Federal Court of Australia

Deyanti v Minister for Immigration and Citizenship [2026] FCAFC 126

ORDERS

THE COURT ORDERS THAT:

1.    The appeal be dismissed with costs.

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

REASONS FOR JUDGMENT

BANKS-SMITH AND STEWART JJ:

Introduction

1    The appellant was born in Jakarta, Indonesia, on 15 May 1984. After both her parents died in Indonesia, she came to Australia with her aunt on an Indonesian passport. She was 16 years old when she entered Australia on a tourist visa.

2    A subsequent tourist visa expired shortly before the appellant’s seventeenth birthday. The appellant’s aunt had left Australia, so the appellant is to be taken as having been abandoned in Australia as a child when the visa expired, which was 6 May 2001.

3    In May 2024, the appellant made an application for evidence of Australian citizenship under s 37 of the Australian Citizenship Act 2007 (Cth) (the 2007 Act). The appellant advanced the case that she was abandoned in Australia as a child and later became stateless, having lost her Indonesian citizenship in about 2010.

4    As part of the application process, the appellant provided to a delegate of the relevant Minister a photocopy of her Indonesian passport that had expired in April 2005. The appellant also provided a letter from the Consulate General of the Republic of Indonesia in Sydney dated 31 October 2022. The letter stated that the Indonesian Passport Office could not confirm the validity of the appellant’s Indonesian passport and could not find details of the passport on its Immigration Passport system. Based on that and other information, the letter declared that the appellant is not an Indonesian citizen and cannot be issued an Indonesian passport until proven otherwise.

5    The delegate refused the appellant’s application for evidence of Australian citizenship. The appellant applied for judicial review of the delegate’s decision under s 39B of the Judiciary Act 1903 (Cth), but that application was dismissed by the primary judge. The appellant appeals from that dismissal.

The relevant statutory provisions

Working out if a person is an Australian citizen

6    Section 37(1) of the 2007 Act, which applied at the time of the application to the delegate, provides that a person may make an application to the Minister for evidence of the person’s Australian citizenship. Section 4(2) of the 2007 Act provides that if, under that Act, it is necessary to work out if a person was an Australian citizen at a time before that Act commenced, it must be worked out under the Australian Citizenship Act 1948 (Cth) (repealed) (the 1948 Act) as in force at that time.

7    It is common ground that the date on which the appellant was abandoned in Australia as a child, ie 6 May 2001, is the relevant date for identifying the provisions of the 1948 Act that are applicable in working out whether she is an Australian citizen.

8    The relevant provision of the 1948 Act, as of 6 May 2001, was as follows (Compilation No 36):

5    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;

(ii)    if born on or after 26 January 1949 and before 6 May 1966—to have been, at the time of birth, a person to whom subsection 10(2) of this Act, as in force at that time, did not apply;

(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; and

(iv)    if born on or after the day on which the Australian Citizenship Amendment Act 1986 comes into operation—to be, at the time of birth, a person to whom paragraph 10(2)(a) of this Act applies and to whom subsection 10(3) of this Act does not apply; …

(Emphasis added.)

9    Section 5(3)(b) is referred to as the abandoned child provision. As will be seen, whether or not the appellant is an Australian citizen under that provision turns on the phrase “unless and until the contrary is proved”. More specifically, it turns on what that phrase qualifies, ie what is it that might be proved to “the contrary” and, if proved, which otherwise deemed fact or consequence does it displace?

10    Section 5(3)(b) is an interpretive provision, rather than being an operative provision. The relevant operative provision is s 10. Each of ss 5(3)(b)(ii), (iii) and (iv) refers to a different period of time, the applicable one in any particular case being determined by the person’s date of birth. Those periods of time coincide with successive versions of s 10. It is convenient to refer to the periods of time as the first, second and third periods.

11    Although, as will be seen, the applicable period of time for determining the appellant’s citizenship claim is the second period because her date of birth falls within it, for the purpose of construing s 5(3)(b) it is convenient to set out the terms of s 10 as they applied in each of the first, second and third periods.

The first period: 26 January 1949 to 5 May 1966

12    The first period (ie s 5(3)(b)(ii)) applies to a person born in the period from 26 January 1949 to 5 May 1966, inclusive. In that period, s 10 was in the following terms (Compilation Nos 1A to 8):

10    Citizenship by birth

(1)    Subject to this section, a person born in Australia after the commencement of this Act shall be an Australian citizen by birth.

(2)    A person shall not be an Australian citizen by virtue of this section if, at the time of his birth—

(a)    his father was not an Australian citizen and possessed the immunity from suit and legal process which is accorded to an envoy of a foreign country accredited to His Majesty; or

(b)    his father was an enemy alien and the birth occurred in a place then under occupation by the enemy.

The second period: 6 May 1966 to 19 August 1986

13    The second period (ie s 5(3)(b)(iii)) applies to a person born in the period from 6 May 1966 to 19 August 1986, being the last day before the Australian Citizenship Amendment Act 1986 (Cth) came into operation. From 6 May 1966 to 21 November 1984, s 10 was in the following terms (Compilation Nos 9 to 20):

10     Citizenship by birth

(1)    Subject to this section, a person born in Australia after the commencement of this Act shall be an Australian citizen by birth.

(2)    A person shall not be an Australian citizen by virtue of this section if, at the time of his birth, his father—

(a)    was not an Australian citizen;

(b)    was not ordinarily resident in Australia; and

(c)    was—

(i)     a person who was entitled in Australia to any immunity from suit or other legal process by virtue of any law relating to diplomatic privileges and immunities (including any law relating to privileges and immunities attaching to persons connected with the Governments of other parts of the Queen’s dominions or with international organizations); or

(ii)     a consular officer of a foreign sovereign power.

(3)    A person shall not be an Australian citizen by virtue of this section if, at the time of his birth, his father was an enemy alien and the birth occurred in a place then under occupation by the enemy.

14    Section 10 of the 1948 Act was amended by s 9 of the Australian Citizenship Amendment Act 1984 (Cth) with effect from 22 November 1984. Thus, s 10 was in the following terms from 22 November 1984 to the end of the second period, ie 19 August 1986 (Compilation Nos 21 and 22):

10    Citizenship by birth

(1)    Subject to this section, a person born in Australia after the commencement of this Act shall be an Australian citizen.

(2)    Subject to subsection (4), a person shall not be an Australian citizen by virtue of this section if, at the time of his birth, a parent of the person—

(a)    was not an Australian citizen;

(b)    was not a permanent resident; and

(c)    was—

(i)    a person who was entitled in Australia to any immunity from suit or other legal process by virtue of any law relating to diplomatic privileges and immunities (including any law relating to privileges and immunities attaching to persons connected with the Governments of other parts of the Queen’s dominions or with international organizations); or

(ii)    a consular officer of a foreign sovereign power.

(3)    Subject to subsection (5), a person shall not be an Australian citizen by virtue of this section if, at the time of his birth, a parent of the person was an enemy alien and the birth occurred in a place then under occupation by the enemy.

(4)    Subsection (2) does not apply in relation to a person if, at the time of his birth, a parent of the person was an Australian citizen or a permanent resident.

(5)     Subsection (3) does not apply in relation to a person if, at the time of his birth, a parent of the person—

(a)    was an Australian citizen or a permanent resident; and

(b)    was not an enemy alien.

The third period: 20 August 1986 to 30 June 2007

15    The third period (ie s 5(3)(b)(iv)) applies to a person born in the period from 20 August 1986 (being the day on which the Australian Citizenship Amendment Act 1986 (Cth) came into operation) to the last day before the repeal of the 1948 Act and the coming into operation of the 2007 Act, ie 30 June 2007. The Australian Citizenship Amendment Act 1986 introduced the concept of citizenship by parentage rather than by birth into Australian law. From 20 August 1986 until 18 December 1989, s 10 was in the following terms (Compilation Nos 23 to 26):

10    Citizenship by birth

(1)    Subject to this section, a person born in Australia after the commencement of this Act shall be an Australian citizen.

(2)    Subject to subsection (3), a person born in Australia after the commencement of the Australian Citizenship Amendment Act 1986 shall be an Australian citizen by virtue of that birth if and only if—

(a)    a parent of the person was, at the time of the person’s birth, an Australian citizen or a permanent resident; or

(b)    the person has, throughout the period of 10 years commencing on the day on which the person was born, been ordinarily resident in Australia.

(3)    Subject to subsection (5), a person shall not be an Australian citizen by virtue of this section if, at the time of the person’s birth, a parent of the person was an enemy alien and the birth occurred in a place then under occupation by the enemy.

(5)    Subsection (3) does not apply in relation to a person if, at the time of the person’s birth, a parent of the person—

(a)    was an Australian citizen or a permanent resident; and

(b)    was not an enemy alien.

(6)    A reference in this section to a permanent resident does not include a reference to a person to whom, by virtue of section 8 of the Migration Act 1958, Division 1 of Part II of that Act does not apply.

16    Section 10 of the 1948 Act was amended by s 38 and Sch 6 of the Migration Legislation Amendment Act 1989 (Cth) with effect from 19 December 1989 until the end of the third period by substituting s 10(6) as follows (Compilation Nos 27 to 42):

(6)    A reference in this section to a permanent resident does not include a reference to a person who is, for the purposes of the Migration Act 1958, an exempt non‑citizen.

The delegate’s reasons

17    The delegate accepted that the appellant was found abandoned in Australia when she was a child, and that s 5(3)(b) of the 1948 Act as it was at that time applied. However, the delegate accepted the copy of her long-expired Indonesian passport as credible evidence that she was born in Jakarta, Indonesia, and was thus not born in Australia. On that basis, the delegate concluded that the contrary of the fact deemed by s 5(3)(b)(i) had been proved, so the appellant was not deemed to have been born in Australia. On that basis she was found not to be an Australian citizen so her application for evidence of citizenship was refused.

The primary judge’s reasons

18    Before the primary judge, the appellant submitted that proof of “the contrary” in s 5(3)(b) required the delegate to prove that the appellant held Indonesian citizenship and was not stateless. Her Honour characterised the issue as what is required to be proved to preclude the operation of the deeming effect of s 5(3)(b)(i) of the 1948 Act (at [12]). Her Honour held that Nicky v Minister for Immigration and Border Protection [2015] FCA 174; 230 FCR 171 and SZRTN v Minister for Immigration and Border Protection [2015] FCAFC 110; 233 FCR 156 applied the construction that in s 5(3)(b) “the contrary” to be proved is the contrary of being “born in Australia”, and that she was bound by the latter Full Court authority (at [28]). On that basis, her Honour held that the delegate applied the law as espoused by the Full Court (at [28]).

19    On the basis that submissions that were put to her had not been put to the Full Court in SZRTN, the primary judge went on to consider whether the construction adopted by the Full Court was correct (at [29]). She concluded that it was (at [30]).

The parties’ central contentions

20    The appellant submits that the only “contrary” fact that must be proved to rebut the deeming effect of the abandoned child provision is that the person is entitled to nationality of a country other than Australia. Thus, in applying the abandoned child provision, the delegate was required to determine whether it had been proved that the appellant was entitled to Indonesian citizenship. The appellant contends that the delegate erred in making no such determination but instead refused her application merely because she was born in Indonesia.

21    The Minister submits that the primary judge was correct to reject the appellant’s construction of s 5(3)(b). The Minister submits that the relevant deemed facts or consequences that apply subject to contrary proof are those set out in each of the subparagraphs of s 5(3)(b), ie ss 5(3)(b)(i)-(iv).

Consideration

The authorities to date

22    It is first necessary to identify what has previously been decided in relation to the proper construction of s 5(3)(b) of the 1948 Act. It is convenient to take the cases in chronological order.

23    The first case is Nicky which is referred to above. Justice Flick held that for the purposes of s 5(3)(b)(i) of the 1948 Act, the “contrary” was proven by the birth certificate showing the appellant to have been born in Indonesia (at [38]). His Honour reasoned that the phrase in s 5(3)(b), “unless and until the contrary is proved”, does not qualify the phrase “abandoned in Australia”, and that it is capable of referring to each of the elements set out in subparas (i) to (iv), stating (at [39]): “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.” Also, his Honour held that s 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” (at [39]).

24    Justice Flick also expressed the view, obiter, that the objective sought to be achieved by s 5(3) of the 1948 Act, as with s 14 of the 2007 Act, is to determine the citizenship of a child who has been found abandoned in Australia – they either have Australian citizenship or such other citizenship as can be proved (at [44], [45]). The appellant in the present case understandably places significant reliance on that statement, but given the dispositive conclusion his Honour had already reached, the statement is clearly not part of the ratio decidendi.

25    The next case, which was heard and decided less than a month after the reasons for judgment in Nicky were handed down, is the first instance decision in SZRTN v Minister for Immigration and Border Protection [2015] FCA 305. The applicant was not represented by a lawyer at first instance or on appeal. Justice Perram held, first, as in Nicky, that “the contrary” does not qualify “abandoned in Australia” (at [19]-[23]). Second, his Honour preferred the construction of s 5(3)(b) that “the contrary” means the contrary of the deemed fact that the person was born in Australia (at [23]). Since it was proved that the applicant was born in Samoa, 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 1948 Act (at [24]). Substituting Indonesia for Samoa, that is exactly the basis on which it had been decided in Nicky that the appellant did not have Australian citizenship.

26    On appeal, the Full Court (as referred to above), as ratio, endorsed the construction in Nicky and at first instance in SZRTN that proof that the foundling was born outside Australia displaces the deeming effect of s 5(3)(b)(i) (at [12]-[14] per Flick, Reeves and Griffiths JJ). SZRTN does not deal expressly with whether “proof to the contrary” applies, or can also apply, to each of subparas (ii) to (iv) of s 5(3)(b) although the statement to the effect that it does so apply in Nicky at [39] was quoted with apparent approval (at [13]).

27    There is no other authority on the proper construction of s 5(3)(b) of the 1948 Act. The primary judge in the present case was accordingly correct to identify that she was bound by SZRTN and to apply it.

28    This Court is also bound to follow the interpretation placed on s 5(3)(b) of the 1948 Act by SZRTN, as a decision of a prior Full Court, unless convinced that that interpretation is plainly wrong or, to use a different expression, unless there is a compelling reason not to do so: Hill v Zuda Pty Ltd [2022] HCA 21; 275 CLR 24 at [25]; Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v FAK19 [2021] FCAFC 153; 287 FCR 181 at [2]‑[20] per Allsop CJ, Kerr and Mortimer JJ agreeing.

29    The appellant submits that this Court is not bound in that way by SZRTN because the latter case did not decide whether the abandoned child provision should be construed in the manner for which the appellant contends, and, with reference to The Queen v Hughes [1866] LR 1 PC 81 at 92-93, a judicial decision is only binding in respect of questions that were argued. We do not accept that submission. The specific point in issue in the present case is whether proof that the foundling was not born in Australia displaces the deeming effect of s 5(3)(b)(i) of the 1948 Act. That exact point was in contest and it was decided in SZRTN. The fact that the particular argument now advanced by the appellant was not advanced to the Court in SZRTN in that contest does not displace the precedential effect of the ratio in SZRTN as the same question was argued. It is not the position that a rule decided in a prior case is not binding merely because a particular argument now advanced against the rule was not advanced in the previous case: Cross R and Harris JW, Precedent in English Law (4th ed, Clarendon Press, 1991) at 158-161 (cf R v McGregor [2026] HCA 3; 427 ALR 699 at [128] per Edelman J; La Perouse Local Aboriginal Land Council v Quarry Street Pty Ltd [2025] HCA 32; 424 ALR 391 at [137] per Edelman J). The Queen v Hughes is not authority to the contrary. There, in an appeal from the Supreme Court of South Australia, the Judicial Committee of the Privy Council held that an earlier decision was not binding on the point in issue because the point had been assumed and not decided. That remains the rule in Australia (eg CSR Ltd v Eddy [2005] HCA 64; 226 CLR 1 at [13]; Bell Lawyers Pty Ltd v Pentelow [2019] HCA 29; 269 CLR 333 at [28]), but it is of no assistance to the appellant as the relevant construction in SZRTN is not one that was assumed; it was decided.

30    It follows that this Court must follow the Full Court in SZRTN unless persuaded that there is compelling reason not to do so. The appellant’s submissions should be taken to include, in effect, that SZRTN is plainly wrong and should not be followed.

Construing s 5(3)(b)

31    Turning now to the proper construction of s 5(3)(b) of the 1948 Act, as the primary judge rightly observed (at [14]), quoting from Palmanova Pty Ltd v Commonwealth [2025] HCA 35; 99 ALJR 1362 at [4] (omitting footnotes):

Statutory construction is the process of attributing meaning to statutory text. The construction of a statutory provision begins and ends with the statutory text understood in context and in light of the statutory purpose – being what the provision is designed to achieve in fact – insofar as that purpose is discernible from the statutory text and context. In the construction of a provision of a Commonwealth statute, the meaning that would best achieve the statutory purpose so discerned is to be preferred to each alternative meaning.

32    There is no contest about the applicable principles; the contest lies in their application.

33    The parties in the present case accept the position decided in the previous cases that “the contrary” does not qualify “found abandoned in Australia”.

34    Although the Minister advocates for a construction where “the contrary” qualifies each of the subparagraphs of s 5(3)(b), the appeal would fail whether that is correct or whether it is only subpara (i) that is so qualified. Also, as canvassed above, the previous cases were decided on the basis that subpara (i) could be disproved although statements were made that the other subparagraphs were also qualified by proof to “the contrary”. There are thus three constructions that arise for consideration – those two and the appellant’s construction. It is convenient to take each in turn.

Construction 1

35    Construction 1 is that the phrase “unless and until the contrary is proved” applies only to the deeming in subpara (i), ie what is required to be proved is that the foundling was not born in Australia. On that construction, unless it is proved that the foundling was not born in Australia, in which case s 10 would have no application at all, s 10 would apply save to the extent that parts of it were disapplied or applied by the deeming effect of whichever of paras (ii), (iii) or (iv) was relevant. Thus, in the first period the foundling deemed to have been born in Australia would be an Australian citizen by virtue of s 10(1) even if their father was, at the time of the foundling’s birth, proven to be a foreign diplomat or an enemy alien as described in s 10(2) as it was in that period because s 10(2) would be disapplied by s 5(3)(b)(ii).

36    Similarly, in the second period the foundling deemed to have been born in Australia would be an Australian citizen by virtue of s 10(1) even if one of their parents was, at the time of the foundling’s birth, proven not to be an Australian citizen or permanent resident and was a foreign diplomat or an enemy alien as described in ss 10(2) and (3) as they were in that period. There would be a similar result in respect of the third period.

37    At its core, the proposition is that subparas (i) to (iv) are not to be read as being cumulative. Rather, subpara (i) is cumulative with subpara (ii) or (iii) or (iv), whichever is the relevant one in a particular case as determined by the person’s date of birth. Understood in that way, the proof to the contrary of the deeming provision applies only to subpara (i) and not to any of the following subparagraphs. That approach to the reading of the provision pays less regard to its structure and puts greater emphasis on its language. Taking the first period as an example, it has the effect that the provision would read as follows:

For the purposes of this Act, a person who, when a child, was found abandoned in Australia shall, unless and until the contrary is proved, be deemed to have been born in Australia; and

(ii)    if born on or after 26 January 1949 and before 6 May 1966—to have been, at the time of birth, a person to whom subsection 10(2) of this Act, as in force at that time, did not apply;

38    The principal difficulty with construction 1 is that there is no reason with reference to the text and structure of s 5(3)(b) why “unless and until the contrary is proved” should qualify only one, and not each, of the successive subparagraphs. The relevant phrase, “unless and until the contrary is proved”, and the phrase “be deemed”, are in the chapeau. On any ordinary reading they either qualify something in the chapeau or in each of the subparagraphs that follow, but not only one of them. Construction 1 ignores that what is stated in subpara (i) is in a subparagraph rather than itself being in the chapeau. Also, construction 1 overlooks the phrases “to have been” in each of subparas (ii) and (iii) and “to be” in subpara (iv) which can sensibly only apply if the deeming provision applies to each of them. The text does not allow these subparagraphs to have anything other than a deemed effect. Proof to the contrary cannot sensibly apply to the one deeming provision, ie born in Australia, and not also apply to each of the other deeming provisions (ie in each of the other subparagraphs).

39    Thus, aside from contorting the text and structure to accord with an extraneously identified legislative purpose, there is no cause to read the section in that way.

Construction 2

40    Construction 2, which is the construction the Minister contends for, is that the phrase “unless and until the contrary is proved” in s 5(3)(b) of the 1948 Act applies to each of subparas (i) to (iv). On that construction, if it is proved that the foundling was not born in Australia then, as with construction 1, s 10 would have no application and one would need to look no further to work out whether the person is an Australian citizen by virtue of birth. However, if it was not proved that the foundling was not born in Australia, construction 2 postulates that “the contrary” of the deeming in whichever of subparas (ii) to (iv) is applicable can be proved.

41    As a matter of language and structure, the phrase “unless and until the contrary is proved” in s 5(3)(b) of the 1948 Act could apply to each of subparas (i) to (iv) – indeed, as a matter of language and structure that is the most obvious reading. The statement of fact in subpara (i) and the statement of non-application in subpara (ii), (iii) or (iv) (and also application in (iv)), whichever of those subparas applies, shall be “deemed” to be the case “unless and until the contrary is proved”.

42    In the first period, that contemplates that it might be proved that the foundling was not, at the time of their birth, a person to whom s 10(2) of the 1948 Act, as then in force, did not apply. That is an awkward double negative, but it is possible to give effect to it. Proving the contrary of the non-application of s 10(2) would involve proving its application. That would involve proof that, at the time of the foundling’s birth, the foundling’s father was not an Australian citizen and possessed the relevant diplomatic immunity (s 10(2)(a)), or that the foundling’s father was an enemy alien and the birth occurred in a place then under occupation by the enemy (s 10(2)(b)).

43    Thus, the disapplication of s 10(2) by s 5(3)(b)(ii) “unless and until the contrary is proved” has the same effect in relation to the disqualifying factors in s 10(2) for a child actually born in Australia. A child born in Australia in the first period who would ordinarily enjoy citizenship under s 10(1) would not be an Australian citizen under that provision if either of the disqualifying factors in s 10(2) were present. Similarly, a child born in the first period and subsequently found abandoned in Australia, in respect of whom it was not proved that they were not born in Australia, would be an Australian citizen under s 10(1) and the disqualifying factors in s 10(2) would be deemed not to be present “unless and until the contrary was proved”. That is to say, they would not be an Australian citizen under s 10(1) if either of the disqualifying factors in s 10(2) were present. Thus, on construction 2, subpara (ii) is superfluous in relation to the first period; it does no work at all.

44    The same analysis can be applied in respect of the second period.

45    In the first part of the second period, ie 6 May 1966 to 21 November 1984 (extracted at [13] above), proof to the contrary of ss 10(2) and (3) not applying would involve proof of the disqualifying facts identified in each of those subsections. That would have exactly the same effect as for non-abandoned children born in Australia.

46    The position is a little more complex in respect of the second part of the second period, ie 22 November 1984 to 19 August 1986 (extracted at [14] above). That is because of the inclusion of ss 10(4) and (5) to which ss 10(2) and (3) are respectively subject. However, the effect is the same. Proof to the contrary of the deemed non-application of ss 10(2) and (3), would involve proof of the disqualifying facts in each of those subsections. If there was such proof in relation to one or other subsection, then that subsection would apply unless it was disapplied by s 10(4) or s 10(5), as applicable. Once again, that would put the foundling and the non-abandoned child born in Australia in the same position leaving s 5(3)(b)(iii) with no work to do.

47    Turning now to the third period, there is a material difference. That is because s 5(3)(b)(iv) deems s 10(2)(a) to apply, rather than to not apply. But in substance the effect is the same. That is because unlike the previous versions of s 10(2) which contain disqualifying factors for citizenship, in the third period s 10(2) contains qualifying factors. Thus, proof to the contrary of s 10(2)(a) applying would involve proof that neither of the person’s parents was, at the time of the person’s birth, an Australian citizen or a permanent resident. That would be the same position as for a non-abandoned child born in Australia.

48    In the result, construction 2 renders ss 5(3)(b)(ii), (iii) and (iv) redundant; they do no work at all. Such a construction is generally to be avoided as a court construing a statutory provision must strive to give meaning to every word of the provision: Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; 194 CLR 355 at [71]. Although, as Flick J explained in Nicky (at [39]), an assertion that, for example, s 10(2) or (3) applied, as a matter of fact, to a particular person’s circumstances is something that is capable of being proved, a construction that postulates that is less than optimal because of the resultant redundancy.

Construction 3

49    Turning now to construction 3, the appellant submits that the contrary to be proved is entitlement to Australian citizenship. On that construction, the foundling is deemed by s 5(3)(b)(i) to have been born in Australia and is therefore, by s 10(1), an Australian citizen unless it is proved that the person is a citizen of another country.

50    There are a number of difficulties with that approach.

51    First, and in short, the appellant’s construction has no foothold in the text. There is nothing in s 5(3)(b) that says anything about the person’s citizenship or nationality. One only gets to citizenship via s 10(1) if the deeming in s 5(3)(b)(i) applies, making it particularly tenuous and far removed from the text to say that “the contrary” in s 5(3)(b) qualifies citizenship in s 10(1).

52    Second, there is nothing in the 1948 Act that provides that if someone is a citizen of another country they cannot, for that reason, be a citizen of Australia by birth under s 10. Section 17 of the 1948 Act provides that an Australian citizen over the age of 18 ceases to be an Australian citizen if they do any act or thing the sole or dominant purpose of which, and the effect of which, is to acquire the nationality or citizenship of a foreign country. Also, as already canvassed, there are citizenship-disqualifying factors within s 10 some of which refer to the foreign citizenship of the person’s parent or parents, but none of which refers to the person’s own foreign citizenship. The point is that the fact of being a citizen (or being entitled to citizenship) of another country does not disqualify a person from Australian citizenship by birth under s 10 and is therefore not proof to the contrary of Australian citizenship.

53    Third, and relatedly, the construction is circular. That is because the very thing sought to be determined by the combined operation of s 10(1) and s 5(3)(b) is whether or not the person is an Australian citizen.

54    The essential submission made on behalf of the appellant is that constructions 1 and 2 defeat the legislative purpose of s 5(3)(b) which is said to be to meet Australia’s obligations on the international plane under the United Nations Convention on the Reduction of Statelessness 1961 – Australia acceded to the Convention with effect from 13 December 1975. The submission is that those interpretations have the result that a foundling who was born overseas does not benefit from the abandoned child provision by acquiring Australian citizenship even if they would otherwise be stateless. The present is such a case – the Indonesian authorities have formally stated that on the current evidence the appellant is not a citizen of Indonesia and there are no records of her there, yet because there is proof accepted by the delegate that she was born in Indonesia she does not qualify for Australian citizenship under s 10(1) of the 1948 Act as it was at the relevant time.

55    The legislative history shows that the abandoned child provision was introduced into Australian law with reference to the Convention. Paragraph (d) of s 5 of the Citizenship Act 1969 (Cth) inserted an earlier version of the abandoned child provision as s 5(3)(aa) of the Nationality and Citizenship Act 1948 (Cth), which became the 1948 Act. The Explanatory Memorandum to the Citizenship Bill 1969 (Cth) stated (at 4):

Paragraph (d) of clause 5 inserts into the legislation a new provision which will ensure that a child found in Australia shall be deemed to be an Australian citizen by birth. The United Nations Convention on the Reduction of Statelessness, to which Australia is a signatory, provides that a child found in a State shall be recognised as a citizen of that State, and this provision will allow Australia to conform to the Convention in that respect.

56    The Minister for Immigration’s second reading speech on the Bill was to similar effect: “Paragraph (d) of clause 5 provides, in conformity with the United Nations Convention on the Reduction of Statelessness, that a child found in Australia shall be deemed an Australian citizen by birth.”

57    Article 1 of the Convention relevantly provides that “A Contracting State shall grant its nationality to a person born in its territory who would otherwise be stateless”. The notion of citizenship by birth, subject to exceptions, is expressed in s 10(1) of the 1948 Act. Section 23D of the 1948 Act provides for citizenship by birth of someone born in Australia who would otherwise be stateless. It can be seen to give effect to Art 1 of the Convention.

58    Article 2 of the Convention provides that:

A foundling found in the territory of a Contracting State shall, in the absence of proof to the contrary, be considered to have been born within that territory of parents possessing the nationality of that State.

59    Contrary to the statement in the primary judgment (at [35]) that Art 2 “does not refer to any consideration broader than birth” and that s 5(3)(b)(i) reflects Art 2, Art 2 has two elements – birth in Australia and birth to Australian parents, only the first of which is reflected in s 5(3)(b)(i). The statutory text does not include the second element. It may be, as stated in Nicky (at [44]), that the objective sought to be achieved by s 5(3)(b), as with s 14 of the 2007 Act, was to determine the citizenship of a child who has been found abandoned in Australia on the basis that the child either has Australian citizenship or such other citizenship as can be proved; but, whether that purpose was realised is necessarily governed by the text of the provision.

60    As the primary judge correctly held (at [40]), the Court must interpret the legislation, not the Convention. An international treaty (or customary international law obligations of a similar nature) can operate as a source of rights and obligations under domestic law only if, and to the extent that, it has been enacted by the Parliament: Plaintiff M1/2021 v Minister for Home Affairs [2022] HCA 17; 275 CLR 582 at [20]. The provisions of an international treaty to which Australia is a party do not form part of Australian law unless those provisions have been validly incorporated into Australia’s municipal law by an Act of Parliament: Minister for Immigration and Ethnic Affairs v Teoh [1995] HCA 20; 183 CLR 273 at 286-287. It is the relevant enactment by the Parliament that must be construed.

61    We accept, as submitted on behalf of the appellant, that the conclusion that “the contrary” qualifies “born in Australia” has the result that there will be cases, such as the present, where an injustice seems to be done and where the person is left stateless, something which as a general proposition appears to be contrary to the purpose of the abandoned child provision as gleaned from the Convention. However, the text chosen by the Parliament does not admit of an available construction to avoid that result.

Which construction is correct?

62    On the above analysis, none of the competing constructions is without significant difficulty. One cannot conclude with any confidence that one or other of the constructions is correct. One can be even less confident that the construction adopted by the Full Court in SZRTN that “unless and until the contrary is proved” qualifies s 5(3)(b)(i) is plainly wrong or that there is compelling reason not to follow it. In those circumstances, as explained, that construction must be followed and applied. That satisfies the obligation on the Court to find and apply a statutory meaning no matter how difficult that task: see Brown v Tasmania [2017] HCA 43; 261 CLR 328 at [452].

63    On that basis, the delegate did not err.

Disposition

64    In the result, the appeal should be dismissed with costs.

Associate:

Dated:    23 September 2026

REASONS FOR JUDGMENT

YOUNAN J:

65    I have had the considerable advantage of reviewing the joint reasons of Banks-Smith and Stewart JJ in draft form.

66    I agree that the appeal should be dismissed, with costs. I agree with their Honours’ reasons for rejecting the appellant’s construction of s 5(3)(b) of the Australian Citizenship Act 1948 (Cth) (repealed) (1948 Act), that “the contrary” to be proved is entitlement to foreign citizenship (“construction 3”).

67    However, in my view, “the contrary” in s 5(3)(b) of the 1948 Act is a reference to the opposite of having been born in Australia (“construction 1”), and not also of the facts that may be proved in the application of s 10(2) and (3) of the 1948 Act, which is the construction favoured by the Minister (“construction 2”). The view that “the contrary” is a reference to the opposite of having been born in Australia is consistent with the finding of Perram J in SZRTN v Minister for Immigration and Border Protection [2015] FCA 305 at [23], which was not disturbed on appeal (SZRTN v Minister for Immigration and Border Protection [2015] FCAFC 110; 233 FCR 156 at [14] per Flick, Reeves and Griffiths JJ), and with the finding of the primary judge: Deyanti v Minister for Immigration and Citizenship [2025] FCA 1430 (primary judgment) at [30]–[31].

68    In my view, the conclusion that construction 2 renders s 5(3)(b)(ii), (iii) and (iv) redundant, with which I agree, defeats that construction in circumstances where an alternative reading is available.

69    Contrary to their Honours’ view, I do not consider that construction 1 contorts the text and structure of s 5(3)(b) of the 1948 Act, for the reasons I outline below.

70    The difference in approach does not alter the result that the appeal should be dismissed. As with construction 2, if it is proved that the person was not born in Australia, as is the present case (primary judgment at [2], [4]), then s 10 of the 1948 Act would have no application.

Preferred construction: the contrary of being born in Australia

71    I gratefully adopt their Honours’ review of the background to this matter and survey of the relevant statutory provisions. For ease of reference, I outline s 5(3)(b) of the 1948 Act at the relevant time, which appeared as follows:

5    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;

(ii)    if born on or after 26 January 1949 and before 6 May 1966—to have been, at the time of birth, a person to whom subsection 10(2) of this Act, as in force at that time, did not apply;

(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; and

(iv)    if born on or after the day on which the Australian Citizenship Amendment Act 1986 comes into operation—to be, at the time of birth, a person to whom paragraph 10(2)(a) of this Act applies and to whom subsection 10(3) of this Act does not apply;

…

(Emphasis added.)

72    The perceived difficulty with this construction appears to lie with the ‘deeming’ in s 5(3)(b), which operates “unless and until the contrary is proved” in the chapeau (i.e., the proviso). The proviso lies in the chapeau to s 5(3)(b), and therefore to each of the subparagraphs that follow. As their Honours observe, this is reinforced by the references to “to have been” or “to be” in subparas (ii) to (iv), which correspond to the ‘deeming’ in the chapeau.

73    Construction 1 does not deny that the deeming applies to each subparagraph: i.e., (a) to deem a person to have been born in Australia; and (b) to deem the application or disapplication of the relevant subsections of s 10 of the 1948 Act.

74    However, the proviso (“the contrary”) only has application to being born in Australia, in s 5(3)(b)(i), and as that subparagraph applies to subparas (ii), (iii) or (iv).

75    This construction relies on four salient aspects of s 5(3)(b) and s 10 of the 1948 Act (as the latter appears in the relevant periods):

(i)    the cumulative operation of s 5(3)(b)(i), (ii), (iii) “and” (iv);

(ii)    the ubiquity of s 5(3)(b)(i), which subsists in the application of each of subparas (ii), (iii) and (iv);

(iii)    the mutual exclusivity of s 5(3)(b)(ii), (iii), and (iv), by reference to their applicable time period; and

(iv)    the conditional application of the relevant subsections in s 10, i.e., “if” certain prescribed circumstances are met.

76    From this, two propositions follow in the application of s 5(3)(b).

77    First, in each scenario in s 5(3)(b)(i), (ii), (iii) and (iv) – i.e., in each scenario contemplated by the cumulative operation of subparas (i) and (ii); (i) and (iii); or (i) and (iv) – the person will be deemed to have been born in Australia unless and until the contrary of that proposition is proved. In this way, the proviso in the chapeau has work to do in the application of each of the subparagraphs, and not simply s 5(3)(b)(i): see Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; 194 CLR 355 at [71] per McHugh, Gummow, Kirby and Hayne JJ.

78    Second, the conditional propositions in the relevant subsections in s 10 do not lend themselves to a “contrary” position.

79    In this regard, the Minister cites Flick J in Nicky v Minister for Immigration and Border Protection [2015] FCA 174; 230 FCR 171 at [39] as authority for the proposition that there is no reason that the “factual content” of s 10(2) and (3) cannot be rebutted by contrary proof. That may be so, but the subject of the ‘deeming’ in s 5(3)(b)(ii) to (iv) is the application or non-application of the conditional propositions in s 10(2) and (3) entitling a person to, or disentitling a person from, Australian citizenship “if” certain conditions are met. The contrary or opposite of such a proposition is to assume satisfaction of the condition (e.g., at the time of the person’s birth, the father of the person was an enemy alien and the birth occurred in a place then under occupation by the enemy) as a premise to its application (such that the person shall not be an Australian citizen). This is to be distinguished from contrary proof of a non-conditional proposition, such as a person having been born in Australia, which requires no such assumption or acrobatics.

80    Construction 1 avoids the logical dilemma of seeking to prove “the contrary” of facts that may (or may not) be proved in the application of s 10(2) and (3) of the 1948 Act, but which are deemed to apply or not to apply by virtue of s 5(3)(b)(ii), (iii) and (iv). The deeming exercise is circular and otiose if one is to ascertain the application of the provisions that are to be applied or disapplied by operation of the deeming provision. A construction that is productive of redundancy is to be avoided. Such an outcome is “absurd” or “irrational” in the sense that the legislature would not have intended s 5(3)(b) to operate in this way, and that an alternative approach is to be preferred: Cooper Brookes (Wollongong) Pty Ltd v Commissioner of Taxation [1981] HCA 26; 147 CLR 297 at 320–321 per Mason and Wilson JJ; Legal Services Board v Gillespie-Jones [2013] HCA 35; 249 CLR 493 at [48] per French CJ, Hayne, Crennan and Kiefel JJ. In my view, the preferred alternative approach is construction 1. The statutory text does not require construction 2: see Uelese v Minister for Immigration and Border Protection [2015] HCA 15; 256 CLR 203 at [45] per French CJ, Kiefel, Bell and Keane JJ.

81    Construction 1 is also supported by the Explanatory Memorandum to the Australian Citizenship Amendment Bill 1986 (Cth) (at 2, Note on “Clause 3. Interpretation”) which reads:

This clause effects a technical amendment to paragraph 5(3)(aa) of the Act which broadly has the effect of conferring citizenship on abandoned children by deeming such children to have been born in Australia and by exempting them from certain requirements under section 10. The provision, which will be re-numbered paragraph 5(3)(b), will take into account various amendments to section 10 made since the coming into operation of the Act.

(Emphasis added.)

82    There is no suggestion that the ‘exemption’ may or may not apply depending on satisfaction of the requirements under s 10, as distinct from the direct operation of s 5(3)(b). In that regard, the fact that s 5(3)(b) is an interpretational provision is significant. It is a tool in the application of the other (relevant) provisions of the 1948 Act. It does not depend (for its interpretation) on the application of those other provisions. Such would be to undermine its utility as an interpretative aid.

83    For these reasons, I agree with the orders proposed by Banks-Smith and Stewart JJ.

Associate:

Dated:    23 September 2026