Re Martin and Minister for Immigration and Citizenship - [2011] AATA 732

Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2011] AATA 732
ADMINISTRATIVE APPEALS TRIBUNAL )
) No 2011/2275

GENERAL ADMINISTRATIVE DIVISION )

Re RAYMOND 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. The applicant, Mr Raymond 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 review of that decision by this Tribunal. The Tribunal has jurisdiction to review the decision of the delegate pursuant to 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 (Cth).[1]
PROCEDURAL MATTERS
[1] Re Gaigo and Minister for Immigration and Citizenship [2008] AATA 590.
3.      At the commencement of the hearing the representative of Mr Martin informed the 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 1962[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…

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.

Continue reading Re Martin and Minister for Immigration and Citizenship

Details

AGLC: Re Martin and Minister for Immigration and Citizenship [2011] AATA 732
Case: [2011] AATA 732
Decision Date: 20 October 2011

CaseChat Overview and Summary

The case of Re Martin and Minister for Immigration and Citizenship involved the applicant, Martin, who sought to resume his Australian citizenship, which he had lost under the Papua New Guinea Independence (Australian Citizenship) Regulations 1975. Martin's citizenship was initially acquired under the Australian Citizenship Act 1948 but was deemed to have been lost upon Papua New Guinea's independence. The Administrative Appeals Tribunal (AAT) was tasked with reviewing a decision by the Minister for Immigration and Citizenship to deny Martin's application to resume his Australian citizenship. The AAT was required to determine whether the Minister's decision was lawful and reasonable, and whether the provisions for resumption of citizenship were satisfied.

The central legal issues revolved around whether Martin's citizenship could be resumed under the Australian Citizenship Act 2007 and whether the statutory provisions for resumption of citizenship were met. Martin argued that his citizenship had not been lost under the Australian Citizenship Act 2007 or the Australian Citizenship Act 1948. The AAT had to assess if Martin met the eligibility criteria for resumption of citizenship as outlined in the legislation and regulations. Specifically, it was necessary to determine whether Martin's parent was born in Australia at the time of his birth, which was a requirement for resumption of citizenship under the relevant statutory provisions.

The Tribunal held that Martin's application to resume his Australian citizenship was not successful. The AAT concluded that Martin's citizenship had indeed been lost under the Papua New Guinea Independence (Australian Citizenship) Regulations 1975, and that the provisions for resumption of citizenship were not satisfied. Notably, neither of Martin's parents was born in Australia at the time of his birth, which was a critical eligibility criterion under the relevant legislation. Consequently, the Tribunal affirmed the Minister's decision, finding it to be lawful and reasonable. The Tribunal's decision was based on a detailed examination of the legislative framework and the specific circumstances of Martin's case.

Orders

Orders of the court

The Tribunal affirms the decision under review.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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GENERAL ADMINISTRATIVE DIVISION		)
Re		RAYMOND MARTIN