Kuster and Minister for Immigration, Citizenship and Multicultural Affairs (Citizenship)

Kuster and Minister for Immigration, Citizenship and Multicultural Affairs (Citizenship) [2023] AATA 3486 (26 October 2023)
Division:GENERAL DIVISION
File Number: 2022/10292
Re:Gus Kuster
APPLICANT

AndMinister for Immigration, Citizenship and Multicultural Affairs
RESPONDENT

DECISION
Tribunal:Senior Member Theodore Tavoularis
Date:26 October 2023
Place:Brisbane

Pursuant to s 43 of the Administrative Appeals Tribunal Act 1975 (Cth), the decision dated 15 December 2022 made by a delegate of the Respondent to refuse the Applicant Australian citizenship is affirmed.
...........................[SGD]...........................
Senior Member Theodore Tavoularis
Catchwords
CITIZENSHIP– decision to refuse Australian citizenship by descent – where Applicant is found to be not of good character – where the Applicant has a lengthy criminal offending history in Australia – where the Applicant arrived in Australia from Papua New Guinea (PNG) as a child – where PNG authorities unable to locate any record of Applicant being a PNG citizen – consideration of relevant sections of PNG constitution- Tribunal finding Applicant is likely to be a citizen of PNG - Tribunal finding Applicant is not a person of good character- decision under review affirmed
Legislation
Administrative Appeals Tribunal Act 1975 (Cth)
Australian Citizenship Act 2007 (Cth)
Migration Act 1958 (Cth)
Cases
Grass v Minister for Immigration and Border Protection (2015) FCAFC 231 FCR 128
Fenn and Minister for Immigration and Multicultural Affairs [2000] AATA 931
Hands v Minister for Immigration & Border Protection (2018) 267 FCR 628
Irving v Minister for Immigration, Local Government and Ethnic Affairs (1999) 139 ALR 84
Kuster v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 1462
Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v Thornton [2023] HCA 17
Re Canavan; Re Ludlam; Re Waters; Re Roberts [No 2]; Re Joyce; Re Nash; Re Xenophon [2017] HCA 45
Secondary Materials
Constitution of the Independent State of Papua New Guinea 1975 (Papua New Guinea)
Minister for Immigration, Citizenship and Multicultural Affairs (Cth), Citizenship Procedural Instructions
REASONS FOR DECISION
Senior Member Theodore Tavoularis
26 October 2023
INTRODUCTION

Mr Gus Kuster (‘the Applicant’) was born in Lorengau on Manus Island in Papua New Guinea (‘PNG’) on 31 October 1978. His Birth Certificate appears in the material.[1] On

15 December 2022, a delegate of the Minister for Immigration, Citizenship and Multicultural Affairs (‘the Respondent’) refused the Applicant’s application for Australian citizenship by descent.
[1] T1, 51.
The basis of the refusal resulted from a finding that pursuant to s 17(1) of the Australian Citizenship Act 2007 (Cth) (‘the Act’), the Applicant was not eligible to become an Australian citizen because he did not meet the ‘good character’ eligibility criterion stipulated in

s 16(2)(c) of the Act.
MANIFESTATION OF PRESENT CIRCUMSTANCES
The Applicant’s mother, Ms Agnes Kuster was born in PNG on 3 September 1952. The material confirms that at the time of the Applicant’s birth in October 1978, she was a citizen of PNG.[2] She married the Applicant’s father on 27 July 1981.[3]The Applicant’s father is

Mr Richard Halden Leonard Kuster who was born in PNG on 26 April 1949. [4] He became an Australian citizen by descent on 5 September 1958[5] and has resident in Australian on a continuous basis since 9 September 1983. [6]
[2] Ibid, p 26; p 84.
[3] Ibid, p 83.
[4] Ibid, p 41.
[5] Ibid, p 44.
[6] Ibid, p 47.
The Applicant has a very significant history of criminal offending in Australia. It runs, in sentencing terms, from November 1993 until June 2018, a period of some 25 years. He has been before lawful authority for sentencing on 39 occasions. At 14 of his sentencing hearings, he received a term of imprisonment. His is an offending history with 101 separate entries about which two initial things can be said. First, two of those entries involve the Applicant being dealt with for previously imposed orders and not for fresh offending. Second, one entry involves an application for a Fine Option Order consequent upon a preceding breach of a bail undertaking.
Some level of circumspection is required in order to properly assess the extent of the Applicant’s offending for present purposes. This caution derives from the High Court’s judgment in Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v Thornton [2023] HCA 17 (‘Thornton’). The essential principle established by Thornton is that offending which an applicant committed as a child (i.e. before attaining the age of 18 years) and for which he was convicted but in respect of which no conviction was recorded, cannot be taken into account in any assessment of the totality of his conduct for present purposes.
The Applicant was dealt with as a minor at sentencing hearings on:
·11 November 1993 (three convictions, all of them recorded);
·19 April 1994 (three convictions, all of them recorded);
·20 September 1994 (one conviction which was recorded); and
·24 January 1995 (two convictions but no conviction recorded on either charge).
Therefore, I will not take into account the Applicant’s two convictions as a minor on

24 January 1995 because no conviction was recorded in relation to either of those convicted charges. This results in a balance of 96 charges that can be taken into account for present purposes.
Consequent upon this pattern of offending in Australia, the Applicant received not one, but two warnings that the commission of further offences could result in the cancellation of his visa. Both warnings were issues by the Respondent’s Department on 6 July 2011 and

8 August 2014.[7] The terms of both letters left the Applicant in no doubt about the consequences of him committing further offences.
[7] T1, p 68.
Both warnings were ignored and, on any reasonable view, were honoured more in the breach than in the observance. There followed, on 21 December 2017, the mandatory cancellation of the Applicant’s then-held Transitional Permanent Visa pursuant to s 501(3A) of the Migration Act 1958 (Cth) (‘Migration Act’). Consequent upon this mandatory cancellation, the Applicant voluntarily departed Australia, bound for PNG. PNG refused him entry and he was compelled to return to Australia. The mandatory cancellation of his visa crystallised into the Respondent Minister personally refusing to revoke the mandatory cancellation on 14 April 2021.[8]
[8] T1, pp 56 – 74.
There followed an application for judicial review of the Respondent Minister’s decision of 14 April 2021. On 23 November 2021, the Federal Court dismissed this application for judicial review.[9] The visa matter appears to have gone no further. The Applicant then sought a grant of Australian citizenship by descent by application dated 20 December 2021[10] and lodged with the Respondent’s Department on 3 February 2022.[11] On 15 December 2022, the Applicant was notified that his Application for Australian citizenship had been refused on the basis that he did not meet the ‘good character’ threshold pursuant to s 16(2)(c) of the Act.[12]
[9] Kuster v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 1462, per Halley J.
[10] T1, pp 23 – 32.
[11] Ibid, p 6.
[12] Ibid, p 6 – 20.
The instant application now before the Tribunal was filed on 15 December 2022[13] and seeks review of the abovementioned decision of the same date refusing the Applicant Australian citizenship. The Hearing of the instant application proceeded before me on 10 July 2023 and 22 August 2023. It received evidence from:
·the Applicant;
·Professor Kim Rubenstein;
·the Applicant’s father, Mr Richard Kuster; and
·the Applicant’s mother, Mrs Agnes Kuster.
[13] Ibid, p 1.
The Hearing also received written material which was reduced to an agreed[14] Exhibit List which is relevantly attached to these Reasons and marked ‘Annexure A’.
[14] See Transcript, p 2, lines 27 – 30; p 3, lines 37-43; and p 4, lines 6-9.
LEGISLATIVE FRAMEWORK
The Applicant was born in PNG on 31 October 1978. He arrived in Australia on 9 September 1983 as a dependent child on his mother’s PNG passport and as the holder of an Australian permanent resident visa. As mentioned, his permanent residence visa was mandatorily cancelled on 21 December 2017 and he currently remains onshore without a valid visa. His legal challenge against the non-revocation of the mandatory cancellation was not successful and he now seeks, as a virtual last resort, citizenship of this country as a means of remaining here.
For the Applicant to qualify for Australian citizenship by descent, he must first meet the requirements set out in s 16(2) of the Act. It appears in these terms:
‘ (2) A person born outside Australia on or after 26 January 1949 is eligible to become an Australian citizen if:
(a) a parent of the person was an Australian citizen at the time of the birth; and
(b) if the parent was an Australian citizen under this Subdivision or Subdivision AA, or section 10B, 10C or 11 of the old Act [Australian Citizenship Act 1948] (about citizenship by descent), at the time of the birth:
(i) the parent has been present in Australia (except as an unlawful non‑citizen) for a total period of at least 2 years at any time before the person made the application; or
(ii) the person is not a national or a citizen of any country at the time the person made the application and the person has never been such a national or citizen; and
(c) if the person is or has ever been a national or a citizen of any country, or if article 1(2)(iii) of the Stateless Persons Convention applies to the person, and the person is aged 18 or over at the time the person made the application—the Minister is satisfied that the person is of good character at the time of the Minister’s decision on the application.’
Each of the three paragraphs to s 16(2) of the Act must be satisfied. First, with reference to s 16(2)(a), the parties agree the Applicant had a parent who was an Australian citizen at the time of his birth. Second, with reference to s 16(2)(b), the parties agree that the Applicant’s Australian citizen parent has been present in Australia for a total period of at least two years prior to the time the Applicant made his application for Australian citizenship by descent. Third, with reference to s 16(2)(c) of the Act, the parties are in contest on two specific issues stated below.
ISSUES
There are therefore two issues before the Tribunal comprising:
·has the Applicant even been a national or a citizen of any country? and, if so,
·should the Tribunal (standing of the shoes of the Minister) be satisfied that the Applicant is of good character?
Is the Applicant (or has he ever been) a national or citizen of any country?
The tension in the evidence derives from two elements. The first of those is s 66(1) of the Constitution of the Independent State of Papua New Guinea (‘PNG Constitution’). It is cast in these terms:
‘66. Citizenship by descent.
(1) A person who—
(a)is born in the country on or after Independence Day; and
(b)had one parent who was a citizen or who, if he had survived to Independence Day, would have been or would have been entitled to become, such a citizen, is a citizen.’
The evidence confirms the Applicant was born in PNG on 31 October 1978.[15] PNG achieved independence on 16 September 1975. The Applicant was therefore ‘…born in [PNG] on or after [PNG] Independence Day’ and thus meets the requirements of

s 66(1)(a) of the PNG Constitution. The evidence further confirms that the Applicant ‘… had one parent (i.e., his mother) who was a citizen [of PNG]’ at the time of his birth in accordance with s 66(1)(b) of the PNG Constitution. Satisfaction of ss 66(1)(a) and (b) means the Applicant qualifies for PNG citizenship by descent, that is, through his mother.
[15] T1, p 52.
The second element giving rise to tension in the in the evidence derives from two letters from the PNG Government (or relevant agencies acting with its imprimatur) the combined effect of which is to suggest that PNG has no record of the Applicant either being or successfully qualifying for PNG citizenship. Both of these letters appear in the material. The first of them is dated 20 February 2019 and appears to be contemporaneous with the Applicant’s voluntary departure from Australia on 21 August 2019. The letter is under the hand of the PNG High Commissioner and is put in these terms:
‘I refer to your letter dated 06 February 2019 requesting the issue of an Emergence Travel Document for Mr KUSTER Gus Thomas who is currently located at the Brisbane Immigration Transit Accommodation, Queensland.
The High Commission wishes to convey to Australia Boarder Force that PNG Immigration Do Not have any record of Mr KUSTER Gus Thomas as a PNG citizen nor applied for PNG citizenship.
In this regards, the High Commission wishes to convey that Mr KUSTER Gus Thomas born on 31 October 1978 is not a Papua New Guinea Citizen and cannot be deported to PNG.
Yours sincerely,
John Ma’o Kali CMG OBE
High Commissioner’[16]
[16] T1, p 53.
The second letter was issued under the hand of Mr Robert Barra Kennedy, Acting Chief Migration Officer of the PNG Office of the Chief Migration Officer of the Immigration & Citizenship Authority (‘ICA’). The letter is dated 16 November 2020 and is addressed to the Australian High Commission in PNG. This letter relevantly provides as follows:
‘I write to respond to your request to the Immigration & Citizenship Authority (ICA) seeking advice on the PNG status of Mr [the Applicant]… Thomas Guster Kus in light of the law of PNG.
I have instructed relevant officers to conduct due diligence checks on our records and have been accordingly informed that ICA does not hold any records relating to the citizenship of [the Applicant]… Kus. This is consistent with the advise [sic] provided to Australian Authorities by the PNG High Commissioner, Mr John Ma’o Kali…
…
In the case of Mr. Kus, ICA notes that he was born on 31 October 1978 in PNG and came to Australia on 09 September 1983 with his (Australian) parents, seeking permanent residency. Evidence provided to ICA suggest [sic] that he had a PNG mother.
According to section 66(3) of the ‘Constitution Amendment N0. 43 (Dual Citizenship) Law 2016’, Mr Kus fits the requirement for citizenship by descent being born before Independence Day and having one parent or grandparent who is/was a citizen. Noting however, to attain citizenship by descent under subsection (3), Mr Kus must apply to the Minister responsible for citizenship and meet the proscribed requirements in subsection (5) such as; reside in the country for three (3) years prior to lodging his application, be of good character and renounce any other citizenship and make a Declaration of Loyalty to PNG.
In concluding, [sic] ICA advices [sic] that [the Applicant] Kus [is] at present, not [a citizen] of PNG and must meet the necessary Constitutional requirements before PNG citizenship status can be accorded to [him].
…
Yours Sincerely,
Robert Barra Kennedy
Acting Chief Migration Officer’[17]
[My emphasis]
[17] T1, pp 54 – 55.
The terms of these two letters were considered by the Federal Court when deciding the Applicant’s appeal against the Minister’s personal mandatory cancellation of his Transitional Permanent Visa.[18] In discussing the letter of 16 November 2020, His Honour Justice Halley noted:
‘It is readily apparent that the references in the 16 November 2020 letter to “Mr Kus” are references to the applicant. More problematic are the conflicting statements that the applicant was born on 31 October 1978 and the applicant was “born before Independence Day”. The advice as to the citizenship status of the applicant, on its face, would appear to have been given on a fundamentally incorrect premise. PNG obtained independence on 16 September 1975, a fact of which I am prepared to take judicial notice’.[19]
[My emphasis and underlining]
[18] Kuster v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 1462 (per Halley J).
[19] Ibid, [21].
Further in its discussion of its letter, the Federal Court noted:
‘The PNG letters supported the finding by the Minister that it was not, at the time, reasonably practicable to remove the applicant to PNG but given their content, in particular the internally inconsistent advice in the 16 November 2020 letter, it was not irrational or illogical for the Minister to conclude that there was uncertainty as to the applicant’s PNG citizenship status. Further, given that the 16 November 2020 letter was the most recent communication from the PNG authorities prior to the non-revocation decision, it was the most relevant information as to the applicant’s PNG citizenship status at the time the Minister made the non-revocation decision. The explanation of the applicant’s PNG citizenship in the 16 November 2020 letter was based on a false premise. The applicant, as otherwise recognised in the letter, was born after, not before, PNG Independence’.[20]
[My emphasis and underlining]
[20] Kuster v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 1462 (per Halley J), [86]
I am satisfied that the second letter (16 November 2020) is simply wrong for a couple of reasons. First, the Applicant is not excluded from PNG citizenship because he was born three years after PNG independence and; second, it is silent about whether or not the Applicant had one parent who was a citizen of PNG. I am also satisfied the reliability of the letter dated 16 November 2020 must be found to be tainted. I respectfully agree with the findings of His Honour Justice Halley who noted the advice proffered in this second letter about the Applicant’s citizenship status in PNG was predicated on a fundamentally incorrect premise.
It is clear the plain terms of s 66(1) of the PNG Constitution safely facilitate a finding (pursuant to s 66(1)(a)) that the Applicant was born in PNG (in 1978) on/after PNG Independence Day (in 1975) and, further, that on the occurrence of his birth he had (pursuant to s 66(1)(b)) one parent who was a citizen on PNG.
Following Justice Halley’s determination of the mandatory cancellation matter, the Applicant then re-configured his position to suggest his mother, at no material time, had ever been a citizen of PNG. It is therefore necessary to review the evidence in order to determine whether the Applicant’s mother is presently a citizen of PNG or that she was a citizen of PNG when the Applicant was born.
The evidence of the Applicant’s mother, Ms Agnes Kuster
The Applicant’s mother has provided both written and oral evidence to the instant proceeding. During her evidence-in-chief, she confirmed that she understood the content of her written statement made on 20 March 2023[21] and that she otherwise recalled her statement was provided for the purposes of the Applicant’s application for Australian citizenship.[22]
[21] A17.
[22] Transcript, p 77, lines 8 – 12.
During her cross-examination, she confirmed:
·her family was from Manus Island, PNG;
·her father was born on Manus Island;
·her grandparents (i.e the parents of her father) were born on Manus Island;
·her mother is from Manus Island;
·her other grandparents (i.e. the parents of her mother) were born on Manus Island;
·she recalled the birth of her son, the Applicant, and that he was born on Manus Island in 1978;
·she could recall that PNG gained independence in 1975;
·the Applicant was born after PNG gained independence; and
·she married the Applicant’s father on 27 July 1981 and that this marriage occurred after PNG gained independence and after the Applicant was born.[23]
[23] Ibid, lines 25-46; p 78, lines 1 -9.

The Applicant’s mother confirmed that she made application for a passport to the PNG authorities in 1981. She particularly recalled that her children were included on her passport because, at that time, they were under 18 years of age. She also recalled that she came to Australia in 1983 with her children and she sought permanent residence in this country at that time. She was able to recall that she applied for permanent residence prior to coming to Australia because she knew she needed to establish a right to permanent residence in order to come here.[24]
[24] Ibid, p 78, lines 11-41.
The following exchange ensued between the Applicant’s mother and the Respondent’s representative:
‘MR ETUEATI: And you – at that time when you applied, you were a citizen of Papua New Guinea?
MS KUSTER ---Yes.
MR ETUEATI: And were you a citizen of Papua New Guinea, as far as you know, from 1975, from independence?
MS KUSTER: ---Yes.
MR ETUEATI: Were you a citizen of Papua New Guinea when Gus was born in 1978?
MS KUSTER: ---Yes.
MR ETUEATI: Are you a citizen of Papua New Guinea now?
MS KUSTER: ---Yes.
MR ETUEATI: Are you a citizen of Australia? Have you ever applied for Australian citizenship?
MS KUSTER: ---No, not yet.
MR ETUEATI: All right. So you’re still, in your understanding, a citizen of Papua New Guinea?
MS KUSTER---Yes.’[25]
[25] Transcript, p 78, lines 43-47; p 79, lines 1-10.
Since arriving here in 1983, the Applicant’s mother has returned to PNG ‘maybe three times when my [the Applicant’s mother] father pass [sic] away; and then my sister pass [sic] away. I think three times…’[26] She confirmed that she obtained a new PNG passport on 17 April 2019 and that it is due to expire on 17 April 2024.[27] She confirmed that her current passport contains the words ‘Citizen of Papua New Guinea’ on it.[28] She was then taken to her immediately preceding passport which was issued to her on 29 December 2005 and which expired on 29 December 2010 and she confirmed that this passport also had the words ‘Citizen of Papua New Guinea’ on it as well.[29] She otherwise confirmed that she held a PNG passport from 2005 until 2010 and that she applied for a new PNG passport in 2019.
[26] Ibid, p 79, lines 14-15.
[27] Ibid, lines 36, 46.
[28] Ibid, p 80, lines 1-5.
[29] Ibid, p 80, lines 9 – 16.
As best as I understood her evidence, the Applicant’s mother has had three passports while in Australia. First, the one she originally came here on in 1983. It ran from 7 September 1983 until 7 September 1988.[30] Second, the passport she was granted in 2005 which expired in 2010. Third, the passport granted to her in April 2019 which runs until April 2024. On the occasions of her returns to PNG, she confirmed that she did so on the basis of one of her first two then-current passports relative to the time of her return travel the PNG.
[30] T1, p 84.
She otherwise confirmed that she encountered no problems entering or leaving PNG on the basis of the then-current PNG passport on which she was travelling. With specific reference to her most recent passport granted in April 2019, she confirmed that she had never travelled outside Australia with that passport.[31]
[31] See generally Transcript, p 83, lines 9-12.
The Applicant’s mother confirmed that her husband (the Applicant’s father) has always held Australian citizenship and that she has never held it. She confirmed that she married the Applicant’s father in 1981 and that this was at a time after the Applicant’s birth.[32] She further confirmed that on the basis of being married to an Australian citizen, she applied for permanent residence in Australia in 1983. [33]
[32] Ibid, lines 38-45.
[33] Ibid, p 84, lines 1-2.
Finally, the Respondent’s representative sought to establish whether any of her family were from the Torres Strait Islands. This is what transpired during her cross-examination:
‘MR ETUEATI: All right. There’s one other thing I wanted to clear up, I just want to clarify, you said that your parents and your grandparents were all born in Manus Island. That’s correct?
MS KUSTER: ---Yes.
MR ETUEATI: Not the Torres Strait Islands?
MS KUSTER: ---No.
MR ETUEATI: You’re not from the Torres Strait Islands; are you?
MS KUSTER: ---No.
MR ETUEATI: You have no Torres Strait Islander ancestry; do you?
MS KUSTER: ---No.
MR ETUEATI: You are from Manus Island?
MS KUSTER:---Yes.’[34]
[34] Ibid, lines 4-14.
The evidence of the Applicant’s father, Mr Richard Kuster
The Applicant’s father provided both written and oral evidence to the instant Hearing. During his evidence-in-chief, he was taken to his letter dated 20 March 2023 which is a jointly written document with his wife, the Applicant’s mother. He confirmed that the content of this jointly written letter was true and that he wrote this letter in relation to the Applicant’s citizenship application. [35]
[35] See generally, Transcript, p 70, lines 10-14.
The Applicant’s father was then cross-examined. He confirmed that he was born at the Vumapope Mission, in Kokopo in the province of New Britain in PNG.[36] He confirmed that he was granted Australian citizenship by descent because ‘My mum and dad already got citizenship for me when I was a baby’.[37] He was not able to recall the precise year on which he was granted Australian citizenship. He was able to recall that in 1973, he left Rabaul and travelled to Manus Island in PNG. He thinks he met his wife in 1972 and recalls that ‘She’s from Manus Island’.[38]
[36] Ibid, lines 34-38.
[37] Ibid, lines 44-45.
[38] Ibid, p 71, lines 18-19.
The Applicant’s father confirmed that his wife (the Applicant’s mother) is not from any of the Torres Strait Islands. The following transpired between the Applicant’s father and the Respondent’s representative during cross-examination:
‘MR ETUEATI: All right. And so when you say – you’re saying Manus Island, that’s – Manus Island, not the Torres Strait, or were they from the Torres Strait?
MR RICHARD KUSTER: ---No, Manus Island is an island of the Papua New Guinea on the Bismarck Archipelago.
MR ETUEATI: Yes?
MR RICHARD KUSTER:---It’s an island off New Britain.
MR ETUEATI: Yes, which is on the other side of the country?
MR RICHARD KUSTER: ---Yes.
MR ETUEATI: Which is on the other side of the country from the Torres Strait. Is that right?
MR RICHARD KUSTER: ---Yes, yes.
MR ETUEATI: All right. So your – as far as you understand, your wife was from Manus Island, both of her parents were Manus Island. None of them were from Torres Strait Islands. Is that correct?
MR RICHARD KUSTER: ---No.
MR ETUEATI: Sorry, just to clarify, is it correct that they weren’t from Torres Strait Islands?
MR RICHARD KUSTER: ---They weren’t from Torres Strait Islands. They were from Papua New Guinea Islands.’[39]
[39] Transcript, p 71, lines 21-39.
The Applicant’s father was aware that PNG became an independent country on

16 September 1975 and he confirmed that at that time he ‘…was in Manus, working in Manus there for the council’.[40] He further confirmed that prior to 1975, he had been granted Australian citizenship by descent and that he had not become a citizen of PNG. He confirmed ‘My wife [the Applicant’s mother] is Papua New Guinean’[41] and that he knows that ‘Because she was born in Manus Island’[42] and that, as a consequence she is ‘… automatically Papua New Guineans [sic]’.[43]
[40] Ibid, p 72, line 21.
[41] Ibid, lines 31-32.
[42] Ibid, lines 36-37.
[43] Ibid, line 39.
He confirmed that his wife (the Applicant’s mother) had held a New Guinean passport and that he married her ‘Around ’80, 1980’.[44] He recalled that his wife and their children applied for permanent residence in Australia in 1983. Specifically, he said ‘Yes, I am aware of that because I was there in Port Moresby and applied in Port Moresby’.[45]
[44] Ibid, line 47.
[45] Ibid, p 73, lines 32-33.
His evidence was that he brought his family to Australia because of several factors, they being: (1) a perceived level of instability in PNG; (2) a desire to establish a better life for his family in Australia; and (3) because his mother was ill. He said ‘That is at the time, yes, they had to do it[46] because I had – Rabaul – you know, New Guinea was independent and I had see better for them, and so my mother was ill, so we came here to Australia.[47]
[46] That is, his wife and children needed to apply for permanent residence in Australia in order for them to remain here.
[47] Ibid, lines 46 – 47; p 74, lines 1 and 2.
He recalled marrying the Applicant’s mother in the early 1980’s and that the Applicant was born on 31 October 1978 and that the Applicant was three years of age when he and his family came to Australia. He confirmed that the Applicant was born before he married his wife (the Applicant’s mother) in 1980 or 1981.[48] He also confirmed that the Applicant was born after the date of PNG independence.[49]
[48] See generally, Transcript, p 75, lines 10-13.
[49] Ibid, lines 6-8.
The Applicant’s father confirmed (1) that his wife (the Applicant’s mother) is still a citizen of PNG; (2) that she is not a citizen of Australia but a permanent resident of this country; (3) and that she remains a citizen of PNG; (4) that she has always been a PNG citizen since PNG independence; and (5) that she currently holds a PNG passport.[50]
[50] Ibid, lines 15-25.
Finally, the Applicant’s father confirmed that his wife (the Applicant’s mother) has travelled out of Australia two or three times since her first arrival in this country due to family bereavements in PNG. He said that on each occasion of her travel to PNG she had no difficulty entering or leaving PNG on her then-current PNG passport.[51]
[51] Ibid, p 76, lines 5-7.
The evidence of the Applicant
The Applicant has provided both written and oral evidence to the instant proceeding. His written evidence consists of four statements that appear in the material. They comprise:
·a statutory declaration made on 12 March 2023;[52]
·a statutory declaration made on 27 June 2023;[53]
·an undated statement that was probably made at the time when the Applicant was seeking revocation of the mandatory cancellation decision;[54] and
·an undated typed statement made as part of the Applicant’s attempt to have the mandatory cancellation of his visa revoked;[55]
[52] A6.
[53] T1, pp 99-103.
[54] Ibid, pp 137-149.
[55] Ibid, pp 188-189.
His evidence-in-chief primarily consisted of him being taken to the abovementioned four documents and, visa submissions made by his representative, confirming to the Tribunal that those statements were true and correct.[56]
[56] Transcript, p 18, lines 26-32; p 19, lines 1-31.
During his cross-examination, the Applicant confirmed he was born on Manus Island, PNG[57] and that at the time of his birth, his father was Australian, and his mother was Papua New Guinean.[58] He was taken to his Personal Circumstances Form (‘PCF’) in which he identified his father and nominated his nationality as ‘Australian’ and in which he identified his mother and nominated her nationality as ‘Papua New Guinean’.[59]
[57] Ibid, p 21, line 18.
[58] Ibid, lines 46-44.
[59] T1, p 182.
The Applicant was taken to a copy of his mother’s PNG passport issued to her on
7 September 1983 and asked about the extent to which this document served as confirmation to him that his mother was citizen of PNG:
‘MR ETEUATI: Can I take you to page 225 of the joint document. Is that the passport that you’re talking about?
APPLICANT: ---Yes. Yes.
MR ETUEATI: All right. So are you saying that you believe that your mother was a Papua New Guinean citizen because she had a passport of Papua New Guinea?
APPLICANT: ---Well, yes, I guess so.
MR ETUEATI: I mean was it that, or was it that the passport, on it, said that the holder was citizenship of Papua New Guinea? Was it anything in particular?
APPLICANT: ---Well, to be honest, it’s because my mother’s dark and it’s something, when I was little, I just knew that we came from there. So I thought that’d probably be the case.
MR ETUEATI: Well, before you said it was because of the passport?
APPLICANT: ---Yes, well, and the passport, you know what I mean, so.’[60]
[60] Transcript, p 23, lines 37-46; p 24, lines 1-5.
Can it be found that the Applicant’s mother was never a citizen of PNG?
In the Statement of Facts, Issues and Contentions (‘SFIC’) filed on behalf of the Applicant, ‘It is submitted, however that it is unclear if Ms Kuster [the Applicant’s mother] is a PNG citizen due to reasonable doubt that Ms Kuster became a PNG citizen on PNG being independent.’[61] The argument devolves into this: ‘Ms Kuster arrived [in Australia] on a PNG passport. This is not, however, definitive proof that Ms Kuster was in fact a PNG citizen. It is possible this passport may have been issued in mistake.’
[61] A1, p 6, [18].
As best as I understood this contention, the Applicant was purporting to suggest he did not come under auspices of s 66(1)(b) of the PNG Constitution because this Tribunal cannot safely find he ‘had one parent [i.e his mother] who was a citizen [of PNG] or who, if [the Applicant’s mother] had survived to Independence Day, would have been or would have been entitled to become, such a citizen….’ The state of the evidence, neatly summarised by the Respondent in its SFIC safely dispatches this contention.[62]
[62] R1, p 5, [27]-[30].
When she first travelled to Australia, the Applicant’s mother held a PNG passport. This passport duly notes the Applicant’s name as one of her children. His photographic depiction also appears next to that of his mother and siblings on the passport. The document bears the title ‘PASSPORT PAPUA NEW GUINEA’ on its front page. It also confirms the holders ‘national status’ as ‘CITIZEN OF PAPUA NEW GUINEA’.[63]
[63] T1, p 84.
It will be recalled from the evidence of the Applicant’s mother that contemporaneous with her initial arrival in Australia, she made an application for Australian permanent residency. The relevant application form appears in the material.[64] This form carries the mother’s name, her photographic depiction with her children (including the Applicant) and otherwise confirms she is a citizen of PNG.
[64] Ibid, p 83.
This recently-propounded contention is at odds with the Applicant’s previous evidence. Even in his evidence to the instant Hearing, the Applicant confirmed his mother was Papua New Guinean. He recorded her nationality as ‘Papua New Guinean’ in his PCF. The Applicant’s father told the instant Hearing (1) his wife [the Applicant’s mother] was Papua New Guinean; (2) that he knew this because she was born on Manus Island; and (3) that as a consequence of these two factors she is automatically a citizen of PNG.
Perhaps even more telling was the Applicant’s evidence to the instant Hearing to the effect that he confirmed his mother had returned to PNG two or three times for family reasons and that on each occasion she had no difficulty entering or leaving PNG on her then-current PNG passport.
It seems clear from the terms of the PNG constitution that the Applicant’s mother qualified for an automatic grant of PNG citizenship on PNG’s Independence Day (September 1975). In her evidence to the instant Hearing she confirmed (1) the parents of her father were born on Manus Island and (2) her mother is from Manus Island. Thus, the Applicant’s mother satisfies s 65(1) of the PNG constitution because she has two grandparents who were born in PNG. Accordingly, the PNG constitution deems her to be a citizen of that country. She is not immune from the operative effect of s 65(1) of the PNG constitution because she does not have, and never did have, a right to permanent residence in Australia,[65] was not a repatriated Australian citizen,[66] was not a registered Australian citizen,[67] and was not a citizen of a country other than Australia.[68]
[65] s 66(4)(a) PNG constitution.
[66] s 66(4)(b) PNG constitution.
[67] s 66(4)(c) PNG constitution.
[68] s 66(4)(d) PNG constitution.
The Applicant’s contention that his mother was never a citizen of PNG must fail. He may contend that his mother was not a citizen of PNG but there is nothing before me to suggest her PNG passport was issued to her in 1983 ‘in mistake’. The state of the evidence in relation to the Applicant’s mother, particularly when the provisions of s 66(1) and (4) of the PNG constitution is applied to it, is that his mother was- in 1983 and up to the present time-a citizen of PNG.
Is the Applicant’s mother a Torres Strait Islander?
In the Applicant’s SFIC, it is contended the Applicant’s mother:
‘…..is an indigenous Australian. She is biologically a Torres Strait Islander. Although Ms Kuster was born in New Guinea, there is no reason to consider and no evidence against, Ms Kuster being recognised by her mother and other family members as a Torres Strait Islander.
…..
As such, Ms Kuster’s ties to Australia are deep, many and varied. In summary, she is a biological Torres Strait Islander, her mother was born in the Torres Strait [sic]….’[69]
[69] A1, p 8, [29]; p 9, [30].
The evidence says otherwise. In her evidence the Applicant’s mother confirmed her father was born in Manus Island, her mother is from Manus Island, her mother’s parents were born on Manus Island and that her family was from Manus Island, PNG. The Applicant’s father confirmed in cross-examination that his wife (the Applicant’s mother) is not from any of the Torres Strait Islands. The father confirmed his wife his Papua New Guinean because he knows she was born on Manus Island and that she is thereby automatically a Papua New Guinean. In the Applicant’s SFIC, it is conceded his mother ‘…..was born in New Guinea…’[70]
[70] Ibid, p 7 [22].
The Applicant’s contention about his mother’s claimed Torres Strait Islander ancestry is misconceived. The Applicant’s mother is a citizen of PNG. She was born there; two of her grandparents were born there; she was born there before PNG Independence Day. She is a citizen of PNG pursuant to s 65(1) of that country’s constitution.
Finding on the first issue: has the Applicant ever been a citizen of any country?
The state of the evidence satisfies me that (1) the Applicant was born in PNG; (2) his mother was a citizen of PNG at the time of his birth; and consequently (3) the Applicant is and always has been a citizen of PNG. Given this finding, the Applicant is now compelled pursuant to s16(2)(c) of the Act, to satisfy the Tribunal (standing in the shoes of the Respondent) that he is of good character.
Is the Applicant of good character?
The term ‘good character’ is not defined in the Act. The concept is of broader application for present purposes than is the case when assessing whether a non-citizen passed the ‘character test’ is s 501(6) of the Migration Act 1958 (Cth):
‘Another indication of breadth is that the term “good character” is not defined in the [Citizenship] Act. In contrast, in s 501(6) of the Migration Act, there is a comprehensive list of matters which result in a person not passing the “character test” and being exposed to having her or his visa cancelled under the Migration Act….
….. parliament clearly intended the term to be used in a broad way, and refrained from taking the approach adopted in the Migration Act of giving specific content to a character criterion.’[71]
[71] Grass v Minister for Immigration and Border Protection (2015) FCAFC 231 FCR 128 at [60].
There are two established authorities that provide guidance on the concept of ‘good character’. First, in Irving v Minister for Immigration, Local Government and Ethnic Affairs (1999) 139 ALR 84 (‘Irving’), Lee J noted:
‘… the words “good character” should be taken to be used in their ordinary sense, namely, a reference to the enduring moral qualities of a person and not to the good standing, fame or repute of that person in the community. The former is an objective assessment apt to be proved as a fact while the latter is a review of subjective public opinion.’[72]
[72] See Irving, paragraph [94].
Second, in Fenn and Minister for Immigration and Multicultural Affairs [2000] AATA 931 (‘Fenn’), this Tribunal sought to equate ‘good character’ with ‘those who uphold the values of the Australian community and who are willing to make a positive contribution to the country they want to call home.’[73]
[73] See Fenn, paragraph [8].

Citizenship Policy and Instructions (CPI) 15[74] provides as follows:
[74] Citizenship Policy and Instructions (CPI) are procedural instructions which assist decision maker(s) in identifying the legal requirements, and related policy and procedures, that apply to the assessment of an application for Australian citizenship under the Act.
Good character refers to the enduring moral qualities of a person. A person who is of good character is likely to uphold and obey the laws of Australia and the other commitments made when making the Pledge of commitment should they be approved to become an Australian citizen.
…
Definition of good character
The term ‘good character’ is not defined in the Act. Therefore, the Federal Court (FC) and the Administrative Appeals Tribunal (the AAT) have used the ordinary meaning of the words, and made reference to dictionary definitions. Most cases have adopted the following definition from the Full FC judgment in Irving v Minister for Immigration, Local Government and Ethnic Affairs (1996) 68 FCR 422; at 431-432):
Unless the terms of the Act and regulations require some other meaning be applied, the words “good character” should be taken to be used in their ordinary sense, namely, a reference to the enduring moral qualities of a person, and not the good standing, fame or repute of that person in the community. The former is an objective assessment apt to be proved as a fact while the latter is a review of subjective public opinion… A person who has been convicted of a serious crime and thereafter held in contempt in the community, nonetheless may show that he or she has reformed and is of good character… Conversely, a person of good repute may be shown by objective assessment to be a person of bad character.
The phrase ‘enduring moral qualities’ encompasses the following concepts:
• characteristics which have been demonstrated over a very long period of time;
• distinguishing right from wrong; and
• behaving in an ethical manner, conforming to the rules and values of Australian society.
The good character requirement necessitates consideration of an applicant viewed in a holistic way; that is, all aspects of his/her life may be relevant to consideration of character.”[75]
[75] The introduction to the CPI says: “The purpose of this Instruction is to identify the legal requirements, and related policy and procedures, that apply to the assessment of an application for Australian citizenship under the Act.”
The offending
Earlier in these Reasons, I sought to describe the Applicant’s offending history in this country. I have described it as ‘significant’. To that descriptor I would add the descriptors ‘substantial’ and ‘appalling’. Its salient features comprise:
·duration: 25 years; in sentencing terms it runs from November 1993 until June 2018;
·number of appearances at sentencing hearings: 39, which becomes 35 if one discounts the four sentencing hearings at which he appeared as a minor. This offending has seen him appear before lawful authority at a rate almost twice a year for the duration of his history;
·number of convictions: there are some 101 separate entries in his sentencing history from which 13 can be discounted because (1) two of those entries (as an adult) involve him being dealt with for breaching previously-imposed orders and not for fresh offending; and (2) one entry (as an adult) involved an application for a Fine Option Order consequent upon a preceding breach of a bail undertaking; and (3) there are 10 entries for convictions as a minor. Even with these discounted elements he has convictions at the rate almost five for each year of his offending history;
·imposition of custodial terms: at 14 of his sentencing hearings, custodial terms were imposed. The cumulative total of custodial terms is 127 months and seven days. This equates to approximately 10.5 years of custodial time which, in turn, represents more than one quarter of the totality of his time in this country. Put another way, he has been here for about 40 years and has been offending for 25 of them;
·the range of his offending is multi-faceted and includes multiple convictions in each of the following categories:
odomestic violence offending;
orefusal to follow/comply with lawful authority;
ooffending against the person;
oweapons/firearms/explosives offending;
ogoing armed as to cause fear;
omotor vehicle offences;
odrug offending;
obreaches of lawfully imposed orders: bail; probation; community service order;
opublic nuisance offending.
The Applicant’s written evidence
Having regard to the sheer scope and extent of the Applicant’s offending, it is no understatement to suggest that he is confronted with a formidable task in terms of convincing this Tribunal that he can now found to be of good character. Be that as it may, I will examine and analyse the evidence as fulsomely as I can in order to determine this particular question.
As alluded to earlier, during his evidence-in-chief, the Applicant identified four statements attributable to him which appear in the material.[76] In one of those four statements,[77] the Applicant refers to the factors behind his offending and then goes onto deal with either each offence or group of offences he has committed.
[76] See generally Transcript, p 18, lines 26-46; p 19, lines 1-31.
[77] T1, pp 188-195.
In terms of causative factors, he attributes much of his criminal offending to difficulties with illicit drugs:
‘The cycle of drugs, depression and jail continued. Towards the end of 2003, my brother was viciously attacked and stabbed by a group of people. This caused him to be put in hospital for his injuries. Being fueled [sic] with drugs, I stupidly took these matters into my own hands and was out to get the people who hurt my brother. This landed me in jail, once again.’[78]
[78] Ibid, p 188.
He acknowledges that he has ‘…an extensive criminal history.’[79] He then goes to particular entries in his history, provides a reason or excuse behind the offending and then adopts a remorseful and otherwise contrite position for the offending on which he is commenting. Examples of this narrative include:
[79] Ibid, p 189.
·‘[for a conviction in 1999 relating to breach of bail] I have previously had a drug and alcohol problem in the past which impaired my decision making ….for these charges I am sorry for my actions…..I will not be in that position again’;[80]
[80] Ibid, p 189.
·‘[for a drug offending conviction in 1999] I do not deny these charges. I have had a problem with drugs from a young age…prevented me from seeking the help I needed’;[81]
[81] Ibid.
·‘[for convictions in 1999 relating to a breach of bail, possession of a knife in a public place and going armed so as to cause fear] I had a problem with drugs and alcohol, my judgement [sic] was impaired. I take full responsibility and apologise for my actions’;[82]
[82] Ibid, p 190.
·‘[for a conviction in 1999 for possession of tainted property] I can not [sic] recall what this is in regards to as it was a long time ago, but I believe that due to my problem with drugs, I had received stolen property….’;[83]
[83] T1.
·‘[for a conviction in 2002 for drug offending] Due to being under the influence of drugs, it caused me to make poor decisions. I apologise for my actions and for putting the community at risk.’;[84]
[84] Ibid.
·‘[for a conviction in 2002 for drug offending] I don’t deny these charges….I had a problem with drugs..’;[85]
[85] Ibid.
·‘[for a conviction in 2002 for breach of bail] for these charges I am sorry for my actions…..will do everything in my power to make sure I will not be in that position again’;[86]
·‘[for convictions in 2002 for breach of probation and breach of community service order] drugs played a major part in my life….my priorities were wrong and I take full responsibility for this.’;[87]
·‘[for respective convictions in 2003 for (1) motor vehicle offending; (2) drug offending; and (3) obstruct police officer] I can’t quite recall the details of these offences but I do know I was under the influence of drugs and due to this, I made very poor decisions.’;[88]
·‘[for a conviction in 2003 for dangerous operation of a vehicle] As I was heavily under the influence of drugs at the time, it severely impaired my decision making…’;[89]
·‘[for convictions in 2005 relating to (1) breach of suspended sentence; (2) dangerous operation of a vehicle with a circumstance of aggravation; (3) assault occasioning bodily harm while armed; (4) deprivation of liberty; (5) common assault; and (6) threatening violence] A few days before this incident, a group of men stabbed my brother…..he ended up in hospital….I regrettably took matters into my own hands and acted under the influence of drugs’;[90]
·‘[for a conviction in 2012 relating to failure to appear in accordance with undertaking] After being clean and sober for almost 4 years, I had experienced significant heartbreak and trauma in my life at this time. I relapsed and resorted back to the only way I knew how to deal with my depression and that was drugs. Due to being under the influence of drugs, I have lost track of the days…. ’;[91] [My emphasis]
·‘[for convictions for drug offending in 2014] Due to being severely depressed, I turned to drugs as it was the only way I knew how to help the pain…..’;[92][My emphasis]
·‘[for convictions in 2015 for (1) contravention of domestic violence order and (2) common assault] At the time I was in a drug fuelled relationship, which meant we were always fighting with each other. The relationship was volatile…’;[93]
·‘[for convictions in 2016 relating to (1) wilful damage; (2) commit public nuisance; (3) contravene direction or requirement; and (4) assault or obstruct police officer] I cant quite recall the details of these offences as I had a drug problem and during this time of my life I was addicted to drugs…’;[94]
·‘[for a conviction in 2017 relating to contravention of a domestic violence order] My partner and I at that time and myself were both heavily addicted to drugs, our entire relationship was based on drugs….’;[95]
[86] Ibid.
[87] Ibid.
[88] Ibid, p 191.
[89] Ibid.
[90] T1.
[91] Ibid.
[92] Ibid, p 192.
[93] Ibid, p 193.
[94] Ibid.
[95] Ibid.
Later in this statement[96] the Applicant speaks of having re-configured his life such that (1) he now claims to have been drug and alcohol free since 2017; (2) he claims to be in a domestic relationship with a supportive partner and (3) he claims to have engaged in a rehabilitative process:
‘After my release from jail, I was sent to Immigration detention and have since completed numerous courses during my time here. I have been drug and alcohol free since 2017 and can now see clearly what I want for my future. I have been offered drugs during that time but have had the strength to refuse.
I now have a beautiful partner who I met through my niece a few years ago, who has seen me at my lowest. She has seen the dramatic change in me from then to now. She does not drink alcohol or do drugs of any kind and she has no tolerance for people who use drugs. She has complete faith in me and I know with her by my side, she will be the rock I need to keep me focused on bettering myself for us and our future. She is my greatest support person and I would never do anything to risk losing what I have achieved in the past 2 years. I know the error of my past ways. I was never in the right state of mind as everything I have done was impaired by drugs and alcohol due to my severe depression. I have since sought counseling [sic] and support. Since being in jail and detention, I have had access to support services that I have never had in my whole life. I have received great support and services from Pacific Connect group who have put me in touch with numerous support agencies. They have been able to show me a much better way of applying good principles and coping strategies to my life.’[97]
[96] That is, the statement appearing at T1, pp 188-195.
[97] T1, p 193.
He concludes this statement by saying these things:
‘In summary of all of these above charges, I have had a timeline of ups and downs. I have committed some really stupid offences.
I understand that there is no excuse for my actions, but when any drug addiction takes hold of you, your morals and everything good in your life doesn't seem to matter….I now recognize triggers that might lead me to using again, and I have put counter plans in action to help me conquer this. E.g. Drug relapse plan and accessing support people, engaging the help from community agencies which I have been diligently doing and working closely with.’[98]
[98] Ibid, p 194.
The Applicant’s oral evidence
As mentioned earlier, the Applicant’s evidence in chief was primarily concerned with his identification of four statements/statutory declarations in the evidence. During the course of his cross-examination the Applicant confirmed he first started using alcohol and illicit drugs while in Grade 7 in primary school.[99] Those specific drugs were marijuana and amphetamines. He recalled that he was about 13 years of age ‘…when I first got injected with a needle’.[100]
[99] See Transcript, p 23, lines 13-24.
[100] Ibid, lines 29-30.
He was taken to his criminal history as it appears in the material and confirmed that he had previously read this document.[101] He agreed that his criminal history comprised a correct representation of all of the offences he has committed.[102] He agreed that his history of offending runs for about 20 years.[103] He also agreed that he has been sentenced to terms of imprisonment on 14 occasions.[104] He was specifically asked about why his criminal history was so extensive running, as it does, for about 20 years. He responded with this:
‘---Well, I guess I came from a broken family. Just made wrong decisions. Was addicted at an early age to amphetamines. And when you’re aged 13 and someone injects you with speed, I think that’s something that ruins your life and that’s what it done to me. Also used it to – for the pain and hide what’s going on. And just made a lot of wrong decisions, and I met up with – mixed with wrong crowds of people, older people, that was – because of the drug situation, and made a lot of poor decisions?’[105]
[101] Transcript, p 24, line 20.
[102] Ibid, lines 22-23.
[103] Ibid, lines 33-38.
[104] Ibid, lines 40-46.
[105] Ibid, p 25, lines 26-32.
He was asked whether it occurred to him to stop offending at any point during his 20 year criminal history and he said this:
‘--When you’re addicted to drugs, it’s hard to live a normal life. And even at times that I’ve tried, my addiction, I’d always fall back into it which kept on circulating in a round circle, so.’[106]
[106] Ibid, lines 44-47.
He was taken to the year in which his brother died in or about 2005 and to his evidence that he stopped taking drugs consequent upon his brother’s death. He spoke of undergoing rehabilitation and finding work in the concreting field:
‘MR ETUEATI: You mentioned that you did stop taking drugs I think some point after your brother died. Is that right?
APPLICANT: ---Yes.
MR ETUEATI: What year did your brother die again?
APPLICANT: ---I think it was 2005, maybe.
MR ETUEATI: When did you stop taking drugs?
APPLICANT: ---Well, I was incarcerated at the time, and I knew that I had to try to do something to better myself, so I applied for parole to rehab. So that’s when I went to – I got accepted to Goori House at Cleveland and I completed the course. And then I went from there – they let me go because I had a job concreting. So from there I went concreting for about five years, I think it was. In that same time, yes, I met a girl and we had a – she fell pregnant, and then a miscarriage, and it broke us up and I ended up relapsing.
MR ETUEATI: So from the time that you stopped – so first of all, when you were in prison – you said you were in prison and then you applied for parole to get into Goori House?
APPLICANT: ---M’mm.’ [107]
[107] Ibid, p 26, lines 14-30.
The Applicant remained drug-free for about five years from the time of the death of his brother in 2005.[108] He then relapsed back into illicit drug use and to offending:
[108] Ibid, p 27, line 4.
‘MR ETUEATI: Sure. So what happened after the five years? Did you go back to drugs?
APPLICANT: ---I told you previously that my partner was pregnant, that I met at the time, and she had a miscarriage and we split up because of that, and then I relapsed.
MR ETUEATI: When was that? What year?
APPLICANT: ---I’m not sure the year. So from probably that time that I told you, from jail, five years. And then that happened.
MR ETUEATI: Okay. So you had - - -?
APPLICANT: ---So I was clean that whole time, and I was working, concreting, and because of the – us losing the little one, and had a relationship breakdown over it, and I ended up relapsing and back to the same thing.
MR ETUEATI: Okay. So then you started taking drugs again?
APPLICANT: ---Yes.
MR ETUEATI: What drugs were you taking?
APPLICANT: ---Speed.
MR ETUEATI: Speed?
APPLICANT: ---Yes.
MR ETUEATI: Anything else?
APPLICANT :---No. Marijuana and alcohol.
MR ETUEATI: Then you went back to offending?
APPLICANT: ---Yes, I guess.
MR ETUEATI: Did you start offending before you relapsed, or did you relapse then go back to offending?
APPLICANT: ---I relapsed first. Yes.
MR ETUEATI: Why did you go back to offending?
APPLICANT: ---Just wasn’t myself. Just on the drugs, and that’s what happened.
MR ETUEATI: And then more recently there was crimes related to domestic violence?
APPLICANT: ---M’mm.’[109]
[My emphasis]
[109] Transcript, p 27, lines 10-39.
The next phase of the cross-examination went to the Applicant’s time in the community when he was still abusing illicit drugs and committing offences, but at the same time, was otherwise doing positive things for his friends and family and making a positive impression on them. This can be seen from a number of supportive statements in favour of the Applicant on this specific issue. For example:
·Bailey Lindenberg has known the Applicant since she was two years old and she speaks of the Applicant having ‘looked after me and my mother, helped us with so much as she was a single mother. Gus was like a father figure to me…’;[110]
·Tenille Saunders says ‘I have known Gus Kuster my whole life, he is beloved family and is always the first one to offer a helping hand….ensures you’re comfortable and safe….’;[111]
·Des Johnstone provides a statement ‘…in support of Gus and his true character as a good spirited person. I went to school with Gus and known [sic] him many years he has always been a one to help others…’;[112]
·Melissa Mernin has known ‘….Gus for a period of 30 years. I know he is a good character ….’.[113] She knows about his offending and says ‘…He doesn’t even like to talk about it. He is embarrassed, he feels shame, he is remorseful’;
·Lisa Nolan is the Applicant’s youngest sister who currently resides on the Gold Coast. She says ‘My brother is the only uncle to my children and is always, caring and supportive. Always keeping in check with my kids with phone calls and video chats.’;[114]
·Simone Smith says ‘I have known Gus for close to 20 years now on and off….I know Gus has a criminal record…but I absolutely believe Gus is a changed and reformed person….He is amazing passionate artist and is always ready to listen and offer advice….’;[115]
·Drewsilla Cumner is aware of the Applicant’s criminal history that says ‘…despite this I firmly believe he is of good character, not only because of my personal experiences and family relationship with him, I believe it because I have witnessed….his kind gestures to others…’;[116]
·Linton Element has known the Applicant for around ’35 years or so…’[117] He says that ‘As well as having the utmost care and devotion to his family, Gus shows the same affection to his friends as well as significant others’.[118] He adds ‘..I developed a lot of respect for Gus as he showed a lot of qualities like love, loyalty and compassion.’[119]
[110] A11.
[111] A12.
[112] A13.
[113] A14.
[114] A15.
[115] A16.
[116] A18.
[117] A19.
[118] Ibid.
[119] Ibid.

The Applicant’s evidence appeared confused and muddled in this regard. He accepted that he did do the good things for his friends and family referred to in the evidence, yet was not able to explain why he had a parallel life committing offences. He unsatisfactorily explained this conundrum on the basis that he ‘…was not in a good place…’ and that ‘Its hard to say what happens in the next day where I have made the wrong decision.’:
MR ETUEATI: So not withstanding that you were doing some positive things with your friends and your family, you were still committing offences including violent offences, weren’t you?
APPLICANT---Yes.
MR ETUEATI: You can see, can’t you, that – well, one of the things that the tribunal might have to determine is whether or not you’re currently a good character. And one thing - - -?
APPLICANT---Can I just say something? I think that – in those times, throughout my life, even when I was on the drugs, I was still doing some good things. And they’re the good things I think you can see with some people that have written stuff. Even though I was not in a good place, but I was trying my best. It’s hard to say what happens in the next day where I have made the wrong decision. But at the same time, I’ve been under the influence the whole time.
MR ETUEATI: Well, you haven’t though. You’ve not been under the influence for, for example, five years?
APPLICANT: ---Yes, I understand, but most of the time I was before these times. I’ve been institutionalised. I’ve been in and out of jail the whole time since I was young, and you’ve got that in front of you.[120]
[My emphasis]
[120] Transcript, p 28, lines 19-36.
Later in the cross-examination the Applicant referred to being drug-free since 2017, which is the time he went to prison. He referred to not having taken drugs in either prison or immigration detention and told the Hearing that in those sorts of institutions ‘There’s drugs everywhere, but I choose [sic] not to take it….’[121] The Applicant then was taken back to the five-year period commencing in about 2005 where he was drug-free but when he was presented with a difficulty in life he relapsed into illicit drug abuse as a means of addressing that difficulty:
‘MR ETUEATI: Just like back in 2005 where you went for five years, didn’t take it, then something happened which upset you and you went back to drugs and back to offending?
APPLICANT: ---I can’t tell you what’s going to happen tomorrow.
MR ETUEATI: No, you can’t?
APPLICANT: ---All I can do is be the person that I am now, you know, so. Like, I believe that I’ve done enough to know my stop points and not to fall back into those ‘read the danger’ signs, and especially, like, like I said, I’m not young anymore. I’ve only – I’m nearly halfway there. I’ve been to the place where I know that it’s enough.’[122]
[My emphasis]
[121] Ibid, p 29, line 5.
[122] Ibid, lines 8-16.
Another important point that emerged from the Applicant’s evidence resulted from his earlier evidence that he had not taken illicit drugs in either prison or immigration detention and that his capacity to resist the temptation of returning to illicit substance abuse has not been tested in the non-supervised environment of the general community. He did not appear to deny that reality:
‘MR ETEUATI: Thank you. What’s being suggested is that you have been through periods before, long periods, where you haven’t taken drugs. Then you’ve had a difficulty, and you’ve been outside of – not in jail, not in prison, when you were outside of prison, then you decided to go back to drugs and back to criminal offending. That’s correct, isn’t it?
APPLICANT: ---Yes.
MR ETUEATI: What I’m suggesting is, this time, again, there’s been a period of time around the same time as the period before, five or six years, where you haven’t offended. But what I’m putting to you is, so far, you haven’t been out free in the community where there’s very little chance that you’re going to be – well, much less of a chance you’re going to be found out in the community where you’re free than in circumstances where you’re being closely supervised in either jail or immigration detention. What I’m suggesting to you is that the chances of you going back to drugs are untested in society, and that you may well go back to drugs once you’re released – if you are released from detention or jail. Do you have anything to say to that?
APPLICANT: ---Well, now you’re saying it like that it’s different. Before you were confusing me a bit, but sorry I didn’t understand it.’[123]
[123] Transcript, p 30, lines 29-46.
The Applicant was then taken to a six-month residential drug rehabilitation course he undertook at Goori House in Cleveland, Brisbane in 2005. He confirmed that he has not undertaken any further such drug rehabilitation course since he last offended. He agreed that despite the rehabilitative treatment he received at Goori House in 2005, he nevertheless relapsed into abusing drugs:
‘MR ETUEATI: Tell me about Goori House. What was that?
APPLICANT: ---It was a drug rehabilitation centre.
MR ETUEATI: And how long were you there?
APPLICANT: ---Six months.
MR ETUEATI: Six months. And you haven’t been in a drug rehabilitation centre since you last offended, have you?
APPLICANT: ---No.
MR ETUEATI: Back then, in 2005 or around that time, you were given intensive rehabilitation for six months?
APPLICANT---M’mm.
MR ETUEATI: And yet you went back to drugs when you were on the outside?
APPLICANT: ---Yes.’[124]
[My emphasis]
[124] Ibid, p 31, lines 9-20.
Finally, the Applicant was taken to the report of the clinical and forensic psychologist,
Dr Emily Kwok, who examined the Applicant on 2 May 2023 and who produced a
medico-legal report which appears in the material. In particular, the Applicant was taken to Dr Kwok’s finding that she thought he represented a low-moderate risk of re-offending for drug-related offences. This what transpired between the Applicant and the Respondent’s representative after the latter read out Dr Kwok’s findings:
‘MR ETUEATI: Mr Kuster has a low to moderate risk of reoffending for drug-related offences, and Mr Kuster has a low risk of offending for non-drug-related and non-domestic offences.’ Now I’m going to say, at the end of this hearing, that those represent significant risks of you reoffending, and that the tribunal can’t be satisfied that you’re currently of good character. Do you have anything to say in relation to what the doctor has said there about your risks of reoffending?
APPLICANT: ---No.’[125]
[125] Transcript p 31, lines 41-47.
There followed some questions from me to the Applicant about other findings of Dr Kwok :
·first, I put the following finding of Dr Kwok to the Applicant which reads as follows:
‘Based on Mr Kuster’s score on the domestic assault risk assessment approximately 74% of individuals within his risk category commit another assault against their partner that comes to the attention of the police within about five years.’[126]
[126] A25, p 12.
This is what then transpired:
‘SENIOR MEMBER: Great. Okay. Let’s have a look at those four dot points that Mr Eteuati took you to. Have a look at the top one?
APPLICANT: ---M’mm.
SENIOR MEMBER: Just read me as we go all right? Top dot point?
APPLICANT---Yes.
SENIOR MEMBER: ‘Based upon Mr Kuster’s score on the domestic assault risk assessment, approximately 74 per cent of individuals within this risk category will all commit another assault against a partner.’ Okay, so you understand that. Dr Kwok says, 7.5 out of 10 people with your background, with your history, if you put them back in the community, will go and commit the similar sort of offence, domestic violence offence, that you’ve committed, okay. 7.5 out of 10 people, right, or 75 out of 100 people like you?
APPLICANT: ---M’mm.
SENIOR MEMBER: Why are you not one of those 75? If we put you back in the community, why are you not going to be one of those 75? Are you very sure, 100 per cent sure, maybe? Why aren’t you going to be one of those 75 people?
APPLICANT: ---Because I’m not going to put myself in that situation again. I think I’ve done a lot of courses to be the better person, and, if I need to, I will – I will do another course outside.’[127]
[127] Transcript, p 33, lines 21-39.
·second, I put the finding of Dr Kwok to the Applicant which reads as follows: ‘Mr Kuster would require intervention for domestic violence and education on building and maintaining healthy relationships. If he is permitted to return to the community, he may seek intervention through community-based organisations including Catholic Care and Relationships Australia.’[128]
[128] A25, p 12.
This is what then transpired:
‘SENIOR MEMBER: Go to the fourth dot point down. Just read the - - -?
APPLICANT: ---The fourth one?
SENIOR MEMBER: Yes, the fourth one down. ‘Mr Kuster would require intervention for domestic violence and education on building and maintaining healthy relationships’?
APPLICANT: ---M’mm.
SENIOR MEMBER: Do you think that there is a need in your life for intervention from clinicians, expert doctors, psychologists like her, to deal with your risk of going back to drugs and to offending very seriously in a relationship?
APPLICANT: ---I would – I would like to - - -
SENIOR MEMBER: Do you think you need help?
APPLICANT: ---Yes. I think I’d like to see counsellors or whoever I need to help myself more. There’s always room for more.
SENIOR MEMBER: Do you think having that counselling and rehabilitation support will help you?
APPLICANT: ---Yes, I do.
SENIOR MEMBER: Have you made any arrangements about engaging with that sort of process when you come out?
APPLICANT: ---I have earlier on, like earlier on through these years that I’ve been here. But recently, I didn’t think I was getting out so I didn’t know what was going on in my life. If I knew that there was a date that I was getting out, I would have connected with some people and established something like that.’[129]
[My emphasis]
[129] Transcript p 34, lines 5-27.
Evidence of Dr Emily Kwok: Clinical and Forensic Psychologist
Dr Kwok has considerable experience in the practice of clinical and forensic psychology.[130] She has provided evidence to this Tribunal on the specific question of recidivist risk and / or analogous questions such as ‘good character’ in a significant number of previous matters. There is no doubting in her expertise. Her report dated 6 May 2023 appears in the material.[131] She was not called to give oral evidence at the Hearing before me. She was fulsomely briefed by the Applicant’s representative.[132]
[130] A25, pp 2-3 [6].
[131] A25.
[132] Ibid, p 2 [4].
Dr Kwok interviewed the Applicant via video conference for one hour on 2 May 2023. In terms of recording a background history, Dr Kwok’s report provides a narrative about (1) the Applicant’s family and personal history; (2) his educational history; (3) his vocational history; (4) his drug and alcohol history; (5) his mental health history; (6) his psychosocial history and (7) his attitude towards re-offending. With specific reference to her narrative about the Applicant’s relationship history Dr Kwok recorded the following:
‘…Mr Kuster stated that he has a 13-year-old son, [Child K], from a short relationship about fourteen years ago. He reported that he met [Child K]’s mother at a sports club and they had sexual intercourse after meeting a few times. He said this was a sexual relationship. [Child K]’s mother reportedly left with [Child K], when he was 2 months old, because Mr Kuster could not commit to the relationship. Mr Kuster stated that he tried to find [Child K], and was able to get the mother’s phone number when [Child K], was 2 years old. The mother reportedly changed her phone number after he called and there has been no further contact. Mr Kuster stated that he could not afford lawyers to help him find [Child K]’[133]
[133] Ibid, p 5 [25].
With further reference to the Applicant’s relationship history, Dr Kwok noted:
‘Mr Kuster reported that he is currently in a relationship with a woman from Queensland whom he met online. He said they have not met in person, but they “call all the time.” He stated that he also talks to his current partner’s six children. The children are reportedly aged 2 to 14 years. He reported that his partner is a fulltime mother and, as far as he is aware, does not use illicit drugs.’[134]
[134] A25, p 6, [29].
Dr Kwok conducted two psychometric assessments on the Applicant. The first is called the ‘Symptom Checklist-90 Revised (SCL-90-R)’ which is utilised to measure any current or point-in-time psychological symptoms that could be said to be predispositive to the Applicant offending again. Dr Kwok reached the following conclusion: ‘Overall, Mr Kuster’s SCL-90-R symptom profile does not reveal a pattern and magnitude to be considered in the clinical range.’[135]
[135] Ibid, p 8, [53].
Second, Dr Kwok conducted ‘Domestic Assault Risk Assessment’. According to Dr Kwok, this is an actuarial risk assessment that calculates how a man who has assaulted his female partner ranks among similar perpetrators with respect to risk. It also calculates the likelihood that he will assault a female partner again in the future. Dr Kwok opined that this assessment ‘[the Applicant] in the risk category of 7. Approximately 74% of individuals within this risk category commit another assault against their partner that comes to the attention of the police within an average of about five years.’[136]
[136] Ibid, p 9, [55].
Ultimately, Dr Kwok reached the following concluded opinions:
‘69. On the basis of my assessment, it is my opinion that:
• Mr Kuster’s current symptoms do not reveal a magnitude to be considered in the clinical range, and he does not meet the criteria for any mental health conditions. He is in remission from depression and substance abuse disorder.
• Based on Mr Kuster’s score on the domestic assault risk assessment, approximately 74% of individuals within his risk category commit another assault against their partner that comes to the attention of the police within about five years.
• Mr Kuster has a low-moderate risk of re-offending for drug-related offences.
• Mr Kuster has a low risk of offending for non-drug-related and non-domestic offences.’[137]
[137] Ibid, pp 11-12.
Findings about good character
I have had regard to the totality of the evidence before me about whether the Tribunal can reach the necessary state of satisfaction that the Applicant is of good character at the time of the determination of the instant application. These are my findings:
·significant offending history: the Applicant’s offending history in Australia is very extensive indeed. It is not trite to suggest he is confronted with an uphill task in trying to establish his good character in circumstances of such a substantial history of offending;
·very long history with drugs: the Applicant’s evidence confirms he has a very long history of involvement with illicit drugs dating back to Grade 7 in primary school. He confirmed first being injected with illicit drugs at age 13. He further confirmed that much, if not all, of his offending was driven by his moral compass going askew as a result of his difficulties with illicit drugs;
·the Applicant’s explanations for the offending: his written explanations for his offending are repeatedly vacuous, cursory and otherwise token in nature. The primary rationale he gives for his offending is ‘the drugs made me do it, I regret doing it and I am responsible for doing it but I will not do it again’;
·relapsing: the Applicant has a history of receiving treatment for his significant difficulties with illicit drugs but then relapsing into significant drug-abuse issues and to consequently to significant offending. He claims to have been drug-free for five years from about 2005 but significantly relapsed in about 2010 following certain difficulties that arose in a personal relationship. He was asked in cross-examination why it never occurred to him to stop offending across his 20 year criminal history and he responded with ‘When you are addicted to drugs, it is hard to live a normal life. And even at times that I have tried, …..i would always fall back into [drug abuse] which kept on circulating in a round circle…’;
When questioned about his residential rehabilitative treatment at Goori House in circa 2005 he agreed this treatment did lead to abstinence from illicit drugs for about five years but he was not able to satisfactorily explain why he relapsed and resumed offending. The highest his evidence went was him suggesting ‘just wasn’t myself, just on the drugs and that’s what happened’;
·drug-free but only in closed environments: in terms of his more recent history with drugs (i.e from circa 2017 onwards) he speaks of being free from abusing alcohol and illicit drugs for approximately five years. However, this has occurred in the closed and supervised confines of prison and immigration detention. None of this claimed resilience and resistance towards the lure of illicit drugs has been tested in the community where drugs will be more freely available to him;
In terms of his capacity to resist the lure the illicit drugs upon a return to the community, his evidence went no higher than ‘I can’t tell you whats going to happen tomorrow…all I can do be the person that I am now….I believe that I have done enough to know my stop points and not to fall back into those ”read the danger” signs’;
·Dr Kwok identified that the Applicant has a 13-year-old child from a past relationship but had nothing to say about the extent to which that child could now be said to represent some kind of protective factor against the Applicant’s recidivist risk;
·Dr Kwok recorded that the Applicant told her about the new domestic relationship he had apparently established with a woman from Queensland whom he met online. Yet Dr Kwok had nothing to say about the extent to which that now-claimed relationship could now be said to represent some kind of protective factor against the Applicant’s recidivist risk;
·I will not cavil with Dr Kwok’s ‘low-moderate assessment for the Applicant’s risk of re-committing drug-related offences.’ Nor will I cavil with her finding that he represents a low recidivist risk for non-drug related and non-domestic offences. But those findings have been predicated on the risk she thought the Applicant represented following a one hour video conference interview with him in circumstances where the Applicant has been in the closed confines of either criminal custody or immigration detention for virtually half a decade. Dr Kwok has nothing to say about the extent to which the Applicant’s past relapses into illicit drug abuse-especially following a lengthy residential rehabilitative treatment at Goori House-now speak to recidivist risk about relapsing again where he returned to the unsupervised environment of the general community where drugs will be freely available to him.
Given (1) the length and extent of the Applicant’s offending history; (2) his insubstantial explanations for that offending ;(3) the unsatisfactory state of the evidence about the extent to which the Applicant has been rehabilitated from a pre-disposition to abuse illicit substances, especially in times of personal stricture and difficulty; and (4) his untested capacity to abstain from illicit drug abuse if returned to the community where drugs will be more freely available to him, I am not positively satisfied that the Applicant is currently of good character.
Evidence of Professor Kim Rubenstein
Professor Rubenstein contends that the ultimate arbitrator of whether a person qualifies for citizenship of PNG by descent (pursuant to s 66(1) of the PNG constitution) is the state of PNG. She says the elements of (1) the Applicant being refused entry into PNG and (2) the two abovementioned letters from PNG officials[138] mean PNG does not recognise the Applicant as the citizen of that country. This contention is made in circumstances where, first, neither of the subject letters contain any reference to ss 66(1) or (2); and second, where she conceded that officials in other states could make mistakes about the interpretation and application of the law of their own country.[139]
[138] See [19] – [20] of these Reasons.
[139] See generally, Transcript, p 54, lines 10-21.

Despite also conceding (1) the reality of numerous factual errors in the text of the letter dated 16 November 2020 and, thereby, (2) that it was possible for the relevant PNG author/official of that letter to be wrong about the Applicant not being a citizen of PNG, she nevertheless postulates two explanations for why the PNG officials determined the Applicant was not a citizen of PNG:
(i)her first explanation was predicated on the Applicant’s mother having a right to permanent residence in Australia prior to PNG independence.[140] No such evidence is before me;
(ii)her second explanation was predicated on the Applicant being an Australian citizen.[141] No such evidence is before me.
[140] Ibid, p 44, lines 10-14.
[141] Ibid, p 44, lines 5-10.
As noted by the Respondent, the instant Hearing received Professor Rubenstein’s evidence before that of the Applicant’s mother whose evidence was clearly to the effect that she (1) was a citizen of PNG; (2) had held PNG citizenship since PNG independence; (3) has held a total of three PNG passports (the most recent being issued to her in 2019); and (4) had travelled to PNG, without incident, on several occasions on the strength of those passports.[142] It would have been interesting to hear Professor Rubenstein’s evidence if the mother’s evidence to this Hearing had been put to her.
[142] R3 [14].
Ultimately, I agree with the Respondent’s following contention:
‘…there remains no legal explanation as to how the PNG officials could have possibly come to the conclusion that the applicant was not a citizen of PNG in circumstances where he was born in PNG to a PNG citizen mother after PNG Independence.’[143]
[143] R3, p 4, [15].
Findings about the evidence of Professor Rubenstein
In paragraph 9 of a more recent written submission,[144] the Applicant contented that:
‘In line with international law as affirmed in Australia, the Australian Government is required to accept the determination of the PNG Government that the applicant is not and has never been a citizen Papua New Guinea. For the tribunal or the respondent for that matter not to accept the PNG Government’s determination would be an error of law.’[145]
[144] Note to reader: the Applicant’s SFIC (A1) is dated 13 March 2023.This particular written submission quoted in this paragraph is dated 21 July 2023.
[145] A33, p 2, [9].
This must surely be an incorrect statement of the Tribunal’s task. It is (for present purposes) for the Tribunal to determine whether the Applicant satisfies the criteria for Australian citizenship pursuant to s16 of the Act. I accept (and find) that the question of whether a person qualifies as a citizen of a foreign power is ultimately something that can only be determined by that foreign power applying its own legislative requirements that qualify (or do not qualify) a person as a national of that foreign power.
Here, the foreign power is PNG; the legislative requirement about whether the Applicant is a national of PNG is s 66(1) of the PNG constitution; and this Tribunal has determined (as it is duly empowered to do via s 16 of the Act) he meets the criteria to be found to be a citizen of PNG. Such a finding is consistent with prevailing High Court authority:
‘Whether a person has the status of a subject or a citizen of a foreign power necessarily depends upon the law of the foreign power. That is so because it is only the law of the foreign power that can be the source of the status of citizenship or of the rights and duties involved in that status, In Sykes v Cleary, Mason CJ, Toohey and McHugh JJ said that [a]t common law, the question of whether a person is a citizen or national of a particular foreign State is determined according to the law of that foreign State", the common law rule being, in part, a recognition of the principle of international law that "it is for every sovereign State ... to settle by its own legislation the rules relating to the acquisition of its nationality". Statements to similar effect were also made in Sykes v Cleary by Brennan, Deane, Dawson and Gaudron JJ respectively.’[146]
[146] Re Canavan; Re Ludlam; Re Waters; Re Roberts [No 2]; Re Joyce; Re Nash; Re Xenophon [2017] HCA 45 at [37]-[38].
Acceptance by the Australian courts that ‘the question of whether a person is a citizen or national of a particular foreign state ’ does not displace the legislative task of this Tribunal to (1) reach a concluded view about whether the Applicant has ever been a national or citizen of PNG; and, if so, (2) to then reach a state of satisfaction about whether the Applicant is of good character.
CONCLUSION
My primary findings comprise the following:
(i)I find that the Applicant is a national or citizen of PNG; and
(ii)I am not satisfied that the Applicant is of good character.
As a consequence of these two primary findings, the Applicant does not meet the criteria for the grant of Australian citizenship pursuant to s 16 of the Act.
DECISION
I therefore affirm the decision under review made on 15 December 2022.
·

I certify that the preceding 101 (one hundred and one) paragraphs are a true copy of the reasons for the decision herein of Senior Member Theodore Tavoularis

.................[SGD].............
Associate
Dated: 26 October 2023

Date(s) of hearing: 10 July 2023 and 22 August 2023

Representative for the Applicant: Ms Alison Battisson

Human Rights for All Pty Ltd

Representative for the Respondent: Mr Tigiilagi Etueati

Australian Government Solicitor
ANNEXURE A

EXHIBIT

DESCRIPTION OF EVIDENCE

DATE OF DOCUMENT

DATE RECEIVED

T1

T-Documents (T1-T23, paged 1-295)

Various

16 Feb 2023

R1

Respondent’s Statement of Facts, Issues and Contentions (paged 1-12)

18 Apr 2023

18 Apr 2023

R2

Constitution of Papua New Guinea (paged 1-154)

15 Aug 2023

10 Jul 2023

A1

Applicant’s submissions (paged 1-15)

13 Mar 2023

13 Mar 2023

A2

Correspondence regarding ‘Transfer to Legal Section’ from Australian Human Rights Commission (1 page)

22 Apr 2021

13 Mar 2023

A3

Petition Comments from Change.org (in Microsoft Excel format)

Undated

13 Mar 2023

A4

Papau New Guinea Constitutional Planning Committee Report 1974 – Chapter 4 Citizenship (paras 1-22, paged 1-24)

23 Aug 1974

13 Mar 2023

A5

Constitution of Papau New Guinea (117 pages)

16 Sep 1975

13 Mar 2023

A6

Statutory Declaration of Gus Kuster (2 pages)

12 Mar 2023

13 Mar 2023

A7

Communication in accordance with paragraph 15 of the working Group on Arbitrary Detention’s methods of work (A/HRC/36/38) (10 pages)

8 Feb 2022

13 Mar 2023

A8

Kuster Family Tree

Undated

13 Mar 2023

A9

Home Affairs Response to Request (3 pages)

4 Feb 2023

13 Mar 2023

A10

Australian Citizenship and the Independence of Papau New Guinea – UNSW Law Journal Volume 31(1) (paged 50-74)

undated

13 Mar 2023

A11

Statement of Bailey Lindenberg

17 Mar 2023

19 Mar 2023

A12

Statement of Tenille Saunders

Undated

19 Mar 2023

A13

Statement of Des Johnston

17 Mar 2023

21 Mar 2023

A14

Statement of Melissa Mernin

18 Mar 2023

19 Mar 2023

A15

Statement of Lisan Nolan

20 Mar 2023

20 Mar 2023

A16

Statement of Simone Smith

20 Mar 2023

22 Mar 2023

A17

Joint Statement of Richard and Agnes Kuster

20 Mar 2023

22 Mar 2023

A18

Statement of Drewsilla Cumner

20 Mar 2023

22 Mar 2023

A19

Statement of Linton Element

14 Mar 2023

23 Mar 2023

A20

Citizenship in Question : Chapter 5 – What is a “Real” Australian Citizen? (paged 100-114)

Undated

7 July 2023

A21

Statement of Professor Kim Rubenstein (1 page)

23 Mar 2023

24 Mar 2023

A22

Opinions adopted by the Wording Group on Arbitrary Detention at its ninety-sixth session, 27 March – 5 April 2023 of the Human Rights Council (paged 1-14)

28 Apr 2023

19 May 2023

A23

Advice on the citizenship status of Gus Kuster by Professor Kim Rubenstein (paged 1-8)

18 May 2023

19 May 2023

A24

Curriculum Vitae of Professor Kim Rubenstein (paged 1-19)

Undated

19 May 2023

A25

Psychologist Report of Dr Emily Kwok (paged 1-12)

6 May 2023

19 May 2023

A26

Complete Record (as at 16 May 2023) (paged 1-13)

16 May 2023

19 May 2023

A27

Applicant’s Patient Registration (1 page)

24 Feb 2014

19 May 2023

A28

Legal Aid Application Form (17 pages)

12 Sep 2017

19 May 2023

A29

Criminal Law Application Form (8 pages)

Undated

19 May 2023

A30

Caboolture State High School Record (1 page)

12 Mar 1993

13 Jun 2023

A31

Citizenship in Question – Evidentiary Birthright and Statelessness (38 pages)

Undated

24 Mar 2023

A32

Constitutional Amendment No. 42 (Dual Citizenship) Law 2016 (6 pages)

26 Aug 2016

7 Jul 2023

[2023] AATA 3486

26 October 2023

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Natural Justice

Statutory Construction

Date(s) of hearing:	10 July 2023 and 22 August 2023
Representative for the Applicant:	Ms Alison Battisson
Human Rights for All Pty Ltd
Representative for the Respondent:	Mr Tigiilagi Etueati
Australian Government Solicitor

EXHIBIT	DESCRIPTION OF EVIDENCE	DATE OF DOCUMENT	DATE RECEIVED
T1	T-Documents (T1-T23, paged 1-295)	Various	16 Feb 2023
R1	Respondent’s Statement of Facts, Issues and Contentions (paged 1-12)	18 Apr 2023	18 Apr 2023
R2	Constitution of Papua New Guinea (paged 1-154)	15 Aug 2023	10 Jul 2023
A1	Applicant’s submissions (paged 1-15)	13 Mar 2023	13 Mar 2023
A2	Correspondence regarding ‘Transfer to Legal Section’ from Australian Human Rights Commission (1 page)	22 Apr 2021	13 Mar 2023
A3	Petition Comments from Change.org (in Microsoft Excel format)	Undated	13 Mar 2023
A4	Papau New Guinea Constitutional Planning Committee Report 1974 – Chapter 4 Citizenship (paras 1-22, paged 1-24)	23 Aug 1974	13 Mar 2023
A5	Constitution of Papau New Guinea (117 pages)	16 Sep 1975	13 Mar 2023
A6	Statutory Declaration of Gus Kuster (2 pages)	12 Mar 2023	13 Mar 2023
A7	Communication in accordance with paragraph 15 of the working Group on Arbitrary Detention’s methods of work (A/HRC/36/38) (10 pages)	8 Feb 2022	13 Mar 2023
A8	Kuster Family Tree	Undated	13 Mar 2023
A9	Home Affairs Response to Request (3 pages)	4 Feb 2023	13 Mar 2023
A10	Australian Citizenship and the Independence of Papau New Guinea – UNSW Law Journal Volume 31(1) (paged 50-74)	undated	13 Mar 2023
A11	Statement of Bailey Lindenberg	17 Mar 2023	19 Mar 2023
A12	Statement of Tenille Saunders	Undated	19 Mar 2023
A13	Statement of Des Johnston	17 Mar 2023	21 Mar 2023
A14	Statement of Melissa Mernin	18 Mar 2023	19 Mar 2023
A15	Statement of Lisan Nolan	20 Mar 2023	20 Mar 2023
A16	Statement of Simone Smith	20 Mar 2023	22 Mar 2023
A17	Joint Statement of Richard and Agnes Kuster	20 Mar 2023	22 Mar 2023
A18	Statement of Drewsilla Cumner	20 Mar 2023	22 Mar 2023
A19	Statement of Linton Element	14 Mar 2023	23 Mar 2023
A20	Citizenship in Question : Chapter 5 – What is a “Real” Australian Citizen? (paged 100-114)	Undated	7 July 2023
A21	Statement of Professor Kim Rubenstein (1 page)	23 Mar 2023	24 Mar 2023
A22	Opinions adopted by the Wording Group on Arbitrary Detention at its ninety-sixth session, 27 March – 5 April 2023 of the Human Rights Council (paged 1-14)	28 Apr 2023	19 May 2023
A23	Advice on the citizenship status of Gus Kuster by Professor Kim Rubenstein (paged 1-8)	18 May 2023	19 May 2023
A24	Curriculum Vitae of Professor Kim Rubenstein (paged 1-19)	Undated	19 May 2023
A25	Psychologist Report of Dr Emily Kwok (paged 1-12)	6 May 2023	19 May 2023
A26	Complete Record (as at 16 May 2023) (paged 1-13)	16 May 2023	19 May 2023
A27	Applicant’s Patient Registration (1 page)	24 Feb 2014	19 May 2023
A28	Legal Aid Application Form (17 pages)	12 Sep 2017	19 May 2023
A29	Criminal Law Application Form (8 pages)	Undated	19 May 2023
A30	Caboolture State High School Record (1 page)	12 Mar 1993	13 Jun 2023
A31	Citizenship in Question – Evidentiary Birthright and Statelessness (38 pages)	Undated	24 Mar 2023
A32	Constitutional Amendment No. 42 (Dual Citizenship) Law 2016 (6 pages)	26 Aug 2016	7 Jul 2023