Spall v Minister for Home Affairs

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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Australian Citizenship Act 2007 (Cth) ss 3, 20, 21, 24, 26, 27, 34, 35A (repealed), 36C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

Balladraf v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 698

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

Minister for Immigration and Ethnic Affairs v Wu Shan Liang

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Details
Case
[2024] FCA 849
Decision Date

CaseChat Overview and Summary

The appeal in Spall v Minister for Home Affairs involved the revocation of the Appellant's Australian citizenship under the Australian Citizenship Act 2007 (Cth). The Appellant challenged the decision of the Administrative Appeals Tribunal which had affirmed the Minister's revocation of his citizenship. The central issue was whether the statutory formulation in s 34(2)(c) of the Citizenship Act, stating it would be contrary to the public interest for the Appellant to remain an Australian citizen, was synonymous with the expression that it is in the public interest for the citizen not to continue as an Australian citizen. Additionally, the court examined whether certain decisions were plainly wrong and if s 34(5) of the Citizenship Act was subject to a contrary intention that precluded the application of the rule as to number from s 23(b) of the Acts Interpretation Act 1901 (Cth).

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

The relevant provision in s 34 and the associated definitions of “conviction of a serious offence” in s 34(5) and “serious prison sentence” in s 3 were not amended as part of the 2023 amendments. BACKGROUND Given the scope of this appeal, as it has evolved, both the Minister’s and the Tribunal’s reasons may relevantly be summarised in short form.The Minister’s decision On 7 May 2020, the Minister exercised the discretion under s 34(2) of the Citizenship Act to revoke the Appellant’s Australian citizenship upon having determined that s 34(2)(a) and 34(2)(b)(ii) applied and that it would be contrary to the public interest for the purposes of s 34(2)(c) for the Appellant to remain an Australian citizen. The Minister was satisfied the Appellant came within the scope of s 34(2)(a) as a result of a successful application for Australian citizenship by conferral and within the scope of s 34(2)(b)(ii) as a result of the Appellant’s sentence by the County Court of Victoria to a term of imprisonment of 12 months. As noted above, this issue was conceded by the Appellant in the Tribunal. Given that the Appellant maintains Ground 1 on a formal level only and accepts that I am bound to dismiss the ground, I will not further summarise the Minister’s decision in relation to the public interest consideration. The Minister was satisfied that s 34(3) did not apply because revoking the Appellant’s citizenship would not render him stateless as he would remain a national of the United Kingdom. The Minister concluded that it would be contrary to the public interest for the Appellant to remain an Australian citizen and it was appropriate to exercise the discretion to revoke the Appellant’s Australian citizenship under s 34(2) of the Citizenship Act. The Tribunal’s decision On 26 May 2020, the Appellant applied to the Tribunal for review of the Minister’s decision. The review was heard before the Tribunal on 6 and 7 July 2021. The Appellant was legally represented and gave evidence. The Tribunal’s decision was delivered before judgment was given in WaraichFCFCA. The Appellant submitted that he did not qualify to have his citizenship revoked because the power to revoke his citizenship did not arise as the requirement in s 34(2)(c) was not met. As mentioned, the Appellant conceded before the Tribunal that the threshold requirement of “12 months’ imprisonment” was satisfied. The Tribunal considered that the test for whether it is “contrary to the public interest” for a person to continue as an Australian citizen is “in terms, a quite different enquiry” to whether it is “in the public interest” for the person “to continue as an Australian a citizen”: T[78]-[79]. I pause to note that at this point in its reasons the Tribunal stated the “in the public interest” comparator without including the negative qualification in that comparator that was considered in TRHL. In TRHL, the “in the public interest” formulation of the phrase held to be synonymous with the formulation in s 34(2)(c) in the relevant statutory context was expressed to include a negative qualification (emphasis added):[41]In any event, in my opinion, in this statutory context, the expression of the public interest requirement under s 34(2)(c) as ultimately put on behalf of the Minister before the Tribunal as being "in the public interest that the appellant not continue to be an Australian citizen" is synonymous with the statutory language that "it would be contrary to the public interest for the appellant to remain an Australian citizen."

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

The Minister concluded that it would be contrary to the public interest for the Appellant to remain an Australian citizen and it was appropriate to exercise the discretion to revoke the Appellant’s Australian citizenship under s 34(2) of the Citizenship Act. The Tribunal’s decision On 26 May 2020, the Appellant applied to the Tribunal for review of the Minister’s decision. The review was heard before the Tribunal on 6 and 7 July 2021. The Appellant was legally represented and gave evidence. The Tribunal’s decision was delivered before judgment was given in WaraichFCFCA. The Appellant submitted that he did not qualify to have his citizenship revoked because the power to revoke his citizenship did not arise as the requirement in s 34(2)(c) was not met. As mentioned, the Appellant conceded before the Tribunal that the threshold requirement of “12 months’ imprisonment” was satisfied. The Tribunal considered that the test for whether it is “contrary to the public interest” for a person to continue as an Australian citizen is “in terms, a quite different enquiry” to whether it is “in the public interest” for the person “to continue as an Australian a citizen”: T[78]-[79]. I pause to note that at this point in its reasons the Tribunal stated the “in the public interest” comparator without including the negative qualification in that comparator that was considered in TRHL. In TRHL, the “in the public interest” formulation of the phrase held to be synonymous with the formulation in s 34(2)(c) in the relevant statutory context was expressed to include a negative qualification (emphasis added):[41]In any event, in my opinion, in this statutory context, the expression of the public interest requirement under s 34(2)(c) as ultimately put on behalf of the Minister before the Tribunal as being "in the public interest that the appellant not continue to be an Australian citizen" is synonymous with the statutory language that "it would be contrary to the public interest for the appellant to remain an Australian citizen." In any event, the Tribunal considered itself bound by the decisions in Waraich at [43] and TRHL at [41]: T[80]. The Tribunal identified the question to be answered in relation to s 34(2)(c) as “whether it is not in the public interest that he should continue as an Australian citizen” (emphasis in original): T[81]. The Tribunal answered that question at T[97] by reaching a conclusion in accordance with the formulation in s 34(2)(c):I regard it as being contrary to the public interest therefore under s 34(2)(c) of the Act for the Applicant to remain an Australian citizen… After considering factors relevant to the residual discretion, such as hardship, anxiety, and distress, the Tribunal decided to affirm the decision under review.CONSIDERATION Ground 1A naturally falls for consideration before Ground 1. In the legislative scheme, s 34(2)(b)(iii) operates as a prerequisite of which the decision-maker must be satisfied before turning to the public interest criterion in s 34(2)(c), which is the subject of Ground 1. Ground 1A: interpretation of “an offence”

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)).