Last updated 1 September 2016
Renunciation of citizenship
Renunciation of Australian citizenship is possible in limited circumstances. An Australian citizen who is 18 years or older and is a national or citizen of a foreign country may make an application to the Minister for Immigration and Border Protection (the minister) renouncing Australian citizenship. At the time the application is approved by the minister, the person ceases to be an Australian citizen (ss 33(1), 33(8) Australian Citizenship Act 2007 (Cth) (Australian Citizenship Act)).
If the person would become stateless upon renunciation, the minister must not grant approval. If the person is a citizen of a country with whom Australia is at war, the minister may not grant approval (ss 33(4)–33(7) Australian Citizenship Act).
An Australian citizen who was born or is ordinarily resident in a foreign country, and cannot become a national or citizen of that country while remaining an Australian citizen, may also renounce citizenship (s 33(3) Australian Citizenship Act). The minister must not register a declaration renouncing citizenship if it is considered not to be in the interest of Australia (s 33(6) Australian Citizenship Act).
Loss of citizenship by revocation
The minister has power to revoke Australian citizenship of any person who received such citizenship by application and conferral and who, under s 34 of the Australian Citizenship Act, has:
- been convicted of having made a false statement or concealed a material circumstance in connection with their application for citizenship
- obtained the approval to become an Australian citizen as a result of migration-related fraud
- received approval connected with the migration-related fraud of a third party,
and the minister is satisfied that it is against the public interest for that person to continue to be an Australian citizen. The above also extends to fraud connected with the person’s entry into Australia or grant of visa where that fraud was material to the person becoming a permanent resident.
Where citizenship is obtained through conferral, the minister may also exercise this power of revocation against a person convicted of any offence and sentenced to at least 12 months imprisonment, provided the offence was committed before the grant of Australian citizenship. The Australian Citizenship Act also provides that where all responsible parents or guardians of a child (i.e. someone aged under 18 years) cease to be Australian citizens, other than by their death, and the child has another citizenship, then the minister may, in writing, revoke the child’s Australian citizenship (s 36 Australian Citizenship Act).
Renunciation by conduct
Section 33AA of the Australian Citizenship Act provides that a dual citizen aged 14 or older renounces their Australian citizenship if the person acts inconsistently with their allegiance to Australia by engaging in a range of conduct associated with terrorist offences specified in the Australian Citizenship Act.
The only review options under this provision is judicial review pursuant to s 75 of the Commonwealth of Australia Constitution Act 1900 (Imp) or s 39B of the Judiciary Act 1903 (Cth) (Judiciary Act).
Automatic cessation of citizenship
Australian citizens can now swear allegiance to another country and thereby acquire another citizenship by doing a formal act or thing and not lose their Australian citizenship. However, an Australian dual national who serves in the armed forces of a country at war with Australia, ceases thereby to be an Australian citizen. Similarly, an Australian citizen who fights for, or in the service of, a declared terrorist organisation outside of Australia will also cease to be an Australian citizen (s 35 Australian Citizenship Act).
Resumption of citizenship
In some circumstances, a former citizen may resume citizenship that has been lost (ss 29–32 Australian Citizenship Act).
Citizenship appeal rights
An applicant has a right under s 52 of the Australian Citizenship Act to have the Commonwealth Administrative Appeals Tribunal (AAT) review the minister’s decision in a range of citizenship decisions, including where the minister:
- refuses an application for citizenship
- refuses to approve the renunciation of Australian citizenship
- cancels an approval prior to the applicant taking the pledge
- revokes a previous grant of citizenship.
Other decisions are only appealable to the High Court in its original jurisdiction or via s 39B of the Judiciary Act.
Cancellation on character grounds
The power to cancel a visa on character grounds is found in s 501 of the Migration Act 1958 (Cth) (Migration Act). Section 501 gives a decision maker the power to cancel a person’s Australian visa (or to refuse to grant a visa) where that person does not pass the character test. The decision maker can be either the Minister for Immigration and Border Protection or a Department of Immigration Border Protection officer.
Under s 501A of the Migration Act, the minister has the power to set aside a decision of a delegate or a tribunal not to refuse or cancel a visa. If the minister exercises the power, then the visa holder will be given prior notice. However, if the minister is satisfied it is in the public interest to set aside the decision without notice, then the rules of natural justice and the code of procedure set out in sub-div AB div 3 pt 2 (Migration Act) do not apply.
A person does not pass the character test if they:
- have a substantial criminal record
- have escaped immigration detention or committed an offence while in immigration detention
- have an association with an individual, group or organisation that is suspected of being involved in criminal conduct
- are not of good character having regard to past, criminal and general conduct
- are at significant risk of engaging in future, unacceptable conduct (s 501(6) Migration Act).
The Immigration Advice and Rights Centre publishes useful information on character cancellation.