Vagi and Minister for Immigration, Citizenship and Multicultural Affairs (Citizenship) - [2022] AATA 3739

Vagi and Minister for Immigration, Citizenship and Multicultural Affairs (Citizenship) [2022] AATA 3739 (7 November 2022)
Division:GENERAL DIVISION
File Number:2021/7670
Re:Walter Michael Vagi
APPLICANT

AndMinister for Immigration, Citizenship and Multicultural Affairs
RESPONDENT

Decision
Tribunal:Deputy President J Sosso
Date:7 November 2022
Place:Brisbane

The Tribunal sets aside the decision under review and remits the matter to the Respondent with a Direction that the Respondent is satisfied that the Applicant was born outside of Australia for the purposes of s 16(2) of the Australian Citizenship Act 2007 (Cth).
.................[SGD].................
Deputy President J Sosso
Catchwords
CITIZENSHIP — Australian citizenship — Applicant seeks citizenship by descent — refusal of application — birthplace of Applicant in dispute — authenticity of documents — decision under review set aside and remitted
Legislation
Australian Citizenship Act 2007 (Cth)
Australian Citizenship Act 1948 (Cth)
British Settlements Act 1887 (Imp)
Civil Registration Act 1963 (PNG)
Migration Act 1958 (Cth)
Nationality and Citizenship Act 1948 (Cth)
New Guinea Act 1920 (Cth)
Papua Act 1905 (Cth)
Papua-New Guinea Provisional Administration Act 1945 (Cth)
Cases
Fabila and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] AATA 1368
Strachan v Commonwealth (1906) 4 CLR 455
Tamanabae and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] AATA 840
REASONS FOR DECISION
Deputy President J Sosso
7 November 2022
INTRODUCTION

Mr Walter Michael Vagi (the Applicant) seeks review of a decision of a Delegate of the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (the Respondent) made on 15 September 2021 to refuse to grant the Applicant citizenship by descent pursuant to s 17(1) of the Australian Citizenship Act 2007 (Cth) (the Act) – Exhibit 1 T31 pp. 161 – 176.
On 21 November 2018, the Applicant lodged an application for Australian citizenship by descent – Exhibit 1 T4 pp. 17 – 55.
The Applicant claimed that he was born in Lae, Morobe Province, New Guinea, in May 1958 – Exhibit 1 T4 pp. 17 – 18.
It was also claimed that the Applicant’s mother was Sheila Monica Vagi (nee Danby) who was born in March 1925 in Port Moresby and was an Australian citizen (transitional) at the time of the Applicant’s birth – Exhibit 1 T4 p. 22. Likewise, it was claimed that the Applicant’s father, Fred Alu Vagi, who was born in September 1927 in Hula, Central District, Papua New Guinea was an Australian citizen (transitional) at the time of his birth – Exhibit 1 T4 pp. 23 – 24.
The Applicant provided details of the following siblings – Exhibit 1 T4 pp. 25 – 30:
(a)Marie Vagi born October 1948 in Port Moresby;
(b)Justin Vagi born October 1950 in Port Moresby;
(c)Theresa Vagi born March 1956 in Lae;
(d)John Vagi born February 1961 in Port Moresby;
(e)Frederick Vagi born February 1963 in Port Moresby; and
(f)Camel Vagi born July 1965 in Port Moresby.
In support of his application, the Applicant supplied PNG Certificates of Birth Entry under the Civil Registration Act 1963 (PNG) for:
(a)Walter Michael Vagi, date of birth (DOB) May 1958, place of birth Lae, issued 6 November 2018 – Exhibit 1 T4 p. 38;
(b)Sheila Monica Danby, DOB March 1925, place of birth Port Moresby, National Capital District, issued 6 November 2018 – Exhibit 1 T4 p. 39; and
(c)Fred Alu Vagi, DOB September 1927, place of birth Hula Village, Central Province, issued 4 February 2019 – Exhibit 1 T4 p. 40.
These entries are referred to as “Blue” PNG Certificates of Birth Entry.
The Applicant also provided documents titled “Register of Births” for himself and his parents. Each of these documents contained the Number of Entry in the Register. These documents contained consistent information with that contained in the Blue PNG Certificates of Birth Entry. In particular, both sets of documents contain the same “Number of Entry in Register” – Exhibit 1 T4 pp. 41 – 43.
In addition, the Applicant provided copies of the following documents – Exhibit 1 T4 pp. 44 – 46, 55:
(a)the Applicant’s PNG Passport issued on 1 November 2018;
(b)National Police Clearance Certificate issued on 29 November 2018, which lists the Applicant’s place of birth as Lae;
(c)the Applicant’s primary school certificate issued by the Director of Education in 1970; and
(d)the Certificate of Marriage for Alu Vagi and Sheila Danby in September 1952.
On 29 April 2020, the Department of Home Affairs sought further information from the Applicant – Exhibit 1 T14 pp. 77 – 78:
“To enable the processing of your application to continue, you are required to provide the documents as listed below.
This documentation is required as evidence that you are able to satisfy the requirements of the Australian Citizenship Act 2007.
Documents required
•Early Childhood Document/s
A review of your application finds that as evidence of your identity, parentage, date and place of birth, you have provided a 2018 – issued PNG Birth Certificate. The document is blue-coloured and was issued when you were 60 years old.
A birth certificate – issued in Australia or overseas – is evidence only that the child’s birth has been registered. By itself, it is not reliable evidence of parentage as these documents, especially when issued much later in life, are issued on the basis of self-reported information that is not always independently verified by the registration authority.
Furthermore, PNG ‘blue’ Certificates of Birth Entries were only issued pre-2017. A statement issued by the Papua New Guinea National Registrar General in February 2017 advised that the ‘old blue birth certificates’ are obsolete and cannot be used anymore, and that applicants lodging their blue birth certificates for any services are required to re-register and obtain new birth certificates with NID cards for adults…
…
Please provide further document/s as evidence of your full name, place of birth and names of parents that was issued as early in your life as possible. These can include, but are not limited to, a birth extract, a PNG baby book, vaccination records, baptism certificate, passports issued to you or on which you are listed as a dependent, hospital records from your birth, school records that name yourself and one or both of your parents, marriage certificate/s (as they may list the parents of the bride and groom), siblings’ birth certificates (as they may list you as another child of your parents’ relationship), family photos or similar documents.
•Evidence of your mother’s name, place of birth and date of birth
You have similarly provided a blue-coloured birth certificate as evidence of your mother’s details that was issued in 2019, 93 years after her birth.
Please provide further evidence that was issued as early in her life as possible of her name at birth, place of birth, date of birth and parentage.”
In response to the above request, on 27 May 2020, the following documents were provided to the Department – Exhibit 1 T15 pp. 80 – 84:
(a)a photo of the Applicant with his two brothers, Frederick and John;
(b)a photo of the Applicant, his siblings and his mother;
(c)a photo of the Applicant’s mother taken later in her life; and
(d)a “Letter of Identification” dated 21 May 2008 issued by Father Paul Guy of the Roman Catholic Archdiocese of Port Moresby, recording that Joseph A C Danby and Ara Kamona were the parents of Shiela [sic] Monica Danby;
A Departmental officer emailed again on 3 June 2020 acknowledging receipt of the above documents and requesting the completion of a Form 80 – Exhibit 1 T16 p. 85.
In a reply email of 9 June 2020, the Department was informed that the Applicant was finalising the details for the Form 80, and also provided a copy of the Birth Extract of “Freddy” Vagi born in February 1963 at Koki Maternity Hospital, Port Moresby. The parents were registered as Alu Vagi born in “Hula C.D. Papua” and his mother as Sheila Danby born in “Bootless C.D. Papua”. The Registrar signed the Extract on 10 March 1963 – Exhibit 1 T16 pp. 87 – 88.
In an email of 1 July 2020, further documentation was provided to the Department – Exhibit 1 T17 pp. 88 – 114:
(a)Certificate of Birth Entry for Walter Michael Vagi, recording his place of birth to be Namanwell European Hospital, Lae, Morobe Province, issued by the Deputy Registrar-General on 10 March 2011;
(b)Register of Marriage of Walter Michael Vagi and Laura Agnes Steven on 26 February 1994. The Applicant’s place of birth is listed as “Lae M.P.”;
(c)Form 80 dated 19 June 2020;
(d)Agricultural Lease for 23.47 ha of land in the National Capital District in the names of the Applicant and his siblings;
(e)Beneficiaries and Distribution document for the estate of Joseph Arthur Danby, with Sheila Danby recorded as receiving half of the estate of her father; and
(f)Lease documentation relating to the grant of 100 acres of land at Bootless Inlet, Papua, to Joseph Danby.
On 16 October 2020, the Department sought further information from the Applicant – Exhibit 1 T18 pp. 115 – 116.
First, the Department sought a Statutory Declaration explaining the Applicant’s birth in Lae:
“Please provide, via signed Statutory Declaration, an explanation of why most of your siblings born prior to you and after you were born in Port Moresby, while you and your sister Theresa were born in Lae. You may wish to provide early childhood document issued to your sister Theresa as evidence that her place of birth was also Lae”
Second, supporting documentation was requested to confirm that the Applicant was born in Lae:
“You provided Birth Certificates issued in 2011 and 2018 as evidence that your place of birth was ‘Namanwell European Hospital, Lae, Morobe Province’. These documents issued late in your life may be produced by a registry on the basis of self-reported information that has not been verified by the issuing body. Please provide further information about how you are sure you were born in ‘Namanwell European Hospital, Lae, Morobe Province’. Please provide third-party evidence to support your statements.”
On 13 November 2020, the Department was provided with the requested information – Exhibit 1 T18 pp. 117 – 129.
First, the Department was provided with a Statutory Declaration deposed by the Applicant on 12 November 2020 – Exhibit 1 T18 p. 119:
“I was born on…May 1958.
I was born in Lae, Morobe Province.
Because my father Fred Alu Vagi advised me that he was working there at the time.
Also as per a copy of the Family Record Book, hand written by my mother Sheila Monica Danby clearly states that my birth place is in Lae, Morobe Province.”
The Department was also provided with a booklet titled:
“VAGI FAMILY
Record Book
OUR FAMILY
in the
CATHOLIC CHURCH”
The Booklet appears to have been produced by the Roman Catholic Church and each page contains information to be filled out dealing with each child of the family. The booklet provides for the name of the child, their birth date, place of birth, parents, baptism date, Minister, godfather and godmother, date of first communion, confirmation date, as well as marriage details – Exhibit 1 T18 pp. 121 – 126.
On the page headed “Our 3rd Child” is an entry for Theresa born in March 1956 in Lae – Exhibit 1 T18 p. 122. The next page, headed “Our 4th Child”, lists Walter Michael as being born in May 1958 at Lae – Exhibit 1 T18 p. 123.
In comparison, the entry for the sixth child, Freddy Richard, lists his date of birth as February 1963 and place of birth as Koki Hospital. The same place of birth is listed for Carmelann born in July 1965 and Liliane born in January 1968 – Exhibit 1 T18 pp. 124 – 125.
Amongst the other documents provided to the Department was a Certificate of Birth Entry for Theresa Vagi which was issued on 5 July 2004. The Birth Entry records Theresa Vagi as having been born in March 1956 at the Angau Memorial Hospital, Morobe Province – Exhibit 1 T18 p. 128. In addition, the Department was provided with a copy of the Driver’s Licence of Theresa Mili with an expiry date of 18 March 2012. The Driver’s Licence records Ms Mili’s birth as March 1956. Ms Mili is Theresa Vagi, with Mili being her married name.
The Department was also provided with a Register of Births document, which was requested on 28 September 2001, which records the Applicant’s place of birth as Namanwell European Hospital, Lae, Morobe Province. The document records his mother’s place of birth as Gereka, Central Province, and his father’s place as Irupara, Central Province – Exhibit 1 T18 p. 127.
In the email of 13 November 2020 sent to the Department, the following information was provided – Exhibit 1 T18 p. 117:
“Mr Walter Michael Vagi and his sister Mrs Theresa Mili (nee Vagi) were born in Lae, Morobe Province. At the time of their births, their father Mr Alu Vagi was employed by the Commonwealth Department of Works. He was a Carpenter by Trade and was sent to Lae to assist with new Building Projects for the Commonwealth Government of Australia. At that time, he was accompanied by the applicant's mother Sheila and his two older siblings namely Mary and Justin.
Whilst the applicant's parents were living and working in Lae, the applicant Mr Walter Michael Vagi and his sister Theresa Mili (nee Vagi) were born there. After the completion of the project in Lae, the applicant's father Mr Alu Vagi was transferred back to Port Moresby which was his initial place of employment. Since then, all his other siblings were born in Port Moresby.”
[Bold in original]
Also on 13 November 2020, in a separate email, the Department was provided with “Information of Birth” documents prepared by the Applicant and his wife on the birth of their two children – Exhibit 1 T19 p. 130 – 133.
In the “Information of Birth” document for Velma Annette Vagi, who was born in December 1985, her father is listed as Walter Michael Vagi, aged 27, and born in Lae – Exhibit 1 T19 p. 132. Likewise, in the “Information of Birth” document for Johannes Patrick Vagi born in November 1989, his father is listed as Walter Michael Vagi aged 31 and born in Lae – Exhibit 1 T19 p. 133.
On 17 May 2021, the Department wrote to the Applicant with an invitation to comment on adverse information – Exhibit 1 T26 pp. 144 – 145. The following “adverse information” was outlined – Exhibit 1 T26 p. 144:
“In considering your citizenship application, specifically in relation to subsection 16(2) mentioned above, amongst the other documents provided, I will be taking into account the following document you provided to the Department on 13 November 2020:
• Papua New Guinea Certificate of Birth Entry No. ‘Rg.58059’ for your sister Theresa VAGI, issued 5 July 2004. This document records her place of birth as ‘Angau Memorial Hospital, Morobe Province’.
You provided this document to support the claim that you and your older sister Theresa MILI (nee VAGI) were both born in Lae. According to Departmental files and supported by a PNG Birth Certificate supplied by Theresa VAGI with the same registration number ‘Rg.58059’, Theresa VAGI was born on 11 March 1956 in St Therese Hospital, Badili. The document bears a stamp from the PNG Deputy Registrar General and contains a signature of the Registration Officer at the time.
The information you provided with your application about her place of birth contradicts the information on Departmental record. Therefore, I would like to give you an opportunity to provide a response to this adverse information.”
The importance of Ms Mili being born at St Therese Hospital, Badili, is that Badili is a suburb of Port Moresby.
In response to this letter, the Department was provided with a Statutory Declaration of Ms Mili deposed on 9 June 2021 – Exhibit 1 T27 p. 149:
“The information on my birth certificate on record with the Australian Department of Home Affairs is incorrect.
I was born in Lae, Morobe Province on… March 1956.
The birth certificate which my brother Walter Michael Vagi provided for his application has the correct information about my birth place…”
A number of documents were attached to the Statutory Declaration including her current Papua New Guinea Passport which records her date of birth as being March 1956 and her place of birth as Lae – Exhibit 1 T27 p. 148.
The Department was provided with further information on 19 July 2021, including – Exhibit 1 T30 pp. 154 – 156:
(a)Certificate of Birth Entry issued on 4 May 2018 for Theresa Vagi recording her place of birth as Angau Memorial Hospital, Lae, Morobe; and
(b)Baptism Certificate for “Teresa Damby” [sic] with father being recorded as “Frederick Damby” [sic] and mother as “Sheila Damby” [sic] with a birth date of March 1956 and a baptism date of June 1956. The record is located in the Baptismal Books of the Roman Catholic Diocese of Lae.
On 15 September 2021, the Applicant’s application for Australian citizenship was refused – Exhibit 1 T31 pp. 159 – 176.
In the extensive reasons given for the refusal, the Delegate first referred to a blue coloured PNG Certificate of Birth Entry (No. of Entry: RG.50182TNG) issued on 6 November 2018. It was pointed out that the PNG National Registrar General issued a statement in February 2017 advising the old blue birth certificates were obsolete and could not be used. Persons were advised to re-register and obtain new birth certificates and with NID (National ID) cards to be issued for adults. The Delegate then made the following finding – Exhibit 1 T31 p. 168:
“The above information available from the PNG authorities strongly indicates that your 2018 bluecoloured PNG Certificate of Birth Entry was not genuinely-issued. You have provided no information about how you obtained the document to allay concerns that this document may have been fraudulently created. I therefore find that this document is fraudulent. As I am not satisfied the document is genuine, I am not satisfied the information therein is genuine. I am not satisfied that this document supports your claim that you were born in Lae.”
Concerns were also raised about a PNG Register of Births stamped as a true copy on 12 February 2019 – Exhibit 1 T4 p. 41. The document states that the Number of Entry in the Register is RG.50182 TNG and the date of registration is 15 May 1958. Reference was also made to another document also titled Register of Births (RG. 50182) and signed by the Registration Officer on 28 September 2001 – Exhibit 1 T18 p. 127. It was pointed out that the documents have conflicting registration dates – 15 May 1958 and 28 September 2001 – Exhibit 1 T31 p. 168.
The Delegate went on to make the following observations – Exhibit 1 T31 pp. 168 – 169:
“While Document 1 [Exhibit 1 T4 p. 41] shows that the registration of your birth 5 days after you were born was not validated by the Registration Officer (no signature), Document 2 [Exhibit 1 T18 p. 127] indicates that a registration date in2001 was confirmed by the signature of the Registration Officer. It is also noted that the section starting with ‘No. of Entry in Register’ on the left hand-side of Document 2 that is usually completed by the Registry Office is left blank in this case. While I acknowledge that all of the provided birth documents show the same Entry No. RG. 50182, record your place of birth as ‘Namanwell European Hospital, Lae, Morobe Province’, and contain stamps bearing the logos of PNG Registry authorities, the two ‘Register of Births’ documents have a different format, do not contain an issuance date and provide information about the registration dates that are 43 years apart. These inconsistencies raise concerns about the authenticity of both documents. In the context of the fraudulent document discussed above, I give neither of these documents any weight as evidence to demonstrate that you were born in Lae.”

The Delegate then referred to a third PNG Certificate of Birth Entry which had been provided to the Department. This Certificate was issued on 10 March 2011 by the Deputy Registrar-General and, again, refers to the Registration Number as being No. 50182TNG – Exhibit 1 T17 p. 90.
In rejecting this document, the Delegate provide the following reasons – Exhibit 1 T31 p. 169:
“While this document was purportedly issued on 10 March 2011… if genuine, it was still issued well into your adulthood and on the basis of self-declared information and therefore I consider that it does not constitute strong evidence of your place of birth… I have found the 2018 document is fraudulent; based on the inconsistencies and lack of verifying evidence in the 2011 document, I do not accept that the 2011 document can be relied upon either. As such, I give the document no weight as evidence to particularly confirm that your place of birth as Lae.”
The Delegate found that the Applicant’s Passport, which records his place of birth as Lae, would have been issued based on information contained in the 2011 PNG Certificate of Birth Entry, and, accordingly, little or no weight could be placed on the Passport as evidencing his place of birth – Exhibit 1 T31 p. 169.
The Primary School Certificate was also found to be of no assistance as it recorded that the Applicant attended school in Badili, Port Moresby, and did not serve to support a place of birth in Lae – Exhibit 1 T31 p. 169.
Likewise, the Applicant’s Register of Marriage was given little weight, as it was registered 12 years after the marriage and there was no indication that the Applicant provided any evidence to support his assertion that he was born in Lae – Exhibit 1 T31 pp. 169 – 170.
Attention was then given to the Vagi Family Record Book. Reference was made to the page headed “Our 4th Child”, and it was noted that the date of birth was altered. It was also noted that the Applicant declared that it was his mother who kept the records. The Delegate noted that the Record Book does not contain any official stamp. Reference was also made to the Baptism Certificate which was not printed on Church letterhead and does not confirm the Applicant’s place of birth. The Delegate concluded that “the reliability of the information they contain is questionable” – Exhibit 1 T31 p. 170.
The Delegate also was of the view that there was insufficient evidence to corroborate the Applicant’s claims about his parents’ move to Lae, and some examples were given of the purported insufficiency – Exhibit 1 T31 pp. 171 – 172:
“• historical records detailing the Commonwealth Public Works projects your father worked on in Lae at the time,
• confirmation of your father’s employment and transfer to Lae between November 1956 and August 1958 when you claim you and your sister were born; with evidence of the family moving back to Port Moresby at the completion of the projects,
• evidence that a hospital called the ‘Namanwell European Hospital’ existed in 1958 and which community or locality it serviced, and
• school records for your older siblings who were aged eight or older at the time of your birth, the address where the family lived, the names of other families living in the area at the time, or
• any other evidence to demonstrate that your mother was residing in and present in Lae at the time of your birth.”
The Delegate then turned her attention to the two Information of Birth documents relating to the Applicant’s two children. She observed that the information contained therein, particularly that pertaining to the Applicant’ place of birth, was “self-declared information whose authenticity has not been verified and therefore cannot be relied upon” – Exhibit 1 T31 p. 172.
Appropriately, the Delegate referred to submissions made by the Applicant’s representative, Ms Morea, who pointed out that birth registration was not compulsory in the years after Papua New Guinea’s independence, and only became compulsory in 2016. Consequently, many people were only issued with birth certificates later in their lives – Exhibit 1 T31 p. 172. The Delegate then made these observations – Exhibit 1 T31 pp. 172 – 173:
“I accept that in PNG, birth certificates for people born in your era were often issued later in a person’s life, however I also note in the absence of reliable evidence issued at or around the time of birth, such documentation alone is unlikely to meet evidentiary thresholds. As acknowledged by Mrs MOREA in her statement, birth registration in PNG only became more common in recent times with the National ID (NID) birth certificate project that commenced in 2014 with new birth certificates and National ID Cards being issued from 2015. I note that since then, facial image and fingerprint biometrics are captured for adults at the time of registration. You have not explained why a fraudulent blue birth certificate dated 6 November 2018 was provided with this application, when an NID document should have been available.”
The Delegate then turned to information held by the Department concerning Ms Theresa Mili. It was noted that Ms Mili had lodged an application with the Department on the basis that she was born in Badili, Port Moresby. It was claimed that the Department held the following documents – Exhibit 1 T31 p. 173:
(a)an undated Register of Births document (Reg. 58059) indicating that she was born in March 1956 at St Therese Hospital, Badili. It was noted that the document bore the same registration officer’s signature as the one on the Applicant’s Register of Births document of 28 September 2001;
(b)a PNG Certificate of Birth Entry (Reg. 58059) issued on 18 May 2009 recording that Ms Theresa Vagi was born in March 1956 at St Therese Hospital, Badili, National Capital District; and
(c)a PNG Police Clearance Certificate issued on 28 May 2009 recording that Ms Theresa Marie Margaret Mili was born in St Therese, Koki, Port Moresby.
Next, the Delegate turned to information provided to the Department on 19 July 2021, including a NID issued PNG Certificate of Birth, an Identification Letter from the Mary Help of Christians Parish Priest dated 15 July 2021 and a Baptism Certificate bearing the name “Damby Theresa” issued on 20 May 2021.
The Delegate observed that the Church documents did not confirm that Ms Mili’s place of birth was Lae – Exhibit 1 T31 p. 174. After that finding, the Delegate then made the following observations – Exhibit 1 T31 p. 174:
“The reliability of information provided on 2004 and 2018-issued birth certificates for Theresa VAGI is in question given the registration numbers differ, the documents were issued late in Theresa MILI née VAGI’s life that could be on the basis of self-declared information, particularly when the Department’s records show that at least three other documents had been issued in the past for Mrs MILI that recorded her place of birth as Port Moresby. These official birth certificates do not only cast serious doubts on the reliability of the information they contain, but they also raise questions about the motivation to obtain two sets of birth certificates with the same registration number showing both Lae and Port Moresby as a place of birth.”
Subsequently, the Delegate dealt with Ms Mili’s Statutory Declaration, and found that Ms Mili had supplied incorrect information to the Department on at least one occasion, and found that the information provided by Ms Mili to the Department was not genuine. Overall, the Delegate was not satisfied that the evidence provided demonstrated that Ms Mili was born in Lae – Exhibit 1 T31 p. 174.
In addition, with reference to early-issued documentation that was provided to the Department, the Delegate observed that it suggested the Vagi family have maintained a home and links with Port Moresby from at least 1913, with most members of the family having been born in this locale – Exhibit 1 T31 p 174.
The Delegate concluded by accepting that the Applicant had, in his interactions with the Department since 2011, consistently claimed that he was born in Lae. However, the Delegate then made the following findings – Exhibit 1 T31 p. 175:
“…I find your 2018 Certificate of Birth Entry is fraudulent, your Registration of Births documents show contradictory information and cannot be relied upon, and the documents and statements provided to support that your sister was also born in Lae are in serious doubt. Fraudulent documents add to concerns that your claim to have been born in Lae may have been fabricated to support an outcome. I consider there is a clear incentive for you to claim to be born in New Guinea, however the limited evidence provided does not support this claim. I consider it is a reasonable expectation that you would provide documentary evidence that supports your claims.
Against such a background and in the absence of a satisfactory explanation as to why documents containing contradictory information and a fraudulent Certificate of Birth Entry were provided, or strong evidence to outweigh the concern, the evidentiary threshold for me to be satisfied that you were born in Lae, New Guinea is not met. I am therefore not satisfied that you were born outside of Australia.”
Having regard to this finding, the Delegate did not assess the following legislative requirements:
(a)s 16(2)(a);
(b)s 16(2)(b)(i);
(c)s 16(2)(b)(ii); and
(d)s 16(2)(c) of the Act.
It will also be noted that the focus of the Delegate’s deliberations was whether the Applicant was born outside of Australia, and, in particular, whether he was born in Lae and, therefore, in the Trust Territory of New Guinea.
The Delegate touched, in passing, on the further issue of whether the Applicant has a parent (or parents) who was an Australian citizen at the time of his birth, as required by s 16(2)(a) of the Act. However, the Delegate did not meaningfully engage with this issue in her reasons.
THE LAW
Pursuant to s 16(1) of the Act, a person may make an application to become an Australian citizen.
Importantly, s 16(2)(a) provides that a person born outside of Australia on or after 26 January 1949 is eligible to become an Australian citizen if a parent of that person was an Australian citizen at the time of the person’s birth.
The legal and constitutional developments prior to the independence of Papua New Guinea in 1975 are set out in Fabila and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] AATA 1368 (Fabila). The following discussion is based on paragraphs 7 to 17 of Fabila.
In 1883, the Colony of Queensland annexed the south-eastern quarter of the island of New Guinea. This unilateral annexation was not initially recognised by the Imperial Government, but in 1884, the Imperial Government declared a protectorate over this area, then known as British New Guinea. In 1888, British New Guinea was placed under the administration of the Colony of Queensland by the British Settlements Act 1887 (Imp).
Subsequent to Federation, Letters Patent were issued for the purposes of s 122 of the Commonwealth Constitution. Section 122 provides as follows:
“The Parliament may make laws for the government of any territory surrendered by any State to and accepted by the Commonwealth, or of any territory placed by the Queen under the authority of and accepted by the Commonwealth, or otherwise acquired by the Commonwealth, and may allow the representation of such territory in either House of the Parliament to the extent and on the terms which it thinks fit.”
It will be seen that s 122 prescribes two methods by which the Commonwealth of Australia may acquire territory. The second method is by a Territory being placed by the Monarch under the authority of the Commonwealth, and subsequently being accepted by the Commonwealth. This is what happened with both Papua and Norfolk Island – Strachan v Commonwealth (1906) 4 CLR 455.
On 16 March 1906, pursuant to the Papua Act 1905 (Cth), Papua became an Australian Territory. It was administered under this Act until the Japanese invasion of the island of New Guinea in 1942 and, after the Second World War, civil administration was restored under the Papua-New Guinea Provisional Administration Act 1945 (Cth).
The north-eastern quarter of the island of New Guinea, together with outlying islands including New Britain, New Ireland, Manus, Buka and Bougainville were initially German colonies. In September 1914, the German colonies came under the control of Australia, and remained so until 1920, when the League of Nations conferred upon Australia a Mandate for its governance. The Commonwealth Parliament enacted the New Guinea Act 1920 (Cth) which formally accepted the Mandate. This legislation commenced on 9 May 1921.
Accordingly, the Territories of Papua and New Guinea were administered under different underpinning constitutional regimes.
Australian citizenship was first given statutory form by means of the Nationality and Citizenship Act 1948 (Cth) (the 1948 Act). Prior to this statute, persons residing in Australia were classified as either British subjects permanently residing in Australia, British subjects temporarily in Australia, and those who were not British subjects and “aliens”.
The 1948 Act (subsequently renamed in 1973 as the Australian Citizenship Act 1948 (Cth)) initially ensured that Australian citizens remained British subjects. The primacy of Australian citizenship was only recognised in 1969, and it was not until 1987 that Australians became simply citizens of Australia. The concept of being a British subject was finally abandoned.
Section 5 of the 1948 Act defined Australia to include Norfolk Island and the Territory of Papua. Persons born in Papua after 26 January 1949 acquired Australian citizenship by birth and those born in Papua prior to 26 January 1949 automatically became Australian citizens from that date.
Despite this, the conferral of Australian citizenship on persons born in Papua was subject to restrictions contained in the Migration Act 1958 (Cth). Under the Migration Act 1958 (Cth), a Papuan required an entry permit to enter or reside in any of the Australian States or internal Territories. A Papuan did not have an automatic right of entry or residence in mainland Australia.
In contradistinction, the Trust Territory of New Guinea was not defined to be part of Australia. A person born in the Trust Territory of New Guinea, as the Applicant claims he was, was not granted automatic Australian citizenship.
Ironically, however, a person born in the Trust Territory of New Guinea (which includes Lae) in 1958 is entitled to claim Australian citizenship by descent if one or both of their parents was an Australian citizen at the time of their birth. In the Applicant’s case, if a decision-maker was satisfied that he was born in Lae in 1958 and, at the time of his birth, his mother was born in Papua and she was, therefore, an Australian citizen, he is entitled to claim Australian citizenship by descent.
As the Respondent points out, the Citizenship Procedural Instructions (CPI) explain that the parent of such a person is not required to be an Australian citizen at the time of the citizenship application (if such a person were still alive) but only need be an Australian citizen at the time of the Applicant’s birth – Exhibit 2 RSFIC p. 10 para 19. It is also the case that if the parent of such a person loses or renounces their Australian citizenship at any time after the birth of their child, that loss or renunciation does not retrospectively deprive their child of the right to claim citizenship by descent.
THE HEARING
A Hearing was convened in Brisbane on 5 October 2022. There were a number of serious technical difficulties in connecting the various parties, representatives and witnesses remotely by means of Microsoft Teams. In particular, international connection proved difficult and problematic. As a result of these technical issues, the Hearing was expedited and was conducted, unfortunately, in less than optimal circumstances.
The Applicant appeared and gave evidence.
The Applicant was represented by Ms Glenyse Morea and the Respondent by Ms Cody Allen.
Apart from the Applicant, oral evidence was taken from his sister, Ms Carmel Ann Vagi, and his daughter, Ms Velma Annette Matane.
At the conclusion of the Hearing, Directions were made allowing the parties to provide written closing submissions by 12 October 2022 and any written closing submissions in reply by 19 October 2022.
On 13 October 2022, the Applicant provided to the Tribunal and the Respondent written closing submissions, as well as further evidence in the form of copies of two driver’s licences; one with an expiry date of 5 October 2000 and the other with an expiry date of 6 October 2022.
The Tribunal’s Direction was limited to the parties providing closing submissions, and not further evidence which could be tested by the other party or by the Tribunal. In these circumstances, the Tribunal has not taken these documents into account in reaching its Determination.
CONSIDERATION
Was the Applicant born outside of Australia?
The first issue to be determined is whether the evidence, on the balance of probabilities, supports the proposition that the Applicant was born in Lae in 1958, and was, therefore, born outside of Australia, and in the Trust Territory of New Guinea.
In support of this proposition, the Tribunal has been presented with a variety of documents, as well as the testimony of the Applicant and his sister, Ms Carmel Vagi.
The Tribunal has been presented with copies of two Blue PNG Certificates of Birth Entry.
The first of those documents was issued on 10 March 2011, and contains a reference number of 50182TNG. It is signed by a person who purports to be the PNG Deputy Registrar-General, and bears the stamp of the PNG Registrar General. The Applicant is recorded therein as having been born in May 1958 at Namanwell European Hospital, Lae, Morobe Province – Exhibit 1 T17 p. 90.
The second document is dated 6 November 2018, bears the stamp of the PNG Deputy Registrar-General and records the same date of birth and place of birth as the 10 March 2011 Blue PNG Certificate of Birth Entry – Exhibit 1 T4 p. 38.
The Delegate found that the second document was not genuinely issued. She referred to the statement of the PNG National Registrar-General of February 2017 advising that Blue Birth Certificates were obsolete and could not be used any further. In short, almost two years after PNG stopped issuing Blue Birth Certificates, a purported Blue Birth Certificate was issued – Exhibit 1 T31 p. 168. Accordingly, the Delegate found that the document was fraudulently created.
This was a very important finding of the Delegate, and a reading of her detailed decision highlights that her finding of fraud then coloured the remainder of her findings about the genuineness of the documentation provided by the Applicant and his sister, Theresa.
It will be noted that, in her letter of 17 May 2021, when providing an invitation to comment on adverse information, the Delegate did not refer to the 6 November 2018 PNG Certificate of Birth Entry – Exhibit 1 T26 pp. 144 – 145. Insofar as this document played a central role in the decision to refuse the Applicant’s citizenship application, it would have been prudent for the Delegate to have provided an opportunity to the Applicant to respond. Leaving aside issues of procedural fairness, the decision reached by the Delegate may have been different if she had been presented with the Applicant’s version of events.
Before proceeding further, there is no direct evidence that the document dated 6 November 2018 is tainted by fraud. When making a finding of fraud, with all of the serious ramifications that flow therefrom, there should either be direct evidence of mala fides or secondary evidence that would lead a reasonable person to make such a finding. One factor to be taken into account when reaching a conclusion of fraud, in the absence of direct evidence, is the credibility of the person who is alleged to have engaged in fraudulent conduct, and, in this instance, potentially misleading behaviour.

The Applicant consented to the Department being provided with his PNG criminal history – Exhibit 1 T9 p. 67. The Department was subsequently provided with a PNG National Police Clearance Certificate which stated that a search of the records maintained by the Royal Papua New Guinea Constabulary disclosed “nothing to the detriment of the person named” – Exhibit 1 T11 p. 71.
Consequently, the Tribunal has not been presented with any evidence that the Applicant has a criminal history, or has ever engaged in conduct that could be labelled fraudulent or misleading.
On the contrary, when the Applicant gave testimony, the Tribunal found him to be a witness of credit. It is necessary, then, to look at the circumstances that resulted in the issuing of the 2018 document. This is dealt with below.
The material presented to the Tribunal also indicates that in the period 1983 – 2020, the Applicant had been in continuous gainful employment, except for three periods, the first between 2000 until 2001, the second between February 2014 until October 2015, and the third in the period after March 2020 – Exhibit 1 T17 pp. 96, 109.
The Tribunal notes the following submission of the Applicant – Exhibit 2 A3 p. 4:
“…I have always tried to be a moral law-abiding citizen. I have never been arrested nor have I ever broken the law by being corrupt or deceitful nor have I ever been an advocate of bribery in order to get ahead in a country where bribery runs rife and is sadly the norm.”
The Tribunal has no reason to doubt the truthfulness of this statement.
The situation in Papua New Guinea, in the years following independence in 1975, so far as birth, death and marriage registration, appears to have been less than ideal, with the registration of key life information being voluntary with consequent incomplete civil registration records.
Ms Morea, in an email to the Delegate of 13 November 2020, made the following observations – Exhibit 1 T19 p. 131:
“The above information has been provided to support that on all documents Mr Walter Michael Vagi has identified his place of birth as Lae, Morobe Province from an early age regardless of his birth certificate being issued at a later date. His place of birth has always been stated as ‘LAE’ from the family book, too early years for his Birth registration and the registration of birth of his children and many other legal documents. It has not just been seen as self reported information that has been provided to the Authorities as stated. Birth registration was never compulsory for people in the early years after Papua New Guinea gained Independence, it only became compulsory in 2016 when everyone was required by law to register through the National Identity project established by the Papua New Guinea Government. Therefore, many individuals were issued with Birth Certificates later in their lives.”
The Tribunal accepts that birth registration in Papua New Guinea was voluntary until recently, and the fact that a Papua New Guinean citizen did not obtain a birth certificate until later in their life is not a matter that can or should result in any adverse inferences by a decision-maker when assessing an application for citizenship.
The Respondent relies on the following observations of Member Maguire in Tamanabae and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] AATA 840 at [27] (Tamanabae):
“…The Applicant has produced an outdated birth certificate (which is no longer regarded as valid by the government of PNG) which shows her place of birth as Kundiawa, however if the PNG government will not rely on the validity of such a document there is no good reason why this Tribunal should.”
The Tribunal was presented with a letter, dated 6 October 2021, sent to the Applicant by Mr Dickson Kiragi, the PNG Registrar-General. Mr Kiragi stated as follows – Exhibit 1 T2 p. 13:
“Pursuant to your request dated 23rd September, 2021 on the above, I am satisfied and do verify that the Certified Copy issued on the 10th of November, 2020 is the legitimate certified copy of your birth register issued pursuant to Section 20 (1) of the Civil Registration Act.
I also further verify that your birth was registered by the former Registrar General Betty Billy on 28th September, 2001, whose signature is affixed in the Register of Birth. Noted that many Papua New Guineans had delayed birth registration resulting from inaccessible and out of reach registration services.
I wish to further advise that, individuals whose births were registered before 2015 under the old system with entries in the Register of Births are also deemed official registers in accordance with Section 5 (2) of the Civil Registration Act.
In accordance with Section 22, the attached certified copy of the Register of Birth RG 50, 182 is the true evidence of your birth details, parental details and origin.”
Mr Kiragi’s reference to the Certified Copy of 10 November 2020 is a document that was admitted into evidence – Exhibit 1 T18 p. 127. The Applicant’s mother is registered as “Shiela [sic] Dandy”, and his father as “Fred Alu Vagi”. The Applicant’s date of birth is registered as May 1958, and the place of birth is registered as “Namanwell European Hospital, Lae, Morobe Province”. The date of registration is stated to be 28 September 2001, and the Registration Officer is the former Registrar-General, Betty Billy.
Further, as Mr Kiragi points out, that pursuant to s 5(2) of the Civil Registration Act 1963 (PNG), births registered prior to 2015 continue to be deemed to be validly registered, and “evidence of the facts entered in it”. Section 5 provides as follows:
“(1)In accordance with and for the purposes of this Act, the Registrar shall keep and maintain–
(a) registers of births; and
(b) registers of deaths; and
(c) registers of marriages; and
(d) registers of adopted children; and
(e) such other registers as are prescribed; and
(f) indexes to the entries in the registers.
(2) A register kept under this Act and any other register in the statutory custody of the Registrar is for all purposes evidence of the facts entered in it, and that those facts and the events or persons entered in the register are duly registered.”
In short, to state that a Blue PNG Birth Certificate cannot be relied upon, is to overstate the case and ignore the operation of s 5(2).
Next, the Tribunal has been presented with a PNG Certificate of Birth Entry issued pursuant to the new PNG Civil and Identity Registration System. The Certificate was issued under the hand of the Deputy Registrar-General on 16 February 2022. The Certificate records the Applicant’s date of birth as May 1958 and his place of birth as Namanwell European Hospital, Lae, Morobe – Exhibit 2 A2 p. 2. Prima facie, this is an important document, and one which was not before the Delegate when she made her decision.
In the Applicant’s Closing Submissions (ACS), the following account was given of what information the Applicant provided to the PNG Registrar-General’s Office when he applied for his NID Birth Certificate – ACS p. 2 para 4:
“The applicant lodged an application for the NID Birth Certificate on the 28 January 2022. At the time of lodgement, he was only requested to provide his name and date of birth so they could conduct a search within their archives to confirm his information to be given a NID Birth Certificate. He had no knowledge on the type of search that was conducted and the information that was sourced to issue his new NID Birth Certificate. The new NID Birth Certificate that was issued for the applicant on the 16 February 2022 is now recognised as the legal and official Birth Certificate for the applicant. Therefore, it now replaces the two old birth certificates that were questioned by the Department of Immigration and clearly signifies that there was no malicious act in obtaining the information on the place of birth for the Applicant.”
The Applicant’s case has been strengthened by the fact that he is the holder of NID Birth Certificate. This matter can, therefore, be distinguished from Tamanabae, where the applicant relied on one Blue PNG Birth Certificate, and her PNG Passport recorded a different place of birth.
It is also the case, as has been highlighted above, that the Applicant supplied the Department with a plethora of other information, including a contemporaneously completed Family Book and various Roman Catholic Church records.
It is necessary, having set out the above information, to deal with the information pertaining to the issue of the 2018 document, which the Delegate found was fraudulent.
In the Applicant’s Statement of Response, the following explanation is provided – Exhibit 2 A3 p. 3:
“Due to a typing error with my mother's name on my original 2011 certificate and acting on advice from my consultant to have this error corrected, I enquired at the Civil Registry office if they could assist me by having a reprint of the same blue certificate however with the name corrected in order to attach with my immigration application. My enquiries were not greeted with any resistance, and even more the kind staff were very forthcoming and helpful advising me that it wouldn't be an issue to have the reprint done even tailing me to return the next day to collect at no cost. They did mention that the new NID Birth certificates were in effect and at some stage to come back and apply for a new certificate. However, as it was only a reprint of the old certificate with corrections made to the name, and also adding to the fact that it was signed out of the registry office they were confident it would not pose an immediate problem.
Upon collection, my Consultant didn't have issues with the fact that the certificate was dated 6 November 2018 due to the simple fact that it was signed and stamped by the Deputy Registrar and as a result submitted as part of my application.”
The 2011 Certificate of Birth Entry incorrectly spelt the Applicant’s mother’s maiden name as “Dandy” rather than “Danby”. The other difference between the 2011 and 2018 Certificates is that the Applicant’s mother’s nationality is stated as “Papua New Guinean” in the 2011 document, but “English” in the 2018 document – Exhibit 1 T4 p. 38, T17 p. 90.
The Tribunal has no reason to doubt the veracity of the Applicant’s account of how and why he obtained the 2018 PNG Certificate of Birth Entry. Certainly, it was open to the Delegate to form a negative view of what occurred; however, she did not have the benefit of hearing the Applicant give evidence, nor did she have the benefit of considering the newly issued 2022 Certificate. It is likewise open to the Tribunal, based on the evidence presented, to form a different view of the Applicant’s account. For the reasons given above, the Tribunal finds that the Applicant did not try to fraudulently obtain a Birth Certificate and that the 2018 PNG Certificate of Birth Entry was properly issued and is valid.
Having regard to the above finding, it is not necessary for the Tribunal to deal at any length with the documentation relating to the Applicant’s sister, Ms Theresa Mili. However, the Tribunal was provided with a copy of Ms Mili’s new PNG Certificate of Birth Entry issued under the PNG Civil and Identity Registration System – Exhibit 1 T30 p. 155. That Certificate records that “Theresa Vagi” was born at Angau Memorial General Hospital, Lae, Morobe in March 1956. The document was issued on 4 May 2018 and signed by the Provincial Registrar-General. The parents are stated to be “Shiela [sic] Monica Dawby [sic]” and “Aluvula Fred Vagi”. Mr Vagi’s occupation is listed as “Carpenter”.
Further, Ms Mili’s PNG Passport, which was issued on 9 October 2019, lists her place of birth as Lae – Exhibit 1 T27 pp. 148, 158.
The Tribunal was also provided with a Blue PNG Certificate of Birth Entry, issued on 5 July 2004, which records Ms Mili’s birth as in March 1956 and the place of birth being Angau Memorial Hospital, Morobe Province – Exhibit 1 T18 p. 128.
The Delegate and the Respondent refer to an undated Blue PNG Certificate of Birth Entry which was certified as a true copy of the Deputy Registrar General on 7 January 2010, which records Ms Mili’s place of birth as St Therese Hospital, Bandili – Exhibit 1 T26 p. 144, Respondent’s Written Closing Submissions (RWCS) pp. 2 – 3 para 6(c). The Delegate also referred to a PNG Certificate of Birth Entry issued on 18 May 2009 and a PNG Police Clearance Certificate issued on 28 May 2009, both of which record Ms Mili as having been born in Bandili in the National Capital District of Papua – Exhibit 1 T31 p. 173. It would appear that these documents were lodged by Ms Mili in support of an application she made to the Department.
The Tribunal was not provided with a copy of these documents, and, as such, they do not form part of the evidence.
The Tribunal appreciates that there may be other conflicting information; however, for the purposes of the disposition of this matter, it is tolerably clear that the official PNG documentation admitted into evidence in these proceedings suggests that Ms Mili was born in Lae in March 1956.
It should be noted that the official PNG birth records are, as the Respondent has noted, based, in part, on self-reporting. This was the case in Australia also, as the reporting of a birth is almost always executed by the parent or parents of a child who also provide the name of the child. In PNG, until recently, this self-reporting was made more problematic as key life information was not required by law to be registered. Voluntary registration, problems of geography, language and culture, all combined, had the effect of rendering the accuracy and utility of PNG birth registration problematic, at least, until recently.
In these circumstances, when assessing the weight to be placed on official birth records produced prior to 2016 in PNG, attention should be given to the credit of an applicant, as well as other non-government documentation which corroborates an applicant’s life history.
In this matter, the Tribunal has been provided with copious information about the Vagi family. The Tribunal formed the view that the material was genuine and, moreover, was helpful.
Attention should first be given to the “Vagi Family Record Book” – Exhibit 1 T18 pp. 120 – 126.
The Respondent contends that it is unlikely that this book would have been completed by a person other than the Applicant’s mother or father – RWCS p. 1 para 9. The Tribunal agrees with this submission, and formed the view, having considered the written and oral evidence, that it was most likely completed by the Applicant’s mother, and that she did so at the time of the birth of each of her children. Consequently, the Tribunal formed the opinion that the Vagi Family Record Book provides contemporaneous information about the birth details of each of the Vagi children. The Applicant’s mother would have no plausible reason for inserting incorrect information about the place of birth of her children. In 1958, independence for Papua New Guinea was approximately 17 years in the future and the information contained in the Vagi Family Record Book would, prima facie, have been a true and accurate record.
The copy provided to the Tribunal is difficult to read; however, it is tolerably clear that of the eight children recorded, only Theresa and the Applicant are recorded as having been born in Lae. The first child was recorded as being born in “Bootless” which is in close proximity to Port Moresby. Moreover, in the case of the second, fifth, sixth, seventh and eighth children, Koki is recorded as the place of birth which, likewise, is close to Port Moresby.
The Tribunal was also presented with, inter alia, Roman Catholic Church records which suggest that the Applicant was born in Lae. It is not necessary to deal at any length with those documents.
It is tolerably clear to the Tribunal that the key piece of information admitted into evidence is the Vagi Family Record Book. It appears to be genuine document which contains key birth information that was recorded by the Applicant’s mother in the years between 1948 – 1968 when she gave birth to her children.
It is also not in serious dispute that the Applicant has always held himself out as being born in Lae, or, if that were incorrect, that at least for the past 20 years, he has done so – RWCS p. 3 para 8.
In short, there is a significant body of evidence, both official and unofficial, which supports the Applicant’s contention that he was born in Lae. The Respondent, and the Delegate, quite properly pointed out that some conflicting information was presented. It is appropriate, when considering an application for citizenship, that a decision-maker carefully scrutinises the information presented and test its veracity. The conferral of citizenship brings with it propound consequences, not only for an applicant, but for the broader Australian community. The bestowal of citizenship, whether by conferral or descent, brings with it both privileges and duties, but most importantly, allows an applicant to become a full member of Australian society. It is necessary then, that a citizenship application be subject to strict scrutiny and that the information submitted in support by an applicant be thoroughly tested.
For the reasons given above the Tribunal has formed the view that there is sufficient cogent evidence to satisfy the Tribunal that the Applicant was born in Lae in 1958, and he was, therefore, born outside of Australia.
Did the Applicant have an Australian citizen parent at the time of his birth?
Having accepted that the Applicant was born outside of Australia on or after 26 January 1949, the next issue is whether he had a parent who was an Australian citizen at the time of his birth.
The Tribunal has been presented with some evidence about the Applicant’s parents’ citizenship status in 1958; however, that material was not subject to close scrutiny, either by Delegate or during the Hearing. Indeed, the information presented does contain some possible inconsistencies. For example, the place of birth recorded for the Applicant’s parents in their respective PNG Certificate of Birth Entries issued on 6 November 2018 is different to their place of birth as recorded in a 2011 Register of Birth Entry – see Exhibit 1 T4 pp. 39 – 40 and Exhibit 1 T18 p. 127. As, for example, Gereka is located in close proximity to Bootless Bay, it is likely that the inconsistencies can be easily explained. However, in the absence of such explanations, the Tribunal is not in a position to make sensible findings.
The contentions of the Respondent with respect to the Applicant’s parents are short, and it is contended that there is insufficient probative evidence to support a finding that the Applicant had an Australian citizen parent at the time of his birth – Exhibit 2 RSFIC pp. 13 – 14 paras 39 – 44.
There is insufficient evidence before the Tribunal to enable a sensible finding on this question. It would be appropriate for the matter to remitted so that this question, as well as any other remaining questions, can be appropriately dealt with.
The Tribunal makes no finding as to whether the Applicant had an Australian citizen parent at the time of his birth.
DECISION
The Tribunal sets aside the decision under review and remits the matter to the Respondent with a Direction that the Respondent is satisfied that the Applicant was born outside of Australia for the purposes of s 16(2) of the Australian Citizenship Act 2007 (Cth).

I certify that the preceding 132 (one hundred and thirty-two) paragraphs are a true copy of the reasons for the decision herein of Deputy President J Sosso

.........................[SGD]...............................................
Associate
Dated: 7 November 2022

Date of hearing: 5 October 2022

Date final submissions received: 19 October 2022

Advocate for the Applicant: Ms Glenyse Morea

Solicitor for the Respondent: Ms Cody Allen

Date of hearing:	5 October 2022
Date final submissions received:	19 October 2022
Advocate for the Applicant:	Ms Glenyse Morea
Solicitor for the Respondent:	Ms Cody Allen