Federal Court of Australia

Egan v Minister for Home Affairs [2021] FCAFC 85

ORDERS

THE COURT ORDERS THAT:

1.    The appeal be dismissed with costs.

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

REASONS FOR JUDGMENT

THE COURT:

Introduction

1    By amended notice of appeal, the applicant, Finian James Egan, appeals from a decision of the Administrative Appeal Tribunal on 4 August 2020. That decision affirmed the decision of the Minister for Immigration and Border Protection on 5 May 2016 to revoke the applicant’s Australian citizenship under s 34(2) of the Australian Citizenship Act 2007 (Cth).

2    The Tribunal’s decision was a review of the Minister’s decision under s 52(1)(f) of the Citizenship Act. Section 43(1) of the Administrative Appeals Tribunal Act 1975 (Cth) (AAT Act) gave to the Tribunal all the powers that the Minister had under s 34(2) of the Citizenship Act and required the Tribunal “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. The appeal from the Tribunal’s decision is brought under s 44 of the AAT Act which gives this Court jurisdiction to hear an appeal from a decision of the Tribunal on questions of law.

3    Before turning to the grounds and substance of the appeal it is convenient to summarise the long history of the matter. But first, it is helpful to set out the relevant legislation.

Relevant legislation

4    Section 34 of the Citizenship Act sets out the circumstances in which the Minister may revoke a person’s Australian citizenship. Relevantly, s 34(2) provides as follows:

(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);

…;     and

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

5    Section 34(3) prevents the Minister, in certain circumstances, from revoking a person’s Australian citizenship. It reads as follows:

(3)    However, the Minister must not decide under subsection (2) to revoke a person’s Australian citizenship if:

(a)     the Minister may revoke the person’s Australian citizenship under that subsection only because of the application of subparagraph (2)(b)(ii); and

(b)     the Minister is satisfied that the person would, if the Minister were to revoke the person’s Australian citizenship, become a person who is not a national or citizen of any country.

Background

6    The applicant was born in November 1934 in Ireland and was an Irish citizen from birth. He migrated to Australia from Ireland in 1959 at the age of 25 after having been ordained as a Catholic priest. He served the Catholic Church in that capacity until 2000 and ceased priestly duties in 2009.

7    The applicant applied for Australian citizenship in 1992 and it was granted on 26 January 1993.

8    In 2012, the applicant was charged with eight counts of historical sexual offences against minors, committed between 1961 and 1987 during the time he was an ordained priest. The offences were one count of rape, three counts of indecent assault on a child under the age of 16, and four counts of indecent assault. The complainants were three girls who were between the ages of 10 and 17 when the offences were committed.

9    The applicant pleaded not guilty and was tried in the District Court of New South Wales. He was found guilty of the offences by a jury and, on 20 December 2013, when he was 79 years of age, he was sentenced to a term of eight years imprisonment with a non-parole period of four years. Tupman DCJ noted on sentencing, among other matters, that the offending was part of a course of conduct and there was no evidence of remorse and contrition, but because of age and medical factors the chances of re-offending were remote.

10    As already noted, on 5 May 2016, the Minister made a decision under s 34(2) of the Citizenship Act to revoke the applicant’s citizenship.

11    On 20 June 2016, the applicant filed an application for review of the decision with the Tribunal. The application sought from the Tribunal that it set aside the decision of the Minister to revoke his citizenship.

12    On 13 October 2016, the applicant submitted a declaration of alienage to the Government of Ireland purporting to renounce his Irish citizenship.

13    By letter dated 25 January 2017, the Irish Naturalisation and Immigration Service advised the applicant that:

Under the provisions of Section 21 of the Irish Nationality and Citizenship Act 1956, as substituted by Section 7 of the 1986 Act, you will cease to be an Irish citizen upon the acquisition of another citizenship or if you already hold another citizenship, your Irish citizenship ceases with effect from 13 October 2016, the date of your declaration.

14    On 28 July 2017, the applicant’s application for a review of the Minister’s decision was heard for the first time by the Tribunal constituted by the Hon Justice Stevenson, Deputy President. On 14 December 2017, the first Tribunal set aside the 5 May 2016 decision of the Minister. It did so on the basis that it would not be contrary to the public interest for the applicant to retain his Australian citizenship pursuant to s 34(2) of the Citizenship Act. An underlying premise of the first Tribunal’s reasoning was that if the applicant’s citizenship was cancelled he would be returned to Ireland.

15    Thus, from 14 December 2017 (subject to what follows) the applicant regained his Australian citizenship. On one view, the effect of that was that he simultaneously lost his Irish citizenship because his declaration of alienage had been accepted on the basis that he would lose his Irish citizenship on attaining the citizenship of another country.

16    On 19 December 2017, the applicant was released from custody and is currently on parole with a number of conditions imposed on him.

17    On 20 December 2017, the Minister filed a notice of appeal against the first Tribunal’s decision. Subsequently, the Minister also filed an originating application for judicial review pursuant to s 39B of the Judiciary Act 1903 (Cth). The application sought a writ of certiorari quashing the Tribunal’s decision and a declaration that the Minister’s original decision to revoke the applicant’s citizenship continued to have effect from the day it was made.

18    On 25 January 2018, the Minister was interviewed by Ray Hadley on Radio 2GB. During that interview, the Minister said the applicant was a “horrible individual” and that he did not “believe [the applicant] is a worthy member of our society”. As will be seen, the applicant has relied on this as an indication of the likelihood that should his citizenship ultimately be revoked he will be removed from Australia.

19    On 10 July 2018, the applicant submitted a further declaration of alienage to the Government of Ireland.

20    On 12 and 13 July 2018, lawyers acting for the applicant at the time received email correspondence from “Citizenship Helpdesk Team 4” from an Irish Government email address. The email correspondence relevantly stated that “per our records Mr Egan has already lodged a declaration of alienage in October 2016 to renounce his Irish citizenship” and “Mr Egan made a declaration of alienage to renounce his Irish citizenship, he is no longer an Irish citizen.”

21    On 9 October 2018, the Full Court per Perram J, Allsop CJ and Jagot J agreeing, gave judgment on the Minister’s challenges to the first Tribunal decision. The judgment is published as Minister for Immigration and Border Protection v Egan [2018] FCAFC 169; 261 FCR 451. In the proceeding the Minister had submitted that the premise underlying the reasoning of the first Tribunal, namely, that if the applicant’s citizenship was cancelled he would be removed from Australia, was wrong. That was on the basis that at the moment that his citizenship was cancelled, the applicant would be taken to have been granted an ex-citizen visa under s 35(3) of the Migration Act 1958 (Cth). He would thus not be removed from Australia until some ultimate decision was made under s 500, s 501 or s 501CA of the Migration Act and it would be only then that the deportation issues would be relevant.

22    The Full Court relevantly said (at [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 s 501(3) of the Migration Act or, if not cancelled in that way, it might automatically be cancelled under s 501(3A).

23    On that basis, the Full Court allowed the Minister’s challenge to the decision of the first Tribunal.

24    In commenting (at [27]) on the application for relief under s 39B of the Judiciary Act, the Full Court noted that the reason the Minister sought a writ of certiorari and declarations was because of the applicant’s attempted renunciation of his Irish citizenship on 13 October 2016. The Full Court made brief comments on the Irish citizenship issue (at [27]-[32]) but made no findings on it because the “citizenship argument is not before the Court”. Accordingly, no orders were made in that regard.

25    The Full Court therefore ordered (at [34]) that the appeal be allowed, the decision of the first Tribunal be set aside, and that the case be remitted to the Tribunal to be decided again in such manner as it deems appropriate and constituted as it sees fit.

26    This returned the applicant to not being an Australian citizen. Whether, if he had lost his Irish citizenship when the first Tribunal reinstated his Australian citizenship, he then once again became an Irish citizen or was stateless is a point to which we will return.

27    On 20 December 2018, the applicant was dismissed by the Catholic Church from the clerical state.

28    On 18 and 19 December 2019, the second Tribunal hearing took place following the remittal orders of the Full Court in the first appeal. The second Tribunal was constituted the Hon John Pascoe AO CVO, Deputy President.

29    At the second Tribunal hearing expert evidence was adduced on the Irish citizenship question. Mr David Leonard gave expert evidence for the applicant and Dr Stephen Coutts gave expert evidence for the Minister. This evidence is dealt with in more detail below.

30    On 18 December 2019, the first day of the hearing, the applicant made an open settlement offer through his solicitors. The terms of the offer were in effect that the Minister undertake not to cancel the applicant’s ex-citizen visa and, if that undertaking were given, the applicant would withdraw the Tribunal proceeding. The effect of this would be that the applicant would not be a citizen but he would continue to be able to reside in Australia.

31    On 19 December 2019, the second day of the hearing, the open settlement offer was admitted into evidence, against objection, “on the basis that it means nothing other than an offer was made during the course of proceedings”.

32    On 16 January 2020, some weeks after the hearing, the Minister by letter rejected the applicant’s open settlement offer.

33    No evidence of the rejection letter was adduced to the second Tribunal, but on 2 March 2020, the applicant’s further written submissions to the second Tribunal on the Irish citizenship question stated as follows with regard to the rejection of the settlement offer:

On 16 January 2020, the Minister’s representatives informed the Applicant’s representatives that the Minister did not accept their open offer dated 18 December 2019. As a result, these proceedings will continue. They are likely to continue until the Tribunal affirms the decision under review, the Tribunal sets aside the decision under review, or the Applicant dies.

34    On 4 August 2020, the second Tribunal affirmed the decision of the Minister to revoke the applicant’s Australian citizenship. It is an appeal from this decision that is now before this Court.

The second Tribunal hearing and decision

35    After setting out the relevant background to the proceeding and the relevant legislation, the Tribunal put the issues for determination in the following way (at [17]):

•    whether the Tribunal is satisfied it would be contrary to the public interest for the Applicant to remain an Australian citizen and if so, whether the Tribunal is satisfied it should exercise its discretion in section 34(2) of the Act to revoke the Applicant’s Australian citizenship; and

•    whether the Tribunal is statutorily prohibited by section 34(3) of the Act from revoking the Applicant’s Australian citizenship because it is satisfied that to do so would cause the Applicant to “become a person who is not a national or citizen of any country”.

36    The parties did not dispute that the applicant fell within the provisions of s 34(2)(a) and (b)(ii) of the Citizenship Act. It was also not disputed that s 34(3)(a) was satisfied.

37    After summarising the material evidence, the Tribunal turned to each of the two issues it had identified as requiring consideration.

Contrary to the public interest

38    The Tribunal addressed the first issue for determination, characterising it as “whether it would be contrary to the public interest for the applicant to retain his Australian citizenship”: at [44]. In characterising the issue in this way, the Tribunal did not expressly identify, as it had done in its first dot point at [17] (quoted at [35] above), that if the Tribunal were satisfied that it would be contrary to the public interest for the applicant to remain an Australian citizen it would then need to consider whether it was satisfied that it should exercise its discretion in s 34(2) of the Citizenship Act to revoke the applicant’s Australian citizenship. As will be seen, the applicant places some reliance on this in the appeal in this Court.

39    The Tribunal set out a number of authorities relevant to the interpretation of the phrase “public interest”: at [46]-[51]. It thereafter addressed a number of considerations. These included the seriousness of the applicant’s convictions, his lack of remorse, failure to accept that he received a fair trial, breaches by him of his bail conditions, his age and state of health, and his chance of re-offending being low but there nevertheless being a risk of reoffending in the right circumstances: at [52]-[64], [68]-[70], [78]-[79].

40    The applicant had put into evidence the Ray Hadley interview mentioned above (at [18]). He said that the comments made by the Minister were a strong indication that if the applicant’s citizenship were revoked, after which he would be granted an ex-citizen visa, the Minister would then cancel his visa. To this submission, the Tribunal noted comments in Ayoub v Minister for Immigration and Border Protection [2015] FCAFC 83; 231 FCR 513 at [19] (Flick, Griffiths and Perry JJ) that “future exercises of discretion and statutory power are to be resolved when they arise” and therefore it was a future matter for the Minister: at [65]-[67]. Relevantly, the applicant’s removal from Australia to Ireland would not necessarily follow from the Tribunal decision.

41    The Tribunal noted the submission that was made in relation to the COVID-19 situation in Ireland and that the Tribunal should exercise its discretion under s 34(2) of the Citizenship Act because of the consequences for the applicant should he be removed from Australia. The Tribunal gave this little weight because the applicant will not be automatically removed from Australia: at [71]-[72].

42    The Tribunal addressed the applicant’s submission that s 15 of the Age Discrimination Act 2004 (Cth) applied which had been said to be relevant to the Tribunal’s discretion. However, the Tribunal concluded that the section did not apply because s 43(2) precludes its application: at [74]-[76].

43    The Tribunal then noted the open settlement offer that was admitted into evidence. The Tribunal stated (at [77]):

I am not aware of the outcome of any settlement negotiations. However, such negotiations, if indeed they occur, and any future outcome of any settlement offer is a matter to be dealt with in the future and I place no weight on it for the purposes of this decision.

44    The Tribunal then concluded its reasoning under the first identified issue as follows (at [80]):

Accordingly, I am satisfied that it would be contrary to the public interest for the Applicant to retain his Australian citizenship and that the Tribunal’s discretion should be exercised to revoke the Applicant’s Australian citizenship.

45    As will be seen, this paragraph of the Tribunal’s reasons is significant to the first ground of appeal.

Irish citizenship question

46    This question was significant because if the Tribunal were to find that the applicant were a citizen of Ireland, revoking his Australian citizenship would not render him stateless and he would not fall within the provisions of s 34(3)(b) of the Citizenship Act: at [81]. That is to say, if he was not an Irish citizen then his Australian citizenship could not be revoked.

47    The Tribunal put the issues on this question as follows (at [82]):

(1)    Under Australian law, was the applicant an Australian citizen from the date of the Minister’s decision?

(2)    Did the applicant at any time successfully renounce his Irish citizenship between the date of the first Tribunal decision and the decision of the Full Court?

48    As noted, Mr Leonard gave expert evidence for the applicant and Dr Coutts gave expert evidence for the Minister. Both were described as well-qualified to opine on the citizenship question. The relevant Irish statutory provision was s 21(1) of the Irish Nationality and Citizenship Act 1956 as amended, which states:

If an Irish citizen of full age is or is about to become a citizen of another country and for that reason desires to renounce citizenship, he or she may do so, if ordinarily resident outside the State, by lodging with the Minister a declaration of alienage in the prescribed manner, and, upon lodgement of the declaration or, if not then a citizen of that country, upon becoming such, shall cease to be an Irish citizen.

49    Mr Leonard’s opinion was in essence that the applicant’s renunciation of his Irish citizenship could only be triggered once and was, as a matter of Irish law, final, and “couldn’t be undone”. That is to say, if the first Tribunal’s decision had the effect of reinstating the applicant’s Australian citizenship then he ceased to be an Irish citizen on the date of that Tribunal decision, namely 14 December 2017. In the alternative, if the decision of the first Tribunal took the place of the Minister’s decision of 5 May 2016, the applicant ceased to be an Irish citizen as at the date of his declaration of alienage, namely 13 October 2016.

50    While Mr Leonard accepted the proposition that, under Irish law, whether a person is considered a citizen of a foreign country would be decided by the law of that country, he did not believe this changed the applicant’s position under Irish law. He also accepted the proposition that the effect of the Full Court decision was to render the first Tribunal decision as having no effect, but he said this did not change the applicant’s position, indeed it was “irrelevant”. In his report he said that otherwise Irish citizenship law would be subject to the uncertainties and unpredictability of ongoing foreign litigation.

51    Dr Coutts submitted three reports. His view was that the question of whether the applicant was, or was not, an Australian citizen is to be determined in accordance with Australian law, conforming to the plain meaning of the words under Irish law.

52    Dr Coutts’s first report noted that:

[I]f the AAT’s decision was set aside by the Federal Court of Australia, then for the purposes of Irish law, [the applicant] will be deemed not to have been an Australian citizen on 13 October 2016 and not to have become an Australian citizen since that date.

53    However, Dr Coutts conceded that if the first Tribunal decision and the reinstatement of the applicant’s Australian citizenship was prospective (namely, that it had the effect of operating on and from the date on which it was made) regardless of the outcome and effect of any subsequent appeal, then the applicant “would … have ceased to be an Irish citizen on 14 December 2017”, being the date of the first Tribunal’s decision.

54    In his second report, Dr Coutts primarily considered the expert report of the applicant’s former expert, Ms Gráinne Mellon. While Dr Coutts did not amend his overall conclusion, Ms Mellon’s relevant opinion appears to have been that it was arguable that the applicant’s Irish citizenship was effectively renounced at the date of the first Tribunal decision, namely 14 December 2017, on the instructed assumption that the first Tribunal decision “was to set aside ab initio the Minister’s decision to revoke [the applicant’s] citizenship”.

55     Dr Coutts read this as meaning that the:

revocation decision is void ab initio (what I termed as having retrospective effect in the report). This would indicate that [the applicant] was not an Australian citizen at the time of his initial declaration of renunciation and therefore did not lose his Irish nationality on that date (13 October 2016).

56    Dr Coutts did not give weight to the emails from the citizenship helpdesk because they gave no consideration to the case.

57    Dr Coutts’s third report was prepared for the second Tribunal proceeding, which is to say after the Full Court decision. Dr Coutts was instructed to assume that the effect of the Full Court judgment was that the applicant ceased to be an Australian citizen on and from 5 May 2016, the date of the Minister’s revocation decision. On this assumption, Dr Coutts concluded that “at all times since that date, [the applicant] remained a non-Australian citizen, it is my opinion that the applicant is currently an Irish citizen”.

58    The Tribunal then set out its consideration of the Irish citizenship question. The Tribunal noted that it was agreed by both parties and all three experts that the question of the applicant’s Australian citizenship was to be determined according to Australian law.

59    The Tribunal noted that the position under Australian law is quite clear. It relevantly noted the following authorities (at [109]-[110]):

The first Tribunal decision was found by the Full Court of the Federal Court to be affected by jurisdictional error. Therefore, as stated by Gaudron and Gummow JJ in Minister for Immigration and Multicultural Affairs v Bhardwaj (2002) 209 CLR 597 (‘Bhardwaj’) at 614-615 [51]: “a decision that lack[ed] legal foundation and [wa]s properly regarded, in law, as no decision at all”.

This principle was again enunciated by the High Court more recently in Hossain v Minister for Immigration and Border Protection (2018) 264 CLR 123 (‘Hossain’) at 133 [24] by Kiefel CJ, Gageler and Keane JJ, who found that a decision affected by jurisdictional error “is a decision in fact which is properly to be regarded for the purposes of the law pursuant to which it was purported to be made as “no decision at all”. To that extent, in traditional parlance, the decision is “invalid” or “void” (Hossain v Minister for Immigration and Border Protection (2018) 264 CLR 123 (‘Hossain’) 133 at [24]).

60    The applicant relied on Minister for Immigration and Border Protection v CLV16 [2018] FCAFC 80; 260 FCR 482 at [64]: “…the legal and factual consequences of such a decision will ultimately depend upon the particular statutory provisions pursuant to which the decision has been made.” However, the Tribunal’s view was that a careful reading of the Citizenship Act does not demonstrate any clear statutory language which would give force to the applicant’s proposition that the first Tribunal decision should have effect despite being infected with jurisdictional error.

61    In the result, the Tribunal held that the first Tribunal decision was regarded by Australian citizenship law, notably the law that is considered for the purposes of s 21(1) of the Irish Citizenship Act, as “no decision at all”. The Tribunal also put little weight on the emails from the “Citizenship Help Desk – Team 4” given that the relevant details of this case were not considered; they were a routine response to an enquiry.

62    In terms of Mr Leonard’s opinion and the “trigger” point, the Tribunal said (at [126]), among other things, that there was:

a lack of logic in Mr Leonard’s reasoning in proposing that it is irrelevant what happens in Australia under the Australian legal system after the first “trigger”. In my view, it is clear from section 21(1) of the Irish Citizenship Act that the operation of Irish Citizenship law is contingent on Australian law, including decisions of Tribunals and Courts. The fact there is an ongoing process of appeal in Australia is not therefore irrelevant and the outcome of any appeal is clearly relevant.

63    The Tribunal accepted the evidence of Dr Coutts, relevantly at [134]:

The effect of the Federal Court decision was that the first decision of the Tribunal effectively never existed; it was not effective for any period. Furthermore, the argument as to the effect of section 6(5) of the Irish Citizenship Act does not help the Applicant’s case.

64    The Tribunal concluded that it was satisfied that the applicant was an Irish citizen at the date of the Minister’s decision and remains an Irish citizen, despite his attempts to renounce that citizenship. Therefore, the ultimate decision of the Tribunal was that it was correct and preferable to affirm the decision of the Minister.

Grounds of appeal in this proceeding

65    There are four grounds of appeal. In summary they are:

(1)    The Tribunal erred in failing to separately consider whether it was contrary to the public interest for the applicant to retain his Australian citizenship and whether the Tribunal should exercise its residual discretion to revoke the applicant’s Australian citizenship.

(2)    The Tribunal failed to have regard to a submission, relevant evidence and/or an integer of the applicant’s claims. This ground was in relation to the Tribunal’s consideration of the applicant’s open settlement offer.

(3)    The Tribunal did not give any consideration to the submissions made to it that any uncertainty or doubt on what the Tribunal accepted was the novel question of whether the applicant is a citizen of Ireland was a matter that the Tribunal should give consideration to in exercising its residual discretion even if the Tribunal found that the applicant is a citizen of Ireland.

(4)    The Tribunal erred as to a jurisdictional fact in not finding that the applicant had ceased with effect from 14 December 2017 to be a citizen of Ireland.

Consideration

Ground 1

66    In respect of ground 1, the applicant submits that the Tribunal failed to consider whether it should exercise its discretionary power in s 34(2) of the Citizenship Act to revoke his Australian citizenship because it conflated that power with the precondition to its enlivenment in s 34(2). To put this differently, the applicant submits that the Tribunal conflated the following (see above at [35] and [38]):

(1)    whether the Tribunal is satisfied that it would be contrary to the public interest for the applicant to remain an Australian citizen; and

(2)    if the Tribunal is so satisfied, whether it should exercise its discretionary power in s 34(2) of the Citizenship Act to revoke, or not to revoke, the applicant’s Australian citizenship.

67    With reference to [80] of the second Tribunal decision (quoted at [44] above), the applicant submits that this relates only to the first dot point at [35] above. It is then said that the mere fact that the public interest justified the applicant not being entitled to the benefits of being an Australian citizen did not automatically mean that the statutory discretion should be exercised.

68    This ground invites the Court to read the Tribunal’s reasons in a manner divorced from how the applicant put his case before the Tribunal and mischaracterises those reasons. For the reasons that follow, fairly read, the Tribunal’s reasons deal with both the public interest test and its residual discretion under s 34(2) of the Citizenship Act.

69    Before the Tribunal, the applicant argued that the evidence that he presented went to both the public interest test and the residual discretion. So much is clear from his statement of facts, issues and contentions (SFIC). The SFIC relevantly presented before the Tribunal a number of considerations in support of a finding that he should remain an Australian citizen. They included his character, his prospective return to Ireland if his citizenship were cancelled, his age and health and the protection of the Australian community. The applicant then stated in his SFIC that the same considerations provided reasons “why the Tribunal should exercise its discretion not to cancel his citizenship.”

70    Separately from the considerations that were said to be common to both questions, the SFIC also made separate submissions relating to the Age Discrimination Act that were said to be “peculiarly in respect of the residual discretion”. Also, in his reply submissions to the Tribunal, the applicant made submissions relating to COVID-19 in Ireland which were identified as relating to only the residual discretion.

71    The Tribunal approached its reasons in response to the submissions put by the applicant.

72    The Tribunal considered both the Age Discrimination Act and COVID-19 submissions before its conclusion at [80], and in relation to COVID-19 it acknowledged that the submission was made as being relevant to the Tribunal’s discretion. In other words, the submissions going to only the discretion were expressly considered by the Tribunal, which is a powerful indication that the Tribunal did not overlook that it was exercising a discretion.

73    It is also evident from the language of the Tribunal’s reasons that it did not fail to separately consider the two tests. This is apparent from the acknowledgment of the discretion in the first dot point at [17] and in relation to the COVID-19 submission at [71], and in its conclusion at [80]. Furthermore, and as submitted by the respondent, prefacing [80] with the use of the word “accordingly” was suggestive of the discretion being exercised on the basis of everything that preceded the use of that word: see Minister for Immigration and Border Protection v Tran [2015] FCA 546; 232 FCR 540 at [26] per Jagot J.

74    In determining what the public interest required and in exercising the discretion, the Tribunal had regard to all of the factors which the applicant said it ought to have regard to. There was no such conflation as contended by the applicant. Indeed, it is difficult to see what else the Tribunal could have done other than make a bare statement to the effect that, for the same reasons, it considers that the discretion in s 34(2) should be exercised to revoke the applicant’s Australian citizenship.

75    Ground 1 therefore fails.

Ground 2

76    In respect of ground 2, the applicant says that in his submissions to the second Tribunal dated 2 March 2020 on the Irish citizenship question, he advised the Tribunal of the Minister’s rejection of the settlement offer which the Tribunal then failed to consider.

77    The applicant thus submits that the Tribunal failed in its duty to consider the submissions made about the rejected offer. He submits that had the Tribunal appreciated that the offer was rejected, and taken that into account, its reasoning process would have been different and it may have placed some weight on the submissions concerning the offer. In this regard the applicant relies on the observations of the Full Court in Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 184; 236 FCR 593 (at [46]-[49]) relating to the Tribunal’s failure to consider certain evidence that went directly to the grant of a protection visa.

78    There are a number of difficulties with this ground.

79    First, the open settlement offer was received by the Tribunal on a limited basis. That basis was nothing more than that an offer was made in the proceedings. The Tribunal then dealt with the offer at [77]: “it was on its face of no evidentiary value and that it only served to show that such an offer was made.” The Tribunal’s reasoning in respect of the making of the offer was thus consistent with the basis on which the tender of the letter was accepted: that an offer had been made. The tender of the open settlement offer letter did not go any further than this.

80    Relatedly, the applicant’s submissions on the offer to the Tribunal were not clearly articulated. They appeared in the closing paragraphs of a post-hearing written submission that dealt with an unrelated and discrete topic, being whether he had successfully renounced his Irish citizenship. A review of all the applicant’s submissions before the Tribunal shows that the reference to the offer takes up a total of three lines in the applicant’s concluding post-hearing submission on citizenship and says only that the Minister did not accept the offer. There was no elaboration on this point by the applicant such as that a particular inference should be drawn from the rejection. Rather, it was just observed that the proceedings would continue.

81    Put differently, the submission was not a “a substantial, clearly articulated argument”, the ignoring of which may result in jurisdictional error: Minister for Immigration and Border Protection v DRP17 [2018] FCAFC 198; 267 FCR 492 at [47] per Jagot, Rangiah and Banks-Smith JJ (while this decision related to s 501CA the Migration Act, it has been applied in the Citizenship Act context: see Minister for Home Affairs v Waraich [2020] FCA 1513 at [32] per Anastassiou J).

82    Secondly, the terms of the offer pertain to the potential future exercise of a discretion to cancel the applicant’s ex-citizen visa under the Migration Act. This is a different statutory power with which the Tribunal was not concerned. The Tribunal’s reasons made this point, namely that it was a “future matter” and that removal from Australia “would not necessary follow from [its] decision on the application”. The statement in Ayoub at [19] correctly guided the Tribunal: “future exercises of discretion and statutory power are to be resolved when they arise”. The exercise of the Minister’s discretion in relation to the cancellation of the applicant’s ex-citizen’s visa had not yet arisen.

83    Ground 2 therefore fails.

Ground 3

84    In respect of ground 3, the applicant submits that the Tribunal ignored its submissions that even if the Tribunal were to conclude that the applicant was an Irish citizen, the uncertainty about this issue was a matter relevant to the statutory discretion of the Tribunal under s 34(2) of the Citizenship Act. These submissions were said to have been made on three different occasions: the applicant’s SFIC dated 21 August 2019, his submissions dated 2 March 2020, and his submissions in reply dated 15 April 2020.

85    The uncertainty was said to arise from the comments made by the Irish authorities in January 2017, the Full Court decision, the competing views of the experts, the fact that the Tribunal acceded to the respondent’s suggestion that further written submissions be made on the issue after the hearing, and the application for stay orders from the Tribunal. With regard to the latter point, the applicant submits that stay orders were made because of the “somewhat novel question in relation to whether the applicant is an Irish citizen”. It is said that there was in effect a failure to engage in an active intellectual process on a clearly articulated ground raised in the representations provided by the affected person: Ali v Minister for Home Affairs [2020] FCAFC 109; 278 FCR 627 at [45].

86    The existence of such uncertainty is said to be a powerful reason for the Tribunal to exercise its residual discretion to set aside the decision under review. For example, it was said before the Tribunal that the applicant could be exposed to indefinite detention if the Irish government were unwilling or unable to permit his return to that country.

87    Appeal ground 3 is premised on two points: first, that there was uncertainty with regard to whether or not the applicant remained an Irish citizen, and, secondly, that if there was uncertainty, it was not properly taken into consideration.

88    As to the first point, the Tribunal’s findings are clear that there was no remaining uncertainty about the applicant’s Irish citizenship or any risk of de facto statelessness. The Tribunal considered the parties’ submissions on Irish citizenship in detail. The Tribunal found that Mr Leonard’s evidence “lacked logic”: at [126]. On the other hand, the Tribunal considered the evidence of Dr Coutts to be clear and consistent: at [134]. Most relevantly, at [141] the Tribunal noted that it was satisfied that “the Applicant was an Irish citizen at the date of the Minister’s decision and remains an Irish citizen, despite his attempts to renounce that citizenship.” There is no evident uncertainty in this statement.

89    The comments made in the emails from the Irish authorities were dealt with by the Tribunal as identified above; they gave rise to no uncertainty. The Tribunal also dealt with the submission that revocation of the applicant’s Australian citizenship would lead to him being removed to Ireland, which is the occurrence on which the so-called uncertainty with regard to the Irish citizenship question is said to operate, i.e., that he would be removed to Ireland but possibly not accepted there on the basis that he was no longer an Irish citizen. In short, revocation of Australian citizenship would not necessarily lead to removal to Ireland because the applicant would have an ex-citizen visa, and whether or not that would be cancelled and thus the consequences of such cancellation was not a question to be considered at that stage.

90    With regard to the Full Court’s comments on the Irish citizenship issue, and as already noted, the Court deliberately avoided expressing a view. Perram J relevantly said (at [28]) “I express no concluded view” and (at [31]) “the citizenship argument is not before the Court”. Any uncertainty arises only because the Full Court did not consider the question, not because of anything it said or concluded about it. The Tribunal, however, did consider the question and found there to be no uncertainty, notwithstanding that it was a novel question.

91    With regard to the stay order, it was for 28 days only and has long since elapsed. It is difficult to see how any uncertainty arose in this regard.

92    Given the findings on the first point, the second point does not arise. However, for the reasons given above at [89], it was considered by the Tribunal.

93    Therefore ground 3 fails.

Ground 4

94    The applicant changed his position in relation to ground 4 in his reply submissions. The amended notice of appeal states that “[t]he Tribunal erred as to a jurisdictional fact in not finding that the applicant had ceased with effect from 14 December 2017 to be a citizen of Ireland.” This quite clearly invites the Court to direct its inquiry to whether or not the applicant was as a matter of law and fact an Irish citizen. However, in his reply submissions the applicant conceded that the relevant jurisdictional fact under s 34(3)(b) of the Citizenship Act is the formation of the state of satisfaction, rather than the underlying facts to which that state of satisfaction is directed. That is to say, the applicant accepted what had been submitted by the Minister, namely that s 34(3)(b) expresses what is increasingly referred to as a subjective jurisdictional fact.

95    The applicant submits as follows:

(a)    The Tribunal failed to have regard to, or to form a correct legal understanding in relation to, the character of the first Tribunal decision as a “thing in fact”, despite the fact that it was affected by jurisdictional error. In this regard the applicant relied on the reasoning of Gageler J in New South Wales v Kable [2013] HCA 26; 252 CLR 118 at [52], relevantly: “yet a purported but invalid law, like a thing done in the purported but invalid exercise of a power conferred by law, remains at all times a thing in fact.”

(b)    That error of law vitiated the lawful formation of the relevant state of satisfaction under s 34(3)(b) of the Citizenship Act.

(c)    In the absence of that state of satisfaction, the required jurisdictional fact for the exercise of power did not exist.

96    With regard to (a) above, it is said by the applicant that the existence in fact that gives rise to legal consequences of the decision of the first Tribunal is demonstrated by the fact that, as a result of the first Tribunal’s purported exercise of power, upon his release on parole on 19 December 2017, which was five days after the decision of the first Tribunal, the applicant was not subject to automatic cancellation of his visa by reason of s 501CA and s 501(3A) of the Migration Act. It is said this would have applied had the first Tribunal affirmed the Minister’s revocation of citizenship. Therefore, so it is said, the first Tribunal decision had “very important consequences for the position of the applicant under the Migration Act” and clearly existed as a thing in fact from which legal consequences could follow.

97    The court may only review the formation of a state of satisfaction on limited grounds, including that the decision-maker did not address the question formulated by the provision, considered an irrelevant matter or disregarded a relevant matter, or engaged in illogical or irrational reasoning, or the conclusion is affected by some mistake of law, or there was an absence of good faith, among other things. See Avon Downs Pty Ltd v Commissioner of Taxation [1949] HCA 26; 78 CLR 353 at 360 per Dixon J; Buck v Bavone [1976] HCA 24; 135 CLR 110 at 118-119 per Gibbs J; Ali at [39]-[42].

98    The purpose of the use of such a word as “satisfied” is a well-established drafting technique so as to limit curial review to incorporate a subjective element as a condition to the operation of a provision or to the enlivening of a power: see Commissioner of Taxation v Addy [2020] FCAFC 135 at [134] per Derrington J; Minister for Immigration & Multicultural Affairs v Eshetu [1999] HCA 21; 197 CLR 611 at [130] per Gummow J; and Ali at [42].

99    In Eshetu at [137], Gummow J noted that:

where the criterion of which the authority is required to be satisfied turns upon factual matters upon which reasonable minds could reasonably differ, it will be very difficult to show that no reasonable decision-maker could have arrived at the decision in question.

100    The respondent relied on Makarov v Minister for Home Affairs (No 2) [2020] FCA 1275, which addresses the state of satisfaction required by s 34(3)(b) of the Citizenship Act. The case concerned a challenge by Mr Makarov to a decision to revoke his Australia citizenship. The revocation was purportedly made under s 34(2) of the Citizenship Act. It was said that Mr Makarov also had Ukrainian citizenship. Mr Makarov was convicted of multiple child sex offences and it was on this basis that the Minister decided to revoke his Australian citizenship. Mr Makarov sought an order pursuant to s 39B of the Judiciary Act quashing the Minister’s decision. His contention was that the Minister was prevented from making his decision because it would have rendered him stateless and he would adduce expert evidence on that contention.

101    The question before the Court took the following form (at [9]):

In order to decide whether the Minister exceeded his power under s 34 of the Australian Citizenship Act 2007 (Cth) by revoking the applicant’s Australian citizenship, is the question whether, by doing so, the applicant would become “a person who is not a national or citizen of any country” a jurisdictional fact, so that the Court may receive evidence on the question?

102    Mr Makarov’s submission was that, among other things, the mere fact that the Minister formed “a state of subjective satisfaction” as to the subject-matter of the provision is “an insufficient or incomplete answer to the question of whether the Minister’s exercise of the power in s 34(2) … was lawful”: at [15].

103    Katzmann J observed that the fundamental difficulty with Mr Makarov’s submission was that it failed to confront the text. Her Honour held that on a plain reading of s 34(3)(b), the criterion which precludes the Minister from revoking Australian citizenship was not that the person would become a person who is not a national or citizen of any country. Rather, it is that the Minister is satisfied that that they would: at [18]. Her Honour explained that the legislative purpose of such a provision is to limit the scope of judicial review. That is to say, the role of the court is not to decide whether the matter in respect of which the Minister is required to form an opinion or reach a state of satisfaction actually existed. Rather, it is to ascertain whether the decision-maker had formed the requisite opinion or reached the requisite state of satisfaction according to law: at [19]. In such a case, it is the opinion, rather than the underlying facts, which is the criterion conditioning the exercise of the power (at [20]), citing Commissioner of Taxation v Addy [2020] FCAFC 135 at [134] per Derrington J and the authorities referred to there; Minister Administering the Crown Lands Act v New South Wales Aboriginal Land Council [2009] NSWCA 151 at [33] (Basten JA, Beazley and Tobias JJA agreeing). See also Minister for Immigration and Multicultural and Indigenous Affairs v SGLB [2004] HCA 32; 78 ALJR 992 at [37].

104    The result was that the answer to the question was “no”. Accordingly, evidence on whether Mr Makarov would in fact have become stateless on the revocation of his citizenship was inadmissible: at [25].

105    It was not contended in this appeal that Makarov is wrong. The appeal therefore presents no occasion to consider whether s 34(3)(b) indeed expresses a subjective jurisdictional fact.

106    It might be thought that the result in Makarov is unfortunate. That is because whether or not someone is at a particular time a citizen of another country is an inquiry that admits of a binary outcome that is either right or wrong; the decision in question is not multi-faceted or evaluative, which are qualities of decisions that lend themselves most readily to classification as subjective jurisdictional facts. Moreover, the result in any particular case may be that the Tribunal (in a merits review from the decision of the Minister) may be wrong and since the decision can only be reviewed on limited grounds, someone may be rendered stateless by the wrong decision contrary to Australia’s obligation under international law. That is that a contracting state to the United Nations Convention on the Reduction of Statelessness, opened for signature 30 August 1961, 989 UNTS 175 (entered into force 13 December 1975; [1975] ATS 46), by Art 8(1), shall not deprive a person of its nationality if such deprivation would render the person stateless. All of that can, however, be put to one side for the purposes of deciding the appeal.

107    This being an appeal under s 44 of the AAT Act, the applicant confined the ground of appeal to a question of law. As to what that means, see Haritos v Commissioner of Taxation [2015] FCAFC 92; 233 FCR 315 at [192]-[202] per Allsop CJ, Kenny, Besanko, Robertson and Mortimer JJ.

108    The application of s 34(3) to the applicant’s circumstances required the Tribunal to resolve two disputes. First, there was a legal dispute about the status, as a matter of Australian law, of the first Tribunal decision in the light of the earlier judgment of this Court that it was affected by jurisdictional error. The applicant contended that the first Tribunal decision had some ongoing status as a “thing in fact”, despite that jurisdictional error. The Minister, on the other hand, argued that the first Tribunal decision was, for the purposes of the Act, “no decision at all”.

109    Secondly, the Tribunal was required to determine a factual dispute about the consequences, in Irish law, of the status of the first Tribunal decision. That dispute was a factual one because the content of foreign law is a question of fact: Neilson v Overseas Projects Corporation of Victoria Ltd [2005] HCA 54; 223 CLR 331 at [115] per Gummow and Hayne JJ. The Tribunal had the assistance of expert evidence about the content of Irish law.

110    It was important that the Tribunal determine the legal dispute before determining the factual dispute. That was because the experts made different assumptions about the status of the first Tribunal decision as a matter of Australian law. The reliance that could be placed on each expert opinion varied depending on whether those assumptions were proved.

111    All the experts agreed that whether a person “is or is about to become a citizen of another country” is governed by the law of the other country, in this case Australian law. In this regard, the comments of the High Court per Kiefel CJ, Gageler and Keane JJ in Hossain v Minister for Immigration and Border Protection [2018] HCA 34; 264 CLR 123 (at [24]) are instructive, relevantly:

To describe a decision as “involving jurisdictional error” is to describe that decision as having been made outside jurisdiction. A decision made outside jurisdiction is not necessarily to be regarded as a “nullity”, in that it remains a decision in fact which may yet have some status in law. But a decision made outside jurisdiction is a decision in fact which is properly to be regarded for the purposes of the law pursuant to which it was purported to be made as “no decision at all”. To that extent, in traditional parlance, the decision is “invalid” or “void”. [References omitted.]

112    This passage makes clear that the first Tribunal decision had no effect under the law to which s 21(1) of the Irish Citizenship Act directed attention, i.e., the Australian Citizenship Act. If it had no legal effect under Australian law, it follows that from the time that the Minister made the revocation decision the applicant was not under Australian law an Australian citizen. The relevance of Hossain was raised by the respondent in its submissions before the Tribunal and is cited in the Tribunal’s reasons at [110] and relied on at [119]. This conclusion was rational and logical.

113    The applicant’s reliance on Kable and the “thing in fact” argument is misconceived. A similar argument was run before the Tribunal. The Tribunal well understood that the applicant’s contention was that the first Tribunal decision had some residual operation for the purposes of the Citizenship Act but found those submissions to be unpersuasive. For example, at [111] of the Tribunal’s reasons it noted the applicant’s submissions seeking to distinguish Minister for Immigration and Multicultural Affairs v Bhardwaj [2001] HCA 71; 209 CLR 597 and Plaintiff S157/2002 v Commonwealth [2003] HCA 2; 211 CLR 476 from the applicant’s case, specifically the consequences of the Full Court decision made some 10 months after the first Tribunal decision that was found to have been affected by jurisdictional error and the application of Irish law.

114    With regard to the contention that the Tribunal did not grapple with the “character” of the first Tribunal decision, this is also misconceived. It is misconceived for many of the reasons already given but also because the applicant has not and cannot show how the operation of the Citizenship Act gives legal force to a decision affected by jurisdictional error. The Citizenship Act is central to any analysis because it is that Act that gave the first Tribunal decision effect. The applicant cannot side step the operation of the Citizenship Act by asserting that the first Tribunal decision was a thing in fact under s 21(1) of the Irish Citizenship Act. That is because Australian citizenship was to be decided pursuant to Australian law under s 21(1).

115    For completeness, Kable also does not assist the applicant for the following reason. Paragraph [52] of that decision goes on to relevantly say:

The action so taken might then have consequences for the creation or extinguishment or alteration of legal rights or legal obligations, which consequences do not depend on the legal force of the thing itself.

116    The consequences in this proceeding do depend on the legal force of the thing itself, that thing itself being the decision made by the first Tribunal.

117    The Tribunal therefore resolved the legal dispute by concluding that the first Tribunal decision was to be treated, for the purposes of Australian law, as “no decision at all”: at [116]-[119]. There is no error in the Tribunal’s reasoning or conclusion. Its approach involved the orthodox application of established authority.

118    The Tribunal then considered the second, factual dispute. It rejected the evidence of the applicant’s expert, Mr Leonard, to the effect that the applicant lost his Irish citizenship when the first Tribunal decision was made, and that the earlier Full Court decision did not change that result: at [124]-[126]. The Tribunal’s rejection of Mr Leonard’s evidence was unsurprising and logical. Once the Tribunal found that the first Tribunal decision was, for the purposes of the Citizenship Act, “no decision at all”, it followed that the applicant had not been an Australian citizen at any time on and from the date of the Minister’s decision, and the applicant’s renunciation of his Irish citizenship could not be effective.

119    The Tribunal accepted the evidence of Dr Coutts. His evidence accounted for the status of the first Tribunal decision, as a matter of Australian law, as “no decision at all”. In opining as to the applicant’s Irish citizenship status, Dr Coutts assumed that the effect of the first Tribunal decision was that the applicant had not, as a matter of Australian law, been an Australian citizen at any time after the Minister’s decision, and applied Irish law to his circumstances on the basis of that assumption: at [98]-[100], [129]-[134].

120    The Tribunal had careful regard to the evidence before it and resolved the relevant questions against the applicant. In doing so, the Tribunal did not make any error, let alone on a question of law.

Conclusion

121    The appeal should be dismissed. There is no apparent reason why the costs should not follow the result.

Associate:

Dated:    28 May 2021