Federal Court of Australia

Galuak v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 798

ORDERS

THE COURT ORDERS THAT:

1.    The application be dismissed.

2.    The applicant pay the first respondent’s costs of the application, to be assessed in default of agreement in accordance with the court’s Costs Practice Note (GPN-COSTS).

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

REASONS FOR JUDGMENT

SNADEN J:

1    The applicant was born in what is now South Sudan. He came to Australia as a child, having fled Sudan with family members. Upon (or perhaps shortly ahead of) his arrival in Australia in 2005, the applicant was granted a Special Humanitarian Visa. Two years later, he was granted Australian citizenship pursuant to ss 21(5) and 24 of the Australian Citizenship Act 2007 (Cth) (the “Citizenship Act”). He was then 14 years old.

2    Earlier that same year (2007), the applicant accosted and then raped a 17-year-old girl in parkland in Melbourne’s southeast. He remained at large for several years after the offence but was eventually charged in September 2014. He pleaded guilty and, on 26 June 2015, was convicted and sentenced to five years’ imprisonment (with a non-parole period of three years and six months). To that point, he had amassed an array of convictions for offences dating back to 2006 involving (amongst other things) violence and theft.

3    On 22 June 2017, the first respondent (the “Minister”) made a decision to revoke the applicant’s Australian citizenship pursuant to s 34(2) of the Citizenship Act (the “Minister’s Citizenship Decision”). The applicant applied to the second respondent (the “Tribunal”) for a review of that decision. On 19 July 2018, the Tribunal affirmed it (that decision is referred to hereafter as the “Tribunal’s Citizenship Decision”).

4    Assuming that it was validly made—which is a matter to which these reasons will shortly return—the Minister’s Citizenship Decision had the effect of invoking the application of s 35 of the Migration Act 1958 (Cth) (the “Migration Act”). By that section, former Australian citizens are deemed, from the point that their citizenship ceases, to be the holders of what are described as “ex-citizen visas”.

5    On 30 July 2018, a delegate of the Minister made (or purported to make) a decision under s 501(3A) of the Migration Act to cancel what was later described as the applicant’s “Class AQ Subclass 150 Former Citizen” visa. The validity of that decision (the “Cancellation”) is also the subject of some analysis below.

6    On 23 August 2018, the applicant (via the agency of his lawyers) asked the Minister for Home Affairs to revoke the Cancellation pursuant to s 501CA(4) of the Migration Act. Following from consent orders made by this court in May 2020, that request (the “Revocation Request”) came before a delegate of the Minister, who, on 31 December 2020, dismissed it. The applicant then applied to the Tribunal for a review of that decision. On 29 March 2021, the Tribunal affirmed the delegate’s decision (that decision is referred to hereafter as the “Tribunal’s Non-Revocation Decision”).

7    By a further amended originating application lodged with this court and dated 13 December 2021, the applicant moves under s 476A of the Migration Act and s 39B of the Judiciary Act 1903 (Cth) for various forms of prerogative and declaratory relief. In short, he seeks orders to set aside the revocation of his Australian citizenship (that is, to set aside the Minister’s Citizenship Decision and the Tribunal’s Citizenship Decision); or, in the alternative, to set aside the Tribunal’s Non-Revocation Decision and declare that he remains the holder of an ex-citizen visa. In either case, the applicant seeks related orders that he be released from immigration detention, where he is presently accommodated.

8    For the reasons that follow, none of the decisions that the applicant seeks to stigmatise were products of jurisdictional error. The application must (and will) be dismissed with the usual order as to costs.

The legislative framework

9    Section 34 of the Citizenship Act confers upon the Minister a limited power to revoke Australian citizenship. It relevantly provides (and, at material times, provided) as follows:

34 Revocation by Minister—offences or fraud

…

(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.

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

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

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

Time citizenship ceases

(4)    If the Minister revokes a person’s Australian citizenship, the person ceases to be an Australian citizen at the time of the revocation.

Note:    A child of the person may also cease to be an Australian citizen: see section 36.

Serious offence

(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.

10    “[S]erious prison sentence” is defined to mean a sentence of imprisonment for a period of at least 12 months: Citizenship Act, s 3.

11    Subdivision B of Division 2 of the Citizenship Act regulates citizenship by conferral (as opposed to descent or adoption). Amongst the provisions that comprise that subdivision is s 24, pursuant to which the applicant was granted citizenship in 2007.

12    Section 35 of the Migration Act is entitled “Ex-citizen visas”. It provides (and, at material times, provided) as follows:

35 Ex‑citizen visas

(1)    There is a class of permanent visas to remain in, but not re‑enter, Australia, to be known as ex‑citizen visas.

…

(3)    A person who, on or after 1 September 1994, ceases to be an Australian citizen while in the migration zone is taken to have been granted an ex‑citizen visa when that citizenship ceases.

13    Section 39B(1) of the Judiciary Act 1903 (Cth) confers upon this court jurisdiction to grant prerogative relief in respect of decisions made under the Citizenship Act. That section relevantly provides as follows:

39B Original jurisdiction of Federal Court of Australia

Scope of original jurisdiction

(1)    Subject to subsections (1B), (1C) and (1EA), the original jurisdiction of the Federal Court of Australia includes jurisdiction with respect to any matter in which a writ of mandamus or prohibition or an injunction is sought against an officer or officers of the Commonwealth.

…

14    Section 501 of the Migration Act identifies circumstances in which the Minister may—and, in some cases, must—cancel a visa on character grounds. Relevantly, it provides as follows:

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.

…

Character test

(6)    For the purposes of this section, a person does not pass the character test if:

(a)    the person has a substantial criminal record (as defined by subsection  (7))…

…

Substantial criminal record

(7)    For the purposes of the character test, a person has a substantial criminal record if:

…

(c)    the person has been sentenced to a term of imprisonment of 12 months or more…

15    Under s 501CA of the Migration Act, a non-citizen whose visa has been cancelled under s 501(3A) may apply for the revocation of that decision. The provision relevantly provides as follows:

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.

(2)    For the purposes of this section, relevant information is information (other than non-disclosable information) that the Minister considers:

(a)    would be the reason, or a part of the reason, for making the original decision; and

(b)    is specifically about the person or another person and is not just about a class of persons of which the person or other person is a member.

(3)    As soon as practicable after making the original decision, the Minister must:

(a)    give the person, in the way that the Minister considers appropriate in the circumstances:

(i)    a written notice that sets out the original decision; and

(ii)    particulars of the relevant information; and

(b)    invite the person to make representations to the Minister, within the period and in the manner ascertained in accordance with the regulations, about revocation of the original decision.

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

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

(b)    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.

…

16    The Minister’s powers under s 501CA may be exercised by his or her delegate: Migration Act, s 496. Decisions made consequent upon such a delegation are reviewable by the Tribunal: Migration Act, s 500(1)(ba). Decisions made by the Tribunal exercising that power of review are judicially reviewable by this court: Migration Act, s 476A(1)(b).

17    Section 476A of the Migration Act deserves additional attention. It identifies with specificity the types of “migration decision[s]” in respect of which jurisdiction to grant prerogative relief is conferred upon this court. The jurisdiction so conferred is limited and exhaustive: it is expressed to oust any other legislative source of equivalent jurisdiction, including s 39B of the Judiciary Act 1903 (Cth). Importantly for present purposes, it serves to deprive this court of any jurisdiction that it might otherwise attract under s 32 of the Federal Court of Australia Act 1976 (Cth).

18    That contrasts with s 476 of the Migration Act, which confers equivalent (though not similarly limited) jurisdiction upon the Federal Circuit and Family Court of Australia (div 2). The result is that a small number of “migration decisions” are reviewable in this court under s 476A of the Migration Act; and the rest are reviewable in the Federal Circuit and Family Court of Australia (div 2). Decisions to exercise the power of cancellation conferred by s 501(3A) of the Migration Act fall into the second category: Migration Act, ss 5 (and, specifically, the definition of “migration decision”), 474 and 476.

19    For present purposes, it is not in dispute that, by means of his Revocation Request, the applicant made representations of the kind to which s 501CA(4)(a) of the Migration Act refers. It is also not in dispute that the applicant did not, at relevant times, (and still does not) pass the “character test” to which s 501CA(4)(b)(i) of the Migration Act refers. At issue insofar as concerned the Revocation Request was whether there was “another reason” of which the Minister ought to have been satisfied under s 501CA(4)(b)(ii) of the Migration Act.

20    This court’s power to grant injunctive and declaratory relief is also not in question. To the extent that it doesn’t exist as an incident of inherent power (as to which, see Ainsworth v Criminal Justice Commission (1992) 175 CLR 564, 581 (hereafter “Ainsworth”; Mason CJ, Dawson, Toohey and Gaudron JJ); and Australian Broadcasting Corporation v Lenah Game Meats Pty Ltd (2001) 208 CLR 199, 288-289 (Callinan J)), it is conferred by s 21 of the Federal Court of Australia Act 1976 (Cth).

The decisions under review

21    By the present action, the applicant seeks to impugn each of the Minister’s Citizenship Decision, the Tribunal’s Citizenship Decision and the Tribunal’s Non-Revocation Decision. Each, he maintains was the product of jurisdictional error, in respect of which he claims an entitlement to the various species of prerogative and declaratory relief that are sought. It is necessary to summarise the decisions that the applicant challenges and the bases upon which they were made.

22    Before doing so, it is convenient to say something about the contentions that the applicant advanced in opposition to the revocation of his citizenship. Insofar as is presently significant, those contentions addressed two central propositions: first, that it was not contrary to the public interest that he should retain Australian citizenship (and, therefore, that no occasion to consider its revocation arose); and, second (in the event that such an occasion did arise), there were discretionary reasons that favoured his retention of Australian citizenship.

23    The applicant nominated an array of matters upon the strength of which he urged the Minister (and, later, the Tribunal) to conclude that his retention of Australian citizenship would not be contrary to the public interest. It is unnecessary to recite any of them here. It is not now suggested that the Minister (or, later, the Tribunal), in the context of assessing what was or was not contrary to the public interest, failed to consider anything that the applicant expressly advanced as relevant to that assessment.

24    On the issue of discretion (both before the Minister and, later, the Tribunal), the applicant alluded to “the legal and practical effects” of a decision to revoke his citizenship. Specifically, he noted that, were his citizenship to be revoked, he would be deemed to hold an ex-citizen visa under s 35(3) of the Migration Act, which would immediately be liable to mandatory cancellation under s 501(3A). Thereafter, he would, he noted, be subjected to immigration detention, which, “given the ethnic war and fundamental insecurity” of South Sudan (the only other nation in respect of which he holds citizenship), would “become indefinite”.

The Minister’s Citizenship Decision

25    Relevantly for present purposes, the Minister’s Citizenship Decision proceeded upon the Minister’s being satisfied that “…it would be contrary to the public interest for the purposes of paragraph 34(2)(c) of the [Citizenship] Act for [the applicant] to remain an Australian citizen”.

26    Written reasons for the Minister’s Citizenship Decision were provided. Those reasons noted at the outset that:

…[The Minister took] into account all the responses provided by [the applicant] and other supporting documentation provided on his behalf. These responses are relevant in particular to the public interest test and the exercise of [the Minister’s] discretion as to whether to revoke [the applicant]’s citizenship.

27    The Minister then proceeded to consider the matters that the applicant advanced in support of his contention that his retention of Australian citizenship would not be contrary to the public interest. That consideration occupied a page and a half of the Minister’s reasons. It did not stray beyond the matters that the applicant had advanced. It culminated in the Minister’s finding that the public interest favoured revocation.

28    The Minister’s reasons then turned to the discretionary considerations bearing upon whether or not the applicant’s citizenship should be revoked. Of present significance are the following observations:

I have also considered that a decision to revoke Mr Galuak’s Australian citizenship may impact on his ability to re-establish relationships with his immediate family and more generally within the Australian community, upon his release from prison. I have placed some weight on the disadvantage to Mr Galuak and his immediate family should his Australian citizenship be revoked. However, I have also placed weight on the fact that if Mr Galuak’s citizenship is revoked, he would by operation of law become the holder of an ex-citizen visa. I note that while the ex-citizen visa will be subject to mandatory cancellation under the Migration Act 1958 due to his current imprisonment, and this would render him liable for removal from Australia, the implications of that process would be considered at the appropriate time.

The Tribunal’s Citizenship Decision

29    Insofar as is presently relevant, the Tribunal reached materially similar conclusions to those that found favour with the Minister: namely, that it would be (or was) contrary to the public interest for the applicant to remain an Australian citizen and that the statutory power to revoke his citizenship should be (or have been) exercised.

30    Again, insofar as concerned the public interest assessment, the Tribunal did not trespass beyond the matters that the applicant advanced in favour of his contention that his retention of Australian citizenship would not be contrary to the public interest.

31    The Tribunal then turned its attention to whether or not the discretion to revoke should be exercised (or affirmed). In the context of its consideration of that issue, the Tribunal noted as follows (at [102]):

The Respondent submitted that Mr Galuak is currently the holder of a non-citizen visa and, if the decision to revoke his citizenship is affirmed, he will be liable to have that visa cancelled under section 501CA of the Migration Act 1958 because of his substantial criminal record and the fact that he was sentenced to a period of imprisonment of more than 12 months. However, persons in this situation have the opportunity to make representations to the Minister who may then be satisfied that a cancellation decision be revoked. It is fruitless for the Tribunal to engage in speculation about what representations Mr Galuak might make, in this eventuality, or what might be the response of the Minister (see the apt remarks of Deputy President Hotop on the futility of the Tribunal speculating in regard to future cancellation of visas in Re Osorio and Minister for Immigration and Citizenship [2007] AATA 59, at [45]). In addition, questions of non-refoulement obligations may be relevant in this context or in any other claim the Applicant may make for protection, but they are not directly relevant here.

The Tribunal’s Non-Revocation Decision

32    It is unnecessary to consider in detail the bases upon which the Tribunal resolved to affirm the decision of the Minister’s delegate not to revoke the Cancellation. The applicant’s challenge to the Tribunal’s Non-Revocation Decision rests solely upon the proposition that the Cancellation itself was a nullity. That, in turn, rests upon two contentions, namely that, at the time of the Cancellation:

(1)    the applicant was an Australian citizen; or, alternatively

(2)    the applicant had not been granted the visa that was purportedly cancelled.

On either basis, the applicant contends that the Migration Act did not confer any power to effect the Cancellation. If that is so, then he submits that neither the Minister (or his delegate) nor the Tribunal possessed any power to consider whether the Cancellation should be revoked under s 501CA of the Migration Act.

The present application

33    By his further amended originating application dated 13 December 2021, the applicant maintains that each of the three decisions summarised above—the Minister’s Citizenship Decision, the Tribunal’s Citizenship Decision and the Tribunal’s Non-Revocation Decision—was a product of jurisdictional error and is, in consequence, liable to a grant of prerogative relief.

34    In the case of the Minister’s Citizenship Decision and the Tribunal’s Citizenship Decision, that error is said to manifest in failures to take account of matters upon the consideration of which it is said that the revocation power conferred by s 34(2) of the Citizenship Act was conditioned.

35    Specifically, the applicant submits that each of the Minister and the Tribunal, when assessing whether it would be contrary to the public interest for the applicant to retain his Australian citizenship, was obliged to but did not consider the legal consequences of revocation. In particular, he maintains that neither considered, in that (public interest) context, the fact that he would, upon revocation, be taken to be the holder of an ex-citizen visa, which would be liable to immediate cancellation; nor that he would thereupon be subjected to immigration detention which, in light of Australia’s obligations of non-refoulement, would or might be prolonged or indefinite.

36    Additionally, the applicant submits that each of the Minister and the Tribunal, when assessing whether, as a matter of discretion, the applicant’s citizenship should be revoked, was obliged to but did not consider the claims that he expressly advanced regarding the unsafe environment that plagues South Sudan and the prospect that he might be subjected to prolonged or indefinite detention.

37    In either respect, the applicant submits that the measures taken by the Minister—and, later, by the Tribunal—to effect (and then affirm) the revocation of his Australian citizenship did not, in reality, do so. As a result, he submits that:

(1)    he remains an Australian citizen;

(2)    he never held the visa that the Minister’s delegate purported to cancel on 30 July 2018;

(3)    the Cancellation was, in consequence, beyond what the Minister’s delegate was authorised to effect and, therefore, was a nullity; and

(4)    there was, in consequence, no valid cancellation in respect of which s 501CA of the Migration Act conferred any power of revocation on either the Minister’s delegate or the Tribunal; and

(5)    the Tribunal’s purported exercise of such a power was, therefore, beyond what the Migration Act authorised and is liable to be set aside as a nullity.

38    On the strength of that reasoning, he seeks:

(1)    orders in the nature of certiorari to set aside each of the Minister’s Citizenship Decision and the Tribunal’s Citizenship Decision (in each case pursuant to s 39B of the Judiciary Act), and the Tribunal’s Non-Revocation Decision (pursuant to s 476A of the Migration Act);

(2)    declaratory relief to record that each of the Minister’s Citizenship Decision, the Tribunal’s Citizenship Decision and the Cancellation was a nullity;

(3)    declaratory relief to record that the Tribunal’s Non-Revocation Decision was beyond what it had jurisdiction to decide;

(4)    declaratory relief to record his retention of Australian citizenship; and

(5)    injunctive relief requiring that he be released from immigration detention.

39    In the alternative—which is to say, in the event that the court does not accept that the measures taken to revoke his citizenship were without legal effect—the applicant submits that the Cancellation nonetheless was not competent to strip him of any visa that he possessed. That, he says, is a consequence of the fact that the Cancellation related to a “Class AQ Subclass 150 Former Citizen” visa. The applicant was never granted any such visa. If the revocation of his citizenship was effective, he instead was deemed to have been granted an ex-citizen visa by reason of s 35 of the Migration Act. That visa, he says, has not been cancelled under s 501(3A) and, hence, remains extant. Thus, he submits that:

(1)    he was never granted the visa that the Minister’s delegate purported to cancel on 30 July 2018;

(2)    the Cancellation was, in consequence, beyond what the Minister’s delegate was authorised to effect and, therefore, was a nullity; and

(3)    there was, in consequence, no valid cancellation in respect of which s 501CA of the Migration Act conferred any power of revocation on either the Minister’s delegate or the Tribunal; and

(4)    the Tribunal’s purported exercise of such a power was, therefore, beyond what the Migration Act authorised and is liable to be set aside as a nullity.

40    On the strength of that reasoning, he seeks:

(1)    declaratory relief to record that the Cancellation was a nullity and that the ex-citizen visa that he in fact held was not cancelled;

(2)    declaratory relief to record that the Tribunal’s Non-Revocation Decision was beyond what it had jurisdiction to decide;

(3)    orders in the nature of certiorari to set aside each of the Cancellation and the Tribunal’s Non-Revocation Decision; and

(4)    injunctive relief requiring that he be released from immigration detention.

41    Both the primary and alternative grounds suggest that the Tribunal’s Non-Revocation Decision is liable to be set aside because the Cancellation was a nullity. They presuppose that the valid exercise of power under s 501CA(4) of the Migration Act is dependent upon the valid exercise of power under s 501(3A). At the time of the hearing, there was reason to doubt the correctness of that proposition but those doubts have since been resolved in a way favourable to the applicant: XJLR v Minister for Immigration Citizenship Migrant Services and Multicultural Affairs [2022] FCAFC 6 [59] (Rares J, with whom Yates J agreed; Snaden J dissenting).

Preliminary observations about relief

42    Four observations might be made at the outset about the relief for which the applicant moves. In light of the conclusions to which I am drawn, nothing turns upon any of them; but I should wish to record them nonetheless.

43    The first concerns the contradiction inherent in the course that the applicant has chosen to pursue. Insofar as concerns the Cancellation, both of the grounds upon which the applicant moves involve, at their core, the suggestion that the Tribunal was not competent to do the very thing that the applicant asked it to do (namely, set the Cancellation aside). In so contending, the applicant quite obviously seeks to enlist the Tribunal’s Non-Revocation Decision as a vehicle through which he might attack the Cancellation. Perhaps that was not always his focus: perhaps he has chosen the path that he has as a matter of statutory expediency; or perhaps it reflects some creative latency on the part of his advisers (I say without criticism of any of them). Regardless, had I been minded to form a different view about the validity of the decisions presently in focus, the means that the applicant has chosen to achieve what he hopes to achieve—and, in particular, the delay that has attended his challenge to the citizenship decisions and the Cancellation—might well have factored as a reason to refuse relief on discretionary grounds. Nothing further need be said on that score.

44    Second, it should be noted that there exists a degree of overlap to the relief that the applicant seeks. For example, the applicant seeks not only relief in the nature of certiorari to quash the various decisions at which he takes aim; but also declaratory relief to record, in the form of binding declarations of right, matters that are necessarily prerequisite to the grant of any prerogative relief that might successfully be claimed. To put it another way: any substantively legitimate claim that he might have to declaratory relief sounds also in an equivalent entitlement to prerogative relief and vice versa.

45    I would not be minded to grant declaratory relief additionally to prerogative relief. That is so for two reasons. First, because the declaratory relief that is claimed does no more than to record some component conclusions that the applicant urges the court to draw. That is not an appropriate deployment of the remedy: Warramunda Village v Pryde (2001) 105 FCR 437, 440 [8] (Gray, Branson and North JJ). Second, it is not apparent to me what utility there might be in granting declaratory relief additional to relief in the nature of certiorari. Declaratory relief should generally not be granted unless doing so visits some consequence: Ainsworth, 582 (Mason CJ, Dawson, Toohey and Gaudron JJ). Here, if the target decisions are set aside as the applicant requests, it is not apparent that any additional benefit will accrue in his favour if the court were also to make the declarations for which he moves.

46    The third observation concerns this court’s jurisdiction to set aside the Cancellation. At least insofar as concerns his alternative ground of attack, the applicant seeks relief in the nature of certiorari directed to that Cancellation decision. This court has no jurisdiction to grant such relief. The Cancellation was not a migration decision of a kind in respect of which s 476A of the Migration Act confers upon this court jurisdiction equivalent to that which s 75(v) of the Commonwealth Constitution confers upon the High Court. Other potential sources of such jurisdiction—for example, s 39B of the Judiciary Act and s 32 of the Federal Court of Australia Act—do not here apply: Migration Act, s 476A(1).

47    Finally, it should be noted that the applicant seeks injunctive relief to secure his release from immigration detention. Again, even were I to accept that the applicant should be granted the prerogative relief for which he moves, it would not follow that he should also be granted injunctive relief. If it should follow, from the setting aside of the decisions that have resulted in his subjection to immigration detention, that the applicant should not be detained, then there is no reason for this court to assume that the Minister (or anybody else) will continue to detain him. In other words—and absent some other reason of which the court is unaware—there is no obvious reason to compel by order that which would surely transpire anyway.

The primary ground

48    The applicant’s primary contention fixes upon the validity of each of the Minister’s Citizenship Decision and the Tribunal’s Citizenship Decision. Each, he says, was made in a manner or manners that the Citizenship Act did not authorise.

49    The errors upon which the applicant fixes were, he says, common to both decisions. Specifically, he contends that both the Minister and the Tribunal erred because:

(1)    each reached a state of satisfaction that it would be contrary to the public interest for the applicant to retain his Australian citizenship—but did so without first taking into account the consequences of its revocation;

(2)    those consequences included that the applicant would become the holder of an ex-citizen visa, which would be immediately liable to cancellation, whereupon he would either be removed from Australia in breach (or potential breach) of international non-refoulement obligations, or otherwise would languish in prolonged or indefinite immigration detention; and

(3)    those consequences (refoulement or detention) were matters of which the Minister and the Tribunal were obliged to take account, either because:

(a)    they were mandatory relevant considerations upon the taking into account of which the lawful assessment of the public interest was conditioned; or because

(b)    the public interest could not reasonably (and, therefore, lawfully) be assessed in the absence of their having done so.

50    Further, the applicant submits that the Minister and the Tribunal both failed properly to consider those same visa cancellation implications—namely, the applicant’s potential removal from Australia in breach of international non-refoulement obligations and his potential exposure to prolonged or indefinite detention—in the context of whether or not, as a matter of discretion, his citizenship ought to be revoked.

51    Resolution of the applicant’s contentions turns upon consideration of four questions, namely:

(1)    were the Minister and the Tribunal obliged, when assessing whether it would be contrary to the public interest for the applicant to remain a citizen, to take account of the potential removal and detention implications to which revocation might lead;

(2)    if they were, did they each discharge that obligation in the making of that assessment;

(3)    were the Minister and the Tribunal obliged, when considering whether the discretion to revoke the applicant’s citizenship should be exercised, to take account of those same implications; and

(4)    if they were, did they discharge that obligation in deciding to exercise the discretion?

52    I shall address each in turn.

Obligation to consider visa cancellation implications when assessing the public interest

53    It should be noted (if not yet clear) that the applicant did not submit, either to the Minister or to the Tribunal, that his potential subjection to prolonged or indefinite detention, or his potential removal from Australia in contravention of non-refoulement obligations were matters that should inform the assessment of whether or not it would be contrary to the public interest for him to retain his Australian citizenship.

54    Instead, the applicant maintains that the Minister and the Tribunal were each obliged to take account of those matters because they were examples of the “legal and practical effects of any decision to revoke [his] citizenship”. It is suggested that the subject matter, scope or purpose of the Citizenship Act (or relevant parts of it) each or in combination require, by implication, that those who are charged with exercising the power of revocation conferred by s 34(2) must, in the course of considering whether it would be contrary to the public interest for a citizen to retain his or her citizenship, first consider the direct legal and practical consequences that revocation will visit. To revoke citizenship without first considering those matters in that context results, it is said, in a decision that the Citizenship Act does not authorise.

55    Analogues of that submission have been the subject of considerable jurisprudence under the Migration Act (and, in particular under ss 501 and 501CA thereof). This court has repeatedly held that administrative decision makers who exercise powers to refuse or cancel visas on character grounds under s 501 of the Act must first consider the legal consequences that arise from their doing so: NBMZ v Minister for Immigration and Border Protection (2014) 220 FCR 1 (Allsop CJ, Buchanan and Katzmann JJ); Cotterill v Minister for Immigration and Border Protection (2016) 240 FCR 29 (North, Kenny and Perry JJ); Taulahi v Minister for Immigration and Border Protection (2016) 246 FCR 146 (Kenny, Flick and Griffiths); Minister for Immigration and Border Protection v BHA17 (2018) 260 FCR 523 (Robertson, Moshinksy and Bromwich JJ); BCR16 v Minister for Immigration and Border Protection (2017) 248 FCR 456 (Bromberg, Davies and Mortimer JJ); DLJ18 v Minister for Home Affairs [2019] FCAFC 236 (Flick, Bromberg and Snaden JJ).

56    Most of those decisions concerned the prospect that a visa holder might, in consequence of the cancellation of his or her visa, be subjected to indefinite or prolonged detention. Although many of the applicants in those matters failed, some did not. It is not difficult, then, to see why or how the applicant might seek to import the point of principle into the realm of citizenship revocation under s 34(2) of the Citizenship Act.

57    There is some (albeit limited) authority supportive of his contention. In Minister for Immigration v Egan (2018) 261 FCR 451, Perram J (with whom Allsop CJ and Jagot J agreed) acknowledged (at 457 [21]) that:

…the direct consequence of a grant of an ex-citizen visa under s 35 of the Migration Act must be taken into account in reaching a state of satisfaction as to whether it would be contrary to the public interest for a person to remain an Australian citizen as prescribed by s 34(2)(c) of the Citizenship Act. It was therefore a mandatory relevant consideration for the Tribunal.

58    The question that arises presently is whether the applicant’s potential subjection to prolonged or indefinite detention, or his potential removal from Australia in breach of non-refoulement obligations—that is to say, the matters that the Minister and the Tribunal are said to have wrongly overlooked when assessing the requirements of the public interest—were matters that might properly be described as “direct consequence[s]” of revocation, of which the subject matter, scope or purpose of the Citizenship Act implicitly required that account be taken (in that public interest context).

59    I do not consider that they were. The direct consequence of the revocation of the applicant’s citizenship in the present matter was that the applicant ceased to remain an Australian citizen. That, of course, was a reality that would visit upon him (or set in train) several other consequences; but none (or, at any event, none of any moment presently) that would arise by reason of the Citizenship Act. It was not explained (and is not apparent) what it is about the subject matter, scope or purpose of the Citizenship Act that requires, by implication, that a decision maker must, when assessing the needs of the public interest under s 34(2), take into account the operation of other statutes.

60    Nonetheless, it is clear from Egan (and, specifically, from the observation reproduced above) that, in considering the requirements of the public interest under s 34(2), decision makers must take account of the fact that, upon revocation, a former citizen will be deemed to hold an ex-citizen visa under s 35 of the Migration Act. That was said to be so because “[t]he two statutes are…something of a binary system operating closely in tandem”: Egan, 457 [21] (Perram J, with whom Allsop CJ and Jagot J agreed). How that reality might be something that informs whether or not it is contrary to the public interest for a person to retain his or her Australian citizenship is not immediately apparent but, regardless, it begs the question: might not the Migration Act visit other consequences of which the subject matter, scope or purpose of the Citizenship Act requires, by implication, that account be taken when assessing the requirements of the public interest under s 34(2)?

61    If there are, I do not consider that the prospect of indefinite detention or removal from Australia in breach (or potential breach) of non-refoulement obligations are amongst them, at least not in the circumstances that this matter presents. The court was not referred to any authority that holds to that effect. Indeed, in Egan, the court expressly declined to determine “…whether the visa cancellation machinery of s 501 of the Migration Act (and the attendant risk of repatriation) was also a mandatory relevant consideration under s 34(2)”.

62    The circumstances that confronted the court in Egan warrant some analysis. There, the Tribunal determined that it was not contrary to the public interest for the applicant—a former priest and convicted paedophile—to retain his Australian citizenship. It was moved so to conclude in part because it was satisfied that he was adequately supported and supervised by superiors within the Catholic church, which support and supervision would be stripped from him in the event that he were removed from Australia. The full court accepted an argument advanced by the Minister on appeal that removal from Australia was not a consequence of the revocation of the applicant’s citizenship. Perram J (with whom Allsop CJ and Jagot J agreed) observed (at 456 [16]):

The consequence for the respondent if his citizenship were revoked was not, as the Tribunal assumed, that he would be repatriated to Ireland, at least not immediately. It was instead twofold: first, he would be immediately taken to have been granted an ex-citizen visa by force of s 35(3) of the Migration Act 1958 (“A person who, on or after 1 September 1994, ceases to be an Australian citizen while in the migration zone is taken to have been granted an ex-citizen visa when that citizenship ceases.”); secondly, he would then be exposed to the possibility that the Minister might exercise a power to cancel that visa on character grounds under s 501(2) or s 501(3) of the Migration Act or, if not cancelled in that way, it might automatically be cancelled under s 501(3A). In some of these cases, there would have been avenues of appeal which might then have been pursued. It was only after these administrative steps had been taken that a decision would then be made as to whether the respondent should be returned to Ireland. It was not legally necessary that the legal machinery of s 501 should be engaged and even if it were engaged it was not a legal certainty that the eventual decision under it would be that the respondent would be removed from Australia.

63    Mention might also be made of Acting Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v CWY20 (2021) ALR 57 (hereafter “CWY20”; Allsop CJ, Kenny, Besanko, Kerr and Charlesworth JJ). In that matter, a full court of this court considered how a Minister might go about assessing the requirements of the “national interest” when exercising the power conferred by s 501A(2) of the Migration Act. That provision concerns the setting aside of decisions that are made favourably to visa applicants or visa holders under s 501 of the Migration Act by delegates of the Minister or by the Tribunal. The Minister may substitute in place of such a decision a determination that is adverse to the relevant visa holder or applicant; but only if (amongst other things) he or she is satisfied that doing so is in the national interest.

64    In CWY20, this court accepted that a Ministerial determination purportedly made under s 501A(2) to refuse the respondent’s visa application was a product of jurisdictional error. That was so because the Minister had purported to assess the “national interest” without taking account of the attendant implications of Australia’s acting in breach of its non-refoulement obligations. Reasoning in that manner was said to be unreasonable (in the sense acknowledged by authorities such as Minister for Immigration and Citizenship v Li (2013) 249 CLR 332, 365 [72] (Hayne, Kiefel and Bell JJ).

65    Of present relevance, the court also considered whether or not Australia’s obligations of non-refoulement amounted to a consideration of which the Migration Act required that account be taken when assessing the “national interest” under s 501A(2). Besanko J (with whom Allsop CJ, Kenny and Charlesworth JJ agreed; Kerr preferring not to express a view) accepted that:

…the implications of Australia breaching its non-refoulement obligations or, more simply, Australia’s non-refoulement obligations, is not a mandatory relevant consideration in the case of the power in s 501A(2) of the Act in the sense of a consideration to be taken into account in every case…

66    If the potential for national misfeasance or embarrassment (in the form of a breach of non-refoulement obligations) that arises directly from the rejection of a visa application is not a matter upon the consideration of which the subject matter, scope or purpose of the Migration Act conditions the exercise of power under s 501A(2), then it is, in my view, quite impossible to see how the subject matter, scope or purpose of the Citizenship Act should, by implication, require that it be considered in the far less direct atmosphere of citizenship revocation.

67    Whatever the subject matter, scope or purpose of the Citizenship Act might, by implication, require that a decision maker take into account when assessing what the public interest favours under s 34(2), it does not require the consideration of matters that are hypothetical or arise contingently upon other discretionary excursions under the Migration Act. Here, what the future holds in store for the applicant depends upon multiple variables. His potential removal from Australia in breach of non-refoulement obligations presupposes that he will be removed to South Sudan. Perhaps he will; perhaps not. Perhaps he will apply for and be granted a protection visa. Perhaps some other country will accept him. Perhaps he will be removed consistently with Australia’s obligations and within a timeframe that does not involve prolonged or indefinite detention (howsoever described).

68    Such speculation is best avoided: the point remains, the consequences that the applicant submits went wrongly unconsidered when the Minister—and, later, the Tribunal—here assessed the requirements of the public interest under s 34(2) of the Citizenship Act were not direct legal consequences of the revocation of his citizenship. To the extent that those outcomes might arise at all, they will arise remotely, or as hypothetical or contingent sequels to other processes: Kassem v Minister for Home Affairs (2019) 271 FCR 1, 16 [74] (Stewart J). There is nothing about the subject matter, scope or purpose of the Citizenship Act that requires a decision maker to take account of such matters when assessing the public interest under s 34(2). Future exercises of discretion and statutory power “…are to be resolved when they arise”: Ayoub v Minister for Immigration and Border Protection (2015) 231 FCR 513, 519 [19] (Flick, Griffiths and Perry JJ); see also (to similar effect, albeit in different statutory contexts) the authorities summarised in DFTD v Minister for Home Affairs [2020] FCA 859, [43]-[51] (Snaden J).

69    I should return to the applicant’s suggestion that the Minister’s—and, later, the Tribunal’s—assessment of the public interest was not lawfully formed because it was unreasonable (in a sense that the authorities recognise as sufficient to constitute jurisdictional error). That contention was advanced in passing during the applicant’s oral submissions, primarily on the strength of the full court’s conclusion in CWY20. Although advanced at a headline level, it was not otherwise developed.

70    It can be swiftly addressed. There was, in the present matter, nothing unreasonable or illogical (in degrees sufficient to sound in jurisdictional error) in the Minister (and, later, the Tribunal) assessing the requirements of the public interest under s 34(2) of the Citizenship Act without first taking account of the possibility that revocation might commence a process that culminates in the applicant’s being subjected to prolonged or indefinite detention, or being removed from Australia in breach of non-refoulement obligations. The possibility that consequences of those kinds might be realised at some point in the future after other statutory processes are played out is not a matter of such obvious centrality to whether or not the public interest warrants citizenship revocation that an assessment on that score could not reasonably be made without first considering it. It is not unreasonable or illogical (in the requisite senses) for a decision maker to make such an assessment without engaging in the kinds of speculation that the applicant’s contention inherently contemplates: see (albeit in a different context) MNLR v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2021) FCR 525, 556 [150] (SC Derrington J, with whom Perram J agreed; Wigney J agreeing in the result). CWY20—which involved very different facts and a very different statutory landscape—is no authority to the contrary.

71    It follows that the answer to the first of the four questions upon which the applicant’s first ground of challenge is to be resolved (above, [51]) is “no”.

Were those matters considered?

72    Having concluded that neither of the Minister nor the Tribunal was obliged, when assessing the public interest under s 34(2) of the Citizenship Act, to consider potential detention or refoulement implications, it is not necessary to consider whether either, in fact, did so. Nonetheless, the following observations might be noted.

73    First, there can be no doubt that each of the Minister and the Tribunal correctly appreciated that revocation of the applicant’s citizenship would (or, as was the case at the point that the matter came before the Tribunal, did) result in his being deemed to hold an ex-citizen visa under the Migration Act. Both the Minister’s Citizenship Decision and the Tribunal’s Citizenship Decision recorded observations to that effect. That they did so only in the context of whether or not the discretion to revoke should be exercised is of no moment. It cannot properly be inferred that either decision involved an assessment as to what the public interest required that proceeded absent some consciousness that revocation would (or did) have that effect.

74    Second, there is likewise no doubt that each of the Minister and the Tribunal appreciated that there might be consequences for the applicant arising from the cancellation of the visa that he would be (or was) deemed to hold following the revocation of his citizenship. Again, both decisions expressly adverted to that reality (see above, [28], [31]).

75    Inherent in the applicant’s contention is the idea that both decision makers (the Minister and the Tribunal), although plainly conscious of what the applicant had advanced, nonetheless confined their consideration of it to only one aspect of their decision (namely, whether or not the discretion to revoke should be exercised) and somehow excised it from their minds when considering others (including the requirements of the public interest). In the absence of needing to, I shall refrain from drawing any conclusions regarding that contention; but the following observations are apposite.

76    Whether a decision maker had regard to a particular consideration in the course of making a particular decision is a question of fact. It is usually (if not inevitably) resolved as a matter of inference, typically on the strength of the reasons that are given in support of the decision in question. An inference that a decision maker has failed to consider an issue is one that should not too readily be drawn in circumstances where the reasons for a given decision are comprehensive and the issue has at least been identified at some point: Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 236 FCR 593, 604 [47] (French, Sackville and Hely JJ). The court requires clear evidence before such an inference might be drawn and it is the applicant who bears the evidential onus: Carrascalao v Minister for Immigration and Border Protection (2017) 252 FCR 352, 364 [48] (Griffiths, White and Bromwich JJ).

77    Here, neither citizenship decision contained, within the analysis of what the public interest required, any reference to the potential consequences for the applicant of visa cancellation. That is undoubtedly a circumstance from which the court might infer that those consequences went unconsidered in that context. It could, of course, reflect a view that they were not material considerations and, hence, did not warrant specific mention (which would be an alternative inference to which the court might be drawn). Given that the reasons published in support of both decisions elsewhere referenced visa cancellation consequences, I would (had I needed to consider the question more closely than I do) have been slow to draw the former inference.

Obligation to consider visa cancellation implications in the context of discretion

78    The applicant submits that the Minister and the Tribunal, when considering whether or not to exercise the discretion to revoke his citizenship under s 34 of the Citizenship Act, were each required to consider the implications of any subsequent cancellation of the visa that he would thereafter be deemed to hold under s 35 of the Migration Act. That obligation was said to arise in either or both of two ways: first, because those implications were consequences of revocation upon the consideration of which the subject matter, scope or purpose of the Citizenship Act required, by implication, that account be taken; or, second, because the applicant identified them as reasons that should incline against the exercise of the discretion.

79    I have already addressed the first aspect of that contention (albeit in the context of assessing the requirements of the public interest under s 34(2)(c) of the Citizenship Act, rather than the broader discretion to revoke). For reasons equivalent to those explored above (in that public interest context), there is nothing about the subject matter, scope or purpose of the Citizenship Act that implicitly requires decision makers to consider, before exercising the discretion conferred by s 34(2), the potential implications of visa cancellation.

80    Such an obligation does, however, arise insofar as those implications are expressly advanced as matters that should inform the exercise of the discretion. That proposition was not obviously in contest and I would, in any event, readily accept it.

81    To what extent, then, did the applicant here nominate the potential implications of visa cancellation as matters that should inform the Minister’s—and, later, the Tribunal’s—discretion to revoke his citizenship?

82    The submissions that the applicant advanced in opposition to the revocation of his citizenship have already been summarised (above, [24]). By way of elaboration, two matters should be highlighted. First, the applicant put squarely the prospect that, if his citizenship were revoked, the ex-citizen visa that he would thereupon be deemed to hold would be liable to immediate cancellation, in consequence of which he would then be subject to immigration detention. Second, the applicant did not suggest—either before the Minister or the Tribunal—that he would be returned to South Sudan in breach of Australia’s obligations of non-refoulement. On the contrary, although he alluded to the dangers that might attend his return, he nonetheless submitted that no such removal would take place and that, consequently, his detention would be “indefinite”. He made no mention of the possibility that his return to South Sudan would offend Australia’s obligations of non-refoulement.

83    Both the Minister and the Tribunal were obliged to consider the applicant’s submission before deciding whether or not to exercise the power of revocation under s 34(2) of the Citizenship Act. Until recently, doing so required that the contentions that were advanced be subjected to an “active intellectual process”: see, for example, Ali v Minister for Home Affairs (2020) 278 FCR 627, 643 [45] (Collier, Reeves and Derrington JJ). Although not rejected, that nomenclature has not attracted itself to the High Court: Plaintiff M1/2021 v Minister for Home Affairs (2022) 400 ALR 417, 509 [26] (hereafter, “Plaintiff M1”; Kiefel CJ, Keane, Gordon and Steward JJ). Instead, it is said (at least in the context of non-revocation decisions under s 501CA of the Migration Act) that decision makers must:

…read, identify, understand and evaluate [such] representations [as are advanced]. Adopting and adapting what Kiefel J (as her Honour then was) said in Tickner v Chapman, the decision-maker must have regard to what is said in the representations, bring their mind to bear upon the facts stated in them and the arguments or opinions put forward, and appreciate who is making them. From that point, the decision‑maker might sift them, attributing whatever weight or persuasive quality is thought appropriate. The weight to be afforded to the representations is a matter for the decision-maker. And the decision-maker is not obliged "to make actual findings of fact as an adjudication of all material claims" made by a former visa holder.

(Plaintiff M1, [24] (Kiefel CJ, Keane, Gordon and Steward JJ), references omitted).

Were the cancellation implications considered?

84    The applicant complains that, when considering whether or not his citizenship ought to be (or to have been) revoked, neither the Minister nor the Tribunal addressed what he had submitted about his potential subjection to prolonged or indefinite detention.

85    Insofar as concerns the Minister’s Citizenship Decision, the applicant’s complaint is that the Minister “expressly avoided” any consideration of what had been advanced. Instead, the Minister was apparently content not to address the implications that might attach to the cancellation of an ex-citizen visa (and the applicant’s resultant liability to removal from Australia) on the basis that “…the implications of that process would be considered at the appropriate time”.

86    A similar criticism is levelled at the Tribunal. The applicant maintains that it “expressly evaded” any consideration of the implications that a visa cancellation process might visit upon him.

87    Inherent in the applicant’s contention is the notion that the Minister and the Tribunal were each obliged to form views as to whether or not the implications to which he had adverted would in fact arise in the event that he were subjected to the process of visa cancellation; and, to the extent that they would, to form a view as to whether or not they should sound as reasons not to exercise the discretion that s 34(2) of the Citizenship Act conferred. In other words, his contention proceeds upon the assumption that the Minister and the Tribunal were obliged either to agree or disagree with what he had advanced.

88    Respectfully, that submission must be rejected. Consideration of what the applicant had advanced did not require that any such views be arrived at. It was open both to the Minister and, later, to the Tribunal to resolve that the implications of visa cancellation, whatever they might be, were not matters that should bear upon the exercise of their discretion under the Citizenship Act. It was open to the Minister and the Tribunal to proceed on the basis that those implications “…could be assessed to an extent and in a manner that they considered appropriate and sufficient to deal with the claim, namely in accordance with the specific mechanism chosen by Parliament…”: Plaintiff M1, 430 [38]. In the present case, that mechanism is provided for by the Migration Act (at least by s 501CA, and more broadly by the possibility that the applicant might apply for and be granted a protection visa).

89    That is what both the Minister and the Tribunal appear here to have done. At the very least, no inference can properly be drawn to the contrary (as the applicant’s success on this contention necessarily requires). Rather than make assessments of their own as to the veracity and significance of what the applicant had put to them (specifically regarding his fears about indefinite detention and the dangers of returning to South Sudan), the Minister and the Tribunal preferred instead to allow those analyses to be deferred until such time as they might arise for consideration under other—and, arguably, more tailored—statutory processes. Doing so did not involve any failure to consider that which the applicant had advanced.

Conclusions

90    For the purposes of forming a view as to the requirements of the public interest under s 34(2) of the Citizenship Act, neither the Minister nor the Tribunal was here obliged to consider the implications that visa cancellation under the Migration Act might later visit upon the applicant in the event that his citizenship was revoked. Those implications were not advanced as matters that should have informed that assessment; and consideration of them was not required by implication in consequence of the subject matter, scope or purpose of the Citizenship Act.

91    It follows that the states of satisfaction that the Minister and the Tribunal formed under s 34(2)(c) of the Citizenship Act were not formed unlawfully as the applicant alleges.

92    To the extent that the implications (or potential implications) of visa cancellation under the Migration Act were expressly advanced as reasons why the applicant’s citizenship shouldn’t be revoked, both the Minister and the Tribunal were obliged to consider them. Doing so did not require the making or recording of any findings. It was open to each to consider, as they apparently did, that there are processes available to the applicant under the Migration Act that might be employed to address the concerns to which he adverted. In so reasoning, each must be understood to have considered—or to have read, identified, understood and evaluated—what the applicant had advanced.

93    It follows that neither of the Minister’s Citizenship Decision nor the Tribunal’s Citizenship decision was attended by jurisdictional error as alleged. The former validly revoked the applicant’s Australian citizenship and the latter validly affirmed that revocation. The Cancellation cannot be impugned on account of any invalidity inherent in that revocation process; and, as a result, nor can the Tribunal’s Non-Revocation Decision. None of the species of relief for which the applicant moved in reliance upon the contrary premises (above, [38]) should be granted.

The alternative ground

94    Regardless of whether his citizenship was validly revoked, the applicant maintains that the Tribunal’s Non-Revocation Decision is nonetheless liable to prerogative relief because the Cancellation to which it relates was a nullity. That, he says, arises in consequence of the fact that the Cancellation pertained to a visa that, in fact, he did not possess.

95    Two aspects of that challenge are not disputed. The first is that the written notice by which the applicant was informed of the Cancellation referred to the cancellation of a “Class AQ Subclass 150 Former Citizen” visa. The second is that the applicant did not possess (and has never possessed) any such visa.

96    That second reality warrants further attention. Class AQ visas were abolished with effect from 1 July 2000. How it is that the Minister’s delegate came to think, at the time of the Cancellation—some 18 years later—that that was the species of visa that the applicant held is not clear.

97    Regardless, the question that now arises is whether or not the Cancellation had the effect of cancelling the ex-citizen visa that the applicant in fact was deemed to have been granted after his Australian citizenship was revoked. The applicant maintains that it did not.

98    To that end, he relies upon the observations of the full court in Minister for Immigration v Schwart [2003] FCAFC 229 (“Schwart”; Tamberlin, Mansfield and Emmett JJ). That case involved a decision to cancel a temporary visa under s 501(2) of the Migration Act. In reality, however, the respondent was the holder of a different, permanent visa. The cancellation was set aside and the full court dismissed the Minister’s appeal from that decision. In doing so, it made the following observations (at [15], [29], [31]-[33]):

…The effect of the [Migration] Act and the Regulations [made thereunder] is that the Minister must understand the nature and consequence of any decision that he is asked to make. That understanding is a jurisdictional fact…

…

The short question that arises on the hearing of the appeal is whether, by signing the Decision Page and dating it ‘5.2.03’, the Minister cancelled the only visa held by the respondent, being the visa that continued in effect by the operation of reg 4(1) of the Transitional Regulations as a transitional (permanent) visa or whether, on its proper construction, it purported to do no more than cancel a ‘Subclass 155 – 5 Year Resident Return Visa’. If, on its proper construction, the only effect of signing the Decision Page was to cancel a Subclass 155 – 5 Year Resident Return Visa, the decision had no effect, because the respondent was not the holder of such a visa.

…

…The Decision Page does not purport to cancel a residence visa category K1412. It does not purport to cancel anything other than a ‘Subclass 155 – 5 Year Resident Return Visa’. The respondent was never the holder of such a visa. The Memorandum purports to cancel a visa that did not exist. The Minister’s purported decision was a nullity.

The result may appear to be a technical one. However, the material before the Court is an unfortunate example of sloppiness on the part of Commonwealth administrators. Where the entitlement of an individual to remain in Australia is in issue in the making of a decision, the Australian community is entitled to expect that the documentation in relation to the making of such a significant decision is prepared with care. The material in question has not been prepared with care.

It is not possible to be certain that the Minister understood, when signing the Decision Page, what he was doing. It may well be that he was well aware that the respondent had been resident in Australia for eighteen years and had, under the terms of a visa held by him, a right of indefinite residence. However, at no stage does the Memorandum refer to a ‘transitional (permanent) visa’ that the respondent is deemed to hold pursuant to reg 4(1) of the Transitional Regulations. If the Minister exercises the important discretionary power conferred by s 501, there should be no doubt that that is what he is doing.

99    A similar conclusion was reached in Sales v Minister for Immigration and Citizenship (2008) 171 FCR 739 (“Sales”; Gyles, Graham and Buchanan JJ). There, the Minister purported to cancel a transitional (permanent) visa. The respondent, in truth, held a different species of visa. Buchanan J (with whom, on this point, Gyles and Graham JJ agreed) observed as follows (at 75-76 [96]):

The Minister argued that any mistake made in cancelling, or purporting to cancel the transitional (permanent) visa which Mr Sales was thought to hold, rather than the absorbed person visa, should be disregarded. I do not accept that the matter may be approached in this way. The Minister’s attention was directed specifically and in unmistakeably clear terms to the proposal that a transitional (permanent) visa should be cancelled with the “automatic” result that an absorbed person visa would also be cancelled; not by decision of the Minister, but rather by operation of s 501F of the current Act. It is not clear why, on the second occasion when it was proposed to take action against Mr Sales, attention was focused on a transitional (permanent) visa when on the first occasion it was focused on the absorbed person visa. It appears that the officers of the Minister’s Department responsible for preparing the advice to him misunderstood the character and intended effect of the earlier decision and of Allsop J’s judgment setting it aside. Be that as it may, a choice was made. The choice may have been mistaken but it does not represent a mistake of the kind upon which the Minister sought, if necessary, to rely. As Mr Sales held no transitional (permanent) visa the decision purporting to cancel such a visa was of no legal effect…

100    Both of Schwart and Sales involved discretionary cancellations effected under s 501(2) of the Migration Act. Nonetheless, equivalent reasoning has been applied in the context of mandatory cancellation under s 501(3A). In Anderson v Assistant Minister for Immigration [2018] FCA 888 (Reeves J), the Minister purported to cancel a species of visa that the applicant, in fact, had not been granted. More than 18 months later, a separate decision was made under s 501(3A) to mandatorily cancel the visa that he had, in fact, been granted. Mr Anderson contended that the Minister was not empowered to make the second decision because the effect of the first was that the visa that he in fact had been granted was also cancelled and, therefore, was no longer extant. That was said to be the result of s 501F of the Migration Act, which provides (amongst other things) that the cancellation of a person’s visa under s 501 is apt also to cancel any other visa that the person has been granted.

101    The Minister there sought to meet that submission by advancing precisely the contention that the applicant in this matter now advances: namely, that the first cancellation decision was a nullity because it had sought to cancel a visa that had not, in truth, been granted. Reeves J accepted that contention. His Honour observed (at [44]):

In this matter, it is clear from the [first cancellation] letter dated 5 January 2015 that the [first cancellation] decision was directed to a Class BF transitional (permanent) visa, and only that visa. As has been explained above, Mr Anderson was never the holder of such a visa. It necessarily follows that, in making the 17 December 2014 decision, the Minister or his delegate purported to cancel a visa that did not exist. That being so, applying Schwart, I consider I am bound to hold that the [first cancellation] decision was a nullity.

102    More recently, the Federal Circuit Court of Australia (as it then was) applied the rationale that emerges from Schwart and Anderson in circumstances that are materially identical to those that arise presently: EUF20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCCA 436 (Judge Driver).

103    Two points of principle emerge from the authorities just summarised. The first is hardly profound: namely, that s 501(3A) of the Migration Act does not authorise decisions to cancel visas that have not been granted. If that is what, in fact, the Minister’s delegate here decided to do, then there is little doubt that the Cancellation was beyond the authority that s 501(3A) of the Migration Act conferred. Whether or not it should be understood to be a product of jurisdictional error would, in that scenario, turn upon whether or not the error that was made was material.

104    The second concerns the extent to which this court now is bound (or otherwise or further bound) by what emerges from the authorities summarised above. Plainly, the central point of legal principle—that the Migration Act does not permit the cancellation of visas that haven’t been granted—is binding. But whether or not the facts of the present matter accumulate to require the same outcome is another question. In that respect, it bears noting that Schwart and Sales involved the purported exercise of a different statutory power (namely, s 501(2) of the Migration Act). Unlike s 501(3A), that section contemplates visa cancellation as an exercise of discretion, which is informed (or capable of being informed) by a knowledge or understanding of the nature of that which might be cancelled. Anderson involved the mandatory cancellation of a visa; but not one that was deemed to have been granted in consequence of citizenship revocation (which, for reasons to which I shall shortly return, is a matter of some significance).

105    EUF20, of course, is not binding upon this court; although, respectfully, it is well-reasoned and persuasive. However, for the reasons that follow, I am not drawn to an equivalent conclusion in the present circumstances.

106    It determining whether or not the Minister’s delegate was authorised to make the decision that was made, it is crucial first to assess what it was that was, in fact, decided—that is to say, what judgment formed in his or her mind. In this matter (as with most), that falls to be done by drawing inferences from the available evidence. Here, the most obvious source of information from which such inferences might be drawn is the correspondence that the applicant received on 30 July 2018 informing him of the Cancellation.

107    It is convenient to replicate the first paragraph of that correspondence:

Purpose of this notice     You were granted a Class AQ Subclass 150 Former Citizen visa on 22 June 2017 (your visa). The purpose of this notice is to advise you that on 30 July 2018 your visa was cancelled under s501(3A) of the Migration Act 1958 (‘the Act’).

108    The correspondence of 30 July 2018 extended over four pages (plus some enclosures). The only reference to the applicant having been granted a “Class AQ” visa was the one that appears in the opening sentence. Thereafter, the correspondence made numerous references to “your visa”—including as to its having been cancelled and to the measures of which the applicant might avail himself in an effort to have that cancellation revoked.

109    The reference in that opening sentence to the applicant having been “granted” a visa “on 22 June 2017” is instructive. It is to be recalled that that was the date of the Minister’s Citizenship Decision (and, therefore, the date on which the applicant’s Australian citizenship ceased). By operation of s 35(3) of the Migration Act, the applicant was deemed to have been granted an ex-citizen visa on that date.

110    Also instructive is a passage that appears on the second page of the 30 July 2018 correspondence under the hearing “Your visa status”. There, the Minister’s delegate recorded:

Your visa has been cancelled and you no longer hold a visa…

111    Three observations emerge. First, it is clear that the delegate’s decision was to cancel the visa that was granted to the applicant on 22 June 2017. Second, the delegate appears correctly to have understood that that was the only visa that had been granted to the applicant. Third, it is apparent that the delegate understood that the visa that had been granted to the applicant had been granted in consequence of his loss of citizenship. That third reality is clear both from the erroneous reference to his having been granted a “Class AQ” visa and the reference to the date on which that occurred (which plainly could not have been a matter of coincidence).

112    That the delegate went on, in the correspondence of 30 July 2018, to wrongly identify the species of visa so granted is, of course, a further relevant circumstance. Nonetheless, looking at the circumstances as a whole, I consider that it is clear that the decision that the delegate in fact made (and later, by the correspondence of 30 July 2018, sought to communicate) was to cancel the visa that was granted to the applicant on 22 June 2017 in consequence of the revocation of his Australian citizenship. Notwithstanding what appears at the commencement of that correspondence, it cannot safely be inferred that the delegate in fact made a decision to cancel a species of visa that hadn’t existed for the best part of two decades.

113    Having said that, it is clear that the misdescription of the applicant’s visa in that correspondence is regrettable. Plainly, it would have been better for the delegate to identify accurately in that notice the visa that he or she had decided to cancel. Perhaps the failure to do so involved “…an unfortunate example of sloppiness on the part of Commonwealth administrators”: Schwart, [32] (Tamberlin, Mansfield and Emmett JJ).

114    However, the court is not “astute to discern error”: Plaintiff M64/2015 v Minister for Immigration and Border Protection (2015) 258 CLR 173, 185 [25] (French CJ, Bell, Keane and Gordon JJ). Leaving aside notions of legal unreasonableness (which do not here arise), it is not the role of the court on judicial review to critique the reasons that have been given in support of a challenged decision (or, as in this case, the written notice by which it was communicated). Judicial review of administrative action is confined to the legality of decision making. It does not turn upon the skill or precision with which such decisions are communicated. Labels like “regrettable” and “sloppy” rarely assist with the endeavour.

115    In any event, the authorities acknowledge that administrative decision makers are fallible and that errors contained within written reasons or correspondence advanced to justify or communicate a given decision will not always marry seamlessly with what was, in fact, decided. A good example is the decision of this court in Johnson v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 136 FCR 494 (French J). There, the court considered a decision to cancel a visa that had been granted to the applicant, Mr Silas Timothy Johnson. That decision was made by the Minister upon consideration of a briefing paper prepared by officials within his department. That paper identified the visa holder as “Silas Tinessy Johnson”. Mr Johnson submitted that the Minister had, in fact, cancelled (or purported to cancel) a visa granted to somebody other than him. That ambitious submission failed. The court concluded (at 505, [26]-[27]) that it was clear from context that the cancellation pertained to him, notwithstanding the error of identification.

116    Jones v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 141 FCR 261 (R D Nicholson J) is similarly instructive. There, the Minister purported to cancel the applicant’s “BF-C (permanent)” visa under s 501(2) of the Migration Act. As with Mr Johnson’s case, Ms Jones’s visa had been so described in an issues paper prepared for the Minister by his department. As in this case, it was misdescribed: Ms Jones was, in fact, the holder of a “BF (permanent)” visa. She sought to establish—much as the applicant in this matter does—that the visa that she in fact held had not been cancelled. She, too, was unsuccessful: after referring to Schwart, the court concluded (at 272 [44]) that it could not “…be safely inferred the respondent [Minister] did not know what he was doing…”

117    Here, it is quite plain that the Minister’s delegate knew exactly what he or she was doing: namely, cancelling the visa that the applicant was granted on 22 June 2017 in consequence of the loss of his citizenship. That is what s 501(3A) of the Migration Act required. That the transaction was blotted by misdescription in the notice of 30 July 2018 is of no moment, at least not insofar as concerns its legality. The delegate’s decision was not attended by jurisdictional error.

118    Having so concluded, it is not necessary that I should address the alternative submission that the Minister advanced regarding materiality. Nonetheless, I would make this observation: if, contrary to what I have concluded above, the Minister’s delegate in fact decided to cancel a visa that the applicant had not been granted—and if, as a result, that decision should (as plainly it should) be considered a nullity or beyond what s 501(3A) authorised—then I would be slow to conclude that the error so committed was immaterial in the sense recognised by authorities such as Hossain v Minister for Immigration and Border Protection (2018) 264 CLR 123 and Minister for Immigration and Border Protection v SZMTA (2019) 264 CLR 421.

119    The Minister’s materiality submission is easy enough to follow. He says that, had the delegate (in the hypothetical scenario described above) properly understood what visa had, in fact, been granted, precisely the same outcome would have ensued: namely, it would have been mandatorily cancelled and the applicant would have found himself in precisely the position in which he now finds himself. As much may be accepted. Nonetheless, as I apprehend the state of the authorities, materiality turns upon the prospect that an administrative decision maker might, but for an identified error, have been led to make a different decision. Here, there would almost certainly have been a different decision. Rather than cancelling a visa that the applicant had not been granted, the delegate would have proceeded to cancel one that had been. That very similar practical consequences would then ensue does not appear to factor as a matter that informs the court’s assessment of materiality. For obvious reasons, though, nothing more need be said about that subject.

120    I do not accept that the Cancellation was a product of jurisdictional error as alleged. Because I am drawn so to conclude, I do not accept that the Tribunal’s Non-Revocation Decision was beyond the jurisdiction that was conferred upon it by s 501CA(4) of the Migration Act (or, more accurately, s 500(1)(ba)). None of the relief to which the applicant lays claim under his alternative ground of challenge should be granted.

Conclusion

121    Neither of the grounds that the applicant here prosecutes can succeed. The applicant’s further amended originating application dated 13 December 2021 must (and will) be dismissed. The applicant should pay the Minister’s costs.

Associate:

Dated:    14 July 2022