Deyanti v Minister for Immigration and Citizenship [2025] FCA 1430

1. As referred to above, the applicant applied for evidence of Australian citizenship pursuant to s 37 of the 2007 Act. In considering that application, it was necessary for the delegate to consider the applicant's Australian citizenship status at the time she claimed to have been abandoned in Australia (in the year 2000, prior to the commencement of the 2007 Act and when the 1948 Act was still in force). Section 4(2) of the 2007 Act expressly provides that "[i]f, 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": Nicky v Minister for Immigration and Border Protection [2015] FCA 174; (2015) 230 FCR 171 at [25]; SZRTN v Minister for Immigration and Border Protection [2015] FCA 305 at [7], affirmed on appeal in SZRTN v Minister for Immigration and Border Protection [2015] FCAFC 110; (2015) 233 FCR 156 (SZRTN Appeal) at [12].
2. The relevant provision is therefore s 5(3)(b) of the 1948 Act:

(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;

(ii) if born on or after 26 January 1949 and before 6 May 1966 - to have been, at the time of birth, a person to whom subsection 10(2) of this Act, as in force at that time, did not apply;

(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; and

(iv) if born on or after the day on which the Australian Citizenship Amendment Act 1986 comes into operation - to be, at the time of birth, a person to whom paragraph 10(2)(a) of this Act applies and to whom subsection 10(3) of this Act does not apply;

(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.

(5) Subsection (3) does not apply in relation to a person if, at the time of the person's birth, a parent of the person -

(a) was an Australian citizen or a permanent resident; and

(b) was not an enemy alien.

(6) A reference in this section to a permanent resident does not include a reference to a person who is, for the purposes of the Migration Act 1958, an exempt non-citizen.

1. Therefore, under the 1948 Act, the deeming of a person to have been born in Australia under s 5(3)(b) meant that person, subject to s 10, shall be an Australian citizen.
2. In essence, the applicant's case is the delegate misunderstood and misapplied the abandoned child provision by purporting to prove "the contrary" in s 5(3)(b) of the 1948 Act without considering whether the applicant was a citizen of another country, despite the evidence of her statelessness. The delegate accepted the applicant had been abandoned in Australia "on or about 6 May 2001" (that is, when she was a child). The burden of proving "the contrary" fell upon the delegate. As proof of "the contrary", the delegate found the applicant's expired Indonesian passport was credible evidence she had been born in Indonesia (not Australia). The applicant submitted that was an erroneously narrow conception of "the contrary" that fixated only on the applicant's birth in Indonesia without considering her citizenship. That is, proof of "the contrary" required the delegate to prove the applicant held Indonesian citizenship and was not stateless. In support of that construction, the applicant relied on the observations of Flick J in Nicky at [43]-[45]. The applicant also relied on Flick J's observations at [16] that the abandoned child provision is a legislative attempt to implement the Convention on the Reduction of Statelessness, opened for signature 30 August 1961, 989 UNTS 175 (entered into force 13 December 1975), to which Australia is a signatory (ground 1). The applicant submitted that given the evidence of the applicant's statelessness and the purpose of the abandoned child provision, irrespective of the applicant not having been born in Australia, the delegate was required to ascertain whether the applicant possessed the nationality of another country, as an essential step of proving "the contrary" under s 5(3)(b). The delegate did not do so. In practical terms, this ground asserted a failure to consider relevant evidence (ground 2). In that circumstance, the decision was also legally unreasonable (ground 3).
3. As is apparent from that brief summary, although there are three grounds, the resolution of this application turns on the proper construction of s 5(3)(b) of the 1948 Act. In the present case, if a child is found abandoned in Australia, then unless and until the contrary is proved, the provision deems by virtue of s 5(3)(b)(i), the child to have been born in Australia. The issue that arises in this case is what is to be proved to preclude the operation of the deeming effect in s 5(3)(b)(i). The applicant conceded during the hearing of the application that establishing ground 1 was critical to succeeding, without which grounds 2 and 3 would not be established.
4. The respondent took issue with the applicant's construction. The Minister submitted that the delegate applied the interpretation of s 5(3)(b) of the 1948 Act consistent with that held in Nicky (Flick J), SZRTN (Perram J) and the SZRTN Appeal.
5. The approach to construction was recently reiterated in Palmanova Pty Ltd v Commonwealth of Australia [2025] HCA 35 at [4] (references omitted):

Statutory construction is the process of attributing meaning to statutory text. The construction of a statutory provision begins and ends with the statutory text understood in context and in light of the statutory purpose - being what the provision is designed to achieve in fact - insofar as that purpose is discernible from the statutory text and context. In the construction of a provision of a Commonwealth statute, the meaning that would best achieve the statutory purpose so discerned is to be preferred to each alternative meaning.

1. The Court explained that context is to be understood in its widest sense to include such things as the existing state of the law and the mischief which by legitimate means one may discern the statute was intended to remedy. That includes so much of the extrinsic material which "has utility if, and in so far as, it assists in fixing the meaning of the statutory text": Palmanova at [6] citing Port of Newcastle Operations Pty Ltd v Glencore Coal Assets Australia Pty Ltd [2021] HCA 39; (2021) 274 CLR 565 at [87], quoting Federal Commissioner of Taxation v Consolidated Media Holdings Ltd [2012] HCA 55; (2012) 250 CLR 503 at [39].
2. It is appropriate to consider the authorities which have considered this issue.
3. Nicky concerned whether an applicant who was born in Indonesia, separated from his mother and abandoned in Australia when he was 16-years old, engaged the abandoned child provision.
4. The applicant drew attention to Flick J's observations at [16] in relation to s 5(3)(b) of the 1948 Act:

The provision is a legislative attempt to implement the United Nations Convention on the Reduction of Statelessness, done at New York on 30 August 1961. The Explanatory Memorandum to the Citizenship Bill 1969 (Cth) thus states in part as follows:

Paragraph (d) of clause 5 inserts into the legislation a new provision which will ensure that a child found in Australia shall be deemed to be an Australian citizen by birth. The United Nations Convention on the Reduction of Statelessness, to which Australia is a signatory, provides that a child found in a State shall be recognised as a citizen of that State, and this provision will allow Australia to conform to the Convention in that respect. The reference in the provision to section 10 of the Act will ensure that such a child cannot be deemed to be of a class which, although born in Australia, does not, by virtue of section 10, acquire Australian citizenship.

1. Justice Flick, having determined that the 1948 Act applied in determining the question of whether the applicant had been abandoned in Australia, concluded at [36]-[39]

[36] No appellable error is discernible in the conclusion reached by the Federal Circuit Court judge in respect to the proper construction and application of s 5(3)(b) of the 1948 Act.

[37] Section 10(1) of the 1948 Act could not apply for the simple reason that the facts precluded any finding that the appellant was born in Australia.

[38] Nor could s 5(3)(b)(i) apply to the appellant. For the purposes of s 5(3)(b)(i), the "contrary" was proven by the birth certificate showing the appellant to have been born in Indonesia.

[39] The phrase in s 5(3)(b), "until the contrary is proved", is capable of referring to each of the elements thereafter set forth in s 5(3)(b). Section 5(3)(b) is not to be construed such that the phrase "until the contrary is proved" only qualifies the phrase "found abandoned in Australia". Contrary to the submission advanced on behalf of the appellant, there is no reason why the phrase "until the contrary is proved" cannot apply to s 5(3)(b)(ii) to (iv) equally as well as to s 5(3)(b)(i). An assertion, for example, that s 10(2) and (3) of the 1948 Act did or did not as a matter of fact apply to a person is equally as capable of being proven erroneous as is a claim that the person was born in Australia.

1. Justice Flick then compared s 14 of the 2007 Act with s 5(3) of the 1948 Act. Section 14 is as follows:

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.

[40] One of the differences between the former s 5(3) as found in the 1948 Act and the current s 14 of the 2007 Act is that the former s 5(3):

• "deemed" a child who was found abandoned "to have been born in Australia". It was s 10(1) of the 1948 Act which thereupon operated such as to make that person an Australian citizen.

• stops short of "deeming" a person who has been found abandoned to be a person who was born in Australia. It is s 12 of the 2007 Act which specifies whether a person has Australian citizenship "by birth".
• Section 10 of the 1948 Act is in materially different terms to the current s 12.

[41] The appellant's primary reliance upon s 14 can thus (perhaps) be readily understandable. If a person can bring himself within s 14, he is taken by that provision alone to be an Australian citizen - "until the contrary is proved".

[42] But whether there is such a stark contrast in the entitlement to Australian citizenship conferred by the 1948 Act as opposed to the 2007 Act may be queried. Both provisions are subject to the qualification "until the contrary is proved".

[43] If it is s 14 which governs the appellant's entitlement, "the contrary is proved" by his birth certificate and passport. The "contrary" which is "proved" is his citizenship by reason of either his birth in Indonesia or by reason of the grant of an Indonesian passport. If it is the 1948 Act which governs his entitlement, again "the contrary is proved" by reference to the same documents.

[44] The objective sought to be achieved in both provisions is to determine the citizenship of a child who has been found abandoned in Australia - he either has Australian citizenship or such other citizenship as can be proved.

...

[45] Section 5(3)(b) of the 1948 Act was a legislative attempt to ensure that children found abandoned in Australia were not "Stateless". Section 14 of the 2007 Act carries forward that legislative objective. In the absence of clear words to the contrary, there is no self-evident reason why either section should be construed as entitling a child found abandoned in Australia to Australian citizenship in circumstances where the country of birth and nationality of that child are known.

1. His Honour observed at [46] that there was no submission made to the delegate or the Federal Circuit Court that the appellant was stateless as a result of the expiration of his Indonesian passport.
2. Justice Perram considered these provisions in SZRTN. An argument that arose is whether the phrase to "the contrary" qualifies the words "found abandoned in Australia". His Honour accepted that the provision is capable of supporting that construction, but that it was also capable of supporting a construction where "the contrary" refers to the contrary of "born in Australia". His Honour concluded that the provision is, therefore, ambiguous: at [19]. After some analysis his Honour concluded the construction of s 5(3)(b) to be preferred is that "the contrary" to be proved is the contrary of being born in Australia: at [23].
3. On that basis, Perram J concluded that the applicant's evidence is that he was born in Samoa and therefore s 5(3)(b) did not deem him to have been born in Australia and s 10(1) did not make him an Australian citizen under the 1948 Act. He also did not satisfy s 4(1)(b) of the 2007 Act: at [24].
4. His Honour also addressed Nicky at [25]:

There are two further matters that should be noted. First, Flick J reached the same conclusion about the meaning of s 5(3)(b) in Nicky at [45]. Part of the reasoning in Nicky involved the observation that s 5(3)(b) was inserted originally to avoid the possibility of stateless persons. I expect that this is probably correct, with respect, but would reserve my own position on that issue at this stage in light of the fact that the mere fact that a person is born in another country does not necessarily mean that they have the nationality of that country. For example, the effect of s 12(1) of the Australian Citizenship Act 2007 is to deny citizenship to persons born here if neither parent is a citizen or a resident. This may matter because it is not necessarily the case that the construction of s 5(3)(b) which both Flick J and myself prefer therefore avoids the problem of statelessness in every case.

1. The construction of s 5(3)(b) referred to by Perram J is consistent with Flick J, being that as set out in [37]-[39] of Nicky (recited above).
2. The Full Court dismissed an appeal from Perram J's judgment, concluding at [14] that:

no appellable error is discernible in the primary judge's conclusions in respect to s 5(3)(b) of the 1948 Act or his concurrence with the reasons expressed in Nicky for reaching a like conclusion.

1. Pausing there. That is Full Court authority for the proposition that s 5(3)(b) of the 1948 Act applied in determining the question of whether a person in the applicant's position had been abandoned. It determined that in s 5(3)(b) "the contrary" to be proved that is referred to is the contrary of being "born in Australia". That was the construction applied in both Nicky and SZRTN. This Court is bound by the Full Court's judgment. The delegate applied the law as espoused by the Full Court.
2. The applicant submitted this case is different from Nicky and SZRTN because of the evidence before the delegate. That may be so. However, the issue is one of statutory construction - what does the phrase "until the contrary is proved" in s 5(3)(b) refer to. That construction is not dependent on the evidence before the delegate. That said, it appears that the submission now advanced was not before those Courts.
3. Nonetheless I agree with the construction of s 5(3)(b) applied in Nicky and SZRTN (as endorsed by SZRTN Appeal).
4. Applying the principles of statutory construction, the construction of "the contrary" to be proved in s 5(3)(b) is the contrary of having been born in Australia.
5. The text of s 5(3)(b) supports that construction. It may be accepted, as the applicant submitted, that citizenship in the 1948 Act was based on birth but was subject to exceptions: see s 10. That, however, does not assist the applicant's construction but rather explains why the issue in s 5(3)(b) is directed to having been born in Australia. Nothing in the text of that provision imposes any other condition or requirement that must be considered by the decisionmaker.
6. The mechanism by which Parliament chose to attempt to implement its obligation as a signatory to the Convention in the 1948 Act was by deeming a child found abandoned in Australia to have been born in Australia, unless and until the contrary is proved.
7. The text of Article 2 of the Convention is as follows:

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.

1. That Article does not refer to any consideration broader than birth. The terms of s 5(3)(b)(i) reflect that Article.
2. The applicant's approach to the construction of s 5(3)(b) to encompass citizenship was, at times, difficult to articulate with its practical application never adequately addressed. There was a tendency to focus on the individual case (submitting the purpose of the provision required the delegate to ascertain whether the applicant possessed citizenship of another country), rather than the issue of construction. The applicant submitted that citizenship is the consequence of being born in Australia and therefore it would to be artificial to confine "the contrary" in s 5(3)(b) to being born in Australia, where it should also include being an Australian citizen. To put that another way, in practical terms, to be satisfied of "the contrary" would require proof that the child was not born in Australia and is entitled to foreign citizenship. Ultimately, the applicant referred to it as a "two-fold requirement", relying on the reasoning in Nicky at [45]. She submitted the contrary cannot be proved just by establishing one of those conjunctive elements. The reasoning is flawed at least for the following reasons.
3. First, as evident from the discussion above, the two-fold requirement finds no support in the text of the provision.
4. Second, on the applicant's reasoning, the contrary must be proved in respect to both elements, otherwise the applicant is deemed to be born in Australia for the purposes of s 5(3)(b)(i). On that reasoning, if the contrary is proved in relation to a child being born in Australia an applicant could, by virtue of s 5(3)(b), nonetheless still be an Australian citizen pursuant to s 10. That is so, despite that the finding the child was not born in Australia means the deeming provision in s 5(3)(b) does not apply (i.e. s 5(3)(b) does not deem them to have been born in Australia). This is in the context where s 10 confers citizenship by birth in Australia. The text of the 1948 Act does not evince an intention to alter that in respect to an abandoned child. The applicant's submission does not grapple with that consequence. Nor does it grapple with the text of s 5(3)(b). Rather, the applicant's construction reads into s 5(3)(b) a condition or requirement not in the text, and contrary to the structure of the Act. It provides citizenship via s 10 other than by birth (and despite it being established the child was not born in Australia).
5. The applicant submitted the abandoned child provision functions as an enlarging definition so that s 10 effectively stipulates that a person who, when a child, was found abandoned in Australia is deemed to have been "born in Australia" and consequently an Australian citizen - subject to the contrary being proved (i.e. the two-fold requirement discussed above). However, it is not s 10 which is being construed, albeit there is some engagement between the provisions. Section 10 is part of the context, but it is s 5(3)(b) that must be construed. That said, s 5(3)(b) does not enlarge s 10, rather s 5(3)(b), unless the contrary is proved, deems the child to have been born in Australia. It creates a statutory fiction, as that person is deemed to have been born in Australia and consequently fits within the requirement for citizenship stipulated in s 10. As such, s 10 does not have the effect for which the applicant contends when considering s 5(3)(b)(i). Section 10 only applies to confer citizenship if the person is born in Australia (relevantly here by being deemed to have been born in Australia if the contrary is not proved: s 5(3)(b)(i)).
6. Although s 5(3)(b) is a legislative attempt to implement Australia's obligations under the Convention, the provision must still be construed having regard to its terms. That is because an international treaty (or customary international law obligations of a similar nature) can operate as a source of rights and obligations under domestic law only if, and to the extent that, it has been enacted by Parliament: Plaintiff M1/2021 v Minister for Home Affairs [2022] HCA 17; (2022) 275 CLR 582 at [20].
7. Reliance on the Convention cannot support a construction which is not borne out on its terms considered in context. While consideration of a provision's purpose as revealed by extrinsic material may assist in discerning the meaning of the provision, "[h]istorical considerations and extrinsic materials cannot be relied on to displace the clear meaning of the text. The language which has actually been employed in the text of legislation is the surest guide to legislative intention": (citations omitted) Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (Northern Territory) [2009] HCA 41; (2009) 239 CLR 27 at [47]. Further, "[t]he purpose of legislation must be derived from what the legislation says, and not from any assumption about the desired or desirable reach or operation of the relevant provisions": Certain Lloyd's Underwriters Subscribing to Contract No IH00AAQS v Cross [2012] HCA 56; (2012) 248 CLR 378 at [26].
8. Finally, the applicant referred to the current provision relating to abandoned children in s 14 of the 2007 Act and the discussion by Flick J in Nicky of that provision. The structure of the 2007 Act is different to the 1948 Act, with the latter generally focussed on citizenship by birth. Section 14 of the 2007 Act provides: "A person is an Australian citizen if the person is found abandoned in Australia as a child, unless and until the contrary is proved." It appears in Part 2, Division 1 of the Act, entitled "Automatic acquisition of Australian citizenship". The terms of s 14 in the 2007 Act are plainly different from s 5(3)(b) of the 1948 Act. Both versions of the statute provide mechanisms which attempt to implement Australia's obligations as a signatory to the Convention (in so far as it relates to abandoned children). They are two different statutory regimes. Although the applicant referred to s 14, and the observations of Flick J in Nicky, she did not go so far as suggesting s 14 of the 2007 Act assists with the construction of s 5(3)(b)(i) of the 1948 Act. In any event, in my view it cannot. While it may be accepted a subsequent statute may provide some insight in certain circumstances, this is not such a case: see e.g. Masson v Parsons [2019] HCA 21; (2019) 266 CLR 554 at [28]. As described above, s 4(2) of the 2007 Act expressly provides that where it is necessary to work out if a person was an Australian citizen at a time before the commencement of that Act, it is to be worked out under the 1948 Act in force at the time. This reflects the differences in the statutory regimes. The legislative intent is that the terms of the 1948 Act be applied in relation to determining citizenship (including as to an abandoned child) for circumstances before 1 July 2007. Further, there is no relevant ambiguity in s 5(3)(b)(i) as to what "to the contrary" relates, to which a subsequent statute may assist: see e.g. Masson v Parsons at [28].
9. I do not accept the applicant's construction of s 5(3)(b) of the 1948 Act. The delegate applied the law consistent with the SZRTN Appeal. The applicant has not established ground 1 that the delegate misunderstood or misapplied the law.
10. As explained above, grounds 2 and 3 are dependent on the Court's determination on the construction of s 5(3)(b). As the applicant explained, the fundamental threshold question is in ground 1, with grounds 2 and 3 reflecting the errors said to flow from it. That said, I note that there was no challenge to the delegate's conclusion that the applicant's Indonesian passport was credible evidence that she was born in Indonesia. Rather, the submission was that was only evidence of her country at birth, and the delegate's finding did not go far enough and consider the applicant's nationality and the issue of statelessness. I note also, as submitted by the respondent, the Consulate General Letter did not simply declare the applicant was stateless, but that based on various correspondence with Indonesian Government offices, the applicant is not an Indonesian citizen and cannot be issued a passport "until proven otherwise".
11. That said, given the conclusion on ground 1, the delegate was not required to consider whether the applicant was stateless (including whether she possessed the nationality of another country) for the purpose of determining whether the contrary has been proved in relation to the applicant being born in Australia under s 5(3)(b)(i). In that context, it cannot be said that the delegate failed to consider the applicant's representations about her asserted statelessness. Nor can it be said that the decision was legally unreasonable because the delegate failed to engage with the evidence of statelessness.

1. No error has been established in the decision of the delegate. Accordingly, the application is dismissed with costs.

I certify that the preceding forty-six (46) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Abraham.