Desira and Minister for Immigration and Multicultural Affairs [2000] AATA 32 (24 January 2000)

Last Updated: 4 February 2000

DECISION AND REASONS FOR DECISION [2000] AATA 32

ADMINISTRATIVE APPEALS TRIBUNAL )

) N^o V99/622

GENERAL APPEALS DIVISION )

Re Sandra DESIRA

Applicant

And MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

Respondent

DECISION

Tribunal Mrs Joan Dwyer, Senior Member

Date 24 January 2000

Place Melbourne

Decision The Tribunal affirms the decision under review.

(Sgnd) Joan Dwyer

Senior Member

CITIZENSHIP - application to resume citizenship under s 23AA - applicant born in Australia of Maltese parents - dual nationality acquired at birth - moved with parents to live in Malta at age eight - renunciation of Australian citizenship required before age 19 in order to retain Maltese citizenship - declaration of renunciation of Australian citizenship lodged before age 19 - application to resume Australian citizenship made and refused - whether applicant satisfies statutory preconditions in s 23AA - whether applicant "acquired" foreign citizenship as a result of renunciation or whether she retained Maltese citizenship - meaning of "acquires" - decision affirmed

Minister for Immigration, Local Government and Ethnic Affairs v Gugerli (1992) 15 AAR 483

Re Allan and Department of Foreign Affairs (1986) 5 AAR 432

Re Gugerli and Department of Immigration and Multicultural Affairs (1990) 13 AAR 40

Australian Citizenship Act 1948 ss 17 and 23AA(1)

Constitution of Malta ss 25(2) and 27(1)

REASONS FOR DECISION

24 January 2000 Mrs Joan Dwyer, Senior Member

1. This is the hearing of a legal issue arising in respect of an application under s 52A(1)(e) of the Australian Citizenship Act 1948 ("the Act") for review of a decision of a delegate of the Minister for Immigration and Multicultural Affairs made 14 May 1999. The reviewable decision refused Ms Desira's application to resume Australian citizenship under s 23AA, 23A, or 23B of the Act.

2. At the request of the parties, the Tribunal agreed to deal with the legal issues as to the construction of s 23AA of the Act, 'on the papers'. The applicant's solicitor by letter dated 18 October 1999 proposed that the legal issues be dealt with on the papers as a "threshold" issue, and that the matter only proceed to a hearing concerning the nature and extent of Ms Desira's ties to Australia if she succeeded on the threshold issues as to the application of s 23AA. The respondent consented to that proposal by letter dated 3 November 1999. The Tribunal had before it the material lodged by the respondent pursuant to s 37 of the Administrative Appeals Tribunal Act 1975 and the written submissions of the parties contained in the Statements of Facts and Contentions lodged on behalf of the applicant on 21 October 1999 and by the respondent on 3 November 1999.

3. Section 23AA of the Act, so far as relevant provides:

Persons may resume citizenship lost in certain circumstances

23AA. (1) Where:

(a) a person:

(i) has done a voluntary and formal act, other than marriage, by virtue of which the person acquired the nationality or citizenship of a country other than Australia; or

(ii) has done any act or thing:

(A) the sole or dominant purpose of which; and

(B) the effect of which;

was or is to acquire the nationality or citizenship of a foreign country;

being an act or thing that resulted in the person ceasing to be an Australian citizen;

(b) the person furnishes to the Minister a statement, in writing, to the effect that:

(i) if the person had not done the act or thing, the person would have suffered significant hardship or detriment; or

(ii) at the time when the person did the act or thing the person did not know that he or she would, as a consequence of doing the act or thing, cease to be an Australian citizen;

and also stating that the person:

(iii) has been present in Australia (otherwise than as a prohibited immigrant, as a prohibited non-citizen, as an illegal entrant, as an unlawful non-citizen, or in contravention of a law of a prescribed territory) for a period of, or for periods amounting in the aggregate to, not less than 2 years;

(iv) intends that:

(A) if the person again becomes an Australian citizen and is residing in Australia at the time when the person so becomes an Australian citizen, the person will continue to reside in Australia after so becoming an Australian citizen; or

(B) if the person again becomes an Australian citizen and is not residing in Australia at the time when the person so becomes an Australian citizen, the person will commence to reside in Australia after so becoming an Australian citizen and before the expiration of the period of 3 years commencing on the day on which the statement is made; and

(v) has maintained a close and continuing association with Australia; and

(c) the person furnishes to the Minister together with the statement a declaration in the prescribed form that the person wishes to resume Australian citizenship;

the Minister may, in the Minister's discretion, if the Minister is satisfied:

(d) as to the truth of the matters contained in the statement; and

(e) in a case where the person has claimed that, if the person had not done the act or thing that resulted in the person ceasing to be an Australian citizen, the person would have suffered hardship or detriment of an economic nature - that the person's circumstances were such as to compel the person to do that act or thing;

register the declaration in the prescribed manner and, upon the registration of the declaration, the person making the declaration again becomes an Australian citizen.

4. There is no dispute about the following facts. Ms Desira, was born on the 14 January 1975 at Sunshine, Victoria, Australia. She acquired Australian citizenship at birth. Both her parents were born in Malta and retained Maltese citizenship at the date of her birth. As her father was a Maltese citizen, Ms Desira "became a Maltese citizen at the date of her birth under s 25(2) of the Constitution of Malta" (T13 p28). On 11 May 1983, when she was 8 years old Ms Desira left Australia with her parents who had decided to return to live in Malta.

5. Under Maltese law a person may have dual nationality until the person attains the age of 19 years. Then he or she will cease to be a citizen of Malta unless he or she has renounced citizenship of the other country. Section 27(1) of the Constitution of Malta, so far as relevant, provides (T13 p48):

27. (1) Any person who, upon his attainment of the age of eighteen years, is a citizen of Malta and also a citizen of some country other than Malta shall cease to be a citizen of Malta upon the attainment of the age of nineteen years....unless he has renounced his citizenship of that other country . . .

6. Ms Desira attained the age of 18 years on 14 January 1993. It appears that prior to that date she had already been advised by a letter dated 16 September 1991 that in order to retain Maltese citizenship she was required, in accordance with s 27(1) of the Constitution of Malta to (T6 p17 & T7 p18), to renounce any other citizenship held by her before she turned nineteen years of age. On 15 January 1993 and 9 September 1993, Ms Desira was sent further letters from the Office of the Prime Minister, Malta, reminding her that in order to retain Maltese citizenship she must renounce her Australian citizenship before she attained the age of 19. The letters also stated that should she fail to do so she would automatically cease to be a citizen of Malta.

7. On 6 January 1994, Ms Desira lodged a declaration of renunciation of her Australian citizenship under s 18 of the Act, with the Australian High Commission in Malta (T8 pp20-21). It was registered with the Department of Immigration and Ethnic Affairs, Canberra on 16 February 1994. Ms Desira was advised by letter from the Australian High Commission, Malta that she had ceased to be an Australian citizen under s 18 of the Act from the date of registration, 16 February 1994 (T10-p28).

8. On 20 September 1998 Ms Desira returned to Australia. She was here when she lodged her application to resume Australian citizenship on 18 December 1998. In a letter dated 4 March 1999 (T15 p55) in support of that application, her solicitor pointed out that at that time her current visa only extended to 30 March 1999. Ms Desira was still in Australia on 18 October 1999, but her solicitor advised by letter dated 18 October 1999, forming part of the document containing the applicant's Statement of Facts and Contentions, that she intended returning to Malta on 13 November 1999.

9. On 14 May 1999 Ms Desira was informed that her application to resume Australian citizenship was refused. The delegate of the Minister of the Department of Immigration and Multicultural Affairs gave the following reasons: (T18 pp62-63):

Reasons

Resumption of Australian citizenship under section 23AA is only possible if, interalia, a person:

(i) has done a voluntary and formal act, other than marriage, by virtue of which the person acquired the nationality or citizenship of a country other than Australia; or

(ii) has done any act or thing the sole or dominant purpose of which and the effect of which;

was or is to acquire the nationality or citizenship of a foreign country; being an act or thing that resulted in the person ceasing to be an Australian citizen.

Ms Desira did not do any act or thing in order to acquire the citizenship of another country, she already had Maltese citizenship. In order to retain her Maltese citizenship, she renounced her Australian citizenship under section 18 of the Act. Consequently, as she does not meet the requirements of section 23AA of the Act, her application to resume Australian citizenship is refused.

10. The first contention of the applicant's solicitor was that as Ms Desira did not cease to be an Australian citizen until 16 February 1994, which was after her nineteenth birthday, she had automatically lost her Maltese citizenship by that date under s 27(1) of the Constitution of Malta. It was further contended that the purported registration of the renunciation of Australian citizenship was unlawful, as it breached s 18(6) of the Act which states that the Minister shall not register a declaration unless he is satisfied that the person is or will become a national of a foreign country if the declaration is registered. The applicant's solicitor asked the Tribunal to find that s 23AA had no application as there was no effective renunciation and the applicant remains an Australian citizen.

11. It is a matter of concern that in making that submission the applicant's solicitor relied on parts of a letter dated 10 February 1983 from the Head of the Immigration and Nationality Branch, Malta (T docs p36) as support for his proposition, but if he had quoted the whole letter it would have clearly contradicted his submission. The letter reads in full:

I am to refer to your letter of 31^st January 1983 regarding the renunciation of Australian citizenship prior to a person's nineteenth birthday.

Provided such a person will have finalized all the renunciation procedures under Australian law to your complete satisfaction before his nineteenth birthday, it does not matter if his renunciation declaration is registered after that day, that is, he would be deemed to have retained his citizenship of Malta. (emphasis added)

12. On 7 April 1999 the Director of the Department for Citizenship and Expatriate Affairs of the Ministry for Home Affairs, Malta confirmed that the letter of 10 February 1993 still set out the position according to Maltese Law (T docs p35). That would indicate that Ms Desira did not automatically cease to be a citizen of Malta on her nineteenth birthday as she had renounced her Australian citizenship and finalised all the renunciation procedures under Australian law, so far as they were under her control, before her nineteenth birthday. The T documents do include a document which conflicts with the letters at T docs pp35 and 36. It is a letter dated 23 February 1999 from the Consul-General of Malta to Ms Desira (T13 p38). It states that Ms Desira ceased to be a citizen of Malta when she "reached the age of 18 years." There does seem to be some confusion in that letter but this Tribunal has no power to make any determination as to the nationality of Ms Desira according to Maltese Law.

13. Davies J said in Minister for Immigration, Local Government and Ethnic Affairs v Gugerli (1992) 15 AAR 483 at p492:

The Administrative Appeals Tribunal has no general jurisdiction to declare what is or is not a person's citizenship.

It would be an error of law for this Tribunal to make a declaration as to Ms Desira's nationality when that is not in issue. There has never been any application for review of the Minister's decision under s 18, to register Ms Desira's renunciation of citizenship on 16 February 1994. I do not accept the first contention of the applicant that the operation of s 23AA of the Act does not arise.

14. The solicitor for Ms Desira submitted in his Statement of Facts and Contentions, contention 2 that the "approach of the decision-maker....involved an unnecessarily narrow construction of s 23AA of the Act." He submitted:

[P]rior to her renunciation, the applicant did not have "full" Maltese citizenship. This is because her ability to maintain her Maltese citizenship was subject to her renouncing her foreign citizenship. Assuming a valid renunciation before her nineteenth birthday, following that renunciation the nature of the applicant's Maltese citizenship changed and she obtained "full title". Until then, her Maltese citizenship was merely conditional or "inchoate" and depended upon her making a choice between Australian and Maltese nationality. As a result of the renunciation of Australian citizenship, the applicant acquired "full" Maltese citizenship. Accordingly, the terms of s 23AA apply and the evidence of the applicant's ties to Australia should be considered by the Tribunal.

Finally it is submitted that it is unclear whether the legislature intended a distinction to be made between a person whose actions have the effect of "acquiring" a foreign nationality and one who must renounce Australian citizenship in order to retain a second nationality that was also acquired by birth. Indeed, it would appear that a person's actions in being forced to renounce Australian citizenship in order to retain a second citizenship, which they have also acquired at birth, is less "disloyal" to Australia than the actions of a person who, having been born with only Australian citizenship subsequently, as an adult, does something to acquire the nationality or citizenship of a foreign country.

15. The threshold issue in this matter is whether Ms Desira is able "to satisfy" either of the statutory preconditions in s 23AA (1) (a). Unless she can satisfy either sub-paragraph 23AA (1) (a) (i) or (ii), she does not fall within s 23AA. In that event neither the Minister nor this Tribunal has power under s 23AA to register a declaration that she wishes to resume Australian citizenship, so that she "again becomes an Australian citizen".

16. The sub-paragraphs of s 23AA (1) (a) require that Ms Desira have done a "voluntary and formal act" (sub-paragraph (i)) or have "done any act or thing" (sub-paragraph (ii)) by which she "acquired" (sub-paragraph (i)), or the effect of which was "to acquire" (sub-paragraph (ii)) the nationality or citizenship of a foreign country. The contention of the respondent is that as Ms Desira had Maltese citizenship from birth, her act of renouncing her Australian citizenship was not an act by virtue of which she "acquired" Maltese citizenship, nor was it done "to acquire" Maltese citizenship. It was done to retain rather than to acquire Maltese citizenship.

17. The Tribunal in Re Allan and Department of Foreign Affairs (1986) 5 AAR 432 considered the meaning of the word "acquires" in the context of acquiring citizenship of a foreign country. Mr Allan, who was born in Australia, but had a grandmother born in Ireland, came within the categories of persons declared to be Irish citizens by s 6 of the Irish Nationality and Citizenship Act 1956, although it did not confer Irish citizenship unless his birth was registered in accordance with s 7(2) of the Act. In 1979 Mr Allan registered his birth. The respondent claimed that by doing so he had ceased to be an Australian citizen under s 17 of the Act which provided that an Australian citizen who, ". . . by some voluntary and formal act other than marriage, acquires the . . . citizenship of a country other than Australia, shall thereupon cease to be an Australian citizen." Mr Allan submitted that his birth registration constituted 'activation' rather than the acquisition of citizenship. The Tribunal found that he acquired Irish citizenship by the act of making the request for registration and thereby ceased to be an Australian citizen.

18. The Tribunal in Re Allan referred to the Shorter Oxford English Dictionary which gave two meanings of the word "acquire". The Tribunal said at p439:

The Shorter Oxford English Dictionary gives two meanings of the word. The first is "gain, or get as one's own (by one's own exertions or qualities)"; the second is "to receive, to come into possession of". We consider that the second meaning is more appropriate to the context of section 17, although, because of the requirement that citizenship be acquired by the person's voluntary and formal act, the first is not inappropriate.

19. The respondent, in its Statement of Facts and Contentions, relied upon Minister for Immigration, Local Government and Ethnic Affairs v Gugerli and Re Gugerli and Department of Immigration and Multicultural Affairs (1990) 13 AAR 40. In that matter the Tribunal was considering whether an Australian citizen, whose mother had been a Swiss national, had ceased to be an Australian citizen under s 17 of the Act because she had sought recognition of her Swiss citizenship. The Tribunal said at p49:

I am not satisfied in the present circumstances that what the applicant did in Switzerland in 1985 was anything other than a successful quest for recognition of what she believed to be her rights since birth. Citizenship by descent is not unknown in Australian law. Indeed it is specifically recognised by s 10B of the Act. The applicant, it might be said, had a congeries of inchoate rights which she inherited and which needed only certain administrative acts to formalise and record them in a way that could be shown to others. What she did was not to acquire something new, outside the parameters of her own birth and experience and through her own qualities alone. If she had done that (for example by acquiring a third nationality) then undoubtedly s 17 would have had effect. In my view, however, the words of this section are not adequate to express the legal significance of the steps that she took. I do not consider therefore that she has ceased to be an Australian citizen at any time.

20. On appeal Davies J agreed that there is a distinction between acquiring citizenship and acquiring recognition of a citizenship which has already been acquired. He said at 15 AAR p489:

It follows that the sole or dominant purpose of Mrs Gugerli's act in applying for recognition of Swiss citizenship was not to acquire Swiss nationality, but merely to acquire recognition of a status which she understood herself already to have. .... The application form that she signed was not in terms an application for citizenship but an application for recognition of Swiss citizenship.

21. In the present matter the respondent submitted that the applicant "retained" rather than "acquired" her status as a Maltese citizen. On the evidence that submission is clearly correct. Ms Desira did not "gain or get as [her] own", nor did she "receive, or come into possession of" Maltese citizenship, by renouncing her Australian citizenship. What she did was retain her Maltese citizenship, and avoid ceasing to be a Maltese citizen, which would otherwise have occurred when she attained the age of 19.

22. The applicant's solicitor submitted that prior to her renunciation Ms Desira did not have "full" Maltese citizenship; that it was conditional or "inchoate" depending upon her making a choice on attaining the age of nineteen at which point, having renounced Australian citizenship, she acquired "full" Maltese citizenship (Statement of Facts and Contentions p4). However those concepts of "conditional" or "inchoate" citizenship are inconsistent with s 25(2) of the Constitution of Malta under which Ms Desira acquired Maltese citizenship. It provides:

A person born outside Malta on or after the appointed day [21 September 1964] shall become a citizen of Malta at the date of his birth:

(a) in the case of a person born on or before the 31^st July, 1989, if at the date of such person's birth, his father is a citizen of Malta otherwise than by virtue of this subsection or subsection (2) of section 22of this constitution; and

. . .

23. I am satisfied that Ms Desira took the step of renouncing her Australian citizenship, not to acquire but to retain her Maltese citizenship. Thus s 23AA has no application and the decision under review must be affirmed.

24. The applicant's solicitor in his Statement of Facts and Contentions suggested that if the Tribunal rejected his arguments and dismissed the application [or affirmed the decision], the harsh consequence for Ms Desira of being unable to resume her Australian citizenship, may be unintended and may result from an anomaly in the legislation. It is difficult to see any logical reason why the ameliorative effect of s 23AA should be available to a person who, in order to avoid suffering hardship or detriment, renounces Australian citizenship in order to acquire the nationality or citizenship of a foreign country, but should not be available to a person who, in order to avoid suffering hardship or detriment, renounces Australian citizenship in order to retain a dual nationality or citizenship, which was acquired at birth. As Davies J pointed out in Gugerli, at p489, the Act has been amended, "no doubt to overcome problems such as were considered in Re Allan." Perhaps consideration should be given to whether a further amendment would be appropriate to overcome the problem encountered by Ms Desira as a result of her renunciation of Australian citizenship.

I certify that the 24 preceding paragraphs are a true copy of the reasons for the decision herein of Mrs Joan Dwyer, Senior Member

Signed: Anne O'Rourke

Associate

Date of Decision 24 January 2000

Counsel for the Applicant Nil

Solicitor for the Applicant Erskine Rodan and Associates

Counsel for the Respondent Nil

Solicitor for the Respondent Director of Litigation Section

Immigration & Multicultural Affairs