Alkiswani v Minister for Immigration and Multicultural and Indigenous Affairs
[2004] FCA 1314
•12 OCTOBER 2004
FEDERAL COURT OF AUSTRALIA
Alkiswani v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 1314
CITIZENSHIP – revocation of certificate of citizenship – applicant holds a protection visa on the basis that he was a refugee that suffered imprisonment and torture in Jordan – altercation with street preacher resulting in criminal charges – grant of certificate of citizenship occurred before commencement of s 14B of the Australian Citizenship Act 1948 (Cth) –purported exercise of the power conferred by s 14B of the Australian Citizenship Act 1948 (Cth) – whether there was an implied power to revoke the certificate of citizenship arising from the tenor and construction of the Australian Citizenship Act 1948 (Cth) as a whole – whether there was an implied power to revoke the certificate of citizenship arising from s 33(3) of the Acts Interpretation Act 1901 (Cth) – if such an implied power exists, whether the discretion to exercise the power was considered by the decision maker
Administrative Appeals Tribunal Act 1975 (Cth) s 44
Australian Citizenship Act 1948 (Cth) ss 13 and 14
Acts Interpretation Act 1901 (Cth) s 33(3)Leung v Minister for Immigration and Multicultural Affairs (1997) 150 ALR 76 referred to
AYMAN ALKISWANI v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
No Q 206 of 2003
SPENDER J
BRISBANE
12 OCTOBER 2004
IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY
Q 206 OF 2003
ON APPEAL FROM THE ADMINISTRATIVE APPEALS TRIBUNAL
BETWEEN:
AYMAN ALKISWANI
APPLICANTAND:
MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
RESPONDENTJUDGE:
SPENDER J
DATE OF ORDER:
12 OCTOBER 2004
WHERE MADE:
BRISBANE
THE COURT ORDERS THAT:
(1) The decision of the Tribunal of 26 November 2003 be set aside.
(2) The decision of the delegate of the Minister of 26 July 2002 to revoke the grant of citizenship to Mr Alkiswani be set aside.
(3) The respondent pay the applicant’s costs of and incidental to this appeal, to be taxed if not agreed.
Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY
Q 206 OF 2003
ON APPEAL FROM THE ADMINISTRATIVE APPEALS TRIBUNAL
BETWEEN:
AYMAN ALKISWANI
APPLICANTAND:
MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
RESPONDENT
JUDGE:
SPENDER J
DATE:
12 OCTOBER 2004
PLACE:
BRISBANE
REASONS FOR JUDGMENT
This is an appeal pursuant to the provisions of s 44 of the Administrative Appeals Tribunal Act 1975 (Cth) from a decision of the Administrative Appeals Tribunal (“the Tribunal”) given on 26 November 2003 at Brisbane. The Tribunal affirmed a decision made by a delegate of the respondent Minister on 26 July 2002 to revoke the grant of a certificate of Australian citizenship to Mr Alkiswani (“the applicant”).
The decision of the Tribunal in terms was:
‘The Tribunal affirms the decision under review to revoke the approval for the grant of a certificate of Australian citizenship to Ayman Alkiswani.’
These terms imprecisely refer to the decision that was in fact made by the Minister’s delegate, and mirror the confusion and misunderstanding that attended that earlier decision.
Section 13 of the Australian Citizenship Act 1948 (Cth) (“the Citizenship Act”) provides for the grant of a certificate of Australian citizenship to a person who applies for it, and the circumstances in which such a certificate may be granted. The applicant’s application for the grant of a certificate of Australian citizenship was approved on 30 October 2001, and he was due to make the pledge of commitment at a public citizenship ceremony on 14 March 2002. However, on 7 March 2002 the applicant had an altercation with a person who was preaching religion in a street near his house. He went to his house, obtained some inflammable liquid, went back to the preacher, poured the lighter fluid on the person of the preacher and set him on fire. The applicant was charged with a number of criminal offences, and before he made the pledge of commitment the respondent withdrew the invitation to the applicant to attend that ceremony and deferred the matter until the police investigation and any criminal charges arising therefrom were sorted out.
On 9 July 2002 the respondent received advice from the Queensland Police Service that the charges against the applicant had been listed for mention in the Brisbane Magistrates Court on 25 October 2002, and that a trial was not likely for some time after that.
On 25 July 2002, an officer of the Department of Immigration and Multicultural and Indigenous Affairs (“the Department”) recommended ‘the revocation of grant of certificate of Australian citizenship of Ayman Mohammod Alkiswani.’ The two-page document supporting that recommendation referred to the background of the recommendation:
‘The applicant arrived in Australian on 18 August 1997 and was granted Permanent Residence on grounds of Protection (AZ 866) on 15 June 1998. He applied for grant of Australian Citizenship on 10 May 2001. The applicant was granted Citizenship [sic] on 30 October 2001, however, conferral of citizenship was deferred on account of the applicant being arrested on 7 March 2002 and charged with intent to unlawfully kill another human being. As the maximum 12 months deferral period has passed, a decision is required regarding the revocation of grant of certificate of Australian citizenship.’
The reference to the passing of “the maximum 12 months deferral period” is based on a misunderstanding of the Citizenship Act. Sections 14 and 14A of the Citizenship Act provide for circumstances where the Minister may defer consideration of an application for the grant of a certificate for periods that do not exceed twelve months. The applicant had already been granted a certificate of Australian citizenship, on 30 October 2001. Those sections do not “require a decision regarding the revocation of (a) grant of certificate.” Those sections have no application in the present circumstances.
Before referring to the officer’s assessment in the recommendation document, it is useful to set out the relevant provisions of s 13 and s 14B of the Citizenship Act:
‘13 Grant of Australian citizenship
(1) Subject to this section, the Minister may, in the Minister’s discretion, upon application in accordance with the approved form, grant a certificate of Australian citizenship to a person who satisfies the Minister that:
(a)the person is a permanent resident;
(b)the person has attained the age of 18 years;
(c)the person understands the nature of the application;
(d)the person has been present in Australia as a permanent resident for a period of, or for periods amounting in the aggregate to, not less than one year during the period of 2 years immediately preceding the date of the furnishing of the application;
(e)the person has been present in Australia as a permanent resident for a period of, or for periods amounting in the aggregate to, not less than 2 years during the period of 5 years immediately preceding the date of the furnishing of the application;
(f)the person is of good character;
(g)the person possesses a basic knowledge of the English language;
(h)the person has an adequate knowledge of the responsibilities and privileges of Australian citizenship; and
(i)if granted a certificate of Australian citizenship, the person is likely to reside, or to continue to reside, in Australia, or to maintain a close and continuing association with Australia.
…
(2) Where, by reason of a physical or mental incapacity, not being a temporary incapacity, an applicant under subsection (1) is not capable of understanding the nature of that application, paragraphs (1)(c), (g) and (h) do not apply in relation to that person.
…
(4) For the purposes of the application of subsection (1) in relation to an applicant for the grant of a certificate of Australian citizenship:
(a)the Minister shall not take into account, as a period during which the applicant has been present in Australia as a permanent resident, any period during which the applicant has been confined in a prison or has been confined in a psychiatric institution by order of a court made in connection with criminal proceedings against the person;
…
(11)The Minister shall not grant a certificate of Australian citizenship to a person under subsection (1), (9), (9B) or (9E):
(a)during any period during which proceedings for an offence against a law of the Commonwealth, a State or a Territory (including proceedings by way of appeal or review) are pending in relation to the person; or
(b)during any period during which the person is confined to a prison in Australia; or
(c)during the period of 2 years after the expiration of any period during which the person has been confined in a prison in Australia by reason of the imposition on the person of:
(i) a sentence of death that has been commuted to a sentence of imprisonment; or
(ii) a sentence of imprisonment for life or for a period of not less than 12 months;
…
(f)during any period during which the person is confined in a psychiatric institution by order of a court made in connection with proceedings of the kind referred to in paragraph (a) in relation to the person;
…’
It should be noted that the effect of s 13(11) of the Citizenship Act is to deny to the Minister, during the periods specified in the subsection, the power to grant a certificate of citizenship.
Section 14 of the Citizenship Act confers a discretion on the Minister to defer consideration of an application for a certificate of citizenship.
Section 14B, which deals with revocation of grant of a certificate of Australian citizenship, relevantly provides:
‘(1) If:
(a) a certificate of Australian citizenship has been granted to a person under this Division after the commencement of this section; and
(b) the person has not become an Australian citizen under section 15; and
(c) either:
(i)if it were assumed that the certificate had not been granted and the person were to make a fresh application for the certificate, the Minister would be required to make a decision under section 13 refusing the application; or
(ii)the person has failed to make a pledge of commitment within 12 months after the day on which the person was notified of the Minister’s decision under section 13 to grant the certificate, and the person does not have an acceptable reason for the failure;
the Minister may, in the Minister’s discretion, revoke the grant of the certificate.
(2)For the purposes of the application of subparagraph (1)(c)(i) to a person to whom a certificate of Australian citizenship has been granted as a result of an application under subsection 13(1)(the actual application):
(a) paragraphs 13(1)(d) and (e) and subsection 13(4) apply as if the date of the furnishing of the fresh application were the same as the date of the furnishing of the actual application; and
(b) the remaining provisions of section 13 apply as if the fresh application had been made on the day before the day on which the Minister makes a decision under subsection (1) of this section whether to revoke the grant of the certificate.
(3)For the purposes of the application of subparagraph (1)(c)(i) to a person to whom a certificate of Australian citizenship has been granted as a result of an application under subsection 13(9)(the actual application):
(a) paragraph 13(9)(b) applies as if the fresh application were made on the same day as the actual application; and
(b) the remaining provisions of section 13 apply as if the fresh application had been made on the day before the day on which the Minister makes a decision under subsection (1) of this section whether to revoke the grant of the certificate.
(4)For the purposes of subparagraph (1)(c)(ii), a reason is an acceptable reason if, and only if, the reason is declared by the regulations to be an acceptable reason for the purposes of this section.
(5)If the Minister revokes the grant of a certificate, the Minister must give the person concerned a written notice of the revocation. The notice may be served personally, by post or by an electronic communication.
(6)If the Minister revokes the grant of a certificate (whether or not notice has been given under subsection (5)), the person concerned is taken not to be a person to whom a certificate of Australian citizenship has been granted under this Division.’ (Emphasis in the original)
It is to be noted that the Ministerial discretion to revoke the grant of a certificate pursuant to s 14B has, as one of its conditions, that a certificate of Australian citizenship has been granted to the person under Division 2 of the Citizenship Act ‘after the commencement of this section’.
Since the certificate of Australian citizenship had been granted to the applicant on 30 October 2001, and the section 14B commenced on 1 July 2002, there was, and is, no power in the Minister (or his delegate) under s 14B of the Citizenship Act to revoke the grant of the certificate to the applicant.
Under the heading “Assessment”, the officer of the Department who on 25 July 2002 recommended revocation of the grant of the certificate to the applicant said:
‘Under current policy the Minister has directed that very careful consideration should be given to the issue of whether an applicant is of good character. There are two character-related tests for applications under Section 13 of the Australian Citizenship Act 1948:
· Subsection 13(11) imposes a number of bars on the grant of citizenship in circumstances where a person may not be considered to be of good character; and
· Subsection 13(1)(f) imposes a general good character requirement.
Section 13(1) of the Act states that the Minister may, in the Minister’s discretion, upon application in accordance with the approved form, grant a certificate of Australian citizenship to a person who satisfies the Minister that:
(f)the person is of good character.
Section 13(11) states that the Minister shall not grant a certificate of Australian citizenship to a person under subsection (1), (9), (9B) or (9E):
(a)during any period during which proceedings for an offence against a law of the Commonwealth, a State or a Territory (including proceedings by way of appeal or review) are pending in relation to the person;
Given the serious nature of the offence for which Mr Alkiswani has been charged, in addition to the fact that proceedings for the offence against a law of the Commonwealth are pending in relation to him, if he had not been granted a certificate of Australian citizenship and were required to make a fresh application for a certificate post 7 March 2002, the Minister would be required to make a decision under Section 13 refusing the application.
This position is in accordance with Section 14B (Revocation of grant of certificate of Australian citizenship before conferral of citizenship) of the Australian Citizenship Act 1948, which states:
(1) If:
(a)a certificate of Australian citizenship has been granted to a person under this Division after the commencement of this section; and
(b)the person has not become an Australian citizen under section 15; and
(c)either:
(i)if it were assumed that the certificate had not been granted and the person were to make a fresh application for the certificate, the Minister would be required to make a decision under section 13 refusing the application;’
The officer plainly misunderstood that s 13(11) is relevant only to the grant of a certificate, and since the applicant had been granted the certificate, it had no application to him. Further, the officer overlooked that s 14B applied only if a certificate had been granted after 1 July 2002, the date of commencement of the section.
The officer then, under the heading “Recommendation”, said:
‘Based on the available information and my assessment above, I recommend the revocation of grant of certificate of Australian citizenship of Ayman Mohammod Alkiswani.’
Mr G. Heath, the delegate of the Minister who on 26 July 2002 made the decision “to revoke citizenship” in this case, noted on that recommendation:
‘I agree with the assessment above & find that the applicant is barred from the grant of a certificate under Section 13(11), and I therefore have decided to revoke the grant of citizenship [sic] to him.’
As expressed, the decision the subject of this appeal was made for the reason that the applicant was ‘barred from the grant of citizenship under section 13(11)’.
On 26 July 2002 the State Director of the Department wrote to Mr Alkiswani and said:
‘As a reply to my letter has not been received, a decision has been made to revoke the approval of your application [sic] and thereby refuse your application for the grant of Australian citizenship [sic] under Section 13 of the Australian Citizenship Act 1948.’
In the Statement of Reasons by Mr Heath, the delegate referred to the request from the Tribunal ‘for a statement of reasons for my decision of 26 July 2002 to revoke the grant of Australian Citizenship [sic] to Ayman Alkiswani’. Under a heading “Findings on Material Questions of Fact”, the delegate reported:
‘… Mr Alkiswani was assessed by a delegate of the Minister as meeting the requirements of Section 13(1), including the requirements of Section 13(1)(f), and he was granted a certificate of Australian citizenship.
…
On 27 July 2002, I revoked the grant of Australian citizenship [sic] to Mr Alkiswani under the provisions of Section 14B of the Act.’Under the heading “Evidence on which Findings were Based”, the delegate said:
‘Mr Alkiswani was granted a certificate of Australian citizenship on 30 October 2001.
If it were assumed that the certificate had not been granted and Mr Alkiswani were to make a fresh application for the certificate, the Minister would have been required to make a decision under section 13(11) refusing the application as there were charges pending in relation to Mr Alkiswani.’
The delegate set out the provisions of ss 13(11)(a) and 13(11)(f), and continued:
‘The power to defer a decision to revoke the grant of a certificate of Australian citizenship was introduced on 1 July 2002 and was not available at the time of the Department becoming aware of the charges pending against Mr Alkiswani, and as he was granted the certificate prior to 1 July 2002.
As there were charges pending against Mr Alkiswani and as he would not have met the requirements of Section 13(11), on 27 July 2002 I revoked the grant of the certificate of Australian citizenship to Mr Alkiswani.
However, in September 2002, and after Mr Alkiswani had applied for review with the Administrative Appeals Tribunal, I became aware that the power to revoke the grant of Australian citizenship to Mr Alkiswani was not available to me as the provisions of Section 14B only apply to persons granted certificates of Australian citizenship after 1 July 2002.’
As these reasons candidly acknowledge, there was no power to revoke the grant of the certificate to the applicant, at least under s 14B of the Act. The reasons are not in fact so qualified. The delegate stated ‘the power to revoke the grant of Australian citizenship to Mr Alkiswani was not available to me …’.
Moreover, while the reasons correctly recognise the absence of a power to revoke under s 14B where the grant was before 1 July 2002, the reasons illustrate a continuing misunderstanding of the legislative changes introduced on 1 July 2002. It is simply not correct to state ‘[t]he power to defer a decision to revoke the grant of a certificate of Australian citizenship was introduced on 1 July 2002 …’. Section 14 of the Act is concerned with the circumstance when an application for the grant of a certificate has not been “completely considered”, and permits deferral of consideration of the application. Section 14A also is concerned with circumstances where the Minister might defer consideration of an application for grant. Section 14B confers a power, in respect of the grant of certificate of citizenship after 1 July 2002, to revoke that grant in the circumstances there specified. Section 14C permits the deferral by the Minister of conferral of Australian citizenship on a person who has been granted a certificate of Australian citizenship after 1 July 2002.
No provision of the Act deals with, or confers, a ‘power to defer a decision to revoke the grant of a certificate of Australian citizenship’, as stated in the reasons of the delegate.
It will be noted that the various documents sometimes refer to the revocation of ‘the grant of Australian citizenship’, to the ‘the grant of the certificate of Australian citizenship’, and in the Tribunal’s formal decision ‘the decision under review to revoke the approval for the grant of a certificate of Australian citizenship’ to Mr Alkiswani.
Notwithstanding the misleading and inaccurate descriptions of what was in fact decided by the delegate of the Minister, and which was affirmed by the Tribunal, I take it that the decision under review by the Tribunal was the decision described in the Statement of Reasons by the delegate of the Minister as ‘… on 27 July 2002, I revoked the grant of the certificate of Australian citizenship to Mr Alkiswani’.
I take it further from the Statement of Reasons that the reason for the revocation of the grant of the certificate of Australian citizenship was ‘there were charges pending against Mr Alkiswani and … he would not have met the requirements of Section 13(11)’. The date “27 July 2002” ought properly to refer to 26 July 2002, as acknowledged in the first paragraph of the Statement of Reasons, but the date 27 July 2002 appears in the part under the heading “Findings on Material Questions of Fact” and also in the part under the heading “Evidence on which Findings were Based”.
I take the last paragraph of the delegate’s reasons as being an acknowledgement that, at least in his opinion, at the time he made the decision to revoke the grant of the certificate of Australian citizenship, he did not have the power to revoke the grant of the certificate, stating that ‘the provisions of Section 14B only apply to persons granted certificates of Australian citizenship after 1 July 2002.’
The Tribunal, in its reasons recorded the contents of the Queensland Police Brief concerning the altercation with the street preacher that had occurred on 7 March 2002:
‘The complainant in this instance is a 50 year old male. On the morning of Thursday the 7th of March 2002 the complainant was standing on the corner of Boundary and Vulture Streets, West End. The complainant is a preacher and at this time was preaching at that intersection. At approximately 9.50 am the complainant was accosted by a male person, the defendant. The defendant has argued with the complainant and assaulted him by shouldering him causing him to fall against a shop window.
The defendant has then left and returned approximately 10 minutes later. On this occasion the defendant was in possession of a tin of lighter fluid and a box of matches. The defendant has then poured lighter fluid over the head of the complainant. The fluid has run off the complainants head and onto his shoulders. At this time the complainant has stood still as he was of the belief that the defendant was pouring water over his head, not lighter fluid. The defendant has then struck one match and thrown it at the complainant however it filed to ignite. The defendant has then struck a second match which did ignite and threw it at the complainant. The match hit the complainant in the head and immediately ignited the lighter fluid. The complainants head and shoulders have been engulfed in flame. Passers by have then come to the aid of the complainant and extinguished the fire. Other passers by have then detained the defendant. Police were then called and a complaint was made. The complainant at no time gave any person permission or authority to assault him in any way. He did not provoke or assault the defendant in any way. The complainant was conveyed to Hospital as a result of this assault where he was treated for burns to his head, neck and shoulders. The burns to the complainant were not severe and he was released from hospital the same day.’
The Tribunal noted that Mr Alkiswani was charged with attempted murder, doing an act intended to maim or disfigure, and assault.
The Tribunal noted a newspaper article published on 9 March 2001:
‘ “Defendant ‘mentally unfit’
A MAN accused of setting a street preacher on fire this week was deemed mentally unfit to appear before the Brisbane Magistrate’s Court yesterday.
Ayman Mohammod Alkiswani, 36, was charged on Thursday with attempted murder, assault, and with committing acts intended to maim or disfigure. Alkiswani has been accused of dousing street preacher Paul Sheehan with lighter fluid and setting him on fire on the corner of Vulture and Boundary Streets, West End. Mr Sheehan received minor burns.
The court was told Alkiswani was not mentally fit.
He was taken to the John Oxley Memorial Hospital for treatment where he will stay until a court appearance on June 6.’
The police brief indicates that the applicant poured approximately half a 500 ml tin of lighter fluid over the head and shoulders of the street preacher.
On 2 August 2002, after the purported decision to revoke the grant of the certificate to the applicant, a psychiatrist, Dr Cassandra Griffin, reported to the Department:
‘Mr Alkiswani is a patient under my care and he brought to my attention some correspondence from your department dated 26 July 2002 with the above reference number. I am providing this letter on his behalf in response to that correspondence and after a telephone conversation this week with Miriam Masini of the ‘phone unit’ at your Sydney office.
Mr Alkiswani is detained currently in an inpatient psychiatric facility under the Mental Health Act 2000 as a classified patient. You will be aware that he has been charged with a number of serious offences for which legal proceedings have been adjourned pending the outcome of their reference to the Mental Health Court expected to take place either late this year or early next year. It is possible that he will be granted a defence of unsoundness of mind in relation to those matters.
Mr Alkiswani has a mental illness for which he was receiving no treatment at the time of the offences. He had been very unwell for many months preceding his offending and on his arrest was transferred to our facility for treatment. He has shown a significant improvement over the past few months and is now free of any major symptoms of mental illness. He is entirely cooperative with all aspects of his care and the prognosis for his mental illness is promising.
I am aware that Mr Alkiswani has made an application for the granting of Australian citizenship some time in the past and that your department had approved that application last year. Your letter of 26 July 2002 refers to a decision made by your department to revoke that approval of his application and refuse his application. In that same letter your department supports that move by the lack of any reply from Mr Alkiswani to your department to apparent previous correspondence in the early months of this year.
I am writing to inform you that Mr Alkiswani was, in my opinion, over a matter of many months through late 2001 and early 2002, on account of his mental state, not competent to reason about this matter with any degree of consideration and certainly not able to adequately instruct your department on this matter. He is now sufficiently well to be more than able to do so and would like to resume contact with your department about the matter. He is understandably eager for you to allow his application for citizenship to stand.’
On 6 December 2002 the Mental Health Court decided that:
(i)The applicant was of unsound mind when the alleged offences of doing an act with intent to maim or disfigure, assault and possessing and acquiring a restricted item were committed and ordered that the proceedings be discontinued against him.
(ii)There was reasonable doubt that the applicant committed the alleged offence of attempted murder. The applicant was fit for trial and that the proceedings be continued.
(iii)A forensic order be given detaining the applicant for involuntary treatment in John Oxley Memorial Hospital.
On 6 February 2003, the Director of Public Prosecutions withdrew the charge of attempted murder. There are no court proceedings of any kind pending in relation to the applicant.
A psychiatrist, Dr Geoffrey Rees, provided a psychiatric report on 4 April 2003 concerning the applicant, who was and is the holder of a Protection Visa (866) on the basis that he was a refugee who had suffered imprisonment and torture in Jordan. Dr Rees’ report stated:
‘I write to you in my capacity as Mr Alkiswani’s treating psychiatrist at The Park Psychiatric Facility, Wacol, where he is currently an inpatient.
As you appreciate Mr Alkiswani has a history of Bipolar Affective Disorder predating his arrival in Australia as a refugee. As a result of his torture and imprisonment in Jordan, this man additionally has some symptoms consistent with a diagnosis of Post Traumatic Stress Disorder.
Despite all of these exigencies this man is showing a remarkably good effort at maximising his rehabilitation opportunity and resources.
Current Mental State
Mr Alkiswani currently presents as clean, casually dressed man of Middle Eastern appearance. He is co-operative with interview, maintains good eye contact and rapport is easily established. This is no psychomotor agitation or retardation.
Mr Alkiswani’s speech is normal in rate, rhythm and volume, and he has an accent. His mood is not depressed or elevated, and his affect is reactive and appropriate.’
It is relevant to note that the applicant’s treating psychiatrist expressed the view that the mental condition of the applicant is partly the result of his imprisonment and torture in Jordan.
The Tribunal, in par 10 of its reasons said, correctly in my view:
‘The question raised is whether the Respondent, having granted a certificate of Australian citizenship under s.13(1) of the Act, had the power to revoke that grant, and, if he did, whether he should have.’
The Tribunal noted:
‘It has been conceded on behalf of the Respondent that when the delegate revoked the grant on 26 July 2002, he erred when he purported to derive his power to revoke the grant from section 14B of the Act. That section only applied to certificates of Australian citizenship granted after 1 July 2002. The grant to Mr Alkiswani was made on 30 October 2001.’
Nonetheless, it was contended on behalf of the respondent that, although the Citizenship Act did not contain an express power to revoke the grant of a certificate of Australian citizenship, there was power to revoke the grant, either on the basis of an implied power taking tenor and construction of the Act as a whole, or that power to revoke the grant of an instrument flowed from the provisions of s 33(3) of the Acts Interpretation Act 1901 (Cth) which provides:
‘Where an Act confers a power to make, grant or issue any instrument (including rules, regulations or by-laws) the power shall, unless the contrary intention appears, be construed as including a power exercisable in the like manner and subject to the like conditions (if any) to repeal, rescind, revoke, amend, or vary any such instrument.’
The applicant contended that there was no power in the respondent to revoke the grant of the certificate of citizenship, or alternatively, if there was such a power, no attention was given to the discretion to exercise the power, either by the delegate or by the Tribunal, and the basis for the exercise of the discretion by the delegate was erroneous.
It was argued for the respondent that:
‘… although the Act did not contain an express power to revoke the grant of a certificate of Australian citizenship, there was power to revoke the grant on either of two bases:
(a) An implied power – taking the tenor and construction of the Act as a whole; and
(b) Power to revoke a grant of an instrument pursuant to s.33(3) of the Acts Interpretation Act 1901 which provides:
“33(3) Where an Act confers a power to make, grant or issue any instrument (including rules, regulations or by-laws) the power shall, unless the contrary intention appears, be construed as including a power exercisable in the like manner and subject to the like conditions (if any) to repeal, rescind, revoke, amend, or vary any such instrument”.’
The Tribunal referred to some observations of Finkelstein J and of Heerey J in Leung v Minister for Immigration and Multicultural Affairs (1997) 150 ALR 76 (“Leung”). After citing those observations, the Tribunal tersely expressed its conclusion as follows:
‘15.The Tribunal is satisfied that a certificate of Australian citizenship would not have been granted to Mr. Alkiswani after 7 March 2002, till the present day.
16.The Tribunal adopts the observations of the Full Federal Court in Leung, and finds that in the case of Mr. Alkiswani, there were grounds that justified the delegate deciding that in the period prior to the scheduled pledge ceremony Mr. Alkiswani did not satisfy the provisions of s.13 of the Act and he was not entitled to a certificate of Australian citizenship. The correct and preferable decision was to revoke the grant.
17.The decision under review is affirmed.’
Paragraph 15 of the Tribunal’s reasons is conclusionary, and provides no illumination for the basis of the conclusion there expressed. More importantly, whether the applicant would, or would not, have been granted a certificate of Australian citizenship has no relevance to any question properly before the Tribunal. The decision to revoke the grant was made on a legally erroneous basis, as the respondent admits. The question agitated before the Tribunal was whether there was a power in the Minister to revoke. The further question, if there was power, was whether in all the circumstances before the Tribunal, the correct or preferable decision by the Tribunal was to revoke the grant.
One might infer that the Tribunal in some way accepted that there was a power in the delegate to revoke the grant, but whether it was on one or other or both of the bases contended for by the Minister does not appear. In my opinion, there is power pursuant to s 33(3) of the Acts Interpretation Act 1901 (Cth) to revoke the grant of a certificate of Australian citizenship.
The Tribunal stands in the shoes of the decision maker, and the task for it was whether the power to revoke should have been exercised favourably or unfavourably to Mr Alkiswani.
The Tribunal did not do this. The Tribunal’s reasoning was expressed on the basis that ‘… there were grounds that justified the delegate deciding … he was not entitled to a certificate of Australian citizenship.’ The function of the Tribunal is not to determine whether there were grounds which justified a decision maker in reaching the decision which he made, nor is it the function of the Tribunal to decide that ‘[t]he correct and preferable decision was to revoke the grant.’ (Emphasis added.)
The function of the Tribunal was to decide whether, on the circumstances before it, the correct or preferable decision was to revoke the grant or not to revoke the grant. In my opinion, the Tribunal never considered the exercise of the discretion which was conferred to it.
There is and was no power in the Tribunal to revoke the grant of a certificate of Australian citizenship to Mr Alkiswani pursuant to s 14B of the Act. Even if there was such a power, it was a discretionary power which was only triggered on condition that if the person were to make a fresh application the Minister would be required to make a decision under s 13 refusing the application. The time to consider whether the Minister would be required to refuse such a fresh application is the time when the decision on whether to revoke the grant of the certificate is being made. None of the circumstances referred to in s 13(11) would be or are relevant in the circumstances of the present case.
If it be accepted that the power to revoke the certificate can only be exercised if a statutory criterion for the grant of the certificate did not in fact exist, (or, perhaps, does not now exist), the only possible argument that might be available is that in all the circumstances it was incontrovertible that Mr Alkiswani was not a person of good character, and therefore the statutory criterion in s 13(1)(f) did not, (or does not), in fact exist.
Nowhere in the material is this contention expressly asserted, and it is plain that there was never an issue joined on this assertion.
Heerey J noted in Leung at 79:
‘… the revocation of the certificate would be in itself a decision attracting the rules of natural justice. The person concerned would be entitled to know the grounds on which it was now said that he or she did not meet the criterion in question, such as not being of good character (s 13(1)(f)), or not possessing a basic knowledge of English (s 13(1)(g)), and to be given the opportunity to put a case.’
The decision-making process before the delegate and before the Tribunal was not conducted on this basis. The applicant was denied natural justice at every stage in the process. In those circumstances, and in the absence of any allegation which might provide a lawful basis for the revocation of a decision to grant a certificate of citizenship, it is not appropriate to remit the matter for further consideration.
Section 44(4) of the Administrative Appeals Tribunal Act 1976 (Cth) provides:
‘The Federal Court of Australia shall hear and determine the appeal and may make such order as it thinks appropriate by reason of its decision.’
For the above reasons:
(1) the decision of the Tribunal of 26 November 2003 is set aside.
(2) the decision of the delegate of the Minister of 26 July 2002 to revoke the grant of citizenship to Mr Alkiswani is set aside.
(3) the respondent is to pay the applicant’s costs of and incidental to this appeal, to be taxed if not agreed.
I certify that the preceding fifty-two (52) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Spender .
Associate:
Dated: 12 October 2004
Counsel for the Applicant:
Mr Darryl Rangiah
Solicitor for the Applicant:
South Brisbane Immigration and Community Legal Service Inc.
Counsel for the Respondent:
Mr Peter Bickford
Solicitor for the Respondent:
Blake Dawson Waldron
Date of Hearing:
14 July 2004
Date of Judgment:
12 October 2004
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