Lohia and Minister for Immigration and Citizenship - [2008] AATA 998

Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2008] AATA 998
ADMINISTRATIVE APPEALS TRIBUNAL )
) No 2007/4367

GENERAL ADMINISTRATIVE DIVISION )

Re KENNEDY LOHIA

Applicant

And

MINISTER FOR IMMIGRATION AND CITIZENSHIP

Respondent

DECISION

Tribunal Dr P McDermott, RFD, Senior Member
Date6 November 2008
PlaceBrisbane

Decision
The Tribunal affirms the decision under review.

................[Sgd]..............................
Senior Member

CATCHWORDS
IMMIGRATION AND CITIZENSHIP – Citizenship – Application to become an Australian citizen again – applicant citizen of Australia at birth – on independence in 1975 became citizen of Papua New Guinea and ceased to be an Australian citizen – decision under review affirmed.
Australian Citizenship Act 1948 ss 5,10,18,19,20,23AA, 23B, 23, 25
Constitution of the Independent State of Papua New Guinea s 65
Papua New Guinea Independence Act 1975 ss 4, 6
Papua New Guinea Independence (Australian Citizenship) Regulations 1975
Papua New Guinea Independence (Australian Citizenship of Young Persons) Regulations 1980
Migration Act 1958 (Cth)
Australian Citizenship Act 2007 (Cth) ss 21, 29
Australian Citizenship (Transitional and Consequential) Act 2007 s 42
Minister for Immigration and Multicultural Affairs and Indigenous Affairs v Walsh (2002) 125 FCR 31
Re Minister for Immigration and Multicultural Affairs, Ex Parte Ame (2005) 222 CLR 439
Re Gaigo and Minister for Immigration and Citizenship [2008] AATA 590
REASONS FOR DECISION

6 November 2008 Dr P McDermott, RFD, Senior Member

INTRODUCTION
1.      Mr Kennedy Lohia, who has previously held Australian citizenship, has made an application to become an Australian citizen again. On 12 July 2007, Mr Lohia was advised that his application was refused by a delegate of the Minister. Mr Lohia now seeks a review of that decision by this Tribunal.
2.      The parties have consented to this application being determined without a hearing pursuant to s 34J of the Administrative Appeals Act 1975.
3. In considering this application, I have been greatly assisted by the reasons for decision of a Deputy President of this Tribunal who has recently examined the relevant issues which arise in the case of a person in the position of Mr Lohia, including the significance of ss 4 and 6 of the Papua New Guinea Independence Act 1975.[1]
[1] Re Gaigo and Minister for Immigration and Citizenship [2008] AATA 590 (Hon Dr B H McPherson CBE, Deputy President).
BACKGROUND
4.      Mr Lohia was born in 1968[2] in Port Moresby in the then Territory of Papua. Mr Lohia then became an Australian citizen by birth. This is because s 10(1) of the Australian Citizenship Act 1948 provided that a person born in Australia after the commencement of that Act became an Australian citizen by birth. The exceptions to s 10(1) have no application to Mr Lohia.
[2] To protect the privacy of Mr Lohia, in these reasons I do not mention his actual date of birth.
5. It is not in issue that when Mr Lohia was born the Territory of Papua was then part of Australia. The submission on behalf of the Minister (which was made in respect of a…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Lohia and Minister for Immigration and Citizenship

Details

AGLC: Lohia and Minister for Immigration and Citizenship [2008] AATA 998
Case: [2008] AATA 998
Decision Date: 6 November 2008

CaseChat Overview and Summary

The applicant, Lohia, sought to become an Australian citizen again after having become a citizen of Papua New Guinea (PNG) upon PNG's independence in 1975. The Minister for Immigration and Citizenship had affirmed a decision to reject Lohia's application. The Federal Court of Australia was called upon to review this decision. The court was tasked with determining whether the Minister's decision to affirm the rejection of Lohia's application to become an Australian citizen again was legally sound. Specifically, the court had to consider the applicability of various sections of the Australian Citizenship Act 1948 and related legislative instruments in the context of Lohia's situation.

The court examined whether Lohia's status as a citizen of Australia at birth, and subsequent loss of Australian citizenship upon PNG's independence in 1975, meant that she could now be granted Australian citizenship again. The court considered relevant sections of the Australian Citizenship Act 1948, the Constitution of the Independent State of PNG, the Papua New Guinea Independence Act 1975, and other legislative instruments. It also referred to previous case law, such as Minister for Immigration and Multicultural Affairs and Indigenous Affairs v Walsh and Re Minister for Immigration and Multicultural Affairs, Ex Parte Ame.

After a thorough review, the court concluded that the Minister's decision to affirm the rejection of Lohia's application was correct. The court found that Lohia's circumstances did not meet the criteria for re-acquisition of Australian citizenship under the Australian Citizenship Act 1948 and the relevant legislative instruments. The court held that the Minister's decision was not flawed and was in accordance with the law. Consequently, the Tribunal's decision to affirm the rejection of Lohia's application was upheld.

Orders

Orders of the court

The Tribunal affirms the decision under review.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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