CITIZENSHIP - refusal of application to resume citizenship - no prior record of citizenship - CPI 27 - Resuming Australian Citizenship

Administrative Review Tribunal Act 2024 (Cth)

Australian Citizenship Act 2007 (Cth)

Nationality and Citizenship Act 1948 (Cth)

Chetcuti v Commonwealth of Australia [ 2021] HCA 25 (12 August 2021)

Citizenship Procedural Instruction (CPI) 27 - Resuming Australian Citizenship

1. Mr Edwards is seeking a review of the Minister's (the Minister or the Respondent) delegate's 14 August 2024 decision to refuse his application to resume Australian citizenship (the reviewable decision).[1]

1. On 2 August 1937, Mr Edwards was born in Coventry in the United Kingdom.[2] Both of his parents were born in Coventry.[3]
2. On 13 December 1947, Mr Edwards first arrived in Australia at Fremantle on board the SS Largs Bay.[4]
3. On 26 January 1949 the Nationality and Citizenship Act 1948 (Cth) (the NCA) commenced.
4. Mr Edwards left Australian at some point between December 1955 and January 1956 to go to the United Kingdom.[5]
5. On 30 April 2024 he applied for a resumption of his Australian citizenship.

(1) A person who was a British subject immediately prior to the date of commencement of this Act shall, on that date, become an Australian citizen if-

(a) he was born in Australia and would have been an Australian citizen if section ten of this Act had been in force at the time of his birth;

(b) he was born in New Guinea;

(c) he was a person naturalized in Australia; or

(d) he had been, immediately prior to the date of commencement of this Act, ordinarily resident in Australia or New Guinea, or partly in Australia and partly in New Guinea, for a period of at least five years.

(3) A person born outside Australia and New Guinea-

(a) who was a British subject immediately prior to the date of commencement of this Act;

(b) whose father was a person to whom paragraph (a), (b) or (c) of sub-section (1.) of this section applies; and

shall become an Australian citizen on that date or on the date upon which he enters Australia, whichever is the later.

1. There is no evidence before the Tribunal to suggest or show that Mr Edwards was naturalised in Australia or that he was ordinarily resident in Australia or New Guinea for a period of five years immediately prior to the NCA's commencement date.
2. There is no evidence before the Tribunal that Mr Edwards' father met the criteria in s 25(3) of the NCA.
3. There is no evidence before the Tribunal to suggest that Mr Edwards registered as an Australian citizen after the NCA commenced or before he departed Australia for the United Kingdom in 1955/1956. There is no evidence to show Mr Edwards was ever an Australian citizen.
4. Section 29 of the Australian Citizenship Act 2007 (Cth) (the ACA) states:

(1) A person may make an application to the Minister to become an Australian citizen again.

(2) A person is eligible to become an Australian citizen again under this Subdivision if:

(a) the person ceased to be an Australian citizen under:

(i) section 33 (about renunciation) in order to acquire or retain the nationality or citizenship of a foreign country or to avoid suffering significant hardship or detriment; or

(b) if the person is aged 18 or over at the time the person made the application - the Minister is satisfied that the person is of good character at the time of the Minister's decision on the application.

(3) A person is eligible to become an Australian citizen again under this Subdivision if:

(a) the person ceased to be an Australian citizen under:

(i) section 17 (about dual citizenship) of the old Act; or

(ii) section 18 (about renunciation) of the old Act in order to acquire or retain the nationality or citizenship of a foreign country or to avoid suffering significant hardship or detriment; or

(iii) section 20 (about residence outside Australia) of the old Act; or

(iv) section 23 (about children) of the old Act; and

(b) if the person is aged 18 or over at the time the person made the application - the Minister is satisfied that the person is of good character at the time of the Minister's decision on the application.

1. CPI 27 sets out the procedure to deal with an application to resume Australian citizenship under s 29 of the ACA. Such an application is also an application for a certificate evidencing Australian citizenship. The lack of evidence establishing that Mr Edwards previously held Australian citizenship or had lost or renounced Australian citizenship meant that his April 2024 application to resume his Australian citizenship failed.
2. Mr Edwards contends that the NCA operated for what he terms a 'transitional period.'[6] He builds on this argument to contend that he would have become an Australian citizen on 29 January 1954, via the passage of five years after the NCA commenced and approximately two years before he departed Australia. This argument must fail as the five-year period referenced in s 25(1)(d) of the NCA is qualified as being immediately prior to the NCA's commencement.
3. Chetcuti v Commonwealth of Australia[7] held that Australian citizenship could only be acquired after 26 January 1949 by birth, descent, registration or naturalisation.[8] It is useful to quote directly from Chetcuti at [33]:

"[Mr Chetcuti] missed out on becoming an Australian citizen on 26 January 1949 through operation of s 25(1)(d) of the Australian Citizenship Act only because, having arrived in Australia on 31 July 1948, he had then been ordinarily resident in Australia for a period of less than five years. His position, however, was not irremediable. After he had resided in Australia for a period of five years - that is, after 31 July 1953 - it was open to him under the Australian Citizenship Act by virtue of his new citizenship of the United Kingdom and Colonies to apply to become an Australian citizen by registration. That course of action remained available to him until the provision for obtaining Australian citizenship by registration was removed from the Australian Citizenship Act at the commencement of relevant provisions of the Australian Citizenship Act 1973 (Cth) on 1 December 1973. His problem is that he did not take that available course of action."

1. Mr Edwards was not born in Australia, and neither were his parents. There is no evidence of him registering for or applying for Australian citizenship or undertaking naturalisation. The Tribunal infers from this lack of evidence that he did not do so. Consequently, he did not become an Australian citizen and his application to resume Australian citizenship fails for this reason.

1. Pursuant to s 105 of the Administrative Review Tribunal Act 2024 (Cth), the Tribunal affirms the reviewable decision made by the delegate of the Respondent.

I certify that the preceding seventeen (17) paragraphs are a true copy of the reasons for the decision herein of General Member D. Cosgrave

[7] Chetcuti v Commonwealth of Australia [2021] HCA 25 (12 August 2021).