Spall v Minister for Home Affairs

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FEDERAL COURT OF AUSTRALIA

Spall v Minister for Home Affairs [2025] FCAFC 75

Appeal from: Spall v Minister for Home Affairs [2024] FCA 849
File number: VID 869 of 2024
Judgment of: BUTTON, MCDONALD AND BENNETT JJ
Date of judgment: 11 June 2025
Catchwords: MIGRATION – Appeal from decision of single judge affirming decision of Minister for Home Affairs to revoke the Appellant’s Australian citizenship pursuant to s 34(2)(b)(ii) of the Australian Citizenship Act 2007 (Cth) – construction of a 34(5) of the Australian Citizenship Act 2007 (Cth) – whether intention to exclude the operation of s 23(b) of the Acts Interpretation Act 1901 (Cth) – whether the Minister's discretion to revoke the Appellant’s Australian citizenship engaged by a total effective sentence of more than 12 months – appeal dismissed
Legislation:

Acts Interpretation Act 1901 (Cth) ss 2, 15AA, 23

Australian Citizenship Act 2007 (Cth) ss 3, 34, 35A

Australian Citizenship Act1948 (Cth) s 13

Australian Citizenship Amendment Act 1984 (Cth)

Australian CitizenshipAmendment (Citizenship Cessation) Act 2020 (Cth)

Australian Citizenship Amendment (Citizenship Repudiation) Act 2023 (Cth)

Sentencing Act 2017 (SA) s 26

Cases cited:

Alexander v Minister for Home Affairs [2022] HCA 19; 276 CLR 336

AQO v Minister for Finance and Services [2016] NSWCA 248; 93 NSWLR 46

Attorney-General (Qld) v Australian Industrial Relations Commission [2002] HCA 42; 213 CLR 485

Benbrika v Minister for Home Affairs [2023] HCA 33; 97 ALJR 899

Blue Metal Industries Ltd v Dilley (1969) 117 CLR 651

Carr v Western Australia [2007] HCA 47; 232 CLR 138

Commissioner of Stamps v Telegraph Investment Co Pty Ltd (1995) 184 CLR 453

Commissioner of State Revenue (Vic) v The Muir Electrical Co Pty Ltd [2003] VSCA 112; 8 VR 200

Grain Elevators Board (Vic) v Dunmunkle Corporation (1946) 73 CLR 70

Jones v Commonwealth [2023] HCA 34; 97 ALJR 936

Pearson v Commonwealth of Australia [2024] HCA 46; 99 ALJR 110

SAS Trustee Corporation v Miles [2018] HCA 55; 265 CLR 137

Spall v Minister for Home Affairs [2024] FCA 849

Taylor v The Queen [2020] VSCA 50; 281 A Crim R 478

Division: General Division
Registry: Victoria
National Practice Area: Administrative and Constitutional Law and Human Rights
Number of paragraphs: 60
Date of hearing: 13 March 2025
Counsel for the Appellant:  A Aleksov
Solicitor for the Appellant:  Carina Ford Immigration Lawyers
Counsel for the Respondent: P Herzfeld SC and S Puttick
Solicitor for the Respondent:  Australian Government Solicitor

ORDERS

VID 869 of 2024
BETWEEN:

STEPHEN SPALL

Appellant
AND:

MINISTER FOR HOME AFFAIRS

Respondent

ORDER MADE BY:

BUTTON, MCDONALD AND BENNETT JJ

DATE OF ORDER:

11 JUNE 2025

THE COURT ORDERS THAT:

1.The appeal be dismissed.

2.The Appellant pay the costs of the appeal on a standard basis, as taxed or agreed.

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


REASONS FOR JUDGMENT

THE COURT:

INTRODUCTION

  1. The Appellant, Mr Stephen Spall, appeals from a decision…

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Details
Case
[2025] FCAFC 75
Decision Date

CaseChat Overview and Summary

The case of Spall v Minister for Home Affairs involved the Appellant, Mr Spall, appealing against the decision of a single judge affirming the decision of the Minister for Home Affairs to revoke his Australian citizenship. The revocation was pursuant to section 34(2)(b)(ii) of the Australian Citizenship Act 2007 (Cth). The central legal issue in the appeal was the interpretation of section 34(5) of the Act, specifically whether it allows for more than one offence to be considered when determining if a person has been sentenced to a "serious prison sentence." This question arose from the Appellant's argument that the primary judge's construction of the relevant section could lead to unjust outcomes, as illustrated by hypothetical scenarios where different outcomes could result from similar criminal conduct based on the timing and manner of charging and sentencing.

The court addressed the Appellant's argument that the primary judge's interpretation of section 34(5) might lead to arbitrary or unjust outcomes. The court considered whether the singular term "sentence" in section 34(5) should be interpreted as encompassing a total effective sentence, rather than requiring multiple sentences to be imposed simultaneously. The court concluded that the term "sentence" properly construed does encompass a total effective sentence, thereby resolving the issue without needing to address whether sentences imposed at different times could trigger section 34(2)(b)(ii). The court found that the Minister's argument that prosecutorial discretion in charging could lead to inconsistent outcomes was also valid. The court dismissed the appeal and ordered that the Appellant pay the costs of the appeal on a standard basis, as taxed or agreed.

Orders

Orders of the court

1. The appeal be dismissed.

2. The Appellant pay the costs of the appeal on a standard basis, as taxed or agreed.

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

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

The application was dismissed on 2 August 2024 (Spall v Minister for Home Affairs [2024] FCA 849 (Primary Judgment)). One ground of appeal was pursued in this appeal, being: Whether the expression “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” in s 34(5) of the AC Act allows for more than one “offence” to be brought to account in relation to the determination of the “serious prison sentence”? It is this ground which we now consider, below.THE STATUTORY FRAMEWORK The statutory framework was set out by the primary judge at [17]-[44] of the Primary Judgment. We agree with that description, and we do not repeat it here, save for a few salient features. The Australian Citizenship Act1948 (Cth) (1948 Act) contained provisions for the conferral of citizenship when Mr Spall’s citizenship was conferred in March 1997. At that time, s 13 of the 1948 Act provided that the Minister could grant a certificate of Australian citizenship if the Minister was satisfied that the person met certain criteria, including being of good character (s 13(1)(f)). In 2007, the 1948 Act was repealed, and replaced by the Citizenship Act. This did not affect the citizenship status of Mr Spall. He continued to be a citizen, and to be categorized as a person who had obtained citizenship by conferral under Subdivision B of Division 2 of Part 2 of the Citizenship Act (as set out at Primary Judgment, [22]). The Citizenship Act contains within it a mechanism for the removal of citizenship by the Minister in particular, confined, circumstances. This proceeding concerns those provisions as they stood at 7 May 2020. While there have been amendments to the legislation in the intervening period, we refer to the Citizenship Act in the present tense for the sake of convenience, and identify where any subsequent amendments are relevant to the analysis. Section 34(2) was included in the Citizenship Act from its inception in 2007. It confers a discretion on the Minister to revoke the citizenship of a person who obtained their citizenship by conferral. Relevantly for this case, s 34(2)(b)(ii) is directed to revocation where citizenship has been conferred and where “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)”. The Minister must also be satisfied that it would be contrary to the public interest for the person to remain an Australian citizen (s 34(2)(c)). Mr Spall argues that the importance of citizenship can be discerned from the Citizenship Act, and that this should militate in favour of a stricter and narrower application of s 34. Of course, legislation rarely pursues a single purpose at all costs (Carr v Western Australia [2007] HCA 47; 232 CLR 138 at [7] (Gleeson CJ)). In some instances, such as the present, legislation reflects a balance that the Parliament has struck between competing purposes. Here, the balance enacted by s 34(2) recognises the importance of citizenship to those who hold it, as well as the need to protect the integrity of the processes by which citizenship is conferred, by legislating for a mechanism by which a grant of citizenship that is later considered to have been inappropriate may be reversed. It is implicit in the provision that s 34 is directed at least in part to rectifying a conferral of citizenship that might not have been made, had the fact of the individual’s offending been known. The plurality in Jones at [11]-[35] (Kiefel CJ, Gageler, Gleeson and Jagot JJ) addressed the legislative history and purpose of the relevant provisions relating to the revocation or loss of Australian citizenship obtained by conferral (see also [65]-[73] (Gordon J), [174]-[177] (Edelman J) and [198]-[201] (Steward J)). The plurality there made observations about the genesis of s 21(1)(a)(i) of the Bill which became the Australian Citizenship Amendment Act 1984 (Cth). Their Honours observed (at [18]-[19] (citations omitted)): The policy intent revealed by the Ministerial Statement in 1982 was elaborated on the following year by a successor of Mr Macphee in the office of Minister for Immigration and Ethnic Affairs, Mr West, in his second reading speech for the Bill which became the 1984 Amendment Act. With implicit reference to s 21(1)(a)(i), Mr West said that “[i]n the case of a person obtaining Australian citizenship by fraud, deceit, the concealment of information or any other dishonest means, the Minister will have discretion to deprive that person of citizenship”. With implicit reference to s 21(1)(a)(ii), he added:“This discretion also extends to a person convicted of a major offence committed, but not known about, before that grant of citizenship. I stress that deprivation of Australian citizenship could only occur for offences committed before the grant of citizenship. Moreover, it will occur only if the responsible Minister, after careful consideration of all the facts, is satisfied that it is in the public interest for a person not to remain an Australian citizen. The law will not allow a person to be deprived of citizenship if it has been obtained properly and honestly.”The purpose of s 21(1)(a)(ii) of the 1948 Act – the “public interest sought to be protected and enhanced” by that provision – was accordingly revealed by the Ministerial Statement and the second reading speech not to be the imposition of punishment in addition to that imposed by a court on the conviction of the person concerned. The purpose of s 21(1)(a)(ii) was rather aligned with the purpose of s 21(1)(a)(i). The purpose of both was to safeguard the integrity of the administrative function by which ministerial satisfaction that the person was of good character was a prerequisite to the person being granted Australian citizenship and in respect of which conviction of a serious offence would have been relevant to the performance of that function.

Ratio Decidendi

Legal Principle Established

The Minister argued in the alternative that if the word “sentence” did not “pick up” the total effective sentence, then the singular word “sentence” in s 34(5) should also be treated as pluralised, where relevant, by reason of the operation of the rule as to number. In our view, it is not necessary to determine this issue because the word “sentence”, properly construed, encompasses a total effective sentence. The pluralisation of the word “sentence” raises a question about whether more than one sentence, in order to attract the operation of s 34(5), must be imposed at the same time, or whether sentences imposed at different times in respect of different offences may still trigger s 34(5). We return to this issue at [53] below. Potentially unsatisfactory operation Mr Spall argues that the construction adopted by the primary judge could lead to “unlikely or unjust outcomes”, and that this should lead to the rejection of that construction. By way of example, Mr Spall submits that there might be different outcomes for two individuals – Person 1 and Person 2 – who engaged in the same criminal conduct and were charged with the same offences, depending on the circumstances in which their offending was discovered and charged. In a hypothetical example, Person 1 could be convicted of two offences at the same time, and sentenced to cumulative sentences of nine months for each charge. If the rule as to number is applied, Person 1 will have been convicted of a “serious offence”. Person 2 on the other hand is charged with a single offence and convicted in relation to that offence. Person 2 is sentenced to nine months in prison and has not been “convicted of a serious offence”. Some time after Person 2 is sentenced to that term of imprisonment, and while still serving the sentence for the first offence, further offending is discovered and Person 2 is charged with a second offence. Person 2 is then convicted and sentenced to a further nine months’ imprisonment, cumulative upon the first offence. Mr Spall argues that Person 2 has still not been “convicted of a serious offence” and so is not liable to the revocation of their citizenship under s 34. We note that it is not necessary for us to decide whether sentences imposed at different times could trigger s 34(2)(b)(ii), but we shall assume that Mr Spall’s submission is correct for the sake of this argument. Mr Spall argues that the different consequences for the same offending between hypothetical Person 1 and Person 2 suggest that the application of the rule as to number would lead to an arbitrary or unsatisfactory result which the Parliament should not be taken to have intended. Mr Spall argues that this inconsistency supports the conclusion that a construction should be preferred under which neither Person 1 nor Person 2 should fall within s 34(2)(b)(ii). On the other hand, the Minister draws attention to a kind of inconsistency in the operation of s 34(2)(b)(ii) that would arise if Mr Spall’s construction were accepted. The Minister points out that, depending on differences in the exercise of the prosecutorial discretion in different jurisdictions or in particular cases, certain offending involving a single course of conduct might be charged as a single offence (leading to a single conviction and a single sentence), or as two separate offences (leading to two convictions and two sentences producing a total effective sentence). As noted by the primary judge (at [88]), applying sentencing principles, like course of conduct and totality, the sentence to be served for the two convictions should be roughly the same as the sentence that would have been served for the single conviction. The nature of the criminal offending is the same in both cases. However, on Mr Spall’s construction, the prosecutorial choice to proceed with two charges would alter whether the person has been “convicted of a serious offence”. This may also be viewed as introducing a capricious or arbitrary operation to the scheme created by the Citizenship Act.