Federal Court. Were the matters captured by ss 34(2)(a)-(c) of the Australian Citizenship Act 2007 (Cth) mandatory considerations for the purpose of the exercise of the discretion in s 34(2)?
Section 34 of the Australian Citizenship Act 2007 (Cth) provided:
34 Revocation by Minister—offences or fraud
…
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.
Some of the questions to the Federal Court (FCA) were as follows:
Question 1: Where the matters captured by s 34(2)(a), s 34(2)(b) and s 34(c) mandatory considerations for the purpose of the exercise of the discretion in s 34(2)?
Question 2: Do the considerations in paras (a) and (b) of s 34(2) naturally also fall for consideration under para (c) in assessing the public interest?
Question 3: Does the exercise of the discretion in s 34(2) include taking into account of "any countervailing factors falling outside public interest considerations, such as hardship that may or will be caused to the person and other individuals"?
Question 4: Can it be said that "reasons for decision published by a decision-maker who is obliged to have regard to mandatory considerations should show an active intellectual engagement with all mandatory criteria"?
Question 5: Are s 43(2) and s 43(2B) of the Administrative Appeals Tribunal Act 1975 (Cth) similar to s 430 of the Migration Act 1958 (Cth)?
Question 6: Does the proposition that the purpose of s 34(2) of the Citizenship Act extends to revoking the citizenship of a person who is not “worthy” or not “deserving” of Australian citizenship, and that this was a matter required to be taken into account by the Tribunal, stray into the realm of denunciation and retribution, contrary to what the High Court said in Jones v Commonwealth of Australia (2023) 415 ALR 46; [2023] HCA 34 at [54]?
Question 7: Is the question of the person’s good character both at the time of a decision to grant citizenship and at the time of the decision as to whether to revoke citizenship relevant and important to whether, under s 34(2)(c) of the Citizenship Act, it would be contrary to the public interest for the person to remain an Australian citizen?
Question 8: If the answer to Question 7 is 'yes', is good character the only consideration that may affect the exercise of the discretion, or a matter of such overwhelming importance that it is incapable of being overcome by any countervailing factors?
Question 9: If the answer to Question 8 is 'no', are the following matters permissible considerations in the exercise of the discretion: "detriment, or the potential for detriment, to the person or other individuals resulting from revocation of the person’s citizenship"; "the extent of the person’s attempts at rehabilitation and the degree to which they remain not of good character might also be relevant"?
The FCA answered those questions as follows: