Playford and Minister for Immigration and Multicultural Affairs - [2001] AATA 15

DECISION AND REASONS FOR DECISION [2001] AATA 15

ADMINISTRATIVE APPEALS TRIBUNAL )

) No S2000/270

GENERAL ADMINISTRATIVE DIVISION       )
           Re      BRUCE ALASTAIR PLAYFORD
  Applicant
           And    MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
  Respondent

DECISION

Tribunal Senior Member J.A. Kiosoglous MBE

Date 16 January 2001
PlaceAdelaide

Decision       Pursuant to section 43 of the Administrative Appeals Tribunal Act 1975 the Tribunal affirms the decision under review.
  (Signed)
  J.A. KIOSOGLOUS
  (Senior Member)
CATCHWORDS
IMMIGRATION – citizenship – resumption of citizenship – daughter's citizenship – loss of citizenship by formal and voluntary act – daughters born in America after formal and voluntary act – eldest daughter incorrectly entered in register - correction of error in register – whether daughters can resume citizenship considered – whether daughters ever had Australian citizenship considered – whether section 23AA of the Australian Citizenship Act has retrospective application considered
Australian Citizenship Act 1948 ss.11, 17, 23AA
Australian Citizenship Amendment Act 1984 ss.10B, 13
Australian Citizenship Regulations

REASONS FOR DECISION

16 January 2001 Senior Member J.A. Kiosoglous MBE

This is an application by Mr Bruce Alastair Playford (the applicant) for review of a decision of a delegate of the respondent dated 6 June 2000 which refused the applications for resumption of Australian citizenship of Ms Darrielle Carly Playford and Ms Desiree Harlyn Playford, daughters of the applicant and allowed resumption of the applicant's citizenship as and from 26 May 2000 (T15).
The Tribunal received into evidence the documents lodged pursuant to s.37 of the Administrative Appeals Tribunal Act 1975 (T1-T16) and supplementary T documents (T17), together with five exhibits, two lodged by the applicant (Exhibits A1-A2) and three lodged by the respondent (Exhibits R1-R3). In addition, the Tribunal heard evidence from the applicant, who represented himself. The respondent was represented by Ms J McIntyre, of counsel.
history of the application
The applicant was born in South Australia on 26 June 1945, and acquired Australian citizenship by birth. He acquired citizenship of the United States of America (USA) on 17 December 1980 (T14). His daughter Desiree was born in Honolulu USA on 14 June 1982 and his daughter Darrielle in California USA on 30 December 1988.
On 20 October 1982, as a result of a request by the applicant, Ms Desiree Playford was registered as a citizen of Australia by descent with the Australian Consulate-General, Honolulu, and was issued an Australian passport on 21 October 1982 (T8/22 & 26).
In 1993 the applicant made enquires of the Australian Consulate-General about resumption of Australian citizenship (T4/14). The applicant made application for resumption of Australian citizenship in an application dated 15 October 1999 (T13).
By letter dated 19 June 2000 (T1/7) the respondent advised the applicant of its decision dated 6 June 2000 (T15) which stated (inter alia):
"…
Bruce Alastair PLAYFORD
Mr Playford's application was approved on 26 May 2000…
Desiree Harly [sic] PLAYFORD
The application for resumption of Australian citizenship for Desiree Playford has not been approved. Desiree was registered as an Australian citizenship by descent in Honolulu on 20 October 1982. However, as Desiree's father lost his Australian citizenship under Section 17 of the Act on 17 December 1980 when he acquired US citizenship he was not an Australian citizen at the time of Desiree's birth, Consequently, Desiree was not eligible for registration as an Australian citizen by descent under the provision of the then Section 11 of the Act as her responsible parent was not an Australian citizen at the time of her birth. In view of this, Desiree has never been an Australian citizen notwithstanding the registration of Australian citizenship by descent. Desiree cannot resume a status she has never held; ie, Australian citizenship.
The entry contained in the Register of Citizenship by Descent held in Honolulu showing Desiree as an Australian citizen by descent will be cancelled under Regulation 7C of the Citizenship Regulations.
Darrielle Carly PLAYFORD
The application for resumption of Australian citizenship for Darrielle Playford has also not been approved. As Darrielle was born outside Australia in 1988 and did not have a responsible parent who was an Australian citizen at the time of her birth she has never been entitled to Australian citizenship. As she has never been an Australian citizen she also cannot resume status she has never held.
…"
The applicant applied to this Tribunal for review of the decision on 24 July 2000 (T1/1).
legislation
Section 17 of the Australian Citizenship Act 1948 (the Act) provided as at 17 December 1980:
"17. 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 the nationality or citizenship of a country other than Australia, shall thereupon cease to be an Australian citizen."
Section 17 of the Act was subsequently amended by section 13 of the Australian Citizenship Amendment Act 1984 (the Amendment Act), which had the effect of changing "voluntary and formal act" to:
"… A person … who does any act or thing:
(a) the sole or dominant purpose of which; and
(b) the effect of which;
is to acquire the nationality or citizenship of a foreign country, shall, upon that acquisition, cease to be an Australian citizen.
…"
Section 11 of the Act as at the time of Ms Desiree Playford's birth on 14 June 1982 provided (inter alia):
"11. (1) A person born outside Australia on or after 26th January, 1949, is an Australian citizen by descent if –
(a) in the case of a person born in wedlock – at the time of the birth his father or mother was an Australian citizen; or
…
and, in either case, the birth was or is registered at an Australian consulate within five years after its occurrence or within such further period as the Minister allowed or allows."
Section 11 was subsequently repealed by the Amendment Act, which by virtue of sub-section 39(4), substituted section 10B for persons born either before or after the commencing day of the Amending Act (22 November 1984).
As at 30 December 1988, the date of Darrielle Playford's birth, section 10B provided (inter alia):
"(1) A person born outside Australia (in this sub-section referred to as the 'relevant person') is an Australian citizen if –
(a)the name of the relevant person is registered for the purposes of this section at an Australian consulate within 18 years after his birth; and
(b)a person, being a parent of the relevant person at the time of the birth of the relevant person –
(i)was at that time an Australian citizen who had acquired Australian citizenship otherwise than in the manner referred to in sub-sub-paragraph (ii)(A); or
(ii)was –
(A)at that time an Australian citizen who had acquired Australian citizenship under this section, or under section 11 of this Act as in force at any time before the commencement of this section; and
(B)at any time before the registration of the name of the relevant person (including a time before the birth of the relevant person), present in Australia, otherwise than as a prohibited immigrant, as a prohibited non-citizen, or in contravention of a law of a prescribed Territory, for a period of, or for periods amounting in the aggregate to, not les than 2 years."
Regulation 7C of the Australian Citizenship Regulations provides (inter alia):
"7C. (1) Subject to this regulation, where the Minister, or a person authorised in writing by the Minister for the purpose of approving such a cancellation, has, by instrument in writing, approved the cancellation of an entry in the register, an authorised officer may cancel the entry accordingly.
(2) For the purposes of subregulation (1), the Minister or a person authorised by the Minister in accordance with that subregulation shall not approve the cancellation of an entry in the register unless:
(a)the Minister or person authorised is satisfied on reasonable grounds that the entry has been made on the basis of false information; or
…
(4)An authorised officer is not entitled to cancel an entry in the register under this regulation unless the officer considers that the purposes of the cancellation would not be achieved by a correction of that entry."
Section 23AA of the Act provides provision whereby a person may resume citizenship lost in certain circumstances. Sub-section 23AA(1) gives the Minister discretion, subject to the satisfaction of specified criterion to enable registration of a declaration, the effect of which is the resumption of Australian citizenship, providing (inter alia):
"23AA. (1)
…
the Minister may, in the Minister's discretion, if the Minister is satisfied:
…
register the declaration in the prescribed manner and, upon the registration of the declaration, the person making the declaration again becomes an Australian citizen."
Sub-section 23AA(2) of the Act provides:
"The Minister may, in the Minister's discretion, upon application in accordance with the approved form, include in a declaration registered under subsection (1), either at the time of registering the declaration or by later amending the declaration, the name of a child:
(a)       who has not attained the age of 18 years;
(b)       of whom the person who made the declaration is a responsible parent; and
(c)       who ceased to be an Australian citizen by reason of the person who made the declaration ceasing to be an Australian citizen;
and, upon the inclusion of the name of the child in the declaration, the child again becomes an Australian citizen."

applicant's evidence and submissions

The applicant told the Tribunal that he was born in Prospect, South Australia on 26 June 1945 and completed primary and secondary education in South Australia. He served for six years in the Australian Army, including service in Vietnam in 1967-68 involving the Tet offensive. In June 1969 he left Australia for Hong Kong where he met his future wife. In February 1970 he went to Hawaii and married his wife in Hawaii in March 1970.
The applicant spent approximately fifteen years in Hawaii working as an aircraft mechanic, primarily for Qantas, and for United Airlines from February 1983 onwards. With United Airlines he has subsequently worked in San Francisco and Seattle. He currently lives in Seattle.
He told the Tribunal that he was advised by his union in 1980 to take out American citizenship in order to continue being able to work in America. He further stated that he has subsequently found out that this was incorrect and hence an unnecessary step. He stated that he was unaware at the time that he would lose his Australian citizenship upon becoming an American citizen, and was very surprised upon learning that he had lost his Australian citizenship.
He gave evidence that he applied for Desiree to become an Australian citizen in 1982 because he still personally considered himself to be an Australian citizen and had no idea that he had lost his Australian citizenship in 1980. He feels that he has never lost his Australian citizenship as he feels much more Australian than American.
He told the Tribunal that he did not apply for Darrielle to be registered as an Australian citizen in 1988 because he had learnt from a third party source that he may not be an Australian citizen and that Desiree's Australian citizenship may be revoked. He did not consider an application for Darrielle in those circumstances to be appropriate.
He submitted to the Tribunal that Australians are disadvantaged compared to people who are able to live in Australia with dual citizenship. He further submitted that Australians who go overseas should not lose their Australian citizenship. He stated that he knows a community of ex-patriot Australians in Seattle, and that all remain proud of their Australian heritage. He stated that he remains proud of his family name and relation to Sir Thomas Playford, and that he gives Australia its highest esteem both abroad and within Australia.
He referred to a statement by Shadow Spokesperson for Immigration, Mr Con Sciacca, that Australians living overseas are at a severe disadvantage by not being able to acquire their new country's citizenship while retaining their much loved Australian citizenship.
He considered that to not allow his daughters to have Australian citizenship would cause unnecessary hardship for his family and could lead to an unnecessary separation, especially as Desiree is currently completing college in America, and will need to make important choices in the near future as to which university to attend.
respondent's submissions
Ms McIntyre submitted, on behalf of the respondent, that the voluntary and formal act of the applicant's on 17 December 1980 invoked the provisions of section 17 of the Act, revoking his Australian citizenship.
Ms McIntyre submitted that, as at the time of the birth of both daughters, neither the applicant nor his wife were Australian citizens. Pursuant to section 11 of the Act in respect of Desiree Playford, and section 10B of the Act (subsequent to its amendment) in respect of Darrielle Playford, she submitted that neither daughter could be registered as an Australian citizen. She further submitted that the registration of Desiree in 1982 was erroneous, and that regulation 7C of the Australian Citizenship Regulations had been correctly used to rectify the erroneous registration.
Ms McIntyre submitted that neither of the applicant's daughters can resume Australian citizenship, as neither validly held Australian citizenship at any time. She further submitted that section 23AA of the Act cannot have any retrospective application, such that the applicant's resumption of Australian citizenship can only take effect as and from 26 May 2000. She stated that she is sympathetic to the applicant's dilemma, and noted that his daughters are not precluded from making application under other sections of the Act, and that there was no bar to their entry into Australia, such that after a two year period of residence, and satisfaction of the other citizenship requirements, they could apply for citizenship.
discussion and findings
As the Tribunal expressed to the applicant at the hearing of this matter, it is sympathetic to his situation, and cognisant of the difficulties that can be associated with the inability to acquire dual citizenship. The Tribunal remains however, a statutory body which is bound to apply the law in the manner in which it determines to be the most correct.
As a preliminary point, the Tribunal would note that it found the applicant to be a highly credible witness. It accepts as entirely genuine his expression of feelings for Australia and further accepts his evidence that he has always considered himself to be an Australian. It also notes his commendable service record, and accepts the logic of his argument that one would not serve six years in the armed forces of a country with which one did not have a great affinity. As the Tribunal told the applicant at the hearing of this matter however, such pragmatic arguments can often be overtaken by legal considerations, and so the Tribunal must turn to consider the application of the law to the facts of this matter.
The applicant was an Australian citizen by birth. In December 1980, the applicant made formal and voluntary application to become an American citizen, albeit as a result of what may have been erroneous information provided by his union. It is evident from the documentary evidence before the Tribunal that there was certainly a formal process involved in becoming an American citizen, particularly as evidenced by the involvement of the US District Court of the District of Hawaii (T14). There is no evidence to suggest that the applicant did not voluntarily make the application. Accordingly, the Tribunal so finds that as a result the actions of the applicant in December 1980, he ceased to be an Australian citizen upon the acquisition of American citizenship.
At the time of Desiree Playford's birth on 14 June 1982, section 11 of the Act as reproduced at paragraph 10 above was in force. Whilst the birth of Desiree was registered at an Australian Consulate within 5 years after its occurrence, Desiree Playford cannot satisfy sub-paragraph 11(1)(a) of the Act, which requires her father or mother to have been an Australian citizen as at the time of her birth. Accordingly, the Tribunal finds that Desiree Playford was not an Australian citizen by descent as at the time of her birth, and has not been an Australian citizen to date.
As a matter of fact however, Desiree was registered as an Australian citizen, and obtained an Australian passport (T8/22 & 26). In order to be removed from the register, the provisions of regulation 7C of the Australian Citizenship Regulations must be complied with. In respect of sub-regulation 7C(2)(a) whilst it is apparent that the applicant did not know he was not an Australian citizen, it is a reasonable assumption that the entry in the register was made on the basis that the applicant was an Australian citizen. If in fact the Consulate had been aware of the applicant's citizenship status, no such entry could have been made, as the provisions of the then section 11 of the Act would not have been satisfied. The Tribunal considers that it is far more likely that the entry in the register was placed because the officers of the consulate were acting on the assumption that the applicant was an Australian citizen. It is a much less likely scenario that such officers, aware that the applicant was not an Australian citizen would facilitate such an entry being made. Accordingly, the Tribunal is satisfied that the entry was made on the basis of false information, however innocently acquired, and so finds that sub-regulation 7C(2)(a) was rightly applied in the present matter.
For completeness, the Tribunal notes that sub-regulation 7C(2)(b) concerns the transitional provisions concerning re-registration pursuant to regulation 7A of the amended regulations for persons registered pursuant to regulation 7 the Australian Citizenship Regulations prior to the amendments contained in the Australian Citizenship Regulations (Amendment) 1984. That sub-paragraph has no application in the present matter.
By 30 December 1988, section 11 of the Act had been replaced by section 10B as outlined above in paragraph 12. The applicant has not applied to have his daughter Darrielle Playford entered in the register, although the Tribunal notes that for the purposes of sub-paragraph 10B(1)(a) of the Act, this can occur at any time within 18 years after the person's birth. The difficultly for Darrielle Playford lies in sub-paragraph 10B(1)(b) of the Act, which requires one of Darrielle's parents to have been an Australian citizen as at the time of Darrielle's birth. For the reasons outlined above, as at 30 December 1988, neither the applicant nor his wife were Australian citizens. Accordingly, the Tribunal so finds that section 10B of the Act is not satisfied and that Darrielle Playford has not been an Australian citizen at any stage.
The application that gave rise to these current proceedings was made pursuant to section 23AA of the Act. The Tribunal does not consider that sub-section 23AA(1) of the Act is intended to have any retrospective application. It is clear that the resumption of Australian citizenship takes effect as and from the registration of the declaration made pursuant to sub-paragraph 23AA(1)(c) of the Act. The Tribunal is sympathetic to the applicant's argument that his resumption of citizenship should be backdated since he has always considered himself to be an Australian citizen. However, the emotional logic of this argument cannot overcome the force of the legislation, which is clearly not intended to have retrospective scope.

In relation to the two daughters therefore, there is an insurmountable hurdle contained in sub-paragraph 23AA(2)(c) of the Act, in that neither daughter "ceased" being an Australian citizen as a result of the applicant ceasing to be an Australian citizen. For the reasons outlined above, neither daughter has properly been an Australian citizen, and one cannot cease to be something that one has never been in the first place.
The applicant asked the Tribunal to consider granting (or granting the "resumption" of) the daughters' citizenship on hardship grounds. As the Tribunal indicated at the hearing of this matter, there are no general "hardship" provisions by virtue of which the Tribunal could enable this to occur. Furthermore, it is apparent that any such hardship was more speculative than apparent, and is highly dependent upon what may or may not happen in the future. The Tribunal is unable to find any provision by virtue of which the applicant's daughters could satisfy sub-section 23AA(2) of the Act, and accordingly must affirm the decision under review.
In conclusion the Tribunal reaffirms the comments it made at the hearing of this matter in respect of urging the legislature to contemplate law reform in this area. This case in particular has highlighted some of the discrepancies that can occur in citizenship matters. Citizenship is one of those matters where emotion and sentiment are not matters which can be taken lightly, for citizenship goes to the very core of our identity as people. This applicant clearly has a genuine and sincere attachment to this country, a country for which he even served in a theatre of war. That he should wish his daughters to enjoy the same citizenship privileges is most understandable.
The Tribunal notes finally that, as Ms McIntyre submitted, the other provisions of the Act are not closed to his daughters. The applicant simply faces the difficulty that section 23AA is only intended for resumption of lost citizenship in certain circumstances, and does not allow for a more general discretion to be exercised. If the applicant's daughters should come to Australia and meet the necessary residence and other criteria, they would be able to become Australian citizens in due course.
decision
For the above reasons and pursuant to section 43 of the Administrative Appeals Tribunal Act 1975 the Tribunal affirms the decision under review.
I certify that the 39 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member J.A. Kiosoglous MBE
Signed:         .....................................................................................
  (Personal Assistant)
Date/s of Hearing  5 January 2001
Date of Decision  16 January 2001
Counsel for the Applicant        In person
Solicitor for the Applicant         -
Counsel for the Respondent    Ms J. McIntrye
Solicitor for the Respondent    Sparke Helmore