K
oda v Minister for Immigration [2021] FCAFC 82 is an interesting Full Court case about the Citizenship Act.
Consider the following facts:
- the Applicant was born in Albania in 1982;
- Neither of his birth parents were Australian citizens;
- In 1995 he was adopted (in Albania under Albanian law) by an Australian citizen father; and
- his adoptive father had become an Australian citizen (by conferral) in 1955.
Now consider these two propositions of law:
- The legal effect of an adoption (both under Australian law and Albanian law) is that an adopted child is treated as if they were born to their adoptive parents; and
- Section 16(2)(a) of the Citizenship Act says you are eligible to become an Australian citizen if ‘a parent of the person was an Australian citizen at the time of the birth’.
If you thought (as I did) this meant the Applicant was entitled to citizenship then, we would have fallen into the same error made by the AAT. The Minister appealed the AAT decision and the matter eventually found its way to the Full Federal Court.
The Full Court found that section 16(2)(a) required focus on the factual situation at birth (and not on a “deemed” position). The Applicant’s adoptive father was not present at his birth and he didn’t commence any relationship with either the Applicant (or his mother) until some years later. Consequently, there was no entitlement to citizenship.
The Court clearly recognised the harshness of its decision (but as we all know, courts can only apply the law):
[40] Thus, children adopted in Australia before 1984 have no such pathway to citizenship. [There were 1984 amendments recognising adopted children]
[41] 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.
Creative commons acknowledgment for the photograph.
