FEDERAL COURT OF AUSTRALIA

Kassem v Minister for Home Affairs [2019] FCA 1196

ORDERS

THE COURT ORDERS THAT:

1.    The second respondent’s decision of 26 November 2018 is set aside.

2.    The matter is remitted to the second respondent to be heard and decided again according to law.

3.    The first respondent is to pay the applicant’s costs.

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

REASONS FOR JUDGMENT

STEWART J:

Introduction

1    This case concerns the cancellation of an approval for Australian citizenship. It was granted to the applicant in the form of a certificate of citizenship in 2000. It was cancelled by a delegate of the Minister for Home Affairs in May 2018.

2    The applicant sought a merits review of the delegate’s decision in the Administrative Appeals Tribunal, but the decision was affirmed by the Tribunal.

3    Before me, the applicant seeks to appeal from and set aside the decision of the Tribunal under s 44 of the Administrative Appeals Tribunal Act 1975 (Cth). He does so on three grounds, namely:

    Ground 1: That the Tribunal erred at law in failing to take into account a mandatory relevant consideration, being the applicant’s expressly articulated claims of harm (being harm that falls within the statutory protection visa framework in s 36 of the Migration Act 1958 (Cth), as well as harm that falls outside the statutory protection visa framework), and thereby committed jurisdictional error;

    Ground 2: That the Tribunal constructively failed to exercise its jurisdiction and/or operated under a misunderstanding of the Migration Act in deferring to another decision-maker consideration of factors relevant to the exercise of its decision; and

    Ground 3: The Tribunal erred at law in construing s 25 of the Australian Citizenship Act 2007 (Cth) as mandating a cancellation of the applicant’s approval for citizenship if the criteria in subsection 25(2) were met.

4    The applicant is in immigration detention pending the resolution of this case.

Background

5    For a very long time, and no less at present, Australian citizenship has constituted a highly prized bundle of reciprocal rights and duties. Also, Australia has been a highly sought-after country of refuge for people fleeing desperate circumstances elsewhere in the world.

6    Amongst those who have sought better lives for themselves and their children in Australia were large numbers of Lebanese families in the late 1970s. The applicant’s was such a family. His parents came to Australia with him and several siblings in 1977.

7    The evidence before the Tribunal was that the applicant’s parents made the decision to leave Lebanon because it was at that time war-torn and experiencing considerable political strife. It was not a safe place for their children to grow up. The country was under constant attack by foreign jet fighter raids.

8    The applicant testified that, growing up in Lebanon, he recalls the raids that shook their home and made him feel terrified. His family lived in a small village near the border with Israel. At the age of 6, he was shot in the hip during one of the raids. He was unable to walk and was in a lot of pain for a long time.

9    The applicant entered Australia on a passport of one of his parents under the authority of a visa issued at the Australian High Commission in Nicosia on 25 April 1977. He arrived in Australia on 25 May of that year. He was nine years old.

10    At that time, the applicant spoke only Arabic, the national language of Lebanon. Over time in Australia he learnt English and lost his Arabic through disuse. He now speaks Arabic in only a broken fashion.

11    In the 42 years since his arrival, the applicant has lived only in Australia. He has never returned to Lebanon and has very little if any ties to that country. He is in almost every respect Australian – what he lacks, as will be seen, is having made the required pledge of commitment to become an Australian citizen.

12    The applicant explained to the Tribunal that the unexpected death of his father in 1986 shook him to the core. He was a teenager at that time and relied greatly on his father for mental and emotional support. To compound his difficulties, 18 months later his elder brother was crushed by a motor vehicle. The incident left him with serious brain injury. The result was that at the age of 21 the applicant carried the shared responsibility of caring for his disabled brother.

13    In 2000, the applicant got married and he and his wife had a daughter in 2006. The relationship subsequently broke down, and his wife took the child away. The applicant said that he believes that his life “went downhill” when his marriage failed.

14    The applicant testified that after his father died, he began using drugs. Initially that was at a “recreational level”, but following the failure of his marriage he began to use cocaine daily and he started to use crystal methamphetamine (or “ice”).

15    The record does not reveal by what status the applicant was in Australia between July 1977 and September 1994, although there is nothing to suggest that he was in this country other than lawfully. From 1 September 1994 he held a Class BF transitional (permanent) visa.

16    On 15 June 2000, after having lived in Australia for 23 years, the applicant lodged an application for the grant of Australian citizenship under s 13 of the Australian Citizenship Act 1948 (Cth) (the 1948 Act). His application was approved on 20 June 2000. He was at that time 32 years of age.

17    Although he had been granted a certificate of Australian citizenship, under s 15 of the 1948 Act a person did not become an Australian citizen until they made the required pledge of commitment. On being granted a certificate of Australian citizenship, the applicant was invited to attend a citizenship ceremony and make such a pledge, however he failed to do so. Departmental records show that the invitation was returned as unclaimed because the applicant no longer lived at the address to which it was sent.

18    On 8 May 2001, a decision was made to revoke the grant of a certificate of Australian citizenship on the basis that the applicant’s whereabouts were unknown and that he had not attended a citizenship ceremony or made a pledge of commitment. In circumstances that are not clear, the Department subsequently reconsidered the decision of 8 May 2001 to revoke the grant of a citizenship certificate to the applicant and found that it was invalid. That meant that the approval of the applicant’s citizenship application remained effective as at 15 March 2007 when the new Citizenship Act was assented to and 1 July 2007 when it commenced.

19    Under item 8 of Schedule 3 of the Australian Citizenship (Transitionals and Consequentials) Act 2007 (Cth), the applicant’s certificate of citizenship granted under the 1948 Act was taken to be an approval under s 24 of the Citizenship Act for the applicant to become an Australian citizen. Accordingly, as at 1 July 2007, on the commencement of the Citizenship Act, the applicant was taken to have made an application for citizenship that had been approved under s 24. During this period, the applicant remained the holder of a permanent resident visa.

20    In the meanwhile, the applicant accumulated a significant criminal history. His national police certificate shows convictions going back to October 2000 (when he was 33), for “knowingly obtained benefit not payable in part”, to February 2016, for “drive motor vehicle during disqualification period”. In between, there are numerous convictions related to driving a motor vehicle at speed or when disqualified, and drug and violence related offences.

21    On 19 April 2017, a decision was made by a delegate of the Minister to cancel the applicant’s permanent resident visa under s 501(3A) of the Migration Act. That provision provides that the Minister “must” cancel a visa that has been granted to a person if, relevantly, the Minister is satisfied that the person does not pass the character test on the basis of having a “substantial criminal record” within the meaning of paragraph (6)(a) read with paragraph (7)(c) of s 501. Under the latter paragraph, a person has a substantial criminal record if the person has been sentenced to a term of imprisonment of 12 months or more.

22    In that regard, on 16 December 2016, the applicant was convicted of the offence described as “Take/Detain person in company with intent to obtain advantage” and sentenced to a term of imprisonment of 3 years and 4 months with a non-parole period of 1 year and 10 months. That is the offence under s 86(1)(b) of the Crimes Act 1900 (NSW), the commission of which gives rise to a liability to imprisonment for 14 years. At the time of the decision to cancel the applicant’s visa, he was serving a sentence of imprisonment on a full-time basis in a custodial institution as referred to in s 501(3A)(b).

23    The record shows that the applicant did not seek revocation of the decision to cancel his visa as was available to him under s 501CA of the Migration Act.

24    Thereafter, or 2 May 2018, a decision was made by a delegate of the Minister to cancel the approval of the applicant’s application for Australian citizenship because he was not a permanent resident as defined under s 5 of the Citizenship Act. That decision was taken under s 25 of the Citizenship Act.

25    On 21 May 2018, the applicant lodged an application with the Tribunal for a review of the delegate’s decision.

The proceedings before the Tribunal

26    The applicant’s evidence before the Tribunal included that he is extremely scared of going back to Lebanon. The thought of going back to Lebanon triggers post-traumatic stress disorder from which he suffers, but more than anything he is worried for his mother and his disabled brother whom he would be forced to leave behind. He does not want to be taken away without seeing them. He said that his mother is 94 years old and is currently on her deathbed.

27    The applicant’s older sister gave evidence that if the applicant was to ever leave Australia permanently, she does not know how he would survive – he can now barely speak Arabic and he would not have the skills to continue a happy and healthy life. She said that he suffers from different psychiatric illnesses and the lack of access to medication would hinder his mental state. She does not see how he could support himself at all, which makes her extremely worried for him.

28    The applicant’s niece, with whom he is close, gave evidence that the applicant has absolutely no connection to Lebanon. His niece is unable to grasp how he could ever survive there. As she put it, “the country is simply foreign to him”.

29    Before the Tribunal, the Minister submitted that the delegate’s decision should be affirmed either on the basis upon which it was made, namely that the applicant no longer had a permanent resident visa and for that reason no longer qualified for citizenship or, on a further basis, that the applicant was not of “good character”. Both of those grounds, as will be seen, enlivened the delegate’s power under s 25 of the Citizenship Act to cancel a citizenship approval given to a person (or, in this case, taken to have been given to a person) under s 24.

30    Before the Tribunal, the applicant submitted that a finding that his permanent resident visa had been cancelled (which was not disputed), or that he was not of “good character”, enlivened the discretion of the delegate to cancel the citizenship approval. He submitted that those findings are not of themselves sufficient to lead ipso facto to cancellation, there being a necessary second step involving consideration of whether the approval should be cancelled.

31    The applicant submitted that that discretion must be exercised reasonably, which in turn required the delegate, and hence the Tribunal, to take into account the risk of the applicant’s deportation and the resultant significant hardship that both he and his family members would face. I shall refer to the applicant’s representations with regard to the harm that he would face in the event that the cancellation of his citizenship approval was affirmed as his “harm representations”.

32    The following factors were identified as being pertinent to that harm: (1) his poor physical and mental health; (2) his lack of support in Lebanon; (3) his general unfamiliarity with Lebanon, including his limited ability to speak Arabic; (4) his lack of skills which may affect his ability to obtain employment and support himself; and (5) the general situation in Lebanon, including the dangerous security environment, lack of adequate medical services, lack of social security, and poor employment opportunities.

33    It was submitted by the applicant that none of elements of harm within his harm representations would appear to fall within the concept of “harm” as it is understood in the statutory protection visa framework and the harm representations were therefore not matters, or not wholly matters, that the applicant could raise by way of a protection visa application.

34    The Minister accepted before the Tribunal that once the cancellation power has been engaged, there is a residual discretion available as to whether the approval should be cancelled.

35    After setting out the relevant statutory provisions, the Tribunal reasoned as follows on the first ground (i.e. no permanent residence visa):

63.    The Tribunal can find no grounds for supporting the Applicant’s proposition that there was no need for Mr Kassem to “continue” to hold a permanent resident visa once the initial application has been granted.

64.    As explained, the approval was live and open but had not been given effect by the taking of the Pledge. It was thus open to the Minister to cancel it and the cancellation had to be based on the Minister’s determination of Mr Kassem’s status “at the time” that the Minister’s decision was made.

65.     It is simply a matter of fact that at the time that the Minister made his decision, Mr Kassem was not the holder of a permanent residence visa, that having been automatically cancelled under the provisions of section 501(3A) of the Migration Act.

66.     On that basis alone the decision under review should be affirmed.

36    The Tribunal then stated that in the event that it had misunderstood the law in relation to the applicant’s status with regard to not holding permanent residence, it would accept the invitation of the Minister (which was not resisted by the applicant) to look beyond the question of cancellation of the prior approval on the sole ground of non-permanent residency and consider whether the applicant’s citizenship approval should be cancelled on the alternative basis that he was not a person of “good character”.

37    The Tribunal then set out the relevant provisions and legal tests with regard to good character. It also identified the applicant’s significant criminal record and summarised aspects of his evidence. Thereafter, it set out its conclusions on this ground as follows:

90.    It is quite obvious that Mr Kassem’s record of criminal behaviour is extensive and has taken place over a long period of time. There is nothing by way of evidence before the Tribunal to suggest that Mr Kassem has taken serious steps at personal rehabilitation and indeed his counsel conceded that, in the future, there was “some possibility” of his reoffending. He is clearly not a person of “good character.”

91.    The Applicant’s formal submission concedes as much but it invites the Tribunal to consider, against this, Mr Kassem’s poor state of health, his lack of employable skills, his unfamiliarity with and lack of support network in Lebanon and the general adverse situation of life in that country.

92.    It is not for the Tribunal to consider what might become of Mr Kassem in the event that the Minister’s decision is affirmed. If he has genuine concerns about his physical safety if returned to Lebanon he has the option of applying for a Protection Visa, which is one class of visa for which he could be considered despite the prohibitions otherwise outlined in section 501E of the Migration Act. There is also the option for him to apply for the exercise of Ministerial discretion under section 195A of that Act.

93.    There are thus two grounds upon which Mr Kassem’s original grant of citizenship could be revoked:

(1)     on the basis that he was not a permanent resident at the time of the grant and hence not eligible to have his application considered (Citizenship Act section 21(2)(b)) and

(2)     on the basis that he was not of “good character” at the time the Minister made his decision (Citizenship Act section 21 (2)(h)).

94.    The former was the basis upon which the Delegate made the original decision. The latter was a ground open to and available for her to use, and although she did not do so, it is a ground upon which the Tribunal can rely if it is so minded.

95.    The Tribunal finds that there is a good and proper reason for Mr Kassem’s prior granting of citizenship to be cancelled on each of the grounds stated above.

DECISION

96. The decision under review is affirmed.

(Footnotes omitted.)

The statutory provisions

38    The following are the relevant provisions of the Citizenship Act:

Preamble

The Parliament recognises that Australian citizenship represents full and formal membership of the community of the Commonwealth of Australia, and Australian citizenship is a common bond, involving reciprocal rights and obligations, uniting all Australians, while respecting their diversity.

The Parliament recognises that persons conferred Australian citizenship enjoy these rights and undertake to accept these obligations:

(a)    by pledging loyalty to Australia and its people; and

(b)    by sharing their democratic beliefs; and

(c)    by respecting their rights and liberties; and

(d)    by upholding and obeying the laws of Australia.

…

20 Requirements for becoming a citizen

A person becomes an Australian citizen under this Subdivision if:

(a)    the Minister decides under subsection 24(1) to approve the person becoming an Australian citizen; and

(e)    if the person is required to make a pledge of commitment to become an Australian citizen – the person makes that pledge.

21 Application and eligibility for citizenship

(1)    A person may make an application to the Minister to become an Australian citizen.

General eligibility

(2)    A person is eligible to become an Australian citizen if the Minister is satisfied that the person:

…

(b)     is a permanent resident:

(i)     at the time the person made the application; and

(ii)     at the time of the Minister’s decision on the application; and

…

(h)     is of good character at the time of the Minister’s decision on the application.

...

24 Minister’s decision

(1)    If a person makes an application under section 21, the Minister must, by writing, approve or refuse to approve the person becoming an Australian citizen.

…

25 Minister may cancel approval

(1)    The Minister may, by writing, cancel an approval given to a person under section 24 if:

   (a)    the person has not become an Australian citizen under section 28; and

   (b)    either of the following 2 situations apply.

Eligibility criteria not met

(2)    The first situation applies if:

  (a)    the person is covered by subsection 21(2), (3) or (4); and

(b) the Minister is satisfied that, at the time the Minister proposes to cancel the approval, the person is:

(i)     not a permanent resident; or

(ii)    not likely to reside, or to continue to reside, in Australia or to maintain a close and continuing association with Australia; or

(iii)    not of good character.

Failure to make pledge of commitment

(3)    The second situation applies if:

    (a)    the person has failed to make a pledge of commitment within 12 months after the day on which the person received notice of the approval; and

    (b)    the person’s reason for the failure is not one that is prescribed by the regulations for the purposes of this subsection.

…

28 Day citizenship begins etc.

Persons required to make pledge of commitment

(1)    A person required to make a pledge of commitment becomes an Australian citizen under this Subdivision on the day on which the person makes the pledge.

…

39    The relevant provisions of the Migration Act are the following:

5 Interpretation

“non-citizen” means a person who is not an Australian citizen.

14 Unlawful non-citizens

(1)    A non-citizen in the migration zone who is not a lawful non-citizen is an unlawful non-citizen.

…

195A Minister may grant detainee visa (whether or not on application)

Persons to whom section applies

(1)    This section applies to a person who is in detention under section 189.

Minister may grant visa

(2)    If the Minister thinks that it is in the public interest to do so, the Minister may grant a person to whom this section applies a visa of a particular class (whether or not the person has applied for the visa).

(3)    In exercising the power under subsection (2), the Minister is not bound by Subdivision AA, AC or AF of Division 3 of this Part or by the regulations, but is bound by all other provisions of this Act.

Minister not under duty to consider whether to exercise power

(4)    The Minister does not have a duty to consider whether to exercise the power under subsection (2), whether he or she is requested to do so by any person, or in any other circumstances.

Minister to exercise power personally

(5)    The power under subsection (2) may only be exercised by the Minister personally.

    …

198 Removal from Australia of unlawful non-citizens

…

(6)    (2B)  An officer must remove as soon as reasonably practicable an unlawful non-citizen if:

(f)    a delegate of the Minister has cancelled a visa of the non-citizen under subsection 501(3A); and

…

501 Refusal or cancellation of visa on character grounds

…

(3A)     The Minister must cancel a visa that has been granted to a person if:

(a)    the Minister is satisfied that the person does not pass the character test because of the operation of:

(i)     paragraph (6)(a) (substantial criminal record), on the basis of paragraph (7)(a), (b) or (c); or

(ii)     paragraph (6)(e) (sexually based offences involving a child); and

(b)    the person is serving a sentence of imprisonment, on a full-time basis in a custodial institution, for an offence against a law of the Commonwealth, a State or a Territory.

…

501CA Cancellation of visa – revocation of decision under subsection 501(3A)(person serving sentence of imprisonment)

(1)    This section applies if the Minister makes a decision (the original decision) under subsection 501(3A) (person serving sentence of imprisonment) to cancel a visa that has been granted to a person.

…

(4)     The Minister may revoke the original decision if:

(a)    the person makes representations in accordance with the invitation; and

(d)    the Minister is satisfied:

(i)     that the person passes the character test (as defined by section 501); or

(ii)     that there is another reason why the original decision should be revoked.

The heart of the matter

40    At the heart of each of the applicant’s grounds of appeal is the contention that the Tribunal failed to consider, or adequately consider and engage with, the harm representations made to the Tribunal on his behalf.

41    Ground 1 puts the case on the basis that the subject of the harm representations constituted a mandatory relevant consideration. Ground 2 puts the case on the basis that the Tribunal failed to exercise its jurisdiction under s 25 of the Citizenship Act by failing to properly consider the harm representations and instead reasoned that they can be considered by the Minister or a delegate of the Minister in any application that the applicant might make for a protection visa or for the Minister personally to grant the applicant a visa under s 195A of the Migration Act. Ground 3 puts the case on the basis that the power exercised under s 25 of the Citizenship Act is a discretionary power, but that the Tribunal’s approach was to find the decision of the delegate correct rather than to itself exercise the discretion, including by taking into consideration the harm representations.

Ground 1 – Mandatory consideration

The parties’ submissions

42    It was common ground that whether the harm representations were a mandatory relevant consideration “must be determined by implication from the subject-matter, scope and purpose of the Act”: Minister for Aboriginal Affairs v Peko-Wallsend [1986] HCA 40; 162 CLR 24 at 39-40 per Mason J.

43    Section 25 of the Citizenship Act does not prescribe any matters that must be considered beyond the matters that enliven the power under that section. The applicant submitted that the following, either independently or in combination, give rise to the harm representations being mandatory.

44    First, s 198(2B) of the Migration Act which, it will be recalled, requires an officer to remove as soon as reasonably practicable an unlawful non-citizen if a delegate of the Minister has cancelled a visa of the non-citizen under s 501(3A). On the revocation of the applicant’s citizenship approval he will become an unlawful non-citizen within the meaning of those terms as quoted above and therefore subject to mandatory removal from the country.

45    It was submitted that that statutory consequence, which is demonstrative of the two statutes – the Migration Act and the Citizenship Act – being “something of a binary system operating closely in tandem” (Minister for Immigration and Border Protection v Egan [2018] FCAFC 169; 261 FCR 451 at [21] per Perram J, Allsop CJ and Jagot J agreeing), had the result that the exercise of the power under s 25 required consideration of the consequences of the revocation of the citizenship approval including risks of harm such as the harm representations in this case.

46    Further, the applicant drew attention to the Preamble to the Citizenship Act which states that “Australian citizenship represents full and formal membership of the community of the Commonwealth of Australia” which, it was submitted, includes the right to remain in Australia. Thus, it was said, the exercise of the power under s 25 of the Citizenship Act to terminate the process of acquiring citizenship requires consideration of the consequences of the loss of the right to remain in Australia. The applicant submitted that consideration of those consequences was thus within the subject-matter and scope of the Citizenship Act.

47    Secondly, the applicant submitted that the power under s 25 was required to be exercised reasonably and in accordance with the requirements of procedural fairness, or natural justice. There was no controversy with regard to that: Singh v Minister for Home Affairs [2019] FCAFC 3 at [61] per Reeves, O’Callaghan and Thawley JJ. The applicant then submitted that those requirements meant that, as a matter of law, a submission seriously made on the applicant’s behalf had to be considered, and engaged with, and was in that sense a mandatory consideration.

48    The applicant relied on three cases in support of that submission, namely, in chronological order, Goundar v Minister for Immigration and Border Protection [2016] FCA 1203, Ezegbe v Minister for Immigration and Border Protection [2019] FCA 216 and Omar v Minister for Home Affairs [2019] FCA 279. I will consider these cases below.

49    The Minister submitted that it is not part of the scope, purpose or subject-matter of the Citizenship Act to provide a scheme for the prevention of harm to persons in third countries or to give effect to Australia’s non-refoulement obligations. Rather, it was submitted, as the Preamble suggests, the scope, purpose and subject-matter of the Citizenship Act is to provide for the conferral of Australian citizenship which has nothing to do with what might happen if an applicant for citizenship was to be removed from Australia.

50    The Minister submitted that this is to be contrasted with the Migration Act which plainly regulates the entry and presence in Australia of persons in the position of the applicant, including by putting in place a statutory scheme for the grant of protection visas and other visas which may address hardship where a person is required to leave Australia.

51    Australia’s non-refoulement obligations, which are provided for in the scheme of protection visas, are its obligations in public international law arising under the Refugees Convention (Convention Relating to the Status of Refugees 1951, done at Geneva on 28 July 1951 as amended by the Protocol Relating to the Status of Refugees 1967, done at New York on 31 January 1967), and under the CAT (Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, opened for signature 10 December 1984, 1465 UNTS 85 (entered into force 26 June 1987)) and the ICCPR (International Covenant on Civil and Political Rights, opened for signature 16 December 1996, 999 UNTS 171 (entered into force 23 March 1976)): BCR16 v Minister for Immigration and Border Protection [2017] FCAFC 96; 248 FCR 456 at [36].

52    Finally, the Minister accepted that there are “connections” between the two statutes but he submitted that the statutes have clearly different objects and roles.

Consideration

53    The scheme for the conferral of citizenship, and in particular the cancellation of an approval for citizenship under s 25 of the Citizenship Act, was considered by the Full Court (per Perram, Yates and Mortimer JJ) in Grass v Minister for Immigration and Border Protection [2015] FCAFC 44; 231 FCR 128. The Court observed (at [53]) that Parliament intended to give the Minister a power to cancel an approval which can be exercised in a broader range of circumstances than the power to revoke a person’s citizenship under s 34.

54    The Court drew attention (at [56]) to how the scheme for approval for citizenship “is intended to operate in a fluid way, changing a person’s access to an approval, adversely to that person, as events occur which Parliament has either identified expressly as impacting on whether a person should be able to become a citizen, or Parliament has left to the repository of the power to decide whether those changed events should have such an impact”. It was said (at [57]) that the placement of s 25 in the scheme indicates Parliament’s intention to afford a further opportunity, prior to a person taking the pledge of commitment, for the Executive to deny a person citizenship. The first of the two preconditions in s 25(1) (i.e. the person has not become an Australian citizen under s 28), combined with the much narrower criteria in s 34 for revocation after citizenship is granted, reveals a legislative intention that reconsideration of an approval be available on broader grounds.

55    With some prescience, in light of the circumstances of the present case, the Court stated the following (at [58]):

Section 25(1), to be read with s 25(2) and (3), is designed to empower the Minister to revisit the citizenship approval previously granted. Relevantly, s 25(1)(b), read with s 25(2), is designed to empower the Minister to revisit a person’s satisfaction of the eligibility criteria, presumably because of the receipt of new or different information, or to correct administrative error in the approval process. The first two circumstances in s 25(2)(b) (continuing permanent residence status, and factual residence in Australia) are clearly matters which could have changed in the interim period between an approval being secured and arrangements being made for a person to take the pledge of commitment. For example, a person could have had her or his permanent resident visa cancelled.

(Emphasis added.)

56    The Court reasoned (at [59]) that the opportunity to cancel a visa on the basis of being satisfied that the person is not of good character allows for changes of circumstances in the time between the granting of an approval and a person in fact taking the pledge of commitment. It was said that the text and context of the provision do not suggest any narrow approach should be taken to the circumstances which might give rise to a reconsideration of the “good character” of a person holding a citizenship approval. Another indication of breadth is that the term “good character” is not defined in the Citizenship Act (at [60]). This reveals a “legislative decision to leave room to the repository of the cancellation power to reconsider a range of events and conduct connected with the person who has been granted a citizenship approval”.

57    The analysis in Grass reveals the breadth of the decision-making power under s 25(1), particularly in the case of cancellation on the ground of “not of good character”, but it does not speak to what are mandatory considerations in the exercise of that power.

58    I now consider the cases referred to by the applicant.

59    In Goundar, the applicant sought judicial review of the decision of the Minister not to revoke, under s 501CA of the Migration Act, a visa cancellation decision made under s 501(3A). One of the representations that the applicant had made to the Minister was with regard to a risk of retribution against him “from the victim and his ex-wife’s family if he returned to Fiji”. That was referred to as the retribution representation.

60    In the Minister’s statement of reasons it was stated that the applicant had made claims that may give rise to international non-refoulement obligations but that he was able to make a valid application for another visa including a protection visa and that it was therefore unnecessary to determine whether non-refoulement obligations were owed to him. It will be recognised that paragraph [92] of the Tribunal’s reasons in the present case (quoted in [37] above) is something of an echo of this statement.

61    Robertson J found (at [47]) that the Minister did not consider the applicant’s retribution representation except in the context of Australia’s international non-refoulement obligations and in doing so assumed that the risk of retribution, and the consequent risk of safety which the applicant had stated in his representation, was coterminous with the risk relevant to the issue of a protection visa.

62    His Honour concluded (at [53]) that the legally erroneous reasoning was that the Minister did not consider that part of the representations made by the applicant which concerned the risk of retribution and the risk to his safety because of the view the Minister took that the claim could be dealt with later in any application for a protection visa. In doing so, the Minister treated non-protection visa harm as irrelevant to the exercise of his discretion under s 501CA(4).

63    His Honour (at [55]) concluded that it was not necessary to determine the issue of whether the applicant’s representation as to the risk of retribution was a mandatory relevant consideration. After citing Peko-Wallsend, his Honour stated that while he accepted that under s 501CA(4) representations as a whole constitute a mandatory relevant consideration, he does not accept that any particular statement in the representations should be so characterised. It is in particular this point that the applicant in the present case relies on in submitting that if harm representations are made, and are accepted by the Minister as not being prohibited, then the Tribunal is obliged to consider them as mandatory considerations.

64    It will be immediately appreciated that this reasoning does not support the submission made under ground 1 that the scope, purpose and subject-matter of the Citizenship Act leads to the conclusion that the harm representations are mandatory considerations. Rather, the reasoning in Goundar is authority for ground 2, i.e. that since the harm representations were not prohibited from consideration, once they were seriously and substantively made they had to be considered.

65    Ezegbe also concerned the Minister’s discretionary refusal, under s 501CA of the Migration Act, to revoke the cancellation of a permanent resident visa under s 501(3A). Part of the applicant’s representations to the Minister included a contention that if he was returned to Nigeria he would be targeted by both sides of a conflict existing in that country.

66    As in the case of Goundar, the Minister declined to consider that representation on the basis that it could be considered if the applicant applied for a protection visa. Perram J concluded (at [17]) that because there was a possibility that the applicant could successfully apply for a protection visa, the argument was in effect that there was a risk that he would be refouled to Nigeria. His Honour concluded that such a risk is not a mandatory relevant consideration, although the legal consequences of a decision are mandatory relevant considerations.

67    Perram J further reasoned (at [18]) that it will rarely be possible to discern from the subject-matter, purpose and scope of the relevant statute that matters of speculation are mandatorily to be taken into account (citing Peko-Wallsend). Again as in Goundar, in Ezegbe Perram J (at [34]) found that the Minister did not consider the applicant’s case based on harm outside the protection visa context. His Honour held (at [36]) that the Minister was “obliged to deal with any clearly articulated case” that the applicant would be harmed if he was returned to Nigeria. It was reasoned that whatever relevance that had to issues of non-refoulement, it was also a straightforward argument that he would be harmed if returned which was relevant to the function being performed under s 501CA(4) and that with regard to the discretionary decision which was to be made, this was a material submission.

68    It is accordingly apparent that Ezegbe does not support the applicant’s submission that the harm representations were mandatory relevant considerations in the Peko-Wallsend sense, but they did constitute a “material submission” relevant to the exercise of the discretion and for that reason the Tribunal was required to consider them.

69    Omar also dealt with a decision, on this occasion by the Assistant Minister, under s 501CA(4) of the Migration Act not to exercise the discretionary power to revoke an earlier decision under s 501(3A) to cancel a visa. Mortimer J (at [46]) concluded that the Assistant Minister was required to consider all the “reasons” to revoke the cancellation decision put forward in the representations on behalf of the applicant, or at least “all those seriously and substantively advanced”. Her Honour stated that the Assistant Minister “was not authorised to simply carve out aspects of the representations made and particular ‘reasons’ advanced, and decline to deal with them”. This he had done on the basis that they could be considered in any protection visa application made by the applicant.

70    This case is also authority for the proposition that the Tribunal was bound to consider the applicant’s harm representations because they were certainly seriously and substantively advanced, but it is not authority for the proposition that a decision-maker under s 25 of the Citizenship Act was mandatorily required to consider what harm might result from the decision.

71    In the context of visa refusals or cancellations on character grounds under s 501 of the Migration Act, the legal consequences of the decision must be considered by the decision-maker, i.e. such consequences are a mandatory relevant consideration; if they are not considered the decision is vitiated by jurisdictional error. That much is clear from NBMZ v Minister for Immigration and Border Protection [2014] FCAFC 38; 220 FCR 1 per Allsop CJ and Katzmann J at [8]-[10] and Buchanan J at [177]-[178]; NBNB v MIBP [2014] FCAFC 39; 220 FCR 44 per Allsop CJ and Katzmann J at [2] and Buchanan J at [107]-[112] and [125]-[127] and Cotterill v Minister for Immigration and Border Protection [2016] FCAFC 61; 330 ALR 617 per North J at [107] and Kenny and Perry JJ at [132] – but cf. Murad v Assistant Minister for Immigration and Border Protection [2016] FCA 876; 154 ALD 425 per Bromwich J at [73] for a slightly narrower reading of these judgments. See also Minister for Immigration and Border Protection v Stretton [2016] FCAFC 11; 237 FCR 1 per Griffiths J at [67], with which Allsop CJ (at [1]) and Wigney J (at [90]) agreed, and DLJ18 v Minister for Home Affairs [2018] FCA 1650 per Thawley J at [39]-[42].

72    The referenced paragraphs of the judgments of Buchanan J in NBMZ and NBNB and North J in Cotterill demonstrate that their Honours also regarded the practical consequences of the decisions to be mandatory considerations, although clearly it may be conceptually difficult to draw a clear line between the legal consequences of a decision and the practical consequences that flow from those legal consequences.

73    In my view the reasoning of Allsop CJ and Katzmann J in the referenced paragraphs of NBMZ and NBNB, namely that the Minister must take into account the Act and its operation in making a decision and to make a decision without taking into account what Parliament has prescribed by way of legal consequence is to fail to take into account the legal framework of the decision, applies equally to a decision under s 25 of the Citizenship Act.

74    I accept the Minister’s submission that whilst the two statutes in question are clearly interrelated, the conferral of citizenship, and any revocation of such conferral, gives rise to considerations that are separate from the question of the applicant’s status in Australia and his right to remain, including the consequences if he cannot remain. Those matters are pre-eminently addressed under the Migration Act. Although both statutes are part of one scheme, and decisions under one statute may therefore have legal consequences under the other which would have to be taken into consideration, the cancellation of an approval for citizenship under s 25(2)(b)(i) or (iii) (being the operative provisions in this case) does not have the necessary legal consequence that the person concerned will lose their right to remain in Australia. So, whilst the legal consequences of the decision must be taken into account, those consequences do not necessarily include removal from Australia which is the presumption on which the harm representations are based.

75    In that regard, although a citizen has the right to leave and re-enter the country (Air Caledonie International v Commonwealth of Australia (1988) 165 CLR 462 at 469 per Mason CJ, Wilson, Brennan, Deane, Toohey and Gaudron JJ), an approval for citizenship, which is a necessary precursor to a conferral of citizenship, does not confer that right. Thus, the cancellation of such an approval does not extinguish that right; such rights as the applicant had to remain in Australia did not arise from his approval for citizenship.

76    The fact that the applicant is liable to be deported under s 198(2B) of the Migration Act if his citizenship approval is cancelled does not have the effect of making the harm that he would suffer from such deportation a mandatory relevant consideration with regard to the cancellation of his citizenship approval. That harm is something that arises because of his particular circumstances and is not a consequence that would ordinarily or necessarily flow from cancellation of a citizenship approval under the Citizenship Act.

77    It follows that in my view ground 1 must fail. From the reasons given above, and from what follows, it will be apparent that that conclusion does not detract from the conclusion in relation to ground 2 that if the practical consequences of the cancellation of the approval for citizenship are the subject of specific submissions, those submissions must be taken into account.

Ground 2 – failure to exercise jurisdiction

The parties’ submissions

78    The applicant submitted that all, or at least some, of the harm identified in his harm representations was not within the scope of a protection visa. Therefore, he submitted, the Tribunal’s approach to those submissions by not dealing with them substantively but rather reasoning that the applicant can apply for a protection visa constituted a failure by it to exercise its jurisdiction. The applicant also characterised this failure as a failure to undertake the statutory task.

79    In respect of the Tribunal’s identification that the applicant also has the option to apply for the exercise of Ministerial discretion under s 195A of the Citizenship Act, the applicant submitted that that power is non-compellable. Therefore, he submitted, it is merely speculative as to whether the harm representations would be considered under that section if the applicant was to apply for a visa under it with the effect that, in this respect as well, the Tribunal failed to exercise jurisdiction.

80    The applicant referred to Minister for Immigration and Border Protection v Le [2016] FCAFC 120; 244 FCR 56 and BCR16 in support of his submissions. I will return to those cases.

81    The Minister submitted that BCR16 is an inapt analogy with the present case.

82    The Minister submitted that it is no answer for the applicant to say that the power under s 195A of the Migration Act is non-compellable because the Tribunal reasoned only that it was open to the applicant to seek the Minister’s intervention under that section.

Consideration

83    As with the cases considered under ground 1 in paragraphs [59]-[70] above, BCR16 concerned a decision, by the Assistant Minister, not to exercise the power under s 501CA(4) of the Migration Act to revoke a cancellation under s 501. Submissions were made by the appellant that focused on his fears of the harm that would face him in a practical and day-to-day sense if he was forced to return to live in Lebanon. The Assistant Minister dealt with those representations on the basis that the appellant could make an application for a protection visa.

84    Bromberg and Mortimer JJ (at [60]) identified that the Assistant Minister’s reasons stated that it was “unnecessary to determine” whether non-refoulement obligations are owed because the appellant could make a protection visa application. That was held to be an incorrect understanding of the operation of the Migration Act with regard to the consideration of risks of harm, and it was an incorrect characterisation of the submissions put by the applicant.

85    Bromberg and Mortimer JJ (at [62]) characterised the error as a failure to carry out the task required under the statutory provision. The error was that the Assistant Minister formed the view that she did not have to address, or turn her mind to, the risk of serious or significant harm that might be faced by the appellant on return to Lebanon because that could be dealt with through another process, if the appellant chose to apply for a protection visa.

86    Before me, the Minister submitted that BCR16 is an inapt analogy with the present case because decisions taken under s 25 of the Citizenship Act do not directly relate to the ability of a person in the position of the applicant to enter and remain in Australia. It was submitted that it had been open to the applicant to make his harm representations to the Minister pursuant to s 501CA(3) in relation to the cancellation of his permanent residence visa, and the fact that he failed to do so does not alter the scope of the Tribunal’s obligations when reviewing a separate decision taken under the Citizenship Act.

87    I do not accept the Minister’s submission. It was common ground that s 25 of the Citizenship Act conferred a discretion. That necessarily implies the possibility of considering matters beyond merely the grounds on which the power, and hence the discretion, is enlivened, viz., relevantly, that the applicant is not a permanent resident or is not of good character. Once the harm representations were made, and they were properly regarded as “seriously and substantively advanced” (Omar at [46]), as they obviously were, the Tribunal was bound to meaningfully consider them. See also SZSSC v Minister for Immigration and Border Protection [2014] FCA 863; 317 ALR 365 at [81] per Griffiths J and the authorities there cited.

88    The real question is whether the Tribunal did meaningfully consider the harm representations. The Minister submitted that it did. He submitted that insofar as the representations included types of harm covered by Australia’s non-refoulement obligations, they were considered by the Tribunal by referring to the option for the applicant to apply for a protection visa. The Minister submitted that to the extent that the harm representations covered non-protection visa harm, they were considered by the Tribunal by referring to the possibility of being considered under s 195A of the Migration Act.

89    Le considered whether Australia’s non-refoulement obligations are mandatory considerations at the time when consideration is being given to the exercise of the powers in s 501(1) or (2) of the Migration Act to cancel a visa on character grounds. In concluding that those were not mandatory considerations in that context, the Court (at [61(f)] per Allsop CJ and Griffiths and Wigney JJ) said that the position is generally unaffected by the presence in the Migration Act of s 195A which confers personal powers on the Minister to grant a visa to a detainee which would have the effect of changing the detainee’s status from being an unlawful citizen. It was reasoned that there is no legal duty on the Minister to consider whether to exercise such a personal power, whether he or she is requested to do so by any person or in any other circumstances (referring to s 195A(4)). Hence, there is no assurance that the Minister will even consider whether or not to exercise such a personal power, with the consequence that there is no assurance that any consideration will subsequently be given in a relevant case to Australia’s non-refoulement obligations or the prospect of indefinite detention.

90    The Court reasoned to the same effect in NBMZ at [4] and [128]-[129].

91    In my view, Le and NBMZ make good the applicant’s submission in respect of s 195A. That is to say, it is no answer to the complaint that the Tribunal did not consider the harm representations to say that they would be considered if the applicant applied for a visa under s 195A. They would not necessarily be considered there at all, in which event they would remain unconsidered.

92    The type of harm that gives rise to qualification for a protection visa is identified in s 36(2) of the Migration Act as arising from Australia’s protection obligations because “the person is a refugee” (paragraph (a)) or “the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm” (paragraph (aa)). The meaning of “refugee” is defined in s 5H and the meaning of “significant harm” is defined in s 36 (2A). It is not necessary to go to these provisions in any detail – it is clear that most if not all the categories of harm complained of by the applicant (as identified in paragraph [32] above) do not fall within those categories.

93    Further, s 36(1A)(a) of the Migration Act, with reference to s 36(1C)(b) – which is “lurking for the unwary” (Ezegbe at [11]) – excludes from qualification for a protection visa a person who has been convicted by a final judgment of a “particularly serious crime” and whom the Minister considers on reasonable grounds is a danger to the Australian community. Section 5M provides that a “serious Australian offence” is a particularly serious crime. In s 5, “serious Australian offence” is defined as including an offence that involves violence against a person and which is punishable by imprisonment for a maximum term of not less than three years.

94    It will be recalled that one of the offences for which the applicant was convicted is “kidnapping” under s 86 of the Crimes Act 1900 (NSW), which carries a maximum penalty of imprisonment of 14 years. The result is that it may be that even if there is some part of the harm of which the applicant complains which would potentially qualify him for a protection visa, he is probably excluded from such a visa – since the Minister argued before the Tribunal that the applicant’s citizenship approval should be cancelled on grounds of “not of good character” it can be taken to be likely that the Minister would be satisfied that the applicant is “a danger to the Australian community” as referred to in s 36(1C)(b) of the Migration Act.

95    The short point is that it was not a proper exercise of the Tribunal’s jurisdiction to “carve out” from consideration representations made to it and to leave those to other processes which may or may not occur. At least one of those processes is not compellable (i.e. s 195A) and the other one does not cover most of the harm complained of and is in any event probably not available (i.e. s 36).

96    It can hardly be disputed that Australian citizenship is highly prized and difficult to gain. The cancellation of an approval for citizenship in almost any circumstance will have real human consequences. In the particular circumstances of this case, those consequences are likely to be particularly severe. That does not mean that the applicant’s approval for citizenship should not be cancelled. Perhaps it should, but that is not a matter for the Court. What is clear, though, is that when such cancellation is considered and representations are made as to the hardship that will flow from such cancellation, those representations must be properly engaged with and considered. That did not happen on this case. That constitutes an error of law.

97    In the circumstances, ground 2 is made out and the appeal must succeed.

Ground 3 – discretion to cancel

The parties’ submissions

98    The applicant submitted that the Tribunal’s approach to the matter before it was to find the decision of the delegate correct on finding that the criteria in subparagraphs (i) and (iii) of s 25(2)(b) were satisfied. It was submitted that nowhere in the decision is a consideration of whether the discretion should be exercised, notwithstanding that the parties were in agreement that a discretion was enlivened.

99    The Minister submitted that the Tribunal accurately set out the terms of s 25 of the Citizenship Act and described the power in that section with reference to circumstances when the Minister “may” cancel an approval, which indicates an appreciation that the power was discretionary. Further, the Minister drew attention to paragraphs [94] and [95] of the Tribunal’s reasons. In the former, the Tribunal recognised that cancellation of the applicant’s citizenship approval on the basis that he was not of “good character” was a ground open to and available to the delegate and “it is a ground upon which the Tribunal can rely if it is so minded”. Then, in the latter, the Tribunal showed that it was so minded in finding that “there is a good and proper reason” for the applicant’s prior granting of citizenship to be cancelled “on each of the grounds stated above”, i.e. on the basis that he was not a permanent resident and that he was not of good character.

100    The Minister submitted that the Tribunal also recognised that it had a duty to make the correct and preferable decision and that the question for determination before it was not whether the decision which the decision-maker made was the correct and preferable one (with reference to [12]-[13] of the Tribunal’s reasons).

Consideration

101    The applicant accepted the general principle that the Court should construe the Tribunal’s reasons fairly, as a whole, and without an eye finely attuned for the detection of error: Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; 185 CLR 259 at 271-272; Minister for Immigration and Border Protection v Tran [2015] FCA 546; 232 FCR 540 at 547-548 [24] per Jagot J.

102    As I have indicated above, the Tribunal’s reasons contain indications that it appreciated that it stood in the shoes of the decision-maker and had the power of the decision-maker. That appears, in particular, in paragraph [11] where it was recognised that it does not matter what basis was used by the delegate for making her decision because, on appeal to the Tribunal, the process starts de novo.

103    Whilst there are indications in the Tribunal’s reasons which would tend to indicate that it understood its role to be to decide whether or not the delegate made the right decision, or whether the decision made by the delegate was open to her, rather than making the decision itself, ultimately I am satisfied that the Tribunal understood that it was itself exercising the power under s 25 of the Citizenship Act. As the Minister submitted, this is particularly apparent from paragraphs [94] and [95] of the Tribunal’s reasons, and in particular the Tribunal’s articulation that not being of good character was a ground on which the Tribunal could rely (and on which the delegate did not rely), and that there was “good and proper reason” to rely on that ground. That indicates that the Tribunal did itself make the decision on that ground.

104    However, that analysis serves only to demonstrate the validity of the applicant’s ground 2 – clearly the Tribunal did not consider anything beyond the fact that two circumstances for the enlivening of the power under s 25 arose, and it exercised the power on the strength of those circumstances only (i.e. that the applicant was not the holder of a permanent resident visa and was not of good character). Thus, whilst it made the decision itself it did so on an incorrect understanding of the discretion that it had and thus failed to consider and engage with material submissions made to it.

105    Ground 3 accordingly fails.

Conclusion

106    For the reasons given above, the appeal succeeds on ground 2.

107    As the successful party, the applicant should have his costs. The Minister did not submit to the contrary.

Associate:

Dated:    2 August 2019