FEDERAL COURT OF AUSTRALIA

Lumumba v Minister for Immigration, Citizenship and Multicultural Affairs (No 2) [2022] FCA 1523

ORDERS

THE COURT DECLARES THAT:

1.    Regulation 7C of the Australian Citizenship Regulations 1960 (Cth) is invalid.

THE COURT ORDERS THAT:

2.    The time in which the application for judicial review may be brought be extended to 16 May 2022.

3.    The decision made on 12 October 2005, purportedly under reg 7C of the Australian Citizenship Regulations 1960 (Cth) to cancel the registration of the applicant as an Australian citizen, be set aside, with effect from 12 October 2005.

4.    The first respondent pay the applicant’s costs of the proceeding, to be fixed by way of an agreed lump sum or, in default of agreement, by way of a single lump sum fixed by a Registrar.

AND THE COURT DIRECTS THAT:

5.    The Court’s Registry place copies of each of the affidavits of Laura Groves dated 4 May 2022 and 22 July 2022, amended to reflect the rulings set out in the Court’s reasons dated 16 December 2022, on the Court’s electronic file.

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

REASONS FOR JUDGMENT

MORTIMER J:

1    The applicant has applied to the Court for review of a decision of the first respondent (the Minister for Immigration, Citizenship and Multicultural Affairs). The decision is described as a decision to cancel the registration of the applicant’s Australian citizenship by descent. The applicant seeks orders extending the time in which he might make the application (if such orders are required), orders setting aside the Minister’s decision, and orders for his release from immigration detention. He also seeks an order for the respondents to pay his costs.

2    The applicant has brought this proceeding pursuant to both the Administrative Decisions (Judicial Review) Act 1977 (Cth) and s 39B of the Judiciary Act 1901 (Cth).

3    For the reasons set out below, the judicial review challenge succeeds, and there will be orders accordingly. However, there is no present basis, on the evidence before the Court, for the applicant to be released from immigration detention.

EVIDENCE

4    At the hearing in this proceeding on 5 August 2022:

(a)    the applicant read the following affidavits:

(i)    an affidavit of Catherine Holbeche dated 3 May 2022;

(ii)    an affidavit of Ms Holbeche dated 4 May 2022;

(iii)    an affidavit of Ms Holbeche dated 12 May 2022;

(iv)    an affidavit of Ms Holbeche dated 26 July 2022; and

(v)    an affidavit of Ms Holbeche dated 3 August 2022; and

(b)    the Minister read the following affidavits:

(i)    an affidavit of Laura Groves dated 4 May 2022; and

(ii)    an affidavit of Ms Groves dated 22 July 2022.

5    At the hearing, the Minister objected to certain passages in the affidavits of Ms Holbeche, on the basis that those passages contained inadmissible hearsay. The Court upheld the objection and ruled that the statements by Ms Holbeche, deposing to instructions received or information and belief based on what the applicant has told her, was not admissible. The parties were instructed to confer and jointly mark-up and re-file the affidavits in line with that ruling. The Court instructed the Minister to do the same in relation to the affidavits of Ms Groves. The Court also ruled that the affidavit of Ms Holbeche dated 4 May 2022 was not admissible, again because the substantive parts of that affidavit comprised inadmissible hearsay.

6    The annexures to affidavits filed in the proceeding contained significant duplication. After the hearing, at the request of the Court, the Minister filed on 2 November 2022 an agreed tender bundle that collated all annexures to affidavits filed in the proceeding, without duplicated annexures. A covering note for that tender bundle sent to Chambers by the Minister on 28 October 2022, which has been uploaded to the Court’s electronic file, contains a list of duplicated annexures that have been removed from that tender bundle.

7    The applicant filed amended versions of the affidavits read by the applicant on 4 and 7 November 2022. The parties did not agree as to the application of the Court’s ruling to the affidavits read by the Minister, and the parties sent to the Court on 27 October 2022 a joint document indicating their positions regarding the application of the Court’s ruling to certain parts of the affidavits read by the Minister. The parties were notified the following day, by email, that the Court would rule on the matters contained in that joint document as part of its final reasons. I set out these rulings directly below.

8    As to the affidavit of Ms Groves dated 4 May 2022:

(a)    The applicant contends that the first two sentences of [21] are inadmissible hearsay. In those two sentences Ms Groves deposes to the applicant being refused a bridging visa, and the bridging visa being later granted following an appeal to the Administrative Appeals Tribunal. The Minister contended that the relevant passages were not contentious and would assist the Court. In response, the applicant contended that “[t]o assert something is not contentious is not a proper response to a hearsay objection”.

(i)    In my opinion this objection should be overruled. Although the Minister did not put this argument, it is clear from [21] that Ms Groves is giving evidence based on departmental records. She attaches a screenshot from those records. The paragraph and the exhibit are admissible pursuant to s 69 of the Evidence Act 1995 (Cth).

(b)    The applicant contends that the whole of [24] is inadmissible hearsay. In that paragraph, Ms Groves deposes to being instructed by officers of the Department of Home Affairs that the applicant did not seek review of the decision to refuse to grant him a protection visa. The parties make the same argument as for [21], referred to above, although the applicant adds that the contents are contentious if any inference about acquiescence is to be drawn from them.

(i)    This objection should also be overruled. The evidence is based on departmental records.

(c)    The applicant objects to the whole of [28]-[29] on the basis of relevance, citing the transcript at p 13, ll 20-37. At [28]-[31], Ms Groves deposes to matters involving DNA testing and detainee requests, and to information received from her client as to DNA testing. The Minister contended that this was “[n]ot the basis on which this process was permitted and is relevant to the issue raised at paragraph 12 of the Minister’s submissions of 26 August 2022”.

(i)    This objection is upheld. Evidence about possible DNA testing processes in the future is irrelevant to the matters before the Court. While it is true that at various points the Court has been informed about these processes being the subject of discussion between the parties, this information was relevant at those points only for the purposes of case management. Facts about the progress, or lack of progress, towards DNA testing are not relevant to the issues the Court must now decide.

9    As to the affidavit of Ms Groves dated 22 July 2022:

(a)    The applicant objects to the whole of [5]-[6] on the basis of relevance, citing the transcript at p 13, ll 20-37. In these paragraphs, Ms Groves deposes to her understanding based on conversations with the applicant’s solicitor as to DNA testing. In response, the Minister made the same contention as that quoted at [8(c)] above.

(b)    The applicant also objects to the whole of annexure LG4 on the basis of relevance, citing the transcript at p 13, ll 20-37. Annexure LG4 is described as a chain of emails relating to information to which Ms Groves deposes in [5] of this affidavit, referred to at [8(a)] above. In response, the Minister made the same contention as that extracted at [8(c)] above.

(i)    These objections should be upheld for the reasons I have given above at [8].

10    The Court’s Registry will be directed to place a version of the two affidavits reflecting these rulings on the Court’s electronic file.

RELEVANT FACTS

11    In this section I make findings of fact based on the evidence which forms part of the narrative to the point of trial. Where findings of fact need to be made in resolving the grounds of review, I do that in the resolution section of these reasons.

12    The applicant was born in the Democratic Republic of the Congo in 1989. He lived in the DRC until the age of seven, when he went to Ghana. A form 118 (‘Application for Registration of Australian Citizenship by Descent’) dated 20 July 2004, in evidence before the Court as part of the applicant’s departmental file, records that the applicant’s natural mother was not an Australian citizen at the time of the applicant’s birth. It also records that the applicant’s natural father was an Australian citizen at the time of the applicant’s birth. It is not disputed that the individual recorded as the “natural father” of the applicant on this form 118 was, at the relevant time, an Australian citizen. For convenience, I have referred in these reasons to the person recorded as the applicant’s “natural father” in the form 118 as ‘Mr L’.

13    The applicant was registered as an Australian citizen on 27 July 2004.

14    The departmental file indicates that, in July 2005, departmental officers had commenced investigating whether there were any discrepancies or inconsistencies arising from the fact that by 2005 Mr L had registered six children as Australian citizens by descent on the grounds that he was their father. Among these children were the applicant, as well as a child described in correspondence on the departmental file as the applicant’s twin sister.

15    The departmental file indicates that after a month or two of investigations until August 2005 the Department formed a view that the applicant’s citizenship registration might have been obtained on the basis of false information, and departmental officers sought to put their suspicions to Mr L (but not to the applicant).

16    A departmental file note from this time provides an insight into the officers’ position:

[Applicant’s twin sister] and [applicant] - not the natural children of Mr [L]

According to their 118 applications, these children are twins. These children were conceived in January 1989. The woman named as their mother on their birth certificates has never been to Australia. [Mr L] was onshore from July 1987 until August 1989.

[Mr L] lodged applications for registration almost 15 years after their birth. DFAT has issued a passport in the name [applicant’s twin sister’s name] however it has not been used for entry to Australia.

(Original emphasis.)

17    The departmental file contains draft correspondence dated 18 August 2005. Only the draft was in evidence, because the final letter was sent to Mr L and not to the applicant. The applicant could not produce a copy of the letter, for reasons he explained relating to his lack of contact with Mr L. It appears no copy of the final letter was retained on the Department’s file.

18    However, given subsequent events, it is reasonable to infer, and I do infer, that a letter with the same substantive content as the draft was sent to Mr L, at some stage around August 2005.

19    The draft stated:

Information held by the Department of Immigration and Multicultural and Indigenous Affairs indicates that you are not the natural father of [two of the applicant’s siblings]. I am writing to formally On the basis of this infor[mation] I am notify[ing] you that I am considering cancelling the registration of [two of the applicant’s siblings] Australian citizenship, and to give you an opportunity to respond to my claim.

…

If you do not accept my claim that you are not the natural parent of [two of the applicant’s siblings], please notify me in writing and advise me of your, [applicant’s sibling] and [applicant’s sibling]’s current residential and postal addresses. I will then offer the three of you the opportunity to provide proof of your claimed relationship through DNA (genetic) testing. To do this, bodily samples will be required from you and [two of the applicant’s siblings]. The opportunity to use DNA testing is an offer, not a requirement. Should you and [two of the applicant’s siblings] not wish to take up this offer, my decision (relating to their status as Australian citizens) will be made on the basis of the information available to me at the time of my decision. You should be aware of the conclusive nature of DNA test results.

(Strikeout in original, italics represent handwritten notations in original.)

20    At the bottom of the draft, the draft indicated that a copy of the letter would be sent by registered mail to the applicant’s two siblings at an address in Angola. There is no evidence that this in fact occurred and I am not persuaded it did occur. For example, there are no further departmental records of sending any correspondence by registered mail to Angola.

21    In one file note relating to the applicant and his twin sister, a departmental officer, apparently with carriage of the cases, states:

According to the information provided on form 118 “Application for registration of Australian citizenship by descent”, these clients were born to the same mother on 10 October 1989. The mother’s name is [redacted name of applicant’s mother], and her birth date appears to be unknown.

Their birth certificates and the responses on form 118 state that their father is [Mr L].

These children must have been conceived on or around 10 January 1989.

There is no record of an arrival by a person called [redacted name of applicant’s mother] in Australia. I believe that [redacted name of applicant’s mother] has never been to Australia.

Departmental records show that [Mr L] was in Australia from 1 July 1987 until 14 August 1989.

I believe that [the applicant’s twin sister] and [the applicant] were conceived while [Mr L] was in Australia. Therefore, [Mr L] cannot be their biological father.

In the interests of natural justice, I recommend that [the applicant’s twin sister], [the applicant] and [Mr L] be given the opportunity to undergo DNA testing.

If [the applicant’s twin sister] and [the applicant] are unable to prove that they are the natural children of [Mr L], I recommend that we consider cancelling the entries in the register of citizenship by descent under Citizenship Regulation 7C.

22    There are further internal records discussing the cancellation of the citizenship registration of other children said to be children of Mr L. These records sometimes also refer to the applicant. In one of the internal records, the same departmental officer states:

One option is that I cancel [another sibling], [the applicant’s twin sister] and [the applicant’s] registration on the strength of the information we already have. It would be possible to do this without notifying the clients in advance, and would mean that we could reduce the possibility of [the applicant’s twin sister’s] passport being used for travel to Australia. Do you think this course of action would withstand legal scrutiny? If not, can we be confident that the AAT would ask for DNA tests?

23    One matter which should be noted about this file note is that it indicates a clear consciousness that the applicant (and his twin sister) would have merits rights in the AAT if an adverse decision were made. The departmental officer also states:

I propose to send the letters by registered post to the addresses that Mr [L] put on each of the applications as his own address – he’s given a Melbourne street address on some applications, and a Melbourne PO Box address on others. I also intend to send copies of all of the letters (by registered post) to the children at the residential addresses in Africa as listed on their 118 forms so that they have an opportunity to defend themselves if Mr [L] does not. Is it correct to address the letters to Mr [L], given that he was not the applicant for registration?

The main difficulty in the notification process is that department knows that Mr [L] has been offshore since last year, and thus it is unlikely that he will respond to the letters that I send. Any review of a decision to cancel registrations in these circumstances is likely to find that the decision was legally flawed due to the absence of natural justice. There are not any provisions for deeming receipt of mail from the department in the Citizenship Act. Are you aware of any common law deeming provisions which may assist us?

24    The file then contains a notation of a decision made on 12 October 2005 (cancellation decision) to:

Cancel the registration by descent of [the applicant’s twin sister] and [the applicant] under regulation 7C of the Australian Citizenship Regulations 1960.

25    The same day, a delegate of the Minister wrote to Mr L, notifying him of the cancellation of the applicant’s registration by descent pursuant to reg 7C of the Australian Citizenship Regulations 1960 (Cth). The letter (notification letter) in which the cancellation decision was notified indicated that:

Information held by the Department of Immigration and Multicultural and Indigenous Affairs now indicates that the registration by descent was made on the basis of false information, and that the legal requirements of [s] 10B (1)(a) and (b)(i) [of the Australian Citizenship Act 1948 (Cth)] were never met.

I am therefore writing to notify you that I am cancelling the registration by descent of [the applicant] under regulation 7C of the Australian Citizenship Regulations 1960.

26    The reference to “false information” in the notification letter to Mr L was not explained in that letter. The evidence before the Court indicates that no separate reasons were provided in relation to this decision. I discuss this matter further below.

27    On 13 November 2005, a lawyer wrote to the Department indicating that Mr L had approached his law firm regarding the cancellation of the citizenship of three of his children, and that law firm had referred the matter to the lawyer in his capacity as a migration agent. The lawyer requested disclosure of the “false information” referred to by the department. The Minister submits, and I accept, that the fact of this letter so soon after the notification letter was sent to Mr L, and the contents of this letter from the lawyer, are a sufficient basis to infer that Mr L received the notification letter.

28    The applicant arrived in Australia on 30 November 2013 on an Australian passport. Documents in the Department’s file state that the passport was issued to the applicant in Nairobi on 1 October 2013 on the basis of citizenship by descent.

29    A ‘National Identity Verification and Advice Unit Referral Pro-Forma’ document on the departmental file records that an officer of the Department of Foreign Affairs and Trade interviewed the applicant on or around 30 January 2014. While this document was admitted into evidence, it should be noted that it is at least third-hand hearsay: it is a summary of the interviewer’s notes from the interview, recording what the applicant said at that interview.

30     The document records that the applicant:

•    had no contact with his father [Mr L] from when the Civil war started in the Congo until last year (2013) when a friend located [Mr L] on his behalf and arranged for them to re-connect.

•    …

•    [The applicant] did not have any contact with [Mr L] from the mid 1990’s till 2013, it would not have been possible for him to have been aware that in 2005 his Citizenship was cancelled.

•    He did not know he was an Australian Citizen until 2013.

31    It is not clear on the evidence before the Court why the applicant was issued an Australian passport in 2013 despite the registration of his Australian citizenship having been cancelled in 2005. It appears on the records available that it only came to the Department’s attention that the applicant had been able to receive an Australian passport when the applicant approached one of the Department’s citizenship reception desks in Victoria on 9 December 2013, enquiring about the process for lodging a descent application for his own children. The record of this event, which is an internal departmental email, suggests that it was the applicant (and not, for example Mr L) who attended the reception desk and enquired as to the descent application.

32    The officer who indicates in the record that she spoke to the applicant at the helpdesk stated in her internal communication:

[The applicant] approached our reception today enquiring about the process for lodging a descent application for his children.

The ICSE record indicates that on 12 October 2005 notification was sent advising that the Register of Citizenship by Descent for [the applicant] was cancelled. This client was issued an Australian passport on 1 October 2013 and it appears that the descent extract was never void.

I am not entirely sure what the process is in ICSE when we cancel registration but it appears from this ICSE record like a few steps have been missed. Can you please advise of what happens in this circumstance. I have updated the client’s phone number in ICSE if you need to contact him.

33    I infer that ICSE is the department’s internal record keeping system.

34    Other internal correspondence and records in evidence indicate the Department was not aware how the applicant was issued an Australian passport despite his registration of Australian citizenship having been cancelled. These instances variously speculate that “it appears DIBP didn[’t] properly void the client[’s] [citizenship certificate] in ICSE and didn[’t] raise a WX alert”, and that:

It is likely that the decision maker did not correctly void the client’s citizenship certificate in DIBP systems and the document was never destroyed.

35    It appears that some time after the January 2014 interview, departmental officers decided to treat the applicant as an unlawful non-citizen. He was granted three bridging visas between May and June 2014. He was subsequently detained on 20 October 2014. The record of interview conducted at the time he was detained, on 21 October 2014, records in a handwritten note (which I infer was recorded by the interviewing officer) that:

* states he doesn’t know why his citizenship and passport were taken from him *

36    An internal Department email dated 23 October 2014, I infer sent by the officer interviewing the applicant, records:

States he came to Australia as a citizen on an A/an passport and does not know why this has been taken from him.

37    It is also clear from this and other records, as the Minister submitted, that at least by this point in time the applicant understood that his passport had been cancelled and that he was being told he had no lawful migration status in Australia.

38    On 17 November 2014, the applicant lodged a freedom of information (FOI) request, seeking access to “documents relating to [his] citizenship and passport and why it has been cancelled”. On 15 December 2014 the applicant received an FOI access decision refusing his request for documents, which stated that:

A thorough search of department records reveals you have never had your Australian citizenship cancelled as you have never held Australian citizenship and, therefore, there is no information held by the Department relating to the cancellation of your Australian citizenship for me to release to you and as such, your request for access to such information is refused under section 24A(b)(ii) of the FOI Act on the grounds that no such information exists within the department. You lodged an application for Australian citizenship by descent on 21 July 2004. That application was deemed invalid on 12 October 2005 and you were duly notified of that decision.

39    That answer was plainly incorrect, now that the evidence of the departmental file has been adduced. The search conducted could not possibly have been “thorough”, as asserted.

40    The applicant applied for a protection visa on 23 December 2014. With certain presently irrelevant exceptions, this is the only visa which is generally able to be applied for onshore. On 22 June 2015 the applicant was refused a bridging visa relating to that application, but following an appeal to the AAT that bridging visa was granted on 6 July 2015 and the applicant was released from detention. A delegate of the Minister refused to grant a protection visa on 9 November 2017. The applicant was renotified of that refusal on 7 January 2020. On 5 February 2020 the applicant’s bridging visa lapsed, and he was once again detained.

41    The departmental file indicates that an “identity interview” was conducted by the Department of Home Affairs on 5 August 2020. On 11 August 2020, the Department informed the applicant it “does not have sufficient evidence to be satisfied that the claimed parent … was your parent at the time of your birth”, and offered to organise DNA testing for the applicant.

42    Around September 2020, the applicant engaged his current solicitors. The applicant’s solicitors assisted him to make a series of FOI requests, including applications for reviews of FOI decisions of the Department of Home Affairs. The first of these FOI requests was made in October 2020. On 19 April 2021, the Department released the requested information in part, with significant redactions. Some key documents were incomplete, such as the version of the notification letter to Mr L referred to at [25] above.

43    On 10 May 2021, the applicant’s solicitors sought access to the redacted information. The applicant’s solicitors followed up on numerous occasions, but as of 2 May 2022 had not received further unredacted documentation.

44    The full notification letter to Mr L was provided to the applicant and his solicitors on 2 May 2022, by the Minister’s solicitors. The applicant’s solicitor deposed this was the first time she and the applicant had been provided with that letter.

45    On the evidence, there is no separate record of reasons for the cancellation decision.

46    In May 2022, the Commonwealth and Secretary of the Department of Home Affairs sought to remove the applicant from Australia. The applicant sought an urgent injunction against the Commonwealth and Secretary prior to the commencement of these proceedings. An injunction was granted on 4 May 2022: see Lumumba v Commonwealth of Australia [2022] FCA 527. There was some evidence about ongoing discussions between the applicant and his solicitors, and the Department and the Minister’s solicitors, about DNA testing. I have ruled some of the affidavit evidence about these matters inadmissible. This proceeding is not one seeking declaratory relief about the applicant’s citizenship status. It is a judicial review application about the decision to cancel his citizenship registration. While, ultimately, it is very important that the question of the applicant’s citizenship status is resolved, it is not the direct subject matter of this proceeding.

THE APPLICABLE STATUTORY REGIME

47    The applicant was registered as an Australian citizen by descent pursuant to s 10B of the Australian Citizenship Act 1948 (Cth) (1948 Act), which was repealed and replaced by the Australian Citizenship Act 2007 (Cth). As at the applicable date of 12 October 2005, s 10B of the 1948 Act stated:

10B     Citizenship by descent

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

(a)     the name of the relevant person is registered for the purposes of this section at an Australian consulate, and the registration is the result of an application made within 25 years of the person's birth to register the person's name for those purposes; and

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

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

(ii)     was:

(A)     at that time an Australian citizen who had acquired Australian citizenship by descent; and

(B)     at any time before the registration of the name of the relevant person (including a time before the birth of the relevant person), present in Australia, otherwise than as a prohibited immigrant, as a prohibited non-citizen, as an illegal entrant, as an unlawful noncitizen, or in contravention of a law of a prescribed Territory, for a period of, or for periods amounting in the aggregate to, not less than 2 years.

Note:     for the meaning of acquiring Australian citizenship by descent, see subsection (5).

(1A)     If the relevant person referred to in subsection (1) has attained the age of 18 years, the name of the relevant person must not be registered for the purposes of this section unless the Minister is satisfied that the relevant person is of good character.

(2)     Where, at the time of the birth of a child (in this subsection referred to as the relevant child), one of the parents of the relevant child was not an Australian citizen, the name of the relevant child shall not be registered for the purposes of this section at an Australian consulate unless the person applying to register the name declares in writing to the person to whom the application is made, or otherwise satisfies that person, that:

(a)     at least one person who is, at the time of the application, a responsible parent of the relevant child, was, at the time of the birth of the relevant child:

(i)     a parent of the relevant child; and

(ii)     an Australian citizen; or

(b)     a person who was, at the time of the birth of the relevant child:

(i)     a parent of the relevant child; and

(ii)     an Australian citizen;

is dead.

(3)     The validity of the registration at an Australian consulate of the name of a person is not affected by a failure to comply with subsection (2) in relation to that registration.

(4)     A person born outside Australia is an Australian citizen if, before the commencement of the Australian Citizenship Amendment Act 1990:

(a)     an application was made to register the person’s name at an Australian consulate for the purposes of this section before the person turned 18; and

(b)     the person’s name was so registered even though the person had turned 18 at the time of registration.

(5)     For the purposes of this section, a person acquires Australian citizenship by descent if the person acquires Australian citizenship under:

(a)     this section; or

(b)     section 10C; or

(c)     section 11 of this Act as in force at any time before or after the commencement of this section.

(Original emphasis.)

48    Sections 10C and 11, referred to in s 10B(5), related to citizenship by descent for persons aged 18 or over on 15 January 1992 and citizenship by descent through a person’s mother, respectively, and were not in issue in the proceeding.

49    Section 10B is declaratory. A person becomes an Australian citizen by operation of the provision itself, if all the elements are met. That is why the text is expressed as “[a] person is an Australian citizen if …”. The operation of the provision in this way is of some significance to the parties’ arguments in the proceeding.

50    Relevantly to this proceeding, the key elements of s 10B are:

(a)    the person is born outside Australia;

(b)    that person’s name is registered at an Australian consulate;

(c)    the application (for citizenship) is made within 25 years of the person’s birth; and

(d)    at the time of the birth of that person, one of the person’s parents was an Australian citizen otherwise than by descent.

51    In addition, by s 10B(1)(b), where one of the person’s parents is not an Australian citizen, the Australian citizen parent must fall within the definition of a “responsible parent”. That term is defined in s 5 of the 1948 Act to make allowances for custodial arrangements under the Family Law Act 1975 (Cth), but relevantly to the applicant and Mr L, also simply re-used the term “parent”, which was the one applicable to Mr L.

52    Section 53 of the 1948 Act stated as follows:

53    Regulations

The Governor-General may make regulations, not inconsistent with this Act, prescribing all matters which by this Act are required or permitted to be prescribed, or which are necessary or convenient to be prescribed for carrying out or giving effect to this Act, and, in particular, for or in relation to:

(a)    the time within which anything required or authorized to be done under this Act shall be done;

(b)    the registration of anything required or authorized under this Act to be registered;

(c)    the making of a pledge of commitment for the purposes of this Act;

(d)    the giving of any notice which under this Act is required or authorized to be given to any person;

(f)    the imposition and recovery of fees in respect of:

(i)    any application under this Act;

(ii)    any registration, the making of any declaration, the grant of any certificate or the making of a pledge of commitment authorized to be made or granted under this Act; and

(iii)    the supplying of a certified or other copy of any declaration, certificate or oath made, granted or taken under this Act;

(fa)    the remission, refund or waiver of fees of a kind referred to in paragraph (f) or the exemption of persons from the payment of such fees;

(g)    the issue of certificates declaratory of the Australian citizenship of persons who are Australian citizens;

(h)    the conditions upon which persons may render, for reward, services in respect of applications under this Act including the charges which may be made in respect of any such service;

(j)    the imposition of penalties not exceeding a fine of $1,000 for any offence against the regulations; and (k) the investing of any court of a State with federal jurisdiction to order reparation for loss suffered by reason of any offence against this Act or the regulations.

53    The purported cancellation decision (see [24], above) was effected pursuant to reg 7C of the Regulations. Regulation 7C provided:

7C    Cancellation of registration

(1)     For section 10B of the Act, the Minister may, in writing, cancel the registration of a person’s name.

(2)     However, the Minister must not cancel the registration unless:

(a)     he or she is satisfied on reasonable grounds that the registration has been made on the basis of false information; or

(b)    in the case of a registration relating to the birth of a person mentioned in paragraph 12 (1) (a) of the Australian Citizenship Regulations (Amendment) (Statutory Rules 1984 No. 351) — the person’s name has been registered in accordance with regulation 12 of those Regulations;

and he or she considers that the purposes of the cancellation would not be achieved by a correction of the relevant information.

Note Regulation 12 of the Australian Citizenship Regulations (Amendment) is a transitional provision dealing with the registration of births under the Regulations before 30 November 1984.

(Original emphasis.)

54    Regulation 22 provided:

22     Review of decisions

(1)    If the Minister cancels the registration of a person’s name, the Minister must, by notice in writing given not later than 30 days after the date of the cancellation, inform the person or persons whose interests are affected by the cancellation of the cancellation and of the grounds for it.

(2)    An application may be made to the Administrative Appeals Tribunal for review of a decision referred to in subregulation (1).

(3)    A notice referred to in subregulation (1) shall include a statement to the effect that, subject to the Administrative Appeals Tribunal Act 1975, application may be made to the Administrative Appeals Tribunal for review of the decision to which the notice relates by or on behalf of the person whose interests are affected by the decision.

(4)    A failure to comply with the requirements of subregulation (3) in relation to a decision shall not be taken to affect the validity of the decision.

(Original emphasis.)

55    Several matters should be noted about the cancellation power in reg 7C. First, it is conditioned on the satisfaction of the repository of the power, which carries with it the usual implications as to rationality and legal reasonableness: see Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 3; 289 FCR 21 at [21]-[27], citing, inter alia, Minister for Immigration and Multicultural Affairs v Eshetu [1999] HCA 21; 197 CLR 611 at 651 [131] (Gummow J). See also Minister for Immigration v SZMDS [2010] HCA 16; 240 CLR 611 at [130] (Crennan and Bell JJ). Second, that satisfaction must be formed on the basis of “reasonable grounds”. Third, there is no express exclusion of the rules of procedural fairness. To the contrary, there are notice provisions indicating the power is conditioned by an obligation to afford procedural fairness. Finally, an adverse exercise of power triggers a right of full merits review.

GROUNDS OF REVIEW

56    The grounds of review set out in the applicant’s originating application filed 16 May 2022 are as follows:

1.     The decision-maker failed to consider whether to exercise the discretion in reg 7C of the Regulations not to cancel the Applicant’s registration, or was otherwise legally unreasonable in that it lacked an evident and intelligible justification.

2.     The decision-maker denied the Applicant procedural fairness in failing to invite the Applicant to comment on an intention to cancel his registration, prior to the decision being made.

3.     The decision-maker misconstrued the word ‘parent’ in the Act and Regulations as if its meaning was confined to ‘biological parent’, instead of ‘parent’ at common law.

4.     The decision was invalid because reg 7C of the Regulations, being the power under which the decision was purportedly made, was inconsistent with the Act.

Particulars

The field of operation of the Act in relation to loss of citizenship was confined to those matters in Division 4 of the Act. A regulation such as reg 7C which purported to create a power enabling a decision-maker to cause loss of citizenship, being a regulation outside the field of operation marked out by Division 4, was inconsistent with the Act. The result is that any cancellation decision pursuant such regulation was invalid.

5.     The decision was invalid in that it failed to specify the grounds for the decision, specification of such grounds being a requirement for validity.

57    Where necessary, I deal with the parties’ arguments in my resolution of the grounds of review.

RESOLUTION

Extension of time

58    The decision under review was made in 2005. There are no time limits prescribed for relief sought under the Judiciary Act, contrary to where relief is sought under the ADJR Act. Rather, the Court has a discretion to refuse relief on the basis of a delay in applying for judicial review of the decision: see Jadwan Pty Ltd v Rae & Partners (A Firm) [2020] FCAFC 62; 278 FCR 1 at [503(6)]; McAtamney v Superannuation Complaints Tribunal [2016] FCA 1062 at [179]. A delay in applying for relief may give rise to prejudice in a number of ways.

59    Counsel for the applicant accepted that there was a very lengthy period between 12 October 2005 (when the cancellation decision was made) and May 2022 (when the applicant sought substantive relief in this Court).

60    The applicant relied on the following factors:

(a)    that he only received a complete copy of the cancellation decision on 2 May 2022, “despite years of attempts by him and his solicitors to seek clarification of his citizenship status which were stonewalled by the respondents”;

(b)    the merits in the grounds of review; and

(c)    no prejudice to the respondents by any extension of time, compared to the prejudice he would suffer if an extension were refused.

61    The focus of the applicant’s submissions with regard to an extension of time were on point (a) above. Counsel for the applicant submitted that there was a “complete absence” of any record of contact having been made with the applicant to notify of the cancellation decision. In relation to the notification letter sent to Mr L (see at [25], above), counsel for the applicant submitted that:

The first point I want to make is that there’s actually no evidence that the applicant was in fact on notice as at October 2005 of that letter. I know the Minister says at paragraph 14 of his submissions that there’s no doubt he has known, but there’s just no evidence that the applicant actually was on notice in 2005, and just to be clear so that it’s not going to be said against me that I’m somehow converting the onus of proof. What I’m pointing to is the complete absence of even a file note or any kind of record of that type in the Minister’s records saying, “I, Officer X, telephoned or emailed or whatever it was or explained to the applicant in October 2005 that the decision was cancelled”. So that’s the first - - -

HER HONOUR: What do you say the evidence does show in terms of how that decision was communicated?

MR GUO: The evidence shows that the decision was communicated to the father and that a solicitor for the father responded not long thereafter, but evidently did not understand that whatever the response was supposed to be in relation to.

62    Counsel submitted that the applicant was “at worst … confused” about the true state of affairs concerning his citizenship. Counsel pointed to:

(a)    the letter sent by the migration agent to the Department, referred to at [27] above, referring to the names of three children of Mr L, but that those names did not include the name of the applicant himself;

(b)    the applicant having been issued with, and traveling using, an Australian passport as being “inconsistent with … or at least difficult to reconcile with an absolute proposition that somehow the applicant must have known that he did not have Australian citizenship”; and

(c)    the applicant not having been detained after the interview referred to at [28] above:

… no detention follows this interview. So the applicant shows up to an interview, some questions are asked of him about his status, yet he’s not actually detained. There’s no suggestion he holds a visa at this stage either, so in his own mind, my submission is, he was, at worst, confused about the true status of his citizenship.

63    Counsel for the Minister submitted that, at least as of 2015, the applicant was not “confused as to any relevant matter”. In support of this position, counsel pointed to a response in the applicant’s application for a protection visa where he indicated, in response to a question asking whether he had ever been asked to leave from any country, that the Department “alleged that I was not the natural son of my father”. As a result, the Minister submits that the applicant “first became aware of and understood the decision” at least at the time he applied for a protection visa, on 16 June 2015.

64    The Minister submits that there is an “obvious prejudice” to the Minister if the extension of time is granted. The Minister submits that if the judicial review application succeeds, and the de-registration decision were remitted for reconsideration, then if the applicant alleges a non-biological parental relationship, given the applicant’s birth was in 1989, all relevant objective records and evidence from that period will be very difficult to obtain or verify.

Resolution of the extension of time

65    As I explain below, the grounds of review have merit. There was an arguable denial of procedural fairness. The invalidity ground, and the ground concerning the definition of “parent” also have merit. Given the length of the delay in bringing the judicial review application, in my opinion the merits of the arguments need to be somewhat stronger to justify exposing a decision which has stood for so long to judicial review. I have upheld several of the grounds of review. Short of some deliberate delay or vexatious conduct by the applicant, it is not easy to explain how it might have been in the interests of the administration of justice to deny an extension of time when the Court has found the exercise of public power to be invalid, at least not when that exercise of power has had such significant consequences for the applicant.

66    The subject matter of the application is the applicant’s citizenship. The loss of citizenship is a matter of particular gravity: see Alexander v Minister for Home Affairs [2022] HCA 19; 96 ALJR 560. In the plurality reasons at [74], citing Potter v Minahan [1908] HCA 63; 7 CLR 277 at 305 and Air Caledonie International v Commonwealth [1988] HCA 61; 165 CLR 462 at 469, Kiefel CJ, Keane and Gleeson JJ said:

For an Australian citizen, his or her citizenship is an assurance that, subject only to the operation of the criminal law administered by the courts, he or she is entitled to be at liberty in this country and to return to it as a safe haven in need.

67    I place considerable weight on the fact that this is a proceeding about the loss of the applicant’s citizenship, for the reasons set out in Alexander. Here, the loss of citizenship was not due to any conduct of the applicant, but rather, departmental opinions formed about the person he knew as his father. It was Mr L who was notified of the potential de-registration of the applicant’s citizenship, not the applicant.

68    On the other hand, the applicant could have given direct evidence about what he knew of the de-registration decision, and when he knew it. He elected not to. That election meant the Court was deprived of the most direct evidence to explain the delay in filing this application. While counsel made submissions about the applicant’s confusion, that state of mind needed to be inferred by the Court, whereas the applicant could have given direct evidence of it.

69    The Minister is correct that the content of the applicant’s protection visa application in 2015 clearly suggests the applicant was aware, in 2015, that he was not considered a citizen. The departmental records and emails from shortly before this time and the interview conducted with the applicant, all in 2014, demonstrate that the applicant understood at this time – whether or not he agreed with the position – that he was not considered to be an Australian citizen and he needed to be granted a visa to stay in Australia.

70    The evidence also reveals that the applicant has struggled, more than he should have needed to, to secure proper access to his own departmental files. The applicant’s first application in respect of his files was in November 2014. He had only arrived in Australia in November 2013, having been issued with an Australian passport in Nairobi in 2013, despite the 2005 cancellation decision. On any reasonable view, the earliest point in time at which he might have challenged the 2005 decision was when he was detained in October 2014. In my opinion, the need for a reasonable explanation for delay is from this point in time to May 2022, when the judicial review application was filed. That application was filed responsively to attempts to remove the applicant from Australia.

71    The evidence demonstrates that shortly after his detention, the applicant chose to lodge a protection visa application, and was given assistance to do so. That was the path he chose to regularise his status in Australia. His protection visa application was rejected in November 2017, and he did not seek review of that decision.

72    Once the protection visa process was finalised, the applicant’s bridging visa expired and he was once again detained, although not until June 2020. He did not at this point in time lodge any judicial review application. From shortly after this point, the applicant has been invited to undertake DNA testing to confirm whether his biological father is Mr L. That DNA testing has not occurred.

73    I have found the question of an extension of time to be finely balanced. I am satisfied the applicant could have applied much earlier, around 2014, for judicial review of the 2005 decision. Instead, he chose (perhaps on advice) to file a protection visa application. In doing so, he to some extent accepted he needed a visa, and accepted he was not regarded as an Australian citizen by the relevant Australian authorities, even if, giving him the benefit of the doubt, he did not fully understand why that was the case.

74    However, his judicial review application was only filed responsively to attempts to remove him from Australia. At one level, given the circumstances in which he was detained (at least from 2020) and the challenges of accessing lawyers and legal advice, that is readily understandable. Not without some hesitation, and mostly because the subject matter of the proceeding is the applicant’s citizenship, I consider it is appropriate in the interests of the administration of justice to grant an extension of time.

75    The Minister’s submissions on prejudice do not go so much to prejudice on the extension of time, in the sense of being unable to meet the judicial review application because of the delay. Rather, they go to the prejudice if the judicial review application succeeds. On the evidence before the Court I am not persuaded there is some gap in the records, or some substantive difficulty in the Department understanding the historical factual position. That position is quite clear, as my findings demonstrate. The consequences of setting the 2005 decision aside may no doubt present some challenges for both parties. That is not a sufficient basis for a court to refuse to supervise an exercise of public power that is not only arguably invalid, but which the Court has found to be invalid.

What was the basis for the purported exercise of power under reg 7C?

76    In the consideration of his grounds of review, the applicant contends that the only matters constituting reasons for the cancellation decision are the contents of the notification letter referred to at [25] above. Alternatively, he contends there is no record of reasons for the cancellation decision.

77    The Minister submitted that “the notification letter does not purport to be the decision-maker’s reasons and fact-finding”, but that rather:

There is no doubt that the movement records were the basis for the decision and formed a logical basis for that decision.

78    At hearing, counsel for the Minister stated that “we accept the letter does not have any reasons. We always accepted that”.

79    For the purposes of this judicial review, the text of the notification letter to Mr L must be taken as recording the outcome of a purported exercise of power under reg 7C, and to the limited extent it does, explaining the basis for that exercise of power. That does not mean the letter can or should be characterised as compliant with the obligation to give a statement of reasons, as required by reg 22. Nevertheless, it is a notification to Mr L (not the applicant) about the outcome of an exercise of power in respect of the applicant, and it does contain some explanation, albeit the briefest of explanations, about why the power was exercised as it was.

80    Other evidence before the Court, as I have extracted it above, explains why the 2005 cancellation decision was made, without what is on those records being in any way compliant with the obligation in reg 22. Nevertheless, as part of the Court’s fact-finding on judicial review, the Court can examine those departmental records and may derive as a matter of fact an explanation for the making of the exercise of power. There is no doubt on the evidence that the underlying factual basis for the cancellation comprised the movement records of Mr L. The deductive reasoning applied by departmental officers to the timing of his arrival in Australia in 1987 and departure from Australia in 1989 led to the departmental officer’s beliefs about whether Mr L could have been in the DRC when the applicant was conceived. Thus, there is also no doubt on the evidence that the departmental officers approached the issue of cancellation only from the perspective of considering whether Mr L was the applicant’s biological father.

81    My reasoning on the grounds of review is based on these findings about the explanation for the purported exercise of power under reg 7C.

Failure to consider whether to exercise discretion or legal unreasonableness (ground 1)

Misunderstanding of the law

82    The applicant submits that reg 7C(1) confers a discretionary power. The applicant submits that the terms of sub-reg (2) are the only express limits on, or preconditions to, the exercise of the discretion.

83    The applicant submits that the notification letter “does not contain any hint that the decision-maker understood he had a residual discretion to not cancel the registration despite the preconditions in reg 7C being met”. The applicant submits that this must be understood in the context of the requirement to provide reasons for the cancellation decision: see reg 22(1) extracted at [54] above and the requirement in s 25D of the Acts Interpretation Act 1901 (Cth):

25D    Content of statements of reasons for decisions

Where an Act requires a tribunal, body or person making a decision to give written reasons for the decision, whether the expression “reasons”, “grounds” or any other expression is used, the instrument giving the reasons shall also set out the findings on material questions of fact and refer to the evidence or other material on which those findings were based.

84    The absence in the letter of any “grounds” explaining the delegate understood the power was discretionary is said to suggest, as I understand the applicant’s argument, that the delegate did not understand the basis for the exercise of power was a discretionary one.

85    The Minister submits that a plain reading of reg 7C(2)(a) indicates that there is no discretion of the kind referred to by the applicant where the decision-maker is satisfied that the “registration has been made on the basis of false information” and could not be corrected by the true information. The Minister’s contention is that a discretion arises only where reg 7C(2)(b) applies, or where the false information is not material. On the Minister’s submission, any other construction would not be consistent with the classes of person to whom citizenship was to be conferred under the 1948 Act.

86    In the alternative, the Minister submits that in any case there was no basis upon which a discretion could have been exercised favourably for the applicant, “where the evidence indicated that the registration had been fraudulently obtained”.

Resolution: no misunderstanding

87    I do not accept the Minister’s construction of reg 7C. The provision uses discretionary language, and does so in contrast to the imperative language in reg 7C(2). Objectively, the power conferred is intended to be discretionary. The discretion arises if the preconditions in reg 7C(2) are met.

88    That said, I do not accept that the applicant has proven the decision-maker was unaware the power being exercised was discretionary. The cancellation letter quotes reg 7C. It also indicates a firm degree of satisfaction that the registration was obtained on the basis of false information. That is a reference to the precondition in reg 7C(2)(a). The false information was the assertion in the application form that Mr L was the applicant’s biological father. The departmental records to which I have referred at [21] and [77]-[79] above indicate what the factual basis for that satisfaction was.

89    While the repository of the power in reg 7C(1) had a choice whether or not to cancel the applicant’s citizenship registration, having been persuaded the registration occurred on the basis of false information, it is clear there were no obvious factors tending against cancellation available to the delegate at the time, especially in 2005 when the applicant was still only 16 years old, outside Australia, and where neither he nor Mr L had been given notice of the proposed cancellation and therefore had not provided any information. In those circumstances, the absence of any contrary considerations in the notification letter is unsurprising. The applicant bears the burden of proving on the balance of probabilities that the delegate was unaware of the discretionary nature of the power and I do not consider he has discharged that burden.

Legal unreasonableness

90    The applicant submits that if the notification letter amounts to the grounds or reasons for the cancellation decision, then the text of the letter as it stands establishes the adverse exercise of power in reg 7C was “entirely lacking in any evident and intelligible justification”. Referring to Minister for Immigration and Border Protection v Singh [2014] FCAFC 1; 231 FCR 437, the applicant contends it must be the reasoning of the delegate that is the focus of the assessment of legal unreasonableness. Here, the letter offers no justification for the exercise of the power, and does not even identify what the false information is.

91    Second, and in the alternative, the applicant submits that if the notification letter does not amount to grounds or reasons for the cancellation decision (quoting Singh at [45]):

the lack of any explanation directs “focus on the outcome of the exercise of the power in the factual context presented”.

92    The applicant contends the adverse exercise of power occurred in the factual context that departmental officers appeared to recognise no procedural fairness was going to be provided to the applicant. Some of the officers’ records express concern about this. Reliance is placed on a draft email by a departmental officer to the Assistant Secretary:

One option is that I cancel [two of the applicant’s siblings] and [the applicant’s] registration on the strength of the information we already have. It would be possible to do this without notifying the clients in advance, and would mean that we could reduce the possibility of [one of the applicant’s sibling]’s passport being used for travel to Australia. Do you think this course of action would withstand legal scrutiny? If not, can we be confident that the AAT would ask for DNA tests?

I have drafted a letter to [Mr L] telling him that I am considering cancelling the registrations on the grounds that he is not the natural father of either the remaining three or all six children, and asking for his response in writing. If he disputes my claim, I will offer the opportunity to undergo DNA testing. I have attached a draft letter for your comment. The text regarding DNA testing is from the MSI on DNA testing. The response time in these letters is the same as the provisions in the Migration Act for applicants who are offshore.

I propose to send the letters by registered post to the addresses that [Mr L] put on each of the applications as his own address - he's given a Melbourne street address on some applications, and a Melbourne PO Box address on others. I also intend to send copies of all of the letters (by registered post) to the children at the residential addresses in Africa as listed on their 118 forms so that they have an opportunity to defend themselves if [Mr L] does not. Is it correct to address the letters to [Mr L], given that he was not the applicant for registration?

The main difficulty in the notification process is that department knows that [Mr L] has been offshore since last year, and thus it is unlikely that he will respond to the letters that I send. Any review of a decision to cancel registrations in these circumstances is likely to find that the decision was legally flawed due to the absence of natural justice. There are not any provisions for deeming receipt of mail from the department in the Citizenship Act. Are you aware of any common law deeming provisions which may assist us?

93    As I understand it, the applicant contends that recognition of an absence of procedural fairness contributes to the legally unreasonable character of the exercise of power. The applicant also relies on the letter from Mr L’s lawyer in response to the cancellation notification, which I have referred to at [27] above. This is said to confirm the knowledge that the basis for the registration cancellation was not being articulated to those affected – either to Mr L, or to the applicant.

94    The applicant also relies on there being no evidence that DNA testing ever occurred, and that the cancellation occurred regardless of the absence of DNA tests, despite there being no apparent urgency for the cancellation decision which might have otherwise justified failing to offer such an option prior to cancellation.

95    The Minister contends that the evidence available from movement records indicates Mr L was not believed to be the applicant’s biological father, nor “any other relevant type of accepted parent at the applicant’s birth”. The Minister contends “[t]here is no doubt that is the basis of the delegate’s decision”.

96    The Minister relies SZMDS at [130] (Crennan and Bell JJ) and the authorities there referred to for the submission that the unreasonableness or irrationality said to affect an exercise of power must be “extreme”. He also relies on the summary given by the Full Court in Djokovic at [33]-[35], and particularly on the Full Court’s statement at [35] that:

Ultimately, the question is whether the satisfaction of the relevant state of affairs or matter was irrational, illogical or not based on findings or inferences of fact supported by logical grounds: Minister for Immigration and Multicultural and Indigenous Affairs v SGLB [2004] HCA 32; 207 ALR 12 at 20–21 [38]; Re Minister for Immigration and Multicultural Affairs; Ex Parte Applicant S20/2002 [2003] HCA 30; 198 ALR 59 at 71 [52] and 98 [173], such that it cannot be said to be possible for the conclusion to be made or the satisfaction reached logically or rationally on the available material. It will then satisfy the characterisation of unjust, arbitrary or capricious.

97    In an implicit concession of non-compliance with reg 22(1), the Minister contends the notification letter does not purport to be the decision-maker’s reasons and fact-finding. The factual basis lay, the Minister appeared to contend, in the departmental records. The Minister submitted the task of the decision-maker was to decide if there had been false information provided as the basis for the citizenship application, which could not otherwise be corrected. He submitted there was “no doubt” that Mr L’s movement records were the basis for the conclusion about false information, and constituted a logical basis for that conclusion.

Resolution: legal unreasonableness

98    Reg 22(1) required the delegate to provide “grounds” for the cancellation decision. While the letter referred to the the provision of false information, it did no more than refer to the existence of the precondition in reg 7C(2)(a); it did not explain the grounds. It is clear no adequate grounds were provided, given the “false information” was not even identified in the letter. There was non-compliance with reg 22(1). As I explain below, there was further non-compliance with reg 22(1) because the person whose interests were affected by the decision was not Mr L, but the applicant, and he was given no notice of the decision. However, non-compliance with reg 22(1) is not a ground of review. Such non-compliance might in some circumstances be a factor pointing to legal unreasonableness, but here the non-compliance goes more to the denial of procedural fairness which I discuss below.

99    I am satisfied that in the particular circumstances of this case, especially given the decision was made almost 20 years ago, the departmental records can be taken into account in assessing legal unreasonableness. The applicant sought to rely on them for various forensic purposes and they were generally admissible. In the sense identified in Singh at [45], the departmental records form part of the factual context for the exercise of power. On their face they provide an intelligible justification for the exercise of power under reg 7C(1). The records demonstrate that the comparison between Mr L’s movement records and the calculated time of conception for the applicant were the basis for the cancellation decision. There was nothing to suggest the movement records were inaccurate. There was nothing to suggest the applicant’s date of birth was incorrect, in the sense that his date of birth had been provided by Mr L on the citizenship application form. There is nothing at all in the departmental records to suggest any other basis for the registration cancellation. The records suggest that the departmental officers dealing with Mr L’s series of citizenship applications on behalf of a number of people he identified as his children were sceptical of his claims to have so many biological children, in the circumstances he claimed to have them. The existence of other citizenship applications thought to be based on false information suggests there was no random or illogical approach taken to the exercise of the reg 7C power in respect of the applicant’s citizenship. It was a considered decision, after the formation of views based on the comparison to which I have referred. Whether or not reasonable minds might differ on whether that was sufficient for the purposes of reg 7C (see Crennan and Bell JJ in SZMDS at [131]), the question for this ground is whether no reasonable departmental officer could have exercised the power in the circumstances this officer did, on the basis of the information available. That question must be answered against the applicant.

100    In terms, ground 1 fails. It might be said that an accumulation of legal errors – denial of procedural fairness, failure to comply with reg 22(1) and a misunderstanding or misconstruction of the correct meaning of “parent” in s 10B – should be seen as, cumulatively, rendering the exercise of power legally unreasonable. In other words, the outcome was “so overwhelmingly wrong” that it must be characterised as unlawful: Djokovic at [31]. I accept an analysis of that kind might be available. This was not how the applicant’s legal unreasonableness argument was framed, and so I say no more about it, other than to recognise it as an alternate available analysis, which would – at least – confirm that it is appropriate to set aside the exercise of power under reg 7C.

Procedural fairness (ground 2)

101    The applicant submits that he was not afforded any procedural fairness, in the sense described in Kioa v West [1985] HCA 81; 159 CLR 550. He contends whether or not he was a minor at the time of the decision is irrelevant.

102    The Minister submits that notification of Mr L was sufficient in the circumstances:

(a)    there is no evidence that Mr L was not notified of the cancellation decision or was relevantly unaware of the decision, and the Minister points to the applicant “appear[ing] to have made a strategic decision [to] not call any evidence from his alleged father”; and

(b)    there is no evidence that failing to inform the applicant of the proposed decision in 2005 gave rise to any practical injustice: citing Re Minister for Immigration and Multicultural Affairs; Ex parte Lam [2003] HCA 6; 214 CLR 1. The Minister submits that there is no evidence that the applicant was in fact able to be found and notified in 2005 of the decision, as he was at the relevant time “not living with his family but had run away from home at the age of 7 and was living in Ghana”.

103    In response on this latter point, counsel for the applicant submitted that (transcript at p 32, l 41 – p 33, l 8):

Now, even if I’m wrong about that the Minister then goes on to say – well, this is at his paragraph 31 – the applicant ran away from home and he springboards from that to the submission that there’s no evidence the applicant would have been able to have been found in the counterfactual. He says that in paragraph 31. The problem with that submission is that it’s just wrong on the facts. It’s an overreach on the facts. There’s nothing before your Honour in the material which shows that there’s some kind of estrangement between the father and the son. There’s no evidence to show that if the father had been contacted about the son – and I’m talking about the father here because the Minister says, you know, well, he has run away from, no evidence he can be found, that’s why ..... there’s just not evidence of that kind of estrangement at the relevant time or at all for that matter. The highest it goes is there’s a passage in the material which says the applicant lived somewhere else in a different country but you can’t springboard from that conclusion – from that fact to say, “Well, if the father got the message, the father would not have made any attempt to try to pass it on.”

104    Counsel for the applicant also pointed to departmental records as indicating that the Minister did actually have an overseas postal address for the applicant.

Resolution: ground 2

105    There are at least two kinds of denials of procedural fairness in play on the facts of this case. First, a denial of procedural fairness before the exercise of the reg 7C power. Second, a denial of procedural fairness in the failure to notify the applicant about his merits review rights.

106    Properly, there was no contention on behalf of the Minister that a power such as that in reg 7C was not conditioned by an obligation to afford procedural fairness to a person affected by the exercise of power. It is clear that the power is so conditioned: it is a power to remove from a person the valuable right of citizenship. The fundamental value of citizenship was emphasised in Alexander at [74]:

For an Australian citizen, his or her citizenship is an assurance that, subject only to the operation of the criminal law administered by the courts, he or she is entitled to be at liberty in this country and to return to it as a safe haven in need. These entitlements are not matters of private concern; they are matters of public rights of “fundamental importance” to the relationship between the individual and the Commonwealth. In South Australia v Totani, Crennan and Bell JJ said:

In harmony with the Constitution, conclusions about whether legislation conflicts with constitutional requirements, which turn on the nature of judicial power, or its usurpation, or which are directed to the effect of legislation on the institutional integrity of a court, commonly subsume consideration of the effect of the legislation on personal liberty.

(Footnotes omitted.)

107    Further, the Minister accepted, as the Minister must in the circumstances, that reg 22 expressly required notification to a person affected of their merits review rights.

108    I accept the applicant’s submission that it is the applicant who was the person affected by the exercise of power in reg 7C. Although Mr L had applied for the conferral of citizenship for the applicant, the benefit of the conferral of citizenship flowed to the applicant. It was the applicant who acquired legal rights as an Australian citizen: see Alexander at [31] for a description of some of those rights. Mr L may also have been a person affected by the exercise of the reg 7C power – as the applicant on behalf of his son. What may or may not flow from that proposition is not in issue in this proceeding. The fact the applicant was a minor was not relevant to the existence of the obligation of procedural fairness. Minority might affect how an obligation of procedural fairness is discharged in a given circumstance. It might affect, for example, how and where communications are sent. There could well be circumstances where affording a parent an opportunity to be heard, on behalf of a child, might be sufficient. The issue is whether this is one of those circumstances. The parties did not refer the Court to any authorities on this point and there are no obvious authorities dealing with the question. However, reasoning from first principles I consider affording Mr L, as the putative parent, an oppportunity to be heard prior to the exercise of power could have been sufficient.

109    Mr L was the person who applied for citizenship on behalf of the applicant. On the application form, Mr L gave the applicant’s current residential address as a location in the DRC. He gave the postal address for the person to be registered (the applicant) as a post office box in Melbourne. I infer that was a postal box used by Mr L. Mr L inserted a phone number for his contact details, which was a Melbourne phone number. The postal address recorded on ICSE as the applicant’s postal address was the Melbourne postal box address. The phone number recorded on ICSE was Mr L’s Melbourne phone number. That is all as one might expect for a “responsible parent” applying for citizenship for a child who resides overseas.

110    In the circumstances, I am prepared to find that the obligation of procedural fairness towards the applicant could have been discharged by giving Mr L a reasonable opportunity to be heard about whether the applicant’s citizenship registration occurred because of the provision of false information by Mr L. In the circumstances of an application on behalf of a minor by a person purporting to be a “responsible parent” within the meaning of the Regulations, it would have been an appropriate discharge of the obligation to contact Mr L, prior to the cancellation, and give him, as the person who applied for citizenship on behalf of the applicant, a reasonable opportunity to be heard, on behalf of the applicant. That is especially so where it is obvious that it was Mr L who the departmental officers believed had provided the false information, not the applicant. I do not consider, in these circumstances, the only way to discharge the obligation of procedural fairness would have been to communicate directly with the applicant in the DRC.

111    That is not what occurred. The power in reg 7C was exercised, and then after its exercise, Mr L was notified. Even that notification was wholly non-compliant with the Regulations. No grounds were stated for the decision. There was no notice given to Mr L of any right of review in the AAT, contrary to reg 22. That remained the case even when a lawyer contacted the delegate on behalf of Mr L, more or less still within time to apply for merits review in the AAT. Whether or not the applicant could be found at the time of the cancellation in 2005, as the Minister submitted was unlikely to be feasible because of the applicant’s claims in his protection visa application, is beside the point. The knowledge of the facts relevant to the exercise of power lay with Mr L: he had made the citizenship application on behalf of the applicant, he had provided the documentary material in support of the application, and it was he who asserted he was the responsible parent of the applicant. For the opportunity to be heard to be meaningful in terms of the applicant’s citizenship registration, the responsible parent who provided the allegedly false information was the person whom the Department needed to contact. But that is, as I say, primarily in discharge of the procedural fairness obligation to the applicant as the person who secured the benefit of Australian citizenship, even if there might be a differently described procedural fairness obligation to the applying parent (which I do not decide).

112    The basis for the cancellation was one which could have been dispelled by an explanation from Mr L. Alternatively, it might have been the case that Mr L was not the applicant’s biological father but was his cultural or social father. Information about that might have been enough to persuade the delegate not to exercise the discretion to cancel the citizenship registration. There was clearly a possibility of a different outcome: see Stead v State Government Insurance Commission [1986] HCA 54; 161 CLR 141 at 147 [16]. Further, the denial of procedural fairness was compounded by the failure to inform Mr L of the applicant’s rights to merits review.

113    This is a straightforward case of denial of procedural fairness, and ground 2 must be upheld. The denial was compounded, or added to, by the failure to provide the applicant, through Mr L, with notice of his merits review rights and notice of the grounds for the decision. That is a separate and independent denial of procedural fairness to the applicant.

Construction of the term ‘parent’ (ground 3)

114    The applicant submits that the evidence, in particular the record extracted at [92] above and the file note extracted at [24] above, indicates that the theory of the departmental officers that motivated the cancellation decision was that Mr L was not the applicant’s biological father. The only focus of the departmental officers was on whether Mr L could have been in the DRC when the applicant was conceived.

115    The applicant does not accept that he is not the biological son of Mr L. However, even if it were assumed he is not, the applicant submits that this does not foreclose the possibility that Mr L may have had a non-biological parent role, whether factually, socially or culturally.

116    The applicant submits that the term ‘parent’ is not limited to a biological parent at common law, citing Masson v Parsons [2019] HCA 21; 266 CLR 554 at [29] (Kiefel CJ, Bell, Gageler, Keane, Nettle and Gordon JJ). In that case the plurality said (at [29]):

In re G (Children), Baroness Hale of Richmond observed in relation to comparable English legislation that, according to English contemporary conceptions of parenthood, “[t]here are at least three ways in which a person may be or become a natural parent of a child” depending on the circumstances of the particular case: genetically, gestationally and psychologically. That may also be true of the ordinary, accepted English meaning of “parent” in this country, although it is unnecessary to reach a concluded view on that issue. The significance of her Ladyship’s analysis for present purposes, however, is that, just as the question of parentage under the legislation with which she was concerned was one of fact and degree to be determined by applying contemporary conceptions of parenthood to the relevant circumstances, the question of whether a person qualifies under the Family Law Act as a parent according to the ordinary, accepted English meaning of “parent” is a question of fact and degree to be determined according to the ordinary, contemporary Australian understanding of “parent” and the relevant circumstances of the case at hand. The primary judge and the Full Court were correct so to hold.

(Citations omitted.)

117    I note that the UK decision of Re G (Children) [2006] UKHL 43; 4 All ER 241 concerned the term “natural parent”, which is also a term used in the regulations.

118    The applicant also points to the same observation having been made directly in the context of Australian citizenship legislation, citing H v Minister for Immigration and Citizenship [2010] FCAFC 119; 188 FCR 393 at [48]; Chou v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 130; 286 FCR 459 at [94]-[96] (Griffiths and Abraham JJ).

119    The applicant contends that it is apparent that neither the decision-maker nor anyone in the Department considered the possibility of non-biological parentage, and that had they done so, it would have been clear that further investigations and enquiries would have needed to occur.

120    The Minister did not make express submissions against the proposition that the term “parent” in the regulations should properly be construed as extending to non-biological parents. Indeed, in the face of two Full Court decisions, albeit about the Citizenship Act 2007 but nevertheless, at least in the case of H, about the concept of citizenship by descent, it may have been an ambitious submission.

121    Rather, the Minister submits that this ground does not arise on the facts of the case, because there was no evidence that Mr L had assumed any well understood non-biological parenting role in relation to the applicant. The Minister submits:

there was no evidence that [Mr L] was married to, or in any ongoing relationship with, the applicant’s mother and there was no evidence of any other parental style support of the applicant at his birth (noting that if [Mr L] was in the Congo at the time of the applicant’s birth he then returned to Australia very shortly thereafter on 26 October 1989) and there is no evidence of support after the applicant’s birth (noting the alleged father spent most of his time in Australia between 26 October 1989 and 2007).

(Original emphasis.)

122    On this point, counsel for the applicant submitted that:

You heard a lot from Ms Francois about what should be drawn from the evidence in relation to the existence or non-existence of a relationship between the applicant and his father. The – and for that matter, the mother. The complete answer to that is those submissions wrongly focus on a period of life well after the birth of the applicant and it’s the language at the time of birth in section 10B which matters. So let’s just assume that they were completely separated, had no desire to contact each other, not even in relation to a grave matter of cancellation of citizenship. Let’s just say that that’s the case. It’s still a wrong analysis. The question for non-biological parentage is at the time of birth, not years down the track.

123    In supplementary written submissions filed after the hearing in the proceeding, counsel for the applicant responded to the Minister’s supplementary submissions that Mr L “was back in Australia 16 days after [the applicant’s] birth”):

The proposition that the Applicant’s father was “back in Australia 16 days after” the Applicant’s birth is a colourable attempt to intrude on the merits of the matter in a straight-up judicial review application, and which in any event is based on a persistent misreading of s 10B which directs attention to the time of birth, not some state of affairs “16 days after”.

(Footnotes omitted.)

Resolution

124    The applicant is correct that the basis for the registration cancellation was that the delegate was satisfied Mr L was not the applicant’s biological father. In other words, I accept that the delegate construed the word “parent” in the regulations as meaning no more than biological parent. The references to DNA tests in the departmental records from the time confirm this.

125    In Chou, the Full Court was concerned with the Births, Deaths and Marriages Registration Act 1995 (NSW). However, the passages at [94]-[96] contain, with respect, a useful summary of the general principles:

First, the AAT erred in finding that the meaning of “parent” in s 15 of the BDMR Act was confined to “biological parent”. The meaning of “parent” is obviously critical to any consideration of whether a person breached s 57 of the BDMR Act. The Minister conceded before the primary judge that the AAT’s assumption that the meaning of “parent” in the BDMR Act was limited to “biological parent” was incorrect. However, as discussed below, the Minister on appeal seeks to advance that in the circumstances of this case, Mr Benavides was not Sebastian’s “parent” at law at the time of the registration of his birth.

The concept of “parent” is undefined in the BDMR Act. As decisions both in Australia and the United Kingdom demonstrate, statutory definitions of the term “parent” are not ordinarily limited to a biological parent (Masson v Parsons (2019) 266 CLR 554 (Masson) at [29] per Kiefel CJ, Bell, Gageler, Keane, Nettle and Gordon JJ; H v Minister for Immigration and Citizenship (2010) 188 FCR 393 (H v Minister) at [47]-[49] per Moore, Kenny and Tracey JJ; Re G (Children) [2006] 1 WLR 2305; [2006] 4 All ER 241 (Re G (Children)) at [33]-[37] per Hale LJ). Referring to Baroness Hale of Richmond’s observations Re G (Children), the plurality in Masson stated at [29] as to the meaning of “parent” under Div 2 of Pt VII of the Family Law Act 1975 (Cth):

… according to English contemporary conceptions of parenthood, “[t]here are at least three ways in which a person may be or become a natural parent of a child” depending on the circumstances of the particular case: genetically, gestationally and psychologically. That may also be true of the ordinary, accepted English meaning of “parent” in this country, although it is unnecessary to reach a concluded view on that issue. The significance of her Ladyship’s analysis for present purposes, however, is that, just as the question of parentage under the legislation with which she was concerned was one of fact and degree to be determined by applying contemporary conceptions of parenthood to the relevant circumstances, the question of whether a person qualifies under the Family Law Act as a parent according to the ordinary, accepted English meaning of “parent” is a question of fact and degree to be determined according to the ordinary, contemporary Australian understanding of “parent” and the relevant circumstances of the case at hand. The primary judge and the Full Court were correct so to hold.

Similar remarks were made by the Full Court in H v Minister, which concerned two appeals which raised the issue of whether “parent” in s 16(2) of the Australian Citizenship Act 2007 (Cth) was confined to “biological parent”. As to the ordinary meaning of the word “parent”, the Full Court remarked at [48]:

While often a person’s parents will in fact be biological parents, ordinary usage does not limit the meaning of parent in this way. Rather, the word “parent” is used today to signify a social relationship to another person. Whether or not this has always been the case, this usage reflects a widespread contemporary awareness of families that include non-biological parent-child relationships.

126    There is no basis to construe the 1948 Act and the regulations any differently. Indeed the definition of “responsible parent” in s 5(2) extends to persons who have a residence order in relation to, or custody or guardianship of a child “whether or not a parent of the child”. Section 10 (relating to children born in Australia) and s 10B (relating to children born outside Australia) both use the term “parent”, rather than “natural parent”, despite what is on the form filled out by Mr L. By s 10A, a person who was adopted by an Australian citizen could obtain Australian citizenship.

127    Further, the applicant is correct that the time for the assessment of whether a person is a “parent” is the time of birth. As the authorities indicate, parental roles may be socially and culturally wide and varied.

128    The delegate, and the investigation and information on which the delegate based his decision, focused only on whether Mr L was the biological father of the applicant. That was an incorrect construction, for the reasons given.

129    The Minister’s responses to this ground are not persuasive. They proceeded on a number of assumptions which were not even rational. The fact that a person may leave a child and the child’s mother to return to another country a little over two weeks after a child’s birth may, or may not, say anything about whether that person is a “parent”. A myriad of circumstances might contribute to the person needing to leave, none of which may carry the imputation that it is because the person does not have a parental role for the child. Further, the Minister’s dismissal of the possibility that Mr L provided any “support” to the applicant’s mother also carries the same irrational assumptions. A person can “support” a child, and the biological mother of a child, financially, socially, culturally and emotionally without being physically present. People from many developing nations around the world who must go overseas to seek work do precisely this. These observations illustrate why there was no necessary or obvious answer to the question of whether Mr L was a “parent” of the applicant. However, these matters were not considered because of the construction adopted by the delegate.

130    Having failed correctly to understand the meaning of “parent” in s 10B, the delegate focused on Mr L’s information being “false” because other information suggested he could not be the applicant’s biological father. Even if that were the case, this would not render any of the information on the citizenship application form necessarily false, since Mr L identified himself as the applicant’s parent. He provided a birth certificate for the applicant which recorded him as the father. It did not say biological father.

131    Ground 3 succeeds.

Invalidity (grounds 4 and 5)

Ground 4: reg 7C was invalid

132    This ground is advanced in the alternative to all the other grounds. That is because if it succeeds, the exercise of power under reg 7C was wholly invalid. My consideration of the other grounds proceeds therefore on the basis, contrary to my findings on ground 4, that reg 7C is valid.

133    The applicant submits that regulations cannot rise higher than their source, must be authorised by their cognate legislation and must not be inconsistent with it. The applicant relies on Friends of Leadbeater’s Possum Inc v VicForests (No 4) [2020] FCA 704 at [704] and Shrimpton v Commonwealth [1945] HCA 4; 69 CLR 613 at 629-30 (Dixon J) for this proposition.

134    The applicant submits reg 7C is inconsistent with s 53 of the 1948 Act. Section 53 is extracted at [52], above.

135    The applicant also relies on Plaintiff M47/2012 v Director-General of Security [2012] HCA 46; 251 CLR 1 at [174] (Hayne J), submitting that in that case:

it was observed that the “common form of regulation making power [–] to make regulations ‘not inconsistent with this Act’” [–] can be described by the constitutional metaphor of “covering the field”, but the test for inconsistency is more broadly stated as “whether the regulation in question varies or departs from (in other words alters, impairs or detracts from) the provisions of the Act”, referring to Morton v Union Steamship Co of New Zealand Ltd (1951) 83 CLR 402.

(Emphasis omitted.)

136    The applicant submits the 1948 Act provided “an entire regime” for loss of citizenship in Div 4, including loss by renunciation, service in foreign armed forces, and conviction of offences including certain types of fraud offences. It provided also for resumption of citizenship. The applicant submits that nothing in Div 4 contemplated augmentation of the circumstances for cancellation by regulation, and that:

In other words, reg 7C went “outside the field of operation which the Act [in Division 4] marks out for itself”; it purported to “[alter] … the provisions of the Act”: cf Morton.

137    The applicant also submits that:

(a)    reg 7C does not fall within sub-s 53(b) because (citing Australian Securities and Investments Commission v Citrofresh International Ltd [2007] FCA 1873; 164 FCR 333 at [66]-[70]) the context includes the field-covering nature of Div 4; and

(b)    the language of reg 7C is “awkward” in that it begins with “[f]or section 10B”, but nothing in the text of s 10B contemplates any regulation to be made “for” it, and as a consequence nothing in s 10B contemplates the making of regulations so as to engage the chapeau to s 53.

138    The Minister’s submissions on ground 4 were limited. Counsel contended that reg 7C deals with cancellation of registration of citizenship. She sought to make a distinction between registration of citizenship, and subsequent cancellation of that registration on the one hand, and loss of citizenship by the mechanisms set out in Div 4 of the 1948 Act on the other. It was unclear to me what this distinction was said to be, given that the Minister’s case always has been that the cancellation of registration was what rendered the applicant an unlawful non-citizen and authorised his detention under the Migration Act 1958 (Cth).

Resolution

139    The 1948 Act provided for individuals to be recognised as holding Australian citizenship in a number of different ways. First (at the time it was in force), by birth in Australia, subject to some qualifications effective after the 1986 amendment act (s 10). Section 10(1) is declaratory: a person is an Australian citizen by force of that section, and subject to the operation of sub-ss (2), (3) and (5).

140    Second, by adoption: s 10A. Section 10A is also declaratory. Third, by descent: ss 10B and 10C. Section 10B is declaratory. Therefore, the 1948 Act provided three declaratory pathways to acquiring Australian citizenship by operation of the provisions of the Act itself.

141    Section 10C is not declaratory. It relates to citizenship by descent for persons outside Australia aged over 18 years on 15 January 1992, and who had a “natural parent” who was an Australian citizen, but who had not secured their citizenship through s 10B or s 11. As s 10C(5)(c) makes clear, one purpose of this additional safety net provision was to account for people who did not realise there was a registration requirement for the 1948 Act’s provisions to confer citizenship by descent. Section 10C requires an application process and a decision by the responsible Minister to register a person as an Australian citizen. That registration must be “in the prescribed manner”: s 10C(4). Section 11 is also not declaratory, but provides an application process, and a duty imposed on the Minister to register a person if the Minister is satisfied of the criteria in s 11(3). However, like s 10C, it has registration requirements, which contemplate that registration will be undertaken “in the prescribed manner”.

142    Finally, Div 2 of the 1948 Act concerns the conferral of Australian citizenship: see especially s 13. That is a discretionary power, available after the satisfaction of certain criteria. The conferral occurs by the Minister granting “a certificate of Australian citizenship to a person”, but that does not by itself render a person an Australian citizen by conferral. Section 15(1) then provides:

A person to whom a certificate of Australian citizenship has been granted under this Division (other than subsection 13(9B) or (9E)) shall be an Australian citizen:

…

on and after the day on which the certificate is granted or on which the person makes such a pledge of commitment, whichever last occurs …

143    Thus, the mechanism for acquiring Australian citizenship by conferral is quite different.

144    In contrast, citizenship by descent occurs by operation of the 1948 Act itself. For s 10B, that operation commences upon registration at an “Australian consulate”. By s 5, this is defined as

(a)    the office of a diplomatic or consular officer of the Australian Government;

(b)    an office in a country in which there is no office of a kind referred to in paragraph (a), being an office approved by the Minister; or

(c)    an office of the Department, whether the office is situated in or outside Australia.

145    In other words, an ordinary immigration departmental office in Australia was an ‘Australian consulate’ for the purposes of citizenship registration under the 1948 Act. That was the place at which Mr L registered the applicant. There was no dispute on behalf of the Minister about this being in fact and law the way the registration provision was intended to operate.

146    The loss of citizenship provisions in s 19 of the 1948 Act (“Loss of citizenship by reason of service in armed forces of an enemy country”) apply to all Australian citizens. These are the kinds of provisions which focus on conduct that can constitute a renunciation of allegiance to Australia, sufficient to authorise deprivation or loss of citizenship: see Alexander at [35], [42], [62]-[63] (Kiefel CJ, Keane and Gleeson JJ), [98] (Gageler J), [139] (Gordon J), [229] (Edelman J).

147    However, s 21 (“Deprivation of citizenship”) only applies to those who have been given a certificate of citizenship – that is, citizenship by conferral under Div 2 of Pt III of the 1948 Act. Otherwise, the 1948 Act does not provide for loss or deprivation of citizenship.

148    Section 53 of the 1948 Act is in a familiar form in terms of a regulation-making power. The list in s 53 is inclusive but not exhaustive. Clearly s 53(b) authorises regulations to provide for applications for registration, and processes around registration. As I have noted above, several of the pathways set out in Div 1 of Pt III of the 1948 Act, including relevantly s 10B, have a registration requirement.

149    None of the inclusive regulation-making powers in s 53 extend expressly to authorising deprivation of citizenship by regulation.

150    Deprivation or loss of citizenship, where citizenship has been acquired by operation of the 1948 Act is not a matter which is “required or permitted to be prescribed” for the purposes of s 53. Nor is it a matter which is “necessary or convenient” for carrying out or giving effect to the 1948 Act. That is because, aside from s 19, the 1948 Act is silent about how a person who becomes an Australian citizen by operation of the 1948 Act (other than by conferral under Div 2) might lose that status.

151    Reg 7C is therefore not authorised by s 53. It is outside the regulation-making power, properly construed. It is also inconsistent with the 1948 Act, in the sense explained in Plaintiff M47, because it “varies or departs from (in other words alters, impairs or detracts from)” the provisions of the 1948 Act. It varies those provisions because it provides a new and independent basis upon which a person might lose their status as an Australian citizen, which was granted by operation of the 1948 Act and not by discretionary conferral. It departs from the provisions of the 1948 Act for the same reasons. As the High Court’s decision in Alexander illustrates, there are limits around the circumstances in which a person may lose or be deprived of their Australian citizenship. Not all of those limits have yet been articulated in the present state of the authorities. However, the underlying premise for the care that is taken in articulating and determining those limits is expressed in the plurality’s reasons at [73]:

Today, the fundamental value accorded to the liberty of the individual provides the rationale for the strict insistence in the authorities that the liberty of the individual may be forfeited for misconduct by that person only in accordance with the safeguards against injustice that accompany the exercise of the judicial power of the Commonwealth. The case for the strict insistence on these safeguards is, if anything, stronger where the penalty for misconduct involves not only a loss of liberty within the community, but the loss of all entitlement to be both within the community and at liberty.

(Footnotes omitted.)

152    It may well be the case, as Gordon J observes in Alexander at [138]-[144], that s 51(xix) of the Constitution may support exercises of legislative power providing for denaturalisation (or loss of citizenship) in certain circumstances. As her Honour explains, those circumstances have limits, not all of which have been worked through in the authorities. Her Honour gives one example of where s 51(xix) may authorise a law depriving a naturalised citizen of that status (at [141]):

If a person breaches a condition validly imposed upon the grant of membership of the community, then, absent some other reason, it would be open to Parliament to make a law permitting withdrawal of that person’s membership of the community for breach of the condition.

(Footnotes omitted.)

153    At [174], Gordon J expands on the examples in a way relevant to the validity of reg 7C:

By way of example, in respect of a law conferring power on the Minister to cancel a person’s citizenship if they obtained citizenship by making false statements or engaging in fraudulent conduct, denaturalisation might be more properly characterised as the consequence of breaching a condition imposed on the person’s entry into the community, rather than punishment.

(Footnotes omitted.)

154    Thus, it may not have been beyond the legislative power of the Commonwealth Parliament to enact in the 1948 Act a provision with the same character as reg 7C. It did not do so. There is nothing in the 1948 Act which suggests Parliament intended to leave it to the executive, by regulation, to expand the circumstances in which a person could be deprived of citizenship beyond those for which it had expressly provided. Indeed, whether or not s 51(xix) would authorise such a delegation to the executive is another question. That question need not be answered in this case.

155    Ground 4 succeeds. Reg 7C is invalid.

Ground 5: grounds were required but not identified

156    As I explained, the applicant contends that the notification letter was non-compliant with reg 22 in two respects. First, it did not contain any statement of the grounds for the cancellation, and second, it did not advise the applicant (or Mr L) of his rights of merits review. The applicant submits that the non-compliance with reg 22:

(a)    means the cancellation decision is invalid in that it is affected by an error of law; and

(b)    amounts to a jurisdictional error because it was material to the decision-maker’s lawful exercise of power.

157    At hearing, counsel for the Minister conceded that “we accept the decision did not comply with the requirement to give reasons”. On that basis, counsel for the Minister submitted that the Minister’s only contention on ground 5 is that, if the ground were the only ground to be successful, the Court should withhold relief because the applicant well understood the basis for the cancellation of the registration of his citizenship, and neither he nor Mr L took any timely steps to address that decision.

Resolution

158    Putting to one side my conclusions on the validity of reg 7C, I accept that non-compliance with two requirements of reg 22 constitutes an error of law under s 5(1)(f) of the ADJR Act, and entitles the applicant to relief under s 16 of the ADJR Act setting aside the cancellation decision. The error need not be characterised as “jurisdictional” for this relief to be available: see my decision in G v Minister for Immigration and Border Protection [2018] FCA 1229; 266 FCR 511 at [135] (overturned on other grounds), and Federal Commissioner of Taxation v Futuris Corp Ltd [2008] HCA 32; 237 CLR 146 at [46] (Gummow, Hayne, Heydon and Crennan JJ).

159    As I have explained above, it would have been a legitimate course for the Department to take to give prior notice of the cancellation to Mr L, in his capacity as the applicant’s Australian citizen parent who who applied for the applicant’s citizenship, in circumstances where the applicant was still a minor living outside Australia. I have explained above that there was no opportunity to be heard prior to the cancellation, and this was a denial of procedural fairness to the applicant. After the exercise of power under reg 7C, there is no doubt that the errors in notifying Mr L that the applicant had rights of merits review, and in failing to explain the grounds for the decision so that the rights of merits review could be meaningful, were errors that deprived the applicant of the possibility of a successful outcome on the merits review. The letter from a lawyer retained by Mr L, within a month of being notified of the cancellation decision, is sufficient evidence that, had he been notified that the applicant had rights of merits review, it is more likely than not that Mr L would have exercised those rights on behalf of the applicant.

160    Ground 5 succeeds.

Effect of setting aside the cancellation decision made on 12 October 2005

161    In his originating application, the applicant had sought, amongst other orders, an order releasing him from immigration detention “forthwith”. At hearing, and after some discussions during oral argument, the Court granted leave for the parties to file further submissions on whether, if the cancellation decision made on 12 October 2005 were set aside by the Court, the applicant could be lawfully detained under s 189 of the Migration Act. The parties each filed further submissions following the hearing.

162    At the outset, in terms of the continuing relevance of the registration under s 10B of the 1948 Act, s 4 of the Citizenship Act 2007 provides:

(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.

(Original emphasis.)

163    In other words, the 1948 Act, in the form in force when Mr L applied for citizenship for the applicant and the applicant was registered as an Australian citizen, has continuing application to the citizenship status of the applicant.

Interpretation of s 10B

164    The position taken by the Minister is that, even if the cancellation decision were set aside, the applicant remains an unlawful non-citizen. That position is based on a construction of s 10B of the 1948 Act, which proposes that s 10B operates to render a person an Australian citizen only where:

two facts are both present with respect to a “relevant person”:

(a)     first, there has been a registration of the relevant person’s name in accordance with section 10B(1)(a); and

(b)     second, at least one parent of the relevant person was a “parent” at the time of that person’s birth and an Australian citizen in accordance with section 10B(1)(b).

If both those facts are present, then the relevant person has “acquired Australian citizenship” under section 10B: see section 10B(1)(a). There is no time for decision in relation to these matters; both facts have to be present for the section to operate.

(Original emphasis.)

165    The Minister submits that this is in contrast to registration under s 10C or s 11, under which, the Minister contends, a person is an Australian citizen by the “fact” of registration itself.

166    The applicant contends the Minister’s construction of s 10B establishes two classes of citizen – one class, like the applicant, who enjoy an inferior type of citizenship, because at any time their status is susceptible to being challenged (and they are susceptible to mandatory detention) if a departmental officer forms an adverse view about who is, or is not, their “parent”. Counsel referred to a number of authorities to support the proposition that all Australian citizens enjoy “full and formal membership of the community of the Commonwealth” (Minister for Home Affairs v Lee [2021] FCAFC 89 at [81]), and no category of citizen should be subject to the kind of insecurity inherent in the Minister’s submission. It is not necessary to reproduce the authorities here because, as I explain below, the Minister’s point did not dispute these general propositions, but rather made a different point.

167    In terms of the correct construction, the applicant contends that the requirement in s 10B(1)(b) is better characterised “as a precondition of registration”, rather than parentage and registration operating as independent jurisdictional facts that are susceptible to constant re-evaluation.

168    The Minister also relies on Minister for Immigration and Multicultural and Indigenous Affairs v Walsh [2002] FCAFC 205; 125 FCR 31. In that decision, the Full Court considered the position of Ms Walsh, who was born in Papua (which at the time was an Australian territory) and whose citizenship ceased by operation of reg 4 of the Papua New Guinea Independence (Australian Citizenship) Regulations 1975 (Cth). Ms Walsh applied to be registered as a citizen under s 10C of the 1948 Act, which required that she have been born “outside Australia”. The Minister contends that the Court’s reasoning in that case accords with the Minister’s interpretation of s 10B in the present case.

169    The applicant contends that the Minister’s reliance on Walsh is inapt. The applicant points to that case concerning a very different dispute over changed territory, for a person who had never been recognised as a citizen by descent.

Resolution

170    To the extent that the Minister’s submissions suggest s 10B(1) operates on a state of fact, they are correct. However, as I explain, the real question is: what kind of facts?

171    Sections 10B, 10C and 11 of the 1948 Act should be read together. That is the clear intention of s 10B(5). Each is intended to be a pathway for a person to acquire Australian citizenship by descent, by meeting the specified criteria, rather than through the discretionary path of citizenship conferral on application. As the primary judge in Walsh said at [27]-[28] (see Walsh v Minister for Immigration and Multicultural Affairs [2001] FCA 1886; 116 FCR 524, quoted with approval by the Full Court in Walsh at [44]), the intention of these provisions was to confer the benefit of citizenship upon the children of Australian citizens.

172    Each of these provisions is declaratory, in the sense of operating on its own terms to confer Australian citizenship. No discretion is involved; no satisfaction of a decision-maker is involved. Parliament intends that if the facts objectively exist, Australian citizenship is conferred, by force of the provision.

173    In that sense, these provisions set out jurisdictional facts for their operation: see Timbarra Protection Coalition Inc v Ross Mining NL [1999] NSWCA 8; 46 NSWLR 55 at [36]-[44] (Spigelman CJ, with whom Mason P and Meagher JA agreed). See also AOU21 v Minister for Home Affairs [2021] FCAFC 60 at [118]; BGM16 v Minister for Immigration and Border Protection [2017] FCAFC 72; 252 FCR 97 at [28] (Mortimer and Wigney JJ); Country Carbon Pty Ltd v Clean Energy Regulator [2018] FCA 1636; 267 FCR 126 at [165] (Mortimer J); Reysson Pty Ltd v Minister Administering the Environmental Planning and Assessment Act 1979 [2020] NSWCA 281; 247 LGERA 277 at [53] (Payne JA), referring to Corporation of the City of Enfield v Development Assessment Commission [2000] HCA 5; 199 CLR 135.

174    In Country Carbon at [165] I summarised my understanding of the core propositions from Timbarra:

In my respectful opinion, the most helpful explanation of the circumstances where, as a matter of statutory construction, a Court may conclude that a legislative provision imposes a jurisdictional fact as a precondition to a statutory power arising for exercise, is found in the reasons for judgment of Spigelman CJ (with whom Mason P and Meagher JA agreed) in Timbarra Protection Coalition Inc v Ross Mining NL (1999) 46 NSWLR 55. A number of core propositions emerge from his Honour’s reasons:

(a)    Parliament may make any fact a jurisdictional fact and where it does so, the consequence is that the fact “must exist” objectively (at [37]);

(b)    To find that a fact is a jurisdictional fact, the Court must conclude, as a matter of statutory construction, that Parliament intended the presence (or absence) of the fact to invalidate the exercise of power (at [37]);

(c)    Both “objectivity” and “essentiality” (Spigelman CJ’s terms) are inter-related elements in the determination of whether a matter is a jurisdictional fact (at [38]), albeit that the ordinary principles of statutory construction are to be applied (at [39]);

(d)    A determination that a matter is not a jurisdictional fact involves a conclusion, after the process of construction is completed, that Parliament intended that the primary decision-maker could authoritatively determine the existence or non-existence of the fact, subject to judicial review of that determination (at [41]);

(e)    Where “a factual reference appears in a statutory formulation containing words involving the mental state of the primary decision-maker — ‘opinion’, ‘belief’, ‘satisfaction’ — the construction is often, although not necessarily, against a conclusion of jurisdictional fact” (at [42]);

(f)    The location in the statutory structure of the alleged jurisdictional fact may be critical. Where the alleged fact is located in a provision conferring power, or arises in the course of the consideration by that repository of a power of its exercise, then this may suggest the fact is not intended to be jurisdictional. In contrast, if the fact is located as a preliminary or ancillary matter to the exercise of power, it may indicate Parliament intended the existence of the fact, objectively, to condition the exercise of power (at [44], [51]);

(g)    Another way to put this factor is by asking the question whether the fact is “a fact to be adjudicated upon in the course of the inquiry” as distinct from an “essential preliminary to the decision making process” (at [52], referring to Colonial Bank of Australasia v Willan (1874) 5 PC 417 at 443). Spigelman CJ then lists a number of other authorities dealing with this factor (at [53]-[54]);

(h)    Other aspects of a given statutory scheme may inform the characterisation the Court must make: see generally [67]-[81], where Spigelman CJ analyses a number of features of the Environmental Planning and Assessment Act 1979 (NSW) and the related Threatened Species Conservation Act 1995 (NSW).

175    The text and context of s 10B indicate Parliament intends the facts in sub-s (1)(a) and sub-s (1)(b) to exist objectively. The presence or absence of the facts is intended to either validly render a person an Australian citizen or validly preclude them from being one for the purposes of s 10B. There are no textual suggestions that the matter depends on the opinion or satisfaction of an individual decision-maker, and the matters in each sub-section are readily ascertainable as a matter of objective fact. While the factual matters are contained in the provision which confers the status of citizenship, they are properly characterised as pre-conditions. That is because the provision is declaratory, and operates by force of the existence of the two sets of facts in those two sub-sections.

176    By reason of the Court’s orders in this proceeding, the cancellation of the applicant’s registration under s 10B(1)(a) will be set aside. Therefore, the applicant will remain registered for the purposes of s 10B(1)(a), and his registration has never been validly cancelled.

177    As the applicant submits, the focus of s 10B(1)(b) is on the time of a person’s birth. At that point in time, did the person have a parent who was an Australian citizen? There is, objectively, only one correct answer to that question, but what the correct answer is depends on the evidence.

178    The provision is not ambulatory; it does not enable re-evaluation on any kind of continuing basis about whether the preconditions are met, depending on the subjective views of a particular officer or decision-maker. If that is the import of the Minister’s submissions, I reject them. These are jurisdictional facts to which there is one correct answer. The correct answer turns on a state of fact that existed at the time of the applicant’s birth.

179    However, as the applicant’s counsel maintained, this is not a proceeding about the applicant’s citizenship status. It is a judicial review about the cancellation decision. The applicant has succeeded on his challenge to the cancellation decision. It is only because he has also sought his release from immigration detention that the Court is required to form a view about the proper construction of s 10B. I have concluded that s 10B(1) of the 1948 Act sets out two jurisdictional facts and if those facts exist, then by operation of the provision itself, a person “is” an Australian citizen. The evidence or material which might go to the determination of whether those objective facts exist is not necessarily co-extensive with the evidence before the Court in the present proceeding.

180    The applicant’s registration was undertaken on the basis that Mr L was the applicant’s parent. Given the proper construction of the word “parent”, and given the birth certificate presented to the Department, plus Mr L’s declaration in the registration application form, at an objective level there would appear to be at least a probative basis for a finding that Mr L was the applicant’s parent at the time of his birth. As I have explained, whether or not Mr L was the applicant’s biological father does not determine the statutory question, which is whether Mr L was the applicant’s “parent”, as properly construed. Nevertheless, the Court is not determining the objective facts in s 10B(1), so I make no finding about whether Mr L was the applicant’s parent at the time of the applicant’s birth.

181    If the Minister does not accept that the two jurisdictional facts exist, then another Court will need to determine those jurisdictional facts, on evidence adduced for that purpose.

182    While the applicant is correct that registration under s 10B(1)(a) contemplates that the officer making the registration decision is satisfied that the relevant person had an Australian citizen parent at the time of their birth, it is the objective existence of an Australian citizen parent which is the core jurisdictional fact for the acquisition of Australian citizenship. That is confirmed by s 10B(2). It is also the overall purpose of the provisions – to extend the status of Australian citizen to the children of an Australian citizen. If, having doubted the applicant’s status, the executive is not now prepared objectively to accept his status, then the applicant may have to prove he satisfies the jurisdictional fact in s 10B(1)(b) in order to have that status confirmed. The registration under s 10B(1)(a) now remains, so it is difficult to see any obstacle to the existence of that first jurisdictional fact.

183    Beyond one further general point (in addition to my observations at [171] above), I do not consider the analysis in Walsh assists one way or the other. Walsh concerned the construction of specific regulations altering the status of persons born in Papua before independence insofar as their status as Australian citizens was concerned. The general point is that the Full Court clearly looked at the question of Ms Walsh’s status as a matter of objective fact. That is consistent with the approach I have taken.

Detention under s 189 of the Migration Act if the cancellation decision is set aside

184    The Minister relies on the decision of the High Court in Thoms v Commonwealth of Australia [2022] HCA 20; 96 ALJR 635 for the proposition that s 189(1) of the Migration Act authorises the detention of persons who may be citizens (or, I add, not aliens) where, at the time of detention, there are objectively reasonable grounds to suspect that they are non-citizens (or, I infer, aliens). The Minister relies particularly on Thoms at [21], [25], [31] (Kiefel CJ, Keane and Gleeson JJ), [46] (Gageler J), [51], [57], [58], [81], [83] (Gordon and Edelman JJ), and [87]-[88] (Steward J).

185    On this basis, the Minister submits that it is open for a relevant officer to form an objectively reasonable suspicion that the applicant remains a non-citizen because there is a reasonable basis to suspect that Mr L was not the applicant’s “parent” at the time of his birth. That is because, the Minister submits:

(a)    movement records indicate Mr L cannot be the biological parent of the applicant;

(b)    no claim has been made that Mr L was a non-biological parent at the time of the applicant’s birth; and

(c)    the evidence indicates there was no well-understood non-biological parenting of the applicant by Mr L at the time of the applicant’s birth.

186    The applicant submits the proper construction of s 10B is that it concerns only the acquisition of citizenship, and such citizenship remains unless and until it is lost pursuant to Div 4 of the 1948 Act. As such, on the applicant’s submission, if the cancellation decision is quashed, the applicant’s registration would be restored as if it had never been cancelled. In support of this submission, the applicant cites Minister for Immigration and Multicultural Affairs v Bhardwaj [2002] HCA 11; 209 CLR 597. The applicant submits that, as a consequence of Item 2 of Sch 3 of the Australian Citizenship (Transitionals and Consequentials) Act 2007 (Cth), the applicant’s citizenship under the 1948 Act will be taken to be citizenship under the Citizenship Act 2007.

Resolution

187    I refer to the starting point for the legal position, as I set it out at [162] above. That is the framework for any legal analysis, including by an officer on whom a duty under s 189 and/or s 196 of the Migration Act is imposed.

188    The Minister is correct to emphasise that the terms of s 189 (and, implicitly, s 196) require an officer to have a state of mind that can be characterised as a “reasonable suspicion” that a person is an unlawful non-citizen. In the present situation, like Thoms but also distinctly from Thoms, the issue is not about whether a person holds a visa that is in effect. It is about citizenship status (cf, in Thoms, alienage).

189    The statutory term “reasonable suspicion” gives the word “reasonable” much work to do. In Goldie v Commonwealth of Australia [2002] FCA 433; 117 FCR 566, Gray and Lee JJ said (at [4], [6]):

the word “reasonably” has been placed before the word “suspects” in 189(1). The adverb makes it clear that, in order to justify arrest and detention, the suspicion that a person is an unlawful non-citizen must be justifiable upon objective examination of relevant material. Given that deprivation of liberty is at stake, such material will include that which is discoverable by efforts of search and inquiry that are reasonable in the circumstances.

…

It is trite to say that what is reasonable in a particular case depends upon the circumstances of that case.

190    See also generally, Guo v Commonwealth of Australia [2017] FCA 1355; 258 FCR 31; Commonwealth v Okwume [2018] FCAFC 69; 263 FCR 604; Montgomery v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 1423; McHugh v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCAFC 223; 358 ALR 405.

191    Now that the registration cancellation decision has been set aside, before an officer could form a reasonable suspicion for the purposes of s 189, and in light of the registration of the applicant as an Australian citizen, such an officer would need to pay careful heed to the statements of principle and their application in the authorities to which I have referred above. No doubt one critical factor is what view is formed about whether Mr L was the applicant’s “parent”, properly construed, at the time of the applicant’s birth, and whether the parties will require a Court to decide that question of fact.

192    It would be premature, and inappropriate, for the Court to make any further findings in this proceeding.

CONCLUSION

193    I have specified in the Court’s orders the date from which the cancellation decision is to be set aside. The Court has power to do that under s 16 of the ADJR Act. Given I have found reg 7C invalid, it is in my opinion clear the cancellation decision must be set aside from the time it was made. That will not necessarily affect the lawfulness of the applicant’s detention: see Ruddock v Taylor [2005] HCA 48; 222 CLR 612 at [24], [27]-[28] (Gleeson CJ, Gummow, Hayne and Heydon JJ). However, again I make no express finding on this matter as it is not before the Court in this proceeding.

194    I accept the Court’s conclusions leave the applicant in a difficult position. However, this was a judicial review proceeding about the cancellation of the registration of the applicant as an Australian citizen, and the Court must confine itself to the matters which must be decided to determine that judicial review. That said, it is apparent from these reasons that there are larger questions that must be resolved.

195    A great deal of public funds have already been expended in arguing about the applicant’s citizenship. A much larger sum has been expended in detaining him. In my view, the parties would benefit from a mediation process. That cannot be undertaken within the confines of this proceeding as the Court has made final orders. Nevertheless, the Court encourages the parties to consider engaging in such a process outside the Court’s processes.

Associate:

Dated:    16 December 2022