Eddison and Minister for Immigration and Multicultural Affairs - [2001] AATA 533

DECISION AND REASONS FOR DECISION [2001] AATA 533

ADMINISTRATIVE APPEALS TRIBUNAL )

) No A1999/28

GENERAL ADMINISTRATIVE DIVISION       )
           Re      NICHOLAS JOHN EDDISON
  Applicant
           And    MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS
  Respondent

DECISION

Tribunal Senior Member J.A. Kiosoglous MBE

Date15 June 2001
PlaceCanberra

Decision      Pursuant to section 43 of the Administrative Appeals Tribunal Act 1975, the Tribunal affirms the decision under review.
  (Signed)
  J.A. KIOSOGLOUS
  (Senior Member)
CATCHWORDS
IMMIGRATION & CITIZENSHIP – registration of Australian citizenship by descent – whether mother committed voluntary and formal act in assuming Italian citizenship – characterisation of mother's loss of Australian citizenship
Australian Citizenship Act 1948 cc.10, 17
Re Turner and Minister for Immigration and Multicultural Affairs [1999] AATA 904
Re Playford and Minister for Immigration and Multicultural Affairs [2001] AATA 15
Minister for Immigration, Local Government and Ethnic Affairs v Gugerli (1992) 36 FCR 68
Re Desira and Minister for Immigration and Multicultural Affairs [2000] AATA 32

REASONS FOR DECISION

15 June 2001 Senior Member J.A. Kiosoglous MBE

This is an application by Mr Nicholas John Eddison (the applicant) for review of a decision of a delegate of the respondent as advised to the applicant by an officer of the Australian High Commission in London on 20 January 1999 (T1/4) denying his application for registration as an Australian citizen by descent.
The Tribunal received into evidence the documents lodged pursuant to s.37 of the Administrative Appeals Tribunal Act 1975 (T1-T20), together with six exhibits, four lodged by the applicant (Exhibits A1-A4) and two lodged by the respondent (Exhibits R1-R2). In addition, the Tribunal heard evidence from the applicant, who represented himself. Ms J. Kapel, a departmental advocate, represented the respondent.
history of the application
The applicant applied for registration of Australian citizenship by descent on 21 April 1998 (T4). A delegate of the respondent on 4 January 1999 (T14) rejected this application, stating (inter alia):
"…
When Mr Eddison applied for registration of Australian citizenship by descent in April 1998, his mother was not an Australian citizen at that time. His mother lost Australian citizenship under section 17 of the Australian Citizenship Act 1948 when she made application under Article 5 of the Italian Nationality Laws and acquired Italian citizenship on 18 July 1993.
…"

This decision was advised to the applicant by letter dated 20 January 1999 (T1/4).
legislation

Section 10C of the Australian Citizenship Act 1948 (the Act) provides (inter alia):
"(1)     A person who is registered under this section is an Australian citizen.
(2)      A person may apply to the Minister to be registered under this section.
(3)      The application must be in accordance with the approved form.
(4) The Minister must register, in the prescribed manner, an applicant for registration under this section if:
(a) a natural parent of the applicant was an Australian citizen at the time of the birth of the applicant; and
(b)      that parent:
(i)is an Australian citizen at the time an application under this section is made; or
(ii)is dead and at the time of his or her death was an Australian citizen; and
(c)      the applicant:
(i)       was born outside Australia on or after 26 January 1949; and
(ii) is aged 18 years or over on the day on which this section commences; and
(iii) failed for an acceptable reason to become registered as an Australian citizen under:
(A)section 10B; or
(B)section 11 of this Act as in force at any time before the commencement of section 10B; and
(d)       the Minister is satisfied that the applicant is of good character.
Note: acceptable reason is defined in subsection (5).
(5)For the purposes of subparagraph (4)(c)(iii), an applicant has an acceptable reason if and only if:
(a)       an Australian passport has been issued to the applicant; or
(b)the applicant's name has been on an Electoral Roll under the Commonwealth Electoral Act 1918; or
(c) the applicant was unaware of the requirement of registration for the purposes of obtaining Australian citizenship by descent under section 10B or under section 11 of this Actindex.html as in force at any time before the commencement of section 10B; or
(d)the applicant has a reason for failing to become registered that is declared by the regulations to be an acceptable reason for the purposes of this section.
(6)If the Minister decides not to register an applicant under this section, the Minister must inform the applicant of that decision by written notice served personally or by post.
(7)       A notice served on an applicant under subsection (6) must include:
(a)       reasons for the decision; and
(b)notification of the applicant's entitlement to apply for review of the decision under section 52A."
At issue in this case is the question of whether or not the applicant satisfies sub-paragraph 10C(4)(b) of the Act. This sub-paragraph requires that one of the applicant's parents be an Australian citizen as at the time of his application. The parent in question in this case is the applicant's mother, who was originally an Australian citizen by birth. Section 17 of the Act sets out the circumstances in which citizenship is lost upon acquisition of another nationality:
"(1)A person, being an Australian citizen who has attained the age of 18 years, who does any act or thing:
(a)       the sole 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 (1) does not apply in relation to an act of marriage."
The Tribunal has before it two translations of Articles 5 and 7 of the Italian Nationality Laws, one provided by the respondent (T13/49-50) and one obtained by the Tribunal at the applicant's request in the interlocutory stages of these proceedings (Exhibit R2). The respondent's version of the said articles reads as follows (T13/49-50):
"…
Article 5
1.The foreign or stateless spouse of an Italian citizen acquires Italian citizenship when he/she has legally resided in the territory of the Republic for at least six months, or after three years from the date of the marriage if so dissolution, annulment or cessation of civil effect has occurred and if no legal separation exists.
…
Article 7
1.Citizenship according to Article 5 is acquired by decree of the Minister for the Interior, on application from the interested party presented to he mayor of the municipality in which he/she resides or to the relevant consular authority.
2.The regulations described in Article 3 of Law no. 13 of 12 January 1991 apply.
…"
The translation of the said articles obtained by the Tribunal reads as follows (Exhibit R2):
"Article 5
The spouse of an Italian citizen, be he/she a foreigner or a person without citizenship, acquires Italian citizenship when he/she has been legally residing in the Territory of the Republic of Italy for at least six months or after three years from the date of marriage if its effects under civil legislation have not been dissolved, annulled or terminated, and if there is no legal separation.
Article 7
1.Under Article 5, citizenship can be acquired through a decree by the Minister of the Interior, following request by a person, lodged with the Mayor of the town of residence or the responsible Consular Authority.
2.The provisions under Article 3 of 12 January 1991 Law No 13 are applicable."

applicant's evidence and submissions

Mr Eddison told the Tribunal that he was born in Germany on 2 December 1970 at a military hospital on English soil, whilst his parents served with the British forces in Germany. He went to school in England. His mother was born in Sydney, Australia, and his father was born in Leeds, England.
Mr Eddison's mother married an Italian citizen on 18 July 1991 (T12/47), having previously divorced the applicant's father. The applicant contended that it was this step of marriage that gave rise to his mother acquiring the right to Italian citizenship, and that she did not take a step independent of marriage in order to acquire Italian citizenship.
The applicant referred to Articles 5 and 7 of the Italian Nationality Laws and stated that Article 5 was that which bestows Italian citizenship, as the act of marriage creates the positive right to Italian citizenship. He submitted that Article 7 only represents the administrative process that must be followed in order to implement the right acquired pursuant to Article 5. He further submitted that Article 7 could not exist without Article 5 creating a positive entitlement to acquire citizenship.
The applicant referred to the particular wording of the Italian Articles, and to Italian dictionary definitions for which he provided translations. In his submission, the use of the word "giurisdizione" in Article 7 indicated that it is directed at processes, whilst Article 5 is directed at rights. The use of the word "petition", in the applicant's submission, refers to something which only requires an administrative stamp of approval, and is already a given right. He further submitted that his mother actively became an Italian citizen by virtue of living for over six months in Italy, and not by any separate or independent act. He referred the Tribunal to Re Turner and Minister for Immigration and Multicultural Affairs [1999] AATA 904 and submitted that the sole or dominant purpose looks to the real purpose or reason as to why something was done. He also submitted that when his mother took documents to the Mayor it was merely an administrative fulfilment of the Article 5 right that had been bestowed on her by marriage. In order to take that step, the right under Article 5 must be pre-existing.
The applicant considered that his mother's retrospective loss of Australian citizenship was erroneous due to the incorrect application of the law.
respondent's submissions
Ms Kapel submitted, on behalf of the respondent, that the applicant's mother undertook a formal process to acquire Italian citizenship as outlined in the applicant's letter dated 25 September 2000 (Exhibit A3). The Tribunal notes the following from that letter:
"…
In February 1992 my mother presented an instance to the Rome Prefecture, via the town hall, to be recognised as an Italian citizen. This was on the grounds of her marriage, to her Italian husband, 6 months previously. (It has already been established, during this appeal, that a foreign national who marries an Italian citizen must fulfil the allotted residency criteria, of 6 months if resident in the jurisdiction or 2 years if resident outside the jurisdiction). She had to also present the following documents: birth certificate; certificate of residence; marriage certificate; penal certificates from the Public Prosecutors Office and from the Rome Law Courts to show that she had no criminal record; certificate of good conduct, certificate of no penal charges in course; declaration from the British embassy to say that she had no criminal record; authority to contact the Belgian Law Courts to request any criminal records for the period she had lived in Belgium, (1983-88); declaration of her earned income in Italy for the previous year. Then in 1994 she was asked to go to the central registry of the Rome Town Hall where she acquired Italian citizenship.
It is of note that amongst these documents was her marriage certificate. My mother has confirmed to me that without the said document no registration would have taken place, for it would not be possible under Italian Law. She has also confirmed to me that this process if the only way a foreign national can be registered as an Italian citizen, having married an Italian national. Therefore this process follows on directly from her marriage, even though there are considerable time lapses from that event until citizenship is bestowed. As indicated before, due to residency criteria and the general speed with which processing of information in the Italian bureaucracy occurs.
…"
Ms Kapel further submitted that without attending the Italian registry and presenting the various documents required, the registration of Italian citizenship would not have occurred. She also submitted that the act of marriage to an Italian citizen alone did not grant automatic citizenship, and that the applicant's mother was not forced to take the further steps to register as an Italian citizen, but clearly chose to do so, as it was to her advantage.
Ms Kapel submitted that Article 5 of the Italian Nationality Laws sets up an entitlement to seek registration as an Italian citizen, but Article 7 is that which must be complied with in order to establish citizenship.
discussion and findings
Section 17 of the Act has been the subject of much debate in recent times, and the Tribunal notes that calls were echoed in the media of recent times for it to be abolished to allow dual citizenship. This Tribunal has previously expressed its feelings in relation to section 17 of the Act (see Re Playford and Minister for Immigration and Multicultural Affairs [2001] AATA 15 at paragraph 27).
At the core of this matter, is whether or not the applicant's mother committed an act, aside from becoming married, the sole or dominant purpose of which was to acquire Italian citizenship prior to the applicant's application for Australian citizenship by descent. The Tribunal is required to consider therefore, whether the applicant's mother's actions subsequent to her marriage constituted acts independent of that marriage, so as to satisfy sub-section 17(1), and not attracting the exemption offered by sub-section 17(2) of the Act.
In Minister for Immigration, Local Government and Ethnic Affairs v Gugerli (1992) 36 FCR 68, Davies J considered section 17 at some length. In that case, Mrs Gugerli had travelled to Switzerland on an Australian passport, and sought formal recognition of her Swiss citizenship in writing from the relevant authorities, having being led to the understanding that such would not affect her Australian citizenship. Davies J goes on to state (inter alia at p72-3):
"…
As can be seen, the test looks to the factors which influenced the mind of the person doing the act, factors which actuated the carrying out of the step…[it] referred to the real reason or reasons for, or the real purpose or purposes of, the conduct and to what was in truth the object in the minds of the relevant persons when they engaged in the conduct.
…
Although "purpose" in the sense in which the word is used in s 17 looks to a state of mind, it is not to be equated in all respects with motive. If a person's sole or dominant purpose in doing an act is to acquire the citizenship of another country, it matters not why the person wishes to acquire the citizenship or what use he or she will make of it. The motive for acquiring the citizenship is irrelevant. It is sufficient that the act is done with the sole or dominant purpose of acquiring it. … "
In Re Playford, the Tribunal found that there was a formal and voluntary application to become an American citizen in circumstances where an application was lodged, and citizenship eventually conferred with the involvement of the US District Court of the District of Hawaii (see paragraph 29 therein).
In Re Desira and Minister for Immigration and Multicultural Affairs [2000] AATA 32, Senior Member Dwyer considered the meaning of "acquire" following on from Gugerli , drawing a distinction between "retaining" a citizenship and acting to "acquire" a citizenship, albeit in that case for the purposes of the application of section 23AA of the Act.
In Re Turner, Deputy President Forest considered a case in which Mr Turner's father only became a citizen of the United Kingdom as he was unable to produce his father's birth certificate and thus obtain an Australian passport. That case concerned section 17 prior to the 1984 amendments however, and so did not consider the purposive element as introduced by the "sole or dominant purpose" test.
In the present matter, the question is whether the applicant's mother did "any act or thing" outside of the marriage, so as to effect Italian citizenship. In that regard, the Tribunal has given careful attention to both translations of the Italian Articles that are before it. Clearly, Article 5 gives rise to a right to Italian citizenship, and indeed, could perhaps be seen to convey citizenship of itself, subject to the requirements being met. Article 7 commences however, to qualify Article 5, by imposing requirements which must be fulfilled in order to acquire Italian citizenship pursuant to Article 5.
The Tribunal finds, as a matter of fact, that the applicant's mother's actions in February 1992 constitute an "act or thing" to acquire Italian citizenship for the purposes of sub-section 17(1), independent of the act of marriage itself. Sub-section 17(1) does not seek to draw a distinction between administrative acts and other formal acts or things. It merely says "any act or thing".
In this case, the applicant's mother clearly performed acts above and beyond the act of marriage for the purposes of attaining Italian citizenship, as indicated in the extract from Exhibit A3 cited above. She presented on one occasion to the Rome Prefecture, and presented on a further occasion at the central registry of the Rome Town Hall. She obtained a large variety of documentation, and provided declarations of income, and authority to investigate whether or not she had any criminal record in a foreign realm. The entirety of these acts cannot be said to fall within the category of being mere administrative matters associated with the marriage itself, for presumably, independent of the act of marriage, failure to comply with any one of the additional requirements could prevent the applicant's mother from having obtained Italian citizenship. The Tribunal finds that the sole purpose of all these acts was to enable the acquisition of Italian citizenship.
Accordingly, the Tribunal is satisfied, and so finds, that prior to his application for Australian citizenship by descent, the applicant's mother had lost her Australian citizenship pursuant to sub-section 17(1) of the Act by performance of acts in 1992, the sole purpose of which was to acquire Italian citizenship. For the purposes of sub-paragraph 10C(4)(b) of the Act, as at the time of his application therefore, neither of the applicant's parents were Australian citizens.
The Tribunal notes that legislative change in this area may soon occur. Until such time however, the Tribunal cannot assist the applicant.
decision
For the above reasons, and pursuant to section 43 of the Administrative Appeals Tribunal Act 1975, the Tribunal affirms the decision under review.
I certify that the 27 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member J.A. Kiosoglous MBE
Signed:         ............................................................................
  Personal Assistant
Date/s of Hearing  17 May 2001
Date of Decision  15 June 2001
Counsel for the Applicant        In person
Solicitor for the Applicant         -
Counsel for the Respondent    Ms J. Kapel
Solicitor for the Respondent    DIMA