FEDERAL COURT OF AUSTRALIA

TRHL v Minister for Immigration and Border Protection [2016] FCA 376

ORDERS

THE COURT ORDERS THAT:

1.    The appeal be dismissed.

2.    The appellant pay the costs of the first respondent.

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

REASONS FOR JUDGMENT

GILMOUR J:

1    This is an appeal on questions of law under s 44(1) of the Administrative Appeals Tribunal Act 1975 (Cth) in respect of a decision of the Tribunal delivered on 15 October 2015 which affirmed the Minister's decision to revoke the appellant's citizenship.

2    The Australian Citizenship Act 2007 (Cth) (the Citizenship Act) provides that the Minister may revoke a person's citizenship in certain circumstances set out in s 34(2), including where the person has been convicted of certain offences and the Minister is satisfied that it would be contrary to the public interest for the person to remain a citizen.

3    It was common ground in the Tribunal that the appellant had been convicted of an offence within the meaning of s 34(2). The issues in the Tribunal were whether it would be contrary to the public interest for the appellant to remain a citizen and, assuming that issue was answered in the affirmative, whether the Tribunal should exercise its discretion to revoke the appellant's citizenship.

The Facts

4    The following facts are not contentious.

5    The appellant is a citizen of the United Kingdom who migrated to Australia as a permanent resident with his wife, who is also a citizen of the United Kingdom.

6    On 12 March 1996 the appellant applied successfully for Australian citizenship, which was granted on 30 April 1996. His wife also became an Australian citizen in 1996. Both retained their United Kingdom citizenship after becoming Australian citizens.

7    In 2011 the appellant was extradited to the United Kingdom to face charges relating to child sex offences alleged to have been committed by him there between 1959 and 1973.

8    The appellant was convicted on 13 counts, including 2 counts of rape, 2 counts of attempted rape, 8 accounts of indecent assault and 1 count of indecency with a child. The appellant received a sentence of 11 years imprisonment in respect of those convictions.

9    The appellant appealed against both his convictions and sentence, but on 10 September 2013 his appeal was dismissed by the England and Wales Court of Appeal.

10    On 3 October 2013 the appellant, through his solicitors, lodged an application to be transferred from his prison in the United Kingdom to an Australian prison, and on 31 October 2013 the International Crime Cooperation Division of the Commonwealth Attorney General's Department notified the Department of Immigration and Border Protection ("the Department") of the transfer application, and sought advice as to whether the appellant was an Australian citizen or permitted to travel to, enter and remain in Australia indefinitely.

11    On 27 June 2014 the Department wrote to the appellant notifying him of the possible revocation of his Australian citizenship, and providing him an opportunity to provide reasons as to why his Australian citizenship should not be revoked. The appellant responded on 4 July 2014.

12    On 22 December 2014 the Minister revoked the appellant's Australian citizenship pursuant to s 34 of the Citizenship Act.

Statutory framework

13    The appellant was granted Australian citizenship in 1996 pursuant to s 13(1) in Division 2 of Part III of the Australian Citizenship Act 1948 (Cth), ("the 1948 Citizenship Act"), which gave the Minister a discretionary power to grant a certificate of Australian citizenship to a person who satisfied the Minister of the matters set out in paragraphs (a) to (j), including relevantly that: "the person is of good character".

14    Pursuant to s 4(1)(b) of the Citizenship Act, and prior to his Australian citizenship being revoked, the appellant was an Australian citizen for the purposes of that Act by reason of him being an Australian citizen under the 1948 Citizenship Act.

15    Section 34 of the Citizenship Act relevantly provides that:

"34(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)    For the purposes of this section, a person has been convicted of a serious offence if:

(a)    the person has been convicted of an offence against an Australian law or a foreign law, for which the person has been sentenced to death or to a serious prison sentence; and

(b)    the person committed the offence at any time before the person became an Australian citizen."

16    The expression "serious prison sentence" in paragraph 34(5)(a) of the Citizenship Act is defined in s 5 of that Act as “a sentence of imprisonment for a period of at least 12 months".

17    Pursuant to Items 2(1) and (2) of Schedule 3 to the Australian Citizenship (Transitionals and Consequentials) Act 2007 (Cth), as from the commencement day of the Citizenship Act the appellant was taken to be a citizen under Subdivision B of Division 2 of Part 2 of the Citizenship Act.

The Tribunal's reasons

18    Having regard to the provisions of s 34(2) of the Citizenship Act, the Tribunal was firstly required to reach a state of satisfaction that it would be contrary to the public interest for the appellant to remain an Australian citizen. If the Tribunal was so satisfied, it was then required to consider whether to exercise the discretion to revoke the appellant's Australian citizenship.

19    The Tribunal noted at [24] and [25] of its Reason's for Decision ("the Tribunal's reasons") that it was common ground that the appellant had been convicted of "serious offences", and that consequently, "the discretion to revoke the appellant's citizenship is enlivened if "the Minister is satisfied that it would be contrary to the public interest for the [appellant] to remain an Australian citizen"."

20    The Tribunal further noted at [26] of its reasons that the appellant's position was that "the discretion in s 34(2) of the Citizenship Act is not enlivened, and, even if it were enlivened, the appellant and his wife's circumstances weigh strongly against the discretion being exercised", and that the Minister took the opposite view.

21    Under the heading "Meaning of "public interest"", and commencing at [27], the Tribunal discussed the meaning of the term "public interest", referred to a number of authorities, including Osorio v Minister for Immigration and Citizenship [2007] AATA 59 and WBU v Minister for Immigration and Citizenship [2007] 45 AAR 225 in relation to the meaning of "public interest", and referred to the parties' submissions as to the meaning of "public interest" and the matters which the parties contended the Tribunal should take into account in deciding whether it was satisfied that it was in the public interest that the appellant's Australian citizenship be revoked, and in exercising the discretion as to whether his Australian citizenship should be revoked.

22    The Tribunal noted at [51] of its reasons what was put on behalf of the appellant as factors to be weighed in the face of any conclusion the Tribunal might reach that it would be contrary to the public interest for the appellant to remain an Australian citizen. As I will later explain these were factors going to the exercise of discretion by the Tribunal.

23    The Tribunal affirmed the revocation decision

Grounds of Appeal

24    There are two grounds of appeal:

(1)    The second respondent was required to be satisfied that it would be contrary to the public interest for the Appellant to remain an Australian citizen before the discretion to revoke his citizenship was enlivened. Instead, the Second Respondent found that the discretion was enlivened based on its satisfaction that it was in the public interest that the Appellant not continue to be an Australian citizen. As the Tribunal did not reach the requisite state of satisfaction set out in subsection 34(2)(c) of the Australian Citizenship Act 2007 (Cth), the discretion to revoke the Appellant's citizenship was not enlivened.

(2)    If the second respondent reached the state of satisfaction required by subsection 34(2)(c) of the Australian Citizenship Act 2007 (Cth), it was required to consider separately whether the discretion to revoke the Appellant's citizenship should be exercised. The second respondent affirmed the decision under review without separately considering whether to exercise the discretion against the Appellant."

25    These grounds are said to give rise to the following questions of law:

(1)    whether the Tribunal reached the state of satisfaction required such as to enliven the discretion in section 34(2) of the Citizenship Act; and

(2)    whether the Tribunal failed to consider exercising the discretion conferred by subsection 34(2) of the Citizenship Act, failed to exercise the discretion, or failed to consider the Appellant's contentions against the exercise of the discretion?

Ground 1

Did the Tribunal reach the state of satisfaction required such as to enliven the discretion in section 34(2) of the Citizenship Act?

26    Section 34(2)(c) required the Tribunal to consider whether it was satisfied that it “would be contrary to the public interest for the Appellant to remain an Australian citizen”.

27    The appellant complains that the Tribunal in finding at [60] that ''[this] is a matter where there are clear reasons why it is in the public interest that the Appellant not continue to be an Australian citizen'' was an articulation of the wrong statutory question. Rather the appellant submits that the Tribunal’s finding ought to have reflected the language in s 34(2)(c).

28    He submits that the two formulations are not synonymous, and that accordingly the Tribunal failed to understand the state of satisfaction that it was required to reach.

29    As the appellant correctly noted the use of the expression ''public interest'' in a statutory provision imports a discretionary value judgment to be made by reference to undefined factual matters confined only by the subject matter, scope and purpose of the statutory provisions: Pilbara Infrastructure Pty Ltd v Australian Competition Tribunal (2012) 246 CLR 379 per French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ at [42]. The whole of the text must be considered when construing it: Alcan (NT) v Commissioner of Territory Revenue (Northern Territory) (2009) 239 CLR 27 per Hayne, Heydon, Crennan and Kiefel JJ at [47].

30    He submits that it is the words surrounding the expression ''public interest'' in s 34(2)(c) and the Tribunal's expression that produce a different meaning in each case.

31    His submission is that s 34(2)(c) requires a negative state of satisfaction to be reached whereas the state of satisfaction expressed by the Tribunal is positive and that, necessarily, consideration of whether something is “contrary to the public interest” will be different to whether something is “in the public interest”. In respect of the latter expression he drew from what Tamberlin J said that ''[the] expression ''in the public interest'' directs attention to that conclusion or determination which best serves the advancement of the interest or welfare of the public, society or the nation and its content will depend on each particular set of circumstances'': McKinnon v Secretary, Department of Treasury (2005) 145 FCR 70 at [9]. Conversely, he submits that the expression ''contrary to the public interest'' directs attention to detriment, that is, whether the thing being considered (in this case whether the Appellant remain a citizen) is detrimental or opposed to the public interest.

32    He then submits that s 34(2)(c) takes as its starting point that the person under consideration is an Australian citizen with all of the rights, privileges and obligations attached to that special status and it asks the decision maker to consider whether it would be contrary to the public interest for that person to remain a citizen. This he submits is a high bar as the purpose of the paragraph is to provide a check on the exercise of an extraordinary power. Thus, he submits that, by contrast, it is implicit in the Tribunal's expression that the citizenship of a person who falls within one of the criteria in s 34(2)(b) is more precarious than another person's citizenship. This he contends is because the state of satisfaction described can be reached if the decision maker is satisfied there are reasons why it is in the public interest that the person not continue to be an Australian citizen.

33    He submits accordingly that the state of satisfaction expressed in the Tribunal's expression is lower than that required by s 34(2)(c) and that, given the nature of the power involved, this subsection should be construed so that it requires the decision maker to reach the higher state of satisfaction.

34    He contends that the Tribunal did not understand the level of satisfaction it was required to reach under s 34(2)(c). He points in particular to the Tribunal’s reasons at [60].

35    He submits that the words chosen by the Tribunal to express its ultimate finding are the best guide to determining in this appeal whether the Tribunal understood the state of satisfaction it was required to reach, and particularly so in this case where a person's status as a citizen is at stake.

36    He contends, against this background, that the correct inference is that the Tribunal's use of the expression ''…why it is in the public interest that the appellant not continue to be an Australian citizen'' is not simply loose language. Rather it is an expression of the Tribunal's incorrect understanding of the required state of satisfaction.

37    The passage at [60] of the Tribunal’s reasons relied upon by the appellant is in fact a recitation of a closing submission made on behalf of the Minister.

38    Despite this, it is clear that the Tribunal was well aware of the question posed by s 34(2)(c) of the Citizenship Act, and that it answered that question, namely whether it was satisfied that "it would be contrary to the public interest" for the appellant to remain an Australian citizen.

39    It is well established that the reasons of such a Tribunal should not be "construed minutely and finely with an eye keenly attuned to the perception of error": Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272 per Brennan CJ, Toohey, McHugh and Gummow JJ quoting with approval the Full Court of the Federal Court in Collector of Customs v Pozzolanic (1993) 43 FCR 280 at 287. The reasons of a tribunal are also to be read fairly, and are not to be read as if each paragraph is self-contained and necessarily sequential: Minister for Immigration and Border Protection v Tran [2015] FCA 546 at [24].

40    I accept the submission by the Minister that the Tribunal was aware of the state of satisfaction that it had to reach in relation to the "public interest" before the discretion in s 34(2) of the Citizenship Act to revoke the appellant's Australian citizenship was enlivened, namely that it would be contrary to the public interest for the appellant to remain an Australian citizen. This is apparent from its earlier references to the "public interest" in its reasons at [25], [38], [46] and [50]. The Tribunal’s reasons at [50] made it very clear that it was cognisant of the relevant statutory question when it stated “adds considerable weight to a finding that it would be contrary to the “public interest” if the appellant were to remain an Australian citizen”.

41    In any event, in my opinion, in this statutory context, the expression of the public interest requirement under s 34(2)(c) as ultimately put on behalf of the Minister before the Tribunal as being "in the public interest that the appellant not continue to be an Australian citizen" is synonymous with the statutory language that "it would be contrary to the public interest for the appellant to remain an Australian citizen."

42    Ground 1 fails.

Ground 2

Did the Tribunal consider separately whether to exercise its discretion to revoke the Appellant’s citizenship?

43    The appellant submits that properly construed, s 34(2) of the Citizenship Act required the Tribunal to determine whether it would be contrary to the public interest for the appellant to remain a citizen and, if it answered that question in the affirmative, to consider separately whether to exercise its discretion to revoke his citizenship: MIBP v Tran at [23].

44    He submits that, the Tribunal did not do this but, rather, it treated the public interest question and the exercise of discretion as one and the same thing and approached the review on the basis that if it determined it was in the public interest for the appellant not to continue to be a citizen then it would affirm the decision to revoke his citizenship. This he submits is best illustrated at [60] of the Tribunal's reasons. The full passage at [60] states:

This is a matter where there are clear reasons why it is in the public interest that the appellant not continue to be an Australia citizen. It is a status he should never have obtained. It is a status he would not receive now if he applied. He is patently not of good character, having committed offences the Australian community would regard as particularly abhorrent. To allow him to remain a citizen undermines the proper application of the [Citizenship] Act and Australia’s right to determine who is accepted into its citizenry. Balanced against that are the facts that as a result of public interest and discretionary factors, his age, the risk he present is diminished and the genuine hardship which would be caused to his wife. Ultimately the Tribunal is being asked to elevate the interests of an individual above those of the community. In line with the authorities that have followed Smith and so forth, that is clearly distinct from the public interest.

45    He points to the absence of separate findings by the Tribunal in its reasons: Osorio at [41]-[45] and WBU at [44]-[47].

46    He submits that, when read in context, the references in the reasons to matters relevant to the exercise of discretion form part of the Tribunal's consideration of the public interest question rather than the exercise of discretion (at [49] and [60] of the Tribunal’s reasons) and further that it cites reasons given by counsel for the appellant at the review hearing for not exercising the discretion to revoke his citizenship as part of its discussion of the public interest (at [51] of the Tribunal’s reasons).

47    He further submits that what the Tribunal cites as being matters of public interest at [36] and [37] were matters that the Tribunal considered in earlier citizenship revocation cases in the exercise of its discretion (as opposed to the matters they considered on the public interest question): Osorio at [41], [42] and 45; and WBU at [45].

48    Thus, he contends that by treating its finding on the public interest question as determinative of the review it failed to consider exercising its discretion, failed to exercise the discretion or failed to consider the appellant's contentions against the exercise of the discretion.

49    I do not accept these submissions.

50    It is the case, as the first respondent acknowledges, that the Tribunal's reasons do not separately and specifically record either the Tribunal's conclusion as to its satisfaction that it would be contrary to the public interest for the appellant to remain an Australian citizen, or its conclusion that in the exercise of the Tribunal's discretion, the appellant's Australian citizenship should be revoked, unlike the Tribunal's reasons in Osorio and WBU.

51    As I observed earlier, it is necessary to consider the Tribunal's reasons as a whole; to read them fairly and not as if each paragraph was self-contained and necessarily sequential: Tran at [24].

52    Justice Jagot, in Tran observed that it was obvious from the many references to the exercise of the discretion that the Tribunal understood that it had a discretion to exercise if it was satisfied of the matters in s 22(9)(a) to (d) of the Citizenship Act. Her Honour further noted at [25] that the Minister's case seemed to be that certain paragraphs were to be read as "strictly self-contained sequential pods of reasoning", with the consequence that some paragraphs were to be read as dealing solely with the s 22(9)(d) issue of close and continuing connection, and another paragraph was to be read as dealing solely with the exercise of the discretion, and that it must be inferred that the Tribunal exercised its discretion merely because s 22(9)(a) to (d) were satisfied. This, her Honour remarked was "not a legitimate approach to the reasons of the Tribunal."

53    It is apparent, against the backdrop of her Honour’s remarks, that the Tribunal's reasons here disclose that it was aware that it had firstly to be satisfied that it would be contrary to the public interest for the appellant to remain an Australian citizen before the discretion in s 34(2) of the Migration Act was enlivened, and if it was so satisfied, to decide whether, balancing the factors relied upon by each the Minister and the appellant, it should exercise the discretion to revoke the appellant's Australian citizenship. This approach may be seen at [22] to [61] of the Tribunal’s reasons. For example, the clear division between the relevant state of satisfaction and the exercise of discretion is apparent at [25] of the Tribunal’s reasons where it stated, “Consequently, the discretion to revoke the appellant’s citizenship is enlivened if the Minister is satisfied that it would be contrary to the public interest for the [Appellant] to remain an Australian citizen”.

54    Awareness on the part of the Tribunal of the two step process may also be seen at [26] and [56]. I earlier referred to [50] of the Tribunal’s reasons where it clearly set out the “contrary to the public interest” criteria. Then, by contrast; at [51] – [52] it stated:

[51] Counsel for the appellant asserts that all of this must be weighed against such factors as:

•    the Appellant’s age (currently is 81 years old);

•    the Appellant’s health problems (see paragraph 9 above);

•    the Appellant’s ties to Australia;

•    the hardship that the Appellant and his wife will face if he had to remain separated from his wife for the duration of his sentence )i.e. with the Appellant remaining in prison in the United Kingdom and his wife remaining in Western Australia);

•    the financial and emotional hardship the Appellant’s wife would face if she had to relocate to and establish a new life the United Kingdom, after so many years in Australia, so that she can be close to and regularly visit the Appellant in prison;

•    the fact that the sentencing Judge noted counsel for the Appellant’s submissions at the Appellant’s criminal trial that because the Appellant had not offended in Australia he had rehabilitated himself and that the public no longer needed protection from him (see paragraph 13 above);

•    the Court of Appeal’s finding that the Appellant was “a man of good character” apart from the matters alleged against him and that there was “no suggestion of any improper activity of any sort carried out by him after 1973 (see paragraph 14 above).

[52] Most of the above listed factors are not matters which go to the “public interest”. They are not the interests of the public or advantages to the community but, instead, represent the interests of or disadvantages to an individual (namely the Appellant and his wife): Dpp v Smith (refer to paragraph 31 above).

55    Accordingly it may be inferred from the Tribunal’s reasons as a whole, including its ultimate decision to affirm the delegate's revocation decision, that the Tribunal concluded that it was satisfied that it would be contrary to the public interest for the appellant to remain an Australian citizen, and that the discretion should be exercised to revoke his Australian citizenship, having regard to all of the factors put forward by both the Minister and the appellant.

56    Ground 2 also fails.

57    The appeal will be dismissed. The appellant should pay the Minister’s costs.

Associate:

Dated:    19 April 2016