Koroitamana v Commonwealth of Australia [2005] FCAFC 61 (15 April 2005)

Last Updated: 20 April 2005

FEDERAL COURT OF AUSTRALIA

Koroitamana v Commonwealth of Australia [2005] FCAFC 61

CONSTITUTIONAL LAW – s. 51 (xix) – applicant children born in Australia – whether falling outside the aliens power.

Chu Kheng Lim v Minister for Immigration, Local Government and Ethnic Affairs [1992] HCA 64; (1992) 176 CLR 1 referred to and applied
Minister for Immigration and Multicultural Affairs; Ex parte Te [2002] HCA 48; (2002) 212 CLR 162 applied
Nolan v Minister for Immigration and Ethnic Affairs [1988] HCA 45; (1988) 165 CLR 178 referred to
Pochi v Macphee [1982] HCA 60; (1982) 151 CLR 101 referred to
Singh v The Commonwealth [2004] HCA 43; (2004) 209 ALR 355 applied


























LOMANI JOEY KOROITAMANA AND ANOR v COMMONWEALTH OF AUSTRALIA AND ANOR
NSD 1448 of 2004

BLACK CJ, CONTI J & ALLSOP J
15 APRIL 2005
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 1448 of 2004

A CASE STATED BY A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN:	LOMANI JOEY KOROITAMANA An infant by her next friend Sereana Naikelekele FIRST APPLICANT MEREANI DIVOLIVOLI An infant by her next friend Sereana Naikelekele SECOND APPLICANT
AND:	COMMONWEALTH OF AUSTRALIA FIRST RESPONDENT MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS SECOND RESPONDENT
JUDGES:	BLACK CJ, CONTI J & ALLSOP J
DATE OF ORDER:	15 APRIL 2005
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1. The following questions reserved by the case stated by Emmett J on 11 February 2005 be answered as follows:

(Q1) Are the applicants "aliens" within the meaning of s.51 (xix) of the Constitution?

(A1) Yes.

(Q2) If the answer to (1) is "No", is s. 198 of the Migration Act 1958 (Cth) capable of valid application to the applicants?

(A2) Not applicable.

(Q3) If the answer to (1) is "No", are ss.189 and 196 of the Migration Act 1958 (Cth) capable of valid application to the applicants?

(A3) Not applicable.

2. Within 7 days, the parties file and serve any written submissions on costs.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 1448 of 2004

A CASE STATED BY A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN:	LOMANI JOEY KOROITAMANA An infant by her next friend Sereana Naikelekele FIRST APPLICANT MEREANI DIVOLIVOLI An infant by her next friend Sereana Naikelekele SECOND APPLICANT
AND:	COMMONWEALTH OF AUSTRALIA FIRST RESPONDENT MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS SECOND RESPONDENT

JUDGES:	BLACK CJ, CONTI J & ALLSOP J
DATE:	15 APRIL 2005
PLACE:	SYDNEY

REASONS FOR JUDGMENT

THE COURT:

1 The applicants are two young children who were born in Australia in 1998 and 2000. Their parents are citizens of Fiji. The applicants are not citizens of Fiji, but as children born outside Fiji, of Fijian parents, they have a right to apply for Fijian citizenship. They have not done so. Neither applicant is an Australian citizen within the meaning of the Australian Citizenship Act 1948 (Cth). Neither applicant holds a current visa under the Migration Act 1958 (Cth). The applicants have three siblings, who are Australian citizens. It is common ground that this is so because two have resided in Australia for ten years (see s 10(2)(b) of the Australian Citizenship Act) and one is an adopted child, otherwise qualifying as an Australian citizen.

2 By a case stated by a Judge of this Court the following three questions were reserved for the consideration of a Full Court:

1.	Are the applicants "aliens" within the meaning of s. 51(xix) of the Constitution?
2.	If the answer to (1) is "No", is s. 198 of the Migration Act 1958 (Cth) capable of valid application to the applicants?
3.	If the answer to (1) is "No ", are ss. 189 and 196 of the Migration Act 1958 (Cth) capable of valid application to the applicants?

3 In Chu Kheng Lim v Minister for Immigration, Local Government and Ethnic Affairs [1992] HCA 64; (1992) 176 CLR 1 at 23 Brennan J, Deane J and Dawson J said:

In Nolan v Minister for Immigration and Ethnic Affairs,... it was recognized that the effect of Australia's emergence as a fully independent sovereign nation with its own distinct citizenship was that the word "alien" in s 51(xix) of the Constitution had become synonymous with "non-citizen". ...

...

The legislative power conferred by s 51(xix) with respect to "aliens" is expressed in unqualified terms. It prima facie encompasses the enactment of a law with respect to non-citizens generally. ...

4 Subject to the qualification referred to in Pochi v Macphee [1982] HCA 60; (1982) 151 CLR 101 at 109 and Singh v The Commonwealth [2004] HCA 43; (2004) 209 ALR 355 at 357 [4] (per Gleeson CJ), and 402 [153] (per Gummow J, Hayne J and Heydon J) Parliament has the power to determine the legal basis for, and create and define the concept of, Australian citizenship: Singh at 357 [4] (per Gleeson CJ). That power cannot, however, be at large and the restriction is to be found by identifying, by the appropriate method of constitutional interpretation, what class or classes of people could not answer the description of aliens within the meaning of s 51(xix) of the Constitution.

5 The applicants’ argument here is that birth in Australia in circumstances where they (as opposed to their parents) did not owe allegiance to a foreign power necessarily places them outside the categories of persons who could answer the description of aliens. This is so, it was said, because birth in Australia, absent any allegiance to a foreign power, created in law allegiance to Australia or to the Crown in right of Australia.

6 The reasons of Gummow J, Hayne J and Heydon J in their joint judgment in Singh concerned circumstances in which a person born in Australia owed, by reason of the law of India, allegiance from birth to India, a foreign power. Their Honours concentrated on the central notion, relevant in that case, of owing allegiance to another power and found that, as a result of that allegiance, the plaintiff was an alien for the purposes of s 51(xix) of the Constitution. We do not, however, see anything in the joint judgment in Singh, when read with the judgment of the Chief Justice, as contrary to the proposition put forward by the Solicitor General in the present case that a stateless person, that is, someone owing no allegiance to any power, is an alien. This is so simply because, like a citizen of a foreign country, a stateless person lacks any constitutionally significant relationship with Australia (see Singh at [205], citing Nolan v Minister for Immigration and Ethnic Affairs [1988] HCA 45; (1988) 165 CLR 178 at 183).

7 The applicants do not contest the proposition that a stateless person is an alien. They say, however, that they are not stateless, because by and at birth in Australia, and in the absence of any foreign law providing for allegiance to a foreign power, they owed allegiance to Australia or the Crown in the right of Australia. Though Parliament has not called them citizens, because of that notion of allegiance, they cannot be described as aliens.

8 The difficulty with this argument is what we take from the joint judgment of Gummow J, Hayne J and Heydon J in Singh, read with the judgment of the Chief Justice in that case. In the joint judgment, their Honours make it clear in their historical analysis of the concepts of alienage and allegiance in the United Kingdom, Europe and the United States, that at Federation, there was no underlying bedrock relationship linking birth in Australia to non-alien status (in contrast see the judgments of McHugh J and Callinan J). At Federation, the word "aliens" did not have a fixed legal meaning by reference to the common law, and hence by 1901 it could not be said that the common law was so clear as to lead to the conclusion that birth in Australia gave rise necessarily to the existence of allegiance, in circumstances where there was no allegiance to a foreign power: Singh at [157], [177], [190] and [199]. In his separate judgment the Chief Justice observed that given the legal context in which the Constitution was written, a context which involved changing and developing policies about nationality, allegiance and alienage and which were seen as appropriate for parliamentary resolution, it was plain that it was within the head of power conferred by s 51 (xix) for the Parliament to decide whether a person such as the plaintiff in that case should be treated as an alien. The same context points to the same answer in the present case. It is not possible to conclude that persons such as the applicants are outside the concept of aliens in respect of whom s 51 (xix) confers power to make laws.

9 This is enough to found the conclusion that the Parliament has authority to legislate under the otherwise broad and important power given by s 51(xix) (see Minister for Immigration and Multicultural Affairs; Ex parte Te [2002] HCA 48; (2002) 212 CLR 162 at 171 [24] per Gleeson CJ) to provide for the non-citizen and alien status of the applicants. A significant implication of this conclusion is that the operation of the constitutional limits of such a central sovereign power as s 51(xix) is not made to depend on the municipal or constitutional law of a foreign state dealing with citizenship of that foreign state. It is unnecessary to speculate about the circumstances in which a person’s connection with Australia that would lead to the conclusion that the concept of "alien", properly understood according to applicable principles of constitutional interpretation, could not extend to him or her.

10 For these reasons we would answer the first question ‘yes’.

11 The following two questions, therefore, do not arise.

I certify that the preceding eleven (11) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Chief Justice Black, Justice Conti and Justice Allsop.

Associate:

Dated: 15 April 2005

Counsel for the Applicants:	Mr J Basten QC with Mr S Prince
Solicitor for the Applicants:	Ms M Byers
Counsel for the Respondents:	Mr DMJ Bennett QC with Ms M Perry QC
Solicitor for the Respondents:	Australian Government Solicitor
Date of Hearing:	22 February 2005
Date of Judgment:	15 April 2005