RBSM and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Citizenship)
[2021] AATA 4630
•14 December 2021
RBSM and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Citizenship) [2021] AATA 4630 (14 December 2021)
Division:GENERAL DIVISION
File Number(s): 2020/8503
Re:RBSM
APPLICANT
AndMinister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
RESPONDENT
DECISION
Tribunal:The Hon. Deputy President Dennis Cowdroy, AO QC
Date:14 December 2021
Place:Sydney
The Tribunal affirms the decision under review.
...........................[sgd].............................................
The Hon. Deputy President Dennis Cowdroy, AO QC
CATCHWORDS
RESUMPTION OF CITIZENSHIP – previous renunciation of citizenship – whether renunciation was to avoid significant hardship or detriment – definition of ‘significant hardship or detriment’ – whether employment prospects were limited by possession of Australian citizenship – decision affirmed.
LEGISLATION
Administrative Appeals Tribunal Act 1975 (Cth)
Australian Citizenship Act 1948 (Cth) (repealed) s 10
Australian Citizenship Act 2007 (Cth) 29, 33
CASES
Re Drake and Minister for Immigration and Ethnic Affairs (No 2) [1979] AATA 179; (1979) 2 ALD 634
Newton v Federal TaxationCommissioner (1959) 98 CLR 2
Sirote and Minister for Immigration and Border Protection (Citizenship) [2015] AATA 564
SECONDARY MATERIALS
Australian Citizenship [Policy Statement]
Citizenship Policy Instruction 12 – Assessing significant hardship, disadvantage, or detriment for the purposes of Australian citizenship
REASONS FOR DECISION
The Hon. Deputy President Dennis Cowdroy, AO QC
14 December 2021
On 22 December 2020, the applicant sought review of a decision of the Minister, dated 15 December 2020 to the applicant, which refused the applicant’s application made under the Australian Citizenship Act 2007 (Cth) (“the Act”) to resume the applicant’s former Australian citizenship.
Accordingly, the issue before the Tribunal is whether the applicant is eligible to resume his Australian citizenship again pursuant to section 29(2)(a)(i) of the Act, if it is found that the applicant ceased to be an Australian citizen in order to avoid suffering significant hardship or detriment. The key issue is whether the circumstances of the applicant, in seeking to improve his prospects of specialist employment with British defence agencies, constitutes circumstances amounting to avoiding suffering significant hardship or detriment.
CHALLENGED DECISION
The Department’s decision record, attached to the reviewable decision dated 15 December 2020, states that:
Based on the information contained in [RBSM] application and statement, I am not satisfied [RBSM] has provided evidence to support his claim that he renounced his Australian citizenship to avoid suffering significant hardship or detriment. The statement made by [RBSM] that he was ineligible for career opportunities for organisations such as HMGCC and AWE because he held dual citizenship, was not supported by their respective website and no official employment contract was provided in support of this claim. It can also be noted that working in any specialised industry is a personal choice and with the experience [RBSM] has had in the IT industry there would be other employment opportunities that doesn’t require renunciation of Australian citizenship. Therefore [RBSM] is not eligible to resume Australian citizenship.
FACTS AND UNDISPUTED FACTS
Undisputed facts
The applicant is a citizen of the United Kingdom who was born in Australia on 16 April 1982.
The applicant acquired Australian citizenship on the day of his birth under s 10 of the
of the Australian Citizenship Act 1948 (Cth).[1]
[1] Repealed by the Australian Citizenship Act 2007 on 1 July 2007.
On 24 September 2013, the applicant acquired citizenship of the United Kingdom by
naturalisation.
On 31 March 2014, the applicant applied to renounce his Australian citizenship under s 33 of the Act. In the application, he stated that the reason for renouncing his Australian citizenship was to “avoid hardship within career”.
During the time leading up to his application to renounce his Australian citizenship, the applicant was a self-employed IT contractor on a rolling three-month contract in the UK.
At the time the applicant renounced his Australian citizenship, he did so with a view to obtaining desirable roles as an IT professional in the UK’s defence sector.
On 15 April 2014, the applicant’s application to renounce his Australian citizenship
under s 33 of the Act was approved and his citizenship revoked.
On 7 September 2020, the applicant applied to resume Australian citizenship.
On 8 October 2020, the Department requested that the applicant provide evidence in
support of his claim that he renounced his Australian citizenship to avoid hardship.
On 3 November 2020, the applicant provided a written submission to the Department in which he stated that he was shortlisted for a role at the Atomic Weapons Establishment (AWE) and invited to an interview with a recruitment contractor in December 2013, where he was told that he was ineligible for the role because of his dual nationality.
On 8 November 2020, the applicant provided another submission in which he explained that he was unable to provide any further supporting evidence as he had been told by various persons that relevant employment records had not been retained past 2017 due to a restructure of AWE contractors.
On 15 December 2020, a delegate of the Minister refused the applicant’s application to resume Australian citizenship on the basis that insufficient evidence had been provided to establish that the applicant renounced his Australian citizenship to avoid significant hardship or detriment, as required by s 29(2)(a)(i) of the Act.
On 22 December 2020, the applicant applied to the Tribunal for review of the delegate’s decision.
Disputed facts
The respondent disputes the applicant’s assertion that he was unable to find employment in a desirable role as an IT professional in the UK’s defence sector due to his dual citizenship.
The respondent disputes the applicant’s assertion that inability to obtain employment in certain roles in the UK’s defence IT sector amounted to significant hardship or detriment for the purposes of s 29(2)(a)(i) of the Act in circumstances where the applicant was qualified to pursue a wide range of employment.
ADDITIONAL FACTS
On 22 December 2020, accompanying his Application for Review to this Tribunal, the applicant provided a statement dated 18 December 2020 and stated:
(a)He was interested in working in the defence IT sector because those roles “offered good job security and working conditions when compared to the private sector”.
(b)There was a lack of clarity concerning the eligibility of dual nationals to obtain such roles and he was frustrated by his attempts to resolve that question with various employers.
(c)He decided to renounce his Australian citizenship “with the view of increasing eligibility for the job roles as a British/UK National”
(d)During the time leading up to his application to renounce his Australian citizenship, he was a self-employed IT contractor on a rolling three-month contract. The applicant submits that he did not have a “financial safety net in place”. He was concerned about what would happen if his rolling contract was not renewed. He was also concerned about cost-cutting in the United Kingdom at that time which had a negative impact on IT contractors. He decided that employment at defence agencies such as Her Majesty’s Government Communications Centre and AWE “potentially would offer me a more secure position”.
(e)It was clear from “numerous job interviews” that his dual citizenship was detrimental for his employment prospects in the defence sector but he was unable to provide corroborative evidence of this because he was only ever given verbal advice of the outcome of job applications.
LEGISLATIVE PROVISIONS
Section 30(1) of the Act provides:
If a person makes an application under section 29, the Minister must, by writing, approve or refuse to approve the person becoming an Australian citizen again.
Section 30(1A) of the Act provides:
The Minister must not approve the person becoming an Australian citizen again unless the person is eligible to become an Australian citizen again under subsection 29(2) or (3).
Section 29(2) of the Act provides:
Cessation under this Act
2A 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.
CITIZENSHIP POLICY INSTRUCTION
Citizenship Policy Instruction (CPI) 12 – ‘Assessing significant hardship, disadvantage or detriment for the purposes of Australian citizenship’ deals with assessment of significant hardship or detriment. CPI 12 notes that the phrase “significant hardship or detriment” is not defined in the Act and, relevantly, sets out the following definitions from the Macquarie Dictionary:
·significant: important; of consequence.
·hardship: a condition that bears hard upon one; severe toil, trial, oppression, or need; an instance of this; something hard to bear.
·detriment: loss, damage or injury; a cause of loss or damage.
CPI 12 gives the following relevant example which may constitute significant hardship or detriment for the purposes of s 29(2) of the Act:
·Inability to obtain employment without renouncing Australian citizenship. To resume Australian citizenship in reliance upon the ‘avoid suffering significant hardship or detriment’ limb of section 29(2)(a)(i) of the Act, the applicant would need to demonstrate that they renounced Australian citizenship to avoid significant hardship or detriment.
oIt may be relevant for the decision maker to consider whether the skills the person had at the time of renunciation were only relevant to the employment they were engaged in overseas or whether they could have been utilised in alternative employment not requiring sole citizenship.
oIt may also be relevant for the applicant to be able to provide a letter from the employer attesting that the applicant could not be a dual citizen when commencing employment. Such a letter may be available on the applicant’s renunciation file.
DOCUMENTATION
The applicant has relied upon the following documentation in support of his application.
In January 2021, the applicant provided:
(a)the UK Civil Service Nationality Rules and provides the following extracts (emphasis in the applicant’s statement):
Page 11 - Dual Nationality
1.46 Candidates with dual nationality are in principle eligible for employment in the Civil Service provided that they meet the requirements in relation to one of their nationalities. They may not be eligible, however, for employment in certain reserved posts where additional nationality requirements are imposed.
Page 15 – Reserved Posts
Section 3
3.1 Only UK nationals may be employed in reserved posts in the Civil Service. Reserved posts are generally those which, due to the sensitive nature of the work, require special allegiance to the Crown such that they can only be held by a UK national.
3.2 Under no circumstances may any other nationals be employed in reserved posts.
[Bolded portions is in the original]
3.3 This Section contains guidance on those posts which are, and those which are capable of being, reserved for UK nationals.
Reserved Posts
3.4 All posts within the security and intelligence services (that is, the Security Service, the Secret Intelligence Service, and the Government Communications Headquarters) are automatically reserved to UK nationals.
3.5 Certain other categories of posts are capable of being reserved if the Minister responsible for the department or agency considers that to be necessary (that is, that special allegiance to the Crown is required in respect of that post such that the post must be held by a UK national).
(b)A copy of his employment contract with Atos, the covering letter attached to it being dated 15 January 2014.
(c)An email chain from the applicant to LA International Computer Ltd seeking confirmation that certain roles “aren’t available for Dual Nationals”; and a response from LA International Computer Consultants Ltd addressed to the applicant dated 4 June 2021 which relevantly states:
This will be because of project security requirements, making this a UK-eyes only position. Is this something that would make the position unsuitable for you?
(d)A letter from Mr Leo Docherty MP, Parliamentary Under-Secretary of State and Minister for Defence People and Veterans, United Kingdom Parliament responding to a request by the applicant’s local parliamentary member concerning the applicant’s employment in the Messaging and Collaboration Team at the Foreign, Commonwealth and Development Office (FCDO) (United Kingdom) which relevantly states:
My officials have consulted with their counterparts at the FCDO and have been advised that [RBSM] provided contractor services to the Department but was employed by Computacenter and was not an FCDO member of staff. FCDO officials have recommended that [RBSM] contacts Computacenter directly to request information about his employment with the company.
The applicant also provided a letter from Johnny Mercer MP of the Ministry of Defence dated 22 March 2021 which stated:
British citizens who hold dual nationality are in principle eligible for employment by the Ministry of Defence and its defence contractors. However, there are some areas in the Defence Nuclear Enterprise, where, in order to meet international treaty obligations and regulations, roles are restricted to British citizens who do not hold dual nationality. This is especially true of the sensitive work carried in some roles at the Atomic Weapons Establishment.
On 6 April 2021, the applicant provided further documentation including:
(a)A letter from Graham Simpson, Head of Security Operations at AWE dated 25 March 2021 and corresponding email stating that: the applicant was interviewed in December 2013 for a role as an IT Engineer working for a contractor at AWE, which relevantly states:
This letter confirms that [RBSM] was interviewed in December 2013 for a role as an IT Engineer working for a contractor at AWE.
I can confirm that [RBSM] was not accepted: only sole British nationals were accepted for the role for which he applied.
AWE’s website ( states ‘Because of what we do is of the highest security, to work here, you’ll need to be a British National and have resided in the UK for the past five years for SC clearance (and ten years for DV). We may consider dual nationality for certain roles’.
(b)An email chain between the applicant and Sam Morgan of Networkers International PLC in November 2013 confirming that the applicant was unsuccessful for a role due to his CV being “exchange focussed” and not enough “3rd line experience”.
(c)An email chain from Dylan Trench of Repose IT dated 10 December 2013 confirming an interview for an SSE Level 1 role.
(d)An email from CommVault Systems dated 21 August 2013 confirming a resume has been submitted.
(e)An email from Jon Briginshaw dated 21 August 2013 confirming an interview with CommVault Systems and corresponding email.
(f)An email from Dan Hughes of Monarch Recruitment Ltd, dated 10 May 2013 regarding an interview with NIU solutions.
On 14 July 2021, in accordance with the Tribunal’s directions, the applicant provided a statement with the following further documents attached:
(a)Two statutory declarations by the applicant dated 1 July 2021, which make assertions about the applicant’s employment history and difficulty finding desired employment around December 2013, which states:
18 December 2013 I spoke with Mark Preece of AWE for a prospective role who advised that I would not be eligible for the role because of my dual nationality.
Such declaration also states:
Jan 2015 until Sep 2019 I worked in an ongoing temporary/contract role at the Foreign & Commonwealth Office in the Messaging Team. This role required an active DV Clearance and UK Nationality as a condition to starting the contract.
June 2021 Defence IT roles can offer generous pay rates for temporary periods of work, starting from £350 per day+ ranging 2-3 months onwards. I received a job offer recently from a recruiter for a 'UK eyes only' role which is not available to dualnationals.
4th June 2021 I spoke with Melanie Clarke of LA International for a prospective contract who advised that I would not be eligible for the role because of my dual nationality.
(b)A letter to the applicant dated 2 January 2014 from his former employer, Fujitsu, confirming he was granted a “developed vetting” top secret security clearance.
(c)An email to the applicant dated 4 June 2021 from an employment recruiter attaching a job description for a position of “SharePoint SME” at “DXC.technology” which states no dual nationals would be eligible.
(d)
An email chain from the applicant made by email on 5 July 2021 of Computacenter
enquiring whether the nationality requirements for the role in which the applicant was engaged at the FCDO could be confirmed. The reply dated 6 July 2021 relevantly states:
It is at the FCDO’s discression [sic – discretion] regarding dual nationality for the account but UK nationality is a contractual requirement. I hope that answers your question.
APPLICANT’S SUBMISSIONS
The applicant submits:
(a)From January 2014 he was a self-employed IT contractor in the United Kingdom engaged by the Atos IT Company (“Atos”). His contract was three monthly and renewable. In March 2014 he applied for renunciation of citizenship which was granted in April 2014. The contract with Atos was renewed initially, but then concluded in September 2014.
(b)The applicant was thereafter unemployed for three months, living on very limited resources.
(c)The applicant made the decision to apply for employment in the defence sector. The applicant held an existing security clearance from his work at Fujitsu. He hoped to obtain a position at defence institutions such as HGMCC or the AWE, or other positions where additional security requirements when necessary. The applicant considered that such a position would offer him more job security and would assist him avoiding “suffering significant detriment”.
(d)In the public and private sectors, cost-cutting was occurring in the United Kingdom and many contracts for IT personnel were not renewed, or were being offered full-time positions at approximately 50% of their contractor income.
(e)The applicant’s dual citizenship had seemingly proved to be an obstacle to his engagement. When attending an interview at AWE in December 2013, he was verbally informed that to obtain a position at a nuclear organisation he would need to apply for renunciation of his Australian citizenship because of the nationality and security requirement for the advertised role.
(f)The Civil Service Nationality Rules (relevantly set out above) rendered dual nationals ineligible for “Reserved Posts”.
(g)The applicant therefore decided to renounce his Australian nationality, with the consequence that he be solely a UK national and therefore would comply with the nationality requirements for the roles he applied for, such as the role at AWE or Reserved Posts roles.
(h)The applicant asserts that at the time of applying for renunciation of his Australian citizenship, he was suffering both significant hardship and significant financial detriment: the dual citizenship was a detriment to him in respect of his applications for securing a position in the Defence or in the Intelligence Sector, and applying for such positions would have provided more security and reduce the risk of suffering hardship. Atos did not renew his contract and he suffered significant hardship in the three-month period following.
RESPONDENT’S CONTENTIONS
The Respondent’s SFIC states the following:
The respondent accepts the applicant’s evidence that, at the time he renounced his Australian citizenship, he did so with a view to obtaining desirable roles as an IT professional in the UK’s defence sector.
The respondent contends the applicant’s actions are best viewed as renouncing his Australian citizenship in order to avoid either being confined to a smaller number of roles in his desired sector or taking a role in a sector that he considered to be less desirable. The respondent contends those circumstances do not amount to avoiding suffering significant hardship or detriment.
The respondent’s contentions, broadly, are twofold:
(a)The applicant has not established that no desirable roles were available to him as a dual national; and
(b)Even if that were established, the applicant’s choice to pursue specialist employment does not equate to avoiding suffering significant hardship or detriment.
(A) – renunciation of Australian citizenship was unnecessary
The applicant’s evidence does not establish that he was unable to find employment due to his dual citizenship. Whilst the letter from the Head of Security Operations at AWE indicates that the applicant may have been unsuccessful in an application for employment in 2013 on the basis that AWE only accepted sole British nationals “for the role for which he applied”, the letter also stated “we may consider dual nationality for certain roles” which indicates that the applicant could have obtained alternative employment as an IT contractor without renouncing his Australian citizenship.
The letter from Johnny Mercer MP, Ministry of Defence confirms that dual nationals are in principle eligible for employment by the Ministry of Defence and that only some roles at the AWE are restricted to British citizens who do not hold dual nationality.
3At the time the applicant renounced his Australian citizenship, he was not the subject of any conditional offer of employment requiring sole nationality.2 At face value, the applicant’s evidence is that he renounced his Australian citizen because he thought he may be able to obtain a more secure or better-paying job. However, this was entirely speculative.
Critically, the applicant’s evidence suggests the role the applicant held between January 2015 (after he had renounced his citizenship) until September 2019 was not restricted to dual nationals. Email correspondence dated 6 July 2021 from that employer’s recruitment agency, Computacenter, states that the dual nationality was a discretionary requirement. A further email from Computacenter dated 7 July 2021 states the issue of an applicant’s dual nationality “would be looked at a case by case basis, and differing factors would be taken into account. Things like who the person has contact with from their dual national country”.
The respondent contends the applicant has merely demonstrated that some of his desired roles around the time he renounced his Australian citizenship were unavailable to him due to his dual nationality. Especially in circumstances where, after the renunciation, the applicant worked for almost five years in a desired role, in which he made use of his high-level security clearance, and which did not preclude dual nationals, it was not necessary for the applicant to renounce his Australian citizenship. It follows that the act of renunciation was not done in order to avoid suffering significant hardship or detriment.
(B) – the applicant’s choice to pursue specialist employment
Even if the applicant was prevented by his dual nationality from obtaining employment in certain roles in the defence IT sector, a niche sector within the IT field, this did not amount to an “inability to obtain employment” as described in CPI 12 (T3, 72). He was not prevented from obtaining employment in, for example, a different IT sector.
The respondent contends that a failure to realise highly specific career aspirations does not amount to hardship or detriment in circumstances where the applicant was qualified to pursue a wide range of employment. Adopting the words of CPI 12 (T3, 72), it is relevant that the skills the applicant had at the time of renunciation were not only relevant to the highly specialised defence IT sector, but “could have been utilised in alternative employment not requiring sole citizenship”.
By the applicant’s own account, he did not suffer an “inability” to work by virtue of holding Australian citizenship at the time of renunciation. On the contrary, the applicant’s evidence is that he was employed as an IT contractor earning £294 per day at that time.3 Further, the applicant’s evidence is that he was granted a high-level top secret “developed vetting” security clearance in December 2013 (while he remained a dual national).4
The respondent contends the circumstances the applicant faced prior to renouncing his Australian citizenship cannot accurately be described as suffering hardship or detriment. Accordingly, by renouncing his citizenship in order to make himself as attractive as possible for certain niche roles, the applicant sought only to improve his circumstances, which did not amount to avoiding suffering significant hardship or detriment.
Conclusion
The respondent contends the evidence before the Tribunal does not establish either that the applicant could not have obtained his desired employment without renouncing his Australian citizenship or that he was required to renounce his Australian citizenship in order to obtain employment generally.
Accordingly, the respondent contends the applicant did not renounce his Australian citizenship in order to avoid suffering significant hardship or detriment, and therefore does not satisfy the requirements of s 29(2)(a)(i).
THE HEARING
The hearing in this matter was held on 7 October 2020 and conducted using the Microsoft Teams platform.
The applicant gave oral evidence.
The applicant informed the Tribunal that he was educated at an Adelaide secondary school where he completed his studies in 2000. In 2001, he commenced a Bachelor of Arts degree at Flinders University. While studying, he was working with a touring bus company to support himself financially. He had a strong interest in information technology (“IT”). After six months, he gave up his studies and worked for the bus company for several years, fulfilling a variety of functions including IT work in relation to reservations for the company’s operations. He undertook a Microsoft Certified Windows course arranged by Drake International. Due to his family’s British heritage, namely the fact that he had a grandmother born in the United Kingdom, he wished to visit that country.
The applicant first visited England in October 2003 and was issued an ancestry visa by the British government. The applicant remained in England, undertaking a variety of temporary positions not all of which involved IT. Some roles were entry-level positions, the duties of which required the applicant to repair computers.
In December 2012 the applicant commenced working with Fujitsu and remained with that organisation for approximately one year. The position was a permanent position for which he required a relatively high security clearance, the process of which was carried out over a period of one to two months. Dual nationality was not a bar to the temporary employment with Fujitsu. In September 2013, the Applicant applied for British nationality after the expiry of his original ancestry visa, which had been extended for a further period of five years.
The applicant alleged that he could not deal with the pressure which he experienced in his then-current role and felt that he needed to expand his learning. Accordingly, he entered into the contract with LA International which provided IT contractors to organisations such as the British Broadcasting Commission (BBC) and Microsoft. The work was predicated upon a three-month term, which may be renewed at end of the term for a further three-months ongoing.
In March 2014, he applied for renunciation of his Australian citizenship. The applicant stated that he did so because he was aware that more stable and secure positions with the British government, especially the Department of Defence, required sole British nationality as a condition of their engagement and that dual nationality was not acceptable. The applicant stated that he had found it difficult to support himself when undertaking temporary employment, and was fearful for the future. The applicant stated that he was struggling to find work and was very concerned for his future. He said that in the type of industry in which he wished to work, where he would obtain a clearance and more stable and secure employment, his dual nationality would be an obstacle to gaining such employment.
The applicant stated that the defence sector offered greater variety of roles and opportunities whereas the private sector was mainly operated by short contracts without security or stability. The applicant is currently employed, doing IT work with the Department of Work and Pensions (UK).
At the time of renouncing his Australian citizenship he was engaged by LA International. In 2015 he joined Computacenter for a renewable three-month contract on a daily rate of approximate £315 per day. He remained engaged by that firm for four and a half years.
In July 2021, the applicant received emails from Computacenter in response to his enquiry to try to verify his understanding that dual nationality would be an obstacle if he was to try and work at the FCDO, which was involved with certain security matters. The email responses indicated that the issue of dual nationality it was a discretionary matter.
Whilst engaged by LA International he was contracted to AWE, a government-owned contractor,-operated organisation. AWE is operated by joint venture of three major corporations; namely, Jacobs Engineering, Lockheed Martin and Serco.
At the hearing of this application, the applicant relied upon a letter dated 22 March 2021 from Johnny Mercer MP of the Ministry of Defence addressed to the applicant’s local member of Parliament, concerning an enquiry made by the applicant to seek further evidence that dual nationality could have posed a bar to him working in the security sector. The relevant part of the letter states:
I would like to explain that British citizens who hold dual nationality are in principle eligible for employment by the Ministry of Defence and its defence contractors, subject to achieving the appropriate level of security clearance. However, there are some areas in the Defence Nuclear Enterprise where, in order to meet international treaty obligations and regulation, roles are restricted to British citizens who do not hold dual nationality. This Is especially true of the sensitive work carried out at the Atomic Weapons Establishment where the United Kingdom’s warheads are designed, manufactured and maintained as a sovereign capability.
CROSS EXAMINATION
The applicant was cross-examined concerning his decision to renounce his Australian citizenship. The applicant agreed that the correspondence which he produced for the hearing did not indicate that he was necessarily ineligible for certain roles: the only roles for which he might be ineligible were some roles involving the security sector. The applicant said that when he was working for Computacentre, it was not a requirement that he have solely British nationality.
The applicant was questioned whether his decision to renounce his Australian citizenship was purely speculative, in that there is no tangible benefit to be derived from his decision. The applicant stated that he had been looking for work prior to renouncing his Australian citizenship and that he had been rejected, by AWE for example, because of his dual citizenship status. Accordingly, the applicant believed that the renunciation of his Australian citizenship would render him an eligible candidate for employment in the security sector, and would help to avoid the possibility that he might be excluded from engagement in such sector
The applicant acknowledged that he had been successful in obtaining employment which did not require sole citizenship. It was put to him that not being able to be engaged in a niche area of employment did not constitute hardship, as he still had the option of engaging in other roles such as his previous work with Fujitsu, where he had held a high-level security clearance. The applicant responded that in his experience, he would have had more opportunities for employment with sole nationality. In the private sector, the IT positions available to him were usually lower paid and had less job security. The applicant sought a specific involvement in his chosen field of IT, working within the defence area. He stated that he had always had an interest in the defence area because of his grandfather’s war service and also because of concerns for the safety and security of the United Kingdom.
FINDINGS
The Australian Citizenship [Policy Statement] outlines the overarching legislative requirements for the process of becoming an Australian citizen (either automatically or by application), the rights and responsibilities of an Australian citizen, the circumstances in which a person’s Australian citizenship may cease, evidence or strands citizenship, personal identifiers of persons applying for Australian citizenship and other citizenship related matters.
Clause 3.2 thereof states:
Australian citizenship is a privilege requiring a continuous commitment to Australia. Australian citizenship is a common bond, involving reciprocal rights and obligations.
It follows that renunciation of Australian citizenship is a significant act, and signifies that the person applying to surrender citizenship thereby rejects the rights of citizenship including loyalty to Australia and its people, sharing Australian democratic belief, respecting the Australian rights and liberties, and upholding and obeying the laws of Australia.
Renunciation of Australian citizenship may therefore be only undertaken for the specified statutory reason set out in section 33 of the Act. In the present application, the applicant relies upon the fact that he would have suffered significant hardship or disadvantage or detriment as a reason to renounce his Australian citizenship the sole issue for determination is whether the criteria under the Act have been satisfied.
As referred to above, the Policy Statement refers to dictionary definitions, inter alia, of “significant”, “hardship” and “detriment”. CPI-12 also refers to common scenarios, providing as an example:
Claimed inability to obtain work in Australia on the grounds that the employment is restricted to Australian citizens, and that comparable or alternative employment is not reasonably available.
Many employment opportunities with the Australian Public Service (APS) and other Commonwealth employers require a person to be an Australian citizen, or to become an Australian citizen before they can be appointed permanently. Comparable employment opportunities outside the Commonwealth may be limited, depending on the skills of the applicant. However, the potential hardship or disadvantage:
may be considered a significant hardship or disadvantage/detriment, where a person is unable to obtain employment and therefore unable to adequately financially support themselves or their family due to their citizenship status;
may not be significant where comparable work can be obtained as a contractor or the applicant could be engaged as an employee on probation until such time as they are eligible for Australian citizenship.
Where hardship or disadvantage is being claimed in relation to his or her employment, consideration should be given to what evidence the applicant can produce as to potential employment, for example evidence of a conditional employment offer based on their being a citizen.
Accordingly, based upon the example provided in the relevant CPI, and applying the circumstances to that of the applicant, to separate criteria must be established, namely that the opportunities for employment were restricted in the United Kingdom because of his dual nationality; and secondly, that there was no comparable or alternative employment reasonably available to him.
The CPI-12 also provides examples where an application is made to resume citizenship in circumstances where it is claimed the applicant raises the issue of significant hardship or detriment. One such ground is stated as follows:
Inability to obtain employment without renouncing Australian citizenship. To resume Australian citizenship in reliance upon the “avoid suffering significant hardship or detriment” limb of section 29(2)(a)(i) of the Act, the applicant would need to demonstrate they renounced Australian citizenship to avoid significant hardship or detriment.
It may be relevant for the decision-maker to consider whether the skills the person had at the time of enunciation were only relevant to the employment they were engaging overseas or whether they could have been utilised in alternative employment not requiring sole citizenship.
It may also be relevant for the applicant to be able to provide a letter from the employer attesting that the applicant could not be a dual citizenship when commencing employment. Such a letter may be available on the applicant’s renunciation file.
The Tribunal accepts that to obtain certain positions that require a high security clearance in the United Kingdom civil service, especially for Reserved Posts, sole British nationality is an essential requirement. The applicant renounced his citizenship in March 2014 to become eligible for such roles. He was thereafter engaged in other roles where dual nationality was not an obstacle to his employment. He remained in employment from 2015 to 2019. There is evidence that some employment opportunities to the applicant were restricted by not being a sole British national, even though he was undertaking work involving the need for a high level security clearance. The applicant’s ‘Application for Renunciation of Australian Citizenship’ dated 16 March 2014 states the reason for announcing his Australian citizenship was to “avoid hardship within career.”
At the time the applicant renounced his Australian citizenship, the applicant believed he was avoiding hardship within his career, by being potentially becoming eligible for engagement in positions which he wished to apply for, and avoiding accepting temporary positions which did not offer long term stable employment.
The applicant said that he had been very concerned for his ability to support himself; that his temporary work engagements left him with a sense of insecurity, and that he felt disadvantaged from obtaining work in the defence industry which would have provided security and stability. It was these considerations that caused him to enquire of the steps he could take to limit his nationality to be solely British. The applicant was told that he could renounce his citizenship on the basis of hardship, which he felt applied in his circumstances. He obtained no legal advice concerning the impact of renunciation, nor of the ease of regaining his Australian citizenship should he wish to. It was solely out of the fear that he would be unemployed and unable to support himself that he decided to renounce his Australian citizenship.
Section 29(2) of the Act empowers a person to apply for Australian citizenship again if the renunciation was made “to avoid suffering significant hardship or detriment”. There is no further definition of these words in the Act, although they are expanded upon in CPI 12.The respondent submits that the applicant was not suffering hardship at the time he renounced his Australian citizenship because he was employed at that time, and there were positions available for him in which he worked where dual nationality was not an issue.
The evidence establishes that the particular industry in which the applicant aspired to work was the British defence industry. The correspondence from AWE establishes that working in some roles in that organisation required solely British nationality. That is the organisation to which the applicant had applied and had been rejected, although the Tribunal notes that there does not appear to be any evidence before it, other than the applicant’s assertions, that this was on the basis of the Applicant’s dual nationality. Other roles within the British government were available and did not require solely British nationality. However, the applicant wished to work as a full-time employee in the IT specialty in the British defence industry in which he had a particular interest.
The evidence of the applicant confirms that other positions may have been available to him in the private and public sector but without the financial security and stability which defence would offered to him.
The term “to avoid suffering significant hardship or detriment” does not necessarily require that significant hardship or detriment must be experienced at the time of the renunciation. The words “to avoid” imports the meaning that the hardship or detriment may be experienced concurrently; but it also imports an interpretation that the renunciation is made prospectively to avoid significant hardship or detriment. In Newton v Federal TaxationCommissioner (1959) 98 CLR 2, Lord Denning in the Privy Council said of section 260 of the Income Tax and Social Services Contribution Assessment Act 1936 (Cth) which limited any arrangement for the purpose of “avoiding“ any duty or taxation liability:
Their Lordships… are clearly of opinion that the word “avoid” is used in its ordinary sense – in the sense in which a person is said to avoid something which is about to happen to him. He takes steps to get out of the way of it. It is this meaning of “avoid” which gives the clue to the meaning of “liability imposed”. To “avoid a liability imposed” on you means to take steps to get out of the reach of a liability which is about to fall on you.
The Tribunal accepts the applicant’s evidence that he held a genuine fear that he would suffer significant hardship or detriment if he did not revoke his Australian citizenship, namely that he would never be able to work in his chosen field of employment and would continue to suffer from financial instability and insecurity.
To live in financial instability and job uncertainty might be regarded as a “detriment” but section 29 of the act requires the must be a “significant” detriment. The apprehension of the detriment does not constitute a “significant detriment”.
No evidence has been produced to establish that the applicant would have been denied IT employment in other industries in the United Kingdom, nor in other places of employment within the United Kingdom defence industry. The evidence suggests that dual citizenship would not have been a bar to employment in other United Kingdom government departments and that in respect of the Defence Department, it was a discretionary requirement except for the top-secret work conducted by AWE. Indeed, the applicant held a security clearance when engaged by Fujitsu. The applicant’s work there to have covered a broad spectrum of security -related matters, and was comparable in nature – the notable difference being that it was a contractor role and not a permanent, ongoing role.
There is no evidence, other than the applicant’s assertions, that the applicant would experience difficulty in obtaining work outside of the defence sector. His submission is essentially that he preferred the option of a potential employment in the highly secure section of UK defence industry. But a mere preference for employment in a particular sector does not lead to the conclusion that significant detriment would result if the applicant were not so engaged.
The Tribunal also notes that is, since the applicant renounced his Australian citizenship, he did not obtain employment in the defence sector, and instead has been employed in a different UK government department.
The extract below from the second reading speech from the Citizenship Bill upon which the Act is founded indicates that resumption of an Australian citizen’s citizenship should be readily achievable provided that the applicant for resumption is of good character. The relevant portion of the speech provides:
In future, the only requirements for resumption will be that the person is of good character and, as indicated earlier, is not a security risk. Changes to the deprivation powers include:
• the introduction of provisions to revoke citizenship acquired as a result of third party fraud; and
• strengthening of the revocation provisions relating to serious criminal offences.
Australian citizenship is of course a very valuable status. While the incidence of fraud in the case load is low, the risk of fraud is a constant. The existing provisions deal with fraud committed by an applicant. Unfortunately, there is currently no power to revoke citizenship where that status was acquired as a result of fraud by a third party—for example, a government official or migration agent. The changes will mean that consideration can be given to revoke citizenship in all cases involving fraud.
Existing law provides for revocation when a dual citizen has been convicted, after applying for citizenship, of a serious criminal offence committed before their application was approved. The extension of this provision to include serious criminal offences committed between approval of an application and when the person actually becomes a citizen reflects the existing power to cancel the approval of an application if the person is no longer of good character.
Such an intention is also reflected in the CPIs, which suggests that flexibility should be applied in considering an application for resumption of citizenship. However, the Policy Statement is the prime standard which must guide the Tribunal in its determination, unless there are cogent reasons not to do so: Re Drake and Minister for Immigration and Ethnic Affairs (No 2) [1979] AATA 179; (1979) 2 ALD 634.
The Tribunal notes that in Sirote and Minister for Immigration and Border Protection (Citizenship) [2015] AATA 564, the Tribunal accepted that the applicant who had renounced Australian citizenship did so only in order to take up a particular offer of employment it was essential that the applicant that matter obtain a security clearance to undertake the work which required renunciation of citizenship. In the present proceedings, the facts differ. The applicant already held a security clearance in the United Kingdom and worked in the IT industry in England.
The Tribunal is not satisfied that the applicant meets the requirements of s 29(2)(a)(i) of the Act.
DECISION
The Tribunal is satisfied that such conclusion gives rise to an outcome that, for the purposes of section 29(2)(a)(i) of the Act, the applicant did not cease to be an Australian citizenship under section 33 in order to avoid suffering significant hardship or detriment.
The Tribunal affirms the decision under review.
I certify that the preceding 71 (seventy-one) paragraphs are a true copy of the reasons for the decision herein of The Hon. Deputy President Dennis Cowdroy, AO QC
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Associate
Dated: 14 December 2021
Date(s) of hearing: 7 October 2021 Applicant: Self-represented Solicitors for the Respondent: Mr E Taylor, Mills Oakley Lawyers
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