Ginate and Minister for Immigration and Citizenship

[2008] AATA 1002

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2008] AATA 1002

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No 2007/3837

GENERAL ADMINISTRATIVE   DIVISION		)
Re		GLORIA GINATE

Applicant

And MINSTER FOR IMMIGRATION AND CITIZENSHIP

Respondent

DECISION

Tribunal Dr P McDermott, RFD, Senior Member

Date6 November 2008

PlaceBrisbane

Decision The Tribunal affirms the decision under review.

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

Senior Member

CATCHWORDS

IMMIGRATION AND CITIZENSHIP – Citizenship – Application to become an Australian citizen again – applicant citizen of Australia at birth – on independence in 1975 became citizen of Papua New Guinea and ceased to be an Australian citizen – decision under review affirmed.

Australian Citizenship Act 1948 ss 5,10,18,19,20,23AA, 23B, 23, 25

Constitution of the Independent State of Papua New Guinea s 65

Papua New Guinea Independence Act 1975 ss 4, 6

Papua New Guinea Independence (Australian Citizenship) Regulations 1975

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

Migration Act 1958 (Cth)

Australian Citizenship Act 2007 (Cth) ss 21, 29

Australian Citizenship (Transitional and Consequential) Act 2007 s 42

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

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

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

REASONS FOR DECISION

6 November 2008 Dr P McDermott, RFD, Senior Member  

INTRODUCTION

1.      Ms Gloria Ginate, who has previously held Australian citizenship, has made an application to become an Australian citizen again. On 12 July 2007, Ms Ginate was advised that her application was refused by a delegate of the Minister. Ms Ginate 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.

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 the case of a person in the position of Ms Ginate, 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.      Ms Ginate was born in 1960[2] in Port Moresby in the then Territory of Papua. Ms Ginate then became an Australian citizen by birth. This is because s 10(1) of the 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 Ms Ginate.

[2] To protect the privacy of Ms Ginate in these reasons I do not mention her actual date of birth.

5. It is not in issue that when Ms Ginate was born the Territory of Papua was then part of Australia. The submission on behalf of the Minister (which was made in respect of a number of applicants) was that Australia was defined in s 5 of the Australian Citizenship Act 1948 as including “Norfolk Island and the Territory of Papua”. This is the definition which originally appeared in s 5 of the Act (which was then the Nationality and Citizenship Act 1948). This definition in s 5 was omitted by the Nationality and Citizenship Act 1953 which inserted a new definition which provided that “‘Australia’ includes the Territories of the Commonwealth that are not trust territories”.  It is this latter definition that was in force when Ms Ginate was born.

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 Ms Ginate has three grandparents who were born in the then Territory of Papua, namely Gogori Kei’a; James Alex Solien and Theresa Resena.

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 on Independence Day s 65(4) of the Constitution of the Independent State of Papua New Guinea had no application to Ms Ginate.  There is no evidence that Ms Ginate then had a right of permanent residence in Australia under the Migration Act 1958. She 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. She was also then not a citizen of another country other than Australia. It is for these reasons that I consider that the application of s 65(1) of the Constitution has not in her case been excluded by the operation of s 65(4) of the Constitution.

9.      I find that Ms Ginate became a citizen of the Independent State of Papua New Guinea on Independence Day by the operation of s 65(1) of the Constitution of the Independent State of Papua New Guinea.  She satisfies the requirements for the operation of s 65(1) by being born in the Independent State of Papua New Guinea before Independence Day and by the fact that she has three grandparents who were born in that country.

CESSATION OF AUSTRALIAN CITIZENSHIP

10.     While Ms Ginate became a citizen of the Independent State of Papua New Guinea on Independence Day, on that day she also ceased by operation of law to be an Australian citizen.  This cessation of Australian citizenship occurred by virtue of the operation of regulation 4 of the Papua New Guinea Independence (Australian Citizenship) Regulations 1975.  This regulation applies to Ms Ginate 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.  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

11.     Prior to Independence Day, Ms Ginate 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 Ms Ginate 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.

12.     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 on Independence Day when Ms Ginate last held Australian citizenship, that citizenship did not give her 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.

13.     The fact that on Independence Day Ms Ginate was under the age of 19 years was relied upon as grounds for 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.  Ms Ginate then had no such right of permanent residence and accordingly regulation 2 has no application.

AUSTRALIAN CITIZENSHIP ACTS

14. On 23 June 2006, Ms Ginate lodged a “Declaration of desire to resume Australian citizenship under sections 23A, 23AA, 23AB or 23B”. This declaration was lodged before the passage of the Australian Citizenship Act 2007.  Ms Ginate is concerned that her declaration was not considered under the Australian Citizenship Act 1948 (which in her submission is referred to as the old Act).  However, I am satisfied that Ms Ginate was not disadvantaged as her case did not come within the ambit of the old Act.

15. Ms Ginate has relied upon s 23AA and s 23B of the Australian Citizenship Act1948.

16. I am satisfied that s 23AA of the Australian Citizenship Act1948 had no application to Ms Ginate. This provision applied where an applicant had done a voluntary and formal act, other than marriage, by virtue of which he or she acquired the nationality or citizenship of a country other than Australia (s 23AA(1)(a)(i)) or done any act or thing to acquire the citizenship of another country (s 23AA(1)(a)(ii). There is no evidence before me that Ms Ginate did any such acts or things that are referred to in s 23AA.

17. I am also satisfied that s 23B of the Australian Citizenship Act1948 had no application to Ms Ginate.  This provision applied where a person by reason of s 23 of that Act had ceased to be an Australian citizen.  This latter provision applied where a responsible parent of a child ceased to be an Australian citizen under s 18 or s 19 of that Act.  I am satisfied that neither s 18 (which refers to where an adult person (of the age of twenty-one years) had made a declaration renouncing his Australian citizenship) or s 19 (which refers to a loss of citizenship by service in the armed forces of an enemy country) have any application at all to a parent of Ms Ginate.

18. The declaration made by Ms Ginate also made reference to s 23A and s 23AB of the Australian Citizenship Act1948.  For the sake of completeness, I should mention that I am satisfied that neither of those provisions had any application to Ms Ginate.

19. Section 23A of the Australian Citizenship Act1948 enabled a declaration for the resumption of citizenship to be made where citizenship had been lost under s 20 of that Act.  This latter provision applied to naturalized and registered persons who have resided outside Australia (which included the then Territory of Papua) and New Guinea for a continuous period of seven years.  This latter provision had no application to Ms Ginate who, in any event, was neither a naturalized or registered person.

20. Section 23AB of the Australian Citizenship Act1948 enabled a declaration for the resumption of citizenship to be made where a person had ceased to be an Australian citizen under s 18.  This latter provision applied where an adult person (of the age of twenty-one years) had made a declaration renouncing his Australian citizenship.  I mention again that this latter provision could have no application to Ms Ginate who was a minor when she lost her Australian citizenship.

21.     Even though the abovementioned provisions of the Australian Citizenship Act1948 are no longer in force, in my view they had no application to Ms Ginate.  This is why I am satisfied that Ms Ginate has not been prejudiced by her declaration not having been considered under the Australian Citizenship Act1948.

22.     The Australian Citizenship (Transitional and Consequential) Act 2007 provides, in Schedule 3, for declarations made under s 23AA and s 23B of the old Act to be taken to be an application under the Australian Citizenship Act 2007.  In any event, any application could now only be dealt with under the Australian Citizenship Act 2007 as the Australian Citizenship Act 1948 has been repealed: see Australian Citizenship (Transitional and Consequential) Act 2007, s 42.

23.     I consider that the delegate of the Minister was correct in declining the application of Ms Ginate under s 29 of the Australian Citizenship Act 2007. Ms Ginate does not qualify under s 29 as she did not cease to be an Australian citizen under the various provisions of the old Act which are referred to in s 29(3) of the Australian Citizenship Act 2007.

24.     Ms Ginate also relies upon s 21(7) of the Australian Citizenship Act 2007.  In my view, her application cannot succeed under that provision as a parent of the applicant had to be born in “Australia” as defined by the Australian Citizenship Act 2007: see s 21(7)((b).  In s 3 of the Australian Citizenship Act 2007, “Australia” is defined to include the external Territories.  At the time of the commencement of the Australian Citizenship Act 2007, Papua had long ceased to be a Territory of Australia.

25.     I am satisfied that Ms Ginate does not qualify for Australian citizenship under any other provision of the Australian Citizenship Act 2007.

CONCLUSION

26.     Ms Ginate ceased to be an Australian citizen on Independence Day.  She lost her “Australian citizenship by operation of law resulting from the effects of State succession”.[8]  I am of the opinion that Ms Ginate does not qualify for Australian citizenship under the Australian Citizenship Act 2007.

[8] Cf., Re Gaigo and Minister for Immigration and Citizenship [2008] AATA 590 at [15] (Hon Dr B H McPherson CBE, Deputy President).

DECISION

27.     I affirm the decision under review.

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

Signed:  ..........................[Sgd]................................................
  Elizabeth Young, Research Associate

Hearing on the Papers              17 September 2008
Date of Decision  6 November 2008