In applying Section 34(2) of the Australian Citizenship Act, 2007 (Cth), is the residual discretion enlivened in circumstances where the Tribunal was not satisfied of a jurisdictional fact on which the power is conditioned?

Waraich v Minister for Home Affairs [2021] FCAFC 155 (26 August 2021)

Intro:-

The appellant, Randeep Singh Waraich, is a former Australian citizen who presently holds an ex-citizen visa. He appeals from a judgment setting aside the decision of the second respondent, the Administrative Appeals Tribunal. The Tribunal reversed the decision of the first respondent, the Minister for Home Affairs, to revoke the appellant’s citizenship, which the appellant had obtained by conferral. The chain of decisions culminating in the present appeal is as follows.

On 9 January 2018, the Minister exercised his discretion to revoke the appellant’s citizenship under s 34(2) of the Australian Citizenship Act 2007 (Cth) because the appellant had been convicted and sentenced for offences under s 50(1) of the Citizenship Act and s 234(1)(c) of the Migration Act 1958 (Cth) and he was satisfied that it would be contrary to the public interest for the appellant to remain an Australian citizen.

Facts:-

The appellant was born in India in 1977, arriving in Australia from India on a sub-class 560 student visa on 9 February 1998. At that time, he used the name, Amardeep Singh.

On 30 December 1999, the appellant applied for, but was unsuccessful in obtaining, a protection visa. He subsequently departed Australia in June 2002 as an unlawful non-citizen.

On 28 February 2004, the appellant married. On 26 June 2004, as a dependent on his wife’s student visa, the appellant returned to Australia using the name, Randeep Singh Waraich.

On 8 September 2006, the appellant’s wife applied for a skilled migration visa. The appellant, under the name Randeep Singh Waraich, was included as a dependent on that application.

On 14 December 2008, the appellant was granted a permanent visa by reason of his inclusion on his wife’s application.

On 14 November 2009, Australian citizenship was conferred on the appellant, in the name Randeep Singh Waraich.

The appellant did not declare his change of name or past visa history in either of his visa applications in 2004 and 2006, or in his citizenship application in 2009.

In March 2009, using the name Randeep Singh Waraich, the appellant registered with the Victorian Department of Births, Deaths and Marriages. The appellant’s name change was discovered by VicRoads when it was recognised that the photos on the licences of Amardeep Singh and Randeep Singh Waraich appeared to be of the same person. VicRoads referred its discovery to the Department of Immigration and Citizenship and the appellant was interviewed by the Department on several occasions in 2012.

On 27 November 2013, the appellant pleaded guilty and was convicted of:

(a) an offence under s 50(1) of the Citizenship Act for making a statement in relation to an application for Australian citizenship knowing the statement to be false and misleading in a material particular (citizenship conviction);

(b) two offences under s 234(1)(c) of the Migration Act for furnishing or causing to be furnished for official purposes a document containing a statement or information that was false or misleading in a material particular (migration convictions).

As noted at the outset, it was some considerable time later, on 9 January 2018, that the appellant’s citizenship was revoked. The appellant immediately became the holder of an ex-citizen visa upon revocation of his citizenship.

Relevant legislation

Section 34(2) of the Citizenship Act relevantly provides:

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...in relation to the person’s application to become an Australian citizen;

(ii) ...

(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) ...; and

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

The Tribunal’s decision

The Tribunal summarised the background facts and the appellant’s convictions. Under the heading “Consideration”, the Tribunal addressed the appellant’s past behaviour, the lapse of time between his interview and convictions and his contribution to the community before moving to consider the residual discretion and the application of s 34(2)(c).

The Tribunal was satisfied that ss 34(2)(a) and (b) were met but was not satisfied that the public interest condition in s 34(2)(c) was met.

In the course of considering the application of s 34(2), the Tribunal first concluded that s 34(2)(c) was not satisfied. Next, and notwithstanding that the statutory condition for the exercise of the power had not been fulfilled, the Tribunal purported to go on to determine that the revocation power should not be exercised “as a matter of discretion”.

We note that both the appellant and the Minister contended that s 34(2) in its correct construction involved the exercise of a residual discretion if the conditions in ss 34(1)(a) to (c) were met. This is consistent with the approach taken by the Full Court in Egan, a decision handed down on the day the present appeal was heard.

Next, the appellant submitted that the Tribunal’s error of law was not material because the Tribunal lawfully exercised its discretion not to revoke the appellant’s Australian citizenship on the premise that s 34(2)(c) was met, and in any event that the Tribunal’s analysis of whether it was satisfied of the matter in s 34(2)(c) was expressed “in the alternative”. By this submission, the appellant appeared to contend that the residual discretion to revoke citizenship can be exercised in a way that is not tethered to the satisfaction of the anterior public interest condition.

Issues:-

1. Did the primary judge err in finding that the Tribunal's misconstruction of s 34(2)(c) of the Citizenship Act 2007 (the Act) was material such that it could realistically have made a difference to the outcome in the Tribunal?

Analysis:-

In construing s 34(2) as involving the exercise of a residual discretionary power, the Minister draws an analogy between the structure of s 34(2) of the Citizenship Act and ss 501(3), 501A(2), 501A(3) of the Migration Act (the Migration Act provisions). Each of the Migration Act provisions confers a power on the Minister to do a thing (visa refusal or cancellation) if, inter alia, the Minister is satisfied that the thing “is in the national interest”: Migration Act, ss 501(3)(d), 501A(2)(e), 501A(3)(d). The Migration Act provisions have been construed as conferring a discretionary power on the Minister the exercise of which is conditioned inter alia on the Minister forming an evaluative judgment that the thing (visa refusal or cancellation) “is in the national interest”. Similarly, s 34(2) confers a discretionary power on the Minister to do a thing (revoke citizenship) the exercise of which is conditioned, inter alia, on forming an evaluative judgment that not to do the thing would permit a situation to persist (continuance of the person’s Australian citizenship) that is contrary to the public interest.

In Gbojueh v Minister for Immigration and Citizenship [2012] FCA 288; (2012) 202 FCR 417 at 421 [14], Bromberg J observed in respect of s 501A(2) of the Migration Act that:

"The drafting of s 501A(2) utilises a well recognised format, requiring the satisfaction of prerequisite conditions (set out in s 501A(2)(c), (d) and (e)) before the residual discretion is enlivened. One of the preconditions to the exercise of the discretion is the Minister’s satisfaction that the cancellation of a visa is in the national interest. The availability of the Minister’s discretionary power to set aside the original decision and to refuse to grant a visa or cancel a visa that has already been granted, is only enlivened when the Minister is satisfied of each of the preconditions to the exercise of the power. The question whether the discretion should be exercised does not arise until the Minister is satisfied that each of the preconditions are met, including that cancellation would be in the national interest. Decision-making in accordance with the structure of the section requires the Minister to consider the national interest precondition before considering the exercise of the residual discretion. A two step process is necessarily required of the Minister.

In BFM16 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 312 at [147], Farrell J identified the following propositions in respect of the decision-making process engaged by s 501A(2) of the Migration Act:

(1) In determining whether or not he or she is satisfied that refusal or cancellation is in the national interest for the purposes of s 501A(2)(e), the Minister is not exercising a discretionary power, but is rather forming an evaluative judgment. That satisfaction is the starting point for the consideration of the exercise of discretion in s 501A(2)(e): [CWY20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 1855] at [79], relying on [Graham v Minister for Immigration and Border Protection [2017] HCA 33; (2017) 263 CLR 1] at [57]- [58].

(2) It is important that each stage of the decision-making process (which includes the separate and distinct pre-conditions in s 501A(2)(c) to (e)) be conducted reasonably and on a proper legal basis, with a correct understanding of the meaning and application of relevant statutory concepts at each stage. The need for the Minister to adopt and apply a correct understanding of the national interest is all the more important because considerable weight will usually be given to the assessment of the national interest when that matter comes to be weighed against other considerations which are relevant in the later stage of the decision-making process, being the residual discretion: CWY20.

The legislative provision in issue in Graham was s 501(3) of the Migration Act. The legislative provision in issue in CWY20 was s 501A(3) of the Migration Act.

In Fastbet Investments Pty Ltd v Deputy Commissioner of Taxation (No 5) [2019] FCA 2073; (2019) 167 ALD 492 at 514, Derrington J observed in the context of the exercise of the discretion in s 255-100(1) of Schedule 1 of the Taxation Administration Act 1953 (Cth) that “the satisfaction of the jurisdictional fact goes some considerable way to influencing the exercise of the discretion”; once the jurisdictional fact exists “there must necessarily be some inclination towards exercising the discretion”.

The similarities in the structure of s 34(2) of the Citizenship Act and s 501A(2) of the Migration Act are readily apparent. As stated , s 34(2) is structured to confer a discretionary power on the Minister to revoke the citizenship of a person the exercise of which is conditioned on the three matters identified in ss 34(2)(a) to (c). First, the revocation must be directed to a person who obtained citizenship by conferral: s 34(2)(a). Second, the person must have been convicted of an offence of a type described in ss 34(b)(i) to (iv). Third, the Minister must be satisfied that it would be contrary to the public interest for the person to remain an Australian citizen: s 34(2)(c). The residual discretion in s 34(2) is only enlivened after all the conditions in ss 34(2)(a) to (c) are met.

It was common ground that the conditions in ss 34(2)(a) and (b) were met. The Tribunal erred in law in construing what was necessary to make the evaluative judgment required by the public interest condition. The residual discretion conferred by s 34(2) cannot lawfully be exercised separately to the formation of the requisite state of mind about the public interest. In other words, the Tribunal had to form a state of satisfaction about the public interest before exercising the discretion: CWY20.

In the present context, once the administrative decision-maker (the Minister or the Tribunal as the case may be) is satisfied that it would be contrary to the public interest for the person to remain an Australian citizen, there is likely to be some inclination to revoke the person’s citizenship. For this reason, it was not open to the Tribunal to exercise the residual discretion under s 34(2) on the abstract assumption that the public interest condition was met without actually forming the state of mind to which that condition is directed.

If the appellant’s contention in respect of the materiality of the legal error is understood as going to the discretion to grant or refuse relief, then it is our view that the error was material and relief should be granted. Had the Tribunal’s assessment in respect of the public interest condition not been distorted by its misconstruction of s 34(2), a different decision could have been made. No error has been shown in the approach taken by the primary judge.

This is not an appeal where the appellant may rely on alternative path of reasoning to support the Tribunal’s purported exercise of the residual discretion. The dismissal of ground 1 requires the matter to be remitted to the Tribunal to be determined in accordance with the law.

Conclusion:-

1. The appeal be dismissed.

2. The appellant pay the first respondent’s costs.