Peros and Minister for Immigration and Citizenship

[2008] AATA 432

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2008] AATA 432

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No 2008/1017

GENERAL ADMINISTRATIVE DIVISION		)
Re		MARIJA PEROS

Applicant

And MINISTER FOR IMMIGRATION AND CITIZENSHIP

Respondent

DECISION

Tribunal Mr A Sweidan, Senior Member

Date23 May 2008

PlacePerth

Decision The Tribunal affirms the decision under review.

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

Senior Member

CATCHWORDS

Australian citizenship – application for resumption – whether applicant became a British subject by naturalization – whether applicant was ever an Australian citizen.

LEGISLATION

Australian Citizenship Act 2007 s.29,

Nationality Act 1920 s.10

Nationality and Citizenship Act 1948 s.25

CASES

Lappas v Department of Immigration and Multicultural Affairs [1999] AATA 380

Singh v Commonwealth (2004) 222 CLR 322

REASONS FOR DECISION

23 May 2008 Mr A Sweidan, Senior Member    

Background

1.      This is an application by Marija Peros (the applicant) for review of a decision made by a delegate of the respondent on 25 October 2007 refusing an application to resume Australian citizenship pursuant to section 29 of the Australian Citizenship Act 2007 (the Act).

Facts

2.      The applicant was born on 2 January 1924 in Igrane in what was then Yugoslavia. She has provided a birth certificate in the name of Marija Talijancic identifying her father as Vice Talijancic  and her mother as Milica Talijancic.

3.      The applicant has also provided a marriage certificate dated 12 July 1920 which demonstrates that Vice Talijancic (born 5 August 1896 in Igrane) married Milica Mihalejvic (born 13 March 1895 in Igrane).

4.      On 18 October 1947 the applicant married Mile Peros Jozo.

5.      On 23 January 1930 Vice Talijancic made an application for a Certificate of Naturalisation. Paragraph 2 of that application stated as follows:

I desire that the names of such of my children mentioned in the Statutory Declaration herewith as are under the age of 21 years and are residing in Australia with me shall be included in my Certificate of Naturalisation.

6.      Vice Talijancic provided a statutory declaration dated 2 January 1930 in support of his application for a Certificate of Naturalisation (T6, pp29-30). In that statutory declaration he identified his date of birth as 5 August 1896 and his place of birth as “Igrane in the Dalmatia in the country of Yugoslavia”.

7.      Vice Talijancic stated that he arrived in Australia from Yugoslavia on 25 July 1924.

8.      At paragraph 11 of his statutory declaration Vice Talijancic stated that he was “unmarried”.

9.      Paragraph 12 of the statutory declaration provides for an applicant to identify any children he wished to be included on his certificate of Naturalisation. Vice Talijancic did not identify any such children.

10.     On 28 July 1930 Vice Talijancic renounced his Yugoslavian nationality and on 18 August 1930 he received a Certificate of Naturalisation. The Certificate was numbered A.A. 6447.

Legislation and Policy      

11.     The relevant criteria to be satisfied for the applicant to resume Australian citizenship is contained in section 29 of the Act which provides:

Application and eligibility for resuming citizenship

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

Cessation under this Act

(2)   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 33 (about renunciation) in order to acquire or retain the nationality or citizenship of a foreign country or to avoid suffering significant hardship or detriment; or

(ii)section 36 (about children); 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.

(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.

12.     It is common ground that the applicant has never been recognised as an Australian citizen. Her application, then, is not so much about resumption of Australian citizenship but more about whether she has ever held Australian citizenship.

Historical Legislation and Policy           

13.     At the time Vice Talijancic made his application for a Certificate of Naturalisation, the relevant Act was the Nationality Act 1920. Section 10 of that Act provided as follows:

10.(1)       Where an alien obtains a certificate of naturalisation, the Governor-General may, if he thinks fit, on the application of that alien, include in the certificate the name of any child of the alien born before the date of the certificate and being a minor, and that child shall thereupon, if not already a British subject, become a British subject; but any such child may, within one year after attaining his majority, make a declaration of alienage, and shall thereupon cease to be a British subject.

(2)The Governor-General may, in his absolute discretion in any special case in which he thinks fit, grant a certificate of naturalisation to any minor, whether or not the conditions required by this Act have been complied with.

(3)Except as provided by this Act, a certificate of naturalisation shall not be granted to any person under disability.

14.     The Policy in relation to the acquisition of British subject status by children of persons naturalised is identified in the document entitled Effect of Naturalisation of Father Upon Children Under Commonwealth Law contained in the Booklet of Materials filed by the respondent. It relevantly provides as follows:

The Nationality Act 1920 came into force on 1.1.1921 and repealed the Naturalisation Act. The Act was amended from time to time but the provision of power to include children did not vary.

During this period the names of minor children affected by the father’s naturalisation were included on the Certificate.

As a matter of policy only those children (under age of 21 years) who were resident in Australia at the time of father’s naturalisation were then included on his certificate. Those children over school leaving age required to have an adequate knowledge of English.

It is important to note that only the children whose names were actually included on certificates during this period were naturalised.

The names of minor children could also be endorsed upon father’s certificate (or mother’s if a widow) after the date of issue of the certificate. This applied to children who arrived here after father’s naturalisation.

15.     Thus from 1 January 1921 only children whose names actually appeared on Certificates issued after that date were naturalised. Furthermore, as a matter of policy such children had to be resident in Australia before their names could be included.

16.     Annex 13.3 of the Australian Citizenship Instructions issued in 1986 (provided in the respondent’s booklet of materials) identifies the types and attributes of the various certificates issued since Federation. Below are types of certificates of naturalisation issued pursuant to the Nationality Act between 1920 and 1926:

Series	Dates of Issue (inclusive)	To Whom Issued
AA	1/1/21 till 31/3/37	Single persons and divorcees, widows and widowers without children affected by naturalisation.
BB	1/1/21 till 31/3/37	Married persons without children affected by naturalisation.
CC	1/1/21 till 31/3/37	Married persons with children to be included.

17. The acquisition of automatic Australian citizenship by British subjects was effected by Section 25 of the Nationality and Citizenship Act 1948 which relevantly provided:

25 – (1)    A person who was a British subject immediately prior to the date of commencement of this Act shall, on that date, become an Australian citizen if –

(a)he was born in Australia and would have been an Australian citizen if section 10 of this Act had been in force at the time of his birth;

(b)he was born in New Guinea;

(c)he was a person naturalised in Australia; or

(d)he had been, immediately prior to the date of commencement of this Act, ordinarily resident in Australia or New Guinea, or partly in Australia and partly in New Guinea, for a period of at least five years.

…

(3)A person born outside Australia and New Guinea –

(a)who was a British subject immediately prior to the date of commencement of this Act;

(b)whose father was a person to whom paragraph (a), (b) or (c) of sub-section (1) of this section applies; and

(c)who enters or entered Australia,

shall become an Australian citizen on that date or on the date upon which he enters Australia, whichever is the later.

…

(8)In this section –

…

“person naturalised in Australia” means –

a person to whom a certificate of naturalisation was granted in Australia or a Territory;

a person who, by reason of the inclusion of his name in any such certificate, was deemed to be a person to whom a certificate of naturalisation was granted;

a person who by virtue of any law in force in Australia or a Territory, was deemed to be a naturalised British subject by reason of his residence with his father or mother; or

a married woman who, by virtue of any such law, made a declaration that she desired to acquire British nationality.

The Lappas Decision

18.     The Tribunal previously looked at a similar scenario in the decision of Lappas v Department of Immigration and Multicultural Affairs [1999] AATA 380. The facts relating to that matter were as follows:

[5] The applicants claim for registration of Australian citizenship is based on the argument that their father Basil (Vassilios) Lappas (“Basil”) was naturalised as a British subject at the same time as their grandfather Arthur Thomas Lappas (“Arthur”), and later became an Australian citizen. They claim citizenship by descent under s.10C from their father Basil. The applicants do not claim their mother is an Australian citizen.

…

[8]    The facts involve three generations of the Lappas family, the applicants, their father Basil and their grandfather Arthur. On 23 September 1923 Arthur arrived in Australia. In a statutory declaration made on 27 July 1929, relating to his application for naturalisation, Arthur named his wife and five children (including Basil, then 11 years of age) who were all living in Albania.

[9]    On 23 August 1929, Arthur lodged an application for a Certificate of Naturalisation. The form included a request (para 2) that any children named in the statutory declaration who are under the age of 21 years and residing in Australia be included in his Certificate of Naturalisation.

[10]  On 29 October 1929 Arthur renounced his Albanian nationality. On 18 November 1929 Certificate of Naturalisation No BB4298 was issued to Arthur. On 3 December 1929 he acknowledged receipt of the certificate. Arthur died in Australia in 1952.

[11]  In April 1995 Basil presented a copy of Arthur’s naturalisation application to the Australian Embassy in Athens and inquired about his (Basil’s) citizenship status.

[12]  In June 1995 Basil lodged an application for a declaratory certificate of Australian citizenship at the Australian Embassy in Athens. On 3 August 1995, this application was refused at the Australian Embassy Athens.

[13]  On 17 June 1996 an application for a declaratory certificate of Australian citizenship was lodged in Melbourne on behalf of Vassilios Lappas and a declaratory certificate of Australian citizenship was issued for Basil Lappas on 27 June 1996. The document, headed “Evidence of Australian Citizenship” declares that Basil Lappas born on 15 October 1918 is an Australian citizen and that citizenship was acquired on 19 October 1929.

…

[16]  The certificate “Evidence of Australian Citizenship” issued to Basil was cancelled on 22 May 1997. mail advice of the cancellation was forwarded from the Australian Embassy Athens to Basil at his son’s Alkis address informing him that the  certificate had been issued in error and asking that it be returned.

19.     The Tribunal in Lappas referred to (and appears to have accepted) an internal minute from Andy Kyburz of the respondent’s Citizenship Section which explained the policy regarding naturalisation and children overseas during the late 1920’s. That minute is contained in the respondent’s booklet of materials and relevantly states:

The policy in relation to the acquisition of British subject status by children of persons naturalised at that time was – provided that children were born before the date of the certificate issued to their father, they could become a British subject by inclusion on that certificate. Only children in Australia were included on the certificate. In accordance with section 10(1), only children included in the certificate became British subjects.

It was also the policy at the time that “BB” series Certificates of Naturalisation were issued only to principal applicants i.e. no children were included on the certificate at the time of issue. Where children were included on a parent’s application and were eligible for inclusion on the parent’s Certificate of Naturalisation, the parent was issued with a “CC” series certificate.

As Basil Lappas was not included on his father’s Certificate of Naturalisation (which would have been because he was not in Australia at the time), he did not become a British subject.

Consequently, as only British subjects acquired Australian citizenship automatically under section 25 of the Australian Citizenship Act 1948, in most cases when this came into effect on 26 January 1949 – although other requirements were also necessary – Basil Lappas did not acquire Australian citizenship under these provisions.

20.     The Tribunal concluded that Basil Lappas was not an Australian citizen and consequently his children could not be registered as Australian citizens by descent. The basis for the Tribunal’s finding that Basil Lappas was neither a British subject or an Australian citizen is set out as follows:

[21] Arthur was issued with a BB series certificate in November 1929 which did not include any of his children on the certificate. This was so because at that time his children were overseas and under the policy only children in Australia were included on the certificate. Where children were eligible for inclusion the parent was issued with a CC series certificate. If a child was included in a Certificate of Naturalisation, that child was also naturalised.

[22] Arthur’s son, Basil lived in Albania until 1990 and since then has lived in Greece. He has never lived in Australia. His name was never endorsed on his father’s certificate consequently he was not naturalised as a British subject. Arthur became an Australian citizen on 26 January 1949 with the commencement of the Nationality and Citizenship Act 1948. Section 25, a transitional provision contained in the Nationality and Citizenship Act 1948-50, had the effect of conferring Australian citizenship under certain circumstances, relevantly in Arthur’s case, he being a person naturalised in Australia who was a British subject immediately prior to the date of commencement of that Act.

Respondent’s Contentions             

21.     The respondent concedes that the applicant is the daughter of Vice Talijancic and that Vice Talijancic became a British subject and subsequently an Australian citizen.

22.     However, the respondent contends that the applicant was never granted naturalisation as a British subject and consequently never became an Australian citizen.

Applicant’s contentions

Naturalisation

23.     The applicant has referred to historical texts and writings on naturalisation laws to advance the following arguments:

(a)Naturalisation resulted in the grantee being automatically deemed as a Natural-Born British subject without any exception;

(b)the recognition of children of Naturalised Natural-Born British Subjects is automatic and indelible.

24.     The applicant contends that recognition of naturalised natural born British subjects recognised at law under a statute has always been a retrospective recognition. Accordingly, it is contended that every event occurring in Vice Talijancic’s life dating back to his birth on 5 August 1896 and including the birth of the applicant on 2 January 1924 is recognised at law as performance by a natural born British subject.

25.     The applicant contends that on 18 August 1930 (being the date Vice Talijancic was naturalised) she was recognised at law as a naturalised natural born British subject. Accordingly, the applicant contends, she became an Australian citizen under the Nationality and Citizenship Act 1948.

Tribunal’s Findings

26.     Although the Tribunal sympathises with the applicant’s desire to be recognised as an Australian citizen the Tribunal is of the view that her arguments are not well founded in law for the reasons which follow.

27.     The Tribunal is of the opinion that the applicant has misconstrued the authorities upon which she relies. The Tribunal’s view is that the reference to the two classes of natural born British subjects is a reference to those who are born within the dominion of the British Crown and those who are born outside of the dominion to parents (or at least fathers) who were natural-born subjects. The flaw in the applicant’s argument is that she contends that naturalisation leads to the status of a natural-born subject.  In the opinion of the Tribunal it does not.

28.     Secondly, the authorities to which the applicant refers arise from a period in which there were competing theories relating to concepts of “status”, “aliens” and “naturalisation”. In any event, there is a clear recognition within those authorities that there was a recognised difference between natural-born and naturalised British subjects.

29.     Thirdly, and most fundamentally, the Parliament has a clear and express power to make laws with respect to naturalisation and aliens. It has made such laws and the effects of those laws are in the Tribunal’s opinion clear and unambiguous.

30.     The Tribunal notes that the High Court has recently had cause to discuss the historical development of the laws relating to naturalisation in Singh v Commonwealth (2004) 222 CLR 322. In Singh, the majority judgment referred to Dicey, A Digest of the Law of England with reference to the Conflict of Laws (1896) at [169]:

Dicey defined “British subject” as “any person who owes permanent allegiance to the Crown”. He then divided British subjects into “natural-born” British subjects and “naturalised” British subjects, the former being those who became a British subject at the moment of birth.

31.     The distinction Dicey made between natural-born and naturalised British subjects is reinforced later. At [182] of the majority judgment their Honours cite the following from Dicey:

An alien, further, who has, under the Naturalisation Act, 1870, acquired a certificate of naturalisation ‘shall not, when within the limits of the foreign state of which he was a subject previously to obtaining his certificate of naturalisation, be deemed to be a British subject unless he has ceased to be a subject of that state in pursuance of the laws thereof, or in pursuance of a treaty to that effect’. Hence a person naturalised under the Naturalisation Act 1870, may under some circumstances be held, even by English Courts, to be an alien.”

32.     Their Honours also referred to Hall, A Treatise on International Law, 4^th ed (1895) at [183]:

The persons as to whose nationality no room for difference of opinion exists are in the main those who have been born within a state territory of parents belonging to the community, and whose connexion with their state has not been severed through any act done by it or themselves …

The persons as to whose nationality a difference of legal theory is possible are children born of the subjects of one power within the territory of another, illegitimate children born of a foreign mother, foreign women who have married a subject of the state, and persons adopted into the state community by naturalisation, or losing their nationality by emigration, and the children of such persons born before naturalisation or loss of nationality” [emphasis added].

33.     The majority in Singh found that the history demonstrated the following:

The word “aliens” may have had a fixed legal meaning in the 17^th century. (Even then the legislature had altered the rules about alienage in some respects.) By the end of the 19^th century the word did not bear the meaning it did at the time of Calvin’s Case. There had been numerous legislative interventions in the subject. But there was one feature about the use of the word that was constant: it was that the alien “belonged to another”. Often that was expressed by reference to the concept of allegiance and often it was expressed in terms that by their definitions assumed that the world could be divided into two groups. Either one was a British subject or one was an “alien”. And those groups were defined by reference to the allegiance they owed …

“Aliens”, even if had once had a fixed legal meaning, did not bear such a meaning by the end of the 19^th century. But what did remain unaltered was that “aliens” included those who owed allegiance to another sovereign power, or who, having no nationality, owed no allegiance to any sovereign power.

34.     The Tribunal finds that it is clear from the passages cited above that firstly, there was not a unified theory relating to the concepts of “status”, “aliens” and “naturalisation”. Secondly, that there was a clear distinction made between natural-born and naturalised British subjects. Thirdly, that the children of persons born before naturalisation occurred were regarded differently. Finally, that the critical issue was that those persons who owed allegiance to another sovereign power were always regarded as aliens.

35.     It is clear from the evidence that at all times the applicant has held Yugoslavian citizenship. She has never renounced that citizenship. She has never held dual citizenship. Indeed, until 4 April 2002 it would have been impossible for the applicant to have held dual Australian and Yugoslavian citizenship as this would not have been permitted by the Australian Citizenship Act 1948.

36.     In the Tribunal’s view it is also clear that naturalisation cannot be retrospective. It requires a renunciation of past allegiance and a declaration of current (and future) allegiance. Naturalisation conveys all of the rights, privileges and duties which a natural born British subject enjoys but it does not rewrite history. The Tribunal notes that there is an exchange between the Solicitor-General for Australia and the High Court in the matter of Singh v Commonwealth of Australia & Anor [2004] HCATrans5 (10 February 2004) in which the Solicitor-General expresses the nature of the naturalisation power in the Constitution as follows:

[N]aturalisation, by its nature, changes a person from an alien into a non-alien. Clearly, Commonwealth law under the naturalisation power, or under the implied de-naturalisation power, where one reverses the process, can cause the alien’s power to commence to apply or cease to apply to a particular person in much the same way as building a lighthouse may cause power to apply or cease to apply to a particular block of land and those employed in it.

37.     There is a clear and obvious relationship between naturalisation and allegiance. That relationship arises prima facie from the requirement to renounce allegiance to a former country and swear allegiance to the Queen. It is fortified in respect of minors by the ability to renounce allegiance once majority is obtained.

38.     As already noted, the applicant was born in Yugoslavia to parents who were citizens of Yugoslavia. She has at all material times resided in Yugoslavia and held Yugoslavian citizenship. She has never renounced her Yugoslavian citizenship or her allegiance to Yugoslavia. She has never sworn allegiance to Australia or to the Queen.

39.     In any event, it is clear that the Federal Parliament has the express constitutional power to make laws with respect to naturalisation and aliens. It has done so and in the Tribunal’s opinion those laws clearly deem the applicant to be an alien.

40. Parliament, under pars (xix) and (xxvii) of s51 of the Constitution, has the power to determine the legal basis by reference to which Australia deals with matters of nationality and immigration, to create and define the concept of Australian citizenship, to prescribe the conditions on which such citizenship may be acquired and lost, and to link citizenship with the right of abode (Gleeson CJ in Singh (supra) at [4].

Alienage is a status … Parliament can decide who will be treated as having that status for the purposes of Australian law and, subject to any other relevant constitutional constraints, what that status will entail.

41.     Parliament has enacted a number of laws relating to naturalisation and aliens. The laws relevant to this application are the Nationality Act 1920 and the Nationality and Citizenship Act 1948. It is the application of those laws, and not historical writings on the theoretical basis of status, alienage and naturalisation, which are determinative of this application.

Application of relevant law and policy

42.     When Vice Talijancic applied for and was granted naturalisation as a British subject in 1930 the relevant legislation was the Nationality Act 1920 which provided in section 10(1) that:

Where an alien obtains a certificate of naturalisation, the Governor-General may, if he thinks fit, on the application of that alien, include in the certificate the name of any child of the alien born before the date of the certificate and being a minor, and that child shall thereupon, if not already a British subject, become a British subject; but any such child may, within one year after attaining his majority, make a declaration of alienage, and shall thereupon cease to be a British subject.

43.     The policy document entitled Effect of Naturalisation of Father upon Children under Commonwealth Law and the advice provided by Andy Kyburz in the Minute referred to above make it clear that at that time as a matter of policy only those children who were resident in Australia at the time of the father’s naturalisation were included on the father’s certificate.

44.     It is clear that Vice Talijancic did not include the applicant on his application for a certificate of naturalisation. It is equally clear that the applicant was not resident in Australia at the time Vice Talijancic applied for a certificate of naturalisation.

45.     Vice Talijancic’s application for naturalisation was processed and approved in accordance with the above policy. He was issued an AA Series Certificate which was issued to those applicants who identified themselves as “single persons and divorcees, widows and widowers without children affected by naturalisation”.

46.     There was no error in issuing Vice Talijancic with an AA Series Certificate as he had clearly stated that he was “unmarried” and had not indicated that he wanted any children included on his certificate.

47.     Even if he had stated that he was married and identified the applicant as a child he wanted included on his certificate, the Tribunal finds that the applicant would not have been included on the certificate. The Tribunal notes that in the Lappas matter the father did include his children on his application but was granted a BB Series Certificate which did not include his children on the certificate. This was in accordance with the policy that only those children who were residing in Australia at the time of application could be included on the certificate of naturalisation.

48.     It is not possible, after 78 years, to speculate as to the reasons why Vice Talijancic stated that he was unmarried and did not include the applicant as his child on his application for a certificate of naturalisation. The fact is that the applicant was not included on the application and consequently was never naturalised.

49.     Furthermore it is clear that according to the policy in operation at the time, the applicant could not have been naturalised. If Vice Talijancic had included her on his application she would still not have been included on his certificate of naturalisation. The only discernible difference is that Vice Talijancic would have been granted a BB Series Certificate and not an AA Series Certificate.

50. The Tribunal finds that as a consequence, the applicant was not naturalised as a British subject pursuant to s10(1) of the Nationality Act 1920 and did not acquire Australian citizenship under s25 of the Nationality and Citizenship Act 1948 as she was not a British subject.

Decision         

51.     For the reasons set out above the Tribunal finds that the applicant’s claims to have held Australian citizenship by virtue of her father’s naturalisation cannot succeed.  The Tribunal affirms the decision to refuse her application to resume Australian citizenship.

I certify that the 51 preceding paragraphs are a true copy of the reasons for the decision herein of Mr A Sweidan, Senior Member

Signed: ................[Sgd Ms C Skinner]........................
  Associate

Date/s of Hearing  10 April 2008
Date of Decision  23 May 2008
Applicant’s Representative      Mr Marcus Humphreys 
Counsel for the Respondent     Mr Arran Gerrard
Solicitor for the Respondent     Australian Government Solicitor