Waraich v Minister for Home Affairs

• Jurisdiction: Australia Federal only
• Judgment Date: 26 August 2021
• Neutral Citation: [2021] FCAFC 155
• Date: 26 August 2021
• Court: Full Federal Court (Australia)

Federal Court of Australia

Waraich v Minister for Home Affairs [2021] FCAFC 155

Appeal from:	Minister for Home Affairs v Waraich [2020] FCA 1513
File number(s):	VID 735 of 2020
Judgment of:	BROMBERG, KATZMANN AND CHEESEMAN JJ
Date of judgment:	26 August 2021
Catchwords:	ADMINISTRATIVE LAW - revocation of Australian citizenship under s 34(2) of the Australian Citizenship Act 2007 (Cth) - appeal from decision of primary judge dismissing appeal on a question of law from decision of Administrative Appeals Tribunal under s 44 of the Administrative Appeals Tribunal Act 1975 (Cth) – where the primary judge set aside the Tribunal’s reversal of the Minister’s decision to revoke the appellant’s citizenship – whether the Tribunal erred in its application of; s 34(2) – whether residual discretion is enlivened in circumstances where the Tribunal was not satisfied of a jurisdictional fact on which the power is conditioned – whether materiality is such that the Court should refuse relief - Held: appeal dismissed.
Legislation:	Administrative Appeals Tribunal Act 1975 (Cth), s 44 Australian Citizenship Act 2007 (Cth), s 34(2)
Cases cited:	Allan v Transurban City Link Ltd [2001] HCA 58; (2001) 208 CLR 167 BFM16 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 312 Bushell v Repatriation Commission [1992] HCA 47; (1992) 175 CLR 408 CWY20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 1855 Dennis Willcox Pty Ltd v Federal Commissioner of Taxation [1988] FCA 123; (1988) 79 ALR 267 Egan v Minister for Home Affairs [2021] FCAFC 85 Fastbet Investments Pty Ltd v Deputy Commissioner of Taxation (No 5) [2019] FCA 2073; (2019) 167 ALD 492 Gbojueh v Minister for Immigration and Citizenship [2012] FCA 288; (2012) 202 FCR 417 Graham v Minister for Immigration and Border Protection [2017] HCA 33; (2017) 263 CLR 1 Haritos v Commissioner of Taxation [2015] FCAFC 92; (2015) 233 FCR 315 Minister for Immigration and Border Protection v DRP17 [2018] FCAFC 198; (2018) 267 FCR 492 Minister for Immigration and Border Protection v SZSRS [2014] FCAFC 16; (2014) 309 ALR 67 NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) [2004] FCAFC 263; (2004) 144 FCR 1 TRHL v Minister for Immigration and Border Protection [2016] FCA 376; (2016) 69 AAR 192
Division:	Appeal Division
Registry:	Victoria
National Practice Area:	Administrative and Constitutional Law and Human Rights
Number of paragraphs:	74
Date of hearing:	28 May 2021
Counsel for the Appellant:	G Costello
Solicitor for the Appellant:	FCG Legal Pty Ltd
Counsel for the First Respondent:	N Wood
Solicitor for the First Respondent:	Australian Government Solicitor
Counsel for the Second Respondent:	The Second Respondent filed a submitting notice, save as to costs

ORDERS

		VID 735 of 2020
BETWEEN:	RANDEEP SINGH WARAICH Appellant
AND:	MINISTER FOR HOME AFFAIRS First Respondent ; ADMINISTRATIVE APPEALS TRIBUNAL Second Respondent

order made by:	BROMBERG, KATZMANN AND CHEESEMAN JJ
DATE OF ORDER:	26 August 2021

THE COURT ORDERS THAT:

1. The appeal be dismissed.

2. The appellant pay the first respondent’s 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. The appellant, Randeep Singh Waraich, is a former Australian citizen who presently holds an ex-citizen visa. He appeals from a judgment setting aside the decision of the second respondent, the Administrative Appeals Tribunal. The Tribunal reversed the decision of the first respondent, the Minister for Home Affairs, to revoke the appellant’s citizenship, which the appellant had obtained by conferral. The chain of decisions culminating in the present appeal is as follows.

2. On 9 January 2018, the Minister exercised his discretion to revoke the appellant’s citizenship under s 34(2) of the Australian Citizenship Act 2007 (Cth) because the appellant had been convicted and sentenced for offences under s 50(1) of the Citizenship Act and s 234(1)(c) of the Migration Act 1958 (Cth) and he was satisfied that it would be contrary to the public interest for the appellant to remain an Australian citizen.

3. The appellant sought review of the Minister’s decision in the Tribunal. 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; (1992) 175 CLR 408 at 425 (Brennan J). On 5 December 2018, the Tribunal set aside the Minister’s decision and substituted a decision that the appellant was entitled to have the revocation of his Australian citizenship reversed.

4. The Minister then brought an appeal in this Court in exercise of his statutory right to appeal on a question of law under s 44(1) of the AAT Act. On 21 October 2020, the primary judge upheld the Minister’s appeal, set aside the Tribunal’s decision and remitted the application to the Tribunal to be heard and determined according to law.

5. The appellant now exercises his right to appeal from the decision of the primary judge. To succeed the appellant must demonstrate error in the decision of the primary judge. The appellant raises four grounds of appeal. The first ground contends that although the Tribunal erred in misconstruing s 34(2)(c) of the Citizenship Act, the primary judge was wrong to find that the Tribunal’s error was material. The second to fourth grounds are concerned with the primary judge’s conclusions that the fact-finding process of the Tribunal was infected by error. Again, the appellant contends that the primary judge erred in treating the Tribunal’s errors as material.

6. Notwithstanding the focus on materiality in the notice of appeal, it is to be borne in mind that the jurisdiction conferred by s 44(1) of the AAT Act is directed to questions of law. A question of law within s 44 is not confined to jurisdictional error but extends to a non-jurisdictional question of law: Allan v Transurban City Link Ltd [2001] HCA 58; (2001) 208 CLR 167 at 172 – 173 [11] (Gleeson CJ, Gaudron, Gummow, Hayne and Callinan JJ) ; Haritos v Commissioner of Taxation [2015] FCAFC 92; (2015) 233 FCR 315 at [62], [135], [202] (Allsop CJ, Kenny, Besanko, Robertson and Mortimer JJ). Statutory construction, for example, is always a question of law (Mark Aronson, “Unreasonableness and Error of Law”, (2001) 24(2) UNSW Law Journal 315 at 330) and an error in statutory construction will always be an error of law, however an error in statutory construction will not always be a jurisdictional error.

7. For the reasons that follow, no error has been demonstrated in the decision of the primary...