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Administrative Appeals Tribunal of Australia |
Last Updated: 31 January 2003
ADMINISTRATIVE APPEALS TRIBUNAL )
GENERAL ADMINISTRATIVE DIVISION |
) | |
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Re |
ELIASH GLICK |
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And |
MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS |
Tribunal |
Mr M J Sassella, Senior Member |
Decision
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The tribunal affirms the decision under review. |
CITIZENSHIP - resumption of Australian citizenship - Australian citizenship lost when applicant acquired Israeli citizenship - whether applicant satisfied requirement that he intended to return to reside permanently in Australia within three years of making a statement included in his application for resumption of Australian citizenship - defects in drafting of advice and forms provided to applicant by relevant government department
Australian Citizenship Act 1948 ss 17(1), 23AA
Australian Citizenship Legislation Amendment Act 2002 Schedule 1
Nationality and Citizenship Act 1948
Citizenship Law (Temporary Provision) 1998 (Israel)
28 November 2002 |
Mr M J Sassella, Senior Member |
|
THE APPLICATION
1. This is an application to the Administrative Appeals Tribunal ("the tribunal") by Eliash Glick, born 1 July 1931 (T7/33), for review a decision dated 22 May 2002 (T2) by a delegate of the Minister for Immigration and Multicultural and Indigenous Affairs ("the respondent") refusing Mr Glick's application to resume his Australian citizenship.
THE HEARING
2. The tribunal convened in Sydney a hearing in this matter on 16 October 2002. The applicant represented himself, assisted by Ms M Rocheta, a niece. Solicitor Kiran Griwal represented the respondent. The tribunal heard oral evidence from Mr Glick and took into evidence the following documents:
Exhibit TD1 - Section 37 Statement and associated documents (exhibits T1 - T8) provided by the respondent.
Exhibit A1 - Letter dated 16 October 2002 from the applicant to the tribunal.
Exhibit A2 - Electronic mail message dated 19 August 2002 from the applicant to the tribunal.
Exhibit A3 - Electronic mail message dated 8 September 2002 from the applicant to the respondent's solicitors.
Exhibit A4 - Extract from form, "Declaration of desire to resume citizenship under section 23AA, 23A or 23B".
Exhibit R1 - Respondent's statement of facts and contentions, 21 August 2002.
FINDINGS ON MATERIAL QUESTIONS OF FACT WITH REFERENCE TO THE EVIDENCE AND OTHER MATERIAL IN SUPPORT OF THOSE FINDINGS
3. The tribunal finds that Mr Glick was born in Brisbane, Australia on 1 July 1931 (T7/36). At birth he acquired British citizenship (ex R1).
4. On 26 January 1948 Mr Glick became an Australian citizen with the entry into force of the Nationality and Citizenship Act 1948 (T3/7).
5. In 1959 Mr Glick moved to Israel but did not seek Israeli citizenship (T1/5).
6. On 17 April 1961 Shlomo Reuven Glick, the applicant's son, was born in Israel (T7/39). On 7 February 1963 Shlomo Reuven Glick was registered at the Australian Embassy in Tel-Aviv as an Australian citizen (T7/39).
7. In 1963 the applicant signed a declaration stating that he did not intend to become an Israeli citizen (T7/33, 38).
8. In October 1998 the Israeli Government temporarily amended the Israeli citizenship law so that, for a year, it was easier for an Israeli immigrant to attain citizenship without losing previous citizenship. "It was introduced for those people who had previously declared to the Israeli authorities under s, 2(c)2 of the Israeli nationality law that it was not their intention to become Israeli citizens in order to be granted Israeli permanent residence" (T6). Under the Citizenship Law (Temporary Provision) 1998 (Israel) permanent residents could gain Israeli citizenship through two methods:
* A permanent resident could give notification that a declaration made on entry to Israel was made inadvertently. This notification would revoke the original declaration and Israeli citizenship would be granted.
* The Israeli Minister of the Interior could revoke the declaration of the permanent resident if convinced that the declaration had been made inadvertently (T6).
9. Some time in 1998 or 1999 Mr Glick gave notification that the declaration he made on entry to Israel was made inadvertently and on 14 April 1999 he obtained Israeli citizenship (T7/37).
10. Section 17 of the Australian Citizenship Act 1948 ("the Act")[1] as it was before 4 April 2002[2] was as follows:
Loss of citizenship on acquisition of another nationality
17 (1) A person, being an Australian citizen who has attained the age of 18 years, who does any act or thing:
(a) the sole or dominant purpose of which; and
(b) the effect of which;
is to acquire the nationality or citizenship of a foreign country, shall, upon that acquisition, cease to be an Australian citizen.
(2) Subsection (1) does not apply in relation to an act of marriage.
11. The tribunal notes that the effect of Mr Glick executing his declaration for the Israeli authorities was that he performed an act, the sole or dominant purpose of which, and the effect of which, was to acquire the citizenship of a foreign country, viz Israel. Thus, Mr Glick ceased to be an Australian citizen on 14 April 1999. This was accepted by both parties.
12. Mr Glick was unaware that the consequence of his accepting the offer of Israeli citizenship was that he would lose his Australian citizenship (T1/5; ex R1/4).
13. Mr Glick became aware that he had lost his Australian citizenship and "immediately submitted a request for resumption" (T1/5). That request is T7, dated 29 October 2001.
14. The request was in the form of a Department of Immigration and Multicultural and Indigenous Affairs ("DIMIA") document, "Declaration of desire to resume Australian citizenship under section 23AA, 23A or 23B" (T7/33; ex A4). In addition to various elements of fact listed above, T7 contained the following relevant material:
* The applicant was outside Australia in October 2001. He intended to return to Australia in January 2002. He was asked in question 12:
"Do you intend to continue living in Australia when you return?" He answered "No".
* He had maintained a close and continuing association with Australia since 1959 by contact with family and relatives living in Australia and by friendships with, and visits to, residents in Australia. He also said that Australia is his "motherland" and he is proud of his Australian heritage. He said he cherished the moral values and codes of conduct he acquired here as a boy and in the Boys' Scouts. He said his wife and he fly to Australia quite frequently to visit family, relatives and friends, and to take pleasure in the ongoing reality of "advance Australia fair".. When in Australia Mr and Mrs Glick visit the graves of Mr Glick's parents in Melbourne. He referred to his son being an Australian citizen by descent and that son's son having been born in Australia.
* Mr Glick had been prepared to suffer disadvantage in Israel rather than risk the loss of his Australian citizenship. He wrote (T7/38) that from 1986 to 1991 he could not find suitable employment. Both Elisra and Israel aircraft industries offered him a position as a senior technical writer of military communications manuals, provided he obtained a security clearance. However, to seek a security clearance he had to become an Israeli citizen. He did not take that step because he did not want to lose Australian citizenship.
15. DIMIA passenger movement reports showed that Mr Glick had spent the following periods in Australia: 4 September to 6 October 1991, 23 October to 13 November 1996 (T8). In oral evidence Mr Glick said that he visited Australia also in 1968, 1971, 1974 and 1986. He said that each trip lasted "a couple of months". He has done no work in Australia since 1959.
16. Resumption of Australian citizenship is regulated by ss 23AA, 23AB, 23A and 23B of the Act. Of these sections, s 23AA applies where a person has lost citizenship through the operation of s 17 of the Act:
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; and
(f) that the person is of good character;
register the declaration in the prescribed manner and, upon the registration of the declaration, the person making the declaration again becomes an Australian citizen.
(2) The Minister may, in the Minister's discretion, upon application in accordance with the approved form, include in a declaration registered under subsection (1), either at the time of registering the declaration or by later amending the declaration, the name of a child:
(a) who has not attained the age of 18 years;
(b) of whom the person who made the declaration is a responsible parent; and
(c) who ceased to be an Australian citizen by reason of the person who made the declaration ceasing to be an Australian citizen;
and, upon the inclusion of the name of the child in the declaration, the child again becomes an Australian citizen.
17. The tribunal finds that s 23AA(1)(a) has been satisfied in that Mr Glick lost his citizenship through the operation of s 17 of the Act (see paragraphs 10 and 11 above).
18. The tribunal finds that s 23AA(1)(b)(ii) and (iii) have been satisfied in that Mr Glick has furnished the Minister with a statement that he did not know that, as a consequence of providing the notification to Israeli authorities, he would cease to be an Australian citizen (see paragraph 12 above). Mr Glick has also spent more than two years in Australia entirely lawfully.
19. The tribunal finds that s 23AA(1)(b)(v) has been satisfied in that Mr Glick has maintained a close and continuing association with Australia (see the second bullet in paragraph 14 above).
20. The tribunal finds that s 23AA(1)(c) has been satisfied in that Mr Glick furnished the Minister with a declaration in the prescribed form that he wished to resume Australian citizenship (see paragraph 14 above).
21. The only issue within Mr Glick's control in s 23AA requiring attention is that arising from s 23AA(1)(b)(iv). As Mr Glick was not resident in Australia when he lodged his declaration, subsubparagraph (B) applies. Mr Glick must, at the time of lodging his declaration, have intended that, when he again became an Australian citizen, he would commence to reside in Australia after becoming a citizen "before the expiration of 3 years commencing on the day on which the statement [referred to in paragraph 18 above was] made".
22. The material on this matter is as follows. First, the delegate took the applicant's answer to the question in bullet point one of paragraph 14 above to mean that Mr Glick did not intend to commence residing in Australia within three years of the date of application for resumption (T2; T3/9).
23. On 19 August 2002 Mr Glick wrote to the tribunal (ex A2) stating that he wished to inform the respondent that if his citizenship is resumed he intended to "return to Australia to live within 3 years of the date of resumption".. The tribunal pauses to comment that this was perhaps an unfortunate document because it identified the incorrect start point for calculating the three years. It placed that point as at the date of resumption, not the date of the furnishing of the statement, as required by the Act.
24. On 8 September 2002 the applicant wrote to the respondent's solicitors (ex A3) pointing out that the question in bullet point one of paragraph 14 above was defective and his answer to that question may have been misunderstood. He wrote:
"On re-examining my application for resumption..., I now realize that my answer to Question 12 evidently led the delegated officer to mistakenly conclude that I `did not intend to reside in Australia within three years'....
"The first part of Question 12 was: 'When do you intend to return to Australia?' At that time, I intended to return for a visit in a few months, so my answer was 'Jan 2002'. The second part of Question 12 was: `Do you intend to continue living in Australia after you return?'
"My negative answer to that question, which makes no mention of the 3-year period, does not contradict the fact that I intend to reside in Australia within 3 years."
25. The tribunal pauses to observe that this is fair comment on Mr Glick's part. Question 12 was not drafted appropriately to ensure that relevant information was provided in the answer. In oral evidence Mr Glick told the tribunal that he had an intention to return to live in Australia when he completed the form in T7 but he did not mention that intention because the form did not ask him to do so. Counsel for the respondent put to Mr Glick that, even after receiving the reasons from the respondent for the rejection of his application, he had written the reasons for the tribunal appeal (T1/5) on 4 June 2002 without referring to the intention to return to reside in Australia. He was asked also about the delegate's statement of reasons and the accompanying rejection letter. It was suggested that these put him on notice regarding the problem he was facing but he still did not seek to correct the position until some time later. Mr Glick replied that he had been confused by the inappropriate framing of question 12. He said that he was in shock when he received the rejection letter. He said his thoughts were in Australia every day and he could not believe he had been refused citizenship. Mr Glick told the tribunal that he first understood the importance of his intention to return to Australia to reside when he came to the tribunal's first preliminary conference. That was why he had sent ex A2 (see paragraph 23 above).
26. On 16 October 2002 Mr Glick wrote to the tribunal (ex A1) reiterating that, not only was question 12 badly worded, but the question and answer sheet supplied with the form in T7 was misleading. This appears in ex A4 and, among other things, presents the requirement of an intention to resume residence in Australia as:
"Further requirements are that the person:
...
* states that they intend to ... commence residing in Australia within 3 years after the date of resumption; ..."
27. Again, the problem here is the reference to "resumption" of citizenship as the commencement point of the three-year period. The correct commencement is the date of the statement made as part of the application for resumption.
28. In ex A1 Mr Glick again expressed his arguments regarding his attachment to Australia in support of his application for review.
29. Counsel for the respondent put to Mr Glick that he did not intend to return to Australia when he made his application for resumption of citizenship. Mr Glick responded that in the years in which he had lived in a democratic country surrounded by 300 million fanatics under autocratic regimes his appreciation of Australia had grown. He said that Australia was good for liberalism and for giving the other man a fair go. He said that, if it meant coming to live in Australia, he would do that in order to resume his Australian citizenship. His niece, who was assisting him at the tribunal, stated that Mr Glick's brother has had Alzheimer's disease and there has been much discussion over the years concerning Mr Glick returning to live in Australia for a lengthy period or permanently.
30. The tribunal asked Mr Glick why the had elected to stay in Israel given his fondness for Australia. Mr Glick responded that he sees Australia as his motherland and Israel as the land of his forefathers. He said that he takes an active interest in Australia and Australian sports success, etc in Israel.
31. Mr Glick told the tribunal that he has accommodation in Australia with relatives.
32. In answer to a direct question from the tribunal, Mr Glick said that when he filled out his form seeking the resumption of Australian citizenship (T7) he did not intend to return at that time to reside permanently in Australia. However, he said that had he known that this was a requirement, he would have considered the matter and formed the intention to resume permanent residence in Australia when completing the form.
33. The tribunal has come to the conclusion, albeit reluctantly, that the delegate made the correct decision in deciding to reject Mr Glick's application to resume his Australian citizenship. The evidence, notably from Mr Glick himself, an admirably honest witness, was that he had not formed the intention to return to reside permanently in Australia that the Act requires when he made the statement referred to in s 23AA(1)(b) of the Act. The Act allows no discretion permitting this outcome to be avoided.
CONCLUSION
34. The tribunal has found that the applicant did not meet the requirements in s 23AA of the Act on the date when he applied to resume his Australian citizenship. This was because he had not at that time formed the intention to resume permanent residence in Australia within three years of the date of making the statement that is a part of that application. He told the tribunal, and the tribunal accepts, that he intends to return within three years of the actual resumption of citizenship. Unfortunately, that is not what the Act requires.
35. However, all may not be lost for Mr Glick. There is nothing to prevent him from making a fresh application. Further, provided he has by then decided that he will return to Australia to reside within three years of the date of that application, his application would not fail for the same reason as the application failed in the instant case.
DECISION
36. The tribunal affirms the decision under review.
I certify that the 36 preceding paragraphs are a true copy of the reasons for the decision herein of Mr M J Sassella, Senior Member
Signed: .......................................................................................
Associate
Date of hearing 16 October 2002
Date of decision 28 November 2002
Counsel for the applicant Self-represented
Counsel for the respondent Kiran Grewal
Solicitor for the respondent Blake Dawson Waldron, Lawyers
[1] http://www.austlii.edu.au/au/legis/cth/consol_act/aca1948254/.
[2] Section 17 was repealed as of 4 April 2002 by the Australian Citizenship Legislation Amendment Act 2002, Schedule 1.
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