Bugler and Minister for Immigration and Multicultural and Indigenous Affairs

[2005] AATA 1088

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2005] AATA 1088

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No S2004/401

GENERAL ADMINISTRATIVE  DIVISION		)
Re		EDITH MARGARET BUGLER

Applicant

And MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

Respondent

DECISION

Tribunal Senior Member L Hastwell

Date2 November 2005

PlaceAdelaide

Decision The Tribunal affirms the decision under review.

..............................................

L HASTWELL
  (Senior Member)

CATCHWORDS

IMMIGRATION AND CITIZENSHIP – citizenship – loss of citizenship upon acquisition of another nationality – desire to return to Australia – intention to reside in Australia within 3 years from date of application for resumption of citizenship – decision affirmed

Australian Citizenship Act 1948 ss 17, 23AA

REASONS FOR DECISION

2 November 2005   Senior Member L Hastwell  

1.      Edith Margaret Bugler (the applicant) was born in Australia in 1932 to Australian parents.  Her childhood was spent in Australia and she was an Australian citizen by birth.

2.      The applicant travelled to South Africa in 1951 and married in 1954.  She has resided in Zimbabwe and South Africa since then.  She applied for and was granted South African citizenship in 1976.

3.      In 2004, the applicant applied for an Australian passport as she was returning to Australia for a holiday.  She then discovered that she had lost her Australian citizenship when she gained South African citizenship.  Her application to resume Australian citizenship received on 14 October 2004 [T6] has been refused on the basis that she does not intend to return to live in Australia within three years of her application.  She now seeks a review of the decision of the delegate of the respondent (the Department) dated 9 November 2004 to reject her application for resumption of citizenship.

4. The applicant accepts that because of the now repealed provision of s 17 of the Australian Citizenship Act 1948 (the Act) she had lost her citizenship when she took up South African citizenship, and she does not seek a review of that issue.

legislation

5.      The relevant provision for the Tribunal to consider in this instance is s 23AA of the Act which provides for when a person may resume citizenship.  That section  provides as follows:

“(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.”

6.      It is accepted that the applicant satisfies all the requirements of s 23AA of the Act, save for the requirement set out in s 23AA(1)(b)(iv)(B).  It is also common ground that the applicant currently resides in South Africa, and was so residing at the date of her application for resumption of citizenship.

7.      The sole issue for determination is whether the applicant will commence to reside in Australia within three years of her statement furnished pursuant to s 23AA of the Act.

the hearing

8.      The applicant represented herself and gave evidence by telephone link.  The Department was represented by Mr d’Assumpcao.

9.      The applicant is aggrieved at her inability to regain citizenship, particularly as her understanding is that changes to the Act in recent times make it possible for a person to maintain dual citizenship.  She considers herself an Australian and finds it distressing that she cannot regain her citizenship.  She did not realise that she would lose her Australian citizenship when she applied for South African citizenship.  She only took on that citizenship because of political troubles in Zimbabwe, and the anticipation at the time that she may need to move to South Africa in the future.

10.     The applicant is currently in difficult financial circumstances because she was unable to take a lot of her funds out of Zimbabwe when she finally moved to South Africa in 2002.  This is the main limitation upon her being able to return to Australia.  She expressed the hope to one day return to Australia to live.  She has friends and relatives, including siblings, in Australia and still considers herself to be an Australian.  She cannot predict when she may be in a position to return to Australia.

11.     The applicant acknowledged that the legislation appeared to be against her, but she asked the Tribunal to consider whether the fact that she would return to Australia if she could afford to do so is a factor to be taken into account.  She also asked the Tribunal to consider whether there was any residual discretion under s 23AA of the Act that may enable the Tribunal to make a determination in her favour.

findings of fact

12.     The Tribunal makes the following findings of fact:

·The applicant was born in Australia on 2 September 1932, and is Australian by birth. 

·She has resided outside Australia since 1951, predominantly in Zimbabwe, and more recently in South Africa.

·The applicant applied for and was granted South African citizenship in 1976. She was not aware at the time that this would result in her losing her Australian citizenship because of the effect of s 17 of the Act as it then stood.

·In the application to resume citizenship [T6/36] question 13 asks:

“If you currently live outside Australia do you intend to return to Australia to reside within 3 years of this application”

·In response to that question the applicant answered “No”.  The Tribunal is satisfied that was a direct and honest answer at the time, and that even now the applicant cannot predict when she may return to Australia.

·The applicant is now widowed and she has moved to South Africa because of the prevailing political climate in Zimbabwe, and also to be closer to her adult children and grandchildren.  She resides in retirement accommodation that she owns.

·In making the decision to leave Zimbabwe, she lost access to some of her capital resources because of laws preventing money being taken out of that country.  This has made it financially impossible for her to return to Australia at present.

·It is impossible to predict when the laws in Zimbabwe will change such that her financial position will improve, and she will be able to take funds out of Zimbabwe.

·The applicant is troubled by aspects of her current life in South Africa and holds a hope of being able to return to reside in Australia one day.  At this stage she has no definite plans to return .

CONSIDERATION AND APPLICATION OF THE LAW

13.     The Act, as it currently stands, sets out certain requirements that must be satisfied before the Minister’s discretion can be exercised to grant citizenship.  In the Tribunal’s opinion, there is nothing in the Act that would allow the Tribunal to depart from the plain reading of s 23AA(1)(b)(iv)(B) of the Act.  The Tribunal must be satisfied that the applicant, being an applicant from outside Australia, intends to commence to reside in Australia within three years of the date of her statement that accompanied her application to resume citizenship.  That date would be 14 October 2007.

14.     The applicant entertains a hope that she may be able to return to reside in Australia one day.  That possibility is dependent on a number of things, including her being able to access funds currently in Zimbabwe.  The Tribunal is not persuaded that she intends to reside in Australia within three years of the date of her statement.

15.     In the circumstances the Tribunal must affirm the decision under review.

16.     The Tribunal has some sympathy for the applicant.  She feels her citizenship is a birth right which she has now lost.  There was some suggestion during the hearing that there may be some changes proposed to the Act which may improve the applicant’s position as an applicant for resumption of citizenship from outside Australia.  The Tribunal asked the respondent to ascertain whether that was in fact the case.  The respondent advised subsequent to the hearing that the Office of  Parliamentary Counsel is currently drafting a bill relating to the Act.  They were unable to confirm whether s 23AA of the Act was to be amended.

17.     The applicant is at liberty to make a further application for resumption of citizenship when she has definite plans of returning to reside in Australia.  Her current application must fail on the law as it currently stands.

I certify that the 17 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member L Hastwell

Signed:         .................J Coulthard ................................
  Associate

Date of Hearing  7 October 2005
Date of Decision  2 November 2005
Counsel for the Applicant         In person
Solicitor for the Applicant          -
Counsel for the Respondent     Mr P d'Assumpcao
Solicitor for the Respondent     AGS