Egan and Minister of Home Affairs (Citizenship) - [2020] AATA 2632

Egan and Minister of Home Affairs (Citizenship) [2020] AATA 2632 (4 August 2020)
Division:GENERAL DIVISION
File Number: 2016/3271
Re:Finian Egan
APPLICANT

Minister of Home AffairsAnd
RESPONDENT

DECISION
Tribunal:The Hon. John Pascoe AC CVO, Deputy President
Date:4 August 2020
Place:Sydney

The decision under review is affirmed.
In accordance with the Tribunal’s Orders under Subsection 41(2) of the Administrative Appeals Act 1975 (Cth), any Order made as a result of these proceedings is to come into effect 28 days after the decision.
.........................[sgd].............................................
The Hon. John Pascoe AC CVO, Deputy President
CATCHWORDS
CITIZENSHIP – application for review of decision to revoke Applicant’s Australian citizenship – where the Applicant was convicted of serious child sexual offences – whether it would be contrary to public interest for the Applicant to remain an Australian citizen – whether discretion not to revoke citizenship should be exercised – whether the Applicant would become a person who is not a national or citizen of any country – whether the Applicant renounced their Irish citizenship – decision under review affirmed
LEGISLATION
Australian Citizenship Act 2007 (Cth) ss 34, 3
Judiciary Act 1903 (Cth) s 39B
Irish Nationality and Citizenship Act 1956 s 21
Child Protection (Offenders Registration) Act 2000 (NSW)
Administrative Appeals Act 1975 (Cth) ss 34E, 41
Age Discrimination Act 2004 (Cth), ss 15, 43
CASES
O’Sullivan v Farrer (1989) 168 CLR 210
Water Conservation and Irrigation Commission (NSW) v Browning (1947) 74 CLR 492
McKinnon v Secretary, Department of Treasury (2005) 145 FCR 70
Director of Public Prosecutions v Smith [1999] 1 VR 63
Sinclair v Mining Warden at Maryborough (1975) 132 CLR 473
Kleeman and Minister for Immigration and Border Protection (Citizenship) [2017] AATA 875
Nguyen and Minister for Home Affairs [2019] AATA 998
Ayoub v Minister for Immigration and Border Protection [2015] FCAFC 83
Minister for Immigration and Multicultural Affairs v Bhardwaj (2002) 209 CLR 597
Hossain v Minister for Immigration and Border Protection (2018) 264 CLR 123
Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476
Minister for Immigration and Border Protection v CLV16 (2018) 260 FCR 482
Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v PDWL [2020] FCA 394
Purton v Jackson (2012) 21 Tas R 310; [2012] TASFC 2
Minister for Immigration and Citizenship v SZMDS [2010] HCA 16
Patterson [2001] HCA 51
Minister for Immigration and Multicultural and Indigenous Affairs v SGLB [2004] HCA 32
REASONS FOR DECISION
The Hon. John Pascoe AC CVO, Deputy President
4 August 2020

This is an application filed on 20 June 2016 for review of a decision of the Respondent, the Minister of Immigration, Citizenship, Migrant Services and Multicultural Affairs, dated 5 May 2016 to revoke the Applicant’s Australian citizenship pursuant to section 34(2) of the Australian Citizenship Act 2007 (Cth) (‘the Act’).
The matter has a long history which can be briefly summarised as follows.
The Applicant was born in November 1934 in Ireland and has been an Irish citizen from birth.
The Applicant came to Australia in 1959 having been ordained in the Catholic Church. He retired as a parish priest in 2000 and was dismissed as a cleric on 20 December 2018.
He applied for Australian citizenship in 1992 and it was granted on 26 January 1993.
In 2012 the Applicant was charged with eight counts of sexual offences against minors, committed between 1961 and 1987 during the time he was an ordained priest. These offences were as follows:
·one count of rape;
·three counts of indecent assault on a child under the age of 16; and
·four counts of indecent assault.
The Applicant was tried in the District Court of New South Wales. He was found guilty of the offences by a jury and on 20 December 2013 the Applicant was sentenced to a term of eight years imprisonment with a non-parole period of four years. In sentencing the Applicant, her Honour Tupman DCJ noted that the various incidents with which the Applicant was charged were “part of the course of conduct” but that the Applicant’s chance of reoffending was low.
On 5 May 2016, the Minister made a decision pursuant to section 34(2) of the Act to revoke the Applicant’s Australian citizenship. The Applicant then filed an application with the Administrative Appeals Tribunal (‘the Tribunal’) for review of the Minister’s decision.
On 14 December 2017, the Tribunal (differently constituted) set aside the Minister’s decision, having concluded that it would not be contrary to the public interest for the Applicant to retain his Australian citizenship. The Minister then appealed to the Federal Court of Australia by notice of appeal dated 20 December 2017. The Minister also filed an originating application for judicial review pursuant to section 39B of the Judiciary Act 1903 (Cth), seeking a writ of certiorari quashing the Tribunal’s decision and declaring that the Minister’s original decision to revoke the Applicant’s citizenship continued to have effect from the day it was made.
On 9 October 2018, the Full Court of the Federal Court allowed the appeal from the Minister on the basis that the Tribunal had fallen into jurisdictional error and remitted the matter back to the Tribunal. The Minister’s originating application for judicial review was dismissed.
During the course of the various proceedings the Applicant lodged a document with the Irish Government headed “Declaration of Alienage by a Person of Full Age” (‘the 2016 Declaration of Alienage’), purporting to renounce his Irish citizenship. Subsequently, on 25 January 2017 he received a letter from the Irish Naturalisation and Immigration Service to say that under section 21 of the Irish Nationality and Citizenship Act 1956 (‘the Irish Citizenship Act’) he would cease to be an Irish citizen “upon the acquisition of another citizenship or if you already hold another citizenship, your Irish citizenship ceases with effect from 13 October 2016, the date of your declaration”.
The Federal Court was clearly aware of the citizenship issue. The Tribunal’s decision noted that the Applicant “does not submit that he is a stateless person now”. However, in the intervening period between the Minister’s appeal and determination of that appeal, the Applicant lodged with the Irish Nationalisation and Immigration Service a further Declaration of Alienage (‘the 2018 Declaration of Alienage’), where the Applicant again purported to renounce his Irish citizenship. On 12 July 2018, an email was sent to the Applicant’s solicitor advising that the Applicant had already lodged a declaration of alienage to renounce his Irish citizenship in October 2016.
Following correspondence with the Applicant’s solicitor, the Irish Citizenship Helpdesk Team sent an email to the Applicant’s solicitor stating that the Applicant “made a declaration of alienage to renounce his Irish citizenship, he is no longer an Irish citizen”.
The Applicant was released from custody on 19 December 2017 and is currently on parole with a number of conditions imposed upon him. He is also a person to whom the Child Protection (Offenders Registration) Act 2000 (NSW) (‘the Child Offenders Act’) applies.
THE RELEVANT LEGISLATION
Section 34 of the Act sets out the circumstances in which the Minister may revoke a person’s Australian citizenship. Relevantly, section 34(2) provides as follows:
(2) The Minister may, by writing, revoke a person's Australian citizenship if:
(a)the person is an Australian citizen under Subdivision B of Division 2 (including because of the operation of section 32); and
(b)any of the following apply:
…
(ii) the person has, at any time after making the application to become an Australian citizen, been convicted of a serious offence within the meaning of subsection (5);
…; and
(c)the Minister is satisfied that it would be contrary to the public interest for the person to remain an Australian citizen.
Section 34(3) prevents the Minister, in certain circumstances, from revoking a person’s Australian citizenship. It reads as follows:
(3) However, the Minister must not decide under subsection (2) to revoke a person's Australian citizenship if:
(a)the Minister may revoke the person's Australian citizenship under that subsection only because of the application of subparagraph (2)(b)(ii); and
(b)the Minister is satisfied that the person would, if the Minister were to revoke the person's Australian citizenship, become a person who is not a national or citizen of any country.
ISSUES FOR DETERMINATION
The issues for determination by the Tribunal are as follows:
·whether the Tribunal is satisfied it would be contrary to the public interest for the Applicant to remain an Australian citizen and if so, whether the Tribunal is satisfied it should exercise its discretion in section 34(2) of the Act to revoke the Applicant’s Australian citizenship; and
·whether the Tribunal is statutorily prohibited by section 34(3) of the Act from revoking the Applicant’s Australian citizenship because it is satisfied that to do so would cause the Applicant to “become a person who is not a national or citizen of any country”.
The parties do not dispute that the Applicant falls within the provisions of sections 34(2)(a) and (b)(ii) of the Act. Nor is it disputed that section 34(3)(a) is satisfied.
The Applicant’s evidence
The Applicant gave evidence that he suffered from a range of health conditions, including tremors and hearing loss.
Under cross-examination, he accepted that in 2013 he was found guilty by a jury of eight counts of child sex offences, including rape, indecent assault on a child under 16 and indecent assault. The offences had been committed for a period from approximately the early 1960s through to the late 1980s.
The Applicant had been sentenced to eight years imprisonment and at the time of the hearing was on parole.
The Applicant said that he did not accept that he was guilty of the offences for which he had been charged and convicted. The following exchange took place between the Applicant and Counsel for the Respondent:
You say that you were guilty and convicted of the offence with which you were charged, which I went through a little earlier? --- yes
Not because you were guilty. You say you’re not guilty, but because the Judge and jury were biased? --- yes.
The Applicant confirmed the statement in his affidavit dated 15 December 2016 in which he stated:
I contend the first day of my first trial was the first day of the public hearings in Sydney, of the Royal Commission into institutional responses to child sexual abuse, focusing on abuses within the Catholic Church.
I contend there was severe bias against me, as an ordained Catholic priest and the timing of first, my trial, factors that were beyond my control.
The Applicant gave evidence that he had not engaged in a sex offenders program since his release from prison and explained that this was essentially because of difficulties in arranging participation, coupled with issues in relation to his health. The Applicant said that he was prepared to undertake such a program.
The Applicant gave evidence that he had been dismissed from the clerical state.
In 2018, he was charged with four further offences for failing to meet his reporting obligations as a registered sex offender. The first of those related to failing to disclose his telephone number, the second related to a Facebook account, the third a Youtube account and the fourth a Microsoft Outlook email account.
The Applicant admitted that he had previously been warned by the police of his need to comply with his mandatory reporting obligations.
The Applicant said that he had not complied with the requirement to notify the police of his phone number because he did not know the number and had only recorded when someone rang and he asked them to tell him the number that they had called. He had entered a plea of not guilty to the charge.
In cross-examination, the Applicant had admitted that he had been aware of the telephone number before police had come to his residence and had written it down. The Applicant also admitted to purchasing a laptop computer in March or April 2018, in relation to which he had sought assistance with setting up and downloading files.
The Applicant recalled going through the material on his computer, including searches of the “Mount Carmel Secondary School Uniform”. He said that he was looking at the school uniform because his sister was the school principal.
There were also numerous emails between the Applicant and his sister in Ireland in relation to a variety of matters, including the Pope’s visit to Ireland, which the Applicant said he had hoped would not be overshadowed by child abuse allegations against the Church of Ireland.
The Applicant claimed that some of the files and emails had been transferred by Mr O’Connor who assisted him with setting up the laptop, although Mr O’Conner had said to the Police that they had not been transferred by him.
Evidence adduced in cross-examination of the Applicant by the Respondent’s Counsel Mr Marcus during the previous Tribunal hearing was also tendered in evidence, which I have considered in addition to the Applicant’s evidence before me.
Father Vincent Casey’s evidence
Father Casey is a Catholic priest who made an affidavit in support of the Applicant dated 15 August 2019. He had previously sworn an affidavit in 2016 in relation to the Applicant.
Under cross-examination, Father Casey’s attention was drawn to paragraph 11 of his affidavit where he said:
I’ve expressed my concerns for my friend and mentor, Finian Egan, but my primary concern is for the safety of the children. I believe that children would be safer if Finian remains in Australia.
Here he would be living in a location approved by the Bishop of Broken Bay, with some oversight and restrictions placed on him, by the Bishop, and with people who know him and the story around him. In Ireland he would be anonymous, isolated, impoverished, sick and with no oversight or support. Such a stressful situation could be a “perfect storm” for a child abuser to reoffend.
In particular, Father Casey’s attention was drawn to the words “perfect storm for a child abuser to reoffend”. Father Casey sought to explain these words by saying that “for someone to be isolated, in ill-health, without social or financial support, is a perfect storm for a child abuser to reoffend”.
When questioned, Father Casey reiterated his view that the Applicant was a person of good character. He said, however, that whilst he accepted the verdict of the Court in relation to the Applicant’s offences “nothing [he’d] ever seen or experienced would leave [him] to question [the Applicant’s] good character”. In referring to his view that the Applicant was of good character despite the Court having found him guilty of child sex offences, Father Casey said that he feels “like it’s got to be both ways”.
Father Casey went on to outline the support he gave to the Applicant, including weekly phone calls and visits every one or two months.
Father Casey said that he would provide the same support to the Applicant whether he was in Australia as the holder of Australian citizenship or the holder of an ex-citizen’s visa.
Other evidence
There was an affidavit from Ms Margaret Watts, who provides domestic assistance to the Applicant.
There was also a letter from Bishop Comensoli in relation to support provided by the Church in Australia to the Applicant.
Sister Regina Maxwell also gave a statement of support for the Applicant.
I have considered all of the above evidence but give little weight to this evidence, as the material was only of limited relevance and none of these individuals gave evidence before the Tribunal or was subject to cross-examination.
CONSIDERATION
The first issue for determination is whether it would be contrary to the public interest for the Applicant to retain his Australian citizenship.
It is not in dispute that the Applicant was convicted of ‘a serious offence’ for the purposes of section 34 of the Act. Those convictions occurred before the Applicant was granted citizenship in Australia but after his application for Australian citizenship on 8 October 1992. As a result of those offences, the Applicant was sentenced to a term of imprisonment in excess of 12 months, which meets the statutory definition of the term “serious prison sentence” in section 3 of the Act.
The Act does not define the term “public interest”. Nor does it identify the matters to be considered in relation to the public interest test in section 34(2)(c). However it is well-established that the phrase “classically imports a discretionary value judgement to be made by reference to undefined factual matters” (O’Sullivan v Farrer (1989) 168 CLR 210 at 216) confined only by the subject matter, scope and purpose of the Act in which it appears (Water Conservation and Irrigation Commission (NSW) v Browning (1947) 74 CLR 492).
Tamberlin J made some useful observations in McKinnon v Secretary, Department of Treasury (2005) 145 FCR 70 as to the meaning of the phrase “public interest”. His Honour observed as follows at [9]-[12]:
The expression ‘in the public interest’ directs attention to that conclusion or determination which best serves the advancement of the interest or welfare of the public, society or the nation…
The expression ‘the public interest’ is often used in the sense of a consideration to be balanced against private interests or in contradistinction to the notion of individual interest…
…
The public interest is not one homogenous undivided concept. It will often be multi-faceted and the decision-maker will have to consider and evaluate the relative weight of these facets before reaching a final conclusion as to where the public interest resides… In some circumstances, one or more considerations will be of such overriding significance that they will prevail over all others. In other circumstances, the competing considerations will be more finely balanced so that the outcome is not so clearly predictable.
In Director of Public Prosecutions v Smith [1999] 1 VR 63 the Full Court of the Victorian Supreme Court held at [75] that:
The public interest is a term embracing matters, among others, of standards of human conduct and of the functioning of government and government instrumentalities tacitly accepted and acknowledged to be for the good order of society and for the well being of its members.
Their Honours further referred to observations of Barwick CJ in Sinclair v Mining Warden at Maryborough (1975) 132 CLR 473 that the public interest refers to “the interest of the public as distinct from the interest of an individual or individuals”.
All of the above observations provide the Tribunal with useful guidance which has been consistently applied in numerous cases before the Tribunal: see Kleeman and Minister for Immigration and Border Protection (Citizenship) [2017] AATA 875; Nguyen and Minister for Home Affairs [2019] AATA 998.
In looking at the public interest, the interests of the public at large should, in my view and in the absence of special circumstances, carry more weight than the interests of an individual person.
There is a clear and very strong public interest in the protection of children from sexual and indecent assault. The Australian public has shown very real concern about offences committed against children, especially those perpetrated by persons in a position of trust. The Australian Government set up a Royal Commission into Institutional Responses to Child Sexual Abuse to uncover the extent of abuse in institutional contexts, to give victims a voice and to make recommendations for the future. Such actions are not taken lightly.
In the current case, the Applicant has been convicted of very serious sexual offences against young and vulnerable children. He was in a position of trust at the time these offences were committed. A trust which, as demonstrated by his convictions, he undoubtedly abused. It cannot be disputed that these offences had a serious effect on the victims. Revocation of the Applicant’s citizenship in these instances reinforces a clear message about the behaviour expected of those who seek to be afforded the privilege of becoming Australian citizens.

It is of concern that the Applicant has never expressed any remorse in relation to these offences, any compassion or concern for the victims nor any apparent interest in their welfare. At the hearing before this Tribunal, the Applicant, despite his convictions in the District Court, still did not admit guilt and claimed that he had not received a fair trial because of media publicity about sexual offences committed against children and the establishment of the Royal Commission. Despite his assertions as to not receiving a fair trial, the Applicant never appealed his convictions to the New South Wales District Court.
The Applicant was convicted of sexual offences against minors over a lengthy period of 26 years. Her Honour Tupman DCJ, in sentencing the Applicant, noted that despite the Applicant being 80 years old she would sentence him to eight years imprisonment because of “the breach of trust involved in these particular offences before [her Honour] that ma[de] them more than the low range” and that despite the nature of the offences there was “no evidence of remorse and contrition”.
Of further concern, the Applicant had committed a breach of his parole conditions in that he had failed to comply with his reporting obligations under the Child Offenders Act by not informing the police of his telephone number as required. Whilst this lapse could possibly, or at least partially, be explained by the Applicant’s age, state of health and lack of familiarity with technology, it is of concern that he did not have foremost in his mind the importance of complying with his parole conditions. At the very least it raises the question as to the Applicant’s respect for the law. It is all the more troubling because the Applicant was clearly in a position to ask others, including Father Casey, for assistance in ensuring that he did not inadvertently or mistakenly do anything which would result in a breach of his parole conditions. Moreover, this breach of parole conditions occurred after he had been spoken to by the police about earlier breaches.
It is clearly against the public interest for an individual such as the Applicant to demonstrate a lack of respect for Australian law and Australian legal institutions and processes, including Courts and Tribunals and the decisions reached (see Director of Public Prosecutions v Smith [1999] 1 VR 63 above).
The seriousness of the Applicant’s convictions, his lack of remorse, failure to accept that he received a fair trial and the breaches of his bail conditions, even though occurring at a later time, are all matters which give weight to the Respondent’s submissions that the Applicant would not have been granted Australian citizenship if the authorities had been aware of his various offences at the time of his application and that it would be contrary to the public interest for the Applicant to retain his Australian citizenship.
At the hearing there was dispute between the Applicant and the Respondent as to the matters to be considered when determining the public interest. The Respondent submitted that the Applicant’s age and state of health are not matters to be considered in exercising discretion as to whether the revocation of citizenship is in the public interest.
Although it is generally accepted that the public interest is separate and distinct from the interests of an individual, the wider public interest can, in my view and in appropriate circumstances, include issues such as an individual’s age and health status because these can help inform the likelihood of an Applicant re-offending and because compassion and concern for the individual may properly be part of the wider public interest to weigh against other relevant issues. Generally, the interests of an individual separately considered will not outweigh the wider public interest, as reflected in the above comments of Barwick CJ in Sinclair v Mining Warden at Maryborough (1975) 132 CLR 473.
There are a number of factors which the Applicant said should be taken into account in coming to a conclusion on whether revocation was in the public interest, including the Applicant’s age and state of health, which might be considered when determining the broader ‘public interest’.
The fact that the chance of the Applicant’s re-offending was rated as low by the sentencing Judge and because the environment he currently enjoys is supportive of his physical and mental health, I accept, reduces the chance of his re-offending. The Applicant’s age and state of health clearly indicate his need for support in day-to-day living arrangements. There is, however, no reason to believe that the provision of this support is dependent upon the him continuing to remain an Australian citizen. Rather, these supports will continue whilst the Applicant resides in Australia.
Although Father Casey is not an expert in the field and gave his evidence as a friend of the Applicant, I have nevertheless put some weight on his views on the Applicant’s likelihood of recidivism. It was of concern that Father Casey, whom I found to be a credible witness, in his evidence before the Tribunal said that the Applicant would be likely to re-offend if his current supports were removed from him. This gives some weight to the proposition that although the Applicant has a low risk of re-offending, there is still a risk if the right circumstances were to occur. Furthermore, the nature of the Applicant’s offending is particularly serious, even if there is a low risk of re-offending.
The Applicant’s age and state of health is another factor I have considered. The Applicant has a variety of medical conditions including coronary artery disease, bowel cancer, asthma and familial tremors, anxiety and depressive symptoms, insomnia, poor concentration, irritability and experiences difficulties in making decisions. His hearing function and his eyesight have deteriorated. He has skin cancer, scalp problems and a history of pneumonia. I note that his poor health was noted at the time of his sentencing and would appear to have degenerated in the years since then. The Applicant had a fall in May 2018 which further affected his memory, concentration, mobility and general ability to function. I note that the Applicant had a period of hospitalisation prior to the hearing before the Tribunal and his poor health was quite evident. I give limited weight to these factors.
The Applicant put into evidence an interview conducted by Mr Ray Hadley with the Minister, which was broadcast on 25 January 2018. During the interview the Minister expressed the opinion that the Applicant was a “horrible individual” and said that he did not “believe [the Applicant] is a worthy member of our society”. It was submitted on behalf of the Applicant that this was a strong indication that if the Applicant’s citizenship were revoked, after which he would be granted an ex-citizen visa, the Minister would then cancel this visa. If his ex-citizens visa is then cancelled, the Applicant would be unable to remain in Australia and therefore unable to receive the care and support provided by the Catholic Church in Australia. Father Casey gave evidence that in the absence of this support he believed the Applicant would be more likely to reoffend.
I note the comments of the Full Court of the Federal Court in Ayoub v Minister for Immigration and Border Protection [2015] FCAFC 83 that “future exercises of discretion and statutory power are to be resolved when they arise”. Any consideration of whether the Applicant will continue to be allowed to reside in Australia is a future matter for the Minister or his delegate. The Applicant’s removal from Australia to Ireland will not necessarily follow from my decision on this application.
Although there is no doubt that the Minister made the comments noted above, I do not accept that this is an indication that the Minister will make a particular decision in the future. Comments made in the context of an interview with a radio personality, particularly one who may be seen as falling within the description of a “shock jock”, cannot be taken as evidence as to what the Minister or a delegate of the Minister might do in the future where circumstances may be quite different and there is a need to carefully consider all of the facts existing at that time.
I have previously discussed the Applicant’s convictions for serious child sex offences, his attitude to those convictions, his subsequent behaviour and the likelihood of his reoffending. There is no evidence of contrition, acceptance of his convictions, nor of respect for the independence and impartiality of the Australian judicial system. It would be impossible to describe him as a reformed character. He has not shown any real concern for the plight of his victims, victims who were vulnerable people in relation to whom he was in a position of trust. The ongoing pain suffered by the victims of sexual abuse cannot be ignored.
Whilst I accept that the Applicant does not appear to have a high risk of reoffending, especially if there is no opportunity to do so, there is no certainty that he would not reoffend if an opportunity did arise and the conditions were right, or perhaps in some way were akin to a “perfect storm”.
On the other hand, there is no doubt that the Applicant is a seriously ill and elderly man. The offences of which he was convicted occurred a long time ago. His health continues to deteriorate. There was evidence that his health and age may prevent him from travelling to Ireland if indeed there was ever to be such a requirement. Moreover, evidence was given that if the Applicant were to return to Ireland he would not have the same level of support as is available to him in Australia, and Father Casey in his evidence said that the Applicant would be more likely to reoffend if he were unable to access his current level of support.
After the hearing, the Applicant filed a new submission dated 15 April 2020 and a World Health Organisation (‘WHO’) factsheet detailing the current situation of the COVID-19 pandemic. The Applicant argued that if his Australian citizenship is revoked there is a significant risk that his ex-citizen visa will be cancelled, he will be removed from Australia and that during this removal he will likely contract COVID-19. Counsel for the Applicant noted that the Tribunal should exercise its discretion under section 34(2) of the Act, as the Applicant is at a heightened risk of “acquiring, and dying from, the disease in Ireland, or on any journey there”, because of the higher prevalence of COVID-19 in Ireland and in transit to Ireland, and because he is in a higher risk category due to his age and history of asthma.
I give little weight to this submission for the following reasons. Firstly, I note the Respondent’s submissions that the consequence of revocation is that the Applicant will be granted an ex-citizen visa, not that he will be automatically removed from Australia. Furthermore, there is no clear evidence before the Tribunal as to whether or not cancellation of the Applicant’s ex-citizen visa might occur. Furthermore, there are other avenues for review, appeal or visa options open to the Applicant in circumstance where his ex-citizen visa is cancelled. As stated previously, these are all matters which may arise in the future and are appropriate matters for consideration at that time.
Counsel for the Applicant raised an issue of the Age Discrimination Act 2004 (Cth) (‘the Age Discrimination Act’) saying that it applies to the Applicant. Section 15 of the Age Discrimination Act provides as follows:
(1) For the purposes of this Act, a person (the discriminator) discriminates against another person (the aggrieved person) on the ground of the age of the aggrieved person if:
(a) The discriminator imposes, or proposes to impose, a condition, requirement or practice; and
(b) the condition, requirement or practice is not reasonable in the circumstances; and
(c)the condition, requirement or practice has, or is likely to have, the effect of disadvantaging persons of the same age as the aggrieved person.
(2) For the purposes of paragraph (1)(b), the burden of proving that the condition, requirement or practice is reasonable in the circumstances lies on the discriminator.
I note, however, that section 43(2) of the Age Discrimination Act states as follows:
(2) This Part does not make unlawful anything done by a person in direct compliance with:
(a) the Australian Citizenship Act 2007; or
(b) the Immigration (Education) Act 1971.
In my view, section 43(2) precludes the application of section 15 of the Age Discrimination Act to the current circumstances.
Even if section 43(2) did not apply, I am satisfied that on the facts of this case the Age Discrimination Act is not relevant. At the very least, the exercise of the Tribunal’s powers cannot be described as being an imposition of “a condition, requirement or practice”. Further, the Respondent submitted that even if that were the case, the Applicant has not established how revocation of the Applicant’s Australian citizenship would have the effect of “disadvantaging persons of the same age” as the Applicant. I accept that submission. The Applicant’s argument is based largely on the premise that the Applicant would face disproportionate disadvantage due to his age if he were removed to Ireland. However, as was stated above, the Applicant’s removal to Ireland is not a necessary consequence of a decision to revoke his Australian citizenship.
During the course of the hearing I accepted into evidence a letter from the Applicant’s representatives setting out the terms of an offer to settle the matter. I did so on the basis that it was on its face of no evidentiary value and that it only served to show that such an offer was made. I am not aware of the outcome of any settlement negotiations. However, such negotiations, if indeed they occur, and any future outcome of any settlement offer is a matter to be dealt with in the future and I place no weight on it for the purposes of this decision. I note also that the offer was not made as part of any alternative dispute resolution within the ambit of section 34E of the Administrative Appeals Act 1975 (Cth) (‘the AAT Act’), which would preclude it being referred to in these proceedings.
A number of factors relate more to the interests of the Applicant as an individual rather than the public interest. I have nevertheless considered factors such as the Applicant’s age, state of health and chances of recidivism within the wider public interest and have given them appropriate weight.
The Applicant’s personal circumstances do not outweigh the wider public interest in protecting the Australian community, especially vulnerable children, and particularly in circumstances where the Applicant does not accept his wrong-doing and conviction, has attempted to blame his victims and where there is a risk, however slight, of the Applicant reoffending.
Accordingly, I am satisified that it would be contrary to the public interest for the Applicant to retain his Australian citizenship and that the Tribunal’s discretion should be exercised to revoke the Applicant’s Australian citizenship.
IS THE APPLICANT CURRENTLY AN IRISH CITIZEN?
ISSUES FOR DETERMINATION
The issue of the Applicant’s Irish Citizenship is significant as, if the Tribunal were to find that the Applicant were a citizen of Ireland, revoking his Australian citizenship would not render him stateless and he would not fall within the provisions of section 34(3) of the Act.
The two main issues that the Tribunal must consider in determining whether the Applicant is currently an Irish citizen is whether:
(a)Under Australian law, was the Applicant an Australian citizen from the date of the Minister’s decision?
(b)Did the Applicant at any time successfully renounce his Irish citizenship between the date of the first Tribunal decision and the decision of the Full Court of the Federal Court of Australia?
I refer to the previous timeline, evidence provided to the Tribunal and presented at the hearing and submissions from both parties that have assisted in considering the above questions.
At the hearing, expert evidence on Irish law was given by Mr David Leonard on behalf of the Applicant and by Dr Stephen Coutts on behalf of the Respondent.
Mr Leonard is a member of the Irish Bar with some 15 years of practice. He has extensive experience in judicial review, immigration and asylum and constitutional law, and is the co-author of a book on Irish constitutional law. He also lecturers in these areas for the Barrister-of-Law degree course of the Honourable Society at King’s Inn.
Dr Coutts is an Irish academic with substantial experience in Irish public law and citizenship law who has published on these subjects. He also has taught both subjects as part of courses in Irish constitutional law and comparative law. Each submitted detailed report to the Tribunal. Both experts gave lengthy evidence and were the subject of detailed cross-examination.
The evidence given by each may be briefly summarised as follows.
Mr Leonard
In his report and in oral evidence, Mr Leonard put forward that the Applicant’s Declaration of Alienage on 13 October 2016 was valid and was unlikely to be successfully challenged under Irish law.
In Mr Leonard’s opinion, if the Tribunal’s original decision had the effect of reinstating the Applicant’s Australian citizenship then he ceased to be an Irish citizen on the date of that Tribunal decision, namely 14 December 2017.
In the alternative, if the first decision of the Tribunal took the place of the Minister’s decision of 5 May 2016, the Applicant ceased to be an Irish citizen as at the date of his Declaration of Alienage, namely 13 October 2016.
In Mr Leonard’s opinion, the Minister’s appeal and the subsequent decision of the Federal Court of Australia was irrelevant for the purposes of determining the position under Irish law regardless of its effect under Australian law. In Mr Leonard’s view, the Applicant’s renunciation of his Irish citizenship would only be “triggered” once and was, as a matter of Irish law, final. On this view, the Applicant’s Declaration of Alienage of his Irish Citizenship was not affected by subsequent developments in Australia. He said as follows:
Once the person becomes a citizen of another state, [the mechanism of renunciation] takes effect. If a measure, such as a court or tribunal decision of the other state, ostensibly operates to make the person a citizen of that country, Irish citizenship is lost. That the measure in question may subsequently be held to be invalid cannot reactivate the person's Irish citizenship. Otherwise, Irish citizenship law would be subject to the uncertainties and unpredictability of ongoing foreign litigation.
During cross-examination, Mr Leonard said that the Irish Courts had not considered section 21(1) of the Irish Citizenship Act, so he could not provide a conclusive view as to what the Irish Supreme Court might decide. However, in his view, the Court would be unlikely to continue to monitor and take into account changing decisions in another country.
Questioned further, Mr Leonard said that in his opinion renunciation of Irish Citizenship under section 21 is an administrative process initiated by the lodgement of a Declaration of Alienage and it takes effect when a person becomes a citizen of another country. Accordingly, in his view, the Applicant ceased to be a citizen of Ireland at the date of the first Tribunal decision having renounced his Irish citizenship.
Mr Leonard stated that in his view there was no ambiguity in section 21(1). Even if the Applicant became stateless, it would not change the meaning of section 21(1). The Declaration of Alienage took effect when “triggered” by the first Tribunal decision, even if that decision was subsequently overturned.
Although Mr Leonard accepted the proposition put by Counsel for the Respondent that whether a person is considered a citizen of a foreign country would be decided by the laws of that country under Irish law, he did not believe that this changed the Applicant’s position under Irish law.

Mr Leonard accepted that the effect of the Federal Court decision was to render the first Tribunal decision as having no effect, but he said this did not change the Applicant’s position, as the Declaration of Alienage had been triggered after the first Tribunal decision but before the decision of the Full Federal Court, regardless of the effect of the Federal Court decision under Australian law.
Dr Coutts
Dr Coutts submitted three reports to the Tribunal dated 3 April 2018 (‘the first report’), 2 August 2018 (‘the second report’) and 28 October 2019 (‘the third report’).
In the first and subsequent reports, Dr Coutts submitted that the question of whether the Applicant is, or is not, an Australian citizen is to be determined in accordance with Australian law, conforming with the plain meaning of the words under Irish Law.
He stated that whether the Applicant ceased to be an Irish citizen turned on the previous Tribunal’s decision in Australia, and whether it has retrospective or prospective effect. Dr Coutts noted that:
If the AAT’s decision was set aside by the Federal Court of Australia, then for the purposes of Irish law, [the Applicant] will be deemed not to have been an Australian citizen on 13 October 2016 and not to have become an Australian citizen since that date.
However, Dr Coutts conceded that if the first Tribunal decision and the reinstation of the Applicant’s Australian citizenship is prospective (namely, that it had the effect of operating on and from the date on which it was made) regardless of the outcome and effect of any subsequent appeal, then the Applicant “would … have ceased to be an Irish citizen on 14 December 2017”, being the date of the Tribunal’s decision.
The second report by Dr Coutts primarily addressed the opinion of the Applicant’s former expert witness, Ms Grainne Mellon, in her report dated 2 July 2018. Dr Coutts stated that on assumption of Ms Mellon’s view that the Tribunal’s decision had the effect of rendering “void ab initio” the Minister’s decision, this “would indicate that [the Applicant] was not an Australian citizen at the time of his initial declaration of renunciation and therefore did not lose his Irish nationality on that date”.
Dr Coutts also noted that he does not give substantial weight to the e-mails from an Irish official admitted into evidence that stated the Applicant is no longer an Irish citizen, as the emails contain no consideration of the nuances of this case nor had they been before a Irish Court.
Dr Coutt’s third report was prepared after the Federal Court had delivered its judgement for the purpose of the current proceedings and responded to the report of Mr Leonard dated 22 July 2019. In this report, Dr Coutts noted that if the Applicant ceased to be an Australian citizen on 5 May 2016 and remained a non-Australian citizen up until the present time, then “the Applicant is currently an Irish citizen”.
Dr Coutts accepted that this issue has not been subject to judicial consideration in Ireland.
Other reports
The report of Grainne Mellon, who is a barrister at Garden Court Chambers in London, was produced at the request of the Applicant in the Federal Court proceedings. It was then produced and relied upon by the Respondent in these proceedings.
Reference was also made to the writings of Professor Parry in his book entitled ‘Nationality and Citizenship Laws of the Commonwealth and the Republic of Ireland’.
CONSIDERATION
It was agreed by both parties and all three experts that the question of the Applicant’s Australian citizenship is to be determined according to Australian law. Dr Coutts, Ms Mellon and Mr Leonard all stated that for the purposes of section 21(1) of the Irish Citizenship Act the question of the Applicant’s Australian citizenship was to be determined by Australian law, which would include the decisions of Administrative Tribunals and Courts as outlined by Professor Parry in his book at page 969.
The provisions of section 21(1) of the Irish Citizenship Act are important and accordingly I set out the wording of the section in full below:
If an Irish citizen, who is either of full age or a married woman under that age, is or is about to become a citizen of another country and for that reason desires to renounce citizenship, he or she may do so, if ordinarily resident outside the State, by lodging with the Minister a declaration of alienage in the prescribed manner, and, upon lodgment of the declaration or, if not then a citizen of that country, upon becoming such, shall cease to be an Irish citizen.
The position under Australian law is quite clear. The first Tribunal decision was found by the Full Court of the Federal Court to be affected by jurisdictional error. Therefore, as stated by Gaudron and Gummow JJ in Minister for Immigration and Multicultural Affairs v Bhardwaj (2002) 209 CLR 597 (‘Bhardwaj’) at 614-615 [51]: “a decision that lack[ed] legal foundation and [wa]s properly regarded, in law, as no decision at all”.
This principle was again enunciated by the High Court more recently in Hossain v Minister for Immigration and Border Protection (2018) 264 CLR 123 (‘Hossain’) at 133 [24] by Kiefel CJ, Gageler and Keane JJ, who found that a decision affected by jurisdictional error “is a decision in fact which is properly to be regarded for the purposes of the law pursuant to which it was purported to be made as “no decision at all”. To that extent, in traditional parlance, the decision is “invalid” or “void” (Hossain v Minister for Immigration and Border Protection (2018) 264 CLR 123 (‘Hossain’) 133 at [24]).
It was argued on behalf of the Applicant that the judgement in Bhardwaj, and a later decision of Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476 where the same principle was applied, are irrelevant to the current situation, specifically the consequences of the Federal Court decision made some 10 months after the first Tribunal decision that was found to have been affected by jurisdictional error and the application of Irish law.
Furthermore, subsequent case law has established that the decision of Bhardwaj does not mean that a decision affected by jurisdictional error is incapable of having any consequences at all. Rather, as the Full Federal Court observed in Minister for Immigration and Border Protection v CLV16 (2018) 260 FCR 482 at [64]:
…the legal and factual consequences of such a decision will ultimately depend upon the particular statutory provisions pursuant to which the decision has been made.
This principle was further enunciated by Blow J in Purton v Jackson (2012) 21 Tas R 310; [2012] TASFC 2.
Therefore, despite the fact that the first Tribunal decision was affected by jurisdictional error and was “no decision at all”, it is appropriate to look more closely at the words of the relevant statute and other applicable circumstances such as the purposes for which the decision was made, in determining whether that is indeed the situation in the current case.
The Tribunal is assisted in this regard by the decision of Flick, Griffiths and Perry JJ in Minister for Immigration and Border Protection v CLV16 (2018) 260 FCR 482, in dealing with a situation similar to the current case. Their Honours stated at 499[71] as follows:
If any Parliamentary intent is to be discerned that a “decision” made by a statutory decision-maker without having discharged the statutory tasks required to be undertaken is to be a “decision” notwithstanding such a fundamental jurisdictional error, much clearer words are required than can be found within s 473EA(2) and/or (3) [of the Migration Act 1958]. To clothe a “decision” with the character of one that cannot be revisited in circumstances where it becomes manifestly apparent the statutory responsibility of conduction a “review” has not be undertaken, much clearer statutory language is called for.
A careful reading of the Australian Citizenship Act does not, in my opinion, demonstrate any such clear statutory language which would give force to the Applicant’s proposition that the first Tribunal decision should have effect despite being infected with jurisdictional error.
I note further that, although the proposition that such language exists within the particular statutory provisions was put forward on behalf of the Applicant, no example or authority was provided at any stage, including in the Explanatory Memorandum to the Bill that led to the enactment of the Australian Citizenship Act nor the Minister’s Second Reading Speech. Nor did the Applicant provide examples of how the Australian Citizenship Act would evince a legislative intent for a decision affected by jurisdictional error to have ongoing legal force. In my opinion, there is nothing to support for the proposition that the first Tribunal decision should be operative despite being affected by jurisdictional error.
The Applicant cited Wigney J’s recent judgment in Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v PDWL [2020] FCA 394 (‘PDWL’) to give weight to their proposition that the first Tribunal decision “was capable of being treated as operative, meaningful and a source of legal rights and entitlements” prior to the Full Federal Court’s decision, and that the first Tribunal decision “was capable of prompting an automatic or deemed legal consequence in Ireland at the time it was made”.
I am not satisfied that these conclusions can be drawn in this case. Unlike the judgement in PDWL, in the Applicant’s case the Full Federal Court determined that the first Tribunal decision was affected by jurisdictional error. In my reasoning above, I am therefore not satisified that the first Tribunal decision is to be treated as “operative”. Rather, I am of the opinion the first Tribunal decision is regarded by Australian citizenship law, notably the law that is considered for the purposes of section 21(1) of the Irish Citizenship Act, as “no decision at all”. Furthermore, as was stated in submissions by the Respondent, the Applicant’s reference to the “hypothetical Irish immigration official” who was not aware of subsequent legal developments in Australia but “was capable of prompting an automatic or deemed legal consequence in Ireland at the time it was made” is not applicable to Irish citizenship law. The expert evidence before the Tribunal was that there was no immigration official who had any such determinative role in the application of section 21(1) of the Irish Citizenship Act.
Turning to the question of whether the Applicant, regardless of the status of the decision of the Full Court of the Federal Court and its effect on the first Tribunal decision nevertheless successfully renounced his Irish citizenship, I am mindful of the remarks of Perram J in relation to the Applicant’s Irish citizenship. His Honour stated as follows at [459]:
… when on 13 October 2016 the Respondent renounced his Irish citizenship this could potentially be seen to be effective under Irish law since he would not be rendered stateless.
His Honour made it clear in those comments, however, that they were not meant to be determinative of a matter which was not before the Full Court, namely any question concerning the Applicant’s Irish citizenship. In fact, he went on to say the following at 459 [31]:
“[i]t is likely that on remittal the Tribunal will be confronted with the same argument but that will be because the issue will be before it in a properly articulated way”.
I note that at the hearing the Applicant placed significant weight on various email exchanges with the “Citizenship Help Desk – Team 4”. These exchanges took place between 12 July 2018 and 13 July 2018.
I place little weight on the emails. The matter of the Applicant’s citizenship was never, at least on the face of the emails, the subject of any detailed consideration by the Irish authorities or the Irish Courts. The email rather repeats the language of section 21(1) of the Irish Citizenship Act. The emails were akin to a relatively routine response to an enquiry, which was framed in such a way as to result in an answer which supported the Applicant’s position. There was no mention of the pending proceedings in an Australian court in relation to the Applicant’s Australian citizenship. Such communication is not determinative of the Applicant’s citizenship status. This view was supported by both Mr Leonard and Dr Coutts in their evidence to the Tribunal.
I do not agree with the proposition put forward by Mr Leonard that section 21(1) of the Irish Citizenship Act was “triggered” during that period, on the assumption that the first Tribunal decision had an effect which could only be triggered once. Mr Leonard said as follows:
Whether [the Full Court decision] had, as a matter of Australian law, the retrospective effect of invalidating the AAT decision dated 14 December 2017 is, in my view, irrelevant. The mechanism of renunciation of Irish citizenship under s. 21(1) of the 1956 Act becomes effective once the person in question acquires citizenship of another country. It must be viewed as being capable of being triggered only once – it must have one-way operating capability only. Considerations of certainty for Irish citizenship law would necessarily demand this. Once the person becomes a citizen of another state, it takes effect…
This proposition does not seem to be supported by either Irish or Australian law. Specifically, Mr Leonard’s view appears to be directly at odds with the Irish law and the actual wording of section 21(1) of the Irish Citizenship Act, which refers to not just the status quo but the future in the words “about to become”. In this respect, section 21(1) recognises the laws of other countries and that becoming a citizen is a legal process which may involve many steps and is not a single event or decision.
There is a lack of logic in Mr Leonard’s reasoning in proposing that it is irrelevant what happens in Australia under the Australian legal system after the first “trigger”. In my view, it is clear from section 21(1) of the Irish Citizenship Act that the operation of Irish Citizenship law is contingent on Australian law, including decisions of Tribunals and Courts. The fact there is an ongoing process of appeal in Australia is not therefore irrelevant and the outcome of any appeal is clearly relevant.
In response to cross-examination at the hearing on the practical difficulties arising from the view that section 21 operates as a “trigger” that is capable of being pulled only once in Irish law, Mr Leonard said that “the fact that it’s relatively easy to require Irish nationality, after renunciation, would tend to argue in favour of a liberal interpretation of section 21”. Therefore, as Mr Leonard noted, the potential harm of statelessness arising from a liberal interpretation of section 21 is counteracted by section 6(5) of the Irish Citizenship Act, which enables reacquisition of citizenship for a person born in Ireland who made a Declaration of Alienage.
This argument does not, however, recognise that many Irish citizens do not acquire citizenship through being a person born in Ireland. If a liberal interpretation of section 21 applied, citizens who did not acquire Irish citizenship at birth would be discriminated against under the Irish Citizenship Act, as they are not be captured by the protection offered in section 6(5). It is highly unlikely the Irish Parliament would have intended such an effect in the absence of specific provisions to that end. Without any guidance from the Irish Courts or other authority on the proposition that section 21 operates as a “trigger” that can only be triggered once as suggested by Mr Leonard, I am satisified that the balance weighs against this ‘liberal’ interpretation.
On the basis of the evidence presented, I am of the opinion that the first Tribunal decision was rendered inoperative and that on the date of the Minister’s decision the Applicant was a citizen of Ireland. Regardless of the Applicant’s purported attempts to renounce his Irish Citizenship, this was simply not possible under Irish law when he was not a citizen of another country.
In this regard, I accept the evidence of Dr Coutts, which is further supported by the report of Dr Mellon originally given in evidence on behalf of the Applicant.
It is not in dispute that the question of whether a person is an Australian citizen is a matter of Australian law. Accordingly, when looking at section 21(2) of the Irish Citizenship Act, it is not a matter to be determined by the actions of an Irish public servant.
The determination under Australian law that the Applicant was not a citizen at any time since the Minister’s decision must preclude the operation of any final “trigger” as suggested by Mr Leonard. He cannot choose between aspects of Australian law which suit his case and others that do not. In other words, he cannot be selective in giving effect to the Minister’s decision and the first Tribunal decision but ignoring the effect of the Federal Court decision by claiming the Applicant has “triggered” an event which Irish law itself makes clear is to be determined by the laws of Australia, where the effect of the decision of the Full Federal Court is well settled.
Reference was made to the work of Professor Parry which was acknowledge by Mr Leonard as consistent with the view that the question of whether a person becomes a citizen of another country is a matter to be determined by the final laws of that country and not Irish Law. Professor Parry writes as follows:
[t]he question of whether he or she became a citizen of that other country would of course be a matter to be determined according to the nationality law of that country, rather than Irish law.
I note this view is consistent by the views expressed by Dr Coutts and I find that the opinion of Dr Coutts is to be preferred. It is clear and consistent and recognises the effect of the Orders of the Federal Court. The effect of the Federal Court decision was that the first decision of the Tribunal effectively never existed; it was not effective for any period. Furthermore, the argument as to the effect of section 6(5) of the Irish Citizenship Act does not help the Applicant’s case.
I do not place any less weight on the evidence of Dr Coutt’s because of the fact he is an academic. He is a recognised expert on Irish citizenship law. His evidence was clear and consistent.
Ultimately, pursuant to subsection 34(3)(b) of the Australian Citizenship Act, I am required to be satisfied that revoking the Applicant’s Australian citizenship would not make him “become a person who is not a national or citizen of any country”.
The High Court has given some guidance as to the meaning of the word ‘satisfied’.
Chief Justice Kiefel J and Gummow in Minister for Immigration and Citizenship v SZMDS [2010] HCA 16 made some useful observations about when a decision maker could be “in reality” satisfied. At [34] their Honours said as follows:
… In Avon Downs Pty Ltd v Federal Commissioner of Taxation, s 80(5) of the Income Tax Assessment Act 1936 (Cth) required the taxpayer company, if prior losses were to be allowed deductions, to satisfy the Commissioner of the state of its voting power on the last day of the year of income. No reasons were given by the Commissioner for the disallowance of the taxpayer's objections to its assessment. In that context Dixon J explained the circumstances in which the conclusion of the Commissioner was liable to review by the court. Likewise, the inadequacy of the material before the decision maker may support an inference that the decision maker has applied the wrong test or was not "in reality" satisfied of the requisite matters or from the absence of reasons the court may infer the absence of any good reason.
Furthermore, Chief Justice Gleeson in Patterson [2001] HCA 51 at [333] noted the importance of forming objective reasons for being satisfied of a particular decision:
Obviously, the precondition that the Minister be satisfied that the refusal or cancellation is "in the national interest" cannot be met simply because the Minister subjectively had such satisfaction. If, objectively, there is no reasonably arguable foundation for it, the precondition will not exist. In this regard, the law, including in Australia, has come a long way since Liversidge v Anderson. On the other hand, the designation of the Minister as the repository of the power, and the specification that the Minister personally must exercise the power of the kind mentioned in s 501(3) of the Migration Act, obviously reflect the importance, potential controversy and need for political accountability in such a decision and the high responsibility that Ministers bear in protecting the national interest in this and other fields. What is the "national interest" does not readily lend itself to the compartmentalisation of the considerations involved.

I also have regard to the comments of Gummow and Hayne JJ in Minister for Immigration and Multicultural and Indigenous Affairs v SGLB [2004] HCA 32 at [37] and [38]:
Further, s 65 of the Act provides that the Minister is to grant a visa sought by valid application "if satisfied" of various matters. These include that any criteria for the visa prescribed by the Act are satisfied (s 65(1)(a)(ii)). Section 65 imposes upon the Minister an obligation to grant or refuse to grant a visa, rather than a power to be exercised as a discretion.
The satisfaction of the Minister is a condition precedent to the discharge of the obligation to grant or refuse to grant the visa, and is a 'jurisdictional fact' or criterion upon which the exercise of that authority is conditioned. The delegate was in the same position as would have been the Minister (s 496) and the Tribunal exercised all the powers and discretions conferred on the decision-maker (s 415).

The satisfaction of the criterion that the Applicant is a non-citizen to whom Australia has the relevant protection obligations may include consideration of factual matters but the critical question is whether the determination was irrational, illogical and not based on findings or inferences of fact supported by logical grounds. If the decision did display these defects, it will be no answer that the determination was reached in good faith.
For the reasons outlined above, I am satisfied that under Australian law the Applicant was not an Australian citizen from the date of the Minister’s decision. Rather, I am satisified that the Applicant was an Irish citizen at the date of the Minister’s decision and remains an Irish citizen, despite his attempts to renounce that citizenship.
DECISION
The correct and preferable decision is to affirm the decision of the Minister.
STAY APPLICATION
I was asked by Counsel for the Respondent, supported by Counsel for the Applicant, to grant a Stay under subsection 41(2) of the AAT Act of 28 days in relation to any Order made as a result of the proceedings before the Tribunal.
I make such an Order supported by both parties because of the issues raised in this matter, and particularly the somewhat novel question in relation to whether the Applicant is an Irish citizen.
Although clearly not a matter for the Tribunal to consider, I note that the Stay Order may provide an opportunity for the parties to consider future options for the Applicant including the Offer of Settlement made by the Applicant (if such an offer is indeed still open), given the Applicant’s age, state of health, the COVID-19 pandemic and the likely monetary and emotional cost of further litigation.

I certify that the preceding 145 (one hundred and forty-five) paragraphs are a true copy of the reasons for the decision herein of The Hon. John Pascoe AC CVO, Deputy President

.....................[sgd]...................................................
Associate
Dated: 4 August 2020

Date of hearing: 18 and 19 December 2019

Counsel for the applicant:

Applicant’s representative:

Mr D Macdonald-Norman
Mr I Davidson SC

Ms W Ahmed, Buttar, Caldwell & Co

Counsel for the respondent:

Respondent’s representative:

Mr B Kaplan

Ms A Nanson, Australian Government Solicitor