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

1. 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.

2. 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. 

3. 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.    

4. 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 an Australian citizen after Papua New Guinea Independence Day. The Minister maintains Ms Norris (Snr)’s Australian citizenship ceased on Papua New Guinea Independence Day. 

5. A person born in Papua who was an Australian citizen and who was granted a right of permanent residence in Australia before Papua New Guinea Independence Day on 16 September 1975 remained an Australian citizen. A person who was not granted a right of residence, and who did not meet any other requirements to remain an Australian citizen, became a citizen of Papua New Guinea. 

6. The issue to be decided is whether Ms Norris had a parent who was an Australian citizen at the time of her birth on 21 September 2001. To determine this question, the Tribunal must decide if Ms Norris (Snr) was an Australian citizen at that time, or if she became a citizen of Papua New Guinea on Papua New Guinea Independence Day.  

   LEGISLATIVE FRAMEWORK

7. Under s.16(2) of the Australian Citizenship Act 2007 states a person born outside Australia on or after 26 January 1949 is eligible to become an Australian citizen if (among other things) a parent of the person was an Australian citizen at the time of their birth.

8. Papua was a Territory of Australia until Papua New Guinea Independence Day on 16 September 1975. Until this date, a person born in Papua was an Australian citizen by virtue of s.10(1) of the then Australian Citizenship Act 1948, as the definition of Australia included its external territories.

9. However, Australian citizenship did not entitle people born in Papua to permanent residence in Australia,[1] or to enter and remain in Australia.[2]  To have a right to enter Australia, a person born in Papua was required to apply for and be granted such a right.[3] 

   [1] Minister for Immigration and Multicultural and Indigenous Affairs v Walsh [2002] FCAFC 205 (Walsh).

   [2] Re MIMIA: ex parte Ame [2005] 222 CLR 437.

   [3] Ibid, at [12].

10. Under the Papua New Guinea Independence Act 1975 and the Papua New Guinea Independence (Australian Citizenship) Regulations 1975, a person who was an Australian citizen under the Australian Citizenship Act 1948 and who on Independence Day became a citizen of Papua New Guinea ceased to be an Australian citizen. This means that if Ms Norris (Snr) became a citizen of Papua New Guinea on Papua New Guinea Independence Day, she ceased to be an Australian citizen. 

11. The circumstances in which a person acquired Papua New Guinea citizenship on Independence Day are set out at s.65 of the Constitution of the Independent State of Papua New Guinea (PNG Constitution). Subsection 65(1) states a person born in the country before Independence Day who has two grandparents who were born in the country or an adjacent area is a citizen. 

12. Under s.65(4)(a), the general rule that a person would become a citizen of Papua New Guinea does not apply to a person who “has a right (whether revocable or not) to permanent residence in Australia” unless that person renounces his or her right to residence in accordance with s.65(5).

13. The effect of this provision was described by the Full Court of the Federal Court in Minister for Immigration and Multicultural and Indigenous Affairs v Walsh at [9] as:

    “Plainly a significant proportion of the population of Papua at this time would have comprised persons who were born in Papua and were thus Australian citizens by birth. The clear intention of s 65 was that such persons would (generally) become PNG citizens. Only those who had some further attachment to Australia (that is, those who had a right to permanent residence, who had become naturalised, or had become registered under s 11) were, like citizen of other countries, not to become PNG citizens automatically.”

14. Section 65(5) of the PNG Constitution allows that within two months after Independence Day a person can renounce his or her right to permanent residence in Australia and make the Declaration of Loyalty. 

    RELEVANT DOCUMENTS

15. The Minister provided a Cabinet Minute dated 17 May 1973, Decision No.238 which states:

    1.The Cabinet decided that the Minister for Immigration be given discretion to accord the status of Australian citizen with the right of residence in Australia to a mixed race person born in Papua or New Guinea, where he is satisfied that the individual has been brought up in the European manner, has English as his principal language and is European in outlook. The Cabinet noted that no legislative change would be required and decided that no publicity should be given to this decision.

    2.In arriving at this decision, the Cabinet noted that persons of mixed race would have no absolute right to Australian citizenship, as had been proposed in a former submission in 1960, that the numbers likely to be affected by the Ministerial discretion would not exceed 300, and that United Nations missions which had visited the Territory had wished Australia to take this action. 

16. Other documents which relate to Ms Norris are:

• Instructions for completing an application for permission to enter Australia.[4]

  [4] Supplementary Documents, p 106.

• An application from Mr Solien with Ms Norris (Snr) named as a child included in the application.[5] 

  [5] Ibid, p 30 – 31.

• A memorandum from District Commissioner H L Williams dated 31 October 1967.[6] This concludes Mr Solien is more European in outlook than Papuan. It notes Mr Solien has no plans to visit Australia, but his main desire is to obtain naturalisation as an Australian citizen. The memorandum states he was asked to sign Form No. N.6 under the Nationality and Citizenship Act 1948 – 1960 and this is also enclosed. This form is not included in the documents before the Tribunal. A handwritten annotation on this memorandum states Mr Solien “was born in Papua and is therefore an Australian citizen by birth”.[7]

  [6] Ibid, p 34.

  [7] G-Docs, T2, p 21.

• An application for a right of residence for Mr Solien and his family attached to a memorandum from the Acting Comptroller of Customs, Territory of Papua and New Guinea dated 23 February 1968.[8]

  [8] Supplementary Documents, p 110.

• A memorandum dated 13 June 1969 from P R Heydon, Secretary, Department of Immigration to the Minister.[9] This memorandum states (in summary):

  [9] Ibid, p 28 – 29.

  oThe Minister has the authority under a cabinet decision of May 1962 to accord right of residence to people born of mixed descent to person born in New Guinea if satisfied that they have been brought up in the European manner, have English as their primary language, and are European in outlook. 

  oAll members of the family were born in Papua. Mr Solien and the four children are of mixed descent and Mrs Solien is a Papuan indigene. 

  oThe Territory Administration has confirmed that all members of the family meet the conditions, but that Mr Solien had a criminal record, but has now settled down and carries the respect of those people with whom he works and his social connections.

  oThe Secretary recommends Mr Solien and his family are granted right of residence in Australia subject to their meeting the normal conditions of migrant entry.

  Under the heading “recommendation approved” appears a signature dated 16 June 1968. The Tribunal is satisfied the signature is that of the Hon. Sir Billy Snedden, the then Minister of Immigration.

• A memorandum from H G Irwin (for the Secretary) to the Comptroller of Customs Port Moresby dated 4 July 1968[10] regarding Peter Albert Solien and family stating:

  “Mr. Solien and family may be accorded right of residence in Australia provided they can meet the usual conditions of migrant entry.”

  This appears to have a handwritten annotation “card issued”. However, according to the Minister, no such card has been located. 

• A renunciation of a right to permanent residence in Australia by Mr Solien dated 13 November 1975.[11]

• A memorandum dated 21 August 1996 from the Director, Citizenship Secretariat PNG to the electoral commission[12] with a list of “the names of people who acquired Papua New Guinea citizenship since Independence in 1975.” The attached list names Mr Solien and Mrs Solien under the heading “Automatic Citizens Prior to Independence 1975”. The date Papua New Guinea citizenship was granted to Mr and Mrs Solien is cited as 13 November 1975.[13]

• A memorandum from the Department of Immigration and Ethnic Affairs dated 4 February 1977 to the Secretary, Department of Foreign Affairs stating Mr Solien, a former Australian citizen by birth, ceased to be an Australian citizen on 13 November 1975.[14]

  [10] Ibid, p 115.

  [11] Ibid, p 117.

  [12] G-Docs, T12, p 99.

  [13] Ibid, p 101.

  [14] Supplementary Documents, p 123.

Submissions of the Minister

1. The Minister submits that Ms Norris (Snr) did not have a right of residence in Australia on Papua New Guinea Independence Day and therefore became a citizen of Papua New Guinea and lost her Australian citizenship on this date.

2. The Minister submits that:

   (a)There is no evidence in the form contemplated by the Revised Citizenship Policy Instructions, being a stamp in a passport or a letter of authority, of Ms Norris having a right of residence.

   (b)The documentation that does exist refers to a right of residence provided that (the family) meet the usual conditions of migrant entry. As the right of residence granted is conditional this is not demonstrative of a right of residence being granted.

   (c)Whether a person has a right of residence in Australia depends on whether the person is the beneficiary of the exercise of a power under s.6(2) of the Migration Act 1958 as it was on Independence Day, and neither the policy nor the Cabinet minute can override the operation of the Migration Act.

   (d)Ms Norris (Snr) meets the definition of “immigrant” in the Migration Act 1958.

   (e)The documents provided do not amount to a right to permanent residence because:

   (i)They do not show the grant of a permanent entry permit under s.6(2) of the Migration Act.

   (ii)The 13 June 1968 recommendation that Mr Solien and his family are granted right of residence in Australia is a conditional recommendation as it is subject to meeting the normal conditions of migrant entry.

   (iii)The 16 June 1968 approval approved a conditional recommendation and was not the grant of an entry permit. It is argued the Minister did not have the power under s.6(2) of the Act as this power was given to an “officer” which by definition did not include the Minister.

   (iv)A condition of migrant entry was that the person holds a permanent entry permit under the Migration Act. If the person did not hold such a permit, an officer could prevent entry into Australia.

   (v)There are conditions of entry such as health requirements.

   (vi)The evidence before the Tribunal is not an entry permit in the form approved by the Minister as required by s.6(3) of the Migration Act.

   (vii)There is no evidence of an entry in a passport or other notation as required by s.6(4) of the Migration Act.

   (f)That Mr Solien renounced his right to permanent residence in Australia on 13 November 1975 does not advance this matter as the fact that Mr Solien thought he had a right to permanent residence does not mean he held it as a matter of law.

3. The Minister argues Ms Norris (Snr) did not have a right of residence because this turns on the exercise of the power in the Migration Act 1958 as it was at Independence Day to be granted a permanent entry permit.

The Migration Act 1958 -1973

1. The Minister relies on there being no evidence that can be located by either the Minister or the Ms Norris of an entry permit as contemplated by s.6(2) of the Migration Act 1958 – 1973 (“Migration Act”) as it was at the time Mr Solien and his family made the application and at the time the Minister made the decision.

2. The Migration Act at that time addresses immigration and deportation and includes the regulation of immigration agents and the emigration of children. The Act as it was at that time does not have a long title and does not include objects.

3. It specifies that an immigrant who is not the holder of an entry permit that is in force becomes a prohibited immigrant.[15]

   [15] Migration Act 1958-1973 (Cth), s.6(1).

4. The Act allows an officer, in accordance with s.6 and at the request, or with the consent of, an immigrant, to grant the immigrant an entry permit.[16] An entry permit is to be in a form approved by the Minister and expressed to permit the person to enter into Australia or remain in Australia or both. 

   [16] Ibid, s.6(3).

5. An entry permit may be granted to an immigrant before entering Australia or after entering Australia.[17]

   [17] Ibid, s.6(5).

6. A visa or similar notation or a form of provisional authority to enter Australia issued to a person on behalf of the Commonwealth is not deemed to be an entry permit and does not entitle the person to enter Australia or be granted an entry permit.[18]

   [18] Ibid, s 11.

Can the Executive grant a right of permanent residence?

1. The Minister argues that neither the policy nor the Executive can override the operation of the Migration Act, and that the Minister did not have the power to grant an entry permit under this Act.

2. The grant of a right of permanent residence does not purport to be under the Migration Act, it is expressed to result from a resolution of Cabinet, and the recommendation to grant permanent residence was approved by the then Minister. Permanent residence is not defined in the Migration Act. This then raises the question of whether the executive had the power to grant a right of permanent residence.

3. In Ruddock v Vadarlis[19] (The Tampa case), in issue (among other things) was the ability of the executive to exclude people from Australia. 

   [19] [2001] FCA 1329.

4. Justice French found the executive power of the Commonwealth in s.61 of the Constitution authorised and supported the expulsion of the people aboard the MV Tampa. Justice French further found that this power can be fettered, modified, or regulated by laws of the Commonwealth,[20] but that it was not necessary to canvas the full content of executive powers. He stated:

   “Australia’s status as a sovereign nation is reflected in its power to determine who may come into its territory and who may not and who shall be admitted into the Australian community and who shall not.”[21]

   [20] Ibid, at [181].

   [21] Ibid, at [192].

5. Justice French also found that the executive power to exclude aliens was not abrogated by the Migration Act as it was at that time. Justice Beaumont agreed that the Commonwealth was acting within its executive power, and in addition found the remedy of habeas corpus sought by the applicants could not apply as the applicants had not established a common law right to enter Australia. Justice French has since written extra judicially on the existence and extent of executive powers.[22]

   [22] French, R (2018) “Executive Power in Australia – Nurtured and Bound in Anxiety” Vol 43(2) University of Western Australia Law Review 16.

6. The then Chief Justice dissented, finding that any prerogative or other non-statutory executive power was displaced by the Migration Act 1958. This was because the Migration Act at that time provided a comprehensive regime. This was shown by the words of the long title to the Act at that time, which was to regulate “the entry into, and presence in, Australia of aliens, and the departure or deportation from Australia of aliens”. The conclusion that the Act abrogated any prerogative of executive powers was more readily found given the nature and uncertainty of the prerogative or executive power.

7. The High Court refused special leave to appeal as the question of habeas corpus had become hypothetical. 

8. The Tribunal is bound by the majority in The Tampa Case, and finds that executive power lies in the executive under s.61 of the Constitution. There is debate about the nature and extent of these powers; whether they originate from a common law prerogative, from the spheres of power of the Commonwealth in s.51 of the Constitution, from a general authority of the Commonwealth as a necessary part of being a sovereign nation, or of the necessities of a modern national government.[23] 

   [23] Ibid, p 27 – 32.

9. This is a debate for higher authorities. For the present purposes, the Tribunal is content that the power to allow a person to enter Australia is within the scope of non-statutory executive power vested in the executive by s.61 of the Constitution as it is a necessary part of being a sovereign nation. 

10. If there is a source of power, the next question is whether this has been abrogated by the legislation.

11. The Migration Act, as it was at the time, did not define or refer to a right of permanent residence. It did not contain a long title or objects as with the modern legislation, and which were considered of significance by the Chief Justice in the Tampa Case. In particular, it does not address the unusual circumstances of a person who is an Australian citizen but does not have a right to enter Australia.

1. As the Migration Act, as it was at the time, regulates entering Australia as distinct from a grant of a right to permanent residence. The executive retained the power to grant this right, which was not abrogated by the Migration Act. Migration law has developed considerably since 1968 when this right was under consideration, and it is not suggested this would necessarily be the case now. 

2. The Tribunal finds that at the time Ms Norris (Snr) was granted the right of permanent residence in 1968, the executive had the power to grant this right.  

Is a right of permanent residence the same as an entry permit?

1. The provisions in the PNG Constitution state a person does not become a citizen of Papua New Guinea on Independence Day if he or she “has a right (whether revocable or not) to permanent residence in Australia.”[24]

   [24] PNG Constitution, s.65(4)(a).

2. The High Court in Minister for Immigration and Multicultural and Indigenous Affairs; ex parte Ame[25] (ex parte Ame), in considering the construction of the PNG Constitution looked to the Constitutional Planning Committee Final Report, and the intention that the majority would automatically become citizens of Papua New Guinea. This Report acknowledged that Papuans, while at the time citizens of Australia, did not have a right to enter Australia, and required an entry permit.[26] The expectation was that Papuans who had some other connection or another “real foreign citizenship” would not become citizens of Papua New Guinea. Australian citizenship, for residents of Papua, was not considered a “real foreign citizenship” as this did not of itself confer a right of permanent residence in Australia. 

   [25] [2005] HCA 36.

   [26] This was because s.17 of the Acts Interpretation Act 1901 excluded External Territories from the definition of Australia.

3. In Ame the Court considered the need for an application for permanent residence and the grant of such a right and that “to have a right of residence in Australia [Papuans] needed to apply for, and be granted, such a right.  Hence the reference to a [grant] of a right of residence”.[27] The Constitutional Planning Committee’s Final report says that persons who are Australian citizens only by virtue of their birth in Papua are regarded as having no real foreign citizenship provided that they have not been granted the right to reside in Australia.[28] This was in the context that dual citizenship was seen as incompatible with a strong citizenship law.[29] 

   [27] Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Ame [2005] HCA 36, at [12].

   [28] Ibid, at [11].

   [29] Ibid, at [10].

4. The High Court states this was, in practice, a right to re-enter Australia free of the constraints of s.6 of the Migration Act.[30] It also refers to the right of inhabitants of Papua to enter mainland Australia as being constrained by the Migration Act.[31] 

   [30] Ibid, at [22].

   [31] Ibid, at [22].

5. In ex parte Ame, unlike in this case, the applicant had not applied for nor been granted a right of permanent residence and the High Court did not consider circumstances where a person had applied for and been granted a right. The applicant argued that he remained a citizen of Australia after Independence Day because he held a right of permanent residence in Australia by virtue of his Australian citizenship, and in the absence of a specific grant.

6. In discussing right of permanent residence in Australia in s.65(4)(a) of the PNG Constitution, the High Court states:

   “This is not an abstract or theoretical question. It concerns the meaning of words in an instrument of nationhood and government, dealing with a practical issue affecting the membership of a new Independent State. When the framers of the Papua New Guinea Constitution referred to persons who had a right of permanent residence in Australia, part of the contextual background in which that reference was made was an Australian immigration law which, according to its terms, and as it was administered, denied people such as the applicant a right to permanent residence in the absence of a specific grant.”[32]

   [32] Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Ame [2005] HCA 36, at [21].

7. The PNG Constitution does not refer to a person holding a permanent entry permit, it refers to a person who has a right of permanent residence in Australia. As the drafting of the Constitution of Papua New Guinea occurred in the context of the Migration Act, the Tribunal considers the use of a different term to an entry permit was deliberate and intended to distinguish between a right of permanent residence and an entry permit. 

8. The High Court has clarified that a right of permanent residence requires an application for permanent residence and the grant of this permanent residence. While this can be evidenced by an entry permit, an entry permit could be issued on or after arrival in Australia.[33] As a result, the grant of an entry permit is separate from a grant of a right of permanent residence. This is also evident in s.11 of the then Migration Act which states a visa or other form of provisional authority to enter Australia is not an entry permit.

   [33] Migration Act, s.6(5).

9. The Minister also relies on Minister for Immigration and Multicultural Affairs v Walsh[34] (Walsh). This matter considered whether Ms Walsh, who was born in 1970 in Papua, was an Australian citizen by descent. Ms Walsh’s father was an Australia citizen and her mother was an indigenous Papuan. Ms Walsh did not herself apply for, nor was she granted, a right of permanent residence and relied on her father’s entitlement to permanent residence, alternatively arguing she was entitled to permanent residence in Australia because she was an Australia citizen. 

   [34] [2002] FCAFC 205.

10. It was reiterated by the Full Court that Ms Walsh became a PNG citizen on Independence Day unless she then had a right to permanent residence in mainland Australia.[35]  The Court held that the question was not whether Ms Walsh was an Australian citizen, but whether she would have been an immigrant had she sought to enter Australia.[36] The Court also held that at Independence Day, had Ms Walsh sought to enter she would have been an immigrant and could not have done so without obtaining the discretionary grant of an entry permit under the Migration Act.[37] 

    [35] Ibid, at [15].

    [36] Ibid, at [17].

    [37] Ibid, at [21].

11. The basis of the decision in Walsh was that it had to be established whether Ms Walsh had a right of permanent residence on Independence Day.[38] While the Court did consider an entry permit was necessary on the facts of that case, the circumstances of this case are different. In this case, an application was made for permanent residence, and the application was granted, subject to the usual conditions of migrant entry.  

    [38] Ibid, at [29].

12. In Charlie v Minister for Immigration and Citizenship (“Charlie”)[39], the circumstances were also that Mr Charlie had not applied for or been granted a right of permanent residence in Australia. Mr Charlie was born in Papua and in 1975 moved to Darnley Island, which is part of the State of Queensland. He claimed to be an Australian citizen because he was absorbed into the Darnley Island community and therefore into the Australian community, or that he was a person who had a right of permanent residence in Australia because, as a member of his family unit, he had the permission of Darnley Island Council to reside on Darnley Island. The facts of this case also do not consider the circumstances that apply to a person who has applied for, and been granted, a right of permanent residence in Australia. 

    [39] [2008] FCA 1025.

13. The Minister cites the revised citizenship guidelines as requiring a stamp in a passport with the endorsement ‘indefinite’ or a letter of authority. The Minister relies on the most recent Revised Citizenship Procedural Instructions (RCPI), which states:

    “Generally evidence of right of permanent residence in Australia at the time of PNG Independence would have taken the form of:

    ·     a permanent entry permit stamp in a passport or a Permit to enter Papua New Guinea booklet with ‘indefinite’ endorsed on the stamp;

    ·     a passenger card with an entry stamp with ‘indefinite’ endorsed on it or a file number which refers to the documents provided at the time the letter of authority was given - the first 2 digits of the number will usually indicate the year in which the letter of authority was granted and can be used to request the file from the NAA; or

    ·     a letter of authority signed by the Comptroller of Customs.”[40]

    [40] Revised Citizenship Procedural Instructions, Chapter 19, at [3.8].

14. The Tribunal does not have a permanent entry stamp, a passenger card or a document headed “letter of authority” before it.

15. However, the RCPI also goes on to state:

    “Applicants born in PNG can have difficulty providing documents to meet the usual standard of evidence required by the Department to support an application for Australian citizenship. A decision-maker may need to rely on information other than that provided by the applicant. 

    …

    Decision-makers should be alert to the possibility that departmental records may contain errors (for example, registration for citizenship by descent of a person born in Papua before PNG Independence Day) or be incomplete (for example, not reflect that a person ceased to be an Australian citizen under a provision of the 1948 Act). Records must be updated when/if further evidence becomes available.”

16. The list of documents that may establish a right of permanent residence, even as listed in the RCPI, is broader than an entry permit, with a letter of authority from the Comptroller of Customs also included. The RCPI acknowledges that “generally” the right of permanent residence will be evidenced by these types of documents, and that there may be difficulty in providing documents and in the accuracy of records. The RCPI does not exclude, nor would it be consistent with the legislation to exclude, other types of evidence. 

17. This can be contrasted with the Australian Citizenship Instructions at the time (as cited in Walsh), that restate the position at the time that Papuans of indigenous descent were required, as a matter of policy determined by Cabinet, to apply for the right of permanent residence in Australia. Government policy gave the Minister the discretion to grant the right of permanent residence to such person if they had been brought up in the European manner, had English as their principal language and were European in Outlook.[41]

    [41] Walsh at [22].

18. The Tribunal does not accept that an entry permit is required for a person to be granted a right of permanent residence. An entry permit or letter of authority is evidence that the right of permanent residence had been granted but is not itself the grant of a right of permanent residence. An entry permit follows the grant of a right of permanent residence when a person leaves Papua and entered Australia.

19. It has not been suggested Mr or Mrs Solien left Papua or sought to leave Papua. This is plain from the application for the grant of a right of permanent residence, which states that they have no plans to visit Australia. It is also contained in the memorandum accompanying the application.  

20. As Mr Solien and his family did not in fact come to Australia, they will not have an entry permit. Imposing a requirement that they have entered Australia, and therefore have an entry permit, imposes a requirement to exercise a right for it to exist. There is no requirement that to have a right, it must first be exercised. For example, a person may have a right to freedom of religion but not exercise that right by actively practicing a religion. If the person does not actively practice a religion, this does not mean the right does not exist. A person can be granted a right of permanent residence in Australia, but if it is not exercised, the right still exists. 

21. This construction is consistent with the memorandum from H G Irwin for the Secretary to the Comptroller of Customs on 4 July 1968, following the approval of the recommendation to grant permanent residence by the Hon Billy Snedden on 16 June 1968. The memorandum states Mr Solien and family may be accorded right of residence in Australia provided they meet the usual conditions of migrant entry. 

22. Mr Solien and his family members applied for and were granted the right to permanent residence in Australia. They had taken the additional steps contemplated by the PNG Constitution to obtain a right of permanent residence in Australia. Therefore, they did not become citizens of Papua New Guinea on Independence Day. This is further demonstrated by Mr Solien renouncing this right to citizenship and making the Declaration of Loyalty within the two months of Independence Day on 13 November 1976 to obtain citizenship of Papua New Guinea. It is acknowledged by the Department of Foreign Affairs and Trade Citizenship Advisory Committee shown by the memorandum dated 21 August 1996, listing Mr and Mrs Solien as acquiring Papua New Guinea citizenship on 13 November 1976.[42] It was also recognised by the Australian Department of Immigration and Ethnic Affairs which records Mr Solien as losing his Australian citizenship in the memorandum dated 4 February 1977.

    [42] G-Docs, T12, p 99 – 101.

Is the grant conditional?

1. It is submitted that if there is a right of permanent residence, it was a conditional right as it was expressed as being subject to meeting the usual conditions of migrant entry. As Mr Solien and Mrs Solien did not enter Australia before they renounced the right to permanent residence this was never tested.

2. Ms Norris (Snr) entered Australia on 26 June 2010.[43] As such she has met the usual conditions of migrant entry and even if the Tribunal were to find it was a conditional grant, the conditions have been met. 

   [43] Ibid, T13, p 104.

Did Mr Solien renounce the right on behalf of his children?

1. Mr Solien renounced his right of permanent residence, and a copy of this renunciation and making the Declaration of Loyalty to Papua New Guinea is before the Tribunal. His name was then included on a list of Papua New Guinea citizens. The Tribunal infers that this process was also followed by Mrs Solien, as her name also appears on this list.

2. The application for the grant of a right of permanent residence includes Joan of Arc Solien (now Joanofarc Norris (Snr)), Rodney James Solien, Nora Solien and Rau Peter Solien. 

3. The names of the children included in the grant of the right of permanent residence do not appear on the list of those who have Papua New Guinea citizenship, and no renunciation of this right has been provided.

4. In Kondolo and Minister for Immigration, Multicultural and Indigenous Affairs[44], Deputy President McCabe found that, in circumstances where the applicant had not yet been born at the time the right of permanent residence was granted or at the time her parents revoked that right, the renunciation by a parent of his or her right to permanent residence in Australia did not renounce the applicant’s citizenship in accordance with s.23 of the Australian Citizenship Act 1948. Deputy President McCabe stated:

   “The Tribunal should be cautious in cases such as this. Australian citizenship is a thing of extraordinary value. That is why so many people desire it. A person should only be taken to have been deprived of his or her citizenship where there is a clear legislative attempt to do so.”[45]

   [44] [2004] AATA 867.

   [45] Ibid, at [34].

5. Ms Norris (Snr) was named in the application for permanent residence and was granted a right of permanent residence. She was not included in the renunciation of the right. Therefore, the Tribunal finds the right of permanent residence granted to Ms Norris (Snr) has not been revoked.  

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

1. While the recommendations of the Constitution Planning Committee and the PNG Constitution rejected the notion of dual citizenship, it allowed a period for young people to decide their citizenship.

2. Section 64(2) of the PNG Constitution allowed a young person to elect, before the age of 19 years, to renounce their other citizenship and make the Declaration of Loyalty to Papua New Guinea. A person who has real foreign citizenship and does not renounce the other citizenship and make the Declaration of Loyalty ceases to be a citizen of Papua New Guinea.[46]

   [46] PNG Constitution, s.64(3).

3. The PNG Constitution allowed Ms Norris (Snr) to hold dual citizenship up to 19 years of age if she had not renounced her Australian citizenship nor made the Declaration of Loyalty. If she had done so, then she lost her citizenship of Papua New Guinea. There is nothing before the Tribunal to show Ms Norris (Snr) renounced her right to Australian citizenship or made the Declaration of Loyalty.

4. Even if Ms Norris (Snr) had lost her right to Australian citizenship by the actions of her parents, it can be reacquired under r.2 of the Papua New Guinea Independence (Australian Citizenship of Young Persons) Regulations 1980 which states:

   “A person who on Independence Day –

   (a)  was under 19 years of age;

   (b)  was not for the purposes of section 64 of the Constitution of the Independent State of Papua New Guinea a person who was never granted a right (whether revocable or not) to permanent residence in Australia; and

   (c)   ceased to be an Australian citizen

   shall be deemed to have re-acquired his Australian citizenship on that day.”

5. Despite the double negative in r.2(b), which means a grant of permanent residence in Australia is required, even if Ms Norris (Snr)’s parents renounced her right of permanent residence, Ms Norris (Snr) re-acquired her Australian citizenship on Independence Day.

6. Ms Norris (Snr) was 15 years old on Papua New Guinea Independence Day. As the Tribunal has found that she did not acquire citizenship of Papua New Guinea on Independence Day it is not necessary to rely on this regulation, however, even if her right of permanent residence was renounced, Ms Norris (Snr) retains her Australian citizenship. 

CONCLUSION

1. The circumstances of this matter are unusual and differ from other cases that have been before the Courts. In other cases, the applicant has relied on being an Australian citizen by virtue of their birth in what was then the Australian Territory of Papua. It has been found that people who were Australian citizens because of their birth in Papua generally became citizens of Papua New Guinea on Independence Day.

2. Ms Norris (Snr)’s circumstances differ from those cases as she applied for and was granted a right of permanent residence in Australia before Independence Day and has not renounced that right.  As a result, she remained a citizen of Australia after Papua New Guinea Independence Day.

3. The Australian Citizenship Act 2007 sets out when a person is eligible to become an Australian citizen, and s.16(2)(a) states a person born outside Australia on or after 26 January 1949 is eligible to become an Australian citizen if a parent of the person was an Australian citizen at the time of the birth.

4. As Ms Norris has a parent who is an Australian citizen, she meets s.16(2)(a) of the Australian Citizenship Act 2007. 

DECISION

1. 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.

I certify that the preceding seventy-eight (78) paragraphs are a true copy of the reasons for the decision herein of Senior Member K Millar.

.....................[Sgnd].........................

Associate

Dated:   17 May 2021

Date of hearing:

3 February 2021 & 12 February 2021

Representative for the Applicant:

Daniel Estrin

Estrin Saul Lawyers

Representative for the Respondent:

Bora Kaplan

Nine Wentworth Chambers