Posted 12/08/2015 by Elibritt Karlsen
The desired outcome of the Australian Citizenship Amendment (Allegiance to Australia) Bill 2015 is ‘to ensure the safety and security of Australia and its people and to ensure the community of Australian citizens is limited to those who continue to retain an allegiance to Australia’. But is automatic loss of citizenship necessarily the end of the line for those in Australia who are deemed to have repudiated their allegiance to Australia and will they thus be put on the next plane out? One might be surprised to learn that technically, there is nothing in the Migration Act 1958 preventing their removal from Australia, not even if they are entitled to challenge the loss of their citizenship in the courts.
Under proposed changes to the Citizenship Act 2007, any dual national or citizen who (as a result of their conduct or conviction for certain offences) automatically loses their Australian citizenship would not have the statutory right to know that it has been lost, or the basis upon which it was lost. Only when they become aware that they no longer possess Australian citizenship could they challenge this outcome. In that event they could potentially request (though this is not a statutory right) that the Minister exercise his power to exempt them from automatic cessation— though the Minister will have no duty to consider such a request or to provide the reasons for refusing to revoke the cessation. In addition, they could mount a legal challenge in the courts arguing perhaps that the conditions giving rise to the cessation had not been met. However, as discussed in greater detail below, this is not technically an impediment to their removal.
A person in Australia who ceases to be an Australian citizen under one of the new cessation provisions would automatically acquire an ex-citizen visa under section 35 of the Migration Act. But again, because this visa is granted by operation of law, a person might not even know they hold this visa. In fact, under the Migration Act, they would not be entitled to even request evidence of the visa. Nonetheless, if the person departs Australia, the visa would automatically cease and (perhaps unbeknownst to them) they would not be entitled to return to Australia. Otherwise, an ex-citizen visa entitles the visa holder to remain permanently in Australia. An ex-citizen would thus not be placed in immigration detention under section 189 of the Migration Act because, with a valid visa, they would have the status of ‘lawful non-citizen’.
However, the Migration Act provides a number of mechanisms by which a visa can be cancelled. Perhaps most relevantly, the Act empowers the Minister to personally cancel a visa (including an ex-citizen visa) if he or she reasonably suspects that the person does not pass the character test and is satisfied that the cancellation is in the ‘national interest’ (a term which has no statutory definition). It is highly unlikely that the Minister would consider a person to be of ‘good character’ and it to be in the national interest to not cancel the ex-citizen visa after cessation of citizenship in the circumstances mentioned above.
The common law rules of natural justice and the code of procedure set out in the Migration Act do not apply to the Minister’s decision to cancel the visa. Therefore, the Minister is not required to give notice of an intention to cancel the visa, or to give the person the opportunity to comment before the decision is made. Though one can make representations to the Minister to revoke the cancellation, and seek judicial review of the Minister’s decision, the Minister is precluded from disclosing confidential information supplied by a law enforcement or intelligence agency to a court or any other body or person. This would undoubtedly significantly reduce a person’s prospect of success through either avenue as they would not know the particulars of the case against them.
Once a visa is cancelled, the person becomes an ‘unlawful non-citizen’ and thus under the Migration Act, must be placed in immigration detention. In reality, a person in Australia whose citizenship has automatically ceased (and has come to the attention of the Minister) is likely to be placed in immigration detention before they have had the opportunity to challenge the legality of the cessation in the courts, and despite perhaps ultimately succeeding in such a challenge. However, it may never come to that because the Migration Act expressly requires the Department to remove a person in immigration detention from Australia ‘as soon as reasonably practicable’.
Not insignificantly, the Migration Act does not expressly prevent the involuntary removal of people in immigration detention who are entitled to seek judicial review or who are seeking judicial review, though as a matter of policy the Department normally refrains from doing so because (amongst other reasons) the courts may grant an injunction to prevent removal. However, there are a few exceptions to this policy (outlined in the Department’s policy guidelines), such as where:
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the person presents extreme risk of harm to themselves or others in immigration detention or the community, such that the risk cannot be adequately or safely managed in the immigration detention environment
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the person has a history of serial and vexatious litigation and is considered unlikely to succeed in judicial review, or
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the Department has reasonable prospects of defending an injunction application to prevent removal.
Moreover, under recent changes to the Migration Act, for the purposes of achieving removal of a detainee, it is expressly irrelevant whether Australia has non-refoulement obligations in respect of the person under various international human rights treaties to which Australia is a party.
In conclusion, under proposed changes to the Citizenship Act, any dual national or citizen who automatically loses their Australian citizenship may very well find themselves on the next plane out of Australia. This is despite being entitled to challenge the legality of the cessation, the legality of their visa cancellation and despite any non-refoulement obligations that may be owed in respect of them. Technically, the only real impediment to removal following cessation would be a court injunction, but even that would only be possible if the former citizen were provided with sufficient notice of their pending removal and given the opportunity to make an application to the court (neither of which is required under the legislation). If the Government is to achieve the desired outcome of ensuring the safety and security of Australia and its people through the passage of this Bill, it is arguably quite unlikely to invite or facilitate the delay of the removal of a person who has clearly repudiated their allegiance to Australia, if not required to do so.