Minister for Home Affairs v Waraich

• Jurisdiction: Australia Federal only
• Judge: ANASTASSIOU J
• Judgment Date: 21 October 2020
• Neutral Citation: [2020] FCA 1513
• Court: Federal Court
• Date: 21 October 2020

FEDERAL COURT OF AUSTRALIA

Minister for Home Affairs v Waraich [2020] FCA 1513

Review of:	Waraich and Minister for Immigration and Border Protection (Citizenship) [2018] AATA 4524 (5 December 2018)
File number:	VID 1646 of 2018
Judge:	ANASTASSIOU J
Date of judgment:	21 October 2020
Catchwords:	MIGRATION – application for judicial review of a decision of the Administrative Appeals Tribunal setting aside decision of Minister for Home Affairs to revoke citizenship – whether Tribunal erred in failing to take into account admitted dishonesty for which there were no convictions – whether Tribunal erred in failing to consider seriously advanced and clear arguments by the Minister – whether Tribunal erred by misunderstanding or misconceiving the Minister’s submissions – whether Tribunal misunderstood or misconstrued s 34(2) of the Australian Citizenship Act 2007 (Cth) – application granted
Legislation:	Administrative Appeals Tribunal Act 1975 (Cth), s 44 Australian Citizenship Act 2007 (Cth), ss 34(2), 50 Migration Act 1958 (Cth), s 234
Cases cited:	Casarotto v Australian Postal Corporation (1989) 86 ALR 399 Dennis Willcox Pty Ltd v Federal Commissioner of Taxation [1988] FCA 123; 79 ALR 267 GBV18 v Minister for Home Affairs [2019] FCA 1132 GPO18 v Minister for Home Affairs [2019] FCA 1067 Minister for Immigration and Border Protection v DRP17 [2018] FCAFC 198; 267 FCR 492 Minister for Immigration and Border Protection v Maioha [2018] FCAFC 216; 267 FCR 643 Minister for Immigration and Border Protection v SZMTA [2019] HCA 3; 264 CLR 421 (2019) 93 ALJR 252 Minister for Immigration and Citizenship v SZRKT [2013] FCA 317; 212 FCR 99 NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No. 2) [2004] FCAFC 263; (2004) 144 FCR 1 Navoto v Minister for Home Affairs [2019] FCAFC 135 TRHL v Minister for Immigration and Border Protection [2016] FCA 376; 69 AAR 192; 152 ALD 488
Division:	General Division
Registry:	Victoria
National Practice Area:	Administrative and Constitutional Law and Human Rights
Number of paragraphs:	47
Date of hearing:	17 September 2019
Counsel for the Applicant:	Mr G. Johnson SC and Mr N. Swan
Solicitor for the Applicant:	The Australian Government Solicitor
Counsel for the First Respondent:	Mr N. Poynder
Solicitor for the First Respondent:	FCG Legal Pty Ltd
Counsel for the Second Respondent:	The Second Respondent filed a submitting notice.

ORDERS

		VID 1646 of 2018
BETWEEN:	MINISTER FOR HOME AFFAIRS Applicant
AND:	RANDEEP SINGH WARAICH First Respondent ; ADMINISTRATIVE APPEALS TRIBUNAL Second Respondent

JUDGE:	ANASTASSIOU J
DATE OF ORDER:	21 OCTOBER 2020

THE COURT ORDERS THAT:

1. The application is upheld.

2. The decision of the Administrative Appeals Tribunal is set aside.

3. There be orders in the nature of certiorari and mandamus remitting the application to the Tribunal to be heard and determined according to law.

4. The First Respondent pay the Applicant’s costs of and incidental to this application.

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

REASONS FOR JUDGMENT

ANASTASSIOU J:

1. On 20 December 2018, the Applicant, the Minister for Home Affairs, applied to this Court for judicial review of a decision of the Second Respondent, the Administrative Appeals Tribunal. The Tribunal set aside a decision of the Minister made on 9 January 2018, by which the Minister revoked the citizenship of the First Respondent, Mr Waraich.

2. For the reasons that follow the application is allowed and the matter is remitted to the Tribunal to be heard and determined according to law.

background

3. The First Respondent was born in India in 1977. He first arrived in Australia on 3 March 1998 on a student visa in the name of Amardeep Singh. That visa was cancelled but later reinstated by the (then) Immigration Review Tribunal. On 30 December 1999, the First Respondent applied for a protection visa which was rejected. In June 2002, he departed Australia as an unlawful non-citizen.

4. In 2004, the First Respondent returned to Australia under the name of Randeep Singh Waraich, as a dependent of his wife, who held a student visa at the time. In December 2006, he was granted a permanent visa as a dependent of his wife, whom by that time held a skilled migration visa. On 8 May 2009, the First Respondent applied for Australian citizenship, which was granted on 14 November 2009.

5. The First Respondent did not declare his change of name or past visa history in either of the visa applications (in 2004 and 2006), or the citizenship application (in 2009) referred to above. Indeed, his name change was identified during a VicRoads interview when it was discovered that Amardeep Singh and Randeep Singh Waraich were the same person. VicRoads referred this to the Department of Immigration and Citizenship who interviewed the First Respondent on 24 January 2012 and 1 May 2012 about the matter.

6. On 27 November 2013, the First Respondent pleaded guilty to and was convicted of an offence under s 50 of the Australian Citizenship Act 2007 (Cth), namely making a false or misleading statement in relation to an application for Australian citizenship. On the same day, he also pleaded guilty to, and was convicted of, two offences under s 234(1)(c) of the Migration Act 1958 (Cth), namely that he furnished, or caused to be furnished, for official purposes a document containing a statement or information that was false or misleading in a material particular.

7. On 9 January 2018, the Minister exercised his discretion under s 34(2) of the Citizenship Act to revoke the First Respondent’s Australian citizenship. That sub-section provides:

(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; or

(ii) ….;

(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); or

(iv) …; and

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

8. The Minister exercised his discretion on the basis that it would be contrary to the public interest for...