Grace Heiner and Minister for Immigration and Citizenship
[2012] AATA 933
[2012] AATA 933
Division GENERAL ADMINISTRATIVE DIVISION File Number
2011/3448
Re
Grace Heiner
APPLICANT
And
Minister for Immigration and Citizenship
RESPONDENT
DECISION
Tribunal G. D. Friedman, Senior Member
Date
5 December 2012 Date of
written reasons8 January 2013 Place Melbourne For reasons given orally at the hearing, the Tribunal affirms the decision under review.
............................[sgd]............................................
G. D. Friedman, Senior Member
CITIZENSHIP – citizenship by decent – sole or dominant purpose test – marriage exception does not apply – neither of applicant’s parents Australian citizens at time of birth - decision under review affirmed.
Australian Citizenship Act 2007 ss 16(2), 17
Australian Citizenship Act 1948 s 17
Australian Citizenship Bill 2005
Irish Nationality and Citizenship Act 1956 (Ireland)
Irish Nationality and Citizenship Act 1986 (Ireland) s 8
Minister for Immigration, Local Government and Ethnic Affairs & Gugerli (1992) 36 FCR 68
Eddison and Minister for Immigration & Multicultural Affairs 2001 AATA 533
Heiner and Minister for Immigration and Citizenship [2012] AATA 236REASONS FOR DECISION
G. D. Friedman, Senior Member
8 January 2013
A delegate of the Minister for Immigration and Citizenship made a decision on 29 July 2011 that refused an application by the applicant, Grace Heiner, for Australian citizenship on the basis that neither of her parents was an Australian citizen at the time. Grace through her father, Phillip Heiner, lodged an application for review with the Administrative Appeals Tribunal. That application was heard at a hearing on 20 February 2012. The Tribunal consisting of Member Regina Perton OAM, made a decision on 26 April 2012 affirming the decision under review.
The applicant lodged an appeal to the Federal Court and the Federal Court made an order on 28 August 2012. The judge was Gray J who by consent remitted the matter to the Administrative Appeals Tribunal for redetermination by a differently constituted Tribunal according to law. In a document lodged with the Tribunal, and dated 27 August 2012, signed by David Brown, a lawyer employed by the Australian Government Solicitor who is for the Minister, that document states that:
Pursuant to practice note CM3, we the parties agree that the orders sought in the attached consent under rule 39.11 of the Federal Court Rules 2011, are justified for the following reasons:
1) The tribunal failed to make a specific finding on the question of whether the applicant’s father had done a thing or act, the dominant purpose of which and the effect of which was that he acquired citizenship of a foreign country as then provided for under section 17, subsection (1) of the Australian Citizenship Act 1948, Commonwealth.
2) As such a finding was a necessary precondition for the tribunal’s ultimate determination of the application for review and had not been specifically made, the decision of the Tribunal was infected by jurisdictional error.
And that’s the end of the document. Therefore, in rehearing the matter today, I am required to correct the jurisdictional error identified in that document according to the orders made by consent by Gray J of the Federal Court. I have received a number of documents from Mr Heiner since the Tribunal’s hearing. I have also received some correspondence from the Minister’s representative since the hearing. I have already indicated to Ms Kirwan, who is Mr Heiner’s wife, that I have read all the material submitted to me since the hearing. I have also read the transcript in its original form and as annotated by Mr Heiner. I have read all the documents that were presented to the Tribunal before Ms Perton made her decision.
I note that Mr Heiner has identified a number of concerns among which are that both the Department and the Tribunal failed to satisfy the sole and dominant purpose test, he also said that none of his contentions appeared in the Tribunal’s decision. He said that false and misleading evidence was used in the decision. He said that the remitted hearing, that is today’s rehearing, should not be limited to reconsidering the original departmental decision, but that the Department should remake its decision first before it comes to the Tribunal. And he said that the Australian Citizen Instructions differs from the law in that the instructions place a burden of proof on the Australian Citizen who acquired foreign citizenship when in fact it should be the decision maker. And Ms Kirwan today told me that, or emphasised it in the material provided by Mr Heiner, there is further jurisdictional error. She said that some material is contemptuous and I have taken into account those comments as well as the documents.
I note that there is no requirement for the Tribunal to include in this decision all material that is provided by parties or all submissions that are made by parties. In respect of the actions of the Department in making the decision, including allegations of an absence of procedural fairness, of bias by the Department, and of administrative mistakes in the process of making the decision, it is not the role of this Tribunal to look at the administration of a Government agency. That is a matter for other bodies such as the Commonwealth Ombudsman. It is the Tribunal’s role to make the correct or preferable decision in accordance with the legislation that applies in this particular case. And in saying that, I reiterate that I have taken into account everything that Mr Heiner has said.
Now, there is no dispute regarding a number of the factual matters in this case. They are that the applicant was born in March 2011. She was born in Spain. Her mother is a citizen of the United Kingdom. Mr Heiner acquired Irish citizenship when he married his former wife, Mr Moroney, who was an Irish citizen. The Minister’s delegate determined that Mr Heiner had lost his Australian citizenship in 1999 when he became an Irish citizen as a result of legislative provisions of Ireland and Australia that existed at the time. Then the Department, through its delegate, determined that Mr Heiner had not regained his Australian citizenship since losing it 1999. Therefore, the Department said that the applicant was not entitled to Australian citizenship by descent, because she did not have a parent who was an Australian citizen.
It’s clear from all the documents, and of course it’s clear from the proceedings of this Tribunal when it held its hearing in February 2012, that Mr Heiner disagrees with the decision that he lost his Australian citizenship particularly as his Australian passport was renewed in 2011 for a further period of 10 years. And I need to decide whether Mr Heiner was an Australian citizen at the time of the applicant’s birth, if he was, then the applicant is eligible for Australian citizenship by descent. Now, the relevant legislation is not in dispute. The Australian Citizenship Act 2007 sets out the criteria for grant of citizenship by descent in section 16(2) which states:
A person born outside Australia on or after 26 January 1949 is entitled to become an Australian citizen if:
(a) A parent of the person was an Australian citizen at the time of the birth.
Section 17(1A) of the Act states that:
The Minister must not approve an application for citizenship where an applicant is not eligible for its grant due to a failure to meet the requirements of section 16(2) or 16(3).
And 16(2) is the only relevant section in this matter. Section 4(2) of the Act explains whether a person was an Australian citizen when the Act commenced, and provides that the previous legislation which is the Australian Citizenship Act 1948 (the 1948 Act), is to be taken into account. Section 17 of the 1948 Act is the relevant section and is the key section of the Act and is in fact the basis of the application that is before me today. Section 17 outlines the circumstances in which a person loses Australian citizenship when acquiring another nationality, and section 17(1) states:
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.
Subsection (2):
Subsection (1) does not apply in relation to an act of marriage.
So the question is whether Mr Heiner satisfies subsection (1) and subsection (2). But before I decide that, I must note that the legislation for Ireland under which Mr Heiner obtained Irish citizenship is, the Irish Nationality and Citizenship Act 1956 (Ireland), which was amended by the Irish Nationality and Citizenship Act 1986 (Ireland). Section 8 of the 1986 Act stated at the relevant time:
(1) A person who is an alien at the time of that person’s marriage to a person who is, or who after the marriage becomes, an Irish citizen (otherwise than by naturalisation or by virtue of this section or section 12) shall not become an Irish citizen merely by virtue of the marriage, but may do so by lodging, not earlier than three years from the date of the marriage or from the date on which the person last mentioned became an Irish citizen (otherwise than as aforesaid), whichever is the later, a declaration in the prescribed manner with the Minister, or with any Irish diplomatic mission or consular office, accepting Irish citizenship as post-nuptial citizenship provided that:
(a) The marriage is subsisting at the date of lodgement of the declaration and
(b) the couple are living together as husband and wife and the spouse who is an Irish citizen submits an affidavit to that effect when the declaration has been lodged.
Subsection (2) stated:
A person who lodges a declaration under subsection (1) shall be an Irish citizen from the date of lodgement.
Now, the question is was Mr Heiner an Australian citizenship at the time of the applicant’s birth. Mr Heiner says that the Department is incorrect in its interpretation of section 17. He made a statutory declaration dated 29 July 2011, which says that he married Martha Morony on 12 November 1994. He said that she wished to register the marriage with Irish authorities, and did so in 1999. In his statutory declaration he said, paragraph 3:
I did not apply for Irish citizenship. I understood that by signing a form relating to the form signed by Martha, I was entitled to accept Irish citizenship as “post-nuptial” citizenship.
And in paragraph 4, he said:
My sole and dominant purpose in signing that form was to have our marriage registered with Irish authorities, and while I accepted by signing the form the Irish citizenship bestowed upon me by virtue of my marriage, I did not understand, and did not intend to independently apply for Irish citizenship.
He made a submission to the Tribunal, that was on 30 November 2011. He said that in 1999 his ex-wife, Martha, lodged with the Irish Embassy in Canberra a form entitled “Affidavit by Irish citizen who is a spouse of an alien seeking post-nuptial citizenship”. He said, and he uses the third person here:
Mr Heiner did not make that declaration or sign that form.
He then says in 1999 Mr Heiner lodged with the Irish Embassy in Canberra a form titled “Form 6 declaring acceptance of Irish citizenship of post-nuptial citizenship”, and he said:
Mr Heiner’s only act here was to accept Irish citizenship as post-nuptial citizenship. No application was made.
He then went on to say that he and Mr Moroney finalised their divorce in 2010, and goes on to talk about the application for citizenship for his daughter by descent. He told the Tribunal that he agreed to his former wife, Mr Moroney, registering the marriage because she wished to do so, and he said that he understood that the purpose of his ex-wife lodging the declaration was to register the marriage without purpose or motive for acquisition of Irish citizenship. During evidence he told the Tribunal that he had lived in Ireland for a time with his former wife, and that he held an Irish passport and sometimes travelled on it, and from documents provided by Mr Heiner, it’s clear that he has worked in many places around the world and he has used the Irish passport on some occasions, and that Irish passport, of course, enables travel within the European union. The Irish Naturalisation and Immigration Service, in a document dated 27 June 2011, confirms the acquisition of Irish citizenship by Mr Heiner. It says:
To whom it may concern. This is to state that Philip John Heiner [giving his birth date] lodged a declaration under section 8 of the Irish Nationality and Citizenship Act 1956 as substituted by section 3 of the Irish Nationality and Citizenship 1986 on 30 September 1999 accepting Irish citizenship as his post-nuptial citizenship. He became an Irish citizen on that date.
So there is no dispute that Mr Heiner became an Irish citizen on 30 September 1999 following the registration of the marriage and the lodging of the relevant documents. I note that in the second reading speech in relation to the Australian Citizenship Bill 2005 on 9 November 2005 by Mr John Cobb MP, who was then Minister for Citizenship and Multicultural Affairs, in introducing the opportunity for all Australian citizens to seek restoration of their citizenship by conferral, the Minister said:
Section 17 provided that adult Australians who did any act or thing the sole or dominant purpose of which and the effect of which is to acquire the nationality or the citizenship of a foreign country shall, upon that acquisition, cease to be an Australian citizen.
And he goes on to say the provision worked by operation of law and took effect as soon as the Australian acquired the new citizenship. No application was necessary, and no decision was involved. And then he referred to the situation where the person’s status might be changed without their knowledge until that person tried to renew their Australian passport, and that provision has since been made to change the law for people to apply for citizenship by conferral. Now, the Minister’s delegate has argued that section 17 applies to Mr Heiner because it says that, as far as subsection 17(1) is concerned, Mr Heiner did satisfy subsection (1) of section 17 because the sole or dominant purpose of the thing or act that he did was to acquire the nationality of a foreign country.
Mr Heiner said that that is not the case. He said that his dominant purpose was not to acquire citizenship, and he has referred on a number of occasions to not making any application for citizenship of Ireland. In evidence before the Tribunal in February 2012, when he was asked by Member Perton, “Why did you sign the declaration and satisfy the documentary requirements by registering the marriage and thereby acquiring citizenship of Ireland?”, Mr Heiner at one stage replied:
I can’t recall why I signed the declaration in 1999. We had already filed for divorce.
He stated further, when asked again:
I struggle to recall
And why he decided to put the declaration to the Irish Embassy in Australia:
because it’s a long time ago
He then stated:
I can’t think I would be bothered whatsoever to register an Australian marriage with Irish authorities. I cannot honestly say I remember why something was done.
And then a little later during the hearing he said:
All I can say, it was more than likely my dominant purpose to sign that form was to try and keep Martha happy.
Martha being his former wife. So what Mr Heiner is saying is it was a long time ago. He can’t remember why he signed the registration and the declaration, and he said he certainly didn’t apply for Irish citizenship, therefore, he said he didn’t do any act or thing the sole or dominant purpose of which, and the effect of which, was to acquire Irish nationality. Mr Heiner, at the hearing and in documents, said a decision by Davies J in Minister for Immigration, Local Government and Ethnic Affairs & Gugerli (1992) 36 FCR 68 supported his position that he did nothing more than accept post-nuptial Irish citizenship, and made no application for it.
I accept the contention that was made by Mr McDermott on behalf of the delegate that that decision stands for the proposition that if a person’s sole or dominant purpose in doing an act is to acquire the citizenship of a foreign country, the motive for doing so is irrelevant to the operation of section 17 of the 1948 Act, and that the circumstances in the Gugerli case were different because Ms Gugerli wanted to obtain recognition of citizenship - I think it was Switzerland – that she already had, whereas in this case Mr Heiner, by doing positive things, became an Irish citizen. I find that the evidence of Mr Heiner given that he can’t remember; he doesn’t recall, to be less than convincing. Mr Heiner is obviously a person who is meticulous in preparing documentation. He is meticulous in the amount of detail that he provided in his documents related to events that occurred some time ago, and I note there is a contradiction in his evidence that he says he signed the form more than likely to keep Martha happy, when he had said previously that he and she had already filed for divorce.
I don’t find his explanation that he can’t remember or can’t recall to be at all convincing. He admitted that obtaining Irish citizenship would enable him to travel within the European union, although he did say that he travels all over the world for work and that he didn’t really need Irish citizenship to pursue his employment interest. In relation to section 17 of the Act, I note that a decision of the Tribunal in Eddison and Minister for Immigration & Multicultural Affairs 2001 AATA 533, Senior Member Kiosoglous MBE stated at paragraph 17:
At the core of this matter is whether or not the applicant’s mother committed an act beside from becoming married the sole and 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 the marriage constituted acts independent of that marriage so as to satisfy section 17, subsection (1) and not attracting the exemption offered by subsection (2).
In relation to subsection (1) of section 17, on all the material before me, and using the balance of probabilities, it’s my conclusion that although Mr Heiner did not apply necessarily for nationality of Ireland or citizenship of Ireland, what he did in completing the registration and the declaration and presenting that to the Irish Embassy in 1999, there is no other conclusion that I can draw other than that is he knew he would be acquiring the nationality or citizenship or Ireland, and in completing those forms, that is why he did it.
So I therefore find pursuant to section 17, subsection (1) of the Australian Citizenship Act 1948 that the applicant’s father did an act ... (a) the sole or dominant purpose of which and (b) the effect of which was to acquire the nationality or citizenship of a foreign country and upon that acquisition ceased to become an Australian citizen. Now, of course, section 17 subsection (2) is an exemption to subsection (1). Mr Heiner has made numerous submissions to the effect that subsection (1) should not apply because it was in relation to an act of marriage.
The Minister’s delegate said that the declaration in 1999 was made five years after the marriage and that citizenship was therefore acquired independently of any act of marriage. Mr McDermott said that there was nothing before the Tribunal to show that there was a requirement for Mr Heiner, as opposed to Ms Moroney, to register the marriage with the Irish authorities and that Mr Heiner did not merely allow the marriage to registered, he made a declaration and submitted that to the authorities in accordance with the legislation of the time to have the Irish citizenship bestowed upon him. In other words, Mr Heiner was not required or compelled to make the declaration. He was not required or compelled to take up Irish citizenship.
I note that in Eddison at paragraph 24, the Tribunal states:
In this case the applicant’s mother clearly performed acts above and beyond the act of marriage for the purposes of retaining 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 ..... 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.
I agree with the submissions made by Mr McDermott as I have already referred in as much as Mr Heiner signed the declaration on 30 September 1999 in a manner that was unrelated – in the sense that it was an independent action unrelated to the act of marriage which took place nearly five years previously on 12 November 1994. In my view and I follow the reasoning set out in the matter of Eddison, that it is my view that Mr Heiner acquired citizenship independently of the act of marriage which would attract the exemption under section 17 subsection (2), and I reiterate that he did not have to register the marriage with the authorities and he made a valid declaration which he was not required to do, and that was in accordance with the Irish legislation. Neither Australian nor Irish law required him to insure the validity of the marriage that was then in existence.
For those reasons I disagree with Mr Heiner’s view of section 17 subsection (2) and I find that subsection (2) does not apply in this case because the actions by the applicant’s father in respect of subsection (1) were not in relation to an act of marriage. As a result of my findings, I find that at the time of the applicant’s birth, Mr Heiner was not an Australian citizen. There is no dispute that the applicant’s mother is not an Australian citizen. Therefore I find that at the time of the applicant’s birth, neither of the applicant’s parents was an Australian citizen, therefore the applicant cannot satisfy section 16 subsection (2) of the Australian Citizenship Act 2007 and is not eligible for citizenship by descent and I affirm the decision under review.
I certify that the preceding 33 (thirty -three) paragraphs are a true copy of the reasons for the decision herein of ..............................[sgd].........................................
Associate
Dated 8 January 2013
Date of hearing 5 December 2012 Date of written reasons 8 January 2013 Advocate for the Applicant Ms Kirwan Advocate for the Respondent Christopher McDermott Solicitors for the Respondent Australian Government Solicitor
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