Robinson and Minister for Immigration and Multicultural and Indigenous Affairs

[2005] AATA 8

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2005] AATA 8

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No N2004/814

GENERAL ADMINISTRATIVE DIVISION		)
Re		Sandra Joi Robinson

Applicant

And Minister for Immigration and Multicultural and Indigenous Affairs

Respondent

DECISION

Tribunal Professor GD Walker, Deputy President

Date7 January 2005

PlaceSydney

Decision The decision under review is affirmed.

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

Professor GD Walker
  Deputy President  

CATCHWORDS

IMMIGRATION – citizenship – resumption of Australian citizenship – application for declaration of resumption of citizenship – found no record that applicant had acquired Australian citizenship – examination of the circumstances surrounding the applicant’s attendance, with her twin sister, at the immigration office in Chifley Square and the completion of an application for citizenship – applicant moved to the United States in 1970 where she remained as a permanent resident until 2001 – held that it would appear there was a clerical error in dealing the application by the applicant and her twin sister – held that a detailed search by DIMIA reveals the applicant was not registered as an Australian citizen and therefore is not eligible to resume citizenship  – decision under review is affirmed.

Australian Citizenship Act 1948 ss 23AA, 23AA(1)(a), 23AA(1)(a)(i)

Commonwealth Electoral Act 1918

Nationality and Citizenship Act 1948 ss12, 13(1)

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

REASONS FOR DECISION

7 January 2005	Professor GD Walker, Deputy President
Summary

1.      The applicant, Sandra Joi Robinson, who is aged 56 and a citizen of the United States of America, came to Australia with her family from England in 1952.  She went to the United States in 1970 where she remained as a permanent resident until 2001.  She became a citizen of the United States by naturalisation.  Mrs Robinson returned to Australia in April 2003 and on 12 May 2003 lodged a declaration to resume Australian citizenship.

2.      The respondent, the Minister for Immigration and Multicultural and Indigenous Affairs, states that there is no record of Mrs Robinson having acquired Australian citizenship and therefore refused her application for a declaration of resumption of Australian citizenship.  This is the decision to be reviewed by the tribunal.

Background

3.      The applicant, Mrs Sandra Robinson, (and her twin sister Roslyn Gay Murray (nee Willey)), was born in Dorchester, England, on 13 May 1948 and is aged 56 (T17).    On 10 April 1952 she arrived in Australia with her mother, sister and brother, her father, Colin Willey, having been drafted, on 31 July 1950, to the Fourth Submarine Flotilla.  This was a unit of the British navy that was at that time based at Balmoral, New South Wales.  He was subsequently released in Australia on 15 June 1953 upon discharge from the Royal Navy.  On 7 November 1966, Mrs Robinson enlisted in the Royal Australian Navy, in which she served as a WRAN Sick Berth Attendant until 6 September 1968 (T p37).

4.      On 20 June 1969, Mrs Robinson allegedly applied for a certificate of registration as an Australian citizen.  On 27 April 1970, she was listed on the Commonwealth electoral roll.

5.      On 6 January 1970, Mrs Robinson moved to the United States where she subsequently married an American citizen.    On 17 August 2001, Mrs Robinson was naturalised as a citizen of the United States.

6.      On 16 April 2003, Mrs Robinson returned to Australia (T9 p31).  On 12 May 2003, she lodged an application for a declaration of resumption of Australian citizenship with the Department of Immigration and Multicultural and Indigenous Affairs (“DIMIA”) (T14 p43).  On 19 May 2003 and 26 June 2003, Mrs Robinson lodged with DIMIA a statutory declaration made by her and a copy of her Certificate of Service from the Royal Australian Navy, in support of her application (T12 and T10 respectively).  

7.      On 30 June 2003, Mrs Robinson returned to the United States, having been refused an extension to her visitor visa (T p34).

8.      On 23 August 2003, an officer of the Citizenship Unit of DIMIA informed Mrs Robinson that in order to resume citizenship, she was required to provide evidence of her former possession of Australian citizenship within 28 days of receipt of the letter (T7 p29). 

9. On 2 June 2004, a delegate of the respondent, having considered the submissions made by Mrs Robinson and having searched the department’s databases and the citizenship central records, decided to refuse Mrs Robinson’s application to resume Australian citizenship because Mrs Robinson does not meet the requirements of s 23AA(1)(a) of the Australian Citizenship Act 1948 (“the Act”) because she was not able to prove that she had ever acquired Australian citizenship.    On 5 July 2004, Mrs Robinson lodged an application for a review of that decision by the tribunal.

10. At the hearing, the applicant was represented by Christopher Levingston, solicitor, of Christopher Levingston & Associates, solicitors, and the respondent was represented by Patrick Reynolds, solicitor, of Clayton Utz, solicitors. The evidence before the tribunal comprised the documents produced pursuant to s 37 of the Administrative Appeals Tribunal Act 1975 (“the T Documents”), taken into evidence as Exhibit R1, together with the evidence produced by the parties at the hearing. For the applicant, Mrs Robinson, Roslyn Murray and Colin Willey gave oral evidence in person and for the respondent, Charles Wood gave evidence by telephone from Canberra.

Relevant Law and Policy

11.     The relevant legislation is the Australian Citizenship Act 1948. Section 23AA provides:

Persons may resume citizenship lost in certain circumstances

(1)       Where:

(a)        a person:

(i) has done a voluntary and formal act, other than marriage, by virtue of which the person acquired the nationality or citizenship of a country other than Australia; or

(ii)       has done any act or thing:

(A) the sole or dominant purpose of which; and

(B)       the effect of which;

was or is to acquire the nationality or citizenship of a foreign country;

being an act or thing that resulted in the person ceasing to be an Australian citizen;

(b) the person furnishes to the Minister a statement, in writing, to the effect that:

(i) if the person had not done the act or thing, the person would have suffered significant hardship or detriment; or

(ii) at the time when the person did the act or thing the person did not know that he or she would, as a consequence of doing the act or thing, cease to be an Australian citizen;

and also stating that the person:

(iii) has been present in Australia (otherwise than as a prohibited immigrant, as a prohibited non-citizen, as an illegal entrant, as an unlawful 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 less than 2 years;

(iv)      intends that:

(A) if the person again becomes an Australian citizen and is residing in Australia at the time when the person so becomes an Australian citizen, the person will continue to reside in Australia after so becoming an Australian citizen; or

(B) if the person again becomes an Australian citizen and is not residing in Australia at the time when the person so becomes an Australian citizen, the person will commence to reside in Australia after so becoming an Australian citizen and before the expiration of the period of 3 years commencing on the day on which the statement is made; and

(v) has maintained a close and continuing association with Australia; and

(c) the person furnishes to the Minister together with the statement a declaration in the prescribed form that the person wishes to resume Australian citizenship;

the Minister may, in the Minister's discretion, if the Minister is satisfied:

(d)       as to the truth of the matters contained in the statement; and

(e) in a case where the person has claimed that, if the person had not done the act or thing that resulted in the person ceasing to be an Australian citizen, the person would have suffered hardship or detriment of an economic nature—that the person's circumstances were such as to compel the person to do that act or thing; and

(f)        that the person is of good character;

register the declaration in the prescribed manner and, upon the registration of the declaration, the person making the declaration again becomes an Australian citizen.

(2) 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.

12. Section 23AA(1) of the Act thereby gives the Minister discretion, subject to the satisfaction of specified criteria, to enable registration of a declaration, the effect of which is the resumption of Australian citizenship.

13. To be granted citizenship in 1969, a British subject (being any person born within her Majesty’s dominions) was required to apply for a certificate of registration under s 12 of the then Nationality and Citizenship Act 1948 (“the 1948 Act”).  Section 13 of that Act provided:

13(1)A person to whom a certificate of registration as an Australian citizen has been granted shall be an Australian citizen by registration as from the date upon which the certificate is granted.

Evidence

14.     An important part of the evidence in this case related to a visit that Mrs Robinson, together with her father, Mr Colin Willey, and her twin sister Roslyn, made to the Immigration Department at the Commonwealth Centre, then located at Chifley Square, Sydney, on 20 June 1969.  The sisters wished to travel to the United States and the United Kingdom on an extended holiday.  As they were British-born, a necessary precondition to applying for Australian passports was obtaining registration as Australian citizens.

15.     Both sisters and their father attested that when they presented themselves at the Immigration Department counter, Sandra and Roslyn were each given two forms to complete: form M122 (Application For Registration As An Australian Citizen), and form M126 (Application For Naturalization Or Registration – Personal Statement By Applicant).  Each sister remembered completing her own two forms and returning them to the man behind the counter, who took them away.  There are minor differences of recollection about the extent to which their father helped them complete the forms, but the three witnesses are unanimous in saying that each signed her own forms.  Roslyn’s form was tendered in evidence as Exhibit A5.  It bears the hand-written immigration reference number N69/64365. 

16.     Shortly afterwards, the family received advice that in view of the political situation at the time and of the sisters’ wish to keep open the possibility of working in the United Kingdom, it might be preferable if they travelled on United Kingdom passports, to which they were also entitled.  They thereupon applied for, and obtained, United Kingdom passports and abandoned the idea of applying for Australian passports. They also forgot about their applications for Australian citizenship because they were no longer necessary.  Later that year Roslyn departed aboard SS “Oriana” and Sandra aboard SS “Arcadia”. 

17.     On 21 July 1969 a letter (Exhibit A4) was sent to the applicant’s sister Roslyn enclosing her certificate of registration as an Australian citizen, which was dated 14 July 1969 (Exhibit A3). 

18.     Public records show that both sisters’ names appeared on the Commonwealth electoral roll for the first time in 1970.  Mr Willey related how he went to the National Archives Centre at Chester Hill and requested a search for Sandra’s forms M122 and M126.  He also asked for a search of the immigration reference numbers around N69/64365.  No record was found of an application by Sandra Willey (now Robinson).

19.     Mr Willey did not recall seeing Exhibit A4 or Roslyn’s certificate of registration when it arrived, and pointed out that no-one in the family was any longer concerned about the registration process at that time as the girls had applied for, and obtained, United Kingdom passports.  If they had wished to proceed with the idea of applying for Australian passports, they would certainly have noticed that no letter corresponding to Exhibit A4 had been received in relation to Sandra, and would have taken the matter further.  From at least that time on, however, everyone in the family had assumed that both Sandra and Roslyn were Australian citizens.  Sandra acted on that belief in applying for enrolment on the electoral roll, although at that time it was possible for British subjects (I do not think the designation “United Kingdom citizen” existed at that time) who were not Australian citizens to become enrolled as voters.

20.     Charles Vincent Wood gave evidence for the respondent, both by affidavit (Exhibit R3) and orally by telephone.  Mr Wood has worked at the Department of Immigration and Multicultural and Indigenous Affairs since 23 April 1979 and is acting director of the citizenship services section.  Mr Wood stated that since December 1998, grants of Australian citizenship have been recorded by the department on the database titled “Integrated Client Services Environment” (ICSE).  Grants made before 1998, which were recorded in the predecessor to ICSE, the “Citizenship Automated System” (CAS), or on microfilm, have been transferred to ICSE.

21.     A record of the grant of Australian citizenship is also made on the individual’s citizenship paper file.  A list of paper files kept by the department is recorded on the database “TRIM”.  Office Services Australia (OSA) also keeps records of old paper files that predate the introduction of TRIM and are not recorded in TRIM.

22.     In order to verify a person’s claim to be an Australian citizen by grant, the consolidated citizenship records on ICSE are checked.  If there is no record on ICSE, checks of the “Citizenship Index Enquiry” (CIE) system, which contains CAS citizenship records, citizenship microfilm or for a file paper record on the individual are conducted.  Searches of ICSE, CIE and citizenship microfilm records disclosed no record of the applicant, Mrs Robinson (nee Willey), having acquired Australian citizenship.  Searches of TRIM and searches conducted by OSA produced the same result.  At the hearing Mr Wood conceded that, especially in the days before electronic data processing, it might be possible for a record of a citizenship grant to be lost, although he was not aware of any specific instance of such a loss.

23.     It was plain at the hearing that both sisters and their father were telling the truth according to the best of their recollection.  Such minor and immaterial discrepancies as did exist are readily explicable by the lapse of time.  None of the three applicant’s witnesses thought they were going to be expected to remember the details of their visit to the department’s Chifley Square office 35 years later.

24.     The most likely explanation for what happened is a somewhat understandable clerical oversight.  The department’s office received two simultaneous applications that were identical in almost every respect: surname, address, date and place of birth, sex and (as the applicants were identical twins) personal description.  The only difference was in the given names.  It is conceivable that the officer processing the forms overlooked that difference and concluded that there were somehow two sets of forms relating to the same person.  That would explain why no separate reference number was allocated to Sandra’s application.

Application of the Law and Findings of Fact

25. As was stated above, the issue for the tribunal to determine is whether pursuant to s 23AA(1) of the Act, Mrs Robinson has ever had Australian citizenship. There is no dispute that on 17 August 2001, Mrs Robinson, by the formal and voluntary act of naturalisation, acquired citizenship of the United States of America (T16), thus satisfying s 23AA(1)(a)(i) of the Act. Mrs Robinson contends that she acquired Australian citizenship in July 1969, having applied for a certificate of registration at the department’s office on 20 June 1969 in company with her twin sister and father. It is contended that her being enrolled on the electoral roll and also serving in the Royal Australian Navy is proof of her registration. The respondent submitted this was not proof, as before amendments to the Commonwealth Electoral Act 1918 which came into effect on 1 May 1987, British nationals were able to exercise some of the rights and privileges that only Australian citizens are now able to exercise, including enrolling to vote and enlisting in the navy.  In any event the applicant‘s naval service antedated her putative application for registration of 20 June 1969.

26.     I note the decision of Senior Member JA Kiosoglous MBE in Re Playford and Minister for Immigration and Multicultural Affairs [2001] AATA 15 where he said that the Act does not contain any hardship provisions and, inter alia, at paragraph 38:

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.

27.     At paragraph 35, Senior Member Kiosoglous noted:

Neither [applicant] has properly been an Australian citizen, and one cannot cease to be something that one has never been in the first place …

28. The evidence shows that although Mrs Robinson applied for registration under s 12 of the then Nationality and Citizenship Act 1948, registration was never effected, probably as a result of her application having been confused with that of her twin sister, which was lodged simultaneously. Section 13(1) of the 1948 Act made it plain, however, that it was the fact of registration, and only that fact, which gave applicants under s 12 the status of Australian citizen. It therefore follows inevitably that Mrs Robinson has never held Australian citizenship and consequently is not eligible to resume it pursuant to s 23AA of the Australian Citizenship Act 1948.  The tribunal has no discretionary power to alter that result.  The applicant’s solicitor, Mr Levingston, concurs with the inevitability of that result, but points out that because of her service in, and honourable discharge from, the Royal Australian Navy, Mrs Robinson is entitled to Australian citizenship on that basis.  Presumably he will so advise Mrs Robinson.

29.     The decision under review must be affirmed.

I certify that the 29 preceding paragraphs are a true copy of the reasons for the decision herein of Professor GD Walker, Deputy President

Signed:         .....................................................................................
  Associate

Date of Hearing  20 December 2004
Date of Decision  7 January 2005

Solicitor for the Applicant          Mr C Levingston, Christopher Levingston & Associates

Solicitor for the Respondent     Mr P Reynolds, Clayton Utz