Sirote and Minister for Immigration and Border Protection (Citizenship)
[2015] AATA 564
•5 August 2015
Sirote and Minister for Immigration and Border Protection (Citizenship) [2015] AATA 564 (5 August 2015)
Division GENERAL DIVISION File Number(s)
2014/5084
Re
Ashley Sirote
APPLICANT
And
Minister for Immigration and Border Protection
RESPONDENT
DECISION
Tribunal Professor Robert Deutsch, Deputy President Date 5 August 2015 Place Sydney The Tribunal sets aside the Minister’s delegate’s decision pursuant to section 43(1)(a) of the Administrative Appeals Tribunal Act 1975 and remits the matter to the Minister for reconsideration with the direction that section 29(2)(a) of the Australian Citizenship Act 2007 is satisfied.
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Professor Robert Deutsch, Deputy President
CATCHWORDS
CITIZENSHIP – application for resumption of citizenship – whether Australian citizenship had been ceased to avoid suffering significant hardship or detriment – decision set aside and remitted
LEGISLATION
Australian Citizenship Act 2007 (Cth) s 29
CASES
Re Kamahli and Minister for Immigration and Citizenship (2012) 133 ALD 606; [2012] AATA 730
Re Paras and Minister for Immigration and Citizenship [2012] AATA 915
Re Watagodakumbura and Minister for Immigration and Citizenship [2010] AATA 738
SECONDARY MATERIALS
Australian Citizenship Instructions
REASONS FOR DECISION
Professor Robert Deutsch, Deputy President
5 August 2015
FACTUAL BACKGROUND
The Applicant was born in the United States of America (USA) in January 1986 and became an Australian citizen by descent very soon thereafter. The documents do not disclose when she returned to Australia to live but she says that she grew up in Australia. The Applicant obtained a Bachelor degree from the Australian Catholic University.
In June 2007, shortly after graduating, she moved to the USA and eventually secured employment with a firm called Northrop Grumman. According to the Applicant, the conditions of that employment were that the Applicant had to hold a security clearance before taking up the employment. In order to secure security clearance she could not continue to hold her Australian citizenship.
The Applicant filed an undated statement with the Tribunal on 20 January 2015 to which she attached as Appendix 2 the Job Description for the employment in question. One of the requirements for that job is listed as “Candidate must be able to obtain a Secret clearance.”
I am satisfied as an evidentiary matter that this document reflects the job description and the requirement of the job in question.
In September 2007 the Applicant submitted an Application for renunciation of Australian citizenship. Her application was approved on 1 October 2008, with the effect that she ceased to be an Australian citizen on that date.
On 25 August 2014, the Applicant made an application to resume her Australian citizenship and on 12 September 2014 her application was refused by a delegate of the Respondent.
On 2 October 2014, the Applicant applied to this Tribunal for a review of the Respondent’s decision.
The hearing took place on 25 June 2015 and the Applicant represented herself assisted by her mother.
RELEVANT LEGISLATION AND POLICY
Section 29(2) of the Australian Citizenship Act 2007 (the Act) relevantly provides:
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, 34A or 35 may apply to become an Australian citizen again under Subdivision A, AA or B.
In determining whether a person renounced Australian citizenship “to avoid suffering significant hardship or detriment” for the purposes of section 29(2)(a)(i) of the Act, the Tribunal must have regard to the Australian Citizenship Instructions (ACIs) which must be applied in a flexible manner.
The meaning of suffering significant hardship or detriment is considered at paragraph 7.2.2 of the ACIs which provides that:
Example of hardship or detriment for this provision may include:
·a requirement to pay higher taxes (for example where higher taxes may prevent a person being able to afford fundamental assets such as a family home)
·denial of the usual marital rights in relation to tax and inheritance laws on the death of a spouse or otherwise
·ineligibility to obtain a driver’s licence which may affect a person’s employment prospects
·denial of, or significant restrictions on access to social security benefits
·ineligibility to undertake formal courses of study and/or obtain certain education qualifications
·inability to access loans from financial institutions
·ineligibility to purchase or retain property
·loss of cultural or family heritage
·inability to allow their children to participate fully in the social, political and cultural life of their other country of residence
·difficulties in obtaining visas particularly when required to travel to several countries, frequently, in the course of employment
·inability for families to be treated as a unit when family members hold different passports
·requirement to apply regularly for residency and work permits.
The above list is by no means exhaustive. Where reasons are given that are not included in the above list, consideration should be given to whether the hardship or detriment is at a similar level to any of the examples. Decision makers must take full consideration as to the merits of each individual case.
THE POSITION OF THE PARTIES
The Applicant contends that she is eligible to resume Australian citizenship because she renounced her Australian citizenship so as to avoid suffering significant hardship or detriment as required by s 29(2)(a)(i) of the Act.
The Respondent contends that the Applicant is not eligible to resume Australian citizenship because the Applicant did not renounce her Australian citizenship to avoid suffering significant hardship or detriment as required by s 29(2)(a)(i).
CONSIDERATION
The meaning of suffering significant hardship or detriment
Clearly, based on the way the arguments were framed before the Tribunal for the Applicant to be eligible for resumption of citizenship, the Tribunal must be satisfied that she renounced her Australian citizenship in order to avoid suffering significant hardship or detriment, as required by s 29(2)(a)(i) of the Act.
The meaning of “suffering significant hardship or detriment” is not defined in the Act. In such circumstances the phrase should be given its ordinary meaning. The Macquarie Dictionary defines these words as follows:
(a)“significant” means “important; of consequence”;
(b)“hardship” means “a condition that bears hard upon one; severe toil, trial, oppression, or need”; and
(c)“detriment” means “loss, damage, or injury”.
There is very limited case law which relevantly considers the application of the “significant hardship or detriment” test. The Tribunal was referred to two cases both decided by this Tribunal.
The first decision is Re Watagodakumbura and Minister for Immigration and Citizenship [2010] AATA 738.
In that case, Senior Member Friedman made the following helpful remarks regarding resuming citizenship which had been renounced:
Now, applying the facts of this matter to the relevant legislation, which I have already said was section 29(2)(a)(i), about whether he renounced citizenship to avoid suffering significant hardship or detriment, I was taken to the explanatory memorandum for the legislation which gives a background of the previous Act which was section 23AA, AB, A and B, and the explanatory memorandum says:
The resumption provisions within the old Act... have been combined into ... subclauses (2) and (3). The eligibility [criteria] under these subsections has been expanded from the old Act to provide for those who renounce[d] the[ir] Australian citizenship for reasons of hardship or detriment (for example, in order to obtain ... security clearance to secure employment in the country of their other residence) to resume their Australian citizenship.
…
So that when you look at the reasons set out in the legislation and in the explanatory memorandum, and the Australian citizenship instructions, this provision of the Act about resuming citizenship requires the applicant to have renounced his citizenship in order to avoid the suffering of the financial hardship or detriment, and I don’t believe that accessing the superannuation comes within that. To me an example of the application of this section of the Act would be where a country says to a person, “You cannot get a job, you cannot get a house, and you cannot do a number of things after what is listed in the Australian citizenship instructions because you have citizenship of, say, Australia.” Thereby renouncing citizenship would be a way of avoiding the significant financial hardship and detriment that would flow from the suffering that a person would endure by holding Australian citizenship.
So it’s not just a question, in my view, of saying, “Well, I am in financial difficulty, I will renounce my citizenship to get some money to reduce my financial difficulty.” It is stronger than that. It is a matter of saying, “Well, I had to renounce my citizenship because, without that, I would have suffered so much by reason of not being able to do certain things.” In this case, although I found that the applicant was in financial difficulty, that, to me, is not sufficient to say that it comes within the provisions of the Act. And as I have said, furthermore, I don’t believe that he suffered significant financial hardship or detriment anyway.
The second decision the Tribunal was referred to was Re Paras and Minister for Immigration and Citizenship [2012] AATA 915 where the applicant did not satisfy the Tribunal member that renunciation was on the grounds of significant hardship or detriment because her motivation was to be seen as Greek and not Australian and her perception that her relatives disapproved of her Australian citizenship.
The meaning of the related phrase “significant hardship or disadvantage” and its relevance
There is a similar phrase namely, “significant hardship or disadvantage”, which appears elsewhere in the Act. The phrase is used in a different context namely in relation to conferral of Australian citizenship rather than renunciation and it has received more consideration by courts and this Tribunal.
In that context the Minister has noted the Tribunal’s consideration in Re Kamahli and Minister for Immigration and Citizenship (2012) 133 ALD 606; [2012] AATA 730 of an applicant’s claim that he would suffer significant hardship or disadvantage if he did not acquire Australian citizenship because of his inability to gain employment with the Australian Defence Force and the difficulty for him of international travel. Ultimately the Tribunal in that case determined that the applicant would not suffer significant hardship or disadvantage, and in particular noted that it was relevant that the applicant may avail himself of other employment opportunities that did not require Australian citizenship.
The Minister argues that the test in Kamahli differs from the relevant test in the present case, in that it relates to “disadvantage” rather than “detriment”. Having regard to the dictionary meaning of “disadvantage” (namely, “absence or deprivation of advantage; any unfavourable circumstance or condition”), when compared to the dictionary meaning of “detriment” (which requires a “loss, damage, or injury”), the Minister argues that it would seem to be the case that what the Applicant must demonstrate in the current context to satisfy the relevant test is necessarily more onerous and in particular requires a demonstration of loss or damage by reason of her Australian citizenship, rather than an absence or deprivation of advantage.
I do not necessarily accept the argument put by the Minister which would have the consequence of making it harder to secure a resumption of citizenship than it is to secure a conferral of citizenship. I do not believe that there is anything in the Act or the Explanatory memorandum to suggest that that is the intention of the legislature.
Why did the Applicant renounce her Australian citizenship?
In Part B of her “Application for renunciation of Australian citizenship” dated 10 September 2007 (see T4-42), the Applicant states that her reasons for renouncing Australian citizenship are:
I recently moved to the USA, where I am also a citizen, to pursue a career in my field of study - IT... Soon after moving over here, I received a great job offer from a highly regarded government support contractor. This job requires a security clearance. In order to be cleared with the US Government for this job I can no longer hold my Australian citizenship.
At the hearing, the Applicant indicated that she regretted using the phrase “Soon after moving here, I received a great job offer.” In her verbal evidence the Applicant suggests that the reality was quite different and that there were few if any other jobs available and she was running out of money and was actively and regularly seeking the assistance of her parents.
There are some troubling aspects to the case which has been put by the Applicant.
First, the only contemporaneous documentation available to the Tribunal is the Application for renunciation referred to previously and the email exchanges between the Applicant and her relatives. In the former document, there is no suggestion there was any problem securing employment. As for the email exchanges, these are heavily redacted so as a matter of evidence must be questionable as to what the full context might have revealed.
Secondly, the Applicant’s situation is not specifically contemplated as an example of significant hardship or detriment contained within the ACIs.
On this second point, the lack of specific reference to security or secret clearance as an example is clearly not an insurmountable problem as the list is not exhaustive as is recognised in the ACIs themselves. The list does, however, refer to the inability to secure a driver’s licence and specifically refers to how that may affect a person’s employment prospects. The lack of security clearance and its effect on a person’s employment prospects would seem to be a case of a similar, and perhaps even stronger, nature.
On balance, while I accept that the Applicant’s case suffers from some evidentiary problems as outlined above, I am satisfied that the Applicant was required to renounce her Australian citizenship in order to obtain her US security (secret) clearance and thereby secure her employment with Northrop Grumman.
I am also satisfied that that gives rise to an outcome such that for the purposes of section 29(2)(a)(i) of the Act the Applicant ceased to be an Australian citizen under section 33 in order to avoid suffering significant hardship or detriment.
CONCLUSION
The Tribunal sets aside the Minister’s delegate’s decision pursuant to section 43(1)(a) of the Administrative Appeals Tribunal Act 1975 and remits the matter to the Minister for reconsideration with the direction that section 29(2)(a) of the Act is satisfied.
I certify that the preceding 32 (thirty-two) paragraphs are a true copy of the reasons for the decision herein of Professor Robert Deutsch, Deputy President .......................[sgd].......................................
Associate
Dated 5 August 2015
Date of hearing 25 June 2015 Applicant In person Solicitors for the Respondent Ms A Graham, Clayton Utz
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