Federal Court of Australia

Abuuh v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 1492

ORDERS

THE COURT ORDERS THAT:

1.    The appeal is dismissed.

2.    The applicant is to pay the Minister’s costs.

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

REASONS FOR JUDGMENT

(Delivered ex tempore, revised from transcript)

McELWAINE J:

1    I delivered ex tempore reasons in this matter on 22 November 2023. What follows is an edited and settled version of my reasons.

2    Mr Rashid Mohamud Abuuh seeks to appeal a decision made by the Administrative Appeals Tribunal on 9 May 2023, the effect of which was to affirm an anterior decision made by the first respondent Minister to revoke the applicant’s Australian citizenship: Abuuh v Minister for Immigration, Citizenship and Multicultural Affairs [2023] AATA 1091 (TD). When the matter was called on this morning, and in response to questions from me about Mr Abuuh’s lack of legal representation, there was ultimately formulated an oral application for an adjournment, which application I refused for the reasons that I then gave.

3    The applicant has demonstrated before me a relatively good understanding of the English language, even though he has told me on a number of occasions that English is his third language. His written and oral comprehension has been entirely satisfactory. He has not, therefore, been disadvantaged by the fact that English is not his first language.

4    The applicant was born in 1993. A contestable question before the Tribunal was whether he was born in Somalia, or whether there was sufficient doubt to the effect that it was uncertain as to where he was born.

5    His position in relation to that question has shifted somewhat in the oral submissions that he put to me. He now contends that the likelihood is that he was born in Saudi Arabia. That question as then formulated before the Tribunal was determined adversely to the applicant, because the overwhelming evidence was to the effect that he was born in Somalia.

6    That question was a live one before the Tribunal because of a provision which is to be found at s 34 of the Australian Citizenship Act 2007 (Cth) (the Act), which confers power upon the Minister, by writing, to revoke a person’s Australian citizenship if certain criteria are met and if, amongst other things the following applies (at subs 2(b)(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)

7    There was no dispute before the Tribunal and there is no contention before me that the applicant has been convicted of serious offences.

8    This power is subject to s 34(3) which provides that the Minister must not decide to revoke a person’s Australian citizenship if the revocation is because of, or only because of, subsection (2)(b)(ii) in circumstances where:

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.

9    On 13 August 2009, the applicant, then aged 16, arrived in Australia with his mother and his two younger sisters. Regrettably, since from around 9 February 2013, the applicant has engaged in repeated criminal offending for which he has been convicted and sentenced. His criminal history records 18 separate offences, commencing on 9 February 2013 and ending on 12 December 2017. There are three convictions that were of considerable concern to the Tribunal when considering the question of public interest, which is a specific requirement of s 34(2)(c), which provides that the citizenship may only be revoked if the Minister is satisfied that it would be “contrary to the public interest for the person to remain an Australian citizen”.

10    The three serious offences were each committed on 12 March 2016, when the applicant engaged in, and was subsequently convicted of, sexual intercourse without consent in company with others, sexual assault in the third degree in company with others, and sexual intercourse without consent. The applicant was sentenced in the Supreme Court of the Australian Capital Territory on 12 December 2017, following a trial before a jury at which the applicant pleaded not guilty and was sentenced to imprisonment with, relevantly, a head sentence of 3 years and 18 months, with a proviso that the applicant was eligible for parole after a stipulated period.

11    On 8 April 2016, that is, shortly after the commission of the acts that I will describe as the sexual offences, the applicant applied for Australian citizenship by conferral. He did not, at that time, disclose the circumstances of the sexual offences in his application, although, in his favour, the Tribunal was unable to make a finding as to when the prosecution process was first commenced and at least gave the applicant the benefit of the doubt that, as at that date, he might not have been, technically at least, aware of the fact that he had been charged with the sexual offences.

12    On 2 June 2016, the applicant was conferred with Australian citizenship. On 17 September 2021, the Minister decided to revoke the applicant’s citizenship pursuant to s 34(2) of the Act. The applicant was provided with reasons for the making of that decision.

13    In summary, the Minister determined to exercise the power because the applicant had, at a time after the making of his application for citizenship, been convicted of a serious offence. There was no dispute before the Tribunal, and there is no dispute before me, that the sexual offences were serious offences within the meaning of s 34(5). And further, the Minister was satisfied that it would be contrary to the public interest for the applicant to remain an Australian citizen. The Minister was also not satisfied that the applicant, by reason of the revocation, would become a person who is not a national or citizen of any country within the meaning of s 34(3).

14    A consequence of the making of that decision by the Minister was that the applicant was statutorily deemed to be the holder of an ex-citizen visa, pursuant to s 35 of the Migration Act 1958 (Cth). Following the making of the Minister’s decision, the applicant applied for merits review to the Tribunal on 12 October 2021. On 13 February 2023, the Tribunal conducted a one-day hearing, at which it received, amongst other things, evidence from the applicant, who was then represented by counsel.

15    I record that it was not in dispute before the Tribunal that, first, the applicant had obtained citizenship by conferral, and second, as I have noted, the sexual offences were serious offences within the meaning of s 34(2) and (5) of the Act. What was in issue before the Tribunal was whether the revocation of the applicant’s citizenship was in the public interest within the meaning of s 34(2)(c), and, if so, whether the discretion should be exercised, as well as whether s 34(3) of the Act applied: i.e. the revocation was prohibited by the circumstance that the applicant would not be a national or citizen of any country.

16    On 9 May 2023, the Tribunal delivered its decision in writing and decided each issue adversely to the applicant. I note the following presently relevant reasoning of the Tribunal. First, at TD [3], where the Tribunal correctly stated the effect of the statutory power to be exercised at s 34(2) of the Act. Next at TD [5], which by way of summary the Tribunal said:

The Applicant’s conduct prior to and since obtaining citizenship speaks to his character and to the risk of harm he poses to the Australian community. Both are key to whether it would be contrary to the public interest for him to remain a citizen. In addition to the robbery and rapes, which I shall refer to the as the index offending, the Applicant committed several driving offences.

17    I pause there to note that part of the sexual offences also involved a robbery from the sex worker who was subjected to the rape.

18    Next, at TD [6] through to and including TD [35], one sees in the Tribunal’s reasons a very comprehensive summary of the applicant’s criminal history, with emphasis on the sexual offences at TD [17] to TD [34].

19    What is clear from that component of the reasons is that the Tribunal placed particular emphasis on the seriousness of, and the circumstances in which, the sexual offences were committed by the applicant, in company with at least two others, together with his false denials of involvement in that joint enterprise, firstly, to the police, and secondly, which he maintained upon the conduct of his criminal trial before the Supreme Court of the Australian Capital Territory. I do not, in these reasons, describe that offending other than to say that it was abhorrent and violent.

20    At TD [36], the Tribunal recorded that on 8 April 2016, that is, less than four weeks after committing the sexual offences, the applicant lodged his application for Australian citizenship by conferral. The Tribunal noted that s 21 of the Act sets out the eligibility criteria, including an obligation on the applicant to satisfy the Minister, or a delegate of the Minister, that he was of good character. At TD [37], the Tribunal noted and found that the application form required the applicant to disclose whether he had been convicted of or found guilty of any offences, including traffic offences which went to court. He ticked that answer “yes”.

21    The form also required all relevant details, including the nature of the offence, full details of the sentence and dates of any period of imprisonment or other detention, to which the applicant merely wrote “traffic offence” in the singular. That was false. The applicant has many recorded convictions prior to that date for motor vehicle and traffic offences. The Tribunal further observed and found that the form asked whether he had any charges pending, to which he answered “no”. The Tribunal stated:

…At that time, the police had commenced the process of prosecuting him for the four traffic offences committed in November/December 2015 and March 2016 but it is not apparent from the material before me when they charged the Applicant.

22    Had there been any charges pending against the applicant, it would have constituted a breach of s 24(6) of the Act for his application to have been approved. At TD [40], the Tribunal concluded that:

The circumstances of the Applicant’s application for citizenship strongly suggest that he was substantially motivated to apply for citizenship to ensure he could continue to live in the Australian community despite having committed very serious offences. As he has not provided a plausible alternative explanation, I find this was the case. This was the second time he tried to avoid the legal consequences of his offending, the first being when he gave a false account to the police.

23    I pause there to note that the applicant does not seek to challenge that finding in his notice of appeal. Returning to the Tribunal’s reasons, commencing at TD [43], the Tribunal found that the applicant was charged with the sexual offences on 29 September 2016, and:

Within hours of being charged, he went to a travel agency, Escape Travel, and arranged for a one-way plane ticket to Somalia, although he did not purchase a ticket that day.

24    At TD [44] through to and including TD [51], the Tribunal deals with the evidence on that point, concluding at TD [51] as follows:

I am not persuaded that the Applicant’s disclosure of his travel plans to Community Corrections is demonstrative that he wanted his bail conditions varied to allow for a short trip to Somalia. The evidence of what he actually did gives rise to a very strong inference that he purchased a one-way ticket to Somalia for the purpose of avoiding the charges he was facing, and I find that this was his motivation. This was his third attempt to avoid the legal consequences of his offending.

25    At TD [58], having essayed the circumstances of the applicant’s trial before the Supreme Court of the Australian Capital Territory and the sentencing remarks of the learned sentencing judge, the Tribunal said this:

The Applicant sought review of the Minister’s decision in this Tribunal. In the hearing, he adhered to the duress excuse he gave in his trial. However, whereas in his trial he denied having attempted to have penetrative sex with Ms B, in the hearing he admitted that he did that, but not “willingly”.

26    The Tribunal’s consideration of the review commences at TD [60] with a summary of what is the “public interest”, by reference to the decision of the Supreme Court of Victoria in Director of Public Prosecutions v Smith [1991] 1 VR 63 (Smith) at 76. That summary includes the statement that “the public interest is therefore the interests of the public as distinct from the interest of an individual or individuals”. The applicant does not say that the Tribunal misdirected itself by reference to that decision.

27    At TD [61] the Tribunal, in a summary way, accepted the Minister’s contention that revoking the applicant’s citizenship would be of considerable benefit to the Australian community and, therefore, in the public interest for three reasons:

a)    it would remove the conferral of citizenship on a person who ought never have been granted it in the first instance;

b)    it would pave the way for the Minister to potentially protect the Australian community from the risk posed to it by the Applicant (by the Applicant being susceptible to visa cancellation) and therefore provide compelling reason for him to behave; and

c)    it would mark the community’s disapproval of serious offending conduct by persons who wish to become Australian citizens, and consequently, also operate as a deterrent to such people.

28    The Tribunal stated that the third point was self-evident and did not require explanation and there is no contention before me that the Tribunal erred in reasoning in that way. As to the first matter, the Tribunal set out its reasons commencing at TD [63], taking into account the fact that “good character” is not defined in the Act but by reference to a policy known as the Australian Citizenship Policy Statement, which the Tribunal noted was a departmental policy and therefore not binding. Nevertheless, the Tribunal had regard to it, with a focus upon the concept of good character, that is, it is a phrase that should be taken to be used “in its ordinary sense, namely, a reference to the enduring moral qualities of a person, which is an objective assessment. It notes that a person who has been convicted of a serious crime may show that he or she has reformed and is of good character.”

29    At TD [64], the Tribunal noted from the Policy three matters of enduring moral quality, being: characteristics that have been demonstrated over a very long period of time, distinguishing right from wrong and behaving in an ethical manner conforming to the rules and values of Australian society. At TD [66], the Tribunal found as follows:

To my mind, there is no rational possibility that when the Applicant’s citizenship application was approved, the Minister could have been satisfied that he was of good character had the Minister known:

•    the nature and extent of the Applicant’s contumacious traffic offending

•    that the Applicant had committed the [sexual] offending; and

•    that the Applicant had colluded with a Khaled Al Abassi to thwart a police investigation into that offending.

30    In consequence, the Tribunal found at TD [67] that the applicant would not have been eligible for Australian citizenship by conferral, and what is more, that he was substantially motivated by a desire to circumvent migration laws in making that application. A further matter of public interest that the Tribunal addressed at TD [68] is that the applicant, on the Tribunal’s conclusion, was not a person of good character, concluding relevantly that the applicant lacked common decency and morality.

31    Tellingly, for present purposes, the Tribunal also found at TD [68] that the applicant still denies that he willingly committed the sexual offences, his regret over that situation is largely attributable to self-interest and he has not demonstrated honesty, an ability to distinguish right from wrong, ethical behaviour and conformity to the rules and values of Australian society over a very long period of time.

32    Returning to the second point that the Tribunal identified at TD [61], and then from TD [69], the Tribunal undertook a comprehensive assessment of the prospects of rehabilitation of the applicant, particularly by reference to reports prepared by or for ACT Community Corrections, and in particular, an assessment undertaken by a Dr Morris in 2018. That consideration continues to and includes TD [76], where the Tribunal accepted that the applicant had behaved in an appropriate way whilst incarcerated, after incarceration had obtained employment in Brisbane, did, at least for a period of time in Brisbane, hold a full-time job as a truck delivery driver and has not, since the date of his release, to use the Tribunal’s words: “been in trouble with the law”. The Tribunal then recorded the submission made on his behalf that he now looks back on his offending with heavy remorse and he has made genuine efforts to reform his character, although, the Tribunal concluded: “I do not think the evidence goes that far”.

33    The Tribunal, at TD [79], recorded the absence of any evidence that the applicant has undertaken a sex offender program or rehabilitative treatments as recommended by Dr Morris. The Tribunal emphasised that the applicant’s traffic offending was not encouraged by others and that it demonstrates a preparedness to be dishonest, disrespect for the rules concerning licensing and vehicle registration and disregard for the safety of other road users. The Tribunal records, however, at TD [80] that despite the applicant’s good behaviour in a controlled environment in prison, and his recent good behaviour in the community, there remains a very real risk that he will reoffend in the future.

34    From TD [81], the Tribunal took into account other matters personal to the applicant relating to the public interest factors, but concluded at TD [83] that, weighing all of the factors that are relevant to the public interest, it was satisfied that it would be contrary to the public interest for the applicant to remain an Australian citizen, and therefore the power to revoke his citizenship is enlivened. From TD [84] to TD [87], the Tribunal reasoned that it was not persuaded that it should act against the public interest by declining to exercise the power to revoke the applicant’s citizenship.

35    From TD [88], the Tribunal then dealt with the exception, that is, whether by revocation the applicant would not be a citizen of any country, and the particular contention which was then advanced by the applicant for the first time before the Tribunal that he was not a citizen of Somalia by birth. I traversed this material with the applicant during his oral submissions, and I have particularly drawn his attention to each of the factual findings that the Tribunal made by reference to documents at TD [89], and the conclusion at TD [92] that the document, relied on by the applicant and apparently produced by the government of Somalia, lacked credibility and was given no weight.

36    I record that I corrected, during submissions, my initial statement that the Tribunal found that this was a bogus document. Rather, the Tribunal’s finding was that the document had “many indicia of a bogus document”. In any event, the Tribunal was satisfied, as recorded at TD [93], that the applicant had not put forward sufficient evidence to cast doubt on the fact that his place of birth was Somalia, i.e. the evidence that he did rely upon was vastly outweighed by all of the other evidence that the Tribunal referred to, as summarised at TD [89].

37    For all those reasons, therefore, the Tribunal concluded at TD [96] that it was not satisfied that revoking the applicant’s Australian citizenship will render him a person who is not a citizen or a national of any country, should his citizenship be revoked. Now, I have spent some time, perhaps unusually in an appeal on a question of law, dealing with the merit of what the Tribunal said, in an attempt to explain to the applicant the conclusion that I have reached that his appeal must be dismissed.

38    The applicant, when invited by me to address each of his five grounds of appeal, faced obvious difficulty in doing so, in that he did not distinguish between submissions going to the merit of what the Tribunal decided as distinct from why it was said that the Tribunal made an error of law, which of course is the threshold requirement for his appeal to succeed. The applicant did not address any argument to me about grounds 1, 2 and 3 of the notice of appeal. In consequence, counsel for the Minister simply rested upon the Minister’s written submissions. In my view, the written submissions of the Minister are demonstrably correct, and none of those grounds are made out.

39    The first ground contends that, in deciding to affirm the Minister’s decision to revoke the applicant’s citizenship, the Tribunal made an error of law by misconstruing s 34(2) of the Act by conflating the power to exercise the discretion to revoke with the precondition to enlivenment of that power. It is further said that the Tribunal reached an overarching conclusion that the applicant’s citizenship should be revoked because it would be contrary to the public interest for the applicant to remain an Australian citizen, instead of first making an assessment of whether it was satisfied that it would be contrary to the public interest for the applicant to remain an Australian citizen, and, if answered in the alternative, then considered separately whether to exercise the discretion to revoke the applicant’s citizenship.

40    I must say that there is some difficulty in comprehending what is meant by that ground. No particular paragraph in the Tribunal reasons is adverted to in the ground as demonstrating the impermissible conflation between determination of whether the revocation was in the public interest and the exercise of the discretion. As correctly submitted by the Minister in the written submissions, the Tribunal delineated and considered separately, first, the question of whether revocation was in the public interest at TD [60] to [83], and then turned to exercise the discretion at TD [84] to TD [85]. There is, therefore, no merit in ground 1.

41    Ground 2 contends that, in determining that it would be contrary to the public interest for the applicant to remain an Australian citizen, the Tribunal made an error of law by applying the wrong test when it asked the question at TD [61] whether the revocation of the applicant’s citizenship would be of considerable benefit to the Australian community and therefore in the public interest. As I have noted, the Tribunal stated the test of public interest by reference to Smith. It is not said that that test was wrongly referenced by the Tribunal, as applicable to s 34(2), and quite simply there is no error of the type asserted in ground 2 in the Tribunal’s reasons. This ground is, therefore, of no merit and must fail.

42    The third ground contends that, in determining whether it would be contrary to the public interest for the applicant to remain an Australian citizen, the Tribunal made an error of law by failing to consider factors relevant to the public interest, including whether the applicant had re-established his good character. An initial difficulty with this ground is that it fails to identify just what were the public interest factors that were apparently overlooked in the Tribunal’s overall assessment of the public interest requirement. Further, as submitted by the Minister, the Tribunal did expressly consider this issue at TD [68] of its reasons and, on that basis, there is no merit in this ground.

43    Ground 4 contends that, in determining that it would be contrary to the public interest for the applicant to remain an Australian citizen, the Tribunal made an error of law by misconstruing relevant public interest factors, including by determining at TD [82] that the public interest in affording an individual the opportunity to rehabilitate would be better achieved by revoking the applicant’s citizenship than by permitting the applicant to remain a citizen. Some argument was addressed to me orally by the applicant, the effect of which is he had been released into the community since serving his period of incarceration and on parole and, since then, had demonstrated good behaviour.

44    The problem with that is that the Tribunal, in accordance with the Tribunal’s reasons that I have summarised, did expressly take into account the applicant’s period of good behaviour since his release from prison, in the paragraphs that I have earlier adverted to, but in particular: at TD [76], the evidence did not go so far as to demonstrating real remorse by the applicant; at TD [79], that the applicant lacks insight into his wrongdoing; at TD [80], the finding that there is a very real risk that he will re-offend in the future and at TD [82], where the Tribunal specifically considered his submission that the public has an interest in ensuring a disadvantaged individual can rehabilitate themselves without the threat of loss of citizenship and return to any country from which they fled. That submission was expressly rejected, the Tribunal finding, on the contrary, a strong deterrent against further offending is surely conducive to rehabilitation and to community safety. There is, therefore, no merit in this ground or the oral submissions as put to me by the applicant.

45    The final ground is ground 5, about which there has been considerable focus by the applicant in oral submissions. The contention of ground 5 is that, in deciding to affirm the Minister’s decision to revoke the applicant’s citizenship under s 34(2) of the Act, the Tribunal made an error of law by determining that it was not statutorily prohibited by s 34(2) of the Act from revoking the applicant’s Australian citizenship, because it was satisfied that the revocation would not result in the applicant becoming a person who is not a national or a citizen of any country, because it approached the determination from a presumption that the applicant was a citizen of Somalia and placed the onus on the applicant to disprove that presumption.

46    Now, in commencing my reasons, and in summarising what the Tribunal did, what is plain is that, first, there has been a significant change of position by the applicant between what was put to the Tribunal, that is, there was uncertainty about his place of birth, and what was put to me, that is, that he considers himself to have been born in Saudi Arabia. That aside, the real difficulty that ground 5 faces is that the Tribunal, for the comprehensive reasons that it set out commencing at TD [88] and concluding at TD [96], explained why it rejected the contention that there is uncertainty about the applicant’s status as a citizen of Somalia.

47    What has been put to me today, and what ground 5 seeks to agitate, is the merit of that factual finding. Notably, it has not been submitted to me that the finding was not open on the evidence, i.e. that there was no evidence to support the Tribunal’s finding. Plainly, there was significant evidence. It is not put to me that the Tribunal’s reasoning was legally unreasonable or irrational, and the ground and the arguments in support of it simply fail to grapple with the fact that the Tribunal concluded, as a matter of fact which is not reviewable on an appeal confined to a question of law, that the evidence that he was born in Somalia, to use the Tribunal’s words, “vastly outweighed” the evidence to the contrary: TD [93].

48    Further, contrary to the drafting of this ground, the Tribunal did not apply some sort of reverse onus upon the applicant to demonstrate that the Minister could not have been satisfied of lack of citizenship in accordance with s 34(3), but, and as correctly submitted by counsel for the Minister, there is a practical onus to adduce some evidence that he was not born in Somalia in order to counter the Minister’s conclusion that he was satisfied that the exception did not apply.

49    It is not necessary, therefore, for me to go into the question of materiality, which is addressed at [49] and [50] of the Minister’s submissions. For these reasons, ground 5 has no merit.

50    The consequence of this reasoning is that the appeal must be dismissed and I order as follows:

Associate:

Dated:    29 November 2023