Minister for Home Affairs v Lee [2021] FCAFC 89 | Case summary

THE COURT: 1 Troyrone Zen Lee was born to Australian citizen parents in the then Australian external territory of Papua (Papua) on 20 May 1975. Australia relinquished its sovereignty over that territory and its responsibilities in respect of the then United Nations Trust Territory of New Guinea (New Guinea), then jointly administered with Papua by Australia as the Territory of Papua and New Guinea, at midnight on 15 September 1975. On the following day, 16 September 1975 (Independence Day), a new sovereign nation, the Independent State of Papua New Guinea (Papua New Guinea), comprising those two, former territories, came into being. 2 An Australian passport was first issued to Mr Lee in May 1979. That passport carried an annotation that he had previously travelled on his mother's, Mrs Amy Sin Yee Lee (Mrs Lee), passport (an Australian passport issued on 7 May 1974). Thereafter, both as a child and as an adult, Mr Lee was issued with a succession of Australian passports. The issuing of these passports to him was consistent with advice given to Mrs Lee, after Independence Day, by both the Australian High Commission in Port Moresby and the then Department of Immigration in Brisbane that her son was an Australian citizen. 3 In December 2016, when he sought again to renew his Australian passport, Mr Lee was officially informed that this was not possible, as he was not an Australian citizen. The advice then given to him was that he had ceased to be an Australian citizen on Independence Day and that he had thereupon become a citizen of Papua New Guinea. Mr Lee has attested that this advice dumfounded him. That is hardly surprising. The advice has, however, since been officially confirmed on a number of occasions including, notably, on 31 March 2017, personally by the then Minister for Immigration and Border Protection, the Honourable Peter Dutton MP. 4 The advice, and a consequential inability to obtain an ordinary Australian passport, has also had a very particular, economic impact on Mr Lee. He is, by profession, an electrical engineer, specialising in rolling stock, power supply and system engineering in the design, construction and commissioning for government projects in high-speed rail, mass railway transit and light rail transit throughout Asia. This is a specialist branch of engineering in respect of which work is not available in Australia, because the technology employed is not used here. Mr Lee must therefore work overseas. Until this controversy in relation to his citizenship, he had done this for over two decades. For the purpose of obtaining work permits in countries where his specialist employment is available, he requires a valid passport. 5 One of the consequential actions taken by Mr Lee after his receipt of the official Australian advice was to check with the government of Papua New Guinea his citizenship status. By a letter dated 15 October 2017, Mr Lee was officially advised by Papua New Guinea's Deputy Chief Migration Officer that he was not a citizen of that country. More particularly, that advice stated: … you are not a citizen of the Independent State of Papua New Guinea under the PNG Constitution Section 64 and 65 on automatically acquiring PNG citizenship on PNG Independence day on September 16 1975. [sic] [emphasis in original] 6 The reference in the Deputy Chief Migration Officer's advice to s 64 and s 65 of the Constitution of the Independent State of Papua New Guinea (PNG Constitution) will be noted. These provisions are undoubtedly relevant. 7 The present (although not historic) understanding of the executive government of Australia as to the meaning and effect of these provisions in that country's constitution in relation to Mr Lee differs from the understanding expressed by the executive government of Papua New Guinea by its Deputy Chief Migration Officer. 8 The result of this difference of governmental understanding is that Mr Lee is, quite literally, betwixt and between, in jeopardy of being stateless. 9 The Australian government has been in possession of the Deputy Chief Migration Officer's differing advice at least since its receipt of a representation on behalf of Mr Lee in May 2018. Even thereafter, it has remained steadfast in its view that Mr Lee ceased to be an Australian citizen on Independence Day. Though it has continued to hold this view, the Australian government, as well it might have, by its Attorney-General, has never sought to challenge, by an application for declaratory relief in Papua New Guinea's superior court of general jurisdiction, the National Court of Justice, the correctness of the understanding voiced by that country's Deputy Chief Migration Officer in relation to Mr Lee. It would hardly be for Mr Lee to do this in that Court, because he agrees with that PNG officer's understanding. 10 Instead, what occurred is that Mr Lee instituted a proceeding to which the Minister was respondent in this Court's original jurisdiction in which he sought a declaration that he is an "Australian citizen" within the meaning of s 4(1)(b) of the Australian Citizenship Act 2007 (Cth) (2007 Act). That application, and more particularly the way in which Australia dealt with the subject of its citizenship upon Papua New Guinea becoming independent, placed an Australian court in the unusual, although not unprecedented, position of having to determine, for the purposes of Australian citizenship law, the meaning and effect of s 64 and s 65 of the PNG Constitution. At a more general level of abstraction, Australian domestic choice of law principles can, in their application to torts committed abroad which become the subject of civil proceedings in Australia, require the ascertainment and application of foreign law as the lex loci delicti: see, for example, Neilson v Overseas Projects Corporation of Victoria Ltd (2005) 223 CLR 331 (Neilson v Overseas Projects Corporation). However, as will be seen, what makes the determination of the meaning and effect of foreign law unique in a case such as the present is a mutually intended interplay and complementarity of outcome as between Australian and Papua New Guinea law with respect to the acquisition or, as the case may be, loss of citizenship. Necessarily, any Australian judicial determination on the subject can have no more than persuasive value in Papua New Guinea, and the converse is also true. Yet any bifurcation of understanding as between Australia and Papua New Guinea would be antithetical to the mutually intended citizenship outcome on and from independence. Given this, it is an odd feature of the evidence before the primary judge that, even if there were no disposition to test an Australian understanding of the position with respect to Mr Lee's post-Independence citizenship before the courts of Papua New Guinea, there does not even appear to have been a disposition on the part of the Minister's department to seek, via diplomatic channels, from Papua New Guinea's Chief Migration Officer particulars of the view expressed to Mr Lee by his Deputy so as to gain greater understanding of that country's views as to the meaning and effect of its constitution. Further, neither party chose to lead expert evidence as to how the courts of Papua New Guinea would construe s 64 and s 65 of the PNG Constitution as they stood at Independence. 11 Mr Lee secured the declaration for which he applied: Lee v Minister for Home Affairs [2020] FCA 487. The class of persons of which Mr Lee is a member closed at midnight on 15 September 1975. It must surely now have relatively few members. Nonetheless, apparently for policy reasons relating to some of the reasoning of the learned primary judge, the Minister has chosen to exercise his right to appeal against the declaratory order. For his part, Mr Lee has additionally sought to support the declaratory order for further reasons as identified in a notice of contention. 12 In the course of oral submissions upon the hearing of the appeal, it became apparent that its disposition would entail consideration of an issue arising under or involving the interpretation of s 51(xxvii) of the Constitution - "immigration and emigration". That necessitated that the appeal be adjourned, part-heard, to enable notices to be given in accordance with s 78B of the Judiciary Act 1903 (Cth) and also to allow the parties an opportunity to make supplementary written and oral submissions. There has been no intervention but the parties have assisted the Court by the provision of supplementary submissions. 13 Furthermore, following the conclusion of the hearing of the appeal, it became apparent to us that certain evidence relevant to ascertaining the content of the unwritten law of Papua New Guinea should be formally admitted on the appeal and further submissions invited from the parties; this is set out in detail below. 14 Before turning to the reasons of the learned primary judge, the grounds of appeal and those identified in the notice of contention, it is convenient first to detail the Minister's position, the related provisions in Australian and Papua New Guinea law and certain additional, uncontroversial but material facts. It is also convenient in so doing to dispose of what are some truly incidental issues raised by those grounds. 15 As summarised in the Minister's submissions, his position is as follows. 16 The Minister submitted that, prior to Independence Day, persons born in Papua (but not in New Guinea) became Australian citizens at birth. This was because s 10(1) of the Australian Citizenship Act 1948 (Cth) (1948 Act), as it came to be renamed, provided that a person born in Australia was an Australian citizen. For the purposes of that section, the term "Australia" included areas within "Territories that were not trust territories": s 5(1), 1948 Act. Papua was such a territory. 17 In keeping with the different nature of Australia's relationship with New Guinea, New Guinea was not such a territory for the purposes of the 1948 Act. New Guinea was once a colony of Imperial Germany. It was seized during the First World War by the Australian Naval and Military Expeditionary Force. After that war, New Guinea was mandated to Australian administration by the League of Nations. In the aftermath of the Second World War, that mandate was transformed into a United Nations trusteeship. Persons born in New Guinea had the status of Australian-protected persons but never by birth there alone acquired Australian citizenship. 18 These propositions are not controversial. Nor in this Court could they be. The High Court expressly upheld them in Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Ame (2005) 222 CLR 439 (Ame), at [1]. It will be necessary later in these reasons for judgment to return to Ame and to highlight personal circumstances of Mr Ame, which provided the factual foundation against which that case was decided but which were very different to those of Mr Lee. 19 The next step in the Minister's position was reg 4 of the Papua New Guinea Independence (Australian Citizenship) Regulations 1975 (Cth) (Regulations), made under the Papua New Guinea Independence Act 1975 (Cth) (PNG Independence Act). That regulation relevantly provides: A person who - (a) immediately before Independence Day, was an Australian citizen . . . and (b) [upon] Independence Day becomes a citizen of [PNG] by virtue of the provisions of the [PNG Constitution], ceases on that day to be an Australian citizen. 20 Regulation 4 of the Regulations provides an Australian domestic law link with the PNG Constitution in relation to the cessation of the Australian citizenship of those persons to which it applies. 21 It was common ground that, before Independence Day, Mr Lee was an Australian citizen. The controversial question, which may be stated with deceptive simplicity by paraphrasing reg 4(b) of the Regulations, is therefore whether, on Independence Day, Mr Lee became a citizen of Papua New Guinea by virtue of the provisions of the PNG Constitution? If that question is answered in the affirmative, then Mr Lee ceased on Independence Day to be an Australian citizen. 22 From the Regulations, the Minister progressed to the PNG Constitution. He first submitted, and the position is, that, subject to exceptions not presently relevant, the PNG Constitution as adopted on Independence Day deliberately rejected the concept of dual citizenship. Within the PNG Constitution, and as the advice to Mr Lee from Papua New Guinea's Deputy Chief Migration Officer highlights, the relevant provisions are indeed s 64 and s 65 as they stood "[upon] Independence". 23 Section 64 of the PNG Constitution has, since Independence, been repealed and replaced and then further amended so as to modify initial limitations in relation to dual citizenship: by s 5 of the Constitutional Amendment (No 37) (Citizenship) Law 2014 (PNG) and then s 2 of the Constitutional Amendment (No 43) (Dual Citizenship) Law 2016 (PNG). It was not submitted by either party that regard to s 64 in any later form was relevant. That position is correct, as the focus of reg 4(b) of the Regulations is "[upon] Independence". 24 Section 64(1) provided, subject to certain presently irrelevant exceptions, that "no person who has a real foreign citizenship may be or become a citizen [of PNG]". A person did not have "real foreign citizenship" for the purposes of s 64(1) where the person was, relevantly: immediately before Independence Day, an Australian citizen … by virtue of …birth in the former Territory of Papua … and … was never granted a right (whether revocable or not) to permanent residence in Australia. [emphasis added by the Minister] 25 Section 65 of the PNG Constitution provided, materially: (1) A person born in the country before Independence Day who has two grand-parents who were born in the country or an adjacent area is a citizen. (2) … (3) … (4) Subsections (1) and (2) do not apply to a person who - (a) has a right (whether revocable or not) to permanent residence in Australia; or ... unless that person renounces his right to residence in Australia or his status as a citizen of Australia or of another country in accordance with subsection (5) [emphasis added by the Minister] 26 Ame, at [20] and [23], confirms what a reading of reg 4 of the Regulations and s 64 and s 65 of the PNG Constitution would in any event suggest, which is that a deliberate decision was made both by Australia, via its executive government in the making of the Regulations, and the people of Papua New Guinea, via their elected representatives, in adopting the PNG Constitution, that there would be complementarity of result under Australian and Papua New Guinea law in relation to acquisition or deprivation of citizenship on Independence Day. Indeed, the source in Australian domestic law of this complementarity with the PNG Constitution might more appropriately be regarded as s 4 of the PNG Independence Act: 4. Withdrawal of sovereignty etc of Australia. On the expiration of the day preceding Independence Day, Australia ceases to have any sovereignty, sovereign rights or rights of administration in respect of or appertaining to the whole or any part of Papua New Guinea. 27 With reference to this section, to reg 4 of the Regulations and to s 65(1) of the PNG Constitution, the Honourable Dr B H McPherson CBE, in his then capacity as a Deputy President of the Administrative Appeals Tribunal, stated, in Mahuru and Department of Immigration and Citizenship [2008] AATA 464 (Mahuru), at [15]: … It is true that regulation 4(b) of the Papua New Guinea Independence (Australian Citizenship) Regulations 1975 gave legal effect in Australia to what happened in Papua New Guinea on Independence Day; but that was no more than local recognition of the existing juristic fact that was accomplished by the joint operation of s 65 of the Constitution of the Independent State of Papua New Guinea and s 4 of the Papua New Guinea Independence Act 1975. 28 We record our indebtedness to Dr P M McDermott RFD (as the Deputy President then was) through whose scholarship in his article, Australian Citizenship and the Independence of Papua New Guinea (2009) 32(1) UNSW Law Journal 50, Deputy President McPherson's decision in Mahuru came to our attention. 29 Deputy President McPherson was, with respect, right to emphasise in Mahuru the underlying juristic fact of Independence, accepted by Australia, on terms set out in a constitution adopted by the people of Papua New Guinea, which included provision in s 64 and s 65 in respect of those who would automatically become citizens of that new nation. That emphasis is consistent with a point made in Ame, at [35], and highlighted in this way by Nettle J, sitting in the original jurisdiction, in Chetcuti v Commonwealth (2020) 95 ALJR 1, at [35]: [Although] questions of allegiance and alienage require identification of a relationship between the individual and the sovereign power in question, coming or ceasing to be within the ambit of the aliens power does not in every case depend on joint action on the part of both parties to the relationship: "persons may acquire the status or character of alienage by reason of supervening constitutional and political events not involving any positive act or assent on the part of the person concerned", or the individual or the sovereign power may so act unilaterally as to cause the individual to become amenable to an exercise of legislative power under s 51(xix) of the Constitution. Independence as accepted by Australia via the PNG Independence Act and on the terms set out in the PNG Constitution was a "supervening constitutional and political event". That event on those terms rendered a particular class of persons who were up until then Australian citizens, aliens as far as Australia was concerned and gave them, with or without their individual assent, automatic citizenship of the newly independent Papua New Guinea. That supervening events, national or international, may affect the meaning of terms such as "foreign" and "alien" and that, even without individual assent, such events might occasion a loss of citizenship, were emphasised in Ame, at [35] - [36]. 30 Ame might be regarded as offering an overwhelmingly usual, even unremarkable, example on the facts of the intended complementarity of result in relation to citizenship of this supervening constitutional and political event. Mr Ame was born on 20 May 1967, in Pale village, Ialibu district, in the Southern Highlands province of Papua. His four grandparents also were born in the Ialibu district of Papua. There is nothing in the facts of Ame which suggests that either those grandparents, or Mr Ame's parents, were Australian citizens otherwise than by reason of their birth in Papua. 31 Although persons such as Mr Ame were, before Independence Day, Australian citizens, they did not enjoy the same right to enter mainland Australia, or Tasmania, as did other Australian citizens. This differentiation was well known to, and undoubtedly keenly felt by, those responsible for the planning for Papua New Guinea's progression to sovereignty and the drafting of its constitution. The use in s 64(1) of the PNG Constitution of the expression, "no real foreign citizenship" was no coincidence and pregnant with historical meaning and personal experience. All of this is explained in Ame, at [17] and [18] and, as there highlighted, in even greater detail in Ch 4 of Pt 1 of the Final Report of Papua New Guinea's Constitutional Planning Committee (Constitutional Planning Committee Report). The upshot, however, was, as the High Court stated in Ame, at [21]: When the framers of the Papua New Guinea Constitution referred to persons who had a right to permanent residence in Australia, part of the contextual background in which that reference was made was an Australian immigration law which, according to its terms, and as it was administered, denied people such as the applicant a right to permanent residence in Australia in the absence of a specific grant. That background explains the terms of s 64(4). [Emphasis added] 32 Coincidentally, because Ame was not cited in the PNG cases concerned, this Australian judicial understanding with respect to the operation of the then s 64 of the PNG Constitution in relation to a person in circumstances such as Mr Ame accords with the PNG judicial understanding of the operation of that provision with respect to the post-Independence citizenship position of such a person: see Ikowari v Minister for Foreign Affairs [2018] PGNC 236; N7324 (Cannings J) and Charlie v Kantha [2020] PGNC 446; N8619 (Cannings J). In neither of these PNG cases was it necessary for that learned judge, who is in charge of the National Court's "Human Rights Track", to pass upon the meaning and effect of s 65(4)(a) of the PNG Constitution in circumstances such as the present. 33 As will be seen, Mr Lee was not at Independence a person such as Mr Ame. 34 The prevailing position immediately prior to and on Independence Day under the Migration Act 1958 (Cth) (Migration Act) in relation to a right of permanent residence in Australia was as stated by the High Court in Ame, at [22]: At the time, s 6(1) of the Migration Act provided that an immigrant who entered Australia without an entry permit was a prohibited immigrant. Such a person was liable to deportation under s 18. Sections 6 and 7 provided for the discretionary grant of entry permits, which might be temporary or permanent. A right of permanent residence (in practice, a right to re-enter Australia free of the constraints of s 6) could be acquired by a person who was granted a permanent entry permit (s 15). Before Independence Day, Papua was an external Territory of Australia. External Territories were excluded from the definition of Australia in s 17 of the Acts Interpretation Act 1901 (Cth). The Migration Act did not define Australia in any manner inconsistent with the definition in the Acts Interpretation Act. Section 5(4) of the Migration Act referred to persons who had left Australia but not "entered any country other than a Territory outside Australia". That was consistent with an external Territory being outside Australia. The Migration Act defined "immigrant" to include persons entering Australia for temporary or permanent purposes. The Act applied, and was administered on the basis that it applied, to persons entering mainland Australia from external Territories. 35 Like Mr Ame, Mr Lee was born before Independence Day in Papua. Unlike Mr Ame, each of Mr Lee's parents was, at the time of his birth, an Australian citizen, not by the coincidence of birth in Papua but rather by naturalisation under the 1948 Act. Mr Lee's father, Mr Gordon King Wai Lee, was born in Rabaul, New Britain in New Guinea on 9 July 1941. He became an Australian citizen by naturalisation on 26 August 1964. Mrs Lee, was born in the then British Crown Colony of Hong Kong on 1 March 1946. His mother and father married on 14 April 1973. She became naturalised under the 1948 Act as an Australian citizen on 20 December 1973. 36 Like Mr Ame, Mr Lee had two grandparents who were, in terms of s 65(1) of the PNG Constitution, "born in the country". The two grandparents concerned were each born in New Guinea. Mr Lee's paternal grandfather, Mr Tai Loi Lee, was born in Namatanai on 25 July 1917. He became an Australian citizen by naturalisation under the 1948 Act on 13 July 1966. His wife was born in Rabaul, in or about 1919. She died in Sydney in 1959. The learned primary judge found, at [9], that she, too, became an Australian citizen by naturalisation under the 1948 Act. 37 That, in Mr Lee's case, his two grandparents who were "born in the country" were each naturalised Australian citizens may be something of a distraction. That is because s 65(1) of the PNG Constitution is textually agnostic as to whether the two grandparents concerned were or were not Australian citizens of any kind and, more especially, were or were not "indigenous persons" at or before Independence Day. 38 The absence of any adjectival qualification in the text of s 65(1) was not a coincidence. 39 Such a qualification was envisaged by the Constitutional Planning Committee (CPC) in its report: Constitutional Planning Committee Report, Ch 4, Pt 1, [21]: Any person who was born in Papua New Guinea before the citizenship law comes into force (on what we call in this Chapter "C-Day") shall be a citizen of Papua New Guinea if: • he or she is not a "real" citizen of a foreign country; and • he or she has at least two indigenous grandparents. 40 The history of the drafting of the text of s 65(1) of the PNG Constitution is explained by Associate Professor Hassall of the School of Government, Victoria University of Wellington in A J Regan, O Jessep and E L Kwa (eds), "Twenty Years of the Papua New Guinea Constitution", University of Papua New Guinea Press, 2010, Ch 16 (Hassall), by reference, inter alia, to an authoritative earlier work, EP Wolfers, "Defining a Nation: The Citizenship Debates in the Papua New Guinea Parliament", in F S Stevens and E P Wolfers (eds), "Racism, the Australian Experience, Vol 3: Colonialism and After: A Study of Race Prejudice in Australia", (Sydney: ANZ Book Company, 1977), pp 303 - 304. Hassall, at p 256, states: With independence came the opportunity to assert the primacy of national interests over expatriate interests. Whereas the majority of residents of Papua New Guinea were easily nominated as "automatic" recipients of citizenship on the basis of descent, contention surrounded the conditions under which members of non-indigenous minority groups could become "naturalised" citizens. While not great in total number, many of them held advantageous positions in the economy and bureaucracy, especially Europeans and Chinese. Europeans generally already possessed citizenship elsewhere, and the suggestion that they be allowed dual citizenship status following independence was rejected outright. Residents of Chinese and mixed-race descent had access to Australian citizenship at the discretion of Australia's Minister for External Territories, and as independence approached each had to decide to which state it would give its primary allegiance. [Emphasis added] 41 In light of the emphasised passage in this extract from Hassall, we interpolate that Mr Lee is of Chinese descent. His parents (and paternal grandparents for that matter) offer a paradigm example of those of such descent who, before Independence, had access to Australian citizenship by an exercise of Ministerial discretion under the 1948 Act, and chose to acquire such citizenship. 42 Hassall, at p 257, notes that, "The major differences between the CPC and the government concerned the definition of 'automatic' citizens, and the requirements for naturalisation (the government's proposals involving fewer barriers to entry)". Further detail as to these differences and how that came to be resolved by compromise and manifested in the text of s 65(1) of the PNG Constitution is offered by Professor Donald Denoon, in his chapter, "Creating a Constitution", in "A Trial Separation: Australia and the Decolonisation of Papua New Guinea" Pandanus Books, 2005, to which we were helpfully referred by the parties. As Professor Denoon explains, at p 123, citizenship was a "noxious issue", and "citizenship defined by ethnicity would pose serious procedural and moral - and political - problems". Just how intensely personal amongst Papua New Guinea's founders were those "political problems" is revealed by Hassall, at p 256: The issue of the number of "indigenous" grandparents required was vital to some prominent figures at the time of independence, who were themselves of mixed racial descent. Ironically, the desire for stringent requirements in this regard was resisted because it would have disenfranchised these leaders. The debate on this subject pointed to the futility of identifying automatic citizenship with a notion of racial or ethnic purity. 43 In another chapter in that same work, authored by Professor Woolfers, it is explained, at p 322, how the recommendation of the CPC, requiring indigenous grandparents, was opposed by the government of the by then internally self-governing Australian Territory of Papua New Guinea, including by its Chief Minister Michael Somare with the opposition being reflected in a government White Paper, which recommended that "a person with two grandparents born in Papua New Guinea - 'regardless of race', and not indigenous grandparents, as the Constitutional Planning Committee had proposed - should become a citizen on C-day unless he or she possessed a right of residence in Australia or were a citizen of another country". "C-day" was the term which had been adopted by the CPC for the purposes of making its recommendations as to the timing of citizenship on Independence. 44 The intended complementarity in relation to acquisition or, as the case may be, loss of citizenship as between the PNG Constitution and reg 4 of the Regulations occasions singular statutory construction challenges for both the executive and judicial branches of government in Australia and in Papua New Guinea. Reflecting the unique circumstances attending Independence, each looks to the law of the other on the subject of the acquisition or, as the case may be, loss of citizenship. In each country, the chosen yardstick is, on and from Independence, a foreign law. Further, one yardstick, the PNG Constitution, is not merely domestic legislation but the foundational instrument of government. As already mentioned, the parties chose in the present case not to lead expert evidence as to the meaning, as a matter of Papua New Guinea law, of s 64 or s 65 as they stood at Independence. Neither does this course appear to have been adopted in Ame. Instead, in Ame, the High Court chose directly to look to the Constitutional Planning Committee Report for interpretative assistance. 45 We were not pressed on behalf of Mr Lee with any submission, based on an observation by Gummow and Hayne JJ in Neilson v Overseas Projects Corporation, at [115], that, as to the meaning of s 64 and s 65, Ame was a decision about the content of foreign law which created no precedent. The deliberate incorporation by reference by the Regulations of PNG's citizenship provisions, and the position of this Court relative to the High Court in the judicial hierarchy, might have made any such submission difficult to sustain. In any event, the interpretation of these provisions forms part of the unwritten law of PNG. 46 We are entitled, by s 175 of the Evidence Act 1995 (Cth) (Evidence Act), to look to the law reports of that country to ascertain the content of that unwritten law. Because of the evidentiary quality they have in relation to PNG law, we consider that the various PNG law reports to which we and the parties have referred ought to be made evidence on the hearing of the appeal. Anticipating this, the Minister, caused such materials to be appended to affidavits made by a solicitor (Ms C F Bush) in the employ of his solicitors. Also exhibited to these affidavits are PNG legislation referred to by the parties, admissible pursuant to s 174(1)(c) of the Evidence Act. The parties were at one in asking the Court to treat such materials as evidence in the proceedings. We have done so. In so doing, we are conscious that this takes the evidence beyond that which was led in the original jurisdiction. However, touching as they do on the construction of the PNG Constitution, it is overwhelmingly in the interests of justice in the unusual circumstances of this case that the Court receive and consider them. 47 Because our research ranged beyond authorities already canvassed in submissions and had disclosed further textual materials highlighting the historical background to the adoption on Independence of the text of s 64 and s 65 of the PNG Constitution, we considered that the interests of justice required that, before reaching any concluded views, the parties be offered an opportunity to make further supplementary submissions. For this purpose, we disclosed to the parties these textual materials and certain Papua New Guinea cases and the apparently revealed content of Papua New Guinea's unwritten law and offered each an opportunity to make supplementary submissions as to the use, if any, which might be made of such materials, the correctness or otherwise of apparently content of Papua New Guinea's unwritten law and the ramifications of these materials and cases in relation to the construction of s 64 and s 65 of the PNG Constitution. Each party took up that opportunity. We record our particular appreciation for the diligence and scholarship evident in the consequential supplementary submissions of counsel, upon which we have drawn for the purposes of this judgement. The affidavits mentioned conveniently draw together the combined result of the Court's and the parties' additional research. 48 Regard to reports of Papua New Guinea cases discloses a consistent practice, on and from Independence, by Papua New Guinea's ultimate appellate court, the Supreme Court of Justice, of looking to the Constitutional Planning Committee Report for interpretative assistance: see, for example, in the early post-Independence period, Re Motion of No Confidence [1976] PNGLR 228, at 234, per Frost CJ and, at 239, per Saldanha J and, more latterly, In re Application by Geno [2016] PGSC 81; SC1581, at [29] (a joint judgment of a specially constituted five member bench, Kirriwom, Kandakasi, Lenalia, Manuh and Collier JJ). This practice is, as the Minister submitted, in conformity with s 24 of the PNG Constitution, which provides that the Constitutional Planning Committee Report may be used as an aid to interpretation: see also In re Reference to Constitution section 19(1) by East Sepik Provincial Executive [2011] PGSC 41; SC1154 at [168]-[169]. 49 The reports also disclose, with respect unsurprisingly, that recourse to the Constitutional Planning Committee Report for interpretative assistance is not uncritical with the Supreme Court being astute, in constitutional interpretation, to compare, contrast and consider in context the occasion for departures in the text of the Constitution from the recommendations of the CPC: see, for example, Re Constitution S49 as read with S19 Evidence Act (Ch 48) and S11 Medical Registration Act 1983 [1985] PNGLR 247, at 254, per Pratt J, Amet J (as his Honour then was) agreeing. This, too, is in conformity with s 24 of the PNG Constitution, which envisages ranging beyond the Constitutional Planning Committee Report to materials such as the proceedings in the Constituent Assembly and the White Paper, referred to in the texts reproduced above. The reports also disclose that the material which may be considered as an aid to constitutional interpretation in Papua New Guinea is not limited to the materials listed in s 24 of the PNG Constitution: Reference by the Western Highlands Provincial Executive [1995] PGSC 6; SC486. 50 The reports of Papua New Guinea cases also disclose, as the Minister submitted, that the approach in that country to the proof and use of what may be termed constitutional and legislative facts is similar to that in Australia and, indeed, in part draws upon Australian authority for that purpose: see SCR No 2 of 1982 (No 1); Re the Organic Law on National Elections (Amendment) Act 1981 [1982] PGSC 19; [1982] PNGLR 214, at 227 - 228, citing Commonwealth Freighters Pty Ltd v Sneddon (1959) 102 CLR 280, at 292; Special Reference By Fly River Provincial Executive Council; Re Organic Law on Integrity of Political Parties and Candidates [2010] PGSC 3; SC1057, at [46]. An example of the adoption of this approach is offered by The Ship 'Federal Huron' v Ok Tedi Mining Ltd [1986] PNGLR 5, at 13 - 15, in which the PNG Supreme Court construed sch 2.2 of the PNG Constitution by reference to academic commentary on the development of the PNG Constitution. 51 In Australia, subject always to observance of procedural fairness, constitutional or legislative facts need not be proved by admissible evidence for the purpose of construing the Constitution. Aside from the contents of Federation Convention debates, academic works and historical accounts are, as the Minister submitted and Mr Lee accepted, consulted: Breen v Sneddon (1961) 106 CLR 406, at 411; Gerhardy v Brown (1985) 159 CLR 70, at 141 - 142; Woods v Multi-Sport Holdings Pty Ltd (2002) 208 CLR 460, at [65]; Thomas v Mowbray (2007) 233 CLR 307, at [614] - [626]; Cadia Holdings Pty Ltd v New South Wales [2010] HCA 27; (2010) 242 CLR 195, at [76] (referring to the work of "serious historians"); Selway, "The Use of History and Other Facts in the Reasoning of the High Court of Australia" (2001) 20 University of Tasmania Law Review 129, at 140-141; S Gageler, "Fact and Law" (2008 - 2009) 11 Newcastle Law Review Vol 1, at 18 - 22. 52 Although the High Court did not, in Ame, explore, in the way we and the parties have in the present case, the PNG authorities and texts bearing on the construction of the PNG Constitution, Ame nonetheless, with respect, evidences an orthodox approach to the interpretation of the PNG Constitution. However, the factual circumstances against which Ame was decided, unlike those of the present case, did not call for any examination of how the observations and recommendations in the Constitutional Planning Committee Report evolved into the text of s 65(4)(a) of the PNG Constitution as adopted at Independence. The importance of the debates in the Constituent Assembly and the White Paper, summarised in the academic works referred to, is in the revelation these secondary materials offer about why the CPC's recommendations were not in this instance taken up and the prevailing understanding at the time of, materially, the special position, pre-Independence, of ethnic Chinese residents in relation to the acquisition of what the PNG Constitution would come to term, "real foreign citizenship" with all of the benefits that entailed. That is of importance when considering the meaning of "right to permanent residence" in s 65(4)(a) of the PNG Constitution. These secondary materials, like the Constitutional Planning Committee Report, may be consulted for the purposes of construing the PNG Constitution. 53 Once the history of the subsequent reception of the CPC's recommendation that an automatic citizenship criterion be two indigenous grandparents is revealed, a contention advanced by Mr Lee that such an adjectival qualification should nonetheless be implied is just not tenable. Instead, the Minister's submission that there is no such qualification must be accepted. 54 That conclusion necessarily directs attention to the Minister's challenge to the correctness of the finding made by the learned primary judge that Mr Lee fell within s 65(4)(a) of the PNG Constitution as a person who, at Independence, had a right to permanent residence in Australia and that, therefore, s 65(1) did not apply to make him a citizen of PNG. His Honour's consequential finding, in itself unremarkable in light of that, was that reg 4 of the Regulations did not deprive him of Australian citizenship. 55 The reason why his Honour found that Mr Lee fell within s 65(4)(a) of the PNG Constitution was that he considered that if Mr Lee had sought to enter Australia with his mother on Independence Day, he would not have been an "immigrant". 56 The Minister also sought, by an amendment to his notice of appeal as filed, to raise an additional issue, not directly raised below, ground 1A, which was that the learned primary judge erred by failing to find that, prior to 16 September 1975, Mr Lee had not been "granted" a "right ... to permanent residence in Australia" for the purposes of s 65(4)(a) of the PNG Constitution. 57 The point not having been taken below, to raise such an issue would require a grant of leave, as the Minister appreciated. However, in our view, the raising of the issue occasions no evidentiary embarrassment to Mr Lee. 58 In the original jurisdiction, Mr Lee had advanced a submission that, even if he and his mother were "immigrants", his mother's passport, in which he was named, was an entry permit giving them a right to reside permanently in Australia, ie that he had been "granted" such a right under the Migration Act. He relied upon s 6(8) of the Migration Act, which provided: A child under the age of sixteen years who enters Australia in the company of, and whose name is included in the passport of, or any other document of identity of, a parent of the child shall be deemed to be included in any entry permit granted to that parent before the entry of that parent and written on that passport or other document of identity, unless the contrary is stated in the entry permit. 59 Mr Lee submitted to the learned primary judge that it should be inferred that his name was included in his mother's passport prior to Independence Day. The passport in question had been long since been returned to the Commonwealth. Neither it nor a copy thereof could be produced at trial. At trial, Mr Lee's mother did not depose that he was included in her passport before Independence Day. The learned primary judge concluded, at [86], "it seems just as probable that he was included after Independence Day, since they did not travel to Australia until 31 October 1975. In any event, s 6(8) does not assist the applicant. It is inapplicable because no entry permit was granted to his mother". 60 There is no reason to doubt the correctness of these particular findings and on this issue the conclusion of the learned primary judge. In relation to the additional issue raised by the Minister, the point is that the evidentiary foundation for whether Mr Lee had been granted a right of permanent residence in Australia had already been explored and Mr Lee had put at its highest his evidentiary case that there was such a grant. The Minister's additional issue in relation to the construction of s 65(4)(a) of the PNG Constitution is based on that same evidentiary foundation. It is otherwise a pure point of law. We would therefore grant the Minister leave to amend his notice of appeal so as to raise ground 1A. 61 At the heart of the Minister's submission was the proposition, admittedly found in a sentence in Ame, at [23], that "[t]he right to permanent residence referred to in s 65(4)(a) [of the PNG Constitution] is the same as the right referred to in s 64(4)(b), that is to say, the right which a small number of Papuans had received by grant, not a right which all Papuans had by virtue of birth in the Territory of Papua at a time when it was an external Territory of Australia". From this it was said to follow that, the learned primary judge having, correctly, found that Mr Lee had not been granted permanent residence under the Migration Act, ought to have concluded that he had no right to permanent residence in Australia and, therefore, did not fall within an exception in s 65(4)(a) of the PNG Constitution to the acquisition of automatic citizenship. 62 It is both desirable and necessary to set out in full [23] of the joint judgment in Ame: It is improbable in the extreme that it was the purpose of s 65 of the Papua New Guinea Constitution to exclude from citizenship of the new nation all indigenous Papuans living at Independence Day unless they took positive steps to renounce their Australian citizenship. The purpose was the opposite. Although indigenous Papuans were Australian citizens before Independence Day, they were treated by Australian law, and regarded by the framers of the Papua New Guinea Constitution as not having, on that account alone, a right to permanent residence in Australia. The right to permanent residence referred to in s 65(4)(a) is the same as the right referred to in s 64(4)(b), that is to say, the right which a small number of Papuans had received by grant, not a right which all Papuans had by virtue of birth in the Territory of Papua at a time when it was an external Territory of Australia. The construction which the applicant seeks to place on s 65 must be rejected. On Independence Day, the applicant became a citizen of Papua New Guinea by virtue of the Papua New Guinea Constitution. That Constitution was antagonistic to dual citizenship. In recognition of that policy of the new Independent State, Australia, by reg 4, withdrew the applicant's Australian citizenship. That withdrawal was not arbitrary. It was consistent with the maintenance of proper relations with the new Independent State, and with the change that occurred in Australia's relationship with the inhabitants of that State. It is necessary now to consider whether that regulation was valid. [Emphasis added] 63 It is essential to read the sentence emphasised not just in the context of [23] of the joint judgment in Ame but also in the context of that judgment as a whole, especially the reference in [21] in the discussion of the then Australian immigration law position to the law having "denied people such as the applicant a right to permanent residence in Australia" and in the context of the factual background against which Ame was decided. Mr Lee submitted as much. 64 The only basis upon which, before or at Independence, a person such as Mr Ame might, under s 6 of the Migration Act, have secured a right to permanent residence in Australia (as defined for the purposes of that Act) was by a specific grant of an entry permit. It was not necessary for the High Court to consider, and that Court did not consider, whether and, if so, how, a person in Mr Lee's different circumstances might, before or at Independence, have acquired a right to permanent residence in Australia. Neither did the High Court, provoked by such a need on the facts, have to consider whether s 65(4)(a) of the PNG Constitution, where the word "grant" appears not at all, nonetheless had no application even if a person under the then Australian law, had a right under that law to permanent residence in Australia. 65 Yet further, what is not stated in the proposition found in Ame at [23] is that, even if the word "grant" is to be read into s 65(4)(a) of the PNG Constitution, it is also to be read as meaning, "granted under the Migration Act 1958 (Cth) as it stood immediately prior to Independence", as opposed to "granted under Australian law". 66 The history of the evolution of pre-Independence consideration of acquisition of automatic citizenship on the occasion of Independence of Papua New Guinea, discussed above, makes it plain that the discriminatory privilege of access to Australian citizenship by naturalisation enjoyed by, materially, ethnic Chinese residents of the Territory of Papua and New Guinea was well-understood at the time when the text of s 64 and s 65 of the PNG Constitution adopted at Independence was finally settled. Given the history mentioned, it would be a distinctly odd construction of s 65 of the PNG Constitution to construe the exception to the acquisition of automatic citizenship found in s 65(4)(a) as applicable just to the category of those who had a right to permanent residence in Australia, as defined for the purposes of the Migration Act, by virtue of the grant to them of an entry permit under that Act but as not applicable to any persons who otherwise at Independence under Australian law had a right to permanent residence in Australia as so defined, because they were not "immigrants". It should not be assumed that there was ignorance, either in Australia as the then administering power or, particularly, in what became Papua New Guinea, in the lead up to Independence, that there was also a category of Australian citizens, which included those of Chinese descent in Papua and New Guinea not just eligible to receive but possessed of such citizenship, by naturalisation, who were not under prevailing Australian law "immigrants" and needed no entry permit under the Migration Act to enter "Australia" as defined for the purposes of that Act. The drafting history discussed makes it clear to the point of demonstration that each category was regarded as having a "real foreign citizenship". Neither, in light of the exceptional references in s 64(2) and s 64(3) of the PNG Constitution to the position of persons under the age of 19 years at Independence, should it be assumed that there was ignorance of the possibility that such naturalised Australian citizen parents might have a child born in Papua who had thereby, before Independence acquired Australian citizenship but who may have needed no formal entry permit to enter and remain in Australia. 67 Ground 1A is therefore based on premises as to the construction of s 65(4)(a) of the PNG Constitution which should not be accepted. Quite apart from introducing into the text a word, "grant", which is not present, that construction in any event would uncritically assimilate "grant" as present by implication (flowing from its use in s 64) in a constitutional provision with a formal grant by entry permit under the Migration Act of permanent residence. For the reasons given, such an assimilation is misplaced in the construction of the PNG Constitution. If "grant" be present by implication, it means nothing more than granted under Australian law. That includes but is not limited to the grant of an entry permit under the Migration Act. 68 Appreciating this potential flaw in ground 1A, the Minister submitted that, in any event, the learned primary judge was in error in concluding that, at Independence, Mr Lee had a right to permanent residence in Australia. As to this, he particularly relied upon an earlier judgment of the Full Court, Minister for Immigration and Multicultural and Indigenous Affairs v Walsh (2002) 125 FCR 31 (Walsh). 69 Ms Walsh was born out of wedlock in Papua in 1970. Her father was an Australian citizen otherwise than by the coincidence of his birth in the then external territory. Her mother was an indigenous Papuan and thus, at the time of Ms Walsh's birth, an Australian citizen solely by reason of the coincidence of her birth in that territory. At the time of her birth, her parents were living together but not married. They did later marry. Ms Walsh had not entered mainland Australia prior to Independence. 70 The subject of whether Ms Walsh, prior to Independence, had, by virtue of her father's Australian citizenship, a right to permanent residence in Australia (other than in what became Papua New Guinea) did arise in Walsh but that was not the principal issue raised for determination on the appeal. The submissions to the Full Court on that subject were correspondingly abbreviated. Understandably therefore, and with respect, the subject received only cursory attention by the Full Court. The relevant passage is to be found, at [26] - [29], in the joint judgment under the heading, "Right of residence flowing through the father". It should be set out in full: 26 The case was conducted upon the basis that Ms Walsh's father remained an Australian citizen, and was entitled to permanent residence in Australia until his death. The Minister's submissions in this Court accepted that this was so. 27 Ms Walsh was five years of age at independence and was then living with her parents in PNG. The written submissions lodged on her behalf in this Court assert that: "Her rights were correspondent with her father's rights. Her father was the responsible parent", but do not show how, or in what way, her father's right of residence produces a corresponding entitlement on the part of Ms Walsh. 28 The submissions further assert that her father would, before and after Independence Day, have been entitled to an Australian passport, and to have Ms Walsh included on his passport. The primary judge concluded that whilst this might be so, it did not lead to the conclusion that Ms Walsh was entitled to Australian residence. The submissions put on behalf of Ms Walsh do not suggest, let alone expose, any error in this respect. 29 It may be that had Ms Walsh been included on her father's passport, and had she sought to enter Australia, she may have been permitted to do so. That falls far short, however, of establishing that, at Independence Day, she had a right of permanent residence in Australia by virtue of her father's entitlement in that respect. 71 The learned primary judge was well aware of, and took into account, Walsh. He made, at [90], this observation concerning that case: 90 In Walsh at [19], the Full Court held that possession of Australian citizenship may be an important factor, but is not decisive of whether a person is an "immigrant". In this case, the applicant's mother became a citizen by the grant of a certificate of citizenship. In my opinion, the fact that a decision was actively made by the Minister (or a delegate) to grant citizenship to the applicant's mother is an indicator of her acceptance into the Australian community. That may be contrasted with acquisition of citizenship merely by virtue of birth in an Australian territory. 72 In the result in the present case, the primary judge made very particular findings of fact concerning the residential intentions of Mr Lee's mother. His Honour concluded that, at the time of Mr Lee's birth and thereafter until she moved here permanently in 1982, she intended to reside in mainland Australia once her husband's employment in what became Papua New Guinea ceased. At the time of Mr Lee's birth, his father was working in a managerial position for an Australian airline in Rabaul in New Guinea. The primary judge found that, for the purposes of their intended return to mainland Australia, Mr Lee's parents had purchased a house in Brisbane in 1975 or 1976 and moved there with him permanently in 1982. 73 A number of the Full Court's conclusions in Walsh were either not controversial in the present case or should, in any event, be accepted as correct: (a) at [15]: "Section 65(4) of the PNG Constitution can only sensibly be read as referring to 'Australia'' in a sense that does not include the (former) territories of Papua and New Guinea." Notably, given the reliance by the Minister, discussed and rejected above, on the sentence in Ame, at [23], as emphasised by us, the Full Court, in Walsh, at [15], added to the sentence just quoted, "Thus Ms Walsh became a PNG citizen on Independence Day, unless she then had a right to permanent residence in (mainland) Australia" [our emphasis]. That understanding of the construction of s 65(4) of the PNG Constitution eschews any addition by implication of "grant" and accords with the conclusion we have reached as to the true construction of that provision; (b) at [16]: in 1975, the Migration Act imposed immigration controls upon an "immigrant" proposing to enter Australia; (c) at [16]: at that time, the Migration Act "was then framed as a law with respect to immigration, deportation and emigration (under s 51(xxvii) of the Constitution of the Commonwealth)"; (d) at [16]: s 6(1) of the Migration Act then provided that an "immigrant" who entered Australia without an "entry permit" thereby became a "prohibited immigrant", and thus liable to deportation under s 18; (e) at [16]: an "immigrant" could obtain an "entry permit" under s 6(2) of the Migration Act, which could be either temporary or permanent in character; (f) at [16]: a person who was not an "immigrant" was not subject to that control, and therefore by implication had the right to enter and remain permanently in Australia; (g) at [17]: amendments made to the Migration Act that came into effect in 1984 were based on a different source of legislative competence, the power to make laws in respect of aliens under s 51(xix) of the Constitution. The result of those amendments, which regulated the entry into Australia of "non-citizens" and which are not presently relevant, has been that, since 1984, Australian citizens have had the right to enter and reside in Australia: Air Caledonie International v Commonwealth (1988) 165 CLR 462, at 469. (h) at [18]: immediately prior to Independence, "Immigrant" was defined in s 5(1) of the Migration Act so as to include "a person intending to enter, or who has entered, Australia for a temporary stay only, where he would be an immigrant if he intended to enter, or had entered, Australia for the purpose of staying permanently"'; (i) at [19]: "immigration", under s 51(xxvii) of the Constitution and the Migration Act as at Independence, is largely confined to persons who are not members of the Australian community; (j) at [19]: possession of citizenship "may be an important factor in determining whether a person has become absorbed in the Australian community and thus outside the immigration power, but it may not be decisive"; (k) at [19]: "An Australian national may, in some circumstances, enter Australia as an immigrant and regulation of such entry is within the constitutional competence of the Commonwealth Parliament: R v Macfarlane; Ex parte O'Flanagan and O'Kelly (1923) 32 CLR 518 at 580". 74 Flowing from propositions (f) and (h), the Full Court in Walsh, and the learned primary judge in the present case, identified that in 1975, at Independence Day, in determining whether the applicant, Ms Walsh, or as the case may be, Mr Lee, had a right to permanent residence in Australia, the question was not whether they were Australian citizens but whether, had they sought to enter Australia, they would have been an "immigrant"? The Migration Act used the word "immigrant" in the same sense as "immigration" in s 51(xxvii) of the Constitution. It was because of this that it was accepted in the present case that it may entail an issue arising under the Constitution or at least involving its interpretation. 75 The Minister submitted that the emphasis given by the learned primary judge to the subjective intention of Mr Lee's mother in deciding whether she, and, via her intention, he as an infant at Independence, was an "immigrant" led him into error. He relied on a series of cases decided prior to the 1948 Act and the introduction by that Act of the status of Australian citizen. 76 The early cases to which the Minister referred were Ah-Yin v Christie (1907) 4 CLR 1428, at 1432 and 1437; Chia Gee v Martin (1905) 3 CLR 649, at 654; R v Macfarlane; Ex parte O'Flanagan and O'Kelly (1923) 32 CLR 518 (R v Macfarlane), at 532 and 580; and Potter v Minahan (1908) 7 CLR 277 (Potter v Minahan), at 287 - 290. In our respectful view, an accurate summary of the effect of these early cases and others was offered by Starke J in R v Macfarlane, at 580, in a passage relied upon by the Minister: Immigration and emigration in the Constitution connote the movement of human beings into and out of the Commonwealth. And a law with respect to these subjects may not only encourage that movement but also restrict it. The power to deal with this movement is not founded upon the intent of the person entering into or departing from the Commonwealth, but upon the fact of entry or of departure (China Gee v. Martin). But the Constitution unites into a Federal Commonwealth the people of Australia. The entry into the Commonwealth of a person who at the moment of entering is already one of the people of Australia could hardly be described as an immigration into the Commonwealth: it would in truth be the return of an Australian to his homeland. And so this Court has decided (Potter v. Minahan; and see also Ah Sheung v. Lindberg). Whether any given person is one of the people of Australia is necessarily a question of fact. I agree, however, with the observation of my brother Isaacs in Potter's Case, and am of opinion that neither locality of birth nor nationality nor domicile is a decisive test, but simply an evidentiary fact, of more or less weight according to the circumstances of the particular case. But with this limitation - which is implied in the Constitution and controls the authority of Parliament - the legislative power with respect to immigration extends to every person entering the Commonwealth, whether a British subject or an alien. The history of the immigration laws of the Empire tends to confirm this conclusion (Keith's Responsible Government in the Dominions, Vol. II., Part V.,Ch. 4, pp. 1075-1100), but it would be unsafe to lay much stress upon it, for those laws were largely made by legislative bodies having plenary power within their territorial limits, and not by bodies restricted to specified powers, as in the case of the Parliament of the Commonwealth. [Emphasis added - footnote references omitted] 77 As the particular parts of that summary offered by Starke J in R v Macfarlane to which we have given emphasis indicate, a number of propositions emerge from the cases in relation to the determination of who is an "immigrant": (a) the intent of the person entering into Australia is not determinative; (b) "immigration" is constituted by the fact of entry into Australia; (c) proposition (b) is qualified by necessary constitutional implication in that the entry into Australia of a person who at the moment of entering is already one of the people of Australia could hardly be described as immigration into Australia; (d) whether or not a person is an "immigrant" is necessarily a question of fact; (e) as to that question of fact, "neither locality of birth nor nationality nor domicile is a decisive test, but simply an evidentiary fact, of more or less weight according to the circumstances of the particular case". 78 The judgment of Starke J in R v Macfarlane is also instructive for its revelation as to the then stage of progression of Australia from self-governing British Dominion to fully independent, sovereign nationhood, as evidenced by his Honour's understanding, undoubtedly with respect correct at the time, although not now, that an alien was a person who was not a British subject. 79 The Minister's submission that the intent of the person entering into Australia is not determinative as to whether or not they are an "immigrant" is, undoubtedly, correct. That is not to say intention is irrelevant, only that it is not, and cannot be, determinative. 80 The Minister's further submission that "immigration" is constituted by the fact of entry into Australia is correct only if qualified by the limits of the Parliament's legislative competence under s 51(xxvii) of the Constitution in that a person who at the moment of entering Australia is already one of the people of Australia is not an "immigrant". 81 At a time when the status of a British subject was pervasive throughout a vast, geographically disparate British Empire of which, after Federation, Australia was a self-governing part, it is hardly surprising that prior residence in Australia was a relevant, important discrimen in relation to whether or not a particular British subject or alien was, on entry, an "immigrant". Then prevailing Australian national public policies in relation to immigration, long ago now discarded, served to underscore the importance of that particular discrimen. Of course residence remains relevant but, ever since the 1948 Act introduced the separate, statutory status of Australian citizenship, another relevant criterion has been found in that status. Further, as to that status, the importance, in terms of unrestricted membership of the Australian community as a whole, of the acquisition of Australian citizenship by naturalisation, is not to be diminished, especially in the context of deciding who is an "immigrant". 82 Citizenship has been described as the antonym of alienage: Koroitamana v Commonwealth (2006) 227 CLR 31, at [48], per Gummow, Hayne and Crennan JJ, citing Re Minister for Immigration and Multicultural Affairs; Ex parte Te (2002) 212 CLR 162, at [31], [58], [90], [108]-[109], [193]-[194], [210]-[211], [229]; see also Shaw v Minister for Immigration and Multicultural Affairs (2003) 218 CLR 28, at [2]; per Gleeson CJ, Gummow and Hayne JJ and Love v Commonwealth of Australia (2020) 94 ALJR 198 (Love), at [5], [172], [213], [295], [394]. The acquisition of citizenship by naturalisation can occur only by statute, it being beyond the prerogative powers of the Crown to confer that status: Pochi v MacPhee (1982) 151 CLR 101, at 111, per Gibbs CJ. 83 "Naturalisation", according to Quick and Garran ("The Annotated Constitution of the Australian Commonwealth", Lexis Nexis Butterworths, 1901, p 709, [194]), is, "the process, defined by law, by which an alien renounces his original allegiance and is converted into a subject or citizen, entitled to all the rights and privileges of natural-born citizens in the country in which he domiciled". The understanding at Federation, evident in this description, of naturalisation conferring entitlement to all of the rights and privileges of a person who has otherwise acquired citizenship of the country concerned was not inconsistent with the process of conferral of citizenship by naturalisation for which the 1948 Act provided immediately prior to Independence. The 1948 Act did not then contain a Preamble such as that presently found in its successor, the 2007 Act, in which it is stated, "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". But, with the notable exception of pre-Independence Papua, for which, as is highlighted in Ame, the Parliament was entitled to make special provision in the exercise of the territories power found in s 122 of the Constitution, the notion of Australian citizenship as a "common bond" representing "full and formal membership of the community of the Commonwealth of Australia" is not unique to our times. As Kiefel CJ observed of the Preamble to the 2007 Act in Love, at [10], and with reference to the Preamble and s 24 of the Constitution, "The community there referred to may be understood to be the people referred to in the Constitution". When Mr Lee's parents were naturalised under the 1948 Act, they thereupon became full members of that "people", of the Australian community as a whole. 84 Pre-Independence, indigenous persons born in New Guinea were, as has been mentioned, denied access to the acquisition of Australian citizenship by naturalisation. A person born before Independence in Papua could not before then acquire Australian citizenship by naturalisation, because they acquired the status of Australian citizen at birth but, via the Migration Act, the mere fact of their birth in that Australian territory denied them a right to permanent residence on the Australian mainland (or in Tasmania). 85 The learned primary judge did take into account Mrs Lee's intentions but his reliance on intention was not absolute. His Honour also found, at [95], based on her prior acquisition of Australian citizenship, that "at Independence Day she was to be regarded as part of the Australian community and that Australia was her real home". That is exactly the effect of naturalisation. 86 The Australian community of which Mrs Lee, and to be remembered her husband, became members on their respective naturalisations was not the community of naturalised Australians or Australian citizens born outside Papua and resident in then Australian administered New Guinea. She was upon naturalisation, and remains to this day, a member of the community of the whole of the Commonwealth of Australia. She was, after naturalisation, a member of the "people" described in the Constitution. Mr Lee's father was in the same position. Only by renunciation, or some other lawful statutory process, if any, could that membership be terminated. Naturalisation is the statutory culmination of a manifestation by application of an individual's intention to choose to become a member of the Australian community. 87 The Minister submitted, and the position is, that "[a] person's intention can be relevant to the question whether they are an immigrant in so far that intention can bear upon whether or not that person has adopted a new domicile (ie a domicile of choice) or abandoned a previous domicile". Also correctly, the Minister highlighted that domicile for present purposes fell for assessment under the common law, because the Domicile Act 1982 (Cth) was not in force at Independence. 88 Naturalisation is also of relevance in relation to domicile. That is not to treat citizenship and domicile as synonymous, for they are not, although they may be coincident. For the purposes of the common law, the difference and features of domicile are as stated by Lord Westbury in the House of Lords in the Scottish appeal, Udny v Udny (1869) LR 1 ScDiv 441 (Udny v Udny), at 457 - 458: The law of England, and of almost all civilized countries, ascribes to each individual at his birth two distinct legal states or conditions; one by virtue of which he becomes the subject of some particular country, binding him by the tie of natural allegiance, and which may be called hid political status; another, by virtue of which he has ascribed to him the character of a citizen of some particular country, and as such is possessed of certain municipal rights, and subject to certain obligations, which latter character is the civil status or condition of the individual, and may be quite different from his political status. The political status may depend on different laws in different countries; whereas the civil status is governed universally by one single principle, namely, that of domicil, which is the criterion established by law for the purpose of determining civil status. For it is on this basis that the personal rights of the party, that is to say, the law which determines his majority or minority, his marriage, succession, testacy, or intestacy, must depend. International law depends on rules which, heine in great measure derived from the Roman law, are common to the jurisprudence of all civilized nations. It is a settled principle that no man shall be without a domicil, and to secure this result the law attributes to every individual as soon as he is born the domicil of his father, if the child be legitimate, and the domicil of the mother if illegitimate. This has been called the domicil of origin, and is involuntary. Other domicils, including domicil by operation of law, as on marriage, are domicils of choice. For as soon as an individual is sui juris it is competent to him to elect and assume another domicil, the continuance of which depends upon his will and act. When another domicil is put on, the domicil of origin is for that purpose relinquished, and remains in abeyance during the continuance of the domicil of choice; but as the domicil of origin is the creature of law, and independent of the will of the party, it would be inconsistent with the principles on which it is by law created and ascribed, to suppose that it is capable of being by the act of the party entirely obliterated and extinguished. It revives and exists whenever there is no other domicil, and it does not require to be regained or reconstituted animo et facto, in the manner which is necessary for the acquisition of a domicil of choice. [emphasis in original] [sic] 89 The description of domicile offered by Lord Westbury in Udny v Udny does not refer to the need in certain instances to be more territorially precise with domicile than just a particular country. In fact there was such a need in Udny v Udny and more precise conclusions were reached on the facts even though, then as now, England and Scotland were but part of a single United Kingdom. In Potter v Minahan, at 288, Griffith CJ recognised that such precision as to domicile may be necessary, even in respect of places under the same sovereignty, giving as an example, England and Scotland, although not expressly referring to Udny v Udny. An example of where the relevant inquiry is merely domicile in a country is offered by sub-paragraph (a)(ii) of the definition of "resident or resident of Australia" in s 6(1) of the Income Tax Assessment Act 1936 (Cth). 90 In this case, s 65(4)(a) of the PNG Constitution dictates that there be a temporal focus on whether, on Independence, there was a right of permanent residence in Australia. In relation to domicile, even if the territorial focus is more precise than the Commonwealth of Australia and is on Papua, Papua was, immediately prior to Independence, part of the Commonwealth of Australia. 91 Mrs Lee's birth in Hong Kong meant that her domicile of origin was in that then Crown Colony. To use Lord Westbury's terms, that "civil status" was then coincident with her then "political status" of British overseas citizen. 92 The pre-Independence Acts Interpretation Act 1901 (Cth) definition (s 17(a)) of "Australia" affected the meaning of that word for the purposes, materially, of the Migration Act. Thus, when used in a geographical sense in that Act, "Australia" did not include an external territory. However, that statutory excision did not affect the common law in relation to domicile of choice. At least by the time when her son, Mr Lee, was born, if not also earlier by the time she acquired Australian citizenship in 1973, Mrs Lee had by her will and acts relinquished her Hong Kong domicile. She had by then married an Australian citizen, settled with her husband in territory under Australian administration and started a family by giving birth to Mr Lee in a then external territory of Australia, Papua. Her intention then was to live in mainland Australia once her husband's territorial employment came to an end. She was entitled by her citizenship to live in Papua, New Guinea, mainland Australia (or Tasmania). At common law, Australia had become Mrs Lee's domicile of choice. On the evidence, she did not, by any will or act, relinquish Australia as her domicile of choice. 93 In the original jurisdiction and even on appeal, the Minister sought to make something adverse to such a conclusion by the annotation which Mrs Lee, a layperson, had made in 1974 when she completed a section headed "Visitor or temporary entrant departing" on an Outgoing Passenger Card, and indicated that her "Country of residence" was "PNG". The worth of such reliance may be tested by recalling that, in 1974, there was no such country as "PNG". On the evidence accepted by the primary judge, Mrs Lee's country of residence in 1974, under ordinary conceptions of residency (qv Harding v Federal Commissioner of Taxation (2019) 269 FCR 311) was Australia. In 1974, Papua was a territory of Australia and New Guinea was an Australian administered territory. Once again, the excision in the statutory definition of "Australia" was of no relevance in terms of ordinary conceptions of residence. 94 What follows from all of the foregoing is that, at the time of Mr Lee's birth in 1975 in pre-Independence Papua, Mrs Lee was not an "immigrant". Nor was she one on or after Independence. She was entitled, as of right, to enter mainland Australia (or Tasmania) and to reside in any of these places permanently. The learned primary judge was correct, at [96], to so conclude. She needed no grant of an entry permit under the Migration Act so to do. To the extent that any "grant" was necessary, that right was granted to her under Australian law by virtue of her status as an Australian citizen. There was no suggestion in this case that, in the circumstances, some other Australian statute prohibited or qualified her right as a citizen to enter and remain indefinitely in Australia. It is neither necessary nor desirable therefore to embark on any consideration of the legislative competence of the Parliament to enact such a statute. 95 The same is true of Mr Lee's father. As at the time of Mr Lee's birth in 1975, his father had, on the evidence, a domicile of origin in Australia, not in any foreign country. He never acquired a domicile of choice in the newly independent Papua New Guinea. No other conclusion is possible on that evidence. Mr Lee's father was, by naturalisation, part of the whole Australian community. Before Independence the father lived and worked in a territory administered by Australia. Only for occupational reasons did he remain in the newly independent Papua New Guinea until 1982. He, too, was not an "immigrant". 96 In reaching these conclusions, we have, deliberately, not sought to rely upon any then contemporary practice of Australian immigration officials. Some such evidence was tendered before the learned primary judge and referred to by him. We had the benefit of even more in relation to that practice than did the learned primary judge. There was no great harm in this and it was interesting for the absence of any settled view in Australian officialdom at or before Independence that naturalised citizens such as Mr Lee's parents could only enter mainland Australia with the benefit of an entry permit. However, administrative practice could not confer what the law denied, and the converse is also true. On close analysis, this is all that the statements in Walsh, at [29], stand for. That pre-Independence, an immigration officer in mainland Australia (or Tasmania), on the arrival of Ms Walsh and her father, and on the presentation of her father's passport with her included on it, may have permitted each of them to enter without any need for an entry permit would just be evidence of an administrative practice and would, indeed, "[fall] far short … of establishing that … she had a right of permanent residence in Australia by virtue of her father's entitlement in that respect". The way the case for Ms Walsh was presented required the Full Court to do no more than to make this observation. Not so the present case, either in the original jurisdiction or on appeal. It is not necessary in the present case to determine whether Walsh was, on its facts, correctly decided. 97 In submissions, the Minister put, in relation to Potter v Minahan, which he correctly identified as a case relied upon, at [99], by the learned primary judge, that it provided "no support for the view that a person who wants to live in Australia, but has never done so, is not an immigrant on arrival". Were the facts of a given case so confined, and in this case they are not, we would agree with the Minister's submission. 98 In Potter v Minahan, Mr Minahan had been born in the then Colony of Victoria, in all probability out of wedlock, to a British subject mother and a Chinese national father. His parents lived there together as man and wife in what we would now term a de facto relationship until he was about five years of age. At common law, given the circumstances of his birth, Mr Minahan acquired at birth the domicile of his mother. When he was about five, his father took him to China, always intending that, at some stage, he and his son would return to Victoria. Mr Minahan remained in China for about 26 years and, in that time, his father died there. Mr Minahan on adulthood had never abandoned Australia as his home. On returning to Australia, he failed what was said to be a dictation test under then Australian immigration law and it was thereby alleged that he was a prohibited immigrant amenable to deportation. The conclusion reached was that he was not an "immigrant" amenable to the then immigration law. 99 In support of that conclusion, Griffith CJ, at 288, stated: The fact that the respondent's [Mr Minahan's] actual place of residence from the age of five up to his return to Victoria was China is relevant as an important circumstance to be taken into consideration for the purpose of ascertaining whether he intended to remain there. His rights are exactly the same as if he were a person of purely British blood who had been taken by an adoptive guardian in his infancy from Australia to France or to the United States of America with the intention of bringing him back after finishing his education, and who had himself always intended to return to his birthplace as soon as he had attained that object. The fact that the desired education could only be obtained in a particular country is also important, but that also is only a circumstance to be considered in ascertaining the actual intention. 100 Obviously enough, concepts such as "purely British blood", relevant and well-understood at the time, have no present relevance. But that does not mean that the reasoning evident in this passage is irrelevant to deciding whether Mr Lee is to be regarded on Independence as an "immigrant". 101 Mr Lee was born in an external territory then part of the Commonwealth of Australia. At common law, being born to lawfully married parents, he acquired, as the Minister correctly submitted, the domicile of his father: Udny v Udny, at 457. Only if born out of wedlock would Mr Lee have acquired as his domicile of origin the domicile of his mother: Udny v Udny, at 457; see also Potter v Minahan, at 287, per Griffith CJ. He was, thus, then domiciled in Australia, not in any foreign country. Even if one is more territorially specific as to domicile, Papua, was then part of the Commonwealth of Australia and New Guinea was an Australian administered territory. Even had he as a then babe in arms been capable of voicing any choice as to domicile on Independence and, unsurprisingly, there is no such evidence, Mr Lee could not, as a then infant and as the Minister correctly pointed out in submissions, have lawfully effected by choice a change to his birth acquired domicile of origin: R v Director-General of Social Welfare (Vic); Ex parte Henry (1975) 133 CLR 369, at 377. Mr Lee has never, since attaining adulthood, chosen any different domicile than Australia. In particular, there is no evidence that he ever as an adult adopted, by choice, domicile in Papua New Guinea. 102 Immediately prior to Independence, Mr Lee was, under ordinary conceptions of residency, not resident in, and had never resided in, a foreign country. He had only ever resided in an external territory of the Commonwealth of Australia or in a territory then under Australian administration. He had only ever done so as a member of a family unit in which both mother and father were, by naturalisation, full members of the Australian community, possessed of what the PNG Constitution would on Independence call "real foreign citizenship". Immediately prior to, and at, Independence, the type of Australian citizenship which Mr Lee's parents possessed permitted them, without any let or hindrance by Australian immigration officials, and certainly without any need for an entry permit under the Migration Act, to carry into practical effect at any time a then intention to live in mainland Australia as and when a cessation of Mr Lee's then employment occasioned opportunity. To borrow from language used by Lord Chelmsford in Moorhouse v Lord (1863) 10 HLC 272, at 285, cited with approval by Barton J in Potter v Minahan, at 298 - 299, at and before Independence and until they came to the Australian mainland as a family in 1982, Mr Lee's parents had: ... a present intention of making [what became on Independence Papua New Guinea] a temporary home, though for a period indefinite and contingent. And even if such residence should continue for years, the same intention to terminate it being continually present to the mind, there is no moment of time at which it can be predicated that there has been the deliberate choice of a permanent home. For the Lee family, 1982 was a "homecoming": Potter v Minahan, at 299 per Barton J; see also O'Connor J, at 301-302. 103 As Griffith CJ highlighted in Potter v Minahan, at 289, in a passage cited with approval by Edelman J in Love, at [440], underpinning concepts of nationality and domicile is the notion of community. The Chief Justice stated: But anterior, both in order of thought and in order of time, to the concepts of nationality and domicil is another, upon which both are founded, and which is, I think, an elementary part of the concept of human society, namely, the division of human beings into communities. From this it follows that every person becomes at birth a member of the community into which he is born, and is entitled to remain in it until excluded by some competent authority. It follows also that every human being (unless outlawed) is a member of some community, and is entitled to regard the part of the earth occupied by that community as a place to which he may resort when he thinks fit. Because of the privileged, discriminatory position, relative to others in Papua and in New Guinea, afforded to them pre-Independence under the 1948 Act and related, prevailing Australian government policy, Mr Lee's parents were able, via naturalisation, to become full members of the Australian community. That full form of membership was denied to most others in those then external territories, even if born in Papua. Mr Lee, too, was born in pre-Independence Papua but unlike most born in that place in that period, the particular community into which he was born comprised full members of the Australian community. Once the text of s 65(4)(a) of the PNG Constitution and its background and the complementarity of outcome intended by the Regulations are understood, Mr Lee's is revealed as the very type of case in which there is no automatic acquisition of PNG citizenship, and thus full membership of the community of the new nation on Independence, but rather a preservation by continued Australian citizenship of his full membership of the Australian community. That is how the "competent authorities" intended that the Australian and Papua New Guinea communities would be divided on Independence. 104 Mr Lee's rights are exactly the same as any other Australian citizen child of parents having Australian citizenship who chose on Independence for occupational or other reasons to remain with their child in the newly independent Papua New Guinea, and to commence his education there so as to preserve the family unit, with the intention of bringing him back with them to mainland Australia (or Tasmania) as and when need to remain in Papua New Guinea ceased, and who had himself returned with them to Australia as soon as that need ceased. Their acquisition in 1975 or 1976 of a home in Brisbane for just that purpose is eloquent proof of that parental intention. 105 For the reasons given above, Mr Lee was always part of the Australian community. He was not at Independence, and for that matter never has been, an "immigrant". Because he was not at Independence an "immigrant", he had a right to permanent residence in Australia without any need for the grant to him of an entry permit. That was so irrespective of whether, as it came to be in October 1975, his name was included in his mother's Australian passport. All that inclusion did was to evidence a status he already had. Further, all that the absence of entry permits in his mother's Australian passport, or his own when issued, and the presence of Papua New Guinea entry permits in each, did was to evidence a correct understanding both by the Australian and Papua New Guinea immigration officials of the day as to the position under Australian law and, correspondingly and harmoniously, under PNG citizenship law as specified in the PNG Constitution. 106 These reasons may in detail, and with respect, differ from those of the learned primary judge but that does not mean that the declaration made was contrary to law. In his particular circumstances, Mr Lee was not, by the Regulations, deprived on Independence of the Australian citizenship he acquired on his birth in then Australian Papua. 107 We would therefore dismiss the appeal. 108 We would respectfully add the following. It may perhaps be that, with the lapse of time and related inter-generational turnover of personnel between when Mrs Lee was given advice by Australia's post in Port Moresby about the ongoing citizenship status of her infant son and modern times, memory has been lost in Australian officialdom, in contrast it seems with their counterparts in Papua New Guinea, of just how pregnant with meaning for Papua New Guineans, and Papuans in particular, was the expression "no … real foreign citizenship" in PNG's Constitution. There is no evidence at all that either the Minister or those advising him in his department ever acted in bad faith in advising Mr Lee that he had become a citizen of Papua New Guinea on Independence, only that they were mistaken. Even so, the mistake made in good faith has plainly had an emotive and economic impact on Mr Lee. In these circumstances, it may well be that Mr Lee's case is one which warrants consideration by the Commonwealth of the making of an Act of Grace payment to him. I certify that the preceding one hundred and eight (108) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justices Logan, Kerr and Banks-Smith.

Minister for Home Affairs v Lee

At a glance

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Before

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Judgment (21 paragraphs)

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Legislation Cited (11)

Cases Cited (25)

Cited By (5)