ALAN SARIMAN and MINISTER FOR IMMIGRATION AND CITIZENSHIP
[2012] AATA 387
•27 June 2012
[2012] AATA 387
Division GENERAL ADMINISTRATIVE DIVISION File Number(s)
2012/0282
Re
ALAN SARIMAN
APPLICANT
And
MINISTER FOR IMMIGRATION AND CITIZENSHIP
RESPONDENT
DECISION
Tribunal Dr P McDermott, RFD, Senior Member
Date 27 June 2012 Place Brisbane The Tribunal affirms the decision under review.
...................[Sgd].........................................
Dr P McDermott, RFD, Senior Member
CATCHWORDS
IMMIGRATION AND CITIZENSHIP – Citizenship – Application to resume citizenship – Applicant born in Territory of Papua – Papua and New Guinea independence – Papua New Guinea Constitution – Automatic citizenship of Papua New Guinea – Cease to be Australian citizen – No previous right to permanent Australian residency – Exceptions under Australian Citizenship Act 2007 (Cth) not applicable – Decision under review affirmed
LEGISLATION
Australian Citizenship Act 1948 (Cth) ss 5, 10, 11, 17, 18, 19, 20, 23
Australian Citizenship Act 2007 (Cth) ss 3, 21, 29, 30, 33, 36
Australian Citizenship (Transitional and Consequential) Act 2007 (Cth) s 42
Constitution of the Independent State of Papua New Guinea s 65
Migration Act 1958 (Cth)
Papua New Guinea Independence Act 1975 (Cth) ss 4, 6
Papua New Guinea Independence (Australian Citizenship) Regulations 1975 (Cth) reg 4Papua New Guinea Independence (Australian Citizenship of Young Persons) Regulations 1980 (Cth) reg 2
CASES
Minister for Immigration and Multicultural Affairs v Walsh (2002) 125 FCR 31
Re Minister for Immigration and Multicultural Affairs; ex Parte Ame (2005) 222 CLR 439
Re Gaigo and Minister for Immigration and Citizenship [2008] AATA 590
SECONDARY MATERIALS
J Goldring, (1978), The Constitution of Papua New Guinea: A Study in Legal Nationalism, The Lawbook Co. Ltd, p. 204.
REASONS FOR DECISION
Dr P McDermott, RFD, Senior Member
27 June 2012
INTRODUCTION
Mr Alan Sariman, who has previously held Australian citizenship, has made an application to become an Australian citizen again. On 17 January 2012, Mr Sariman was advised that his application was refused by a delegate of the Minister for Immigration and Citizenship. Mr Sariman now seeks a review of that decision by this Tribunal.
In considering this application I have been greatly assisted by the reasons for decision of a Deputy President of this Tribunal who has examined the relevant issues which arise in the case of a person in the position of Mr Sariman, including the significance of ss 4 and 6 of the Papua New Guinea Independence Act 1975 (Cth).[1]
[1] Re Gaigo and Minister for Immigration and Citizenship [2008] AATA 590 per Deputy President Dr B H McPherson, CBE.
BACKGROUND
Mr Sariman was born in 1969[2] in Port Moresby in the then Territory of Papua. Mr Sariman then became an Australian citizen by birth. This is because s 10(1) of the Australian Citizenship Act 1948 (Cth)[3] provided that a person born in Australia after the commencement of that Act became an Australian citizen by birth. The exceptions in s 10(2) of that Act have no application to Mr Sariman.
[2] To protect the privacy of Mr Sariman in these reasons I do not mention his actual date of birth.
[3] This Act was originally titled the Nationality and Citizenship Act 1948 (Cth).
It is not in issue that when Mr Sariman was born the Territory of Papua was then part of Australia. This is because s 5 of the Australian Citizenship Act 1948 (Cth) then provided that “‘Australia’ includes the Territories of the Commonwealth that are not trust territories”. Papua was not a trust territory.
EFFECT OF INDEPENDENCE
The Constitution of the Independent State of Papua New Guinea, in s 65(1), provides that a person born in the country before Independence Day (16 September 1975) who had two grandparents who were born in the country or an adjacent area gained automatic citizenship of the new State of Papua New Guinea. Mr Sariman has confirmed that he has at least two grandparents of Papuan origin.[4]
[4] Exhibit A, T-document 12, folio 89.
Section 65(1) of the Constitution of the Independent State of Papua New Guinea, is, by s 65(4) of that Constitution, expressed not to apply to someone who:
(a) has a right (whether revocable or not) to permanent residence in Australia or;
(b) is a naturalized Australian citizen or;
(c) is registered as an Australian citizen under Section 11 of the Australian Citizenship Act1948-1975 of Australia or;
(d) is a citizen of a country other than Australia.
I am satisfied that on Independence Day s 65(4) of the Constitution of the Independent State of Papua New Guinea did not apply to Mr Sariman. There is no evidence that Mr Sariman then had a right of permanent residence in Australia under the Migration Act 1958 (Cth). He was not then a naturalised Australian citizen or a person who was registered as an Australian citizen under s 11 of the Australian Citizenship Act1948-1975 (Cth). He was also then not a citizen of another country other than Australia. It is for these reasons that I consider that the application of s 65(1) of the Constitution of the Independent State of Papua New Guinea has not been excluded by the operation of s 65(4) of the Constitution of the Independent State of Papua New Guinea.
I find that Mr Sariman became a citizen of the Independent State of Papua New Guinea on Independence Day by the operation of s 65(1) of the Constitution of the Independent State of Papua New Guinea. He satisfies the requirements for the operation of s 65(1) by being born in the Independent State of Papua New Guinea before Independence Day and by the fact that he has two grandparents who were born in that country.
CESSATION OF AUSTRALIAN CITIZENSHIP
While Mr Sariman became a citizen of the Independent State of Papua New Guinea on Independence Day, on that day he also ceased by operation of law to be an Australian citizen. This cessation of Australian citizenship occurred by virtue of the operation of reg 4 of the Papua New Guinea Independence (Australian Citizenship) Regulations 1975 (Cth). This regulation applies to Mr Sariman because immediately before Independence Day he was an Australian citizen, but, on that day, he became a citizen of the Independent State of Papua New Guinea by virtue of the provisions of the Constitution of the Independent State of Papua New Guinea. The regulation provides that such a person ceases, on Independence Day, to be an Australian citizen. The validity of this regulation was upheld by the High Court of Australia in Re Minister for Immigration and Multicultural and Indigenous Affairs; ex Parte Ame.[5] In that case, Kirby J also rejected a submission that the regulation was arbitrary as it operated only in relation to a person who had already acquired citizenship of the new Independent State and was not rendered Stateless.[6]
[5] (2005) 222 CLR 439.
[6] (2005) 222 CLR 439 at 485. See also Re Gaigo and Minister for Immigration and Citizenship [2008] AATA 590 at [13] per Deputy President Dr B H McPherson, CBE.
RIGHT OF PERMANENT RESIDENCE
Prior to Independence Day, Mr Sariman would have required a permanent or temporary entry permit under the Migration Act 1958 (Cth) to enter the mainland of Australia.[7] There is no evidence that Mr Sariman had a right of permanent residence for the purposes of s 65(4) of the Constitution of the Independent State of Papua New Guinea.
[7] Minister for Immigration and Multicultural Affairs v Walsh (2002) 125 FCR 31 at 35-36, [15]-[21], cited in Re Minister for Immigration and Multicultural and Indigenous Affairs, ex Parte Ame (2005) 222 CLR 439 at 445.
Mr Sariman has placed reliance on policy documents which provided that prior to Independence Day the right of automatic residence in mainland Australia was automatic for children born in Papua of non-indigenous descent.[8] However, I am bound by a decision of the Full Court of the Federal Court of Australia that such policy documents are merely a statement of usual administrative practice and do not have the force of law. [9]
[8] Exhibit A, T-document 17, folio 126.
[9] Minister for Immigration and Multicultural Affairs and Indigenous Affairs v Walsh (2002) 125 FCR 31 at 37, [24].
I should also mention that in Re Minister for Immigration and Multicultural and Indigenous Affairs; ex Parte Ame,[10] the High Court of Australia rejected a submission that as a matter of constitutional principle an Australian citizen had a right of permanent residence in Australia.
[10] (2005) 222 CLR 439.
PAPUA NEW GUINEA INDEPENDENCE (AUSTRALIAN CITIZENSHIP OF YOUNG PERSONS) REGULATIONS 1980 (CTH)
On Independence Day, Mr Sariman was under the age of 19 years. This raises for consideration the application of reg 2 of the Papua New Guinea Independence (Australian Citizenship of Young Persons) Regulations 1980 (Cth), which was strongly relied upon by Mr Sariman. In Minister for Immigration and Multicultural Affairs and Indigenous Affairs v Walsh[11] it was held that reg 2 only has application to a young person who, on Independence Day, had a right of permanent residence in Australia.
[11] (2002) 125 FCR 31 at 39, [35].
Prior to Independence Day, Mr Sariman would have required a permanent or temporary entry permit under the Migration Act 1958 (Cth) to enter the mainland of Australia.[12] I have already mentioned that there is no evidence that Mr Sariman had such a right of residence in Australia.
[12] Minister for Immigration and Multicultural Affairs and Indigenous Affairs v Walsh (2002) 125 FCR 31 at 35-36, [15]-[21], cited in Re Minister for Immigration and Multicultural and Indigenous Affairs, ex Parte Ame (2005) 222 CLR 439 at 445.
As I have already mentioned above, the High Court of Australia has rejected the proposition that an Australian citizen has a right to permanent residency as a matter of constitutional principle.[13] This has the consequence that on Independence Day, when Mr Sariman last held Australian citizenship, that citizenship did not give him the right to enter the Australian mainland without a permit.[14]
[13] Re Minister for Immigration and Multicultural Affairs v Walsh; ex Parte Ame (2005) 222 CLR 439.
[14] J Goldring, (1978), The Constitution of Papua New Guinea: A Study in Legal Nationalism, The Lawbook Co. Ltd, p. 204.
As Mr Sariman did not on Independence Day have a right of permanent residence in Australia, reg 2 of the Papua New Guinea Independence (Australian Citizenship of Young Persons) Regulations 1980 (Cth) has no application to his case. Even if that regulation did apply to Mr Sariman (which in my view is certainly not the case) there is an issue as to whether the respondent would have power to approve a person becoming an Australian citizen again having regard to s 30(1A) of the Australian Citizenship Act 2007 (Cth), which provides that the Minister must not approve the person becoming an Australian citizen again unless that person is eligible to become an Australian citizen again under subs 29(2) or (3) of that Act. In my view there is no evidence that Mr Sariman is eligible to become an Australian citizen again under either subs 29(2) or (3) of that Act.
AUSTRALIAN CITIZENSHIP ACT 2007 (CTH)
Australian legislation has introduced the concept of Australian citizenship and prescribes the method of its application and loss.[15] It is by the operation of the Australian Citizenship Act 2007 (Cth) (“the 2007 Citizenship Act”) that the application of Mr Sariman falls to be determined.
[15] Minister for Immigration and Multicultural Affairs and Indigenous Affairs v Walsh (2002) 125 FCR 31 at 35-36, [1].
On 18 August 2011, Mr Sariman made an application to resume his Australian citizenship. This application was made under s 29 of the 2007 Citizenship Act.
Having regard to the operation of s 30(1A) of the 2007 Citizenship Act, in order for Mr Sariman to succeed in an application under s 29 of the 2007 Citizenship Act, he must have lost his citizenship under ss 29(2) or 29(3) of the 2007 Citizenship Act.
There is no evidence that Mr Sariman lost his citizenship under s 29(2) of the 2007 Citizenship Act. This provision concerns the loss of citizenship under either ss 33 or 36 of the 2007 Citizenship Act. The applicant did not lose his citizenship under the 2007 Citizenship Act. He lost his citizenship on Independence Day some decades before the passage of the 2007 Citizenship Act.
I am satisfied that Mr Sariman does not come within the ambit of s 29(3)(a) of the 2007 Citizenship Act. This provision concerns the loss of citizenship under various provisions (ss 17, 18, 20 and 23) of the Australian Citizenship Act 1948 (Cth) (“the 1948 Citizenship Act”) which, in my view, have no application to Mr Sariman. The 1948 Citizenship Act is referred to in s 29(3) of the 2007 Citizenship Act as the “old Act”.[16]
[16] See definition of “old Act” in section 3 of the 2007 Citizenship Act.
I give my reasons why Mr Sariman did not lose his Australian citizenship under either ss 17, 18, 20 or 23 of the 1948 Citizenship Act. In my view he lost his Australian citizenship by the operation of reg 4 of the Papua New Guinea Independence (Australian Citizenship) Regulations 1975 (Cth). At that time, s 17 of the 1948 Citizenship Act only had application to the loss of citizenship by an Australian citizen of “full age and capacity”: this provision could have no application to Mr Sariman who was then still only a child. Section 18 of the 1948 Citizenship Act also, in my view, has no application to this case as that provision refers to the loss of citizenship by a person who, after attaining the age of 18 years, made a declaration renouncing his or her Australian citizenship: Mr Sariman, who lost his Australian citizenship before he attained the age of 18 years, made no such declaration. Section 20 of the 1948 Citizenship Act could have no application to Mr Sariman as this provision was repealed in 1958[17] long before he was born. Section 23 of the 1948 Citizenship Act also can have no application to Mr Sariman as the provision only applies where the responsible parent of a child ceases to be a citizen under ss 17, 18 or 19 of that Act: I am not satisfied that this is the case here.
[17] Nationality and Citizenship Act 1958 (Cth), s 6.
Mr Sariman, in his latest application to resume his Australian citizenship, has asserted that his parents had made a renunciation of Australian citizenship and a declaration of loyalty to Papua New Guinea.[18] For a number of reasons I am not satisfied that this was the case. No evidence of any such renunciation or declaration was produced in evidence. Such an assertion is inconsistent with the statement in his previous application for resumption of Australian citizenship that his mother had obtained citizenship of Papua New Guinea by “automatic grant/by operation of law”.[19] The procedure of making a renunciation of citizenship and a Declaration of Loyalty was prescribed by s 65(2) of the Constitution of the Independent State of Papua New Guinea to apply to a case where a person “was born outside the country before Independence Day”. It is not plausible that his parents had made such a renunciation and declaration as they were both born in Papua.
[18] Exhibit A, T-document 8, folio 64.
[19] Exhibit A, T-document 8, folio 56.
As Mr Sariman is unable to satisfy either subs 29(2) or (3) of the 2007 Citizenship Act, his application cannot, in my view, succeed.
For the sake of completeness I should refer to s 21(7) of the 2007 Citizenship Act which enables certain persons who were born in Papua before Independence Day to become Australian citizens. However, to qualify under that provision an applicant must have a parent who is born in Australia (within the meaning of the 2007 Citizenship Act at the time the person made the application). Mr Sariman did not have a parent who was born in Australia as defined by s 3 of the 2007 Citizenship Act as Papua had ceased to be a Territory some decades before the passage of the 2007 Citizenship Act.
CONCLUSION
I am of the opinion that Mr Sariman does not qualify for resumption of Australian citizenship under the Australian Citizenship Act 2007 (Cth).
DECISION
I affirm the decision under review.
I certify that the preceding 27 (twenty-seven) paragraphs are a true copy of the reasons for the decision herein of Dr P McDermott, RFD, Senior Member. ................[Sgd]..................................
Associate
Dated 27 June 2012
Date(s) of hearing 6 June 2012 Solicitors for the Applicant Maxwell Tabua Solicitors for the Respondent Masothy Yin
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