Alarcos and Minister for Immigration, Citizenship and Multicultural Affairs (Citizenship) - [2023] AATA 857

Alarcos and Minister for Immigration, Citizenship and Multicultural Affairs (Citizenship) [2023] AATA 857 (20 April 2023)
Division:GENERAL DIVISION
File Number(s):2021/6775
Re:Antoinette Alarcos
APPLICANT

AndMinister for Immigration, Citizenship and Multicultural Affairs
RESPONDENT

DECISION
Tribunal:Deputy President J Sosso
Date:20 April 2023
Place:Brisbane

The decision under review is affirmed.
.................................[SGD].................................
Deputy President J Sosso

CATCHWORDS
CITIZENSHIP – claim for citizenship by descent – constitutional history of Papua New Guinea – whether any of the exceptions in s 65 of the Papua New Guinea Constitution 1975 apply – whether Applicant’s great grandfather obtained and retained Filipino citizenship – decision under review affirmed
LEGISLATION
Australian Citizenship Act 2007 (Cth)
British Settlements Act 1887 (Imp)
Commonwealth Act No. 63 (PH)
Commonwealth of Australia Constitution Act 1901 (Cth)
Constitution of Papua New Guinea 1975 (PNG)
Constitution of the Philippines 1935 (PH)
Constitution of the Philippines 1943 (PH)
Constitution of the Philippines 1973 (PH)
Migration Act 1958 (Cth)
Nationality and Citizenship Act 1948 (Cth)
New Guinea Act 1920 (Cth)
Papua Act 1905 (Cth)
Papua New Guinea Independence Act 1975 (Cth)
Papua New Guinea Independence (Australian Citizenship) Regulations 1975 (Cth)
Papua-New Guinea Provisional Administration Act 1945 (Cth)
Philippine Autonomy Act 1916 (US)
Philippine Independence Act 1934 (US)
Philippine Organic Act 1902 (US)
CASES
Benito Muñoz v The Collector of Customs G.R. No L-7256, 23 November 1911
FABILA AND MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS [2022] AATA 1368
MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS AND INDIGENOUS AFFAIRS V WALSH [2002] FCAFC 35
RE CANAVAN; RE LUDLAM; RE WATERS; RE ROBERTS [NO 2]; RE JOYCE; RE NASH; RE XENOPHON [2017] HCA 45
Re MIMIA; Ex Parte Ame (2005) 222 CLR 439; [2005] HCA 36
SECONDARY MATERIALS
Alfredo Hernandez, ‘The ‘lost’ Filipino descendants’ (Undated)
REASONS FOR DECISION
Deputy President J Sosso
20 April 2023
INTRODUCTION

Ms Antoinette Alarcos (the Applicant) seeks review of a decision of a Delegate of the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (the Minister) of 20 August 2021 to refuse to grant the Applicant citizenship by descent pursuant to s 17(1) of the Australian Citizenship Act 2007 (Cth) (the Act) – Exhibit 1 T2 pp. 12 - 27.
Subsection 16(2)(a) of the Act provides that a person born outside of Australia on or after 26 January 1949 is eligible to become an Australian citizen if “a parent of the person was an Australian citizen at the time of the birth…"
The Applicant was born in December 1982 in Port Moresby, National Capital District, in Papua New Guinea – Exhibit 1 T4 p. 215. The Applicant’s Certificate of Birth Entry issued on 30 November 1998 lists her mother’s maiden name as Anita Faustina Fabila (Anita) and her father’s name as Alfredo Alarcos (Alfredo).
On 18 September 2020, the Applicant applied for Australian citizenship by descent – Exhibit 1 T4 pp. 195 - 239.
The Applicant enclosed a number of documents with her application. Included amongst those documents is a copy of her Papua New Guinea Passport which was issued on

27 April 2018 and expires on 27 April 2023 – Exhibit 1 T4 p. 213.
The Applicant also enclosed a copy of the Papua New Guinea Passport of Anita which was issued on 10 March 2014 and expired on 10 March 2019 – Exhibit 1 T4 p. 230.
The Applicant claims that her mother, Anita, was born in July 1959 in Daru, Western District, the then Territory of Papua. Accordingly, the Applicant claims that Anita acquired Australian citizenship pursuant to s 10 of the Nationality and Citizenship Act 1948 (Cth) (“the 1948 Act”) – Exhibit 1 T4 pp. 225 - 226.
The Delegate of the Minister did not accept that Anita was an Australian citizen when the Applicant was born. The following reasons were given – Exhibit 1 T2 p. 26:
“There is no evidence in Departmental records that since 16 September 1975 when Anita Faustina ALARCOS ceased to be an Australian citizen, she has been approved to become a citizen again either under the 1948 Act or the 2007 Act.
Therefore, I have found that your mother, Anita Faustina ALARCOS, was not an Australian citizen under the Australian Citizenship Act 1948 (the 1948 Act) or the 2007 Act at the time of your birth.
You have declared that your father is Alfredo Cambaliza ALARCOS, born on

4 March 1946 in Pila, Laguna, Philippines and a citizen of Papua New Guinea. You have not made a claim that Alfredo Cambaliza ALARCOS was an Australian citizen at the time of your birth and there is no Departmental evidence to suggest that he has ever been an Australian citizen.
Based on the findings above, I find that you did not have a parent who was an Australian citizen at the time of your birth on… December 1982, and therefore you do not satisfy section 16(2) of the Act.”
The Applicant has not claimed that Alfredo was an Australian citizen at the time of her birth, and, as such, the focus of the Tribunal’s attention is the citizenship status of Anita when the Applicant was born.
One important issue which is discussed at length below is whether Anita was, at birth, a citizen of the Philippines.
In her Application for Australian citizenship by descent (Form 118), the Applicant, at Item 21, claimed that Anita was an Australian citizen at the time of her birth, and that she acquired that status by birth having been born in Papua prior to Independence. In addition, the Applicant, in response to the question: “Does this parent hold citizenship of any countries other than Australia…”, answered in the negative – Exhibit 1 T4 p. 197.
This answer was subsequently refuted by the Applicant’s representative, Ms Morea, in a document entitled “Statement of Findings on Material Questions of Fact” which is dated

23 July 2021 – Exhibit 1 T9 pp. 269 - 273.
Ms Morea submitted that Anita was legally recognised as a citizen of the Philippines by descent through her father, Ildephonse, pursuant to Article VI of the

1943 Constitution of the Philippines. She then made the following submissions – Exhibit 1 T9 pp. 270 - 271:
“The applicant’s great grandfather was Marcello Fabila who was born in Panay Island, Antique Province in country of Philippines and was a citizen of the Philippines. The applicant’s grandfather was Mr Ildephonse Fabila, the child and descendant of Mr Marcello Fabila.
Under Article VI – Citizenship Section 1(1) of the Constitution of the Philippines, the applicant’s grandfather, Mr Ildephonse Fabila was born on … May 1927. Therefore, he acquired Philippine’s citizenship and was recognised as a Philippines citizen at the time of the adoption of the 1943 Constitution of the Philippines.
In addition to the 1943 Constitution of the Philippines Article VI – Citizenship

Section 1(1), the 1973 Constitution of the Philippines Article III section 1(2) supports the claim for Philippine’s citizenship for the applicant’s mother Mrs Anita Faustina Alarcos (nee Fabila).
…
The applicants mother Mrs Anita Faustina Alarcos (nee Fabila) was born on…July 1959. Therefore, by law she acquired Philippine’s citizenship by descent through her father Mr Ildephonse Fabila under the 1973 Constitution of the Philippines. In light of the above, the applicants mother acquired her Philippines citizenship too as she was a descendant of her father Mr Ildephonse Fabila and her grandfather Mr Marcello Fabila.
Based on the above legislation, the applicants mother Mrs Anita Faustina ALARCOS retained her Australian citizenship by law. Therefore, she also holds the citizenship of another country which is the Philippines other than Australia.”
The Delegate referred to Ms Morea’s submission, and noted that it had not been substantiated by evidence issued from the Philippines Government or any other third party documentation – Exhibit 1 T2 p. 24. Further, the Delegate referred to a Statutory Declaration deposed by Anita on 2 October 2017. Paragraph five of the document states as follows – Exhibit 1 T4 p. 229:
“I am eligible for Philippines Citizenship by Marriage but have never obtained this Citizenship and have never made an Application for Philippines Citizenship.”
The Delegate then made the following observations – Exhibit 1 T2 p. 24:
“Mrs ALARCOS’s understanding of her right to obtain citizenship of the Philippines differs from the claims made in Mrs MOREA’s treatise. As it is not uncommon for people to misinterpret the citizenship laws of other countries, Departmental procedure is for the applicant to request formal documentation from the relevant authorities confirming the date and method of the person’s acquisition of the claimed citizenship, such as a citizenship certificate, registration document, or other documented confirmation from the relevant government. No such evidence issued by the Government of the Philippines has been supplied with this application.”
The Delegate also was not convinced by Anita’s assertion in her Statutory Declaration that she had never obtained Papua New Guinea citizenship. Reference was made to the copy of Anita’s Papua New Guinea Passport and the fact that she had visited Australia using a Papua New Guinea Passport – Exhibit 1 T2 p. 24.
In the absence of any official evidence that Anita was a citizen of a country other than Australia on Papua New Guinea Independence Day, the Delegate was not satisfied that Anita satisfied s 65(4)(d) of the Constitution of Papua New Guinea 1975 (“Papua New Guinea Constitution”).
The issue of Filipino citizenship is dealt with at greater length below.
This matter has a very similar factual matrix to that in Fabila and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] AATA 1368 (“Fabila”). The Applicant in Fabila (Edwina Fabila) is the first cousin of the Applicant as Ms Fabila’s father (Emmanuel Fabila) is a brother of Anita – Exhibit 1 T2 p. 21.
In Fabila I set out the relevant legislative and constitutional background to the matter. The same law applies to this matter. I adopt that analysis, and set it out below.
Legal and constitutional developments prior to Papua New Guinea independence
In 1883 the Colony of Queensland annexed the South-Eastern quarter of the island of New Guinea. This unilateral annexation was not initially recognised by the Imperial Government, but in 1884 the Imperial Government declared a protectorate over this area, then known as British New Guinea. In 1888 British New Guinea was placed under the administration of the Colony of Queensland by the British Settlements Act 1887 (Imp).
Subsequent to Federation, Letters Patent were issued for the purposes of s 122 of the Commonwealth Constitution. Section 122 provides as follows:
“The Parliament may make laws for the government of any territory surrendered by any State and accepted by the Commonwealth, or of any territory placed by the Queen under the authority of and accepted by the Commonwealth, or otherwise acquired by the Commonwealth, and may allow the representation of such territory in either House of the Parliament to extent and on the terms which it thinks fit.”
It will be seen that s 122 prescribes two methods by which the Commonwealth of Australia may acquire territory. The second method is by a territory being placed by the Monarch under authority of the Commonwealth, and subsequently being accepted by the Commonwealth.
On 16 March 1908, pursuant to the Papua Act 1905 (Cth), Papua became an Australian territory. It was administered under this Act until the Japanese invasion of the island of New Guinea in 1942, and after the Second World War, civil administration was restored under the Papua-New Guinea Provisional Administration Act 1945 (Cth).
The North-Eastern quarter of the island of New Guinea together with outlying islands including New Britain, New Ireland, Manus, Buka and Bouganville were initially German colonies. In September 1914 the German colonies came under the control of Australia, and remained so until 1920 when the League of Nations conferred upon Australia a Mandate for its governance. The Commonwealth Parliament enacted the New Guinea Act 1920 (Cth) which formally accepted the Mandate. This legislation commenced on 9 May 1921.
Accordingly, the territories of Papua and New Guinea were administered under different underpinning constitutional regimes.
Australian citizenship was first given statutory form by means of the 1948 Act. Prior to this statute, persons residing in Australia were classified as either British subjects permanently residing in Australia, British subjects temporarily in Australia and those who were not British subjects and “aliens”.
The 1948 Act (whose title was subsequently changed in 1973 to the

Australian Citizenship Act 1948
) initially ensured that Australian citizens remained British subjects. The primacy of Australian citizenship was only recognised in 1969 and it was not until 1987 that Australians are simply citizens of Australia. The concept of British subject being finally abandoned.
Section 5 of the 1948 Act defined Australia to include Norfolk Island and the Territory of Papua. Persons born in Papua after 26 January 1949 acquired the status of Australian citizenship by birth and those born in Papua prior to 26 January 1949 automatically became Australian citizens from that date.
Despite this, the conferral of Australian citizenship on persons born in Papua was subject to restrictions contained in the Migration Act 1958 (Cth). Under the Migration Act 1958 a Papuan required an entry permit to enter or reside in any of the Australian States or internal Territories. A Papuan did not have an automatic right of entry or residence in mainland Australia.
Papua New Guinea independence
As a result of the Papua New Guinea Independence Act 1975 (Cth), Papua New Guinea became an independent sovereign state on 16 September 1975 (Independence Day). The Papua New Guinea Constitution came into effect on Independence Day.
Part IV of the Papua New Guinea Constitution deals with citizenship. Outlined below are the relevant provisions for this matter:
“PART IV.—CITIZENSHIP.

Division 1.—Introductory.
64. Dual citizenship.
(1) Notwithstanding the succeeding provisions of this Part but subject to Subsection (2), no person who has a real foreign citizenship may be or become a citizen, and the provisions of this Part shall be read subject to that prohibition.
(2) Subsection (1) does not apply to a person who has not yet reached the age of 19 years, provided that, before he reaches that age and in such manner as is prescribed by or under an Act of the Parliament, he renounces his other citizenship and makes the Declaration of Loyalty.
(3) A person who has a real foreign citizenship and fails to comply with Subsection (2) ceases to be a citizen of Papua New Guinea when he reaches the age of 19 years.
(4) For the purposes of this section, a person who—
(a) was, immediately before Independence Day, an Australian citizen or an Australian Protected Person by virtue of—
(i)birth in the former Territory of Papua; or
(ii)birth in the former Territory of New Guinea and registration under Section 11 of the Australian Citizenship Act 1948-1975 of Australia; and
(b) was never granted a right (whether revocable or not) to permanent residence in Australia,
has no real foreign citizenship.

Division 2.—Acquisition of Citizenship.
65. Automatic citizenship on Independence Day.
(1) A person born in the country before Independence Day who has two grand-parents who were born in the country or an adjacent area is a citizen.
(2) A person born outside the country before Independence Day who has two grand-parents born in the country is a citizen as from Independence Day if—
(a) within one year after Independence Day or such longer period as the Minister responsible for citizenship matters allows in a particular case, application is made by him or on his behalf for registration as a citizen; and
(b) he renounces any other citizenship and makes the Declaration of Loyalty—
(i)if he has not reached the age of 19 years—in accordance with Section 64(2) (dual citizenship); or
(ii)if he has reached the age of 19 years—at or before the time when the application is made.
(3) In Subsection (1), "adjacent area" means an area that immediately before Independence Day constituted—
(a) the Solomon Islands; or
(b) the Province of the Republic of Indonesia known as Irian Jaya; or
(c) the islands in Torres Straits annexed to the then Colony of Queensland under Letters Patent of the United Kingdom of Great Britain and Ireland bearing date the 10th day of October in the forty-second year of the reign of Her Majesty Queen Victoria (that is, 1878),
not forming on Independence Day part of the area of Papua New Guinea.
(4) Subsections (1) and (2) do not apply to a person 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 Act 1948-1975 of Australia; or
(d) is a citizen of a country other than Australia,
unless that person renounces his right to residence in Australia or his status as a citizen of Australia or of another country in accordance with Subsection (5).
(5) A person to whom Subsection (4) applies may, within the period of two months after Independence Day and in such manner as may be prescribed by or under an Act of the Parliament, renounce his right to permanent residence in Australia or his status as an Australian citizen or as a citizen of another country and make the Declaration of Loyalty.
(6) Where in his opinion it is just to do so, the Minister responsible for citizenship matters may in his deliberate judgement (but subject to Division 4 (Citizenship Advisory Committee)), extend the period of two months referred to in Subsection (4), but unless the Minister is satisfied that the applicant—
(a) assumed in error that he was a citizen; or
(b) did not know that he was not a citizen; or
(c) had no reasonable opportunity or not enough time to determine his status,
the period may not be extended beyond a further two months.”
It will be noted that s 65(1) provides that a person born in Papua New Guinea before Independence Day who had two grandparents born in the country or an adjacent area automatically became a citizen of Papua New Guinea.
Moreover, pursuant to s 65(5), a person who had a right of permanent residence in Australia or Australian citizenship immediately prior to Independence Day could become a citizen of Papua New Guinea if that person renounced his or her right to permanent residence in Australia, or Australian citizenship, and made a Declaration of Loyalty.
The citizenship regime prescribed in the Papua New Guinea Constitution was substantially mirrored in the domestic law of Australia.
Section 6 of the Papua New Guinea Independence Act 1975 empowered the Governor-General to make regulations:
"... making provision for or in relation to matters arising out of or connected with the attainment of the independence of Papua New Guinea, including regulations making modifications or adaptations of any Act."
Regulation 4 of the Papua New Guinea Independence (Australian Citizenship) Regulations 1975 (Cth) ("the Independence Regulations") made under s 6 provides:
4."A person who-
(a) immediately before Independence Day, was an Australian citizen within the meaning of the Act; and
(b) on Independence Day becomes 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,
ceases on that day to be an Australian citizen."
The Full Federal Court (Heerey, Mansfield and Hely JJ) in Minister for Immigration and Multicultural Affairs and Indigenous Affairs v Walsh [2002] FCAFC 35 (“Walsh”) made the following observations at [12]:
“The effect of Regulation 4, read with s 65 of the PNG Constitution, was to terminate the Australian citizenship of those born in Papua whose sole claim to Australian citizenship was their place of birth. It preserved the citizenship of those who had a further, or a different, connection with Australia (unless they renounced their citizenship).”
Persons aged under 19 on Independence Day

Special provisions were made for those persons under the age of 19 on Independence Day who had a right of permanent residence in Australia or who were Australian citizens.
Subsection 64(2) provides, in effect, that minors in this situation have a right to dual citizenship until they attain 19 years of age. If by that time a minor has not renounced Australian citizenship and made a Declaration of Loyalty then pursuant to s 64(3) such a person “ceases to be a citizen of Papua New Guinea when he reaches the age of
19 years.”
The law in this area was helpfully explained by the Full Court in Walsh as follows:
[31]Section 64 prohibits dual citizenship except in the case of infants until the age of 19, at which time they must elect whether or not to retain their citizenship. No person who has any other "real citizenship" is entitled to become or remain a citizen of PNG. "Real" citizenship is defined by subs(4) to exclude Australian citizens and Australian Protected Persons who have no permanent right to reside in Australia - thus making eligible for Papua New Guinea citizenship all those born in Papua New Guinea prior to Independence: see Goldring (supra) at p 206.
[32]A person under the age of 19 years who had been granted a right to permanent residence in Australia would nonetheless (if otherwise qualified) become a citizen of PNG on Independence Day. Under the Constitution of PNG, such a person would be entitled to dual citizenship until he or she turned 19. However, under Regulation 4 of the Independence Regulations such a person ceased to be an Australian citizen on Independence Day.
[33]This anomaly was addressed by the Papua New Guinea (Australian Citizenship of Young Persons) Regulations 1980 (Cth) which were gazetted on 25 September 1980, but which had retrospective effect to 16 September 1975. The Explanatory Statement issued in connection with the Regulations makes it plain that their purpose was to remove an anomaly arising from the difference between Australian and PNG legislation.
[34]Regulation 2 provides as follows:
"Re-acquisition of Australian citizenship lost by certain persons on Independence Day
2.A person who on Independence Day -
(a)was under 19 years of age;
(b)was not for the purposes of section 64 of the Constitution of the Independent State of Papua New Guinea a person who was never granted a right (whether revocable or not) to permanent residence in Australia; and
(c)ceased to be an Australian citizen,
shall be deemed to have re-acquired his Australian citizenship on that day."
(emphasis in the original)
Filipino citizenship
As the Applicant’s submission hinges on Anita retaining her Australian citizenship after Independence Day because she held Filipino citizenship, it is necessary to consider the citizenship law of the Philippines. Again, the outline of the law below is adopted from Fabila.
The Philippines, together with Puerto Rico and Guam, were acquired by the United States of America (“United States”) by virtue of the Treaty of Paris which was signed on 10 December 1898 and ratified by the United States on 6 February 1899 and by Spain on 19 March 1899. The Treaty was proclaimed in effect on 11 April 1899.
The United States Congress passed the Philippine Bill 1902 on 1 July 1902, which became known as the Philippine Organic Act 1902 (“1902 Act”), which legislation contained for the first time the concept of Philippine citizenship. Section 4 created Philippine citizenship by declaring:
“That all inhabitants of the Philippine Islands continuing to reside therein who were Spanish subjects on the eleventh day of April, eighteen hundred and ninety-nine, and then resided in the Philippine Islands, and their children born subsequent thereto, shall be deemed and held to be citizens of the Philippine Islands and as such entitled to the protection of the United States, except such as shall have elected to preserve their allegiance to the Crown of Spain in accordance with the provisions of the treaty of peace between the United States and Spain signed at Paris December tenth, eighteen hundred and ninety-eight.”
The concept of Filipino citizenship in the 1902 Act was a legal fiction, as the Philippines was a colony and not an independent nation. Rather, it would appear that the conferral of “citizenship” via the 1902 Act was a legal ploy to deny Filipino’s United States citizenship, and thus unfettered entry into the United States. Consequently the conferral of Filipino citizenship under the 1902 Act had no international effect, but rather was a tool for regulating and restricting the migration of persons from the Philippines to the United States.
In order to acquire Filipino citizenship under the 1902 Act a person had to be residing in the Philippines on 11 April 1899.
The Minister submits that there is no evidence to suggest that Filipino citizenship existed prior to the passage of the 1902 Act. The terms of the 1902 Act, it is submitted, suggest that residents of the Philippines (or at least some of those residents) were subjects of the Kingdom of Spain – Respondent’s Statement of Facts, Issues and Contentions (“RSFIC”) para 19.
There is another important issue that arises from the operation of s 4 of the 1902 Act. Citizenship was also bestowed on “children born subsequent thereto”. In short, s 4 laid down the principle of derivative citizenship and enshrined the principle of jus soli, or the right of anyone born in the territory of a State to nationality or citizenship.
Attention can now be directed at the next development in Filipino citizenship law, namely the passage of the Philippine Autonomy Act 1916 (US) (“the 1916 Act”) otherwise known as the Jones Law. This was the first official declaration of the United States commitment to grant independence to the Philippines. It established the first fully elected Philippine Legislature and made it more independent of the US Government. Importantly for this matter, it also contained a provision dealing with citizenship.
Section 2 of the 1916 Act provided as follows:
“That all inhabitants of the Philippine Islands who were Spanish subjects on the eleventh day of April, eighteen hundred and ninety-nine, and then resided in the said Islands, and their children born subsequent thereto, shall be deemed and held to be citizens of the Philippine Islands, except such as shall have elected to preserve their allegiance to the Crown of Spain in accordance with the provision of the treaty of peace between the United States and Spain, signed in Paris December tenth, eighteen hundred and ninety-eight, and except such others as have since become citizens of some other country: Provided, That [sic] the Philippine Legislature, herein provided for, is hereby authorized to provide by law for the acquisition of Philippine citizenship by those native of the Philippine Islands who do not come within the foregoing provisions, the natives of the insular possessions of the United States, and such other persons residing in the Philippine Islands who are citizens of the United States, or who could become citizens of the United States under the laws of the United States if residing therein.”
For the purposes of this matter, s 2 of the 1916 Act is consistent with s 4 of the 1902 Act.
In 1934 the United States Congress passed the Philippine Independence Act to “provide for the complete independence of the Philippine Islands, to provide for the adoption of a constitution and form of government for the Philippine Islands, and for other purposes.”
This legislation, also known as the Tydings-McDuffie Act, resulted in the promulgation of the 1935 Constitution of the Philippines. Article 4 of the 1935 Constitution contained the following provisions:
“SECTION 1. The following are citizens of the Philippines:
(1)Those who are citizens of the Philippine Islands at the time of the adoption of this Constitution.
(2)Those born in the Philippine Islands of foreign parents who, before the adoption of this Constitution, had been elected to public office in the Philippine Islands.
(3)Those whose fathers are citizens of the Philippines.
(4)Those whose mothers are citizens of the Philippines and, upon reach their majority, elect Philippine citizenship.
(5)Those who are naturalized according to law.
SECTION 2. Philippine citizenship may be lost or re-acquired in the manner provided by law.”
The Tribunal’s attention was next drawn to the Commonwealth Act No. 63 (PH), which provides ways in which Philippine citizenship may be lost or reacquired.
However, what is of relevance is that this Act attempted to codify, for the first time, the principles underpinning the loss of citizenship. In short, the Philippine Legislature recognised that it is possible for a person to lose his or her citizenship. Amongst the grounds listed for losing citizenship were naturalisation in a foreign country, express renunciation of citizenship and by subscribing to an oath of allegiance to support the constitution or laws of a foreign country upon attaining 21 years of age or more.
Following the commencement of the 1902 Act there was considerable jurisprudence generated in the Supreme Court of the Philippines on the question of loss of citizenship. This mostly concerned persons of Chinese background who were born in the Philippines, went to China and only returned to the Philippines some time later. The question that arose was whether a person born in the Philippines who leaves and resides for a lengthy period in a foreign nation thereby forfeits their Filipino citizenship.
For present purposes reference need only be made to the decision of Benito Muñoz v The Collector of Customs G.R. No L-7256, 23 November 1911. The applicant’s father was born in China and came to the Philippines when he was about 20 years old. He lived in the Philippines for the next 60 years and only occasionally left the Philippines, and then for short visits. When he first came to the Philippines he obtained from the Spanish Government a permission to reside, married a Filipino woman and had issue. After his first wife died he married a second Filipino wife and the applicant was his son from this marriage. The applicant was born in 1880 and when he was 11 he was sent to China and remained there until 1911 when he returned to the Philippines and sought re-entry as a citizen.
Moreland J, with whom Torres, Mapa, Johnson, Carson and Trent JJ concurred, first set out the following facts:
“6. That said Benito Muñoz lived in the Philippine Islands with his father until he attained the age of eleven years, when he departed for China, and there remained until January 16, 1911, when he returned to the Philippine Islands in the steamer Taisang, and sought admission thereto as a native and citizen thereof;
7. That before the immigration officers who investigated his right of entry he presented satisfactory proof that he would have returned sooner to the Philippine Islands had it not been for certain financial difficulties, and that he had never intended to expatriate himself and had never taken any active steps to that end;
8. That the immigration offices denied the petitioner the right to enter the Philippine Islands solely on the theory that he is an alien of Chinese race who presents none of the required statutory proof that he is a member of the exempt class of Chinese persons;
9. That petitioner has now exhausted all administrative remedies available to him in his efforts to be declared a citizen and allowed to enter the Philippine Islands as such..”
Having set out the agreed facts, Moreland J then made the following observations:
“This court has already held in the case of United States vs. Go Siaco (12 Phil. Rep., 490) that a male person born in the Philippine Islands, of a Filipino mother and a Chinese father, said father being domiciled with his permanent home in the Philippine Islands and subject to the jurisdiction of the government thereof, is, prima facie, a citizen of the Philippine Islands; and the fact that he, at the age of 14, went to China and remained there until 1897 when he returned to the Islands where he has since continuously resided, was not sufficient in itself to change his status as a citizen of the Philippine Islands.
In the case before us the applicant was born in the Philippine Islands of a Chinese father and a Filipino mother in the year 1880. The father lived continuously in the Islands for about sixty years, and acquired considerable real and personal property therein. The applicant lived here until 11 years of age, when he was sent to China, where he remained until January, 1911. On this date he returned to the Islands asserting that he was a native and citizen thereof, and with the bona fide intention of making this his permanent home and country, but he was denied entry "solely on the theory that he is an alien of Chinese race who present none of the required statutory proof that he is a member of the exempt class of Chinese persons."
These considerations, taken in connection with paragraph 7 of the stipulation of facts in which it is admitted "that before the immigration officers who investigated his right of entry he presented satisfactory proof that he would have returned sooner to the Philippine Islands had it not been for certain financial difficulties, and that he never intended to expatriate himself and had never taken active steps to that end," bring this case clearly within the decision in the case of Go Siaco, above mentioned.
This ruling is not at variance with the recent case of Lorenzo vs. Collector of Customs (15 Phil. Rep., 559). In that case it appeared that:.
In the present case the applicant left the Philippine Islands when he was about 15 years of age and remained in China until he was 34 years of age. He says himself that he had no intention of returning to the Philippine Islands until the year before he did return. His mother and his brother say that he married a wife in China. . . . The applicant says that he owned and operated a farm in China; that he was a subject of the Chinese Empire . . . . The applicant testified that he never had any intention of returning to the Philippine Islands until last year.
Nor is the decision in conflict with the rules adopted by the Department of State of the United States Government with reference to the loss of citizenship by continued residence abroad. This rule is to the effect that a continued residence abroad for three years, after the attainment of majority, produces a loss of citizenship, unless it is clearly proved that the animus revertendi existed. (Van Dyne on Citizenship, pp. 276, 277; In re Bosque, 1 Phil. Rep., 88.)
In the case before us the intention to return is admitted, as is also the fact that the return was prevented by circumstances over which the applicant had no control. Under such conditions citizenship is not lost where the stay abroad is not prolonged beyond that shown in the case at bar, and when there is, in fact, a bona fide return to the native land with the honest intention to make it his permanent home and country.”
(emphasis in original)
This Supreme Court decision stands for the following propositions:
(a)a person who had acquired Filipino citizenship could lose that status if he or she, having voluntarily departed from the Philippines, did not evince a desire to return; and
(b)a person who had acquired Filipino citizenship does not lose their citizenship in circumstances where they have voluntarily departed from the Philippines, and have evinced a desire to return but were prevented by circumstances over which they had no control.
The judgment of Moreland J focuses on three particular circumstances.
First, the length of time a person has been absent from the Philippines.
Second, the age of the person when they left. This is particularly important when the person left the Philippines as a minor and where their departure was dictated by events over which they had no control.
Third, was there an intention to return to the Philippines, but such return was prevented or delayed by circumstances over which an Applicant had little or no control.
Underpinning all of these considerations is the assumption that an applicant has not voluntarily determined to make another nation his or her permanent home and country.
This was the law of the Philippines from the time of the 1902 Act until the enactment of Commonwealth Act No. 63 in 1935.
It is also desirable to refer to the 1943 Constitution of the Philippines (“the 1943 Constitution”) which was promulgated under the auspices of the Japanese Occupation forces. The 1943 Constitution purported to proclaim independence for the Philippines, but this was a fiction and was not internationally recognised. Nonetheless Article VI of the

1943 Constitution dealt with citizenship and contained the following provision – Exhibit 2 ST10 p. 98:
SECTION 1. The following are citizens of the Philippines:
(1) Those who are citizens of the Philippines at the time of the adoption of this Constitution and their descendants.
Finally, reference needs to be made to the provisions contained in Article III of the

1973 Constitution of the Philippines
:
“SECTION. 1. The following are citizens of the Philippines:
(1) Those who are citizens of the Philippines at the time of the adoption of this Constitution.
(2)   Those whose fathers or mothers are citizens of the Philippines.
(3)   Those who elect Philippine citizenship pursuant to the provisions of the Constitution of nineteen hundred and thirty-five.
(4)   Those who are naturalized in accordance with law.
SECTION. 2. A female citizen of the Philippines who marries an alien shall retain her Philippine citizenship, unless by her act or omission she is deemed, under the law, to have renounced her citizenship.
SECTION. 3. Philippine citizenship may be lost or reacquired in the manner provided by law.
SECTION. 4. A natural-born citizen is one who is a citizen of the Philippines from birth without having to perform any act to acquire or perfect his Philippine citizenship.”
Finally, the Minister drew the Tribunal’s attention to the following observations of the High Court in Re Canavan; Re Ludlam; Re Waters; Re Roberts [No 2]; Re Joyce; Re Nash; Re Xenophon [2017] HCA 45 at [37]:
“Whether a person has the status of a subject or a citizen of a foreign power necessarily depends upon the law of the foreign power. That is so because it is only the law of the foreign power that can be the source of the status of citizenship or of the rights and duties involved in that status. In Sykes v Cleary, Mason CJ, Toohey and McHugh JJ said that ‘[a]t common law, the question of whether a person is a citizen or national of a particular foreign State is determined according to the law of that foreign State’, the common law rule being, in part, a recognition of the principle of international law that ‘it is for every sovereign State…to settle by its own legislation the rules relating to the acquisition of nationality.”
The Minister also drew the Tribunal’s attention to the following remarks of Brereton JA – RSFIC para 42:
“Distilling the content of foreign law is problematic, as it requires an Australian court to pronounce the law of a jurisdiction with which it is unfamiliar. It is trite to observe that the best court to adjudge the law of a particular forum is a court of that forum. There is a risk, as Spiegelman CJ noted in Murakami v Wiryadi, that ‘important aspects of the foreign law will be lost in translation…’”
(citations omitted)
The Tribunal accepts that if various members of the Applicant’s family, including Anita, have or had Filipino citizenship, then that will need to be determined according to the relevant law of the Philippines. Further, the Tribunal also accepts that reaching a conclusion on this issue is made that much more difficult in the absence of expert evidence from the Philippines and that the best forum for determining the Filipino citizenship status of the Applicant and her family is a court vested with appropriate jurisdiction in the Philippines.

It is also the case that the relevant citizenship laws of the Philippines have been drafted in the English language and, as such, some of the problems alluded to above do not apply in this matter.
Unfortunately the Tribunal does not have the option of referring the Applicant’s Filipino citizenship status to a foreign tribunal or court to resolve. The Tribunal is vested with the jurisdiction to determine this issue and must do so in order to resolve the issue of whether to affirm or substitute the reviewable decision. The Delegate made a specific finding on this issue, and the Tribunal, likewise, is required to make its own finding.
Family tree – Applicant’s mother and maternal grandparents
The Tribunal has before it an Extract of Entry dated 6 October 1965 certifying that Anita was born at Daru, Western District, Papua in July 1959 – Exhibit 1 T4 p. 231. The Tribunal accepts the authenticity of this document.
In addition, the Tribunal has been provided with a Statutory Declaration dated

2 October 2017 in which Anita deposed to the following – Exhibit 1 T4 p. 229:
(1)“I am an Australian Citizen by Birth.
(2) I acquired my Australian Citizenship by Naturalisation on the 23 August 1966,
(3)I have never moved to live in Australia as I have never known the procedure on how to go about it up until this date.
(4)I have never obtained Papua New Guinea Citizenship. I have never signed a Form 1 to renounce my Foreign Citizenship and sign a Declaration of Loyalty Papua New Guinea. I have lived in Papua New Guinea since I was born on the 23 July 1959.
(5)I am eligible for Philippines Citizenship by Marriage but have never obtained this Citizenship and have never made an Application for Philippines Citizenship.”
The Tribunal has also been provided with a copy of the Certificate of Marriage of Anita and Alfredo. The Certificate is dated 17 July 1978 and certifies that on that day Anita and Alfredo married in Port Moresby. Anita’s birth date is stated to be July 1959 and her birthplace as Daru. Her parents are listed as Ildephonse Fabila (Ildephonse) and her mother as Margaret Pan-Tung (Margaret) – Exhibit 1 T4 p. 233.
Anita had six siblings – Exhibit 1 T4 p. 235:
Name  Place of birth  Date of birth
Pedro Ildephonse Joseph                 Port Moresby  March 1957
Hubert Marcello  Port Moresby  May 1958
Emanuel Rafael  Mendi, Papua  September 1960
Maria Annuncia  Mendi, Papua  January 1962
Eduardo  Port Moresby  May 1963
Geradus Archie  Port Moresby  November 1964
In the earlier determination of Fabila, evidence was presented about Anita’s parents, namely – Fabila at [29]:
(a)Ildephonse was born in May 1927 at Mou, Kairuku, Central District, Territory of Papua;
(b)
Ildephonse was granted the Right to Permanent Residence in Australia on

14 September 1966;
(c)Ildephonse renounced his Right to Permanent Residence in Australia and signed a Declaration of Loyalty to Papua New Guinea on 22 October 1975;
(d)Anita’s mother, Margaret, was born in October 1938 in Koukou, Central District, Territory of Papua; and
(e)Margaret renounced her Right to Permanent Residence in Australia and signed a Declaration of Loyalty to Papua New Guinea on 23 June 1982.
The Tribunal has been presented in this matter with contemporary documentation prepared by the Department of Immigration relating to Ildephonse’s application for Right of Permanent Residence in Australia – Exhibit 1 T6 pp. 252 - 255.
It would appear from this documentation that both Ildephonse and Margaret applied for Right of Permanent Residence on 13 July 1964, and that Ildephonse’s application included his son, Henry Thomas William, from a previous marriage. It would also appear that the application was made not to facilitate passage to Australia, but to receive more advantageous remuneration benefits in Papua. In any event, the only right of entry granted was limited to Ildephonse and his son Henry Thomas William – Exhibit 1 T6 p. 255.
The Tribunal accepts the Minister’s submission that there is no evidence that Margaret was ever granted a Right of Permanent Residence in Australia, and therefore the exclusion in

s 65(4)(a) of the Constitution of Papua New Guinea does not apply – RSFIC para 36.
HEARING
This matter was first heard on 4 October 2022 and again on 27 January 2023. The Hearing was conducted remotely and, unfortunately, there were numerous technical issues that arose in the course of the Hearing with witnesses needing to be linked in from both Australia and Papua New Guinea.
In the interim the Tribunal convened a number of Telephone Directions Hearings to assist in advancing the Applicant’s submission that she and her maternal relatives were able to satisfy s 65(4)(d) of the Constitution of Papua New Guinea.
Throughout the proceedings, the Applicant was represented by Ms G Morea and the Minister by Mr A Chan.
Following the Hearing of 27 January 2023 the Tribunal received written submissions from the parties, with the final submissions being received from the Applicant and dated

13 March 2023.
CONTENTIONS
Was Anita an Australian citizen prior to Independence Day?
It is not disputed that Anita was born in July 1959 in Daru. Daru was then located in the Territory of Papua. As Anita was born in an Australian Territory, she became an Australian citizen at birth – s 10(1) of the 1948 Act. Consequently, both the Applicant and Minister agree that Anita became an Australian citizen at birth – Exhibit 1 T4 pp. 225 - 226,

RSFIC para 26.
Anita gained her Australian citizenship by birth and not, as she claimed in her Statutory Declaration of 2 October 2017, by naturalisation.
Did Anita become a Papua New Guinea citizen on Independence Day?
Subsection 65(1) of the Papua New Guinea Constitution provides that a person born in Papua New Guinea prior to Independence Day who had two grandparents born in Papua New Guinea or an adjacent area, automatically became a citizen of Papua New Guinea on Independence Day.
The Applicant claimed that she had two grandparents who were born in Papua New Guinea: Anna Theresa Natera born in Babiko Central District, Papua and Theresa Solien born in Kanosia, Central District Papua – Exhibit 1 T9 p. 273. The Applicant’s brother, Emmanuel, made the same claim which was accepted by the Tribunal in Fabila at [67] – [68]. It is not disputed in this matter that the Applicant had two grandparents born in Papua New Guinea.
Anita therefore satisfies the requirement of s 65(1) of the Papua New Guinea Constitution, and automatically became a Papua New Guinea citizen, unless one of the exclusory provisions in s 65(4) applied.
It is therefore necessary to determine if any of the exclusory provisions apply to Anita.
Right of permanent residence – s 65(4)(a)
Whilst the 1948 Act deemed the Territory of Papua to be part of Australia, this did not confer a right a Right of Entry into Australia. Entry into Australia was determined by the

Migration Act 1958.
Under that Act a person born in Papua required an entry permit or authority to travel, to enter, and remain in Australia.
The High Court in Re MIMIA; Ex ParteAme (2005) 222 CLR 439; [2005] HCA 36 rejected a submission that a person born in Papua with Australian citizenship had the automatic Right of Permanent Residence in Australia:
[22]
“At the time, s 6(1) of the Migration Act provided that an immigrant who entered Australia without an entry permit was a prohibited immigrant. Such a person was liable to deportation under s 18. Sections 6 and 7 provided for the discretionary grant of entry permits, which might be temporary or permanent. A right of permanent residence (in practice, a right to re-enter Australia free of the constraints of s 6) could be acquired by a person who was granted a permanent entry permit (s 15). Before Independence Day, Papua was an external Territory of Australia. External Territories were excluded from the definition of Australia in s 17 of the Acts Interpretation Act 1901 (Cth). The Migration Act did not define Australia in any manner inconsistent with the definition in the Acts Interpretation Act. Section 5(4) of the Migration Act referred to persons who had left Australia but not "entered any country other than a Territory outside Australia". That was consistent with an external Territory being outside Australia. The Migration Act defined "immigrant" to include persons entering Australia for temporary or permanent purposes. The Act applied, and was administered on the basis that it applied, to persons entering mainland Australia from external Territories. As is evident from the Report of the Constitutional Planning Committee, that historical fact was known to the framers of the Papua New Guinea Constitution; it was, indeed, a fact of which they were acutely aware. It led them to describe their Australian citizenship as other than "real". It was asserted that s 65 of the Papua New Guinea Constitution should be interpreted in the light of an understanding that "the applicant's Australian citizenship at birth (and non-alien status) carried with it a right to permanent residence in Australia as a matter of both statutory construction and as a matter of constitutional principle". In this connection reliance was placed upon a passage in the judgment of this Court in Air Caledonie International v The Commonwealth where reference was made, in a different context, to the right of an Australian citizen to enter the country being unqualified by any law. Clearly, that passage was not referring to the right of inhabitants of Papua to enter mainland Australia, which was qualified by the Migration Act. As has been observed, in construing s 65 what is important is the law as it was applied to the inhabitants of Papua, an application that is reflected in the language of ss 64 and 65. The understanding of Australian law reflected in ss 64 and 65 of the Papua New Guinea Constitution was not erroneous. When Australia acquired Papua as an external territory, it was not obliged constitutionally to give inhabitants of that external territory an unfettered right of entry into mainland Australia. To the contrary, the broad power conferred by s 122 of the Australian Constitution supported laws restricting such entry by those inhabitants. In any event, where the question is one of construing

s 65 of the Papua New Guinea Constitution, the understanding of Australian law and practice clearly revealed in the text is what matters.
[23]
It is improbable in the extreme that it was the purpose of s 65 of the Papua New Guinea Constitution to exclude from citizenship of the new nation all indigenous Papuans living at Independence Day unless they took positive steps to renounce their Australian citizenship. The purpose was the opposite. Although indigenous Papuans were Australian citizens before Independence Day, they were treated by Australian law, and regarded by the framers of the

Papua New Guinea Constitution as not having, on that account alone, a right to permanent residence in Australia. The right to permanent residence referred to in s 65(4)(a) is the same as the right referred to in s 64(4)(b), that is to say, the right which a small number of Papuans had received by grant, not a right which all Papuans had by virtue of birth in the Territory of Papua at a time when it was an external Territory of Australia. The construction which the applicant seeks to place on s 65 must be rejected. On Independence Day, the applicant became a citizen of Papua New Guinea by virtue of the Papua New Guinea Constitution. That Constitution was antagonistic to dual citizenship. In recognition of that policy of the new Independent State, Australia, by reg 4, withdrew the applicant's Australian citizenship. That withdrawal was not arbitrary. It was consistent with the maintenance of proper relations with the new Independent State, and with the change that occurred in Australia's relationship with the inhabitants of that State.”
(citations omitted)
The Tribunal must first determine if Anita acquired a Right of Permanent Residence in Australia.
The evidence in this matter, as in Fabila, shows that Anita’s parents both applied for permission to enter Australia on 13 July 1964, and that Ildephonse’s application included his first son, Henry Thomas William, from an earlier marriage. Margaret’s application included both herself and her then six children, including Anita – Exhibit 1 T2 p. 21,

Fabila
at [72].
Ildephonse’s application was granted on 23 August 1966, as was Henry Thomas William, but the documentation before the Tribunal strongly suggests that Margaret’s application was refused – Exhibit 1 T6 pp. 252 - 255, Fabila at [73].
The only other family member who was granted a Right to Permanent Residence was the Applicant’s uncle, Mr Pedro Ildephonse Joseph Fabila, in 1973. Pedro, it should be noted, made a separate application at a much later date. His grant of permanent residence, in short, did not flow from Margaret’s 13 July 1964 application – Exhibit 1 T6 p. 253.
The Tribunal agrees with the Minister’s submission that as Pedro was required to make such an application in 1973, it suggests that Margaret’s 1964 application in respect of herself and her then six children (including Pedro and Anita) was unsuccessful – RSFIC para 34.
In his decision, the Delegate made the following observations – Exhibit 1 T2 p. 23:
“A search of Departmental and historical records did not provide any information either about the outcome of the application lodged by Margaret Pan Tung FABILA and failed to locate any evidence to support Mrs MOREA’s claim that Margaret, separately or in combination with her seven children, had been granted right of permanent residence in Australia prior to PNG Independence.
All of the supporting evidence you supplied with your initial application and in response to further information received by the Department on 23 October 2020 referred to Anita Faustina ALARCOS’ parents, her half-sibling Henry or her older brother Pablo. None of them contained any evidence that a right of permanent residence was granted to your mother Anita Faustina herself.”
As the Tribunal does not have before it evidence that Margaret was ever granted a right of permanent residence, nor that any of her then six children were granted such a right flowing from her 13 July 1964 application, the exclusion in s 65(4)(a) of the Papua New Guinea Constitution does not apply.
Naturalised Australian citizen – s 65(4)(b)
As previously noted, Anita, in her Statutory Declaration of 2 October 2017, deposed that she acquired her Australian citizenship by naturalisation on 23 August 1966 – Exhibit 1 T4 p. 229.
The evidence before the Tribunal does not support this claim.
Anita acquired her Australian citizenship by birth in 1959, not naturalisation in 1966. Further, the date of the claimed naturalisation, 23 August 1966, is the date that her father and half-brother acquired a right of entry into Australia. As explained above, there is no evidence before the Tribunal that Anita acquired any rights, whether naturalisation or entry to Australia on that date.
As Anita acquired Australian citizenship by birth, rather than naturalisation, s 65(4)(b) of the Papua New Guinea Constitution does not apply.
Registered Australian citizen – s 65(4)(c)
Section 11 of the 1948 Act provided that a person born outside of Australia on or after

26 January 1949 is an Australian citizen by descent if, inter alia, in the case of a person born in wedlock, at the time of the birth the father or mother was an Australian citizen and the birth was registered at an Australian consulate within five years after its occurrence.
As Anita was born in the Territory of Papua, which was deemed to be part of Australia,

s 11 of the 1948 Act does not apply. Further, even if s 11 did apply, there is no evidence before the Tribunal that her birth was registered at an Australian consulate within five years after its occurrence.
Citizen of a country other than Australia – s 65(4)(d)
The Applicant claims that this exclusion to the automatic conferral of Papua New Guinea citizenship applies as Anita was at Independence Day, a citizen of the Philippines.
The Applicant’s case can be summarised as follows:
(a)Anita became a Filipino citizen at birth;
(b)Anita did not become a citizen of Papua New Guinea on Independence Day by operation of s 65(4)(d);
(c)Anita retained her Australian citizenship; and
(d)Anita remained an Australian citizen at the time of the Applicant’s birth, and, consequently, the Applicant is entitled to Australian citizenship by descent.
The Tribunal has been presented with a significant amount of documents about the Applicant’s family. Some of these documents mirror those provided to the Tribunal in Fabila. In Fabila, reference was made to an article entitled “The lost Filipino descendants” by Alfredo Hernandez. In that article information is provided about Marcello Fabila (Marcello) who is Anita’s great-grandfather. It should be noted that Marcello is often referred to in various documents, both Government and private as “Marcelo”. Whilst either spelling could be used, for the purposes of consistency with Fabila he will be referred to as “Marcello”. The article contains the following information – Fabila at [98]:
“Of the early Filipino’s who came to PNG, it was Marcello Fabila who gained much prominence as a mission worker. Born in 1869 in Dancalan, Antique in Central Philippines, Marcello was a seaman and an adventurer who travelled widely in Southeast Asia, Australia and British New Guinea (aka Papua).
A knowledgeable and devoted Catholic, he decided to join the early missionaries of the Yule Island’s Catholic Diocese in the Bereina district of the British New Guinea in 1898 then headed by European Bishop Alain de Boismenu. Marcello was then 29 and for his first job, was made seaman on ‘St Andrew’, the mission ship.
Later as working as a catechist-teacher, Marcello met a Yule island girl Raurau Ke’e and married her in 1901. They had two children – Mika (Michael) Marcello Fabila and Kala (Salvatore) Marcello Fabila. Both Marcello and Raurau worked in many villages within the Bereina district of Papua.
Widowed at 52, Marcello married in 1919 a Filipino-Papua New Guinean girl Anna Natera, then 18, the fifth child among 14 children of Filipino Emannuel Simplicio Natera and Papuan woman Maria Aiva Ume. Emmanuel Simplicio was a Catholic mission worker in PNG during the mid-1800s….
He died on November 20, 1942 at the age of 73 in Poukama, Central province and was buried at the mission cemetery on Yule Island. Anna died in 1989 in Brisbane, Australia at the home of one of her children. She was 88…”
In the Applicant’s Statement of Closing Submission (“SCS”) dated 8 February 2023 further information is provided about Marcello.
Before turning to Marcello, it is necessary to refer briefly to his father, Hildephonse. The Tribunal in this matter, as in Fabila, has been presented with scant evidence about Hildephonse. As Marcello was born in (approximately) 1869, it is reasonable to presume that Hildephonse was born at some time prior to 1850. Where he was born is uncertain and the Tribunal has not been presented with any evidence concerning this time or place of death. In these circumstances it is not possible for the Tribunal to reach any sensible conclusion about the citizenship status of Hildephonse. Attention must necessarily be primarily directed to Marcello.
The Applicant submits that Marcello – SCS pp. 1 - 12:
(a)was born in 1869 in Dangcalan, Antique in the central Philippines;
(b)travelled to Papua in the 1890s with European Roman Catholic priests to teach catechism to the Papuan people;
(c)arrived at Yule Island in approximately 1898;
(d)in April 1901 he married a Yule Island woman, Raurau Ke’e, and they had two living children;
(e)after being widowed, married in November 1919, when 52 years of age, a Filipino-Papuan woman, Anna Natera, who was then 18 years of age. They had four children; three girls and a boy. The boy was Ildephonse, the father of Anita;
(f)died in Papua in November 1942 aged 73 years of age;
(g)became a citizen of the Philippines through s 2 of the 1916 Act (which is set out above);
(h)on 11 April 1899, he was still a Spanish subject and still an inhabitant of the Philippines, albeit residing at that time in Papua; and
(i)did not renounce his status as a Spanish subject, and there is no evidence he acquired the nationality of another country.

It is further submitted with respect to Ildephonse – SCS pp. 1, 13:
(a)he was born in May 1927 in Papua;
(b)his Philippines citizenship status was governed at that time by the 1916 Act;
(c)at the time of his birth his father, Marcello, was, by virtue of the 1916 Act, a Filipino citizen;
(d)section 2 of the 1916 Act provided, inter alia, that children of Filipino citizens “born subsequent thereto, shall be deemed and held to be citizens of the Philippine Islands”; and
(e)in 1984 Ildephonse visited his Filipino relatives in the Philippines and remained in contact with them in the following years.
As indicated above, the Tribunal has been presented with somewhat conflicting or incorrect submissions from the Applicant and her family.
An example of the latter, is the claim by Anita that she acquired Australian citizenship by naturalisation on 23 August 1966, which is plainly incorrect.
The Minister draws the Tribunal’s attention to Anita’s Statutory Declaration of

2 October 2017 wherein she deposed that while she is eligible to Philippines citizenship

by marriage
she had never applied for Filipino citizenship – Exhibit 1 T4 p. 229.
The Minister submits that Anita’s declaration that she had never obtained Filipino citizenship may cast doubt on her claim to have automatically obtained Filipino citizenship from birth – RSFIC para 42.
Clearly there is an issue with Anita’s declaration that she is entitled to Filipino citizenship by marriage as distinct from by descent. The Applicant’s case is predicated on her mother, grandfather and great-grandfather all possessing Filipino citizenship, and not that her mother may be entitled to Filipino citizenship by marriage.
It is, perhaps, not surprising that Anita suggested that her claimed Filipino citizenship came from marriage and not descent, as her husband, Alfredo, was born in Pina, Laguna, Philippines in March 1946 – Exhibit 1 T4 p. 233. It is ironic that the Applicant, based on the citizenship law of the Philippines outlined earlier, could claim Filipino citizenship by virtue of her father (as distinct from her mother), but this claim would have no ostensible bearing on her ability to claim Australian citizenship. The reason for this being that the Applicant’s parents married on 17 July 1978, approximately three years after Papua New Guinea became an independent nation-state. On Independence Day, Anita was unmarried and her claim to Filipino citizenship by marriage had no basis at that time.
The Minister, quite properly, pointed out that if the Applicant believes that she and Anita are Filipino citizens, then– RSFIC para 42:
“the obvious means by which that proposition could be verified is a request being made to the Filipino authorities. There is no evidence that that has occurred. There is no explanation as to why that obvious inquiry has not been made. The Tribunal does not know whether the Filipino Government accepts that the applicant and/or her mother are Filipino citizens”.
The Minister also referred to the observations in Fabila (at [141]) where the applicant in that matter had the same representative as the Applicant and where Ms Fabila and Ms Alarcos are related. Set out below are the observations of the Tribunal in Fabila:
140.“As explained above, the Tribunal has been presented with no evidence from the Philippines Government about that Government’s position of the citizenship status of the Applicant’s father, or, indeed, her paternal grandfather and great-grandfather. Citizenship law is both complex and constantly evolving. In the case of the Philippines, over the past century the principle underpinning the citizenship has moved from Jus Soli to Jus Sanguinis – citizenship determined or acquired by the nationality of one or both parents. Unlike some other countries, the Philippines now recognises dual citizenship in some circumstances.
141.However, the Tribunal can only proceed on the material presented, and that material does not support the fundamental propositions advanced by the Applicant. If a tribunal of fact was presented with official documentation from the Philippines that recognised Marcello Fabila obtained and retained Filipino citizenship (which is not demonstrated by the material before the Tribunal) then, perhaps, a different result would eventuate. It is not appropriate to unduly speculate on such a circumstance, as it is up to the Applicant and her family to make the necessary enquiries with Filipino Government.”
It is important to set out the findings of the Tribunal in Fabila with respect to Marcello’s citizenship status as, subject to what is explained below, the Tribunal was presented in this matter with basically the same information about Marcello as was presented in Fabila. I made the following findings about Marcello in Fabila:
96.“In order to acquire Filipino citizenship under the 1902 Act, a person had to be residing in the Philippines on 11 April 1899. The Tribunal has no information before it whether Hildaphonso was either alive on 11 April 1899 or, if he was, he was residing in the Philippines. If he was alive at that time and was living in the Philippines, then he would been a citizen of the Philippines by virtue of the 1902 Act. Conversely, if Hildaphonso was not living in the Philippines on 11 April 1899 he would not have conferred on him Filipino citizenship.
97.There is another important issue that arises from the operation of s 4 of the 1902 Act. Citizenship was also bestowed on ‘children born subsequent thereto’. In short, s 4 laid down the principle of derivative citizenship and enshrined the principle of jus soli, or the right of anyone born in the territory of a State to nationality or citizenship.
…
99.… it would appear that Marcello arrived at Yule Island, Papua, in 1898. Prior to that time it would also appear that as a seaman he travelled throughout Southeast Asia and Australia. In other words, on 11 April 1899 he was not living in the Philippines and therefore did have the newly created Filipino citizenship bestowed on him by virtue of s 4 of the 1902 Act.
…
102.For the purposes of this matter, s 2 of the 1916 Act is consistent with s 4 of the 1902 Act, and again there is no evidence that Marcello was residing in the Philippines on 11 April 1899, indeed all the evidence points to the fact that, on 11 April 1899, Marcello was residing on Yule Island.
103.It is impossible for the Tribunal to make any sensible determination on whether Marcello remained on and after 11 April 1899 a Spanish subject. No evidence has been led on this issue, and in the absence of submissions or evidence, the Tribunal is not in a position to make any findings.
…
106.Based on the previous discussion of the 1902 and 1916 Acts, the Tribunal finds that Marcello was not a citizen of the Philippines at the time of the adoption of the 1935 Constitution of the Philippines.
107.
Subsection 1(3) of the 1935 Constitution of the Philippines would only be relevant if by 1935 Hildaphonso was still alive. As Mr Hawke, on behalf of the Minister, pointed out, this is highly unlikely as he would have been somewhere between 90 and 100 years of age by that time. This matter could only be conclusively resolved by the Applicant obtaining a Death Certificate of Hildaphonso. In the absence of any evidence to the contrary, the Tribunal proceeds on the basis that by the time of the adoption of the

1935 Constitution of the Philippines Hildaphonso was deceased and s 1(3) is inapplicable.
108.The Tribunal’s attention was next drawn to the Commonwealth Act No 63 (PH) (Act No 63), which provides ways in which Philippine citizenship may be lost or reacquired – Exhibit 2 pp. 31 - 32.
109.None of the provisions for the renunciation of citizenship have particular relevance to Marcello due to the paucity of evidence before the Tribunal.
110.However, what is of relevance is that Act No. 63 attempted to codify, for the first time, the principles underpinning the loss of citizenship. In short, the Philippine Legislature recognised that it is possible for a person to lose his or her citizenship.
111.Following the commencement of the 1902 Act there was considerable jurisprudence generated in the Supreme Court of the Philippines on the question of loss of citizenship….
…
119.... When, as in this matter, Marcello never returned to the Philippines, married Papuan women and fathered many children, all strongly suggest that he had determined that his place of domicile was Papua and not the Philippines.
120.This was the law of the Philippines from the time of the 1902 Act until the enactment of Commonwealth Act No. 63 in 1935. It follows as a matter of logic and law that if, contrary to the above findings, Marcello obtained citizenship by virtue of the 1902 Act, then that citizenship was forfeited by his prolonged absence from the Philippines and his implicit intention to permanently reside in Papua with his family.
121.It is not necessary, having regard to the above discussion, to deal with the implications of the 1943 Constitution of the Philippines (PH) (1943 Constitution of the Philippines) for Marcello as he had passed away by the time of its promulgation – Exhibit 2 ST 10 pp. 33 – 34.
122.Having determined that Marcello either never obtained Filipino citizenship, or, in the very unlikely event that he did, that he subsequently forfeited it, it follows inexorably that any of his descendants did not have, and could not claim, Filipino citizenship…”
The Minister in this matter made submissions consistent with the above reasoning and findings of the Tribunal in Fabila – RSFIC paras 45 - 50.
The Minister submitted that the Applicant had two options in seeking to obtain Australian citizenship by establishing her maternal lineages claimed Filipino citizenship -

RSFIC para 47. The first “was simply ask the Filipino government what the answer to that question was.” The second “was to seek to convince an Australian Tribunal that the applicant’s maternal grandmother was a Filipino citizen when the applicant was born in the 1980s by reason of the mind state held by the applicant’s great-grandfather when he left the Philippines 130 years ago.”
If all that the Tribunal was presented with was basically the same or similar documentation and submissions as that presented in Fabila, then the Tribunal would have no difficulty in reaching the same conclusion as in Fabila. To that extent, the Tribunal agrees with the submissions of the Minister.
The first Hearing day of this matter was 4 October 2022. After receiving testimony from the Applicant, the Tribunal agreed to adjourn the proceedings to allow the Applicant to contact the Philippines Embassy in Port Moresby to ascertain if the Embassy was willing to provide official written documentation as to the Applicant’s Filipino citizenship status.
A subsequent Telephone Directions Hearing was convened on 4 October 2022 to obtain information on the status of the Applicant’s contact with the Philippines Embassy in Port Moresby. The Tribunal was informed that attempts to contact the Embassy up to that point of time had been unsuccessful.
The Tribunal reconvened again on 21 November 2022, and the Applicant informed the Tribunal that she had made “over the counter” inquiries with the Philippines Embassy, but due to internal problems in the Embassy she was experiencing delays with the processing of her request. The Tribunal agreed to adjourn the matter to give the Applicant further time to advance her request with the Embassy.
On 19 December 2022 the Tribunal again reconvened. Directions were made allowing for the Applicant to provide the Tribunal with any further information and for the matter to be convened for a final day of Hearing on 27 January 2023.
The Hearing was resumed on 27 January 2023. The Tribunal was informed that the Applicant had received a response from the Philippines Embassy on 22 January 2023 and that her request had been referred to the Philippines Bureau of Immigration. Directions were made to allow the parties to provide any further information prior to a decision being made by the Tribunal.
Up until this time the only information that the Tribunal had been provided about the possible position of the Philippines Government to Anita’s claim to Filipino citizenship was her testimony at the Hearing of 4 October 2022. Anita testified that that she had a conversation in 1977 with a consular official of the Philippines Embassy in Port Moresby. She testified that she was applying for a tourist visa and she was informed that she was a Filipino citizen by descent. However, this conversation was not corroborated by any written material from the Embassy. The Tribunal agrees with the Minister’s submission that the Tribunal cannot speculate on Anita’s Filipino citizenship purely based on her recounting a casual conversation 45 years ago – Respondent’s Closing Submissions (“RCS”) para 7.
However, the Applicant subsequently provided to the Tribunal a copy of an email dated

15 February 2023 from the Board of Special Inquiry, Bureau of Immigration. The email is as follows:
“On 01 February 2023, we received a copy of your email requesting this Bureau to issue with a letter supporting your Filipino ancestry and heritage, stating your eligibility to be identified as a Philippine citizen, and acknowledging you as a

3^rd generation Filipina.
In relation to this, please see attached.”
Attached was a letter dated 14 February 2023 from Atty. Christopher R. Coles, Member, BSI Legal Cluster and Atty. Ruben C. Casibang, Jr., Over-all Cluster Head, BSI. The heading to the letter is “Re: Opinion on Acknowledgment of Filipino Ancestry”.
Having regard to the importance of this document it is set out in full below:
“On 01 February 2023, we received a copy of your email requesting this Bureau to issue a letter supporting your Filipino ancestry and heritage, stating your eligibility to be identified as a Philippine citizen, and acknowledging you as a

3^rd generation Filipina.
At the outset, please note that we do not issue letter of support for any claim of Philippine citizenship. However, we may opine on the merits of your claim for Filipino ancestry based on your representation of facts and gleaned from the documents that you provided as follows:
·You were born on July…1959 in Papua New Guinea (PNG) to Ildephonse Fabila and Margaret Pan Tung;
·Your father Ildephonse Fabila (Ildephonse) was a Filipino at the time of your birth. He became an Australian citizen in 1966 and PNG citizen in 1975;
·Ildephonse was born on May…1927 in PNG to Marcelo Fabila (Marcelo), alleged Filipino, and Anna Natera, alleged half-Filipina and half-Papuan; and
·Marcelo was born in the Philippines between 1862 and 1870.
We note your representation that the Holy Rosary Catholic Church in Port Moresby and the Philippine Embassy in PNG erected a memorial marker honoring Marcelo and the other members of the ‘first group of Filipino lay missionaries’ in PNG who arrived in Yule Island in the 1890s. In deference of such recognition, we find it appropriate not to touch Marcelo’s citizenship and consider him as Filipino.
As regards Ildephonse, his citizenship will be determined under the Philippine Bill of 1902 which states ‘… all inhabitants of the Philippine Islands continuing to reside therein, who were Spanish subjects on the 11^th day of April 1891, and then resided in the said Islands, and their children born subsequent thereto, shall be deemed and held to be citizens of the Philippine islands…’ Given that Ildephonse was born to a Filipino father in 1927, we opine that he can be considered a Filipino.
Anent [sic] your citizenship, it will be determined under the 1935 Constitution, Article III, Section 1, paragraph 3, which states:
‘Sec. 1. The following are citizens of the Philippines –
…
(2)Those whose fathers are citizens of the Philippines; …’
In light of the foregoing, your claim to Filipino ancestry may be acknowledged.
Please be reminded that this opinion is based only on the facts and documents that you provided. Our opinion may vary when facts are modified.”
Mr Chan, on behalf of the Minister, in an email of 20 February 2023, submitted that the Tribunal could not be satisfied that Anita was a Filipino citizen on Independence Day despite the letter from the Bureau of Immigration. The following reasons were given:
(a)the Bureau’s response was subject to the proviso that it does not issue letters of support for claims of Philippines citizenship and it is not clear exactly what information was said or given to the Bureau;
(b)the Bureau confined itself to addressing Anita’s ancestry, which is distinct from citizenship. The Minister does not dispute Anita’s Filipino ancestry. It would appear that Anita’s application was not directed at citizenship even though there is a process for obtaining letters of support relating to Filipino citizenship;
(c)the Bureau’s response regarding Marcello’s citizenship defers to the fact that a Memorial Marker of Marcello exists; and
(d)the Bureau’s response appears to assume that Marcello and Ildephonse resided in the Philippine Islands from the 1890s onwards, however both lived away from the Philippines for extended periods of time.
The Applicant responded to the Mr Chan’s email in a document dated 13 March 2023. The following submissions were made:
(a)the evidence presented to the Bureau was same as that submitted to the Department and the Tribunal; in particular the following documents were provided to the Bureau:
(i)marriage certificate for Marcello;
(ii)death certificate for Marcello;
(iii)Roman Catholic Church Mission Yule Island certification in August 1961 of Marcello’s country of birth, parent’s name and birth year;
(iv)birth certificate for Ildephonse;
(v)Ildephonse’s renunciation of Australian citizenship; and
(vi)birth certificate of Anita.
(b)the Applicant accepted the difference between ancestry and citizenship, however the establishment of ancestry necessarily leads to the qualification of a person’s claim to be a Filipino by birth. The Applicant submits that her father obtained Australian citizenship in 1966;
(c)the Applicant pointed out that she specifically did not apply for Filipino citizenship but was simply seeking confirmation from the Embassy that Anita was considered a Filipino;
(d)it is noted that the Bureau defers to the fact that a Memorial Marker recognising, inter alia, Marcello was built recognising members of the first group of Filipino lay missionaries. The Applicant notes that the Bureau respectfully isolated these facts in their opinion of the matter; and
(e)the Applicant contests that the Bureau proceeded on the assumption that Marcello and Ildephonse resided in the Philippines from the 1890s onwards. It is pointed out that no document alleging that state of affairs was sent to the Bureau.
A number of matters flow from the above material.
First, the Tribunal has no reason to doubt that the Applicant either personally, or through her representative, provided to the relevant Philippines authorities key information in support of her claim and did not provide any misleading information. Both in Fabila and in this matter, the Tribunal has been impressed by the honesty and candour of the respective applicants. The Tribunal therefore accepts that the Applicant provided the requisite Philippines Government authorities with what she considered to be the key and accurate information to advance her request for assistance.
Second, the letter from the Bureau is stated to be “not a letter of support for any claim of Philippine citizenship.” Whilst this does not fundamentally undercut the value of any conclusions reached by the Bureau, it does highlight that the letter has its limitations in terms of how much weight should be placed on its findings or opinions.

Third, the authors of the letter have, in part, proceeded on a legally incorrect premise. The authors state that Ildephonse was “Filipino” at the time of Anita’s birth and became an Australian citizen in 1966 and a PNG citizen in 1975. This is incorrect, and this mistake is mirrored in the Applicant’s submission of 13 March 2023. In the Applicant’s response to the Minister’s third query, it is stated that “Ildephonse obtained Australian citizenship in 1966…”.
Ildephonse was born in Papua in 1927 and became an Australian citizen automatically from 26 January 1949 pursuant to the 1948 Act. He obtained a right of permanent residence in Australia on 23 August 1966 pursuant to the Migration Act 1958. As previously explained, Papuans who gained Australian citizenship by birth under the 1948 Act did not automatically obtain a right to enter Australia.
It would appear that the Applicant, Anita and the authors of the Bureau letter have proceeded on a fundamental misapprehension.
It would appear that the authors of the Bureau letter have proceeded on the assumption that Ildephonse did not gain Australian citizenship until 1966 and that therefore when Anita was born in 1959, Ildephonse was purely a Filipino citizen, or at least had a valid claim to Filipino citizenship. If the authors were aware that Ildephonse had gained, by birth, from

26 January 1949, Australian citizenship, it is not clear what implications that would have for his putative Philippines citizenship from their perspective.
Fourth, the reasoning of the authors of the Bureau letter so far as Marcello is concerned is opaque and somewhat confusing.
The authors first misquote s 4 of the 1902 Act, and state that all inhabitants of the Philippine Islands continuing to reside therein who were Spanish subjects on 11 April 1891 and then resided in the said Islands were deemed to be citizens of the Philippine Islands. That is not what s 4 of the 1902 Act provides. Section 4 provides that the date for determining citizenship was 11 April 1899 not 11 April 1891. This is a critical difference so far as Marcello is concerned as the evidence before the Tribunal is that Marcello arrived in Papua in circa January 1898 – RSFIC Annexure A.
Next, the authors of the Bureau letter refer to Marcello’s missionary work and the erection of a Memorial Marker and conclude “we find it appropriate not to touch Marcelo’s citizenship and consider him a Filipino.”
This is confusing on two grounds. First, the question of citizenship is, prima facie, removed from the issue of the good works of the person claiming or claimed to have citizenship. Second, the relevance of the erection of a monument in honour of a person is not relevant to the question of whether an individual meets the criteria specified in the 1902 Act.
It appears to the Tribunal that there are perhaps three matters that either require resolution or need to be removed from a decision-maker’s attention in order that the Applicant’s Australian citizenship aspirations can be properly resolved:
(a)first, and critically, the relevant Philippine authorities need to resolve the citizenship status of Marcello. Clearly he was not residing in the Philippines on 11 April 1899, the key date specified in the 1902 Act. By 11 April 1899 he was likely living in Papua as a lay missionary. He did not marry until 1901, and perhaps it can be inferred that he may have intended to return to the Philippines. More than a century later such motives are impossible to ascertain, but some inferences can be made. It would be open for it to be inferred that although Marcello was not residing in the Philippines on 11 April 1899, he was still then a Spanish subject and may have intended to return. Based on the authorities previously quoted, it would, perhaps, be open to infer that he was at that date in law a resident of the Philippines Islands albeit temporarily removed. The resolution of that question, however, is for the Philippines authorities and not this Tribunal;
(b)second, while everything flows from the resolution of the above question, the issue of Ildephonse’s citizenship is also of importance. He gained Australian citizenship by birth on 26 January 1949. He did not become an Australian citizen in 1966. Again, whether his gaining Australian citizenship negated any putative Filipino citizenship on 26 January 1949 is a question for the Philippines Government to determine; and
(c)third, and finally, when Anita was born in 1959 her father was an Australian citizen. This factor needs to be taken into account in any further submissions.
The Tribunal is sympathetic to the situation of the Applicant. She, and her representative, have attempted to the best of their ability to present their case in the context of a confusing and very difficult legal matrix.
To their credit, they have, in a short time, managed to engage with the Philippines authorities and furthered their case.
The Tribunal is unable on the material presented to agree with the submissions the Applicant has put forward. However, as indicated above, it may be that with some focused questions to the Philippines Government this may be resolved. Certainly, there is a reputable case that could be advanced by the Applicant if the right questions are asked and appropriate information is provided. Unfortunately, at this particular stage the Tribunal is not in a position to reach a different conclusion to that obtained in the reviewable decision.
DECISION
The decision under review is affirmed.

I certify that the preceding 152 (one hundred and fifty-two) paragraphs are a true copy of the reasons for the decision herein of Deputy President J Sosso

...............[SGD]...............
Associate

Dated: 20 April 2023

Date of hearing:

Date of last submissions:

4 October 2022 and 27 January 2023

13 March 2023

Applicant’s Representative:
Glenyse Morea

Solicitors for the Respondent: Mr A Chan
Sparke Helmore