Malabag and Minister for Immigration and Citizenship

[2008] AATA 994

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2008] AATA 994

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No 2007/3836

GENERAL ADMINISTRATIVE DIVISION		)
Re		NELLIE MALABAG

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 not a citizen of Australia at birth – applicant not a citizen by descent – decision under review affirmed.

Australian Citizenship Act 1948 ss 5,10,18,19,20,23AA, 23B, 23, 25

Australian Citizenship Act 2007 (Cth) ss 21, 29

Australian Citizenship (Transitional and Consequential) Act 2007 s 42

REASONS FOR DECISION

6 November 2008 Dr P McDermott, RFD, Senior Member  

INTRODUCTION

1.      Ms Nellie Malabag[1] has made a declaration of desire to resume Australian citizenship.  On 12 July 2007, Ms Malabag was advised that her application was refused by a delegate of the Minister.  Ms Malabag now seeks a review of that decision by this Tribunal.

[1] In these reasons I have spelt the name of the applicant as expressed in her application.  I note that the given name “Nelly” appears on the birth certificate of the applicant.

2.      The parties have consented to this application being determined without a hearing pursuant to s 34J of the Administrative Appeals Act 1975.

APPLICANT BORN IN THE TRUST TERRITORY

3.      Ms Malabag was born in 1970[2] in Rabual. At the time she was born, Rabual was part of the Trust Territory of New Guinea. At that time, s 5 of the Papua and New Guinea Act 1949 provided that “the identity and status of the Territory of Papua as a Possession of the Crown and the identity and status of the Territory of New Guinea as a Trust Territory shall continue to be maintained”.

[2] To protect the privacy of Ms Malabag, in these reasons I do not mention her actual date of birth.

CLAIM OF APPLICANT TO HAVE HAD AUSTRALIAN CITIZENSHIP 

4.      Ms Malabag has claimed that she had Australian citizenship “by birth and lawful grant”.

5. I find that when Ms Malabag was born she did not then acquire Australian citizenship. Section 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.  However, at the time that she was born, the Trust Territory of New Guinea was not part of Australia for the purposes of the Australian Citizenship Act 1948. At that time, “Australia” was defined under s 5 of that Act (as inserted by the Nationality and Citizenship Act 1953) as including “the Territories of the Commonwealth that are not trust territories”.  It follows that as Ms Malabag was born in a Trust Territory she did not acquire Australian citizenship upon her birth.  Her status before Independence would have been as an Australian Protected Person.[3]

[3] Goldring J, Constitution of Papua New Guinea (1978), 304.  I make the observation that this book was regarded as authoritative by the High Court of Australia in Re Minister for Immigration and Multicultural Affairs; ex Parte Ame (2005) 222 CLR 439.

6.      Ms Malabag has been advised that a search of records of the Department and an examination of the documents supplied by her has provided no evidence that she has been an Australian citizen.  In these circumstances, there is no evidence before me that she has acquired such citizenship by any “lawful grant” as she has claimed.

7.      Ms Malabag has claimed that she is an Australian citizen because at the time of her birth her parents were Australian citizens.  However, as a person born outside of Australia as defined in the Australian Citizenship Act 1948, she could only acquire such citizenship by descent.  There is no material before me to evidence that at any time she has made an application for citizenship by descent.

DECLARATION OF APPLICANT

8. On 23 June 2006, Ms Malabag lodged a “declaration of desire to resume Australian citizenship” under sections 23A, 23AA, 23AB or 23B of the Australian Citizenship Act 1948.

9. Ms Malabag has asserted that she has lost her citizenship under ss 20 and 23 of the Australian Citizenship Act 1948.  

10. Section 20 of the Australian Citizenship Act1948 applied to naturalized and registered persons who have resided outside Australia (which included the then Territory of Papua) and New Guinea for a continuous period of seven years. I am satisfied that s 20 of that Act has never had any application to Ms Malabag who was never a naturalized or registered person.

11. Section 23 of the Australian Citizenship Act1948 applied where a responsible parent of a child ceased to be an Australian citizen under s 18 or s 19 of that Act.  I am satisfied that neither s 18 (which refers to where an adult person (of the age of twenty-one years) had made a declaration renouncing her Australian citizenship) or s 19 (which refers to a loss of citizenship by service in the armed forces of an enemy country) had any application at all to a parent of Ms Malabag.

12. Ms Malabag has relied upon ss 23A and 23B of the Australian Citizenship Act 1948. Even though those provisions are no longer in force, in my view they never had any application to Ms Malabag. A declaration could be made under ss 23A and s 23B of that Act where a person had sought to resume Australian citizenship that was lost under ss 20 and 23 of that Act. I have already mentioned that I consider that ss 20 and 23 of that Act have never had any application to the case of Ms Malabag. This is why I am satisfied that she has not been prejudiced (as she asserts) by her declaration not having been considered under the Australian Citizenship Act1948.

13.     The Australian Citizenship (Transitional and Consequential) Act 2007 provides, in Schedule 3, for declarations for the resumption of citizenship under the Australian Citizenship Act 1948 to be taken to an application to be an Australian citizenship again under s 29 of the Australian Citizenship Act 2007.

14.     Ms Malabag is concerned that her declaration was not considered under the Australian Citizenship Act 1948. However, I am satisfied that she was not disadvantaged as her case did not come within the ambit of ss 23A and s 23B of that Act.

15.     As there is no evidence that Ms Malabag was ever an Australian citizen, I am of the opinion that does not qualify under s 29 of the Australian Citizenship Act 2007 to apply to resume a citizenship that she never had.

16.     Ms Malabag also relies upon s 21(7) of the Australian Citizenship Act 2007 and the fact that her parents were born in Papua.  In my view her application cannot succeed under s 21(7) as a parent of the applicant had to be born in “Australia” as defined by the Australian Citizenship Act 2007: see s 21(7)((b).  In s 3 of the Australian Citizenship Act 2007, “Australia” is defined to include the external Territories.  At the time of the commencement of the Australian Citizenship Act 2007, Papua had long ceased to be a Territory of Australia.

CONCLUSION

17.     There is no evidence before me that Ms Malabag ever held Australian citizenship.  In these circumstances I am of the opinion that she does not qualify to apply for Australian citizenship again under s 29 of the Australian Citizenship Act 2007.

DECISION

18.     I affirm the decision under review.

I certify that the 18 preceding paragraphs are a true copy of the reasons for the decision herein of Dr P McDermott, RFD, Senior Member

Signed: .....................[Sgd}........................................................
  Elizabeth Young, Research Associate

Hearing on the Papers              17 September 2008
Date of Decision  6 November 2008