Federal Court (Full Court). Does the word "may" in s 34(2) of the Citizenship Act 2007 (Cth) indicate the existence of a residual discretion? Did s 34(3)(b) contain an objective or subjective jurisdictional fact? If a decision under s 34(2) to revoke a citizenship is set aside by the AAT but the AAT's decision is quashed on the basis of jurisdictional error, was the person whose citizenship was revoked nevertheless an Australian citizen, as a matter of law, from the time of the AAT decision until that decision was quashed?
Relevant timeline of events:
- On 5 May 2016, the Minister made a decision under s 34(2) of the Citizenship Act 2007 (Cth) to revoke the applicant’s citizenship. Paragraph 34(3)(b) provided, however, that the Minister must not revoke the citizenship if "satisfied that the person would, if the Minister were to revoke the person's Australian citizenship, become a person who is not a national or citizen of any country".
- On 20 June 2016, the applicant filed an application for review of the decision with the Tribunal.
- On 13 October 2016, the applicant submitted a declaration of alienage to the Government of Ireland purporting to renounce his Irish citizenship.
- By a latter dated 25 January 2017, the Irish Naturalisation and Immigration Service advised the applicant as follows: "Under the provisions of Section 21 of the Irish Nationality and Citizenship Act 1956, as substituted by Section 7 of the 1986 Act, you will cease to be an Irish citizen upon the acquisition of another citizenship or if you already hold another citizenship, your Irish citizenship ceases with effect from 13 October 2016, the date of your declaration" (emphasis added).
- On 14 December 2017, the (first) Tribunal set aside the Minister's decision. On one view (discussed below), from 14 December 2017 the applicant regained his Australian citizenship.
- On 9 October 2018, the (first) Full Court of the Federal Court (FCAFC) allowed the Minister’s challenge to the Tribunal decision dated 14 December 2017 and remitted the matter to the (second) Tribunal for reconsideration. "This returned the applicant to not being an Australian citizen" if he in fact regained his citizenship on 14 December 2017.
- "On 18 December 2019, the first day of the hearing [before the second Tribunal], the applicant made an open settlement offer through his solicitors. The terms of the offer were in effect that the Minister undertake not to cancel the applicant’s ex-citizen visa and, if that undertaking were given, the applicant would withdraw the Tribunal proceeding. The effect of this would be that the applicant would not be a citizen but he would continue to be able to reside in Australia".
- "On 19 December 2019, the second day of the hearing, the open settlement offer was admitted into evidence, against objection, "on the basis that it means nothing other than an offer was made during the course of proceedings"".
- "On 16 January 2020, some weeks after the hearing, the Minister by letter rejected the applicant’s open settlement offer".
- "On 4 August 2020, the second Tribunal affirmed the decision of the Minister to revoke the applicant’s Australian citizenship. It is an appeal from this decision that is now before [the second FCAFC]". In that decision, the second Tribunal made a stay order under s 41(2) of the AAT Act that its decision was to come into effect only 28 days after the decision was made, because of the "somewhat novel question in relation to whether the Applicant is an Irish citizen".
Subsection 21(1) of the Irish Citizenship Act 1956 as amended stated:
If an Irish citizen of full age is or is about to become a citizen of another country and for that reason desires to renounce citizenship, he or she may do so, if ordinarily resident outside the State, by lodging with the Minister a declaration of alienage in the prescribed manner, and, upon lodgement of the declaration or, if not then a citizen of that country, upon becoming such, shall cease to be an Irish citizen.
The second Tribunal heard evidence from experts on Irish citizenship law, one from the applicant and the other for the Minister. The second FCAFC said as follows regarding the evidence given by the expert witness for the applicant:
49 Mr Leonard’s opinion was in essence that the applicant’s renunciation of his Irish citizenship could only be triggered once and was, as a matter of Irish law, final, and “couldn’t be undone”. That is to say, if the first Tribunal’s decision had the effect of reinstating the applicant’s Australian citizenship then he ceased to be an Irish citizen on the date of that Tribunal decision, namely 14 December 2017. In the alternative, if the decision of the first Tribunal took the place of the Minister’s decision of 5 May 2016, the applicant ceased to be an Irish citizen as at the date of his declaration of alienage, namely 13 October 2016.
50 While Mr Leonard accepted the proposition that, under Irish law, whether a person is considered a citizen of a foreign country would be decided by the law of that country, he did not believe this changed the applicant’s position under Irish law. He also accepted the proposition that the effect of the Full Court decision was to render the first Tribunal decision as having no effect, but he said this did not change the applicant’s position, indeed it was “irrelevant”. In his report he said that otherwise Irish citizenship law would be subject to the uncertainties and unpredictability of ongoing foreign litigation.
The second Tribunal rejected Mr Leonard's evidence and found as follows at :
The effect of the [first] Federal Court decision was that the first decision of the Tribunal effectively never existed; it was not effective for any period. Furthermore, the argument as to the effect of section 6(5) of the Irish Citizenship Act does not help the Applicant’s case.
In other words, the second Tribunal found that, as the first Tribunal's decision was vitiated with jurisdictional error and thus never existed at law, the first Tribunal's decision did not have the effect of restoring the applicant's Australian citizenship. It follows that the applicant was was not an Australian citizen at the time he purported to renounce his Irish citizenship. As a result, as he neither was an Australian citizen at the time of the purported renunciation nor became an Australian citizen after the purported renunciation, s 21(1) of the Irish Citizenship Act was never enlivened, with the result that he never lost his Irish citizenship.
Some of the questions to the second FCAFC were as follows:
Question 1: Does the word "may" in s 34(2) of the Citizenship Act 2007 (Cth) indicate the existence of a residual discretion not to revoke a person's Australian citizenship even if, pursuant to s 34(2)(c), "the Minister is satisfied that it would be contrary to the public interest for the person to remain an Australian citizen"?
Question 2: In Minister for Immigration and Border Protection v DRP17  FCAFC 198, Jagot J held at  that ignoring a "substantial, clearly articulated argument" in the context of s 501CA of the Migration Act 1958 (Cth) may result in jurisdictional error. Does the principle in DRP17 equally apply to s 34(2) of the Citizenship Act 2007 (Cth)?
Question 3: The FCAFC held on 9 October 2018 that, at the moment that the applicant's citizenship was cancelled, he would be taken to have been granted an ex-citizen visa under s 35(3) of the Migration Act 1958 (Cth). "He would thus not be removed from Australia until some ultimate decision was made under s 500, s 501 or s 501CA of the Migration Act and it would be only then that the deportation issues would be relevant". Can it be said that, had the second Tribunal "appreciated that the offer was rejected, and taken that into account, its reasoning process would have been different and it may have placed some weight on the submissions concerning the offer"?
Question 4: Did s 34(3)(b) of the Citizenship Act 2007 (Cth) contain an objective jurisdictional fact, in the sense of a fact that a court can and should determine for itself?
Question 5: Did s 34(3)(b) of the Citizenship Act 2007 (Cth) contain a subjective jurisdictional fact, in the sense of whether the state of satisfaction, which operates as a condition for the valid exercise of power, was formed according to law?
Question 6: Can it be said that "the first Tribunal decision had no effect under the law to which s 21(1) of the Irish Citizenship Act directed attention, i.e., the Australian Citizenship Act", with the result that the applicant was not under an Australian citizen under Australian law from the time that the Minister made the revocation decision?
Question 7: If the first Tribunal decision was a thing in fact under s 21(1) of the Irish Citizenship Act, does that mean that the operation of the Citizenship Act 2007 (Cth) gives legal force to a decision affected by jurisdictional error, with the result that, if the Tribunal ignored that legal force, the formation of the state of satisfaction called for by s 34(3)(b) of the latter Act was vitiated with jurisdictional error?
The second FCAFC answered those questions as follows:
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