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Are you a dual citizen? Your Australian citizenship is a not-so-inalienable right.
English
By
Heba Kassoua, Davide Schiappapietra

17 Aug 2018 - 12:23 PM  UPDATED 20 Aug 2018 - 10:09 PM

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 Constitution, 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.

Refusal

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.

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