Is an application for the grant of Australian citizenship by descent pursuant to S 16(2)(a) of the Australian Citizenship Act 2007 (Cth) concerned with the operation of law, or any deeming effect of adoption laws or with the factual situation that exists?
Koka v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 82 (28 May 2021)
Intro:-
This appeal concerns a single question regarding the proper construction of s 16(2)(a) of the Australian Citizenship Act 2007 (Cth). Section 16(2)(a) is one of the criteria to be satisfied on an application for the grant of Australian citizenship by descent, and requires that a parent of the person was an Australian citizen at the time of the birth.
Facts:-
The appellant, Mr Bledi Koka, was born in 1982 in Albania. Neither of his biological parents were Australian citizens. After his birth, his biological mother formed a relationship with Mr Pullumb Koka. On 17 May 1995, the appellant was adopted in Albania, under Albanian law, by Mr P Koka, who had obtained Australian citizenship by conferral in 1955.
On review of his unsuccessful application for Australian citizenship, the Administrative Appeals Tribunal had found on the evidence before it (including the adoption order of the Albanian Court, and the appellant’s birth certificate identifying Mr P Koka as his father) that the legal parental relationship Mr P Koka had with the appellant was “as if the Applicant had been born to Mr P Koka” and therefore Mr P Koka “was the Applicant’s parent at the time of his birth”, and his “parental relationship with the Applicant commenced at birth”.
In light of this finding, the Tribunal set aside the decision under review and remitted the citizenship application for reconsideration in accordance with a direction that the Applicant is eligible to become an Australian citizen as he had a parent, Mr Koka, who was an Australian citizen at the time of his birth, pursuant to section 16(2)(a) of the Australian Citizenship Act 2007 (Cth).
The first respondent, the Minister, appealed under s 44 of the Administrative Appeals Tribunal Act 1975 (Cth) to this Court. The primary judge upheld the appeal and set aside the Tribunal’s decision, remitting the matter to the Tribunal. The basis for his Honour’s orders was that the criterion in s 16(2)(a) looks to a factual situation as at the date of an applicant’s birth, not to any situation subsequently deemed by operation of law to have existed. Mr Koka now appeals from the primary judge’s orders.
Issue:-
The question on the appeal is whether the primary judge’s construction of s 16(2)(a) is correct.
Analysis:-
This Court finds the reasoning of the Court in H v Minister for Immigration and Citizenship [2010] FCAFC 119 to be persuasive, in terms of the focus of the provision in its text and context, and in light of its legislative history, as being on the factual circumstances which exist at the time of the birth of a child. We respectfully agree with the Full Court’s reasoning that the legislative history of the provisions of the Citizenship Act dealing with citizenship by descent focus on the facts as at the physical birth of a person.
The Full Court in McHugh v Minister [2020] FCAFC 223 held that the requirement in s 10(1) that a citizen by birth be born in Australia was considered “a criterion which is a question of fact, not law”. That approach is consistent with the primary judge’s construction of s 16(2) in the present case. Save for express exceptions for which it provides, the Citizenship Act has a focus on the factual situation at the time of the physical birth of a person.
The primary judge is correct to observe hat s 16(2)(a) is not concerned with the operation of law, or any deeming effect of adoption laws, but with the factual situation that exists at the time a child is born.
The appellant’s counsel fairly accepted that when the appellant was born in 1982, Mr P Koka was not in fact his parent, as Mr P Koka did not commence a relationship with the appellant’s mother until the appellant was 10 years old.
It can be accepted that these conclusions mean a person such as the appellant, who as the Tribunal accepted had a loving and genuine relationship with his Australian citizen father, falls between, or outside, the pathways which Parliament has set in the Citizenship Act for people adopted by an Australian citizen parent to become Australian citizens.
It is therefore correct to state that Parliament does not provide a pathway to Australian citizenship for all children adopted overseas. Indeed, on the conclusion reached in this appeal, the only children born and adopted overseas for whom a pathway to citizenship is provided are those covered, since 1998 (the date Australia acceded to the Hague Convention), by Subdiv AA of Div 2 of Part 2 of the Citizenship Act.
Nor does the Citizenship Act provide a pathway for all children adopted under Australian law: both the Citizenship Act, and its predecessor the 1948 Act only incorporated provisions for children adopted in Australia to become citizens from 1984.
Section 10A was added by the Australian Citizenship Amendment Act 1984 (Cth) with effect from 22 November 1984 (s 2(1) of the 1984 Amending Act), and applied to a relevant person adopted after that date (s 39(3) of the 1984 Amending Act).
Thus, children adopted in Australia before 1984 have no such pathway to citizenship.
These examples make good the Minister’s proposition that Parliament has chosen, by the text and structure of the statute, the pathways to Australian citizenship, including for those who are adopted children. They are not all encompassing. There are some arbitrary lines drawn. Some might well describe them as unfair or unjust. However, these are the legislative policy choices made by Parliament.
Conclusion:-
The primary judge did not err in his Honour’s construction of s 16(2)(a). That construction is correct. The appeal must be dismissed.
