When Australian woman Catherine Bird had her passport renewal declined and citizenship revoked two years ago, it revealed a failing in our constitution and of the sovereign rights of Australia's citizens. It has serious implications for both citizens born in external Australian territories and those with dual citizenship.
An aged-care nurse assistant from Cairns, Ms Bird, 62, is not a criminal or a terrorist, but has gone into hiding after a bridging visa expired this week and she was threatened with detention and deportation by the Department of Immigration.
Australian passport 'incorrectly issued'
Ms Bird is the niece of the famous Australian aviator Nancy Bird-Walton who has a Sydney metro tunnel named after her. Ms Bird is one six children of decorated Australian WWII veteran John Bird who from the age of 15 served in both the U.S. Army and Australian merchant vessels during WWII in the South Pacific.
After the war John Bird married Mary Sale, a Papuan woman and they lived in Port Moresby. All of Mr Bird's children were born in Papua prior to PNG's independence in 1975, when it was still an Australian Protectorate, which automatically granted them Australian citizenship at birth.
All six siblings attended boarding school in Charters Towers, Queensland, and all have lived in Australia since.
Ms Bird has had an Australian passport since she was 18 and was issued a certificate of Australian Citizenship in 1985. She has been living in Australia since the age of six.
When Ms Bird's citizenship was revoked in 2017, for being “incorrectly issued,” Immigration informed her she needed to apply for a Resident Return Visa (RRV) as a beginning process to get her citizenship. However Ms Bird is refusing on the grounds that she has been an Australian citizen her whole life.
“I was absolutely gob-smacked. I have lived here for 56 years, this is my home I haven't lived anywhere else including PNG,'” Ms Bird said she was told by Immigration they may knock down her door down, detain her and send her back to a country where she has not been since she was six years old.
“I've worked here, I've paid taxes here, I've voted here – I'm a good citizen, I've never even had a parking ticket. They said the department made a mistake and issued me a citizenship certificate wrongly.
So somebody made a mistake which I think they should fix, why should I have to fix it?” she said.
Ms Bird was told she had to apply for a RRV, but she has refused, “because I haven't returned from anywhere, I've been in Australia the whole time.
But they said I had to apply for that visa and if I get it apply for my citizenship and if I don't get it then I have to go back to where I came from, but I don't come from anywhere but here – it’s ridiculous.
If I apply for that visa when I haven't returned from somewhere, then I am telling a big lie, so I don't want to do it.”
Ms Bird was told she was issued a resident visa in 1994 to stay here which expired in 2006.
“But I knew nothing of it, so I said show it to me, give me a copy – I have no record of this.”
So Ms Bird was issued the visa without her knowledge, a visa that she didn't even know she had or needed, and when that visa expired she was unbeknownst to her in breach on immigration.
'No man can stand in more than one canoe'
While the Department of Home Affairs have refused to comment on the case, Federal Member for Leichardt Warren Entsch said: “there's no way she will ever be deported,” and that “her bridging visa has been automatically extended for six months,” and that will continue to be as long as she delays to apply for her RRV.
However Ms Bird said today that Immigration told her, her bridging visa is only valid until mid January.
All of Ms Bird's siblings have had to go through a similar process, and her older sister Mary-Anne Bird, who has served for three decades in the Australian army reserves, has also been instructed to apply for a RRV, which she has done. It is Catherine Bird who is refusing and challenging the system.
While being born in Papua, when still an Australian Protectorate automatically granted citizenship at birth, after 1975 and subsequent law changes by the PNG government is where things became complicated, where PNG lawmakers decided dual citizenship was not allowed, or that “no man, it is said, can stand in more than one canoe.”
Then the Australian Government created legislation in 1975 that removed Australian citizenship from anyone who became a PNG citizen on Independence Day, including Papuans living in Australia and without them necessarily be aware of the change.
Before Independence Day, those who were born in Papua would generally have Australian citizenship derived from the Nationality and Citizenship Act 1948, later renamed the Australian Citizenship Act 1948.
University of Queensland Associate Professor and Reader in Law, Peter McDermott wrote in a 2009 paper about the Papuan problem. He said:
“The relevant Australian Citizenship Instructions that were operative at the time of Independence outlined the circumstances in which a Papuan would be granted the right of permanent residence on the Australian mainland:
Right of permanent residence was automatic for children born in Papua of non-Indigenous descent. Those of Indigenous descent were required, as a matter of policy determined by Cabinet, to apply for the right of permanent residence in mainland Australia. Government policy gave the Minister the discretion to grant the right of permanent residence to such persons on application if they had been bought up in a European manner, had English as their principal language and were European in outlook.
Dr Peter Prince, ANU law expert said in a 2005 paper on this that “the second class status of Australian ‘citizens’ in external territories such as Papua is a reminder of the prejudiced attitudes of Australia’s past, including the White Australia policy.”
So Ms Bird is fighting the remnants of these racially biased laws, but she is not the first person to challenge this immigration greyzone. An unsuccessful 2005 High Court challenge by a Papuan born Australian led constitutional law expert Genevieve Ebbeck to say at the time:
“… an Australian citizen has no constitutionally guaranteed right, deriving from his/her citizenship, to enter Australia … If it is correct to say that an Australian citizen possesses no right to enter and remain within Australia, the fundamental worth of his or her citizenship becomes questionable.”
The 2005 case has implications for Australian citizens with dual Nationality and from the external territories Cocos (Keeling) Islands, Christmas Island and Norfolk Island.
Facing deportation from Australia for overstaying his visa, Mr Amos Bode Ame, born in 1967 argued that he was an Australian citizen by birth and had never lost this status.
However the High Court declared that people born in Papua were never ‘full’ or ‘real’ Australian citizens, and that their inferior form of Australian nationality disappeared when Papua and New Guinea became one independent nation in 1975.
One of the Judges on the case, Justice Kirby noted that nobody asked if he wanted to give up his Australian citizenship. He said at the time under Australian law he lost this automatically on PNG independence:
“…without the specific knowledge or consent of the applicant, without renunciation or wrongdoing on his part, notice to him, due process or judicial or other proceedings, he was purportedly deprived of his Australian citizenship.”
Ms Bird, who is currently seeking legal advice, is steadfast in not wishing to apply for a visa to country she believes she is a citizen of, albeit a second class one, and this may well again challenge the constitution's position on what a citizen is and what rights it provides.