Re Gaigo and Minister for Immigration and Citizenship

[2008] AATA 590

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2008] AATA 590

ADMINISTRATIVE APPEALS TRIBUNAL      )
  )           No 2007/5072

GENERAL ADMINISTRATIVE DIVISION		)
Re		VALACIE GAIGO

Applicant

And MINISTER FOR IMMIGRATION AND CITIZENSHIP

Respondent

DECISION

Tribunal Honourable Dr B H McPherson CBE Deputy President

Date9 July 2008

PlaceBrisbane

Decision The decision under review is affirmed.

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

Deputy President

CATCHWORDS

IMMIGRATION AND CITIZENSHIP – Citizenship – Application to become an Australian citizen again – applicant has experienced three different forms of national status – applicant born in Papua in 1948 pre independence – applicant born a British subject – in 1949 applicant became citizen of Australia – on independence in 1975 Australia ceased sovereignty with Papua – applicant consequently became citizen of Papua New Guinea – applicant ceases to be Australian citizen by operation of law – decision under review affirmed.

Australian Citizenship Act 1948 (Cth) ss 10(1) 25(1)

Constitution of the Independent State of Papua New Guinea s 65

Papua New GuineaIndependence Act 1975 (Cth) s 4, 6

Papua New Guinea Independence (Australian Citizenship) Regulations 1975

Migration Act 1958 (Cth)

Australian Citizenship Act 2007 (Cth)

Australian Citizenship (Transitional and Consequential) Act 2007 (Cth)

Re Minister, Ex Parte Ame (2005) 222 CLR 439; [2005] HCA

REASONS FOR DECISION

9 July 2008 Honourable Dr B H McPherson CBE Deputy President   

1.      This is an application to review a decision dated 28 August 2007 of the Minister’s Delegate refusing an application by Valacie Victoria Gaigo to become an Australian citizen again.  At least, that is the way in which the Department has approached her application, which is in substance however perhaps more in the nature of a complaint that her Australian citizenship as it existed before Papua New Guinea became independent on 16 September 1975 should still attach to her.  In whatever way it is formulated, I am satisfied that the application cannot succeed.

2. Mrs Gaigo was born on Samurai Island in Papua in 1948. Papua was then a Territory of the Commonwealth of Australia, having been placed under its administration by s 5 of the Papua Act 1905 (Cth). The earlier history of Papua is traced in The Administration of the Territory of Papua New Guinea v Daera Guba[1].  From 1 July 1949, Papua was administered by Australia in a union with New Guinea, which was a Trust Territory established under the United Nations Charter[2].  Having been born in Papua in 1948, Mrs Gaigo was a British subject.  That state of affairs continued until 26 January 1949, when the Nationality and Citizenship Act 1948 commenced.  Later amendments altered the title of that Act to the Australian Citizenship Act 1948 (Cth) (“the old Act”).

[1] (1973) 130 CLR 353, at 380-382 and 413-421

[2] See Fishwick v Cleland (1960) 106 CLR 186; [1961] ALR 147.

3. By s 10(1) of the old Act, a person born in Australia after the commencement of that Act was an Australian citizen by birth. Under s 1, Australia was defined to include Territories that were not trust territories, and so included Papua. Mrs Gaigo was, however, born in Papua before the commencement of the old Act, and so did not satisfy s 10(1) of that Act. However, s 25(1) provided that a person who was a British subject immediately before commencement of the old Act became an Australian citizen if –

“(a)     he was born in Australia and would have been an Australian citizen if section 10 has been in force at the time of his birth;”

Mrs Gaigo was therefore by the combined effect of s 25(1) (a) and s 10(1) an Australian citizen by virtue of her birth in Papua in 1948.

4.      On 16 September 1975 the Independent State of Papua New Guinea came into existence.  It followed extensive consideration by a committee of the House of Assembly of Papua New Guinea, which reported its conclusions, together with a draft constitution, on 13 August 1974.  The Report of the committee, which gave careful attention to the matter of citizenship of the new State, is discussed and analysed by the High Court of Australia in their Honours’ reasons for judgment in Re Minister for Immigration and Multicultural and Indigenous Affairs; ex Parte Ame[3].

[3] (2005) 222 CLR 439; [2005] HCA 36.

5. The independence of Papua New Guinea was brought about by two constitutional instruments. One was the Constitution of the Independent State of Papua New Guinea (“the Constitution”), which in s 65(1) provided that a person born in the country before Independence Day, who had two grandparents who were born in the country, was a citizen of the new State of Papua New Guinea. Independence Day was fixed at 16 September 1975. By s 65(4) of the Constitution, s 65(1)(a) was expressed not to apply to someone who had a right of permanent residence in Australia.

6.      Mrs Gaigo was born in the country of Papua New Guinea before Independence Day.  She had no right of permanent residence in Australia, which was a matter that fell to be determined under the Migration Act 1958. It followed that the application of s 65(1) was not excluded by s 65(4) of the Constitution, and that Mrs Gaigo became a citizen of the Independent State of Papua New Guinea on 16 September 1975. She thus became a citizen by operation of law in the form of s 65 of the Constitution. Shortly stated, the effect of s 65 was on 16 September 1975 to convert all persons born in Papua or New Guinea into citizens of Papua New Guinea if they had at least two grandparents who were born there and if they had no right of permanent residence in Australia.

7.      The second of the two constitutional instruments referred to above was the Papua New Guinea Independence Act 1975 (Cth), which was an Act passed by the Australian Parliament. It will be referred to here as the 1975 Act. Section 4 of the 1975 Act provided that at the expiration of the day (which was 15 September 1975) preceding Independence Day, Australia ceased to have any sovereignty or sovereign rights, or rights of administration, in respect of Papua New Guinea. In several decisions given after Great Britain recognised American independence in 1784, it was held that a declaration relinquishing sovereignty and government over another territory constituted a surrender of authority over the inhabitants of that territory; and that recognition that a State is to be free and independent amounted to declaring that the people composing that State should no longer be considered as subjects of the sovereign that made that declaration[4]. Hence, the effect of s 4 of the 1975 Act was that, upon independence, the people of Papua New Guinea ceased to be citizens of Australia[5].   

[4] See Doe d. Thomas v Acklam (1824) 2 B&C 779, 796, per Abbott CJ. 

[5] See Re Seaka-Kabua Mahuru and Department of Immigration and Citizenship [2008] AATA 464

8. That may be described as the common law principle in its application to a provision in the form of s 4 of the 1975 Act. But the matter was not left simply to the common law. In addition, legislation was also promulgated in Australia that was designed to confirm the change in nationality flowing from the 1975 Act. It took the form of the Papua New Guinea Independence (Australian Citizenship) Regulations 1975, which were enacted in reliance on s 6 of the 1975 Act. The substance and effect of reg 4 of those Regulations was that a person who –

(a)immediately before Independence Day was an Australian citizen; and

(b)on that day became a citizen of Papua New Guinea by virtue of the provisions of the Constitution of Papua New Guinea thereupon ceased on that day to be an Australian citizen.

9.      In Re Minister for Immigration and Multicultural and Indigenous Affairs, ex Parte Ame[6], the validity of reg 4 of the 1975 Regulations was challenged, but upheld, by the High Court in that case.  Their Honours said[7]:

“The capacity to acquire and exercise sovereignty, sovereign rights and rights of administration in respect of external territories necessarily includes the capacity to make provision for the bringing to an end of those rights…”

[6] (2005) 222 CLR 439; [2005] HCA.

[7] ((2005) 222 CLR 439 at 457.

10. Australia was in law authorised and empowered by Reg 4 and indirectly by s 65 of the Papua New Guinea Constitution to terminate the Australian citizenship of persons born in Papua New Guinea before 16 September 1975 if they had two grandparents born there, provided they had no right to permanent residence in Australia. Mrs Gaigo was not one of the latter class of persons because she had no such right under the Migration Act 1958.

11.     During her lifetime Mrs Gaigo has experienced three different forms of national status.  First, she was born a British subject; then she became an Australian citizen in 1950; finally, she became a citizen of Papua New Guinea in 1975.  On no occasion was she, or any of the other people affected, consulted individually about these changes.  They were nevertheless valid and effective.  They were the result of decisions taken by those who controlled the political destinies of people like Mrs Gaigo or who represented them in the Papua New Guinea House of Assembly.  She and those people lost their Australian citizenship through operation of law[8].

[8] See Re Songoro and Minister for Immigration and Multicultural and Indigenous Affairs [2005] AATA 774, at [20].

12.     The High Court in Re Minister for Immigration and Multicultural and Indigenous Affairs, ex Parte Ame[9], considered a submission that Australian citizenship “carried with it a right to permanent residence in Australia … as a matter of constitutional principle.” If that were so in Mrs Gaigo’s case, she might fulfil the requirement in s 65(4) of the Papua New Guinea Constitution that took her case out of s 65(1) making her a citizen of that State. However, the High Court rejected that submission. Their Honours concluded that the policy of the Papua New Guinea Constitution was “antagonistic” to dual citizenship, and they said[10]:

“In recognition of that policy of the new Independent State, Australia by reg 4 withdrew the applicant’s citizenship.  That withdrawal was not arbitrary.  It was consistent with the maintenance of proper relations with the new independent State, and with the change that occurred in Australia’s relationship with the inhabitants of that State.”

[9] (2005) 222 CLR 439 at 454-455.

[10] (2005) 222 CLR 439 at 435.

It would be a strange form of independence that insisted on retaining citizenship over the people to whom it was granted.

13.     The statement in that passage from the judgement that the withdrawal of Australian citizenship was “not arbitrary” is relevant to another submission advanced by Mrs Gaigo before the Tribunal.  It is that the deprivation of her Australian citizenship was contrary to Article 15 of the Universal Declaration of Human Rights.  It declares that “everyone has the right to nationality” and that no one shall be “arbitrarily” deprived of it.  In Re Minister for Immigration and Multicultural and Indigenous Affairs; ex Parte Ame[11], Kirby J also rejected a submission that the Australian and Papua New Guinea legislation in 1975 had “arbitrarily” deprived a Papuan of his former Australian citizenship.  Speaking there of the appellant and persons like him and Mrs Gaigo here, his Honour said that they “did not lose a right to nationality….  [Their] nationality status simply changed by reason of the change of the sovereignty of the place of … [their] birth … and the place of birth of … [their] forbears.”

[11] (2005) 222 CLR 439 at 483-485.

14. Mrs Gaigo has a distinguished lineage, which includes a great grandfather who was an officer in the British Army, and another ancestor who appears to have been a Samoan missionary. But she herself was born in the “country” of Papua New Guinea in 1948, even if at that time it was not an Independent State but an external Territory of Australia. She thus acquired Australian citizenship under the old Act of 1949; but s 65 of the Constitution converted it into citizenship of Papua New Guinea in 1975. And in Australia, Regulation 4(b) declared that a person who became a citizen of Papua New Guinea on Independence Day ceased to be an Australian citizen. Her case is indistinguishable from that of Re Songoro and Minister for Immigration and Multicultural and Indigenous Affairs[12], in which in similar circumstances Senior Member Constance decided that a person acquiring citizenship of Papua New Guinea in 1975 ceased to be an Australian citizen by operation of law.

[12] [2005] AATA 774

15.     Mrs Gaigo feels aggrieved that her application dated 26 October 2006 to resume Australian citizenship was not dealt with under the old Act of 1948, but was apparently deferred until the Australian Citizenship Act 2007 (“the new Act”) came into force.  However, she is mistaken about the legislation and its effect insofar as it bears on her matter.  The old Act was repealed by a Part of Schedule 1 to the Australian Citizenship (Transitional and Consequential) Act 2007 (“the Transitional Act”).  It came into force on the same day as the operative provisions of the new Act commenced, which was 1 July 2007.  The evident purpose of the Transitional Act, and in particular Part 1 of the Schedule 3 of it, was and is to ensure that rights to Australian citizenship that availed under the old Act were and are preserved in favour of someone who was an Australian citizen immediately before 1 July 2007.  By that date Mrs Gaigo had long since (on 16 September 1975) ceased to be an Australian citizen.  She has not been disadvantaged by the coming into force of the new Act or by any delay in failing to process her application under the old Act.  There is nothing  in either the old Act or the new Act that would have enabled her to resume her pre-1975 status as an Australian citizen.  Neither of those Acts addresses the case of someone who, like her, has lost her Australian citizenship by operation of law resulting from the effects of State succession like that of Papua New Guinea in place of Australia as the state of her nationality.

16.     Mrs Gaigo travelled all the way from Papua, where she lives, in order to appear in person before the Tribunal at this hearing in Brisbane.  I thank her for her courtesy in doing so, but regret that her application to review the decision given on 28 August 2007 cannot succeed.  She ceased to be an Australian citizen on 16 September 1975, and she does not qualify under the statutory provisions of either the Act of 1949 or of 2007 that enable a person to become a citizen again.

17.     The decision of the Minister’s Delegate given on 28 August 2007 is accordingly affirmed.

I certify that the 17 preceding paragraphs are a true copy of the reasons for the decision herein of Honourable Dr B H McPherson CBE Deputy President

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

Date of Hearing  27 May 2008
Date of Decision  9 July 2008
For the Applicant  Applicant was self-represented 
Solicitor for the Respondent     Tigiilagi Eteuati, Clayton Utz Lawyers