicant is of good character.”

6. Ms English was born in 1973 in Port Moresby which was in the province of Papua. Prior to the independence of Papua New Guinea in 1975, Papua was considered part of Australia for the purposes of the Australian Citizenship Act because the definition of “Australia” in s 5 included territories that were not trust territories. By operation of s 10(1) of that Act, a person born in Australia after the commencement of the Act was an Australian citizen by birth. Thus Ms English acquired Australian citizenship by birth[1] although she did not have a right to reside in Australia. Subsequently that citizenship was lost on the independence of Papua New Guinea by operation of that country’s Constitution and also by regulation 4 of the Papua New Guinea Independence (Australian Citizenship) Regulations 1975 (Cth).
7. But because Ms English was born in what was regarded as Australia, her application for citizenship by descent faces an insurmountable difficulty given she cannot satisfy s 10C(4)(c)(i) of the Australian Citizenship Act. It is not a question of discretion. Any application to review the decision of 22 August 2006 would be bound to fail. Thus, even if Ms English were to make an application in writing to extend the time within which to seek a review of the decision of 22 August 2006, there would be no utility in granting that application because the application for review would be bound to fail.
8. Because the only application before me is one where the Tribunal lacks jurisdiction the only order I need make is to dismiss the application under s 42A(4) of the Administrative Appeals Tribunal Act. I should record my thanks to Mr Orford, the solicitor for the Minister, for the considerable assistance provided by his written submissions.
   

I certify that the 8 preceding paragraphs are a true copy of the reasons for the decision herein of Deputy President P E Hack SC

Signed: ..............Signed......................................................

Associate

Date of Hearing 5 February 2010

Date of Decision 12 February 2010

Applicant Self-represented

Solicitors for the Respondent Clayton Utz

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[1] See e.g. Minister for Immigration and Multicultural and Indigenous Affairs v Walsh [2002] FCAFC 205; (2002) 125 FCR 31; Re Minister for Immigration and Multicultural and Indigenous Affairs, ex parte Ame [2005] HCA 36; (2005) 222 CLR 439.