Uta and Minister for Immigration and Citizenship [2011] AATA 29 (25 January 2011)

Last Updated: 1 March 2011

Administrative Appeals Tribunal

ADMINISTRATIVE APPEALS TRIBUNAL )
) No: 2010/2746
GENERAL ADMINISTRATIVE DIVISION )

Re: Uta Isaia Uta
Applicant

And: Minister for Immigration and Citizenship
Respondent

CORRIGENDUM

TRIBUNAL: Honourable Dr B H McPherson CBE Deputy President

DATE: 9 February 2011

PLACE: Brisbane

The Tribunal directs the Registrar, pursuant to subsection 43AA(1) of the Administrative Appeals Tribunal Act 1975, to alter the text of the decision in this application by deleting the reference to ‘1 September 1976’ in paragraph 10 and replacing it with the date ‘16 September 1975’.

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Deputy President

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2011] AATA 29

ADMINISTRATIVE APPEALS TRIBUNAL )

) No 2010/2746

GENERAL ADMINISTRATIVE DIVISION		)
	Re		UTA ISAIA UTA

Applicant

And

MINISTER FOR IMMIGRATION AND CITIZENSHIP

Respondent

DECISION

Tribunal

Honourable Dr B H McPherson CBE Deputy President

Date 25 January 2011

Place Brisbane

Decision

The Tribunal: (i) Determines that the preliminary question before the Tribunal must be answered in the negative; and (ii) Affirms the decision under review.

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Deputy President

CATCHWORDS

IMMIGRATION AND CITIZENSHIP – Citizenship – Application to become Australian citizen on basis of parents’ citizenship status – Samoan cultural adoption - Meaning of ‘Parent’ – Persons born in Papua in 1901 British subjects – Parent not Australian citizen – Decision under review affirmed
Australian Citizenship Act 2007 s 16

Minister for Immigration and Multicultural and Indigenous Affairs v Walsh [2002] FCAFC 205; (2002) 189 ALR 694
Gavin Gibson & Co Limited v Gibson [1913] 3 KB 379
Coleman Shang [1961] AC 481
Hudson v Minister for Immigration and Citizenship [2010] FCAFC 119

REASONS FOR DECISION

Deputy President McPherson

1. The applicant is Uta Isaia Uta (“junior”). His maternal grandfather was also named Uta Isaia Uta (“senior”). Mr Uta junior was born in Samoa on 24 August 1971. Section 16(1) of the Australian Citizenship Act 2007 provides for an application to the Minister to become an Australian citizen. Section 16(2) of the Act says:

“(2) A person born outside Australia on or after 26 January 1949 is eligible to become an Australian citizen if:
(a) a parent of the person was an Australian citizen at the time of the birth;...”

2. In Hudson v Minister for Immigration and Citizenship[1] the Full Court of the Federal Court held that the word “parent” in s 16(2)(a) is not restricted in its meaning to a biological parent, but includes someone capable of being considered a parent for some other reason. In the present case Mr Uta junior claims that Mr Uta senior is his parent by virtue of the applicant having been adopted at the time or in anticipation of his birth in 1971. The adoption is said to have taken place in accordance with Samoan customary laws. Whether an adoption under Samoan customary law, (which may be valid and effective under Samoan law) would be recognised under Australian law, is a question that may not fall to be decided simply or strictly according to ordinary Australian concepts of who is a parent. In Coleman Shang[2], the word “wife’ or “widow’ in the Statue of Distribution 1670 was held to be capable of including a woman married according to African custom, which recognised polygamy.
3. Several written statements or affidavits have been supplied to the Tribunal from persons conversant with Samoan law that affirm the sufficiency of an adoption carried out according to Samoan customary law.
4. However it has been agreed by the parties to these proceedings, as has been directed by the Registrar, that the questions of efficacy of the applicant’s adoption to constitute the relationship of parent and child is to be deferred until after determination of a preliminary question has been decided in these proceedings. That preliminary question is whether Mr Uta senior was an Australian citizen by birth.
5. Mr Uta senior was born on 1 August 1901 in what was then the British possession of British New Guinea which in 1907 became the Australian territory of Papua. A brief history of the area, which is the south eastern corner of the Island of New Guinea, is that in about 1886, it was declared a British Protectorate and in the following year it became a colony or possession of British Territory by virtue of an order in Council made in London under the British Settlements Act 1887. This action was taken in the expectation and anticipation of the establishment in 1901 of the Commonwealth of Australia, which by the Papua Act 1905, s 5, accepted the transfer to it by Great Britain of the territory of Papua.
6. This involved, strictly speaking, no transfer of sovereignty over the territory because both Australia and Great Britain were then within the dominions of the [British] Crown.
7. The result was, according to legal theory at that “time”, that all persons born in Papua after 1905 were British subjects, as were all persons born in Australia after Federation in 1901. In this regard no distinction was made according to whether a person was born in any particular part of the British dominions rather than any other.
8. There was at that time no such thing as citizenship of a particular part of the British Empire. All of those who were born anywhere within British territories were British subjects, owning allegiance to a single sovereign or king[3].
9. The concept of a local or Australian citizenship was not introduced until the Nationality and Citizenship Act 1948 (“the Act of 1948”) which came into force on 26 February 1950. In order for the applicant to maintain a right to Australian citizenship, Mr Uta junior must establish that, although himself born in Samoa in 1971, Mr Uta senior was born in Australia in 1901. In 1950 at the time when the Act of 1948 commenced, the word “Australian” was defined in s 5 of the Act as including Papua.
10. So matters remained until 1 September 1976, when Papua, in union with the territory of New Guinea, became a single independent nation.
11. At the time of his birth in August 1901, Mr Uta senior was not a citizen of Australia. Given that Australian citizenship was in law a concept that was not recognised until 26 January 1950, there is no means by which Mr Uta senior could have attained the status of Australian citizen at his birth in 1901.
12. There is also no means by which his birth in 1901 in Papua, which was not recognised as being “Australian” territory until at least 1950 (when the 1948 Act came into force) can be retrospectively considered as having invested him with Australian citizenship in 1950 or thereafter.
13. The question was specifically considered and disposed of by the Full Court of the Federal Court, whose decision is binding on this Tribunal and whose reasoning I am bound to follow, in Minister for Immigration and Multicultural and Indigenous Affairs v Walsh[4], where their Honours said:

“Whether a child is born inside or outside Australia is a matter to be determined at the time of birth of the child, and specific legislative provision apart, subsequent changes in the geographic boundaries of “Australia” do not have a retrospective impact upon whether a child was born in or outside “Australia[5]”.

14. If follows that because Papua, where Mr Uta senior was born, was not part of Australia when he was born there in 1901, subsequent changes in the geographic boundaries of “Australian” territory any time after 1901, so as to include Papua in Australia, did not have a retrospective impact on the place of his birth or on his nationality or citizenship.
15. It follows that Mr Uta junior is unable in law to claim Australian citizenship by virtue of Mr Uta seniors’ birth in Papua, (or, as it was known then, British New Guinea) in August 1901.
16. The decision of the Ministers’ Delegate must therefore be affirmed and the application to reverse that decision must be refused. The applicant has complained that the effect of the foregoing change is that Mr Uta senior was or would have been rendered a “stateless” person. But that is not correct. He was born and at his death remained a British subject. Nothing happened to take that status away from him.
    

I certify that the 16 preceding paragraphs are a true copy of the reasons for the decision herein of Honourable Dr B H McPherson CBE Deputy President

Signed: .............[Sgd]................................................................

Associate

Date of Hearing 26 November 2010

Date of Decision 25 January 2011

Applicant’s representative: Assisted by Isaia Uta

Counsel for the Respondent Will Sharpe, Clayton Utz

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[1] [2010] FCAFC 119
[2] [1961] AC 481
[3] Gavin Gibson & Co Limited v Gibson [1913] 3 KB 379 at 389
[4] (2002) 189 ALR 694
[5] Ibid at 704-705