Morea and Minister for Immigration and Multicultural and Indigenous Affairs

[2005] AATA 459

Administrative

Appeals
Tribunal

 

DECISION AND REASONS FOR DECISION [2005] AATA 459

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No A2004/238

GENERAL ADMINISTRATIVE DIVISION		)
Re		GLENYSE MOREA

Applicant

And MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

Respondent

DECISION

Tribunal Mr J.W. Constance, Senior Member

Date20 May 2005

PlaceCanberra

Decision The decision of the Minister for Immigration and Multicultural and Indigenous Affairs made 21 June 2004 is affirmed.

..............................................

CATCHWORDS

CITIZENSHIP – resumption of citizenship - whether section 23AA applies – applicant born in Papua prior to Independence – whether applicant did an act other than marriage to obtain Papua New Guinea citizenship – whether applicant is, or was, entitled to permanent residency – whether applicant still an Australian citizen – Tribunal confined to review of decision under section 23AA – section 23AA does not apply – decision affirmed

Australian Citizenship Act 1948 (Cth) – s 23AA, 10, 5

Papua New Guinea Independence (Australian Citizenship) Regulations (Cth) – reg 4

REASONS FOR DECISION

20 May 2005 Mr J.W. Constance, Senior Member

1.      Ms Morea is seeking a review of a decision of the Minister refusing her application to resume her Australian citizenship under section 23AA of the Australian Citizenship Act (Cth) 1948.

2.      For the reasons set out, the decision of the Minister will be affirmed.

FACTS

3. There is no dispute as to the facts in this matter. The findings are based on the documents filed pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 (Cth) unless otherwise stated. I am satisfied as to these findings on the balance of probabilities.

4.      Ms Morea was born in Papua on 20 December 1969 and is now 35 years old. Both her parents were born in Papua.

5.      Some time prior to September 1971 Ms Morea’s father, Harold Hara Wamala, joined the Papuan Pacific Islands Regiment of the Australian Army.  By September 1971 he held the rank of Sergeant.

6.      At a time prior to September 1971 Sergeant Wamala was granted the right to reside in Australia.  Despite the best efforts of the solicitors for the Minister the document granting this right of residency cannot be located.  However a Defence document dated 11 October 1971 records:

“Early in September 1971 Papuan Pacific Islands Regiment (PIR) Sergeant H Hara applied for expatriate conditions of service after gaining the right to reside in Australia”.[1]

[1] Ex. R8.

Mr Wamala also completed a form renouncing his right to permanent residence in Australia on 30 October 1975.  The renunciation did not attach or re    quest any proof of the person’s right to permanent residency in Australia or another foreign country. The form was structured so that a person  “…being to the best of [their] knowledge entitled to …permanent residence in Australia” could renounce that right by completing their name, birthplace and name of their Grandparents, and signing and dating below the renunciation.

7.      It also appears from a letter of 7 July 1971 from the Australian Military Forces that Mr Wamala may have become a naturalized Australian citizen sometime prior to that date.[2]  A copy at Mr Wamala’s Application to join the ARA also dated 7 July 1971 states “I am a Naturalised Australian”.[3]  There is no further evidence before me as to Mr Wamala’s naturalization.

[2] Ex. R5.

[3] Ex. R4.

8.      On 16 September 1975 Papua became part of the independent nation of Papua New Guinea.

9.      As mentioned at paragraph 6 above, on 30 October 1975 Mr Wamala renounced his right to permanent residence in Australia.  On the same day and on the same form he declared his loyalty to the Independent State of Papua New Guinea.[4]  Mr Wamala did not purport to renounce a right of residence in Australia on behalf of Ms Morea who was then 5 years old.

[4] Document T7 and T1 in Ex. A1.

10.     Ms Morea has not taken any action to renounce any right to residency in Australia which she may have possessed (and which she still may possess) nor has she taken any action (other than her marriage) to acquire nationality or citizenship of a country other than Australia.

11.     By a declaration received by the Australian High Commission in Port Moresby on 16 October 2003 Ms Morea sought to resume her Australian citizenship under section 23AA of the Act.  

THE LAW

12.     At the time Ms Morea was born, and until Papua New Guinea became independent, Papua was part of Australia for the purposes of the Act.  During this period section 5 of the Act defined Australia to include “the Territories which are not trust territories”, with Papua not being a trust territory.

13.     Section 10 of the Act provided, in part:

“(1) Subject to this section, a person born in Australia after the commencement of this Act shall be an Australian citizen.”

14.     At her birth Ms Morea became an Australian citizen and continued to hold that citizenship on 16 September 1975 (Independence Day).

15.     Section 65 of the Constitution of Papua New Guinea provides, in part:

“(1) A person born in the country before Independence Day who has two grand-parents who were born in the country or an adjacent area is a citizen.

…

(4) Subsections (1) and (2) do not apply to a person who:

(a) has a right (whether revocable or not) to permanent residence in Australia; or

(b) is a naturalized Australian citizen;

………………………………………………………………………………………………….

unless that person renounces his right to residence in Australia or his status as a citizen of Australia or of another country in accordance with subsection (5).”

16.     Regulation 4 of the Papua New Guinea Independence (Australian Citizenship) Regulations (Cth) provides:

“4. A person who –

(a) immediately before Independence Day, was an Australian citizen within the meaning of the Act; and

(b) on Independence Day becomes a citizen of the Independent State of Papua New Guinea by virtue of the provisions of the Constitution of the Independent State of Papua New Guinea, ceases on that day to be an Australian citizen.”

17.     Section 23AA of the Act, pursuant to which Ms Morea seeks to resume her Australian citizenship, contains a number of provisions which must be met by an applicant before citizenship can be resumed under that section.  The requirements of paragraph (1)(a) are:

“(1)     Where:

(a)       a person:

(i)        has done a voluntary and formal act, other than marriage, by virtue of which the person acquired the nationality or citizenship of a country other than Australia; or

(ii)       has done any act or thing:

(A)      the sole or dominant purpose of which; and

(B)      the effect of which;

was or is to acquire the nationality or citizenship of a foreign country;

being an act or thing that resulted in the person ceasing to be an Australian citizen;”

APPLICATION OF THE LAW TO THE FACTS

18.     There is no evidence that Ms Morea was entitled to permanent residence in Australia at the time Papua New Guinea became independent.  It is possible that she was granted this right at the time it was granted to her father, but unfortunately no documents evidencing this have been located.  It is clear that if Ms Morea did have such a right she has done nothing to renounce it and her father did not purport to renounce her right (if she had one) when he renounced his own right of residency on 30 October 1975.

19.     Further there is no evidence as to whether Ms Morea became a naturalized Australian citizen by reason of her father’s naturalization, if in fact her father did become a naturalized Australian citizen.  If Ms Morea did become so naturalized, there is nothing to suggest that she has not retained this citizenship.

20.     On the basis of the material before me I am not satisfied that Ms Morea comes within the provisions of section 23AA of the Act.  She has not done any voluntary or formal act (other than marriage) by which she acquired the nationality or citizenship of a country other than Australia.  She has not done any act or thing to acquire the nationality or citizenship of a foreign country.  Consequently she does not meet the requirements of section 23AA (1)(a).

21.     In the absence of evidence as to whether Ms Morea had a right of permanent residence in Australia, or was a naturalized Australian citizen, I cannot determine whether she became a citizen of Papua New Guinea under section 65 of the Constitution of that country.  However, even if she did, it was not as a result of any act on her part and therefore section 23AA of the Act would not apply.  Evidence of whether Ms Morea has a right of permanent residence and whether she is a naturalized Australian citizen may have a bearing on the question of whether Ms Morea ever lost her Australian citizenship, but that is not the question before me.

22.     The decision under review is the decision refusing Ms Morea’s application for a resumption of citizenship under section 23AA and the Tribunal is confined to a review of that decision.

DECISION

23.     For the reasons set out the decision of the Minister for Immigration and Multicultural and Indigenous Affairs made 21 June 2004 is affirmed.

I certify that the 23 preceding paragraphs are a true copy of the reasons for the decision herein of Mr J.W. Constance, Senior Member

Signed:         .....................................................................................
  Chelsey Bell (Associate)

Date/s of Hearing  7 April 2005
Date of Decision  20 May 2005
Representation for the Applicant    Self
Solicitor for the Respondent          Australian Government Solicitor