English and Minister for Immigration and Citizenship [2011] AATA 81 (11 February 2011)

Last Updated: 14 February 2011

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2011] AATA 81

ADMINISTRATIVE APPEALS TRIBUNAL )

) No 2010/4372

GENERAL ADMINISTRATIVE DIVISION		)
	Re		CHRISTINE ENGLISH

Applicant

And

MINISTER FOR IMMIGRATION AND CITIZENSHIP

Respondent

DECISION

Tribunal

Dr P McDermott, RFD, Senior Member

Date 11 February 2011

Place Brisbane

Decision

The Tribunal affirms the decision under review.

..............................................
Senior Member

CATCHWORDS

IMMIGRATION AND CITIZENSHIP – Citizenship – Application to re-acquire Australian citizenship – Applicant born in Papua prior to independence – Citizenship of Australia ceased upon independence of Papua – Requirement for applicant to be born outside Australia – Applicant not born outside Australia for purposes of citizenship application – Decision under review affirmed

Australian Citizenship Act 2007 (Cth) ss 3, 16(2), 21(7), 52(1)(a)

Australian Citizenship Act 1948 (Cth) ss 5, 10(1)

Constitution of the Independent State of Papua New Guinea s 65

Migration Act 1958 (Cth)

Papua New Guinea Independence Act 1975 (Cth)

Papua New Guinea Independence (Australian Citizenship) Regulations 1975 (Cth), Regulation 4

Papua New Guinea Independence (Australian Citizenship of Young Persons) Regulations 1980 (Cth), Regulation 2

Air Caledonie International v Commonwealth [1988] HCA 61; (1988) 165 CLR 462

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

Re Minister for Immigration and Multicultural and Indigenous Affairs, Ex parte Ame [2005] HCA 36; (2005) 222 CLR 439

Re Gaigo and Minister for Immigration and Citizenship [2008] AATA 590

Uta and Minister for Immigration and Citizenship [2011] AATA 29

REASONS FOR DECISION

11 February 2011

Dr P McDermott, RFD, Senior Member

INTRODUCTION

1. Ms Christine English, who has previously held Australian citizenship, has made an application to become an Australian citizen by descent. On 28 September 2010, Ms English was advised that her application was refused by a delegate of the Minister. Ms English now seeks a review of that decision by this Tribunal which has jurisdiction to review the decision under s 52(1)(a) of the Australian Citizenship Act 2007 (Cth).
2. In considering this application, I have been greatly assisted by the reasons for decision of a Deputy President of this Tribunal who has examined the relevant issues which arise in a case such as this application, including the significance of the Papua New Guinea Independence Act 1975 (Cth) [1]as well as the construction of s 16(2) of the Australian Citizenship Act 2007 (Cth).[2]

PROCEDURAL MATTERS

3. At the commencement of the hearing, the representative of Ms English informed this Tribunal that Ms English, who resides in Papua New Guinea and who was expected to give evidence by telephone, was unavailable for the hearing. This Tribunal had not before the hearing been advised of the unavailability of Ms English. The representative of the respondent, who had travelled from Canberra to attend the hearing in Brisbane, had no prior knowledge of the unavailability of Ms English. Having regard to the direction of the President that there has to be good reasons for there to be an adjournment of the hearing[3] as well as the statutory obligation of this Tribunal to proceed “quickly”,[4] I was reluctant to adjourn the hearing of the application. Instead, I directed the Tribunal attendant to telephone Ms English in Papua New Guinea. Fortunately she answered the telephone call and was available to give evidence by telephone. The representative of Ms English, who may have been unprepared to make final submissions at the hearing, was given the opportunity to make submissions to this Tribunal after the hearing.

BACKGROUND

4. Ms English was born in 1973[5] in the Territory of Papua which was then defined to be part of Australia. At the time of her birth s 5(1) of the Australian Citizenship Act 1948 (Cth) provided that “‘Australia’ includes the Territories of the Commonwealth that are not trust territories”.[6] Ms English was an Australian citizen by birth. This is because s 10(1) of the Australian Citizenship Act 1948 (Cth) provided that a person born in Australia after the commencement of that Act became an Australian citizen by birth. There are some exceptions to s 10(1) which have no application to Ms English.

EFFECT OF INDEPENDENCE

5. The Constitution of the Independent State of Papua New Guinea, in s 65(1), provided that a person born in the country before Independence Day (16 September 1975) who had two grandparents who were born in the country or an adjacent area gained automatic citizenship of the new State of Papua New Guinea. Ms English confirmed when giving evidence that she had two grandparents who were born in Papua New Guinea.
6. Section 65(1) of the Constitution of the Independent State of Papua New Guinea, was, by s 65(4) of that Constitution, expressed not to apply to someone who had a right (whether revocable or not) to permanent residence in Australia, or to a person who is a naturalized Australian citizen, or is registered as an Australian citizen under s 11 of the Australian Citizenship Act 1948-1975 (Cth), or a person who is a citizen of another country other than Australia.
7. I am satisfied that s 65(4) of the Constitution of the Independent State of Papua New Guinea had no application to Ms English. Ms English confirmed in giving evidence that she did not have a right of permanent residence in Australia. Indeed, prior to Independence Day, her status as an Australian citizen did not give her the right to enter and remain on the Australian mainland[7]. It was only some years after Independence Day, in 1984, that Australian citizens finally had the right to reside in Australia.[8]
8. However, her father (A A English) who was born in Papua in 1953 did have a right of permanent residence in Australia. Her father still remains an Australian citizen[9] and resides on the Australian mainland. Ms English also confirmed in giving evidence that her father, who separated from her mother when she was young, did not list her on his migration entry papers as a dependent with his other children. Ms English in giving evidence stated that the reason why she was not listed as a dependent was out of respect for her grandparents. Ms English was raised by her grandparents.
9. I find that Ms English became a citizen of the Independent State of Papua New Guinea on Independence Day by the operation of s 65(1) of the Constitution of the Independent State of Papua New Guinea. This is because she satisfies the requirements for the operation of s 65(1) by being born in the Independent State of Papua New Guinea before Independence Day as well as having two grandparents who were born in that country. I also find that the exception in s 65(4) of the Constitution of the Independent State of Papua New Guinea had no application to Ms English.

CESSATION OF AUSTRALIAN CITIZENSHIP

10. When Ms English became a citizen of the Independent State of Papua New Guinea on Independence Day, she also ceased by operation of Australian law to be an Australian citizen. This cessation of Australian citizenship occurred by virtue of the operation of regulation 4 of the Papua New Guinea Independence (Australian Citizenship) Regulations 1975 (Cth), in conjunction with s 65 of the Constitution of the Independent State of Papua New Guinea.[10] This regulation applies to Ms English who immediately before Independence Day was an Australian citizen; and who on that day became a citizen of the Independent State of Papua New Guinea under the provisions of the Constitution of the Independent State of Papua New Guinea. The regulation provides that such a person ceases on Independence Day to be an Australian citizen. The validity of this regulation was upheld by the High Court of Australia in Re Minister for Immigration and Multicultural and Indigenous Affairs, Ex parte Ame.[11]

PAPUA NEW GUINEA INDEPENDENCE (AUSTRALIAN CITIZENSHIP OF YOUNG PERSONS) REGULATIONS 1980

11. On Independence Day Ms English was under the age of 19 years. This raises for consideration the application of regulation 2 of the Papua New Guinea Independence (Australian Citizenship of Young Persons) Regulations 1980 (Cth). In Minister for Immigration and Multicultural Affairs and Indigenous Affairs v Walsh[12] (“Walsh”) it was held that regulation 2 only has application to a young person who on Independence Day had a right of permanent residence in Australia.
12. Prior to Independence Day, Ms English would have required a permanent or temporary entry permit under the Migration Act 1958 (Cth) to enter the mainland of Australia.[13] I earlier mentioned that Ms English in giving evidence stated that she did not have such a right of residence in Australia.
13. In Re Minister for Immigration and Multicultural and Indigenous Affairs, Ex parte Ame[14], the High Court of Australia rejected a submission that as a matter of constitutional principle, an Australian citizen had a right of permanent residence in Australia. This has the consequence that on Independence Day when Ms English last held Australian citizenship, that citizenship did not give her the right to enter or reside on the Australian mainland.[15]
14. As Ms English did not on Independence Day have a right of permanent residence in Australia, regulation 2 has no application to her case.

AUSTRALIAN CITIZENSHIP ACT 2007

15. A submission was made on behalf of Ms English that the Independence of Papua New Guinea should not “impact the birth right of the applicant”. However, the birthright doctrine, which has limitations, is generally concerned with the rights of British subjects.[16] The High Court of Australia has confirmed that Australian citizenship has a statutory status. Australian legislation has introduced the concept of Australian citizenship and prescribes the method of its application and loss.[17] It is by the operation the Australian Citizenship Act 2007 (Cth) that the application of Ms English has now to be determined.
16. On 19 August 2010, Ms English lodged an application for Australian citizenship by descent. This application is made under s 16(2) of the Australian Citizenship Act 2007 (Cth).
17. In order for Ms English to be able to make an application under s 16(2), she has to be a “person born outside of Australia on or after 26 January 1949”. At the hearing of the application, one issue that arose for consideration was whether having regard to the definition of “Australia” in s 3 of the Australian Citizenship Act 2007 (Cth) Ms English could have been regarded as being born outside of Australia. The respondent sought leave, which was granted, to make supplementary submissions as to the construction of s 16(2) of the Australian Citizenship Act 2007 Cth).
18. The respondent has relied upon Walsh[18], in which the Full Court of the Federal Court of Australia remarked: “Whether a child is born inside or outside Australia is a matter to be determined at the time of the birth of that child”.[19] In Federal Commissioner of Taxation v Salenger[20] French J remarked: “Ordinarily, senior members of the Tribunal should apply the law as stated by judges of this court”. I do not regard the Australian Citizenship Act 2007 (Cth) as displacing these considered remarks of the Full Court.
19. Indeed, the only respect that the 2007 Act overrides the operation of regulation 4 of the Papua New Guinea Independence (Australian Citizenship) Regulations 1975 (Cth) is under s 21(7) of the Australian Citizenship Act 2007 (Cth)[21]. That subsection applies where “a person was born in Papua before 16 September 1975” (as is the case of Ms English): however, that provision only extends to where “a parent of the person was born in Australia (within the meaning of this Act at the time the person made the application)”. At the time of Ms English’s application in August 2010 ‘Australia’ under the Australian Citizenship Act 2007 (Cth) meant Australia and its external Territories[22]. Despite being an Australian citizen, Ms English’s father was born in Papua (as was her mother)[23]. Papua ceased to be a Territory of Australia on 16 September 1975. Therefore, this subsection has no application to Ms English.
20. Recently, it has been decided at a presidential level of this Tribunal that those observations of the Full Federal Court of Australia[24] are still binding and applicable to the construction of s 16(2)[25]. I respectfully follow that decision.
21. As Papua was part of Australia at the time that Ms English was born I consider that she is unable to satisfy s 16(2)(a) of the Australian Citizenship Act 2007 (Cth) and her application for that reason cannot succeed.
22. I might add that in Walsh[26], the Full Court stated that it is open for regulations to be made under the Papua and New Guinea Independence Act 1975 (Cth) to provide for the acquisition of Australian citizenship by descent of persons born in Papua prior to Independence Day.[27] One suggestion that the Full Court made was that a regulation could provide that “persons born in Papua prior to Independence Day are taken to have been born outside Australia”.[28] However, that course of action has not been adopted by the Government.

DECISION

23. I affirm the decision under review.
    

I certify that the 23 preceding paragraphs are a true copy of the reasons for the decision herein of Dr P McDermott, RFD, Senior Member

Signed: .....................................................................................

Danielle Armstrong, Research Associate

Date/s of Hearing 25 November 2010

Date of final submissions 17 December 2010

Date of Decision 11 February 2011

The applicant was represented by Mr Raymond Dunbar, Global Migration

Solicitor for the Respondent was Ms Alice Linacre, Clayton Utz

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[1] Re Gaigo and Minister for Immigration and Citizenship [2008] AATA 590.
[2] Uta and Minister for Immigration and Citizenship [2011] AATA 29.
[3] Administrative Appeals Tribunal Listing and Adjournment Practice Direction, 19 April 2005, paragraph 4.
[4] Administrative Appeals Tribunal Act 1975 (Cth) s 2A.
[5] In these reasons, which are a matter of public record, it is not necessary for me to specify her day and month of birth.
[6] This definition was inserted into the then Nationality and Citizenship Act 1948-52 (Cth) by s 2 of the Nationality and Citizenship Act 1953 (Cth).
[7] Minister for Immigration and Multicultural Affairs and Indigenous Affairs v Walsh [2002] FCAFC 205; (2002) 125 FCR 31 at [37].
[8] Air Caledonie International v Commonwealth [1988] HCA 61; (1988) 165 CLR 462 at 469.
[9] T-Document 4, Folio 20.
[10] Minister for Immigration and Multicultural Affairs and Indigenous Affairs v Walsh [2002] FCAFC 205; (2002) 125 FCR 31 at 35 at [12].
[11] [2005] HCA 36; (2005) 222 CLR 439.
[12] [2002] FCAFC 205; (2002) 125 FCR 31 at 39 at [35].
[13] Minister for Immigration and Multicultural Affairs and Indigenous Affairs v Walsh [2002] FCAFC 205; (2002) 125 FCR 31 at 35 – 36 at [15] – [21], cited in Re Minister for Immigration and Multicultural and Indigenous Affairs, Ex parte Ame [2005] HCA 36; (2005) 222 CLR 439 at 445.
[14] [2005] HCA 36; (2005) 222 CLR 439.
[15] Goldring J, The Constitution of Papua New Guinea: a study in legal nationalism (Lawbook Co, 1978) p 204.
[16] The birthright doctrine is extensively considered in B.H. McPherson, Reception of English Law Abroad (Supreme Court of Queensland Library, 2007).
[17] Minister for Immigration and Multicultural Affairs and Indigenous Affairs v Walsh [2002] FCAFC 205; (2002) 125 FCR 31 at 33 at [1].
[18] [2002] FCAFC 205; (2002) 125 FCR 31.
[19] [2002] FCAFC 205; (2002) 125 FCR 31 at 43 at [52].
[20] (1988) 19 FCR 378; (1988) 81 ALR 25 at 34.
[21] Australian Citizenship Bill 2005 (Cth), Explanatory Memorandum, pp 24 – 25.
[22] Australian Citizenship Act 2007 (Cth) s 3.
[23] T-Document 9, Folios 13 and 14.
[24] Minister for Immigration and Multicultural Affairs and Indigenous Affairs v Walsh [2002] FCAFC 205; (2002) 125 FCR 31 at 43 at [52].
[25] Uta and Minister for Immigration and Citizenship [2011] AATA 29 at [13].
[26] [2002] FCAFC 205; (2002) 125 FCR 31.
[27] Minister for Immigration and Multicultural Affairs and Indigenous Affairs v Walsh [2002] FCAFC 205 (2002) 125 FCR 31 at 44 at [56].
[28] [2002] FCAFC 205; (2002) 125 FCR 31 at 44 at [56].