Federal Court of Australia

Taylor v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 144

ORDERS

THE COURT ORDERS THAT:

1.    The appeal be dismissed.

2.    The appellant pay the first respondent’s costs.

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

REASONS FOR JUDGMENT

(Revised from the Transcript)

RARES J:

1    This is an appeal from the decision of a judge of the Court to dismiss the appellant’s application for a writ of habeas corpus. The appellant claimed that, for constitutional purposes, he was both a non-citizen and non-alien and that, because of that asserted status, he had a right to remain in Australia.

Background

2    The primary judge’s findings of fact are not challenged, and what follows draws on them. His Honour found that:

    the appellant, when born in the United Kingdom, was named Steven Barr.

    in 1969, at the age of four, he came to Australia with his parents under that name, but is now known as Julian Taylor.

    before 26 January 1984, the appellant’s name was entered on the electoral roll and he has voted subsequently in federal elections and constitutional referenda (cf: s 93(1)(b)(ii) of the Commonwealth Electoral Act 1918 (Cth)).

    on 5 May 1988, he became an Australian citizen by naturalisation when he took an oath or affirmation of allegiance in accordance with the form in Sch 2 to the Nationality and Citizenship Act 1948 (Cth), which became known as the Australian Citizenship Act.

    on 22 May 1990, the appellant obtained an Australian passport.

    on 19 April 1995, pursuant to s 18 of the Citizenship Act, the appellant renounced his Australian citizenship. It is common ground that he thereafter has never been an Australian citizen. He was then granted an ex-citizen visa.

    apart from a period between December 2012 and April 2015, he has lived continuously in Australia.

    in 2013, the appellant was granted a resident return visa.

    the appellant has a daughter who is an Australian citizen.

    in 2018, he was found guilty of various offences and sentenced to 2 years and 11 months’ imprisonment.

3    On 21 December 2018, a delegate of the Minister cancelled the appellant’s resident return visa pursuant to s 501(3A) of the Migration Act 1958 (Cth). There is no issue that the criteria for the mandatory cancellation of the visa under that provision were satisfied.

4    The appellant made a request for revocation of the cancellation decision pursuant to s 501CA(4) of the Migration Act. A delegate of the Minister decided not to revoke the cancellation decision. The appellant applied to the Administrative Appeals Tribunal for a review of that decision, and on 14 January 2021, it decided to affirm the delegate’s decision not to revoke the cancellation decision.

5    The appellant applied to the Court for orders quashing the decision of the Tribunal, and seeking, inter alia, the issue of a writ of habeas corpus and a declaration that he is a non-alien. On 30 March 2022, the primary judge made orders dismissing the amended originating application.

6    Upon the appellant’s term of imprisonment being served, he was taken into migration detention, where he remains. He claims that he has been unlawfully detained because, as an alleged non-citizen non-alien he is not within the reach of the aliens power in s 51(xix) of the Constitution.

The legislative context

7    Relevantly, s 51 of the Constitution conferred power on the Parliament to make laws with respect to:

(xix.) Naturalization and aliens:

…

(xxvii.) Immigration and emigration:

8    The version of the Citizenship Act to which the parties referred the Court for the hearing of the appeal provided in ss 16 and 18:

16 – (1) A person to whom a certificate of naturalization has been granted shall be an Australian citizen by naturalization –

(a) in the case of a person who has attained the age of sixteen years – as from the date upon which he takes in the prescribed manner an oath of allegiance in accordance with the form contained in the Second Schedule to this Act; or

…

18 – (1) Where, under the law of some country other than Australia, an Australian citizen acquires, at birth or whilst not of full age or by reason of marriage, the nationality or citizenship of that country, he may, at any time after attaining the age of twenty-one years or after the marriage, make a declaration renouncing his Australian citizenship.

…

(4) Subject to the next succeeding sub-section, the Minister shall register a declaration made under this section and thereupon the person making the declaration shall cease to be an Australian citizen.

(5) Where, during a war in which Australia is engaged, a declaration is made under this section by a person who is a national or citizen of a foreign country, the Minister may refuse to register the declaration.

(emphasis added)

9    The parties argued, and the Court decided, the appeal on the basis that the above provisions applied in 1988 and 1995 when the appellant respectively became an Australian citizen and later made a declaration of renunciation of his Australian citizenship. In revising the reasons given ex tempore at the conclusion of oral argument, it emerged that the relevant provisions of the Citizenship Act had been amended subsequently to the version above and:

    between 1973 and 1992 included:

(a)    as a substitute for s 16(1), a relevantly similar provision in s 15(1) and

(b)    in Sch 2 a form of oath (with a materially similar affirmation) as follows:

I, A. B., renouncing all other allegiance, swear by Almighty God that I will be faithful and bear true allegiance to Her Majesty Elizabeth the Second, Queen of Australia, Her heirs and successors according to law, and that I will faithfully observe the laws of Australia and fulfil my duties as an Australian citizen.

(emphasis added)

    between 1994 and 1996, substituted a s 18 in relevantly similar terms to the earlier version above.

10    The new provisions, although differently worded, were substantively to the same effect as the above versions of ss 16 and 18 and do not impact on the substance of the reasons below; indeed, s 14(1)(g) of the version of the Citizenship Act in force between 1973 and 1992 required an applicant for a certificate of Australian citizenship to satisfy the Minister “that he has an adequate knowledge of the responsibilities and privileges of Australian citizenship”.

11    The Electoral Act relevantly provides:

93     Persons entitled to enrolment and to vote

(1)     Subject to subsections (7) and (8) and to Part VIII, all persons:

(a)     who have attained 18 years of age; and

(b)     who are:

(i)     Australian citizens; or

(ii)     persons (other than Australian citizens) who would, if the relevant citizenship law had continued in force, be British subjects within the meaning of that relevant citizenship law and whose names were, immediately before 26 January 1984:

(A)     on the roll for a Division; or

(B)     on a roll kept for the purposes of the Australian Capital Territory Representation (House of Representatives) Act 1973 or the Northern Territory Representation Act 1922;

shall be entitled to enrolment.

(2)     Subject to subsections (3), (4), (5) and (8AA), an elector whose name is on the Roll for a Division is entitled to vote at elections of Members of the Senate for the State that includes that Division and at elections of Members of the House of Representatives for that Division.

…

(7)      A person who is:

(a)      within the meaning of the Migration Act 1958, the holder of a temporary visa; or

(b)      an unlawful non-citizen under that Act;

is not entitled to enrolment under Part VIII.

(emphasis added)

12    Under s 114(2), the Electoral Commissioner must object to the enrolment of a person on the electoral roll if there are reasonable grounds for believing that the person is not entitled to be enrolled for the relevant subdivision and, if, pursuant to s 118(1) and (3), the Commissioner concludes that the challenged elector is not entitled to be enrolled for the relevant subdivision, he or she must remove the elector’s name from the roll.

The issues

13    The appellant contended that the primary judge erred in rejecting the following two arguments on which he claimed that his immigration detention was unlawful. Those arguments were that he was not an alien within the meaning of 51(xix) and, as a result, his detention under s 189(1) of the Migration Act is unlawful because:

(1)    he had been accepted by the Australian body politic and community, as a citizen and his renunciation of citizenship in 1995 did not change his “non-alien” status so that, as a “non-alien”, he could not be subject to the provisions of the Migration Act, even though he is a non-citizen; or

(2)    alternatively, by reason of an holistic assessment of his circumstances, he had the essential characteristics of a non-alien non-citizen.

The primary judge’s reasons

14    In reasons which are lucid and compelling, the primary judge rejected the appellant’s then three grounds of challenge to the lawfulness of his immigration detention. The appellant does not press the third ground in this appeal. His Honour rejected the appellant’s reliance on what Gleeson CJ, Gummow and Hayne JJ, with whom Heydon J agreed, said in Shaw v Minister for Immigration and Multicultural Affairs (2003) 218 CLR 28 at 43 [32], namely:

This case should be taken as determining that the aliens power has reached all those persons who entered this country after the commencement of the Citizenship Act on 26 January 1949 and who were born out of Australia of parents who were not Australian citizens and who had not been naturalised.

(emphasis added)

15    The primary judge found that their Honours were not addressing the situation of a person who had been naturalised but later ceased to be a citizen. Thus, the mere fact that the appellant had been naturalised did not preclude the revival of his status of an alien when his renouncement of citizenship occurred.

16    The appellant also relied on the following reasoning of Mason CJ, Wilson, Brennan, Deane, Dawson and Toohey JJ in Nolan v Minister of State for Immigration and Ethnic Affairs (1988) 165 CLR 178 at 183, namely:

As a matter of etymology, “alien”, from the Latin alienus through old French, means belonging to another person or place. Used as a descriptive word to describe a person’s lack of relationship with a country, the word means, as a matter of ordinary language, “nothing more than a citizen or subject of a foreign state”: Milne v Huber. Thus, an “alien” has been said to be, for the purposes of United States law, “one born out of the United States, who has not since been naturalized under the constitution and laws”. That definition should be expanded to include a person who has ceased to be a citizen by an act or process of denaturalization and restricted to exclude a person who, while born abroad, is a citizen by reason of parentage. Otherwise, it constitutes an acceptable general definition of the word “alien” when that word is used with respect to an independent country with its own distinct citizenship.

(footnotes omitted, emphasis added)

17    The primary judge said that their Honours used the expression, “an act or process of de-naturalisation”, broadly and in a way that encompassed various different processes by which a person may cease to be a citizen. His Honour explained (at [62]):

Secondly, insofar as the applicant submits that he is outside the description of an “alien” in Nolan at 183, I am not persuaded by that submission. In my view, in referring to “an act or process of denaturalization”, the joint judgment in Nolan was using that expression broadly and in a way that encompassed various different ways by which a person may cease to be a citizen. I am not persuaded that there is a relevant distinction between, on the one hand, ceasing to be a citizen by renunciation pursuant to s 18 of the Australian Citizenship Act 1948 and, on the other hand, ceasing to be a citizenship by deprivation of citizenship under s 21 of that Act. Both provisions fall within Div 4 of Pt III, dealing with loss of citizenship. Section 18 required an act by the Minister, namely registration of the declaration; thus renunciation under this provision was not able to be effected by a unilateral act by the applicant. This is demonstrated by the documents in evidence relating to the renunciation of the applicant’s citizenship, which include a registration document: see annexure “ER-1” to Mr Rogers’s affidavit.

(emphasis added)

18    His Honour held that it was open to the Parliament to determine who is and who is not to be treated as an alien, apart from Aboriginal Australians and possibly Torres Strait Islanders, as held in Love v The Commonwealth (2020) 270 CLR 152, and exceptional cases referred to by Gibbs CJ in Pochi v MacPhee (1982) 151 CLR 101 at 109. The primary judge found that the Parliament had determined that all non-citizens are to be treated as aliens based on the reasons of Kiefel CJ, Gageler, Keane and Gleeson JJ in Chetcuti v The Commonwealth (2021) 95 ALJR 704 at 710 [11]–[12].

19    The primary judge reasoned that, although the appellant had been naturalised, his subsequent renunciation of his citizenship entailed that the Parliament had determined that, in common with all non-citizens, he be treated as an alien. Thus, his Honour found that because the appellant was a non-citizen, first, he was, at least prima facie, an alien and, secondly, since there was no suggestion that the appellant was either an Aboriginal Australian or Torres Strait Islander, he could not be in any exceptional class of case to which Gibbs CJ had referred in Pochi 151 CLR at 109–110. There, Gibbs CJ said:

This argument proceeds on the assumption that any person who is a British subject under the law of the United Kingdom cannot be an alien within s 51(xix). That assumption is incorrect. The scope of the legislative power conferred on the Parliament by s 51(xix) is not determined by the British Nationality Acts of the United Kingdom. In recent times the status of a British subject has lost much of its former significance to Australian citizens. It has ceased to carry with it practical advantages, such as the unrestricted right to enter the United Kingdom or other Commonwealth countries, or the right to a British passport. The allegiance which Australians owe to Her Majesty is owed not as British subjects but as subjects of the Queen of Australia. Now, once the British Nationality Act 1981 (UK) has come into force, the principle that every Commonwealth citizen is a British subject will have finally been abandoned, and the status of British subject will be restricted to a narrow group. If English law governed the question who are aliens within s 51(xix), almost all Australian citizens, born in Australia, would in future be aliens within that provision. The absurdity of such a result would be manifest. The meaning of “aliens” in the Constitution cannot depend on the law of England. It must depend on the law of Australia. It is true that s 51(xix) presents some difficulties. Clearly the Parliament cannot, simply by giving its own definition of “alien”, expand the power under s. 51(xix) to include persons who could not possibly answer the description of “aliens” in the ordinary understanding of the word. This question was not fully explored in the present case, and it is unnecessary to deal with it. However, the Parliament can in my opinion treat as an alien any person who was born outside Australia, whose parents were not Australians, and who has not been naturalized as an Australian. The plaintiff's argument is based on a false assumption and must fail.

(emphasis added)

20    Accordingly, the primary judge rejected the first ground of the appellant’s challenge to his detention.

21    His Honour also rejected the second ground. He found that the principal difficulty with the second ground was that, based on his findings in relation to the first ground, the Parliament had determined to treat all non-citizens as aliens. Because the appellant is a non-citizen, prima facie, his Honour held that he is an alien. He found that the various facts and matters on which the appellant relied did not gainsay that result. His Honour found that the appellant was not a person to whom Gibbs CJ referred in Pochi 151 CLR at 109 as one who “could not possibly answer the description of ‘aliens’ in the ordinary understanding of the word”, so as to exclude himself from the legislative power in s 51(xix) and as a consequence, both the power in s 51(xxvii) and the provisions of the Migration Act.

22    His Honour did not consider that by virtue of being on the electoral roll, the appellant’s position improved in this regard. His Honour found that, having regard to all of the matters on which the appellant relied in support of his second ground, he was a non-citizen and there was no basis to exclude him from the status of an “alien” in the ordinary understanding of the word.

The appellant’s submissions

23    The appellant made the same arguments on appeal as he had put below. In support of his first ground, he argued that, because of his previous naturalisation as an Australian citizen, he could no longer fall within the category of a foreign-born person to whom the reasoning in Shaw 218 CLR 28 and Chetcuti 95 ALJR 704 applied, and that he could no longer be “reached” by the aliens power. He contended that the change to his status by his naturalisation resulted in his “admission” to the Australian political community and permanently removed the status of alienage that he had previously held. His submissions recognised that ground 1 of his appeal turned on whether his renunciation of citizenship pursuant to s 18 of the Citizenship Act, had the effect of bringing him, again, within the reach of the aliens power. He submitted that it could not, based on what his counsel described in the course of oral argument as a “mosaic” of judgments of various Justices of the High Court given at various times. He argued that renunciation of citizenship under s 18 did not amount to “denaturalization” or, as some Justices have sometimes referred to it in more recent decisions, “denationalisation”.

24    In his written submissions, he contended that the High Court had used the expression “denaturalization” in Nolan 165 CLR at 183 and in later restatements of the principle in the following way:

See Hofmann, “Denaturalization and Forced Exile” in Max Planck Encyclopedia of Public International Law (OUP, January 2020) at [1]:

the term “denaturalization” … is used to signify all deprivations of nationality by a unilateral act of a State whether by the decision of administrative authorities or by the operation of law. In this sense, denaturalization thus does not concern the legal problems connected either with renunciation of nationality, ie expatriation or loss of nationality resulting from a deliberate renunciation by the individual, or with substitution of nationality, ie automatic loss of nationality upon acquisition of another nationality.

See also Hudson, Nationality, Including Statelessness, UN Doc A/CN.4/50 (21 February 1952) at 18, 21 (distinguishing between renunciation as the “voluntary action of the individual” and denaturalisation or denationalisation as the “unilateral action of the State”); Chu Kheng Lim v Minister for Immigration (1992) 176 CLR 1 at 54 (Gaudron J).

25    The appellant contended that “denaturalization” involved a unilateral involuntary process initiated on behalf of the political community, whereas renunciation of citizenship involved neither unilateral action nor any affirmative assessment by the State that the person ought now be excluded from the political community. He submitted that the decision of the Minister to register a declaration of renunciation under s 18(4) of the Citizenship Act did not involve any judgment as to whether the person is or should be excluded from political community. Rather, the appellant argued, the Minister was obliged to register the declaration of renunciation except in specific circumstances provided for in s 18(5), none of which were applicable to him. He again relied on the passage in Nolan 165 CLR at 183, that I have quoted at [#16] above, to support his argument that he had not undergone any process of denaturalization so as to warrant his reversion to the status of an alien. He contended that Alexander v Minister for Home Affairs (2022) 401 ALR 438, which was decided after the primary judge made final orders, did not preclude the maintenance of his argument. He submitted that Alexander 401 ALR 438 was concerned solely with the scope of the Parliament’s power to provide for denaturalization and its sequelae in the precise sense of a unilateral withdrawal by the State of an individual’s membership of the political community. He argued that Kiefel CJ, Keane and Gleeson JJ, with whom Gageler J substantially agreed on the constitutional power issue, did not, and did not need to, decide whether voluntary renunciation of citizenship by a person necessarily would bring him or her within the scope of the aliens power.

26    In support of his second ground, the appellant repeated his arguments below, relying on the totality of his circumstances. In those submissions, he noted that he had been granted an ex-citizen visa from 1995 and a resident return visa in 2013. He contended that the historical grant of the status of citizenship was a factor that, together with other markers of his connection with Australia and its body politic, led to the conclusion that he was not an alien in the ordinary understanding of the word, and that this distinguished him from litigants in cases such as Pochi 151 CLR 101, Shaw 218 CLR 28 and Chetcuti 95 ALJR 704.

Consideration

Ground One: Effect of renunciation

27    Because the appellant was a British citizen at birth, s 18(1) of the Citizenship Act enabled him to make a declaration renouncing his Australian citizenship that the Minister could register under s 18(4). The Parliament intended to allow a person to renounce his or her Australian citizenship in circumstances where he or she would not be rendered stateless by the registration of the renunciation. In Shaw 218 CLR at 35 [2], Gleeson CJ, Gummow and Hayne JJ (with whom Heydon J at 87 [190] relevantly agreed) said:

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 upon other persons. On the other hand, by a law with respect to naturalisation, 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.

(emphasis added, footnotes omitted)

28    In referring to Gibbs CJ’s statement in Pochi 151 CLR at 109, that the Parliament could not expand the power under s 51(xix) to include persons “who could not possibly answer the description of ‘aliens’ in the ordinary understanding of the word”, their Honours said that (at 36 [9]):

The “ordinary understanding” of the term “alien”, correctly, is not said to be at large. Its appropriate use in Australia must have regard to the circumstances and conditions applicable to the individual in question.

(emphasis added)

29    Gleeson CJ, Gummow and Hayne JJ explained how persons such as the appellant, who were classified as British subjects, fell into a special category, pursuant to s 7 of the Citizenship Act, by reason of the Commonwealth’s exercise of its legislative power with respect to aliens. They said (at 40 [22]):

The new statutory status rendered those persons a class of aliens with special advantages in Australian law as mentioned above. It could be hardly said that, as the relevant political facts and circumstances stood in 1948, those citizens could not possibly answer the description of aliens in the ordinary understanding of that word.

30    It follows that the appellant was a British subject, to whom s 7 of the Citizenship Act applied prior to his naturalisation, with the special advantages that Gleeson CJ, Gummow and Hayne JJ described in Shaw 218 CLR at 40 [22]. As the Minister pointed out in his submissions, one of those rights was the right of a British subject who was on the electoral roll prior to 26 January 1984, such as the appellant, to vote under s 93(1)(b)(ii) of the Electoral Act. The Minister acknowledged that no process for removal of the appellant’s name from the electoral roll has occurred to this time. However, as the Minister submitted, the Electoral Commissioner is likely to proceed in the future on the basis that the appellant is an unlawful non-citizen under the Migration Act, within the meaning of s 93(7)(b) of the Electoral Act. That is because his challenge in this appeal to the cancellation of his visa has not yet been concluded. If the appellant were found to be an alien, then he would fall within the class of persons who, under s 93(7)(b), is not entitled to enrolment under the Electoral Act.

31    In Alexander 401 ALR at 445 [31], Kiefel CJ, Keane and Gleeson JJ, with whom Gageler J agreed on this issue at 461 [98], held that, the status of citizenship, that recognises an individual’s formal membership of the national community, is a statutory concept. They said:

It is the grant of Australian citizenship that creates the status which attracts constitutional protections and engages federal and State legislation that confers or denies rights, privileges, immunities or duties.

32    Earlier, in Chetcuti 95 ALJR at 711 [15], Kiefel CJ, Gageler, Keane and Gleeson JJ held:

The conclusion of the majority in Shaw was confined in its terms to a determination that “the aliens power has reached all those persons who entered this country after the commencement of [the Australian Citizenship Act] on 26 January 1949 and who were born out of Australia of parents who were not Australian citizens and who had not been naturalised”.

33    They held, based on the ratio decidendi in Shaw 218 CLR 28, that by enacting the Citizenship Act, the Parliament exercised the aliens power in, first, on and from 26 January 1949, establishing the new status of Australian citizen, secondly, treating all persons who did not have that status as aliens and, thirdly, creating a class of aliens, having the status (as the appellant had before his naturalization) of British subjects “on whom special privileges were for some time afterward conferred [Shaw 218 CLR at 40 [21]–[22]]”: Chetcuti 95 ALJR at 711 [16].

34    In Alexander 401 ALR at 445–446 [31]–[33], Kiefel CJ, Keane and Gleeson JJ affirmed that the Constitution left it to the Parliament to decide who should be granted the status of citizenship and what that status may mean in terms of the rights, privileges, immunities and duties of citizens. They noted that s 51(xix) empowered the Parliament to create and define the concept of Australian citizenship, to select or adopt criteria for citizenship or alienage, and to attribute to any person who lacks those qualifications the status of an alien. They said (at 446 [34]):

It has been said in this Court that the terms “citizen” and “alien” are antonyms. Recently, the majority of this Court in Love held that Aboriginal Australians who satisfy the tripartite test in Mabo v Queensland constitute a separate category of non-citizen, non-alien, and that “non-citizen” is not inevitably and always synonymous with “alien”. But in Chetcuti, Kiefel CJ, Gageler, Keane and Gleeson JJ observed that this Court's decision in Shaw (from which the holding of the majority in Love does not depart, except in respect of an Aboriginal Australian according to the tripartite test in Mabo) establishes that the aliens power supports a law of the Commonwealth which determines who shall have the status of Australian citizenship, and which provides that persons who do not share that status are aliens.

(emphasis added, footnotes omitted)

35    Their Honours explained (at 447 [35]) that Gibbs CJ’s statement in Pochi 151 CLR at 109, as to the ordinary understanding of “alien”, did not preclude the Parliament from attributing the status of alien to a person who had engaged in conduct exhibiting such extreme enmity to Australia as to warrant his or her exclusion from membership of the Australian community. They held that:

The Parliament has the power, under s 51(xix) to attribute the constitutional status of alien to a person who has lost the statutory status of citizenship. By the same power Parliament can define the circumstances in which that occurs.

(emphasis added)

36    There, Mr Alexander was a dual Australian and Turkish citizen who, the Minister had found, had so acted as to exhibit a sufficient degree of extreme enmity to Australia as to warrant the Minister exercising a power to determine that his citizenship should cease. Their Honours said that if the Parliament had legislative power to confer rights, it could also take those rights away (at 447–448 [38]). They held that where a statute conferred citizenship rights being the source of Mr Alexander’s rights as citizen:

it must also be accepted that the present version of this Citizenship Act may limit those rights, including by providing for circumstances in which they may be lost. A person who has forfeited the rights of citizenship is no less accurately described as an alien than a person who has never enjoyed those rights.

(emphasis added)

37    Their Honours said (at 448 [40]–[42]):

It was only upon the enactment of the Naturalization Act 1870 (UK) with its provision for “the severing of the connection of a British subject established by birth within the Crown’s dominions” and the British Crown that English law acknowledged the possibility of bringing to an end the relationship between subject and sovereign. Until then, under the common law, the connection between a British subject and the Crown was “indelible”. The common law principle was abandoned by the Naturalization Act, which provided by s 4 that any person, who was a natural-born subject of the Crown and at birth became a foreign subject under the laws of another state, may make a “declaration of alienage” and thereby cease to be a British subject. Under s 6 of the Naturalization Act, a British subject who voluntarily became naturalised in a foreign state was deemed to have ceased to be a British subject and was to be regarded as an alien, as was, by virtue of s 10, a woman who, upon marriage, became a subject of the foreign state of which her husband was a subject.

There can be no doubt that the provisions of the Naturalization Act were before the framers of the Constitution when they drafted s 51(xix). As Gummow, Hayne and Heydon JJ said in Singh:

“Given the state of British law at the time of Federation, and in particular the provisions of the Naturalisation Act 1870 permitting renunciation of allegiance, it would be surprising if the power with respect to naturalisation and aliens did not extend this far.”

It would be no less surprising if the power conferred by s 51(xix) did not extend to support the making of a law identifying the circumstances in which a person who is currently a citizen may become an alien by reason of the Commonwealth’s response to that person’s repudiation of the ties of allegiance.

(emphasis added, footnotes omitted)

38    Kiefel CJ, Keane and Gleeson JJ explained that the aliens power permitted the Parliament to give practical content to the expression “the people” in ss 7 and 24 of the Constitution and to establish criteria to determine who were, and were not, to have the legal status of members of the body politic of the Commonwealth (at 449 [44]–[45]). However, the references to “the people” in ss 7 and 24 of the Constitution did not support the existence of any limitation on the legislative power in s 51(xix) to identify the characteristics of citizenship beyond that which Gibbs CJ stated in Pochi 151 CLR at 109. They held that there was nothing fanciful in classifying as an alien or someone “separate from ‘the people’”, an individual who, though previously a citizen, had acted so inimically to Australia’s interests as to repudiate the obligations of citizenship on which membership of the people of the Commonwealth depends (401 ALR at 449–450 [44]–[46]). In other words, their Honours held that s 51(xix) supported a law that gave persons who were aliens (such as British subjects within the class referred to in s 93(1)(b)(ii) of the Electoral Act) the privilege to be included as “the people” for voting purposes.

39    Kiefel CJ, Keane and Gleeson JJ said (401 ALR at 450 [49]–[50]; and see too at [51]):

The absence of the continuing commitment that is citizenship is sensibly described as an absence of “allegiance”. The utility of “allegiance” as a determinative test for non-alienage has been questioned (Love [v Commonwealth (2020) 270 CLR 152] at [428]–[431]); and the plurality in Chetcuti [95 ALJR 704] held that the reach of the aliens power could be determined in that case “without need to explore common law notions of allegiance and alienage” (At [34]). But allegiance is a useful gauge of the existence of the bonds of citizenship. Section 44(i) of the Constitution itself expressly acknowledges that allegiance may be an integral aspect of citizenship.

Given that citizenship is a status of reciprocal rights and obligations, it is to understand the status of citizenship in an incoherently one-sided way to say that s 51(xix) supports a law that specifies the criteria by which a citizen may voluntarily renounce Australian citizenship — as Mr Alexander accepted — but does not support a law that treats voluntary conduct demonstrating a repudiation of allegiance to Australia as an implied renunciation of citizenship.

(emphasis added)

40    Their Honours held that s 51(xix) authorised a law that deprived a person of citizenship if his or her voluntary conduct was so incompatible with the values of Australian people as to be also incompatible with his or her continued membership of the Australian body politic and supported depriving the person of citizenship (401 ALR at 452 [61]–[62]). They held that s 51(xix) enabled the Parliament, first, to create a status of citizenship and, secondly, to exclude persons, who are citizens and whose conduct has been inimical to Australian interests, from membership of the body politic by forfeiting their rights to citizenship so that they became aliens: Alexander 401 ALR at 453 [63].

41    In Chetcuti 95 ALJR at 710 [11], Kiefel CJ, Gageler, Keane and Gleeson JJ said:

Since 2 April 1984, the Commonwealth Parliament has relied on the legislative power with respect to aliens to sustain the Migration Act. Subject to providing through s 15A of the Acts Interpretation Act 1901 (Cth) for the Migration Act to have a distributive and severable operation to the extent of any constitutional overreach, the Parliament has done so treating all non-citizens as aliens. And since 1 September 1994, it has done so creating a clear-cut distinction between lawful non-citizens, being non-citizens who hold visas permitting them to enter and remain in Australia, and unlawful non-citizens, being non-citizens who do not hold visas and who are in consequence liable to detention and to removal from Australia.

(emphasis added, footnotes omitted)

42    They also held that (at [12]):

the aliens power encompasses both power to determine who is and who is not to have the legal status of an alien and power to attach consequences to that status.

(emphasis added)

43    The appellant’s principal argument should be rejected. In substance, it was that he was beyond the constitutional reach of the aliens power because, once he had been naturalised under s 16 of the Citizenship Act, that circumstance in some way, removed him once for all from ever becoming an alien again, even if he were to exercise his right to renounce his citizenship under s 18, as he did. The appellant accepted that his renunciation of Australian citizenship meant that he was not a citizen. But, he contended, based on statements in various cases, in particular Love 270 CLR 152, that he thereupon became a “non-citizen, non-alien”.

44    However, Love 270 CLR 152 was not concerned with an alien who had been naturalised and later renounced citizenship under the now repealed Citizenship Act or the current Act. Here, the Citizenship Act provided that naturalisation occurred upon an alien taking the oath of allegiance in accordance with s 16(1)(a), which circumstance created a new status as an Australian citizen for a person in the position of the appellant in 1988. At that time he became a dual citizen of both Australia and the United Kingdom. Importantly, s 18 of the same Act created a consequence for renunciation of citizenship, namely the loss of the status of citizenship under the Citizenship Act and the revival of his status as an alien.

45    There is no intelligible foundation for the appellant’s argument that, in some way, although the Parliament could grant the status of citizenship to a person who followed the process prescribed in s 16 of the Citizenship Act, it could not provide for its negation in s 18 of the same Act if the person chose, of his or her own volition, to renounce the Australian citizenship that he or she had previously enjoyed. As Kiefel CJ, Keane and Gleeson JJ held in Alexander 401 ALR at 450 [50], citizenship is a status of reciprocal rights and obligations. Once the appellant formally and deliberately decided to renounce his citizenship, s 18(4) entailed that, when the Minister registered that declaration he became an alien once again with the status of a citizen of the United Kingdom and a British subject. Because citizenship is not one-sided, the consequence of the Minister registering a voluntary declaration renouncing one’s citizenship under s 18, necessarily must be the reversion to one’s prior status as an alien: Alexander 401 ALR at 450 [50].

46    It is inconceivable that when the Parliament legislated in ss 16 and 18 of the Citizenship Act to enable person to become an Australian citizen and to enable such a person later to renounce that status, it did so in a way that put the person beyond the legislative reach of s 51(xix). Of course, as Gibbs CJ pointed out in Pochi 151 CLR at 109, the Parliament could not expand its legislative power. But the Citizenship Act itself provided in ss 16 and 18 what the consequences of naturalisation and renunciation of citizenship were. Those provisions were part of a cognate enactment in which the Parliament sought to provide for cases in which a person could change his or her status to become an Australian citizen and, if he or she later decided to renounce Australian citizenship, revert to his or her earlier status as an alien.

47    The appellant’s argument is incoherent in asserting that the Parliament, when exercising its legislative power under s 51(xix) with respect to aliens, by allowing their naturalization, thereby ceased to have legislative power to permit renunciation of a naturalised citizen’s status that would cause the revival of his or her earlier status as a citizen of a foreign power, ie: an “alien”. Once a person, who is not an Aboriginal Australian according to the tripartite test in Mabo v Queensland (No 2) (1992) 175 CLR 1, lacks the qualification of the status of citizenship, he or she is an alien: Alexander 401 ALR at 446 [34], Chetcuti 95 ALJR at 711 [15]–[16].

48    The appellant’s reliance, to support his assertion that he is a non-citizen, non-alien, on various statements in judgments about “denaturalization” or “denationalisation” is without foundation. Those statements were not part of the ratio decidendi of any decisions of the High Court, have not been the subject of any legislation or of precise definition and are contrary to the rationes decidendi of the majorities in Alexander 401 ALR 438 and Chetcuti 95 ALJR 704.

49    The appellant sought to give a meaning to “denaturalization” that I have quoted at [#24] above. That meaning is not the natural and ordinary meaning of the expression “denaturalization” used in Nolan 165 CLR at 183. As Gaudron J said in Chu Kheng Lim v Minister for Immigration, Local Government and Ethnic Affairs (1992) 176 CLR 1 at 54, the power to make laws under s 51(xix):

authorises denaturalization laws, it does not, in my view, authorize laws providing for denaturalization in the absence of some failure to observe the requirements associated with naturalization or in the absence of some relevant change in the relationship of the person or persons concerned with the community constituting the body politic (… And note that in Pochi 151 CLR at 109, Gibbs CJ observed that “the Parliament cannot, simply by giving its own definition of ‘alien’, expand the power under s 51(xix) to include persons who could not possibly answer the description of ‘aliens’ in the ordinary understanding of the word”. But cf Meyer v Poynton (1920) 27 CLR 436 at 439–441, where it was accepted that naturalization might be revoked for any reason, a view which was expressly approved by Isaacs J in Ex parte Walsh and Johnson; In re Yates (1925) 37 CLR 36 at 88).

(emphasis added)

50    Here, the relevant change in relationship, to which Gaudron J referred, was that provided in s 18 of the Citizenship Act, namely, the voluntary decision of the appellant to change his relationship to the Australian community by making a declaration renouncing his Australian citizenship. Nothing that Gaudron J said in the passage above supports the appellant’s argument. Indeed, it negates it. The power to provide a means for a person to renounce his or her Australian citizenship was within the Parliament’s competence: Alexander 401 ALR at 450 [50].

51    For those reasons, the appellant, on the Minister’s registration of his declaration of renunciation of Australian citizenship in 1995, became an alien and, therefore, a non-citizen who was subject to the requirements of the Migration Act. If he wished lawfully to remain in Australia, he needed to obtain a visa, as he appears to have done. He held one or more visas until he obtained the visa the subject of the cancellation decision, the effect of which, on his ability to remain in Australia, he challenges in this appeal.

52    Moreover, the renunciation of citizenship is a well-known concept with which the High Court dealt with in cases such as Re Canavan (2017) 263 CLR 284 at 306–307 [44]–[46] per Kiefel CJ, Bell, Gageler, Keane, Nettle, Gordon and Edelman JJ. Their Honours cited with approval what Brennan J had said in Sykes v Cleary (1992) 176 CLR 77 at 113–114, as to how, under Australian law, an Australian dual citizen can renounce his or her citizenship of a foreign power and so affect his or her status. Brennan J held that a person, who holds dual citizenship and seeks that he or she be released from the duty of allegiance or obedience to a foreign power under its laws, will remain a dual citizen until, either, the foreign power releases the person or he or she has taken all reasonable steps under the relevant foreign law to renounce the status, rights, and privileges carrying the duty of allegiance or obedience to the foreign power and to obtain a release from that duty.

53    Here, s 18(1) of the Citizenship Act allowed an Australian dual citizen voluntarily to make a declaration renouncing his or her rights and obligations as a citizen of this country, and therefore, upon registration of the declaration, to assume the status in Australia of an alien, see Alexander 401 ALR at 446 [33]. That is what occurred to the appellant.

54    Accordingly, the appellant’s first ground of challenge must be rejected.

Ground Two: Connecting factors

55    The appellant’s second ground can carry him no further than the first. In essence, his claimed circumstances of connection to the Australian body politic depend on the fact of his naturalisation, but ignore the effect of the Minister’s registration of the declaration of his renunciation of Australian citizenship under s 18(4) of the Citizenship Act. As I have explained, his enrolment as an elector, under s 93(1)(b)(ii) of the Electoral Act, is the consequence of his special status as a British subject who, as at 26 January 1984, was on the electoral roll. That privilege is liable to cancellation because he is an unlawful non-citizen (see ss 93(7)(b), 114(2), 118(1) and (3).

56    The fact that the appellant held a passport granted in 1990, when he was an Australian citizen, says nothing about his current Australian citizenship status, or his right to use the passport, as a matter of law from the moment he ceased to be an Australian citizen.

57    While it may be accepted that he has ongoing familial connections with Australia, including through his Australian citizen daughter, and has resided here for almost all of his life since the age of four, he could not use those connecting factors, on which he relies, to change his constitutional status as an alien that he resumed after the renunciation of his citizenship. As Gibbs CJ made clear in Pochi 151 CLR at 111:

The common law rules as to alienage were no doubt feudal in origin, but there is nothing antiquated in the notion that a person's nationality is not changed by length of residence or by an intention permanently to remain in a country of which he is not a national. There are strong reasons why the acquisition by an alien of Australian citizenship should be marked by a formal act, and by an acknowledgement of allegiance to the sovereign of Australia. The Australian Citizenship Act validly so provides.

(emphasis added)

58    The argument that a person such as the appellant, who is not an Aboriginal Australian according to the tripartite test in Mabo 175 CLR 1, has become totally absorbed in the Australian community and so is somehow no longer an alien, is untenable: Chetcuti 95 ALJR at 711 [14]-[15]. A status of, or equivalent to, an Australian citizen by naturalization under s 16 of the Citizenship Act could only be achieved by an Act of the Parliament and that status is exactly what the appellant abjured when he renounced his citizenship under s 18. For those reasons, ground two must fail.

Conclusion

59    The appeal should be dismissed with costs.

Associate:

Dated:    26 August 2022

REASONS FOR JUDGMENT

(Revised from the Transcript)

ANDERSON J:

60    I agree that the appeal should be dismissed for the reasons given by the learned presiding judge. I also agree with his Honour’s proposed orders.

Associate:

Dated:    26 August 2022

REASONS FOR JUDGMENT

(Revised from the Transcript)

HESPE J:

61    I agree for the reasons given by the presiding judge, that this appeal should be dismissed.

Associate:

Dated:    26 August 2022