According to section 10 (2) Australian Citizenship Act 1948 (Cth), one is a citizen of Australia by birth if:

a)    One parent was a citizen or a permanent resident at the time of birth; or

b)    If one is ordinarily resident in Australia for ten years since the date of birth.

Under section 17, one loses citizenship on the acquisition of another nationality, however, the test whether one actually will lose his citizenship on the acquisition of another nationality involves the consideration of the sole and dominant purpose of the applicant for doing any act or thing the effect of which is to acquire the nationality or citizenship of a foreign country.

In Gugerli’s case, one is not subject to section 17 if applying for citizen rights by descent, because the sole and dominant purpose of the application is not to renounce one’s Australian citizenship for the sake of another, but merely to exercise one’s birthright.  

Department of Immigration v Gugerli (1992) 36 FCR 68

Gugerli v Department of Immigration (1991) 13 AAA 40

(Cons Langley v Repatriation Commission (1993) 115 ALR 51)
 

FACTS

Applicant’s mother was a Swiss citizen. The Applicant applied for Swiss citizenship since she was entitled to it according to Swiss law due to the fact of her parental descent.  

HELD

The applicant had not done anything other than apply successfully for recognition of her birthright pursuant to Swiss law. Merely registering one’s entitlement to foreign citizenship will not lead to loss of Australian citizenship. The less complicated the application process, the less risk there is of losing one’s Australian passport.

This decision is helpful to people who can acquire nationality via the birthplace of their parents.

See also:  Sykes v Cleary & Ors (1993) 67 ALJR 59:

Majority - Mason, Toohey, McHugh, & Brennan JJ, Dawson J agreed: In order to lose Australian citizenship a person must take positive and pro-active steps to break the perceived allegiance, obedience, and duty he owes to a foreign power. Renouncing a foreign citizenship & swearing allegiance to Australia as part of the naturalisation process, is not enough to satisfy the legal requirement for renunciation of a dual citizenship. All reasonable steps such a making a formal application to the foreign nation or minister must be taken.

Minority - Deane J, Gaudron J agreed: a person does all that was reasonable to do to give up dual citizenship by naturalisation. The fact that a foreign nation considers an Australian citizen a citizen of that foreign nation is irrelevant.  

Referred –  Langer v Cth (1996) 70 ALJR 176

Followed –  Free v Kelly [No 1] (1996) 138 ALR 646

Applied –  Free v Kelly [No 2] (1996) 70 ALJR 809
 

CONCLUSION:

If a non-citizen acquires Australian citizenship through the normal grant process and the laws of the person’s previous country do not remove the person’s citizenship of that country, then that person has dual citizenship.

When a person is born in Australia to a parent who is (or [sometimes] was) a citizen of another country, the person acquires Australian citizenship by birth as well as the parent’s other citizenship by descent. Where citizenship by descent is acquired or activated by registration, the registration does not fall within s17 if within Gugerli’s principles.

According to the Italian Consulate, one can only have Italian dual residency if one parent had Italian citizenship when the person was born. It does not matter that the parent was subsequently naturalised as an Australian citizen. Therefore, our client is entitled to dual citizenship since his parents where Italian citizens at the date of his birth. Further, he does not lose the right to citizenship on the naturalisation of either one or both of his parents.

In order to get an Italian passport, the Italian Consulate requires the person to apply in person to the Italian Consulate. Third parties cannot make applications for the person.

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