NICKY v Minister for Immigration

[2014] FCCA 2569

FEDERAL CIRCUIT COURT OF AUSTRALIA

NICKY v MINISTER FOR IMMIGRATION [2014] FCCA 2569

Catchwords:
CITIZENSHIP – Australian Citizenship Act 1948 – Australian Citizenship Act 2007 – provisos to operation of legislative provisions deeming abandoned child to be an Australian citizen – periods of operation of the Australian Citizenship Acts.

Legislation:

Australian Citizenship Act 2007, ss.4, 11A, 12, 13, 14, 15, 37

Australian Citizenship Act 1948, ss.5, 10
Administrative Decisions (Judicial Review) Act1977, s.5
Australian Citizenship (Transitionals and Consequentials) Act 2007, item 2 of sch.2

Applicant: NICKY

Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

File Number: SYG 1738 of 2014

Judgment of: Judge Cameron

Hearing date: 22 September 2014

Date of Last Submission: 22 October 2014

Delivered at: Sydney

Delivered on: 12 November 2014

REPRESENTATION

Counsel for the Applicant: Mr L. Karp

Solicitors for the Applicant: Alim Lim & Partners

Counsel for the Respondent: Mr T. Reilly

Solicitors for the Respondent: Australian Government Solicitor

ORDERS

1. The application be dismissed.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 1738 of 2014

NICKY

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

Respondent

REASONS FOR JUDGMENT

Introduction

1. On 1 April 2014 the applicant lodged an application with the Department of Immigration and Border Protection requesting evidence of Australian citizenship. The applicant claimed that he was an Australian citizen by virtue of s.14 of the Australian Citizenship Act 2007 (“2007 Act”) because he had been found abandoned as a child in Australia on 10 February 2002.  On 14 April 2014 a delegate of the respondent (“Minister”) refused the applicant’s application on the basis that she was not satisfied that he was an Australian citizen.  The applicant then sought an internal review of that decision and on 18 June 2014 a second ministerial delegate also refused to issue the applicant with evidence of Australian citizenship because he was not satisfied that the applicant was an Australian citizen.

2. On 25 June 2014 the applicant commenced this proceeding seeking relief under the Administrative Decisions (Judicial Review) Act1977 (“ADJR Act”) in respect of the second delegate’s decision. He seeks:

   a)an order quashing or setting aside the second delegate’s decision;

   b)an order that s.14 of the 2007 Act applies to him, or alternatively that s.5(3)(b) of the Australian Citizenship Act 1948 (“1948 Act”), as at 10 February 2002, applied to him; and

   c)an order directing the Minister to give him a notice under s.37(2) of the 2007 Act stating that he is an Australian citizen, or alternatively, an order remitting the matter to the Minister to be determined according to law.

3. For the reasons which follow, the application will be dismissed.

Relevant legislation

1. Section 5(1) of the ADJR Act relevantly provides:

   5   Applications for review of decisions

   (1)A person who is aggrieved by a decision to which this Act applies that is made after the commencement of this Act may apply to the Federal Court or the Federal Circuit Court for an order of review in respect of the decision on any one or more of the following grounds:

   …

   (f)that the decision involved an error of law, whether or not the error appears on the record of the decision; …

2. At the time of the applicant’s claimed abandonment, the 1948 Act was still in force.  It relevantly provided:

   5   Interpretation

   …

   (3)     For the purposes of this Act:

   …

   (b)a person who, when a child, was found abandoned in Australia shall, unless and until the contrary is proved, be deemed:

   (i)     to have been born in Australia;

   …

   (iii)   if born on or after 6 May 1966 and before the day on which the Australian Citizenship Amendment Act 1986 comes into operation—to have been, at the time of birth, a person to whom subsections 10(2) and (3) of this Act, as in force at that time, did not apply; …

   10     Citizenship by birth

   (1)Subject to this section, a person born in Australia after the commencement of this Act shall be an Australian citizen.

   (2)Subject to subsection (3), a person born in Australia after the commencement of the Australian Citizenship Amendment Act 1986 shall be an Australian citizen by virtue of that birth if and only if:

   (a)a parent of the person was, at the time of the person’s birth, an Australian citizen or a permanent resident; or

   (b)the person has, throughout the period of 10 years commencing on the day on which the person was born, been ordinarily resident in Australia.

   (3)Subject to subsection (5), a person shall not be an Australian citizen by virtue of this section if, at the time of the person’s birth, a parent of the person was an enemy alien and the birth occurred in a place then under occupation by the enemy.

   …

3. At the time the applicant sought evidence of the Australian citizenship which he alleged he had acquired, the 2007 Act had replaced the 1948 Act.  Section 37 of the 2007 Act relevantly provides:

   37         Evidence of Australian citizenship

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

   Notice

   (2)The Minister may give the person a notice stating that the person is an Australian citizen at a particular time.

   …

4. “Australian citizen” is defined in s.4 of the 2007 Act which provides:

   4   Australian citizen

   (1)For the purposes of this Act, Australian citizen means a person who:

   (a)is an Australian citizen under Division 1 or 2 of Part 2; or

   (b)     satisfies both of the following:

   (i)     the person was an Australian citizen under the Australian Citizenship Act 1948 immediately before the commencement day;

   (ii)     the person has not ceased to be an Australian citizen under this Act.

   Citizenship under the old Act

   (2)If, under this Act, it is necessary to work out if a person was an Australian citizen at a time before the commencement day, work that out under the Australian Citizenship Act 1948 as in force at that time.

5. Division 1 of pt.2 of the 2007 Act relevantly provides:

   Division 1 - Automatic acquisition of Australian citizenship

   11ASimplified outline

   The following is a simplified outline of this Division:

   The most common way you become an Australian citizen under this Division is by being born in Australia and by having a parent who is an Australian citizen or a permanent resident at the time of your birth.

   There are some other, less common, ways of becoming an Australian citizen under this Division. These cover:

   ·citizenship by being born in Australia and by being ordinarily resident in Australia for the next 10 years: see section 12; and

   ·citizenship by adoption: see section 13; and

   ·citizenship for abandoned children: see section 14; and

   ·citizenship by incorporation of territory: see section 15.

   12         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.

   …

   13         Citizenship by adoption

   A person is an Australian citizen if the person is:

   (a)adopted under a law in force in a State or Territory; and

   (b)adopted by a person who is an Australian citizen at the time of the adoption or by 2 persons jointly at least one of whom is an Australian citizen at that time; and

   (c)present in Australia as a permanent resident at that time.

   14         Citizenship for abandoned children

   A person is an Australian citizen if the person is found abandoned in Australia as a child, unless and until the contrary is proved.

   15         Citizenship by incorporation of Territory

   (1)     A person is an Australian citizen if:

   (a)     any territory becomes a part of Australia; and

   (b)the person is included in a class of persons specified in a determination under this section.

   Determination

   (2)The Minister may, by legislative instrument, determine that specified classes of persons are Australian citizens from a specified day because of their connection with that territory.

   Day citizenship begins

   (3)     The person becomes an Australian citizen on that day.

   When instrument takes effect

   (4)Despite subsection 12(2) of the Legislative Instruments Act 2003, the instrument may be expressed to take effect before the date it is registered under that Act.

6. Division 2 of pt.2 of the 2007 Act had no relevance to the applicant’s circumstances.

Background facts

Immigration history

1. The applicant was born in Indonesia in September 1985. On 18 November 2001, when he was sixteen years old, he and his mother arrived in Australia on tourist visas.  On 10 February 2002 the applicant’s mother was deported from Australia after her visa was cancelled because she had been found working in breach of her visa’s conditions. 

2. After their arrival, and while their tourist visas were still valid, the applicant and his mother lodged an application for protection visas.  That application was refused on 25 June 2002 and the refusal decision was affirmed by the Refugee Review Tribunal on 27 May 2003.  On 3 July 2003 the applicant’s bridging visa associated with his protection visa application ceased and he remained in Australia as an unlawful non-citizen until he was detained on 29 January 2014.  On 6 February 2014 the applicant lodged a second protection visa application.

First delegate

1. As already noted, on 1 April 2014 the applicant lodged an application seeking evidence of Australian citizenship.  In a covering letter accompanying the application the applicant’s representatives submitted that the applicant was an Australian citizen pursuant to s.14 of the 2007 Act because he had been abandoned by his mother in Australia when he was a child of sixteen years.  In a statutory declaration given in support of his application the applicant declared that:

   a)he arrived in Australia with his mother on 18 November 2001 when he was sixteen years old.  He and his mother had been persecuted in Indonesia and his mother had brought him to Australia to escape their terrible life in Indonesia;

   b)after three months in Australia his mother was placed in immigration detention, following which she decided to return to Indonesia;

   c)although he asked his mother to take him back with her, she refused and told him that he would be better off in Australia and that he should seek the assistance of the minister at their church;

   d)after his mother left Australia he lost contact with her until 2010 when he found out she was sick.  She later died.  He had never met his father and did not know where he was; and

   e)his mother did not support him after her departure from Australia and he relied instead on the assistance of his church. 

2. The applicant also relevantly provided:

   a)his birth certificate which recorded that he had been born in Indonesia in September 1985; and

   b)a copy of his passport issued by the Indonesian government showing his place of birth in Indonesia and his nationality as Indonesian.

3. On 14 April 2014 the first delegate refused the applicant’s application because she found that he was not an Australian citizen.  Relevantly, the first delegate found that at the time the applicant claimed that he had been abandoned the 1948 Act had been in force and she specifically referred to s.5(3)(b) of that Act which she noted provided that a child found abandoned in Australia was deemed to have been born in Australia until the contrary was proved.  The first delegate found that the applicant’s Indonesian birth certificate and passport, which both stated that he had been born in Indonesia, clearly proved that he had not been born in Australia and was therefore not an Australian citizen by the operation of s.5(3)(b) of the 1948 Act.

Second delegate

1. The applicant sought internal review of the first delegate’s decision and in a letter dated 22 April 2014 his representatives submitted that the 1948 Act did not apply to him and that his claim had to be determined under the 2007 Act.  It was submitted that by virtue of s.14 of the 2007 Act the applicant was prima facie an Australian citizen unless it was proven that he had not been abandoned.

2. On 18 June 2014 the second delegate also refused the application because he found that the applicant was not an Australian citizen.  In reaching this decision the second delegate:

   a)noted but rejected the applicant’s representatives’ submission that the 1948 Act did not apply to the applicant.  The second delegate found that s.4 of the 2007 Act made it clear that the 1948 Act operated until the introduction of the 2007 Act and governed a person’s citizenship status at the time of the commencement of the 2007 Act.  He referred to s.4(2) of the 2007 Act, which provides that if it is necessary to determine whether a person was an Australian citizenship at a time before the commencement of the 2007 Act, that is to be worked out by reference to the 1948 Act as in force at the relevant time.  The second delegate therefore found that in order to determine whether the applicant was an Australian citizen on the ground of abandonment, his claim had to be considered by reference to s.5 of the 1948 Act;

   b)accepted that the applicant had been found abandoned in Australia on or about 10 February 2002 when his mother was removed from Australia.  However, the second delegate found that the applicant’s passport and his birth certificate were credible evidence that he had been born in Indonesia.  Consequently, he was satisfied that the applicant was not born in Australia and that he was not an Australian citizen under the abandoned child provision of s.5(3) of the 1948 Act;

   c)noted the applicant’s representatives’ submission that s.14 of the 2007 Act meant that a person found abandoned in Australia as a child was an Australian citizen unless and until it was proven that they were not abandoned but found that s.5(3) of the 1948 Act was relevant to the applicant’s circumstances, not s.14 of the 2007 Act.  Further in that connection the second delegate did not accept that s.5(3) of the 1948 Act meant that the applicant was an Australian citizen unless and until it was proven that he had not been found abandoned.  Rather, he found that the subsection meant that a person found abandoned in Australia as a child was deemed to have been born in Australia unless and until it was proven that he or she had not been born in Australia.  The second delegate referred to the history of the abandoned child provision in the 1948 Act and found that it had been concerned chiefly with preventing the statelessness of children and that where the birthplace of a child was determined as being outside Australia, the protection offered by s.5 of the 1948 Act did not apply and the child was not deemed to be an Australian citizen.

Proceeding in this Court

1. In his amended application the applicant alleged:

   1.The decision involved an error or errors of law within the meaning of s.5(1)(f) of the Administrative Decisions (Judicial Review) Act, 1977 (Cwth).

   Particulars

   (a)The delegate erred in finding that section 14 of the Australian Citizenship Act 2007 was not relevant to the applicant’s application.

   (b)Having found that the applicant was found abandoned in Australia on 10 February 2002 when he was 16 years of age, the delegate erred in failing to find that ss. 4(1)(a) and 14 of the Australian Citizenship Act, 2007 applied to the applicant with the effect that he is an Australian citizen.

   (c)Alternatively to Particulars (a) and (b) above, if s. 14 of the Australian Citizenship Act 2007 did not or does not apply to the applicant, the delegate erred in finding that s. 4(1)(b) of the Australian Citizenship Act, 2007 and s. 5(3)(b) of the  Australian Citizenship Act, 1948 did not apply to him.

   Further Particulars

   (i)     Error in construing the words, “until the contrary is proved” in s. 5(3)(b) to apply to the child’s birth in Australia, rather to than his or her abandonment as a child in Australia.

2. The applicant’s case had two elements.  The first was that the second delegate erred in finding that s.14 of the 2007 Act was not relevant to his application and the second was that, assuming that s.14 did not apply,  the second delegate misapplied s.5(3) of the 1948 Act in finding that that Act had not conferred Australian citizenship on him.  It is convenient to deal with the second argument first.

1948 Act

1. If s.5(3)(b) of the 1948 Act applied to a person, it deemed that person to have been born in Australia and to meet the criteria for Australian citizenship by birth.  Had the second delegate found that the applicant had acquired Australian citizenship under that provision, s.4(1)(b) of the 2007 Act would have recognised and perpetuated that citizenship upon the repeal of the 1948 Act. 

2. However, although the second delegate did find that the applicant had been abandoned in Australia, he also found that the applicant had been born in Indonesia and that consequently “the contrary” of s.5(3)(b)(i) had been proved.  The second delegate therefore found that s.5(3)(b) of the 1948 Act did not apply to the applicant with the consequence that he was not a citizen of Australia under that Act.

3. The applicant submitted that that decision was affected with error, arguing that:

   The issue here is whether “the contrary” which must be proved is the abandonment, or the fact of birth in Australia.

   He submitted that the second delegate should have considered whether his abandonment had been disproved, not whether his deemed birth in Australia had been disproved.

4. In his reasons for decision the second delegate referred to the Convention on the Reduction of Statelessness 1961 (“Convention”) which relevantly states:

   Article 2

   A foundling found in the territory of a Contracting State shall, in the absence of proof to the contrary, be considered to have been born within that territory of parents possessing the nationality of that State.

   The applicant submitted that the purpose of s.5(3)(b) was to give a home and citizenship to foundlings and argued that the second delegate’s approach would permit an orphan foundling born in a country other than Australia to be denied Australian citizenship even if he or she would not be entitled to citizenship in his or her country of birth, which he contended was possible.  He submitted that an interpretation of s.5(3)(b) which produced such an outcome was not one which gave effect to the purpose of the provision.

5. This reliance on the purported purpose of s.5(3)(b) arose out a perceived ambiguity in the paragraph’s wording.  However, I do not agree that it is ambiguous.  Section 5(3)(b) was in two parts.  The first, and the condition precedent to its operation, was the fact of the abandonment of a child.  The second part set out the consequences of that child being abandoned, namely a deeming of the circumstances of its birth as ones which attracted Australian citizenship.  A set of facts which is merely deemed to exist is susceptible of being disproved, which is the possibility which the second part of the paragraph recognised.  That is to say, the expression “unless and until the contrary is proved” qualifies the verb structure “shall … be deemed” in which it sits, not the words “was found abandoned” appearing earlier in the paragraph. 

6. However, even if the paragraph is better viewed as ambiguous, I conclude that the Convention does not support the applicant’s submissions concerning it.  The paragraph closely reflects the words and structure of art.2 of the Convention which clearly refers to a rebuttable presumption concerning the circumstances of a foundling’s birth, those circumstances being ones which would usually confer citizenship.  The Convention intended to confer on foundlings a citizenship which would be lost if the deemed circumstances of the child’s birth, which would confer such citizenship, were disproved.  The conclusion I have reached concerning the construction of s.5(3)(b) of the 1948 Act is that it reflects and implements art.2’s rebuttable presumption concerning a foundling’s nationality.

1. I therefore find that the second delegate did not misinterpret s.5(3)(b) or err in concluding that the applicant was not a citizen of Australia under the 1948 Act. 

2007 Act

1. Citizenships acquired under the 1948 Act and perpetuated by s.4(1)(b) of the 2007 Act are deemed by item 2(2) of sch.3 to the Australian Citizenship (Transitionals and Consequentials) Act 2007 to be citizenships of the various sorts provided for by the 2007 Act.  Importantly, they are not new citizenships under the new Act but old citizenships which continue.  As the applicant was not a citizen of Australia under the 1948 Act, he had no Australian citizenship which could be recognised and perpetuated by s.4(1)(b) of the 2007 Act.  Consequently, the first issue raised by the applicant, whether he is a citizen pursuant to s.14 of the 2007 Act, will determine the outcome of this review.

2. Noting that it is expressed in the present tense, the Minister submitted that s.14 of the 2007 Act does not, in terms, purport to apply to facts occurring before its commencement on 1 July 2007.  The Act is generally expressed in the present tense, which also suggests that it has a conventional, prospective operation.   

3. Specifically in relation to s.14, the revised explanatory memorandum circulated in the Senate in association with the Bill which became the 2007 Act stated in relation to the clause which became s.14:

   Clause 14      Citizenship for abandoned children

   Clause 14 is the equivalent of subsection 5(3)(b) of the old Act.

   It provides for citizenship for abandoned children. In these cases, a person will be deemed to be an Australian citizen if that person was found abandoned in Australia as a child. A proviso exists specifying that this is the case unless and until the contrary is proved.

   Plainly it was the drafter’s intention in relation to abandoned children that s.5(3)(b) would cease to operate and that s.14 would operate exclusively upon the commencement of the 2007 Act, reinforcing the prospective nature of s.14 and indicating that it was not intended to apply to matters which occurred before 1 July 2007.  That inference is also supported by s.4 of the 2007 Act which makes it clear that there are two, different, citizenship regimes: one commencing on 1 July 2007, which it governs, and one applicable to the period before 1 July 2007, which the 1948 Act governed.

4. I find that s.14 of the 2007 Act did not apply to events occurring before 1 July 2007.  I therefore find that it has no application to the applicant who, the second delegate accepted and I find, had been found abandoned in Australia in February 2002.

Conclusion

1. Error on the part of the second delegate has not been demonstrated.

2. Consequently, the application will be dismissed.

I certify that the preceding thirty-one (31) paragraphs are a true copy of the reasons for judgment of Judge Cameron

Associate: 

Date: 12 November 2014