Prshewlozky and Minister for Immigration and Citizenship

[2010] AATA 1007

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2010] AATA 1007

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No 2010/1540

GENERAL ADMINISTRATIVE DIVISION		)
Re		TATIANA PRSHEWLOZKY

Applicant

And MINISTER FOR IMMIGRATION AND CITIZENSHIP

Respondent

DECISION

Tribunal Senior Member K Bean

Date15 December 2010

PlaceAdelaide

Decision The decision under review is affirmed.  

..............................................

K BEAN
  (Senior Member)

CATCHWORDS

IMMIGRATION AND CITIZENSHIP – Application for resumption of citizenship – Whether applicant ever held Australian citizenship – Applicant was present in Australia as a child but has never been an Australian citizen – Decision under review affirmed.  

Nationality and Citizenship Act 1948 ss 7, 10, 11, 12, 14, 15, 16
Australian Citizenship Act 2007 s 29

Aliens Act 1947

REASONS FOR DECISION

15 December 2010   Senior Member K Bean  

introduction

1.      This application arises from events which, whilst they took place some time ago, are nonetheless tragic.

2.      The applicant, Ms Prshewlozky, was born in Austria in 1944.  When she was just under 5 years old, her parents brought her to Australia, seeking a better life.  Very sadly, less than 18 months later on 12 November 1950, Ms Prshewlozky’s mother died relatively suddenly from liver cancer, which was not diagnosed until it was too late for her life to be saved[1].

[1] Exhibit 2

3.      Ms Prshewlozky’s father, Alexander Prshewlozky-Naruschewitsh, then decided to emigrate to the United States of America (USA), where his wife’s sister resided.  He took his children with him and on 20 October 1952, Ms Prshewlozky arrived in the USA with her father and siblings[2].  On 3 December 1957, Ms Prshewlozky acquired USA citizenship through the naturalisation of her father[3].

[2] T8/63

[3] T8/48

4.      More than 50 years later, in October 2009, Ms Prshewlozky lodged at the Australian Embassy in Washington DC an application to resume Australian citizenship[4].

[4] T5/20

5.      On 9 December 2009, a delegate of the Minster for Immigration and Citizenship decided to refuse that application[5].  The main reason given for this decision was that there was no evidence before the decision-maker to support a conclusion that Ms Prshewlozky or her father had ever acquired Australian citizenship.  Ms Prshewlozky has now applied to this Tribunal for review of that decision.

[5] T2/5-9

legislation and issues

6.               Section 29 of the Australian Citizenship Act 2007 relevantly provides as follows:

“29       Application and eligibility for resuming citizenship

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

Note 1:Section 46 sets out application requirements (which may include the payment of a fee).

Note 2:The person may also apply to become an Australian citizen again under Subdivision A, AA or B.

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.

Note 1:See also section 32 (which is about persons resuming their former citizenship status).

Note 2: A person who ceases to be an Australian citizen under section 34 or 35 may apply to become an Australian citizen again under Subdivision A, AA or B.

Cessation under old Act

(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.”

It is clear from the terms of this provision, and as a matter of logic, that in order to be eligible to resume Australian citizenship, a person must have been an Australian citizen at some time in the past.

7.      The issues before me therefore are:

(a)      whether Ms Prshewlozky has ever held Australian citizenship;

(b)      if so, whether she is eligible to become an Australian citizen again; and

(c) if so, whether her application for resumption of Australian citizenship should be granted.

did ms prshewlozky at any time acquire australian citizenship?

8.      In order to establish that she acquired Australian citizenship, Ms Prshewlozky must show that she satisfied the legal requirements for citizenship at the relevant time.

9.      Relevantly to Ms Prshewlozky’s circumstances, the Nationality and Citizenship Act 1948 (the Act) came into force on 26 January 1949, and created an Australian citizenship. 

10.     As it stood in 1950, at the time Ms Prshewlozky’s mother died, the Act provided as follows in relation to the acquisition of Australian citizenship[6]:

[6] These provisions of the Act did not change materially during the time that Ms Prshewlozky was in Australia.

“10(1) Subject to this section, a person born in Australia after the commencement of this Act shall be an Australian citizen by birth.

…

11(1)Subject to this section, a person born in Australia after the commencement of this Act shall be an Australian citizen by descent if-

(a)      at the time of the birth-

(i)        his father was an Australian citizen; or

(ii)in the case of a person born out of wedlock, his mother was an Australian citizen or a British subject ordinarily resident in Australia or New Guinea; and

(b)the birth is registered at an Australian consulate within one year after its occurrence or, in special circumstances, within such extended period as the Minister allows.

…

12(1)The Minister may, upon application in the prescribed manner, grant a certificate of registration as an Australian citizen to a person who is a citizen of a country to which section seven of this Act applies, or an Irish citizen, and satisfies the Minister-

…

14(1)An alien or a protected person shall not be entitled to obtain a certificate of naturalization unless, not earlier than one year after his entry into Australia or New Guinea, he makes a declaration in the prescribed form of his intention to apply for the grant of a certificate of naturalization as an Australian citizen.

(2)An alien or a protected person may make application in the prescribed form for the grant of a certificate of naturalization as an Australian citizen not earlier than two years and not later than seven years after the making of the declaration of intention or, in any case in which a declaration of intention is not required, not earlier than one year after his entry into Australia or New Guinea.

(3)The Minister may, upon application in the prescribed form by a person who has, under paragraph (a) or (b) of sub-section (2) of the next succeeding sub-section, been allowed to reckon residence or service, exempt that person from the requirement of sub-section (1) of this section.

15(1)The Minister may grant a certificate of naturalization as an Australian citizen to an alien or to a protected person who has made application in accordance with the last preceding section and satisfies the Minister-

(a)that he complies with qualifications corresponding to those specified in paragraphs (a), (c), (d), (e) and (f) of sub-section (1) of section twelve of this Act;

(b)that he has resided continuously in Australia or New Guinea or partly in Australia and partly in New Guinea, throughout the period of one year immediately preceding the date of the application; and

(c)that, in addition to the residence required under the last preceding paragraph, he has resided in Australia or New Guinea, or partly in Australia and partly in New Guinea, or has had service under an Australian government, or partly such residence and partly such service, for periods amounting in the aggregate to not less than four years during the eight years immediately preceding that date.

(2)For the purposes of paragraph (c) of the last preceding sub-section, the Minister may, in such cases as he thinks fit-

(a)allow residence in a country other than a foreign country to be reckoned as if it had been residence in Australia;

(b)allow service under the Government of a country to which section seven of this Act applies, or of a province or territory of any such country, to be reckoned as if it had been service under an Australian government; and

(c)allow periods of residence or service earlier than eight years preceding the date of the application to be reckoned in computing the aggregate period mentioned in that paragraph.

(3)Notwithstanding anything contained in the preceding provisions of this Division, the Minister may, upon application in the prescribed form, grant a certificate of naturalization as an Australian citizen to an alien who is not of full age.

(4)Notwithstanding anything contained in section fourteen of this Act or in paragraph (a) or (b) of sub-section (1) of this section, the Minister may, upon application in the prescribed form, grant a certificate of naturalization as an Australian citizen to an alien woman who satisfies the Minister-

(a)that she is the wife of an Australian citizen; and

(b)that she has resided with her husband in Australia or New Guinea, or partly in Australia and partly in New Guinea, for a continuous period of not less than one year.

(5) The Minister may, upon application in the prescribed form, include in a certificate of naturalization granted under this Act the names of any children not of full age of whom the grantee is the responsible parent or the guardian.

16(1)A person to whom a certificate of naturalization has been granted shall be an Australian citizen by naturalization-

(a)in the case of a person who has attained the age of sixteen years – as from the date upon which he takes in the prescribed manner an oath of allegiance in accordance with the form contained in the Second Schedule to this Act; or

(b)in the case of a person who has not attained that age – as from the date upon which the certificate is granted.

(2)A person whose name is under the last preceding section included in a certificate of naturalization shall, if not already an Australian citizen, be an Australian citizen by naturalization as from the date upon which his name is so included or the date upon which the grantee of the certificate of naturalization becomes an Australian citizen by naturalization, whichever is the later.

…”

11. As Ms Prshewlozky was not born in Australia and nor were her father or mother Australian citizens at the time of her birth, ss 10 and 11 are not applicable to her. Similarly, she was not a person to whom s 7 applied, as she was not a British subject, and therefore s 12 also has no application.

12. However, ss 14 and 15 of the Act provided a mechanism by which a person being an “alien” or a “protected person” could potentially acquire citizenship through naturalisation, upon certain requirements being fulfilled.

13.     The term “alien” was at the relevant time defined in the Act to mean “a person who is not a British subject, an Irish citizen or a protected person” with “protected person” being defined to mean “a person who is included in such prescribed classes of persons who as are under the protection of the government of any part of His Majesty’s dominions”. It is accordingly clear that, at the time of their arrival in Australia, Ms Prshewlozky, her mother, father and her other siblings were “aliens” within the meaning of the Act, and could potentially acquire Australian citizenship via the mechanism provided in ss 14 and 15 of the Act.

14. The next question which arises therefore is whether any of them fulfilled the requirements for citizenship as set out in ss 14 and 15 of the Act, prior to Mr Prshewlozky leaving Australia with his children, including Ms Prshewlozky.

15. It is clear from ss 14 and 15 of the Act that in order for an “alien” to acquire citizenship, it was necessary for them to comply with the following requirements:

(a)      at least one year after their arrival in Australia they were required to make a declaration of their intention to apply for the grant of a certification of naturalisation as an Australian citizen[7]; and

(b)      at least two years after making that declaration, they were required to make an application for the grant of a certificate of naturalisation as an Australian citizen[8].

[7] s 14(1)

[8] s 14(2)

16. It is apparent from these provisions that in order for Ms Prshewlozky to acquire Australian citizenship, either her father or mother must have complied with these requirements and consequently been granted a certificate of naturalisation as an Australian citizen. Whilst s 15(3) also allows for a child to be granted naturalisation “upon application in the prescribed form”, unsurprisingly given her age at the time, Ms Prshewlozky does not claim to have made any such application.

17.     There is no documentary evidence before me to support a conclusion that either Ms Prshewlozky’s father or mother successfully completed these pre-conditions to the grant of Australian citizenship, or that either of them were granted Australian citizenship.

18.     In the case of Ms Prshewlozky’s mother, it is clear from the documents which are available that she was given a certificate of registration under the Aliens Act 1947, issued at Sydney on 18 August 1949[9].

[9] Exhibit 2

19.     There is no documentary evidence to suggest that Ms Prshewlozky’s mother gave notice of her intention to apply for the grant of a certificate of naturalisation as an Australian citizen.  However, even if she had done so one year after arriving in Australia as required by the Act, say in August 1950, as I have referred to above, she sadly died in November 1950, well short of the further two years she would have needed to wait before applying for a certificate of naturalisation.  Given the amount of time which elapsed between her arrival in Australia and her untimely death, she could not have satisfied the requirements for the grant of citizenship set out in the Act.

20.     In relation to Ms Prshewlozky’s father, Alexander Prshewlozky-Naruschewitsh, although the certificate is not in evidence before me, it is apparent from other evidence which is before me that he also held an alien’s registration certificate[10].  Further, on 24 September 1951, he was also granted a certificate of authority to remain in Australia[11], stating that he was entitled to remain in Australia indefinitely but also stating expressly “This document is not a Certificate of Naturalisation and does not confer Australian citizenship or British nationality”. 

[10] T15/79

[11] T15/79

21.     On 29 August 1952, a certificate of identity was also issued to Mr Prshewlozky-Naruschewitsh by the Australian Department of Immigration in Sydney.  That certificate stated that his nationality was “Stateless/Ukrainian”[12].  Having received that document, the evidence shows that on 11 September 1952, Mr Prshewlozky-Naruschewitsh applied to the American Consulate in Sydney for a visa to travel to the USA, and alien registration.  His nationality was stated on that form to be “Stateless”.  Mr Prshewlozky-Naruschewitsh and his four children then left Australia in September 1952 and arrived in the United States on or about 20 October 1952.

[12] T6/29

22.     Accordingly, Mr Prshewlozky-Naruschewitsh was present in Australia between 18 August 1949 and September 1952, a period of just over three years.  He was therefore in Australia long enough to potentially complete the process prescribed by the Act and to have become an Australian citizen.  However, there is no documentary evidence to support a conclusion that he did so and it is significant in my view that the identity document issued to him in Australia immediately prior to his departure for the United States gave his nationality as “Stateless/Ukrainian” and in his application to the American Consulate for a visa he gave his nationality as “Stateless”.

23.     Ms Prshewlozky gave oral evidence at the hearing as to the circumstances in which she said her mother and/or father had acquired Australian citizenship.  This was difficult to follow and at times contradictory.  In the course of her evidence she said that based upon what she had been told she believed that before her mother had died, she had declared her intention to become a citizen.  Two years later, after her mother had died, she said that her father had gone to take an oath at the Immigration Department, but had been informed that if he became a citizen, his children would be taken from him and put in an orphanage.  She said her father could not accept this and did not want his children to be taken from him.  Her evidence was extremely unclear as to whether her father then proceeded to take the oath or not.  At one point in her evidence she acknowledged that he had never told her he took the oath, but said she believed he had taken it.  She said he then arranged to travel to the United States, intending to return to Australia.

24.     In a letter to the Tribunal received on 15 September 2010, the applicant’s son, Jimmy Prshewlozky, writing on his mother’s behalf stated:

“Alexander took the oral oath for Walentine fully filed citizen application filed about 8.27.50 and on 8.28.50 Walentine went to hospital … oath taken two years after it was filed on 08.27.52 or 08.29.52.”

25.     By way of contrast however, in a letter dated 14 July 2009 addressed to the Australian Embassy, Ms Prshewlozky stated:

“My father stated he emigrated because my mother died, before completing his citizen application.”[13]

[13] Exhibit 2

26.     In summary, the only evidence before me which would support a conclusion that Mr Prshewlozky-Naruschewitsh acquired Australian citizenship while he was in Australia is the assertion of Ms Prshewlozky that he took an oath of citizenship, relying upon a notice of intention filed by her mother before her death.  Ms Prshewlozky makes this assertion notwithstanding her evidence that her father believed if he took the oath his children would be placed in an orphanage, and her understanding that he was determined this should not occur.  She also makes it notwithstanding the fact that she acknowledges her father never told her that he took an oath of citizenship and in the absence of any documentary proof that he did so.  In fact, she makes the assertion notwithstanding that the documentary evidence which is available tends to contradict it, in particular her father’s application for an immigration visa and alien registration made to the American Consulate in Sydney, which gave his nationality as ”Stateless”[14].  Further, Ms Prshewlozky also makes this assertion notwithstanding her earlier contrary statement to the effect that her father had left Australia before obtaining Australian citizenship.

[14] T8/62

27.     Having regard to all of the above matters, including the contradictory nature of Ms Prshewlozky’s evidence and the fact that the basis upon which she appears to claim that her father obtained citizenship (i.e. relying on a notice of intention given by her mother) is inconsistent with the provisions of the Act, I am not satisfied that her father did in fact obtain Australian citizenship prior to leaving Australia.  For the reasons given above I am also not satisfied that her mother acquired citizenship prior to her death.  As Ms Prshewlozky was a child at the time she left Australia and does not claim to have applied for citizenship separately from her parents, it follows that I am satisfied that Ms Prshewlozky has not at any time acquired Australian citizenship, either directly or as a consequence of the naturalisation of either of her parents.

28.     It follows that Ms Prshewlozky’s application for resumption of citizenship must fail as she has never been an Australian citizen and is therefore not eligible to resume citizenship under s 29 of the Australian Citizenship Act 2007.

decision

29.     The decision under review is affirmed.

I certify that the 29 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member K Bean

Signed:         .............J Coulthard.......................................
  Associate

Date of Hearing  26 October 2010
Date of Decision  15 December 2010
Advocate for the Applicant       Self-represented
Advocate for the Respondent   Mr P d'Assumpcao
Solicitor for the Respondent     AGS