Songoro and Minister for Immigration and Multicultural and Indigenous Affairs

[2005] AATA 774

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2005] AATA 774

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No   A2004/308
  )                 A2004/344
  )                 A2004/345

GENERAL ADMINISTRATIVE DIVISION		)
Re		KATHY AUSA SONGORO DAWE SAM SONGORO SAM AUSA SONGORO

Applicants

And MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

Respondent

DECISION

Tribunal Mr J.W. Constance, Senior Member

Date4 August 2005

PlaceCanberra

Decision The decisions of the Minister for Immigration and Multicultural and Indigenous Affairs refusing to register the declaration of each Applicant made under section 23AA of the Australian Citizenship Act (Cth) 1948 is affirmed.

..............................................

CATCHWORDS

CITIZENSHIP – resumption of citizenship – three applications – whether section 23AA applies – Applicants born in Papua prior to Independence and were born Australian citizens – whether Applicants obtained Papua New Guinea citizenship in 1975 – whether Applicants are, or were, entitled to permanent residency or were naturalized Australian citizens – whether Applicants still Australian citizens – whether Applicants have done acts other than marriage to obtain Papua New Guinea citizenship – Tribunal confined to review of decision under section 23AA – requirements of section 23AA not satisfied by any of the Applicants – decisions affirmed.

Australian Citizenship Act 1948 (Cth) – s 23AA, 10, 5

Migration Act 1958 (Cth)

Nationality and Citizenship Act 1948-1966 (Cth

Papua New Guinea Independence (Australian Citizenship) Regulations (Cth) – reg 4

Minister for Immigration and Multicultural and Indigenous Affairs v Walsh (2002) 125 FCR 31

REASONS FOR DECISION

4 August 2005   Mr J.W. Constance, Senior Member       

1.      This decision relates to 3 separate applications, each of which raises the same issues.  Ms Kathy Songoro, Mr Sam Ausa Songoro and Ms Dawe Songoro are members of the same family.  Each of the Applicants seeks a review of a decision of the Minister to refuse to register a declaration under section 23AA of the Australian Citizenship Act (Cth) 1948.  Such registration would have caused the person making the declaration (being a person who had previously ceased to be an Australian citizen) to again become an Australian citizen.

2.      For the reasons set out, the decision in each case will be affirmed.

FACTS

3. There is no dispute as to the facts in this matter. The findings are based on the documents filed pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 (Cth) unless otherwise stated. I am satisfied as to these findings on the balance of probabilities.

4.      Ms Kathy Songoro was born in Papua on 17 September 1956 and is now aged 48 years.  Her parents were born in Papua.  At least 2 of her grandparents were born in Papua or an adjacent area.

5.      Mr Sam Songoro was born on 24 April 1939 and is aged 66 years.  He is a full brother of Ms Kathy Songoro and has the same grandparents.

6.      Ms Dawe Songoro was born on 12 August 1941 and is 63 years.  She is married to Mr Sam Songoro.  At least 2 of her grandparents were born in Papua New Guinea or an adjacent area.

7.      Each of the Applicants became an Australian citizen by birth as each was born in Australia.[1]  At the time of each birth Australia was defined to include the Territories that were not trust territories.[2]  Papua was not a trust territory.

[1] Section 10(1) of the Nationality and Citizenship Act 1948-1966 (Cth).

[2] Section 5 of the Nationality and Citizenship Act 1948-1966 (Cth).

8.      On 16 September 1975 Papua became part of the Independent State of Papua New Guinea.

9.      None of the Applicants has taken any action to renounce a right to Australian citizenship nor has any of them signed a declaration of loyalty to Papua New Guinea.  There is no evidence that any of the Applicants had a right of residence in, or right to enter, mainland Australia at any time.  Although they were Australian citizens they would have required an entry permit under the Migration Act 1958 (Cth)[3] to enter mainland Australia.

[3] See Minister for Immigration and Multicultural and Indigenous Affairs v Walsh (2002) 125 FCR 31 at 35.

10.     Apparently on the advice of Departmental officers, the Applicants each signed a “Declaration of desire to resume Australian citizenship under section 23A, 23AA, 23AB or 23B”.  This form of declaration is provided for by the Australian Citizenship Act 1948.  The only relevant section for the purposes of this application is section 23AA.

11.     The reason given for the refusal by the Minister to register the declaration in each case was that the Applicant had automatically acquired Papua New Guinea citizenship on Papua New Guinea becoming independent.  Had the declarations been registered the Applicants would have again become Australian citizens.[4]  It is the decision to refuse to register the declaration that is under review in this Tribunal in each case.

[4] Section 23AA Australian Citizenship Act 1948 (Cth).

THE STATUTORY FRAMEWORK

12. At the time of the birth of each Applicant, and until Papua New Guinea became independent, Papua was part of Australia for the purposes of the Act. During this period section 5 of the Act defined Australia to include “the Territories which are not trust territories”. Papua was not a trust territory.

13.     Section 10 of the Act provided, in part:

“(1) Subject to this section, a person born in Australia after the commencement of this Act shall be an Australian citizen.”

14.     At birth each Applicant became an Australian citizen and continued to hold that citizenship on 16 September 1975 (Independence Day).

15.     Section 65 of the Constitution of Papua New Guinea provides, in part:

“(1) A person born in the country before Independence Day who has two grand-parents who were born in the country or an adjacent area is a citizen.

…

(4) Subsections (1) and (2) do not apply to a person who:

(a) has a right (whether revocable or not) to permanent residence in Australia; or

(b) is a naturalized Australian citizen;

………………………………………………………………………………………………….

unless that person renounces his right to residence in Australia or his status as a citizen of Australia or of another country in accordance with subsection (5).”

16.     Regulation 4 of the Papua New Guinea Independence (Australian Citizenship) Regulations (Cth) provides:

“4. A person who –

(a) immediately before Independence Day, was an Australian citizen within the meaning of the Act; and

(b) on Independence Day becomes 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, ceases on that day to be an Australian citizen.”

17.     Section 23AA of the Act, pursuant to which the Applicants seek to resume their Australian citizenship, contains a number of provisions which must be met by an applicant before citizenship can be resumed under that section.  The requirements of paragraph (1)(a) are:

“(1)     Where:

(a)       a person:

(i)        has done a voluntary and formal act, other than marriage, by virtue of which the person acquired the nationality or citizenship of a country other than Australia; or

(ii)       has done any act or thing:

(A)      the sole or dominant purpose of which; and

(B)      the effect of which;

was or is to acquire the nationality or citizenship of a foreign country;

being an act or thing that resulted in the person ceasing to be an Australian citizen”.

It should be noted that sub-clauses (i) and (ii) are expressed to be in the alternative.

APPLICATION OF THE LAW TO THE FACTS

18.     All three of the Applicants automatically obtained Australian citizenship when they were born in Papua. 

19. In the case of each Applicant at least 2 grandparents were born in Papua, New Guinea or an adjacent area. There is no evidence to suggest that any of the Applicants was a naturalized Australian citizen or had a right to permanent residence in Australia. It is clear that Australian citizenship alone did not represent a right to permanent residence in “mainland Australia”. Although the Applicants were Australian citizens from birth at least until Independence Day, to enter mainland Australia they would have required a temporary or permanent entry permit provided under the Migration Act.

20.     Thus it would seem that by force of law each of the Applicants obtained Papua New Guinea citizenship on 16 September 1975.  Under Regulation 4 of the Papua New Guinea Independence (Australian Citizenship) Regulations (Cth) obtaining Papua New Guinean citizenship had the effect that the Applicants ceased to be Australian citizens at this time.

21. To satisfy the provisions of section 23AA of the Citizenship Act and thus become entitled to registration of the declaration and resumption of Australian citizenship an applicant must have done a voluntary or formal act (other than marriage) by which he or she acquired the nationality or citizenship of a country other than Australia.  The Applicants have argued that their decision to remain living in Papua New Guinea at the time of independence is such a voluntary and formal act.

22.     Even if the act of remaining in Papua at the time of independence can be described as a “voluntary” act, it cannot be properly characterised as a “formal” act. The Oxford English Dictionary Online gives as one of the definitions of “formal” :

“done or made with the forms recognized as ensuring validity; explicit and definite, as opposed to what is a matter of tacit understanding.”

The action of remaining in Papua was not an explicit and definite act by which Papua New Guinea citizenship was acquired.

23.     I am also not satisfied that the Applicants’ decisions to remain in Papua on Independence Day were acts “the sole or dominant purpose of which” was to acquire the citizenship of a foreign country, namely Papua New Guinea.  Each Applicant properly and honestly stated that he/she did not realise that Australian citizenship was lost in the manner provided for by the legislation.  

24.     It follows that as none of the Applicants come within the provisions of section 23AA of the Act, the decision in each case to refuse to register the declaration was the proper decision.  I wish to make it clear that my decision relates  solely to the applicability of section 23AA as the decisions under review only dealt with application under this section of the Act.

DECISION

25.     For the reasons set out the decisions of the Minister for Immigration and Multicultural and Indigenous Affairs refusing to register the declaration of each Applicant made under section 23AA of the Australian Citizenship Act (Cth) 1948 is affirmed.

I certify that the 25 preceding paragraphs are a true copy of the reasons for the decision herein of Mr J.W. Constance, Senior Member

Signed:         .....................................................................................
  Associate (Chelsey Bell)

Date/s of Hearing  1 July 2005
Date of Decision  4 August 2005
Representative for the Applicants             Mr K. Songoro
Solicitor for the Respondent  Clayton Utz