Finn and Minister for Immigration and Multicultural Affairs - [2000] AATA 823

DECISION AND REASONS FOR DECISION [2000] AATA 823

ADMINISTRATIVE APPEALS TRIBUNAL )

) No S1999/430

GENERAL ADMINISTRATIVE DIVISION       )
           Re      PATRICK JOSEPH FINN
  Applicant
           And    MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
  Respondent

DECISION

Tribunal Senior Member J.A. Kiosoglous MBE

Date14 September 2000
PlaceAdelaide

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
CITIZENSHIP – resumption of Australian citizenship – intention to return to Australia to commence residing within three years – intention of applicant considered
Australian Citizenship Act 1948 ss.17, 23AA
Re Smout and Minister for Immigration and Multicultural Affairs [2000] AATA 370

REASONS FOR DECISION

14 September 2000 Senior Member J.A. Kiosoglous MBE

This is an application by Mr Patrick Joseph Finn (the applicant) for review of a decision of a delegate of the respondent dated 10 September 1999 (T9) which refused the applicant's application for resumption of Australian citizenship pursuant to section 23AA of the Australian Citizenship Act 1948 (the Act).
The Tribunal received into evidence the documents lodged pursuant to s.37 of the Administrative Appeals Tribunal Act 1975 (T1-T10), together with two exhibits by the respondent (Exhibits R1-R2). In addition, the Tribunal heard evidence from the applicant, who represented himself. The respondent was represented by Ms Nerida Ware, of counsel. The applicant is currently residing in the United Kingdom and he was present throughout the hearing y way of telephone.
The issue for the Tribunal is whether or not the applicant should be entitled to resume his Australian citizenship pursuant to section 23AA of the Act.
history of the application
The applicant was born in Australia on 8 April 1962. He graduated as a doctor from Flinders University, South Australia, in 1987 and pursued surgical training, research and teaching work in New Zealand from 1989 until 1995.
In 1995 the applicant moved to the United Kingdom in order to work as a surgeon and undertake surgical training, and has worked in that capacity in Scotland ever since. In 1995, whilst still in New Zealand, the applicant applied for Irish citizenship, in order to work in the longer term in the United Kingdom and for ease of travel. He was granted Irish citizenship on 1 June 1995, having grandparents of Irish descent. In so receiving Irish citizenship, he automatically lost his Australian citizenship, pursuant to sub-section 17(1) of the Act. He did not realise his loss of Australian citizenship.
The first of the applicant's two children was born in June 1998. He attended the Australian High Commission in London with a view of registering his son as an Australian citizen. This was denied on the ground that the applicant was no longer an Australian citizen.
On 11 January 1999 the applicant applied to resume Australian citizenship pursuant to section 23AA of the Act, but was rejected by the respondent on 10 September 1999 (T9).
legislation
Sub-section 17(1) of the Act states:
"17.(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.
…"
A person who has ceased to be an Australian citizen pursuant to section 17 of the Act may furnish a statement to the respondent, in writing, pursuant to sub-paragraph 23AA(1)(b) of the Act, together with a prescribed declaration pursuant to sub-paragraph 23AA(1)(c) of the Act. Following receipt of this information, the Minister may, in the Minister's discretion, register the declaration pursuant to sub-paragraph 23AA(1)(e) of the Act, and upon such registration, the person will again become an Australian citizen. The statement, pursuant to sub-paragraph (b) of the Act, must accord with the requirements therein which state:
"23AA.(1) Where
…
(b)the person furnishes to the Minister a statement, in writing, to the effect that:
(i)if the person had not done the act or thing, the person would have suffered significant hardship or detriment; or
(ii)at the time when the person did the act or thing the person did not know that he or she would, as a consequence of doing the act or thing, cease to be an Australian citizen;
and also stating that the person:
(iii)has been present in Australia (otherwise than as a prohibited immigrant, as a prohibited non-citizen, as an illegal entrant, as an unlawful non-citizen, or in contravention of a law of a prescribed territory) for a period of, or for periods amounting in the aggregate to, not less than 2 years;
(iv) intends that:
(A)if the person again becomes an Australian citizen and is residing in Australia at the time when the person so becomes an Australian citizen, the person will continue to reside in Australia after so becoming an Australian citizen; or
(B)if the person again becomes an Australian citizen and is not residing in Australia at the time when the person so becomes an Australian citizen, the person will commence to reside in Australia after so becoming an Australian citizen and before the expiration of the period of 3 years commencing on the day on which the statement is made; and
(v)has maintained a close and continuing association with Australia; and
…"

applicant's evidence and submissions

The applicant told the Tribunal that prior to leaving New Zealand, he was told by the Australian High Commission in New Zealand that getting Irish citizenship would not cause any problems in terms of his Australian citizenship.
He stated that he also became aware that his Australian citizenship had lapsed when he attempted to travel to Australia in late 1998. He told the Tribunal that he did not know that his Australian citizenship would cease upon receipt of Irish citizenship.
He stated that it is difficult to say exactly when he will return to Australia. He further stated that had he known about the three-year requirement at the time of completing the declaration and statement in December 1998, he would have put that he would return in three years. He also stated that it has always been his intention to return to Australia once he has completed adequate surgical training. He told the Tribunal that his return was dependent upon suitable employment being available, and that he keeps in touch with the Australian job market through friends, journals and the College of Surgeons. He stated that he intends to return by December 2001.
discussion and findings
The Tribunal notes that the respondent is satisfied as to all other requirements of section 23AA of the Act, save and except for sub-paragraph 23AA(1)(b)(iv)(B). That sub-paragraph requires that a person in the applicant's position intends to return to commence to reside in Australia within three years of signing such a statement. In this case the statement was made on 30 December 1998 (T7), hence he would have to have returned by no later than late December 2001. The Tribunal, in the shoes of the Minister, must be satisfied as to the truth of any such statement that is made (sub-paragraph 23AA(1)(d) of the Act).
The requirements of sub-section 23AA(1)(b) are mandatory, and either (A) or (B) of sub-paragraph 23AA(1)(b)(iv) of the Act must be met, as Deputy President Forrest notes in Re Smout and Minister for Immigration and Multicultural Affairs [2000] AATA 370 at paragraph 21 (inter alia):
"21. The difficulty in the path of Mr Smout is satisfying the mandatory requirement of either (A) or (B) of sub-para. (b)(iv) in conjunction with sub-para (b)(v). As Mr Smout is not residing in Australia nor does he intend to return to Australia to live within three years he cannot satisfy the terms of either (A) or (B) of sub-para. (b)(iv). …"
(this Tribunal's emphasis).
This means that for a person residing outside of Australia, they must satisfy the Minister that they intend that, if they become an Australian citizen again, they will commence residing in Australia within three years of making the statement to that effect.
The difficulty for the Tribunal in this case is that it has a number of conflicting statements from the applicant. In his declaration dated 30 December 1998 he states an intention to return "once I have completed adequate surgical training" (T7/23). In an further statement made sometime prior to 27 August 1999 (T8) he stated (inter alia) "I hope to return to Australia within the next 5 years – this depends as much as anything on there being a suitable position for me to take up on my return".
In oral evidence, he reaffirmed that his return was predicated upon suitable work being available, and he noted the difficulties involved in uprooting his wife and young children. The applicant concluded his evidence by stating that he has always intended to return by December 2001.
In the Tribunal's opinion there are many other complicating factors involved here, meaning that the applicant's stated intention to return by December 2001 is by no means a definite intention. The applicant could not say that there was any degree of certainty to his stated intention, and was somewhat circumspect in giving his evidence in this regard. He may hope to return to Australia by December 2001, but a hope and a definite intention are two different things. The applicant is currently settled in Scotland with a wife and young children. He has an ongoing contract of employment. Whilst there is evidently some employment available in Australia in his field, he has not as yet applied for, or secured any such employment. Until such time as the applicant took any steps towards actually applying for such work, or indeed, made any steps towards moving back to Australia, the Tribunal cannot be satisfied that there is an intention on his behalf to commence living here by December 2001. The circumstances of this case simply do not bear out such an intention.
Accordingly, the Tribunal finds that sub-paragraph 23AA(1)(b)(iv)(B) of the Act is not satisfied.
In conclusion, the Tribunal would note that it appreciates the applicant's frustration. He is a highly qualified surgeon, who headed overseas to gain further experience. If and when he does return to Australia, he would be a valuable community asset. Further, it is indeed unfortunate if the Australian High Commission in New Zealand gave him misleading advice. The Tribunal is not fully appraised of the dealing the applicant had with the High Commission however, and considers that depending on the circumstances and the questions asked, the advice of the High Commission may have been entirely appropriate. The Tribunal is not in a position to draw any conclusion on this aspect.
The Tribunal would note that the applicant is in no way barred from making fresh application for resumption of his Australian citizenship at such time as he can demonstrate that he has a definite intention to return to Australia to commence residence here. Were he to secure employment in Australia, for example, and have demonstrable evidence of an intent to return to take up such employment within the required time limits, he would not have a problem in having his Australian citizenship restored. As at the present time however, the applicant does not satisfy the mandatory legislative requirements.
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 22 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  5 September 2000
Date of Decision  14 September 2000
Counsel for the Applicant        In person (by phone)
Solicitor for the Applicant         -
Counsel for the Respondent    Ms Nerida Ware
Solicitor for the Respondent    AGS