Solien and Department of Immigration and Citizenship

[2008] AATA 1000

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2008] AATA 1000

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No 2007/4436

GENERAL ADMINISTRATIVE DIVISION		)
Re		STEVEN 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 Steven Solien, who has previously held Australian citizenship, has made an application to become an Australian citizen again. On 25 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 1945[2] in Port Moresby in the then Territory of Papua.  At the time of his birth he was a British subject having been born before the enactment of the Nationality and Citizenship Act 1948 (later named as the Australian Citizenship Act 1948). However, by the combined effect of s 25(1) (a) and s 10(1) of that Act, he became an Australian citizen by virtue of his birth in Papua in 1947.[3]

[2] To protect the privacy of Mr Solien, in these reasons I do not mention his actual date of birth.

[3] Re Gaigo and Minister for Immigration andCitizenship [2008] AATA 590 at [3] (Hon Dr B H McPherson CBE, Deputy President).

EFFECT OF INDEPENDENCE

5.      The Constitution of the Independent State of Papua New Guinea, in s 65(1), provided that a person born in the country before Independence Day (16 September 1975) who had two grand-parents who were born in the country or a adjacent area gained automatic citizenship of the new State of Papua New Guinea. The material before me discloses (and I so find) that Mr Solien has four grand-parents who were born in the then Territory of Papua, namely George Solien; Tuema Maka; Baia Rakatani and Taugau Magani.

6.      Section 65(1) of the Constitution of the Independent State of Papua New Guinea, was, by s 65(4) of that Constitution, expressed not to apply to someone who had a right (whether revocable or not) to permanent residence in Australia or to a person who is a naturalized Australian citizen or is registered as an Australian citizen under s 11 of the Australian Citizenship Act 1948-1975 or a person who is a citizen of another country other than Australia.

7. I am satisfied that on Independence Day s 65(4) of the Constitution of the Independent State of Papua New Guinea had no application to Mr Solien.  There is no evidence that Mr Solien then had a right of permanent residence in Australia under the Migration Act 1958. He was not then a naturalized Australian citizen or a person who was registered as an Australian citizen under s 11 of the Australian Citizenship Act 1948-1975. He was also then not a citizen of another country other than Australia. It is for these reasons that I consider that the application of s 65(1) of the Constitution has not in his case been excluded by the operation of s 65(4) of the Constitution.

8.      I find that Mr Solien became a citizen of the Independent State of Papua New Guinea on Independence Day by the operation of s 65(1) of the Constitution of the Independent State of Papua New Guinea.  He satisfies the requirements for the operation of s 65(1) by being born in the Independent State of Papua New Guinea before Independence Day and by the fact that he has four grand-parents who were born in that country.

CESSATION OF AUSTRALIAN CITIZENSHIP

9.      While Mr Solien became a citizen of the Independent State of Papua New Guinea on Independence Day, on that day he also ceased to be an Australian citizen by operation of law. This cessation of Australian citizenship occurred by virtue of the operation of regulation 4 of the Papua New Guinea Independence (Australian Citizenship) Regulations 1975. This regulation applies to Mr Solien who immediately before Independence Day was an Australian citizen; and who on that day became a citizen of the Independent State of Papua New Guinea by virtue of the provisions of the Constitution of the Independent State of Papua New Guinea. The regulation provides that such a person ceases on Independence Day to be an Australian citizen. The validity of this regulation was upheld by the High Court of Australia in Re Minister for Immigration and Multicultural and Indigenous Affairs, ex Parte Ame.[4] In that case Kirby J also rejected a submission that the regulation was arbitrary as it operated only in relation to a person who had already acquired citizenship of the new Independent State and was not rendered Stateless.[5]

[4] (2005) 222 CLR 439.

[5] (2005) 222 CLR 439 at 485. See also Re Gaigo and Minister for Immigration and Citizenship [2008] AATA 590 at [13] (Hon Dr B H McPherson CBE, Deputy President).

RIGHT OF PERMANENT RESIDENCE

10.     Prior to Independence Day Mr Solien would have required a permanent or temporary entry permit under the Migration Act 1958 to enter the mainland of Australia.[6] I earlier mentioned that there is no evidence that Mr Solien had a right of permanent residence for the purposes of s 65(4) of the Constitution of the Independent State of Papua New Guinea.

[6] Minister for Immigration and Multicultural Affairs v Walsh (2002) 125 FCR 31 at 35-36, [15]-[21], cited in Re Minister for Immigration and Multicultural and Indigenous Affairs, ex Parte Ame (2005) 222 CLR 439 at 445.

11.     I should also mention that in Re Minister for Immigration and Multicultural and Indigenous Affairs, ex Parte Ame,[7] the High Court of Australia rejected a submission that as a matter of constitutional principle an Australian citizen had a right of permanent residence in Australia.  This has the consequence that on Independence Day when Mr Solien last held Australian citizenship, that citizenship did not give him the right to enter the Australian mainland.

[7] (2005) 222 CLR 439.

12.     I have considered the application of regulation 2 of the Papua New Guinea Independence (Australian Citizenship of Young Persons) Regulations 1980. That regulation only applies to a person who was under the age of 19 years on Independence Day. Mr Solien was over that age on Independence Day. However, that regulation only has application to a young person who on Independence Day had a right of permanent residence in Australia.  Mr Solien then, had no such right of permanent residence and accordingly regulation 2 has no application.

AUSTRALIAN CITIZENSHIP ACTS

13. On 23 February 2006 Mr Solien lodged a “Declaration of desire to resume Australian citizenship under sections 23A, 23AA, 23AB or 23B”. This declaration was lodged before the passage of the Australian Citizenship Act 2007. Mr Solien is concerned that his declaration was not considered under the Australian Citizenship Act 1948 (which in his submission is referred to as the old Act). However, I am satisfied that Mr Solien was not disadvantaged as his case did not come within the ambit of the old Act.

14. Mr Solien has relied upon s 23AA and s 23B of the Australian Citizenship Act 1948.

15. I am satisfied that s 23AA of the Australian Citizenship Act 1948 had no application to Mr Solien. This provision applied where an applicant had done a voluntary and formal act, other than marriage, by virtue of which he acquired the nationality or citizenship of a country other than Australia (s 23AA(1)(a)(i)) or done any act or thing to acquire the citizenship of another country (s 23AA(1)(a)(ii). There is no evidence before me that Mr Solien did any such acts or things that are referred to in s 23AA.

16. I am also satisfied that s 23B of the Australian Citizenship Act 1948 had no application to Mr Solien. This provision applied where a person by reason of s 23 of that Act had ceased to be an Australian citizen. This latter provision applied where a responsible parent of a child had ceased to be an Australian citizen under s 18 or s 19 of that Act. I am satisfied that neither s 18 (which refers to where an adult person (of the age of twenty-one years) had made a declaration renouncing his or her Australian citizenship) or s 19 (which refers to a loss of citizenship by service in the armed forces of an enemy country) have any application at all to a parent of Mr Solien.

17. The declaration made by Mr Solien also made reference to s 23A and s 23AB of the Australian Citizenship Act 1948. For the sake of completeness I should mention that I am satisfied that neither of those provisions had any application to Mr Solien.

18. Section 23A of the Australian Citizenship Act 1948 enabled a declaration for the resumption of citizenship to be made where citizenship had been lost under s 20 of that Act. This latter provision applied to naturalized and registered persons who have resided outside Australia (which included the then Territory of Papua) and New Guinea for a continuous period of seven years. This latter provision had no application to Mr Solien who, in any event, was neither a naturalized or registered person.

19. Section 23AB of the Australian Citizenship Act 1948 enabled a declaration for the resumption of citizenship to be made where a person had ceased to be an Australian citizenship under s 18. This latter provision applied where an adult person (of the age of twenty-one years) had made a declaration renouncing his or her Australian citizen. This latter provision could have no application to Mr Solien as there is no evidence that he has made such a declaration.

20.     Even though the abovementioned provisions of the Australian Citizenship Act 1948 are no longer in force, in my view they had no application to Mr Solien. This is why I am satisfied that Mr Solien has not been prejudiced by his declaration not having been considered under the Australian Citizenship Act 1948.

21.     The Australian Citizenship (Transitional and Consequential) Act 2007 provides, in Schedule 3, for declarations made under s 23AA and s 23B of the old Act to be taken to be an application under the Australian Citizenship Act 2007. In any event any application could now only be dealt with under the Australian Citizenship Act 2007 as the Australian Citizenship Act 1948 has been repealed: see Australian Citizenship (Transitional and Consequential) Act 2007, s 42.

22.     I consider that the delegate of the Minister was correct in declining the application of Mr Solien under s 29 of the Australian Citizenship Act 2007. Mr Solien does not qualify under s 29 as he did not cease to be an Australian citizen under the various provisions of the “old Act” which are referred to in s 29(3) of the Australian Citizenship Act 2007.

23.     Mr Solien also relies upon s 21(7) of the Australian Citizenship Act 2007. In my view his application cannot succeed under that provision as a parent of the applicant had to be born in “Australia” as defined by the Australian Citizenship Act 2007: see s 21(7)((b). In s 3 of the Australian Citizenship Act 2007, “Australia” is defined to include the external Territories. At the time of the commencement of the Australian Citizenship Act 2007, Papua had long ceased to be a Territory of Australia.

24.     I am satisfied that Mr Solien does not qualify for Australian citizenship under any other provision of the Australian Citizenship Act 2007.

CONCLUSION

25.     Mr Solien ceased to be an Australian citizen on Independence Day. He lost his “Australian citizenship by operation of law resulting from the effects of State succession”.[8] I am of the opinion that he does not qualify for Australian citizenship under the Australian Citizenship Act 2007.

[8] Cf., Gaigo and Minister for Immigration and Citizenship [2008] AATA 590 at [15] (Hon Dr B H McPherson CBE, Deputy President).

DECISION

26.     I affirm the decision under review.

I certify that the 26 preceding paragraphs are a true copy of the reasons for the decision herein of Dr P McDermott, RFD, Senior Member

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

Date/s of Hearing on the papers    17 September 2008
Date of Decision  6 November 2008