Ground 4
94 The applicant changed his position in relation to ground 4 in his reply submissions. The amended notice of appeal states that "[t]he Tribunal erred as to a jurisdictional fact in not finding that the applicant had ceased with effect from 14 December 2017 to be a citizen of Ireland." This quite clearly invites the Court to direct its inquiry to whether or not the applicant was as a matter of law and fact an Irish citizen. However, in his reply submissions the applicant conceded that the relevant jurisdictional fact under s 34(3)(b) of the Citizenship Act is the formation of the state of satisfaction, rather than the underlying facts to which that state of satisfaction is directed. That is to say, the applicant accepted what had been submitted by the Minister, namely that s 34(3)(b) expresses what is increasingly referred to as a subjective jurisdictional fact.
95 The applicant submits as follows:
(a) The Tribunal failed to have regard to, or to form a correct legal understanding in relation to, the character of the first Tribunal decision as a "thing in fact", despite the fact that it was affected by jurisdictional error. In this regard the applicant relied on the reasoning of Gageler J in New South Wales v Kable [2013] HCA 26; 252 CLR 118 at [52], relevantly: "yet a purported but invalid law, like a thing done in the purported but invalid exercise of a power conferred by law, remains at all times a thing in fact."
(b) That error of law vitiated the lawful formation of the relevant state of satisfaction under s 34(3)(b) of the Citizenship Act.
(c) In the absence of that state of satisfaction, the required jurisdictional fact for the exercise of power did not exist.
96 With regard to (a) above, it is said by the applicant that the existence in fact that gives rise to legal consequences of the decision of the first Tribunal is demonstrated by the fact that, as a result of the first Tribunal's purported exercise of power, upon his release on parole on 19 December 2017, which was five days after the decision of the first Tribunal, the applicant was not subject to automatic cancellation of his visa by reason of s 501CA and s 501(3A) of the Migration Act. It is said this would have applied had the first Tribunal affirmed the Minister's revocation of citizenship. Therefore, so it is said, the first Tribunal decision had "very important consequences for the position of the applicant under the Migration Act" and clearly existed as a thing in fact from which legal consequences could follow.
97 The court may only review the formation of a state of satisfaction on limited grounds, including that the decision-maker did not address the question formulated by the provision, considered an irrelevant matter or disregarded a relevant matter, or engaged in illogical or irrational reasoning, or the conclusion is affected by some mistake of law, or there was an absence of good faith, among other things. See Avon Downs Pty Ltd v Commissioner of Taxation [1949] HCA 26; 78 CLR 353 at 360 per Dixon J; Buck v Bavone [1976] HCA 24; 135 CLR 110 at 118-119 per Gibbs J; Ali at [39]-[42].
98 The purpose of the use of such a word as "satisfied" is a well-established drafting technique so as to limit curial review to incorporate a subjective element as a condition to the operation of a provision or to the enlivening of a power: see Commissioner of Taxation v Addy [2020] FCAFC 135 at [134] per Derrington J; Minister for Immigration & Multicultural Affairs v Eshetu [1999] HCA 21; 197 CLR 611 at [130] per Gummow J; and Ali at [42].
99 In Eshetu at [137], Gummow J noted that:
where the criterion of which the authority is required to be satisfied turns upon factual matters upon which reasonable minds could reasonably differ, it will be very difficult to show that no reasonable decision-maker could have arrived at the decision in question.
100 The respondent relied on Makarov v Minister for Home Affairs (No 2) [2020] FCA 1275, which addresses the state of satisfaction required by s 34(3)(b) of the Citizenship Act. The case concerned a challenge by Mr Makarov to a decision to revoke his Australia citizenship. The revocation was purportedly made under s 34(2) of the Citizenship Act. It was said that Mr Makarov also had Ukrainian citizenship. Mr Makarov was convicted of multiple child sex offences and it was on this basis that the Minister decided to revoke his Australian citizenship. Mr Makarov sought an order pursuant to s 39B of the Judiciary Act quashing the Minister's decision. His contention was that the Minister was prevented from making his decision because it would have rendered him stateless and he would adduce expert evidence on that contention.
101 The question before the Court took the following form (at [9]):
In order to decide whether the Minister exceeded his power under s 34 of the Australian Citizenship Act 2007 (Cth) by revoking the applicant's Australian citizenship, is the question whether, by doing so, the applicant would become "a person who is not a national or citizen of any country" a jurisdictional fact, so that the Court may receive evidence on the question?
102 Mr Makarov's submission was that, among other things, the mere fact that the Minister formed "a state of subjective satisfaction" as to the subject-matter of the provision is "an insufficient or incomplete answer to the question of whether the Minister's exercise of the power in s 34(2) … was lawful": at [15].
103 Katzmann J observed that the fundamental difficulty with Mr Makarov's submission was that it failed to confront the text. Her Honour held that on a plain reading of s 34(3)(b), the criterion which precludes the Minister from revoking Australian citizenship was not that the person would become a person who is not a national or citizen of any country. Rather, it is that the Minister is satisfied that that they would: at [18]. Her Honour explained that the legislative purpose of such a provision is to limit the scope of judicial review. That is to say, the role of the court is not to decide whether the matter in respect of which the Minister is required to form an opinion or reach a state of satisfaction actually existed. Rather, it is to ascertain whether the decision-maker had formed the requisite opinion or reached the requisite state of satisfaction according to law: at [19]. In such a case, it is the opinion, rather than the underlying facts, which is the criterion conditioning the exercise of the power (at [20]), citing Commissioner of Taxation v Addy [2020] FCAFC 135 at [134] per Derrington J and the authorities referred to there; Minister Administering the Crown Lands Act v New South Wales Aboriginal Land Council [2009] NSWCA 151 at [33] (Basten JA, Beazley and Tobias JJA agreeing). See also Minister for Immigration and Multicultural and Indigenous Affairs v SGLB [2004] HCA 32; 78 ALJR 992 at [37].
104 The result was that the answer to the question was "no". Accordingly, evidence on whether Mr Makarov would in fact have become stateless on the revocation of his citizenship was inadmissible: at [25].
105 It was not contended in this appeal that Makarov is wrong. The appeal therefore presents no occasion to consider whether s 34(3)(b) indeed expresses a subjective jurisdictional fact.
106 It might be thought that the result in Makarov is unfortunate. That is because whether or not someone is at a particular time a citizen of another country is an inquiry that admits of a binary outcome that is either right or wrong; the decision in question is not multi-faceted or evaluative, which are qualities of decisions that lend themselves most readily to classification as subjective jurisdictional facts. Moreover, the result in any particular case may be that the Tribunal (in a merits review from the decision of the Minister) may be wrong and since the decision can only be reviewed on limited grounds, someone may be rendered stateless by the wrong decision contrary to Australia's obligation under international law. That is that a contracting state to the United Nations Convention on the Reduction of Statelessness, opened for signature 30 August 1961, 989 UNTS 175 (entered into force 13 December 1975; [1975] ATS 46), by Art 8(1), shall not deprive a person of its nationality if such deprivation would render the person stateless. All of that can, however, be put to one side for the purposes of deciding the appeal.
107 This being an appeal under s 44 of the AAT Act, the applicant confined the ground of appeal to a question of law. As to what that means, see Haritos v Commissioner of Taxation [2015] FCAFC 92; 233 FCR 315 at [192]-[202] per Allsop CJ, Kenny, Besanko, Robertson and Mortimer JJ.
108 The application of s 34(3) to the applicant's circumstances required the Tribunal to resolve two disputes. First, there was a legal dispute about the status, as a matter of Australian law, of the first Tribunal decision in the light of the earlier judgment of this Court that it was affected by jurisdictional error. The applicant contended that the first Tribunal decision had some ongoing status as a "thing in fact", despite that jurisdictional error. The Minister, on the other hand, argued that the first Tribunal decision was, for the purposes of the Act, "no decision at all".
109 Secondly, the Tribunal was required to determine a factual dispute about the consequences, in Irish law, of the status of the first Tribunal decision. That dispute was a factual one because the content of foreign law is a question of fact: Neilson v Overseas Projects Corporation of Victoria Ltd [2005] HCA 54; 223 CLR 331 at [115] per Gummow and Hayne JJ. The Tribunal had the assistance of expert evidence about the content of Irish law.
110 It was important that the Tribunal determine the legal dispute before determining the factual dispute. That was because the experts made different assumptions about the status of the first Tribunal decision as a matter of Australian law. The reliance that could be placed on each expert opinion varied depending on whether those assumptions were proved.
111 All the experts agreed that whether a person "is or is about to become a citizen of another country" is governed by the law of the other country, in this case Australian law. In this regard, the comments of the High Court per Kiefel CJ, Gageler and Keane JJ in Hossain v Minister for Immigration and Border Protection [2018] HCA 34; 264 CLR 123 (at [24]) are instructive, relevantly:
To describe a decision as "involving jurisdictional error" is to describe that decision as having been made outside jurisdiction. A decision made outside jurisdiction is not necessarily to be regarded as a "nullity", in that it remains a decision in fact which may yet have some status in law. But a decision made outside jurisdiction is a decision in fact which is properly to be regarded for the purposes of the law pursuant to which it was purported to be made as "no decision at all". To that extent, in traditional parlance, the decision is "invalid" or "void". [References omitted.]
112 This passage makes clear 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. If it had no legal effect under Australian law, it follows that from the time that the Minister made the revocation decision the applicant was not under Australian law an Australian citizen. The relevance of Hossain was raised by the respondent in its submissions before the Tribunal and is cited in the Tribunal's reasons at [110] and relied on at [119]. This conclusion was rational and logical.
113 The applicant's reliance on Kable and the "thing in fact" argument is misconceived. A similar argument was run before the Tribunal. The Tribunal well understood that the applicant's contention was that the first Tribunal decision had some residual operation for the purposes of the Citizenship Act but found those submissions to be unpersuasive. For example, at [111] of the Tribunal's reasons it noted the applicant's submissions seeking to distinguish Minister for Immigration and Multicultural Affairs v Bhardwaj [2001] HCA 71; 209 CLR 597 and Plaintiff S157/2002 v Commonwealth [2003] HCA 2; 211 CLR 476 from the applicant's case, specifically the consequences of the Full Court decision made some 10 months after the first Tribunal decision that was found to have been affected by jurisdictional error and the application of Irish law.
114 With regard to the contention that the Tribunal did not grapple with the "character" of the first Tribunal decision, this is also misconceived. It is misconceived for many of the reasons already given but also because the applicant has not and cannot show how the operation of the Citizenship Act gives legal force to a decision affected by jurisdictional error. The Citizenship Act is central to any analysis because it is that Act that gave the first Tribunal decision effect. The applicant cannot side step the operation of the Citizenship Act by asserting that the first Tribunal decision was a thing in fact under s 21(1) of the Irish Citizenship Act. That is because Australian citizenship was to be decided pursuant to Australian law under s 21(1).
115 For completeness, Kable also does not assist the applicant for the following reason. Paragraph [52] of that decision goes on to relevantly say:
The action so taken might then have consequences for the creation or extinguishment or alteration of legal rights or legal obligations, which consequences do not depend on the legal force of the thing itself.
116 The consequences in this proceeding do depend on the legal force of the thing itself, that thing itself being the decision made by the first Tribunal.
117 The Tribunal therefore resolved the legal dispute by concluding that the first Tribunal decision was to be treated, for the purposes of Australian law, as "no decision at all": at [116]-[119]. There is no error in the Tribunal's reasoning or conclusion. Its approach involved the orthodox application of established authority.
118 The Tribunal then considered the second, factual dispute. It rejected the evidence of the applicant's expert, Mr Leonard, to the effect that the applicant lost his Irish citizenship when the first Tribunal decision was made, and that the earlier Full Court decision did not change that result: at [124]-[126]. The Tribunal's rejection of Mr Leonard's evidence was unsurprising and logical. Once the Tribunal found that the first Tribunal decision was, for the purposes of the Citizenship Act, "no decision at all", it followed that the applicant had not been an Australian citizen at any time on and from the date of the Minister's decision, and the applicant's renunciation of his Irish citizenship could not be effective.
119 The Tribunal accepted the evidence of Dr Coutts. His evidence accounted for the status of the first Tribunal decision, as a matter of Australian law, as "no decision at all". In opining as to the applicant's Irish citizenship status, Dr Coutts assumed that the effect of the first Tribunal decision was that the applicant had not, as a matter of Australian law, been an Australian citizen at any time after the Minister's decision, and applied Irish law to his circumstances on the basis of that assumption: at [98]-[100], [129]-[134].
120 The Tribunal had careful regard to the evidence before it and resolved the relevant questions against the applicant. In doing so, the Tribunal did not make any error, let alone on a question of law.