JEANNE YAMUNA and MINISTER FOR IMMIGRATION AND CITIZENSHIP
[2012] AATA 383
•26 June 2012
[2012] AATA 383
Division GENERAL ADMINISTRATIVE DIVISION File Number(s)
2012/0312
Re
JEANNE YAMUNA
APPLICANT
And
MINISTER FOR IMMIGRATION AND CITIZENSHIP
RESPONDENT
DECISION
Tribunal Dr P McDermott, RFD, Senior Member
Date 26 June 2012 Place Brisbane The Tribunal affirms the decision under review.
.................[Sgd]...................................................
Dr P McDermott, RFD, Senior Member
CATCHWORDS
IMMIGRATION AND CITIZENSHIP – Citizenship – Application to resume citizenship – Applicant born in Territory of Papua – Papua and New Guinea independence – Papua New Guinea Constitution – Automatic citizenship of Papua New Guinea – Cease to be Australian citizen – No previous right to permanent Australian residency – Exceptions under Australian Citizenship Act 2007 (Cth) not applicable – Decision under review affirmed
LEGISLATION
Australian Citizenship Act 1948 (Cth) ss 2, 5, 10, 17, 18, 20, 23
Australian Citizenship Act 2007 (Cth) ss 3, 21, 29, 30, 33, 36, 52
Constitution of the Independent State of Papua New Guinea ss 65
Migration Act 1958 (Cth)
Papua New Guinea Independence Act 1975 (Cth)
Papua New Guinea Independence (Australian Citizenship) Regulations 1975 (Cth) reg 4
Papua New Guinea Independence (Australian Citizenship of Young Persons) Regulations 1980 (Cth) reg 2
CASES
Air Caledonie International v Commonwealth (1988) 165 CLR 462
Minister for Immigration and Multicultural Affairs and Indigenous Affairs v Walsh (2002) 125 FCR 31
Re Gaigo and Minister for Immigration and Citizenship [2008] AATA 590
Re Minister for Immigration and Multicultural and Indigenous Affairs; ex Parte Ame (2005) 222 CLR 439
SECONDARY MATERIALS
J. Goldring, (1978), The Constitution of Papua New Guinea: A study in Legal Nationalism
REASONS FOR DECISION
Dr P McDermott, RFD, Senior Member
26 June 2012
INTRODUCTION
Mrs Jeanne Yamuna has made an application to resume Australian citizenship. Her application was refused by a delegate of the Minister. She now seeks a review of that decision by this Tribunal which has jurisdiction to review the decision of the delegate under s 52(1)(d) of the Australian Citizenship Act 2007 (Cth).
In considering this application I have been greatly assisted by the reasons for decision of a Deputy President of this Tribunal who has examined the relevant issues which arise in a case such as this application, including the significance of the Papua New Guinea Independence Act 1975 (Cth). [1]
[1] Re Gaigo and Minister for Immigration and Citizenship [2008] AATA 590 per Deputy President Dr B H McPherson, CBE.
BACKGROUND
Mrs Yamuna was born in 1973[2] in the then Territory of Papua which was then defined to be part of Australia. At the time of her birth, s 5(1) of the Australian Citizenship Act 1948 (Cth)[3] provided that “‘Australia’ includes the Territories of the Commonwealth that are not trust territories”.[4] Papua was not a trust territory. Mrs Yamuna was an Australian citizen by birth. This is because s 10(1) of the Australian Citizenship Act 1948 (Cth) provided that a person born in Australia after the commencement of that Act became an Australian citizen by birth.[5] There are some exceptions to s 10(1) which have no application to this case.
[2] In these reasons, which are a matter of public record, it is not necessary for me to specify the actual date of birth.
[3] This Act was originally titled the Nationality and Citizenship Act 1948 (Cth).
[4] This definition was inserted into the then Nationality and Citizenship Act1948-52 by s 2 of the Nationality and Citizenship Act 1953.
[5] Exhibit A, T-document 5, folio 51.
EFFECT OF INDEPENDENCE
The Constitution of the Independent State of Papua New Guinea, s 65(1), provides that a person born in the country before Independence Day (i.e. 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. Mrs Yamuna had two grandparents who were born in Papua New Guinea.
Section 65(1) of the Constitution of the Independent State of Papua New Guinea, is, by s 65(4) of that Constitution, expressed not to apply to someone 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 Act1948-1975 of Australia or;
(d) is a citizen of a country other than Australia.
I am satisfied that s 65(4) of the Constitution of the Independent State of Papua New Guinea has no application to Mrs Yamuna who did not have a right of permanent residence in Australia. Indeed, prior to Independence Day her status as an Australian citizen did not give her the right to enter and remain on the Australian mainland. The counter statement that was filed on behalf of Mrs Yamuna recognises that “at the time of the passage of the Nationality and Citizenship Act 1948, that Papuans required permission to enter the Australian mainland”.[6]
[6] Exhibit E, p. 6.
There is no documentary evidence which shows that Mrs Yamuna was ever given a right of permanent residence in Australia. It was only some years after Independence Day, in 1984, that Australian citizens finally had the right to reside in Australia.[7] Mrs Yamuna has placed reliance on policy documents which provided that, prior to Independence Day, the right of automatic residence in mainland Australia was automatic for children born in Papua of non-indigenous descent.[8] However, I am bound by a decision of the Full Court of the Federal Court of Australia that policy documents such as these are merely a statement of usual administrative practice and do not have the force of law. [9]
[7] Air Caledonie International v Commonwealth (1988) 165 CLR 462 at 469.
[8] Exhibit 1, T-document 17, folio. 126.
[9] Minister for Immigration and Multicultural Affairs and Indigenous Affairs v Walsh (2002) 125 FCR 31 at [24].
I find that Mrs Yamuna 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. This is because 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 as well as having two grandparents who were born in that country. I also find that the exception in s 65(4) of the Constitution of the Independent State of Papua New Guinea had no application to Mrs Yamuna who never had a right of permanent residence in Australia.
The “counter statement” that was filed on behalf of Mrs Yamuna made the assertion that her parents had “made Declarations of Loyalty to the Independent State of Papua New Guinea on 16 September 1975”.[10] For a number of reasons I am not satisfied that this was the case. Mrs Yamuna in her application to resume Australian citizenship has made the claim that her parents had automatically acquired Papua New Guinea citizenship on Independence Day.[11] No evidence of any declarations was produced in evidence. The procedure of making a renunciation of citizenship and a Declaration of Loyalty was prescribed by s 65(2) of the Constitution of the Independent State of Papua New Guinea to apply to a case where a person “was born outside the country before Independence Day”. It is not plausible that her parents had made such a renunciation and declaration as they were both born in Papua.
[10] Exhibit E, p.4, para 4 “Note”.
[11] Exhibit A, T-document 14, folios 108-109.
CESSATION OF AUSTRALIAN CITIZENSHIP
When Mrs Yamuna became a citizen of the Independent State of Papua New Guinea on Independence Day, she also ceased by operation of Australian law to be an Australian citizen. This cessation of Australian citizenship occurred by virtue of the operation of reg 4 of the Papua New Guinea Independence (Australian Citizenship) Regulations 1975 (Cth). This regulation applies to Mrs Yamuna as immediately before Independence Day she was an Australian citizen, but, on that day, she became a citizen of the Independent State of Papua New Guinea under 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.[12]
[12] (2005) 222 CLR 439.
PAPUA NEW GUINEA INDEPENDENCE (AUSTRALIAN CITIZENSHIP OF YOUNG PERSONS) REGULATIONS 1980
There is no issue that on Independence Day Mrs Yamuna was under the age of 19 years. This raises for consideration the application of reg 2 of the Papua New Guinea Independence (Australian Citizenship of Young Persons) Regulations 1980 (Cth), which was strongly relied upon by Mrs Yamuna. In Minister for Immigration and Multicultural Affairs and Indigenous Affairs v Walsh[13] the Full Court held that reg 2 only has application to a young person who on Independence Day had a right of permanent residence in Australia.
[13] (2002) 125 FCR 31 at 39, [35].
Prior to Independence Day, Mrs Yamuna would have required a permanent or temporary entry permit under the Migration Act 1958 to enter the mainland of Australia.[14] There is no evidence that Mrs Yamuna had such a right of residence in Australia.
[14] Minister for Immigration and Multicultural Affairs and Indigenous Affairs v Walsh (2002) 125 FCR 31 at 35-36 [15]-[21] and cited in Re Minister for Immigration and Multicultural and Indigenous Affairs; ex Parte Ame (2005) 222 CLR 439 at 445.
In Re Minister for Immigration and Multicultural and Indigenous Affairs; ex Parte Ame,[15] 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 Mrs Yamuna last held Australian citizenship, that citizenship did not give her the right to enter the Australian mainland.[16]
[15] (2005) 222 CLR 439.
[16] J Goldring, (1978), The Constitution of Papua New Guinea: A Study in Legal Nationalism, The Lawbook Co. Ltd, p. 204.
As Mrs Yamuna did not, on Independence Day, have a right of permanent residence in Australia, reg 2 has no application to her case. Even if that regulation did apply to Mrs Yamuna (which in my view is certainly not the case) there is an issue as to whether the respondent would have power to approve a person becoming an Australian citizen again having regard to s 30(1A) of the Australian Citizenship Act 2007 (Cth) which provides that:
the Minister must not approve the person becoming an Australian citizen again unless that person is eligible to become an Australian citizen again under subsection 29(2) or (3).
In my view there is no evidence that Mrs Yamuna is eligible to become an Australian citizen again under either subs 29(2) or (3) of that Act.
AUSTRALIAN CITIZENSHIP ACT 2007
Commonwealth legislation has introduced the concept of Australian citizenship and prescribes the method of its application and loss.[17] It is by the operation of the Australian Citizenship Act 2007 (Cth) (“the 2007 Citizenship Act”) that the application of Mrs Yamuna falls to be determined.
[17] Minister for Immigration and Multicultural Affairs and Indigenous Affairs v Walsh (2002) 125 FCR 31 at 35-36, [1].
On 22 April 2010, Mrs Yamuna completed an application to resume her Australian citizenship. This application was made under s 29 of the 2007 Citizenship Act.
Having regard to the operation of s 30(1A) of the 2007 Citizenship Act, in order for Mrs Yamuna to succeed in an application under s 29 of that Act, she must have lost her citizenship under ss 29(2) or 29(3) of that Act..
There is no evidence that Mrs Yamuna lost her citizenship under s 29(2) of the 2007 Citizenship Act. This provision concerns the loss of citizenship under either ss 33 or 36 of that Act. The applicant did not lose her citizenship under the 2007 Citizenship Act; she lost her citizenship on Independence Day, some decades before the passage of the 2007 Citizenship Act.
I am also satisfied that Mrs Yamuna does not come within the ambit of s 29(3)(a) of the 2007 Citizenship Act. This provision concerns the loss of citizenship under various provisions (i.e. ss 17, 18, 20 and 23) of the Australian Citizenship Act 1948 (Cth) (“the 1948 Citizenship Act”) which, in my view, have no application to Mrs Yamuna.[18]
[18] Section 29(3) of the 2007 Citizenship Act refers to the “old Act”. Section 3 of the 2007 Citizenship Act defines the 1948 Citizenship Act as “the old Act”.
I give my reasons why Mrs Yamuna did not lose her Australian citizenship under either ss 17, 18, 20 or 23 of the 1948 Citizenship Act. In my view she lost her Australian citizenship by the operation of reg 4 of the Papua New Guinea Independence (Australian Citizenship) Regulations 1975 (Cth). At that time s 17 of the 1948 Citizenship Act only had application to the loss of citizenship by an Australian citizen of “full age and capacity”: this provision could have no application to Mrs Yamuna who was then a child. Section 18 of the 1948 Citizenship Act also, in my view, has no application as the provision refers to the loss of citizenship by a person who, after attaining the age of eighteen years, made a declaration renouncing his or her Australian citizenship: Mrs Yamuna, who lost her Australian citizenship before she attained the age of eighteen years, made no such declaration. Section 20 of the 1948 Citizenship Act could have no application to Mrs Yamuna as this provision was repealed in 1958[19] long before she was born. Section 23 of the 1948 Citizenship Act also can have no application to Mrs Yamuna as the provision only applies where the responsible parent of a child ceases to be an Australian citizen under section 17, 18 or 19 of that Act: this is certainly not the case here.
[19] Nationality and Citizenship Act 1958, s 6.
As Mrs Yamuna is unable to satisfy either subs 29 (2) or (3) of the 2007 Citizenship Act, her application cannot, in my view, succeed.
For the sake of completeness I should also refer to s 21(7) of the 2007 Citizenship Act, which enables certain persons who were born in Papua before Independence Day to become Australian citizens. However, to qualify under that provision an applicant must have a parent who is born in Australia (within the meaning of the 2007 Citizenship Act at the time the person made the application). Mrs Yamuna did not have a parent who was born in Australia as defined by s 3 of the 2007 Citizenship Act as Papua had ceased to be a Territory some decades before the passage of the 2007 Citizenship Act.
DECISION
I affirm the decision under review.
I certify that the preceding 23 (twenty -three) paragraphs are a true copy of the reasons for the decision herein of Dr P McDermott, RFD, Senior Member. ............[Sgd]...............................................
Associate
Dated 26 June 2012
Date(s) of hearing 6 June 2012 Advocate for the Applicant Maxwell Tabua Solicitor for the Respondent Masothy Yin
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