Evidence of Citizenship & Certificates

Section 12(1b)(a) and (b) of The Australian Citizenship Act 2007 (Cth) states:

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.

Section 3 of the Citizenship Act 2007 – Definitions

*permanent resident has the meaning given by section 5.

See also section 7(1) of the Social Security Act 1991 (Cth) for New Zealand citizens.

**ordinarily resident: a person is taken to be ordinarily resident in a country if and only if:

(a) he or she has his or her home in that country; or

(b) that country is the country of his or her permanent abode even if he or she is temporarily absent from that country.

However, the person is taken not to be resident if he or she resides in that country for a special or temporary purpose only.

Who can apply for ‘Evidence of Australian Citizenship’ and receive an Australian Citizenship Certificate?

Anyone who is already an Australian citizen may apply for and receive an Australian citizenship certificate.

Information and FAQs

To apply you will need to set up an 'ImmiAccount'

Australian citizenship certificates are applied for online through the Department of Home Affairs (DHA) website.

This step by step process is taken directly from the DHA website where further information and guidance can be found

To begin you will need to create an ‘ImmiAccount’


You can create an individual ImmiAccount if you are:

  • an individual applicant
  • a family member acting on behalf of an applicant
  • a friend helping with the application process

Step 1: Enter your user details

Select ‘Individual’.

Enter your:

  • family name
  • given name (optional)
  • telephone number
  • mobile telephone number (optional)
  • email address (twice to confirm)

Select ‘Continue’.

Step 2: Enter your account details

  • enter your username or keep it as your email address
  • enter your password
  • choose your secret questions from the list
  • enter your answers to the secret questions
  • remember your exact answers, they are also case sensitive
  • set your security alerts

Select and read the ‘ImmiAccount terms and conditions’. Select the check box to accept.

  • Select the check box for ‘I am not a robot’. Select ‘Submit’.
  • The ‘Login successful’ page will show. Select ‘Continue’.
  • The DHA will send you an email. Select the link in the email to confirm your email address.

After you create your account you can straight away:

  • make an application
  • request access to organisation services
  • access LEGENDcom (requires the purchase/join of an annual subscription)

Start and manage an application

Read about the visa or citizenship in full before you apply. The step-by-step guide on each visa or citizenship page is personalised.

ImmiAccount allows you to:

  • Start a new application
  • Continue a saved application
  • Import an application
  • Share an application with another account
  • Send an incomplete application to another account
  • Remove an application

Steps on how to apply for an Australian Citizenship Certificate

Start an application for an Australian Citizenship Certificate

Before starting, check whether the applicant is eligible to apply or not.

  1. Login in to your ImmiAccount
  2. Select ‘New Application’
  3. Select ‘Evidence of Citizenship’ from the Citizenship dropdown menu

  1. You can ‘Save’ your application and continue anytime

  1. Once complete, read and agree to the terms and conditions

  1. Attach documents – these documents will depend on the information entered into the application
  2. You will be required to attach the necessary documents before being able to lodge the application

  1. Pay the application fee of AUD240.00
  2. Submit the application
  3. The DHA will be in contact with a decision on the applicatoin or they may request further information and/or evidence
  4. It is important that this information is provided within the timeframe the DHA give
  5. If the application has not been completed correctly or the information requested has not been provided the application may be refused

Information below is from the DHA ‘Pre Info Popup’ before making an application. Ensure you read through the information carefully.

Evidence for Australian citizenship online application process

This is an application for a person who is an Australian citizen to get evidence of their Australian citizenship. It is not an application to become an Australian citizen.


The applicant can apply for evidence of Australian citizenship if one of the following applies.

The applicant was:

  • born in Australia before 20 August 1986 and is an Australian citizen by birth
  • born in Australia on or after 20 August 1986 and at least one parent was a permanent resident or Australian citizen at the time of their birth
  • born in Australia on or after 20 August 1986 and spent the first 10 years of their life in Australia
  • previously issued with an Australian citizenship certificate (this includes children listed on a parent’s citizenship certificate) and is seeking to replace it
  • previously issued with an extract which showed their registration as an Australian citizen by descent
  • a permanent resident and adopted in Australia on or after 22 November 1984 and became an Australian citizen
  • born in the former Australian Territory of Papua before 16 September 1975 and retained their Australian citizenship
  • born outside Australia before 26 January 1949 to a father who was born in Australia, and the applicant arrived in Australia before 1 May 1987 and acquired Australian citizenship.

For more information refer to Get a citizenship certificate – Eligibility.


The application fee will be charged at lodgement. Generally, fees are not refundable.

Fee exemption

No fee is payable if the applicant is applying to replace a certificate that was lost, destroyed or damaged due to a declared natural disaster.

To receive the fee exemption, the disaster must be listed on the Australian Government Disaster Assist website and the application must be made within 18 months of the date listed for the disaster.

The fee exemption cannot be requested through ImmiAccount.

To confirm eligibility and for information on how to apply, visit our website Replace citizenship evidence after a natural disaster.

Attaching documents

If the application does not have all the required documents attached, processing of the application may be delayed.

A completed paper Form 1195 Identity Declaration and endorsed photograph must also be scanned and attached to the online application.

Any documents that are not in English must be accompanied by an official translation. For applicants in Australia, use a translator accredited by the National Accreditation Authority of Translators and Interpreters (NAATI).

For applicants living outside Australia, check the website of our office outside Australia for advice on acceptable translators.

Attach the official translation and the document which is not in English to the online application.

More information about translating documents is at Step 2 Prepare your documents.

Who should apply for an Australian Citizenship Certificate and why?

We recommend anyone who believes they are an Australian citizen should have a copy of their Australian citizenship certificate

This is because citizenship laws have changed many times and in some instances, people who believe they are Australian citizens may not in fact be Australian citizens despite being born in Australia or having Australian parents.

For example, a person:

  • may no longer hold Australian citizenship due to certain laws that applied during a particular time period
  • may no longer hold Australian citizenship due to laws around dual citizenship, pre 4 April 2002
  • may not be an Australian citizen despite being born in Australia
  • may not be an Australian citizen because they were adopted by Australian citizen parents as a child but were never granted Australian citizenship
  • may not be an Australian citizen because they were not included in their parent’s Australian Citizenship by Conferral applications whilst they were children

How does a person become an Australian citizen in the first place?

There are a number of different ways a person may have obtained Australian citizenship including:

  • Automatic Acquisition: a child born in Australia may have acquired citizenship automatically at their birth or on their 10th birthday.
  • Application by Conferral: a person may have received citizenship by conferral if they were considered a permanent resident prior to applying for and being granted Australian citizenship.
  • Application by Descent: a person may have received citizenship by descent if they were born outside of Australia to an Australian citizen parent, made an application for and granted Citizenship by Descent.
See the Department of Home Affairs website for more information

Why is it important to have an Australian Citizenship Certificate?

  • Confirms citizenship of people who cannot necessarily prove they are Australian citizens through other forms of official documentation e.g. birth certificate, Australian passport
  • An official government document that proves you are an Australian citizen
  • Used as evidence in certain situations such as applying for, or renewing an Australian passport
  • Birth certificates of people born in Australia do not always prove a person is an Australian citizen
  • At times Australian citizens may not be aware they no longer hold Australian citizenship due to past laws around dual citizenship
  • Former Australian citizens may need to resume their Australian citizenship
  • Note: Australian passports and Australian birth certificates are not always acceptable forms of evidence when trying to prove a person is an Australian citizen, due to various changes within laws over time.

Australian Citizenship information regarding children born to parents of all other nationalities (other than New Zealand citizens)

https://immi.homeaffairs.gov.au/citizenship/become-a-citizen/become-citizen-againA child born in Australia to parents of any other nationality are an Australian citizen at birth if:
  • The child has at least one parent that is an Australian citizen, Australian permanent resident or eligible New Zealand citizen; or
  • The child was born in Australia on or before the 19th August 1986 and meets any other prescribed criteria as set out in the Citizenship Act that existed at the time of the child’s birth
A child born in Australia to any nationality becomes an Australian citizen on their 10th birthday if:
  • The child was born to parents who were not Australian citizens nor Australian permanent residents on or after the 20th August 1986 and were ordinarily resident in Australia for the first 10 years of their life

Australian Citizenship information regarding children born to New Zealand parents

A child born in Australia to New Zealand citizen parents who are holders of the Special Category visa, subclass TY444 is an Australian citizen at birth if:
  • Either of the child’s New Zealand parents were *eligible New Zealand citizens otherwise known as ‘Protected SCV’ holders; or
  • The child has one parent that is an Australian citizen or Australian permanent resident; or
  • If a child was born in Australia to New Zealand parents (‘exempt non-citizens’) on or before the 19th August 1986; or
  • The child was born in Australia to New Zealand parents who held a SCV on or after the 1st September 1994, and on or before the 26th February 2001; or

(New rule as of 1 January 2023)

  • If a child was born to a New Zealand citizen after 1 January 2022 and their parent/s had applied for and were granted the Subclass 189 (New Zealand Stream) visa they are an Australian citizen at birth

A child born in Australia to Special Category visa holders, subclass TY444 (New Zealand citizen parents) becomes an Australian citizen at on their 10th birthday if:

  • The child was born to New Zealand parents on or after the 20th August 1986 and the 31st August 1994 and ordinarily resident in Australia for the first 10 years of their life


  • The child was born to New Zealand parents who are not eligible New Zealand citizens and ordinarily resident in Australia for the first 10 years of their life

*eligible New Zealand citizen

An ENZC is someone who meets at least one or more of the following criteria:
  • A NZ citizen who was present in Australia on 26 February 2001, held a subclass TY444 visa on that date and are still a New Zealand citizen


  • A NZ citizen who was not present in Australia on 26 February 2001, but was present in Australia for 365 days (or more) between 26 February 1999 and 25 February 2001 (inclusive)


  • Commenced (or recommenced) residing in Australia between 26 February 2001 and 25 May 2001 (inclusive) AND was assessed as a protected SCV holder AND was issued a Centrelink certificate that states you were living here at a particular time

How long does it take for a citizenship certificate application to process?

Processing times vary from month to month but in our experience it can take anywhere from 1 day to 6 weeks to process.

How much does it cost to apply?

​The Department of Home Affairs’ fee is $240 for each Citizenship Certificate.


Can Morunga Migration take care of my application for me and what are the costs?

  • Yes, we are able to assist you with preparing and lodging an Evidence of Citizenship application on your behalf.
  • We can provide a free Evidence of Citizenship assessment through our free callback service or by giving us a call on 0433 485 556 (Erina) or 0435 768 277 (Kathleen).
  • Once we have assessed your situation we can provide you with an estimated cost for our services.
  • If you wish to engage our services we will then provide you with a formal quote and Service Agreement to be signed followed by further instructions.

What evidence and documentation is needed?

​If evidence is required to prove the first 10 years of residency, then you can include (but not restricted to):

  • immunisation records
  • school records  e.g. school reports or a letter from the school confirming years of enrolment up to the child’s 10th birthday

​For children who were citizens at birth, evidence of parents’ immigration status is required such as a copy of the parent’s:

  • birth certificate
  • Australian citizenship certificate
  • permanent visa grant letter
  • movement records

​All other supporting documentation may include:

  • proof of address
  • identity documents of the child/applicant and their parents e.g. birth certificates, passports, drivers licences, marriage certificate
  • a passport sized photograph and a Form 1195 – Identity Declaration to be signed by a *suitable witness

*suitable witness must:

  • off the list of prescribed occupations
  • be an Australian citizen
  • known the applicant for at least 12 months
  • sign the back of the passport sized photograph
  • complete Q. 2 & 3 of the Form 1195

Further details can be found on the Department of Home Affairs website.

Can I hold dual citizenship of Australia and another country?

Since 4 April 2002 Australian laws allows Australian citizens to hold dual or multiple citizenships. Other countries however, may not allow dual/multiple citizenships in which case a person may lose citizenship of their other country once they become Australian citizens.

As a dual citizen, which passport should you use when you travel overseas?

  • It is recommend that dual Australian citizens should travel in and out of Australia on an Australian passport
  • It is also recommended that dual citizens enter other countries on their Australian passport

Note: Local authorities may not recognise a person is an Australian citizen which could limit their ability to access support from the Australian consulate should they need it

Our Recommendations

Once you receive a copy of your Australian Citizenship Certificate we recommend:

  • Making multiple copies and storing it in various forms and places such as:
    • Printing off colour photocopies of the front and back of your certificate
    • Scanning and emailing a copy to your trusted email address/es
    • Storing digital copies in a cloud-based folder
    • Taking a photo or scanning it to your devices
    • Putting your citizenship certificate into a picture frame and placing it on a wall or somewhere safe

Do NOT laminate, write on or change any details on your Australian Citizenship Certificate

Media Coverage about Australian Citizenship

When Matt got Irish citizenship, he lost his Australian citizenship. But he didn't find out until 20 years later

Article by Erin Handley, ABC News – 10 February 2023
Matthew Niall has always seen himself as Australian to the core, but he recently found out a decision to get an Irish passport more than 20 years ago led to him being stripped of his Australian citizenship.

On New Year’s Eve on the cusp of 2022, the Department of Home Affairs sent the 41-year-old an email that left him reeling.

It said it did not believe Mr Niall was an Australian citizen at all — and that he hadn’t been for the past two decades.

That’s despite voting in elections, travelling on his Australian passport, and getting Australian citizenship for his son in 2008.

It was because of a little-known law that saw adult Australians who got a second citizenship automatically lose their Australian citizenship.

The issue of lost citizenship could potentially affect thousands of people who may not even realise it, and it often only comes to the department’s notice when they apply for citizenship for their children.

Mr Niall, who was 19 when he got his Irish citizenship and passport, said he was blindsided and had no idea about the automatic loss of his Australian rights.

“It was devastating. It was horrible,” he said.

“I couldn’t believe it … This is some sort of mistake.

“If I’d known about this legislation, I never would have done it … It just felt like a nightmare.”

It’s now had distressing consequences for him and his family.

How did it go unnoticed for 20 years?

Mr Niall was born in Sydney and lived in Australia for the first 21 years of his life.

He had what he describes as a typically Australian childhood, full of weekends spent at the beach, which fostered a love of the outdoors and an adventurous spirit.

In part to connect with his grandfather’s Irish heritage, he applied for Irish foreign births registration and was granted his second citizenship in September 2001.

His Irish passport would later help Mr Niall travel and work in Europe.

Currently living in Copenhagen, Mr Niall said he always hoped to return to Australia, but circumstances kept him in Europe for the past two decades.

In his early 20s, he met a woman in Denmark and they had a son together, Alexander, who is now 16.

When the relationship ended, he chose to stay in the European nation to remain close to his son.

“He’s my son. I couldn’t leave him, I didn’t want to leave him,” he said.

He later met a Swedish woman, Louise, and they now have two daughters, Ellie and Norah, aged three and one.

In late 2021, as pandemic border restrictions eased, he and Louise began taking steps to travel to Sydney, which included acquiring Australian passports for their young daughters.

But at that juncture, the Department of Home Affairs told him he had lost his citizenship.

Under section 17 of the 1948 Citizenship Act, an Australian citizen over the age of 18 who takes up a second citizenship “shall, upon that acquisition, cease to be an Australian citizen”.

That section previously required a person to be outside Australia when they acquired their second nationality, but it was amended in 1984 to include adults who got a second citizenship from within Australia, as Mr Niall did.

On April 4, 2002, about six months after Mr Niall got his Irish passport, that section of the law was repealed.

But it didn’t work retroactively or reinstate lost citizenships, leaving Mr Niall and his children in a quagmire.

He was given a window to prove he had not ceased to be a citizen and he requested time extensions to gather paperwork, which were initially granted, but in June last year, his citizenship was revoked.

With that, his passport was rendered invalid. He was no longer eligible for consular services overseas, and he lost his right to vote and his right of visa-free entry into Australia.

After scrambling to get Swedish passports for his daughters, the young family was eventually able to visit Sydney last year — before his passport was cancelled — but not without hassle and his parents lobbying their local politician about their son’s situation.

People who have lost their citizenship under this outdated law can apply to resume their citizenship, a process that carries a fee of $210 and requires a person to show they are of “good character”.

The processing takes an undisclosed amount of time.

The Nialls said they had spent hundreds of hours and thousands of dollars on a migration lawyer to try to resolve the issue.

There are also consequences for Mr Niall’s children. They can no longer get Australian citizenship by descent because Mr Niall was not technically a citizen at the time of their births.

Instead, they must apply for citizenship by conferral, which the minister must approve or refuse.

From their home in North Sydney, Mr Niall’s parents, Roz and Christopher, said it was inconceivable that their son was not Australian, and they said the ordeal had taken a toll.

“It’s ridiculous. It’s unbelievable really,” his mother said.

She said her husband had been conscripted into the Australian Army during the Vietnam War, and that two of Matthew’s grandparents had served in World War II and sustained lifelong injuries.

“My father was a Rat of Tobruk. Chris’s mum was a nurse in the army,” she said.

“I don’t think we could be more Australian.”

Is it legal to remove citizenship?

Kim Rubenstein, a legal scholar at the University of Canberra, said there was an underlying question about whether the automatic loss of citizenship was lawful, but had never been tested in court.

 ”The stripping and loss of citizenship is dramatic,” she said.

“It has significant consequences on people’s lives.

“People understand this is a very unfair consequence, and one that should really be remedied.”

North Sydney independent federal MP Kylea Tink has written a letter to the minister of Home Affairs about his case.

“The thing here that I find extraordinary is that we have a citizen who was able to revoke their citizenship accidentally,” she said.

“Surely if you’re in a situation where you are about to sign away your citizenship, that should be something that should be coming up in big flashing lights.”

She is calling on the government to find a compassionate solution.

“I think it’s bureaucracy gone mad. It doesn’t have to be like this. Just because computer says no, doesn’t mean that human intervention can’t step over and go, ‘But this is what’s right’.”

Professor Rubenstein said there could be a legislative fix.

“The most straightforward way would be for parliament to remedy the scenario and to recognise that people who may have … lost their citizenships, to be reinstated as if it had never been lost,” she said.

But there was also an opportunity to challenge the original legislation as unconstitutional — although it could be costly.

“I think there would be an argument to say that the automation of someone’s loss of citizenship has a punishing effect on an individual, even if that wasn’t the intention of the legislature,” she said.

The Nialls are considering that approach.

“It’s been unrelenting stress [and] trauma for a year, and I feel the way my son and his family has been treated is really, really wrong. I don’t want that to happen to other people,” Mrs Niall said.

Thousands affected before law change

In April 2002, section 17 of the citizenship act was repealed.

The minister for Citizenship and Multicultural Affairs at the time, Gary Hardgrave, heralded the change in legislation in a press release.

“This provision of the legislation was outdated, particularly given the large number of Australians overseas and the reality of global labour markets,” he said at the time.

“Around 600–700 people come to the notice of my department each year as having lost Australian citizenship when they become citizens of another country.”

The change was made “so that adult Australian citizens in future do not lose their Australian citizenship on acquisition of another citizenship”.

However, the change did not benefit Australians who had already lost their citizenship under the old law.

In a statement, the Department of Home Affairs said there was no ministerial intervention power in relation to citizenship losses under section 17, but that people who lost their citizenship could apply to resume it.

Home Affairs Minister Clare O’Neil and Minister for Immigration, Citizenship and Multicultural Affairs Andrew Giles declined to comment to the ABC.

But in a letter to Ms Tink, Mr Giles said it was not possible to “reinstate” citizenship, only to “resume” it.

“A person who is approved for resumption of Australian citizenship becomes an Australian citizen on the day they are approved to become an Australian citizen again; it does not apply retrospectively to the date they lost Australian citizenship,” he wrote.

“Due to the automatic nature of section 17 of the 1948 Act, where no application to the Australian Government was necessary and no decision was involved, losing one’s citizenship can, understandably, cause a great deal of shock and distress.”

Mr Giles wrote that often the department was left “unaware of the loss” of citizenship.

“It may not come to light until a later interaction with the department, if at all,” he wrote.

Mr Giles added that Mr Niall may return to Australia, but if he was not a citizen at the time of travel, he would need to apply for a visa to enter the country.

Despite thousands being affected before the repeal, it remains unclear how many people have been told they’re not citizens since 2002.

Due to variations in how citizenship losses have been recorded over time, the Department of Home Affairs does not have an existing data set on the total number of people who have been notified that they lost their citizenship under section 17 since 2002.

The department said it was not possible to estimate how many living Australian citizens lost their Australian citizenship prior to April 2002.

Mr Niall said the issue had not come up in 2008 when he acquired Australian citizenship for his son, who had always called himself half-Australian, but has now had his passport revoked too.

“My son has lost his citizenship. He’s obviously devastated about that … That was a difficult conversation,” Mr Niall said.

Mr Niall is speaking out and has started a petition because he fears there may be many others unknowingly affected.

“This whole situation, it is absurd,” he said.

“There hasn’t been an appetite to make the change within the federal legislation or within parliament.

“I’d like them to step up and fix this. I don’t want anyone else to have to go through what I’ve been through.”

He said it felt like an intrinsic part of his identity had been taken away.

The thought of needing a visa to enter a country he has always called home also worries him, and he fears not being able to get to Australia quickly in the event of a family emergency.

“I’m terrified that something’s going to happen to my parents. They’re getting a bit older now,” he said.

“Having lived overseas, I don’t feel any less Australian.

“I feel exactly the same in terms of how I feel about my country, my upbringing — all those values that I got from growing up in Australia, I still have, and I pass them on to my children.”

Editor’s note: A previous version of this story stated that Australian adults who acquired a second passport between 1948 and 2002 automatically lost their citizenship. The article has been corrected to clarify it was the acquisition of a second citizenship, not a passport alone, that triggered the forfeiture of Australian citizenship.

The article has also been updated to clarify that between 1948 and 1984, section 17 referred to Australian adults who acquired a second citizenship while outside Australia. In November 1984, it was amended to remove the requirement to be outside of Australia.

Matthew Niall did not realise his Irish passport would cost him his Australian citizenship.

Are you a dual citizen? You might have lost your Australian rights without knowing

Article by Erin Handley, ABC News – 11 February 2023

Many people living, voting and paying tax in Australia may have technically been stripped of their citizenship and not even realise it.

It’s because of the now-repealed section 17 of the 1948 Citizenship Act.

Between 1948 and April 4, 2002, Australian adults who got a second citizenship automatically lost their Australian citizenship.

And between November 1984 and April 2002, they didn’t even have to be outside Australia when they took up their second citizenship to trigger the loss of their Australian rights.

That was the case for Matthew Niall, who had his Australian passport cancelled last year because he became an Irish citizen more than two decades ago.

His case has highlighted the plight of those caught in legal limbo, with experts saying it shows the “dysfunction” of our citizenship legislation.

So how did we get here, when can citizenship be stripped under the law, and what are some solutions?

Why was the law changed?

On April 4, 2002, the federal government repealed the law, saying at the time the change was needed to keep in step with a new globalised world.

Up to 700 Australians had been losing their citizenship each year.

Philip Ruddock, who was the immigration minister under the Liberal government, told the ABC he spearheaded the move to have section 17 repealed.

“The reason for the change was that there were people making representations to government,” he said, especially those who had returned to the UK and wanted the opportunity to take up British citizenship and travel more freely in Europe.

But Mr Ruddock said making the legal change apply retrospectively wasn’t something his government considered at the time.

“I hadn’t contemplated giving those who had forsaken their nationality the opportunity to resume it, and I’ve had no representations at any time since that change was made for that to occur,” he said.

To do so, he suggested, would be to “impose” Australian citizenship on people who “may have wanted to renounce it deliberately”.

The repeal also remedied an inconsistency in the law.

Between 1984 and 2002, a foreign-born person could take up Australian citizenship and keep their first nationality — if their country of origin allowed it — making them dual citizens.

But Australian-born people could not take up a second citizenship and keep their Australian citizenship.

Ignorance of the law ‘no excuse’

Mr Ruddock said at the time, the law operated as intended, and ignorance of the legislation was “no excuse”.

“You can’t speed on a road and say, ‘Oh, I didn’t know, I was ignorant. I didn’t know this was a speed limit on this road’.”

He said it was normally up to foreign governments to tell Australia if an Australian had been granted citizenship.

In Mr Niall’s case, “the approach that I would take is to encourage the young person involved, to seek to engage with the present government, with a view to ascertaining whether they can have their citizenship restored,” Mr Ruddock said.

Law ‘not at all clear’

Migration lawyer Karyn Anderson said she received a couple of clients each year who had lost their citizenship due to section 17 — and it can impact them in substantial ways.

She said it could become a “bureaucratic nightmare”, especially when trying to get citizenship for children — something that could be more complicated once they are over 18.

“I’ve had clients who’ve been voting in elections, have been using Australian passports,” she said.

“It wasn’t at all clear.”

She said each foreign process was different, and it was not always someone’s “sole and dominant purpose” to acquire a second citizenship.

She referenced “oleh status”, where Israeli citizenship is bestowed on permanent residents, from which they must opt out.

She also mentioned Italian-born Australians who returned to Italy and automatically acquired Italian citizenship.

So what happens if I lost my citizenship without knowing? Do I need a visa?

The current Immigration Minister Andrew Giles said in a letter that lost citizenships might never come to light.

For those who are overseas, their passport is cancelled and they are forced to rely on their second citizenship.

For those who are on Australian shores when their citizenship ends, they are granted an “ex-citizen” visa automatically under the law.

That is a permanent visa that allows the person to live here, but it ends the moment the person departs the country.

To re-enter, they would have to apply for another visa.

Can I get my citizenship back?

People who lost their citizenship while in Australia are advised they can apply to resume it and become an Australian citizen again.

It costs $210 and the person must satisfy the Department of Home Affairs that they are of “good character”.

Ms Anderson said while there was a pathway to resume citizenship, “it is certainly possible for it to be refused — it’s not a rubber stamp”.

If someone had close connections to Australia and spent their formative years here, she questioned whether it was appropriate to refuse them on character grounds.

She also said applications could be refused not just for criminal convictions, but also for failing to answer questions correctly on a form.

“Afghan clients who often don’t have a naming tradition, who don’t have a clear surname and first name, who adopt a name, because they’re required to because of our processes, are then met with all sorts of difficulties when they apply for citizenship,” she said.

“So it’s not only identity issues, but also character issues. Did they do that on purpose to help a family member come out from a war zone?”

What about stripping people of citizenship due to alleged terrorism?

Citizenship debacles have made headlines in recent years – from the dual citizenship fracas that engulfed many elected members of parliament, to legal grey areas and attempts to deport Indigenous non-citizens.

The former government’s steps to strip dual nationals suspected of terrorism offences of their Australian citizenships has triggered a wave of legal opinions.

Last year, a man suspected of joining Islamic State, Delil Alexander, won a High Court challenge against the government’s decision to revoke his citizenship.

In that case, the High Court ruled the stripping of someone’s citizenship was so serious it should only be handled by a judge, and the home affairs minister could not take it away.

Dr Sangeetha Pillai, a constitutional lawyer at the Kaldor Centre for International Refugee Law, wrote the High Court’s finding meant that section of the law, section 36B, was invalid.

“This means that anybody who was stripped of their citizenship under that provision is an Australian citizen again,” she wrote for Australian Public Law.

The government said 22 people had been stripped of their citizenship over alleged terrorism, but only two lost citizenship under section 36B.

‘An extremely serious matter’

Prior to this court case, back in 2019 the Australian Human Rights Law Commission wrote in a submission on citizenship losses due to terrorism that “involuntarily removal of citizenship is an extremely serious matter”.

“Roman law, for example, referred to this action as civiliter mortuus or ‘civil death’ for the affected person.

“Errors in the application of these provisions could mean that a person’s right to enter and remain in their own country, Australia, are seriously and arbitrarily impaired, having adverse consequences for numerous other human rights.”

Mr Niall said when he told people he had lost his citizenship he was met with disbelief or worse — a suspicion he had done something terrible to warrant his citizenship being taken away.

Legal scholar Kim Rubenstein, a professor at the University of Canberra who has been consulted on citizenship law, said because of the amount of attention there has been surrounding citizenship and terrorism, the public may draw inaccurate parallels.

“I think that there would be an understanding through the community that this is an unfair association between terrorist activity and someone’s changed dual citizenship,” she said.

She added one of the grounds for the High Court ruling was that the stripping of citizenship was punitive, even if that was not the intention of the legislation.

Case highlights systemic issues

Sanmati Verma, managing lawyer at the Human Rights Law Centre, said Mr Niall’s case prompted further questions.

“This is an unfortunate case of an administrative oversight, which has meant that a former citizen was not advised of his altered legal status for 20 years and treated for all intents and purposes as an Australian citizen,” she said.

“While there is a ‘fix’ in this case, in the form of a further citizenship application, there are bigger questions to be asked about the way that applications are processed and decisions are made within the citizenship section of the Department of Home Affairs.

“This is just one example of the dysfunction that characterises citizenship-related processes — people are waiting for record periods for their citizenship applications to be processed, and the department often demands impossible evidence of identity and former residence, even from people who have lived in the Australian community for decades and have no connection with the country in which they were born.”

What are some solutions?

Ms Anderson said there could be a question written into passport forms, asking an applicant if they had taken out another citizenship.

“There would be ways of ensuring that every time an Australian applies for a new passport, they’re asked that question, and it doesn’t take decades for the department to work out,” she said.

Professor Rubenstein has also suggested there could be a way for parliament to make a legislative fix, and re-instate citizenships as if they had never been lost.

“I think the spirit that any government should be taking in thinking about citizenship law should be one about inclusion,” she said.

She said when a person who had lived their whole life as an Australian was suddenly told they were not a citizen, it could be seen as an injustice and didn’t sit well with the broader community’s understanding of citizenship.

Professor Rubenstein added an inclusive approach to citizenship law was needed for a cohesive and egalitarian society.

“If you think of citizenship like marriage, then of course we have a commitment to monogamy and you only have one partner,” she said.

“But if you think of citizenship like parenting, then when you’re a parent, and you … have a second child, no-one ever questions that you are in some way diminishing your relationship with your first child.”

Editor’s note: A previous version of this story stated that Australian adults who acquired a second passport between 1948 and 2002 automatically lost their citizenship. The article has been corrected to clarify it was the acquisition of a second citizenship, not a passport alone, that triggered the forfeiture of Australian citizenship.

The article has also been updated to clarify that between 1948 and 1984, section 17 referred to Australian adults who acquired a second citizenship while outside Australia. In November 1984, it was amended to remove the requirement to be outside of Australia.

When Troy went to renew his Australian passport he was told he wasn't a citizen. This is what happened next

Article by Stefan Armbruster, SBS New – 1 August 2021

EXCLUSIVE: After a near five-year battle, Australian citizen Troy Lee has won a landmark legal case against the Department of Home Affairs and is now hoping for a seven-figure payout. This is how he went from doing a routine passport renewal to being threatened with statelessness and detention.

Almost five years ago Troyrone (Troy) Zen Lee did what thousands of Australians do every day; applied to renew his passport.

What he did not expect was to be told he was not Australian.

Born in pre-independence Papua New Guinea, Troy fell victim to the Department of Home Affairs’ stubborn misinterpretation of the Citizenship Act.

The department said he stopped being Australian when PNG gained independence from Australia in September 1975. But Troy was born in PNG’s capital Port Moresby a few months before that, in the May, meaning he automatically gained Australian citizenship.

A letter from then immigration minister Peter Dutton in 2017 confirmed the department’s position; that Troy – who had held an Australian passport for decades – was Papua New Guinean.

“I was shocked. Shocked. Never ever did I imagine this,” Troy, 46, told SBS News.

Troy grew up and studied in Brisbane. He had been working overseas and was visiting Australia in 2016 when he decided to renew his Australian passport.

“I was just a regular guy living with my wife and son in a small apartment, working in Taiwan,” he said.

Then he got the news.

“They basically said: ‘no, no, no, you’re not Australian’. All I could think was, ‘This can’t be right.’”

“It’s one of the most frustrating, uncertain periods in your life. You’re basically nobody. Who deserves this? Why?

The full bench of the Federal Court has now ruled Troy is Australian and that the minister and department made “mistakes”.

But those mistakes cost Troy his job in Taiwan as he stayed in Australia to fight the case, prevented him from seeing his wife and child who remained overseas, and caused him mental health issues.

As a result, the court has recommended the Commonwealth now makes a rare ‘act of grace payment’ for the suffering and hardship he endured over those years.

It is unknown how much that amount could be, but Troy is hoping for a seven-figure sum.

Facing statelessness

Possibly thousands of other Australians born before 1975 in what was then the Territory of Papua could have been caught up in a web of legislative and procedural changes over the years.

Many have faced claims by the Commonwealth that their passports and citizenship certificates were incorrectly issued for up to four decades.

“So where does he go? He becomes in effect stateless based on their actions, and you’re not supposed to make a person stateless,” his lawyer said.

“There are international conventions Australia has signed up to, but they didn’t seem to care about that.”

During early negotiations with the department, relations soon soured.

“They even called me up to say I had to be put into detention, for some reason,” Troy said.

“It’s just common sense; if you throw an Australian citizen into detention for no reason, that’s a fundamental human rights issue.”

That issue was previously addressed 16 years ago by the Palmer Inquiry into the immigration detention and deportation of about 200 Australian citizens, including Cornelia Rau and Vivian Solon Alvarez.

The then immigration minister, Liberal senator Amanda Vanstone, announced $50 million for training for staff in what was then the Department of Immigration to usher in a culture change.

A long fight

Under the Australian law that granted PNG independence and the new PNG constitution, a person who was born in the territory and had two grandparents from there automatically became a PNG citizen and lost all Australian rights.

There were exemptions though, including for naturalised Australians, like Troy’s parents.

Troy is of Chinese ethnicity. His father’s Australian citizenship was granted in 1964 and his mother’s in 1973. Both his younger siblings, born in post-independence PNG, obtained Australian citizenship by descent.

But Troy’s case proved the odd one out.

“Going to court was a fundamental step I needed to take to get out of the immigration department’s system because it was just going around in circles,” he said.

With citizenship law specialist Professor Kim Rubenstein on his legal team, Troy took successive ministers and the department to court.

Not allowed to work, he began digging for historical material in the Queensland University Library to support his case.

“I read archive material where the department has always helped people recover their citizenship. There was a culture of helping Australians,” he said.

“There’s something that’s changed in the mindset of the department.”

‘Exclusion rather than inclusion’

Professor Rubenstein worked on the immigration department’s review and drafting of the Australian Citizenship Act 2007. She said “extremely serious” mistakes were made in Troy’s case.

“Someone within that department reinterpreted … and effectively said that just because someone’s parents were Australian citizens by naturalisation, did not necessarily mean that they had a right of residence in Australia,” she said.

“We’re seeing more and more decisions where the department arrives on the side of exclusion rather than inclusion, and that is not consistent with the objectives of the act.”

After the Federal Court ruled Troy was in fact an Australian citizen in 2019, The Department of Home Affairs appealed. It still claimed he was an “immigrant” and should not have the Australian citizenship he had held for more than 40 years.

Three judges, in a unanimous decision in May this year, then dismissed the appeal.

“The discriminatory privilege of access to Australian citizenship by naturalisation enjoyed by, materially, ethnic Chinese residents of the Territory of Papua was well understood at the time … [by] competent authorities,” they said.

“There is no evidence at all that either the minister of those advising him in his department ever acted in bad faith,” they added, “only that they were mistaken”.

They recommended the government make an act of grace payment due to Troy’s “emotive and economic loss”.
His whole life has been turned upside down by the department.

The department did not lodge an appeal to the High Court by the deadline last month, so the judgement stands.

“Hopefully this government will take notice [but] I don’t think the minister will apologise, nor will the department,” Troy’s lawyer said.

“They should make an ex gratia payment to him. Basically, his whole life has been turned upside down by the department.

“They’ve broken their own rules and people lose faith in a government when they don’t follow their own rules. It goes to the root of democracy.”

A significant judgement

Professor Rubenstein has fought with the department over numerous citizenship cases and says this was a “significant” judgement.

“This is a vindication for the approach we have been advocating for a number of years,” she said.

“The court decision becomes the legal precedent, the law interpreting that aspect of Australian citizenship for those born in Papua pre-independence, and the department should be notifying the outcome to those individuals whose cases they are reviewing,” she said.

Troy believes he deserves the act of grace payment.

“I haven’t had an income since 2017, I didn’t have work rights, my family was running out of money, I had a mortgage to pay. I’ve been denied the fundamental right to support my family,” he said.

SBS News asked the Department of Home Affairs if it accepted the judgement, what changes it would make to citizenship review procedures, why it did not check Troy’s case with the PNG government, the number of similar cases it knew of, if it would support an act of grace payment, and if Troy would receive an apology.

In its response, a spokesperson said the Immigration Minister Alex Hawke “is currently considering the implications of the judgment. Accordingly, it would not be appropriate to comment further”.

The experience has shaken Troy’s faith in the department.

“I feel Australian and I’m very proud to be Australian,” he said. “[But] how do I, how does anybody trust the department?”

“And then it got me thinking, how many of these cases have they got wrong?”

Now Troy has his Australian passport back, he just wants to go to Taiwan to see his family.

“All of this just because of a blue book,” he said.

“I didn’t really feel much emotion, I just want to move on. I feel relieved, now with this court decision, it will never come back.

“I hope this never happens to anybody again. Nobody should have to go through that. You’d think there was some compassion from the department? No.”

Man facing deportation despite believing he was Australian freed after landmark court ruling

A father-of-seven who has lived in Australia for more than 40 years believing he was an Australian citizen has had his deportation order overturned in a landmark Federal Court ruling.

Edward McHugh, 52, was born in the Cook Islands and adopted by a Queensland family in the 1970s when he was six years old. He went on to father seven Aboriginal children and was granted an Australian passport, leading him to believe he was a citizen.

But after being convicted in 2018 of aggravated assault and making a threat to kill, he was shocked to discover he was facing deportation to New Zealand after serving a nine-month prison sentence under section 501 of the Immigration Act, as revealed by SBS News in 2018.

He spent more than two and a half years in immigration detention centres in Perth and Melbourne until a landmark appeal ruling by the full bench of the Federal Court last Friday granted him his freedom.

“I was jumping out of my boots,” Mr McHugh told SBS News from Melbourne of the moment he heard he would be released.

“I’m feeling free and I feel like justice has been served … I always knew who I am.”

The ruling relied on the centuries-old writ of habeas corpus which is used to rule on whether the detention of a person by the state is unlawful.

It is only the second time in Australia’s recent history that habeas corpus has been used to free someone from immigration detention.

In handing down the ruling, Chief Justice James Allsop reversed a previous decision on whether the Federal Court had the jurisdiction to make orders to release people from detention, and therefore found that Mr McHugh’s detention was unlawful, ordering his immediate release.

A key ruling as to the lawfulness of the detention was that the onus was on the government to provide sufficient evidence that Mr McHugh – who spent long periods living within Aboriginal communities, where he held a ceremonial role – was not an Indigenous Australian, and therefore able to be deemed an unlawful alien.

“[Mr McHugh] is recognised by the Aboriginal community in which he has lived for many years as Aboriginal and part of that community, but who is (at least presently) unable to bring positive proof of his biological Aboriginal descent,” Chief Justice Allsop wrote in his judgement.

“The task of the Commonwealth … is straightforward, at least in expression, and a simple reflex of Mr McHugh’s elementary and fundamentally important right to his liberty free from unlawful Executive detention: prove the lawfulness of his detention.”

The judgement followed a protracted legal battle to have Mr McHugh’s right to remain in the country reassessed.

In June, the Federal Court ordered acting Immigration Minister Alan Tudge to reconsider the cancellation of Mr McHugh’s visa after earlier refusals.

The government had argued Mr McHugh had never received Australian citizenship as his adoption to Australian parents did not mean he was a citizen as it took place before the laws were changed to allow automatic citizenship in 1984. He had also never applied for citizenship by descent, they said.

His Australian passport was revoked following the conviction but no explanation has been provided as to why his Queensland birth certificate and adoption papers allowed him to be granted one in the first place.

According to the Department of Home Affairs, Mr McHugh was in Australia on an Absorbed Person Visa, a visa category that does not require the holder to be aware of their visa status.

This was revoked following his prison sentence in February 2018.

The court did not dispute the department’s position that Mr McHugh did not hold citizenship or a valid visa. All residents of the Cook Islands are automatically granted New Zealand citizenship.

Marleen Charan, founder of advocacy group Rights and Reform Inc., supported Mr McHugh through his legal challenge and told SBS News the ruling was “high time coming”.

“It took a long time for them to assess this application,” Ms Charan said.

“Although it took a long time, it is a result that we’ve been waiting for – and I guess, a lot of detainees were waiting for.”

A Department of Home Affairs spokesperson said they were aware of the Federal Court’s ruling and were considering the reasons for the court’s decision and the implications of the judgement.

Yes, you can hold an Australian passport but not be a citizen. Here's how

Article by Jan Gothard, The Conversation – 4 September 2019

Being born in Australia does not make you an Australian citizen.

The Tamil family with two Australian-born daughters on Christmas Island awaiting a decision on their future knows this only too well.

In some countries, such as the United States, children born there automatically become citizens of that country.

But in Australia, this isn’t the case.

In Australia, the automatic birthright to citizenship ended on August 19, 1986, under section 12 of the Australian Citizenship Act 2007.

Children born in Australia from August 20, 1986 are only Australian citizens by birth if, at the time of their birth, at least one of their parents was an Australian citizen or permanent resident.

If they meet this criterion, they can obtain a passport.

But while the rules on who has a birthright to Australian citizenship are clear, the rules on how a child can prove this birthright are anything but.

The Department of Foreign Affairs and Trade (DFAT), which issues Australian passports, says: “Only Australian citizens can be issued with Australian passports”, but the Department of Home Affairs sometimes has other ideas.

This has had a negative impact on children who might fall into the gap between the passport and citizenship requirements of these two government departments.

Most of the time, acquiring an Australian passport at birth, based on providing standard evidence of identity, like birth certificates, means citizenship for life.

In some instances, though, Home Affairs has the power to request, arbitrarily and with no explanation, that further evidence be provided to justify a child’s citizenship, even DNA testing.

DNA testing to prove citizenship

In one recent case our firm dealt with, the foreign mother of an Australian child who had an Australian passport was told she needed to produce evidence of citizenship for her son, even though he was born in Australia and his father had always held Australian citizenship.

The family birth certificates and passports she had provided when successfully obtaining her child’s passport were “not deemed sufficient evidence” of citizenship.

She was required to obtain a “certificate of citizenship” from Home Affairs. And to get this, DNA testing was requested to prove the Australian citizen was indeed the biological father of the child in question.

But the mother’s relationship with the child’s father had broken down irreparably at the time of the child’s birth, and the father refused the DNA test.

DNA testing was not compulsory, Home Affairs advised. Other methods could be used to prove the relationship between the father and son was biological.

But the alternative social evidence recommended by Home Affairs, and supplied by the mother, included exhaustive personal, hospital, social work and government records.

They detailed the mother and child’s contact with the father and grandparents before and after the birth. This was still deemed “not sufficient”.

In effect, this shows DNA has become the only acceptable evidence, despite Home Affairs’ claims.

The outcome, Home Affairs advised, is that the child’s passport will be cancelled and the child will lose his status as an Australian citizen.

In another example, the father of a child in care, an Australian passport holder, was asked to do a DNA test as part of the process of obtaining a certificate of citizenship for the child.

He was estranged from the child and the mother, and so he refused. Home Affairs made its assessment of paternity based on that refusal, and the child’s passport and citizenship were cancelled.

Losing citizenship from ‘insufficient’ evidence

Citizenship can be revoked and a passport consequently cancelled in limited circumstances — mostly relating to criminal or security issues.

There is no provision in the Australian Citizenship Act 2007 for the cancellation of citizenship held by a child under 16 who became a citizen at birth.

Yet it is happening.

Our firm has recently seen an increase in cases where the citizenship status of a child passport holder has been challenged if the child’s mother is a temporary resident.

While investigating a mother’s circumstances, Home Affairs delegates have required children — Australian passport holders with citizenship acquired through their father — to verify their citizenship by obtaining “certificates of citizenship”.

In these recent cases, the evidence usually required to obtain such a certificate — relevant birth certificates linking the child to the father, and evidence of citizenship or permanent residence of the father at the time of birth — has been rejected as insufficient.

The common thread is the absence of the father, where family relationships have broken down.

The child is consequently caught in a bureaucratic tangle: their birth certificate identifying their father remains valid, but Home Affairs refuses to accept this.

Evidence of paternity can’t always be provided when families break down

For Home Affairs, sometimes the standard evidence of identity isn’t enough to justify a child’s citizenship.

And where a relationship has broken down, or if a father has moved on physically or emotionally from the child, there may be no way of providing biological proof of that paternity.

The onus of proof in this case is on the child or its mother, with Home Affairs providing no explanation why such evidence may be necessary or relevant.

A child’s birth certificate signed at the time of birth by an Australian citizen father, or social evidence of a paternal relationship, can count for nothing here.

What’s disconcerting is the apparently unfettered right of Home Affairs to request additional evidence of citizenship from children who already hold Australian passports, granted following the normal protocols, without any need for Home Affairs to explain on what basis such information is sought.

This is at odds with the practice under the Migration Act 1958, which acknowledges principles of “natural justice”.

Cancelling children’s passports and withholding citizenship — effectively a consequence of their absent father and their parents’ inability to maintain a harmonious relationship — seems clearly unjust.

Refusing to accept certificates issued by state Registrars of Births, Deaths and Marriages, and overturning the capacity of the Department of Foreign Affairs and Trade to issue passports based on its own sets of rules, is yet another indicator of the enormous and — despite its denials — unchecked power of Home Affairs.

If birth certificates no longer suffice as evidence of paternity, perhaps we’ll all be looking at DNA testing in the future.

Jan Gothard is an adjunct associate professor of law at Murdoch University and a Registered Migration Agent (MARN 1569102). She works as a health and disability specialist for Estrin Saul Lawyers, Perth.The author wishes to thank Alice Graziotti, also of Estrin Saul Lawyers for her contributions to this article.

They're putting us through hell': PNG-born Australians furious at citizenship bungle

Article by Helen Davidson, The Guardian – 3 March 2019

Australia says it incorrectly issued passports after ‘administrative error’ more than 40 years ago

A catch-22 of citizenship laws has rendered an unknown number of PNG-born Australians temporarily stateless and fuming at the government’s failure to recognise their citizenship.

Thousands of people may be affected by the “administrative error” that Australia says resulted in citizenship certificates and passports being incorrectly issued over more than 40 years.

A situation that arose from a tangle of complicated citizenship law, bureaucratic bungling and tighter immigration rules has left people distressed at the loss of their identity, in fear of deportation and furious at the financial and emotional toll.

Until 1975, Papua New Guinea was administered by Australia, and people born in Papua (the south-eastern part of the island that was a commonwealth territory) were entitled to a level of Australian citizenship. At independence, those with at least two Papuan grandparents automatically acquired PNG citizenship. But in an unknown number of those cases the Australian government led people to believe they remained Australian citizens.

In 1994, to rectify that error, the government created special circumstances visas for such people, but neglected to inform them. Those with Australian passports simply renewed them without hindrance. But with the recent tightening of regulations requiring people renewing passports to prove their citizenship again, former Papuans who thought they were Australian have received a nasty shock, sometimes at the worst possible moment.

In February Vitoula Bird, the daughter of an Australian second world war veteran and a Papua New Guinean woman, and niece of the famed outback aviator Nancy Bird-Walton, was racing the clock.

She needed to travel to PNG within two days to visit an 81-year-old uncle who had had a stroke, but was told her life-long Australian citizenship was a mistake, and she had no visa which allowed her to be in Australia.

Bird was born in 1957. She and her family left PNG shortly before independence, spending 18 months in Europe before arriving in Australian in 1976. She said she had received her first Australian passport in 1974, and they had been issued consecutively until 2009.

In correspondence seen by Guardian Australia, the home affairs department told her the government had made an “administrative error” some decades back which led a “small number of people” born in Papua to believe they were Australian citizens when they were not.

“The department incorrectly issued you with evidence of your Australian citizenship on 20 September 1985,” it said, and asked her to return her now-voided citizenship certificate “as soon as possible”.

Bird was given two options: obtain a bridging visa, which would legalise her presence in Australia but not allow travel; or apply by post for a permanent residence return visa, at a cost of $375. Both would take some time.

“The government is denying me passage to go to PNG to visit my uncle who may be on his deathbed,” Bird told them. Her uncle died the following day.

At the same time Bird received a letter from PNG authorities informing her she was not a PNG citizen, because she had Australian citizenship. Each country insisted she didn’t belong to it, because both believed she belonged to the other.

Home affairs confirmed for the moment she was effectively stateless.

Bird’s case is not unique – her two sisters have been through the same experience, including one who served in the Australian Defence Force for 30 years.

“They’re putting us through hell,” Bird said. “After 40 years you’d think the government would recognise they made a mistake and the PNG government had made a mistake by not telling us we lost our rights in 1975.”

The scale of the problem is unknown but may involve thousands of people. The department has no numbers. Some cases have unsuccessfully gone to the high court, and some are included among the controversial “character test” deportations of people who have spent their lives in Australia.

At the time of the 2011 census, there were almost 27,000 PNG-born people living in Australia, more than 10,000 of them born before PNG independence.

Bird says she knows of several people who believe the Australian government has grown increasingly hostile to non-citizens and fear deportation.

Both Australia and PNG have said she is eligible for citizenship under their respective laws, she just needs to go through the process.

But it’s the process that has upset people.

“We’re faced with all these challenges and obstacles, and everyone is upset. They said they would fast-track [our applications] but that’s not the point,” Bird says.

She has started a Facebook group, Australian citizens born in Papua New Guinea, hoping it draws others out to seek support or to campaign for an amnesty.

“That would be the right thing to do … not [making them] pay for their citizenship and writing off their whole life,” she says.

“It’s caused so much stress. I know what it’s done to my family, but there are so many other people who probably haven’t had the outlets and support my family’s had.”

Bird has since been placed on a bridging visa to legalise her presence while she applies for citizenship.

The home affairs department told Guardian Australia determining the status of this cohort “can be complex as it involves the interpretation of both Australian citizenship law and the PNG constitution”.

The department said it was aware of the concerns among Australia’s PNG-born cohort and had set up pathways specifically for them “to regularise their status and apply for Australian citizenship”.

The department said current law did not allow for the creation of any amnesty, or applying retrospective citizenship, and that there was “no ability under the regulations to waive the fee for such cases”.

'This is my home': Woman fears deportation after 56 years in Australia

Article by Aaron Smith, NITV, 2 November 2018

A war hero’s daughter – who was born in Papua New Guinea – faces deportation and has gone into hiding.

When Australian woman Catherine Bird had her passport renewal declined and citizenship revoked two years ago, it revealed a failing in our constitution and of the sovereign rights of Australia’s citizens. It has serious implications for both citizens born in external Australian territories and those with dual citizenship.

An aged-care nurse assistant from Cairns, Ms Bird, 62, is not a criminal or a terrorist, but has gone into hiding after a bridging visa expired this week and she was threatened with detention and deportation by the Department of Immigration.

Australian passport ‘incorrectly issued’

Ms Bird is the niece of the famous Australian aviator Nancy Bird-Walton who has a Sydney metro tunnel named after her. Ms Bird is one six children of decorated Australian WWII veteran John Bird who from the age of 15 served in both the U.S. Army and Australian merchant vessels during WWII in the South Pacific.

After the war John Bird married Mary Sale, a Papuan woman and they lived in Port Moresby. All of Mr Bird’s children were born in Papua prior to PNG’s independence in 1975, when it was still an Australian Protectorate, which automatically granted them Australian citizenship at birth.

All six siblings attended boarding school in Charters Towers, Queensland, and all have lived in Australia since.

Ms Bird has had an Australian passport since she was 18 and was issued a certificate of Australian Citizenship in 1985. She has been living in Australia since the age of six.

When Ms Bird’s citizenship was revoked in 2017, for being “incorrectly issued,” Immigration informed her she needed to apply for a Resident Return Visa (RRV) as a beginning process to get her citizenship. However Ms Bird is refusing on the grounds that she has been an Australian citizen her whole life.

“I was absolutely gob-smacked. I have lived here for 56 years, this is my home I haven’t lived anywhere else including PNG,’” Ms Bird said she was told by Immigration they may knock down her door down, detain her and send her back to a country where she has not been since she was six years old.

“I’ve worked here, I’ve paid taxes here, I’ve voted here – I’m a good citizen, I’ve never even had a parking ticket. They said the department made a mistake and issued me a citizenship certificate wrongly.

So somebody made a mistake which I think they should fix, why should I have to fix it?” she said.

Ms Bird was told she had to apply for a RRV, but she has refused, “because I haven’t returned from anywhere, I’ve been in Australia the whole time.

But they said I had to apply for that visa and if I get it apply for my citizenship and if I don’t get it then I have to go back to where I came from, but I don’t come from anywhere but here – it’s ridiculous.

If I apply for that visa when I haven’t returned from somewhere, then I am telling a big lie, so I don’t want to do it.”

Ms Bird was told she was issued a resident visa in 1994 to stay here which expired in 2006.

“But I knew nothing of it, so I said show it to me, give me a copy – I have no record of this.”

So Ms Bird was issued the visa without her knowledge, a visa that she didn’t even know she had or needed, and when that visa expired she was unbeknownst to her in breach on immigration.

‘No man can stand in more than one canoe’

While the Department of Home Affairs have refused to comment on the case, Federal Member for Leichardt Warren Entsch said: “there’s no way she will ever be deported,” and that “her bridging visa has been automatically extended for six months,” and that will continue to be as long as she delays to apply for her RRV.

However Ms Bird said today that Immigration told her, her bridging visa is only valid until mid January.

All of Ms Bird’s siblings have had to go through a similar process, and her older sister Mary-Anne Bird, who has served for three decades in the Australian army reserves, has also been instructed to apply for a RRV, which she has done. It is Catherine Bird who is refusing and challenging the system.

While being born in Papua, when still an Australian Protectorate automatically granted citizenship at birth, after 1975 and subsequent law changes by the PNG government is where things became complicated, where PNG lawmakers decided dual citizenship was not allowed, or that “no man, it is said, can stand in more than one canoe.”

Then the Australian Government created legislation in 1975 that removed Australian citizenship from anyone who became a PNG citizen on Independence Day, including Papuans living in Australia and without them necessarily be aware of the change.

Before Independence Day, those who were born in Papua would generally have Australian citizenship derived from the Nationality and Citizenship Act 1948, later renamed the Australian Citizenship Act 1948.

University of Queensland Associate Professor and Reader in Law, Peter McDermott wrote in a 2009 paper about the Papuan problem. He said:
“The relevant Australian Citizenship Instructions that were operative at the time of Independence outlined the circumstances in which a Papuan would be granted the right of permanent residence on the Australian mainland:

Right of permanent residence was automatic for children born in Papua of non-Indigenous descent. Those of Indigenous descent were required, as a matter of policy determined by Cabinet, to apply for the right of permanent residence in mainland Australia. Government policy gave the Minister the discretion to grant the right of permanent residence to such persons on application if they had been bought up in a European manner, had English as their principal language and were European in outlook.

Dr Peter Prince, ANU law expert said in a 2005 paper on this that “the second class status of Australian ‘citizens’ in external territories such as Papua is a reminder of the prejudiced attitudes of Australia’s past, including the White Australia policy.”

So Ms Bird is fighting the remnants of these racially biased laws, but she is not the first person to challenge this immigration greyzone. An unsuccessful 2005 High Court challenge by a Papuan born Australian led constitutional law expert Genevieve Ebbeck to say at the time:
… an Australian citizen has no constitutionally guaranteed right, deriving from his/her citizenship, to enter Australia … If it is correct to say that an Australian citizen possesses no right to enter and remain within Australia, the fundamental worth of his or her citizenship becomes questionable.

The 2005 case has implications for Australian citizens with dual Nationality and from the external territories Cocos (Keeling) Islands, Christmas Island and Norfolk Island.

Facing deportation from Australia for overstaying his visa, Mr Amos Bode Ame, born in 1967 argued that he was an Australian citizen by birth and had never lost this status.

However the High Court declared that people born in Papua were never ‘full’ or ‘real’ Australian citizens, and that their inferior form of Australian nationality disappeared when Papua and New Guinea became one independent nation in 1975.

One of the Judges on the case, Justice Kirby noted that nobody asked if he wanted to give up his Australian citizenship. He said at the time under Australian law he lost this automatically on PNG independence:
…without the specific knowledge or consent of the applicant, without renunciation or wrongdoing on his part, notice to him, due process or judicial or other proceedings, he was purportedly deprived of his Australian citizenship.
Ms Bird, who is currently seeking legal advice, is steadfast in not wishing to apply for a visa to country she believes she is a citizen of, albeit a second class one, and this may well again challenge the constitution’s position on what a citizen is and what rights it provides.

Bloody devastated': Family members of aviation pioneer have citizenship challenged

Article by Nick O’Malley, SMH, 1 November 2018

Nancy-Bird Walton’s younger brother John was just 15 when the merchant ship he served on in World War II was torpedoed by Japanese submarine I-180 off the New South Wales coast. He was one of 19 survivors rescued by the USS Patterson and is the last of them still alive.

Ms Walton went on to become one of Australia’s most celebrated pilots, an Officer of the Order of Australia, and her name would one day appear upon Qantas’s flagship A380 aircraft.

By war’s end John Bird had been awarded honours by both Australia and the United States, having served in the merchant navies of both nations. He moved for a time to the Australian protectorate that is now Papua New Guinea, where he married his Papuan wife and had five children before returning to Australia.

Each of the children were immediately registered and granted Australian citizenship, and when they turned six they were packed off to boarding school in Sydney. There they spent their weekends and holidays with their aunt, Nancy-Bird. One of John’s daughters is Mary-Anne, who at 64 remains an active member of the Australian Army Reserve, which she has now served for 29 years.

So it has been a shock to the whole family that the Department of Home Affairs is now challenging the citizenship of all the children. Mary-Anne has been forced onto a bridging visa which will expire in the new year.

Another daughter, Cathy, went on the run after a Border Force officer told her she might be arrested and detained at any time pending her deportation to Port Moresby. Donald Bird is currently teaching English in Thailand and may have trouble returning should his passport expire.

John Bird, now 91, is worried for his children and furious at the family’s treatment.

“I was bloody devastated. They are Australian. I am Australian. I have been a member of the RSL for 50 years and I get a veteran’s pension. The immigration department positively hounded them,” he said.

Cathy first discovered that her citizenship was being questioned by the Department in 2016 when she went to renew her passport. A couple of days after submitting her fee and the appropriate forms she received a call from the department saying that it did not consider her to be a citizen and demanding she apply for a Returning Resident visa.

“I told them, ‘I can’t, I haven’t returned from anywhere, I’m here, I’ve always been here,” she says. “It is just being told you that you don’t belong that hurts the most.”

Later she was informed that according to the Department she had been issued a visa in 1994 that expired in 2006 and she needed to sort out her status. She says she has no idea what the Department is talking about, that during that period she lived in Australia, holding an Australian passport, and that the Department has refused to show her the visa it is referring to.

Finally in September she was contacted by a case officer in Cairns and instructed to apply for a bridging visa. She claims her case officer bullied and intimidated her in a meeting, telling her that he could – and would – remove her from her flat at any time.

“He said he could break down my door and he would be happy to do it,” says Cathy. “It is common knowledge up here [in far North Queensland], people are scared of Border Force.”

She was granted a one-month bridging visa which expired on October 31. Last week she locked up her Cairns apartment, had Mary-Anne drive her to the airport and went into hiding in rural NSW.

Fairfax Media understands that since media made enquiries to the Department on Thursday morning, the bridging visa was extended.

Mary-Anne’s battle with the department began later when she sought to have her own passport renewed. Like Cathy, she does not know why her citizenship is being questioned. “I am serving in the Australian Army. I have had my security check. You can’t serve in the Army if you are not a citizen,” she says.

Like Cathy, she has been forced onto a bridging visa, though she was given three months rather than one.

In recent days Cathy confessed to a friend that she had for a time considered suicide. “It was just so disheartening. I thought, ‘How can I keep this fight up? How can I live like this?'”

Dan O’Brien, the secretary of US Army Small Ships Association, a group founded to assist Australian veterans, said over recent days members of the group, along with the Maritime Union of Australia, the Merchant Navy Association of NSW and the American Legion had raised money to help the Birds pay for legal assistance.

He said it was his understanding that when the Department of Immigration combined with other Australian government arms, including Border Force, to become the Department of Home Affairs, regulations – or the interpretation of regulations – about the citizenship of Australians born to mixed marriages in Papua New Guinea changed.

If this was the case, he says, those affected by the changes should have been notified and assisted rather than threatened with deportation.

“This is not how you treat a family that has given so much to this country,” he said.

Asked why the Birds’ citizenship had been challenged and how many people might be affected by changes to regulations, a spokesperson for the Department of Home Affairs declined to comment on individual cases due to privacy concerns.

After hearing Cathy’s bridging visa was extended, Mr O’Brien, called on the government to apologise to the Bird family and settle the question of their citizenship conclusively.

Five ways you can lose your Australian citizenship

Article by Davide Shiappapietra, Heba Kassoua, SBS Italian – 17 August 2018

Are you a dual citizen? Your Australian citizenship is a not-so-inalienable right.

Last week, Home Affairs Minister Peter Dutton announced that five people had been stripped of their Australian citizenship due to involvement with IS and “serious terrorist-related activity”.

Since the inception of the Australian Citizenship Act 1948 there have been a total of 44 revocations under section 34, a spokesperson from the Department of Home Affairs (DHA) said.

“In addition, six individuals fighting for or providing support to Islamic State offshore have ceased to be Australian citizens,” the DHA spokesperson added.

In fact, before last week, only another individual, Khaled Sharrouf, had been stripped of Australian citizenship under the 2015 anti-terror laws.

But participating in overseas in terrorist activity is only one occurrence in which the Government can take away someone’s citizenship. The Minister for Home Affairs has the power to revoke someone’s citizenship in case it is proven that a citizen has, for example, provided misleading information as part of their citizenship application. This even if the citizenship has already been granted.

And since 2015, has been introduced a broad new area where someone can lose their Australian citizenship if they engage in various conducts which the Parliament has referred to broadly as being inconsistent with your allegiance to Australia.

But which are those activities and who decides if an activity is consistent with a person’s allegiance to Australia?
Let’s start with the basics.

Only dual citizens are at risk

Only dual citizens are at risk of losing their Australian citizenship as Australia does not allow someone to become stateless.

“Only dual citizens can be stripped of their Australian citizenship, which adds another dimension of inequality because two people can engage in the same activity, such as terrorist activity overseas, but only the dual citizen will be in danger of losing their Australian citizenship. If you are only an Australian citizen you cannot have that taken away”, said Professor Kim Rubenstein, an expert in citizenship law and Public Policy Fellow at the Law School of the Australian National University.

According to section 32A of the Australian Citizenship Act 2007, there are 5 ways you can lose your Australian citizenship

1. You may renounce your Australian citizenship

Interestingly, just because you want to it does not mean that you have an automatic right to do it.

The Minister still has to make a decision and he cannot allow you to renounce your citizenship if that means that you are left stateless. So basically you have to prove that you are a dual citizen and that you will keep the other citizenship in order to be allowed to renounce the Australian citizenship.

2. Circumstances involving offences or fraud

If you did not automatically become an Australian citizen, (for instance if you applied for Australian citizenship as a migrant), the Minister can revoke your citizenship in circumstances involving offences or fraud, and those offences are related to giving false and misleading information or fraudulent activity around your citizenship application.

According to the DHA spokesperson, these circumstances may include occurrences where the person has acquired Australian citizenship and has been convicted of making false claims in their application, or failed to disclose a serious criminal conviction.

In other words, you haven’t given the Government the full material to be able to make a proper, informed decision on your citizenship.

3. Failure to comply with special residence requirements

If you did not automatically become an Australian citizen the Minister can revoke your citizenship in circumstances involving your failure to comply with special residence requirements.

The special residence requirements are those conditions under which someone is given Australian citizenship for special services provided to Australia.

An example of a citizenship given under those special circumstances was Pakistan-born cricket player Fawad Ahmed, whose fast-tracked citizenship allowed him to play for the Australian test cricket team.

4. Conduct inconsistent with allegiance to Australia

Under section 35 of the Australian Citizenship Act 2007 (the Act), a dual national’s Australian citizenship will automatically cease if they act contrary to their allegiance to Australia, by engaging in terrorism-related conduct, or if they fight for, or are in the service of, a declared terrorist organisation overseas, according to the DHA.

The notion of “conduct inconsistent with allegiance to Australia” comprises terrorism activity overseas but the terminology can imply a much broader interpretation.

“There is also a new provision that is called ‘conviction for terrorism offences and certain other offences’. So if you are a person who is in Australia and you are convicted in Australia for terrorism offences under the Australian Criminal Code, then the Minister has the power in those situations to strip you of your citizenship “, Professor Rubenstein said.

According to Professor Rubenstein, the capacity for Parliament then to think beyond terrorism as a marker of allegiance gives to the government much more power than before in determining the activities that can be punished with the loss of citizenship.

“This is the broad new area where you engage in various conducts which the Parliament has referred to broadly as being inconsistent with your allegiance to Australia. The Parliament decides what activities are included”.

“What is it to stop a government in the future from choosing other things to identify as not reflecting one’s allegiance to Australia?”, Professor Rubenstein said.

One example could be a behaviour we find unacceptable in Australia, like paedophilia, which is currently dealt with through criminal law. According to Professor Rubenstein, in the future, a government could decide that any dual citizen convicted for that crime is in a way reflecting a lack of allegiance to Australian values.

“I am concerned about the boundary between criminal law and citizenship law being blurred here. What I would prefer is that these sort of activities that are clearly unacceptable in our liberal democratic society should be dealt with through the criminal law system rather than using citizenship law as a form of punishment.”, Professor Rubenstein said.

5. If you are the child of a responsible parent who ceases to be an Australian citizen

If you are the child of a responsible parent who ceases to be an Australian citizen, the Minister can revoke your citizenship in some situations.

These are the cases in which a dual citizen can lose their Australian citizenship.

But for those who are still applying for an Australian citizenship, there are various cases in which their application can be refused.


It is important to note that having fulfilled all the citizenship requirements which include having lived in Australia for 4 years in which you were a permanent resident for 12 months or over doesn’t necessarily mean that you will be eligible to obtain Australian citizenship.

The Department of Home Affairs announced earlier this year that it has refused 4,151 citizenship applications in the financial year 2016-2017. 1,866 of those were the applications of people who failed the current Australian Citizenship test.

“To be refused a citizenship even after fulfilling all the requirements set out by the Department of Home Affairs is not uncommon” Migration lawyer Judy Hamawi explains.

“There are many reasons the Department of Home Affairs can refuse someone’s citizenship application, these include the applicant failing to pass the Character Test or having been convicted of a crime and sentenced to 12 months of jail”.

“Leaving Australia after applying for your citizenship for a substantial amount of time can be another reason the Department refuses your application as moving overseas or living abroad for a certain amount of time may indicate that you do not intend to live in Australia after obtaining your citizenship” Ms Hamawi adds.

The character test remains the blurriest area which the Department can base their decision of refusing someone’s citizenship application as repeated traffic offences, domestic violence convictions and fraud charges can also be considered an indication of bad character according to Ms Hamawi.

“The Australian Government takes the integrity of Australia’s citizenship laws very seriously and is committed to protecting the Australian community, including children, from harm as a result of criminal activity.” the spokesperson at the Department of Home Affairs said.

Fact file: The dual citizenship crisis

Article by Jenny Magee, ABC News – 6 December 2017

Australia has lost nine Senators and two members of the House of Representatives since the July 2016 federal election.

And the uncertainty around citizenship and the eligibility of MPs and senators shows no sign of abating.

How did we get here and what comes next?

RMIT ABC Fact Check takes stock in this fact file.

The timeline

Until recent events, the last politician to be found ineligible for election to the Commonwealth Parliament was One Nation Senate candidate Heather Hill in 1998.

Ms Hill was ruled ineligible because she held dual citizenship of the United Kingdom and Australia.

But since the 2016 election, 11 Senators or MPs have resigned under a cloud or been found ineligible to sit in Parliament.

How did we get to this point?

Arguably, the saga began when members of the Government sought advice on the status of then Family First senator Bob Day.

Here are the key dates:

August 2016

Senator Day is contacted by then special minister of state Senator Scott Ryan to discuss issues regarding his electoral office, including rental payments.

Senator Ryan later consults Attorney-General George Brandis and Prime Minister Malcolm Turnbull and obtains legal advice.

October 2016

The Government refers the question of Mr Day’s eligibility to the Senate for further consideration.

Around the same time, Senator Brandis obtains a legal opinion about the eligibility of One Nation West Australian Senator Rod Culleton, raising it with the then Senate president, Stephen Parry (who has since resigned due to his own ineligibility).

November 7, 2016

Government senators push for the matters to be referred to the High Court.

January 10, 2017

Senator Culleton is removed from the Senate, having been declared bankrupt two weeks earlier.

April 6, 2017

The High Court rules Senator Day’s election invalid due to him having an “indirect pecuniary interest” through his ultimate ownership of a Commonwealth-funded electorate office.

July 14, 2017

Greens senator Scott Ludlam announces his resignation, revealing he is a New Zealand citizen.

“I was naturalised when I was in my mid-teens and assumed that was the end of my New Zealand citizenship,” he says.

Evidence subsequently given to the High Court indicates that Mr Ludlam became an Australian citizen when he was 19 years old.

July 18, 2017

Greens senator Larissa Waters announces her resignation after discovering she is also a citizen of Canada.

Ms Waters was born in Canada to Australian parents, which automatically made her a Canadian citizen under the law at the time.

July 19, 2017

Prime Minister Malcolm Turnbull is highly critical of the Greens, telling Adelaide Radio 5AA:

“It is extraordinary that two out of nine Greens Senators made that mistake.

I mean it’s not as though it’s a secret. It is in the Constitution. That’s one thing, but also when you nominate for Parliament there’s actually a question that says please … tick the box and confirm that you are not in breach of Section 44 and the various provisions that are set out there …

[T]hese two Greens senators were careless and they’ve paid the price for it.”

Mr Turnbull also tells Channel Nine’s Today show that Ms Waters and Mr Ludlam demonstrated “incredible sloppiness” and “extraordinary negligence”.

July 20, 2017

Mr Turnbull tells Melbourne radio:

“I don’t think it is unreasonable for the Constitution to require that if you want to be a Member or a Senator in the Australian Parliament, you should be a citizen of only one country and that’s Australia …
Now why somebody who knew they were born in New Zealand or in Canada would not have said: ‘Gosh, I better make sure I’m not still a citizen,’ why they wouldn’t have turned their mind to it and dealt with it, is beyond me.”

July 25, 2017

Liberal National senator Matt Canavan, the Minister for Resources and Northern Australia, announces he is stepping down as he may be an Italian citizen.

August 9, 2017

One Nation Senator Malcolm Roberts is referred by the Senate to the High Court on the suspicion that he was a British citizen at the time he nominated for Parliament.

August 14, 2017

Deputy prime minister Barnaby Joyce reveals that he may a citizen of New Zealand.

August 17, 2017

Deputy Nationals leader Senator Fiona Nash announces that she may be a British citizen; the matter is referred to the High Court.

August 18, 2017

Crossbench senator Nick Xenophon claims that he may be a British overseas citizen.

September 20, 2017

Justice Patrick Keane of the High Court finds that Malcolm Roberts was a British citizen at the time he nominated for the Senate.

October 27, 2017

The High Court finds that Mr Ludlum, Mr Roberts, Mr Joyce, Ms Nash and Ms Waters were all ineligible to stand for Parliament as they held citizenship of another country at the time they nominated.

October 31, 2017

Senate president Stephen Parry says that he may be a British citizen because his father was one. He resigns from the Senate the following day.

November 11, 2017

Liberal MP John Alexander resigns after days of speculation about his citizenship status, confirming he may be a British citizen by descent (through his father).

The Liberal Party is reported to have obtained legal advice, seen by the media, suggesting that two Labor MPs — Justine Keay and Susan Lamb — and the Nick Xenophon team MP Rebekha Sharkie are ineligible as they did not complete the British citizenship renunciation requirements by the time they nominated.

November 13, 2017

The Senate agrees to create a citizenship register. The deadline for senators to submit declarations regarding their citizenship and background is set for December 1.

November 14, 2017

Independent senator Jacqui Lambie resigns from the Senate, as she is a British citizen by descent.

She says that her grandfather “hadn’t, in fact, renounced” his British citizenship.

Ms Lambie says “This makes my dad a Brit by descent and, therefore, it makes me one too”.

In fact, Ms Lambie’s father was also born in the UK, meaning it was her, not her father, who was a British citizen by descent.

November 22, 2017

Nick Xenophon Team senator Skye Kakoschke-Moore resigns from the Senate.

She is a British citizen by descent — her mother was a British citizen and Ms Kokoschke-Moore was born after January 1, 1983.

Previously, women did not automatically pass British citizenship to daughters born before 1983.

December 4, 2017

The House of Representatives creates its own citizenship register, with members required to provide information about their citizenship and background the following day.

December 6, 2017

Labor senator Katy Gallagher refers herself to the High Court to assess her eligibility to sit in Parliament.

Senator Gallagher’s mother was born in Ecuador to British parents and her father was born in the United Kingdom. She herself was born in Australia.

Documents provided to the citizenship register show she that she lodged an application to renounce her British citizenship with the UK Home Office before the 2016 election, but did not receive confirmation of the renunciation until August 16, two months after nominations closed.

What has been the law?

Section 44(i) of the Australian Constitution deals with the disqualification of members who hold citizenship of another country or have an allegiance to a “foreign power”.

It states that any person who:

(i) Is under any acknowledgment of allegiance, obedience, or adherence to a foreign power, or is a subject or a citizen or entitled to the rights or privileges of a subject or a citizen of a foreign power…shall be incapable of being chosen or of sitting as a senator or a member of the House of Representatives.

Professor John Williams of the University of Adelaide Law School tells Fact Check:

“Section 44 in general is about conflicts of interest. You cannot work for the Government and run for Parliament, you cannot have a financial relationship with the Government, you cannot be a bankrupt (a reflection on your standing the framers assumed), not a convicted person and lastly not a citizen of another country. There is some logic to it.”

Before the current citizenship debacle, the High Court had closely considered section 44(i) on two occasions: the 1992 case Sykes v Cleary and the 1999 case Sue v Hill.

The former is the more important case and was followed closely by the High Court in its recent judgment.

Independent candidate Phil Cleary, previously a schoolteacher, had been elected to the House of Representatives, but his eligibility was challenged on the basis that he had held an office of profit under the Crown (as he was on leave at the time from his government school).

The second-placed (John Charles Delacretaz) and third-placed (Bill Kardamitsis) candidates were Australian citizens, had been born in Switzerland and Greece respectively and had not gone through the formal renunciation processes required by those countries.

The majority of the court (five out of the seven judges, with Justices William Deane and Mary Gaudron dissenting) found that a citizen who is a subject or citizen of a foreign state had to take all reasonable steps under the foreign state’s laws to renounce that nationality, before being eligible to stand for election in Australia.

And what is reasonable?

Justice Daryl Dawson, part of the majority, stated:

“What is reasonable will depend upon the circumstances of the case.

It will depend upon such matters as the requirements of the foreign law for the renunciation of the foreign nationality, the person’s knowledge of his foreign nationality and the circumstances in which the foreign nationality was accorded to that person.”

Justice Deane took a different view, suggesting that an Australian-born citizen should only be disqualified if “he or she has established, asserted, accepted, or acquiesced in, the relevant relationship with the foreign power”.

What is a foreign power?

Since the latest controversy erupted, some have suggested that section 44(i) of the constitution is out of date and should be changed.

Interestingly, it is not the constitution but its interpretation that has changed over time: in the past, the same section 44(i) would probably not have disqualified citizens of Britain or Commonwealth countries such as Canada or New Zealand.

There was no separate Australian citizenship until 1948 and until 1987 Australian citizens continued to be described in law as “British subjects”.

But the law as it stands today, as set out in the 1998 case of Sue v Hill, is that any citizenship of a country other than Australia is citizenship of a “foreign power”.

Professor Kim Rubenstein of the Australian National University Law School has previously told Fact Check:

“A couple of generations ago, members of Parliament would have been able to hold both British and Australian nationality.

“But given the decision in [Sue v Hill], we know at some point this ceased to be the case.”

In its decision, the court could not say precisely when Britain became a “foreign power”, but it accepted that this was probably the case by the mid-1980s.

Professor Anne Twomey of the University of New South Wales Law School has previously told Fact Check:

“The High Court has not so far clarified the time at which the change re: foreign allegiance and the UK was actually made.

“It may be that it can pin it to a date … but because that was unnecessary in Sue v Hill, the justices did not try very hard to get agreement on the date (and did not have that issue fully argued before them).”

“However, this was the factor that aggravated Callinan, as he found it most unsatisfactory that such a change could be made, affecting the rights and status of people, without anyone knowing or being able to identify what had caused it.”

Former MP John Alexander’s situation demonstrates the changing nature of Australian nationality.

Mr Alexander’s father was born in the UK in 1907 and came to Australia around 1910, aged three.

At the time he migrated to Australia (and for the next 41 years), there was no such thing as Australian citizenship.

His British nationality did not make him a foreigner or someone with allegiance to a “foreign power”.

John Alexander’s father may have been able to renounce his British nationality between 1948 and 1951 (the year when his son was born).

But given that both British and Australian nationals at the time were deemed “British subjects”, taking action to renounce British nationality in favour of an Australian one would have been unusual.

The changing legal interpretation of “foreign power” also suggests that had Mr Alexander entered politics in the 1970s when in his 20s, he may have been ruled eligible to stand even while retaining British nationality.

The latest decision

Unlike the earlier decisions on section 44(i), the High Court’s latest decision was a strong and definitive one: there were no dissenting judgments.

Although it was open to the court to decide however it wished, it closely followed the reasoning of the majority in the Sykes v Cleary decision.

The High Court apparently aimed for an outcome that gave certainty and stability.

Some key points:

  • The key is the date of nomination. All reasonable steps to renounce other citizenship have to be taken by that date.
  • Ignorance is no excuse: a person will be caught by section 44(i) even if they were unaware they had dual citizenship. The court said:

    “[T]o accept that proof of knowledge of the foreign citizenship is a condition of the disqualifying effect of s 44(i) would be inimical to the stability of representative government.

    “Stability requires certainty as to whether, as from the date of nomination, a candidate for election is indeed capable of being chosen to serve, and of serving, in the Commonwealth Parliament.”

  • A person does not need to have sought out foreign citizenship. The court rejected the view of former Justice William Deane in Sykes v Cleary that section 44(i) should be limited to cases where the “relevant status, rights or privileges have been sought, accepted, asserted or acquiesced in by the person concerned”.

    It said “the approach taken by Deane J draws no support from the text and structure of section 44”.

  • A candidate needs to go to the effort of finding out their citizenship status. The court said:

    “[W]hile it may be said that it is harsh to apply s 44(i) to disqualify a candidate born in Australia who has never had occasion to consider himself or herself as other than an Australian citizen and exclusively an Australian citizen, nomination for election is manifestly an occasion for serious reflection on this question; the nomination form for candidates for both the Senate and the House of Representatives requires candidates to declare that they are not rendered ineligible by s44…

    “In the nature of things, those facts must always have been knowable.”

    “A candidate need show no greater diligence in relation to the timely discovery of those facts than the person who has successfully, albeit belatedly, brought them to the attention of the Parliament.”

  • Whether a person is a citizen of foreign country is “as a general rule, answered by reference to the law of that country“.
  • All reasonable steps have to be taken under the relevant foreign law — it is not enough to make a “reasonable effort”.

Adelaide’s Professor Williams tells Fact Check that he was “not surprised” by this finding.

“The court was mainly responding to an argument put by the Attorney-General that the ‘reasonable’ steps only took hold once you became aware of your entitlement,” he says.

“That argument was firmly rejected.”

The ANU’s Professor Rubenstein, similarly, says she was “not surprised at all”.

“The decision was entirely consistent with Justice Brennan’s judgment in Sykes v Cleary — just a clearer explanation of what was already the law.”

How did Senators Canavan and Xenophon survive?

In essence, Senators Canavan and Xenophon survived because the court concluded that they were not citizens of a foreign power.

Senator Canavan’s entitlement to Italian citizenship arose through his maternal grandparents, who were born in Italy.

Italian citizenship is not bestowed automatically and since Mr Canavan did not complete the registration process, the court found he was not an Italian citizen.

Senator Xenophon does have “British overseas citizenship”, which is a residual citizenship available to some people from former British colonies.

It is of little practical use and does not allow holders to live or work in the UK.

The court found that it did not confer on Senator Xenophon the typical rights of citizenship and did not require him to declare an allegiance to a foreign power.

How did the Government get it so wrong?

If the experts were unsurprised by the result, why did the Government get it so wrong?

Before the High Court handed down its decision, the Prime Minister outwardly demonstrated confidence in a favourable result and on one occasion actually predicted (incorrectly) what the High Court would do.

The Government told the public that it had strong legal advice from the Solicitor-General.

On August 14, Mr Joyce told Parliament:

“The Government has taken legal advice from the Solicitor-General.

“On the basis of the Solicitor-General’s advice, the Government is of the firm view that I would not be found to be disqualified by the operation of section 44 of the constitution from serving as the member for New England …

“Given the strength of the legal advice the Government has received, the Prime Minister has asked that I remain Deputy Prime Minister and continue my ministerial duties.”

In Question Time, Prime Minister Malcolm Turnbull said

“Based on the advice we have from the Solicitor-General, the Government are very confident that the court will not find that the member for New England is disqualified from being a member of this House — very confident indeed.”

And then later, the Prime Minister added “The Leader of the National Party, the Deputy Prime Minister, is qualified to sit in this House, and the High Court will so hold”.

On August 31, the Prime Minister said:

“[B]ased on the advice we have from the Solicitor-General, we are confident that the three ministers and Senators Canavan and Nash and the [Deputy Prime Minister] Barnaby Joyce will be found to be qualified to sit in the Parliament.”

And on Sky News on September 7, Mr Joyce said:

“The Solicitor-General’s advice was, basically, they said you’re more than likely to win.”

What did the Solicitor-General’s advice say?

Either the Solicitor-General’s advice was wrong, or that advice was misrepresented by the Government.

In view of its importance to the citizenship debate, Fact Check lodged a freedom of information request for the document on September 7, 2017.

By law, the Attorney-General’s office had to respond within 30 days of the request (October 8) unless granted an extension of time.

A response arrived on October 30 — three days after the High Court’s decision — with no explanation given for the delay.

Access had been denied on the basis that the advice was subject to legal professional privilege.

Fact Check has appealed the FOI decision to the Australian Information Commissioner, but understands there is a six-month backlog of cases, meaning a ruling on access to the Solicitor-General’s advice would appear unlikely before mid-2018.

Who’s next?

There are at least six more politicians under a cloud over citizenship issues: Labor’s Justine Keay, Josh Wilson, Katy Gallagher, David Feeney and Susan Lamb and the Nick Xenophon team’s Rebekha Sharkie.

Based on existing court rulings, candidates in the 2016 federal election needed to have renounced any foreign citizenship by June 9, 2016, the closing date for nominations.

  • Ms Keay, a Tasmanian MP, says that her renunciation of British citizenship was received by the UK Home Office on May 31, 2016. However, the UK did not provide confirmation of renunciation until July 11, 2016, which was after the 2016 federal election.
  • Mr Wilson, a Western Australian MP, completed a renunciation of British citizenship form on May 12, 2016 and sent it to the Home Office on May 13, however it was only registered on June 24, 2016.
  • Senator Gallagher also reportedly made her British citizenship renunciation application prior to June 9, but only received a response in August 2016.
  • Ms Sharkie apparently made a renunciation application on April 19, 2016, but only received confirmation on June 29, 2016.

Mr Feeney is in a different situation. According to his statement in relation to citizenship filed with the House of Representatives on December 5, his father was born in Belfast, Northern Ireland, which is part of the United Kingdom.

This means that Mr Feeney may have citizenship of both the United Kingdom and the Republic of Ireland.

Mr Feeney claims to have renounced any entitlement to either citizenship in October 2007, but as at time of writing has not provided any proof of doing so.

For Ms Lamb, a Queensland MP, the situation is different again.

According to her October 2016 maiden speech to Parliament, her father was born in Scotland, UK.

Under British nationality law, she is a British citizen by descent as her parents were married at the time she was born (March 23, 1972).

Ms Lamb claims that she applied to renounce her British citizenship in May 2016 by completing and sending off the required form.

The form itself does not include a section for details of how the applicant obtained British citizenship (for example, by descent).

The British Home Office’s guidance notes for renunciation applications state: “If you have your citizenship or status through descent from a parent or grandparent, you should send documents proving that person’s citizenship or status and your relationship to him or her.”

However, according to Ms Lamb’s statement in relation to citizenship (provided to the House of Representatives citizenship register on December 5, 2017):

  • Ms Lamb “did not enclose any evidence with the Form”.
  • On or around July 7, 2016 the UK Home Office informed Evan Moorhead, the Queensland State Secretary of the ALP, that “in order to process [Ms Lamb’s] application they required her birth certificate, her father’s birth certificate and her parents’ marriage certificate”.
  • On August 1, 2016, Mr Moorhead forwarded the birth certificates of Ms Lamb and her father to the Home Office.
  • On August 10, 2016, the Home Office wrote to Ms Lamb refusing the renunciation application. The letter stated that the office “cannot be satisfied from the documents available that you hold British citizenship”.

It has been reported that Ms Lamb could not provide her parents’ marriage certificate as she is estranged from her mother.

However, it is usually possible for a third party to obtain proof of divorce.

It is unclear if Ms Lamb has exchanged any further correspondence with the Home Office, or if she has made any further renunciation attempts since August 2016.

If (as seems likely based on publicly available information) Ms Lamb obtained British citizenship by descent at birth, she continues to be a British citizen until she successfully completes a renunciation through the Home Office.

A spokesman for Ms Lamb would not provide any further clarification beyond her initial public statement, when asked by Fact Check.

Where does the latest decision leave these six parliamentarians?

The court will have to decide whether all reasonable steps have been taken by the six parliamentarians to renounce their foreign citizenship.

In the cases of the Ms Keay, Mr Wilson, Senator Gallagher and Ms Sharkie, there was nothing further that they could do to renounce their British citizenship — all that was left was to wait for confirmation of renunciation from the UK Home Office.

Mr Feeney’s case will likely rest on the evidence he can provide of his purported October 2007 renunciations.

In relation to Ms Lamb, it may come down to whether “all reasonable steps” included efforts to obtain the supporting documentation.

Given that many other politicians have been able to provide such documents to the Home Office — and the High Court found in this year’s case that “reasonable efforts” are not enough — the court may want to see some unique reasons for Ms Lamb’s apparent failure to provide said documents.

What is the Parliament doing?

On November 13, 2017, the Senate agreed to create a citizenship register, with senators needing to provide information about their citizenship and background by December 1.

This information was to include a declaration about the place and date of birth of the senator, their parents and grandparents, and any proof of renunciation of foreign citizenship.

Senators providing false information would be in contempt of the Senate and “shall be dealt with by the Senate accordingly”.

similar disclosure regime was introduced to the House of Representatives on December 4, with responses due the following day.

The registers will be maintained for all future MPs.

However, the disclosure regime is not expected to protect existing MPs and Senators who failed to comply with section 44 of the constitution.

In these, and subsequent cases, the High Court will remain the final arbiter.

If the Parliament refuses to refer someone to the court, a member of the public can do so, and claim $200 a day for attending the hearing.

The Australian government dropped its push to deport Indigenous non-citizens, but many remain in limbo without basic rights

Article by Marian Faa, ABC News – 7 September 2022

The Australian government is under pressure to urgently resolve a legal grey area that is seeing some Indigenous people unable to work or access government services for years.

In late July, Attorney-General Mark Dreyfus dropped a legal case in which the previous government sought to challenge a High Court ruling that Indigenous non-citizens could not be deported.

The Love and Thoms judgement, handed down in 2020, applies to Aboriginal and Torres Strait Islander people who do not hold citizenship because they were born overseas.

It found powers in the Migration Act to deport people who have committed serious crimes do not apply to Indigenous non-citizens because they are not considered “aliens” in the constitution.

Indigenous rights advocates have welcomed the decision to drop the challenge, but said legislative reform is needed to give full effect to the landmark judgement.

Deputy director of the UNSW Indigenous Law Centre Dani Larkin said Indigenous non-citizens had been living with crippling uncertainty for years.

“I can only imagine the kind of trauma that would bring to those individuals’ lives – the state of limbo and not knowing what’s next,” Dr Larkin said.

Eighteen Indigenous non-citizens whose visas were cancelled prior to the High Court ruling have now been released from immigration detention.

But some have not had their visas reinstated.

Daniel Gibuma, a Torres Strait Islander man who was born in Papua New Guinea, said it had left him unable to work or access welfare support.

“It’s very hard to live life like this,” he said.

“It’s been going too long, and I want this to stop.”

‘I got broken’

Mr Gibuma is a native title holder from Boigu Island in the Torres Strait and has lived in Australia since he was six years old.

He was placed in immigration detention in 2018 after serving a prison sentence for common assault, but released in 2020 after the Love and Thoms judgement was handed down.

Although he can stay in Australia, without a visa or citizenship he has no way of earning income.

The 58-year-old has been relying on his children in Far North Queensland for financial support.

Mr Gibuma also can not apply for a driver’s license or travel overseas and return because he does not have the necessary identification documents.

“I feel like my government has turned against my people,” he said.

“I was once an Australian, and I did everything every Australian does, and that got took away from me and I got broken.”

Aki Charlie, also a Torres Strait Islander non-citizen, has been couch surfing in Far North Queensland since his release from immigration detention.

“I feel depressed over it,” he said.

“I’m not working, I’m not getting income and my family has got to support me, which I don’t like.”

A matter of urgency

A spokesperson for the Department of Home Affairs said the government was looking into the situation and what options were available to respond.

“The government is carefully considering the position of Aboriginal and Torres Strait Islander people who are not Australian citizens,” the spokesperson said.

Greens senator Lidia Thorpe said Indigenous non-citizens should be granted full citizenship rights as a matter of urgency.

“We’re talking about Aboriginal men not allowed to work because the government of the day haven’t done enough in providing these people their sovereign right,” she said.

“Labor have an opportunity to fix it quickly.

“Get all of these men the rights that they deserve, particularly to work and to pay taxes, and to be able to travel freely.”

She said the situation had prevented some Indigenous people from travelling to bury loved ones who passed away overseas.

Dr Larkin said legislative changes were needed to give full effect to the Love and Thoms decision.

“So that [Indigenous non-citizens] are able to access necessary services, to be able to properly feel included in this country and live with prosperity and liberty,” she said.

“To be able to not just exist within the Australian state, but actually thrive within it.”

She urged the government to consult with First Nations people about potential legislative and policy reforms.

Some Indigenous non-citizens are also seeking compensation from the government.

Mr Gibuma said he lost income and valuable possessions as a result of being held in immigration detention.

“I was put away and I lost half of my life in there,” he said.

Mr Gibuma hopes to find work, regain his independence and return to the life he knew on Boigu Island.

“[I want to] make my life straight with my people, my elders, and my clan, my tribe,” he said.

“So I can be with them and be happy and serve the community.”

Unintended consequence': how Australia stripped an Australian of citizenship

Article by Eamonn Duff, The Sydney Morning Herald – 25 June 2016

Teresa Mullan has lived in Australia for more than half a century. During that time, she has raised children here, worked for three governments, voted at 10 federal elections and travelled the world on an Australian passport.

But when she tried to renew that passport ahead of an overseas holiday next month, she was refused a replacement because she could not prove she was an Australian citizen.

Fairfax Media has found that, on the instruction of the Department of Immigration and Border Protection (DIBP), adoptees born overseas can no longer present their Australian birth certificate, issued as part of the adoption process, as lawful evidence of citizenship.

Neither the Department of Foreign Affairs and Trade nor the DIBP would provide reasons for the changes when asked by Fairfax Media last week.

But those amendments, now being applied by the Australian Passport Office, mean there are potentially thousands of inter-country adoptees who assume they are bona-fide citizens but are now not regarded as one, even though they have held passports.

Ms Mullan likened the situation to a bad comedy sketch that has left her feeling humiliated and demoralised.

“This is yet another example of our ill-conceived and inhumane immigration and border protection laws,” Ms Mullan said. “After 52 years, am I somehow now a threat to national security? I feel as though my country has stripped me of my nationality and identity. This experience just highlights the government’s disregard for the sanctity of citizenship.”

ANU College of Law professor Kim Rubenstein, who has published a book exposing the flaws of citizenship laws, confirms a range of scenarios have emerged involving people who are Australian in “all but law”.

“That is, their lives have been fully lived in Australia yet they have fallen foul of technical distinctions and have not been recognised as Australian citizens,” she said.

Ms Mullan was born in New Zealand in December 1963 and adopted in Australia several months later, in March 1964. As an adult, she has always struggled with the heartbreaking narrative surrounding those events.

She was part of the “white stolen generation”, so-called to distinguish it from the Indigenous stolen generations, although the associated suffering was shared. In the five decades before 1982, the newborn babies of young, unmarried women were forcibly removed for adoption.

Ms Mullan’s birth mother, from Queensland, had kept her pregnancy secret by staying with nuns in Auckland.

But when she and the father returned to Brisbane and sought assistance from the state government, it separated her from the baby and made her sign adoption forms under duress.

Ms Mullan has since learnt from numerous relatives of her late mother’s desperate attempts to retrieve her.

Of her current plight, she asked: “If I was born to two Australian citizens, removed from them by the Queensland government and adopted out to two other Australians citizens, how can I not be a citizen?”

In a letter last December, DFAT formally denied her a full validity replacement passport because she could not present proof of citizenship through a citizenship certificate.

When she sought answers from passport personnel and the office of Immigration and Border Protection minister Peter Dutton, officials would only divulge that she was an “unintended consequence” of law changes that had affected a number of adopted people.

After she applied for her citizenship certificate, the DIBP deemed her paperwork invalid, stating in a letter that citizenship needed to be “acquired” by “conferral”. She has since been advised to apply for the required evidence by paying $190 to attend an interview, sit a test, swear her allegiance to Australia and attend a ceremony, where she would receive her certificate.

In the past few days, New Zealand has accepted Ms Mullan’s application for a passport – and recognised her as a citizen – even though she only spent a week there after her birth. While she described her relief as immense, questions still surround her status in Australia when she returns.

A spokesman for Mr Dutton said the department understood it could be distressing for long-term residents of Australia to discover they were not citizens “when they believed this to be the case for many years”.


Morunga Migration Pty Ltd is committed to providing quality immigration assistance and advice to our audiences and broader migrant communities both in and outside of Australia.

The information contained within this website is to provide advice of a general nature only and is not to be taken as individual advice for your personal circumstances. Immigration information is subject to change at any time. Before proceeding with an application we recommend seeking professional and personalised advice about your circumstances.

We cannot accept responsibility for any errors or omissions as Australian immigration law and regulations change regularly. It is always best to contact us for advice before making any decisions. Alternatively, up to date information can be checked on the official Australian Government website, the Department of Home Affairs.

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