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
The Appellant, Mr Stephen Spall, appeals from a decision…
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- Case
- [2025] FCAFC 75
- Decision Date
CaseChat Overview and Summary
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
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.