JANE MCCARTHY and MINISTER FOR IMMIGRATION AND CITIZENSHIP

[2009] AATA 887

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2009] AATA 887

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No 2008/3774

GENERAL ADMINISTRATIVE DIVISION		)
Re		JANE MCCARTHY

Applicant

And MINISTER FOR IMMIGRATION AND CITIZENSHIP

Respondent

DECISION

Tribunal Senior Member Bernard J McCabe

Date17 November 2009

PlaceBrisbane

Decision The Tribunal affirms the decision under review.

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

Senior Member

CATCHWORDS

CITIZENSHIP – Resumption of citizenship – whether eligible to resume citizenship – no right to permanent residence – ineligible to resume citizenship – decision affirmed

Australian Citizenship Act 2007 (Cth) s 29

Papua New Guinea

Independence (Australian Citizenship of Young Persons)

Regulations (Cth)

Minister of Immigration and Multicultural and Indigenous Affairs and Walsh [2002] FCAFC 2005; (2002) 125 FCR 31

Re Kondolo and Minister for Immigration, Multicultural and Indigenous Affairs [2004] AATA 867

REASONS FOR DECISION

17 November 2009 Senior Member Bernard J McCabe         

1.      Ms Jane McCarthy, the applicant, was born in 1974 in what was then the Australian territory of Papua. She became an Australian citizen on that date because the territory was deemed to be part of Australia for citizenship purposes. After Papua New Guinea (“PNG”) became independent in 1975, most residents of PNG who previously held Australian citizenship became citizens of PNG and lost their Australian citizenship. Ms McCarthy claims she is entitled to take advantage of one or more exceptions to the general rule. She has applied to resume her Australian citizenship under s 29 of the Australian Citizenship Act 2007. The Minister for Immigration and Citizenship, the respondent, rejected the application. Ms McCarthy has asked the Tribunal to reconsider the matter.

The factual background

2.      There was some confusion over the factual background to this case during the course of the hearing. It became apparent that the parties were proceeding on different factual assumptions. Mr Markwell, counsel for Ms McCarthy, provided some additional information about his client’s background. He also filed two affidavits sworn by her father. I allowed the respondent time to digest and investigate the information and the parties were invited to provide further submissions.

3.      Ms McCarthy was born in Papua in 1974. Her father, Mr John McCarthy, was also born in Papua. Mr McCarthy’s father (the applicant’s paternal grandfather) was an Irish citizen. That turned out to be significant, for Mr McCarthy at least: the Minister acknowledged Mr McCarthy did not lose his Australian citizenship upon PNG independence because he had Irish citizenship by descent and had not renounced that citizenship or made a declaration of loyalty to PNG.

4.      The Minister says the information about Mr McCarthy’s citizenship does not help his daughter. In the reviewable decision, the delegate noted Ms McCarthy did not have a right of residence in Australia. Since she also had three grandparents who were natives, the delegate concluded Ms McCarthy automatically lost her citizenship on the day PNG became independent from Australia. There was nothing more to it.

5.      Ms McCarthy has spent time in Australia at various points in her life. Her father and…