FEDERAL COURT OF AUSTRALIA Thompson v Minister for Immigration & Multicultural Affairs [2004] FCA 139 MIGRATION – cancellation of visa – character test – visa holder born in Trust Territory of New Guinea – son of an Australian father and New Guinean mother – no registration of Australian citizenship – no naturalisation after arrival in Australia – grant of permanent resident entry permit – deemed grant of transitional (permanent) visa after 1994 – cancellation of visa – whether applicant was Australian citizen at time of cancellation – whether British subject – whether stateless – whether citizen of Papua New Guinea – applicant citizen of Papua New Guinea – not alien for purposes of Australian Citizenship Act upon entry into Australia – now alien - cancellation of visa within power – application dismissed Australian Citizenship Act 1948 (Cth) s 11, s 5 Migration Act 1958 (Cth) s 501 Migration Reform Act 1992 (Cth) Migration Reform (Transitional Provisions) Regulations 1994 reg 4 Constitution of Papua New Guinea s 65 Shaw v Minister for Immigration and Multicultural Affairs (2003) 203 ALR 143 cited Cunliffe v Commonwealth of Australia (1994) 182 CLR 272 cited Pochi v Macphee (1982) 151 CLR 101 cited Re: Patterson; Ex parte Taylor (2001) 207 CLR 391 cited JASON ANTHONY THOMPSON v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS W5 OF 2002 FRENCH J 26 FEBRUARY 2004 PERTH IN THE FEDERAL COURT OF AUSTRALIA WESTERN AUSTRALIA DISTRICT REGISTRY W5 OF 2002 BETWEEN: JASON ANTHONY THOMPSON APPLICANT AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS RESPONDENT JUDGE: FRENCH J DATE OF ORDER: 26 FEBRUARY 2004 WHERE MADE: PERTH THE COURT ORDERS THAT: 1. The application is dismissed. 2. The applicant is to pay the respondent's costs of the application. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. IN THE FEDERAL COURT OF AUSTRALIA WESTERN AUSTRALIA DISTRICT REGISTRY W5 OF 2002 BETWEEN: JASON ANTHONY THOMPSON APPLICANT AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS RESPONDENT JUDGE: FRENCH J DATE: 26 FEBRUARY 2004 PLACE: PERTH REASONS FOR JUDGMENT Introduction 1 Jason Anthony Thompson came to Australia with his Australian father in 1975. He was born of an indigenous New Guinean woman in the Trust Territory of New Guinea in 1969. His birth was not registered and so he did not acquire Australian citizenship by descent. Following his arrival in Australia no application was made or pursued for Australian citizenship. He was given a Permanent Resident Entry Permit in 1985 which, by operation of law, became a Transitional (Permanent) Visa in 1994. Mr Thompson has committed serious criminal offences including the rape of, and unlawful and indecent dealing with, a ten-year-old girl in 1986 and child stealing, also involving a ten-year-old girl, in 1998. The Minister has cancelled his visa. Mr Thompson challenges that decision on various grounds. 2 Mr Thompson's application was heard on 1 April 2003 but, after advice to the parties, judgment was deferred pending the decision of the High Court on the aliens power in Shaw v Minister for Immigration and Multicultural Affairs (2003) 203 ALR 143. That decision, given on 9 December 2003 was adverse to some of Mr Thompson's contentions. For the reasons that follow, the balance of his application cannot succeed and will be dismissed with costs. Factual and Procedural History 3 Jason Anthony Thompson was born in Lae on 9 April 1969, in what was the Trust Territory of New Guinea. His father, Brian Thompson, was born in Australia on 19 February 1931. He is and was at all material times an Australian citizen. Jason Thompson's mother, Lynette Tokan, was born in New Guinea. She is and was at all material times a British subject. She and his father were married according to the traditional laws and customs of New Guinea on 15 March 1967. Mr Thompson and his father came to Australia, arriving at Brisbane airport on 22 August 1975. They were travelling on the father's Australian passport. Later they travelled to Western Australia. In September 1977, according to records of the Department for Community Services (DCS) then known as the Department for Community Welfare, Mr Thompson's father left him in the care of a Mrs Glerum in Guildford and did not see him again. In 1979 he was committed to the care of the Department for Community Welfare until he reached the age of 18. 4 In 1983, DCS made an inquiry about the records of his birth in New Guinea. On 15 December 1983, the Australian High Commission wrote to DCS advising that there was no record of the registration of his birth. The Commission noted, however, that many births, particularly those that took place in villages or outlying areas were not registered. Further inquiries were made in April 1984 with the PNG Consulate General. The Consulate General advised the Department of Immigration and Ethnic Affairs in May 1984 that they had contacted Jason Thompson's uncle, Mr Henry Tokan, who acknowledged that Jason was his sister's son. His mother made a statutory declaration to that effect in December 1984 and also said in the declaration that she had married Regge (sic) Thompson on 15 March 1967. Mr Thompson received letters from his mother in July and October 1984 raising the possibility that he might visit her in PNG. In August 1984, an officer in the Citizenship Section of the Department of Immigration and Ethnic Affairs gave telephone advice to DCS that Mr Thompson was an Australian citizen by birth on the basis that PNG was an Australian dependency at the time of his birth. An officer of DCS wrote to Mr Thompson's mother in November 1984 indicating that that department would be applying for an Australian passport for her son. 5 On 21 August 1985, the Department of Immigration and Ethnic Affairs issued Mr Thompson with a Permanent Entry Permit under which he was permitted to remain in Australia for residence. The Permit, however, would have no effect after he left Australia. Departmental records of this grant indicate that he had arrived in Australia on 22 August 1975. By virtue of the Migration Reform (Transitional) Provisions Regulations 1994 the Entry Permit continued from 1 September 1994 as a Transitional (Permanent) Visa which permits its holder to remain indefinitely in Australia. 6 DCS sent a citizenship application on Mr Thompson's behalf to the Department of Immigration and Ethnic Affairs on 9 September 1985. However he failed to attend for a scheduled interview at the Department on 3 October 1985 and again on 13 November 1985. A departmental file note indicates that no further interviews were to be arranged. As it turned out, he was at that time on remand in the Longmore Detention Centre pending the hearing of charges of rape, deprivation of liberty and indecent dealing against him. 7 Mr Thompson accumulated a substantial criminal record both as a juvenile and as an adult. The detailed content of that record is set out as an annexure to these reasons. On 30 May 1986, as appears from the criminal record, he was convicted, after trial, in the Supreme Court of Western Australia of the offences of breaking and entering and rape. He was also convicted at the same time, on his plea of guilty, of unlawful and indecent dealing. The victim of the rape and the unlawful and indecent dealing was a 10 year old girl. Late one night, while under the influence of alcohol, Mr Thompson entered a residence by pushing open a flywire door, went into the girl's bedroom in the residence, picked her up and carried her out to a shed on the premises. It was there that the indecent dealing and the rape occurred. Neither the girl nor her family were known to him. In respect of each offence he was sentenced by Rowland J to be detained in strict custody until the governor's pleasure be known and thereafter in safe custody in such place or places as the governor might from time to time direct. The order was made under the provisions of s 19(6a)(a) of the Criminal Code. At the time he was sentenced Mr Thompson was 17 years of age. 8 On 20 March 1998, Mr Thompson was sentenced, having been convicted after trial, for one count of burglary and one count of attempted child stealing. These offences occurred in the early hours of 9 October 1996. He went to the house of a ten year old girl and entered through a closed but unlocked rear door. He went to the girl's bedroom, picked her up and carried her towards the rear of the house. She awoke in the hallway, realised it was not her father carrying her and screamed. He then put her down and fled. The sentencing judge observed that nothing in any report she had ordered nor in Mr Thompson's antecedents held out any hope for his rehabilitation or reform. On the offence of burglary, he was sentenced to ten years imprisonment. For attempted child stealing he was sentenced to five years imprisonment. The sentences were to be served concurrently commencing from 15 August 1997, the date from which he had been in custody in relation to those offences. The sentencing judge made a further order that he be imprisoned indefinitely. 9 On 21 May 2001, an officer of the Department of Immigration and Multicultural Affairs sent a letter to Mr Thompson giving notice that the Minister intended to consider cancelling his visa under subs 501(2) of the Migration Act 1958 (Cth). He responded to that notice with a letter dated 29 May 2001 in which he claimed to be reformed. He sent a further letter on 7 June 2001 asserting that his father was an Australian citizen and that he himself was an Australian citizen by birth. He sought further time to enable his status as an Australian citizen to be verified. 10 In a letter dated 12 June 2001, an officer of the Cancellation Section of the Department wrote to Mr Thompson at Hakea Prison advising that until the age of five years he was eligible for Australian citizenship by birth had his father registered his birth with the Department. However his father had not done that. Moreover his birth had not been registered with the Registrar General's office in PNG. The Angau Hospital in Lae in New Guinea, where he was born, had no record of the birth. His mother was not an Australian citizen and citizenship by descent was therefore not conferred. The letter referred to his application for Australian citizenship on 7 March 1985 and the departmental conclusion that he was not an Australian citizen at that time. It also mentioned his failure to attend interviews in relation to his application for citizenship. It pointed out that under s 10C of the Citizenship Act he was eligible to apply for Australian citizenship by descent. Section 10C has a character requirement which must be satisfied. There was other correspondence between Mr Thompson and the Department which it is not necessary to set out here. 11 The Minister received a submission from his department, dated 28 November 2001, relating to the cancellation of Mr Thompson's visa under s 501(2) of the Migration Act. It was entitled Re Jason Anthony THOMPSON dob 09.04.1969 LIABILITY FOR CANCELLATION OF Jason Anthony THOMPSON's VISA UNDER SECTION 501(2) OF THE MIGRATION ACT. The departmental paper sought the Minister's decision on whether Mr Thompson passed the character test in s 501(6) of the Migration Act and, if not, whether his visa should be cancelled pursuant to s 501(2). In referring to the 'Immigration History of Visa Holder' it referred to the Visa Class as 'permanent resident entry permit granted 21.08.1985'. It described the visa expiry date as 'on departure from Australia' and the Stay Period of the Visa as 'indefinite'. As will appear from reference to the relevant regulations below, the deemed 'transitional (temporary) visa', which supplanted the Permanent Resident Entry Permit in 1994, conferred the same entitlements to remain in Australia as the Permanent Resident Entry Permit. 12 The paper to the Minister referred to the convictions and sentences imposed in May 1986 and March 1998. It also referred to other convictions in 1994, 1995 and 1997. It was put to the Minister that it was open to him to find on those facts that there was a reasonable suspicion that Mr Thompson did not pass the character test because he had been sentenced to a term of imprisonment for twelve months or more. 13 The paper set out factors relevant to the exercise of the Minister's discretion including matters covered by a Ministerial Direction under s 499 of the Act which had issued to delegates and the AAT in relation to the exercise of their discretion under s 501. It was pointed out to the Minister that he was not personally bound by his s 499 Direction, but it was open to him to be guided by the factors set out in the direction. Various of those factors were then referred to. The seriousness of sexual assaults, kidnapping, crimes against children and other crimes involving violence or the threat of violence was one such factor. 14 The paper set out Mr Thompson's full criminal record. It also reproduced extracts from the sentencing remarks of Rowland J and Yeats DCJ in 1986 and 1998 respectively. Mr Thompson's more recent behaviour was discussed, including five separate occasions on which he was found guilty of internal charges within the prison system. It was said to be open to the Minister to find that he was at a high risk of recidivism. Issues of general deterrence and the 'Expectations of the Australian Community' were also addressed. It was pointed out that Mr Thompson has no children so the Convention on the Rights of the Child did not apply. Under the heading 'Other Considerations' reference was made to the fact that Mr Thompson's father and aunt live in Australia. The Department had advice from his aunt that his father is now in an aged care home in Brisbane. His mother resides in PNG. It was pointed out he has been a permanent resident of Australia since 1985. It was submitted that Mr Thompson is not an Australian citizen. His formal application for Australian citizenship in 1985 and the non-completion of that process were recounted. 15 Under the heading 'DECISION' in Part E of the submission, the Minister endorsed his approval, on 5 December 2001, on the following paragraphs: '[49] I have considered all relevant matters including (1) an assessment of the Character Test as defined by s501(6) of the Migration Act 1958, (2) my Direction under s499 of that Act, Mr Jason Anthony THOMPSON's comments, and have decided that: ... (d) I reasonably suspect that Mr Jason Anthony THOMPSON does not pass the character test and Mr Jason Anthony THOMPSON has not satisfied me that he passes the character test AND I have decided TO EXERCISE MY DISCRETION UNDER SUBSECTION 501(2) OF THE ACT TO CANCEL THE VISA, so I hereby cancel the visa.' The decision was signed by the Minister and dated 5 December 2001. 16 On 7 January 2002, Mr Thompson made application for judicial review of the Minister's decision. The matter eventually came on for hearing on 1 April 2003. Judgment was reserved and, after advice to the parties, deferred until the High Court had delivered judgment in Shaw v Minister for Immigration and Multicultural Affairs. That judgment was delivered on 9 December 2003. No further submission has been received. Grounds of the Application 17 The original application was amended. The grounds of the amended application were as follows: '3. THE GROUNDS OF THE APPLICATION ARE: a) In purporting to apply the provisions of s501 and by making his decision purporting to cancel the Applicant's Visa and thereafter by notifying the Applicant that the Respondent intends to take the Applicant into detention for the purposes and with the intention of removing the Applicant from Australia, the Respondent has acted unlawfully and beyond the powers of the Commonwealth. PARTICULARS i. The Applicant was born in Lae in the Territory of New Guinea on 9 April 1969. ii. The Applicant remained in the Territory of New Guinea and/or the Territory of Papua from his birth until he left the Territory of Papua and entered Australia in the company of his father Reginald Brian Thompson on 22 August 1975. iii. From and after 22 August 1975 and at all times the Applicant has remained in Australia. iv. The Independent State of Papua New Guinea came into being on 16 September 1975 and Her Majesty Queen Elizabeth the Second at all material times has been the Head of State of Papua New Guinea. v. The Applicant's father is Brian Reginald Thompson who was born in Footscray in the State of Victoria in Australia on 19 February 1931 and who at all material times is and has been an Australian citizen. vi. The Applicant's mother Lynette Tokam was born in the Territory of New Guinea and at all material times was and remains a British Subject. vii. The Applicant's parents were married on 15th March 1967 by the traditional law and customs of New Guinea. viii. In or about August 1975, the Applicant was registered by the Applicant's father with the Australian authorities as his son and as an Australian citizen either in Port Moresby in the Colony of Papua shortly prior to the Applicant travelling to Australia or upon the Applicant's arrival at Brisbane Airport in the State of Queensland in Australia on 22 August 1975. xi. The Applicant was from and after his arrival in Australia on 22 August 1975 an Australia (sic) citizen and has thereafter at all material times remained and continues to be an Australian citizen. x. In the alternative, as and from the Applicant's arrival in Australia on 22 August 1975, the Applicant has been a permanent resident of Australia. Further, at all material times from his birth, the Applicant has been a British subject. xi. The Applicant has been absorbed into the Australian Community and is no longer a migrant to Australia. xii. The Applicant is not and never has been "an alien" within the meaning of s51(xix) in the Constitution. xiii. Whether as an Australian citizen or as a person who is no longer a migrant and who was never an alien, the Commonwealth Parliament has no power to legislate to remove the Applicant from Australia or to hold him in detention pending such removal. xiv. The Applicant is not subject to the power purported to be exercised by the Respondent under s501(2) of the Migration Act. xv. The Decisions made to cancel the Applicant's visa was a decision which was not capable or reasonably capable of reference to the power given to the Respondent under ss189, 196 and 501 of the Migration Act as the Respondent's power did not extend to persons in the position of the Applicant. xvi. The Respondent has no power to remove the Applicant from Australia or to hold the Applicant in detention. b) The Respondent's decision was made without jurisdiction and in breach of natural justice. PARTICULARS i. To exercise a power to cancel a visa under s 501(2) of the Migration Act it is necessary to identify the visa intended to be cancelled. The Respondent identified the visa which it purported to cancel as a "permanent resident entry permit granted 21 August 1985". There is no such visa or visa class. ii. To exercise a power decision pursuant to s501(2) of the Act the Respondent was firstly required to determine whether or not the Applicant met the character test and secondly to exercise his discretion whether or not to cancel the Applicant's visa. iii. In order to properly exercise his discretion, the Respondent was required to consider and determine the competing interests for and against the cancellation of the Applicant's visa. iv. The Respondent had regard to an irrelevant consideration, namely that the Applicant was a citizen of Papua New Guinea when in fact the Applicant was either an Australian citizen or a stateless person. v. The Respondent was required to have regard, as a relevant consideration, to the fact that the Applicant was an Australian citizen and, if not, then to the fact that the Applicant was a stateless person and had no country to which he could be removed. vi. The Respondent failed to accord the Applicant natural justice in that the Respondent did not have regard to the obligations owed by Australia under the Convention relating to the Status of Stateless Persons 1954 and did not inform the Applicant that he did not intend to have regard to those obligations.' 18 The relief sought is prohibition, certiorari and associated injunctive and declaratory relief. The Issues for Determination 19 There are two limbs to ground (a) of the application which asserts that in cancelling Mr Thompson's visa and in proposing to take him into detention under the Migration Act for removal from Australia, the Minister acted unlawfully and beyond Commonwealth power. The first limb, reflected in particulars (i) to (xi), depends upon the proposition that Mr Thompson was, from and after his arrival in Australia on 22 August 1975, an Australian citizen. 20 The second proposition reflected in particulars (viii) to (xvi) is that Mr Thompson, as a British subject absorbed into the Australian community, is no longer an immigrant and is also not an alien within the meaning of that term as used in the Constitution. The second limb of the constitutional ground, in so far as it relies upon his alleged status as a British subject cannot succeed in light of the decision of the High Court in Shaw. 21 The third issue raises an administrative law ground, based upon the Minister's alleged failure to have regard to the fact that Mr Thompson was either an Australian citizen or a stateless person. Presumably contingent upon the latter characterisation is the proposition in particular (vi) of ground (b), that the Minister failed to have regard to the Convention Relating to the Status of Stateless Persons and did not inform Mr Thompson of his intention not to have regard to it. Statutory Framework – Migration Act and Regulations 22 Mr Thompson was granted his Permanent Resident Entry Permit in August 1985. The Migration Reform Act 1992 (Cth) amended the Migration Act and replaced the permit system with a visa system with effect from 1 September 1994. The Migration Reform (Transitional Provisions) Regulations 1994 provided, by reg 4: '4(1) Subject to regulation 5, if, immediately before 1 September 1994, a non-citizen was in Australia as the holder of a permanent entry permit, that entry permit continues in effect on and after 1 September 1994 as a transitional (permanent) visa that permits the holder to remain indefinitely in Australia.' 23 Section 501(2) of the Migration Act provides for the cancellation of visas on character grounds as follows: '501(2) The Minister may cancel a visa that has been granted to a person if: (a) the Minister reasonably suspects that the person does not pass the character test; and (b) the person does not satisfy the Minister that the person passes the character test. ... (6) For the purposes of this section a person does not pass the character test if: (a) the person has a substantial criminal record (as defined by subsection (7)); or ... (c) having regard to either or both of the following: (i) the person's past and present criminal conduct; (ii) the person's past and present general conduct; the person is not of good character. ... (7) For the purposes of the character test, a person has a substantial criminal record if: (a) the person has been sentenced to death; or (b) the person has been sentenced to imprisonment for life; or (c) the person has been sentenced to a term of imprisonment of 12 months or more; or (d) the person has been sentenced to two or more terms of imprisonment (whether on one or more occasions), where the total of those terms is two years or more; or (e) the person has been acquitted of an offence on the grounds of unsoundness of mind or insanity and as a result the person has been detained in a facility or institution. ... (12) In this section: court includes a court martial or similar military tribunal. imprisonment includes any form of punitive detention in a facility or institution. sentence includes any form of determination of the punishment for an offence.' Statutory Framework – Australian Citizenship Legislation 24 The Australian Citizenship Act 1948 (Cth), at the time of Mr Thompson's entry into Australia, contained the following provisions relevant to the citizenship status of persons born outside Australia. 25 Section 11 provided: '11(1) A person born outside Australia on or after 26 January, 1949, is an Australian citizen by descent if – (a) in the case of a person born in wedlock – at the time of the birth his father or mother was an Australian citizen; or (b) in the case of a person born out of wedlock – at the time of the birth his mother – (i) was an Australian citizen; or (ii) was, or had the status of, a British subject and was ordinarily resident in Australia or New Guinea, and, in either case, the birth was or is registered at an Australian Consulate within five years after its occurrence or within such further period as the Minister allowed or allows.' Subsections (2) to (4) of s 11 are not relevant for present purposes. 26 The term 'alien' appeared in various parts of the Act which are also not material for present purposes. That term was defined in s 5(1) as follows: '"alien" means a person who does not have the status of a British Subject and is not an Irish citizen or a protected person.' That definition was omitted by s 4 of the Australian Citizenship Amendment Act 1984 (No 129 of 1984). 27 'Australia' was also defined, in s 5(1), for the purposes of the Act thus: ''Australia' includes the territories that are not trust territories.' That definition was replaced in 1984 by a definition of 'Australia' as: 'Australia, when used in a geographical sense includes the external territories.' The effect of the definition as it stood in 1969 was that the Trust Territory of New Guinea was not part of Australia, for the purposes of the Act, at the time of Mr Thompson's birth. 28 Section 5(3A) provided: '(3A) For the purposes of this Act, a protected person is a person declared by the regulations to be, for the purposes of this Act, under the protection of the Australian Government or of the Government of a country, or of a part of a country to which section 7 applies.' 29 Regulation 5 of the Citizenship Regulations 1960, made under the Nationality and Citizenship Act 1948-1959 (Cth) provided, inter alia: '5(1) In this regulation, "Australian protected person" means a person – (a) who, having been born in New Guinea or Nauru, whether before or after the commencement of these Regulations, is not a British subject; or (b) who is registered as an Australian protected person under sub-regulation (4) of this regulation, but does not include a person who has, in accordance with this regulation renounced his status as, and ceased to be, an Australian protected person.' The Act defined 'New Guinea' as 'the Territory of New Guinea'. 30 The Act provided for the status of British subjects thus: '7(1) A person, who under this Act, is an Australian citizen or, by a law for the time being in force in a country to which this section applies, is a citizen of that country has, by virtue of his Australian citizenship or his citizenship of that country, as the case may be, the status of a British subject. (2) The countries to which this section applies are the following countries and any other country declared by the regulations to be a country to which this section applies:– Commonwealth of the Bahamas People's Republic of Bangladesh Barbados Republic of Botswana Canada Republic of Cyprus Fiji The Gambia Republic of Ghana Guyana Republic of India Jamaica Republic of Kenya Kingdom of Lesotho Republic of Malawi Malaysia Malta Mauritius Republic of Nauru New Zealand Federal Republic of Nigeria Sierra Leone Republic of Singapore Republic of Sri Lanka Kingdom of Swaziland United Republic of Tanzania Kingdom of Tonga Trinidad and Tobago Uganda United Kingdom and Colonies Independent State of Western Samoa Republic of Zambia.' Section 8 provided for Irish citizens to have the status of British subjects if certain conditions were fulfilled. 31 In 1975, reg 5A was inserted in the Australian Citizenship Regulations. It provided: '5A. Each of the following countries is declared to be a country to which section 7 of the Act applies: Grenada; Independent State of Papua New Guinea.' Statutory Framework – Papua and New Guinea 32 Papua New Guinea achieved its independence in 1975. Prior to independence, Papua had been placed by the British Crown under the authority of Australia and administered by Australia as the Territory of Papua under the Papua Act 1905-1940 (Cth). Under a Mandate from the League of Nations the former German possession of New Guinea was administered by Australia under its New Guinea Act 1920-1935 as the Territory of New Guinea. The two Territories were thereafter administered jointly by Australia under the Papua-New Guinea Provisional Administration Act 1945-1946. The Papua and New Guinea Act 1949 provided for the administration of the two Territories. Papua continued as a possession of the Crown. New Guinea had become a Trust Territory administered pursuant to a Trusteeship Agreement approved by the United Nations on 13 December 1946. 33 By s 4 of the Papua New Guinea Independence Act 1975 (Cth) Australia ceased to have 'any sovereignty, sovereign rights, or rights of administration in respect of and appertaining to the whole or any part of Papua New Guinea.' The various Papua New Guinea Acts were repealed. Up to independence Papua and New Guinea had retained their distinct characters as Crown possession and Trust Territory respectively. So, up to 9 September 1975 when the Independence Act came into operation, New Guinea was not part of Australia for the purposes of the Australian Citizenship Act 1948. 34 The Constitution of Papua New Guinea provided for the citizenship of the new nation. Independence Day was 16 September 1975. Section 65 of the Constitution provided, in the relevant parts: '65. Automatic citizenship on Independence Day (1) A person born in the country before Independence Day who has two grand-parents who were born in the country or an adjacent area is a citizen. ... (4) Subsections (1) and (2) do not apply to a person who: (a) has a right (whether revocable or not) to permanent residence in Australia; or (b) is a naturalized Australian citizen; or (c) is registered as an Australian citizen under s 11 of the Australian Citizenship Act 1948-1975 of Australia; or (d) is a citizen of a country other than Australia, unless that person renounces his right to residence in Australia or his status as a citizen of Australia or of another country in accordance with Subsection (5).' 35 Regulation 4 of the Papua New Guinea Independence (Australian Citizenship) Regulationsprovided that a person who, immediately before Independence Day, was an Australian Citizen and became a citizen of Papua New Guinea by virtue of the Constitution of Papua New Guinea ceased to be an Australian citizen. The Citizenship Status of the Applicant 36 Mr Thompson was born in the Trust Territory of New Guinea in 1969. He was not therefore born in Australia for the purposes of the Australian Citizenship Act 1948. This is because of the definition of Australia in s 5 of that Act which does not include Trust Territories. 37 According to an uncontested affidavit sworn by Mr Thompson Snr he was employed in both the Trust Territory of New Guinea and the Australian colony of Papua in the 1960s and 1970s. He was employed by a company called 'Steamships'. He was stationed in Lae in New Guinea for a substantial part of the time and for some part in Port Morseby. He was also stationed at other places that he does not now recall. While working in Papua and New Guinea he met Lynette Tokan, whom he described as a 'native of Papua and New Guinea'. In 1967, with the permission of her parents and family, they entered into a marriage through local custom. They regarded themselves as married but the marriage was not registered with the Australian authorities. He said he had seen a copy of the statutory declaration from Ms Tokan dated 1 November 1984 confirming their marriage and the birth of their son, Jason. He confirmed that the details contained in the statutory declaration were correct to the best of his knowledge. That statutory declaration, stated that Jason Thompson was born at Angu Hospital in Lae. 38 Mr Thompson Snr and Ms Tokan lived together as a married couple for about eight years. They only had the one child. When they finally parted in 1975, which was shortly prior to independence, Mr Thompson Snr decided to return to Australia. He and his wife agreed that he would take responsibility for Jason and take him to Australia with him. He travelled to Port Morseby with his son and arranged with an Australian official there for his son to travel to Australia with him. Mr Thompson Snr and Jason then flew from Port Morseby to Brisbane. He said that to the best of his knowledge and belief Jason entered Australia and was accepted as his son and as an Australian citizen on 22 August 1975. 39 Shortly after entering Australia, Mr Thompson Snr and his son travelled to Western Australia where they stayed with friends in Guildford. After a few months the people with whom they were staying said they wanted to look after Jason on a permanent basis. Mr Thompson Snr agreed to leave him in their care. He has had limited contact with his son since that time. 40 Counsel for Jason Thompson asked the Court to infer, on the balance of probabilities, that he was registered as an Australian citizen under s 11 of the Australian Citizenship Act 1949-1973. I cannot draw that inference. There is no record of any registration and no evidence from Mr Thompson Snr that any steps were ever taken to effect registration of the birth under s 11 of the Australian Citizenship Act. Because he was born in the Trust Territory of New Guinea, Jason Thompson was born outside Australia for the purposes of s 11. The only way in which he could acquire Australian citizenship by descent was by registration of his birth within five years. This did not happen. He has not since been naturalised. I conclude that he is not an Australian citizen. 41 The question then arises whether Mr Thompson is a citizen of Papua New Guinea. I am prepared to infer, on the evidence, that he has two grandparents who were born in that country, those being his mother's parents. Information in a cable dated 24 June 1985 from the Department of Foreign Affairs in Port Morseby to the Department of Immigration and Ethnic Affairs in Canberra indicated that Ms Tokan was born in 1948 at Pob Pari Village, Chimbu Province, New Guinea and not in Papua. There is nothing to suggest that either of her parents came from outside Papua and New Guinea. It follows that by reason of s 65(1) of the Constitution of Papua New Guinea, Mr Thompson, as a person born in the country before Independence Day, was automatically entitled to citizenship. He did not have, at the time of Independence, any right to permanent residence in Australia. He was not given a Permanent Resident Entry Permit until 1985. He was not a naturalised Australian citizen, nor registered under s 11 of the Australian Citizenship Act. Nor was he a citizen of a country other than Australia. 42 It would seem therefore, as the respondent submits, that Mr Thompson was and remains a citizen of Papua New Guinea. Section 70 of the Constitution of Papua New Guinea sets out the conditions for automatic loss of citizenship. There is no evidence, nor is it suggested, that there is any basis for saying that Mr Thompson has lost that citizenship under the provisions of s 70. 43 It is also submitted for the respondent that Mr Thompson arrived in Australia as a 'protected person' under the Australian Citizenship Act and so was not an alien for the purposes of that Act. I accept that submission. That leaves open the question whether he lies within the reach of the Migration Act which is now based upon the aliens power under s 51(xix) of the Constitution. 44 I conclude, on the citizenship question, that Mr Thompson was neither an Australian citizen nor a stateless person. He was, and it appears still is, a citizen of Papua New Guinea. Ground of Application (a) 45 For the reasons set out above, the first ground of the application cannot succeed. Mr Thompson is not an Australian citizen. He was not a British subject under s 7 of the Australian Citizenship Act because he was not a citizen of a country to which that Act applied. The fact that he was born in a Trust Territory administered by Australia did not make him a subject of the Crown by reason of that administration. When entering Australia he was not an alien as defined by the Australian Citizenship Act as it then stood. This is because he was a 'protected person' being a person who met the criteria of that classification under reg 5(1) of the Citizenship Regulations 1960. That is to say, he was not a British subject and he was born in New Guinea. 46 I am prepared to accept that Mr Thompson cannot be regarded as an immigrant in the constitutional sense relevant to the immigration power. Despite his significant criminal record, the fact is he has been in Australia for more than 28 years, having been brought to this country by his father at 6 years of age. After his abandonment by his father in 1977 he was made a ward of the State in Western Australia. He was given a Permanent Resident Visa in 1985. DCS made application for Australian citizenship for him in that year although he did not follow up by attending for interviews. The assumption that, if he ever had the status of an immigrant, he has well and truly lost it now seems a reasonable one. 47 The question remains whether he is now an alien amenable to exclusion from Australia by cancellation of his permission to reside here. He was not an alien for the purpose of the Australian Citizenship Act when he came to Australia. That was because he fell within the definition of a 'protected person'. That does not determine whether he was an alien at the time that the Minister made the cancellation decision. 48 Shaw's case does not resolve the question for as Gleeson CJ, Gummow and Hayne JJ said in the judgment in that case 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.' That statement of the proposition for which Shaw is authority does not preclude the possibility that a person who is born of an Australian parent outside Australia, but does not acquire Australian citizenship and who acquires the citizenship of another country, is an alien. 49 Their Honours also referred to the observation by Toohey J in Cunliffe v Commonwealth of Australia (1994) 182 CLR 272 at 375 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.' Their Honours went on to say that (at [9]): 'The "ordinary understanding" of the term "alien", correctly, is not said to be at large. Its appropriate use in Australia must have regard to the circumstances and conditions applicable to the individual in question.' 50 The Parliament cannot enhance the legislative power it enjoys with respect to aliens under s 51(xix) by adopting a statutory definition of the term which is wider than its constitutional meaning – Pochi v Macphee (1982) 151 CLR 101 at 109 (Gibbs CJ). On the other hand there seems no reason why Parliament, which can define by statute the terms and conditions of Australian citizenship and therefore take people out of the constitutional class of aliens, cannot pass a law that describes a certain class of persons who are not Australian citizens as non-aliens. This is underpinned by the proposition that there is no constitutional concept of Australian citizenship. It does not involve an excess of power. So it is open to Parliament to define a protected person out of alien status as it did with the Australian Citizenship Act as it previously stood. But that status may change. As Gummow and Hayne JJ said in Re Patterson; Ex parte Taylor (2001) 207 CLR 391 (at [235]): '... persons may acquire the status or character of alienage by reason of supervening constitutional and political events not involving any positive act or assent on the part of the person concerned. A British subject could be rendered an alien by reason of loss of territory of the British Crown. This might come about, as in the case of the recognition by Britain of the independence of the United States, by statute recognising a new sovereignty over the territory in question.' Their Honours referred to other examples provided by legislation dealing with the consequences of the grant of independence outside the Commonwealth to countries such as Burma. Their Honours went on to say (at [237]): 'The relationship between Australia and New Guinea provides a striking instance of the loss of citizenship by reason of constitutional changes. The Papua New Guinea Independence Act 1975 (Cth) provided that Australia ceased to have any sovereignty, sovereign rights or rights of administration in respect of or appertaining to the whole or any part of Papua New Guinea. In exercise of the regulation-making power conferred by s 6, reg 4 of the Papua New Guinea Independence (Australian Citizenship) Regulations provided that a person who immediately before independence day on 16 September 1975 was an Australian citizen and who, on independence, became a citizen of Papua New Guinea, ceased on that day to be an Australian citizen.' 51 Their Honours approved the observation by Gibbs J in Pochi v Macphee that Parliament cannot expand its legislative power with respect to aliens by a process of statutory definition. However they did say (at [238]): '... the situation that arose with the establishment of the independent state of Papua New Guinea and the supporting Australian legislation considered above may suggest that Gibbs CJ expressed the power too narrowly, or that he did not mean to state it exhaustively, when he said in the same passage in Pochi v Macphee: "[T]he Parliament can in my opinion treat as an alien any person who was born outside Australia, whose parents were not Australians, and who has not been naturalised as an Australian."' 52 Their Honours put the matter this way in respect of the application of s 501(3) of the Migration Act (at [241]): 'The matter may be looked at somewhat differently by asking whether, at the time of the purported application to him of s 501(3) of the Migration Act by the decision of the respondent, the prosecutor was a citizen or subject of a foreign state and had not become an Australian citizen. That was the interpretation given to "alien" in the joint judgment of six members of the Court in Nolan v Minister for Immigration and Ethnic Affairs (1988) 165 CLR 178 at 183. Writing long before, in 1833, in his Commentaries on the Constitution of the United States, Story had answered the question of who would be considered aliens entitled to sue in the courts of the United States by saying that the general answer was "any person, who is not a citizen of the United States". Undoubtedly, at the time of the enactment of s 501(3) and the exercise of power thereunder, the prosecutor was a citizen of a foreign power.' 53 At the time that the Minister made his decision to cancel the visa in the present case, Mr Thompson was neither an Australian citizen nor a British subject. He was in fact by that time the citizen of a foreign country. Absent any statutory provision to the contrary he was an alien. The fact of his arrival in this country in 1975 does not therefore place him beyond the reach of the exercise of the ministerial power under s 501. The first, and principal ground of the application, ground (a), therefore fails. Ground of Application (b) 54 This ground is premised upon the proposition that Mr Thompson was either an Australian citizen or a stateless person. Neither of those premises is sustained so this ground also fails. Conclusion 55 Many Australians, having regard to Mr Thompson's criminal record, would not be sorry to see him go. Nevertheless it might well be thought that he is Australia's responsibility rather than that of Papua New Guinea. He is the son of an Australian citizen. He came to this country at 6 years of age, over twenty-eight years ago. He has lived in this country ever since. He appears to have been abandoned by his Australian father when he was 8 years old. His upbringing was largely under the supervision of the Department of Community Services in Western Australia and its predecessor, the Department of Community Welfare. 56 A combination of Mr Thompson's particular circumstances, the laws of Australia and the Constitution of Papua New Guinea mean, in my opinion, that he is not an Australian citizen. His most serious offences were quite abhorrent. But the question could well be asked, as between Australia and Papua New Guinea, who should bear the burden of his presence. Be that as it may, for the reasons which I have set out, the application will be dismissed with costs. I certify that the preceding fifty-six (56) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice French. Associate: Dated: 26 February 2004 Counsel for the Applicant: Mr HNH Christie Solicitor for the Applicant: Christie Strbac Counsel for the Respondent: Mr JD Allanson Solicitor for the Respondent: Australian Government Solicitor Date of Hearing: 1 April 2003 – Judgment deferred pending Shaw's case. Date of Judgment: 26 February 2004 Annexure A Date Conviction Sentence Under 18 years 28.03.1983 firearm possess no licence DCW until 18 yrs 28.03.1983 stealing (3 counts) DCW until 18 yrs 07.07.1983 stealing with violence probation 12 mths 25.08.1983 stealing probation 12 mths 24.11.1983 break & enter dwelling with intent (3 counts) DCW 12 mths 15.03.1984 firearm possess no licence DCW until 18 yrs 14.06.1984 unauthorised use of motor vehicle DCW until 18 yrs 14.06.1984 dangerous driving 1st offence DCW until 18 yrs 14.06.1984 no MDL DCW until 18 yrs 23.08.1984 assault aggravated $50 fine 23.08.1984 going armed so as to cause fear GB bond $100 6 mths 17.12.1984 stealing $30 fine 10.01.1985 reckless driving CWD 6 mths, disq hold MDL 6 mths 10.01.1985 unauthorised use of motor vehicle CWD 6 mths, disq hold MDL 6 mths 10.01.1985 no MDL CWD 6 mths, disq hold MDL 6 mths 11.03.1985 on premises without lawful excuse DCW until 18 yrs 30.05.1986 break and enter strict custody until Governor's pleasure, thereafter in safe custody in place as Governor may direct 30.05.1986 rape strict custody until Governor's pleasure, thereafter in safe custody in place as Governor may direct 30.05.1986 unlawful and indecent dealing strict custody until Governor's with child under 14 yrs pleasure, thereafter in safe custody in place as Governor may direct Over 18 years 04.12.1990 excess 0.08% MDL canc. Disq 3 mths, $300 fine 03.01.1991 no MDL MDL canc. Disq 3 mths, $300 fine 03.01.1991 speeding 106/70k zone MDL canc, disq 3 mths conc, $100 fine 03.01.1991 false name & address to policeman MDL canc, disq 3 mths conc, $100 fine 03.01.1991 using false licence, calculated to deceive MDL canc. Disq 3 mths conc, $100 fine 03.01.1991 false name $100 fine 18.03.1991 stealing (4 counts) 1-2. $50 each charge 3-4. $100 each charge 18.03.1991 no MDL MDL canc, disq 9 mths cum, 100 hrs CSO 18.03.1991 using a vehicle contrary to $50 fine conditions of yellow work order 19.06.1991 no MDL MDL canc, disq 9 mths cum, $1000 fine 26.08.1991 no MDL MDL canc, disq 9 mths cum, $2000 fine 26.08.1991 false name & address to patrolman MDL canc. disq 3 mths conc, $50 fine 26.08.1991 false name $50 fine 27.09.1991 disorderly fighting $100 fine 16.11.1993 escape legal custody (2 counts) 1. 2 mths imprisonment cum 2. 3 mths imprisonment cum 16.11.1993 false name & address MDL disq 3 mths, $150 fine 16.11.1993 receiving (3 counts) $500 fine each charge 16.11.1993 unlawful possession $500 fine 16.11.1993 no MDL MDL canc, disq 18 mths cum, 6 mths imprisonment 16.11.1993 false name & address to patrolman MDL canc, disq 3 mths conc, 1 mth imprisonment 16.11.1993 using false licence, calculated to deceive MDL canc, disq 3mths conc, $800 fine 16.11.1993 using false licence, calculated to deceive MDL canc, disq 3 mths conc, $500 fine 16.11.1993 unlicensed vehicle $250 fine 29.11.1994 no MDL MDL canc, disq 9 mths cum 3 mths imprisonment 29.11.1994 stealing a motor vehicle MDL canc, disq 3 mths conc, 3 mths imprisonment 29.11.1994 no MDL MDL canc, disq 9 mths cum, 3 mths imprisonment conc. 29.11.1994 stealing a motor vehicle MDL canc, disq 3 mths conc, 3 mths imprisonment 29.11.1994 no MDL MDL canc, disq 9 mths cum, 3 mths imprisonment conc 29.11.1994 no MDL MDL canc, disq 3 mths conc 29.11.1994 escape legal custody 1 mth imprisonment 29.11.1994 stealing 1 mth imprisonment conc. 29.11.1994 stealing a motor vehicle 1. 6 mths imprisonment conc. (3 counts) 2. 3 mths imprisonment cum. 3. 3 mths imprisonment conc. 29.11.1994 unlawful procession 3 mths imprisonment conc. 26.05.1995 amphetamine use $200 fine 26.05.1995 cannabis possess a qty $100 fine 26.05.1995 on prem/curt w/out lawful excuse $100 fine 26.05.1995 resist arrest $200 fine 26.05.1995 no MDL MDL canc, disq 2 yrs cum, 9 mths imprisonment 26.05.1995 no MDL MDL disq 2 yrs cum, 9 mths imprisonment conc. 26.05.1995 reckless driving (prescribed) MDL canc, disqu 18 mths conc, 3 mths imprisonment conc. 26.05.1995 dangerous driving (prescribed) MDL canc, disq 12 mths conc, 3 mths imprisonment conc. 26.05.1995 fail to stop when called upon MDL canc, disq 3 mths conc, $200 fine (prescribed) 13.05.1996 use forges or fraudulently altered MDL canc, disq 3 mths, $200 fine number plate 13.05.1996 no MDL MDL canc, disq 9 mths cum, $500 fine 13.05.1996 amphetamine possession $200 fine 13.05.1996 assault common $500 fine 13.05.1996 cannabis possess a qty $150 fine 27.05.1997 burglary & commit offence (habitat) 12 mths imprisonment MDL disq 6 mths 26.06.1997 stealing 3 mths imprisonment 20.03.1998 burglary & commit offence (habitat) 10 yrs imprisonment 20.03.1998 child stealing 5 yrs imprisonment conc. 20.03.1998 drugs prohibited use 1 mth imprisonment conc. 20.03.1998 no MDL MDL canc, disq 12 mths cum, 12 mths imprisonment 20.3.1998 driving under the influence MDL canc, disq 6 mths conc, $500 fine 20.03.1998 fail to stop when called upon MDL canc, disq 3 mths conc, $100 fine