Consideration
32 The appeal raises an issue of construction in relation to s 16(2) of the Australian Citizenship Act. The issue may be stated as whether the Tribunal erred in construing s 16(2) such that, in the first respondent's circumstances, as summarised in [2] above, the first respondent was eligible to become an Australian citizen under this section.
33 The Minister's position is that s 16(2)(a) requires that the applicant for citizenship had, at the time of their birth, a parent who was an Australian citizen as a matter of fact; the requirements for eligibility cannot be satisfied on the basis of deeming by virtue of later adoption.
34 The first respondent's primary position is that, as the Tribunal reasoned, by virtue of the adoption of the first respondent by Mr Pullumb Koka, Mr Pullumb Koka was deemed to have been the parent of the first respondent at the time of his birth. Accordingly, he had, at the time of his birth, a parent who was an Australian citizen. Alternatively, the first respondent contends that, in an adoption case, it is sufficient if the person who is the adoptive parent was an Australian citizen at the time of the birth of the applicant for citizenship. Although expressed as alternatives, the first respondent's contentions overlap to a considerable extent.
35 The applicable principles of statutory interpretation are well established and need not be referred to in detail. See Federal Commissioner of Taxation v Consolidated Media Holdings Ltd (2012) 250 CLR 503 at [39]; Certain Lloyd's Underwriters v Cross (2012) 248 CLR 378 at [25]-[26]; SZTAL v Minister for Immigration and Border Protection (2017) 262 CLR 362 at [14]; H at [50]; Acts Interpretation Act 1901 (Cth), ss 15AA, 15AB.
36 The text of s 16(1) and (2) has been set out at [13] above. The statutory context is, briefly, as follows.
37 The Australian Citizenship Act sets out a number of different ways in which a person may become an Australian citizen. Part 2, Div 1 of the Act deals with the automatic acquisition of Australian citizenship. As explained in the simplified outline in s 11A, the most common way a person becomes an Australian citizen under that Division is by being born in Australia and by having a parent who is an Australian citizen or a permanent resident at the time of birth. There are also some less common ways of becoming an Australian citizen under the Division, including citizenship by adoption (dealt with in s 13).
38 Citizenship by birth is dealt with in s 12, which provides in part:
12 Citizenship by birth
(1) A person born in Australia is an Australian citizen if and only if:
(a) a parent of the person is an Australian citizen, or a permanent resident, at the time the person is born; or
(b) the person is ordinarily resident in Australia throughout the period of 10 years beginning on the day the person is born.
It is convenient to note that the grammatical structure of s 12(1)(a) is similar to that of s 16(2)(a), in that the words "at the time the person is born" are located at the end of the provision.
39 Section 13, which deals with citizenship by adoption, is in the following terms:
13 Citizenship by adoption
A person is an Australian citizen if the person is:
(a) adopted under a law in force in a State or Territory; and
(b) adopted by a person who is an Australian citizen at the time of the adoption or by 2 persons jointly at least one of whom is an Australian citizen at that time; and
(c) present in Australia as a permanent resident at that time.
40 The other provisions relating to the automatic acquisition of Australian citizenship are: s 14 (citizenship for abandoned children); and s 15 (citizenship by incorporation of Territory).
41 Part 2, Div 2 deals with the acquisition of Australian citizenship by application. In contrast with the automatic obtaining of citizenship under Div 1, under Div 2 it is necessary to make an application to become an Australian citizen. Division 2 has four Subdivisions:
(a) Subdivision A - Citizenship by descent (ss 15A-19A);
(b) Subdivision AA - Citizenship for persons adopted in accordance with the Hague Convention on Intercountry Adoption or a bilateral arrangement (ss 19B-19F);
(c) Subdivision B - Citizenship by conferral (ss 19G-28); and
(d) Subdivision C - Resuming citizenship (ss 28A-32).
42 Section 15A contains a simplified outline of Subdivision A. It states in part that a person may be eligible to become an Australian citizen under the Subdivision in two situations. The first, which is covered by s 16(2), is summarised in the following way: "you were born outside Australia on or after 26 January 1949 and a parent of yours was an Australian citizen at the time of your birth". The second situation relates to persons born outside of Australia or New Guinea before 26 January 1949 and can be put to one side for present purposes. Section 17 deals with the Minister's decision in relation to an application under s 16:
17 Minister's decision
(1) If a person makes an application under section 16, the Minister must, by writing, approve or refuse to approve the person becoming an Australian citizen.
(1A) The Minister must not approve the person becoming an Australian citizen unless the person is eligible to become an Australian citizen under subsection 16(2) or (3).
(2) Subject to this section, the Minister must approve the person becoming an Australian citizen if the person is eligible to become an Australian citizen under subsection 16(2) or (3).
Identity
(3) The Minister must not approve the person becoming an Australian citizen unless the Minister is satisfied of the identity of the person.
Note: Division 5 contains the identity provisions.
National security
(4) If the person is not covered by subsection (4B), the Minister must not approve the person becoming an Australian citizen at a time when an adverse security assessment, or a qualified security assessment, in respect of the person is in force under the Australian Security Intelligence Organisation Act 1979 that the person is directly or indirectly a risk to security (within the meaning of section 4 of that Act).
(4A) If the person is covered by subsection (4B), the Minister must not approve the person becoming an Australian citizen if the person has been convicted of a national security offence.
(4B) A person is covered by this subsection if:
(a) at the time the person made the application under section 16, the person:
(i) is not a national of any country; and
(ii) is not a citizen of any country; and
(b) at the time of the person's birth, the person had a parent who was an Australian citizen.
Cessation of citizenship
(5) If the person has at any time ceased to be an Australian citizen, the Minister must not approve the person becoming an Australian citizen during the period of 12 months starting on the day on which the person ceased, or last ceased, to be an Australian citizen.
(Emphasis added.)
43 Section 18 deals with registration in circumstances where the Minister approves the person becoming an Australian citizen. Section 19 provides that a person becomes an Australian citizen under the Subdivision on the day on which the Minister approves the person becoming an Australian citizen. Section 19A provides:
19A When a person does not become a citizen despite the Minister's approval
Despite section 19, a person does not become an Australian citizen under this Subdivision, even if the Minister approves the person becoming an Australian citizen, unless:
(a) if the person was born on or after 26 January 1949 - a parent of the person was an Australian citizen at the time of the person's birth; or
(b) if the person was born before 26 January 1949 - a parent of the person became an Australian citizen on 26 January 1949.
44 Subdivision AA deals with citizenship for persons adopted in accordance with the Hague Convention on Intercountry Adoption or a bilateral arrangement. In the present case, the first respondent did not seek to become an Australian citizen under the provisions of this Subdivision. While it is not necessary to refer to the provisions of this Subdivision in any detail, these provisions are relevant to the extent that they (together with s 13) demonstrate that the Australian Citizenship Act contains provisions that are specifically directed to the acquisition of citizenship in circumstances of adoption.
45 Subdivision B deals with citizenship by conferral. As explained in the simplified outline in s 19G, a person may be eligible to become an Australian citizen under the Subdivision in seven situations. These situations are covered in s 21. The balance of the Subdivision elaborates on certain concepts and contains procedural provisions.
46 Subdivision C is concerned with resuming citizenship. Under this Subdivision, as explained in the simplified outline in s 28A, a person may be eligible to become an Australian citizen under the Subdivision if the person ceased to be an Australian citizen under the Act or its predecessor.
47 Although the word "child" is not used in s 16 - the provision of central relevance - I note for completeness that the word is defined in s 3 as follows:
child: without limiting who is a child of a person for the purposes of this Act, each of the following is the child of a person:
(a) an adopted child, stepchild or exnuptial child of the person;
(b) someone who is a child of the person within the meaning of the Family Law Act 1975.
48 I also note that the concept of a "responsible parent" is defined in s 6.
49 Having set out the statutory context, I now turn to consider, more directly, the issue of construction of s 16. As discussed by the Full Court in H at [69], the construction of the provision might have been plainer if the phrase "at the time of birth" had been placed first, rather than last, in s 16(2)(a). As the provision is drafted, it is grammatically possible to interpret "at the time of birth" as applying only to the phrase "was an Australian citizen" and not to "a parent of the person".
50 It is common ground in the present case that the observations of the Full Court in H at [67]-[70] are not strictly binding, on the basis that they did not form part of the essential reasoning on the issue to be determined in that case. It is unnecessary to determine whether or not that common position is correct. Assuming that the observations are not strictly binding, they are, in my respectful opinion, persuasive. For the reasons given by the Full Court, when regard is had to the legislative history and statutory context, the clearly better view is that s 16(2)(a) requires that an applicant for citizenship had, at the time of their birth, a parent who was an Australian citizen. As the Full Court stated at [70], the legislative history of s 16 shows that eligibility for citizenship under the predecessor provisions has always required a citizen parent at the time of birth. As the Full Court noted, there is no indication in the extrinsic materials that Parliament intended to change that basic test. Further, as the Full Court noted, that construction is consistent with s 12(1), according to which a person born in Australia is an Australian citizen in certain circumstances, including that "a parent … is an Australian citizen … at the time the person is born". Other provisions support the construction adopted by the Full Court in H; for example, ss 17(4)-(4B), which address the national security exceptions to the Minister's non-discretionary duty to approve the application of a person eligible for citizenship under s 16. There would seem to be no logical reason to limit s 17(4B) to parents as at the time of birth if s 16(2) were not also so limited. As the Full Court noted, similar language appears in the context of the national security exceptions to other routes to citizenship: see ss 19D(7) and 24(4B). For the reasons given by the Full Court in H, outlined above, I consider the construction of s 16(2) adopted by the Full Court at [67]-[70] to be correct.
51 Accepting that the words "at the time of birth" qualify both the status of being a parent and the parent's citizenship in s 16(2), the ordinary meaning of the words used in the provision is that the eligibility requirements need to be established as a matter of fact, as distinct from deeming on the basis of later adoption. In other words, the applicant for citizenship must have had, at the time of their birth, a parent with Australian citizenship as a matter of fact. There is no indication in the text of the provision or the statutory context or purpose that these requirements can be satisfied on a deemed basis by virtue of principles relating to the law of adoption. The statutory context includes, in s 13 and Pt 2, Div 2, Subdiv AA, specific provisions relating to the acquisition of Australian citizenship in circumstances of adoption. While the presence of those provisions should not lead to a narrower construction of s 16(2), their presence makes clear that s 16(2) is not directed at an adoption situation.
52 The statutory context also includes the definitions of "child" and "responsible parent", but these do not appear to shed any light on the issue.
53 The first respondent did not point to any textual or contextual considerations that suggest that the eligibility requirements in s 16(2) can be satisfied on a deemed basis by virtue of principles relating to the law of adoption. In oral submissions, counsel for the first respondent submitted that the "whole purpose" of adoption is for the adoptive parent to "step into the shoes" of the biological parent. The Tribunal referred to and evidently relied on general principles relating to adoption law, drawn from the Laws of Australia (quoted by the Tribunal at [47]). However, with respect, general principles of adoption law are not to the point. The question for present purposes concerns the construction of s 16(2) and whether the eligibility requirements in the provision can be satisfied on a deemed basis. This requires consideration of the text, context and purpose of s 16, rather than general principles of the law of adoption.
54 In my view, in light of the above, there is no basis to depart from the ordinary meaning of the words used in s 16(2), which is that the eligibility requirements of the provision need to be satisfied as a matter of fact, as distinct from deeming based on later adoption. Neither the context nor the purpose of the provision suggest that the requirements can be satisfied on a deemed basis. Accordingly, in my view, it is necessary for an applicant for citizenship under s 16 to show that they had, at the time of their birth, a parent with Australian citizenship as a matter of fact (as distinct from deeming based on later adoption).
55 I note for completeness that this view accords with an observation made by the Full Court in H at [122]. Having reiterated the view it took at [67]-[70] as to the construction of s 16(2), the Full Court indicated, by way of example, that "even infant adoptees would be unable to satisfy this requirement" (this is, the requirement that they had, at the time of birth, a citizen parent). However, the Full Court was not presented with any argument along the lines presented in the present case, and was not dealing with a case involving adoption. I therefore do not rely on that observation by the Full Court.
56 The notice of contention does not raise any separate or additional issue. By the notice of contention, the first respondent contends that, in circumstances of adoption, s 16(2)(a) requires that the person who is the adoptive parent was an Australian citizen at the time of the birth of the applicant for citizenship. In other words, it is contended that, in an adoption situation, the adoptive parent need not have been the parent at the time of birth. For the reasons given above, I do not accept that construction.
57 For these reasons, in my view, the Tribunal erred in its construction of s 16(2).