Ibrahim and Minister for Immigration and Multicultural and Indige Nous Affairs

[2003] AATA 154

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2003] AATA 154

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No W2001/30

GENERAL ADMINISTRATIVE  DIVISION		)
Re		TAMER MOSTAFA IBRAHIM

Applicant

And MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

Respondent

DECISION

Tribunal The Hon C R Wright QC., (Deputy President)

Date14 February 2003

PlacePerth

Decision The decision under review is affirmed.

[Sgd The Hon C R Wright QC]

Deputy President

CATCHWORDS

Citizenship - responsible parent remaining Australian citizen - 20 year old son applying for resumption of citizenship - disentitled to restoration of citizenship by reason of delay - whether "special circumstances" shown justifying extension of time in which to file relevant declaration.

Australian Citizenship Act 1948 - ss.18, 23 and 23B

REASONS FOR DECISION

14 February 2003 The Hon C R Wright QC., (Deputy President)  

The Application

1. The applicant seeks to review a decision made by the Minister’s delegate in Cairo, Egypt on 5 November 2000, refusing the applicant’s attempt to resume Australian citizenship pursuant to s23B of the Australian Citizenship Act 1948 (“the Act”).

The Facts

2.      The applicant’s father migrated to Australia from Egypt in July 1970 and became an Australian citizen on 28 August 1973.

3.      In August 1976 the applicant’s father returned to Egypt and was married.    The applicant’s father remained in Egypt for a period of 3 years and returned to Australia with his wife in February 1980.

4.      The applicant, a male, was born in Canberra, Australia on 28 June 1980.

5.      The applicant’s father signed a Declaration of Renunciation of Australian Citizenship on 25 September 1980 and subsequently returned to Egypt with his wife and the applicant.

6.      The applicant wrote to the Minister for Immigration on 11 July 2000 requesting a resumption of his Australian citizenship.   On 24 August 2000 the Department responded to the applicant’s letter informing him that:

“Departmental records show that in September 1980, your father chose to renounce his Australian citizenship in order for your family to be repatriated to Egypt.   Under the legislation in force at that time, a child lost their [sic] Australian citizenship if a responsible parent of the child renounced their [sic] Australian citizenship, unless the child did not possess another citizenship.

As you possessed Egyptian citizenship in addition to your Australian citizenship, you would have lost your Australian citizenship when your father renounced his Australian citizenship.”

7.      The applicant officially applied for resumption of his Australian citizenship on 22 August 2000 by completing the pro forma “Declaration of desire to resume Australian citizenship under s23AA, 23A or 23B” (Form 132).

The Legislation

8. Section 18 of the Act provides that an Australian citizen may effectively renounce his or her citizenship by lodging a declaration of renunciation with the Minister on a prescribed form. Subject to presently inapplicable exceptions the Minister must register the declaration and “thereupon the person making the declaration shall cease to be an Australian Citizen.”

9. Section 23 of the Act provides that where a responsible parent of a child ceases to be an Australian citizen any such child who has not attained 18 years of age also ceases to be an Australian citizen, provided that the child becomes a “national or citizen of a foreign country immediately after the time when the responsible parent ceases to be an Australian citizen.” The applicant ceased to be an Australian citizen pursuant to this provision as his father and he both became Egyptian citizens immediately upon his father’s renunciation of his Australian citizenship.

10. Section 23B of the Act is in the following terms:

“23B Persons may resume citizenship lost under section 23

1) A person who, under section 23, has ceased or ceases to be an Australian citizen may, within one year after attaining the age of 18 years or within such further period as the Minister, in special circumstances, allows, make and furnish to the Secretary or to a person authorized by the Secretary by instrument in writing for the purposes of this section a declaration in accordance with the prescribed form that the person wishes to resume Australian citizenship.

(1A) To avoid doubt, the reference in subsection (1) to section 23 includes a reference to section 23 as in force at any time before the repeal of section 17 by the Australian Citizenship Legislation Amendment Act 2002.

(2) If:

(a)       a person makes a declaration under subsection (1); and

(b)      the Minister is satisfied that the person is of good character;

the person to whom the declaration is given must register the declaration in the prescribed manner and, on the registration of the declaration, the person making the declaration again becomes an Australian citizen.”

11. When completing Form 132 (see pages 21 to 23 of section 37 documents) the applicant did not provide many details of matters which might be regarded as “special circumstances” within the meaning of s23B(1), but this is scarcely surprising as the pro forma document makes no real provision for the inclusion of such material. It should also be noted that s23B(1) does not require that the Minister be approached to allow a declaration beyond the 18 years plus one year period specified, before the declaration itself is actually lodged. An applicant who is over 19 years of age is therefore at something of a disadvantage when it comes to his or her appreciating how and when “special circumstances” material to the exercise of the Ministerial discretion should be lodged.

12.     Fortunately, in the present case the applicant was in fact made aware of the necessity to draw attention to special circumstances by the contents of a letter sent to him by Mr Peter Hughes of the Multicultural Affairs and Citizenship Division of the Department on 24 August 2000.    Mr Hughes correctly pointed out that the applicant’s declaration should “include reasons why the declaration was not lodged earlier”.

13.     I have mentioned this letter for two reasons.   First to show that before refusal of his application, the applicant was made aware of the necessity to explain special circumstances attending his case if he wished to be successful in his application to resume citizenship and was given the opportunity to do so and, second, to draw attention to the issues in respect of which the “special circumstances” are relevant.

14.     In many areas of the law, for example when leave is sought to sue for damages for negligence beyond the time allowed by a statute of limitations, it is necessary for a person seeking a discretionary extension of time to (a) explain  his delay and (b) to show that, if permitted to proceed, his cause of action has good prospects of success.

15. Section 23B does not limit the special circumstances which an applicant for the Minister’s indulgence must expose, but I doubt very much that such an applicant must provide an acceptable explanation as to why he wishes to resume his citizenship or what his intentions are about taking up or continuing permanent residency in this country. I say this because s23B(2) clearly contemplates that, subject only to satisfying the Minister of his good character, registration of a declaration lodged in accordance with the Act must take place and, thereupon, ipso facto, the applicant becomes an Australian citizen again.

16.     It therefore seems to me that some of the matters raised during the present hearing and adverted to in the Australian Citizenship Instructions referred to by Ms McPherson are of little, if any, relevance to the success or failure of a “special circumstances” application to the Minister.

17. To put it another way, a person who has ceased to be an Australian citizen under s23 may successfully reapply for citizenship, as of right, up to the age of 19 years. Provided he satisfies the Minister that he is a person of good character he is entitled to a renewal of Australian citizenship under s23B.

18.     If he leaves his application until he is older than 19 he may be allowed to lodge a valid declaration.   Once he has done so, his rights are the same as an applicant who is under 19, i.e. subject to the good character test he becomes entitled to Australian citizenship.    The “special circumstances” requirement therefore appears to me to be governed principally by factors pertaining to the delay occurring beyond the applicant’s 19 birthday rather than to matters which would have been irrelevant, had his declaration been lodged before that anniversary.   Obviously if there were any issues as to the applicant’s good character these also would be relevant, but no such questions have been raised in the present case.  I am therefore not in agreement with the approach which was taken in Catanzaro v Department of Immigration, Local Government and Ethnic Affairs (1994) 21 AAT No. 9596.

Consideration

19.     The applicant was a baby about 6 months old when he left Australia and lost his Australian citizenship.

20.     He gave evidence, which was supported by his mother and which I accept generally that he has lived and been educated in Egypt since that time.   He has not been back to Australia not has he travelled to other countries or places.   He is unmarried.

21.     He and his mother live together with his four siblings (2 boys and 2 girls) in Egypt.   He is the eldest child of the marriage and is now aged 23 years.   His brothers and sisters range in age from 21 to 9 years.   His father died of liver disease on 11 January 2000.   Mr Ibrahim (Senior) had been unwell with this ailment about 6 years before his death, but had continued in his employment in a managerial position of a private workshop business until about 3 months before his death.   During the last 3 months of his life, Mr Ibrahim resided at his home with the family and was taken to hospital for treatment from time to time by the applicant and his mother.

22. While his father was alive the applicant was ignorant of the provisions of the Australian Citizenship Act and from the age of about 10 or 11, was led by his father to believe that when he, the applicant, had finished his education, the family would all return to live in Australia which his father described to the children in glowing terms. He never explained to his son that he had renounced his Australian citizenship nor did he discuss the prospect that there may be impediments and difficulties if he attempted to fulfil these promises to return to Australia. The applicant says that he had no reason to suspect that he may have to take action himself within a limited time if he wished to preserve his own Australian citizenship rights.

23.     At the time of his father’s death the applicant was aged 20 years old.   The applicant said that for two years at least before this he “couldn’t think of any other things” than his father’s predicament “it was very hard and very stressful”.   He said he was unable to concentrate sufficiently so as to pass exams for his high school certificate.   However he commenced study in 1996 in a hospitality college and graduated from there in 2000.    It is plain enough that although the applicant was the eldest son of the family and accepted his role seriously, his father was not totally physically disabled until the final 3 months of his life and, in any event, the applicant’s mother was not in employment and was fulfilling a traditional role of wife and mother in the home and was available to give substantial help in the care of her husband.   The applicant was not filling the role of full-time carer of his father as I understand the evidence.

24.     The applicant is not employed.    His mother said her (and by that I infer she means the family’s) income is derived from a small wheat grinding business, but she says “I am not making enough money”.   The applicant says he wishes to return to Australia to make enough money to help support the family.   He has limited skills, but he says “I can do anything I have to do”.   He is not fluent in English, but can speak a little.   His evidence was given with the aid of an interpreter.

25.     When cross-examined he said that he intended to remain in Australia, but volunteered that if he should marry an Egyptian lady he may decide to return to Egypt to live.    He conceded he has strong ties to Egypt and has no friends or business associates in Australia.   As I have already indicated I consider these matters to be of little, if any relevance to the present review.

Conclusion

26.     The question is “Has the applicant shown special circumstances which should permit his declaration of 22 August 2000 to be validated “nunc pro tunc”?  Merely to explain the reasons why the declaration was not lodged before his 19^th birthday does not establish special circumstances.    The provisions of the legislation acknowledge that prompt action is required of immature young men or women if they are to recover lost citizenship.   A year after reaching one’s majority (assuming 18 years of age can be so regarded) is not a very long time within which to act.   The applicant’s age and relative inexperience can hardly be regarded as a special circumstance.

27.     Nor can his ignorance of Australian law be so regarded.   It is however possible to infer that his father’s promises to return to Australia with the family when he had no right to do so, may have lulled the applicant into a false sense of security as to his future entitlement to resume residency in this country.    If his discharge of filial duties to his ailing father had diverted him from actions which he may otherwise have taken to advance or safeguard his position it may be possible to regard the family situation as constituting a special circumstance.   However I find it impossible to reach such a conclusion.   I think that if his father had not died the applicant on the basis of his father’s assurances may still be expecting to return to Australia with the family.

28.     In my opinion, although the term “special circumstances” provides a potentially broad spectrum of facts, matters and events to be taken into account, it must be recognised that such factors must be “special” i.e. they must be more than commonplace or run-of-the-mill.   In my opinion, except for the long term misleading conduct of the applicant’s father, there was nothing of an unusual nature in the applicant’s situation.   Sympathy for his loss of a valuable citizenship entitlement cannot fill the void if special circumstances are not demonstrated.

29.     It was fairly conceded by Ms McPherson that there had been no lengthy or inordinate delay between the applicant’s attainment of 19 years and his lodgment of the application, but again,  this is not a special circumstance.   It is a factor militating in favour of the exercise of the relevant discretion if special circumstances have been shown, but it is not a special circumstance itself.

30.     I recognise that the applicant and his mother will be keenly disappointed by the outcome, but I have been unable to conclude that special circumstances of sufficient cogency have been demonstrated to exercise the statutory discretion in the applicant’s favour.   Accordingly, the decision under review is affirmed.   It should be noted that the applicant may apply for a visitor’s visa and may subsequently achieve permanent residency if he meets all relevant criteria.

I certify that the 30 preceding paragraphs are a true copy of the reasons for the decision herein of The Hon C R Wright QC., (Deputy President)

Signed:    K L Miller (        Administrative Assistant)

Date/s of Hearing   5 February 2003
Date of Decision  14 February 2003

Counsel for the Applicant         The applicant was unrepresented and took part in the proceedings by telephone hook-up.

Counsel for the Respondent     Ms L McPherson
Solicitor for the Respondent     Australian Government Solicitor