Citizenship May Be Revoked In Special Circumstances

 
 

The minister can revoke citizenship if the person committed a serious offence before obtaining citizenship but was convicted after. Similarly if a person is convicted of an offence under s. 50 of the Act (about misleading statements) the citizenship can be revoked – here is the full provision:

  1. 34 Revocation by Minister

Citizenship by descent or for persons adopted in accordance with the Hague Convention on Intercountry Adoption

             (1)  The Minister may, by writing, revoke a person’s Australian citizenship if:

                     (a)  the person is an Australian citizen under Subdivision A or AA of Division 2 (including because of the operation of s 32); and

                     (b)  either of the following apply:

                              (i)  the person has been convicted of an offence against s 50 of this Act, or section 137.1 or 137.2 of the Criminal Code, in relation to the person’s application to become an Australian citizen;

                             (ii)  the person obtained the Minister’s approval to become an Australian citizen as a result of third‑party fraud within the meaning of subsection (8); and

                     (c)  the Minister is satisfied that it would be contrary to the public interest for the person to remain an Australian citizen.

Citizenship by conferral

             (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:

                              (i)  the person has been convicted of an offence against section 50 of this Act, or section 137.1 or 137.2 of the Criminal Code, in relation to the person’s application to become an Australian citizen;

                             (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);

                            (iii)  the person obtained the Minister’s approval to become an Australian citizen as a result of migration‑related fraud within the meaning of subsection (6);

                            (iv)  the person obtained the Minister’s approval to become an Australian citizen as a result of third‑party fraud within the meaning of subsection (8); and

                     (c)  the Minister is satisfied that it would be contrary to the public interest for the person to remain an Australian citizen.

             (3)  However, the Minister must not decide under subsection (2) to revoke a person’s Australian citizenship if:

                     (a)  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); and

                     (b)  the Minister is satisfied that the person would, if the Minister were to revoke the person’s Australian citizenship, become a person who is not a national or citizen of any country.

Time citizenship ceases

             (4)  If the Minister revokes a person’s Australian citizenship, the person ceases to be an Australian citizen at the time of the revocation.

Note:          A child of the person may also cease to be an Australian citizen: see section 36.

Serious offence

             (5)  For the purposes of this section, a person has been convicted of a serious offence if:

                     (a)  the person has been convicted of an offence against an Australian law or a foreign law, for which the person has been sentenced to death or to a serious prison sentence; and

                     (b)  the person committed the offence at any time before the person became an Australian citizen.

Migration‑related fraud

             (6)  For the purposes of this section, a person obtained the Minister’s approval to become an Australian citizen as a result of migration‑related fraud if and only if:

                     (a)  at any time, the person was convicted of an offence against:

                              (i)  section 234, 236, 243 or 244 of the Migration Act 1958; or

                             (ii)  section 134.1, 134.2, 135.1, 135.2, 135.4 or 136.1 of the Criminal Code;

                            that the person committed at any time before the Minister gave the approval; and

                     (b)  the act or omission that constituted the offence was connected with the person’s entry into Australia or the grant to the person of a visa or of a permission to enter and remain in Australia.

             (7)  Subsection (6) does not apply to a person in respect of an offence if the Minister is satisfied that the act or omission that constituted that offence was not in any way (whether directly or indirectly) material to the person becoming a permanent resident.

Third‑party fraud

             (8)  For the purposes of this section, a person (the applicant) obtained the Minister’s approval to become an Australian citizen as a result of third‑party fraud if and only if:

                     (a)  at any time, another person was convicted of an offence against section 50 of this Act, or section 134.1, 135.2, 135.4, 136.1, 137.1, 137.2, 139.1, 141.1, 142.1, 142.2, 144.1, 145.1, 145.2, 145.4, 145.5 or 149.1 of the Criminal Code, that the other person committed at any time before the Minister gave the approval; and

                     (b)  the act or omission that constituted the offence was connected with the Minister approving the applicant becoming an Australian citizen.

Charge proved but no conviction

             (9)  A reference in this section to a conviction of an offence:

                     (a)  in relation to a law of the Commonwealth—includes a reference to the making of an order under section 19B of the Crimes Act 1914 in relation to the offence; and

                     (b)  in relation to a law of a State or Territory or a foreign country—includes a reference to the making of an order under the corresponding provision of a law of the State or Territory or foreign country in relation to the offence.

An example of citizenship revocation under the old Act is Alkiswani v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 1314 which was a most unfortunate case.  Spender J described the facts:

3 S. 13 of the Australian Citizenship Act 1948… provides for the grant of a certificate of Australian citizenship to a person who applies for it, and the circumstances in which such a certificate may be granted. The applicant’s application for the grant of a certificate of Australian citizenship was approved on 30 October 2001, and he was due to make the pledge of commitment at a public citizenship ceremony on 14 March 2002. However, on 7 March 2002 the applicant had an altercation with a person who was preaching religion in a street near his house. He went to his house, obtained some inflammable liquid, went back to the preacher, poured the lighter fluid on the person of the preacher and set him on fire. The applicant was charged with a number of criminal offences, and before he made the pledge of commitment the respondent withdrew the invitation to the applicant to attend that ceremony and deferred the matter until the police investigation and any criminal charges arising therefrom were sorted out.

The Minister then decided to revoke the grant, initially under s. 14B of the Act until it was realised that provision did not come into force until after the revocation decision. But before the Federal Court the Minister sought to justify the revocation under s.33(3) of the Acts Interpretation Act 1901 which provides:

“33(3) Where an Act confers a power to make, grant or issue any instrument (including rules, regulations or by-laws) the power shall, unless the contrary intention appears, be construed as including a power exercisable in the like manner and subject to the like conditions (if any) to repeal, rescind, revoke, amend, or vary any such instrument.”

The Federal Court concluded:

42 One might infer that the Tribunal in some way accepted that there was a power in the delegate to revoke the grant, but whether it was on one or other or both of the bases contended for by the Minister does not appear. In my opinion, there is power pursuant to s 33(3) of the Acts Interpretation Act 1901(Cth) to revoke the grant of a certificate of Australian citizenship.

43 The Tribunal stands in the shoes of the decision maker, and the task for it was whether the power to revoke should have been exercised favourably or unfavourably to Mr Alkiswani.

44 The Tribunal did not do this. The Tribunal’s reasoning was expressed on the basis that ‘… there were grounds that justified the delegate deciding … he was not entitled to a certificate of Australian citizenship.’ The function of the Tribunal is not to determine whether there were grounds which justified a decision maker in reaching the decision which he made, nor is it the function of the Tribunal to decide that ‘[t]he correct and preferable decision was to revoke the grant.’ (Emphasis added.)

46 There is and was no power in the Tribunal to revoke the grant of a certificate of Australian citizenship to Mr Alkiswani pursuant to s 14B of the Act. Even if there was such a power, it was a discretionary power which was only triggered on condition that if the person were to make a fresh application the Minister would be required to make a decision under s 13 refusing the application. The time to consider whether the Minister would be required to refuse such a fresh application is the time when the decision on whether to revoke the grant of the certificate is being made. None of the circumstances referred to in s 13(11) would be or are relevant in the circumstances of the present case.

47 If it be accepted that the power to revoke the certificate can only be exercised if a statutory criterion for the grant of the certificate did not in fact exist, (or, perhaps, does not now exist), the only possible argument that might be available is that in all the circumstances it was incontrovertible that Mr Alkiswani was not a person of good character, and therefore the statutory criterion in s 13(1)(f) did not, (or does not), in fact exist.

48 Nowhere in the material is this contention expressly asserted, and it is plain that there was never an issue joined on this assertion.

49 Heerey J noted in Leung at 79:

‘… the revocation of the certificate would be in itself a decision attracting the rules of natural justice. The person concerned would be entitled to know the grounds on which it was now said that he or she did not meet the criterion in question, such as not being of good character (s 13(1)(f)), or not possessing a basic knowledge of English (s 13(1)(g)), and to be given the opportunity to put a case.’

50 The decision-making process before the delegate and before the Tribunal was not conducted on this basis. The applicant was denied natural justice at every stage in the process. In those circumstances, and in the absence of any allegation which might provide a lawful basis for the revocation of a decision to grant a certificate of citizenship, it is not appropriate to remit the matter for further consideration.

51 S.  44(4) of the Administrative Appeals Tribunal Act 1976 (Cth) provides:

‘The Federal Court of Australia shall hear and determine the appeal and may make such order as it thinks appropriate by reason of its decision.’

52 For the above reasons:

(1) the decision of the Tribunal of 26 November 2003 is set aside.

(2) the decision of the delegate of the Minister of 26 July 2002 to revoke the grant of citizenship to Mr Alkiswani is set aside.

(3) the respondent is to pay the applicant’s costs of and incidental to this appeal, to be taxed if not agreed.

Barbara Davidson