Brian and Minister for Immigration and Citizenship

[2008] AATA 995

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2008] AATA 995

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No 2007/3834

GENERAL ADMINISTRATIVE DIVISION		)
Re		JOHN BRIAN

Applicant

And MINISTER FOR IMMIGRATION AND CITIZENSHIP

Respondent

DECISION

Tribunal Dr P McDermott, RFD, Senior Member

Date6 November 2008

PlaceBrisbane

Decision The Tribunal sets aside the decision under review and remits the matter to the Minister for reconsideration in accordance with these reasons.

...................[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 – right of Papuan with Australian parent to apply for resumption of citizenship under the 2007 Act – decision under review set aside.

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 GuineaIndependence 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.      Mr John Brian, who has previously held Australian citizenship, has made an application to become an Australian citizen again.  On 12 July 2007, Mr Brian was advised that his application was refused by a delegate of the Minister.  Mr Brian 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 a case such as this application, 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.      Mr Brian was born in 1962[2] in the then Territory of Papua. Mr Brian 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 Mr Brian.

[2] To protect the privacy of Mr Brian in these reasons I do not mention his actual date of birth.

5. It is not in issue that when Mr Brian 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 (which was then the Nationality and Citizenship Act 1948). This definition in s 5 was omitted by the Nationality and Citizenship Act 1953 which inserted a new definition which provided that “‘Australia’ includes the Territories of the Commonwealth that are not trust territories”.  It is this latter definition that was in force when Mr Brian 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 had two grandparents who were born in the country or an adjacent area gained automatic citizenship of the new State of Papua New Guinea.  The material before me discloses (and I so find) that Mr Brian has two maternal grandparents who were born in the then Territory of Papua, namely Guba Hanua and Kari Udu.

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 s 65(4) of the Constitution of the Independent State of Papua New Guinea had no application to Mr Brian.  There is no evidence that Mr Brian then had a right of permanent residence in Australia under the Migration Act 1958. He 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. He was also not a person who was then 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 his case by the operation of s 65(4) of the Constitution.

9.      I find that Mr Brian became a citizen of the Independent State of Papua New Guinea on Independence Day by the operation of s 65(1) of the Constitution of the Independent State of Papua New Guinea.  He satisfies the requirements for the operation of s 65(1) by being born in the Independent State of Papua New Guinea before Independence Day and by the fact that he has two grandparents who were born in that country.

CESSATION OF AUSTRALIAN CITIZENSHIP

10.     While Mr Brian became a citizen of the Independent State of Papua New Guinea on Independence Day, on that day he also ceased by operation of law to be an Australian citizen.  This cessation of Australian citizenship occurred by virtue of the operation of regulation 4 of the Papua New Guinea Independence (Australian Citizenship) Regulations 1975.  This regulation applies to Mr Brian 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, Mr Brian 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 Mr Brian 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 Mr Brian last held Australian citizenship, that citizenship did not give him 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.

13.     The fact that Mr Brian was on Independence Day under the age of 19 years was relied upon as grounds for the application of regulation 2 of the Papua New Guinea Independence (Australian Citizenship of Young Persons) Regulations 1980.  However, that regulation only has application to a young person who on Independence Day had a right of permanent residence in Australia.  Mr Brian had no such right of permanent residence and accordingly regulation 2 has no application.

AUSTRALIAN CITIZENSHIP ACTS

14. On 12 September 2006, Mr Brian 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.  Mr Brian is concerned that his declaration was not considered under the Australian Citizenship Act 1948 (which in his submission is referred to as the old Act).  However, I am satisfied that Mr Brian was not disadvantaged as his case did not come within the ambit of the old Act.

15. Mr Brian has relied upon s 23AA and s 23B of the Australian Citizenship Act1948.

16. I am satisfied that s 23AA of the Australian Citizenship Act1948 had no application to Mr Brian. This provision applied where an applicant had done a voluntary and formal act, other than marriage, by virtue of which he 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 Mr Brian did any such acts or things that are referred to in s 23AA.

17. I am also satisfied that s 23B of the Australian Citizenship Act1948 had no application to Mr Brian.  This provision 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 Mr Brian.

18. The declaration made by Mr Brian also made reference to s 23A and s 23AB of the Australian Citizenship Act1948.  For the sake of completeness, I should mention that I am satisfied that neither of those provisions had any application to Mr Brian. 

19. Section 23A of the Australian Citizenship Act 1948 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 had no application to Mr Brian who, in any event, was neither a naturalized or registered person.

20. Section 23AB of the Australian Citizenship Act 1948 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 mention again that this latter provision had no application to Mr Brian who was a minor when he lost his Australian citizenship by operation of law.

21.     Even though the abovementioned provisions of the Australian Citizenship Act1948 are no longer in force, in my view they had no application to Mr Brian.  This is why I am satisfied that Mr Brian has not been prejudiced by his declaration not having been considered under the Australian Citizenship Act1948.

22.     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.

23.     I consider that the delegate of the Minister was correct in declining the application of Mr Brian under s 29 of the Australian Citizenship Act 2007.  Mr Brian does not qualify under s 29 as he 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.

24.     The submission from the Minister quite properly adverted Mr Brian to the possible application of s 21(7) of the Australian Citizenship Act 2007.  I am satisfied that Mr Brian satisfies the requirements of s 21(7)(a) as he was born in Papua before 16 September 1975.  In order to qualify under s 21(7), a parent of the applicant had to be born in “Australia” as defined by the Australian Citizenship Act 2007: see s 21(7)((b).  At the time when the delegate considered the declaration of Mr Brian, there was no documentary evidence before the delegate that a parent of Mr Brian was born in Australia.  However, a copy of the birth certificate of the father of Mr Brian has now been filed in this Tribunal.  His father was born on mainland Australia.  There are other requirements in s 21(7) that also need to be satisfied.  One requirement is that his father was an Australian citizen at the time of Mr Brian’s birth (s 21(7)(c)).  Another requirement is that the person was of good character at the time of the Minister’s decision (s 21(7)(d)): in respect of that latter requirement, Mr Brian has provided a police clearance.

25.     In the circumstances, I consider that it is appropriate that I make an order to remit this matter back to the Minister for reconsideration to enable Mr Brian to comply with any necessary formal requirement and so that the Minister can consider all the requirements of s 21(7) of the Australian Citizenship Act 2007.

26.     I again make the observation that Mr Brian has not been prejudiced by his declaration not having been considered under the Australian Citizenship Act1948.  Indeed, the Australian Citizenship Act 2007 has conferred a right of application on Mr Brian, a Papuan with an Australian parent, which did not previously exist under the Australian Citizenship Act 1948.

DECISION

27.     I set aside the decision under review and remit the matter to the Minister for reconsideration in accordance with these reasons.

I certify that the 27 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 Associate

Hearing on the Papers              17 September 2008
Date of Decision  6 November 2008