Lee v Minister for Home Affairs

His Honorable Justice Rangiah delivered this Judgment concerning an application for a declaration of Australian citizenship under s 4(1)(b) of the Australian Citizenship Act 2007 (Cth)–

The applicant was first issued with an Australian passport in 1979. Before that, his name was listed in his mother’s passport. The applicant has since been issued with at least four Australian passports. In 2016, when the applicant attempted to renew his passport, he was informed by the respondent’s Department that he was not in fact an Australian citizen. The applicant deposes that he had never taken any steps to apply for Australian citizenship as he believed that he was already an Australian citizen.

The applicant applied to the respondent for evidence of his Australian citizenship, but that was refused by a delegate on 24 September 2018. That applicant’s application for an internal review of that decision was rejected on 25 June 2019.

The core argument in this case as per Gibbs CJ in Pochi v Macphee [1982] HCA 60; (1982) 151 CLR 101 is that the acquisition of citizenship by an alien requires a formal action under the legislation. The Chief Justice held at 111:

It was well settled at common law that naturalization could only be achieved by Act of Parliament — even action by the Crown under the prerogative could not give an alien the status of a British subject: Blackstone, op. cit., p 374; Chitty, Prerogatives of the Crown, pp. 14–15; Holdsworth, History of English Law, vol. IX, p 76. The common law rules as to alienage were no doubt feudal in origin, but there is nothing antiquated in the notion that a person’s nationality is not changed by length of residence or by an intention permanently to remain in a country of which he is not a national. There are strong reasons why the acquisition by an alien of Australian citizenship should be marked by a formal act, and by an acknowledgment of allegiance to the sovereign of Australia. The Australian Citizenship Act validly so provides.

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Justice Rangiah having considered all the evidence in delivering the judgment said—

• I have found that at Independence Day, the applicant fell within s 65(4)(a) of the PNG Constitution as a person who had a right to permanent residence in Australia and that, therefore, s 65(1) did not apply to make him a citizen of PNG. Accordingly, reg 4 of the PNG Independence (Australian Citizenship) Regulations did not deprive him of Australian citizenship. The applicant remained an Australian citizen within the meaning of the Australian Citizenship Act 1948 (Cth).
• The definition of “Australian citizen” in s 4(1)(b) of the Australian Citizenship Act 2007 (Cth) includes a person who was an Australian citizen under the Australian Citizenship Act 1948 (Cth) immediately before the commencement day and who had not ceased to be an Australian citizen under that Act. The respondent did not plead or submit that the applicant would not fall within that definition if it were determined that reg 4 of the PNG Independence (Australian Citizenship) Regulations did not apply to him. I find that the applicant is an “Australian citizen”.
• I will make a declaration that the applicant is an “Australian citizen” within the meaning of s 4(1)(b) of the Australian Citizenship Act 2007 (Cth). 109 I will order that the respondent pay the applicant’s costs of the application.