Parties Dispute Australian Citizenship of the Plaintiff

Alexander v Minister for Home Affairs [2022] HCA 19 (8 June 2022)

The plaintiff is an Australian citizen by birth and a Turkish citizen by descent.  After departing Australia, the plaintiff entered and remained in al‑Raqqa Province in Syria.  The Australian Security Intelligence Organisation ("ASIO") reported in June 2021 that the plaintiff joined the Islamic State of Iraq and the Levant ("ISIL") by August 2013 and is likely engaged in foreign incursions and recruitment by entering or remaining in al‑Raqqa Province.  The Court, in making its orders, relied upon relevant jurisprudence and the interpretation of s 36B of the Australian Citizenship Act 2007 (Cth).

Facts:

In July 2021, the Minister for Home Affairs ("the Minister") made a determination pursuant to s 36B of the Australian Citizenship Act 2007 (Cth) ("the Citizenship Act"), as amended by the Australian Citizenship Amendment (Citizenship Cessation) Act 2020 (Cth) ("the 2020 Amending Act"), that Mr Alexander ceased to be an Australian citizen.  At that time, Mr Alexander was in prison in Syria, where he remains.  

Mr Alexander seeks, among other relief, declarations that s 36B of the Citizenship Act is invalid and that he is an Australian citizen.  On 16 April 2013, Mr Alexander departed Australia for Turkey, indicating on his outgoing passenger card that he would be overseas for three months.  He had informed his family that he intended to arrange a marriage and that he would return to Australia.  Having entered Turkey, at some point Mr Alexander travelled to Syria, where he married his wife.

The Australian Security Intelligence Organisation ("ASIO") reported in June 2013 that Mr Alexander's travel to Syria was facilitated through a Sydney‑based network developed by Mr Alqudsi, who had previously been charged with terrorism‑related offences.  Mr Alexander was reported to be part of a group that was taken to Syria by a senior Syria‑based Australian member of the Islamic State (also known as "ISIL" or "ISIS") which was designated in the Criminal Code (Cth) (under various names) as a terrorist organisation. 

ASIO later reported that it was "likely" that Mr Alexander had joined ISIL by August 2013, and that he had "likely engaged" in foreign incursions and recruitment by entering or remaining in al‑Raqqa Province in Syria on or after 5 December 2014.  In November 2017, Mr Alexander was apprehended by a Kurdish militia in the village of Ziban in Deir El‑Zour Province in Syria (which was not a declared area).

In March 2018, he was transferred to the custody of Syrian authorities and was subsequently charged by Syrian prosecutors with offences against the Syrian Penal Code.  On 31 January 2019, Mr Alexander was convicted and sentenced by a Syrian court to a term of imprisonment for 15 years – subsequently reduced to five – on the strength of admissions he had made during an interrogation. However, Mr Alexander's sister, who appears as his litigation guardian in these proceedings, stated that Mr Alexander told her that he was tortured and forced to sign a paper while in the custody of the Kurdish militia and Syrian authorities without reading its contents. By reason of a pardon from the Syrian government, Mr Alexander's term of imprisonment has expired.

However, he remains in detention for a number of reasons, including that he cannot be released into the Syrian community, nor can he be repatriated to Turkey or Australia.   On 13 July 2020, Mr Alexander was moved to the prison known as Far' Falastin, or Branch 235, which is located in Damascus and operated by Syrian intelligence authorities.  

Since 15 July 2021, neither Mr Alexander's family nor his lawyers have been able to contact him. Mr Alexander claims that, according to his Syrian lawyer, the fact that he is no longer an Australian citizen is a reason for his continuing detention.

Issues:

I. Whether or not s 36B is a valid exercise of legislative power under s 51(xix) of Constitution.

II. Whether or not s 36B is contrary to Ch III of Constitution for conferring upon Minister exclusively judicial function of adjudging and punishing criminal guilt.

Applicable law:

Constitution s 51(xix), Ch III - empowers the Commonwealth Parliament to make laws with respect to "naturalization and aliens". 

Australian Citizenship Act 2007 (Cth) s 36A - provides that "This Subdivision is enacted because the Parliament recognises that Australian citizenship is a common bond, involving reciprocal rights and obligations, and that citizens may, through certain conduct incompatible with the shared values of the Australian community, demonstrate that they have severed that bond and repudiated their allegiance to Australia."

Australian Citizenship Act 2007 (Cth) s 36B - part of a suite of provisions in Subdiv C of Div 3 of Pt 2 of the Citizenship Act which effect the "cessation of citizenship" on terrorism‑related grounds.

Australian Citizenship Act 2007 (Cth) s 36D - provides that the Minister may determine in writing that a person ceases to be an Australian citizen if:

(a) the person has been convicted of an offence, or offences, against one or more of the provisions specified in subsection (5); and

(b) the person has, in respect of the conviction or convictions, been sentenced to a period of imprisonment of at least 3 years, or to periods of imprisonment that total at least 3 years; and

(c) the Minister is satisfied that the conduct of the person to which the conviction or convictions relate demonstrates that the person has repudiated their allegiance to Australia; and

(d) the Minister is satisfied that it would be contrary to the public interest for the person to remain an Australian citizen (see section 36E).

Analysis:

There is ample support in authority for the view that the scope of s 51(xix) extends to permit Parliament to "determine the legal basis by reference to which Australia deals with matters of nationality ... to create and define the concept of Australian citizenship [and] to prescribe the conditions on which such citizenship may be acquired and lost".  The status of alien may be attributed by the Parliament to a person who was previously an Australian citizen by a law providing for "an act or process of denaturalization". 

That proposition cannot stand with Mr Alexander's "once a citizen always a citizen" contention.  That s 36B facilitates punishment in the sense of retribution for the conduct described in s 36B(5)(h) is confirmed by a consideration of the terms of s 36A and a comparison of the operation of s 36B with that of s 36D, the validity of which is not in issue in this case.

Because membership to the Australian body politic is inextricably bound up with the concept of allegiance to this country, the power to denationalise must be limited to laws that recognise and accept a loss of citizenship arising from actions or steps that are indelibly inconsistent with that allegiance and with the membership of that community.  The power to pass a law of denationalisation is not to be limited to a declaration of alienage.  

The denationalisation power cannot be fettered by a requirement that the person must subjectively intend to abandon her or his citizenship in order for that power to be engaged in every case.  A law that denationalises a citizen because that person took a step or steps that represented a fundamental and lasting rebuttal of allegiance to Australia would be authorised by s 51(xix), consistently with an historical consideration of the aliens power. 

Conclusion:

The Court concluded that it is within the power of the Parliament to make laws with respect to "naturalization and aliens" under s 51(xix) of the Constitution.  The exercise of the power reposed in the Minister to deprive Mr Alexander of his citizenship is an exclusively judicial function under Ch III of the Constitution.

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