Solien and Department of Immigration and Citizenship - [2008] AATA 1001

Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2008] AATA 1001
ADMINISTRATIVE APPEALS TRIBUNAL )
) No 2007/4363

GENERAL ADMINISTRATIVE DIVISION )

Re WILLE SOLIEN

Applicant

And

DEPARTMENT OF IMMIGRATION AND CITIZENSHIP

Respondent

DECISION

Tribunal Dr P McDermott, RFD, Senior Member
Date6 November 2008
PlaceBrisbane

Decision The Tribunal affirms the decision under review.
..................[Sgd]...................
Senior Member

CATCHWORDS
IMMIGRATION AND CITIZENSHIP – Citizenship – Application to become an Australian citizen again – applicant citizen of Australia at birth – on independence in 1975 became citizen of Papua New Guinea and ceased to be an Australian citizen – decision under review affirmed.
Australian Citizenship Act 1948 ss 5,10,18,19,20,23AA, 23B, 23, 25
Constitution of the Independent State of Papua New Guinea s 65
Papua New Guinea Independence Act 1975 ss 4, 6
Papua New Guinea Independence (Australian Citizenship) Regulations 1975
Papua New Guinea Independence (Australian Citizenship of Young Persons) Regulations 1980
Migration Act 1958 (Cth)
Australian Citizenship Act 2007 (Cth) ss 21, 29
Australian Citizenship (Transitional and Consequential) Act 2007 s 42
Minister for Immigration and Multicultural Affairs and Indigenous Affairs v Walsh (2002) 125 FCR 31
Re Minister for Immigration and Multicultural Affairs, Ex Parte Ame (2005) 222 CLR 439
Re Gaigo and Minister for Immigration and Citizenship [2008] AATA 590
REASONS FOR DECISION

6 November 2008 Dr P McDermott, RFD, Senior Member

INTRODUCTION
1.      Mr Willie Solien, who has previously held Australian citizenship, has made an application to become an Australian citizen again. On 12 July 2007 Mr Solien was advised that his application was refused by a delegate of the Minister. Mr Solien now seeks a review of that decision by this Tribunal.
2.      The parties have consented to this application being determined without a hearing pursuant to s 34J of the Administrative Appeals Act 1975.
3. In considering this application I have been greatly assisted by the reasons for decision of a Deputy President of this Tribunal who has recently examined the relevant issues which arise in the case of a person in the position of Mr Solien, including the significance of ss 4 and 6 of the Papua New Guinea Independence Act 1975.[1]
[1] Re Gaigo and Minister for Immigration and Citizenship [2008] AATA 590 (Hon Dr B H McPherson CBE, Deputy President).
BACKGROUND
4.      Mr Solien was born in 1970[2] in Port Moresby in the then Territory of Papua. Mr Solien then became an Australian citizen by birth. This is because s 10(1) of the Australian Citizenship Act 1948 provided that a person born in Australia after the commencement of that Act became an Australian citizen by birth. The exceptions to s 10(1) have no application to Mr Solien.
[2] To protect the privacy of Mr Solien, in these reasons I do not mention his actual date of birth.
5. It is not in issue that when Mr Solien was born the Territory of Papua was then part of Australia. The submission on behalf of the Minister (which was made in respect of a…

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 Solien and Department of Immigration and Citizenship

Details

AGLC: Solien and Department of Immigration and Citizenship [2008] AATA 1001
Case: [2008] AATA 1001
Decision Date: 6 November 2008

CaseChat Overview and Summary

The applicant, Solien, sought to be recognised as an Australian citizen again, having been a citizen at birth but becoming a citizen of Papua New Guinea (PNG) upon PNG's independence in 1975, which led to the cessation of Solien's Australian citizenship. The matter was heard and determined by the Administrative Appeals Tribunal (AAT). The central issue before the AAT was whether Solien's Australian citizenship was extinguished by PNG's independence, and if not, whether Solien could be recognised as an Australian citizen again under the Australian Citizenship Act 2007.

The AAT examined the statutory provisions, including the Australian Citizenship Act 1948, the Constitution of the Independent State of Papua New Guinea, the Papua New Guinea Independence Act 1975, and the associated regulations. The tribunal considered the legislative intent behind the loss of Australian citizenship upon PNG's independence and the transitional provisions in the Australian Citizenship Act 2007. It also reviewed the relevant case law, including Minister for Immigration and Multicultural Affairs v Walsh and Re Minister for Immigration and Multicultural Affairs, Ex Parte Ame.

After a comprehensive analysis of the statutes and case law, the AAT concluded that Solien's Australian citizenship was indeed extinguished upon PNG's independence in 1975. The tribunal found that the legislative framework and the intent behind it did not provide a mechanism for Solien to be recognised as an Australian citizen again. Therefore, the AAT affirmed the decision under review, upholding the Minister's decision to deny Solien's application for Australian citizenship.

The final orders of the tribunal were to affirm the decision under review, meaning Solien's application for Australian citizenship was denied.

Orders

Orders of the court

The Tribunal affirms the decision under review.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.