Koch and Department of Immigration and Multicultural and Indigenous Affairs
[2005] AATA 1008
•6 October 2005
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2005] AATA 1008
ADMINISTRATIVE APPEALS TRIBUNAL )
) No N2005/343
GENERAL ADMINISTRATIVE DIVISION ) Re BERND PETER KOCH Applicant
And
DEPARTMENT OF IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
Respondent
DECISION
Tribunal Ms G Ettinger - Senior Member Date6 October 2005
PlaceSydney
Decision The decision under review is affirmed. ..............................................
Ms G Ettinger
Senior Member
CATCHWORDS
Immigration - Applicant claims to be Australian citizen – claims that section 23AA of the Australian Citizenship Act 1948 applies to reinstate his citizenship - not applicable - credit issues - documents altered – found not to previously have been an Australian citizen – decision affirmed
Australian Citizenship Act 1948 s 23AA
Administrative Appeals Tribunal Act 1975 s 25
Collector of Customs (NSW) v Brian Lawlor Automotive Pty Ltd (1979) 24 ALR 307
REASONS FOR DECISION
6 October 2005 Ms G Ettinger - Senior Member INTRODUCTION
1. Mr Bernd Peter Koch whose birth date is 27 August 1949, arrived in Australia in 1966 on a permanent resident visa with his parents, who migrated here.
2. He told me that in 1968 he was called up for National Service, and signed up with the Army for six years. He said that he understood Australian nationality was necessary to join the SAS, but that he was nevertheless trained by the SAS in Perth, and served in Vietnam for a year, so he must have been an Australian citizen. He produced documents purporting to indicate that he had served in the Australian Army, being a “Record of Service” and an “Interim Discharge Certificate” both of which I have found to have been altered, and not genuine. The “Record of Service” included reference to medals conferred. Unfortunately for Mr Koch, the Army, after having conducted research indicated that it had never heard of the medals.
3. Mr Koch’s evidence was that he was in Darwin in December 1974, where citizenship (for which he acknowledges he has never made an application), was conferred. Mr Koch claimed that he lost everything in Cyclone Tracy, including his citizenship papers. He said that he continued working in the Northern Territory, and in 1985 commenced as a welfare officer in Sydney at Glebe House Ltd, Half-Way House. The official records which I have accepted, indicate he departed Australia and returned to Germany in December 1986, where he subsequently married.
4. Mr Koch came to Australia in 2000 for a visit with his wife and her parents, and then arrived back in Australia in October 2004 with his wife and her children from a former marriage. Mr Koch expressed total allegiance to Australia, and was very keen for me to know that when he was working as a truck driver in Germany, he always displayed an Australian flag.
5. Mr Koch maintained that he was an Australian citizen, and said that he sent his Australian passport and renewal application to the Australian Embassy in Berlin for renewal in 2004, but told me that the package had been lost en route. This was corroborated by the evidence of his wife, Mrs Anegrete Koch who said that she recalled the passport being dark red. I am mindful Australian passports are not dark red. Mr Sean Kessner, a witness Mr Koch called, also gave evidence before the Tribunal, and told me that he saw the registered post receipt when Mr Koch mailed his passport to the Australian Embassy in Berlin. The Embassy was unable to verify Mr Koch’s assertions.
6. Mr Koch denied that he had altered or condoned the altering of documents such as the “Declaratory Certificate of Australian Citizenship” and the “Certificate of Evidence of Resident Status” which are now before the Tribunal, and denied he had a criminal record as indicated by the Australian Federal Police in the documents before the Tribunal. He emphasised several times that he had come back to Australia on the advice of Senator Amanda Vanstone with whom he had spoken personally from Germany.
7. I did not find Mr Koch a witness of credit. I found from the evidence before me that documents relating to his Army service, and citizenship were not genuine, and had been altered. I was satisfied from the evidence that he had never been an Australian citizen, and that his application for restoration of citizenship could therefore not be accepted. I affirmed the decision under review.
ISSUES TO BE DETERMINED
8. The issues before the Tribunal were:
· whether the Tribunal has jurisdiction to review the decision of the delegate of the Minister for Immigration and Multicultural and Indigenous Affairs;
· was Mr Koch at some time in the past an Australian citizen;
· did he cease to be an Australian citizen at some time in the past; and if so,
· whether section 23AA of the Australian Citizenship Act 1948 applies in order to consider restoration of his citizenship.
RELEVANT LEGISLATION
9. The relevant legislation is the Australian Citizenship Act 1948, (“the Act”), in particular sections 13 and 23AA.
10. Section 13 of the Act states that the Minister may, exercise a discretion, upon application in accordance with the approved form, to grant a certificate of Australian citizenship to a person who satisfies the Minister with regard to certain conditions.
11. Section 23AA provides the Minister, and the Tribunal standing in his shoes, a discretion to restore citizenship which has been lost or foregone in certain circumstances.
EVIDENCE
12. The Tribunal had before it documents lodged pursuant to section 37 of the Administrative Appeals Tribunal Act 1975, (“the T-documents”), and various other documents lodged by both parties.
13. Both Mr and Mrs Koch gave oral evidence before the Tribunal, Mrs Koch with the assistance of an interpreter. A number of other persons gave evidence on behalf of Mr Koch, including Mr Josef Hiesgen whose evidence is referred to the paragraphs below.
14. Mr Keith Barnes told me that he met the Koch family in November 2004 because Oliver, Mrs Koch’s son, was assisting him with the compilation of a phonetic dictionary. He expressed the view that the Koch family were willing workers, and an asset to Australia. As whether the family were willing workers and an asset to Australia were not questions with which I had to deal, his evidence was not of great assistance in my decision making.
15. Notwithstanding it was likely to have been given with sincerity, I found the evidence of Mr Sydney William Griffin of no assistance because he admitted that he did not have personal recall of the evidence he was giving regarding Mr Koch. He admitted that he was reading from notes that Mr Koch had written out for him with the relevant dates. His notes are Exhibit R3 before the Tribunal.
16. Mr Karl Lothar Schopp, aged 75 years, engineer, gave evidence by telephone. He told me that he recalled seeing Mr Koch in 1968 in army uniform. He said that his son also accepted Australian citizenship when he was in the Army.
SUBMISSIONS AND FINDINGS
whether the tribunal has jurisdiction to review the decision of the delegate of the minister for immigration and multicultural and indigenous affairs
17. The Respondent raised issues relating to the decision of the Assistant Manager, Citizenship, NSW of the Department of Immigration and Multicultural and Indigenous Affairs, (“the Department”), dated 16 February 2005 (T2) impacting on the jurisdiction of the Tribunal.
18. I noted that the Delegate of the Department stated that Mr Koch’s application for resumption of Australian citizenship dated 20 January 2005 had been refused on the basis that there was no record or evidence that he had ever been registered as an Australian citizen or acquired Australian citizenship by grant. In doing so, the Delegate acknowledged that from the Department’s point of view, the preconditions for consideration of resumption of citizenship had not been met.
19. I referred to Collector of Customs (NSW) v Brian Lawlor Automotive Pty Ltd (1979) ALR 307, as authority to decide whether I had jurisdiction to review the decision of the Departmental Delegate. I was mindful the majority in that case (Bowen CJ and Smithers J), held that section 25 of the Administrative Appeals Tribunal Act 1975 conferred upon the Tribunal jurisdiction in relation to a decision made in purported exercise of powers conferred by a relevant statute. Accordingly I found that I had jurisdiction to review the decision of the delegate in relation to Mr Koch’s application.
was mr koch at some time in the past an australian citizen?
20. Mr Koch and various other of his witnesses gave oral evidence before the Tribunal to the effect that he had been an Australian citizen. In a Statutory Declaration dated 16 February 2005 Mr Koch deposed: “In 1974 I became a (sic) Australian Citizenship in Darwin 3 weeks before Tracy I served in de (sic) Australian Army from 1968 to 1974 and served in Vietnam my Army Nr 4711605 … I Bernd Peter Koch declare that I am Australian Citizen. My passport (sic) was lost by Australian Embassy in Berlin Germany in February 2004.” (T1/8).
21. Mr Koch also supplied various photocopies or facsimile copies of documents in support of his statements. However there were serious issues of credit with regard to certain of these as indicated in the paragraphs which follow.
· “Declaratory Certificate of Australian Citizenship” stating:
i hereby certify that Bernd Peter KOCH born 27 August 1949 acguired Australian Citizenship pursuant to section 14 of the Australian Citizenship Act 1948 on 3th December 1974. (S2/9) (emphasis added by this Tribunal)
· “Certificate of Evidence of Resident Status” 40976 dated 6 March 1986 (Exhibit A9 and Exhibit R4)
· “Record of Service” dated 27/8/74 in the name of Peter Bernd Koch indicating in the Decorations and Medals field, “Vietnam Medal – Vietnamese Camp Medel – 3 BRC – 2 VCR” and indicating Mr Koch had served in the “SAS”. (S2/11)
· “Interim Discharge Certificate” dated “27 Aug 74” Army No 4711605 for Lcpl Koch
22. I have dealt with each of the abovenamed documents in the paragraphs which follow.
“declaratory certificate of australian citizenship”
23. Mr Koch’s evidence was that Australian citizenship had been conferred on him in Darwin in December 1994, and that all his belongings, including his personal documents had been lost in Cyclone Tracy. Mr Koch’s evidence was that he had never applied for citizenship, but that it had been conferred through his Army service. Mrs Koch’s evidence was also that she understood all her husband’s relevant Australian documents had been lost in Cyclone Tracy.
24. I was mindful also of the evidence of Ms Daniella Kiley who is employed in the Citizenship Services Section of DIMIA, and undertook research into Mr Koch’s situation. Her two affidavits, dated 6 July 2005and 22 July 2005 were before the Tribunal as Exhibits R6 and R7 respectively. Ms Kiley’s research into documents found no evidence recording the grant of Australian citizenship to a person or persons in the name of Bernd Peter Koch, Peter Bernd Koch, Peter John Kiogh and Peter John Kilgh.
25. Ms Kiley was asked in the Tribunal whether a grant of citizenship could be made without an application. She replied that pursuant to the legislation, application and meeting certain criteria were critical to the grant. I was satisfied that pursuant to section 13 of the Australian Citizenship Act 1948 for a grant of citizenship to be made, it is mandatory to apply.
26. Mr Koch supplied a faxed copy of a purported “Declaratory Certificate of Australian Citizenship” (S2/11) which reads as follows:
“i hereby certify that Bernd Peter KOCH born 27 August 1949 acguired Australian Citizenship pursuant to section 14 of the Australian Citizenship Act 1948 on 3th December 1974.” (emphasis added by this Tribunal)
27. His explanation at the Tribunal for still having the Certificate, even though he had previously stated that his documents were all lost in Cyclone Tracy, was that he had sent a copy of it to his mother in Germany at the time of the conferral of citizenship to show her he was an Australian citizen. He said that when the document was requested of him by the Respondent, he asked her to fax it to him. He said that it had no fax markings because he had photocopied it, and did not keep the “original faxed to him” by his mother. When asked about the lower case “i” in the Declaratory Certificate of Australian Citizenship, Mr Koch became indignant, denied he had in any way altered the document, and offered to take a lie detector test.
28. Mr T Alt, a Senior Forensic Document Examiner, in his report dated 17 May 2005 pointed to a number of inconsistencies in the document at S2/9, namely to the wording of the Certificate, and the spelling errors. He commented on the lower case “i” , for “I”, the misspelling of “acquired” as “acguired”, and “3th” for “3rd”. He also pointed out that Mr Koch’s claim citizenship had been conferred in 1974 was inconsistent with a number of other aspects of the document. He stated that the number ZO6429058L was not the actual Certificate number, but the citizenship number allocated when citizenship was first granted to a person, with the first two years being the year of application i.e. 1964 for the ZO6429058L number, (my emphasis), rather than 1974, as asserted by Mr Koch. Mr Alt also pointed out other inconsistencies in his report.
29. Ms Kiley also pointed out the same typographical errors noted by Mr Alt, and mentioned above, and referred to documents attached to her affidavits. She further indicated that although the document at S2/9 purported to have been signed by the “Secretary, Department of Immigration and Ethnic Affairs”, the name of the Department in 1974 (Mr Koch’s alleged year of citizenship), was “Labor and Immigration”. She also indicated that on 3 December 1974, (the date shown on S2/9), the Secretary of the Department was not “W A McKinnon” but “Dr I G Sharp”. Ms Kiley also indicated that in December 1974, declaratory certificate numbers were prefixed with the letters AC(D), AC(DM) or CD and CD(M). CAS was not used until 1 October 1984 she said, noting that on S2/9, the letters were misspelt to be “case” and shown in lower case.
30. Mr J Hiesgen submitted the original of his “Certificate of Australian Citizenship” ZO6419057L, a copy of which is Exhibit A2 before the Tribunal. I noted that in the photocopy which he originally provided, the identification “CAS 058276” had been omitted. Mr Koch, referring to Mr Hiesgen’s evidence and documents, submitted there were inconsistencies in the Respondent’s numbering of the documents.
31. Mr Koch strenuously denied his Certificate had been altered using another person’s Certificate. He also told the Tribunal that he had never applied for Australian citizenship as that was not necessary in the Army. In support of that assertion he referred me to Exhibit A3 which was a document of Sue Langford writing about the National Service Scheme 1964 – 1972, and Exhibit A4, a document entitled “Historical Overview of Australian Citizenship Law”. Mr Koch relied on a statement in Exhibit A4, which stated with regard to non-Australians in the Armed Forces: “Note that permanent residents who are in the process of obtaining Australian Citizenship, or who are eligible for Australian Citizenship, may serve in the Australian Armed Forces contingent on their acquiring Australian Citizenship.” He asserted that he obtained citizenship on 3 December 1974, while in the Army. Mr Koch said he believed he had been an Australian citizen since 1968.
32. I did not find the document by Sue Langford assisted Mr Koch in his claim that his citizenship had simply been granted without an application having been made. I was satisfied from the evidence of Mr Alt and Ms Kiley that alterations had been made to the document Mr Koch submitted as the “Declaratory Certificate of Australian Citizenship”. I was mindful also of the spelling errors, and was satisfied that it was unlikely they would have originated from the Department.
33. From the above evidence I was satisfied that S2/9 was a document resulting from alterations made to a “Certificate of Australian Citizenship” unrelated to the 1974 year. It had been altered to appear to apply to Mr Koch, either by him, and in any case, the alteration was condoned by him. I was satisfied that the “Certificate of Australian Citizenship” submitted by Mr Koch was false and that it was not proof of his Australian citizenship
“certificate of evidence of resident status” No 40976
34. I turned my attention also to the “Certificate of Evidence of Resident Status” No 40976 submitted by Mr Koch (Exhibit A9). In that regard, Ms Sharon Edgerton, manager of the Citizenship Section, Sydney office of DIMIA, gave oral evidence, and brought with her the file containing a copy of the original of Mr Koch’s “Certificate of Evidence of Resident Status” No 40976, a photocopy of which is now Exhibit R4 before the Tribunal. This was compared with the photocopied document Mr Koch had tendered to the Tribunal (Exhibit A9).
35. I noted that various words were typed onto Exhibit A9 in a font different from that on the original document, and the line which reads “is not an Australian citizen” on the original document, had been changed to read “is an Australian citizen” on Exhibit A9.
36. I noted further from the “Application for Evidence of Resident Status in Australia” document, date stamped 4 March 1986, also at Exhibit R4, that Mr Koch had completed the application designating himself “Koch Peter Bernhard” (my emphasis), and that this had been reproduced on the original “Certificate of Evidence of Resident Status”, (Exhibit R4), whereas on Exhibit A9, this had been changed to “Koch bernd or berndt Peter” (my emphasis).
37. On the application, Mr Koch had also ticked the marital status box indicating he was married. In another part of the application form, he had replied “No” to a question asking “Have you become an Australian Citizen?”. At the Tribunal Mr Koch denied having been married before, and Mrs Koch said that she believed that when she married Mr Koch in 1991 he had never before been married. I have not made any finding in relation to whether Mr Koch had previously been married as it did not concern me in relation to the application before me.
38. After Ms Edgerton gave her evidence, Mr Koch was asked whether in the light of the evidence now before the Tribunal, and the presence of the original documents, he wished to change his evidence, and accept that document Exhibit A9 had been altered. He declined.
39. Notwithstanding Mr Koch’s denials, I was satisfied to the requisite standard from seeing the original application form and Mr Koch’s original “Certificate of Evidence of Resident Status” and the evidence before me that Exhibit A9 had been altered as indicated above.
“interim discharge certificate”
40. Mr Koch also told the Tribunal that notwithstanding he had lost his documents in Cyclone Tracy, he had sent his mother a copy of his “Interim Discharge Certificate” from the Army, (S2/10) and that she had been able to fax him a copy when that was required.
41. I was mindful that there was before the Tribunal document S3/22, a letter of the Australian Army to DIMIA, date stamped as having been received 26 May 2005, in which the Army explained that in December 2004 it had had a request by a Peter Francis Koch of 59 Ingrid Road, Karella in which he sought service and medical records. The Army reported that it had failed to locate a person with that name having served in the Australian Army, and that as a result of a telephone conversation with the enquirer (no records of which had been kept), records of Lance Corporal 4718605 Peter Frederic Koch had been dispatched to Mr Koch. These included a “Record of Service” and “Discharge and Enlistment Documentation”. Referring to documents supplied by DIMIA relating to Mr Koch, the officer stated:
“3. The photocopies provided in your letter of 26 April 2005, show several inconsistencies when compared to other soldier records of the same era. … Specifically the following fields are of concern:
a. …
4. The copy of the Interim Discharge Certificate you have provided also has several inconsistencies …
a. Typeface. The font used does not appear to be one ever utilised by the Army for this purpose.
b. Reason (for discharge) field. This entry would not typically include a reference to service in the SAS.
c. Address Field. The last entry on this form would typically have an address listed where the Discharge Certificate would be forwarded … It is noted there is no address on the copy you have provided.
5. The service documents you have provided purporting to be those of 4711605 Peter Bernd Koch, do not match similar documents held within the service record accorded service number 4711605, being the records of Private Donald Herbert Southwell.
6. The documents you provided in respect of Peter Bernd Koch (or BP Koch) have been compared to those of 4718605 Lance Corporal Peter Frederic Koch. Your copies show non-text markings common to both sets of documents.
…”
42. Mr Koch said in response to questioning that as to his Army number, he remembered only “605”, and that the Vietnam Veterans Association had done the research as to numbers on their computer. Mr Koch also said that he had been trying to make contact with the SAS to obtain their records which he had been unable to do.
43. At S2/7, Mr Alt, in his report dated 17 May 2005, commented upon what appeared to him to be the removal of pre-printed dots, and in the address field to indicate where the discharge certificate was to be mailed, “marks in this area that are consistent with the appearance of the original entry being obscured or erased.” In the document (T1/7), the area designated for the address was blank. Mr Koch’s explanation was that he had no next-of-kin in that he was in dispute with his stepfather at the time and accordingly did not give his address, and further that he did not know where he was going after discharge.
44. Mr Leerdam submitted on behalf of the Respondent that there was no concrete evidence before the Tribunal that Mr Koch had ever been in Army service, but that even if he had, that did not presume any form of citizenship grant.
45. I was satisfied from the evidence of Mr Alt that the document at T1/7 had been altered as indicated by him, and satisfied with the information supplied by the Army that Mr Koch had submitted a falsified document, now before the Tribunal to indicate Army service which he did not have.
“record of service"
46. Mr Koch was also asked about the document “Record of Service”, (S2/11), the Respondent submitting that a copy of the original “Record of Service” of Peter Frederic Koch 4710605 (T22/93), sent to the Applicant had been altered to become the document at S2/11, with the alterations as disclosed by the Army in S3/22. I noted from the Army’s correspondence with DIMIA as follows:
“3. The photocopies provided in your letter of 26 April 2005, show several inconsistencies when compared to other soldier records of the same era. … Specifically the following fields are of concern:
a. Next of Kin. Lack of entries in the nominated Next of Kin fields. These fields would typically have an entry …
b. Decorations and Medals. Some of the decorations recorded are unknown to this Office – ie “3 BRC” and “2 VCR”.
c. Corps. This field would not typically have the entry “SAS”
d. Army Number. The service number recorded on the copy provided appears to be 4711605. Service records held by this office pertaining to his service number, relate to a Private Donald Herbert Southwell, not Peter Bernd Koch.
47. Mr Koch denied having seen the document before it was reproduced in the T-documents. He said that his “Record of Service” document at S2/11 had been faxed to him from the Respondent, and said that what appeared there was not his handwriting. When cross-examined about the medals recorded on S2/11, Mr Koch explained that the VCR were “valour” medals, and “BRC” stood for bravery.
48. Mr Josef Hiesgen who accompanied Mr Koch to the Hearing had a statement at T10 in which he said that he had known the Applicant since the early 1970s when Mr Koch was “a serving member in the 1 st Australian Regiment (SAS)” and that he (Hiesgen) was serving with 36 Sqn and later 486 Sqn at RAAF Richmond. Regrettably I could not accept Mr Hiesgen’s evidence.
49. I was satisfied from the document at T22/93 and the letter from the Australian Army that the document at S2/11 had been altered by or on behalf of Mr Koch with his acceptance of it, to refer to Army service which I was satisfied he had not given. The “Record of Service” document before the Tribunal was a falsified document.
whether mr koch ceased to be an australian citizen at sometime in the past and whether section 23aa of the australian citizenship act 1948 applies in order to consider restoration of his citizenship
50. I was satisfied that Mr Koch entered Australia on 30 September 1966 with the status of permanent resident on arrival. He departed Australia in December 1986.
51. Mr Koch asserted that he had left Australia on an Australian passport in 1986. He did not accept that the records of DIMIA (T13), as to arrivals and departure in 1986 which showed a person of his name leaving and arriving in Australia with permanent resident status related to him. I accepted that the printouts of DIMIA related to Mr Koch, that he departed on a German travel document ID 542715 visa 31159735 in 1986 as recorded by the Department, and that his assertions were incorrect.
52. Mr Leerdam referred to Exhibit R4, the application for “Certificate of Evidence of Residence Status” noting that Mr Koch acknowledged he had made that application dated 20 February 1986 in his handwriting. He submitted that the original document showed that Mr Koch had answered “Yes”, (married) to the question on marital status, and “No” to the question on whether he had become an Australian citizen at that date. I noted that in his submissions to the Tribunal, Mr Koch indicated that the “No” answer to the question on whether he had become an Australian citizen, was not in his handwriting.
53. Mr Leerdam submitted that the above should establish to the satisfaction of the Tribunal that Mr Koch was not an Australian citizen at 20 February 1986 when he submitted that application for “Certificate of Evidence of Residence Status”.
54. Mr Leerdam also relied on the original “Certificate of Evidence of Resident Status” 40976 (Exhibit R4) to submit that I should be satisfied beyond reasonable doubt that comparing it with Exhibit A9, that the latter was a fabrication. In support of the Respondent’s case, and to demonstrate that Exhibit R4 could not in any way have been altered whilst in archives, he emphasised that Ms Edgerton’s file in which Exhibit R4 was filed, and which was before the Tribunal, was not Mr Koch’s personal file, but a file with such certificates relating to a whole number of other people. I noted Mr Koch’s denial that he had altered any documents. However, from the evidence before me, in particular having had the benefit of seeing the original documents, I accepted on the balance of probabilities, that Exhibit A9 was a fabrication.
55. Mr Leerdam submitted that as Mr Koch was never an Australian citizen, the issue of restoration of citizenship was not relevant and section 23AA of the Act inapplicable.
56. I was satisfied from the records before me that Mr Koch left Australia on a German passport in 1986, and accepted that he has never applied for Australian citizenship, and that it has never been conferred on him. I did not accept the evidence of those persons before the Tribunal who stated that they knew he was an Australian citizen.
57. I was satisfied that the documents produced by Mr Koch with regard to proof of citizenship had been altered either by him or that he condoned that illegal action.
58. As Mr Koch has not been an Australian citizen, I cannot find that he ceased to be one at any time.
59. The Minister has discretion pursuant to section 23AA of the Act to restore citizenship in certain circumstances where a person 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, and the person convinces the Minister that he or she would have suffered significant hardship or detriment or if at that time he or she did not know that as a consequence of doing the act, he or she ceased to be an Australian citizen. Other indicia which the Minister, and the Tribunal standing in his shoes would take into account, include whether the person has maintained a close and continuing association with Australia, and the person’s intentions with regard to residing in Australia.
60. However, as I have found that Mr Koch has never been an Australian citizen, section 23AA of the Act cannot apply to restore his citizenship.
DECISION
61. The decision under review is affirmed.
I certify that the 61 preceding paragraphs are a true copy of the reasons for the decision herein of Ms G Ettinger - Senior Member
Signed: .....................................................................................
AssociateDate/s of Hearing 26, 27 July & 8 September 2005
Date of Decision 6 October 2005
Counsel for the Applicant Self Represented
Solicitor for the Respondent Mr L Leerdam, Phillips Fox Lawyers
APPENDIX
- SECT 23AA
Persons may resume citizenship lost in certain circumstances(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.
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1
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