Avi and Minister for Immigration and Citizenship
[2008] AATA 991
•6 November 2008
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2008] AATA 991
ADMINISTRATIVE APPEALS TRIBUNAL )
) No 2007/3852
GENERAL ADMINISTRATIVE DIVISION ) Re ROSEMARY AVI Applicant
And
MINISTER FOR IMMIGRATION AND CITIZENSHIP
Respondent
DECISION
Tribunal Dr P McDermott, RFD, Senior Member Date6 November 2008
PlaceBrisbane
Decision The Tribunal affirms the decision under review.
...............[Sgd]...............................
Senior Member
CATCHWORDS
IMMIGRATION AND CITIZENSHIP – Citizenship – Application to become an Australian citizen again – applicant citizen of Australia at birth – on independence in 1975 became citizen of Papua New Guinea and ceased to be an Australian citizen – decision under review affirmed.
Australian Citizenship Act 1948 ss 5,10,18,19,20,23AA, 23B, 23, 25
Constitution of the Independent State of Papua New Guinea s 65
Papua New Guinea Independence Act 1975 ss 4, 6
Papua New Guinea Independence (Australian Citizenship) Regulations 1975
Papua New Guinea Independence (Australian Citizenship of Young Persons) Regulations 1980
Migration Act 1958 (Cth)
Australian Citizenship Act 2007 (Cth) ss 21, 29
Australian Citizenship (Transitional and Consequential) Act 2007 s 42
Minister for Immigration and Multicultural Affairs and Indigenous 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
REASONS FOR DECISION
6 November 2008 Dr P McDermott, RFD, Senior Member INTRODUCTION
1. Ms Rosemary Avi, who has previously held Australian citizenship, has made an application to become an Australian citizen again. On 16 July 2007, Ms Avi was advised that her application was refused by a delegate of the Minister. Ms Avi now seeks a review of that decision by this Tribunal.
2. The parties have consented to this application being determined without a hearing pursuant to s 34J of the Administrative Appeals Act 1975.
3. In considering this application I have been greatly assisted by the reasons for decision of a Deputy President of this Tribunal who has recently examined the relevant issues which arise in the case of a person in the position of Ms Avi, including the significance of ss 4 and 6 of the Papua New Guinea Independence Act 1975.[1]
[1] Re Gaigo and Minister for Immigration and Citizenship [2008] AATA 590 (Hon Dr B H McPherson CBE, Deputy President).
BACKGROUND
4. Ms Avi was born in 1950[2] in Port Moresby in the then Territory of Papua. Ms Avi then became an Australian citizen by birth. This is because s 10(1) of the Australian Citizenship Act 1948 provided that a person born in Australia after the commencement of that Act became an Australian citizen by birth. The exceptions to s 10(1) have no application to Ms Avi.
[2] To protect the privacy of Ms Avi, in these reasons I do not mention her actual date of birth.
5. It is not in issue that when Ms Avi was born the Territory of Papua was then part of Australia. The submission on behalf of the Minister (which was made in respect of a number of applicants) was that Australia was defined in s 5 of the Australian Citizenship Act 1948 as including “Norfolk Island and the Territory of Papua”. This is the definition which originally appeared in s 5 of the Act and which was in force when Ms Avi was born.
EFFECT OF INDEPENDENCE
6. The Constitution of the Independent State of Papua New Guinea, in s 65(1), provided that a person born in the country before Independence Day (16 September 1975) who has two grandparents who were born in the country or an adjacent area gained automatic citizenship of the new State of Papua New Guinea. There is some contention whether Ms Avi has two or three grandparents. Ms Avi acknowledged that she has two grandparents who were born in the then Territory of Papua, namely Gogori (Keia) Sariman and Resena Theresa (Resena) Solien.I accordingly find that she has these two grandparents who were born in the country.
7. Section 65(1) of the Constitution of the Independent State of Papua New Guinea, was, by s 65(4) of that Constitution, expressed not to apply to someone who had a right (whether revocable or not) to permanent residence in Australia or to a person who is a naturalized Australian citizen or is registered as an Australian citizen under s 11 of the Australian Citizenship Act1948-1975 or a person who is a citizen of another country other than Australia.
8. I am satisfied that on Independence Day s 65(4) of the Constitution of the Independent State of Papua New Guinea had no application to Ms Avi. There is no evidence that Ms Avi then had a right of permanent residence in Australia under the Migration Act 1958. She was not then a naturalized Australian citizen or a person who was registered as an Australian citizen under s 11 of the Australian Citizenship Act1948-1975. She 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 has not been excluded in her case by the operation of s 65(4) of the Constitution.
9. I find that Ms Avi 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. She 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 she has two grandparents who were born in that country.
CESSATION OF AUSTRALIAN CITIZENSHIP
10. While Ms Avi became a citizen of the Independent State of Papua New Guinea on Independence Day, on that day she also ceased by operation of law to be an Australian citizen. This cessation of Australian citizenship occurred by virtue of the operation of regulation 4 of the Papua New Guinea Independence (Australian Citizenship) Regulations 1975. This regulation applies to Ms Avi who immediately before Independence Day was an Australian citizen; and who on that day 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.[3] 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.[4]
[3] (2005) 222 CLR 439.
[4] (2005) 222 CLR 439 at 485. See also Re Gaigo and Minister for Immigration and Citizenship [2008] AATA 590 at [13] (Hon Dr B H McPherson CBE, Deputy President).
RIGHT OF PERMANENT RESIDENCE
11. Prior to Independence Day, Ms Avi would have required a permanent or temporary entry permit under the Migration Act 1958 to enter the mainland of Australia.[5] I earlier mentioned that there is no evidence that Ms Avi had a right of permanent residence for the purposes of s 65(4) of the Constitution of the Independent State of Papua New Guinea.
[5] 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.
12. In Re Minister for Immigration and Multicultural and Indigenous Affairs, ex Parte Ame,[6] 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. This has the consequence that on Independence Day when Ms Avi last held Australian citizenship, that citizenship did not give her the right to enter the Australian mainland.[7]
[6] (2005) 222 CLR 439.
[7] See also, Goldring J, The Constitution of Papua New Guinea (1978), 204.
AUSTRALIAN CITIZENSHIP ACTS
13. On 23 June 2006, Ms Avi lodged a “Declaration of desire to resume Australian citizenship under sections 23A, 23AA, 23AB or 23B”. This declaration was lodged before the passage of the Australian Citizenship Act 2007. Ms Avi is concerned that her declaration was not considered under the Australian Citizenship Act 1948 (which in her submission is referred to as the old Act).
14. Section 23A of the Australian Citizenship Act1948 enabled a declaration for the resumption of citizenship to be made where citizenship had been lost under s 20 of that Act. This latter provision applied to naturalized and registered persons who have resided outside Australia (which included the then Territory of Papua) and New Guinea for a continuous period of seven years. This latter provision could have no application to Ms Avi as she was neither a naturalized or registered person.
15. Section 23AA of the Australian Citizenship Act1948 applied where an applicant had done a voluntary and formal act, other than marriage, by virtue of which he or she acquired the nationality or citizenship of a country other than Australia (s 23AA(1)(a)(i)) or done any act or thing to acquire the citizenship of another country (s 23AA(1)(a)(ii). There is no evidence before me that Ms Avi did any such acts or things that are referred to in s 23AA. I am satisfied that s 23AA of the Australian Citizenship Act1948 had no application to Ms Avi.
16. Section 23AB of the Australian Citizenship Act1948 enabled a declaration for the resumption of citizenship to be made where a person had ceased to be an Australian citizen under s 18. This latter provision applied where an adult person (of the age of twenty-one years) had made a declaration renouncing his Australian citizenship. I am satisfied that this latter provision could have no application to Ms Avi
17. Section 23B of the Australian Citizenship Act1948 applied where a person by reason of s 23 of that Act had ceased to be an Australian citizen. This latter provision applied where a responsible parent of a child ceased to be an Australian citizen under s 18 or s 19 of that Act. I am satisfied that neither s 18 (which refers to where an adult person (of the age of twenty-one years) had made a declaration renouncing his Australian citizenship) or s 19 (which refers to a loss of citizenship by service in the armed forces of an enemy country) have any application at all to a parent of Ms Avi.
18. Even though the abovementioned provisions of the Australian Citizenship Act1948 (that is ss 23A, 23AA, 23AB, 23B) are no longer in force, in my view they never had any application to Ms Avi. This is why I am satisfied that Ms Avi has not been prejudiced by her declaration not having been considered under the Australian Citizenship Act1948.
19. The Australian Citizenship (Transitional and Consequential) Act 2007 provides, in Schedule 3, for declarations made under s 23AA and s 23B of the old Act to be taken to be an application under the Australian Citizenship Act 2007. In any event, any application could now only be dealt with under the Australian Citizenship Act 2007 as the Australian Citizenship Act 1948 has been repealed: see Australian Citizenship (Transitional and Consequential) Act 2007, s 42.
20. I consider that the delegate of the Minister was correct in declining the application of Ms Avi under s 29 of the Australian Citizenship Act 2007. Ms Avi does not qualify under s 29 as she did not cease to be an Australian citizen under the various provisions of the old Act which are referred to in s 29(3) of the Australian Citizenship Act 2007.
21. Ms Avi also relies upon s 21(7) of the Australian Citizenship Act 2007. In my view, her application cannot succeed under that provision as a parent of the applicant had to be born in “Australia” as defined by the Australian Citizenship Act 2007: see s 21(7)((b). In s 3 of the Australian Citizenship Act 2007, “Australia” is defined to include the external Territories. At the time of the commencement of the Australian Citizenship Act 2007, Papua had long ceased to be a Territory of Australia. I am satisfied that s 21(7) of the Australian Citizenship Act 2007 has no application in the case of Ms Avi.
CONCLUSION
22. Ms Avi ceased to be an Australian citizen on Independence Day. She lost her “Australian citizenship by operation of law resulting from the effects of State succession”.[8] I am of the opinion that Ms Avi does not qualify for Australian citizenship under ss 21(7) and 29 of the Australian Citizenship Act 2007.
[8] Cf., Re Gaigo and Minister for Immigration and Citizenship [2008] AATA 590 at [15] (Hon Dr B H McPherson CBE, Deputy President).
DECISION
23. I affirm the decision under review.
I certify that the 23 preceding paragraphs are a true copy of the reasons for the decision herein of Dr P McDermott, RFD, Senior Member
Signed:..................[Sgd]............................................................
Elizabeth Young, Research AssociateHearing on the Papers 17 September 2008
Date of Decision 6 November 2008
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