Jones distinguished?

The relevant facts were as follows:

1. In May 2005, the Appellant arrived in Australia at the age of 11 holding a Special Humanitarian visa.

2. In November 2007, the Appellant (then aged 14) was granted Australian citizenship.

3. In June 2015, when an adult, the appellant was convicted of rape and sentenced to five years' imprisonment. The offence had been committed in April 2007, when he was 13 years old.

3. On 22 June 2017, the Minister revoked the Appellant's citizenship under s 34(2)(b)(ii) of the Australian Citizenship Act 2007 (Cth) (the 2007 Act), which gave the Minister the power to revoke if "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)".

4. Upon the revocation of the citizenship, assuming its validity, the Appellant was taken to hold an "ex-citizen visa" by operation of s 35 of the Migration Act 1958 (Cth).

5. On 19 July 2018, the Tribunal affirmed the revocation of the citizenship.

6. On 30 July 2018, a delegate of the Minister cancelled the Appellant's visa under s 501(3A) of the Migration Act, but referred to it as the "Class AQ Subclass 150 Former Citizen visa" that was said to have been granted to the appellant on 22 June 2017, being the date on which the decision was made to revoke his Australian citizenship.

7. In December 2020, a delegate of the Minister decided under s 501CA(4) of the Migration Act not to revoke the visa cancellation, this time referring to the visa as the "the ex-citizen visa held by [the appellant] until 30 July 2018".

8. In March 2021, the Tribunal affirmed the delegate's decision not to revoke the visa cancellation.

9. In April 2021, the Appellant commenced proceedings in the Federal Court for judicial review of:

(a)    the decisions of the Minister and the Tribunal to revoke his Australian citizenship under s 34(2) of the 2007 Act; and

(b)    the decision by the Tribunal to affirm the delegate’s decision not to revoke the cancellation of his visa under s 501CA(4) of the Migration Act.

The Full Court of the Federal Court (FCAFC) said:

105    The High Court’s decision in Jones establishes that s 34(2)(b)(ii) of the 2007 Act is valid in its application to a person such as the plaintiff in that case, who was required to satisfy the Minister that he was of “good character” as a precondition to the grant of citizenship and who was always liable to a ministerial discretion to revoke that citizenship if he was subsequently convicted of a serious offence that was committed before he became a citizen. The conferral of such a power on the Minister in those circumstances is reasonably capable of being seen as necessary to protect the integrity of the process by which citizenship was granted or conferred, and the power is therefore not properly characterised as punitive and exclusively judicial in nature.

Some of the questions to the FCAFC were as follows:

Question 1: Can it be said that, as the Appellant was a child at the time that he became an Australian citizen, he was not subject to a requirement that he must be of “good character” as a statutory prerequisite to the grant of citizenship by conferral, with the result that the FCAFC should "distinguish Jones on the basis that the power to revoke his citizenship based on the commission of a serious offence before he became an Australian citizen is not reasonably capable of being seen as necessary to protect the integrity of the naturalisation process, and is therefore properly characterised as punitive in nature"?

Question 2: Can it be said that "the consequences flowing from the potential (or likely) cancellation of the appellant’s ex-citizen visa under s 501(3A) of the Migration Act, or any potential (or likely) decision not to revoke that cancellation decision under s 501CA(4) of the Migration Act, were neither direct nor immediate legal consequences of the revocation of the appellant’s citizenship that the Minister or the Tribunal were required to take into account in the exercise of the power conferred by s 34(2) of the 2007 Act"?

Question 3: To the extent that any legal consequences, such as detention or removal from Australia, of a decision to revoke the citizenship were raised by representations made by the appellant to the Minister or in evidence or submissions made to the Tribunal, was it open to the Minister and the Tribunal to consider and deal with those representations or submissions on the basis that they could be addressed in subsequent statutory processes under the Migration Act, by analogy with what the High Court said in Plaintiff M1 in relation to deferral of consideration of protection claims?

Question 4: Can it be said that, "to the extent that the appellant contends that the Minister or the Tribunal failed to have regard to his representations about indefinite detention, it may be doubted that this would be capable of giving rise to legal error in the light of the High Court’s subsequent decision in NZYQ"?

Question 5: Can it be said that "a decision to cancel one visa that is erroneously assumed to have been granted to a non-citizen cannot be treated as effective to cancel a different visa that is in fact held by the non-citizen"?

Question 6: Can a decision of the type referred to in Question 5 "be saved on the basis that the error was not material to the decision in circumstances where, but for the error, the decision would have been different"?

Question 7: Was the delegate in fact under a misapprehension as to the visa that was being cancelled under s 501(3A), with the result that the Tribunal lacked jurisdiction to determine the appellant’s application for review in relation to the decision under s 501CA(4)?

The FCAFC answered those questions as follows: