Cho and Minister for Immigration and Multicultural Affairs

[2002] AATA 238

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2002] AATA 238

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No N2001/1537

GENERAL ADMINISTRATIVE  DIVISION		)
Re		Yoon Jung Cho

Applicant

And Minister for Immigration and Multicultural Affairs

Respondent

DECISION

Tribunal Mr M D Allen, Senior Member

Date3 April 2002

PlaceSydney

DecisionFOR the reasons given orally at the conclusion of the hearing in this matter, the decision under review is AFFIRMED.

(Sgd)         M.D. ALLEN
  ...........................
  Senior Member

CATCHWORDS

CITIZINSHIP: Application to resume Australian citizenship – Applicant had gained Korean citizenship upon marriage – that citizenship would have been forfeited if Applicant had not renounced Australian citizenship within 6 months of marriage – HELD – Applicant had not done a voluntary act to acquire Korean citizenship but had done an act to retain Korean citizenship

Australian citizenship Act 1948 – ss 17, 18, 23AA

REASONS FOR DECISION

3 April 2002   Mr M D Allen, Senior Member

1. At the conclusion of the hearing of the above matter the terms of the decision intended to be made and the reasons therefor were stated orally. After service upon the Respondent of a copy of the decision that was in fact made, the Respondent pursuant to Sub‑section 43(2A) of the Administrative Appeals Tribunal Act 1975 requested the Tribunal to furnish to the Respondent a statement in writing of the reasons of the Tribunal for its decision.

2.The oral reasons for decision have been transcribed by Auscript, the Commonwealth Reporting Service.  Whereas those oral reasons may reflect the inelegance of an extempore decision, they are in fact the reasons for the said decision.

3.The said transcript is annexed hereunto and furnished to the Respondent and to the Applicant, as it is the reasons for the Tribunal's decision.

I certify that this and the preceding page are a true copy of the decision and reasons for decision herein of:

Senior Member M D Allen

Signed: M Dunkel-Quiros   
  Associate

Date of Hearing  3 April 2002     

Date of Decision  3 April 2002

Representative for Applicant       Mr R Turner

Representative for Respondent   Ms S Hamer

DRAFT DECISION
ADMINISTRATIVE APPEALS TRIBUNAL
Matter No N2001/1537
By MR M.D. ALLEN, Senior Member
CHO v MINISTER FOR IMMIGRATION &
MULTICULTURAL AFFAIRS
SYDNEY, WEDNESDAY, 3 APRIL, 2002

MR ALLEN: In this matter pursuant to an application lodged with the Tribunal on the 8th day of October, 2001 the applicant seeks review of a decision by an officer of the respondent rejecting her application to resume Australian citizenship pursuant to section 23AA of the Australian Citizenship Act 1948.

The facts surrounding the matter are not in dispute.  It is that the applicant who was born in Korea accompanied her parents to Australia in 1970 and on 31 January 1974 she became an Australian citizen.  She remained in Australia until the year 1990 and then she went back to Korea to work.  Whilst there on 28 December 1995 she married a Korean citizen.  There is little dispute as to the effect that that marriage had, suffice it to say that she found it necessary in order to work and indeed exist in Korea as the wife of a Korean citizen to become a Korean citizen herself as she said it would have been very difficult to live in Korea as not a citizen, she had no rights except those of a foreigner.

Section 17 of the Australian Citizenship Act provides that:

A person being an Australian citizen who has attained the age of 18 years who does any act or thing, (a) the sold 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 (i) does not apply in relation to an act of marriage.

Section 18 then goes on to provide subsection (i):

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 country, 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 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.

Suffice it to say that the applicant did lodge such a renunciation with the Australian Consulate in Seoul and as a result of that on 14 August 1996 the renunciation of the applicant's Australian citizenship was registered with the then Department of Immigration and Ethnic Affairs.  The actual declaration of renunciation had been lodged by the applicant on 11 June 1996.  As is set forth in the document which became exhibit A2 the applicant was registered as a citizen of the Korean Republic on 22 June, 1996. 

On 11 July, 2000 the applicant sought pursuant to a declaration in what is form 132 to resume her Australian citizenship pursuant to section 23AA of the Citizenship Act. So far as is relevant that particular section states in subsection (i) where (a):

A person (1) 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 (2) 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, the person may apply for the resumption of their citizenship.

Section 23AA sets out other matters which must apply before the citizenship can be resumed but it has been fairly and properly on the material before me conceded by the respondent that all other matters or things which would result in the resumption of the applicant's Australian citizenship have been complied with.  The sole bases upon which the respondent resists the application of the applicant is on semantic grounds stating in effect that she did not do any act or thing to acquire the nationality or citizenship of a foreign country, namely Korea, but rather she did an act in order to retain Korean citizenship.

Exhibit A3 in these proceedings is an extract from the Citizenship Act of the Republic of Korea. At the outset it must be acknowledged that it is a translation and therefore it may not be the most accurate reproduction of the said Act. Article 1 reads:

This Act stipulates the conditions for becoming a Korean citizen. 

Article 3 then says:

A person without citizenship or a person of foreign nationality who falls under one of the following categories is granted Korean citizenship providing he or she loses or gives up his or her foreign citizenship within 6 months of obtaining Korean citizenship.  (1) who becomes the wife of a Korean citizen.

Article 12 then reads inter alia:

A Korean citizen who falls under one of the following categories will be deprived of his or her Korean citizenship.   (7) A person of foreign nationality who has gained Korean citizenship but has not given up his or her foreign citizenship within six months of gaining Korean citizenship. 

I would state at this stage that the applicant clearly by marrying a citizen of Korea brought herself within article 3 so that she was granted Korean citizenship. In other words, she acquired citizenship of a foreign country, namely Korea. So far as the word "acquire" is concerned in section 23AA subsection 1, I simply refer to the case in the Court of Appeal of Congreave v Inland Revenue Commissioners, 1974 1 All England Reports 168 at 173 where Lord Justice Cohen said:

We agree with the judge in the court below that the taxpayer's argument derives no support from the use of the word "acquire" in connection with the words by means of subsection 1 since. 

As he points out:

As used by lawyers the word "acquired" has long covered transactions of a purely passive nature and means little more than receiving.  Indeed, that is the second ordinary meaning given in the Shorter Oxford Dictionary.

In other words, it seems to me to matter little that the applicant, pursuant to article 3 of the Citizenship Act, did not have to take any action herself to be granted Korean citizenship. The effect of the Act is also set out by a translated document which is at page 24 of the documents prepared for the Tribunal pursuant to section 37 of the Administrative Appeals Tribunal Act 1975. That document, which is from the Korean Ministry of Justice, reads as follows:

1.  Regarding case number 29310 - 131, lodged in Sydney February 6, 1996.  2. In the case of Cho Youn Young, an Australian citizen, who has requested the recovery of her Korean citizenship, this notice is to say that with her marriage to Korean citizen Lee Gon Ho on 28 December 1995, she has automatically become a Korean citizen and does not need to take any other procedures.  However, under our law she must give up her Australian citizenship within six months of the date of marriage.  Failing this, she will forfeit her Korean citizenship and will have to begin procedures to regain it.

I might state that no objection was taken to the accuracy of that translation or as to the information contained therein. The situation, therefore, seems to me to be this, that under article 3 of the Korean Citizenship Act, the applicant acquired Korean citizenship upon her marriage to a Korean citizen. That citizenship was in effect provisional in that, as article 12 of the Korean Citizenship Act points out, a person of foreign nationality was who has gained Korean citizenship but has not given up his or her foreign citizenship within six months of gaining Korean citizenship will be deprived of his or her Korean citizenship.

Using the words of the Act it seems to me clear that the implication is that the person is a Korean citizen and that her citizenship is only forfeited if she then does not take the further action of renouncing a foreign citizenship.  In other words, there is nothing she has to do to acquire citizenship but rather she must take a positive action in order to retain it.

The case as I see it was very much on all fours with the case of Desira v Minister for Immigration and Multicultural Affairs 2000 AAT A32.  In that case the learned Senior Member said at paragraph 21:

In the present case the respondent submitted that the applicant retain rather than acquired her status as a Maltese citizen.  On the evidence that submission is clearly correct.

Ms Desira did not gain or get as her own, nor did she receive or come into possession of Maltese citizen by renouncing her Australian citizenship.  What she did was retain her Maltese citizenship and avoid ceasing to be a Maltese citizen which would have otherwise occurred when she obtained the age of 19.  In this case of course which otherwise would have occurred had she not taken the positive step of renunciation of Australian citizenship. 

The learned Senior Member went on:

The applicant's solicitor submitted that prior to her renunciation Ms Desira did not have full Maltese citizenship but it was conditional or in part 8 depending upon her making a choice on obtaining the age of 19, at which point having renounced Australian citizenship she acquired full Maltese citizenship.  However, those concepts of conditional or in part 8 citizenship are inconsistent with section 25 subsection (2) of the constitution of Malta under which Ms Desira acquired Maltese citizenship.

It seems to me that it is similar here that from the passages I read out from the Korean Citizenship Act the applicant acquired or gained Korean citizenship and there is nothing to say that it was not a full and proper citizenship notwithstanding that upon her failure to take certain action the citizenship would be taken from her.  In other words to use the word of article 12 of the Act, will be deprived or his or her Korean citizenship.  It seems to me the language there particularly does not indicate that anything is conditional or potential but rather that it is full and operative but that it can be subject to an order of depredation.

These circumstances therefore although the particular result may seem perverse I feel I have no choice but to affirm the decision under review.