FEDERAL COURT OF AUSTRALIA

Doumit v Commonwealth [2005] FCAFC 166

CONSTITUTIONAL LAW – s 51(xix) – applicant children born in Australia – applicant children not Australian citizens within meaning of Australian Citizenship Act 1948 (Cth) – whether s 198 of Migration Act 1958 (Cth) valid – whether Australian Citizenship Act 1948 valid – whether applicants subject to aliens power

Constitution, s 51(xix)

Australian Citizenship Act 1948 (Cth)

Migration Act 1958 (Cth)

Federal Court Rules, Order 20, r 2(1)(a)

Doumit v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 666

Koroitamana v Commonwealth [2005] FCAFC 61

Shaw v Minister for Immigration and Multicultural Affairs (2003) 203 ALR 143; (2003) 78 ALJR 203; [2003] HCA 72

Singh v Commonwealth (2004) 209 ALR 355; (2004) 78 ALJR 1383; [2004] HCA 43

GEORGE DOUMIT, an infant by his next friend ZAHKIA DOUMIT & ANOR v COMMONWEALTH OF AUSTRALIA & ANOR

NSD 883 OF 2005

MARIA DOUMIT, an infant by her next friend ARPINE DEMIRJIAN DOUMIT v COMMONWEALTH OF AUSTRALIA & ANOR

NSD 882 OF 2005

MEMA YACOUB, an infant by his next friend LINDA HABIB YACOUB & ANOR v COMMONWEALTH OF AUSTRALIA & ANOR

NSD 874 OF 2005

JOHNATHAN LEON SUAREZ, an infant by his next friend LILLIANA MARIA SUAREZ RESTREPO v COMMONWEALTH OF AUSTRALIA & ANOR

NSD 881 OF 2005

VERAMU NADIKIDIKI ILATI CAKAUNITABUA, an infant by his next friend LUCY JANE TURAGA & ORS v COMMONWEALTH OF AUSTRALIA & ANOR

NSD 873 OF 2005

VINCENTIUS BIMA YULIARDHYANTO, an infant by his next friend LUSIANA PERMATA DEWI v COMMONWEALTH OF AUSTRALIA & ANOR

NSD 875 OF 2005

JASON MATTHEW VEDY, an infant by his next friend VENNY WINARTA v COMMONWEALTH OF AUSTRALIA & ANOR

NSD 886 OF 2005

JI HEE HWANG, an infant by her next friend YOUNG HEE HAN v COMMONWEALTH OF AUSTRALIA & ANOR

NSD 876 OF 2005

MARY ISSA, an infant by her next friend SANIOURA ISSA (also known as ELIAS) v COMMONWEALTH OF AUSTRALIA & ANOR

NSD 884 OF 2005

CHELSIE RAHMADHINI NOER, an infant by her next friend HOESNI SYABIL NOER & ANOR v COMMONWEALTH OF AUSTRALIA & ANOR

NSD 1059 OF 2005

VIRISETA VULA TALEI MARAWA, an infant by her next friend ADI BERA MARAMANIVULA MARAWA v COMMONWEALTH OF AUSTRALIA & ANOR

NSD 1060 OF 2005

BLACK CJ, WILCOX and LANDER JJ

19 AUGUST 2005

SYDNEY

THE COURT ORDERS THAT:

1.      Each application for leave to appeal be dismissed.

2.      In each case, the applicants’ next friend pay the respondents’ costs of the application.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

REASONS FOR JUDGMENT

THE COURT:

1                     There are eleven separate applications before the Court for leave to appeal from orders summarily dismissing eleven separate proceedings.  The proceedings were dismissed pursuant to Order 20, r 2(1)(a) on the ground that no reasonable cause of action was disclosed.  For the reasons that follow, leave to appeal should be refused in each case.

2                     Each of the proceedings that now stands dismissed was brought on behalf of an infant child or children.  Each child was born in Australia.  The oldest applicant is nine years old and the youngest recently had his first birthday.  In nine of the applications, each parent was born in another country and is not, and has not been, an Australian citizen.  In the other two applications, the country of birth does not appear from the material before the Court, but it is common ground that the parents are not, and have not been, Australian citizens.  It is also common ground that, as a consequence, none of the applicants has acquired Australian citizenship by virtue of the Australian Citizenship Act 1948 (Cth) (the Citizenship Act).

3                     In each proceeding, the applicants sought relief by way of declaration and an injunction restraining the Respondent Minister from removing them from Australia.

4                     In essence, each applicant contends that s 198 of the Migration Act 1958 (Cth) (the Migration Act), which provides for the removal from Australia of unlawful non-citizens, is wholly invalid because its operation turns upon the term “unlawful non-citizen” and because, so it is asserted, the Parliament lacks legislative power over “citizenship”.

5                     The applicants correctly accept that leave to appeal is required.  It is well established that an order summarily dismissing proceedings on the ground that no reasonable cause of action has been disclosed is interlocutory and leave to appeal from such an order is accordingly required: Marketing Advisory Services (MAS) v Football Tasmania Ltd [2002] FCAFC 165 at [29]-[30] (Sackville, Kenny and Allsop JJ).

6                     In the “general run of cases”, the considerations identified in Decor Corp v Dart Industries Inc (1991) 33 FCR 397 will govern the decision to grant or refuse leave to appeal.  Those considerations are first, whether in all the circumstances the decision is attended by sufficient doubt to warrant its being reconsidered by the Full Court, and second, whether substantial injustice would result if leave were refused, supposing the decision to be wrong.  As the primary Judge recognised, the jurisdiction to terminate an action is to be sparingly employed and “great care must be exercised to ensure that under the guise of expeditious finality a plaintiff is not improperly deprived of his opportunity for the trial of his case by the appointed tribunal”: General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125 at 130 (Barwick CJ).

7                     It is well established that the provisions of the Migration Act, in so far as they apply to aliens, are within the “naturalization and aliens” head of legislative power conferred by s 51(xix) of the Constitution.  In their joint reasons in Singh v Commonwealth (2004) 209 ALR 355 at 402, [154] Gummow, Hayne and Heydon JJ held that the plaintiff in that case was an alien within the meaning of that term in the Constitution and that it followed that “s 198 of the Migration Act can be supported in its operation with respect to the plaintiff as a law with respect to naturalization and aliens.”

8                     Despite this clear statement in the joint judgment in Singh about the constitutional foundation for s 198 of the Migration Act, the applicants dispute the validity of that provision in its application to them.  They do so by seeking to distinguish the position of aliens from that of non-citizens.  The latter, they contend, fall outside Commonwealth legislative power.  But once it is accepted that citizenship is the obverse of alienage, it follows that an alien is a non-citizen for the purposes of the Migration Act; the terms are synonymous.  So, in Shaw v Minister for Immigration and Multicultural Affairs (2003) 203 ALR 143 at 144, [2] Gleeson CJ, Gummow and Hayne JJ (Heydon J agreeing) stated that:

The power conferred by s 51(xix) supports legislation determining those to whom is attributed the status of alien; the Parliament may make laws which impose upon those having this status burdens, obligations and disqualifications which the Parliament could not impose on other persons.  On the other hand, by a law with respect to naturalization, the Parliament may remove that status, absolutely or upon conditions.  In this way, citizenship may be seen as the obverse of the status of alienage.

In Singh, Gleeson CJ (at [4]) and Kirby J (at [265]) confirmed this relationship between the status of alienage and the position of non-citizens in Australia.

9                     Once this synonymity is recognised, it is immediately apparent that existing – and binding – authority determines the outcome of these proceedings.  The impugned provision of the Migration Act is supported in its operation with respect to the applicants as being a law with respect to naturalization and aliens.  In Singh, Kirby J (at [272]) remarked of the relationship between the Migration Act, the Citizenship Act and the Constitution that:

at this time, the Citizenship Act denies [the plaintiff] Australian citizenship.  That provision of the Citizenship Act is valid; based on the aliens power.  In consequence, the Migration Act may make provision for her removal as an alien “non-citizen”.

The Chief Justice’s reasons (at [4]) were more broadly stated, but no less emphatic in their rejection of the proposition now advanced:

I have previously stated my view that, subject to a qualification, Parliament, under paras (xix) and (xxvii) of s 51, has the power to determine the legal basis by reference to which Australia deals with matters of nationality and immigration, to create and define the concept of Australian citizenship, to prescribe the conditions on which such citizenship may be acquired and lost, and to link citizenship with the right of abode.  In that regard, Brennan, Deane and Dawson JJ said in Chu Kheng Lim v Minister for Immigration, Local Government and Ethnic Affairs, that the effect of Australia’s emergence as a fully independent sovereign nation with its own distinct citizenship was that alien in s 51(xix) of the Constitution has become synonymous with non-citizen.

10                  The observations of Gleeson CJ just cited, were relied upon by the Full Court of this Court in Koroitamana v The Commonwealth [2005] FCAFC 61 at [4], when the Court held that:

Parliament has the power to determine the legal basis for, and create the concept of, Australian citizenship: Singh at 357 [4] (per Gleeson CJ).  That power cannot, however, be at large and the restriction is to be found by identifying, by the appropriate method of constitutional interpretation, what class or classes of people could not answer the description of aliens within the meaning of s 51(xix) of the Constitution.

It is therefore perfectly clear that the provisions of the Migration Act and the Citizenship Act have a firm constitutional foundation and are valid in their application to the applicants.  There is no substance in the contentions to the contrary.  As the learned primary Judge pointed out, the Citizenship Act in its application to the applicants is, in one sense, no more than a “dictionary”: Doumit v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 666 at [11].

11                  It is, therefore, strictly unnecessary to say anything of the applicants’ further contention that, should a legislative power over citizenship be recognised, then the Court should recognise that there are extra-constitutional limitations on such a power deriving from international law.  This argument would face the formidable obstacle presented by established and often repeated authority of the High Court that the Constitution is not to be read as being subject to international law: Al-Kateb v Godwin (2004) 208 ALR 124 at 140, [63] (McHugh J); Kartinyeri v Commonwealth (1998) 195 CLR 337 at 384-385, [98] (Gummow and Hayne JJ); Horta v Commonwealth (1994) 181 CLR 183 at 195 (Mason CJ, Brennan, Deane, Dawson, Toohey, Gaudron and McHugh JJ); Polites v The Commonwealth (1945) 70 CLR 60 at 78 (Dixon J).

12                  The attack on the validity of the Migration Act and the Citizenship Act in their application to these applicants is without substance.  There clearly being no entitlement to the relief sought, there was not a “real question to be determined” in these proceedings: Dey v Victorian Railways Commissioners (1948) 78 CLR 62 at 91 (Dixon J).  The summary dismissal of the proceedings therefore cannot have occasioned any injustice.  There is no reason to doubt the proper exercise of the primary Judge’s discretion to dismiss these applications.

13                  It is for these reasons that each application for leave to appeal must be dismissed with costs.

Associate:

Dated:              19 August 2005