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Administrative Appeals Tribunal of Australia |
Last Updated: 30 April 2003
ADMINISTRATIVE APPEALS TRIBUNAL )
GENERAL ADMINISTRATIVE DIVISION |
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Re |
Kadek FINLAYSON |
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And |
Minister for Foreign Affairs and Trade |
Tribunal |
P. J. Lindsay, Senior Member |
Date 24 April 2003
Decision
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The decision under review is affirmed. |
(sgd) P. J. Lindsay
CATCHWORDS
Passport - refusal to issue passport - applicant for passport married to Australian citizen but not born in Australia or naturalized - whether applicant a British subject - whether applicant a citizen - decision affirmed.
Administrative Appeals Tribunal Act 1975 (Cth) s 37
Passports Act 1938 (Cth) ss.5, 7, 11A
Constitution, s.51(xix)
Statute of Westminster 1931 (Imp)
Australian Citizenship Act 1948 (Cth) ss.10, 10A, 10C, 13
British Nationality and Status of Aliens Act 1914 (Imp) Chapter 17, s 10
Royal Style and Titles Act 1973 (Cth)
Houssein v Under Secretary of the Department of Industrial relations and Technology (1982) 38 ALR 577
Eastman v Commissioner for Superannuation (1987) 74 ALR 221
Chu Kim Lim v Minister for Immigration, Local Government and Ethnic Affairs (1992) 176 CLR 1
Nolan v Minister for Immigration and Ethnic Affairs (1988) 165 CLR 178
Re Patterson; ex parte Taylor [2001] HCA 51
Re Minister for Immigration and Multicultural Affairs; ex parte Te [2002] HCA 48
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P. J. Lindsay, Senior Member |
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1. This is an application to review a decision made on 18 April 2002 under s.7 of the Passports Act 1938 (`the Act') by an authorized officer who refused to issue an Australian passport to Mrs Kadek Finlayson, the applicant. The authorized officer had reviewed, and affirmed, an earlier decision made on 23 January 2002. The application is made to the Tribunal under s.11A of the Act.
2. At the hearing the applicant was represented by her husband Mr Greg Finlayson and Mr B. Dube of the Australian Government Solicitor appeared for the respondent. Neither party called witnesses. The Tribunal had before it the documents lodged pursuant to s.37 Administrative Appeals Tribunal Act 1975 (T documents).
BACKGROUND
3. The applicant was born in Indonesia on 4 September 1979 (T3). She is married to Mr Greg Finlayson who informed the Tribunal that his wife currently spends about 4 to 6 months a year in Australia and the remainder in Indonesia.
4. On 21 January 2002, the applicant lodged an application for an Australian passport (T3). The application form requires proof of Australian citizenship and details of a previous Australian passport, an Australian birth certificate or an Australian citizenship certificate. The applicant did not provide any of these details. Further, in a signed statement attached to her application, the applicant stated:
I wish to apply for an Australian passport on the grounds outlined in a two page submission annexed to an application form of today's date filed at Sydney.
I do not have, nor am I eligible for the issue of, a citizenship certificate. I do not intend to apply for Australian citizenship nor am I a permanent resident of Australia. (T3 p10)
5. On 23 January 2002, an officer of the Department of Foreign Affairs and Trade (the Department) wrote to the applicant to advise that her application had been withdrawn because she had not produced evidence of her Australian citizenship. The application fee was refunded (T4). The applicant wrote to the officer on 29 January 2002 requesting that her passport application not be withdrawn (T6). In this letter she acknowledged she was not entitled to a certificate of citizenship but claimed, nevertheless, that she was a citizen within the meaning of the Act or alternatively, was eligible for the issue of a passport by the Minister for Foreign Affairs and Trade in the exercise of a prerogative power. Finally, she referred to the provisions of an international convention on the status of stateless persons and the obligation of a State to issue travel documents to such a person.
6. The applicant wrote to the Minister on 1 February 2002 (T7) to request his review of the departmental officer's decision of 23 January 2002. In support of her request, she put forward two arguments. First, she asserted that, even though she is not a citizen under the Australian Citizenship Act 1948 (`the Citizenship Act'), as a person who is a British subject and who owes allegiance to Australia, she is entitled to its protection. The applicant's letter referred to provisions of Imperial legislation that she said resulted in her being a subject of the Queen in right of Australia and, therefore, a citizen and entitled to the issue of a passport. She also noted the Minister's prerogative power to issue a passport.
7. On 18 February 2002, a departmental officer replied on behalf of the Minister to confirm the earlier advice of 23 January 2002, namely that the applicant was required to produce evidence of Australian citizenship before a passport could be issued (T8). By letter dated 4 March 2002, Mr Greg Finlayson requested written reasons for the decision. Not being satisfied with the response from the Department dated 6 March 2002, Mr Finlayson wrote to the Minister on 20 March 2002 requesting his review of the decision of 23 January 2002. The reply dated 18 April 2002 from an authorized officer, affirmed the decision not to issue the applicant with an Australian passport (T15). On 13 May 2002 the applicant applied to the Tribunal for a review of that decision.
LEGISLATION
8. The relevant provisions of the Act are set out below:
Section 7 Issue of passports
(1) Subject to the regulations, the Minister or an officer authorized in that behalf by the Minister may issue Australian passports to Australian citizens.
(2) Australian passports shall be issued in the name of the Governor-General and shall be in such forms as are approved by the Minister.
(3) The exercise by an authorized officer of a power under this section is subject to any directions of the Minister and to sections 7A, 7B, 7C, 7D and 7E.
(4) The Minister is not entitled to refuse, or to direct an authorized officer to refuse, to issue an Australian passport except:
(a) in circumstances in which, under section 7A, 7B, 7C, or 7D, an authorized officer is prohibited from issuing a passport unless directed otherwise by the Minister or by a person specified for the purpose in the relevant section; or
(b) in circumstances where the Minister may notify an authorized officer under subsection 7E(1) that an Australian passport is not to be issued.
(5) Where the Minister or an authorized officer makes a decision under subsection (1) refusing to issue a passport, the Minister or an authorized officer shall cause to be served, either personally or by post, on the applicant for the passport a notice in writing setting out that decision and the reasons for that decision.
9. `Australian citizen' is defined in s.5 of the Act as follows:
Australian citizen means a person who is an Australian citizen within the meaning of the Australian Citizenship Act 1948-1973.
Part III of the Citizenship Act deals with Australian citizenship, Division 1 of the Part being headed `Citizenship by birth, adoption or descent' and Division 2 concerns the grant of Australian citizenship.
SUBMISSIONS FOR THE APPLICANT
10. At the hearing, Mr Finlayson informed the Tribunal that the applicant was not proceeding with her argument that there is a residual prerogative power of the Minister or the Governor-General as representative of the Queen, to issue a passport. Additionally, the applicant was not arguing for entitlement to a passport or travel documents on the basis of being a stateless person. Her only argument was that she was a citizen within the meaning of the Citizenship Act and therefore had a right to a passport.
11. By reason of his birth in Australia to parents who were born in Australia, Mr Finlayson claimed to be a British subject. He submitted that, by virtue of the applicant's marriage to him, a British subject, she could establish that she was an Australian citizen. The argument began with s.10 of the British Nationality and Status of Aliens Act 1914 (Imp) (`the 1914 British Nationality Act'). Section 10 stated:
10. The wife of a British subject shall be deemed to be a British subject, and the wife of an alien shall be deemed to be an alien: Provided that where a man ceases during the continuance of his marriage to be a British subject it shall be lawful for his wife to make a declaration that she desires to retain British nationality, and thereupon she shall be deemed to remain a British subject.
Although he acknowledged that the United Kingdom repealed the 1914 British Nationality Act on enactment of the British Nationality Act 1948 (UK), it was submitted that the 1914 British Nationality Act was still good and current law in Australia. Mr Finlayson explained that, since Australia had not requested or consented to the United Kingdom legislation that effected the repeal, s.4 of the Statute of Westminster 1931 (Imp) provided that the repeal did not extend to Australia. Accordingly, Mr Finlayson submitted the applicant was deemed to be a British subject.
12. From this point Mr Finlayson submitted that, as a result of what he described as the evolution of Australia's constitutional position with respect to the former Imperial crown, the applicant was a subject of the Queen in right of Australia. She was a person owing allegiance to Australia and entitled to its protection, and thus not an alien. After pointing out that that the Citizenship Act does not contain a definition of `citizen', Mr Finlayson submitted that the applicant was a citizen in accordance with the general meaning of the term and he noted the definition in the Macquarie Dictionary, 2nd edition, "citizen. 1. a member, native or naturalised, of a state or nation (as distinguished from alien); 2. a person owing allegiance to a government and entitled to its protection." He also referred to an American jurisprudential work (3 Am Jur 2d) which contains a summary of the law of citizenship in that country, which he maintained had equivalent application in Australia: "A `citizen', in the popular and appropriate sense of the term, is one who, by birth, naturalization, or otherwise, is a member of an independent political society, called a state, kingdom, or empire, and as such subject to its laws and entitled to its protection in all his rights incident to that relation." In Mr Finlayson's submission, the applicant therefore was a citizen. He cited Re Patterson; ex parte Taylor [2001] HCA 51 in support of this proposition. That case held that a British subject who had migrated to Australia but had not gone through the formal process of naturalization in Australia, was to be given protection from deportation as he was not an alien.
13. Mr Finlayson submitted that the Citizenship Act was an Act with respect to naturalization and aliens under s.51(xix) of the Constitution and consequently the Act did not affect persons who were already citizens, such as the applicant. In support of his argument he relied on the Latin maxim `expressio unius est exclusio alterius' (an express reference to one indicates that other matters are excluded) and cited Houssein v Under Secretary of the Department of Industrial Relations and Technology (NSW) (1982) 148 CLR 88 and Eastman v Commissioner for Superannuation (1987) 74 ALR 221.
14. Mr Finlayson's statement of contentions disputed that Lim v Minister for Immigration, Local Government and Ethnic Affairs (1992) 176 CLR 1 supported the respondent's submission that citizenship was a wholly statutory concept. Moreover he argued that Lim re-affirmed what he said was established in Nolan v Minister for Immigration and Ethnic Affairs (1988) 165 CLR 178, namely that the concept of non-citizen is equivalent to alien, with the corollary of that proposition being that non-aliens, such as the applicant, are citizens.
SUBMISSIONS FOR THE RESPONDENT
15. Mr Dube submitted that unless the applicant is an Australian citizen for the purposes of the Citizenship Act, she is not entitled to the issue of a passport. He stated that citizenship is a status exclusively conferred by statute, the Citizenship Act, and there is no general law concept of Australian citizenship. For this point he relied on the following dictum of Gaudron J in Lim:
Citizenship, so far as this country is concerned, is a concept which is entirely statutory, originating as recently as 1948 with the enactment of what was then styled the Nationality and Citizenship Act 1948. (at 54)
In his submission there is no authority to support the applicant's proposition that Australian citizenship can be obtained other than pursuant to the Citizenship Act.
16. As to the applicant's submission that her citizenship is founded upon her being a British subject under the 1914 British Nationality Act, Mr Dube contended that the repeal of that Act by legislation of the United Kingdom Parliament effected its repeal in Australia. If that were not the case, he reasoned that the enactment of the Citizenship Act, which was repugnant to the 1914 British Nationality Act, was valid due to the effect of s.2 of the Statute of Westminster 1931. The Citizenship Act, therefore, has exclusive operation in respect to Australian citizenship and displaces the Imperial legislation in Australia. However, Mr Dube submitted that, if the applicant were still to be regarded as a British subject, her argument that, as a member of a class of British subjects in Australia who are subjects of the Queen of Australia, she is a non-alien, and thus a citizen, was not supported by Re Patterson.. He noted that the transformation of British subjects in Australia to become subjects of the Queen of Australia, was qualified by the requirement that the British subjects were required to have been living in Australia at the commencement of the Royal Style and Titles Act 1973 (Cth) (per McHugh J at [95]) or alternatively before the commencement of the amendments to the Citizenship Act in 1987 (per Gaudron J at [53] to [55]), per Kirby J at [307] to [308])
17. The Citizenship Act confers rights of citizenship by birth (s.10), adoption (s.10A), and descent (s.10C), being provisions contained in Division 1, or by the grant of Australian citizenship (s.13), located in Division 2. In response to Mr Finlayson's submissions regarding the scope of the Citizenship Act, Mr Dube stated that the Citizenship Act applies both to persons who are already citizens (through the operation of Division 1) and persons who require a grant of Australian citizenship under Division 2. In addition, Mr Dube referred the Tribunal to the preamble of the Citizenship Act which states:
RECOGNISING THAT:--
Australian citizenship represents 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; and
Persons granted Australian citizenship enjoy these rights and undertake to accept these obligations by pledging loyalty to Australia and its people, and by sharing their democratic beliefs, and by respecting their rights and liberties, and by upholding and obeying the laws of Australia:
He submitted that the preamble makes it clear that the Citizenship Act is not an Act limited to naturalisation but it is an Act applying to all Australian citizens.
18. Finally, Mr Dube submitted that Mr Finlayson is not a British subject but an Australian citizen by birth in accordance with Division 1 of the Citizenship Act. Therefore, Mr Finlayson would fall within the scope of the Citizenship Act which does not make provision for spouses automatically to become Australian citizens upon marriage to an Australian citizen.
FINDINGS AND CONSIDERATION
19. The respondent conceded that the applicant was lawfully married to Mr Finlayson and did not dispute that he is an Australian citizen, having been born in Australia to Australian citizens. The Tribunal makes findings of fact accordingly.
20. The Tribunal finds that the applicant was born in Indonesia and is satisfied that her parents were not Australian citizens. She has not been naturalized.
21. The Tribunal accepts that the United Kingdom Parliament has repealed the 1914 British Nationality Act by the enactment of later legislation. For the reasons given below, it is not material to the Tribunal's decision whether that Act has been repealed in Australia pro tanto by the passing of the Citizenship Act. Even if Mr Finlayson were considered to be a British subject by virtue of the 1914 British Nationality Act, a proposition that the Tribunal will assume without finding, the Tribunal nevertheless finds that the applicant is not a natural-born subject, a status that Kirby J identified as being relevant in differentiating the prosecutor in Re Minister for Immigration and Multicultural Affairs; ex parte Te [2002] HCA 48 from Mr Taylor in Re Patterson.. There are other facts that differentiate the applicant from Mr Taylor. Although there was no evidence concerning the date of the applicant's marriage, the Tribunal is prepared to accept that, having regard to the fact that she was born in September 1974, she was not in Australia as the wife of a British subject prior to either the commencement of the Royal Style and Titles Act 1973 (Cth) or the commencement of the amendments to the Citizenship Act in 1987. Noting that her passport application form stated that her residential address was in Indonesia and Mr Finlayson's submission that his wife spends more time in Indonesia each year than in Australia, the Tribunal is not satisfied on the evidence that the applicant is ordinarily resident in Australia. Certainly, she does not have the degree of connection with Australia that is equivalent to Mr Taylor's thirty years of residing in Australia. Similarly, on the evidence before it, the Tribunal is unable to be satisfied that the applicant has been absorbed into the Australian community. Kirby J also stressed that Mr Taylor, as a member of the body politic, was qualified to vote in Federal and State elections, referenda to alter the Constitution, and was liable for jury service, Te's case (at [193]-[194]). These findings, therefore, set apart the applicant's circumstances from those of Mr Taylor and, consequently, the decision in Re Patterson can be distinguished. The applicant's argument that she is a citizen because she is a member of a class of persons that could be described as non-alien British subjects in Australia is rejected.
22. The Tribunal affirms the decision under review for another reason. The Tribunal does not accept the applicant's submission that Lim and Nolan are authority for the proposition that non-aliens must be considered to be Australian citizens. The majority in Re Patterson found that, in relation to proceedings to detain and deport Mr Taylor, the relevant legislation did not apply to a non-alien British subject. The Tribunal accepts the respondent's submission that Re Patterson did not decide that such persons were citizens. More recently, the High Court in Te has affirmed the principle that Australian citizenship is a statutory concept:
The Australian community, through Parliament, decides who will be admitted to what the Australian Citizenship Act now describes as the formal membership of the community represented by citizenship, "a common bond, involving reciprocal rights and obligations", and the terms and conditions on which such admission will take place.(per Gleeson CJ at [26])
Citizenship is a statutory, not a constitutional concept. (per Gaudron J at [53])
... an alien born person may acquire membership of the Australian body politic and, thereby, cease to be an alien only in the circumstances and in accordance with the procedures specified by the Australian Citizenship Act 1948 (Cth). (per Gaudron J at [69])
Since 1948, the Australian Citizenship Act 1948 (Cth) has defined the manner in which aliens entering Australia may become non-aliens. Re Patterson holds that certain British subjects who were not aliens when they arrived in Australia do not fall within that definition. ... Those who enter a common law country as aliens can only acquire citizenship and the status of non-aliens by legislation (per McHugh J at [90])
... displacement [of any common law principle] has occurred by the specific provision made by the Citizenship Act for the granting of Australian citizenship to persons not already Australian citizens. (per Gummow J at [119]).
23. The Tribunal thus accepts the respondent's submission that the only way in which the applicant may be eligible to be issued with an Australian passport is in accordance with the Act. As s.7 of the Act provides for the issue of a passport only to Australian citizens and as s.5 of the Act provides that only a person who is an "Australian citizen" within the meaning of that term in the Citizenship Act is an Australian citizen for the purposes of the Act, the application must fail because the applicant is not an Australian citizen by birth, adoption, descent or the grant of an Australian citizenship certificate. Accordingly, she is not entitled to the issue of an Australian passport.
DECISION
24. The decision under review is affirmed.
I certify that the 24 preceding paragraphs are a true copy of the reasons for the decision herein of P.J. Lindsay, Senior Member:
Signed: .......................................................................................
Associate
Date of Hearing 24 September 2002
Date of Decision 24 April 2003
Applicant's representative Mr Greg Finlayson
Solicitor for the Respondent Australian Government Solicitor
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