External legal effects as mandatory considerations in administrative decision making

In Minister for Immigration and Border Protection v Egan, a judgment handed down on 8 October 2018, a full court of the Federal Court considered what considerations must be taken into account before a decision whether to revoke a person’s Australian citizenship under s 34(2) of the Australian Citizenship Act 2007 (Cth) can lawfully be made. The Court concluded that the mandatory considerations may include the legal consequences of the proposed decision under other legislation.

The facts

The respondent was born in the Republic of Ireland and immigrated to Australia in 1959. He was a Catholic priest until his retirement in 2009. In 2013, he was convicted of multiple sexual offences against children and sentenced to a period of imprisonment. Because of this, the applicant Minister formed the view that it was not in the public interest for the respondent to remain an Australian citizen. This enlivened the Minister’s discretion to revoke the respondent’s citizenship, which the Minister exercised.

The Administrative Appeals Tribunal set the Minister’s decision aside. In reaching its decision, the Tribunal reasoned that it was relevant to consider evidence to the effect that if the applicant was required to return to Ireland, he would be likely to become isolated and would thus be more likely to reoffend. The Tribunal considered that this was a matter that militated against exercising the discretion to revoke the respondent’s citizenship. The Minister appealed from the Tribunal’s decision to the Federal Court on a question of law under s 44 of the Administrative Appeals Tribunal Act 1975 (Cth). In a separate proceeding heard concurrently with the Minister’s appeal, the Minister sought a writ of certiorari to quash the decision.

Decision on appeal

In allowing the Minister’s appeal, Perram J (with whom Allsop CJ and Jagot J agreed) observed that it was an ‘unstated assumption’ underlying the Tribunal’s decision that if the respondent’s Australian citizenship was revoked, he would be required to return to Ireland. This raised the question whether the Tribunal had erred by failing to have regard to the fact that if the respondent’s citizenship was revoked, he would not necessarily be required to leave Australia. Rather, pursuant to s 35 of the Migration Act 1958 (Cth), he would be taken to have been granted an ex-citizen visa authorising him to remain in, but not re-enter, Australia.

In Perram J’s view, the Tribunal had so erred. In this regard, his Honour described the Australian Citizenship Act and the Migration Act as ‘something of a binary system operating closely in tandem’. Under this system, the Migration Act attaches consequences to the loss of citizenship in a way that ‘makes no sense without the Citizenship Act‘, while the Australian Citizenship Act confers citizenship on permanent visa holders in a way that ‘can only operate in parallel with the Migration Act.’ The close connection between the operation of the two Acts meant that an obligation to consider what consequences would flow under the Migration Act from the revocation of a person’s Australian citizenship was necessarily implied by the subject matter, scope and purpose of the Australian Citizenship Act. It was unnecessary to decide whether the Australian Citizenship Act also required that the Minister’s power under s 501 of the Migration Act to revoke an ex-citizen visa be taken into account before a decision was made whether to revoke a person’s Australian citizenship.

The fact that the Tribunal had failed to take into account a mandatory consideration before deciding whether to affirm or set aside the Minister’s decision to revoke the respondent’s citizenship meant that an error of law had been established. The Minister’s appeal was therefore allowed. In accordance with its usual practice, the Court dismissed the Minister’s application for judicial review as unnecessary and declined to grant a writ of certiorari to quash the Tribunal’s decision. However, it would seem to follow from Perram J’s reasoning that the Tribunal’s decision was tainted by jurisdictional error and that it would have been liable to certiorari in the absence of a statutory appeal mechanism.

Beyond its direct effect on decision-making under s 34 of the Australian Citizenship Act, the judgment in Egan underlines the fact that the permissible and mandatory considerations that are relevant to an administrative decision are not always to be found in the legislative provision that authorises the making of the decision, or even in the Act that authorises it. Rather, in the same way that the types of conditions that may lawfully be attached to a statutory licence or approval may in some cases have to be determined by reference to a range of Acts and instruments touching on the relevant subject matter, determining what considerations are relevant to the making of an administrative decision requires attention not only to the statutory source of the decision-making power, but to the wider legislative context in which it appears.

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