Korokan and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Citizenship) - [2022] AATA 198

Korokan and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Citizenship) [2022] AATA 198 (11 February 2022)
Division:GENERAL DIVISION
File Number: 2021/3226
Re:Martin Korokan
APPLICANT

AndMinister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
RESPONDENT

DECISION
Tribunal:Senior Member D. J. Morris
Date:11 February 2022
Place:Melbourne

The Tribunal affirms the decision under review, that the Applicant is not eligible for Australian citizenship by descent under section 16(2)(a) of the Australian Citizenship Act 2007 and cannot be approved under section 17(1A) of the same Act.
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Senior Member D. J. Morris
Catchwords
CITIZENSHIP – applicant seeks citizenship by descent – applicant is citizen of Papua New Guinea – claim that parents were Australian citizens by virtue of being born in Territory of Papua – delegate refuses application on basis not satisfied a parent was Australian citizen at time of applicant’s birth – delegate also not satisfied of identity of applicant – constitutional history of Papua New Guinea – consideration of documents of applicant – applicant’s parents not born in Papua – parents born in New Guinea - parents became Papua New Guinea citizens at Independence – applicant born after Independence – fatal to application for citizenship by descent – not necessary to consider whether satisfied of identity of applicant – observations on personal documents provided – decision under review affirmed
Legislation
Administrative Appeals Tribunal Act 1975 (Cth), ss 33A, 37
Australian Citizenship Act 1948 (Cth)
Australian Citizenship Act 2007 (Cth), ss 16, 17, 52
Australian Citizenship (Transitionals and Consequentials) Act 2007 (Cth), Sch 2
British Nationality Act 1948 (UK)
British Settlements Act 1887 (Imp)
Constitution of the Independent State of Papua New Guinea (PNG), ss 64, 65
Migration Act 1958 (Cth)
Nationality & Citizenship Act 1948 (Cth)
New Guinea Act 1920 (Cth)
Papua Act 1905 (Cth)
Papua and New Guinea Act 1949 (Cth)
Papua-New Guinea Provisional Administration Act 1945 (Cth)
Papua New Guinea Act 1971 (Cth)
Papua New Guinea Independence Act 1975 (Cth)
Papua New Guinea Independence (Australian Citizenship) Regulations 1975 (Cth), r 4
Royal Titles Act 1901 (UK)
Cases
Briginshaw v Briginshaw (1938) 60 CLR 336
Drake and Minister for Immigration and Ethnic Affairs (No. 2); Re (1979) 2 ALD 634
Mahuru and Department of Immigration and Citizenship; Re [2008] AATA 464
Minister for Immigration & Multicultural & Indigenous Affairs v Walsh [2002] FCAFC 205
Secondary Materials
Department of National Development; Division of National Mapping – Territory of Papua and New Guinea (1970) 1:250 000 – NMP 65-138, Sheet 9202
Kerr, Alan; A Federation in These Seas – An account of the acquisition by Australia of its external territories, with selected documents; Attorney-General’s Department; Canberra (2009)
Smithers, The Hon. Mr Justice; ‘Law and The Territory of Papua and New Guinea’;(1963) 4(2) Melbourne University Law Review 212
Treaty of Peace between the Allied and Associated Powers and Germany, the Protocol annexed thereto, the Agreement respecting the military occupation of the territories of the Rhine, and the Treaty between France and Great Britain respecting Assistance to France in the event of unprovoked aggression by Germany. Signed at Versailles on 28 June 1919, came into force on 10 January 1920 [1920] ATS 1
REASONS FOR DECISION
Senior Member D. J. Morris
11 February 2022
BACKGROUND

The Applicant in this matter, Mr Martin Korokan, is a citizen of the Independent State of Papua New Guinea. On 1 November 2020, he lodged an application for Australian citizenship by descent with the Department of Home Affairs (‘the Department’), using an on-line form. In the form he asserted that his parents were Australian citizens by virtue of them being born in the (then) Territory of Papua, his father in 1920 and his mother in 1930. Mr Korokan stated in the form that he was born in May 1978 in Wabag, Enga Province, in Papua New Guinea.
On 17 May 2021, a delegate of the Respondent, the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs, refused Mr Korokan’s application under section 17(1A) of the Australian Citizenship Act 2007 (‘the Act’). The delegate found that the Applicant did not have an Australian citizen parent at the time of birth, which is a requirement of section 16(2)(a) of the Act for citizenship by descent. The delegate further found that they were not satisfied of Mr Korokan’s identity, so therefore must not approve his application under section 17(3) of the Act.
On 19 May 2021, Mr Korokan sought review of that decision before the Tribunal. His right to do so is found in section 52(1)(a) of the Act.
HEARING
A hearing was held on 1 February 2022 by video link, as is permitted under section 33A of the Administrative Appeals Tribunal Act 1975 (‘the AAT Act’), and owing to the current public health emergency. Mr Korokan, representing himself, made submissions and was cross-examined by Mr Keith Sypott of The Australian Government Solicitor, representing the Respondent.
The Tribunal took into evidence the following documents submitted by the parties:
(a)Volume of ‘TD’ documents lodged by the Respondent under section 37 of the AAT Act (Exhibit R1);
(b)Volume of supplementary documents lodged under section 38AA of the AAT Act (Exhibit R2);
(c)Respondent’s lodged bundle of documents (Exhibit R3);
(d)Screenshot of Applicant’s current visa details (Exhibit R4);
(e)Movement record of the Applicant (Exhibit R5);
(f)Email of Applicant to Tribunal Registry, dated 17 June 2021 (Exhibit A1)
(g)Photograph A – family burnt alive, lodged 17 June 2021 (Exhibit A2);
(h)Photograph B – tribesman slain, lodged 17 June 2021 (Exhibit A3);
(i)Photograph C – Burial of tribesmen slain, lodged 17 June 2021 (Exhibit A4);
(j)Applicant’s certificate from Chinese Ministry of Commerce, dated 1 July 2014 (Exhibit A5);
(k)Applicant’s certificate – South Korea Economic Development for Developing Countries, dated 5 September 2011 (Exhibit A6);
(l)Applicant’s 13 October 2021 email to Tribunal re: s 16(3)(b) of the Act (Exhibit A7);
(m)Applicant’s Papua New Guinea driver licence, expiry 7 August 2020 (Exhibit A8);
(n)Applicant’s bank statement, dated 19 October 2020 (Exhibit A9);
(o)Applicant’s 2017 superannuation statement (Exhibit A10);
(p)Writ of summons between Applicant and another party, dated 21 April 2017 (Exhibit A11);
(q)Bundle – Applicant’s Papua New Guinea passport; cheque from Department of National Planning and Monitoring, dated 30 June 2014 (Exhibit A12);
(r)Applicant’s email to Tribunal, dated 26 October 2021 (Exhibit A13);
(s)Statement of Shane Degen, dated 21 October 2021 (Exhibit A14);
(t)Bundle of supporting evidence – part 1 (Exhibit A15);
(u)Bundle of supporting evidence – part 2 (Exhibit A16);
(v)Applicant’s registration as a nurse, dated 9 March 2001 (Exhibit A17);
(w)Opening Address to the Law Society of New South Wales Young Lawyers’ Conference, 20 October 2017: ‘The Rule of Law and Reconciliation’. The Hon. Justice Jagot (Exhibit A18); and
(x)Email to Tribunal dated 1 February 2022 forwarding email of Applicant to Papua New Guinea’s Registry of Births, dated 21 November 2021 (Exhibit A19).
The Applicant also submitted a written Statement of Facts on 23 October 2021, and the Respondent submitted a written Statement of Facts, Issues and Contentions dated 18 November 2021, both of which were taken into account.
ISSUES
At the commencement of the hearing, the Tribunal noted that the Respondent submitted that the two questions to be considered are as follows:
(a)Was a parent of the Applicant an Australian citizen at the time of his birth, such that he satisfies section 16(2)(a) of the Act?
(b)Is the Tribunal, standing in the shoes of the Minister, satisfied of the Applicant’s identity, as required by section 17(3) of the Act?
Mr Korokan agreed that these were the two questions in issue.
Applicant’s opening submission
Mr Korokan referred to a speech given by Justice Jagot (Exhibit A18) as forming the basis of his argument. He said that his tribe has been in existence for more than 65,000 years in common with the rest of the Aboriginal tribes of Australia. He said that on 26 January 1788, others came into Australia and it is an injustice for him not to be given citizenship.
In response to a direct question from the Tribunal as to whether he was claiming to be indigenous, Mr Korokan said that he was. In response to a further question from the Tribunal as to whether he contended that one or both of his parents was an Australian citizen at the time of his birth, Mr Korokan said he was. He submitted that Australian citizenship only came into law in 1948 and that “from 1901 to 1975 my people were part and parcel of Australia.”
Mr Korokan said that his parents, together with many others in the area in which he was born, were against independence, that there was no referendum held to gauge national opinion, and noted that his local Member of Parliament became the first Leader of the Opposition in the first National Parliament of Papua New Guinea.
Regarding the issue relating to his identity, Mr Korokan said that he had submitted a large number of documents to the Tribunal, including documents of the National and Supreme Courts of Papua New Guinea, to which he said proper regard should be had. He further submitted that he has submitted his Papua New Guinea driver licence and his State of Victoria driver’s licence, and that the personal details match.
Applicant’s oral evidence
Mr Korokan said his full name was Martin Korokan and he was born on a named date in September 1978. When asked whether he had any middle or other name, he said that “some in the village call me other names like Lomeyari”, which is a tribal name linked to his family land.
Mr Korokan said he was born in Wabag in Papua New Guinea, which he explained is in Enga Province, an area which was formerly Western Highlands District, before independence.
Mr Korokan said his father’s full name was Korokan Lomeyari: “He went by other names, but that’s the one I use. When someone is killed, we don’t use the name again”. Other names that the Applicant said his father was known by include Korokan Elapae and sometimes Lomeyari. Mr Korokan said that not long before his father died, he expressed the desire to have a Christian baptism, and he was given the name “Arnold” as a baptismal name.
Mr Korokan said that his father was born in March 1920. Mr Sypott noted that in his application for citizenship, Mr Korokan had recorded his father’s date of birth as a named day in March 1920, which the Applicant confirmed was correct.
In respect of his mother, Mr Korokan said her name was Elizabeth Lespis Noah. She was sometimes called Minamal. He explained that Minamal was an alternative family name.
Mr Sypott asked the Applicant whether his mother had ever been known by any other names. He responded: “Pepenwan. Sometimes when people are baptised, they change it, which is what she did”. The Tribunal queried whether he meant that she took on Elizabeth as a baptismal name as an infant, which Mr Korokan confirmed.
Mr Korokan said that his mother was also born in Wabag in Papua in May 1930.
Mr Sypott asked the Applicant whether he was aware of either of his parents having a right of permanent residence in Australia. He said: “My father worked for the Australian administration as a medical…nowadays they call it district administration”. Mr Korokan clarified that his father worked in the local medical administration, as did his mother.
Mr Sypott asked if either of his parents had ever been to Australia. Mr Korokan responded: “I don’t know. Because of their work, they moved from place to place. They must have come to mainland Australia.”
Mr Sypott asked whether the Applicant knew whether his parents ever applied for Australian citizenship. He replied: “I’m not sure. They wanted to remain Australian and voted against it. That’s what I was told. Australia just gave independence with no referendum.”
Mr Sypott noted that the identity documents Mr Korokan had provided all date from 2008 onwards and asked why he had not provided any documents from the first 30 years of his life. Mr Korokan responded: “I was still a child in the custody of my parents and guardians. In Papua New Guinean culture, a person is still classed as a child until he is married, doesn’t become an adult at 18 as here.”
The Tribunal asked Mr Korokan where he attended school. He said he went to Wabag Primary School and then Wabag High School. When asked directly whether he had school reports or the results of tests from that time, he replied:
They got burnt. My parents’ house burnt down. Since 1980 I have experienced death, as you can see from the photos I have provided. I don’t want to go back. The records of my primary and secondary school were all lost. The school office was burnt down.
Mr Sypott asked whether he had contacted the schools to see if they have records. Mr Korokan said that the schools do not keep records.
The Tribunal asked Mr Korokan whether, apart from the local schools, he had contacted the Education Department. The Applicant responded that he had not, but that it was possible that the Education Department in Port Moresby could provide some records.
Mr Korokan said he had jobs in Papua New Guinea and had provided references, noting he was a registered nurse since “2011”. He said that he worked at Catholic health centres and while they did not provide payslips, they did provide a letter about his employment.
Mr Sypott noted that Mr Korokan had provided two birth certificates, one an extract of records dated 2017 and the other an extract of records dated 2008. He responded: “Yes, the 2017 one is incorrect. I have emailed and asked them to correct it.”
Mr Korokan was referred to the 2017 document (TD, p 119) and asked in what way was it incorrect. He said that the year of birth (which is rendered as ‘1968’) is wrong, as is his surname (which is rendered as ‘Lomeyari’). He said: “It should be consistent with the other one. I told the people in the Registry that it should be the same as the 2008 one. They were supposed to migrate into the new system, which they failed to do.”
Mr Korokan was asked how he obtained the 2017 document. He said he went with his uncle to the Port Moresby Registry of Births to get it, but then corrected his evidence to say that he thinks he went by himself to get it, but his uncle told him what to do.
Mr Sypott asked Mr Korokan whether he knew the information was incorrect but was it the case that he did not correct it out of respect for his uncle who had advised him on obtaining the document. Mr Korokan confirmed that both were the case.
Mr Korokan told the Tribunal he emailed the Port Moresby Registry of Births (Exhibit A19) when he realised the inconsistency in the two birth certificates was causing difficulties, but he did not get a response. He said he emailed the Registry again in December 2021. He said he obtained the names of the people he should contact from a Papua New Guinea Government website.
The Tribunal noted that both his parents were described, in both the 2008 and 2017 documents, as “subsistence farmers”; he said that they had moved into this occupation after their time working on the medical support staff of the district administration.
Mr Korokan said that his wife and his two children were with him in Australia. He said that he has two sisters who live in Papua New Guinea, one being older and one being younger.
The Tribunal noted that his father was born in 1920. Mr Korokan said that his father died in 2003. When asked whether his mother was still alive, he responded: “No, she passed away in 2001 or 2002. My uncle who helped me died in 2019.”
The Tribunal noted that at the time of his birth his mother was aged around 47 or 48. Mr Korokan replied: “Yes. Both had been married to other people. That is why I was born at a later age.”
When asked how he knew the birth dates of his parents and whether he had seen their birth certificates, he replied: “No. They told us, and my uncle told me.”
Mr Korokan said that his sisters live in Wabag but that they were half-sisters, in that he shared one common parent with them.
Applicant’s closing submissions
Mr Korokan said that he comes from a clan or tribe. He told the Tribunal that the Papua New Guinea Government is trying to acquire some land he owns in Wabag to establish a Highlands Fisheries College and that he had tentatively agreed to the sale.
Mr Korokan told the Tribunal that his tribe has been in existence for some 65,000 years. He noted that recently he had read that 16,000 people had been granted citizenship from countries across the world and submitted that it was unfair that he could not get citizenship and then contribute, as he wants to do, to the public health of indigenous people.
The Tribunal clarified to Mr Korokan that the figure he had read would possibly include grants of citizenship by conferral, which he acknowledged.
In response to queries from the Tribunal, Mr Korokan said that he currently holds a Student Temporary (Class TU) (Subclass 500) visa and is undertaking research at Deakin University which will lead to a doctorate of philosophy. He told the Tribunal that he is a registered nurse in Papua New Guinea, and is in the process of applying to be registered as a nurse in Australia.
Respondent’s closing submissions
The Respondent submitted that Mr Korokan does not meet the eligibility criterion in section 16(2)(a) of the Act, which is essential for his application to succeed. Mr Sypott further submitted that the Tribunal cannot be satisfied of the Applicant’s identity.
In regard to Mr Korokan’s submission that his eligibility falls within section 16(3) of the Act, Mr Sypott submitted that is misconceived because the Applicant was not born before 26 January 1949.
Mr Sypott submitted that the Respondent does not dispute the birth years of the Applicant’s parents; and that the Respondent also does not dispute that his parents might have acquired Australian citizenship by force of the 1948 Act. However, he submitted that the Minister’s contention is that his parents’ Australian citizenship terminated on 16 September 1975 when Papua became part of the new nation of Papua New Guinea.
Mr Sypott noted that section 65(1) of the Papua New Guinea Constitution means that, essentially, the termination of Australian citizenship to persons in the category of the Applicant’s parents does not apply where the person had the right to reside in Australia permanently. But there was no evidence from the Applicant that they did, and a search of Department files has found no evidence of permanent visas or an application for citizenship made by Mr Korokan’s parents.
Mr Sypott noted the Full Federal Court decision in Minister for Immigration & Multicultural &Indigenous Affairs v Walsh [2002] FCAFC 205 (‘Walsh’) which said that the effect of regulations made under the Papua New Guinea Independence Act 1975 (Cth) was to terminate Australian citizenship for residents in Papua New Guinea who became citizens of the new country on independence.
In respect of Mr Korokan’s identity, Mr Sypott noted that the Applicant has provided no documents for the first 30 years of his life. He said while it may be accepted that cultural practices in the Applicant’s home area might have affected how people were treated until they married, it was inconceivable that the Applicant’s “life story” began when he was 30. Mr Sypott noted the inconsistency in the two birth certificates, and that Mr Korokan had nonetheless still provided them to the Department, with the inconsistency.

Mr Sypott said that he noted that Mr Korokan had recently tried to correct the inconsistency in the two birth records, and conceded that 1978 does seem to be the correct year of the Applicant’s birth.
Applicant’s submission in reply
Mr Korokan said he attended school in Wabag and had classmates and old teachers who are still there and could attest to his time there. He said that he did provide references to when he was studying grades 11 and 12 at a seminary school run by the Roman Catholic Church. Mr Korokan said that after completing his secondary schooling, he went to an Adventist college to do nursing training, and he has provided evidence of that.
CONSIDERATION
At the outset, to provide some of the historical background relevant to Mr Korokan’s application for Australian citizenship by descent, based on his parents’ citizenship, the Tribunal will traverse some of the constitutional development of Papua New Guinea, as it relates to the citizenship of its inhabitants. The Tribunal has drawn partly from Deputy President McPherson’s decision in Re: Mahuru and Department of Immigration and Citizenship [2008] AATA 464, and a November 1963 article in the Melbourne University Law Review ‘Law and the Territory of Papua and New Guinea’, by the Hon. Mr Justice Smithers, later Sir Reginald Smithers, written when he was a Judge of the Supreme Court of Papua-New Guinea.
I also quote from the scholarly work published by the Attorney-General’s Department, A Federation in These Seas (‘Kerr’). The author, Mr Alan Kerr, AM, was closely involved in the lead up to independence in Papua New Guinea and, for many years, in the general administration of Australia’s external territories. He wrote, at p 68:
…the main island of New Guinea was partitioned in the nineteenth century by the Netherlands, Britain and Germany. The Dutch claimed the western portion, Britain the south-eastern portion, and Germany the north-eastern portion and adjacent islands. The nearby Solomon Islands were also split between Britain and Germany, which took control of the two northern islands in the chain.
The eastern part of the island of New Guinea
Papua
In 1883 the south-western quarter of the island of New Guinea was annexed (perhaps unilaterally) by the Colony of Queensland. The Imperial Government refused to ratify the annexation but in 1884 Great Britain declared a protectorate over the territory, then called ‘British New Guinea’. In 1988 it was placed under the administration of the Colony of Queensland under the British Settlements Act 1887 (Imp). In March 1902, Letters Patent were made for the purposes of section 122 of the Australian Constitution, placing the territory under the Commonwealth of Australia. On 16 March 1906, under section 5 of the Papua Act 1905 (Cth), Papua (as it came to be called) became an Australian territory. It was administered under this Act until 1942 when the civil administration was suspended, and an Australian military government was established for those parts of the Territory not occupied by the enemy. With the surrender of the Japanese Imperial Forces, the civil administration was restored under the Papua-New Guinea Provisional Administration Act 1945 (Cth).
The Papua and New Guinea Act 1949 (Cth) maintained the status of the Territory of Papua as a possession of the Crown and the status of New Guinea as a Trust Territory but provided for the government of the two territories in an administrative union with the title of the Territory of Papua and New Guinea.
New Guinea
The Treaty of Versailles established a process for the League of Nations to issue ‘mandates’, which were essentially authorities to administer, to provide for the future governance of former German colonial possessions, as part of the German surrender. German New Guinea was one of these possessions.
The Territory of New Guinea, comprising New Britain, New Ireland, Manus, Buka, Bougainville and other islands and water, first came under Australian control in 1920, when the League of Nations conferred upon Australia a Mandate for its Government. However, Australia’s effective control of New Guinea began in September 1914. At the outbreak of World War I, the British Government asked Australia whether it “felt able” to seize German wireless stations in New Guinea. The cable was in the following terms: Kerr, pp 68:
If your Ministers desire and feel themselves able to seize the German wireless stations at New Guinea…we should feel this was a great and urgent imperial service. You will realise, however, that any territory now occupied must at the conclusion of the war be at the disposal of the Imperial Government for the purposes of an ultimate settlement.
The Australian Government did find itself ‘able’ to respond to this request: Kerr, pp 68-69:
A party of 27 men from the Australian Naval Reserve, among other troops, was put ashore on 11 September 1914 at Blanche Bay on the north-eastern tip of New Britain, an island in the Bismarck Archipelago, in German New Guinea. Their instructions were to locate and seize the wireless station. That evening the station surrendered to the party, thus ending Germany’s 30-year control over and administration of its portion of New Guinea.
The British Government had advised that all territories successfully occupied should have the British flag hoisted but that no proclamation formally annexing any such territory should be made. Therefore, the officer commanding His Majesty’s Australian Naval and Military Expeditionary Force merely issued a proclamation of occupation of German New Guinea on 12 September 1914 on behalf of, and in the name of, the King. Terms of capitulation were signed on 17 September.
For the duration of World War I and until 1920, the former German possession remained under the occupation of Australian defence forces working under the authority of the British.
However, because there was no formal annexation and simply occupation, New Guinea remained (if only technically) a German colony. In September 1920, the Parliament enacted the New Guinea Act 1920 (Cth) which formally accepted the Mandate: Kerr, p 81:
On 17 December 1920, the Council of the League of Nations defined the terms of the mandate for the ‘German Possessions in the Pacific Ocean situated south of the Equator other than German Samoa and Nauru, conferred upon His Britannic Majesty, to be exercised on his behalf by the Government of the Commonwealth of Australia’. New Zealand was to administer Samoa under mandate.
…
On 7 April 1921, the Governor-General proclaimed 9 May 1921 as the date of commencement of the New Guinea Act 1920. Australia had acquired its fourth external territory (after Papua, Norfolk Island and Nauru).
New Guinea was administered under this Mandate until the Japanese invasion. The Trusteeship Agreement for the Territory of New Guinea was approved by the (new) United Nations General Assembly at the end of 1946 (the League of Nations having been disbanded in April of that year).
From ‘British subject’ to ‘Australian citizen’
Before 1948, all persons born anywhere in what were called, from 1901, His Britannic Majesty’s ‘British Dominions beyond the Seas’ (see Royal Titles Act 1901 (UK)), were British subjects. The law did not recognise nationality or citizenship of a particular part of the British Empire. That situation persisted until the enactment of the British Nationality Act 1948 (UK). That Act maintained the status of a common ‘British’ nationality, but this was to be derived from local citizenship of one of several specified countries (listed as Canada, Australia, New Zealand, the Union of South Africa, Newfoundland, India, Pakistan, Southern Rhodesia, and Ceylon).
The 1948 British Act came about because of the 1947 Commonwealth Conference on Nationality and Citizenship, which had agreed that each of the Commonwealth member states would legislate for its own citizenship, distinct from the shared status of ‘British subject’. In Australia’s case, the local statute enacted was the Nationality and Citizenship Act 1948 (Cth) (the short title later altered to the Australian Citizenship Act 1948 (Cth)) (‘the 1948 Act’), which commenced operation on 26 January 1949. The 1948 Act is referred to in the current statute as the ‘old Act’ (see Sch 3 of the Australian Citizenship(Transitionals and Consequentials) Act 2007 (Cth).
Section 5 of the 1948 Act defined “Australia” to include Norfolk Island and the Territory of Papua. This is relevant to Mr Korokan, because his submission is that his father was born in Wabag in 1920 and his mother in the same town in 1930, when he says that place was at the time within the Territory of Papua. Therefore, he claims that his parents were British subjects by birth, and further that they became Australian citizens on 26 January 1949, by operation of law.
However, it should be noted, even if this contention were true, the Australian citizenship held by people in the category of the Applicant’s parents was, to use a term, a qualified form of citizenship. It did not, by itself, confer on holders the right to reside in Australia, unless a person had otherwise obtained an entitlement to such a right.
A new nation – Papua New Guinea
The Papua New Guinea Act 1971 (Cth) provided that the Territory of Papua and the Territory of New Guinea are together called Papua New Guinea. This was in preparation for looming independence.
On 9 September 1975, the Governor-General gave the Royal Assent to the Papua NewGuinea Independence Act 1975 (Cth) which provided, at section 4, for the withdrawal of the sovereignty or sovereign rights of Australia in respect of any part of Papua New Guinea from expiration of the day preceding Independence Day.
Independence Day was 16 September 1975 for the new Independent State of Papua New Guinea. On Independence Day, the Papua New Guinea Constitution came into effect. The Papua New Guinea Constitution is an autochthonous constitution, meaning it is ‘home grown’ and not reliant on an original foreign enactment (unlike, for instance, Australia’s).
Part IV of the Papua New Guinea Constitution concerns citizenship. Division 2 deals with acquisition of citizenship. Section 65 of the Constitution relevantly provides:
Automatic citizenship on Independence Day
(1) A person born in the country before Independence Day who has two grand-parents who were born in the country or an adjacent area is a citizen.
(Subsections 65(2) and (3) deal with arrangements to register as a citizen and explains that the term ‘adjacent area’ means the Solomon Islands, Irian Jaya or certain islands in the Torres Strait.)
(4) Subsections (1) and (2) do not apply to a person who –
(a)has 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)
Was a parent of the Applicant born in the Territory of Papua?
In the on-line form lodged for citizenship by descent (TD, p 90), Mr Korokan stated that his father was an Australian citizen at the time of Mr Korokan’s birth. He filled in the form:
Method of acquiring citizenship:
Born in Papua prior to independence (16 September 1975)
He then wrote that his father acquired Australian citizenship at Port Moresby on “29 March 2020”. (It is assumed he meant to write 1920, the year of his father’s birth.).
In response to the question, Was this parent absent from Australia for a continuous period of seven years or more between 26 January 1949 and 8 October 1958, Mr Korokan wrote: “Yes; from 29 March 1920 to 29 May 2023” (sic).
Regarding his mother (at GD, p 91), Mr Korokan answered the questions identically, except he asserted that his mother acquired Australian citizenship on a named date in May 1930 (her date of birth). However, in answer to the question, Was this parent absent from Australia for a continuous period of seven years or more between 26 January 1949 and 8 October 1958, Mr Korokan wrote “No.”
For both parents, in response to the question: Has this parent ever held citizenship of any other country? Include all current and all previous citizenships held, Mr Korokan wrote “No.”
On 5 November 2020, an officer of the Department wrote to Mr Korokan (TD, pp 114-116) and made requests for various documents, including childhood documents. The letter also relevantly stated:
Evidence of a parent’s Australian citizenship at the time of your birth
You have advised in your application form that both of your parents were born in Papua before Independence on 16 September 1975. However, their declared birthplace is listed as Wabag in Enga Province, which was located in New Guinea. Please provide formal evidence demonstrating how and when your parents acquired Australian citizenship, and that they continued to hold it at the time of your birth on [day redacted] September 1978.
The issue about the location of Wabag was not raised in the Respondent’s Statement of Facts, Issues and Contentions, nor further explored during the hearing. Mr Korokan maintained his contention in response to questions that his parents were Australian citizens because they were born in Wabag. Mr Korokan further stated that Wabag was (at the time) in the Territory of Papua, the corollary being that Papua was included in the definition of ‘Australia’ in the 1948 Act.
Exercising its powers under section 33(3) of the AAT Act to inform itself in such manner as it thinks appropriate, the Tribunal examined pre-independence maps of the Territory of Papua and the Mandated Territory of New Guinea. The Division of National Mapping of the Australian Department of National Development published a map of the Territory of Papua and New Guinea in 1970 which clearly shows Wabag within the Territory of New Guinea, albeit not far from the border with Papua.
The Tribunal also considered a Commonwealth parliamentary paper, a Report to the General Assembly of the United Nations on the Administration of the Territory of New Guinea from 1^st July, 1953 to 30^th June 1954. That report contains various commentaries about social and economic conditions in New Guinea; and, at pages 64, 105, 125, 182 and 222 refers to Wabag in the (then) Western Highlands Province as being a town within the Territory. This would accord with Mr Korokan’s remark during evidence that Enga Province was formerly Western Highlands Province before 1975. The parliamentary report refers to research into a hydro-electric scheme for Wabag, the airfield at Wabag, periodic patrols at Wabag and to the Lutheran Mission at Wabag.
The Tribunal is therefore satisfied, on this evidence, that Wabag was within the Trust Territory of New Guinea prior to Papua New Guinea becoming independent in September 1975.
At the time of Mr Korokan’s father birth in March 1920, Wabag was in German New Guinea (Kaiser Wilhelm’s Land). As mentioned above, in September 1920 the Parliament passed the New Guinea Act 1920 (Cth) which provided for Australia’s formal acceptance of a Mandate for the government of German New Guinea. By the time Mr Korokan’s mother was born in 1930, Wabag was within the Mandated Territory of New Guinea. The town of Wabag was never within the Territory of Papua.
If the Applicant’s parents were born in New Guinea, were they British subjects and entitled to Australian citizenship in 1949?
Section 24 of the 1948 Act included, at Part IV, transitional provisions:
In this Part, “British subject” includes a person who was, immediately prior to the date of commencement of this Act, entitled in Australia or a Territory to all political and other rights, powers and privileges to which a natural-born British subject was then entitled.
And at section 25:
A person who was a British subject immediately prior to the date of commencement of this Act shall, on that date, become an Australian citizen if –
(a)He was born in Australia and would have been an Australian citizen if section ten of this Act had been in force at the time of his birth;
(b)He was born in New Guinea;
(c)He was a person naturalized in Australia; or
(d)He had been, immediately prior to the date of commencement of this Act, ordinarily resident in Australia or New Guinea, or partly in Australia and partly in New Guinea, for a period of at least five years.
Section 5 of the 1948 Act is the definitions clause, and relevantly defines “New Guinea” as meaning the Territory of New Guinea.
The Respondent submitted that it was likely that the Applicant’s parents were British subjects and acquired Australian citizenship under the 1948 Act. The Tribunal agrees. It would appear that as persons born in New Guinea or, if there was doubt about that because of the year of his father’s birth, resident for at least five years in New Guinea prior to 26 January 1949, both of Mr Korokan’s parents were British subjects and became Australian citizens with the commencement of the 1948 Act.
However, there was no evidence that either of Mr Korokan’s parents had a right to reside in Australia, nor concrete evidence they had been to Australia. I accept the Respondent’s submission that Department records have been searched and have not turned up any applications Mr Korokan’s parents may have made for Australian citizenship in their lifetimes.
Citizenship Procedural Instruction (‘CPI’) 19 – Papua New Guinea – Assessing citizenship status, provides guidance to officers of the Department and other decision-makers (including this Tribunal) in considering applications for Australian Citizenship. It is well established that consistency in the application of policy is desirable unless there are cogent reasons not to do so in a particular case (see Re: Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634). Cogent reasons may include that the policy would be inconsistent with the law, or would produce a manifestly unjust or ridiculous outcome.
CPI 19 relevantly states:
Born in New Guinea before 26 January 1949
People who were born in New Guinea before 26 January 1949 and who were British subjects immediately prior to that date acquired Australian citizenship automatically on 26 January 1949 in accordance with subsection 25(1)(b) of the 1948 Act.
A person who acquired Australian citizenship acquired through the 1948 Act’s transitional arrangements would have lost their Australian citizenship on PNG Independence Day if the person had two or more grandparents born in PNG or adjacent areas (‘adjacent areas’ included the Solomon Islands, Irian Jaya, and those Torres Strait Islands annexed to Queensland in 1878), and the applicant did not have right of permanent residence in Australia and was not a citizen of a country other than Australia (ie if the person acquired PNG citizenship on independence).
The 1948 Act extended to the Australian Territories. As mentioned above, when it was first enacted, the old Act defined “Australia” to include Norfolk Island and the Territory of Papua. In 1953 that definition was changed to provide that “Australia” includes the Territories that are not trust territories. As the Full Court said in Walsh, at [4]:
Thus, prior to the independence of Papua New Guinea in 1975, Papua would have been considered part of Australia for the purposes of the Act [i.e. the 1948 Act], but New Guinea would not: see Pryles Australian Citizenship Law 1981 at p 45. The historical basis for this distinction was no doubt that Papua had been a British colony administered by Queensland and, after Federation, by Australia. New Guinea had been a German colony. After the First World War it was administered by Australia under a League of Nations Mandate. After the Second World War it was a United Nations Trust Territory, again under Australian administration.

Their Honours go on to discuss the effect of section 65 of the Papua New Guinea Constitution, referred to above, and then refer to regulations made under the Papua New Guinea Independence Act 1975 (Cth) at [11]-[12]:
Regulation 4 of the Papua New Guinea Independence (Australian Citizenship) Regulations 1975 (Cth)(“the Independence Regulations”) made under s 6 of the Independence Act, provided:
“4 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 Independent State of Papua New Guinea,
ceases on that day to be an Australian citizen.”
The effect of Regulation 4, read with s 65 of the PNG Constitution, was to terminate 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 a different, connection with Australia (unless they renounced their citizenship).
Birthdate of the Applicant
Before the Tribunal (TD, p 119) was a Papua New Guinea ‘Certificate of Birth Entry’ dated 18 July 2017 which stated that the particulars are contained in an entry in the Register of Births. This document referred to a child named Martin Korokan Lomeyari being born at a named health centre in September 1968, and the child’s nationality as Papua New Guinean. It listed the mother of the child as Lespis Pepenwan Minimal, and her nationality as Papua New Guinean. Finally, it listed the father of the child as Arnold Elapae Lomeyari, with his nationality as Papua New Guinean.
The Applicant also provided another Papua New Guinea ‘Certificate of Birth Entry’ dated 9 May 2008, which stated that the particulars that follow are contained in an entry in the Register of Births. This document referred to a child named Martin Korokan being born at a named health centre in September 1978, and the child’s nationality as Papua New Guinean. It listed the mother of the child as Elizabeth Lespis, with a maiden surname of Noah. It listed the father of the child as Korokan Lomeyari. Both parents were listed with Papua New Guinean nationality.
Mr Korokan said that he uses the 2008 birth certificate, and his evidence was that this was the accurate year of birth. He provided a photocopy of the data page of his Papua New Guinea passport which records “[day] Sep 1978” as his date of birth (Exhibit A12). He also provided a PNG Driver’s Licence with a birth date of “..09/1978” (Exhibit A8), and a Royal Papua New Guinea Constabulary National Police Certificate (Employment) dated 23 March 2018, which lists his birthdate as “...09.1978” (Exhibit A15).
I am prepared to accept that the birth certificate extract dated July 2017 which records the same day and month, but the year as “1968”, as a typographical or transcription error. The weight of the evidence supports a finding that Mr Korokan’s date of birth is, in fact, a day in September 1978. I note the Respondent does not cavil with that.
Mr Korokan provided other supporting documents relating to his identity, including a certificate signed by the Rector of Saint Fidelis College of his completion of grades 11 and 12 (TD, p 132). He also provided a Diploma of Nursing testamur issued by the Pacific Adventist University (TD, p 131) and a Master of Management Science testamur issued by Peking University in September 2015 (TD, p 130).
I therefore do not accept the Respondent’s submission that the Applicant has not provided any documents for the first 30 years of his life, given that there is a certificate relating to where he studied grades 11 and 12. However, there is nothing before that period.
Findings
The Tribunal is satisfied to make the following findings:
(a) The Applicant’s father was born in Wabag in German New Guinea in 1920.
(b)The Applicant’s mother was born in Wabag in the Mandated Territory of New Guinea in 1930.
(c)It is likely that the Applicant’s parents, as residents of the Territory of New Guinea in 1949, were British subjects and acquired Australian citizenship with the commencement of the 1948 Act on 26 January 1949.
(d)The Applicant’s parents became Papua New Guinea citizens on 16 September 1975 by operation of section 65 of the Papua New Guinea Constitution. Any Australian citizenship they acquired in 1949 ceased to be held by them at midnight on 15 September 1975.
(e)The Applicant was born in Wabag, Papua New Guinea in 1978. On the evidence, he acquired Papua New Guinea citizenship by birth.
(f)As neither of the Applicant’s parents were Australian citizens at the time of his birth, the effect of section 16(2)(a) of the Act means Mr Korokan is not eligible for Australian citizenship by descent.
The Applicant’s case for Australian citizenship by descent is a weak one. I accept that it appears to be Mr Korokan’s genuine belief that Wabag was formerly in the Territory of Papua, when in fact it was in the Territory of New Guinea. However, his application still falls at the first hurdle which is that, accepting it is likely his parents became Australian citizens in 1949, as found in Walsh they ceased to be Australian citizens on Independence Day on 16 September 1975. This was a week short of three years before the Applicant was born.
In relation to the Applicant’s submissions that he should be considered under section 16(3) of the Act, they are misconceived. Section 16(3) relates only to persons born before 26 January 1949 and who fulfil later requirements in that subsection. As Mr Korokan plainly was not born on or before 26 January 1949, this part of the Act is not applicable to his quest for citizenship by descent.
I have found that Mr Korokan’s application fails because he does not satisfy section 16(2)(a) of the Act. It is therefore not necessary for me to go on to consider the second basis on which the delegate refused his application, which was that they were not satisfied of his identity. However, I will make some observations to assist the Applicant.
Identity
Mr Korokan has provided several documents which trace his life story. His provision of two conflicting birth certificates did not help his case, because all it did was cast doubt on which was the authentic date of his birth. But he has also provided documents with his name and several with his date of birth relating to his higher secondary schooling and academic studies, his PNG Driver’s Licence, and court documents from the National Court of Papua New Guinea all of which state the same name – Martin Korokan.
Mr Sypott, on behalf of the Minister, asked the Applicant why he has not provided any documents from his school days growing up. The Tribunal may accept that a fire at the school destroyed some documents, but I also note that Mr Korokan conceded that the Education Department head office in Port Moresby may have details of when he attended primary and high school in Wabag. Mr Korokan also offered that his old teachers and classmates would be able to attest to the fact that he went to school there. However, any such information was not before the Tribunal.
I make clear that the Tribunal does not consider Mr Korokan is an imposter. I accept his explanation about naming conventions in the highlands region in relation to his parents’ names. However, being satisfied of the identity of a person seeking Australian citizenship is essential, and that satisfaction must be a positive one. To be reasonably satisfied, it is not enough for a decision-maker to consider that it is probable that a person is who they say they are. What is necessary is an actual sense of persuasion (Dixon J in Briginshaw v Briginshaw (1938) 60 CLR 336). Because of the lack of documents relating to his earlier life, which break the chain of his life story, I cannot find that actual sense of persuasion is present, in the sense of being satisfied under section 17(3) of the Act.
As I say above, this is not pivotal to the fate of Mr Korokan’s application, because it has failed for another reason. However, if, in future, the Applicant finds himself in the position of applying for Australian citizenship by conferral, he knows that a better ‘chain’ of identity would be necessary to meet the requirements under the Act. Where a person may not have documents but has reasonable means of obtaining them, or certified copies, from a reputable source, then the person has an obligation to do so, to support his or her identity claims.
Further observation
The Tribunal makes a further observation about material provided by the Applicant. He provided some graphic photographs of atrocities committed, apparently, in the Papua New Guinea highlands. He expressed the view during his submissions that this lawlessness was one of the reasons he did not want to return to the area, especially with a wife and young family. The Tribunal accepts that, but makes clear that this review was about his application for Australian citizenship by descent, not about any other matter which might involve the provisions of the Migration Act 1958 (Cth) and international conventions.
CONCLUSION
In closing, the Tribunal notes that Mr Korokan made submissions about the fact that, as Justice Jagot recorded in her Address (Exhibit A18), indigenous peoples have populated Australia for some 65,000 years. The Tribunal accepts his submission that the Malipin Angalean Tribe of Wabag, of which he is a member, has an ancient and noble indigenous history in that part of what is now Papua New Guinea. I note that Justice Jagot refers in her speech to a 2017 archaeological discovery in Kakadu indicating that Aboriginal people crossed from Papua New Guinea 65,000 years ago. However, Her Honour was speaking extra-judicially, and this submission does not engage the reality that the Applicant’s place of birth has never been part of ‘Australia’, in terms of eligibility for citizenship.
Mr Korokan has an impressive work and academic history, and several people have provided testimonials attesting to his good character, including a number who are Australian citizens. While his application has not succeeded, it is for reasons unrelated to his character. Mr Korokan should not interpret any of the findings in these reasons as reflecting in any way on that good character.
DECISION
The Tribunal affirms the decision under review, that the Applicant is not eligible for Australian citizenship by descent under section 16(2)(a) of the Act and cannot be approved under section 17(1A) of the same Act.

I certify that the preceding 105 (one hundred and five) paragraphs are a true copy of the reasons for the decision herein of Senior Member D. J. Morris

..................[sgd]......................................................
Associate
Dated: 11 February 2022

Date of hearing:

1 February 2022

Applicant:

Mr Martin Korokan (self-represented)

Counsel for the Respondent:

Mr Keith Sypott

Solicitors for the Respondent:

The Australian Government Solicitor

Date of hearing:	1 February 2022
Applicant:	Mr Martin Korokan (self-represented)
Counsel for the Respondent:	Mr Keith Sypott
Solicitors for the Respondent:	The Australian Government Solicitor