Crotty and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Citizenship)

This matter concerned an application for Australian citizenship by descent made on behalf of an infant applicant. The applicant's mother, who was not an Australian citizen, had been present in Australia for a total period of at least two years, a requirement for the applicant to be granted citizenship by descent. However, a significant portion of the mother's time overseas had been spent living in Australian diplomatic missions. The dispute centred on whether such periods spent at Australian diplomatic missions constituted being 'present in Australia' for the purposes of the relevant citizenship legislation.

The primary legal issue before the court was the proper construction of the term 'Australia' within the context of the citizenship legislation, specifically whether residence at an Australian diplomatic mission overseas could be considered as being 'present in Australia' for the purpose of satisfying the residency requirements. This involved considering whether the definition of 'Australia' in the *Acts Interpretation Act 1901* (Cth) was inclusive of such overseas locations, and whether the purpose of the legislation supported an interpretation that extended beyond physical presence within the geographical boundaries of Australia.

The court affirmed the common law presumption that legislation is not intended to have extraterritorial effect unless a contrary intention is clear. It noted that the definition of 'Australia' in the *Acts Interpretation Act* includes specific external territories but explicitly does not include any other external territory. The court found no contrary intention within the relevant Act to suggest that an Australian diplomatic mission overseas should be considered part of Australia for the purposes of the citizenship residency requirement. Applying ordinary rules of statutory construction, focusing on the text and context, the court concluded that the definition of 'Australia' was not infinitely expandable by reference to the perceived purpose of the Act, and that physical presence within the geographical limits of Australia was required.

The court affirmed the delegate's decision, finding that the applicant's mother had not met the statutory requirement of being present in Australia for the requisite period. The court acknowledged the potential unfairness of the outcome but noted that the Act provided no room for discretion, and the only recourse for the applicant would be for their mother to spend the required time physically present in Australia.