Borg and Minister for Immigration and Multicultural and Indigenous Affairs
[2004] AATA 812
•30 July 2004
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2004] AATA 812
ADMINISTRATIVE APPEALS TRIBUNAL )
) No A2004/97
GENERAL ADMINISTRATIVE DIVISION ) Re RICHARD BORG Applicant
And
MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
Respondent
DECISION
Tribunal Senior Member Joan Dwyer Date30 July 2004
PlaceMelbourne
Decision The Tribunal affirms the decision under review.
[sgd] Joan Dwyer
Senior Member
CATCHWORDS
CITIZENSHIP – review of decision refusing application to resume Australian citizenship –applicant a Maltese and Australian dual citizen until renounced Australian citizenship to retain Maltese citizenship – resumption of citizenship possible under s 23AA Australian Citizenship Act 1966 if citizenship was renounced in order to acquire citizenship of another country – applicant renounced citizenship in order to retain Maltese citizenship – meaning of “acquire” – finding that not eligible for resumption of citizenship under s 23 AA – finding that not eligible for resumption of citizenship under s 23AB Australian Citizenship Act 1966 as over age 25 at date of application – decision under review affirmed.
PRACTICE AND PROCEDURE – inquisitorial powers of Tribunal – use of extrinsic material in interpretation of an Act – consideration of explanatory memorandum and second reading speeches and debates of Australian Citizenship Legislation Amendment Bill 2002.
Acts Interpretation Act 1901, s 15AB.
Administrative Appeals Tribunal Act 1975, ss 33(1)(c), 37, 39.
Australian Citizenship Act 1948, ss 23AA, 23AB.Australian Citizenship Legislation Amendment Act 2002
Desira and Minister for Immigration and Multicultural Affairs [2000] AATA 32
Cho and Minister for Immigration and Multicultural Affairs [2002] AATA 238Re Allan and Department of Foreign Affairs (1986) 5 AAR 432
REASONS FOR DECISION
30 July 2004 Senior Member Joan Dwyer 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 made by a decision maker on behalf of the Minister for Immigration and Multicultural Affairs (“the Minister”). The reviewable decision, made on 13 February 2004, refused Mr Borg's application to resume Australian citizenship. The entitling provisions considered in the reviewable decision were ss 23AA and 23AB of the Act.
2. The hearing was conducted by telephone. Mr Bonnici, an American lawyer appeared for Mr Borg who lives in Malta. Ms Wright, a solicitor with the Australian Government Solicitor appeared for the Minister. The Tribunal had before it the material (“the T documents”) lodged by the respondent pursuant to s 37 of the Administrative Appeals Tribunal Act 1975 (“the AAT Act”) and the Statements of Facts and Contentions lodged on behalf of the applicant on 11 June 2004 and the respondent on 29 June 2004. In preparation for the hearing, I had used the Tribunal’s power under s 33(1)(c) of the AAT Act, to research the Australian Citizenship Legislation Amendment Act 2002 (“the Amendment Act”) which introduced s 23AB, with effect from 4 April 2002. I had looked at the Australian Citizenship Legislation Amendment Bill 2002 (“the Bill”) Explanatory Memorandum, the Second Reading Speeches and Debate in the House of Representatives. As required by s 39 of the AAT Act, relevant extracts from that material were forwarded to the parties by the Tribunal prior to the hearing, and taken into evidence at the hearing.
3.Section 23AA of the Act, so far as relevant, provides:
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 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. [emphasis added]
4. There is no dispute about the following facts. Mr Borg was born in Melbourne on 9 July 1969 of Maltese parents. He acquired both Maltese and Australian citizenship at birth.
5. As a young child Mr Borg suffered from asthma. His mother was advised to try a change of climate to see if that would help his allergy. In 1973 his mother took him and his brother and sister back to Malta to see whether that helped his asthma. Mr Borg’s father stayed in Australia to work and look after the family home.
6. Mr Borg’s health did improve in Malta. His mother began to plan to return to Australia with her children. However that never happened because, in December 1974, the family was advised that Mr Borg’s father had died suddenly of an asthma attack. Mr Borg’s mother decided to stay in Malta where she had the support of her parents.
7. In 1985, when he was aged 16, it appears that Mr Borg telephoned the Nationality Division, Castilla, Malta to enquire about his national status. On 15 October 1985, he received a letter from the Administrative Secretary which advised him (T6,p48):
… in order to retain your citizenship of Malta you will be required to renounce any other citizenship held by you when you reach your eighteenth birthday and before you attain nineteen years of age.
8. Mr Borg attained the age of 18 years on 9 July 1987. He wrote in his statement in support of his application (T6, p45):
At the age of eighteen, in 1988, I was asked to choose whether to maintain my Australian citizenship or renounce it to become a Maltese National.
9. I consider that statement is not fully accurate. It is misleading in using the term “to become a Maltese National”. It omits the fact that under the Maltese law, Mr Borg was already a Maltese citizen, as shown by the words “in order to retain your citizenship of Malta”, in the letter to him of 15 October 1985 (T6, p48).
10. On 29 February 1988, Mr Borg lodged a declaration of renunciation of his Australian citizenship under s 18 of the Act, with the Australian High Commission in Malta (T6, pp47 & 49). It was registered with the Department of Immigration and Ethnic Affairs, Canberra on 11 March 1988. Mr Borg ceased to be an Australian citizen under s 18 of the Act from the date of registration (T6, p50).
11. As part of his application to resume Australian citizenship, on 5 June 2003, Mr Borg made a declaration in Malta stating that he wished to resume Australian citizenship. The application was lodged by mail by his lawyer Mr Bonnici on 25 November 2003. As set out earlier, it was refused on 13 February 2004.
12. The decision-maker rejected Mr Borg’s application for resumption under s 23AA of the Act. She found that when he renounced his Australian citizenship he did so in order to retain his existing Maltese citizenship. She pointed out that, as he did not acquire Maltese citizenship, he did not meet the legislative requirements for resumption of Australian citizenship under s 23AA (T2, p3). The decision maker then went on to consider Mr Borg’s application under s 23AB of the Act.
13. Section 23AB was inserted in the Act by the Australian Citizenship Legislation Amendment Act 2002.It reads as follows:
(1) If:
(a) a person has ceased to be an Australian citizen because of section 18 (which deals with renunciation of citizenship); and
(b) the person has not attained the age of 25 years; and
(c) the person gives the Minister a written statement that complies with subsection (2); and
(d) the person gives 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:
(e) as to the truth of the matters contained in the statement; and
(f) in a case where the person has claimed that, if the person had not renounced his or her Australian citizenship, 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 renounce his or her Australian citizenship; and
(g) that the person is of good character;
register the declaration in the prescribed manner and, on the registration of the declaration, the person making the declaration again becomes an Australian citizen.
(2) A statement made by a person under paragraph (1)(c) complies with this subsection if the statement is to the effect that:
(a) the person renounced his or her Australian citizenship in order to retain the nationality or citizenship of a foreign country; and
(b) if the person had not renounced his or her Australian citizenship, the person would have suffered significant hardship or detriment;
and the statement also states that the person:
(c) 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; and
(d) intends that:
(i) 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
(ii) 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 begin to reside in Australia after so becoming an Australian citizen and before the end of the period of 3 years beginning on the day on which the statement is made; and
(e) has maintained a close and continuing association with Australia.
14. In considering the application under that section the delegate wrote:
When you renounced your Australian citizenship under section 18 of the Australian Citizenship Act on 11 March 1988, you did so in order to retain your existing Maltese citizenship and because you are over 25 years of age, you are unable to meet the requirements of s23 AB of the Act.
Accordingly your application to resume Australian citizenship is refused.
15. The issue in this matter is whether Mr Borg is able to satisfy either of the statutory preconditions in s 23AA (1) (a). Unless he can satisfy either sub-paragraph 23AA (1)(a)(i) or (ii), he 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 he wishes to resume Australian citizenship, so that Mr Borg “again becomes an Australian citizen”.
16. The sub-paragraphs of s 23AA (1)(a) require Mr Borg to have done a “voluntary and formal act” (sub-paragraph (i)) or have “done any act or thing” (sub-paragraph (ii)) by which he “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 Mr Borg had Maltese citizenship from birth, his act of renouncing his Australian citizenship was not an act by virtue of which he “acquired” Maltese citizenship, nor was it done “to acquire” Maltese citizenship. It was done to retain rather than to acquire Maltese citizenship.
17. The respondent submitted that the applicant "retained" rather than "acquired" his status as a Maltese citizen. The respondent relied on the decisions of Desira and Minister for Immigration and Multicultural Affairs [2000] AATA 32 and Cho and Minister for Immigration and Multicultural Affairs [2002] AATA 238.
18. The first contention of the applicant’s solicitor was that the Tribunal in Desira and Cho had interpreted the words “acquired” and “to acquire” in subparagraphs 23AA(1)(a)(i) and (ii) too narrowly. Mr Borg, in the appendix to his application, and Mr Bonnici, in his Statement of Facts and Contentions and in his submission at the hearing, submitted that the word “acquire” should be interpreted broadly. They submitted that the words “acquire” and “retain” were not mutually exclusive.
19. Mr Borg and his solicitor submitted that if the Tribunal referred to the Macquarie Dictionary, or to another dictionary such as a law dictionary, it would see that the words can have wider meanings than are given in the Shorter Oxford Dictionary to which the Tribunal referred in Re Allan and Department of Foreign Affairs (1986) 5 AAR 432. I do not follow the point of that submission. Mr Borg, in his statement (T6p41) emphasised the fact that the Macquarie definition included as one meaning of the word acquire, to “get as one’s own”. He seems to have overlooked the fact that, as set out in paragraph 18 of the decision in Desira, that definition is also given in the Shorter Oxford English Dictionary.
20. The problem for Mr Borg is that he did not “get [his Maltese citizenship] as his own”, by renouncing his Australian citizenship, because he already had Maltese citizenship. He submitted in his appendix to his application (T6 p36):
At birth, I temporarily acquired Maltese citizenship. From that point onward, I would retain it for up to 19 years without any act or effort on my part. During this period, I had possession, not ownership, of Maltese citizenship.
The constitution of Malta’s Section 27(1) stipulated at that time that a person could have dual nationality until the person attained the age of 19 years. At that point he would cease to be a citizen of Malta unless he renounced the citizenship of the other country.
To use an analogy, obtaining my Maltese citizenship at birth was like acquiring a car on lease with the Maltese government being the lessor and I being the lessee. The lease for the car would run for 19 years. During this period, the lessee could acquire it permanently by paying extra for it and consequently retaining it forever, beyond 19 years. In acquiring it permanently, the lessee would gain ownership of the car.
In the analogy, the rational lessee acquires the car twice: He or she acquires it temporarily for 19 years, and later acquires it permanently before 19 years run out.
21. I do not find the analogy between the concepts of citizenship and the leasing of a car at all helpful. I consider the two concepts are so different that an argument by analogy from the one to the other confuses rather than clarifies the issues.
22. The applicant’s submission as to temporary citizenship is similar to the submission as to “inchoate citizenship” in Desira. I said in respect of that submission:
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 31st July, 1989, if at the date of such person's birth, his father is a citizen of Malta …
23. I consider that the reasoning in Desira and Cho is clearly correct. That was my view when I delivered the decision in Desira, although as I stated in paragraph 24 of my reasons in that matter:
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.
24. The fact that the decisions in Desira and Cho were required by the terms of the Act, has become clearer since the Act was amended by the insertion of s 23AB. That section recognises that s23AA alone did not provide an adequate mechanism for resumption of Australian citizenship by people who had renounced their Australian citizenship “in order to retain the nationality or citizenship of a foreign country” (s23AB(2)(a)). However, unfortunately, the ameliorative effect it gives is only available to people who apply before they have attained the age of 25 years. Mr Borg was 34 when he lodged his application. Thus s23AB can not assist him.
25. In Desira, I had pointed out the harsh result of not recognising the right to resumption of Australian citizenship by people who had renounced their citizenship in order to retain another country’s citizenship. I was pleased to see, when preparing for this hearing, that there had been an amendment to provide a remedy for some people, but I could not understand why the remedy was limited to people aged under 25 at the time of their application. I note that in Rubenstein, K, Australian Citizenship Law in Context, Lawbook Co, Sydney, 2002, at p289, it is suggested that the requirement in respect of the age of 25 years is related to the age of renunciation of citizenship, rather than to the age of application to resume citizenship. I regret that I cannot agree with that construction of s 23AB(1)(b).
26. Because I found it difficult to understand why s 23AB should contain that arbitrary age limit, I looked at the Explanatory Memorandum, and the Second Reading Speech and the Debate on the Bill for clarification of what seemed to me to be an unreasonable result. The Acts Interpretation Act 1901 allows consideration of extrinsic material. It provides in s 15AB:
Use of extrinsic material in the interpretation of an Act
(1) Subject to subsection (3), in the interpretation of a provision of an Act, if any material not forming part of the Act is capable of assisting in the ascertainment of the meaning of the provision, consideration may be given to that material:(a) to confirm that the meaning of the provision is the ordinary meaning conveyed by the text of the provision taking into account its context in the Act and the purpose or object underlying the Act; or
(b) to determine the meaning of the provision when:
(i) the provision is ambiguous or obscure; or
(ii) the ordinary meaning conveyed by the text of the provision taking into account its context in the Act and the purpose or object underlying the Act leads to a result that is manifestly absurd or is unreasonable.
(2) Without limiting the generality of subsection (1), the material that may be considered in accordance with that subsection in the interpretation of a provision of an Act includes:
(a) all matters not forming part of the Act that are set out in the document containing the text of the Act as printed by the Government Printer;
(b) any relevant report of a Royal Commission, Law Reform Commission, committee of inquiry or other similar body that was laid before either House of the Parliament before the time when the provision was enacted;
(c) any relevant report of a committee of the Parliament or of either House of the Parliament that was made to the Parliament or that House of the Parliament before the time when the provision was enacted;
(d) any treaty or other international agreement that is referred to in the Act;
(e) any explanatory memorandum relating to the Bill containing the provision, or any other relevant document, that was laid before, or furnished to the members of, either House of the Parliament by a Minister before the time when the provision was enacted;
(f) the speech made to a House of the Parliament by a Minister on the occasion of the moving by that Minister of a motion that the Bill containing the provision be read a second time in that House;
(g) any document (whether or not a document to which a preceding paragraph applies) that is declared by the Act to be a relevant document for the purposes of this section; and
(h) any relevant material in the Journals of the Senate, in the Votes and Proceedings of the House of Representatives or in any official record of debates in the Parliament or either House of the Parliament.
(3) In determining whether consideration should be given to any material in accordance with subsection (1), or in considering the weight to be given to any such material, regard shall be had, in addition to any other relevant matters, to:
(a) the desirability of persons being able to rely on the ordinary meaning conveyed by the text of the provision taking into account its context in the Act and the purpose or object underlying the Act; and
(b) the need to avoid prolonging legal or other proceedings without compensating advantage.
27. Item 27 of the Explanatory Memorandum for the Bill, at paragraphs 108 and 109 provides:
108. There are circumstances where young Australians choose to renounce Australian citizenship to retain another nationality or citizenship without fully appreciating the long-term implications for their contact with Australia.
109. Currently, the Act does not allow such persons to resume Australian citizenship. However, the insertion of new subsection 23 AB into the Citizenship Act will change this. It will provide young ex-Australian citizens with an adequate period after reaching their majority to resume their Australian citizenship where it was renounced in order to retain the nationality or citizenship of another country.
28. The Minister in the Second Reading Speech on 13 February 2002 said at Hansard p52:
Similarly, the bill extends the resumption provisions to allow young persons who renounce their Australian citizenship in order to retain another citizenship to be eligible to resume their Australian citizenship until they turn 25 years of age.
29. In the debate on the Bill, Mr Ferguson, the Member for Reid, at Hansard pp761-2, pointed to the opposition’s disappointment that the changes proposed were purely prospective in nature and did not change the position for those who had already lost their Australian citizenship. The problems facing Australian citizens who returned to live in Malta were specifically addressed in the debate by Mr Cadman, the Member for Mitchell, at Hansard pp887-8. In spite of the concerns expressed in the debate about Maltese people born between 1964 and 1977, that is to say in the same position as Mr Borg, who was born in 1969 and by 2002 was over 25, s 23AB was passed in its present form. The reference to extrinsic material confirmed that the meaning of s 23AB(1)(b) is the ordinary meaning conveyed by the text of the provision, even though that leads to a result that is unreasonable from the point of view of people who renounced their Australian citizenship to retain citizenship of another country at age 18, but who by 2002 were aged over 25. Thus s23AB cannot assist Mr Borg.
30. Further, the insertion of s 23AB in the Act reinforces the views I had expressed as to the meaning of the words “acquired” and “acquire” in s 23AA(1)(a)(i)and (ii) of the Act. Action taken in order to “acquire” citizenship of a foreign country does not include action taken to retain citizenship of a foreign country.
31. I am satisfied that Mr Borg renounced his Australian citizenship not to acquire but to retain his Maltese citizenship. Thus s 23AA does not apply to him. He was over 25 at the date of his application. Thus s 23AB does not assist him. The decision under review must be affirmed.
I certify that the 31 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member Joan Dwyer.
Signed: Josephine McKay
AssociateDate/s of Hearing 29 July 2004
Date of Decision 30 July 2004
Solicitor for the Applicant Mr J Bonnici
Solicitor for the Respondent Ms S Wright
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