Federal Court of Australia

Waraich v Minister for Home Affairs [2021] FCAFC 155

ORDERS

THE COURT ORDERS THAT:

1.    The appeal be dismissed.

2.    The appellant pay the first respondent’s 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    The appellant, Randeep Singh Waraich, is a former Australian citizen who presently holds an ex-citizen visa. He appeals from a judgment setting aside the decision of the second respondent, the Administrative Appeals Tribunal. The Tribunal reversed the decision of the first respondent, the Minister for Home Affairs, to revoke the appellant’s citizenship, which the appellant had obtained by conferral. The chain of decisions culminating in the present appeal is as follows.

2    On 9 January 2018, the Minister exercised his discretion to revoke the appellant’s citizenship under s 34(2) of the Australian Citizenship Act 2007 (Cth) because the appellant had been convicted and sentenced for offences under s 50(1) of the Citizenship Act and s 234(1)(c) of the Migration Act 1958 (Cth) and he was satisfied that it would be contrary to the public interest for the appellant to remain an Australian citizen.

3    The appellant sought review of the Minister’s decision in the Tribunal. 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; (1992) 175 CLR 408 at 425 (Brennan J). On 5 December 2018, the Tribunal set aside the Minister’s decision and substituted a decision that the appellant was entitled to have the revocation of his Australian citizenship reversed.

4    The Minister then brought an appeal in this Court in exercise of his statutory right to appeal on a question of law under s 44(1) of the AAT Act. On 21 October 2020, the primary judge upheld the Minister’s appeal, set aside the Tribunal’s decision and remitted the application to the Tribunal to be heard and determined according to law.

5    The appellant now exercises his right to appeal from the decision of the primary judge. To succeed the appellant must demonstrate error in the decision of the primary judge. The appellant raises four grounds of appeal. The first ground contends that although the Tribunal erred in misconstruing s 34(2)(c) of the Citizenship Act, the primary judge was wrong to find that the Tribunal’s error was material. The second to fourth grounds are concerned with the primary judge’s conclusions that the fact-finding process of the Tribunal was infected by error. Again, the appellant contends that the primary judge erred in treating the Tribunal’s errors as material.

6    Notwithstanding the focus on materiality in the notice of appeal, it is to be borne in mind that the jurisdiction conferred by s 44(1) of the AAT Act is directed to questions of law. A question of law within s 44 is not confined to jurisdictional error but extends to a non-jurisdictional question of law: Allan v Transurban City Link Ltd [2001] HCA 58; (2001) 208 CLR 167 at 172 – 173 [11] (Gleeson CJ, Gaudron, Gummow, Hayne and Callinan JJ) ; Haritos v Commissioner of Taxation [2015] FCAFC 92; (2015) 233 FCR 315 at [62], [135], [202] (Allsop CJ, Kenny, Besanko, Robertson and Mortimer JJ). Statutory construction, for example, is always a question of law (Mark Aronson, “Unreasonableness and Error of Law”, (2001) 24(2) UNSW Law Journal 315 at 330) and an error in statutory construction will always be an error of law, however an error in statutory construction will not always be a jurisdictional error.

7    For the reasons that follow, no error has been demonstrated in the decision of the primary judge and the appeal must be dismissed.

8    Before turning to the grounds and substance of the appeal, it is convenient to set out the relevant legislation and summarise the background of the matter.

Background

9    The appellant was born in India in 1977, arriving in Australia from India on a sub-class 560 student visa on 9 February 1998. At that time, he used the name, Amardeep Singh. That visa was cancelled but later reinstated by the Immigration Review Tribunal, the functions of which are now performed by the Tribunal.

10    On 30 December 1999, the appellant applied for, but was unsuccessful in obtaining, a protection visa. He subsequently departed Australia in June 2002 as an unlawful non-citizen.

11    On 28 February 2004, the appellant married. On 26 June 2004, as a dependent on his wife’s student visa, the appellant returned to Australia using the name, Randeep Singh Waraich.

12    On 8 September 2006, the appellant’s wife applied for a skilled migration visa. The appellant, under the name Randeep Singh Waraich, was included as a dependent on that application.

13    On 14 December 2008, the appellant was granted a permanent visa by reason of his inclusion on his wife’s application.

14    On 14 November 2009, Australian citizenship was conferred on the appellant, in the name Randeep Singh Waraich.

15    The appellant did not declare his change of name or past visa history in either of his visa applications in 2004 and 2006, or in his citizenship application in 2009.

16    In March 2009, using the name Randeep Singh Waraich, the appellant registered with the Victorian Department of Births, Deaths and Marriages. The appellant’s name change was discovered by VicRoads when it was recognised that the photos on the licences of Amardeep Singh and Randeep Singh Waraich appeared to be of the same person. VicRoads referred its discovery to the Department of Immigration and Citizenship and the appellant was interviewed by the Department on several occasions in 2012.

17    On 27 November 2013, the appellant pleaded guilty and was convicted of:

(a)    an offence under s 50(1) of the Citizenship Act for making a statement in relation to an application for Australian citizenship knowing the statement to be false and misleading in a material particular (citizenship conviction);

(b)    two offences under s 234(1)(c) of the Migration Act for furnishing or causing to be furnished for official purposes a document containing a statement or information that was false or misleading in a material particular (migration convictions).

18    As noted at the outset, it was some considerable time later, on 9 January 2018, that the appellant’s citizenship was revoked. The appellant immediately became the holder of an ex-citizen visa upon revocation of his citizenship.

19    At the time of his application to the Tribunal, the appellant resided in Australia with his wife and two young children and ran his own window tinting business. As the holder of an ex-citizen visa, the appellant is permitted to live, work and study in Australia but cannot return to Australia if he leaves. This would preclude the appellant from, for example, travelling to India and returning to Australia.

Relevant legislation

20    Section 34(2) of the Citizenship Act relevantly provides:

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:

(i)    the person has been convicted of an offence against section 50 of this Act…in relation to the person’s application to become an Australian citizen;

(ii)    …

(iii)    the person obtained the Minister’s approval to become an Australian citizen as a result of migration-related fraud within the meaning of subsection (6);

(iv)    …; and

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

21    For the purpose of s 34(2)(b)(iii), migration-related fraud extends to a conviction of an offence against s 234 of the Migration Act: Citizenship Act, s 34(6)(a)(i). Section 34(7) provides that s 34(6) “does not apply to a person in respect of an offence if the Minister is satisfied that the act or omission that constituted the offence was not in any way (whether directly or indirectly) material to the person becoming a permanent resident”.

The Tribunal’s decision

22    The Tribunal summarised the background facts and the appellant’s convictions. Under the heading “Consideration”, the Tribunal addressed the appellant’s past behaviour, the lapse of time between his interview and convictions and his contribution to the community before moving to consider the residual discretion and the application of s 34(2)(c).

23    The Tribunal was satisfied that ss 34(2)(a) and (b) were met but was not satisfied that the public interest condition in s 34(2)(c) was met.

24    In the course of considering the application of s 34(2), the Tribunal first concluded that s 34(2)(c) was not satisfied. Next, and notwithstanding that the statutory condition for the exercise of the power had not been fulfilled, the Tribunal purported to go on to determine that the revocation power should not be exercised “as a matter of discretion”.

25    The Tribunal’s reasons for concluding that the appellant’s citizenship should not be revoked as a matter of discretion are set out at [64] – [65] of its reasons:

[64]    Such factors include the substantial delay in prosecuting him which has unreasonably tormented him and his wife and their family over a long period of time. I take into account his pleas of guilty before the court. Further I accept that his remorse and regret are genuine and deeply felt. Also though, I take into account the fact that he was heavily fined by the court and that he had no prior convictions. I regard this as meaning that the Applicant has otherwise been a law-abiding member of the Australian community, Moreover, I have no reason to expect that the Applicant will re-offend, which the sentencing magistrate was confident about, and it was not argued in any event that there would be any risk of such.

[65]    I consider I could rest my decision at this point but such factors also include the possible impact upon his family of the Applicant’s citizenship standing as revoked and his good works in the Australian community generally.

26    After setting out its reasons for concluding that the power to revoke would not be exercised “as a matter of discretion”, the Tribunal then returned to its consideration of the public interest condition.

27    The Tribunal used the heading “Contrary to public interest versus in the public interest” (emphasis in original) in this section of its reasons. In relation to the public interest condition, the Tribunal stated that there was a “significant and critical” difference between the requisite assessment of whether it is “contrary to the public interest for a person to remain an Australian citizen” and an assessment of whether it would be “in the public interest for a person no longer to remain an Australian citizen”:

[71] I also note, however, that section 34(2)(c) is expressed in terms of it being contrary to the public interest for a person to remain an Australian citizen. It is not expressed in terms of it being in the public interest for a person no longer to remain an Australian citizen. The difference between these two formulations is significant and critical. Some submissions or remarks of Counsel for the Minister I consider blurred this distinction and did not faithfully observe it (emphasis in original).

28    The Tribunal held that for it to be contrary to the public interest for a person to remain an Australian citizen it was necessary to show more than the mere convictions and the Minister had not done so.

29    The Tribunal considered that it was not contrary to the public interest for the appellant to remain an Australian citizen because of the “significant contributions he has made to Australian society” and the “investment” he had made in Australia. The Tribunal was apparently unable to understand how deterrence was relevant to whether it was “contrary” to the public interest that a person should remain an Australian citizen, although it found that deterrence “in this matter” had been “achieved” by “the criminal court sentencing”. The Tribunal considered that “[m]erely being convicted does not make it self-evidently contrary to the public interest for a person to remain an Australian citizen”.

30    The Tribunal also considered it was not contrary to the public interest for the appellant to remain an Australian citizen “by ensuring he is not or may not be singled out in his household or in the community as the only one in his household who is not an Australian citizen by reason of offences committed many years ago and for which there were unexplained delays”, his admission of wrongdoing for which he has “paid the price”, the absence of other convictions, and that the appellant had “no prospect of reoffending”.

The Primary Judge’s decision

31    The Minister’s appeal below pleaded five errors of law in the Tribunal’s decision. The primary judge allowed the appeal on all five grounds. The first three grounds of appeal and the latter two grounds were interrelated. The primary judge dealt with the grounds in two tranches.

The Tribunal’s failure to consider evidence and to respond to a substantial argument advanced by the Minister

32    Grounds 1 to 3 were addressed to the Tribunal’s alleged failure to consider significant and important evidence and to respond to a substantial argument advanced by the Minister. Grounds 1 to 3 correspond to grounds 2 to 4 of the present appeal.

33    The primary judge noted that the assessment of the veracity and weight to be given to evidence before the Tribunal is plainly a matter for the Tribunal and was cognisant that to substitute his own assessment of the evidence for that of the Tribunal would be to impermissibly enter the field of merits review. His Honour concluded however that in this case the Tribunal entirely failed to consider relevant evidence when assessing the merits of the application before it and in doing so failed to discharge its statutory duty.

34    The Minister’s principal contention in relation to grounds 1 to 3, which the primary judge accepted, was that the Tribunal failed to consider the appellant’s oral evidence, in particular his evidence in cross examination of admitted instances of dishonesty that were not directly the subject of the citizenship conviction or the migration convictions. The evidence which the Tribunal failed to consider included concessions by the appellant that he had been dishonest in relation to his protection visa application (including by submitting false newspaper articles), that he had made false statements to VicRoads in relation to his application for a driver’s licence, and that he had made false statements in his witness statement to the Tribunal. The primary judge accepted that the Tribunal’s failure to consider this evidence was a legal error and held that the evidence was material to a rational assessment of the decision before the Tribunal and to an assessment of the appellant’s prospect of re-offending, his character and remorse. Further, his Honour held that it was a legal error for the Tribunal to have construed s 34(2) of the Citizenship Act as limiting, in the exercise of its power, consideration of the appellant’s conduct to only conduct or matters of which he had been convicted and which fell within ss 34(2)(b)(i) to (iv) of the Citizenship Act. His Honour observed that s 34(2) of the Citizenship Act contains no such express distinction and held that there is no reason in principle to apply such a distinction. In concluding that the Tribunal was legally required to consider the broader evidence of dishonesty in deciding whether to revoke the cancellation decision but failed to do so, his Honour relied on the reasoning in Minister for Immigration and Border Protection v SZMTA [2019] HCA 3; (2019) 264 CLR 421 at 435-436 [13] (Bell, Gageler and Keane JJ).

35    The primary judge accepted that the Minister’s submissions before the Tribunal concerning the appellant’s admitted falsification and dishonesty over and above the dishonesty evidenced by his convictions were “seriously advanced” and “worthy of serious consideration”: Dennis Willcox Pty Ltd v Federal Commissioner of Taxation [1988] FCA 123; (1988) 79 ALR 267 at 276 (Jenkinson JJ, Woodward and Foster JJ agreeing). In finding legal error by the Tribunal, the primary judge applied the Full Court’s reasoning in relation to jurisdictional error occasioned by overlooking a substantial, clearly articulated argument in Minister for Immigration and Border Protection v DRP17 [2018] FCAFC 198; (2018) 267 FCR 492 at 502 [47] (Jagot, Rangiah and Banks-Smith JJ) (a decision related to s 501CA the Migration Act) as apposite, noting that the passage has been cited with approval numerous times. The primary judge’s application of DRP17 in the context of the Citizenship Act has since been cited by the Full Court: Egan v Minister for Home Affairs [2021] FCAFC 85 at [81] (Nicholas, Stewart and Abraham JJ).

36    The primary judge also found that the Tribunal had erred in law in misunderstanding the Minister’s submission that the appellant was at risk of re-offending when it concluded that no such submission had been made, when in fact the Minister did press that submission.

The Tribunal misunderstood and misapplied s 34(2)(c) of the Citizenship Act

37    Grounds 4 and 5 were addressed to the Tribunal’s conclusion that it was not satisfied “it would be contrary to the public interest for the appellant to remain an Australian citizen” pursuant to s 34(2)(c) of the Citizenship Act. Grounds 4 and 5 of the appeal below correspond to ground 1 of the present appeal.

38    The primary judge found that the Tribunal erred in its construction of s 34(2)(c) of the Citizenship Act, by drawing a distinction between whether it is “contrary to the public interest for a person to remain an Australian citizen” and whether it is “in the public interest for a person no longer to remain an Australian citizen”. His Honour noted that such a distinction had been rejected in TRHL v Minister for Immigration and Border Protection [2016] FCA 376; (2016) 69 AAR 192 at 198 [41] (Gilmour J).

39    The primary judge further found that the Tribunal’s erroneous construction of s 34(2)(c) of the Citizenship Act was material to the Tribunal’s consideration and to its decision. Before the primary judge, and in this Court, the appellant conceded that the distinction drawn by the Tribunal was wrong and that the correct interpretation is as explained by Gilmour J in TRHL. The appellant submitted, however, that any error the Tribunal made in the distinction was not material as the Tribunal discharged the task required of it in any event.

Grounds of Appeal

40    The grounds of appeal are as follows:

1.    The Court below erred in finding that the Tribunal's misconstruction of s 34(2)(c) of the Citizenship Act 2007 (the Act) was material such that it could realistically have made a difference to the outcome in the Tribunal.

2.    The Court below erred by finding that the Tribunal erred materially by overlooking a critical submission by the First Respondent about the Appellant's risk of re-offending in circumstances where the Minister in fact made no clear submission that the Appellant would reoffend, and where reoffending in respect of gaining citizenship and migration status was moot given that he is now a citizen.

3.    The Court below erred by finding that the Tribunal erred materially by not considering evidence and claims before it about the Appellant's dishonesty beyond that which formed the basis upon which he had been convicted in the criminal justice system.

4.    Further and alternatively, the Court below erred in finding that evidence before the Tribunal about the Appellant's dishonesty beyond that which formed the basis upon which he had been convicted in the criminal justice system:

a.    had to be considered by the Tribunal in order for it to correctly exercise its discretion under s34(2) of the Act; or

b.    was of such significance to the Tribunal's exercise of its discretion that the Tribunal's power under s34(2) of the Act miscarried if it was not considered; or

c.    could realistically have made a difference to the outcome of the case before the Tribunal.

Consideration

Ground 1 – Misconstruction of the public interest condition: s 34(2)(c)

41    Ground 1 concerns the public interest condition in s 34(2)(c) of the Citizenship Act, of which the Minister must be satisfied before the power to revoke a person’s citizenship may be exercised.

42    As noted above, ground 1 corresponds to grounds 4 and 5 of the Minister’s appeal below.

43    Significantly, the appellant conceded, both before the primary judge and in this Court, that the Tribunal had erred in law and that on the proper construction of the public interest condition there is no distinction between whether it is contrary to the public interest for a person to remain an Australian citizen and whether it is in the public interest for a person no longer to remain an Australian citizen. Ground 1 is limited to the appellant’s contention that the Tribunal’s error of law was not material.

44    The appellant’s concession that the Tribunal had erred in law in its approach to the public interest condition was correctly made. In TRHL at [41], Gilmour J held that the two concepts were synonymous:

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."

45    As the primary judge observed, the purported distinction is a linguistic distinction of no practical significance or importance which had been correctly rejected for that reason in TRHL.

46    The primary judge was correct to find that the false distinction drawn by the Tribunal was material to its reasoning for two reasons. First, the Tribunal expressly stated that the distinction was “significant and critical”, and “[i]t followed that the Tribunal’s reasoning, and the manner in which it considered the respective submissions, must have been imbued with this characterisation”. Secondly, the Tribunal excluded from its consideration matters it thought might only bear on what was “in” the public interest. As his Honour remarked, so much is evident from the Tribunal’s failure to take into account the Minister’s submissions about deterrence, its incorrect contextualisation of the Minister’s submissions about the integrity of the migration and citizenship regime, and its evaluation of the interests of the Australian community and the appellant’s prospect of re-offending.

47    For completeness, we go on to address the issue of materiality raised by the appellant, although legal error in the misconstruction of s 34(2) is sufficient. In the context of an appeal from the Tribunal on a question of law, that issue can only be relevant to the question of whether relief should be refused in the exercise of the Court’s discretion.

48    The appellant submitted that, notwithstanding the Tribunal’s error in seizing on what it considered to be a “significant and critical” difference, the Tribunal did, in substance and in fact, address the statutory test. The appellant did not, engage however, with the impact that the false distinction had on the Tribunal’s reasoning which was a key plank of the primary judge’s conclusion on materiality.

49    Before further addressing the appellant’s submissions, we note that both the appellant and the Minister contended that s 34(2) in its correct construction involved the exercise of a residual discretion if the conditions in ss 34(1)(a) to (c) were met. This is consistent with the approach taken by the Full Court in Egan, a decision handed down on the day the present appeal was heard.

50    Next, the appellant submitted that the Tribunal’s error of law was not material because the Tribunal lawfully exercised its discretion not to revoke the appellant’s Australian citizenship on the premise that s 34(2)(c) was met, and in any event that the Tribunal’s analysis of whether it was satisfied of the matter in s 34(2)(c) was expressed “in the alternative”. By this submission, the appellant appeared to contend that the residual discretion to revoke citizenship can be exercised in a way that is not tethered to the satisfaction of the anterior public interest condition.

51    The appellant’s submissions are rejected for the following reasons.

52    In construing s 34(2) as involving the exercise of a residual discretionary power, the Minister draws an analogy between the structure of s 34(2) of the Citizenship Act and ss 501(3), 501A(2), 501A(3) of the Migration Act (the Migration Act provisions). Each of the Migration Act provisions confers a power on the Minister to do a thing (visa refusal or cancellation) if, inter alia, the Minister is satisfied that the thing “is in the national interest”: Migration Act, ss 501(3)(d), 501A(2)(e), 501A(3)(d). The Migration Act provisions have been construed as conferring a discretionary power on the Minister the exercise of which is conditioned inter alia on the Minister forming an evaluative judgment that the thing (visa refusal or cancellation) “is in the national interest”. Similarly, s 34(2) confers a discretionary power on the Minister to do a thing (revoke citizenship) the exercise of which is conditioned, inter alia, on forming an evaluative judgment that not to do the thing would permit a situation to persist (continuance of the person’s Australian citizenship) that is contrary to the public interest.

53    In Gbojueh v Minister for Immigration and Citizenship [2012] FCA 288; (2012) 202 FCR 417 at 421 [14], Bromberg J observed in respect of s 501A(2) of the Migration Act that:

The drafting of s 501A(2) utilises a well recognised format, requiring the satisfaction of prerequisite conditions (set out in s 501A(2)(c), (d) and (e)) before the residual discretion is enlivened. One of the preconditions to the exercise of the discretion is the Minister’s satisfaction that the cancellation of a visa is in the national interest. The availability of the Minister’s discretionary power to set aside the original decision and to refuse to grant a visa or cancel a visa that has already been granted, is only enlivened when the Minister is satisfied of each of the preconditions to the exercise of the power. The question whether the discretion should be exercised does not arise until the Minister is satisfied that each of the preconditions are met, including that cancellation would be in the national interest. Decision-making in accordance with the structure of the section requires the Minister to consider the national interest precondition before considering the exercise of the residual discretion. A two step process is necessarily required of the Minister.

54    In BFM16 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 312 at [147], Farrell J identified the following propositions in respect of the decision-making process engaged by s 501A(2) of the Migration Act:

(1)    In determining whether or not he or she is satisfied that refusal or cancellation is in the national interest for the purposes of s 501A(2)(e), the Minister is not exercising a discretionary power, but is rather forming an evaluative judgment. That satisfaction is the starting point for the consideration of the exercise of discretion in s 501A(2)(e): [CWY20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 1855] at [79], relying on [Graham v Minister for Immigration and Border Protection [2017] HCA 33; (2017) 263 CLR 1] at [57]-[58].

(2)    It is important that each stage of the decision-making process (which includes the separate and distinct pre-conditions in s 501A(2)(c) to (e)) be conducted reasonably and on a proper legal basis, with a correct understanding of the meaning and application of relevant statutory concepts at each stage. The need for the Minister to adopt and apply a correct understanding of the national interest is all the more important because considerable weight will usually be given to the assessment of the national interest when that matter comes to be weighed against other considerations which are relevant in the later stage of the decision-making process, being the residual discretion: CWY20 at [137].

55    The legislative provision in issue in Graham was s 501(3) of the Migration Act. The legislative provision in issue in CWY20 was s 501A(3) of the Migration Act.

56    In Fastbet Investments Pty Ltd v Deputy Commissioner of Taxation (No 5) [2019] FCA 2073; (2019) 167 ALD 492 at 514 [71], Derrington J observed in the context of the exercise of the discretion in s 255-100(1) of Schedule 1 of the Taxation Administration Act 1953 (Cth) that “the satisfaction of the jurisdictional fact goes some considerable way to influencing the exercise of the discretion”; once the jurisdictional fact exists “there must necessarily be some inclination towards exercising the discretion”.

57    The similarities in the structure of s 34(2) of the Citizenship Act and s 501A(2) of the Migration Act are readily apparent. As stated at [52] above, s 34(2) is structured to confer a discretionary power on the Minister to revoke the citizenship of a person the exercise of which is conditioned on the three matters identified in ss 34(2)(a) to (c). First, the revocation must be directed to a person who obtained citizenship by conferral: s 34(2)(a). Second, the person must have been convicted of an offence of a type described in ss 34(b)(i) to (iv). Third, the Minister must be satisfied that it would be contrary to the public interest for the person to remain an Australian citizen: s 34(2)(c). The residual discretion in s 34(2) is only enlivened after all the conditions in ss 34(2)(a) to (c) are met.

58    It was common ground that the conditions in ss 34(2)(a) and (b) were met. The Tribunal erred in law in construing what was necessary to make the evaluative judgment required by the public interest condition. The residual discretion conferred by s 34(2) cannot lawfully be exercised separately to the formation of the requisite state of mind about the public interest. In other words, the Tribunal had to form a state of satisfaction about the public interest before exercising the discretion: CWY20 at [79].

59    In the present context, once the administrative decision-maker (the Minister or the Tribunal as the case may be) is satisfied that it would be contrary to the public interest for the person to remain an Australian citizen, there is likely to be some inclination to revoke the person’s citizenship. For this reason, it was not open to the Tribunal to exercise the residual discretion under s 34(2) on the abstract assumption that the public interest condition was met without actually forming the state of mind to which that condition is directed.

60    If the appellant’s contention in respect of the materiality of the legal error is understood as going to the discretion to grant or refuse relief, then it is our view that the error was material and relief should be granted. Had the Tribunal’s assessment in respect of the public interest condition not been distorted by its misconstruction of s 34(2), a different decision could have been made. No error has been shown in the approach taken by the primary judge. Ground 1 of the appeal is dismissed.

61    This is not an appeal where the appellant may rely on alternative path of reasoning to support the Tribunal’s purported exercise of the residual discretion. The dismissal of ground 1 requires the matter to be remitted to the Tribunal to be determined in accordance with the law.

Grounds 2 to 4 – Legally erroneous fact finding

62    Having regard to our conclusion in relation to ground 1 it is strictly unnecessary to deal with the remaining grounds of appeal. In deference to the arguments, however, we will do so.

63    Grounds 2 to 4 involve contentions that the primary judge erred in finding that the Tribunal erred in law in overlooking the Minister’s submission as to the risk of re-offending (ground 2) and in not addressing evidence regarding the appellant’s dishonesty over and above that which resulted in his citizenship and migration convictions (grounds 3 and 4).

64    Grounds 2 to 4 concern evidence and submissions upon which the Minister relied as relevant to the evaluative judgment required by the public interest condition and to the exercise of any residual discretion in s 34(2). In circumstances where the appellant conceded that the Tribunal erred in law in its approach to the public interest condition and it is clear that this error, which is the subject of ground 1, precluded the Tribunal from exercising any residual discretion in accordance with the requisite decision-making process required by that provision, the remaining grounds of appeal may be disposed of in relatively brief terms.

65    The issues raised by these grounds are closely related.

66    It will be recalled that the primary judge found that the failure by the Tribunal to refer to concessions by the appellant in cross-examination that he had made false statements in his protection visa application, his statement to the Tribunal and his application to VicRoads, evinced a failure of the Tribunal to consider substantial and significant matters that had been seriously advanced by the Minister. Contrary to the appellant’s submission, the Tribunal’s reasons do not demonstrate an active engagement with the Minister’s case. Whereas, the Tribunal refers to the appellant’s “first falsehood” in June 2004, which became the “one big lie” that he was stuck with (as to his identity), the evidence showed both earlier and broader instances of dishonesty. The instances of dishonesty that were pressed as part of the Minister’s broader case were not confined to the appellant’s identity but extended, for example, to supplying false information and documents in support of his 1999 protection visa application. The primary judge was correct to hold that the Tribunal’s failure to consider the Minister’s broader dishonesty case was an error of law: Willcox at 276 - 277.

67    For the reasons given at [31] – [33] of his Honour’s reasons below, the primary judge was also correct to conclude that the Tribunal had erred in law in applying an unduly narrow approach to s 34(2) by limiting its consideration to conduct or matters which had resulted in convictions within the ambit of ss 34(2)(b)(i) to (iv) and failing to take into consideration the broader framing of the issue of the appellant’s dishonesty.

68    The appellant submitted that the Tribunal did consider the relevant evidence and claims about the appellant’s dishonesty and took it into account in deciding how to exercise its discretionary power. One difficulty with this submission is that on the approach taken by the Tribunal the residual discretionary power was not enlivened because the Tribunal had not reached the requisite state of satisfaction in respect of s 34(2)(c) based on a correct understanding of the effect of that provision. Another is that the Tribunal’s statement at [64] of its reasons (extracted at [25] above) (that there was “no reason to expect” that the appellant would re-offend and it was “not argued that there would be any such risk”) indicates that the Tribunal did not consider the Minister’s argument or the evidence upon which he relied.

69    The primary judge observed that the Tribunal’s statements reflected a misunderstanding of, or misconception about, the Minister’s submissions. Either that or the Tribunal overlooked them, for, contrary to what the Tribunal said at [64], the Minister presented a substantial and clearly articulated argument that there was an ongoing risk of the appellant engaging in further dishonest conduct and there was cogent evidence to support his argument.

70    The Minister’s oral submissions before the Tribunal were framed in terms of the appellant’s character as reflected in the pattern of dishonesty. Framing the submission through the lens of character emphasised the likelihood that the dishonesty would continue into the future. By way of overall characterisation, the Minister submitted that the evidence told a “broader story” of the appellant’s propensity to say what was convenient at the time rather than what was true, that the integrity of government systems depends on the honesty of people when dealing with government agencies and the appellant’s falsified visa application went against that principle, and that there was a “risk of him doing these types of things” again if it became convenient to him to do so. The Minister submitted that “the Tribunal should not be persuaded that the applicant has reformed”.

71    The Tribunal did not deal with the Minister’s case on this issue, not because it did not think it material, but because it misunderstood the Minister’s argument, overlooked it and the evidence that supported it, and/or misconstrued the statutory power it was called upon to exercise: cf. Minister for Immigration and Border Protection v SZSRS [2014] FCAFC 16; (2014) 309 ALR 67 at 75 [34] – [35] (Katzmann, Griffiths and Wigney JJ). The primary judge correctly found that the Tribunal had erred in law in that it misunderstood (and therefore failed to consider) this aspect of the Minister’s case for the reasons expressed by the primary judge relying on NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) [2004] FCAFC 263; (2004) 144 FCR 1 at 20 [63] (Black CJ, French and Selway JJ)).

72    If the Tribunal had grappled with the evidence of the full spectrum of the appellant’s dishonesty and the Minister’s submissions as to the significance of that evidence, its approach to both the public interest condition and the purported exercise of the residual discretion under s 34(2) could well have been different.

73    No error has been shown in respect of the decision of the primary judge. Grounds 2, 3 and 4 must be dismissed.

Conclusion

74    The appeal must be dismissed with costs.

Associate:

Dated:    26 August 2021