Federal Court: In deciding whether to affirm a decision of the Minister to cancel an approval for citizenship under s 25 of the Citizenship Act 2007, was the AAT required to take into account the legal consequences of its decision? If so, was the removal from Australia a legal consequence? Was the AAT required to take into account "non-protection" representations about what would happen if the AAT affirmed the citizenship approval cancellation?
The Applicant held a permanent residence visa and applied for Australian citizenship. What happened next was summarised by the Federal Court (FCA) as follows:
17. Although he had been granted a certificate of Australian citizenship, under s 15 of the [Australian Citizenship Act 1948 (Cth)] a person did not become an Australian citizen until they made the required pledge of commitment. On being granted a certificate of Australian citizenship, the applicant was invited to attend a citizenship ceremony and make such a pledge, however he failed to do so.
Given the transitional provisions between the above Act and the Citizenship Act 2007 (Cth), 'the applicant was taken to have made an application for citizenship that had been approved under s 24' of the latter Act.
While still holding a permanent residence visa, 'the applicant accumulated a significant criminal history' with the result that his visa was mandatorily cancelled under s 501(3A). The Applicant did not seek revocation of that cancellation pursuant to s 501CA(3).
A delegate of the Minister then decided to 'cancel the approval of the applicant’s application for Australian citizenship because he was not a permanent resident as defined under s 25 of the Citizenship Act 2007 (Cth), which read as follows:
25 Minister may cancel approval
(1) The Minister may, by writing, cancel an approval given to a person under section 24 if:
(a) the person has not become an Australian citizen under section 28; and
(b) either of the following 2 situations apply.
Eligibility criteria not met
(2) The first situation applies if:
(a) the person is covered by subsection 21(2), (3) or (4); and
(b) the Minister is satisfied that, at the time the Minister proposes to cancel the approval, the person is:
(i) not a permanent resident; or
(iii) not of good character.
Subsequently, the Applicant applied to the AAT for merits review of the decision to cancel his approval of application for Australian citizenship.
The submissions made by the Applicant to the Tribunal were summarised by the FCA as follows:
31 The applicant submitted that that discretion must be exercised reasonably, which in turn required the delegate, and hence the Tribunal, to take into account the risk of the applicant’s deportation and the resultant significant hardship that both he and his family members would face. I shall refer to the applicant’s representations with regard to the harm that he would face in the event that the cancellation of his citizenship approval was affirmed as his “harm representations”.
32 The following factors were identified as being pertinent to that harm: (1) his poor physical and mental health; (2) his lack of support in Lebanon; (3) his general unfamiliarity with Lebanon, including his limited ability to speak Arabic; (4) his lack of skills which may affect his ability to obtain employment and support himself; and (5) the general situation in Lebanon, including the dangerous security environment, lack of adequate medical services, lack of social security, and poor employment opportunities.
The AAT affirmed the delegate's decision and its decision record included the following passage:
92. It is not for the Tribunal to consider what might become of [the Applicant] in the event that the Minister’s decision is affirmed. If he has genuine concerns about his physical safety if returned to Lebanon he has the option of applying for a Protection Visa, which is one class of visa for which he could be considered despite the prohibitions otherwise outlined in section 501E of the Migration Act. There is also the option for him to apply for the exercise of Ministerial discretion under section 195A of that Act.
The Applicant finally "appealed" the AAT's decision to the FCA, the questions to which were as follows:
Question 1: was the AAT required to take into account the legal consequences of its decision?
Question 2: if the answer to Question 1 is "yes", was the removal from Australia a legal consequence of that decision?
Question 3: was the AAT required to take into account the harm representations?
If the answer to Question 3 is "yes":
Question 4: with respect, how could it be said, on the one hand, that the legal consequences of removal from Australia were not a mandatory consideration and, on the other hand, that the practical consequences of removal as described in the harms representation were a mandatory consideration?
Question 5: did the AAT take into account the harms representation by 'referring to the possibility of being considered under s 195A of the Migration Act'?
Question 6: did the AAT take into account the harms representation by 'referring to the option for the applicant to apply for a protection visa'?
The FCA answered as follows...
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