FEDERAL COURT OF AUSTRALIA

Lee v Minister for Home Affairs [2020] FCA 487

ORDERS

THE COURT ORDERS THAT:

1.    It is declared that the applicant is an “Australian citizen” within the meaning of s 4(1)(b) of the Australian Citizenship Act 2007 (Cth).

2.    The respondent pay the applicant’s costs of the application.

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

REASONS FOR JUDGMENT

RANGIAH J:

1    The applicant has lived in Australia since 1982, when he was seven years of age. The applicant held an Australian passport and believed that, like his parents and younger siblings, he was a citizen of Australia. When attempting to renew his passport in 2016, he was informed by the Department of Home Affairs that he was not an Australian citizen.

2    The applicant seeks a declaration that he is an “Australian citizen” within the meaning of s 4(1)(b) of the Australian Citizenship Act 2007 (Cth).

3    The applicant was born on 20 May 1975 at Port Moresby, in the Territory of Papua. At that time, Papua was an external territory of Australia. By virtue of his birth in Papua, the applicant was an Australian citizen.

4    On 16 September 1975 (Independence Day), the Independent State of Papua New Guinea (PNG) came into existence under the Constitution of the Independent State of Papua New Guinea (the PNG Constitution).

5    The issue in this proceeding is whether the applicant became a PNG citizen under the PNG Constitution, and ceased to be an Australian citizen, on Independence Day.

6    The issue arises because reg 4 of the Papua New Guinea Independence (Australian Citizenship) Regulations 1975 (Cth) (the PNG Independence (Australian Citizenship) Regulations) provided that an Australian citizen who became a citizen of PNG on Independence Day by virtue of the PNG Constitution ceased to be an Australian citizen. The respondent contends that, by operation of reg 4 and s 65(1) of the PNG Constitution, the applicant ceased to be an Australian citizen.

7    Under s 65(1) of the PNG Constitution, a person who was born in the country and had two grandparents who were born in the country is a citizen of PNG. However, s 65(1) does not apply to a person who had a right to permanent residence in Australia (s 65(4)(a)), or was a naturalised Australian citizen (s 65(4)(b)) at Independence Day. The applicant contends that he comes within those exceptions and therefore did not become a citizen of PNG on Independence Day.

8    The applicant argues, in the alternative, that the respondent is estopped from asserting that the applicant ceased to be an Australian citizen.

Background

9    The applicant is of Chinese ethnicity. The applicant’s paternal grandparents were both born in the Territory of New Guinea and became naturalised Australian citizens prior to the applicant’s birth.

10    The applicant’s mother was born in British Hong Kong and was granted Australian citizenship under the Australian Citizenship Act 1948 (Cth) (the Australian Citizenship Act) on 20 December 1973. The applicant’s father was born in the Territory of New Guinea and was granted Australian citizenship on 16 October 1964. Therefore, when the applicant was born, the applicant’s parents were naturalised Australian citizens.

11    The applicant has two younger siblings who were born in PNG after Independence Day. They are Australian citizens by descent.

12    On 31 October 1975, six weeks after Independence Day, the applicant first travelled, with his mother, between PNG and mainland Australia. He travelled again with his mother between PNG and Australia in 1977, 1978 and 1981.

13    In 1982, at the age of seven, the applicant moved to Australia with his family. He went on to complete his primary, secondary and tertiary education in Brisbane. The applicant lives with his wife and child in Brisbane.

14    The applicant was first issued with an Australian passport in 1979. Before that, his name was listed in his mother’s passport. The applicant has since been issued with at least four Australian passports.

15    In 2016, when the applicant attempted to renew his passport, he was informed by the respondent’s Department that he was not in fact an Australian citizen. The applicant deposes that he had never taken any steps to apply for Australian citizenship as he believed that he was already an Australian citizen.

16    The applicant has worked for more than 20 years as an electrical engineer, specialising in rolling stock and railways. Employment within his area of specialisation is only available overseas, but he is unable to obtain work visas without having an Australian passport.

17    The applicant applied to the respondent for evidence of his Australian citizenship, but that was refused by a delegate on 24 September 2018. That applicant’s application for internal review of that decision was rejected on 25 June 2019.

Citizenship arrangements between Papua New Guinea and Australia

18    Before Independence Day (16 September 1975) Papua was an external territory of Australia. Section 10(1) of the Australian Citizenship Act provided that a person born in Australia was a citizen by birth. The definition of “Australia” included territories that were not trust territories. Persons born in Papua prior to Independence Day became Australian citizens at birth: Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex Parte Ame (2005) 222 CLR 439 at [1]; Minister for Immigration and Multicultural and Indigenous Affairs v Walsh (2002) 125 FCR 31 at [2] and [6].

19    Section 65 of the PNG Constitution provides, relevantly:

(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).

20    Australia enacted legislation corresponding with the PNG Constitution. Under s 4 of the Papua New Guinea Independence Act 1975 (Cth), Australia ceased to have any sovereignty, sovereign rights or rights of administration in respect of any part of Papua New Guinea. Section 6 of that Act allowed regulations to be made in relation to matters arising out of, or connected with, the attainment of the independence of Papua New Guinea.

21    Regulation 4 of the PNG Independence (Australian Citizenship) Regulations provided:

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.

22    Regulation 4 was held by the High Court in Ame at [24]–[38] to be valid and effective as a law depriving persons of their Australian citizenship. The effect of s 65 of the PNG Constitution and reg 4 of the PNG Independence (Australian Citizenship) Regulations was described in Walsh at [9]–[12] as follows:

[9]    Plainly, a significant proportion of the population of Papua at the time would have comprised persons who were born in Papua and were thus Australian citizens by birth. The clear intention of s 65 was that such persons would (generally) become PNG citizens. Only those who had some further attachment to Australia (that is, those who had a right to permanent residence, who had become naturalised, or had become registered under s 11) were, like citizens of other countries, not to become PNG citizens automatically.

…

[12]    The effect of reg 4, read with s 65 of the PNG Constitution, was to terminate the Australian citizenship of those born in Papua whose sole claim to Australian citizenship was their place of birth. It preserved the citizenship of those who had a further, or a different, connection with Australia (unless they renounced their citizenship).

23    On Independence Day, many Australian citizens by virtue of their birth in Papua lost their Australian citizenship and became citizens of PNG unless they fell into an exception in s 65(4).

Consideration

24    The Minister concedes that when the applicant was born, he was, pursuant to s 10(1) of the Australian Citizenship Act, an Australian citizen. However, in the Minister’s submission, the operation of Australian and PNG laws at the time meant that on Independence Day the applicant became a PNG citizen and lost his Australian citizenship.

25    The applicant accepts that, for the purposes of s 65(1) of the PNG Constitution, he was “born in the country before Independence Day”, and had “two-grandparents who were born in the country”. However, he contends that s 65(1) did not apply to make him a PNG citizen because he had a right to permanent residence in Australia and therefore fell within s 65(4)(a) of the PNG Constitution, or, alternatively, he was a naturalised citizen and fell within section 65(4)(b).

26    The applicant presented these arguments in reverse order and it is convenient to address them in the order in which they were presented.

Was the applicant a naturalized citizen of Australia?

The parties’ submissions

27    The effect of s 65(4)(b) of the PNG Constitution is that a person would not be a citizen of PNG if they were “a naturalized Australian citizen” as at Independence Day. The applicant contends that he was a naturalised Australian citizen.

28    The applicant argues that he was a naturalised Australian citizen by virtue of his parents’ naturalisation. The applicant points out that the obvious intention of s 65(4)(b) was to exclude naturalised Australian citizens from becoming PNG citizens. The applicant argues that it is highly unlikely that the PNG Constitution intended that infants should have a different citizenship status from their parents. The applicant submits that where s 65(4)(b) refers to a “naturalized Australian citizen” it should be construed as including a reference to the person’s infant children.

29    The applicant supports his construction with reference to legal principles that nations owe particular obligations to child citizens in need of protection. Further, s 6(8) of the Migration Act 1958 (Cth) at the time linked a child’s status to their parent’s status. The applicant submits that a construction that promotes the protection of children should be preferred.

30    The applicant also points to the context in which the PNG Constitution was drafted and, in particular, the Final Report of the Constitutional Planning Committee. The language of the Final Report is said to indicate an intention that “real” citizens of foreign countries would not become PNG citizens.

31    The applicant also submits that the ordinary meaning of “naturalized Australian citizen” can include the child of a naturalised parent. He relies on s 5 of the Nationality and Citizenship Act 1948 (Cth), which defined “naturalized person” as including, relevantly, a “person who under any such law was deemed to be a naturalized British subject by reason of his residence with his father or mother”. The applicant also points to s 15(5) of that Act which allowed children to be included in an application for naturalisation by the responsible guardian or parent.

32    The Minister contends that the applicant was not a naturalised citizen. He submits that the ordinary meaning of “naturalized” refers to a person who, although formerly an alien, becomes a citizen through some procedure established by law. He submits that as the applicant was an Australian citizen at birth, he could not become naturalised. The Minister submits that this ordinary meaning of naturalisation is reflected in ss 67–69 of the PNG Constitution which confirm that the process of naturalisation is one where a non-citizen seeks to become a citizen.

33    The Minister submits that the text and context of s 65(4)(b) of the PNG Constitution indicates that “naturalized” has its ordinary meaning. The Minister submits that the reference to “naturalized Australian citizen” in the provision necessarily refers to a concept under Australian citizenship law and, in that context, refers to a person who has been granted Australian citizenship. The Minister submits further that a child’s citizenship status is not necessarily that of their parents, as the PNG Constitution made express provision for the treatment of minors. The Minister submits that the Final Report of the Constitutional Planning Committee should not be used to replace the plain meaning of the PNG Constitution and does not in any event assist the applicant.

34    The Minister points out that ss 5 and 15 of the Nationality and Citizenship Act were no longer in force at Independence Day. Further, only a child who was not already a citizen could be included on a naturalisation application and, in any event, the applicant was not included on either parent’s application.

Consideration

35    The issue to be determined is whether the applicant was, at Independence Day, “a naturalized Australian citizen” within s 65(4)(b) of the PNG Constitution. If he was, then s 65(1) had no application to him, and he did not become a citizen of PNG, and did not lose his Australian citizenship.

36    In the absence of evidence to the contrary, the law of PNG is presumed to be the same as Australian law: see Neilson v Overseas Projects Corporation of Victoria Ltd (2005) 223 CLR 331 at [125]. Under Australian law, a constitution is generally to be construed in the same manner as a statute: Byrnes v Kendle (2011) 243 CLR 253 at [97]. Applying the ordinary principles of statutory construction, the PNG Constitution must be interpreted according to, “the ordinary and natural meaning of its text, read in the light of its history, with such necessary implications as derive from its structure”: McGinty v The State of Western Australia (1996) 186 CLR 140 at 230. Section 65 of the PNG Constitution must be understood in its context, which includes the historical and social context and the Australian immigration legislation in force at the time: Ame at [18].

37    The starting point is the text of s 65(4)(b) of the PNG Constitution. The ordinary meaning of the word “naturalize” is, “admit (a foreigner) to the citizenship of a country”: The Concise Oxford Dictionary (10th ed). The ordinary meaning of the phrase “naturalized Australian citizen” refers to a foreigner who is admitted to citizenship of Australia. That is consistent with the opinion of Gibbs CJ in Pochi v Macphee (1982) 151 CLR 101 that the acquisition of citizenship by an alien requires a formal act under legislation. The Chief Justice held at 111:

It was well settled at common law that naturalization could only be achieved by Act of Parliament — even action by the Crown under the prerogative could not give an alien the status of a British subject: Blackstone, op. cit., p 374; Chitty, Prerogatives of the Crown, pp. 14–15; Holdsworth, History of English Law, vol. IX, p 76. The common law rules as to alienage were no doubt feudal in origin, but there is nothing antiquated in the notion that a person's nationality is not changed by length of residence or by an intention permanently to remain in a country of which he is not a national. There are strong reasons why the acquisition by an alien of Australian citizenship should be marked by a formal act, and by an acknowledgment of allegiance to the sovereign of Australia. The Australian Citizenship Act validly so provides.

38    Section 67 of the PNG Constitution deals with, “Citizenship by Naturalisation”. Section 67(1) provides for certain persons to apply to be naturalised as a citizen and for the Minister, if satisfied of certain matters, to grant or refuse the application. That is consistent with “naturalized” in s 65(4)(b) referring to a formal act of admission to citizenship under a legislative provision, or, in other words, the grant of citizenship. The difference in spelling is of no moment.

39    In Ame, the High Court at [18] and [21] held that the context in which s 65 must be interpreted includes the immigration law of Australia as it stood in 1975. Since s 65(4)(b) refers to “a naturalized Australian citizen”, and since naturalisation can only be achieved under an Act, the context must also include the legislation dealing with Australian citizenship in force at the time, namely the Australian Citizenship Act.

40    The Australian Citizenship Act provided that a person could be an Australian citizen by birth, by adoption, by descent or by grant: see Walsh at [2]. Division 2 (ss 12–15) applied to the granting of Australian citizenship. Section 14 allowed the Minister to grant a certificate of Australian citizenship to a person who made an application and satisfied certain criteria. In my opinion, citizenship by grant was the only method of acquiring citizenship that conforms to the ordinary meaning of “naturalized”.

41    It is clear that the applicant did not acquire Australian citizenship by grant. Firstly, he was not eligible for a grant of citizenship since s 12(1) of the Australian Citizenship Act provided that Division 2 did not apply to a person who was an Australian citizen, whereas the applicant was an Australian citizen by birth. Secondly, s 14(8) provided that, upon application, the Minister could grant a certificate of Australian citizenship to a person who had not attained the age of 21, but no such application was made on behalf of the applicant. Thirdly, under s 14(9), upon application, the Minister could include in a certificate of Australian citizenship of a parent, either at the time of the grant or by later amending the certificate, a child under 16 years of age, but no such application was made on behalf of the applicant. Accordingly, the applicant was not “a naturalized Australian citizen” within the ordinary meaning of that word.

42    The applicant submits that where s 65(4)(b) of the PNG Constitution refers to a “naturalized Australian citizen”, it should be construed as including a reference to the person’s infant children. It may be noted that such an argument was rejected in relation to s 65(4)(a) in Walsh at [27].

43    The applicant submits that his construction is consistent with the ordinary meaning of the provision, relying on provisions of the Nationality and Citizenship Act, which was renamed the Citizenship Act in 1969, and subsequently the Australian Citizenship Act in 1973. Section 5 defined “naturalized person” as including, relevantly, a “person who under any such law was deemed to be a naturalized British subject by reason of his residence with his father or mother”. Section 15(5) allowed, on application, children to be included in a parent’s certificate of naturalisation. I do not consider ss 5 and 15 of the Nationality and Citizenship Act to be relevant as those provisions had been repealed, and were therefore not in force at Independence Day. Further, only a child who was not already a citizen could be included in a naturalisation application and, in any event, no application was made for the inclusion of the applicant in either parent’s certificate of naturalisation.

44    The applicant’s construction of s 65(4)(b) of the PNG Constitution as including a reference to the infant children of a naturalised Australian citizen does not accord with a natural reading of the provision. However, I accept that there are some contextual matters that may provide support for such a construction.

45    In particular, it seems unlikely that the purpose of s 65(4)(b) was that the infant children of naturalised Australian citizens would become PNG citizens even though their parents would not. The preamble to the PNG Constitution calls for, “the family unit to be recognized as the fundamental basis of our society”. That seems inconsistent with dividing some families such that while the parents remained Australian citizens, their infant children would not and would instead become PNG citizens.

46    In Ame, the High Court observed at [18] that part of the historical and social context of s 65 of the PNG Constitution is described in the Final Report of the Constitutional Planning Committee. The applicant relied on the Final Report’s reference to a person being a citizen of PNG if, “he or she is not a ‘real citizen of a foreign country’”, and to persons who were Australian citizens only by virtue of their birth in Papua as “holding no real foreign citizenship”. The applicant submits that these passages support his construction of s 65(4)(b) as encompassing an infant child of a naturalised Australian citizen. Further, the applicant relies upon passages from the Final Report which indicate that only indigenous persons would automatically become citizens of PNG.

47    I do not accept that these passages support the applicant’s construction. They concerned the Committee’s recommendation of an earlier version of s 65(1), which provided that a person would be a citizen of PNG if he or she was “not a ‘real’ citizen of a foreign country” and had “at least two indigenous grandparents”. That version of s 65(1) was not adopted. The Committee’s comments are not relevant to the construction of the version of s 65 that was adopted.

48    There are contextual considerations which tell against the applicant’s construction of s 65(4)(b) as encompassing infant children of naturalised Australian citizens.

49    Section 64 of the PNG Constitution deals with dual citizenship. Except in the case of persons under the age of 19 who had “real foreign citizenship”, dual citizenship was prohibited. Such persons had to elect whether to renounce their foreign citizenship before reaching that age and, if they did not so elect, ceased to be citizens of PNG. The relevance of s 64 is that it contemplated that infants could have a different citizenship status to their parents.

50    Further, as has been discussed, under the Australian Citizenship Act, an infant child did not automatically obtain Australian citizenship when their parent obtained a grant of Australian citizenship. Rather, it was necessary for an application to be made for either the infant to be granted a certificate of citizenship (s 14(8)), or to be included in a parent’s certificate (s 14(9)). In that context, it seems unlikely that s 65(4)(b) of the PNG Constitution intended that a “naturalized Australian citizen” would automatically encompass an infant child of a naturalised Australian citizen.

51    In my opinion, the contextual matters relied upon by the applicant do not displace the ordinary meaning of the expression “naturalized Australian citizen” in s 65(4)(b) of the PNG Constitution. The ordinary meaning of that expression refers to a person granted a certificate of citizenship under the Australian Citizenship Act. It extends to an infant granted citizenship by inclusion in a parent’s certificate of citizenship. That meaning does not otherwise encompass the infant child of a naturalised Australian citizen.

52    As the applicant was neither granted a certificate of citizenship, nor included in his parents’ certificates of citizenship, he was not a naturalised Australian citizen. Therefore, s 65(4)(b) of the PNG Constitution did not apply to the applicant.

Did the applicant have a right to permanent residence in Australia?

The parties’ submissions

53    The applicant submits, in the alternative, that he had, within s 65(4)(a) of the PNG Constitution, “a right…to permanent residence in Australia”, and, accordingly, did not become a PNG citizen at Independence Day.

54    The applicant concedes, having regard to Ame at [1] and Walsh at [19]–[21], that the mere fact that he acquired Australian citizenship because he was born in Papua did not, of itself, grant him a right to permanent residence in Australia.

55    In Walsh, the Full Court held at [21] that Ms Walsh, despite being an Australian citizen by reason of her birth in Papua, did not have a right to permanent residence in Australia because she was an “immigrant” within the meaning of the expression in the Migration Act. While accepting that Walsh is binding upon a single judge, the applicant formally submits that it was wrongly decided and that an infant child of a naturalised Australian citizen could not be regarded as an “immigrant” for the purposes of the Migration Act.

56    The applicant submits that his circumstances are distinguishable from those in Walsh. He argues that he had been absorbed into the Australian community by reason of his mother’s naturalisation and therefore was not an “immigrant”.

57    The applicant submits that when his mother became a naturalised Australian citizen in 1973, she gained a right to permanently reside in Australia, that being a privilege of citizenship. The applicant contends that s 6(1) of the Migration Act did not defeat his mother’s right to enter and remain in Australia. Section 6(1) provides that, “An immigrant who, not being the holder of an entry permit that is in force, enters Australia thereupon becomes a prohibited immigrant”. The applicant contends that his mother was not an “immigrant”, having been absorbed into the Australian community both through naturalisation and her connection to mainland Australia. Further, even if the applicant’s mother was an “immigrant” she was not a “prohibited immigrant” as she had an entry permit, constituted by her Australian passport. The applicant submits that the fact that she had an entry permit is to be inferred from the fact that she was able to move freely into Australia.

58    The applicant submits that at Independence Day, he was not an “immigrant”, as his status was determined by his mother’s status. This is so because at that date he was about four months old and unable to establish any independent residence or sense of community.

59    Further, the applicant submits that there is evidence that, in his own right, he was not an “immigrant”. His name was recorded in his mother’s Australian passport, and could have been included from the time of his birth. He was permitted to freely enter Australia between 1975 and 1982. He was living in Australia when he was born, since Papua was part of Australia for the purposes of the Australian Citizenship Act. He argues that it was always his mother’s intention that the family would live in mainland Australia.

60    The applicant also submits that even if he was an “immigrant”, he nevertheless had permission to enter Australia at Independence Day. That was because his name was recorded in his mother’s passport and the effect of s 6(8) of the Migration Act was that the applicant was, “deemed to be included in any entry permit granted to that parent”.

61    The respondent submits that a grant of citizenship did not confer an unqualified right to enter and remain in Australia, that right being qualified by s 6(1) the Migration Act.

62    The respondent submits that both the applicant and his mother would have been “immigrants” under the Migration Act had they sought to enter mainland Australia at Independence Day. The respondent argues that the evidence does not establish that their permanent home was in mainland Australia at that time. In particular, the applicant’s mother had only visited mainland Australia twice before Independence Day, for periods of three days and two weeks, and prior to moving to Brisbane in 1982, completed her Incoming and Outgoing Passenger Cards on the basis that she was a resident of PNG.

63    The respondent submits that neither the immigration status of the applicant’s mother, nor the fact that the applicant travelled on her passport, was determinative of the applicant’s status.

64     The respondent argues that the applicant would have been an immigrant at Independence Day as he was born, and had lived the whole of his whole life, in Papua.

Consideration

65    The issue is whether, within s 65(4)(a) of the PNG Constitution, the applicant had “a right…to permanent residence in Australia” at Independence Day. If he did, s 65(1) did not apply to him and he did not become a PNG citizen and, accordingly, did not cease to have Australian citizenship.

66    In Ame at [22] and Walsh at [15] it was held that s 65(4)(a) refers to a right of permanent residence in mainland Australia, not an Australian territory.

67    In Walsh, the Full Court held at [16] that whether a person had a right to permanent residence in Australia is to be determined by reference to the Migration Act as it stood at Independence Day. Section 6(1) of the Migration Act provided that:

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

68    An “entry permit” was defined to mean an entry permit issued under s 6 of the Migration Act. An entry permit could be temporary or permanent. Section 18 provided that a prohibited immigrant was liable to deportation.

69    Critically, “Australia” was not defined under the Migration Act, and took its meaning from s 17(a) of the Acts Interpretation Act 1901 (Cth), which specifically excluded external territories. In Walsh, the Full Court held at [19] that at Independence Day, the regulation of entry into Australia was not based on citizenship, but on whether a person was an “immigrant”. That was confirmed in Ame, where the High Court held at [23] that the right to permanent residence referred to in s 65(4)(a) of the PNG Constitution was a right a small number of Papuans had received by grant, not a right which all Papuans had by virtue of their birth in Papua.

70    The term “immigrant” was defined in s 5(1) of the Migration Act to include:

…a person intending to enter, or who has entered Australia for a temporary stay only, where he would be an immigrant if he intended to enter, or had entered, Australia for the purpose of staying permanently.

71    In Walsh, the Full Court observed at [19] that this definition assumed an underlying concept of an “immigrant” as a person whose home was outside Australia and who entered or was seeking to enter Australia. The Full Court continued at [19]:

Possession of Australian citizenship may be an important factor in determining whether a person has become absorbed in the Australian community, and thus outside the immigration power, but it may not be decisive. An Australian national may, in some circumstances, enter Australia as an immigrant and regulation of such entry is within the constitutional competence of the Commonwealth Parliament.

(Citation omitted).

72    In Walsh, the respondent’s father was a permanent Australian resident and the respondent was an Australian citizen by virtue of her birth in Papua. The respondent was five years old at Independence Day and had lived all her life in Papua. The Full Court held that had she sought to enter Australia at Independence Day, she would have been an “immigrant” and would have required an entry permit. Therefore, she did not have a right to permanent residence in Australia by virtue of her Australian citizenship.

73    In Walsh, the Full Court cited Potter v Minahan (1908) 7 CLR 277. In that case, the High Court considered whether the respondent, who had left Australia for China at the age of five and returned 26 years later, was an immigrant. Justice Barton considered it relevant to ask, “Where is his home?”. His Honour answered the question by concluding that the respondent had not made China his home and his return to Australia was the fulfilment of his desire and intention. Justice O’Connor considered that “immigrant”, in its ordinary meaning, implies leaving an old home in one country to settle in a new home in another country, with a more or less defined intention of staying there permanently or for a considerable time. Justice Issacs held at 308–309:

The ultimate fact to be reached as a test whether a given person is an immigrant or not is whether he is or is not at that time a constituent part of the community known as the Australian people.

Nationality and domicil are not the tests; they are evidentiary facts of more or less weight in the circumstances, but they are not the ultimate or decisive considerations.

…

There is not, in my opinion, any proper test but this practical one, viz., whether the whole of the facts show that at the moment of entry the person desiring to be admitted is fairly to be considered as one of the people of the Commonwealth, and whether, notwithstanding any personal absence from Australia, he can justly and in substance claim to regard this country as a place of habitation or general residence which he had never abandoned.

74    In Donohoe v Wong Sau (1925) 36 CLR 404 at 408, Issacs J confirmed:

I regard the test as being whether the person is a constituent part of the Australian community. If that question is answered in the affirmative, this is that person's real home in the relevant sense; if it is answered in the negative, it is not his real home in the relevant sense whatever it may be in the sense of domicil.

(Emphasis in the original).

75    In R v Macfarlane; Ex Parte O'Flanagan (1923) 32 CLR 518 at 580, Starke J held:

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, with the observation of my brother Issacs in Potter’s Case, and am of the 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.

(Citations omitted).

76    The critical question is whether the applicant would or would not have been an “immigrant” within s 6(1) of the Migration Act had he sought to enter mainland Australia at Independence Day. The test has been described in various ways in the cases I have cited, such as whether the person was a constituent part of the Australian community, whether the person was absorbed into the Australian community and whether the person’s real home was Australia. In my opinion, the concepts underlying these descriptions include whether the person regards Australia as their home and whether the Australian community would regard Australia as being the person’s home. It is necessary to have regard to all the relevant circumstances, including the person’s citizenship, place of birth, domicile and intentions. The question is factual and the test is a practical one.

77    Like the respondent in Walsh, the applicant had never been to mainland Australia and had lived his whole life in Papua before Independence Day. The applicant argues, however, that these matters are not decisive. The applicant submits, firstly, that his mother was not an “immigrant” and her status should be attributed to him; secondly, he was not an “immigrant” as he was a part of the Australian community in his own right; and thirdly, even if they were “immigrants”, his mother had a passport (in which he was named), which was an entry permit giving them the right to reside permanently in Australia.

78    It is convenient to begin with the submission that the applicant’s mother’s passport was an entry permit for the purposes of s 6(1) of the Migration Act. The applicant’s mother became an Australian citizen on 20 December 1973. She was issued with an Australian passport on 7 May 1974, pursuant to s 7(1) of the Passports Act 1938 (Cth). She used the passport to travel to the Australian mainland on 5 July 1974 and 31 October 1975. The applicant’s name was included in the passport by the time they travelled together on 31 October 1975. That passport is not in evidence, having been surrendered in the 1970s when she obtained a new passport.

79    In Minister for Immigration and Ethnic Affairs v Petrovski (1997) 73 FCR 303 at 307, Burchett J described the purposes of a passport as follows:

At common law, the issue of a passport is an exercise of the royal prerogative by which the protection of the Crown is extended to the citizen who travels abroad: Halsbury’s Laws of England (4th ed), Vol 18, par 1412. Lord Alverstone CJ described a passport in R v Brailsford [1905] 2 KB 730 at 745 as “a document issued in the name of the Sovereign on the responsibility of a Minister of the Crown to a named individual, intended to be presented to the Governments of foreign nations and to be used for that individual’s protection as a British subject in foreign countries”. In Australia, the issue of passports is regulated by the Passports Act, but their nature remains unchanged.

80    This description is consistent with the notation on Australian passports that:

The Governor-General of the Commonwealth of Australia, being the representative in Australia of Her Majesty Queen Elizabeth the Second, requests all those whom it may concern to allow the bearer to pass freely without let or hindrance and to afford him or her every assistance and protection of which he or she may stand in need.

81    As an Australian passport is issued to a named individual, it identifies that person as a citizen of Australia. Such identification is important, not only for the purposes of travel to foreign countries, but to prove that the person is an Australian citizen when re-entering Australia. The Australian passport issued to the applicant’s mother in 1974 was issued for her identification and protection as an Australian citizen.

82    I do not accept that the applicant’s mother’s passport was an “entry permit” under s 6(1) of the Migration Act. The Migration Act distinguished between a passport and an entry permit. A “passport” was defined in s 5(1) of that Act to include, “a document of identity issued from official sources, whether in or outside Australia, and having the characteristics of a passport”. That definition was evidently intended to capture passports issued under s 7(1) of the Passports Act and “other documents of identity” issued under regulations made under s 12 of that Act. On the other hand, an “entry permit” was defined to mean an entry permit issued under s 6 of the Migration Act. Section 6(7) deemed a married woman who entered Australia in the company of her husband and “whose name is included in the passport of…her husband…to be included in any entry permit granted to her husband”. Section 6(8) operated in a similar way in respect of a child under 16 years of age (more will be said about this provision later in these reasons). These provisions indicate that a passport and an entry permit were distinct documents.

83    Section 6(3) of the Migration Act provided that an “entry permit shall be in a form approved by the Minister and shall be expressed to permit the person to whom it is granted to enter Australia or to remain in Australia or both”. The Court was not provided with the approved form. The applicant’s mother formerly held a British passport and, prior to her arrival in Australia on 8 May 1973, her passport was stamped with the words “Endorsement for Australia” and “Subject to issue on arrival of an entry permit” under the heading “Visas”. Because most immigrants would not be Australian citizens, it is evident that the approved form of an entry permit could not have been an Australian passport.

84    An Australian passport demonstrated that the holder was a citizen of Australia and, in most cases, it seems likely that would have satisfied an immigration officer that the holder was not an “immigrant” who required an entry permit. However, that would not invariably be the case. That is at least so because “Australian citizen” was defined in s 5(1) of the Passports Act to mean an Australian citizen within the meaning of the Australian Citizenship Act, so that it seems an Australian passport was capable of being issued to persons who were citizens by virtue of birth in an Australian territory that was not a trust territory (having regard to s 10(1) and the definition of “Australia” in s 5(1) of the Australian Citizenship Act). However, as Walsh demonstrates, such a person could nevertheless be an “immigrant” who required an entry permit for the purposes of s 6(1) of the Migration Act. Therefore, a passport was not an entry permit.

85    The applicant relies upon s 6(8) of the Migration Act, which provided:

A child under the age of sixteen years who enters Australia in the company of, and whose name is included in the passport of, or any other document of identity of, a parent of the child shall be deemed to be included in any entry permit granted to that parent before the entry of that parent and written on that passport or other document of identity, unless the contrary is stated in the entry permit.

86    The applicant submits that it should be inferred that his name was included in his mother’s passport prior to Independence Day. He submits such an inference should be drawn since his mother surrendered her passport when she obtained a new one and it has not been produced by the respondent. However, I consider that it is not appropriate to draw such an inference in circumstances where there is no adequate basis to suppose that the passport, having been surrendered around 40 years ago, is still in existence. The applicant’s mother does not depose that the applicant was included in her passport before Independence Day, and it seems just as probable that he was included after Independence Day, since they did not travel to Australia until 31 October 1975. In any event, s 6(8) does not assist the applicant. It is inapplicable because no entry permit was granted to his mother.

87    I therefore reject the applicant’s submission that even if he and his mother were “immigrants”, his mother’s passport, in which he was named, was an entry permit giving them a right to reside permanently in Australia

88    I will turn to the applicant’s submission that his mother was not an “immigrant” and that her status must be attributed to him.

89    The applicant argues that his mother was not an “immigrant” because she was a naturalised citizen of Australia, she held an Australian passport and she had an intention to live permanently in Australia.

90    In Walsh at [19], the Full Court held that possession of Australian citizenship may be an important factor, but is not decisive of whether a person is an “immigrant”. In this case, the applicant’s mother became a citizen by the grant of a certificate of citizenship. In my opinion, the fact that a decision was actively made by the Minister (or a delegate) to grant citizenship to the applicant’s mother is an indicator of her acceptance into the Australian community. That may be contrasted with acquisition of citizenship merely by virtue of birth in an Australian territory.

91    When entering Australia after she became an Australian citizen, the applicant’s mother’s passport operated as proof of her citizenship. While the respondent has produced evidence of each of the applicant’s mother’s entries into mainland Australia, he has not produced evidence that any entry permits, whether temporary or permanent, were issued to her after she became an Australian citizen. In her oral evidence, the applicant’s mother agreed with the proposition put to her that when she travelled to Australia after her initial entry on a British passport, she did not get a permit or visa. I accept that no entry permits were issued to the applicant’s mother after she became an Australian citizen and obtained an Australian passport. I infer that was so because she was not regarded by immigration officials as an “immigrant” who required an entry permit.

92    The applicant’s mother gave evidence that, despite living in Papua, she intended to make Australia the permanent home of her family. She deposed that she was planning to return to Australia “all that time”, which I understand to be throughout the time she lived in Papua and PNG. She intended that her family would move to Australia once her husband had ceased his work there. She made trips to Australia looking for investment properties and a home. They purchased a house in Brisbane in 1975 or 1976 and moved there permanently in 1982. The applicant’s mother becoming an Australian citizen in 1973 is consistent with an intention to move permanently to Australia, his father already having become an Australian citizen in 1964.

93    It is apparent, as the respondent submits, that until 1982 the applicant’s mother had never resided in mainland Australia, although she made a number of visits, each for up to a month. At Independence Day, she had only spent 17 days in mainland Australia.

94    The respondent’s counsel pointed out in cross-examination that in an Outgoing Passenger Card signed by the applicant’s mother on 18 July 1974, she completed a section headed “Visitor or temporary entrant leaving”, and indicated that her “Country of residence” was “PNG”. She explained that was because she was living in PNG at that time. The answer given was true, and was not inconsistent with an intention to move to the Australian mainland in the future. I accept that at Independence Day, it was the intention of the applicant’s mother that her family would eventually live permanently in Australia.

95    Having regard to the fact that the applicant’s mother had obtained a grant of Australian citizenship, that she was accepted by Australian immigration officials as someone who was not an immigrant and that she intended to remain in PNG only temporarily and to live in Australia permanently, I find that at Independence Day she was to be regarded as part of the Australian community and that Australia was her real home.

96    Therefore, the applicant’s mother was not an “immigrant”. At Independence Day, she was entitled to reside permanently in Australia.

97    The next issue is whether the applicant’s mother’s status as a person who was not an immigrant must be attributed to him. In Walsh, the Full Court held at [27] that the fact that the respondent may have been permitted to enter Australia if she had been included on her father’s passport did not mean that she had a right of permanent residence in Australia. At [25], the Full Court rejected a submission that the respondent’s rights were correspondent with her father’s rights. It is not open to a single judge to reconsider that ruling on the basis of different arguments run in this case. In any event, it seems entirely possible (where, for example, there is a split family) that the real home of a parent may be one country, while that of their child may be another.

98    However, I consider that the applicant’s mother’s status is relevant to his next argument that, in his own right, he was not an “immigrant” at Independence Day. The applicant was an Australian citizen by birth, although that was neutral in determining whether his home was Papua or mainland Australia. He was born in Papua and had lived his whole life there at Independence Day. These factors tend to support the respondent’s argument that the applicant would have been regarded as an immigrant had he sought to enter mainland Australia at Independence Day. However, the fact that he had lived his whole life in PNG cannot be given the same weight it was given in Walsh, as the applicant was only four months old at Independence Day.

99    In Potter v Minahan, the respondent’s desire and intention to return permanently to Australia was important. In this case, where the applicant was only four months old at Independence Day, he was incapable of making any decision, or forming any intention, as to where he would live. Just as the applicant was bound to his mother’s domicile, he was bound to her desire and intention as to their family’s future domicile. I have found that the applicant’s mother intended that her family would live permanently in Australia. The test for who is an immigrant is a practical one. To fail to regard the mother’s desire and intention as affecting the question of which country was the applicant’s real home would be quite artificial. I note that in Walsh, in contrast, there does not seem to have been any evidence about the intention of the respondent’s parents as to where the respondent would permanently reside.

100    The applicant’s mother deposed that she made enquiries at the Australian High Commission at Port Moresby in 1977 and at the Department of Immigration in Brisbane in 1983 about whether anything more was needed to register him as an Australian citizen, but was told that it was not necessary. The Australian officials apparently regarded the applicant as an Australian, rather than a PNG, citizen. That provides some indication that at those times he was accepted as part of the Australian community. There is no reason to suppose that a different view would have been taken at Independence Day.

101    The applicant was included in his mother’s passport when they travelled to Australia on 31 October 1975. The applicant was issued with his first Australian passport in 1979. There is some evidence (in the reasons of the Departmental officers who made the decisions in 2018 and 2019 that the applicant would not be provided with proof of citizenship) that entry permits issued under the Migration Act were stamped in passports. The applicant travelled on his 1979 passport between PNG and Australia in 1981 and again in 1982. There are no stamps indicating that any Australian entry permit was issued to the applicant, but there are PNG entry permits stamped in the applicant’s passport. The respondent admits that the applicant did not obtain any entry permits when he entered Australia. I find that the applicant was accepted by Australian immigration officials to be a person entitled to enter Australia without an entry permit. That provides some evidence that the applicant was accepted as part of the Australian community. There is no reason to doubt that Australian immigration officials would have taken the same view if he had sought to enter mainland Australia at Independence Day.

102    Conversely, PNG immigration officials regarded the applicant as a person who required an entry permit to enter PNG, suggesting that they did not regard him as a citizen of PNG. That is consistent with a letter from the PNG Immigration & Citizenship Service Authority dated 15 October 2017 indicating that the applicant’s name is not recorded in the PNG citizenship database and that he is not a citizen of PNG.

103    There were only two countries which might have been considered the applicant’s real home at Independence Day—PNG or Australia. In my opinion, the weight of the evidence supports Australia as being the applicant’s real home. That evidence includes that Australian officials regarded the applicant as an Australian citizen and not as an “immigrant” when he entered Australia, and that PNG officials did not regard the applicant as being a PNG citizen. It is important that the applicant’s mother intended that PNG would only be their temporary abode, and that Australia would be their permanent home in the longer term. While there are differences between the circumstances of the applicant’s mother and the applicant, I consider that if the applicant had sought to enter Australia with his mother at Independence Day, he would not have been an immigrant.

104    Therefore, at Independence Day, the applicant had a right to reside permanently in Australia within s 65(4)(a) of the PNG Constitution. Accordingly, s 65(1) did not apply to make him a citizen of PNG.

Whether the Minister is estopped from asserting that the applicant lost his citizenship

105    The applicant argues that the Minister is estopped from asserting that the applicant ceased to be an Australian citizen on 16 September 1975. In view of the conclusion I have reached that the applicant did not lose his citizenship, it is unnecessary to address that argument.

Summary

106    I have found that at Independence Day, the applicant fell within s 65(4)(a) of the PNG Constitution as a person who had a right to permanent residence in Australia and that, therefore, s 65(1) did not apply to make him a citizen of PNG. Accordingly, reg 4 of the PNG Independence (Australian Citizenship) Regulations did not deprive him of Australian citizenship. The applicant remained an Australian citizen within the meaning of the Australian Citizenship Act 1948 (Cth).

107    The definition of “Australian citizen” in s 4(1)(b) of the Australian Citizenship Act 2007 (Cth) includes a person who was an Australian citizen under the Australian Citizenship Act 1948 (Cth) immediately before the commencement day and who had not ceased to be an Australian citizen under that Act. The respondent did not plead or submit that the applicant would not fall within that definition if it were determined that reg 4 of the PNG Independence (Australian Citizenship) Regulations did not apply to him. I find that the applicant is an “Australian citizen”.

108    I will make a declaration that the applicant is an “Australian citizen” within the meaning of s 4(1)(b) of the Australian Citizenship Act 2007 (Cth).

109    I will order that the respondent pay the applicant’s costs of the application.

Associate:    

Dated:    17 April 2020