Bolawaqatabu and Minister for Immigration, Multicultural and Indigenous Affairs

[2002] AATA 1328

DECISION AND REASONS FOR DECISION [2002] AATA 1328

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No Q2002/406

GENERAL ADMINISTRATIVE  DIVISION       )       
           Re      KEVIN WAQA BOLAWAQATABU        
  Applicant
           And    MINISTER FOR IMMIGRATION, MULTICULTURAL AND INDIGENOUS AFFAIRS              
  Respondent

DECISION

Tribunal       Mr O Rinaudo, Member    

Date23 December 2002 

PlaceBrisbane

Decision      The Tribunal sets aside the decision under review and remits the matter to the respondent for reconsideration in accordance with the Tribunal's reasons for decision.             

...................(Sgd)..................
  O Rinaudo
  Member
CATCHWORDS
IMMIGRATION AND CITIZENSHIP – citizenship – application for declaration of resumption of citizenship – renunciation of Australian citizenship – whether renunciation effective
Australian Citizenship Act 1948 ss 18, 23AA
Minister of State for Immigration and Ethnic Affairs v Teoh (1995) 183 CLR 273

The State v The Registration Officer, Tailevu Fimjian Provincial Constituency; Ex-Parte Samuela Matawalu (High Court of Fiji, Judicial Review No HBJ 18 of 1995, 18 September 1995)

REASONS FOR DECISION

23 December 2002           Mr O Rinaudo, Member                

1. The applicant seeks to review a decision of the respondent's delegate to refuse to make a declaration of resumption of Australian citizenship under section 23AA of the Australian Citizenship Act 1948 ("the Act") in favour of the applicant.
   Facts

2. The applicant, who was born in Australia on 17 May 1967, returned to Fiji with his family in 1986 after completing senior studies in Australia and commencing a Bachelor of Commerce Degree at Griffith University.

3. In 1989, the applicant joined the Republic of Fiji Military Forces. 

4. In 1994, the applicant was offered a position at the Royal Military College Duntroon to train as an Officer Cadet.  It was a condition of his appointment that the applicant be a Fiji citizen.

5. By way of open letter, dated 22 July 1994, the applicant renounced Australian citizenship (T6, Folio 25).  On 6 September 1994, the applicant formally renounced Australian citizenship by way of declaration – Form M.128 (T9, Folio 28).  Approval was granted for the applicant's retention of his Fiji citizenship under section 16 of the Immigration Act, Cap. 87 (Fiji) on 22 September 1994 (T11, Folio 31).

6. The applicant did not attend Duntroon.  However, he attended Military College in New Zealand and became an Officer.  The applicant completed his military service and was discharged.  All of his family reside in Australia and Mr Bolawaqatabu wants to regain his Australian citizenship so that he can live in Australia with his family.

7. These facts were largely uncontested at the hearing.
   Issue

8. The issue to be determined by the Tribunal in this case is whether the applicant's Australian citizenship can be resumed in accordance with the provisions of Part III Division 4 of the Act which provides for three means of resuming Australian citizenship:

   (a)resumption of Australian citizenship lost by acquisition of another nationality  (section 23AA);

   (b) resumption of Australian citizenship lost by residence outside Australia          (section 23A); and

   (c)resumption of Australian citizenship lost by children whose responsible parents lost, renounced or were deprived of Australian citizenship (section 23B).

In this case the relevant section is section 23AA.

1. At the hearing of the matter a further issue was raised in relation to whether the applicant had in fact properly obtained Fijian citizenship and therefore lost his Australian citizenship. This issue revolves around changes to the Constitution of Fiji, particularly as a result of the new Constitution which came into force in Fiji on 25 July 1990. This will be further discussed under the heading "Discussion and Decision"
   Legislation

2. Section 23AA states as follows:

   "23AA Persons may resume citizenship lost in certain circumstances

   (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 results 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 date 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.

   (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."

3. Section 18 of the ACA Act is relevant to this case and states as follows:

   "18 Renunciation of citizenship

   (1)Where a person is an Australian citizen and:

   (a)has attained the age of 18 years and is a national or citizen of a foreign county; or

   (b)was born, or is ordinarily resident, in a foreign country and is not entitled, under the law of that country, to acquire the nationality or citizenship of that country by reason that the person is an Australian citizen;

   the person may lodge with the Minister a declaration in the prescribed form renouncing the person's Australian citizenship.

   …

   (4)Subject to subsections (5), (5A) and (6), the Minister shall register a declaration made under this section and thereupon the person making the declaration shall cease to be an Australian citizen.

   (5)Where, during a war in which Australia is engaged, a declaration is made under this section by a person who is a national or citizen of a foreign country, the Minister may refuse to register the declaration.

   (5A)The Minister shall not register a declaration made under this section if the Minister considers that it would not be in the interests of Australia to do so.

   (6)The Minister shall not register a declaration made under this section unless the Minister is satisfied that the person who made the declaration:

   (a)is a national or citizen of a foreign country; or

   (b)will, if the declaration is registered, become a national or citizen of such a country immediately after the resignation."

4. The relevant section of the 1990 Constitution of Fiji is section 28(1) which reads as follows:

   "Subject to other provisions of this section, a person shall forfeit forthwith his Fijian citizenship if he acquires or retains a citizenship or the nationality of a country other than Fiji."

Section 28(2)(b) of the Constitution states:

"Every person of full age or capacity born outside Fiji any of whose grandparents is a citizen of Fiji, if the Prime Minister is satisfied that:

(a)he is a person of good character;

(b)he has shown a clear intention of his desire to be domiciled in Fiji; and

(c)he has taken the Oath of Allegiance prescribed in Schedule 1 to this Constitution and such other as may be prescribed….."

Discussion and Decision

1. On behalf of the applicant a submission was made that in fact the decision to remove his Australian citizenship was wrong because the Minister had not complied with the provisions of subsection 18(6).  It was submitted that subsections 18(6)(a) and (b) were not complied with in that the applicant did not become a citizen of Fiji. 

2. In this respect the applicant provided a legal opinion from the Permanent Secretary for Home Affairs and Immigration in Fiji which, after considering the relevant legislation, concluded as follows:

   "a.That Kevin had lost his Fijian citizenship on 25th July 1990;

   b.That Kevin is illegally carrying a Fiji passport;

   c.That all concerned parties were not aware of Kevin's status when he renounced his Australian citizenship;

   d.That the Australian authorities granted his renunciation of his citizenship on the condition that Fiji authorities would complete his registration as a Fiji citizen to protect him from becoming stateless;

   e.That the registration process was never completed;

   f.That Kevin is currently stateless;

   g.The Australian authorities relied on an erroneous belief of the Fiji Immigration Department about the true status of Kevin's status to reject his application for resumption of his Australian citizenship;

   h.That Kevin's appeal will be heard on 22nd October."

The same officer then gave the following options to consider.

"In view of the Issues noted in paragraph 12, listed hereunder some of the recommended options for consideration:

a.Advise Mr Kevin Bolawatabu [sic] about his true status only;

b.Complete the Registration of his Citizenship Application, if possible;

c.Advise Australian Immigration and Multi-Ethnic Affairs Department about Mr Bolawatabu's [sic] status and request them to favourably consider his appeal in view of their signatory to the United National Convention on the Reduction of Stateless (as per their letter dated 24th August 1994);

d.Advise Australian Immigration and Multi-Ethnic Affairs Department of the erroneous belief of the Immigration Department as per Mr R Baleikasavu letter dated 21st November 2001, with the hope that it would assist his pending appeal;

e.Seek second opinion from the Solicitor-General Chambers on Mr Kevin Bolawatabu [sic} status;

f.Any other option."

The writer then went on to make the following comment:

"12. The foregoing opinion is aimed at resolving the complex legal issues involved in this case…"

1. Clearly the issues are not as simple as first thought.

2. As this was an issue which was raised late in the hearing, the Tribunal allowed the respondent an opportunity to provide a further written submission.  That written submission was received on 1 November 2002.  The submission noted that:

   "There is no application before the Tribunal for review of the renunciation decision.  Nor has the Applicant sought an extension of time in which to bring such an application.
   The Respondent submits that even if such an application for an extension of time was brought by the Applicant, it would be necessary for the Applicant to satisfy the Tribunal that it is proper that it exercise the discretion with which it is vested to extend time: Re Australian Telecommunications Commission and Commonwealth and Schmidt (1986) 9 ALD 349.  The Respondent further submits that to do so, the Applicant would need to be able to show requisite merit in this case, amongst other factors."

3. With respect, the Tribunal considers this submission to misconceive the issue raised by the applicant. What the applicant appears, to the Tribunal, to be saying is that if section 18 was not complied with, then the revocation of the applicant's Australian citizenship should not have been accepted by the Minister. If this is in fact the case, then it is not a new application but rather a matter which impacts on the determination of the matter presently before the Tribunal. The respondent also notes in the further submissions, that the United Nations Convention on the Reduction of Statelessness 1954 ("the UNCRS") was ratified by Australia on 13 December 1973. 

4. The Tribunal was referred to the decision in Minister of State for Immigration and Ethnic Affairs v Teoh (1995) 183 CLR 273 at 286-7, where Mason CJ and Deane J said:

   "It is well established that the provisions of an international treaty to which Australia is a party do not form part of Australian law unless those provisions have been validly incorporated into our municipal law by statute.  This principle has its foundation in the proposition that in our constitutional system the making and ratification of treaties fall within the province of the Executive in the exercise of its prerogative power whereas the making and the alteration of the law fall within the province of the Parliament, not the Executive.  So, a treaty which has not been incorporated into our municipal law cannot operate as a direct source of individual rights and obligations under that law."

5. The UNCRS has not been incorporated into Australian law.  The Tribunal acknowledges the comments made in the abovementioned case of Minister of State for Immigration and Ethnic Affairs v Teoh (supra) and acknowledges that the UNCRS has not been incorporated into Australia law and that, therefore, as a matter of law, the issue is not one that can be dealt with by the Tribunal.  However, subsection 18(6) is law and it is this provision which the Tribunal is most concerned with in respect of this application.  In the written submission, the respondent noted the following with respect to the review:

   "As noted above, the application currently before the Tribunal is an application for review of the Respondent's delegate decision to refuse to make a declaration of resumption of Australian citizenship under s 23AA of the ACA in favour of the Applicant.
   The Applicant contends that he is not a Fijian citizen.  He also contended at the hearing that he neither retained nor re-acquired Fijian citizenship on renunciation of his Australian citizenship.
   However, it is open to the Tribunal to find that the Fijian authorities have recognised the Applicant's renunciation of Australian citizenship and approved the grant of Fijian citizenship to him (see Tp31).
   Further, the Applicant gave evidence at the hearing that he is the holder of a Fijian passport.
   There is also no evidence to suggest that the Applicant cannot now be registered as a Fijian citizen, assuming that the relevant Fijian authorities do not already regard him as such, in light of the above."

6. It appears clear that the respondent did lose Fijian citizenship as noted by the Permanent Secretary of Home Affairs and Immigration on 25 July 1990.  In this respect, the Tribunal was referred to the decision in the High Court of Fiji in The State v The Registration Officer, Tailevu Fijian Provincial Constituency; Ex-Parte Samuela Matawalu (Judicial Review No HBJ 18 of 1995, 18 September 1995), in which Scott J referred to the relevant provisions of the 1990 Constitution and formed the view that the respondent in that case had lost citizenship as a result of the relevant provisions of the Fijian Constitution of 1990.

7. The Tribunal finds that Mr Bolawaqatabu, the applicant in these proceedings, did not acquire Fijian citizenship in 1994 nor has he ever acquired Fijian citizenship pursuant to the relevant provisions of the 1990 Fijian Constitution.  The fact that he is the holder of a Fijian passport does not appear to alter this legal position. 

8. In the circumstances, it seems clear that the Minister should not have accepted the renunciation of Australian citizenship because at the time of the renunciation the Minister could not be satisfied that the applicant:

   "(a) is a national or citizen of a foreign county; or

   (b)will, if the declaration is registered, become a national or citizen of such a country immediately after the registration."

9. Turning then to section 23AA of the Act. The relevant part contained in subsection 23AA(1)(a) refers to a person doing "a voluntary and formal act" to acquire the nationality or citizenship of a country other than Australia or to do an act which the "sole or dominant purpose" of which was to acquire the nationality or citizenship of a foreign county which results in the person ceasing to be an Australian citizen.  The section goes on to say that the person may, in the discretion of the Minister, re-acquire Australian citizenship if "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" (section 23AA(1)(b)(ii)).

10. The evidence before the Tribunal was clear that the applicant was aware of what he was doing, and sought Fijian citizenship on the basis that he had to have Fijian citizenship to get acceptance into Duntroon Military Academy, although this position eventually was not open to him because the application for Fijian citizenship took so long to process. Accordingly, the Tribunal is satisfied that the applicant cannot satisfy section 23AA(1)(b)(ii) of the Act. However, the Tribunal is satisfied that the applicant otherwise satisfies the provisions of subsections 23AA(1)(b) and (c) of the section.

11. Further, the Tribunal cannot be satisfied that the applicant has, in accordance with section 23AA(1)(a)(i):

    "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".  (emphasis added)

12. Nor can the Tribunal be satisfied in accordance with section 23AA(1)(a)(ii) that the applicant:

    "(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;" (emphasis added)

13. There is no doubt that Mr Bolawaqatabu finds himself in a very unusual situation.  It is a situation not of his making.  It seems clear from the evidence that Mr Bolawaqatabu never intended to relinquish his Australian citizenship in favour of Fijian citizenship forever.  Mr Bolawaqatabu was born in Australia and lived in Australia until his teens.  The only reason he sought to apply for Fijian citizenship was to enable him to attend military training at the school.

1. It seems clear, for the reasons stated above, that Mr Bolawaqatabu never did, and still has never properly complied with, the 1990 Fijian Constitution and has never legally become a Fijian citizen.  In those circumstances, again for the reasons stated,  Mr Bolawaqatabu's application to renounce his Australian citizenship should never have been accepted by the Minister.

2. In the circumstances the Tribunal considers that the acceptance of the renunciation of Mr Bolawaqatabu's Australian citizenship was contrary to section 18(6) of the Australian Citizenship Act 1948 and his citizenship should be reinstated.

3. The Tribunal, therefore, sets aside the decision under review and remits that matter to the respondent for reconsideration in accordance with these reasons for decision.

   I certify that the 30 preceding paragraphs are a true copy of the reasons for the decision herein of Mr O Rinaudo, Member

   Signed:         Sarah Oliver
     Associate

   Date of Hearing  22 October 2002
   Date of Decision  23 December 2002
   Solicitor for the Applicant         Mr T Savu, Solicitor 
   Solicitor for the Respondent    Mr B Cramer, Messrs Blake Dawson Waldron