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

[2020] AATA 3697

Minogue and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Citizenship) [2020] AATA 3697 (9 September 2020)

Division:GENERAL DIVISION

File Number:          2018/6659

Re:Craig William John Minogue

APPLICANT

AndMinister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

RESPONDENT

DECISION

Tribunal:Deputy President S A Forgie

Date of decision:               9 September 2020

Place:Melbourne

The Tribunal decides to affirm the decision made by a delegate of the respondent dated 22 October 2018 refusing, under s 33 of the Australian Citizenship Act 2007, to approve the applicant’s renunciation of Australian citizenship.

……………[sgd]…………….
Deputy President S A Forgie

Catchwords
CITIZENSHIP – review of decision to refuse application to renounce citizenship under s 33 of the Australian Citizenship Act 2007 – whether applicant a national or citizen of a foreign country at time of application – applicant eligible for citizenship by descent under  s 4C of the British Nationality Act 1981 – applicant not registered under s 4C of the British Nationality Act 1981 at time of application – reviewable decision affirmed

Legislation

Australian Citizenship Act 2007; s 12; s 33; s 35

Borders, Citizenship and Immigration Act 2009 (UK) Citizenship Act 1948

British Nationality Act 1948; s 1; s 5; s 12; s 31

British Nationality (No 2) Act 1964 (stateless persons) (UK)

British Nationality Act 1981 (UK); s 4C

British Nationality Act 1981 (Remedial) Order 2019

British Nationality and Status of Aliens Act 1914 (UK)

Citizenship Act 1969

Corrections Act 1986 (Vic); s 74AB

Human Rights Act 1998 (UK)

Immigration Act 1971 (UK)

International Transfer of Prisoners Act 1997; s 2; s 3; s 5; s 10; s 11

Migration Act 1958; s 501; s 501CA

Nationality Act 1920

Nationality and Citizenship Act 1948

Secondary materials
Chambers 21st Century Dictionary, 1999, reprinted 2004, Chambers Hansard, House of Representatives, 30 September 1948

REASONS FOR DECISION

Deputy President S A Forgie

1. Dr Craig Minogue[1] was born in Australia.  On 30 April 2018, applied to the Minister under s 33 of the Australian Citizenship Act 2007 (AC Act) to renounce his Australian citizenship.  Although satisfied of Dr Minogue’s identity, a delegate of the Minister refused Dr Minogue’s application on 22 October 2018.  The delegate did so on the basis that he had failed to provide evidence that he was the national or citizen of a foreign country at the time of his application or that he would be entitled to become the national or citizen of a foreign country should his application for renunciation be approved.  Dr Minogue applied for review of that decision arguing that he is a British citizen so that his application of renunciation must be accepted. 

   [1] Dr Minogue has a PhD awarded by La Trobe University.

1. I have decided to affirm the decision of the Minister but for different reasons.  In my view, Dr Minogue may be entitled to be registered as a British citizen by descent under s 4C of the British Nationality Act 1981 (UK) (1981 Act) but he has not been registered.  He does not acquire British citizenship without registration.  Without registration, I am not satisfied that Dr Minogue is a British citizen (and so a national or a citizen of a foreign country) or that, if I were to approve his renunciation, he would become a British citizen.  Therefore, I am not satisfied that I am required to approve his renouncing his Australian citizenship under s 33(3) as he was not a national or citizen of a foreign country at the time he made the application.  Furthermore, I am forbidden by s 33(7) from approving his renouncing his citizenship. 

1. I note that the character requirements previously set out in s 41A(1) of the 1981 Act that might have led the Secretary of State to refuse to register him as a British citizen when the delegate made the decision under review, are no longer in force.  They ceased to have effect in relation to British citizenship by descent under s 4C with effect from 25 July 2019.  That does not lead me to alter my decision for, under s 33(3), the Minister may not approve a renunciation of Australian citizenship unless satisfied that, among other matters, that the person “… is a national or citizen of a foreign country, at the time the person made the application”.

1. The focus in these proceedings has been on Dr Minogue’s citizenship with the consequence that no regard has been paid to the provisions of s 33(6) of the AC Act.  That section provides:

   “The Minister must not approve the person renouncing is or her Australian citizenship if the Minister considers that it would not be in the interests of Australia to do so.”

Both parties would need to bear that provision in mind if Dr Minogue were registered as a British citizen under s 4C of the 1981 Act and then make a further application to renounce his Australian citizenship.

1. Dr Minogue would also need to bear in mind the provisions of the International Transfer of Prisoners Act 1997 (ITP Act), which commenced operation on 5 June 2002.[2]  It facilitates the transfer of prisoners between Australia and certain countries so that prisoners may serve their sentences of imprisonment in the countries of which they are nationals or have community ties.[3]  A prisoner, other than a Tribunal prisoner,[4] is eligible for transfer from Australia to a transfer country if the prisoner is a national[5] of the transfer country or has community ties with the transfer country.[6]  The United Kingdom is a “transfer country”.  Eligibility for transfer does not, of itself, lead to transfer.  It is only one of the criteria that must be satisfied.[7]  Among those criteria is that Australia and the transfer country have agreed on the transfer and the terms of the transfer[8] and that “appropriate Ministerial consent in writing has been given to transfer on those terms”.[9]  What amounts to “appropriate Ministerial consent” is, in the case of a State prisoner, consent from both the Attorney-General and the State Minister responsible for administering that State’s law relating to the transfer of prisoners.[10] 

[2] ITP Act; s 2(2) The complementary Victorian State legislation is the International Transfer of Prisoners (Victoria) Act 1998.

[3] ITP Act; s 3

[4] A “Tribunal prisoner” is a prisoner serving a sentence of imprisonment imposed by the Former Yugoslavia Tribunal, the Rwanda Tribunal or the International Residual Mechanism for Criminal Tribunals for an offence in relation to which that Tribunal had power to prosecute the person: ITP Act; s 4(1).

[5] A “national” of a country is a person who is a citizen of that country under the law of that country: ITP Act; s 4(1).

[6] ITP Act; s 11

[7] ITP Act; s 10(a)

[8] ITP Act; s 10(b)

[9] ITP Act; s 10(d)

[10] ITP Act; s 5(1)(b) and see also s 4(1)

1. In Dr Minogue’s circumstances, the practical consequences of the ITP Act are that, even if the Minister did not rely on s 33(6) of the AC Act to refuse to approve his renunciation of Australian citizenship, the Victorian Minister may refuse to consent to his transfer to the United Kingdom to serve his life sentence of imprisonment. 

BACKGROUND

1. Dr Minogue contends that, in addition to his being an Australian citizen, he is a citizen of the United Kingdom by descent through both his mother and his father.  He also contends that he is entitled as of right under the law of the United Kingdom to be registered as one of its citizens and is entitled to live and work there.  I have set out his contentions in further detail in the course of these reasons below.

   Dr Minogue’s challenge to his not being granted parole

2. Among other crimes, Dr Craig Minogue has been convicted of the murder of Constable Angela Taylor when he bombed the Russell Street Police Headquarters in Russell Street in Melbourne in 1986.[11]  He was sentenced to life imprisonment with a non-parole period of 28 years.  Although the non-parole period has passed and he has applied for parole, the Corrections Act 1986 (Vic) (Corrections Act) was amended on 1 August 2018 to prescribe that the Adult Parole Board might only make a parole order in respect of Dr Minogue if it:

   “(a)     is satisfied (on the basis of a report prepared by the Secretary to the Department) that the prisoner:

   (i)is in imminent danger of dying or is seriously incapacitated and, as a result, he no longer has the physical ability to do harm to any person; and

   (ii)has demonstrated that he does not pose a risk to the community; and

   (b)is further satisfied that, because of those circumstances, the making of the order is justified.”[12] 

   [11] Other offences of which Dr Minogue has been convicted are: murder (1), intentionally cause serious injury (2), cause explosion to endanger life (2), assault causing actual bodily harm, assault with instrument, unlawful assault, assault police, reckless conduct endangering life, armed with offensive weapon, wilfully damage property (2), criminal damage, armed robbery (5), theft and possession of stolen property.

   [12] Corrections Act; s 74AB(3)

1. Dr Minogue challenged the constitutional validity of s 74AB in the High Court. The High Court held that s 74AB is not invalid and not contrary to Chapter III of the Commonwealth Constitution.[13]  The essence of the decision reached by the plurality is in the following paragraph from their reasons for judgment:

   “          Section 74AB is relevantly indistinguishable from the provision upheld by this Court in Knight v Victoria … [(2017) 261 CLR 306; 91 ALJR 824].  In Knight, the Court refused to reopen and overturn its decision in Crump v New South Wales … [(2012) 247 CLR 1; 86 ALJR 623] The decisions in Knight and Crump compel the conclusion that s 74AB does not alter the plaintiff’s sentence, or impose additional or separate punishment on the plaintiff beyond the punishment imposed by the Supreme Court at the time of sentencing, and does not involve the exercise of judicial power. Section 74AB does no more than alter the conditions to be met before the plaintiff can be released on parole. … [Crump v New South Wales (2012) 247 CLR 1 at [72]; see also at [35], [60], [74]; 86 ALJR 623]  And, contrary to the plaintiff’s alternative submissions, neither Crump nor Knight should now be reopened. …”[14]

   [13] Minogue v Victoria [2019] HCA 31; (2019) 93 ALJR 1031; Kiefel CJ, Bell, Gageler, Keane, Nettle, Gordon and Edelman JJ

   [14] [2019] HCA 31; (2019) 93 ALJR 1031 at [9]; 1035; Kiefel CJ, Bell, Keane, Nettle and Gordon JJ

Why Dr Minogue wishes to renounce his Australian citizenship

1. Although not relevant to my review of the Minister’s decision under s 33 of the AC Act, Dr Minogue’s reasons for his applying to renounce his Australian citizenship give this matter context. In his words, since the High Court upheld the validity of s 74AB of the Corrections Act, he feels that Australian citizenship has become a burden on him and an imposition on him simply because he was born in Australia. Since 1986, he has worked hard to rehabilitate himself from a functionally illiterate, anti-social and violent criminal outsider through the means of education in multicultural comparative studies culminating in a PhD and Certificates IV in Training and Assessment

1. Dr Minogue has brought his application in this case on his understanding that, if his application were to be accepted, he would be immediately granted an ex-citizen’s visa.  The Minister would cancel that visa on “character grounds” i.e. under s 501 of the Migration Act 1958 (Migration Act).  If his visa were cancelled, he would be an unlawful-non citizen and removed from Australia.  Dr Minogue has undertaken that he would not seek to have that decision reviewed and would fully cooperate with any and all processes connected with his deportation from Australia.

Foreign law

1. I have considered the law of the United Kingdom and made findings of fact regarding that law based on the evidence of a number of Acts of its Parliament and a legislative instrument.   I have done so bearing in mind the principles set out by Ryan J in Applicants in V 722 of 2000 v Minister for Immigration and Multicultural Affairs:[15]

   “… It is a trite proposition that the state and effect of the law of a foreign country are questions of fact; see eg Phipson on Evidence, 15th edn p 974.  As such, they are susceptible of proof by expert evidence from a witness suitably qualified to express an opinion about the laws of the relevant foreign State: see eg Re Duke of Wellington[1947] Ch 506 at 514.

   However, it is not necessary for a court or tribunal to resort to expert evidence of that kind in order to make a finding as to the effect of a relevant law of a foreign country.  If, for example, the text of a presumably relevant statute of that country or an authoritative statement in a legal text book or other authority appears to suggest with sufficient precision the effect of the law in question, the court or tribunal is entitled, in the absence of contradictory expert evidence, to make a finding accordingly (Evidence Act (Cth) 1995 s 174(1)).”[16]

LEGISLATIVE BACKGROUND

[15] [2002] FCA 1059 and summarised with approval by Moore J on appeal in VHAJ v Minister for Immigration and Multicultural Affairs [2003] FCAFC 186; (2003) 131 FCR 80; 75 ALD 609 Moore, Kenny and Downes JJ at [11]; 84-85; 612-613

[16] [2002] FCA 1059 at [32]-[33]

Australian Citizenship Act 2007

1. The Preamble to the AC Act states:

   “The Parliament recognises that Australian citizenship represents full and formal membership of the community of the Commonwealth of Australia, and Australian citizenship is a common bond, involving reciprocal rights and obligations, uniting all Australians, while respecting their diversity. 

   The Parliament recognises that persons conferred Australian citizenship enjoy these rights and undertake to accept these obligations:

   (a) by pledging loyalty to Australia and its people; and

   (b) by sharing their democratic beliefs; and

   (c) by respecting their rights and liberties; and

   (d) by upholding and obeying the laws of Australia.”

A.       Becoming an Australian citizen

1. The AC Act sets out how several paths by which a person may become an Australian citizen.  Of relevance in this case is s 12 which provides for a person to become an Australian citizen by birth.  As there is no suggestion that either of Dr Minogue’s parents was an enemy alien or that Australia was under occupation by the enemy at the time of his birth, only s 12(1) is relevant.  It provides:

   “Citizenship by birth

   (1)A person born in Australia is an Australian citizen if and only if:

   (a)a parent of the person is an Australian citizen, or a permanent resident, at the time the person is born; or

   (b)the person is ordinarily resident in Australia throughout the period of 10 years beginning on the day the person is born.”

B.       Ceasing to be an Australia citizen

1. The AC Act sets out ways in which a person may cease to be an Australian citizen but only that prescribed in s 33 is relevant.  It provides:

   “Renunciation by application

   (1)A person may make an application to the Minister to renounce the person’s Australian citizenship.

   Note:Section 46 sets out application requirements (which may include the payment of a fee.)

   Minister’s decision

   (2)The Minister must, by writing, approve or refuse to approve the person renouncing his or her Australia citizenship.

   (3)Subject to this section, the Minister must approve the person renouncing his or her Australian citizenship if the Minister is satisfied that:

   (a)the person is aged 18 or over, and is a national or citizen of a foreign country, at the time the person made the application; or

   (b)the person was born, or is ordinarily resident, in a foreign country and is not entitled, under the law of that country, to acquire the nationality or citizenship of that country because the person is an Australian citizen.

   (4)The Minister must not approve the person renouncing his or her Australian citizenship unless the Minister is satisfied of the identity of the person.

   Note:Division 5 contains the identity provisions.

   (5)The Minister may refuse to approve the person renouncing his or her Australia citizenship if the person:

   (a)is a national or citizen of a foreign country at the time the person made the application; and

   (b)made the application during a war in which Australia is engaged.

   (6)The Minister must not approve the person renouncing his or her Australian citizenship if he Minister considers that it would not be in the interests of Australia to do so.

   (7)The Minister must not approve the person renouncing his or her Australian citizenship unless the Minister is satisfied that the person:

   (a)is a national or citizen of a foreign country immediately before the Minister’s decision on the application; or

   (b)will, if the Minister approves the application, become a national or citizen of a foreign country immediately after the approval.

   Time citizenship ceases

   (8)If the Minister approves a person renouncing his or her Australian citizenship, the person ceases to be an Australian citizen at the time of the approval.

   Note:A child of the person may also cease to be an Australian citizen: see section 36.”

Migration Act 1958

A.       Grant of ex-citizen visa

1. The Migration Act regulates the basis on which those who are not Australian citizens may enter Australia and be present as well as for their departure or deportation. Section 35 provides for those who have ceased to be Australian citizens either before 1 September 1994 or on or after 1 September 1994 and are in the migration zone. The term “migration zone” is defined in s 5(1) but, for the purposes of this case, includes Victoria where Dr Minogue is located.  Section 35(3) provides:

   “A person who, on or after 1 September 1994, ceases to be an Australian citizen while in the migration zone is taken to have been granted an ex-citizen visa when that citizenship ceases.”

1. An ex-citizen visa is a permanent visa entitling its holder to remain in, but not re-enter, Australia.[17]

   [17] Migration Act; s 35(1)

B.       Cancellation of a visa

1. The particular provision in s 501 of the Migration Act, on which Dr Minogue relies, is s 501(3A). Unlike the Minister’s power to cancel a visa under ss 501(2) and (3)(b), the power under s 501(3A) is not a discretionary power and must be exercised when the circumstances it specifies arise. In so far as it is relevant in this case, it provides:

   “The Minister must cancel a visa that has been granted to a person if:

   (a)the Minister is satisfied that the person does not pass the character test because of the operation of:

   (i)paragraph (6)(a) (substantial criminal record), on the basis of paragraph (7)(a), (b) or (c); or

   (ii)…; and

   (b)the person is serving a sentence of imprisonment, on a full-time basis in a custodial institution, for an offence against a law of the Commonwealth, a State or a Territory.”

1. For the purposes of s 501(3A)(a)(i), s 501(7)(b) provides:

   “For the purposes of the character test, a person has a substantial criminal record if:

   (a)       …

   (b)       the person has been sentenced to imprisonment for life;

   (c)-(f)   …”

2. Section 501CA applies when a person’s visa has been cancelled under s 501(3A). The Minister is required to give the person a written notice that includes an invitation to make representations about revoking the decision to cancel the visa i.e. the “original decision”.[18] If the person makes representations in response to the invitation, the Minister may revoke the cancellation decision in one or other of two situations. The first is that the person passes the character test as defined in s 501. As Dr Minogue cannot do that given his sentence of life imprisonment, the Minister may revoke the cancellation if “… there is another reason why the original decision should be revoked.”[19]

   [18] Migration Act; s 501CA(3)

   [19] Migration Act; s 501CA(4)(b)(ii)

C.       Removal from Australia

1. If the Minister had accepted Dr Minogue’s renunciation of his Australian citizenship, Dr Minogue would become an unlawful non-citizen as soon as the Minister had complied with his obligation under s 501(3A) to cancel the ex-citizen visa. He would have that status as he would not hold a visa.[20]  An unlawful non-citizen in the migration zone, which includes the Australian States,[21] must be detained if an officer knows or reasonably suspects that is the case.[22] If an unlawful non-citizen makes a written request to the Minister to be removed, he or she must be removed as soon as reasonably practicable. As Dr Minogue realises, that would not occur until he is released on parole under the Corrections Act. If that were to occur, he would be taken into immigration detention but whether he were removed from Australia is no means certain as he would still be on parole and subject to the directions of the Victorian Adult Parole Board.

   [20] Migration Act; ss 13 and 14

   [21] Migration Act; s 5(1)

   [22] Migration Act; s 189(1)

OUTLINE OF SUBMISSIONS

1. In his submissions, Dr Minogue put forward two bases for claiming that he is a British citizen.  One is through his mother and the other by was by way of his father and “the normative operation of the Australian/UK citizenship law as it has recently been settled in the High Court.”[23]  His reference to the High Court is a reference to its judgment in Re Canavan and Others.[24]  Dr Minogue also referred to a case he had read about and which he understood to decide that divesting Ms Begum of her United Kingdom citizenship was lawful because she was entitled to citizenship by descent in Bangladesh.  He understood that it had been decided by the Immigration Appeals Tribunal of the United Kingdom but had been unable to obtain access to the report of the matter. 

[23] Dr Minogue’s letter dated 21 May 2018; T documents; T1 at 20

[24] R v Canavan [2017] HCA 45, 263 CLR 284, 91 ALJR 1209, 349 ALR 534

1. I think that the case to which he referred is Begum and Special Immigration Appeals Commission[25] (Begum) decided by the Court of Appeal (Civil Division) on appeal from the Special Immigration Appeals Commission (SIAC), which had heard an appeal from the Administrative Court.  On my reading of that judgment, the proceedings turned on whether the SIAC had erroneously approached its task on the basis that it was applying the principles of judicial review rather than making an independent assessment of the issues.  That meant that it had not properly reviewed the Secretary of State’s decision to divest Ms Begum’s United Kingdom citizenship.  The matter was remitted to the SIAC to hear the matter again.  Consequently, its original decision did not stand and the issue of interest to Dr Minogue remains undecided.  I would also make the observation that Begum was decided under the British Nationality Act 1981.  I must take care to decide the issues that affect Dr Minogue in accordance with the AC Act.

   [25] [2020] EWCA Civ 918; King, Flaux and Singh LJJ

1. Dr Minogue has set out details of the places of birth of his parents and grandparents and his understanding of their citizenship.  He has submitted that, through his father, he has been a British citizen since the commencement of the British Nationality Act 1981 (UK)[26] (1981 Act) and, through his mother since 2003 when s 4C was inserted in that legislation.  In the interests of other members of the Minogue family, I have used pseudonyms for those family members in the following table, which is drawn from Dr Minogue’s affidavits sworn on 5 November 2018 and 11 April 2019 and an unsworn affidavit dated 26 April 2018. 

   [26] 11 & 12 Geo 6 Ch 56

Name	Relationship to Dr Minogue	Date of birth	Place of birth	Status	Submission
Mrs Minogue	Mother	1939	United Kingdom	British citizen Holder of Australian Return (Residence) (Class BB) (Resident Return (subclass 155)) Visa (RRV)[27] entitling her to stay indefinitely after each arrival.	Acquired British citizenship by birth in the United Kingdom and s 4C of the 1981 Act permits Dr Minogue to be registered as a British citizen by descent.
Mr Minogue	Father	1938	Sans Souci, New South Wales	Dr Minogue contends that he is a citizen of the United Kingdom	New South Wales was a colony of the King’s dominions so that Mr Minogue was a citizen of the United Kingdom otherwise than by descent.
Mr and Mrs Minogue were married in Sydney in 1962.[28]
Dr Minogue was born in Sydney 1962.[29]					Entitlement to British citizenship under British Nationality Act 1948 (1948 Act)
MGM	Maternal Grandmother	1921	United Kingdom	British citizen	Born in the United Kingdom.
MGF	Maternal Grandfather	Not given	United Kingdom	British citizen	Born in the United Kingdom.
PGM	Paternal Grandmother	1908	Paddling, New South Wales	Dr Minogue contends that she is a citizen of the United Kingdom	New South Wales was a colony of the King’s dominions so that PGM was a citizen of the United Kingdom otherwise than by descent.
PGF	Paternal Grandfather	1905	Silverton, New South Wales	Dr Minogue contends that he is a citizen of the United Kingdom	New South Wales was a colony of the King’s dominions so that PGF was a citizen of the United Kingdom otherwise than by descent.

[27] Visa Grant Notice issued by the Department of Immigration and Border Protection on 2 November 2016: T documents; T5 at 114

[28] Affidavit of Dr Minogue; Exhibit CMO3-A

[29] Affidavit of Dr Minogue; Exhibit CMO3-D

1. On behalf of the Minister, Mr Cuthbert submitted that s 33(7) of the AC Act is not engaged unless either ss 33(1)(a) or (b) is met at the time of Dr Minogue’s application.  The two must be read together.  The Minister does not carry an onus of proof to establish that Dr Minogue does, or does not, hold the citizenship of another country or the he will acquire it.  The submissions analysed the provisions of the 1981 Act and concluded that Dr Minogue did not meet the requirements of British citizenship under s 11.  Section 4C was relevant only in the context of s 33(7).

CONSIDERATION

1. The 1981 Act was passed on 30 October 1981 and came into operation on 1 January 1983.  It remains in force although it has been amended from time to time.  I have had regard to its provisions as they were are currently drafted because the issues I must resolve under ss 33(3) and 33(7) of the AC Act turn on Dr Minogue’s current status as a citizen or national of a foreign country.  I note that there has been an amendment to a relevant provision – s 41A as it relates to s 4C – of the 1981 Act a few weeks after this matter was heard.  For the reasons I give below, I have not thought it necessary to go back to the parties for their submissions as to the effect of that amendment. 

1. I have considered the 1981 Act in both its unamended and amended form.  In my view, however, the 1981 Act should be considered in its amended form in so far s 33(7) is concerned.  That section provides that the Minister must not approve a person’s renouncing his or her Australian citizenship unless satisfied that the person is a national or citizen of a foreign country immediately before the Minister’s decision or would be if the Minister were to approve the renunciation.  In the absence of any indication to the contrary in the AC Act, I am not limited to evidentiary matter at the date of the Minister’s decision for administrative decision-making is a continuum.  Provided the matter is within the purview of those to which regard must or may be had by the decision-maker and by the Tribunal on review, the Tribunal must or may have regard to it.[30]

   [30] Frugtniet v Australian Securities and Investments Commission [2019] HCA 16; (2019) 367 ALR 695; 93 ALJR 629 at [53]; 709; 641 per Bell, Gageler, Gordon And Edelman JJ.

1. The same argument does not apply in relation to s 33(3) for it fixes the time at which Dr Minogue must be a national or citizen of a foreign country i.e. at the time he made his application.  He made it on 26 April 2018.  That was before the amendment of s 41A that was made on 25 July 2019.  The 1981 Act must be considered in its unamended form at that time.

Is Dr Minogue a British citizen or would be become he become a British citizen if his application to renounce Australian citizenship were approved?

A.Section 11 of the British Nationality Act 1981

1. Section 11 of the 1981 Act provides for the acquisition of British citizenship in certain circumstances by a person who was immediately before the commencement of the 1981 Act a citizen of the United Kingdom and Colonies.  Subject to s 11(2), he or she is a British citizen if, immediately before commencement, he or she was a citizen of the United Kingdom and Colonies and had a right of abode in the United Kingdom under the Immigration Act 1971 (1971 Act) (UK).  Section 11(2) is relevant to a person registered as a citizen of the United Kingdom and Colonies under s 1 of the British Nationality (No 2) Act 1964 (stateless persons) (UK).  Dr Minogue is not such a person.

1. Section 51(3)(a)(i) of the 1981 Act is concerned with the meaning of the expression “citizen of the United Kingdom and Colonies”:

   “In any enactment or instrument whatever passed or made before commencement –

   (a)‘citizen of the United Kingdom and Colonies’ –

   (i)in relation to any time before commencement, means a person under the 1948 Act was at that time a citizen of the United Kingdom and Colonies;

   (ii)…”

A.1     The British Nationality Act 1948 as in force immediately before 1 January 1983

1. The 1948 Act was an Act to make provision for British nationality and for citizenship of the United Kingdom and Colonies.  It commenced operation on 1 January 1949.[31]  Section 1(3) provided:

   “Every person who under this Act is a citizen of the United Kingdom and Colonies or who under any enactment for the time being in force in any country mentioned in subsection (3) of this section is a citizen of that country shall by virtue of that citizenship have the status of a British subject.”

Australia is among those countries referred to in s 1(3).  Any person who has the status of a British subject may be known either as British subject or as a Commonwealth citizen.[32]

A.1.1The British Nationality Act 1948 and citizenship of the United Kingdom and Colonies: by birth

[31] 1948 Act; s 34(2)

[32] 1948 Act; s 1(2)

1. Citizenship of the United Kingdom and Colonies was the subject of Part II of the British Nationality Act.  Section 4 made provision for a person born within the United Kingdom and Colonies after the commencement of the legislation.  Subject to qualifications that are not relevant, s 4 provided that “… every person born within the United Kingdom and Colonies after the commencement of this Act shall be a citizen of the United Kingdom and Colonies by birth …”.   Dr Minogue was not born in the United Kingdom.  The word “Colony” is defined in s 32(1) of the 1948 Act as follows:

   “‘Colony’ does not include any country mentioned in subsection (3) of section one of this Act”.

As Australia is a country mentioned in s 1(3), it is not a colony.[33]  Therefore, he was no born in a Colony and did not become a citizen of the United Kingdom and Colonies by birth.

A.1.2The British Nationality Act 1948 and citizenship of the United Kingdom and Colonies: by descent

[33] The other countries are Canada, New Zealand, the Union of South Africa, Newfoundland, India, Pakistan, Southern Rhodesia and Ceylon.  Their relevance is that, under s 1(1), every person who was, under the 1948 Act a citizen of the United Kingdom and Colonies or who was under any enactment in force in a country mentioned in s 1(3) a citizen of that country had, by virtue of that citizenship, the status of a British subject.

1. Section 5 provides for citizenship of the United Kingdom and Colonies by descent.  It provides:

   “(1)     Subject to the provisions of this section, a person born after the commencement of this Act shall be a citizen of the United Kingdom and Colonies by descent if his father is a citizen of the United Kingdom and Colonies at the time of the birth:

   Provided that if the father of such a person is a citizen of the United Kingdom and Colonies by descent only, that person shall not be a citizen of the United Kingdom and Colonies by virtue of this section unless –

   (a)that person is born or his father was born in a protectorate, protected state, mandated territory or trust territory or any place in a foreign country where by treaty, capitulation, grant, usage, sufferance, or other lawful means, His Majesty then has or had jurisdiction over British subjects; or

   (b)that person’s birth having occurred in a place in a foreign country other than a place such as is mentioned in the last foregoing paragraph, the birth is registered at a United Kingdom consulate within one year of its occurrence, or, with the permission of the Secretary of State, later; or

   (c)that person’s father is, at the time of the birth, in Crown service under His Majesty’s government in the United Kingdom; or

   (d)that person is born in any country mentioned in sub-section (3) of section one of this Act in which a citizenship law has then taken effect and does not become a citizen thereof on birth.

   (2)If the Secretary of State so directs, a birth shall be deemed for the purposes of this section to have been registered with his permission notwithstanding that his permission was not so obtained before the registration.”

1. Section 5 requires me to consider whether Dr Minogue’s father was a citizen of the United Kingdom and Colonies at the time of his, Dr Minogue’s, birth in 1962.  Section 5 is not relevant to Mr Minogue’s circumstances as he was not born after the commencement of the 1948 Act on 1 January 1949 but before it in 1939.  The transitional provisions begin with s 12.  Section 12(1) provides:

   “A person who was a British subject immediately before the date of the commencement of this Act shall on that date become a citizen of the United Kingdom and Colonies if he possesses any of the following qualifications, that is to say –

   (a)that he was born within the territories comprised at the commencement of this Act in the United Kingdom and Colonies, and would have been such a citizen is section four of this Act had been in force at the time of his birth;

   (b)that he is a person naturalised in the United Kingdom and Colonies;

   (c)that he became a British subject by reason of the annexation of any territory included at the commencement of this Act in the United Kingdom and Colonies.”

1. Putting aside for the moment whether or not Mr Minogue was a British subject, he did not possess any of the qualifications specified in s 12(1).  As Australia was not a Colony for the purposes of the 1948 Act, he was not born within the territories of the United Kingdom and Colonies and so would not have been a citizen had s 4 of that Act been in force.  On the evidence that I have, Mr Minogue was not naturalised in the United Kingdom and Colonies and he did not become a British subject by reason of the annexation of any territory included, as at 1 January 1949, in the United Kingdom and Colonies.

1. Section 12(2) provides for acquisition of citizenship of the United Kingdom and Colonies by descent when it provides:

   “A person who was a British subject immediately before the date of the commencement of this Act shall on that date become a citizen of the United Kingdom and Colonies if at the time of his birth his father was a British subject and possessed of any of the qualifications specified in the last foregoing subsection.”

1. Again putting aside the issue of whether Mr Minogue was a British subject on 1 January 1949 and assuming for the moment that his father, PGF, was British subject at the time he, Mr Minogue, was born, PGF did not possess any of the qualifications specified in s 12(1).  PGF was born in New South Wales.  Neither it nor Australia, of which it is a part, was a Colony on 1 January 1949 and so not a territory comprised within the United Kingdom and Colonies.  I have no evidence that PGF was naturalised in the United Kingdom and Colonies or that he became a British subject by reason of the annexation of any territory included, as at 1 January 1949, in the United Kingdom and Colonies. 

1. The same reasoning leads me to conclude that Mr Minogue does not acquire citizenship of the United Kingdom and Colonies under s 12(3) as he was not born within the territory comprised at 1 January 1949 in a protectorate, protected state or United Kingdom trust territory.

1. Section 12(4) is a “catch all” provision but again subject to qualifications when it provides:

   “A person who was a British subject immediately before the date of the commencement of this Act and does not become a citizen of the United Kingdom and Colonies by virtue of any of the foregoing provisions of this section shall on that date become such a citizen unless –

   (a)he is then a citizen of any country mentioned in sub-section (3) of section one of this Act under a citizenship law having effect in that country, or a citizen of Eire; or

   (b)he is then potentially a citizen of any country mentioned in subsection (3) of section one of this Act.”

1. It now becomes relevant to ask whether Mr Minogue was a British subject immediately before 1 January 1949.  That question is answered by reference to the British Nationality and Status of Aliens Act 1914 (UK) (1914 Act) as in force immediately before 1 January 1949.  Section 1(1)(a) provided that “Any person born within His Majesty’s dominions and allegiance” “… shall be deemed to be natural-born British subjects”.  Mr Minogue was born in New South Wales in Australia and so in one of His Majesty’s dominions.  A “natural-born British subject” is a “British subject”.[34]

   [34] 1914 Act; s 27(1)

1. I note that the definition of a “British subject” in the United Kingdom legislation is mirrored in the Nationality Act 1920 (N1920 Act), which came into operation on 1 January 1921.  First, the definition of that expression is in the same terms and s 6(1)(a) is drafted in the same terms as s 1(1)(a) of the 1914 Act.[35]  That meant that Mr Minogue was a British subject when he was born in 1938 and retained that status immediately before 1 January 1949.  Subject to the exceptions specified in s 12(4) of the 1948 Act, Dr Minogue met the criterion in s 12(4).

   [35] N1920 Act; s 5(1)

1. The exceptions were that he was neither a citizen, nor potentially a citizen, of a country mentioned in s 1(3).  Those countries included Australia.  At the time, Australia did not have legislation dealing with citizenship.  That was not to happen until a few weeks later on 16 January 1949 when the Nationality and Citizenship Act 1948 (NC1948 Act) (later known as the Citizenship Act 1948[36]) came into operation on 26 January 1949.[37]  That means that I must look to the Nationality Act 1920 (N1920 Act), which was in operation on 1 January 1949 and only repealed with effect from 26 January 1949.[38]  Mr Minogue was not a citizen under the N1920 Act as it did not provide for citizenship. 

[36] Citizenship Act 1969; s 1(3)

[37] Except for s 9, the NC1948 Act came into operation on the day of Royal Assent i.e. 26 January 1949

[38] NC1948 Act; s 3 and First Schedule

1. That leaves the issue whether he was “then potentially a citizen of any country mentioned in subsection (3) of section one of this Act” i.e. Australia in the circumstances of this case.  Australian citizenship was first provided for by the NC1948 Act.  It did so in Part II but Mr Minogue did not acquire Australian citizenship under that Part because he had been born before 1949 and did not acquire it by birth under s 10 or otherwise. 

1. Part IV set out transitional provisions that did relate to a person in Mr Minogue’s circumstances.  Under s 25(1)(a) of the NC1948 Act:

   “A person who was a British subject immediately prior to the date of commencement of this Act shall, on that date, become an Australian citizen if –

   (a)he was born in Australia and would have been an Australian citizen if section ten of this Act had been in force at the time of his birth;

   (b)-(d) …”

1. Section 10 provided that a person born in Australia after the commencement of the NC1948 Act shall be an Australian citizen.  Mr Minogue was born in Australia and met the requirements of s 25(1)(a).  Therefore, as from 26 January 1949, he was an Australian citizen by operation of the law set out in s 25(1)(a).  Can he be said, on 31 December 1948, to be “then potentially a citizen of …” Australia as prescribed in the 1948 Act (emphasis added)?  It seems to me that he can.  The word “then” used in s 12(4)(b) must be a reference to the time “immediately before the date of the commencement of this Act” as used in the opening words to the section.  What is “potentially” so is what is “possible or likely, though as yet not tested or actual” i.e. what was “potentially” so.[39] 

[39] Chambers 21st Century Dictionary, 1999, reprinted 2004, Chambers (Chambers)

1. The NC1948 Act had already passed both Houses of the Australian Parliament and had, on 21 December 1948, received the Royal Assent.  Section 2 provided that it was to come into operation on a date to be fixed by Proclamation.  That Proclamation was made on 20 January 1949 and published on page 1987 of the Commonwealth of Australia Gazette No. 8 of 1949 on 24 January 1949.  In his Second Reading Speech, Mr Arthur Calwell, then the Minister for Information and the Minister for Immigration, set out the history of the Bill.  That history shows that the NC1948 Act had its genesis in an agreement between the government of the United Kingdom and the governments of those members of the Commonwealth named in s 1(3) of the 1948 Act that they would, as self-governing Dominions and free and independent nations equal in status to the United Kingdom, provide for their own citizenship while preserving the status of a common nationality amongst all of them.  Mr Calwell stated in his Second Reading Speech given on 30 September 1948 that “When this bill becomes an act, it will be proclaimed on Australia Day, the 26^th of January 1949 …”.[40]

   [40] Hansard, House of Representatives, 30 September 1948, at 1065

1. In view of the history of the NC1948 Act, I have decided that Mr Minogue was, on 31 December 1948, likely, if not certain, to become an Australian citizen on 26 January 1948 when that Act came into operation.  Therefore, he was, immediately before the commencement of the 1948 Act on 1 January 1949, “potentially a citizen of” Australia as provided for in s 12(4)(b) of the 1948 Act.  Consequently, he was not able to become a citizen of the United Kingdom and Colonies by means of s 12(4).

1. It follows that Mr Minogue was not a citizen of the United Kingdom and Colonies under s 12 of the 1948 Act at any time and not, in particular, at the time of his son’s birth.  Therefore, Dr Minogue is unable to satisfy the requirements prescribed by s 5 of the 1981 Act and cannot claim to be a citizen of the United Kingdom and Colonies by descent through his father.

1. Before leaving this section of my reasons, I note that Dr Minogue referred to a right to be registered.  If he was referring to s 5(1)(b) of the 1948 Act, it does not become relevant in view of my conclusion that Dr Minogue’s father was not a citizen of the United Kingdom and Colonies.  Even if it were, I would note that Dr Minogue’s birth did not occur in a “foreign country other than a place such as is mentioned in the last foregoing paragraph …” i.e. certain protectorates.  The expression “foreign country” is defined in s 32(1) of the 1948 Act to mean:

   “… a country other than the United Kingdom, a colony, a country mentioned in subsection (3) of section one of this Act, Eire, a protectorate, a protected state, a mandated territory and a trust territory”.

It follows that Australia was not regarded as a foreign country.  Therefore, registration of his birth was not an option either within the first year after or his birth or, with the Secretary of State’s permission, under s 5(2) at some later date.

B.       Section 4C of the British Nationality Act 1981

1. Dr Minogue relies on s 4C of the 1981 Act.  Section 4C(1) provides:

   “A person is entitled to be registered as a British citizen if –

   (a)he applies for registration under this section, and

   (b)he satisfies each of the following conditions.”

2. Three conditions are specified.  The first is that the applicant was born before 1 January 1983.[41]  The second condition is set out in s 4C(3) and is:

   “… that the applicant would at some time before 1^st January 1983 have become a citizen of the United Kingdom and Colonies –

   (a)under section 5 of, or paragraph 3 of Schedule 3 to, the 1948 Act if assumption A had applied,

   (b)under section 12(3), (4) or (5) of that Act if assumption B had applied and as a result of its application the applicant would have been a British subject immediately before 1^st January 1949, or

   (c)under section 12(2) of that Act if one or both of the following had applied –

   (i)assumption A had applied;

   (ii)assumption B had applied and as a result of its application the applicant would have been a British subject immediately before 1^st January 1949.”

   [41] 1981 Act; s 4C(2)

1. Only Assumption A is relevant.  It is that:

   “(a)     section 5 or 12(2) of, or paragraph 3 of Schedule 3 to, the 1948 Act (as the case may be) provided for citizenship by descent from a mother in the same terms as it provided for citizenship by descent from a father, and

   (b)references in that provision to a father were references to the applicant’s mother.”[42]

   [42] 1981 Act; s 4C(3A)

1. Regard must be had to s 4C(5) when applying Assumption A:

   “For the purposes of the interpretation of section 5 of the 1948 Act in its application in the case of assumption A to a case of descent from a mother, the reference in the proviso to subsection (1) of that section to ‘a citizen of the United Kingdom and Colonies by descent only’ includes a reference to a female of person who became a citizen of the United Kingdom and Colonies by virtue of –

   (a)section 12(2), (4) or (6) only of the 1948 Act,

   (b)section 13(2) of that Act,

   (c)paragraph 3 of Schedule 3 to that Act, or

   (d)section 1(1)(a) or (c) of the British Nationality (No. 2) Act 1964.”

1. The third condition is that:

   “… immediately before 1^st January 1983 the applicant would have had the right of abode in the United Kingdom by virtue of section 2 of the Immigration Act 1971
   

   [43] 1981 Act; s 4C(4)

   (c. 77) had he become a citizen of the United Kingdom and Colonies as described in subsection (3) above.”[43]

2. Although no reference is made to it in s 4C and it was not included in the 1981 Act as passed, reference must also be had to s 41A.  It was inserted in the 1981 Act by the Borders, Citizenship and Immigration Act 2009 (UK) (BCI Act 2009).  At that time of the hearing, s 41A(1) provided:

   “An application for registration of an adult or young person as a British citizen under section 1(3), (3A) or (4), 3(1), (2) or (5), 4(2) or (5), 4A, 4C, 4D, 4F, 4G, 4H, 4I, 5, 10(1) or (2) or 13(1) or (3) must not be granted unless the Secretary of State is satisfied that the adult or young person is of good character.”[44]

   [44] BCI Act; s 47

1. Since 25 July 2019, s 41A(1) has omitted any reference to s 4C, as well as to ss 4D, 4F, 4G, 4H, 4I, when it was amended by Article 2(2) of the British Nationality Act 1981 (Remedial) Order 2019 (Remedial Order 2019).  That order was made on 24 July 2019 and came into force on 25 July 2019.  It was made under s 10(2)[45] and Schedule 2 to the Human Rights Act 1998 (UK) (HR Act) after a declaration had been made under s 4 of that legislation that the good character test under s 41A of the 1981 Act was incompatible with the Convention[46] in so far as it applied to applications for registration as a British citizen under, among others, s 4C(5). 

   [45] “If a Minister of the Crown considers that there are compelling reasons for proceeding under this section, he may by order make such amendments to the legislation as he considers necessary to remove the incompatibility.”: HR Act; s 10(2) and see also the necessary precursors to the exercise of power in Schedule 2.

   [46] Convention for the Protection of Human Rights and Fundamental Freedoms, agreed by the Council of Europe at Rome on 4th November 1950 as it has effect for the time being in relation to the United Kingdom: HR Act; s 21(1)

2. The practical outcome of the amendment effected by the Remedial Order 2019 is that, as at 25 July 2019, an application for registration for British citizenship under s 4C was not subject to the Secretary of State’s being satisfied that the adult or young person is of good character.

B.1     Application of first condition: born before 1 January 1983

1. Dr Minogue meets that condition as he was born in 1962.

B.2     Application of second condition: section 5 of the 1948 Act

1. Showing the changes made by Assumption A in square brackets, s 5 of the 1948 Act reads:

   “(1)     Subject to the provisions of this section, a person born after the commencement of this Act shall be a citizen of the United Kingdom and Colonies by descent if his father [mother] is a citizen of the United Kingdom and Colonies at the time of the birth:

   Provided that if the father [mother] of such a person is a citizen of the United Kingdom and Colonies by descent only, that person shall not be a citizen of the United Kingdom and Colonies by virtue of this section unless –

   (a)that person is born or his father [or mother] was born in a protectorate, protected state, mandated territory or trust territory or any place in a foreign country where by treaty, capitulation, grant, usage, sufferance, or other lawful means, His Majesty then has or had jurisdiction over British subjects; or

   (b)that person’s birth having occurred in a place in a foreign country other than a place such as is mentioned in the last foregoing paragraph, the birth is registered at a United Kingdom consulate within one year of its occurrence, or, with the permission of the Secretary of State, later; or

   (d)that person is born in any country mentioned in sub-section (3) of section one of this Act in which a citizenship law has then taken effect and does not become a citizen thereof on birth.

   (2)If the Secretary of State so directs, a birth shall be deemed for the purposes of this section to have been registered with his permission notwithstanding that his permission was not obtained before the registration.”

2. Dr Minogue meets the first requirement of s 5(1) because he was born in 1962 and so after the commencement of the 1948 Act.    Having regard to Assumption A, the second requirement is that his mother was a citizen of the United Kingdom and Colonies at the time of his birth.  As she was born in 1939 and so before the 1948 Act, Dr Minogue’s mother did not obtain citizenship under that legislation.  Provision is made for a person in her circumstances in the transitional provisions of the 1948 Act.  Section 12(2) provides:

   “A person who was a British subject immediately before the date of the commencement of this Act shall on that date become a citizen of the United Kingdom and Colonies if at the time of his birth his father [mother] was a British subject and possessed of the qualifications specified in the last foregoing subsection.”

1. The reference to the qualifications in the last foregoing subsection is a reference to those set out in ss 12(1)(a) to (c):

   “(a)     that he was born within the territories comprised at the commencement of this Act in the United Kingdom and Colonies, and would have been such a citizen if section four of this Act had been force at the time of his birth;

   (b)that he is a person naturalised in the United Kingdom and Colonies;

   (c)that he is a British subject by reason of the annexation of any territory included at the commencement of this Act in the United Kingdom and Colonies.”

1. On the basis of Dr Minogue’s birth certificate, I find Mrs Minogue was born in Coventry, England.[47]  It follows that she was born within the territories comprised in the United Kingdom and Colonies.  She would have been a citizen of the United Kingdom and Colonies under s 4 of the 1948 Act had it been in force at the time of her birth.  She was also a British subject because, when she was born, the 1914 Act was in force and she was born within His Majesty’s dominions and allegiance.  That meant that she was a British subject within the meaning of s 1(1)(a) of that legislation. 

   [47] T documents; T4 at 101

1. It follows that Dr Minogue would have become, at the time of his birth in 1962, a citizen of the United Kingdom and Colonies by descent because his mother was a citizen of the United Kingdom and Colonies.  He would have done so under s 5 of the 1948 Act as if assumption A in s 4C(3A) had applied.  That means that he is a person who meets the second criterion specified in s 4C(3) for registration by descent.

1. Does he meet the third criterion set out in s 4C(4)?  That is to say, would he, immediately before 1 January 1983, have had the right of abode in the United Kingdom by virtue of s 2 of the 1971 Act had be become a citizen of the United Kingdom and Colonies as described in s 3C(3)?    The answer to that question would seem to be that he would have by virtue of s 2(1) of the 1971 Act.  It provides:

   “A person is under this Act to have the right of abode in the United Kingdom if –

   (a)he is a citizen of the United Kingdom and Colonies who has that citizenship by his birth, adoption, naturalisation or (except as mentioned below) registration in the United Kingdom or in any of the Islands.”

1. The exceptions referred to in s 2(1) in relation to citizenship of the United Kingdom and Colonies by descent do not apply in Dr Minogue’s case. He would appear to meet the third criterion in s 4C of the 1981 Act and so appear to be entitled to apply for registration under that section. As I said at [56]-[57] above, there is no longer a requirement that he pass the good character test.

DECISION

1. Even though I have found that Dr Minogue would be entitled to be registered as a British citizen under s 4C of the 1981 Act, he has not in fact been registered.  Therefore, he is not a British citizen until he is registered.  Consequently, I am not satisfied that Dr Minogue is a national or citizen of a foreign country at the time he made his application for the purposes of s 33(3) or currently for the purposes of s 33(7).  I affirm the decision made by a delegate of the Minister refusing his application under s 33.

I certify that the preceding sixty six (66) paragraphs are a true copy of the reasons for the decision herein of Deputy President SA Forgie

...................[sgd]....................................................

Associate

Date of decision:                   9 September 2020

Heard:

Applicant’s Advocate:

Respondent’s Solicitor:

3 June 2019

Self-represented

Mr Neil Cuthbert
Clayton UTZ