Cheryl Tongia and Minister for Immigration and Border Protection

[2014] AATA 435

[2014] AATA 435

Division	GENERAL ADMINISTRATIVE DIVISION
File Number	2013/6333
Re	Cheryl Tongia
APPLICANT
And	Minister for Immigration and Border Protection
RESPONDENT

DECISION

Tribunal	Dr P McDermott RFD, Senior Member
Date	2 July 2014
Place	Brisbane

The Tribunal affirms the decision under review.

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Dr P McDermott RFD, Senior Member

CATCHWORDS

CITIZENSHIP – Constitution of the Independent State of Papua New Guinea – Independence Day and automatic citizenship – Cessation of Australian citizenship – Application for resumption of Australian citizenship – Cessation outside legislative scope – Applicant ineligible for resumption – Decision affirmed.

LEGISLATION

Constitution of the Independent State of Papua New Guinea s 65
Australian Citizenship Act 1948 (Cth) ss 5, 10, 11, 17, 18, 20, 23
Australian Citizenship Act 2007 (Cth) ss 3, 21, 29, 30(1A), 33, 36
Migration Act 1958 (Cth)
Nationality and Citizenship Act 1955 (Cth)
Papua New Guinea Independence (Australian Citizenship) Regulations 1975 (Cth) reg 4

Papua New Guinea Independence (Australian Citizenship of Young Persons) Regulations 1980 (Cth) reg 2

CASES

Re Minister for Immigration and Multicultural and Indigenous Affairs; ex Parte Ame (2005) 222 CLR 439

Minister for Immigration and Multicultural and Indigenous Affairs v Walsh (2002) 125 FCR 31

REASONS FOR DECISION

Dr P McDermott RFD, Senior Member

2 July 2014

INTRODUCTION

1. Cheryl Tongia (the applicant), has previously held Australian citizenship, and has made an application to become an Australian citizen again. On 18 November 2013, the applicant was advised that her application was refused by a delegate of the Minister for Immigration and Border Protection. The applicant now seeks a review of that decision by this Tribunal. I thank the applicant for her courtesy to this Tribunal by attending the hearing of this application.

   AUSTRALIAN CITIZENSHIP OF APPLICANT AT BIRTH

2. In 1966 the applicant was born in Port Moresby in what was then the Territory of Papua. Upon her birth she became an Australian citizen because s 10(1) of the
   Australian Citizenship Act 1948 (Cth) provided that a person born in Australia after the commencement of that Act became an Australian citizen by birth. When she was born, the Territory of Papua was part of Australia. This is because s 5 of the
   Australian Citizenship Act 1948 (Cth) then provided that “‘Australia’ includes the Territories of the Commonwealth that are not trust territories”. Papua was not a trust territory.

3. The exceptions in s 10(2) of that Act have no application to the applicant.

   EFFECT OF INDEPENDENCE

4. The Constitution of the Independent State of Papua New Guinea, in s 65(1), provides that a person born in the country before Independence Day (16 September 1975) who had two grandparents who were born in the country or an adjacent area gained automatic citizenship of the new State of Papua New Guinea. The applicant has confirmed that she has at least two grandparents who were born in the country.

5. Section 65(1) of the Constitution of the Independent State of Papua New Guinea, is, by
   s 65(4) of that Constitution, expressed not to apply to…