Mocenigo and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Citizenship) - [2020] AATA 3599

Mocenigo and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Citizenship) [2020] AATA 3599 (17 September 2020)
Division:GENERAL DIVISION
File Numbers: 2018/7257
2018/7258

Re: Oscar Mocenigo
Marco Mocenigo
APPLICANTS

AndMinister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
RESPONDENT

DECISION
Tribunal:Ms Anna E Burke AO, Member
Date:17 September 2020
Place:Melbourne

The Tribunal sets aside the decisions of the delegate of the Respondent dated
13 November 2018, which refused the Applicants’ application for Australian citizenship.
The Tribunal remits the matters to the Respondent for reconsideration in accordance with the direction that the Applicants are eligible to become Australian citizens as they had a parent, Ms Vivien Passerini, who was an Australian citizen at the time of their birth, pursuant to section 16(2)(a) of the Australian Citizenship Act 2007 (Cth).
[sgd].................................................................
Ms Anna E Burke AO, Member
Catchwords
CITIZENSHIP – citizenship by descent – Applicants born outside of Australia – whether a parent of the Applicant was an Australian citizen at the time of the Applicants’ birth – whether parent lost her citizenship when she derived Italian citizenship from her father – whether citizenship can be lost without formal notification to the Australian government – the interaction of Australian and Italian law –– Nationality and Citizenship Act 1948 – decision under review set aside and remitted
Legislation
Administrative Appeals Tribunal Act1975 (Cth)
Australian Citizenship Act 1948 (Cth)
Australian Citizenship Act 2007 (Cth)
Australian Citizenship Amendment Act 1984 (Cth)
Australian Constitution
Law 555/1912 (Italian Citizenship Law)
Nationality and Citizenship Act 1948 (Cth)
Passports Act 1938 (Cth)
Cases
Allan and Department of Foreign Affairs (1986) 11 ALD 28
Australian Competition and Consumer Commission v P. T. GarudaIndonesia (No 9) (2013) 212 FCR 406
Barbaro and Minister for Immigration and Ethnic Affairs [1980] AATA 76
Re Canavan; Re Ludlam; Re Waters; Re Roberts [No 2]; Re Joyce; Re Nash; Re Xenophon (2017) 263 CLR 284
Neilson v Overseas Projects Corporation of Victoria Ltd (2005) 223 CLR 331
Secondary Materials
Citizenship Policy, 1 June 2016
Kim Rubenstein, Australian Citizenship Law (Lawbook Co, 2^nd ed, 2017)
REASONS FOR DECISION
Ms Anna E Burke AO, Member
17 September 2020
INTRODUCTION/BACKGROUND

Mr Marco and Mr Oscar Mocenigo (the Applicants), brothers aged 32 and 34 respectively, are Italian citizens currently living in Italy, relevant to this decision they are the sons of

Ms Vivien Passerini. They applied to become Australian citizens by descent on
15 October 2018 in accordance with section 16 of the Australian Citizenship Act 2007 (the Act).
Ms Vivien Passerini, the mother of the Applicants, was born in Australia in December 1956 and was an Australian citizen at the time of her birth. Ms Passerini’s parents, Carlo and Nerina Passerini, migrated from Italy to Australia in May and September 1956 respectively, becoming Australian citizens on 26 January 1962.
In 1972 the Passerini family returned to Italy and on 15 December 1972 Mr Carlo Passerini resumed his Italian citizenship in order to be able to obtain a bank loan to purchase real estate in Italy. Mrs Nerina Passerini did not renounce her Australian citizenship and is a dual Italian Australian citizen.
On 13 November 2018, a delegate of the Minister (the Respondent) refused the Applicants’ application for citizenship by descent, because at the time of their birth they did not have a parent who was an Australian citizen. The delegate’s decision record finds:
To become an Australian citizen by descent a person must meet the requirements for Citizenship set out in section 16 of the Australian Citizenship Act 2007 (the Act). I have found that I cannot be satisfied based on the information provided that you had a parent who was an Australian citizen at the time of your birth, therefore I have refused your application to become an Australian citizen by descent.
On 29 November 2018, an application for review of the delegate’s decision was lodged with the Administrative Appeals Tribunal (AAT), claiming that the decision should be reviewed because:
… as a girl my mother was not informed that she had lost Australian citizenship and for 20 years she was issued Australian passport regularly (first passport issued by Milan Embassy, 9 March 1978. This is when issue of passport should have been refused [eight/nine years before we were born]. Only in 1992 did she learn that she had lost Australian citizenship in 1972. Hence at the time of my birth she was not Australian. I got refused even if I possess and Extract from Register of Citizenship by Descent … and an Australian passport … now misplaced…
At the hearing conducted by telephone on 18 May 2020, the Applicants were represented by Ms Roz Germov of counsel, instructed by Ms Julia Ouzas of Maragos Ouzas Lawyers. Mr Jamie Grant of counsel, instructed by Ms Inshani Ward of Sparke Helmore Lawyers, appeared on behalf of the Respondent. The Tribunal was provided with documentation under section 37 of the Administrative Appeals Tribunal Act 1975 (the AAT Act) (the T-documents), and expert evidence from Professor Avv Beniamino Caravita di Toritto, Professor of Law University of Rome, Chairman of Caravita di Toritto e Associati Lawyers and Vice President of the Italian Association of Constitutional Lawyers. The Applicant submitted witness statements, other documentation and expert evidence from Professor Kim Rubenstein, Professor of Law Australian National University, author of Australian Citizenship Law and holder of a current Australian practising certificate. Professor Rubenstein also gave oral evidence.
EVIDENCE
In 1967, 1978, 1983 and 1988 Ms Vivien Passerini was issued with Australian passports.
On 27 May 1988 the Australian Consulate in Milan registered Mr Marco Mocenigo as an Australian citizen by descent under section 10B of the Australian Citizenship Act 1948.
A translated excerpt from the Registrar of Citizenship from the Office of the Registrar, Municipality of Trieste, dated 6 October 2005 certifies:
Carlo Passerini
… on 14.12.1972 Carlo Passerini appeared before the Registrar in the Municipality of Trieste. Mr. Passerini, born in Comeno on 1.5.1927 and married to Nerina Perossa, lost his Italian citizenship on 22.5.1962 because he became a naturalised Australian citizen.
As he decided to take up residence in the Republic of Italy within one year he thereby declared that he renounced Australian citizenship in order to resume Italian citizenship.
On 10 September 2007 Ms Passerini was granted resumption of her Australian citizenship.
A translated Certificate of Citizenship from the Mayor of Trieste dated 3 October 2008 certifies that Vivien Passerini, born in Melbourne in December 1956: was registered here as an Italian citizen on 15 December 1972 according to Art. 12 of Law no. 555/1912 by derivation from her father. Her father, Carlo Passerini, resumed Italian citizenship according to art 9, point 2 of Law no. 555/1912 on 15 December 1972.
Ms Passerini provided a statement dated 8 April 2010 at the beginning of her process to acquire citizenship for her children by descent. In it she states:
As I said during our phone conversation 31.3.2010, I do understand that according to the law I lost citizenship through my father in 1972, but as you can clearly gather from the enclosed documents, I was not aware of this as for 20 years the Embassy in Milan kept issuing passports for me… I’ve also sent you a copy of my Victorian Driver’s Licence I took a test for while living in Melbourne for the three years I mentioned previously. Had I been informed of this at once, or at least when I applied for passport renewal in 1978 I would have taken immediate steps to resume citizenship as it is so very precious to me and something of which I am immensely proud! Perhaps it would have taken a couple of years to get back but I would have eventually resumed it as I did in 2007 so of course my children would have become citizens by descent anyway as one was born in 1986 and one in 1987. I travelled back to Melbourne as often as I could and I even worked in Pharmacy at the Royal Melbourne Hospital in 1983, naturally as an Australian citizen. I have references of the then Head of the Department proving this if you need to include them in your files.
Infact when in 1992 I was informed by the Embassy in Milan that I was no longer an Australian citizen I suffered a terrible blow but unfortunately I was already in the midst of a very painful separation and I hardly had the energy to fight a very nasty battle which took many years (and lots of money in litigation) to get under control let alone start the long and arduous process of getting my Australian citizenship back. I knew I was not going back to Australia for a long time as my husband would not have allowed me to take my children with me and of course I was not going anywhere without them! So there seemed little point in trying to get it back until a little peace seeped back into my life.
Forgive me for bothering you with details of my personal life but I wanted you to understand a little of the situation and understand why I only resumed citizenship recently instead of beginning to process in 1992, immediately after I was informed that I was no longer a citizen.
The delegate’s decision record of 13 November 2018, found that the Applicants did not satisfy section 16(2)(a) of the Act, based on the following:
Your father Livio Mocenigo was born … in Trieste, Italy, and declared Italian citizenship only
Your mother Vivien Irene Nerina Passerini was born … in Melbourne, Australia and acquired Australian citizenship at birth.
Your mother acquired Italian citizenship on 15 December 1972 by derivation from father.
Your mother on acquiring Italian citizenship lost her Australian citizenship on this date under S23.
Your mother reacquired Australian citizenship on 10 September 2007.
As your mother ceased to be an Australian citizen on 15 December 1972, you did not have an Australian parent at the time of your birth on [birthdates] 1986 [and 1987].
EXPERT EVIDENCE
Mr Grant, on behalf of the Respondent, objected to Professor Rubenstein providing evidence to the Tribunal. In their written submission the Respondent contended that the expert evidence of Professor Rubenstein’s was of no value to the Tribunal and whilst accepting the Tribunal is not required to apply the rules of evidence, the Respondent noted that, unlike the operation of foreign law, the operation of Australian law is not a matter of evidence. They contended Professor Rubenstein’s evidence only goes to her opinion as to the operation of Australian law. The Respondent in its written submission referred the Tribunal to the matter of Neilson v Overseas Projects Corporation of Victoria Ltd (2005) 223 CLR 331 where their Honours Gummow and Hayne found:
Australian courts know no foreign law
The courts of Australia are not presumed to have any knowledge of foreign law. Decisions about the content of foreign law create no precedent. That is why foreign law is a question of fact to be proved by expert evidence. And it is why care must be exercised in using material produced by expert witnesses about foreign law.
Mr Grant submitted correctly that the Tribunal must make a decision in accordance with the law and in that context, he asserted that whilst the Minister had no objection to the Tribunal accepting Professor Rubenstein’s report as a legal submission, he would be objecting to her giving evidence. He argued that law is not a matter of evidence save to the extent of foreign law, the Tribunal’s opinion and that of counsel and witnesses of the law was irrelevant, as the Tribunal must make a determination in accordance with the law. Mr Grant argued that the Tribunal can take into account Professor Rubenstein’s submissions on the law but to the extent there is a suggestion that “the report and their statement of what the law is or ought to be should be persuasive, persuasiveness that independent of the report themselves that would be improper.” He contended that no weight should be given to Professor Rubenstein’s opinion on Italian law as she is not an expert in Italian law. Fundamentally he argued that Professor Rubenstein could not provide evidence on domestic law as a matter of fact.
Ms Germov argued that the Tribunal is not bound by the rules of evidence and its role is to make the correct or preferable decision, and in that context she argued the purpose of having an expert opinion is to assist the Tribunal to arrive at the correct or preferable decision. She argued that Professor Rubenstein is someone who is a foremost expert in the area of Australian citizenship, having studied this area over many years and would be of considerable benefit to the Tribunal’s deliberations.
Ms Germov argued it does not mean that the Tribunal has to accept Professor Rubenstein’s expert evidence or give it any weight in its determination, but given the parties were in dispute on the law in respect of this matter Ms Germov argued Professor Rubenstein’s expertise both as a scholar and practising lawyer in the area of citizenship would be of great benefit to the Tribunal’s deliberation. Ms Germov argued that as a lawyer holding an Australian practicing certificate, Professor Rubenstein was as entitled to comment on the law as counsel appearing before the Tribunal.
Mr Grant expressed concern that there appeared to be confusion of two concepts, reiterating that the Tribunal has to make a decision according to law, that he and the Applicants’ representative will make submissions on the law, that the content of the expert reports should be taken as a submission but that Professor Rubenstein should not give evidence on fact, that he could not cross-examine her on a fact of domestic law that was a matter for submissions.
Mr Grant agreed that the parties were in dispute on the law and not the facts of the matter before the Tribunal. He argued that the issue before the Tribunal was discrete, but he contended to invite evidence of law as to fact would be improper and an error in law. He argued that Tribunal could take account of Professor Rubenstein’s submission but not her evidence.
Following Mr Grant’s objection to Professor Rubenstein appearing at the hearing, noting that it was made on the day of the hearing and not prior, the Tribunal allowed Professor Rubenstein to appear as an expert witness for the Applicants and reserved determination of whether her evidence would be allowed.
Fundamentally, the Tribunal’s function is to review on their merits certain decisions made by the Commonwealth and make what the Tribunal considers to be the correct or preferable decision. To arrive at the correct or preferable decision the procedure to be followed is a matter for the Tribunal, in accordance with the requirement of section 2A of the AAT Act:
Tribunal's objective
In carrying out its functions, the Tribunal must pursue the objective of providing a mechanism of review that:
(a)is accessible; and
(b)is fair, just, economical, informal and quick; and
(c)is proportionate to the importance and complexity of the matter; and
(d)promotes public trust and confidence in the decision-making of the Tribunal.
It appeared that the Tribunal was not being asked to review the merits of the decision before it, but to determine what was the correct interpretation of the law as it stood in 1972, given the narrow dispute between the parties centres on the interpretation of the law as it stood in respect Carlo Passerini’s renunciation of his Australian citizenship or its impact on Vivien Passerini’s Australian citizenship. To this end the Tribunal noted the oft referred to findings of President J D Davies in the matter Barbaro and Minister for Immigration and Ethnic Affairs [1980] AATA 76 where he found:
The fair hearing in this instance takes account of the function of the Tribunal including the fact that it is an administrative tribunal and not a court of law. As an administrative tribunal, it has the duty to review an administrative decision and to exercise the decision-making power. It is necessary that the nature of the procedures adopted at the hearing and the nature of the evidence which is received by the Tribunal be adapted to the function which it performs.
On the day of the hearing with all the above in contention, the Tribunal allowed Professor Rubenstein to provide her expert opinion to assist the Tribunal to make a correct or preferable decision, much as an expert doctor would in numerous other matters before the Tribunal, given what was in dispute was the operation of law on which Professor Rubenstein is undoubtably an expert. The Tribunal concurs with Ms Germov that as a lawyer, Professor Rubenstein was entitled to comment on the law.
The majority of Professor Rubenstein’s evidence went to the operation of the law in 1972 and clarification of her written submission. The Tribunal finds the creeping in of court procedures to a Tribunal setting disturbing as it detracts from the very reason the Tribunal was established. The Tribunal concurs with the view of President Davies quoted above. However, on reflection and in considering the authority, the Tribunal has determined that Professor Rubenstein’s evidence at the hearing should not be allowed and would not be considered in the Tribunal’s determination as it could be interpreted as an opinion. The Tribunal noted the matter of Australian Competition and Consumer Commission v P. T. Garuda Indonesia (No 9) (2013) 212 FCR 406 where His Honour Perram stated at [31]:
There is no doubt that domestic law cannot be proved law by evidence. Sometimes it has been said that a court can take judicial notice of the law of the forum, a usage of the concept of judicial notice which is described by Mr Heydon in Cross on Evidence (LexisNexis Butterworths, 9^th ed, 2013), p 167 at [3075], as involving ‘on any view a misnomer’ and by Mr Carter as being a ‘promiscuous use of the terminology of judicial notice’ in Enid Campbell and Louis Waller (eds) ‘Judicial Notice: Related and Unrelated Matters’ in Well and Truly Tried: Essays on Evidence (The Law Book Company Limited, 2^nd ed, 1982) p 90. In truth, opinion evidence is not receivable on an issue of domestic law because the law is not a matter for proof or disproof.
The Tribunal also noted the observation of Mr Grant that any opinion on the interpretation of the law could and should be made by counsel during the hearing by way of submission, and the Tribunal concurred with this view and noted again the remarks of His Honour Perram:
I do not think that the Professor’s views are likely to add anything more in the form of evidence than they will add in the form of Mr Leeming’s eventual submissions based upon them.
Nevertheless, the Tribunal would like to note its gratitude for Professor Rubenstein’s assistance in these proceedings and her ongoing contribution to the understanding of Australia’s complex citizenship laws.
EXPERT WRITTEN SUBMISSIONS
Professor Avv Beniamino Caravita di Toritto, Professor of Law University of Rome, Chairman of Caravita di Toritto e Associati Lawyers and Vice President of the Italian Association of Constitutional Lawyers prepared a report in accordance with the guidelines for persons giving expert and opinion evidence in the AAT dated 28 October 2019. Professor Caravita di Toritto provided the following expert opinion in respect of Italian law:
What was the Italian citizenship law on 26 January 1962?
The guiding principle of Law 555/1912 was the ius sanguinis concept, meaning that Italian citizenship is awarded to a child whose father is an Italian citizen, regardless of the place of birth. The focus of the law was the blood bond between father and child, which resulted in the recognition of Italian citizenship by birth in case the father was an Italian citizen.
The original provision of the art.1 of the Law 555/1912 established that only the child of a father, who was an Italian citizen, became an Italian citizen by birth. In 1983 the Italian Constitutional Court (decision number 30 of 1983) declared unconstitutional the provisions of art.1 of Law 555/1912 to the extent that mother and father were not equally treated. As a result, from the date of the Decision and retroactively as of 1 January 1948 (the date of entry into force of the new Italian Constitution), Italian citizenship was automatically transferred to the child of a parent (mother or father) who was an Italian citizen.
…
Could an Italian citizen hold dual citizenship on 26 January 1962?
In general, Law 555/1912 did not allow double citizenship…
On 26 January 1962, did the applicants’ maternal grandfather lose his Italian citizenship upon becoming an Australian citizen?
As previously indicated, pursuant to art. 8, par. 1, no. 1 of Law 555/1912 anyone who spontaneously acquired a foreign citizenship and established his residence abroad would have lost his citizenship. On the basis of the assumptions known to us, Carlo Passerini (applicant’s maternal grandfather) became an Australian citizen on 26 January 1962. Therefore, as a matter of Italian law, in that moment he lost his Italian citizenship.
It is worth mentioning that pursuant to art. 12, par. 2, of Law 555/1912, “the minor children of those who lose their citizenship become foreigners when they share their residence with their parents, and they acquire the citizenship of a foreign State”.
How did one renounce foreign citizenship in 1972?
Art.16 of Law 555/1912 provided that “the statements mentioned in Law 555/1912 – thus also the renunciation of a foreign citizenship – could be filed before the civil registrar of the municipality in which the interested party resided or intended to establish his/her residency or before the diplomatic or consular authorities abroad”.
…
As citizenship is one of the inviolable and most personal human rights, this renunciation had to be made personally and voluntarily in order to be valid.
In conclusion, on the assumption that the applicant’s maternal grandfather was in Italy in 1972, in order to renounce the Australian citizenship, according to the Italian rules on citizenship he would have had to make a statement personally before the civil registrar of the municipality in which he resided or intended to establish his residency and that statement should have been entered in the citizenship registrar by the same registrar.
What was the consequence of that renunciation?
Pursuant to art. 9, par. 1, no. 2 of the Law 555/1912, “Anyone who has lost his or her citizenship in accordance with Articles 7 and 8 shall regain it… If he or she declare to renounce the citizenship of the State to which he or she belongs”.
Therefore, when he renounced his Australian citizenship on 1972, Mr Passerini reacquired the Italian citizenship.
Why was renunciation required in order to be an Italian citizen?
As mentioned above, in 1972 Law 555/1912 did not allow double citizenship.
It is possible that, at that time, in order to obtain a bank loan, Italian citizenship was required in Italy. For that reason, Mr Passerini would have needed to renounce his Australian citizenship and regain the Italian one.

Professor Kim Rubenstein, Professor of Law at Canberra University; formerly at Australian National University, author of Australian Citizenship Law and holder of a current Australian practising certificate, provided expert opinions dated 1 August 2019 and 16 December 2019. Professor Rubenstein summarised her opinion as follows:
1. Vivien was an Australian citizenship by birth. In 1956, birth in Australia was sufficient to automatically bestow Australian citizenship on a person through section 10(1) of the Australian citizenship Act 1948 (the 1948 Act)
2.    The statement that Carlo Passerini renounced his citizenship to get a bank loan in Italy, is not a legal statement of fact of renunciation…
3.    If Carlo did not follow the legal requirements to renounce Australian citizenship then, as a matter of Australian law, he remained an Australian citizen.
4.    To that end, his daughter was not deprived of her Australian citizenship.
5.    The father’s resumption of Italian citizenship did not deprive him of his Australian citizenship by naturalization… the then section 17 of the 1948 Act would not have applied to him. He remained an Australian citizen.
6.    The bestowal of Italian citizenship on Vivien did not enliven the then section 17 of the 1948 Act as she did not do anything to acquire it because she already had it by descent. She remained an Australian citizen…
7.    Vivien’s resumption of Australian citizenship in 2007 was not necessary and is not lawful as she continued to be an Australian citizen
8.    As an Australian citizen, born in Australia, she can pass on her citizenship to her sons.
Professor Rubenstein goes on to further explain the Australian law in respect of the Australian Citizenship Act 1948:
Renunciation (former section 18 of the Australian Citizenship Act 1948)
The Australian Citizenship Act, from its inception, and certainly during the period of these facts, required that for a person to be deprived of citizenship by renunciation, a written declaration had to be made and that declaration had to be registered by the Australian government.
Section 18 of the 1948 Act enabled a person to make a declaration renouncing Australian citizenship. Importantly, section 18(4) which was in effect from 26 January 1949 required that the “Minister shall register a declaration made under this section and thereupon the person making the declaration shall cease to be an Australian citizen”.
Further the Minister had a residual discretion under section 18(6) not to register a declaration unless satisfied that the person was a national [of] another country or would become one immediately on the registration of the declaration.
Unless the Department can produce a record of declaration being registered in the manner as set out above, Carlo Passerini did not renounce his Australian citizenship as a matter of Australian law and would still be recognised as an Australian citizen according to Australian law.
The fact that Carlo Passerini may have filled in a formal Italian statement that declared he was renouncing Australian citizenship had no legal effect on his Australian citizenship status.
As I write in my book at [4.1300](page 263) around Dual Citizenship:
…in Sykes v Cleary (No 2) (1992) 176 CLR 77… two of the persons who ran for Parliament, and whose positions were challenged, were citizens of other countries. It was alleged that they were ineligible for election due to s 44(i) the Constitution, which disqualifies people who owe an allegiance to another country. While both persons had taken an oath of allegiance to Australia with words indicating they were announcing their former citizenship, it was not sufficient in law to shed them of their former citizenship. The court held that the foreign citizenship must comply with the laws of the foreign country regarding renunciation of citizenship in order to be divested that citizenship.
With the same reasoning, Carlo Passerini would only have renounced his Australian citizenship if he had done so according to Australian law and had made a declaration that was registered with the Department at that time.
Therefore, if Carlo Passerini did not formally renounce his citizenship according to Australian law, Vivien did not lose her Australian citizenship.
Loss of citizenship through dual citizenship (former section 17 of the 1948 Act)
When Carlo Passerini “resumed Italian citizenship” for the purpose of his bank loans and house purchase, he did not automatically lose his Australian citizenship.
Before 22 November 1984, section 17 of the 1948 Act stated than an adult ceased to be an Australian citizen if they were outside Australia acquired the citizenship of another country.
As I write in my book in the discussion around the former section 17 of the 1948 Act, there is a distinction between acquiring a new citizenship and being recognized as a citizen. Carlo Passerini was resuming his existing Italian citizenship – it was not a new citizenship.
Moreover, if Italian law had allowed Carlo Passerini to keep Italian citizenship on taking up Australian citizenship, Carlo Passerini, according to Australian law, was allowed to be a dual citizen. There is nothing in the former or current Australian Citizenship Act that requires any citizen who is becoming naturalized to formally renounce their former citizenship and if Carlo did not formally renounce his Italian citizenship to become an Australian citizen, then as a matter of international law (as per Sykes v Cleary) he could have been a dual citizen throughout his life.
Section 23 of the 1948 Act concerning children of persons who lose citizenship, is therefore not enlivened as Carlo Passerini did not satisfy sections 17 or 18 the 1948 Act.
While Italian law bestowed Italian citizenship on Vivien through her father’s resumption of citizenship, this was bestowed upon her automatically, and not through her own action.
Professor Rubenstein was asked by the applicant to provide a response to Professor Beniamino’s expert opinion. In part she states:
Professor Beniamino states … “As citizenship is one of the inviolable and most personal human rights, this renunciation had to be made personally and voluntarily in order to be valid”. He then cites... Article 22 of the Italian Constitution.
This principle is consistent with the judgement is Australian High Court, in Sykes and Cleary (1992) 176 CLR 77 (and as affirmed in Re Canavan [2017] HCA 45) where the Court stated that renunciation of a country’s citizenship must be according to the laws of the country who citizenship is being renounced.
Therefore, for the applicant’s grandfather to have become an Italian citizen (according to the expert Italian evidence), he would have, as a matter of law, needed to renounce Australian citizenship according to Australian law. As there is no evidence that the applicant’s grandfather formally renounced his Australian citizenship according to the legal framework of section 18 of the Australian Citizenship Act 1948, … it is open to an Australian court, (consistent with the evidence of the respondent), to determine that the applicant’s grandfather did not in fact lawfully resume his Italian citizenship and so therefore did not lose his Australian citizenship under section 17 of the then Act.
…
If the respondent is not able to provide evidence, as set out in the Australian Citizenship Act’s requirements, of the applicant’s grandfather’s renunciation of Australian citizenship in Australia, then if the applicant’s grandfather did not lawfully renounce his Australian citizenship, then he did not lawfully resume his Italian citizenship, and he would have not lost his Australian citizenship under section 17 of the Act and his Australian daughter did not automatically lose her Australian citizenship section 23 of the Act.
In other words, unless the Department can produce a record of a declaration being registered in Australia in the manner set out above, Carlo Passerini did not renounced his Australian citizenship as a matter of Australian law and the fact that Carlo Passerini may have filled in a formal Italian statement that declared he was renouncing Australian citizenship was not proof that he had, as a matter of law, renounced his Australian citizenship. If that was not done, then that condition precedent to resume his Italian citizenship was not fulfilled.
Response to the Respondent’s contention around ‘resumption’ or ‘acquisition’
If the Tribunal is not confident of accepting the above opinion about the applicant’s father not having lost Australian citizenship due to Professor Beniamino’s evidence that he would only have become an Italian citizen if he had (in fact) renounced his Australian citizenship, and if the Tribunal prefers to accept that the applicant’s grandfather was identified in Italy as an Italian citizen, then it is my firm view that the applicant’s grandfather did not lose his Australian citizenship under section 17 as this was not a new citizenship that he never held before.
…
Indeed, the ‘Extract from the Register of certificate’ of 1972 (dated 6.10. 2005), provided in the material recording the applicants’ grandfather, the wording is clear that he ‘declared he renounced his Australian citizenship in order to resume Italian citizenship.’
As my book sets out, it is open to the Department, as a matter of law, to find that the applicant’s grandfather did not acquire a new citizenship but resumed his existing earlier citizenship. Such an interpretation is consistent with protecting both his and his daughter’s and his grandchildren’s ‘inviolable’ Australian citizenship.
…
Considering the above material, if there is no evidence, as a matter of Australian law of the applicants’ grandfather’s formal renunciation of Australian citizenship, then it cannot be assumed that he did renounce his Australian citizenship, and therefore did not lawfully become an Italian citizens, and he therefore did not lose his Australian citizenship under section 17.
Alternatively, he did not lose his Australian citizenship if he resumed Italian citizenship because he was not acquiring a new citizenship.
On either of these interpretations, the applicants’ mother continues to be an Australian citizen by birth and has continued to be Australian since her birth.
ISSUE
The issue in contention is whether Mr Marco and Mr Oscar Mocenigo had a parent who was an Australian citizen at the time of their birth in accordance with section 16(2)(a) of the Act.
LEGISLATION
Australian Citizenship Act 2007 (the Act)
Section 16 of the Act outlines the provision for application and eligibility for citizenship:
1A person may make an application to the Minister to become an Australian citizen.
Note: Section 46 sets out application requirements (which may include the payment of a fee).
Persons born outside Australia on or after 26 January 1949
2A 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
(b)if the parent was an Australian citizen under this Subdivision or Subdivision AA, or section 10B, 10C or 11 of the old Act (about citizenship by descent), at the time of the birth:
(i) the parent has been present in Australia (except as an unlawful non-citizen) for a total period of at least 2 years at any time before the person made the application; or
…
Section 17 of the Act provides, in part:
(1) If a person makes an application under section 16, the Minister must, by writing, approve or refuse to approve the person becoming an Australian citizen.
(1A) The Minister must not approve the person becoming an Australian citizen unless the person is eligible to become an Australian citizen under subsection 16(2) or (3).
(2) Subject to this section, the Minister must approve the person becoming an Australian citizen if the person is eligible to become an Australian citizen under subsection 16(2) or (3).
Nationality and Citizenship Act 1948 (the 1948 Act)
Section 10 of the 1948 Act outlines the provision of citizenship by birth:
(1)Subject to this section, a person born in Australia after the commencement of this Act shall be an Australian citizen by birth.
Section 17 of the 1948 Act outlines the loss of citizenship on acquisition of another nationality:
An Australian citizen of full age and of full capacity, who, whilst outside Australia and New Guinea, by some voluntary and formal act, other than marriage, acquires nationality or citizenship of a country other than Australia, shall thereupon cease to be an Australian citizen.
Section 18 of the 1948 Act provides for renunciation of citizenship:
(1) Where, under the law of some country other than Australia, an Australian citizen requires, at birth or whilst not of full age or by reason of marriage, the nationality or citizenship of that country, he may, at any time after attaining the age of twenty-one years or after the marriage, make a declaration renouncing his Australian citizenship.
(2) A person who became an Australian citizen by reason of the inclusion of his name in a certificate of registration or a certificate of naturalization granted to his responsible parent or his guardian may, at any time after attaining the age of twenty-one years, make a declaration renouncing his Australian citizenship
(3) …
(4) Subject to the next succeeding sub-section, the Minister shall register a declaration made under this section and thereupon the person making the declaration shall cease to be an Australian citizen.
Section 23 of the 1948 Act provides for children of persons who lose or are deprived of citizenship:
(1) Where the responsible parent or the guardian of the person not a full age ceases to be an Australian citizen under section seventeen, eighteen, nineteen or twenty of this Act, that person shall cease to be an Australian citizen if he is or thereupon becomes, under the law of some country outside Australia, a national or citizen of that country.
(2) …
(3) A person who has ceased to be an Australian citizen under the preceding provisions of this section may, within one year after attaining the age of twenty-one years or, in special circumstances, within such extended period as the Minister allows, make a declaration that he wishes to resume Australian citizenship and, upon the registration of the declaration in the prescribed manner, he shall again become an Australian citizen.
SUBMISSIONS
The Applicant’s contentions
The Applicants written submission contended that:
(a)Carlo Passerini did not lose Italian citizenship when he became an Australian citizen and on returning to Italy, he did not acquire Italian citizenship as contemplated by section 17 of the 1948 Act. Carlo resumed citizenship he always had. When Carlo Passerini resumed Italian citizenship, it was bestowed on Vivien Passerini automatically and not through any action of hers.
(b)There is no evidence that Carlo Passerini renounced his Australian citizenship in a manner required by the 1948 Act. Section 18(1) required a declaration to be made and section 18(4) required the Minister to register the declaration. It is necessarily implicit that the declaration had to be made in writing, given to the Minister and recorded in writing by the Minister. At present, there is no evidence that Carlo Passerini made such a declaration or that the Minister registered it.
(c)Neither section 17 nor 18 of the 1948 Act were enlivened, as Carlo Passerini did not renounce his Australian citizenship, section 23(1) was also therefore not enlivened in relation to Vivien Passerini.
(d)The Tribunal should consider the expert opinion of Professor Rubenstein which stated that renunciation is not an automatic means of losing Australian citizenship. There was a process that had to be fulfilled and there is no evidence thereof. The act of renouncing Australian citizenship may have sufficed for the purposes of the Italian law at the time but did not mean that Carlo or Vivian Passerini ceased to be Australian citizens under Australian law.
(e)The crucial question to be determined in the present proceedings was whether Carlo Passerini acquired the citizenship of another country by some voluntary and formal act. They contended there was no evidence that Carlo Passerini formally renounced his Australian citizenship as required by section 18 of the 1948 Act.
(f)Carlo Passerini’s declaration before the Registrar in Trieste Municipality on 14 December 1972 that he renounced his Australian citizenship in order to resume his Italian citizenship is not in itself sufficient to be an effective renunciation under Australian law. They stressed it is accepted Australian law that citizenship is such an important right that it can only be announced in accordance with the laws of the country who citizenship is being renounced.
(g)The Respondent had not demonstrated what procedure was in place at the relevant time for declaration of renunciation required by section 18(1) of the 1948 Act nor had they produced any evidence of how Carlo Passerini’s resumption of Italian citizenship had become known to Australian authorities or provided an explanation as to why the Austrian authorities kept issuing Vivien Passerini passports and had issued Australian passports and registration of births to her sons, the Applicants.
Ms Germov submitted fundamentally that Vivien Passerini did not lose her Australian citizenship, which she had acquired from birth, when her father resumed his Italian citizenship in 1972. Ms Germov referred the Tribunal to Professor Caravita di Toritto’s submission where he provided advice on the operation of Italian law in respect of dual citizenship in 1962, stating:
Said provision [Art. 7 of Law 555/1912] allowed the child of an Italian citizen, born and resident in a foreign country which had conferred to him local citizenship, to retain the Italian citizenship acquired by birth from the Italian father, and, after 1983, also from Italian mother, even if the parents happened to lose Italian citizenship. Once of age, the child was entitled to renounce Italian citizenship.
In light of the above, in 1962 Italian law allowed an individual born abroad (in particular in Australia) from an Italian father or, after 1983, an Italian mother, to simultaneously hold Italian citizenship (received by birth from an Italian parent) and foreign citizenship (i.e. citizenship of the country where they were born). But this was the only case in which dual citizenship was tolerated.
Ms Germov submitted that as citizenship is such an important right, indeed described by Professor Caravita di Toritto as one of the inviolable and most personal human rights, then the Tribunal should err on the side of caution and ensure that Vivien Passerini is not deprived of her Australian citizenship, a right she acquired at birth. There was no documentary evidence that Vivien Passerini had lost her Australian citizenship, which the Australian government continued to recognised until 1992 (some 20 years after she had apparently lost her Australian citizenship), issuing her with passports, registering her sons Marco and Oscar as Australian citizens by descent and allowing her family to reside in Australia for four years on the basis of her citizenship. Ms Germov noted there was no record of how and why the Australian Consulate in Milan had determined in 1992 that Vivien Passerini was no longer an Australian citizen and she had only been advised verbally that they could not renew her Australian passport.
Ms Germov argued that Australian law requires that an individual must comply with the laws of the foreign country regarding renunciation of citizenship in order to divest that citizenship, and as there was no record Carlo Passerini had renounced his Australian citizenship as required by Australian law, he retained that citizenship, as did his daughter.
Ms Germov contended that there is a distinction between acquiring citizenship by birth, which is a right, and conferral of citizenship, which is a discretion. When Carlo Passerini resumed his Italian citizenship, he had no need to renounce his Australian citizenship as he had never lost his Italian citizenship and the Italian Government had no right to refuse his resumption of Italian citizenship.
The Respondent’s contentions

The Respondent’s written submission contended that:
(a)Carlo Passerini ceased to be an Australian citizen in 1972 when he renounced his Australian citizenship and became an Italian citizen. Renunciation was necessary because, at the time, Italy did not permit dual citizenship. A formal act would have been needed to renounce that Australian citizenship and take up his Italian citizenship. The respondent relied upon the expert evidence of Professor Caravita di Toritto.
(b)Carlo Passerini performed some voluntary and formal act with the meaning of section 17 of the 1948 Act by which he acquired his Italian citizenship and therefore lost his Australian citizenship under section 17.
(c)Vivien Passerini ceased to be an Australian citizen when her father Carlo ceased to be an Australian citizen by operation of section 23(1) as she was not of full age (21 years) and her father was the responsible parent.
(d)there was no dispute that Vivien Passerini derived her Italian citizenship through her father on 15 December 1972.
(e)Vivien Passerini was not an Australian citizen from December 1972 until she resumed her citizenship in September 2007.
(f)Vivien Passerini was not an Australian citizen at the time of her son’s births in 1986 and 1987; therefore, they did not have a parent who was an Australian citizen at the time of their birth and therefore not entitled to citizenship by descent.
Mr Grant contended that this was a very narrow matter for the Tribunal to consider, whether Carlo Passerini lost his Australian citizenship in accordance with section 17 of the 1948 Act and therefore as a flow on consequence Vivien Passerini lost her Australian citizenship in accordance with section 23(1).
Mr Grant contended that Carlo Passerini’s loss of citizenship did not derive from section 18 of the 1948 Act as he was not renouncing his Australian citizenship but was performing a voluntary and formal act in accordance with section 17 to acquire citizenship of another nationality.
Mr Grant contended that section 18 had no bearing upon this matter, as sections 17 and 18 are two separate avenues by which an individual can lose their Australian citizenship, and Carlo Passerini had lost his Australian citizenship in accordance with section 17 of the 1948 Act, when he acquired his Italian citizenship. The Respondent took the Tribunal to the matter of Allan and Department of Foreign Affairs (1986) 11 ALD 28, where I.R. Thompson (Deputy President), Dr H.W. Garlick (Member), and H.C. Trinick (Member) found at [25]-[26]:
However, it is the meaning of the word "acquires" in section 17 of the Australian Act with which we are concerned; so the use of that term in the Irish Act is not conclusive. The Shorter Oxford English Dictionary gives two meanings of the word. The first is "gain, or get as one's own (by one's own exertions or qualities)"; the second is "to receive, to come into possession of". We consider that the second meaning is more appropriate to the context of section 17, although, because of the requirement that citizenship be acquired by the person's voluntary and formal act, the first is not inappropriate. We have found that, before the applicant registered his birth under section 27 of the Irish Act, he was not an Irish citizen and that, if he had not registered it, he would not have become one. Since the Irish Act came into force he had had, by reason of his Irish descent, a right to become one. For him to do so, however, his birth had to be registered under section 27. By virtue of regulation 4(3) of the Foreign Birth Regulations 1956 it could not be registered except at his own request after he became of full age. Consequently his becoming an Irish citizen depended upon him making that request. By making it he became an Irish citizen because the conditions had then been met for the provisions of section 6(4) of the Irish Act to take effect. We find, therefore, that he acquired Irish citizenship by that act of making the request for registration.
It is not in dispute that the act was voluntary; we have found that it was a formal act. Consequently, we find that section 17 of the Australian Act had the effect that, upon the applicant's birth being registered at the Irish Embassy in Bonn at his request, he ceased to be an Australian citizen.
Mr Grant refuted Ms Germov’s contention that Carlo Passerini had never renounced his Australian citizenship. He argued that the Tribunal could be satisfied on the evidence that Carlo Passerini in 1972 was of full age and of full capacity, and had whilst outside Australia, by a voluntary and formal act, acquired Italian citizenship, referring the Tribunal to the excerpt of the deed from the Municipality of Trieste which stated that Carlo Passerini had declared that he renounced Australian citizenship to resume Italian citizenship. Additionally, he referred the Tribunal to the expert evidence of Professor Caravita di Toritto, where he advised:
… according to the Italian rules on citizenship he would have had to make a statement personally before the civil registrar of the municipality in which he resided or intended to establish his residency and that statement should have been entered in the citizenship registers by the same registrar.
Mr Grant refuted Ms Germov’s contention that Carlo and Vivien Passerini had never lost their Italian citizenship, arguing that the only evidence of Vivien Passerini’s Italian citizenship was her registration of Italian citizenship on 15 December 1972 derived from her father when he resumed his Italian citizenship. He argued in closing submission that the Tribunal could not rely upon the evidence of Professor Caravita di Toritto to infer Vivien Passerini had dual citizenship as he had not been asked to provide such expert evidence. Professor Caravita di Toritto’s expert evidence indicated that in accordance with art 8 of Law 555/1912, when Carlo Passerini acquired Australian citizenship, he lost his Italian citizenship as would any of his minor children who resided with him. Mr Grant again asserted that the only evidentiary proof of Vivien Passerini’s Italian citizenship the Tribunal could rely on was the Certificate of Citizenship from the Mayor of Trieste which certified that Vivien Passerini born in Melbourne in December 1956: was registered here as an Italian citizen on 15 December 1972.
Mr Grant contended that statute requires a purpose and the purpose of section 17 of the 1948 Act must necessarily be distinct from section 18; that the meaning of “acquired” in section 17 was that of its ordinary dictionary meaning and as such it gave rise to a wide ambit inclusive of resuming or acquiring citizenship. Mr Grant refuted Ms Germov’s assertion that there was a distinction between acquisition or resumption of citizenship, contending that it made no difference whether Carlo Passerini was acquiring or resuming his Italian citizenship. He asserted that the word “acquire” in section 17 provided a general ambit to encompass any act of acquiring citizenship outside of Australia, and that it envisaged all manner and modes by which an individual gained citizenship of another country, therefore losing their Australian citizenship.
When the Tribunal asked what the evidentiary value of the Applicants’ registration of Australian citizenship by descent issued in 1988 was, Mr Grant contended that the issue of Australian citizenship by descent to the Applicants in 1988 was a mistake.
Mr Grant refuted Ms Germov’s assertion that Parliament had intended that an Australian born child would not be deprived of Australian citizenship if one parent continued to be an Australian citizen. Ms Germov noted the Parliament was protective of Australian citizenship and that the Australian Citizenship Amendment Act 1984 amended section 23 of the 1948 Act to provide that an Australian child would continue to be an Australian citizen if they had one parent who had Australian citizenship.
Mr Grant rejected the notion that the loss of Australian citizenship could only be achieved by a formal renunciation of one’s citizenship as accepted by the Minister, as this was not required as set out in section 17 of the 1948 Act.
CONSIDERATION
If the Tribunal were to make a merits based decision on the facts of this case alone, not taking into account the confines of the legislation as it stood in 1972, then it would be easy to determine that the Applicants had a parent who was an Australian citizen at the time of their birth. The Tribunal concurred with Respondent’s expert witness that “as citizenship is one of the inviolable and most personal human rights, renunciation had to be made personally and voluntarily in order to be valid” and determines that at no stage did Vivien Passerini renounce her Australian citizenship. Indeed, Vivien Passerini’s Australian citizenship was recognised by the Australian government by issuance of passports and citizenship by descent for her children up until 1992 when inexplicably they then determined this had been a mistake and she had apparently lost her citizenship in 1972, a fact of which she was never appraised. The Tribunal would have simply taken into account the fact Carlo Passerini did not renounce his Australian citizenship in writing, that Nerina Passerini never lost her Australian citizenship and that Vivien Passerini had a right to Italian citizenship from birth. Sadly, these merits facts alone cannot override the gender and Anglo bias of the 1948 Act and the detrimental actions of the Department in continuing to recognise Vivien’s citizenship until 1992. The Tribunal also notes this situation could have been avoided as at the age of 21 in accordance with section 23(3) of the 1948 Act, Vivien Passerini could have sought to have her Australian citizenship reinstated, had she been informed that she had lost her Australian citizenship.
This matter is not straightforward. It requires the Tribunal to consider the implications of a 1912 Italian statute on actions taken 48 years ago by Mr Carlo Passerini, the maternal grandfather of the applicants. That 1912 statute has, according to the expert opinion of Professor Cavarita de Toritto, been significantly amended during that time, including to remove the ius sanguinis principle on which it operated after the Italian High Court found this was discriminatory and unconstitutional. The Tribunal must also consider the 1948 Act at a point in time in 1972. That 1948 Act was also significantly amended over its legislative life until, in 2007, it was wholly repealed and replaced by the current Australian citizenship legislative regime. Apart from the effect of the statutes, the Tribunal also notes the backdrop of other considerations including the significant nature of the conferral of Australian citizenship, and the important principle that the conditions of Australian citizenship are governed by Australian law, not the law of foreign countries.
The Tribunal notes, with regret, that the death of Mr Carlo Passerini in 2019 means that his personal knowledge of the nature of his actions in 1972 are not obtainable and cannot be tested in questioning. The Respondent’s argument is that the action of Mr Carlo Passerini satisfies the provisions of section 17 of the 1948 Act, which encompasses “Loss of citizenship on acquisition of another nationality” as it was in force at that time and, by extension under section 23 of the 1948 Act at that time, Ms Vivien Passerini lost her Australian citizenship as a consequence of her father’s actions. The Applicant’s argument is that the Tribunal should instead consider the contents of section 18 of the 1948 Act which encompasses “Renunciation of citizenship.”
The Tribunal is satisfied that the preferable approach in this matter is to consider whether Mr Carlo Passerini’s actions in 1972 fulfilled the necessary requirements under section 18 of the 1948 Act, not whether those actions satisfied section 17. The reason for this is twofold. Professor Caravita de Toritto made clear in his expert written opinion that resumption of Italian citizenship by an Italian-born person who had subsequently become a naturalised citizen of another country is, in Italian law, not a matter of discretion. It may therefore be accurately described as an entitlement for a person who fulfils Mr Carlo Passerini’s circumstances. It is clear to the Tribunal that there a distinction between ‘resumption’ and ‘acquisition’, in this particular circumstance.
The Tribunal does not accept, in these circumstances, that it is sufficient to say that
Mr Passerini simply ‘acquired’ Italian citizenship. Provided he was personally in Italy and was living in the relevant municipality for the next twelve months, he was entitled to attend the municipal registry and make this declaration of resumption. It is more accurate to say that his Italian citizenship, in the eyes of the Italian Government and Italian law, was ‘dormant’ until he made the declaration of resumption. The Tribunal accepts that in so doing the English translation of the declaration included that he ‘renounced’ his Australian citizenship, but, after careful consideration, the Tribunal finds that this Italian declaration of resumption is not sufficient to constitute renunciation in terms of Australian law.
The Tribunal notes the recent majority decision in the High Court Re Canavan; Re Ludlam; Re Waters; Re Roberts [No 2]; Re Joyce; Re Nash; Re Xenophon (2017) 263 CLR 284 (Re Canavan) where their Honours found it was not sufficient to simply pledge allegiance to Australia to lose their former citizenship but required an action under that law to denounce their citizenship. Whilst this decision was in respect of the individual’s right to stand for Parliament in accordance with section 44 of the Australian Constitution, it does raise some interesting questions about what is required for an individual to renounce their citizenship of any nationality. In this case Carlo Passerini needed to follow the provisions of the Australian law and it has been conceded he never renounced his Australian citizenship. Their Honours found at [63]-[68]:
Particular reference may be made here to the decision in Sykes v Cleary in relation to the second and third respondents, Mr Delacretaz and Mr Kardamitsis, respectively. Mr Delacretaz, who had been born in Switzerland and was a Swiss citizen from that time, had lived in Australia for more than 40 years before the date for nomination for election to the House of Representatives, and was naturalised as an Australian citizen nearly 32 years before that date. When he was naturalised he renounced all allegiance to any sovereign or state of whom or of which he was a subject or citizen. Mr Kardamitsis had been born in Greece and from the time of his birth was a Greek citizen. He had lived in Australia for more than 20 years before the date of nomination and he was naturalised more than 17 years before that date. At his naturalisation, he likewise renounced all other allegiance.
A majority (Mason CJ, Brennan, Dawson, Toohey and McHugh JJ) held that Mr Delacretaz was disqualified by s 44(i) because, as the plurality said, he:
"omitted to make a demand for release from Swiss citizenship which would have been granted automatically as he has no residence in Switzerland and has been an Australian citizen for thirty-two years. Because he has failed to make such a demand, it cannot be said that he has taken reasonable steps to divest himself of Swiss citizenship and the rights and privileges of such a citizen."
The plurality said that Mr Kardamitsis was disqualified by s 44(i) because:
"in the absence of an application for the exercise of the discretion [of the Greek Minister] in favour of releasing [him] from his Greek citizenship, it cannot be said that he has taken reasonable steps to divest himself of Greek citizenship and the rights and privileges of such a citizen."
Deane and Gaudron JJ, in separate judgments, would have held that the renunciation of any foreign allegiance at the naturalisation ceremonies of Mr Delacretaz and Mr Kardamitsis was sufficient to take each of them out of the disqualification in s 44(i). It is evident that this view did not commend itself to the other five Justices, who proceeded on the basis that a unilateral renunciation was not sufficient to terminate the status of citizenship under the foreign law.
…
The plurality in Sykes v Cleary said that the steps reasonably available to a candidate to free himself or herself from the ties of foreign citizenship depend on "the situation of the individual, the requirements of the foreign law and the extent of the connexion between the individual and the foreign State". The circumstance that Mr Kardamitsis had participated in a naturalisation ceremony in which he had expressly renounced his foreign allegiance was not sufficient to justify the conclusion that he had taken reasonable steps to divest himself of his foreign citizenship because under the foreign law he could have applied for the favourable exercise of a discretion by the appropriate Minister of the Greek government to release him from his citizenship. The application for the favourable exercise of the discretion was a step reasonably open to him.
The Parliament, in making a distinction between sections 17 and 18 of the 1948 Act, clearly intended that where an Australian citizen took up another foreign citizenship and renounced their Australian citizenship, he or she may lodge with the Minister (under section 18(1)) a declaration in the prescribed form renouncing that person’s Australian citizenship. The Respondent was unable to furnish the Tribunal with any such declaration. Had the Respondent been able to do so, the intention of the late Mr Carlo Passerini would have been clear. In the absence of this, the Tribunal must look at the available evidence.
The Tribunal notes the Court’s various interpretations of section 17 of the 1948 Act as outlined in Professor Rubenstein’s text Australian Citizenship Law (2nd edition) where she noted:
For instance, Gaudron J states (at [51]) that the Parliament's power to legislate regarding deprivation of membership of the Australian community “can only be exercised by reference to some change in the relationship between the individual and the community”. Whether taking up another citizenship would fall properly within that definition is questionable.
In Kenny v Minister for Immigration and Ethnic Affairs (1993) 42 FCR 330 at 339, Gummow J stated that “[t]he 'stern rule' of the common law was that a natural born subject could not divest himself of that status by his own unilateral act.” However, the 2007 Act, like its 1948 predecessor, does enable citizens to renounce their Australian citizenship.
The Federal Court commented on the grounds for loss of citizenship under the 1948 Act in Dvorani v Minister for Immigration and Multicultural Affairs (2000) 31 AAR 536. The court highlighted (at 541) that there was a common element of choice, voluntariness or intentional action in obtaining another citizenship, in renouncing one's citizenship, or in serving in another country's army. The court noted (at 542) that “the legislature was concerned with the nature of the relationship between the Australian community and the individual, which defines the ways in which citizenship may be lost or taken away”.
The Tribunal accepts the evidence that Ms Vivien Passerini did not have any knowledge prior to 2008 (the date of the extract from the Trieste Municipality registry) that the resumption act of her father in 1972 may affect her own Australian citizenship. Ms Vivien Passerini is Australian-born and received her citizenship by that fact under section 10 of the 1948 Act. She travelled to Italy as a minor on an Australian passport in 1972. She also renewed her Australian passport on three occasions in 1978, 1986 and 1998. Section 7(1) of the Passports Act 1938, then in force, only gave her this entitlement as an Australian citizen. Ms Passerini not only returned to her country of birth as an adult, but also lived and worked in Australia at the Royal Melbourne Hospital. It is not evident to the Tribunal what precipitated the Department to decide that Ms Passerini had lost her Australian citizenship, and to decide that she had lost it decades before in spite of the issuance of passports and the registration of both Applicants as Australian citizens by descent. It is inadequate, in the Tribunal’s mind, for the Respondent to submit, simply, that these several actions by the Australian Government over a period of some 20 years should be dismissed as ‘a mistake’.

The Tribunal finds that at that time of Vivien Passerini’s birth, her father was an Italian citizen and therefore she acquired Italian citizenship as a birth right, relying on the expert evidence of Professor Caravita di Toritto which clearly enunciated she had a right to Italian citizenship from birth:
The guiding principle of Law 555 /1912 was the ius sanguinis concept, meaning that Italian citizenship is awarded to a child whose father is an Italian citizen, regardless of the place of birth. The focus of the law was a blood bond between father and child, which resulted in the recognition of Italian citizenship by birth in case the father was an Italian citizen.
Whilst the Tribunal accepted there was documentary evidence which demonstrated she had derived her Italian citizenship in 1972 when her father resumed his Italian citizenship by voluntarily and formally renouncing his Australian citizenship, the Tribunal found this did not extinguish her birth right to Italian citizenship. The Tribunal refers to the High Court determination in Re Canavan where their Honours found at [80]:
The evidence of Italian citizenship law is contained in the joint report of Maurizio Delfino and Professor Beniamino Caravita di Toritto ("the joint report"), both of whom are practising Italian lawyers. From the joint report it emerges that Senator Canavan's status, if any, as an Italian citizen does not arise from any step taken by his mother in 2006 but rather from the circumstance that his maternal grandmother had not renounced her Italian citizenship at the date of his mother's birth. At the time of Senator Canavan's mother's birth the fact that her mother was an Italian citizen did not confer Italian citizenship on her. Under a law enacted in 1912 ("the 1912 law") only the child of a father who was an Italian citizen became an Italian citizen by birth. Senator Canavan's mother was born in October 1955, a month after her father was naturalised as an Australian citizen. An Italian citizen who acquired the citizenship of a foreign country and who took up residence in the foreign country automatically lost his or her Italian citizenship. At the time of her birth Senator Canavan's mother was an Australian citizen and only an Australian citizen. When Senator Canavan was born in 1980 he was an Australian citizen and only an Australian citizen.
The joint report explains that in 1983 the Italian Constitutional Court declared provisions of the 1912 law unconstitutional to the extent that they operated to deny equal treatment to male and female Italians. From the date of the Constitutional Court's decision and with effect from the date the new Italian Constitution came into force (1 January 1948), Italian citizenship passed to a child either of whose parents was an Italian citizen. The effect of the decision was that Senator Canavan's mother became an Italian citizen by birth and, on one view, Senator Canavan became an Italian citizen "retroactively" to the date of his birth.
The Tribunal is mindful of Mr Grant’s caution about relying upon submissions in respect of dual citizenship, as he had asserted Professor Caravita di Toritto had not been asked to address this question; but the Tribunal, noting the Professor had been requested to provide his expert opinion on the question of whether an Italian citizen could hold dual citizenship on 26 January 1962 and in 1972, relied upon Professor Caravita di Toritto’s expert opinion as he is undoubtfully an expert in Italian law. The Tribunal therefore finds that Vivien Passerini was entitled to be a dual Australian/Italian citizen at the time as she fell under the only case where Italian law tolerated dual citizenship:
Art. 7 of Law 555/192 provided for the only exemption to this rule establishing that: “save special provisions agreed in international treaties, the Italian citizen born and resident in a foreign country, where he/she is considered a citizen by birth, maintains the Italian citizenship, but, once he/she reaches an adult age he is entitled to renounce it”.
Said provision allowed the child of an Italian citizen, born and resident in a foreign country which had conferred to him local citizenship, to retain the Italian citizenship acquired by birth from the Italian father, and after 1983, also the Italian mother, even if the parents happened to lose Italian citizenship. Once of age, the child was entitled to renounce Italian citizenship.
In light of the above, in 1962 Italian law allowed an individual born abroad (in particular in Australia) from an Italian father, or after 1983, an Italian mother, to simultaneously hold Italian citizenship (received by birth from an Italian parent) and foreign citizenship (i.e. citizenship of the country where they were born).
The was no dispute that under the 1948 Act, Vivien Passerini acquired Australian citizenship at birth; nor was there dispute that Australia allowed individuals to be dual citizens under the 1948 Act.
The Tribunal finds that Vivien Passerini was an Italian citizen by birth. She did not derive her Italian citizenship in 1972 when her father resumed his Italian citizenship.
The preferable conclusion that the Tribunal has come to is that the actions of Mr Carlo Passerini, a naturalised Australian citizen, in December 1972 did not fulfil the requirements of the Australian law at the time to constitute a renunciation of his Australian citizenship. The Tribunal does not think it is desirable from a public policy perspective for the Tribunal to try and delve into the wording of declarations under a foreign statute and glean what impact such declarations may have on an Australian citizen’s status when there were at the time clear, stand-alone, provisions in the 1948 Act providing for a person to renounce citizenship.
The Tribunal finds that Mr Carlo Passerini’s actions before Trieste Municipality officers did not fulfil the requirements of the Australian law at the time. The consequence is that his Australian citizenship was not renounced. As it is not in dispute that Mrs Nerina Passerini became an Australian citizen in 1962 and remains so today, the consequence of this finding is that Ms Vivien Passerini’s Australian citizenship was unaffected by the administrative action her father took in 1972, as both her parents remained Australian citizens, her father for the rest of his life.
Furthermore, the Tribunal finds that Ms Vivien Passerini had never lost her Australian citizenship as she did not derive her Italian citizenship from her father in 1972 but by birth, as her father was an Italian citizen at the time of her birth.
The Tribunal, having found Vivien Passerini was an Australian citizen at the time of her children’s birth, determines that the Applicants, Marco and Oscar Mocenigo, are entitled to become citizens by descent in accordance with section 16(2)(a) of the Act.
DECISION
The Tribunal sets aside the decisions of the delegate of the Respondent dated
13 November 2018, which refused the Applicants’ application for Australian citizenship.
The Tribunal remits the matters to the Respondent for reconsideration in accordance with the direction that the Applicants are eligible to become a Australian citizens as they had a parent, Ms Vivien Passerini, who was an Australian citizen at the time of their birth, pursuant to section 16(2)(a) of the Australian Citizenship Act 2007 (Cth).

I certify that the preceding 71 (seventy one) paragraphs are a true copy of the reasons for the decision herein of Ms Anna Burke AO Member.

..[sgd].......................................................
Associate
Dated: 17 September 2020

Date of hearing:
18 May 2020

Counsel for the Applicant: Ms Roz Germov

Solicitors for the Applicant: Ms Julia Ouzas, Maragos Ouzas Lawyers

Counsel for the Respondent: Mr Jamie Grant

Solicitors for the Respondent: Ms Inshani Ward, Sparke Helmore

Date of hearing:	18 May 2020
Counsel for the Applicant:	Ms Roz Germov
Solicitors for the Applicant:	Ms Julia Ouzas, Maragos Ouzas Lawyers
Counsel for the Respondent:	Mr Jamie Grant
Solicitors for the Respondent:	Ms Inshani Ward, Sparke Helmore