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Kaki and Minister for Immigration, Citizenship and Multicultural Affairs (Citizenship) [2024] AATA 2557 (19 July 2024)

Last Updated: 19 July 2024

Kaki and Minister for Immigration, Citizenship and Multicultural Affairs (Citizenship) [2024] AATA 2557 (19 July 2024)

Division: GENERAL DIVISION

File Number(s): 2023/5360

Re: Robert Basua Wakenda KAKI

APPLICANT

And Minister for Immigration, Citizenship, and Multicultural Affairs

RESPONDENT

DECISION

Tribunal: Deputy President A Younes

Date: 19 July 2024

Place: Sydney

The Tribunal affirms the decision under review.

...................................[SGD].....................................
Deputy President A Younes

CATCHWORDS

CITIZENSHIP — Application for Australian citizenship by descent — Cessation of Australian citizenship —  Papua New Guinea Independence Act 1975  (Cth) — Papua New Guinea Independence (Australian Citizenship) Regulations 1975 (Cth) — Whether section 16 of the Australian Citizenship Act 2007 (Cth) is satisfied — Decision under review affirmed

LEGISLATION

Australian Citizenship 1948 (Cth)

Australian Citizenship Act 2007 (Cth)

Civil Registration Act 1963 (PNG)

Constitution of the Independent State of Papua New Guinea 1975 (Papua New Guinea)

Nationality Act 1920 (Cth)

Papua Act 1905 (Cth)

Papua New Guinea Independence (Australian Citizenship) Regulations 1975 (Cth)

 Papua New Guinea Independence Act 1975  (Cth)

CASES

Minister for Immigration and Multicultural and Indigenous Affairs v Walsh (2002) FCR 31

Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Ame [2005] 222 CLR 439

REASONS FOR DECISION

Deputy President A Younes

19 July 2024

1. This is an application for review of a decision made by a delegate of the Minister for Immigration, Citizenship and Multicultural Affairs (the Respondent) on 19 July 2023 to refuse the Applicant’s application for Australian citizenship by descent (the delegate’s decision), made on 5 May 2022. The delegate refused the application on the basis that the Applicant did not satisfy the requirements of s 16(2)(a) of the Australian Citizenship Act 2007 (Cth) (the Act/2007 Act).
2. On 21 July 2023, the Applicant made an application to the Administrative Appeals Tribunal (the AAT/Tribunal) for review of the delegate’s decision.
3. For the following reasons, the Tribunal has concluded that the delegate’s decision should be affirmed.

RELEVANT LEGISLATION

4. Subsection 4(1)(b) of the Act defines the Australian citizen as follows:

Australian citizen

(1) For the purposes of this Act, Australian citizen means a person who:

(a) is an Australian citizen under Division 1 or 2 of Part 2; or

(b) satisfies both of the following:

(i) the person was an Australian citizen under the Australian Citizenship Act 1948 immediately before the commencement day;

(ii) the person has not ceased to be an Australian citizen under this Act.

Citizenship under the old Act

(2) If, under this Act, it is necessary to work out if a person was an Australian citizen at a time before the commencement day, work that out under the Australian Citizenship Act 1948 as in force at that time.

5. Commencement day is defined in section 3 of the 2007 Act as the day on which sections 2A to 54 (as originally enacted) commence – namely, 1 July 2007.

Acquisition of Australian citizenship

6. Section 16 of the Act deals with eligibility for Australian citizenship by descent, namely:

Application and eligibility for citizenship

(1) A person may make an application to the Minister to become an Australian citizen.

...

Persons born outside Australia on or after 26 January 1949

(2) A person born outside Australia on or after 26 January 1949 is eligible to become an Australian citizen if:

(a) a parent of the person was an Australian citizen at the time of the birth ...

...

7. Section 17 provides:

Minister’s decision

(1) If a person makes an application under section 16, the Minister must, by writing, approve or refuse to approve the person becoming an Australian citizen.

(1A) The Minister must not approve the person becoming an Australian citizen unless the person is eligible to become an Australian citizen under subsection 16(2) or (3).

(2) Subject to this section, the Minister must approve the person becoming an Australian citizen if the person is eligible to become an Australian citizen under subsection 16(2) or (3).

...

HEARING

8. On 3 July 2024, the Applicant attended the hearing and gave evidence in-person.

BACKGROUND

9. The Applicant was born in June 1981 in Lalibu in the Southern Highlands of Papua New Guinea (PNG).^[1] He has held a PNG passport.^[2] His birth certificate issued on 8 July 2004 shows that his parents are Susan PUMBU, and Michael KAKI, both of whom are recorded as being PNG nationals.^[3]
10. The Applicant’s movement records provided post-hearing show that on 24 April 2009, the Applicant arrived in Australia on a visitor visa. He departed on 4 September 2010 and returned on 24 October 2010.
11. On 25 August 2011, the Applicant applied for Australian citizenship by descent, which was refused on 30 January 2014 on the basis that at the time of his birth, he did not have a parent who was an Australian citizen. The Applicant sought review of that decision with the Tribunal but he later withdrew the application. On 19 January 2015, the Applicant lodged another application for Australian citizenship by descent, which was refused on the grounds that the Applicant did not have a parent who was an Australian citizen at the time of his birth, and that he was not a person of good character.
12. On 5 May 2022, the Applicant lodged a third application for Australian citizenship by descent, which was refused on the basis that the applicant did not have a parent who was an Australian citizen at the time of his birth.

MATERIAL BEFORE THE TRIBUNAL

13. The Tribunal has the following material before it:
    • The Respondent’s Statement of Facts, Issues and Contentions (SFIC), filed on 16 May 2024 (Exhibit 1).
    • Applicant’s mother’s evidence of Australian citizenship, and other documents, filed on 21 July 2023 (Exhibit 2).
    • Cancellation of notice of evidence of Australian citizenship relating to the Applicant’s mother, filed on 19 September 2023 (Exhibit 3).
    • Letter from the Department in relation to the Applicant’s late father, filed on 19 September 2023 (Exhibit 4).
    • Notification of refusal of application of citizenship by descent, filed on 19 September 2023 (Exhibit 5).
    • T-Documents, filed on 7 September 2023 (Exhibit 6).
    • Supplementary Amended T-Documents, filed on 27 June 2024 (Exhibit 7).
    • Legislation bundle, filed in the course of the hearing on 3 July 2024 (Exhibit 8).
    • Post-hearing documents including movement records and legislation.

ISSUE

14. The Tribunal needs to determine whether at the time of his birth, either of the Applicant’s parents was an Australian citizen, in order to satisfy the requirements of subsection 16(2)(a), and if so, whether that parent became a PNG citizen on 16 September 1975 (PNG Independence Day), and if so, whether their Australian citizenship was lost on Independence Day.

FINDINGS and REASONS

15. Both the delegate’s decision record and the Respondent’s SFIC^[4] provide a comprehensive analysis of citizenship laws relevant to the determination of the nationality of the Applicant and his parents.

Australian citizenship of the Applicant’s parents

16. The Applicant’s mother was born in Batri, Southern Highlands Province, on 13 March 1964.^[5] At the time of her birth, subsection 10(1) of the Australian Citizenship 1948 (Cth) (1948 Act) provided that, subject to certain exceptions, a person born in Australia after the commencement of the 1948 Act shall be an Australian citizen.^[6] Subsection 5(1) of the 1948 Act defined that Australia, “includes Norfolk Island and the Territory of Papua”.^[7] Territory was defined as a “Territory under the authority of the Commonwealth.” At the time of the birth of the Applicant’s mother, Papua was a Territory under the authority of the Commonwealth, but not a “trust territory” which is defined as a “territory administered by the government of any part of His Majesty’s dominions under the trusteeship system of the United Nations”.^[8]
17. Given that Papua was a territory under the authority of the Commonwealth and is included in the definition of Australia, the Applicant’s mother became an Australian citizen at the time she was born in 1964.
18. In relation to the Applicant’s father, at the time of his birth on 1 July 1947,^[9] the Nationality Act 1920 (Cth) (1920 Act) was in place.
19. Subsection 6(1) of the 1920 Act deemed certain persons to be natural-born British subjects, including:

...

(b) any person born out of His Majesty’s dominions, whose father was, at the time of that person’s birth, a British subject, and who fulfils any of the following conditions:-

(i) if his father was born within His Majesty’s allegiance ...

...

20. The issues then are whether at the time of the Applicant’s father’s birth, the Applicant’s paternal grandfather was a British subject who was born within His Majesty’s allegiance, and if so, then the Applicant’s father was, at the time of his birth, a natural-born British subject.
21. The Applicant’s paternal grandfather was born in Papua on 1 January 1913.^[10] At that time and by operation of section 5 of the Papua Act 1905 (Cth), Papua was a Commonwealth territory, and Schedule 2 to the 1920 Act listed His Majesty’s dominions which included The Commonwealth of Australia (including for the purposes of this Act the territory of Papua and Norfolk Island). As the Applicant’s paternal grandfather was born in Papua, he was a natural-born British subject within the meaning of subsection 6(1) of the 1920 Act, that is,he was a “person born within His Majesty’s dominions and allegiance.^[11]
22. The 1948 Act came into force on 26 January 1949. Subsection 25(1)(b) of the 1948 Act provided that a person who was a British subject immediately prior to the date of commencement of that Act shall, on that date, become an Australian citizen if they were born in New Guinea. Therefore, as the Applicant’s father was born in New Guinea, he became an Australian citizen on 26 January 1949.

PNG citizenship of the Applicant’s parents

23. The question is whether at the time of his birth, either of the Applicant’s parents became a citizen of PNG on Independence Day in 1975.^[12]
24. Sections 64 and 65 of the PNG Constitution provide that:

64. Dual citizenship

(1) Notwithstanding the succeeding provisions of this Part but subject to Subsection (2), no person who has a real foreign citizenship may be or become a citizen, and the provisions of this Part shall be read subject to that prohibition.

(2) Subsection (1) does not apply to a person who has not yet reached the age of 19 years, provided that, before he reaches that age and in such manner as is prescribed by or under an Act of the Parliament, he renounces his other citizenship and makes the Declaration of Loyalty.

...

(4) For the purposes of this section, a person who –

(a) was, immediately before Independence Day, an Australian citizen or an Australian Protected Person by virtue of –

(i) birth in the former Territory of Papua; or

(ii) birth in the former Territory of New Guinea and registration under Section 11 of the Australian Citizenship Act 1948-1975 of Australia; and

(b) was never granted a right (whether revocable or not) to permanent residence in Australia,

has no real foreign citizenship.

65. Automatic citizenship on Independence Day

(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 ...

...

The Applicant’s father

25. According to a Certificate of Birth Entry issued under section 20 of the Civil Registration Act 1963 (PNG) (PNG CRA) on 1 June 2011, each of Applicant’s paternal grandparents is shown to be of Papua New Guinean nationality.^[13] A Certificate of Birth Entry issued on 6 December 2011 in relation to the Applicant’s paternal grandfather who was born on 1 January 1913 in Papua, shows that each of the Applicant’s paternal great-grandparents is of Papua New Guinean nationality.^[14] As such, the Applicant’s father, was a person born in the country before Independence Day who has two grand-parents who were born in the country, as required by subsection 65(1) of the PNG Constitution.^[15] Subsection 65(1) must be read in the context of section 64,^[16] namely that a person who has a real foreign citizenship cannot be, or become, a PNG citizen.
26. The Respondent contended and the Tribunal accepts that the “purpose of s 64 was to ensure that those who were Australian citizens or Australian Protected Persons because they were born in Papua or New Guinea, respectively, but who did not have the right to enter and reside in Australia, could become PNG citizens”.^[17] The Responded referred to Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Ame:^[18]

...The author of a work on the history of the Constitution of Papua New Guinea wrote:

“Before Independence, most Papua New Guineans had no ‘real’ citizenship. Those born in Papua were technically Australian citizens, but they had no right to enter or remain in Australia, or even to leave their own country. Those born in New Guinea had the status of ‘Australian Protected Persons’. Although in the years immediately prior to Independence permission to enter or to leave the country was readily granted and the Papua New Guineans were issued with Australian passports, the technical barrier remained.”

...

The [Constitutional Planning] Committee proposed three methods of acquisition of citizenship: automatic citizenship; citizenship by registration; and citizenship by naturalisation. The [Constitutional Planning Committee] Report stated:

“20. The vast majority of the inhabitants of Papua New Guinea will become citizens of Papua New Guinea as of right when our recommendations come into force. They will automatically become Papua New Guineans. They will not have to do anything in order to become citizens. They will simply be defined by law as citizens.

21. Any person who was born in Papua New Guinea before the citizenship law comes into force ... shall be a citizen of Papua New Guinea if:
    • he or she is not a ‘real’ citizen of a foreign country; and
    • he or she has at least two indigenous grandparents.
22. For the purposes of this provision, persons who are Australian citizens by virtue only of their birth in Papua, and persons who are Australian Protected Persons, are regarded as holding no real foreign citizenship, provided that they have not been granted the right to reside in Australia”.

The reason why persons who were Australian citizens by virtue only of their birth in Papua (persons such as the applicant and almost all other indigenous Papuans as at Independence Day) were regarded as holding no “real” foreign citizenship appears from what has been noted above. Although technically Australian citizens, under the Migration Act that citizenship did not of its own force give them the right to enter, or remain in, mainland Australia. To have a right of residence in Australia, they needed to apply for, and be granted, such a right. Hence the reference to a grant of a right of residence.

27. The Respondent also relied on the judgment of the Minister for Immigration and Multicultural and Indigenous Affairs v Walsh,^[19] where the Full Court observed that:

Section 64 prohibits dual citizenship except in the case of infants until the age of 19, at which time they must elect whether or not to retain their citizenship. No person who has any other “real citizenship” is entitled to become or remain a citizen of PNG. “Real” citizenship is defined by subs (4) to exclude Australian citizens and Australian Protected Persons who have no permanent right to reside in Australia – thus making eligible for Papua New Guinea citizenship all those born in Papua New Guinea prior to Independence ...

28. The Applicant’s father became an Australian citizen on the commencement of the 1948 Act. There is no evidence before the Tribunal to suggest that the Applicant’s father had a right to permanent residence in Australia, or that such right was ever granted to him. As such subsection 64(1) of the PNG Constitution does not operate to disapply subsection 65(1) in respect of the Applicant’s father. The Tribunal is satisfied on the evidence that the Applicant’s father became a PNG citizen on Independence Day.

The Applicant’s mother

29. On 22 June 2012, the Applicant’s mother made an application for Australian citizenship by descent, which was refused on 28 November 2013. In support of her application, she provided a Certificate of Birth Entry issued on 17 May 2012 in relation to her father^[20] (2012 Certificate). The 2012 Certificate shows that the Applicant’s mother’s paternal grandparents were of Papua New Guinean nationality.
30. On 21 June 2012, two of the Applicant’s mother’s children, Dian Kaki and Samson Kaki, made applications for Australian citizenship by descent, which were refused on 5 February 2014. Relevantly, on 29 January 2014, the Applicant, under the name Basua Wakenda sent e-mails to the Department claiming that his paternal grandmother was born in Suva, Fiji.
31. On 14 April 2014, the Applicant’s mother made an application for evidence of Australian citizenship. In her application form she indicated that her paternal grandfather, Waluma Yambi was born in PNG, but inconsistent with the 2012 Certificate, she claimed that her paternal grandmother, Kewanu Koi, was born in Suva, Fiji. She also claimed that her maternal grandparents were born in Nuku’alofa, Tonga. In support of her application, she provided a document issued on 10 February 2014 (2014 Certificate) that claimed to be a Certificate of Birth Entry in relation to her father.^[21] On 15 April 2014, the Applicant’s mother was issued with a notice stating that she was an Australian citizen.
32. In a Statutory Declaration of 11 July 2014,^[22] the Applicant’s mother indicated that she did not know the name and the date of birth of her paternal grandmother and that she “just gave her the name Kewanu for the record”. She stated that her grandmother was born in Fiji.
33. On 30 July and 4 September 2018, the Department wrote to the Applicant’s mother putting her on notice of consideration of the cancellation of the notice of evidence of Australian citizenship issued to her on 15 April 2014. She was given the opportunity to provide genuine documents to confirm the retention of Australian citizenship on PNG Independence Day
34. In a statutory declaration of 6 September 2018^[23] and in summary, the Applicant’s mother stated:
    • She was asked by the Department about the birth of her biological grandparents and she stated that what her deceased natural biological parents had told her, namely that her biological grandparents were born in Tonga and Fiji except her natural biological paternal grandfather, who was born in Papua New Guinea. She advised that she had no evidence that her natural biological grandparents were born in Tonga and Fiji. She promised that she would confirm in a Statutory Declaration, which she did in July 2014.
    • In the Statutory Declaration of July 2014, she told the Department everything she knew about her late natural biological grandparents, including heir places of birth; her natural biological paternal grandmother was born in Fiji, her natural biological maternal grandparents were both born in Tonga, and her natural biological paternal grandfather was born in Papua New Guinea.
    • She does not know the names or dates of birth of her natural biological grandparents and, therefore, their names and dates of births were given just for the record because I do not know the exact names and dates of birth of my natural biological grandparents. My natural biological paternal grandparent and material grandparents were Christian missionaries from Fiji and Tonga respectively to then east New Guinea island (now Papua New Guinea) according to my late natural biological parents.
    • She is willing to cooperate with the Department but she does not want to repeat previous responses.
35. The above Statutory Declaration does not explain the inconsistency between the 2012 Certificate and 2014 Certificate in relation to the place of birth of the Applicant’s mother’s paternal grandmother.
36. The Applicant’s mother did not respond to the Department’s request for documents relating to her paternal grandmother’s place of birth.
37. As noted by the delegate and contended in the Respondent’s SFIC, as well as oral submissions, there are the following concerns:
    • The Applicant’s mother’s application on 14 April 2014 for evidence of Australian citizenship included a certified copy of her father’s birth certificate which was issued on 10 February 2014. The certificate has a particular registration number which matches the one of the certificates issued on 17 May 2012 but it does not contain the security bar code, raising concerns about the accuracy of the information provided.
    • The document recorded the grandmother as being Kewanu KOI, and that her occupation is missionary, inconsistent with the subsistence farmer recorded on the earlier issued document and nationality Suva, Fiji as opposed to Papua New Guinea recorded on the earlier issued certificate, raising concerns about the accuracy of the information provided.
    • Although the assessing officer of the application found that she did not cease to be an Australian citizen on 16 September 1975, PNG Independence Day, the assessing officer made no reference to the inconsistent information provided by the mother.
    • In relation to the place of birth of the mother’s grandparents, she had claimed that the maternal grandparents were born in Tonga, and that her paternal grandfather was born in Papua New Guinea, but there remained a question as to where her paternal grandmother was born. The Applicant’s maternal grandfather’s birth certificate issued on 17 May 2012 shows her nationality as Papua New Guinea, indicating that she was born in PNG but the 2014 birth certificate records her nationality as Suva, Fiji. The Tribunal is satisfied that the inconsistency in the document raises concerns.
    • The Department attempted to verify the grandmother’s birth details through the Registrar of Births, Deaths and Marriages in Suva. On 11 August 2014 the Deputy Registrar advised that they could not locate a birth record for the grandmother after searching a range of the relevant dates. Moreover, the Department undertook searches of the National Archives of Australia (NAA) on-line records but was unable to identify any relevant records based on the information provided by the Applicant’s mother. Whilst the lack of information could be due to multiple factors, the Tribunal is satisfied that this raises concerns about the accuracy of the information relating the grandmother.
38. The Applicant’s mother did not seek merits or judicial of the delegate’s decision.
39. On the cumulative evidence and for the above noted concerns, the Tribunal is not satisfied that the 2014 Certificate contains accurate information. Consequently, the Tribunal finds that the Applicant’s mother’s paternal grandmother was born in PNG, consistent with the information contained in the 2012 Certificate. Accordingly, the Tribunal finds that the Applicant’s mother became a PNG citizen on Independence Day in 1975. There is no evidence before the Tribunal to suggest that the Applicant’s mother was granted a right to permanent residence in Australia, or that such right was ever granted to her. By reason of subsections 64(4)(a)(i) and (b) of the PNG Constitution, the Applicant’s mother had no real foreign citizenship.

Loss of Australian citizenship

40. Regulation 4 of the Papua New Guinea Independence (Australian Citizenship) Regulations 1975 (Cth), which was made under the  Papua New Guinea Independence Act 1975  (Cth), 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.

41. As discussed in the Minister for Immigration and Multicultural and Indigenous Affairs v Walsh,^[24] “[t]he 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.”
42. For the stated reasons, the Tribunal has found that each of the Applicant’s parents was an Australian citizen immediately before Independence Day, within the meaning of the 1948 Act, and that on Independence Day, each parent became a citizen of PNG in accordance with section 65 of the PNG Constitution. Consistent with reg 4 of the Papua New Guinea Independence (Australian Citizenship) Regulations 1975 (Cth), the Tribunal finds that on Independence Day, each of the Applicant’s parents ceased to be an Australian citizen. Consequently, the Tribunal finds that at the time of his birth, the Applicant did not have a parent who was an Australian citizen. Therefore, he does not meet the requirements of subsection 16(2)(a).
43. For the above reasons, the Tribunal affirms the delegate’s decision to refuse the approval of the application for Australian citizenship by descent.

DECISION

44. The Tribunal affirms the decision under review.

...................................[SGD].....................................
Associate

Dated: 19 July 2024

^[1] Ex 6, 36.

^[2] Ex 6, 35.

^[3] Ex 6, 36.

^[4] Ex 1; Ex 6, 18-21.

^[5] Ex 7, 27.

^[6] Ex 8, 14.

^[7] Ex 8, 12.

^[8] Ex 8, 13.

^[9] Ex 7, 18.

^[10] Ex 5, 11 – as referred to by the Delegate.

^[11] Subsection 6(1)(a) of the 1920 Act.

^[12] PNG Independence Day on 16 September 1975.

^[13] Ex 7, 18.

^[14] Ex 7, 19.

^[15] Ex 8, 68.

^[16] Ex 8, 67.

^[17] Ex 1, 7.

^[18] Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Ame [2005] 222 CLR 439 [6], [11]-[12].

^[19] Minister for Immigration and Multicultural and Indigenous Affairs v Walsh (2002) FCR 31, [31].

^[20] Ex 7, 28.

^[21] Ex 7, 67.

^[22] Ex 7, 41.

^[23] Ex 7, 55.

^[24] Minister for Immigration and Multicultural and Indigenous Affairs v Walsh (2002) FCR 31, [12].