Skase and Minister for Immigration and Multicultural and Indigenous Affairs
[2005] AATA 308
•8 April 2005
CATCHWORDS – CITIZENSHIP – review of decision refusing application to resume Australian citizenship – Australian citizenship ceased on acquisition of Dominican citizenship – whether applicant knew that cessation of Australian citizenship was a consequence of assuming Dominican citizenship – meaning of “know” – whether satisfied as to truth of applicant’s statement in support of resumption of Australian citizenship – exercise of discretion – relevance of good character in exercise of discretion – parameters of discretion – decision set aside.
Australian Citizenship Act 1948 ss. 13(1), 17, 17(1), 18, 19, 21, 23AA and 23AA(1)
Australian Citizenship Legislation Amendment Act 2002
Administrative Appeals Tribunal Act 1975 ss. 33(1) and 37
Passports Act 1938 ss. 6AA, 7 and 8
Browne v Dunn (1893) 6 R 67
Coal and Allied Operations Pty Ltd v Australian Industrial Relations Commission and Others (2000) 203 CLR 194
Consolidated Edison Co v National Labour Relations Board (1938) 305 US 197
Dolan v Australian and Overseas Telecommunications Corporation (1993) 42 FCR 206; 114 ALR 231
Drake v Minister for Immigration and Ethnic Affairs (1979) 24 ALR 577; 2 ALD 60
Hooi v Brophy (1984) 52 ALR 710
Jones v Dunkel (1959) 101 CLR 298
Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24
R v Australian Broadcasting Tribunal; Ex parte 2HD Pty Ltd (1979) 144 CLR 45
R v War Pensions Entitlement Appeal Tribunal; Ex parte Bott (1933) 50 CLR 228
RCA Corporation v Custom Cleared Sales Pty Ltd (1978) 19 ALR 123
Re Drake and Minister for Immigration and Ethnic Affairs (No. 2) (1979) 2 ALD 634
Re Perring and Australian Postal Corporation (1993) 31 ALD 693
Re Pochi and Minister for Immigration and Ethnic Affairs (1977) 2 ALD 33
Re Pochi v Minister for Immigration and Ethnic Affairs (1979) 26 ALR 247; 36 FLR 482
Re Postiglione and Minister for Immigration and Multicultural Affairs (2002) 34 AAR 359
Re Skase and Minister for Immigration and Multicultural and Indigenous Affairs [2005] AATA 200
Taylor’s Central Garages (Exeter) Ltd v Roper [1951] WN (Eng) 383
Vines v Djordjevitch (1955) 91 CLR 512
Water Conservation and Irrigation Commission (NSW) v Browning (1947) 74 CLR 492
DECISION AND REASONS FOR DECISION [2005] AATA 308
ADMINISTRATIVE APPEALS TRIBUNAL )
) V2004/1140
GENERAL ADMINISTRATIVE DIVISION )
Re JO-ANNE NANETTE SKASE
Applicant
AndMINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
Respondent
DECISION
Tribunal: Deputy President S A Forgie
Date: 8 April 2005
Place: Melbourne
Decision:The Tribunal:
1.sets aside the decision of the respondent dated 25 August 2004; and
2.substitutes a decision that the applicant’s declaration of declaration of desire to resume Australian citizenship be registered under s. 23AA of the Australian Citizenship Act 1948.
S A FORGIE
Deputy President
REASONS FOR DECISION
Mrs Skase was born in Melbourne on 24 May 1941. Her late husband[1], Mr Christopher Charles Skase, headed the Qintex group of companies (“Qintex”). After the failure of Qintex, Mr and Mrs Skase left Australia in 1990 and took up residence in Majorca. Both held Australian passports and used them for their travel. For many years, the liquidator of Qintex and the Australian Government endeavoured to secure Mr Skase’s return to Australia to account for the failure of Qintex and for the losses incurred by its shareholders as well as to face various charges against him. In 1998, the Minister for Foreign Affairs and Trade cancelled Mr Skase’s Australian passport. His Department advised Mr Skase of the cancellation. On 22 June 1998 and while she was still living in Majorca, the Minister for Legal Affairs, Immigration and Labour in the Commonwealth of Dominica (“Dominica”) granted both Mr and Mrs Skase a Certificate of Naturalisation. They subsequently became Dominican citizens and were issued with Dominican passports. On 1 September 1998, an officer of the Department of Foreign Affairs and Trade (“DFAT”) cancelled Mrs Skase’s Australian passport on the basis that she had become a Dominican citizen.
[1] Mr Skase died on 6 August 2001
On 11 July 2002, Mrs Skase applied to the respondent, the Minister for Citizenship and Multicultural Affairs (“Minister”), to register her declaration of desire to resume Australian citizenship under s. 23AA of the Australian Citizenship Act 1948 (“Act”). The Minister refused Mrs Skase’s application on 25 August 2004. I have decided that Mrs Skase’s declaration of desire to resume Australian citizenship should be registered. Consequently, I have set the Minister’s decision aside and substituted a decision to that effect.
THE ISSUES
There are two issues in this case. The first is whether Mrs Skase knew that, by obtaining a Dominican passport, she obtained Dominican citizenship with the consequence that her Australian citizenship ceased. If she did not, the second issue is whether the discretion given in s. 23AA(1) should be exercised to register her declaration of desire to resume Australian citizenship.
LEGISLATIVE BACKGROUND
Before its amendment with effect from 4 April 2002[2], the Act provided that a person may lose Australian citizenship in five ways[3]. Of relevance in this case is the way prescribed in s. 17(1). It provided:
“A person, being an Australian citizen who has attained the age of 18 years, who does any act or thing:
(a)the sole or dominant purpose of which; and
(b)the effect of which;
is to acquire the nationality or citizenship of a foreign country, shall, upon that acquisition, cease to be an Australian citizen.”[4]
[2] Australian Citizenship Legislation Amendment Act 2002
[3] Act, ss. 17 (acquisition of the citizenship or nationality of a country other than Australia before 4 April 2002, 18 (renunciation of citizenship), 19 (loss of citizenship by reason of service in the armed forces of an enemy country), 21 (deprivation of citizenship by the Minister) and 23 (in certain circumstances, being a child of a person whose Australian citizenship ceases under ss. 18 or 19).
[4] s. 17(1) does not apply in relation to an act of marriage: s. 17(2)
The Act also provided, and continues to provide, that a person could resume Australian citizenship in certain circumstances[5]. Of relevance in this case is s. 23AA. To come within that section, a person either:
“(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”.[6]
[5] ss. 23AA-23B
[6] s. 23AA(1)(a)
A person meeting either of those placita may furnish the Minister with a declaration that he or she wishes to resume Australian citizenship (“declaration”)[7]. At the same time, the person must furnish the Minister with a written statement that he or she has been present in Australia for a period of, or for periods aggregating to, not less than two years[8] and has maintained a close and continuing association with Australia[9]. The person must state that he or she intends to reside in Australia if he or she becomes an Australian citizen[10]. The document must include a statement:
“… to the effect that:
(i)if the person had not done the act or thing, the person would have suffered a 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;
…”[11]
[7] s. 23AA(1)(c)
[8] s. 23AA(1)(b)(iii)
[9] s. 23AA(1)(b)(v)
[10] s. 23AA(1)(b)(iv)
[11] s. 23AA(1)(b)
When he is given the statement and the declaration, the Minister may, in her discretion, register the declaration:
“… 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 the act or thing; and
(f)that the person is of good character”.[12]
THE EVIDENCE
[12] s. 23AA(1)(d), (e) and (f)
Life in Australia
Mrs Skase said that she and her late husband married in 1978. They had been married two years before his business activities started to become quite a significant part of their lives. His business empire grew and developed during the 1980s. In cross-examination, Mrs Skase disagreed with the proposition that she and her husband worked closely “… in all facets of the business”. She worked as his secretary but did not participate in board meetings. When Mr Tracey QC, counsel for the Minister, suggested to her that she had used those words in an interview with Derryn Hinch, Mrs Skase continued to deny that this was so. She worked with her husband as his secretary; she worked closely with him all day. Mrs Skase said that she did not go to board meetings or meetings when decisions were made. In the early 1980s, she did not travel with him but did later. In later years, she travelled with him frequently but did not go with him to business meetings. She managed his papers and worked on the aircraft. On one occasion that she could recall, she became a guarantor for a family company of which she and her husband were directors. When asked in cross-examination if she was closely involved in the Mirage developments, Mrs Skase replied “not really”; they had very highly skilled experts in every aspect of the developments. She played a part but they had experts.
When asked if she was aware that Qintex had become “bankrupt”, Mrs Skase acknowledged that she was. She agreed that she has very strong views on the subject and those views are informed by her views of events that led to the collapse of Qintex. When the company collapsed, they left Australia because her husband could no longer work here. He had an obligation to seek work.
Living in Spain before obtaining Dominican citizenship
In her statement, Mrs Skase said that she and her husband moved to Spain to live in 1990. For the next 11 or 12 years, they lived in Puerto d’Andrailx. The Spanish Government gave them residency visas on the basis that they were Australian citizens with Australian passports. Mrs Skase renewed her passport in February 1993 when she applied for a frequent traveller passport with a larger number of pages than a standard passport.
Their first residency visas enabled them to remain for two years. They then had to report to the Police Headquarters in Palma De Mallorca to renew their residency visas for a further two years. Their third residency visas were for five years. They were then permitted to remain permanently.
In 1998, Mrs Skase said, her husband received a letter from the Australian Embassy advising him that his Australian passport had been cancelled. He was asked to return his passport but he did not do so. Some weeks after he received this letter, Mrs Skase continued in her statement, she and her husband went to the Police Headquarters to renew their residency visas. The Spanish police seized his Australian passport. Mrs Skase understands that they did so as a result of a request made by Australia. As a result of the seizure, her husband’s residency visa was suspended. Her passport, however, was not seized and her residency visa was renewed. Later, after her third visit to renew her residency visa, Mrs Skase was granted a permanent residency visa.
In her statement, Mrs Skase said that her husband renounced his Australian citizenship two or three days[13] after the Spanish police had seized his Australian passport. He did so before a Notary Public. Mrs Skase explained what followed:
“… We knew from speaking to our Spanish lawyers that you could not be stateless if you wanted to obtain a residency visa in Spain. Accordingly, Christopher, and some of his friends, began investigating where he could get a passport from. As it turned out, it was possible to purchase a passport for the Commonwealth of Dominica. So that he would once again be able to comply with Spanish law, and would not be considered stateless, Christopher began the process of applying for a Dominican passport.”[14]
[13] Mrs Skase corrected her statement made in her statement at [7] that her husband renounced his Australian citizenship the day after the Spanish police seized his Australian passport.
[14] Exhibit D at [7]
In her evidence, Mrs Skase said that her husband was overwhelmingly sad and angry when he received the letter advising him that his passport had been cancelled. Mrs Skase said that she was not aware that he intended to renounce his Australian citizenship and found out that he had done so later on the day he did so. She viewed her husband’s action with some puzzlement and as an act of bravado. As to what would come of it, she did not know. In cross-examination, she said that her husband did not give her a reason why he had renounced his Australian citizenship and she did not ask him. She came to know that her husband needed alternative citizenship and that without it Spain would not renew his residency visa.
Becoming a citizen of Dominica
In her statement, Mrs Skase said that, until the application was put in front of her, she did not know that she, as well as her husband, would be getting a Dominican passport. Her husband “… was organising all that sort of thing and … [they] didn’t really discuss it.”[15]
[15] Exhibit D at [8]
In cross-examination, Mrs Skase said that she was aware during the early 1990s that there were repeated attempts to extradite her husband to Australia. It was a very significant issue for both of them. They fought the extradition on medical grounds. Her husband obtained legal advice and sometimes she knew what it was. It was an important matter for both of them. They discussed it when they needed to but not constantly or frequently. Mrs Skase said that she knew that her husband’s continued residence in Spain depended on his maintaining a current residency visa. Both she and her husband knew in early 1998 that their Spanish visas had to be renewed and that they would not be renewed if they were stateless persons. She did not have a problem as her residency visa was renewed. At the same time, she agreed that they both had an issue when his Australian passport was confiscated. She had no intention of leaving him.
Mrs Skase emphasised that her husband did not renounce his Australian citizenship until after he had received notification that his Australian passport had been cancelled and his passport had physically been taken from him at police headquarters. Their visit to police headquarters had taken place approximately two months after he was told of his passport’s cancellation. He understood that without a passport he would not be given a residency visa. She returned home after the visit but understood that her husband met his Spanish lawyers. Mrs Skase understood that the lawyers told him that he needed citizenship. Her husband told her of that. When asked whether to obtain the citizenship of another country, she thought that she would have both citizenship and a passport, Mrs Skase replied that she did not know but the requirements of the Spanish lawyers was that her husband get a passport; not citizenship. The reference to “our Spanish lawyers” to whom Mr and Mrs Skase spoke[16] was, Mrs Skase said, a reference to her husband’s lawyers. They spoke with him and he told her what was said. They always referred to themselves as “we” when they were talking in their married life. The lawyers came to the house and one was a close personal friend. Her husband would try to explain a thought to her if he thought she did not understand. She is “pretty sure” that she found out that he needed a passport through her husband. The lawyer might have asked her whether her husband had told her that he needed another passport. The “friends” with whom her husband began investigating where he could obtain a passport might have included her son in law but she did not know. He consulted various people but he did not tell her.
[16] at [13] above from Exhibit D at [7]
Mrs Skase said in cross-examination that she did not know when she became aware that her husband had decided to purchase a Dominican passport; she could not be specific. She agreed that it had to be in the latter part of 1998. The figure that she heard for its price was $60,000 or $70,000 but did not specify the currency or whether it was for one passport or two. She thought that she knew that her husband was making arrangements.
In her oral evidence, Mrs Skase said that she “heard general chatter in the house” that Mr Skase’s advisers had told him that he should get another passport. In cross-examination, she said that she was not involved in the matter but became aware of it at some stage. She knew how to renew an Australian passport. It seemed to her that the process of obtaining a Dominican passport was simpler. It seemed that money was paid and a passport delivered but she played no part in the whole process. Mrs Skase did not recall applying for a Dominican passport. She did not recall providing a photograph of herself for the passport. The photograph of herself in the Dominican passport would have come from their office.
In giving evidence, she said that she could not remember when two men from Dominica arrived at the house. She thought it was two or 2½ months after her husband’s passport was seized. Up until the moment that they arrived, she said that she was not aware that she was to receive a Dominican passport. She did not think that she had any need for a Dominican passport. Mrs Skase said that she was asked to sign a paper that might have been a receipt for the passport. She did not know why she signed it but thought that she did so because her husband wanted her to. She did not think that it had any effect on her Australian citizenship.
In granting Mrs Skase a Certificate of Naturalisation, the Minister for Legal Affairs, Immigration and Labour declared that, upon taking the oath or affirmation of allegiance in the manner required by the Constitution Act (Dominica), she would be a citizen of Dominica from 22 June 1998[17]. Although there is no documentary record of her taking the oath or affirmation of allegiance, Mrs Skase’s Dominican passport describes her national status as that of a Dominican citizen[18]. In cross-examination, Mrs Skase said that she had never seen a naturalisation certificate but then agreed that she had provided it to DIMIA[19]. She maintained that she did not recall taking an oath of allegiance. While she did not recall it, she said that she was not saying that it did not happen. She did not view taking a Dominican passport as being of any great consequence to her even though it was of consequence to her husband. Mrs Skase agreed that taking an oath of allegiance was not something that she would treat lightly.
[17] Documents lodged as required by s. 37 of the Administrative Appeals Tribunal Act 1975 (“AAT Act”) (“T documents”) at 30
[18] T documents at 41
[19] T documents at 30
She did recall signing the Dominican passport[20]. She was “pretty sure” that she signed it on the day that it was delivered because she had never seen the people from Dominica before the day on which they delivered the passports. The people from Dominica stayed at the house for an hour or so to deliver the passports. She said that she was not unduly surprised that they had arrived to deliver a passport to her husband but was surprised that there was one for her. Mrs Skase did not know whether she expressed her surprise at the time. Her husband had not told her that there would be a passport for her. She did not recall seeing the Certificate of Naturalisation that day and found it in an old file of her husband’s when she was in the process of renewing her Australian passport.
[20] T documents at 42
Mrs Skase said that she had never been to Dominica and had no intention of going.
When asked whether she knew the difference between having a passport and being a citizen, Mrs Skase replied that she did now. She had found out about it two weeks before the hearing. Before that, she had thought that they were one and the same. That was what she had thought in 1998.
In cross-examination, Mrs Skase denied that she knew that swearing an oath of allegiance to Dominica or by accepting Dominican citizenship, there would be implications for her Australian citizenship. She agreed that in 1998 when she gave the interview to the New Idea, she had no intention of returning to Australia. In the first paragraph of the interview, she expressed her love for Australia but she would never have left her husband and he could not return[21].
[21] Exhibit 1, at 1, column 1
The cancellation of Mrs Skase’s passport
DFAT produced a number of documents in response to a wide ranging summons to produce documents relating to Mrs Skase’s Australian passport. The summons specified five categories to be included in the documentation but was not limited to them. Among those categories were documents containing information relating to her use of her last held Australian passport after 22 June 1998 and documents relating to the cancellation of her passport.
Among the documents produced by DFAT to the summons was a cable dated 6 August 1998 to DFAT in Madrid from Canberra records:
“ We have obtained advice that confirms that the Government is able to cancel Mrs Skase’s passport. We would be required to afford her natural justice by formally notifying her that the passport was liable to be cancelled and extending her the opportunity to make representations on that. Although ultimately the Government should do that, the timing of doing so is critical, as it would alert the Skases to the fact that we are aware of the Dominican citizenships/passports, and that is something we do not wish to pursue at this time.”[22]
[22] Exhibit B, document 1 and also part of Exhibit C
DFAT held a copy of an advice given by the Australian Government Solicitor (“AGS”) to the Attorney-General’s Department on 6 August 1998[23]. The AGS advised that Mrs Skase’s passport had not been automatically cancelled by operation of law when she lost her Australian citizenship. It could be cancelled under s. 8 of the Passports Act 1938 (“Passports Act”).
[23] part of Exhibit C
There followed further cables dated 10 and 12 August 1998 in which there was discussion regarding whether Mrs Skase’s passport lost its validity as soon as she became a Dominican citizen. The correspondence reflected DFAT’s uncertainty as to the status of Mrs Skase’s passport:
“If a passport does not lose its validity when its holder loses his or her citizenship, it probably should. I suppose this means that we should cancel it rather than put an impound alert on PICS. On the other hand, if it loses its validity automatically, then presumably the act of cancellation becomes moot, and we should simply note on PICS that the passport is invalid.”[24]
Another paragraph in that cable sets out the DFAT officer’s understanding of the Department’s practice when he suggested a paragraph for inclusion in a document:
“‘Some (####) Australians lose their citizenship in any given year as a result of having made a voluntary act to acquire the citizenship of another country. When the Australian Government becomes aware of such act, it is usual for DIMA to place an impound alert on the Passport Information Control System (PICS). In practice, this does not prevent ongoing use of the passport in question, unless and until the holder seeks to re-enter Australia or presents the passport at an Australian diplomatic mission.’”[25]
[24] Cable dated 10 August 1998; part of Exhibit C
[25] Cable dated 10 August 1998; part of Exhibit C
DFAT made a Ministerial Submission to the Minister for Foreign Affairs and Trade (“MFAT”) on 13 August 1998 recommending that he not take any action at that time to cancel Mrs Skase’s passport[26]. This would avoid making Mr and Mrs Skase aware that the Australian Government knew that they had obtained Dominican citizenship. DOFA noted that it was usual to advise DIMIA when it received information that an Australian might have lost Australian citizenship. It usually did that so that DIMIA could place and impound notice on the Passports Information Control System. DOFA recommended that DIMIA not be told about Mrs Skase’s loss of citizenship at that time. This would enable Mrs Skase to continue using her Australian passport and reduce the possibility of any public disclosure of Mrs Skase’s citizenship status.[27] The Ministerial Submission was also addressed to Mr Fischer for his information and he marked it as “Noted” on 15 August 1998[28].
[26] Exhibit B, documents 2, 3 and 4.
[27] Exhibit B, documents 2, 3 and 4 at [1], [4] and [7]
[28] Exhibit B, document 5 at 3
A further Ministerial Submission from DFAT to the MFAT was undated but was signed by MFAT on 21 August 1998. DFAT advised MFAT that a “… consequence of the loss of Mrs Skase’s Australian citizenship is that she is no longer entitled to this Australian passport.”[29] It recommended that the MFAT approve DFAT’s advising DIMIA of Mrs Skase’s loss of citizenship and approve that the Australian Embassy in Madrid advise the Spanish authorities that the passport was no longer valid and that they return the passport to it should it come into its possession. MFAT agreed with both recommendations on 21 August 1998.[30] A cable from the Australian Embassy in Madrid advised DFAT on 24 August 1998 that the police in Majorca no longer held Mrs Skase’s passport[31].
[29] Exhibit B, document 10 at [3]
[30] Exhibit B, document 10 at 3
[31] Exhibit B, document 12
On 1 September 1998, an Approved Senior Officer appointed under s. 6AA of the Passports Act decided under s. 8(1) to cancel Mrs Skase’s passport on the grounds that she had lost her citizenship[32]. A fragment of an internal DOFA minute dated 1 September 1998 states that “The loss of Australian citizenship has resulted in the cancellation of Mrs ‘Pixie’ Skase’s Australian passport, (Christopher) Skase’s passport having already been cancelled by Mr Downer”[33]. A DOFA cable dated 16 September 1999 notes that “Mrs Skase remains in possession of a cancelled Australian passport”[34]. This was repeated in correspondence dated 31 January 2001 and addressed by the Australian High Commission in Bridgetown, Barbados, to Ministries of Foreign Affairs in countries in the Caribbean and in Bermuda. This reflected DOFA’s advice to its consular posts on 25 January 2001.
[32] Exhibit B, document 13
[33] part of Exhibit C
[34] part of Exhibit C
Mrs Skase’s attitude to and use of her Dominican and Australian passports
In her statement, Mrs Skase said:
“… I remember that when I actually got the passport, I didn’t do much more with it than put it in the top drawer next to my bed. It never occurred to me that my obtaining a Dominican passport might have consequences on the status of my Australian Citizenship. I did not think about what it would mean to have two different passports. As far as I was concerned, they were both true and valid but I considered myself an Australian Citizen.”[35]
[35] Exhibit D at [8]
The photocopied pages of Mrs Skase’s Dominican passport are not particularly clear. In so far as I am able to read them, they show[36]:
[36] T documents at 43-48
| Date | Departure from | Entry to |
| 18 November 1998 | Majorca | |
| 18 November 1998 | illegible (Britain) | |
| 6 January 1999 | Madrid | |
| 6 January 1999 | Southampton | |
| 19 January 1999 | Majorca | |
| 7 April 1999 | Majorca | |
| 7 April 1999 | illegible (Britain) | |
| 21 June 1999 | Majorca | |
| 21 June 1999 | Heathrow | |
| 17 July 1999 | Majorca | |
| 17 July 1999 | illegible (Britain) | |
| 1 November 1999 | Majorca | |
| 1 November 1999 | Heathrow | |
| 10 November 1999 | Majorca | |
| 9 January 2000 | Majorca | |
| 9 (illegible) 2000 | illegible (Britain) | |
| 6 October 2002 | Majorca | |
| 16 October 2002 | Majorca | |
| 16 October 2002 | Luton | |
| 1 November 2002 | Gatwick | |
| 8 November 2002 | Majorca | |
| 14 November 2002 | illegible (Majorca) |
Mrs Skase’s passport also contains two visas entitling her to multiple entries to countries that are signatories to the Schengen treaty. Spain is one of those signatories. The first was issued on 17 July 1998 in Kingston and was valid for a year. Mrs Skase has never been to Kingston or to Jamaica. The second was issued at London on 30 July 1999 and was valid for six months. In cross-examination, Mrs Skase could offer no explanation as to how the visa came to be in her Dominican passport in the first place, why it was there or why it was renewed.
In her statement, Mrs Skase said that she left Spain approximately a week after he husband died on 6 August 2001. She travelled to England with one of her daughters, Mrs Alexandra Buckham. Although she returned to Spain briefly to organise household matters, she spent the next 20 months in England.
In giving evidence, Mrs Skase said that she used her Dominican passport and did so particularly when she travelled to the United Kingdom. If she used her Australian passport, she could only stay three months but, if she used her Dominican passport, she could stay for a period up to six months.
Mrs Skase also said that she used her Australian passport. She used it to travel to the USA after 11 September 2001 and, without difficulty, gained entry using it. In cross-examination, Mrs Skase said that she had used her Australian passport on three occasions in the early 1990s to traverse France when she drove her husband for treatment in Switzerland. Between 1993 and 1998, she might have used her Australian passport twice a year to travel to the United Kingdom.
In cross-examination, Mrs Skase said that she had travelled to the USA in February 2002 but had not travelled anywhere other than the United Kingdom in the period 1998 to 2001.
Mrs Skase said that she did not have access to Australian newspapers when in Majorca. Until shown it by her counsel in preparing her case, she had never seen the report of an interview with her husband in the Daily Telegraph[37]. She had not been aware of her husband’s referring to herself as a “former Australian” and had never described herself in that way.
[37] see [57] below
In cross-examination, Mrs Skase agreed that she had not travelled to Australia until late in 2004. She had not done so as her husband had been very ill for many years and she was his principal carer. Even so, she agreed that she had made frequent trips outside Majorca but none to Australia.
The New Idea interview
In its issue dated 12 December 1998, New Idea published an interview with Mrs Skase. There is no mention in the article as to the date on which Mrs Skase was interviewed. There is, though, reference to her being 57 years of age. No reference is made to the cancellation of her passport or that of her husband. The only reference to Mr Skase’s inability to travel appears early in the article and is contrasted with her freedom to do so:
“ While Christopher is unable to travel because of the extradition warrants for his arrest, Pixie[[38]] can come and go as she pleases, and occasionally flies to London to visit her youngest daughter Alexandra, 28, and her husband Iain Buckham. …”[39]
[38] Mrs Skase’s first given name before it was changed by her parents by Deed Poll (T documents at 34)
[39] Exhibit 1 at 3, columns 1 and 2
As to whether or not she regarded herself and her husband as living in exile, Mrs Skase is reported as saying:
“‘To some degree I do consider we are in exile but I am not a prisoner, and we’ve never felt like prisoners. We consider ourselves very lucky. I’m happy, I’m content and I am free; we are free! We have a very free lifestyle and are accepted here, this is now our home.’”[40]
[40] Exhibit 1 at 3, column 3
The New Idea article refers further to Mrs Skase’s travelling away from Majorca:
“ Pixie’s determination to be by her husband’s side has come at some expense. She couldn’t attend either Alexandra’s wedding in London or Felicity’s in Melbourne, and couldn’t see her mother before she passed away.
She desperately misses her friends in Melbourne and, although she refuses to name them for fear they will suffer reprisal, says Australians would be amazed by the number of people who have remained supportive and visit.
‘We’ve sacrificed a lot but what we have, we have, and we have to go forward and make a life,’ she says.
‘It broke my heart when my mother died because I desperately wanted to see her and be there for Daddy, but I couldn’t. It was devastating.
‘I’d be a liar if I said I’ve never thought of coming back. There have been times when I’ve dearly wanted to. There’s nothing to stop me going anywhere. There’s never been an allegation against me. But we’ve come to understand – not accept, but understand the pressure to get Christopher back to Australia, and I won’t go without my husband. I won’t leave him.
‘I could have gone to Alex’s wedding, but I knew it would become a media circus. We heard a whisper that the Australian Government was going to pull a stunt to bring us back to Australia, so we thought it pointless and unfair on Alex. Alex is very understanding, but we were devastated not to go. What mother wouldn’t be?
‘I’ve talked about this a lot with my daughters. When each of the girls has married, I’ve said to them: “Your first commitment now is to your husband, it has to be to make your marriage work.”’”[41]
[41] Exhibit 1 at 4 and 5, column 1
The article concluded with the following passage:
“ Pixie dismisses the Government’s efforts to bring Christopher back as merely ‘interruptions’ and a ‘nuisance’.
‘I refuse to be weighed down with bitterness and anger. I feel like I am guilty for something I haven’t done.’
While the Government continues its fight to bring Christopher before an Australian court over the failure of its Qintex company and to account for the money owed to its shareholders, Pixie believes she will spend the rest of her days at La Noria. …
‘I loved Australia and would like to think that one day we would visit, but the attitude towards us is so tragic I don’t think we possibly could. We will never go back.”[42]
[42] Exhibit 1 at 5, column 2
Earlier in the article, Mrs Skase is reported as saying:
“ ‘What I find most annoying is that the Australian people read and digest everything that is said about us without ever questioning it. They think Christopher is a goddam crook because they’ve been beaten over the head with it by people like Amanda Vanstone for so many years. “Fugitive, fugitive, fugitive.” It has become very tiring.
…’”[43]
[43] Exhibit 1 at 5 columns 1 and 2
In cross-examination, Mrs Skase said that she could not recall saying that she would never go back to Australia. She was not saying that she had not said it. It was true at the time as her husband was so ill. She knew that her husband would never leave Majorca and she would never leave him.
Other interviews
Mrs Skase said that she had made statements to Derryn Hinch. When Derryn Hinch had asked her whether she would like to return to Australia, she had replied that she would like to visit but thought that she would not be leaving Spain as her husband was so sick and would not be leaving Spain. Mrs Skase agreed with Mr Tracey that she probably added that it was a pre-condition of her return that the Australian Government apologise for its treatment of her husband. She could not recall describing the apology she required as a “fulsome apology”.
With regard to her husband’s interview with the Daily Telegraph[44], Mrs Skase said that her husband had renounced his Australian citizenship by then. His renunciation was hypothetical as he had no intention of returning to Australia. She was not present when he gave the interview. He had told her of his renunciation only after he had done it.
[44] see [57] below
Events leading to Mrs Skase’s making a declaration
Mrs Skase said that she was aware her Australian passport was due to expire at the beginning of 2002. In her statement, she said that she was in England at the time and asked her daughter, Alexandra, to speak with the Australian High Commission in London about her having two passports. When her daughter was told that it was all right to have two passports, she asked that the Australian High Commission send her mother application forms for the renewal of her Australian passport. Mrs Skase said in her oral evidence that her daughter asked the officer at the Australian High Commission to check the advice and the advice was checked and confirmed.
In her oral evidence, Mrs Skase said that, before she spoke with her daughter, she had spoken to the wife of a friend, Mr David Evans. Mrs Evans had told her that her husband had discovered that his passport had been cancelled when he applied for its renewal. Mr Evans had become a citizen of the USA. When she heard that, Mrs Skase became aware that she had a problem but said that she had not been aware before that time.
In her letter dated 26 April 2002 to the Consular and Passport Office (“CPO”) at the Australian High Commission, Mrs Skase applied for a new Australian passport. She wrote:
“… my current Passport is due to expire shortly.
In making this application, I wish to declare that I do hold a secondary Passport. This Passport was applied for by my late husband without my knowledge due to the fact that we have been residing overseas for some time. My late husband applied for the Passport and I was, at the time, unaware of how this may affect my status as an Australian Citizen. I would be more than happy to forego my overseas Citizenship as I still consider myself first and foremost as an Australian Citizen. I have always done so and would gladly hand up this secondary Passport upon my Australian Passport being renewed.”[45]
The CPO acknowledged her letter on 22 May 2002 and advised her of the earlier cancellation of her passport[46]. It also advised her that her passport had been invalid since 22 June 1998 and of the steps she should take regarding her cancelled passport. Further, forms would be sent to her to enable her to apply for resumption of citizenship.
[45] part of Exhibit A
[46] part of Exhibit A
In her statement, Mrs Skase said that she was shocked to hear that her Australian passport had been cancelled. It was the first time that she had ever heard that her Australian passport was cancelled and the first time that she had heard that her taking out Dominican citizenship would affect her Australian citizenship. She continued:
“… It made no sense to me, as not only had I never received notification in the way that Christopher had but I had been using my Australian passport over the previous four years. In fact not only had I been travelling back and forth to England on my Australian passport but shortly after the September 11 terrorist attack on America in 2001, I have visited the USA using my Australian passport without a problem. It was the one I always used because I always have and always will consider myself to be an Australian Citizen.”[47]
[47] Exhibit D at [15]
In cross-examination, Mrs Skase agreed that her statement had been prepared by her lawyers on her instructions. It was sent by facsimile to her in Majorca at a public office and she read it quickly, she said. She agreed that she had used her Dominican passport for travel and had not always used her Australian passport. She thought that her statement had been incorrect “in a hair splitting way”, she supposed. Mrs Skase said that she should have said that she “usually” used her Australian passport because she did use it. She had used it a number of times. It was in Spain and she had last seen it when she took her Dominican passport from her drawer to travel to Australia. Mrs Skase agreed that she could have checked the accuracy of her statement against her Australian passport but she had been at a public office when she received the statement and did not do so.
Declaration of desire to resume Australian citizenship
In her declaration, Mrs Skase ticked the box to the effect that, at the time she acquired Dominican citizenship, she did not know that, as a consequence, she would cease to be an Australian citizen. She added:
“Until June 2002, I had never been informed of the loss of my Australian citizenship as a result of acquiring a passport of the Commonwealth of Dominica.”[48]
[48] part of Exhibit A; T documents at 26
Various correspondence took place between Mrs Skase and the Department and she responded to its requests for information. On 11 December 2002, the Department asked her to provide:
“at least two common use documents evidencing usage of your new name ie: drivers licence, passport; and
evidence of good character. The acceptable document of proof is a police check from all countries where you have resided in the past 10 years (except Australia).
An examination of the documentation supplied by you is our only means of determining whether you meet the requirements and are therefore entitled to resume Australian citizenship.”[49]
At the end of January or early in February 2003, Mrs Skase sent a certified copy of her Dominican passport and her driver’s licence as well as police reports from the United Kingdom and Spain.
[49] part of Exhibit A
The Minister’s decision
The Minister’s decision of 25 August 2004 was that “Ms Skase’s application to resume Australian citizenship is NOT TO BE REGISTERED for the following reasons: as per attached”[50]. The last three words were handwritten by the Minister and preceded his signature on a minute that had been sent to him by an officer of the Department of Immigration and Multicultural and Indigenous Affairs (“DIMIA”). The only document attached to the submission was a copy of an article written by Mr Humphrey Carter in the Daily Telegraph on 16 September 1998. In so far as it is relevant, it reads:
[50] T documents at 53
“‘Refer to me as a former Australian. It’s like when you take off smelly socks’ FUGITIVE businessman Christopher Skase has renounced his Australian citizenship saying it was like taking off a pair of smelly socks.
Skase, who bought a Commonwealth of Dominica passport after his Australian passport was cancelled earlier this year, says he should be referred to as a former Australian.
‘The tape has been cut, it’s adios amigos,’ he said.
…
I have a passport from the Commonwealth of Dominica valid for 10 years,’ he said. ‘I am now a citizen of the Commonwealth of Dominica and I am no longer a citizen of Australia.
‘It has been a fact for a few weeks now. Perhaps refer to me as a former Australian.
‘It’s like when you take off smelly socks. You don’t want tomorrow or next week or next month people talking about those smelly socks, because you took them off.
‘I would prefer not to be referred to incorrectly as an Australian because I am not.
…’”[51]
[51] T documents at 54
The Minister’s decision was communicated to Mrs Skase in a letter sent to her by a DIMIA officer. She wrote:
“Mr Hardgrave was not satisfied as to the truth of the statement made by Mrs Skase, pursuant to sub-paragraph 23AA(1)(b)(ii), that at the time she became a citizen of the Commonwealth of Dominica she was unaware that she would lose her Australian citizenship.
In this regard Mr Hardgrave noted that:
‘there was considerable media coverage of the Skase’s act in taking out Dominican citizenship. I make reference to one article which appeared in the Daily Telegraph of 16 September 1998 which clearly indicates that Mr Skase asks to be referred to as a former Australian citizen. It was clear that Mr Skase was well aware that his actions in taking out Domican citizenship would result in the loss of Australian citizenship. Given this, and the wide media coverage given to the Skases I am of the view that a reasonable person in these circumstances would draw the conclusion that Mrs Skase would also have known that the act of obtaining Dominican citizenship would result in the loss of her Australian citizenship.”[52]
[52] T documents at 8
In a letter dated 24 September 2004, Mrs Skase’s lawyers asked for a detailed statement of reasons for the Minister’s decision. An officer of DIMIA replied:
“The letter of 25 August 2004 … which informed you of the Minister’s decision in Mrs Skase’s case, provided full details of the reasons given by the Minister for his decision. Consequently, there is no other information on the reasons for the Minister’s decision that we can provide.”[53]
[53] T documents at 9.
CONSIDERATION
As I said in a related case[54], the Tribunal is based on the judicial model. Its role is to reach the correct decision in law and on the evidence. If more than one decision is correct, it must exercise its discretion to choose that which is preferable[55]. Although s. 33(1)(c) of the Administrative Appeals Tribunal Act 1975 provides that it is not bound by the rules of evidence and may inform itself on any matter as it may think fit, the Tribunal is, in practice, bound to follow the same principles that underpin the rules of evidence in the courts[56]. Whether they do so by applying the rules of evidence or they do so through a more flexible procedure both the courts and the Tribunal seek to make their decisions based on “… a body of proof that has rational probative force …”[57] while making “… every attempt … to administer substantial justice”[58]. By adopting this approach, the courts and the Tribunal seek to ensure that every case that they hear is resolved by reference to a set of standards and procedures that is consistently applied to all regardless of the parties involved, their wealth or influence in the community, regardless of the issue that is to be resolved and its consequences and regardless of the publicity that may or may not surround the case.
[54] Re Skase and Minister for Immigration and Multicultural and Indigenous Affairs [2005] AATA 200 at [9]
[55] Re Skase and Minister for Immigration and Multicultural and Indigenous Affairs at [10] and see Drake v Minister for Immigration and Ethnic Affairs (1979) 24 ALR 577; 2 ALD 60 at 589; 68, per Bowen CJ and Deane J and 599; 77 per Smithers J
[56] e.g. the Tribunal must generally follow the rule in Browne v Dunn (1893) 6 R 67 (Dolan v Australian and Overseas Telecommunications Corporation (1993) 42 FCR 206; 114 ALR 231), will pay little regard to hearsay evidence (Re Pochi and Minister for Immigration and Ethnic Affairs (1977) 2 ALD 33) and will generally apply the rule in Jones v Dunkel (1959) 101 CLR 298 (Re Perring and Australian Postal Corporation (1993) 31 ALD 693)
[57] Consolidated Edison Co v National Labour Relations Board (1938) 305 US 197 at 229 per Hughes CH cited with approval by Brennan J in Re Pochi v Minister for Immigration and Ethnic Affairs (1979) 26 ALR 247; 36 FLR 482 at 256; 492
[58] R v War Pensions Entitlement Appeal Tribunal; Ex parte Bott (1933) 50 CLR 228 at 256 cited with approval by Brennan J in Re Pochi v Minister for Immigration and Ethnic Affairs at 256; 492
What does the word “know” mean and how do I determine what another knows?
With these principles in mind, I turn to the case I must decide. The first issue to decide is what is meant by the word “know” as it is used in s. 23AA(1)(b)(ii). It is not a word that was focused on by counsel; perhaps because they thought that its meaning is clear and perhaps they are correct. Its ordinary meaning is “The fact of knowing; knowledge …”[59]. “Knowledge” means, in so far as it is relevant, “The state or fact of being aware or informed of something; cognizance. …”[60]. At law, the words “know” and “knowledge” have been refined. The authorities show that three types of knowledge have been accepted. The first is actual knowledge. Even then, “… there are gradations of knowledge or belief … The gradations extend from a slight inclination of opinion to complete assurance. …”[61]. The second type is knowledge that falls short of actual knowledge but arises in circumstances in which a person deliberately refrains from making enquiries because the answers may not be what he or she wants to hear. The third is constructive knowledge. That is knowledge that a person ought to have had, or could reasonably be expected to have had, based on the available information.[62]
[59] Shorter Oxford English Dictionary, 5th edition, 2002
[60] Shorter Oxford English Dictionary, 5th edition, 2002
[61] Vines v Djordjevitch (1955) 91 CLR 512 at 522 per Dixon CJ, McTiernan, Webb, Fullagar and Kitto JJ
[62] Taylor’s Central Garages (Exeter) Ltd v Roper [1951] WN (Eng) 383 at 384 per Devlin J quoted with approval in Hooi v Brophy (1984) 52 ALR 710 at 712-3 per Matheson J
Given the context in which it appears, it seems to me that the word “know” should be given its ordinary meaning. It appears on the context of an Act that regulates citizenship. Citizenship is a very important privilege that a country affords the members of its community. It is a privilege that, if conferred by circumstance of birth or otherwise, carries with it rights and obligations. It to be expected that it is a privilege that will be valued and not given away lightly or carelessly. In that context, it seems to me that s. 23AA(1)(b)(ii) requires that a person had actual knowledge that the consequence of his or her act or thing would be the cessation of Australian citizenship.
No-one can know what another person knows. All that the Tribunal can do is to consider the evidence. Some of that evidence is given in the form of the person’s evidence as to the state of his or her own knowledge. Other evidence is found in the person’s actions. Were they consistent with the state of knowledge that the person claims to have or are they more consistent with another state of mind? There may be evidence as to the opportunity that the person had to acquire the knowledge and whether the circumstances were such that it is reasonable to expect that another in those circumstances would have acquired that knowledge. This is not to suggest that an assessment is made on the basis of constructive knowledge. What a reasonable person may be expected to know is simply another aspect to be taken into consideration in assessing the whole of the evidence and drawing inference’s as to the particular person’s knowledge. That particular person’s knowledge may also be affected by circumstances that would not affect another or by disadvantages such as limited language and/or cognitive skills. There may well be other categories of evidence for “… the material from which the inference of the existence of actual knowledge can be inferred varies infinitely from case to case …”[63].
Did Mrs Skase know that a consequence of her accepting the Dominican passport or citizenship would be her ceasing to be an Australian citizen?
[63] RCA Corporation v Custom Cleared Sales Pty Ltd (1978) 19 ALR 123 at 125
A considerable amount of time was spent exploring the circumstances in which Mrs Skase came to acquire Dominican citizenship and to be in possession of a Dominican passport. Although Mrs Skase does not recall taking an oath or affirmation of allegiance, she does not deny that she did. I find that she did take that oath or affirmation for, without having done so, she would not have become a citizen of Dominica. On the basis of the description of her on the front page of her Dominican passport as a Dominican citizen, I find that she did become a Dominican citizen and so must have taken the oath or affirmation. Given that the Certificate of Naturalisation was given on 22 June 1998 and her Dominican passport was issued on 28 June 1998, she must have taken the oath or affirmation at some time between those two dates.
Mrs Skase was vague about the precise details of what happened during the time leading up to her receiving the Dominican passport. She was even vague about having received the Certificate of Naturalisation when she was the person who had given a copy of it to DIMIA. Mrs Skase said that she did not know that she was to receive a Dominican passport until the gentlemen from Dominica arrived at her house. She was challenged on this during cross-examination. She acknowledged that she knew that her husband was enquiring about obtaining Dominican citizenship and that he was making arrangements to do so. Mrs Skase, however, drew a distinction between her knowledge of her husband’s activities in that regard and her knowledge that she was to receive a Dominican passport. Her attention was drawn to the reference in her statement to “we”[64] when she spoke of discussions with Spanish lawyers. She was challenged about her claim that she did not recall taking an oath or affirmation of allegiance even though she agreed that it was not something that she would treat lightly.
[64] Exhibit D at [7] at [13] above
A reading of the full paragraph in which Mrs Skase refers to the discussions she and her husband had with the Spanish lawyers shows that they understood that a person could not be stateless and obtain a residency visa in Spain. There is no reference to her own position in her record of that conversation. There is no reference to her own position when she referred in the statement to her husband and his friends’ investigating the possibility of purchasing a Dominican passport. The whole focus of her statement was upon her husband’s citizenship and not upon her citizenship. That is understandable as she and her husband understood that he had renounced his Australian citizenship and he was a stateless person. That he had not renounced his Australian citizenship according to the Act[65] does not alter what I find to be their understanding of his status. On the basis of their understanding, he had an urgent need to obtain citizenship. My finding is supported not only by reference to Mrs Skase’s evidence but by the second line of the article published on 16 September 1998 in the Daily Telegraph referring to Mr Skase’s renouncing his Australian citizenship. The article goes on to state that Mr Skase had purchased a Dominican passport after his Australian passport had been cancelled. I find that Mr Skase did not regard his adopting Dominican citizenship as supplanting his Australian citizenship or leading to its cessation. In his mind, he had done that by his earlier act of renunciation.
[65] s. 18 of the Act provides that a person may lodge with the Minister a declaration in the prescribed form renouncing Australian citizenship. Subject to certain qualifications, the Minister is required to register the declaration. On registration, the person ceases to be an Australian citizen. The effect of the qualification in s. 18(6) is that the Minister may NOT register the declaration if to do so would render the person stateless. Cancellation of an Australian passport does not affect the holder’s status as an Australian citizen.
Mrs Skase was in a completely different position. She had not purported to renounce her Australian citizenship. There is no evidence that she was sought by Australian authorities or that she had committed any offences in Australia. She had no need to seek to become a citizen of another country. Her focus had not been on herself. Instead, her focus was on her husband’s need, as they saw it, to rectify his position by acquiring Dominican citizenship so that he would no longer be a stateless person. His situation was not her situation. I accept that she was not seeking or expecting to receive a Dominican passport. I accept that she did not know that she was to receive it until at or about the time the gentlemen from Dominica arrived at her home. At that time, I find, she did know that she had become a citizen of Dominica. Based on my earlier finding that she took the oath or affirmation of allegiance to Dominica some time between 22 and 28 June 1998 and her acceptance of its being a matter of some significance to do so, I find that she would have known at the same time that she had become a citizen of that country.
Her becoming a citizen of Dominica at that time meant that she lost her Australian citizenship at the same moment. That was the effect of s. 17 of the Act that has now been repealed. It is one thing for a person’s citizenship to cease by operation of law because a certain event has occurred and another for the person to know that this is what has happened. Mrs Skase said that she did not know. Mrs Skase’s evidence was that she first became aware that she might have a problem when Mrs Evans told her that her husband’s Australian passport had been cancelled after he became a citizen of the USA. Her knowledge that she had lost her Australian citizenship did not come until a little later in June 2002.
Certainly, she knew from the time that she held a Dominican passport that she held two passports. That in itself does not lead to the conclusion that she knew that she had lost Australian citizenship. It is a well known fact that some people hold two passports. Even in 1998, that did not necessarily mean that a person was not an Australian citizen. That is clear from s. 19 of the Act. It makes provision for the loss of Australian citizenship where a person is a national or citizen of another country and serves in the armed forces of that other country when it is at war with Australia. The basis of the provision is that a person may be a citizen of Australia while a citizen of another country. In light of the repealed s. 17 of the Act, that could only come about when a person was a citizen of that other country before becoming an Australian citizen[66]. It could not come about where an Australian citizen subsequently became the citizen of another country. That is clear to someone who chooses to read the legislation but it is debateable whether it was a matter of common knowledge. Given that it is well-known that some people have two passports, it is not reasonable to expect that a person would think to look at the niceties of the law governing citizenship.
[66] That a person can be a citizen of Australia and another country is also clear from s. 18 relating to renunciation of Australian citizenship.
Mrs Skase’s not needing Dominican citizenship is also some support in itself for her evidence for it was not something that she looked for and not something that she had given thought to in relation to herself before the gentlemen from Dominica arrived at their home.
Her actions support her statement to a large extent. I express a qualification because, in some aspects, I consider that she has somewhat exaggerated her evidence when she claimed to have always used her Australian passport because she always has and always will consider herself to be an Australian citizen[67]. Her statement that she always used her Australian passport was patently not so. Her statement was contradicted by the copy of the Dominican passport that she had herself given to DIMIA in response to its request for further information.
[67] Exhibit D at [15] at [53] above
Exaggerating one aspect, does not necessarily spoil the whole of a person’s evidence. Every aspect of a person’s evidence must be weighed and considered against every other aspect of that person’s evidence as well as against the whole of the evidence given in a case to determine the consistency of the whole. Mrs Skase stated that she had used her Australian passport to travel on one occasion to the USA, on three occasions through France to Switzerland and twice a year to the United Kingdom. Her evidence in this regard was not supported by reference to the Australian passport itself as she had left it in Majorca. It might have been expected that she would have brought it with her to Australia. By the same token, there is no evidence that she did not travel to those countries. That is to be expected because I find on the basis of the submission made to the MFAT that DIMIA would be unlikely to become aware of Mrs Skase’s movements to and from the USA and the United Kingdom using her Australian passport until she sought to re-enter Australia or presented her Australian passport at a diplomatic mission. Unlike the authorities in Bermuda and Caribbean countries, there is no evidence that DFAT had placed the authorities in the USA or in the United Kingdom that her Australian passport had been cancelled. Viewing the evidence overall, I do not consider that her exaggerating her use of her Australian passport should lead me to reject her evidence on the point in its entirety and to conclude that she did not use it at all. I have accepted that she has used her Australian passport on occasion since 1998.
The fact that she continued to use her Australian passport is evidence of Mrs Skase’s statement that she regarded herself as not having ceased to be an Australian citizen after she gained Dominican citizenship. Her Australian passport had been cancelled on 1 September 1998 but I find that she did not know that. In making this finding, I rely not only on her evidence but also on the absence of any evidence that DIMIA either directly or through DFAT notified her that it had been cancelled. On the material that I have been given, I find that the Australian authorities did not give her an opportunity to make any submission before DIMIA cancelled her passport and did not write to her after it had been cancelled. Its reasons for doing neither are not relevant in this case; only the fact that it did neither. By not being put on notice that her passport could be cancelled or that it had been cancelled meant that she was given no reason to think that she was not entitled to hold an Australian passport. After all, an Australian passport is issued to those who are Australian citizens[68]. No provision is made in the Passports Act for a passport to be issued to a person other than an Australian citizen.
[68] Passports Act 1938, s. 7(1)
Mrs Skase’s interview with New Idea is evidence of her seeing herself as a person who chose, either voluntarily or by force of circumstances, to remain away from Australia. It was at some personal cost as her choice meant that she could not visit her mother before her death, comfort her father or attend the marriage of one of her daughters. In essence, it was a choice that she made because she considered that it was a choice demanded by her loyalty to her husband, who she saw as a person falsely accused by the Australian authorities and its people. She speaks in terms of her loving Australia and desperately missing her friends in Melbourne but speaks in terms of their not being able to visit Australia and of their never going back. Having regard to the article as a whole, I find that it portrays an interview with a person who considers that she is free to visit Australia whenever she wants but chooses not to because her husband will not go there. It does not portray a person who considers that she has lost Australian citizenship and whose visits to this country would be dependent on her successfully applying for a visitor’s or other visa.
Having regard to all of these matters, I consider that Mrs Skase did not know that she would lose her Australian citizenship when she acquired Dominican citizenship. That means that I am satisfied as to the truth of the statement that she made under s. 23AA(1)(b)(ii) of the Act to the effect that she did not know that she would cease to be an Australian citizen when she acquired Australian citizenship.
As no other aspects of her statement were questioned, that means that I am satisfied as to the truth of the matters contained in Mrs Skase’s statement. Therefore, Mrs Skase meets the requirements of s. 23AA(1)(d). Section 23AA(1)(e) is not relevant. There is no suggestion in the Minister’s decision that Mrs Skase does not meet the requirements of s. 23AA(1)(f) that she be of good character. Mrs Skase’s good character was not a matter that was questioned by the Minister. Mr Tracey’s submissions regarding the exercise of the discretion were made solely in the context of the exercise of the discretion and did not raise the issue of good character. In light of that and for the sake of completeness, I find on the evidence that I have been given that Mrs Skase is of good character. Her exaggeration of one aspect of her evidence does not affect my finding in that regard. Taken overall, she has been candid with the Tribunal.
Exercise of the discretion under s. 23AA
There is no suggestion that Mrs Skase does not meet the other requirements of s. 23AA(1). That is clear from the terms of the Minister’s decision and reasons and from the documents lodged in the Tribunal. That, however, is not an end of the matter. Section 23AA(1) of the Citizenship Act makes it clear that any registration of Mrs Skase’s declaration of resumption of citizenship is a matter of discretion even where she has met all the requirements of s. 23AA(1).
Mr Tracey submitted that I should have regard to:
Mrs Skase’s publicly expressed attitudes;
Mrs Skase’s refusing to travel to Australia despite the opportunity to do so;
her lack of candour with both the Minister and his Department as well as with the Tribunal; and
Mrs Skase has not disavowed her allegiance to Dominica.
I was also referred to the Tribunal’s decision in Re Postiglione and Minister for Immigration and Multicultural Affairs[69]. Deputy President Handley referred to the requirement that a person be of good character before the Minister may grant Australian citizenship to a permanent resident[70]. That requirement is matched by the requirement in s. 23AA(1)(f) that the person seeking registration of a declaration of resumption of citizenship be of good character. He concluded that:
“… The Tribunal has no doubt that given the significance which attaches to citizenship as the exclusive criterion for admission to membership of the Australian Parliament, a person’s character is a relevant matter which the Minister may consider in exercising his discretion under s 23AA of the Act.”[71]
[69] (2002) 34 AAR 359
[70] Act, s. 13(1)(f).
[71] Re Postiglione and Minister for Immigration and Multicultural Affairs at 368
I have some reservations about whether good character as such is relevant in exercising the discretion. A person must satisfy the Minister of his or her good character before the Minister need consider the exercise of the discretion at all[72]. To require that it be met as a criterion and then to take it into account again in exercising the discretion seems to give it an added importance that is not accorded to the other criteria that must be satisfied under s. 23AA. In view of my reservations, I have considered the limits of the discretion conferred on the Minister from first principles.
[72] s. 23AA(1)(f)
Section 23AA does not specify the limits of the discretion but, as with any discretion conferred by statute, it is not unlimited. Its limits are determined by reference to “… the subject matter, scope and purpose of the statute …”[73]. That may mean that the latitude of the discretion is considerable[74] but it depends on the latitude of the subject matter, scope and purpose of the Act. The Minister is free to adopt a policy to guide him in the exercise of his discretion provided his policy is consistent with s. 23AA in the context of the Act[75] and does not require him to take irrelevant circumstances into account[76]. A policy “… must leave him free to consider the unique circumstances of each case … [It] does not control the making of decisions … [but] is informative of the standards and values which a Minister usually applies. …”[77]. While the Minister or his Department has prepared a policy regarding the cessation and resumption of Australian citizenship[78], it makes no reference to the exercise of the discretion but it does state, consistently with the principles to which I have referred that decision-makers “… must give full consideration to the merits of each individual case.”[79]
[73] Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 at 40 per Mason J. See also R v Australian Broadcasting Tribunal; Ex parte 2HD Pty Ltd (1979) 144 CLR 13 at 49 per Stephen, Mason, Murphy, Aickin and Wilson JJ citing with approval Water Conservation and Irrigation Commission (NSW) v Browning (1947) 74 CLR 492 at 505.
[74] Coal and Allied Operations Pty Ltd v Australian Industrial Relations Commission and Others (2000) 203 CLR 194 at 205 and see also Drake v Minister for Immigration and Ethnic Affairs (1979) 24 ALR 577; 2 ALD 60 at 590; 70 per Bowen CJ and Deane J and 602; 80 per Smithers J
[75] Re Drake and Minister for Immigration and Ethnic Affairs (No. 2) (1979) 2 ALD 635 at 640 per Brennan J
[76] Re Drake and Minister for Immigration and Ethnic Affairs (No. 2) at 634
[77] Re Drake and Minister for Immigration and Ethnic Affairs (No. 2) at 641
[78] T documents at 18-25
[79] T documents at 25
In ascertaining the subject matter, scope and purpose of the Act, I have had regard to the recital appearing before its substantive provisions. That recital recognises that:
“Australian citizenship represents formal membership of the community of the Commonwealth of Australia; and Australian citizenship is a common bond, involving reciprocal rights and obligations, uniting all Australians, while respecting their diversity; and
Persons granted Australian citizenship enjoy these rights and undertake to accept these obligations
by pledging their loyalty to Australia and its people, and
by sharing their democratic beliefs, and
by respecting their rights and liberties, and
by upholding and obeying the laws of Australia ...”
These principles are reflected in provisions of the Act. So, for example, a person who enjoys the rights and undertakes the obligations must understand them if they acquire citizenship by way of grant rather than through circumstance birth. Consequently, they must have a basic understanding of English and an adequate knowledge of what they are enjoying and undertaking[80]. They must be people who merit acceptance by the Australian community as a formal member and who show that they have a commitment to Australia whether it be by way of residence or a continuing close association with Australia[81].
[80] e.g. Act, ss. 13(1)(b), (c), (g) and (h)
[81] ss. 13(1)(d), (f) and (j)
No one consideration, or combination of considerations of the sort I have identified, is determinative of the exercise of the discretion[82]. I must have regard to all relevant factors reflecting on the subject matter, scope and purpose of the Act as I have found it to be. In that regard, I do not accept that Mrs Skase has publicly expressed views that are inconsistent with a proper understanding the obligations of an Australian citizen or that denigrate the country of which she wishes to resume her citizenship. Certainly she has expressed views as reported in the New Idea article about the attitudes of certain members of the Australian community and her annoyance that Australians read and digest everything that is said about her and her husband without questioning it[83]. Whether her annoyance is justified is not a matter that it is relevant to resolve in these proceedings. While expressing her annoyance, she has also expressed her love for Australia and for her friends. I find that her reasons for refusing to return to Australia were out of loyalty to her husband.
[82] Coal and Allied Operations Pty Limited v Australian Industrial Relations Commission and Others at 204-5
[83] Exhibit 1 at 5, columns 1 and 2
There will be many who will say that her loyalty was misplaced. It is common knowledge that a considerable number of people suffered losses as a result of the collapse of Qintex and who, unlike Mrs Skase, do feel that Mr Skase was a “goddam crook”[84]. There will be at least as many people, if not more, who feel that he should have returned to Australia to answer his critics and to face any charges that might have been laid as a result of the collapse. Perhaps there are those who think that Mrs Skase has benefited in some ways from Mr Skase’s activities in Qintex and has enjoyed a privileged lifestyle in Majorca[85]. There may be others who may think that she has paid a high price for any privileged lifestyle she may enjoy. What is important in this case is that feelings of rancour or distaste for the activities of her husband or views about the benefits she has gained do not cloud the issues in this case. It is important that she not be punished for the sins of her husband, perceived or otherwise but that her application be judged on its own merit.
[84] Exhibit 1 at 5, column 1
[85] Exhibit 1 at 1, column 1 and 3 Mrs Skase was interviewed at their “… Tuscan-style mansion La Noria …” at the “… seaside village of Puerto d’Andrailx home” … which “… is the playground for Europe’s rich and famous … nestled among the Majorcan clifftops …”. It is a “… sprawling 17 hectare home”.
When I do that, I consider that the discretion should be exercised in Mrs Skase’s favour. As I said, she exaggerated her evidence in one regard but I do not consider that she went so far as to show lack of candour with the Tribunal. She was trying her best to give an open and honest account of her activities under careful cross-examination. Certainly, she has not disavowed her allegiance to Dominica but I do not consider that to be a relevant factor. I am exercising the discretion today when the Act has been amended and a person may now become the citizen of another country without losing Australian citizenship. Against that background, her failure to disavow allegiance is of little, if any consequence. She has expressed her abiding affection for Australia and has strong family connections in Australia as well as old friendships.
For the reasons I have given, I:
1.set aside the decision of the respondent dated 25 August 2004; and
2.substitute a decision that the applicant’s declaration of declaration of desire to resume Australian citizenship be registered under s. 23AA of the Australian Citizenship Act 1948.
I certify that the eighty-seven preceding paragraphs are a true copy of the reasons for the decision herein of
Deputy President S A Forgie,
Signed: ...............................................................
Nathaniel Wills Associate
Date of Hearing 10 March 2005
Date of Decision 8 April 2005
Counsel for the Applicant Mr J Burnside QC with Mr P. Over
Solicitor for the Applicant Fetter Gdanski
Counsel for the Respondent Mr R Tracey QC
Solicitor for the Respondent Australian Government Solicitor
1
13
0