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 her siblings also reside here. She wants to be recognised as an Australian citizen.

The legal arguments

Did ms mccarthy lose her australian citizenship upon png independence?

6.      Mr Markwell says his client did have a right of residence in Australia at the time of independence. In other words, his client was able to demonstrate the “further and better connection with mainland Australia” that I referred to in the course of my reasons in Re Kondolo and Minister for Immigration, Multicultural and Indigenous Affairs [2004] AATA 867. Mr Markwell argued that Ms McCarthy’s right of residence resulted from the fact that her father had a right of residence. Because he was entitled to reside in Australia, his spouse and children had the same right. As Mr Markwell explained in his Amended Statement of Facts and Contentions:

The Applicant was granted her right of Permanent Residence by way of her father. In this regard, the Applicant’s inherent right to Permanent Residence in Australia is derived from the Common Law.

7.      If Ms McCarthy would have been entitled to move to Australia with her father the day before PNG independence, Mr Markwell argues, how could she be said not to enjoy a right of permanent residence at that time?

8.      Unfortunately for Ms McCarthy, that argument was considered and rejected by the Full Federal Court in Minister for Immigration and Multicultural and Indigenous Affairs v Walsh [2002] FCAFC 2005; (2002) 125 FCR 31 at 37-38 per Heerey, Mansfield and Hely JJ. In that case, the applicant’s father was also the holder of “full” Australian citizenship, but the applicant was not entitled to claim permanent residence on that basis alone. Mr Markwell was critical of the reasoning of the Full Court in his submissions. The Tribunal is bound by the Full Court’s decision all the same. It follows Ms McCarthy lost her Australian citizenship on the date of PNG independence.

Is ms mccarthy entitled to resume australian citizenship?

9.      Ms McCarthy had an alternative argument. She claimed she is entitled to resume her Australian citizenship. She relies on the provisions of the Papua New Guinea Independence (Australian Citizenship of Young Persons) Regulations. Unfortunately, the regulations do not assist her. Ms McCarthy would only be able to take advantage of the regulations if she had a right of permanent residence at the time of citizenship. I have already explained that, in light of the decision of the Full Court in Walsh, I am not satisfied the evidence establishes that Ms McCarthy had a right of permanent residence at the relevant time.

Conclusion

10.     The law governing the citizenship of persons who resided in the former Australian territories of Papua and New Guinea prior to the formation of the independent state of PNG is notoriously complex. A strict application of the rules can sometimes lead to hard results. But the rules say what they say. The Minister’s decision was correct. It must be affirmed.

I certify that the 10 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member Bernard J McCabe.

Signed:...............................[Sgd]...............................................
  Michael Buckingham, Associate

Date of Hearing  22 June 2009
Date of Decision  17 November 2009
Counsel for the applicant          Mr W Markwell      
Solicitor for the respondent      Clayton Utz Lawyers