Federal Court of Australia

QHXW v Minister for Immigration and Citizenship [2026] FCA 960

ORDERS

THE COURT ORDERS THAT:

1.    The application for judicial review is dismissed.

2.    The applicant must pay the first respondent’s costs of the proceeding, to be taxed if not agreed.

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

REASONS FOR JUDGMENT

JACKSON J:

1    This is an application for judicial review of a decision of the Administrative Review Tribunal. It turns on a question of law that is to be applied to a simple set of facts.

2    For the reasons that follow, the question is answered adversely to the applicant, so that the application will be dismissed.

The question of law

3    The question of law is whether, in the circumstances set out below, it was within the legislative power of the Commonwealth Parliament, as conferred by s 51(xix) of the Constitution, to assign to the applicant the status of ‘non-citizen’ under the Migration Act 1958 (Cth). Section 51(xix) empowers the Parliament to make laws with respect to ‘Naturalization and aliens’, and is conveniently called the aliens power. To be clear, this is the question as distilled by me; it has not been formally posed as a separate question.

The facts

4    The set of facts is as follows.

5    The applicant was born in New Zealand, on 18 July 1977. At that time, both of his parents were Australian-born citizens who were living in New Zealand. They had been living there since 1975. On his birth, the applicant therefore acquired New Zealand citizenship by operation of s 6 of the British Nationality and New Zealand Citizenship Act 1948 (NZ). He has never relinquished that status.

6    The applicant and his father came to Australia in September 1980, when the applicant was three years old. Since then, the applicant has never left Australia.

7    As a result of the citizenship of his parents, while still in New Zealand the applicant would have been eligible to become an Australian citizen under the Australian Citizenship Act 1948 (Cth) if his birth had been registered at an Australian consulate within five years. After coming to Australia, he could have become an Australian citizen by applying, although upon becoming an adult that application would have been subject to good character requirements, which, by reason of his criminal record, the applicant may not have met. But the applicant’s birth was never registered in Australia, and he never made a valid application for Australian citizenship, so he has never been an Australian citizen.

8    In May 2019, and again in August 2022, the applicant was in Australia on an absorbed person visa. At each of those times he was convicted of serious offences that cumulatively led to him serving a term of imprisonment of more than 12 months.

9    On 15 November 2022, the applicant’s visa was mandatorily cancelled under s 501(3A) of the Migration Act, on the basis that he had a substantial criminal record and was serving a sentence of imprisonment on a full-time basis.

10    The applicant made representations as to why the cancellation of his visa should be revoked. On 25 February 2025, a delegate of the first respondent (Minister) decided not to revoke the cancellation. The applicant then sought review of that decision in the Tribunal, which on 20 May 2025 decided to affirm it.

The ground of the application

11    The applicant now seeks judicial review of the Tribunal’s decision on one ground only:

The Migration Act 1958 (Cth) has no valid application to the applicant such that:

a)    in respect of the application under s 39B of the Judiciary Act 1903 (Cth), his detention under s 189 of the Migration Act is unlawful by reason that he is not an alien for the purposes of s 51(xix) of the Constitution.

b)    in respect of the application under s 476A of the Migration Act, the Tribunal’s decision was without or beyond authority because its jurisdiction under the Migration Act extends only to persons to whom that Act validly applies.

12    To understand the parameters of the dispute, a few matters that are common ground between the parties should be set out.

(1)    Notices of a constitutional matter under s 78B of the Judiciary Act 1903 (Cth) were issued to the Commonwealth and all State and Territory Attorneys-General before the hearing, and none sought to intervene.

(2)    The applicant does not contest that he is a non-citizen who does not hold a visa, so that on their terms, s 189 and s 198 of the Migration Act require that he be kept in immigration detention and removed from Australia as soon as reasonably practicable, barring a successful application for revocation of the decision to cancel his visa. As said, the applicant’s contention is that the Act, and therefore those provisions, do not validly apply to him.

(3)    The aliens power is the only constitutional head of power that gave Parliament the power to enact the relevant provisions of the Migration Act.

(4)    The applicant does not contend that the provisions of the Act are invalid, but rather, in reliance on s 15A of the Acts Interpretation Act 1901 (Cth), that they should be construed to have a distributive operation and a severable character. This means that they apply to all persons within the class to whom they can validly apply, and not to persons outside it: see e.g. Pochi v Macphee (1982) 151 CLR 101 at 110. The applicant says that he is outside that class of persons, so that in his case the Migration Act did not give the Minister’s delegate or the Tribunal the power to make the decisions they did. The Minister does not take issue with this way of approaching the matter; the issue between the parties is whether the applicant is indeed outside the class of persons to whom the Act can validly apply.

(5)    Nothing in particular turns on the precise wording of any of the provisions of the Migration Act.

(6)    The applicant makes no criticism of the reasoning of the Tribunal as such. His case is that the power of the Tribunal to make the decision it did, and the powers and obligations of the Department of Home Affairs consequent on that decision, have no valid application to him. It will therefore not be necessary to refer to the reasoning of the Tribunal further, save briefly in connection with an argument advanced by the applicant as an alternative to his primary submission.

(7)    Nevertheless, the Minister takes no issue with the applicant’s use of judicial review as the vehicle to determine the constitutional issue.

(8)    Hence the question can be put broadly as it is at the start of these reasons. If the question is answered in the negative, then the decision of the Tribunal was outside the power conferred by the Migration Act and was therefore made in jurisdictional error.

The parties’ cases

13    It appears that the question posed by the applicant’s case, as distilled at the outset of these reasons, has not been determined by an Australian court on this precise set of facts, in particular for a person born overseas to two Australian-citizen parents. There is a decision in which this Court held that a non-citizen who had one Australian-citizen parent was not outside the reach of the aliens power: Logan v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 1068; (2020) 278 FCR 419 (Colvin J). The parties are at odds as to whether Logan is distinguishable, and that will be considered below.

14    It appeared that the parties were also at odds in relation to the basal question of identifying the institution that has power to determine the meaning of ‘alien’ in the present context: Parliament or the Court? Relying on Singh v The Commonwealth [2004] HCA 43; (2004) 222 CLR 322 at [5] (Gleeson CJ), the applicant submits that it is for the Court to decide the meaning of ‘aliens’ in s 51(xix) of the Constitution. He says that the aliens power does not authorise Parliament to make laws with respect to any person who in the opinion of Parliament is an alien. But the Minister submits that the settled understanding of the aliens power is that it empowers Parliament to define the circumstances in which a person will have the legal status of ‘alienage’ or, conversely, the circumstances in which a person will be ‘admitted to formal membership of the Australian body politic’: Minister’s submissions para 13.

15    The parties did seem to be agreed that the High Court’s jurisprudence as to who is and is not an alien tends to focus on whether the specific cases before the Court fall outside the concept of alienage. It was suggested that the High Court has not laid down any authoritative test or set of criteria by which the question here can be answered. The applicant relied on various observations in High Court cases to establish a ‘framework’ for interpreting the Constitution in the context of the aliens power. These will be set out below, but it will be seen that they mostly give examples of who may be treated as an alien, and do not set the outside limits of the concept.

16    Ultimately, the applicant’s submission is that, as a child of two Australian-born citizens, he ‘does not answer the description of “alien” merely because [his] birth occurred across the Tasman’: applicant’s submissions para 33. He says this is ‘[i]n accordance with the Pochi limit’. That is the limit beyond which a person cannot possibly answer the description of ‘aliens’, in the ordinary understanding of the word. This formulation comes from an observation in the judgment of Gibbs CJ (Mason and Wilson JJ agreeing) in Pochi, which will be set out in context below.

17    I take the applicant to mean that, for the reasons he gives, he cannot possibly be described as an alien according to the ordinary understanding of the word, and so is outside the scope of Parliament’s power to attach legal consequences to a person for holding the status of alien. The applicant relies on dicta of Edelman J in Alexander v Minister for Home Affairs [2022] HCA 19; (2022) 276 CLR 336 and on Love v The Commonwealth [2020] HCA 3; (2020) 270 CLR 152 which, he submits, support the position that a person whose parents were Australian citizens at the time of their birth has such a connection to the Australian polity as to mean that they are not properly conceived of as an alien.

18    The applicant has an alternative submission that does not rely on the Pochi limit. Instead it proceeds on the basis that there is an identifiable constitutional meaning of ‘alien’, and that when all of the applicant’s circumstances are considered, he does not fall within it. This does not put the matter in terms of whether the applicant cannot possibly be an alien, but instead poses an overall evaluation according to an asserted stable, constitutional meaning of the term.

19    The Minister submits, however, that the only recognised limits on Parliament’s power to determine who is and is not an alien are the Pochi limit, and certain restrictions on denaturalisation arising from Ch III of the Constitution, as held in Alexander. The Minister submits that neither of those limits affects the position of the applicant. The Minister submits that within those limits, Parliament was free to define who is an alien, and that it has done so in the Migration Act by treating all non-citizens as aliens.

20    The Minister also submits that while citizenship is a statutory concept, it has constitutional significance. He submits that this Court is bound by clear dicta of the plurality in Alexander at [33], to the effect that the aliens power empowers the Parliament to ‘attribute to any person who lacks the qualifications prescribed for citizenship ‘the status of “alien”’. The Minister points out that the only case to date in which the High Court has held that certain persons cannot be aliens is Love, in which it was held that Aboriginal Australians (understood according to the tripartite test in Mabo v Queensland (No 2) (1992) 175 CLR 1) are not within the reach of the aliens power. The applicant does not claim to be an Aboriginal person.

The Constitutional framework

21    Three foundations of the applicant’s argument were not disputed and I accept they are correct.

22    The first is that the source of legislative power in the Parliament to enact the Migration Act must be found in the aliens power, or not at all. The second is that, in accordance with s 15A of the Acts Interpretation Act, the Migration Act operates distributively and severably so that, to the extent that the purported application of the Act to the applicant exceeds the scope of the aliens power, it will be construed not to apply to him. Therefore, the constitutional validity of any particular provision of the Migration Act need not be considered. Both of those propositions are confirmed as correct in Chetcuti v The Commonwealth [2021] HCA 25; (2021) 272 CLR 609 at [11]. The third is that the time at which to assess the validity of the application of the Migration Act was the time of the cancellation of the applicant’s visa. That, too, is consistent with established constitutional principle: see e.g. Australian Communist Party v Commonwealth (1951) 83 CLR 1 at 255.

23    I turn, then, to what I have called the basal question. As mentioned, the applicant relied on dicta in Singh to argue that the meaning of ‘alien’ in the Constitution is fixed and not capable of determination by Parliament. He relied on Gleeson CJ’s statement in Singh at [5] that: ‘Everyone agrees that the term “aliens” does not mean whatever Parliament wants it to mean’. And he further relied on [153], where Gummow, Hayne and Heydon JJ said that it was (footnote removed):

important to emphasise the point made by Fullagar J in Australian Communist Party v The Commonwealth (the Communist Party Case) by reference to the metaphor that a stream cannot rise higher than its source. As his Honour said [at 258]:

A power to make laws with respect to lighthouses does not authorise the making of a law with respect to anything which is, in the opinion of the law-maker, a lighthouse.

To adapt that dictum to the present case, a power to make laws with respect to aliens does not authorise the making of a law with respect to any person who, in the opinion of the Parliament, is an alien. That Parliament has made a law which a party or intervener asserts to be a law with respect to aliens presents the constitutional question for resolution; it does not provide an answer.

24    However, Gleeson CJ’s statement in Singh at [5] followed from, and is explained by, his Honour’s statement at [4] that, subject to the qualification found in the Pochi limit, Parliament:

has the power to determine the legal basis by reference to which Australia deals with matters of nationality and immigration, to create and define the concept of Australian citizenship, to prescribe the conditions on which such citizenship may be acquired and lost, and to link citizenship with the right of abode.

25    Also established in Singh were the matters conveniently set out in the following summary in in Koroitamana v Commonwealth [2006] HCA 28; (2006) 227 CLR 31 at [9] (Gleeson CJ and Heydon J):

[A]ll the Justices who were in the majority in Singh rejected the proposition that, at the time of federation, the concept of alienage had an established and immutable legal meaning that deprived Parliament of any substantial room for legislative choice in the matter [Singh at [30], [190], [252]]. On the contrary, ‘questions of nationality, allegiance and alienage were matters on which there were changing and developing policies, and which were seen as appropriate for parliamentary resolution’ [Singh at [30]]. Internationally, two theories, one of which attached controlling importance to descent, and one of which attached controlling importance to place of birth, competed for acceptance. The Constitution did not commit Australia to uncompromising adherence to either theory.

26    Hence, the Minister is correct to submit that the High Court has acknowledged that, within the Pochi limit, Parliament has the power to determine who is an alien and what the consequences of that status are. Parliament may choose whether to apply descent as the controlling criterion, or place of birth, or some mixture of the two: Koroitamana at [9] (Gleeson CJ and Heydon J), [50] (Gummow, Hayne and Crennan JJ), [62] (Kirby J).

27    In Alexander at [33] Kiefel CJ, Keane and Gleeson JJ (Gageler J agreeing) confirmed the relevant principle, authoritatively, as follows (footnotes removed):

While alienage, describing a lack of formal legal relationship with the community or body politic, is a constitutional concept, the Constitution leaves it to Parliament to decide who shall be granted the status of citizenship and what that status may mean in terms of the rights, privileges, immunities and duties of citizens. In this regard, s 51(xix) of the Constitution empowers the Parliament to ‘create and define the concept of Australian citizenship’, to select or adopt the criteria for citizenship or alienage and to attribute to any person who lacks the qualifications prescribed for citizenship ‘the status of alien’. In Chetcuti v The Commonwealth [at [12]], Kiefel CJ, Gageler, Keane and Gleeson JJ said that ‘the aliens power encompasses both power to determine who is and who is not to have the legal status of an alien and power to attach consequences to that status’.

28    The full passage in Chetcuti at [12] is (footnotes removed):

In challenging his detention on the ground that he is not within the reach of the aliens power, the appellant does not seek to disturb the settled understanding that the aliens power encompasses both power to determine who is and who is not to have the legal status of an alien and power to attach consequences to that status. Nor does the appellant seek to disturb the settled understanding that, in determining who is and who is not to have the legal status of an alien, it is in general open to the Parliament to ‘treat as an alien any person who was born outside Australia, whose parents were not Australians, and who has not been naturalized as an Australian’.

The quote in this passage is from Nolan v Minister for Immigration and Ethnic Affairs (1988) 165 CLR 178 at 185, quoting Pochi at 109-110. Relevant aspects of both of those cases will be described below.

29    Counsel for the applicant criticised the Minister’s reliance on this passage from Chetcuti as ‘contradictory to fundamental principles of constitutional law, namely, that legislation cannot alter the meaning and application of a constitutional word’ (ts 10). Counsel pointed out that in Chetcuti at [11], the majority referred to the distributive and severable operation of the Migration Act to the extent of any constitutional overreach, footnoting Pochi, but he did not explain how this altered the meaning of the ‘settled understanding’ described in Chetcuti at [12]. The passage is an authoritative statement of a ‘settled understanding’ of the law by a majority of the members of the High Court. And it was reiterated by an effective majority in Alexander.

30    The applicant further relied on statements in decisions of other members of the High Court who have advocated different approaches that have not received majority acceptance. The applicant’s own criticisms do not authorise this Court to depart from the majority view. In any event, as I will explain soon, the applicant’s criticisms are incorrect.

31    It is convenient at this point to explain the significance of Pochi. Mr Pochi was born in Italy. He lived in Australia but never became an Australian citizen. He sought an injunction from the High Court to restrain his deportation from Australia after he had been convicted of a serious crime. His first argument in the High Court was that the provision of the Migration Act that authorised the deportation order was invalid, because it applied to persons who were not aliens within the meaning of s 51(xix) of the Constitution. This argument turned on what was then a statutory definition of ‘alien’ which, Mr Pochi submitted, meant that some persons who were in truth British subjects were nevertheless ‘aliens’ within the meaning of the Act. The question of who was a British subject was determined by the law of the United Kingdom.

32    In that context, at 109-110 Gibbs CJ (Mason and Wilson JJ agreeing) said the following:

The meaning of ‘aliens’ in the Constitution cannot depend on the law of England. It must depend on the law of Australia. It is true that s 51(xix) presents some difficulties. Clearly the Parliament cannot, simply by giving its own definition of ‘alien’, expand the power under s 51(xix) to include persons who could not possibly answer the description of ‘aliens’ in the ordinary understanding of the word. This question was not fully explored in the present case, and it is unnecessary to deal with it. However, the Parliament can in my opinion treat as an alien any person who was born outside Australia, whose parents were not Australians, and who has not been naturalized as an Australian. The plaintiff’s argument is based on a false assumption and must fail.

33    Mr Pochi also argued that he was not an alien because he had been totally absorbed into the Australian community. Gibbs CJ rejected that argument, saying (at 111) that, in the context of common law rules as to alienage that had feudal origin, ‘there is nothing antiquated in the notion that a person’s nationality is not changed by length of residence or by an intention permanently to remain in a country of which he is not a national’, and noting that there were ‘strong reasons why the acquisition by an alien of Australian citizenship should be marked by a formal act, and by an acknowledgment of allegiance to the sovereign of Australia’. See also Re Minister for Immigration and Multicultural Affairs; Ex parte Te [2002] HCA 48; (2002) 212 CLR 162 at [27] (Gleeson CJ). Accordingly, the applicant here does not rely on his absorption into the Australian community, save perhaps in the alternative argument that is addressed briefly at the end of these reasons.

34    This concept of the ordinary understanding of the word ‘aliens’ as furnishing a limit on Parliament’s power has been repeatedly affirmed by the High Court since then: e.g. Nolan at 184-185; Re Patterson; Ex parte Taylor [2001] HCA 51; (2001) 207 CLR 391 at [132], [238], [297], [303]; Te at [31], [159]; Shaw v Minister for Immigration and Multicultural Affairs [2003] HCA 72; (2003) 218 CLR 28 at [9]; Singh at [4], [151]; Koroitamana at [81]; Love at [7], [50], [64], [168], [236], [244]; [326], [433]. In Alexander at [35] the joint judgment framed the question in terms of whether it would ‘stretch the ordinary understanding of the expression “alien” to include within that category’ a given individual. And, as their Honours put it at [46] (and see also at [63]): ‘Parliament may not expand its law-making power under s 51(xix) of the Constitution by pursuing an eccentric understanding of alienage’.

35    It was effectively common ground before me that, save on one occasion, the High Court has not identified any particular characteristics that mean that a person could not possibly answer the description of aliens in the ordinary sense of the word. That occasion was Love, where it was held by majority that ‘Aboriginal Australians (understood according to the tripartite test in Mabo [No 2]) are not within the reach of the “aliens” power conferred by s 51(xix) of the Constitution’: Love at [81] per Bell J, summarising the views of the majority, with the authorisation of its other members. As has been said, that has no direct relevance to the applicant here.

36    As the Minister submits, another limit on the aliens power was also identified in Alexander, where a power on the part of the executive to denaturalise a citizen was held to impose a punishment, so that it was a power properly reserved to the judiciary under Ch III of the Constitution. That, too, has no relevance here.

37    One further feature of this conceptual framework should be highlighted. Axiomatically, Parliament cannot, by legislative power, alter the meaning of a term of the Constitution, and nowhere does the Constitution provide that a term used in it means whatever Parliament chooses it to mean. In the example given by Fullager J in the Australian Communist Party Case, a lighthouse under s 51(vii) is not anything that Parliament deems to be a lighthouse. It does not follow, however, that legislation passed by the Parliament under the aliens power has no constitutional significance.

38    That is because, as the quote from Alexander (see above at [27]) makes clear, alienage describes ‘a lack of formal legal relationship with the community or body politic’. Thus, the majority in Alexander, including Gageler J in concurrence, endorsed the following passage from his Honour’s judgment in Love at [94] (footnote omitted):

The power conferred on the Parliament of the Commonwealth by s 51(xix) to determine the legal status of alienage was a power which from the outset enabled the Parliament to bring a measure of precision to the identification of those to whom the Constitution refers as ‘the people’, by laying down criteria for determining with specificity which persons were and which persons were not to have the legal status of members of the body politic of the Commonwealth of Australia.

39    That was footnoted to a passage from Hwang v Commonwealth [2005] HCA 66 at [10], in which McHugh J said that the power to make laws with respect to citizenship:

… arises from the express and implied powers of the Parliament of the Commonwealth to declare who are the persons who are members of the Australian community. It arises partly by implication out of the Parliament’s status as the national Parliament and its entitlement to define who are ‘the people’ who make up the Australian community. And it arises partly out of its express power to make laws with respect to immigration, naturalisation and aliens.

40    When a person becomes a citizen of Australia, under laws enacted by the Parliament, that person enters into a formal legal relationship with the body politic of the Commonwealth of Australia, and cannot be an alien for so long as that legal relationship subsists. That is how legislation passed by the Parliament can have constitutional significance for the purposes of the aliens power. As Gageler J explained in Love at [86] (albeit as one of the dissentients in that case), unlike ‘lighthouse’, ‘alien’ in this context is a topic of juristic classification which is not a constitutional fact that can be ascertained independently of the application of positive law.

41    This reasoning has been questioned and criticised, as risking or involving circularity or bootstrapping: e.g Singh at [311]; Chetcuti at [37], [69]; Love at [327]; Alexander at [192], [194]. But with respect to those who criticise it that way, I do not understand it to be circular. The power to make laws with respect to naturalisation and aliens is circumscribed, in that it does not extend to those who could not possibly answer the description of ‘aliens’ on the ordinary understanding of the word. Therefore, the word does not mean whatever Parliament says that it means. But within those limits, legislation passed by the Parliament, not to mention other events in the life of the individual and the nation (Alexander at [39], and see also Nolan at 186 and Shaw at [9]), may affect who does and does not have the necessary legal relationship with the body politic of Australia, so as not to answer the description of ‘alien’ on the stable constitutional meaning of that term.

42    The applicant also relied on observations about the passage from Chetcuti set out at [28] above that Edelman J made in Jones v Commonwealth of Australia [2023] HCA 34; (2023) 280 CLR 62 at [125]:

When four members of this Court in Chetcuti v The Commonwealth [at [12]] said that it is a ‘settled understanding that the aliens power encompasses both power to determine who is and who is not to have the legal status of an alien and power to attach consequences to that status’, their Honours could not have been intending to suggest that the principle in the Communist Party Case did not apply to the aliens power so that an alien could mean whatever the Commonwealth Parliament wanted it to mean. All that could have sensibly been meant is that the Commonwealth Parliament has power to attach a statutory status to any or all of those people who fall within the constitutional concept of an alien, and to provide for the consequences of such a status. Indeed, their Honours accepted that where a law of the Commonwealth Parliament treats ‘all non-citizens as aliens’, that law might need to be disapplied ‘to the extent of any constitutional overreach’ [Chetcuti at [11]].

43    However, with respect, and as set out further below, Edelman J’s views about the aliens power have not been embraced by a majority of the High Court.

44    For the reasons set out above, the settled understanding of the High Court does authorise Parliament to determine who is an alien, albeit within the limits set by Gibbs CJ’s dictum in Pochi. That is where, on the settled understanding, the point of ‘constitutional overreach’ is to be found. The key question for the purposes of this proceeding is whether, in purporting to apply to the applicant, the Migration Act has passed that point.

Considering the applicant’s primary case

45    The applicant’s primary case is that he is a person who cannot possibly answer the description of an alien on the ordinary understanding of the word (ordinary to constitutional lawyers, at least). That way of putting it follows from his inevitable acknowledgment that he is not a citizen of Australia. Although it is has been clear since Love that ‘citizen’ and ‘alien’ are not always and inevitably antonyms (Alexander at [34]), if the applicant is not outside the Pochi limit – that is, if he is within the scope of the power of the Parliament to legislate in a way from which the status of alienage follows – then the assignation to him by the Migration Act of the status of ‘non-citizen’, and the consequences that follow from that assignation, will be authorised by the Constitution.

Why does the applicant say he cannot possibly be an alien?

46    What, then, on the applicant’s primary case, means that he cannot possibly be considered to be an alien?

47    As it transpired, and despite framing his primary submission in terms that reflected Pochi, the applicant sought to establish a constitutional meaning for aliens that could not be applied to him, regardless of his status under laws passed by the Parliament as to citizenship and naturalisation. That is, he sought to identify what ‘aliens’ meant at the time of Federation, allowing for necessary adaptation to take account of developments since then. While this was an orthodox mode of constitutional interpretation, as far as it went (see e.g. Singh at [159]; Chetcuti at [57]-[58]), it did not go far enough. This is because it did not take account of the particular character of the concept of alienage, outlined above, as being affected by a person’s legal relationship to the body politic, which in turn can be affected by constitutionally valid exercises of legislative power.

48    In any event, counsel for the applicant sought to identify various points at which members of the High Court (and others) had described what ‘aliens’ meant under the Constitution, so as to establish that the applicant fell outside that meaning. It is necessary to go through these to do justice to his argument.

49    In Chetcuti at [59] Edelman J held (footnotes removed): ‘When the term “alien” in s 51(xix) is interpreted at the appropriate level of generality, both as a matter of etymology and as a matter of legal meaning, it means a person who does not belong to the Australian political community.’ His Honour’s reference to an appropriate level of generality referred back to discussion in preceding paragraphs, concerning the need for the interpretation of terms in the Constitution to take account of it as a document intended to endure.

50    Similarly, in Love at [74] Bell J held that an Aboriginal Australian could not ‘be said to belong to another place’. Also in Love, at [301], Gordon J adopted the formulation in Singh at [190] that ‘alien’ is ‘anchored in the concept of “belong[ing] to another”’. In the same case at [437] Edelman J held that the essential meaning of an alien in s 51(xix) of the Constitution was a foreigner to the Australian political community, and that the antonym to ‘alien’ was not a statutory citizen, but a person ‘who is a belonger to the Australian political community’.

51    Their Honours were in the majority in Love, and the applicant puts those formulations as the essential meaning of the term. But, by itself, that did not advance his case very far, because stated as they are at an appropriately high level of generality, they provide no answer to the question here of why the applicant is said to belong to the Australian political community and not to another place or polity.

52    Counsel for the applicant thus sought to confer more specificity on the term by reaching back to discussion of the meaning of ‘alien’ as understood in English law at the time of Federation, in J. Quick and R.R. Garran, The Annotated Constitution of the Australian Commonwealth (Angus & Robertson, 1901) at 193:

In English law an alien may be variously defined as a person who owes allegiance to a foreign State, who is born out of the jurisdiction of the Queen, or who is not a British subject. The rule of the common law is that every person born out of the British Dominions is an alien, and that every person born within British Dominions is a British subject. This is known as the jus soli or the territorial test of nationality, which is contrasted with the jus sanguinis or the parentage test of nationality. There are several exceptions to the territorial rule; (1) legitimate children born out of the British Dominions, whose fathers, or grandfathers on their fathers’ side, were natural-born subjects, not in the service of an enemy at the time of such children’s birth, are entitled to the rights of natural-born subjects…

53    Allowing for the obsolescence of much of this terminology, counsel appeared to submit that the reference to ‘legitimate children born out of the British Dominions, whose fathers, or grandfathers on their fathers’ side, were natural-born subjects’ showed that a person born to an Australian parent outside Australia was not an alien on the legal understanding of that term as at Federation, and that this informs what the term meant when it was used in the Constitution. But to apply that common law meaning as though it became fixed in the Constitution would be inconsistent with what the High Court said in Singh and Koroitamana: see [24]-[26] above.

54    Counsel then turned to the passage from Pochi set out at [32] above, not just to refer to the Pochi limit, but also to seek to make use of Gibbs CJ’s statement that Parliament can treat as an alien ‘any person who was born outside Australia, whose parents were not Australians, and who has not been naturalized as an Australian’. He submitted that the Chief Justice thereby gave parentage ‘an operative role in the constitutional description of who Parliament could treat as an alien’ (ts 6). Counsel then seemed to contend that it followed, as the inverse of his Honour’s inclusion of parents who are not Australian as a condition for alienage, that someone who has Australian parents is in a different category.

55    Counsel then referred to a definition of ‘alien’ given in a joint judgment of six justices of the High Court in Nolan at 183. While he only relied on a particular part of that passage, it is necessary to set it out in full:

As a matter of etymology, ‘alien’, from the Latin alienus through old French, means belonging to another person or place. Used as a descriptive word to describe a person’s lack of relationship with a country, the word means, as a matter of ordinary language, ‘nothing more than a citizen or subject of a foreign state’: Milne v. Huber [(1843) 17 Fed Cas 403 at 406]. Thus, an ‘alien’ has been said to be, for the purposes of United States law, ‘one born out of the United States, who has not since been naturalized under the constitution and laws’. That definition should be expanded to include a person who has ceased to be a citizen by an act or process of denaturalization and restricted to exclude a person who, while born abroad, is a citizen by reason of parentage. Otherwise, it constitutes an acceptable general definition of the word ‘alien’ when that word is used with respect to an independent country with its own distinct citizenship.

56    Counsel relied in particular on the reference to ‘a person who, while born abroad, is a citizen by reason of parentage’. He also referred to a slightly later passage (at 184):

The fact that a person who was born neither in Australia nor of Australian parents and who had not become a citizen of this country was a British subject or a subject of the Queen by reason of his birth in another country could no longer be seen as having the effect, so far as this country is concerned, of precluding his classification as an ‘alien’.

57    Again, the suggestion appeared to be that, by identifying persons born not of Australian parents as potentially being classified as an alien, their Honours were implying that a person whose parents were Australian would not meet that classification.

58    Similarly, counsel for the applicant relied on Toohey J’s observation in Cunliffe v The Commonwealth (1994) 182 CLR 272 at 375, summarising Nolan, that ‘an alien can generally be defined as a person born out of Australia of parents who were not Australian citizens and who has not been naturalised under Australian law or a person who has ceased to be a citizen by an act or process of denaturalisation.’ Counsel here submitted that the applicant ‘adopts and agrees with that methodology’ (ts 8).

59    The applicant also relied on Shaw at [32], where the joint judgment described the ratio of that case as follows:

This case should be taken as determining that the aliens power has reached all those persons who entered this country after the commencement of the Citizenship Act on 26 January 1949 and who were born out of Australia of parents who were not Australian citizens and who had not been naturalised.

Of course, since the applicant’s parents were Australian citizens, this does not describe him.

60    Another passage on which the applicant relied was Chetcuti at [12]. This has already been set out at [28] above. The applicant points to the observation that ‘it is in general open to the Parliament to “treat as an alien any person who was born outside Australia, whose parents were not Australians, and who has not been naturalized as an Australian”’. Again, the suggestion appears to be that this implies that a person whose parents were Australians is not open to be treated as an alien.

61    Counsel for the applicant also relied on the following passage from the judgment of Edelman J in Alexander at [210]:

As a matter mainly of fact, the person can become a member of the political community at birth by powerful ties to the community beyond mere physical presence. Those ties can include being born in the territory of the Australian community to a parent or parents who are permanent members of the community, or having a deep and historical connection with that territory. Also as a matter mainly of fact, a permanent resident can become a permanent member of the community when the person has been unconditionally absorbed into the community.

62    The submission here appeared to be that the applicant had ties to the Australian community by reason of having been born to parents who were permanent members of it. Counsel acknowledged that his client did not fall squarely within the examples Edelman J gave, but submitted that they were non-exhaustive. But it will be observed that Edelman J was careful to frame all this ‘as a matter mainly of fact’, so it is not clear that his Honour was expressing any principle of the interpretation of the Constitution at this point. If he had been, then this passage would have been inconsistent with the principle, accepted since at least Pochi and not disputed by the applicant, that absorption into the Australian community does not convert an alien into a non-alien. Indeed, in Alexander, his Honour goes on to develop reasons why that settled principle may be too wide, while effectively acknowledging that the main stream of High Court authority is inconsistent with his views: see [223].

63    Also in Alexander was a footnote in the judgment of Steward J, which counsel for the applicant said described his client more closely. It was footnote 400 at [257], where his Honour said that:

… a person who was born overseas to parents who were only temporarily absent from this country and who were Australian citizens may not be an alien for the purposes of s 51(xix). Pochi v Macphee (1982) 151 CLR 101 does not address this issue; cf s 16 of the Australian Citizenship Act 2007 (Cth).

But of course, a tentative, footnoted dictum like that cannot displace the main current of authority, to the extent that one can be identified. And in any event, the evidence does not establish that the applicant’s parents were temporarily absent from Australia when he was born. His written submissions accept the Tribunal’s finding that they were residing in New Zealand at that time (applicant’s submissions paras 4 and 5).

64    Counsel for the applicant sought to build on the footnote by positing this example (ts 12):

An Australian couple who never left the country, they travel to New Zealand on a six-week holiday. They have their child, and they return to introduce the baby to their extended Australian family. Now, in my submission, that child cannot be regarded at that point in time as a constitutional alien. Its non-alienage cannot reasonably depend on registration or a formal application process as prescribed by statute. Now, if the court accepts that proposition, it follows Australian parentage can place a person outside of the alien’s power, regardless of birthplace.

65    But that is not the applicant’s situation, and in circumstances where the High Court has eschewed laying down firm definitions of who is and is not an alien for constitutional purposes, it would not be appropriate for me to comment on this example. The inescapable realities are:

(a)    nowhere does the High Court say that the fact of Australian parentage, taken alone, puts a person outside the constitutional concept of alienage, however conceived; and

(b)    the settled understanding of the law is that, while observing the Pochi limit (including the presently irrelevant position of Aboriginal Australians), it is within the scope of the aliens power for Parliament to legislate as to who is and is not an alien.

66    A counter-example, relied on by the Minister is furnished by the judgment of Nettle J, a member of the majority in Love. At [254] his Honour said that:

… as a general proposition, there is no difficulty in describing a child who is born outside Australia and who is a citizen of a foreign country as an ‘alien’ within the ordinary understanding of that word – even if one of his or her parents is an Australian citizen. Generally speaking, Parliament has power under s 51(xix) of the Constitution to provide, as it has done, that such a person is and will remain a non-citizen, and so liable to treatment as an alien, unless and until that person is granted Australian citizenship under s 16 of the Australian Citizenship Act 2007.

Allegiance

67    I interpolate at this point that counsel for the applicant also made submissions about the utility of the concept of allegiance, as a touchstone for alienage.

68    In Singh at [154] the joint judgment of Gummow, Hayne and Heydon JJ said: ‘These reasons seek to demonstrate that a central characteristic of the status of “alien” is, and always has been, owing obligations to a sovereign power other than the sovereign power in question.’ Their Honours held that the plaintiff in that case had that characteristic, because she was a citizen of India (born in Australia to Indian parents and not having Australian citizenship). However, counsel for the applicant submitted that this point had been ‘diluted’ since Singh.

69    I accept that submission. In Alexander at [49] the joint judgment said:

The absence of the continuing commitment that is citizenship is sensibly described as an absence of ‘allegiance’. The utility of ‘allegiance’ as a determinative test for non-alienage has been questioned [Love at [428]-[431]]; and the plurality in Chetcuti held that the reach of the aliens power could be determined in that case ‘without need to explore common law notions of allegiance and alienage’ [at [34]]. But allegiance is a useful gauge of the existence of the bonds of citizenship. Section 44(i) of the Constitution itself expressly acknowledges that allegiance may be an integral aspect of citizenship.

70    Hence I will not treat the applicant’s allegiance to a foreign sovereign, in that he is a citizen of New Zealand, as, by itself, determinative of his alienage. But it remains relevant, even if not determinative; it will be recalled that, in Singh, the joint judgment described it as a ‘central characteristic of the status of “alien”’: see also Love at [322] (Gordon J). It will also be observed that the above passage from Alexander is careful to refer only to allegiance, presumably to the sovereign of Australia, as a test of non-alienage. As will be seen, what is relevant here is the applicant’s allegiance to a foreign country, by reason of his citizenship of that country, as a characteristic that makes it open to the Parliament to legislate under the aliens power in terms that designate him as a ‘non-citizen’.

Is the applicant a person who could not possibly answer the description of ‘alien’?

71    As has been said, the applicant’s primary submission is that exclusively Australian parentage brings with it such a connection to the Australian polity as to place the applicant out of the reach of the aliens power. I do not accept that submission.

72    At certain points, the applicant’s submissions appeared to entertain the logical fallacy that when members of the High Court give examples of people who fall within the aliens power, whoever is not covered by the example must be outside the reach of that power. Gibbs CJ’s statement in Pochi, that it is open to Parliament to treat as an alien a person whose parents were not Australians (see [54] above), does not imply that all persons whose parents were Australian could not be aliens. Nor can that implication be drawn from the entire passage, considered in its context, as set out above.

73    Similarly, when the joint judgment in Nolan says that a person who is not born of Australian parents is not precluded from being an alien (see [55]-[56] above), that does not imply that a person who is born of Australian parents is, by that fact alone, precluded from that classification.

74    As to Cunliffe (see [58] above), the ‘definition’ of an alien given by Toohey J – ‘a person born out of Australia of parents who were not Australian citizens and who has not been naturalised under Australian law’ – was expressed to be a general one. Taken in context, his Honour was merely summarising Nolan. His Honour was not purporting to lay down a principle where, as if in a statute, a person who does not meet one of a set of criteria is not capable of being determined by Parliament to be an alien. His Honour was, once again, merely giving core examples of people who were aliens. Also, immediately after the sentence on which the applicant relies, Toohey J went on to say (at 375) that ‘the terms “non-citizen” and “alien” are synonymous’. While that is no longer the law after Love, the applicant is not free to take parts of the passage that suit his argument and to disregard the parts that do not.

75    The point about the logical fallacy need not be repeated in relation to the further examples from Shaw and Chetcuti that are set out at [59]-[60] above, although it is worth noting that in Taylor v Minister for Home Affairs [2022] FCA 309 at [61], Moshinsky J gave essentially the same reading to Shaw as I do here. And I have already dealt with the slightly different use the applicant sought to make of passages in Alexander at [61]-[65] above.

76    The passage from Nolan at 183 on which the applicant relies needs particular comment: see [55] above. The applicant’s submission rested on the part of the passage where the joint judgment says that the definition of ‘alien’ should be restricted to ‘exclude a person who, while born abroad, is a citizen by reason of parentage’. While his client is not a citizen of Australia, counsel seemed nevertheless to submit that, because the statutory concept of citizenship is not determinative of alienage, the use of the term ‘citizen’ can be disregarded, and this passage can be taken to support the view that parentage can negative alienage. In his written submissions, the applicant put it in terms of circularity: the point appears to be that, since it would be circular to define the constitutional term ‘alien’ by reference to the statutory concept of citizenship, because that concept is itself circumscribed by the aliens power, that reference can be disregarded in the passage from Nolan, so that the High Court is to be understood as identifying parentage alone as the limiting concept.

77    But unlike statutory provisions, dicta of the High Court are not susceptible to a distributive and severable interpretation, so that they can be read to mean something different to the ordinary meaning of their words. Either the passage has been overruled and found to be wrong by a subsequent High Court, or it must be given the authoritative weight that its status as ratio decidendi or obiter dictum of the High Court requires. Either way, the applicant cannot, by this technique, take the parts of the passage that suit him, and discard the rest.

78    The applicant did not submit that this passage from Nolan has been overruled. Earlier in the passage, the joint judgment said that ‘alien’, used as a descriptive word, means ‘a citizen or subject of a foreign state’. The core description of the concept thus captures the applicant; the later modifying restriction about a person who is a citizen by reason of parentage does not. Far from being overruled, in Singh at [205] the joint judgment relied on the statement in Nolan that ‘alien’ ‘means, as a matter of ordinary language “nothing more than a citizen or subject of a foreign state”’, without adding the ‘exclusion’ on which the applicant here relies. And in Alexander the joint judgment (with the concurrence of Gageler J) set out the entire quote, also found at [55] above, with evident approval.

79    As ingenious as counsel’s use of all these examples was, none of them fit the applicant, and none of them provide authority for the primary submission that, having been born to Australian-citizen parents, the applicant cannot possibly answer the description of ‘alien’ on the ordinary understanding of the word. That submission must be assessed by reference to the High Court’s authoritative explication of that ordinary understanding, to the extent that it has given one, and by reference to the actual circumstances of the applicant.

80    As to the ordinary understanding, I accept on the authority of Love that at a high level of generality, an alien is a person who belongs to another country and does not belong to the Australian political community: see [49] above. But as general as that is, it gives no guidance as to whether the applicant in this case does or does not belong, in that sense, to Australia or to New Zealand.

81    More guidance is provided by the statement of the joint judgment in Alexander that alienage, as a constitutional concept, describes ‘a lack of formal legal relationship with the community or body politic’: see [27] above. The applicant has never had a formal legal relationship to the Australian community or body politic of that kind (his visas obviously did not qualify). I do not treat that as fatal to the applicant’s argument, though. For it will be recalled that in Alexander this was qualified by the Pochi limit, and I respectfully consider that the qualification does need to be observed to avoid falling into circularity; if the lack of a formal legal relationship is the sole determinant of the constitutional status of alien then Parliament could indeed, by legislating to negative any relationship, confer that status on anyone it likes.

82    Further guidance still is given by the concept of allegiance. While, as I have explained, the current state of High Court authority does not treat that as determinative of alienage or non-alienage, it remains a useful gauge of the existence of the bonds of citizenship: see [69] above. In my view it follows that allegiance, however derived, can be a legal bond that means that a person belongs to the local body politic so as to mean that they are not an alien; conversely it is a bond of a kind that can mean that a person is so bound to a foreign body politic that it is open to describe them as alien. That is consistent with the key passage from Nolan, set out at [55] above. And it is consistent with Alexander: it was Mr Alexander’s repudiation of ties of allegiance to Australia (which he had by citizenship) which led the majority of the High Court to hold that he came within the legislative competence of the Parliament under the aliens power.

83    Guidance is also found in another passage from Nolan, on which the applicant did not rely. The applicant submitted that the passage in Nolan set out at [56] above represented ‘a shift in the denotation of the essential meaning of alien’, because British subjects were ‘considered to be taken outside the purview of non-aliens’ (ts 8). But immediately after, on the same page (184), the joint judgment said that the meaning of the word ‘alien’ had not altered, saying:

That word is and always has been appropriate to describe the status, vis-a-vis a former colony which has emerged as an independent nation with its own citizenship, of a non-citizen who is a British subject by reason of his citizenship of a different sovereign State.

84    In other words, it is not beyond the ordinary meaning of ‘alien’ to apply it to a non-citizen of Australia who is a citizen of another former British colony, where both Australia and the other colony are independent nations. That fits the circumstances of the applicant.

85    The above matters, taken together, defeat the applicant’s primary argument. He was a citizen of a foreign independent country, born on its soil, and owing allegiance to it in that sense. To adapt the words of the joint judgment in Alexander at [35], it does not stretch the ordinary understanding of the expression ‘alien’ to include within that category an individual who was born in a foreign country, who is a citizen of that country, and who never took the steps necessary to become a citizen of Australia. To use the words of the same judgment at [46], in legislating in a manner that denies citizenship to a person who meets that description, Parliament has not pursued any ‘eccentric understanding of alienage’. To use the high level term endorsed in Love, it was open to Parliament to treat such a person as belonging to a foreign country and not belonging to Australia.

86    I have not overlooked that in Love, each of Mr Love and Mr Thoms was a citizen of a foreign country who was born overseas. But in their cases it was the unique relationship they had with the Australian community by virtue of being Aboriginal people which precluded characterising them as aliens. The applicant here does not have that relationship. Love does not preclude taking account of allegiance to a foreign country as a matter that can mean that a person can fall within the ordinary meaning of ‘alien’. The case of Logan, which will be considered shortly, confirms that understanding of Love.

87    Another way the point can be put in relation to the applicant comes from the example given by Nettle J in Love: see [66] above. His Honour saw no ‘difficulty’ in characterising a child born outside Australia who is a citizen of a foreign country as an ‘alien’, even if one of the child’s parents is an Australian citizen. Understandably, the applicant sought to distinguish his own situation from this by pointing to the fact that he had not one, but two Australian citizen parents. But save in one respect, he was not able to articulate any principled basis to say why one parent would be insufficient to take a person outside the potential scope of the aliens power, while two parents would be sufficient.

88    The point that counsel for the applicant did articulate was that a person with two Australian citizen parents does not, through his or her parentage, have any connection with a different polity, while a person with one foreign citizen parent does. But this idea finds no support in any judgment of the High Court (or any other court). And it also fails to explain why the other connections with the foreign country of New Zealand that the applicant undoubtedly does have do not permit him to be described as an alien.

89    Observing the Pochi limit is not a matter of weighing up all the potential indicia of alienage and non-alienage and making an evaluative binary judgement, where two parents have more weight than one. It is to pose the questions that have just been answered: does it stretch the ordinary meaning of the term ‘alien’, or is it an eccentric understanding of the term, to apply it to a person who, while being born to two Australian citizens, was born in a foreign country and is a citizen of that country, and in that sense owes allegiance to that foreign country? As informed by the High Court authority canvassed above, the answer is ‘no’.

90    It remains only to consider the relevance of Logan to the applicant’s primary argument, a matter on which, as has been said, the parties were at odds.

91    Ms Logan was born in England in 1970 and travelled to Australia when she was two years old. Her mother was an Australian citizen, but her father was not. Ms Logan never took Australian citizenship. She was convicted of a serious offense and, like the applicant here, was exposed to removal from Australia. On an application for judicial review, it was argued that she was outside the reach of the aliens power, relying on the decision in Love. Colvin J rejected that argument and dismissed the application.

92    The applicant here seizes on the obvious point of distinction between his case and that of Ms Logan: he had two Australian citizen parents, while she had only one. But for the reasons I have already given, I do not accept that is a relevant distinction. Alienage is not to be assessed as though by some kind of points system.

93    I do accept, however, another basis put by the applicant to distinguish Logan. The argument resting on the aliens power in that case was a narrow one. Logan was heard a few months after Love was handed down. Ms Logan conceded that, on the law as it stood before Love, the relevant ground of review could not succeed. But, she submitted, Love had changed the law so as to support her case. Therefore, the sole question for consideration in Logan was whether Love had that effect.

94    After analysing each of the judgments in Love, Colvin J held that it did not seek to revisit the correctness of earlier authority on the aliens power, as it applied to a person in Ms Logan’s circumstances (at [78]). Rather, Love raised a novel question specific to the status of Aboriginal people. The ground was therefore dismissed.

95    As has been seen, the case of the applicant here was much wider-ranging than that. The concession made by Ms Logan and accepted by the Court means that the considerations of consistency, predictability and correctness sometimes encapsulated in the term ‘judicial comity’ do not dictate that I must reach the same result here as was reached in Logan. Nevertheless, the reasoning above proceeds on an understanding of Love consistent with that outlined in Logan.

The applicant’s alternative argument

96    As an alternative, counsel for the applicant invited the Court to undertake what his counsel described as an ‘holistic analysis’, whereby all the applicant’s relevant circumstances are to be considered and evaluated against what he described as the ‘essential meanings articulated in Love and Chetcuti’. Counsel advanced, not just the applicant’s Australian parentage, but his ‘45 years of unbroken residence in the country from the age [of] three’, the fact that he went to school in Australia, and the Tribunal’s uncontested finding that he had family and social ties to this country and to no other.

97    To this was added a submission that under a definition of ‘alien’ found in s 5(1) of the Australian Citizenship Act 1948, at the time of his birth, the applicant was not an alien. His descent made him eligible to become an Australian citizen by the simple expedient of his parents registering his birth at an Australian consulate. The applicant did not submit that the Act of 1948 could control the constitutional meaning of the term, of course, but it was said to be a relevant factor that went towards the overall exercise of ascertaining whether he was an alien in the constitutional sense.

98    I decline the invitation to embark on this exercise. For such an exercise is not authorised by the weight of High Court authority canvassed above, and would be inconsistent with that authority. There is no definitive description of ‘alien’ that has been endorsed by the High Court and that is capable of providing a criterion against which the applicant is to be judged. The concept of ‘belonging’ is at too high a level of generality to permit such an exercise, and none of the other examples and characteristics discussed above generate a stable, definite meaning for the term. To compile a list of potentially relevant characteristics of the appellant to be assessed against any such meaning would therefore be to undertake a hypothetically useful exercise by reference to an imaginary standard.

99    Further, and fundamentally, as explained above, the High Court has not given its imprimatur to a process by which the Courts, rather than the executive acting under legislation made by the Parliament, may perform the function of both deciding what an alien is, and deciding whether a given individual does or does not meet that description. The courts may police, as it were, the outer limits of the field of legislative competence, but they cannot take the legislative function to themselves: see Love at [4] (Kiefel CJ, in dissent but not on this point).

100    In my respectful view, that is essentially the approach taken to a similar contention in Taylor at [67]-[75].

Disposition

101    The question of law posed at the beginning of these reasons is answered in the affirmative. The application will be dismissed, with costs.

Associate:

Dated:    22 July 2026