Koroitamana v Commonwealth of Australia [2005] FCAFC 61

Koroitamana v Commonwealth of Australia [2005] FCAFC 61

Because at Federation there was no fixed legal rule making birth in Australia necessarily confer non-alien status, and because persons such as the applicants were not shown to be outside the constitutional concept of aliens, Parliament had authority under s 51(xix) to legislate for their non-citizen and alien status. The applicants were therefore aliens within the meaning of s 51(xix) of the Constitution.

Jurisdiction
Australia
Judgment Date
15 April 2005
Procedural Posture
A Case Stated by a Single Judge of the Federal Court of Australia / Full Court Consideration of Reserved Questions
Outcome
The first reserved question was answered Yes; the second and third reserved questions were not applicable.
Legal Topics
['aliens Power Under S. 51(xix) of the Constitution' 'australian Born Non Citizen Children' 'application of Migration Act 1958 (cth) Removal and Detention Provisions']
['constitutional Law' 'migration Law' 'citizenship and Alienage'] ['aliens Power Under S. 51(xix) of the Constitution' 'australian Born Non Citizen Children' 'application of Migration Act 1958 (cth) Removal and Detention Provisions']

Case Brief

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Procedural Posture

A Case Stated by a Single Judge of the Federal Court of Australia / Full Court Consideration of Reserved Questions

Legal Issues

  1. 1 ['Whether the applicants are "aliens" within the meaning of s. 51(xix) of the Constitution.' 'If the applicants are not aliens, whether s. 198 of the Migration Act 1958 (Cth) is capable of valid application to them.' 'If the applicants are not aliens, whether ss. 189 and 196 of the Migration Act 1958 (Cth) are capable of valid application to them.']

Ratio Decidendi

Because at Federation there was no fixed legal rule making birth in Australia necessarily confer non-alien status, and because persons such as the applicants were not shown to be outside the constitutional concept of aliens, Parliament had authority under s 51(xix) to legislate for their non-citizen and alien status. The applicants were therefore aliens within the meaning of s 51(xix) of the Constitution.

Court Disposition

The first reserved question was answered Yes; the second and third reserved questions were not applicable.

Orders

  • ['The following questions reserved by the case stated by Emmett J on 11 February 2005 be answered as follows: (Q1) Are the applicants "aliens" within the meaning of s.51 (xix) of the Constitution? (A1) Yes. (Q2) If the answer to (1) is "No", is s. 198 of the Migration Act 1958 (Cth) capable of valid application to...