Where respondent is born in the Australian external territory of Papua prior to Independence Day whose parents are both naturalised Australian citizens, did the respondent become a citizen of Papua New Guinea (PNG) on Independence Day?
Minister for Home Affairs v Lee [2021] FCAFC 89 (31 May 2021)
Intro:-
This is an appeal against declaration that the respondent is an “Australian citizen” within meaning of s 4(1)(b) of the Australian Citizenship Act 2007 (Cth)
Facts:-
Troyrone Zen Lee was born to naturalised Australian citizen parents in the then Australian external territory of Papua (Papua) on 20 May 1975. Australia relinquished its sovereignty over that territory and its responsibilities in respect of the then United Nations Trust Territory of New Guinea (New Guinea), then jointly administered with Papua by Australia as the Territory of Papua and New Guinea, at midnight on 15 September 1975.
An Australian passport was first issued to Mr Lee in May 1979. That passport carried an annotation that he had previously travelled on his mother’s, Mrs Amy Sin Yee Lee (Mrs Lee), passport (an Australian passport issued on 7 May 1974). Thereafter, both as a child and as an adult, Mr Lee was issued with a succession of Australian passports. The issuing of these passports to him was consistent with advice given to Mrs Lee, after Independence Day, by both the Australian High Commission in Port Moresby and the then Department of Immigration in Brisbane that her son was an Australian citizen.
In December 2016, when he sought again to renew his Australian passport, Mr Lee was officially informed that this was not possible, as he was not an Australian citizen. The advice then given to him was that he had ceased to be an Australian citizen on Independence Day and that he had thereupon become a citizen of Papua New Guinea.
Mr Lee was officially advised by Papua New Guinea’s Deputy Chief Migration Officer that he was not a citizen of that country. The result of this difference of governmental understanding is that Mr Lee is, quite literally, betwixt and between, in jeopardy of being stateless.
What occurred is that Mr Lee instituted a proceeding to which the Minister was respondent in this Court’s original jurisdiction in which he sought a declaration that he is an “Australian citizen” within the meaning of s 4(1)(b) of the Australian Citizenship Act 2007 (Cth) (2007 Act).Mr Lee secured the declaration for which he applied: Lee v Minister for Home Affairs [2020] FCA 487.
Issues:-
a) Whether the respondent became a citizen of Papua New Guinea (PNG) on Independence Day by virtue of s 64 and s 65 of the PNG Constitution and regulation 4 of the Papua New Guinea Independence (Australian Citizenship) Regulation 1975 (Cth).
b) Whether the respondent would have been an “immigrant” for the purpose of s 6(1) of the Migration Act 1958 (Cth) as at 16 September 1975.
Analysis:-
We interpolate that Mr Lee is of Chinese descent. His parents (and paternal grandparents for that matter) offer a paradigm example of those of such descent who, before Independence, had access to Australian citizenship by an exercise of Ministerial discretion under the Australian Citizenship Act 1948 (Cth) and chose to acquire such citizenship.
What follows from all of the foregoing is that, at the time of Mr Lee’s birth in 1975 in pre-Independence Papua, Mrs Lee was not an “immigrant”. Nor was she one on or after Independence. She was entitled, as of right, to enter mainland Australia (or Tasmania) and to reside in any of these places permanently.
The learned primary judge was correct to so conclude. She needed no grant of an entry permit under the Migration Act so to do. To the extent that any “grant” was necessary, that right was granted to her under Australian law by virtue of her status as an Australian citizen. There was no suggestion in this case that, in the circumstances, some other Australian statute prohibited or qualified her right as a citizen to enter and remain indefinitely in Australia. It is neither necessary nor desirable therefore to embark on any consideration of the legislative competence of the Parliament to enact such a statute.
The same is true of Mr Lee’s father. As at the time of Mr Lee’s birth in 1975, his father had, on the evidence, a domicile of origin in Australia, not in any foreign country. He never acquired a domicile of choice in the newly independent Papua New Guinea. No other conclusion is possible on that evidence. Mr Lee’s father was, by naturalisation, part of the whole Australian community. Before Independence the father lived and worked in a territory administered by Australia. Only for occupational reasons did he remain in the newly independent Papua New Guinea until 1982. He, too, was not an “immigrant”.
For the reasons given above, Mr Lee was always part of the Australian community. He was not at Independence, and for that matter never has been, an “immigrant”. Because he was not at Independence an “immigrant”, he had a right to permanent residence in Australia without any need for the grant to him of an entry permit. That was so irrespective of whether, as it came to be in October 1975, his name was included in his mother’s Australian passport. All that inclusion did was to evidence a status he already had. Further, all that the absence of entry permits in his mother’s Australian passport, or his own when issued, and the presence of Papua New Guinea entry permits in each, did was to evidence a correct understanding both by the Australian and Papua New Guinea immigration officials of the day as to the position under Australian law and, correspondingly and harmoniously, under PNG citizenship law as specified in the PNG Constitution.
Conclusion:-
a) The appeal be dismissed.
b) The appellant pay the respondent’s costs of and incidental to the appeal, to be fixed by a registrar if not agreed.
