FEDERAL COURT OF AUSTRALIA

SZRTN v Minister for Immigration and Border Protection [2015] FCA 305

THE COURT ORDERS THAT:

1.    The application be dismissed with costs.

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

REASONS FOR JUDGMENT

1    The applicant sues the Minister for Immigration and Border Protection (‘the Minister’) and the Commonwealth for a declaration that he is an Australian citizen unlawfully detained at Villawood Immigration Detention Centre. He also claims that the Minister and the Commonwealth were negligent in their handling of him and his family by detaining him in immigration detention when, at all times, he has been an Australian citizen. He seeks declarations to that effect. He also seeks compensatory damages of $25 million together with a further $35 million by way of punitive damages. When the suit was initially filed the applicant also sought, by way of mandatory interlocutory injunction, orders compelling his release from immigration detention. The issues which would have been raised by that application largely overlap with those which would arise on the final disposition of the proceedings. It was therefore agreed between the parties that the case should be expeditiously tried on a final basis, thereby avoiding the need for two hearings.

2    There is only one issue to be determined and that is whether the applicant is an Australian citizen. On that issue, two affidavits were read: an affidavit of the applicant filed on 12 December 2014 and an affidavit of a senior lawyer within the Minister’s department, Ms Flinders, filed on 6 February 2015. That evidence establishes the following propositions:

(i)    the applicant was born on 25 October 1981 in Samoa;

(ii)    he arrived in Australia with his father on 17 April 1987, then aged 5;

(iii)    within months of his arrival his father abandoned him and he then lived with his uncle and aunt and their children until he was 13;

(iv)    thereafter he lived on the streets; and

(v)    he is currently being detained at Villawood Detention Centre on the basis that he is an unlawful non-citizen, that is, a person who neither holds Australian citizenship nor a visa.

3    The Minister and his various officials are obliged to detain persons who they know or reasonably suspect of being unlawful non-citizens in immigration detention: s 189(1) of the Migration Act 1958 (Cth) (‘the Act’).

4    If the applicant establishes that he is an Australian citizen then, from the moment that the Court so declares, it will be impossible for the Minister or those who assist him to know or reasonably suspect that he is an unlawful non-citizen within the meaning of s 189(1). Consequently, if he succeeds in that regard he is entitled to immediate release. It does not necessarily follow that he will have been unlawfully detained up to that point since the obligation of the Minister and his officials to detain unlawful non-citizens turns on a reasonable suspicion that a person is an unlawful non-citizen rather than an actuality. It is not necessary to explore further whether the Minister might reasonably suspect something to be the case at one time even when that suspicion is subsequently shown to be erroneous.

5    In any event, it is obviously necessary to determine as the central issue whether the applicant is an Australian citizen.

6    The applicant’s argument is that he was abandoned as a child so that s 14 of the Australian Citizenship Act 2007 (Cth) has conferred citizenship upon him. Section 14 provides:

‘14 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.’

7    I do not think s 14 applies to the applicant because it did not apply prior to 1 July 2007 when the Australian Citizenship Act 2007 came into force. Section 4 of the Australian Citizenship Act 2007 defines the concept of an Australian citizen in these terms:

‘4 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.’

8    To complete the picture, s 14 is contained in Div 1 of Pt 2. Divisions 1 and 2 set out a variety of circumstances in which nationality may be acquired. Each of those circumstances involves an event which has a temporal element. Thus under Div 1, citizenship is conferred if a person is born in Australia (s 12), adopted in Australia (s 13), abandoned in Australia (s 14), or lives in a territory which becomes part of Australia (s 15). In terms, the provisions of Div 1 would not be textually apt to apply to events which occurred before 1 July 2007 when the Australian Citizenship Act 2007 commenced.

9    Matters are perhaps not so clear in the case of Div 2 which deals with the acquisition of nationality by application. The central provision of Div 2 is s 16 which provides:

‘16 Application and eligibility for citizenship

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

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

Persons born outside Australia on or after 26 January 1949

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

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

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

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

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

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

Persons born outside Australia or New Guinea before 26 January 1949

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

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

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

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

10    It is possible to read this as having, in some senses, a retrospective operation. It appears to apply to persons born before 1 July 2007. However, it still requires an application to be made and I would interpret s 16 such that it only applies to applications made after that date.

11    For those reasons, I would construe the Australian Citizenship Act 2007 as applicable to events – birth, adoption, territorial incorporation or application – which occur after 1 July 2007. I agree with the reasons of Flick J in Nicky v Minister for Immigration and Border Protection [2015] FCA 174 at [22]-[34] who reached the same conclusion.

12    The applicant, therefore, cannot succeed under either s 14 or, therefore, s 4(1)(a).

13    Can he nevertheless succeed under s 4(1)(b)? I think not. The effect of s 4(2) is to require one to work out whether the applicant was an Australian citizen under the now long repealed Australian Citizenship Act 1948 (Cth) as at the date he was found abandoned.

14    There are two problems with this although neither has any consequence in this case. The first is, as was pointed out on the applicant’s behalf, it is inherent in the nature of children who are found abandoned that they are unlikely to know when this occurred. Thus the instruction in s 4(2) may, in some cases, be impossible to carry into effect. This problem will be at its most acute when the events said to give rise to nationality occurred near a time when the Australian Citizenship Act 1948 was amended.

15    The second is that the legislation, thus understood, fails to have the important legislative qualities of accessibility and transparency. A person wishing to know their status is required to locate the original text of the repealed 1948 statute and then, in the style of an archaeologist, to look up all amendments since then to the time of the event said to give rise to nationality so as to reconstruct the statute as it was at the relevant date. With a person born in 1998 this will involve obtaining amendments for over a half a century. This is a significant burden for a lawyer; it is hard to imagine a lay person navigating it with any success at all. This is not, therefore, a drafting device to be encouraged.

16    In this case, the applicant says he was abandoned by his father within months of his arrival in Australia on 17 April 1987. He says nothing about when he was ‘found’ abandoned, a matter to which I return below. It is useful nevertheless to proceed on the basis that the matter is to be resolved by reference to the Australian Citizenship Act 1948 as it stood between May and August 1987 which is the period during which I conclude the applicant was found abandoned (assuming for the sake of argument that he was ‘found’ abandoned and not just abandoned).

17    The relevant provisions were ss 5(3)(b) and 10(1). Section 10(1), relevantly, provided that a person born in Australia after the commencement of the Australian Citizenship Act 1948 would be an Australian citizen. Section 5(3)(b) provided that for the purposes of that Act:

‘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…’

18    The applicant submits that the respondents have not proven that he was not found abandoned in Australia with the consequence that ‘the contrary’ has not been proved in terms of s 5(3)(b).

19    That argument assumes that ‘the contrary’ qualifies the words ‘found abandoned in Australia’. I accept that the provision is capable of supporting that construction. It is also capable of supporting a construction where ‘the contrary’ refers to the contrary of ‘born in Australia’. The provision is, therefore, ambiguous.

20    The former construction, however, makes no sense. It would result in s 5(3)(b) effectively reading:

‘a person who, when a child, was found abandoned in Australia shall, unless it is shown that he or she was not found abandoned in Australia, be deemed:

(i)     to have been born in Australia…’

21    Such a reading has the consequence that the initial phrase becomes redundant. By definition, a person who is found abandoned in Australia is not a person who has been shown not to have been found abandoned in Australia. Useful comparison may be made with a law which said:

‘A person who drives through a red light shall, unless the contrary be proved, be deemed to be driving in excess of the speed limit.’

22    I would read such a provision as enabling the driver to contest the deemed speeding offence by proving he was not speeding. It would be pointless to read it as allowing the deemed speeding offence to be avoided only if it were shown the red light had not been run.

23    This observation matters because redundant constructions are to be avoided where possible: Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 at 382 [71]. Consequently, the construction of s 5(3)(b) that is to be preferred is that the ‘contrary to be proved’ that is referred to is the contrary of being born in Australia.

24    In this case, the applicant’s evidence is that he was born in Samoa on 25 October 1981. Accordingly, 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 Australian Citizenship Act 1948. Consequently, he does not satisfy s 4(1)(b) of the Australian Citizenship Act 2007 either. The applicant is not an Australian citizen. It follows that his claims for relief must be refused and his application dismissed with costs.

25    There are two further matters that should be noted. First, Flick J reached the same conclusion about the meaning of s 5(3)(b) in Nicky at [45]. Part of the reasoning in Nicky involved the observation that s 5(3)(b) was inserted originally to avoid the possibility of stateless persons. I expect that this is probably correct, with respect, but would reserve my own position on that issue at this stage in light of the fact that the mere fact that a person is born in another country does not necessarily mean that they have the nationality of that country. For example, the effect of s 12(1) of the Australian Citizenship Act 2007 is to deny citizenship to persons born here if neither parent is a citizen or a resident. This may matter because it is not necessarily the case that the construction of s 5(3)(b) which both Flick J and myself prefer therefore avoids the problem of statelessness in every case.

26    Secondly, no issue was raised in this case as to whether the applicant was, in fact, found abandoned within the meaning of s 5(3)(b), as opposed to merely abandoned. The language of ‘found abandoned’ may be directed, particularly if the section’s concern is, indeed, with statelessness, at the situation of a person who is literally found and about whose parentage nothing is known. That is not this case. The identity of the applicant’s parents is revealed on his birth certificate. There is no doubt about who he is or where he comes from. In any event, no issue about this arises in this case or arose in Nicky.

Associate:

Dated:    2 April 2015