Citizenship Act, ss 34(2)(c) and (2): retrospective only; deterrence a permissible consideration?

The Tribunal affirmed a personal decision of the Minister to revoke Applicant's citizenship under s 34(2) of the Australian Citizenship Act 2007 (Cth).

Section 34(2) of the Act read:

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.

The Federal Court (FCA) said as follows:

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].

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.)

...

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.)

Exercise of the discretion to revoke citizenship

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:

...

(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;

Some of the questions to the FCA were as follows:

Question 1: For the purpose of s 34(2)(b)(iii), can it be said that, "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"?

Question 2: May the fact that the person has been convicted of an offence that attracts the powers under s 34(2)(b)(i) or (iii) "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)"?

Question 3: If the answer to Question 2 is 'yes', does it follow that the Tribunal was allowed 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)"?

Question 4: Was the public interest test in s 34(2)(c) “by definition, a retrospective one”, with the assessment of the applicant’s risk of reoffending in the future being “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?

Question 5: Can it be said that, "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"?

Question 6: Assuming that the basis on which the Tribunal considered the discretionary aspects of the power conferred by s 34(2) was not erroneous, was that consideration capable of curing any legal error in forming the requisite state of satisfaction on the public interest under s 34(2)(c)?

Question 7: The Tribunal found that the applicant should not be allowed to bear the fruits of his crimes. Was that 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?

Question 8: If the answer to Question 7 is 'yes', should that nevertheless not have been treated as the only consideration bearing on the exercise of the discretion?

Question 9: Should the Court 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 ..., and further as a factor that militated in favour of exercising the discretion to revoke the applicant’s citizenship"?

Question 10: In the context of s 34(2)(c) and the discretion in s 34(2), is it "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"?

Question 11: Were the consequences flowing from the potential cancellation of the applicant’s ex-citizen visa "not themselves direct or immediate legal consequences of the decision to revoke the applicant’s citizenship"?

The FCA answered those questions as follows: