Makarov v Minister for Home Affairs (No 3)

Victor Makarov sought to have a decision of the Minister for Home Affairs to revoke his Australian citizenship quashed. The Minister had been satisfied that it would be contrary to the public interest for Mr Makarov to remain an Australian citizen by reason of his convictions of multiple sexual offences against minors. Mr Makarov was born in the former USSR and, when he was three years old, his family moved to Ukraine. He lived there until 1998 when he emigrated with his family in order to take up a position at the Australian Institute of Music. He was a Ukrainian national when he arrived in Australia. He applied for Australian citizenship and became an Australian citizen on 8 February 2001. He was arrested and imprisoned in late 2004. He was tried on nine charges and convicted of eight: three charges of aggravated indecent assault; two charges of sexual intercourse with a person under authority aged between 10 and 16; and three charges of homosexual intercourse by a teacher of a pupil between the ages of 10 and 16. The following year he was convicted of multiple sexual offences of a similar nature following another two trials. He was sentenced to a total of 12 years imprisonment with a non-parole period of eight years. Each of the three trials involved different complainants, all students. Mr Makarov appealed to the Court of Criminal Appeal. The appeals from the convictions entered after the first and second trials were dismissed in consecutive decisions in 2008. The appeal from the convictions entered after the third trial were quashed and new, separate trials were ordered. Mr Makarov was acquitted in both those trials. Before the appeals were heard, the Minister began investigating revocation of Mr Makarov’s Australian citizenship. On 4 April 2007, apparently in response to an inquiry from the Department of Immigration and Citizenship to the Ukrainian Embassy, the Ukrainian Vice Consul, Natalia Lopatina, informed the Department that: Ukrainian citizens who acquired foreign citizenship do not lose Ukrainian citizenship automatically. To lose Ukrainian citizenship, one has to apply accordingly. Mr Makarov’s name was not mentioned in the email or in any of the later emails passing between the Vice Consul and the Department. But it is obvious that the case in question concerned him.

The court held that the Minister’s decision was not legally unreasonable. It was not open to Mr Makarov to succeed on the basis of the Minister’s failure to make further inquiries of the Ukrainian Embassy. The court accepted that there was no requirement for the Minister to make such inquiries. The court also held that the Minister’s failure to provide reasons for his decision did not vitiate the decision. The court held that the Minister was required to engage in an active intellectual process in deciding whether to exercise his power under s 34(2) of the Citizenship Act. However, the Minister’s failure to give reasons did not indicate that he had not engaged in such a process. The application was dismissed. The applicant was ordered to pay the respondents’ costs.