Paraskevopoulou and Department of Immigration and Multicultural Affairs
[2001] AATA 244
•28 March 2001
DECISION AND REASONS FOR DECISION [2001] AATA 244
ADMINISTRATIVE APPEALS TRIBUNAL )
) No N1999/1681
GENERAL ADMINISTRATIVE DIVISION )
Re Evagelia paraskevopoulou
Applicant
And DEPARTMENT OF IMMIGRATION AND MULTICULTURAL AFFAIRS
Respondent
DECISION
Tribunal Senior Member M D Allen
Date28 March 2001
PlaceSydney
Decision The decision under review is affirmed.
(Sgd) M D ALLEN
.............................................
Senior Member
CATCHWORDS
CITIZENSHIP – Application to resume citizenship under s 23AA, s 23A or s 23B. Applicant born in 1936 or 1938. Immigrated to Australia with her parents in 1949. Became an Australian citizen in 1959. Moved back to Greece permanently in 1968. Renunciation of Australian citizenship pursuant to s 18 in 1973. Application to resume Australian citizenship made and refused in 1999. Whether Applicant satisfies statutory preconditions in s 23AA, s 23A or s 23B.
Australian Citizenship Act 1948 – s18, s23AA, s23A, s23B
Re Beertsen and Minister for Immigration and Multicultural Affairs 45 ALD 726
Desira and Minister for Immigration and Multicultural Affairs 30 AAR 457
REASONS FOR DECISION
28 March 2001 Senior Member M D Allen
By application made 28 September 1999 the Applicant sought review of a decision by a delegate of the Minister for Immigration and Multicultural Affairs made 19 August 1999. The reviewable decision refused Ms Paraskevopoulou's application to resume Australian citizenship under subsections 23AA, 23A or 23B of the Australian Citizenship Act 1948 ("the Act").
At the request of the parties, the Tribunal agreed to deal with the legal issues as to the construction of subsections 23AA, 23A or 23B of the Act, 'on the papers'. The Applicant, by letter dated 2 September 2000 requested that her application be decided by the Tribunal without the Tribunal holding a hearing and by consideration of the information she has provided to the Tribunal in her correspondence. The Respondent consented to that proposal by facsimile dated 20 November 2000. The Tribunal had before it the material lodged by the Respondent pursuant to section 37 of the Administrative Appeals Tribunal Act 1975, written submissions from the Applicant and the Statement of Facts and Contentions lodged by the Respondent on 27 November 2000.
The Applicant was born on 9 September 1936 (T11 p45) or 9 September 1938 (T6, T8 and T14) in Piraues, Greece. The Applicant stated that she immigrated to Australia with her parents on 24 January 1949 and she became a naturalised Australian on 14 May 1959 (T14). When aged either 21 or 23 years, document T14 reveals she herself took an oath of citizenship.
The Applicant expressed her desire to renounce her Australian Citizenship in a letter dated November 22 1972 (T4 p36) and addressed to the Secretary to the Department of Immigration (as the Respondent was then called):
"In 1968, …, I came back to Greece permanently – having the No.353/1968 Greek passport … - and do not wish to have any more ties with Australia. … I would be willing to renounce my naturalization (sic) upon oath, if necessary."
On 28 February 1973, the Applicant formally renounced her Australian Citizenship pursuant to section 18 of the Act (as it then was) and the Declaration of Renunciation was registered with the Department of Immigration, Canberra, Australian Capital Territory on 10 April 1973 (T10 p43).
On 1 March 1973, a delegate of the Australian Embassy in Athens wrote to the Respondent:
"Because of the mental instability of Miss PARAS [meaning the Applicant] her attorney, Mr. Thomopoulos, has requested that the acknowledgement (sic) of the renunciation of citizenship be sent to him at the address indicated on previous correspondence."
The Respondent sent a photocopy to the Australian Embassy in Athens to forward to the Applicant's attorney on 11 April 1973.
On 11 February 1998, the Applicant lodged with the Australian Embassy in Athens a form titled "Declaration of desire to resume Australian Citizenship under section 23AA, 23A or 23B" (T11). Question 9 required the Applicant to tick an answer (out of a possible 3) that best described her situation and to provide details. The Applicant ticked the box "I would have suffered significant hardship or detriment at the time if I had not done the act or thing that resulted in my ceasing to be an Australian citizen". She provided the following details:
"I resigned because of fear after seeing my mother's tragic death – the continued hardship and war of nerves. I do not get on well at all with the Greek authorities who together with the church and my mother's relatives never wanted me to be a person with human rights."
When asked at question 13 whether she had maintained a close and continuing association with Australia, the Applicant answered:
"The person closest to me is my father who has kept the Australian citizenship to this day. For more details concerning friendships please read my letter."
On 19 August 1999 the Applicant was informed that her application to resume Australian citizenship was refused. The Respondent gave the following reasons (T17 pp91-92):
"ReasonsResumption of Australian citizenship under section 23AA is only possible if, inter alia, 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 the sole or dominant purpose of which and 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.
Ms Paraskevopoulou did not do any act or thing to acquire the citizenship of another country, she already had Greek citizenship. When she renounced her Australian citizenship under section 18 of the Act on 10 April 1973, it was to divest herself of Australian citizenship. She was able to do this because she held that other Citizenship (Greek). Therefore, she does not meet the requirements of section 23AA of the Act and her application is refused.
As Ms Paraskevopoulou did not cease to be an Australian citizenship under section 20 of the Act, her application for resumption of Australian citizenship under section 23A of the Act is refused.
As Ms Paraskevopoulou did not cease to be an Australian citizenship under section 23 of the Act, her application for resumption of Australian citizenship under section 23B of the Act is refused."
The Applicant renounced her Australian Citizenship in 1973 pursuant to section 18 of the Citizenship Act 1948-1969 (as the Act was then called). Section 18(1) reads:
"18. (1) Where -
(a)an Australian citizen is a national or citizenship of a country other than Australia; and
(b)that person's nationality or citizenship was acquired (whether before, on or after the twenty-sixth day of January, One thousand nine hundred and forty-nine) at birth, while not of full age or by reason of marriage, he may at any time after attaining the age of twenty-one years or after the marriage, make a declaration renouncing his Australian citizenship."
Sections 23AA, 23A and 23B of the Act state where a person may resume citizenship which are lost in certain circumstances. Section 23AA (1)(a) of the Act states:
(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;"
The question before the Tribunal is whether the Applicant has done a "voluntary and formal act" or "any act or thing" which was to "acquire" the nationality or citizenship of a foreign country.
Deputy President McMahon in Re Beertsen and Minister for Immigration and Multicultural Affairs 45 ALD 726 at 728 explained the term "voluntary and formal act":
"The very use of the unusual term 'voluntary and formal act' indicates a requirement for a conscious, knowing, deliberate act of a person with full capacity to participate in the process and to be cognisant of its consequences."
Senior Member Dwyer in Desira and Minister for Immigration and Multicultural Affairs 30 AAR 457 looked at the meaning of "acquire". She stated at page 462:
"The Tribunal in Re Allan and Department of Foreign Affairs (1986) 5 AAR 432 considered the meaning of the word 'acquires' in the context of acquiring citizenship of a foreign country. … Mr Allan, who was born in Australia, but had a grandmother born in Ireland, came within the categories of persons declared to be Irish citizens …, although it did not confer Irish citizenship unless his birth was registered in accordance with … the Act. In 1979 Mr Allan registered his birth. … Mr Allan submitted that his birth registration constituted 'activation' rather than the acquisition of citizenship. The Tribunal found that he acquired Irish citizenship by the act of making the request for registration and thereby ceased to be an Australian Citizen.
The Tribunal in Re Allan referred to The Shorter Oxford English Dictionary which gave two meanings of the word 'acquire'. …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'."
The above implies that the Applicant would have had to actively do something to gain her Greek citizenship. But from the Reasons, supra of the Respondent, the Applicant already had Greek citizenship. One cannot gain a citizenship when one already has possession of it.
That being so the Applicant's claim for the resumption of Australian citizenship pursuant to s23AA has not been made out and the decision under review will be affirmed.
Section 23A of the Act deals with persons who ceased to be Australian citizens under s20 – Loss of citizenship by residence outside Australia of the Nationality and Citizenship Act 1948.
Section 23B of the Act deals with persons who ceased to be Australian citizens under s23 – Children of persons who lose or are deprived of citizenship.
As the Applicant renounced her citizenship pursuant to s18 of the Act (as it then was), sections 23A and 23B are not applicable.
Therefore, the decision under review is affirmed.
I certify that the 21 preceding paragraphs are a true copy of the reasons for the decision herein of:
Senior Member M D Allen
Signed: .....................................................................................
AssociateDate of Hearing The matter was decided on the papers at the request of the parties.
Date of Decision 28 March 2001
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