Minister for Immigration and Border Protection v Egan

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FEDERAL COURT OF AUSTRALIA

Minister for Immigration and Border Protection v Egan [2018] FCAFC 169

Appeal from: Egan v Minister for Immigration and Border Protection (Citizenship) [2017] AATA 2705
File number: NSD 2261 of 2017
NSD 1395 of 2018
Judges: ALLSOP CJ, PERRAM AND JAGOT JJ
Date of judgment: 9 October 2018
Catchwords:

ADMINISTRATIVE LAW – appeal from Administrative Appeals Tribunal on question of law under s 44 of Administrative Appeals Tribunal Act 1975 (Cth) – whether Tribunal failed to take account of a mandatory relevant consideration – whether grant of ex-citizen visa under Migration Act 1958 (Cth) s 35(3) was mandatory relevant consideration – where Tribunal set aside decision of Minister to cancel citizenship – where Tribunal accepted that Respondent would be repatriated if citizenship cancelled

ADMINISTRATIVE LAW – application for judicial review of Tribunal under s 39B of Judiciary Act 1903 (Cth) – whether writs should be issued – where appeal from Tribunal concurrently pursued

Legislation:

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

Australian Citizenship Act 2007 (Cth) ss 3, 5, 21, 34

Judiciary Act 1903 (Cth) s 39B

Migration Act1958 (Cth) ss 35, 500, 501, 501CA

Cases cited:

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

Minister for Aboriginal Affairs v Peko-Wallsend Limited [1986] HCA 40; 162 CLR 24

Minister for Immigration and Border Protection v BHA17 [2018] FCAFC 68

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

Sharp Corporation of Australia Pty Ltd v Collector of Customs [1995] FCA 707; 59 FCR 6

TRHL v Minister for Immigration and Border Protection [2016] FCA 376

Date of hearing: 16 August 2018
Date of last submissions: 20 August 2018
Registry: New South Wales
Division: General Division
National Practice Area: Administrative and Constitutional Law and Human Rights
Category: Catchwords
Number of paragraphs: 36
Counsel for the Applicant: Mr G T Johnson SC with Mr P Kaplan
Solicitor for the Applicant: Australian Government Solicitor
Counsel for the First Respondent: Mr I Davidson SC with Mr P Bolster
Solicitor for the First Respondent: Buttar Caldwell & Co Solicitors
Counsel for the Second Respondent The Second Respondent filed a submitting notice, save as to the question of costs

ORDERS

NSD 2261 of 2017
BETWEEN:

MINISTER FOR IMMIGRATION AND BORDER PROTECTION

Applicant
AND:

FINIAN JAMES EGAN

Respondent

JUDGES:

ALLSOP CJ, PERRAM AND JAGOT JJ

DATE OF ORDER:

9 OCTOBER 2018

THE COURT ORDERS THAT:

1.The appeal be allowed.

2.The decision of the Tribunal made on 14 December 2017 be set aside.

3.The case be remitted to the Tribunal to be decided again in such manner as it deems appropriate and constituted as it sees fit.

4.The Respondent pay the Applicant’s costs of the appeal.

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

ORDERS

NSD 1395 of 2018
BETWEEN:

MINISTER FOR IMMIGRATION AND BORDER PROTECTION

Applicant
AND:

FINIAN JAMES EGAN

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

JUDGES:

ALLSOP CJ,…

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Details
Case
[2018] FCAFC 169
Decision Date

CaseChat Overview and Summary

The case of Minister for Immigration and Border Protection v Egan concerns an appeal by the Minister for Immigration and Border Protection against a decision of the Administrative Appeals Tribunal (AAT). The central issue is whether the AAT failed to take into account certain mandatory considerations when setting aside the Minister's decision to cancel the Respondent's citizenship under section 34 of the Australian Citizenship Act 2007. The Minister argued that the AAT erred in law by not considering that the cancellation of the Respondent's citizenship would, in effect, grant him an ex-citizen visa under section 35(3) of the Migration Act 1958, and that he would not be removed from Australia until a decision under sections 500, 501, or 501CA of the Migration Act was made. The Respondent, on the other hand, contended that the AAT properly considered the implications of the cancellation of his citizenship and that he would not be automatically removed to Ireland.

The Federal Court had to determine whether the AAT had correctly applied the law in reaching its decision. The Court examined the AAT's reasons to ascertain whether it had overlooked the mandatory considerations that the Minister was obliged to take into account. The Court noted that the AAT's decision was well-reasoned, providing a detailed background of the Respondent's offending and an analysis of the public interest in the context of the Respondent's citizenship cancellation. The AAT had balanced the seriousness of the Respondent's offences against his age and health conditions, ultimately deciding that the public interest did not require the cancellation of his citizenship.

In dismissing the Minister's appeal, the Court held that the AAT had indeed considered the legal consequences of the Respondent's citizenship cancellation, albeit not in the precise terms argued by the Minister. The Court found that the AAT's decision, when read as a whole, demonstrated an understanding of the relevant legal framework and the implications of cancelling the Respondent's citizenship. The Court concluded that the AAT had not failed to take into account the mandatory considerations as claimed by the Minister.

The Court's final order was to dismiss the proceeding with no order as to costs. This determination ensures that the AAT's decision stands, and the Respondent's citizenship remains unaffected by the Minister's appeal.

Orders

Orders of the court

1. The proceeding be dismissed with no order as to costs.

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

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

Section 44 of the AAT Act confers jurisdiction on this Court to hear appeals from decisions made by the Tribunal on questions of law. The Minister has so appealed. His submission was that the Tribunal had failed to take into account three matters which it was obliged to take into account. These were, first, that the Respondent would be, at the moment that his citizenship was cancelled, taken to have been granted an ex-citizen visa under s 35(3) of the Migration Act 1958 (Cth) (‘Migration Act’); secondly, he would not be removed from Australia until some ultimate decision was made under ss 500, 501 or 501CA of the Migration Act; and, thirdly, it would be only then that the deportation issues would be relevant. Each of these was also said to be an error of law. The Respondent, on the other hand, denied these matters and submitted that the Tribunal’s decision, fairly read, does involve a correct consideration of the legal consequences of the Respondent’s citizenship being cancelled, namely that the Respondent would not automatically be removed to Ireland. Further, the Respondent also submitted that even if that were not correct, the Tribunal was not obliged to consider the precise legal consequences of the revocation of the Respondent’s citizenship in considering the public interest under s 34(2)(b)(ii).2. The Tribunal’s Decision The Tribunal’s reasons for decision are, with respect, well-drafted. After noting some background matters about the Respondent, it began by setting out in detail the history of the Respondent’s offending including remarks made by the sentencing judge about his victims. It then noted the meaning of the expression ‘public interest’ in s 34(2) of the Citizenship Act in terms which are not now suggested by either party to be controversial (at [28]-[31]). Following this, it embarked upon an analysis of whether the public interest required the cancellation of the Respondent’s citizenship. It commenced this analysis by accepting the Minister’s submission that the offences involved were serious, that the Respondent was not a person of good character and that had his offending been known in 1992 it was unlikely that citizenship would ever have been conferred on him in the first place (at [37]). Although it did not say this explicitly, it is evident that the Tribunal regarded these matters as favouring the Minister in the assessment of what the public interest required. Having surveyed the Minister’s position, the Tribunal then went on to consider three mitigating factors which might have favoured the Respondent. The first of these was discussed at [38]-[41] and concerned the Respondent’s age and poor health. At the time of the hearing before the Tribunal the Respondent was 83 and in poor health with a number of reasonably serious medical conditions together with a psychological disorder. The Tribunal accepted that the Respondent was an elderly man who would require professional help for multiple medical conditions for the remainder of his life (at [41]).

Ratio Decidendi

Legal Principle Established

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