PRESENT CIRCUMSTANCES MANIFESTATION – Citizenship Issue


The mother of the applicant, Ms Agnes Kuster, was born in Papua New Guinea (PNG) on September 3, 1952. Records confirm her citizenship in PNG at the time of the applicant’s birth in October 1978. She married the applicant’s father, Mr Richard Halden Leonard Kuster, a PNG-born individual who became an Australian citizen by descent in 1958. He has been a continuous resident in Australia since September 9, 1983.

The applicant has an extensive history of criminal offenses in Australia spanning from November 1993 to June 2018, totaling 25 years. He has faced sentencing on 39 occasions, receiving imprisonment terms in 14 instances. Notably, some caution is necessary in assessing the applicant’s offenses, as per the High Court’s judgment in Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v Thornton [2023] HCA 17 (‘Thornton’). Thornton establishes that offenses committed as a minor, for which there is no recorded conviction, should not be considered in assessing the overall conduct.

The applicant received two warnings about potential visa cancellation due to further offenses, issued on July 6, 2011, and August 8, 2014. Despite these warnings, his criminal activities persisted. Consequently, his Transitional Permanent Visa was mandatorily canceled on December 21, 2017, under section 501(3A) of the Migration Act 1958 (Cth). After voluntarily departing to PNG, he was denied entry, compelling his return to Australia. The Minister personally refused to revoke the visa cancellation on April 14, 2021.

ISSUES

Two main issues are before the Tribunal:

  1. Was the applicant ever a national or citizen of any country?
  2. Should the Tribunal, standing in the shoes of the Minister, be satisfied that the applicant is of good character?

EVIDENCE FROM THE APPLICANT’S MOTHER

Ms Agnes Kuster, the applicant’s mother, provided both written and oral evidence. She confirmed her understanding of her written statement made on March 20, 2023, for the purpose of the applicant’s Australian citizenship application. During cross-examination, she affirmed her family’s Manus Island origins in PNG and recalled the applicant’s birth on Manus Island in 1978. Ms. Kuster, who applied for a PNG passport in 1981, traveled to Australia in 1983 with her children, seeking permanent residence.

CITIZENSHIP OF APPLICANT’S MOTHER

The contention that Ms. Kuster’s PNG citizenship is unclear due to doubts arising from the timing of PNG’s independence is refuted. Her initial travel to Australia with a PNG passport, including her children, and the confirmation of her PNG citizenship on the passport and permanent residency application form dispel such doubts.

APPLICANT’S MOTHER AS A TORRES STRAIT ISLANDER

Contrary to the applicant’s claim, evidence indicates that Ms. Kuster is not a Torres Strait Islander. Her family’s Manus Island roots and confirmation from the applicant’s father refute this assertion.

FINDINGS

  1. The evidence establishes that the applicant was born in PNG, and his mother was a PNG citizen at the time of his birth, making him a citizen of PNG.
  2. The Tribunal is not satisfied that the applicant is of good character based on a substantial criminal history, a long association with drugs, and questionable explanations and relapses.

CONCLUSION

As a result of these findings, the applicant does not meet the criteria for Australian citizenship under section 16 of the Act. The decision under review, made on December 15, 2022, is affirmed.

Written by Ross Ahmadzai

17 Nov, 2023

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