Fabila and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Citizenship)

The applicant, Fabila, sought Australian citizenship by descent, claiming that a parent was an Australian citizen at the time of the applicant's birth. The Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs refused the application, as the delegate was not satisfied that the parent was an Australian citizen. The Administrative Appeals Tribunal affirmed this decision. The applicant appealed to the Federal Circuit and Family Court of Australia.

The primary legal issue before the Court was whether the applicant's parent was an Australian citizen at the time of the applicant's birth. This question hinged on the citizenship status of the applicant's great-grandfather, Marcello, who was born in the Territory of Papua. The applicant contended that Marcello was an Australian citizen by virtue of his birth in the Territory, and that this citizenship was retained despite Papua New Guinea's independence. The Court also considered whether any exceptions under section 65 of the Papua New Guinea Constitution applied to Marcello's citizenship.

The Court noted that the applicant's case relied on the proposition that Marcello was an Australian citizen at the time of the applicant's birth. However, the material before the Tribunal did not demonstrate that Marcello had obtained and retained Filipino citizenship, which was a crucial element for establishing his Australian citizenship status in the context of Papua New Guinea's constitutional history and independence. The Court found that it was not appropriate to speculate on hypothetical circumstances and that the onus was on the applicant to provide the necessary evidence from the Filipino Government to support their claim.

The Court affirmed the decision under review, finding that the material presented did not support the applicant's fundamental propositions regarding her parent's Australian citizenship.