Griessel v Minister for Immigration and Citizenship [2025] FedCFamC2G 1042

1. Before the Court is an application, brought pursuant to the Administrative Decisions (Judicial Review) Act 1977 (Cth) (ADJR Act), for judicial review of a decision made by a delegate of the respondent (Minister) on 21 October 2021 to refuse an application for Australian citizenship by conferral made by Mr Reg Glenn Griessel (Reg or the applicant).
2. The case largely requires the Court to examine whether the delegate properly construed and applied s 21(6)(c) of the Australian Citizenship Act 2007 (Cth) (2007 Citizenship Act) when assessing Reg's application for Australian citizenship. In my view they did and, for the reasons that follow, the application is dismissed.

1. The background to the proceedings was summarised in the parties' respective written submissions, which I primarily adopt, and is evidenced by the materials in the Court Book, marked Exhibit 1R. I set out below a brief chronology of key events and the disputed issue relevant to the disposition of these proceedings.
2. On 1 November 1966, Cecile Claire Espot (née Griessel) (Cecile) was born in Melbourne and acquired Australian citizenship by birth.[1] Her parents were Leonard Johan Griessel (Leonard) and Rosemary Ann Griessel (Rosemary).
3. After Cecile's birth and before 25 February 1970, Leonard made an application to the South African authorities for the registration of that birth pursuant to the terms of Article 6 of the South African Citizenship Act 1949 (South African Citizenship Act).[2]
4. On 25 February 1970, the Secretary for the Department of the Interior in South Africa advised Leonard that Cecile's birth could not be registered as he was not a South African citizen at the time of her birth.[3] The Secretary informed Leonard that he could otherwise 'apply on behalf of [his] daughter for a certificate of naturalisation as a South African citizen'.[4]
5. Having received that advice and prior to 16 March 1971, Leonard made an application for naturalisation as a South African citizen. He also made such an application on behalf of Rosemary and Cecile.[5]
6. On 16 March 1971, the Secretary for the Department of the Interior in South Africa wrote to Leonard to inform him that as he had complied with the requirements of South African Citizenship Act, by swearing the oath of allegiance, certificates of naturalisation had been sent to a local Magistrate who would present them to him, Rosemary and Cecile at a ceremony.[6]
7. On 1 April 1971,[7] or 1 November 1971,[8] Leonard and Rosemary reacquired South African citizenship and thus lost their Australian citizenship pursuant to s 17 of the Australian Citizenship Act 1948 (Cth) (1948 Citizenship Act).
8. On 1 April 1971, or 1 November 1971, Cecile acquired South African citizenship. However, the parties disagree as to the basis upon which Cecile lost her Australian citizenship at that time. The applicant contends that it was lost pursuant to s 17 of the 1948 Citizenship Act while the Minister contends that it was lost pursuant to s 23 of that Act.[9]
9. On 25 April 1984, Cecile gave birth to Reg. On that day, Reg became a citizen of South Africa.[10]
10. On 22 May 1985, Cecile resumed her Australian citizenship.[11]

1. On 20 November 2020, Reg made an application for Australian citizenship by conferral under the 2007 Citizenship Act.[12] He made his application on the basis of a claim that he was eligible for Australian citizenship because he was born to a former Australian citizen,[13] namely Cecile.
2. On 21 October 2021, Reg's Australian citizenship application was refused on the basis that he did not meet the criteria specified in sub-s 21(6)(c) of the 2007 Citizenship Act.[14] The delegate determined that Reg was ineligible to become an Australian citizen because they were not satisfied that Cecile had ceased to be an Australian citizen under section 17 of the 1948 Citizenship Act before Reg's birth on 25 April 1984. On that basis, the delegate found that the requirement in s 21(6)(c) of the 2007 Citizenship Act had not been met.

1. By way of an amended application, filed on 20 May 2025, the applicant raises the following two grounds of review (reproduced without alteration):
   1. The decision of the Respondent to refuse the Applicant's application for Australian citizenship by conferral was affected by jurisdictional error as it found that the Applicant's mother had ceased to be an Australian citizen under section 23 of the Australian Citizenship Act 1948.

Particulars

a) The Applicant's mother acquired Australian citizenship by birth.

b) The Applicant's mother was of full age and capacity due to the agency of her father and while in South Africa, made an application for naturalisation as a South African citizen.

c) The Applicant's mother through a voluntary and formal act acquired citizenship of South Africa after 16 March 1971 and therefore, the Applicant's mother ceased to be an Australian citizen pursuant to section 17 of the Nationality and Citizenship Act 1948.

d) The Applicant was the child of a former Australian citizen at the time of his birth and the Applicant's mother ceased to be an Australian citizen under section 17 of the Nationality and Citizenship Act 1948. As a result, the Applicant made an application for Australian citizenship by conferral under subsection 21(6) of the Australian Citizenship Act 2007 as he is the child of a former Australian citizen.

e) The Applicant's mother had ceased to be an Australian citizen under section 17 of the Act and not under section 23 of the Australian Citizenship Act 1948.

1. The Respondent decision was legally unreasonable.

a) The Respondent failed to consider a clearly articulated argument of the Applicant.

b) The Respondent referred to, and relied upon, and Act which did not exist.

1. The relevant Australian citizenship eligibility requirements are set out in s 21(6) of the 2007 Citizenship Act:

Person born to former Australian citizen

(6) A person is eligible to become an Australian citizen if the Minister is satisfied that:

(a) the person was born outside Australia; and

(b) a parent of the person was not an Australian citizen at the time of the person's birth; and

(c) the parent had ceased to be an Australian citizen under section 17 of the old Act (about dual citizenship) before that time; and

(d) if the person is aged 18 or over at the time the person made the application - the person is of good character at the time of the Minister's decision on the application.

1. The 'old Act' in s 21(6)(c) is defined in s 3 of the 2007 Citizenship Act. That definition provides that the 'old Act means the Australian Citizenship Act 1948' as in force before the commencement of the 2007 Citizenship Act.
2. Between 1 May 1970 and 19 February 1973, which was the period within which Leonard, Rosemary and Cecile lost their Australian citizenship, the 1948 Citizenship Act contained various provisions relevant to this case. The provisions governing loss of Australian citizenship were specified within 'Division 4 - Loss of Citizenship' within 'Part III - Australian Citizenship' of the 1948 Citizenship Act and read as follows:

17 Loss of citizenship on acquisition of another nationality

An Australian citizen of full age and of full capacity, who, whilst outside Australia and New Guinea, by some voluntary and formal act, other than marriage, acquires the nationality or citizenship of a country other than Australia, shall thereupon cease to be an Australian citizen.

18 Renunciation of citizenship

(1) Where -

(a) an Australian citizen is a national or citizen of a country other than Australia; and

(b) that person's nationality or citizenship was acquired (whether before, on or after the twenty‑sixth day of January, One thousand nine hundred and forty‑nine) at birth, while not of full age or by reason of marriage,

he may at any time after attaining the age of twenty‑one years or after the marriage, make a declaration renouncing his Australian citizenship.

(2) A person who became an Australian citizen by reason of the inclusion of his name in a certificate of Australian citizenship granted to his responsible parent or his guardian may, at any time after attaining the age of twenty‑one years, make a declaration renouncing his Australian citizenship.

(3) Where a person ceases to be an Australian citizen or is deprived of his Australian citizenship under the provisions of this Division and his wife acquires, under the law of some country other than Australia, the nationality or citizenship of her husband, she may, at any time after acquiring that nationality or citizenship, make a declaration renouncing her Australian citizenship.

(3A) Where a person who was born, or is ordinarily resident, in a country other than Australia is not entitled, under the law of that country, to acquire the nationality or citizenship of that country by reason that the person is an Australian citizen, that person may make a declaration renouncing his Australian citizenship.

(4) Subject to the next two succeeding subsections, the Minister shall register a declaration made under this section and thereupon the person making the declaration shall cease to be an Australian citizen.

(5) Where, during a war in which Australia is engaged, a declaration is made under this section by a person who is a national or citizen of a foreign country, the Minister may refuse to register the declaration.

(6) The Minister shall not register a declaration made under subsection (2) of this section unless he is satisfied that the person who made the declaration -

(a) is a national or citizen of a country other than Australia; or

(b) will, if the declaration is registered, become a national or citizen of such a country immediately after the registration.

19 Loss of citizenship by reason of service in armed forces of an enemy country

An Australian citizen who, under the law of a country other than Australia, is a national or citizen of that country and serves in the armed forces of a country at war with Australia shall, upon commencing so to serve, cease to be an Australian citizen.

21 Deprivation of citizenship

Where -

(a) a person who is an Australian citizen by virtue of a certificate of Australian citizenship has, whether before or after the commencement of this section, been convicted of an offence against section fifty of this Act in relation to the application for his certificate of Australian citizenship; and

(b) the Minister is satisfied that it would be contrary to the public interest for the person to continue to be an Australian citizen,

the Minister may, by order, deprive the person of his Australian citizenship, and the person shall, upon the making of the order, cease to be an Australian citizen.

23 Children of persons who lose or are deprived of citizenship

(1) Where -

(a) the responsible parent or the guardian of a child not of full age ceases to be an Australian citizen under section seventeen, eighteen or nineteen of this Act; and

(b) that child is, under the law of a country outside Australia, a national or citizen of that country immediately after the time when his responsible parent or his guardian ceases to be an Australian citizen,

that child shall cease to be an Australian citizen from that time.

(2) Where a person is deprived of his Australian citizenship under section twenty‑one of this Act, the Minister may, by order, direct that all or any of the children of whom that person is the responsible parent or the guardian and who are not of full age shall cease to be Australian citizens, and the children in respect of whom the order is made shall, upon the making of the order, cease to be Australian citizens.

23A Persons may resume citizenship lost under s. 20

(1) A person who, under section twenty of the Nationality and Citizenship Act 1948-1955, ceased to be an Australian citizen may, within one year after the date of commencement of this section or the date on which he attains the age of twenty‑one years, whichever is the later, or within such further period as the Minister, in special circumstances, allows, make and furnish to the Secretary a declaration in accordance with the prescribed form that he wishes to resume Australian citizenship.

(2) The Secretary shall register the declaration in the prescribed manner and, upon the registration of the declaration, the person making the declaration again becomes an Australian citizen.

23B Persons may resume citizenship lost under s. 23

(1) A person who, under section twenty‑three of this Act, has ceased or ceases to be an Australian citizen may, within one year after attaining the age of twenty‑one years or within such further period as the Minister, in special circumstances, allows, make and furnish to the Secretary a declaration in accordance with the prescribed form that he wishes to resume Australian citizenship.

(2) The Secretary shall register the declaration in the prescribed manner and, upon the registration of the declaration, the person making the declaration again becomes an Australian citizen.

1. Sub-section 5(3)(b) of the 1948 Citizenship Act relevantly provided that:

(3) For the purposes of this Act -

...

(b) a person shall be of full age if he has attained the age of twenty‑one years;

1. By ground one, the applicant contends the respondent fell into jurisdictional error as the delegate had found that Cecile ceased to be an Australian citizen under s 23 of the 1948 Citizenship Act. At hearing, when pressed to further articulate the error raised by this ground, the applicant's representative submitted that the making of the decision was an improper exercise of the power such that the delegate's exercise of the power was so unreasonable that no reasonable person could have so exercised the power: see ss 5(1)(e) and 5(2)(g) of the ADJR Act. The Minister's representative helpfully suggested that the ground was perhaps best characterised as one where the decision involved an error of law: see s 5(1)(f) of the ADJR Act. As the applicant's ground essentially amounts to a complaint involving the misapplication or misconstruction of the relevant legislation, I prefer the Minister's characterisation of the error raised by this ground.
2. The applicant submits the delegate was incorrect to find Cecile had ceased to be an Australian citizen under s 23 of the 1948 Citizenship Act. The applicant further submits that a proper reading of the legislation supports the argument that Cecile lost her citizenship in 1971 under s 17 of the 1948 Citizenship Act because Leonard was acting as her 'agent' when she made her application for South African citizenship. It is contended that by Leonard's act of 'making an application' on Cecile's behalf, Cecile is to be considered a person of the kind referred to in s 17 rather than as a child referred to in s 23. The applicant argues that Cecile's application for South African citizenship was made 'through the agency of her father who had reached full age and capacity', therefore bringing Cecile within s 17 of the Act.
3. Having regard to the plain text of the provisions within Division 4 of Part III of the 1948 Citizenship Act, I am of the view that such a reading of those provisions is not open to the applicant.
4. Much has been written and said about approaches to be taken when interpreting legislation. That need not be reproduced here beyond reiterating that the text of a legislative provision is to be considered in context, including the Act as a whole, linguistic canons of construction, the purpose of the provision and extrinsic material.[15] In cases where a dispute arises in relation to the application of a provision, it may be necessary to establish the intention of the legislature to ascertain the way in which the legislation is to be properly applied to a particular set of facts.[16] In SZTAL v Minister for Immigration and Border Protection [2017] HCA 34; (2017) 262 CLR 362; HCA 34 at [14], Kiefel CJ, Nettle and Gordon JJ made the following remarks in relation to the interpretation of a statutory provision:

The starting point for the ascertainment of the meaning of a statutory provision is the text of the statute whilst, at the same time, regard is had to its context and purpose. Context should be regarded at this first stage and not at some later stage and it should be regarded in its widest sense. This is not to deny the importance of the natural and ordinary meaning of a word, namely how it is ordinarily understood in discourse, to the process of construction. Considerations of context and purpose simply recognise that, understood in its statutory, historical or other context, some other meaning of a word may be suggested, and so too, it its ordinary meaning is not consistent with the statutory purpose, that meaning must be rejected.

1. The starting point in any statutory interpretation exercise must involve some consideration of the legislative text. Indeed, the interpretation must also end with the text: Commissioner of Taxation v Consolidated Media Holdings Ltd (2012) 253 CLR 503; HCA 55 at [39]. In this case, it is clear on the text within Division 4 of Part III of the 1948 Citizenship Act, as it was in 1971, that various provisions specify different bases upon which a person, whether they are a parent or a child, can lose their Australian citizenship.
2. Section 17 provides for circumstances where a person loses their Australian citizenship upon having acquired nationality or citizenship of a country other than Australia. The provision clearly contemplates that such loss only arises in circumstances where the person:

(a) is of 'full age';

(b) is of 'full capacity'; and

(c) acquired the nationality or citizenship of a country other than Australia, whilst they were outside Australia and New Guinea, by some 'voluntary and formal act, other than marriage'.

1. Within Division 4, s 23 then provides for the consequences that flow to children of persons who fall within the ambit of s 17. Notably, such children will only cease to be an Australian citizen where they are not of 'full age' and have acquired the citizenship of another country immediately after their parent ceases to be an Australian citizen. Unlike s 17, s 23 does not contain any requirement for the child to demonstrate they are of 'full age', 'full capacity' or have performed a 'voluntary and formal act, other than marriage' to lose their Australian citizenship. The operation of s 23 is enabled by the voluntary and formal acts of the child's parent or responsible guardian who themselves is of full age and full capacity.
2. Having considered the available material, Leonard and Rosemary clearly fell within the ambit of s 17 as it operated in 1971. That much is common ground between the parties. At that time, Leonard and Rosemary were of full age, full capacity and acquired South African citizenship by way of a voluntary and formal act in the making of an application to the South African authorities. In stark contrast, the evidence before this Court provides that Cecile was not of full age in 1971 and acquired South African citizenship immediately after her parents did in 1971. In my view, the totality of these circumstances give rise to a logical conclusion that Cecile lost her Australian citizenship in 1971 pursuant to the operation of s 23.
3. I now turn to the applicant's argument that Cecile's acquisition of South African citizenship can be characterised as one in which she performed a voluntary and formal act in 1971 through the 'agency' of her father and thereby falls within the ambit of s 17.
4. I am unpersuaded by the applicant's argument that a parent of an Australian citizen child who makes an application for citizenship or nationality of another country on behalf of their child, is acting as their child's 'agent' such that the child is a person of the kind that falls within the ambit of s 17.
5. First, nowhere in the relevant legislation does a concept of agency appear such that s 17 could arguably be construed to operate in a manner whereby children who are not of 'full age' fall within its ambit due to an act of their responsible parent or guardian. A plain reading of the words of the provision does not support the construction proffered by the applicant that a child falls within the ambit of s 17 when their responsible parent or guardian makes an application for foreign citizenship or nationality on their behalf. Further, the extrinsic materials also do not lend to support to the applicant's argument.[17] Furthermore, the applicant has been unable to point to any authority which supports their construction of the relevant provisions.
6. Secondly, s 17 clearly provides that any such application may only be made by a person of 'full age', which is someone who is at least 21 years of age. A plain reading of s 5(3)(b) makes it clear that the argument raised by the applicant finds no support in the statute which clearly provides that only persons above 21 years of age fall within the ambit of s 17.
7. Thirdly, a plain reading of the entirety of the statutory provisions within Division 4 of Part III of the 1948 Citizenship Act reveals that s 23 clearly and fully contemplates and covers all circumstances involving children, such as Cecile, who lose Australian citizenship. Relevantly, these specifically provide for circumstances where a minor is not of full age and their responsible parent or guardian has lost Australian citizenship pursuant to s 17.
8. For these reasons, the delegate did not err in determining that Cecile properly fell within the ambit of s 23 (rather than s 17) of the 1948 Citizenship Act and thereby lost her Australian citizenship on that basis in 1971. Therefore, the delegate did not misinterpret or misapply the relevant legislation or otherwise err in the manner contended by the applicant. Accordingly, this ground must fail.

1. By ground 2, the applicant contends that the Minister's decision was legally unreasonable because the delegate:

(a) failed to consider the 'legal submissions' dated 19 November 2020 which had been provided to the Minister's Department by the applicant's representative;

(b) referred to an 'Australian Citizenship Act 1948' which was legislation that simply did not exist, instead of properly making reference to the Nationality and Citizenship Act 1948 (Cth).

1. At hearing, when pressed to further articulate the errors raised by way of this ground, the applicant's representative submitted that the making of the decision was an improper exercise of the power such that the delegate failed to consider a clearly articulated argument in the legal submissions and thereby failed take a relevant consideration into account in the exercise of the power (see ss 5(1)(e) and 5(2)(b) of the ADJR Act). The Minister's representative suggested that the ground was perhaps best characterised as one where the decision involved an error of law or was otherwise contrary to law (see s 5(1)(f) and (j) of the ADJR Act), or that the making of the decision was an improper exercise of the power such that the delegate took an irrelevant consideration into account in the exercise of the power (see ss 5(1)(e) and 5(2)(a) of the ADJR Act). It is unnecessary to properly identify the basis of the alleged error because, for the reasons that follow, the applicant's arguments in relation to this ground can in no way succeed.
2. First, in relation to the allegation that the delegate had failed to consider the arguments contained within the legal submissions made by the applicant's representative, the Minister submits, and I agree, that while the delegate's reasons do not contain specific mention of the legal submissions, this does not necessarily mean they were not considered. Those legal submissions, in their totality, contain a substantially similar statutory interpretation argument which, for the reasons above, has been rejected by this Court. As I have found above, the applicant's proposed construction of s 17 of the 1948 Citizenship Act is not open to them. Therefore, I am of the view that the delegate did not err by failing to refer to those legal submissions beyond the reference made to 'Legal Submission' in Part 2 of the delegate's decision.[18] I infer that the delegate's reasons for decision do not contain further exposition or consideration of the legal submissions raised by the applicant's representative because those submissions were either misdirected or misconceived and, as the Minister suggests, did not form any further part of the decision because they were immaterial to any 'findings on material questions of fact' and did not form a part of 'the evidence or material on which those findings were based'.[19]
3. Secondly, insofar as the applicant submits the delegate's decision is affected by error due to the incorrect reference to the 'Australian Citizenship Act 1948', I do not find this contention to be made out. The Minister submits, and I agree, that the error goes no higher than a mere error which, in and of itself, is of no material substance. In coming to this finding, I have had regard to the fact that the Australian legislation governing the acquisition and loss of Australian citizenship has been cited in various ways since the introduction of the Nationality and Citizenship Act 1948 (Cth) in 1949. For some twenty years it retained that name until the introduction of the Citizenship Act 1969 (Cth) in 1969. Some four years later in 1973, the legislation was renamed The Australian Citizenship Act 1948 (Cth). While these changes in nomenclature may provide some explanation for the delegate's error, that error is of no moment or consequence. The pertinent question is whether the delegate erred in their application of the relevant legislation to the facts in this case. In accordance with my findings above in relation to ground 1, I am of the view that the delegate's reasoning demonstrates a proper understanding of the operation of the relevant provisions of the 1948 Citizenship Act which applied in this case. Accordingly, I do not regard this minor error to be one of substance such that a ground within s 5 of the ADJR Act has been made out.

1. Therefore, for the above reasons, the application before this Court is dismissed.
2. As a consequence of changes to Ministerial portfolio arrangements and responsibilities following the Federal Election on 23 May 2025, the name of the respondent is to be amended to 'Minister for Immigration and Citizenship'.
3. I will hear the parties as to costs.

I certify that the preceding forty (40) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Papadopoulos.

[1] Court Book (CB) 18, 28, 139 and 154.

[15] Herzfeld P and Prince T, Statutory Interpretation Principles (2nd ed, Thomson Reuters, 2021) p 14.

[16] Pearce D C, Statutory Interpretation in Australia (10th ed, Lexis Nexis, 2024) p 8.

[17] See cl 17 of the Explanatory Memorandum to the Nationality and Citizenship Bill 1948.

[19] Acts Interpretation Act 1901 (Cth), s 25D.