Federal Court of Australia

Minister for Immigration, Citizenship and Multicultural Affairs v Pulini [2024] FCA 541

ORDERS

THE COURT ORDERS THAT:

1.    The appeal be allowed.

2.    The decision of the Administrative Appeals Tribunal of 19 January 2023 be set aside.

3.    The matter be remitted to the Administrative Appeals Tribunal for hearing and determination.

4.    The respondents pay the applicant’s costs of the appeal.

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

REASONS FOR JUDGMENT

RANGIAH J:

1    The first and second respondents (Mrs Pulini and Mr Pulini respectively) were sentenced to lengthy terms of imprisonment for a series of serious criminal offences including, “causing a person to enter into or remain in forced labour”.

2    That led to the Minister revoking the respondents’ citizenship pursuant to s 34(2) of the Australian Citizenship Act 2007 (Cth) (the Citizenship Act).

3    However, the Minister’s decisions were set aside upon review by the Administrative Appeals Tribunal (the Tribunal). The Minister now appeals from the Tribunal’s decision.

4    The Minister’s grounds of appeal are as follows:

1.    In relation to the Tribunal’s exercise of discretion, the Tribunal erred in failing to have regard to, and treat as a starting point, its satisfaction of the matters in s 34(2)(a)-(c) of the Act.

2.    In relation to the Tribunal’s exercise of discretion, the Tribunal erred in failing to have regard to the scope, purpose and policy of s 34(2) of the Act and the Act generally, beyond the purpose of protecting the Australian community.

…

3.    The Tribunal’s finding that “it is not readily apparent to the Tribunal what benefit the revocation of [the Respondents’] citizenship will achieve for the Australian community” (Reasons, [239]) was illogical, irrational or unreasonable, in circumstances where the Tribunal had, elsewhere in its reasons, made findings to the effect that revocation of the Respondents’ citizenships was in the interests of the Australian community.

4.    The Tribunal’s exercise of discretion in favour of the Respondents was not reasonably open to it in all the circumstances of the case.

5    It is necessary to describe the factual background, the relevant legislative provisions and the Tribunal’s reasons in order to give context to the grounds of appeal and the parties’ submissions.

Factual background

6    The respondents were born in Tonga. For about five years, they employed a Fijian woman (Ms MBN) as a domestic worker in Tonga. The respondents immigrated to Australia in 2006, and Ms MBN then worked for the respondents in Australia for three months before her tourist visa expired and she returned to Fiji.

7    In 2007, Mrs Pulini asked Ms MBN to return to Australia, telling her that Mr Pulini had a friend “in Immigration” who could help her with her papers so she could stay in Australia. When Ms MBN returned to Australia, the respondents took possession of her passport, ostensibly to get help from Mr Pulini’s friend, but that turned out to be merely a pretence. Mrs Pulini planned to create a situation where Ms MBN could be exploited. Her conduct amounted to an offence of trafficking in persons.

8    Ms MBN became, in effect, the respondents’ servant, performing labour for very little pay and under onerous and oppressive conditions. While the respondents’ conduct was not an offence known to law at the outset, their conduct became a criminal offence, namely, causing a person to enter into or remain in forced labour, from 8 March 2013.

9    On 11 May 2008, Ms MBN’s tourist visa expired. From that time, the respondents continued to allow Ms MBN to reside with them in her role as a servant. In doing so, the respondents committed the offence of harbouring an unlawful non-citizen.

10    On 26 May 2008, the respondents applied for Australian citizenship, and on 2 September 2009, acquired Australian citizenship by conferral.

11    In 2016, Ms MBN was able to break free from her situation, which had subsisted for around eight years by then.

12    In 2019, the respondents were convicted of the following criminal offences and were sentenced to the following terms of imprisonment:

(a)    Mrs Pulini:

(i)    trafficking in persons contrary to s 271.2(2) of the Criminal Code Act 1995 (Cth) (the Criminal Code) — 2 years’ imprisonment;

(ii)    harbouring an unlawful non-citizen contrary to ss 233(2) and 233E(3) of the Migration Act 1958 (Cth) (the Migration Act) — 3 and 2 years’ imprisonment, respectively; and

(iii)    causing a person to enter into or remain in forced labour contrary to s 270.6A(1) of the Criminal Code — 6 years’ imprisonment.

(b)    Mr Pulini:

(i)    harbouring an unlawful non-citizen contrary to ss 233(2) and 233E(3) of the Migration Act — 3 and 2 years’ imprisonment, respectively; and

(ii)    causing a person to enter into or remain in forced labour contrary to s 270.6A(1) of the Criminal Code — 5 years’ imprisonment.

13    The respondents pleaded guilty to the Migration Act offences, and were convicted of the Criminal Code offences following a trial.

14    Mr Pulini’s sentence expired on 15 April 2024, while Mrs Pulini’s sentence will expire on 15 April 2025.

15    The sentencing judge described the respondents’ offending in the following way:

The Pulinis treated their victim like a servant. She was paid poorly and made to feel of little value. Previously, Ms [MBN] had lived with, and worked for, the Pulinis for five years. They knew her as a good person, someone who was meek and gentle, and also good to their children. She had in fact played a significant role in the raising of those children.

Ms [MBN] had trusted the Pulinis. In return the Pulinis treated Ms [MBN] very badly. They used her poverty and desire to be in Australia to exploit her as cheap labour. They had encouraged her to stay on after her visa had expired. They oppressed her with duties, expectations and poor pay.

The longer Ms [MBN] stayed without a legal visa, the more difficult it became for her to break free. The Pulinis mistreatment was calculated. And criminal. The impact on Ms [MBN] was substantial. Her presentation in court was compelling. She had carried the weight of hopelessness and increasing despair for almost eight years.

…

The trafficking conviction means that from the outset, Mrs Pulini planned to create a situation where Ms [MBN] could be exploited. The promise of a contact in immigration was a device. Mrs Pulini never had any intention of helping Ms [MBN] get a long-term visa. Rather, Mrs Pulini intended to make Ms [MBN] more vulnerable by building her hopes for a future in Australia and by concealing the true reason for the confiscation of her passport.

On the strength of the promised contact in immigration, Ms [MBN] handed over her passport and she overstayed her visa, making it increasingly difficult for her to leave.

…

Mr Pulini admitted that the couple had talked in detail about bringing Ms [MBN] out. They decided from the outset that they would get her here on a three-month tourist visa with the intention that she would stay on illegally. He said it was more for the benefit of the Pulinis than Ms [MBN]. Mr Pulini also assisted in the confiscation of the passport. He admitted to putting it in his wardrobe. I accept Ms [MBN]’s evidence that Mr Pulini did not return the passport until it had expired.

…

At first Ms [MBN] had believed Ms Pulinis’ claim that they could get her a long-term visa. By the time that Ms [MBN] realised that it was not going to happen, she was already stuck. She knew under the terms of her visa that she was not supposed to work, and that she could not stay beyond the three months. She had in that way been made complicit in the breach of the immigration laws, and she was afraid of being charged and imprisoned.

…

Ms [MBN] was dependent upon the prisoners for her accommodation and for access to any income to send to her family. There was the marked power imbalance. If she had left the Pulini house she would have nowhere to live and no means of support in Australia. Even the bank account that she was given was in the Pulinis name. At any time, they could close it. I accept that Ms [MBN] was frightened of the Pulinis. The Pulinis would get mad at her if she was unable to do what was expected. They were unhappy with Ms [MBN] even visiting friends.

…

In the eight years with the Pulinis, Ms [MBN] did not have access to a doctor or a dentist. She got sick and she was in pain with toothache, but she was too afraid to ask for treatment. She suffered chronic health conditions, for which over the counter medications did not help. She would eat her meals alone and go to her room unless there were guests.

…

Ms [MBN]’s impact statement speaks of lost relationships, both actual and potential, and outlines the psychological trauma she has suffered. She was demeaned and intimidated. She felt voiceless and broken and hopeless. She is still depressed. She has not recovered her self-esteem or her capacity to enjoy life as she once did. The eight years have taken a terrible toll.

…

It is hard to reconcile the Pulinis presentation to their friends in the church and neighbourhood with the way that they treated Ms [MBN] behind closed doors. It seems that they compartmentalised their life. Privately they depersonalised Ms [MBN] as the help while publicly presenting the face of generosity and kindness, even volunteering to help others.

The criminal offending was not an aberration. It continued for eight years and it only ended when Ms [MBN] ran away. It was sustained, it was protracted and it was callous. The Prisoners took away a woman’s freedom and seriously compromised her human rights and dignity for eight years. That is time Ms [MBN] will never recover. Damage that has been done cannot be undone.

16    On 12 November 2021, the Minister decided to revoke the respondents’ citizenship under s 34(2) of the Citizenship Act.

17    On 20 December 2021, the respondents sought merits review of the Minister’s decisions by the Tribunal pursuant to s 52(1)(f) of the Citizenship Act. The Tribunal set aside the Minister’s decisions on 19 January 2023.

The Tribunal’s reasons

18    In the introductory section of its reasons for decision, the Tribunal set out much of the background described above, including the circumstances of the respondents’ offending and the remarks of the sentencing judge.

19    Under the heading, “Issues”, the Tribunal noted at [43] that the ultimate questions to be determined were whether the Minister’s decisions should be affirmed or set aside. The Tribunal observed at [45] that consideration had to be given to the following issues:

(a)    are the Applicants Australian citizens under Subdivision B of Division 2 of the Act – s 34(2)(a);

(b)    have the Applicants, at any time after making their respective applications for Australian citizenship, been convicted of a serious offence within the meaning of s 34(2)(b)(ii);

(c)    is it contrary to the public interest for either or both of the Applicants to remain Australian citizens – s 34(2)(c); and

(d)    whether, if the above matters are satisfied, the discretion should be exercised to revoke the Applicants’ citizenship?

20    The Tribunal noted that it was not in contest that the matters identified at paras (a) and (b) were satisfied, and that only the issues at paras (c) and (d) required resolution.

21    The Tribunal then observed that in TRHL v Minister for Immigration and Border Protection (2016) 152 ALD 488; [2016] FCA 376 (TRHL) at [53], Gilmour J had made the following observations regarding the two-step process required in making a decision under s 34(2) of the Citizenship Act:

…the Tribunal’s reasons here disclose that it was aware that it had firstly to be satisfied that it would be contrary to the public interest for the appellant to remain an Australian citizen before the discretion in s 34(2) of the Migration Act [sic, Citizenship Act] was enlivened, and if it was so satisfied, to decide whether, balancing the factors relied upon by each the Minister and the appellant, it should exercise the discretion to revoke the appellant’s Australian citizenship.

22    The Tribunal summarised the relevant provisions of the Citizenship Act under the heading, “Statutory Overview”. The Tribunal stated at para [57]:

It is tolerably clear, then, that, in determining whether it is contrary to the public interest for the Applicants to remain Australian citizens, the Tribunal is required to carefully evaluate and weigh the evidence presented with a view to ascertaining what course of action best serves the interest or welfare of the broader Australian community. In short, the focus is not only what is in the best interests of the Applicants, their family and associates, but what best serves the advancement of the interests of the Australian body politic. […]

23    The Tribunal at [58]–[60] acknowledged that the notion of “public interest” had its source in the eligibility criteria in s 21 of the Citizenship Act; and that s 21(2)(h), which requires the Minister’s satisfaction that the person is of good character at the time of the Minister’s decision, is of particular importance.

24    The Tribunal at [63]–[64] referred to a decision of Deputy President Hotop in Re Osorio and Minister for Immigration and Citizenship (2007) 94 ALD 525; [2007] AATA 59 (Osorio), observing that Mr Osorio had conceded he was not of good character when he was granted citizenship, and that a key issue in assessing the public interest was whether he had subsequently become a person of good character. The Tribunal then set out the following paragraphs from Osorio dealing with the exercise of the discretion:

41    …the considerations to which the tribunal should have regard include the advantages to Australian society on the one hand, and the disadvantages or hardship to the applicant and to other persons on the other hand, which would, or would be likely to, result from depriving the applicant of his Australian citizenship.

42.    The tribunal accepts the respondent’s submission that the advantages to Australian society which would result from depriving the applicant of his Australian citizenship include:

•    removal from the applicant of the status of Australian citizenship which would certainly not have been granted to him had the department been aware of his very serious offending behaviour at that time;

•    the likely deterrence of other applicants, or proposed applicants, for Australian citizenship from committing serious offences, or, having committed offences, from failing to inform the department thereof.

(Citations omitted.)

25    Under the heading, “Consideration”, the Tribunal reiterated at [78] that it was required to undertake a two-step process. The first step was identified at [79] as determining whether it was contrary to the public interest for the respondents to remain Australian citizens. The second step was described as follows at [80]:

Second, if the Tribunal concludes that it is contrary to the public interest for either or both of the Applicants to remain Australian citizens, then the Tribunal must determine if the discretion ought to be exercised to revoke either or both of the Applicants’ Australian citizenship.

26    The Tribunal went on to consider whether it was contrary to the public interest for the respondents to remain Australian citizens. After considering a number of relevant factors in considerable detail, the Tribunal reached the following conclusion:

201.    In this matter, the following issues weigh against the Applicants:

(a)    the serious nature of the crimes for which they were convicted;

(b)    the prolonged period of time over which the crimes were committed;

(c)    the emotional and physical damaged caused to Ms MBN;

(d)    the lack of remorse demonstrated at the Trial;

(e)    the refusal of the Applicant [sic, Applicants] to plea guilty to all of the offences; and

(f)    the requirement, and consequent damage caused to Ms MBN, by having to give evidence and be cross-examined.

202.    The Tribunal is required to balance the various competing public interest considerations inherent in citizenship revocation matters. Clearly, the following matters weigh in favour of the Applicants:

(a)    the lack of any criminal history other than the crimes against Ms MBN;

(b)    a long history of gainful employment;

(c)    a long history of community service;

(d)    extensive references attesting to good character and good deeds by many friends and associates;

(e)    reports by Mr Hamilton opining a low risk of reoffending;

(f)    exemplary conduct whilst in incarceration; and

(g)    evidence of both Applicants gaining in self-awareness and developing true remorse for their crimes.

203.    The Tribunal is required to perform its task of determining the public interest by assessing the evidence presented now, not at the time of sentencing, or at some future time.

204.    The crimes committed by the Applicants were serious. They were committed over an extended period of time. The Applicants showed little remorse for their actions. A reading of the Victim Impact Statement of Ms MBN highlights the damage done to her by the Applicants and how she will continue to be afflicted with the side-effects of that damage for the rest of her life […].

205.    Countering this is the fact that the Applicants’ have commenced on the road to rehabilitation. They are the parents of four children who want, and need their love and attention. They do not have a criminal history.

206.    On the balance, and having particular regard to the fact that the Applicants remain in prison and have not been able to demonstrate that they have regained their good character, the Tribunal finds it would be contrary to the public interest for the Applicants to remain as Australian citizens.

27    Under the heading, “Exercise of the discretion to revoke the applicants’ citizenship”, the Tribunal stated:

207.    In determining whether to exercise the discretionary power, the Tribunal must give consideration to, and properly weigh, the advantages to the society by exercising the discretion to revoke against the disadvantages to an applicant and other persons that would flow therefrom – see WBU at 245/[44] per Deputy President Hotop.

28    In that passage, the Tribunal cited the following passage from Re WBU and Minister for Immigration and Citizenship (2007) 45 AAR 225; [2007] AATA 1143 (WBU), where Deputy President Hotop stated at [44]:

In determining whether it is appropriate to exercise the discretionary power conferred by s 21(1) of the Act in the applicant’s case, the considerations to which the Tribunal should have regard include the advantages to Australian society on the one hand, and the disadvantages or hardship to the applicant and to other persons on the other hand, which would, or would be likely to, result from depriving the applicant of his Australian citizenship.

(Citations omitted.)

29    It may be observed that in WBU, Deputy President Hotop went on at [45] to explain that, in his view, the principal advantage to Australian society was that the status of Australian citizen would be removed from a person who might not have been granted citizenship had their commission of the relevant offences been known, and who had not yet re-established their good character, and whose remaining an Australian citizen would be contrary to the public interest.

30    The Tribunal then stated at [208] that the type of considerations that could inform the discretion were discussed by Gilmour J in TRHL. The Tribunal then quoted from [54] in TRHL where Gilmour J set out a number of factors the Tribunal in that case had considered and described as representing the interests of, or disadvantages to, an individual, before concluding:

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

31    The Tribunal then continued:

209.    In this matter, the legal representatives of the Applicants put forward the following factors that should be taken into account when considering the exercise of the discretion […]:

(a)    the Applicants are long-term members of the Australian community;

(b)    aside from their offending conduct, they have been productive and law-abiding members of the Australian community;

(c)    they have made substantial professional and social contributions to the Australian community;

(d)    their offending conduct involved a single course of action, albeit resulting in separate offences;

(e)    the offending conduct occurred primarily after they acquired Australian citizenship;

(f)    in the two-year period leading up to the trial, the Applicants were on bail and complied with all bail conditions;

(g)    the Applicants have already served a lengthy period in prison, and the Australian community values the concept of forgiveness when someone has ‘done his or her time’;

(h)    the Applicants have conducted themselves in an exemplary fashion during their terms of imprisonment;

(i)    the Applicants have demonstrated remorse and insight in respect of their offending conduct and have actively sought to redeem themselves through payment of compensation to the victim and engaging in self-funded criminogenic treatment;

(j)    they have undertaken appropriate psychological treatment;

(k)    they have extensive support networks ready to support their reintegration into the Australian community;

(l)    they are well regarded and respected within the Australian community and have broad community support;

(m)    they pose little to no risk of reoffending;

(n)    revocation of citizenship will result in the Applicants acquiring an ECV under s 35(3) of the Migration Act, but the ECV will be mandatorily cancelled by operation of s 501(3A) of the Migration Act;

(o)    even if the mandatory cancellation of the ECV’s could be overcome, the rights attached to an ECV are limited to the holder remaining in Australia, but not being permitted to return to Australia if the holder departs – s 35(1) of the Migration Act; and

(p)    revocation of citizenship would result in hardship for the Applicants’ children, because the mandatory cancellation of any ECV and, alternatively, the limited rights conferred by an ECV.

32    The Tribunal went on to state:

210.    It is tolerably clear to the Tribunal that the exercise of the discretion properly requires a decision-maker to carefully consider the personal circumstances of an applicant, and that assessment can, and usually does, result in a broader inquiry than the public interest inquiry. […]

211.    Having given careful consideration to the evidence presented, the Tribunal makes the following positive findings for the Applicants:

(a)    apart from the crimes committed against Ms MBN, both Mr and Mrs Pulini have no history of criminal or traffic offences, either in Tonga or Australia;

(b)    the Applicants have four children, all of whom reside in Brisbane and who, it would appear, have positively integrated into Australian society;

(c)    Mr Pulini has a long history of involvement with Australia and has held senior public service positions with the Queensland Government. It would appear that he has made a positive impact through his employment for the Queensland community;

(d)    from the numerous personal references presented to the Tribunal, I accept that the Applicants are held in high regard by their wide circle of friends, associates and colleagues;

(e)    both Mr and Mrs Pulini have been engaged in gainful employment during the time they have resided in Australia. In short, they have been productive members of the community;

(f)    despite the vile nature of the crimes committed against Ms MBN, both Mr and Mrs Pulini have shown a commitment to, and have exercised, their rights and duties as Australian citizens. Their employment, lack of criminal history, community engagement and charitable works demonstrate that proposition;

(g)    the psychological reports of Ms Geddes and Mr Hamilton highlight two important matters. The first being that both Mr and Mrs Pulini have actively sought out, and obtained, medical intervention to improve their psychological situation. Second, they have both shown steady progress towards the path of insight and contrition. In short, both Applicants have positively engaged with professionals to rehabilitate themselves;

(h)    the Applicants behaviour whilst on bail, and since being in prison, has been exemplary. The voluminous reports of Queensland Corrective Services support the view that they have been model prisoners; and

(i)    although impossible to state conclusively, the Tribunal is of the view that the Applicants pose little risk to the Australian community and, as such, are unlikely to re-offend.

33    The Tribunal then considered whether revocation of citizenship was likely to result in removal of the respondents from Australia. The Tribunal determined at [220] to proceed on an assumption that in the event the respondents’ citizenship were revoked, the Minister’s power under s 501(3A) of the Migration Act to cancel their visas would be exercised while they remained in criminal detention. The Tribunal considered at [227] that it was not possible nor desirable to speculate on what would ultimately happen should that power be exercised.

34    The Tribunal went on to discuss the Minister’s submission that a factor favouring exercising the discretion in favour of cancellation was deterrence of other applicants for citizenship from committing offences, or having committed offences, from failing to inform the Department. The Tribunal concluded at [236]–[238] that deterrence was a valid consideration, but that the revocation of the respondents’ citizenship had not been demonstrated to be an effective deterrent tool.

35    The Tribunal then concluded as follows:

239.    In conclusion, the Applicants’ are currently serving their sentences and are in the process of rehabilitating themselves. From their behaviour whilst in prison, it is tolerably clear to the Tribunal that they pose would little risk to the community on their release from custody. They were both recommended for parole, but those recommendations were rejected by the then Commonwealth Attorney-General. Apart from their vile behaviour towards Ms MBN, which resulted in them committing various serious crimes, they do not have a criminal or traffic history. They have been active members of the community, involved with their church and have successfully raised four children. Apart from further punishing the Applicants’, it is not readily apparent to the Tribunal what benefit the revocation of their citizenship will achieve for the Australian community.

240.    For the reasons outlined above, the Tribunal is satisfied that it should not exercise its discretion to revoke the Applicants’ citizenship.

The legislative provisions

36    Section 21 of the Citizenship Act provides, relevantly:

21    Application and eligibility for citizenship

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

…

General eligibility

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

(a)    is aged 18 or over at the time the person made the application; and

(b)    is a permanent resident:

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

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

(c)    satisfies the general residence requirement (see section 22) or the special residence requirement (see section 22A or 22B), or satisfies the defence service requirement (see section 23), at the time the person made the application; and

(d)    understands the nature of an application under subsection (1); and

(e)    possesses a basic knowledge of the English language; and

(f)    has an adequate knowledge of Australia and of the responsibilities and privileges of Australian citizenship; and

(g)    is likely to reside, or to continue to reside, in Australia or to maintain a close and continuing association with Australia if the application were to be approved; and

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

37    Section 24 then provides, relevantly:

24    Minister’s decision

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

…

(1A)    The Minister must not approve the person becoming an Australian citizen unless the person is eligible to become an Australian citizen under subsection 21(2), (3), (4), (5), (6), (7) or (8).

38    Section 34 provides, relevantly:

34    Revocation by Minister—offences or fraud

…

Citizenship by conferral

(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:

(i)    the person has been convicted of an offence against section 50 of this Act, or section 137.1 or 137.2 of the Criminal Code, in relation to the person’s application to become an Australian citizen;

(ii)    the person has, at any time after making the application to become an Australian citizen, been convicted of a serious offence within the meaning of subsection (5);

(iii)    the person obtained the Minister’s approval to become an Australian citizen as a result of migration related fraud within the meaning of subsection (6);

(iv)    the person obtained the Minister’s approval to become an Australian citizen as a result of third party fraud within the meaning of subsection (8); and

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

…

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.

39    The expression “serious prison sentence” is defined in s 3 to mean, “a sentence of imprisonment for a period of at least 12 months”.

Consideration

40    The Minister’s first ground of appeal asserts that the Tribunal erred in law in the exercise of the discretion under s 34(2) of the Citizenship Act by failing to have regard to, and/or failing to treat as a starting point, the Tribunal’s satisfaction of the matters in paras (a), (b) and (c) of that subsection.

41    The Minister submits that in exercising its discretion, the Tribunal was bound to take into account its anterior findings that after making their applications for citizenship, the respondents had been convicted of offences for which they were each sentenced to a “serious prison sentence”; and, it would be contrary to the public interest for them to remain Australian citizens. That submission largely coalesces into an argument that the Tribunal erred in failing to take into account the second of those considerations.

42    The Minister also submits that the purpose of citizenship revocation goes beyond merely protecting the Australian community and extends to revoking the citizenship of a person who is not “worthy” or not “deserving” of the conferral of Australian citizenship, and that this was a matter required to be taken into account by the Tribunal.

43    The respondents submit that the Tribunal did not fail to take into account its finding of satisfaction that it was contrary to the public interest for the respondents to remain Australian citizens. They submit that the Tribunal’s language indicates it was aware of the link between satisfaction of the preconditions and the exercise of the discretion. This is also said to be indicated by the Tribunal’s quotation of passages at [53]–[55] of TRHL, which shows that the Tribunal understood that its public interest findings were not to be cast aside and were a starting point for consideration of the discretion. The respondents also rely upon the Tribunal’s observations at [210] as indicating that the Tribunal was including (not disregarding) the public interest in its consideration of the discretionary power, while also undertaking a “broader enquiry”.

44    The respondents submit that in considering the exercise of the discretion, the Tribunal made multiple references to the respondents’ offending conduct and took into account that the respondents are not of good character. Accordingly, it is said that the Tribunal took into account that the respondents were persons who had committed serious offences and that it was contrary to the public interest for them to remain Australian citizens.

45    The respondents submit that the Tribunal’s reasons must be read as a whole and, as the Tribunal undertook a detailed and lengthy analysis of the public interest, it would be an extraordinary reading of the Tribunal’s reasons to conclude that it disregarded its own findings when considering the exercise of the discretion.

46    An appropriate starting point for consideration of the parties’ submissions is s 21(2)(h) of the Citizenship Act, which provides that a person is eligible to become an Australian citizen if the Minister is satisfied that the person, “is of good character at the time of the Minister’s decision on the application”.

47    Section 34 of the Citizenship Act then provides, relevantly:

(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);

...

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

48    There is clear authority that s 34(2) confers a discretionary power on the Minister to revoke a person’s Australian citizenship upon satisfaction of the matters identified in paras (a), (b) and (c) of that subsection. In Waraich v Minister for Home Affairs (2021) 286 FCR 45, the Full Court held at [52]:

…[Section] 34(2) confers a discretionary power on the Minister to do a thing (revoke citizenship) the exercise of which is conditioned, inter alia, on forming an evaluative judgment that not to do the thing would permit a situation to persist (continuance of the person’s Australian citizenship) that is contrary to the public interest.

49    Their Honours continued at [57]:

…As stated at [52] above, s 34(2) is structured to confer a discretionary power on the Minister to revoke the citizenship of a person the exercise of which is conditioned on the three matters identified in ss 34(2)(a) to (c). First, the revocation must be directed to a person who obtained citizenship by conferral: s 34(2)(a). Second, the person must have been convicted of an offence of a type described in ss 34(b)(i) to (iv). Third, the Minister must be satisfied that it would be contrary to the public interest for the person to remain an Australian citizen: s 34(2)(c). The residual discretion in s 34(2) is only enlivened after all the conditions in ss 34(2)(a) to (c) are met.

50    The first question is whether, in exercising its discretion, the Tribunal (standing in the shoes of the Minister) was bound to take into account its findings that: (1) the respondents had been convicted of serious offences after making their citizenship application; and (2) it was satisfied that it would be contrary to the public interest for the respondents to remain Australian citizens. That question falls to be determined as a matter of construction of the statute.

51    Section 34(2) of the Citizenship Act does not expressly state that the findings concerning paras (b) and (c) must be taken into account in the exercise of the discretion. Accordingly, if the Minister is to be held to be bound to take such considerations into account, that must appear as a matter of implication from the subject matter, scope and purpose of the Act: see Water Conservation and Irrigation Commission (NSW) v Browning (1947) 74 CLR 492 at 505 (Dixon J), Sean Investments Pty Ltd v MacKellar (1981) 38 ALR 363 at 375; [1981] FCR 191 at 25 (Deane J) and Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 at 40 (Mason J).

52    In Jones v Commonwealth of Australia (2023) 415 ALR 46; [2023] HCA 34 (Jones), in the course of determining the validity of s 34(2)(b)(ii) of the Citizenship Act, the High Court examined the purpose of s 34(2), explaining that s 21(2)(h) is integral to determining that purpose. The plurality held at [54] that:

The requirement of s 34(2)(c) that the Minister be satisfied that it would be contrary to the public interest for the person whose citizenship is revoked to remain an Australian citizen furthers the purpose of protecting the integrity of the naturalisation process […] by facilitating reconsideration of the critical question whether the person was of good character at the time of grant without constraining the capacity of the Minister to have regard to subsequent rehabilitation and integration into the Australian community. Were the Minister to purport to invoke the power of revocation of the Australian citizenship of someone convicted of a serious crime for the purposes of retribution, denunciation or deterrence under the guise of being satisfied that it would be contrary to the public interest for that person to remain an Australian citizen, the purported exercise of power would be unauthorised on the basis that the power would have been exercised for an extraneous and improper purpose.

53    Similarly, Gordon J held at [71]–[72] that:

…[T]he mischief to which s 34(2)(b)(ii) is directed is the “gap” created by the possibility of criminal conduct, occurring before the grant but not known about at the time of the grant, that is clearly relevant to the good character criterion of eligibility for citizenship.

54    In Waraich, the Full Court at [54] cited with approval a passage from BFM16 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 312 at [147], where Farrell J held in respect of s 501A(2) of the Migration Act that:

In determining whether or not he or she is satisfied that refusal or cancellation is in the national interest for the purposes of s 501A(2)(e), the Minister is not exercising a discretionary power, but is rather forming an evaluative judgment. That satisfaction is the starting point for the consideration of the exercise of discretion in s 501A(2)(e): [CWY20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2020) 282 FCR 62 (CWY20)] at [79], relying on [Graham v Minister for Immigration and Border Protection (2017) 263 CLR 1 (Graham)] at [57]–[58].

55    In Waraich, the Full Court observed at [57] that the similarities in the structure of s 34(2) of the Citizenship Act and s 501A(2) of the Migration Act are readily apparent. In both sections, the residual discretion is only enlivened when the Minister forms an evaluative judgment that certain conditions are met. The Full Court can be understood to have accepted that the Minister’s satisfaction as to the considerations in paras (a), (b) and (c) of s 34(2) of the Citizenship Act is the starting point for the consideration of the discretion.

56    In any event, it can hardly be supposed to be the legislative intention that the Minister, being required to be satisfied of the matters that enliven the discretion, should be free to ignore those matters when exercising the discretion. As was explained in Jones, s 34(2)(b)(ii) facilitates reconsideration of the critical question of whether the person was of good character at the time of grant. It may be noted that the considerations in paras (a) and (b) of s 34(2) naturally also fall for consideration under para (c) in assessing the public interest. After having considered matters such as the nature and seriousness of the person’s criminal conduct and any rehabilitation and integration into the Australian community, the Minister may be satisfied that it would be contrary to the public interest for the person to remain an Australian citizen.

57    The Minister’s satisfaction under para (c) that it would be contrary to the public interest for the person to remain an Australian citizen then provides an obvious starting point from which the Minister may exercise the discretion. The Minister exercises the discretion by taking into account against that satisfaction any countervailing factors falling outside public interest considerations, such as hardship that may or will be caused to the person and other individuals. There is a clear legislative intention that when considering whether the person’s citizenship should be revoked in the exercise of the discretion, the Minister is bound to take into account the matters in paras (a), (b) and (c) of s 34(2).

58    The next question is whether the Tribunal failed to take those considerations into account in the exercise of its discretion. That question coalesces into whether the Tribunal took into account its satisfaction that it would be contrary to the public interest for the person to remain an Australian citizen. The answer must be found by examining the Tribunal’s reasons.

59    The Tribunal did not expressly say that it took into account its satisfaction that it would be contrary to the public interest for the respondents to remain Australian citizens in the exercise of its discretion. It is necessary to determine from the reasons whether an inference can be drawn that this was taken into account.

60    In Lafu v Minister for Immigration and Citizenship (2009) 112 ALD 1; [2009] FCAFC 140, the Full Court held at [47]–[54] that reasons for decision published by a decision-maker who is obliged to have regard to mandatory considerations should show an active intellectual engagement with all mandatory criteria: applied in Minister for Immigration and Citizenship v Khadgi (2010) 190 FCR 248 at [63].

61    In Minister for Immigration and Border Protection v SZMTA (2019) 264 CLR 421, the plurality held at [14]:

The Tribunal's decision on completion of the review is ordinarily required by s 430 [of the Migration Act] to be recorded in a written statement which, amongst other things, "sets out the reasons for the decision", "sets out the findings on any material questions of fact", and "refers to the evidence or any other material on which the findings of fact were based". The section "entitles a court to infer that any matter not mentioned in the s 430 statement was not considered by the Tribunal to be material".

(Footnotes omitted.)

62    There are similar provisions in ss 43(2) and (2B) of the Administrative Appeals Tribunal Act 1975 (Cth).

63    In Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 236 FCR 593, the Full Court held at [47]:

The inference that the tribunal has failed to consider an issue may be drawn from its failure to expressly deal with that issue in its reasons. But that is an inference not too readily to be drawn where the reasons are otherwise comprehensive and the issue has at least been identified at some point. It may be that it is unnecessary to make a finding on a particular matter because it is subsumed in findings of greater generality or because there is a factual premise upon which a contention rests which has been rejected. Where however there is an issue raised by the evidence advanced on behalf of an applicant and contentions made by the applicant and that issue, if resolved one way, would be dispositive of the tribunal’s review of the delegate’s decision, a failure to deal with it in the published reasons may raise a strong inference that it has been overlooked.

64    It must also be remembered that reasons are, “meant to inform and [are] not to be scrutinised by over-zealous judicial review by seeking to discern whether some inadequacy may be gleaned from the way in which the reasons are expressed”: Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272.

65    The Tribunal at [209] set out 16 factors which the respondents’ legal representatives submitted should be taken into account when considering the exercise of the discretion. The Tribunal went on at [211] to make nine “positive findings” in favour of the respondents.

66    The Tribunal observed at [210] that exercise of the discretion, “properly requires a decision-maker to carefully consider the personal circumstances of an applicant, and that assessment can, and usually does, result in a broader inquiry than the public interest inquiry”.

67    The Tribunal then considered whether revocation of citizenship was likely to result in removal of the respondents from Australia, concluding at [227] that it was not possible nor desirable to speculate on whether that would ultimately happen.

68    The Tribunal considered a submission made by the Minister that a factor favouring revocation was deterrence of other applicants for citizenship from committing or disclosing offences. The Tribunal concluded that deterrence is a valid consideration, although it may be observed that Jones at [54]–[55] now makes it clear that it is not a valid consideration. The Tribunal considered that it had no objective material supporting the proposition that revocation would have a deterrent effect.

69    The Tribunal concluded as follows:

239.    In conclusion, the Applicants’ are currently serving their sentences and are in the process of rehabilitating themselves. From their behaviour whilst in prison, it is tolerably clear to the Tribunal that they pose would little risk to the community on their release from custody. They were both recommended for parole, but those recommendations were rejected by the then Commonwealth Attorney-General. Apart from their vile behaviour towards Ms MBN, which resulted in them committing various serious crimes, they do not have a criminal or traffic history. They have been active members of the community, involved with their church and have successfully raised four children. Apart from further punishing the Applicants, it is not readily apparent to the Tribunal what benefit the revocation of their citizenship will achieve for the Australian community.

240.    For the reasons outlined above, the Tribunal is satisfied that it should not exercise its discretion to revoke the Applicants’ citizenship.

70    The only matters referred to by the Tribunal that may be construed as supporting the exercise of the discretion in favour of revocation of the respondents’ citizenship were the references to their “vile” behaviour and “serious crimes”. All the other matters referred to were neutral or favoured the respondents. There is no clear indication that the Tribunal took into account its anterior satisfaction that it would be contrary to the public interest for the respondents to remain Australian citizens when exercising the discretion.

71    The respondents submit that the Tribunal’s quotation of passages at [53]–[55] of TRHL shows that the Tribunal understood that its public interest findings were not to be cast aside when considering the discretion. However, nothing in those passages from TRHL provides any adequate support for that submission.

72    The Tribunal stated at [207] that it, “must give consideration to, and properly weigh, the advantages to the society by exercising the discretion to revoke against the disadvantages to an applicant and other persons…”. The respondents submit that this passage indicates that the Tribunal recognised it was required to take into account its satisfaction that it would be contrary to the public interest for the respondents to remain Australian citizens.

73    However, the respondents’ submission is inconsistent with the last sentence of [239], where the Tribunal stated that, “it is not readily apparent to the Tribunal what benefit the revocation of their citizenship will achieve for the Australian community”. The obvious answer to the doubt expressed by the Tribunal was that it had earlier found at [206] that the “public interest” requirement in s 34(2)(c) of the Citizenship Act had been satisfied.

74    When the Tribunal found at [206] that it was satisfied that, “it would be contrary to the public interest for the [respondents] to remain as Australian citizens”, the Tribunal had “particular regard” to the respondents’ inability, “to demonstrate that they have regained their good character”. That was a reference to the requirement in s 21(2)(h) of the Citizenship Act that the person be of “good character” at the time of the Minister’s decision to grant citizenship, which the Tribunal had accepted at [59] was of “particular importance” to the public interest. The Tribunal thereby accepted that in circumstances where the respondents had been granted Australian citizenship on the basis of their good character when, in fact, they had already committed serious criminal offences, and they had not since regained their good character, it was contrary to the public interest for them to remain Australian citizens. That was an implicit recognition that revocation of the respondents’ citizenship would benefit the Australian community by protecting the integrity of the naturalisation process.

75    The Tribunal’s subsequent and inconsistent opinion that it was not readily apparent what benefit revocation of the respondents’ citizenship would achieve for the Australian community is inexplicable. The expression of that opinion indicates that when exercising the discretion, the Tribunal did not take into account the satisfaction it had reached under s 34(2)(c) of the Citizenship Act that it would be contrary to the public interest for the respondents to remain Australian citizens. Accordingly, the Tribunal made an error of law by failing to take into account a mandatory relevant consideration.

76    It is appropriate to address the Minister’s submission that the purpose of s 34(2) of the Citizenship Act extends to revoking the citizenship of a person who is not “worthy” or not “deserving” of Australian citizenship, and that this was a matter required to be taken into account by the Tribunal. The Minister’s language strays into the realm of denunciation and retribution. The High Court made it clear in Jones at [54] that the power cannot be exercised for such purposes. The Minister’s submission must be rejected.

77    However, the Minister’s first ground should be upheld.

78    In the course of argument, the Minister’s counsel clarified that the second ground of appeal was an alternative to the first ground. Since I have upheld the first ground, the second ground need not be considered.

79    The Minister’s third ground asserts that the Tribunal’s finding at [239] that, “it is not readily apparent to the Tribunal what benefit the revocation of [the respondents’] citizenship will achieve for the Australian community”, was illogical, irrational or unreasonable, in circumstances where the Tribunal had already found that, “it would be contrary to the public interest for the [respondents] to remain as Australian citizens”. I would uphold this ground for reasons I have already given at [73]–[75] above.

80    It is necessary to consider the Minister’s fourth ground because if it is upheld, it would be unnecessary to remit the matter to the Tribunal for further hearing and determination. The fourth ground asserts that the Tribunal’s exercise of discretion in favour of the respondents was not reasonably open to it.

81    The Minister submits that in circumstances where the Tribunal found that the respondents were not of good character at the time of the Minister’s decision to grant citizenship and were not of good character at the time of the Tribunal’s decision, it was not open to the Tribunal to exercise the discretion against revocation of citizenship. The Minister’s submission is that, as a matter of construction of the Citizenship Act, the question of good character is such an overwhelming matter, that no other discretionary factors can overcome a conclusion that the person was not and is not of good character.

82    The Minister’s use of expressions such as “bizarre”, “incoherent” and “outrageous” to describe the Tribunal’s exercise of discretion was, quite frankly, overblown. Leaving that aside, I am unable to accept the Minister’s argument.

83    The question of the person’s good character both at the time of the Minister’s decision to grant citizenship and at the time of the decision as to whether to revoke citizenship is undoubtedly relevant and important to whether, under s 34(2)(c) of the Citizenship Act, the Minister (or Tribunal) is satisfied that it would be contrary to the public interest for the person to remain an Australian citizen. The question of good character remains relevant and important to the exercise of the discretion.

84    However, there is nothing to indicate that good character is the only consideration that may affect the exercise of the discretion, nor that it is a matter of such overwhelming importance that it is incapable of being overcome by any countervailing factors. When the Minister considers, under s 34(2)(c), whether they are satisfied it would be contrary to the “public interest” for a person to remain an Australian citizen, the interests of the person and of other individuals are not relevant except to the extent that they coincide with the public interest (for example, where the person is at risk of deportation, the interests of the person’s children might coincide with a broader public interest in avoiding separation of families). Once the preconditions of s 34(2) are met, “a broad, evaluative discretionary power is engaged”: Jones v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 137 at [20].

85    Section 34(2) does not identify any particular matters which the Minister is bound to not take into account, nor prescribe any weight that must be ascribed to particular matters, in the exercise of the discretion. The purpose, or at least a purpose, of the residual discretion being conferred must be to allow the Minister to consider matters that were not taken into account when considering the public interest, and which may influence the Minister to make a decision to not revoke notwithstanding the Minister’s satisfaction that it would be contrary to the public interest for the person to remain a citizen. The matters the Minister might consider to be appropriate to consider in the exercise of the discretion include detriment, or the potential for detriment, to the person or other individuals resulting from revocation of the person’s citizenship. Since “good character” is not an absolute standard, the extent of the person’s attempts at rehabilitation and the degree to which they remain not of good character might also be relevant. The conferral of a discretion under s 34(2) of the Citizenship Act expressed in such broad terms is inconsistent with the Minister’s proposition that a finding that a person was not and is not of good character must result in revocation of their Australian citizenship. Accordingly, I reject the Minister’s fourth ground.

86    In view of the success of the Minister’s first and third grounds, the appeal must be allowed. The Tribunal’s decision will be set aside. The matter will be remitted to the Tribunal for hearing and determination.

87    The respondents will be ordered to pay the Minister’s costs of the appeal.

Associate:    

Dated:    24 May 2024