Martin and Minister for Immigration and Citizenship

[2011] AATA 733

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2011] AATA 733

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No 2011/2273

GENERAL ADMINISTRATIVE DIVISION		)
Re		EUGENE MARTIN

Applicant

And MINISTER FOR IMMIGRATION AND CITIZENSHIP

Respondent

DECISION

Tribunal Dr P McDermott, RFD, Senior Member

Date20 October 2011

PlaceBrisbane

Decision The Tribunal affirms the decision under review.

.................[Sgd].............................

Senior Member

CATCHWORDS

CITIZENSHIP – Australian Citizenship Act 2007 – Application for resumption of Australian citizenship – Cessation of Australian citizenship by Papua New Guinea Independence (Australian Citizenship) Regulations 1975 – Citizenship not lost under Australian Citizenship Act 2007 or Australian Citizenship Act 1948 – No parent born in Australia at time of application – Provisions for resumption of citizenship not satisfied – Decision under review affirmed

Australian Citizenship Act 2007 (Cth) ss 3, 10, 21, 29, 33, 36, 52

Australian Citizenship Act 1948 (Cth) ss 5, 17, 18, 20, 23

Constitution of the Independent State of Papua New Guinea, s 65

Nationality and Citizenship Act 1948 – 52 (Cth)

Nationality and Citizenship Act 1953 (Cth)

Papua New Guinea Independence (Australian Citizenship) Regulations 1975 (Cth)

Papua New Guinea Independence (Australian Citizenship of Young Persons) Regulations 1980 (Cth)

Air Caledonie International v Commonwealth (1988) 165 CLR 462

Minister for Immigration and Multicultural Affairs and Indigenous Affairs v Walsh (2002) 125 FCR 31

Re Gaigo and Minister for Immigration and Citizenship [2008] AATA 59

Re Minister for Immigration and Multicultural and Indigenous Affairs, ex parte Ame (2005)  222 CLR 439

REASONS FOR DECISION

20 October 2011 Dr P McDermott, RFD, Senior Member  

INTRODUCTION

1. Mr Eugene Martin has made an application to resume Australian citizenship. On 11 May 2011 his application was refused by a delegate of the Minister. He now seeks a review of that decision by this Tribunal. The Tribunal has jurisdiction to review the decision of the delegate under s 52(1)(d) of the Australian Citizenship Act 2007 (Cth).

2.      In considering this application I have been greatly assisted by the reasons for decision of a Deputy President of this Tribunal who has examined the relevant issues which arise in a case such as this application, including the significance of the Papua and New Guinea Independence Act 1975.[1]

[1] Re Gaigo and Minister for Immigration and Citizenship [2008] AATA 590.

PROCEDURAL MATTERS

3.      At the commencement of the hearing the representative of Mr Martin informed this Tribunal that Mr Martin, who resides in Papua New Guinea, would not give evidence by telephone at the hearing. The representative advised me that Mr Martin was seeking a determination of his application on the material that had been filed in the Tribunal.

BACKGROUND

4.      Mr Martin was born in 1970[2] in the Territory of Papua which was then defined to be part of Australia. At the time of his birth s 5 of the Australian Citizenship Act 1948 (Cth) provided that “‘Australia’ includes the Territories of the Commonwealth that are not trust territories”.[3] Given that the territory of Papua was part of Australia in 1962, Mr Martin was an Australian citizen by birth. This is because s 10(1) of the Australian Citizenship Act 1948 (Cth) provided that a person born in Australia after the commencement of that Act became an Australian citizen by birth. There are some exceptions to s 10(1) which have no application to this case.

[2] In these reasons, which are a matter of public record, it is not necessary for me to specify the actual date of birth.

[3] This definition was inserted into the then Nationality and Citizenship Act 1948-52 by s 2 of the Nationality and Citizenship Act 1953.

EFFECT OF INDEPENDENCE

5.      The Papua and New Guinea Independence Act 1975 (Cth) provided that the territory of Papua became the Independent State of Papua New Guinea on 16 September 1975 (“Independence Day”). Section 65(1) of the Constitution of the Independent State of Papua New Guinea (“PNG Constitution”) provides that a person born in the country before Independence Day who had two grandparents who were born in the country or an adjacent area gained automatic citizenship of the new State of Papua New Guinea. Mr Martin was born in the country before Independence Day, and had at least two grandparents who were born in Papua New Guinea.

6. Section 65(1) of the PNG Constitution is, by s 65(4) of that Constitution, expressed not to apply to a person who has “a right (whether revocable or not) to permanent residence in Australia” (s 65(4)(a)), or to a person who “is a naturalized Australian citizen” (s 65(4)(b)) or “is registered as an Australian citizen under section 11 of the Australian Citizenship Act1948 – 1975 of Australia” (s 65(4)(c)) or a person who “is a citizen of another country other than Australia” (s 65(4)(d)).

7. I am satisfied that s 65(4) of the PNG Constitution had no application to Mr Martin, who did not have a right of permanent residence in Australia, was not a naturalized Australian citizen, was not registered as an Australian citizen under s 11 of the Australian Citizenship Act 1948 – 1975 (Cth) and was not a citizen of another country other than Australia. Indeed, prior to Independence Day his status as an Australian citizen did not give him the right to enter and remain on the Australian mainland. It was only some years after Independence Day, in 1984, that Australian citizens finally had the right to reside in Australia.[4]

[4] Minister for Immigration and Multicultural and Indigenous Affairs v Walsh (2002) 189 ALR 694 at 697, citing Air Caledonie International v Commonwealth (1988) 165 CLR 462 at 469.

8.      I find that Mr Martin became a citizen of the Independent State of Papua New Guinea on Independence Day by the operation of s 65(1) of the PNG Constitution. This is because he satisfies the requirements for the operation of s 65(1) by being born in the country before Independence Day as well as having two grandparents who were born in the country. I also find that the exception in s 65(4) of the PNG Constitution had no application to Mr Martin.

CESSATION OF AUSTRALIAN CITIZENSHIP

9.      When Mr Martin became a citizen of the Independent State of Papua New Guinea on Independence Day, he also ceased by operation of Australian law to be an Australian citizen. This cessation of Australian citizenship occurred by virtue of the operation of regulation 4 of the Papua New Guinea Independence (Australian Citizenship) Regulations 1975 (Cth). This regulation applies to Mr Martin who immediately before Independence Day was an Australian citizen; and who on that day became a citizen of the Independent State of Papua New Guinea under the provisions of the PNG Constitution. The regulation provides that such a person ceases on Independence Day to be an Australian citizen. The validity of this regulation was upheld by the High Court of Australia in Re Minister for Immigration and Multicultural and Indigenous Affairs, ex parte Ame.[5]

[5] (2005) 222 CLR 439.

PAPUA NEW GUINEA INDEPENDENCE (AUSTRALIAN CITIZENSHIP OF YOUNG PERSONS) REGULATIONS 1980

10.     On Independence Day Mr Martin was under the age of 19 years. This raises for consideration the application of regulation 2 of the Papua New Guinea Independence (Australian Citizenship of Young Persons) Regulations 1980 (Cth). In Minister for Immigration and Multicultural and Indigenous Affairs v Walsh[6] it was held that regulation 2 only has application to a young person who on Independence Day had a right of permanent residence in Australia.

[6] (2002) 125 FCR 31 at 39 at [35].

11.     Prior to Independence Day, Mr Martin would have required a permanent or temporary entry permit under the Migration Act 1958 (Cth) to enter the mainland of Australia.[7]

[7] Minister for Immigration and Multicultural Affairs and Indigenous Affairs v Walsh (2002) 125 FCR 31 at 35 – 36, [15] – [21], cited in Re Minister for Immigration and Multicultural and Indigenous Affairs; ex parte Ame (2005) 222 CLR 439 at 445.

12.     In Re Minister for Immigration and Multicultural and Indigenous Affairs; ex parte Ame,[8] the High Court of Australia rejected a submission that, as a matter of constitutional principle, an Australian citizen had a right of permanent residence in Australia. This has the consequence that on Independence Day, when Mr Martin last held Australian citizenship, that citizenship did not give him the right to enter the Australian mainland.[9]

[8] (2005) 222 CLR 439.

[9] Goldring J, The Constitution of Papua New Guinea (1978), 204.

13.     There is no evidence that Mr Martin had a right of permanent residence in Australia on Independence Day. Therefore, regulation 2 has no application to his case.

AUSTRALIAN CITIZENSHIP ACT 2007

14.     Australian legislation has introduced the concept of Australian citizenship and prescribes the method of its application and loss.[10] It is by the operation of the Australian Citizenship Act 2007 (Cth) (“the Act”) that the application of Mr Martin falls to be determined.

[10] Minister for Immigration and Multicultural Affairs and Indigenous Affairs v Walsh (2002) 125 FCR 31 at [1].

15.     On 7 September 2010, Mr Martin made an application to resume Australian citizenship under s 29 of the Act. In order for Mr Martin to succeed in his application under s 29, he must have lost his Australian citizenship under either s 29(2) or s 29(3) of the Act.  

16.     There is no evidence that Mr Martin lost his citizenship under s 29(2) of the Australian Citizenship Act 2007 (Cth). This provision concerns the loss of citizenship under either ss 33 or 36 of the Act. There is no evidence that the applicant lost his citizenship under those sections of the Act. In fact he lost his citizenship on Independence Day, some decades before the passage of the Act.

17. There is also no evidence that Mr Martin lost his citizenship under s 29(3) of the Act. This provision concerns the loss of citizenship under ss 17, 18, 20 and 23 of the Australian Citizenship Act 1948 (Cth). The Australian Citizenship Act 1948 (Cth) is referred to in s 29(3) of the Act as the “old Act” (see the definition of “old Act” in s 3 of the Australian Citizenship Act 2007). Mr Martin did not lose his Australian citizenship under either ss 17, 18, 20 or 23 of the Australian Citizenship Act 1948 (Cth). He lost his Australian citizenship by the operation of regulation 4 of the Papua New Guinea Independence (Australian Citizenship) Regulations 1975 (Cth).

18.     As Mr Martin is unable to satisfy s 29 of the Act, his application cannot succeed.

19.     At the hearing of the application I averted to s 21(7) of the Act,  which enables certain persons who were born in Papua before Independence Day to become Australian citizens. However, to qualify under that provision an applicant must have a parent who is born in Australia (within the meaning of the Act  at the time the person made the application). Mr Martin did not have a parent who was born in Australia as defined by s 3 of the Act as Papua was not a territory of Australia at the time of the passage of the Act.

DECISION

20.I affirm the decision under review.

I certify that the 20 preceding paragraphs are a true copy of the reasons for the decision herein of Dr P McDermott, RFD, Senior Member

Signed: ...........................[Sgd]..................................................
   Research Associate

Date/s of Hearing  21 September 2011
Date of Decision  20 October 2011
For the Applicant  Mary Martin
Solicitor for the Applicant          Tigilagi Eteuati, Clayton Utz