Kondolo and Minister for Immigration, Multicultural and Indigenous Affairs
[2004] AATA 867
•19 August 2004
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2004] AATA 867
ADMINISTRATIVE APPEALS TRIBUNAL )
) No Q2003/452
GENERAL ADMINISTRATIVE DIVISION ) Re MOLLY KONDOLO Applicant
And
MINISTER FOR IMMIGRATION, MULTICULTURAL AND INDIGENOUS AFFAIRS
Respondent
DECISION
Tribunal Senior Member McCabe Date19 August 2004
PlaceBrisbane
Decision The Tribunal remits the decision under review for reconsideration in light of these reasons.
....................[Sgd].....................
Senior Member
CATCHWORDS
IMMIGRATION AND CITIZENSHIP – applicant was infant on date of PNG independence – applicant had right of permanent residence in Australia on PNG independence – applicant’s parents renounced right to permanent residence in Australia within 2 months of PNG independence – whether parents also renounced applicant’s right – whether applicant lost Australian citizenship – decision set aside
Australian Citizenship Act 1948 ss 10(1), 11(1), 18, 23, 23B
Papua New Guinea Independence Act 1975 ss 4,6
Papua New Guinea (Australian Citizenship of Young Persons) Regulations 1980 reg 2
Constitution of the Independent State of Papua New Guinea ss 64, 65
Citizenship Act 1975 (PNG)
Minister for Immigration and Multicultural and Indigenous Affairs v Walsh (2002) 125 FCR 31
REASONS FOR DECISION
19 August 2004 Senior Member McCabe 1. This is an application for review of a decision of the respondent dated 5 May 2003. A delegate of the respondent refused the applicant’s application for resumption of Australian citizenship pursuant to s 23B of the Australian Citizenship Act 1948.
2. The matter was heard on 8 April 2004. The applicant was represented by Ms Dindillo, who appeared by telephone from Northern Queensland. The respondent was represented by Mr Gallo. The Tribunal was provided with the documents submitted pursuant to s 37 Administrative Appeals Tribunal Act 1975. The respondent also submitted a supplementary set of s 37 documents. The applicant tendered two documents: a letter from the Department of Works in PNG, and a letter from the National Archives Service in PNG. Both letters are statements from those departments to the effect they were unable to locate the file of Mr Anthony Sariman, the applicant’s father.
3. The applicant’s case before the Tribunal was presented on the assumption that she had lost her Australian citizenship when PNG became independent. As the
hearing progressed, a different picture emerged. It became apparent there was a real issue over whether the applicant ever lost her Australian citizenship. I invited the parties to make further submissions to assist me, but I did not receive any.
4. After carefully examining the relevant legislation and the Federal Court’s decision in Minister for Immigration and Multicultural and Indigenous Affairs v Walsh (2002) 125 FCR 31, I conclude the applicant has never lost her Australian citizenship. She is therefore presumably entitled to enter and reside in this country: see Air Caledonie International v Commonwealth (1988) 165 CLR 462. I will explain the reasons for my conclusion below.
The Facts
5. The applicant is a member of a large family. She was born in Port Moresby on 25 April 1973. Her grandparents, parents and her brothers and sisters were also born in PNG. Most of the applicant’s siblings are older than her: she is the eleventh child. She currently resides in PNG.
6. The s 37 documents include an open “letter of authority” dated 3 July 1967 addressed to “Whom It May Concern” signed by the Acting Comptroller of Customs, an official of the Commonwealth Department of Trade and Industry (T9 f50 of the T documents). The letter says:
This is to certify that Agnes SARIMAN [the applicant’s mother], born on 15th November, 1936 at Sogeri, Papua, whose signature appears below and her seven children…are Australian citizens and are authorised to enter Australia for permanent residence vide memorandum 66/34586 from the Secretary, Department of Immigration
7. The letter was necessary because residents of Papua were not entitled to enter mainland Australia: see Walsh at 36 per Heerey, Mansfield and Hely JJ.
8. The respondent was unable to locate the memorandum referred to in the letter. It is therefore impossible to ascertain the basis upon which the applicant’s mother and her siblings were authorised to reside in Australia. It is possible they were authorised to accompany the applicant’s father, who is not mentioned in the document. (I gather from evidence presented at the hearing he was authorised to enter Australia in 1967). The applicant is not named in the letter; it was written before she was born. In the absence of evidence suggesting the authority was withdrawn prior to the applicant’s birth or that it only applied to the persons named in the document, I assume she would have become entitled to permanent residency at birth on the same basis as her older brothers and sisters.
9. Papua New Guinea became independent on 16 September 1975. Prior to independence, PNG was an Australian territory. About a month after Independence the applicant’s parents – Agnes and Joseph Sariman – each signed a paper entitled “Renunciation of right to permanent residence in Australia or of foreign citizenship” (the renunciation document). They thereby acquired citizenship of PNG. (I will discuss below the legislative provisions that made them PNG citizens.)
10. The renunciation document says the signatory agrees to:
Hereby renounce that right to permanent residence in Australia or that nationality or citizenship and any other nationality or citizenship rights and privileges arising out of it and state that I consider myself to be a citizen of Papua New Guinea.
11. Neither parent expressly renounced citizenship on behalf of their children. A letter from the PNG chief migration officer acknowledging the renunciation is found in the T documents at T9 f51.
12. On 18 October 2002, the applicant applied to resume her Australian citizenship under s 23B of the Act. The respondent refused the application. She has now applied to this Tribunal for review of that decision.
The Legislative Framework
(i) Australian citizenship prior to independence
13. The Tribunal must consider several pieces of legislation in order to resolve the dispute. The first of these is the Australian Citizenship Act 1948. The Act says Australian citizenship may be acquired by birth, adoption, descent or grant. Section 10(1) says a person born in Australia after the commencement of the Act is an Australian citizen by birth. “Australia” was defined at the relevant time as including the Territory of Papua: s 5. Since the applicant was born in Papua while it was an external territory of Australia, she was an Australian citizen by birth: see Walsh at 33-34 per Heerey, Mansfield and Hely JJ.
14. Papua became part of the independent nation of PNG and ceased to be a Territory of Australia on 16 September 1975: s 4 of the Papua New Guinea Independence Act 1975.
(ii) The effect of independence on australian citizenship
15. Section 65 of the Constitution of PNG provides:
(1) A person born in the country before Independence Day who has two grandparents who were born in the country or adjacent area is a citizen…
(2) A person born outside the country before Independence Day who has two grand-parents born in the country is a citizen as from Independence Day if—
(a)within one year after Independence Day or such longer period as the Minister responsible for citizenship matters allows in a particular case, application is made by him or on his behalf for registration as a citizen; and
(b) he renounces any other citizenship and makes the Declaration of Loyalty—
(i) if he has not reached the age of 19 years—in accordance with Section 64(2) (dual citizenship); or
(ii) if he has reached the age of 19 years—at or before the time when the application is made.
(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).
(5) A person to whom Subsection (4) applies may, within the period of two months after Independence Day and in such manner as may be prescribed by or under an Act of the Parliament, renounce his right to permanent residence in Australia or his status as an Australian citizen or as a citizen of another country and make the Declaration of Loyalty.
16. Section 65 was mirrored by regulations made pursuant to s 6 of the Papua New Guinea Independence Act 1975. Regulation 4 of the Independence Regulations says:
A person who-
(a)immediately before Independence Day, was an Australian citizen within the meaning of the Act; and
(b)on Independence Day becomes a citizen of the Independent State of Papua New Guinea by virtue of the provisions of the Constitution of the Independence State of Papua New Guinea,
ceases on that day to be an Australian citizen.
17. The Full Federal Court explained the effect of Regulation 4 in Walsh. When read with s 65 of the PNG Constitution, the regulation terminated the Australian citizenship of those born in Papua whose sole claim to Australian citizenship was their place of birth. It preserved the citizenship of those who had a further or different connection with Australia unless those persons renounced that connection pursuant to s 65(5) of the Constitution of PNG.
(III) Special arrangements for young people
18. In 1980, the Commonwealth Parliament passed Papua New Guinea (Australian Citizenship of Young Persons) Regulations 1980. Those regulations were deemed to take effect from 16 September 1975. Regulation 2 provides:
A person who on Independence Day –
(a) was under 19 years of age;
(b) was not for the purposes of section 64 of the Constitution of the Independent State of Papua New Guinea a person who was never granted a right (whether revocable or not) to permanent residence in Australia; and
(c) ceased to be an Australian citizen,
shall be deemed to have re-acquired his Australian citizenship on that day.
19. It will be necessary to consider in due course whether the applicant is able to rely on the Papua New Guinea (Australian Citizenship of Young Persons) Regulations 1980.
20. If the applicant can show she had a “further or different connection” with Australia – such as a right to permanent residence – she might avoid the effect of s 65 of the PNG Constitution and Regulation 4 of the Independence Regulations which deem her to have lost Australian citizenship. In other words, if she can show her citizenship was not renounced on her behalf by her parents, she will not need to rely on the Papua New Guinea (Australian Citizenship of Young Persons) Regulations 1980.
(IV) Section 23 of the Australian Citizenship Act 1948
21. Section 23 of the Australian Citizenship Act 1948 deals with some of the consequences for a child that flow from a parent’s loss of citizenship. If a parent renounces his or her Australian citizenship in accordance with s 18, s 23 says the child also ceases to be a citizen. (Section 23 also deals with the loss of citizenship pursuant to other sections, but they are not relevant here). Section 18(1) says:
Where a person is an Australian citizen and:
(a) has attained the age of 18 years and is a national or citizen of a foreign country; or
(b) was born, or is ordinarily resident, in a foreign country and is not entitled, under the law of that country, to acquire the nationality or citizenship of that country by reason that the person is an Australian citizen;
the person may lodge with the Minister a declaration in the prescribed form renouncing the person's Australian citizenship.
22. I note Ms Kondolo’s parents did not provide a declaration in the prescribed form to any Australian officials. The declarations in the T documents were provided to the PNG government after independence pursuant to the PNG Constitution and the Citizenship Act 1975 (PNG). Their receipt is acknowledged in a letter dated 9 October 1975 from the Chief Migration Officer of the Migration and Citizenship Branch of the newly-formed PNG (T9, f51). The letter is addressed to Anthony Joseph Sariman (the applicant’s father). The document says:
Dear Sir/Madam,
I acknowledge receipt of completed form FR&T 80 “Renunciation of Right to Permanent Residence in Australia or of Foreign Citizenship” in respect of your wife and self.
23. The declaration provided to the PNG authorities invites careful scrutiny. In it, the applicant’s parents renounced their foreign citizenship and their right to permanent residency in Australia. It was lodged within two months of PNG Independence.
The Applicant’s Argument
24. The applicant says she either remains an Australian citizen, or she is entitled to resume Australian citizenship. She says the renunciation papers her parents signed did not affect her right to permanent residence. She notes the renunciation papers do not expressly say the signatory agrees to renounce the right to permanent residence or citizenship of the signatory’s children.
The Respondent’s Argument
25. The respondent says the applicant became a citizen of PNG on independence by virtue of s 65 of the PNG Constitution. The Minister argues the Papua New Guinea Independence (Australian Citizenship) Regulations 1975 (the Independence Regulations) provide the applicant ceased to be a citizen of Australia on 16 September 1975. In the alternative, the Minister says the renunciation papers effectively renounce the applicant’s citizenship. The Minister adds the applicant is not entitled to apply to resume Australian citizenship under the Papua New Guinea (Australian Citizenship of Young Persons) Regulations 1980 because she did not make her application prior to her 19th birthday.
Application of the Law to the Facts
26. Ms Kondolo’s parents became citizens of PNG at the time of independence pursuant to s 65(1) of the PNG Constitution. That occurred notwithstanding their right to permanent residence in Australia because they renounced that right within two months of independence pursuant to s 65(5).
27. Where does that leave Ms Kondolo? She was an infant at the time. For reasons I have already explained, she was entitled to permanent residence in Australia on 16 September 1975. In other words, her claim to Australian citizenship rested on more than her place of birth. She had a further and better connection with mainland Australia at the time of independence, unlike the applicant in Walsh. The connection is recognised in the letter from the Acting Comptroller of Customs. (I have already noted the letter does not refer to the applicant by name because she had not been born at that time it was written, but I was not shown any evidence to suggest she should be treated any differently from her older siblings.) Her parents’ claim may have subsequently been affected when they renounced – in a document provided to the PNG authorities – their Australian citizenship and right to permanent residence, but I do not think that makes any difference. Section 65 of the PNG Constitution contemplates that a revocable right of permanent residence in mainland Australia in existence on Independence Day still prevented the holder of that right from automatically losing Australian citizenship and acquiring PNG citizenship.
28. Did her parents’ renunciation of Australian citizenship and right to permanent residence in Australia have the effect of renouncing the applicant’s citizenship? If it did have that effect, she would also be deemed to have become a PNG citizen by operation of s 65(5).
29. If the applicant’s parents had renounced their citizenship to the Australian authorities in the manner contemplated in s 23 of the Australian Citizenship Act 1948, it is clear the applicant would have lost her citizenship because she is their dependent child. But that did not occur. Mr and Mrs Sariman (the applicant’s parents) renounced their Australian citizenship and their right to permanent residence in this country to the PNG authorities after independence for the purposes of obtaining PNG citizenship. They did not make a declaration to the Australian authorities in the prescribed form, so s 23 of the Australian legislation does not operate to strip the applicant of her citizenship on the basis that her parents have renounced their rights. Nor do I think the renunciation documents had the effect of terminating their right to permanent residence in Australia. That right might subsequently have lapsed, but we cannot be sure in the absence of any documents.
30. I am not aware of a provision in the PNG legislation that has the same effect as s 23 of the Australian Citizenship Act 1948. In the absence of such a provision, the renunciation of a right to citizenship by the applicant’s parents in October 1975 has no effect on the applicant’s status. I note s 74 of the PNG Constitution provides that the Minister may strip a child of his or her citizenship if the child’s parents lose their PNG citizenship, but it is clear that process does not occur automatically in the way it does in s 23 of the Australian Citizenship Act 1948. Section 72 provides an adult may renounce their citizenship, but there is no indication that he or she may do so on behalf of a child.
31. I also note the effect of s 64 of the PNG Constitution. It says a PNG citizen may not hold dual citizenship. If he or she has a real foreign citizenship within the meaning of s 64, he or she cannot be or become a citizen of PNG. The expression real foreign citizenship is defined in s 64(4) to exclude citizenship of Australia that was:
§acquired prior to independence,
§based on one’s place of birth and
§does not involve a right to permanent residence.
A person in that position would ordinarily be deemed to have acquired PNG citizenship on Independence Day by reason of s 65(1). Sub-sections 64(2) and (3) create an exception for young persons who may hold dual citizenship, but they must make an election by their 19th birthday. If they fail to make the appropriate choice, they cease to be citizens of PNG.
32. I think the provisions of the constitution mean Ms Kondolo has never held PNG citizenship. She apparently had a right to permanent residence in Australia at the time of independence. That right may or may not have been lost subsequently, but that is beside the point. She remains an Australian citizen, and is now entitled to enter Australia. She does not need to take steps to reacquire her Australian citizenship.
Conclusion
33. Steps were taken at the time of PNG independence to ensure persons who were formerly assumed to be Australians would acquire citizenship of the newly-independent country in which they lived. But the law recognised that not everyone born or residing in PNG should necessarily lose their Australian citizenship. Those with a further or better connection with this country at the time of independence were entitled to retain their citizenship unless it was renounced.
34. The Tribunal should be cautious in cases such as this. Australian citizenship is a thing of extraordinary value. That is why so many people desire it. A person should only be taken to have been deprived of his or her citizenship where there is a clear legislative intent to do so. Ms Kondolo is not clearly caught by any of those laws. The caution to which I refer also explains why I think it is appropriate to give the applicant the benefit of the doubt when considering whether she should be taken to have the same right of permanent residence as her older siblings referred to in the letter from the Acting Comptroller of Customs.
35. Ms Kondolo is an Australian citizen, and has been since birth. She did not lose her citizenship upon PNG independence or as a result of any other law. The respondent was therefore technically correct to refuse Ms Kondolo’s application for resumption of Australian citizenship. I remit the decision under review to the respondent for reconsideration in light of these reasons.
I certify that the 35 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member McCabe
Signed: [Sgd]
Associate: Thomas RitchieDate of Hearing: 8 April 2004.
Date of Decision: 19 August 2004.
The applicant was represented by Mr Dindillo.
The respondent was represented by Mr Gallo.
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