Koroitamana v Commonwealth of Australia [2006] HCA 28

Koroitamana v Commonwealth of Australia [2006] HCA 28

Children born in Australia to parents who are neither Australian citizens nor permanent residents, and who are not Australian citizens themselves, are 'aliens' within the meaning of s 51(xix) of the Constitution; Parliament may validly enact laws treating such persons as 'aliens', including ss 189 and 198 of the Migration Act. The applicants' entitlement to acquire Fijian citizenship means they are not stateless, and potential statelessness does not alter their status as aliens for constitutional purposes.

Parties
Applicants: Lomani Joey Koroitamana (an infant by her next friend Sereana Naikelekele) and another; Respondents: Commonwealth of Australia and another
Jurisdiction
Australia
Judgment Date
14 June 2006
Procedural Posture
Appeal / Special Leave to Appeal and Appeal Heard Instanter
Outcome
Special leave to appeal granted; appeal dismissed with costs
Legal Topics
Meaning of 'aliens' Under Constitution S 51(xix), Children Born in Australia to Non Citizen, Non Permanent Resident Parents, Statelessness, Interpretation of Australian Citizenship Act 1948, Detention and Removal Under Migration Act 1958
Constitutional Law Citizenship Law Immigration Law Meaning of 'aliens' Under Constitution S 51(xix) Children Born in Australia to Non Citizen, Non Permanent Resident Parents Statelessness Interpretation of Australian Citizenship Act 1948 Detention and Removal Under Migration Act 1958

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Parties

Lomani Joey Koroitamana (an infant by her next friend Sereana Naikelekele) and another

Applicants

Commonwealth of Australia and another

Respondents

Procedural Posture

Appeal / Special Leave to Appeal and Appeal Heard Instanter

Legal Issues

  1. 1 Are children born in Australia to non-citizen and non-permanent resident parents 'aliens' under s 51(xix) of the Constitution?
  2. 2 Does potential statelessness affect their status as 'aliens'?
  3. 3 Does international law or treaties influence the definition of 'alien' in the Constitution?

Ratio Decidendi

Children born in Australia to parents who are neither Australian citizens nor permanent residents, and who are not Australian citizens themselves, are 'aliens' within the meaning of s 51(xix) of the Constitution; Parliament may validly enact laws treating such persons as 'aliens', including ss 189 and 198 of the Migration Act. The applicants' entitlement to acquire Fijian citizenship means they are not stateless, and potential statelessness does not alter their status as aliens for constitutional purposes.

Court Disposition

Special leave to appeal granted; appeal dismissed with costs

Orders

  • Special leave to appeal granted
  • Appeal treated as instituted and heard instanter but dismissed with costs