Consideration
65 The issue is whether, within s 65(4)(a) of the PNG Constitution, the applicant had "a right…to permanent residence in Australia" at Independence Day. If he did, s 65(1) did not apply to him and he did not become a PNG citizen and, accordingly, did not cease to have Australian citizenship.
66 In Ame at [22] and Walsh at [15] it was held that s 65(4)(a) refers to a right of permanent residence in mainland Australia, not an Australian territory.
67 In Walsh, the Full Court held at [16] that whether a person had a right to permanent residence in Australia is to be determined by reference to the Migration Act as it stood at Independence Day. Section 6(1) of the Migration Act provided that:
An immigrant who, not being the holder of an entry permit that is in force, enters Australia thereupon becomes a prohibited immigrant.
68 An "entry permit" was defined to mean an entry permit issued under s 6 of the Migration Act. An entry permit could be temporary or permanent. Section 18 provided that a prohibited immigrant was liable to deportation.
69 Critically, "Australia" was not defined under the Migration Act, and took its meaning from s 17(a) of the Acts Interpretation Act 1901 (Cth), which specifically excluded external territories. In Walsh, the Full Court held at [19] that at Independence Day, the regulation of entry into Australia was not based on citizenship, but on whether a person was an "immigrant". That was confirmed in Ame, where the High Court held at [23] that the right to permanent residence referred to in s 65(4)(a) of the PNG Constitution was a right a small number of Papuans had received by grant, not a right which all Papuans had by virtue of their birth in Papua.
70 The term "immigrant" was defined in s 5(1) of the Migration Act to include:
…a person intending to enter, or who has entered Australia for a temporary stay only, where he would be an immigrant if he intended to enter, or had entered, Australia for the purpose of staying permanently.
71 In Walsh, the Full Court observed at [19] that this definition assumed an underlying concept of an "immigrant" as a person whose home was outside Australia and who entered or was seeking to enter Australia. The Full Court continued at [19]:
Possession of Australian citizenship may be an important factor in determining whether a person has become absorbed in the Australian community, and thus outside the immigration power, but it may not be decisive. An Australian national may, in some circumstances, enter Australia as an immigrant and regulation of such entry is within the constitutional competence of the Commonwealth Parliament.
(Citation omitted).
72 In Walsh, the respondent's father was a permanent Australian resident and the respondent was an Australian citizen by virtue of her birth in Papua. The respondent was five years old at Independence Day and had lived all her life in Papua. The Full Court held that had she sought to enter Australia at Independence Day, she would have been an "immigrant" and would have required an entry permit. Therefore, she did not have a right to permanent residence in Australia by virtue of her Australian citizenship.
73 In Walsh, the Full Court cited Potter v Minahan (1908) 7 CLR 277. In that case, the High Court considered whether the respondent, who had left Australia for China at the age of five and returned 26 years later, was an immigrant. Justice Barton considered it relevant to ask, "Where is his home?". His Honour answered the question by concluding that the respondent had not made China his home and his return to Australia was the fulfilment of his desire and intention. Justice O'Connor considered that "immigrant", in its ordinary meaning, implies leaving an old home in one country to settle in a new home in another country, with a more or less defined intention of staying there permanently or for a considerable time. Justice Issacs held at 308-309:
The ultimate fact to be reached as a test whether a given person is an immigrant or not is whether he is or is not at that time a constituent part of the community known as the Australian people.
Nationality and domicil are not the tests; they are evidentiary facts of more or less weight in the circumstances, but they are not the ultimate or decisive considerations.
…
There is not, in my opinion, any proper test but this practical one, viz., whether the whole of the facts show that at the moment of entry the person desiring to be admitted is fairly to be considered as one of the people of the Commonwealth, and whether, notwithstanding any personal absence from Australia, he can justly and in substance claim to regard this country as a place of habitation or general residence which he had never abandoned.
74 In Donohoe v Wong Sau (1925) 36 CLR 404 at 408, Issacs J confirmed:
I regard the test as being whether the person is a constituent part of the Australian community. If that question is answered in the affirmative, this is that person's real home in the relevant sense; if it is answered in the negative, it is not his real home in the relevant sense whatever it may be in the sense of domicil.
(Emphasis in the original).
75 In R v Macfarlane; Ex Parte O'Flanagan (1923) 32 CLR 518 at 580, Starke J held:
The entry into the Commonwealth of a person who at the moment of entering is already one of the people of Australia could hardly be described as an immigration into the Commonwealth: it would in truth be the return of an Australian to his homeland. And so this Court has decided. Whether any given person is one of the people of Australia is necessarily a question of fact. I agree, however, with the observation of my brother Issacs in Potter's Case, and am of the opinion that neither locality of birth nor nationality nor domicile is a decisive test, but simply an evidentiary fact, of more or less weight according to the circumstances of the particular case.
(Citations omitted).
76 The critical question is whether the applicant would or would not have been an "immigrant" within s 6(1) of the Migration Act had he sought to enter mainland Australia at Independence Day. The test has been described in various ways in the cases I have cited, such as whether the person was a constituent part of the Australian community, whether the person was absorbed into the Australian community and whether the person's real home was Australia. In my opinion, the concepts underlying these descriptions include whether the person regards Australia as their home and whether the Australian community would regard Australia as being the person's home. It is necessary to have regard to all the relevant circumstances, including the person's citizenship, place of birth, domicile and intentions. The question is factual and the test is a practical one.
77 Like the respondent in Walsh, the applicant had never been to mainland Australia and had lived his whole life in Papua before Independence Day. The applicant argues, however, that these matters are not decisive. The applicant submits, firstly, that his mother was not an "immigrant" and her status should be attributed to him; secondly, he was not an "immigrant" as he was a part of the Australian community in his own right; and thirdly, even if they were "immigrants", his mother had a passport (in which he was named), which was an entry permit giving them the right to reside permanently in Australia.
78 It is convenient to begin with the submission that the applicant's mother's passport was an entry permit for the purposes of s 6(1) of the Migration Act. The applicant's mother became an Australian citizen on 20 December 1973. She was issued with an Australian passport on 7 May 1974, pursuant to s 7(1) of the Passports Act 1938 (Cth). She used the passport to travel to the Australian mainland on 5 July 1974 and 31 October 1975. The applicant's name was included in the passport by the time they travelled together on 31 October 1975. That passport is not in evidence, having been surrendered in the 1970s when she obtained a new passport.
79 In Minister for Immigration and Ethnic Affairs v Petrovski (1997) 73 FCR 303 at 307, Burchett J described the purposes of a passport as follows:
At common law, the issue of a passport is an exercise of the royal prerogative by which the protection of the Crown is extended to the citizen who travels abroad: Halsbury's Laws of England (4th ed), Vol 18, par 1412. Lord Alverstone CJ described a passport in R v Brailsford [1905] 2 KB 730 at 745 as "a document issued in the name of the Sovereign on the responsibility of a Minister of the Crown to a named individual, intended to be presented to the Governments of foreign nations and to be used for that individual's protection as a British subject in foreign countries". In Australia, the issue of passports is regulated by the Passports Act, but their nature remains unchanged.
80 This description is consistent with the notation on Australian passports that:
The Governor-General of the Commonwealth of Australia, being the representative in Australia of Her Majesty Queen Elizabeth the Second, requests all those whom it may concern to allow the bearer to pass freely without let or hindrance and to afford him or her every assistance and protection of which he or she may stand in need.
81 As an Australian passport is issued to a named individual, it identifies that person as a citizen of Australia. Such identification is important, not only for the purposes of travel to foreign countries, but to prove that the person is an Australian citizen when re-entering Australia. The Australian passport issued to the applicant's mother in 1974 was issued for her identification and protection as an Australian citizen.
82 I do not accept that the applicant's mother's passport was an "entry permit" under s 6(1) of the Migration Act. The Migration Act distinguished between a passport and an entry permit. A "passport" was defined in s 5(1) of that Act to include, "a document of identity issued from official sources, whether in or outside Australia, and having the characteristics of a passport". That definition was evidently intended to capture passports issued under s 7(1) of the Passports Act and "other documents of identity" issued under regulations made under s 12 of that Act. On the other hand, an "entry permit" was defined to mean an entry permit issued under s 6 of the Migration Act. Section 6(7) deemed a married woman who entered Australia in the company of her husband and "whose name is included in the passport of…her husband…to be included in any entry permit granted to her husband". Section 6(8) operated in a similar way in respect of a child under 16 years of age (more will be said about this provision later in these reasons). These provisions indicate that a passport and an entry permit were distinct documents.
83 Section 6(3) of the Migration Act provided that an "entry permit shall be in a form approved by the Minister and shall be expressed to permit the person to whom it is granted to enter Australia or to remain in Australia or both". The Court was not provided with the approved form. The applicant's mother formerly held a British passport and, prior to her arrival in Australia on 8 May 1973, her passport was stamped with the words "Endorsement for Australia" and "Subject to issue on arrival of an entry permit" under the heading "Visas". Because most immigrants would not be Australian citizens, it is evident that the approved form of an entry permit could not have been an Australian passport.
84 An Australian passport demonstrated that the holder was a citizen of Australia and, in most cases, it seems likely that would have satisfied an immigration officer that the holder was not an "immigrant" who required an entry permit. However, that would not invariably be the case. That is at least so because "Australian citizen" was defined in s 5(1) of the Passports Act to mean an Australian citizen within the meaning of the Australian Citizenship Act, so that it seems an Australian passport was capable of being issued to persons who were citizens by virtue of birth in an Australian territory that was not a trust territory (having regard to s 10(1) and the definition of "Australia" in s 5(1) of the Australian Citizenship Act). However, as Walsh demonstrates, such a person could nevertheless be an "immigrant" who required an entry permit for the purposes of s 6(1) of the Migration Act. Therefore, a passport was not an entry permit.
85 The applicant relies upon s 6(8) of the Migration Act, which provided:
A child under the age of sixteen years who enters Australia in the company of, and whose name is included in the passport of, or any other document of identity of, a parent of the child shall be deemed to be included in any entry permit granted to that parent before the entry of that parent and written on that passport or other document of identity, unless the contrary is stated in the entry permit.
86 The applicant submits that it should be inferred that his name was included in his mother's passport prior to Independence Day. He submits such an inference should be drawn since his mother surrendered her passport when she obtained a new one and it has not been produced by the respondent. However, I consider that it is not appropriate to draw such an inference in circumstances where there is no adequate basis to suppose that the passport, having been surrendered around 40 years ago, is still in existence. The applicant's mother does not depose that the applicant was included in her passport before Independence Day, and it seems just as probable that he was included after Independence Day, since they did not travel to Australia until 31 October 1975. In any event, s 6(8) does not assist the applicant. It is inapplicable because no entry permit was granted to his mother.
87 I therefore reject the applicant's submission that even if he and his mother were "immigrants", his mother's passport, in which he was named, was an entry permit giving them a right to reside permanently in Australia
88 I will turn to the applicant's submission that his mother was not an "immigrant" and that her status must be attributed to him.
89 The applicant argues that his mother was not an "immigrant" because she was a naturalised citizen of Australia, she held an Australian passport and she had an intention to live permanently in Australia.
90 In Walsh at [19], the Full Court held that possession of Australian citizenship may be an important factor, but is not decisive of whether a person is an "immigrant". In this case, the applicant's mother became a citizen by the grant of a certificate of citizenship. In my opinion, the fact that a decision was actively made by the Minister (or a delegate) to grant citizenship to the applicant's mother is an indicator of her acceptance into the Australian community. That may be contrasted with acquisition of citizenship merely by virtue of birth in an Australian territory.
91 When entering Australia after she became an Australian citizen, the applicant's mother's passport operated as proof of her citizenship. While the respondent has produced evidence of each of the applicant's mother's entries into mainland Australia, he has not produced evidence that any entry permits, whether temporary or permanent, were issued to her after she became an Australian citizen. In her oral evidence, the applicant's mother agreed with the proposition put to her that when she travelled to Australia after her initial entry on a British passport, she did not get a permit or visa. I accept that no entry permits were issued to the applicant's mother after she became an Australian citizen and obtained an Australian passport. I infer that was so because she was not regarded by immigration officials as an "immigrant" who required an entry permit.
92 The applicant's mother gave evidence that, despite living in Papua, she intended to make Australia the permanent home of her family. She deposed that she was planning to return to Australia "all that time", which I understand to be throughout the time she lived in Papua and PNG. She intended that her family would move to Australia once her husband had ceased his work there. She made trips to Australia looking for investment properties and a home. They purchased a house in Brisbane in 1975 or 1976 and moved there permanently in 1982. The applicant's mother becoming an Australian citizen in 1973 is consistent with an intention to move permanently to Australia, his father already having become an Australian citizen in 1964.
93 It is apparent, as the respondent submits, that until 1982 the applicant's mother had never resided in mainland Australia, although she made a number of visits, each for up to a month. At Independence Day, she had only spent 17 days in mainland Australia.
94 The respondent's counsel pointed out in cross-examination that in an Outgoing Passenger Card signed by the applicant's mother on 18 July 1974, she completed a section headed "Visitor or temporary entrant leaving", and indicated that her "Country of residence" was "PNG". She explained that was because she was living in PNG at that time. The answer given was true, and was not inconsistent with an intention to move to the Australian mainland in the future. I accept that at Independence Day, it was the intention of the applicant's mother that her family would eventually live permanently in Australia.
95 Having regard to the fact that the applicant's mother had obtained a grant of Australian citizenship, that she was accepted by Australian immigration officials as someone who was not an immigrant and that she intended to remain in PNG only temporarily and to live in Australia permanently, I find that at Independence Day she was to be regarded as part of the Australian community and that Australia was her real home.
96 Therefore, the applicant's mother was not an "immigrant". At Independence Day, she was entitled to reside permanently in Australia.
97 The next issue is whether the applicant's mother's status as a person who was not an immigrant must be attributed to him. In Walsh, the Full Court held at [27] that the fact that the respondent may have been permitted to enter Australia if she had been included on her father's passport did not mean that she had a right of permanent residence in Australia. At [25], the Full Court rejected a submission that the respondent's rights were correspondent with her father's rights. It is not open to a single judge to reconsider that ruling on the basis of different arguments run in this case. In any event, it seems entirely possible (where, for example, there is a split family) that the real home of a parent may be one country, while that of their child may be another.
98 However, I consider that the applicant's mother's status is relevant to his next argument that, in his own right, he was not an "immigrant" at Independence Day. The applicant was an Australian citizen by birth, although that was neutral in determining whether his home was Papua or mainland Australia. He was born in Papua and had lived his whole life there at Independence Day. These factors tend to support the respondent's argument that the applicant would have been regarded as an immigrant had he sought to enter mainland Australia at Independence Day. However, the fact that he had lived his whole life in PNG cannot be given the same weight it was given in Walsh, as the applicant was only four months old at Independence Day.
99 In Potter v Minahan, the respondent's desire and intention to return permanently to Australia was important. In this case, where the applicant was only four months old at Independence Day, he was incapable of making any decision, or forming any intention, as to where he would live. Just as the applicant was bound to his mother's domicile, he was bound to her desire and intention as to their family's future domicile. I have found that the applicant's mother intended that her family would live permanently in Australia. The test for who is an immigrant is a practical one. To fail to regard the mother's desire and intention as affecting the question of which country was the applicant's real home would be quite artificial. I note that in Walsh, in contrast, there does not seem to have been any evidence about the intention of the respondent's parents as to where the respondent would permanently reside.
100 The applicant's mother deposed that she made enquiries at the Australian High Commission at Port Moresby in 1977 and at the Department of Immigration in Brisbane in 1983 about whether anything more was needed to register him as an Australian citizen, but was told that it was not necessary. The Australian officials apparently regarded the applicant as an Australian, rather than a PNG, citizen. That provides some indication that at those times he was accepted as part of the Australian community. There is no reason to suppose that a different view would have been taken at Independence Day.
101 The applicant was included in his mother's passport when they travelled to Australia on 31 October 1975. The applicant was issued with his first Australian passport in 1979. There is some evidence (in the reasons of the Departmental officers who made the decisions in 2018 and 2019 that the applicant would not be provided with proof of citizenship) that entry permits issued under the Migration Act were stamped in passports. The applicant travelled on his 1979 passport between PNG and Australia in 1981 and again in 1982. There are no stamps indicating that any Australian entry permit was issued to the applicant, but there are PNG entry permits stamped in the applicant's passport. The respondent admits that the applicant did not obtain any entry permits when he entered Australia. I find that the applicant was accepted by Australian immigration officials to be a person entitled to enter Australia without an entry permit. That provides some evidence that the applicant was accepted as part of the Australian community. There is no reason to doubt that Australian immigration officials would have taken the same view if he had sought to enter mainland Australia at Independence Day.
102 Conversely, PNG immigration officials regarded the applicant as a person who required an entry permit to enter PNG, suggesting that they did not regard him as a citizen of PNG. That is consistent with a letter from the PNG Immigration & Citizenship Service Authority dated 15 October 2017 indicating that the applicant's name is not recorded in the PNG citizenship database and that he is not a citizen of PNG.
103 There were only two countries which might have been considered the applicant's real home at Independence Day - PNG or Australia. In my opinion, the weight of the evidence supports Australia as being the applicant's real home. That evidence includes that Australian officials regarded the applicant as an Australian citizen and not as an "immigrant" when he entered Australia, and that PNG officials did not regard the applicant as being a PNG citizen. It is important that the applicant's mother intended that PNG would only be their temporary abode, and that Australia would be their permanent home in the longer term. While there are differences between the circumstances of the applicant's mother and the applicant, I consider that if the applicant had sought to enter Australia with his mother at Independence Day, he would not have been an immigrant.
104 Therefore, at Independence Day, the applicant had a right to reside permanently in Australia within s 65(4)(a) of the PNG Constitution. Accordingly, s 65(1) did not apply to make him a citizen of PNG.