Walsh v Minister for Immigration & Multicultural Affairs

REASONS FOR JUDGMENT 1 The applicant was born on 13 July 1970 in Hohola Central District in what is now Papua New Guinea. On 14 February 2000 she applied for registration as an Australian citizen pursuant to the Australian Citizenship Act 1948 (Cth) (the "Citizenship Act"), apparently in reliance upon s 10C. That application was unsuccessful. The applicant applied to the Administrative Appeals Tribunal for review of that decision which application was also unsuccessful. This is an appeal from the Tribunal's decision. The relevant facts are very brief and appear from the judgment of the Deputy President. At the time of Ms Walsh's birth Papua was an external territory of Australia whilst New Guinea was administered by Australia as a United Nations trusteeship. The applicant's mother was an indigenous Papuan. Her father was an Australian citizen. On 16 September 1975 ("Independence Day"), Papua and New Guinea became a united and independent nation. The applicant's father died in 1982, at which time he was still an Australian citizen. Her parents were not married until after Independence Day. 2 Subsection 10(1) of the Citizenship Act currently provides as follows: Subject to this section, a person born in Australia after the commencement of this Act shall be an Australian citizen. 3 Section 10A deals with the citizenship of a person who has been adopted by an Australian citizen and is not presently relevant. Section 10B deals with "citizenship by descent" providing relevantly: (1) A person born outside Australia (in this subsection referred to as the relevant person) is an Australian citizen if: (a) the name of the relevant person is registered for the purposes of this section at an Australian consulate, and the registration is the result of an application made within 18 years of the person's birth to register the person's name for those purposes; and (b) a person, being a parent of the relevant person at the time of the birth of the relevant person: (i) was at that time an Australian citizen who had acquired Australian citizenship otherwise than by descent; or (ii) … 4 Section 10C provides 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 Australia 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. (5) … (6) … (7) … 5 Obviously, registration pursuant to s 10C is only available to a person who has been entitled to registration under either s 10B or s 11 in its earlier forms but has failed to take advantage of that opportunity. It is conceded that if the applicant was entitled to registration under either section, she had an acceptable reason for failing to achieve it. Section 11, in its present form, is not relevant for the purposes of this judgment, but it will be necessary to refer to it in its previous form. 6 When the Citizenship Act was first enacted, subs 5(1) provided that the term "Australia" included Papua. The definition was later amended by deleting reference to specific territories and including the words "the Territories that are not trust territories". This description included Papua but not New Guinea. That was the position on Independence Day. Subsection 10(1) of the Citizenship Act as enacted in 1948 provided that: Subject to this section, a person born in Australia after the commencement of this Act shall be an Australian citizen by birth. 7 The subsection remained in this form until after Independence Day. By virtue of this provision, the applicant was an Australian citizen. On Independence Day Papua ceased to be a territory of Australia and became part of Papua New Guinea. Subsections 65(1) and 65(4) of the Constitution of Papua New Guinea (the "PNG Constitution") provided: (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). 8 It is common ground that the applicant satisfied subs 65(1). She would appear to have become a citizen of Papua New Guinea unless she had a permanent right of residence in Australia. 9 Section 6 of the Papua and New Guinea Independence Act 1975 (Cth) (the "Independence Act") authorized the Governor-General of Australia 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. 10 Regulation 4 of the "Papua and New Guinea Independence (Australian Citizenship) Regulations (the "regulations") provided that: 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. 11 The "Act" is the Citizenship Act. If the applicant became a citizen of Papua New Guinea on Independence Day, then she ceased to be an Australian citizen. She claims that she did not become a citizen of Papua New Guinea and so did not cease to be an Australian citizen, advancing two bases for such entitlement, namely: • As at Independence Day she was entitled to permanent residence in Australia because of her status as an Australian citizen; and/or • She was, in any event, entitled to residence in Australia by virtue of her father's entitlement to permanent residence. 12 Alternatively, the applicant claims citizenship upon the basis that either ss 10B or 10C of the Citizenship Act confers upon her a right to that status. 13 Before considering the legislation in more detail, it is important to clarify two issues. Firstly, citizenship is purely the creature of statute. See Nolan v Minister for Immigration and Ethnic Affairs (1988) 165 CLR 178 at 184. Prior to the commencement of the Citizenship Act, Australian-born or naturalized persons who were permanently resident here had the status of British subjects. The Citizenship Act created the concept of Australian citizenship and continues to regulate entitlement to it. Secondly, it has long been accepted that an Australian national may, in some circumstances, enter Australia as an immigrant. Regulation of such entry is within the constitutional competence of the Commonwealth Parliament. See The King v Macfarlane; Ex parte O'Flanagan and O'Kelly (1923) 32 CLR 518 at 580 where Starke J said: Immigration and emigration in the Constitution connote the movement of human beings into and out of the Commonwealth. And a law with respect to these subjects may not only encourage that movement but also restrict it. The power to deal with this movement is not founded upon the intent of the person entering into or departing from the Commonwealth, but upon the fact of entry or of departure … . But the Constitution unites into a Federal Commonwealth the people of Australia. 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, … and am of 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.