DUAYNE BRAY and MINISTER FOR IMMIGRATION AND CITIZENSHIP

[2009] AATA 876

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2009] AATA 876

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No 2009/2209

GENERAL ADMINISTRATIVE DIVISION		)
Re		DUAYNE BRAY

Applicant

And MINISTER FOR IMMIGRATION AND CITIZENSHIP

Respondent

DECISION

Tribunal Dr P McDermott, RFD, Senior Member

Date13 November 2009

PlaceBrisbane

Decision The Tribunal affirms the decision under review.

.............[Sgd]...........................

Senior Member

CATCHWORDS

CITIZENSHIP – by descent – neither parent born in “Australia” as defined by the Act at the time the application was made – decision affirmed.

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

Re Gaigo and Minister for Immigration and Citizenship [2008] AATA 590

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

Australian Citizenship Act 1948 s 5

Australian Citizenship Act 2007 s21(7)

Constitution of the Independent State of Papua New Guinea, s 65

Papua New Guinea Independence (Australian Citizenship) Regulations 1975 reg 4

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

REASONS FOR DECISION

13 November 2009 Dr P McDermott, RFD, Senior Member  

INTRODUCTION

1.      The Applicant, Mr Duayne Bray, who has previously held Australian citizenship, has made an application to become an Australian citizen again.  On 24 October 2008, Mr Bray was advised that his application was refused by a delegate of the Minister.  Mr Bray 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.  This procedure is appropriate in circumstances such as this where there is no dispute of the facts which are the basis of an application.

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 Bray was born in January 1975[2] in the then Territory of Papua. Mr Bray became an Australian citizen by birth. This is because s 10(1) of the then 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 Bray.

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

5. It is not in issue that when Mr Bray was born the Territory of Papua was then part of Australia. At the time of his birth the term “Australia” was defined in s 5 of the Australian Citizenship Act 1948 (as inserted by the Nationality and Citizenship Act 1953) as follows: “‘Australia’ includes the Territories of the Commonwealth that are not trust territories”.

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 Bray had four grandparents who were born in the then Territory of Papua.  These four grandparents are listed in para 31 of Mr Bray’s application for evidence of Australian citizenship (T12, fol 54).

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 Bray.  There is no evidence that Mr Bray 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 Bray 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 also by the fact that he has two grandparents who were born in that country.

CESSATION OF AUSTRALIAN CITIZENSHIP

10.     While Mr Bray 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 Bray 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.

11.     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

12.     Prior to Independence Day, Mr Bray 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 Bray 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.

13.     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 prior to Independence Day when Mr Bray lost 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.

14.     The fact that Mr Bray was on Independence Day under the age of 19 years raises for consideration 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 Bray had no such right of permanent residence and accordingly regulation 2 has no application.

AUSTRALIAN CITIZENSHIP ACTS

15.     On 21 April 2008, Mr Bray lodged an application for Australian citizenship by descent.

16.     I consider that the delegate of the Minister was correct in declining the application of Mr Bray under s 21(7) of the Australian Citizenship Act 2007.

17.     That section provides that:

21(7)A person is eligible to become an Australian citizen if the Minister is satisfied that:

(a)  the person was born in Papua before 16 September 1975; and

(b)  a parent of the person was born in Australia (within the meaning of this Act at the time the person made the application); and

(c)  the parent was an Australian citizen at the time of the person's birth; and

(d)  the person is of good character at the time of the Minister's decision on the application.

18.     Clearly, the decision maker must be satisfied of all four requirements.

19.     I am satisfied that Mr Bray satisfies the requirements of s 21(7)(a) as he was born in Papua before 16 September 1975.

20.     Section 21(7)(b) requires that a parent of the person was born in Australia, within the meaning of the Australian Citizenship Act 2007 at the time the person made the application.  I have examined the birth certificate of Mr Bray’s father: that certificate states that the birthplace of that person was Papua.  I have also examined the certificate of marriage of Mr Bray’s parents which discloses that his mother was born in central Papua.  I am therefore satisfied, on the evidence before me, that both of Mr Bray’s parents were not born in Australia for the purposes of the Australian Citizenship Act 2007.  

21.     I now have to consider whether either of Mr Bray’s parents was born in “Australia” as defined by the Australian Citizenship Act 2007 as in force on 21 April 2008 (the date the application was made). Under s 3 of the Act, the term “Australia” is defined, when used in a geographical sense, to include the external Territories. Papua New Guinea ceased to be an external territory of Australia under s 4 of the Papua New Guinea Independence Act 1975 which provided for the withdrawal of Australian sovereignty over Papua New Guinea.  I have therefore come to the conclusion that neither of Mr Bray’s parents was born in “Australia” as defined by the Australian Citizenship Act 2007.

22.     Section 21(7)(c) requires the decision maker to be satisfied that a parent of the person was an Australian citizen at the time of the person’s birth.  I am satisfied that this requirement is met.

23.     Section 21(7)(d) further requires that the decision maker be satisfied that the person is of good character.  Mr Bray has provided a police clearance from the Royal Papua New Guinea Constabulary and I am satisfied that he is of good character.

DECISION

24.     I affirm the decision under review.

I certify that the 24 preceding paragraphs are a true copy of the reasons for the decision herein of Dr P McDermott, RFD, Senior Member

Signed: ...........[Sgd]..................................................................
             Melissa Hamblin, Associate

Hearing on the papers              3 November 2009
Date of Decision  13 November 2009