Federal Court. Can it be said that, although s 25(1) of the Citizenship Act 2007 (Cth) provided that the Minister "may" cancel an approval of citizenship (if, for instance, the applicant was not of good character), the power under that provision was not discretionary?
Some of the questions to the Federal Court (FCA) were as follows:
Question 1: Section 25(1) of the Citizenship Act 2007 (Cth) provided that the Minister may, by writing, cancel an approval given to a person under s 24 if the person has not become an Australian citizen under s 28 and either of the "situations" in ss 25(2) or (3) applied. Can it be said that, where a delegate has made a decision under s 25(1) to cancel an approval of citizenship, "it remains contextually relevant especially in a case of contended fraudulent conduct [alleged to have occurred involving the grant of a permanent visa], to note the view formed by the delegate and recognise that the view reached by the delegate is likely to have been influential in informing the Tribunal’s decision to affirm"?
Question 2: The essential contention put to the Tribunal was that the citizenship applicant had engaged in fraudulent conduct concerning her permanent visa application. Is an allegation of fraud "one of the most serious allegations that can be made against a person"?
Question 3: If the answer to Question 2 is 'yes', is it "necessary to identify, and expressly and plainly make findings of fact about, the precise contended conduct"?
Question 4: Can it be said that, although s 25(1) of the Citizenship Act 2007 (Cth) provided that the Minister "may" cancel an approval of citizenship (if, for instance, the applicant was not of good character), the power under that provision was not discretionary?
If the answer to Question 4 is 'no':
Question 5: Would the factors to be taken into account in exercising the discretion under s 25(1) depend upon the circumstances of the person whose approval is to be cancelled?
Question 6: Would the factors to be taken into account in exercising the discretion under s 25(1) depend upon the features of that person’s character bearing upon the exercise of the discretion?
Question 7: Would the factors to be taken into account in exercising the discretion under s 25(1) depend upon the period over which the conduct occurred?
Question 8: Would the factors to be taken into account in exercising the discretion under s 25(1) depend upon potentially other factors?
Question 9: May the gravity of the conduct be almost determinative?
The FCA answered those questions as follows: