Minister for Home Affairs v Lee

Link copied
Case Copied 66 min read

FEDERAL COURT OF AUSTRALIA

Minister for Home Affairs v Lee [2021] FCAFC 89  

Appeal from: Lee v Minister for Home Affairs [2020] FCA 487
File number: QUD 137 of 2020
Judgment of: LOGAN, KERR AND BANKS-SMITH JJ
Date of judgment: 31 May 2021
Catchwords:

MIGRATION – appeal against declaration that the respondent is an “Australian citizen” within meaning of s 4(1)(b) of the Australian Citizenship Act 2007 (Cth) – where respondent born in the Australian external territory of Papua prior to Independence Day – where respondent’s parents both naturalised Australian citizens – whether the respondent became a citizen of Papua New Guinea (PNG) on Independence Day by virtue of s 64 and s 65 of the PNG Constitution and regulation 4 of the Papua New Guinea Independence (Australian Citizenship) Regulation 1975 (Cth) – whether the respondent would have been an “immigrant” for the purpose of s 6(1) of the Migration Act 1958 (Cth) as at 16 September 1975 – consideration of “immigration” in s 51(xxvii) of the Constitution – where respondent’s parents held domicile of Australia – whether respondent held domicile in Australia – appeal dismissed

PRACTICE AND PROCEDURE – where appeal required consideration of the unwritten law of PNG – where the law reports and legislation of PNG taken into account pursuant to s 174 and s 175 of the Evidence Act 1995 (Cth) – parties given opportunity to make further submissions on additional material considered by the Court

Legislation:

Constitution ss 24, 51, 122

Acts Interpretation Act 1901 (Cth) s 17

Australian Citizenship Act 1948 (Cth) ss 5, 10

Australian Citizenship Act 2007 (Cth) s 4

Domicile Act 1982 (Cth)

Evidence Act 1995 (Cth) ss 174, 175

Income Tax Assessment Act 1936 (Cth)

Judiciary Act 1903 (Cth) s 78B

Migration Act 1958 (Cth)

Papua New Guinea Independence Act 1975 (Cth)

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

Constitution of the Independent State of Papua New Guinea (PNG) ss 24, 64, 65

Constitutional Amendment (No 37) (Citizenship) Law 2014 (PNG) s 5

Constitutional Amendment (No 43) (Dual Citizenship) Law 2016 (PNG) s 2
Cases cited:

Ah-Yin v Christie (1907) 4 CLR 1428

Breen v Sneddon (1961) 106 CLR 406

Cadia Holdings Pty Ltd v New South Wales (2010) 242 CLR 195

Charlie v Kantha [2020] PGNC 446

Chetcuti v Commonwealth (2020) 95 ALJR 1

Chia Gee v Martin (1905) 3 CLR 649

Commonwealth Freighters Pty Ltd v Sneddon (1959) 102 CLR 280

Gerhardy v Brown (1985) 159 CLR 70

Harding v Federal Commissioner of Taxation (2019) 269 FCR 311

Ikowari v Minister for Foreign Affairs [2018] PGNC 236

In re Application by Geno [2016] PGSC 81

In re Reference to Constitution section 19(1) by East Sepik Provincial Executive [2011] PGSC 41

Koroitamana v Commonwealth (2006) 227 CLR 31

Lee v Minister for Home Affairs [2020] FCA 487

Love v Commonwealth of Australia (2020) 94 ALJR 198

Mahuru and Department of Immigration and Citizenship [2008] AATA 464

Minister for Immigration and Multicultural and Indigenous Affairs v…

CaseChat AU logo

Keep reading for free

Create a free CaseChat account to read Minister for Home Affairs v Lee and more:

  • Read every judgment in full
  • Ask AI and get answers linked to paragraphs
  • See how each paragraph was cited in later cases
  • Download judgments as PDF or Word
Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details
Case
[2021] FCAFC 89
Decision Date

CaseChat Overview and Summary

The appellant, the Minister for Home Affairs, appealed against a declaration that the respondent, Lee, is an Australian citizen. The Federal Court was asked to determine if Lee, born in Papua prior to Independence Day, became a citizen of Papua New Guinea on that day, thereby losing his Australian citizenship. The dispute arose from the interplay between Australian and Papua New Guinean laws, specifically sections 64 and 65 of the PNG Constitution and regulation 4 of the Papua New Guinea Independence (Australian Citizenship) Regulation 1975 (Cth).

The court had to address whether Lee became a Papua New Guinean citizen on Independence Day and, if so, whether this would have made him an immigrant under the Migration Act 1958 (Cth). Additionally, the court considered the concept of "immigration" as it relates to section 51(xxvii) of the Constitution. A key issue was whether Lee held a domicile of choice in Australia, given his parents were naturalised Australian citizens and held domicile in Australia. The court's analysis involved examining the unwritten law of Papua New Guinea, which was done by considering PNG law reports and legislation under sections 174 and 175 of the Evidence Act 1995 (Cth). The court provided the parties with an opportunity to submit further arguments on the additional material considered.

The court dismissed the appeal and ordered the appellant to pay the respondent's costs of and incidental to the appeal. The reasoning was that Lee did not automatically become a Papua New Guinean citizen on Independence Day, and thus, he retained his Australian citizenship. The court determined that Lee had a domicile of choice in Australia, similar to his parents, which solidified his status as an Australian citizen. The decision underscored the importance of examining both Australian and Papua New Guinean laws to resolve the citizenship question.

Orders

Orders of the court

THE COURT ORDERS THAT:

1. The appeal be dismissed.

2. The appellant pay the respondent’s costs of and incidental to the appeal, to be fixed by a registrar if not agreed.

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

Background

Background to the litigation

Full text does not contain this section.

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

Full text does not contain this section.