Federal Court of Australia

Koka v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 82

ORDERS

THE COURT ORDERS THAT:

1.    The appeal be dismissed.

2.    The appellant pay the first respondent’s costs of the appeal, to be fixed by way of an agreed lump sum.

3.    If by 4 pm on 11 June 2021 the parties cannot agree on a lump sum for the first respondent’s costs, the question of an appropriate lump sum is to be referred to a Registrar for determination.

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

REASONS FOR JUDGMENT

THE COURT:

1    This appeal concerns a single question regarding the proper construction of s 16(2)(a) of the Australian Citizenship Act 2007 (Cth). Section 16(2)(a) is one of the criteria to be satisfied on an application for the grant of Australian citizenship by descent, and requires that

a parent of the person was an Australian citizen at the time of the birth.

2    The appellant, Mr Bledi Koka, was born in 1982 in Albania. Neither of his biological parents were Australian citizens. After his birth, his biological mother formed a relationship with Mr Pullumb Koka. On 17 May 1995, the appellant was adopted in Albania, under Albanian law, by Mr P Koka, who had obtained Australian citizenship by conferral in 1955. On review of his unsuccessful application for Australian citizenship, the Administrative Appeals Tribunal had found on the evidence before it (including the adoption order of the Albanian Court, and the appellant’s birth certificate identifying Mr P Koka as his father) that the legal parental relationship Mr P Koka had with the appellant was “as if the Applicant had been born to Mr P Koka” and therefore Mr P Koka “was the Applicant’s parent at the time of his birth”, and his “parental relationship with the Applicant commenced at birth”. In light of this finding, the Tribunal set aside the decision under review and remitted the citizenship application for reconsideration in accordance with a direction that the Applicant is eligible to become an Australian citizen

as he had a parent, Mr Koka, who was an Australian citizen at the time of his birth, pursuant to section 16(2)(a) of the Australian Citizenship Act 2007 (Cth).

3    The first respondent, the Minister, appealed under s 44 of the Administrative Appeals Tribunal Act 1975 (Cth) to this Court. The primary judge upheld the appeal and set aside the Tribunal’s decision, remitting the matter to the Tribunal. The basis for his Honour’s orders was that the criterion in s 16(2)(a) looks to a factual situation as at the date of an applicant’s birth, not to any situation subsequently deemed by operation of law to have existed. Mr Koka now appeals from the primary judge’s orders.

4    The question on the appeal is whether the primary judge’s construction of s 16(2)(a) is correct. We find that it is, and the appeal must therefore be dismissed.

The legislative scheme

5    The only criterion in issue in terms of construction is in s 16(2)(a), but it is worthwhile setting out the whole of s 16.

16 Application and eligibility for citizenship

(1)    A person may make an application to the Minister to become an Australian citizen.

Note:    Section 46 sets out application requirements (which may include the payment of a fee).

Persons born outside Australia on or after 26 January 1949

(2)    A person born outside Australia on or after 26 January 1949 is eligible to become an Australian citizen if:

(a)    a parent of the person was an Australian citizen at the time of the birth; and

(b)    if the parent was an Australian citizen under this Subdivision or Subdivision AA, or section 10B, 10C or 11 of the old Act (about citizenship by descent), at the time of the birth:

(i)    the parent has been present in Australia (except as an unlawful non‑citizen) for a total period of at least 2 years at any time before the person made the application; or

(ii)    the person is not a national or a citizen of any country at the time the person made the application and the person has never been such a national or citizen; and

(c)    if the person is or has ever been a national or a citizen of any country, or if article 1(2)(iii) of the Stateless Persons Convention applies to the person, and the person is aged 18 or over at the time the person made the application—the Minister is satisfied that the person is of good character at the time of the Minister’s decision on the application.

Persons born outside Australia or New Guinea before 26 January 1949

(3)    A person born outside Australia or New Guinea before 26 January 1949 is eligible to become an Australian citizen if:

(a)    a parent of the person became an Australian citizen on 26 January 1949; and

(b)    the parent was born in Australia or New Guinea or was naturalised in Australia before the person’s birth; and

(c)    if the person is or has ever been a national or a citizen of any country, or if article 1(2)(iii) of the Stateless Persons Convention applies to the person—the Minister is satisfied that the person is of good character at the time of the Minister’s decision on the application.

6    Section 16 appears in Div 2, Subdiv A, which is the first of three methods in Div 2 of Part 2 of the Citizenship Act, by which a person can obtain citizenship by application. Subdivision A is headed “Citizenship by descent”. Subdivision AA is headed “Citizenship for persons adopted in accordance with the Hague Convention on Intercountry Adoption or a bilateral arrangement”. Sub-division B is headed “Citizenship by conferral”. The appellant applied under Subdiv A.

7    Division 1 of Part 2 is headed “Automatic acquisition of Australian citizenship”. It is not applicable to the appellant’s circumstances, but some of the provisions lend contextual support to the primary judge’s conclusions, as his Honour noted.

8    There was no suggestion before the Tribunal, before the primary judge or before this Court on appeal that s 4(2) of the Citizenship Act had any application to Mr Koka’s circumstances. Accordingly, the appeal is to be determined on the basis of the Citizenship Act as it stood at the time of the Tribunal’s review.

Background

9    The relevant personal history of the appellant, and procedural history of this dispute, is set out in the Tribunal decision at [1]-[7] and the primary judge’s reasons from [5]-[14]. The summary we have given at [2] above captures the salient facts. The Tribunal accepted, and the Minister did not dispute, that there was genuine and close parental relationship between Mr P Koka and the appellant since the appellant’s mother met Mr P Koka in 1992, when the appellant was 10 years old. It is common ground Mr P Koka passed away suddenly in 1997, in Albania.

10    The appellant first arrived in Australia on 2 September 2016 as the holder of a student visa. On 23 April 2018, the appellant applied for a grant of Australian citizenship by descent under Part 2 of the Citizenship Act.

11    On 18 February 2019, a delegate of the Minister of Home Affairs refused the application on the basis that they had found that the appellant did not have a parent who was an Australian citizen at the time of his birth. As the primary judge notes at [14], it is unclear why the respondent in this proceeding is the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs, when the delegate who made the decision under review by the Tribunal was a delegate of the Minister for Home Affairs. On appeal, it remains the case that neither party has suggested that the respondent is not the appropriate party to the proceeding in this Court. We have followed the primary judge in referring to the present respondent as the “Minister”.

12    As we have noted, by a decision dated 10 December 2019 the Tribunal decided the review in the appellant’s favour.

13    Before the primary judge (and before the Tribunal), the Full Court’s decision in H v Minister for Immigration and Citizenship [2010] FCAFC 119; 188 FCR 393 was contended to be of significance. Both parties accepted the decision was not in terms binding on the Tribunal or his Honour because the ratio decidendi of that decision concerned the meaning of “parent” in s 16(2)(a), rather than any question of when the person whose Australian citizenship was relied upon for the descent criterion in s 16(2)(a) had to be a “parent” of the citizenship applicant.

14    The primary judge’s reasoning in upholding the Minister’s s 44 appeal is captured in the following passages at [50]-[51]:

It is common ground in the present case that the observations of the Full Court in H at [67]-[70] are not strictly binding, on the basis that they did not form part of the essential reasoning on the issue to be determined in that case. It is unnecessary to determine whether or not that common position is correct. Assuming that the observations are not strictly binding, they are, in my respectful opinion, persuasive. For the reasons given by the Full Court, when regard is had to the legislative history and statutory context, the clearly better view is that s 16(2)(a) requires that an applicant for citizenship had, at the time of their birth, a parent who was an Australian citizen. As the Full Court stated at [70], the legislative history of s 16 shows that eligibility for citizenship under the predecessor provisions has always required a citizen parent at the time of birth. As the Full Court noted, there is no indication in the extrinsic materials that Parliament intended to change that basic test. Further, as the Full Court noted, that construction is consistent with s 12(1), according to which a person born in Australia is an Australian citizen in certain circumstances, including that “a parent … is an Australian citizen … at the time the person is born”. Other provisions support the construction adopted by the Full Court in H; for example, ss 17(4)-(4B), which address the national security exceptions to the Minister’s non-discretionary duty to approve the application of a person eligible for citizenship under s 16. There would seem to be no logical reason to limit s 17(4B) to parents as at the time of birth if s 16(2) were not also so limited. As the Full Court noted, similar language appears in the context of the national security exceptions to other routes to citizenship: see ss 19D(7) and 24(4B). For the reasons given by the Full Court in H, outlined above, I consider the construction of s 16(2) adopted by the Full Court at [67]-[70] to be correct.

Accepting that the words “at the time of birth” qualify both the status of being a parent and the parent’s citizenship in s 16(2), the ordinary meaning of the words used in the provision is that the eligibility requirements need to be established as a matter of fact, as distinct from deeming on the basis of later adoption. In other words, the applicant for citizenship must have had, at the time of their birth, a parent with Australian citizenship as a matter of fact. There is no indication in the text of the provision or the statutory context or purpose that these requirements can be satisfied on a deemed basis by virtue of principles relating to the law of adoption. The statutory context includes, in s 13 and Pt 2, Div 2, Subdiv AA, specific provisions relating to the acquisition of Australian citizenship in circumstances of adoption. While the presence of those provisions should not lead to a narrower construction of s 16(2), their presence makes clear that s 16(2) is not directed at an adoption situation.

(Emphasis added.)

The appeal

The grounds of appeal

15    The appellant relies on three grounds of appeal, which he accepts are “inevitably inter-related and despite the subtle differences probably coalesce into one concept”:

1. The learned trial judge erred by failing to properly apply and construe s 16 of the Australian Citizenship Act 2007 (Cth), “the Act”.

2. The learned trial judge erred by failing to find that the circumstances of the appellant came within the terms of s 16(2) of the Act.

3. The learned trial judge erred by misapplying the reasoning in H v Minister for Immigration and Citizenship (2010) 188 FCR 393 to the circumstances of this matter.

16    We agree with the appellant’s characterisation of these three grounds and consequently deal with them as component parts of a single question on appeal, being the proper construction, in light of the authorities, of s 16(2)(a) of the Citizenship Act and its application to the circumstances of the appellant.

The appellant’s submissions in summary

17    In substance, the appellant submits that:

(a)    under Albanian law, the effect of Mr P Koka’s adoption of the appellant is that the appellant is treated in law as if he were born to the adopted parent; and

(b)    Mr P Koka was an Australian citizen from 1955 onwards, and accordingly was an Australian citizen at the time the appellant was born (in 1982) and at the time Mr P Koka adopted the appellant (in 1995).

18    On the appellant’s submission, the “timing issue” is completely overcome by the effect of Albanian adoption law, which he contends is to the same effect as Australian and UK adoption law, as demonstrated by the authorities to which the Tribunal referred.

19    The appellant submits that the following matters favour his contended interpretation of s 16(2)(a):

(a)    the definition of the word “child” in s 3 of the Citizenship Act expressly includes “an adopted child”;

(b)    to exclude persons such as the appellant from the application of s 16(2) is to treat adopted children as “second class persons”;

(c)    relatedly, the interpretation accepted by the primary judge and supported by the respondent would have the result that any child adopted overseas (and outside the terms of Subdiv AA of Div 2) would be ineligible for Australian citizenship by descent, because all adoptions occur after the time of birth;

(d)    Mr P Koka’s citizenship entitled him to “all political and other rights, powers and privileges … to which an Australian citizen is entitled”, which properly included the right to pass on his citizenship to his adopted child; and

(e)    section 13 of the Citizenship Act, and Subdiv AA of Div 2 are not intended to “cover the field” of acquisition of citizenship by adoption, especially since they are not prefaced by the phrase “if and only if”.

20    In terms of the breadth of the meaning of the word “parent” in s 16(2)(a), and its capacity to incorporate adoptive parents, the appellant also relies on the High Court’s observations in Masson v Parsons [2019] HCA 21; 266 CLR 554 at [29]:

In In re G (Children), Baroness Hale of Richmond observed in relation to comparable English legislation that, according to English contemporary conceptions of parenthood, “[t]here are at least three ways in which a person may be or become a natural parent of a child” depending on the circumstances of the particular case: genetically, gestationally and psychologically. That may also be true of the ordinary, accepted English meaning of “parent” in this country, although it is unnecessary to reach a concluded view on that issue. The significance of her Ladyship’s analysis for present purposes, however, is that, just as the question of parentage under the legislation with which she was concerned was one of fact and degree to be determined by applying contemporary conceptions of parenthood to the relevant circumstances, the question of whether a person qualifies under the Family Law Act as a parent according to the ordinary, accepted English meaning of “parent” is a question of fact and degree to be determined according to the ordinary, contemporary Australian understanding of “parent” and the relevant circumstances of the case at hand. The primary judge and the Full Court were correct so to hold.

(Footnotes omitted.)

21    While the Court does not refer to adoption, the appellant submits it is clear that under adoption law, a child is treated as if she or he were, and always has been, the natural child of the adoptive parents. This is the point the appellant contends is best made by both the terms of the Albanian Court order where it states “the adopted child takes the fatherhood of the applicant[s] and his surname ‘Koka’”; and the unequivocal and unqualified representation on the appellant’s Albanian birth certificate that Mr P Koka was the “father” of the appellant.

22    In response to the primary judge’s acceptance of the observations in H at [67]-[70] as “persuasive”, the appellant submits that “adoption was never within the field of consideration in H and it would be incorrect to apply the reasoning in H to adoption”.

The Minister’s submissions in summary

23    The Minister submitted that the primary judge’s construction of s 16(2) is correct because:

(a)    it is supported by the text of the provision;

(b)    it is supported by the context that the provision appears in Subdiv A of Div 2 of Part 2 of the Citizenship Act, which is headed “Citizenship by descent”. The Minister contends that “in ordinary parlance” an adopted person is not said to be “descended” from their adoptive parent;

(c)    it is supported by the structure of the Act, in that the Act expressly provides an “available path” to acquire citizenship through adoption under s 13 and Subdiv AA of Div 2 of Part 2, in contrast to the language of s 16(2)(a);

(d)    it accords with the purpose of the Act, which the Minister submits is in part to prescribe requirements for non-citizens to meet in order to acquire Australian citizenship. The broader construction proposed by the appellant is inconsistent with the specific requirements for eligibility for citizenship set down by Parliament.

24    The Minister submits:

(a)    no inference may be drawn from the absence of the phrase “if and only if” from s 13 and Subdiv 2AA of the Citizenship Act. Whether the use of the word “if” is taken to be exhaustive is a question of construction: Jabetin Pty Ltd v Liquor Administration Board [2005] NSWCA 92; 63 NSWLR 602 at [40]-[41];

(b)    even if the appellant’s construction of s 16(2)(a) were correct, the appellant would be required to establish, as a question of fact, that the adoption had the effect under Albanian law that Mr P Koka was to be considered the appellant’s father from birth: Neilson v Overseas Projects Corporation of Victoria Ltd [2005] HCA 54; 223 CLR 331. The appellant did not provide any expert evidence at the Tribunal about the effect of Albanian adoption law;

(c)    in response to the appellant’s argument that to adopt the narrower construction of s 16(2) would be to “discriminate against all adopted persons”, the Minister submits that it is circular to suggest that a law that in its terms applies only to a fixed category of person is discriminatory because it does not apply to persons outside of the category.

25    The Minister accepted that the ratio in H concerned a different issue than that arising on appeal. However the Minister submits the obiter remarks in H support the view that s 16(2)(a) requires focus on the factual circumstances existing at the time of the child’s birth, and that the legislative history of s 16 supported the narrower construction, as predecessor provisions had always required a citizen parent at the time of birth: see H at [70]. The Minister submits that the primary judge was therefore correct to find H persuasive.

Resolution

26    In H at [67]-[69] the Full Court said:

Turning from these statutory definitions to the precise words of s 16(2), the Minister maintained that s 16(2)(a) requires that the citizen parent is a parent of the applicant “at the time of the [applicant’s] birth”. In other words, the Minister argued that, for purposes of s 16(2)(a), parenthood must be established as at the time of the birth. That is, on this construction of s 16(1)(a), “at the time of birth” qualifies both the status of being a parent and the parent’s citizenship. This was said to be the natural effect of s 16(2)(a). If this were the correct construction, then, so the Minister argued, his argument as to the meaning of “parent” in s 16(1)(a) was strengthened.

As it happens, we accept the Minister’s submission as to timing, although we reject the latter submission as to its consequential support for his case. Whilst commonly one may assume that a person accepting the status of a parent at the time of a birth is in fact a biological parent, human experience is that this is not always so. Numerous cases in the history of the law illustrate that the acceptance of parenthood at birth may be made in the absence of any relevant biological relationship: see, for example, Magill v Magill (2006) 226 CLR 551. Indeed, the appeal in McMullen provides a further example. Accepting that the Minister is correct on the timing issue, this does not favour the limitation of parent to biological parent only. Even on this construction s 16(2)(a) does not in terms preclude attributing parent status to a person identified as a parent at the time of birth even though not a biological parent.

The Minster’s construction as to timing might have been plainer if the phrase “at the time of birth” had been placed first, rather than last, in the paragraph. As s 16(2)(a) is drafted, it is grammatically possible to interpret “at the time of the birth” as applying only to “was an Australian citizen” and not to “a parent of the person”. If this were correct, the provision could be seen as covering a person who was an Australian citizen at the time an applicant was born but who only became a “parent” of the applicant at some point after the applicant’s birth. Such a situation could only occur, of course, if the Minister’s submissions as to the meaning of parent were rejected.

(Emphasis added.)

27    And at [95], after referring to the terms of s 13 of the Citizenship Act:

Again, the Minister argued that this section would be superfluous if a broad understanding of “parent” were intended in s 16(2). We would reject this argument as well. Section 16(2) looks to the time of the birth of a person and treats this time as relevant for determining eligibility for citizenship by descent. In Australia a person is adopted after the time of birth, and usually well after this time: see Adoption Act 1993 (ACT); Adoption Act 2000 (NSW); Adoption of Children Act 1994 (NT); Adoption Act 2009 (Qld); Adoption Act 1988 (SA); Adoption Act 1988 (Tas); Adoption Act 1984 (Vic); and Adoption Act 1994 (WA). Section 13 recognises this, treating the time of the adoption as the relevant time for the purposes of eligibility for citizenship.

28    The Full Court reinforced its opinion about the applicable timing of a person having an Australian citizen parent at [122]:

First, as emphasised already, s 16(2) contains a narrow time requirement: a claimant must show that, at the time of birth, he or she had a citizen parent. This inevitably circumscribes the field of eligibility. For example, even infant adoptees would be unable to satisfy this requirement.

29    Having explained, in careful and considered reasons, why a broader meaning should be given to the word “parent” in s 16(2)(a) than simply a person who is biologically the parent of a citizenship applicant, the Full Court again emphasized (at [130]) that the provision looked, in fact, to a particular point in time:

Applying s 16(2)(a), the Tribunal is bound to determine whether or not, at the time of the applicant’s birth, he or she had a citizen parent. In deciding whether a person can be properly described as the applicant’s parent, the Tribunal is obliged to consider the evidence before it, including evidence as to the supposed parent’s conduct before and at the time of birth and evidence as to the conduct of any other person who may be supposed to have had some relevant knowledge. Evidence as to conduct after the birth may be relevant as confirming that parentage at the time of birth. For example, evidence that a person acknowledged the applicant as his own before and at the time of birth and, thereafter, treated the applicant as his own, may justify a finding that that person was a parent of the applicant within the ordinary meaning of the word “parent” at the time of the birth.

30    The Full Court’s decision in H contains carefully considered opinions about the construction and operation of s 16(2)(a) and while the Court’s primary focus was on the breadth to be given to the word “parent”, its confirmation about the importance of looking at the facts at the time of a person’s birth permeates the reasons, beyond the passages at [67]-[69].

31    The appellant did not contend that H was wrongly decided, but did invite the Court to find that the Full Court’s observations were not persuasive. We reject that invitation. Just as the primary judge did, we find the reasoning of the Court in H to be persuasive, in terms of the focus of the provision in its text and context, and in light of its legislative history, as being on the factual circumstances which exist at the time of the birth of a child. We respectfully agree with the Full Court’s reasoning at [70] and [103]-[121] that the legislative history of the provisions of the Citizenship Act dealing with citizenship by descent focus on the facts as at the physical birth of a person.

32    While neither party relied upon it, we consider that the interpretation accepted by the primary judge is also supported by the findings of the Full Court in McHugh v Minister [2020] FCAFC 223 at [363]-[376] (Mortimer J, Allsop CJ and Besanko J agreeing). That case considered, among other questions, whether the appellant was an Australian citizen by birth under s 10(1) of the Australian Citizenship Act 1948 (Cth) (the 1948 Act) in circumstances where he was born in the Cook Islands but had been adopted under Queensland law. The Queensland adoption legislation at the time provided that the effect of an adoption was that “the adopted child acquires the domicile of the adopter or adopters” and that “[t]he domicile acquired … shall be deemed to be also the child’s domicile of origin”. The Full Court in McHugh held that the requirement in s 10(1) that a citizen by birth be born in Australia was considered “a criterion which is a question of fact, not law”. That approach is consistent with the primary judge’s construction of s 16(2) in the present case. Save for express exceptions for which it provides, the Citizenship Act has a focus on the factual situation at the time of the physical birth of a person.

33    The primary judge is correct to observe at [51] of his reasons that s 16(2)(a) is not concerned with the operation of law, or any deeming effect of adoption laws, but with the factual situation that exists at the time a child is born.

34    We are prepared to accept it was open to the Tribunal to find that as a matter of Albanian law (evidenced by the Albanian Court order and the birth certificate) that a person was deemed to be the parent of a child she or he has adopted, as from the birth of that child. The Minister did not challenge these findings in his notice of appeal under s 44, but rather challenged the Tribunal’s construction of s 16(2)(a) as incorporating these circumstances.

35    Even accepting those findings, in our opinion s 16(2)(a) is simply not concerned with the operation of any law on the legal status of a child, or the legal status of an adoptive parent of a child. It is concerned with the factual question of whether, when a child is born, she or he has – at that particular point in time – a “parent” (construed in accordance with H) who is an Australian citizen.

36    The appellant’s counsel fairly accepted that when the appellant was born in 1982, Mr P Koka was not in fact his parent, as Mr P Koka did not commence a relationship with the appellant’s mother until the appellant was 10 years old.

37    It can be accepted that these conclusions mean a person such as the appellant, who as the Tribunal accepted had a loving and genuine relationship with his Australian citizen father, falls between, or outside, the pathways which Parliament has set in the Citizenship Act for people adopted by an Australian citizen parent to become Australian citizens. It is therefore correct to state that Parliament does not provide a pathway to Australian citizenship for all children adopted overseas. Indeed, on the conclusion reached in this appeal, the only children born and adopted overseas for whom a pathway to citizenship is provided are those covered, since 1998 (the date Australia acceded to the Hague Convention), by Subdiv AA of Div 2 of Part 2 of the Citizenship Act.

38    Nor does the Citizenship Act provide a pathway for all children adopted under Australian law: both the Citizenship Act, and its predecessor the 1948 Act only incorporated provisions for children adopted in Australia to become citizens from 1984. Section 10A was introduced into the 1948 Act in 1984:

10A Citizenship by adoption

A person, not being an Australian citizen, who:

(a)    under a law in force in a State or Territory, is adopted by an Australian citizen or jointly by 2 persons at least one of whom is an Australian citizen; and

(b)    at the time of his adoption is present in Australia as a permanent resident,

shall be an Australian citizen.

39    Section 10A was added by the Australian Citizenship Amendment Act 1984 (Cth) with effect from 22 November 1984 (s 2(1) of the 1984 Amending Act), and applied to a relevant person adopted after that date (s 39(3) of the 1984 Amending Act).

40    Thus, children adopted in Australia before 1984 have no such pathway to citizenship.

41    These examples make good the Minister’s proposition that Parliament has chosen, by the text and structure of the statute, the pathways to Australian citizenship, including for those who are adopted children. They are not all encompassing. There are some arbitrary lines drawn. Some might well describe them as unfair or unjust. However, these are the legislative policy choices made by Parliament.

Conclusion

42    The primary judge did not err in his Honour’s construction of s 16(2)(a). That construction is correct. The appeal must be dismissed. There is no basis for anything but the usual orders as to costs, although in accordance with the Court’s Practice Notes, we order the costs be fixed by way of a lump sum.

Associate:

Dated:    28 May 2021