Is a person eligible for citizenship a “national”?

Federal Court (Full Court): a non-citizen was born, and was usually resident, in India. Although eligible for Sri Lankan citizenship, he was stateless. The IAA assessed his protection visa application on the basis that he was a Sri Lankan "national". The Minister argued to the Court that a person is a "national" of a country if they are a citizen or eligible for citizenship of that country.

Summary and discussion

The non-citizen (Appellant) was born in India but was not a national of that country. He was eligible for Sri Lankan citizenship, but was not a national of that country either. In fact, the Appellant was stateless.

He applied for a protection visa. That application was refused and automatically referred to the Immigration Assessing Authority (IAA) for review.

The IAA assessed Australia's complementary protection obligations under s 36(2)(aa) of the Migration Act 1958, which read as follows (emphasis added (emphasis added):

(2)    A criterion for a protection visa is that the applicant for the visa is:

...

(aa)    a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm...

Section 5 of the Act defined "receiving country" to mean:

(a)    a country of which the non-citizen is a national, to be determined solely by reference to the law of the relevant country; or

(b)    if the non-citizen has no country of nationality – a country of his or her former habitual residence, regardless of whether it would be possible to return the non-citizen to the country.

The IAA dealt with the review application on the basis that the Appellant was a Sri Lankan national. As a result, the IAA treated Sri Lanka as the "receiving country", instead of India, and affirmed the Minister's decision.

The Appellant applied to the Federal Court (FCA) for judicial review and a single judge found that the IAA had made a jurisdictional error, but exercised the discretionary power to refuse relief.

The Appellant appealed the FCA's decision to the Full Court of the FCA (FCAFC). The Minister cross-appealed, arguing that the IAA had not made a jurisdictional error.

In accordance with the above definition of "receiving country", the Minister did not dispute that it was for the relevant country to determine whether or not a person is a citizen of that country. Rather, the Minister made a much narrower argument that the terms "a national" in the above definition should be interpreted by reference to Australian domestic law. According to the Minister, in Australian domestic law, the terms "a national" are 'to be understood as a reference not only to a person possessing an existing status consistent with that description ... but also to a person possessing a present capacity to acquire that status'.

In summary, the question to the FCAFC was whether the terms "a national" were 'to be understood as a reference not only to a person possessing an existing status consistent with that description ... but also to a person possessing a present capacity to acquire that status'.

The FCAFC answered as follows...

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