Egan v Minister for Home Affairs

• Jurisdiction: Australia Federal only
• Judgment Date: 28 May 2021
• Neutral Citation: [2021] FCAFC 85
• Date: 28 May 2021
• Court: Full Federal Court (Australia)

Federal Court of Australia

Egan v Minister for Home Affairs [2021] FCAFC 85

Appeal from:	Egan and Minister of Home Affairs (Citizenship) [2020] AATA 2632
File number:	NSD 971 of 2020
Judgment of:	NICHOLAS, STEWART AND ABRAHAM JJ
Date of judgment:	28 May 2021
Catchwords:	ADMINISTRATIVE LAW – citizenship – appeal from Administrative Appeals Tribunal on question of law under s 44 of Administrative Appeals Tribunal Act 1975 (Cth) – revocation of the applicant’s Australian citizenship under s 34(2) of the Australian Citizenship Act 2007 (Cth) – whether the Tribunal erred – whether discretion to revoke considered separately from public interest – whether the Tribunal considered an open offer made in the proceeding – whether the applicant was a dual citizen of Ireland – limited review of a state of satisfaction – whether if there was uncertainty in relation to the applicant’s dual citizenship that should have been considered in the exercise of the discretion – whether an earlier Tribunal decision was a thing in fact under the Australian Citizenship Act 2007 (Cth) despite being affected by jurisdictional error such as to make effective the applicant’s renunciation of Irish citizenship
Legislation:	Administrative Appeals Tribunal Act 1975 (Cth) ss 43(1), 44 Age Discrimination Act 2004 (Cth) s 15 Australian Citizenship Act 2007 (Cth) s 34, Judiciary Act 1903 (Cth) s 39B Migration Act 1958 (Cth) ss 35(3), 500, 501, 501CA Irish Nationality and Citizenship Act 1956 s 21(1) Convention on the Reduction of Statelessness, opened for signature 30 August 1961, 989 UNTS 175 (entered into force 13 December 1975; [1975] ATS 46)
Cases cited:	Ali v Minister for Home Affairs [2020] FCAFC 109; 278 FCR 627 Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 184; 236 FCR 593 Avon Downs Pty Ltd v Commissioner of Taxation [1949] HCA 26; 78 CLR 353 Ayoub v Minister for Immigration and Border Protection [2015] FCAFC 83; 231 FCR 513 Buck v Bavone [1976] HCA 24; 135 CLR 110 Bushell v Repatriation Commission [1992] HCA 47; 175 CLR 408 Commissioner of Taxation v Addy [2020] FCAFC 135 Haritos v Commissioner of Taxation [2015] FCAFC 92; 233 FCR 315 Hossain v Minister for Immigration and Border Protection [2018] HCA 34; 264 CLR 123 Makarov v Minister for Home Affairs (No 2) [2020] FCA 1275 Minister Administering the Crown Lands Act v New South Wales Aboriginal Land Council [2009] NSWCA 151 Minister for Home Affairs v Waraich [2020] FCA 1513 Minister for Immigration & Multicultural Affairs v Eshetu [1999] HCA 21; 197 CLR 611 Minister for Immigration and Border Protection v CLV16 [2018] FCAFC 80; 260 FCR 482 Minister for Immigration and Border Protection v DRP17 [2018] FCAFC 198; 267 FCR 492 Minister for Immigration and Border Protection v Egan [2018] FCAFC 169; 261 FCR 451 Minister for Immigration and Border Protection v Tran [2015] FCA 546; 232 FCR 540 Minister for Immigration and Multicultural Affairs v Bhardwaj [2001] HCA 71; 209 CLR 597 Minister for Immigration and Multicultural and Indigenous Affairs v SGLB [2004] HCA 32; 78 ALJR 992 Neilson v Overseas Projects Corporation of Victoria Ltd [2005] HCA 54; 223 CLR 331 New South Wales v Kable [2013] HCA 26; 252 CLR 118 Plaintiff S157/2002 v Commonwealth [2003] HCA 2; 211 CLR 476
Division:	General Division
Registry:	New South Wales
National Practice Area:	Administrative and Constitutional Law and Human Rights
Number of paragraphs:	121
Date of hearing:	30 April 2021
Counsel for the Applicant:	I Davidson SC
Solicitor for the Applicant:	Buttar, Caldwell & Co. Solicitors
Counsel for the Respondent:	B Kaplan and M Varley
Solicitor for the Respondent:	Australian Government Solicitor

ORDERS

		NSD 971 of 2020
BETWEEN:	FINIAN JAMES EGAN Applicant
AND:	MINISTER FOR HOME AFFAIRS Respondent

order made by:	NICHOLAS, STEWART AND ABRAHAM JJ
DATE OF ORDER:	28 May 2021

THE COURT ORDERS THAT:

1. The appeal be dismissed with costs.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

THE COURT:

Introduction

1. By amended notice of appeal, the applicant, Finian James Egan, appeals from a decision of the Administrative Appeal Tribunal on 4 August 2020. That decision affirmed the decision of the Minister for Immigration and Border Protection on 5 May 2016 to revoke the applicant’s Australian citizenship under s 34(2) of the Australian Citizenship Act 2007 (Cth).

2. The Tribunal’s decision was a review of the Minister’s decision under s 52(1)(f) of the Citizenship Act. Section 43(1) of the Administrative Appeals Tribunal Act 1975 (Cth) (AAT Act) gave to the Tribunal all the powers that the Minister had under s 34(2) of the Citizenship Act and required the Tribunal “to arrive at the correct or preferable decision in the case before it according to the material before it”: Bushell v Repatriation Commission [1992] HCA 47; 175 CLR 408 at 425 per Brennan J. The appeal from the Tribunal’s decision is brought under s 44 of the AAT Act which gives this Court jurisdiction to hear an appeal from a decision of the Tribunal on questions of law.

3. Before turning to the grounds and substance of the appeal it is convenient to summarise the long history of the matter. But first, it is helpful to set out the relevant legislation.

Relevant legislation

4. Section 34 of the Citizenship Act sets out the circumstances in which the Minister may revoke a person’s Australian citizenship. Relevantly, s 34(2) provides as follows:

(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);

…; and

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

5. Section 34(3) prevents the Minister, in certain circumstances, from revoking a person’s Australian citizenship. It reads as follows:

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

(a) the Minister may revoke the person’s Australian citizenship under that subsection only because of the application of subparagraph (2)(b)(ii); 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.

Background

6. The applicant was born in November 1934 in Ireland and was an Irish citizen from birth. He migrated to Australia from Ireland in 1959 at the age of 25 after having been ordained as a Catholic priest. He served the Catholic Church...