Past documents raise further questions over Frydenberg's citizenship case

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Documents have recently surfaced which cast some doubt over citizenship claims made by Josh Frydenberg's family, writes Trevor Poulton.

IN A FURTHER DEVELOPMENT in the Josh Frydenberg case, a second archive box stored by National Archives Australia has been located that contains relevant documents. The box is labelled under the name “Samuel Strauss” rather than the family’s Hungarian spelling of their name — “Strausz”. I have requested the Examiner to update their online search system to connect the two archive boxes.
Amongst the archived documents is a French Certificate of Identity for Travel (Titre D’Identite et De Voyage) issued to the family Strausz by the French Government on 29 March 1950 (see pages 35-43). The certificate was most likely accepted by the Immigration Boarding Officer in Sydney in 1950 in lieu of a “valid passport” for entering Australia. The travel certificate cannot be relied upon to prove or disprove that Frydenberg is a Hungarian citizen. However, the discovery of the actual certificate now brings to an end that distraction.    
The issue to be addressed by the High Court is not the question of having a “valid passport”, but Joshua Frydenberg’s Hungarian citizenship status at law. Frydenberg states in his 2019 AEC Qualification Declaration that his family lost their citizenship in 1948 and therefore he is not Hungarian by descent from his mother. So what does he believe happened in 1948 to change the citizenship status of his maternal grandparents and that of his mother?  

The petition currently focuses on the issue of a “valid passport” which is now answered anyway. The Justices of the High Court would no doubt be pleased if the Petitioner provided additional information in the petition itself to enable them to make a decision as to whether Frydenberg is ineligible to sit in the Parliament under Section 44 of the Constitution of Australia.   
In that regard, the Petitioner needs to directly raise the following two issues in the petition by way of an amended petition, that necessarily highlight the actual legal crux of the matter for the court:  

  1. The Respondent is yet to state how and in what circumstances his mother, Erica Frydenberg (née Strausz), was rendered a non-citizen of Hungary in 1948 under Hungarian Citizenship Law or a Hungarian Ministerial Decree, such that he can maintain that he does not hold Hungarian citizenship through his mother by descent; and
  2. The Respondent is yet to state how and in what circumstances his mother was rendered “stateless” under international citizenship law in 1948 such that he can maintain that he does not hold Hungarian citizenship through his mother by descent.  

Newly located documents have also produced two statutory declarations (see here, here and here) signed by Frydenberg’s maternal grandfather that now reveal the family in fact resided in Hungary until as late as September 1949. The documents also reveal the family spent ten days in Austria (Vienna) and then arrived in France in September 1949 where they remained until November 1950 before migrating to Australia. Mr Strausz has inserted the word “stateless” in each of the declarations he made, which have then been crossed out and replaced with the critical word “Hungarian”.
If Frydenberg cannot produce a Hungarian law or Ministerial decree, which proves that his family was deprived of their Hungarian citizenship, then he will need to satisfy the Justices of the High Court that his family was made “stateless” on the basis of international citizenship law.   

However, there was no Australian immigration statutes or international conventions addressing statelessness until the U.N. adopted the Convention Relating to the Status of Stateless Persons in 1954.  

Hence, the relevant immigration documents of 1950 consistently refer to the family’s nationality as Hungarian. “Nationality” and “citizenship” are normally equated by governments as having the same legal meaning.   
The 1954 Convention established the legal definition of a stateless person as:

‘A stateless person: is someone who is not recognised as a national by any state under the operation of its law.’

According to the Refugee Council of Australia, the Australian Government is yet to introduce a statutory statelessness status determination process for conferral of legal status on stateless persons.  
In such circumstance, Frydenberg would need to consider raising historical customary law (for instance, “exiled” or “asylum”) to somehow construct a “stateless” case to satisfy the High Court that his family were made stateless in 1948 as he has claimed. However, this may be difficult given that Hungary was a sovereign state in 1948 governed by a communist party that at the time would have outlawed anti-Semitism and racism and that, as it seems, the family gained entry into Australia typically as sponsored migrants.   
Curiously, Erica Frydenberg published a book in 2005 titled Morton Deutsch: A Life and Legacy of Mediation and Conflict Resolution that states in her introduction: 

‘I was a young academic who had been schooled in Australia, a land of privilege and opportunity to which my parents had emigrated during World War II from my birthplace of Hungary.’  

World War II ended in May 1945. The biographical note is therefore clearly not consistent with the 1950 Australian immigration documents and it would appear that Frydenberg’s mother has been confused about her early family history. Joshua Frydenberg may have relied on oral family history to ascertain his citizenship circumstances and hence his lack of clarity throughout the dual citizenship saga.  However, he has had an obligation under law to make proper enquiries regarding his citizenship status and to not rely on oral family history, if that is his defence.

Trevor Poulton is a lawyer, author of books 'The Holocaust Denier' and 'Brick Through The Window (Poems from the 1990s)', a champion for environmental causes, and has been a member of the Labor Party for 26 years.

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