Mili and Ors and Minister for Immigration and Citizenship [2011] AATA 57 (4 February 2011)

Last Updated: 4 February 2011

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2011] AATA 57

ADMINISTRATIVE APPEALS TRIBUNAL )

) No 2010/4613

GENERAL ADMINISTRATIVE DIVISION		)
	Re		THERESA MILI

Applicant

And

MINISTER FOR IMMIGRATION AND CITIZENSHIP

Respondent

No 2010/4614

Re

GEORGE TANNA

Applicant

And

MINISTER FOR IMMIGRATION AND CITIZENSHIP

Respondent

No 2010/4615

Re

JOHN DAWANINCURA

Applicant

And

MINISTER FOR IMMIGRATION AND CITIZENSHIP

Respondent

No 2010/4616

Re

HENRY DAWANINCURA

Applicant

And

MINISTER FOR IMMIGRATION AND CITIZENSHIP

Respondent

No 2010/4618

Re

ARCHIE (NEVILLE) CHAPMAN

Applicant

And

MINISTER FOR IMMIGRATION AND CITIZENSHIP

Respondent

DECISION

Tribunal

Deputy President P E Hack SC

Date 4 February 2011

Place Brisbane

Decision

The Tribunal refuses each application for an extension of time.

...................[Sgd].................
Deputy President

CATCHWORDS

IMMIGRATION & CITIZENSHIP – Citizenship - Applicants born in Papua New Guinea prior to Independence – Resumption of Australian Citizenship status.

PRACTICE & PRODEDURE – Extension of time – Lack of utility as bound to fail – Extension of time refused.

Australian Citizenship Act 1997 (Cth) s 29

Minister for Immigration v Walsh [2002] FCAFC 205; (2002) 125 FCR 31

REASONS FOR DECISION

4 February 2011

Deputy President P E Hack SC

1. There are before the Tribunal applications from, or on behalf of, five residents of Papua New Guinea in which an extension of time is sought to review decisions by the respondent, the Minister for Immigration and Citizenship, refusing applications to renew Australian citizenship.
2. The applications raise common issues and were heard together. Given that I am of the view that each application ought to be refused for similar reasons, it is convenient to do so in a single set of reasons.
3. The starting point is s 29 of the Australian Citizenship Act 2007 (Cth). It provides, so far as is presently material:

(2) A person is eligible to become an Australian citizen again under this Subdivision if:
(a) the person ceased to be an Australian citizen under:
(i) section 33 (about renunciation) in order to acquire or retain the nationality or citizenship of a foreign country or to avoid suffering significant hardship or detriment; or
(ii) section 36 (about children); and
(b) if the person is aged 18 or over at the time the person made the application—the Minister is satisfied that the person is of good character at the time of the Minister’s decision on the application.
Note 1: See also section 32 (which is about persons resuming their former citizenship status).
Note 2: A person who ceases to be an Australian citizen under section 34 or 35 may apply to become an Australian citizen again under Subdivision A, AA or B.
(3) A person is eligible to become an Australian citizen again under this Subdivision if:
(a) the person ceased to be an Australian citizen under:
(i) section 17 (about dual citizenship) of the old Act; or
(ii) section 18 (about renunciation) of the old Act in order to acquire or retain the nationality or citizenship of a foreign country or to avoid suffering significant hardship or detriment; or
(iii) section 20 (about residence outside Australia) of the old Act; or
(iv) section 23 (about children) of the old Act; and

(b) if the person is aged 18 or over at the time the person made the application—the Minister is satisfied that the person is of good character at the time of the Minister’s decision on the application.

Where an application is made under s 29, the Minister must approve, or refuse to approve, the applicant becoming an Australian citizen again. The Minister must not approve the person becoming a citizen again unless the person is eligible under s 29(2) or s 29(3) of the Act.

4. A decision to refuse to approve resumption of citizenship may be reviewed in the Tribunal.
5. The applicant in 2010/4613, Ms Theresa Mili, was born in March 1956 in what was then Papua. Papua was recognised as part of Australia in s 5 of the Nationality and Citizenship Act 1950 (Cth). By virtue of s 10(1) of that Act Ms Mili thus acquired the status of Australian citizenship by birth. On 16 September 1975 Papua became part of the independent nation of Papua New Guinea. It ceased being a Territory of Australia by virtue of s 4 of the Papua New Guinea Independence Act 1975 (Cth).
6. In June 2009 Ms Mili lodged an application to resume Australian citizenship. That application was refused, and Ms Mili notified in writing of the decision by letter dated 26 March 2010. On 26 October 2010, about six months outside the ordinary time limit, Ms Mili made the present application for an extension of time within which to seek a review of the refusal decision.
7. The position is generally similar in the case of the other applicants.
8. Mr George Tanna (2010/4614) was born in Papua in November 1964. He made an application to resume Australian citizenship in May 2008. The application was refused, and Mr Tanna was notified of that decision by letter dated 8 April 2009. This application was made about 18 months outside the time limit for applications to review.
9. Mr John Dawanincura (2010/4615) was born in Papua in June 1972. His application for resumption of citizenship was lodged on 26 November 2009 and refused on 26 May 2010. His application for an extension of time was lodged approximately three months out of time.
10. Mr Henry Dawanincura (2010/4616) was born in Papua in September 1974. He applied for resumption of citizenship on 26 November 2009; it was refused on 26 May 2010. His application for an extension of time was lodged on 3 October 2010, some three months out of time.
11. The final application was made on behalf of Mr Archie Chapman (2010/4618). It differed from the other applications only because, at the time of the application for an extension of time, Mr Chapman was deceased, having died in June 2009 shortly after he lodged an application for resumption of citizenship. Accordingly, it cannot be said that Mr Chapman is a person “whose interests are affected”[1] by the decision sought to be reviewed. For that reason alone I would refuse the application made in Mr Chapman’s name although I note that it lacks underlying merit for reasons that follow.
12. It is unnecessary to consider the factors that might otherwise arise for consideration in an application to extend time. These applications can be disposed of on the basis that they are bound to fail and it would be a perverse exercise of discretion to extend time in the case of an application that was bound to fail.
13. Each of the applicants was a citizen of Australia by birth immediately prior to Independence Day in Papua New Guinea. However that citizenship was terminated on Independence Day for the reasons explained in this way by the Full Court in Minister for Immigration v Walsh[2]:

“7 On 16 September 1975 (Independence Day) Papua became part of the independent nation of Papua New Guinea (PNG). It ceased to be a Territory of Australia: s 4 of the Papua New Guinea Independence Act 1975 (Cth) (the Independence Act).

8. Section 65 of the Constitution of PNG provided (relevantly):

‘(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).’

9. Plainly, a significant proportion of the population of Papua at the time would have comprised persons who were born in Papua and were thus Australian citizens by birth. The clear intention of s 65 was that such persons would (generally) become PNG citizens. Only those who had some further attachment to Australia (that is, those who had a right to permanent residence, who had become naturalised, or had become registered under s 11) were, like citizens of other countries, not to become PNG citizens automatically.
   10. Section 65 was mirrored by regulations that were made under s 6 of the Independence Act. Section 6 empowered the Governor-General to make regulations “making provision for or in relation to matters arising out of or connected with the attainment of the independence of Papua New Guinea, including regulations making modifications or adaptations of any Act''.
   11. Regulation 4 of the Papua New Guinea Independence (Australian Citizenship) Regulations 1975 (Cth) (the Independence Regulations) made under s 6 of the Independence Act, provided:

‘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.’'

12. The effect of reg 4, read with s 65 of the PNG Constitution, was to terminate the Australian citizenship of those born in Papua whose sole claim to Australian citizenship was their place of birth. It preserved the citizenship of those who had a further, or a different, connection with Australia (unless they renounced their citizenship).”
    
14. As that extract indicates, citizenship was preserved in some circumstances; however I do not understand any of the present applicants to contend that any of those circumstances are present.
15. It follows that none of the applicants ceased to be Australian citizens under any of the circumstances set out in s 29(2) and (3) of the Australian Citizenship Act and thus none of them are eligible to resume Australian citizenship.
16. Mr Tabua, who represented the applicants (except Mr Chapman) lodged lengthy submissions. Reference is made in those submissions to other persons, said to be similar to the present applicants, who were successful in regaining Australian citizenship. It is enough to dispose of the argument to say that I am concerned with the circumstances of the present applicants and whether they satisfy the statutory criteria. The submissions develop, at some length, a contention that the legislation of Papua New Guinea and Australia had operated in a way that is unfair to persons of “non-indigenous descent”. I need not decide whether that is right or not; it is sufficient to say that I am bound to give effect to the legislation and the conclusions of the Federal Court about the consequences of the legislation even if the consequences operate in an unfair way.
17. I would then refuse each application for an extension of time.
    

I certify that the 17 preceding paragraphs are a true copy of the reasons for the decision herein of Deputy President P E Hack SC

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

Alex Seagar, Associate

Date/s of Hearing 22 December 2010

Date of Decision 4 February 2011

Counsel for the Applicant Mr M Tabua

Solicitor for the Respondent Clayton Utz

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[1] See s 27 Administrative Appeals Tribunal Act 1975 (Cth)

[2] [2002] FCAFC 205; (2002) 125 FCR 31 at [7]- [12]