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Court Decision on Citizenship Rights of Abandoned Children
Is a person who is born in another country, but is then abandoned by their parents in Australia while still a child, entitled to Australian citizenship?
Our compassionate instincts may prompt us to think that the answer to this question should be “Yes” and that a person who has been left to fend for her or himself at a tender age should be given the benefit of Australian citizenship.
Whether one agrees with the proposition that there should be room to grant Australian citizenship on compassionate grounds or not, those feelings of compassion will conflict with the “hard reality” of Australian citizenship law as it now stands. This was demonstrated by a decision of the Full Court of the Federal Court of Australia that was decided late last week, SZRTN v Minister for Immigration and Border Protection (2015). The judgment in SZRTN effectively confirmed the interpretation of the Australian Citizenship Act 2007 that was articulated in another similar case that was decided by a single judge of the Federal Court earlier this year, Nicky v Minister for Immigration and Border Protection (2015) FCA 174 (5 March 2015).
The factual backgrounds in both the SZRTN and the Nicky cases were similar. SZTRN came before the Federal Court as a result of a lawsuit that was brought against the Minister and the Commonwealth by a person who was being held at the Villawood Immigration Detention Centre. The applicant in SZRTN claimed that he was in fact an Australian citizen and had been unlawfully detained. He sought both an injunction requiring his immediate release from detention and compensatory and punitive damages totaling $60 million.
Likewise, the claimant in the Necky case was being held in immigration detention on the basis that he was considered to be an unlawful non-citizen.
The history in SZRTN was that the applicant had been born in Samoa in 1981, and had been brought to Australia by his father in April 1987, when he was 5 years old. He was abandoned by his father within months of their arrival, and lived with his uncle and aunt and their children until he was 13 years old. After that time, he lived on the streets. He did not have any kind of visa.
The claimant in Nicky was born in Indonesia in September 1985. A birth certificate and a passport had been issued to him by the Indonesian government. He came to Australia with his mother in 2001, when he was 16 years old. However, in February 2002 (when the claimant would have been about 17), the mother’s visa was cancelled and she was deported from Australia. The claimant had asked his mother to take him back to Indonesia with her, but she refused to do so on the basis that the claimant would be better off in Australia. He then applied for a protection visa, which was refused. He remained in Australia after the bridging visa that had been granted in association with the application for the protection visa expired, and was ultimately taken into immigration detention in the year 2014.
In both Nicky and in SZRTN, the men claimed that they were entitled to citizenship on the basis of section 14 of the Australian Citizenship Act 2007. This section of the Act provides as follows:
“Citizenship for abandoned children
A person is an Australian citizen if the person is found abandoned in Australia as a child, unless the contrary is proved”
It should be recalled that the men who were litigants in SZRTN and in Nicky were abandoned in Australia before the date on which the Australian Citizenship Act 2007 came into force,
The Federal Court held in Nicky that the 2007 Citizenship Act did not have any “retrospective effect” as there is no wording in this Act that clearly expresses the intention that it should be applied retrospectively. Therefore, the Court concluded in Nicky that section 14 of the Act does not apply to a child who was abandoned before the effective date of 1 July 2007. In SZRTN, the Full Court agreed with the conclusion in Nicky that the Act does not apply retroactively. Accordingly, it was held in both Nicky and in SZRTN that claims for citizenship could not be made under the 2007 Act based on events that had occurred before 1 July 2007. Any claim based on events happening prior to 1 July 2007 must therefore be premised on the provisions of the Australian Citizenship Act 1948.
Neither of the litigants in SZRTN or Nicky found support for their claims to citizenship in the 1948 Act either. The 1948 Act included a section that was very similar in its terms to section 14 of the 2007 Act that is quoted above. That section, 5(3)(b), provides:
“(3) For the purposes of this Act
…………..
(b) a person who, when a child, was found abandoned in Australia shall, unless and until the contrary is proved, be deemed:
(i) to have been born in Australia”
Section 10(1) of the 1948 Act provided that a person who is born in Australia has a right to Australian citizenship.
Neither the claimants in Nicky or in SZRTN was able to establish that they were entitled to be “deemed” to have been born in Australia as a result of having been abandoned as children, because, in each case there was evidence to prove that they had not been born in Australia: in the Nicky case, the evidence of the claimant’s birth certificate and passport that had been issued by the Indonesian authorities, and in SZRTN¸ by the claimant’s own evidence that he had been born in Samoa.
Should the legislation be amended to provide that children who are brought to Australia on some form of temporary visa, are then abandoned by their parents and then grow up and spend much of their adult lives here have a clearer and easier path to citizenship, so they do not find themselves at some point being held in immigration detention and at peril of being deported back to the country of their birth?
That is a question on which I invite your comment, and of course one which the Parliament may ultimately wish to consider.
Concordia Pacific Migration Lawyers, Email: This email address is being protected from spambots. You need JavaScript enabled to view it.
, Tel: (02) 8068 8837
Comments
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Friday, 28 August 2015Totally agree with you Will
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Friday, 28 August 2015
There was no claim that either of these persons was born in Australia. As indicated in the article, both under the current Australian Citizenship Act 2007 and the previous legislation, the 1948 Act, there were provisions that a child abandoned in Australia is entitled to citizenship unless there is "proof to the contrary" - in other words, proof that the person holds citizenship elsewhere. It does not appear that the applicant in SZRTN had legal representation, only a Mckenzie Friend in the first instance before the Federal Court. Both of these people were in a desperate situation being held in immigration detention so to me it is unsurprising that they attempted to test the provisions of the ACI even though the prospects may not have appeared strong.
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Friday, 28 August 2015
Right so if they had legal representation it would of gone the other way, i.e they would of been deemed an Australian citizen?
however being abandoned by a parent when they entered into Australia, surely DIBP would of had their birth cert or some type of identity document proving who they were, they would of had citizenship of their country of origin. There was always going to be proof to the contrary because they could identify them and their country of origin through their father.
I dont understand the argument here?
it seems to me that this was an epic waste of time to try and get millions of compensation because "they could"
I am surprised this was even appealed... -
Friday, 28 August 2015
The applicant was not represented in the appeal to the Full Court and apparently relied on written submissions that were prepared in connection with the initial proceedings before a single judge of the Federal Court. As he was in immigration detention and apparently fated for removal/deportation, one could surmise that he took the view that (other than the possibility of suffering an adverse costs order) he had "nothing to lose" by taking the matter further and seeing if he could get a different result.
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Monday, 31 August 2015
Ahh yes I see Michael.
I always enjoy your blogs about cases, very interesting. -
Monday, 31 August 2015
Thanks Will!!! I am so pleased that you are finding the articles to be useful! It's great to know the reading audience is getting value out of them! Stay tuned as there will be much more to come!!!
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Thursday, 03 September 2015
Thank you Michael. Like what Will said, I always enjoy reading your articles. I shall thank Migration alliance's board as well as their members for providing this platform.
Cheers -
Friday, 17 June 2016
what if an illegitimate child was abandoned by his Australian father outside australia? does he has the right to claim his citizenship?
Immigration blog
Hang on, if there was proof that this individual was brought into Australia as a child with their parents and then subsequently "abandoned" how does a lawyer misconstrue that in relation to the Citizenship Act and take an application to the court to say that he was born here?
keeping in mind there was no dispute as to this individuals identity and his parents identity..
bit silly isnt it?