Lopez and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Citizenship)

[2022] AATA 143

Lopez and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Citizenship) [2022] AATA 143 (2 February 2022)

Division:General Division 

File Number(s):      2020/5363

Re:Rosalind Lopez  

APPLICANT

AndMinister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

RESPONDENT

DECISION

Tribunal:Deputy President J W Constance

Date:2 February 2022

Place:Sydney

The reviewable decision to refuse the Applicant’s application to resume her Australian citizenship, made 7 August 2020, is affirmed.

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Deputy President J W Constance

CATCHWORDS

CITIZENSHIP – application to resume citizenship – whether Australian citizenship was ceased to avoid suffering significant hardship or detriment – decision affirmed

LEGISLATION

Australian Citizenship Act 1948 (Cth)

Australian Citizenship Act 2007 (Cth)

CASES

Sirote and Minister for Immigration and Border Protection (Citizenship) [2015] AATA 564

SECONDARY MATERIALS

Revised Citizenship Procedural Instructions – Citizenship Procedural Instruction 12

REASONS FOR DECISION

Deputy President J W Constance

2 February 2022

INTRODUCTION

1. Ms Lopez was born in Australia prior to 1948.  When the Australian Citizenship Act 1948 (Cth) came into force in 1948 Ms Lopez became an Australian citizen.

2. By no later than 1955 Ms Lopez was also a citizen of the Republic of the Philippines.  It is unclear whether she obtained that citizenship by birth or by conferral, however how she obtained that citizenship is irrelevant in this matter.

3. On 15 January 1992 Ms Lopez declared that she renounced her Australian citizenship.  On 12 May 1992 the renunciation was registered in the Australian Department of Immigration and Ethnic Affairs.[1]  A short time later Ms Lopez was elected as the Governor of the Davao Oriental Province in the Philippines, a position she held for three complete terms.[2]

   [1] Exhibit R2 at 1.

   [2] Exhibit A2.

4. Ms Lopez applied to resume her Australian citizenship on 14 August 2018.[3]  On 7 August 2020 a delegate of the relevant Minister refused the application.[4]  I will refer to this refusal as the reviewable decision.

   [3] Exhibit R1.

   [4] Exhibit R1 at 25.

5. Ms Lopez has applied to the Tribunal to review the reviewable decision.  For the reasons which follow, the reviewable decision will be affirmed.

   LEGISLATION AND POLICY GUIDELINES

   Australian Citizenship Act 2007 (Cth)

6. Section 29 of the Australian Citizenship Act 2007 (Cth) (the 2007 Act) provides, in part:

   (1)  A person may make an application to the Minister to become an Australian citizen again.

   ……

   (3)  A person is eligible to become an Australian citizen again under this Subdivision if:

   (a)    the person ceased to be an Australian citizen under:

   (i)     section 17 (about dual citizenship) of the old Act; or

   (ii)    section 18 (about renunciation) of the old Act in order to acquire or retain the nationality or citizenship of a foreign country or to avoid suffering significant hardship or detriment; or

   (iii)   section 20 (about residence outside Australia) of the old Act; or

   (iv)   section 23 (about children) of the old Act; and

   (b)if the person is aged 18 or over at the time the person made the application - - the Minister is satisfied that the person is of good character at the time of the Minister’s decision on the application.

7. In section 3 the old Act is defined to mean “the Australian Citizenship Act 1948 as in force at any time before the commencement day” [of the 2007 Act].

   Citizenship Procedural Instruction 12

8. The policy relevant to the issue for determination, as set out below, is Citizenship Procedural Instruction 12 – Assessing significant hardship, disadvantage or detriment for the purposes of Australian citizenship. It provides in part:

   Examples of the type of significant hardship or detriment for the purposes of subsections 29(2) and (3) of the Act, that a person renounced Australian citizenship in order to avoid, may include:

   Inability to obtain employment without renouncing Australian citizenship. To resume Australian citizenship in reliance upon the ‘avoid suffering significant hardship or detriment’ limb of section 29(2)(a)(i) of the Act, the applicant would need to demonstrate that they renounced Australian citizenship to avoid significant hardship or detriment.

   It may be relevant for the decision maker to consider whether the skills the person had at the time of renunciation were only relevant to the employment they were engaged in overseas or whether they could have been utilised in alternative employment not requiring sole citizenship.

   It may also be relevant for the applicant to be able to provide a letter from the employer attesting that the applicant could not be a dual citizen when commencing employment. Such a letter may be available on the applicant’s renunciation file.

   A requirement to pay significantly higher taxes as a non-citizen, where the higher taxes may have prevented a person being able to afford fundamental assets such as a family home.

   Denial of the usual marital rights in relation to tax and inheritance laws on the death of a spouse or otherwise.

   Ineligibility to obtain a driver’s licence, which may affect a person’s employment prospects.

   Denial of, or significant restrictions on, access to social security benefits.

   Ineligibility to undertake formal courses of study and/or obtain certain educational qualifications.

   Inability to access loans from financial institutions.

   Ineligibility to purchase or retain property.

   Inability to allow their children to participate fully in the social, political and cultural life of their other country of residence.

   Inability for families to be treated as a unit when family members hold different passports.

   ISSUE FOR DETERMINATION

9. It is not in dispute that Ms Lopez ceased to be an Australian citizen under section 18 in the old Act.  It is also not in dispute that she did not cease to be an Australian citizen “in order to acquire or retain the nationality or citizenship of a foreign country”.

10. The issue for determination is did Ms Lopez cease to be an Australian citizen “in order to ………. avoid suffering significant hardship or detriment”.

    EVIDENCE AND FINDINGS OF FACT

    The evidence of Ms Lopez

11. Ms Lopez provided a statement received in the Tribunal on 9 July 2021.[5]  She did not give evidence at the hearing as the Minister agreed to the statement being taken into evidence without Ms Lopez being available for cross-examination.

    [5] Exhibit A2.

12. Ms Lopez stated, in part:

    …………… I renounced my Australian citizenship in 1992 as to meet specific requirements in order to seek office as governor of Davao Oriental in the Republic of Philippines.

    ……………

    It was distressing and agonising to relinquish my Australian passport that tied me to the country of my birth and which I had planned to spend many years with my family living there.

    Since I then met all the requirements of a gubernatorial candidate, my application for governor was approved. After the election was held and the votes tallied, I was declared the winner and governor-elect. However, my opponent challenged in the courts my win on the grounds that I was not a Filipino citizen but an Australian. My case was litigated and subsequently reached the Supreme Court of Philippines, which ruled in my favor.

    The ordeal took a toll on my family and me and caused great stress and suffering that was not easily forgotten even after these many years.

    I could have taken an easier path and not run for governor and thus sparing all of us pain and suffering but there are downsides to such a decision. This would mean that I would have to turn my back on my political party that my late husband had devoted his life to since he was twenty-three years of age when he was first elected mayor of Mati, Davao, the provincial capital of Davao Oriental, till his death at sixty-two while still serving as the governor of the province. As I have stated many times, I did not want to run for office since I was a simple housewife with zero political experience. It was similar to the case of Corazon Aquino who was pressured to run against dictator Ferdinand Marcos in 1986 election after her husband Benigno Aquino, who was the presidential candidate, but was assassinated by Marcos’s henchmen upon his arrival from the United States. Her story is well known by the free world and was used against me as an example of how one must do ones duty when extraordinary circumstances require it.

    I decided to tamp down my feeling of inadequacy and terror and run for governor. Luckily, I was victorious the first time and I again ran for governor twice more bringing my total service to three complete terms.[6]

    [6] Exhibit A2 at 1-2.

13. Ms Lopez was not required for cross-examination on her evidence, and I have no reason to consider that she was not an honest witness.  I accept her evidence.

    Letter dated 20 January 1992 from Ms Lopez’s legal representatives to Secretary, Department of Immigration

14. The letter contained the following, omitting formal parts:

    … we would like to request your good office to issue a certification to the effect that our client’s Australian Passport … which has been surrendered to you in October 1991, has been cancelled.

    The aforesaid certification is urgently needed by our client in connection with her intention to run in the coming May 1992 Philippine elections.

    Attached herewith is the Declaration of Renunciation of Australian Citizenship executed by our client, and a photo-copy of her Philippine Passport.

    We trust that you will accord immediate attention to the foregoing request.[7]

    Correspondence from the Department of Home Affairs following Ms Lopez’s application to resume Australian citizenship

    [7] Exhibit R2 at 2.

15. On 31 January 2019, the Department wrote to Ms Lopez as follows, omitting formal parts:

    I am writing in regards to the application to resume of [sic] Australian citizenship you lodged on 7 March 2018.

    Investigation of your circumstances by officers of the Department shows that you did not lose Australian citizenship upon acquisition of Philippines citizenship by Descent on 16/05/1934 or by marriage on 26/06/1954. Your application was finalised on this basis on 16/03/2018.

    Evidence of your Australian citizenship will be forwarded to you shortly via registered post to your address.

    If you intend to travel to Australia, you will need to apply for an Australian passport. For information about Australian passports please visit the Passports Office website at Exhibit R1 at 79.

By letter of 8 August 2019, the Department advised Ms Lopez, in part:

I am writing concerning your Australian citizenship status. On 31 January 2019 the Department of Home Affairs (the Department) advised you that you are currently an Australian citizen, and that you did not lose your Australian citizenship by acquiring the citizenship of the Philippines. The Department issued you with an Australian Citizenship Certificate based on this finding. It has since come to the attention of the Department that this finding was incorrect, as you renounced your Australian citizenship on 12 May 1992.[9]

[9] Exhibit R1 at 81.

MS LOPEZ’S ARGUMENTS

It was argued that I should find “extenuating circumstances” as to why Ms Lopez renounced her Australian citizenship and to show compassion “to a then distraught widow” affected by “large forces beyond her control.”[10]It was put that:

Mrs Lopez reluctantly relinquished her Australian citizenship in order to keep the Governorship from going to Marcos cronies and enabling the party to carry out the repressive orders of the Marcos dictatorship for 12 years. It was with a sense of duty and sacrifice to the Filipino people and nation that Mrs Lopez gave up her Australian citizenship.[11]

[10] Submission dated 26 March 2021.

[11] Exhibit A1, Statutory Declaration.

It was put that it is common for a widow to be asked to run for public office in the Philippines and that Ms Lopez was pressured to run in the election held in May 1992.  Further, it was argued that it was “absurd” to focus on hardship and detriment so long after the events which caused Ms Lopez to renounce her Australian citizenship.

In relation to the incorrect advice provided by the Department it was argued that:

The Home Affairs Bureau [sic] by unilaterally taking away Mrs. Lopez’s citizenship and declaring it null and void a violation of her civil rights and possibly human rights. Is this lawful in todays [sic] Australia? In an authoritarian regime this may happen but, this does not happen in a democratic country like Australia. It should not happen, but it did to Mrs. Lopez. Were there any hearings? Questions? Information requests?[12]

[12] Exhibit A3

REASONING

In Ashley Sirote and Minister for Immigration and Border Protection[13], the Tribunal considered the ordinary meaning of the words used in subparagraph 29(3)(a)(ii) of the 2007 Act and adopted the following meanings from the Macquarie Dictionary:

The meaning of “suffering significant hardship or detriment” is not defined in the Act. In such circumstances the phrase should be given its ordinary meaning. The Macquarie Dictionary defines these words as follows:

“significant” means “important; of consequence”;

“hardship” means “a condition that bears hard upon one; severe toil, trial, oppression, or need”; and

“detriment” means “loss, damage, or injury”.[14]

In the interests of consistency within the Tribunal’s decision-making it is appropriate to adopt these meanings.

[13] [2015] AATA 564.

[14] At [15].

I do not agree with the submission on behalf of the Minister that the ordinary meaning of suffer, in the context of the section of the 2007 Act, is “to undergo or feel pain or distress” or “to sustain injury, disadvantage or loss”.[15]In the context of the expression “to avoid suffering significant hardship or detriment”, the word suffering simply means experiencing.

[15] Macquarie Dictionary.

In order for Ms Lopez to succeed in her application, I must be satisfied on the balance of probabilities that she renounced her Australian citizenship “to avoid suffering significant hardship or detriment.” [Emphasis added].Bearing this in mind, it is apparent that the distress Ms Lopez felt as a result of renouncing her citizenship and the hardship she suffered as a result of her election as Governor, are not relevant to this application.  This is made clear by Ms Lopez’s statement that she did not want to run for Governor and that it would have been easier for her had she not done so.  On the evidence before me I am satisfied that such hardships and/or detriments were a result of her decision to run as Governor rather than being hardships and/or detriments which she avoided by her renunciation.

The only consequence which Ms Lopez avoided suffering by renouncing her Australian citizenship was the pressure she felt from her late husband’s political party to run for the position he had previously held.  There is no evidence to suggest that this was a significant hardship or detriment within the ordinary meaning of those words as set out earlier in these reasons.

While I understand the emotional involvement of those representing Ms Lopez, I cannot set aside or vary the reviewable decision based on feelings of compassion or on extenuating circumstances.  Such considerations are not within the power of the Tribunal to take into account under the provisions of the Act.

I do not accept that there is any basis for the contention that the Department acted in violation of Ms Lopez’s civil or human rights at any time.  I am satisfied that the advice that Ms Lopez retained her Australian citizenship was a result of an unintentional error which was corrected.  Considering the requests made by her legal representatives at the time Ms Lopez renounced her citizenship, it should have been always clear to Ms Lopez that she had renounced her citizenship and that the advice given by the Department in January 2019 was likely to be incorrect as it did not refer to her renunciation but to her acquiring citizenship of the Philippines.

CONCLUSION

The reviewable decision made 7 August 2020 to refuse Ms Lopez’s application to resume her Australian citizenship will be affirmed.

I certify that the preceding 26 (twenty -six) paragraphs are a true copy of the reasons for the decision herein of Deputy President J W Constance

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Associate

Dated: 2 February 2022

Date of hearing:	9 July 2021
Advocate for the Applicant:	C Mendoza, P Ybasco
Solicitor for the Respondent:	J Hutton, Australian Government Solicitor