Lee v Minister for Home Affairs

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FEDERAL COURT OF AUSTRALIA

Lee v Minister for Home Affairs [2020] FCA 487

File number: QUD 400 of 2019
Judge: RANGIAH J
Date of judgment: 17 April 2020
Catchwords: MIGRATION – application for declaration of Australian citizenship under s 4(1)(b) of the Australian Citizenship Act 2007 (Cth) – where applicant born in Papua before grant of independence to Papua New Guinea – whether applicant remained Australian citizen at time of independence - whether applicant was a naturalised citizen of Australia at time of independence – whether applicant had a right to permanent residence in Australia at time of independence – whether status of applicant can be determined by reference to status of mother – where applicant was four months old at time of independence – where applicant’s mother had a right to permanent residence in Australia – applicant declared to be an Australian citizen
Legislation:

Acts Interpretation Act 1901 (Cth) s 17(a)

Australian Citizenship Act 1948 (Cth) ss 10(1), 12(1), 14(8) and 14(9)

Australian Citizenship Act 2007 (Cth) s 4(1)(b)

Migration Act 1958 (Cth) ss 5(1), 6(1), 6(3), 6(7), 6(8) and 18

Nationality and Citizenship Act 1948 (Cth) ss 5 and 15(5)

Papua New Guinea Independence (Australian Citizenship) Regulations 1975 (Cth) reg 4

Papua New Guinea Independence Act 1975 (Cth) ss 4 and 6

Passports Act 1938 (Cth) ss 5(1), 7(1) and 12

Constitution of the Independent State of Papua New Guinea ss 64, 65(1), 65(4), 67, 68 and 69

Cases cited:

Byrnes v Kendle (2011) 243 CLR 253

Donohoe v Wong Sau (1925) 36 CLR 404

McGinty v The State of Western Australia (1996) 186 CLR 140

Minister for Immigration and Ethnic Affairs v Petrovski (1997) 73 FCR 303

Minister for Immigration and Multicultural and Indigenous Affairs v Walsh (2002) 125 FCR 31

Neilson v Overseas Projects Corporation of Victoria Ltd (2005) 223 CLR 331

Pochi v Macphee (1982) 151 CLR 101

Potter v Minahan (1908) 7 CLR 277

R v Macfarlane; Ex Parte O'Flanagan (1923) 32 CLR 518

Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex Parte Ame (2005) 222 CLR 439
Date of hearing: 17 & 18 October 2019
Date of last submissions: 25 October 2019 (Applicant)
1 November 2019 (Respondent)
Registry: Queensland
Division: General Division
National Practice Area: Administrative and Constitutional Law and Human Rights
Category: Catchwords
Number of paragraphs: 109
Counsel for the Applicant: Ms K Rubenstein with Mr M Black
Solicitor for the Applicant: MCA Lawyers and Migration Agents
Counsel for the Respondent: Mr P Knowles
Solicitor for the Respondent: Clayton Utz

ORDERS

QUD 400 of 2019
BETWEEN:

TROYRONE ZEN LEE

Applicant
AND:

MINISTER FOR HOME AFFAIRS

Respondent

JUDGE:

RANGIAH J

DATE OF ORDER:

17 APRIL 2020

THE COURT ORDERS THAT:

1.It is declared that the applicant is an “Australian citizen” within the meaning of s 4(1)(b) of the Australian Citizenship Act 2007 (Cth).  

2.The respondent pay the applicant’s costs of the application.

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


REASONS FOR…

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Details
Case
[2020] FCA 487
Decision Date

CaseChat Overview and Summary

The case of Lee v Minister for Home Affairs involved an application by the applicant, Lee, for a declaration of Australian citizenship under section 4(1)(b) of the Australian Citizenship Act 2007. Lee, born in Papua before its independence, contended that he remained an Australian citizen at the time of independence, either because he had a right to permanent residence in Australia or because he was a naturalised citizen due to his parents' status. The Minister for Home Affairs argued that Lee had ceased to be an Australian citizen upon Papua's independence. The Federal Court was tasked with determining whether Lee remained an Australian citizen at the time of Papua New Guinea's independence and if his status could be determined by reference to his mother's status.

The central legal issues before the court were whether Lee remained an Australian citizen at the time of Papua New Guinea's independence and whether his status could be determined by his mother's status. The court examined the provisions of the Australian Citizenship Act 2007 and the PNG Constitution, particularly sections 65(1) and 65(4). It considered whether Lee's right to permanent residence in Australia or his status as a naturalised citizen due to his parents' naturalisation exempted him from becoming a PNG citizen. The court also addressed whether the ordinary meaning of "naturalized Australian citizen" included the child of a naturalised parent.

The court found in favour of Lee, concluding that he remained an Australian citizen at the time of Papua New Guinea's independence. The court held that Lee's status could be determined by reference to his mother's status, as he was a naturalised Australian citizen by virtue of his parents' naturalisation. The court preferred a construction of the PNG Constitution that promoted the protection of children, finding that the ordinary meaning of "naturalized Australian citizen" could include the child of a naturalised parent. Therefore, the court declared that Lee is an Australian citizen within the meaning of section 4(1)(b) of the Australian Citizenship Act 2007. The Minister for Home Affairs was ordered to pay Lee's costs of the application.

Orders

Orders of the court

1. It is declared that the applicant is an “Australian citizen” within the meaning of s 4(1)(b) of the Australian Citizenship Act 2007 (Cth).

2. The respondent pay the applicant’s costs of the application.

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

Background

Background to the litigation

The applicant argues, in the alternative, that the respondent is estopped from asserting that the applicant ceased to be an Australian citizen. Background The applicant is of Chinese ethnicity. The applicant’s paternal grandparents were both born in the Territory of New Guinea and became naturalised Australian citizens prior to the applicant’s birth. The applicant’s mother was born in British Hong Kong and was granted Australian citizenship under the Australian Citizenship Act 1948 (Cth) (the Australian Citizenship Act) on 20 December 1973. The applicant’s father was born in the Territory of New Guinea and was granted Australian citizenship on 16 October 1964. Therefore, when the applicant was born, the applicant’s parents were naturalised Australian citizens. The applicant has two younger siblings who were born in PNG after Independence Day. They are Australian citizens by descent. On 31 October 1975, six weeks after Independence Day, the applicant first travelled, with his mother, between PNG and mainland Australia. He travelled again with his mother between PNG and Australia in 1977, 1978 and 1981. In 1982, at the age of seven, the applicant moved to Australia with his family. He went on to complete his primary, secondary and tertiary education in Brisbane. The applicant lives with his wife and child in Brisbane. The applicant was first issued with an Australian passport in 1979. Before that, his name was listed in his mother’s passport. The applicant has since been issued with at least four Australian passports. In 2016, when the applicant attempted to renew his passport, he was informed by the respondent’s Department that he was not in fact an Australian citizen. The applicant deposes that he had never taken any steps to apply for Australian citizenship as he believed that he was already an Australian citizen. The applicant has worked for more than 20 years as an electrical engineer, specialising in rolling stock and railways. Employment within his area of specialisation is only available overseas, but he is unable to obtain work visas without having an Australian passport. The applicant applied to the respondent for evidence of his Australian citizenship, but that was refused by a delegate on 24 September 2018. That applicant’s application for internal review of that decision was rejected on 25 June 2019.Citizenship arrangements between Papua New Guinea and Australia Before Independence Day (16 September 1975) Papua was an external territory of Australia. Section 10(1) of the Australian Citizenship Act provided that a person born in Australia was a citizen by birth. The definition of “Australia” included territories that were not trust territories. Persons born in Papua prior to Independence Day became Australian citizens at birth: Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex Parte Ame (2005) 222 CLR 439 at [1]; Minister for Immigration and Multicultural and Indigenous Affairs v Walsh (2002) 125 FCR 31 at [2] and [6].

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

On Independence Day, many Australian citizens by virtue of their birth in Papua lost their Australian citizenship and became citizens of PNG unless they fell into an exception in s 65(4). Consideration The Minister concedes that when the applicant was born, he was, pursuant to s 10(1) of the Australian Citizenship Act, an Australian citizen. However, in the Minister’s submission, the operation of Australian and PNG laws at the time meant that on Independence Day the applicant became a PNG citizen and lost his Australian citizenship. The applicant accepts that, for the purposes of s 65(1) of the PNG Constitution, he was “born in the country before Independence Day”, and had “two-grandparents who were born in the country”. However, he contends that s 65(1) did not apply to make him a PNG citizen because he had a right to permanent residence in Australia and therefore fell within s 65(4)(a) of the PNG Constitution, or, alternatively, he was a naturalised citizen and fell within section 65(4)(b). The applicant presented these arguments in reverse order and it is convenient to address them in the order in which they were presented.Was the applicant a naturalized citizen of Australia? The parties’ submissions The effect of s 65(4)(b) of the PNG Constitution is that a person would not be a citizen of PNG if they were “a naturalized Australian citizen” as at Independence Day. The applicant contends that he was a naturalised Australian citizen. The applicant argues that he was a naturalised Australian citizen by virtue of his parents’ naturalisation. The applicant points out that the obvious intention of s 65(4)(b) was to exclude naturalised Australian citizens from becoming PNG citizens. The applicant argues that it is highly unlikely that the PNG Constitution intended that infants should have a different citizenship status from their parents. The applicant submits that where s 65(4)(b) refers to a “naturalized Australian citizen” it should be construed as including a reference to the person’s infant children. The applicant supports his construction with reference to legal principles that nations owe particular obligations to child citizens in need of protection. Further, s 6(8) of the Migration Act 1958 (Cth) at the time linked a child’s status to their parent’s status. The applicant submits that a construction that promotes the protection of children should be preferred. The applicant also points to the context in which the PNG Constitution was drafted and, in particular, the Final Report of the Constitutional Planning Committee. The language of the Final Report is said to indicate an intention that “real” citizens of foreign countries would not become PNG citizens. The applicant also submits that the ordinary meaning of “naturalized Australian citizen” can include the child of a naturalised parent. He relies on s 5 of the Nationality and Citizenship Act 1948 (Cth), which defined “naturalized person” as including, relevantly, a “person who under any such law was deemed to be a naturalized British subject by reason of his residence with his father or mother”. The applicant also points to s 15(5) of that Act which allowed children to be included in an application for naturalisation by the responsible guardian or parent.