FEDERAL COURT OF AUSTRALIA

Nicky v Minister for Immigration and Border Protection [2015] FCA 174

THE COURT ORDERS THAT:

1.    The application for an adjournment is refused.

2.    Leave is granted to amend the Notice of Appeal.

3.    The appeal is dismissed.

4.    The Appellant is to pay the costs of the Respondent.

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

REASONS FOR JUDGMENT

1    At issue in the present appeal is whether a Judge of the Federal Circuit Court erred in concluding that no error had been exposed by a decision declining to grant the now-Appellant evidence of Australian citizenship.

2    On 1 April 2014 the Appellant lodged an application with the Department of Immigration and Border Protection requesting evidence of his claimed Australian citizenship pursuant to s 37 of the Australian Citizenship Act 2007 (Cth) (the “2007 Act”). He claimed to have been “abandoned” by his mother in 2002 and entitled to Australian citizenship. On 14 April 2014 a delegate refused that application. Internal review was sought and a second Ministerial delegate also refused the application.

3    Judicial review was sought in the Federal Circuit Court pursuant to s 5(1) of the Administrative Decisions (Judicial Review) Act 1977 (Cth). That application was dismissed in November 2014: Nicky v Minister for Immigration [2014] FCCA 2569. The Federal Circuit Court Judge relevantly concluded that no error had been exposed in the reasoning of the second delegate insofar as:

    the Appellant was not entitled to rely upon s 14 of the 2007 Act because that Act “did not apply to events occurring before July 2007” ([2014] FCCA 2569 at [29]); and

    the Appellant did not fall within s 5(3)(b) of the Australian Citizenship Act 1948 (Cth) (the “1948 Act”) ([2014] FCCA 2569 at [25]).

The Appellant alleges error in the construction of the 2007 Act and error in the construction of s 5(3)(b) of the 1948 Act. If the Appellant is successful in establishing error in the application of the 2007 Act, it is not necessary to consider any error in the construction of s 5(3)(b).

4    A Notice of Appeal was filed in December 2014. An application to amend the Notice of Appeal was made at the outset of the hearing and was not opposed. Leave was, accordingly, granted to amend.

5    The appeal is to be dismissed. No appellable error is exposed in the conclusions of the Federal Circuit Court Judge.

The factual background

6    The relevant factual background is within a narrow compass.

7    The Appellant was born in Indonesia in September 1985. A birth certificate and passport issued by the Indonesian government confirmed the date and place of his birth. That passport expired in October 2006.

8    The Appellant came to Australia with his mother in November 2001. He was then sixteen years old.

9    In February 2002 the visa held by the Appellant’s mother was cancelled and she was deported from Australia.

10    The Appellant asked his mother to take him back with her to Indonesia. She refused, stating that he would be better off in Australia and that he should seek assistance from his local church. He remained in Australia.

11    He thereafter unsuccessfully applied for a protection visa. His bridging visa expired in July 2003. He has been detained pursuant to s 189 of the Migration Act 1958 (Cth) since January 2014.

12    The Appellant lost contact with his mother until 2010. She has since died.

Australian citizenship – the legislative regimes

13    At common law a person’s nationality or citizenship is determined at birth: Minister for Immigration and Ethnic Affairs v Petrovski (1997) 73 FCR 303 at 314 per O’Loughlin J. The rights conferred upon citizens are of fundamental importance, including the fundamental right to enter and re-enter the country of his citizenship: cf. Air Caledonie v The Commonwealth of Australia (1988) 165 CLR 462 at 469 per Mason CJ, Wilson, Brennan, Deane, Dawson, Toohey and Gaudron JJ.

14    The determination of Australian citizenship – and the right of “aliens” to remain in Australia – has long been regulated by Commonwealth legislation.

15    The principal legislation of relevance to the Appellant’s claim is both the 1948 and 2007 Acts. The 1948 Act was repealed as from 1 July 2007: Australian Citizenship (Transitionals and Consequentials) Act 2007 (Cth), s 3 (Schedule 1, Part 2, item 42).

16    Section 5(3) of the 1948 Act provided in relevant part as follows:

Interpretation

…

(3)    For the purposes of this Act:

…

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

(i) to have been born in Australia;

…

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

This provision was inserted by way of amendment in 1969 by the Citizenship Act 1969 (Cth). It was further amended by the Australian Citizenship Amendment Act 1986 (Cth). The provision is a legislative attempt to implement the United Nations Convention on the Reduction of Statelessness. The Explanatory Memorandum to the Citizenship Bill 1969 thus states in part as follows:

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. The reference in the provision to section 10 of the Act will ensure that such a child cannot be deemed to be of a class which, although born in Australia, does not, by virtue of section 10, acquire Australian citizenship.

See also: ‘Second Reading Speech: Citizenship Bill 1969’ (House of Representatives, Debates, 17 April 1969).

17    Section 10(1) and (2) of the 1948 Act provided as follows:

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

Subsection (3) assumes no present relevance.

18    A child who was found abandoned in Australia – and who was born after May 1966 and prior to the commencement of the 1986 amending legislation – was “deemed” to have been born in Australia (s 5(3)(b)) and thereafter taken to be an Australian citizen (s 10(1)).

19    Section 4 of the 2007 Act now defines an “Australian citizen” as follows:

Australian citizen

(1)    For the purposes of this Act, Australian citizen means a person who:

(a)    is an Australian citizen under Division 1 or 2 of Part 2; or

(b)    satisfies both of the following:

(i)    the person was an Australian citizen under the Australian Citizenship Act 1948 immediately before the commencement day;

(ii)    the person has not ceased to be an Australian citizen under this Act.

Citizenship under the old Act

(2)    If, under this Act, it is necessary to work out if a person was an Australian citizen at a time before the commencement day, work that out under the Australian Citizenship Act 1948 as in force at that time.

Section 4(2) seems to be inelegantly expressed, but nothing turns on that. Division 1 of Part 2 of the 2007 Act provides for “Automatic acquisition of Australian citizenship” and provides for citizenship by birth (s 12), adoption (s 13), “abandoned children” (s 14) and citizenship by reason of a territory becoming part of Australia (s 15). Division 2 of Part 2 provides for the acquisition of Australian citizenship by application.

20    Section 14 of the 2007 Act provides as follows:

Citizenship for abandoned children

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

21    Section 37(1) of the 2007 Act provides that a “person may make an application to the Minister for evidence of the person’s Australian citizenship”.

The 2007 Act

22    The relevant “commencement date” of the 2007 Act is 1 July 2007.

23    There is limited ambiguity as to whether the Appellant’s citizenship is to be determined by reference to the 1948 Act or the 2007 Act. That ambiguity potentially arises from a comparison of the terms of ss 4(2) and 14 of the 2007 Act.

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

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

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

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

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

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

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

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

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

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

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

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

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

31    No error is thus exposed in the reasoning of the second delegate or the Federal Circuit Court Judge in reaching the same conclusion.

32    The 1948 and 2007 Acts thus represent two different statutory regimes whereby Australian citizenship in respect to “abandoned” children was regulated and is now regulated. Although not necessarily conclusive, it would initially seem to be an odd conclusion that a child who has been found abandoned prior to July 2007 could (for example) be entitled to Australian citizenship pursuant to s 14 of the 2007 Act even though he may have applied and even been rejected pursuant to the terms of the 1948 Act. Although a subsequent Act may indeed confer greater entitlements, or entitlements regulated by more relaxed requirements, the 2007 Act does not evince any intention to do so.

33    The primary argument advanced on behalf of the Appellant in reliance upon the application of s 14 of the 2007 Act is thus rejected.

34    Any “right” of the present Appellant to Australian Citizenship is to be resolved, not by reference to the terms of the 2007 Act, but by reference to s 5(3)(b) of the 1948 Act.

Section 5(3)(b)

35    The Appellant, however, also fails in his argument as to the application of s 5(3)(b) of the 1948 Act.

36    No appellable error is discernible in the conclusion reached by the Federal Circuit Court Judge in respect to the proper construction and application of s 5(3)(b) of the 1948 Act.

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

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

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

Section 14 –v– s 5(3)

40    One of the differences between the former s 5(3) as found in the 1948 Act and the current s 14 of the 2007 Act is that the former s 5(3):

    “deemed” a child who was found abandoned “to have been born in Australia”. It was s 10(1) of the 1948 Act which thereupon operated such as to make that person an Australian citizen.

Section 14, by way of contrast:

    stops short of “deeming” a person who has been found abandoned to be a person who was born in Australia. It is s 12 of the 2007 Act which specifies whether a person has Australian citizenship “by birth”.

Section 10 of the 1948 Act is in materially different terms to the current s 12.

41    The Appellant’s primary reliance upon s 14 can thus (perhaps) be readily understandable. If a person can bring himself within s 14, he is taken by that provision alone to be an Australian citizen – “until the contrary is proved”.

42    But whether there is such a stark contrast in the entitlement to Australian citizenship conferred by the 1948 Act as opposed to the 2007 Act may be queried. Both provisions are subject to the qualification “until the contrary is proved”.

43    If it is s 14 which governs the Appellant’s entitlement, “the contrary is proved” by his birth certificate and passport. The “contrary” which is “proved” is his citizenship by reason of either his birth in Indonesia or by reason of the grant of an Indonesian passport. If it is the 1948 Act which governs his entitlement, again “the contrary is proved” by reference to the same documents.

44    The objective sought to be achieved in both provisions is to determine the citizenship of a child who has been found abandoned in Australia – he either has Australian citizenship or such other citizenship as can be proved.

CONCLUSIONS

45    Section 5(3)(b) of the 1948 Act was a legislative attempt to ensure that children found abandoned in Australia were not “Stateless”. Section 14 of the 2007 Act carries forward that legislative objective. In the absence of clear words to the contrary, there is no self-evident reason why either section should be construed as entitling a child found abandoned in Australia to Australian citizenship in circumstances where the country of birth and nationality of that child are known.

46    Notwithstanding the expiration of the Appellant’s Indonesian passport in 2006, no submission was advanced to either the delegate or the Federal Circuit Court that the Appellant was thereby rendered “Stateless”. A belated application for an adjournment made to this Court to adduce evidence as to the consequences to the Appellant of the expiration of his passport should be refused. There is no reason to believe that the Appellant cannot acquire a further Indonesian passport on application. It is, moreover, far too late for any application to be made to adduce evidence that could readily have been obtained at the time of the proceeding before the Federal Circuit Court.

47    The delegate was correct to conclude that the 1948 Act applied and in further concluding that the now-Appellant did not fall within the provisions of s 5(3)(b) of that Act. No appellable error is discernible in the reasons of the Federal Circuit Court Judge dismissing the challenge to the delegate’s decision.

48    The appeal should be dismissed.

49    There is no reason why the unsuccessful Appellant should not pay the costs of the Respondent Minister.

THE ORDERS OF THE COURT ARE:

1.    The application for an adjournment is refused.

2.    Leave is granted to amend the Notice of Appeal.

3.    The appeal is dismissed.

4.    The Appellant is to pay the costs of the Respondent.

Associate:

Dated:    5 March 2015