Norris (Junior) and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Citizenship) - [2021] AATA 1399

Norris (Junior) and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Citizenship) [2021] AATA 1399 (17 May 2021)
Division:GENERAL DIVISION
File Number(s): 2020/2169
Re:Joanofarc Norris (Junior)
APPLICANT

AndMinister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
RESPONDENT

DECISION
Tribunal:Senior Member K Millar
Date:17 May 2021
Place:Adelaide

The decision under review is set aside and remitted to the Minister for reconsideration in accordance with the direction that Ms Norris meets s.16(2)(a) of the Australian Citizenship Act 2007.
.........................[Sgnd]..................................
Senior Member K Millar
Catchwords
Application for Australian citizenship by descent – Applicant’s mother born in Papua prior to Papua New Guinea Independence Day – whether Applicant’s mother was an Australian citizen at time of Applicant’s birth - whether Applicant’s mother had a right to permanent residence in Australia – grant of right to of permanent residence by the Minister for Immigration - whether right to permanent residence renounced - matter remitted for reconsideration in accordance with the finding that the Applicant has a parent who was an Australia citizen at the time of her birth
Legislation
Acts Interpretation Act 1901 (Cth)
Australian Citizenship Act 1948 (Cth)
Australian Citizenship Act 2007 (Cth)
Constitution of the Independent State of Papua New Guinea
Migration Act 1958-1973 (Cth)
Papua New Guinea Independence Act 1975
Cases
Charlie v Minister for Immigration and Citizenship [2008] FCA 1025
Kondolo and Minister for Immigration, Multicultural and Indigenous Affairs [2004] AATA 867
Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Ame [2005] HCA 36
Minister for Immigration and Multicultural and Indigenous Affairs v Walsh [2002] FCAFC 205
Ruddock v Vadarlis [2001] FCA 1329
Secondary Materials
Papua New Guinea Independence (Australian Citizenship of Young Persons) Regulations 1980
Revised Citizenship Procedural Instructions (RCPI)
REASONS FOR DECISION
17 May 2021
Senior Member K Millar
INTRODUCTION

Ms Norris was born in Port Moresby in Papua New Guinea on 21 September 2001. On 20 October 2018 she applied for Australian citizenship by descent on the basis that her mother, Ms Joanofarc Norris (Snr), was an Australian citizen at the time of her birth.
Ms Norris (Snr) was born in 1960 in what was then Papua. Her parents are Mr Peter Solien and Mrs Alice Solien. At the time of her birth Ms Norris (Snr) was an Australian citizen as Papua was then a Territory of Australia.
On 30 May 2018, Ms Norris (Snr) was issued with an Australian passport and a Certificate of Australian citizenship. However, in September 2019, a delegate of the Minister for Immigration, Citizenship and Multicultural Affairs found that Ms Norris (Snr) ceased to be an Australian citizen on Papua New Guinea Independence Day. This resulted in the cancellation of her passport. This decision was not reviewable.
As a result of the finding that her mother was not an Australian citizen, Ms Norris’ application for Australian citizenship by descent was refused on 19 March 2020. Ms Norris has applied for a review of this decision, and submits her mother continued to be…

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.

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Details

AGLC: Norris (Junior) and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Citizenship) [2021] AATA 1399
Case: [2021] AATA 1399
Decision Date: 17 May 2021

CaseChat Overview and Summary

The Administrative Appeals Tribunal considered an application for Australian citizenship by descent made by Norris (Junior). The dispute concerned whether the applicant's mother was an Australian citizen at the time of the applicant's birth, which in turn would determine the applicant's eligibility for citizenship by descent. The Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs was the respondent.

The Tribunal was required to determine whether the applicant's mother was an Australian citizen at the time of the applicant's birth. This involved assessing whether she was an Australian citizen by birth, given she was born in Papua prior to Papua New Guinea Independence Day. Further, the Tribunal had to consider whether the applicant's mother had a right to permanent residence in Australia, and if so, whether that right had been renounced.

The Tribunal found that the applicant's mother was an Australian citizen at the time of the applicant's birth. This conclusion was based on the operation of the *Australian Citizenship Act 1948* (Cth) and the circumstances of her birth in Papua prior to its independence. The Tribunal determined that the applicant's mother had acquired Australian citizenship by birth and had not renounced her right to permanent residence in Australia. Consequently, the matter was remitted for reconsideration in accordance with the finding that the applicant has a parent who was an Australian citizen at the time of her birth.

Orders