FEDERAL COURT OF AUSTRALIA

Walsh v Minister for Immigration & Multicultural Affairs [2001] FCA 1886

CITIZENSHIP -  whether applicant was entitled to permanent residence in Australia – application for registration of Australian citizenship by descent under s 10C of the Australian Citizenship Act 1948 (Cth) – whether applicant was born outside of Australia – effect of the granting of independence to Papua New Guinea – inter-relationship between s 10C and s 5 of the Australian Citizenship Act 1948 (Cth)

Australian Citizenship Act 1948 (Cth), ss 10B, 10C, 11, 17, 18, 19, 23

Australian Citizenship Act 1948 – 1973 (Cth), s 11

Papua and New Guinea Independence Act 1975 (Cth), s 6

Migration Act 1958 (Cth) (No 62 of 1958), ss 6(1), 6(2), 6(6)

Migration Amendment Act 1983 (Cth), s 3

Constitution of Papua New Guinea, s 65(1), 65(4), 65(5)

Papua and New Guinea Independence (Australian Citizenship) Regulations, reg 4, Schedule 1

Nolan v Minister for Immigration and Ethnic Affairs (1988) 165 CLR 178, referred to

The King v Macfarlane; Ex parte O’Flanagan and O’Kelly (1923) 32 CLR 518, referred to

Air Caledonie International v The Commonwealth (1988) 165 CLR 462, considered

Pochi v Macphee (1982) 151 CLR 101, considered

Chu Kheng Lim v Minister for Immigration, Local Government and Ethnic Affairs (1992) 176 CLR 1, considered

The Immigration Kit (6^th Edition), Immigration Advice and Rights Centre, The Federation Press

SUSAN WALSH v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

Q 125 OF 2001

DOWSETT J

24 DECEMBER 2001

BRISBANE

ON APPEAL FROM A PRESIDENTIAL MEMBER OF THE ADMINISTRATIVE APPEALS TRIBUNAL

THE COURT ORDERS THAT:

1.         The appeal be allowed.

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

ON APPEAL FROM A PRESIDENTIAL MEMBER OF THE ADMINISTRATIVE APPEALS TRIBUNAL

REASONS FOR JUDGMENT

1                     The applicant was born on 13 July 1970 in Hohola Central District in what is now Papua New Guinea.  On 14 February 2000 she applied for registration as an Australian citizen pursuant to the Australian Citizenship Act 1948 (Cth) (the “Citizenship Act”), apparently in reliance upon s 10C.  That application was unsuccessful.  The applicant applied to the Administrative Appeals Tribunal for review of that decision which application was also unsuccessful.  This is an appeal from the Tribunal’s decision.  The relevant facts are very brief and appear from the judgment of the Deputy President.  At the time of Ms Walsh’s birth Papua was an external territory of Australia whilst New Guinea was administered by Australia as a United Nations trusteeship.  The applicant’s mother was an indigenous Papuan.  Her father was an Australian citizen.  On 16 September 1975 (“Independence Day”), Papua and New Guinea became a united and independent nation.  The applicant’s father died in 1982, at which time he was still an Australian citizen.  Her parents were not married until after Independence Day.

2                     Subsection 10(1) of the Citizenship Act currently provides as follows:

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

3                     Section 10A deals with the citizenship of a person who has been adopted by an Australian citizen and is not presently relevant.  Section 10B deals with “citizenship by descent” providing relevantly:

(1)       A person born outside Australia (in this subsection referred to as the relevant person) is an Australian citizen if:

(a)       the name of the relevant person is registered for the purposes of this section at an Australian consulate, and the registration is the result of an application made within 18 years of the person’s birth to register the person’s name for those purposes; and

(b)       a person, being a parent of the relevant person at the time of the birth of the relevant person:

(i)        was at that time an Australian citizen who had acquired Australian citizenship otherwise than by descent; or

(ii)       …

4                     Section 10C provides as follows:

(1)       A person who is registered under this section is an Australian citizen.

(2)       A person may apply to the Minister to be registered under this section.

(3)       The application must be in accordance with the approved form.

(4)       The Minister must register, in the prescribed manner, an applicant for registration under this section if:

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

(b)       that parent:

(i)        is an Australian citizen at the time an application under this section is made; or

(ii)       is dead and at the time of his or her death was an Australian citizen; and

(c)        the applicant:

(i)        was born outside Australia on or after 26 January 1949; and

(ii)       is aged 18 years or over on the day on which this section commences; and

(iii)      failed for an acceptable reason to become registered as an Australian citizen under:

(A)       section 10B; or

(B)       section 11 of this Act as in force at any time before the commencement of section 10B; and

(d)       the Minister is satisfied that the applicant is of good character.

(5)       …

(6)       …

(7)       …

5                     Obviously, registration pursuant to s 10C is only available to a person who has been entitled to registration under either s 10B or s 11 in its earlier forms but has failed to take advantage of that opportunity.  It is conceded that if the applicant was entitled to registration under either section, she had an acceptable reason for failing to achieve it.  Section 11, in its present form, is not relevant for the purposes of this judgment, but it will be necessary to refer to it in its previous form.

6                     When the Citizenship Act was first enacted, subs 5(1) provided that the term  “Australia” included Papua.  The definition was later amended by deleting reference to specific territories and including the words “the Territories that are not trust territories”.  This description included Papua but not New Guinea.  That was the position on Independence Day.  Subsection 10(1) of the Citizenship Act as enacted in 1948 provided that:

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

7                     The subsection remained in this form until after Independence Day.  By virtue of this provision, the applicant was an Australian citizen.  On Independence Day Papua ceased to be a territory of Australia and became part of Papua New Guinea.  Subsections 65(1) and 65(4) of the Constitution of Papua New Guinea (the “PNG Constitution”) provided:

(1)       A person born in the country before Independence Day who has two grand-parents who were born in the country or an adjacent area is a citizen.

(4)        Subsections (1) and (2) do not apply to a person who –

(a)        has a right (whether revocable or not) to permanent residence in Australia; or

(b)        is a naturalized Australian citizen; or

(c)        is registered as an Australian citizen under Section 11 of the Australian Citizenship Act 1948 – 1975 of Australia; or

(d)        is a citizen of a country other than Australia,

unless that person renounces his right to residence in Australia or his status as a citizen of Australia or of another country in accordance with Subsection (5).

8                     It is common ground that the applicant satisfied subs 65(1).  She would appear to have become a citizen of Papua New Guinea unless she had a permanent right of residence in Australia. 

9                     Section 6 of the Papua and New Guinea Independence Act 1975 (Cth) (the “Independence Act”) authorized the Governor-General of Australia to make regulations:

making provision for or in relation to matters arising out of or connected with the attainment of the independence of Papua New Guinea, including regulations making modifications or adaptations of any Act.

10                  Regulation 4 of the “Papua and New Guinea Independence (Australian Citizenship) Regulations (the “regulations”) provided that:

A person who –

(a)       immediately before Independence Day, was an Australian citizen within the meaning of the Act; and

(b)       on Independence Day becomes a citizen of the Independent State of Papua New Guinea by virtue of the provisions of the Constitution of the Independent State of Papua New Guinea,

ceases on that day to be an Australian citizen.

11                  The “Act” is the Citizenship Act.  If the applicant became a citizen of Papua New Guinea on Independence Day, then she ceased to be an Australian citizen.  She claims that she did not become a citizen of Papua New Guinea and so did not cease to be an Australian citizen, advancing two bases for such entitlement, namely:

•                 As at Independence Day she was entitled to permanent residence in Australia because of her status as an Australian citizen; and/or

•                 She was, in any event, entitled to residence in Australia by virtue of her father’s entitlement to permanent residence.

12                  Alternatively, the applicant claims citizenship upon the basis that either ss 10B or 10C of the Citizenship Act confers upon her a right to that status. 

13                  Before considering the legislation in more detail, it is important to clarify two issues.  Firstly, citizenship is purely the creature of statute.  See Nolan v Minister for Immigration and Ethnic Affairs (1988) 165 CLR 178 at 184.  Prior to the commencement of the Citizenship Act, Australian-born or naturalized persons who were permanently resident here had the status of British subjects.  The Citizenship Act created the concept of Australian citizenship and continues to regulate entitlement to it.  Secondly, it has long been accepted that an Australian national may, in some circumstances, enter Australia as an immigrant.  Regulation of such entry is within the constitutional competence of the Commonwealth Parliament.  See The King v Macfarlane; Ex parte O’Flanagan and O’Kelly (1923) 32 CLR 518 at 580 where Starke J said:

Immigration and emigration in the Constitution connote the movement of human beings into and out of the Commonwealth.  And a law with respect to these subjects may not only encourage that movement but also restrict it.  The power to deal with this movement is not founded upon the intent of the person entering into or departing from the Commonwealth, but upon the fact of entry or of departure … .  But the Constitution unites into a Federal Commonwealth the people of Australia.  The entry into the Commonwealth of a person who at the moment of entering is already one of the people of Australia could hardly be described as an immigration into the Commonwealth:  it would in truth be the return of an Australian to his homeland.  And so this Court has decided … .  Whether any given person is one of the people of Australia is necessarily a question of fact.  I agree, however, … and am of opinion that neither locality of birth nor nationality nor domicile is a decisive test, but simply an evidentiary fact, of more or less weight according to the circumstances of the particular case.

Right of residence in Australia

14                  Until 1984, subs 6(1) of the Migration Act 1958 (Cth) (the “Migration Act”) provided:

An immigrant who, not being the holder of an entry permit that is in force, enters Australia thereupon becomes a prohibited immigrant.

15                  Subsection 6(2) provided for the issue of entry permits.  Subsection 6(6) contemplated an entry permit which was “intended to operate as a temporary entry permit”, and so implicitly also recognized a permanent entry permit.  Once it is accepted that an Australian citizen may, in some circumstances, enter Australia as an immigrant for the purposes of the Constitution, it follows that subs 6(1) in the above form regulated entry by an Australian citizen who had not previously resided here.  Such a person could not have entered the country without an entry permit and so could not have been entitled to permanent residence.

16                  It seems that the Migration Amendment Act 1983 (Cth) (which came into force in 1984) effected a fundamental change in the nature of that legislation.  It is said that it ceased to be legislation enacted primarily pursuant to the power to make laws concerning immigration and instead became legislation enacted pursuant to the power to make laws in relation to aliens.  This is suggested by s 3 which deals with the title of the Act.  Thereafter, the Migration Act purported to regulate entry by non-citizens rather than immigrants.  It no longer restricted entry by a citizen.  For present purposes, however, it is clear that immediately prior to Independence Day, the applicant’s status as an Australian citizen did not entitle her to permanent residence in Australia.

17                  The applicant alternatively claims entitlement to residence in Australia upon the basis that her father was an Australian citizen who was entitled to such residence.  His entitlement may be assumed for present purposes.  She puts this submission in a number of different ways.  Firstly, she submits that prior to Independence Day she was entitled to an Australian passport and that her father could have applied for a passport which included her.  These propositions may or may not be correct, but I do not understand them to lead to the conclusion that the applicant was therefore entitled to Australian residence.  As far as I can see, a passport is an identity document issued to facilitate overseas travel.

18                  It is then said that the applicant’s father was “the responsible parent”.  This expression appears in s 23 of the Australian Citizenship Act which deals with the children of persons who lose, or are deprived of Australian citizenship.  It is submitted that:

Section 23(3) specifically provides that if a child has a responsible parent who is an Australian citizen such child will not lose his or her citizenship and rights if one of the responsible parents kept their citizenship.

19                  The section deals with two situations.  Where a responsible parent ceases to be an Australian citizen pursuant to ss 17, 18 or 19, subs 23(1) deprives a child of that parent of his or her citizenship if, under the law of a foreign country, the child is a national of that country.  Subsection 23(2) deals with the situation in which the Minister elects to deprive an Australian citizen of his citizenship.  Neither provision is of any relevance for present purposes.

20                  It is also submitted that the decision of the High Court in Air Caledonie International v The Commonwealth (1988) 165 CLR 462 establishes the proposition that an Australian citizen has a right of permanent residence.  At the present time an Australian citizen has such a right because the Migration Act now operates to restrict entry to, and presence within Australia only in the case of non-citizens.  However that does not mean that the Parliament could not again limit the right of entry pursuant to the immigration power as it did between 1958 and 1984.  An Australian citizen who has already become a permanent member of the Australian community is not an immigrant.  Such a person’s right of entry cannot be restricted.  That does not exclude the possibility that an Australian citizen who has never been a member of the Australian community may be an immigrant for the purposes of laws made pursuant to the immigration power.  In any event, the applicant is not an Australian citizen.  She was expressly deprived of that status by the regulations.  There has been no challenge to their validity.  In any event, as at Independence Day, her citizenship did not entitle her to residence.

21                  The applicant also submits that “Although parliament can refuse entry to non-citizens or aliens the same cannot be said to be true for Australian citizens.”  It is said that the decision in Pochi v Macphee (1982) 151 CLR 101 at 111, is authority for that proposition. Gibbs CJ was there considering the power to deport aliens.  It had been argued that this could occur only for so long as the alien was an immigrant because the statutory power to deport pursuant to the Migration Act was derived from that power.  His Honour considered that the relevant section of the Migration Act was authorized by the power to legislate with respect to aliens and that a person remains an alien until he or she is naturalized, even if he or she has previously ceased to be an immigrant.  The case offers no support for the applicant’s submission.  The applicant also sought to rely upon a passage in the judgment of McHugh J in Chu Kheng Lim v Minister for Immigration, Local Government and Ethnic Affairs (1992) 176 CLR 1 at 64, where his Honour said:

Subject to any relevant constitutional prohibitions, Parliament can make laws imposing burdens, obligations and disqualifications on aliens which could not be imposed on members of the community who are not aliens. 

22                  As I understand it this is nothing more than an observation that laws made in reliance upon the power to legislate concerning aliens cannot be used to impose obligations on non-aliens (ie citizens).

23                  The applicant also referred to “The Immigration Kit (6^th Edition)”, apparently a document issued by the Immigration Advice and Rights Centre.  It states that:

If someone is a citizen of Australia they have the right to travel in and out of the country without any restriction.  Their presence in Australia is not controlled by the Department of Immigration and so they do not need a visa which gives permission to enter or stay in the country.  This is because the Department of Immigration only has the power to administer rules about “non-citizens” in the Migration Act.

24                  As I have previously observed, this statement reflects the current situation but it has not always been so.  The paragraph should not be taken as describing a constitutional right.  It rather describes the current statutory situation.

25                  The applicant has demonstrated no entitlement to permanent residence in Australia as at Independence Day or at any time thereafter.

Sections 10B and 10C as sources of entitlement to Australian citizenship

26                  Prior to Independence Day the applicant was an Australian citizen by birth by virtue of s 10.  At that time subs 11(1) provided:

A person born outside Australia on or after 26 January, 1949 is an Australian citizen by descent if –

(a)       in the case of a person born in wedlock – at the time of the birth his father or mother was an Australian citizen; or

(b)       in the case of a person born out of wedlock – at the time of the birth his mother –

(i)        was an Australian citizen; or

(ii)       was, or had the status of, a British subject and was ordinarily resident in Australia or New Guinea,

and, in either case, the birth was or is registered at an Australian consulate within five years after its occurrence or within such further period as the Minister allowed or allows.

I have added the emphasis.  The relevance of these words will be demonstrated presently.  Prior to Independence Day, the applicant was not able to take advantage of this provision because she had been born in Australia.  Of course, she did not need its benefit because she was an Australian citizen by birth.  On Independence Day the applicant’s citizenship was terminated by reg 4 of the regulations.  The application of that regulation depended upon the relevant person having become a citizen of Papua New Guinea.  Subsection 65(4) of the PNG Constitution provided that subsection (1) (which conferred citizenship) did not apply to a person who:

is registered as an Australian citizen under section 11 of the Australian Citizenship Act 1948 - 1975 of Australia; … .

27                  Thus a citizen by descent would not have lost his or her Australian citizenship unless he or she had renounced it.  The regulation said nothing about the rights of appropriately qualified persons to apply in the future for registration pursuant to s 11.  Regulation 4 was concerned only with terminating existing citizenship.  It did not expressly amend any provision of the Citizenship Act.  However Schedule 1 to the regulations made substantial amendments to those provisions.  These included amendments to s 5 (the definition section).  The definition of “Australia” was not amended.  As I have said it had previously been amended to delete the express inclusion of Papua which had appeared in the Citizenship Act when it was first enacted in 1948.  The amended definition included within the term “Australia” territories other than trusteeship territories.  Thus the meaning of the term in the Citizenship Act was effectively amended when Papua ceased to be a territory.  Schedule 1 also amended ss 11, 14, 17, 38, 39 and 42.  For present purposes the amendment to s 11 is of some importance.  It was amended to read relevantly as follows:

(1)       A person born outside Australia on or after 26 January, 1949, is an Australian citizen by descent if –

(a)       in the case of a person born in wedlock – at the time of the birth his father or mother was an Australian citizen; or

(b)       in the case of a person born out of wedlock – at the time of the birth his mother –

(i)        was an Australian citizen; or

(ii)       was, or had the status of, a British subject and was ordinarily resident –

(A)       if the person was born before 16 September 1975 in Australia, Papua or New Guinea; or

(B)       if the person was born on or after 16 September 1975 – in Australia.

The emphasized words are to be compared with those in the section in its earlier form (cited in par 26).  The reference to “Australia, Papua or New Guinea” is of particular importance.  Many of the other amendments to the Citizenship Act also appear to have been designed to clarify the distinction between the three entities.  There can be little doubt, in my view, that the purpose was to ensure that for the future, the term “Australia”, where it appears in the Act, would signify Australia, excluding Papua.  Subsection 11(1) is a good example of this.  The amendment to subpar 11(1)(b)(ii) resulted in clear distinctions between Australia, Papua and New Guinea.  It is difficult to see how it can be argued, in the face of that change, that the reference to “Australia” at the beginning of the subsection was to include Australia and Papua for any purpose.

28                  The Citizenship Act does not deal solely with problems posed by persons associated with Papua New Guinea.  It deals with Australian citizenship on a much more general basis and in particular, with the citizenship of people descended from Australian citizens.  There is a clear intention to confer the benefit of citizenship upon the children of Australian citizens.  There was nothing in the legislation as at Independence Day to suggest that such children born in Papua or New Guinea or Papua New Guinea were to be denied that benefit.  In making it clear that, for the future, the term “Australia” in the Citizenship Act did not include Papua, the Citizenship Regulations removed the only bar to that outcome.  I am of the view that if, on or after Independence Day, the applicant satisfied one or other of the qualifications for citizenship by descent specified in s 11, she would have been entitled to registration of her birth for the purposes of that section, subject only to obtaining the necessary extension of time.  As she was born out of wedlock, her entitlement may have depended upon whether her mother was an Australian citizen.  I say “may” because the point has not been argued.  Subsequent legislation reforming the law relating to illegitimate children may have changed the position.

29                  Section 11 was repealed in 1984 and replaced by ss 10A and 10B.  The present section 11 serves a different purpose.  Section 10A, as I have previously mentioned, dealt with adoption and is not presently relevant.  Section 10B, at the time of adoption, provided in part as follows:

(1)       A person born outside Australia (in this sub-section referred to as the “relevant person”) is an Australian citizen if –

(a)       the name of the relevant person is registered for the purposes of this section at an Australian consulate within 18 years after his birth; and

(b)       a person, being a parent of the relevant person at the time of the birth of the relevant person –

(i)        was at that time an Australian citizen who had acquired Australian citizenship otherwise than in the manner referred to in sub-sub-paragraph (ii)(A); or

(ii)       … .

30                  The section was subsequently amended to the form which was cited in par 3, but the amendment is not relevant for present purposes.  Whatever the position was under s 11 prior to its repeal, it seems that pursuant to s 10B, the applicant became entitled to rely upon the citizenship of either parent as a basis for citizenship by descent.  Given the history to which I have referred, there is no reason to conclude that, contrary to the s 5 definition, the term “Australia” in subs 10B(1) includes Papua.  As I have said, the regulations were designed to ensure that after Independence Day, the Citizenship Act was to operate upon the basis that Papua was not part of Australia.

31                  It was clearly the intention, as at Independence Day, that a person born in Papua New Guinea of an Australian parent be entitled to Australian citizenship by registration.  This intention is now found in s 10B.  It also follows that s 10C operates to extend the time within which the applicant may register her birth.  In so far as concerns clause 10C(4)(c)(iii), the applicant could have been registered pursuant to s 10B at any time after its adoption, subject only to the time limit.  She may also have been entitled to registration pursuant to s 11.

32                  I should make one further comment concerning the regulations.  It would not usually be appropriate to take into account subordinate legislation for the purposes of statutory construction.  However these regulations were unusual in that they were adopted pursuant to a power which authorized statutory “modification”.  They have been in place for a long time and, in a sense, they regulate an aspect of relations between Australia and Papua New Guinea.  The current legislation cannot be understood without reference to them.

33                  I should also draw attention to the fact that s 10B distinguishes between a parent who is an Australian citizen by descent and a parent who derives citizenship in some other way.  The matter has proceeded upon the basis that the applicant’s father’s citizenship was not by descent.

34                  At its inception, this matter was an appeal from a decision of the Administrative Appeals Tribunal reviewing a determination that the applicant was not entitled to registration pursuant to s 10C.  It follows from what I have said that I consider that decision to have been incorrect and that the appeal must be allowed.  In the course of argument, the applicant, at the respondent’s invitation, sought a declaration that she was an Australian citizen.  This procedure was intended to permit resolution of her claim to citizenship upon any basis other than pursuant to s 10C.  In view of my decision as to the s 10C claim, no such declaration would be appropriate.  I will hear submissions as to the form of order and as to costs.

Associate:

Dated:              24 December 2001