FEDERAL COURT OF AUSTRALIA
Spall v Minister for Home Affairs [2024] FCA 849
Appeal from: Decision of Administrative Appeals Tribunal delivered by Dr Cremean, Senior Member dated 18 November 2021 File number(s): VID 750 of 2021 Judgment of: CHEESEMAN J Date of judgment: 2 August 2024 Catchwords: MIGRATION – Appeal on question of law from decision of the Administrative Appeals Tribunal pursuant to s 44 of Administrative Appeals Tribunal Act 1975 (Cth) where Tribunal affirmed the decision of Minister for Home Affairs to revoke the Appellant’s Australian citizenship pursuant to s 34(2) of the Australian Citizenship Act 2007 (Cth) – whether the statutory formulation of the public interest consideration in s 34(2)(c) of the Citizenship Act is synonymous with the expression that it is in the public interest that the citizen not continue to be an Australian citizen – whether TRHL v Minister for Immigration [2016] FCA 376 plainly wrong – whether in its proper construction, s 34(5) of the Citizenship Act is subject to a contrary intention that precludes application of the rule as to number provided by s 23(b) of the Acts Interpretation Act 1901 (Cth) – whether the Minister’s discretion to revoke the Appellant’s Australian citizenship engaged - Held: appeal dismissed Legislation: Acts Interpretation Act 1901 (Cth) ss 2(2), 15AA, 23(b)
Administrative Appeals Tribunal Act 1975 (Cth) s 44
Australian Citizenship (Transitionals and Consequentials) Act 2007 (Cth) ss 2, 3 and item 42 of Sch 1
Australian Citizenship Act 1948 (Cth) ss 13, 15, 21(1)(a)
Australian Citizenship Act 2007 (Cth) ss 3, 20, 21, 24, 26, 27, 34, 35A (repealed), 36C
Australian Citizenship Amendment (Allegiance to Australia) Act 2015 (Cth) s 35A
Australian Citizenship Amendment (Citizenship Cessation) Act 2020 (Cth) s 36D
Australian Citizenship Amendment (Citizenship Repudiation) Act 2023 (Cth) s 36C
Criminal Code Act 1995 (Cth)
Migration Act 1958 (Cth) ss 501(3A), 501(6), 501(7), 501(12)
Migration Amendment (Aggregate Sentences) Act 2023 (Cth)
Crimes (Sentencing Procedure) Act1999 (NSW) s 53A
Cases cited: Alexander v Minister for Home Affairs [2022] HCA 19
Attorney-General (Queensland) v Australian Industrial Relations Commission [2002] HCA 42; 213 CLR 485
Benbrika v Minister for Home Affairs [2023] HCA 33
Blue Metal Industries Ltd v Dilley (1969) 117 CLR 651; [1970] AC 827
Collector of Customs v Pozzolanic Enterprises Pty Ltd [1993] FCA 456; 43 FCR 280
Commissioner of State Revenue (Vic) v The Muir Electrical Co Pty Ltd (2003) 8 VR 200
CSR Ltd v Eddy (2005) 226 CLR 1
Interlego AG v Croner Trading Pty Ltd [1992] FCA 992; 39 FCR 348
Irving v Minister for Immigration (1996) 68 FCR 422
Jonesv Commonwealth [2023] HCA 34; 97 ALJR 936
Jones v Scully [2001] FCA 879; 113 FCR 343
Minister for Home Affairs v Waraich [2020] FCA 1513
Minister for Home Affairs & Anor v Pearson & Anor [2023] HCATrans 105
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- Case
- [2024] FCA 849
- Decision Date
CaseChat Overview and Summary
The court found that the statutory formulation in s 34(2)(c) was indeed synonymous with the expression considered in TRHL v Minister for Immigration [2016] FCA 376, as both required a negative qualification to the public interest consideration. Furthermore, the court held that the cited decisions were not plainly wrong and that there was no contrary intention in s 34(5) that would preclude the application of the rule as to number from s 23(b) of the Acts Interpretation Act. Consequently, the appeal was dismissed, and the decision of the Tribunal affirming the Minister's revocation of the Appellant's citizenship was upheld.
The court's final orders included amending the name of the First Respondent from the "Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs" to the "Minister for Home Affairs," removing the Administrative Appeals Tribunal as a party, adopting the Amended Notice of Appeal, and dismissing the Amended Notice of Appeal with costs.
Orders
Orders of the court
1. The name of the First Respondent be changed from the “Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs” to the “Minister for Home Affairs”.
2. The Administrative Appeals Tribunal be removed as a party.
3. The Amended Notice of Appeal marked draft stand as the Amended Notice of Appeal on the Court file.
4. The Amended Notice of Appeal be dismissed with costs.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
Background
Background to the litigation
Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
Ratio Decidendi
Legal Principle Established
The concept of “enduring moral qualities” derives from the Full Court in Irving v Minister for Immigration [1996)] FCA 663; 68 FCR 422 at 431, endorsed by Gleeson CJ and Gummow J in Minister for Immigration and Multicultural Affairs v Jia Legeng [2001] HCA 17; 205 CLR 507 at 529-530 at [65], in the context of the Migration Act 1958 (Cth). As Bromwich J observed in Balladraf v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 698 at [10]-[11], the approach adopted for the assessment of good character for the purposes of the Migration Act is “equally apposite” for the purposes of the Citizenship Act, given the absence of any statutory definition or other legislative guidance. Section 15(1) provided that a person to whom a certificate of Australian citizenship was granted under Division 2 who made a pledge of commitment, in the manner provided by s 15(2) and in accordance with the appropriate form set out in Sch 2, became an Australian citizen.The Citizenship Act The 1948 Act was repealed upon the commencement of the Citizenship Act: ss 2, 3 and item 42 of Sch 1, Australian Citizenship (Transitionals and Consequentials) Act 2007 (Cth) (the Consequential Provisions Act). Any person who was an Australian citizen under Division 2 of Part III of the 1948 Act and who had not ceased to be an Australian citizen under the Citizenship Act was taken from the commencement of the Citizenship Act to be an Australian citizen under Subdivision B of Division 2 of Part 2 of the Citizenship Act: s 4(1)(b). The Appellant was within that category. Subdivision B of Division 2 of Part 2 of the Citizenship Act deals with citizenship by conferral which broadly corresponds with Division 2 of Part III of the 1948 Act. The Citizenship Act provides for an application to be made to the Minister for a person to be approved to become an Australian citizen subject to satisfying statutory requirements as to eligibility. For a person to become an Australian citizen, the Minister must decide to approve the person becoming an Australian citizen (s 24(1)) and may require the person to make a pledge of commitment (ss 20, 26 and 27). Subsections 21(2)-(8) set out the criteria for when a person is eligible to become an Australian citizen (the eligibility criteria). Subsection 21(2) contains cumulative criteria as to “general eligibility” (the general eligibility criteria). Relevantly, the general eligibility criteria includes a requirement that the Minister must be satisfied that the applicant is of good character at the time of the Minister’s decision on the application (the good character criterion): s 21(2)(h). The good character criterion does not apply to all applications. There are two circumstances under s 21 where the good character criterion does not apply. First, where a person is under the age of 18 (s 21(5)). Secondly, where a person was born in Australia, is not and has never been a citizen or national of any country and is not entitled to acquire the citizenship or nationality of a foreign country (s 21(8)).