16 October 2015
by Suzanne Carbone
How a man born in Australia lost his citizenship and fears deportation to Ireland
Immigration Minister Peter Dutton may hold Daniel Smyth's future in his hands.
A man born in Australia who has a criminal history fears being deported and separated from his children after losing his citizenship because of an obscure provision in the Australian Citizenship Act.
Daniel Smyth, 44, a separated father of two children, aged 11 and 13, is fighting to win back his citizenship from the Department of Immigration and Border Protection, headed by Minister Peter Dutton.
Mr Smyth said he lost his Australian passport 18 years ago when holidaying in Ireland and returned home with the Irish passport his father had obtained for him.
Daniel Smyth holds his birth certificate showing that he was born in Australia.
"Life goes on for another 17 years," Mr Smyth said. "I'm Australian as far as I'm concerned. I didn't know there was any problem." In his case, there was no luck being Irish.
A department spokesperson explained how an Australian could lose their citizenship. "Information provided by Mr Smyth indicates that he may have lost his Australian citizenship in 1992. Due to the situation that before 4 April 2002, the Australian Citizenship Act 1948 provided for the automatic loss of Australian citizenship in some circumstances where an Australian citizen acquired the citizenship of another country."
Mr Smyth is on a bridging visa and fears being deported or put in detention after receiving a "Notice of intention to consider cancelling a visa". The visa ceases on November 4.
Immigration lawyer David Manne.>>>
"I'm very anxious," Mr Smyth said. "It's giving my son a lot of grief that I won't be around."
After Fairfax Media contacted the department about Mr Smyth, a spokesperson said: "As the investigation of Mr Smyth's circumstances and immigration status may take some time to finalise, the department will cease any further action to cancel Mr Smyth's bridging E visa until his immigration status is resolved.
When asked if Mr Smyth faced deportation or detention, the department spokesperson did not respond.
Mr Smyth's identity crisis deepened in December 2014 when he wanted to travel to Thailand and applied for an Australian passport. He was told he needed a citizenship certificate and when applying for one, irregularities came to light.
In this highly complicated and unusual case, Mr Smyth was put on a bridging visa until his status was clarified. The document threatening to cancel his visa lists his country of birth as "Australia" and his nationality as "Ireland". His birth certificate shows that he was born in East Melbourne.
The document also mentions his criminal offences from 1988-2013 as "grounds for considering cancelling your bridging visa E" and implies he is not of "good character" to resume his citizenship.
Mr Smyth, who owns the tiling business Dan the Tiler, said he had turned his life around after being jailed twice for theft and burglary, and had beaten his heroin addiction five years ago. "I sorted my life out, starting about seven years ago. I got over my heroin addiction and started my business, which has all been going great. I receive no money from any government agency and employ people in my business."
A department spokesperson said: "Applicants who apply to resume Australian citizenship must meet the legislative provisions of the Australian Citizenship Act 2007, including the requirement that they are of good character".
Immigration lawyer David Manne, the executive director of the Refugee and Immigration Legal Centre, told Fairfax Media that Mr Smyth deserves a fair go before the law.
"As a matter of fundamental fairness and justice, he should be able to plead his case for remaining an Australian and not being ultimately expelled due to a legal technicality or mistake," Mr Manne said.
"The reality is that for well over a decade, due to major changes in the law, people have had the right to obtain dual nationality without the threat of being deported.
"If Mr Smyth calls Australia home, he shouldn't be vulnerable to being expelled or exiled from Australia forever due to a legal technicality or mistake."
Compounding Mr Smyth's case even further, he said he no longer has his Irish passport and was in no man's land.
"Seeing I do not have the old passport, I would need to reapply for Irish citizenship again. So, that tells me I may not still have the Irish citizenship anyway, which would make me stateless."