Vani and Minister for Citizenship and Multicultural Affairs (Citizenship)
[2024] AATA 3180
•6 September 2024
Vani and Minister for Citizenship and Multicultural Affairs (Citizenship) [2024] AATA 3180 (6 September 2024)
Division:GENERAL DIVISION
File Number: 2022/3968
Re:Stanley Vani
APPLICANT
AndMinister for Citizenship and Multicultural Affairs
RESPONDENT
DECISION
Tribunal:Senior Member T Tavoularis
Date:6 September 2024
Place:Brisbane
Pursuant to section 43 of the Administrative Appeals Tribunal Act 1975 (Cth), this Tribunal affirms the decision made by a delegate of the Respondent on 9 May 2022 to refuse the Applicant Australian citizenship by descent.
.....................[SGD].................
Senior Member T Tavoularis
Catchwords
CITIZENSHIP – decision to refuse Australian citizenship by descent – where Applicant claims to be of Aboriginal heritage – where the Applicant has always remained offshore – application of tripartite test from Love, Thoms v Commonwealth – Tribunal finding that the Applicant does not satisfy the tripartite test – decision under review affirmed
Legislation
Administrative Appeals Tribunal Act 1975 (Cth)
Australian Citizenship Act 2007 (Cth)
Cases
Helmbright v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (No 2) [2021] FCA 647
Love; Thoms v Commonwealth of Australia [2020] HCA 3; (2020) 270 CLR 152Mabo v Queensland [No.2] (1992) 175 CLR 1
Secondary material
Constitution of the Independent State of Papua New Guinea 1975 (Papua New Guinea)
REASONS FOR DECISION
Senior Member T Tavoularis
6 September 2024
INTRODUCTION
By a decision dated 9 May 2022[1], a delegate of the Minister for Citizenship and Multicultural Affairs (‘the Respondent’)[2] refused the Applicant Australian citizenship by descent. The application was made pursuant to section 16(2) of the Australian Citizenship Act 2007 (Cth) (‘the Act’) which allows a person outside of Australia after 26 January 2007 to become an Australian citizen based on a parent of that person being an Australian citizen at the time of the Applicant/person’s birth.
[1] The ‘Decision Under Review’.
[2] Prior to 29 July 2024 the Respondent’s Minister’s portfolio was referred to as Minister for Immigration, Citizenship and Multicultural Affairs.
Mr Jimmy Stanley[3] is the Applicant’s father who is an Australian citizen. He acquired that Australian citizenship by birth. He was born on 25 October 1962 in Port Moresby while the territory of Papua New Guinea (‘PNG’) was still part of Australia. The Applicant was born on 12 November 1987. One would therefore quite readily conclude that the above sequence of events would facilitate a finding in favour of the Applicant.
[3] Also known as Jimmy Vani. The Applicant’s father.
However, the PNG Constitution has something to say about such a straightforward outcome. Despite Mr Jimmy Stanley’s abovementioned acquisition of Australian citizenship by birth (in October 1962), section 65(1) of the PNG Constitution provides that he became a citizen of PNG on PNG Independence Day which occurred on 16 September 1975. As noted by the delegate in the Decision Under Review, Australia did not allow dual citizenships until 4 April 2002 and anyone who acquired PNG citizenship via section 65(1) of the PNG Constitution also ceased to be an Australian citizen. [4]
[4] A1, p.78
Prior to defining the configuration of the Applicant’s position before the instant Tribunal, it is worth quoting sections 64 and 65(1) of the PNG Constitution in full:
‘Section 64 - Dual citizenship
1Notwithstanding the succeeding provisions of this Part but subject to Subsection (2), no person who has a real foreign citizenship may be or become a citizen, and the provisions of this Part shall be read subject to that prohibition.
2Subsection (1) does not apply to a person who has not yet reached the age of 19 years, provided that, before he reaches that age and in such manner as is prescribed by or under an Act of the Parliament, he renounces his other citizenship and makes the Declaration of Loyalty.
3A person who has a real foreign citizenship and fails to comply with Subsection (2) ceases to be a citizen of Papua New Guinea when he reaches the age of 19 years.
4For the purposes of this section, a person who-
(a)was, immediately before Independence Day, an Australian citizen or an Australian Protected Person by virtue of—
(i) birth in the former Territory of Papua; or
(ii) birth in the former Territory of New Guinea and registration under Section 11 of the Australian Citizenship Act 1948-1975 of Australia; and
(b)was never granted a right (whether revocable or not) to permanent residence in Australia, has no real foreign citizenship.
Division 2 - Acquisition of Citizenship.
65.Automatic citizenship on Independence Day.
1A 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.
2A person born outside the country before Independence Day who has two grand-parents born in the country is a citizen as from Independence Day if
(a)within one year after Independence Day or such longer period as the Minister responsible for citizenship matters allows in a particular case, application is made by him or on his behalf for registration as a citizen; and
(b)he renounces any other citizenship and makes the Declaration of Loyalty—
(i) if he has not reached the age of 19 years—in accordance with Section 64(2) (dual citizenship); or
(ii) if he has reached the age of 19 years—at or before the time when the application is made.
3In Subsection (1), "adjacent area" means an area that immediately before Independence Day constituted—
(a)the Solomon Islands; or
(b)the Province of the Republic of Indonesia known as Irian Jaya; or
(c)the islands in Torres Straits annexed to the then Colony of Queensland under Letters Patent of the United Kingdom of Great Britain and Ireland bearing date the 10th day of October in the forty-second year of the reign of Her Majesty Queen Victoria (that is, 1878),not forming on Independence Day part of the area of Papua New Guinea.
4Subsections (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; or
(c)is registered as an Australian citizen under Section 11 of the Australian Citizenship Act 1948-1975 of Australia; or
(d)is a citizen of a country other than Australia 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).
5A person to whom Subsection (4) applies may, within the period of two months after Independence Day and in such manner as may be prescribed by or under an Act of the Parliament, renounce his right to permanent residence in Australia or his status as an Australian citizen or as a citizen of another country and make the Declaration of Loyalty.
6Where in his opinion it is just to do so, the Minister responsible for citizenship matters may in his deliberate judgement (but subject to Division 4 (Citizenship Advisory Committee)), extend the period of two months referred to in Subsection (4), but unless the Minister is satisfied that the applicant—
(a)assumed in error that he was a citizen; or
(b)did not know that he was not a citizen; or
(c)had no reasonable opportunity or not enough time to determine his status, the period may not be extended beyond a further two months.’
The Applicant configured the instant application such that his father (Mr Jimmy Stanley) should now be found to be an Aboriginal Australian. The consequence of such a finding would be that Mr Stanley could avoid the operative effect of section 65(1) of the PNG Constitution. He would do so on two grounds. First, as an Aboriginal Australian, he would, pursuant to section 64(1) of the PNG Constitution be found to have ‘a real foreign citizenship’; and second, as an Aboriginal Australian, he would, pursuant to section 65(4)(a) of the PNG Constitution, be found to have a right of permanent residence in Australia.
Thus, the determinative issue is whether the Applicant can establish his father’s Australian Aboriginality. To succeed, the Applicant must establish his father meets the tripartite test referred to in Love; Thoms v Commonwealth of Australia [2020] HCA 3; (2020) 270 CLR 152 (‘Love and Thoms’). If found to be an Aboriginal Australian, Mr Stanley will be able to (1) demonstrate ‘real foreign citizenship’; (2) that he otherwise has a right to permanent residence in Australia; and (3) thereby avoid the operative effect of section 65 of the PNG Constitution.
DOES THE APPLICANT’S FATHER SATISFY THE TRIPARTITE TEST?
Reduced to its essentials, the critical issue is whether the Applicant can demonstrate that his father was – via application of the tripartite test – an Aboriginal Australian as at 16 September 1975, that date being PNG Independence Day. The Respondent has helpfully outlined the principles and operative nature of the tripartite test and there is no need to repeat any of that here.[5] The primary task for this Tribunal involves an application of the tripartite test to the circumstances of the Applicant’s father.
[5] R2, p 8 [31]-[33].
As noted by the Respondent, the factual reality is that Mr Jimmy Stanley has never been to mainland Australia and has never resided here. He was in PNG on PNG Independence Day. To my mind, this gives rise to a fundamental difficulty for the Applicant. As noted by Nettle J in Love and Thoms, ‘axiomatically, a person cannot be a member of an Aboriginal Society continuously united in the acknowledgement of its laws and customs unless he or she resident in Australia’.[6]
The first limb of Love and Thoms: can Mr Jimmy Stanley prove biological descent from an identifiable indigenous group, clan or community?
[6] Love and Thoms, [270].
The evidence around the Applicant’s claim that his father is an Aboriginal Australian by descent can be reduced to the following:
·assertions in various statutory declarations comprising:
othat of his father made on 13 January 2023;
othe Applicant himself;
othat of his grandmother’s brother (Vani Tom); and
·a family tree prepared by the Applicant;
·certain ‘Confirmation(s) of Aboriginality and Torres Strait Islander Descent’ respectively dated 30 March 2024; and
·the evidence of Ms Sarah Addo, who is the daughter of Sam Daniel Addo (a Kimoiburra Yarraburra Gunggandji man)
Turning to the evidence of Ms Addo, she was asked during evidence-in-chief to explain or provide some clarity around the Applicant’s claimed Aboriginal heritage. She declared herself to be the daughter of a ‘Sam Daniel Addo’ whom she described as a ‘Kimoiburra Yarraburra Gunggandji man, traditional owners of Cairns and Yarrabah’.[7] She then said ‘So its true, Stanley’s [the Applicant]’s presentation for Aboriginality.’[8]
[7] Transcript, p 28, lines 18-19.
[8] Transcript, p 28, line 19.
This truth, according to Ms Addo, is to be found in the Applicant’s ‘approach a Gunggandji member about his Aboriginality in which Stanley has informed that he was Gunggandji through an – a descent of Moses Obah’.[9] Upon someone being thus told of their Aboriginality, Ms Addo then becomes involved in the process on this basis: ‘So my role in my tribe is that I’m the authorised person, so I go back out and I connect a lot of our people to their genealogies, to their apical ancestors’.[10]
[9] Transcript, p 28, lines 19-21.
[10] Transcript, p 28, lines 21-23.
Neither (1) was the Gunggandji member who apparently told the Applicant of his Aboriginality produced to confirm there was any such discussion nor (2) was there any document tendered to support the claimed credentials or expertise of Ms Addo to ‘connect a lot our people to their [now-claimed] genealogies’.[11] Ms Addo then sought to describe a genealogy referrable to the Applicant. This genealogy comprised a narrative of her and hers alone which is said to have its basis in her having ‘…gone back to elders for clarification on Stanley [the Applicant]’s genealogies….’[12]
[11] Transcript, p 28, line 23.
[12] Transcript, p 28, lines 35-36.
According to Ms Addo, the process of re-constructing or re-establishing a genealogy is complicated by ‘…the forcible removal of Aboriginal children …sent to different areas …around the country, and some were even sent interstate.’[13] There is nothing before the Tribunal to demonstrate that any of the Applicant’s now-claimed ancestors were forcibly removed from their traditional areas or that his now-claimed genealogy has been impacted by any such removal.
[13] Transcript, p 28, lines 39-40.
Ms Addo concluded her evidence-in-chief by saying she arrived at this genealogy now said to give rise to the Applicant’s Aboriginality via ‘…a lot of researchers have gone down and a lot of engagement with tribal elders who confirmed that Stanley’s descent, blood descent, does come from Granny Mandi Tjpir, who is his great-great-great grandmother’.[14]
[14] Transcript, p 28, lines 42-45.
At the commencement of her cross-examination, Ms Addo confirmed that the extent of her task in seeking to establish the Applicant’s Aboriginal descent went no further than her having discussions with elders. She was specifically asked whether she had sought any confirmation from any elder about the existence of any community recognition of the Applicant and his father by the Gunggandji people. Her vague and unconvincing response was put in these terms: ‘Well, they [the Applicant and his father] are [members of the Gunggandji people] through their genealogy, their bloodline. They don’t need to be in community. They can be in any community, but it’s your bloodline that connects you to your apical ancestor, and that’s what connects them to Granny Mandi is their blood. So as long as they got blood, they Aboriginal.’[15]
[15] Transcript, p 29, lines 45-47; p 30, lines 1-3.
Her cross-examiner sought clarification about her premise regarding a person’s Aboriginality ‘So long as they got blood’. As best as I understood her evidence, she sought to ground her premise in the concept of ‘native title’:
‘MR BYRNES: Is there some precedent or rule set out by the Gunggandji people about that statement you said about the blood makes them Aboriginal?
MS ADDO: Well, if you – that’s what you get native title based off. You get native title recognition through your bloodline, through your apical ancestors.’[16]
[16] Transcript, p 30, lines 5-8.
The essence of the basis on which Ms Addo was asserting the Applicant’s Aboriginality can, I think, be found in the following quote from the transcript. She was specifically asked about the nature of her enquiries about the Aboriginality of the Applicant’s father as at 16th September 1975, that being the date of Papua New Guinean independence. Her response made it clear that her starting point was 1991 which is when she says the concept of native title ‘came out’. According to Ms Addo, one simply works backwards from the year 1991 to prove a person’s Aboriginality because ‘the native title superseded…..the land.’[17] This is the relevant exchange appearing in the transcript:
‘MR BYRNES: Your enquiries, do they go beyond considering what the position was as at – sorry, let me rephrase that. Did your enquiries go to what the recognition was of Mr Stanley as at 16 September 1975?
MS ADDO: What do you mean by that? Can you break that down a bit? Because native title only come out in 1991 – ’93.
MR BYRNES: Your focus is on native title. Is that what you’re saying?
MS ADDO: Well, during the Land Rights Act, we could go back. But (indistinct) that the native title superseded that, the Land. That’s why all Aboriginal people had to go back for their land a second time to prove their identity. So in the case with Stanley here, we are current native title holders, and Stanley’s grandmother Mandi Tjpir and Granddad Billy Church appear on our native title determination application that was handed down. And we got two determinations, one in 2011 and another one in 2012. So that’s all we can focus on, is the native title, because the Native Title Act superseded all those other relevant Land Rights Act that Aboriginal people fell under.’[18]
[17] Transcript, p 30, lines 17-18.
[18] Transcript, p 30, lines 10-25.
Neither of the abovementioned ‘determinations’ are in evidence before the Tribunal and there is nothing to suggest either or both of those ‘determinations’ establish any matrilineal line referable to ‘Stanley’.
Ms Addo’s cross-examiner further refined his original question. He specifically asked Ms Addo whether she could locate or produce any recognition or acceptance on the part of the Gunggandji people that Mr Stanley (the Applicant’s father) was a member of their tribe as at 16th September, 1975. She was not able to do so. Instead, she said she took her enquiries ‘back to 1900’s’ and directed her focus on someone she referred to as ‘Moses’ who apparently was Mr Stanley’s grandfather.
Upon being reminded that Mr Stanley could not possibly have been alive in the 1900’s, she said this is why she focussed on ‘Moses’ and ‘…then coming down the line’ from this ‘Moses’ person. Ms Addo was then questioned about any material the Applicant provided to her indicating that this ‘Moses’ person may have originated from Vanuatu. Her response to this question was both evasive and vacuous. She eventually denied being in receipt of any information about ‘Moses’ originating from, or being born in, Vanuatu.
She eventually accepted the Applicant may have ‘sent through documents’ to her but that in reaching her findings she ‘…relied heavily on our documents, our native title documents’.[19] She identified a ‘Connections’ report apparently written in support of a native title determination in 2011 and 2012. There is nothing before this Tribunal indicating (1) any such report was used in any native title determination in 2011 and/or 2012; and (2) that any such report evidenced any matrilineal (or other) lineage referrable to Mr Stanley being part of the Gunggandji tribe. Ultimately, Ms Addo accepted this ‘Connections’ report made no reference and otherwise had nothing to say about either the Applicant or his father either as at 16th September, 1975 or at any other time. The unsatisfactory state of her evidence can be readily gleaned from the transcript:
[19] Transcript, p 31, lines 29-30.
‘MR BYRNES: My question is, Ms Addo, did you give consideration to the recognition by your tribe of Mr Stanley – that’s Mr Vani’s father – as at 16 September 1975?
MS ADDO: We actually went past that. We actually went back to 1900s, I think 1908, to actually establish Moses, his grandfather.
MR BYRNES: My question is concerned specifically with recognition of the membership of your tribe by Mr Stanley, and he wasn’t alive back then in 1900 or what you said?
MS ADDO: No. That’s why we focused on the grandfather Moses.
MR BYRNES: Your analysis was focused on Moses, that’s right?
MS ADDO: Yes, and then coming down the line.
MR BYRNES: Did Mr Vani give you material that indicated that Moses Obah or Tom Moses may have been born or from Vanuatu?
MS ADDO: That’s through the – we know that they got – the Obah family got Vanuatu blood, because one of the – one of the – when Reverend Gribble went to Yarrabah he bought Andrew Obah, who is the – who is the grandfather, with him. But it’s – the Aboriginal descent is through the mother, not the father.
MR BYRNES: But I’m just trying to ask if you were aware that there was information that suggested that Tom Moses and Moses Obah were from or born in Vanuatu?
MS ADDO: Sorry, you just cut out there. I can’t hear you.
MR BYRNES: My question was were you aware of information that suggested that Tom Moses and Moses Obah were born in or from Vanuatu?
MS ADDO: No. We wouldn’t have any information of that.
MR BYRNES: In your analysis of Mr Vani’s lineage, did you rely on documents that Mr Vani provided you?
MS ADDO: He sent through documents, but we relied heavily on our documents, our native title documents.
MR BYRNES: What documents are those?
MS ADDO: Those are the Connections report that was written for East Trinity and Yarrabah in our successful consent determination in 2011 and 2012.
MR BYRNES: Does that refer to Mr Vani?
MS ADDO: No, refer to his apical ancestor.
MR BYRNES: Does it refer to Mr Stanley, his father?
MS ADDO: No.’[20]
[My emphasis]
[20] Transcript, p 31, lines 1-38.
Ms Addo’s cross-examination then proceeded to her involvement with the
Woompera-Muralug Co-Operative Society Limited. This Co-Operative Society is said to have issued two documents purporting to confirm the Aboriginality of the Applicant and his father. Both of these documents bear the Co-Operative Society’s seal and are both dated 30th May 2024.[21] Ms Addo told the instant Hearing that she was the Co-Operative Society’s Chief Executive Officer.[22]
[21] A8.
[22] Transcript, p 31, line 41.
She was taken to the two abovementioned documents which make no mention of her name and asked whether she had any involvement in the processing or making of any determination about the claimed Aboriginality of the Applicant and his father contained in these documents. She responded in the affirmative in these terms:
‘MS ADDO ….Course, yes, yes, I do. I do have – like I said, with the form, when it was highlighted that there was an Aboriginality, all of the research in confirming that this Aboriginality, like every other Aboriginal and Torres Strait Islander person who lodges a membership for Aboriginality, a form for recognition of Aboriginality, I go back and check all the genealogies with relevant families and confirm with relevant families on the genealogies. So – and then it’s all processed through to the board and the board makes that analysis in determining once I give them all the information pertaining to the Aboriginality request of the applicants.
MR BYRNES: In short, if I can summarise it, and just correct me if I’m wrong, the point of that is to work out if someone is descended from an Aboriginal. Is that right?
MS ADDO: Yes.’[23]
[23] Transcript, p 31, lines 46-47; p 32, lines 1-11.
Ms Addo told the instant Hearing that the Muralug Co-Operative Society was established in 1975. She claimed this Co-Operative Society had authority from the Gunggandji people to determine who are members of the tribe because ‘…most of the board is Gunggandji’.[24] She was specifically asked how this determination process worked and she responded with this:
‘Because we’re all members of the Woompera Muralug. So when we go to an AGM, as members they have a right to be voted on as board of directors, and it just so happens that a lot of Gunggandji people voted on this.’[25]
[24] Transcript, p 32, line 19.
[25] Transcript, p 32, lines 21-24.
Ms Addo was then asked to particularise the steps she took to establish any connection between the Applicant to Moses Obah and Minnie Barlow whose names appear in the respective ‘Confirmation of Aboriginality’ documents issued by the Co-Operative Society. She vaguely spoke of (1) being ‘able to make connections’ through the family of the Applicant’s father; (2) consulting some type of ‘archive’ at the State Library; and (3) going ‘back to our native title documents’ that apparently ‘confirmed the genealogies’ giving rise to the purported certification of Aboriginality for both the Applicant and his father.
The stark reality is that Ms Addo cannot particularise how she was ‘able to make’ any such connections between either the Applicant or his father to any of the named individuals appearing in the respective ‘confirmations of Aboriginality’ issued by this Co-Operative Society. She cannot produce any methodological detail around her claimed consultation of any ‘archive’ at any State Library. Likewise, there is nothing from her demonstrating how her claimed consultations with ‘our native title documents….confirmed the genealogies’. No such native title documents have been produced and we have no idea how, if at all, any such documents confirm any genealogy. The unsatisfactory state of Ms Addo’s evidence can be readily gleaned from the relevant portion of the transcript:
‘MR BYRNES: Are you able to break down in more detail the steps you took to connect Mr Vani to Moses Obah and Minnie Barlow?
MS ADDO: So what I did was I talked to some of the families from Granny Minnie, from Granny Mandi’s line, and they were able to confirm with me that Stanley did descend who he says that he’s descending from. So I was able to – sorry.
MR BYRNES: Sorry. You carry on?
MS ADDO: Yes. So I was able to make connections through Stanley’s family, through Granny Mandi, and then I went back to archive, so State Library, and just found records there, and I went back to our native title documents that actually confirms who our – or gives the – found the Gunggandji Connections report from our successful determination. That confirmed the genealogies.’[26]
[26] Transcript, p 32, lines 38-47; p 33, lines 1-2.
When pressed about producing any authoritative document to support what she was saying, her evidence assumed an unconvincing and aspirational tone and of being ‘quite happy to submit material’ going to the proof of what she was telling the Tribunal:
‘MR BYRNES: Do you have a document or something similar that is authoritative? You referred to records from the State Library, for example, that shows each step or each link of the family connection from Mr Vani through to Minnie Barlow?
MS ADDO: Yes. Look, we’re quite happy to do that and we’re quite happy to sit down and present all of that going right back to his grandmother at the start, the apical ancestor, Granny Mandi. And we’re quite happy to work to resolve this in bringing the genealogies to use, and even evidence to prove.
MR BYRNES: My question was if you have the documents that show each step in the link between Mr Vani and Minnie Barlow. Do you have something that you can present now?
MS ADDO: Well, no, not on me. I’ve been busy with child protection. But I can present those documents. I didn’t realise I had to bring materials to – but I – we’re quite happy to submit materials if that’s the case.’[27]
[27] Transcript, p 33, lines 4-17.
Ms Addo was then asked about the nature and extent of her consultations with extant Gunggandji tribe members as part of the process of how the Co-Operative Society (through her) is able to ‘…go back and check all the genealogies with relevant families on the genealogies.’[28] Ms Addo’s evidence was palpably unconvincing and unsatisfactory. To my mind, this is clearly borne out by the transcript:
[28] Transcript p 32, lines 3-4.
‘MR BYRNES: Who did you talk to? Can you name people precisely who connected Mr Vani through to Minnie Barlow?
MS ADDO: Yes. There was Philly Obah, but I can’t remember her name, but I – Philly. She used to be Philly Nukata, but I can’t remember her maiden name. I think Stanley is – knows her. But I sat down with her and I sat down with Dorothy Muka, who also descends from that same line. Then I sat down with Charles Addo, our elders committee, the Kimoiburra Yarraburra Gunggandji people tribal elders council, and then they confirmed.
MR BYRNES: Those three people, and is there anyone else?
MS ADDO: There probably is more, but I just don’t have it in front of me. The paperwork is actually in the office. Because I’m at a child protection meeting which I just came away from.
MR BYRNES: Philly Obah: how old is Philly?
MS ADDO: No, she used to be Philly Nukata, but I don’t know what her married name is.
MR BYRNES: Okay?
MS ADDO: So Philly would be around about 45, maybe a bit older. But I would say about 45 or a bit older, maybe just around 50 or just a bit over 50. I can’t - - -
MR BYRNES: What connection is she to Minnie Barlow?
MS ADDO: Sorry?
MR BYRNES: What connection is she to Minnie Barlow?
MS ADDO: She would be granddaughter, great-great-great granddaughter, yes.
MR BYRNES: How would she know of Mr Vani’s connection to Minnie Barlow, or what did she - - -?
MS ADDO: Well, they monitor all of that. Each family monitors their – like, me, I’m responsible for Gunggandji genealogy. But each family within those families are responsible to – are responsible for monitoring their descendants’ genealogy. That’s why we go back to families for connection, because the families are – they’re all – they are the ones that maintain all of that.
MR BYRNES: Is that now currently – is it maintained in writing or something like that?
MS ADDO: Well, it is now.
MR BYRNES: But you don’t have the documents that support that?
MS ADDO: Well, I do for – going back to Stanley’s apical ancestor. I can demonstrate them.
MR BYRNES: What about Dorothy Muka?
MS ADDO: Dorothy Muka also is a great-granddaughter of Granny Mandi and Granny Norah, Granny Minnie.
MR BYRNES: What did she have to say about Mr Vani’s connection to Minnie Barlow?
MS ADDO: Sorry, you just dropped out. I didn’t hear you.
MR BYRNES: I’m trying to understand what she told you about Mr Vani’s connection to Minnie Barlow?
MS ADDO: Yes. Just confirming that he does come from that descendant, that line, that bloodline.
MR BYRNES: It’s kind of a conclusory remark. She said that, yes, he does come from that bloodline?
MS ADDO: Yes, he does.
MR BYRNES: Did she give any more detail?
(No audible response.)
MR BYRNES: Did you hear my question, Ms Addo?
MS ADDO: No, you blanked out there. If you could just repeat it, please. You just keep cutting in and out.
MR BYRNES: I’m just wondering if Ms Muka gave you any more detail about the connection between Mr Vani and Minnie Barlow?
MS ADDO: Yes, she did. She would’ve – she talked to Philly, because her and Philly are sisters. Her and Philly Nukata are sisters.
MR BYRNES: What was that detail?
MS ADDO: That he does descend from Norah, Granny Norah, Granny Minnie’s daughter – Granny Minnie’s mother.
MR BYRNES: Charles Addo, what did he have to say?
MS ADDO: He said the same thing, that he – they are Gunggandji.’[29]
[29] Transcript, p 33, lines 19-47; p 34, lines 1-38.
The state of Ms Addo’s evidence about these tribal members she says she spoke to comes down to this:
·Philly Obah (aka Philly Nukata)
ois 45-50 years old;
ois apparently Minnie Barlow’s ‘great-great-great-grandaughter’;
oher knowledge of the Applicant’s connection to Minnie Barlow is the result of her (Philly Obah) ‘monitoring all of that ’ (being the genealogy of the person claiming Aboriginality);
·Dorothy Muka
ois apparently ‘a great-granddaughter of Granny Mandi and Granny Norah, Granny Minnie’;
ocan apparently confirm ‘that he [the Applicant] does come from the bloodline’;
othis purported confirmation should be accepted because Muka and Philly Obah/Nukata are sisters;
·Charles Addo
oapparently says ‘the same thing’ as Muka and Philly Obah/Nukata: ‘that he-they [i.e. the Applicant and his father’] are Gunggandji’.
It suffices to say that none of Philly Obah/Nukata, Dorothy Muka or Charles Addo were called to corroborate anything Ms Addo said nor have any of them provided written statements evidencing whatever view or belief they may have about any Aboriginality attributable to the Applicant and/or his father.
Ms Addo was then asked about the source of the authority behind any confirmation about a person’s Aboriginality from the Woompera-Muralug Co-Operative Society Limited. Earlier in her evidence, Ms Addo told the Hearing that such authority vested in the Co-Operative Society itself.[30] Towards the end of her cross-examination, she said that such authority emanated from her ‘alongwith a lot of elders’:
‘MR BYRNES: I’m just trying to work out who has the authority to determine whether or not someone is a member of the Gunggandji people?
MS ADDO: In the case of the Gunggandji people, I do, along with a lot of elders. So I can endorse with – as an authorised person, but the elders are the ones that endorses it. They’re the ones that we go to for clarification and confirmation of individuals who they believe is Gunggandji.’[31]
[30] Transcript, p 32, lines 17-20.
[31] Transcript, p 35, lines 7-12.
Finally, Ms Addo was asked about whether she could be more specific about any records or other documentation she may have consulted in determining the Applicant’s Aboriginality. Her vacuous response was put in these terms:
‘MR BYRNES: I’m just wondering if you – is there any way you can be more specific about records and the like that you relied on in determining Mr Vani’s connection to Minnie Barlow other than discussions with those persons we talked about?
MS ADDO: Well, he – we – like every family. So we ask family to supply their genealogy, and then we go out and we research there the apical ancestor to make that connection. In this case, Stanley’s submitted his genealogy along with documentations of who he was. We went out and confirmed with families, and then we went and confirmed through the apical ancestors.’[32]
[32] Transcript, p 35, lines 7-12.
The state of the evidence does not permit me to conclude that this first ‘descent’ limb of the tripartite test is satisfied. I am mindful of that all three limbs of the tripartite test must be satisfied. Obviously, I have found the Applicant fails the first limb and that should be the end of this matter. But I will, largely for the sake completeness, proceed to consider the other two limbs of the tripartite test.
The second limb of Love and Thoms: can Mr Stanley demonstrate that he self-identified as a member of Gunggandji people as at 16th September, 1975?
The material contains a statutory declaration from Mr Stanley.[33] In that declaration, Mr Stanley declares: ‘3. I identify as an Aboriginal person as I am a descendant of Minnie Barlow of the Gunggandji People of Yarrabal Aboriginal Community, in Queensland, Australia.’ The fatal difficulty in demonstrating Mr Stanley’s self-identification as an Aboriginal person is that it is only a present statement of his claimed identification as an Aboriginal. He cannot demonstrate that he so identified as at the date of PNG’s independence (16th September 1975).
[33] A2.
The Respondent raises two further issues going to the failure to satisfy this second limb:
(a)Mr Stanley’s claimed assertion of Aboriginal identification is a mere assertion unilaterally made by him. There is no corroborative evidence to support his unilateral assertion. My review of Ms Addo’s evidence convinces me that nothing of which she had to say rises to the level of corroborative evidence;
(b)The Respondent’s Statement of Facts, Issues and Contentions is dated 1 June 2023.[34] Paragraphs [43]-[45] of that document put the Applicant on notice about the difficulties in the evidence militating against this Tribunal finding that this second limb had been satisfied. This difficulty could have been remedied by the Applicant well before the time of the instant Hearing (some 12 months later). The Applicant could, for example, have called his father to give oral evidence at the instant Hearing. He did not do so.
[34] R2, p 12.
I agree with the Respondent: there is presently not sufficient evidence to warrant any finding of self-recognition (insofar as Mr Stanley is concerned) as at 16th September 1975. This second limb therefore fails.
The third limb of Love and Thoms: can Mr Stanley demonstrate mutual recognition of his membership of the Gunggandji tribe by elders or others enjoying traditional authority within that group, clan or community?
In Mabo v Queensland [No.2],[35] Brennan J set out the tripartite test for Aboriginality in these terms:
‘Membership of the indigenous people depends on biological descent from the indigenous people and on mutual recognition of a particular person’s membership by that person and by the elders or other persons enjoying traditional authority among those people.’
[35] (1992) 175 CLR 1.
In Helmbright v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (No 2),[36] Mortimer J (as Her Honour then was) discussed these mutual recognition limbs. Specifically, Her Honour said:
‘….
(b) mutual recognition of a person’s membership of that same group, clan or community by the person concerned and by elders or others enjoying traditional authority within that group, clan or community. In this context, what is required is authority to permit or preclude membership that has its source in the norms handed down from generation to generation, since prior to European settlement.’
[36] [2021] FCA 647.
To my mind, there are two fatal difficulties in the evidence impacting satisfaction of this limb. First, the overwhelming basis of the evidence propounded by the Applicant was genealogical or descent-derived as opposed to demonstrating Mr Stanley’s membership of the Gunggandji tribe by elders or others enjoying traditional authority within that tribe. There is no evidence of recognition of Mr Stanley’s Aboriginality from elders or others within the Gunggandji tribe with traditional authority to make or arrive at any such recognition in accordance with the norms handed down from generation to generation, since prior to European settlement.
Second, the evidence has nothing to say about any such recognition of Mr Stanley’s Aboriginality as at 16th September 1975.
The evidence of Ms Addo is both unhelpful and unreliable. I have sought to highlight the aspects of contradiction and unreliability in her evidence. I think the most significant difficulty with her evidence for the purposes of this third limb derives from her conflation of the concepts of (1) descent/genealogy and (2) actually demonstrating ‘recognition of Mr Stanley’s membership [of the Gunggandji tribe] ….by elders or other persons enjoying traditional authority among those people….’ as at 16the September 1975 or at any other time.
The totality of the task undertaken by Ms Addo was ‘…purely to work out that [the Applicant] is descended from someone who was an Aboriginal.’[37] She was equivocal on the question of being able to conclusively establish Mr Stanley’s membership of the Gunggandji tribe by reference to any cultural norm, rule or principle governing membership of the tribe. Her evidence went no higher than ‘…it’s your bloodline that connects you to your apical ancestor….So long as they got blood, they [are] Aboriginal.’
[37] Transcript, p 29, lines 21-22.
Despite the confused and inconsistent state of Ms Addo’s evidence about whether the Co-Operative Society or she alone had the authority to make determinations about a person’s Aboriginality, it seems beyond argument that the exercise was exclusively configured on the basis of genealogy or bloodline as opposed to meeting Mortimer J’s[38] requirements of establishing Mr Stanley’s membership of the Gunggandji tribe as at 16 September 1975.
[38] As Her Honour then was.
I have expressed my misgivings about Ms Addo’s evidence. I am comfortably satisfied that her evidence fails to convince this Tribunal of an recognition of Mr Stanley’s membership of the Gunggandji tribe ‘….by elders or others enjoying traditional authority within that group…’ as at 16th September 1975.
The two documents apparently attributable to the Woompera-Muralug Co-Operative Society Limited purporting to confirm the Aboriginality of both the Applicant and his father should be received with scepticism and caution. Putting aside any issue around their reliability, both documents suffer from two incurable issues. First, both are exclusively configured or oriented towards establishing Aboriginality by descent/genealogy rather than via the mutual recognition methodology stipulated by Mortimer J[39] in Helmbright. Second, there is no evidence that either document was authored by a Gunggandji elder or other Gunggandji tribal member (or equivalent) enjoying traditional authority within that tribe to permit or exclude membership.
[39] As Her Honour then was.
In terms of this third limb, I am therefore satisfied that there was no recognition of Mr Stanley as a member of the Gunggandji people as at 16th September 1975.
DECISION
The correct and preferrable decision is that the decision under review (made on 9 May 2022) should be affirmed. Accordingly, pursuant to section 43 of the Administrative Appeals Tribunal Act 1975 (Cth), this Tribunal affirms the decision made by a delegate of the Respondent on 9 May 2022 to refuse the Applicant Australian citizenship by descent.
| I certify that the preceding 47 (forty-seven) paragraphs are a true copy of the reasons for the decision herein of Senior Member T Tavoularis |
..............[SGD].................
Associate
Dated: 6 September 2024
Date of hearing: 19 June 2024 Date final submissions received: 9 August 2024 Applicant: Self-represented litigant Counsel for the Respondent: Mr James Byrnes Solicitor for the Respondent: Mr Tigiilagi Etueati (Senior Lawyer)
Australian Government Solicitor
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