Smout and Minister for Immigration and Multicultural Affairs - [2000] AATA 370

DECISION AND REASONS FOR DECISION [2000] AATA 370

ADMINISTRATIVE APPEALS TRIBUNAL )

) No V2000/65

GENERAL ADMINISTRATIVE DIVISION          )
           Re      John Ronald Smout
  Applicant
           And    Minister for Immigration and Multicultural Affairs
  Respondent

DECISION

Tribunal Deputy President B.M. Forrest

Date12 May 2000
PlaceMelbourne

Decision      The decision under review is affirmed.
  ........(Sgd. B.M. Forrest)...........
  Deputy President
CITIZENSHIP – Applicant born in Australia in 1925 – continual residence in United Kingdom since 1929 – applied for British citizenship in 1998 – sole or dominant purpose – whether Australian citizenship ceased – whether applicant entitled to declaration of resumption of Australian citizenship – residency requirements – decision affirmed.
Australian Citizenship Act 1948 ss. 10C, 17, 23AA, 52A(i)(e)
Australian Citizenship Amendment Act 1986 s. 7
British Nationality Act 1981
Australian Citizenship Amendment Act 1984
Minister for Immigration Local Government and Ethnic Affairs v Gugerli (1992) 36 FCR 68
Michael Turner and Minister for Immigration and Multicultural Affairs [1999] AATA 904

REASONS FOR DECISION

12 May 2000 Deputy President B.M. Forrest

The applicant, Mr John Ronald Smout has applied to the Tribunal for review of a decision of a delegate of the Minister to refuse to register a declaration to resume Australian citizenship under s. 23AA of the Australian Citizenship Act 1948 ("the Act").
The Tribunal has jurisdiction under s. 52A(i)(e) of the Act to review a decision made under s. 23AA. Mr Smout who lives in England appeared in person. The hearing was scheduled at a time convenient to Mr Smout who was visiting Australia. Mr Frost, a solicitor with the Australian Government Solicitor appeared for the Minister.
Section 23AA, which in its present form was inserted into the Act by s. 7 of the Australian Citizenship Amendment Act 1986 with effect from 20 August 1986 provides:
"23AA. (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;
register the declaration in the prescribed manner and, upon the registration of the declaration, the person making the declaration again becomes an Australian citizen.
…"
Section 17 of the Act which is also relevant provides:
"17. (1) 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.
(2)          Subsection (1) does not apply in relation to an act of marriage."
When this matter was heard by the Tribunal on 11 April 2000 Mr Smout had been unable to obtain a record of his birth, a fact that needs to be kept in mind in the events described in these reasons.
Mr Smout believed that he was born in Melbourne on 17 May 1925 and that the surname of his natural mother was Rees. There is no known record of his natural father's name. Shortly after his birth he was adopted by a Mr and Mrs John Smout who at the time lived in Australia. A letter from the Registry of Births, Deaths and Marriages, Victoria dated 28 January 1997 to Mr Smout informed him that a search in the Registry for the period 1 January 1923 to 31 December 1927 had failed to locate a birth registration entry. The Registry of Births also informed him that it has no record of his adoption in the name of Smout as, prior to 1929, adoptions were not registered in that office.
However further research by Mr Smout has borne fruit. On 8 May 2000 he forwarded to the Tribunal, by facsimile, copies of further documents including a certified copy of his birth certificate, registration number 10975/1925 in the Registry of Births, Victoria recording the birth to Gweniad Mavis Ross of Ronald Victor Ross on 17 May 1925 at (Royal) Womens Hospital Carlton, Victoria. The father is not recorded. Also forwarded was a copy of the certificate of death of his mother on 19 November 1974 and a document (in part illegible) evidencing the adoption of Mr Smout.
In about October 1929 the adoptive parents separated and they lost contact with each other. Mrs Smout returned to England with the applicant. Her husband remained in Australia. The applicant has lived in England since 1929.
In 1987 Mr Smout who had not previously held a passport, applied for a British passport as he and his spouse intended to travel overseas the following year to celebrate their ruby wedding anniversary. He believed that to obtain a passport he had to have British citizenship. He applied for British citizenship on 4 December 1987. The local Member of Parliament was also asked to assist because of the lack of a birth certificate. The MP consulted the Home Office Secretary who thought Mr Smout was "more Australian than British" because he was born in Australia. It was suggested to his solicitor that the Australian High Commission be contacted because of the delay in the Home Office (approximately eighteen months) to process applications for British citizenship. The MP arranged a joint visitor's passport to enable Mr Smout and his spouse to travel overseas.
Upon his return from holiday Mr Smout instructed his solicitor to pursue the question of Australian citizenship and a passport with the Australian High Commission. In May 1988, he applied for a declaratory certificate of Australian citizenship. On 17 June 1988, Mr Clyde Holding the then Minister for Immigration Local Government and Ethnic Affairs issued a declaratory certificate of Australian citizenship to Mr Smout. He also obtained an Australian passport.
In 1996 on his return to England from a visit to South Africa, Mr Smout was queried at Heathrow Airport about his residence status. At the entry barrier his Australian passport was stamped permitting two months entry only. He was advised by the immigration officer to apply for right of abode in the United Kingdom notwithstanding having lived continuously in the United Kingdom since 1929 and having served in the Royal Marines during World War 2. Mr Smout explained:
"That passport brought me into conflict with the British immigration authorities on our return from South Africa in 1996. The passport had not been franked on issue from the Australian High Commission, London as a person of permanent residence in Britain. I was never told that this was necessary or essential when I applied for the passport. Consequently, on re-entry to Britain, where I had been living for nearly 70 years, I was given only two months 'leave to enter'. This forced my hand to obtain British Citizenship to obtain a 'Certificate of Entitlement to the Right of Abode in Britain' – which was why I went for dual citizenship. If I had not done so I felt it would have led to the loss of all I had worked for in Britain, like the break up of my family and marriage."

Again he contacted his local MP for assistance:
"At that time I did not have a British passport; but with all these travel problems I thought it imperative I should have one. I was coerced into acquiring British nationality in order to obtain a passport."

In 1997 Mr Smout applied under the British Nationality Act 1981 to become a British citizen by naturalisation. A certificate of British citizenship was issued on 16 February 1998. In 1998 his Australian passport expired.
On 16 October 1998 Mr Smout lodged at the Australian High Commission in London a declaration in the prescribed form to resume Australian citizenship under s. 23AA of the Act. In his declaration he wrote:
"I was granted a Certificate of Australian Citizenship on 17th June 1988 due to changes in British immigration law. Having lived in Britain 59 yrs continuously before that date, the British Government decided I 'was more Australian than British' because I had no Birth Certificate and only legal papers declaring me to be born in Australia on 17th May 1925 on my application for a passport. There were compelling & emotional reasons for application for British & Australian Citizenship."
Mr Smout was notified by letter dated 17 June 1999 from Karis Wride, Citizenship Section, Australian High Commission London that his application was refused on the grounds that he ceased to be an Australian citizen under s. 17 of the Act, upon the acquisition of British nationality on 16 February 1998 and that he does not satisfy certain requirements of the Act specifically s. 23AA(1)(b)(v) of a close and continuing association with Australia, and s. 23AA(1)(b)(iv)(B) of intention to return to Australia to live within three years.
Section 23AA(1)(a) incorporates in sub-paras. (i) and (ii) the language of s. 17 of the Act, as to circumstances under which a person ceases to be an Australian citizen. The concept of a "voluntary and formal act" in sub-para. (i) appeared in s. 17 as it read prior to repeal and replacement by s. 17 in its present form on 22 November 1984 (see Australian Citizenship Amendment Act 1984) which incorporated "the sole or dominant purpose" concept also reproduced in sub-para. (ii). When Mr Smout applied for British citizenship by naturalisation s. 17 of the Act in its present form was in place. Presumably the language of the earlier version of s. 17 was incorporated in sub-para. (i) to allow s. 23AA to apply to a former citizen who had lost Australian citizenship prior to 22 November 1984.
While no detail of the 1997 application for British citizenship was before the Tribunal obviously "the act or thing" done by Mr Smout was to make application to the Home Office which in turn assessed the application against the requirements of the British Nationality Act 1981.
It is reasonably clear to me from reading the detailed statements of Mr Smout lodged with the Tribunal and hearing his evidence that he was concerned to clarify his right of residence in the United Kingdom. I readily accept the chagrin he experienced when informed that it was in doubt after almost 70 years residence there. Understandably, he did not want to prejudice his rights and entitlements and those of his family in the United Kingdom, matters which were important to his situation. To safeguard these, I am reasonably satisfied, was the dominant purpose of his action in applying for British citizenship by naturalisation in 1997. In its ordinary meaning, "dominant" refers to purpose which is the ruling, governing or most influential purpose. The issue of the passport was an element of the purpose but not the dominant one. The consequence of his action albeit an unintended one was the loss of his Australian citizenship by operation of s. 17.
The Tribunal does not have jurisdiction to declare a person's citizenship under s. 17: see Minister for Immigration Local Government and Ethnic Affairs v Gugerli (1992) 36 FCR 68. This question arose in Michael Turner and Minister for Immigration and Multicultural Affairs [1999] AATA 904 in the context of an application for citizenship by descent under s. 10C of the Act. In that case I said that "a distinction has to be drawn between a declaration as to a person's citizenship and a finding for the purposes of the decision under review. So much is also clear from a reading of Gugerli's case." Similarly in the present matter, for the purposes of the decision under review, a finding has to be made whether or not Mr Smout has by operation of s. 17 ceased to be an Australian citizen.
Turning to the conditions of s. 23AA(1), I am satisfied as to the truth of the statements of Mr Smout that firstly he was unaware of the consequence of his application for British citizenship: sub-para. (b)(ii) and secondly that he had not less than two years lawful residence in Australia: sub-para. (b)(iii).
The difficulty in the path of Mr Smout is satisfying the mandatory requirement of either (A) or (B) of sub-para. (b)(iv) in conjunction with sub-para (b)(v). As Mr Smout is not residing in Australia nor does he intend to return to Australia to live within three years he cannot satisfy the terms of either (A) or (B) of sub-para. (b)(iv). That is sufficient to dispose of the matter irrespective of whether he has maintained a close and continuing relationship with Australia, as required by sub-para. (b)(v).
During the hearing Mr Frost provided an extract of a report by the Australian Citizenship Council, February 2000 entitled "Australian citizenship for a new century". The Council, which was established in 1998 as an independent body to advise the Minister on contemporary issues relating to Australian citizenship "strongly recommends" to the government that s. 17 of the Act be repealed so that Australian citizens over the age of 18 years do not lose their Australian Citizenship on acquisition of another citizenship. It is understood that the government has as yet not responded to the Council's recommendation. It was apparent to me that Mr Smout retains an emotional attachment to his birthplace Australia. In submissions he queried the relevance of s. 17 in this day and age. However, irrespective of whether s. 17 remains in the statute, as the legislation stands, the conditions governing resumption of citizenship under s. 23AA still have to be fulfilled and as I have found Mr Smout does not at present do so.
For these reasons the decision under review is affirmed.
I certify that the 23 preceding paragraphs are a true copy of the reasons for the decision herein of
Deputy President B.M. Forrest
Signed:         .....................................................................................
  Associate
Date/s of Hearing  11 April 2000
Date of Decision  12 May 2000
For the Applicant  in person
Solicitor for the Respondent    Mr P. Frost,
  Australian Government Solicitor