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.

............................Sgd.........................................

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 someone who:

   (

   a)       has a right (whether revocable or not) to permanent residence in Australia; or

   
   

   (b)       is a naturalized Australian citizen; or

   
   

   (c) is registered as an Australian citizen under Section 11 of the Australian Citizenship Act 1948-1975 of Australia; or

   
   

   (d)       is a citizen of a country other than Australia,

6. On Independence Day s 65(4) of the Constitution of the Independent State of Papua New Guinea had no application. There is no evidence that the applicant then had a right of permanent residence in Australia under the Migration Act 1958 (Cth). She was not then a naturalised Australian citizen or a person who was registered as an Australian citizen under s 11 of the Australian Citizenship Act1948 (Cth). 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 of the Independent State of Papua New Guinea has not been excluded by the operation of s 65(4) of that Constitution.

7. I find that the applicant 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.

8. I accept that the applicant has never made a declaration of loyalty to Papua New Guinea. The procedure of making a renunciation of citizenship and a Declaration of Loyalty was prescribed by s 65(2) of the Constitution of the Independent State of Papua New Guinea and is applicable to a case where a person was making a renunciation of citizenship; this is not the case here.

   CESSATION OF AUSTRALIAN CITIZENSHIP

9. When the applicant became a citizen of the Independent State of Papua New Guinea on Independence 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 reg 4 of the Papua New Guinea Independence (Australian Citizenship) Regulations 1975 (Cth). This regulation applies to the applicant because immediately before Independence Day she was an Australian citizen, but, on that day, she 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.[1]

   [1] (2005) 222 CLR 439.

   RIGHT OF PERMANENT RESIDENCE

10. The Federal Court of Australia has held in Minister for Immigration and Multicultural and Indigenous Affairs v Walsh[2]  that prior to Independence Day, the applicant would have required a permanent or temporary entry permit under the Migration Act 1958 (Cth) to enter the mainland of Australia. There is no evidence that prior to Independence Day the applicant had a right of permanent residence.

    [2] (2002) 125 FCR 31 at [35]-[36].

11. The applicant has placed reliance on policy documents which provided that prior to Independence Day the right of automatic residence in mainland Australia was automatic for children born in Papua of non-indigenous descent. However, the Federal Court of Australia in Minister for Immigration and Multicultural and Indigenous Affairs v Walsh[3] has held that such policy documents are merely a statement of usual administrative practice and do not have the force of law.

    [3] (2002) 125 FCR 31 at 37.

12. In Re Minister for Immigration and Multicultural and Indigenous Affairs; ex Parte Ame[4]  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.

    [4] (2005) 222 CLR 439.

    PAPUA NEW GUINEA INDEPENDENCE (AUSTRALIAN CITIZENSHIP OF YOUNG PERSONS) REGULATIONS 1980 (CTH)

13. On Independence Day, the applicant was under the age of 19 years. This raises for consideration the application of reg 2 of the Papua New Guinea Independence (Australian Citizenship of Young Persons) Regulations 1980 (Cth), which was relied upon by the applicant. In Minister for Immigration and Multicultural and Indigenous Affairs v Walsh[5] it was held that reg 2 only has application to a young person who, on Independence Day, had a right of permanent residence in Australia.

    [5] (2002) 125 FCR 31 at 39.

14. I have earlier mentioned that prior to Independence Day, the applicant would have required a permanent or temporary entry permit under the Migration Act 1958 (Cth) to enter the mainland of Australia. There is no evidence that the applicant had such a right of residence in Australia at that time.

15. I have already mentioned that the High Court of Australia has rejected the proposition that an Australian citizen has a right to permanent residency as a matter of constitutional principle. This has the consequence that on Independence Day, when the applicant last held Australian citizenship, that citizenship did not give her the right to enter the Australian mainland without a permit.

16. As the applicant did not on Independence Day have a right of permanent residence in Australia, reg 2 of the Papua New Guinea Independence (Australian Citizenship of Young Persons) Regulations 1980 (Cth) has no application to this case.

    RESUMPTION OF CITIZENSHIP

17. It is by the operation of the Australian Citizenship Act 2007 (Cth) (“the 2007 Citizenship Act”) that this application falls to be determined.

18. On 17 September 2012, the applicant made an application to resume her Australian citizenship. This application was made under s 29 of the 2007 Citizenship Act.

19. Having regard to the operation of s 30(1A) of the 2007 Citizenship Act, in order for the applicant to succeed in an application under s 29 of the 2007 Citizenship Act, she must have lost her citizenship on the grounds stated in s 29(2) or s 29(3) of the
    2007 Citizenship Act.

20. There is no evidence that the applicant lost her citizenship under the grounds set out in
    s 29(2) of the 2007 Citizenship Act. This provision concerns the loss of citizenship under either s 33 or s 36 of the 2007 Citizenship Act. The applicant did not lose her citizenship under the 2007 Citizenship Act. She lost her citizenship on Independence Day some decades before the passage of the 2007 Citizenship Act.

21. The applicant does not come within the ambit of s 29(3)(a) of the 2007 Citizenship Act. This provision concerns the loss of citizenship under various provisions (ss 17, 18, 20 and 23) of the Australian Citizenship Act 1948 (Cth) (“the 1948 Citizenship Act”) which, in my view, have no application. The 1948 Citizenship Act is referred to in s 29(3) of the 2007 Citizenship Act as the “old Act” (see the definition of “old Act” in s 3 of the
    2007 Citizenship Act).

22. The applicant did not lose her Australian citizenship under either ss 17, 18, 20 or 23 of the 1948 Citizenship Act. She lost her Australian citizenship by the operation of reg 4 of the Papua New Guinea Independence (Australian Citizenship) Regulations 1975 (Cth). At that time, s 17 of the 1948 Citizenship Act only had application to the loss of citizenship by an Australian citizen of “full age and capacity”: this provision could have no application to the applicant who was then still only a child. Section 18 of the
    1948 Citizenship Act also, in my view, has no application to this case as that provision refers to the loss of citizenship by a person who, after attaining the age of 18 years, made a declaration renouncing his or her Australian citizenship: the applicant, who lost her Australian citizenship before she attained the age of 18 years, made no such declaration. Section 20 of the 1948 Citizenship Act could have no application to the applicant as this provision was repealed by the Nationality and Citizenship Act 1958 before the applicant was born. Section 23 of the 1948 Citizenship Act also can have no application to the applicant as the provision only applies where the responsible parent of a child ceases to be a citizen under ss 17, 18 or 19 of that Act: this is not the case here.

23. As the applicant is unable to satisfy either s 29(2) or s 29(3) of the 2007 Citizenship Act, her application cannot succeed.

24. I have earlier mentioned that reg 2 of the Papua New Guinea Independence (Australian Citizenship of Young Persons) Regulations 1980 (Cth) has no application to this case. Even if that regulation did apply (which in my view is not the case) the Minister could not approve a person becoming an Australian citizen again without having regard to

    
    

    s 30(1A) of the 2007 Citizenship Act which provides that the Minister must not approve the person becoming an Australian citizen again unless that person is eligible to become an Australian citizen again under s 29(2) or s 29(3) of that Act. I have earlier ruled that the applicant is not eligible to become an Australian citizen again under either s 29(2) or s 29(3) of that Act.

25. For the sake of completeness I should refer to s 21(7) of the 2007 Citizenship Act which enables certain persons who were born in Papua before Independence Day to become Australian citizens. However, to qualify under that provision an applicant must have a parent who is born in Australia (within the meaning of the 2007 Citizenship Act at the time the person made the application). Whilst there is no issue that the father of the applicant was an Australian citizen, he was not born in Australia as defined by s 3 of the 2007 Citizenship Act. This is because Papua had ceased to be a Territory some decades before the passage of the 2007 Citizenship Act.

    CONCLUSION

26. The applicant does not qualify for the resumption of Australian citizenship.

    DECISION

27. I affirm the decision under review.

I certify that the preceding 27 (twenty-seven) paragraphs are a true copy of the reasons for the decision herein of Dr P McDermott RFD, Senior Member

...........................Sgd........................................

Associate

Dated 2 July 2014

Date of hearing	13 June 2014
Applicant	In person
Solicitors for the Respondent	Ms Amanda Graham, Clayton Utz