FEDERAL COURT OF AUSTRALIA

SZRTN v Minister for Immigration and Border Protection [2015] FCAFC 110

THE COURT ORDERS THAT:

1.    The appeal is dismissed.

2.    The Appellant is to pay the costs of the First Respondent as agreed or assessed.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

1    The Appellant was born in 1981 in Samoa and arrived in Australia in 1987 in the company of his father. Within months he was abandoned by his father and thereafter lived with his uncle and aunt until he was 13 years old. He then lived on the streets.

2    He claims to be an Australian citizen.

3    Before the primary Judge, the Appellant sought to contend that he fell within the definition of an “Australian citizen” in s 4 of the Australian Citizenship Act 2007 (Cth) (the “2007 Act”) either because:

    for the purposes of s 4(1)(a), he was an “Australian citizen under Division 1 … of Part 2” of that Act by reason of being a “person … found abandoned in Australia as a child” within the meaning of s 14 within Division 1;

or, in the alternative:

    for the purposes of s 4(1)(b), he was an “Australian citizen under the Australian Citizenship Act 1948 immediately before the commencement date” by reason of falling within s 5(3)(b) of the Australian Citizenship Act 1948 (Cth) (the “1948 Act”).

The primary Judge rejected both arguments: SZRTN v Minister for Immigration and Border Protection [2015] FCA 305.

4    The Notice of Appeal asserts that the primary Judge erred in construing both s 14 of the 2007 Act and s 5(3)(b) of the 1948 Act. The Appellant appeared before the Court unrepresented and provided a written outline of the submissions upon which he sought to rely. Neither the Notice of Appeal nor those written submissions had been drafted by the Appellant. The Appellant was not in a position to do anything other than rely upon the written submissions; he could provide no assistance as to either the errors said to have been committed by the primary Judge in his construction of the two statutory provisions primarily in issue or why an earlier decision of this Court in Nicky v Minister for Immigration and Border Protection [2015] FCA 174 was “plainly wrong”.

5    The appeal is to be dismissed.

Australian Citizenship Legislation

6    Prior to the commencement of the 2007 Act, s 5(3)(b) of the 1948 Act provided:

Interpretation

…

(3)    For the purposes of this Act:

…

(b)    a person who, when a child, was found abandoned in Australia shall, unless and until the contrary is proved, be deemed:

(i)    to have been born in Australia;

…

(iii)    if born on or after 6 May 1966 and before the day on which the Australian Citizenship Amendment Act 1986 comes into operation — to have been, at the time of birth, a person to whom subsections 10(2) and (3) of this Act, as in force at that time, did not apply; …

7    The 2007 Act repealed the 1948 Act. The 2007 Act commenced on 1 July 2007.

8    Section 4 of the 2007 Act now defines an “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.

Section 14 of the 2007 Act provides as follows:

Citizenship for abandoned children

A person is an Australian citizen if the person is found abandoned in Australia as a child, unless and until the contrary is proved.

9    Facts similar to those in the present appeal arose for consideration in Nicky v Minister for Immigration and Border Protection [2015] FCA 174. It was there concluded that the claim to Australian citizenship also failed. In respect to s 14 of the 2007 Act, it was there concluded “that the 2007 Act, properly construed, does not apply to a child who was found abandoned prior to 1 July 2007”: [2015] FCA 174 at [25]. It was further concluded that the Appellant in that case could bring himself within neither s 4(1)(b)(i) of the 2007 Act nor s 5(3)(b) of the 1948 Act. For the purposes of s 5(3)(b) of the 1948 Act, it was concluded that the “contrary” was proven by the birth certificate showing the Appellant to have been born in Indonesia: [2015] FCA 174 at [38].

10    In the present proceeding, but subject to two reservations, the primary Judge expressed agreement with the reasoning in Nicky, supra.

The absence of appellable error

11    The facts of the present case are relevantly indistinguishable from those in Nicky.

12    Although the primary Judge in the present case thought that it was “possible to read [s 16] as having, in some senses, a retrospective operation”, his Honour interpreted “s 16 such that it only applies to applications made after” 1 July 2007: [2015] FCA 305 at [10]. Subject to this reservation, his Honour otherwise expressed agreement with the reasoning in Nicky that s 14 did not apply to a child found abandoned prior to 1 July 2007. In Nicky it was concluded:

[24]    According to its terms, s 14 could readily be applied to the facts presented by the Appellant. He is a person who was “abandoned in Australia as a child ...”. And it is open to contend that it is not “necessary” to work out whether he was an Australian citizen for the purposes of s 4(2). If s 14 applies according to its terms, it is not “necessary” to work anything else out.

[25]    But it is respectfully concluded that the 2007 Act, properly construed, does not apply to a child who was found abandoned prior to 1 July 2007.

[26]    The starting point for such a conclusion is the fact that an Act does not generally have “retrospective operation”: Maxwell v Murphy (1957) 96 CLR 261 at 267. Dixon CJ there summarised the common law position as follows:

The general rule of the common law is that a statute changing the law ought not, unless the intention appears with reasonable certainty, to be understood as applying to facts or events that have already occurred in such a way as to confer or impose or otherwise affect rights or liabilities which the law had defined by reference to the past events ...

It is nevertheless also recognised that it would not be giving a “retrospective effect” to an Act to conclude that an Act may “create” new rights by reference to past events: Coleman v The Shell Company of Australia Ltd (1943) 45 SR (NSW) 27 at 31. Jordan CJ there thus observed:

Upon a consideration of the authorities, I think that, as regards any matter or transaction, if events have occurred prior to the passing of the Act which have brought into existence particular rights or liabilities in respect of that matter or transaction, it would be giving a retrospective operation to the Act to treat it as intended to alter those rights or liabilities, but it would not be giving it a retrospective operation to treat it as governing the future operation of the matter or transaction as regards the creation of further particular rights or liabilities.

[27]    But such general propositions only provide the starting point for any process of statutory construction. Ultimately, any conclusion is necessarily best guided by the terms of the legislation itself.

[28]    In the present proceeding, it is respectfully concluded in respect to the rights of an “abandoned” child that the terms of the 2007 Act expose a legislative intent that:

•    the 1948 Act is to apply to facts and circumstances that precede 1 July 2007; and that

•    the 2007 Act is to apply to facts and circumstances that post-date 1 July 2007.

Such an intent is discernible from both the general structure of the 2007 Act and, more specifically, from the terms of ss 4(2) and 14.

[29]    Insofar as the general structure of the 2007 Act is concerned, that Act reflects a more detailed consideration of those means whereby Australian citizenship can be acquired – varying from birth in Australia by an Australian parent, through to citizenship by way of application. The 2007 Act also expressly seeks to regulate the concept of citizenship by providing for the means by which citizenship may be lost. The 1948 Act, by way of contrast, did not attempt such detailed prescription and focussed more upon citizenship by reason of birth.

[30]    More specifically, and notwithstanding the otherwise wide language employed in s 14 of the 2007 Act, that section – and the Act as a whole – is to be read in the context that s 4 expressly contemplates that there remain circumstances in which it is “necessary to work out if a person was an Australian citizen at a time before” 1 July 2007. Contrary to the submission on behalf of the Appellant, s 4(2) is not confined in its operation to such provisions as ss 12(1)(a) and 16(2)(a) and (3)(a) of the 2007 Act.

Subject to the reservation expressed by the primary Judge in respect to s 16, which does not arise on the facts here, concurrence is expressed with both his Honour’s reasons and the reasoning in Nicky.

13    With respect to the prospect that an abandoned child who could not avail himself of s 14 could nevertheless possibly bring himself within the ambit of s 5(3)(b) of the 1948 Act, in Nicky it was relevantly concluded:

[37]    Section 10(1) of the 1948 Act could not apply for the simple reason that the facts precluded any finding that the Appellant was born in Australia.

[38]    Nor could s 5(3)(b)(i) apply to the Appellant. For the purposes of s 5(3)(b)(i), the “contrary” was proven by the birth certificate showing the Appellant to have been born in Indonesia.

[39]    The phrase in s 5(3)(b), “until the contrary is proved”, is capable of referring to each of the elements thereafter set forth in s 5(3)(b). Section 5(3)(b) is not to be construed such that the phrase “until the contrary is proved” only qualifies the phrase “found abandoned in Australia”. Contrary to the submission advanced on behalf of the Appellant, there is no reason why the phrase “until the contrary is proved” cannot apply to s 5(3)(b)(ii) to (iv) equally as well as to s 5(3)(b)(i). An assertion, for example, that ss 10(2) and (3) of the 1948 Act did or did not as a matter of fact apply to a person is equally as capable of being proven erroneous as is a claim that the person was born in Australia.

With reference to the same argument in the present proceeding, the primary Judge rejected that argument as follows:

[19]    That argument assumes that ‘the contrary’ qualifies the words ‘found abandoned in Australia’. I accept that the provision is capable of supporting that construction. It is also capable of supporting a construction where ‘the contrary’ refers to the contrary of ‘born in Australia’. The provision is, therefore, ambiguous.

[20]    The former construction, however, makes no sense. It would result in s 5(3)(b) effectively reading:

‘a person who, when a child, was found abandoned in Australia shall, unless it is shown that he or she was not found abandoned in Australia, be deemed:

(i) to have been born in Australia...’

[21]    Such a reading has the consequence that the initial phrase becomes redundant …

…

[24]    In this case, the applicant’s evidence is that he was born in Samoa on 25 October 1981. Accordingly, s 5(3)(b) did not deem him to have been born in Australia and s 10(1) did not, therefore, make him an Australian citizen under the Australian Citizenship Act 1948. Consequently, he does not satisfy s 4(1)(b) of the Australian Citizenship Act 2007 either. The applicant is not an Australian citizen. It follows that his claims for relief must be refused and his application dismissed with costs.

The primary Judge went on to “reserve” his position as to whether s 5(3)(b) had been inserted by way of amendment to avoid the possibility of “stateless persons”. This is the second reservation made by the primary Judge.

14    Again, no appellable error is discernible in the primary Judge’s conclusions in respect to s 5(3)(b) of the 1948 Act or his concurrence with the reasons expressed in Nicky for reaching a like conclusion.

15    An issue raised in the written submissions relied upon by the Appellant, and an issue not canvassed either before the primary Judge or before the Court in Nicky, was the submission as to the potential relevance of the United Nations Convention on the Rights of the Child, opened for signature 20 November 1989, 1577 UNTS 3 (entered into force 2 September 1990) to the “true and proper construction of both the 1948 and 2007” Acts. The short answer to this further submission is that no appellable error is exposed by the primary Judge not resolving a submission never advanced for consideration. The longer answer is that that Convention has no application to the “automatic acquisition of Australian citizenship” conferred by Division 1 of Part 2 of the 2007 Act or to the construction and application of s 5(3) of the 1948 Act.

16    No appellable error is discernible in the reasoning of the primary Judge.

CONCLUSIONS

17    Neither of the Grounds of Appeal has been made out.

18    The appeal is to be dismissed with costs.

THE ORDERS OF THE COURT ARE:

1.    The appeal is dismissed.

2.    The Appellant is to pay the costs of the First Respondent as agreed or assessed.

Associate:    

Dated:    20 August 2015