Egan v Minister for Home Affairs

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FEDERAL COURT OF AUSTRALIA

Egan v Minister for Home Affairs [2021] FCAFC 85  

Appeal from: Egan and Minister of Home Affairs (Citizenship) [2020] AATA 2632
File number: NSD 971 of 2020
Judgment of: NICHOLAS, STEWART AND ABRAHAM JJ
Date of judgment: 28 May 2021
Catchwords: ADMINISTRATIVE LAW – citizenship – appeal from Administrative Appeals Tribunal on question of law under s 44 of Administrative Appeals Tribunal Act 1975 (Cth) – revocation of the applicant’s Australian citizenship under s 34(2) of the Australian Citizenship Act 2007 (Cth) – whether the Tribunal erred – whether discretion to revoke considered separately from public interest – whether the Tribunal considered an open offer made in the proceeding – whether the applicant was a dual citizen of Ireland – limited review of a state of satisfaction – whether if there was uncertainty in relation to the applicant’s dual citizenship that should have been considered in the exercise of the discretion – whether an earlier Tribunal decision was a thing in fact under the Australian Citizenship Act 2007 (Cth) despite being affected by jurisdictional error such as to make effective the applicant’s renunciation of Irish citizenship
Legislation:

Administrative Appeals Tribunal Act 1975 (Cth) ss 43(1), 44

Age Discrimination Act 2004 (Cth) s 15

Australian Citizenship Act 2007 (Cth) s 34,

Judiciary Act 1903 (Cth) s 39B

Migration Act 1958 (Cth) ss 35(3), 500, 501, 501CA

Irish Nationality and Citizenship Act 1956 s 21(1)

Convention on the Reduction of Statelessness, opened for signature 30 August 1961, 989 UNTS 175 (entered into force 13 December 1975; [1975] ATS 46)
Cases cited:

Ali v Minister for Home Affairs [2020] FCAFC 109; 278 FCR 627

Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 184; 236 FCR 593

Avon Downs Pty Ltd v Commissioner of Taxation [1949] HCA 26; 78 CLR 353

Ayoub v Minister for Immigration and Border Protection [2015] FCAFC 83; 231 FCR 513

Buck v Bavone [1976] HCA 24; 135 CLR 110

Bushell v Repatriation Commission [1992] HCA 47; 175 CLR 408

Commissioner of Taxation v Addy [2020] FCAFC 135

Haritos v Commissioner of Taxation [2015] FCAFC 92; 233 FCR 315

Hossain v Minister for Immigration and Border Protection [2018] HCA 34; 264 CLR 123

Makarov v Minister for Home Affairs (No 2) [2020] FCA 1275

Minister Administering the Crown Lands Act v New South Wales Aboriginal Land Council [2009] NSWCA 151

Minister for Home Affairs v Waraich [2020] FCA 1513

Minister for Immigration & Multicultural Affairs v Eshetu [1999] HCA 21; 197 CLR 611

Minister for Immigration and Border Protection v CLV16 [2018] FCAFC 80; 260 FCR 482

Minister for Immigration and Border Protection v DRP17 [2018] FCAFC 198; 267 FCR 492

Minister for Immigration and Border Protection v Egan [2018] FCAFC 169; 261 FCR 451

Minister for Immigration and Border Protection v Tran [2015] FCA 546; 232 FCR 540

Minister for Immigration and Multicultural Affairs v Bhardwaj [2001]…

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Details
Case
[2021] FCAFC 85
Decision Date

CaseChat Overview and Summary

The Federal Court was asked to consider an appeal from the second decision of the Administrative Appeals Tribunal (AAT) which had upheld a decision of the Minister for Home Affairs to revoke the applicant’s Australian citizenship. The applicant had been convicted of serious sexual offences against minors and had been sentenced to eight years imprisonment with a non-parole period of four years. He had been an Australian citizen since 1993 and had been born in Ireland in 1934. The Minister revoked the applicant’s citizenship under section 34(2) of the Australian Citizenship Act 2007 (Cth) and the applicant applied to the AAT for review of the Minister’s decision. The AAT had previously set aside the Minister’s decision on the basis that it would not be contrary to the public interest for the applicant to remain an Australian citizen. The Minister appealed the first AAT decision to the Full Court of the Federal Court and the appeal was upheld. The Full Court found that the AAT had erred in its reasoning by assuming that if the applicant’s citizenship was revoked, he would be returned to Ireland. Instead, the applicant would have been granted an ex-citizen visa under section 35(3) of the Migration Act 1958 (Cth) and would have been exposed to the possibility of the Minister cancelling that visa under section 501(2) or 501(3) of the Migration Act. The case was remitted to the AAT for reconsideration. The AAT again upheld the Minister’s decision to revoke the applicant’s citizenship and the applicant appealed to the Federal Court.
The central legal issues in the appeal were whether the AAT had correctly interpreted the phrase “public interest” when considering whether to uphold the Minister’s decision to revoke the applicant’s citizenship and whether the AAT had correctly considered the effect of the applicant’s renunciation of his Irish citizenship. The Court found that the AAT had not erred in law in its consideration of the public interest and had appropriately weighed the relevant factors in deciding that it would be contrary to the public interest for the applicant to retain his Australian citizenship. The Court also found that the AAT had not erred in considering the applicant’s renunciation of his Irish citizenship, noting that the issue was not before the Court. The appeal was dismissed with costs.

Orders

Orders of the court

1. The appeal be dismissed with costs.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

Background

Background to the litigation

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. Background The applicant was born in November 1934 in Ireland and was an Irish citizen from birth. He migrated to Australia from Ireland in 1959 at the age of 25 after having been ordained as a Catholic priest. He served the Catholic Church in that capacity until 2000 and ceased priestly duties in 2009. The applicant applied for Australian citizenship in 1992 and it was granted on 26 January 1993. In 2012, the applicant was charged with eight counts of historical sexual offences against minors, committed between 1961 and 1987 during the time he was an ordained priest. The offences were one count of rape, three counts of indecent assault on a child under the age of 16, and four counts of indecent assault. The complainants were three girls who were between the ages of 10 and 17 when the offences were committed. The applicant pleaded not guilty and 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, when he was 79 years of age, he was sentenced to a term of eight years imprisonment with a non-parole period of four years. Tupman DCJ noted on sentencing, among other matters, that the offending was part of a course of conduct and there was no evidence of remorse and contrition, but because of age and medical factors the chances of re-offending were remote. As already noted, on 5 May 2016, the Minister made a decision under s 34(2) of the Citizenship Act to revoke the applicant’s citizenship. On 20 June 2016, the applicant filed an application for review of the decision with the Tribunal. The application sought from the Tribunal that it set aside the decision of the Minister to revoke his citizenship. On 13 October 2016, the applicant submitted a declaration of alienage to the Government of Ireland purporting to renounce his Irish citizenship. By letter dated 25 January 2017, the Irish Naturalisation and Immigration Service advised the applicant that: Under the provisions of Section 21 of the Irish Nationality and Citizenship Act 1956, as substituted by Section 7 of the 1986 Act, you will 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. On 28 July 2017, the applicant’s application for a review of the Minister’s decision was heard for the first time by the Tribunal constituted by the Hon Justice Stevenson, Deputy President. On 14 December 2017, the first Tribunal set aside the 5 May 2016 decision of the Minister. It did so on the basis that it would not be contrary to the public interest for the applicant to retain his Australian citizenship pursuant to s 34(2) of the Citizenship Act. An underlying premise of the first Tribunal’s reasoning was that if the applicant’s citizenship was cancelled he would be returned to Ireland.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

On 4 August 2020, the second Tribunal affirmed the decision of the Minister to revoke the applicant’s Australian citizenship. It is an appeal from this decision that is now before this Court.The second Tribunal hearing and decision After setting out the relevant background to the proceeding and the relevant legislation, the Tribunal put the issues for determination in the following way (at [17]):•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 did not dispute that the applicant fell within the provisions of s 34(2)(a) and (b)(ii) of the Citizenship Act. It was also not disputed that s 34(3)(a) was satisfied. After summarising the material evidence, the Tribunal turned to each of the two issues it had identified as requiring consideration.Contrary to the public interest The Tribunal addressed the first issue for determination, characterising it as “whether it would be contrary to the public interest for the applicant to retain his Australian citizenship”: at [44]. In characterising the issue in this way, the Tribunal did not expressly identify, as it had done in its first dot point at [17] (quoted at [35] above), that if the Tribunal were satisfied that it would be contrary to the public interest for the applicant to remain an Australian citizen it would then need to consider whether it was satisfied that it should exercise its discretion in s 34(2) of the Citizenship Act to revoke the applicant’s Australian citizenship. As will be seen, the applicant places some reliance on this in the appeal in this Court. The Tribunal set out a number of authorities relevant to the interpretation of the phrase “public interest”: at [46]-[51]. It thereafter addressed a number of considerations. These included the seriousness of the applicant’s convictions, his lack of remorse, failure to accept that he received a fair trial, breaches by him of his bail conditions, his age and state of health, and his chance of re-offending being low but there nevertheless being a risk of reoffending in the right circumstances: at [52]-[64], [68]-[70], [78]-[79]. The applicant had put into evidence the Ray Hadley interview mentioned above (at [18]). He said that the comments made by the Minister were 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 his visa. To this submission, the Tribunal noted comments in Ayoub v Minister for Immigration and Border Protection [2015] FCAFC 83; 231 FCR 513 at [19] (Flick, Griffiths and Perry JJ) that “future exercises of discretion and statutory power are to be resolved when they arise” and therefore it was a future matter for the Minister: at [65]-[67]. Relevantly, the applicant’s removal from Australia to Ireland would not necessarily follow from the Tribunal decision.

Ratio Decidendi

Legal Principle Established

On 9 October 2018, the Full Court per Perram J, Allsop CJ and Jagot J agreeing, gave judgment on the Minister’s challenges to the first Tribunal decision. The judgment is published as Minister for Immigration and Border Protection v Egan [2018] FCAFC 169; 261 FCR 451. In the proceeding the Minister had submitted that the premise underlying the reasoning of the first Tribunal, namely, that if the applicant’s citizenship was cancelled he would be removed from Australia, was wrong. That was on the basis that at the moment that his citizenship was cancelled, the applicant would be taken to have been granted an ex-citizen visa under s 35(3) of the Migration Act 1958 (Cth). He would thus not be removed from Australia until some ultimate decision was made under s 500, s 501 or s 501CA of the Migration Act and it would be only then that the deportation issues would be relevant. The Full Court relevantly said (at [16]):The consequence for the respondent if his citizenship were revoked was not, as the Tribunal assumed, that he would be repatriated to Ireland, at least not immediately. It was instead twofold: first, he would be immediately taken to have been granted an ex-citizen visa by force of s 35(3) of the Migration Act 1958 (“A person who, on or after 1 September 1994, ceases to be an Australian citizen while in the migration zone is taken to have been granted an ex-citizen visa when that citizenship ceases.”); secondly, he would then be exposed to the possibility that the Minister might exercise a power to cancel that visa on character grounds under s 501(2) or s 501(3) of the Migration Act or, if not cancelled in that way, it might automatically be cancelled under s 501(3A). On that basis, the Full Court allowed the Minister’s challenge to the decision of the first Tribunal. In commenting (at [27]) on the application for relief under s 39B of the Judiciary Act, the Full Court noted that the reason the Minister sought a writ of certiorari and declarations was because of the applicant’s attempted renunciation of his Irish citizenship on 13 October 2016. The Full Court made brief comments on the Irish citizenship issue (at [27]-[32]) but made no findings on it because the “citizenship argument is not before the Court”. Accordingly, no orders were made in that regard. The Full Court therefore ordered (at [34]) that the appeal be allowed, the decision of the first Tribunal be set aside, and that the case be remitted to the Tribunal to be decided again in such manner as it deems appropriate and constituted as it sees fit. This returned the applicant to not being an Australian citizen. Whether, if he had lost his Irish citizenship when the first Tribunal reinstated his Australian citizenship, he then once again became an Irish citizen or was stateless is a point to which we will return. On 20 December 2018, the applicant was dismissed by the Catholic Church from the clerical state. On 18 and 19 December 2019, the second Tribunal hearing took place following the remittal orders of the Full Court in the first appeal. The second Tribunal was constituted the Hon John Pascoe AO CVO, Deputy President.