Makarov v Minister for Home Affairs (No 2)

• Jurisdiction: Australia Federal only
• Judgment Date: 31 August 2020
• Neutral Citation: [2020] FCA 1275
• Court: Federal Court
• Date: 31 August 2020

Federal Court of Australia

Makarov v Minister for Home Affairs (No 2) [2020] FCA 1275

File number:	NSD 1891 of 2019
Judgment of:	KATZMANN J
Date of judgment:	31 August 2020
Catchwords:	ADMINISTRATIVE LAW — jurisdictional fact — where s 34(3) of the Australian Citizenship Act 2007 (Cth) imposes limitations on the exercise of the power to revoke Australian citizenship and one such limitation is that the Minister is satisfied the person is “a person who is not a national or citizen of any country”, whether the question of whether the person would become such a person upon revocation of Australian citizenship is a jurisdictional fact
Legislation:	Australian Citizenship Act 2007 (Cth) s 34 Judiciary Act 1903 (Cth) s 39B Migration Act 1958 (Cth) ss 36(2), 65(1), 198A(3)(a)
Cases cited:	Ali v Minister for Home Affairs [2020] FCAFC 109 Buck v Bavone (1976) 135 CLR 110 Commissioner of Taxation v Addy [2020] FCAFC 135 Corporation of the City of Enfield v Development Assessment Commission (2000) 199 CLR 135 Federal Commissioner of Taxation v Consolidated Media Holdings Ltd (2012) 250 CLR 503 FER17 v Minister for Immigration, Citizenship and Multicultural Affairs (2019) 269 FCR 580 Minister Administering the Crown Lands Act v New South Wales Aboriginal Land Council [2009] NSWCA 151 Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611 Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611 Plaintiff M70/2011 v Minister for Immigration and Citizenship (2011) 244 CLR 144 QBE Insurance (Australia) Ltd v Miller [2013] NSWCA 442 VSAB v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 239 Wilkie v The Commonwealth (2017) 263 CLR 487 Derrington, R “Migrating towards a Principled Approach to Reviewing Jurisdictional Facts” (2020) 27 AJ Admin L 70
Division:	General Division
Registry:	New South Wales
National Practice Area:	Administrative and Constitutional Law and Human Rights
Number of paragraphs:	26
Date of hearing:	31 August 2020
Counsel for the Applicant:	Ms M Yu
Solicitor for the Applicant:	Human Rights for All Pty Ltd
Counsel for the Respondents:	Mr P Knowles
Solicitor for the Respondents:	Australian Government Solicitor

ORDERS

		NSD 1891 of 2019
BETWEEN:	VICTOR MAKAROV Applicant
AND:	MINISTER FOR HOME AFFAIRS First Respondent ; MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS Second Respondent

order made by:	KATZMANN J
DATE OF ORDER:	31 AUGUST 2020

THE COURT ORDERS THAT:

1. The separate question be answered “no”.

2. Costs of the separate question be costs in the cause.

3. The applicant file and serve any amended originating application by 14 September 2020.

4. The applicant file and serve any additional affidavits by 14 September 2020.

5. The respondents file and serve any affidavits by 28 September 2020.

6. The applicants file and serve any affidavits in reply by 6 October 2020.

7. The respondents file and serve an application book by 9 October 2020.

8. The applicant file and serve an outline of submissions, together with a list of authorities, by 15 October 2020.

9. The respondents file and serve an outline of submissions by 22 October 2020, and provide to my chambers a USB containing the joint authorities and the relevant point in time legislation.

10. No outline of submissions should exceed 10 pages and each must be typed using Times New Roman 12 font and one and a half spacing.

11. The remaining questions be fixed for hearing at 10.15am on 29 October 2020.

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

REASONS FOR JUDGMENT

(Revised from transcript)

KATZMANN J:

1. This is the second of two challenges brought by Victor Makarov to a decision made some 13 years ago to revoke his Australian citizenship. The first was dismissed by the Administrative Appeals Tribunal after it declined to extend the time to review the decision. That was the subject of an unsuccessful appeal to this Court: Makarov v Minister for Home Affairs [2012] FCA 734. This one is an application for judicial review of the decision.

2. The revocation decision was purportedly made under s 34(2) of the Australian Citizenship Act 2007 (Cth).

3. At the time the decision was made, s 34(2) relevantly provided as follows:

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) …

(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) …

(iv) …; and

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

4. By s 34(5), a person is relevantly taken to have been convicted of a serious offence if they have been convicted of an offence under Australian law for which they have been sentenced to a “serious prison sentence” and the offence was committed before they became an Australian citizen. A “serious prison sentence” is defined in s 3 to mean a sentence of imprisonment for a period of at least 12 months.

5. In the present case there is no dispute that the conditions in s 34(2) were satisfied at the time the decision was made.

6. But s 34(3) imposes two limitations on the exercise of the revocation power. It provides:

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.

(Emphasis added.)

7. In other words, the Minister must not decide to revoke a person’s Australian citizenship if the Minister is satisfied that, by doing so, the person would be rendered stateless.

8. Mr Makarov was born in the Soviet Union but raised in the Ukraine where he acquired Ukrainian citizenship. He arrived in Australia in July 1997, the holder of a Subclass 456 visa, and was later granted a permanent Subclass 121 visa. In 2000 he applied for Australian citizenship and on 8 February 2001 he was granted Australian citizenship. After he was convicted of multiple child sex offences, committed before he had been granted Australian citizenship, for which he was sentenced to 12 years’ imprisonment, the Minister decided to revoke his Australian citizenship because he was satisfied that it would be contrary to the public interest for Mr Makarov to remain an Australian citizen.

9. In the present proceeding Mr Makarov seeks an order, pursuant to s 39B of the Judiciary Act 1903 (Cth), quashing the Minister’s decision on the ground that it was beyond the Minister’s jurisdiction. His contention is that the Minister was prevented from making his decision because it would have rendered him stateless and he wishes to adduce expert evidence to support that contention. It is common ground that he may only adduce that evidence if the question of whether the revocation of his Australian citizenship would cause him to become “a person who is not a national or citizen of any country” is a jurisdictional fact. This judgment is concerned with that question only, after an order was made by consent that it be heard separately in advance of any other questions. The question took the following form:

In order to decide whether the Minister exceeded his power under s 34 of the Australian Citizenship Act 2007 (Cth) by revoking the applicant’s Australian...