Erden v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (No 2) [2021] FCA 1531

Erden v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (No 2) [2021] FCA 1531

The applicant is not, and has not been since 2 October 1985, an Australian citizen because there is no evidence that a positive discretionary decision was made by the Minister (or delegate) to grant him a certificate of Australian citizenship or to include his name on a certificate; the grant of citizenship (other than by operation of law) is dependent on such a decision and the onus lies with the applicant to prove this, which the applicant did not discharge.

Jurisdiction
Australia
Judgment Date
07 December 2021
Procedural Posture
Application for Declaration of Citizenship and Associated Relief / Determination of Separate Question at First Instance
Outcome
Application dismissed. Separate question answered 'No'. Applicant to pay the respondents' costs as agreed or taxed.
Legal Topics
['australian Citizenship by Grant' 'proof of Citizenship Status' 'requirements for Grant of Citizenship' 'discretion of Minister' 'citizenship Certificates' 'inclusion of Minors on Parent Applications']
['administrative Law' 'citizenship Law'] ['australian Citizenship by Grant' 'proof of Citizenship Status' 'requirements for Grant of Citizenship' 'discretion of Minister' 'citizenship Certificates' 'inclusion of Minors on Parent Applications']

Case Brief

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Procedural Posture

Application for Declaration of Citizenship and Associated Relief / Determination of Separate Question at First Instance

Legal Issues

  1. 1 ['Whether the applicant is, or has been since 2 October 1985, an Australian citizen.' "Whether the applicant was granted citizenship as a minor included on his parents' applications for citizenship." 'Whether the grant of citizenship is dependent on the issuance of, or inclusion on, a certificate of Australian citizenship.']

Ratio Decidendi

The applicant is not, and has not been since 2 October 1985, an Australian citizen because there is no evidence that a positive discretionary decision was made by the Minister (or delegate) to grant him a certificate of Australian citizenship or to include his name on a certificate; the grant of citizenship (other than by operation of law) is dependent on such a decision and the onus lies with the applicant to prove this, which the applicant did not discharge.

Court Disposition

Application dismissed. Separate question answered 'No'. Applicant to pay the respondents' costs as agreed or taxed.

Orders

  • ['The separate question be answered: Whether the applicant is, or has been since 2 October 1985, an Australian citizen – Answer: No' 'The application be dismissed.' "The applicant pay the respondents' costs, as agreed or taxed."]