Revocation of citizenship on the basis of fraud or misrepresentation
The breadth of the provisions
The Bill also re-introduces provisions from in the 2014 Bill that would greatly extend the power of the Minister to revoke a person’s citizenship on the basis of fraud or misrepresentation. Currently, the law provides that citizenship can only be revoked on this basis in relation to the citizenship application itself, and after an applicant or a third party has been convicted in a court.
The Bill would insert a new power that would:
- Lower the threshold so that citizenship could be revoked simply because the Minister was satisfied of fraud or misrepresentation, without any process for receiving notice or responding to that evidence or any procedural safeguards
- Enable revocation on the basis of fraud or misrepresentation by a third party, even where the applicant for citizenship was unaware of such fraud or misrepresentation
- Extend the power to apply to fraud or misrepresentation in relation to a person’s entry or other visa applications for the period of ten years before revocation
- Extend the meaning of ‘fraud or misrepresentation’ to include concealment of material circumstances, and
- Enable the Minister to revoke the citizenship of any children of the affected person.
In effect, the changes would allow a single person, the Minister, to revoke a person’s citizenship, without any legislative procedural safeguards, even in circumstances where it may render a person stateless and where a person is unaware of the fraud or misrepresentation. While the Explanatory Memorandum states that the Minister could consider arguments that a person was unaware of the fraud or would be rendered stateless, the Minister is not required to do so by the Bill. As has become all too common, the Government has provided no evidence as to why such a drastic change is needed.
These provisions both undermine the rule of law, and undermine the security and protection that is the hallmark of citizenship. It would be contrary to the rule of law to allow a member of the executive to deprive a person of rights as fundamental as Australian citizenship, on the basis of information that cannot be properly contested before an impartial tribunal. Further, by making it so much easier for a person to lose citizenship, the provisions undermine the purpose of citizenship, which is intended to confer a permanent and final status.
The likely impact on refugees
The effect of these amendments is likely to be felt disproportionately by people who come by boat. It is a well-documented fact that people fleeing danger and suffering will often misremember or fail to remember the details of their flight or persecution; will often mistrust government authorities; and will commonly need to obtain false documents or use the services of smugglers so they can find safety. The process of obtaining visas is often complex and prolonged, making it harder for people to remember all the details provided in multiple applications to the Department. This is compounded by the need to rely on translators and interpreters to communicate key details in stressful interactions. There is also the stress of trying to learn how to live in Australia at the same time where their right to live and work lawfully is often precarious, and the significant mental health consequences arising from their persecution and, too often, their experiences of torture and trauma.
In these circumstances, it is all too easy for discrepancies, inconsistencies and misunderstandings to arise, and for decision-makers to disbelieve their accounts of persecution and flight. Similarly, it is easy to see how the Minister could readily perceive such discrepancies, inconsistencies, or misunderstandings to constitute ‘misrepresentation’ in the broad sense envisaged in this Bill, but very difficult to see how a refugee could be expected to explain or contest such findings of the Minister.
Risk of leaving children stateless
RCOA is particularly concerned by provisions of the Bill which would allow a child’s citizenship to be revoked if the fraud or misrepresentation arises in respect of a child’s own application, even if that would render the child stateless. This is made expressly clear by the Statement of Compatibility, which indicates that potential statelessness would simply be a factor for the Minister to consider in determining revocation. We believe that these amendments are fundamentally incompatible with Australia’s international legal obligations, including under the 1961 Convention on the Reduction of Statelessness, which stipulates that states should not deprive a person of their nationality if doing so would render them stateless.
Further, we do not accept that a child should be held to the same standards as an adult in relation to culpability for (alleged) acts of fraud – particularly where the consequences for the child concerned could be so serious.
RCOA is also greatly concerned that the Bill fails to outline a process or mechanism whereby children rendered stateless by the revocation of citizenship could resolve their status. Merely granting a stateless child an ex-citizen visa will do nothing to address their statelessness, nor will it provide them with the rights and protections associated with citizenship. In the absence of a clear status resolution process for stateless people, the passing of this Bill could result in some children being permanently disenfranchised.
Other changes undermining the law
Limits to merits review
This Bill also re-introduces provisions in the 2014 Bill that empower the Minister to set aside findings of the Administrative Appeals Tribunal (AAT) and to exclude merits reviews of decisions personally made by the Minister in the public interest. We believe that these provisions would grant the Minister an inappropriate level of discretion in decisions relating to citizenship and would thereby significantly undermine the rule of law and the purpose of independent merits review.
The main justification for the provision empowering the Minister to set aside AAT decisions is that the AAT is considered to have made three decisions “outside community standards and expectations”. It provides no information as to why the AAT chose to overturn the Minister’s decision in these cases. It would appear that the scale of the problem is very small even by the Government’s own admission, which raises questions as to why such broad and potentially far-reaching powers are needed.
The provision to immunise personal decisions of the Minister from merits review is justified on the basis that the “as an elected Member of Parliament, the Minister represents the Australian community and has a particular insight into Australian community standards and values and what is in Australia’s public interest.”
The purpose of independent merits review is to ensure that individuals subject to the decisions of government officials are able to receive a fair hearing, in accordance with Australian law. Administrative tribunals are intentionally ‘unelected’ and independent to ensure that their decision-making will not be influenced by political considerations or the vagaries of public opinion. Allowing the Minister to overturn the findings of the AAT and limiting the AAT’s remit in the manner proposed in this Bill would essentially defeat the purpose of independent merits review.
It is also important to note in this context the recent public statements by Ministers including the Minister for Immigration attacking the AAT’s decisions, followed by a very public failure to reappoint many AAT members. Such attacks undermine the integrity of, and the public’s trust in, the merits review system.
RCOA rejects the assertion that judicial review is an adequate substitute for administrative merits review. The role of judicial review is to assess whether a legal error was made in the handling of a particular case, not whether the case itself has merit. As such judicial review must be seen as a complement to (not a substitute for) merits review, as its purpose is fundamentally different. It is not acceptable, in RCOA’s review, to justify the denial of merits review on the basis that a person would have the opportunity to seek judicial review.
As the Senate Committee on the Scrutiny of Bills noted, “a basic value of the rule of law that, in general, laws should only operate prospectively (not retrospectively).” This Bill offends this basic value in two ways.
First, the changes to the ‘ten-year rule’, discussed above, means that children who have grown up in Australia may have reasonably relied on the existing rule, assuming that any changes would not apply to those born before any changes commenced. The effect of this change is that children will be deprived of citizenship even if they would have reached the 10 years required mere days after the Bill is passed. As the Senate Committee on the Scrutiny of Bills rightly observed, “this raises questions of fairness similar to those which may arise when laws retrospectively alter rights and obligations”.
Second, the Bill is intended to apply to citizenship applications made on or after 20 April 2017, the date the government announced its intention to pass the Bill. No justification is provided in the Explanatory Memorandum for why this Bill should be applied retrospectively, or how many people it would affect. In the meantime, citizenship applications are no longer being processed according to the current law.
This is a flagrant breach of the principle of the rule of law. People are entitled to rely on the current law, and not have their existing legal rights suspended through executive action. It is also a breach of our constitutional arrangements. The Australian Constitution is founded on a separation of powers under which Parliament, and not the executive, makes the laws of the land. It is extremely troubling that the Australian Government thinks that, by merely announcing a prospective Bill, it can thereby suspend the existing rights of people in this country.
Strengthening ‘Australian values’
The Bill empowers the Minister to require as part of a citizenship application an Australian Values Statement. The Bill would also require applicants for citizenship to have an ‘adequate knowledge of Australia’s values’. The relationship between this requirement and the Australian Values Statement is unclear.
The content of the Statement is to be prescribed by a legislative instrument, which is not disallowable. The legislation and the Explanatory Memorandum do not indicate what kind of values will be included. In effect, the Australian Values Statement will be defined entirely by the Minister of Immigration, with no parliamentary oversight. As the Senate Committee on the Scrutiny of Bills noted:
Australian values are matters that go ‘directly to the substance of citizenship policy’. The committee considers that matters that go directly to the substance of a policy would appear to be matters that are appropriate for parliamentary oversight.
That Committee indicated a range of ways in which parliamentary oversight could be improved, such as: including some core values in the legislation; requiring positive approval of each House of Parliament before the instrument came into effect; providing that the instrument did not come into effect until the disallowance period had expired; or a combination of these approaches.
While the legislation and the Explanatory Memorandum do not indicate what kind of values will be include, several ‘Australian values’ are identified in the Discussion Paper, including democratic beliefs, freedoms, equality and integration.
These are, of course, not values peculiar to Australians, but rather universal values. For many refugees, these are the values they cherish most, having fled countries which have suppressed democracy and freedom, and which have divided rather than united communities. By singling out these values as Australian, however, a signal is clearly being sent that some of our newer communities do not accept these values.
At the same time, these proposals themselves are inconsistent with some of those stated values. For example, as discussed above, the fact that these proposals have not yet passed Parliament, but that citizenship applications are no longer being accepted on the basis of existing law, is a clear breach of the fundamental principle of the rule of law, and misunderstands that this is a parliamentary democracy, in which Parliament must decide what the new rules are.
Similarly, the impacts of these proposals on women, and the counterproductive effects noted above in relation to domestic violence, are inconsistent with the stated Australian value of rejecting family violence. Most importantly, in their racially discriminatory impact these proposals do not reflect the Australian values of ‘equality of opportunity for all’, and ‘respect of all individuals regardless of background’.