Khoo and Minister for Immigration and Multicultural Affairs

[2006] AATA 509

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2006] AATA 509

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No W2005/85

GENERAL ADMINISTRATIVE  DIVISION		)
Re		ERNEST KENG KHOO

Applicant

And MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

Respondent

DECISION

Tribunal Mr A Sweidan, Senior Member

Date12  June 2006

PlacePerth

Decision   The decision under review is affirmed

..........[Sgd. Mr A Sweidan]........................

Senior Member

CATCHWORDS: Citizenship: Application to resume Australian citizenship which was renounced not to acquire but to retain Singapore citizenship.

Held s23AA Australian Citizenship Act 1948 not applicable.

CASES

Desira v Minister for Immigration and Multicultural Affairs (2000) AATA 32; Cho v Minister for Immigration and Multicultural Affairs (2002) AATA  238; Borg v Minister for Immigration and Multicultural Affairs (2004) AATA 812.

REASONS FOR DECISION

12 June 2006 Mr A Sweidan, Senior Member    

1. This is an application to the Administrative Appeals Tribunal (the Tribunal) for review of a decision of a delegate of the Minister of 20 October 2004 not to register a declaration of desire to resume Australian citizenship pursuant to s 23AA of the Australian Citizenship Act (the Act).

2.      The matter was heard on 5 April 2006.  The applicant attended by telephone from Singapore.  The respondent was represented by Mr A Gerrard, Australian Government Solicitor.

3.      The facts and legislation are set out in the respondent’s Statement of Facts and Contentions as follows:

PART I     FACTS

1.…

2.The applicant was born in Singapore on 19 August 1953 and arrived in Australia in 1976 as a student.

3.He was subsequently granted Australian citizenship on 19 January 1981.

4.In 1996 the applicant returned to Singapore citing “family reasons”. He says that in order to live and work in Singapore the Singaporean Government required him to renounce his Australian citizenship.

5.The applicant’s declaration of renunciation was registered on 13 February 1996.

6.On 30 August 2004 the applicant submitted a declaration of desire to resume Australian citizenship.

7.On 20 October 2004, a delegate refused to register the declaration.

PART IILEGISLATION

8.Section 23AA of the Act relevantly provides:

(1) Where:

(a) a person:

(i) has done a voluntary and formal act, other than marriage, by virtue of which the person acquired the nationality or citizenship of a country other than Australia; or

(ii) has done any act or thing:

(A) the sole or dominant purpose of which; and

(B) the effect of which;

was or is to acquire the nationality or citizenship of a foreign country;

being an act or thing that resulted in the person ceasing to be an Australian citizen;

(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

(c)the person furnishes to the Minister together with the statement a declaration in the prescribed form that the person wishes to resume Australian citizenship;

the Minister may, in the Minister’s discretion, if the Minister is satisfied:

(d)as to the truth of the matters contained in the statement; and

(e)in a case where the person has claimed that, if the person had not done the act or thing that resulted in the person ceasing to be an Australian citizen, the person would have suffered hardship or detriment of an economic nature - that the person’s circumstances were such as to compel the person to do that act or thing; and

(f)that the person is of good character;

register the declaration in the prescribed manner and, upon the registration of the declaration, the person making the declaration again becomes an Australian citizen.

9.The relevant policy guidelines for ceasing and resuming Australian citizenship are outlined in Chapter 9 of the Citizenship Instructions.

4.      The respondent has contended in Part III of the respondent’s Statement of Facts and Contentions that:

“10.It is clear from the correspondence between the applicant and the Singapore Registry of Citizens that the applicant retained his Singapore citizenship after renouncing his Australian citizenship.

11.The distinction between retaining and acquiring citizenship is important. Section 23AA of the Act requires a person to have done a voluntary and formal act by which the person acquired the nationality or citizenship of a country other than Australia.

12.There are numerous decisions of the Tribunal that have found that section 23AA does not apply in situations where an applicant has renounced his Australian citizenship not to acquire but to retain citizenship of another country (see Desira v Minister for Immigration and Multicultural Affairs [2002] AATA 32; Cho v Minister for Immigration and Multicultural Affairs [2002] AATA 238; Borg v Minister for Immigration and Multicultural and Indigenous Affairs [2004] AATA 812).

13.Since the applicant took the step of renouncing his Australian citizenship to retain and not to acquire his Singapore citizenship, section 23AA has no application.

14.In addition, as the applicant was over 25 at the date of his application, section 23AB also has no application.”

And the respondent accordingly contended that the decision under review should be affirmed.

5.      The applicant also filed a Statement of Facts and Contentions.

6.      In that statement the applicant, while not disputing the facts set out in the respondent’s Statement of Facts and Contentions referred to proposed new legislation, bills for which have been introduced in the Federal Parliament called the “Australian Citizenship Bill 2005” and the “Australian Citizenship (Transitional and Consequentials) Bill 2005” which were introduced in Parliament on 9 November 2005.

7.      The provisions of the two Bills would, if they became law, allow a person who has ceased to be an Australian Citizen under the “renunciation provisions” referred to above, in order to acquire or retain the nationality or citizenship of a foreign country or to avoid suffering sufficient hardship or detriment to reacquire Australian citizenship if the Minister is satisfied that they are of good character.

8.      The applicant’s contention is that if the proposed legislation is enacted, he will be eligible to become an Australian citizen again, subject only to satisfying the Minister as to his being of good character.

9.      When the matter was heard, the applicant requested that the Tribunal defer making a decision on his application until the legislation has been enacted.  The applicant submitted that the bill will be passed by the Parliament although it is not clear when the legislation will be enacted.

10.     The respondent submitted that it is not clear from the terms of the proposed new Bills that the applicant would simply be able to wait on the passage of the Bill and that it is likely that he will still need to make an application.

11.     The respondent further submitted that the Tribunal is bound to consider and determine the applicant’s application on the law as it currently stands.  The Tribunal accepts that this is so and while the Tribunal sympathises with the applicant, the Tribunal is clearly not in a position as the law currently stands to do anything other than affirm the decision under review.

12.     The facts of the present matter are, in some respects, similar to those in the matters of Desira v Minister for Immigration and Multicultural Affairs [2000] AATA 32 and Cho v Minister for Immigration and Multicultural Affairs [2002] AATA 238.  In the latter matter Senior Member Allen stated “in these circumstances therefore although the particular result may seem perverse I feel I have no choice but to affirm the decision under review.”  The Tribunal is of the same view in this matter.

13.     Accordingly the decision under review is affirmed.

I certify that the 14 preceding paragraphs are a true copy of the reasons for the decision herein of Mr A Sweidan, Senior Member

Signed:         .....................................................................................
  Associate

Date/s of Hearing  5 April 2006
Date of Decision   June 2006
Solicitor for the Respondent     Mr A Gerrard, Australian Government Solicitor