Crotty and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Citizenship)
[2020] AATA 39
•21 January 2020
Crotty and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Citizenship) [2020] AATA 39 (21 January 2020)
Division:GENERAL DIVISION
File Number: 2019/0463
Re:Luna Crotty
APPLICANT
AndMinister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
RESPONDENT
DECISION
Tribunal:The Hon. John Pascoe AC CVO, Deputy President
Date:21 January 2020
Place:Sydney
The reviewable decision of the delegate is affirmed.
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The Hon. John Pascoe AC CVO, Deputy President
CATCHWORDS
CITIZENSHIP – application for Australian citizenship by descent brought by Applicant’s mother – where Applicant was born outside of Australia – whether mother has been ‘present in Australia’ for a total period of at least two years in accordance with the Act – whether living overseas in Australian diplomatic missions can be considered as being ‘present in Australia’ – statutory interpretation – decision affirmed
LEGISLATION
Acts Interpretation Act 1901 (Cth) – ss 2, 2B
Australian Citizenship Act 2007 (Cth) – ss 3, 7, 16
CASES
Brannigan v The Commonwealth (2000) 110 FCR 566
Forster v Jododex Aust Pty Ltd (1972) 127 CLR 421
Jumbunna Coal Mine NL v The Victorian Coal Miners’ Association (1908) 6 CLR 309
Minister for Foreign Affairs v Magno (1992) 37 FCR 298
R v Woutersz [2017] ACTSC 212
Saeed v Minister for Immigration and Citizenship (2010) 241 CLR 252
REASONS FOR DECISION
The Hon. John Pascoe AC CVO, Deputy President
21 January 2020
In this case the Applicant seeks a review of the delegate’s decision dated 2 January 2019 refusing an application to become an Australian citizen by descent. The delegate found that the Applicant did not satisfy the requirements of section 16(2)(b)(i) of the Australian Citizenship Act 2007 (‘the Act’) because the Applicant’s mother had only spent a total of 665 days in Australia up to the date of the application for citizenship and accordingly did not meet the two-year requirements set out in the section.
On 28 January 2019 the Applicant through her mother made an application to the Tribunal for review of the delegate’s decision. In the Application to the Tribunal the mother claimed that the decision maker should have included in the calculation of the time she was present in Australia, the nearly nine years where she was resident in Australian diplomatic missions overseas. The mother claimed that international law regarded time spent in overseas missions as being equivalent to spending time on Australian territory.
Evidence was given that the Applicant was born in New York in August 2018. She applied through her mother for citizenship by descent on 9 December 2018. The Applicant’s mother was herself born in Hong Kong in 1983 and was registered as an Australian citizen by descent on 28 March 1983. The Applicant’s father is a citizen of the United States.
A letter was produced as evidence before the Tribunal from the Department of Foreign Affairs and Trade which stated that the Applicant’s mother lived at the Australian Embassy compound in Beijing from 1992 to 1997, during which time her father was the deputy head of mission, and at the Australian head of post residence in Taipei from 1997 to 2001 during which time her father was the head of post.
THE ISSUE
The only issue before the Tribunal is whether for the purposes of section 16(2)(b)(i) of the Act the Applicant’s mother has been present in Australia for a total period of at least two years at any time before the application was made.
It is not in dispute that the Applicant’s mother has been physically present in Australia for 665 days which is 65 days short of the requisite two-year period.
The Applicant contends that any deficit in terms of being physically present in Australia is made up by the Applicant’s mother’s residence at an Australian diplomatic mission overseas. This is disputed by the Respondent who contends that residence at an Australian diplomatic mission overseas is not being ‘present in Australia’ for the purposes of the Act. While at the hearing of this matter the Respondent’s representative noted that it was difficult to determine the exact number of days the Applicant’s mother spent in those diplomatic missions solely from the letter from the Department of Foreign Affairs and Trade, it was conceded that it would have been more than 65 days.
THE LEGISLATIVE FRAMEWORK
The relevant provisions of section 16(2) of the Act are as follows:
(2) A person born outside Australia on or after 26 January 1949 is eligible to become an Australian citizen if:
(a)a parent of the person was an Australian citizen at the time of the birth; and
(b)if the parent was an Australian citizen under this Subdivision or Subdivision AA, or section 10B, 10C or 11 of the old Act (about citizenship by descent), at the time of the birth:
(i) the parent has been present in Australia (except as an unlawful non-citizen) for a total period of at least 2 years at any time before the person made the application; or
(ii) the person is not a national or a citizen of any country at the time the person made the application and the person has never been such a national or citizen…
Section 3 of the Act defines Australia, ‘when used in a geographical sense’, as including the external territories of Australia. ‘External territory’ is defined in section 2B the Acts Interpretation Act1901 as follows:
In any Act:
…
"external Territory" means a Territory, other than an internal Territory, where an Act makes provision for the government of the Territory as a Territory.
THE PARTIES SUBMISSIONS
In summary, the Applicant contends firstly that there was an intention by the legislature that, for the purposes of the Act, any area that is subject to Australian law and regulation is to be treated as ‘Australia’ for the purposes of the Act. That would include an Australian Embassy compound where the laws of Australia, in the Applicant’s submission, would apply. Thus the Applicant contends that such ‘diplomatic compounds” are equivalent to the external territories of Australia.
The Applicant’s second submission is that substantial compliance with the two year timeframe set out in section 16(2)(b)(i) of the Act is sufficient.
Thirdly, the Applicant contends that section 16(2)(b)(i) does not refer to Australia in a geographical sense, but rather extends to a person who is ‘within the jurisdiction of Australia’.
The Respondent submitted that the words of the relevant section are clear and require physical presence in Australia for the requisite period. The Respondent argued that residence at an Australian diplomatic compound did not fall within the requirements of the section and that any notion that an Australian diplomatic compound was part of Australia was an outdated one which had clearly been discredited.
CONSIDERATION
There is no dispute as to the facts in this case.
The Applicant puts forward three arguments in relation to the construction of section 16(2)(b)(i) which I will deal with in turn.
The Applicant first contends that because the definition of ‘Australia’ includes external territories, it is an inclusive definition and not an exclusive one. Accordingly the Applicant argues that it includes an Embassy compound overseas because both external territories and Embassy compounds are said to be governed by Australian law.
The Applicant further argues that it is appropriate to look at the purpose of the legislation in construing the meaning of section 16(2)(b)(i).
For its part, the Respondent argues that the definition of Australia in the Act should be read narrowly and according to its terms. In my view this is the preferred course. I note that at common law there is a general presumption that legislation is not intended to have an extraterritorial effect unless the is a clear contrary intention. This was outlined by O’Connor J in Jumbunna Coal Mine NL v The Victorian Coal Miners’ Association (1908) 6 CLR 309 at 363:
In the interpretation of general words in a Statute there is always a presumption the legislature does not intend to exceed its jurisdiction. Most Statutes, if their general words were taken literally in their widest sense, would apply to the whole world, but they are always read as being prima facie restricted in their operation within territorial limits.
The common law position is also reflected in statute in the Acts Interpretation Act 1901. Section 2B relevantly provides:
In any Act:
…
“Australia” means the Commonwealth of Australia and, when used in a geographical sense, includes Norfolk Island, the Territory of Christmas Island and the Territory of Cocos (Keeling) Islands, but does not include any other external Territory.
Section 2 provides:
(2) However, the application of this Act or a provision of this Act to an Act or a provision of an Act is subject to a contrary intention.
Although the Acts Interpretation Act in section 2 follows the common law in allowing for a contrary intention, there is no contrary intention to be found in the Act. When looking at the relevant section certain basic rules of construction apply, including the need to focus on the statutory text and the context of that text.
Whilst extrinsic material can be consulted it would be an error to look at these materials before exhausting the application of the ordinary rules of statutory construction (Saeed v Minister for Immigration and Citizenship (2010) 241 CLR 252). Applying the normal rules of construction to the definition of ‘Australia’, it is quite clear that the definition under the Act includes the external territories and also all islands which would fall within the ordinary definition of Australia. It does not mean that the definition is infinitely expandable by reference to the purposes of the Act. It is of no assistance to the Applicant to focus on the nature of an Australian mission overseas in seeking to ascertain the ‘purpose’ of the Act.
In my view it is clear that the Parliament has expressly and deliberately extended the definition of Australia in the Act to include the external territories that would otherwise not be covered by the definition in the Acts Interpretation Act. However there is no discernible intention on the part of the Parliament to extend the definition any further. This issue was considered by O’Loughlin J in Brannigan v The Commonwealth (2000) 110 FCR 566 in the context of a provision in the Racial Discrimination Act 1975 similar to that in section 3 of the Act. His Honour stated that ‘there was an opportunity for the legislature to address issues of extraterritoriality [beyond the external territories] but it did not do so’.
I note further that the word ‘Australia’ is used throughout the Act in a variety of contexts. It is necessary to adopt a definition that is consistent throughout the Act, including provisions relating to eligibility for citizenship which require ‘presence in Australia’. It is also noteworthy that the Act makes specific exceptions which deem someone to be in Australia, including section 7(1)(a) which provides:
Persons born on ships or aircraft
(1) For the purposes of this Act:
(a)a person born on a ship or aircraft registered in Australia or a foreign country is taken to have been born at the place at which the ship or aircraft is registered;
The existence of this definition is clearly against the interpretation sought by the Applicant. The Applicant’s argument as to how the term ‘Australia’ is to be defined is not assisted by the existence of section 7(1)(a) which is clearly a specific exception, and there is nothing in the text of the Act to support the Applicant’s argument. Even if recourse is to be had to the purpose and context of the Act this does not assist the Applicant.
Further, although historically it may have been considered that an Australian Embassy compound was part of Australia, this was a legal fiction which has long been replaced by a more functional idea that immunities and privileges, including the inviolability of overseas mission premises, existed because they are necessary to allow a diplomatic mission in the host state to properly perform its functions. This was made quite clear by Justice French (as he then was) in Minister for Foreign Affairs v Magno (1992) 37 FCR 298 where his Honour stated at 321 (citations omitted):
The principle [of inviolability] was at one time associated with a legal fiction that the person and premises of ambassadors were outside the territory of the receiving State… But that fiction has been long discredited… Contemporary international law draws a distinction between the territory of the receiving State on which the sending State’s mission stands and the sending State’s primary jurisdiction and control over the members of the mission and their activities in the embassy.
Similar views were expressed by Penfold J in R v Woutersz [2017] ACTSC 212 where her Honour observed as follows at [46]:
I note in passing that the proposition that the premises of a consular post are part of the territory of the sending State seems to be a widely-held misconception, dating back many years in the history of international law but possibly given broader currency, among other things, by an episode of the TV series “The Simpsons” in which the Simpson family visits Australia. Irrespective of its origins, the proposition remains a misconception…
The matter was also considered in Brannigan where O’Loughlin J concluded that there ‘was no foundation for the proposition that diplomatic premises are to be regarded as outside the Territory of the receiving State’.
The Applicant’s second argument was that ‘substantial compliance’ with the two year requirement in section 16(2)(b)(i) is enough. This argument is entirely at odds with the clear wording of the section. In Forster v Jododex Aust Pty Ltd (1972) 127 CLR 421 Gibbs J stated as follows at 445:
… Where an instrument prescribes that a period of time must elapse between one event and another, the words “at least” or “not less than” should, unless the context or the subject matter reveals a contrary intention, be regarded as indicating that a clear or full period of time must expire…
In this case, the Act is quite clear as to the requirement to be met and no contrary intention can be found.
The Applicant’s third argument, that the word ‘Australia’ in section 16(2)(b)(i) of the Act does not refer to Australia in a geographic sense but rather a jurisdictional one, simply cannot be sustained. The Act shows a clear connection between a presence in Australia as required by section 16(2)(b)(i) and a physical presence which must be geographically related or otherwise the provision is meaningless. For example, if the Applicant’s construction were to be adopted, any reference to a person being present in Australia ‘as an unlawful non-citizen’ would be rendered pointless.
At the hearing the Applicant’s representative argued strongly the unfairness of the outcome and I have some sympathy for that argument, but the Act leaves no room for discretion to be applied. Accordingly, the only course open to the Applicant would be for her mother to spend the requisite number of days in Australia required to meet the prescribed period.
DECISION
The reviewable decision of the delegate is affirmed.
I certify that the preceding 33 (thirty -three) paragraphs are a true copy of the reasons for the decision herein of The Hon. John Pascoe AC CVO, Deputy President
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Associate
Dated: 21 January 2020
Date of hearing: 14 January 2020 Advocates for the Applicant: Ms L Gerovich and Mr S Gerovich Solicitors for the Respondent: Mr J Hutton, Australian Government Solicitor
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