FEDERAL COURT OF AUSTRALIA

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

ORDERS

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

THE COURT ORDERS THAT:

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.

REASONS FOR JUDGMENT

ALLSOP CJ:

1    I have read the reasons to be published of Perram J. I agree with them and with the orders his Honour proposes.

Associate:

Dated:    9 October 2018

REASONS FOR JUDGMENT

PERRAM J:

1. Introduction

2    This appeal arises out of a decision of the Appellant (‘Minister’), on 5 May 2016, to revoke the Respondent’s Australian citizenship. The Respondent was born in Ireland and had Irish citizenship from birth. He migrated from Ireland to Australia in 1959 and served in this country as a priest in the Catholic Church. He retired as a parish priest in 2000 and ceased priestly duties in 2009. In 1992 he applied for Australian citizen as a permanent resident. Citizenship was conferred upon him on 26 January 1993. Citizenship which is conferred in that way may be revoked by the Minister under s 34(2) of the Australian Citizenship Act 2007 (Cth) (‘Citizenship Act’) if two preconditions are met: the person must have been convicted of a ‘serious offence’ and the Minister must be satisfied that it would be contrary to the public interest for the person to remain an Australian citizen. So far as it is relevant s 34(2) provides:

‘34 Revocation by Minister—offences or fraud

…

Citizenship by conferral

(2) The Minister may, by writing, revoke a person’s Australian citizenship if:

(a)     the person is an Australian citizen under Subdivision B of Division 2 (including because of the operation of section 32); and

(b)     any of the following apply:

…

(ii)     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);

…

(c)     the Minister is satisfied that it would be contrary to the public interest for the person to remain an Australian citizen.

…’

3    A serious offence will have been committed if the person has been sentenced to a period of imprisonment of at least 12 months duration: Citizenship Act s 34(5) combined with the definition of ‘serious prison sentence’ in s 3. On 20 December 2013, Tupman DCJ of the District Court of New South Wales sentenced the Respondent to 8 years’ imprisonment with a non-parole period of 4 years for a number of historical child sex offences. Once the Respondent was sentenced the requirement of s 34(2)(b)(ii) was met. The Minister then formed the opinion that it was not in the public interest for the Respondent to remain an Australian citizen which meant that s 34(2)(c) was also satisfied. Once that conclusion was reached the power to revoke the Respondent’s citizenship arose as a matter of discretion (in the sense that the Minister could, if he chose to, revoke the Respondent’s citizenship but was not obliged to do so). The Minister’s decision of 5 May 2016, however, was that he would exercise the power adversely to the Respondent and revoke his citizenship.

4    The Minister’s decision was susceptible to review in the Administrative Appeals Tribunal (‘Tribunal’): Citizenship Act s 52(1)(f). The Respondent filed an application for such a review with the Tribunal. On 28 July 2017, the Tribunal heard his appeal. In dealing with the review application the Tribunal had all of the powers of the Minister under s 34(2) of the Citizenship Act: Administrative Appeals Tribunal Act 1975 (Cth) (‘AAT Act’), s 43(1). Its obligation was ‘to arrive at the correct or preferable decision in the case before it according to the material before it’: Bushell v Repatriation Commission [1992] HCA 47; 175 CLR 408 at 425 per Brennan J. In doing so it could affirm the Minister’s decision, vary it or set it aside: AAT Act s 43(1). If it were to set aside the Minister’s decision, it could either substitute its own decision or remit the matter back to the Minister for reconsideration: AAT Act s 43(1)(c).

5    These provisions meant that the Tribunal was obliged to consider the questions posed by s 34(2) of the Citizenship Act as at the date of its own decision and not as at the date of the Minister’s decision. The Tribunal decided the matter on 14 December 2017 and concluded that it was not of the opinion that it would be contrary to the public interest for the Respondent to retain his citizenship. The consequence was that no power to cancel the Respondent’s citizenship arose as the formation of the contrary affirmative opinion was an indispensable jurisdictional prerequisite to the exercise of the power. It was not necessary for the Tribunal, therefore, to consider how it would have exercised the power if it had arisen and it undertook no such consideration. The direction it made was that the Minister’s decision would be set aside.

6    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

7    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.

8    Having surveyed the Minister’s position, the Tribunal then went on to consider three mitigating factors which might have favoured the Respondent.

9    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]).

10    The second mitigating factor was the Tribunal’s view that the risk of the Respondent re-offending was low. The Tribunal discussed this factor at [42]-[43]. It accepted evidence (that the Minister did not contest before the Tribunal or in this Court) that in his current situation he was: (a) unlikely to be placed in the kind of circumstances as those which led him to offend (i.e. being a parish priest around children); (b) physically incapable of offending in view of his age and the state of his health; and, (c) likely to be deterred from misconduct because his past conviction and prison sentence were always in his mind as disincentives.

11    The third mitigating factor was the Tribunal’s view that the Respondent had received support after he left prison which made him less likely to offend. The Tribunal discussed this at [44]-[50]. There were two persons whose support impressed the Tribunal. The first was Bishop Comensoli who was the prelate responsible for the Respondent’s supervision. The Bishop explained that the Respondent was under his jurisdiction so that he could retain some supervisory control over his whereabouts and living circumstances. He said that ‘while ever he is under my jurisdiction these restrictions will remain in place’. In a significant piece of evidence for the purpose of this appeal, the Bishop also said that if the Respondent were returned to Ireland, ‘the Diocese would not be able to supervise him in any way’ and he observed that the risk of the Respondent reoffending would be increased if he were isolated. He noted that if the Respondent were deported to Ireland after his release from prison he would be isolated.

12    The second person was Father Casey. He gave evidence which, in substance, supported the Bishop’s views. The Bishop’s evidence that the Respondent would be isolated if returned to Ireland was also buttressed by evidence from the Respondent himself that he had no real connections in Ireland (he had two brothers who did not speak to him and two sisters who were nuns in convents).

13    Of this third mitigating factor the Tribunal concluded that the Respondent would be subject to supervision ‘if he lives in the accommodation proposed by Bishop Comensoli’ but that ‘he would most likely be isolated and unsupported if he were denied this opportunity’ (at [49]). Although the Tribunal did not explicitly say this, it is an inevitable inference that the only circumstance in which the Respondent would not be supervised by Bishop Comensoli was if he were no longer in Australia. The Tribunal did not regard this matter, however, as a matter which was for the Respondent’s benefit. Rather, at [50], it tied the issue back to the risk to children. It concluded, in effect, that (a) the Respondent posed a greater risk to children if he were isolated and unsupported; (b) he would be isolated and unsupported if returned to Ireland; and, (c) the risk to children was, therefore, greater if he were returned to Ireland than if he remained in Australia where he would be supervised. Its actual conclusion was this:

‘50.    I attach significance to the fact that both Bishop Comensoli and Father Casey considered that there is a need for supervision of the applicant and the protection of children, upon his release from prison. There was no evidence of any alternative source of such supervision and protection.’

14    Having dealt with the three mitigating factors the Tribunal then turned to a balancing exercise at [51]-[53]:

‘51.    The outcome of these proceedings is by no means straightforward or clear-cut and involves and exercise of discretion. Ultimately, I conclude that “the correct and preferable decision” is to allow the applicant to retain his Australian citizenship. A significant consideration in my determination is the support and supervision which the applicant will receive from his superior in the Catholic Church and, consequently, the existence of mechanisms for the protection of children.

52.    I have balanced this consideration against the factors which were relied upon by the respondent and also taken into account the additional mitigating matters to which I have referred above in these reasons. The outcome of these proceedings has involved a delicate balancing exercise of very serious and weighty considerations.

53.    For these reasons, I conclude that it would not be contrary to the public interest that the applicant retain his Australian citizenship. Accordingly, I will set aside the decision of the Minister.’

15    The last sentence of [51] shows that the Tribunal accepted that the consequence of the cancellation of the Respondent’s citizenship would be his return to Ireland. An unstated assumption upon which the Tribunal’s statement at [51] necessarily rests is that if he were returned to Ireland that support would not be available. There were no other circumstances in which it was suggested that the Respondent might be isolated or unsupported except if removed from Australia.

3. Was there an error?

16    The consequence for the Respondent if his citizenship were revoked was not, as the Tribunal assumed, that he would be repatriated to Ireland, at least not immediately. It was instead twofold: first, he would be immediately taken to have been granted an ex-citizen visa by force of s 35(3) of the Migration Act 1958 (‘A person who, on or after 1 September 1994, ceases to be an Australian citizen while in the migration zone is taken to have been granted an ex-citizen visa when that citizenship ceases.’); secondly, he would then be exposed to the possibility that the Minister might exercise a power to cancel that visa on character grounds under s 501(2) or (3) of the Migration Act or, if not cancelled in that way, it might automatically be cancelled under s 501(3A). In some of these cases, there would have been avenues of appeal which might then have been pursued. It was only after these administrative steps had been taken that a decision would then be made as to whether the Respondent should be returned to Ireland. It was not legally necessary that the legal machinery of s 501 should be engaged and even if it were engaged it was not a legal certainty that the eventual decision under it would be that the Respondent would be removed from Australia.

17    The consequence of this is that the Tribunal failed to take into account a mandatory relevant consideration. This consideration was that upon cancellation of his citizenship he would immediately be taken to have been granted an ex-citizen visa under s 35(3) of the Migration Act.

18    Why was this mandatory? Often enough it will be difficult to say that an official exercising a power under one statute (here the Citizenship Act) must, as a mandatory relevant consideration, take into account a legal consequence under another (here, the grant of a visa under the Migration Act). Thus, for example, where a visa is cancelled under the Migration Act this Court has held that the consequential loss of social security benefits under the Social Security Act 1991 (Cth) is not a mandatory relevant consideration for a cancellation decision under the Migration Act: Minister for Immigration and Border Protection v BHA17 [2018] FCAFC 68 at [135]. There the Full Court was speaking of a decision under the Migration Act rather than under the Citizenship Act but its observations remain pertinent nevertheless:

‘135.     …There is nothing in the subject matter, scope or purpose of the Migration Act, in providing a regime for the grant, cancellation (relevantly, on character grounds) and revocation of such cancellation, that requires indirect consequences, such as the loss of benefits and entitlements bestowed by other Commonwealth statutes, to be taken into account other than in the context of considering representations made under s 501CA(4) of the Migration Act. …’

19    Accordingly, any attempt to make a consequence under one statute a mandatory relevant consideration for an administrative decision made under another, must bring itself within the well-established requirement in Minister for Aboriginal Affairs v Peko-Wallsend Limited [1986] HCA 40; 162 CLR 24 at 39-40 that the necessity to do so be anchored in the subject matter, scope and purpose of the second statute.

20    The scope, purpose and ambit of the Citizenship Act include the circumstances under which citizenship is acquired and lost. The Citizenship Act explicitly contemplates the granting of citizenship to persons holding visas under the Migration Act. Thus a permanent resident is eligible to become a citizen in certain circumstances and a permanent resident is defined as a person holding a permanent visa: Citizenship Act ss 5, 21. Section 3 defines a permanent visa to have the same meaning it bears under the Migration Act. It is mandatory, therefore, to consider the visa status of an applicant under the Migration Act in considering whether citizenship should be granted under s 21 in the first place. There is no direct reference in the Citizenship Act to s 35(3) of the Migration Act. But just as s 21 shows that the Migration Act is directly linked to the Citizenship Act when citizenship is being conferred, so too does s 35 of the Migration Act show that the two Acts are linked when citizenship is being taken away. The full text of s 35 is as follows:

‘35 Ex‑citizen visas

(1)     There is a class of permanent visas to remain in, but not re‑enter, Australia, to be known as ex‑citizen visas.

(2)     A person who:

(a)     before 1 September 1994, ceased to be an Australian citizen while in the migration zone; and

(b)     did not leave Australia after ceasing to be a citizen and before that date;

is taken to have been granted an ex‑citizen visa on that date.

(3)     A person who, on or after 1 September 1994, ceases to be an Australian citizen while in the migration zone is taken to have been granted an ex‑citizen visa when that citizenship ceases.

(4)     Subdivisions AA, AB, AC (other than section 68) and AH do not apply in relation to ex‑citizen visas.’

21    The events referred to in this provision are events which can only happen under the Citizenship Act. The two statutes are therefore something of a binary system operating closely in tandem. The Migration Act’s treatment of ex-citizen makes no sense without the Citizenship Act and the conferral of citizenship on permanent visa holders by that Act can only operate in parallel with the Migration Act. The situation is therefore distinguishable from that in BHA17 in that it is implied by the subject matter, scope and purpose of the Citizenship Act that the direct consequence of a grant of an ex-citizen visa under s 35 of the Migration Act must be taken into account in reaching a state of satisfaction as to whether it would be contrary to the public interest for a person to remain an Australian citizen as prescribed by s 34(2)(c) of the Citizenship Act. It was therefore a mandatory relevant consideration for the Tribunal.

22    It is not necessary for the purposes of this appeal also to determine whether the visa cancellation machinery of s 501 of the Migration Act (and the attendant risk of repatriation) was also a mandatory relevant consideration under s 34(2). It may be true that if the Minister is bound to take into account the grant of an ex-citizen visa he must also take into account the potential for such a visa to be cancelled under s 501 and the particular risk under s 501(3A) that the Minister must cancel the visa if satisfied that the visa holder is serving a custodial sentence. The risks may be quite high. Nevertheless, I express no concluded view. Regardless of whether the visa cancellation machinery in provisions such as s 501 is a mandatory relevant consideration or not, it is certainly a permissible consideration for the decision-maker to take account of if it wishes.

23    The Minister is therefore correct that the Tribunal failed to take account of the deemed grant to the Respondent of an ex-citizen visa if his citizenship were cancelled. I would reject the Respondent’s submission that, fairly read, the Tribunal’s reasons should be understood as involving a consideration of the issues which arose under ss 35(3) and 501 of the Migration Act. Here the point was threefold. First, the Minister had made detailed submissions to the Tribunal about this matter and it ought not be assumed that the Tribunal had overlooked those submissions. Secondly, the reasons of the Tribunal were to be read fairly (citing Minister for Immigration and Border Protection v Tran [2015] FCA 546; 232 FCR 540 at 547-548 [24]; TRHL v Minister for Immigration and Border Protection [2016] FCA 376 at [39]). Thirdly, it was clear from the reasons of the Tribunal that it had considered risk of removal as a relevant inquiry.

24    I would accept that the submissions made by the Minister to the Tribunal explained that on cancellation of the Respondent’s citizenship he would be taken to have been granted an ex-citizen visa. However, if the Tribunal had actually taken that submission into account its reasoning process would have been different. The most likely explanation for the absence of any reference to the ex-citizen visa in the Tribunal’s reasons is not that the submission about it was taken into account but that it was overlooked. I do not overlook that the Tribunal was aware at the time of the hearing before it that the Respondent was serving a custodial sentence. It could have reasoned at the time that it handed down its decision that there was a risk that he remained in custody and a correspondent risk that the Minister, or one of his delegates, might be satisfied that he was in custody and therefore be required mandatorily to cancel his ex-citizen visa under s 501(3A). Those risks might even have been said to be high. But there is simply nothing in the Tribunal’s reasons to suggest that this was its method of reasoning.

25    As to the way in which the Tribunal’s reasons are to be interpreted, I would accept that they are to be read fairly but, even so, I am unable to escape the conclusion that the Tribunal did see the case as involving a clear cut choice between the Respondent remaining in Australia, on the one hand, or of being sent back to Ireland, on the other. The Respondent’s submission cannot therefore be accepted. Nor can I accept that the issue of removal was framed by the Tribunal as the risk of removal under the Migration Act rather than a certainty of removal. This is simply not what [51]-[53] say.

4. Result

26    The question of whether the Tribunal failed to take account of a mandatory relevant consideration is a question of law for the purposes of s 44 of the AAT Act: Sharp Corporation of Australia Pty Ltd v Collector of Customs [1995] FCA 707; 59 FCR 6 at 12. It was the question posed in Question 2.1 of the Minister’s notice of appeal. Ordinarily, the result would be that the appeal should be allowed, the decision of the Tribunal set aside under s 44(4) of the AAT Act and the matter remitted to the Tribunal to decide once again.

27    The Minister submitted, however, that the Court instead should issue a writ of certiorari quashing the Tribunal’s decision, declare that the Tribunal’s decision was void ab initio and declare that the Minister’s original decision of 5 May 2016 remained operative from that day. An application for relief of that kind was before the Court in the form of an originating application for judicial review of the Tribunal’s decision under s 39B of the Judiciary Act 1903 (Cth). The reason the Minister sought this relief related to the fact that the Respondent had attempted to renounce his Irish citizenship on 13 October 2016. That was at a time after the Respondent had filed his application for review in the Tribunal but before it was heard. It appears likely that the Irish law of citizenship does not permit the renunciation of citizenship if the citizen in question holds no other nationality. This appears similar to the limitation under Australian law contained in s 34(3)(b) of the Citizenship Act.

28    The effect of the Minister’s original revocation decision on 5 May 2016 was that the Respondent ceased to have Australian nationality. When, on 13 October 2016, he sought to revoke his Irish citizenship it is likely – I express no concluded view – that this was ineffective as a matter of Irish law since the renunciation would have left him stateless. It was in that context that the Tribunal upheld his review on 14 December 2017 and held that his Australian citizenship should not be revoked.

29    By s 43(6) of the AAT Act the Tribunal’s decision was deemed to be the Minister’s original decision and, in the absence of some other order, ‘has effect, or shall be deemed to have had effect, on and from the day on which the decision under review has or had effect.’ There was no such other order made by the Tribunal on 14 December 2017. The effect of s 43(6) was, therefore, to deem the Minister’s original decision of 5 May 2016 to be one which did not revoke the Respondent’s citizenship. Consequently, when on 13 October 2016 the Respondent renounced his Irish citizenship this could potentially be seen to be effective under Irish law since he would not be rendered stateless.

30    If this Court now sets aside the Tribunal’s decision a question arises as to whether this means that he was, or was not, an Australian citizen on 13 October 2016. The Minister seeks to maximise his position on that issue by having this Court make clear, to the maximum extent that it can, that the Tribunal’s decision of 14 December 2017 was always without legal effect. On the other hand, the Respondent would prefer to see the Court simply allow the appeal for the opposite reason.

31    The Court may well have the power to make some order having an impact on the timing issue. However, it is no part of the Court’s role to give either the Minister or the Respondent assistance on this argument. The Court’s role is to decide the legal issues before it. The citizenship argument is not before the Court and emerges only as an ancillary debate about the timing of relief. It is likely that on remitter the Tribunal will be confronted with the same argument but that will be because the issue will be before it in a properly articulated way as a submission that the Tribunal cannot now cancel the Respondent’s citizenship because of s 34(3)(b) of the Citizenship Act. That question, however, is not before this Court, and indeed, may never arise. One possible outcome is that the Tribunal makes the same decision again, this time taking into account the grant to the Respondent of an ex-citizen visa if his citizenship is revoked but nevertheless reaching the same conclusion. If that occurs, the question of s 34(3)(b) will be moot.

32    I do not regard it as appropriate to depart from the Court’s usual practice of resolving the appeal pursuant to s 44 of the AAT Act and dismissing the judicial review proceeding as unnecessary where there is no actual question before this Court as to whether the Respondent held Australian citizenship on 13 October 2016, where the only arguments about the timing aspects of this Court’s orders relate to the differing tactical outcomes that the parties desire which are, however, divorced from any legal framework cognisable in a court and where the issue might well turn out to be moot. I would not wish to be taken as saying anything as to whether there are timing differences between relief under s 44 of the AAT Act and s 39B of the Judiciary Act.

33    The Court also invited supplementary submissions as to its ability to make orders under the AAT Act with the purpose and effect of impacting upon the timing issue. It is not necessary to determine whether that power exists. For the reasons already given, I would not exercise it even if it does. The Minister also submitted that the Court should make clear that the error was jurisdictional. These reasons do that. What the legal consequences of that is, or may be, will be for the Tribunal to determine in due course.

5. Orders

34    The orders of the Court in the Minister’s appeal will be:

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.

35    The judicial review proceeding should be dismissed with no order as to costs.

Associate:

Dated:    9 October 2018

REASONS FOR JUDGMENT

JAGOT J:

36    I agree with Perram J.

Associate:

Dated:    9 October 2018