The Citizenship Ground
94 The Citizenship Ground is in a different category because it raises questions of fact. If Mr Cayzer's factual contentions are made out on the evidence, then questions of law arise about whether what he contends occurred is sufficient in law for the Court to find that he is an Australian citizen and therefore not a person to whom s 501 can apply.
95 In my opinion Mr Cayzer has not discharged his burden of proof to establish that what occurred in 1981 in Hobart constituted him taking the oath of citizenship and becoming an Australian citizen. Nor do I accept he has proven that is what he was told by any officer or employee of the Commonwealth who attended the events about which he gives evidence.
96 Even if I had reached the opposite conclusions (that Mr Cayzer had taken the oath of citizenship and was told that he had become an Australian citizen) the sequence of factual events upon which Mr Cayzer relies cannot amount in law to the grant of Australian citizenship.
97 For the purposes of reaching my conclusion on this ground, I make the following findings of fact on the evidence before me.
98 Mr Cayzer had been employed with the Commonwealth Department of Social Security from approximately 1978. After accepting a teacher scholarship in 1979, he commenced study at the University of Tasmania. He did not complete a course there and instead found other employment during 1980 and 1981. He then decided he would try to find employment in the RAAF as an Air Traffic Controller, and made inquiries in answer to an advertisement in the Hobart Mercury newspaper. He applied through what he described as the "Airforce Recruitment Centre" or "ARC" situated in Hobart at Liverpool Street.
99 Mr Cayzer attended the ARC with four other candidates. He was told he needed to have Australian citizenship to join the RAAF. He was asked if he was prepared to become an Australian citizen and he said that he was. He was given some "paper work" to fill in. He filled in what he described in his evidence as a "preliminary application form". He filled in the option on the form for dual citizenship, as both a British and Australian citizen. He also filled in details about his employment history, his education and his medical history.
100 Mr Cayzer passed the physical examination but not the examination for the Air Traffic Controller entry position. Instead, he was informed he could join the Air Force as what he described in his evidence as a "general entry recruit". He accepted this offer.
101 Mr Cayzer attended at the ARC in Hobart, along with four other people. Mr Cayzer's evidence was that he then took part in a ceremony with these four other people. This was the evidence critical to his case about the grant of citizenship. I make findings about what happened at that ceremony below.
102 He attended interviews in Melbourne a few weeks later, and then also subsequently attended at the recruiting barracks in Hobart. He was informed that because he had not passed Year 11 English he could only be accepted into officer entry training on the condition that he returned to college for further study. However, after further interviews and consideration he was eventually informed that the recruitment staff would recommend he be accepted for officer training and the final decision would be made in Canberra. About four weeks later, he was informed he would only be accepted if he returned to study for a further qualification in English. He decided not to accept the offer on this basis. Notwithstanding declining the Air Force's offer, Mr Cayzer's evidence was as follows:
I have always believed that I took out dual citizenship at the Airforce Recruiting Centre in Hobart and I have considered myself to be an Australian citizen from that day onwards. I told my family about my citizenship ceremony.
103 Mr Cayzer's mother gave affidavit evidence in this proceeding corroborating her son's account. She did so by deposing to the truth of a handwritten statement she had given in June 2015. She was not cross-examined on this evidence. Her evidence was that Mr Cayzer had sworn an oath in front of a "serving officer" and signed a paper. She stated that the family was proud of him because he was the first person in the family to become a "true" Australian. Her evidence did not expressly identify when she was first told by Mr Cayzer about this ceremony and about him becoming an Australia citizen.
104 Mr Cayzer's evidence about the ceremony at which he believes he became an Australian citizen was as follows:
I along with four other people who had completed the exams with me were asked were asked to stand up in front of officers and others and the officer got us to swear an oath of allegiance together. The officer then said at the end that we were now Australian Citizens.
105 I should note at this point that Mr Cayzer gave no additional evidence in chief before me beyond that set out in his affidavits, but he was extensively cross-examined.
106 In cross-examination, he described going "upstairs" in the building with the four other candidates. He accepted that these events, and the ceremony he described, all occurred prior to him actually enlisting. And, he also agreed, he never did in fact enlist in the Air Force. His evidence was however that the ceremony occurred immediately after he had been interviewed about enlisting.
107 As to who was present and what occurred, Mr Cayzer stated:
Well, there was a number of people there. There was Air Force Recruiting. There was officers. There was other people. Not all the people that were there I could identify.
… And when I actually swore the oath, it was in front of a number of officers and a number of other people who I don't know who they were. But that wasn't while we were being interviewed.
… We were then taken to a room upstairs. And that was where we swore the oath … of allegiance.
… So we were told that to go any further in the process, we had to be Australian citizens. Because the process thereafter involved being flown to Melbourne for interviews which, in my case, was two occasions to Melbourne. And the air force wasn't prepared to go forward any further unless we were Australian citizens. And that was when I was with a number of other recruits … [and was] give[n] a card and asked to swear an oath of allegiance to the Queen of Australia …
108 Mr Cayzer's evidence then proceeded in the following manner:
And then you - you said you were given a card?---Yes. There was a card with an oath written on it. Now, I can't tell you verbatim what those words were on that oath. All - my recollection of it was, I had to renounce my allegiance to the Queen of Great Britain and swear allegiance to the Queen of Australia. There was a number of words on that after that, but my memory of those words is not accurate to today.
No. So - so - but - but - - -?---But to me, it was a very significant event, because I was renouncing any allegiance to the Queen of Great Britain.
Even though you were staying a dual citizen?---That's correct.
Well, didn't that strike you as odd?---Well, no. Citizen and allegiance are two different things.
And you thought you would - you thought you would remain a citizen of - - -?---British subject. Yes.
A British subject?---And - and - - -
And then - - -?--- - - - Australian citizen. Yes.
Having renounced any allegiance to the Queen of England?---The Queen of Great Britain. Yes. Correct.
And you didn't see any tension there with your - - -?---No.
- - - desire to keep dual status?---I didn't see any tension. No. We are part of the Commonwealth of - of - well, not just the Commonwealth of Australia, but - - -
But - but the essence of what you now you remember, all that time later, is, as you've just said to her Honour, that you were swearing an oath to the Queen?---The Queen of Australia. Correct. And renouncing my allegiance to the Queen of Great Britain. But it was an oath card. There was a number of other parts of it that came after that. Now, I can't remember everything word for word, now, 35 years ago. I can only remember the main concept of the whole thing.
109 In cross-examination Mr Cayzer accepted he could not recall the precise words of the oath he took that day. It was suggested to him it could have been an oath relating to enlistment rather than citizenship. No particular form of words for an enlistment oath was put to Mr Cayzer in cross-examination. Mr Cayzer denied it was an oath of that kind.
110 In cross-examination by senior counsel for the respondents, some issue was made of the previous evidence given by Mr Cayzer in an affidavit to the effect that he was not "naturalised". It was suggested that his evidence was inconsistent. No submission was made that Mr Cayzer was dishonest. It is somewhat difficult to reconcile the cross-examination on this issue with a submission that Mr Cayzer was simply mistaken, but that was the way it was put. In my opinion, nothing turns on the point. In his prior affidavit evidence, Mr Cayzer may well not have understood the correct meaning of "naturalised", and may have intended something else. In my opinion, in his evidence before the Court he was personally convinced he had become an Australian citizen during the events at the ARC. That is consistent with what he previously told his mother. The respondents' written submissions at [31] appear to accept as much.
111 I turn now to the respondents' evidence.
112 In terms of what occurred in 1981, Ms Penhaligon's evidence was, she accepted, based on a review by her of documents held by the Department rather than her personal knowledge and experience. She commenced with the Department in 1991. Her evidence was that, after a thorough search, she could find no delegations to any officer of the Army or Air Force to make a decision relating to citizenship. Her evidence was that the Department of Defence has control over its own files and has an exemption from the Archives Act 1983 (Cth): she did not purport to have searched files held by the Department of Defence. She accepted that, since Mr Cayzer did not in fact enlist, the Department of Defence may not have transferred any documents to the Department of Immigration. She agreed in cross-examination that, prior to 1985, immigration officers were able to administer oaths of allegiance of the purposes of citizenship.
113 Her evidence was that the grant of a certificate of citizenship had, relevantly, always preceded the taking of an oath or affirmation of allegiance. She was not seriously challenged on this evidence, and it is consistent with the legislative scheme.
114 She accepted there could be expedited, or special, procedures for Defence personnel to be granted citizenship. However, she maintained that she did not believe that in 1981 Defence officers were able to administer an oath or affirmation for the purposes of the Citizenship Act. Somewhat hesitatingly, and after being referred to some files in cross-examination which suggested citizenship ceremonies could have occurred on Defence Force bases in the early 1980s, she accepted it was possible this occurred. The files on which Ms Penhaligon was cross-examined were neither produced by Mr Cayzer nor tendered in evidence.
115 Ms Penhaligon was a sincere witness who did her best to assist the Court. To the extent she gave evidence about processes and practices, I accept her evidence. I also accept her conclusion about the possibility that citizenship ceremonies occurred on Defence Force bases.
116 Having seen some of the documents in evidence, Wing Commander Gibb conceded in his evidence that it seemed more likely than not that in 1981 people were required to apply for citizenship prior to enlistment, even though this was not subsequently the case. He also appeared to accept, somewhat reluctantly and after he was referred to an Army newspaper which indicated that a citizenship ceremony had taken place at Victoria Barracks in Melbourne in September 2007, that there may have been citizenship ceremonies carried out on Defence Force bases in the past.
117 Group Captain MacDonald conceded that, for someone like Mr Cayzer, the policy in 1981 was that he would have needed to apply for citizenship prior to enlistment. He also frankly conceded that a person would not take an enlistment oath before being enlisted. He gave some evidence about "mock" oaths that would be given a day or so before the actual enlistment ceremony, as a practice. This plainly was not a scenario applicable to Mr Cayzer's situation. Group Captain MacDonald said he was "surprised" that there may have been a citizenship ceremony on a Defence Force base. He otherwise could not assist the Court about the conduct of such ceremonies on Defence Force bases or premises.
118 I accept the respondents' submission that there is no evidence of any record held by the Department of Immigration of any application for Australian citizenship by Mr Cayzer. I also accept, in Mr Cayzer's favour, that this may be explicable on the evidence before me because he did not proceed to enlist and it is unlikely that any search by or behalf of the Department of Immigration, or the Minister, would have turned up any such application because if it did exist it might well be in the files of the Department of Defence. Taking into account the evidence of Group Captain MacDonald, it would seem likely Mr Cayzer was asked by the enlistment officers to fill in such a form during the enlistment and interview process. I am prepared to find on the balance of probabilities that he did fill in such a form.
119 However, I find that Mr Cayzer has not discharged his burden of proving on the balance of probabilities that he underwent a ceremony in the RAAF recruiting offices in 1981 through which he became an Australian citizen. I am prepared to find on the balance of probabilities that Mr Cayzer was shown a card that had an oath of some kind on it, and that he may have repeated some words which approximated to some of the words he described in his evidence. I am prepared to find that the word "allegiance" may have been included in the words he said. He seemed to have a reasonably clear memory of that word. But I am not prepared to find that he repeated all the words he described in his evidence: his evidence appears to me to have been affected by events that have occurred during the period in which Mr Cayzer has struggled to prove he is a citizen. He has come to know only too well the kind of language which is in fact used in an oath of allegiance during a citizenship ceremony. His confusion about whether he renounced his British citizenship contributes to my view that there was an element of reconstruction in his evidence. I do not find he intended to make up any evidence, but in my opinion his evidence was confused as between what he could actually recall and what he has since learned about citizenship ceremonies and the effect of becoming a citizen, as well as the number of times he has read and participated in the making of arguments on his behalf about the difference between the Queen of Great Britain and the Queen of Australia, which also featured in historical evidence. I am not prepared to find that what occurred was the taking of the oath of citizenship. Nor am I prepared to find it was the taking of the oath of enlistment. It may well be that, for some purpose which cannot now be identified, some kind of oath was required of Mr Cayzer that day. Perhaps he was given an oath to practice, or to see what he would have to swear to in the future. Perhaps he practiced by uttering the words of the oath and that is what he now recalls. Perhaps, for some local or administrative purpose unknown to the witnesses in these proceedings, prospective enlistment candidates were asked to swear to something. There are many possibilities and it is inappropriate for the Court to speculate about which is correct, or to choose between contentions which are no more than competing possibilities: see Seltsam Pty Ltd v McGuiness [2000] NSWCA 29; 49 NSWLR 262 at [79]-[80] per Spigelman CJ.
120 I do not accept Mr Cayzer's evidence that any person present that day said words to the effect of "you are now an Australian citizen". I find Mr Cayzer's memory is insufficiently reliable for me to be confident that this is what occurred, as opposed to a reconstruction by him based on going over and over these events in his mind and in his memory for a number of years.
121 Whether or not there was, in 1981, a capacity in officers of the Defence Force, or immigration officers present on Defence Force premises, to administer the oath of allegiance as part of an Australian citizenship ceremony, I am not persuaded on the balance of probabilities that any officer engaged in such conduct in Mr Cayzer's presence on the (unspecified) day he identifies in 1981.
122 Even if I had been persuaded that Mr Cayzer did take an oath in the required form for Australian citizenship on that unspecified day in 1981 at the Air Force recruiting offices in Hobart, that would not have led me to conclude that Mr Cayzer was, at and from that time, an Australian citizen. Nor would it lead me to conclude he has at any time since become an Australian citizen.
123 That is because, as the respondents submitted, there is another condition precedent to the grant of Australian citizenship: namely, the grant of a certificate of citizenship.
124 The respondents are correct to submit that Mr Cayzer himself led no evidence that he had been granted, or given, a certificate of Australian citizenship. Mr Cayzer does not claim to have been granted or given one. I find Mr Cayzer has not discharged his burden of proving that the Minister granted a certificate of Australian citizenship to him in 1981, or at any other time.
125 The discretion in s 14(1) of the Citizenship Act is to "grant a certificate of Australian citizenship" to a person who has made an application. It is the grant of the certificate which confers citizenship on a person.
126 The purpose of s 15 of the Citizenship Act is to identify the point in time at which a person becomes an Australian citizen. The precondition for that point in time to crystallise is that there has been a grant of a certificate of citizenship by the Minister under s 14(1). That is what the terms of s 15(1) provide. The only persons to whom s 15 can apply are persons to whom "a certificate of Australian citizenship has been granted". Mr Cayzer is not such a person.
127 Therefore, whatever oath Mr Cayzer took in 1981 (and even assuming in his favour it was the very oath of allegiance prescribed in Schedule 2 of the Citizenship Act as s 15(1) contemplated), Mr Cayzer was not, at that time, a person to whom s 15(1) applied. Therefore he could not "be" an Australian citizen in accordance with s 15(1) when he took that oath (even assuming, contrary to my findings of fact, that is what he did).
128 As the authorities to which I have referred earlier make clear, there is no executive authority to grant citizenship. The only way a person may become an Australian citizen is in accordance with a statute providing for the grant of citizenship. Mr Cayzer is not a person who has become an Australian citizen in accordance with Pt III, Div 2 of the Citizenship Act as it stood in 1981. He did not contend to have been granted citizenship in accordance with any later versions of the Citizenship Act and there have in any event been no material changes to the core process by which a person does, or does not, become an Australian citizen.
129 The Citizenship Ground must fail.