Increased Security Scrutiny and Revocation

Senator Campbell then representing the Minister in the Senate, told the Senate:

“Another significant measure aimed at safeguarding Australian citizenship is the provision for mandatory refusal of a person assessed as being a direct or indirect threat to the security of our nation.

This provision applies to all applications – whether a person is applying to become a citizen by descent, by conferral or they are applying to resume their Australian citizenship.

The need to protect the status of Australian citizenship has also led to changes to the provisions allowing for the revocation of Australian citizenship.

The bill provides for revocation where a person has obtained approval to become a citizen on the basis of third party fraud.

Applicants for citizenship by decent are required to have an Australian citizen parent at the time of their birth. Importantly, a new provision also provides that a person, born overseas, who commits fraud in relation to this requirement, will be taken never to have been an Australian citizen.”[1]

The changes will:

provide for security checking of citizenship applications, so that they can be refused on security grounds
extend revocation provisions to include serious criminal offences for offences committed in the period between approval of an application and acquisition of citizenship.

Here are the revamped provisions in relation to security clearances in s.17(4):

The Minister must not approve the person becoming an Australian citizen at a time when an adverse security assessment or a qualified security assessment in respect of the person is in force under the Australian Security Intelligence Organisation Act 1979 that the person is directly or indirectly a risk to security (within the meaning of section 4 of that Act).

Here is the change in relation to revocation of the grant of citizenship (the change being in bold) in s 34:

Citizenship by conferral

(2) The Minister may, by writing, revoke a person’s Australian citizenship if:

(a) the person is an Australian citizen under Subdivision B of Division 2 (including because of the operation of section 32); and

(b) any of the following apply:

(i) the person has been convicted of an offence against section 50 of this Act, or section 137.1 or 137.2 of the Criminal Code, in relation to the person’s application to become an Australian citizen;

(ii) the person has, at any time after making the application to become an Australian citizen, been convicted of a serious offence within the meaning of subsection (5);

(iii) the person obtained the Minister’s approval to become an Australian citizen as a result of migration-related fraud within the meaning of subsection (6);

(iv) the person obtained the Minister’s approval to become an Australian citizen as a result of third-party fraud within the meaning of subsection (8); and

(c) the Minister is satisfied that it would be contrary to the public interest for the person to remain an Australian citizen.

Serious offence

(5) For the purposes of this section, a person has been convicted of a serious offence if:

(a) the person has been convicted of an offence against an Australian law or a foreign law, for which the person has been sentenced to death or to a serious prison sentence; and

(b) the person committed the offence at any time before the person became an Australian citizen.

In these controversial times it is useful to reflect on the preamble to both the existing Act and the new Act:

Persons granted Australian citizenship enjoy these rights and undertake to accept these obligations by pledging 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.

Re-acquiring Australian Citizenship

Under the new Act, the restrictions on re-acquiring Australian citizenship are eased. There is some history to all of this and it is necessary to go through it here a little so as you understand where the law is now at. At the risk of oversimplification here is the history. On 4.4.02, any restrictions on having dual citizenship was abolished.[2]

Before that date s. 17 of the Australian Citizenship Act 1948 stated:

S 17. Loss of citizenship on acquisition of another nationality

(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.

S. 17 was repealed on 4.4.02 but the repeal was not retrospective. In other words if anyone lost their Australian citizenship before that date then the repeal of s. 17 did not revive their Australian citizenship. Prior to 1.7.07 there was a complicated process to re-acquiring Australian citizenship under s. 23AA of the old Act. The relevant portion reads:

(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;

This provision was used by Pixie Skase to re-acquire her Australian citizenship. In Skase v MIMIA [2005] AATA 308 (8.4.05). She had acquired Dominican citizenship along with her husband Christopher Skase when Australia had asked the Spain authorities to confiscate his passport when he presented it to renew his Spanish residency visa. In a controversial case, Mrs Skase said she did not know she would lose her Australian citizenship by taking on Dominican citizenship. In a tortuous case, the AAT ultimately accepted that evidence.

Firstly some words on the term ‘dual citizenship’. The word ‘dual’ is used loosely to describe to refer to more than one citizenship. A person could easily have 3 citizenships, eg a child with a Greek citizen father and Italian citizen mother born in Australia when one of the parents is either an Australian citizen or permanent resident would on birth have 3 citizenships, Australian, Italian & Greek. Prior to the repeal of s.17, dual citizenship was basically a form of legal lottery. Many people who acquired Australian citizenship either by birth or by grant, retain either the citizenship of a parent or the citizenship of their country of origin. Whether one would have retained that other citizenship or not depends on the domestic law of that other country. Generally the citizenship law of countries like the UK, Canada, New Zealand, USA, France, Italy and Greece is in this category.

Turning to the other ground, generally the Australian Citizenship Instructions[3] were quite expansive in the interpretation of ‘significant hardship or detriment’. In the citizenship area where is a philosophy of inclusion rather than exclusion.

Under the new citizenship Act re-acquisition is made even easier, there being a general eligibility to regain Australian citizenship. Here is what s 29 says:

Cessation under this Act

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

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

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

(ii) s 36 (about children); and

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

Note 1: See also s. 32 (which is about persons resuming their former citizenship status).

Note 2: A person who ceases to be an Australian citizen under s. 34 or 35 may apply to become an Australian citizen again under Subdivision A or B.

Cessation under old Act:

(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) s. 17 (about dual citizenship) of the old Act; or

(ii) s. 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) s. 20 (about residence outside Australia) of the old Act; or

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

So what this means is that a person who lost their citizenship on the grounds of acquiring a foreign citizenship prior to 4.4.02 can now simply apply to re-acquire it. And if anyone lost their Australian citizenship because they had to renounce it (like to obtain a job overseas) similarly there is an eligibility to re-acquire Australian citizenship.

And there is an additional provision to allow offspring of persons who had previously lost their citizenship under the dual citizenship provisions to gain Australian citizenship. Here is what s. 21(6) says:

Person born to former Australian citizen

(6) A person is eligible to become an Australian citizen if the Minister is satisfied that:

(a) the person was born outside Australia; and

(b) a parent of the person was not an Australian citizen at the time of the person’s birth; and

(c) the parent had ceased to be an Australian citizen under section 17 of the old Act (about dual citizenship) before that time; and

(d) the person is of good character at the time of the Minister’s decision on the application.

Generally the rest of the new Act leaves the current law in tact. Note in particular this provision:

12 Citizenship by birth

(1) A person born in Australia is an Australian citizen if and only if:

(a) a parent of the person is an Australian citizen, or a permanent resident, at the time the person is born; or

(b) the person is ordinarily resident in Australia throughout the period of 10 years beginning on the day the person is born.

S. 12(1)(b) can apply to child of a long term illegal and is at least one mechanism to obtain a lever to remain in Australia.

[1] Ibid pp 20-21.

[2] See Australian Citizenship Legislation Amendment Act 2002

[3] The citizenship equivalent to the PAM.

Barbara DavidsonAugust 20, 2014