Background
The applicant, QHXW, was born in New Zealand in 1977. At the time of his birth, both of his parents were Australian-born citizens. He acquired New Zealand citizenship at birth and moved to Australia at the age of three in 1980, where he has lived ever since. Despite his parentage and long-term residence, the applicant never formally registered or applied for Australian citizenship.
After being convicted of serious criminal offences and sentenced to more than 12 months in prison, the applicant’s visa was mandatorily cancelled under the Migration Act 1958 (Cth). The applicant challenged the cancellation, arguing that the Migration Act did not validly apply to him. He contended that as the child of two Australian citizens, he could not be considered an “alien” within the meaning of section 51(xix) of the Australian Constitution, which gives Parliament the power to make laws with respect to “Naturalization and aliens.”
The Court’s Holding
The Federal Court of Australia dismissed the application, holding that the applicant was an “alien” for constitutional purposes and that the Migration Act validly applied to him. The court affirmed that Parliament has the power to create and define Australian citizenship and to determine who has the legal status of an alien. While this power is not unlimited—Parliament cannot classify someone as an alien who “could not possibly answer the description”—the applicant did not fall into that protected category.
Justice Jackson reasoned that alienage is fundamentally about the lack of a “formal legal relationship with the community or body politic.” This formal relationship is established through the legal status of citizenship. The Australian Parliament has chosen to legislate in a way that requires a formal act to acquire citizenship for those born overseas, even to Australian parents.
Because the applicant had never taken the necessary steps to become an Australian citizen, he remained a non-citizen. The court found that his birth to Australian parents and his long residence in the country did not, by themselves, create the formal legal relationship of citizenship. Therefore, it was within Parliament’s constitutional power to treat him as a non-citizen and, consequently, as an alien subject to Australia’s immigration laws, including the provisions for visa cancellation and deportation.
Key Takeaways
- Under Australian constitutional law, a person born overseas to Australian parents is not automatically a citizen and can be legally classified as an “alien” if they have not formally acquired citizenship.
- “Alienage” is defined by a person’s formal legal status (i.e., their citizenship status), rather than by factors like parentage, length of residence, or social connection to Australia.
- Parliament has broad power to set the criteria for citizenship and to attach legal consequences, such as detention and removal, to the status of being a non-citizen.
Why It Matters
This decision reinforces the critical importance of formal citizenship status in Australian law. It clarifies that even individuals with the strongest possible blood ties to Australia are not exempt from immigration laws if they have not completed the legal process to become a citizen. The ruling highlights a strict interpretation of the “aliens power,” confirming that Parliament can legislate to remove non-citizens, regardless of their parentage or lifelong connection to the country, underscoring the distinction between being eligible for citizenship and actually possessing it.