Recent High Court case highlights the importance of former British subjects checking their immigration and citizenship status in Australia is recognised.

On the 12th of August 2021, the Full Bench of the High Court dismissed an appeal by Frederick Chetcuti in Chetcuti v Commonwealth of Australia [2021]. This Court’s decision is of significance to people who migrated to Australia prior to the 26th of January 1949 from former British territories or colonies (such as Malta, Singapore and the United Arab Emirates).

Mr Chetcuti was born in Malta on the 8th of August 1945 and arrived in Australia on the 31st of July 1948 at the age of two. Malta was then a colony of the United Kingdom until it gained independence on the 21st of September 1964. At the time of Mr Chetcuti’s arrival in Australia, he was considered a British subject under Australia’s then migration laws.

All Australians were in fact considered British subjects prior to the 26th of January 1949, which is when the Commonwealth government enacted the Australian Citizenship Act 1948 (Cth) (the ‘Citizenship Act’) which created Australian citizenship. Mr Chetcuti therefore held the same rights as those born in Australia before this time.

Mr Chetcuti resided in Australia since his arrival but never acquired Australian citizenship. This opportunity was open to Mr Chetcuti as part of the transitional provisions under the Citizenship Act because of Malta’s status as a British territory. This opportunity was removed by a legislative amendment in 1973, however British subjects already in Australia still retained privileges not afforded to other migrants. Mr Chetcuti’s legal status again changed on the 1st of September 1994 when he was automatically granted an Absorbed Person Visa as a result of an amendment to the Migration Act 1958 (Cth).

In 1993, Mr Chetcuti was convicted of murdering his ex-wife, Gloria Jean Chetcuti, and sentenced to 24 years in prison. Ms Chetcuti’s body was discovered in the Parramatta River weighed down with rocks. Mr Chetcuti was released from prison in 2011 but returned after being convicted of assault occasioning actual bodily harm.

Mr Chetcuti’s Absorbed Person Visa was cancelled by the Minister for Immigration and Border Protection prior to his second release from prison due to his criminal history. He was then placed in immigration detention following his release from prison in 2017 and was scheduled to be deported to Malta from Australia. Mr Chetcuti has not returned to Malta since he was a teenager.

The Commonwealth has the power to enact laws concerning citizens of foreign countries who are not citizens of Australia under s 51(xix) of the Constitution. This is commonly referred to as the ‘Aliens Power’ and allows the Commonwealth government to order the deportation of aliens.

Mr Chetcuti challenged the Minister’s cancellation of his visa before Justice Nettle in the High Court of Australia under the Court’s original jurisdiction to hear matters concerning the Constitution. Mr Chetcuti argued that his detention and removal from Australia was unlawful as he was not within the reach of the Aliens Power because he should not be considered an alien. Rather, Mr Chetcuti claimed that he should be considered a non-alien as he arrived in Australia as a British subject prior to the introduction of Australian citizenship. Mr Chetcuti essentially claimed that he should fall into a legal loophole, whereby he was outside the reach of the Aliens Power despite not holding Australian citizenship as he did not meet the traditional definition of an alien.  

Justice Nettle ruled against Mr Chetcuti and held that he was an alien and therefore able to be detained and deported by the Commonwealth government.

Mr Chetcuti then appealed to the Full Bench of the High Court. The Full Bench found in favour of the Commonwealth government by a majority of 6-1 and held that Mr Chetcuti was indeed an alien and therefore within the scope of the Aliens Power.

Chief Justice Kiefel and Justices Gageler, Keane and Gleeson handed down a joint judgement. They held that it was within the Commonwealth government’s authority under the Aliens Power to create Australian citizenship and that while Mr Chetcuti was not an alien when he arrived in Australia, he became one after the 26th of January 1949 when the Citizenship Act came into force.  

Many people who arrived in Australia prior to the 26th of January 1949 and who have continued to reside in Australia may hold an automatic Absorbed Persons Visa without realising it. Most holders of this category of visa need to obtain a re-entry visa to be able to re-enter Australia if they leave, and can be subject to deportation should they commit a serious offence.

Our experienced team of solicitors are available for an obligation free discussion if you are unsure of your immigration status and would like guidance through the process in obtaining Australian citizenship or permanent residency.

*Disclaimer: This is intended as general information only and not to be construed as legal advice. The above information is subject to changes over time. You should always seek professional advice beforetaking any course of action.*