Federal Court of Australia

Waraich v Minister for Immigration, Citizenship and Multicultural Affairs [2025] FCA 305

ORDERS

THE COURT ORDERS THAT:

1.    A writ of certiorari issue directed to the second respondent, quashing the second respondent’s decision made on 9 December 2022.

2.    The matter be remitted to the Administrative Review Tribunal to consider and determine the applicant’s application for review according to law.

3.    The first respondent pay the applicant’s costs, as agreed or taxed.

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

REASONS FOR JUDGMENT

HORAN J:

Introduction

1    The applicant seeks judicial review of a decision made by the Administrative Appeals Tribunal on 9 December 2022, affirming a decision of the Minister for Immigration, Citizenship and Multicultural Affairs to revoke his Australian citizenship under s 34(2) of the Australian Citizenship Act 2007 (Cth).

2    The applicant was born in India. Prior to becoming an Australian citizen, he was included as a secondary applicant in successive visa applications made by his wife. In each of those visa applications, the applicant failed to declare various aspects of his immigration history, including that he had previously applied for and been granted a student visa under a different name, and that he had departed Australia as an unlawful non-citizen following the cancellation of his student visa.

3    The applicant was granted Australian citizenship on 14 November 2009. He was subsequently convicted of offences against s 50(1) of the Citizenship Act and s 234(1)(c) of the Migration Act 1958 (Cth) arising from the making of false statements or representations in relation to his citizenship application and his previous visa applications. On 9 January 2018, his Australian citizenship was revoked by the Minister under s 34(2) of the Citizenship Act as a result on those convictions. That revocation decision was affirmed by the Tribunal on 9 December 2022.

4    The applicant challenges the Tribunal’s decision on three grounds:

(a)    that the Tribunal misconstrued the “public interest” test in s 34(2)(c) of the Citizenship Act by finding that that the assessment of the public interest is “by definition, a retrospective one”, such that the likelihood of the applicant committing further offences in the future was of “little or no relevance” to that exercise (Ground 1);

(b)    second, that the Tribunal purported to exercise a function or power in a manner that was essentially and exclusively judicial in character, by revoking the applicant’s citizenship so as to impose a “deterrent effect” (Ground 2); and

(c)    that the Tribunal failed to have regard to the applicant’s evidence and submissions that, if his citizenship were to be revoked, there was a risk that his ex-citizen visa would be cancelled and he would be removed from Australia (Ground 3).

5    For the reasons set out below, I consider that the Tribunal misconstrued and misapplied s 34(2) of the Citizenship Act by confining its inquiry to the historical aspects of the applicant’s conduct, and in particular his past offending conduct within s 34(2)(b)(i) and (iii), when considering whether it was contrary to the public interest for the applicant to remain an Australian citizen and whether to exercise the discretion to revoke his Australian citizenship. Accordingly, Ground 1 is upheld and the Tribunal’s decision must be set aside.

6    However, I do not consider that the Tribunal took into account an irrelevant consideration or exercised its power for an improper purpose by having regard to general deterrence as a factor in the protection of the integrity of the immigration system and the process of obtaining Australian citizenship. Nor do I accept that the Tribunal failed to have regard to evidence or submissions to the effect that the Minister or his Department had explored or was exploring the possible cancellation of the applicant’s ex-citizen visa. Grounds 2 and 3 are therefore dismissed.

Background

7    The applicant was born in India on 25 September 1977 with the name Amardeep Singh. On 11 March 1997, he was issued with an Indian passport in that name.

8    On 3 March 1998, the applicant arrived in Australia as the holder of a student visa (Class TU subclass 560) that had been granted to him under his identity as Amardeep Singh. On 23 September 1998, the applicant’s student visa was cancelled as a result of a breach of visa conditions. The applicant was taken into immigration detention, before he was eventually granted a bridging visa. The cancellation decision was later set aside on review by the (then) Immigration Review Tribunal.

9    The applicant then unsuccessfully applied for a protection visa. He has since acknowledged that the protection visa application included claims that he knew to be false. After the refusal of his protection visa application, the bridging visa held by the applicant expired and he remained in Australia for several months as an unlawful non-citizen. On 20 June 2002, he presented himself to officers of the Department of Immigration and Border Protection at Perth airport, and departed Australia voluntarily.

10    At some time after he had returned to India, the applicant changed his name from Amardeep Singh to Randeep Singh, purportedly based on advice that he had received from an “astrologist” that this would improve his luck in the future. On 23 June 2003, the applicant was issued with an Indian passport which recorded his name as Randeep Singh.

11    On 28 February 2004, the applicant married Preet Mohinder Guraya, an Indian national. The wedding took place in India.

12    On 26 June 2004, the applicant’s wife lodged an offshore application for a student visa in which the applicant was included as her dependant spouse under the name Randeep Singh (the student visa application). The applicant co-signed the application form and certified that the information supplied on or with the form was correct. However, the application did not declare that he had previously applied for an Australian visa or that he had left Australia to avoid being removed or deported. The student visa application was granted on 23 August 2004, and the applicant and his wife entered Australia on 2 October 2004.

13    On 23 November 2004, VicRoads issued a learner’s permit to the applicant in the name of Randeep Singh, having presented his Indian passport in that name as his primary identification. On 8 December 2004, the applicant obtained a driver’s licence issued in the same name.

14    On 8 September 2006, the applicant’s wife lodged a general skilled migration visa application, again including the applicant as a secondary applicant under the name Randeep Singh (the skilled visa application). The applicant signed the skilled visa application form, declaring that he understood the purpose of the information he had provided. That information included answering “not applicable” to questions whether there were any other names he was or had been known by, or other ways in which his name was spelt. Further, the application again declared that no person included in the application had ever left any country to avoid being removed or deported, or been excluded from or asked to leave any country (including Australia). The application failed to state that the applicant had previously been to Australia, or had held a visa for travel to Australia, and failed to list Australia as a country in which he had lived for 12 months or more in the last ten years. On 14 December 2006, the applicant and his wife were granted skilled migration visas (Class DD subclass 880).

15    The applicant and his wife had two children, each of whom were born in Australia, a daughter born on 28 January 2007 and a son born on 26 July 2008.

16    On 10 March 2009, the applicant registered a change of name with Births, Deaths and Marriages Victoria to Randeep Singh Waraich.

17    On 8 May 2009, the applicant applied for Australian citizenship by conferral in the name Randeep Singh Waraich. In that application, he stated that Randeep Singh was the only name by which he had previously been known, and that his first Australian visa had been granted on 23 March 2004. The applicant’s citizenship application was approved, and he acquired Australian citizenship by conferral on 14 November 2009.

18    In October 2010, VicRoads identified that the applicant had previously been issued with a driver’s licence in 1998 under the name Amardeep Singh. When applying for his current licence, the applicant had failed to disclose his previous name and the fact that he had previously been suspended from driving due to demerit points. On 10 November 2010, the applicant was interviewed by a VicRoads investigator, and admitted his previous identity.

19    VicRoads notified the Department of its findings in relation to the applicant’s previous identity under the name Amardeep Singh.

20    In September 2013, the applicant was charged with one offence against s 50(1) of the Citizenship Act in relation to false or misleading statements in his citizenship application, and three offences under s 234(1)(c) of the Migration Act in relation to false or misleading statements in the student visa application in 2004, the skilled visa application in 2006, and a personal particulars for character assessment form in connection with the 2006 visa application.

21    On 27 November 2013, at the Heidelberg Magistrates’ Court, the applicant pleaded guilty to and was convicted of the offence against s 50(1) of the Citizenship Act and two offences against s 234(1)(c) of the Migration Act, for which he was fined $5,000.

22    On 20 December 2013, the Department notified the applicant that, in view of his convictions, the Minister may revoke his citizenship under s 34 of the Citizenship Act if he were satisfied that it would be contrary to the public interest for him to continue to be an Australian citizen. The letter stated that, if the Minister revoked the applicant’s citizenship, he would cease to be an Australian citizen at that time and, while he would be taken to have been granted an ex-citizen visa under s 35 of the Migration Act, that visa may be subject to cancellation due to his convictions. The letter invited the applicant to provide reasons as to why the Minister should not revoke his citizenship.

23    In response to this invitation, the applicant’s legal representatives provided extensive submissions and supporting material in February and March 2014. The Department did not take any further action in relation to the applicant’s case until 3 April 2017, when it sent him a further invitation to provide reasons why his citizenship should not be revoked. On 31 August 2017, the applicant’s representative provided further submissions and material in response.

24    On 9 January 2018, the Minister decided to revoke the applicant’s Australian citizenship under s 34(2) of the Citizenship Act (the Minister’s decision). In a written statement of reasons, the Minister found that s 34(2)(b)(i) and (iii) applied to the applicant (having been convicted of an offence against s 50 of the Citizenship Act and having obtained the Minister’s approval to become an Australian citizen as a result of migration-related fraud). The Minister found that the extenuating and mitigating circumstances (including the applicant’s guilty plea and expressions of remorse, and his significant community involvement) were outweighed by the need for general deterrence and the need to uphold the integrity of the migration and citizenship programs, and was satisfied that it would be contrary to the public interest for the person to remain an Australian citizen. The Minister considered that it was appropriate to exercise the discretion under s 34(2) to revoke the applicant’s citizenship, expressing his conclusions as follows:

I have balanced the interests of the Australian community against the likely impact to Mr Waraich and his family should his Australian citizenship be revoked. I have considered the nature of Mr Waraich's migration and citizenship offences, his ties to Australia and the impact to him and his family. I have treated the best interests of Mr Waraich's minor children as a primary consideration in my decision.

However, I have placed more weight on the seriousness of providing false and misleading information to a Government agency and the consequences that could flow as a result of acquiring Australian citizenship on the basis of false and misleading information. I have also placed some weight on the fact that such actions undermine the integrity of information relied upon by authorities and compromises the integrity of the migration and citizenship programs. I have also taken into consideration the need for general deterrence in such cases.

Having considered all available information, I am satisfied that it would be contrary to the public interest for Mr Waraich to remain an Australian citizen and that it is appropriate for me to exercise my discretion to revoke Mr Waraich's Australian citizenship under section 34(2) of the Citizenship Act. Therefore, I have decided to revoke Mr Waraich's Australian citizenship.

25    Upon the revocation of his citizenship, the applicant was taken to have been granted an ex-citizen visa by the operation of s 35(3) of the Migration Act.

26    The applicant applied to the Tribunal for review of the Minister’s decision. On 5 December 2018, the Tribunal (differently constituted) set aside the Minister’s decision and substituted it with a decision that the applicant was entitled to have the revocation of his citizenship reversed: Waraich and Minister for Immigration and Border Protection (Citizenship) [2018] AATA 4524.

27    The Minister sought judicial review of the first Tribunal’s decision. On 21 October 2020, Anastassiou J set aside the Tribunal’s decision and remitted the application for review to the Tribunal to be heard and determined according to law: Minister for Home Affairs v Waraich [2020] FCA 1513. His Honour held that the Tribunal had misunderstood and misapplied s 34(2)(c) of the Citizenship Act by drawing a false distinction between whether it was “contrary to the public interest” for a person to remain an Australian citizen as opposed to “in the public interest” for a person no longer to remain an Australian citizen (see TRHL v Minister for Immigration and Border Protection [2016] FCA 376; 69 AAR 192 at [41] (Gilmour J)). Among other things, Anastassiou J considered that this misunderstanding was apparent from the manner in which the Tribunal had dealt with the Minister’s submissions about deterrence, the integrity of the migration and citizenship regime, and the interests of the Australian community: see Waraich at [45]. Further, Anastassiou J also held that the first Tribunal had erred by limiting its consideration to the conduct or matters in respect of which the applicant had been convicted, thereby failing to consider admissions of dishonesty made by the applicant in the course of his oral evidence.

28    The decision of Anastassiou J was upheld on appeal: Waraich v Minister for Home Affairs (2021) 286 FCR 45 (Bromberg, Katzmann and Cheeseman JJ) (Waraich (FC)).

The Tribunal’s decision

29    On 9 December 2022, the Tribunal affirmed the Minister’s decision: Waraich and Minister for Immigration, Citizenship and Multicultural Affairs (Citizenship) [2022] AATA 4232 (T).

30    The Tribunal identified two issues for determination: whether it would be contrary to the public interest for the applicant to remain an Australian citizen (s 34(2)(c) of the Citizenship Act); and, if so, whether the Tribunal should exercise its discretion to revoke the applicant’s citizenship under s 34(2) of the Citizenship Act: T [15], [17].

The public interest

31    The Tribunal observed that the applicant’s conduct involved “a theme of him dishonestly interacting with lawful authority”, and that his offending “must be surely regarded as serious”, noting that “[t]he deliberate withholding or misreporting of information to [or] from an Australian government department having a lawful right to acquire such information is offending of a serious nature”: T [21]. While the applicant accepted at the hearing before the Tribunal that he had knowingly made false declarations to the Department in 2004, 2006 and 2009, those falsities were not voluntarily disclosed by the applicant to the Department but rather “only coincidentally came to light as a result of an investigation conducted by VicRoads”: T [22].

32    The Tribunal did not accept the applicant’s explanation of his conduct as a “means of protecting his family”, finding that he had adopted a position of providing deliberately false information to lawful authority well before he and his now-wife had their children: T [23].

33    The Tribunal found that the circumstances of the applicant’s failed protection visa application, which the applicant admitted had been made for the purpose of securing more time in Australia and was not grounded on any fear of harm in India, demonstrated the applicant’s “tendency towards adopting deliberately false positions as a means of securing an advantage for himself”: T [24]. The Tribunal rejected the applicant’s evidence that his migration agent had failed to notify him of the decision to refuse to grant him a protection visa or the expiry of his bridging visa, resulting in him becoming an unlawful non-citizen: T [25]–[27]. In this regard, the Tribunal made adverse findings that the applicant knowingly provided false information to the Tribunal, and falsely sought to attribute blame on his former migration agent: T [28]. The Tribunal did not accept that this situation could be attributed to the applicant’s mental state during the relevant period: T [29]–[38].

34    The Tribunal did not accept that the applicant’s failure to disclose his previous identity to VicRoads could be explained by reference to his unwillingness to interfere with or “sabotage” his wife’s aspirations in Australia, causing him to “stay quiet” and to “maintain the fiction” or “keep up the story” in the hope that he would not be caught: T [40]. The Tribunal stated that “[i]n terms of his entitlement to citizenship of this country, his primary obligation is to the country that grants him that citizenship and to no one else”, and that “[i]f he wanted citizenship of this country he should have voluntarily told this country (via its lawful instrumentalities) about his ‘migration misconduct’ and not run the gauntlet of that conduct never being detected”: T [41]. Further, the Tribunal rejected the suggestion that the applicant had not set out to engage in a course of dishonesty, finding that “[t]he reality that VicRoads chanced upon the Applicant’s concealed previous identity completely removes any exculpatory factor from the Applicant’s conduct involving provision of false information to government”: T [42].

35    In relation to the applicant’s migration fraud, the Tribunal found that his offending conduct was committed for the purpose of achieving a specific migration outcome: T [43]. This enabled him to secure his re-entry to Australia as a dependent on his wife’s student visa application, notwithstanding that he was ineligible for the grant of a visa (except in compelling circumstances) by reason of having previously left Australia as an unlawful non-citizen. In such circumstances, the Tribunal found that the applicant’s conduct “involving the deliberately propounded falsehoods around his earlier identity and migration history saw him receive two visas and a grant of citizenship in circumstances where he was plainly not entitled to those things”, and agreed with the Minister’s contention that “such conduct undermines the administration of the Migration Act and it is contrary to the public interest for the applicant to hold citizenship as a result of that residence”: T [44].

36    The Tribunal found that it was very unlikely that the applicant would have acquired Australian citizenship if his migration misconduct had been known at the time of his citizenship application: T [45]–[46]. Accordingly, the Tribunal found that it would be contrary to the public interest for the applicant’s citizenship not to be revoked (i.e. for the applicant to remain an Australian citizen): T [47].

37    The Tribunal also had regard to issues relating to the integrity of the immigration system, referring to and applying general comments from a previous Tribunal decision about the seriousness of dishonest conduct in relation to a person’s identity in their dealings with government entities (see Eidson v Minister for Immigration and Border Protection [2017] AATA 1354 at [34]). In this regard, the Tribunal stated (at [49]):

It is surely beyond argument that it serves the public interest for government to deter prospective visa applicants from attempting to “game the system” in the way this Applicant has done. The integrity of the immigration system and public confidence in that system are at the forefront of its proper administration. The public is entitled to have confidence in its immigration system and how it is administered. It follows that it is in the public interest to revoke this Applicant’s citizenship on the basis of the extent to which his conduct has directly challenged both the integrity and administration of this country’s immigration system.

38    In considering the public interest, the Tribunal took into account that the Minister had personally made a decision to revoke the applicant’s citizenship under s 34 of the Citizenship Act, while acknowledging that the Minister’s opinion was “not, of itself, a determinative consideration”: T [50]–[52].

39    Before reaching its conclusion on the public interest condition, the Tribunal addressed several matters that were described as “residual factors”: (i) an expert opinion of a consultant psychologist, Mr Tim Watson-Munro; (ii) evidence from the applicant’s wife; and (iii) evidence from a number of additional witnesses, including the applicant’s daughter and several friends and colleagues: T [53]–[62].

40    In his report, Mr Watson-Munro assessed the applicant’s risk of reoffending as “low”, referring to protective factors such as his employment, his expressions of remorse, an absence of substance use, the support of his wife and children, and his engagement with the community. The Tribunal dealt with this report as follows (T [53]–[54]):

[T]o the extent the Applicant purports to rely on his recidivist risk assessment as assessed by Mr Watson-Munro, I am hard-pressed to comprehend the utility of any such risk assessment in terms of this Tribunal now forming a view about whether it is, or is not, in the public interest for this Applicant to remain an Australian citizen. The present exercise to be conducted by the Tribunal is, by definition, a retrospective one. The question is whether, as a result of his past conduct, the public interest is best served by him not remaining an Australian citizen.

It is the historical elements of the Applicant’s conduct which talk to that exercise. Future prognostications do not speak to that exercise. Therefore, whatever risk assessment of Mr Watson-Munro the Applicant now purports to rely on is of little or no relevance to that exercise. The Applicant’s conduct has involved identity fraud and false representations to government over a prolonged period. Even a low or low-medium finding of recidivist risk relating to the commission of similar conduct in future does not assist the Applicant. Even the glimmer of the perpetration of such conduct in the future would lead this Tribunal to a finding that it is not in the public interest for him to remain an Australian citizen.

(Emphasis added.)

41    The Tribunal similarly placed little if any weight on Mr Watson-Munro’s assessment of the applicant’s levels of remorse, in circumstances where the applicant had “ample time to put such remorse into practical effect by telling the authorities about his misdeeds before they detected them”, but instead “maintained the fraud and deception and said nothing to anyone until his conduct was incidentally detected by VicRoads”: T [55]. In such circumstances, the Tribunal commented that “[r]etrospectively expressed remorse must always be received with extreme caution”.

42    In relation to the “protective factors” identified by Mr Watson-Munro as reducing the risk of reoffending, the Tribunal regarded those factors as “of little moment” and of little, if any, relevance to whether it was in the public interest for the applicant to remain an Australian citizen: T [56]. Thus, the Tribunal stated (T [56]):

What the Applicant has done – “migration misconduct” – has been done. Only the circumstances of that past conduct can now inform this Tribunal on the specific question of what is/is not in the public interest. Claimed protective factors against future recidivist risk are not informative about this public interest element.

(Emphasis added.)

The Tribunal also observed, “at a more fundamental level”, that the applicant had lawful employment both at the time of and since making his citizenship application, presumably suggesting that this protective factor had not prevented the applicant from offending in the past.

43    The Tribunal considered that the evidence from the applicant’s wife was “best dealt with on the basis of significant caution”, although it did not accept that she had set out to mislead the Tribunal: T [57]–[60]. The Tribunal regarded her evidence as “intended to assist” the applicant, resulting in “opaqueness and inconsistency” on several topics. The Tribunal concluded that it was more likely than not that the applicant had not told her about the circumstances of his previous voluntary removal from Australia or the real purpose behind his use of a different name in Australia. Accordingly, the Tribunal treated the applicant’s wife as a “victim” whose evidence did not assist the Tribunal in forming a view about whether or not it was in the public interest for the applicant to remain an Australian citizen.

44    Similarly, the Tribunal was not assisted by the evidence of the applicant’s daughter or his friends and colleagues: T [61]–[62]. The former was regarded by the Tribunal as “no higher than a plea to this Tribunal to grant citizenship to the Applicant as a means of resolving uncertainty and discomfort in the family”: T [61]. The latter was characterised as containing “a consistent theme of the Applicant being deserving of Australian citizenship based on their respective assessments of the quality of person they say the Applicant is”: T [62]. However well-intentioned that evidence may have been, the Tribunal found that it did not assist in forming the state of satisfaction required by s 34(2)(c).

45    Having regard to the evidence, the Tribunal found that it would be contrary to the public interest for the applicant to remain an Australian citizen.

Exercise of the discretion to revoke citizenship

46    The Tribunal found that the factors weighing in favour of exercising the discretion to revoke the applicant’s citizenship outweighed the factors against doing so, and accordingly exercised the discretion to affirm the Minister’s decision: T [68]–[69].

47    The Tribunal’s reasons on the exercise of the residual discretion under s 34(2) of the Citizenship Act are relatively brief. This reflects the fact that the exercise of discretion followed from and was informed by the formation of the requisite state of mind about the public interest condition: see e.g. Waraich (FC) at [58]–[59] (Bromberg, Katzmann and Cheeseman JJ).

48    The Tribunal commenced this section of its reasons by stating a number of propositions, most of which drew upon aspects of its reasoning in relation to the public interest condition (T [64)]:

There is little to cavil with the following propositions:

(a)    the Applicant’s past offending giving rise to his self-professed “migration misconduct” does constitute serious conduct;

(b)    this conduct was knowingly propounded for the specific purpose of maintaining a fiction about his identity as a means of protecting (initially) his visa status to be here and (latterly) his citizenship status of this country;

(c)    there is a requirement for general deterrence of such serious conduct in relation to identity fraud that strikes at the heart of this country’s migration system and the objects of the legislation that governs it;

(d)    the conduct was of such a nature that it caused the Minister of the day to personally intervene and make a decision that it was in the public interest for the Applicant to no longer hold citizenship of this country;

(e)    the Applicant’s acceptance that much of his conduct was fraudulent and serious;

(f)    the still-maintained implausibility around other aspects of his evidence such as being caused by his mother to change his name because of unprovable astrological reasons; and

(g)    his attempts to sanitize or re-cast his evidence on the basis of a now-claimed inability to adequately recall or explain aspects of his evidence on the basis of past “black phases” or “black periods” in his life which has no support in any contemporaneous clinical finding.

(Emphasis added.)

49    Accordingly, the Tribunal agreed with a submission made by the Minister that it “comes down to the applicant not being allowed to bare [sic] the fruits of his crimes”: T [65].

50    For the sake of completeness, the Tribunal mentioned the matters set out below, which were regarded by the Tribunal as “of little or no moment” and as not supporting any different finding in relation to the public interest condition or the exercise of the discretion under s 34(2): T [66]–[67].

(a)    The Tribunal considered that the applicant’s remorse and “asserted exemplary behaviour” did not assist his case, in circumstances where his admission of the “inherent falsity” of his past conduct had only come to light at the previous Tribunal hearing, and having regard to the “inherent implausibility” of much of his and his wife’s evidence.

(b)    The decision to revoke his Australian citizenship would not render the applicant stateless (contrary to the applicant’s contention that he had lost his Indian citizenship). The Tribunal considered that following the revocation of his Australian citizenship, the applicant would “retain the same entitlement to work and live in Australia” as any other permanent resident would.

(c)    The applicant did not risk deportation as a result of the cancellation of his “currently-held visa”. The Tribunal acknowledged that such a scenario remained “a technical possibility”, but found that “the question goes no higher than speculation” and that it would be “unsafe to allocate any level of determinative weight to a matter of speculation”.

(d)    The Tribunal did not consider that the applicant’s case was assisted by any adverse impact on the best interests of his two children. The Tribunal found that “[a]s the Applicant will have the right to remain in Australia on a visa, the current parental bond between him and his children will remain unchanged”. Further, the revocation of the applicant’s citizenship would not impact the Australian citizenship of his wife or his children.

(e)    The Tribunal found that it was open to the applicant to make a future application for Australian citizenship, which would be determined having regard to his previous conduct.

Consideration

Applicable legislative provisions

51    Subdivision B of Div 2 of Pt 2 of the Citizenship Act provides for the conferral of Australian citizenship as one of the ways in which a person may become an Australian citizen by application. Australian citizenship that is acquired in this manner may be liable to revocation under s 34(2) of the Citizenship Act. As in force at the time of the Tribunal’s decision, s 34(2) relevantly provided as follows:

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.

…

Migration-related fraud

(6)     For the purposes of this section, a person obtained the Minister’s approval to become an Australian citizen as a result of migration-related fraud if and only if:

(a)     at any time, the person was convicted of an offence against:

(i)     section 234, 236 or 243, or former section 244 (as in force before its repeal by the Same-Sex Relationships (Equal Treatment in Commonwealth Laws—General Law Reform) Act 2008), of the Migration Act 1958; or

(ii)     section 134.1, 134.2, 135.1, 135.2, 135.4 or 136.1 of the Criminal Code;

that the person committed at any time before the Minister gave the approval; and

(b)     the act or omission that constituted the offence was connected with the person’s entry into Australia or the grant to the person of a visa or of a permission to enter and remain in Australia.

(7)     Subsection (6) does not apply to a person in respect of an offence if the Minister is satisfied that the act or omission that constituted that offence was not in any way (whether directly or indirectly) material to the person becoming a permanent resident.

52    I note in passing that the power to revoke a person’s citizenship in circumstances covered by s 34(2)(b)(i) and (iii) is not qualified by any requirement that the Minister must be satisfied that the person would not become stateless: cf. s 34(3), which applies to the revocation of citizenship based on a subsequent conviction of a serious offence that was committed before the person became an Australian citizen. In this regard, s 34(2)(b)(i) and (iii) reflect the position at international law: see Convention on the Reduction of Statelessness, opened for signature 30 August 1961, 989 UNTS 175 (entered into force 13 December 1975), Art 8(2)(b); Jones v Commonwealth [2023] HCA 34; 97 ALJR 936 at [56] (Kiefel CJ, Gageler, Gleeson and Jagot JJ), [84] (Gordon J), [166] (Edelman J).

Ground 1: Whether the Tribunal misconstrued the “public interest” condition in s 34(2)(c)

53    By Ground 1, the applicant alleges that the Tribunal misconstrued the public interest condition in s 34(2)(c) of the Citizenship Act by finding that the test was “by definition, a retrospective one”, and that the assessment of the applicant’s risk of reoffending in the future was “of little or no relevance” to the question whether or not it was in the public interest for the applicant to remain an Australian citizen: T [53]–[54].

54    The applicant submitted that s 34(2)(c) uses the present tense (“is satisfied that it would be contrary to the public interest for the person to remain an Australian citizen”), and that there is nothing in the statutory text or context to suggest that the test is retrospective or limited by reference to any particular point in time. Rather, the Tribunal is required to determine as at the time of its decision whether it is satisfied that it would be contrary to the public interest for the applicant to remain an Australian citizen: see Shi v Migration Agents Registration Authority (2008) 235 CLR 286.

55    The Minister submitted that the applicant’s arguments in support of Ground 1 were based on a misreading of the Tribunal’s approach and that, on a fair reading of its reasons, the Tribunal did not confine itself to a retrospective assessment of the public interest condition under s 34(2)(c). Rather, the Tribunal understood that s 34(2)(c) is couched in the present tense, and identified its task as “now forming a view about whether it is, or is not, in the public interest for this Applicant to remain an Australian citizen”: T [53], emphasis added. In so far as the Tribunal stated (at T [54]) that it was the “historical elements of the Applicant’s conduct” which spoke to the exercise to be conducted by the Tribunal, the Minister submitted that this should be understood in the sense that the applicant’s past conduct was of most relevance to an assessment whether it was in the public interest for him to remain an Australian citizen, and that greater weight ought to be placed on the applicant’s prior conduct than on the “prognostications” of Mr Watson-Munro about the applicant’s potential future conduct. The Minister argued that such an approach was consistent with the purpose of the public interest test under s 34(2)(c) as identified in Jones at [21], [34] (Kiefel CJ, Gageler, Gleeson and Jagot JJ).

56    The Minister further argued that the Tribunal did not purport to limit its consideration to the state of affairs at any time in the past, such as the time of the citizenship application or the time of the Minister’s decision. The fact that the Tribunal had regard to other “inherently prospective” matters, such as the need to ensure public confidence in the immigration system (at T [49]), was said to indicate that the Tribunal had not confined itself to past matters.

57    The Minister submitted that it was open to the Tribunal to determine which matters it regarded as relevant to the public interest condition, and the relative weight or importance to be accorded to those matters. In so far as the Tribunal found that Mr Watson-Munro’s assessment of the applicant’s risk of repeating his conduct in the future was not relevant to the public interest, the Minister submitted “[t]hat finding was open to the Tribunal and does not demonstrate an unduly temporally confined approach to s 34(2)(c) of the [Citizenship] Act”.

58    The present case involves the powers under s 34(2)(b)(i) and (iii) of the Citizenship Act.

(a)    Section 34(2)(b)(i) is attracted in circumstances where the person has been convicted of an offence against s 50 of that Act or ss 137.1 or 137.2 of Schedule 1 to the Criminal Code Act 1995 (Cth) (the Criminal Code) in relation to the person’s application to become an Australian citizen. Those offences involve knowingly making false or misleading representations or statements, or concealing material circumstances, for the purposes of the Citizenship Act, or knowingly giving false or misleading information or producing false or misleading documents to a Commonwealth entity or a person who is exercising powers or performing functions under a Commonwealth law in compliance or purported compliance with a Commonwealth law. In each case, the representation, statement, information or document must be false or misleading in a material particular.

(b)    Section 34(2)(b)(iii) is attracted in circumstances where the person obtained approval to become an Australian citizen as a result of “migration-related fraud”. This covers conviction of a range of offences under the Migration Act or the Criminal Code involving fraud and dishonesty in dealings with the Commonwealth, including providing false or misleading information or forged or false documents in connection with a visa application.

(c)    The conditions governing these powers require that the relevant fraud or dishonesty affected the process of applying for and obtaining Australian citizenship. The offence against s 50 of the Citizenship Act or ss 137.1 or 137.2 of the Criminal Code of which the person has been convicted must be one “in relation to” the person’s citizenship application, and must involve a representation, statement or information that was knowingly false or misleading “in a material particular”. If the person has been convicted of an offence amounting to migration-related fraud, there must be a causal link between that offence and obtaining Australian citizenship, in that the person must have obtained approval to become an Australian citizen “as a result of” the migration-related fraud, and the power does not apply unless the act or omission that constituted the offence was directly or indirectly material to the person becoming a permanent resident.

(d)    Accordingly, the conditions in s 34(2)(b)(i) and (iii) are essentially directed to circumstances in which the person has acquired Australian citizenship illegitimately or on false pretences.

59    The deprivation of citizenship is generally regarded as a severe consequence involving the loss of public rights of fundamental importance to the relationship between the individual and the Commonwealth: Alexander v Minister for Home Affairs (2022) 276 CLR 336 at [74] (Kiefel CJ, Keane and Gleeson JJ), and see also at [166] (Gordon J), [248] (Edelman J); Benbrika v Minister for Home Affairs [2023] HCA 33; (2023) 97 ALJR 899 (Benbrika (No 2)) at [22] (Kiefel CJ, Gageler, Gleeson and Jagot JJ), [63] (Gordon J), [110] (Edelman J); Jones at [76] (Gordon J). Nevertheless, a power to revoke citizenship on the ground of fraud is a longstanding feature of the statutory regime governing naturalisation, consistently with the laws relating to citizenship and nationality in other jurisdictions including the United States, Canada and New Zealand: see e.g. Joint Standing Committee on Migration, Commonwealth Parliament, Australians All: Enhancing Australian Citizenship (September 1994), 132–133 [4.172]–[4.174].

60    When it was first enacted, s 21 of the Nationality and Citizenship Act 1948 (Cth), which was later renamed the Australian Citizenship Act 1948 (Cth) (the 1948 Act), conferred power on the Minister to deprive a person of his or her Australian citizenship if he or she “was registered or naturalized by means of fraud, false representation or the concealment of some material circumstances”, provided that the Minister could not make such an order unless satisfied that it was “not conducive to the public good that that person should continue to be an Australian citizen”. A similar power had been conferred on the Governor-General by s 12(1) of the Nationality Act 1920 (Cth) to revoke a certificate of naturalisation if satisfied that the certificate had been “obtained by false representation or fraud, or by concealment of material circumstances” (see also British Nationality and Status of Aliens Act 1914, 4 & 5 Geo 5, c 17, s 7(1)).

61    Section 21 of the 1948 Act was replaced in 1958 with a provision that was the predecessor of the current s 34(2)(b)(i) of the Citizenship Act, conferring power to make an order depriving a person of their Australian citizenship if they had been convicted of an offence under s 50 of the 1948 Act (which was in similar terms to s 50 of the Citizenship Act) and the Minister was satisfied that it would be contrary to the public interest for the person to continue to be an Australian citizen: see Nationality and Citizenship Act 1958 (Cth), ss 7, 11. Subsequent amendments to s 21 of the 1948 Act introduced the powers now contained in s 34(2)(b)(ii) and (iii) of the Citizenship Act in 1984 and 1997 respectively: see Australian Citizenship Amendment Act 1984 (Cth), s 15; Migration Legislation Amendment Act (No 1) 1997 (Cth), Sch 4.

62    Despite its long history, there have been relatively few decisions by courts or tribunals on s 34(2)(b)(i) and its predecessor provisions, perhaps reflecting that the power has been exercised sparingly to date: see Kim Rubenstein, Australian Citizenship Law (2nd ed, Lawbook Co, 2017), 253 [4.1220] n 911, 255–256 [4.1230]; see also Ghumaan and Minister for Home Affairs (Citizenship) [2019] AATA 200 at [19]–[21]. Section 34(2)(b)(iii), while of more recent origin, has also received little judicial consideration.

63    The power to revoke citizenship under s 34(2)(b)(ii), where a person is convicted of a serious offence committed before the person became an Australian citizen, was considered by the High Court in Jones. In that case, the majority of the High Court upheld the validity of s 34(2)(b)(ii) as a law with respect to naturalisation supported by s 51(xxix) of the Constitution, and which did not impermissibly confer judicial power on the Minister contrary to Chapter III of the Constitution. Critical to that outcome was the conclusion that s 34(2)(b)(ii) was reasonably capable of being seen as necessary to protect the integrity of the naturalisation process: Jones at [19], [34], [41], [50]–[52] (Kiefel CJ, Gageler, Gleeson and Jagot JJ), [182] (Edelman J); [188], [197] (Steward J). Such a purpose is more directly revealed by the powers under s 34(2)(b)(i) and (iii), each of which is concerned with the impact of fraudulent conduct on an earlier grant of citizenship. As Gordon J observed, those provisions, which deal with fraud, dishonesty or concealment in the naturalisation process, are “more closely tailored” to the purpose of protecting the integrity of that process: see Jones at [70]–[71], [84] (Gordon J); see also at [158], [174] (Edelman J). In the case of s 34(2)(b)(ii), the majority of the High Court was able to reach a similar conclusion on the basis that the power was designed to address “irregularity” in the process of naturalisation in circumstances where the original decision by which a person acquired citizenship had been made “on materially incorrect or incomplete information”, such that a finding that a statutory precondition to the grant of citizenship was met is subsequently proven erroneous: Jones at [47]–[48], [51]–[52] (Kiefel CJ, Gageler, Gleeson and Jagot JJ), [164]–[165] (Edelman J), [197] (Steward J).

64    In that context, the High Court in Jones addressed the operation of the condition in s 34(2)(c) which requires the Minister to be satisfied that “it would be contrary to the public interest for the person to remain an Australian citizen”. It was accepted that the criterion of “public interest” imports “a discretionary value judgment to be made by reference to undefined factual matters”, save for those which are held to be “definitely extraneous” to the subject matter, scope and purpose of the Act: Jones at [21] (Kiefel CJ, Gageler, Gleeson and Jagot JJ), [93] (Gordon J), [171] (Edelman J), [201] (Steward J). This permits the Minister to consider whether the person would have been granted citizenship if the prior criminal conduct of which the person was convicted had been known at the time of the grant. Importantly, however, it also permits the Minister to consider other things, including subsequent rehabilitation and integration into the Australian community: Jones at [21], [54] (Kiefel CJ, Gageler, Gleeson and Jagot JJ); cf. at [85]–[86], [93] (Gordon J, dissenting).

65    Similarly, Edelman J considered that the breadth of the “gateways” to the revocation of citizenship under s 34(2)(b) is “narrowed” by the public interest condition under s 34(2)(c), ensuring that the power is exercised for the purpose of protecting the integrity of the naturalisation process: Jones at [175]. This requires the Minister to address both whether citizenship would have been granted despite the circumstances that enliven the power, as well as whether or not it is contrary to the public interest for the person now to remain an Australian citizen: Jones at [176]–[177] (Edelman J). For example, the revocation of a person’s citizenship might not be necessary to protect the integrity of the naturalisation process where the Minister is satisfied that the person is now of good character (i.e. at the time of the decision), even if the person is found not to have met the good character requirement at the time of his or her application for citizenship or when citizenship was granted, in the light of undisclosed prior criminal conduct: Jones at [179], [182] (Edelman J). Justice Steward also implicitly contemplated that s 34(2)(c) would involve consideration of circumstances and matters arising after the grant of citizenship, observing (at [201]) that the public interest condition operates to preclude “unnecessarily harsh” outcomes and (at [204]) that the length of time between conviction and consideration of the power to revoke citizenship may make it more difficult for the Minister to be satisfied that it would be contrary to the public interest for the person to remain an Australian citizen.

66    In considering the power to revoke citizenship under s 34(2)(b)(i) or (iii) of the Citizenship Act, there will inevitably be a focus on the past offending conduct and its effect on the process by which the person acquired citizenship, or permanent residency on which the grant of citizenship was based. Those provisions contain in-built materiality and causation requirements which ensure that the fraud, dishonesty or concealment in respect of which the person has been convicted must have had an effect on the integrity of the naturalisation process. The fact that the person has been convicted of an offence that attracts the powers under s 34(2)(b)(i) or (iii) may therefore go some way towards showing that it would be contrary to the public interest for the person to remain an Australian citizen, which might in turn have some influence on the exercise of the discretion whether to revoke the person’s citizenship under s 34(2).

67    Nevertheless, as is the case with the power under s 34(2)(b)(ii) considered in Jones, the considerations that are potentially relevant to the public interest condition in s 34(2)(c) are broader than the offending conduct by reason of which the person acquired citizenship. In making the “discretionary value judgment” that is called for by s 34(2)(c), it is open to the Minister to have regard to a wide range of matters or circumstances bearing upon whether or not it would be contrary to the public interest for the person to remain or continue to be an Australian citizen. Without any limitation on the potential breadth of the discretionary evaluation, this would usually encompass matters such as the period for which the person has been an Australian citizen, any rehabilitation in relation to the relevant offending conduct, any evidence of the person’s integration or ties to Australia, and any hardship likely to be caused to the person or to others as a result of the revocation of citizenship.

68    The concept of the “public interest” is usually multi-faceted and requires an evaluation of competing considerations: see McKinnon v Secretary, Department of Treasury (2005) 145 FCR 70 at [8]–[15] (Tamberlin J), with reference to authorities such as O’Sullivan v Farrer (1989) 168 CLR 210 at 216 (Mason CJ, Brennan, Dawson and Gaudron JJ). While it may be open in some cases to give greater weight or even overriding significance to particular facets of the public interest, the inquiry cannot be constrained by focusing on one aspect (e.g. the seriousness of past conduct) to the exclusion of any other consideration. An exercise of the discretion to revoke citizenship will generally involve weighing “the advantages to the Australian society of depriving the applicant of his citizenship … against any disadvantages to that society and any disadvantages and hardship likely to be caused to the applicant and other persons as the result of doing so”: see Re Prasad and Minister Assisting Minister for Immigration, Local Government and Ethnic Affairs (1993) 30 ALD 292 at 302.

69    This is not to suggest that any particular matter or circumstance should be treated as a mandatory relevant consideration in the exercise of the power to revoke a person’s citizenship under s 34(2) of the Citizenship Act. Provided that the Minister does not have regard to “extraneous” matters and does not exercise the power for an improper purpose (cf. Jones at [21], [54] (Kiefel CJ, Gageler, Gleeson and Jagot JJ), [93] (Gordon J), [171] (Edelman J)), it is largely a matter for the Minister to determine what should be taken into account in considering the public interest and exercising the discretion.

70    In the present case, in the context of the public interest consideration, the Tribunal had regard to the nature of the applicant’s offending, his failed protection visa application, the manner in which the applicant’s true identity had been detected, the impact of the applicant’ migration fraud, whether his conduct had undermined the objects of the Citizenship Act, the integrity of the immigration system, the fact of the Minister’s personal intervention, and various matters described as “residual factors”.

71    It is clear from the Tribunal’s reasons that it did not limit its consideration to the circumstances at the time of the applicant’s offending in relation to his visa applications and his citizenship application. In other words, the Tribunal was conscious that it was required to address the circumstances as at the time of its decision. The Tribunal took into account various matters that post-dated the applicant’s offending conduct and the resulting grant of citizenship, including the period during which he had maintained the deception in relation to his past identity and the fact that the fraud was “coincidentally” detected by third parties rather than having been voluntarily disclosed by the applicant. On several occasions in its reasons, the Tribunal referred whether it was “now” in, or contrary to, the public interest for the applicant to remain an Australian citizen: see T [52], [53], [68(ii)].

72    However, for the following reasons, I consider that the Tribunal erred in its construction and application of the public interest condition in s 34(2)(c) of the Citizenship Act, and misdirected itself or asked the wrong question in finding that it was contrary to the public interest for the applicant to remain an Australian citizen.

73    At some points in the Tribunal’s reasons, there is a tendency to conflate the public interest for the purposes of s 34(2)(c) with the offending conduct that enlivens the power under s 34(2)(b)(i) or (iii). After noting that it is “plainly not in the public interest” for the Department to be misled in relation to a person’s identity or character in an application for citizenship, and that it was likely that the applicant would not have been allowed to enter Australia if his migration misconduct had been known, the Tribunal found that such conduct would undermine the purposes of the Citizenship Act and that it would therefore be contrary to the public interest not to revoke his citizenship: T [46]–[47]. The Tribunal made similar comments in relation to “the public interest for government to deter prospective visa applicants from attempting to ‘game the system’ in the way this Applicant has done”, and that it followed that “it is in the public interest to revoke this Applicant’s citizenship on the basis of the extent to which his conduct has directly challenged both the integrity and administration of this country’s immigration system”: T [49]. While slightly more equivocal, the Tribunal also agreed with the Minister’s contention that the applicant’s migration fraud, by which he received two visas and a grant of citizenship to which he was not entitled, was conduct that undermined the administration of the Migration Act such that “it is contrary to the public interest for the applicant to hold citizenship as a result of that residence”: T [44].

74    It was undoubtedly relevant for the Tribunal to have regard to the public interest that is protected by the offences covered by s 34(2)(b)(i) and (iii) of the Citizenship Act and the effect of the offending conduct on the integrity of the immigration system and the naturalisation process respectively. Fraud, dishonesty or concealment, particularly in relation to a person’s identity or matters bearing upon their character, strikes at the heart of the integrity of the immigration system and the naturalisation process, particularly where such fraud is perpetuated over a lengthy period. A person who applies for citizenship by conferral must meet requirements in relation to both identity and character in order for the Minister to approve the person becoming an Australian citizen: see e.g. Citizenship Act, ss 21(2)(h), 24(3). The Minister is clearly entitled to treat offending conduct within s 34(2)(b)(i) and (iii) of the Citizenship Act as a very serious matter in reaching a state of satisfaction about whether it is contrary to the public interest for the person to remain an Australian citizen, and in exercising the discretion whether or not to revoke the person’s citizenship.

75    There is a fine line, however, between taking such matters into account when assessing the seriousness of the offending conduct that gives rise to the power to revoke the applicant’s citizenship, and equating them with the public interest in revoking his citizenship. While recognising that the Tribunal’s written reasons should not necessarily be read as reflecting a sequential reasoning process, it was nevertheless premature for the Tribunal to reach a conclusion as to whether it was in the public interest for the applicant to remain an Australian citizen based solely on the offending conduct falling within s 34(2)(b)(i) and (iii). Rather, it was necessary for the Tribunal to form the requisite state of satisfaction for the purposes of s 34(2)(c) based on all relevant circumstances that had a bearing on the public interest, potentially including matters such as the applicant’s integration into the Australian community and any rehabilitation or remorsefulness in relation to the offending conduct in question.

76    The Tribunal proceeded to consider several “residual factors” in relation to the public interest consideration. However, far from ameliorating the emphasis given to the applicant’s offending conduct in the preceding paragraphs, the Tribunal’s reasons suggest that these factors were not regarded as significant to the finding regarding the public interest, in that they were addressed “purely out of an abundance of caution and not out of any determinative compulsion”. This tends to confirm that the Tribunal had already reached its conclusion that it was contrary to the public interest for the applicant to remain an Australian citizen, based primarily if not entirely on the fact of the applicant’s offending conduct.

77    The first residual factor was the “recidivist risk assessment” contained in the expert report from Mr Watson-Munro. The Senior Member stated that he was “hard pressed to comprehend the utility of any such risk assessment in terms of this Tribunal now forming a view about whether it is, or is not, in the public interest for this Applicant to remain an Australian citizen”: T [53]. This was said to be because “[t]he present exercise to be conducted by the Tribunal is, by definition, a retrospective one”, and “[t]he question is whether, as a result of his past conduct, the public interest is best served by him not remaining an Australian citizen”: T [53] (emphasis added). The Tribunal continued (at T [54]):

It is the historical elements of the Applicant’s conduct which talk to that exercise. Future prognostications do not speak to that exercise. Therefore, whatever risk assessment of Mr Watson-Munro the Applicant now purports to rely on is of little or no relevance to that exercise. The Applicant’s conduct has involved identity fraud and false representations to government over a prolonged period. Even a low or low-medium finding of recidivist risk relating to the commission of similar conduct in future does not assist the Applicant. Even the glimmer of the perpetration of such conduct in the future would lead this Tribunal to a finding that it is not in the public interest for him to remain an Australian citizen.

(Emphasis added.)

78    In my view, the question to be addressed under s 34(2)(c) of the Citizenship Act cannot properly be characterised as purely “retrospective”, nor is it based solely on the person’s past conduct (including the offending conduct). The inquiry is capable of encompassing any matter or circumstance that might potentially bear upon whether it would be contrary to the public interest for the person to remain an Australian citizen, consistent with the statutory purpose of protecting the integrity of the naturalisation process. This includes, but is not limited to, the person’s past conduct, including the offending conduct.

79    One possible reading of the Tribunal’s reasons is that it was simply dealing with the weight to be given to an assessment about the risk that a person will reoffend in a similar manner, such as the opinion given by Mr Watson-Munro about the applicant in the present case. In many cases involving an exercise of the powers under s 34(2)(b)(i) and (iii), an assessment of the risk of recidivism might be less relevant, in circumstances where the person has already obtained the benefit of his or her offending conduct in the form of a grant of permanent residence and citizenship and where there may be no longer be any need or occasion for the person to repeat that conduct. Putting to one side the possible risk of future dishonest conduct such as identity fraud or false representations to government agencies in different contexts, there will inevitably be a focus on the benefit that was illegitimately gained by the person as a result of his or her past conduct. It is in that sense that evidence or a finding that there is a low recidivist risk relating to the commission of similar conduct in the future would not necessarily assist the applicant in relation to the public interest condition. The absence of a risk of reoffending may not itself diminish concerns that allowing the person to retain citizenship would reward his or her fraudulent conduct and the perpetuation of that fraud at least until such time as he or she acquired citizenship.

80    Nevertheless, the difficulties expressed by the Tribunal in understanding the utility or relevance of the recidivist risk assessment of Mr Watson-Munro do not sit comfortably with the previous decisions of this Court when setting aside the first decision made by the Tribunal, where the Minister successfully argued that the Tribunal had erred by failing to deal with an argument that there was an ongoing risk that the applicant would engage in further dishonest conduct and with the evidence in support of that argument: see Waraich at [23] (Anastassiou J); Wariach (FC) at [69]–[72] (Bromberg, Katzmann and Cheeseman JJ).

81    I accept that the Tribunal did not necessarily treat the applicant’s offending conduct as determinative of the public interest condition. The Tribunal had regard to the applicant’s past conduct more generally, including his perpetuation of the identity fraud until its detection and his expressions of remorse for the offending conduct. However, in brushing aside evidence about “protective factors” in so far as they were said to militate against the applicant’s recidivist risk (T [56]), the Tribunal failed to recognise that matters such as the applicant’s history of lawful employment and the support of his wife and family might be relevant more generally to the consideration of the public interest for the purposes of s 34(2)(c), including as an aspect of the applicant’s rehabilitation and integration into the Australian community.

82    In that context, the following statement by the Tribunal betrays error (T [56]):

What the Applicant has done – ‘migration misconduct’ – has been done. Only the circumstances of that past conduct can now inform this Tribunal on the specific question of what is/is not in the public interest.

This illustrates the unduly narrow focus adopted by the Tribunal to the public interest consideration under s 34(2)(c), which was treated as constrained by reference to the circumstances of the offending conduct (i.e. the “migration misconduct”) and only that past conduct. The applicant’s offending conduct may have been serious, and may have significantly impaired the integrity of the processes that the power conferred by s 34(2) is designed to protect. However, the inquiry did not end there; the Tribunal was required to consider the question whether, at the time that the power was exercised, it was contrary to the public interest for the applicant to remain an Australian citizen, having regard to the seriousness of the offending conduct together with any other matters or circumstances that were relevant to that question.

83    The second “residual factor” was the supportive evidence from the applicant’s wife, which the Tribunal stated was “best dealt with on the basis of significant caution”: T [57]. This was partly due to her motivation to assist the applicant, which had resulted in “opaqueness and inconsistency” in her evidence: T [58]. The Tribunal ultimately regarded her as “a victim” of the applicant’s lack of candour towards her during their relationship, such that her evidence did not assist the Tribunal in forming any view about whether it was in the public interest for the applicant to be an Australian citizen: T [60]. While it might be said that this indicates that the Tribunal was at least open to considering evidence of family support as relevant to the public interest under s 34(2)(c), on balance it is insufficient to rectify the myopic perspective that had been adopted by the Tribunal in earlier paragraphs.

84    The third “residual factor” was the evidence given by the applicant’s daughter and other friends or colleagues of the applicant. The Tribunal acknowledged that their evidence contained “a consistent theme of the Applicant being deserving of Australian citizenship based on their respective assessments of the quality of person they say the Applicant is”: T [62]. However, the Tribunal stated that this evidence did not assist its determination whether it was in the public interest for the applicant to hold Australian citizenship, without any elaboration of its underlying reasons for reaching that conclusion: T [62]. Perhaps it was because the Tribunal regarded the evidence, although well-intentioned, as no more than the subjective views of persons who had a close association with the applicant. Nevertheless, there is no apparent basis for completely discounting such evidence in the consideration whether, at the time of the Tribunal’s decision, it was in the public interest for the applicant to remain an Australian citizen. It can be inferred that the Tribunal did so because the evidence was regarded as irrelevant to the circumstances of the applicant’s past “migration misconduct”.

85    The Tribunal’s summary of its findings on the public interest consideration under s 34(2)(c) is consistent with the approach revealed earlier in its reasons, namely that the Tribunal focused entirely on the circumstances of the applicant’s offending conduct. Relevantly, the Tribunal stated (at T[68]) that “[w]ith reference to the factors informing a decision-maker about whether it is contrary to the public interest for the Applicant to remain an Australian citizen”, it had made findings about, first, “the seriousness of the Applicant’s offending” and, second, “how it [i.e. the applicant’s offending] now militates in favour of a finding that it is contrary to the public interest for him to remain an Australian citizen”.

86    The Tribunal went on to consider the exercise of the discretion whether to revoke the applicant’s citizenship under s 34(2) of the Citizenship Act. However, that discretion would only arise once the Tribunal was lawfully satisfied that it would be contrary to the public interest for the applicant to remain an Australian citizen, and the exercise of the discretion would be influenced by its finding on that jurisdictional fact: see Waraich at [58]–[59] (Bromberg, Katzmann and Cheeseman JJ); Minister for Immigration, Citizenship and Multicultural Affairs v Pulini [2024] FCA 541 at [56]–[57] (Rangiah J). Accordingly, the basis on which the Tribunal considered the discretionary aspects of the power conferred by s 34(2) is not capable of curing any legal error in forming the requisite state of satisfaction on the public interest under s 34(2)(c).

87    In any event, the Tribunal’s consideration of the discretion was similarly influenced by its focus on the applicant’s past offending conduct. The list of propositions set out at paragraph [64] of the Tribunal’s reasons were all concerned with the circumstances of that “migration misconduct”. In exercising the discretion to revoke the applicant’s citizenship, the Tribunal accepted the Minister’s contention that “ultimately [it] comes down to the applicant not being allowed to bare [sic] the fruits of his crimes”: T [65]. This may have been an important consideration that was entitled to be given some weight in the exercise of the discretion, particularly given the statutory purpose of protecting the integrity of the naturalisation process. However, it should not have been treated as the only consideration bearing on the exercise of the discretion, just as the circumstances of the past offending conduct did not exhaust the consideration of the public interest under s 34(2)(c).

88    The additional “elements” mentioned by the Tribunal in paragraph [66] of its reasons were regarded as “of little or no moment” with respect to either the public interest consideration or the exercise of the discretion — these included “the Applicant’s remorse and asserted exemplary behaviour”, whether the applicant might be rendered stateless, whether the applicant risked deportation as a result of visa cancellation, whether there was any adverse impact on the best interests of his two minor children, and whether it would be open to the applicant to apply for Australian citizenship in the future: T [66]. The Tribunal made findings on some of these matters, but it appears to have treated them as incapable of having any bearing on its decision. That was reiterated in the Tribunal’s statement that none of the additional factors supported any different finding or militated against its findings on the public interest question or the exercise of the discretion: T [67]. When read in the context of the Tribunal’s reasons as a whole, this conclusion cannot be treated as simply a finding as to the weight to be given to the additional factors. Rather, it was consistent with the Tribunal’s overall approach of confining its assessment to the circumstances of the applicant’s past offending conduct, to the exclusion of any other matters or circumstances which might bear upon whether or not it was contrary to the public interest for the applicant to remain an Australian citizen, or whether or not the discretion should be exercised to revoke the applicant’s citizenship.

89    In oral submissions, counsel for the Minister emphasised that the applicant did not ultimately press Ground 3(b) of the originating application and statement of claim dated 5 January 2023, by which it had been alleged that the Tribunal erred by failing to have regard to evidence and submissions made by the applicant about his contributions to, and the regard in which he was held, in the Australian community. It was argued that the abandonment of that Ground somehow limited Ground 1 such that it did not encompass any question as to whether the Tribunal should have considered the applicant’s contributions or rehabilitation in respect of the public interest under s 34(2)(c). Rather, the Minister submitted that Ground 1 was concerned only with whether Mr Watson-Munro’s report should have been taken into account by the Tribunal.

90    In my view, this is an artificially constrained approach to Ground 1, which alleges that the Tribunal misconstrued the “public interest” test in s 34(2)(c) by finding that the assessment was “by definition, a retrospective one”. Although the ground is expressed by reference to paragraphs [53]–[54] of the Tribunal’s reasons, which dealt with the “recidivist risk assessment” of Mr Watson-Munro, and alleges that the Tribunal wrongly treated the likelihood of the applicant committing further offences as of little or no relevance to the consideration of the public interest, those matters were relied upon to demonstrate the erroneous construction of s 34(2)(c) that was adopted by the Tribunal. In my view, that ground is established and is borne out by a consideration of the Tribunal’s reasons as a whole.

91    For completeness, and before leaving this topic, I have some reservations about the correctness of the Tribunal’s approach to the “personal intervention of the Minister” as a discrete factor in support of its finding that it was contrary to the public interest for the applicant to remain an Australian citizen (T [50]–[52]), and further as a factor that militated in favour of exercising the discretion to revoke the applicant’s citizenship (T [64(d)]). This approach was ostensibly based on comments made by Downes J, as the President of the Tribunal, in separate reasons given in Visa Cancellation Applicant v Minister for Immigration and Citizenship [2011] AATA 690 at [86], [90].

92    The comments made by Downes J in Visa Cancellation Applicant were in the context of considering how the Tribunal, as an administrative decision-maker, arrives at the preferable decision in the exercise of a general discretion, including where its evaluation is informed by community standards or values. After referring to a series of decisions made by the Tribunal which had subsequently been set aside by the Minister under s 501A of the Migration Act on the basis that the refusal or cancellation of the visa was “in the national interest”, Downes J noted (at [86]) that “these cases suggest that with respect to some recent decisions of the Tribunal, the Minister, where he has the right to make the final decision, has formed the opinion that community values or standards have pointed in favour of cancelling visas when the Tribunal has come to a different conclusion” (emphasis added). Justice Downes reasoned that the Tribunal should take into account such matters in assessing what is in the national interest and what is required by community values or standards and that, as an aspect of good administration, “[t]he opinion of a Minister on a matter of discretion and any supporting reasons should accordingly be carefully considered and evaluated by the Tribunal before it comes to a different decision”: Visa Cancellation Applicant at [90].

93    Justice Downes’ comments in Visa Cancellation Applicant are arguably inapposite in a case such as the present. The President was addressing the power to refuse or cancel visas under s 501 of the Migration Act, which is required to be exercised in accordance with any written directions given by the Minister and is subject to a Ministerial override in the national interest under s 501A. Paragraph [87] of the President’s reasons, which was not referred to by the Tribunal in the present case, emphasised the “special position” in which the Minister was placed under s 501A and stated that “[a] necessary consequence of the Minister having this unusual power to overrule the [T]ribunal is that the Tribunal should take note of occasions in which the power is exercised”. However, in contrast to s 501A of the Migration Act, there is no analogous Ministerial override power in relation to decisions made by the Tribunal on review of a decision to revoke a person’s citizenship under s 34(2) of the Citizenship Act, nor are there any Ministerial guidelines or directions on the matters that should be considered in the exercise of that power.

94    The problematic aspect of the Tribunal’s reliance on Visa Cancellation Applicant in the present context is that the personal opinion of the Minister to which the Tribunal had regard in finding that it was contrary to the public interest for the applicant to remain an Australian citizen and in exercising the discretion to revoke citizenship was encompassed in the very decision that was subject to merits review by the Tribunal under the Administrative Appeals Tribunal Act 1975 (Cth). The Tribunal was required to conduct that review de novo, without any particular deference to the primary decision. Accordingly, it may be doubted whether it was appropriate for the Tribunal to take into account the opinion of the Minister in making the decision to revoke the applicant’s citizenship or the fact that the Minister had personally made that decision.

95    However, given that this aspect of the Tribunal’s decision was not challenged by the applicant’s grounds of review, it would be inappropriate to express a concluded view on the question.

96    For the reasons set out above, Ground 1 is upheld.

Ground 2: Whether the Tribunal erred by purporting to apply a principle of “general deterrence”

97    By Ground 2, the applicant alleges that, when deciding to affirm the decision to revoke the applicant’s citizenship, the Tribunal purported to exercise a function that is essentially and exclusively judicial in character, in that it proceeded on the basis that the power to revoke citizenship may be exercised for the purposes of general deterrence: see T [49], [64(c)].

98    The applicant submitted that “[d]eterrence – like punishment, retribution, and denunciation – is not a function of an executive body such as the Tribunal; it is an exclusively judicial function”, relying on Alexander at [82] (Kiefel CJ, Keane and Gleeson JJ), [240], [251] (Edelman J); Benbrika (No 2) at [23] (Kiefel CJ, Gageler, Gleeson and Jagot JJ), [66] (Gordon J); and Jones at [54]–[55] (Kiefel CJ, Gageler, Gleeson and Jagot JJ), [94] (Gordon J), [148] (Edelman J), [188], [199] (Steward J). Accordingly, the applicant argued that the Tribunal had erred by taking into account in the exercise of its discretion that “there is a requirement for general deterrence of such serious conduct in relation to identity fraud that strikes at the heart of this country’s migration system and the objects of the legislation that governs it”.

99    In the course of oral submissions, counsel for the applicant made it clear that this ground does not involve any challenge to the constitutional validity of s 34(2) of the Citizenship Act. Rather, the applicant submits that the Tribunal’s decision exceeded the statutory limits on the power conferred by s 34(2), albeit that those limits are informed by implied limitations derived from Chapter III of the Constitution. In other words, the applicant contended that the Tribunal erred by exercising the power for an improper or extraneous purpose, or perhaps by taking into account an irrelevant consideration.

100    Accordingly, the question for determination is not precisely the same as that raised where there is a challenge to the validity of a statutory provision conferring on the executive a power that is alleged to be exclusively judicial in contravention of Chapter III of the Constitution. In that context, the question is whether the relevant power is prima facie punitive and, if so, whether it can be justified as being reasonably capable of being seen to be necessary for a legitimate and non-punitive purpose: see YBFZ v Minister for Immigration, Citizenship and Multicultural Affairs [2024] HCA 40; 99 ALJR 1 at [18], [64], [83] (Gageler CJ, Gordon, Gleeson and Jagot JJ), [140] (Edelman J), [236]–[238] (Beech-Jones J); cf. at [181]–[183] (Steward J). In the present context, however, the question is not one of characterisation of a statutory power, but rather an inquiry into the purpose for which the power was exercised by the Tribunal. That is ultimately a question of fact as to whether the decision to revoke the applicant’s citizenship was made within the statutory limits on the power conferred by s 34(2) of the Citizenship Act. It does not directly raise questions of “justification” in the constitutional sense.

101    The Minister accepts that punishing criminal guilt is an exclusively judicial function, and that the Tribunal therefore cannot exercise the power under s 34(2) for a punitive purpose without committing an error of the kind described in Jones at [54]. However, the Minister contended that a fair reading of the Tribunal’s reasons shows that it did not revoke the applicant’s citizenship for a punitive purpose, but rather for the legitimate and proper purpose of protecting the integrity of the naturalisation process.

102    While acknowledging that the Tribunal used the words “deter” and “deterrence” at several points in its reasons (T [49] and [64(c)]), the Minister submitted that such language was not indicative of any intention to achieve a punitive purpose. The Tribunal’s observation at T [49] that “it serves the public interest for government to deter prospective visa applicants from attempting to ‘game the system’ in the way this Applicant has done” was, in the Minister’s submission, directed to the integrity of the immigration system and public confidence in the administration of that system. The relevant factor referred to at T [64(c)] was said to be no more than a summary or extension of the Tribunal’s earlier observations, endorsing “the proposition that identity fraud struck at the heart of Australia’s migration system and the objects that governed it, and [finding] that there was a need for such serious conduct to be generally deterred”. The Minister submitted that this did not involve inflicting punishment on the applicant and was not impermissible.

103    In my view, the Minister’s submissions should be accepted.

104    It is uncontroversial that, following the High Court’s decision in Jones, the power conferred by s 34(2) of the Citizenship Act cannot be exercised for “an extraneous and improper purpose”, and this prevents the Minister from invoking the power to revoke the Australian citizenship of a person who was 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”: Jones at [54] (Kiefel CJ, Gageler, Gleeson and Jagot JJ); see also at [94] (Gordon J), [171], [181] (Edelman J), [199] (Steward J).

105    Nevertheless, concepts related to deterrence are not uniquely or exclusively associated with the punishment of criminal guilt. They can also be associated with the imposition of administrative consequences which operate as a disincentive to breaches of a normative standard. The fact that a decision-maker exercising an administrative power takes into account considerations of “deterrence”, in the sense of the tendency of the exercise of the power to provide a disincentive to a person or persons from engaging in a particular class of conduct, will not necessarily dictate a conclusion that the power must have been exercised for the purposes of imposing punishment for reprehensible conduct. That will depend on the nature of the power and the circumstances in which it is exercised, including whether the decision also involves elements of retribution or denunciation.

106    In Jones, the plurality contemplated that s 34(2) of the Citizenship Act “would not authorise the Minister to revoke of the Australian citizenship of someone convicted of a serious crime for a purpose of retribution, denunciation or deterrence”: Jones at [55] (Kiefel CJ, Gageler, Gleeson and Jagot JJ), [199] (Steward J). Similarly, Gordon J contemplated that matters “such as retribution, denunciation or deterrence” may not be taken into account in exercising the power under s 34(2)(b)(ii): Jones at [94]. Although these purposes or matters were expressed disjunctively, it is not clear that an exercise of the power for a purpose of deterrence alone, without any element of retribution or denunciation, would be sufficient to take the decision beyond statutory limits. In that regard, I note that the purposes of retribution, denunciation and deterrence were referred to in conjunctive terms by Gordon J in Benbrika (No 2) at [66].

107    It should also be noted that the plurality in Jones was addressing the revocation power under s 34(2)(b)(ii), that is, the revocation of the citizenship of “someone who was convicted of a serious crime” (cf. the concept of “serious offence” within the meaning of s 34(2)(b)(ii) and (5)): Jones at [54]–[55]. Similarly, the observations made by Gordon J were directed to the power in s 34(2)(b)(ii): Jones at [94]. The High Court was not directly concerned in Jones with the powers under s 34(2)(b)(i) or (iii) to revoke the citizenship of someone convicted of an offence against s 50 of the Citizenship Act or migration-related fraud. As discussed above, those powers are arguably more directly connected to the non-punitive purpose of protecting the integrity of the naturalisation process, which might render it less likely that their exercise will be characterised as punitive even if the revocation of citizenship is in response to the conduct comprising the relevant offence. It is also relevant that the powers will only arise in circumstances where the offence involved fraud, dishonesty or concealment which had a material effect on the process by which the person acquired citizenship.

108    In Alexander, the majority of the High Court held that s 36B of the Citizenship Act invalidly conferred on the Minister an exclusively judicial power of punishing criminal conduct by way of retribution for such conduct. While the judgments also contain references to deterrence as one of the traditional aims of punishment (Alexander at [78], [82] (Kiefel CJ, Keane and Gleeson JJ), [112] (Gageler J), [240], [251] (Edelman J)), such references were generally associated with other objects of criminal punishment such as retribution, denunciation or rehabilitation. Indeed, Kiefel CJ, Keane and Gleeson JJ seem to have placed greater emphasis on retribution as being characteristic of punishment under the criminal law: see Alexander at [82]; see also Benbrika (No 2) at [23] (Kiefel CJ, Gageler, Gleeson and Jagot JJ). Justice Gageler also concluded that, properly construed, the purpose of s 36B of the Citizenship Act was “retribution”: Alexander at [163]. In considering the nature of punishment, Edelman J focused on the question whether the purpose of the law was to sanction proscribed conduct, as opposed to using such conduct merely as a factum that informs a decision to impose harsh consequences for non-punitive purposes concerning the public interest: Alexander at [241] ff. More recently, in CZA19 v Commonwealth [2025] HCA 8, Edelman J concluded that detention for the purposes of processing a visa application is not punitive because “none of the purposes is concerned with the purposes of retribution and deterrence, which include responses to past commission of crimes based on anticipation of future commission of crime” (emphasis added).

109    The High Court considered such concepts in YBFZ, in which a majority of the Court held that the imposition of monitoring and curfew conditions in a bridging visa was contrary to Chapter III of the Constitution and invalid. The majority concluded that the detrimental effect of those conditions on individual liberty and bodily integrity, which was prima facie punitive in character, could not be justified as reasonably necessary for the protection of the Australian community from harm: YBFZ at [81]–[82] (Gageler CJ, Gordon, Gleeson and Jagot JJ).

110    Several of the judgments in YBFZ gave passing consideration to the manner in which a punitive purpose may be identified. Justice Edelman considered (at [165]) that the purpose of the bridging visa conditions was “the deterrence of crime”, which was “based on past criminal activity”, and was therefore “a punitive purpose”. Despite the reference to “deterrence”, the conclusion appeared to rest on whether the conditions involved the imposition of a sanction as a consequence of or based upon past offending, which is consistent with the views previously expressed by Edelman J in Alexander at [186], [238]–[240]; see also CZA19 at [91] (Edelman J). On that approach, deterrence is one of the “secondary” considerations involved in the imposition of criminal punishment (the primary consideration being “what is thought to be deserved for the conduct”): Alexander at [240] (Edelman J). Justice Steward appeared to give greater emphasis to notions of “retribution” for past offending: YBFZ at [178], [217], [220]–[221].

111    Some observations made in YBFZ by Beech-Jones J, who was in dissent in the result, might be taken to suggest that an object of deterrence is itself capable of revealing a punitive purpose. Thus, his Honour stated (at [249]):

Ultimately, the question of whether a particular statutory regime that expressly or impliedly promotes the “protection” of the community through deterrence in fact pursues a “non-punitive purpose” turns on how the scheme seeks to effect that protection. If that “protection” is sought to be achieved by imposing a detriment on one person to deter or dissuade others from engaging in criminal conduct, then it is punitive. If the protection is sought to be achieved by imposing a detriment on a person who previously engaged in anti-social conduct to deter or dissuade them simpliciter from repeating that conduct, then it is also punitive. However, if a detriment is imposed on a person as a means of deterring or dissuading them from engaging in anti-social conduct simply because it increases their risk of detection or minimises their opportunity to offend, then that is, or at least may be, a legitimate and non-punitive form of protection.

Later in his judgment, Beech-Jones J framed the analysis as follows (at [283]):

The real issue at this point of the analysis is whether the power conferred by cl 070.612A could be properly exercised to enable the imposition of the monitoring or curfew condition on a visa holder to deter others from offending or engaging in criminal conduct, or to bring home to that holder the consequences of their own past offending or such conduct (or to denounce the past conduct of a visa holder or exact retribution). A power that could be exercised to secure protection in any of those ways would have a punitive aspect.

112    However, these remarks by Beech-Jones J in YBFZ must be read in their context, which was concerned with a legislative measure that was ostensibly concerned with the protection of the Australian community from harm. Section 34(2) of the Citizenship Act, and in particular s 34(2)(b)(i) and (iii), are directed to a different purpose, namely the protection of the integrity of the naturalisation process (which encompasses the integrity of the immigration system in so far as it bears upon the naturalisation process). The constitutional validity of s 34(2), as a provision that is reasonably capable of being seen as necessary for that legitimate non-punitive purpose, was upheld in Jones, albeit with the qualification that the power conferred by s 34(2) must be exercised for that non-punitive purpose and not for the purpose of punishing past offending conduct. In the present context, the relevant detriment imposed by an exercise of the power is directly connected to the non-punitive purpose, in so far as it strips the person of his or her illegitimately obtained citizenship. Further, in so far as the offending conduct directly undermines the integrity of the naturalisation process, the deterrence of such conduct is an inherent aspect of protecting the integrity of that process, and thereby achieving or advancing the legitimate non-punitive purpose to which the power is directed.

113    It can be accepted that the nature of the consequence imposed is highly relevant to the proper characterisation of the purpose for which a power is conferred or exercised. In that context, revocation of citizenship is a severe consequence that is traditionally or historically associated with punishment and, as with involuntary detention, may give rise to a “default characterisation” as punitive: Alexander at [72]–[75] (Kiefel CJ, Keane and Gleeson JJ), [167]–[172] (Gordon J), [248] (Edelman J); Benbrika (No 2) at [63] (Gordon J); YBFZ at [16]–[17] (Gageler CJ, Gordon, Gleeson an Jagot JJ). But it is also accepted that there are exceptions in which citizenship may be revoked (or a person may be involuntarily detained) for a legitimate non-punitive purpose. This includes the power under s 34(2) of the Citizenship Act, which is conferred for, and must be exercised for, the purpose of protecting the integrity of the naturalisation process.

114    Accordingly, the ultimate question will be whether the power to revoke citizenship under s 34(2)(b)(i) or (iii) has in fact been exercised for the purpose of protecting the integrity of the naturalisation process. The revocation of citizenship under s 34(2)(b)(i) or (iii) will necessarily be in response to the commission of the offence involving fraud, dishonesty or concealment which provides the “gateway” to the power, once the Minister is satisfied that it would be contrary to the public interest for the person to remain an Australian citizen. The fact that the Minister (or the Tribunal) has regard to the deterrence of similar conduct, either by the specific person or by other persons, does not prevent the power from having been properly exercised for the purpose of protecting the integrity of the naturalisation process. One of the principal means of achieving that purpose is to deter that person or others from engaging in fraud, dishonesty or concealment in order to obtain a grant of citizenship illegitimately. In my view, it is generally permissible for the Minister (or the Tribunal) to have regard to such deterrence as a factor in the protection of the integrity of the naturalisation process, provided that it is not associated with a substantial purpose of pursuing retribution for or denunciation of the specific conduct engaged in by the person whose citizenship is revoked. (In relation to denunciation, see e.g. YBFZ at [307] (Beech-Jones J).)

115    In some respects, the concept of deterrence might be better expressed in this context as discouraging persons from engaging in particular classes of conduct that are regarded as inimical to the integrity of the administrative process of applying for and obtaining citizenship by conferral. Such language was used by the plurality in Jones when referring to the predecessor provision to s 34(2)(b)(ii), which created “a disincentive for an applicant for Australian citizenship to conceal prior criminal conduct during the application process” by ensuring that such conduct would not remain unconsidered in the ministerial determination of whether the person was of the requisite character to be granted Australian citizenship by reason of “quirks of timing” in the commencement and conclusion of criminal proceedings: Jones at [20] (Kiefel CJ, Gageler, Gleeson and Jagot JJ). The point is that the concept of deterrence in that sense is not anathema to the non-punitive purpose of protecting the integrity of the naturalisation process, and is therefore not itself an irrelevant consideration nor indicative of an improper purpose in the exercise of the power.

116    This is consistent with the approach adopted at first instance in Waraich and on appeal in Waraich (FC), in which it was held that the first Tribunal’s misunderstanding and misapplication of s 34(2)(c) was evidenced by, among other things, its failure to take into account the Minister’s submissions about deterrence: see Waraich at [45] (Anastassiou J); Waraich (FC) at [46] (Bromberg, Katzmann and Cheeseman JJ).

117    There has been previous judicial consideration of the question whether and to what extent the concept of general deterrence may be a permissible consideration in the context of visa refusal or cancellation decisions under s 501 of the Migration Act. While it is open to the Parliament to confer power to refuse or cancel a visa by reference to the fact of prior criminal offending (see Falzon v Minister for Immigration and Border Protection (2018) 262 CLR 333 at [47]–[48] (Kiefel CJ, Bell Keane and Edelman JJ), [89] (Gageler and Gordon JJ), [94] (Nettle J)), there may nevertheless be limits on the purposes for which such a power may be exercised.

118    In Djalic v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 139 FCR 292, the Full Court accepted that an exercise of the power to cancel a visa held by a non-citizen could be ultra vires if the decision-maker purported to cancel the visa in order to punish the non-citizen, and not for a legitimate objective such as the protection of the Australian community: at [66(6)] (Tamberlin, Sackville and Stone JJ). However, the Court did not accept that taking into account the deterrent effect of a visa cancellation decision amounted to the imposition of punishment for the non-citizen’s conduct, stating that “the very point of taking account of general deterrence as a factor in making a cancellation decision is to enhance the safety and well-being of the Australian community by discouraging non-citizens from engaging in criminal conduct”: Djalic at [75]. While leaving open whether a cancellation decision made for the sole or substantial purpose of deterring others from criminal conduct might potentially reveal a punitive purpose, the Court concluded that the deterrent effect of cancelling a visa was not an irrelevant consideration, and that it was permissible for the Minister to have regard to community expectations that non-citizens will obey the law while in Australia: Djalic at [76]–[77]. Thus, the Court stated (at [75]):

The mere fact that deterrence also happens to be an element that courts take into account in sentencing offenders does not convert a cancellation decision under s 501(2) from a protective to a punitive measure.

119    The views expressed in Djalic were subsequently endorsed by Moore, Branson and Emmett JJ in Tuncok v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 172 at [39]–[44]; see also Kamha v Australian Prudential Regulation Authority (2005) 147 FCR 516 at [64], [73]–[75] (Emmett, Allsop and Graham JJ).

120    In NBMZ v Minister for Immigration and Border Protection (2014) 220 FCR 1 at [29], Allsop CJ and Katzmann J recognised that deterrence might be a legitimate consideration in the exercise of a power to refuse to grant a visa to a person who had committed a criminal offence, on the basis that the refusal of the visa “may act as a disincentive to others and in this way protect other detainees or the Australian public”. However, their Honours noted that “care needs to be taken”, referring to authority that “a deportation order made for the sole or substantial purpose of deterring others would serve (impermissibly) as punishment of the criminal”.

121    In ENT19 v Minister for Home Affairs (2021) 289 FCR 100, the appellant argued that a decision to refuse to grant him a visa was legally unreasonable because, among other things, it was made for the substantial purpose of deterring others and therefore served impermissibly as a punishment of him. In rejecting this argument, Wheelahan J (with whom Collier J agreed) stated (at [153]):

The authorities concerning the power of deportation recognise that deterrence of others may be a relevant consideration where the power of deportation is otherwise exercised for the purposes of community protection. What might be precluded, consistent with the Full Court’s reasoning in Djalic, is the exercise of a power of visa cancellation or deportation for the sole or substantial purpose of punishment, absent some other legitimate objective. See also, NBMZ v Minister for Immigration and Border Protection (2014) 220 FCR 1 at [28]-[31] (Allsop CJ and Katzmann J). A discretionary decision to cancel a visa, or to deport a person who has settled in the Australian community, is distinguishable from a decision involving the refusal of a visa, where the applicant for the visa has never lived in the community outside custody. In the latter circumstance, the decision involves whether the applicant should have permission to enter the Australian community.

122    On the particular facts in ENT19, Wheelahan J held (at [154]) that the Minister had permissibly had regard to considerations of general deterrence as a means by which to further the national interest in protecting and safeguarding Australia’s territorial and border integrity and maintaining public confidence in the protection visa program. The Minister’s decision was, however, set aside on other grounds.

123    In dissent on this point, Katzmann J concluded in ENT19 (at [133]) that the Minister’s decision had been made for a punitive purpose, on the basis that “a substantial, if not the sole, reason the Minister refused to grant the appellant a visa was to deter people smugglers”, and that Minister had “determined that the appellant should be further punished by being denied a protection visa so as to give effect to considerations of general deterrence, when the appellant had already been sentenced on that basis”. Her Honour went so far as to suggest (at [135]) that “deterrence might well be said to be an irrelevant consideration in determining whether to grant a visa, even on national interest grounds”. However, that suggestion was clearly a minority view in ENT19.

124    Accordingly, the preponderance of authority in the context of visa refusal or cancellation establishes that the Minister can have regard to general deterrence as a means of achieving a non-punitive purpose such as the protection of the community. Of course, the power to revoke citizenship is qualitatively different to the power to refuse or cancel a visa, and the nature and severity of citizenship revocation can be relevant to whether the power is characterised as punitive. Nevertheless, I consider that an analogous approach is capable of being applied to the power under s 34(2)(b)(i) and (iii) of the Citizenship Act to revoke a person’s citizenship based on his or her conviction of an offence of fraud, dishonesty or concealment affecting the acquisition of citizenship. It is permissible for the Minister or the Tribunal to have regard to considerations of general deterrence as an aspect of protecting the integrity of the naturalisation process, and to do so is consistent with the exercise of the power for a legitimate non-punitive purpose.

125    Counsel for the Minister drew the Court’s attention to the decision in Pulini, in which the Tribunal had addressed a submission made by the Minister 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”: Pulini at [24], [34]. The Tribunal accepted that deterrence was a valid consideration but, on the particular facts, did not consider that revocation of the respondent’s citizenship had been demonstrated to be “an effective deterrent tool”: ibid. On an appeal to this Court, Rangiah J relevantly stated (at [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.

(Emphasis added.)

126    In my view, this obiter comment in passing by Rangiah J should not be taken to mean that general deterrence can never be a relevant consideration in the exercise of the power to revoke citizenship under s 34(2)(b)(i) and (iii). To the extent that it was so intended, I would respectfully disagree. However, the position may be different where the language of the Minister or the Tribunal “strays into the realm of denunciation and retribution”, such as by “revoking the citizenship of a person who is not ‘worthy’ or not ‘deserving’ of Australian citizenship”: Pulini at [76] (Rangiah J). That is not to say that the Minister or the Tribunal cannot have regard to the aim of depriving the person of the “fruits” of his or her fraud, deception or concealment by stripping him or her of citizenship that would not otherwise have been acquired: cf. Jones at [51]. Each case will turn on its own particular facts.

127    In the present case, the Tribunal did no more than have regard to considerations of general deterrence for the purpose of protecting the integrity of the naturalisation process. I do not accept the applicant’s submission that the Tribunal should be understood as having used a “term of art” inherently associated with notions of criminal punishment. When the Tribunal’s reasons are read fairly and in context, the reference at T [49] to deterring prospective visa applicants from “gaming the system” — that is, from engaging in migration-related fraud for the purposes of obtaining permanent residence and ultimately citizenship — was directed to the purpose of protecting the integrity of the immigration system, and public confidence in its administration. This is an important aspect of the public interest to which s 34(2)(c) is directed, and is consistent with the legitimate purpose for which the powers under s 34(2)(b)(i) and (iii) are conferred. The subsequent reference at T[64(c)] to general deterrence of “such serious conduct in relation to identity fraud that strikes at the heart of this country’s migration system and the objects of the legislation that governs it” was an application of the findings made at T [49] as a factor in the exercise of the residual discretion whether to revoke the applicant’s citizenship, and was equally consistent with the purpose of protecting the integrity of the naturalisation process.

128    Accordingly, Ground 2 is dismissed.

Ground 3: Whether the Tribunal failed to consider evidence and submissions regarding possible visa cancellation and removal from Australia

129    By Ground 3, the applicant alleges that the Tribunal, in finding that the applicant did not risk deportation or removal from Australia as the result of the cancellation of his ex-citizen visa, failed to have regard to evidence and submissions that the Minister was exploring the possibility of cancelling the applicant’s ex-citizen visa in the event that decision to revoke his citizenship was affirmed.

130    The Tribunal addressed the applicant’s risk of “deportation” in the context of miscellaneous factors relating to the public interest and the exercise of discretion which were considered by the Tribunal “for the sake of completeness”: T [66]–[67]. The Tribunal found that the applicant did not risk deportation (i.e. removal) as a result of the cancellation of his currently held visa, stating that “[w]hile such a scenario remains a technical possibility, the question goes no higher than speculation”, to which it would be “unsafe to allocate any level of determinative weight”: T [66].

131    Section 35 of the Migration Act provides that the applicant was taken to have been granted an ex-citizen visa upon him ceasing to be an Australian citizen. The applicant submitted that his concern regarding the risk that his visa would be cancelled and that he would be removed from Australia was supported by evidence before the Tribunal that the Department had been “exploring” the possibility of cancelling his ex-citizen visa under either s 109 or s 501 of the Migration Act.

132    The evidence in question included a number of heavily-redacted documents that were released to the applicant under the Freedom of Information Act 1982 (Cth). The documents evidenced that, on 5 February 2018, the Citizenship Operations – Revocation Team had referred several persons including the applicant to the General Cancellations Network “for consideration of cancellation of their ex-citizen visas”. The email inaccurately stated that the period in which to apply to the Tribunal for review of the citizenship revocation decision had passed, and that the applicant had not applied for review. On the following day, these cases were referred to the National Character Cancellation Centre (NCCC), with a request to “review and advise if you have grounds to consider any of these cases”. An officer in the General Cancellation Network advised the NCCC on 7 February 2018:

It appears that GCN may have grounds to consider [redacted] and Mr WARAICH [for visa cancellation], however we thought we would refer them to NCCC first to review before we pursue any further. If NCCC determine that there are grounds under s501 for these cases then GCN will not pursue out consideration further, however we will continue if you advise that you do not have any grounds.

The NCCC officer responded that the applicant would be referred to its “liability team” for further investigation. On 7 February 2018, the applicant lodged with the Tribunal his application for review of the Minister’s decision to revoke his Australian citizenship.

133    On 28 February 2018, a senior legal officer in the Department’s “AAT & Removals Injunction Litigation Section” sent an email to an address or group called “Citizenship Litigation”, advising that the applicant had lodged an application for review of the citizenship revocation decision. The legal officer proceeded to send updates regarding the dates on which the matter was listed for a case management conference and for hearing by the Tribunal. On 25 June 2018, after the matter had been listed for hearing by the Tribunal on 13–14 August 2018, the legal officer sent an email to “Visa Cancellations” requesting an “updated status on Mr Waraich’s visa cancellation”. On the following day, an officer in the General Cancellations Network sent an email to the “Cancellations Allocation & Support Team” setting out the factual details of the applicant’s case. It was agreed that the General Cancellations Network would liaise directly with the Legal area of the Department. An officer in the General Cancellations Network then sent an email to the senior legal officer in the “AAT & Removals Injunction Litigation Section”, the contents of which are largely redacted, as are the contents of the email sent by the legal officer in response, other than noting the current status of the proceedings before the Tribunal.

134    The applicant also relied on Mr Munro-Watson’s report, which contained references to the applicant’s vulnerability to removal from Australia and the impacts that this would have on his family. However, to the extent that Mr Munro-Watson’s report addressed the effects of the applicant’s possible removal from Australia, this had no direct relevance to the question whether the Department was in fact considering the cancellation of the applicant’s visa nor on the likelihood that the applicant would be removed from Australia as a result of the cancellation of his ex-citizen visa.

135    The applicant submitted that the Tribunal erred by dismissing the evidence regarding the Department’s consideration of the cancellation of his ex-citizen visa, treating it as nothing more than “speculation”. Rather, the applicant argued that the Departmental documents were “hard evidence” that the applicant’s case had been referred to the visa cancellations section, and amounted to cogent evidence of a real risk that his ex-citizen visa would be cancelled.

136    The Minister submitted that it could not be inferred that the Tribunal had ignored or failed to have regard to the evidence relating to the Departmental consideration of visa cancellation. In circumstances where the Tribunal had addressed the prospect that the applicant’s ex-citizen visa could be cancelled, the Minister submitted that “[t]he inference to be drawn from the Tribunal’s otherwise comprehensive reasons is that it considered the applicant’s contentions and evidence, but did not agree that the possible cancellation of the applicant’s visa was a consequence of sufficient certainty to warrant being afforded any weight”. Further, the Minister submitted that it was open to the Tribunal to find that the possibility of visa cancellation was a matter of speculation, in circumstances where the evidence was no higher than that the applicant had been referred for consideration of visa cancellation more than four years prior to the Tribunal’s decision.

137    The evidence on which the applicant relied is consistent with a Departmental practice under which persons whose Australian citizenship has been revoked may be considered for possible cancellation of their ex-citizen visa, whether under Subdiv C of Div 3 of Pt 2 (visas based on incorrect information may be cancelled) or on character grounds under s 501 of the Migration Act. Nevertheless, it may also be inferred from that evidence that the consideration of possible cancellation does not generally proceed while there are review proceedings pending before the Tribunal in relation to the decision to revoke citizenship. Accordingly, the documents do not suggest that the Department was actively considering the cancellation of the applicant’s visa at the time of the Tribunal’s decision. At most, they indicate that there was some prospect that the consideration of visa cancellation might be re-activated following any decision made by the Tribunal to affirm the revocation of the applicant’s citizenship. In many respects, however, that prospect is an inherent possibility arising from the revocation of citizenship, which had been recognised both in the original brief to the Minister and in the Tribunal’s reasons.

138    The consequences flowing from the potential cancellation of the applicant’s ex-citizen visa were not themselves direct or immediate legal consequences of the decision to revoke the applicant’s citizenship: cf. Galuak v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2024) 306 FCR 271 at [156] (Burley, O’Callaghan and Horan JJ). The Tribunal was nevertheless required to consider and engage with any representations or submissions made by the applicant in relation to the risk that his ex-citizen visa might be cancelled and that he might be removed from Australia: see Plaintiff M1/2021 v Minister for Home Affairs (2022) 275 CLR 582 at [22]–[27] (Kiefel CJ, Keane, Gordon and Steward JJ). However, it was also open to the Tribunal to treat the possible future cancellation of the applicant’s visa as a matter that would be governed by separate statutory processes: Galuak at [157]–[158].

139    On the facts of the present case, there is no basis on which to infer that the Tribunal failed to have regard to the evidence regarding the Department’s consideration of possible visa cancellation in 2018. That evidence did not increase the likelihood that applicant’s ex-citizen visa might be cancelled following the Tribunal’s decision to affirm the decision to revoke the applicant’s Australian citizenship. Of course, it remained possible that the applicant’s visa could be cancelled, requiring his removal from Australia. But that was not overlooked by the Tribunal. While one might disagree with the Tribunal’s characterisation of this as a “technical possibility” that went “no higher than speculation”, or with it having been treated by the Tribunal as “of little or no moment” and given no “determinative weight”, those are matters going to the merits of the Tribunal’s decision.

140    Accordingly, I do not consider that the applicant has established that the Tribunal erred by failing to have regard to the evidence and submissions that the Minister or his Department was exploring whether to cancel the applicant’s ex-citizen visa. Ground 3 is therefore rejected.

Conclusion

141    As I have upheld Ground 1, orders will be made to set aside the Tribunal’s decision and remit the matter to the Administrative Review Tribunal to determine the application for review according to law: see Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 (Cth), sch 16, item 25(2). The Minister should pay the applicant’s costs.

Associate:

Dated:    3 April 2025