Did the Minister fail to apply an active intellectual process to the consideration of the matters he was required to take into account before making his decision?
70 Mr Makarov submitted that the Minister's task under s 34(2) of the Citizenship Act could not be lawfully undertaken without "actively and intellectually" considering "the materials" before him in making his decision and this he failed to do.
71 No clear articulation of what those materials were appeared in the written submissions. Nor were they clearly identified in oral argument. Nevertheless, it is apparent that the materials included the Departmental submission to the Minister, the April 2007 emails between the Department and the Embassy, an extract from the Ukrainian law on citizenship, Mr Makarov's representations to the Minister made on 14 June 2007 and Ms Malyon's letter of 20 August 2007.
72 I accept that the Minister was bound to engage in an "active intellectual process" in deciding whether to exercise his power under s 34(2) of the Citizenship Act. That expression derives from the judgment of Black CJ in Tickner v Chapman (1995) 57 FCR 451 at 462, albeit in a different statutory context, but it was applied in a similar statutory context in Carrascalao v Minister for Immigration and Border Protection (2017) 252 FCR 352 at [46]. The decision in question in Carrascalao was a decision under s 501(3) to cancel a visa if the Minister reasonably suspects that the visa holder does not pass the character test and is satisfied that the cancellation is in the national interest.
73 As the Full Court observed in Carrascalao at [48], however, "a finding by the Court that the Minister has not engaged in an active intellectual process will not lightly be made and must be supported by clear evidence, bearing in mind that the judicial review applicants carry the onus of proof".
74 Mr Makarov's contention that the Minister did not engage in such a process in the present case arises from the Minister's failure to give reasons or "appropriate reasons".
75 The respondents did not quarrel with Mr Makarov's submission that the Minister failed to comply with his statutory obligation to give reasons. They did not suggest that what purported to be reasons answered the statutory description. Nor did they suggest that the Minister adopted the Department's submissions as his reasons.
76 Rather, the respondents submitted that any failure by Mr Andrews to comply with the obligation to give reasons did not invalidate the decision, relying on s 47(5) of the Citizenship Act.
77 Mr Makarov accepted as much. He noted that in Re Minister for Immigration, Multicultural and Indigenous Affairs; ex parte Palme (2003) 216 CLR 212 the High Court by majority, Kirby J dissenting, held that a provision in similar terms to s 47(5) of the Citizenship Act (s 501G(4) of the Migration Act) operated as intended.
78 In Palme at [33] Gleeson CJ, Gummow and Heydon JJ observed that the obligation on the Minister to give reasons for cancelling a visa on character grounds, imposed by s 501(1) of the Migration Act, could be enforced by an order for mandamus. Their Honours held that s 501(4) did not operate as "an attempted privative clause to achieve the impossible by ousting the [court's] jurisdiction" to grant mandamus under s 75(v) of the Constitution. But their Honours also held at [45]-[46] that the "stipulation" in s 501G(4) that "a failure in notification does not of itself affect the validity of the cancellation" means that failure in the required notification "does not impeach the cancellation decision for jurisdictional error". In other words, as their Honours explained at [48], while the failure to provide reasons may be reviewed by the court and the court may order the Minister to comply with the statutory duty and while the reasons then provided may provide grounds for an order for prohibition, it is not open to a person aggrieved by the decision to "bypass" the use of mandamus and impeach the cancellation decision itself because the duty to provide reasons was not discharged. McHugh J was of the same opinion (see [54]-[59]).
79 As I mentioned earlier, Mr Makarov did not mount an argument that the failure to provide reasons constituted an error of law on the face of the record. Rather, he relied on the absence of reasons to support his allegation that the Minister had not considered the material before him in making his decision. He argued that a failure to give reasons may, and in this case did, give rise to an inference that certain matters were not considered. The matters in question were those to which he referred in [44] of his written submissions set out in [52] above. They also also included Mr Makarov's request that the Minister not make a decision on his citizenship until he had exhausted his appeal rights and the information in Ms Malyon's letter, neither of which was mentioned in the Departmental submission.
80 Of course, a failure to give reasons may give rise to an inference that there was no good reason for the decision: Public Service Board of New South Wales v Osmond (1986) 159 CLR 656 at 663-4 (Gibbs CJ). But that is by no means universally so. And Mr Makarov did not submit that there was no good reason in the present case.
81 Moreover, the mere fact that reasons were not given does not mean that the Minister did not consider the matters he was obliged to consider before he reached his decision. In the absence of reasons, all a supervising court can do is focus on the outcome of the exercise of the power in the relevant factual context and assess the question, for itself "bearing in mind that it is for the repository of the power, and not for the Court, to exercise the power but to do so according to law": Singh at [45].
82 Here, the relevant factual context includes the fact that the Minister received the Departmental submission. What is to be made of that?
83 In Stambe v Minister for Health (2019) 270 FCR 173 at [74]-[75] Mortimer J said;
As a general principle, I consider it reliable and appropriate to infer, consistently with the purpose and practice of ministerial briefing notes, that a Minister reads a briefing note with which she or he is provided, where that briefing note is intended to provide the Minister with sufficient information to make a decision about whether or how to exercise a statutory power. Sometimes there may be evidence which assists the drawing of such an inference, such as handwriting, or marks such as circles or underlining, by the Minister on the contents of a briefing note itself. Such evidence is not necessary for the inference to be available and drawn, but it may be persuasive.
Of course, the drawing of such an inference may be actively contested by admissible evidence. If it is not, then it would tend to undermine the practice of executive decision-making at ministerial level if supervising Courts were to require direct evidence that the contents of each briefing note were read by a Minister. Whether an inference should be drawn in an individual case will remain a matter for each judge in the circumstances, but for my own part I consider this an appropriate general approach.
84 In the present case, there was evidence of the kind to which her Honour referred in Stambe at [74]. The Departmental submission contained handwriting and marks apparently made by the Minister. It is reasonable to infer that the Minister read the Departmental submission before making his decision. While that submission does not satisfy the Minister's statutory obligation to provide reasons, once it is accepted, as I do, that the Minister read the submission, it is reasonable to infer that he took its contents into account and that his decision was based on it.
85 As I indicated earlier, there was no dispute that the conditions in s 34(2) of the Citizenship Act were satisfied in Mr Makarov's case. Nor was there a dispute that, after he had applied to become an Australian citizen Mr Makarov was convicted of a serious offence within the meaning of subs (5). That leaves one matter: the question raised by s 34(3), namely whether the Minister was satisfied that revoking his Australian citizenship would render Mr Makarov stateless. As Mr Makarov submitted, that was a serious matter. Section 34(3) was a legislative enactment of Australia's international obligation under Art 8(1) of the Convention on the Reduction of Statelessness, opened for signature 30 August 1961 and entered into force on 13 December 1975, not to "deprive a person of its nationality if such deprivation would render him stateless".
86 Without reference to authority, the respondents submitted that on its proper construction s 34(3) did not create "a mandatory relevant consideration" because it was a limitation on, rather than a precondition for, the exercise of the power in s 34(2). They contrasted other restrictions on the exercise of power appearing in the Citizenship Act, citing in particular s 17(3), which provides that "the Minister must not approve the person becoming an Australian citizen unless the Minister is satisfied of the identity of the person". Merely because s 34(3) is a limitation rather than a precondition does not mean that the Minister was not bound to consider whether his decision would render the citizen stateless. The failure of the Minister to take into account a relevant consideration, that is to say a consideration he was bound to take into account, is "one instance of an abuse of discretion entitling a party with sufficient standing to seek judicial review of ultra vires administrative action": Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 at 39 (Mason J).
87 The corollary of the respondents' submission is that the Minister's decision would still be lawful even if he deliberately ignored unequivocal evidence that statelessness was the inevitable consequence of his decision. That is most unlikely to have been Parliament's intention.
88 Under the former Act, the Australian Citizenship Act 1948 (Cth), the Minister's power to deprive a person of Australian citizenship was contained in s 21(1). It was similar to the power conferred by s 34(2) of the 2007 Act. The 1948 Act also included a similar limitation on the Minister's power to that included in s 34(3) of the 2007 Act. The analogue of s 34(3) in the 2007 Act was s 23D. Section 23D was inserted by the Australian Citizenship Act 1973 (Cth), the long title of which was "An Act to amend the Citizenship Act 1948-1969". Section 23D was entitled "Special provisions to prevent persons being stateless". According to the Explanatory Memorandum on the Bill that introduced it (in cl 12), the purpose of this provision was to conform to the requirements of the Convention.
89 Subsection 23D(3A) was inserted into the Citizenship Act by the Australian Citizenship Amendment Act 1984 (Cth). It was in the following terms:
Where, but for this sub-section, a person to whom sub-paragraph 21(1)(a)(ii) applies would, if the Minister were to make an order under sub-section 21(1) in relation to that person, become a person who is not a citizen of any country, sub-section 21(1) does not apply in relation to that person.
Subparagraph 21(1)(a)(ii) was the equivalent of s 34(5) of the 2007 Act. The differences are immaterial for present purposes.
90 The effect of s 23D(3A) was that the Minister had no power to revoke the Australian citizenship of a person in Mr Makarov's position if doing so would render the person stateless. According to the Explanatory Memorandum to the Australian Citizenship Amendment Bill 1983, the subsection "operate[d] to prevent persons being rendered stateless as a result of the new provisions in section 21 relating to deprivation of citizenship". Despite the difference in the words used in the 2007 Act, there is no reason to believe that Parliament's intention in enacting s 34(3) was any different. Certainly there is nothing in either the Explanatory Memorandum (EM) or the Revised Explanatory Memorandum (Revised EM) to the 2005 Bill to suggest that Parliament intended to change the law in this respect.
91 Section 15AC of the Acts Interpretation Act provides that:
Where:
(a) an Act has expressed an idea in a particular form of words; and
(b) a later Act appears to have expressed the same idea in a different form of words for the purpose of using a clearer style;
the ideas shall not be taken to be different merely because different forms of words were used.
92 The EM and the Revised EM explained that the Act replaced the 1948 Act and in doing so makes law relating to citizenship in Australia "clearer, better structured and easier to understand".
93 Insofar as they said anything relevant to s 34(3) of the 2007 Act, the EM and the Revised EM noted that the statelessness provisions had been "restructured so that they are located with the related provisions". They also stated that subclauses 34(2) and 34(3), which became s 34(2) and s 34(3), respectively, were "consistent with section 21 of the old Act". That appears to be correct with respect to cl 34(2) but not cl 34(3). Section 21 of the 1948 Act did not contain a limitation on the exercise of the Minister's power in the event that its exercise would cause the person to become stateless. That limitation, as I mentioned earlier, appeared in s 23D(3A) of the former Act.
94 The Bills Digest, No. 72, 2005-06, prepared for debate, supports the notion that the change in terminology was of no consequence. It records that cl 34(3) "prohibits the Minister from revoking a person's Australian citizenship because they have been convicted of a serious offence, if that revocation would result in the person becoming stateless".
95 All that was said about s 34(3) in the Minister's Second Reading Speech (Hansard, House of Representatives, 9 November 2005, p 12) was this:
Existing law provides for revocation when a dual citizen has been convicted, after applying for citizenship, of a serious criminal offence committed before their application was approved. The extension of this provision to include serious criminal offences committed between approval of an application and when the person actually becomes a citizen reflects the existing power to cancel the approval of an application if the person is no longer of good character.
(Emphasis added.)
96 It follows that, contrary to the respondents' submission, the Minister was required to consider whether his decision would have that effect. And that requirement involved engaging in an "active intellectual process".
97 In effect, Mr Makarov's contention was that the Minister did not properly consider whether revoking his Australian citizenship would render him stateless because he did not look behind the advice provided to the Department by the Ukrainian Embassy. That does not equate to a failure to give "active intellectual" consideration to the question. Mr Makarov also pointed to some factual errors in the Departmental submissions, such as it was the Ukrainian Consul rather than the Vice Consul, who provided the advice. But these errors were trivial. The Departmental submission accurately summarised the content of the advice.
98 In oral submissions in reply, counsel for Mr Makarov, Mr Fuller, claimed that the Minister also erred by considering the question of potential statelessness by reference to the wrong version of the relevant Ukrainian law. He argued that Art 19.1 of The Law of Ukraine On Citizenship of Ukraine, which was referred to in the Departmental submission, only came into effect on 1 March 2001. This is about a month after Mr Makarov was granted Australian citizenship. He submitted that the previous law applied and under that law Mr Makarov would have automatically lost his Ukrainian citizenship on acquiring Australian citizenship.
99 This submission took everyone by surprise. As the respondents observed, the submission had never previously been made. It was not raised in any version of the originating application and no application to amend was made at the hearing. The Minister was in no position to meet it. The content of foreign law must be proved. It is a question of fact: Neilson v Overseas projects Corporation of Victoria Ltd (2005) 223 CLR 331 at [115] (Gummow and Hayne JJ). As their Honours said in that case:
The courts of Australia are not presumed to have any knowledge of foreign law. Decisions about the content of foreign law create no precedent. That is why foreign law is a question of fact to be proved by expert evidence. And it is why care must be exercised in using material produced by expert witnesses about foreign law. In particular, an English translation of the text of foreign written law is not necessarily to be construed as if it were an Australian statute. Not only is there the difficulty presented by translation of the original text, different rules of construction may be used in that jurisdiction.
100 That alone is enough to dispose of the submission.
101 In any event, there is no admissible evidence of when Art 19.1 came into force or whether it was capable of affecting events that occurred before it came into force, such as through transitional provisions. The submission rested on opinions expressed in the expert reports attached to Mr Makarov's most recent affidavit. But the use to which that evidence could be put was limited by a ruling made under s 136 of the Evidence Act 1995 (Cth) which prevented reliance being placed on those opinions to prove the truth of them. And no application was made to revoke the ruling.
102 There was no evidence one way or the other that Mr Makarov had made an application which would have resulted in the loss of his Ukrainian citizenship. The advice to the Department, conveyed to the Minister, was in general terms. It did not deal with Mr Makarov's personal circumstances. The Department provided no information to the Minister on the question. In those circumstances, it must be taken that the Minister's consideration of the issue raised by s 34(3) of the Act was incomplete. Before he could decide whether his decision would render Mr Makarov stateless, the Minister needed to know whether Mr Makarov had lost his Australian citizenship. The advice from the Ukrainian Vice Consul did not answer that question. It was generic. All it told him was that a grant of Australian citizenship did not automatically result in revocation of Ukrainian citizenship. In order to determine whether Mr Makarov would be rendered stateless if his Australian citizenship were revoked, the Minister needed to know whether Mr Makarov had "applied accordingly", to pick up on the words used by the Vice Consul in her email of 4 April 2007. He did not have that information. Ms Malyon told the Department before it briefed the Minister that Mr Makarov was obtaining legal advice from the Ukraine in relation to the status of his Ukrainian nationality. Despite the Department's failure to provide them to the Minister, the respondents accepted that the Minister had constructive notice of Ms Malyon's letter and the emails between the Department and the Embassy. But by the time the Minister received the Departmental submission he did not know what that advice was. Having regard to the paucity of information in the Departmental submission and the other documents of which he had constructive knowledge, I am satisfied that the Minister could not have applied his mind to the question of Mr Makarov's prospective statelessness, that is to say, any consideration of this question did not involve an active intellectual process.
103 To this extent, I am persuaded that the Minister did not consider all the materials before him in making his decision. There was a material error in that, had he done so, it could have made a difference to his decision. He could have deferred making the decision until advice had been obtained from the Ukraine about the status of Mr Makarov's nationality. It follows that ground 2 should be upheld.