Consideration
40 The Minister's first ground of appeal asserts that the Tribunal erred in law in the exercise of the discretion under s 34(2) of the Citizenship Act by failing to have regard to, and/or failing to treat as a starting point, the Tribunal's satisfaction of the matters in paras (a), (b) and (c) of that subsection.
41 The Minister submits that in exercising its discretion, the Tribunal was bound to take into account its anterior findings that after making their applications for citizenship, the respondents had been convicted of offences for which they were each sentenced to a "serious prison sentence"; and, it would be contrary to the public interest for them to remain Australian citizens. That submission largely coalesces into an argument that the Tribunal erred in failing to take into account the second of those considerations.
42 The Minister also submits that the purpose of citizenship revocation goes beyond merely protecting the Australian community and extends to revoking the citizenship of a person who is not "worthy" or not "deserving" of the conferral of Australian citizenship, and that this was a matter required to be taken into account by the Tribunal.
43 The respondents submit that the Tribunal did not fail to take into account its finding of satisfaction that it was contrary to the public interest for the respondents to remain Australian citizens. They submit that the Tribunal's language indicates it was aware of the link between satisfaction of the preconditions and the exercise of the discretion. This is also said to be indicated by the Tribunal's quotation of passages at [53]-[55] of TRHL, which shows that the Tribunal understood that its public interest findings were not to be cast aside and were a starting point for consideration of the discretion. The respondents also rely upon the Tribunal's observations at [210] as indicating that the Tribunal was including (not disregarding) the public interest in its consideration of the discretionary power, while also undertaking a "broader enquiry".
44 The respondents submit that in considering the exercise of the discretion, the Tribunal made multiple references to the respondents' offending conduct and took into account that the respondents are not of good character. Accordingly, it is said that the Tribunal took into account that the respondents were persons who had committed serious offences and that it was contrary to the public interest for them to remain Australian citizens.
45 The respondents submit that the Tribunal's reasons must be read as a whole and, as the Tribunal undertook a detailed and lengthy analysis of the public interest, it would be an extraordinary reading of the Tribunal's reasons to conclude that it disregarded its own findings when considering the exercise of the discretion.
46 An appropriate starting point for consideration of the parties' submissions is s 21(2)(h) of the Citizenship Act, which provides that a person is eligible to become an Australian citizen if the Minister is satisfied that the person, "is of good character at the time of the Minister's decision on the application".
47 Section 34 of the Citizenship Act then provides, relevantly:
(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:
…
(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);
...
(c) the Minister is satisfied that it would be contrary to the public interest for the person to remain an Australian citizen.
48 There is clear authority that s 34(2) confers a discretionary power on the Minister to revoke a person's Australian citizenship upon satisfaction of the matters identified in paras (a), (b) and (c) of that subsection. In Waraich v Minister for Home Affairs (2021) 286 FCR 45, the Full Court held at [52]:
…[Section] 34(2) confers a discretionary power on the Minister to do a thing (revoke citizenship) the exercise of which is conditioned, inter alia, on forming an evaluative judgment that not to do the thing would permit a situation to persist (continuance of the person's Australian citizenship) that is contrary to the public interest.
49 Their Honours continued at [57]:
…As stated at [52] above, s 34(2) is structured to confer a discretionary power on the Minister to revoke the citizenship of a person the exercise of which is conditioned on the three matters identified in ss 34(2)(a) to (c). First, the revocation must be directed to a person who obtained citizenship by conferral: s 34(2)(a). Second, the person must have been convicted of an offence of a type described in ss 34(b)(i) to (iv). Third, the Minister must be satisfied that it would be contrary to the public interest for the person to remain an Australian citizen: s 34(2)(c). The residual discretion in s 34(2) is only enlivened after all the conditions in ss 34(2)(a) to (c) are met.
50 The first question is whether, in exercising its discretion, the Tribunal (standing in the shoes of the Minister) was bound to take into account its findings that: (1) the respondents had been convicted of serious offences after making their citizenship application; and (2) it was satisfied that it would be contrary to the public interest for the respondents to remain Australian citizens. That question falls to be determined as a matter of construction of the statute.
51 Section 34(2) of the Citizenship Act does not expressly state that the findings concerning paras (b) and (c) must be taken into account in the exercise of the discretion. Accordingly, if the Minister is to be held to be bound to take such considerations into account, that must appear as a matter of implication from the subject matter, scope and purpose of the Act: see Water Conservation and Irrigation Commission (NSW) v Browning (1947) 74 CLR 492 at 505 (Dixon J), Sean Investments Pty Ltd v MacKellar (1981) 38 ALR 363 at 375; [1981] FCR 191 at 25 (Deane J) and Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 at 40 (Mason J).
52 In Jones v Commonwealth of Australia (2023) 415 ALR 46; [2023] HCA 34 (Jones), in the course of determining the validity of s 34(2)(b)(ii) of the Citizenship Act, the High Court examined the purpose of s 34(2), explaining that s 21(2)(h) is integral to determining that purpose. The plurality held at [54] that:
The requirement of s 34(2)(c) that the Minister be satisfied that it would be contrary to the public interest for the person whose citizenship is revoked to remain an Australian citizen furthers the purpose of protecting the integrity of the naturalisation process […] by facilitating reconsideration of the critical question whether the person was of good character at the time of grant without constraining the capacity of the Minister to have regard to subsequent rehabilitation and integration into the Australian community. Were the Minister to purport to invoke the power of revocation of the Australian citizenship of someone convicted of a serious crime for the purposes of retribution, denunciation or deterrence under the guise of being satisfied that it would be contrary to the public interest for that person to remain an Australian citizen, the purported exercise of power would be unauthorised on the basis that the power would have been exercised for an extraneous and improper purpose.
53 Similarly, Gordon J held at [71]-[72] that:
…[T]he mischief to which s 34(2)(b)(ii) is directed is the "gap" created by the possibility of criminal conduct, occurring before the grant but not known about at the time of the grant, that is clearly relevant to the good character criterion of eligibility for citizenship.
54 In Waraich, the Full Court at [54] cited with approval a passage from BFM16 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 312 at [147], where Farrell J held in respect of s 501A(2) of the Migration Act that:
In determining whether or not he or she is satisfied that refusal or cancellation is in the national interest for the purposes of s 501A(2)(e), the Minister is not exercising a discretionary power, but is rather forming an evaluative judgment. That satisfaction is the starting point for the consideration of the exercise of discretion in s 501A(2)(e): [CWY20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2020) 282 FCR 62 (CWY20)] at [79], relying on [Graham v Minister for Immigration and Border Protection (2017) 263 CLR 1 (Graham)] at [57]-[58].
55 In Waraich, the Full Court observed at [57] that the similarities in the structure of s 34(2) of the Citizenship Act and s 501A(2) of the Migration Act are readily apparent. In both sections, the residual discretion is only enlivened when the Minister forms an evaluative judgment that certain conditions are met. The Full Court can be understood to have accepted that the Minister's satisfaction as to the considerations in paras (a), (b) and (c) of s 34(2) of the Citizenship Act is the starting point for the consideration of the discretion.
56 In any event, it can hardly be supposed to be the legislative intention that the Minister, being required to be satisfied of the matters that enliven the discretion, should be free to ignore those matters when exercising the discretion. As was explained in Jones, s 34(2)(b)(ii) facilitates reconsideration of the critical question of whether the person was of good character at the time of grant. It may be noted that the considerations in paras (a) and (b) of s 34(2) naturally also fall for consideration under para (c) in assessing the public interest. After having considered matters such as the nature and seriousness of the person's criminal conduct and any rehabilitation and integration into the Australian community, the Minister may be satisfied that it would be contrary to the public interest for the person to remain an Australian citizen.
57 The Minister's satisfaction under para (c) that it would be contrary to the public interest for the person to remain an Australian citizen then provides an obvious starting point from which the Minister may exercise the discretion. The Minister exercises the discretion by taking into account against that satisfaction any countervailing factors falling outside public interest considerations, such as hardship that may or will be caused to the person and other individuals. There is a clear legislative intention that when considering whether the person's citizenship should be revoked in the exercise of the discretion, the Minister is bound to take into account the matters in paras (a), (b) and (c) of s 34(2).
58 The next question is whether the Tribunal failed to take those considerations into account in the exercise of its discretion. That question coalesces into whether the Tribunal took into account its satisfaction that it would be contrary to the public interest for the person to remain an Australian citizen. The answer must be found by examining the Tribunal's reasons.
59 The Tribunal did not expressly say that it took into account its satisfaction that it would be contrary to the public interest for the respondents to remain Australian citizens in the exercise of its discretion. It is necessary to determine from the reasons whether an inference can be drawn that this was taken into account.
60 In Lafu v Minister for Immigration and Citizenship (2009) 112 ALD 1; [2009] FCAFC 140, the Full Court held at [47]-[54] 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: applied in Minister for Immigration and Citizenship v Khadgi (2010) 190 FCR 248 at [63].
61 In Minister for Immigration and Border Protection v SZMTA (2019) 264 CLR 421, the plurality held at [14]:
The Tribunal's decision on completion of the review is ordinarily required by s 430 [of the Migration Act] to be recorded in a written statement which, amongst other things, "sets out the reasons for the decision", "sets out the findings on any material questions of fact", and "refers to the evidence or any other material on which the findings of fact were based". The section "entitles a court to infer that any matter not mentioned in the s 430 statement was not considered by the Tribunal to be material".
(Footnotes omitted.)
62 There are similar provisions in ss 43(2) and (2B) of the Administrative Appeals Tribunal Act 1975 (Cth).
63 In Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 236 FCR 593, the Full Court held at [47]:
The inference that the tribunal has failed to consider an issue may be drawn from its failure to expressly deal with that issue in its reasons. But that is an inference not too readily to be drawn where the reasons are otherwise comprehensive and the issue has at least been identified at some point. It may be that it is unnecessary to make a finding on a particular matter because it is subsumed in findings of greater generality or because there is a factual premise upon which a contention rests which has been rejected. Where however there is an issue raised by the evidence advanced on behalf of an applicant and contentions made by the applicant and that issue, if resolved one way, would be dispositive of the tribunal's review of the delegate's decision, a failure to deal with it in the published reasons may raise a strong inference that it has been overlooked.
64 It must also be remembered that reasons are, "meant to inform and [are] not to be scrutinised by over-zealous judicial review by seeking to discern whether some inadequacy may be gleaned from the way in which the reasons are expressed": Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272.
65 The Tribunal at [209] set out 16 factors which the respondents' legal representatives submitted should be taken into account when considering the exercise of the discretion. The Tribunal went on at [211] to make nine "positive findings" in favour of the respondents.
66 The Tribunal observed at [210] that exercise of the discretion, "properly requires a decision-maker to carefully consider the personal circumstances of an applicant, and that assessment can, and usually does, result in a broader inquiry than the public interest inquiry".
67 The Tribunal then considered whether revocation of citizenship was likely to result in removal of the respondents from Australia, concluding at [227] that it was not possible nor desirable to speculate on whether that would ultimately happen.
68 The Tribunal considered a submission made by the Minister that a factor favouring revocation was deterrence of other applicants for citizenship from committing or disclosing offences. The Tribunal concluded that deterrence is a valid consideration, although it may be observed that Jones at [54]-[55] now makes it clear that it is not a valid consideration. The Tribunal considered that it had no objective material supporting the proposition that revocation would have a deterrent effect.
69 The Tribunal concluded as follows:
239. In conclusion, the Applicants' are currently serving their sentences and are in the process of rehabilitating themselves. From their behaviour whilst in prison, it is tolerably clear to the Tribunal that they pose would little risk to the community on their release from custody. They were both recommended for parole, but those recommendations were rejected by the then Commonwealth Attorney-General. Apart from their vile behaviour towards Ms MBN, which resulted in them committing various serious crimes, they do not have a criminal or traffic history. They have been active members of the community, involved with their church and have successfully raised four children. Apart from further punishing the Applicants, it is not readily apparent to the Tribunal what benefit the revocation of their citizenship will achieve for the Australian community.
240. For the reasons outlined above, the Tribunal is satisfied that it should not exercise its discretion to revoke the Applicants' citizenship.
70 The only matters referred to by the Tribunal that may be construed as supporting the exercise of the discretion in favour of revocation of the respondents' citizenship were the references to their "vile" behaviour and "serious crimes". All the other matters referred to were neutral or favoured the respondents. There is no clear indication that the Tribunal took into account its anterior satisfaction that it would be contrary to the public interest for the respondents to remain Australian citizens when exercising the discretion.
71 The respondents submit that the Tribunal's quotation of passages at [53]-[55] of TRHL shows that the Tribunal understood that its public interest findings were not to be cast aside when considering the discretion. However, nothing in those passages from TRHL provides any adequate support for that submission.
72 The Tribunal stated at [207] that it, "must give consideration to, and properly weigh, the advantages to the society by exercising the discretion to revoke against the disadvantages to an applicant and other persons…". The respondents submit that this passage indicates that the Tribunal recognised it was required to take into account its satisfaction that it would be contrary to the public interest for the respondents to remain Australian citizens.
73 However, the respondents' submission is inconsistent with the last sentence of [239], where the Tribunal stated that, "it is not readily apparent to the Tribunal what benefit the revocation of their citizenship will achieve for the Australian community". The obvious answer to the doubt expressed by the Tribunal was that it had earlier found at [206] that the "public interest" requirement in s 34(2)(c) of the Citizenship Act had been satisfied.
74 When the Tribunal found at [206] that it was satisfied that, "it would be contrary to the public interest for the [respondents] to remain as Australian citizens", the Tribunal had "particular regard" to the respondents' inability, "to demonstrate that they have regained their good character". That was a reference to the requirement in s 21(2)(h) of the Citizenship Act that the person be of "good character" at the time of the Minister's decision to grant citizenship, which the Tribunal had accepted at [59] was of "particular importance" to the public interest. The Tribunal thereby accepted that in circumstances where the respondents had been granted Australian citizenship on the basis of their good character when, in fact, they had already committed serious criminal offences, and they had not since regained their good character, it was contrary to the public interest for them to remain Australian citizens. That was an implicit recognition that revocation of the respondents' citizenship would benefit the Australian community by protecting the integrity of the naturalisation process.
75 The Tribunal's subsequent and inconsistent opinion that it was not readily apparent what benefit revocation of the respondents' citizenship would achieve for the Australian community is inexplicable. The expression of that opinion indicates that when exercising the discretion, the Tribunal did not take into account the satisfaction it had reached under s 34(2)(c) of the Citizenship Act that it would be contrary to the public interest for the respondents to remain Australian citizens. Accordingly, the Tribunal made an error of law by failing to take into account a mandatory relevant consideration.
76 It is appropriate to address the Minister's submission 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. The Minister's language strays into the realm of denunciation and retribution. The High Court made it clear in Jones at [54] that the power cannot be exercised for such purposes. The Minister's submission must be rejected.
77 However, the Minister's first ground should be upheld.
78 In the course of argument, the Minister's counsel clarified that the second ground of appeal was an alternative to the first ground. Since I have upheld the first ground, the second ground need not be considered.
79 The Minister's third ground asserts that the Tribunal's finding at [239] that, "it is not readily apparent to the Tribunal what benefit the revocation of [the respondents'] citizenship will achieve for the Australian community", was illogical, irrational or unreasonable, in circumstances where the Tribunal had already found that, "it would be contrary to the public interest for the [respondents] to remain as Australian citizens". I would uphold this ground for reasons I have already given at [73]-[75] above.
80 It is necessary to consider the Minister's fourth ground because if it is upheld, it would be unnecessary to remit the matter to the Tribunal for further hearing and determination. The fourth ground asserts that the Tribunal's exercise of discretion in favour of the respondents was not reasonably open to it.
81 The Minister submits that in circumstances where the Tribunal found that the respondents were not of good character at the time of the Minister's decision to grant citizenship and were not of good character at the time of the Tribunal's decision, it was not open to the Tribunal to exercise the discretion against revocation of citizenship. The Minister's submission is that, as a matter of construction of the Citizenship Act, the question of good character is such an overwhelming matter, that no other discretionary factors can overcome a conclusion that the person was not and is not of good character.
82 The Minister's use of expressions such as "bizarre", "incoherent" and "outrageous" to describe the Tribunal's exercise of discretion was, quite frankly, overblown. Leaving that aside, I am unable to accept the Minister's argument.
83 The question of the person's good character both at the time of the Minister's decision to grant citizenship and at the time of the decision as to whether to revoke citizenship is undoubtedly relevant and important to whether, under s 34(2)(c) of the Citizenship Act, the Minister (or Tribunal) is satisfied that it would be contrary to the public interest for the person to remain an Australian citizen. The question of good character remains relevant and important to the exercise of the discretion.
84 However, there is nothing to indicate that good character is the only consideration that may affect the exercise of the discretion, nor that it is a matter of such overwhelming importance that it is incapable of being overcome by any countervailing factors. When the Minister considers, under s 34(2)(c), whether they are satisfied it would be contrary to the "public interest" for a person to remain an Australian citizen, the interests of the person and of other individuals are not relevant except to the extent that they coincide with the public interest (for example, where the person is at risk of deportation, the interests of the person's children might coincide with a broader public interest in avoiding separation of families). Once the preconditions of s 34(2) are met, "a broad, evaluative discretionary power is engaged": Jones v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 137 at [20].
85 Section 34(2) does not identify any particular matters which the Minister is bound to not take into account, nor prescribe any weight that must be ascribed to particular matters, in the exercise of the discretion. The purpose, or at least a purpose, of the residual discretion being conferred must be to allow the Minister to consider matters that were not taken into account when considering the public interest, and which may influence the Minister to make a decision to not revoke notwithstanding the Minister's satisfaction that it would be contrary to the public interest for the person to remain a citizen. The matters the Minister might consider to be appropriate to consider in the exercise of the discretion include detriment, or the potential for detriment, to the person or other individuals resulting from revocation of the person's citizenship. Since "good character" is not an absolute standard, 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 conferral of a discretion under s 34(2) of the Citizenship Act expressed in such broad terms is inconsistent with the Minister's proposition that a finding that a person was not and is not of good character must result in revocation of their Australian citizenship. Accordingly, I reject the Minister's fourth ground.
86 In view of the success of the Minister's first and third grounds, the appeal must be allowed. The Tribunal's decision will be set aside. The matter will be remitted to the Tribunal for hearing and determination.
87 The respondents will be ordered to pay the Minister's costs of the appeal.
I certify that the preceding eighty-seven (87) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Rangiah.