Fabila and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Citizenship) - [2022] AATA 1368

Fabila and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Citizenship) [2022] AATA 1368 (27 May 2022)
Division:GENERAL DIVISION
File Number: 2021/3933
Re:Edwina Fabila
APPLICANT

AndMinister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
RESPONDENT

DECISION
Tribunal:Deputy President J Sosso
Date:27 May 2022
Place:Brisbane

The decision under review is affirmed.
..................[SGD]......................................................
Deputy President J Sosso
CATCHWORDS
CITIZENSHIP – Australian citizenship – Applicant seeks citizenship by descent – Applicant is citizen of Papua New Guinea – constitutional history of Papua New Guinea – claim that parent was Australian citizen by virtue of being born in Territory of Papua – Papua New Guinea independence – cessation of Australian citizenship – delegate refuses application on basis not satisfied a parent was Australian citizen at time of Applicant’s birth – whether any of the exceptions in s 65 of the Papua New Guinea Constitution applied – whether Applicant’s great grandfather obtained and retained Filipino citizenship – decision under review affirmed
LEGISLATION
Acts Interpretation Act 1901 (Cth)
Australian Citizenship Act 1948 (Cth)
Australian Citizenship Act 2007 (Cth)
British Settlements Act 1887 (Imp)
Commonwealth Act No. 63 1936 (PH)
Commonwealth Constitution (Cth)
Constitution of the Independent State of Papua New Guinea 1975 (PNG)
Constitution of the Philippines 1935 (PH)
Constitution of the Philippines 1943 (PH)
Constitution of the Republic of the Philippines 1973 (PH)
Migration Act 1958 (Cth)
Nationality and Citizenship Act 1948 (Cth)
New Guinea Act 1920 (Cth)

Papua Act 1905 (Cth)
Papua New Guinea Independence (Australian Citizenship of Young Persons) Regulations 1980 (Cth)
Papua New Guinea Independence Act 1975 (Cth)
Papua New Guinea Independence (Australian Citizenship) Regulations 1975 (Cth)
Papua-New Guinea Provisional Administration Act 1945 (Cth)
Philippine Autonomy Act 1916 (US)
Philippine Independence Act 1934 (US)
Philippine Organic Act 1902 (US)
CASES
Air Caledonie International v The Commonwealth (1988) 165 CLR 462
Benito Munoz v The Collector of Customs 20 Phil 494
Korokan and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] AATA 198
Lorenzo vs. Collector of Customs 15 Phil. Rep., 559
Minister for Immigration and Multicultural Affairs and Indigenous Affairs v Walsh (2002) 125 FCR 31
Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Ame (2005) 222 CLR 439
Strachan v Commonwealth (1906) 4 CLR 455
United States vs. Go Siaco 12 Phil. Rep., 490
SECONDARY MATERIALS
Alfredo Hernandez, ‘The ‘lost’ Filipino descendants’ (Undated)
REASONS FOR DECISION
Deputy President J Sosso
27 May 2022
INTRODUCTION
Background

Ms Edwina Grace Fabila (the Applicant) seeks review of a decision of a delegate of the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (the Minister) of 18 May 2021 to refuse to grant the Applicant citizenship by descent pursuant to s 17(1) of the Australian Citizenship Act 2007 (Cth) (the Act) – Exhibit 1 T11 pp. 77 – 95.
Subsection 16(2) of the Act provides that a person born outside of Australia on or after 26 January 1949 is eligible to become an Australian citizen if:
“(a) a parent of the person was an Australian citizen at the time of the birth…”
The Applicant was born in December 1983 in Lae, Morobe Province in Papua New Guinea – Exhibit 1 T5 p. 38.
The Applicant was issued a Papua New Guinean passport on 25 January 2013 which confirms she is a citizen of Papua New Guinea – Exhibit 1 T5 p. 33.
Records of the Department of Home Affairs (the Department) indicate that the Applicant first arrived in Australia on 21 September 2001 as the holder of a Tourist Visa and she subsequently has travelled to Australia on multiple occasions for temporary visits – Exhibit 1 T11 p. 83.
On 18 September 2020, the Applicant lodged an application for Australian citizenship by descent (Form 118) – Exhibit 1 T4 pp. 15 – 25. In that Form, the Applicant claimed that her biological father, Mr Emmanuel Rafael Fabila (Emmanuel), who was born in September 1960 in Mendi, Southern Highlands, Papua, was an Australian citizen at the time of her birth. The Applicant also claimed that her father retained his Australian citizenship on 16 September 1975 – Exhibit 1 T4 p. 17.
Legal and constitutional developments prior to Papua New Guinea independence
Having regard to the nature of the Applicant’s submissions, it is necessary to set out her family tree. Before doing so, it is desirable to briefly set out the constitutional development of Papua New Guinea. The Tribunal is indebted to Senior Member Morris who, in the recent determination of Korokan and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] AATA 198, discussed this area of the law: see [53] – [59].
In 1883, the Colony of Queensland annexed the south-eastern quarter of the island of New Guinea. This unilateral annexation was not initially recognised by the Imperial Government, but in 1884, the Imperial Government declared a protectorate over this area, then known as British New Guinea. In 1888, British New Guinea was placed under the administration of the Colony of Queensland by the British Settlements Act 1887 (Imp).
Subsequent to Federation, Letters Patent were issued for the purposes of s 122 of the Commonwealth Constitution. Section 122 provides as follows:
“The Parliament may make laws for the government of any territory surrendered by any State to and accepted by the Commonwealth, or of any territory placed by the Queen under the authority of and accepted by the Commonwealth, or otherwise acquired by the Commonwealth, and may allow the representation of such territory in either House of the Parliament to the extent and on the terms which it thinks fit.”
It will be seen that s 122 prescribes two methods by which the Commonwealth of Australia may acquire territory. The second method is by a Territory being placed by the Monarch under the authority of the Commonwealth, and subsequently being accepted by the Commonwealth. This is what happened with both Papua and Norfolk Island – Strachan v Commonwealth (1906) 4 CLR 455.
On 16 March 1906, pursuant to the Papua Act 1905 (Cth), Papua became an Australian Territory. It was administered under this Act until the Japanese invasion of the island of New Guinea in 1942 and, after the Second World War, civil administration was restored under the Papua-New Guinea Provisional Administration Act 1945 (Cth).
The north-eastern quarter of the island of New Guinea, together with outlying islands including New Britain, New Ireland, Manus, Buka and Bougainville were initially German colonies. In September 1914, the German colonies came under the control of Australia, and remained so until 1920, when the League of Nations conferred upon Australia a Mandate for its governance. The Commonwealth Parliament enacted the New Guinea Act 1920 (Cth) which formally accepted the Mandate. This legislation commenced on 9 May 1921.
Accordingly, the Territories of Papua and New Guinea were administered under different underpinning constitutional regimes.
Australian citizenship was first given statutory form by means of the Nationality and Citizenship Act 1948 (Cth) (the 1948 Act). Prior to this statute, persons residing in Australia were classified as either British subjects permanently residing in Australia, British subjects temporarily in Australia, and those who were not British subjects and “aliens”.
The 1948 Act (subsequently renamed in 1973 as the Australian Citizenship Act 1948 (Cth)) initially ensured that Australian citizens remained British subjects. The primacy of Australian citizenship was only recognised in 1969, and it was not until 1987 that Australians became simply citizens of Australia. The concept of being a British subject was finally abandoned.
Section 5 of the 1948 Act defined Australia to include Norfolk Island and the Territory of Papua. Persons born in Papua after 26 January 1949 acquired Australian citizenship by birth and those born in Papua prior to 26 January 1949 automatically became Australian citizens from that date.
Despite this, the conferral of Australian citizenship on persons born in Papua was subject to restrictions contained in the Migration Act 1958 (Cth). Under the Migration Act 1958 (Cth), a Papuan required an entry permit to enter or reside in any of the Australian States or internal Territories. A Papuan did not have an automatic right of entry or residence in mainland Australia – Respondent’s Updated Statement of Facts, Issues and Contentions (RUSFIC) p. 4 para 19.
Papua New Guinea independence
As a result of the Papua New Guinea Independence Act 1975 (Cth), Papua New Guinea became an independent sovereign state on 16 September 1975 (Independence Day). The Constitution of the Independent State of Papua New Guinea 1975 (PNG) (the Papua New Guinea Constitution) came into effect on Independence Day.
Part IV of the Papua New Guinea Constitution deals with citizenship. Outlined below are the relevant provisions for this matter:
“PART IV. — CITIZENSHIP.

Division 1. — Introductory.
64. Dual citizenship.
(1) Notwithstanding the succeeding provisions of this Part but subject to Subsection (2), no person who has a real foreign citizenship may be or become a citizen, and the provisions of this Part shall be read subject to that prohibition.
(2) Subsection (1) does not apply to a person who has not yet reached the age of 19 years, provided that, before he reaches that age and in such manner as is prescribed by or under an Act of the Parliament, he renounces his other citizenship and makes the Declaration of Loyalty.
(3) A person who has a real foreign citizenship and fails to comply with Subsection (2) ceases to be a citizen of Papua New Guinea when he reaches the age of 19 years.
(4)For the purposes of this section, a person who —
(a) was, immediately before Independence Day, an Australian citizen or an Australian Protected Person by virtue of —
(i)      birth in the former Territory of Papua; or
(ii) birth in the former Territory of New Guinea and registration under Section 11 of the Australian Citizenship Act 1948-1975 of Australia; and
(b) was never granted a right (whether revocable or not) to permanent residence in Australia, has no real foreign citizenship.
Division 2. — Acquisition of Citizenship.
65. Automatic citizenship on Independence Day.
(1) A person born in the country before Independence Day who has two grand-parents who were born in the country or an adjacent area is a citizen.
(2) A person born outside the country before Independence Day who has two grand-parents born in the country is a citizen as from Independence Day if —
(a) within one year after Independence Day or such longer period as the Minister responsible for citizenship matters allows in a particular case, application is made by him or on his behalf for registration as a citizen; and
(b) he renounces any other citizenship and makes the Declaration of Loyalty—
(i)      if he has not reached the age of 19 years — in accordance with Section 64(2) (dual citizenship); or
(ii)      if he has reached the age of 19 years — at or before the time when the application is made.
(3) In Subsection (1), ‘adjacent area’ means an area that immediately before Independence Day constituted —
(a) the Solomon Islands; or
(b) the Province of the Republic of Indonesia known as Irian Jaya; or
(c) the islands in Torres Straits annexed to the then Colony of Queensland under Letters Patent of the United Kingdom of Great Britain and Ireland bearing date the 10th day of October in the forty-second year of the reign of Her Majesty Queen Victoria (that is, 1878), not forming on Independence Day part of the area of Papua New Guinea.
(4) Subsections (1) and (2) do not apply to a person 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,
unless that person renounces his right to residence in Australia or his status as a citizen of Australia or of another country in accordance with Subsection (5).
(5) A person to whom Subsection (4) applies may, within the period of two months after Independence Day and in such manner as may be prescribed by or under an Act of the Parliament, renounce his right to permanent residence in Australia or his status as an Australian citizen or as a citizen of another country and make the Declaration of Loyalty.
(6) Where in his opinion it is just to do so, the Minister responsible for citizenship matters may in his deliberate judgement (but subject to Division 4 (Citizenship Advisory Committee)), extend the period of two months referred to in Subsection (4), but unless the Minister is satisfied that the applicant —
(a) assumed in error that he was a citizen; or
(b) did not know that he was not a citizen; or
(c) had no reasonable opportunity or not enough time to determine his status,
the period may not be extended beyond a further two months.”
It will be noted that s 65(1) provides that a person born in Papua New Guinea before Independence Day who has two grandparents born in the country or an adjacent area automatically became a citizen of Papua New Guinea.
Moreover, pursuant to s 65(5), a person who had a Right to Permanent Residence in Australia immediately prior to Independence Day could become a citizen of Papua New Guinea if that person renounced his or her Right to Permanent Residence in Australia and made a Declaration of Loyalty.
The citizenship regime prescribed in the Papua New Guinea Constitution was substantially mirrored in the domestic law of Australia.
Section 6 of the Papua New Guinea Independence Act 1975 (Cth) empowered the Governor-General to make regulations:
"... making provision for or in relation to matters arising out of or connected with the attainment of the independence of Papua New Guinea, including regulations making modifications or adaptations of any Act."
Regulation 4 of the Papua New Guinea Independence (Australian Citizenship) Regulations 1975 (Cth) (“the Independence Regulations”), made under s 6 of the Papua New Guinea Independence Act 1975 (Cth), provided as follows:
“4. A person who-
(a) immediately before Independence Day, was an Australian citizen within the meaning of the Act; and
(b) on Independence Day becomes 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,
ceases on that day to be an Australian citizen.”
The Full Federal Court (Heerey, Mansfield and Hely JJ) in Minister for Immigration and Multicultural Affairs and Indigenous Affairs v Walsh (2002) 125 FCR 31 (Walsh) made the following observations:
“The effect of reg 4, read with s 65 of the PNG Constitution, was to terminate the Australian citizenship of those born in Papua whose sole claim to Australian citizenship was their place of birth. It preserved the citizenship of those who had a further, or a different, connection with Australia (unless they renounced their citizenship).”
Persons aged under 19 on Independence Day
Special provisions were made for those persons under the age of 19 on Independence Day who had a Right to Permanent Residence in Australia.
Subsection 64(2) of the Papua New Guinea Constitution provides, in effect, that minors in this situation had a right to dual citizenship until they attained 19 years of age. If, by that time, a minor had not renounced their Australian citizenship and made a Declaration of Loyalty, then, pursuant to s 64(3), such a person “ceases to be a citizen of Papua New Guinea when he reaches the age of 19 years.”
The law in this area was helpfully explained by the Full Court in Walsh as follows:
31 Section 64 prohibits dual citizenship except in the case of infants until the age of 19, at which time they must elect whether or not to retain their citizenship. No person who has any other ‘real citizenship’ is entitled to become or remain a citizen of PNG. ‘Real’ citizenship is defined by subs (4) to exclude Australian citizens and Australian Protected Persons who have no permanent right to reside in Australia — thus making eligible for Papua New Guinea citizenship all those born in Papua New Guinea prior to Independence: see Goldring, p 206.
32 A person under the age of 19 years who had been granted a right to permanent residence in Australia would nonetheless (if otherwise qualified) become a citizen of PNG on Independence Day. Under the Constitution of PNG, such a person would be entitled to dual citizenship until he or she turned 19. However, under reg 4 of the Independence Regulations such a person ceased to be an Australian citizen on Independence Day.
33 This anomaly was addressed by the Papua New Guinea (Australian Citizenship of Young Persons) Regulations 1980 (Cth) which were gazetted on 25 September 1980, but which had retrospective effect to 16 September 1975. The Explanatory Statement issued in connection with the Regulations makes it plain that their purpose was to remove an anomaly arising from the difference between Australian and PNG legislation.
34 Regulation 2 provides as follows:
‘Re-acquisition of Australian citizenship lost by certain persons on Independence Day
A person who on Independence Day —
(a)     was under 19 years of age;
(b)     was not for the purposes of section 64 of the Constitution of the Independent State of Papua New Guinea a person who was never granted a right (whether revocable or not) to permanent residence in Australia; and
(c)     ceased to be an Australian citizen,
shall be deemed to have re-acquired his Australian citizenship on that day.’”
(emphasis in the original)
Applicant’s family tree – father, grandparents
The Applicant outlined, in an undated Statement, the outline of her immediate family tree, which is set out below – Exhibit 1 T5 pp. 45 – 46:
(a)the Applicant’s father, Emmanuel, was born in September 1960 in Mendi, Southern Highlands District, in the Territory of Papua – Exhibit 1 T5 p.39;
(b)he acquired Australian citizenship by virtue of s 10 of the 1948 Act;
(c)he has never signed a Declaration of Loyalty to Papua New Guinea;
(d)his father, Mr Ildephonse Fabila (Ildephonse), was born in May 1927 at Mou, Kairuku, Central District, Territory of Papua;
(e)Ildephonse was granted the Right to Permanent Residence in Australia on 14 September 1966;
(f)he renounced his Right to Permanent Residence in Australia and signed a Declaration of Loyalty to Papua New Guinea on 22 October 1975 – Exhibit 1 T5 p. 49;
(g)Emmanuel’s mother, Ms Margaret Pan Tung was born in October 1938 in Koukou, Central District, Territory of Papua; and
(h)she renounced her Right to Permanent Residence in Australia and signed a Declaration of Loyalty to Papua New Guinea on 23 June 1982.
The Applicant does not claim that her mother, who was born in April 1960 in Port Moresby, then Territory of Papua, was an Australian citizen at the time of her birth – Exhibit 1 T4 p. 18, T11 p. 85.
Delegate’s reasons
Having set out the legislative and family background, it is necessary to turn to the reasons given by the Delegate for refusing to grant the Applicant citizenship.
The Delegate made the following observations – Exhibit 1 T11 p. 86:
“A preliminary assessment of the claims determined that Emmanuel FABILA had indeed acquired Australian citizenship at birth... However, insufficient evidence had been provided with the application to substantiate the claim that Emmanuel retained his Australian citizenship at PNG Independence. There was no direct evidence that he was ever given right of permanent residence in Australia on Departmental record and any travel he had ever made to Australia was through grant of temporary visas, entering Australia using a PNG passport. The issuance of a PNG Passport seemed to suggest that your father had become a citizen of PNG at some point in time.
To this end, on 29 September 2020, the Department contacted you requesting specific evidence of your father’s Australian citizenship. On 23 October 2020, Mrs Glenyse MOREA replied to the email and provided further information including a statement that ‘On the 22 August 1966, the Applicant's father Mr Emmanuel Rafael Fabila and his siblings were granted their own right to Australian Citizenship by Naturalisation’ with documents purporting to support this statement.
The documents provided were evidence that:
·On … September 1960, Emmanuel Rafael FABILA was born in Mendi, Papua.
·In August 1966, Ildephonse FABILA had been approved for Right of Residence in Australia.
·In 1973, Pedro Joseph FABILA at the age of 16 and as the son of Mr Ildephonse FABILA, was individually recommended for Right of Residence in Australia.
However, no evidence was provided that any of the other family members, including de-facto wife Margaret PAN TUNG and her seven children (including your father) had been approved for or granted permanent residence.
In direct relation to Emmanuel Rafael’s right of residence, Mrs MOREA stated: ‘The rest of the children have not been mentioned as they were all minors under the age of 18 years old and did not have the knowledge at that time to make their own claims for Australian Citizenship through Naturalisation in their own rights’.
Mrs MOREA also suggested that ‘His mother…Ms Margaret Fabila (nee PangTung)…was also granted the Right to Permanent Residence in Australia, but we are unable to state the dates for this as we do not have the information on hand.’
As part of the assessment process, Departmental documentation and records related to the Australian citizenship status of your father Emmanuel Rafael FABILA and his family were researched. No evidence that Margaret FABILA nee PAN TUNG or her seven children were ever actually issued with a Letter of Authority for permanent residence in Australia was found. No record of application for Australian citizenship by naturalisation by any of the family members was found.
A PNG statutory declaration signed by Ildephonse FABILA on 25 April 2002 was located that formally confirms that while he was issued with a Letter of Authority, none of his dependents (including your father) were listed in it.”

The Delegate then undertook a comprehensive assessment of Emmanuel’s citizenship status. As part of this assessment, the Delegate set out the details of the parents of both Ildephonse and Margaret Pan Tung.
On the paternal side, the parents were – Exhibit 1 T11 p. 88:
·Marcello Fabila (Marcello), born in Antique Panay Island, the Philippines; and
·Anna Theresa Natera, born in Bakiko Central District, Papua.
On the maternal side, the parents were:
·Archie Pan Tung, born in Canton, Kwontoon, China; and
·Theresa Solien, born in Kanosia, Central District, Papua.
The Delegate noted that, having two grandparents born in Papua, Emmanuel satisfied the criteria set out in s 65(1) of the Papua New Guinea Constitution. However, the Delegate then referred to s 65(4)(a), which provides that ss 65(1) and (2) do not apply to a person who has a Right to Permanent Residence in Australia. Consequently, the Delegate had to determine if Emmanuel had a Right to Permanent Residence in Australia immediately prior to Independence Day – Exhibit 1 T11 pp. 88 – 91.
The Delegate noted that evidence of a Right to Permanent Residence in Australia at that time would usually have been – Exhibit 1 T11 p. 88:
·a permanent entry stamp to enter Australia in a passport or a Permit to enter Papua New Guinea booklet; or
·a letter of authority signed by the Comptroller of Customs setting out that the holder may reside in Australia on a permanent basis.
Records disclosed that both Ildephonse and Margaret Pan Tung applied for Permission to Enter Australia on 13 July 1964 – Exhibit 1 T11 p. 88.
Ildephonse’s application included his son, Henry Thomas William, born from his first marriage to Margaret Mary Baker, but none of his other children.
Margaret Pan Tung’s application, however, included all seven children born of her relationship with Ildephonse.
Ildephonse’s application (including that of his son Henry Thomas William) was approved by the then Minister – Exhibit 1 T11 p. 89. When approving the application, the Minister was provided the following Departmental advice:
“7.The application made by Mr. Fabila covers himself and his legitimate child, Henry Thomas William. He stated that he included the name of Henry in his application in order that the child may have the right of free entry should he so desire. The form merely states ‘desires right of residence in Australia’. We have been given to understand, however, that Mr. Fabila does not intend to migrate, but wishes to qualify for expatriate conditions in the Public Service. This is understandable with his family commitments.”
In short, Ildephonse’s application was made to enhance his employment conditions in Papua New Guinea, and not to migrate to Australia with his family. The Delegate subsequently pointed out that neither Ildephonse nor Margaret Pan Tung travelled to Australia prior to 16 September 1975 – Exhibit 1 T11 p. 91.
The Delegate then addressed the application of Margaret Pan Tung– Exhibit 1 T11 p. 89:
“…there is no information about the outcome of Margaret PAN TUNG’s application. A thorough search of Departmental records did not locate any evidence to suggest that Margaret PAN TUNG or any of her seven dependent children (including your father, Emmanuel Rafael FABILA) had been granted right of permanent residence in Australia.”
In addition, the Delegate noted that applicants for a Right to Permanent Residence in Australia, at that time, not only needed to meet health and character requirements, they also needed to meet “the normal migrant entry requirements”. The Delegate could find no evidence that either Margaret Pan Tung or her eldest child, Pedro Ildephonse Joseph Fabila, met those requirements and, as such, could not infer that they were granted the Right to Permanent Residence in Australia.
This conclusion was buttressed by a statutory declaration of Ildephonse deposed on 25 April 2002 wherein he stated – Exhibit 1 T11 p. 91:
“…I was solely issued with the letter of Authority to reside in Australia.
(c) All my dependants were excluded from that letter of authority.”
The Delegate concluded that, in the absence of direct evidence that Emmanuel was ever granted a Right to Permanent Residence in Australia prior to Independence Day, he did not satisfy s 65(4)(a) of the Papua New Guinea Constitution.
Next, the Delegate rejected a submission that Emmanuel and his siblings were granted their own right to Australian citizenship by naturalisation. It was pointed out that Emmanuel was already an Australian citizen by birth in Papua, and was not eligible for citizenship by naturalisation prior to Independence Day – Exhibit 1 T11 p. 92. He, therefore, did not satisfy s 65(4)(b) of the Papua New Guinea Constitution.
The Delegate also determined that Emmanuel did not satisfy s 65(4)(c) (registered as a citizen by descent), nor s 65(4)(d) (citizenship of a country other than Australia) – Exhibit 1 T11 p. 92.
In conclusion, the Delegate found that as none of the paragraphs under s 65(4) applied to Emmanuel, s 65(1) did not apply, and he automatically became a citizen of Papua New Guinea on 16 September 1975 – Exhibit 1 T11 p. 93.
The Delegate then turned to the effect of the Independence Regulations and the Papua New Guinea Independence (Australian Citizenship of Young Persons) Regulations 1980 (Cth) (the Young Persons Regulations).
Emmanuel was born in September 1960, and, accordingly, was under the age of 19 on Independence Day.
As noted above, the Independence Regulations had the effect of ceasing Australian citizenship to any person who, immediately before Independence Day, was an Australian citizen and, on Independence Day, became a citizen of Papua New Guinea.
However, regulation 2 of the Young Persons Regulations provides as follows:
“Re-acquistion of Australian citizenship lost by certain persons on Independence Day
2. A person who on Independence Day –
(a)was under 19 years of age;
(b)was not for the purposes of section 64 of the constitution of the Independent State of Papua New Guinea a person who was never granted a right (whether revocable or not) to permanent residence in Australia; and
(c)ceased to be an Australian citizen,
shall be deemed to have re-acquired his Australian citizenship on that day.”
(emphasis in the original)
The Delegate pointed out that Emmanuel executed a Renunciation of Right to Permanent Residence in Australia or of Foreign Citizenship on 22 October 1975 – Exhibit 1 T11 p. 93. Further, the Delegate noted that there was no evidence that Emmanuel held a Right to Permanent Residence in Australia immediately before Independence Day – Exhibit 1 T11 p. 94. Accordingly, the Delegate found that regulation 2 of the Young Persons Regulations did not apply to Emmanuel – Exhibit 1 T11 p. 94.
Finally, the Delegate found that, at the date of the Applicant’s birth, her father was not an Australian citizen, and that she did not satisfy s 16(2) of the Act.
ISSUES
The ultimate issue to be determined by the Tribunal is whether the Applicant’s father was an Australian citizen at the time of her birth, as required by s 16(2)(a) of the Act.
The Applicant confirmed, at the Hearing, that she was not claiming that her mother was an Australian citizen at the time of her birth – Transcript (Tr.) 7.4.2022 p. 5.
In answering this Question, the following preliminary Questions need to be addressed:
1)was Emmanuel an Australian citizen prior to Independence Day;
2)did he become a citizen of Papua New Guinea on Independence Day;
3)did he lose his Australian citizenship on Independence Day; and
4)if so, did he reacquire Australian citizenship prior to the Applicant’s birth in December 1983?
Whilst these matters were exhaustively dealt with by the Delegate, as summarised above, a further matter was raised by the Applicant prior to the Hearing and was the subject of extensive discussion at the Hearing. It was submitted that 65(4)(d) of the Papua New Guinea Constitution was enlivened. This paragraph relates to a person who was a citizen of a country other than Australia. It was submitted that Emmanuel retained his Australian citizenship after Independence Day because he held citizenship of the Philippines – Exhibit 3 (Statement of Response).
HEARING
A Hearing was convened in Brisbane on 7 April 2022.
The Applicant was assisted by Ms Glenyse Morea and the Minister was represented by Mr Samuel Cummings.
The Applicant participated by telephone from Port Moresby.
The only witness called by the Applicant was her father, Emmanuel.
CONTENTIONS
Was the Applicant’s father an Australian citizen prior to Independence Day?
It is not contested that Emmanuel was an Australian citizen prior to Independence Day – RUSFIC p. 7 para 37, Tr. 7.4.2022 p. 5
Did the Applicant’s father become a citizen of Papua New Guinea on Independence Day?
Subsection 65(1) of the Papua New Guinea Constitution provides that a person born in Papua New Guinea prior to Independence Day who had two grandparents born in Papua New Guinea or an adjacent area, automatically became a citizen of Papua New Guinea on Independence Day.
There was some confusion at the Hearing about the requirement of two grandparents born in Papua New Guinea. It is clear that in order for s 65(1) to be enlivened, a person must have two grandparents who were born in Papua New Guinea, irrespective of their racial background or any other consideration. Birth, alone, activates the operation of s 65(1), and this was helpfully explained by the High Court (Gleeson CJ, McHugh, Gummow, Hayne, Callinan and Heydon JJ) in R v Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Ame (2005) 222 CLR 439 (Ame) at 448 – 449/[9] –[13]:
“9.The Papua New Guinea Constitution was developed against an historical background of colonialism, ownership of land and business enterprises by people other than the indigenous inhabitants, and importation of foreign labour. The Constitutional Planning Committee attached high importance to the need to identify citizenship in a manner that affirmed the status of the indigenous inhabitants and related the concept of nationhood to citizenship. Chapter 4 of the Committee’s Final Report said:
‘2. Papua New Guinean citizens will have certain rights (and obligations) that will be theirs alone. Only Papua New Guinean citizens will have the right to vote at elections, or to stand, for local government bodies, provincial assemblies and the National Parliament. They will have the right to be appointed to posts in government and private enterprise for which they are otherwise qualified. They will be eligible for services and other benefits the government may provide — in health, education, and economic development. They will receive protection from the Papua New Guinea Government when they travel abroad on its passports. And, in turn, they will owe their country certain obligations — to pay taxes, to uphold its laws, and to serve it in peace and in war.
…
14.A weak citizenship law will help no one. It will not serve the interests of our indigenous people. It will not serve those of the foreigners among us, nor those of overseas investors.’
(Emphasis in original)
10. The Report saw dual citizenship as incompatible with a strong citizenship law. It said that people in all parts of the country had expressed opposition to the idea of dual citizenship. It went on:
‘84. Our country stands on the threshhold [sic] of independence. The Papua New Guinea citizenship law will form part of the foundations of our country’s freedom, independence and identity as a nation State. It is an essential part of those foundations because it States in law who the people are who belong to Papua New Guinea. These people will be the citizens of Papua New Guinea.
…
88. The people of Papua New Guinea have told us clearly and firmly that they do not believe that a person can be fully committed to more than one country. In making this point, they have frequently resorted to imagery; no man, it is said, can stand in more than one canoe.’
11. The Committee proposed three methods of acquisition of citizenship: automatic citizenship; citizenship by registration; and citizenship by naturalisation. The Report stated:
‘20. The vast majority of the inhabitants of Papua New Guinea will become citizens of Papua New Guinea as of right when our recommendations come into force. They will automatically become Papua New Guineans. They will not have to do anything in order to become citizens. They will simply be defined by law as citizens.
21. Any person who was born in Papua New Guinea before the citizenship law comes into force … shall be a citizen of Papua New Guinea if:
• he or she is not a ‘real’ citizen of a foreign country; and
• he or she has at least two indigenous grandparents.
22. For the purposes of this provision, persons who are Australian citizens by virtue only of their birth in Papua, and persons who are Australian Protected Persons, are regarded as holding no real foreign citizenship, provided that they have not been granted the right to reside in Australia.’
(Emphasis in original.)
12. The reason why persons who were Australian citizens by virtue only of their birth in Papua (persons such as the applicant and almost all other indigenous Papuans as at Independence Day) were regarded as holding no ‘real’ foreign citizenship appears from what has been noted above. Although technically Australian citizens, under the Migration Act that citizenship did not of its own force give them the right to enter, or remain in, mainland Australia. To have a right of residence in Australia, they needed to apply for, and be granted, such a right. Hence the reference to a grant of a right of residence.
13. The recommendations made by the Report were reflected in Pt IV of the Papua New Guinea Constitution. The provisions of direct relevance to the present case are ss 64 and 65…’
(emphasis in the original)
The material before the Tribunal convincingly demonstrates that Emmanuel had two grandparents who were born in Papua New Guinea: Anna Theresa Natera born in Bakkio Central District, Papua, and Theresa Solien born in Kanosia, Central District, Papua – Exhibit 1 T11 p. 88. It follows, therefore, that the Emmanuel, ostensibly, became a citizen of Papua New Guinea on Independence Day.
I say, ostensibly, because the deeming operation of s 65(1) is subject to the qualifications enumerated in s 65(4). It is, therefore, necessary to determine if any of the deemed qualifications in s 65(4) apply to the circumstances of the Emmanuel.
Right to Permanent Residence – s 65(4)(a)
As previously explained, whilst the Territory of Papua was legislatively deemed, for the purposes of the 1948 Act, to be part of Australia prior to Independence Day, citizenship by birth did not confer a Right of Entry into Australia. Entry into Australia was governed, inter alia, by the regime prescribed by the Migration Act 1958 (Cth). Under the Migration Act 1958 (Cth), Papua was not part of Australia, and entry into Australia by persons born in Papua required an entry permit or authority to travel to, enter, and remain in Australia.
The High Court in Ame specifically rejected a submission that a person born in Papua with Australian citizenship at birth carried, with that citizenship, an automatic Right to Permanent Residence in Australia – at 454 – 455/[22] – [23]:
“22. At the time, s 6(1) of the Migration Act provided that an immigrant who entered Australia without an entry permit was a prohibited immigrant. Such a person was liable to deportation under s 18. Sections 6 and 7 provided for the discretionary grant of entry permits, which might be temporary or permanent. A right of permanent residence (in practice, a right to re-enter Australia free of the constraints of s 6) could be acquired by a person who was granted a permanent entry permit (s 15). Before Independence Day, Papua was an external Territory of Australia. External Territories were excluded from the definition of Australia in s 17 of the Acts Interpretation Act 1901 (Cth). The Migration Act did not define Australia in any manner inconsistent with the definition in the Acts Interpretation Act. Section 5(4) of the Migration Act referred to persons who had left Australia but not ‘entered any country other than a Territory outside Australia’. That was consistent with an external Territory being outside Australia. The Migration Act defined ‘immigrant’ to include persons entering Australia for temporary or permanent purposes. The Act applied, and was administered on the basis that it applied, to persons entering mainland Australia from external Territories. As is evident from the Report of the Constitutional Planning Committee, that historical fact was known to the framers of the Papua New Guinea Constitution; it was, indeed, a fact of which they were acutely aware. It led them to describe their Australian citizenship as other than ‘real’. It was asserted that s 65 of the Papua New Guinea Constitution should be interpreted in the light of an understanding that ‘the applicant’s Australian citizenship at birth (and non-alien status) carried with it a right to permanent residence in Australia as a matter of both statutory construction and as a matter of constitutional principle’. In this connection reliance was placed upon a passage in the judgment of this Court in Air Caledonie International v The Commonwealth where reference was made, in a different context, to the right of an Australian citizen to enter the country being unqualified by any law. Clearly, that passage was not referring to the right of inhabitants of Papua to enter mainland Australia, which was qualified by the Migration Act. As has been observed, in construing s 65 what is important is the law as it was applied to the inhabitants of Papua, an application that is reflected in the language of ss 64 and 65. The understanding of Australian law reflected in ss 64 and 65 of the Papua New Guinea Constitution was not erroneous. When Australia acquired Papua as an external Territory, it was not obliged constitutionally to give inhabitants of that external Territory an unfettered right of entry into mainland Australia. To the contrary, the broad power conferred by s 122 of the Australian Constitution supported laws restricting such entry by those inhabitants. In any event, where the question is one of construing s 65 of the Papua New Guinea Constitution, the understanding of Australian law and practice clearly revealed in the text is what matters.
23. It is improbable in the extreme that it was the purpose of s 65 of the Papua New Guinea Constitution to exclude from citizenship of the new nation all indigenous Papuans living at Independence Day unless they took positive steps to renounce their Australian citizenship. The purpose was the opposite. Although indigenous Papuans were Australian citizens before Independence Day, they were treated by Australian law, and regarded by the framers of the Papua New Guinea Constitution as not having, on that account alone, a right to permanent residence in Australia. The right to permanent residence referred to in s 65(4)(a) is the same as the right referred to in s 64(4)(b), that is to say, the right which a small number of Papuans had received by grant, not a right which all Papuans had by virtue of birth in the Territory of Papua at a time when it was an external Territory of Australia. The construction which the applicant seeks to place on s 65 must be rejected. On Independence Day, the applicant became a citizen of Papua New Guinea by virtue of the Papua New Guinea Constitution. That Constitution was antagonistic to dual citizenship. In recognition of that policy of the new Independent State, Australia, by reg 4, withdrew the applicant’s Australian citizenship. That withdrawal was not arbitrary. It was consistent with the maintenance of proper relations with the new Independent State, and with the change that occurred in Australia’s relationship with the inhabitants of that State. It is necessary now to consider whether that regulation was valid.”
(citations omitted)

It is necessary, then, to determine if the Emmanuel acquired a Right to Permanent Residence in Australia.
First, it is not disputed that the Applicant’s paternal grandparents both applied for Right to Permanent Residence in Australia on 13 July 1964. In the case of the Applicant’s paternal grandfather, this application was limited to himself and his son from his first marriage. It is also not disputed that the Ildephonse’s application was granted – Exhibit 1 T7 p. 66.
The evidence before the Tribunal strongly suggests that the Applicant’s paternal grandmother’s application was not granted. The Department of Immigration’s Memorandum to the Minister of 22 August 1966 makes this very clear – Exhibit 1 T7 p. 65:
“12.If Fabila [Ildephonse] is to given right of entry to Australia it would be preferable also that we should make it contingent on his legal wife and son being found acceptable for the grant of such right for if the son obtains it and lives in Australia (as seems possible because of his education here) he may wish his mother to join him in this country.
…
14.I would suggest therefore that provided Fabila, his legal wife and legitimate son and de facto wife and seven children meet the normal medical requirements for entry to Australia, right of entry be accorded to Fabila and his son Henry Thomas William. It would be as well, however, because of the complications of this case, to inform Fabila only that his application for right of entry has been approved.”
A hand-written notation dated 23 August 1966 states “APPROVED”. It follows that only Ildephonse’s application was approved by the Minister.
The evidence before the Tribunal discloses that the only other family member to be granted a Right to Permanent Residence in Australia before Independence Day was the Applicant’s uncle, Mr Pedro Ildephonse Joseph Fabila – Exhibit 1 T7 p. 63.
This matter, however, was put beyond doubt at the Hearing when Emmanuel gave evidence. The following exchange occurred – Tr. 7.4.2022 p. 26:
“DEPUTY PRESIDENT: I will just turn in a minute to Ms Morea. I will just formally ask you, Mr Fabila, I just asked you prior to this, but we will put it on the record now. Did you ever obtain a right of permanent residence in Australia?---No.
Your father, Ildephonse…did obtain such a right?---Yes, he did….”
Earlier in the proceedings, and prior to taking the Affirmation, the following exchange occurred – Tr. 7.4.2022 p. 25:
“DEPUTY PRESIDENT: Let’s deal with the matter in two steps. The first question is whether Mr Em[m]anuel Fabila ever obtained the right of permanent residence in Australia. As Mr Fabila is there, it might be – he doesn’t have to, but it might be helpful if he could assist me in that respect.
MR FABILA: Yes, this is Mr Fabila here. No, I didn’t have the right of residency at the time, nor do I have one now.”
Based on the evidence before the Tribunal, I find that Emmanuel was never granted a Right to Permanent Residence in Australia, and, accordingly, s 65(4)(a) of the Papua New Guinea Constitution is not met.
Naturalised Australian citizen – s 65(4)(b)
As the Emmanuel had acquired Australian citizenship by birth, rather than naturalisation, s 65(4)(b) of the Papua New Guinea Constitution is not met.
Registered Australian citizen – s 65(4)(c)
This paragraph is inapplicable as the Emmanuel acquired Australian citizenship by birth, rather than by descent.
Citizen of a country other than Australia – s 65(4)(d)
In the Applicant’s Statement of Response (Exhibit 3) it is submitted that s 65(4)(d) applies. It is claimed that Emmanuel retained his Australian citizenship after Independence Day because he was a citizen of the Philippines.
The Minister made two initial submissions, both of which have merit.
First, it was pointed out that the Applicant has provided no official documentation from the Philippines confirming that Emmanuel is a Filipino citizen. In these circumstances, it is submitted, the Tribunal is not in a position to know whether the Filipino Government recognises the Applicant or her father as citizens of the Philippines – RUSFIC p. 10 para 53.
Second, Papua New Guinea obviously believes that Emmanuel is a Papua New Guinean citizen as he was been issued with a Papua New Guinean passport and, in that passport, his nationality is listed as being Papua New Guinean – Exhibit 1 T5 p. 34, RUSFIC p. 10 para 54.
As the Minister contends, the Applicant claims – RUSFIC p. 11 para 56:
(a)the Applicant’s great-great-grandfather, Hildaphonso Fabila, obtained Filipino citizenship by birth under the Constitution of the Philippines 1935 (PH) (1935 Constitution of the Philippines);
(b)her great-grandfather, Marcello, obtained Filipino citizenship by birth under the 1935 Constitution of the Philippines;
(c)her grandfather, Ildephonse, obtained Filipino citizenship by descent under the 1935 Constitution of the Philippines; and
(d)her father, Emmanuel, obtained Filipino citizenship by descent under the Constitution of the Republic of the Philippines 1973 (PH) (1973 Constitution of the Philippines).
The Minister quite properly submits that there are inherent problems in distilling the content of foreign laws, with all of the necessary difficulties and limitations that follow such an exercise – RUSFIC pp. 11 para 57. However, in this matter, the Tribunal, in reaching a sound conclusion, is not presented with any other reasonable alternative.
The Applicant’s case is that her father, Emmanuel:
(a)was born in the Territory of Papua;
(b)obtained Australian citizenship at birth;
(c)also obtained Filipino citizenship at birth;
(d)being a Filipino citizen, he did not automatically become a citizen of Papua New Guinea on Independence Day;
(e)retained his Australian citizenship from Independence Day onwards; and
(f)was an Australian citizen on the day the Applicant was born, and consequently, the Applicant is entitled to Australian citizenship by descent.
In order to resolve this matter, consideration has to be given to the evolving nature of Filipino citizenship law from the time that the Philippines was annexed by the United States of America following the Spanish American War of 1898.
Before doing so, it is necessary to set out the uncontested evidence of the Applicant’s paternal lineage.
The Tribunal has been provided with a document dated 17 August 1961, prepared by the Catholic Mission, Yule Island, Papua – Exhibit 1 T2 p. 13. According to the Church records, Marcello was born in the Philippines between 1862 and 1870. His father is recorded as Hildaphonso Fabila and his mother as Josepha Delgato. The Tribunal has no information as to when or where Marcello’s father was born.
The document also notes that Marcello was married in Papua on 22 November 1919 to Anna Natera, daughter of Emmanuel Natera, who was born in the Philippines, and Maria Aiva-Naime, who is recorded as being “Papuan”.
The Tribunal agrees, with one qualification, with the following submissions of Mr Hawker, on behalf of the Minister – RUSFIC p. 12 para 59:
“…The fact that a person fathers a child in a certain place is not of itself a sufficient basis to infer that the father was themselves born in that country or that they were a citizen of that country. The applicant alleges, without more, that the 1935 Constitution of the Philippines Islands conferred Filipino citizenship upon Hildephonse, but there is no evidence to suggest that Hildephonse was even alive in 1935. There is real reason to doubt that he was alive at that time given that he fathered a child in the 1860s and so presumably was born in the 1840s at the latest. This Tribunal cannot conclude, on the basis of the evidence it has before it at present, that Hildephonse was a Filipino citizen at any point during his life.”
The Philippines, together with Puerto Rico and Guam, were acquired by the United States by virtue of the Treaty of Paris which was signed on 10 December 1898 and ratified by the United States on 6 February 1899 and by Spain on 19 March 1899. The Treaty was proclaimed in effect on 11 April 1899.
The United States Congress passed the Philippine Bill of 102 on 1 July 1902, which became known as the Philippine Organic Act 1902 (US) (the 1902 Act), which legislation contained, for the first time, the concept of Filipino citizenship. Section 4 created Filipino citizenship by declaring – Exhibit 2 ST5 p. 24:
“That all inhabitants of the Philippine Islands continuing to reside therein who were Spanish subjects on the eleventh day of April, eighteen hundred and ninety-nine, and then resided in the Philippine Islands, and their children born subsequent thereto, shall be deemed and held to be citizens of the Philippine Islands and as such entitled to the protection of the United States, except such as shall have elected to preserve their allegiance to the Crown of Spain in accordance with the provisions of the treaty of peace between the United States and Spain signed at Paris December tenth, eighteen hundred and ninety-eight.”
The concept of Filipino citizenship in the 1902 Act was a legal fiction as the Philippines was a colony and not an independent nation. Rather, it would appear that the conferral of “citizenship” via the 1902 Act was a legal ploy to deny Filipino’s United States’ citizenship, and thus, unfettered entry into the United States. Consequently, the conferral of Filipino citizenship under the 1902 Act had no international effect, but rather, was a tool for regulating and restricting the migration of persons from the Philippines to the United States.
In order to acquire Filipino citizenship under the 1902 Act, a person had to be residing in the Philippines on 11 April 1899. The Tribunal has no information before it in relation to whether Hildaphonso was either alive on 11 April 1899 or, if he was, whether he was residing in the Philippines. If he was alive at that time and was living in the Philippines, then he would been a citizen of the Philippines by virtue of the 1902 Act. Conversely, if Hildaphonso was not residing in the Philippines on 11 April 1899, he would not have conferred on him Filipino citizenship.
There is another important issue that arises from the operation of s 4 of the 1902 Act. Citizenship was also bestowed on “children born subsequent thereto”. In short, s 4 laid down the principle of derivative citizenship and enshrined the principle of jus soli, or the right of anyone born in the territory of a State to nationality or citizenship.
The Tribunal has been provided with much more information about Marcello. In an article titled “The ‘lost’ Filipino descendants” by Alfredo Hernandez (undated), the following information about Marcello is provided – Exhibit 2 ST2 p. 4:
“Of the early Filipinos who came to PNG, it was Marcello Fabila who gained much prominence as a mission worker. Born in 1869 in Dancalan, Antique in Central Philippines, Marcello was a seaman and an adventurer who travelled widely in Southeast Asia, Australia and British New Guinea (aka Papua).
A knowledgeable and devoted Catholic, he decided to join the early missionaries of the Yule Island’s Catholic Diocese in the Bereina district of the British New Guinea in 1898 then headed by European Bishop Alain de Boismenu. Marcello was then 29 and for his first job, was made seaman on ‘St Andrew’, the mission ship.
Later as working as a catechist-teacher, Marcello met a Yule island girl Raurau Ke’e and married her in 1901. They had two children – Mika (Michael) Marcello Fabila and Kala (Salvatore) Marcello Fabila. Both Marcello and Raurau worked in many villages within the Bereina district of Papua.
Widowed at 52, Marcello married in 1919 a Filipino-Papua New Guinean girl Anna Natera, then 18, the fifth child among 14 children of Filipino Emannuel Simplicio Natera and Papuan woman Maria Aiva Ume. Emmanuel Simplicio was a Catholic mission worker in PNG during the mid-1800s.
…He died on November 30, 1942 at the age of 73 in Poukama, Central province and was buried at the mission cemetery on Yule Island. Anna died in 1989 in Brisbane, Australia at the home of one of her children. She was 88.”
From this account, Marcello arrived at Yule Island, Papua, in 1898. Prior to that time, it would also appear that, as a seaman, he travelled throughout Southeast Asia and Australia. In other words, on 11 April 1899, he was not living in the Philippines and, therefore, did not have the newly created Filipino citizenship bestowed on him by virtue of s 4 of the 1902 Act.
Attention can now be directed at the next development in Filipino citizenship law, namely, the passage of the Philippine Autonomy Act 1916 (US) (the 1916 Act), otherwise known as the Jones Law. This was the first official declaration of the United States’ commitment to grant independence to the Philippines. It established the first fully elected Philippine Legislature and made it more independent of the US Government. Importantly, for this matter, it also contained a provision dealing with citizenship.
Section 2 of the 1916 Act provided as follows – Exhibit 2 ST6 p. 26:
“That all inhabitants of the Philippine Islands who were Spanish subjects on the eleventh day of April, eighteen hundred and ninety-nine, and then resided in said Islands, and their children born subsequent thereto, shall be deemed and held to be citizens of the Philippine Islands, except such as shall have elected to preserve their allegiance to the Crown of Spain in accordance with the provision of the treaty of peace between the United States and Spain, signed at Paris December tenth, eighteen hundred and ninety-eight, and except such others as have since become citizens of some other country: Provided, That the Philippine Legislature, herein provided for, is hereby authorized to provide by law for the acquisition of Philippine citizenship by those natives of the Philippine Islands who do not come within the foregoing provisions, the natives of the insular possessions of the United States, and such other persons residing in the Philippine Islands who are citizens of the United States, or who could become citizens of the United States under the laws of the United States if residing therein.”
For the purposes of this matter, s 2 of the 1916 Act is consistent with s 4 of the 1902 Act, and again, there is no evidence that Marcello was residing in the Philippines on 11 April 1899. Indeed, all the evidence points to the fact that, on 11 April 1899, Marcello was residing on Yule Island.
It is impossible for the Tribunal to make any sensible determination on whether Marcello remained, on and after 11 April 1899, a Spanish subject. No evidence has been led on this issue and, in the absence of submissions or evidence, the Tribunal is not in a position to make any findings.
In 1934, the United States Congress passed the Philippine Independence Act 1934 (US) to “provide for the complete independence of the Philippine Islands, to provide for the adoption of a constitution and a form of government for the Philippine Islands, and for other purposes” – Exhibit 2 ST7 p. 27.
This legislation, also known as the Tydings-McDuffie Act, resulted in the promulgation of the 1935 Constitution of the Philippines. Article 4 of the 1935 Constitution of the Philippines contained the following provisions:
“SECTION 1. The following are citizens of the Philippines:
(1)Those who are citizens of the Philippine Islands at the time of the adoption of this Constitution.
(2)Those born in the Philippine Islands of foreign parents who, before the adoption of this Constitution, had been elected to public office in the Philippine Islands.
(3)Those whose fathers are citizens of the Philippines.
(4)Those whose mothers are citizens of the Philippines and, upon reaching the age of majority, elect Philippine citizenship.
(5)Those who are naturalized in accordance to law.”
Based on the previous discussion of the 1902 Act and the 1916 Act, the Tribunal finds that Marcello was not a citizen of the Philippines at the time of the adoption of the 1935 Constitution of the Philippines.
Subsection 1(3) of the 1935 Constitution of the Philippines would only be relevant if, by 1935, Hildaphonso was still alive. As Mr Hawker, on behalf of the Minister, pointed out, this is highly unlikely as he would have been somewhere between 90 and 100 years of age by that time. This matter could only be conclusively resolved by the Applicant obtaining a Death Certificate of Hildaphonso. In the absence of any evidence to the contrary, the Tribunal proceeds on the basis that, by the time of the adoption of the 1935 Constitution of the Philippines, Hildaphonso was deceased, and s 1(3) is inapplicable.
The Tribunal’s attention was next drawn to the Commonwealth Act No. 63 1936 (PH) (Act No, 63), which provides ways in which Filipino citizenship may be lost or reacquired – Exhibit 2 ST9 pp. 31 – 32.
None of the provisions for the renunciation of citizenship have particular relevance to Marcello due to the paucity of evidence before the Tribunal.
However, what is of relevance is that Act No. 63 attempted to codify, for the first time, the principles underpinning the loss of citizenship. In short, the Philippine Legislature recognised that it is possible for a person to lose his or her citizenship.
Following the commencement of the 1902 Act, there was considerable jurisprudence generated in the Supreme Court of the Philippines on the question of loss of citizenship. This mostly concerned persons of Chinese background who were born in the Philippines, went to China and only returned to the Philippines some time later. The question that arose was whether a person born in the Philippines, who leaves and resides for a lengthy period in a foreign nation, thereby forfeits their Filipino citizenship.
For present purposes, reference need only be made to the decision of Benito Munoz v The Collector of Customs 20 Phil 494. The Emmanuel was born in China and came to the Philippines when he was about 20 years old. He lived in the Philippines for the next 47 years and only occasionally left the Philippines, and then for short visits. When he first came to the Philippines, he obtained, from the Spanish Government, a permission to reside, married a Filipino woman and had issue. After his first wife died, he married a second Filipino wife, and the applicant was his son from this marriage. The applicant was born in 1880 and when he was 11, he was sent to China and remained there until 1911, when he returned to the Philippines and sought re-entry as a citizen.
Moreland J, with whom Torres, Mapa, Johnson, Carson and Trent JJ concurred, first set out the following facts:
“6. That said Benito Muñoz lived in the Philippine Islands with his father until he attained the age of eleven years, when he departed for China, and there remained until January 16, 1911, when he returned to the Philippine Islands in the steamer Taisang, and sought admission thereto as a native and citizen thereof;
7. That before the immigration officers who investigated his right of entry he presented satisfactory proof that he would have returned sooner to the Philippine Islands had it not been for certain financial difficulties, and that he had never intended to expatriate himself and had never taken any active steps to that end;
8. That the immigration offices denied the petitioner the right to enter the Philippine Islands solely on the theory that he is an alien of Chinese race who presents none of the required statutory proof that he is a member of the exempt class of Chinese persons;
9. That petitioner has now exhausted all administrative remedies available to him in his efforts to be declared a citizen and allowed to enter the Philippine Islands as such...”
Having set out the agreed facts, Moreland J then made the following observations:
“This court has already held in the case of United States vs. Go Siaco (12 Phil. Rep., 490) that a male person born in the Philippine Islands, of a Filipino mother and a Chinese father, said father being domiciled with his permanent home in the Philippine Islands and subject to the jurisdiction of the government thereof, is, prima facie, a citizen of the Philippine Islands; and the fact that he, at the age of 14, went to China and remained there until 1897 when he returned to the Islands where he has since continuously resided, was not sufficient in itself to change his status as a citizen of the Philippine Islands.
In the case before us the applicant was born in the Philippine Islands of a Chinese father and a Filipino mother in the year 1880. The father lived continuously in the Islands for about sixty years, and acquired considerable real and personal property therein. The applicant lived here until 11 years of age, when he was sent to China, where he remained until January, 1911. On this date he returned to the Islands asserting that he was a native and citizen thereof, and with the bona fide intention of making this his permanent home and country, but he was denied entry ‘solely on the theory that he is an alien of Chinese race who present none of the required statutory proof that he is a member of the exempt class of Chinese persons.’
These considerations, taken in connection with paragraph 7 of the stipulation of facts in which it is admitted ‘that before the immigration officers who investigated his right of entry he presented satisfactory proof that he would have returned sooner to the Philippine Islands had it not been for certain financial difficulties, and that he never intended to expatriate himself and had never taken active steps to that end,’ bring this case clearly within the decision in the case of Go Siaco, above mentioned.
This ruling is not at variance with the recent case of Lorenzo vs. Collector of Customs (15 Phil. Rep., 559). In that case it appeared that:.
In the present case the applicant left the Philippine Islands when he was about 15 years of age and remained in China until he was 34 years of age. He says himself that he had no intention of returning to the Philippine Islands until the year before he did return. His mother and his brother say that he married a wife in China… The applicant says that he owned and operated a farm in China; that he was a subject of the Chinese Empire… The applicant testified that he never had any intention of returning to the Philippine Islands until last year.
Nor is the decision in conflict with the rules adopted by the Department of State of the United States Government with reference to the loss of citizenship by continued residence abroad. This rule is to the effect that a continued residence abroad for three years, after the attainment of majority, produces a loss of citizenship, unless it is clearly proved that the animus revertendi existed. (Van Dyne on Citizenship, pp. 276, 277; In re Bosque, 1 Phil. Rep., 88.)
In the case before us the intention to return is admitted, as is also the fact that the return was prevented by circumstances over which the applicant had no control. Under such conditions citizenship is not lost where the stay abroad is not prolonged beyond that shown in the case at bar, and when there is, in fact, a bona fide return to the native land with the honest intention to make it his permanent home and country.”
(emphasis in the original)

This Philippine Supreme Court decision stands for the proposition that, following the passage of the 1902 Act, a person who had acquired Filipino citizenship could lose that status if he or she, having voluntarily departed from the Philippines, did not evince a desire to return, but that citizenship is not lost in circumstances where the return was delayed or prevented by circumstances over which he or she had no control. The judgment of Moreland J focuses on three particular circumstances.
First, the length of time a person has been absent from the Philippines.
Second, the age of the person when they left. This is particularly important when the person left the Philippines as a minor and where their departure was dictated by events over which they had no control.
Third, whether there was an intention to return to the Philippines, but such return was prevented or delayed by circumstances over which an applicant had little or no control.
Underpinning all of these considerations is the assumption that an applicant has not voluntarily determined to make another nation his permanent home and country. When, as in this matter, Marcello never returned to the Philippines, married Papuan women and fathered many children, all strongly suggest that he had determined that his place of domicile was Papua and not the Philippines.
This was the law of the Philippines from the time of the 1902 Act until the enactment of Act No. 63 in 1936. It follows, as a matter of logic and law, that if, contrary to the above findings, Marcello obtained citizenship by virtue of the 1902 Act, then that citizenship was forfeited by his prolonged absence from the Philippines and his implicit intention to permanently reside in Papua with his family.
It is not necessary, having regard to the above discussion, to deal with the implications of the Constitution of the Philippines 1943 (PH) (1943 Constitution of the Philippines) for Marcello, as he had passed away by the time of its promulgation – Exhibit 2 ST 10 pp. 33 – 34.
Having determined that Marcello either never obtained Filipino citizenship, or, if in the very unlikely event that he did, that he subsequently forfeited it, it follows inexorably that any of his descendants did not have, and could not claim, Filipino citizenship. However, if the Tribunal is in error with these findings, then consideration must be given to the citizenship status of the Applicant’s paternal grandfather, Ildephonse.
Attached to the Applicant’s Statement of Response (Exhibit 3) is a copy of Ildephonse’s official birth certificate. The birth certificate records that he was born in May 1927 in Papua and that his father was Marcello (teacher) and his mother was Anna Theresa Natera.
The Applicant’s case rests on the proposition that Ildephonse had Filipino citizenship at the time of his birth as his father, Marcello, was still, at that time, a Filipino citizen. The Applicant’s case is predicated on the operation, firstly, on s 1 of Article IV of the 1935 Constitution of the Philippines, namely that, at the time of the adoption of the 1935 Constitution of the Philippines, Marcello was a citizen of the Philippines (s 1(1)) and that by virtue of that fact, Ildephonse, as his son, was deemed to be a citizen of the Philippines (s 1(3)).
It is also desirable to refer to the 1943 Constitution of the Philippines which was promulgated under the auspices of the Japanese Occupation forces. The 1943 Constitution of the Philippines purported to proclaim independence for the Philippines, but this was a fiction, and was not internationally recognised. Nonetheless, Article VI of the 1943 Constitution of the Philippines dealt with citizenship and contained the following provision – Exhibit 2 ST10 p. 34:
“SECTION 1. The following are citizens of the Philippines:
(1) Those who are citizens of the Philippines at the time of the adoption of this Constitution and their descendants…”
As explained above, Marcello passed away in 1942, and, as such, the 1943 Constitution of the Philippines has no relevance to his situation. However, if Ildephonse obtained citizenship by virtue of the 1935 Constitution of the Philippines, then the 1943 Constitution of the Philippines simply reconfirmed his citizenship status.
Attention must now be given to the operation of s 25 of the 1948 Act, which conferred Australian citizenship on Ildephonse. Section 25 provided as follows:
“25.-(1.) A person who was a British subject immediately prior to the date of commencement of this Act shall, on that date, become an Australian citizen if-
(a) he was born in Australia and would have been an Australian citizen if section ten of this Act had been in force at the time of bis birth;
(b) he was born in New Guinea;
(c) he was a person naturalized in Australia; or
(d) he had been, immediately prior to the date of commencement of this Act, ordinarily resident in Australia or New Guinea, or partly in Australia and partly in New Guinea, for a period of at least five years”
“New Guinea” was defined in the 1948 Act as the Territory of New Guinea, namely, Papua.
Mr Hawker submitted, on behalf of the Minister, that the conferral of Australian citizenship on Ildephonse by operation of the 1948 Act would appear to have engaged s 1(1) of Act No. 63, and he thereby lost his Filipino citizenship, if he ever had such a status, which the Minister refutes – RUSFIC p. 18 para 76.
The Tribunal does not agree with Mr Hawker’s submission. Subsection 1(1) refers to naturalization in a foreign country. Ildephonse did not acquire his Australian citizenship by naturalisation, rather it was obtained by automatic conferral by reason of geographic location. Nor do any of the other circumstances outlined in s 1 ostensibly apply to Ildephonse. However, the operation of s 1 of Act No. 63 would only be relevant if Ildephonse was a citizen of the Philippines upon commencement of the 1948 Act. The above discussion discount this, and the interrelationship between the operation of s 25 of the 1948 Act and s 1 of Act No. 63 is purely academic.
For the sake of completeness, the Tribunal will deal with the final strand of the Applicant’s case, namely that, at the time of her birth, her father Emmanuel was a citizen of the Philippines.
Reference needs to be made to the provisions contained in Article III of the 1973 Constitution of the Philippines:
“SECTION 1. The following are citizens of the Philippines:
(1) Those who are citizens of the Philippines at the time of the adoption of this Constitution.
(2) Those whose fathers or mothers are citizens of the Philippines.
(3) Those who elect Philippine citizenship pursuant to the provisions of the Constitution of nineteen hundred and thirty-five.
(4) Those who are naturalized in accordance with law.
SEC. 2. A female citizen of the Philippines who marries an alien shall retain her Philippine citizenship, unless by her act or omission she is deemed, under the law, to have renounced her citizenship.
SEC. 3. Philippine citizenship may be lost or reacquired in the manner provided by law.
SEC. 4. A natural-born citizen is one who is a citizen of the Philippines from birth without having to perform any act to acquire or perfect his Philippine citizenship.”
The Applicant’s case rests on her father, Emmanuel, claiming Filipino citizenship by descent. In his case, he necessarily has to rely on s 1(2), namely, that his father was a citizen of the Philippines. For the reasons outlined above, that proposition finds no support from the evidence presented to the Tribunal.
In conclusion, the Tribunal finds that the Emmanuel was not a citizen of a country other than Australia as at Independence Day for the purposes of s 65(4)(d) of the Constitution of Papua New Guinea.
Applicability of s 65 exceptions
The Tribunal, therefore, finds that none of the deeming exceptions in s 65 of the Constitution of Papua New Guinea apply, and, accordingly, the Emmanuel became a citizen of Papua New Guinea on Independence Day.
Did the Applicant’s father lose his Australian citizenship on Independence Day?
For the reasons outlined above, Emmanuel ceased to be an Australian citizen on Independence Day due to the operation of regulation 4 of the Independence Regulations.
Did the Applicant’s father reacquire Australian citizenship prior to the Applicant’s birth on 24 December 1983?
The ameliorative operation of the Young Persons Regulations can only benefit Emmanuel if the evidence discloses that he had a Right to Permanent Residence in Australia immediately before Independence Day.
Not only is there no evidence that Emmanuel had a Right to Permanent Residence in Australia immediately prior to Independence Day, but he also testified at the Hearing that he did not have that status – Tr. 7.4.2022 p. 26.
Conclusion
On the basis of the evidence presented, the Tribunal finds that the Applicant did not have, at the time of her birth, a parent who was then an Australian citizen, and thus, failed to fulfil the requirements of s 16(2)(a) of the Act.
As explained above, the Tribunal has been presented with no evidence from the Filipino Government about that Government’s position of the citizenship status of the Applicant’s father, or, indeed, her paternal grandfather and great-grandfather. Citizenship law is both complex and constantly evolving. In the case of the Philippines, over the past century, the principle underpinning the citizenship has moved from jus soli to jus sanguinis – citizenship determined or acquired by the nationality of one or both parents. Unlike some other countries, the Philippines now recognises dual citizenship in some circumstances.
However, the Tribunal can only proceed on the material presented, and that material does not support the fundamental propositions advanced by the Applicant. If a tribunal of fact was presented with official documentation from the Philippines that recognised Marcello had obtained and retained Filipino citizenship (which is not demonstrated by the material before the Tribunal) then, perhaps, a different result would eventuate. It is not appropriate to unduly speculate on such a circumstance, as it is up to the Applicant and her family to make the necessary enquiries with Filipino Government.
DECISION
The decision under review is affirmed.

I certify that the preceding 142 (one-hundred and forty-two) paragraphs are a true copy of the reasons for the decision herein of Deputy President J Sosso

.................[SGD]......................................................
Associate
Dated: 27/05/2022

Date of hearing: 7 April 2022

Applicant:
By telephone

Solicitor for the Respondent at the Hearing:
Mr Samuel Cummings
Sparke Helmore Lawyers

Instructing Solicitors for the Respondent: Ms Cody Allen and Mr Matthew Hawker
Sparke Helmore Lawyers

Date of hearing:	7 April 2022
Applicant:	By telephone
Solicitor for the Respondent at the Hearing:	Mr Samuel Cummings Sparke Helmore Lawyers
Instructing Solicitors for the Respondent:	Ms Cody Allen and Mr Matthew Hawker Sparke Helmore Lawyers