Grace Heiner and Minister for Immigration and Citizenship
[2012] AATA 236
•26 April 2012
[2012] AATA 236
Division GENERAL ADMINISTRATIVE DIVISION File Number
2011/3448
Re
Grace Heiner
APPLICANT
And
Minister for Immigration and Citizenship
RESPONDENT
DECISION
Tribunal Regina Perton, Member
Date 26 April 2012 Place Melbourne The Tribunal affirms the decision under review.
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Regina Perton
Catchwords
CITIZENSHIP – application by minor for citizenship by descent – father born in Australia – Irish citizenship acquisition as a result of marriage to Irish citizen – resultant loss of Australian citizenship – applicant not eligible
Legislation
Australian Citizenship Act 1948 s 17
Australian Citizenship Act 2007 ss 4(2), 16(2), 17(1A), 21(6), 29(3)
Irish Nationality and Citizenship Act 1956
Irish Nationality and Citizenship Act 1986 s 8
Cases
Minister for Immigration, Local Government & Ethnic Affairs v Gugerli (1992) 36 FCR 68
Secondary Materials
Kim Rubenstein, Australian Citizenship Law in Context (1st ed, Lawbook Co, 2002)
Australian Citizenship Bill 2005, Commonwealth, Parliamentary Debates, House of Representatives, 9 November 2005, 9-12 (John Cobb MP, Minister For
Citizenship and Multicultural Affairs)
REASONS FOR DECISION
Regina Perton
26 April 2012
Grace Heiner was born on 11 March 2011 in Spain. On 11 April 2011 Grace’s father, Philip Heiner, lodged an application for Australian citizenship by descent on her behalf. On 29 July 2011 a delegate of the Minister for Immigration and Citizenship (the Minister) refused Grace’s application on the basis that neither of her parents was an Australian citizen at the time of her birth.
Grace’s mother is a citizen of the United Kingdom. Mr Heiner believes he is, and always has been, an Australian citizen. In response to prompt questions on the application form, Mr Heiner stated that along with his Australian citizenship, which was acquired by birth, he held Irish citizenship. Mr Heiner acquired his Irish citizenship through marriage to his former wife, an Irish citizen. The delegate determined that Mr Heiner had lost his Australian citizenship when he became an Irish citizen in 1999 as a result of Irish and Australian legislative provisions that existed at that time. Mr Heiner had not regained his Australian citizenship since its loss. Therefore, the delegate determined that Grace was not entitled to Australian citizenship by descent as her father.
On 26 August 2011 Mr Heiner lodged an application on Grace’s behalf with this Tribunal. Mr Heiner is shocked and angry about the situation. He does not believe that he can have lost his Australian citizenship, particularly as he holds an Australian passport which was renewed in early 2011 with an expiry date of 2021. He is challenging the interpretation of the relevant legislation. The Minister’s representative maintains that the delegate made the correct decision.
The issue before the Tribunal is whether Grace’s father was an Australian citizen at the time of her birth, and therefore, whether Grace is eligible for Australian citizenship by descent.
RELEVANT LEGISLATION
Section 16(2) of the Australian Citizenship Act 2007 (the Act) sets out the criteria for the grant of citizenship by descent:
(2) A person born outside Australia on or after 26 January 1949 is eligible to become an Australian citizen if:
(a) a parent of the person was an Australian citizen at the time of the birth; and
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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 s 16(2) or (3) (s 16(3) is not relevant here).
Section 4(2) of the Act gives guidance in determining whether a person was an Australian citizen when the Act commenced. The provisions of the previous legislation, the Australian Citizenship Act 1948 (the 1948 Act), are to be taken into account. Section 17 of the 1948 Act sets out the circumstances in which a person lost Australian citizenship on 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 relevant Irish legislation under which Mr Heiner obtained Irish citizenship is the Irish Nationality and Citizenship Act 1956 (Ireland) (the Irish 1956 Act), as amended by the Irish Nationality and Citizenship Act 1986 (Ireland) (the Irish 1986 Act). Section 8 of the Irish 1986 Act at the relevant time stated:
8(1) A person who is an alien at the date 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 3 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 is being lodged.
(2) A person who lodges a declaration under subsection (1) shall be an Irish citizen from the date of lodgement.
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WAS GRACE’S FATHER AN AUSTRALIAN CITIZEN AT THE TIME OF HER BIRTH?
Mr Heiner believes that s 17 of the 1948 Act should not be interpreted in the manner in which it was by the Minister’s delegate or contended by the Minister’s representative before this Tribunal. He submits that s 17(2) is the relevant provision for the Tribunal to take into account, in that his acceptance of Irish citizenship took place in the context of the registration of his marriage under Irish law.
In a statutory declaration dated 29 July 2011, Mr Heiner indicated that he married Martha Moroney in Melbourne on 12 November 1994. He stated that she wished to register the marriage with Irish authorities and did so in 1999. He then stated:
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3. I did not apply for Irish citizenship. I understood that by signing a form related to the form signed by Martha, I was entitled to accept Irish citizenship as “post nuptial” citizenship.
4. 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.
In a submission to the Tribunal dated 30 November 2011, Mr Heiner stated:
1.2.2 Forms and Events
1. In 1999, Mr Heiner’s ex-wife Martha lodged with the Irish Embassy in Canberra a form titled: Affidavit by Irish citizen who is the spouse of an alien seeking post-nuptial citizenship. The form declares their marriage of more than three years prior and “…further affirm , declare and swear that we are living together as husband and wife, that our marriage is subsisting; and that no proceedings for divorce or annulment of this marriage have been commenced in any court…”
Mr Heiner did not make that declaration or sign that form.
2. In 1999, Mr Heiner lodged with the Irish Embassy in Canberra a form titled: Form 6, Declaring acceptance of Irish Citizenship as post nuptial citizenship. The form references the affidavit noted above.
Mr Heiner’s only act here was to accept Irish Citizenship as post nuptial citizenship. No application was made.
3. Phillip & Martha finalized divorce in 2010.
4. On 31st March 2011, application was made for Australian Citizenship by descent for Grace. Staff at the Australian Embassy in Madrid informed Mr Heiner that holding other citizenship would have no consequence on processing the application. On that basis, Mr Heiner entered an approximate date Irish citizenship was acquired. The year “1995” was entered, without day or month. The actual date subsequently found was 30th September 1999.
5. On 19th April 2011, DIAC informed Mr Heiner of its opinion Australian Citizenship may have been lost as a consequence of receiving Irish Citizenship and requested details of the Irish citizenship to verify.
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9. Mr Heiner’s commitment to Australia as home is uninterrupted since birth.
(a) His family lives in Australia and has for five generations.
(b) He owns property and bank accounts in Australia.
(c) He pays tax to Australia.
(d) He has no home permanent address other than Australia.
(e) His career requires travel, living and working abroad though he has always intended to return to Australia.
Mr Heiner’s written and oral evidence was that he had agreed to his ex-wife registering their marriage because she wished to do so. He stated 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.
Mr Heiner told the Tribunal that he had lived in Ireland for a time with his ex-wife. He also stated that he held an Irish passport on which he had sometimes travelled.
A document prepared by the Irish Naturalisation and Immigration Service dated 27 June 2011 corroborates Mr Heiner’s acquisition of Irish citizenship:
TO WHOM IT MAY CONCERN
This is to state that Philip John Heiner born on 24 September 1959 in Australia 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 Act, 1986, on 30 September 1999 accepting Irish citizenship as his post-nuptial citizenship. He became an Irish citizen on that date.
Section 17 of the 1948 Act was repealed in 2002. In her book Australian Citizenship Law in Context, published in 2002, Professor Kim Rubenstein, an expert in citizenship law, commented (at pages 137 to 144):
Since the inception of the Australian Citizenship Act 1948 (Cth) until 4 April 2002, there had been a provision mandating loss of Australian citizenship for a person who acquired a new citizenship...
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With the repeal of s 17, adult Australian citizens acquiring the nationality or citizenship of another country will not lose their Australian citizenship from 4 April 2002. However, this will not benefit those Australian citizens who lost their Australian citizenship before the amendment Act received Royal Assent.
Documents provided to the Tribunal by the Minister indicate that Professor Rubenstein provided a letter of support for Mr Heiner in relation to Grace’s application. In correspondence dated 29 July 2012 [sic], Professor Rubenstein stated that a case could be made that Mr Heiner did not apply for Irish citizenship but that it was bestowed upon him as “post-nuptial citizenship”. She stated that [t]he wording on the official Irish form of “acceptance’ rather than application is very important in this matter.
Professor Rubenstein finished her submission on behalf of Grace and her father as follows:
While the Department has explained that it will be straightforward for Mr Heiner to re-apply for Australian citizenship (and for his daughter to apply for citizenship as a child of someone who lost citizenship) due to the provisions under the 2007 Act, the period between 1999 and today leaves Mr Heiner, open, in his view to difficulties regarding the countries in which he regularly travels for his professional life, if it is finally determined that he lost his Australian citizenship during that period.
For this reason, if the Minister does not accept Mr Heiner’s statutory declaration to satisfy him that Mr Heiner did not apply for Irish citizenship and that he accepted it solely to enable his wife to register their marriage with Irish authorities, Mr Heiner is aware of his AAT review rights (regarding his daughter’s application) and further the capacity to review the legality of the decision in the Federal Court of Australia.
In that scenario, I am of the view that the Department’s interpretation of s 17 regarding marriage is arguably unlawful because:
1. as a matter of statutory interpretation, the wording, read literally, does not limit in relation to an act of marriage to “automatically” – ie it could include a future act related to marriage
2. that citizenship is such a fundamental legal status, that you can not have it taken away without due process (drawing upon administrative law principles) and
3. as I write in the book on page 141 – there is constitutional argument that s 17 was never constitutionally valid
In 2005, the Australian Government put forward fresh citizenship legislation. The Second Reading Speech in relation to the Australian Citizenship Bill 2005 was given on 9 November 2005 by the then Minister for Citizenship and Multicultural Affairs, John Cobb MP. In introducing the opportunity for former Australian citizens to seek restoration of their citizenship by conferral, in circumstances such as that faced by Mr Heiner, the Minister stated:
…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 citizenship of a foreign country, shall, upon that acquisition, cease to be an Australian citizen’. The provision worked by operation of law and took effect as soon as an Australian acquired the new citizenship. No application was necessary and no decision was involved.
Not surprisingly, many Australians – both in Australia and overseas – did not know about this provision. They took advantage of opportunities to become a citizen of the United Kingdom or the United States, for example, to make travel and/or work overseas easier. Many also continued to identify themselves as Australians and even travel on their Australian passports, completely unaware that they were no longer entitled to its protection. The government was also unaware of the change in their status – until, that is, the person tried to renew their Australian passport or register a child as an Australian citizen.
Children born after their Australian parent or parents lost their citizenship are not eligible for registration of citizenship by descent. They do not meet the essential requirement for an Australian citizen parent at the time of their birth. Provision has been made for these people to apply for citizenship by conferral….
The Minister’s representative, Mr McDermott, argued that Mr Heiner’s reliance on s 17(2) of the 1948 Act as excluding him from the automatic loss of citizenship under s 17(1) is misconceived. He contends that it is open to the Tribunal, on the material before it, to make a finding that Mr Heiner’s actions in signing a declaration on 30 September 1999 was an independent action unrelated to the marriage which took place on 12 November 1994. He pointed out the declaration was made five years after the marriage and suggested that Mr Heiner acquired citizenship independently of any act of marriage. He submitted that there is no evidence before the Tribunal that there was a requirement for Mr Heiner, as opposed to Ms Moroney, to register the marriage with the Irish authorities. Furthermore, he submitted that Mr Heiner did more than just allow the marriage to be registered. Mr Heiner made a declaration in accordance with Irish law to have a grant of Irish citizenship bestowed upon him. Mr McDermott pointed out that Mr Heiner was not compelled to make the declaration that he did nor did he have to take up Irish citizenship.
Mr Heiner cited a decision by Davies J in Minister for Immigration, Local Government & Ethnic Affairsv Gugerli (1992) 36 FCR 68 as supporting his position that he did no more than accept post-nuptial Irish citizenship and did not make an application for it. Mr McDermott contended that the Gugerli 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 s 17 of the 1948 Act. The circumstances in the Gugerli case were somewhat different to the circumstances in this matter. Mrs Gugerli sought to obtain recognition of citizenship she believed she already had. Mr McDermott pointed out that unlike Mrs Gugerli, Mr Heiner made a positive election to become an Irish citizen.
The Tribunal agrees with the submission put by the Minister’s representative, that by deciding to take up the offer of citizenship by completing the relevant form, Mr Heiner took action which would give him Irish citizenship. He did not have to do so but willingly chose to do so. The Tribunal also agrees that Mr Heiner took the positive step of making a declaration that would grant him citizenship. It was not the marriage itself that bestowed citizenship on Mr Heiner but his acceptance by completing the form accepting citizenship after his wife’s affidavit was accepted. He later lived in Ireland for a time and also used an Irish passport from time to time.
Mr Heiner falls within the group which Mr Cobb described in his second reading speech, namely Australian citizens who unknowingly lost their citizenship due to the wording of s 17 of the 1948 Act as it was in 1999 and until 2002.
The Tribunal holds Professor Rubenstein in high esteem and accepts that it is arguable that the repealed s 17 of the 1948 Act was unconstitutional but it is not within the Tribunal’s power to determine such a matter. Nor does s 17(2) appear to have been tested in the courts for a person in Mr Heiner’s situation. The circumstances in Gugerli were different to those in Mr Heiner’s case.
The Tribunal finds that at the time of Grace’s birth, Mr Heiner was not an Australian citizen. The Tribunal accepts Mr Heiner’s statements that Grace’s mother is a citizen of the United Kingdom. Therefore, neither of Grace’s parents were Australian citizens at the time of her birth. She fails to meet s 16(2) of the Act and hence is not eligible to citizenship by descent.
Grace’s is entitled to be granted Australian citizenship by conferral under s 21(6) of the Act:
(6) A person is eligible to become an Australian citizen if the Minister is satisfied that the person:
(a) the person was born outside Australia; and
(b) a parent of the person was not an Australian citizen at the time of the person’s birth; and
(c) the person had ceased to be an Australian citizen under section 17 of the old Act (about dual citizenship) before that time; and
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Similarly, her father is entitled to resume his citizenship via s 29(3) of the Act which specifically cites its applicability to those former citizens who lost it due to the provisions of s 17 of the 1948 Act.
DECISION
The Tribunal affirms the decision under review.
I certify that the preceding 27 (twenty seven) paragraphs are a true copy of the reasons for the decision herein of Regina Perton.
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Associate
Dated 26 April 2012
Date(s) of hearing 20 February 2012 Applicant In person (via telephone) Counsel for the Respondent Mr C McDermott Solicitors for the Respondent Australian Government Solicitor
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