Carbogno Barnabè and Minister for Immigration, Citizenship and Multicultural Affairs (Citizenship) - [2024] AATA 1146

Carbogno Barnabè and Minister for Immigration, Citizenship and Multicultural Affairs (Citizenship) [2024] AATA 1146 (17 May 2024)
Division:GENERAL DIVISION
File Number(s): 2023/3600
Re:Anna Carbogno Barnabè
APPLICANT

AndMinister for Immigration, Citizenship and Multicultural Affairs
RESPONDENT

DECISION
Tribunal:Mr S Evans, Member
Date:17 May 2024
Place:Sydney

The decision under review is set aside and the matter is remitted to the Respondent with the finding that the Applicant meets the requirements of section 29(2)(a)(i) of the Act.
...............................[sgd].........................................
Mr S Evans, Member
CATCHWORDS
CITIZENSHIP – Applicant renounced Australian citizenship - Refused resumption of citizenship - Other eligibility requirement not satisfied: s29(2)(a) of Australian Citizenship Act 2007 (Cth) – Issue for Determination - Whether reason to renounce citizenship to ‘avoid suffering significant hardship or detriment’ - decision under review is set aside
LEGISLATION
Australian Citizenship Act 2007 (Cth)
Administrative Appeals Tribunal Act 1975 (Cth)
CASES
Drake v Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634
RBSM and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] AATA 4630
Watagodakumbura and Minister for Immigration and Citizenship [2010] AATA 738
Sirote and Minister for Immigration and Border Protection [2015] AATA 564
SECONDARY MATERIALS
Citizenship Procedural Instructions (CPI)
REASONS FOR DECISION
Mr S Evans, Member
17 May 2024

INTRODUCTION

Anna Carbogno Barnabè (the Applicant) was born in Italy in 1959 and is an Italian citizen by birth. She acquired Australian citizenship by conferral on 6 May 2004.[1]
[1] Applicant’s Documents, p.101; T-Documents, T12, p.101.
On 26 October 2017, the Applicant renounced her Australian citizenship under subsection 33(1) of the Australian Citizenship Act 2007 (Cth) (the Act).[2] In her application she explained her reasons for renouncing her citizenship were ‘in order to take up an appointment as a consular officer for the Republic of Italy at the Italian consulate in Sydney’.[3] The application was approved on 16 November 2017, from which time she ceased to be an Australian citizen.
[2] Applicant’s Documents, p.102; T-Documents, T4, p.34; T12; T2, p.11.
[3] T12, p.94.
On 24 January 2023, the Applicant applied to resume her Australian citizenship under section 29 of the Act.[4] On 4 May 2023, a delegate of the Minister for Immigration, Citizenship and Multicultural Affairs (the Respondent) refused her application as they were not satisfied the reason to renounce Australian citizenship was to ‘avoid suffering significant hardship or detriment’ for the purpose of paragraph 29(2)(a) of the Act.[5] On 23 May 2023, the Applicant sought review of the delegate’s decision at the Administrative Appeals Tribunal (the Tribunal).[6]
[4] T4, p.25-33.
[5] T2–T3.
[6] T2, p.4-10.
For the reasons that follow, the delegate’s decision will be set aside.
BACKGROUND
In a statement to the Department the Applicant set out the reason for renouncing her Australian citizenship:
My husband… is an Australian citizen. We have been married for 30 years. In 2006, he resigned from his job in Australia when I was posted to the Embassy of Italy Washington DC USA. In 2011, he then followed me to Berlin Germany when I was posted to the Italian Embassy there. Between 2006 and 2016, my husband was unable to find work in his field and did not earn income, except for a 3 month period in 2012.[7]
[7] T11, p.81.
She writes that when she and her husband returned to Rome in 2016, they ‘took stock of their financial situation’ and decided they required greater financial security in the future ‘as they were concerned for their retirement’.[8] They decided that the best thing was for the Applicant’s husband to return to Australia so he could return to work. The Applicant writes in part:
When my posting in Berlin was due to expire, we looked at our finances as we were getting closer to retirement age, and decided that my husband would return to Australia and seek employment, and that if that succeeded, I would seek a posting in Sydney so we could be together. My husband was successful in obtaining a suitable job and I subsequently applied for, and was granted, a posting at the Italian Consulate in Sydney.[9]
[8] Applicant’s Statement of Facts, Issues and Contentions, [14].
[9] T11, p.81.
The Applicant’s husband accepted a Sydney based role on 23 December 2016. The Applicant successfully secured a Sydney-based posting with the Italian Consulate-General (the Italian Ministry) commencing in December 2017.[10]
[10] Applicant’s Documents, p.102.
On 12 September 2017, the Applicant emailed a colleague at the Italian Embassy in Canberra to ask about ‘the accreditation procedures for tenured personnel with the Australian authorities’. The following day her colleague confirmed that she would be required to renounce her Australian citizenship because she could not be accredited as an Australian citizen.[11] The email stated that two former staff members had renounced their Australian citizenship during their stay at the Embassy and cited the Australian government’s Department of Foreign Affairs and Trade protocol guidelines:
The Australian Government does not accept the appointment of Australian citizens or permanent residents as diplomatic or consular representatives of another country unless there are exceptional circumstances. If consent is given, privileges and immunities will be strictly limited in accordance with Article 38.1 of the Vienna Convention on Diplomatic Relations or Article 71 of the Vienna Convention on Consular Relations.
Any person who chooses to renounce their Australian citizenship or permanent resident status to assume a diplomatic or consular role for another country would need to apply to the Department of Home Affairs on completion of their assignment to have their citizenship or permanent residency reinstated. There is no guarantee that such an application would be successful.[12]
[11] T11, p.88-89.
[12] Ibid.
The Applicant writes that she was reluctant to renounce her citizenship and considered she had four options:
(i)Remain in Rome, seek an alternative overseas posting and live apart from her husband; or
(ii)ask her husband to refuse his new position in Sydney and to accompany her in Rome; or
(iii)resign from her employment with the Italian Ministry and join her husband in Sydney where she could ‘seek work without qualifications at the age of 57’; or
(iv)renounce her Australian citizenship and accept the Sydney based position with the Italian Ministry so she could continue her career and remain with her husband.[13]
[13] Applicant’s documents, p.102.
The Applicant believed that living apart from her husband would be detrimental to her mental health and emotional wellbeing. Having her husband decline his new role and accompany her in Rome would mean missing out on a significant income stream over five years causing ‘serious damage’ to their retirement prospects. She believed alternative employment opportunities were uncertain and likely to be less remunerative than the position she had been offered by the Italian Ministry.[14]
[14] Ibid.
After carefully considering the options, the Applicant decided to renounce her Australian citizenship and accept the posting with the Italian Ministry at its consulate in Sydney.
LEGISLATION AND POLICY
Subsection 30(1) of the Australian Citizenship Act 2007 (Cth) (the Act) states that:
(1) If a person makes an application under section 29, the Minister must, by writing, approve or refuse to approve the person becoming an Australian citizen again.
(1A) The Minister must not approve the person becoming an Australian citizen again unless the person is eligible to become an Australian citizen again under subsection 29(2) or (3).
Section 29(2) of the Act provides a person is eligible to resume Australian citizenship if, relevantly:
(a) the person ceased to be an Australian citizen under:
(i) section 33 (about renunciation) in order to acquire or retain the nationality or citizenship of a foreign country or to avoid suffering significant hardship or detriment;
The Tribunal must also have regard to the policy contained in the Citizenship Procedural Instructions (CPI). The Tribunal will usually apply policy unless there are cogent reasons not to.[15] The policy relevant to this matter is contained in Citizenship Procedural Instruction Chapter 12 (CPI 12).
[15] Drake v Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634; AATA 179, per Brennan J.
The words ‘significant’, ‘hardship’ and ‘detriment’ are not defined in the Act. CPI 12 provides guidance on determining whether the requirements under subparagraph 29(2)(a)(i) of the Act have been met. CPI 12 refers to the definitions used in the Macquarie Dictionary:
·Significant meaning important; of consequence.
·Hardship meaning a condition that bears hard upon one; severe toil, trial, oppression, or need; an instance of this; something hard to bear.
·Detriment meaning loss, damage or injury; a cause of loss or damage.
CPI 12 also provides examples of types of significant hardship or detriment that a person might experience if they were not to renounce their Australian citizenship. CPI 12 states in part:
Inability to obtain employment without renouncing Australian citizenship. To resume Australian citizenship in reliance upon the 'avoid suffering significant hardship or detriment' limb of section 29(2)(a)(i) of the Act, the applicant would need to demonstrate that they renounced Australian citizenship to avoid significant hardship or detriment.
·It may be relevant for the decision maker to consider whether the skills the person had at the time of renunciation were only relevant to the employment they were engaged in overseas or whether they could have been utilised in alternative employment not requiring sole citizenship.
·It may also be relevant for the applicant to be able to provide a letter from the employer attesting that the applicant could not be a dual citizen when commencing employment. Such a letter may be available on the applicant's renunciation file.
CPI 12 lists further examples of hardship or detriment for the purposes of subsection 29(2) of the Act including a requirement to pay significantly higher taxes as a non-citizen, where the higher taxes may have prevented a person being able to afford fundamental assets such as a family home and ineligibility to purchase or retain property.
ISSUE TO BE DETERMINED
The issue to be determined by the Tribunal is whether the Applicant ceased to be an Australian citizen in order to avoid suffering significant hardship or detriment.
CONSIDERATION
Central to the Applicant’s case is that she renounced her Australian citizenship in order to secure employment at the Italian Ministry which enabled her to live with her husband in Sydney as they prepared financially for their retirement. The significant hardship or detriment she sought to avoid by renouncing her citizenship was less financial security, significant uncertainty and living apart from her husband.
Between 1991 and 1999 the Applicant had a number of administrative jobs based in Sydney.[16] The Applicant has been employed by the Italian Ministry since 2003 during which time she has held postings in Europe and the United States.[17] She was employed by the Italian Ministry at the consulate in Sydney from 4 December 2017 until 16 October 2022. It is not in dispute that she was required to renounce her Australian citizenship to remain employed by the Italian Ministry while based in Sydney.
[16] Applicant’s Documents, p.116.
[17] Ibid, p.1-7, 14, 116.
The evidence supports the Applicant’s claim to have earned approximately $120,000 and $140,000 after tax each year while employed by the Italian Ministry in Sydney.[18] Her husband’s net earnings were approximately $85,000 per year between 2016 and 2022.[19] The Applicant has calculated that the decision to relocate to Sydney so both she and her husband could work left them $300,000 better off than they otherwise would be. She said they were able to repay their mortgage and add significantly to their retirement savings, and that her position at the Italian Ministry was central to that outcome.[20] Based on the evidence, I accept the Applicant and her husband chose to relocate to Sydney to prepare financially for retirement and that they were successful in doing so.
[18] Applicant’s Documents, p.265.
[19] Applicant’s Documents, p.102.
[20] Ibid, p.102-103.
The Applicant contends that home ownership is an important determinant of disposable income and lifestyle during retirement. She believes that she and her husband would have faced financial hardship had they not repaid the mortgage on their Sydney apartment before they retired.
The Respondent contends that it was open for the Applicant to accept an alternative role which did not require her to renounce her Australian citizenship. Had she done so, she and her husband would have had enjoyed a combined income which would have been more than sufficient for them to save for a comfortable retirement and pay off the remaining mortgage on their apartment.
The Applicant’s job title in Sydney was ‘Administrative, Accounting and Consular Collaborator’.[21] She described the role as being responsible for the working of the consulate’s administrative office and akin to a Contracts Administrator as defined by Australian and New Zealand Standard Classification of Occupations (ANZCO).[22] In evidence is data published by the Australian government confirming that 164,700 people are employed as Contract, Program and Project Administrators, with an average median earning of $1,848 per week.[23]
[21] Ibid, p.8; Applicant’s Statement of Facts, Issues and Contentions, [53].
[22] Applicant’s Statement of Facts, Issues and Contentions, [59].
[23] Applicant’s Documents, p.188.
Based on this data, the Respondent submits there were many employment opportunities for ‘Contract, Program and Project Administrators’, and notes the median salary for the sector is comparable to what she was paid at the Italian Ministry. The Respondent contends that the Applicant possessed skills which were broadly transferrable to many occupations and given the length of her experience, she would have faced little impediment to securing alternative employment in Australia.
The Applicant says she considered applying for other positions but chose not to. The position at the consulate was well paid and offered a familiar environment. It enabled her to use skills and knowledge she already possessed, and her language skills were an asset. The role offered security and she was confident in her ability to carry out her responsibilities having performed similar work in other postings. The Applicant also enjoyed the work, and the Italian Ministry was a good fit for her personality. She believed it was unlikely she would be able to secure alternative, comparable employment in Sydney given the nature of her experience, lack of formal qualification, her age, and English being her second language.
I am satisfied that the Applicant preferred to continue her employment with the Italian Ministry as it offered a familiar environment using skills and knowledge she already possessed, and where her language skills are an asset not a hinderance. The position was secure, and she was confident she had the ability to do the job as she had done similar work in other postings. Taking into account the financial and emotional hardships that would arise if she failed to secure and maintain comparable employment in Sydney, the Applicant chose to minimise uncertainty and to accept what she believed was the best available option.
Having regard to the evidence, I accept the Respondent’s contention that the Applicant’s decision not to pursue alternative employment opportunities and accept the position at the Italian Ministry was partly determined by her preferences. However, I consider the primary drivers were the avoidance of uncertainty and financial hardship.
The question to be determined is whether the decision to renounce her citizenship was made to ‘avoid significant hardship or detriment’. The Respondent contends that had the Applicant accepted a lower paid position which did not require her to renounce her citizenship, she may have been deprived of an advantage, but this does not satisfy subparagraph 29(2)(a)(i). I am referred to the decision of Senior Member Friedman in the matter of Watagodakumbura and Minister for Immigration and Citizenship,[24] in which he observed in relation to significant financial hardship:
To me, an example of the application of this section of the Act would be where a country says to a person, “You cannot get a job, you cannot get a house, and you cannot do a number of things after what is listed in the Australian citizenship instructions because you have citizenship of, say, Australia.” Thereby renouncing citizenship would be a way of avoiding the significant financial hardship and detriment that would flow from the suffering that a person would endure by holding Australian citizenship.
So it’s not just a question, in my view, of saying, “Well, I am in financial difficulty, I will renounce my citizenship to get some money to reduce my financial difficulty.” It is stronger than that. It is a matter of saying, “Well, I had to renounce my citizenship because, without that, I would have suffered so much by reason of not being able to do certain things.” In this case, although I found that the applicant was in financial difficulty, that, to me, is not sufficient to say that it comes within the provisions of the Act. And as I have said, furthermore, I don’t believe that he suffered significant financial hardship or detriment anyway.
[24] [2010] AATA 738.
Although she may have faced some financial instability and uncertainty regarding her job security if she chose to pursue employment in an alternative area, or move to Australia without having secured employment, the Respondent argues that does not amount to a significant hardship or detriment. The matter of RBSM and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (RBSM) concerned an applicant who had renounced his citizenship to obtain a role as an IT professional in the UK defence sector.[25] In that decision, Deputy President Cowdroy accepted at [62] that financial instability and job uncertainty may be regarded as a ‘detriment’, but not a ‘significant detriment’. The Respondent contends that facts in RBSM are analogous to the present matter and notes Deputy President Cowdroy’s remarks at [64]:
[A] mere preference for employment in a particular sector does not lead to the conclusion that significant detriment would result if the applicant were not so engaged.
[25] [2021] AATA 4630.
In Sirote and Minister for Immigration and Border Protection (Sirote),[26] the applicant had renounced Australian citizenship in order to obtain security clearance required for employment. In setting aside the decision, Deputy President Deutsch stated in relation to previous policy at [29]:
… the lack of specific reference to security or secret clearance as an example is clearly not an insurmountable problem as the list is not exhaustive as is recognised in the ACIs themselves.
The list does, however, refer to the inability to secure a driver’s licence and specifically refers to how that may affect a person’s employment prospects. The lack of security clearance and its effect on a person’s employment prospects would seem to be a case of a similar, and perhaps even stronger, nature.
[26] [2015] AATA 564.
The Respondent argues that the present matter is distinguishable from Sirote because the applicant in that matter was required to obtain security clearance in order to qualify for a specialised job, where the Applicant renounced her citizenship to work in her preferred job. In my view, both matters concern applicants who have made rational decisions based on their individual circumstances to pursue their preferred employment option.

The Applicant has provided a statement from Santina Corbino who also gave evidence at the hearing. Like the Applicant, Ms Corbino was an Italian citizen by birth. Ms Corbino became an Australian citizen in 1990 and took up a position with the Italian Ministry in 2003. In September 2006 she was required to renounce her Australia citizenship in order to take up a posting in Canberra. At the completion of her posting in October 2016, Ms Corbino was able to resume her Australian citizenship. She subsequently renounced her citizenship a second time to take up another posting with the Italian Ministry. After confirming she was required to renounce her citizenship in order to obtain the posting, her citizenship was resumed a second time in March 2021.[27]
[27] Applicant’s Documents, p.376-378; 438.
The Applicant argues that her circumstances are fundamentally comparable to those of Ms Corbino who was able to resume her citizenship under the same legislation and policy. The Respondent does not take issue with the essential facts of Ms Corbino’s experience as outlined, but submits her experience is not relevant and no weight should be placed on it.
To my mind each matter turns on the factual circumstances and the application of CPI 12. Examples of the types of significant hardship or detriment which may warrant resuming citizenship under section 29(2) of the Act provided in CPI 12 include ‘an inability to obtain employment without renouncing citizenship’. CPI 12 does not qualify the nature of the employment, and it is not disputed that the Applicant was required to renounce in order to work for the Italian Ministry in Sydney.
The Applicant and her husband returned to Sydney to prepare for their retirement. They were sufficiently motivated to relocate to Australia so that the Applicant’s husband could re-enter the workforce. The Applicant was prepared to consider an extended period of separation from her husband to achieve what she considered financial security. To my mind these are not insignificant measures, and support a finding that the Applicant feared significant hardship if she was not financially prepared for retirement. I accept that the posting at the Italian Ministry was an important consideration when deciding to proceed with their financial plan and central to its successful execution. I am satisfied that the Applicant renounced her citizenship reluctantly and would not have done so if she was not required to.
CPI 12 identifies financial considerations including ineligibility to purchase or retain property, and inability to access loans as examples of significant hardship or detriment for the purposes of subsection 29(2) of the Act. In this context, and having regard to the definitions provided in CPI 12, I am satisfied that the Applicant decided to renounce her citizenship to avoid the significant hardship or detriment that would result from being financially ill-prepared for retirement and physically separated from her husband.
For these reasons, I am satisfied that the Applicant renounced her Australian citizenship for the purpose of avoiding significant hardship or detriment and meets the requirements of section 29(2)(a)(i) of the Act.
DECISION
The decision under review is set aside and the matter is remitted to the Respondent with the finding that the Applicant meets the requirements of subparagraph 29(2)(a)(i) of the Act.

I certify that the preceding 39 (thirty – nine) paragraphs are a true copy of the reasons for the decision herein of Member S, Evans.

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Associate
Dated: 17 May 2024

Date(s) of hearing: 14 March 2024

Solicitors for the Applicant: Mr C. Dengate, KAH Lawyers

Solicitors for the Respondent: Ms N. Alroe, Minter Ellison

Date(s) of hearing:	14 March 2024
Solicitors for the Applicant:	Mr C. Dengate, KAH Lawyers
Solicitors for the Respondent:	Ms N. Alroe, Minter Ellison