Federal Court. Was the Applicant a non-alien who was not subject to the Migration Act 1958 (Cth), with the result that his detention under s 189(1) of the Act was unlawful, because: he was "accepted by the Australian body politic and community as a citizen ...; the fact that he renounced that citizenship in 1995 does not change his non-alien status"; or "he has the essential characteristics of a non-alien, based on a holistic assessment of his circumstances"?
The Federal Court (FCA) described the matter as follows:
1 The applicant was born in the United Kingdom. He arrived in Australia in 1969, and became an Australian citizen by conferral in 1988. In 1995, the applicant renounced his Australian citizenship. It is common ground that he is not presently an Australian citizen.
2 In 2013, the applicant was granted a resident return visa. The applicant subsequently lived in Australia. In 2018, he was found guilty of various offences and sentenced to 2 years and 11 months’ imprisonment.
3 On 21 December 2018, the applicant’s resident return visa was cancelled pursuant to s 501(3A) of the Migration Act 1958 (Cth) (the cancellation decision). There is no issue in the present case that the criteria for mandatory cancellation of a visa under that provision were satisfied.
4 The applicant made a request for revocation of the cancellation decision. On 26 October 2020, a delegate of the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs decided not to revoke the cancellation decision. The applicant applied to the Administrative Appeals Tribunal (the Tribunal) for review of that decision. On 14 January 2021, the Tribunal decided to affirm the delegate’s decision not to revoke the cancellation decision: Taylor and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2021] AATA 19.
5 Upon completion of the applicant’s term of imprisonment, he was taken into immigration detention. He remains in immigration detention.
6 On 25 January 2021, the applicant filed an originating application for review of a migration decision by which he commenced the present proceeding. On 2 June 2021, the applicant filed an amended originating application for review of a migration decision. By the amended originating application, the applicant seeks the following relief:
[1.] A writ of habeas corpus issue.
[2.] An order in the nature of habeas corpus be made.
[3.] The Applicant be released from detention forthwith.
[4.] A declaration that the Applicant is a non-alien.
[5.] The decision of the Administrative Appeals Tribunal dated 14th January 2021 be quashed and/or set aside.
[6.] The First Respondent pay the Applicant’s costs.
7 After setting out these details, under the heading “Grounds of application”, the amended originating application states that all of the previous grounds have been abandoned, and sets out the following two new grounds:
1. In respect of the application under s 39B of the Judiciary Act 1903 (Cth), the Applicant’s detention purportedly under s 189 of the Migration Act 1958 (Cth) is unlawful by reason that [he] is a non-alien for the purposes of s 51(19) of the Commonwealth Constitution.
2. In respect of the application under s 476A of the Migration Act, the Tribunal’s decision was without or beyond authority because the Tribunal only relevantly has jurisdiction in respect of aliens.
8 At the hearing of the application, the applicant essentially advanced three contentions in support of the relief sought in the amended originating application. These were, in summary:
(a) By virtue of having been accepted by the Australian body politic and community as a citizen, the applicant is not an “alien” (as that expression is used in s 51(xix) of the Constitution). The fact that he renounced that citizenship in 1995 does not change his non-alien status. As a non-alien, he is not subject to the provisions of the Migration Act, which relevantly applies only to aliens. It follows that his detention under s 189(1) of the Migration Act is unlawful.
(b) Further or alternatively, the applicant is not an alien because he has the essential characteristics of a non-alien, based on a holistic assessment of his circumstances. As a non-alien, he is not subject to the provisions of the Migration Act. It follows that his detention under s 189(1) of the Migration Act is unlawful.
(c) Further or alternatively, the applicant’s detention is unlawful because the first respondent, the Minister for Home Affairs (the Minister), has not established that an officer “knows or reasonably suspects that [the applicant] … is an unlawful non-citizen” (see s 189(1) of the Migration Act).
9 The third contention is made in circumstances where it is common ground that the applicant is a non-citizen. Nevertheless, the applicant submits that the relevant officer of the Department of Home Affairs (Joshua Smith) does not have the requisite state of mind because: (a) Mr Smith’s suspicion is merely that the applicant may be (rather than is) a non-citizen; and (b) further or alternatively, Mr Smith has not taken sufficient steps to ascertain the applicant’s citizenship status, and therefore his suspicion is not based on reasonable grounds.
10 There is no suggestion that the applicant is an Aboriginal Australian or a Torres Strait Islander.
11 The applicant’s contentions do not involve any consideration of the Tribunal’s decision referred to above. It can, therefore, be put to one side.
52 The applicant’s first contention can be summarised as follows: by virtue of having been accepted by the Australian body politic and community as a citizen, the applicant is not an alien; the fact that he renounced that citizenship in 1995 does not change his non-alien status; as a non-alien, he is not subject to the provisions of the Migration Act; it follows that his detention under s 189(1) of the Migration Act is unlawful.
53 The applicant submits that, while a person who is currently a citizen is not an alien, alienage and citizenship are not “co-terminous”: Love v Commonwealth (2020) 270 CLR 152 (Love) at [466] per Edelman J and at [304]-[305] per Gordon J; Re Minister for Immigration and Multicultural Affairs; Ex parte Te (2002) 212 CLR 162 (Ex parte Te) at [53] per Gaudron J; Shaw v Minister for Immigration and Multicultural Affairs (2003) 218 CLR 28 (Shaw) at [79] per Kirby J.
54 The applicant relies heavily on the following passage in the judgment of Gleeson CJ, Gummow and Hayne JJ (with whom Heydon J agreed) in Shaw. Gleeson CJ, Gummow and Hayne JJ said at [32]:
This case should be taken as determining that the aliens power has reached all those persons who entered this country after the commencement of the Citizenship Act on 26 January 1949 and who were born out of Australia of parents who were not Australian citizens and who had not been naturalised.
(Emphasis added.)
55 The applicant notes that the above passage from Shaw was approved in Chetcuti v Commonwealth (2021) 392 ALR 371 (Chetcuti) at [15] per Kiefel CJ, Gageler, Keane and Gleeson JJ. The applicant’s submission is that, in circumstances where he was naturalised, he is not an alien within the above description of an alien. In oral submissions, counsel for the applicant submitted that what was said in Shaw at [32], and then endorsed in Chetcuti at [15], “exhaustively qualifies” who is an alien and the obverse, that is, who is not an alien (T70).
56 The applicant submits that his renunciation of his Australian citizenship does not alter the fact of his naturalisation, nor does it alter his constitutional status as a non-alien. The applicant refers to the following passage from the judgment of Toohey J in Cunliffe v Commonwealth (1994) 182 CLR 272 at 374-375:
In Nolan v Minister for Immigration and Ethnic Affairs the Court held that an alien can generally be defined as a person born out of Australia of parents who were not Australian citizens and who has not been naturalized under Australian law or a person who has ceased to be a citizen by an act or process of denaturalization.
(Footnote omitted; emphasis added.)
57 This passage reflects the judgment of Mason CJ, Wilson, Brennan, Deane, Dawson and Toohey JJ in Nolan v Minister of State for Immigration and Ethnic Affairs (1988) 165 CLR 178 (Nolan) at 183, where their Honours said:
As a matter of etymology, “alien”, from the Latin alienus through old French, means belonging to another person or place. Used as a descriptive word to describe a person’s lack of relationship with a country, the word means, as a matter of ordinary language, “nothing more than a citizen or subject of a foreign state”: Milne v Huber. Thus, an “alien” has been said to be, for the purposes of United States law, “one born out of the United States, who has not since been naturalized under the constitution and laws”. That definition should be expanded to include a person who has ceased to be a citizen by an act or process of denaturalization and restricted to exclude a person who, while born abroad, is a citizen by reason of parentage. Otherwise, it constitutes an acceptable general definition of the word “alien” when that word is used with respect to an independent country with its own distinct citizenship.
(Footnotes omitted; emphasis added.)
58 The applicant submits that even applying these descriptions, the applicant is not an alien, because he ceased to be an Australian citizen by renunciation rather than denaturalisation. The applicant submits that denaturalisation is an act or process by which the body politic rejects or revokes membership by way of citizenship. The applicant submits that denaturalisation is not the same as, but is a subset of, the more general concept of cessation of citizenship. It is submitted that the applicant has been the subject of no such process – he is, rather, a voluntary renouncer. The applicant submits that: the distinction between these two processes has been made clear by Parliament; renunciation is the only means of ceasing citizenship without initiation by the Minister (i.e. on behalf of the body politic or Australian community); denaturalisation occurs in response to unusual, prescribed crimes, including terrorism; those who are denaturalised cannot apply to resume their Australian citizenship; those who renounced their citizenship may, at any time, apply to ‘resume’ it.
59 The applicant submits that: the plainest indication that the applicant has been accepted (and never rejected) as a member of the Australian community which constitutes the body politic is the grant of citizenship to him, coupled with his loss of citizenship status arising from his voluntary renunciation of his citizenship; at the time of renunciation, no assessment of him was made by the Australian polity that he was unfit to be a citizen, or that he was no longer a “belonger” to the political community: see Love at [394], [437]-[438] per Edelman J; see also at [32]-[33] per Kiefel CJ.
67 The applicant’s second contention is expressed to be further or in the alternative to his first contention. The applicant contends, in summary, that: the applicant is not an alien because he has the essential characteristics of a non-alien, based on a holistic assessment of his circumstances; as a non-alien, he is not subject to the provisions of the Migration Act; it follows that his detention under s 189(1) of the Migration Act is unlawful.
68 The applicant submits that: alienage has a series of essential characteristics which may or may not coincide with statutory citizenship; it is a holistic assessment of the person’s connections to Australia and the Australian community, which are determinative of whether a person is an alien; for that reason, the High Court has recognised that persons can be non-citizen non-aliens (see Love) and, it must follow, that there can also be citizen aliens.
69 The applicant submits that, viewed holistically, the following facts and matters demonstrate that the applicant lacks the essential characteristics of an alien (arranged in chronological order):
(a) The applicant has been a British subject at all times.
(b) The applicant, who is 56 years old, has lived in Australia for almost 50 years.
(c) The applicant was invited to become, and became, one of “the people” under ss 7 and 24 of the Constitution. He lawfully voted at elections. This constitutional status was given to him and was exercised by him absent Australian citizenship.
(d) The applicant was invited to become, and became, one of “the people” under s 128 of the Constitution. He voted at referenda concerning amendments to the Constitution. This constitutional status was also given to him and was exercised by him absent Australian citizenship.
(e) The applicant met all the criteria for Australian citizenship and was, in fact, granted it. The applicant has never been denaturalised, as discussed in the submissions in support of the first contention.
(f) The applicants applied for and was granted an Australian passport. That passport contained the standard representation to the world from the Governor-General that the applicant was an Australian citizen. That passport continued to be valid after the applicant renounced his Australian citizenship.
(g) The applicant has an enduring connection to Australia including because his daughter, who is a child, is an Australian citizen.
70 The applicant submits that: it follows from the above that the applicant is a non-alien and is therefore not capable of being subject to detention or removal under ss 189 or 198 of the Migration Act respectively, even though he is an unlawful non-citizen.
71 Insofar as the applicant relies on his Australian passport, I assume that this is no longer in force. The fact that he held a passportwould seem to have been a consequence of his (then) Australian citizenship.
Some of the questions to the FCA were as follows:
Question 1: Can it be said that, "by virtue of having been accepted by the Australian body politic and community as a citizen, the applicant is not an alien; the fact that he renounced that citizenship in 1995 does not change his non-alien status; as a non-alien, he is not subject to the provisions of the Migration Act; it follows that his detention under s 189(1) of the Migration Act is unlawful"?
Question 2: Can it be said that "the applicant is not an alien because he has the essential characteristics of a non-alien, based on a holistic assessment of his circumstances; as a non-alien, he is not subject to the provisions of the Migration Act; it follows that his detention under s 189(1) of the Migration Act is unlawful"?
The FCA answered those questions as follows: