Federal Court of Australia

Makarov v Minister for Home Affairs (No 2) [2020] FCA 1275

ORDERS

THE COURT ORDERS THAT:

1.    The separate question be answered “no”.

2.    Costs of the separate question be costs in the cause.

3.    The applicant file and serve any amended originating application by 14 September 2020.

4.    The applicant file and serve any additional affidavits by 14 September 2020.

5.    The respondents file and serve any affidavits by 28 September 2020.

6.    The applicants file and serve any affidavits in reply by 6 October 2020.

7.    The respondents file and serve an application book by 9 October 2020.

8.    The applicant file and serve an outline of submissions, together with a list of authorities, by 15 October 2020.

9.    The respondents file and serve an outline of submissions by 22 October 2020, and provide to my chambers a USB containing the joint authorities and the relevant point in time legislation.

10.    No outline of submissions should exceed 10 pages and each must be typed using Times New Roman 12 font and one and a half spacing.

11.    The remaining questions be fixed for hearing at 10.15am on 29 October 2020.

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

REASONS FOR JUDGMENT

(Revised from transcript)

KATZMANN J:

1    This is the second of two challenges brought by Victor Makarov to a decision made some 13 years ago to revoke his Australian citizenship. The first was dismissed by the Administrative Appeals Tribunal after it declined to extend the time to review the decision. That was the subject of an unsuccessful appeal to this Court: Makarov v Minister for Home Affairs [2012] FCA 734. This one is an application for judicial review of the decision.

2    The revocation decision was purportedly made under s 34(2) of the Australian Citizenship Act 2007 (Cth).

3    At the time the decision was made, s 34(2) relevantly provided as follows:

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)    …

(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);

(iii)    …

(iv)    …; and

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

4    By s 34(5), a person is relevantly taken to have been convicted of a serious offence if they have been convicted of an offence under Australian law for which they have been sentenced to a “serious prison sentence” and the offence was committed before they became an Australian citizen. A “serious prison sentence” is defined in s 3 to mean a sentence of imprisonment for a period of at least 12 months.

5    In the present case there is no dispute that the conditions in s 34(2) were satisfied at the time the decision was made.

6    But s 34(3) imposes two limitations on the exercise of the revocation power. It provides:

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

(a)    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

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

(Emphasis added.)

7    In other words, the Minister must not decide to revoke a person’s Australian citizenship if the Minister is satisfied that, by doing so, the person would be rendered stateless.

8    Mr Makarov was born in the Soviet Union but raised in the Ukraine where he acquired Ukrainian citizenship. He arrived in Australia in July 1997, the holder of a Subclass 456 visa, and was later granted a permanent Subclass 121 visa. In 2000 he applied for Australian citizenship and on 8 February 2001 he was granted Australian citizenship. After he was convicted of multiple child sex offences, committed before he had been granted Australian citizenship, for which he was sentenced to 12 years’ imprisonment, the Minister decided to revoke his Australian citizenship because he was satisfied that it would be contrary to the public interest for Mr Makarov to remain an Australian citizen.

9    In the present proceeding Mr Makarov seeks an order, pursuant to s 39B of the Judiciary Act 1903 (Cth), quashing the Minister’s decision on the ground that it was beyond the Minister’s jurisdiction. His contention is that the Minister was prevented from making his decision because it would have rendered him stateless and he wishes to adduce expert evidence to support that contention. It is common ground that he may only adduce that evidence if the question of whether the revocation of his Australian citizenship would cause him to become “a person who is not a national or citizen of any country” is a jurisdictional fact. This judgment is concerned with that question only, after an order was made by consent that it be heard separately in advance of any other questions. The question took the following form:

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

10    Mr Makarov contends that the separate question should be answered in the affirmative. For the following reasons that contention cannot be accepted.

11    Whether or not a criterion can properly be characterised as a jurisdictional fact is a matter of statutory construction: Plaintiff M70/2011 v Minister for Immigration and Citizenship (2011) 244 CLR 144 at [58] (French CJ), [85]–[91] (Gummow, Hayne, Crennan and Bell JJ). In the present context, the term “jurisdictional fact” refers to “a criterion, satisfaction of which mandates a particular outcome”: Corporation of the City of Enfield v Development Assessment Commission (2000) 199 CLR 135 at [28] (Gleeson CJ, Gummow, Kirby and Hayne JJ).

12    Mr Makarov argued that the question of whether a person would become one “who is not a national or citizen of any country” for the purposes of s 34(3)(b) of the Citizenship Act is properly characterised as a jurisdictional fact because a person’s citizenship or nationality is a matter determined by reference to the domestic laws of the relevant country, citing VSAB v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 239 at [49]–[52] (Weinberg J).

13    The argument is a non sequitur. That a person’s citizenship or nationality is determined by reference to the domestic laws of the relevant country does not mean that the question of whether a person would become one “who is not a national or citizen of any country” for the purposes of s 34(3)(b) is a jurisdictional fact. Further, the remarks in VSAB are not to the point. They were not concerned with jurisdictional facts and had nothing to do with the question at hand. The issue in that case was whether there was no evidence upon which the Refugee Review Tribunal could have found that the appellant was a citizen of the Former Yugoslav Republic of Macedonia.

14    In oral argument Mr Makarov also relied on some remarks of the Full Court (Kerr, White and Charlesworth JJ) in FER17 v Minister for Immigration, Citizenship and Multicultural Affairs (2019) 269 FCR 580 at [85], an appeal from a judgment of the Federal Circuit Court on a review of a decision of the Immigration Assessment Authority. Like VSAB, however, this case has nothing of relevance to say on the question currently before the Court.

15    Mr Makarov submitted that the requirement in s 34(3)(b) is akin to a statutory criterion the satisfaction of which must be informed by objective evidence of the content and operation of foreign citizenship laws, referring to Plaintiff M70 at [66]–[67] (French CJ). In the present case, he argued, the mere fact that the Minister formed “a state of subjective satisfaction” as to the subject-matter of the provision is “an insufficient or incomplete answer to the question of whether the Minister’s exercise of the power in s 34(2) … was lawful”.

16    It is true that the fact that the Minister was not satisfied that Mr Makarov would become stateless if he revoked his Australian citizenship is not a complete answer to the question of whether his exercise of the power to do so was lawful. A negative answer to the separate question would not dispose of Mr Makarov’s application. But that does not assist Mr Makarov’s case at this point.

17    Not all jurisdictional facts are established solely or at all by objective evidence. As Derrington J, writing extra-judicially, recently explained:

Parliament may confine the scope of the power it confers on the executive by … [regulating] the occasions on which executive power might be exercised. Not infrequently, that occurs by it specifying that a power may only be exercised if a prescribed state of affairs exists. That state of affairs, referred to herein as a “jurisdictional fact”, may be an objectively identifiable fact, the formation of a state of mind, usually to be held by the repository of the power, or even a combination of the two.

See R Derrington, “Migrating towards a Principled Approach to Reviewing Jurisdictional Facts” (2020) 27 AJ Admin L 70 at 70.

18    While it is informed by contextual matters, the task of statutory construction begins and ends with the text: Federal Commissioner of Taxation v Consolidated Media Holdings Ltd (2012) 250 CLR 503 at [39]. The fundamental difficulty with Mr Makarov’s position is that it fails to confront the text. On a plain reading of s 34(3)(b), the criterion which precludes the Minister from revoking Australian citizenship is not that the person would become a person who is not a national or citizen of any country. Rather, it is that the Minister is satisfied that that they would. The provision with which Plaintiff M70 was concerned was s 198A(3)(a) of the Migration Act 1958 (Cth), which was cast in very different terms. It did not refer to the Minister’s state of mind.

19    It is a long-established legislative drafting technique to include in a pre-condition to the exercise of a power or duty a subjective element, such as an opinion, belief or a state of satisfaction: Wilkie v The Commonwealth (2017) 263 CLR 487 at [98]. The obvious legislative purpose is to limit the scope for judicial review. On the review of a decision made in accordance with a provision of this kind, the role of the Court is not to decide whether the matter in respect of which the Minister is required to form an opinion or reach a state of satisfaction actually existed. Rather, it is to ascertain whether the decision-maker had formed the requisite opinion or reached the requisite state of satisfaction according to law. See, for example, Ali v Minister for Home Affairs [2020] FCAFC 109 at [42] and Commissioner of Taxation v Addy [2020] FCAFC 135 at [134] (Derrington J) and the authorities referred to there. As French CJ put it in Plaintiff M70 at [57]:

Where a power is expressly conditioned upon the formation of a state of mind by the decision-maker, be it an opinion, belief, state of satisfaction or suspicion, the existence of the state of mind itself will constitute a jurisdictional fact.

20    Put another way, “[t]he use of a subjective criterion or precondition … limits the circumstances in which an application for judicial review can succeed”. In such a case, it is the opinion, rather than the underlying facts, which is the criterion conditioning the exercise of the power. See Minister Administering the Crown Lands Act v New South Wales Aboriginal Land Council [2009] NSWCA 151 at [33] (Basten JA, Beazley and Tobias JJA agreeing at [1]).

21    Section 65(1) of the Migration Act is an example of such of provision. With certain qualifications not presently relevant, it imposes an obligation on the Minister, after considering a valid application for a visa, to grant the visa if satisfied of a number of matters and, if not so satisfied, to refuse to grant the visa. In the case of an application to review the decision of the Minister to refuse to grant a protection visa, the jurisdictional fact upon the presence of which jurisdiction is conditioned is the satisfaction of the Minister that the applicant answers the description in s 36(2) of the Act: Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611 at [130] (Gummow J). It is trite that the question of whether any of the criteria in s 36(2) has actually been satisfied is not a matter for a court on judicial review. The courts have no jurisdiction to determine that question: Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611 at [38]–[39] (Gummow ACJ and Kiefel J).

22    In his written submissions Mr Makarov relied on the joint judgment in Enfield at [22] for the proposition that “where a question arises as to whether a decision-maker has erred as to the jurisdictional facts, that question has to be answered by the court in which it is litigated upon the evidence before that court” (presumably in contrast to the evidence before the decision-maker). But the submission omitted the critical phrase “as in this case”, which appeared after the words “jurisdictional facts”. Enfield was concerned with objective jurisdictional facts. Their Honours were not laying down a universal proposition for all kinds of jurisdictional facts.

23    The provision in Enfield was very different from s 34(3) of the Citizenship Act. In Enfield the mandated outcome was a prohibition on the grant of a provisional development plan consent to a “non-complying” development imposed by s 32 of the Development Act 1993 (SA). Section 35(3) of the Development Act required the relevant authority not to grant a provisional development plan consent to a non-complying development unless, in a case such as Enfield, the Minister and the Corporation agreed to the grant of consent. The determination of the question whether the landowner and developer, Collex, proposed a non-complying development was “a condition upon the existence of which there operated the obligation that the Commission not grant consent” (at [28]). Collex, argued that the Commission is only required to refuse to grant consent if, upon the material before the Commission, it classifies the development as a non-complying development and that, in reviewing the Commission’s decision, the Supreme Court was restricted to the material that was before the Commission (at [29]). The High Court rejected Collex’s argument. The plurality, with whom Gaudron J agreed at [53], held at [33]–[34]:

33    [T]aken as a whole, the text of s 35 does not suggest that the determination whether, upon the criteria specified in s 35, the responsible authority is or is not obliged to consent rests upon its own classification of the relevant circumstances. Rather, it indicates that it is not for the relevant authority itself to determine, as a matter of its opinion, whether the restriction imposed upon it by s 35(3) applies because the development is a “non-complying” development. Section 35(3) does not define the criterion of operation as the opinion of the relevant authority as to the classification of the development.

34    Had s 35(3) been expressed so as to turn upon the satisfaction or opinion of the relevant authority as to a state of affairs, or were it to be so understood, as Collex submitted, further questions would have arisen. In particular, the existence of the opinion or satisfaction would be treated as requiring an opinion or satisfaction formed reasonably upon the material before the decision-maker (57). But that is not what s 35(3) involves. It stipulates in direct terms a precondition which obliges, without certain concurrences, refusal of a grant of consent.

24    In contrast to Enfield, the determination of the relevant criterion in the present case “turn[ed] upon the satisfaction … of the relevant authority”. The criterion which precludes the making of a revocation decision is that the Minister is satisfied that the person, whose citizenship is under consideration for revocation, would become a person who is not a national or citizen of any country if Australian citizenship were revoked, not the objective fact that the person would thereby become such a person.

25    Consequently, the answer to the separate question is no. It follows that evidence on whether Mr Makarov would in fact have become stateless on the revocation of his citizenship is inadmissible. The scope of the review is limited to determining whether the Minister’s state of satisfaction was reached according to law: Buck v Bavone (1976) 135 CLR 110 at 118–9 (Gibbs J); QBE Insurance (Australia) Ltd v Miller [2013] NSWCA 442 at [17] (Basten JA with whom Ward JA and Young AJA agreed).

26    For completeness, I should note that the Minister argued that s 34(3)(b) of the Citizenship Act is not a precondition for, but a limitation upon, the exercise of the power to revoke citizenship. That may or may not be right. It seems to me that there is force in the submissions advanced on Mr Makarov’s behalf based on the remarks of the plurality in Enfield at [28], to which I referred above at [11], that each of the limitations in s 34(3) acts as a precondition to the exercise of the revocation power. In view of the opinion I have reached on the separate question, however, it is unnecessary to decide the point, at least at this stage of the review.

Associate:

Dated:    3 September 2020