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Mahuru and Department of Immigration and Citizenship [2008] AATA 464 (3 June 2008)

Last Updated: 4 June 2008

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2008] AATA 464

ADMINISTRATIVE APPEALS TRIBUNAL )

) No 2007/3561

Applicant

Respondent

DECISION

Date 3 June 2008

Place Brisbane

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

CATCHWORDS

IMMIGRATION AND CITIZENSHIP – Citizenship – applicant born in Papua New Guinea before independence – applicant’s parents and grandparents born in Papua New Guinea – applicant claims to be Australian citizen – applicant never had right to permanent residence in Australia – applicant subsequently became citizen of Papua New Guinea by force of the Constitution of the Independent State of Papua New Guinea – on independence Australia ceased sovereignty – no allegation of racial discrimination – comparison with Zambia – no contravention of human rights – children follow the citizenship of their parents – applicant lost citizenship of Papua New Guinea on independence – applicant is not entitled to Australian citizenship – application cannot succeed – decision under review affirmed.

British Nationality Act 1948

Nationality and Citizenship Act No. [83] of 1948

Migration Act 1958 (Cth)

Australian Citizenship Act 1948

Papua New Guinea (Australian Citizenship) Regulations 1975

Zambia Independence Order

Zambian Independence Act 1964

 Papua New Guinea Independence Act 1975  (Cth)

Racial Discrimination Act 1975 (Cth)

Australian Citizenship Act 2007

Australian Citizenship (Transitional and Consequentials) Act 2007

Gavin Gibson & Co Ltd v Gibson [1913] 3 KB 379

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

Re Minister for Immigration, ex parte Ame [2005] HCA 36; (2005) 222 CLR 439

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

Doe d. Thomas v Acklam [1824] EngR 605; (1824) 2 B & C 779

Mabo v Queensland [No.2] [1992] HCA 23; (1992) 175 CLR 1

Motala v Attorney-General [1992] 1 AC 281

Songoro v Minister for Immigration [2005] AATA 774

REASONS FOR DECISION

1. The applicant Mr Mahuru Seaka-Kabua was born at Port Moresby in the Territory of Papua on 26 September 1962. According to his letter dated 1 August 2007, the applicant’s “parents and grandparents were Papuans”, and there is no reason to doubt this statement. It accords with all the information supporting this application to review the decision of the Minister’s delegate refusing the applicant’s claim to be an Australian citizen.
2. Because of what follows, it is convenient to recall briefly the history of the nationality of persons born in what is now Papua New Guinea. In 1884 Great Britain declared a protectorate over the south eastern quarter of the island of New Guinea. Then known as British New Guinea, it was in 1888 placed first under the administration of the colony of Queensland and then (acting under the British Settlements Act 1887) of the government of Australia. This action, effected by letters patent of 16 March 1902, was accepted under s 5 of the Papua Act 1905 (Cth). Papua thereupon became an “external territory” of the Commonwealth of Australia.
3. Under the law then prevailing, all persons born anywhere in the King’s dominions were British subjects. At that time the law recognised no such thing as nationality or citizenship of a particular part of what was then the British Empire[1]. That state of affairs continued until the enactment of the British Nationality Act 1948. That Act maintained the concepts of a common British nationality, but only as a status derived from local citizenship of one of a number of specified Commonwealth countries. The British Act of 1948 was designed to be locally duplicated in those countries, and in Australia the legislation took the form of the Nationality and Citizenship Act No. [83] of 1948 (Cth), which came into operation on 26 January 1949. Later amendments altered the title of the Act to the Australian Citizenship Act 1948 (the old Act). Under the old Act, Australian citizenship might be acquired in various ways, relevantly for present purposes by birth in Australia: s 10(1)[2].
4. For the purposes of the old Act, Papua was part of Australia. By virtue of his birth in Papua in 1962, the applicant was therefore an Australian citizen at birth. However, by force of the Migration Act 1958 (Cth), he nevertheless required an entry permit to enter and reside permanently in Australia. See Re Minister for Immigration, ex p Ame[3], approving on this point Minister v Walsh[4]. The applicant has never had any such right of permanent residence in Australia.
5. So matters remained until 16 September 1975. That was the day on which Papua, by then united with the former Trust Territory of New Guinea, attained its independence. This was the combined effect of the Papua New Guinea Constitution adopted by resolution of the Constituent Assembly acting for the people of the Independent State of Papua New Guinea, together with the  Papua New Guinea Independence Act 1975  (Cth), where these events are recited.  Section 4  of that Act provided that, on the expiration of the day preceding Independence Day (16 September 1975), Australia ceased to have any sovereignty or sovereign rights or rights of administration in respect of any part of Papua New Guinea.
6. Among the questions that fell to be determined in the lead-up to independence was the future status of persons inhabiting Papua who were then Australian citizens. This was the subject of explicit provision in s 65(1) and s 65(4) of the Constitution of Papua New Guinea, which was prepared in anticipation of independence by the Constitutional Planning Committee established by the Papua New Guinea House of Assembly[5].
7. Under the heading Automatic Citizenship on Independence Day, s 65 of the Constitution of the Independent of State Papua New Guinea provided:

“(1) A person born in the country before Independence Day who has two grand-parents who were born in the country...is a citizen.”

Subsection (4) of s 65 went on to say that s 65(1) did not apply to a person who:

“(a) has a right...to permanent residence in Australia;”

8. The applicant was born in the country of Papua New Guinea before Independence Day and, on his own admission, had at least two grandparents born in that country. He was therefore a citizen under s 65(1) of the Constitution unless under s 65(4) he had a right to permanent residence in Australia. As already stated, he has never had any such right. He therefore became a citizen of Papua New Guinea by force of s 65 of the Constitution on 16 September 1975.
9. Section 65 of the Constitution applied to the applicant as a person who satisfied the description in s 65(1). It was part of the law of Papua New Guinea. It was not part of the law of Australia, except to the extent that Australia gave effect to it. As to that, Regulation 4 of the Papua New Guinea Independence (Australian Citizenship) Regulations 1975, made under  s 6  of the Papua New Guinea Independence Act 1975 (Cth), provided as follows:

“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.”

10. Regulation 4 simply gave effect in Australia to the provisions of s 65(1) and s 65(4) of the Constitution. The validity of Regulation 4 was challenged but upheld by the High Court of Australia in Re Minister for Immigration, ex parte Ame[6]. By force of regulation 4 the applicant therefore ceased, as a matter of Australian law, to be an Australian citizen by reason of his having under reg 4(b) become a citizen of the Independent State of Papua New Guinea by virtue of its constitution.
11. This is the principal matter of complaint by the applicant in these proceedings. He says that in 1975 his Australian citizenship was taken from him without any notice to him, and without any choice on his part, at a time when he was only 13 years of age. He submits that this is contrary to s 10 of the Racial Discrimination Act 1975 (Cth) (the RD Act) and also Article 5 of the International Convention on the Elimination of all Forms of Racial Discrimination (the Convention) that is scheduled to the RD Act.
12. It is convenient here to set out the provisions of s 10(1) of the RD Act and Article 5 of the Convention. They appear in the applicant’s letter dated 8 February 2008 to the Deputy Registrar of the Administrative Appeals Tribunal, and are as follows –

“10 Right to equality before the law

(1) If, by reason of, or of a provision, of a law of the Commonwealth or of a State or Territory, persons of a particular race, colour or national or ethnic origin do not enjoy a right that is enjoyed by persons of another race, colour or national or ethnic origan or enjoy a right to a more limited extent than persons of another race, colour or national or ethnic original, then, notwithstanding anything in that law, persons of the first-mentioned race, colour or national or ethnic original shall, by force of this section, enjoy that right to the same extent as persons of that other race, colour or national or ethnic origin.”

“Article 5

In compliance with the fundamental obligations laid down in article 2 of this Convention, States Parties undertake to prohibit and to eliminate racial discrimination in all its forms and to guarantee the right of everyone, without distinction as to race, colour, or national or ethnic origin, to equality before the law, notably in the enjoyment of the following rights:

(a) The right to equal treatment before the tribunals and all other organs administering justice;

...

(d) Other civil rights, in particular:

(i) The right to freedom of movement and residence within the border of the State;

(ii) The right to leave any country, including one’s own, and to return to one’s country;

(iii) The right to nationality;”

13. The applicant’s letter of 8 February 2008 states that “the above Act came into force on the 2nd January 1969.” With respect, that cannot be correct. It cannot have come into force before being enacted. Section 2(1) of the Racial Discrimination Act (No 52 of 1975) provides that sections 1, 2 and 7 of the Act are to come into force on the day on which the Act received the Royal Assent, which is recorded in Note 1 to the Act as printed in Acts of the Commonwealth Parliament for 1975 as 11 June 1975. Section 2(2) provides that the remaining provisions of the Act are to come into force on a day to be fixed by Proclamation. According to the notes accompanying reprints of the RD Act, that day was fixed at 31 October 1975. It may be that the 2 January 1969 was the date at which the Convention itself was ratified by Australia, or by the requisite number of States so as to make it effective in international law. What matters here, however, is not the international effect of a multipartite treaty like the Convention in this case, but its incorporation into the municipal law of the contracting States. In Australia in the case of this Convention, that event cannot have occurred, at earliest, before the RD Act received the royal Assent, which, as we have seen, was on 11 June 1975; or, in the case of s 10(1) of the RD Act, on 31 October 1975.
14. In the end, the precise date on which the RD Act came into force does not matter. That is so because of the restriction on the territorial ambit of the RD Act that was contained in the Act itself. Section 4 of the RD Act in the form in which it was originally enacted provided:

“4. This Act extends to every external Territory except Papua New Guinea.”

As if to make assurance doubly sure, s 3(1) of the RD Act in that form specifically defined “Territory” so as not to include Papua New Guinea.

15. It is at this point that the applicant’s reliance on the provisions of s 10(1) of the RD Act goes astray. The action of which he now complains is that of being deprived, without notice or choice, of his Australian nationality on 16 September 1975. But it was an act that took place not in Australia but in Papua New Guinea, to which the RD Act did not apply. On the contrary, that act of alleged deprivation was effectuated by force of s 65 (1) and s 65(4) of the Constitution of Papua New Guinea. It is true that regulation 4(b) of the Papua New Guinea (Australian Citizenship) Regulations 1975 gave legal effect in Australia to what happened in Papua New Guinea on Independence Day; but that was no more than local recognition of the existing juristic fact that was accomplished by the joint operation of s 65 of the Constitution of the Independent State of Papua New Guinea and  s 4  of the  Papua New Guinea Independence Act 1975  (Cth)[7].
16. As we have seen,  s 4  declared that at the end of the day (15 September) preceding Independence Day on 16 September 1975, Australia ceased to have any sovereignty, sovereign rights or rights of administration in respect of Papua New Guinea. Decisions in both England and the United States have long since settled that a provision in the form or to the effect of  s 4  severs the tie of allegiance with and citizenship of the surrendering sovereign state. Speaking in Doe d. Thomas v Acklam [1824] EngR 605; (1824) 2 B & C 779, 796; [1824] EngR 605; 107 ER 572, 579, of the provision in the treaty of 1783 by which Great Britain recognised the independence of the United States, Abbott CJ in the King’s Bench said:

“... a relinquishment of the government of a Territory is a relinquishment of authority over the inhabitants of that territory; a declaration that a State shall be free, sovereign and independent is a declaration that the people composing that State shall no longer be considered as subjects of the Sovereign by whom such declaration is made.”

Precisely the same is true of the provision in  s 4  of the  Papua New Guinea Independence Act 1975  that Australia’s sovereignty, sovereign rights or rights of administration ceased at the end of the day preceding Independence Day.

17. It would be an extraordinary result if Australia were forever barred from giving effect to a withdrawal of its sovereignty over Papua New Guinea and its people by reason of an allegation of racial discrimination said to be involved in its failure to preserve the Australian citizenship of every local inhabitant born in Papua. It would mean that Australia would be permanently precluded from ever recognising the independence of Papua New Guinea for fear it might deprive some one or more persons of their Australian citizenship without first consulting each one of them individually about it. This is entirely inconsistent with the decision of the High Court in ex parte Ame[8], where it was said that the capacity to acquire sovereignty necessarily includes the capacity to bring it to an end.
18. It is well settled that the process of acquiring sovereignty over a territory and its people is an act of state into the validity of which municipal courts will not inquire[9]. It has been called “a catastrophic change, constituting a new departure”, as Fletcher Moulton LJ described it in Salamon v Secretary of State for India[10]. In my respectful opinion, the same rule necessarily applies to the converse case of a surrender or withdrawal of sovereignty. The courts will not inquire into its validity. Whether in time of peace the Crown alone acting under its prerogative can without an Act of Parliament validly cede territory is a question that at one time was much debated[11]. No such question arises here. The surrender or the cession (if that is what it was) of Papua New Guinea was authorised by Act of Parliament in Australia. Its constitutional validity was confirmed by the High Court in ex parte Ame[12]. It is therefore not now open to the applicant to challenge it as being in some way inconsistent with the Racial Discrimination Act 1975, which, by its express terms, did not apply to Papua New Guinea at all.
19. The reasons of the majority in ex parte Ame, supra, refer to a series of statutes and statutory instruments granting independence to former territories of the British Empire. Those statutes or statutory instruments are said to have formed the model for the provision in reg 4 of the Papua New Guinea (Australian Citizenship) Regulations 1975[13]. Additional examples mentioned by Kirby J in his assenting reasons in ex parte Ame[14] include the Zambia Independence Act 1964 and the Zambia Independence Order 1964 (SI 1964 no 1652). Zambia, formerly the British protectorate of Northern Rhodesia, attained its independence on 24 October 1964. In this connection, it may not therefore be amiss to mention the decision of the House of Lords in Motala v. Attorney-General[15]. It concerned the impact of Zambian independence on the citizen status of two children Safiya and Faruq born in Northern Rhodesia not long before independence in 1964. For reasons that are explained in the speech of Lord Bridge in that case, the two children were before independence citizens of the United Kingdom as well as being British protected persons.
20. There were two relevant legislative provisions. One was s 3(1) of the Constitution of Zambia set out in the Zambia Independence Order. Section 3(1) provided that every person who, having been born in the former protectorate of Northern Rhodesia, was on 23 October 1964 a British protected person “shall become a citizen of Zambia on 24 October 1964”. The other, in s 3(3) of the Zambian Independence Act 1964, provided that any person who immediately before 24 October 1964 was a citizen of the United Kingdom “shall on that day cease to be such a citizen if he becomes on that day a citizen of Zambia”. Having concluded that by force of s 3(1) the two children had become citizens of Zambia on 24 October 1964, Lord Bridge[16] went on –

“If there is no escape from the conclusion that Safiya and Faruq became citizens of Zambia on the appointed day under section 3(1) of the Constitution, there is equally no escape from the conclusion that they thereby ceased to be citizens of the United Kingdom and Colonies under section 3(3) of the Act.”

21. The provisions of ss 3(1) and 3(3) are set out in the speech of his Lordship in Motala v A-G[17]. The similarity in language and effect of these provisions and those of s 65 of the Papua New Guinea Constitution, and in particular of regulation 4 of the Papua New Guinea (Australian Citizenship) Regulations 1975, which was noted by the High Court in Re Minister for Immigration ex parte Ame[18], means that the decision in Motala v Attorney-General is applicable in this instance. It follows that on 16 September 1975 the applicant was deprived of his Australian citizenship by virtue of the combined effect of the statutory provisions referred to in these reasons.
22. This leaves for consideration the applicant’s submission about the provisions of Article 5 of the Convention scheduled to the Racial Discrimination Act 1975. In providing for equality of treatment without distinction as to race, colour, nationality etc, Article 5a (iii) specifically mentions “the right to nationality”. A similar question was considered by Kirby J in his assenting reasons for judgment in Minister of Immigration, ex parte Ame[19]. His Honour was there referring to the comparable provision in Article 15 of the Universal Declaration of Human Rights proscribing arbitrary deprivation of the right to nationality. His Honour’s conclusion was that the cessation of Australian citizenship inherent in Papua New Guinea’s independence did not contravene Article 15 of the Universal Declaration of Human Rights. The applicant Ame was not deprived of the right to nationality: it simply underwent a change from the nationality of Australia to the nationality of the new State of Papua New Guinea. The process of conversion from one form to the other was an act of state authorised by the constituent Assembly of the latter nation and its constitution, and in Australia by the  Papua New Guinea Independence Act 1975 . Even if it was capable, within the meaning of the Racial Discrimination Act 1975, of involving an element of racial or other discrimination against the applicant in Papua New Guinea, it was one to which, by s 4 that Act, the scheduled Convention did not extend.
23. The decision which it is sought to review here proceeded on the basis that the application considered by the Minister’s delegate was an application under s 29(1) of the Australian Citizenship Act 2007 (the new Act) to become an Australian citizen again. The circumstances in which a person is eligible to become an Australian citizen again are specified in s 29(2) and s 29(3). Unless the applicant satisfies one or other of the conditions of eligibility so specified, the Minister must by s 30(1A) of the new Act not approve the applicant’s becoming an Australian citizen again.
24. Under s 29(2) of the new Act a person is eligible to become an Australian citizen again (a) under s 33 of that Act; or (b) if a child, under s 36 of the Act. Section 33 of the Act is concerned with the action of a person in renouncing Australian citizenship under s 33(2) of the Act, which in turn requires the Minister to be satisfied that the person renouncing his Australian citizenship is aged 18 years or over: s 33(2)(a). On any view of it, the applicant did not renounce his citizenship in September 1975, and under s 33(2)(a) he was not of competent age to do so.
25. The Act assumes that, in general in matters of citizenship, children automatically follow the citizenship of their parents. Section 36 is concerned with the impact on the citizenship of a child under 18 years of age of cessation of the Australian citizenship of a “responsible parent” under s 33, 34 or 35 of the Act. There is no suggestion anywhere in the material that either of the applicant’s parents renounced his or her Australian citizenship under s 33; or that his or her citizenship was revoked under s 34 of the Act; or that under s 35 either of them served in the armed forces of a country at war with Australia. The applicant is not within any of the categories of persons who, having ceased to be an Australian citizen in the circumstances specified in s 29(2), is eligible to become an Australian citizen again under that provision.
26. Section 29(3)(a) provides for eligibility to become an Australian citizen again if the applicant ceased to be an Australian citizen under (i) s 17 of the old Act; (ii) s 18 of the old Act; (iii) s 20 of the old Act; or (iv) s 23 of the old Act. None of these methods of ceasing to be an Australian citizen applied or is applicable to the applicant in this matter. Section 17 of the old Act was concerned with loss of Australian citizenship as a result of acquiring dual citizenship of Australia and another country. It was repealed in 2002, and in any event, applied only to a person over 18 “who did an act the effect of which was to acquire the nationality or citizenship of a foreign country.” The applicant, who was 13 years old in 1975, did no such act. I also respectfully agree with Senior Member Constance in Songoro v Minister for Immigration[20] that merely remaining in Papua New Guinea after Independence did not constitute either a “voluntary” or a “formal” act within the meaning of s 23AA(1)(a) of the old Act. Indeed, it was not an “act” at all within the meaning of the provision. The applicant ceased to be an Australian citizen not by any “act” of his own but by operation of law.
27. The same reasoning holds good for s 29(3)(a)(ii) of the new Act, which deals with s 18 of the old Act. It concerned renunciation of Australian citizenship by a person who was over 18 years of age. Section 29(3)(a)(iii) of the new Act provides for resumption of citizenship by a person who ceased to be and Australian citizen under s 20 of the old Act. It was repealed as long ago as 1958, which was some years before the applicant was born. It can have had no application to him. Section 29(3)(a)(iv) catered for the case of a child under 18 years of age who ceased to be an Australian citizen under s 23 of the old Act because his or her “responsible parent” ceased to be an Australian citizen for one or other of the reasons specified in ss 18 or 19 of the old Act. There is no material to suggest that the applicant’s parents or either of them ceased to be an Australian citizen under ss 18 or 19 of the old Act, or that they were deprived of Australian citizenship under s 21. Like the applicant, they lost their Australian citizenship by operation of law when they became citizens of Papua New Guinea on Independence Day. Section 29(3)(a)(iv) therefore has no application in the case of the applicant.
28. The old Act was repealed by Part 2 of Schedule 1 (s 42) of the Australian Citizenship (Transitional and Consequentials) Act 2007, which came into effect on 1 July 2007. The applicant’s application to resume his Australian citizenship purported to be made by declaration under the old Act lodged on 23 August 2006, which was before the old Act was repealed. The Minister had, however, not dealt with it by the time the new Act commenced. Under s 7(4) and s 7(6) of Part 1 of Schedule 3 to the new Act, it is accordingly to be taken to be an application to become an Australian citizen again as if made under s 29 of the new Act. Hence, it is that section that now governs the disposition of this application to review.
29. For the reasons given, the application cannot succeed. The decision dated 23 July 2007 of the Minister’s delegate refusing Mr Seaka-Kabua’s application to resume his Australian citizenship is therefore confirmed.

I certify that the 29 preceding paragraphs are a true copy of the reasons for the decision herein of Honourable Dr B H McPherson CBE Deputy President.

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

Jacqui Woods, Associate

Hearing on the Papers 8 April 2008

Date of Decision 3 June 2008

[1] See Gavin Gibson & Co Ltd v Gibson [1913] 3 KB 379, 389-390.

[2] On this, see Minister for Immigration v Walsh [2002] FCAFC 205; (2002) 125 FCR 31.
[3] [2005] HCA 36; (2005) 222 CLR 439, at 445
[4] [2002] FCAFC 205; (2002) 125 FCR 31, 35-36.
[5] See ex parte Ame [2005] HCA 36; (2005) 222 CLR 439, at 447- 452, where the history is discussed.
[6] [2005] HCA 36; (2005) 222 CLR 439.
[7] See ex parte Ame [2005] HCA 36; (2005) 222 CLR 439, at 455.
[8] [2005] HCA 36; (2005) 222 CLR 439, 457.
[9] See Mabo v Queensland [No 2] [1992] HCA 23; (1992) 175 CLR 1 at 78-79
[10] [1906] 1 KB 613, 640.
[11] See Forsyth, Cases and Opinions on Constitutional Law (London 1869) at 182-186.
[12] [2005] HCA 36; (2005) 222 CLR 439.
[13] See ex parte Ame[2005] HCA 36; , 222 CLR 439 at 455 – 456.
[14] (2005) 222 CLR at 486 – 487.
[15] [1992] 1 AC 281.
[16] [1992] 1AC 281 at 293.
[17] [1992] 1 AC 281, at 287 A-C.
[18][2005] HCA 36; (2005) 222 CLR 439 at 455-456.
[19] [2005] HCA 36; (2005) 222 CLR 439, at 485.
[20] [2005] AATA 774