Dose and Minister for Immigration and Multicultural Affairs - [2001] AATA 311

DECISION AND REASONS FOR DECISION [2001] AATA 311

ADMINISTRATIVE APPEALS TRIBUNAL )

) No S1999/387

GENERAL ADMINISTRATIVE   DIVISION     )
           Re      ELENA DOSE
  Applicant
           And    MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
  Respondent

DECISION

Tribunal Deputy President B.H. Burns

Date12 April 2001
PlaceAdelaide

Decision      The decision of the Tribunal is that the decision under review is set aside and in substitution therefor it is decided that special circumstances do exist such as to allow the period from 1 year after the applicant attained the age of 18 years to the date upon which the respondent received the applicant's declaration of resumption of Australian citizenship in 1998 to be the relevant period for the purposes of s23B(1) of the Australian Citizenship Act 1948.
  .......……......(Signed).........……….
  DEPUTY PRESIDENT B.H. BURNS
CATCHWORDS
IMMIGRATION & CITIZENSHIP – desire to resume Australian citizenship which had been lost whilst a minor – declaration lodged out of time – whether special circumstances existed – decision set aside.
Australian Citizenship Act 1948 – s23B
Beertsen and Another and Minister for Immigration and Multicultural Affairs (1997) 45 ALD 726
Re Catanzaro and Department of Immigration , Local Government and Ethnic Affairs (1994) 34 ALD 791
Re Beadle and the Director-General of Social Security (1984) 6 ALD 1
Australian Citizenship Instructions issued 12/2/99

REASONS FOR DECISION

12 April 2001 Deputy President B.H. Burns

This is an application by Elena Dose ("the applicant") for review of a decision of a delegate of the Minister for Immigration and Multicultural Affairs ("the respondent"), made on 25 May 1999, to refuse to allow the applicant a further period in which to make and furnish a declaration of intention to resume Australian citizenship. The decision was made pursuant to s.23B of the Australian Citizenship Act 1948 ("the Act").
The Tribunal had before it the documents lodged pursuant to s.37 of the Administrative Appeals Tribunal Act 1975 (the "T documents") together with the exhibits tendered by the parties. In addition to the documentary material before the Tribunal was the oral evidence given by Ms Dose.
The applicant appeared in person and Ms N. Ware of counsel represented the respondent.
BACKGROUND
By way of background, the Tribunal makes the following findings of fact which were agreed as between the parties.

(a) The applicant was born in Adelaide on 6 January 1958. She acquired Australian citizenship by birth under section 10 of the Australian Citizenship Act 1948, as it existed at the time. The applicant's parents acquired Australian citizenship on 25 May 1964 (T10/25).

(b) The applicant resided in Australia from her birth until 10 March 1973, when she returned with her family to live in Italy.

(c) The applicant's father, Mr Ugo Dose, lost his Australian citizenship under section 17 of the Act (as it existed at the time) on 20 July 1973 when he acquired Italian citizenship by a formal and voluntary act (T13/33).

(d) On the same day, the applicant also acquired Italian citizenship by operation of law in accordance with subsection 23(1) of the Act (as it existed at the time) and she thereby lost her Australian citizenship. This is an assumption that the Tribunal has made (Transcript p24) on the basis of a certificate supplied to the Tribunal by Ms Dose which indicates that she is an Italian citizen, but no date was indicated as to the time of acquiring Italian citizenship.

(e) On 17 February 1981, the applicant was issued with an Australian passport at the Australian Consulate in Milan. The passport expired on 16 February 1986 (T13/34).

(f) On 25 June 1986, the applicant wrote to the Minister for Foreign Affairs stating that she was presently an Italian citizen but was seeking reconsideration of her position as an Australian citizen, in order to obtain an Australian passport (T4/17).

(g) On 5 August 1986, the respondent wrote to the Secretary of the Department of Foreign Affairs, stating that the applicant and her father had both lost their Australian citizenship on 20 July 1973, and suggesting that their current Australian passports should be recovered, and their names be included on the Passport Control File (T6/19-20).

(h) On 8 August 1986, the respondent replied to the applicant's letter of 25 June 1986, stating that the applicant had lost Australian citizenship on 20 July 1973 and recommending that she lodge a declaration of desire to resume Australian citizenship under s.23B of the Act with the Australian Embassy in Rome (T7/21).

In a letter to the Australian Embassy in Rome dated 27 August 1986, the applicant and her brother, Franco, stated that they sought resumption of Australian citizenship (T8/22) and attached a completed form M.627, dated 19 September 1986 (T9/23-24). This was the incorrect form for a person seeking resumption of Australian citizenship under s.23B of the Act and on 25 March 1987, the Citizenship and Operations section of the respondent in Canberra wrote to the Australian Embassy in Rome advising of this and enclosing a copy of the correct form (Form 132) and relevant instructions.

(j) On 9 April 1987, the Australian Embassy in Rome advised the applicant to forward a completed Form 132 (Exhibit A1/ page 1).

(k) By letter dated 8 November 1993 (T13/36-37), the applicant informed the Australian Embassy in Rome that she could not fully understand the reason for the loss of the Australian citizenship because she was an Australian passport holder whose passport had been renewed twice and her mother was an Australian citizen.

(l) In response, by letter dated 17 May 1994, the Australian Embassy in Rome advised the applicant that she had lost her Australian citizenship when her responsible parent, at that time deemed to be her father, lost his Australian citizenship upon re-acquisition of Italian citizenship on 20 July 1973. The letter went on to state that she could apply to re-acquire her lost Australian citizenship under s.23B of the Act (T12/28).

(m) On 25 May 1998, the applicant completed a "Declaration of desire to resume Australian citizenship under section 23AA, 23A or 23B" (T13/29-31).

(n) On 19 October 1998, the applicant submitted a supplementary declaration with the respondent regarding the reasons for her lateness in lodging an application to resume her Australian citizenship, and attached a list of names of people in Australia with whom she claimed to have maintained contact (T14/38-39).

(o) On 5 November 1998, the Rome Embassy wrote to the Citizenship section of the respondent in Canberra, enclosing a completed Form 132 and supporting documents.

(p) On 24 August 1999, the respondent wrote to the applicant, notifying her of the decision of the delegate of the respondent to refuse her application to resume Australian citizenship under s.23B of the Act (T17/43-44).

(q) In a letter dated 14 September 1999, the applicant wrote to the Tribunal advising that she planned to make an application to the Tribunal for review of the primary decision (T1/3). The Tribunal accepted that letter as a formal application for review.

(r) On 29 November 1999, the applicant wrote to the Tribunal attaching a document entitled "Reasons for Application" (Exhibit A1).

The sole issue in dispute between the parties is whether or not there are special circumstances pursuant to s.23B of the Act such as to allow the applicant to make and furnish a declaration in accordance with the prescribed form that the applicant wishes to resume Australian citizenship.
THE EVIDENCE
The applicant was born in Australia on 6 January 1958 and continued to reside in Australia until she was 15 years of age, when her parents decided to return to Italy in March 1973. The applicant is currently living in Trieste, Italy, and is employed as a clerk at the International Centre for Theoretical Physics.
In evidence, the applicant told the Tribunal that she had lost a great opportunity to apply to resume Australian citizenship many years ago. The applicant explained that it was only in 1986 that she became aware that she was no longer entitled to an Australian passport and that therefore she no longer had Australian citizenship. She was not told by the Australian authorities in 1976 or 1977, when she was 18 or 19 years of age, that she no longer had Australian citizenship, nor was she told about the requirements under the legislation, which at that time stated that she had a right to make and furnish a declaration to the Australian authorities that she wished to resume Australian citizenship within one year of attaining the age of 18 years. As a consequence, she was of the view that she was limited to applying under the special circumstances category, and under this category, it was going to be much more difficult to re-acquire Australian citizenship.
The applicant gave evidence that her Australian passport was renewed on 20 February 1976, with an expiry date of 17 February 1981. She was issued with another passport on 17 February 1981 and this passport expired on 16 February 1986. At this point in time the applicant contacted the Australian Consulate in Milan asking for renewal of her Australian passport and after a certain period, the Consulate responded, stating that she was no longer entitled to an Australian passport. The reason given was that her father had, on 20 May 1973, become an Italian citizen and consequently the applicant and her brother, both being under the age of eighteen years, also became Italian citizens and lost their Australian citizenship. The applicant said that had her passport not been renewed in 1976 and had she been informed at that time by the Australian authorities that she had in fact lost her Australian citizenship, but possessed the right to resume it, then she would have taken up that right in 1976 - she would have come to Australia to live, and she would have done the utmost to have her family come with her. When asked by the Tribunal during examination-in-chief why she did not return to Australia while she did have an Australian passport in 1976, the applicant told the Tribunal that the family wanted to be united and that her father had only been in Italy for three years and had settled down in the sense of finding permanent employment in the Italian government. Her parents were at that stage quite hesitant to leave even though they did feel quite homesick for Australia, where they had lived for 17 years.
The applicant testified that had she been informed in 1981, when her passport was again renewed, that her Australian citizenship had come to an end, she would have decided to come to Australia to live. The applicant gave the same reasons as given in 1976 as to why she did not come to Australia in 1981, at that stage believing that she had Australian citizenship.
The applicant informed the Tribunal that she has always had the desire to come back to Australia because she has been to Australia more than once and feels that she has some sort of association with Australia, even though she has been living outside of Australia for many years.
The applicant outlined to the Tribunal the correspondence with the Australian authorities in 1986, leading up to the time when she was sent a form for Declaration of desire to resume Australian citizenship under s.23AA of the Act by the Australian Embassy in Rome. The applicant testified that she filled in this form and sent it back but was then informed by letter dated 9 April 1987 that she and her brother had been sent the wrong form, that the correct form was Form 132 and that she and her brother could send this form off and start their applications to resume Australian citizenship.
The applicant explained to the Tribunal that she and her brother did not send the forms off because they were having family problems and they were too involved in these problems to proceed with the applications. The applicant said that she had a nervous breakdown, the symptoms of which lasted for a little over two years, from 1987 onwards and had to receive medical treatment from a neurologist. The applicant also told the Tribunal that her grandmother died in March 1988. Her desire to apply to resume Australian citizenship never disappeared but at the time she needed her family's moral, emotional and psychological support and this was why she suspended the application.
When questioned by the Tribunal about her circumstances from 1990 to 1993, the applicant said that she underwent an abortion in September 1991 and experienced a breakdown in a relationship, and it was not until 1992 that things started to get better and the applicant felt she could focus on her application to resume Australian citizenship. The applicant testified that she was feeling mentally and physically well and came to Australia in October 1992 and in October 1993 for short visits of one month each time, explaining that she could not come for a longer length of time because of work commitments. When questioned during cross-examination why she did not put in her application for Australian citizenship in the time between these two visits to Australia, the applicant testified that this was not the right time for her to make the application and she did not think there was any urgency required in terms of time within which to apply. The applicant said that she only made the application when she felt that it was the right time for her, and that was in 1998.
In November 1993, after her visit to Australia in October 1993, the applicant wrote a letter to the Immigration Section, Australian Embassy, Rome (T13/36-37) and in this letter she explained her situation and mentioned that her mother had an Australian passport. The applicant told the Tribunal that in the letter, she had requested a clarification of this matter as she did not fully understand the reason for which she had been refused to be issued a renewed Australian passport after having been a holder twice, and that she was very interested in resuming her Australian citizenship as she was born in Australia and resided in Australia for 15 years.
The applicant told the Tribunal that the Australian Embassy replied to her letter several months later in a letter dated 17 May 1994, reminding her that she could apply to re-acquire her lost Australian citizenship under s.23B of the Act (T12/28). The applicant told the Tribunal during cross-examination that it was at that time that she first became aware of the concept of special circumstances and any urgency with respect of time in relation to an application to resume Australian citizenship. The applicant said that she did not proceed with the application to resume Australian citizenship for some years after this time because she had established a relationship with an Italian man and she wanted to see how the relationship would develop in Italy. At the time she had also been given extra duties at work. The applicant testified that she believed that there was no particular time limit on the citizenship application form for special circumstances. Coming to live in Australia continued to be an option for her, but in 1994, "it wasn't the right moment" (Transcript, p48).
The applicant told the Tribunal that everything had changed, she felt "serene" (Transcript p.48) and she thought it was the right moment to apply on 25 May 1998, when she filled in the Form 132 "Application to resume Australian citizenship" and sent it to the Australian Embassy in Rome with the requisite accompanying documentation. The applicant said that even though she had been living in Italy for so many years, she desired to return to Australia as she felt that she had a bond with Australia.
The applicant told the Tribunal that her application was refused on the basis that there were no special circumstances that warranted the acceptance of a late declaration. The applicant said that she subsequently had a telephone conversation in early December 1999 with a DIMA officer who confirmed that her application was refused and said that if she wanted to come to Australia, she could come as a migrant or as a tourist. The applicant told the Tribunal during cross-examination that she did not know in 1998 whether she would be able to come to Australia if her application was unsuccessful, as she had not inquired at the time about the alternative ways to establish residence in Australia. The applicant expressed concern that she would have to work in order to afford to live in Australia and that she could not work in Australia with a tourist visa.
The applicant informed the Tribunal that she has visited Australia on five occasions including the current visit to attend the Tribunal hearing. In 1978, she had been unemployed and visited Australia for three months; in 1992 and 1993 she had visited for one month each time and in 1998 she had spent one month in Australia. The applicant explained that she had been given special permission from her work in Italy to undertake her present visit to Australia for four months.
The applicant told the Tribunal that she has no family links within Australia but has friends and quite a few acquaintances in Australia. The applicant provided the Tribunal with a list of the names and addresses of her friends within Australia (T13/39) and said that she was in regular contact with these friends either by letter or telephone every month or two months. The applicant said that she attended high school with some of the listed friends, others she has known since she was a child. The applicant said that she is also godmother to one of her friend's sons.
The applicant testified that she did not have any other links with Australia in terms of recreational, sporting, or social interests but earlier in the year 2000, she had applied for an economic course with the Open Access College in Adelaide. The applicant said that she undertook a number of tests and if she were prepared enough, she would be able to undertake the final examination in mid-November 2000.
When questioned by the Tribunal during examination-in-chief about her intention to return to Australia, the applicant said that she does intend to return to Australia but it would be within three years from the moment that she was granted Australian citizenship. The reasons the applicant gave for this delay in returning to live in Australia were that she has her job in Italy and must give notice, and that in addition, she owns a house in Italy that she would have to either sell or rent. When asked as to where in Australia she would like to live, the applicant told the Tribunal that she would rather live in Melbourne or Sydney than in Adelaide, even though she acknowledged during cross-examination that all of her friends in Australia, except one, were resident in South Australia.
In terms of the kind of work the applicant could do in Australia, the applicant told the Tribunal that as she was currently employed as a clerk, she has some experience in office work and could work in an ordinary office. She also said that she was interested in opening a business, for example, an Italian restaurant or souvenir shop.
When questioned by the Tribunal as to how she would feel about leaving her family to return to Australia, the applicant said that she is older and much more mature now and can stand on her own two feet, and that at this point she has to think about her future. In addition, she said that her parents would always be there whenever she needed them.
When asked by the Tribunal what would happen to her current Italian citizenship if she were granted Australian citizenship, the applicant said that she did not know but that dual citizenship might be a possibility.
submissions of the parties
submissions of the respondent
The respondent submitted that the case is concerned with whether special circumstances existed to warrant the Minister's acceptance of the applicant's declaration for resumption of citizenship more than 22 years after the time that is stipulated in Section 23B of the Act. The respondent submitted that "special circumstances" is not defined in the Act, but guidelines have been issued by the Minister (T3/11) which contain the factors that can be considered when determining whether special circumstances exist to allow for a later application to resume Australian citizenship. The respondent submitted that there are five factors that can be considered: first, why the declaration was not lodged earlier and why it is being lodged now; second, the periods of time the person has spent outside Australia; third, what links by way of family, business or other connections the declarant has maintained; fourth, whether there is an intention of remaining in Australia, or if overseas, an intention to return to Australia; and fifth, the declarant's current citizenship status.

The respondent submitted that the Minister's delegate had looked at the circumstances of the applicant's case and had determined that special circumstances did not exist, by reference to each of the considerations.
First, in relation to why the declaration was not lodged earlier and why it is being lodged now, the respondent submitted that the applicant gave evidence that it was not until 1986 that she became aware that she had lost her Australian citizenship as a result of being granted an Australian passport up until 1986, and that she had lost a good opportunity between the ages of 18 and 19 years to resume her citizenship because of this mistake with the passports.
The respondent submitted that in 1986, however, the applicant did become so aware that she had lost her Australian citizenship and also that she could apply to resume that citizenship, but it took her a further 12 years to make an application for resumption of Australian citizenship under Section 23B. The respondent submitted that the applicant received the correct application form in either late 1986 or early 1987 but still the application to resume her citizenship was not lodged until 1998. It was submitted by the respondent that the applicant did not complete and return the form to the Department due to emotional and family problems that she was having at around that time. Then, between 1986 and 1992, the applicant gave a number of reasons during that period as to why she did not complete that form. However, in 1992 the applicant said she was mentally and physically well again and came to Australia for a one month visit. The respondent submitted that the applicant then returned again to Australia for a holiday in 1993, but it was not until November 1993 that the applicant made any contact with the Department to follow up the resumption of her Australian citizenship. The respondent submitted that there was, therefore, a period of approximately 18 months to 2 years when the applicant's evidence was that she was not suffering from any emotional or physical problems and yet still the application to resume citizenship was not lodged during that period of time.
The respondent submitted that there is another period of time from 1993 until 1998, when the applicant's application for resumption of Australian citizenship was lodged. The respondent submitted that the applicant's reason for delay in completing the application was that it did not feel like the right time to her to make the application or the right time to leave Italy. The respondent submitted that this does not constitute special circumstances.
In relation to the second relevant consideration, the periods of time the person has spent outside Australia, the respondent submitted that apart from four brief trips the applicant has made to Australia, the applicant has been a resident of Italy for 27 years since the age of 15 years.
In relation to the third consideration, the links with Australia that the applicant has maintained in terms of family, business or other connections, the respondent submitted that all of the applicant's friends and family, with whom she has remained very close, live in Italy, she owns a house in Italy and is employed in Italy as well. The respondent conceded that the applicant does maintain contact with people she gave evidence of, and speaks with them once a month or every couple of months, but submitted that apart from that limited contact, there are no other family, business or financial ties to Australia at all.
In relation to the fourth consideration, the person's intention to return to Australia, the respondent submitted that the applicant gave evidence that she intended to return to Australia some time in the future, to a more cosmopolitan area than Adelaide. The respondent submitted that there is nothing concrete in that intention and there has not been any attempt by the applicant to locate a job or purchase a house. It was submitted that the applicant's intention, at its highest, was a desire to return to Australia to live at some time.
In relation to the fifth consideration, the person's current citizenship status, the respondent submitted that the applicant is an Italian citizen and the applicant lives in Italy.
The respondent referred the Tribunal in its submissions to the cases of Re Beertsen and Another and Minister for Immigration and Multicultural Affairs (1997) 45 ALD 726 and Re Catanzaro and Department of Immigration, Local Government and Ethnic Affairs (1994) 34 ALD 791, where an extension of time for resumption of citizenship was refused on the basis that the applicants' circumstances did not constitute special circumstances. The respondent also referred the Tribunal to the case of Re Beadle and the Director-General of Social Security (1984) 6 ALD 1 at 3 where the concept of "special circumstances" was discussed. The respondent submitted that by its very nature, special circumstances is an ambiguous term, but the Minister's delegate in this case, after having looked at the circumstances of the applicant, determined that special circumstances did not exist.
The respondent submitted that there was nothing particularly unusual about the situation the applicant has found herself in, nor was there anything unusual about the circumstances between the years of 1986 and 1998 as put by the applicant to the Tribunal. The respondent submitted that family and personal concerns affect many people over periods of time, but here there was a gap of 12 years after the applicant became aware that she had lost her Australian citizenship and even if family and personal concerns explain part of the delay, it cannot explain the entirety of 12 years.
The respondent further submitted that even if the Tribunal was satisfied as to the applicant's explanation for the delay, it was for the Tribunal to consider if that explanation was so unusual or so special to warrant extending the time for the Minister to accept the Declaration for resumption of Australian citizenship after such a long period of time.
The respondent submitted that there were not any special circumstances in this case which would warrant the Minister accepting the declaration for resumption of citizenship. It was submitted that if the decision was affirmed in this case it would not be a bar to the applicant coming to Australia or residing here at some time in the future.
submissions of the applicant
The applicant submitted that she lost the possibility of applying to resume Australian citizenship when she was between the ages of 18 and 19 years because she believed she was an Australian citizen until 1986, being in possession of a valid Australian passport until this time. The applicant submitted that Form 132, the form for Declaration of desire to resume Australian citizenship, clearly stated that if she had applied between the age of 18 and 19 years, she would have been entitled to resume Australian citizenship without having to meet the special circumstances requirements.
The applicant submitted that because she lost that possibility, she has been compelled to try to fall under the special circumstances category and her application to resume Australian citizenship was refused because the respondent determined there were no special circumstances in her case.
The applicant submitted that her father also had a valid Australian passport until 1986 and it was only then that he found out he was not an Australian citizen any more, at the same time as the applicant and her brother. They all applied for Australian citizenship but their applications were rejected. The applicant submitted that her mother still has a valid Australian passport and is an Australian citizen.
The applicant submitted that she did not apply to resume her Australian citizenship after 1986 until 1998 because of the emotional and personal reasons outlined in her testimony, and that the totality of her circumstances should be seen to be special circumstances.
In terms of her intention to return to Australia, the applicant submitted that she could not come to Australia to live within six months because she has a job and a house in Italy and there would be many things she would have to deal with. The applicant also submitted that she has been looking at the newspaper regularly while in Adelaide to see what is available in terms of businesses and jobs.
the tribunal's findings, reasons and decision
The Tribunal had the advantage of closely observing and listening to the applicant in the giving of her evidence. The applicant was an impressive witness. She did her best at all times to accurately outline the events in question. She was open, frank and honest in the giving of her testimony. The Tribunal has no hesitation in accepting her evidence.
Section 23B of the Act is the operative section for the purpose of these proceedings with the issue being as to whether there are special circumstances which the Tribunal (in the shoes of the respondent) allows for the making and furnishing to the Secretary (or person duly authorized) of the applicant's declaration that she wishes to resume her Australian citizenship within the period which has now elapsed since the applicant attained the age of 18 years.
At the outset, the Tribunal would indicate, in considering whether or not there are special circumstances which would so allow, that it should ordinarily apply the policy formulated by the respondent in the absence of cogent reasons against the application of the policy in question. The relevant policy is set out at 8.2.8 of the "Australian Citizenship Instructions ("the Instructions") issued 12/2/99" to be found at paragraph 23 of Exhibit R4:
"8.2.8People who have lost Australian citizenship in this way may be able to resume it in two ways:
·While under 18, by inclusion in a responsible parent's resumption under s23AA. This may be done at the time the parent is registered, or by later amending the parent's registration.
·By resuming in their own right under s23B. The requirements are that either:
·the person applies within one year of turning 18; or
·the delegate determines that there are special circumstances for allowing a later registration. Relevant considerations for this purpose include the following: why the declaration was not lodged earlier and why it is being lodged now; the periods of time the person has spent outside Australia; what links by way of family, business or other connections the declarant has maintained with Australia; whether there is an intention of remaining in Australia or, if overseas, an intention to return to Australia; and the declarant's current citizenship status."

It is not suggested that the policy is binding in a legislative sense, nor that the above considerations are the only considerations which the respondent and this Tribunal on review can have regard to when assessing as to whether the particular circumstances of this case fall to be described as special. The Tribunal is also mindful of and adopts what Toohey J had to say about "special circumstances" in Re Beadle (supra) at page 3:
"An expression such as 'special circumstances' is by its very nature incapable of precise or exhaustive definition. The qualifying adjective looks to circumstances that are unusual, uncommon or exceptional. Whether circumstances answer any of these descriptions must depend upon the context in which they occur. For it is the context which allows one to say that the circumstances in one case are markedly different from the usual run of cases. This is not to say that the circumstances must be unique but they must have a particular quality of unusualness that permits them to be described as special ".
The history of this matter and the attendant factual circumstances are not in dispute and the Tribunal so finds. The facts show that the applicant was born in and lived in Australia until 1973 when she, at the age of 15 years, went with her parents to live in Italy. At the time, both she and her parents were Australian citizens and holders of Australian passports. On her father re-acquiring Italian citizenship in 1973, the applicant lost her Australian citizenship under ss 17 and 23 of the Act (as they were at 20 July 1973). By virtue of Italian law, the applicant acquired Italian citizenship on her father re-acquiring same. Section 23 of the Act as at 20 July 1973 dictated that (by virtue of the definition of "responsible parent" being the father) where the father ceased to be an Australian citizen by virtue of s17 (ie acquiring the citizenship of another country, in this case Italy) then the applicant, being a child, also lost her Australian citizenship. The applicant, naturally, was unaware of the ramifications of s23. No-one informed her that she had, by virtue of Australian law, lost her Australian citizenship. This remained the situation for some years during which the applicant considered that she was still an Australian citizen. Her belief was fortified by the fact that the Australian Consulate in Milan issued her with a new Australian passport (she retained her current Australian passport after her arrival in 1973) in 1976. Again in 1981 the same Consulate renewed her Australian passport which expired on 16 February 1986. It is no wonder that the applicant was completely unaware that by Australian law she no longer held the status of Australian citizenship. By Australian law she had been an Australian citizen for 15 years and for another 13 years she was led by Australian authorities to continue to believe that that was her status by the re-issuing of Australian passports. It was of no surprise to the Tribunal, bearing in mind the history of this matter, to learn in turn of the applicant's great surprise when in 1986 she was informed that she was no longer an Australian citizen and had not been so since 1973. This information was forthcoming from Australian Consulate authorities as a consequence of the applicant unsuccessfully applying for renewal of her Australian passport in 1986. This led to a written request to the then Minister for Foreign Affairs in June 1986 to reconsider the position she found herself to be in which was not of her doing (T4/17). This evoked the response on 8 August 1986 that she should approach the Australian Embassy in Rome and lodge a declaration of desire to resume Australian citizenship under s23B of the Act (T7/21). This the applicant did on 27 August 1986 (T8/22) by way of a letter (she and her brother) which made it abundantly clear that she was formally applying to re-acquire Australian citizenship. As a consequence, the applicant was provided with a Declaration form to be filled out by her (T9/23). This she did on 19 September 1986. The Australian Embassy then informed the applicant in April 1987 that the wrong form had been provided and that she now needed to fill out a form M132, which was provided. There matters lay until further correspondence between the applicant and Australian authorities (1993/94) as to why the applicant had lost her Australian citizenship. In May 1998 the applicant completed a declaration to resume Australian citizenship (T13/29-31) which was refused on 25 May 1999.
The applicant has given evidence as to the events in her life which have unfolded with the passage of time which might be said to be relevant to explaining why she has not lodged, earlier than 1998, her application to resume Australian citizenship and why she did lodge it in 1998. They have been referred to earlier in these reasons.
The Tribunal has already indicated its acceptance of the authenticity of the applicant's evidence before the Tribunal. This includes an acceptance of the genuineness of the reasons given by the applicant as to why it was not until 1998 that she finally filled out and made on the correct form her application under s23B. Having indicated (with her brother) in 1986 that she wished to resume her Australian citizenship, the applicant was met with a delay in the provision to her of the correct application form. It was at about that time, as the Tribunal understands the applicant's evidence, that matters personal to the applicant unfolded which led to the applicant not making further application until 1998. Throughout that time the Tribunal accepts, that whilst the applicant maintained her desire to resume citizenship, she felt the time was not right or appropriate to do so because of the events which unfolded. The Tribunal is of the view that the applicant's situation was not one of a person sitting needlessly on their rights. The applicant has always wanted to return to Australia and to resume her citizenship. The events which have delayed that process are, in the opinion of the Tribunal, understandable, but do not however fall to be described in themselves as special circumstances. Those life events between 1986 and 1998 are events which occur from time to time in many peoples' lives. They do not possess that quality of being unusual, uncommon or exceptional when viewed in isolation.
The Tribunal is mindful of the period of time which the applicant has now spent outside of Australia, ie since 1973. This lengthy period of time must of course be put in perspective however. In this regard it must be remembered that the applicant has visited Australia on a number of occasions, the last being to include giving evidence before this Tribunal on the hearing of her application for review of the respondent's decision in this matter. The applicant has, since 1973, also maintained regular links with a number of friends she has in Australia. These links are communications by way of telephone and/or letter and when visiting friends in Australia.
The Tribunal is mindful that the applicant has indicated that she will return within 3 years to live in Australia if her s23B application is successful. That is the period she has maintained will be needed to effectively bring about the transfer from Italy to Australia. This period, whilst lengthy, accords with the Tribunal's impressions of the applicant as being a person who goes about her life with a degree of sensitivity and care. It does not indicate in any way a lack of genuineness on behalf of the applicant to reside permanently in Australia. In this regard, the Tribunal formed the impression in the giving of her evidence that the applicant has an abiding affection for the country of her birth.
As to the last of the respondent's policy criteria, the Tribunal is aware of the applicant's current Italian citizenship status which she acquired courtesy of her father's application back in 1973.
The Tribunal now returns to earlier events in the history of this matter. In 1973 the applicant lost her Australian citizenship courtesy of the actions of her father and the provisions of s17 and s23 of the Act. It was not until 1986 that the applicant was made aware of that fact, which was not brought about by any conscious decision on her part. The applicant was also not appraised until 1986 of the fact that she could have lodged, within one year of attaining the age of 18 years, an application for resumption of her Australian citizenship (s23B) (with no requirement as to special circumstances) and had she done so she would have again become an Australian citizen. The Tribunal accepts that had she been so appraised, the applicant would have so applied and would have regained her citizenship. The Tribunal also takes into account that as soon as she was appraised in 1986, the applicant did indicate in writing her desire to resume citizenship and filled in the form supplied to her. Had the correct form been supplied at the outset to the applicant, she no doubt would have filled it in and, bearing in mind that up until then the applicant was led by the appropriate Australian authorities to believe that she was still an Australian citizen because of the continual provision of Australian passports, the Tribunal has no doubt that the respondent would have readily accorded special circumstances to the applicant's situation and allowed her to resume her Australian citizenship there and then. The fact that other life events then impinged upon the applicant and delayed the eventual application in 1998 does not, in the opinion of the Tribunal, neutralize or override the earlier circumstances which clearly fall to be described as unusual, uncommon and exceptional. They were, in every sense, special circumstances and the Tribunal so finds. In the opinion of the Tribunal those circumstances permeate and make the totality of circumstances special for the purposes of s23B of the Act.

The Tribunal would also indicate in considering the total circumstances that it has taken into account that the applicant was born in Australia, received most of her formal education here, has a very good command of the English language, is industrious, has held responsible employment and is an intelligent person who, if allowed to now resume her former Australian citizenship will do so with distinction.
The decision of the Tribunal is that the decision under review is set aside and in substitution therefor it is decided that special circumstances do exist such as to allow the period from 1 year after the applicant attained the age of 18 years to the date upon which the respondent received the applicant's declaration of resumption of Australian citizenship in 1998 to be the relevant period for the purposes of s23B of the Act.
I certify that the 55 preceding paragraphs are a true copy of the reasons for the decision herein of Deputy President B.H. Burns
Signed:         ................…………..........……
  Barbara Armstrong (Associate)
Date/s of Hearing  29 September and 3 November 2000
Date of Decision  12 April 2001
Counsel for the Applicant        In Person
Counsel for the Respondent    Ms N Ware
Solicitor for the Respondent    Australian Government Solicitor