Federal Court of Australia

Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v Koka [2020] FCA 1471

ORDERS

THE COURT ORDERS THAT:

1.    The appeal be allowed.

2.    The decision of the Administrative Appeals Tribunal dated 10 December 2019 be set aside.

3.    The matter be remitted to the Administrative Appeals Tribunal for determination according to law.

4.    Subject to paragraph 5, the first respondent pay the applicant’s costs of the appeal, as agreed or assessed.

5.    If either party wishes to seek a different costs order, the party may within seven days of the date of these orders file and serve a written submission (of no more than two pages). In that event, the other party may file and serve a responding written submission (of no more than two pages) within a further seven days, and the issue of costs will be determined on the papers.

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

REASONS FOR JUDGMENT

MOSHINSKY J:

Introduction

1    Section 16(2) of the Australian Citizenship Act 2007 (Cth) provides that a person born outside Australia on or after 26 January 1949 is eligible to become an Australian citizen if (among other things) “a parent of the person was an Australian citizen at the time of the birth”.

2    The first respondent was born in 1982 in Albania. At the time of his birth he did not have a parent who was an Australian citizen. In 1995, when he was 13 years of age, he was adopted under the laws of Albania by Mr Pullumb Koka. Mr Pullumb Koka was an Australian citizen at the time of the adoption and had been an Australian citizen at the time of the first respondent’s birth. The question of law raised by this appeal is whether, in these circumstances, the first respondent is eligible to become an Australian citizen under s 16(2) of the Australian Citizenship Act.

3    The Administrative Appeals Tribunal (the Tribunal) decided that the first respondent was eligible to become an Australian citizen under s 16(2), on the basis that, by virtue of the adoption (in 1995), Mr Pullumb Koka was deemed to have been the parent of the first respondent at the time of his birth (in 1982). Accordingly, the Tribunal reasoned, the first respondent had, at the time of his birth, a parent who was an Australian citizen.

4    For the reasons that follow, I have concluded that the Tribunal erred in its construction of s 16(2). Properly construed, the section requires that the applicant for citizenship had, at the time of their birth, a parent who was an Australian citizen as a matter of fact (as distinct from deeming on the basis of later adoption). Accordingly, the appeal is be allowed, the decision of the Tribunal set aside, and the matter remitted to the Tribunal for determination according to law.

Background facts

5    The background facts may be summarised as follows. This statement of the facts is based on the Tribunal’s reasons.

6    In 1924, Mr Pullumb Koka was born in Albania.

7    In 1955, Mr Pullumb Koka became an Australian citizen by conferral.

8    In 1982, the first respondent was born in Albania.

9    In 1992, Mr Pullumb Koka met the first respondent’s mother in Albania. They were married in 1993.

10    On 17 May 1995, the first respondent was adopted by Mr Pullumb Koka under the laws of Albania. The first respondent was 13 years of age at that time. The first respondent then became known as Bledi Koka, his current name.

11    In 1997, Mr Pullumb Koka passed away.

12    In 2016, the first respondent (who is an Albanian national with Italian citizenship) arrived in Australia on a student visa.

13    On 23 April 2018, the first respondent applied under s 16(1) of the Australian Citizenship Act to become an Australian citizen. Section 16 relevantly 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.

14    On 18 February 2019, a delegate of the Minister for Home Affairs refused the first respondent’s application for citizenship on the basis that at the time of his birth he did not have a parent who was an Australian citizen. That the decision was made by a delegate of the Minister for Home Affairs, as distinct from a delegate of the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs, the applicant to this proceeding, appears from the Tribunal’s reasons at [5]. Neither party suggested that the applicant was not the appropriate party to the proceeding in this Court. I will refer to the applicant as the “Minister”.

15    On 14 March 2019, the first respondent applied to the Tribunal for review of the delegate’s decision. A hearing before the Tribunal took place on 1 November 2019.

The decision of the Tribunal

16    On 10 December 2019, the Tribunal decided to set aside the decision of the delegate of the Minister for Home Affairs and to remit the matter to the Minister (it would seem, the Minister for Home Affairs) for reconsideration in accordance with a direction that the first respondent was “eligible to become an Australian citizen as he had a parent, Mr [Pullumb] Koka, who was an Australian citizen at the time of his birth, pursuant to section 16(2)(a) of the Australian Citizenship Act 2007 (Cth)”.

17    The Tribunal published reasons for its decision, which may be summarised as follows.

18    The Tribunal set out the background facts and then stated, at [8], that the issue was whether Mr Pullumb Koka was a parent of the first respondent at the time of birth in accordance with s 16(2)(a) of the Australian Citizenship Act. The Tribunal then set out the relevant provisions of the legislation. The Tribunal also set out some extracts from the Australian Government’s Citizenship Policy (the Policy).

19    The Tribunal commenced its consideration of the issue by discussing the judgment of the Full Court (Moore, Kenny and Tracey JJ) in H v Minister for Immigration and Citizenship (2010) 188 FCR 393 (H). As the Tribunal noted, the Full Court in that case decided that the word “parent” in s 16(2) was not limited to a biological parent and that a non-biological parent could be a “parent” depending on the circumstances.

20    Although the issue in H was whether the word “parent” in s 16(2) means only a biological parent, in the course of its judgment the Full Court discussed a submission by the Minister in that case that s 16(2) requires that the citizen parent was a parent of the applicant for citizenship “at the time of the [applicant’s] birth”. The wording of s 16(2) leaves open two possibilities. The first is that the words “at the time of birth” qualify both the status of being a parent and the parent’s citizenship. The second is that the words “at the time of birth” qualify only the parent’s citizenship. The relevant passage from the Full Court’s judgment in H (which was set out in the Tribunal’s reasons) is as follows:

67.    Turning from these statutory definitions to the precise words of s 16(2), the Minister maintained that s 16(2)(a) requires that the citizen parent is a parent of the applicant “at the time of the [applicant’s] birth”. In other words, the Minister argued that, for purposes of s 16(2)(a), parenthood must be established as at the time of the birth. That is, on this construction of s 16(1)(a) [sic], “at the time of birth” qualifies both the status of being a parent and the parent’s citizenship. This was said to be the natural effect of s 16(2)(a). If this were the correct construction, then, so the Minister argued, his argument as to the meaning of “parent” in s 16(1)(a) was strengthened.

68.    As it happens, we accept the Minister’s submission as to timing, although we reject the latter submission as to its consequential support for his case. Whilst commonly one may assume that a person accepting the status of a parent at the time of a birth is in fact a biological parent, human experience is that this is not always so. Numerous cases in the history of the law illustrate that the acceptance of parenthood at birth may be made in the absence of any relevant biological relationship: see, for example, Magill v Magill (2006) 226 CLR 551. Indeed, the appeal in McMullen provides a further example. Accepting that the Minister is correct on the timing issue, this does not favour the limitation of parent to biological parent only. Even on this construction s 16(2)(a) does not in terms preclude attributing parent status to a person identified as a parent at the time of birth even though not a biological parent.

69.    The Minster’s construction as to timing might have been plainer if the phrase “at the time of birth” had been placed first, rather than last, in the paragraph. As s 16(2)(a) is drafted, it is grammatically possible to interpret “at the time of the birth” as applying only to “was an Australian citizen” and not to “a parent of the person”. If this were correct, the provision could be seen as covering a person who was an Australian citizen at the time an applicant was born but who only became a “parent” of the applicant at some point after the applicant’s birth. Such a situation could only occur, of course, if the Minister’s submissions as to the meaning of parent were rejected.

70.    Having regard to the legislative history of s 16 (which is discussed in detail below), however, the construction as to timing advanced by the Minister is to be preferred. Having regard to that legislative history, the clear better view is that s 16(2)(a) requires that an applicant for citizenship have, at the time of birth, a parent with Australian citizenship. The legislative history of s 16 shows that eligibility for citizenship under predecessor provisions has always required a citizen parent at the time of birth. As the Minister submitted, there is no indication in the extrinsic materials that Parliament intended to change this basic test. This construction is also consistent with s 12(1), according to which a person born in Australia is an Australian citizen in certain circumstances, including that “a parent … is an Australian citizen … at the time the person is born”. Other provisions that support the Minister’s position on timing include s 17(4) to (4B), which address the national security exceptions to the Minister’s non-discretionary duty to approve the application of a person eligible for citizenship under s 16. There would seem to be no logical reason to limit 17(4B) to parents as at the time of birth if s 16(2) were not also so limited. Similar language appears in the context of national security exceptions to other routes to citizenship: see ss 19D(7) (adoption under the Hague Convention on the Protection of Children and Cooperation in respect of Inter-country Adoption 1993, done at The Hague on 29 May 1993), 21(6) (citizenship by conferral) and 24(4B) (resumption of citizenship).

(Emphasis added.)

21    In the above passage, the Full Court accepted the proposition that the words “at the time of birth” in s 16(2)(a) qualify both the status of being a parent and the parent’s citizenship. In other words, the section requires that an applicant for citizenship had, at the time of their birth, a parent who was an Australian citizen.

22    Having set out the above passage from H, the balance of the Tribunal’s reasons was arranged under the following three headings:

(a)    Was Mr P Koka the parent of the [first respondent]?

(b)    Was Mr P Koka an Australian citizen at the time of birth?

(c)    Was Mr P Koka the parent of the [first respondent] at the time of his birth?

23    In relation to the first question, the Tribunal stated at [23] that there was no dispute that Mr Pullumb Koka was the parent of the first respondent, having adopted him in accordance with Albanian law in 1995.

24    In relation to the second question, the Tribunal stated at [25] that there was no dispute that Mr Pullumb Koka was an Australian citizen at the time of the first respondent’s birth.

25    The Tribunal addressed the third question at [27]-[54] of its reasons. The Tribunal stated at [27] that there was no dispute that Mr Pullumb Koka was not the first respondent’s parent at the time of his birth. The Tribunal then summarised the submissions advanced on behalf of the Minister and the first respondent. The Tribunal’s core reasoning was at [47]-[51], in which it stated:

47.    The Tribunal found that the timing in this matter is most relevant to the [first respondent’s] case, and considered this issue in the context of adoption as described in the Laws of Australia:

An adopted child becomes in law the child of the adopter or adopters, and the adopter or adopters become the parent or parents of the child, as if the child had been born to the adopters. This is sometimes known as the ‘substitution principle’, because in law the adoptive parents are substituted for the birth parents.

48.    Additionally, the Tribunal referred to the case of Re K (an infant) [1953] 1 QB 117 where Jenkins LJ said that the purpose of adoption is:

[T]o extinguish all the rights, duties, obligations and liabilities of the parent in regard to the infant, [and] to vest those rights, duties, obligations and liabilities in the adopter, and to convert the infant into the legal equivalent of a child born to the adopter in lawful wedlock, to whom the natural parent becomes in the eye of the law a mere stranger.

49.    The Tribunal, looking at the history of the legislation, found that section 16(2) of the Act had replaced the clear articulation of being the parent at the time of the Applicant’s birth in the Repealed Act:

10B    Citizenship by descent

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

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

with a less grammatically clear phrase: parent at the time of birth. The Tribunal finds that this different choice of language in the legislation opens up the interpretation of the Act, so that it may be interpreted more widely in the manner proposed by the [first respondent].

50.    However, the Tribunal did not seek to depart from the decision in H and as such the Tribunal has found that Mr P Koka had a legal parental relationship with the [first respondent] that commenced when he adopted the [first respondent]. The Tribunal considers this relationship in the same way as if the [first respondent] had been born to Mr P Koka, and therefore finds that Mr P Koka was the [first respondent’s] parent at the time of his birth.

51.    The Tribunal, having taken into consideration all the factors outlined above, determines that Mr P Koka’s parental relationship with the [first respondent] commenced at birth and the [first respondent] therefore had a parent who was an Australian citizen at the time of his birth.

(Footnote omitted; emphasis added.)

26    In the above passage of its reasons, the Tribunal made clear (at [50]) that it did not seek to depart from the decision in H. In the context of the passage from H set out earlier in the Tribunal’s reasons, I understand the Tribunal to be saying that it did not seek to depart from the Full Court’s acceptance of the proposition that the words “at the time of birth” in s 16(2)(a) qualify both the status of being a parent and the parent’s citizenship. In other words, I take the Tribunal to have accepted that the section requires that an applicant for citizenship had, at the time of their birth, a parent who was an Australian citizen. The Tribunal nevertheless considered the requirements of s 16(2)(a) to be satisfied in the present case on the basis that, by virtue of the adoption, Mr Pullumb Koka was deemed to have been the parent of the first respondent at the time of his birth. The Tribunal stated that it was “as if” the first respondent had been born to Mr Pullumb Koka. Accordingly, the Tribunal reasoned, the first respondent had, at the time of his birth, a parent who was an Australian citizen.

27    The Tribunal discussed, and put to one side, the Policy. The Tribunal then reiterated its reasoning on the key point at [54]:

The Tribunal determined that a legal adoption can be considered under section 16(2)(a) of the Act as a fact, as the child is considered to have been born to the parent. The Tribunal did note that this situation would only apply to legally recognised adoptions outside of Australia. The [first respondent] in this case could not access the provisions in section 13 of the Act as his adoption was not in accordance with Australian law, nor subsection AA of the Act as his adoption had taken place before the ratification of the Hague Convention. The Tribunal did not believe the [first respondent] was attempting to bypass the legislation, but rather that he was seeking conferral under the Act in recognition that at law his father was his father as if he had been born to him.

(Emphasis added.)

The appeal

28    The Minister appeals on a question of law pursuant to s 44 of the Administrative Appeals Tribunal Act 1975 (Cth). The Minister states a single question of law in his notice of appeal, namely whether the first respondent is eligible to become an Australian citizen under s 16(2)(a) of the Australian Citizenship Act in circumstances where:

(a)    the first respondent, who was born in 1982 in Albania, did not at the time of his birth have a parent who was an Australian citizen; and

(b)    the first respondent, on 17 May 1995, was adopted in Albania by Mr Pullumb Koka, who had obtained Australian citizenship by conferral in 1955.

29    The notice of appeal contains a single ground, namely that the Tribunal erred in its construction of s 16(2) by interpreting the provision as applying to a non-citizen who was deemed to have an Australian citizen parent at the time of his birth by virtue of having been adopted as a child by an Australian citizen prior to coming to Australia.

30    At the outset of the hearing of the appeal (which took place using video-conferencing software due to the COVID-19 pandemic), I sought clarification from counsel for the first respondent whether he sought to argue that s 16(2) should be construed so that the words “at the time of birth” qualify only the parent’s citizenship rather than both the status of being a parent and the parent’s citizenship. I indicated that, if that was a proposition sought to be advanced, the first respondent may need to file a notice of contention. Counsel for the first respondent responded that he did wish to file a notice of contention and subsequently provided a draft ground of contention during the hearing. The draft ground of contention, which was expressed as an alternative contention, was as follows:

That in circumstances of an adoption, for the purpose of s16(2)(a) of the [Australian Citizenship Act 2007] the term ‘at the time of birth’ applies to the parent, the provision therefore requiring that the person who is the [adoptive] parent, is an Australian citizen at the time of the birth of the child.

31    In oral submissions, counsel for the first respondent clarified that he was not suggesting that H was wrong. The contention was that, in an adoption case, it is sufficient if the person who is the adoptive parent was an Australian citizen at the time of the birth of the applicant for citizenship. On this basis, the Minister did not oppose leave being granted to the first respondent to file a notice of contention with the above ground. Leave was therefore granted.

Consideration

32    The appeal raises an issue of construction in relation to s 16(2) of the Australian Citizenship Act. The issue may be stated as whether the Tribunal erred in construing s 16(2) such that, in the first respondent’s circumstances, as summarised in [2] above, the first respondent was eligible to become an Australian citizen under this section.

33    The Minister’s position is that s 16(2)(a) requires that the applicant for citizenship had, at the time of their birth, a parent who was an Australian citizen as a matter of fact; the requirements for eligibility cannot be satisfied on the basis of deeming by virtue of later adoption.

34    The first respondent’s primary position is that, as the Tribunal reasoned, by virtue of the adoption of the first respondent by Mr Pullumb Koka, Mr Pullumb Koka was deemed to have been the parent of the first respondent at the time of his birth. Accordingly, he had, at the time of his birth, a parent who was an Australian citizen. Alternatively, the first respondent contends that, in an adoption case, it is sufficient if the person who is the adoptive parent was an Australian citizen at the time of the birth of the applicant for citizenship. Although expressed as alternatives, the first respondent’s contentions overlap to a considerable extent.

35    The applicable principles of statutory interpretation are well established and need not be referred to in detail. See Federal Commissioner of Taxation v Consolidated Media Holdings Ltd (2012) 250 CLR 503 at [39]; Certain Lloyd’s Underwriters v Cross (2012) 248 CLR 378 at [25]-[26]; SZTAL v Minister for Immigration and Border Protection (2017) 262 CLR 362 at [14]; H at [50]; Acts Interpretation Act 1901 (Cth), ss 15AA, 15AB.

36    The text of s 16(1) and (2) has been set out at [13] above. The statutory context is, briefly, as follows.

37    The Australian Citizenship Act sets out a number of different ways in which a person may become an Australian citizen. Part 2, Div 1 of the Act deals with the automatic acquisition of Australian citizenship. As explained in the simplified outline in s 11A, the most common way a person becomes an Australian citizen under that Division is by being born in Australia and by having a parent who is an Australian citizen or a permanent resident at the time of birth. There are also some less common ways of becoming an Australian citizen under the Division, including citizenship by adoption (dealt with in s 13).

38    Citizenship by birth is dealt with in s 12, which provides in part:

12    Citizenship by birth

(1)    A person born in Australia is an Australian citizen if and only if:

(a)    a parent of the person is an Australian citizen, or a permanent resident, at the time the person is born; or

(b)    the person is ordinarily resident in Australia throughout the period of 10 years beginning on the day the person is born.

It is convenient to note that the grammatical structure of s 12(1)(a) is similar to that of s 16(2)(a), in that the words “at the time the person is born” are located at the end of the provision.

39    Section 13, which deals with citizenship by adoption, is in the following terms:

13    Citizenship by adoption

A person is an Australian citizen if the person is:

  (a)    adopted under a law in force in a State or Territory; and

(b)    adopted by a person who is an Australian citizen at the time of the adoption or by 2 persons jointly at least one of whom is an Australian citizen at that time; and

(c)    present in Australia as a permanent resident at that time.

40    The other provisions relating to the automatic acquisition of Australian citizenship are: s 14 (citizenship for abandoned children); and s 15 (citizenship by incorporation of Territory).

41    Part 2, Div 2 deals with the acquisition of Australian citizenship by application. In contrast with the automatic obtaining of citizenship under Div 1, under Div 2 it is necessary to make an application to become an Australian citizen. Division 2 has four Subdivisions:

(a)    Subdivision A – Citizenship by descent (ss 15A-19A);

(b)    Subdivision AA – Citizenship for persons adopted in accordance with the Hague Convention on Intercountry Adoption or a bilateral arrangement (ss 19B-19F);

(c)    Subdivision B – Citizenship by conferral (ss 19G-28); and

(d)    Subdivision C – Resuming citizenship (ss 28A-32).

42    Section 15A contains a simplified outline of Subdivision A. It states in part that a person may be eligible to become an Australian citizen under the Subdivision in two situations. The first, which is covered by s 16(2), is summarised in the following way: “you were born outside Australia on or after 26 January 1949 and a parent of yours was an Australian citizen at the time of your birth”. The second situation relates to persons born outside of Australia or New Guinea before 26 January 1949 and can be put to one side for present purposes. Section 17 deals with the Minister’s decision in relation to an application under s 16:

17    Minister’s decision

(1)    If a person makes an application under section 16, the Minister must, by writing, approve or refuse to approve the person becoming an Australian citizen.

(1A)    The Minister must not approve the person becoming an Australian citizen unless the person is eligible to become an Australian citizen under subsection 16(2) or (3).

(2)    Subject to this section, the Minister must approve the person becoming an Australian citizen if the person is eligible to become an Australian citizen under subsection 16(2) or (3).

Identity

(3)    The Minister must not approve the person becoming an Australian citizen unless the Minister is satisfied of the identity of the person.

Note:    Division 5 contains the identity provisions.

National security

(4)    If the person is not covered by subsection (4B), the Minister must not approve the person becoming an Australian citizen at a time when an adverse security assessment, or a qualified security assessment, in respect of the person is in force under the Australian Security Intelligence Organisation Act 1979 that the person is directly or indirectly a risk to security (within the meaning of section 4 of that Act).

(4A)    If the person is covered by subsection (4B), the Minister must not approve the person becoming an Australian citizen if the person has been convicted of a national security offence.

(4B)    A person is covered by this subsection if:

(a)    at the time the person made the application under section 16, the person:

(i)    is not a national of any country; and

(ii)    is not a citizen of any country; and

(b)    at the time of the person’s birth, the person had a parent who was an Australian citizen.

Cessation of citizenship

(5)    If the person has at any time ceased to be an Australian citizen, the Minister must not approve the person becoming an Australian citizen during the period of 12 months starting on the day on which the person ceased, or last ceased, to be an Australian citizen.

(Emphasis added.)

43    Section 18 deals with registration in circumstances where the Minister approves the person becoming an Australian citizen. Section 19 provides that a person becomes an Australian citizen under the Subdivision on the day on which the Minister approves the person becoming an Australian citizen. Section 19A provides:

19A    When a person does not become a citizen despite the Minister’s approval

Despite section 19, a person does not become an Australian citizen under this Subdivision, even if the Minister approves the person becoming an Australian citizen, unless:

(a)    if the person was born on or after 26 January 1949—a parent of the person was an Australian citizen at the time of the person’s birth; or

(b)    if the person was born before 26 January 1949—a parent of the person became an Australian citizen on 26 January 1949.

44    Subdivision AA deals with citizenship for persons adopted in accordance with the Hague Convention on Intercountry Adoption or a bilateral arrangement. In the present case, the first respondent did not seek to become an Australian citizen under the provisions of this Subdivision. While it is not necessary to refer to the provisions of this Subdivision in any detail, these provisions are relevant to the extent that they (together with s 13) demonstrate that the Australian Citizenship Act contains provisions that are specifically directed to the acquisition of citizenship in circumstances of adoption.

45    Subdivision B deals with citizenship by conferral. As explained in the simplified outline in s 19G, a person may be eligible to become an Australian citizen under the Subdivision in seven situations. These situations are covered in s 21. The balance of the Subdivision elaborates on certain concepts and contains procedural provisions.

46    Subdivision C is concerned with resuming citizenship. Under this Subdivision, as explained in the simplified outline in s 28A, a person may be eligible to become an Australian citizen under the Subdivision if the person ceased to be an Australian citizen under the Act or its predecessor.

47    Although the word “child” is not used in s 16 – the provision of central relevance – I note for completeness that the word is defined in s 3 as follows:

child: without limiting who is a child of a person for the purposes of this Act, each of the following is the child of a person:

 (a)    an adopted child, stepchild or exnuptial child of the person;

(b)    someone who is a child of the person within the meaning of the Family Law Act 1975.

48    I also note that the concept of a “responsible parent” is defined in s 6.

49    Having set out the statutory context, I now turn to consider, more directly, the issue of construction of s 16. As discussed by the Full Court in H at [69], the construction of the provision might have been plainer if the phrase “at the time of birth” had been placed first, rather than last, in s 16(2)(a). As the provision is drafted, it is grammatically possible to interpret “at the time of birth” as applying only to the phrase “was an Australian citizen” and not to “a parent of the person”.

50    It is common ground in the present case that the observations of the Full Court in H at [67]-[70] are not strictly binding, on the basis that they did not form part of the essential reasoning on the issue to be determined in that case. It is unnecessary to determine whether or not that common position is correct. Assuming that the observations are not strictly binding, they are, in my respectful opinion, persuasive. For the reasons given by the Full Court, when regard is had to the legislative history and statutory context, the clearly better view is that s 16(2)(a) requires that an applicant for citizenship had, at the time of their birth, a parent who was an Australian citizen. As the Full Court stated at [70], the legislative history of s 16 shows that eligibility for citizenship under the predecessor provisions has always required a citizen parent at the time of birth. As the Full Court noted, there is no indication in the extrinsic materials that Parliament intended to change that basic test. Further, as the Full Court noted, that construction is consistent with s 12(1), according to which a person born in Australia is an Australian citizen in certain circumstances, including that “a parent … is an Australian citizen … at the time the person is born”. Other provisions support the construction adopted by the Full Court in H; for example, ss 17(4)-(4B), which address the national security exceptions to the Minister’s non-discretionary duty to approve the application of a person eligible for citizenship under s 16. There would seem to be no logical reason to limit s 17(4B) to parents as at the time of birth if s 16(2) were not also so limited. As the Full Court noted, similar language appears in the context of the national security exceptions to other routes to citizenship: see ss 19D(7) and 24(4B). For the reasons given by the Full Court in H, outlined above, I consider the construction of s 16(2) adopted by the Full Court at [67]-[70] to be correct.

51    Accepting that the words “at the time of birth” qualify both the status of being a parent and the parent’s citizenship in s 16(2), the ordinary meaning of the words used in the provision is that the eligibility requirements need to be established as a matter of fact, as distinct from deeming on the basis of later adoption. In other words, the applicant for citizenship must have had, at the time of their birth, a parent with Australian citizenship as a matter of fact. There is no indication in the text of the provision or the statutory context or purpose that these requirements can be satisfied on a deemed basis by virtue of principles relating to the law of adoption. The statutory context includes, in s 13 and Pt 2, Div 2, Subdiv AA, specific provisions relating to the acquisition of Australian citizenship in circumstances of adoption. While the presence of those provisions should not lead to a narrower construction of s 16(2), their presence makes clear that s 16(2) is not directed at an adoption situation.

52    The statutory context also includes the definitions of “child” and “responsible parent”, but these do not appear to shed any light on the issue.

53    The first respondent did not point to any textual or contextual considerations that suggest that the eligibility requirements in s 16(2) can be satisfied on a deemed basis by virtue of principles relating to the law of adoption. In oral submissions, counsel for the first respondent submitted that the “whole purpose” of adoption is for the adoptive parent to “step into the shoes” of the biological parent. The Tribunal referred to and evidently relied on general principles relating to adoption law, drawn from the Laws of Australia (quoted by the Tribunal at [47]). However, with respect, general principles of adoption law are not to the point. The question for present purposes concerns the construction of s 16(2) and whether the eligibility requirements in the provision can be satisfied on a deemed basis. This requires consideration of the text, context and purpose of s 16, rather than general principles of the law of adoption.

54    In my view, in light of the above, there is no basis to depart from the ordinary meaning of the words used in s 16(2), which is that the eligibility requirements of the provision need to be satisfied as a matter of fact, as distinct from deeming based on later adoption. Neither the context nor the purpose of the provision suggest that the requirements can be satisfied on a deemed basis. Accordingly, in my view, it is necessary for an applicant for citizenship under s 16 to show that they had, at the time of their birth, a parent with Australian citizenship as a matter of fact (as distinct from deeming based on later adoption).

55    I note for completeness that this view accords with an observation made by the Full Court in H at [122]. Having reiterated the view it took at [67]-[70] as to the construction of s 16(2), the Full Court indicated, by way of example, that “even infant adoptees would be unable to satisfy this requirement” (this is, the requirement that they had, at the time of birth, a citizen parent). However, the Full Court was not presented with any argument along the lines presented in the present case, and was not dealing with a case involving adoption. I therefore do not rely on that observation by the Full Court.

56    The notice of contention does not raise any separate or additional issue. By the notice of contention, the first respondent contends that, in circumstances of adoption, s 16(2)(a) requires that the person who is the adoptive parent was an Australian citizen at the time of the birth of the applicant for citizenship. In other words, it is contended that, in an adoption situation, the adoptive parent need not have been the parent at the time of birth. For the reasons given above, I do not accept that construction.

57    For these reasons, in my view, the Tribunal erred in its construction of s 16(2).

Conclusion

58    It follows that the appeal is to be allowed and the decision of the Tribunal set aside, as sought in the notice of appeal. The notice of appeal also seeks an order that the matter be remitted to the Tribunal to be decided in accordance with law. I will also make an order to this effect. In relation to costs, it appears to be appropriate to order that the first respondent pay the Minister’s costs of the appeal. I will make an order to this effect, but will also allow a short period of time in case either party wishes to seek a different costs order.

Associate:

Dated:    14 October 2020