Galloway and Minister for Immigration and Citizenship

[2007] AATA 65

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2007] AATA 65

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No A2007/1

GENERAL ADMINISTRATIVE  DIVISION		)
Re		VETENA VAGI GALLOWAY

Applicant

And MINISTER FOR IMMIGRATION AND CITIZENSHIP

Respondent

DECISION

Tribunal Mr S. Webb, Member

Date26 February 2007

PlaceCanberra

Decision The Tribunal decides not to grant an extension of time to make an application.

..............................................

Mr S. Webb, Member

CATCHWORDS

PRACTICE AND PROCEDURE - extension of time to make an application - Australian citizenship lost on independence of Papua New Guinea - claim for resumption of citizenship - relevant factors to be considered - substantive application is without merit - extension of time not granted

Administrative Appeals Tribunal Act 1975 s 29

Australian Citizenship Act 1948 ss 10, 23A, 23AA, 23AB, 23B

Papua New Guinea Independence Act 1975 s 4, 6

Papua New Guinea Independence (Australian Citizenship) Regulations 1975 Reg. 4

Constitution of Papua New Guinea s 65

Hunter Valley Developments Pty Ltd & Anor v Cohen (1984) 3 FCR 344

Re Mulheron and Australian Telecommunications Corporation (1991) 23 ALD 309

Re Wijaya and Minister for Immigration and Multicultural and Indigenous Affairs [2005] AATA 720

Comcare V A’Hearn (1993) 119 ALR 85

Minister for Immigration and Multicultural and Indigenous Affairs v Walsh (2002) 189 ALR 694

REASONS FOR DECISION

26 February 2007 Mr S. Webb, Member         

1. Vetena Vagi Galloway became a citizen of Papua New Guinea when that state achieved independence from Australia in 1975. Prior to independence Mr Galloway was an Australian citizen. On 23 May 2006 he applied for resumption of his Australian citizenship. The Minister rejected his application in a decision dated the 28 November 2006. On 4 January 2007 Mr Galloway lodged a request for an extension of time in which to make an application for review of the Minister's decision. The request was lodged outside the statutory 28 day period for lodgement of an application for review prescribed by subsection 29(2) of the Administrative Appeals Tribunal Act 1975. 

2.      Thus the issue arising for determination in these proceedings is whether or not an extension of time to make an application should be granted in the circumstances.

3.      Mr Galloway asserted that an extension should be granted.  In his submission the request for an extension was only marginally out of time by a number of days.  He says that he signed and posted the request on 19 December 2006 in Port Moresby.  He explained that the reason he needed an extension of time in which to make an application was because he was busy in his professional duties at the University of Papua New Guinea and required additional time to conduct research into his family background.

4.      As will appear I am satisfied that it is not appropriate to grant an extension of time to Mr Galloway to make an application for review of the Minister's decision in the circumstances.

5.      The AAT Act confers discretion on the Tribunal to extend the 28 day period in which an application may be made if it is reasonable to do so in all the circumstances[1], but sets out no other preconditioning criteria for the exercise of the discretion.   Relevant criteria to be considered in relation to an application for an extension of time have been discussed by the Federal Court[2] and the Tribunal[3]. In essence, the criteria that have been applied following such authorities are:

[1] subs 29(7)

[2] see Hunter Valley Development Pty Limited v Cohen (1984) 3 FCR 344

[3] see, for example, Re Mulheron and Australian Telecommunications Corporation (1991) 23 ALD 309 and Re Wijaya and Minister for Immigration and Multicultural and Indigenous Affairs [2005] AATA 720

(a)whether the applicant has an acceptable explanation for the delay.  Prima facie proceedings commenced outside time will not be entertained, but an extension of time will be granted if it is fair and equitable to do so.  In Comcare v A’Hearn (1993) 119 ALR 85 the Federal Court said at 88 that such an explanation is usually to be expected but the lack thereof need not necessarily result in the refusal of an extension of time;

(b)whether the applicant took action to make the decision-maker aware that the decision was being contested;

(c)whether the grant of an extension of time would prejudice the respondent;

(d)whether there is any wider prejudice to the general public in terms of disruption to established practices;

(e)whether the substantive application appears to have merit: and

(f)considering other persons in a similar position to the Applicant, whether it is fair to grant the extension of time.

6.      Mr Galloway’s explanation concerning his request for an extension of time in which to make an application is neither compelling nor determinative.  He has given his reasons and, in essence, those are that he needs more time to prepare his case.

7.      It is not disputed that he informed the respondent Minister, at least by his request for an extension of time, of his intention to dispute the decision in question.  As I understand it there is no dispute about issues of prejudice concerning Mr Galloway's request for an extension of time.  Thus I am satisfied that those issues do not arise as an impediment to Mr Galloway’s request.

8.      However issues of merit and fairness do arise.  Concerning the issue of merit it is necessary to form a view about the prospects of Mr Galloway's substantive case, without proceeding to review the matter in detail.  He is seeking the resumption of the Australian citizenship lost as a consequence of the legislative arrangements that came into force with the granting of independence to the state of Papua New Guinea in 1975.  It is necessary, briefly, to consider those arrangements insofar as they are relevant to Mr Galloway's case.

9.      The background facts are as follows.  Mr Galloway was born on 26th of September 1971 in the Territory of Papua.  By his own account his mother and both his maternal grandparents were also born in the Territory.  His father died in 1984 and was not known to him.  Mr Galloway has conducted research into his father's identity and his origins, but that material is not before me.  Mr Galloway resides in Port Moresby.

10. Pursuant to s.10 of the Australian Citizenship Act 1948 (“the Citizenship Act”) Mr Galloway was an Australian citizen as a result of his birth in the Territory of Papua. On Independence Day (16 September 1975) the Territory of Papua became part of the nation of Papua New Guinea, and ceased to be a Territory of Australia[4].  On that day the Constitution of Papua New Guinea came into effect, and relevantly provided that:

[4] s 4 Papua New Guinea Independence Act 1975

“65(1)A person born in the country before Independence Day who has two grandparents who are born in the country or an adjacent area is a citizen.

…

(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).”

11.     Thus Mr Galloway became a citizen of Papua New Guinea on Independence Day unless he then had a right to permanent residence in Australia. There is no evidence before me that he had any such right at the time.  Mr Galloway was born and lived all his life, prior to Independence Day, in a place which was outside Australia for the purposes of the Migration Act 1958 as it stood at that time. Mr Galloway would have required a permit under the Migration Act to enter Australia. It follows, therefore, that he did not have a right to permanent residence in Australia at that time[5].

[5] see Minister for Immigration and Multicultural and Indigenous Affairs v Walsh (2002) 189 ALR 694 at 697-699

12.     That being so, Mr Galloway became a citizen of Papua New Guinea on Independence Day.  As a consequence, pursuant to Regulation 4 of the Papua New Guinea Independence (Australian Citizenship) Regulations 1975[6], which mirrored s65 of the Papua New Guinea Constitution, Mr Galloway lost his Australian citizenship.

[6] Made under s 6 of the Papua New Guinea Independence Act (1975)

13. Mr Galloway's case is for resumption of the Australian citizenship he lost on Independence Day. Sections 23AA, 23AB, 23A and 23B of the Citizenship Act set out the limited circumstances in which a person may resume lost citizenship. Mr Galloway did not lose his Australian citizenship as a result of doing any act or thing and is not within the terms of s.23AA. He did not lose his citizenship by renunciation and is more than 25 years old. Thus s.23AB does not apply to him. Mr Galloway did not lose Australian citizenship under s.20 of the Nationality and Citizenship Act 1948 (repealed). That act was repealed in 1958, almost 23 years before Mr Galloway's birth. It follows that s.23A does not apply to Mr Galloway. There is no evidence that either of Mr Galloway's parents renounced their Australian citizenship (s.18) or lost that citizenship as result of fighting in the armed services of an enemy of Australia (s.19) or were deprived of citizenship pursuant to s.21. It follows, as I understand the evidence in Mr Galloway's case, that s.23 does not apply to him and he is not within the terms of s.23B.

14.     Thus it can be seen that Mr Galloway's case for resumption of Australian citizenship has no merit.  If at some point in the future Mr Galloway's research concerning his father’s citizenship or circumstances yields evidence of relevance, it is open for Mr Galloway to place that evidence before the Minister when making a fresh claim in relation to Australian citizenship.  I note in passing, having heard Mr Galloway, that it appears that the case he is pursuing may be one of citizenship by descent through his father.  If that is so, it is not a matter that is presently within the Tribunal's jurisdiction, but it is a matter that Mr Galloway may choose to pursue in the future, subject to the evidence he obtains.

15.     In the circumstances therefore I am satisfied that it is not appropriate to extend the time for Mr Galloway to make an application to this Tribunal for review of the Minister’s decision.  To do so would be unfair to others who have made efforts to complete their researches prior to making an application to the Minister, and it would also be unfair to those who have been denied an extension of time to make an application for want of merit in their substantive case.

16.     That being so Mr Galloway is not granted an extension of time in which to make an application.

I certify that the 16 preceding paragraphs are a true copy of the reasons for the decision herein of Mr S. Webb, Member

Signed:       ...........[Peter Strauch]..................................
  Associate

Date of Hearing  16 February 2007
Date of Decision  26 February 2007
Representative for the Applicant             Self
Solicitor for the Respondent  Xuelin Teo
  Clayton Utz