Walsh and Minister for Immigration and Multicultural Affairs - [2001] AATA 378

DECISION AND REASONS FOR DECISION [2001] AATA 378

ADMINISTRATIVE APPEALS TRIBUNAL )

) No Q00/400

GENERAL ADMINISTRATIVE DIVISION       )
           Re      SUSAN WALSH
  Applicant
           And    MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
  Respondent

DECISION

Tribunal Deputy President DP Breen, Presidential Member

Date8 May 2001
PlaceBrisbane

Decision The Tribunal affirms the decision under review.

(Sgd) DP BREEN
PRESIDENTIAL MEMBER
CATCHWORDS
IMMIGRATION - citizenship - by descent - whether the applicant was born outside of Australia - by birth - effect of the granting of independence to Papua New Guinea

Australian Citizenship Act1948 ss10C, 23
Papuan New Guinea Independence (Australian Citizenship) Regulations 1975 reg 4
Constitution of Papua New Guinea ss 64, 65

REASONS FOR DECISION

8 May 2001 Deputy President DP Breen, Presidential Member

This was an appeal against a decision by the Minister for Immigration and Multicultural Affairs made on 17 May 2000 refusing a grant of citizenship to the applicant, Susan Walsh.
The matter was heard by me on 12 February 2001 in Brisbane. The applicant was represented by Mr A Van Zyl, Solicitor of Messrs Van Zyl Taljaard, Lawyers and the respondent Minister was represented by Mr P O'Higgins, Solicitor of Messrs Blake Dawson Waldron.
Oral evidence was given by the applicant and Mrs A Sommers, the applicant's sister. The following documents were taken into evidence.

Exhibit 1 "T" Documents
Exhibit 2 Photograph of the applicant's family
Exhibit 3 Photocopy of Certificate of Birth Entry and Australian Citizenship Certificate of Anne Marie Sommers (nee Walsh)

Ms Walsh was born in Hohola Central District, Papua, on 13 July 1970. At this time Papua was under Australian administration. Her mother was an indigenous Papuan and her father was an Australian. Ms Walsh lived in an integrated society but felt that her upbringing was predominantly European in nature. On 16 September 1975 Papua and New Guinea became a united and independent nation. Mr Walsh died in 1982 and at that time he still retained his Australian citizenship.
The issues for determination by the Tribunal were:

whether the applicant satisfies Section 10C of the Australian Citizenship Act 1948 and can gain citizenship by descent;
whether the applicant was born outside of Australia;
whether the applicant obtained Australian citizenship at birth;
if the applicant did have citizenship at birth, whether that citizenship was lost as a result of the granting of independence to Papua New Guinea;
whether the applicant was entitled to residence in Australia at the date of independence;
whether the applicant was indigenous to Papua; and
whether Section 23 of the Australian Citizenship Act had any application in this case.

Section 10C of the Australian Citizenship Act is as follows:
(1)       A person who is registered under this section is an Australian citizen.
(2)       A person may apply to the Minister to be registered under this section.
(3)       The application must be in accordance with the approved form.
(4)The Minister must register, in the prescribed manner, an applicant for registration under this section if:
(a)a natural parent of the applicant was an Australian citizen at the time of the birth of the applicant; and
(b)that parent:
(i)is an Australian citizen at the time an application under this section is made; or
(ii)is dead and at the time of his or her death was an Australian citizen; and
(c)       the applicant:
(i)        was born outside Australian on or after 26 January 1949; and
(ii)is aged 18 years or over on the day on which this section commences; and
(iii)failed for an acceptable reason to become registered as an Australian citizen under:
(A)section 10B; or
(B)section 11 of this Act as in force at any time before the commencement of section 10B; and
(d)       the Minister is satisfied that the applicant is of good character."

The only requirement in contention between the parties was whether Ms Walsh was born outside Australia on or after 26 January 1949. Section 5 of the Act defines "Australia", when used in a geographical sense, as including the external territories. In 1970 Papua was an external territory and so a part of Australia. The question raised before the Tribunal was whether that requirement was to be assessed on the geographic composition of Australia at the date of the applicant's birth or at the date of her application for citizenship.
The place where a person was born is an historical fact which must be determined with respect to the historical context. The use of the term "was" in subsection 13(4)(c)(i) inherently requires the resolution of the question to be determined with a retrospective focus. Therefore, the requirement is to be determined as at the applicant's date of birth. It is the Tribunal's finding that Ms Walsh was born in Papua in 1970 at a time when it was a part of Australia for the purposes of the Act. Therefore, she cannot satisfy Section 10C of the Australian Citizenship Act 1948 and cannot be registered as a citizen by descent.
However, because Ms Walsh was born within Australia, under subsection 10(1) of the Act she acquired Australian citizenship at birth. The complication arises due to the legislation passed with respect to the granting of independence to the regions of Papua and New Guinea.
In 1975 Australia passed the Papua New Guinea Independence Act (Cth) and antecedent regulations which regulated the withdrawal of Australia's sovereignty over the Papua New Guinea nation and other arrangements between the two nations. One of the arrangements covered was the citizenship entitlements with respect to each nation.
Regulation 4 of the Papuan New Guinea Independence (Australian Citizenship) Regulations 1975 provides:
"A person who:
(a)immediately before Independence Day, was an Australian citizen within the meaning of the Act; and
(b)on Independence Day becomes a citizen of the Independent State of Papua New Guinea by virtue of the provisions of the Constitution of the Independent State of Papua New Guinea,
ceases on that day to be an Australian citizen."

In order to interpret this Australian legislative instrument, it is necessary to have recourse to the Constitution of Papua New Guinea to determine whether the applicant became a citizen of Papua New Guinea on that date. Sections 64 and 65 are the relevant Sections of the Papua New Guinea Constitution and provide as follows:
"64. DUAL CITIZENSHIP
(1)       Notwithstanding 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.
(2)       Subsection (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 Parliament, he renounces his other citizenship and makes the Declaration of Loyalty.
(3)       A 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.
(4)       For 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.
          (See: Citizenship Act (Chapter 12)).
65. AUTOMATRIC CITIZENSHIP ON INDEPENDENCE DAY
(1)       A person born in the country before Independence Day who has two grand-parents who were born in the country or an adjacent area is a citizen.
…..
(4)     Subsections (1) and (2) do not apply to a person who –
(a)has a right (whether revocable or not) to permanent residence in Australia; or
(b)is a naturalized Australian citizen; 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).
….."

The issue then is whether the applicant had a right (whether revocable or not) to permanent residence in Australia. While most Australians would believe that Australian citizenship automatically results in a right to permanent residence, this was not the case with people born in Papua or New Guinea with respect to mainland Australia. The Australian Citizenship Instructions give a useful overview of Government policy at the relevant time on this issue.
Paragraph 1.3.6 of those Instructions is in the following terms:
"In relation to Papua prior to independence:

Papua was a Territory of Australia and was defined as part of Australia under the Australian Citizenship Act 1948, but not under the Migration Act 1958.
People born in Papua acquired Australian citizenship by birth and were issued with Australian passports.
Australian citizenship acquired through birth in Papua did not confer an automatic right to enter or remain in mainland Australia. Right of permanent residence in mainland Australia was automatic for children born in Papua of non-indigenous descent. Those of indigenous descent were required, as a matter of policy determined by Cabinet, to apply for the right of permanent residence in mainland Australia. Government policy gave the Minister the discretion to grant the right of permanent residence to such persons on application if they had been brought up in a European manner, had English as their principal language and were European in outlook."

The Papua New Guinea Constitution recognised a person as being sufficiently indigenous to obtain citizenship of that nation if they had at least two grandparents who were indigenous. As Ms Walsh's mother was indigenous and Ms Walsh was herself born in Papua New Guinea, it must follow that she is indigenous, even though her father was Australian. She did not apply for a grant of permanent residence before 1975, nor did her parents apply on her behalf. As such, she did not have that right and subsection 65(1) of the Papua New Guinea Constitution applies to her. As a result of the application of Regulation 4 of the Papua New Guinea Independence (Australian Citizenship) Regulations 1975, Ms Walsh lost her Australian citizenship on 26 September 1975.
The applicant argued that the Tribunal should not consider the Australian Citizenship Instructions as they were racially discriminatory. Paragraph 1.3.6 does not explain the current standards to be applied but merely alerts decision-makers to the policy which was previously applied.
Although for the purposes of citizenship Papua New Guinea was a part of Australia, it was always an external territory under administration. As such, it was not a part of Australia for all purposes, like a state or the internal territories, and there was always the chance that it would eventually separate from Australia completely. Therefore, the Government decided to retain the distinction between mainland Australians and people who were Australians as a result of being born with an Australian parent in Papua or New Guinea. This was particularly the case when it came to the issue of which country people would be expected to pledge allegiance to upon the independence of Papua New Guinea. People who had come from mainland Australia retained their citizenship as did children who had been born in Papua New Guinea and whose parents both retained their citizenship. However, if a person was indigenous, being born in Papua New Guinea and having at least two grandparents who were born in Papua New Guinea, then it was considered more appropriate by both Governments for them to become Papua New Guinea citizens. Dual citizenship was not an option available.
While some of these people considered themselves to be Australian, an executive decision was made at an international level which determined the rights of the people of Papua New Guinea with respect to citizenship. This Tribunal cannot declare that that decision, taken by both Parliaments, was incorrect or overturn Australian Government policy with respect to the granting of permanent resident status for Papuans pre-1975.
With respect to the final argument advanced by the applicant, namely that citizenship was not lost as a result of the operation of Section 23 of the Australian Citizenship Act, subsection 23(3) can only operate in this case if the applicant's mother lost her citizenship under Sections 17, 18, 19 or 21 of the Act. This is not the case here. As stated above, the loss of citizenship was as a result of Regulation 4 of the Papua New Guinea Independence (Australian Citizenship) Regulations 1975 and Section 65 of the Papua New Guinea Constitution. It was an executive decision at an international level and Section 23 of the Australian Citizenship Act simply does not cover such a scenario. It therefore cannot overcome or defeat in any way the legal consequence of the New Guinea laws as referred to, they being applicable to the exclusion of all other enactments in this applicant's circumstances.
Finally, the applicant's argument that her sister obtained Australian citizenship in 1980 under the same legislation is not of any assistance. While I recognise that the factual situation may have been the same, previous erroneous interpretations of the law cannot provide the basis for a perpetuation of an error in law.
This was quite an unusual case and demonstrated a serious anomaly in the legislation. That a person could be deprived of citizenship rights, without being sufficiently notified that if they wished to retain their citizenship certain steps had to be taken within a specific time-frame, is an injustice which carries a disturbing consequence on any measure of fair treatment to human beings. The Tribunal acknowledges that respective Governments over time have been faced with a very difficult task in formulating legislation to achieve the separation of nationhood. That being said, however, it must also be said that the material placed before me by the Solicitor for the respondent failed to demonstrate any real attempt for these extremely complex legal negotiations and enactments to be explained to the people affected by them.
In this case, the dis-affected person, the applicant, was a mere child. There is not a shred of evidence that anyone in authority made the slightest attempt to explain to her or her parents the complexities of her position or the steps to be taken to enable her to exercise her right to preserve her erstwhile status as an Australian citizen.
The narrow legalistics which bind this Tribunal in this case because they constitute the law of the land, dictate the outcome. The administration of that law in this case affords yet another example of arrogance towards, and contempt for, the ordinary citizen demonstrated over the years by Australia's immigration authorities.
Over the years I have come across many examples of the Department's failure to adequately advise the community at large about fundamental rights and obligations. It is a matter which perhaps warrants consideration on the part of the Department with respect to future policies and attitudes to avoid this being a problem for years to come.
Regrettably, the applicant cannot be registered as an Australian citizen under Section 10C of the Australian Citizenship Act 1948 as she was born within Australia as its then extended territories existed at the time of her birth. She lost her citizenship as a result of the granting of independence to Papua New Guinea in 1975 and obtained Papua New Guinean citizenship at that time. Section 23 of the Act does not apply in this case as the applicant's mother's citizenship was not lost in a manner outlined in that Section. If the applicant wishes to obtain citizenship she will have to apply in the usual way for a grant of citizenship under Section 13 of the Act.
For the above reasons the Tribunal is bound by poorly administered but nonetheless binding law to affirm the decision under review.

I certify that the 26 preceding paragraphs are a true copy of the reasons for the decision herein of Deputy President DP Breen, Presidential Member
Signed:         Emma Oettinger
  Associate
Date/s of Hearing  12.2.01
Date of Decision  8.5.01
Solicitor for the Applicant         Mr S Van Zyl, Messrs Van Zyl Taljaard
Solicitor for the Respondent    Mr P O'Higgins, Messrs Blake Dawson Waldron