Jones and Minister for Immigration, Citizenship and Multicultural Affairs (Citizenship)
[2024] AATA 2705
•1 August 2024
Jones and Minister for Immigration, Citizenship and Multicultural Affairs (Citizenship) [2024] AATA 2705 (1 August 2024)
Division:GENERAL DIVISION
File Number(s): 2023/9190
Re:Phyllip John Jones
APPLICANT
AndMinister for Immigration, Citizenship and Multicultural Affairs
RESPONDENT
DECISION
Tribunal:Senior Member B J Illingworth
Date:1 August 2024
Place:Adelaide
Pursuant to s 29(7) of the Administrative Appeals Tribunal Act 1975 (Cth), Mr Jones’ application for an extension of time within which to seek review of the Minister’s decision dated 9 July 2018 is granted. Time is extended to 6 December 2023.
......[sgnd]..................................................................
Senior Member B J Illingworth
CATCHWORDS
PRACTICE AND PROCEDURE - interlocutory application – extension of time – application to review revocation of Australian citizenship over five years out of time – revocation of Australian citizenship resulting in grant of ex-citizen visa – subsequent cancellation of ex-citizen visa on character grounds – whether it is arguable that the Ministerial revocation discretion miscarried and was for the purpose of retribution, denunciation or deterrence – merits of application, potential miscarriage of justice, and fairness to the Applicant weigh heavily in Applicant’s favour – application for extension of time granted
LEGISLATION
Administrative Appeals Tribunal Act 1975 (Cth)
Administrative Decisions (Judicial Review) Act 1977 (Cth)
Australian Citizenship Act 2007 (Cth)
Judiciary Act 1903 (Cth)
Migration Act 1958 (Cth)CASES
Brown v Federal Commissioner of Taxation (1999) 42 ATR 118
Director of Public Prosecutions v Smith (1991) VR 63
Goldfinch and K & S Freighters Pty Limited [2019] AATA 33
Hunter Valley Developments Pty Ltd v Cohen (1984) ALR 305; [1984] FCA 176
Jones v Commonwealth of Australia [2023] HCA 34
Quach v RU [2024] FCAFC 32
McKinnon v Secretary, Department of Treasury (2005) FCAFC 142
Rauhina and Minister for Immigration, Citizenship and Multicultural Affairs [2024] AATA 34
Re Mulheron and Australian Telecommunications Corporation (1991) 23 ALD 309REASONS FOR DECISION
Senior Member B J Illingworth
1 August 2024
INTRODUCTION
This is an interlocutory application for an extension of time within which to bring an application to review a decision made on 9 July 2018 (the Revocation Decision) of the then Minister for Home Affairs, Immigration and Border Protection (now the Minister for Immigration, Citizenship and Multicultural Affairs) (the Respondent or the Minister), revoking the Applicant’s Australian citizenship, made pursuant to s 34(2)(b)(ii) and (c) of the Australian Citizenship Act 2007 (Cth) (the Act).
The Applicant was advised of the Revocation Decision by letter from the Department of Home Affairs dated 11 July 2018 (the Notification Letter). [1] A copy of the Instrument of Revocation dated 9 July 2018 (the Instrument) was attached to that letter.[2] A copy of the Ministers Statement of Reasons dated 9 July 2018 (the Statement of Reasons) was also attached.[3]
[1] Exhibit A, Tab JT4, document A3, 48-51 and A9, 342-345.
[2] Exhibit A, Tab JT4, document A3, 52 and A9, 345.
[3] Exhibit A, Tab JT4, document A3, 53-57; and A9, 347-351.
The Applicant was represented by Sebastian Hartford Davis of Banco Chambers and Samuel Hoare of New Chambers on instructions from Zoe Prince of Carina Ford Immigration Lawyers. The Respondent was represented by Thomas Liu of 7 Wentworth Selborne on instructions from Grace Ng of Australian Government Solicitor. The Applicant who was in immigration detention did not appear at the interlocutory hearing. The Tribunal received into evidence a joint hearing book (Exhibit A).
BACKGROUND
The Applicant was born in the United Kingdom on 22 November 1950. He migrated to Australia in 1966 and in 1988 he applied for, and was granted, Australian citizenship. He was thereafter a dual citizen of both the United Kingdom and Australia. He has not returned to the United Kingdom since arriving in Australia.
In 2003, the Applicant was convicted in the District Court of Queensland of five counts of indecent dealing and indecent assault involving two children, committed between 1980 and 2001. Two of those counts related to conduct committed before he became an Australian citizen. The Applicant was sentenced on each of the five counts to imprisonment for two and a half years to be served concurrently with each other, with a non-parole period of nine months. The Applicant did not apply for parole and served the whole of his head sentence.
By letter dated 18 October 2017 headed ‘Possible revocation of your Australian Citizenship,’ the Applicant was advised by the Respondent that the Minister had power to, and may consider, revoking the Applicant’s citizenship, but before doing so gave the Applicant the opportunity to comment.[4] The Applicant provided a response,[5] together with a handwritten statement and statutory declarations of others in support.[6]
[4] Exhibit A, Tab JT6(b), 497-499.
[5] Exhibit A, Tab JT6(d), 506-509.
[6] Exhibit A, Tab JT6(d), 510-516.
On 9 July 2018, the Minister exercised his discretion under s 34(2) of the Act and revoked the Applicant’s Australian citizenship. At that time, the Applicant had been an Australian citizen for 29 years and had lived in Australia continuously for 52 years. The Revocation Decision was approximately 15 years after his criminal conviction. He briefly left Australia twice and travelled on an Australian passport.[7]
[7] See Jones v Commonwealth of Australia [2023] HCA 34 [5]–[8].
The Revocation Decision advised the Applicant of his right to apply to the Administrative Appeals Tribunal (the AAT or Tribunal) to review the Revocation Decision within 28 days after the day on which he received the Notification Letter.
In the Notification Letter and also the Statement of Reasons, the Applicant was advised that pursuant to s 35 of the Migration Act 1958 (Cth) (the Migration Act) and because the Applicant remained in the migration zone following the revocation of his Australian citizenship, he was taken to have been granted an ex-citizen visa. That visa permitted the Applicant to remain in Australia as a lawful non-citizen but ceased if the Applicant departed Australia. If he intended to return, he would be required to apply for and be granted a visa permitting him to enter Australia.[8]
[8] Jones v Commonwealth of Australia [2023] HCA 34 [9]; Exhibit A, Tab JT4, Document A3,48, 56.
The Applicant did not apply to the AAT to review the Revocation Decision within the 28-day period. The Applicant gave two reasons for not doing so, namely (a) that he understood the Revocation Decision to be a further punishment for his criminal behaviour which he accepted, and (b) although disappointed to lose his Australian citizenship, he was grateful that he was able to remain permanently in Australia by virtue of his ex-citizen visa.
Neither the Notification Letter, nor the Statement of Reasons, informed the Applicant that he remained liable for the cancellation of his ex-citizen visa pursuant to s 501(2) of the Migration Act.
Approximately two years later, by letter dated 20 May 2020, the Applicant was notified that consideration would be given whether to cancel the ex-citizen visa on character grounds under s 501(2) of the Migration Act. This letter was superseded by a ‘Notice of intention to consider cancellation under s 501(2) of the Migration Act 1958’, dated 3 December 2020.[9]
[9] Exhibit A, Tab JT4, Document A4,59-63.
By ‘Notice of visa cancellation under subsection 501(2) of the Migration Act 1958’, dated 22 December 2021, the Applicant was advised that on 24 November 2021 the Minister decided to cancel the Applicant’s ex-citizen visa under s 501(2) of the Migration Act (the Visa Cancellation Decision),[10] and on 14 January 2022 the Applicant was taken into immigration detention where he has remained.[11]
[10] Exhibit A, Tab JT4, document A5, 65-236; Jones v Commonwealth [2023] HCA 34, [10].
[11] Jones v Commonwealth of Australia [2023] HCA 34 [114].
The Applicant challenged the visa cancellation and on appeal both the Federal Court of Australia (the Federal Court), and subsequently the Full Court of the Federal Court, delivered decisions on 29 March 2022 and 22 August 2022 respectively, upholding the validity of the ex-citizen visa cancellation.
On 2 March 2023, the Applicant filed proceedings in the original jurisdiction of the High Court of Australia (the High Court) challenging the validity of s 34(2)(b)(ii) of the Act.[12] In the decision delivered on 1 November 2023 in Jones v Commonwealth of Australia[13] (Jones), the High Court at paragraphs two to four summarised the proceedings as follows:
The proceeding in the original jurisdiction of the High Court which gives rise to the special case involves a challenge to the validity of s 34(2)(b)(ii) … in its application to a person who is a national or citizen of another country and who became an Australian citizen by virtue of a grant of a certificate of Australian citizenship … The challenged provision, as will be seen, operates to empower a Minister administering the Citizenship Act to revoke the Australian citizenship of such a person if the person is convicted of and sentenced to imprisonment for a period of at least 12 months for an offence committed before the person became an Australian citizen and if the Minister is satisfied that it would be contrary to the public interest for the person to remain an Australian citizen.
The substantive question raised in the special case is whether the challenged provision is invalid in its application to such a person either because it is not supported by s 51(xix) of the Constitution or because it reposes in the Minister the exclusively judicial function of punishing criminal guilt contrary to Ch III of the Constitution.
The short answer is that the provision is valid. It provides for “an act or process of denaturalization” … The power it confers on the Minister … is not a power to punish criminal guilt and is not otherwise exclusively judicial.[14]
[12] Exhibit A, Tab JT4, Document A9,309.
[13] [2023] HCA 34.
[14] Ibid [2] - [4] (citations omitted).
The Applicant said that as a consequence of the High Court decision he then understood that the Revocation Decision was not a decision to penalise him for his criminal conduct, as he understood the Revocation Decision to be; and as a consequence, on 6 December 2023 he filed in the AAT an Application for Review of the Revocation Decision (the Application for Review) and an extension of time within which to do so.[15] His reasons for the application for an extension of time in summary included his misunderstanding at the time of the decision of the reason for the Revocation Decision, which in fact involved an improper or irrelevant purpose, namely retribution, denunciation and deterrence, that he received an ex-citizen visa as a consequence, which subsequent cancellation was unsuccessfully challenged, and that he only recently became aware of his right to apply for an extension of time within which to apply for review of the Revocation Decision.[16]
[15] Exhibit A, Tab JT1.
[16] Ibid.
On 21 February 2024, the Applicant also filed in the Federal Court an ‘Originating application for relief under section 39B Judiciary Act 1903’ (the s 39B Application) seeking an order in the nature of a writ of certiorari setting aside the Revocation Decision and a declaration that the Applicant is an Australian citizen.[17]
[17] Exhibit A, Tab JT6(h).
On 27 March 2024, in the s 39B Application, Bromwich J noted that the parties agreed that a determination of the Applicant’s judicial review application before the Federal Court should not proceed at the same time as the Applicant’s merits review application in respect of the same decision; and by consent ordered that the Respondent inform the Chambers of Bromwich J of the decision on the extension of time application before the Tribunal, within seven days of it being made.[18]
[18] Exhibit A, Tab JT6(i).
The Act
The relevant provisions in the Act are as follows:
Section 34 Revocation by Minister – offences or fraud
…
Citizenship by conferral
(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:
(i)the person has been convicted of an offence against section 50 of this Act, or section 137.1 or 137.2 of the Criminal Code, in relation to the person’s application to become an Australian citizen;
(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);
(iii)the person obtained the Minister’s approval to become an Australian citizen as a result of migration‑related fraud within the meaning of subsection (6);
(iv)the person obtained the Minister’s approval to become an Australian citizen as a result of third‑party fraud within the meaning of subsection (8); and
(c)the Minister is satisfied that it would be contrary to the public interest for the person to remain an Australian citizen.
(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.
…
Serious offence
(5)For the purposes of this section, a person has been convicted of a serious offence if:
(a)the person has been convicted of an offence against an Australian law or a foreign law, for which the person has been sentenced to death or to a serious prison sentence; and
(b)the person committed the offence at any time before the person became an Australian citizen.
…
Section 3 Definitions
…
serious prison sentence means a sentence of imprisonment for a period of at least 12 months.[19]
[19] Australian Citizenship Act 2007 (Cth) s 34.
The Revocation Decision
The Applicant committed two offences prior to becoming an Australian citizen, both of which attracted sentences of imprisonment of at least 12 months, namely two and a half years for each offence, which were, together with the same sentences imposed for post citizenship offending, to be served concurrently. It was those two offences committed prior to the grant of Australian citizenship, for which he was convicted after the grant of Australian citizenship, that enlivened the legislative scheme and the Minister’s discretion under s 34(2)(c) of the Act to revoke the Applicant’s Australian citizenship on the basis that it would be contrary to the public interest for the Applicant to remain an Australian citizen.
In the Statement of Reasons, the Minister under the heading ‘Public interest consideration’, noted at paragraphs 12 to 13 that s 34(2)(c) of the Act required consideration of whether it would be contrary to the public interest for the Applicant to remain an Australian citizen, and referred to guidance on the meaning of what is in the public interest as considered in the decisions of Director of Public Prosecutions v Smith (1991)[20] and McKinnon v Secretary, Department of Treasury,[21] and then said at paragraphs to 14 to 17:
The Government is committed to protecting the Australian community from harm as a result of criminal activity. In considering the nature and seriousness of Mr Jones [sic] criminal offending, to which he pleaded guilty, I take the view that offences against children are very serious and are contrary to community values. I have also taken into consideration that the offending was not isolated, occurred over a significant period of time and involved two victims. In addition, I have considered that the offending also involved a breach of trust, due to Mr Jones' relationship with the victims.
I have considered the Court's statements that despite the mitigating factors they referred to including Mr Jones' own difficult upbringing and lack of other criminal offending, they considered the offending to be significant and imposed a two and a half year sentence of imprisonment.
`
I have taken into consideration Mr Jones' age and the period of time he has resided in Australia and that other than these offences he has no other criminal record. However, I have also considered the need for general deterrence in such cases and the community's views in respect of offending that involves children.
Having balanced the nature of Mr Jones' offending against mitigating factors, I am satisfied for the purposes of section 34(2)(c) of the Citizenship Act that it would be contrary to the public interest for Mr Jones to remain an Australian citizen.[22]
[20] VR 63.
[21] (2005) FCAFC 142.
[22] Exhibit A, Tab JT4, Document A3 p 53-57.
Under a separate heading at paragraph 21 the Minister noted that if the Applicant’s Australian citizenship is revoked, he would by operation of law become the holder of an ex-citizen visa which would allow the Applicant to remain permanently in Australia and receive government assistance. This accords with s 35 of the Migration Act.
Under the heading ‘Conclusion’ the Minister referred to the balancing of those interests of the community, including the nature of the offending, and those of the Applicant. He said that the risk of reoffending was unacceptable when weighed against countervailing considerations to which he previously referred and then said at paragraph 26 that ‘I have also considered the need for general deterrence and the community’s views of sexual offending involving children’ and concluded ‘it would be contrary to the public interest for [the Applicant] to remain an Australian citizen’ and exercised his discretion to revoke the Applicant’s Australian citizenship.[23]
[23] Ibid 57.
The High Court decision - Jones
The High Court explained the purpose and approach by a relevant Minister in determining the question of revocation of Australian citizenship. The plurality of the High Court said that in regards to a person in the position of the Applicant, the legislative scheme ‘is reasonably capable of being seen as necessary to protect the integrity of the naturalisation process ...’[24] The High Court then said that the effect of s 34(2)(b)(ii) of the Act placed a person such as the Applicant in no greater jeopardy of denaturalisation than he faced when applying for Australian citizenship,[25] and then said:
The effect of s 34(2)(b)(ii) … was to permit what had been considered and done administratively to be reconsidered and undone administratively if at any time later a criminal conviction were to demonstrate the original decision to have been made on materially incorrect or incomplete information.[26]
[24] Jones v Commonwealth of Australia [2023] HCA 34, [50].
[25] Ibid [51].
[26] Ibid.
In explaining the operation of the Minister’s discretion, the High Court said at paragraphs 54 to 55:
The requirement of s 34(2)(c) that the Minister be satisfied that it would be contrary to the public interest for the person whose citizenship is revoked to remain an Australian citizen furthers the purpose of protecting the integrity of the naturalisation process … by facilitating reconsideration of the critical question whether the person was of good character at the time of grant without constraining the capacity of the Minister to have regard to subsequent rehabilitation and integration into the Australian community. Were the Minister to purport to invoke the power of revocation of the Australian citizenship of someone convicted of a serious crime for the purposes of retribution, denunciation or deterrence under the guise of being satisfied that it would be contrary to the public interest for that person to remain an Australian citizen, the purported exercise of power would be unauthorised on the basis that the power would have been exercised for an extraneous and improper purpose.
Once it is understood that s 34(2) would not authorise the Minister to revoke the Australian citizenship of someone convicted of a serious crime for a purpose of retribution, denunciation or deterrence, the absence of a time limit within which the Minister is required to exercise the power after the date of conviction cannot detract from the non-punitive character of s 34(2)(b)(ii) established by the combination of features to which reference has been made.[27]
[27] Ibid [54]-[55] citations omitted.
In similar terms, Gordon J said at paragraph 93 that ‘[s]ection 34(2)(c) asks the Minister to consider reasons why it might now be contrary to the public interest for the person to remain an Australian citizen’ which ‘classically imports a discretionary value judgement to be made by reference to undefined factual matters…’[28] At paragraph 94 Her Honour said in regards to the exercise of power that ‘it cannot be validly exercised for an extraneous or improper purpose … the distinction between a punitive and protective (or non-punitive) purpose can be elusive.’[29] Her Honour said that what cannot be taken into account in the exercise of the power, namely retribution, denunciation or deterrence, does not inform what might be considered.[30]
[28] Ibid [93].
[29] Ibid [94].
[30] Ibid.
In relation to the argument by the Applicant that s 34(2)(b)(ii) of the Act was punitive and therefore the s 34(2)(c) decision of the Minister was invalid, Edelman J at paragraph 181 said:
… the application by the Minister of s 34(2)(c) will be invalid if it involves any purpose other than the protection of the integrity of the naturalisation process. Even if the existence of an illegitimate purpose is not express in reasons given by the Minister for revocation, the illegitimate purpose might be inferred from the circumstances.[31]
[31] Ibid 181.
The Application for Review and extension of time
The applications for review and extension of time were received by the AAT on 6 December 2023. The Application for Review was filed approximately five and a half years out of time. The outline of the reasons for the extension of time read as follows:
In summary, the reasons for extension of time include, but are not limited to:
1) The applicant was recently the plaintiff in proceedings in the High Court, namely Jones v Commonwealth & Ors [2023] HCA 34. The proceedings concerned a challenge to the validity of s34(2)(b)(ii) of the Australian Citizenship Act 2007, which was the power used by the then-Minister, the Hon Peter Dutton MP, to revoke the applicant's Australian citizenship by decision dated 9 July 2018 (revocation decision). In light of the plurality's reasons for judgment, especially at [54], it is apparent from the reasons for revocation of the applicant's citizenship that the decision involved legal error, namely in that it was for improper and/or irrelevant purposes such as retribution, denunciation and deterrence.
2) At the time of the revocation decision, the applicant believed the loss of his citizenship was appropriate punishment for his criminal offending. Consequently, he did not then avail himself of merits or judicial review avenues challenging the revocation decision. As a result of the High Court's judgment in Jones, he is now aware that "punishment" is not a proper or legitimate aim or purpose for a decision to revoke his citizenship.
3) When the applicant's citizenship was revoked, he'd retain an ex-citizen visa allowing him to remain permanently in Australia. However, he was later notified his ex-citizen visa was being considered for cancellation under s501, and he retained legal representation and lodged submissions and evidence asking that his visa not be cancelled. His ex-citizen visa was cancelled on 24 November 2021 by the then-Minister, the Hon Alex Hawke MP, under s501(2) of the Migration Act 1958 (visa cancellation decision). On 14 January 2022, he was taken into immigration detention under s189 of the Migration Act. He applied for judicial review in relation to the visa cancellation decision to the Federal Court of Australia, and both his application and appeal was dismissed: Jones v MICMSMA [2022] FCA 285 and Jones v MICMSMA [2022] FCAFC 137.
4) The applicant only recently became aware he could apply out of time to the Tribunal for merits review of the Minister's decision to revoke his citizenship.[32]
[32] Exhibit A, Tab JT1, 6.
The reasons for the Application for Review
The reasons for the Application for Review and why it is said that the Revocation Decision is wrong are pleaded as follows:
In addition to the reasons already canvassed regarding the decision being for improper and/or irrelevant purposes, the decision is wrong because:
1) the applicant's integration into the Australian community subsequent to the decision to grant him Australian citizenship on 21 December 1988; and
2) the applicant's rehabilitation, especially during and subsequent to his imprisonment, noting he has not re-offended in any manner since his release from custody on 26 November 2005.[33]
[33] Ibid.
Extension of time
In the case of Hunter Valley Developments Pty Ltd v Cohen[34] (Hunter Valley), Wilcox J sets out a number of non‑exhaustive criteria that can be taken as a guideline for the Tribunal’s determination of extension of time applications. The criteria can be summarised as:
(a)whether the Applicant has shown an acceptable explanation for the delay and that it is fair and equitable in the circumstances to extend time;
(b)whether the Applicant has rested on his/her rights and allowed the decision-maker to believe that the matter has finally concluded;
(c)whether there has been any prejudice to the Respondent as a result of the delay in the making of the application;
(d)whether the Respondent or the general public would suffer any prejudice as a result of the granting of the extension of time;
(e)whether there is merit in the substantive application; and
(f)more generally, the considerations of fairness as between the Applicant and other persons in a similar position.[35]
[34] (1984) ALR 305; [1984] FCA 176.
[35] Ibid 310-311.
I acknowledge that the decision in Hunter Valley was concerned with an extension of time in a different statutory context, namely under the Administrative Decisions (Judicial Review) Act 1977 (Cth). However, I note that Hunter Valley has been cited with approval by numerous Tribunal decisions, although with the caveat that ‘[t]oo slavish’ an adherence to the Hunter Valley guidelines should be avoided.[36]
[36] Brown v Federal Commissioner of Taxation (1999) 42 ATR 118, 128 [41] (Hill J).
The criteria in Hunter Valley are not fixed but provide guidance.
The Full Court of the Federal Court in Quach v RU[37] at paragraph 24 summarised the considerations to take in account when granting an extension of time as:
(1) the length of the delay;
(2)whether the applicant has demonstrated an acceptable explanation for the delay;
(3)whether the respondent would suffer prejudice if the extension of time were granted; and
(4) the merits of the substantive appeal, if the extension of time was granted.[38]
[37] [2024] FCAFC 32.
[38] Ibid [24].
The Respondent also referred to Deputy President O’Conner in Re Mulheron and Australian Telecommunications Corporation[39] at paragraph 17, who said as follows:
The principles to be applied in considering an application for extension of time under s 29(7) were considered by Deputy President Todd in Re Johnson and Commonwealth of Australia (unreported, No 5619, 5 January 1990). Briefly, these are:
(a) Prima facie proceedings commenced outside the prescribed period will not be entertained. An extension of time will be granted, however, if it is proper to do so.
(b) It is relevant whether the applicant rested on his rights or took action to make the decision-maker aware that the decision was being contested.
(c) Any prejudice to the respondent that would be caused by granting the extension of time is relevant.
(d) Any wider prejudice to the general public in terms of disruption to established practices is relevant.
(e) The merits of the substantial application are relevant.
(f) Fairness of granting the extension of time as between the applicant and other persons in a like position is relevant.[40]
[39] (1991) 23 ALD 309.
[40] Ibid [17].
I will now deal with the matters to be considered by the Tribunal, starting with the merits of the application.
Merits of the Application for Review
The purpose of judicial review proceedings pursuant to s 39B of the Judiciary Act 1903 (Cth) (the Judiciary Act) before the Federal Court is to determine the lawfulness of a decision, and in this matter, the Revocation Decision.
This is to be contrasted with an application to review a decision under the Administrative Appeals Tribunal Act 1975 (Cth) (the AAT Act), which is a merits review to determine the correct or preferable decision in all the circumstances and is a different question to the lawfulness of the decision under challenge.
Hence, a merits review is a hearing de novo, in which the matter will be heard afresh, including evidence that was before the original decision-maker, and such further or other evidence adduced at the hearing. The Tribunal will then weigh the evidence, and the public interest consideration in the operation of the discretion in s 34(2)(c) of the Act, as informed by the High Court in Jones, in deciding whether the Revocation Decision should be affirmed, varied, or set aside, and make a decision in substitution or remit the matter for reconsideration in accordance with any directions or recommendations.[41]
[41] See Administrative Appeals Tribunal Act 1975 (Cth) s 43.
A question that arises on this application for extension of time is whether the substantive application for review is arguable. Put another way, was the Minister properly satisfied that it would be contrary to the public interest for the applicant to remain an Australian citizen?
The Applicant referred to the approach to be taken by the Minister in considering revocation of the Applicants citizenship as discussed in Jones. The High Court, in discussing the requirement of s 34(2)(c), said that the Ministerial discretion furthered the process of protecting the integrity of the naturalisation process which was facilitated by the ‘critical question whether [the Applicant] was of good character at the time of grant’ of Australian citizenship, namely in 1988. The High Court also said that the Ministerial discretion was not constrained from having regard to subsequent rehabilitation and integration into the Australian community.
Hence, it is argued that the first question should be whether at the time of grant of Australian Citizenship in 1988, the Applicant was a person of good character, taking into account the offences committed prior to that grant. If the answer to that question is yes, the Minister is not constrained in having regard to subsequent rehabilitation and integration into the Australian community in determining whether it would be contrary to the public interest for the Applicant to remain an Australian citizen. That consideration would also take into account the post 1988 offending.
It is further argued by the Applicant that the Minister failed to first give separate consideration to the two offences committed prior to the 1988 grant of Australian citizenship in determining whether the Applicant was a person of good character and, if upon reaching an affirmative answer, then consider those subsequent factors in deciding whether it would be contrary to the public interest that he remain an Australian citizen.
The language used by the Minister in the Statement of Reasons to which I refer at paragraph 21 above indicates that he gave consideration to the protection of the Australian community, the nature and seriousness of the applicant’s offending as a whole, including the period of time over which the whole of the offending occurred, that the offending was not isolated and involved a breach of trust, the need for general deterrence, and community views about offences involving children, in a holistic approach in coming to the decision to revoke his Australian citizenship.
The Applicant submits that, when viewed in that way, it is arguable that the Minister did not first determine the critical question of whether at the time of grant of Australian citizenship the Applicant was a person of good character, and then without the constraint of having regard to other relevant considerations, decide whether at the time of the Minister’s decision in 2018 it might then be contrary to the public interest for the applicant to remain an Australian citizen.
The Applicant also argues that the Revocation Decision of the Minister invoked considerations of retribution, denunciation or deterrence and was in the nature of a punishment of the Applicant. It is argued that the Minister’s reference to general deterrence, and the community abhorrence of sexual offending against children, gives strength to that argument. Should it be determined that retribution, denunciation, or deterrence has been considered under the guise of the public interest consideration by the Minister in revoking the Applicant’s Australian citizenship, the exercise of the discretion would be unauthorised, having been used for an extraneous and improper purpose, and would be invalid.
The term general deterrence is a well-recognised principle to be applied when a sentencing judge sentences a criminal offender. Its purpose is to inform the public and potential offenders of the likely sentence for the relevant offending and to deter others from committing similar offences. The fact that the Minister in his Statement of Reasons referred to general deterrence as a relevant consideration in the operation of his discretion, is arguably difficult to understand as a relevant factor in the determination of the good character of the applicant at the time of the grant of citizenship, the protection of the integrity of the naturalisation process, and the consideration of other factors to be taken into account in deciding whether it was contrary to the public interest that the Applicant remain an Australian citizen.
The Respondent argued that the Applicant has available another avenue of relief by challenging the revocation decision in the Federal Court under the s 39B Application and submits that the Federal Court is the more appropriate place to agitate the issues raised, and that accordingly the application for extension of time should not be granted.
However, the fact that an alternate avenue to seek relief is available should not of itself deny the Applicant the opportunity to pursue a merits review if, in the circumstances of the matter, an extension of time is appropriate. If the extension of time is granted, it may then be a matter for the Applicant to elect which relief he pursues.
Explanation for the delay; whether the Applicant rested on his rights; and considerations of fairness
The Application for Review is five and a half years out of time which is significant and would generally weigh against the grant of an extension of time. As was observed by Deputy President O’Conner in Re Mulheron, ‘[p]rima facie proceedings commenced outside the prescribed period will not be entertained’. The Applicant’s explanation for the delay, namely that he did not know until the High Court decision that the revocation of Australian Citizenship was not a punishment, demonstrates an ignorance of the law as it relates to the revocation of Australian citizenship, and that ignorance would generally not afford much weight in favour of an application to extend time within which to bring an application for review.
However, the Statement of Reasons arguably, by its wording, may have contributed to the misunderstanding by the Applicant that the revocation of his Australian citizenship was a further punishment, which is a factor to be taken into account in relation to the question of the extension of time.
It is not disputed that the Applicant genuinely believed that, despite the revocation of Australian citizenship, he was granted an ex-citizen visa which permitted him to remain permanently in Australia and continue to be entitled to government assistance. I accept that gave the Applicant comfort and certainty about his future. In that sense, it could be understood that the Applicant therefore rested on his rights as he understood those rights to be, and in particular that he received a further punishment for his criminal offending which he accepted, but was permitted to remain in Australia. I note the Statement of Reasons and the Notification Letter did not inform the Applicant otherwise.
The Applicant did not know and could not be expected to know that he remained at risk of the ex-citizen visa being revoked on the same factual considerations that gave rise to the revocation of his Australian citizenship. It was not until approximately two years after the revocation of citizenship that he received the notice of intention to consider cancellation of his ex-citizen visa[42] and approximately 12 months later on 22 December 2021 that he received the ‘Notice of Visa Cancellation Under Subsection 501(2) of the Migration Act 1958’,[43] together with the Statement of Reasons for that decision and other documents considered.
[42] Exhibit A, Tab JT4, Document A4,59-63.
[43] Exhibit A, Tab JT4, Document A5,65-68.
The Applicant vigorously pursued his rights to revoke the ex-citizen visa cancellation including on appeal to the Federal Court. It was after the unsuccessful appeal process that the Applicant brought the High Court challenge to the validity of s 34(2)(b)(ii) of the Act, which then informed him about the matters to be considered by the Minister in the operation of the discretion to revoke his Australian citizenship, and that the procedure was not one of further punishment.
Most applications for extension of time involve a final decision, which if unchallenged, could allow the decision-maker to believe that the matter in dispute is finally concluded. That is a factor that generally weighs against the grant of an extension of time within which to bring and application for review of a reviewable decision. It is expected that there will be finality in the decision-making process.
That expectation of finality in the decision-making process applies in this matter. However, in this matter, although the revocation of the Applicant’s Australian citizenship was a final decision made by the Minister, that decision did not finally conclude matters between the Minister and the Applicant; but gave rise to other consequences underpinned by what the applicant says is an arguably unauthorised and invalid revocation of Australian citizenship, leading to the grant of an ex-citizen visa which was subsequently cancelled.
This process had potentially serious and life changing consequences for the Applicant and his family, and the consideration of the fairness in granting an extension of time as between the Applicant and other persons in a like position.
In the circumstances of this matter there are a number of matters impacting on the fairness to the Applicant. They include:
(i)the arguable merit in the Application for Review and the proper weighing of the evidence relevant to the public interest consideration in s 34(2)(c) of the Act;
(ii)if the discretion arguably miscarried, it follows that the Australian citizenship revocation was arguably unauthorised and invalid, and the grant of the ex-citizen visa and visa cancellation were underpinned by an unauthorised and invalid decision;
(iii)to refuse the application for extension of time and the opportunity for the Applicant to pursue a merits review of the Revocation Decision may arguably give rise to a miscarriage of justice, in circumstances where he Revocation Decision may be unauthorised and invalid;
(iv)the Applicant’s misunderstanding about the purpose of the Minister’s Revocation Decision, namely that it was a further punishment for his offending which he accepted, particularly when viewed against the Statement of Reasons;
(v)the Applicant’s belief that he remained a permanent Australian resident in circumstances where he would not be expected to know that his ex-citizen visa remained at risk and no information was provided to him in the Statement of Reasons and grant of ex-citizen visa;
(vi)the passage of time from the criminal conviction to Revocation Decision and visa Cancellation Decision;
(vii)the devastating consequence to the applicant and his family which would likely result from his relocation to the United Kingdom; and
(viii)and matters personal to the Applicant.
Prejudice to the Respondent
I have considered whether the Respondent would suffer any prejudice from the grant of the extension of time. The Respondent has referred to the objects of the AAT Act as contained in s 2A and the decision in Goldfinch and K & S Freighters Pty Limited[44] and that the application of the principles in the AAT Act must occur alongside the ‘responsibility to make the “correct and preferable decision” on the basis of all material before it and to promote the “requirements of good government.”’[45]
[44] [2019] AATA 33.
[45] Exhibit A, JT5, Respondent’s Outline of Submissions Opposing Extension of Time [27]-[28].
The Respondent also referred to Rauhina and Minister for Immigration, Citizenship and Multicultural Affairs[46] (Rauhina) and the prejudice to the Respondent and the general public should the extension of time be granted, including the impact on a taxpayer funded entity and the current workload of the Respondent, and the need to know with a level of finality whether or not the matter is proceeding within the statutory timeframe. There, the Tribunal also discussed the absence of alternative avenues of challenge as a factor in favour of granting the extension of time, which is different in this matter.
[46] [2024] AATA 34.
Statutory timeframes play an important role in ensuring the efficiency in the administration of justice, the finality of decision-making and the efficiency and cost effectiveness of courts and tribunals. Those timeframes are expected to be adhered to. Nonetheless, there will be occasions when other factors will outweigh those considerations including those discussed in Rauhina.
Further, the absence of alternate avenues of challenge being a factor in favour of granting an extension of time does not mean that the converse applies to deny a grant of extension of time, particularly where the substantive application for review is arguable.
In argument, the Respondent also submits that if the extension of time is granted, the Applicant’s case would likely be required to be heard ahead of other matters legitimately before the AAT. That may be so, but if the substantive application is arguable, and the fairness and other considerations weigh in favour of the grant of the extension of time to enable a merits review to occur and the correct or preferable decision be made, then those factors will arguably outweigh the ‘jumping the queue’ of matters before the Tribunal.
Conclusion
The Ministerial discretion in s34(2)(c) of the Act to consider whether it would be contrary to the public interest for the Applicant to remain an Australian citizen was enlivened because (i) after the Applicant applied for, and was granted, Australian citizenship in 1988, he was subsequently convicted of a serious offence within the meaning of the Act, committed before he became an Australian citizen in accordance with ss 34(2)(b)(ii), and (ii) because upon revocation the Applicant remained a citizen of the United Kingdom as required in ss 34(3)(a) and (b).
Once enlivened it was for the Minister to be satisfied that it was contrary to the public interest for the Applicant to remain an Australian citizen in furtherance of protecting the integrity of the naturalisation process and by reconsidering whether the Applicant was of good character at the time of grant of citizenship, but without constraining the Ministers capacity to have regard to subsequent rehabilitation, integration into the Australia community and his offending post grant of Australian citizenship.
Importantly, the public interest consideration is directed to the furtherance of protecting the integrity of the naturalisation process, and if the discretion is used for an alternate process such as retribution, denunciation or deterrence, the purported exercise of the discretion is unauthorised and invalid.
I remain very conscious of the fact that the offences committed by the Applicant before the grant of Australian citizenship that enlivened the discretions in s 34(2)(c) of the Act to revoke the Applicant’s Australian citizenship were very serious and would be regarded as abhorrent by the Australian community. The same could be said of the offending post the grant of Australian citizenship. However, in this matter the comments of Gordon J in Jones at paragraph 92 are apposite, particularly when considering the weighing process, namely:
The greater the amount of time between conviction and revocation, the less revocation has to do with the state of affairs that existed at the time of naturalisation and the processes undertaken for that purpose, and the less it has to do with the conviction and the extent to which that conviction brings into question the integrity of the process of naturalisation. This case is illustrative. Whilst acknowledging that the plaintiff did not seek judicial review of the Minister's decision in this proceeding, one might ask what the revocation of the plaintiff's citizenship 15 years after conviction had to do with protecting the naturalisation process.[47]
[47] Jones v Commonwealth of Australia [2023] HCA 34 [92].
In this matter the Applicant understood that with the Revocation Decision came an ex-citizen visa, which permitted him to reside permanently in Australia, but should he leave Australia he would require a visa permitting him re-entry. He was prepared to accept that decision and its consequence albeit underpinned by a misunderstanding of the reason for the revocation of his Australian citizenship, namely that it was a punishment for his criminal offending. If that was the end of the matter, then a grant of extension of time to now review the Revocation Decision would be unlikely to succeed.
The Applicant was entitled to believe, as he then did, that the matters with the Respondent had reached a finality. They had not. What then followed was the cancellation of the Applicant’s ex-citizen visa, that was underpinned by a decision of the Minister to revoke the Applicant's Australian citizenship, which for reasons I will explain was arguably unauthorised and invalid.
The Ministers decision at paragraphs 14 to 17 of the Statement of Reasons starts with reference to the Government’s commitment to protecting the Australian community from harm and then refers to the nature and seriousness of the offending which involved a breach of trust. The Minister notes that despite the Applicant’s mitigating factors, the sentence of two and a half years imprisonment was significant, and despite the Applicants age, time he resided in the Australian community and absence of other offending, the Minister considered the need for general deterrence and community views about the offending in deciding to cancel his Australian citizenship.
It is arguably difficult to see how the Minister has used each of those considerations in applying the discretion in s 34(2)(b) of the Act. The Minister’s consideration, in particular of general deterrence, in the decision to cancel the Applicants Australian citizenship, arguably lends support to the Applicant’s submission that the Minister’s approach was one of retribution, denunciation or deterrence, as opposed to the protection of the integrity of the naturalisation process, and therefore the decision was arguably unauthorised and invalid.
In the words of Gordon J, ‘one might ask what the revocation of the plaintiff's citizenship 15 years after conviction had to do with protecting the naturalisation process’.[48] It is arguable that it is difficult to see from the Statement of Reasons, how the Minister has applied those considerations referable to protecting the integrity of the naturalisation process.
[48] Ibid.
The events that followed the Revocation Decision, namely the grant of the Applicant’s ex-citizen visa, the visa cancellation, his detention, possible relocation to the United Kingdom, and impact on his family were all underpinned by an arguably unauthorised and invalid decision. To allow that to continue may arguably give rise to a miscarriage of justice, which, together with the fairness considerations, are factors that weigh heavily in favour of the Applicant and granting the extension of time to enable him to agitate the issue he now raises with the Revocation Decision.
I remain very conscious of the fact that this application was filed five and a half years out of time. That would, in most circumstances, weigh heavily against the grant of an extension of time. I am also very conscious of the importance of the finality in proceedings and the prejudice to the Respondent and the public. However, the decision to revoke the Applicant’s Australian citizenship, which was arguably unauthorised and invalid, underpinned other significant consequences with a potentially devastating impact on the Applicant.
Hence the arguable merits of the application for review, the arguable miscarriage of justice should an unauthorised and invalid decision remain in force, together with the fairness to the Applicant, all weigh heavily in favour of the grant of the extension of time and outweigh the factors weighing against the application.
I am satisfied that the Applicant’s application for an extension of time within which to file the application for review should be granted and the time to do so extended to 6 December 2023 when the application for review was filed in the Tribunal.
DECISION
Pursuant to s 29(7) of the Administrative Appeals Tribunal Act 1975 (Cth), Mr Jones’ application for an extension of time within which to seek review of the Minister’s decision dated 9 July 2018 is granted. Time is extended to 6 December 2023.
I certify that the preceding seventy-six (76) paragraphs are a true copy of the reasons for the decision herein of Senior Member B J Illingworth
..[sgnd]...............................................
Associate
Dated: 1 August 2024
Date of hearing: 21 May 2024 Counsel for the Applicant:
Sebastian Hartford Davis,
Banco ChambersSamuel Hoare,
New ChambersInstructing Solicitor for the Applicant:
Zoe Prince,
Carina Ford Immigration LawyersCounsel for the Respondent:
Thomas Liu,
7 Wentworth SelborneInstructing Solicitor for the Respondent: Grace Ng,
Australian Government Solicitor
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